January 31, 2016

New Criminal Air Pollution Article Written by Section Member


Environmental Law Section member Michael Lesser has had an article about New York's criminal air pollution laws published in the New York Law Journal Supplement issued for the NYSBA Annual Meeting.

Annual NY Environmental Enforcement Update Vol II


The ELS E-Book, the NYS Environmental Enforcement Update 2014 Annual Report, has been posted and is available as a free download at the link below. The book focuses on NY legal enforcement issues. The E-Book was edited by ELS section member Samuel Capasso and written and compiled by section member Michael Lesser.

January 24, 2016

Riverkeeper Job Posting


Dear Colleague:

Riverkeeper has an opening for a Staff Attorney who will immediately work with senior attorneys on Indian Point Nuclear Power Plant litigation and on other pressing environmental cases. This is a unique opportunity for an attorney who is interested in joining one of the most effective and distinguished environmental advocacy organizations in the country. Riverkeeper is looking for a qualified, experienced environmental litigator and advocate with an exceptional commitment to the environment and a strong academic and experiential learning record.

The Staff Attorney will expand Riverkeeper's presence and effectiveness in the mid to upper Hudson River watershed and the New York City drinking water watershed through litigation, advocacy, public education, and public outreach in order to advance Riverkeeper's policy goals of fishable, swimmable waterways. The position requires significant travel throughout the Hudson River Valley, and a commitment to attend meetings and appointments that may be outside of normal business hours.

It is a pivotal moment in Riverkeeper history. In 2016, we will celebrate our 50th year of working on clean water and environmental issues. In 1966, Riverkeeper was established as an independent, member supported environmental organization whose mission is to protect the ecological integrity of the Hudson River and its watershed, and to safeguard the drinking water supply of nine million New Yorkers. For more information, visit www.riverkeeper.org.

We look forward to receiving submissions from qualified candidates.

Regards,

John Parker

http://www.riverkeeper.org/wp-content/uploads/2009/06/Riverkeeper-Staff-Attorney-Posting-Jan-2016.pdf

December 19, 2015

Section's Annual Meeting


It's nearly time for the Section's Annual Meeting! This year the Annual Meeting will be held on January 28-29, 2015, at the NYC Hilton. Registration and program details can be found on the Section's website.

Register today!

November 8, 2015

Third Anniversary of Superstorm Sandy


By Sam Capasso

It's been three years since Sandy rocked the region and caused enough damage to become the second costliest hurricane in U.S. history at $50 billion in estimated damages. It was a wake-up call on many fronts, resparking discussion of the impacts of climate change and the preparedness of United States against disaster. In these past years, what has happened? Did the disaster make us stronger or did we fail to heed the lessons of the storm?

In many ways, New York State has been using the disaster as leverage to do the things that need to be done and to be prepared for the future. Many of the departments and agencies responsible for New York's critical infrastructure damaged in Sandy took advantage of the Stafford Act Section 406 Hazard Mitigation, rebuilding to higher levels of protection. New York City pushed its agencies to account for 30" of sea level rise over 50 years to utilize a recent change in Federal Emergency Management Agency (FEMA) funding that allowed FEMA to pay for the additional costs of protecting facilities against sea level rise. New York City also was very quick to adopt the more restrictive of the FEMA flood maps as their flood maps went through the regulatory revision process, as well as passing multiple changes to the building code as a result of Sandy, all of which will make the City better able to withstand and bounce-back from future disasters. New York Rising and Build it Back, which both include a residential programs funded by a HUD Community Development Block Grant, have begun the process of acquiring and elevating thousands of homes in areas at high-risk of flooding.

But much of this started while the memory of Sandy was fresh; in the intervening years, the warning and the threat of the storm have begun to fade. A provision in the New York Rising program which requires residential elevations to code compliant has led some communities to ban open foundation types in favor of closed foundations for the purpose of aesthetics. These closed foundations are more expensive and the more private nature of them tends to encourage unlawful use and occupation of that enclosed space, putting people and property at risk of future flooding. Despite New York City's early push for the more stringent flood maps, New York City has filed a technical appeal of the FEMA flood maps that, on the whole, argue for lower flood elevations and less restrictive zones throughout the City.

This is not a new pattern, but what can be done to preserve the lessons taught by a disaster? This was the overall objective of a recent CLE taught by Section Member Sam Capasso, along with Chelsea Holland and Maggie Palmer Saalfield at Touro Law School as part of their Bagels with the Board program. The CLE discussed hazard mitigation planning and the National Flood Insurance Program and FEMA's incentive program, the Community Rating System, which provides community-wide flood insurance premium discounts for communities that go above and beyond the regulatory requirements. The incentive of lower premiums is one way a community can continue the discussion about the impacts of disasters and be better prepared for when they inevitably occur.

Perhaps it is in our nature to forget and just hope that what happened in the past won't happen again. With the move of many government agencies into the new Freedom Tower, it seems even FEMA is susceptible to the creeping sense of security granted by the passage of time.


_________________________________
The statements and opinions above are the author's own, and not necessarily the opinions of any associated parties.

November 7, 2015

Comment Period Open for State Sea Level Rise Projections


As part of a process that began with the Sea Level Rise Task Force and their 2011 report, public comment is open for new sea-level rise projections determined by the DEC. DEC is required by Community Risk and Resiliency Act (CRRA), signed by Governor Cuomo in September 2014, to adopt state sea-level rise projections. CRRA requires applicants for certain permit and funding programs to demonstrate consideration of future physical risks due to sea-level rise, flooding and storm surge.

The proposed regulation and support documents are available on DEC's website at http://www.dec.ny.gov/energy/45202.html.

Public comments on the proposed regulation will be accepted following publication in the State Register through December 28. New York will establish official State sea-level rise projections by early 2016.


Additionally, there will be a public meeting, with details as follows:

Community Risk and Resiliency Act
Stakeholder Update Meeting
Monday, November 16, 2015, 9:00 a.m. - 12:00 p.m.
625 Broadway, Albany, PA-129

The New York State Department of Environmental Conservation will host a meeting for all interested stakeholders to provide information and receive input on DEC's development of guidance for implementation of the Community Risk and Resiliency Act (CRRA).

Governor Andrew Cuomo signed CRRA in September 2014 and, in his 2015 Opportunity Agenda, directed DEC to gather stakeholder input on implementation of CRRA. A summary of CRRA's provisions and affected programs is here; additional information on CRRA is available at http://www.dec.ny.gov/energy/100236.html.

The meeting objectives and webinar information are described in the agenda.

