November 8, 2015

Third Anniversary of Superstorm Sandy

By Sam Capasso

It's been three years since Sandy rocked the region and caused enough damage to become the second costliest hurricane in U.S. history at $50 billion in estimated damages. It was a wake-up call on many fronts, resparking discussion of the impacts of climate change and the preparedness of United States against disaster. In these past years, what has happened? Did the disaster make us stronger or did we fail to heed the lessons of the storm?

In many ways, New York State has been using the disaster as leverage to do the things that need to be done and to be prepared for the future. Many of the departments and agencies responsible for New York's critical infrastructure damaged in Sandy took advantage of the Stafford Act Section 406 Hazard Mitigation, rebuilding to higher levels of protection. New York City pushed its agencies to account for 30" of sea level rise over 50 years to utilize a recent change in Federal Emergency Management Agency (FEMA) funding that allowed FEMA to pay for the additional costs of protecting facilities against sea level rise. New York City also was very quick to adopt the more restrictive of the FEMA flood maps as their flood maps went through the regulatory revision process, as well as passing multiple changes to the building code as a result of Sandy, all of which will make the City better able to withstand and bounce-back from future disasters. New York Rising and Build it Back, which both include a residential programs funded by a HUD Community Development Block Grant, have begun the process of acquiring and elevating thousands of homes in areas at high-risk of flooding.

But much of this started while the memory of Sandy was fresh; in the intervening years, the warning and the threat of the storm have begun to fade. A provision in the New York Rising program which requires residential elevations to code compliant has led some communities to ban open foundation types in favor of closed foundations for the purpose of aesthetics. These closed foundations are more expensive and the more private nature of them tends to encourage unlawful use and occupation of that enclosed space, putting people and property at risk of future flooding. Despite New York City's early push for the more stringent flood maps, New York City has filed a technical appeal of the FEMA flood maps that, on the whole, argue for lower flood elevations and less restrictive zones throughout the City.

This is not a new pattern, but what can be done to preserve the lessons taught by a disaster? This was the overall objective of a recent CLE taught by Section Member Sam Capasso, along with Chelsea Holland and Maggie Palmer Saalfield at Touro Law School as part of their Bagels with the Board program. The CLE discussed hazard mitigation planning and the National Flood Insurance Program and FEMA's incentive program, the Community Rating System, which provides community-wide flood insurance premium discounts for communities that go above and beyond the regulatory requirements. The incentive of lower premiums is one way a community can continue the discussion about the impacts of disasters and be better prepared for when they inevitably occur.

Perhaps it is in our nature to forget and just hope that what happened in the past won't happen again. With the move of many government agencies into the new Freedom Tower, it seems even FEMA is susceptible to the creeping sense of security granted by the passage of time.

The statements and opinions above are the author's own, and not necessarily the opinions of any associated parties.

November 7, 2015

Comment Period Open for State Sea Level Rise Projections

As part of a process that began with the Sea Level Rise Task Force and their 2011 report, public comment is open for new sea-level rise projections determined by the DEC. DEC is required by Community Risk and Resiliency Act (CRRA), signed by Governor Cuomo in September 2014, to adopt state sea-level rise projections. CRRA requires applicants for certain permit and funding programs to demonstrate consideration of future physical risks due to sea-level rise, flooding and storm surge.

The proposed regulation and support documents are available on DEC's website at

Public comments on the proposed regulation will be accepted following publication in the State Register through December 28. New York will establish official State sea-level rise projections by early 2016.

Additionally, there will be a public meeting, with details as follows:

Community Risk and Resiliency Act
Stakeholder Update Meeting
Monday, November 16, 2015, 9:00 a.m. - 12:00 p.m.
625 Broadway, Albany, PA-129

The New York State Department of Environmental Conservation will host a meeting for all interested stakeholders to provide information and receive input on DEC's development of guidance for implementation of the Community Risk and Resiliency Act (CRRA).

Governor Andrew Cuomo signed CRRA in September 2014 and, in his 2015 Opportunity Agenda, directed DEC to gather stakeholder input on implementation of CRRA. A summary of CRRA's provisions and affected programs is here; additional information on CRRA is available at

The meeting objectives and webinar information are described in the agenda.

This meeting will be held at DEC headquarters at 625 Broadway, Albany. Directions and parking information are available at

Individuals wishing to attend the meeting in person are strongly encouraged to pre-register to avoid delayed admittance to the building. Pre-register by e-mailing no later than noon, Friday, November 13. Please include the words "CRRA Pre-registration" in the subject line. All persons must present government-issued photographic identification to be admitted to the building.

September 20, 2015

NY Environmental Enforcement Update July 2015, Vol. II # 7

By Michael J. Lesser, Environmental Law Section, NYSBA © 2015

Enforcement News

DEC Commissioner Joe Martens Resigns

NYS Department of Environmental Commissioner Joe Martens announced his resignation effective the end of July 2015. Mr. Martens assumed the position in 2011, and will return to the Open Space Institute (OSI). Executive Deputy Commissioner Marc Gerstman will be the Acting Commissioner for the immediate future.

Under his tenure, the agency has been very active in making environmental and energy enforcement policies in such areas as: brownfields reform; the natural gas fracking ban; crude oil train regulation; liquefied natural gas (LNG) planning; petroleum and chemical bulk storage (PBS-CBS) reform; updated CAA compliance; sewage spill reporting; enforcement audit incentive policy; and invasive species prevention.

Pressure Builds on GE to Maintain PCB Dredging

State legislators have joined the growing public movement to persuade GE to move beyond its legal obligations and agree to dredge other parts of the upper Hudson River watershed to remove hazardous PCB sediments.

BP and Gulf States Reach 18.7 Billion Dollar Settlement

The four states most impacted by the massive Deepwater Horizon oil spill reached an $18.7 billion federal court settlement with primary responsible party, BP. The award will compensate parties for economic losses and natural resource damages and will also resolve: Clean Water Act (CWA) penalties; natural resources damage claims; economic claims; and the economic damage claims of local governments. BP stated that its spill-related costs will already exceed $42 billion not including this settlement. The NY regulated community should take heed of the exponential rise in pollution costs nationwide.

US Supreme Court Denies EPA Mercury Emissions Authority

The US Supreme Court blocked an Environmental Protection Agency regulation meant to limit emissions of mercury and other toxic pollutants from coal-fired power plants. Plaintiffs had challenged the agency's ability to regulate the emissions because it had failed to perform a cost benefit analysis. Implementation costs have been estimated to be in the billions of dollars.

Riverkeeper Issues Annual Hudson River Quality Report

One of NY's most noted conservation organizations outlines the successes and numerous shortcomings of a formal Hudson River cleanup effort that is now in its fiftieth year.

The Albany Times Union takes a slightly more optimistic view of overall water quality of the Hudson River.

DEC Proposes New Part 200 Regulations

The Department is proposing to revise 6 NYCRR Part 200, General Provisions to incorporate by reference new and updated federal New Source Performance Standards (NSPS) and National Emission Standards for Hazardous Air Pollutants (NESHAPs). The proposed regulations also address flexibility for small business and municipal applications.

New Tappan Zee Bridge Book Explains (almost) All

Author Philip M. Plotch's has written "Politics Across the Hudson: The Tappan Zee Megaproject" (Rutgers University Press) which attempts to explain the decades of odd and expensive decisions surrounding the replacement of this crucial bridge. This includes the environmental impacts of siting a bridge at the Hudson River's second-widest point.

And speaking of bridge impacts, NYS spent more than $686,000 for outside lawyers in the abandoned effort to litigate an EPA Region 2 rejection of the state's attempt to use federal clean water funds to finance non-environmental bridge construction.

Time (and New Water Filters) Heals All Groundwater Pollution

Fluctuations in groundwater sampling results at the old Dewey-Loeffel superfund site illustrate the technical difficulties in remediating and monitoring the condition of one of the state's oldest hazardous waste dump sites.

Adirondack Group Critical of State Management

The nonprofit Adirondack Wild: Friends of the Forest Preserve, issued a report that contends that the state agencies (APA, DEC) assigned to protect the Adirondack Preserve have failed to take actions to limit public use of some heavily overused areas of the preserve among other shortcomings.

APA Moves against Invasive Water and Land Species

The Adirondack Park Agency (APA) has issued two general permits to allow the DEC and the NYSDOT to remove invasive and destructive plants from Adirondack Forest Preserve waterways.

APA Enacts Emergency Projects Regulations

The Adirondack Park Agency Has enacted new regulation at 9 NYCRR § 572.15 for emergency projects effective June 17, 2015. The regulations "establish when land use or development is an emergency project and therefore exempt from the Agency's normal regulatory review."

People in the News

Changing of the Guard at the DEC

DEC commissioner Joe Martens will be leaving the agency before the end of July to return to the non-profit sector with the Open Space Institute. The environmental Law Section wishes him well in his new endeavors. Marc Gerstman will assume leadership of the agency as Acting Commissioner.

Early Retirement by Judge Read

Associate Judge Susan Read is retiring early from her term on the NY Court of Appeals. Appointed to the state's highest court by Governor George Pataki, Judge Read previously held several environmental positions both in government and private practice. She often rendered the Court's environmental decisions.

New Leadership announced at ENRD

Assistant Attorney General John C. Cruden announced new leadership staff positions in the Environment and Natural Resources Division (ENRD) with the appointments of Varu Chilakamarrias as Chief of Staff and Patricia McKenna as General Counsel and Attorney Educational Coordinator.

Energy Enforcement

No. 6 Heating Oil Now Illegal in NYC

The dirtiest burning grade of heating oil (No. 6) is now illegal in New York City. Residential buildings are required to switch to cleaner burning No. 4 or No. 2 fuel oils. However, approximately 250 building are still not in compliance and may be subject to enforcement by the City.

Gas Tops Coal for the First Time

Research indicates that natural gas now provides 31% of US power generation. Coal is second at 30%, with nuclear fading to third at 20%. The shift is attributed to falling natural gas prices due to the widespread national use of hydraulic fracturing (fracking) to extract the stuff.

DEC Makes State Gas Fracking Ban Official - Maybe

NY finally ended the state's natural gas hydraulic fracturing (fracking) saga after seven years of administrative review by issuing an official Findings Statement. That in turn was based on the Supplemental Generic Environmental Impact Statement (SGEIS).

But is it really over? It did not take long for a legal challenge to the state's new fracking ban to be filed.

Fracking with Propane: A Viable Alternative?

Despite the NY hydraulic fracturing (fracking) ban (see above), a group has applied for a permit to frack for gas using a distinctly different method. Instead of copious amounts of water, the proposed alternative process uses injected but largely recoverable propane to fracture and release the natural gas trapped in the Marcellus Shale formation.

Port Operator Decries 2-Yr. Permit Delay

In a letter to DEC, the Port of Albany operator has demanded that the agency proceed with processing its application to amend its air pollution permit despite pressure from the public to delay or deny the permit application. Underlying the opposition is the resistance to crude oil trains running into the Port. The amended permit would allow the use of an oil heater to ease oil deliveries in winter.

More Calls for NY Oil Train Ban

As previously posted, calls continue for Governor Cuomo to invoke the state's ECL Summary Abatement authority to ban crude oil trains as imminent hazards due to tragic accidents in Canada and elsewhere.

Albany Crude Exports Down, But Still Substantial

Crude oil exports via the Port of Albany are down in a sluggish oil market, but still topped more than one-half billion dollars in value.

FERC Seeks Gas Pipeline Comments

Federal regulators have asked for public comments on the increasingly controversial Northeast Direct (NED) natural gas pipeline which is proposed to run through the Albany area. Equally controversial are the nine new compressor stations needed to keep the gas moving through the pipeline.

