Envirosphere

By Michael J. Lesser, Environmental Section, NYSBA © 2013

ENFORCEMENT NEWS

Nanotech's Mega-Leak

The Albany media has regularly reported on the ever-expanding local nanotech and computer chip industries and the economic benefits that follow. Until now, there has been virtually no reporting on the environmental issues raised by those industries. In an article dated April 16th, 2013, the Albany Times Union reported that several workers were injured and hospitalized moving a large computer chip manufacturing machine into a new building at the College of Nanoscale Science and Engineering (SUNY Albany) after hydrogen peroxide leaked from the equipment. A machine was shipped loaded with a solution of 30% hydrogen peroxide, a concentration far higher than the antiseptic form of the chemical many of us keep in our first aid kits and which can cause severe burns to the skin and lung irritation.

ECL Article 37 serves as the general authority for hazardous substance regulation. Furthermore, 6 NYCRR Part 597.2(b) Table 1, includes hydrogen peroxide on the list of New York hazardous substances and provides a reportable quantity. Finally 6 NYCRR Parts 595.2(a) and 595.3 provide hazardous substance spill reporting criteria and release reporting procedures. It is not clear from the news item whether these release reporting standards were implemented. However, it behooves counsel for nanotech clients to be aware of the enforcement implications of handling hazardous substances. 

POTW Operators Must Report Sewage Discharges to NYSDEC

The new law, signed by Governor Andrew Cuomo on August 9, 2012, changes the requirements for reporting untreated or partially treated sewage discharges, also known as bypasses, from publicly owned treatment works and imposes new reporting requirements for publicly owned sewer systems ("POTW") and combined sewer overflows ("CSO").  It should be noted that NYSDEC has failed to meet the deadline for the promulgation of regulations to support the new law. In lieu of the regulations, NYSDEC will assist operators with questions or compliance until the regulations are in place. The Sewage Pollution Right to Know Act went into effect on May 1, 2013.

Attorney-General Eric Schneiderman Celebrates Earthday by Releasing Compilation of Recent Accomplishments

AG Schneiderman's office has provided a record of his environmental accomplishments for the past two years, which includes details about several  significant enforcement accomplishments.

$5.5 Million Settlement Between U.S., New York, & GM Resolves Long Standing Natural Resource Damage Claims At Onondaga Lake Superfund

This is one of a number of related settlements that address bankruptcy claims regarding environmental releases from the old General Motors Corporation and related entities. Old GM formerly manufactured and assembled metal and plastic automobile parts at its Inland Fisher Guide facility, which was adjacent to a tributary of Onondaga Lake. USEPA's claims at the site were previously settled for roughly $39.2 million. Under the terms of this separate agreement, the settling governments will receive additional allowed claims in the total amount of $5.5 million to settle claims for damages to natural resources at the Onondaga Lake site. The U.S. Department of the Interior serves as joint natural resource trustee along with the State of New York and the Onondaga Nation.  The NRD settlement will be allocated and distributed under a complex settlement formula.

NYSDEC Enters Administrative Consent Order with Hillcrest Industries

Under the terms of this NYSDEC Administrative Consent Order, Hillcrest Industries will fund an Environmental Benefit Project (EBP) in the Village of Attica and will undertake a number of pollution control measures for numerous violations of state environmental water, air and solid waste standards. The Order also requires Hillcrest to reduce facility emissions, comply with a remedial schedule, fund environmental monitoring services to be performed by a third party contractor and designate an employee as an on-site Environmental Compliance Officer. An additional $300,000 penalty was suspended based on future compliance with the Order. Hillcrest Industries manufactures abrasive blasting media and recycled glass material at its facility in the Village of Attica, Wyoming County.

The EBP includes improvements to the Village's pool and playground. A review of this Settlement and Order will be especially educational regarding the NYSDEC approach to multimedia violations. NYSDEC has made the Consent Order available on its website. 

In a parallel USEPA enforcement case, the Respondent spent more than $1 million to cease and prevent deleterious air emissions.

NYSDEC CRIMINAL FISH & WILDLIFE ENFORCEMENT

While the sudden appearance of criminal deer hunting dispositions in early spring may seem odd, one must remember that the justice system is often catching up with investigations commenced and enforcement actions filed during the various late fall and early winter hunting seasons. Typical serious ECL criminal violations committed while hunting include discharging firearms at night or on or near roadways or near houses. On many occasions, these crimes occur while the suspect is using an illegal deer hunting technique known as "Deer Jacking"  where the hunter uses a vehicle mounted searchlight to illuminate and freeze a deer in the darkness for an easy kill shot. The danger to anybody nearby is obvious. 

