July 5, 2015

NY Environmental Enforcement Update May 2015, Vol. 2, #5


By Michael J. Lesser, Environmental Law Section, NYSBA © 2015

Enforcement News

DEC Hits Hospitals with Hazardous Waste Violations

Two Troy, NY hospitals were penalized almost $35,000 for numerous hazardous waste violations, including improper handling of chemo-therapy wastes and the failure to maintain required records. (See also the Region 4, summaries below).


Albany Toxic Toy Ban Stayed

A federal judge has granted a stay to temporarily halt the implementation of a recent local law banning toxic toys. This case may provide a test case for similar local laws proposed around the state.


Court of Appeals Upholds Municipal SPDES Permits

New York's highest court upheld a state water pollution permit program that allows municipalities with populations under 100,000, to discharge storm-water runoff with less stringent public comment procedures. The decision rejects a challenge from environmental groups who claimed that the public was denied an opportunity to comment on this category of permits. They also claimed that the program reduces incentives to limit pollution. Specifically, the court held that the State Pollutant Discharge Elimination System ("SPDES") permit issued via the program complied with the federal Clean Water Act ("CWA") or state law.


Fracking -- the Drama Continues

DEC finally released the Final Supplemental Generic Environmental Impact Statement (FSGEIS) for high-volume hydraulic fracturing, commonly called "Fracking." The study identifies what the state describes as the "continued major uncertainties about potential significant adverse health and environmental impacts associated with the activity." DEC will next issue a formal and required Findings Statement, in accordance with the State's Environmental Quality Review Act ("SEQRA").

DEC also issued a separate rebuttal to a EPA report that suggested that fracking is not a significant threat to drinking water.


PCB Dredging on Hudson Waterways Considered by EPA

As previously described in the Update, various stakeholders are trying to induce General Electric to extend Hudson River PCB dredging to nearby connected waterways. GE says it is not obligated under its federal consent decree. Stay tuned!


Huge Sewage Spill Goes Unreported

Despite a state reporting law in place, the City of Amsterdam failed to report an estimated 24 million gallon sewage spill into the Mohawk River from its aging and decaying treatment system ("POTW") that occurred in 2013.

State and local authorities are uncertain about the potential health impacts on down river municipalities that draw drinking water from the river.

This author's article describing the Sewage Pollution Right to Know Act will provide additional insights into this topic. Currently there are approximately 650 POTW operating in NY.


Proposed Casino's Hazardous Past Unearthed!

The Casino to be built in Schenectady, NY has an interesting and confusing hazardous waste release history that needs to be deciphered before the project can proceed.


State Ends 90 Day Email Destruction Policy

In the face of bitter opposition, Governor Cuomo ended the automatic deletion of state emails over 90 days old, including environmentally related emails. A new email retention policy is in place.


New State Water Standards Proposed

DEC has issued a hearing report regarding new proposed water quality standards in 6 NYCRR Parts 701 and 703. The new standards will support the "swimmable water" goals of the federal Clean Water Act ("CWA").


Beware Social Media Postings!

If there is any doubt that social media is part of the enforcement landscape, then review this recent DEC Region 4, consent order settlement before hearing. While the case is relatively minor, it demonstrates that the regulatory community should use care before posting news on the internet (See also Region 4, Orders below).


Can EPA Boss Around DEC?

This is the question raised with New York's pending permit decision regarding crude oil heating plant at the Port of Albany. The short answer: Yes, they can under certain circumstances. When federal regulatory programs are delegated to a state pursuant to federal law - such as the Clean Air Act - EPA retains significant oversight and overfilling authority over the state and more importantly, discretion on when to exercise these powers.


NY AG Strongly Supports New EPA CWA rule

New York Attorney General Eric T. Schneiderman joined other AGs in the Northeast in favoring the final "Clean Water Rule" enacted by the EPA and U.S. Army Corps of Engineers (ACOE).


Birds Banned at Statewide Fairs!

NY has joined other states in taking extreme measures to combat a growing national outbreak of a little understood but deadly avian flu that has threatened poultry nationwide.


Finally, Remediation for the Grumman Bethpage Plume

An Order entered into by DEC and Northrop Grumman will be obligate Grumman to participate in the cleanup of groundwater originating at the site. The company will also cooperate with the U.S. Navy on a remedial design and remedial action work plan the Navy submitted to DEC to remediate contaminant "hot spots" recently identified in a large groundwater plume.


Chinese Laminates Anyone?

Lumber Liquidators Inc. will suspend its sales of laminate flooring from China. Prosecutors and consumers have alleged these contain toxic levels of the building chemical formaldehyde. It will also review suppliers who had labeled the product as meeting California's limits for the carcinogenic chemical. The company has over 20 stores in NY.


Beech-Nut, Asbestos and Worse

Here is another cautionary tale on how NOT to address the demolition and reuse of a contaminated former manufacturing facility. Asbestos abatement woes will likely haunt this Canojaharie site for years to come. In a stunning lack of vision, Beechnut received "tens of millions" in government incentives to relocate their factory in 2010, but not a penny for environmental investigation or cleanup. They later sold the property to the current owner.


Another Rhino Attacked!

Sadly, savage ivory poachers continue to find and attack the dwindling numbers of African Rhinos.


E. Cig. Ban Law Proposed

A growing number of NYS legislators support legislation to ban electronic cigarettes ("E-Cigarettes") from public places. Several NY municipalities have already enacted local bans.


Border Bug Quarantine in Place

The U.S. Department of Agriculture ("USDA") has declared the NY-Vermont border as the edge of a quarantine zone to prevent the movement of an insect known as the Emerald Ash Borer into Vermont. This invasive species from Asia can seriously damage hard wood trees such as the ash.


Beware! Nematodes Threaten Your French Fries

I bet you did not know that NY is the home of the Federal Nematode Quarantine Facility on Cornell's Ithaca campus, a facility that tests for nematodes (tiny roundworms) that attack potato roots.


Energy Enforcement

Port Crude Heater on Hold

DEC has determined that it will reverse its previous decision to rescind the Negative Declaration issued in connection with the pending Title V Permit Modification Application at the Port of Albany facility. The Permit Modification Application has not been denied but the DEC has requested additional information in connection with the submission.


DEC Crude Oil Spill Response Plan

NY announced a new emergency plan and other measures to address crude oil train spills and accidents. Critics of crude oil trains are pleased.


New Oil Train Rules Still Too Lax

Crude oil train critics were unhappy about the new rules unveiled by federal authorities. Now, the public interest group Riverkeeper is challenging new U.S. Department of Transportation (USDOT) crude-by-rail standards in federal court for the failure to protect the public and the environment from crude oil trains.


Critics Spout-off over Port Oil Spill

A contained oil spill of approximately 420 gallons at the Port of Albany provoked a severe reaction from opponents of crude oil trains despite there being little or no environmental damage.


Oil Train Safety and Congress

http://www.timesunion.com/tuplus-opinion/article/Congress-must-ensure-safe-rail-transport-of-crude-6241381.php for Congress to take direct action in regulating crude oil trains. Such regulations include raising the standards for oil train insurance.


Fire, Oil Spill at Indian Point Nuke Plant

Non-nuclear environmental incidents have given plant foes additional ammunition in their fight to close the Westchester, NY power plant. This includes NY Governor Cuomo who visited the plant to inspect the situation.


Entergy Michigan Violations

Entergy, which operates the Indian Point nuclear plant in Westchester, incurred radiation exposure monitoring violations at its Michigan nuke facility.


People in the News

New Director for Sierra Club

Capital Region environmentalist Aaron Mair is the new president of the national board of directors of the Sierra Club.


State & Local Enforcement

Walmart Settles Fertilizer Violations with AG

The settlement agreement requires Walmart to comply fully with the state's Nutrient Runoff Law and pay $98,000 in penalties to New York State for the alleged violations. The company will also halt sales of phosphorus-containing fertilizers intended for use on lawn or non-agricultural turf in NY stores and via the internet.


DEC Steps Up Aquatic Invasive Species Enforcement

The DEC Environmental Conservation Police conducted recreational boat inspections in the Adirondacks to raise awareness of new 2014 state regulations to prevent the spread of aquatic invasive species. Boaters now must remove all visible plant and animal materials from boats and trailers. They also must drain boats before and after using waterways bordering state lands supervised by DEC.


Federal Enforcement

Westchester Co. Slammed for $1.1 Million for Drinking Water Violations

Westchester County entered into a consent decree with the United States and EPA Region II, to resolve a civil lawsuit alleging that the County had improperly operated a unit of its water treatment system in violation of the Safe Drinking Water Act (SDWA). Specifically, the system failed to remove cryptosporidium, a parasite that can cause severe gastrointestinal illness. The value of the settlement includes substantial upgrades to the water treatment system.


Asbestos Monitor Pleads Guilty (NDNY)

A company pleaded guilty to a one misdemeanor count under the Clean Air Act (CAA) for negligently releasing asbestos (a hazardous air pollutant or HAP) and placing persons in imminent danger of death or serious bodily injury. The company had conducted air monitoring and sampling for asbestos abatement and removal projects.


RCRA Conviction in Owego (NDNY)

An Owego, New York resident pleaded guilty to one felony count of treating, storing, and disposing of hazardous waste without a permit, in violation of the Resource Conservation and Recovery Act (RCRA). Defendant operates a company that installs and removes old industrial plating equipment for re-use or recycling.


Tonawanda Coke Update (WDNY)

Under a $12 million settlement with the United States and the State of New York, Tonawanda Coke Corporation will pay $2.75 million in civil penalties, spend approximately $7.9 million to reduce air pollution and enhance air and water quality, and spend an additional $1.3 million for environmental projects in the area of Tonawanda, New York. Tonawanda Coke will pay another $1 million to fund supplemental environmental projects (SEPS) that will benefit the environment and the residents of Tonawanda. Additionally, $357,000 will be provided to a not for profit organization, to acquire and preserve wetlands.


Puerto Rico Contractor Settles Stormwater Violations

EPA Region II and a contractor entered an agreement that requires it to pay a $500,000 penalty, establish new staffing positions as well as training programs to ensure future stormwater runoff compliance with the Clean Water Act (CWA).


OSHA & NYSDOL

NYS Pushes Protections for Nail Salon Workers

Governor Cuomo and the NYSDOL proposed aggressive proactive labor legislation to control the state's growing nail salon industry. In addition to wage and workplace abuses, the state also alleges that workers are subject to toxic exposure due to the lack of ventilation or protective gear. Many in the industry are recent immigrants that have been historically exploited.


Region 4 Administrative Orders

In the Matter of Mike Kerwin
Order on Consent
DEC File No. R4-2014-1119-170

Respondent was assessed a civil penalty of $8,000, with $5,000, suspended for mining bluestone without a permit in the Town of Unadilla in Otsego County in violation of ECL 23-2711(1). Note: that law does allow limited exceptions for mining.


In the Matter of Seton Health System
Order on Consent
DEC File No. R4-2014-0917-152

Respondent - a Troy, NY hospital - was assessed a civil penalty of $20,000, with $3,000, suspended for over twenty violations of hazardous waste handling, storage, labelling and record keeping requirements pursuant to various regulations found in 6 NYCRR Parts 372 and 373. The violations were discovered upon a facility inspection and suggest that the hospital's staff was not familiar with federal RCRA or state hazardous waste standards. DEC enforcement against hospitals for this category of regulations is relatively rare.


In the Matter of Samaritan Hospital of Troy
Order on Consent
DEC File No. R4-2014-0918-154

Respondent, another Troy, NY hospital was assessed a civil penalty of $18,100, with $15,385, payable for over numerous violations of hazardous waste handling, storage, labeling and record keeping requirements pursuant to various regulations found in 6 NYCRR Parts 372 and 374. Many of the violations were related to the accumulation of waste light bulbs. DEC enforcement against hospitals for this category of regulations is relatively rare.


In the Matter of Bailiwick Animal Park
Order on Consent
DEC File No. R4-2015-0127-5

In a most unusual case, the Respondent, a Catskill, NY zoo operator, was found to be in violation of the state fish and wildlife law based on internet Facebook postings made by the zoo for promotional purposes. Specifically, Respondent was penalized for $4,000, with $2,000, suspended for depicting via Facebook unlicensed animals at the zoo and endangered or dangerous animals in contact with the public. This conduct resulted in multiple violations of license conditions and various provisions of ECL 11-0512.