State & Local Enforcement

Oil Dumper Apprehended

A Schenectady man faces felony charges for dumping 125 gallons of waste oil - a NY hazardous substance) into a city storm drain. Charges may include the Class E Felony found at ECL 71-2712.

Hazardous Waste Prosecutions Rise

The Environmental Conservation Law Offenses: Hazardous Waste and Waste Disposal 2014 Annual Report compiled by the NYS Division of Criminal Justice services (NYSDCJS) indicates more criminal prosecutions than in previous years (see Table, Report p. 1). Previously, years 2011-2013 showed only one reported hazardous waste crime.

Susquehanna River Basin Commission 2014 Annual Report

Among the obscure yet important federal environmental agencies serving NY, the SRBC still churned out more than 1400 inspections and audits in 2014, leading to over 100 Notice of Violations and 15 penalty enforcement actions (Report p.4). The Executive Board includes NYS representation.

Of course, as is our tradition, the mere mention of the "S" word leads to the following indispensable discourse.

Fraudulent Asbestos Engineers Indicted (Richmond Co. DA)

Two professional engineers-certified asbestos investigators were indicted on 36 counts under the NY Penal Law for offering a false instrument for filing and falsifying business records after they submitted false asbestos assessment reports for work done at least eight Staten Island locations. This is at least the third state or federal prosecution of fraudulent asbestos inspectors this year (see the Update, May 2015).

Federal Enforcement

High Seas Oil Dumper Sentenced (Dist. Of New Jersey)

The Chief Mate of a cargo vessel in route to New Jersey was sentenced to three months by a federal court for failing to maintain an accurate oil record book in violation of the Act to Prevent Pollution from Ships (APPS). APPS requires covered vessels to maintain a record known as an oil record book in which all transfers and disposals of oil-contaminated waste must be accurately recorded. At defendant's direction, the ship's crew dumped oil near Florida. The ship's owner had previously paid a fine of $750,000.

Something's Fishy at the Fish Market (EDNY)

A federally-licensed NY fish dealer and its company president pleaded guilty to federal felonies for covering up purchases of illegal fluke (summer flounder), and other species harvested in violation of the federal Research Set-Aside (RSA) Program. The president pleaded guilty to two counts of wire fraud, one count of aiding and abetting mail fraud and one count of falsification of federal records for fraud schemes involving two Long Island based trawlers.

EPA Criminal Videos Now Online

EPA has issued a number of informative enforcement videos via the EPA YouTube channel.


New Nail Salon Law in Effect

This relatively recent and ubiquitous industry sector is now under rigorous scrutiny by NYS, primarily via the Secretary of State. While the law focuses on preventing the exploitation of mostly immigrant workers, there are significant environmental and health provisions for protective gear and improved ventilation due to the hazardous chemicals used by the industry. The new law (S 5966/A 730-A) also amends the General Business Law (GBL) to provide for criminal sanctions.

Region 4 Administrative Orders

In the Matter of Shaker Group
Order on Consent
DEC File No. R4-2015-0618-73, Spill# 1402098

Respondent's employee failed to report a petroleum (diesel fuel) spill in violation of Section 12-175 of the NYS Navigation Law (NL) and failed to immediately undertake to contain the discharge in violation of NL Section 176. A penalty of $750, was assessed. Respondent operates a gas station convenience store in Bethlehem.

In the Matter of Lowe's Home Centers
Order on Consent
DEC File No. R4-2015-1213-8

A Latham Lowes Home Center was held to be in violation of eight hazardous waste regulations under various relevant provisions of 6 NYCRR Parts 372, 374 and 376. The parent corporation was assessed a civil penalty of $7,800. Violations related mostly to the collection and storage of retail generated wastes and associated paper work including accumulated waste aerosol cans, paint, pesticides, batteries and fluorescent bulbs. However, one notable violation was for the failure to properly label waste gasoline as "hazardous waste" in violation of regulations at 6 NYCRR 372.2(a)(8)(i)(a). In general, gasoline is excluded from the definition of hazardous waste although it is a NY hazardous substance.

In the Matter of Charles Casale
Order on Consent
DEC File No. R4-2015-0529-56

Respondent operates a recycling facility in Troy that was found to be in violation of numerous sections of the solid waste regulations at 6 NYCRR Part 360. The primary violations included the possession and improper storage of unauthorized solid wastes. A penalty of $10,000 was assessed with $5,000 suspended pending the completion of a schedule of compliance.

DEC Administrative Enforcement Orders, Decisions and Rulings

In the Matter of Call-A-Head Portable Toilets, Inc.; et al; and The City of New York, Department of Citywide Administrative Services
ALJ Ruling, June 9, 2015
DEC FILE NOS.R2-20030505-128, R2-20030505-129

The presiding case ALJ granted a motion to dismiss for the Respondent City of New York (City) for the alleged violation of a special condition of a tidal wetlands permit issued pursuant to 6 NYCRR Part 661. The alleged environmental violations happened after the City relinquished the property to the co-respondents. DEC staff had argued that the City failed to take "appropriate measures" pursuant to its permit obligations to prevent the subsequent owners and operators from violating environmental standards on the property. The ALJ noted that this special condition standard was vague and inadequate to assert the basis of a cause of action.

In the Matter of U.S. Energy Development Corporation,
Ruling of the Chief Administrative Law Judge on Renewed Motion for a Protective Order
June 1, 2015
DEC File No. R9-20111104-150

In yet another procedural ruling in this lengthy stream pollution case, the Chief ALJ granted the DEC Staff's renewed motion for a protective order in the face of Respondent's convoluted litigation tactics. DEC had previously responded to 14 of 211 items of a Notice to Admit served by Respondent. However, the Chief ALJ held that, "Review of the 197 requests not responded to by Department staff reveals that they go well beyond the scope and purpose of a notice to admit. Those requests do not seek admissions concerning clear-cut, uncontroverted issues of fact or facts that are easily provable. Rather, many of the requests improperly seek admissions on contested ultimate issues concerning the sources of the alleged turbid discharges that form the bases of staff's charges against respondent ... " (citations omitted). The 14 responses were deemed adequate and the unanswered items were "vacated in their entirety."

In the Matter of Excellent Pest Control LLC
DEC Case No. R2-20090810-506
Ruling, July 9, 2015

The ALJ denied DEC staff's motion for a 6 NYCRR Part 622.12, order without hearing, because: (i) staff did not satisfy its initial burden to demonstrate its entitlement to judgment as a matter of law; and (ii) respondent's submissions in opposition to the motion raise questions of fact the resolution of which requires a hearing. The ALJ held that the evidence raised a question of fact as to whether the pesticides were applied by respondent or respondent's employee in his capacity as an individual or an independent contractor cap. The undisputed underlying facts involve the unlicensed application of pesticides in violation of Article 33

In the Matter of James R. Smith, Jr.
Commissioner Order, July 2, 2015
DEC Case No. R5-20111108-1076

Respondent was held to have violated ECL 9-0303(1) and 6 NYCRR 190.8(m) for causing the cutting and removal of 284 trees on State-owned forest land in the Town of Malone, Franklin County and the use of motor vehicles on State land in conjunction with the cutting and removal of the trees. A total civil penalty of $74,765.97 was assessed for both violations. The Commissioner rejected the ALJ's finding that separate penalties for the statutory and regulatory violations were duplicative and assessed a combined penalty for each violation at law.

In the Matter of American Auto Body & Recovery, Inc. and Salvatore S. "Sammy" Abate -
Commissioner Ruling, July 2, 2015
DEC Case No. R2-20130905-376

In a rare case, the Commissioner overruled all but one of the ALJ's recommendations and denied DEC's staff's 6 NYCRR Part 622.15 motion for default judgment. The Commissioner issued his ruling because the DEC pleadings did not include "proof of facts sufficient to adequately support those causes of action." Staff had attempted to support the DEC case via an affirmation of counsel which alleged facts but was not based upon counsel's personal knowledge. Furthermore, DEC submitted neither affidavits from those with personal knowledge nor documents relating to the events alleged in the complaint. But the Commissioner did concur with the ALJ by upholding the dismissal of a mistaken attempt by DEC to frame a civil cause of action by using a criminal hazardous substance release statute - ECL 71-2711(3) - which has no direct administrative parallel. The motion was dismissed without prejudice and the matter was remanded to the ALJ for further action.

The underlying allegations involved potentially serious violations of the ECL and Navigation Laws for the abandonment of a leaking petroleum tanker in Queens, NY.

In the Matter of 715 Heights Corp. (190th Street)
Commissioner Order, July 2, 2015
DEC Case No.2-283088JB

The commissioner granted the staff's motion for a default judgment pursuant to 6 NYCRR 622.15, and found that Respondent violated ECL 17-1009 and 6 NYCRR 612.2 for failing to renew the registration of its petroleum bulk storage (PBS) facility located in NYC. A $5,000 civil penalty was assessed. Despite the default the requested penalty was reduced on motion by DEC staff to confirm to a more recent PBS penalty matrix. Respondent maintains a 3,500 gallon above ground petroleum bulk storage (PBS) tank.

Weird News

Common Pesticide and Cancer?

Scientists have squared off over the alleged health hazards of products containing glyphosate, one of the world's most common consumer pesticide/herbicide products.

Camera Shy Bison!

An Australian tourist was injured by an annoyed bison in Yellowstone Park after allegedly snapping photos only 3 to 5 feet from the animal. There must be a good travel safety tip in this somewhere.

Sharknado III - Third Times the Charm

The third summer of this publication also arrives with the release of the third installment of this SyFy series about the worst (and most ridiculous) environmental calamity imaginable. Coincidence? I think not. Actress Tara Reid is hereby nominated as the unofficial celebrity of the NY Environmental Enforcement Update.

The Deadly Sturgeon

In a tragic circumstance, a young boat passenger was killed by a jumping sturgeon on Florida's Suwannee River. These fish can grow to eight feet in length and weigh 200 lbs. Experts doubt that such attacks are deliberate but they have no real explanation for this dangerous animal behavior.

Bambi Runs in Daily Double

A Pennsylvania horse racing track was forced to address some unofficial entrants that got onto the track during a race. And, they're off!


The NY Environmental Section Enforcement Update is a service presented by the Environmental Section of NYSBA which is based on a general survey of approximately twenty-five public government and media websites which report on news relevant to New York's environmental issues. It is by no means comprehensive and is presented for educational purposes only. Neither the author nor NYSBA makes any guarantees as to the accuracy of the sources cited. Please contact Sam Capasso, the Blog Administrator with any additional information or corrections.

Michael J. Lesser is currently Of Counsel to Sive, Paget & Riesel, P.C. in New York and was a former NYSDEC enforcement attorney in the Office of General Counsel.

Message from the Chair, September 2015

At this writing, I am proud to report that the work of the Environmental Law Section has continued unabated through the summer months.

Three August 2015 Environmental-Public Health Calamities

Three major environmental disasters arose during this period: the mining waste spill into the Animas and San Juan Rivers; the Legionnaires Disease outbreak in NYC; and, the hazardous chemical explosion and fire in China.

In Colorado and downstream states, the water supply and environment were threatened when an old Colorado dam holding back mining wastes collapsed during USEPA testing. The resulting spill released large quantities of heavy metals including arsenic into the Animas River and connected waterways of the Colorado River basin.(1)

Closer to home, a deadly outbreak of Legionnaires Disease struck the Bronx and took at least twelve lives. This bacterial based respiratory ailment is often associated with infected but mostly untested HVAC units on older commercial and residential buildings. At this writing, the outbreak appears to be under control despite some unfortunate political gamesmanship between the political powers that be in New York City and Albany. (2)

Finally, Tianjin, China suffered an outright human and environmental catastrophe when a large hazardous chemical storage facility exploded and burned. Pictures of the extreme and widespread carnage in this normally teeming port city are sobering. The causes and long term impacts remain unknown at this time but the loss of life currently numbers over 100. Many victims were injured or are still missing (including many fire fighters). (3)

If there is a common thread that runs through these disparate incidents, it is that better environmental regulatory vigilance and disaster planning may have prevented or mitigated these terrible events.