Also included is a rare example of an illegal animal trapping spree. Reading the details of these investigations will give the reader a glimpse into the difficulties and dangers of investigating this important but often overlooked area of environmental enforcement.

April 26, 2013, Four Charged with Multiple Deer Violations in Otsego County

Four Otsego County men were ticketed with multiple deer hunting violations on for illegally killing eight deer including discharging a firearm across a roadway. 

April 9, 2013, NYSDEC Investigation Leads to 54 Misdemeanor Charges in Chautauqua County Deer Jacking Case

    NYSDEC Conservation Police charged a man with 46 ECL Misdemeanor violations and 8 Penal Law Misdemeanors including:

• Prohibited use of a weapon (4 counts)
• Reckless endangerment, Second degree (4 counts)
• Possessing a loaded firearm in a motor vehicle (4 counts)
• Taking deer while in a motor vehicle (4 counts)
• Taking a deer from a public highway (4 counts)
• Taking deer out of season (3 counts)
• Taking deer out of legal hunting hours (1 count)
• Illegal taking of a deer (4 counts)
• Hunting deer with an artificial light (4 counts)
• Discharging a firearm over a road (4 counts)
• Discharging a firearm within 500 feet of a school property (1 count)
• Discharging a firearm within 500 feet of a factory (1 count)

In addition to being charged with misdemeanors of Environmental Conservation Law, charges also include reckless endangerment charges for shooting on public property and within a residential area. Each misdemeanor carries a jail term of up to one year and fines range from $200 to 2,000 per charge.  

March 20, 2013, Man Pleads Guilty to Numerous Counts of Illegal Trapping

A Franklin County man pleaded guilty last week to 31 violations of Environmental Conservation Law related to illegal trapping. Offenses included unlawfully setting 15 snares for coyote, multiple counts for unlawful use of body gripping traps on land and numerous related violations. The accused pleaded guilty to all charges and was ordered to pay total of $3,875 in fines and surcharges.

NYSDEC ADMINISTRATIVE DECISIONS RULINGS & ORDERS

In the Matter of Stasack, William and Stephen Stasack,
Ruling of the Chief ALJ on Motion of Summary Judgment - April 25, 2013
DEC File No. R4-2003-1023-117

The Stasack Ruling is important for its analysis of  some unresolved issues that arise from time-to-time to vex practitioners defending NYSDEC Respondents. These include:

1.     The definition of a navigable water way for the purposes of enforcing violations of Article 15 freshwater waterway regulatory procedures as per ECL Section 15-1505;
2.    The duality of Article 71, of the ECL which allows for parallel criminal and administrative prosecutions by NYSDEC for the same underlying violation;
3.    An analysis of Summary Judgment standards considered by the NYSDEC Office of Hearings and Mediation Services.   

This long environmental saga commenced with the Respondent's placement of fill materials in a relatively small and allegedly isolated pond with limited public access. Was the pond a navigable waterway for purposes of enforcing the ECL? Respondent's various motions to determine otherwise were denied and this matter plods on.

However, it behooves a party that wants to improve any waterfront property to check with DEC before improvements begin. A costly and lengthy litigation may be avoided.

In the Matter of BCD Tire Chip Manufacturing Inc.,
Decision and Order, March 26, 2013
DEC File No. R4-2011-0505-53

In this administrative enforcement proceeding, NYSDEC and Respondent tangled over an esoteric, but important, environmental issue regarding what exactly constitutes waste tires in an amount that triggers the ECL regulatory threshold. The Respondent allegedly stored 1,000 or more waste tires without a permit in the form of tire derived aggregate ("TDA") in violation of 6 NYCRR 360-13.1(b). The Commissioner held that TDA does constitute waste tires under the law and Respondent was therefore required to obtain a permit for its facility. Respondent was penalized $31,000 with $10,000, suspended. 

WEIRD BUT TRUE ENVIRONMENTAL NEWS

Giant Snails Invade Florida!  Invasive Species Slimes Locals!

Between climate change and careless commerce, invasive species are a growth area for environmental regulations and related enforcement. In a campaign both serious and somewhat unbelievable, South Florida residents are being warned to be on the lookout for one of the world's most destructive invasive species: the giant African land snail. The mammoth mollusks can grow to be rat-sized and were first spotted in Florida in 2011. More than 1,000 are being caught each week in Miami-Dade County as the snails relentlessly gnaw through stucco houses and most known species of plants. Experts recently gathered for a Giant African Land Snail Science Symposium to find solutions (now that would make a great T-shirt).