DEC Administrative Enforcement Orders, Decisions and Rulings

In the Matter of Empire Construction and Real Estate LLC and Charles Celi
ALJ Ruling, May 27, 2015

Here, the DEC staff's Motion for a Default Judgment was denied due to jurisdictional defects in the service of the original Notice of Hearing and complaint. In a lengthy review of the relevant precedents, the ALJ notes staff's error in attempting service by first class mail pursuant to CPLR 312-a, on Respondent's attorney rather Respondent. Subsequently, the correct service of the Motion for Default Judgment did not cure the underlying jurisdictional defect.


Weird News

The Fight for Ape Rights Continues!

A NY Court incrementally advanced the legal rights of great apes to fight their "detention" by a NY state university. Previous Update posts have followed the international legal fight to establish human civil rights for captive great apes (chimps, gorillas, etc.).


Cal. Water Theft Rampant!

As the extraordinary and dangerous California drought persists, water theft has risen accordingly.


Ignitable Ice?

Flammable methane hydrate ice crystals - frozen natural gas - may be found in deep Artic waters and could be the next major source of fuel.


Wooly Mammoth Tusks, a Real Pain!

Newly unearthed (but somehow legal) prehistoric mammoth tusks have entered the Asian ivory market due to thawing Siberian tundra. But, there is virtually no discernable difference between the ivory from mammoths and that of endangered elephants. Thus illegal ivory traders can now mislabel ivory products to bamboozle world law enforcement agencies.


Alaskans Driven Bed-Buggy

EPA has established a 100k grant to fight bed bugs in Alaskan villages. The effort will focus on "breaking down barriers to effective bed bug management." What else?


The Poop Fairy of Aspen?

In an effort to admonish and educate the dog walkers on Aspen's Smuggler Mountain, authorities have advised that the "Poop Fairy" will not magically appear to remove their pet's business. Posted signs depicting said Poop Fairy attest to this awareness campaign.

_____________________________________________________________________________________________________________________

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.

June 28, 2015

NY Environmental Enforcement Update April 2015, Vol. 2,#4


By Michael J. Lesser, Environmental Law Section, NYSBA © 2015

Enforcement News

Finally, a New State Brownfields Law

After several years of false starts, state leaders finally agreed and allowed the passage of an updated Brownfields and related superfund laws. Changes include new deadlines for project completion, tax credit eligibility and funding for the state superfund. The new laws also instituted a new two-tier site eligibility program to distinguish NYC from the rest of the state. DEC still must issue several regulatory definitions to implement the law.


Lumber Liquidators Faces DOJ Criminal Charges

Lumber Liquidators Inc. reported that the USDOJ will seek criminal charges for violations of the Lacey Act due to imported wood flooring products from China. The company also reported the likelihood of several class actions for allegedly toxic products imported from China. The company has 19 locations in NY.


Schenectady Casino to be built on Brownfields

The State has chosen a historically contaminated brownfield to be the location of a new casino and extensive associated development. While the environmental issues were downplayed in the site selection process, the developer must address some intricate environmental and engineering issues including soil vapor protection and waterfront dredging as part of the state's Brownfield Cleanup Program.


Walgreens Refuses Cleanup of Ex-Dry Cleaner Site

Here is another cautionary tale about the purchaser of a former dry cleaner that risked state cleanup liability for a good retail location - and may lose in the outcome.


EPA and GE Joust over Added Canal PCB Cleanup

Locals urge that General Electric not be allowed to disassemble its PCB processing plant while PCBs still remain in the Champlain Canal, an off-shoot of the Hudson River. However, the canal was not part of the original Hudson River cleanup agreement between EPA and GE which is reluctant to re-open the matter (to say the least).


Odor Woes - Tis the Season

Warmer weather usually raises the exasperating subject of odor control and enforcement. On the state level, 6 NYCRR Part 211, may be of interest regarding state enforcement, in addition to any local code restrictions.


Reform NY Toxics Law Now!

Some New York legislators have joined a nationwide movement to reform state and federal toxics laws regarding testing and product content disclosure. These basic laws - such as TSCA - have remained little changed regarding the investigation of toxics since the 1970's.


NY AG Warns about Lead Poisoning

The NYS Attorney General has gathered resources related to the prevention and detection of lead poisoning.


NY AG Warns about Water Pollution via Microbeads

As previously reported in the Update, the NY Attorney General has taken notice of the water pollution threat created by the release of microbeads into the environment through the use of numerous personal consumer products that use these tiny plastic bits.


APA Contemplates Invasive Species Prevention

The Adirondack Park Agency has joined the state's efforts to prevent the expansion of destructive invasive species into the region.


DEC Issues Proposed Amended Water Quality Rules

DEC issued a hearing report regarding amendments to 6 NYCRR Parts 701 and 703, to conform those standards to new federal water quality regulations.


DEC Staff Loses Camera Privacy Suit

In a follow up to a previous post, a court held that DEC staff may be spied upon by security cameras for purposes of enforcing break times.


Energy Enforcement

Albany Co. Bans Fracking Wastes

Despite the state's ban on natural gas fracking, Albany County banned liquid hydraulic fracturing or "fracking" wastes from its water treatment system as a "warning" to out of state gas drillers that might even think about it.


Albany Omitted from Oil Train Speed Limits

For bureaucratic reasons, USDOT has left Albany off the list of places subject to limits on oil train speeds.


Are Crude Oil Shipments Decreasing?

Nationwide, crude oil shipments appear to be decreasing.


Crude Oil train Fees Go Up

Despite federal regulatory pre-emption, NY can and has raised the fees charged for crude oil transported through the state.


Oil on the Hudson!

While crude oil trains have been the focus of regulatory scrutiny, oil transport on the Hudson River remains of great concern due to the risk of spills.


The Two Sides of NED

The proposed Northeast Energy Direct (NED) natural gas pipeline illustrates the arguments both pro and con regarding natural gas pipelines.


Nuke Bailout Contemplated

State officials are weighing whether rate payers should bailout a failing Rochester nuclear power plant.


People in the News

New Attorney for EDNY

Kelly T. Currie has been appointed Acting US Attorney for the Eastern District of NY. His biography does not suggest extensive environmental experience.


State & Local Enforcement

NY Attorney General's Office Enforcement Summary

In honor of Earth Day, NY Attorney General Schneiderman has listed the numerous recent environmental accomplishments of his office's Environmental Protection Bureau (EPB).


Federal Enforcement

Guilty Pleas in Biodiesel Fraud Scheme

Defendant and two related New Jersey companies pleaded guilty in a scheme to defraud biodiesel buyers and U.S. taxpayers by fraudulently selling biodiesel incentives.


Failure to File Asbestos Notice

The EPA continues to investigate the demolition of the closed Beech-Nut plant in Canajoharie, NY for the failure to file proper notice of an asbestos abatement in violation of the CAA. This issue is illustrative of the many obstacles facing businesses that hope to revive historical industrial sites in the state.


Boat Sewage Ban Proposed for Finger Lakes

At the request of DEC, the EPA has proposed a ban on boat sewage dumping in Lakes Seneca and Cayuga.


Improper Pesticide Use in the Virgin Islands and Puerto Rico Alleged

EPA continues to investigate the improper application of the dangerously toxic pesticide methyl bromide in various locations in these otherwise tropical paradises.


OSHA & NYSDOL Enforcement

NYSDOL Eliminates 57 Fees

The NYS Department of Labor ended the collection of 57 mostly strange and obscure business fees (many environmental in nature) as part of the 2015-16 state budget. New Yorkers will save approximately $3 million annually. My favorite cancelled fees: The annual Antique Boiler and Steam Engine Inspection fee; The Podiatry Arbitration Request Fee; and the ever popular Laser Regulation Permit Fee.


DEC Region 4 Administrative Orders

In the Matter of Seward Sand & Gravel
Order on Consent
DEC File No. R4-2013-0916-115

Respondent was assessed a civil penalty of $4,750, with $3,000, suspended for violating a special condition of its mining permit by disposing unauthorized flood debris in the mine in violation of ECL Article 23, Title 27.


In the Matter of Sonny & Sons Stone Co.
Order on Consent
DEC File No. R4-2014-1024-159

Respondent was assessed a civil penalty of $10,000, with $8,000, for the failure to properly and timely complete a bluestone mine reclamation plan in violation of ECL Section 23-2711-12-a, due to the off-site disposal of waste rock.


In the Matter of The Home Depot
Order of Consent
DEC File No. R4-2015-0306-25

Respondent, a national chain retailer, violated 6 NYCRR § 659.1, which prohibits the selling of household cleaning products containing more than 0.1% of the contents by the weight of the element phosphorous." Note: this matter concerns a rarely enforced water pollution control regulation which is subject to a special enforcement provision at ECL 71-3103, which caps a first violation at $2,500.00 (the assessed civil penalty in this case).


In the Matter of R.J. Valente Gravel
Order of Consent
DEC File No. R4-2014-0124-11

Respondent, mining concern, was assessed a civil penalty of $14,000.00, with $4,000.00 suspended for numerous violations of the state's mining and reclamation and water pollution laws. Mining violations of the Respondent's permit conditions included: the negligent handling and disposal of mining and solid wastes; violating the mine's land-use plan, 6 NYCRR Part 422.1; failure to comply with a previous consent order; and unpermitted discharges to state waterways as per ECL 17-0511.


In the Matter of Midstate Pest Control
Order on Consent
DEC File No. R4-2015-0130-7

Respondent, a pesticide applicator, violated 6 NYCRR 325.2 by failing to adhere to label directions for the pesticides applied; and to provide the property owner with copies of the product labels of the products applied in violation of ECL §33-0905(a). A civil penalty of $6,000.00, was assessed. The violations stemmed from a bed bug outbreak in a local motel.


In the Matter of SIMONIZ USA
Order on Consent
DEC File No. R4-2015-0130-6

Respondent, a nationally known manufacturer of car care and janitorial products, was found to be in violation of ECL 33-1301(1)(a), for the distribution and offer for sale of Simoniz Foam Disinfectant, which is an unregistered pesticide in New York. An investigation revealed that almost 900 containers of the product were shipped into NYS in the Fall of 2014.


DEC Administrative Enforcement Orders, Decisions and Rulings

In the Matter of Franco, Edivane and Franco, Ubirajara
DEC Case No. R1-20070830-252
ALJ Ruling, April 20, 2015

An extreme example of administrative delay is illustrated in this case which has its roots in a Riverhead Respondent's attempt to build a swimming pool and related improvements on or near a regulated freshwater wetland in 2003. A number of consent orders, permits and enforcement proceedings ensued over the years. The latest presiding ALJ has finally ruled for a partial summary order for DEC staff for violations of 6 NYCRR Part 663 and ECL 24-0701. Rulings on penalties and mitigation were denied due to issues of fact and the matter continues. My educated guess is that the lack of DEC staff and/or staff turnover played a significant role as this saga enters its thirteenth year.


In the Matter of 444-451 Orange Buildings Housing Development Fund Corporation
DEC Case No. PBS 2-601054NYW
Order, March 10, 2015

The Commissioner ordered a default judgement pursuant to 6 NYCRR 622.15, and awarded a judgment of $10,000.00, against Respondent for violations of ECL 17-1009 and 6 NYCRR 612.2(b) for failing to re-register its NYC petroleum storage facility within 30 days of the transfer of ownership of the facility to it in 2004.


In the Matter of Adonai Realty L.P.
Commissioners Order, March 10, 2015
DEC Case No. PBS 2-601115NYW

Respondent violated ECL 17-1009 and 6 NYCRR 612.2(b) by failing to re-register its petroleum storage facility, located in the Bronx, within 30 days of the transfer of ownership of the facility to the Respondent within the 2004 calendar year. The Commissioner granted the DEC staff motion for a default judgment pursuant to 6 NYCRR Part 622.15, and assessed a $10,000, administrative penalty according to the department's PBS enforcement guidance.


In the Matter of Exeter 13172 De, LLC
Commissioner's Order, March 10, 2015
DEC Case No. PBS 2-607789NAL

Respondent violated ECL 17-1009 and 6 NYCRR 612.2(b) by failing to re-register its petroleum storage facility located in the, Bronx, within 30 days of the transfer of ownership of the facility to it. The Commissioner granted the DEC staff motion for a default judgment pursuant to 6 NYCRR Part 622.15 and assessed a $5,000.00, administrative penalty according to the department's PBS enforcement guidance.


