Updated NYSDEC Policy on Environmental Monitoring Services

Author: John Brusa, P.E.

On November 4th, 2015, the NYS Department of Environmental Conservation (NYSDEC) issued an updated Commissioner’s Policy (CP#64) on Environmental Monitoring Services. This is the first update to the policy since February 20, 1992. 

Environmental monitors are individuals who administer compliance monitoring for regulated facilities and/or activities that need additional oversight.  The updated policy clarifies instances when environmental monitors should be used by the NYSDEC.  Monitoring services may include construction oversight, on-site inspections, oversight of daily operational activities and review of plans and operating documents, etc. 

Many of the solid waste management professionals in New York are familiar with environmental monitors, as many monitors are present at active landfill facilities. However, environmental monitoring services can be implemented by the NYSDEC where it is required by law (such as commercial hazardous waste facilities which landfill as the primary disposal method), where there are concerns on compliance history of the regulated entity, where past facility practices pose a significant threat, or where NYSDEC determines that additional oversight is necessary due to exceptional circumstances. Examples of facilities outside of the solid waste industry that environmental monitors may be utilized include brownfield cleanups, mining operations, manufacturing, water pollution control facilities or any regulated facility, site or regulated activity based on size, throughput, material handling or location. Factors that will be considered include proximity to human use or habitation, drinking water supplies, sole source aquifers, endangered species or environmental justice areas. 

The policy also describes the types of environmental monitors. These include: 

  • Type I Monitor - monitoring is performed by qualified NYSDEC employees who operate under NYSDEC supervision and oversight;

  • Type II Monitor – monitoring is performed by qualified individuals who are employed by another government agency or quasi-governmental entity approved by the NYSDEC, and who operate under NYSDEC supervision and oversight through a written agreement with the NYSDEC, whose services are arranged for by the NYSDEC but are funded by the regulated entity; or

  • Type III Monitor – monitoring is performed by qualified independent individuals or firms directly contracted by the NYSDEC, and who operate under NYSDEC supervision or oversight.   

The determination of the manner in which environmental monitoring services will be provided and if the need is short term or long term, will be made by the NYSDEC in its sole discretion.  All future environmental monitoring services on or after the effective date of this policy will be required to be provided through terms of an environmental permit, order on consent, Commissioner’s order after hearing, judicial order or brownfield cleanup agreement. Other agreement forms, such as a memorandum of understanding or cooperative agreement, must be approved by the General Counsel. Existing memorandums or cooperative agreements in place as of the date this policy will remain in effect for the length of their current terms only. The NYSDEC reserves the right to modify any existing environmental monitoring services agreement.  

The updated policy provides for an annual review of the need and scope of the monitoring services along with the opportunity for a regulated entity to petition for reconsideration of the scope of monitoring services.

A full version of the CP#64 can be found at the following link: http://www.dec.ny.gov/regulations/64558.html