Giant snails have not attacked New York yet, but for a quick refresher on New York's aquatic and other invasive species enforcement efforts, check the NYSDEC website.

_____________________________________________________________________________________________________________________

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.

By John Louis Parker, Co-Chair, Committee on Legislation

The annual Legislative Forum and Luncheon of the Environmental Section held May 15 at the Great Hall at New York State Bar Center, One Elk Street in Albany was a well-attended success. Members of the environmental leadership of the New York State Assembly and Senate joined government officials, academics, advocates, and the General Counsel of the Department of Environmental Conservation to discuss New York's continuing recovery from Super Storm Sandy with a look to what could be ahead for the Empire State.

Super Storm Sandy pushed waters over seawalls and into the New York City subway system. It flooded homes, dislocated families, and knocked offline critical infrastructure. Sandy is the largest Atlantic hurricane on record, caused more damage on the North Atlantic coastline of the United States than any other storm, and claimed 72 lives in the metro area. The storm's impacts prompted Governor Cuomo to ask for $60 billion in disaster aid from the Federal Government. The well-attended and successful event began a thoughtful and detailed dialogue on issues of sustainability, adaptability, and resilience that will shape the New York metropolitan area for decades because severe weather events present an increasing threat to New York.

Among the legislative updates were discussions of legislation reducing harmful flame retardant chemicals in furniture, addressing non-point source pollution, recovering unused mediation to avoid sewage disposal, collecting mercury and device that use it, and possibly issuing a new environmental bond act. The panelists discussed the far ranging investigative powers of the Moreland Commission, the need for regulatory ratemaking proceedings to fund future infrastructure improvements, the potential benefits of implementing green infrastructure and encouraging use of natural ecosystem services such as wetlands to mitigate storm impacts, and potential options available in land use, municipal and environmental law to address extreme weather and climate change.

The program concluded with the newly appointed General Counsel of DEC discussing the challenges the agency faced in the aftermath of Sandy - the far ranging extent of the damage, the fact that the emergency authorizations expire on October 31, 2013, and future use of NY Works program to strengthen state assets, and proposed changes to the Region Greenhouse Gas Initiative (RGGI).

A special thanks to May 15 Legislative Forum.pdf, and attendees.

Jeffrey Brown, John Parker, Andrew Wilson, Co-Chairs, Committee on Legislation.

Carl Howard, our Section Chair, has asked that Section members participate in a confidential survey to assess how 'green' our Section is and to provide individuals with a means to reflect on what they can do to reduce their environmental impact.

"The Questionnaire is intended to promote 'green living' every minute of every day, to set an example and influence ELS members and others to promote a 'green ethic,' to reduce our individual carbon footprint, to elect representatives who share our values, to promote legislation regionally, nationally and internationally, to combat the threat of global climate change. It all starts with us."

Please take some time to complete the Questionnaire and share it with others. The Questionnaire can be accessed via the ELS Website at www.nysba.org/environmental, by directing your browser to www.nysba.org/ELSQuestionnaire, or by clicking here.

The Section thanks you in advance for your time.

By Michael J. Lesser, Environmental Section, NYSBA © 2013

This Month of March 2013, certainly roared in like an enforcement lion with a significant federal court CAA and RCRA enforcement jury verdict, a major federal CERCLA settlement and two significant 6 figure NYSDEC administrative penalty cases. These plus an eclectic mix of enforcement cases gives us something for everyone this month.

IN THE NEWS

Enforcement People in the News

We begin with the unusual news about the resignation of three experienced state environmental enforcement officials at roughly the same time. Most notable is the resignation of Robert Hallman from his position as Governor Cuomo's environmental advisor. This important change was accompanied by the departure of NYSDEC Deputy Commissioner and General Counsel Steven Russo and NYSDEC Region 3 Director Willie Janeway. All three were key enforcement policy makers as well as long-time friends of the Environmental Law Section.

In related news, former NYSDEC Commissioner Erin Crotty has been selected to become the new Executive Director of Audubon New York. The Environmental Section wishes them all well in their future endeavors.

Sadly, our Section also notes the recent passing of former NYSDEC/NYSDOH Hearing officer and Administrative Law Judge Francis "Frank" Serbent. The Environmental Law Section extends its deepest condolences to Frank's family and many friends.