This meeting will be held at DEC headquarters at 625 Broadway, Albany. Directions and parking information are available at http://www.dec.ny.gov/about/244.html.

Individuals wishing to attend the meeting in person are strongly encouraged to pre-register to avoid delayed admittance to the building. Pre-register by e-mailing climatechange@dec.ny.gov no later than noon, Friday, November 13. Please include the words "CRRA Pre-registration" in the subject line. All persons must present government-issued photographic identification to be admitted to the building.

September 20, 2015

NY Environmental Enforcement Update July 2015, Vol. II # 7


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

Enforcement News

DEC Commissioner Joe Martens Resigns

NYS Department of Environmental Commissioner Joe Martens announced his resignation effective the end of July 2015. Mr. Martens assumed the position in 2011, and will return to the Open Space Institute (OSI). Executive Deputy Commissioner Marc Gerstman will be the Acting Commissioner for the immediate future.

Under his tenure, the agency has been very active in making environmental and energy enforcement policies in such areas as: brownfields reform; the natural gas fracking ban; crude oil train regulation; liquefied natural gas (LNG) planning; petroleum and chemical bulk storage (PBS-CBS) reform; updated CAA compliance; sewage spill reporting; enforcement audit incentive policy; and invasive species prevention.


Pressure Builds on GE to Maintain PCB Dredging

State legislators have joined the growing public movement to persuade GE to move beyond its legal obligations and agree to dredge other parts of the upper Hudson River watershed to remove hazardous PCB sediments.


BP and Gulf States Reach 18.7 Billion Dollar Settlement

The four states most impacted by the massive Deepwater Horizon oil spill reached an $18.7 billion federal court settlement with primary responsible party, BP. The award will compensate parties for economic losses and natural resource damages and will also resolve: Clean Water Act (CWA) penalties; natural resources damage claims; economic claims; and the economic damage claims of local governments. BP stated that its spill-related costs will already exceed $42 billion not including this settlement. The NY regulated community should take heed of the exponential rise in pollution costs nationwide.


US Supreme Court Denies EPA Mercury Emissions Authority

The US Supreme Court blocked an Environmental Protection Agency regulation meant to limit emissions of mercury and other toxic pollutants from coal-fired power plants. Plaintiffs had challenged the agency's ability to regulate the emissions because it had failed to perform a cost benefit analysis. Implementation costs have been estimated to be in the billions of dollars.


Riverkeeper Issues Annual Hudson River Quality Report

One of NY's most noted conservation organizations outlines the successes and numerous shortcomings of a formal Hudson River cleanup effort that is now in its fiftieth year.

The Albany Times Union takes a slightly more optimistic view of overall water quality of the Hudson River.


DEC Proposes New Part 200 Regulations

The Department is proposing to revise 6 NYCRR Part 200, General Provisions to incorporate by reference new and updated federal New Source Performance Standards (NSPS) and National Emission Standards for Hazardous Air Pollutants (NESHAPs). The proposed regulations also address flexibility for small business and municipal applications.


New Tappan Zee Bridge Book Explains (almost) All

Author Philip M. Plotch's has written "Politics Across the Hudson: The Tappan Zee Megaproject" (Rutgers University Press) which attempts to explain the decades of odd and expensive decisions surrounding the replacement of this crucial bridge. This includes the environmental impacts of siting a bridge at the Hudson River's second-widest point.

And speaking of bridge impacts, NYS spent more than $686,000 for outside lawyers in the abandoned effort to litigate an EPA Region 2 rejection of the state's attempt to use federal clean water funds to finance non-environmental bridge construction.


Time (and New Water Filters) Heals All Groundwater Pollution

Fluctuations in groundwater sampling results at the old Dewey-Loeffel superfund site illustrate the technical difficulties in remediating and monitoring the condition of one of the state's oldest hazardous waste dump sites.


Adirondack Group Critical of State Management

The nonprofit Adirondack Wild: Friends of the Forest Preserve, issued a report that contends that the state agencies (APA, DEC) assigned to protect the Adirondack Preserve have failed to take actions to limit public use of some heavily overused areas of the preserve among other shortcomings.


APA Moves against Invasive Water and Land Species

The Adirondack Park Agency (APA) has issued two general permits to allow the DEC and the NYSDOT to remove invasive and destructive plants from Adirondack Forest Preserve waterways.


APA Enacts Emergency Projects Regulations

The Adirondack Park Agency Has enacted new regulation at 9 NYCRR § 572.15 for emergency projects effective June 17, 2015. The regulations "establish when land use or development is an emergency project and therefore exempt from the Agency's normal regulatory review."


People in the News

Changing of the Guard at the DEC

DEC commissioner Joe Martens will be leaving the agency before the end of July to return to the non-profit sector with the Open Space Institute. The environmental Law Section wishes him well in his new endeavors. Marc Gerstman will assume leadership of the agency as Acting Commissioner.


Early Retirement by Judge Read

Associate Judge Susan Read is retiring early from her term on the NY Court of Appeals. Appointed to the state's highest court by Governor George Pataki, Judge Read previously held several environmental positions both in government and private practice. She often rendered the Court's environmental decisions.


New Leadership announced at ENRD

Assistant Attorney General John C. Cruden announced new leadership staff positions in the Environment and Natural Resources Division (ENRD) with the appointments of Varu Chilakamarrias as Chief of Staff and Patricia McKenna as General Counsel and Attorney Educational Coordinator.


Energy Enforcement

No. 6 Heating Oil Now Illegal in NYC

The dirtiest burning grade of heating oil (No. 6) is now illegal in New York City. Residential buildings are required to switch to cleaner burning No. 4 or No. 2 fuel oils. However, approximately 250 building are still not in compliance and may be subject to enforcement by the City.


Gas Tops Coal for the First Time

Research indicates that natural gas now provides 31% of US power generation. Coal is second at 30%, with nuclear fading to third at 20%. The shift is attributed to falling natural gas prices due to the widespread national use of hydraulic fracturing (fracking) to extract the stuff.


DEC Makes State Gas Fracking Ban Official - Maybe

NY finally ended the state's natural gas hydraulic fracturing (fracking) saga after seven years of administrative review by issuing an official Findings Statement. That in turn was based on the Supplemental Generic Environmental Impact Statement (SGEIS).

But is it really over? It did not take long for a legal challenge to the state's new fracking ban to be filed.


Fracking with Propane: A Viable Alternative?

