By Michael J. Lesser, Environmental Law Section, NYSBA © 2014
Enforcement News for January
Crude Oil Swamps NY
Governor Cuomo issued an executive order directing several State agencies to undertake a complete review related to rail and water shipments of volatile crude oil from the Bakken oil fields in North Dakota. Governor Cuomo's Executive Order 125 directed DEC, the Department of Transportation, the Division of Homeland Security and Emergency Services, the Department of Health, and the New York State Energy Research and Development Authority to undertake a review of all security, health and environmental issues. These agency commissioners also sent a letter to several federal agencies urging new federal regulations regarding rail transportation to help protect New York communities.
In a related matter, DEC is considering the application of Global Companies Inc. to modify its Title V air permit to allow the installation of oil heaters to ease the transfer of crude oil in the Port of Albany.
Harbor at Hastings Settles on PCBs Clean Up
The Atlantic Richfield Company (ARCO) has agreed to enter into an Order on Consent to clean up contaminated soils and Hudson River sediment at the Harbor at Hastings site in Westchester County. ARCO's predecessor, released polychlorinated biphenyls (PCBs) during manufacturing operations at the site.
Clean Sweep NY Sees Continued Success
DEC collected 138,000 pounds of chemicals during the most recent phase of the Clean Sweep NY program, conducted in eleven counties in the Western Finger Lakes region. The program allows businesses, farms and schools to properly dispose unwanted or obsolete pesticides and other chemicals. The program rotates to different areas of the state on a schedule established by the agency.
Federal Criminal and Civil Enforcement
Enviro Lab Falsifies Documents (NDNY)
A commercial laboratory pleaded guilty to committing mail fraud for the falsification of over 3,300 laboratory results from 2008 through 2010, and was sentenced to pay a $150,000 fine and five years of probation. The defendant, Upstate Laboratories, had been a certified laboratory that performed chemical and environmental analysis of water and soil samples supplied by public and private clients. Falsified sampling results involved missed holding times, routine "backdating" of sample results and phony analytic reports.
Feds, Queens DA Chomp Down on Illegal Piranha Importer (EDNY)
In a joint federal, state and local prosecution, an individual and his solely-owned corporation, pleaded guilty in federal court in Brooklyn to violating the Lacey Act for deliberately mislabeling imported piranhas. The defendant instructed his tropical fish supplier to falsely label the dangerous and carnivorous piranhas as common and docile tropical aquarium fish. In 2011 and 2012, this scam falsely identified 39,548 piranhas, worth approximately $37,376, which were then sold to fish retailers in several states. The individual will pay a $3,000 fine while the corporation pays a $35,000 fine and as well as $35,000 in restitution to the DEC.
Rare CERCLA Pleas for Illegal Handling and Disposal of Asbestos (NDNY)
Two defendants pleaded guilty in federal court to conspiracy to violate the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) in relation to the illegal removal, handling, and disposal of asbestos from properties. The underlying indictment also charged the defendants with making false statements to law enforcement officers and retaliating against a witness. Defendants also failed to immediately report the release of asbestos from properties. The CERCLA crimes occurred during the course of an asbestos abatement of a buildings heating system. In the continuation of a current NY trend, this federal prosecution was based on a joint federal, state and local investigation.
Illegal Rhino Horn Trafficker Gets the Point (EDNY)
An Irish national was sentenced in federal court to serve 14 months for conspiracy to violate the Lacey Act for illegal rhinoceros horn trafficking. This prosecution is another result of Operation Crash which is part of a worldwide law enforcement effort to halt the illegal trade in the ivory of endangered species.
Feds Slam Suffolk Co. for $2 Million for UST Violations (EDNY)
The US Attorney for the Eastern District of New York and EPA Region 2 settled with Suffolk County for violating the federal leak prevention requirements for underground storage tanks at 35 County facilities. The violations involve 68 underground gas or waste oil storage tanks. The seriousness of the violations was enhanced as the tanks are located within the boundaries of a federally designated Sole Source Aquifer.