CRIMINAL ENFORCEMENT

Tonawanda Jury Conviction for CAA Violations

In a rare federal jury trial, a corporation was convicted of 11 counts of violating the Clean Air Act and three counts of violating the Resource Conservation and Recovery Act. In addition, the company's Environmental Control Manager, was found guilty of one count of obstruction of justice and three counts of violating the RCRA. The company's underlying acts included the release of coke oven gas containing benzene into the air through an unreported pressure relief valve, operating a coke-quenching tower without baffles in violation of its Title V Clean Air Act permit. The manager's conviction was due to his instructing another employee to conceal that an unreported pressure relief valve emitted coke oven gas directly into the air.

Environmental Law Section member and AUSA Rocky Piaggione was one of the lead prosecutors for this case. The indictment can be found here.

Another Endangered Species Act Ivory Conviction

Whether it's rare rhinos or endangered elephants, government agencies continue to focus on the ESA in general and the illegal ivory trade in particular. On March 8, a Manhattan-based entity pled guilty to one count of felony-level "Illegal Commercialization of Wildlife." The company owner also pled guilty to one count of misdemeanor-level Illegal Commercialization of Wildlife. As part of the plea settlement, the guilty will forfeit more than 70 pounds of seized ivory pieces which have an estimated retail value of more than $30,000. In addition, a donation of $10,000 was made to the Wildlife Conservation Society for use in international elephant conservation programs.

This case serves as an example of interagency cooperation as it involved federal and state investigators as well as prosecution by the Manhattan DA. The ESA enforcement sector has become very busy on state and federal levels in recent years. While low key, NYSDEC and the US F & WS have had a strong working relationship for many years. Law enforcement personnel from both agencies are often cross deputized which opens the possibility of federal and state prosecutions for the same underlying offenses. It is easier to run afoul of these laws than one might think. So I am sure we will see more of these prosecutions.

Used Cooking Oil Thefts, A New Environmental Crime?

This item as reported in the NY Post can be construed as a testament to the effectiveness of the alternative biodiesel fuel boom. Criminals are now stealing used cooking oil left to be picked up by legal recyclers.

However, one can also assume that it is only a matter of time before this new breed of bio-pirates precipitates a serious spill or discharge of smelly grease to the environment. NYSDEC seems to have anticipated some issues by issuing a biodiesel fact sheet. However, to complicate enforcement versus these crooks used cooking oil is an exception to the state's regulated waste regulations which usually govern commercial waste haulers, 6 NYCRR Part 364(1)(e)(2)(i). If a spill does occur, the state may have to rely on the historic prohibition against "Putting noisome or unwholesome substances or maintaining noisome business on or near a highway" as per ECL § 71-3501.

FEDERAL CIVIL ENFORCEMENT

Multi-Party NRD CERCLA Settlement in Long Running Case

The settlement between Alcoa Inc. and other defendants and the St. Regis Mohawk tribe and state and federal officials involves historic discharges from two factories in Massena that released numerous pollutants, damaging the environment and the downstream Akwesasne (Mohawk) reservation along the Canadian border. Among other items, the settlement provides for $7.3 million for restoring grasslands, wetlands and fisheries; $1 million for buying hundreds of acres for state protection and $8.4 million for tribal programs.

NYSDEC ADMINISTRATIVE ENFORCEMENT HEARINGS, SETTLEMENTS AND ACTIONS

In the Matter of 636 Holding Corp.
Order, March 20, 2013
DEC File No. R2-20110208-46
http://www.dec.ny.gov/hearings/89827.html

This significant NYSDEC administrative enforcement proceeding concerns the Respondent's failure to comply with ECL Article 19 and various Sections of 6 NYCRR Part 201 by failing to file a permit or registration application with the Department for its Bronx facility in compliance with 6 NYCRR 201-6.3, and 6 NYCRR 201-6.1(a)(1). The operation ran without a permit for more than six years. The gist of the violations concerned the operation of three stationary combustion boilers without having obtained the required Title V permit, state facility permit or registration certificate. A civil penalty of $159,195 was assessed.

In the Matter of Johnson
Order, March 13, 2013
DEC CASE NO: 2416-2012DK
http://www.dec.ny.gov/hearings/89757.html

This Order issued upon a motion for a default judgment for a failure to appear addressed an individual Respondent's violations of ECL 23-0305(8)(f) and 6 NYCRR 551.2, for failing to file complete and accurate annual well reports for the two years for a privately owned gas well. This decision gives some insight into the minimal penalties provided by the ECL for this category of violations. Despite the default and failure to appear, Respondent's penalty was reduced to $1,000, of which only $250 was payable with the balance suspended pending compliance with the law.

