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.

_____________________________________________________________________________________________________________________

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.

December 6, 2014

NY Environmental Enforcement Update October 2014, Vol. 1, Issue #22


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

Enforcement News

Drums Along the Mohawk - Riverkeeper to Patrol the Mohawk River

The public interest group, Riverkeeper has vowed to start patrols to search for water pollution on the Mohawk as it already does along the Hudson River.


NY AG to Challenge Nuke Storage Rules

The NY Attorney General joined other states to challenge recently issued Nuclear Regulatory Commission (NRC) rules that govern the long-term storage of highly radioactive nuclear wastes on-site at reactors (including the three Indian Point reactors in Westchester County) for 60 or more years after the reactors close.


Cuomo Admin. Allegedly Edits Fracking Study

Officials in the Governor's office may have altered an otherwise objective study in order to frame the controversial natural gas extraction process known as hydraulic fracturing (fracking) in a more favorable light.


Norlite Continues - Hazardous Waste Incinerator Permit Reissue Challenged

Due to numerous health complaints and a serious history of past environmental violations, local environmental groups have demanded that the Norlite facility comply with a list of operating requirements before DEC reissues a hazardous waste Transport, Storage, Disposal Facility (TSDF) permit.


DEC to Use Discretionary Enforcement for Greenhouse Gas Emissions

In an enforcement guidance letter issued by the New York State Department of Environmental Conservation (DEC), the agency will exercise enforcement discretion for parts of 6 NYCRR Parts 201 and 231, as these pertain to the regulation of greenhouse gas (GHG) emissions due to the recent U.S. Supreme Court decision in Utility Air Regulatory Group (UARG) v. EPA. In that case, the Court held that EPA may not treat GHGs as an air pollutant for purposes of determining whether a stationary source is a major source required to obtain a Prevention of Significant Deterioration ("PSD") or Title V permit. DEC will exercise discretion as outlined until the courts and EPA clarify the status of GHG in the major facility air permit and enforcement schemes.


NYC CEQR Database

The Mayor's Office of Environmental Coordination website now allows for online searches of the City Environmental Quality Review (CEQR) project records database for CEQR projects filed from January 1, 2005 to the present.


National Grid Enters CERCLA Settlement in Saratoga

The utility will undertake an estimated $6.5 million environmental cleanup of coal tar polluted soil and ground water at a former manufactured gas facility under a proposed settlement with the EPA.


NYSDOH Commissioner Issues Rare Emergency Ebola Order

Acting State Health Commissioner Howard Zucker issued a rare Commissioner's Order requiring medical facilities to follow protective protocols to prevent the spread of the Ebola virus. This action was part of the state's overall response to the Ebola threat.

In a related Ebola matter, DEC also issued instructions for the handling and disposal of regulated medical waste (RMW) that may be contaminated by the Ebola virus. The information includes links to relevant NYSDOH and federal regulations and guidance.


State Agency Sued for Administrative Overkill

A NY liquor retailer has sued the NYS Liquor Authority (SLA) for enforcing rules involving out of state liquor sales. The SLA had cited the retailer using a New York regulation that says it can revoke, cancel or suspend a liquor license due to "improper conduct by the licensee." For the environmental practitioner, the case should provide insights into the limits of the state's administrative authority to bring enforcement and impact license decisions.


EPA Head Visits Lake Champlain

EPA Administrator Gina McCarthy vowed to continue efforts to clean up Lake Champlain on a visit to the Lake for a meeting with Vermont residents and politicians. It was unclear if NY representatives were present or even invited.


NYSDOH Sampling Lab Fined for Negligent Results

Local residents were upset to say the least over the $525,000 settlement between the NYS Department of Health and a private contract laboratory for improperly handled water tests at the Dewey Loeffel Landfill superfund site. The site is on the EPA National Priority List (NPL).


Energy Enforcement and Regulation

Improved Crude Oil Cars are Now Used in Albany

Global Partners, the operator at the Port of Albany, has stated it is now only accepting upgraded and sturdier model DOT-111 crude oil tank cars to transport oil from the Bakken fields of North Dakota via the Port. This is a marked safety improvement over the previous models.


More Enforcement Demanded after Selkirk Propane Car Derailment

In a development related to the Port of Albany oil train controversy, vigilance was also demanded after a misplaced piece of safety equipment triggered the derailment of 18 railroad cars at the nearby Selkirk rail yard. The derailed cars included empty propane tanker cars.


Bomb Train Protesters Petition for Summary Abatement

Those seeking to stop the movement of crude oil trains through the Port of Albany sought to have the DEC Commissioner invoke the rarely used emergency remedy of Summary Abatement (ECL Section 71-0301)
In general, if the commissioner may order the cessation of an activity if he finds that it is causing, engaging in or maintaining a condition or activity which presents an imminent danger to the health or welfare of the people of the State, or results in or is likely to result in irreversible or irreparable damage to natural resources. It is unclear whether the Commissioner is swayed by proponents of this action.


Crude Oil Train Safety Ltr. Sent to N. Dakota Gov

The DEC and NYSDOT Commissioners sent a letter to the North Dakota Governor in support of proposed North Dakota regulatory changes that would require oil producers to remove volatile gases from Bakken crude oil prior to shipping the that oil across by rail to New York and other locations. This process reduces the ignitability of the oil.


Joint Crude Oil Train Spill Response Exercises Held

As part of the agencies increased awareness of potential crude oil train spills, DEC conducted a joint oil spill training exercise with Canadian Pacific (CP) railroad, and the Albany Fire Department on the Hudson River to implement emergency response plans for the Port of Albany and other locations.


Port of Albany Air Study Attacked

Experts issued a report which heavily criticized DEC conclusions about the air quality in and around the Port of Albany. This controversy also relates to the continued use of the Port by crude oil trains.