Ex-Manager Sentenced For Falsifying Nuclear Facility Records (SDNY)
The former Chemistry Manager of the Indian Point nuclear power plant was sentenced in the U.S. District Court to 18 months' probation and a $500 fine for engaging in deliberate misconduct. The defendant had concealed material facts from his employer and the Nuclear Regulatory Commission by fabricating test data, falsely showing that diesel fuel met NRC standards for particulate matter. The diesels are necessary for emergency power generation at the plant.
Two More Plead Guilty In NY-NJ Waste Industry Scheme (SDNY)
In an ongoing criminal action, two more defendants pleaded guilty in the SDNY for an illegal scheme to exert control over the commercial waste-hauling industry in the greater New York City metropolitan area. To date, 21 of the original 32 defendants have pleaded guilty. The two here were part of the Gambino Crime Family who participated with members of three different Organized Crime Families of La Cosa Nostra ("LCN") in a scheme to control various waste disposal businesses and commit various crimes as part of that scheme.
SPECIAL FEATURE: Selected OSHA/NYSDOL Violations
Brooklyn Tank Recycler Cited After Employee Heat Death
The U.S. Department of Labor's Occupational Safety and Health Administration ("OSHA") has cited Cooper Tank & Welding Corp., for eight health and safety violations following the heat-related death of a 64-year-old employee. The worker had been working for several hours on a conveyor line, sorting and recycling construction and demolition waste, when he reached a fatal level of exposure to excessive heat from environmental sources and recycling machinery. OSHA states that this incident could have been avoided through reasonable measure such as establishing and implementing a heat stress management program.
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 Chazen Companies
Order, December 27, 2014
Respondent was assessed a $1,000.00 penalty for failing to report a petroleum spill in violation of 6 NYCRR Part 613.8. It is significant to note that the Respondent is an environmental consultant that failed to report a spill observed during the performance of a Phase II site investigation. Respondent was also deemed to meet the definition of a "person" for spill reporting purposes as defined by 6 NYCRR Part 612.1(c)(20).
In the Matter of ARG Trucking
Order, January 27, 2014
Respondent violated 6 NYCRR 230.2 (f)(4) by failing to connect the vapor return line between a delivery truck and the vapor port for the underground tanks, during a gasoline fuel delivery and was assessed a civil penalty of $5,000.00.
In the Matter of Town of Bethlehem
Order Modification, January 28, 2014
Based on "good cause" shown by Respondent, NYSDEC agreed to a six-month extension of a technical compliance schedule in the original Order. The original Order pertained to engineering changes to be implemented on the municipal sewer system operated by Respondent.
In the Matter of SABIC Innovative Plastics US
Order, January 31, 2014
Respondent a plastics manufacturer paid a civil penalty of $16,000.00, for 28 separate violations of various hazardous waste storage, handling and associated records violations in 6 NYCRR Parts 372 and 373. Respondent's liability was enhanced by being deemed a major hazardous waste generator. This scenario demonstrates the costly consequences of generating hazardous waste without regulatory guidance.
DEC Administrative Decisions and Orders
In the Matter of Robert Dalcamo
DEC File No. R1-20110613-196
Order, December 1, 2013
Respondent disposed of more than 70 cubic yards of solid waste at an unauthorized solid waste disposal facility, in violation of 6 NYCRR 360-1.5(a); and operated a solid waste management facility without a valid permit, in violation of 6 NYCRR 360-1.7(a)(1)(i). Upon granting a Motion for a hearing without an Order, the Commissioner assessed a civil penalty of $90,000, of which $45,000 was payable within thirty (30) days, and $45,000 suspended contingent upon compliance with the order. Respondent did not appear.
However, the Commissioner denied a staff request to impose a "lifetime ban" on Respondent from engaging in future environmental activities due to insufficient facts on the record. Staff's request relied primarily on Respondent's prior environmental enforcement record dating back to the early 1990s.