In the Matter of West 161, LLC
Order, March 5, 2013
DEC Case No. PBS 2-328669NTM
http://www.dec.ny.gov/hearings/89576.html

In the Matter of 2112 Honeywell Avenue LLC
Order, March 6, 2013
DEC Case No. PBS 2-310816NDK
http://www.dec.ny.gov/hearings/89621.html
Finally, these two Commissioner's Orders continue the DEC methodical efforts to clear the unregistered petroleum bulk storage ("PBS") tank docket. What is notable and instructive is that both of these Orders cite and rely on the staff's standard penalty matrix based on the duration of the unregistered period (absent aggravating factors) as follows:

0-2 yrs. unregistered  -   $5,000.00;
2-5 yrs.                    -    $7,500.00;
5 yrs. or more           -  $10,000.00.

Unforeseen Hurricane Sandy Impact, Car Storage Tears Up LI Pine Barrens

What does one do with approximately 30,000 storm-damaged cars that have been shipped to eastern Long Island for storage? Some get parked on the former Grumman plant runways, but many other are parked and left on open, environmentally-sensitive land thus creating a proverbial "mud hole" and ensuing environmental damage within the protected Pine Barrens area. NYSDEC is commencing enforcement against the property owners.

NYSDEC Penalizes Operator for Improper Emergency Operation of Air Pollution Source

NYSDEC Region 4 remains active in enforcing state and federal air pollution laws as demonstrated when a company's air control equipment exploded last fall due to improper operation. The operator agreed to pay an $112,500 fine under the as per an administrative Consent Order signed with the state Department of Environmental Conservation. The operator also agreed to DEC oversight in obtaining and installing new pollution control equipment for its chemical resin processing operation. $165,000 in civil penalties was suspended pending compliance with the Order. The underlying explosion was deemed by DEC to be due to a lack of knowledge about the facilities operations by its employees. Therefore, DEC also deemed that the operation without pollution controls was not due to an emergency and not justified.

NYSDEC Region 9 Enforcement Summary

Unfortunately, not all NYSDEC Regional offices offer this information in a convenient format. Region 9's enforcement summary can be found here.

The Susquehanna River Basin Commission Enforcement

The place name may evoke an old Abbott & Costello comedy routine, but the SRBC means serious business. New York's nascent yogurt industry, as well as other large quantity industrial water users, now have both state and SRBC regulation to adhere to (and potentially big penalties to worry about) depending on their location. Large quantity water usage without the requisite permits can be costly as a major yogurt manufacturer discovered when it was penalized $130,000.00, by the SRBC.

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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.

New Yorkers have become increasingly cautious about shale gas extraction, according to a poll from Quinnipiac Polling Institute, and this may make this year's moratorium bill more likely to pass.

On March 6, the State Assembly approved Assembly 5424-A which would suspend issuance of drilling permits for high-volume hydraulic fracturing in the Marcellus and Utica formations until May 15, 2015 and requires a SUNY school of public health to complete a comprehensive health impact assessment. The current de facto moratorium on fracking is based on DEC's refusal to issue drilling permits until it completes an environmental impact statement and issues recommendations. DEC's review is conditioned on a review conducted by the New York Commissioner of Health, Dr. Nariv Shah, who in turn is awaiting completion of USEPA's study and studies conducted in Pennsylvania by the Geisinger Health System and the University of Pennsylvania.

The bill was sponsored by Kevin K. Sweeney, chairman of the Assembly Committee on Environmental Conservation, as well as over forty co-sponsors, including Assembly Speaker Sheldon Silver who made remarks about fracking's "unanswered questions" such as its impact on drinking water and climate change and the effect of radioactive material in fracking wastewater. Though a similar bill was introduced in the Senate by Senator David Carlucci a day before 5424-A passed the Assembly, 5242-A will face strong opposition by the Republican majority, as Senator Libous, Deputy Majority Leader, made clear with his stated goal that "no [moratorium] bill passes the Senate."

The fate of the moratorium is not clear even if it reaches Governor Cuomo's desk. Drilling supporters have been pressing hard against him but polling suggests that public opinion is shifting against fracking. Regardless of what happens with the bill, the de facto moratorium will remain effect.

