September 27, 2014

NY Environmental Enforcement Update July 2014, Vol. 1, #19


By Michael J. Lesser, Environmental Law Section, NYSBA © 2014

The month's Update introduces a new feature: EPA Region 2 Administrative Settlements/News. In addition, the Environmental Law Section has published an E-Book entitled "NY Environmental Enforcement Update 2013 Annual Report" which is a compilation of the monthly 2013 Updates and can be found on the ELS website (click on title in the left margin menu) at http://www.nysba.org/Environmental/ or directly downloaded as well.


Enforcement News

GE Settles Hudson River Liability

General Electric Co. (GE) will pay $7.95 million to settle part of a federal lawsuit filed in 2009 by several Saratoga County municipalities that shut down or switched water suppliers when GE began dredging PCBs from the Hudson River. This river dredging is part of the federally mandated $1 billion Hudson River NPL Site dredging project (an element of GE's CERCLA settlement with EPA).


Corning Enters Consent Order for Historic Contamination Study

Corning Incorporated entered an Order with DEC to perform an environmental study on local properties including a school. Elevated levels of lead and other contaminants were discovered during a soil excavation undertaken as part of the Corning-Painted Post East High School expansion project. Ash, glass and brick with hazardous levels of lead and cadmium were also detected.


Seasonal Shut Down of Indian Point Nuke Plant Proposed to Save Fish

DEC made this controversial proposal as part of the operator's SPDES (water discharge) permit applications to prevent harm to Hudson River fish populations. The shutdowns would occur during the state's peak power summer usage periods.


Diesel Truck Inspections in Albany EJ Area

DEC Conservation Police conducted a diesel truck pollution prevention detail in South Albany as part of Operation ECO-Quality. This Operation has helped environmental justice (EJ) communities evaluate and address environmental conditions via vehicle checkpoints and roving patrols to inspect diesel trucks for compliance with clean air standards and other relevant laws. DEC also inspects small and mid-sized regulated air emission sources in low-income and minority communities as part of the program.


LI Garbage Truck Shortage Means Garbage Trains?

DEC issued an unusual 30 day "Emergency Authorization" permitting the temporary establishment of a rail trans-loading operation at an industrial site in Brentwood, Suffolk County. This would alleviate a backlog of solid waste on eastern Long Island. The emergency allows for the loading of wrapped bales of solid waste into rail cars with sealed lids to facilitate the removal of the stockpiled solid wastes.


DEC Pesticide Policy Takes Effect

As previously announced in June DEC released the Long Island Pollution Prevention Strategy (Strategy), the plan for a new pesticide pollution prevention approach on Long Island. The overall goal of the Strategy is to protect water quality from pesticide-related impacts while continuing effective pest management on Long Island.


DEC Cracks Down on Illegal Hudson River Fishing

During April-May, DEC Officers stopped more than 400 fishermen and ticketed about 60, as part of "Operation River Run," an effort to protect the spring migrations of fish species in the Hudson River watershed, including eels. The illegal taking of young eels has increased substantially due to the large demand of the Asian food market.


DEC Workers Spied on by Management

DEC staff has filed a union grievance challenging the state's use of surveillance cameras to enforce work place time rules.


DEC Warns about Phosphorus Limits

DEC has made several press releases reminding the public that new limits and restrictions are in place related to phosphorus limits. DEC reminds all that the recent detergent and fertilizer runoff prevention law is in effect. Recall also that the related dishwater runoff restrictions are in effect as well.


Bug Infested Firewood Seized/Destroyed

The DEC and the NYS Department of Agriculture and Markets (DAM) confiscated and destroyed infested firewood and ash logs located at an Ulster County firewood dealer. The goal is to prevent an additional infestation of the emerald ash borer (EAB), an invasive Asian species that kills trees. This continues the state's war against this environmental and economic threat.


Legislative Update

Geologists May Now Certify Remediation Projects

A proposed law that would provide for the professional licensing of geologists has passed both houses of the legislature and awaits action by the Governor (See, Bill Nos. A 4753D / S 3810D, http://public.leginfo.state.ny.us/menugetf.cgi, enter Bill No. for text/status). Currently, only NY "Professional Engineers" are licensed to certify most environmental remediation projects performed under DEC supervision.


People in the News

DEC Gets New Assistant Commissioner of Administration

Jeffrey Stefanko has been appointed as the new Assistant Commissioner of Administration for the DEC. His duties will include directing all staff and programs within the Office of Administration, which includes the Divisions of Management and Budget Services and Operations.


DEC Lieutenant Receives EPA Bronze Medal

DEC Lieutenant David Clarke received the US Environmental Protection Agency's (EPA) Bronze Medal for outstanding work related to the illegal dumping of 8,100 tons of construction and demolition debris. That material was dumped on a property in Frankfort, N.Y.


ECO Sean Reilly is "Officer of the Year"

DEC Environmental Conservation Officer (ECO) Sean Reilly received the 2013 "Officer of the Year" award from the Northeast Conservation Law Enforcement Chiefs Association (NECLECA).


DEC Oil Attorney Goes to Worker's Compensation

DEC Attorney Scott Caruso (f/k/a Scott Owens) is leaving the agency for a position as staff attorney with the NYS Worker's Compensation Board. Scott spent much of his legal career addressing petroleum spill and petroleum bulk storage enforcement and regulation. His expertise will be missed (source: telephone call with Scott Caruso).

State and Local Enforcement

Upstate Waste Carting Company Settles AG Antitrust Charges

The NY Attorney General's office entered into a settlement with a waste hauler resolving restrictive contracting practices and unlawful restraint of competition. The settlement agreement also requires more open business practices in order to rejuvenate competition in the industry.


Federal Enforcement

Under Reported Fluke Convictions is No Fluke (EDNY)

A federally-licensed Long Island fish dealer and its employees pleaded guilty today in federal court to federal felonies stemming from their role in systematically under reporting fluke (summer flounder) harvested as part of the federal Research Set-Aside (RSA) Program. The crimes included falsification of records and Lacey Act false labeling. The defendants will be subject to between $222,000 and $276,000 in combined fines, restitution and community service.


Onondaga Lake NPL Clean Up Continues

EPA proposed a PCB cleanup plan for Lower Ley Creek portion of the Onondaga Lake NPL Site located in the Town of Salina.


Responsible Parties Continue Mercury Clean Up

The Second Phase of cleanup work is to start at the Mercury Refining NPL Site located in the Towns of Colonie and Guilderland near Albany. The cleanup of the Site is being conducted by responsible parties with oversight by the EPA at an estimated cost of $9.3 million.


PR Junkyard Must Control Waste Liquids

EPA Region 2 reached a legal settlement with an auto junk yard in Puerto Rico for alleged violations of federal hazardous waste law. Respondent will make site improvements to control runoff and invest $133,000 to install equipment that will clean, remove and store of hazardous liquids generated by scraped vehicles. It will also pay a $29,000 penalty.


IBM Settles Up for Clean Up

The District Court of the Southern District approved a legal settlement agreement between EPA and International Business Machines Corp. (IBM). IBM will cleanup and reimburse EPA for past costs at the Shenandoah Road Groundwater Contamination NPL Site in East Fishkill. IBM previously used the site for an industrial cleaning operation that allowed waste chemicals to be released into a septic tank and pit.


Cleaning Co. Hit with $375k Pesticide Penalty

EPA Region 2 reached a settlement with Air Techniques, Inc. of Melville, resolving federal pesticide violations. Respondent is a wholesale cleaner and used a surface disinfectant to clean instruments, equipment and surfaces in dental offices and medical facilities, sold unregistered pesticides and imported pesticides into the U.S. without proper notification. The company will pay a $375,000 penalty.


DEC Region 4 Administrative Orders

DEC Region 4, is currently the only DEC Regional office that regularly posts all administrative enforcement consent orders and settlements. While limited in scope, this data can be a useful window into the agency's enforcement policies statewide.


In the Matter of Terri Gargano d/b/a Scott's Lawn Service
Order on Consent
DEC No. R4-2014-0506-112

Respondent violated ECL §33-1301.8-a by engaging in the commercial application of pesticides without being registered with the Department. A civil penalty of $1,000.00 was assessed in accordance with ECL § 71-2901(1).


DEC Administrative Enforcement Orders, Decisions and Rulings

In the Matter of Florence Edelstein,
Commissioner's Order
DEC File No R2-20130513-183

Respondent guaranteed an adverse holding by failing to respond or file an answer to a DEC enforcement action involving petroleum bulk storage violations at 25 NYC residential properties. Most conspicuous was the failure to accurately register each facility, in violation of 6 NYCRR 612.2, which resulted in a combined assessed penalty of $113,500.

However, most interesting was the Commissioner's modification of the ALJ's hearing report to hold:
1. That where a discrepancy exists in total violations between the staff's initial Notice of Violation (NOV) and the following motion papers, the motion papers govern; and
2. That the period of penalty calculation (per day) runs from the last date of staff's inspections (of the 25 properties) to the filing date of the complaint (not through the course of the proceeding). The Commissioner did note that this calculation period is "conservative."