Despite the NY hydraulic fracturing (fracking) ban (see above), a group has applied for a permit to frack for gas using a distinctly different method. Instead of copious amounts of water, the proposed alternative process uses injected but largely recoverable propane to fracture and release the natural gas trapped in the Marcellus Shale formation.


Port Operator Decries 2-Yr. Permit Delay

In a letter to DEC, the Port of Albany operator has demanded that the agency proceed with processing its application to amend its air pollution permit despite pressure from the public to delay or deny the permit application. Underlying the opposition is the resistance to crude oil trains running into the Port. The amended permit would allow the use of an oil heater to ease oil deliveries in winter.


More Calls for NY Oil Train Ban

As previously posted, calls continue for Governor Cuomo to invoke the state's ECL Summary Abatement authority to ban crude oil trains as imminent hazards due to tragic accidents in Canada and elsewhere.


Albany Crude Exports Down, But Still Substantial

Crude oil exports via the Port of Albany are down in a sluggish oil market, but still topped more than one-half billion dollars in value.


FERC Seeks Gas Pipeline Comments

Federal regulators have asked for public comments on the increasingly controversial Northeast Direct (NED) natural gas pipeline which is proposed to run through the Albany area. Equally controversial are the nine new compressor stations needed to keep the gas moving through the pipeline.


State & Local Enforcement

Oil Dumper Apprehended

A Schenectady man faces felony charges for dumping 125 gallons of waste oil - a NY hazardous substance) into a city storm drain. Charges may include the Class E Felony found at ECL 71-2712.


Hazardous Waste Prosecutions Rise

The Environmental Conservation Law Offenses: Hazardous Waste and Waste Disposal 2014 Annual Report compiled by the NYS Division of Criminal Justice services (NYSDCJS) indicates more criminal prosecutions than in previous years (see Table, Report p. 1). Previously, years 2011-2013 showed only one reported hazardous waste crime.


Susquehanna River Basin Commission 2014 Annual Report

Among the obscure yet important federal environmental agencies serving NY, the SRBC still churned out more than 1400 inspections and audits in 2014, leading to over 100 Notice of Violations and 15 penalty enforcement actions (Report p.4). The Executive Board includes NYS representation.

Of course, as is our tradition, the mere mention of the "S" word leads to the following indispensable discourse.


Fraudulent Asbestos Engineers Indicted (Richmond Co. DA)

Two professional engineers-certified asbestos investigators were indicted on 36 counts under the NY Penal Law for offering a false instrument for filing and falsifying business records after they submitted false asbestos assessment reports for work done at least eight Staten Island locations. This is at least the third state or federal prosecution of fraudulent asbestos inspectors this year (see the Update, May 2015).


Federal Enforcement

High Seas Oil Dumper Sentenced (Dist. Of New Jersey)

The Chief Mate of a cargo vessel in route to New Jersey was sentenced to three months by a federal court for failing to maintain an accurate oil record book in violation of the Act to Prevent Pollution from Ships (APPS). APPS requires covered vessels to maintain a record known as an oil record book in which all transfers and disposals of oil-contaminated waste must be accurately recorded. At defendant's direction, the ship's crew dumped oil near Florida. The ship's owner had previously paid a fine of $750,000.


Something's Fishy at the Fish Market (EDNY)

A federally-licensed NY fish dealer and its company president pleaded guilty to federal felonies for covering up purchases of illegal fluke (summer flounder), and other species harvested in violation of the federal Research Set-Aside (RSA) Program. The president pleaded guilty to two counts of wire fraud, one count of aiding and abetting mail fraud and one count of falsification of federal records for fraud schemes involving two Long Island based trawlers.


EPA Criminal Videos Now Online

EPA has issued a number of informative enforcement videos via the EPA YouTube channel.


OSHA/NYSDOL Report

New Nail Salon Law in Effect

This relatively recent and ubiquitous industry sector is now under rigorous scrutiny by NYS, primarily via the Secretary of State. While the law focuses on preventing the exploitation of mostly immigrant workers, there are significant environmental and health provisions for protective gear and improved ventilation due to the hazardous chemicals used by the industry. The new law (S 5966/A 730-A) also amends the General Business Law (GBL) to provide for criminal sanctions.


Region 4 Administrative Orders

In the Matter of Shaker Group
Order on Consent
DEC File No. R4-2015-0618-73, Spill# 1402098

Respondent's employee failed to report a petroleum (diesel fuel) spill in violation of Section 12-175 of the NYS Navigation Law (NL) and failed to immediately undertake to contain the discharge in violation of NL Section 176. A penalty of $750, was assessed. Respondent operates a gas station convenience store in Bethlehem.


In the Matter of Lowe's Home Centers
Order on Consent
DEC File No. R4-2015-1213-8

A Latham Lowes Home Center was held to be in violation of eight hazardous waste regulations under various relevant provisions of 6 NYCRR Parts 372, 374 and 376. The parent corporation was assessed a civil penalty of $7,800. Violations related mostly to the collection and storage of retail generated wastes and associated paper work including accumulated waste aerosol cans, paint, pesticides, batteries and fluorescent bulbs. However, one notable violation was for the failure to properly label waste gasoline as "hazardous waste" in violation of regulations at 6 NYCRR 372.2(a)(8)(i)(a). In general, gasoline is excluded from the definition of hazardous waste although it is a NY hazardous substance.


In the Matter of Charles Casale
Order on Consent
DEC File No. R4-2015-0529-56

Respondent operates a recycling facility in Troy that was found to be in violation of numerous sections of the solid waste regulations at 6 NYCRR Part 360. The primary violations included the possession and improper storage of unauthorized solid wastes. A penalty of $10,000 was assessed with $5,000 suspended pending the completion of a schedule of compliance.


DEC Administrative Enforcement Orders, Decisions and Rulings

In the Matter of Call-A-Head Portable Toilets, Inc.; et al; and The City of New York, Department of Citywide Administrative Services
ALJ Ruling, June 9, 2015
DEC FILE NOS.R2-20030505-128, R2-20030505-129

The presiding case ALJ granted a motion to dismiss for the Respondent City of New York (City) for the alleged violation of a special condition of a tidal wetlands permit issued pursuant to 6 NYCRR Part 661. The alleged environmental violations happened after the City relinquished the property to the co-respondents. DEC staff had argued that the City failed to take "appropriate measures" pursuant to its permit obligations to prevent the subsequent owners and operators from violating environmental standards on the property. The ALJ noted that this special condition standard was vague and inadequate to assert the basis of a cause of action.