Albany Locals Demand Crude Oil Trains Slow Down

Local officials are calling on the federal transportation secretary to use his emergency authority to limit speeds on crude oil trains that pass through the Port of Albany even before new safety requirements take effect nationwide.


DEC Crude Oil Train Timeline

DEC has provided a handy summary of New York's efforts to address the issues surrounding the increase in crude oil train traffic through Albany and the Port of Albany in the particular.


LNG Draft Regulation Comment Period Extended

The DEC sought public comments on revised proposed regulations for the construction and operation of liquefied natural gas (LNG) facilities in New York State. A 30-day public comment period will begin Nov. 12 and run through Dec. 12. DEC proposes to restrict permitting to facilities with a capacity of no more than 70,000 gallons (the safety threshold used by the National Fire Protection Association (NFPA).


Legislative News

Community Risk and Resiliency Act (A06558/ S06617-B)

The Governor signed the Community Risk and Resiliency Act (CRRA) to strengthen state preparedness for the effects of climate change and help protect communities against severe weather and sea level rise in the wake of Hurricane Sandy and other recent natural disasters. The Act requires State agencies to consider future physical climate risks caused by storm surges, sea level rise or flooding in certain permitting, funding and regulatory decisions.


People in the News

Passing of Two Prominent ELS Figures

The Environmental Law Section mourns the losses of Ernest J. Ierardi and Frank P. Grad.

Ernie Ierardi was a Past Chair of the Environmental Law Section ('84-'85) and a partner in the law firm now known as Nixon Peabody. He was also an early leader in environmental and utility law and held numerous prestigious professional positions. He was held in high regard by both the American Bar Association and NYSBA.

Professor Grad was an environmental law pioneer and Columbia University Professor Emeritus. His accomplishments and contributions to the practice of law are too numerous to list here.

The Section extends its condolences to the families and friends of these two extraordinary individuals.


New DEC Region 4 Director

The DEC has promoted Keith D. Goertz to be the new Regional Director of the agency's Region 4 office in Rotterdam. Previously, he had served as Acting Region 4 Director since May 2014.


DEC Commissioner Moves into Energy Storage Policy

Former DEC Commissioner Denise Sheehan is now a Senior Policy Advisor for The New York Battery and Energy Storage Technology Consortium (NY - Best).


Brownfields Advocacy Group Gets New Leadership

New Partners for Community Revitalization (NPCR) has elected longtime Environmental Law Section member, Val Washington, to be the new president and board chair. She will replace Jody Kass a widely-regarded expert on state and national brownfields policy and co-founder of the organization.


2014 NY Wildlife Officer of the Year Announced

DEC Environmental Conservation Officer (ECO) Mark Colesante of Auburn, Cayuga County, received the 2014 "Officer of the Year" award from the Shikar-Safari Club International, a conservation-based sportsmen organization.


State and Local Enforcement

Chemical Co. Assessed $400k Pollution Penalty by DEC

A Schenectady chemical manufacturer will pay a $400,000 state pollution penalty for air pollution and other violations as per a settlement entered with the DEC. The company also agreed to hire an outside engineer and will test its air emissions stacks for levels of volatile organic compounds (VOC), nitrogen oxide (NOx), carbon monoxide (CO) and soot. This is the fifth major enforcement action in four years brought against the company brought by DEC.


Drug Co. Pays $45k State Air Pollution Penalty

A Rensselaer drug research plant paid a $45,000 state air pollution fine to the DEC for emitting more than 11 times the legal limit of a toxic solvent toluene (more in the DEC Region 4 Administrative Orders Section below).


Tappan Zee Contractor Zapped for Pollution at Port of Coeymans

A company that started work at the Port of Coeymans on the new Tappan Zee Bridge project without necessary state environmental permits has been slammed with a $10,000 fine and also must pay $55,000 to a DEC-selected environmental benefit project (EBP). The violation was first discovered by the Hudson River watch dog group, the Riverkeeper (more in the DEC Region 4 Administrative Orders Section below).


NY AG Sues to Collect Bottle Bill Deposits

The Attorney General commenced a lawsuit alleging that a Monroe County-based beverage company violated provisions of New York's Returnable Container Act, a/k/a the "Bottle Bill," after the company allegedly collected container deposits but failed to remit almost $80k in unclaimed deposits to the State.


Federal Enforcement

Dumping Poultry Offal is Awful for Ramapo River! (SDNY)

The U.S. Attorney and EPA Region 2 entered into a consent decree settling a civil lawsuit against a poultry processing plant in Orange County for violations of the Clean Water Act ("CWA"). The defendants discharged poultry slaughterhouse waste into storm drains, sewers, and Ramapo River tributaries near the Village of Kiryas Joel. Defendants will pay a civil penalty of $330,000 and will submit preventative emergency operation and corrective action plans.


$16 Million Newtown Creek Bankruptcy Settlement (SDNY)

The U.S. Attorney and the EPA Region 2 entered into a settlement agreement with a bankruptcy trust on behalf of Getty Petroleum related parties which resolves Getty's CERCLA and OPA liabilities at the Newtown Creek Superfund Site in Brooklyn and Queens.


Fish Monger Jailed, Pays $500k to NYS Conservation Fund

A federally-licensed fish dealer from Brooklyn was sentenced today in federal court for one count of wire fraud for his role in systematically under-reporting fluke (summer flounder) harvested as part of the federal Research Set-Aside (RSA) Program. He will serve four months in prison followed by three years of supervised release, pay a $6,000 fine, and pay $15,000 towards community service and $510,000 in restitution to the Marine Resources Account of the New York State Conservation Fund. He was also ordered to surrender his federal dealer license and was banned from accessing a NOAA computer system.


EPA Region 2 Administrative Announcements

This new section is a brief summary of the major announcements of the month made by EPA Region 2.