In the Matter of Green Thumb Lawn Care, Inc.,
Commissioner's Order, 7/10/14
DEC File No. CO7-20060824-1

This matter involves an Article 33 enforcement case that fizzled down to a quibble over penalty calculations after more than ten years of administrative and civil litigation. What remains however is an interesting dissertation on the right (or lack thereof) of the DEC to recover attorney fees in an administrative enforcement hearing. Specifically, the Commissioner held that "Absent statutory or other legal authority, or a written agreement, that specifically authorizes the recovery of attorneys' fees - and staff has not cited any such legal authority or agreement - such fees are not recoverable." It should be noted that general cost recovery authorities do exist elsewhere in the ECL. But, the pesticide enforcement provisions at ECL § 71-2907, do not specifically provide for attorney fee recovery.


Weird News

How Many I.C.E Agents Does it Take to Seize a Land Rover? Answer Below!

A Guilderland, NY man was surprised when ten (count em! ten!) Immigration and Customs Enforcement (ICE) Special Agents of the Office of Homeland Security seized his used British-made Land Rover light truck. Allegedly, the vehicle had been unlawfully imported by a previous owner and did not meet U.S. emissions and safety standards. But does it take ten agents to fetch one light truck?


Giant African Land Snails Arrive in SoCal by Air (You Have Been Warned! Again!)

As noted in prior issues of the Update, this truly gross invasive species is spreading. But, now we also learn that it is an eatable West African delicacy. Bon appetite!


Pythons Continue Stranglehold on Florida Ecosystem

This destructive and dangerous invasive species continues to make itself at home in parts of Florida. Solutions are few.

September 1, 2014

Fracking Supporters See Continued Judicial Obstacles


By Teresa Bakner

Pro horizontal hydraulic fracturing ("fracking") supporters suffered a setback due to two related decisions recently issued in Albany Supreme Court in July 2014:

Wallach v. the New York State Dept. of Environmental Conservation, 2014 WL 3772699 (N.Y.Sup.) (Trial Order) Albany County, July 11, 2014


Joint Landowners Coalition of New York, Inc. v. Cuomo, 2014 WL 3772700 (N.Y.Sup.) (Trial Order) Albany County, July 11, 2014

Petitioners had sought to compel various state officials to finalize a Supplemental Generic Environmental Impact Statement ("SGEIS") relative to the use of fracking to extract natural gas. The process to finalize the document has been perpetually delayed without any public schedule for completion. All causes of action were dismissed mainly due to the lack of standing by those who originally commenced the two actions.

August 10, 2014

NY Environmental Enforcement Update June 2014, #18


By Michael J. Lesser, Environmental Law Section, NYSBA © 2014

Enforcement News

EPA Fines US Department of Energy for Nuke Releases

The DOE paid a $155,000 fine for twice allowing radiation to escape into the air during the cleanup of 1950s-era radioactive waste at Knolls Atomic Power Labs. DOE admitted to eight separate CAA violations of National Emissions Standards for Hazardous Air Pollutants (NESHAPs) involving the release of various radioactive pollutants formerly generated by the Niskayuna (near Schenectady) facility.


San Juan, PR Faces Huge Fines for Sewage Releases

According to the San Juan Star, the EPA commenced an action against the City for alleged sewage releases into local waterways in violation of the Clean Water Act (CWA). EPA Region 2, which has jurisdiction over Puerto Rico as well as New York, seeks penalties retroactive to 2013, as the City allegedly ignored prior warnings about these releases. In general, a glance at the stories in the Star indicates that Puerto Rico is in extremely dire economic, as well as environmental, straits.


EPA Proposes Plans to Cut Power Plant Carbon Emissions

Not without controversy, EPA proposed guidelines to cut carbon emissions from existing power plants. However, current data indicates that NY will be among the least impacted states because less than 10% of its power generation relies on coal as a carbon emitting fuel.


NY Waterways 15th Worst in Nation! Room for Improvement?

The Environment New York Research & Policy Center finds that industrial dischargers released 5,303,190 lbs. of toxic chemicals into New York's waterways in 2012. This gives the state's waterways the dubious distinction of being the 15th worst in the nation, according to the report entitled "Wasting Our Waterways."


DEC Issues Bogus "Clean Fill" Alert!

The re-emergence of scammers offering so-called "clean" (but really contaminated) fill for construction projects has compelled DEC Region 1 to issue an unusual warning to the public. Counsel with clients on Long Island (and elsewhere) should take heed.


NY Cracks Down of Illegal Ivory Trade

State leaders reached an agreement on a new law to fight the state's illegal ivory and rhinoceros horn trade by imposing tougher penalties and increased limitations on purchases and sales. The enforcement effort against the illegal ivory trade is a priority for both state and federal law enforcement agencies.


DEC Issues Norlite Draft Permit, Public Comment Sought

The DEC announced the start of a public comment period for a draft hazardous waste permit and cleanup proposal for the Norlite, LLC corporation in Cohoes, Albany County. Without much fanfare, DEC continues enforcement and remediation as part of the 6 NYCRR Parts 373,374 permit renewal process for hazardous waste transfer storage and disposal facilities (TSDF).


Invasive Species Compel New Boat Cleaning Enforcement

The DEC issued new regulations that require boaters to remove all visible plant and animal materials from boats, trailers and associated equipment, and to drain boats prior to launching from DEC lands. This regulation is expected to reduce the rate at which invasive species are introduced to state lands.


NYC Issues 2013 Hazardous Materials Annual Report

The New York City "Community Right-to-Know Laws," (Local Laws 26 and 92), Report features the results of approximately 8,900 NYCDEP inspections of facilities that store hazardous materials within the City.


Pesticide Releases Remain DEC Priority on Long Island

The DEC issued "The Long Island Pesticide Pollution Prevention Strategy" highlighting the continued issue of pesticide releases in Long Island. The final report and executive summary provide a regulatory plan for the protection of both surface waterways and the region's sole source aquifer and drinking water resources.


How Far Can a Site "Look Back" Look Back?

Despite being on the state Registry of Inactive Hazardous Waste Sites as a Class 2 (significant threat) site for 31 years, DEC is back at the former Al Tech Specialty Steel property for more environmental investigation. The 68 acre site is near a tributary of the Hudson River in Colonie, Albany County. To liberally paraphrase an old saw, old hazardous waste sites never die, they simply ... fade into another site investigation.


2014 NYS Legislative Update

The less than scintillating end of the 2014 legislative session left a number of Bills passed by the Legislature awaiting signature by the Governor at press time including:

S7878/A10135 - Brownfields Cleanup Program tax eligibility extension and 100 million dollars appropriated to the state superfund;

S6617-B/A6558 - The Community Risk and Resiliency Act would require consideration of the effects of climate change and extreme weather events before issuing state permits and allocating infrastructure funds.

Despite public outcry and sponsors in both houses, Bill No. S7718/A9926, amending the Environmental Conservation Law to compel financial assurance by oil train facilities for spill and accident costs ultimately languished at the end of session. The status and text of all session laws can be found online at the Legislature's law site.


Enforcement People in the News

DEC Water Engineer Recognized

The Department commended water engineer Larry Lepak of the Kirkwood office for being awarded the Public Service Excellence Award by the NYS Academy for Public Administration for outstanding performance by a public servant.


NYCDEP Promotes Two Environmental Policemen

The New York City Department of Environmental Protection promoted Justin Kight to the rank of Captain and environmental police officer Justin Romer to detective specialist. Since 2002, DEP has doubled the size of its Police Division to its current 200 sworn members.


State and Local Enforcement

Roberto Clemente Park Update, More Toxic Sites Discovered (Suffolk Co.)

The Suffolk County District Attorney continues to investigate what has become a multiple contaminated site situation that started with the discovery of 50,000 tons of including asbestos, heavy metals and pesticides that had been used as fill material at this public park. Sampling results confirmed the disposals. The sites are in or near environmental justice communities.


Suffolk Co. Homes Built on Contaminated Fill!

The Suffolk County District Attorney's office continues to investigate the origins of illegally released contaminated soils in an Islandia cul-de-sac. The location was used for the construction of affordable housing for returning veterans. This investigation is an outgrowth of the Roberto Clemente Park toxic fill investigation (see above item).


DEC "spears" Illegal Spear fishermen

A commercial boating captain and his crew pleaded guilty to illegal spearfishing in waters off Valiant Rock in Block Island Sound. The Captain will pay a $15,000 fine and must participate in community service programs.


DEC Seizes Exotic Animals

DEC seized 20 animals from an allegedly unauthorized sanctuary, located in Sinclairville, (Western) New York as part of a joint effort with the United States Department of Agriculture's Animal and Plant Health Inspection Service (USDA) and the International Fund for Animal Welfare (IFAW). The animals included 12 tigers, 3 lions, 3 bears and 2 wolves, which were placed with licensed facilities pending further investigation and possible prosecution.