In the Matter of U.S. Energy Development Corporation,
Ruling of the Chief Administrative Law Judge on Renewed Motion for a Protective Order
June 1, 2015
DEC File No. R9-20111104-150

In yet another procedural ruling in this lengthy stream pollution case, the Chief ALJ granted the DEC Staff's renewed motion for a protective order in the face of Respondent's convoluted litigation tactics. DEC had previously responded to 14 of 211 items of a Notice to Admit served by Respondent. However, the Chief ALJ held that, "Review of the 197 requests not responded to by Department staff reveals that they go well beyond the scope and purpose of a notice to admit. Those requests do not seek admissions concerning clear-cut, uncontroverted issues of fact or facts that are easily provable. Rather, many of the requests improperly seek admissions on contested ultimate issues concerning the sources of the alleged turbid discharges that form the bases of staff's charges against respondent ... " (citations omitted). The 14 responses were deemed adequate and the unanswered items were "vacated in their entirety."


In the Matter of Excellent Pest Control LLC
DEC Case No. R2-20090810-506
Ruling, July 9, 2015

The ALJ denied DEC staff's motion for a 6 NYCRR Part 622.12, order without hearing, because: (i) staff did not satisfy its initial burden to demonstrate its entitlement to judgment as a matter of law; and (ii) respondent's submissions in opposition to the motion raise questions of fact the resolution of which requires a hearing. The ALJ held that the evidence raised a question of fact as to whether the pesticides were applied by respondent or respondent's employee in his capacity as an individual or an independent contractor cap. The undisputed underlying facts involve the unlicensed application of pesticides in violation of Article 33


In the Matter of James R. Smith, Jr.
Commissioner Order, July 2, 2015
DEC Case No. R5-20111108-1076

Respondent was held to have violated ECL 9-0303(1) and 6 NYCRR 190.8(m) for causing the cutting and removal of 284 trees on State-owned forest land in the Town of Malone, Franklin County and the use of motor vehicles on State land in conjunction with the cutting and removal of the trees. A total civil penalty of $74,765.97 was assessed for both violations. The Commissioner rejected the ALJ's finding that separate penalties for the statutory and regulatory violations were duplicative and assessed a combined penalty for each violation at law.


In the Matter of American Auto Body & Recovery, Inc. and Salvatore S. "Sammy" Abate -
Commissioner Ruling, July 2, 2015
DEC Case No. R2-20130905-376

In a rare case, the Commissioner overruled all but one of the ALJ's recommendations and denied DEC's staff's 6 NYCRR Part 622.15 motion for default judgment. The Commissioner issued his ruling because the DEC pleadings did not include "proof of facts sufficient to adequately support those causes of action." Staff had attempted to support the DEC case via an affirmation of counsel which alleged facts but was not based upon counsel's personal knowledge. Furthermore, DEC submitted neither affidavits from those with personal knowledge nor documents relating to the events alleged in the complaint. But the Commissioner did concur with the ALJ by upholding the dismissal of a mistaken attempt by DEC to frame a civil cause of action by using a criminal hazardous substance release statute - ECL 71-2711(3) - which has no direct administrative parallel. The motion was dismissed without prejudice and the matter was remanded to the ALJ for further action.

The underlying allegations involved potentially serious violations of the ECL and Navigation Laws for the abandonment of a leaking petroleum tanker in Queens, NY.


In the Matter of 715 Heights Corp. (190th Street)
Commissioner Order, July 2, 2015
DEC Case No.2-283088JB

The commissioner granted the staff's motion for a default judgment pursuant to 6 NYCRR 622.15, and found that Respondent violated ECL 17-1009 and 6 NYCRR 612.2 for failing to renew the registration of its petroleum bulk storage (PBS) facility located in NYC. A $5,000 civil penalty was assessed. Despite the default the requested penalty was reduced on motion by DEC staff to confirm to a more recent PBS penalty matrix. Respondent maintains a 3,500 gallon above ground petroleum bulk storage (PBS) tank.


Weird News

Common Pesticide and Cancer?

Scientists have squared off over the alleged health hazards of products containing glyphosate, one of the world's most common consumer pesticide/herbicide products.


Camera Shy Bison!

An Australian tourist was injured by an annoyed bison in Yellowstone Park after allegedly snapping photos only 3 to 5 feet from the animal. There must be a good travel safety tip in this somewhere.


Sharknado III - Third Times the Charm

The third summer of this publication also arrives with the release of the third installment of this SyFy series about the worst (and most ridiculous) environmental calamity imaginable. Coincidence? I think not. Actress Tara Reid is hereby nominated as the unofficial celebrity of the NY Environmental Enforcement Update.


The Deadly Sturgeon

In a tragic circumstance, a young boat passenger was killed by a jumping sturgeon on Florida's Suwannee River. These fish can grow to eight feet in length and weigh 200 lbs. Experts doubt that such attacks are deliberate but they have no real explanation for this dangerous animal behavior.


Bambi Runs in Daily Double

A Pennsylvania horse racing track was forced to address some unofficial entrants that got onto the track during a race. And, they're 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.

Message from the Chair, September 2015


At this writing, I am proud to report that the work of the Environmental Law Section has continued unabated through the summer months.

Three August 2015 Environmental-Public Health Calamities

Three major environmental disasters arose during this period: the mining waste spill into the Animas and San Juan Rivers; the Legionnaires Disease outbreak in NYC; and, the hazardous chemical explosion and fire in China.

In Colorado and downstream states, the water supply and environment were threatened when an old Colorado dam holding back mining wastes collapsed during USEPA testing. The resulting spill released large quantities of heavy metals including arsenic into the Animas River and connected waterways of the Colorado River basin.(1)

Closer to home, a deadly outbreak of Legionnaires Disease struck the Bronx and took at least twelve lives. This bacterial based respiratory ailment is often associated with infected but mostly untested HVAC units on older commercial and residential buildings. At this writing, the outbreak appears to be under control despite some unfortunate political gamesmanship between the political powers that be in New York City and Albany. (2)

Finally, Tianjin, China suffered an outright human and environmental catastrophe when a large hazardous chemical storage facility exploded and burned. Pictures of the extreme and widespread carnage in this normally teeming port city are sobering. The causes and long term impacts remain unknown at this time but the loss of life currently numbers over 100. Many victims were injured or are still missing (including many fire fighters). (3)

If there is a common thread that runs through these disparate incidents, it is that better environmental regulatory vigilance and disaster planning may have prevented or mitigated these terrible events.