New Lawyer Trends - Section Membership and Diversity Efforts

Three current trends may impact the ability of all legal service organizations to attract young attorneys. According to statistics cited in a recent Bloomberg Business Week article, bar passage rates dropped significantly for the summer 2014 bar exam.(4) The same article also cites to the statistically significant drop in both law school applications and enrollments in recent years.(5) The New York State bar passage rate also declined in July 2014, from 69% for all test takers to 65%.(6) Finally, it is worth noting that starting with the summer 2016 bar exam, New York will join other states in administering the Uniform Bar Exam (UBE) in lieu of individual state bar exams.(7) The ultimate result will be that law school graduates in UBE participating states will be able to apply for bar admission in all the other UBE states.

NYSBA and other state and national legal organizations have pontificated at length on these issues and the long term impacts on the legal profession. However, I think it is fair - although grossly simplistic, I admit - to say that the numbers and location of young attorneys will be in flux in the near term. Therefore, bar association membership in general and our own Environmental Law Section membership cannot rely solely on new attorneys to maintain our membership. Membership retention must be part of the equation. This means section leaders must provide value and quality services to our members on a regular and consistent basis. To put it another and perhaps more crass way, we are now in a membership competition for limited numbers of potential members based on the quality of our product.

However, in more relevant and immediate good news, our overall section membership appears to be rebounding. As of August 31, 2015, the Environmental Law Section has 998 members. It is worth noting that approximately fifty new members have joined this year alone. The section cabinet is also working with NYSBA membership staff to send membership information to those NYSBA members that indicated that the environment is their practice area even though they are not current section members. This category is estimated to consist of about three thousand NYSBA members. Long term section members will recall that such an initiative has been discussed in the past but never implemented.

Finally, the section cabinet has followed up with our new members by sending each new section member a welcome letter containing an event schedule, section benefit menu and communications/publications information. Approximately fifty such letters have been sent thus far in 2015. To our credit, the NYSBA Membership Department has noticed this simple but effective innovation and it may be adopted by other NYSBA sections.

Section Committee Initiative and Other News

Those that follow such issues will know that the past few section cabinets have tried various methods to reinvigorate our committees. Many have been dormant in recent years. Building on past efforts, committee chairs or co-chairs recently received a cover email and attached model committee report form. The simple form could then be completed and used as the basis of a committee report to the section which would then be published in our various media formats.

In more immediate news, the Brownfields Task Force met throughout the summer to meet tight state deadlines for the submission of comments on draft Brownfields regulations. In particular, the comments focused on the thorny issue of defining an underdeveloped site. In any event, NYSDEC staff and the other stakeholders greatly appreciated the Task Force's guidance and scholarship on brownfields issues.

In what I hope is the new normal, the section's budget issues for the 2016 fiscal year were quietly and quickly resolved by our Treasurer, Kevin Bernstein, and NYSBA staff. The projected 2016 budget is approximately $79,000.00. Currently, a surplus is possible for fiscal 2015, although that all depends on the expenses incurred and revenues received for our fall 2015 activities. The current section surplus (not including 2015 adjustments) stands at approximately
$43,000. This is more than a 100% increase since 2012. Credit and complements are due to the past several section cabinets, event co-chairs, sponsor czar Phil Dixon and NYSBA staff for these financial improvements.

Publications and Media

The section's media outlets also continue to grow and improve. Most recently, more than 150 members have joined the section's private LinkedIn page to current news and information. Credit for this innovation must be directed to Section Vice Chair Larry Schnapf and NYSBA section liaison Lisa Bataille.

To further enhance our social media foot print, more than 1,000 users have enjoyed our section blog, Envirosphere, since 2014. In particular, the section has received many positive comments about the unique NY Environmental Enforcement Update which will celebrate its third anniversary in January 2016. Blog editor Sam Campasso has overseen our success in this endeavor since 2012.

Astute observers will also notice that new information about the section's activities and functions are being added on a regular basis to the content of the ELS homepage. For example, NYSBA staff has started to add the excellent reports drafted by our House of Delegates Representative Linda Shaw and Alternate David Quist. The section must continue to utilize this tool to enhance services and information for our members.

Finally, it goes without saying that the section's signature publication, The New York Environmental Lawyer, continues to represent the highest standards of professionalism and legal scholarship. The recently published Spring/Summer 2015 edition (Vol. 35/No.1) contains eight major scholastic articles in addition to the usual section news and legal and government update features. Congratulations to the members of the Student Editorial Board, Issue Editor Keith Hirokawa and Editor in Chief Miriam Villani for a job well done.

The 2015 Fall Meeting

At this writing, we are nearing the October 2-4, 2015, Fall Section Meeting and associated MCLE program. In pursuit of our goals of increasing membership and enhancing diversity, the section designed a unique two tier registration program. New attorneys in search of transitional MCLE credits and budget relief have the option of registering for a Friday only program focused on administrative trial practice training.

Those that register for the full weekend will experience MCLE sessions addressing current issues in state oil and gas activities, crude oil train regulation and the revised state Brownfield Opportunity Area (BOA) program. There will also be a special Sunday morning program devoted to regulatory developments and the protection of threatened state bat species.

In addition to the MCLE programming, the Section will also enjoy the presentations of two distinguished dinner speakers: Neil Gifford, the Conservation Director of the Albany Pinebush Preserve Commission (Friday); and Bruce Gyori, of Manatt Phelps and Philips, on politics and climate change. This unique and well programmed event is the result of the hard work and creativity of the three co-chairs: Alita Giuda, Gene Kelly and Genevieve Trigg.

November 2015 Brownfields CLE Programs

In a new and exciting venture, program co-chairs Alan Knauf, Maureen Leary and Larry Schnapf and others are preparing a dual upstate-downstate program addressing the recent and significant changes in the New York Brownfield Cleanup Program (BCP) and related statutes, regulations and policies. The recent changes have created both opportunities for redevelopment and confusion in matters such as BCP site eligibility and tax credit calculations. The full day programs are scheduled for November 12th (Albany) and November 17th (NYC).

The 2016 Annual Meeting

The planning and programming for the Annual Section Meeting in conjunction with the NYSBA Annual Meeting is well underway. Co-chairs Susan Brailey, Dan Chorost, John Parker and Nicholas Ward-Willis are planning an exciting program including: the section's first ever in depth look at solar energy law; the legal and planning intricacies of the recent changes to the Clean Water Act; and the status of urban environmental enforcement in New York. Of course, our USEPA section members will present the usual comprehensive USEPA run down on Thursday evening thanks to the organizing efforts of our Section Secretary and USEPA attorney Marla Wieder. The program is scheduled for January 28-29, 2016, as part of the NYSBA Annual meeting that week in New York City.

Please note that the information and schedules above are subject to change. So be sure to check the NYSBA Environmental Law Section homepage for all information on section events and activities.

In closing, I wish to thank NYSBA staff for helping the section in its endeavors. In particular, we all must thank Lisa Bataille, Kathy Plog and Lori Nicoll for their guidance and patience. Of course, our work remains possible due to the contributions of our 2015-16 officers, Larry Schnapf, Kevin Bernstein and Marla Wieder as well as the extended section cabinet.

Finally, I hope to meet many of you at our coming events. If you have any suggestions or comments, please do not hesitate to contact me or any of the section's officers. Remember, to quote the late great radio talk show host Bob Grant, "Your influence counts! Use it!"

Best wishes to all, Michael J. Lesser
Environmental Law Section Chair, 2015-2016


(1) Emergency Response to August 2015 Release from Gold King Mine, USEPA Update, September 10, 2015.

(2) Hughes, State to Deploy Teams to South Bronx for Legionnaires' Testing, Albany Times Union, August 7, 2015.

(3) Jacobs, Death Toll in Chinese Fire Rises, Along With Anger at Apparent Safety Lapses, NY Times August 14, 2015.

(4) Kitroeff, Are Lawyers Getting Dumber, Bloomberg Business Week, August 24 -30, 2015, pp. 50-51.

(5) id.

(6) NYS Board of Bar Examiners, Bar Exam Pass Rates, 2010 - 2014,

(7) Clifford, McKinley Jr., New York to Adopt a Uniform Bar Exam Used in 15 Other States, NY Times, May 5, 2015.

August 23, 2015

Registration is Now Open For Environmental Fall Meeting

Registration for the upcoming Fall Meeting is now open! Below are some details:

Fall Meeting
October 2-4, 2015
The Gideon Putnam Resort
Saratoga Springs, NY

Attendees can get up to 8.0 MCLE credit hours over the course of the weekend, including ethics and transitional credits.

The full list of programming and schedule of events in the Program Agenda.

Some of this year's meeting topics are:

  • DEC Enforcement Hearings: Procedure 101

  • Effectuating Judicial Relief Related to DEC Orders

  • Ethical Issues Arising Out of Administrative Proceedings

  • Current Developments in New York's Oil & Gas Activities

Below is the short version of the schedule of events:

Friday, October 2

  • Transitional CLE Program for Newly Admitted Attorneys

  • Welcoming Cocktail Reception beginning at 6:30 p.m. with dinner following

Saturday, October 3

  • CLE Session 8:45 a.m. to 12:30 p.m.

  • Cocktail Reception beginning at 6:00 p.m. with dinner following at 7:00 p.m.

Sunday, October 4

  • CLE Session 9:00 a.m. to 10:00 a.m.

The price for the weekend's event for NYSBA members is $235. The special pricing for Friday's MCLE program (1:30 - 5:00 p.m.) is only $75. You can find all the pricing at the Section's website.

Ready to book your hotel accommodations?

Please call the resort directly at (518) 584-3000 or 866-746-1077 and reference the group code 9N653P to receive the preferred rate of $189/night plus applicable taxes. The hotel cut-off date is September 2nd. Availability of rooms is not guaranteed up to the cut-off date.

For more questions please contact Lori Nicoll at (518) 487-5563 email

August 1, 2015

NY Environmental Enforcement Update, June 2015, Vol. II, # 6

By Michael J. Lesser, Environmental Law Section, NYSBA © 2015

Enforcement News

Hudson PCB Dredging - Was It Worth It?

Later this year, General Electric Co. expects to finish six years spent removing 2.7 million cubic yards of PCB contaminated river sediment from the Hudson River. The removal was mandated by a federal CERCLA (Superfund) agreement with EPA. Cleanup costs will be approximately $2 billion. However, experts estimate that it may take at least 5-10 years of careful monitoring to determine the ultimate benefit to overall water quality. Quality issues include whether and when to lift the current bans and restrictions on fish consumption.

Dutch Court Orders More GHG Cuts

A Dutch court ordered the government of the Netherlands to cut greenhouse gas (GHG) emissions more than proposed to combat climate change. Supporters hope that this determination can be used as an international precedent to seek similar rulings in other jurisdictions. The plaintiffs had argued that the government has a legal obligation to protect its people against "looming dangers" such as the effect of climate change on a low-lying country like the Netherlands.

E Cig. Crackdown Continues

The NY Attorney General reached agreements with four liquid nicotine retailers whose products were being sold in New York in violation of a law requiring that this form of nicotine be sold in child-resistant packaging. Combined civil penalties of $95,000.00, were assessed. This matter also reaffirmed the old axiom that ignorance of the law is no defense.

NYS Officially Completes Ban on High-Volume Hydraulic Fracturing

DEC has officially prohibited the use of high-volume hydraulic fracturing (HVHF) for the extraction of natural gas in New York State. The issuance of a formal Findings Statement completes the state's seven-year review of this process.