In the Matter of Hill, Lance
Commissioner's Order, March 10, 2015
DEC File No. R4-2012-1129-111

The Commissioner granted a Motion for a Default Judgement and assessed a $10,750.00, penalty for Respondent's five PBS violations including:

  • 6 NYCRR 612.2(a)(2), failing to timely renew the PBS facility's expired registration;

  • 6 NYCRR 612.2(d), failing to notify Department staff of a substantial modification to the PBS facility, specifically the removal of two above-ground storage tanks;

  • 6 NYCRR 613.9(b), failing to properly permanently close three above-ground storage tanks;

  • 6 NYCRR 613.6(c), failing to maintain monthly inspection reports for the facility's above-ground storage tanks for at least ten years; and

  • 6 NYCRR 613.3(c)(3), failing to install overfill prevention systems on four above-ground storage tanks.


In the Matter of Edkins Scrap Metal Corp., et al
ALJ Ruling, March 10, 2015

Department staff's motion for an order without hearing was partially granted on the issue of liability for the following violations stemming from the unlawful placement of fill in a regulated tidal wetland including:

  • ECL 25-0401 and 6 NYCRR 661.8 and 661.5(b)(30) for placing fill in a regulated tidal wetland and tidal wetland adjacent area without a permit;

  • ECL 15-0505 and 6 NYCRR 608.5 for placing fill in the navigable waters of the State without a permit; and,

  • 6 NYCRR 661.5(b) (48) for operating a commercial non-water-dependent business in a tidal wetland and tidal wetland adjacent area without a permit.


Weird News

Alleged X-Ray Terrorism Case Proceeds

Follow this: As previously reported, an alleged KKK member attempted to supply an X-ray weapon of mass destruction to perpetrate all kinds of racist mayhem. Previous sources referred to the weapon as a "ray-gun." It is laughable until you realize that one defendant has already pleaded guilty in this NDNY case.


More Cashing in on Bigfoot

Another upstate NY community is attempting to monetize its purported relationship with the big guy. Recall an earlier post about the Annual Bigfoot Symposium in Chataugua.


Buffaloes Attempt to Evade Thruway Tolls

An escaped buffalo (American Bison) herd swam across the Hudson River and was tragically executed by hunters just short of rushing into traffic on the NYS Thruway. You read that right!


The Last Rhino Standing

In the saddest post of the month, armed guards have been deployed to protect the last known male member of an African Rhino sub-species from relentless ivory poachers.


Beware Bold Coyotes

Recent Update posts have dealt with the urban invasion of these secretive predators. Now, DEC has issued public guidance on how to address wayward coyotes including those exhibiting "bold" behaviors (like the individual recently photographed on a Queen's NY roof top).


EPA Administrator Appears with X-Rated Hip Hop Acts

EPA Administrator Gina McCarthy appealed to young people at the "environmental justice" Broccoli festival to raise awareness about climate change. A classical music concert it wasn't.


Moose stabbing - Huh?

Three Alaskans were arrested for assaulting and stabbing a moose! Their motives were unknown but Alaskan winters are very long.


Haunted Landfill on Staten Island?

In another sad legacy of the 911 attacks, a new book alleges that the Fresh Kills Landfill is haunted. Recall that the closed landfill was reopened to receive excavated rubble from Ground Zero.


Breaking Bad at Walmart!

A dismantled methamphetamine lab was discovered in a backpack in an Indiana Walmart restroom apparently used to manufacture the stuff. Aside from the environmental and public health issues, can the end of civilization be far off?


_____________________________________________________________________________________________________________________

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.

June 21, 2015

NY Environmental Enforcement Update March 2015, Vol. II, #3


By Michael J. Lesser, Environmental Law Section, NYSBA © 2015

Enforcement News

Dirty Fuel Oil Scam in NYC

Prosecutors are investigating the city's largest fuel oil companies for allegedly taking worthless, but hazardous, waste oil and "blending" it with fuel oil before delivering the diluted and adulterated product to customers. Victims were allegedly defrauded of millions of dollars for purchasing the bad oil.

Note: Historically, these crimes have occurred when low oil prices also diminish the used oil recycling market.


Nanotech Chemical Reporting Proposed

The EPA proposed a one-time reporting and record keeping requirement on nanoscale chemical substances to assist in its continued evaluation of the materials used in the growing NY "nanotech" industry. Can further regulatory oversight be far behind?


Radioactive Wastes on the Move

Knoll Atomic Power Lab, a cold war era nuclear research facility, is seeking the permission of local governments to transport radioactive wastes by rail for disposal, including the Town and Village of Corinth. The Department of Energy (DOE) run facility has been fined in the past for radiation releases. Shipments from the facility could start this spring and continue through mid-2017.


Storm Water Pond Pollution! Who is Responsible?

A lawsuit has been filed by residents of Greenbush living downstream of a municipal retention pond against the town. This item is indicative of the state's growing issue about the responsibility (and liability) for maintaining long standing storm water retention ponds, recharge basins and related infrastructure. These fixtures of suburban development are often neglected and become contaminated waterways or other nuisances.


53 NY Agencies Sign Invasive Species Agreement

Governor Cuomo announced an agreement among 53 New York State agencies, municipal governments and other stakeholders to prevent the introduction and spread of aquatic invasive species in the Adirondack region.


NY Court Says Exxon Must Pay Tax on Spill Enviro-Monitoring

The NY Appellate Division ruled that Exxon Mobil Corp. must pay a $500,000 New York sales tax assessment on environmental monitoring and testing at several past oil-spill locations, rejecting arguments that those activities were not technically part of the cleanup efforts thereby making these costs tax-exempt.


Energy Enforcement

US Senators Demand Safe Oil Trains Now!

Seven U.S. senators,including NY Senators Gillibrand and Schumer, asked the federal Office of Management and Budget to quickly finalize new comprehensive standards for crude oil rail tanker cars.

In related news, senators have also introduced legislation that would tighten regulation over crude oil trains including an immediate ban on older - and more prone to puncture - oil tank cars involved in several recent rail accidents and explosions.


NY Rail Inspections Continue

NYS continues to vigorously exercise its limited authority to inspect and report crude oil train violations.


Can NY Ban Oil Trains?

An attorney for groups that support a ban on crude oil trains using the ECL Summary Abatement (ECL 71-0301) process sets forth the legal basis for his claim.


Constitution Pipeline Woes

Over 600 land owners have refused to sign Right of Way Agreements to allow passage of the proposed Constitution Pipeline for natural gas. The refusals have led to condemnation proceeding under the Natural Gas Act.

In related news, the pipeline generated over 5,000 comments (most against the pipeline).


People in the News

USDOJ's Cruden to Focus on Bringing Bad Actors

The new USDOJ ENRD Director John Cruden will have a full agenda as he assumes supervision of the 400 attorneys of the Environment and Natural Resources Division (ENRD) and the 6,000 open environmental cases or investigations now before the USDOJ.


State and Local Enforcement

Alleged Roberto Clemente Park Dumper Hit with Tax Charges

A Suffolk County man previously indicted for illegally dumping asbestos contaminated fill at a Brentwood soccer field in Central Islip was arrested today on charges of not filing state income tax returns and filing a false income tax return and failing to pay personal income state taxes.


Staten Island Mystery Poacher Apprehended

In a rare occurrence of urban poaching, an alleged deer poacher set up shop in a borough of NYC.


Federal Enforcement

Wood Pallett Recycling Co. Criminally Fined $100,000

Defendants pleaded guilty and were sentenced in Eastern District U.S. District Court to the falsification of certificate stamps in violation of the Plant Protection Act. The company will pay a fine of $100,000, and the individual defendant will pay $1,000 and serve three years of probation. The U.S Department of Agriculture (USDA) requires the heat treatment of wood pallets used in international commerce to prevent the spread of parasites.


UST Violator to Spend $1.6 Million on Compliance at 125 Gas Stations

A settlement resolved alleged Resource Conservation Recovery Act (RCRA) violations at 31 gas stations in Puerto Rico and four gas stations in the U.S. Virgin Islands that use underground storage tanks (USTs). The violator agreed to pay a $426,000 civil penalty, implement compliance measures valued at approximately $1 million and undertake a supplemental environmental project (SEP) consisting of a centralized monitoring system estimated to cost approximately $600,000. A SEP is the rough equivalent of a NYS EPB.


DEC Region 4 Administrative Orders

We periodically remind readers that the DEC Region 4 office is the only regional office (of nine) that routinely posts administrative enforcement consent orders for entered for violations of the environmental conservation law (ECL). While the bases of these settlements are not binding on other DEC enforcement units, these do provide a valuable window into the department's overall enforcement and penalty policies.

In the Matter of Fred Edwards
Order on Consent, No. R4-2013-0912-l 14
March 9, 2015

A property owner in Palenville, was assessed a civil penalty of $2,000, with $9,000, suspended for the placement of unauthorized fill in classified freshwater wetland without a permit in violation of 6 NYCRR 663.4(d)(20).


In the Matter of the Gallivan Corporation
Order on Consent, No. R4-201 4-0812-134
March 9, 2015

A commercial pesticide applicator was assessed a civil penalty of $1,000, for the failure to post a visual notice marker on a Schenectady property subject to treatment in violation of 6 NYCRR 325.40(h)(2).


In the Matter of Hillside Commons Oneonta
Order of Consent No. R4-2014-0623-125
March 4, 2015

Respondent was assessed a payable civil penalty of $11,000, with an additional $10,000 suspended for several violations of its storm water pollution prevention plan (SWPPP), which was part of its SPDES water pollution permit. Respondent operated a construction site adjacent to waterways that lead to the Susquehanna River.


DEC Administrative Enforcement Orders, Decisions and Rulings

In the Matter of Furs By GiGi, Ltd.,
DEC Case No. PBS 2-607525AL
Commissioner's Order, March 4, 2015

The Commissioner granted DEC staff's motion for a default judgment pursuant to 6 NYCRR 622.15, for failing to answer or appear in this proceeding and was then held to have violated ECL 17-1009 and 6 NYCRR 612.2 for failing to renew the petroleum bulk storage registration for a petroleum storage facility in Flushing, New York. Respondent was assessed a civil penalty of $7,500. Staff had also moved to unilaterally reduce the original recommended penalty of $10,000, to conform to penalty guidelines.


In the Matter of Gilray, Thomas A.
DEC Case No. 2520-2013DK
Commissioner's Order, March 4, 2015

The Commissioner granted staff's motion for a default judgment pursuant to 6 NYCRR 622.15, for failing to answer or appear and assessed a civil penalty $1,500, for the failure to timely file a complete and accurate annual well report for certain wells in violation of 6 NYCRR 551.2(b) for failure to timely file a complete and accurate annual well report for oil or gas wells in Allegany County.


In the Matter of Accardi, Salvatore
DEC File No. R2-20120807-484
ALJ Ruling, March 2, 2015

This Ruling demonstrates the exacting factual standards necessary for the DEC staff to sustain a motion for an order without hearing. Here, the motion was denied. DEC had alleged liability for numerous tidal wetland violations based on recreational construction on property adjacent or near a part of Jamaica Bay. However, the department's affidavits were not clear as to the precise identification of the waterways and wetlands areas impacted. The matter will be rescheduled for a formal administrative hearing.


Weird News

China Cracks Down on Pollution

In the past, these posts have taken China to task for its severe pollution issues. However, Chinese President Xi Jinping recently called for an "iron fist" crack down on polluters. New policies include the Environmental Protection Law and the Clean Air Action Plan. Readers may recall that, theoretically, China also allows the death penalty for environmental crimes.


Coyotes Now Invade the Bronx

These elusive, yet ubiquitous, creatures continue to adapt to urban living.


A Litter Box upon Your House!

A disgruntled upstate NY politician apparently has been getting even with his adversaries by allegedly (and unlawfully) dumping his cat's litterbox contents onto their lawns. He was undone by covert police surveillance of the situation. Really folks, I do not make this stuff up.


Paris Air Pollution Rivals China's

Surprisingly, Paris, France is challenging China for having the most polluted air.