For those looking to catch up on the issues surrounding hydraulic fracturing, ProPublica, the independent, Pulitzer Prize-winning investigative journalism non-profit, has been following the subject in-depth for several years.

The NYSBA Environmental Law Section will be presenting the 4th Annual Oil Spill Symposium on Wednesday, April 17th at the New York State Bar Center at One Elk Street in Albany, New York.

The program agenda will include panels and round table discussions on pending State oil spill legislation, Navigation Law liens, remediation, and an update on Oil Spill Fund activities, and recent Navigation Law cases. A networking cocktail reception will follow the Symposium.

To register online, click here.

By Michael J. Lesser, Environmental Section, NYSBA © 2013

GENERAL STATE ENFORCEMENT NEWS

Commissioner Proposes Environmental Audit Initiatives Policy
 
February finds the NYSDEC seeking public comment for the first new major enforcement initiative in several years. The proposed Commissioner Policy ("CP") encourages regulated entities to perform facility audits to achieve more compliance with the Environmental Conservation Law ("ECL"). At its core, the proposed CP is a revised version of an older NYSDEC amnesty policy which reduces or waives penalties for violations that are discovered and disclosed voluntarily subject to certain exceptions and conditions. What really differentiates this proposed CP from previous policies is the potential involvement of other state agencies and public authorities in the pollution prevention process. This includes audit assistance and reimbursement of some compliance costs. This proposed policy supersedes and repeals Commissioner Policy 19, entitled "Small Business Self-Disclosure Policy." The 60 day public comment period extends through Monday, April 22, 2013.  Written comments can be directed to:

    Monica Kreshik
    NYS DEC
    Office of General Counsel
    625 Broadway
    Albany, NY 12233-1500

or via to the Office of General Counsel at ogc@gw.dec.state.ny.us

Attorney General Schneiderman Continues Air Enforcement Action

New York joined seven states, the U.S. Environmental Protection Agency (EPA) and several environmental groups in reaching an agreement that will require American Electric Power (AEP), the nation's largest power company to make further cuts in air pollution emissions at 16 of the company's coal-fired power plants. The agreement updates a previous settlement, and requires AEP to pursue greater and faster reductions in sulfur dioxide (SO2) emissions.  The settlement also increases the funding AEP will pay New York by an additional $715,000 to fund environmental and public health projects.

NYSDEC ADMINISTRATIVE ENFORCEMENT

In the Matter of Trinity Transportation Corporation 
 
NYSDEC enforcement hearing regulations found at 6 NYCRR Part 622.12, allow the department's staff to commence an enforcement action using a motion for order without hearing. These are commenced by the submission of supporting affidavits reciting all the material facts and other available documentary evidence. The legal standards necessary to sustain the motion are those used for a CPLR summary judgment. In this case, Ruling, February 12, 2013, DEC File No. R1-20111206-200, the Administrative Law Judge ("ALJ") found that there were no material issues of fact regarding the underlying ECL violations (the improper disposal of a number of waste drums). However, the ALJ did find that there were substantial questions of fact regarding the civil penalty amount requested by DEC Staff due to disputes as to the number and condition of the drums. 

The true value of this case to the practitioner is that the ALJ provides a clear and concise summary of the administrative hearing precedents for these motions as well as the rulings on Respondent's defenses including a rejection of selective prosecution.

STATE CRIMINAL ENFORCEMENT

Dye Test Leads to Guilty Plea for Sewage Discharge into Catskill Creek

Following a NYSDEC investigation and dye test, a defendant pleaded guilty on January 10, 2013, in the Town of Catskill Justice Court to discharging sewage to the waters of the state without a valid permit.  He was fined $15,000, in the disposition of a misdemeanor charge. The defendant was charged with one count of discharging sewage to Catskill Creek for pumping raw sewage from the septic tank at his rental property into a nearby drain which then flowed into the municipal storm water system and then eventually to the creek. While not specified in the news item, unpermitted sewage discharges may invoke ECL Section 17-0803 as enforced by the criminal provisions of ECL Section 71-1933.

FEDERAL CRIMINAL ENFORCEMENT (NY)

The rundown of February's USEPA and US DOJ enforcement summaries read more like the synopsis of a Carl Hiaasen novel than a criminal docket given the focus on rare and endangered species. If you are unfamiliar with Hiassen's fiction, his villains are often sordid environmental despoilers that ultimately learn the literal meaning of the term "environmental justice" in a spectacularly lethal way.