As previously reported, NYS had already indicated that it would enact a ban on HVHF in prior DEC-NYSDOH administrative documents. The Finding Statement represents the final administrative step in the long process to reach this decision as demonstrated by the voluminous record.

Take Heed, EPA Next Gen. Enforcement is here!

EPA plans to continue the implementation of the "Next Generation" enforcement initiative. Under this initiative, the agency will require more electronic reporting for most required environmental compliance reports. This will dramatically increase the quality of this reporting. Therefore experts opine that these improvements in electronic data collection could lead to increased enforcement.

New NY Air Regs Take Effect

DEC has finalized changes to air permit regulations for process related emissions, 6 NYCRR Part 212, Process Operations. These changes become effective on June 14th, 2015, potentially impacting any regulated source that has air pollutant emissions associated with its manufacturing operations. Sources will be required to address the rule when renewing or modifying their air permit, or when applying for a new permit regardless of permit category.

Airplane Emissions Regulation Takes Flight

EPA has started the administrative process to promulgate air pollution rules to limit the amount of greenhouse gas (GHG) emissions from aircraft engines. But, any such rules would not apply to military or recreational aircraft.

Suffolk Co. Joins Albany Co. in Banning Toxic Toys; Statewide Ban Considered

Suffolk joins at least two other NY counties in passing a law that bans the sale of toys with contents that exceed certain toxic levels.

NY legislators propose to establish a list of toxic chemicals that can cause major health problems with a similar statewide ban, the Child Safe Products Act (S.4102/A.5612). The law is now before the state legislature.

Utility Pole Pesticide Fight Looms

Pentachlorophenol (PCP) is a highly effective pesticide and wood preservative commonly used to pre-treat the nations many millions of utility poles and railroad ties. It is also highly toxic. Statewide, utilities are now being challenged over the use of PCP in utility poles. PCP has been long banned from most other products. But, groundwater contamination from the poles is of immediate concern.

State Preemption Further Affirmed (Non-environmental)

This case, People v. Diack, 2015 NY Slip Op 1376 - NY: Court of Appeals 2015, is an interesting decision about state preemption over local laws in a non-environmental area. Here, the Court of Appeals finds that state sex offender laws take precedence over local offender residency restrictions.

Sewage Pollution Rt. To Know - Comments Sought - CSO Grants Available

DEC is seeking public comment on new draft regulations for the state's sewage spill reporting law. It also announced CSO (combined sewer overflow) grant funding for municipal CSO's. The proposed regulations appear at 6 NYCRR Parts 621 and 750.

BCP Regulatory Comments Sought

The proposed rulemaking for the recently revised state Brownfield Cleanup Program (BCP) would "define the terms "affordable housing project" and "underutilized" as part of the eligibility requirements for tangible property tax credits for brownfields in New York City. The "affordable housing project" definition potentially impacts affects tax credit eligibility. The proposed rulemaking also amends the "brownfield site" definition in accordance with the recent statutory amendments."

L.I. Garbage Train Comments Sought

DEC is seeking comments on a draft permit that would allow a Farmingdale facility to be used for one year for transporting baled and bagged municipal solid waste (MSW) to evaluate the effectiveness of various safety, odor and environmental impacts. This highlights the growing problems associated with processing the growing volume of MSW on Long Island.

State Forest Rangers Join the Fugitive Hunt! Annual Report Issued

The DEC Forest Rangers have contributed a significant presence to the large law enforcement contingent searching for the two murderers that escaped the Clinton Correctional Facility (Dannemora prison) in extreme northern NY. Searching rugged terrain is part of the Ranger's usual day at the office.

Recall that the Rangers are a police force separate and distinct from the Environmental Conservation Officers and do a significant amount of criminal and violation enforcement in their own right as indicated in their most recent 2014 Annual report (at pp. 56-58).

2014 Adirondack Park Agency Annual Report Issued

The 2014 APA Annual Report is out. Legal and enforcement summaries can be found at pp. 13-14.

Road Salt - The New Acid Rain?

Extensive environmental damage has been wrought by the heavy doses of road salt applied on wintry upstate NY roadways. Several steps can be taken by the state and local governments to mitigate the negative impacts on water quality caused by salt runoff.

Energy Enforcement

Canada Levels Criminal Charges in Quebec Oil Train Explosion

Canadian prosecutors charged nine parties allegedly responsible for the horrific 2013 Oil train derailment and explosion in Lac-Megantic, Quebec. The tragedy is frequently cited in issues surrounding the Port of Albany crude oil shipments (See item below).

Oil Train Summit Decries Accident Response Risks

The Albany County Sheriff convened a conference for first responders on the dangers of crude oil train accidents. Participants included personnel from out of state areas that have suffered through these disasters (See item above).

Crude Oil Train Financial Assurance Law Proposed

Legislators have proposed a law to compel transporters and handlers of crude oil to maintain adequate financial assurance to cover cleanup costs for a potential oil train disasters.

Are Crude Oil Trains Worth It?

The Albany Times Union analyzed the economic impact of the increased crude oil train traffic for the City. The impact of this industry may be less than thought.

Pressure against Oil Trains Pays Off

Constant public pressure has forced government to reevaluate regulatory standards for the increased numbers of crude oil trains flowing through the Port of Albany.

Local Farmers Fight N.G.

Local Capital District farmers are joining environmental groups to continue the fight against both the proposed Constitution and Northeast Energy Direct (NED) natural pipelines. Both pipelines would serve as a bridge to convey natural gas generated by Pennsylvania's hydro-fracking boom to markets in the Northeast and beyond. Critics also fear that the pipelines may be used to reintroduce fracking in NY where it is currently banned.

Zoning Fight against N.G. Gas Compressor

The Town of Nassau will use zoning to prevent a pipeline company's construction of a proposed 90,000-horsepower natural gas compressor station in rural Rensselaer County. The pipeline company will rely on federal preemption to counter this effort to stop the compressor.

Keep Indian Point Nuke Plant Open!

A trade group argued that closing this nuclear power plant would place an onerous burden on the grid and electricity consumers due to the lack of replacement power sources.

Indian Point Should Close Now!

In response to the item above, Paul Gallay, the president of the Hudson Riverkeeper organization argues for the closure of the aging Indian Point nuclear power plant. He also argues that sufficient power generation exists elsewhere to cover the loss of the plant's energy contribution to the grid.

People in the News

RIT Engineer New EPA Region 2 Division Director

EPA Region 2 announced that Rochester Institute of Technology engineer Dr. Anahita Williamson will be the new Director of the Region's Division of Environmental Science and Assessment in Edison, NJ.

State & Local Enforcement

Costly Fines in Open Burn Ban Crackdown!

DEC law enforcement issued 357 tickets for open burning-related charges during the spring statewide open burn ban that ran from March to May. The charges included 144 violations, 213 misdemeanors and written warnings for infractions including leaving an unattended fire, burning during the ban, unlawful disposal of solid waste and setting a fire that endangers the property of another. Penalties can range up to one year in jail and a $33,500 fine.

Animal Cruelty Sentencing in Albany

An Albany defendant pleaded guilty and was sentenced to 60 days for one misdemeanor count of Torturing or Injuring Animals by Failure to Provide Proper Sustenance, pursuant to NYS Agriculture and Markets Law 353. Defendant intentionally failed to provide food to her four dogs and nine cats.

It's Smarter To Upgrade Than Pay Fines

A major Rotterdam chemical company will be seeking a state permit to install a new thermal oxidizer that will remove hazardous air pollution and reduce greenhouse gas (GHG) emissions. Since 2011, the company has paid significant state penalties for numerous environmental violations detected by DEC.

Federal Enforcement

Marine Polluter Criminally Fined (District of New Jersey)

A commercial ship owner pleaded guilty to failing to maintain an accurate oil record book in violation of the Act to Prevent Pollution from Ships (APPS) and providing false statements to the U.S. Coast Guard concerning the vessel's records. The company was sentenced to pay a criminal penalty of $750,000 and placed on three years of probation. The ship's crew had dumped several barrels of oil wastes into the Atlantic Ocean off Florida while in transit to New Jersey.

FEMA Fraud Indictments (NDNY)

A Schoharie man was indicted on 13 felony counts of disaster-related fraud. The defendant allegedly made false statements and submitted false documents to the Federal Emergency Management Agency ("FEMA") following Hurricane Irene while applying for and receiving benefits paying his monthly rent. These alleged phony documents included fraudulent lease agreements and rent receipts.

DEC Region 4 Administrative Orders

In the Matter of Hess Retail Stores
Order on Consent
DEC File No, R4-2015-0206-10, PBS # 4-163740

Respondent, a convenience store and gas station in the City of Hudson, was assessed a penalty of $1,200, for the failure to secure or maintain monitoring wells and secondary spill containment on petroleum bulk storage (PBS) tanks pursuant to 6 NYCRR Part 613.

In the Matter of Johnston & Rhodes Blue Stone Co.
Order on Consent
DEC File No. R4-2015-0511-58

In a most unusual mining permit violation, a Walton, Delaware County mining company was assessed a $2,000, civil penalty for mining too close to an eagle nest in violation of ECL §71-1305(2) and the underlying permit special condition. Legally, eagles are usually protected by the provisions of Article 11, of the Environmental Conservation Law (ECL). But, prosecutorial discretion allows DEC to choose which law to apply in any given enforcement situation.

In the Matter of Atlas Health Care Linen Service
Order on Consent
DEC File No. R4-2015-0414-51

A Troy, NY commercial linen concern was found in violation of the air pollution standards of 6 NYCRR Part 200.7, for emitting lint into the environment from the external fan of a lint control unit. A civil penalty of $1,000 was assessed. Note: after 26 years, even I have to admit that lint based air pollution is a new one on me!

DEC Administrative Enforcement Orders, Decisions and Rulings

In the Matter of 715 Heights Corp., (170th Street)
Commissioner's Order, June 16, 2015
DEC Case No. 2-601666JB

The Commissioner granted the staff's motion for a default judgement pursuant to 6 NYCRR Part 622.15(b) and ordered Respondent to pay a $5,000.00, civil penalty for
violating ECL 17-1009 and 6 NYCRR 612.2 for failing to renew the registration of its NYC petroleum storage facility on or before the previous expiration date of July 1, 2013.

In the Matter of Wendy Daby
Commissioner's Order, June 16, 2015
DEC Case No. R5-20140225-2100, PBS No. 5-514063

The Commissioner granted the staff's motion for a default judgement pursuant to 6 NYCRR Part 622.15(b) and ordered Respondent to pay a $11,300.00, civil penalty with $8,000.00, suspended for violating five separate petroleum bulk storage (PBS) regulations in 6 NYCRR Parts 612 and 613. The violations derive from the improper closure and maintenance of above ground gasoline storage tanks located at Respondent's convenience store and gas station located in the Vermontville, Franklin County.

In the Matter of Craig D. Kincade
Commissioner's Decision and Order, June 11, 2015
DEC VISTA Index Nos. CO6-20061107-24 and CO6-20080331-9

Respondent allegedly maintained an unpermitted floating dock and stone steps, and cut, removed, injured, or destroyed trees on state forest preserve lands adjacent to the Stillwater Reservoir in the Town of Webb, Herkimer County in violation of ECL 9-0303(1) and (2). Respondent was assessed a civil penalty of $400, with that sum suspended, contingent upon respondent complying with the terms and conditions of the order.

This Decision and Order raises three points of interest:

  • When commencing an action by administrative complaint, Department's staff must amend that complaint - with all of the requisite procedural safeguards - rather than file for a 6 NYCRR Part 622.12, order without hearing, if new information arises subsequent to commencement;

  • An estoppel defense will not apply even if permission for the errant conduct on state lands had been approved by another state agency if DEC approval is also required;

  • A defense based on alleged vested property rights on state lands - here, a right to launch water craft - will likely require an exhaustive historical review of both the law and the individual history of the parcel at issue.