New Lawyer Trends - Section Membership and Diversity Efforts

Three current trends may impact the ability of all legal service organizations to attract young attorneys. According to statistics cited in a recent Bloomberg Business Week article, bar passage rates dropped significantly for the summer 2014 bar exam.(4) The same article also cites to the statistically significant drop in both law school applications and enrollments in recent years.(5) The New York State bar passage rate also declined in July 2014, from 69% for all test takers to 65%.(6) Finally, it is worth noting that starting with the summer 2016 bar exam, New York will join other states in administering the Uniform Bar Exam (UBE) in lieu of individual state bar exams.(7) The ultimate result will be that law school graduates in UBE participating states will be able to apply for bar admission in all the other UBE states.


NYSBA and other state and national legal organizations have pontificated at length on these issues and the long term impacts on the legal profession. However, I think it is fair - although grossly simplistic, I admit - to say that the numbers and location of young attorneys will be in flux in the near term. Therefore, bar association membership in general and our own Environmental Law Section membership cannot rely solely on new attorneys to maintain our membership. Membership retention must be part of the equation. This means section leaders must provide value and quality services to our members on a regular and consistent basis. To put it another and perhaps more crass way, we are now in a membership competition for limited numbers of potential members based on the quality of our product.

However, in more relevant and immediate good news, our overall section membership appears to be rebounding. As of August 31, 2015, the Environmental Law Section has 998 members. It is worth noting that approximately fifty new members have joined this year alone. The section cabinet is also working with NYSBA membership staff to send membership information to those NYSBA members that indicated that the environment is their practice area even though they are not current section members. This category is estimated to consist of about three thousand NYSBA members. Long term section members will recall that such an initiative has been discussed in the past but never implemented.

Finally, the section cabinet has followed up with our new members by sending each new section member a welcome letter containing an event schedule, section benefit menu and communications/publications information. Approximately fifty such letters have been sent thus far in 2015. To our credit, the NYSBA Membership Department has noticed this simple but effective innovation and it may be adopted by other NYSBA sections.


Section Committee Initiative and Other News

Those that follow such issues will know that the past few section cabinets have tried various methods to reinvigorate our committees. Many have been dormant in recent years. Building on past efforts, committee chairs or co-chairs recently received a cover email and attached model committee report form. The simple form could then be completed and used as the basis of a committee report to the section which would then be published in our various media formats.

In more immediate news, the Brownfields Task Force met throughout the summer to meet tight state deadlines for the submission of comments on draft Brownfields regulations. In particular, the comments focused on the thorny issue of defining an underdeveloped site. In any event, NYSDEC staff and the other stakeholders greatly appreciated the Task Force's guidance and scholarship on brownfields issues.

In what I hope is the new normal, the section's budget issues for the 2016 fiscal year were quietly and quickly resolved by our Treasurer, Kevin Bernstein, and NYSBA staff. The projected 2016 budget is approximately $79,000.00. Currently, a surplus is possible for fiscal 2015, although that all depends on the expenses incurred and revenues received for our fall 2015 activities. The current section surplus (not including 2015 adjustments) stands at approximately
$43,000. This is more than a 100% increase since 2012. Credit and complements are due to the past several section cabinets, event co-chairs, sponsor czar Phil Dixon and NYSBA staff for these financial improvements.


Publications and Media

The section's media outlets also continue to grow and improve. Most recently, more than 150 members have joined the section's private LinkedIn page to current news and information. Credit for this innovation must be directed to Section Vice Chair Larry Schnapf and NYSBA section liaison Lisa Bataille.

To further enhance our social media foot print, more than 1,000 users have enjoyed our section blog, Envirosphere, since 2014. In particular, the section has received many positive comments about the unique NY Environmental Enforcement Update which will celebrate its third anniversary in January 2016. Blog editor Sam Campasso has overseen our success in this endeavor since 2012.

Astute observers will also notice that new information about the section's activities and functions are being added on a regular basis to the content of the ELS homepage. For example, NYSBA staff has started to add the excellent reports drafted by our House of Delegates Representative Linda Shaw and Alternate David Quist. The section must continue to utilize this tool to enhance services and information for our members.

Finally, it goes without saying that the section's signature publication, The New York Environmental Lawyer, continues to represent the highest standards of professionalism and legal scholarship. The recently published Spring/Summer 2015 edition (Vol. 35/No.1) contains eight major scholastic articles in addition to the usual section news and legal and government update features. Congratulations to the members of the Student Editorial Board, Issue Editor Keith Hirokawa and Editor in Chief Miriam Villani for a job well done.

The 2015 Fall Meeting

At this writing, we are nearing the October 2-4, 2015, Fall Section Meeting and associated MCLE program. In pursuit of our goals of increasing membership and enhancing diversity, the section designed a unique two tier registration program. New attorneys in search of transitional MCLE credits and budget relief have the option of registering for a Friday only program focused on administrative trial practice training.

Those that register for the full weekend will experience MCLE sessions addressing current issues in state oil and gas activities, crude oil train regulation and the revised state Brownfield Opportunity Area (BOA) program. There will also be a special Sunday morning program devoted to regulatory developments and the protection of threatened state bat species.

In addition to the MCLE programming, the Section will also enjoy the presentations of two distinguished dinner speakers: Neil Gifford, the Conservation Director of the Albany Pinebush Preserve Commission (Friday); and Bruce Gyori, of Manatt Phelps and Philips, on politics and climate change. This unique and well programmed event is the result of the hard work and creativity of the three co-chairs: Alita Giuda, Gene Kelly and Genevieve Trigg.


November 2015 Brownfields CLE Programs

In a new and exciting venture, program co-chairs Alan Knauf, Maureen Leary and Larry Schnapf and others are preparing a dual upstate-downstate program addressing the recent and significant changes in the New York Brownfield Cleanup Program (BCP) and related statutes, regulations and policies. The recent changes have created both opportunities for redevelopment and confusion in matters such as BCP site eligibility and tax credit calculations. The full day programs are scheduled for November 12th (Albany) and November 17th (NYC).


The 2016 Annual Meeting

The planning and programming for the Annual Section Meeting in conjunction with the NYSBA Annual Meeting is well underway. Co-chairs Susan Brailey, Dan Chorost, John Parker and Nicholas Ward-Willis are planning an exciting program including: the section's first ever in depth look at solar energy law; the legal and planning intricacies of the recent changes to the Clean Water Act; and the status of urban environmental enforcement in New York. Of course, our USEPA section members will present the usual comprehensive USEPA run down on Thursday evening thanks to the organizing efforts of our Section Secretary and USEPA attorney Marla Wieder. The program is scheduled for January 28-29, 2016, as part of the NYSBA Annual meeting that week in New York City.