Saratoga Superfund Settlement

EPA announces proposed settlement with Niagara Mohawk Power Corporation for cleanup of Saratoga Springs Superfund site. The value of the cleanup work is estimated at $6.5 million.


Lead Checks Offered

EPA encourages Newburgh families to have soil checked for lead.


L.I. Sound Gets Better

Water quality improves in Long Island Sound as nitrogen pollution declines.


Olean Well Field Cleanup Proceeds

EPA finalizes changes to cleanup plan to address VOCs at the Olean well field Superfund site on the Alleghany River in Cattaraugus County in New York.


Cidra, Puerto Rico Site Cleanup Proceeds

EPA finalizes cleanup plan for Cidra, Puerto Rico Superfund site of VOC-contaminated drinking water.


Onondaga Lake - Lower Ley Creek Cleanup Proceeds

EPA finalizes cleanup plan for lower Ley Creek portion of Onondaga Lake Superfund site, with $17 to $25 million to be spent to address PCBs.


GE Agrees to More Hudson River Study

EPA announces agreement with GE to further investigate upper Hudson River floodplain and conduct a comprehensive study costing about $20.5 Million.


Newburgh Site to be Removed from Superfund List

EPA proposes to remove Newburgh, NY site from Superfund list. The proposal involves $45 million to be spent to address a bankrupt metal processing site on the Hudson River.


DEC Region 4 Administrative Orders

In the Matter of SI Group
Order of Consent
DEC Case No. R4-2014-0131-17

Respondent owns and operates a major chemical manufacturing facility in Rotterdam, Schenectady County and was assessed a civil penalty of $400,000 for air pollution permit, hazardous waste handling and chemical bulk storage (CBS) regulatory violations. These include numerous violations of 6 NYCRR Parts 200, 227, 372.2, 373-3.3 and 598. Respondent has an extensive ECL violation history (see above item in Enforcement News).


In the Matter of PGS Millwork
Order of Consent
DEC Case No. R4-2014-0131-17

Respondent, an architectural and woodworking business in Greenport, Columbia County was assessed a civil penalty of $2,500, for twelve hazardous waste record, manifest, signage and safety regulatory violations including parts of 6 NYCRR Parts 372.2, 374-3.2 and 376.1. Many of the violations involved the handling and disposal of waste (HID) lamps which can contain the heavy metal mercury and other toxic materials.


In the Matter of Fortitech Inc.
Order of Consent
DEC Case No. R4-2014-0610-122

Respondent, a Schenectady food nutrient formulator was assessed a civil penalty of $900, for eight hazardous waste record, manifest, signage and safety regulatory violations including parts of 6 NYCRR Parts 372.2, 374-3.2. Many of the violations involved the handling and disposal of waste fluorescent lighting which can contain the heavy metal mercury and other toxic materials. Respondent was also cited for failing to file a hazardous waste exemption notice for recycled electronics in violation of 6 NYCRR Part 371.1(c)(7).


In the Matter of Aramark Management Services
Order of Consent
DEC Case No. R4-2014-0821-140

Respondent, a pesticide applicator for Hartwick College in Oneonta, was assessed a civil penalty of $1,500, for violations of 6 NYCRR Parts 325.40(h), 325.26(a) and 325.2(d), for failing to place visual notification markers in treated areas, not possessing proper product labels and not having a proper business registration for the applicator's truck.


In the Matter of AMRI Rensselaer
Order of Consent
DEC Case No. R4-2014-0917-153

Respondent, a Rensselaer a drug manufacturer was assessed a civil penalty of $45,000, for exceeding emission standards for toluene during mandated air pollution stack tests in violation of 6 NYCRR 201-6.5(a) (2). This activity constitutes a failure to comply with conditions of the facility's Title V air permit. (see Enforcement News item above).


In the Matter of Tappan Zee Constructors
Order on Consent
DEC Case No. R4-2014-0902-144

Respondent applied for a permit (including a storm water runoff plan) for dredging a portion of the Port of Coeymans to allow for the off-loading and loading of bridge sections for transport for use in the construction of the new Tappan Zee Bridge. By commencing operations without a final water permit, Respondent violated 6 NYCRR 750-1.4(b). But, in a rare instance of prosecutorial discretion, DEC also cited Respondent for violating SEQRA regulations at 6 NYCRR 617.3(a) (for commencing construction of the project and disturbing the site prior to complying with SEQRA). To do this, DEC had to invoke the ECL universal enforcement section at ECL 71-4003, which applies to ECL sections that do not have specific enforcement provisions by law. Respondents were assessed a civil penalty of $10,000 and was ordered to fund an environmental benefit project (EBP) valued at $55,000. The violations were initially reported by the Hudson River Keeper organization.


In the Matter of Columbia County
Order on Consent
DEC Case No. R4-2014-0715-129

Columbia County, the operator of a publically owned treatment works (POTW) was assessed a civil penalty of $2,800 for exceeding its State Pollutant Discharge Elimination System Permit (SPDES) effluent limits in violation of 6 NYCRR 750-2.1(e). The periodic discharge monitoring reports (DMR) required by the permit indicated the violations.


DEC Administrative Enforcement Orders, Decisions and Rulings

In the Matter of Seymour Excavating Inc. and Burton D. Seymour
Commissioner's Order, September 29, 2014
DEC Case No. R6-20130419-13

The Commissioner's granted staff's motion for a default judgment against Respondent corporation pursuant to 6 NYCRR 622.15 and assessed a civil penalty of $14,000, for mining without a permit in violation of the Mined Land Reclamation Act (MLRA) ECL 23-2711(1) and 6 NYCRR 421.1(a), for violating a previous Order on Consent and the failure to file a valid reclamation bond. Respondent was also ordered to submit documentation and a reclamation plan. However, the Commissioner dismissed all causes of action against the corporate CEO for staff's failure to produce evidence of individual liability.