Geo-Magnetic Storm Hits Earth!

We earthlings sometimes forget that our environment can include extreme extraterrestrial forces.


Will There Be a Shower Police?

To combat water waste, EPA has authorized a university a grant to develop a device to monitor water usage by motel guests. Prepare for more stories like this due to the severe California drought.


Manatee News

In an odd conflict of environmental goals, proponents of a coal burning power plant argue that the plant should remain open as endangered manatees benefit from the warm water outflow from the plant.

Meanwhile, an environmental group has indicated that it will sue the federal government to ban the issuance of permits that allow swimming with manatees. The condition of these gentle creatures is often used as a bell weather of Florida's environmental quality.


Elephants Gone from the Big Top

Ringling Brothers and Barnum & Bailey Circus will drop elephants from circus performances ending over a century of circus tradition. The remaining elephants will be retired to an elephant preserve in central Florida.

April 19, 2015

Message from the Incoming Environmental Law Section Chair, Michael J. Lesser


I have been afforded the honor and privilege of becoming the latest Chair of the Environmental Law Section of the New York State Bar Association. I wish to begin by thanking the outgoing Chair, Terresa Bakner, for her patience and leadership in guiding our section. Specifically, Terresa has undertaken the less than glamorous tasks of restructuring our committee system, undertaking financial reform, improving diversity and reviving our membership efforts with great success. These goals will continue to be my objectives in the 2015-2016 term. In addition, improving section communications will be added to the list of imperitives.

In regards to these issues, I also wish to recognize and thank Carl Howard and Kevin Reilly, the past Chairs I have worked with in the section cabinet. All the recent section cabinets have recognized the need to aggressively address these important issues.

The incoming 2015-2016 officers also are committed to continue the pursuit of these goals. The new section officers will include: Larry Schnapf, Vice Chair; Kevin Bernstein, Treasurer; and, Marla Wieder, Secretary. Linda Shaw will be our delegate to the NYSBA House of Delegates. Past Chair Gail Port has also agreed to assist me as the Section Counsel. In addition, past section chair Phil Dixon will continue to be our liaison to our valued sponsors. Finally, our Diversity Committee co-chairs John Greenthal and Joan Leary Matthews will continue to assist the executive board with the improvement of our programs and membership efforts.

We are also fortunate to have hard working members who contribute to our various media outlets including: the Editor-in-Chief of the Environmental Lawyer, Miriam Villani; Sam Capasso as the Editor of "Envirosphere" our section blog; and, Larry Schnapf in the new role of the section's LinkedIn and social media manager. I will also continue to act as the chief cook and bottle washer for the monthly "NY Environmental Enforcement Update" which is also edited by Sam Capasso and posted monthly on our blog.

Finally, I wish to warmly thank Lisa Bataille, Kathy Plog, Lori Nicoll, Vincent Titus and many others at NYSBA for past and future assistance with the operation of the section. Their participation and wisdom has been and continues to be simply indispensable.


Upcoming Section Events

To improve the quality of our services to section members, the cabinet and executive committee has determined that more frequent and varied programing is necessary. These themes will also enhance our membership and diversity efforts. In this regard, I have tasked incoming Vice Chair Larry Schnapf to improve our visibility in social media and other electronic and conference media such as webinars. This is not as easy as it sounds given the financial and administrative constraints of the bar association framework. But Larry remains resolute and he has already jump started our outreach and communication with members.

As an example, on April 1, 2015, more than seventy-five section members participated in a conference call arranged by the Brownfields Task Force regarding the new revised Brownfields Cleanup Program (BCP) statute. As of this writing (early April) the following statewide section events are or were scheduled for the remainder of 2015:

  • April 1 - BCP Update Webinar
  • April 14 - Annual Oil Spill Symposium
  • April 16 - Coastal Resiliency Summit at Tour Law School (Co-Sponsor)
  • May 6 - Legislative Forum: NY Water Legislation (Albany)
  • May 14 - NYSBA Section Leadership Conference (NYC)
  • May 20 - CLE, Survey, N.Y. Regulatory Enforcement Update (NYC)
  • June 24 - Section Executive Committee Planning Retreat (Poughkeepsie)
  • October 2 to 4 - CLE, Environmental Section Fall Meeting (Saratoga)
  • Buffalo Area Fall Law School Mixer (Date TBA)
  • January 25-30, 2016 - NYSBA Annual Meeting
  • January 29, 2016 - Environmental Law Section Annual Meeting

Please note that all future dates and locations are subject to change.


Section Resources (old and new)

As part of our section's themes of membership retention and new membership, this is a good place for members to inventory and take advantage of some of the tangible benefits of section membership. Let us start with the section's website function as a portal to further useful practice information. The Environmental Law Section homepage or website can be reached directly on the internet at: http://www.nysba.org/Environmental/ or indirectly via the NYSBA homepage at: http://www.nysba.org/. All of the following resources can be linked to via the section homepage.


The NY Environmental Lawyer (Online)

One of the section's underutilized secret treasures is the online availability of past issues of the section journal back to 2000. This resource can also be linked via the section's homepage. A word searchable index of the past issues is a key research feature of this resource. Note: direct access to the past issues is a member only benefit and requires a user ID and password (both available via prompts from NYSBA).


Legal Links

The section homepage can also be used to link and access a broad library of legal research and practice information (no password required).


Envirosphere - The ELS Blog

Blog Editor and fellow section member Sam Capasso has helmed our award winning blog since 2013. Among the innovations is the monthly NY Environmental Enforcement Update, a unique stand-alone multiple item blog post that is now in its third year. The blog can be accessed via the website or directly at: http://nysbar.com/blogs/environmental/. All blog items are key word searchable for research purposes. Please contact Sam Capasso if you have any questions or suggested posts at: samcapasso@gmail.com (no password required).


NY Environmental Enforcement Update 2013 Annual Report

The NY Environmental Enforcement 2013 Annual Report, is an outgrowth of the blog's Environmental Enforcement Update and is the first e-book approved and posted by the section. It is a free seventy-seven page download which can be reached from a link on the section homepage. It is also searchable via key word and by subject TAGS (no password required).


LinkedIn (Social Media)

Finally, we are proud to announce that in cooperation with NYSBA, the section has invaded social media via the internet based LinkedIn professional service. Despite the recent startup, over 100 section members have already availed themselves of this professional social media and communication service. A higher social media profile for the section will enhance our existing communications via section blast email and the old listserv technology. The section's LinkedIn site is open to section members only and can be accessed by contacting either Vice Chair Larry Schnapf at Larry@SchnapfLaw.com or NYSBA section liaison Lisa Bataille at Lbataille@NYSBA.org.com. It is also a good time to update or add your email address to the section's records by also contacting Lisa at NYSBA. Visit www.nysba.org/socialmedia for a full list of the New York State Bar Association's social media sites.


I hope this update gives you a glimpse into the dedication of your section officers and extended executive committee in bringing section members new and expanded services and programs. All of these activities will support our section goals of diversity, membership and financial reform. If you have any questions, suggestions or a notion to volunteer to help the section please do not hesitate to contact me at: mlesser@NYCAP.rr.com or (518) 452-5598. I look forward to meeting all of you at future section events.

- Michael Lesser, 2015-2016, Environmental Law Section Chair

April 4, 2015

NY Environmental Enforcement Update, February 2015, # 2, Vol. II


By Michael J. Lesser, Environmental Law Section, NYSBA © 2015

Enforcement News

Polluter to Pay $400k NRD settlement

DEC, the U.S. Fish and Wildlife Service and the U.S. Department of the Interior announced a $400,000 settlement with Honeywell International, Inc. and Amphenol Corporation for injuries to groundwater and natural resources due to the release of hazardous substances at the Richardson Hill Road Landfill Superfund site in Delaware County.

The DEC Commissioner is designated by federal law as the state's Trustee of natural resources.


Bees, Cherries, Pot and Suicide!

Discolored red bees and syrupy pollution run-off led DEC investigators and the Kings County (Brooklyn) District Attorney to execute a search warrant on a maraschino cherry plant in Brooklyn. While looking for environmental violations, the searchers found a large and long rumored, but hidden, marijuana grow farm. When confronted with the discovery, the plant owner immediately committed suicide in a sad ending to a strange enforcement story.


Indian Point ALJ Rules Power Outages Possible

A DEC Administrative Law Judge (ALJ) issued a preliminary ruling to allow further evaluation of permanent forced outages as one alternative to reduce the impacts to aquatic life caused by the Indian Point nuclear power plant in Westchester County. The ALJ issued this ruling as part of the ongoing administrative hearing on the issuance of a water pollution permit for the Indian Point facility which is adjacent to the Hudson River.

DEC issued a special statement to explain the ramifications of the controversial holding as the plant generates a significant percentage of the state's electricity. Many NY political and civic leaders are opposed on principle to the federal NRC re-licensing of the same plant.


Chain Store Passes on Dry Cleaner Clean Up

In what seems like a monthly cautionary tale about due diligence and former dry cleaning sites, a national pharmacy chain is refusing to support a state-proposed $500,000 cleanup of underground chemical pollution at former dry cleaners location in Colonie, NY. Despite the discovery of potential contamination as early as 2003, the chain still purchased the site in 2008, and may still incur state enforcement for part or all of the remediation costs.


Missing Fish and the US Supreme Court

In US v. Yates, the U.S. Supreme Court overturned the conviction of a Florida fisherman who allegedly dumped three undersized fish because an anti-shredding (evidence destruction) provision of the Sarbanes-Oxley Act does not cover all physical evidence. The Court held that Section 1519 of the act (the anti-shredding provision) was improperly used by government lawyers to prosecute John Yates for allegedly tossing three red groupers overboard after a US Fish and Wildlife officer caught him with the illegal catches and ordered him to keep them as evidence. The Act was intended to police corporate financial shenanigans and is rarely - if ever -used for environmental enforcement.


Appeals Court Reverses NY Dam Enforcement Action

In Berger v New York State Dept. of Envtl. Conservation, 2015 NY Slip 0p 01496 App Div, Third Depart., DEC was held to have erred in determining that property owners were liable for operating and maintaining the Honk Falls Dam in Wawarsing, NY after the dam had been designated as a hazard. Therefore, the owners were not liable for $500,000 in financial assurance and a civil penalty of $116,500.


Major NY Air Regulatory Changes on the Way

DEC is seeking to establish a toxic best available control technology (TBACT) standard for toxic air contamination among other changes for demonstrating compliance with the regulatory standards for air contaminants.


Bribery Alleged by NYC Building Inspectors

In a developing story, the New York County (Manhattan) DA is prosecuting approximately a dozen defendants for allegedly taking and receiving bribes in relation to building construction and renovations.


NY Movement to Ban Microbeads Grows

The opposition to these tiny but numerous water pollutants found in common consumer products continues to drive legislative initiatives in this year's session.


DEC Defends Record of Fracking Waste Regulation

DEC recently felt compelled to defend itself against criticism over the handling of out of state wastes generated by hydraulic fracturing (fracking) by natural gas drilling.


NY Slow to Grant M/C Pay Raises

New York's 10,800, Management Confidential (M/C) state employees have been denied raises since 2009, although pay is to rise slowly over the next seven years. Many M/C employees work at DEC and other related state environmental and health agencies.


Energy Enforcement News

NY Reacts to West Virginia Oil Train Explosion

NY officials urged a ban on Bakken shale crude oil trains traversing the state and entering the Port of Albany after another serious derailment accident and explosion involving oil tank cars in West Virginia.

In related news, NYSDOT Commissioner Joan McDonald and DEC Commissioner Joseph Martens used the West Virginia derailment to renew the state's call for expedited federal regulations requiring rail cars to be retrofitted with reinforced steel plates and advanced braking systems.


CSX RR Pays for Crude Oil Tank Car Spill in Virginia River

In more related news, CSX Corporation Inc. was assessed a $361,000 fine by Virginia for an April 2014 spill in Lynchburg, Virginia where more than 29,000 gallons of oil leaked from a derailed oil train into the James River. CSX also operates crude oil trains in New York (and into the Port of Albany).


Feds Predict More Oil Train Accidents

The U.S. Department of Transportation predicts that trains hauling crude oil or ethanol will derail an average of 10 times a year over the next two decades, causing more than $4 billion in damage and creating the potential for hundreds of deaths from accidents in densely populated areas.