Federal Enforcement

EPA Illuminates Buffalo's Bad Bulb Management

Under an Agreement with EPA, The City of Buffalo will host nine community recycling events to collect fluorescent light bulbs, electronic waste, and household hazardous waste from city residents. The City will also pay a $21,094 penalty and spend at least $79,000 on the recycling events. The underlying hazardous waste violations involved the unlawful handling and disposal of various waste chemicals and waste fluorescent bulbs which are classified as such due to the mercury content of the bulbs.


U.S. v. Gordon (EDNY)

Defendant was sentenced to 30 months imprisonment and 2 years of supervised release, for smuggling elephant ivory into the United States in violation of the Lacey Act and related laws. He will also pay a fine of $7,500 and forfeit $150,000, and approximately one ton of elephant ivory seized by agents from defendant's Philadelphia store.


U.S. v. Hawkins (WDNY)

A Buffalo, N.Y. man was convicted of a misdemeanor for being an accessory after the fact to a false statement in violation of the Clean Air Act (CAA). He was sentenced to one year probation. The defendant had been employed as an air sampling technician and a project monitor. During an asbestos abatement process, he and his co-defendants created false project logs to document the progress at the Kensington Towers abatement project. Accurate work logs are required to be maintained under the CAA.


U.S. v. Smith (WDNY)

The owner of a Pennsylvania company pleaded guilty to violating the federal Clean Water Act (CWA). The charge carries a maximum penalty of one year in prison, a fine of $25,000 per day of violation, or both. The defendant released demolition debris into a local river during the demolition of condemned buildings on either side of the river.


U.S. v. Li (District Court of N.J.)

The owner of a Chinese antique business was sentenced to serve 70 months in prison for heading an illegal ivory smuggling conspiracy in which rhino horn and elephant ivory objects worth more than $4.5 million were smuggled from the United States to China. This prosecution is part of the long running "Operation Crash" which has previously led to additional federal convictions under the Lacey Act and other federal laws.


DEC Region 4 Administrative Orders

In the Matter of Selkirk Cogen Partners
Order of Consent
File No. R4-2014-0522-1 20

Respondents were assessed a civil penalty of $7,000.00, for a violation of an air permit condition as per 6 NYCRR 201-6.5(a)(2) by exceeding the NOx (nitric oxide) hourly and pounds per hour limits for a single air emission source. Respondents own and operate a co-generation power facility in Selkirk, New York.


In the Matter of Ruby Lake Glass, LLC
Order of Consent 6/16/14
File No. R4-2014-0507-113

Respondent was assessed a civil penalty of $1,160, for violations of 6 NYCRR 201-1.2 (a) for operating an air pollution control device without a permit; and for the reintroduction of collected air contaminants from the control device to the atmosphere. Respondent uses a cyclone device to collect, recycle and salvage fine particulate glass. This collected glass particulate then goes into a collection bag at the bottom of the cyclone.


In the Matter of the Town of Colonie
Order of Consent
R4-2014-0402-100

The Town was penalized for exceeding leachate release parameters at the Town landfill in violation of its 6 NYCRR Part 360 solid waste permit. The Town was assessed a civil penalty in the amount of $26,000, with $6,000 of the civil penalty due upon entry of the Order and the balance suspended, and payable for the failure to comply with Order's "Schedule of Compliance." The compliance schedule focuses on leachate control and management.


Weird News

Harley Davidson Goes Electric!

America's famous motorcycle brand goes green with an electric prototype. The image of the "Easy Rider" does not come to mind.


Birds Attack Blondes in British Park!
Was Hitchcock's movie ("The Birds") based on fact?


Former Reality TV Star Attempts Extortion for Negligence at Nuke Facility

A Tennessee man was charged with extortion for threatening to publicize alleged negligent practices at a federal nuclear materials facility. Now that should be a reality TV show.


Even More Smart Car Tipping in San Francisco!

As reported in the April Update, somebody in the City by the Bay has a problem with the tiny eco-friendly "smart cars."


Goats Go Get Invasive Species!

DEC has called out a brigade of ten goats to munch away at the invasive plant species that have populated the Oak Brush Plains State Preserve at Edgewood in Suffolk County. Locals will remember this property as the former Edgewood State Hospital. BAAaaaaah!


Florida News? Am I in the Right Place?

Relax! Recently, I visited Southwest Florida where I spoke with representatives of the Florida Department of Environmental Protection and local public interest groups. The impact of man-made nutrient discharges into the Myakka and Peace River basins is a high priority issue among the locals. Florida's environmental agencies are organized differently from New York's. But the following should help if the environment of Southwest Florida of interest:

Florida State Government
Florida Department of Health
Florida Department of Environmental Protection (includes state parks)
Florida Fish and Wildlife Conservation Commission
Southwest Florida Water Management District
Florida Water Management Districts (in general)
Charlotte Harbor National Estuary Program

July 13, 2014

NY Environmental Enforcement Update May 2014, Issue #17


By Michael J. Lesser, Environmental Law Section, NYSBA © 2014

Enforcement News

EPA to Review All Consent Decrees as per 2014 -2018 Strategic Plan

As part of EPA's FY 2014-2018 Strategic Plan, the agency has set the goal of reviewing the compliance status of 100 percent of open consent decrees by 2018. EPA claims that it reviewed only 91 percent in FY 2013. It behooves those who took advantage of any past lax enforcement of existing decrees to review their compliance status ASAP.


RCRA TSD Financial Assurance Does Not Apply to Subsequent Owners

In the Thompson Corners LLC et al. v. DEC, et al. decision it was decided that the subsequent owner of a former hazardous waste treatment, storage, disposal facility ("TSDF") is not liable for the failure to maintain financial assurance for remediation costs because the current owner had never been required to have a TSD permit. The court found that the DEC could only assess liability against parties that were actively involved in waste operations. Specifically, "As mere subsequent owners of property where a former TSD facility was present, petitioners do not fall within the purview of such requirement." The original TSD permit expired in the early 1990's when the permit holder ceased operations. Petitioners took subsequent ownership in 2005, from another party in the chain of title. Originally, DEC had also imposed civil penalties for this regulatory violation under ECL Article 71.


Kodak Bankruptcy Settlement Ensures Clean Up

DEC announced that remediation will continue after Kodak's Bankruptcy Settlement via the establishment of an "Environmental Trust" that will be established to continue the cleanup the Kodak's Eastman Business Park and the Genesee River. In a unique bankruptcy settlement approved by the U.S. Bankruptcy Court, Kodak is required to establish and fund a $49 million environmental trust. If the fund is depleted, New York State will cover costs up to $50 million for additional remediation or environmental protection. If total cleanup costs exceed $99 million, Kodak and DEC will each be responsible for 50 percent of the remediation costs.


Schenectady Sewage Settlement Furthers Economic Development

In an arrangement with both significant environmental and economic impacts, the DEC and the City of Schenectady entered into a water pollution Order which will allow new sewer connections for a General Electric Co. battery plant, the former ALCO brownfield site on Nott Street (a possible casino location), and for the adjacent Town of Glenville. The Order addresses improvements to an outfall pipe from the City's sewage treatment plant ("POTW") that discharges into the Mohawk River.


NYSDOT Derailment Reporting Enforcement for Oil Trains

The dramatic increase of the interstate rail transport of crude oil through N.Y. has led to the re-emergence of the NYS Transportation Law as an element of environmental enforcement. Specifically, Article 5, Sections 115-135, regulates rail transport. Section 131, allows for 5,000 fines per violation for failure to report derailments within one hour of occurrence. NYSDOT enforces these laws.

Based on this legal authority, Canadian Pacific Railroad was fined the maximum of $5,000, for not reporting a derailment of oil tank cars near Albany for almost five hours. There were no injuries or oil releases.

Due to recent tragic derailments of similar oil tank cars in Canada and several states, increased environmental scrutiny and strict regulatory enforcement for such trains and train yards are now a NYS priority.


Alleged Asbestos Dumping in Brentwood Park

In another cautionary tale for municipalities, high levels of asbestos were detected in an estimated 32,000 tons of debris dumped at an Islip Town park in Brentwood, Suffolk County. An expensive cleanup is guaranteed. Early reports indicate that the illegal dumping may have originated with the Town's acceptance of "free fill" for the park and an adjacent property. The Suffolk County District Attorney is leading the investigation.


Modern Trojan Horse of Asbestos Surprises City of Troy

Yet another municipality is suffering the financial and liability impact of an unplanned asbestos release and abatement related to a demolition or development project. A criminal investigation into the release is being conducted by the DEC and EPA. In addition, the demolition property has been posted by the NYS Department of Labor (which oversees asbestos abatement and permits) and all demolition and cleanup work ceased as officials took samples.


NY Forest Rangers 2013 Annual Report Includes Enforcement Data

The Forest Rangers are one of the two police agencies operating within DEC. While the Rangers are best known for fire-fighting and rescue work on state lands, they still have significant enforcement responsibilities on state lands including Navigation Law and VTL enforcement (see, arrest and ticket summary on p. 48 of the Annual Report).