In the Matter of Lopatowski, Anthony d/b/a Safeguard Exterminating Services Inc.
Commissioner's Order, June 11, 2015
DEC File No. R2-20130111-12

The Commissioner granted staff's motion for a default judgment and assessed a civil penalty against Respondent pesticide applicator of $121,000.00, for the numerous and multiple sections of ECL 33-0907(1), ECL 33-1301(8-a), ECL 33-0903, ECL 33-1301(7) and 6 NYCRR Parts 326.7(a), 6NYCRR 325. Violations included operating without insurance, proper registrations, an applicator's certification and related records. On two occasions, Respondent also possessed "restricted use" pesticides without a purchase permit and without being a certified applicator.

Weird News

Corrupt, but Green, Scrap Metal Thieves Caught

Several City of Rensselaer municipal officials were criminally prosecuted for diverting the proceeds derived from recycled scrap metal from the City's coffers to their own pockets. But hey, at least they were still recycling.

Ray Gun Case Status (NDNY)

In the Update's favorite science fiction case, a federal Judge denied defendant's motion to dismiss and the accused "ray gun" KKK terrorist will go to trial in the NDNY.

Attention Earthlings - Another Solar Storm Hits!

This is at least the second major solar storm to hit Earth in 2015. Scientists fear that sooner or later the radiation emanating from one of these powerful phenomena will short circuit our now electronic and digital gizmo laden world.

It's Pollinator Awareness Week! How Did you Celebrate?

Quote, "Governor Andrew M. Cuomo issued a proclamation commemorating the week and affirming that New York State is committed to the promotion of the health and recovery of the pollinator population, which will be the focus of a new state agency task force." That just about says it all.

Annual NY Goose Drive Cancelled

Volunteer geese herders were disappointed when this year's goose drive, scheduled for the Wilson Hill Wildlife Management Unit, was cancelled by the DEC.

I wonder if the goose drive is anything like this one?


The NY Environmental Section Enforcement Update is a service presented by the Environmental Section of NYSBA which is based on a general survey of approximately twenty-five public government and media websites which report on news relevant to New York's environmental issues. It is by no means comprehensive and is presented for educational purposes only. Neither the author nor NYSBA makes any guarantees as to the accuracy of the sources cited. Please contact Sam Capasso, the Blog Administrator with any additional information or corrections.

Michael J. Lesser is currently Of Counsel to Sive, Paget & Riesel, P.C. in New York and was a former NYSDEC enforcement attorney in the Office of General Counsel.

July 5, 2015

NY Environmental Enforcement Update May 2015, Vol. 2, #5

By Michael J. Lesser, Environmental Law Section, NYSBA © 2015

Enforcement News

DEC Hits Hospitals with Hazardous Waste Violations

Two Troy, NY hospitals were penalized almost $35,000 for numerous hazardous waste violations, including improper handling of chemo-therapy wastes and the failure to maintain required records. (See also the Region 4, summaries below).

Albany Toxic Toy Ban Stayed

A federal judge has granted a stay to temporarily halt the implementation of a recent local law banning toxic toys. This case may provide a test case for similar local laws proposed around the state.

Court of Appeals Upholds Municipal SPDES Permits

New York's highest court upheld a state water pollution permit program that allows municipalities with populations under 100,000, to discharge storm-water runoff with less stringent public comment procedures. The decision rejects a challenge from environmental groups who claimed that the public was denied an opportunity to comment on this category of permits. They also claimed that the program reduces incentives to limit pollution. Specifically, the court held that the State Pollutant Discharge Elimination System ("SPDES") permit issued via the program complied with the federal Clean Water Act ("CWA") or state law.

Fracking -- the Drama Continues

DEC finally released the Final Supplemental Generic Environmental Impact Statement (FSGEIS) for high-volume hydraulic fracturing, commonly called "Fracking." The study identifies what the state describes as the "continued major uncertainties about potential significant adverse health and environmental impacts associated with the activity." DEC will next issue a formal and required Findings Statement, in accordance with the State's Environmental Quality Review Act ("SEQRA").

DEC also issued a separate rebuttal to a EPA report that suggested that fracking is not a significant threat to drinking water.

PCB Dredging on Hudson Waterways Considered by EPA

As previously described in the Update, various stakeholders are trying to induce General Electric to extend Hudson River PCB dredging to nearby connected waterways. GE says it is not obligated under its federal consent decree. Stay tuned!

Huge Sewage Spill Goes Unreported

Despite a state reporting law in place, the City of Amsterdam failed to report an estimated 24 million gallon sewage spill into the Mohawk River from its aging and decaying treatment system ("POTW") that occurred in 2013.

State and local authorities are uncertain about the potential health impacts on down river municipalities that draw drinking water from the river.

This author's article describing the Sewage Pollution Right to Know Act will provide additional insights into this topic. Currently there are approximately 650 POTW operating in NY.

Proposed Casino's Hazardous Past Unearthed!

The Casino to be built in Schenectady, NY has an interesting and confusing hazardous waste release history that needs to be deciphered before the project can proceed.

State Ends 90 Day Email Destruction Policy

In the face of bitter opposition, Governor Cuomo ended the automatic deletion of state emails over 90 days old, including environmentally related emails. A new email retention policy is in place.

New State Water Standards Proposed

DEC has issued a hearing report regarding new proposed water quality standards in 6 NYCRR Parts 701 and 703. The new standards will support the "swimmable water" goals of the federal Clean Water Act ("CWA").

Beware Social Media Postings!

If there is any doubt that social media is part of the enforcement landscape, then review this recent DEC Region 4, consent order settlement before hearing. While the case is relatively minor, it demonstrates that the regulatory community should use care before posting news on the internet (See also Region 4, Orders below).

Can EPA Boss Around DEC?

This is the question raised with New York's pending permit decision regarding crude oil heating plant at the Port of Albany. The short answer: Yes, they can under certain circumstances. When federal regulatory programs are delegated to a state pursuant to federal law - such as the Clean Air Act - EPA retains significant oversight and overfilling authority over the state and more importantly, discretion on when to exercise these powers.

NY AG Strongly Supports New EPA CWA rule

New York Attorney General Eric T. Schneiderman joined other AGs in the Northeast in favoring the final "Clean Water Rule" enacted by the EPA and U.S. Army Corps of Engineers (ACOE).

Birds Banned at Statewide Fairs!

NY has joined other states in taking extreme measures to combat a growing national outbreak of a little understood but deadly avian flu that has threatened poultry nationwide.

Finally, Remediation for the Grumman Bethpage Plume

An Order entered into by DEC and Northrop Grumman will be obligate Grumman to participate in the cleanup of groundwater originating at the site. The company will also cooperate with the U.S. Navy on a remedial design and remedial action work plan the Navy submitted to DEC to remediate contaminant "hot spots" recently identified in a large groundwater plume.

Chinese Laminates Anyone?

Lumber Liquidators Inc. will suspend its sales of laminate flooring from China. Prosecutors and consumers have alleged these contain toxic levels of the building chemical formaldehyde. It will also review suppliers who had labeled the product as meeting California's limits for the carcinogenic chemical. The company has over 20 stores in NY.

Beech-Nut, Asbestos and Worse

Here is another cautionary tale on how NOT to address the demolition and reuse of a contaminated former manufacturing facility. Asbestos abatement woes will likely haunt this Canojaharie site for years to come. In a stunning lack of vision, Beechnut received "tens of millions" in government incentives to relocate their factory in 2010, but not a penny for environmental investigation or cleanup. They later sold the property to the current owner.

Another Rhino Attacked!

Sadly, savage ivory poachers continue to find and attack the dwindling numbers of African Rhinos.

E. Cig. Ban Law Proposed

A growing number of NYS legislators support legislation to ban electronic cigarettes ("E-Cigarettes") from public places. Several NY municipalities have already enacted local bans.

Border Bug Quarantine in Place

The U.S. Department of Agriculture ("USDA") has declared the NY-Vermont border as the edge of a quarantine zone to prevent the movement of an insect known as the Emerald Ash Borer into Vermont. This invasive species from Asia can seriously damage hard wood trees such as the ash.

Beware! Nematodes Threaten Your French Fries

I bet you did not know that NY is the home of the Federal Nematode Quarantine Facility on Cornell's Ithaca campus, a facility that tests for nematodes (tiny roundworms) that attack potato roots.

Energy Enforcement

Port Crude Heater on Hold

DEC has determined that it will reverse its previous decision to rescind the Negative Declaration issued in connection with the pending Title V Permit Modification Application at the Port of Albany facility. The Permit Modification Application has not been denied but the DEC has requested additional information in connection with the submission.

DEC Crude Oil Spill Response Plan

NY announced a new emergency plan and other measures to address crude oil train spills and accidents. Critics of crude oil trains are pleased.

New Oil Train Rules Still Too Lax

Crude oil train critics were unhappy about the new rules unveiled by federal authorities. Now, the public interest group Riverkeeper is challenging new U.S. Department of Transportation (USDOT) crude-by-rail standards in federal court for the failure to protect the public and the environment from crude oil trains.

Critics Spout-off over Port Oil Spill

A contained oil spill of approximately 420 gallons at the Port of Albany provoked a severe reaction from opponents of crude oil trains despite there being little or no environmental damage.

Oil Train Safety and Congress for Congress to take direct action in regulating crude oil trains. Such regulations include raising the standards for oil train insurance.

Fire, Oil Spill at Indian Point Nuke Plant

Non-nuclear environmental incidents have given plant foes additional ammunition in their fight to close the Westchester, NY power plant. This includes NY Governor Cuomo who visited the plant to inspect the situation.

Entergy Michigan Violations

Entergy, which operates the Indian Point nuclear plant in Westchester, incurred radiation exposure monitoring violations at its Michigan nuke facility.

People in the News

New Director for Sierra Club

Capital Region environmentalist Aaron Mair is the new president of the national board of directors of the Sierra Club.

State & Local Enforcement

Walmart Settles Fertilizer Violations with AG

The settlement agreement requires Walmart to comply fully with the state's Nutrient Runoff Law and pay $98,000 in penalties to New York State for the alleged violations. The company will also halt sales of phosphorus-containing fertilizers intended for use on lawn or non-agricultural turf in NY stores and via the internet.

DEC Steps Up Aquatic Invasive Species Enforcement

The DEC Environmental Conservation Police conducted recreational boat inspections in the Adirondacks to raise awareness of new 2014 state regulations to prevent the spread of aquatic invasive species. Boaters now must remove all visible plant and animal materials from boats and trailers. They also must drain boats before and after using waterways bordering state lands supervised by DEC.

Federal Enforcement

Westchester Co. Slammed for $1.1 Million for Drinking Water Violations

Westchester County entered into a consent decree with the United States and EPA Region II, to resolve a civil lawsuit alleging that the County had improperly operated a unit of its water treatment system in violation of the Safe Drinking Water Act (SDWA). Specifically, the system failed to remove cryptosporidium, a parasite that can cause severe gastrointestinal illness. The value of the settlement includes substantial upgrades to the water treatment system.

Asbestos Monitor Pleads Guilty (NDNY)

A company pleaded guilty to a one misdemeanor count under the Clean Air Act (CAA) for negligently releasing asbestos (a hazardous air pollutant or HAP) and placing persons in imminent danger of death or serious bodily injury. The company had conducted air monitoring and sampling for asbestos abatement and removal projects.

RCRA Conviction in Owego (NDNY)

An Owego, New York resident pleaded guilty to one felony count of treating, storing, and disposing of hazardous waste without a permit, in violation of the Resource Conservation and Recovery Act (RCRA). Defendant operates a company that installs and removes old industrial plating equipment for re-use or recycling.