Oil Train Foes Demand Legal Enforcement Ban of Oil Trains

Taking an obscure page from NY Environmental Conservation Law (ECL), crude oil train opponents continue to demand that NY ban oil trains outright using a little used legal instrument known as a Commissioner's Summary Abatement Order (see, ECL 71-0301, 6 NYCRR Part 620).


Why Feds Regulate Oil Trains

Given all the recent debate around oil trains, some may wonder how we came to be in the current regulatory relationship. Federal regulatory control of railroads (including crude oil trains) has existed since the 19th century at the expense of state authority.


People in the News

DEC Employee Named Forester of the Year

The New York Society of American Foresters (NYSAF) named NYS Department of Environmental Conservation (DEC) Region 5 Natural Resource Supervisor Tom Martin as its 2014 Forester of the Year.


New Chairs of NY Legislature Environmental Committees Named

Both houses have named new chairs to their environmental committees.

NYS Senator Thomas F. O'Mara (R,C) has been named new chairman of NY Senate Environmental Conservation Committee. He will also serve as a member on nine additional committees including Agriculture, Energy, and Transportation. He represents the 58th Senate District in the Finger Lakes and Southern Tier regions of New York.

NYS Assemblyman Steven Englebright (D) has been named the new chairman of the NY Assembly Environmental Conservation Committee. He represents the 4th Assembly District on the north shore of eastern Long Island which includes the DEC Region 1 office and SUNY Stonybrook.


State & Local Enforcement

North Country Hazardous Substance Dumper Charged

The DEC Bureau of Environmental Crimes Investigation (BECI) charged a Rouses Point man with endangering the public health, safety or the environment in the 2nd degree, a Class D felony among other related charges for the release of hazardous substances. The investigation evolved from the removal of 150 cubic yards of asbestos laden debris to an unpermitted disposal site.


Nassau DA and DEC Arrest Illegal Shellfish Merchant

A local seafood marketer was arrested for the alleged unlawful possession, marketing and sale of shellfish without the proper permits and licenses.

The investigation was conducted in coordination between the District Attorney's office and the DEC including the DEC's Environmental Conservation Police, Bureau of Marine Resources.


Albany DA Convicts Man of Animal Cruelty (P. v. Peterson)

The Defendant pleaded guilty to violating (1) Count of Torturing or Injuring Animals by Failure to Provide Proper Sustenance, a misdemeanor under NYS Agriculture and Markets Law 353, for intentionally depriving and failing to provide proper sustenance to four dogs and nine cats. He was sentenced to serve 60 days and 3 years of probation.

The Albany County District Attorney's office continues to be recognized for aggressively prosecuting animal abusers via that office's Animal Cruelty Taskforce ("ACT").


Federal Enforcement

Wildlife Trafficking Enforcement Plan

A Presidential Task Force issued an Implementation Plan for the National Strategy for Combating Wildlife Trafficking. The Task Force consists of seventeen federal agencies and offices.


NY Landfill Partially Removed From NPL List

EPA proposed the removal of most of a Fulton, Oswego County, New York Site from federal superfund (NPL) list after cleaning up more than 10,000 cubic yards of contaminated soil and approximately 9 million gallons of contaminated groundwater.


OSHA & NYSDOL

NYS DOL 2015-16 Asbestos Budget Testimony

In legislative budget hearings, the NYS Department of Labor (DOL) testified that DOL staff issued more than 38,000 licenses and certifications and processed nearly 70,000 asbestos project notifications in the 2013-14 fiscal year. Staff also conducted more than 1,500 inspections, issued 1,500 notice of violations and issued 1,500 variances related to asbestos.


Region 4 Administrative Orders

In the Matter of Zbigniew Truniarz/Pond Ridge Hunts
Order on Consent, January 30, 2015
File No. R4-2014-1021-158

Respondent was fined $10,000.00, for illegally possessing and breeding Eurasian boars in violation of ECL 11-0514(2) in the Town of Hancock in Delaware County.


In the Matter of NYS Office of Mental Health
Order on Consent, Jan. 20, 2015
File No. R4-2014-0827-142

Respondent's facility was assessed a civil penalty of $2,350, with $1,410, payable and the remaining balance suspended pending compliance with the Schedule of Compliance for nine hazardous waste regulations in violation of separate provisions of 6 NYCRR Parts 372, 373 and 374. Respondent is a NYS agency that operates the Capital District Psychiatric Center in Albany, New York.


In the Matter of GlaxoSmithKline
Order on Consent, Jan. 16, 2015
File No. R4-2014-0922-155

Respondent's facility in Durham, Greene County was assessed a civil penalty of $24,200, for 22 separate hazardous waste management violations in violation of various sections of 6 NYCRR Parts 371,372, 373 and 374. Notably, proper recycling notifications were not submitted for used electronics ("e-waste") in violation of 6 NYCRR §371.1(c)(7).


DEC Administrative Enforcement Orders, Decisions and Rulings

In the Matter of Stalker, Christopher
DEC File No. R4-2013-0409-52
Order, February 17, 2015

The Commissioner granted the Department's motion for a default judgment pursuant to 6 NYCRR 622.15 for failing to answer or appear and was held to have violated 6 NYCRR 613.6(a) by failing to conduct the required monthly inspections of the three above ground storage tanks (AST) in Hillsdale, N.Y. He was assessed a civil penalty of $6,000.


In the Matter of Rasey, Thomas O.
DEC Case No. 2013-2013D
Order, February 3, 2015

The Commissioner granted the Department's motion for a default judgment pursuant to 6 NYCRR 622.15 for failing to answer or appear in this proceeding, and was held to have violated 6 NYCRR 551.2(b) for failure to timely file a complete and accurate annual well report for oil and gas wells in the Town of Allegany, Cattaraugus County. Respondent was assessed a civil penalty of $1,000.


In the Matter of Izzo, Pasquale, Michael Izzo, Ernest Force
DEC Case No. 1-1999-11-05-89
Order of Disposition, January 30, 2015

Unable to find the location of or get a response from a lone Respondent for either service, mediation or enforcement of an Order, the Chief ALJ unilaterally struck this matter from the docket. The underlying action had originally commenced way back in 2000.


In the Matter of North Jersey Trailer & Truck Service, Inc.
DEC File No. C0 3-20140107-01
Commissioner's Order, January 28, 2015

Here, the Commissioner partially reversed the hearing ALJ who had denied staff's motion for a default judgement because staff had not provided a proposed order as prescribed by procedures at 6 NYCRR 622.15[b][3]. The Commissioner also noted that the department's staff failed to submit the required document at the suggestion of the ALJ. Respondent was assessed a civil penalty of $5,000.00, for failing to submit an Annual Certification Report (ACR) to Department as required of water permit holders in violation of 6 NYCRR 750-2.5.


Weird News

Waste Woes for the Wild Alaskan

The owner of a floating strip club (named the "Wild Alaskan") was indicted for releasing sewage into an Alaskan harbor in violation of the Federal Refuse Act, among other water pollution related charges.


Closed Mine Converted to Bike Park

Reclamation and reuse of former mine sites is often difficult and controversial. But here, a former limestone mine was successfully converted into a unique recreational facility for cyclers.


Don't Do It in the Reservoir!

An employee of the City of San Francisco's water utility will be disciplined after being caught relieving himself into an empty city reservoir. Perhaps he was trying to solve California's extreme drought.


Deadly Toxic Air Alleged in Airplanes

A UK coroner's official report recognized "aerotoxic syndrome", as a phenomenon responsible for the deaths of pilots and other incidents where pilots have passed out during flights. The report attributes the cause to long-term exposure to poisoned cabin air.


Giant African Land Snails Now Invade Texas

The Update continues to follow this slowly developing invasive species story as the giant snail has been sighted in at least three states. This eatable West African delicacy was found in the luggage of a traveler from that region. Meanwhile, in South Florida, the giant snail patrol is on the job.


_____________________________________________________________________________________________________________________

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.

March 28, 2015

NY Environmental Enforcement Update January 2015, Vol. II, # 1


By Michael J. Lesser, Environmental Law Section, NYSBA © 2015

Enforcement News

Record $5.15 Billion Environmental Kerr-McGee Settlement

The USDOJ entered a historic settlement with Anadarko Petroleum Corp. and Kerr-McGee for cleanups across the country. The settlement resolves fraudulent conveyance claims brought by the United States and the Anadarko Litigation Trust, against Anadarko in the bankruptcy of Tronox Inc. and its subsidiaries. Tronox had assumed most of the numerous environmental liabilities of the former Kerr-McGee company. The trust will distribute more than $4.4 billion to fund environmental clean-up and for environmental claims including those in New York. The settlement constitutes the largest payment for the clean-up of environmental contamination ever awarded in a DOJ action.


Buyer Beware for Former Dry Cleaner Property

This matter illustrates the importance of due diligence in the purchase of old commercial properties such as this one in Colonie, New York. In such cases, New York's legal, regulatory and real property processes give little or no warning to prospective purchasers about pre-existing environmental conditions which can generate liability and enforcement. DEC has detected PCE and related dry cleaner derived wastes in the ground and groundwater on or near the property.


Governor Issues 2015-2016 Executive Budget

The proposed state budget for the next fiscal year contains substantive environmental and energy provisions including: a revised Brownfields Cleanup Program; increased funding to the Environmental Protection Fund; and significant changes to the oil spill laws, among numerous additional changes. These proposals are outlined in detail starting at p. 83, of the budget program overview.


United Airlines Faces FAA $1.3 Million Haz Mat Fine

The Federal Aviation Administration (FAA) has assessed a $1.3 million fine against United Airlines for alleged hazardous material handling and transport violations, including failing to give pilots accurate information about lithium metal batteries, corrosive liquids and radioactive materials. United Airlines flies to a number of NY airports.


NY and Cal. Retail Chains Pay Fines for Hazardous Waste Violations

99 Cents Only Stores LLC will pay $2.4 million in penalties as part of a settlement to resolve civil charges that the discount retailer improperly disposed of hazardous wastes at its California stores. California continues to lead in the national trend of prosecuting non-industrial parties that handle hazardous wastes in retail settings.

However, the NYSDEC is following this national trend and recently assessed a civil penalty of $27,945 ($25,151, payable) against the CVS drug store chain for a long list of RCRA hazardous waste regulatory violations at five of its retail locations in upstate NY. Essentially, the stores violated numerous provisions of 6 NYCRR Parts 372, 373 and 374, for the improper generation, record keeping, storage and disposal for discarded or returned retail products (such as aerosol cans) which were classified as ignitable (characteristic) hazardous wastes as defined in 6 NYCRR Part 371. A lengthy compliance plan was attached to the settlement.


NY AG Issues Statement on EPA Methane Emission Reduction

The Attorney General supports the EPA proposed regulations that will require new and modified equipment to limit petroleum industry methane emissions under the Clean Air Act.


NY AG Supports Public Waterway Right of Travel

The AG and DEC prevailed in litigation before the Appellate Division Third Department, to establish and maintain the public's right to travel on recreational navigable state waterways(see underlying Supreme Court Decision, Friends of Thayer Lake v. Phil Brown).


New Mold Law Signed

The Mold Bill, S3667D-2013, amends the labor law and will provide for licensing requirements and minimum work standards for persons and business entities engaged in mold remediation and mold abatement activities. The Bill was drafted mainly in response to Hurricane Sandy recovery efforts.


DEC 2015-16 Legislative Budget Testimony

Commissioner Joe Martens pontificated /a> on numerous topics about the department's 18 divisions and nine regional offices and the more than 1,900 facilities and 4.4 million acres of land managed or supervised by DEC staff in his legislative testimony. The Commissioner highlighted projects involving water quality, LNG storage, brownfields, and endangered species.


Suffolk Co. Dumping: Environmental Impacts Ensue!

In the wake of the December dumping indictments, the Suffolk County's Health Services Department plans to install temporary wells at Islip Town's Roberto Clemente Park. Wells are also proposed at three related sites where illegal dumping has been alleged. The related criminal prosecution is pending.

In related news, DEC has approved the Clemente Park cleanup plan. Excavation of the illegal fill materials is anticipated.


Feds Investigate Troy Asbestos Handling

Federal and state investigators continue to probe the handling and disposal of asbestos at several municipal owned demolition sites in the City of Troy. Clean Air Act (CAA) NYS Labor Law violations are suspected.