PBS Tank Administrative Hearing Defaults

In the following six 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 $5,000 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 101-09 West 115th Street Housing Development Fund Corporation
Commissioner's Order, October 14, 2014
DEC Case No. 2-469750BT

In the Matter of 2477 Grand Ave. Corp 2477 Grand Ave. Corp.
Commissioner's Order, October 14, 2014
DEC Case No. PBS 2-609696C

In the Matter of 163 Lefferts Place Housing Development Fund Corporation
Commissioner's Order, October 6, 2014
DEC Case No. PBS 2-608521YW

In the Matter of 75 & 81 Orchard Associates LLC
Commissioner's Order, October 6, 2014
DEC Case No. PBS 2-097721NBT

In the Matter of EV 1st Avenue Properties Owner, L.P.
Commissioner's Order, September 29, 2014
DEC Case No. 2-609074YW

In the Matter of XHIKU, LLC
Commissioner's Order, September 22, 2014
DEC Case No. 2-605692NSC


Weird News

Giant Crab Spotted in UK? Debunked!

This viral image brought to mind an earlier environmental exploration of our primal fear of gigantic crustaceans - "Attack of the Crab Monsters."


Bill Gates Needs New Operating System - Shovel 1.0

The world's richest man has been cited by Wellington, Florida for the improper storage of horse manure at his home and storing manure too close to a waterway.


More Giant African Land Snail News

To follow up on past items, this real life monster and invasive species continues to slowly - ever so slowly - slime its way up the Florida coast.


More Big Foot News

Approximately 20% of Americans believe that the mythical Sasquatch exists. This and other fascinating Big Foot facts were bandied about at the recent Chautauqua Lake Bigfoot Expo held in Chautauqua, New York. See you there next year.


_____________________________________________________________________________________________________________________

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.

November 29, 2014

NY Environmental Enforcement Update September 2014, Vol. 1 #21


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

Editorial Note: This Update introduces a new section: Energy Enforcement and Regulation. The increased federal, state and local involvement in the mining, processing, transportation and storage of fossil fuels is expanding and certainly requires additional focus in the Update.


Enforcement News

Roberto Clemente Park Public Meeting

The DEC held a public hearing to explain the proposed remediation plan for this illegal asbestos dump site located in a central Suffolk County environmental justice community. Excavation is the primary remedy.


NY Crime Reports Show Steep Decline in Haz. Waste Prosecutions, 2006 to 2013

A review of hazardous waste and substance reports compiled by the NYS Division of Criminal Justice Services indicates that the criminal prosecution of related crimes has declined and virtually ceased in all categories between 2006 and 2013. The report shows that 2011 is the year when criminal prosecutions dramatically dropped. However, the Reports do not address non-hazardous waste or federal criminal prosecutions.


NY AG Supports Broader CWA Jurisdiction

The NY Attorney General joined eight states in endorsing a proposed federal rule that clarifies and broadens the definition of waterways subject to the jurisdiction of the Federal Clean Water Act (CWA). Currently, certain waterways are omitted from federal jurisdiction.


"Oxy" Pays 190 million to NJ

Occidental Chemical Corp. will pay New Jersey $190 million for past cleanup and removal costs generated by the Passaic River pollution generated by the former Diamond Alkali NPL Site. The settlement, if approved, will bring the total amount recovered by New Jersey to $355.4 million.


Costco Zapped for Nationwide Freon Releases

Costco Wholesale Corp. has agreed to pay $335,000 and spend almost 2 million to cut its emissions of greenhouse gas chemicals from refrigeration equipment at more than half of its stores nationwide, according to documents filed in California federal court by the EPA. That agency alleged Costco violated the federal Clean Air Act (CAA) by failing to repair leaks of the Refrigerant R-22. Costco will fix refrigerant leaks and make improvements at 274 of its stores at an estimated cost $2 million over the next three years. (The settlement references a number of Costco locations in N.Y.)


18 Billion Fine Possible for BP Gulf Explosion and Spill

This disposition is noteworthy as the growth in the size of environmental fines and penalties continues ever upward.


Hazardous Waste Violator Seeks Permit Renewal

A draft 6 NYCRR Part 373 hazardous waste permit for MPM Silicones has been presented for public comment. MPH is a large silicone manufacturing facility in the towns of Waterford and Halfmoon in Saratoga County where hazardous wastes are treated and stored. The facility is under extra scrutiny due to past federal and state enforcement violations.


Uranium Exposure Study Ongoing at Former NL Industries Site

Despite the passage of almost three decades of investigation and clean up, health studies for this former depleted uranium processing plant near Albany still continue. Partial results are available from the NYSDOH.


NY Intervenes in Green House Gas Case

The NY Attorney General is filing a motion to intervene in a court challenge to a 2010 settlement agreement with the federal Environmental Protection Agency (EPA). The 2010 settlement agreement is being challenged by a coalition of 12 states, many of which are in coal-producing regions.


NYC Recycling Crackdown

Under the new Mayoral administration, reported recycling violations increased 47 percent in 2014, when compared to last year's data.


New NYS Invasive Species Regulations in Effect

The latest regulations issued to fight invasive species were developed by DEC in cooperation with the NYS Department of Agriculture and Markets. Since 2011, $30 million in state funds has been allocated toward preventing the spread of invasive species in NY.


Susquehanna River Basin Commission Issues 2013 Annual Report

The inner workings of the SRBC are revealed for Susquehanna River devotees.


Energy Enforcement and Regulation

Global Partners Permit Comment Period Extended

DEC extended the public comment period for the controversial Global Companies permit application at the Port of Albany for an additional 60 days due to broad public and community interest. Global previously submitted a permit application to modify a Title V Air Facility permit to allow the company to heat petroleum products, including crude oil transshipped through the Port of Albany facility.


Underground Gas Storage Controversy in the Finger Lakes Region

There is a growing regulatory conflict involving the use of old salt caverns for the storage of propane and perhaps surplus natural gas in the future.