Nitrogen Pollution Impacts NY Coastal Wetlands

DEC recently released a report illustrating the harmful impacts of nitrogen pollution on Long Island's salt water wetlands and other waterways. Sewage and septic wastes account for most of the nitrogen loading noted in the report. Increased regulatory efforts to reduce nitrogen releases are likely. The complete report entitled "Nitrogen Pollution and Adverse Impacts on Resilient Tidal Marshlands," is available on the DEC website.


Enforcement People in the News

John Cahill, Former DEC Commissioner Runs for AG

John Cahill, the Chief of Staff to former Governor George Pataki has announced that he will challenge incumbent AG Eric Schneiderman in the 2014 elections. But, he is best remembered in the environmental community as the former DEC Commissioner and the past General Counsel of that agency during the Pataki administration.


DEC Staff Changes

Eugene ("Gene") Kelly, the longtime DEC Region 4 Director will be leaving DEC by mid-May. Gene has served with distinction in many positions with DEC and the Attorney General's office in his more than 20 years of government service.

Alison Crocker left counsel's office at DEC after many years to become the Chief of the Real Property Bureau in in the Attorney General's office. Alison has held many management positions with the DEC including as the agency's General Counsel.

Finally, Timothy Duffy has been appointed as the DEC Director of the Division of Law Enforcement as the department's chief law enforcement officer. He has also served the agency for many years in a number of law enforcement capacities around the state.


NYC Recycling Czar Moves On

Ron Gonen, the city's deputy commissioner of sanitation, recycling, and sustainability during the Bloomberg administration, is leaving the de Blasio administration to run a $100 million recycling fund.


State and Local Enforcement

Town Fined For Unreported Landfill Leachate

The Town of Colonie was assessed a $6,000 civil penalty by the DEC for the failure to report permit violating leachate levels in a retention pond. The permit requires that leachate leaks run below 20 gallons a day over a 30-day average. However, by contractual arrangement the private landfill operator will pay the penalty rather than the Town.


Surfs Up for Illegal Surf Clam Diggers

Three men were charged by the Nassau County District Attorney with illegally harvesting undersized surf clams. Under ECL Article 13, it can be a crime to illegally take, possess, sell and traffic in undersize Atlantic Ocean surf clams. DEC Conservation Officers led the criminal investigation.


Federal Enforcement

U.S. v. Cemex Concretos, Inc. et al. (U.S. District Court for Puerto Rico)

Defendants entered into a federal consent decree under the Clean Water Act ("CWA"), 33 U.S.C. § 1319(b), for allegedly violating CWA Section 402(p), 33 U.S.C. § 1342(p), for violations of a Multi-Sector General Permit for unauthorized storm water discharges at 19 industrial facilities in Puerto Rico. Defendants denied liability but agreed to pay a civil penalty of $360,000.00 and to undertake a compliance plan. Defendants also agreed to undertake a Supplemental Environmental Project by donating 401 acres valued at approximately 2.5 million dollars to the Puerto Rico Department of Natural and Environmental Resources for conservation purposes. Defendants are in the cement business.


Organized Crime Defendants Sentenced for Attempted Control of the Carting Industry (SDNY)

The U.S. Attorney's office for the Southern District of New York continues its ongoing multi-defendant (Carmine, Sarcinella, and Cali) prosecution against an organized crime conspiracy to control the New York-area carting industry. Four more defendants were sentenced to between 5 months and 18 months for various crimes associated with the unlawful enterprise.


Last of Nine Convicted for CAA Criminal Asbestos Abatement (WDNY)

Defendants (Johnson, Manuszewski, and Towers) were involved in various capacities with the asbestos abatement of multiple residential apartment towers. Intentional CAA violations included numerous unsafe ACM handling and abatement procedures.


Selected OSHA/NYSDOL Violations

NYSDOL Administrative Asbestos Decisions

The Commissioner accepted the hearing Report and Recommendation of the Hearing Officer and issued an Order assessing a $9,000 civil penalty for various asbestos abatement violations of Labor Law Article 30 or Industrial Code Rule 56 ("12 NYCRR § 56") at multiple sites. Violations included failure to maintain negative pressure, containment and incidental disturbance of asbestos containing materials ("ACM"). Note that NY Labor Law § 909 (1) (b) provides for the assessment of a civil penalty only of not more than the greater of 25% of the monetary value of the contract upon which the violation was found to have occurred, or $5,000.00 per violation. Previous NYSDOL administrative asbestos decisions may also be found on the NYSDOL website.


DEC Region 4 Administrative Orders

In the Matter of Mallinckrodt LLC
Order on Consent
R4-2014-0319-77, 5/1/14

Respondent was held to be in violation of more than one dozen hazardous waste handling, storage and paper work violations and was assessed a civil penalty of $7,499.00 (far below the potential legal maximum of $37,500, per violation allowed as per ECL Section 71-2705(1). Violations included:
6 NYCRR Part 372.2(b)(2)(ii) - hazardous waste manifest errors;
6 NYCRR Part 372.2(a)(8)(i)(a) - open or unlabeled hazardous waste containers;
6 NYCRR Part 372.2(a)(8)(ii) - unauthorized hazardous waste storage over 90 days;
6 NYCRR Part 373-3.9(f) - failure to post no smoking signs;
6 NYCRR Part 373-3.4(c) - incomplete contingency plan.


DEC Administrative Enforcement Orders, Decisions and Rulings

It is always worth noting that NYSDEC Region 4 is currently the only DEC Regional office that regularly posts all administrative enforcement consent orders and settlements. However, this data can be a useful window into the agency's enforcement policies statewide.


In the Matter of U.S. Energy Development Corporation
Ruling of the Chief Administrative Law Judge
File No. R9-20111104-150, 5/9/14

The discovery in this case of alleged interstate stream pollution continues to grind on. Previously, the Chief ALJ had held that only the ALJ had the authority to issue subpoenas pursuant to 6 NYCRR Part 622, to employees of state agencies other than DEC. Here, Respondent's motion for leave to conduct depositions of OPR & HP (Parks) staff was denied in its entirety because the Respondent made, "no compelling argument supporting the conclusion that use of depositions is necessary to further evaluate staff's case and prepare a defense."


Weird News

NY "Gets Medieval on Your [fill in the blank]"

Crossbows are now legal in New York State for hunting although subject to a myriad of conditions and restrictions. (paraphrase attributed to "Pulp Fiction," the Quentin Tarantino movie).


Talk About Being Stunned in Court!

An attorney introduced an electrifying new technique into the court room.


More on China's Air Pollution

Sadly, Chinese traffic cops now must hunt for semi-banned super high emission vehicles on their hazy smog riddled byways and highways.

_____________________________________________________________________________________________________________________

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.

NY Environmental Enforcement Update Annual Report for 2013


The Environmental Law Section of the New York State Bar Association has published an E-Book entitled "NY Environmental Enforcement Update 2013 Annual Report."

It is a compilation of the monthly 2013 NY Environmental Enforcement Update blogs previously posted in "Envirosphere'" the Section's blog and can be found on the ELS website (click on title in the left margin menu) at http://www.nysba.org/Environmental/ or directly at http://www.nysba.org/Sections/Environmental/NY_Environmental_Enforcement_Update_2013_Annual_Report.html.

The E-Book is free to NYSBA members and the public.

June 16, 2014

Environmental Legislation Forum Focuses on NY Oil Transportation


By John Louis Parker and Jillian Kasow, Co-Chairs, Committee on Legislation

On May 14, 2014, the Environmental Section held a successful and well-attended annual Legislative Forum and Luncheon. The Great Hall at New York State Bar Center, located at One Elk Street in Albany, was filled with an audience and participants from as far afield as Washington, D.C. The program commenced with a presentation by members of the environmental leadership of the New York State Assembly and Senate on priority legislative topics for this year's session. Among the legislative topics were discussions of the upcoming sunset provisions of the brownfields program, a ban on microbeads from various products to prevent them from being discharged into state waterways, the reduction of harmful flame retardant chemicals in furniture, the capping of greenhouse gas emissions, a "cradle to grave" approach to green purchasing, and a pilot program for disposing of prescription drugs.

Industry representatives, business representatives, and environmental advocates then convened on a panel to discuss challenges facing the Empire State involving oil transportation from the mid-western United States through the Port of Albany by rail and then down the Hudson River by barge. The set of issues involves a complex overlay of federal and state rules, regulations, and laws.

The United States Geological Survey conservatively estimates that there are over 7.4 billion gallons of oil under the fields of North Dakota and Montana. These previously unreachable Bakken crude reserves are now accessible via hydraulic fracturing and horizontal drilling. The oil production in North Dakota has dramatically changed the social, environmental, and economic landscape of that state, leaving it one of the largest oil producers in the United States. Despite a minor pipeline north to Canada, the lack of adequate infrastructure has resulted in the majority of the oil being transported via rail and barge to refineries and markets. Bakken crude has a lower flashpoint and is thus susceptible to disastrous consequences should derailments or accidents occur, as demonstrated by the loss of 37 lives in Canada and a significant oil spill in Virginia. In addition, whether or not the XL Pipeline is constructed for the movement of tar sands from Canada, the oil transport through Albany may be part of the system used to move that oil to market. Currently, the Port of Albany handles approximately 40,000 carloads of oil per year and is authorized for up to 2.8 billion gallons in total. In response to several oil incidents, Governor Andrew Cuomo's Executive Order # 125 required a number of State agencies to produce a report on incident prevention and response capacity in the State by April 30, 2014.