Emerald Ash Borer Task Force Formed

DEC has stepped up its efforts to check the spread of this destructive invasive species that threatens the state's ash tree population. Enforcement measures will include continued regulation of the movement of fire wood in state.


Lake Ontario News

Stakeholders have submitted "Plan 2014" for consideration to the International Joint Commission for the rehabilitation of the Lake and its shorelines. The Plan's advocate, Stuart Gruskin, is the chief conservation and external affairs officer at The Nature Conservancy New York, and the former executive deputy commissioner of DEC.


NYS E-Waste Law Now in Effect

Both individuals and business should be aware of the restrictions on the handling and disposal of waste electronics that are now in effect. To complicate matters, the recycling industry for old TV and monitor tubes is failing. The lawful disposal of discarded TV tubes will be difficult and expensive in the near future.


Smoking Banned in Albany City Parks

Albany joins several other Capital area communities in banning all smoking outdoors in city parks. The fine for violators is $50.00.


Road Salt in Lake George

Harsh winters often result in environmental harm via road salt laden run off water pollution into state waterways. Lake George is no exception. Though seasonal, road salt pollution enforcement is also a real possibility.


DEC Announces Excellence Awards

The DEC recognized a number of organizations for innovative programs and environmental improvements. Among the winners are those that improved recycling programs and limited CO2 generation.


Energy Enforcement

Safe Oil Train Rules Delayed!

The USDOT has delayed the issuance of updated safety standards for transporting oil by rail to May 2015, despite public calls for swift action.


Constitution Pipeline Opposed

Despite the NY ban on the use of hydraulic fracturing (fracking) for natural gas extraction, the fight to prevent two proposed fracked gas pipelines that would enter NY from Pennsylvania continues.


People in the News

Former Governor Mario Cuomo and Two DEC Officials Pass Away

Former Governor Mario Cuomo died Jan. 1 as a result of heart failure. Among the many environmental accomplishments achieved by the state during his three terms in office were the creation of the Environmental Protection Fund and the passage of the 1986 Environmental Bond Act.

Two prominent former DEC officials also were recently deceased. Richard Williams served for many years in the Office of General Counsel as the department's bond and enforcement counsel. John DuPont served as editor of "The Conservationist," the official DEC magazine for almost two decades. The Section extends its condolences to their families and friends for their long service and many contributions to environmental quality.


State Office Appointments Announced

Governor Andrew Cuomo made numerous appointments and nominations to various state offices. Those relevant to public health, energy and the environment included:


  • Howard Zucker, nominated to serve as Commissioner of the State Department of Health;

  • Floyd Flake, appointed to serve as a member of the Public Service Commission;

  • Peter Walke, appointed Assistant Secretary for the Environment in the Governor's office; and,

  • Suzanne Beddoe, appointed as Senior Vice President and General Counsel of the Environmental Facilities Corporation

.

State & Local Enforcement

Asbestos Inspectors Arrested

The Richmond County (Staten Island) District Attorney arrested two asbestos inspectors for submitting fraudulent reports at a Staten Island construction project. Both workers and nearby residents may have been exposed to toxic asbestos.


Summer Flounder Seized in Winter

Two fishermen were charged with misdemeanor illegal commercialization of wildlife when DEC Environmental Conservation Officers (ECOs) caught them violating summer flounder trip limits when their boat returned to port in Southampton in Suffolk County. Almost 400 lbs. of illegally caught fish was seized and donated to charity.


DEC Regional Conservation Police Issue Enforcement Reports

Several DEC Regional law enforcement offices have issued annual reports. This is a sad reminder that a comprehensive statewide annual report has not been publically issued by the department's Division of Law Enforcement (DLE) in almost four years.

APA Enforcement News

The 2014 Adirondack Park Agency Annual Report and the 2014 Division Reports are now available. The Legal Division Reports can be found on page 13 of the Annual Report and page 30 of the Division Reports.


Federal Enforcement

Shell Penalized $900K For Selling Non-Compliant Fuel

The EPA entered into an administrative settlement agreement with subsidiaries of the international gasoline refiner and retailer Shell Oil to pay $900,000 for allegedly selling gasoline and diesel fuel that didn't comply with federal emissions standards in violation of the Clean Air Act.


Criminal Ricin Buy Thwarted!

A man was indicted in the SDNY for attempting to buy the deadly toxin ricin and committing postal fraud. The suspect attempted to acquire ricin via the "Dark Web" which is described as a vehicle used by criminals to buy and sell illegal and potentially dangerous merchandise.


EPA Region 2 Fines DuPont for CAA Violations

DuPont has been fined $531,000 for alleged Clean Air Act violations at its chemical manufacturing plant in Deepwater, New Jersey for the improper maintenance and repair of two large refrigeration units. Poor maintenance can allow chlorofluorocarbons (CFCs) to be released into the environment.


Region 4 Administrative Orders

In the Matter of CVS Caremark
Order on Consent
File No. R4-2014-0122-9

As predicted in previous blogs, the DEC is following this national trend and recently assessed a civil penalty of $27,945 ($25,151, payable) against the CVS drug store chain for a long list of RCRA hazardous waste regulatory violations at five of its retail locations in upstate NY. Essentially, the stores violated numerous provisions of 6 NYCRR Parts 372, 373 and 374, for the improper generation, record keeping, storage and disposal for discarded or used-returned retail products (such as aerosol cans) which were classified as ignitable (characteristic) hazardous wastes as defined in 6 NYCRR Part 371.


In the Matter of Adirondack Pest Control
Order on Consent
File No. R4-2014-1031-163

A certified pesticide applicator was assessed a civil penalty in the amount of $12,500 of which $6,000 is payable with the balance suspended for compliance with the Schedule of Compliance for the failure to keep proper application records in violation of 6 NYCRR 325.25(a).


In the Matter of Deposit Wood Pellet
Order on Consent
File No. R4-2014-0818-138

A Delaware County wood pellet manufacturer modified air pollution control equipment without submitting a permit modification application in advance of making the changes in violation of 6 NYCRR 201-5.4(a) and 6 NYCRR 201-5.4(b). The company was assessed a civil penalty of $5,000.00.


In the Matter of Jeff Wyskochil
Order on Consent
File No. R4-2014-1113-167

A Rensselaer County resident was assessed a civil penalty of $3,000.00 for the unpermitted operation and installation of an uncertified outdoor wood boiler (OWB) in violation of 6 NYCRR §247.3(a).


In the Matter of Annmarie Ennis
Order on Consent
File No. R4-2014-1031-161

A Delaware County landowner was assessed $2,500.00, with $1,500.00, suspended for disturbing the bed and banks of a stream without an Article 15 permit, a violation of 6 NYCRR 608.2(a).


In the Matter of Frank Wright
Order on Consent
File No. R4-2014-0917-151

Respondent was assessed a civil penalty of $1,000.00, for mining without a permit in violation of 6 NYCRR 421.1 (a).


In the Matter of Red Maple Land Services
Order on Consent
R4-2014-1117-169

An Albany County commercial pesticide applicator was assessed a $1,500.00, civil penalty for Pesticide violations for the failure to maintain proper records and a written contract in violation of 6 NYCRR §325.25(a) and 6 NYCRR §325.40(a), respectively.


DEC Administrative Enforcement Orders, Decisions and Rulings

In the Matter of Galloway
Commissioner's Order
DEC Case No. R6-20100629-21, PBS No. 6-141186
January 16, 2015


What happens when an alleged ECL violator is in jail and unable to appear or submit an Answer? As you might expect, the Respondents (the operator and his wife as co-owner) were held liable despite his incarceration and ordered to close their three petroleum bulk storage (PBS) tanks in ninety days. They were also assessed a civil penalty of $5,600.00, of which half was suspended upon compliance, based on a number of regulatory violations of 6 NYCRR Part 613. A motion for a default judgment pursuant to 6 NYCRR 622.15 was also granted. However, Respondent is not scheduled to be released from prison until 2017.


Weird News

Is Beijing Unlivable Due to Air Pollution?

We should all take notice when no less an authority than Beijing's Mayor pronounces that his City is unlivable due to heavy air pollution.


New Chinese Export: Pollution

After absorbing the previous item, be aware that China's solution to pollution is to move its polluting factories to other countries. Good thinking!


Chinese Man Builds Homemade Electric Car

Despite the above items, all is not lost on the Chinese pollution front. A Chinese carpenter built an all wood, zero emission electric car capable of 30 mph at a cost of roughly $3,200.00. Elon Musk (builder of the luxury Tesla electric car), take notice!


Vultures Invade Guilderland, NY

One of my hometown neighbors likes to feed the local vultures (birds, not people) resulting in a disgusting mess. Feeding vultures is legal in NY (of course).


Coyotes in NYC

The call of the wild has reached lower Manhattan.


Beavers Blamed for Climate Change

You just knew it would come to this.


_____________________________________________________________________________________________________________________

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.

March 22, 2015

Clean Water NY: What actions are needed to ensure sustainable water resources in the 21st Century?


Legislative Forum
May 6, 2015

Environmental Section
New York State Bar Association

Water is essential for life. It is essential for a healthy environment and a healthy economy. In contrast to water issues endemic to many other states, such as severe water shortages in California, or impaired water quality in the mid-West, New York is unique in that it boasts an abundant, high-quality water supply. This year's forum will explore the future of water sustainability in New York State. Aging water infrastructure, changing weather patterns, and new approaches to community resiliency are some of the significant issues that may impact our State's water quality. The panel will explore the following topics:


  • What laws and policies should be in place, now, to ensure clean water for future generations?

  • Should progressive water efficiency goals be state law mandates?

  • Is there a correlation between water conservation goals and energy policy in New York?

  • What is the role of regionalization in planning for drinking water and wastewater infrastructure?

The Environmental Law Section's Annual Legislative Forum

Over the past several years, the Annual Legislative Forum has presented debate and insight from lawmakers, policy makers, and the current administration, as well as from business and advocacy organizations, on environmental issues critical to the Empire State. In 2013, the forum focused on statewide preparedness for extreme weather events following Hurricane Sandy. In 2014, panelists discussed safety and environmental challenges in light of the unprecedented increase of oil transportation across the State. The purpose of the forum is to provide a balanced and insightful discussion on issues that are currently or will likely become state legislative priorities.

John Parker, Co- Chair, Legislative Committee

Jill Kasow, Co-Chair, Legislative Committee

May 6, 2015
10 am to 1 pm

A Forum and Luncheon

New York State Bar Association

One Elk Street, Albany, New York

(Originally posted by John Parker)

February 22, 2015

NY Environmental Enforcement Update December 2014 # 24


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

Enforcement News

NY Bans Fracking

New York's six year environmental review of high-volume hydraulic fracturing (a/k/a fracking) for the extraction of natural gas ended when Governor Cuomo essentially banned fracking in the state. State officials determined that there were still too many unanswered health and environmental questions to allow the practice to proceed. NY is the only state to ban the procedure thus far. The determination is based on the December 2014, NYSDOH health study issued on the subject.


ExxonMobil Funds More Awards at Greenpoint

The NY Attorney and the DEC announced $11 million in the latest round of grant awards made by the Greenpoint Community Environmental Fund (GCEF), a $19.5 million environmental improvement fund created from money obtained by the state in a 2011 settlement with ExxonMobil over its massive historic oil spill in Greenpoint, Brooklyn. These projects include a roof top outdoor classroom for school children, planting trees, and improving waste water management. This is unique variation of an environmental benefit project (EPB) to resolve an enforcement case.


EPA Will Treat Coal Ash as Solid Waste

EPA will regulate coal ash as solid waste rather than as more strictly controlled (and expensive) hazardous waste. By choosing to regulate coal combustion residuals under Subtitle D of the Resource Conservation and Recovery Act (RCRA), the EPA has put it to the states to decide if they want to establish permit programs. This ruling will be helpful to NY facilities that use coal ash.


2500 PEF Members to be Re-classified as Non Union Managers

In a bombshell determination , the Governor's office has determined that up to 2500 current union members of the Public Employees Federation (PEF) are to be reclassified as "at-will" management-confidential employees. An unknown number of those impacted work for DEC and other state environmental agencies. A legal challenge by PEF is likely.


