By Michael J. Lesser, Environmental Law Section, NYSBA © 2014
Editorial Note: This Update introduces a new section: Energy Enforcement and Regulation. The increased federal, state and local involvement in the mining, processing, transportation and storage of fossil fuels is expanding and certainly requires additional focus in the Update.
Roberto Clemente Park Public Meeting
The DEC held a public hearing to explain the proposed remediation plan for this illegal asbestos dump site located in a central Suffolk County environmental justice community. Excavation is the primary remedy.
NY Crime Reports Show Steep Decline in Haz. Waste Prosecutions, 2006 to 2013
A review of hazardous waste and substance reports compiled by the NYS Division of Criminal Justice Services indicates that the criminal prosecution of related crimes has declined and virtually ceased in all categories between 2006 and 2013. The report shows that 2011 is the year when criminal prosecutions dramatically dropped. However, the Reports do not address non-hazardous waste or federal criminal prosecutions.
NY AG Supports Broader CWA Jurisdiction
The NY Attorney General joined eight states in endorsing a proposed federal rule that clarifies and broadens the definition of waterways subject to the jurisdiction of the Federal Clean Water Act (CWA). Currently, certain waterways are omitted from federal jurisdiction.
"Oxy" Pays 190 million to NJ
Occidental Chemical Corp. will pay New Jersey $190 million for past cleanup and removal costs generated by the Passaic River pollution generated by the former Diamond Alkali NPL Site. The settlement, if approved, will bring the total amount recovered by New Jersey to $355.4 million.
Costco Zapped for Nationwide Freon Releases
Costco Wholesale Corp. has agreed to pay $335,000 and spend almost 2 million to cut its emissions of greenhouse gas chemicals from refrigeration equipment at more than half of its stores nationwide, according to documents filed in California federal court by the EPA. That agency alleged Costco violated the federal Clean Air Act (CAA) by failing to repair leaks of the Refrigerant R-22. Costco will fix refrigerant leaks and make improvements at 274 of its stores at an estimated cost $2 million over the next three years. (The settlement references a number of Costco locations in N.Y.)
18 Billion Fine Possible for BP Gulf Explosion and Spill
This disposition is noteworthy as the growth in the size of environmental fines and penalties continues ever upward.
Hazardous Waste Violator Seeks Permit Renewal
A draft 6 NYCRR Part 373 hazardous waste permit for MPM Silicones has been presented for public comment. MPH is a large silicone manufacturing facility in the towns of Waterford and Halfmoon in Saratoga County where hazardous wastes are treated and stored. The facility is under extra scrutiny due to past federal and state enforcement violations.
Uranium Exposure Study Ongoing at Former NL Industries Site
Despite the passage of almost three decades of investigation and clean up, health studies for this former depleted uranium processing plant near Albany still continue. Partial results are available from the NYSDOH.
NY Intervenes in Green House Gas Case
The NY Attorney General is filing a motion to intervene in a court challenge to a 2010 settlement agreement with the federal Environmental Protection Agency (EPA). The 2010 settlement agreement is being challenged by a coalition of 12 states, many of which are in coal-producing regions.
NYC Recycling Crackdown
Under the new Mayoral administration, reported recycling violations increased 47 percent in 2014, when compared to last year's data.
New NYS Invasive Species Regulations in Effect
The latest regulations issued to fight invasive species were developed by DEC in cooperation with the NYS Department of Agriculture and Markets. Since 2011, $30 million in state funds has been allocated toward preventing the spread of invasive species in NY.
Susquehanna River Basin Commission Issues 2013 Annual Report
The inner workings of the SRBC are revealed for Susquehanna River devotees.
Energy Enforcement and Regulation
Global Partners Permit Comment Period Extended
DEC extended the public comment period for the controversial Global Companies permit application at the Port of Albany for an additional 60 days due to broad public and community interest. Global previously submitted a permit application to modify a Title V Air Facility permit to allow the company to heat petroleum products, including crude oil transshipped through the Port of Albany facility.
Underground Gas Storage Controversy in the Finger Lakes Region
There is a growing regulatory conflict involving the use of old salt caverns for the storage of propane and perhaps surplus natural gas in the future.