The panelists discussed a variety of issues, including: the potentially significant negative environmental impacts of oil transport and the need for full SEQRA review of any proposal, the low incident of railway spills, the need for an updated and modernized train and rail system, the greenhouse gases that are flared off into the atmosphere as part of the extraction process, the need for Environmental Protection Agency and other federal agency involvement, the complication of federal pre-emption issues in relation to train regulation and the limited ability for state regulation, and the economic benefits of the United States becoming one of the largest oil producers in the world.

The program concluded with the Executive Deputy Commissioner of DEC, Marc Gerstman, discussing a number of initiatives underway at the Department, including the new Self Audit Policy, efforts to reduce transactional costs, brownfields reform, and efforts to streamline agency operations. Finally, the discussion focused on a number of actions the State has taken, including its Interim Negative Declaration under SEQRA on an oil transport facility permit in the Port of Albany, a number of initiatives being undertaken to better understand the challenges of oil transport through New York including expediting State agency response, and the primary role of the federal government in the regulatory process.

A special thanks to NYSBA association team, participants, and attendees of the event.

John Parker and Jillian Kasow, Co-Chairs, Committee on Legislation

June 7, 2014

NY Environmental Enforcement Update April 2014, #16


By Michael J. Lesser, Environmental Law Section, NYSBA © 2014

Enforcement News

US Supreme Ct. Upholds EPA Interstate Air Pollution Regulation

The Supreme Court reversed the ruling of the Court of Appeals, and upheld the Clean Air Act's "good-neighbor" provision which requires EPA to regulate air pollution from power plants in upwind states when that air pollution impacts downwind states. The Supreme Court further held that EPA's approach to determining each state's relative responsibility for reducing such pollution was a permissible one under the Clean Air Act. NY Attorney General Schneiderman actively supported the EPA position along with other "downwind" states.


Record Settlement in Tronox Fraudulent Conveyance Bankruptcy Case

The US entered into a settlement agreement with the Kerr-McGee Corporation and related entities, in a fraudulent conveyance case brought in the bankruptcy of Tronox Inc. and its subsidiaries ("Tronox"). In December 2013, the Court ruled that historic Kerr-McGee Corporation ("Old Kerr-McGee") fraudulently conveyed assets to New Kerr-McGee to evade its debts, including its liability for environmental clean-up at contaminated sites around the country. Pursuant to the settlement agreement, the defendants agree to pay $5.15 billion to settle the case, of which approximately $4.4 billion will be paid to fund environmental clean-up and for environmental claims. This is reputedly the largest environmental settlement in a contamination case. At least one former Kerr-McGee settlement site is in NY.


Mayor De Blasio Proposes Major Updates to the NYC Air Code

New York City's proposed the most significant changes in the City's Air Pollution Control Code since 1975. The proposed revisions will update emission standards and focus on pollution sources that currently have little or no emission control requirements including: particulate matter generated by commercial char broilers, fireplaces, food trucks, and refrigeration vehicles. The New York City Council Committee on Environmental Protection will hold a hearing in the near future to codify the revisions to the Air Code.


Adirondack Park Agency ("APA") Releases FY 2013 Report

The APA, a significant state environmental agency, has issued its annual report for 2013. In particular, see pp. 12-13, for the report's legal and enforcement summaries.


USDOJ Announces FY 2013 Report and Accomplishments

The Justice Department's Environment and Natural Resources Division (ENRD) released its Fiscal Year (FY) 2013 Accomplishments Report, detailing its work to enforce environmental and wildlife laws.


Haz. Waste Crack Down on Retail Chains Continues (Alameda Co. Superior Court)

In a California civil prosecution of interest, Lowe's Home Centers LLC will pay $18.1 million to resolve a civil enforcement action alleging that more than 118 of its California stores illegally handled and disposed of hazardous waste over a six-and-a-half-year period, according to the California's Department of Toxic Substances Control. Lowe's illegally disposed of hazardous waste, including pesticides, batteries, fluorescent bulbs and other toxic materials. The chain stores routinely sent items such as spilled or returned paint or damaged batteries to local landfills that were not permitted to receive the materials. Similar enforcement initiatives against chain retailers have been gradually appearing in New York (Note: see another Lowe's settlement below).


Lowe's Settles Violations for Lead Generated by Home Renovations (U.S. District Ct. for the Southern District of Illinois)

Lowe's Home Centers has agreed to implement a comprehensive, corporate-wide compliance program at more than 1,700 stores nationwide (including New York) to ensure its contractors minimize lead dust from home renovation activities, as required by the federal Lead Renovation, Repair and Painting (RRP) Rule. The company will also pay a $500,000 civil penalty, which is the largest ever for violations of the RRP Rule, as part of the settlement.

The RRP Rule, which implements the federal Toxic Substances Control Act (TSCA), is intended to ensure that owners and occupants of housing built before 1978, receive information on lead-based paint hazards before renovations begin, and that renovators are properly trained and certified by EPA. Recently, EPA has conducted a nationwide crackdown for RRP violations.


2014-2015 NYS Environmental Budget News

The legislative highlights (and lowlights) of the 2014 NYS environmental budget items include: An increase of the Environmental Protection Fund to $162 million, which is a $9 million increase from 2013 (but still less than requested by the Assembly and Senate; State Parks (NYSOPR &HP) receiving $92.5 million in additional capital funds; and, the failure of the Assembly, Senate and the Governor to reach consensus on Brownfield Cleanup Program reforms and funding the Brownfield Opportunity Areas (BOA) program. BCP negotiations will continue for the rest of the 2014 legislative session.


Need A Summer Read?

Try "The Rule of Nobody, Saving America from Dead Laws and Broken Government," Philip K. Howard, WW Norton & Company.


Enforcement People in the News

NYSDOH Commissioner Nirav Shah Resigns Suddenly

State Health Commissioner Dr. Nirav Shah is leaving his post to become senior vice president and chief operating officer for clinical operations for the southern California region of the Kaiser Foundation Health Plan. Dr. Howard Zucker will assume his duties as Acting Commissioner. He formerly worked as a professor of anesthesiology at Albert Einstein College of Medicine. The impact on the progress (or lack thereof) of the DOH's endless review of natural gas horizontal hydraulic fracturing or fracking is unknown.


DEC ECO Kinney Named Officer of the Year

The National Wild Turkey Federation (NWTF) has named Environmental Conservation Officer (ECO) Jerry Kinney, "2013 New York Officer of the Year." NWTF is an international grassroots, non-profit organization that supports scientific wildlife management and wild turkey hunting. NWTF annually recognizes an officer who has demonstrated outstanding service and contributed significantly to conservation law enforcement.


DEC ECO Grisolini Inducted into Hall of Fame

The New York State Outdoorsmen Hall of Fame (NYSOHOF) presented Environmental Conservation Officer (ECO) Ricardo Grisolini with the "Dave Pierce Memorial Award" which recognizes an individual involved in conservation who has worked closely with youth.


Federal Enforcement

CAA False Statement Conviction (WDNY)

A defendant pleaded guilty to being an accessory after the fact to a false statement under the Clean Air Act. The charge carries a maximum penalty of one year in prison, a fine of $125,000 or both. Defendant was employed as an air sampling technician and a project monitor, and was certified by the New York State Department of Health to conduct asbestos project monitor and air sampling duties. During an abatement project, the defendant colluded with others to falsify the status of asbestos removal in records required under the Clean Air Act (CAA).


Virgin Islands Enters Agreement for Clean Air Act Compliance
(U.S. District Ct. for the U.S. Virgin Islands)

Under a civil enforcement agreement with EPA Region 2, and the USDOJ, the Virgin Islands Water and Power Authority (VIWAPA) entered an agreement to comply with the federal Clean Air Act (CAA) for the Estate Richmond Generating Facility on St. Croix. Compliance will reduce nitrogen oxides (NOx) and particulate matter (PM) emissions. VIWAPA has already spent approximately $4 million to come into compliance with pollution control requirements and will spend at least $2 million more per year to maintain compliance. VIWAPA will also pay a $700,000 civil penalty as part of the agreement.


Fishy Pair Plead Guilty to Fluke Fraud, and Records Falsification (EDNY)

In related pleas, a commercial fish dealer and a fisherman pleaded guilty for systematically under-reporting fluke (summer flounder) harvests as part of a federal Research Set-Aside (RSA) conservation program. The defendants falsified hundreds of records from 2009 to 2011, as part of a scheme to sell illegally harvested fluke. Each will be subject to fines and restitution in excess of $500,000.00 (final totals to be determined).


OSHA/NYSDOL Report

Hazardous Explosive Dust in New Windsor, NY

A manufacturer of cabinets and countertops was cited by OSHA for 13 serious violations of workplace health and safety standards. A serious violation occurs when there is substantial probability that death or serious physical harm could result from a hazard about which the employer knew or should have known.