In the Matter of A & P Mart and Arundeep Vij
DEC File No. 12-33, R9-20120524-53A
Order, December 17, 2013
The Commissioner ruled in favor of the DEC's Motion for a Default Judgment where Respondents violated the terms of a relatively minor 2012 prior administrative consent order for petroleum tank paperwork violations. Respondents failed to pay the previously agreed upon $1,500 civil penalty and submit the required records and were assessed a combined new penalty of $7,000 (including the original penalty) for violating the underlying order. Respondent failed to appear.
In the Matter of Grand Concourse East HDFC (1003 Grant Avenue)
DEC Case No. PBS 2-601137NBT
Order, December 17, 2013
Respondent violated 6 NYCRR 612.2 for the failure to reregister a petroleum storage facility, within 30 days of the transfer of ownership of the facility to it and then failed to re-register its facility for approximately eighteen years. The Commissioner granted a Motion for a Default Judgment as Respondent did not appear and was assessed a civil penalty of $10,000 and ordered to submit a registration application to the DEC for the facility.
In the Matter of San Miguel Auto Repair Corp., Andre Moncion, Hector R. Cabrera, Genelly Cornelio, and Cristian Tejada
DEC Case No. CO2-20100615-18
Order, December 17, 2013
Respondents completed on-board 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. A combined civil penalty of one hundred fifty thousand eight hundred seventy-five dollars ($150,875), was assessed against various defendants with the onus falling on the corporate defendant.
In the Matter of 735 Pelham LLC
DEC File No. R2-20110120-23
Order, December 18, 2013
In a significant holding, the Commissioner assessed respondent a total civil penalty of $150,000, with $80,000 payable and $70,000 suspended for substantive violations of an underlying 2008 administrative consent order for PBS and oil spill remediation violations. In particular, the Respondent's claims of good faith attempts to comply and remediate the oil spill were held to be "not credible."
In the Matter of U.S. Energy Development Corporation
DEC File No. R9-20111104-150 Ruling of the Chief ALJ Amending Discovery Schedule, December 31, 2013
The Chief ALJ issued a Ruling approving of a very detailed discovery schedule involving multiple subpoenas proposed by Respondent in this complicated case based on underlying alleged waterway violations.
In the Matter of Benaim, Raphy and Tovit, R.B. 175 Corp.
DEC Case No. R2-20120809-487
Order, January 27, 2014
Respondents were assessed a civil penalty of $62,500 (jointly and severally) for violations of an earlier 2009 Stipulation entered with DEC for the investigation and remediation of an petroleum spill at a former gas station site. The violations focused on a faulty and incomplete Remediation Investigation Report ("RIR") submitted by Respondent.
In the Matter of Mahoney, Patrick A.
DEC Case No. CO 7-20110601-100
Decision and Order, January 27, 2014
In a rare adjudicatory hearing brought under the ECL's fish and wildlife law and regulations (ECL Section 11-0533(7), 6 NYCRR 197.8), the DEC revoked a fishing guide's license for one year and assessed a penalty of $200 for violating the state's "no fighting in a public fishing area" prohibition (6 NYCRR Part 59.1). The revocation proceeding was based on the licensee's prior criminal conviction for assaulting a fisherman on the Salmon River.
New Environmental Impact Issue! Elves?
Elves (a/k/a the "Little Folk") have been part of Icelandic folk customs since that country's founding in the Viking era. The importance of this local cultural issue recently became apparent when several proposed projects allegedly encroached on elven lands. To date, elves have not been spotted in New York.
Man Indicted for Attempt to Use Deadly X-Ray Weapon (NDNY)
A Galway, New York man has been indicted in the NDNY on several federal felony counts for the development of and plans to use a remotely-operated radiation-emitting device including attempting to produce and use a radiological dispersal device, in violation of Title 18, United States Code, Section 2332h(a) and (c)(1). Don't even ask.
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.