Big Wind to be Studied On L.I. Coast
In the continuing quest to harvest the substantial wind resource of the Long Island coast, a consortium will study how to best harvest energy generated by ocean winds off the coast of Long Island.
USDOT Proposes New Rules for Securing Crude Oil Trains
A unit of USDOT proposed new rules to prevent crude oil and hazardous material trains from being left unattended and unsecured on the tracks. In the Federal Railroad Administration's latest proposed change, the agency proposed that such railroad cars should not be left unattended unless specific brake safety procedures are followed.
Jt. Federal-State Crude Oil Train Inspections
NY and federal regulators completed a targeted crude oil tank car and rail inspection due to the dangers of crude oil transport. The inspections included 766 crude oil tank cars and approximately 167 miles of track. Nine hazardous materials violations were issued and 658 defects were detected overall.
New Waterway Invasive Species Law Signed
New legislation prohibits the launch of watercraft in New York State without taking reasonable precautions to prevent the spread of aquatic invasive species. The bill (A9619-B, S7851-B) advances current efforts by the State and private organizations to halt the introduction and spread of invasive aquatic species into New York's waters.
TRIS Ban Enacted
A NY law now bans the sale of products containing TRIS (aka THAM), a cancer-causing chemical used as a flame retardant in consumer products. The law (A4741/S3703-B) expands the definition of TRIS to include an additional chemical, TDCPP (TRIS(1,3-dichloro-2-propyl) phosphate). It also prohibits the use of TRIS in numerous types of consumer child care products. TRIS alternatives are now available to the industry.
New Wood Construction Notice Bill Protects Firemen
A new state law (A1896/S6675) requires property owners to notify their local governments whenever a newly constructed or rehabilitated residential structure is comprised of a truss type, pre-engineered wood or timber construction. In a fire, such structures become fragile and can collapse with little or no warning.
Enforcement People in the News
DEC Region 4 Director Now At Harris Beach
Eugene "Gene" Kelly, formerly the DEC Region 4 Regional Director is now Senior Counsel to Harris Beach PLLC in Albany.
NYS AG Section Chief Now At Pace Law
Environmental Law Section member Janice Dean bid farewell as Section Chief in the N.Y.S. Attorney General's EPB Toxics and Cost Recovery Section to become Chief of Staff to Pace Law Dean David Yassky in White Plains.
DEC ALJ Now Board Member For Non-profits
Hon. Helene Goldberger recently retired as an DEC Administrative Law Judge and is now a Board Member for both the Mohawk Hudson Land Conservancy and the E.N. Huyck Preserve. Ms. Goldberger is also a former N.Y.S. Assistant Attorney General. (Help Preserve Land During Development, Albany Times Union 9/21/14, page D-1)
Harris Beach Energy Attorney Now Director of Commission on Rural Resources
Environmental Law Section member Jillian D. Kasow has accepted a position as Director of the N.Y.S. Senate Legislative Commission on Rural Resources in Albany. Formerly, she had worked at Harris Beach PLLC on the firm's energy industry team.
State & Local Enforcement
Criminal Conviction for NYSDOH Rip Off
A felony guilty plea was entered by a former NYS Department of Health (DOH) contract employee for padding his bills and stealing more than $110,000 from the state. He pleaded guilty to one count of offering a false instrument for filing in the first degree, PL 175.35, a Class E felony. He will reimburse the state $110,000 and is expected to receive 30 days in jail and five years' probation with community service.
NYSDOH Zaps Negligent Water Testing Lab with $525K Settlement
The NYS Health Department settled a case with a privately operated laboratory due to a "flaw in test procedures" which raised serious questions about the credibility of some pollutant sampling at the Dewey Loeffel Landfill Superfund waste site in Nassau, Rensselaer County. The $525,000 settlement consists of two components: a civil penalty of $275,000 and $250,000 to fund environmental cleanups in Schenectady County where the lab is located.
DEC Penalizes Norlite for Stinky Incinerator Violations
The only commercial hazardous waste incinerator in NY will pay penalties of nearly $30,000 for environmental violations including those for a recent airborne chemical release. As part of a settlement with DEC, the Norlite Corp. will also pay $64,000 for environmental benefit projects ("EBP") to be selected in the area near the plant. The Consent Order is more fully described in the Region 4 Section below.