Combustible dust was found on plant pipes, equipment, supports and ductwork. In addition, while spraying adhesives on countertops and molding during the manufacturing process, employees were overexposed to the hazardous chemical methylene chloride. OSHA proposed fines totaling $51,800.


DEC Region 4 Administrative Orders

It was obviously hazardous waste enforcement month at this DEC office. What these light industry facilities appear to have in common was an EPA identification number and their lack of understanding about the minutia of the state and federal hazardous waste regulatory scheme. Despite, the high maximum penalties allowed under ECL Section 71-2705(1)[$37,500, per violation], DEC was quite reasonable in its overall penalty calculations. It is always worth noting that DEC Region 4 is the only DEC Region that regularly releases administrative consent orders. Thus, that office gives at least a limited window into actual DEC enforcement policies.


In the Matter of SUNY Oneonta
Order on Consent, 4/28/14
File No. R4-2014-0219-25

Respondent was ordered to pay a civil penalty of $5,499.00, for eight violations of the hazardous waste regulations including the failure to:

- To make waste determination - 6 NYCRR 372.2(a)(2);
- To properly mark or close hazardous waste containers - 6 NYCRR 372.2(a)(8)(i)(a)(2);
- To have a TSDF designated in writing - 6 NYCRR 372(b)(2)(i);
- To have a transporter designated in writing - 6 NYCRR 372.2(b)(2)(iii);
- To have a written job descriptions for the staff - 6 NYCRRR 373-3.2(g)(4)(ii);
- To have a documented training program - 6 NYCRR 373-3.2(g)(1)(ii);
- To maintain training records - 6 NYCRR 373-3.2(g)(5); and,
- To maintain a contingency plan - 6 NYCRR 373-3.4(c)(5).


In the Matter of Electro Fiber Technologies
Order on Consent, 4/21/14
File No. R4-2014-0313-73

Respondent was ordered to pay the odd civil penalty amount of $3,248.00 for miscellaneous hazardous waste regulatory violations including failures to:
- Properly mark accumulation dates on hazardous waste drums - 6 NYCRR 372.2(a)(8)(ii)(2);
- Have a closure plan - 6 NYCRR 373-1.1(d)(1)(iii) and (iv);
- Properly prepare a hazardous waste manifest - 6 NYCRR 372.2(b)(2)(ii);
- Have a written TSDF authorization - 6 NYCRR 372(b)(2)(i);
- Have a written transporter authorization - 6 NYCRR 372.2(b)(2)(iii);
- Have a written job descriptions for hazardous waste management staff - 6 NYCRRR 373-3.2(g)(4)(ii);
- Have a complete contingency plan - 6 NYCRRR 373-3.2(g)(4)(ii); and,
- Properly prepare a required notice for a hazardous waste shipment -
6 NYCRR 376.1(g)(1)(ii).


In the Matter of Tecta American Weather Guard, LLC
Order on Consent, 4/2/14
File No. R4-2013-0120-12


Respondent was ordered to pay a civil penalty of $5,000.00, for: failure to make a determination that piles of ignitable solid waste stored at its facility were D001 hazardous waste in violation of 6 NYCRR Part 371.1(f)(7)(i) and 6 NYCRR Part 372.2(a)(2); and storage of greater than 1,000 kilograms of non-acute- hazardous waste without a permit is a violation of 6 NYCRR 371.1(f) (7) (ii).


DEC Administrative Enforcement Orders, Decisions and Rulings

In the Matter of Strano Freddy, Joe Stancampiano, and John Dunsmoor
Order of Disposition
DEC Proceeding No. OHMS 67612, 4/29/14

This case is example of an attempt to use the Department's rarely invoked eminent domain powers. Here, DEC was presented with a petition pursuant to ECL 15-1983, which sought to allow the owner of agricultural lands to attain an easement or right of way over another person's property for drainage purposes. In such cases the Department may use the procedures consistent with the Eminent Domain Procedure Law (EDPL) to make a determination as to whether eminent domain is necessary for the drainage of the petitioner's land. If applicable, the Department may then assess the amount of compensation due from the petitioner to the affected landowners.

However, the parties settled their dispute regarding the maintenance of a clogged drainage ditch and the matter was dismissed by the Office of Hearings. But, the dismissal order does outline the history of an obscure and unusual part of the ECL and the state's land use enforcement practices.


In the Matter of Supreme Energy Corporation, Supreme Energy, LLC and Frederick Karam
DEC Case No. 7-1780
Decision and Order, 4/11/14

This lengthy, meandering and sometimes acrimonious case took almost seven years to reach a conclusion as the Hearings Office and the litigants wrestled with numerous evidentiary, discovery and legal issues. In the end, the Commissioner held that Respondents failed: to obtain a MOSF license in violation of Navigation Law § 174(1)(a); to maintain adequate secondary containment at the facility, in violation of Navigation Law § 174(3); and, to pay license fees and surcharges on barrels of petroleum product transferred to the facility, in violation of Navigation Law § 174. However, the import of this Order lies in the combination of high penalties and the application of joint and several liability to the individual corporate officer respondent. Specifically, the Order analyzes and applies the doctrines of corporate veil piercing and responsible corporate officer liability.

Overall, the Respondents were jointly and severally assessed a total civil penalty of $1,269,517, including: $234,900, for the failure to obtain the MOSF license; $469,800, for the failure to maintain adequate secondary containment; and $564,817, for the failure to pay license fees and surcharges plus an additional 1% fee on nonpayment of monthly license fees and surcharges pursuant to Navigation Law §§ 174(7) and 192.


Weird News

Toxic Water Supply Panics Chinese City

This is yet another cautionary environmental tale from over-industrialized China.


First Cow Tipping, Now Smart Car Flipping

Why?


NY is Not Hog Heaven

DEC formally adopted a new regulation that prohibits hunting or trapping of free-ranging Eurasian boars. This follows recent new legislation on the subject. New York's own version of the boar war continues.


Pirates Invade the Bronx! ("Radio Pirates," that is)(SDNY)

The US Attorney and the FCC continue to crack down on New York's illegal "pirate" radio stations (operated with the willful and knowing intent to broadcast without an FCC license). Note: the Update has previously reported on the enforcement war being waged against the pirates of the air waves.

May 11, 2014

NY Environmental Enforcement Update March 2014, #15


By Michael J. Lesser, Environmental Law Section, NYSBA © 2014

Enforcement News

Tonawanda Coke Sentenced for CAA-RCRA Criminal Fine (WDNY)

Tonawanda Coke Corporation was sentenced to pay a $12.5 million penalty and $12.2 million in community service payments for criminal violations of the Clean Air Act (CAA) and the Resource Conservation and Recovery Act (RCRA). The sentence followed a conviction in March 2013 on 11 counts of violating the CAA and three counts of violating the RCRA. The facility's Environmental Control Manager was sentenced to one year in prison, 100 hours of community service, and a $20,000 fine for 11 counts of violating the CAA, one count of obstruction of justice and three counts of violating the RCRA.


SI Group Fined Again for Pollution Violations (R4)

A Rotterdam, NY chemical manufacturer is paying its fourth state pollution fine in three years to the DEC. A $75,000 civil penalty was assessed with $10,000 suspended for water pollution releases to the Mohawk River as well as violations of SPDES and RCRA permits and the failure to timely report a hazardous substance release as per 6 NYCRR Part 595.4(a). Since March 2011, SI has been assessed a cumulative $275,000.00, for various water and air pollution violations at its main plant in Rotterdam. The Order on Consent is available online (see In the Matter of SI Group, No. R4-2014-0131, 3/19/14).


Adirondack Park Agency - 2013 Legal Division Annual Report

The APA Annual Report including 2013 enforcement statistics is now available via the APA web site.


Proposed Part 570 LNG Public Hearing Summary Issued

In the Matter of Part 570 (Liquified Natural Gas), the Hearing Report regarding the DEC proposal to establish a NY permitting program for the safe siting, construction, and operation of liquefied natural gas ("LNG") facilities and transportation of LNG, is now available.


Enforcement People in the News

Environmental Bar Loses Pioneer David Sive

The Environmental Law Section extends its condolences on the passing of David Sive to his family, friends and many colleagues. David's contributions to our profession are too lengthy to be listed here. Among his many accomplishments, he was a founder and significant contributor to the Environmental Law Section. His experience and wise counsel will be missed by all.


Steve Tambini, New Executive Director of Delaware River Basin Commission (DRBC)

Mr. Tambini, an experienced civil and environmental engineer, will be only the fourth executive director in the DRBC's 53-year history. The commission is represented by the basin states (Del., N.J., N.Y., and Pa.) and the U.S. Army Corps of Engineers' North Atlantic Division.


State and Local Enforcement

Illegal Tree Toppers to PAY for the View!