Big Wind to be Studied On L.I. Coast

In the continuing quest to harvest the substantial wind resource of the Long Island coast, a consortium will study how to best harvest energy generated by ocean winds off the coast of Long Island.


USDOT Proposes New Rules for Securing Crude Oil Trains

A unit of USDOT proposed new rules to prevent crude oil and hazardous material trains from being left unattended and unsecured on the tracks. In the Federal Railroad Administration's latest proposed change, the agency proposed that such railroad cars should not be left unattended unless specific brake safety procedures are followed.


Jt. Federal-State Crude Oil Train Inspections

NY and federal regulators completed a targeted crude oil tank car and rail inspection due to the dangers of crude oil transport. The inspections included 766 crude oil tank cars and approximately 167 miles of track. Nine hazardous materials violations were issued and 658 defects were detected overall.


Legislative Update

New Waterway Invasive Species Law Signed

New legislation prohibits the launch of watercraft in New York State without taking reasonable precautions to prevent the spread of aquatic invasive species. The bill (A9619-B, S7851-B) advances current efforts by the State and private organizations to halt the introduction and spread of invasive aquatic species into New York's waters.


TRIS Ban Enacted

A NY law now bans the sale of products containing TRIS (aka THAM), a cancer-causing chemical used as a flame retardant in consumer products. The law (A4741/S3703-B) expands the definition of TRIS to include an additional chemical, TDCPP (TRIS(1,3-dichloro-2-propyl) phosphate). It also prohibits the use of TRIS in numerous types of consumer child care products. TRIS alternatives are now available to the industry.


New Wood Construction Notice Bill Protects Firemen

A new state law (A1896/S6675) requires property owners to notify their local governments whenever a newly constructed or rehabilitated residential structure is comprised of a truss type, pre-engineered wood or timber construction. In a fire, such structures become fragile and can collapse with little or no warning.


Enforcement People in the News

DEC Region 4 Director Now At Harris Beach

Eugene "Gene" Kelly, formerly the DEC Region 4 Regional Director is now Senior Counsel to Harris Beach PLLC in Albany.


NYS AG Section Chief Now At Pace Law

Environmental Law Section member Janice Dean bid farewell as Section Chief in the N.Y.S. Attorney General's EPB Toxics and Cost Recovery Section to become Chief of Staff to Pace Law Dean David Yassky in White Plains.


DEC ALJ Now Board Member For Non-profits

Hon. Helene Goldberger recently retired as an DEC Administrative Law Judge and is now a Board Member for both the Mohawk Hudson Land Conservancy and the E.N. Huyck Preserve. Ms. Goldberger is also a former N.Y.S. Assistant Attorney General. (Help Preserve Land During Development, Albany Times Union 9/21/14, page D-1)


Harris Beach Energy Attorney Now Director of Commission on Rural Resources

Environmental Law Section member Jillian D. Kasow has accepted a position as Director of the N.Y.S. Senate Legislative Commission on Rural Resources in Albany. Formerly, she had worked at Harris Beach PLLC on the firm's energy industry team.


State & Local Enforcement

Criminal Conviction for NYSDOH Rip Off

A felony guilty plea was entered by a former NYS Department of Health (DOH) contract employee for padding his bills and stealing more than $110,000 from the state. He pleaded guilty to one count of offering a false instrument for filing in the first degree, PL 175.35, a Class E felony. He will reimburse the state $110,000 and is expected to receive 30 days in jail and five years' probation with community service.


NYSDOH Zaps Negligent Water Testing Lab with $525K Settlement

The NYS Health Department settled a case with a privately operated laboratory due to a "flaw in test procedures" which raised serious questions about the credibility of some pollutant sampling at the Dewey Loeffel Landfill Superfund waste site in Nassau, Rensselaer County. The $525,000 settlement consists of two components: a civil penalty of $275,000 and $250,000 to fund environmental cleanups in Schenectady County where the lab is located.


DEC Penalizes Norlite for Stinky Incinerator Violations

The only commercial hazardous waste incinerator in NY will pay penalties of nearly $30,000 for environmental violations including those for a recent airborne chemical release. As part of a settlement with DEC, the Norlite Corp. will also pay $64,000 for environmental benefit projects ("EBP") to be selected in the area near the plant. The Consent Order is more fully described in the Region 4 Section below.


Fulton Co. Man Pleads Guilty to Environmental Violations

A Fulton County Court sentenced a man to pay a $15,000 fine for violating the NYS Environmental Conservation Law. The DEC Conservation Police's Bureau of Environmental Crimes Investigation Unit ("BECI") conducted a two-year investigation of a vehicle dismantling operation which revealed the release of hazardous substance fluids and debris on site. The Fulton County District Attorney's Office prosecuted and the defendant pleaded guilty to Endangering the Public Health, Safety or the Environment in the fourth degree, a Class A misdemeanor, ECL 71-2711, and unlawfully operating a solid waste management facility, ECL 71-2703(2), also a Class A misdemeanor. The defendant was also ordered to clean up the site under the supervision of DEC.


OSHA/NYSDOL Report

Ice Plant Fined for Ammonia Violations

Arctic Glacier USA Inc., a Brooklyn, N.Y. ice plant, was fined $264,700, by OSHA for 19 violations of workplace safety standards following a comprehensive inspection which noted deficiencies in the plant's process safety management (PSM) program. OSHA's PSM standard includes the regulation of ammonia used in the plant's refrigeration system.


Federal Enforcement

Asbestos Dumpers Convicted Under CAA & CWA (WDNY)

A defendant was convicted of violating the Clean Air Act ("CAA") and sentenced to two years of probation and a fine of $100,000. An additional defendant was also sentenced to one year probation and a fine of $25,000 for violating the Clean Water Act ("CWA"). The corporate defendant was also ordered to form an environmental training program for its employees. A $5,000 penalty was also paid to the Occupational Safety and Health Administration ("OSHA") to resolve related violations. Defendants were engaged in the demolition of buildings containing asbestos on either side of the Chadakoin River.