NY Court of Appeals Upholds DMV Inspection License Revocation

The NY Court of Appeals upheld an administrative determination by the NYS Department of Motor Vehicles (DMV) to revoke the certified state inspection license of a Menands, NY motor vehicle inspection station. The station had been found to be using a donor vehicle to falsify air emission tests. Note, as previously reported by the Update, DEC has also brought administrative penalty enforcement actions against phoney inspection stations for violating NYS air pollution laws.


NY Comptroller Reports DEC is in Trouble

The OSC predicted dire consequences due to long term budget and staff cuts at New York's primary environmental agency.


County Legislature Bans Toxic Toys

Albany County became the first municipality in the NY to ban toys containing toxic materials. The enforcement and interpretation of such stringent local laws is controversial. More local bans are anticipated around the state.


Nanotechnology - the Unknown Health and Environmental Risks

While policy makers in NY have assigned nanotechnology a significant role in the state's economic development, there is still uncertainty about any health and environmental impacts due to the use of this technology. This has some groups, such as the Sustainable Investments Institute, calling for disclosure of nano-technology used by companies.


NYC Trash is Too Dirty to Compost

One of the facilities accepting NYC's organic waste recently lost its license due to being overwhelmed with non-organic residuals. The facility's lenient policies for accepting compost feedstock that was highly contaminated with plastic and other non-compostables was what attracted to the facility. NYC will now need to find an alternative facility or find ways to mitigate the highly-contaminated nature of its organic waste feedstock.


NYC Climate Change Office Change

The Mayor has combined the Office of Long Term Planning and Sustainability with the Office of Environmental Coordination to create a new Office of Sustainability that will undertake the city's efforts to mitigate climate change.


AG Stops Cemetery Flooding

The NY Attorney General's office obtained a court order forcing a property owner to cease the unpermitted diversion of storm water that flooded a nearby cemetery. The alleged water diversion flooded and damaged cemetery property and grave sites.


Illegal Deer Hunting in Guilderland

My hometown is not immune from environmental transgressions as a Guilderland, NY man was charged with allegedly using an illegal spotlight to hunt deer after dark with a crossbow.


AG Prosecutes Cockfighting Ring

The NY Attorney General announced the felony cruelty to animal convictions of two Ulster County men as the result of "Operation Angry Birds," the largest known investigation into organized cockfighting in New York history.


Adirondack Park Agency Enforcement Report Issued

The APA enforcement docket is now available.


Energy Enforcement News

Inspectors Discover Faulty RR Switch Impacting Crude Oil Trains

NYS and federal inspectors found a faulty track switch which could have derailed passing trains that routinely carry dozens of crude oil tankers through a large Albany County industrial park in Guilderland, NY. This is a direct result of the state's increased scrutiny of crude oil trains moving Bakken Shale generated crude oil to the nearby Port of Albany for transshipment.


North Dakota Sets Crude Oil Volatility Std.

NYS stakeholders are divided over whether new standards imposed by North Dakota regulators to decrease the volatility of Bakken Shale crude oil will be truly effective in decreasing the levels of oil flammability in transported oil. The overall goal is to prevent or limit catastrophic fires due to crude oil train accidents.


Improvements to the Oil Spill Fund Contemplated

The Governor and the Comptroller have commenced their annual policy debate over how to address the issues associated with the state's primary oil spill cleanup mechanism especially in light of the increased oil train traffic in NY.


Governor Cuomo Issues Crude Oil Train Status Report

The Governor's office issued a report that details the state's response to the safety and environmental issues associated with crude oil trains to and through NY.


Constitution Gas Pipeline Comment Sought

DEC sought comments on permit applications the agency received for the proposed, federally regulated Constitution Pipeline and an upgrade to the Iroquois Wright Compressor station in Schoharie County. The Constitution Pipeline is a proposed interstate natural gas pipeline that would traverse though Broome, Chenango, Delaware and Schoharie counties.


Feds Approve Constitution Gas Pipeline - Fight Guaranteed

The Federal Energy Regulatory Commission (FERC) approved construction plans for the Constitution Pipeline, which would begin in the Marcellus Shale fracking fields around Susquehanna County, Pennsylvania, just south of Binghamton (see item above).

Opponents of the pipeline have vowed to continue their opposition. This project is one of many proposed to move Marcellus Shale natural gas from Pennsylvania into the Northeast energy market.


Another NY Pipeline Proposed for Penn. Natural Gas

Unrelated to the Constitution Pipeline (items above), FERC is also reviewing an application for the Northeast Energy Direct pipeline which would also carry Marcellus Shale natural gas from Pennsylvania to New England via a route that travels across areas south of Albany. Local opposition has already developed to oppose the pipeline project.


Indian Point Risks Highlighted by U.S. Senate

NY Senator Gillibrand raised several safety issues about the Indian Point nuclear plant based on the potential exposure of the plant to hurricane and earth quake dangers.


People in the News

Grisanti leaves Senate

Former NY State Senator and Chairman of the Senate Environmental Committee Mark Grisanti left the senate in 2014. As Senator, he sponsored many environmental initiatives and frequently spoke on legislative affairs at the ELS Legislative Forum. The Environmental Law Section wishes him well.


Long-time Long Island Senator Passes Away

Former NY State Senator Owen Johnson passed away after 40 years representing his Long Island district from 1972 to 2012. Among his many accomplishments was the legislation that created the state's Environmental Protection Fund.


Cruden Returns to DOJ

John Cruden has rejoined the Department of Justice as Assistant Attorney General for the Environment and Natural Resources Division.


New DEC Region 2 Attorney

Karen Mintzer has left private practice to become Regional Attorney for DEC Region 2 in Long Island City.


New Chief of NDNY Criminal Division

Elizabeth C. Coombe has been named the Chief of the Criminal Division of the United States Attorney's Office for the Northern District of New York.


NY Legal Scholar Passes Away

The Environmental Law Section joins the rest of NYSBA in mourning the loss of Professor David D. Siegel. Those that write or edit legal materials were both inspired and indebted to this giant of legal scholarship. The Update template is loosely based on Prof. Siegel's monthly CPLR Update and a great debt is owed to his pioneering of the format.


State & Local Enforcement

Albany Co. Cement Plant Fined $100k

The LaFarge cement plant in southern Albany County has been hit with a $100,000 state penalty for more than fifty violations of state and federal water law including polluting a stream that runs to the Hudson River (see link to Order below).


Final AG Settlement in the "Dirtman" Investigation

The Attorney General and NYC DEP Commissioner announced a legal agreement with a Putnam County landowner to clean up an illegal landfill that discharged pollution into the Croton Falls Reservoir. The owner is required to clean up the site and pay $245,000 in penalties as part of a consent judgment entered in Putnam County Supreme Court. In July 2014, the Court had ruled that the owner and his contractor, "Dirtman," violated state environmental laws in creating and operating a landfill.


Suffolk County Toxic Dumping Indictments Issued

The Suffolk County District Attorney announced a 32 count indictment against various parties for their parts in the illegal dumping of solid and hazardous wastes at various locations in the Central Islip area. Several defendants were also tied to criminal indictments connected to Hurricane Sandy relief.


$181k Air Penalty with EBP Imposed on Port Operator

DEC imposed a civil penalty of $181,000 on Buckeye Albany Terminal, LLC for air permit violations relating to the transfer of ethanol at its Port of Albany facility. An administrative consent order also requires operational changes to ensure compliance. Part of the penalty, $145,000, will be put toward an Environmental Benefit Project (EBP) to be identified (see link to Order below).


AG Sues NYC Oil Storage Violator

The NY Attorney General has sued a NYC landlord for violations of state oil spill and petroleum bulk storage (PBS) laws related to the handling and storage of heating oil at residential properties. The complaint cited 90 violations at 25 properties around the City. The landlord had also failed to correct the violations or pay a $113,500 civil penalty, as previously ordered by the DEC.


Bottle Bill Deposits Ordered to be Paid

A Monroe County beverage company was ordered to pay the state nearly $80,000 in bottle deposits for repeatedly violating multiple provisions of New York's Returnable Container Act (a/k/a the Bottle Bill). Investigations revealed that, for more than two years, the company collected deposits on beverage containers it sold but then failed to pay the unclaimed deposits to the state.


Region 4 Administrative Orders

In the Matter of LaFarge
Order on Consent
DEC No. R4-2014-0916-150, 12/12/14

Respondent, the operator of a Portland cement plant in Albany County was assessed a civil penalty of $100,000.00, for numerous violations of water pollution permits (SPDES) and chemical bulk storage (CBS) regulations as set forth in 6 NYCRR Parts 750 and 596, respectively.


In the Matter of Prokopiak
Order on Consent
DEC No. R4-2014-0206-22, 12/9/14

Respondent, the operator of a scrap yard and automotive facility was assessed a total penalty of $7,500.00, with $2,500.00, suspended for compliance due to the disposal of solid waste without a permit and open burning without a permit in violation of 6 NYCRR Parts 360-1.5 and 215.3, respectively. The payable portion of the penalty was to be remitted in four equal payments of $1,250.00, each.


In the Matter of Nicholsen
Order on Consent
DEC No. R4-2014-1031-165, 12/8/14

Respondent, a Certified Pesticide Applicator employed by a golf course, was assessed a civil penalty of $1,500.00, for the failure to maintain pesticide records and improper application in violation of 6 NYCRR Sections 325.25 (a) and 352.2 (b), respectively.


In the Matter of Apalachee
Order on Consent
DEC No. R4-2014-1113-168, 12/5/14

Respondent was assessed a civil penalty of $1,640 for operating a salt dryer combustion unit at the Port of Coeymans, Albany County which emitted a detached particulate plume in violation of 6 NYCRR 201-4.1 (a) for operating a non-exempt air emission source without an air registration or permit.


In the Matter of Buckeye Albany Terminal
Order on Consent
DEC No. R4-2014-0902-145, 11/19/14

Respondent, an operator of a facility at the Port of Albany, was assessed a civil penalty of $181,000.00, of which $145,000.00 was to be used for a prospective Environmental Benefit Project (EBP) for air pollution violations associated with the handling of ethanol at the port. Respondent was found to be in violation of 6 NYCRR 200.7 for the improper operation of an emission control required by the facilities Title V federal and state air pollution permit (also see news item above).


DEC Administrative Enforcement Orders, Decisions and Rulings

In the Matter of Alan Grout
Ruling of the Chief Administrative Law Judge on Motions
DEC File No. R4-2009-1120-176
December 12, 2014

Here, the Chief ALJ addresses the common problem of typographical or insignificant errors in pleadings by applying CPLR 2001 standards as per previous civil and administrative law precedents which allow pleadings, "to be corrected, upon terms as may be just, or, if a substantial right of a party is not prejudiced, the mistake, omission, defect or irregularity shall be disregarded." The Chief ALJ further concluded that Department staff should be permitted to correct the two clerical errors in its complaint regarding the correct nomenclature designation in the water regulations of the stream at issue in the matter.


Weird News

Bizarre Animal Remains Found at Bizzaro Residence

A drug raid on a Long Island home allegedly revealed 300 rotting deer hides and other miscellaneous and decomposing wild animal parts. Illegally possessed live snapping turtles were also discovered. Owner James Bizzaro had no reported comment.


New NY Law Bans Tattoos on Pets (Not, Tattoos of Pets on Owners)

NY residents can no longer extend their personal aesthetic to Fluffy or Mittens. NY has now protected pets from the growing practice of pet body modification and art.


A New Product Brand - NY State of Opportunity

New York State issued an 87-page manual to every state agency to introduce the new mandatory "State of Opportunity" motto and logo. The effort is part of a $217 million contract to advertise state economic benefit programs. Among the casualties is the long-used and well-known DEC environmental conservation (sky, land, water) logo.


Potential Bombs Close P.R. Wildlife Refuge

The federal government closed Playa Grande Beach, a part of the Vieques National Wildlife Refuge in Puerto Rico, to investigate the possible presence of old, but still explosive, military ordinance. Many parts of Vieques were historically used as a military bombing range.


Apes Are Not Legally Humans (or Are They?)

There is a low key, but passionate, international legal movement to establish human civil rights for captive great apes and elephants to improve the treatment of these creatures. A case brought on behalf of a privately owned chimpanzee recently failed in a NY court. However, in contrast, a court in Argentina found that a captive zoo orangutan did have such rights. So, the legal question seems to remain open for now.