Antiques Dealer Sentenced to Six Months for Illegal Trafficking of Endangered Rhinoceros Horns (SDNY)
 
On February 14th, an antiques dealer in Manhattan was sentenced in Manhattan federal court to six months in jail for obstruction of justice and creating false records in connection with illegal rhinoceros horn trafficking.

Rhino Smuggling Ring Broken Up (SDNY and other federal courts)
 
Three people were charged with wildlife smuggling and related charges for their alleged roles in an international rhino horn smuggling ring. The arrests and charges were part of "Operation Crash", a nationwide effort led by the U.S. Fish & Wildlife Service (FWS) and the Justice Department to investigate and prosecute those involved in the black market trade of endangered rhinoceros horns.

Executive Sentenced to Pay $1.1 Million in Fines and Community Service for Illegal Trade of Protected Black Coral (US Virgin Islands)

The former executive of a U.S. Virgin Islands-based company was sentenced in federal court in St. Thomas, U.S.V.I., for felony customs violations for the illegal import of protected black coral. Previously, his co-defendants had been penalized millions of dollars in additional financial penalties. Two of them were also sentenced to prison.

_______________________________________________________________________________________________________________
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 the Blog Administrator at samcapasso@gmail.com with any additional information or corrections or leave a comment.

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.

 

more . . .

By Mike Lesser

On March 7, 2013, the DEC held its annual Certificate of Completion ("COC") briefing for Brownfield Cleanup Program ("BCP") parties anticipating the issuance of a complete and approved COC in the 2013 calendar year. The DEC currently projects issuing up to fifty-nine COC this year. The process itself involves the parallel development of series of critical documents including Site Management Plans ("SMP"), Final Engineering Reports ("FER"), and Easements. The delivery of these documents and any relevant attachments should be in approved formats or media and are generally time sensitive. These also may require proof of notice and service. Given the complexity of the COC procedures and the ever shrinking DEC staff it behooves all interested attorneys and consultants to be proactive and current with all BCP and COC procedures, templates, forms and checklists. For more information, consult the following NYSDEC information links:

COC Process; SMP, FER and Easement Templates; Easement Attorney Checklist & Certification

http://www.dec.ny.gov/chemical/48236.html (or search "Templates");

Electronic Data Deliverables (EDDs)

http://www.dec.ny.gov/chemical/62440.html (or search "environmental data submission").

By Michael J. Lesser, Environmental Section, NYSBA © 2013

IN THE NEWS

The turn of the New Year found news stories focusing on the extensive efforts of the NYSDEC Divisions of Law Enforcements (DLE) and Fish & Wildlife to crack down on the illegal ivory trade in New York. Recent law enforcement efforts have resulted in the confiscation of more than two tons of ivory. The ivory trade has been banned in New York with few exceptions since the early 1970's, as set forth in various provisions of Article 11, of the NY Environmental Conservation Law.

LEGISLATION

Criminal Environmental Damage Law Introduced

This proposed legislation introduced as S1016-2013 by Senator Robach (reproduced in its entirety below) is an attempt to correct the inequities left by lingering environmental impacts that are often more costly and damaging than the underlying crime. In effect, as the bill's justification states, the environment is a victim worth protecting in its own right. While the draft bill requires an underlying felony as a prerequisite it is classified as a Class C Penal Law Felony with severe penalties in its own right. Without such a law, prosecutors and law enforcement are often left with the unsatisfactory choices of trying to fit environmental damages within the constraints of lesser Penal Law offenses such as criminal mischief or vandalism or even establishing damages under the ECL via inquest and expensive forensic investigation (See ECL Section 71-2723).

At this writing, the bill has no Assembly counterpart and may be little more than an academic exercise in this legislative session. But, it is still an interesting start in addressing a vexing side effect of many non-environmental crimes.

ADMINISTRATIVE ENFORCEMENT BY NYSDEC

January 2013, saw two more examples of the department's ongoing efforts to enforce administrative Orders on Consent in default previously entered in settlement with Respondents (citations and links below). The underlying Orders in both matters involved water quality or petroleum bulk storage issues. If the Respondent's do not comply with these new Orders, the matters will most likely be referred by NYSDEC to the Attorney General's office for further enforcement. The message is simple: DEC will enforce its consent orders and seek additional penalties for violations.