Tonawanda Coke Update (WDNY)

Under a $12 million settlement with the United States and the State of New York, Tonawanda Coke Corporation will pay $2.75 million in civil penalties, spend approximately $7.9 million to reduce air pollution and enhance air and water quality, and spend an additional $1.3 million for environmental projects in the area of Tonawanda, New York. Tonawanda Coke will pay another $1 million to fund supplemental environmental projects (SEPS) that will benefit the environment and the residents of Tonawanda. Additionally, $357,000 will be provided to a not for profit organization, to acquire and preserve wetlands.

Puerto Rico Contractor Settles Stormwater Violations

EPA Region II and a contractor entered an agreement that requires it to pay a $500,000 penalty, establish new staffing positions as well as training programs to ensure future stormwater runoff compliance with the Clean Water Act (CWA).


NYS Pushes Protections for Nail Salon Workers

Governor Cuomo and the NYSDOL proposed aggressive proactive labor legislation to control the state's growing nail salon industry. In addition to wage and workplace abuses, the state also alleges that workers are subject to toxic exposure due to the lack of ventilation or protective gear. Many in the industry are recent immigrants that have been historically exploited.

Region 4 Administrative Orders

In the Matter of Mike Kerwin
Order on Consent
DEC File No. R4-2014-1119-170

Respondent was assessed a civil penalty of $8,000, with $5,000, suspended for mining bluestone without a permit in the Town of Unadilla in Otsego County in violation of ECL 23-2711(1). Note: that law does allow limited exceptions for mining.

In the Matter of Seton Health System
Order on Consent
DEC File No. R4-2014-0917-152

Respondent - a Troy, NY hospital - was assessed a civil penalty of $20,000, with $3,000, suspended for over twenty violations of hazardous waste handling, storage, labelling and record keeping requirements pursuant to various regulations found in 6 NYCRR Parts 372 and 373. The violations were discovered upon a facility inspection and suggest that the hospital's staff was not familiar with federal RCRA or state hazardous waste standards. DEC enforcement against hospitals for this category of regulations is relatively rare.

In the Matter of Samaritan Hospital of Troy
Order on Consent
DEC File No. R4-2014-0918-154

Respondent, another Troy, NY hospital was assessed a civil penalty of $18,100, with $15,385, payable for over numerous violations of hazardous waste handling, storage, labeling and record keeping requirements pursuant to various regulations found in 6 NYCRR Parts 372 and 374. Many of the violations were related to the accumulation of waste light bulbs. DEC enforcement against hospitals for this category of regulations is relatively rare.

In the Matter of Bailiwick Animal Park
Order on Consent
DEC File No. R4-2015-0127-5

In a most unusual case, the Respondent, a Catskill, NY zoo operator, was found to be in violation of the state fish and wildlife law based on internet Facebook postings made by the zoo for promotional purposes. Specifically, Respondent was penalized for $4,000, with $2,000, suspended for depicting via Facebook unlicensed animals at the zoo and endangered or dangerous animals in contact with the public. This conduct resulted in multiple violations of license conditions and various provisions of ECL 11-0512.

DEC Administrative Enforcement Orders, Decisions and Rulings

In the Matter of Empire Construction and Real Estate LLC and Charles Celi
ALJ Ruling, May 27, 2015

Here, the DEC staff's Motion for a Default Judgment was denied due to jurisdictional defects in the service of the original Notice of Hearing and complaint. In a lengthy review of the relevant precedents, the ALJ notes staff's error in attempting service by first class mail pursuant to CPLR 312-a, on Respondent's attorney rather Respondent. Subsequently, the correct service of the Motion for Default Judgment did not cure the underlying jurisdictional defect.

Weird News

The Fight for Ape Rights Continues!

A NY Court incrementally advanced the legal rights of great apes to fight their "detention" by a NY state university. Previous Update posts have followed the international legal fight to establish human civil rights for captive great apes (chimps, gorillas, etc.).

Cal. Water Theft Rampant!

As the extraordinary and dangerous California drought persists, water theft has risen accordingly.

Ignitable Ice?

Flammable methane hydrate ice crystals - frozen natural gas - may be found in deep Artic waters and could be the next major source of fuel.

Wooly Mammoth Tusks, a Real Pain!

Newly unearthed (but somehow legal) prehistoric mammoth tusks have entered the Asian ivory market due to thawing Siberian tundra. But, there is virtually no discernable difference between the ivory from mammoths and that of endangered elephants. Thus illegal ivory traders can now mislabel ivory products to bamboozle world law enforcement agencies.

Alaskans Driven Bed-Buggy

EPA has established a 100k grant to fight bed bugs in Alaskan villages. The effort will focus on "breaking down barriers to effective bed bug management." What else?

The Poop Fairy of Aspen?

In an effort to admonish and educate the dog walkers on Aspen's Smuggler Mountain, authorities have advised that the "Poop Fairy" will not magically appear to remove their pet's business. Posted signs depicting said Poop Fairy attest to this awareness campaign.


The NY Environmental Section Enforcement Update is a service presented by the Environmental Section of NYSBA which is based on a general survey of approximately twenty-five public government and media websites which report on news relevant to New York's environmental issues. It is by no means comprehensive and is presented for educational purposes only. Neither the author nor NYSBA makes any guarantees as to the accuracy of the sources cited. Please contact Sam Capasso, the Blog Administrator with any additional information or corrections.

Michael J. Lesser is currently Of Counsel to Sive, Paget & Riesel, P.C. in New York and was a former NYSDEC enforcement attorney in the Office of General Counsel.

June 28, 2015

NY Environmental Enforcement Update April 2015, Vol. 2,#4

By Michael J. Lesser, Environmental Law Section, NYSBA © 2015

Enforcement News

Finally, a New State Brownfields Law

After several years of false starts, state leaders finally agreed and allowed the passage of an updated Brownfields and related superfund laws. Changes include new deadlines for project completion, tax credit eligibility and funding for the state superfund. The new laws also instituted a new two-tier site eligibility program to distinguish NYC from the rest of the state. DEC still must issue several regulatory definitions to implement the law.

Lumber Liquidators Faces DOJ Criminal Charges

Lumber Liquidators Inc. reported that the USDOJ will seek criminal charges for violations of the Lacey Act due to imported wood flooring products from China. The company also reported the likelihood of several class actions for allegedly toxic products imported from China. The company has 19 locations in NY.

Schenectady Casino to be built on Brownfields

The State has chosen a historically contaminated brownfield to be the location of a new casino and extensive associated development. While the environmental issues were downplayed in the site selection process, the developer must address some intricate environmental and engineering issues including soil vapor protection and waterfront dredging as part of the state's Brownfield Cleanup Program.

Walgreens Refuses Cleanup of Ex-Dry Cleaner Site

Here is another cautionary tale about the purchaser of a former dry cleaner that risked state cleanup liability for a good retail location - and may lose in the outcome.

EPA and GE Joust over Added Canal PCB Cleanup

Locals urge that General Electric not be allowed to disassemble its PCB processing plant while PCBs still remain in the Champlain Canal, an off-shoot of the Hudson River. However, the canal was not part of the original Hudson River cleanup agreement between EPA and GE which is reluctant to re-open the matter (to say the least).

Odor Woes - Tis the Season

Warmer weather usually raises the exasperating subject of odor control and enforcement. On the state level, 6 NYCRR Part 211, may be of interest regarding state enforcement, in addition to any local code restrictions.

Reform NY Toxics Law Now!

Some New York legislators have joined a nationwide movement to reform state and federal toxics laws regarding testing and product content disclosure. These basic laws - such as TSCA - have remained little changed regarding the investigation of toxics since the 1970's.

NY AG Warns about Lead Poisoning

The NYS Attorney General has gathered resources related to the prevention and detection of lead poisoning.

NY AG Warns about Water Pollution via Microbeads

As previously reported in the Update, the NY Attorney General has taken notice of the water pollution threat created by the release of microbeads into the environment through the use of numerous personal consumer products that use these tiny plastic bits.

APA Contemplates Invasive Species Prevention

The Adirondack Park Agency has joined the state's efforts to prevent the expansion of destructive invasive species into the region.

DEC Issues Proposed Amended Water Quality Rules

DEC issued a hearing report regarding amendments to 6 NYCRR Parts 701 and 703, to conform those standards to new federal water quality regulations.

DEC Staff Loses Camera Privacy Suit

In a follow up to a previous post, a court held that DEC staff may be spied upon by security cameras for purposes of enforcing break times.

Energy Enforcement

Albany Co. Bans Fracking Wastes

Despite the state's ban on natural gas fracking, Albany County banned liquid hydraulic fracturing or "fracking" wastes from its water treatment system as a "warning" to out of state gas drillers that might even think about it.

Albany Omitted from Oil Train Speed Limits

For bureaucratic reasons, USDOT has left Albany off the list of places subject to limits on oil train speeds.

Are Crude Oil Shipments Decreasing?

Nationwide, crude oil shipments appear to be decreasing.

Crude Oil train Fees Go Up

Despite federal regulatory pre-emption, NY can and has raised the fees charged for crude oil transported through the state.

Oil on the Hudson!

While crude oil trains have been the focus of regulatory scrutiny, oil transport on the Hudson River remains of great concern due to the risk of spills.

The Two Sides of NED

The proposed Northeast Energy Direct (NED) natural gas pipeline illustrates the arguments both pro and con regarding natural gas pipelines.

Nuke Bailout Contemplated

State officials are weighing whether rate payers should bailout a failing Rochester nuclear power plant.

People in the News

New Attorney for EDNY

Kelly T. Currie has been appointed Acting US Attorney for the Eastern District of NY. His biography does not suggest extensive environmental experience.

State & Local Enforcement

NY Attorney General's Office Enforcement Summary

In honor of Earth Day, NY Attorney General Schneiderman has listed the numerous recent environmental accomplishments of his office's Environmental Protection Bureau (EPB).

Federal Enforcement

Guilty Pleas in Biodiesel Fraud Scheme

Defendant and two related New Jersey companies pleaded guilty in a scheme to defraud biodiesel buyers and U.S. taxpayers by fraudulently selling biodiesel incentives.

Failure to File Asbestos Notice

The EPA continues to investigate the demolition of the closed Beech-Nut plant in Canajoharie, NY for the failure to file proper notice of an asbestos abatement in violation of the CAA. This issue is illustrative of the many obstacles facing businesses that hope to revive historical industrial sites in the state.

Boat Sewage Ban Proposed for Finger Lakes

At the request of DEC, the EPA has proposed a ban on boat sewage dumping in Lakes Seneca and Cayuga.

Improper Pesticide Use in the Virgin Islands and Puerto Rico Alleged

EPA continues to investigate the improper application of the dangerously toxic pesticide methyl bromide in various locations in these otherwise tropical paradises.

OSHA & NYSDOL Enforcement

NYSDOL Eliminates 57 Fees

The NYS Department of Labor ended the collection of 57 mostly strange and obscure business fees (many environmental in nature) as part of the 2015-16 state budget. New Yorkers will save approximately $3 million annually. My favorite cancelled fees: The annual Antique Boiler and Steam Engine Inspection fee; The Podiatry Arbitration Request Fee; and the ever popular Laser Regulation Permit Fee.

DEC Region 4 Administrative Orders

In the Matter of Seward Sand & Gravel
Order on Consent
DEC File No. R4-2013-0916-115

Respondent was assessed a civil penalty of $4,750, with $3,000, suspended for violating a special condition of its mining permit by disposing unauthorized flood debris in the mine in violation of ECL Article 23, Title 27.

In the Matter of Sonny & Sons Stone Co.
Order on Consent
DEC File No. R4-2014-1024-159

Respondent was assessed a civil penalty of $10,000, with $8,000, for the failure to properly and timely complete a bluestone mine reclamation plan in violation of ECL Section 23-2711-12-a, due to the off-site disposal of waste rock.

