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