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