In the Matter of The Home Depot
Order of Consent
DEC File No. R4-2015-0306-25

Respondent, a national chain retailer, violated 6 NYCRR § 659.1, which prohibits the selling of household cleaning products containing more than 0.1% of the contents by the weight of the element phosphorous." Note: this matter concerns a rarely enforced water pollution control regulation which is subject to a special enforcement provision at ECL 71-3103, which caps a first violation at $2,500.00 (the assessed civil penalty in this case).

In the Matter of R.J. Valente Gravel
Order of Consent
DEC File No. R4-2014-0124-11

Respondent, mining concern, was assessed a civil penalty of $14,000.00, with $4,000.00 suspended for numerous violations of the state's mining and reclamation and water pollution laws. Mining violations of the Respondent's permit conditions included: the negligent handling and disposal of mining and solid wastes; violating the mine's land-use plan, 6 NYCRR Part 422.1; failure to comply with a previous consent order; and unpermitted discharges to state waterways as per ECL 17-0511.

In the Matter of Midstate Pest Control
Order on Consent
DEC File No. R4-2015-0130-7

Respondent, a pesticide applicator, violated 6 NYCRR 325.2 by failing to adhere to label directions for the pesticides applied; and to provide the property owner with copies of the product labels of the products applied in violation of ECL §33-0905(a). A civil penalty of $6,000.00, was assessed. The violations stemmed from a bed bug outbreak in a local motel.

In the Matter of SIMONIZ USA
Order on Consent
DEC File No. R4-2015-0130-6

Respondent, a nationally known manufacturer of car care and janitorial products, was found to be in violation of ECL 33-1301(1)(a), for the distribution and offer for sale of Simoniz Foam Disinfectant, which is an unregistered pesticide in New York. An investigation revealed that almost 900 containers of the product were shipped into NYS in the Fall of 2014.

DEC Administrative Enforcement Orders, Decisions and Rulings

In the Matter of Franco, Edivane and Franco, Ubirajara
DEC Case No. R1-20070830-252
ALJ Ruling, April 20, 2015

An extreme example of administrative delay is illustrated in this case which has its roots in a Riverhead Respondent's attempt to build a swimming pool and related improvements on or near a regulated freshwater wetland in 2003. A number of consent orders, permits and enforcement proceedings ensued over the years. The latest presiding ALJ has finally ruled for a partial summary order for DEC staff for violations of 6 NYCRR Part 663 and ECL 24-0701. Rulings on penalties and mitigation were denied due to issues of fact and the matter continues. My educated guess is that the lack of DEC staff and/or staff turnover played a significant role as this saga enters its thirteenth year.

In the Matter of 444-451 Orange Buildings Housing Development Fund Corporation
DEC Case No. PBS 2-601054NYW
Order, March 10, 2015

The Commissioner ordered a default judgement pursuant to 6 NYCRR 622.15, and awarded a judgment of $10,000.00, against Respondent for violations of ECL 17-1009 and 6 NYCRR 612.2(b) for failing to re-register its NYC petroleum storage facility within 30 days of the transfer of ownership of the facility to it in 2004.

In the Matter of Adonai Realty L.P.
Commissioners Order, March 10, 2015
DEC Case No. PBS 2-601115NYW

Respondent violated ECL 17-1009 and 6 NYCRR 612.2(b) by failing to re-register its petroleum storage facility, located in the Bronx, within 30 days of the transfer of ownership of the facility to the Respondent within the 2004 calendar year. The Commissioner granted the DEC staff motion for a default judgment pursuant to 6 NYCRR Part 622.15, and assessed a $10,000, administrative penalty according to the department's PBS enforcement guidance.

In the Matter of Exeter 13172 De, LLC
Commissioner's Order, March 10, 2015
DEC Case No. PBS 2-607789NAL

Respondent violated ECL 17-1009 and 6 NYCRR 612.2(b) by failing to re-register its petroleum storage facility located in the, Bronx, within 30 days of the transfer of ownership of the facility to it. The Commissioner granted the DEC staff motion for a default judgment pursuant to 6 NYCRR Part 622.15 and assessed a $5,000.00, administrative penalty according to the department's PBS enforcement guidance.

In the Matter of Hill, Lance
Commissioner's Order, March 10, 2015
DEC File No. R4-2012-1129-111

The Commissioner granted a Motion for a Default Judgement and assessed a $10,750.00, penalty for Respondent's five PBS violations including:

  • 6 NYCRR 612.2(a)(2), failing to timely renew the PBS facility's expired registration;

  • 6 NYCRR 612.2(d), failing to notify Department staff of a substantial modification to the PBS facility, specifically the removal of two above-ground storage tanks;

  • 6 NYCRR 613.9(b), failing to properly permanently close three above-ground storage tanks;

  • 6 NYCRR 613.6(c), failing to maintain monthly inspection reports for the facility's above-ground storage tanks for at least ten years; and

  • 6 NYCRR 613.3(c)(3), failing to install overfill prevention systems on four above-ground storage tanks.

In the Matter of Edkins Scrap Metal Corp., et al
ALJ Ruling, March 10, 2015

Department staff's motion for an order without hearing was partially granted on the issue of liability for the following violations stemming from the unlawful placement of fill in a regulated tidal wetland including:

  • ECL 25-0401 and 6 NYCRR 661.8 and 661.5(b)(30) for placing fill in a regulated tidal wetland and tidal wetland adjacent area without a permit;

  • ECL 15-0505 and 6 NYCRR 608.5 for placing fill in the navigable waters of the State without a permit; and,

  • 6 NYCRR 661.5(b) (48) for operating a commercial non-water-dependent business in a tidal wetland and tidal wetland adjacent area without a permit.

Weird News

Alleged X-Ray Terrorism Case Proceeds

Follow this: As previously reported, an alleged KKK member attempted to supply an X-ray weapon of mass destruction to perpetrate all kinds of racist mayhem. Previous sources referred to the weapon as a "ray-gun." It is laughable until you realize that one defendant has already pleaded guilty in this NDNY case.

More Cashing in on Bigfoot

Another upstate NY community is attempting to monetize its purported relationship with the big guy. Recall an earlier post about the Annual Bigfoot Symposium in Chataugua.

Buffaloes Attempt to Evade Thruway Tolls

An escaped buffalo (American Bison) herd swam across the Hudson River and was tragically executed by hunters just short of rushing into traffic on the NYS Thruway. You read that right!

The Last Rhino Standing

In the saddest post of the month, armed guards have been deployed to protect the last known male member of an African Rhino sub-species from relentless ivory poachers.

Beware Bold Coyotes

Recent Update posts have dealt with the urban invasion of these secretive predators. Now, DEC has issued public guidance on how to address wayward coyotes including those exhibiting "bold" behaviors (like the individual recently photographed on a Queen's NY roof top).

EPA Administrator Appears with X-Rated Hip Hop Acts

EPA Administrator Gina McCarthy appealed to young people at the "environmental justice" Broccoli festival to raise awareness about climate change. A classical music concert it wasn't.

Moose stabbing - Huh?

Three Alaskans were arrested for assaulting and stabbing a moose! Their motives were unknown but Alaskan winters are very long.

Haunted Landfill on Staten Island?

In another sad legacy of the 911 attacks, a new book alleges that the Fresh Kills Landfill is haunted. Recall that the closed landfill was reopened to receive excavated rubble from Ground Zero.

Breaking Bad at Walmart!

A dismantled methamphetamine lab was discovered in a backpack in an Indiana Walmart restroom apparently used to manufacture the stuff. Aside from the environmental and public health issues, can the end of civilization be far off?


The NY Environmental Section Enforcement Update is a service presented by the Environmental Section of NYSBA which is based on a general survey of approximately twenty-five public government and media websites which report on news relevant to New York's environmental issues. It is by no means comprehensive and is presented for educational purposes only. Neither the author nor NYSBA makes any guarantees as to the accuracy of the sources cited. Please contact Sam Capasso, the Blog Administrator with any additional information or corrections.

Michael J. Lesser is currently Of Counsel to Sive, Paget & Riesel, P.C. in New York and was a former NYSDEC enforcement attorney in the Office of General Counsel.

June 21, 2015

NY Environmental Enforcement Update March 2015, Vol. II, #3

By Michael J. Lesser, Environmental Law Section, NYSBA © 2015

Enforcement News

Dirty Fuel Oil Scam in NYC

Prosecutors are investigating the city's largest fuel oil companies for allegedly taking worthless, but hazardous, waste oil and "blending" it with fuel oil before delivering the diluted and adulterated product to customers. Victims were allegedly defrauded of millions of dollars for purchasing the bad oil.

Note: Historically, these crimes have occurred when low oil prices also diminish the used oil recycling market.

Nanotech Chemical Reporting Proposed

The EPA proposed a one-time reporting and record keeping requirement on nanoscale chemical substances to assist in its continued evaluation of the materials used in the growing NY "nanotech" industry. Can further regulatory oversight be far behind?

Radioactive Wastes on the Move

Knoll Atomic Power Lab, a cold war era nuclear research facility, is seeking the permission of local governments to transport radioactive wastes by rail for disposal, including the Town and Village of Corinth. The Department of Energy (DOE) run facility has been fined in the past for radiation releases. Shipments from the facility could start this spring and continue through mid-2017.

Storm Water Pond Pollution! Who is Responsible?

A lawsuit has been filed by residents of Greenbush living downstream of a municipal retention pond against the town. This item is indicative of the state's growing issue about the responsibility (and liability) for maintaining long standing storm water retention ponds, recharge basins and related infrastructure. These fixtures of suburban development are often neglected and become contaminated waterways or other nuisances.

53 NY Agencies Sign Invasive Species Agreement

Governor Cuomo announced an agreement among 53 New York State agencies, municipal governments and other stakeholders to prevent the introduction and spread of aquatic invasive species in the Adirondack region.

NY Court Says Exxon Must Pay Tax on Spill Enviro-Monitoring

The NY Appellate Division ruled that Exxon Mobil Corp. must pay a $500,000 New York sales tax assessment on environmental monitoring and testing at several past oil-spill locations, rejecting arguments that those activities were not technically part of the cleanup efforts thereby making these costs tax-exempt.

Energy Enforcement

US Senators Demand Safe Oil Trains Now!

Seven U.S. senators,including NY Senators Gillibrand and Schumer, asked the federal Office of Management and Budget to quickly finalize new comprehensive standards for crude oil rail tanker cars.

In related news, senators have also introduced legislation that would tighten regulation over crude oil trains including an immediate ban on older - and more prone to puncture - oil tank cars involved in several recent rail accidents and explosions.

NY Rail Inspections Continue

NYS continues to vigorously exercise its limited authority to inspect and report crude oil train violations.

Can NY Ban Oil Trains?

An attorney for groups that support a ban on crude oil trains using the ECL Summary Abatement (ECL 71-0301) process sets forth the legal basis for his claim.

Constitution Pipeline Woes

Over 600 land owners have refused to sign Right of Way Agreements to allow passage of the proposed Constitution Pipeline for natural gas. The refusals have led to condemnation proceeding under the Natural Gas Act.

In related news, the pipeline generated over 5,000 comments (most against the pipeline).

People in the News

USDOJ's Cruden to Focus on Bringing Bad Actors

The new USDOJ ENRD Director John Cruden will have a full agenda as he assumes supervision of the 400 attorneys of the Environment and Natural Resources Division (ENRD) and the 6,000 open environmental cases or investigations now before the USDOJ.

State and Local Enforcement

Alleged Roberto Clemente Park Dumper Hit with Tax Charges

A Suffolk County man previously indicted for illegally dumping asbestos contaminated fill at a Brentwood soccer field in Central Islip was arrested today on charges of not filing state income tax returns and filing a false income tax return and failing to pay personal income state taxes.