Concrete Slurry Discharges Lead to CWA Convictions (NDNY)

Several defendants pleaded guilty for violations of the Clean Water Act ("CWA") related to the process of hydro-demolition to renovate concrete structures. Hydro-demolition uses high pressure water to remove concrete from buildings. The waste-water created contains a slurry of industrial waste which included CWA pollutants. The pollutants were released into the Susquehanna River.


Asbestos Release Criminal Sentencing (NDNY)

A New York property owner and his manager were sentenced to 21 months for conspiring to violate the Clean Air Act ("CAA") for the unsafe removal of asbestos during renovations, for releasing asbestos into the environment, and for failing to notify the authorities about asbestos releases in violation of both the CAA and the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). The prison sentences will be followed by two years of supervised release and the owner must also pay a $25,000 fine.


EPA Hits SUNY Downstate Med. With Hazardous Waste Complaint (EPA R2)

EPA Region 2 issued a legal complaint against Brooklyn's SUNY Downstate Medical Center for violating parts of the federal RCRA law for the improper management and storage of hazardous wastes generated and stored in improperly labelled or corroded and leaking containers. Proposed fines may exceed $150,000.


Gowanus Canal Cleanup Settlement Proposed (EPA R2)

EPA Region 2 proposed a $20 million CERCLA settlement with a party to undertake the remediation on the banks of the Gowanus Canal which will include the removal of 17,500 yards of contaminated soil.


Storm Sewer Releases Stopped in PR (EPA R2)

EPA Region 2 settled Clean Water Act violations associated with unlawful water pollutant releases into the municipal storm sewer system of Culebra, Puerto Rico. In the settlement, up to forty homes will also be connected to the local sewer system (POTW).


Several Buffalo Gas Stations Pay $287K for PBS Tank Penalties (EPA R2)

The owners and operators of four gasoline stations in the Buffalo, New York area have been ordered to pay the EPA a total of $287,100 in penalties. New Yorkers that think that state petroleum bulk storage ("PBS") tank enforcement is onerous should take heed of this parallel and rather draconian EPA Region 2, enforcement action. The violations cited are very similar to those in state regulations in 6 NYCRR Parts 612, 613.


DEC Region 4 Administrative Orders

In the Matter of the Enterprise Terminals & Storage LLC
DEC File No. R4-2014-0820-139
Order on Consent, Sept. 9, 2014

Respondent owns and operates a propane gas pipeline that runs through Bethlehem in Albany County. However, local residents were subjected to a rotten egg odor generated by a related pipeline facility due to the additive mercaptan (which creates that aroma for safety reasons). DEC alleged violations of the generic air nuisance regulation as set forth in 6 NYCRR Part 211.1, and assessed a civil penalty of $5,000.


In the Matter of Moonlight Horticultural Services
DEC File No. R4-2014-0715-128
Order on Consent, Sept. 10, 2014

Respondent, a commercial pesticide applicator, was assessed a $500 civil penalty for a violation of 6 NYCRR 325.40 (a)(5) for failing to provide the correct address of the treated premises in the written commercial lawn care contract.


In the Matter of RWC, Inc.
DEC File No. R4-2014-0722-131
Order on Consent, Sept. 10, 2014

Respondent, a commercial herbicide applicator, violated 6 NYCRR 325.1 (s)(4) by failing to post visual notifications markers prior to applying pesticides within 100 feet of a town park and two private dwellings.


In the Matter of Norlite Corporation
DEC File No. R4-2014-0017-6
Order on Consent, Sept. 3, 2014

Respondent, a manufacturing and hazardous waste management facility, was assessed a civil penalty of $29,600, and ordered to fund an Environmental Benefit Project (EBP) in the amount of $64,000 for the benefit of the City of Cohoes. The Department will have the "sole discretion to determine the appropriate use of the EBP funds" in accordance with EBP policy (CP-37).

Hazardous waste (RCRA) and air pollution violations include:
- 6 NYCRR Part 211.2, due to public nuisance for the accidental release of methyl methacrylate vapor;
- Respondent's failure to have a Hazardous Waste sign affixed to Tank 200 B is a violation of 6 NYCRR Part 373-2.10(e)(4) and a Condition of the permit;
- 6 NYCRR 373-2.2(g) (4) for failing to record consistent information in its inspections logs;
- failure to update its Best Management Practices Plan as per a Permit Attachment Special Condition;
- a violation of a Permit Attachment Special Condition by not updating its Fugitive Dust Control Plan to reflect the removal of the silos;
- a violation of a Permit General Condition by failing to maintain the required information on the website;
- 6 NYCRR 374-3.2 (d) (4) (i), by having openings in each of the two boxes of a Universal Waste (spent fluorescent lamps);
- 6 NYCRR 373-3.28 (g) (1), by not having port cap on a pump sampling port.


In Matter of Hageman Fire Department, Inc.
DEC File No. R4-2014-0718-130
Order on Consent, Aug. 25, 2014

The DEC determined that the Hagaman Volunteer Fire Department (F.D.) improperly authorized the open burning of debris at a privately owned site without a permit in violation of the open burning air pollution regulations at 6 NYCRR 215.2, 215.3.

The FD was assessed a civil penalty of $500 with $400 suspended based on a Schedule of Compliance which required that: the FD shall not recommend or authorize any open burning in violations of 6 NYCRR 215; and, it will mail a DEC approved notice to all FD residents advising about the state's open burn regulations.