Commissioner's Enforcement Orders Issued in January 2013

In the Matter of HEZEKIAH VARCIANNA, Respondent.
Case No. R2-20121025-653, http://www.dec.ny.gov/hearings/88446.html

In the Matter of the ADE RANTI, Respondent.
Case No. R2-20121025-650, http://www.dec.ny.gov/hearings/88561.html

USEPA REGION 2 NEWS

There can be no better news in the depth of winter than to know that the USEPA has scheduled a public listening session by its Caribbean Coral Reef Protection Group, in St. Thomas, USVI, on February 25, 2013 (with live videoconference locations in San Juan, Puerto Rico and St. Croix, USVI). As painful as this seems to those of us who cannot be at any of these locations, the vital work of this multi-agency Group, led by USEPA Region 2, will proceed in seeking its goal of coordinating government strategies to protecting the fragile coral reefs near Puerto Rico and the USVI from further damage. Threats to these ecosystems include manmade pollution, poor recreational boating habits and global climate change. It is unfortunate that the Group's jurisdiction would not appear to extend to the coral reefs off the coast of Florida which face many of the same dangers. For more information, contact USEPA via John Martin, (212) 637-3662, martin.johnj@epa.gov.

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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 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 and NYSBA makes no guarantees as to the accuracy of the sources cited. Please contact the Blog Editor at samcapasso@gmail.com 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.

(Editor's Note: This is the first edition of what we hope to make a regular update. Please feel to leave comments with any additional updates you may have on recent enforcement.)

Zaheer Tajani, recipient of the Section's Minority Fellowship in Environmental Law, stands as a representative of the 21-year history of the exceptionalism of the Program's applicants. A first-year law student at Pace Law School and an EPA ORISE Fellow with a B.S. in Civil and Environmental Engineering from Cornell, Mr. Tajani came to Pace with a passion for water advocacy after working on water purification systems in Honduras and seeks to use his engineering background to inform his environmental advocacy. He has already begun making an impact at Pace as a founding member of the Pace Energy and Climate Law Society while also interning at the Land Use Law Center and assisting in coordination of the National Environmental Law Moot Court Competition. The Section expects great things from Mr. Tajani and hopes the Minority Law Student Fellowship will help him realize his full potential.

The Minority Fellowship in Environmental Law seeks to provide opportunities to minority law students in the environmental legal field by providing stipends to the recipients for summer environmental positions in government agencies and environmental interest organizations. As with each year since this Program was established by the Section and the New York City Bar Association, competition for the Fellowship was fierce. These are some of the candidates he was up against:

Carolyn Matos Montes, a first year law student at Cornell Law School, who showed incredible commitment to environmental protection in her application. Though just beginning her career, Ms. Montes has already conducted research on the links between climate change and public health at Columbia's Center for Climate Change Law as well as botanical field research in Puerto Rico while earning her B.A. in Urban Studies - Sustainable Development at Columbia University.

Mohammed Farooqui, a first year law student at Boston Law School, will be an asset to whomever is quickest to employ him. Mr. Farooqui interned with the Honorable Louis York of the New York County Supreme Court as a Robert H. Brown Scholar at St. John's University, where he earned a his B.A. magna cum laude in Political Science and M.A. in Political Theory.

These were not the only impressive candidates. Mr. Tajani was also competing with students from across the region, including Rosanne Breakenridge, Mohammed Haque, and Peter S. White II.

Rosanne Breakenridge is a second year law student and was an environmental engineer and Fulbright Grantee working on constructed wetlands prior to attending Temple Law School. Mohammed Haque, a first year law student, pursues his passion for justice and disaster relief at SUNY Buffalo School of Law. Peter S. White II, a second year at St. John's University Law School, is interested in environmental justice both domestically and abroad.

Also among the competition were three classmates from Pace Law School: Audrey C. Kang, Levan Thomas, and Yiyi Wong.

Audrey C. Kang, a second year law student at Pace Law, is a photographer turned environmental advocate after time spent working for newspapers in Kodiak and Valdez, Alaska. Levan Thomas, also from Pace Law School, is a first year law student with extensive accounting and business experience, not to mention his other incredible experience working with rural electrification in Ghana, sustainable development, and constructing his own biodiesel lab at age fifteen. Yiyi Wong, a second year law student, came to Pace Law School with an M.S. from North Carolina State and already having been a Fulbright Research Scholar in China and an NSF Foundation Fellow.

Mr. Tajani joins a host of exceptional past fellowship recipients. In previous years, the Section was able to provide multiple fellowships, but current funds did not allow the Section to present awards to all those who deserved them. The Section regrets that it was not able to award more of the applicants with fellowships. If you would like to help the Section provide more scholarships, please contact Lisa Bataille.