The NY Attorney General announced a court-ordered settlement that requires a Yonkers-based tree service to pay sanctions valued at $64,000 for illegally entering a State park in Westchester County and removing the tops of approximately 34 trees. Three private landowners who hired the tree trimmers to improve their views of the Hudson River (previously blocked by the trees in question) are contributing $24,000 toward this settlement. The company had previously been held liable in 2012 in Westchester Supreme Court for illegal entry into the park, unauthorized tree cutting in violation of NY environmental and public land laws, as well as for common law trespass.


Dead Bird Dumpers Nabbed

Two defendants were issued tickets by DEC for the illegal disposal of approximately 200 dead game birds on private land. The birds were the unused left-overs from a dinner held by a local bow hunting club. But, because the birds were legally harvested, the pair was cited for the illegal disposal of solid wastes as per 6 NYCRR Part 360, rather than a fish and wildlife violation.


Western NY Man Charged with 190 Alleged Wildlife Violations

The DEC and the US Fish & Wildlife Service executed a criminal search warrant against an individual that was alleged to be in unlawful possession of numerous live turtles and birds of prey among many other live animals and animal parts. Federal prosecution is pending for the illegal possession of bald and golden eagle parts. Defendant is a taxidermist.


Federal Criminal and Civil Enforcement

Feds File Suit for UST Violations (EDNY)

A federal civil RCRA complaint has been filed against two individuals and 15 related corporate entities for violations of the federal leak prevention requirements for underground storage tanks at four gas stations on Long Island as mandated under the RCRA. This prosecution may mark a new trend as the underlying violations are usually prosecuted under state rather than federal law.


Operators Foul Up Water System in SDWA Action (SDNY)

Defendants operated a public water system serving a development in Deerpark, Orange County and admitted to violations of the Safe Drinking Water Act ("SDWA") by failing to monitor and treat water, make reports, take corrective action, and maintain a certified operator. The defendants agreed: to provide the Government with a lien on property in the amount of $50,000; to turn over all records relating to the water utility to new operators; and to never again own or operate a public water system. The deficiencies led to "boil water" orders for water consumers among other problems.


Bankrupt Kodak Reaches CERCLA and RCRA Bankruptcy Settlement (SDNY)

The bankrupt Eastman Kodak Corporation entered three settlements in Chapter 11 proceeding resolving serious environmental liabilities incurred under various federal environmental laws at several Kodak locations. Kodak will fund a $49 million trust for clean-up at the Eastman Business Park site and the Genesee River. DEC also agrees to fund any additional costs of clean-up between $49 million and $99 million and Kodak and DEC each agreed to pay half of any costs above $99 million. Historically, Kodak commenced industrial operations at some of these sites in the late 19th century.


Selected OSHA/NYSDOL Violations

Hazardous Chemical Exposure Violations

Diversified CPC International Inc. was cited by OSHA for 15 serious violations of the process safety management standard at the chemical manufacturer's Sparta, NJ production facility. The company faces $73,500 in proposed penalties for exposing workers to hazardous chemical risks. The majority of the violations relate to potential hazards stemming from the use of liquefied petroleum gases, fluorocarbons and dimethyl ether.


DEC Region 4 Administrative Orders

It is always worth noting that NYSDEC Region 4 is currently the only DEC Regional office that regularly posts all administrative enforcement consent orders and settlements. However, this data can be a useful window into the agency's enforcement policies statewide.


In the Matter of SI Group, Order, R4-2014-0131-17, 3/19/14 (see Enforcement News above)


In the Matter of St. Mary's Healthcare Order, R4-2014-0115-5, 3/25/14

Respondent failed to make a hazardous waste determination for generated wastes including: Lindane soap; used Nicotine patches; and packing material for the drugs Nicotine and Warfarin, in violation of 6 NYCRR Part 372.2(a)(2). Respondent had been disposing of the wastes with its regular commercial trash and was assessed a civil penalty of $7,999.00 with $6,400 payable and the rest suspended. This is another example of a non-industrial commercial operator that may not be aware that its business practices invoke state and federal hazardous waste regulation.


DEC Administrative Decisions and Orders

In the Matter of Best Alignment Auto Repair, Inc., and Mohamed C. Diallo
Order, 3/20/14
DEC Case No. CO2-20100615-29

Respondent violated onboard diagnostics (OBD) standards and 6 NYCRR 217-4.2 by operating an official emissions inspection station using equipment and procedures not in compliance with Department procedures and standards for 128 vehicle inspections using noncompliant equipment and procedures and was assessed a civil penalty of $30,000.


In the Matter of Fordham Road Concrete Corp., and Arthur George Reis
Ruling, 3/4/14
R2-20130930-432

In an interim ruling, the ALJ again demonstrated the limits of a Department Motion for an Order without Hearing (6 NYCRR Part 622.12) by applying the summary judgment standard and concluding that staff's motion must, in large part, be denied because of issues if fact raised by Respondent. DEC had commenced an action for numerous petroleum discharge and PBS violations. A number of violations remain to be adjudicated and a final hearing report will combine the results of this Ruling and future findings for all violations.


In the Matter of Anderson, George and Douglas Anderson
Order, 3/6/14
DEC Case No. R9-20110922-36

The Commissioner granted staff's motion for a 6 NYCRR Part 622.12 Order without hearing and held Respondents jointly and severally, to have violated ECL Part 23-2711(1) by mining without the required ECL permit. Upon review of the Department's Civil Penalty Policy DEE-1, the Commissioner raised the assessed civil penalty from $50,000 (the ALJ's recommendation) to $80,000, due to the severity of the violation and past history of non-cooperation among other factors. Respondent was also ordered to either submit a permit application or cease mining and undertake reclamation.


In the Matter of Bardin, Cindy A.
Order, 3/5/14
DEC Case No. OHMS 2013-68159

This Administrative Order follows a court ordered administrative hearing following a denial of a licensee's application to renew two special fish and wildlife licenses issued by the DEC Division of Fish, Wildlife & Marine Resources (DFWMR) issued in accordance with Article 11 of the ECL.

The DFWMR Director had denied the renewal requests by letter, citing noncompliance with: the license conditions; a previous consent order; and violations of the ECL. The licensee then sought relief via a CPLR Article 78, after the DEC denied a request for a hearing. Note: neither the ECL nor DEC regulations provide for a hearing for the denial of a license renewal in this license category.

The Supreme Court agreed that no statutory or regulatory provision requires a hearing to under these circumstances. However, the Court "analogized the facts in this case to those involving revocation of a license," and then held that a hearing must be held as a matter of due process. (see Matter of Bardin , Sup Ct, Washington County, March 8, 2013, Pritzker, J., Index No. 19481).

Subsequent to the Hearing, the Commissioner still upheld the original denial of the requests to renew the licenses. The former licensee had held licenses to possess wild animals including mountain lions and tigers and bears (Oh my!).


In the Matter of Ash, Jeffrey
Order, 3/5/14
DEC CASE No. OHMS 2013-68434

In a special license renewal denial situation similar to the Bardin hearing (above), the licensee also commenced a CPLR Article 78 to challenge the denial and seek a hearing not offered by law. However, here the licensee and the DEC entered into an Order of Settlement discontinuing the Article 78, and compelling an administrative hearing on the denial. Regardless, the outcome of the Hearing was the same as in the Bardin matter as the Commissioner upheld the original denial due to various dangerous incidents involving the former licensee's possession of wild animals, including bears.


In the Matter of Mahopac Scrap and Recycling Inc., and William R. Boyar, Sr.
Order, 3/5/14
DEC Case No. CO 3-20111215-13

Respondent owner-operator, but not the dissolved corporation, was held to have violated 6 NYCRR 360-12.2(d) and assessed a $5,000 for failure to file an annual report for calendar year 2010 for the a solid waste management facility at 205 Myrtle Avenue, Mahopac Falls, New York.


Weird News

Banning Electric Car Stores

Electric car manufacturer Tesla favors stores or mall kiosks to retail its electric cars. Such operations are much cheaper and faster to establish and do not require extensive inventory, parts and service departments or a large lot and building to contain all of those components. Several states have already banned Tesla style retail stores at the behest of the auto dealership industry (which is compelled to maintain all of the overhead that Tesla does not). The New York's legislature was also weighing such a legal ban despite the state's commitment to the reduction of greenhouse gases. But, at press time, state leaders and lobbyists may have reached a compromise to allow Tesla to retain its five existing NY retail stores. The Update will continue to follow this matter.


Cow Flatulence on the Greenhouse Gas Reduction Agenda

We all knew this was coming. Peeeyew!
_____________________________________________________________________________________________________________________

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.

April 14, 2014

Redefining Brownfield Cleanup


Though the State's $140 billion budget was enacted without proposed brownfield cleanup reforms, Governor Cuomo and the State Senate and Assembly are continuing to discuss amending and extending New York State's Brownfield Cleanup Act. These reforms include extending tax credits, termination from the BCP for missing a cutoff date, and redefining brownfield itself. Negotiations on specifics are likely to continue, but time is running out because the current tax credits run out in 2015.

Section members David J. Freeman and Lawrence Schnapf have more in a recent article on the topic published in the New York Law Journal.