DEC Administrative Enforcement Orders, Decisions and Rulings

In the Matter of 3840 Orloff Ave. Corp.,
DEC CASE NO. 2-602087BT
Commissioner's Order, Sept. 12, 2014

The Commissioner granted the Department's motion for a default judgment pursuant to 6 NYCRR 622.15, for failing to answer or appear. Respondent was then ordered to pay a civil penalty of $7500, for a violation of 6 NYCRR Part 612.2, for failing to re-register its petroleum storage facility. The registration certificate had expired in 2010.


Weird News

Tragic Rare Bear Attack Fatality in NJ

This sad story raises several questions about wildlife management and hunting policy in states that abut NY.


Drought Compels California Ground Water Use Laws

California is taking extreme steps to combat what is a record extreme drought (see next item).


Don't Cry for Me Argentina (Argentine Ants That Is)!

Extreme weather can impact native species, creating a window of opportunity for invasive species. The already difficult case of the "Argentine Ant" infestation has been exacerbated by the extreme drought in most of the Western states.


Cooking Oil Pirates Strike on L.I.

As previously reported, this new environmental crime is spreading due to the rising demand for recycled cooking oil as an alternative fuel. Recently, Suffolk is being targeted by cooking oil pirates. ARRRGGGggggggg!


_____________________________________________________________________________________________________________________

The NY Environmental Section Enforcement Update is a service presented by the Environmental Section of NYSBA which is based on a general survey of approximately twenty-five public government and media websites which report on news relevant to New York's environmental issues. It is by no means comprehensive and is presented for educational purposes only. Neither the author nor NYSBA makes any guarantees as to the accuracy of the sources cited. Please contact Sam Capasso, the Blog Administrator with any additional information or corrections.

Michael J. Lesser is currently Of Counsel to Sive, Paget & Riesel, P.C. in New York and was a former NYSDEC enforcement attorney in the Office of General Counsel.

November 23, 2014

NY Environmental Enforcement Update August 2014, Vol. 1, #20


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

Enforcement News

NY Law Combats Illegal Ivory Trade

Governor Cuomo signed a new law to combat the illegal ivory trade. The law bans the sale of elephant ivory and rhinoceros horns, with limited exceptions for certain antiques.


Litigators, FOILers Beware! State Deletes Emails After 90 Days

New York State has instituted a new and "aggressive" email retention policy that will have emails automatically deleted after 90 days, subject to over 200 exception categories. The system is to be administered individually by each state employee (emphasis added). Therefore, unless an employee proactively saves an email it will be deleted if the policy is properly followed. The deletion policy is even more aggressive for emails generated by the Governor's Office.


E-Waste Swamps Recyclers Despite NY Law

NY e-waste recyclers have been overwhelmed by the numbers of old TVs and computer monitors containing cathode ray tubes (CRT) that have been dumped into an unprepared marketplace despite a 2010 law meant to ease recycling.

Nationwide, a new toxic environmental phenomenon is emerging: abandoned e-waste dumps.


Adirondack Park Agency Issues 2013 Annual Report (Includes Enforcement)

Pages 13-14 provide the "APA" Report's legal and enforcement summaries for 2013.


DEC Extends PBS/CBS Proposed Regulations Comment Period

For the first time in almost two decades, DEC has proposed significant changes to update and consolidate Petroleum Bulk Storage (PBS) and Chemical Bulk Storage (CBS) regulations. The proposed changes would clarify existing requirements while broadening the reach of this extensive regulatory and enforcement scheme.


More on Roberto Clemente Park Illegal Dumping

The plot thickens as investigators probe how large quantities of hazardous substances were transported and dumped in an environmental justice neighborhood in Brentwood, L.I.


L.I. Garbage Train Update

As previously reported, a garbage transportation and storage crisis continues in Suffolk County as a shortage of first trucks and now even trains have created a solid waste storage issue in Brentwood in central L.I. This has led to charges of environmental racism by community leaders. Brentwood is an environmental justice community that has recently been beset with environmental problems (see, dumping item above).


Oil Continues to Raise Tensions in Port of Albany

Global Companies, an energy products company with terminals in the area, recently experienced an oil spill that, though fully contained, heightened tensions about oil transport in the area.

Additionally, Global Companies submitted a permit application to modify its Air Title V Facility permit to allow the company to heat petroleum products, including crude oil, residual fuel and biofuels at its facility at the Port of Albany. Due to broad public and community interest, the agency extended the Title V Air Permit comment period.


Ohio and Pennsylvania Crack Down on Oil/Natural Gas Drillers

Pennsylvania and Ohio authorities have recently brought a series of enforcement actions against oil and natural gas producers which may be instructive if horizontal hydraulic fracturing or "fracking" ever comes to NY:

- The Penn. DEP commenced administrative action for improperly monitoring wastewater containment pond leaks in Washington County in southwestern Pennsylvania.

- An Ohio federal judge sentenced a former owner of an oil and gas services contractor to 28 months in jail and a $25,000 fine for deliberately dumping fracking waste in violation of the federal Clean Water Act (CWA). The defendant had already pleaded guilty to one count of making an unpermitted discharge after ordering an employee to discharge toxic wastewater more than 30 times.


State and Local Enforcement

NYC Hit with 960K EBP for State Water Pollution Violations

The Attorney General and DEC entered an agreement with New York City for $960,000 in Environmental Benefit Projects ("EBP") to improve the water quality of the upper East River and Long Island Sound. The funding represents a partial resolution of penalties assessed for the failure to comply with a previously established schedule to upgrade nitrogen pollution controls at a wastewater treatment plant in Queens. The schedule was first included in a 2006 court settlement that required the City to upgrade nitrogen controls at eight of its 14 wastewater treatment plants.


Nassau Co. DA Gets Conviction for Releases to L.I. Sound

A Nassau County landowner pleaded guilty to one count of Endangering Public Health, Safety or the Environment in the 5th Degree, ECL Section 71-2710 (B Misdemeanor) and was sentenced to a conditional discharge with an agreement that he will finish the clean-up of his Glen Cove property under the supervision of DEC. He had released toxic automotive fluids into the ground of his salvage yard. State law requires that fluids like gasoline, motor oil, and transmission fluid be drained and property stored for disposal before disassembling vehicles. The property is located near waterways leading to L.I. Sound.