Fulton Co. Man Pleads Guilty to Environmental Violations
A Fulton County Court sentenced a man to pay a $15,000 fine for violating the NYS Environmental Conservation Law. The DEC Conservation Police's Bureau of Environmental Crimes Investigation Unit ("BECI") conducted a two-year investigation of a vehicle dismantling operation which revealed the release of hazardous substance fluids and debris on site. The Fulton County District Attorney's Office prosecuted and the defendant pleaded guilty to Endangering the Public Health, Safety or the Environment in the fourth degree, a Class A misdemeanor, ECL 71-2711, and unlawfully operating a solid waste management facility, ECL 71-2703(2), also a Class A misdemeanor. The defendant was also ordered to clean up the site under the supervision of DEC.
Ice Plant Fined for Ammonia Violations
Arctic Glacier USA Inc., a Brooklyn, N.Y. ice plant, was fined $264,700, by OSHA for 19 violations of workplace safety standards following a comprehensive inspection which noted deficiencies in the plant's process safety management (PSM) program. OSHA's PSM standard includes the regulation of ammonia used in the plant's refrigeration system.
Asbestos Dumpers Convicted Under CAA & CWA (WDNY)
A defendant was convicted of violating the Clean Air Act ("CAA") and sentenced to two years of probation and a fine of $100,000. An additional defendant was also sentenced to one year probation and a fine of $25,000 for violating the Clean Water Act ("CWA"). The corporate defendant was also ordered to form an environmental training program for its employees. A $5,000 penalty was also paid to the Occupational Safety and Health Administration ("OSHA") to resolve related violations. Defendants were engaged in the demolition of buildings containing asbestos on either side of the Chadakoin River.
Concrete Slurry Discharges Lead to CWA Convictions (NDNY)
Several defendants pleaded guilty for violations of the Clean Water Act ("CWA") related to the process of hydro-demolition to renovate concrete structures. Hydro-demolition uses high pressure water to remove concrete from buildings. The waste-water created contains a slurry of industrial waste which included CWA pollutants. The pollutants were released into the Susquehanna River.
Asbestos Release Criminal Sentencing (NDNY)
A New York property owner and his manager were sentenced to 21 months for conspiring to violate the Clean Air Act ("CAA") for the unsafe removal of asbestos during renovations, for releasing asbestos into the environment, and for failing to notify the authorities about asbestos releases in violation of both the CAA and the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). The prison sentences will be followed by two years of supervised release and the owner must also pay a $25,000 fine.
EPA Hits SUNY Downstate Med. With Hazardous Waste Complaint (EPA R2)
EPA Region 2 issued a legal complaint against Brooklyn's SUNY Downstate Medical Center for violating parts of the federal RCRA law for the improper management and storage of hazardous wastes generated and stored in improperly labelled or corroded and leaking containers. Proposed fines may exceed $150,000.
Gowanus Canal Cleanup Settlement Proposed (EPA R2)
EPA Region 2 proposed a $20 million CERCLA settlement with a party to undertake the remediation on the banks of the Gowanus Canal which will include the removal of 17,500 yards of contaminated soil.
Storm Sewer Releases Stopped in PR (EPA R2)
EPA Region 2 settled Clean Water Act violations associated with unlawful water pollutant releases into the municipal storm sewer system of Culebra, Puerto Rico. In the settlement, up to forty homes will also be connected to the local sewer system (POTW).
Several Buffalo Gas Stations Pay $287K for PBS Tank Penalties (EPA R2)
The owners and operators of four gasoline stations in the Buffalo, New York area have been ordered to pay the EPA a total of $287,100 in penalties. New Yorkers that think that state petroleum bulk storage ("PBS") tank enforcement is onerous should take heed of this parallel and rather draconian EPA Region 2, enforcement action. The violations cited are very similar to those in state regulations in 6 NYCRR Parts 612, 613.
DEC Region 4 Administrative Orders
In the Matter of the Enterprise Terminals & Storage LLC
DEC File No. R4-2014-0820-139
Order on Consent, Sept. 9, 2014
Respondent owns and operates a propane gas pipeline that runs through Bethlehem in Albany County. However, local residents were subjected to a rotten egg odor generated by a related pipeline facility due to the additive mercaptan (which creates that aroma for safety reasons). DEC alleged violations of the generic air nuisance regulation as set forth in 6 NYCRR Part 211.1, and assessed a civil penalty of $5,000.