Please note that the information and schedules above are subject to change. So be sure to check the NYSBA Environmental Law Section homepage for all information on section events and activities.

In closing, I wish to thank NYSBA staff for helping the section in its endeavors. In particular, we all must thank Lisa Bataille, Kathy Plog and Lori Nicoll for their guidance and patience. Of course, our work remains possible due to the contributions of our 2015-16 officers, Larry Schnapf, Kevin Bernstein and Marla Wieder as well as the extended section cabinet.

Finally, I hope to meet many of you at our coming events. If you have any suggestions or comments, please do not hesitate to contact me or any of the section's officers. Remember, to quote the late great radio talk show host Bob Grant, "Your influence counts! Use it!"

Best wishes to all, Michael J. Lesser
Environmental Law Section Chair, 2015-2016


Endnotes

(1) Emergency Response to August 2015 Release from Gold King Mine, USEPA Update, September 10, 2015. http://www2.epa.gov/goldkingmine

(2) Hughes, State to Deploy Teams to South Bronx for Legionnaires' Testing, Albany Times Union, August 7, 2015. http://www.timesunion.com/local/article/State-to-deploy-teams-to-South-Bronx-for-6432296.php

(3) Jacobs, Death Toll in Chinese Fire Rises, Along With Anger at Apparent Safety Lapses, NY Times August 14, 2015. http://www.nytimes.com/2015/08/15/world/asia/rising-anger-but-few-answers-after-explosions-in-tianjin.html?_r=0

(4) Kitroeff, Are Lawyers Getting Dumber, Bloomberg Business Week, August 24 -30, 2015, pp. 50-51. http://www.bloomberg.com/news/features/2015-08-20/are-lawyers-getting-dumber-

(5) id.

(6) NYS Board of Bar Examiners, Bar Exam Pass Rates, 2010 - 2014, http://www.nybarexam.org/ExamStats/NYBarExam_PassRates%20_2010-2014.pdf

(7) Clifford, McKinley Jr., New York to Adopt a Uniform Bar Exam Used in 15 Other States, NY Times, May 5, 2015. http://www.nytimes.com/2015/05/06/nyregion/new-york-state-to-adopt-uniform-bar-exam.html?_r=0

August 23, 2015

Registration is Now Open For Environmental Fall Meeting


Registration for the upcoming Fall Meeting is now open! Below are some details:

Fall Meeting
October 2-4, 2015
The Gideon Putnam Resort
Saratoga Springs, NY

Attendees can get up to 8.0 MCLE credit hours over the course of the weekend, including ethics and transitional credits.


The full list of programming and schedule of events in the Program Agenda.

Some of this year's meeting topics are:


  • DEC Enforcement Hearings: Procedure 101

  • Effectuating Judicial Relief Related to DEC Orders

  • Ethical Issues Arising Out of Administrative Proceedings

  • Current Developments in New York's Oil & Gas Activities


Below is the short version of the schedule of events:

Friday, October 2


  • Transitional CLE Program for Newly Admitted Attorneys

  • Welcoming Cocktail Reception beginning at 6:30 p.m. with dinner following

Saturday, October 3


  • CLE Session 8:45 a.m. to 12:30 p.m.

  • Cocktail Reception beginning at 6:00 p.m. with dinner following at 7:00 p.m.

Sunday, October 4


  • CLE Session 9:00 a.m. to 10:00 a.m.


The price for the weekend's event for NYSBA members is $235. The special pricing for Friday's MCLE program (1:30 - 5:00 p.m.) is only $75. You can find all the pricing at the Section's website.


Ready to book your hotel accommodations?

Please call the resort directly at (518) 584-3000 or 866-746-1077 and reference the group code 9N653P to receive the preferred rate of $189/night plus applicable taxes. The hotel cut-off date is September 2nd. Availability of rooms is not guaranteed up to the cut-off date.

For more questions please contact Lori Nicoll at (518) 487-5563 email lnicoll@nysba.org.

August 1, 2015

NY Environmental Enforcement Update, June 2015, Vol. II, # 6


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

Enforcement News

Hudson PCB Dredging - Was It Worth It?

Later this year, General Electric Co. expects to finish six years spent removing 2.7 million cubic yards of PCB contaminated river sediment from the Hudson River. The removal was mandated by a federal CERCLA (Superfund) agreement with EPA. Cleanup costs will be approximately $2 billion. However, experts estimate that it may take at least 5-10 years of careful monitoring to determine the ultimate benefit to overall water quality. Quality issues include whether and when to lift the current bans and restrictions on fish consumption.


Dutch Court Orders More GHG Cuts

A Dutch court ordered the government of the Netherlands to cut greenhouse gas (GHG) emissions more than proposed to combat climate change. Supporters hope that this determination can be used as an international precedent to seek similar rulings in other jurisdictions. The plaintiffs had argued that the government has a legal obligation to protect its people against "looming dangers" such as the effect of climate change on a low-lying country like the Netherlands.


E Cig. Crackdown Continues

The NY Attorney General reached agreements with four liquid nicotine retailers whose products were being sold in New York in violation of a law requiring that this form of nicotine be sold in child-resistant packaging. Combined civil penalties of $95,000.00, were assessed. This matter also reaffirmed the old axiom that ignorance of the law is no defense.


NYS Officially Completes Ban on High-Volume Hydraulic Fracturing

DEC has officially prohibited the use of high-volume hydraulic fracturing (HVHF) for the extraction of natural gas in New York State. The issuance of a formal Findings Statement completes the state's seven-year review of this process.

As previously reported, NYS had already indicated that it would enact a ban on HVHF in prior DEC-NYSDOH administrative documents. The Finding Statement represents the final administrative step in the long process to reach this decision as demonstrated by the voluminous record.


Take Heed, EPA Next Gen. Enforcement is here!

EPA plans to continue the implementation of the "Next Generation" enforcement initiative. Under this initiative, the agency will require more electronic reporting for most required environmental compliance reports. This will dramatically increase the quality of this reporting. Therefore experts opine that these improvements in electronic data collection could lead to increased enforcement.


New NY Air Regs Take Effect

DEC has finalized changes to air permit regulations for process related emissions, 6 NYCRR Part 212, Process Operations. These changes become effective on June 14th, 2015, potentially impacting any regulated source that has air pollutant emissions associated with its manufacturing operations. Sources will be required to address the rule when renewing or modifying their air permit, or when applying for a new permit regardless of permit category.