April 13, 2014

NY Environmental Enforcement Update February 2014, #14


By Michael J. Lesser, Environmental Law Section, NYSBA © 2014


Enforcement News for February

DEC Proposes Environmental Monitor Policy

DEC proposed the first changes in its monitoring policy since 1992. The 60-Day Comment Period Runs to April 14, 2014. The use of Monitors has been periodically criticized as unfair and burdensome to regulated entities since its inception.

The four proposed criteria to determine the need for a monitor are where:
- environmental monitoring is required by law,
- the material at the site is a concern due to its characteristics or quantity,
- there are concerns with the compliance history or past practices of the regulated entity,
- DEC determines the regulated facility, site or activity needs additional oversight.

Proposed monitoring services will be provided by qualified:
- DEC employees who operate under DEC supervision;
- individuals who are employed by another governmental agency approved by DEC, operating under DEC supervision;
- entities whose services are directly contracted by DEC, operating under DEC supervision; and
- entities whose services are directly contracted by the regulated entity, subject to DEC's initial and continued right of approval, operating under DEC supervision.


NYCDEP Dry Cleaner Disclosure Rule Takes Effect

A new rule promulgated by the New York City Department of Environmental Protection (NYCDEP) took effect requiring the City's approximately 1,400 dry cleaners to post signs disclosing the primary chemicals used in the dry cleaning process. The signs are to list information including the chemicals and a link to information about their potential health effects.


Texas Fracking and Air Pollution Enforcement

While controversial authorized hydraulic fracturing, or "fracking," will not happen in NY before 2015 (at the earliest), it is worth noting that fracking derived air emission regulation and enforcement are significant issues in Texas' Eagle Ford Shale region.


Costco to Pay $60k for Selling Banned Pesticides

The Costco Wholesale Corporation will pay a civil penalty of $60,000 after a NYSDEC investigation revealed that the company sold banned pesticides which are specifically banned from sale on Long Island. The bans are especially relevant for the protection of Long Island's sole source aquifer. The company was also ordered to remove the pesticides at issue from all its stores throughout the region and to issue a recall notice to its member shoppers. If there were any doubts about the violation, the product's label literally read, "Not for sale, sale into, distribution and or use in Nassau, Suffolk, Kings and Queens counties of New York" (emphasis added). The penalty level was partially determined by the number of banned product containers in stock in Costco's stores (over 1,000 containers were estimated).


Enforcement People in the News

Emily Lloyd Re-appointed NYCDEP Commissioner

Ms. Lloyd returns to her old position as NYCDEP Commissioner in the new de Blasio administration after originally serving in that post from 2005 to 2009. Previously, she also served as the New York City Department of Sanitation Commissioner from 1992 to 1994.


Federal Criminal and Civil Enforcement

Operation Crash Slams More Alleged Rhino Horn Smugglers (SDNY)

This federal investigation continues to expose the international criminal conspiracy to smuggle ivory which based on these indictments allegedly stretches to Hong Kong and the Chinese mainland. Here, one of the defendants also allegedly tried to bribe a federal agent.


SPECIAL FEATURE: Selected OSHA/NYSDOL Violations

Explosion at Syracuse Waste Water Treatment plant - Man Dies

A September 2013 explosion at the Canastota Wastewater Treatment Plant killed one worker and injured another as contractors were attempting to replace piping inside a methane gas dome in a confined space. One contractor was issued three serious citations with $14,700 in proposed fines. The other was issued seven serious citations with $31,020 in fines. A serious violation occurs when there is substantial probability that death or serious physical harm could result from a hazard about which the employer knew or should have known.


DEC Region 4 Administrative Orders

It is always worth noting that NYSDEC Region 4 is currently the only DEC Regional office that regularly posts all administrative enforcement consent orders and settlements. However, this data can be a useful window into the agency's enforcement policies statewide.


In the Matter of Village of Athens
Modification of Consent Order, February 6, 2014
R4-2001-0313-35M5

The Department lifted a moratorium on new sewer hookups and extended a compliance schedule for sewer line construction due to the Village's past performance and in deference to unavoidable cold weather delays.


In the Matter of Lowe's Home Centers
Order on Consent, February 6, 2014
R4-2013-0927-118

Respondent, a retailer, violated ECL 33-1301.1(b) by offering for sale, nine damaged containers of general use pesticides and was assessed a civil penalty of $1,000.


In the Matter of Cherry Valley-Springfield Central School District
Order on Consent, February 7, 2014
R4-2014-0110-2

Respondent municipality exceeded various SPDES permit parameter effluent limits on approximately sixty occasions in violation of the waste water treatment plant's SPDES permit and 6 NYCRR Part 750-1.4. A civil penalty of $25,313 was assessed with $5,063 payable and the balance suspended conditioned on compliance with the Order.


In the Matter of Town of Rotterdam
Order of Consent, February 25, 2014
R4-2014-0117-7

Respondent municipality violated 6 NYCRR Part 750-2.8(a)(2) by failing to maintain the above ground sewer main that was involved in two separate breaks and violated ECL Section 17-0803 when sewer main discharged untreated sewage in those incidents. A civil penalty of $2,200 was assessed.


DEC Administrative Decisions and Orders

A full listing of recent decisions can be found on the DEC website.


In the Matter of Corona Heights Trading Inc.
Order, February 20, 2014
DEC File Nos. R2-20090522-317 & R2-20090713-434

In an unusual legal repudiation, the Commissioner reversed the ALJ's report and held that a violation of an existing consent order can warrant a separate administrative penalty in addition to any unpaid or suspended penalties left over from the underlying consent order. The ALJ had originally found that the DEC was only entitled to an unpaid portion of the original payable penalty plus the suspended penalty for the violation of the Order due to a failure to remit the full payable penalty. The Commissioner disagreed and noted that the ALJ had confused the suspended penalty provision of the original order with stipulated penalties that set predetermined penalties between the parties. Based on the standard penalty criteria the Commissioner assessed an additional $5,000, for the violation of the consent order as an independent violation of ECL 71-2907(1) and ordered the payment of the remaining $10,500 combined unpaid and suspended penalty. Respondent did not appear in response to a 6 NYCRR 622.12, motion for order without hearing (granted by the Commissioner as well).


In the Matter of UNS Auto Repairs Inc., Masood H. Najmi, George E. Ampratwum, Fatai Yinusa, and Gary V. Wongbong
Order, February 6, 2014
DEC Case No. CO2-20100615-19

Respondents completed 979 onboard diagnostic (OBD) II inspections of motor vehicles using noncompliant equipment and procedures in violation of 6 NYCRR 217-4.2. OBD inspections are critical for determining a vehicle's air pollution emissions compliance and the efficient performance of major engine components. After a complex analysis based on past rulings, a combined payable civil penalty of $171,000, was assessed on a pro rata basis against various individual corporate and individual defendants. However, only $36,000 of the total was assessed against the individuals only because of the doubt cast on the legal existence of the corporate defendant.

Note: Based on prior holdings, the Commissioner continues to refuse to apply joint and several liabilities among the respondents in Part 217 OBD proceedings.


In the Matter of U.S. Energy Development Corporation
Ruling of the CALJ Further Amending Discovery Schedule, February 12, 2014
DEC File No. R9-20111104-150

This ruling modifies this actions extensive discovery schedule including the service schedule for subpoenas below in the prior Chief ALJ Ruling of February 4, 2014.


In the Matter of U.S. Energy Development Corp.
Ruling of the Chief Administrative Law Judge on Motion for Issuance of Subpoena Duces Tecum, February 4, 2014
DEC File No. R9-20111104-150

The Chief ALJ granted Respondent's motion to issue a subpoena to another state agency in accordance with previous rulings in this action. Respondent (generators of hydraulic fracturing or fracking wastes upstream in PA.) seeks discovery from the NYS Office of Parks, Recreation and Historical Preservation to support its various defenses involving the causation of alleged stream pollution violations. The Chief ALJ had ruled that CPLR 3101[a] provided for the issuance of a subpoena duces tecum by leave of the ALJ pursuant to the Department's statutory grant of the subpoena power (see Matter of U.S. Energy Develop. Corp. , Ruling of the Chief ALJ on Discovery Requests, Dec. 11, 2013, at 4-5 [citing ECL 3-0301(2)(h)]; see also ECL 71-1709[1]; see generally Matter of Irwin v Board of Regents of Univ. of State of N.Y. , 27 NY2d 292, 296-297 [1970]; Matter of Moon v New York State Dept. of Soc. Servs. ,207 AD2d 103, 105 [3d Dept 1995]).


Weird News

Pot Farmer Gets 6 Years for Using Rat Poison, Other Nasty Stuff (E.D. of California)

A Mexican national was sentenced to six years in prison for among other offenses: releasing rat poison and FIFRA restricted use insecticides in connection with a large illegal marijuana farm in the Lilly Canyon area of the Sequoia National Forest.

Among the chemical poisons and restricted use pesticides used on the farm were: zinc phosphide, a substance so toxic that a single swallow can kill a small child, and; carbofuran, where the ingestion of a single grain will kill a bird and one quarter of a teaspoon is fatal to humans. Who says marijuana is harmless?!

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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.