In the Matter of Moonlight Horticultural Services
DEC File No. R4-2014-0715-128
Order on Consent, Sept. 10, 2014
Respondent, a commercial pesticide applicator, was assessed a $500 civil penalty for a violation of 6 NYCRR 325.40 (a)(5) for failing to provide the correct address of the treated premises in the written commercial lawn care contract.
In the Matter of RWC, Inc.
DEC File No. R4-2014-0722-131
Order on Consent, Sept. 10, 2014
Respondent, a commercial herbicide applicator, violated 6 NYCRR 325.1 (s)(4) by failing to post visual notifications markers prior to applying pesticides within 100 feet of a town park and two private dwellings.
In the Matter of Norlite Corporation
DEC File No. R4-2014-0017-6
Order on Consent, Sept. 3, 2014
Respondent, a manufacturing and hazardous waste management facility, was assessed a civil penalty of $29,600, and ordered to fund an Environmental Benefit Project (EBP) in the amount of $64,000 for the benefit of the City of Cohoes. The Department will have the "sole discretion to determine the appropriate use of the EBP funds" in accordance with EBP policy (CP-37).
Hazardous waste (RCRA) and air pollution violations include:
- 6 NYCRR Part 211.2, due to public nuisance for the accidental release of methyl methacrylate vapor;
- Respondent's failure to have a Hazardous Waste sign affixed to Tank 200 B is a violation of 6 NYCRR Part 373-2.10(e)(4) and a Condition of the permit;
- 6 NYCRR 373-2.2(g) (4) for failing to record consistent information in its inspections logs;
- failure to update its Best Management Practices Plan as per a Permit Attachment Special Condition;
- a violation of a Permit Attachment Special Condition by not updating its Fugitive Dust Control Plan to reflect the removal of the silos;
- a violation of a Permit General Condition by failing to maintain the required information on the website;
- 6 NYCRR 374-3.2 (d) (4) (i), by having openings in each of the two boxes of a Universal Waste (spent fluorescent lamps);
- 6 NYCRR 373-3.28 (g) (1), by not having port cap on a pump sampling port.
In Matter of Hageman Fire Department, Inc.
DEC File No. R4-2014-0718-130
Order on Consent, Aug. 25, 2014
The DEC determined that the Hagaman Volunteer Fire Department (F.D.) improperly authorized the open burning of debris at a privately owned site without a permit in violation of the open burning air pollution regulations at 6 NYCRR 215.2, 215.3.
The FD was assessed a civil penalty of $500 with $400 suspended based on a Schedule of Compliance which required that: the FD shall not recommend or authorize any open burning in violations of 6 NYCRR 215; and, it will mail a DEC approved notice to all FD residents advising about the state's open burn regulations.
DEC Administrative Enforcement Orders, Decisions and Rulings
In the Matter of 3840 Orloff Ave. Corp.,
DEC CASE NO. 2-602087BT
Commissioner's Order, Sept. 12, 2014
The Commissioner granted the Department's motion for a default judgment pursuant to 6 NYCRR 622.15, for failing to answer or appear. Respondent was then ordered to pay a civil penalty of $7500, for a violation of 6 NYCRR Part 612.2, for failing to re-register its petroleum storage facility. The registration certificate had expired in 2010.
Tragic Rare Bear Attack Fatality in NJ
This sad story raises several questions about wildlife management and hunting policy in states that abut NY.
Drought Compels California Ground Water Use Laws
California is taking extreme steps to combat what is a record extreme drought (see next item).
Don't Cry for Me Argentina (Argentine Ants That Is)!
Extreme weather can impact native species, creating a window of opportunity for invasive species. The already difficult case of the "Argentine Ant" infestation has been exacerbated by the extreme drought in most of the Western states.
Cooking Oil Pirates Strike on L.I.
As previously reported, this new environmental crime is spreading due to the rising demand for recycled cooking oil as an alternative fuel. Recently, Suffolk is being targeted by cooking oil pirates. ARRRGGGggggggg!
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.