Airplane Emissions Regulation Takes Flight

EPA has started the administrative process to promulgate air pollution rules to limit the amount of greenhouse gas (GHG) emissions from aircraft engines. But, any such rules would not apply to military or recreational aircraft.


Suffolk Co. Joins Albany Co. in Banning Toxic Toys; Statewide Ban Considered

Suffolk joins at least two other NY counties in passing a law that bans the sale of toys with contents that exceed certain toxic levels.

NY legislators propose to establish a list of toxic chemicals that can cause major health problems with a similar statewide ban, the Child Safe Products Act (S.4102/A.5612). The law is now before the state legislature.


Utility Pole Pesticide Fight Looms

Pentachlorophenol (PCP) is a highly effective pesticide and wood preservative commonly used to pre-treat the nations many millions of utility poles and railroad ties. It is also highly toxic. Statewide, utilities are now being challenged over the use of PCP in utility poles. PCP has been long banned from most other products. But, groundwater contamination from the poles is of immediate concern.


State Preemption Further Affirmed (Non-environmental)

This case, People v. Diack, 2015 NY Slip Op 1376 - NY: Court of Appeals 2015, is an interesting decision about state preemption over local laws in a non-environmental area. Here, the Court of Appeals finds that state sex offender laws take precedence over local offender residency restrictions.


Sewage Pollution Rt. To Know - Comments Sought - CSO Grants Available

DEC is seeking public comment on new draft regulations for the state's sewage spill reporting law. It also announced CSO (combined sewer overflow) grant funding for municipal CSO's. The proposed regulations appear at 6 NYCRR Parts 621 and 750.


BCP Regulatory Comments Sought

The proposed rulemaking for the recently revised state Brownfield Cleanup Program (BCP) would "define the terms "affordable housing project" and "underutilized" as part of the eligibility requirements for tangible property tax credits for brownfields in New York City. The "affordable housing project" definition potentially impacts affects tax credit eligibility. The proposed rulemaking also amends the "brownfield site" definition in accordance with the recent statutory amendments."


L.I. Garbage Train Comments Sought

DEC is seeking comments on a draft permit that would allow a Farmingdale facility to be used for one year for transporting baled and bagged municipal solid waste (MSW) to evaluate the effectiveness of various safety, odor and environmental impacts. This highlights the growing problems associated with processing the growing volume of MSW on Long Island.


State Forest Rangers Join the Fugitive Hunt! Annual Report Issued

The DEC Forest Rangers have contributed a significant presence to the large law enforcement contingent searching for the two murderers that escaped the Clinton Correctional Facility (Dannemora prison) in extreme northern NY. Searching rugged terrain is part of the Ranger's usual day at the office.

Recall that the Rangers are a police force separate and distinct from the Environmental Conservation Officers and do a significant amount of criminal and violation enforcement in their own right as indicated in their most recent 2014 Annual report (at pp. 56-58).


2014 Adirondack Park Agency Annual Report Issued

The 2014 APA Annual Report is out. Legal and enforcement summaries can be found at pp. 13-14.


Road Salt - The New Acid Rain?

Extensive environmental damage has been wrought by the heavy doses of road salt applied on wintry upstate NY roadways. Several steps can be taken by the state and local governments to mitigate the negative impacts on water quality caused by salt runoff.


Energy Enforcement

Canada Levels Criminal Charges in Quebec Oil Train Explosion

Canadian prosecutors charged nine parties allegedly responsible for the horrific 2013 Oil train derailment and explosion in Lac-Megantic, Quebec. The tragedy is frequently cited in issues surrounding the Port of Albany crude oil shipments (See item below).


Oil Train Summit Decries Accident Response Risks

The Albany County Sheriff convened a conference for first responders on the dangers of crude oil train accidents. Participants included personnel from out of state areas that have suffered through these disasters (See item above).


Crude Oil Train Financial Assurance Law Proposed

Legislators have proposed a law to compel transporters and handlers of crude oil to maintain adequate financial assurance to cover cleanup costs for a potential oil train disasters.


Are Crude Oil Trains Worth It?

The Albany Times Union analyzed the economic impact of the increased crude oil train traffic for the City. The impact of this industry may be less than thought.


Pressure against Oil Trains Pays Off

Constant public pressure has forced government to reevaluate regulatory standards for the increased numbers of crude oil trains flowing through the Port of Albany.


Local Farmers Fight N.G.

Local Capital District farmers are joining environmental groups to continue the fight against both the proposed Constitution and Northeast Energy Direct (NED) natural pipelines. Both pipelines would serve as a bridge to convey natural gas generated by Pennsylvania's hydro-fracking boom to markets in the Northeast and beyond. Critics also fear that the pipelines may be used to reintroduce fracking in NY where it is currently banned.


Zoning Fight against N.G. Gas Compressor

The Town of Nassau will use zoning to prevent a pipeline company's construction of a proposed 90,000-horsepower natural gas compressor station in rural Rensselaer County. The pipeline company will rely on federal preemption to counter this effort to stop the compressor.


Keep Indian Point Nuke Plant Open!

A trade group argued that closing this nuclear power plant would place an onerous burden on the grid and electricity consumers due to the lack of replacement power sources.


Indian Point Should Close Now!

In response to the item above, Paul Gallay, the president of the Hudson Riverkeeper organization argues for the closure of the aging Indian Point nuclear power plant. He also argues that sufficient power generation exists elsewhere to cover the loss of the plant's energy contribution to the grid.


People in the News

RIT Engineer New EPA Region 2 Division Director

EPA Region 2 announced that Rochester Institute of Technology engineer Dr. Anahita Williamson will be the new Director of the Region's Division of Environmental Science and Assessment in Edison, NJ.


State & Local Enforcement

Costly Fines in Open Burn Ban Crackdown!

DEC law enforcement issued 357 tickets for open burning-related charges during the spring statewide open burn ban that ran from March to May. The charges included 144 violations, 213 misdemeanors and written warnings for infractions including leaving an unattended fire, burning during the ban, unlawful disposal of solid waste and setting a fire that endangers the property of another. Penalties can range up to one year in jail and a $33,500 fine.


Animal Cruelty Sentencing in Albany

An Albany defendant pleaded guilty and was sentenced to 60 days for one misdemeanor count of Torturing or Injuring Animals by Failure to Provide Proper Sustenance, pursuant to NYS Agriculture and Markets Law 353. Defendant intentionally failed to provide food to her four dogs and nine cats.