Staten Island Mystery Poacher Apprehended

In a rare occurrence of urban poaching, an alleged deer poacher set up shop in a borough of NYC.

Federal Enforcement

Wood Pallett Recycling Co. Criminally Fined $100,000

Defendants pleaded guilty and were sentenced in Eastern District U.S. District Court to the falsification of certificate stamps in violation of the Plant Protection Act. The company will pay a fine of $100,000, and the individual defendant will pay $1,000 and serve three years of probation. The U.S Department of Agriculture (USDA) requires the heat treatment of wood pallets used in international commerce to prevent the spread of parasites.

UST Violator to Spend $1.6 Million on Compliance at 125 Gas Stations

A settlement resolved alleged Resource Conservation Recovery Act (RCRA) violations at 31 gas stations in Puerto Rico and four gas stations in the U.S. Virgin Islands that use underground storage tanks (USTs). The violator agreed to pay a $426,000 civil penalty, implement compliance measures valued at approximately $1 million and undertake a supplemental environmental project (SEP) consisting of a centralized monitoring system estimated to cost approximately $600,000. A SEP is the rough equivalent of a NYS EPB.

DEC Region 4 Administrative Orders

We periodically remind readers that the DEC Region 4 office is the only regional office (of nine) that routinely posts administrative enforcement consent orders for entered for violations of the environmental conservation law (ECL). While the bases of these settlements are not binding on other DEC enforcement units, these do provide a valuable window into the department's overall enforcement and penalty policies.

In the Matter of Fred Edwards
Order on Consent, No. R4-2013-0912-l 14
March 9, 2015

A property owner in Palenville, was assessed a civil penalty of $2,000, with $9,000, suspended for the placement of unauthorized fill in classified freshwater wetland without a permit in violation of 6 NYCRR 663.4(d)(20).

In the Matter of the Gallivan Corporation
Order on Consent, No. R4-201 4-0812-134
March 9, 2015

A commercial pesticide applicator was assessed a civil penalty of $1,000, for the failure to post a visual notice marker on a Schenectady property subject to treatment in violation of 6 NYCRR 325.40(h)(2).

In the Matter of Hillside Commons Oneonta
Order of Consent No. R4-2014-0623-125
March 4, 2015

Respondent was assessed a payable civil penalty of $11,000, with an additional $10,000 suspended for several violations of its storm water pollution prevention plan (SWPPP), which was part of its SPDES water pollution permit. Respondent operated a construction site adjacent to waterways that lead to the Susquehanna River.

DEC Administrative Enforcement Orders, Decisions and Rulings

In the Matter of Furs By GiGi, Ltd.,
DEC Case No. PBS 2-607525AL
Commissioner's Order, March 4, 2015

The Commissioner granted DEC staff's motion for a default judgment pursuant to 6 NYCRR 622.15, for failing to answer or appear in this proceeding and was then held to have violated ECL 17-1009 and 6 NYCRR 612.2 for failing to renew the petroleum bulk storage registration for a petroleum storage facility in Flushing, New York. Respondent was assessed a civil penalty of $7,500. Staff had also moved to unilaterally reduce the original recommended penalty of $10,000, to conform to penalty guidelines.

In the Matter of Gilray, Thomas A.
DEC Case No. 2520-2013DK
Commissioner's Order, March 4, 2015

The Commissioner granted staff's motion for a default judgment pursuant to 6 NYCRR 622.15, for failing to answer or appear and assessed a civil penalty $1,500, for the failure to timely file a complete and accurate annual well report for certain wells in violation of 6 NYCRR 551.2(b) for failure to timely file a complete and accurate annual well report for oil or gas wells in Allegany County.

In the Matter of Accardi, Salvatore
DEC File No. R2-20120807-484
ALJ Ruling, March 2, 2015

This Ruling demonstrates the exacting factual standards necessary for the DEC staff to sustain a motion for an order without hearing. Here, the motion was denied. DEC had alleged liability for numerous tidal wetland violations based on recreational construction on property adjacent or near a part of Jamaica Bay. However, the department's affidavits were not clear as to the precise identification of the waterways and wetlands areas impacted. The matter will be rescheduled for a formal administrative hearing.

Weird News

China Cracks Down on Pollution

In the past, these posts have taken China to task for its severe pollution issues. However, Chinese President Xi Jinping recently called for an "iron fist" crack down on polluters. New policies include the Environmental Protection Law and the Clean Air Action Plan. Readers may recall that, theoretically, China also allows the death penalty for environmental crimes.

Coyotes Now Invade the Bronx

These elusive, yet ubiquitous, creatures continue to adapt to urban living.

A Litter Box upon Your House!

A disgruntled upstate NY politician apparently has been getting even with his adversaries by allegedly (and unlawfully) dumping his cat's litterbox contents onto their lawns. He was undone by covert police surveillance of the situation. Really folks, I do not make this stuff up.

Paris Air Pollution Rivals China's

Surprisingly, Paris, France is challenging China for having the most polluted air.

Geo-Magnetic Storm Hits Earth!

We earthlings sometimes forget that our environment can include extreme extraterrestrial forces.

Will There Be a Shower Police?

To combat water waste, EPA has authorized a university a grant to develop a device to monitor water usage by motel guests. Prepare for more stories like this due to the severe California drought.

Manatee News

In an odd conflict of environmental goals, proponents of a coal burning power plant argue that the plant should remain open as endangered manatees benefit from the warm water outflow from the plant.

Meanwhile, an environmental group has indicated that it will sue the federal government to ban the issuance of permits that allow swimming with manatees. The condition of these gentle creatures is often used as a bell weather of Florida's environmental quality.

Elephants Gone from the Big Top

Ringling Brothers and Barnum & Bailey Circus will drop elephants from circus performances ending over a century of circus tradition. The remaining elephants will be retired to an elephant preserve in central Florida.

April 19, 2015

Message from the Incoming Environmental Law Section Chair, Michael J. Lesser

I have been afforded the honor and privilege of becoming the latest Chair of the Environmental Law Section of the New York State Bar Association. I wish to begin by thanking the outgoing Chair, Terresa Bakner, for her patience and leadership in guiding our section. Specifically, Terresa has undertaken the less than glamorous tasks of restructuring our committee system, undertaking financial reform, improving diversity and reviving our membership efforts with great success. These goals will continue to be my objectives in the 2015-2016 term. In addition, improving section communications will be added to the list of imperitives.

In regards to these issues, I also wish to recognize and thank Carl Howard and Kevin Reilly, the past Chairs I have worked with in the section cabinet. All the recent section cabinets have recognized the need to aggressively address these important issues.

The incoming 2015-2016 officers also are committed to continue the pursuit of these goals. The new section officers will include: Larry Schnapf, Vice Chair; Kevin Bernstein, Treasurer; and, Marla Wieder, Secretary. Linda Shaw will be our delegate to the NYSBA House of Delegates. Past Chair Gail Port has also agreed to assist me as the Section Counsel. In addition, past section chair Phil Dixon will continue to be our liaison to our valued sponsors. Finally, our Diversity Committee co-chairs John Greenthal and Joan Leary Matthews will continue to assist the executive board with the improvement of our programs and membership efforts.

We are also fortunate to have hard working members who contribute to our various media outlets including: the Editor-in-Chief of the Environmental Lawyer, Miriam Villani; Sam Capasso as the Editor of "Envirosphere" our section blog; and, Larry Schnapf in the new role of the section's LinkedIn and social media manager. I will also continue to act as the chief cook and bottle washer for the monthly "NY Environmental Enforcement Update" which is also edited by Sam Capasso and posted monthly on our blog.

Finally, I wish to warmly thank Lisa Bataille, Kathy Plog, Lori Nicoll, Vincent Titus and many others at NYSBA for past and future assistance with the operation of the section. Their participation and wisdom has been and continues to be simply indispensable.

Upcoming Section Events

To improve the quality of our services to section members, the cabinet and executive committee has determined that more frequent and varied programing is necessary. These themes will also enhance our membership and diversity efforts. In this regard, I have tasked incoming Vice Chair Larry Schnapf to improve our visibility in social media and other electronic and conference media such as webinars. This is not as easy as it sounds given the financial and administrative constraints of the bar association framework. But Larry remains resolute and he has already jump started our outreach and communication with members.

As an example, on April 1, 2015, more than seventy-five section members participated in a conference call arranged by the Brownfields Task Force regarding the new revised Brownfields Cleanup Program (BCP) statute. As of this writing (early April) the following statewide section events are or were scheduled for the remainder of 2015:

  • April 1 - BCP Update Webinar
  • April 14 - Annual Oil Spill Symposium
  • April 16 - Coastal Resiliency Summit at Tour Law School (Co-Sponsor)
  • May 6 - Legislative Forum: NY Water Legislation (Albany)
  • May 14 - NYSBA Section Leadership Conference (NYC)
  • May 20 - CLE, Survey, N.Y. Regulatory Enforcement Update (NYC)
  • June 24 - Section Executive Committee Planning Retreat (Poughkeepsie)
  • October 2 to 4 - CLE, Environmental Section Fall Meeting (Saratoga)
  • Buffalo Area Fall Law School Mixer (Date TBA)
  • January 25-30, 2016 - NYSBA Annual Meeting
  • January 29, 2016 - Environmental Law Section Annual Meeting

Please note that all future dates and locations are subject to change.

Section Resources (old and new)

As part of our section's themes of membership retention and new membership, this is a good place for members to inventory and take advantage of some of the tangible benefits of section membership. Let us start with the section's website function as a portal to further useful practice information. The Environmental Law Section homepage or website can be reached directly on the internet at: or indirectly via the NYSBA homepage at: All of the following resources can be linked to via the section homepage.

The NY Environmental Lawyer (Online)

One of the section's underutilized secret treasures is the online availability of past issues of the section journal back to 2000. This resource can also be linked via the section's homepage. A word searchable index of the past issues is a key research feature of this resource. Note: direct access to the past issues is a member only benefit and requires a user ID and password (both available via prompts from NYSBA).

Legal Links

The section homepage can also be used to link and access a broad library of legal research and practice information (no password required).

Envirosphere - The ELS Blog

Blog Editor and fellow section member Sam Capasso has helmed our award winning blog since 2013. Among the innovations is the monthly NY Environmental Enforcement Update, a unique stand-alone multiple item blog post that is now in its third year. The blog can be accessed via the website or directly at: All blog items are key word searchable for research purposes. Please contact Sam Capasso if you have any questions or suggested posts at: (no password required).

NY Environmental Enforcement Update 2013 Annual Report

The NY Environmental Enforcement 2013 Annual Report, is an outgrowth of the blog's Environmental Enforcement Update and is the first e-book approved and posted by the section. It is a free seventy-seven page download which can be reached from a link on the section homepage. It is also searchable via key word and by subject TAGS (no password required).

LinkedIn (Social Media)

Finally, we are proud to announce that in cooperation with NYSBA, the section has invaded social media via the internet based LinkedIn professional service. Despite the recent startup, over 100 section members have already availed themselves of this professional social media and communication service. A higher social media profile for the section will enhance our existing communications via section blast email and the old listserv technology. The section's LinkedIn site is open to section members only and can be accessed by contacting either Vice Chair Larry Schnapf at or NYSBA section liaison Lisa Bataille at It is also a good time to update or add your email address to the section's records by also contacting Lisa at NYSBA. Visit for a full list of the New York State Bar Association's social media sites.

I hope this update gives you a glimpse into the dedication of your section officers and extended executive committee in bringing section members new and expanded services and programs. All of these activities will support our section goals of diversity, membership and financial reform. If you have any questions, suggestions or a notion to volunteer to help the section please do not hesitate to contact me at: or (518) 452-5598. I look forward to meeting all of you at future section events.

- Michael Lesser, 2015-2016, Environmental Law Section Chair


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