_____________________________________________________________________________________________________________________

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.

January 30, 2015

New Executive Order Amends Floodplain Management


President Obama issued an Executive Order today establishing a Federal Flood Risk Management Standard. This Order amends Executive Order 11988 Floodplain Management and solicits comment to new standards. Of the greatest significance is the setting of three approaches to determining the floodplain:


  • Climate-science based approach

  • Freeboard (e.g. 100-year base flood plus several feet of height to address unknowns)

  • 500-year flood elevation


The Federal Emergency Management Agency is tasked with the responsibility of amending the Floodplain Management Guidelines for Implementing Executive Order 11988 and subsequently presenting the draft for public comment.

This stands to influence the ongoing recovery from Hurricane Sandy and the continued rollout of new FEMA floodmaps.

January 11, 2015

NY Environmental Enforcement Update November 2014, # 23


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

Enforcement News

Two Car Companies Pay Highest CAA Civil Penalties Ever

Car manufacturers Hyundai and Kia (the "Companies") used inaccurate data to falsely demonstrate compliance with Clean Air Act (CAA) emissions standards. They also miscalculated higher fuel economy and lower greenhouse gas emissions (GHG). The Companies then used the dubious GHG data to claim more GHG emission credits than they were entitled to.

Hyundai and Kia will pay a civil penalty of $100 million, forfeit 4.75 million metric tons' worth of GHG credits (worth hundreds of millions of dollars), and be required to implement training and audit testing of new vehicles.


New Environmental-Health Threat - Asbestos in Talc

Talc, the soft powdery mineral that is used in a myriad of common consumer products, can contain high levels of toxic asbestos. A number of users have already claimed injuries due to exposure to products containing talc.

The federal Food and Drug Administration ("FDA") has been slow to respond to the threat due to weak laws and restricted regulatory authority over talc and talc products.


State-NYC Expand Environmental Navies

In separate announcements, NYC and the State announced that the NYC Department of Environmental Protection ("NYCDEP") and various state and local agencies have received new vessels to enhance environmental compliance, regulatory enforcement and boating safety.


States Endorse Proposed New EPA Ozone Standards

A number of states - including New York - submitted a letter urging the federal Office of Management and Budget to support EPA's proposal to strengthen the national ambient air quality standards for ozone with a national primary standard of 60 to 70 parts per billion.


New State E-Mail Retention Policy Blamed for Lost Documents

As first raised in an item posted last month, the state's new radically shortened email retention policy (90 days) has already been blamed for the loss of email documents in litigation involving the Governor's Office and DEC.


Hudson River Estuary Plan Released

DEC released "The Hudson River Estuary Habitat Restoration Plan" as a guide for restoration and protective actions along the River from Troy to the Tappan Zee Bridge.


Court Orders SLA Licensee Back to Agency Hearing

In a case that may define the parameters of state administrative authority, the State Supreme Court remanded a NY liquor retailer's challenge to state enforcement authority back to the State Liquor Authority (SLA). Recall from a previous post that the liquor retailer is testing an SLA imposed ban on out of state sales.


Leadership Challenged at Lake George Park Commission

The Governor's Office is attempting to oust the Commissioner of the state's smallest state environmental agency for mysterious reasons. Intrigue has ensued. More next month.


Toxic Toys Invade NY!

The discovery of toys containing hazardous substances has drawn the attention of state officials including the Attorney General. The toys appear to be mostly small, cheap and imported from China. Look for related legislation in the 2015 session.


CWD Threatens NY Deer Population

DEC amended its Chronic Wasting Disease (CWD) regulations to prohibit the importation of certain parts of white-tailed deer, elk or moose taken in the state of Ohio where an outbreak has occurred. CWD is a lethal and incurable disease that can and has devastated wild deer herds in other parts of the country. Exposure of healthy to diseased animals spreads this disease.


States Denied Credit for Past Greenhouse Gas Reductions

New York and other states are miffed that proposed federal rules to cut greenhouse gases (GHG) are unfair because the proposed limits don't give their states enough credit for past voluntary reductions when compared to states that have effected little or no reductions to date.


Mining CEO Personally Indicted for Mine Explosion (West Virginia)

The CEO of a West Virginia Mine that exploded in 2010, killing 29, was indicted for numerous federal mining and securities violations including for making false statements after the disaster.


AT&T To Pay $52M in E-Waste Settlement (California)

Telecom giant AT&T Inc. agreed to pay $51.8 million in civil penalties and compliance costs to resolve California allegations that it unlawfully disposed of hazardous electronics waste with general solid wastes over a nine-year period. The wastes consisted of discarded electronic equipment, batteries, aerosol cans and hazardous chemicals used by technicians at over 200 distribution and service locations in that state. This is yet another example of hazardous waste enforcement against non-traditional non-industrial waste generators.


Fishing and SARBOX? An Unusual Legal Bouillabaisse! (Florida)

A Florida commercial fisherman was prosecuted and convicted under the federal Sarbanes-Oxley (SARBOX) security law for "shredding documents" by throwing back 72 undersized grouper before reporting to investigating US Fish and Wildlife officers. But is a fish equivalent to a document under the plain language of the statute? The U.S. Supreme court will weigh in on this rather fishy issue in this term as the fisherman appeals his conviction.


Energy Enforcement and Regulation

North Dakota Regulators Rule on Crude Oil Safety

New Yorkers concerned with the safety of crude oil trains in the Port of Albany were relieved to discover that the North Dakota Industrial Commission has endorsed proposed new operating standards which decrease the volatility of oil extracted from that state's Bakken Oil field and shipped to the rest of the country including New York. This action will dramatically improve the safety of Bakken oil shipped from North Dakota. The new regulations are to be finalized next year.


Power Plant Conversion Questioned!

The NYS Public Service Commission continues to wrestle with a controversial proposal to partially convert NYSEG's coal fired power plant in Tompkins County to cleaner burning natural gas.


Proposed Amusement Park near Propane Storage Questioned

Activists have raised issue with the contemplated placement of the relocated Hoffman's Playland about one-tenth of a mile from a 630,000-gallon propane storage facility on Albany's waterfront. Many in favor of the park move are also firmly against the passage of crude oil trains through Albany despite the safety questions raised by both activities.


Revised LNG Rules Cap Storage Capacity

Under revised proposed rules, the DEC would limit the size of proposed storage facilities for super-cooled and liquefied natural gas (LNG). LNG storage in NY has been banned since the early 1970's after a tragic explosion at a Staten Island facility killed 40 people. DEC set a revised limit of 70,000-gallons after public comments raised safety concerns.


Orange Co. Crude Oil Facility Expansion Nixed

The same oil terminal company that operates at the Port of Albany dropped plans to add a rail-to-river unloading facility on the Hudson River in New Windsor, about 90 miles south of Albany.


Incoming Crude Oil Slows Into Port of Albany

A citizen's group that monitors crude oil trains arriving at the Port of Albany reports that the oil flow has significantly diminished in recent weeks. Falling oil prices and higher drilling costs are thought to be the cause of the downturn.


Proposed Propane Storage in Salt Caverns

DEC continues to advance the administrative process for the proposed use of old salt mining caverns in the Finger Lakes region near Watkins Glen for as an underground liquefied propane storage facility. Opponents have stressed safety and environmental concerns.


Port Emergency Exercise

Numerous federal, state and local agencies participated in planning exercises focused on possible responses to an oil spill emergency at the Port of Albany.


Nuke Operator's Finances Challenged

A number of citizen watchdog groups have claimed that Entergy Corp, the operator of two New England nuclear power plants, has inadequate finances. The same company operates nuclear plants in New York (Indian Point). One of the New England plants is scheduled to be closed by the end of 2014.


People in the News

NYS ECO of the Year

The Update joins DEC and the New York State Rifle and Pistol Association (NYSRPA) in congratulating Environmental Conservation Officer (ECO) Scott Marshall for being named the New York State ECO of the Year.


DEC ECOs Receive Award for Excellence

The Governor commended members of the New York State Department of Environmental Conservation Police who received the Dave Cameron Award for Excellence in Environmental Crimes Enforcement and Education from the International Association of Chiefs of Police. The Award was presented to Lieutenant David Clarke and Investigators Fran D'Angelo, Mike Dangler and Mark Malone of the Bureau of Environmental Conservation Investigation ("BECI").


State and Local Enforcement

Artistic Hair Care and Hazardous Waste

The DEC investigated a release of 720 gallons of liquid ammonium hydroxide from the Zotos International Facility in Geneva, Ontario County. The spill occurred after an improper repair involving a storage tank. The highly caustic liquid discharged into a sewer outfall that eventually led to Seneca Lake. The company manufactures shampoo, hair dye and other grooming products.


Proposed New Bulk Storage Rules Hearing Report Issued

DEC has issued the administrative rule making public comment hearing report generated by proposed new regulations for petroleum and chemical bulk storage as well as used oil management. These reflect the first major regulatory and enforcement changes to these regulations in more than 20 years.


Federal Enforcement

NY Asbestos Inspector Sentenced (WDNY)

A NY-certified asbestos inspector was convicted of the misdemeanor charge of negligent endangerment under the CAA and was sentenced to one year probation. The Defendant had been involved in a scheme to create false asbestos abatement records as part of the Kensington Towers abatement project in Buffalo. He is the last defendant to be convicted and sentenced in this criminal matter. A number of federal and state enforcement and regulatory agencies cooperated and participated in this lengthy investigation.


Ivory Smuggler Sentenced (SDNY)

A Canadian antiques dealer pleaded guilty to attempting to smuggle rare black rhinoceros horns from New York to Canada as part of "Operation Crash," a nation-wide crackdown in the illegal trafficking in these items. The crime carries a maximum penalty of ten years in prison.


DEC Administrative Enforcement Orders, Decisions and Rulings

In the Matter of Rraci Real Estate Corp.,
Commissioner's Order, November 4, 2014
DEC File No. R2-20130905-379

The Commissioner granted the staff's motion for an order without hearing in lieu of complaint pursuant to 6 NYCRR 622.12, after Respondent failed to appear and also held that it violated a previous 2007 Order on Consent and therefore ECL 71-1929(1) for failing to comply with the corrective action plan (CAP) for an oil spill as directed. Respondent was also assessed a civil penalty of $50,000.

Of interest is that the Commissioner rejected the Administrative Law Judge's contention that ECL 71-1929(1) does not set forth enforceable requirements for a violator that "fails to perform any duty imposed by" orders of the Commissioner (citing, Matter of Raphy Benaim, et al., Order of the Commissioner, January 27, 2014, at 4 [failure to comply with stipulation is violation of ECL 71-1929]).


PBS Tank Administrative Hearing Defaults

In the following three administrative enforcement cases, the Commissioner granted Staff's motion for a default judgment pursuant to 6 NYCRR Part 622.15 and assessed a civil penalty of from $7,500 to $10,0000, for the failure to register a petroleum bulk storage (PBS) tank in violation of 6 NYCRR 612.2. Penalties varied based on the length of the time the tank was not properly registered.

In the Matter of Hop Hing Realty Corp.,
Commissioner's Order, October 24, 2014
DEC Case No. 2-607278AL

In the Matter of 1555 Seabury Place Housing Development Fund Corporation,
Commissioner's Order, October 24, 2014
DEC Case No. PBS 2-330701SC

In the Matter of Hop Yick Company, Inc.,
Commissioner's Order, October 24, 2014
DEC Case No. PBS 2-607294AL


Weird News

Groaning Frogs Found in NJ

Recently, researchers discovered New Jersey frogs that groan and cough (like some of my relatives) rather than croak like the other frogs.


Idaho Wolf Derby Cancelled

To the disappointment of sports fans everywhere, the federal Bureau of Land Management (BLM) cancelled an Idaho wolf and coyote hunting contest (the "Derby") on public lands. This item is illustrative of the controversies that involve the use of public lands and, in particular, the management of predators.


Chinese Diplomats Accused in African Ivory trade

Chinese diplomats have been accused of active involvement in the illegal international ivory trade. Those that follow this blog know that foreign nationals are often named in domestic illegal ivory investigations (see item on Operation Crash, above). However, if true, the collusion of diplomats in this criminal activity would be a serious blow to world enforcement efforts.

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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.

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