It's Smarter To Upgrade Than Pay Fines

A major Rotterdam chemical company will be seeking a state permit to install a new thermal oxidizer that will remove hazardous air pollution and reduce greenhouse gas (GHG) emissions. Since 2011, the company has paid significant state penalties for numerous environmental violations detected by DEC.


Federal Enforcement

Marine Polluter Criminally Fined (District of New Jersey)

A commercial ship owner pleaded guilty to failing to maintain an accurate oil record book in violation of the Act to Prevent Pollution from Ships (APPS) and providing false statements to the U.S. Coast Guard concerning the vessel's records. The company was sentenced to pay a criminal penalty of $750,000 and placed on three years of probation. The ship's crew had dumped several barrels of oil wastes into the Atlantic Ocean off Florida while in transit to New Jersey.


FEMA Fraud Indictments (NDNY)

A Schoharie man was indicted on 13 felony counts of disaster-related fraud. The defendant allegedly made false statements and submitted false documents to the Federal Emergency Management Agency ("FEMA") following Hurricane Irene while applying for and receiving benefits paying his monthly rent. These alleged phony documents included fraudulent lease agreements and rent receipts.


DEC Region 4 Administrative Orders

In the Matter of Hess Retail Stores
Order on Consent
DEC File No, R4-2015-0206-10, PBS # 4-163740

Respondent, a convenience store and gas station in the City of Hudson, was assessed a penalty of $1,200, for the failure to secure or maintain monitoring wells and secondary spill containment on petroleum bulk storage (PBS) tanks pursuant to 6 NYCRR Part 613.


In the Matter of Johnston & Rhodes Blue Stone Co.
Order on Consent
DEC File No. R4-2015-0511-58

In a most unusual mining permit violation, a Walton, Delaware County mining company was assessed a $2,000, civil penalty for mining too close to an eagle nest in violation of ECL §71-1305(2) and the underlying permit special condition. Legally, eagles are usually protected by the provisions of Article 11, of the Environmental Conservation Law (ECL). But, prosecutorial discretion allows DEC to choose which law to apply in any given enforcement situation.


In the Matter of Atlas Health Care Linen Service
Order on Consent
DEC File No. R4-2015-0414-51

A Troy, NY commercial linen concern was found in violation of the air pollution standards of 6 NYCRR Part 200.7, for emitting lint into the environment from the external fan of a lint control unit. A civil penalty of $1,000 was assessed. Note: after 26 years, even I have to admit that lint based air pollution is a new one on me!


DEC Administrative Enforcement Orders, Decisions and Rulings

In the Matter of 715 Heights Corp., (170th Street)
Commissioner's Order, June 16, 2015
DEC Case No. 2-601666JB

The Commissioner granted the staff's motion for a default judgement pursuant to 6 NYCRR Part 622.15(b) and ordered Respondent to pay a $5,000.00, civil penalty for
violating ECL 17-1009 and 6 NYCRR 612.2 for failing to renew the registration of its NYC petroleum storage facility on or before the previous expiration date of July 1, 2013.


In the Matter of Wendy Daby
Commissioner's Order, June 16, 2015
DEC Case No. R5-20140225-2100, PBS No. 5-514063

The Commissioner granted the staff's motion for a default judgement pursuant to 6 NYCRR Part 622.15(b) and ordered Respondent to pay a $11,300.00, civil penalty with $8,000.00, suspended for violating five separate petroleum bulk storage (PBS) regulations in 6 NYCRR Parts 612 and 613. The violations derive from the improper closure and maintenance of above ground gasoline storage tanks located at Respondent's convenience store and gas station located in the Vermontville, Franklin County.


In the Matter of Craig D. Kincade
Commissioner's Decision and Order, June 11, 2015
DEC VISTA Index Nos. CO6-20061107-24 and CO6-20080331-9

Respondent allegedly maintained an unpermitted floating dock and stone steps, and cut, removed, injured, or destroyed trees on state forest preserve lands adjacent to the Stillwater Reservoir in the Town of Webb, Herkimer County in violation of ECL 9-0303(1) and (2). Respondent was assessed a civil penalty of $400, with that sum suspended, contingent upon respondent complying with the terms and conditions of the order.

This Decision and Order raises three points of interest:


  • When commencing an action by administrative complaint, Department's staff must amend that complaint - with all of the requisite procedural safeguards - rather than file for a 6 NYCRR Part 622.12, order without hearing, if new information arises subsequent to commencement;

  • An estoppel defense will not apply even if permission for the errant conduct on state lands had been approved by another state agency if DEC approval is also required;

  • A defense based on alleged vested property rights on state lands - here, a right to launch water craft - will likely require an exhaustive historical review of both the law and the individual history of the parcel at issue.

In the Matter of Lopatowski, Anthony d/b/a Safeguard Exterminating Services Inc.
Commissioner's Order, June 11, 2015
DEC File No. R2-20130111-12

The Commissioner granted staff's motion for a default judgment and assessed a civil penalty against Respondent pesticide applicator of $121,000.00, for the numerous and multiple sections of ECL 33-0907(1), ECL 33-1301(8-a), ECL 33-0903, ECL 33-1301(7) and 6 NYCRR Parts 326.7(a), 6NYCRR 325. Violations included operating without insurance, proper registrations, an applicator's certification and related records. On two occasions, Respondent also possessed "restricted use" pesticides without a purchase permit and without being a certified applicator.


Weird News

Corrupt, but Green, Scrap Metal Thieves Caught

Several City of Rensselaer municipal officials were criminally prosecuted for diverting the proceeds derived from recycled scrap metal from the City's coffers to their own pockets. But hey, at least they were still recycling.


Ray Gun Case Status (NDNY)

In the Update's favorite science fiction case, a federal Judge denied defendant's motion to dismiss and the accused "ray gun" KKK terrorist will go to trial in the NDNY.


Attention Earthlings - Another Solar Storm Hits!

This is at least the second major solar storm to hit Earth in 2015. Scientists fear that sooner or later the radiation emanating from one of these powerful phenomena will short circuit our now electronic and digital gizmo laden world.


It's Pollinator Awareness Week! How Did you Celebrate?

Quote, "Governor Andrew M. Cuomo issued a proclamation commemorating the week and affirming that New York State is committed to the promotion of the health and recovery of the pollinator population, which will be the focus of a new state agency task force." That just about says it all.


Annual NY Goose Drive Cancelled

Volunteer geese herders were disappointed when this year's goose drive, scheduled for the Wilson Hill Wildlife Management Unit, was cancelled by the DEC.

I wonder if the goose drive is anything like this one?

_____________________________________________________________________________________________________________________

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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