Aptly Named "Dirtman" Held Liable for Illegal Dumping

The Attorney General won a State Supreme Court ruling holding a landowner and his contractor liable for illegally operating a landfill and discharging pollution into the Croton Falls Reservoir. The contracting company was unfortunately, but prophetically, named "Dirtman."


In Case You Missed It! NJ Company Hit with 160K Bottle Bill Penalty!

Back in January 2014, the N.Y. Attorney General's office entered a significant settlement with a New Jersey-based company for repeatedly violating New York's Returnable Container Act a/k/a the Bottle Bill. An investigation by the AG and DEC revealed that the company collected deposits on beverage containers it sold in NEW YORK STATE but failed to remit 80% of the unclaimed deposit money as required. The company paid a penalty of just under $160,000.


White Water Rafting Enforcement

Among the more obscure areas of environmental enforcement is the state's regulation of white water raft guides and outfitters. Several recent safety violations and a fatality have raised the enforcement profile of this segment of the recreation industry.


Federal Enforcement

NYC Croton System Water Settlement Modified (EDNY)

Several federal and state agencies reached a settlement with New York City to modify a federal consent decree originally entered in November 1998 which required the City to construct a filtration plant for its Croton drinking water supply.

Previously, the City completed construction of a filtration plant and will commence operations no later than May 17, 2015. The consent decree provides for stipulated penalties of $65 million if the deadline is not met and also requires the City to monitor the Croton System and implement NYC watershed protection measures.


Buffalo Area Contractors Sentenced for Criminal CAA Violations (WDNY)

Several additional defendants were sentenced for asbestos related criminal violations of the Clean Air Act ("CAA") associated with the Kensington Towers Apartment Asbestos Abatement Project:

Earnest Johnson was sentenced to two years of probation for related CAA violations. Note: he was the president of the asbestos abatement company hired to conduct asbestos abatement activities at the Kensington Towers abatement project.

Rai Johnson was convicted of violating the Clean Air Act ("CAA") Asbestos Work Practice Standards, was sentenced to time served, 160 days, and two years of supervised release. The defendant was a supervisor at an asbestos abatement company hired to conduct asbestos abatement activities at six buildings at the Kensington Towers Apartment Complex in Buffalo. Each building contained approximately 63,000 square feet of regulated asbestos containing material. Defendant had created phony daily asbestos abatement logs.

Evan Harnden was convicted of a misdemeanor charge of being an accessory after the fact to a false statement under the Clean Air Act, was sentenced to one year probation. The defendant had been employed as a state certified air sampling technician and a project monitor. He certified the phony daily abatement log created by defendant Rai Johnson (see above).

Brian Scott was also convicted of a misdemeanor charge of being an accessory after the fact to a false statement under the Clean Air Act, and was sentenced to one year probation. Like defendant Harnden above, he certified phony daily asbestos abatement logs for the Kensington abatement project.


DuPont Settles CAA Violations in Tonawanda (WDNY)

Under a legal agreement reached with EPA, DuPont will increase compliance with the Clean Air Act, and the Emergency Planning and Community Right-to-Know Act ("EPCRA") at its Yerkes chemical manufacturing facility in Tonawanda, New York. DuPont will also test the smoke stack emissions and pay a civil penalty of $440,000. The company also installed equipment to reduce the emissions of hazardous air pollutants (HAPs) at the facility.


Another Rhino Horn Smuggler Indicted (SDNY)

A Canadian antiques dealer was indicted for conspiring to smuggle rhinoceros horn, elephant ivory and coral. This indictment is part of the ongoing federal crack-down against the illegal ivory trade known as "Operation Crash."

All species of rhinoceros are protected under U.S. and international law and trade in rhinoceros horn is regulated under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), a treaty signed by over 170 countries.


Yonkers Paint Co. Pays RCRA Fines for Leaky Drums (EPA, R2)

A Yonkers paint company has been penalized $90,000 for having approximately 100 corroded and leaking paint and solvent containers in violation of the Resource Conservation Recovery Act ("RCRA") among other federal hazardous waste law violations.

The violations came to light after a fire caused a release into the nearby Saw Mill River.


OSHA R2 - NYSDOL Report

Tonawanda Explosion Leads to OSHA Fine

OSHA assessed $161,100 in fines following a coke oven gas explosion in a Tonawanda facility that collapsed brick walls, damaged electrical equipment and injured several employees.


OSHA Fines Metal Company for Employee Chromium Exposure

Employees of a Fonda, N.Y. aluminum extruding plant were unsafely exposed to chromium, and other work place hazards. The company faces $53,000 in fines.


DEC Region 4 Administrative Orders

In the Matter of Pest Mall
Order on Consent
R4-2014-0616-124

Pest Mall is a Georgia mail order company which provides "Do it Yourself" pest control products to exterminators and consumers. In an internet sting operation, DEC staff placed an online order with Pest Mall for an unregistered pesticide (in New York). This, despite a warning on Pest Mall's website that the very same product was "Not For Sale to CT, NY." The delivery constituted a violation of ECL Sections 33-0701 and 33-1301(1)(a) for unlawful distribution and sale of an unregistered (in N.Y.) pesticide.

As per ECL Section 71-2901(1), Pest Mall was assessed a penalty of $2,000, of which $1,000, was payable and $1,000, suspended pending the completion and issuance of a "Standard Operating Procedure" to prevent the online sale of unregistered pesticide products to New York State customers.


Weird News

Solar Energy Plants Burn Birds

A truly sad phenomenon has emerged due to the expanding use of solar reflectors to generate steam and then electricity.


California Water Wasters Sent to Water School!

A California town is enforcing drought driven water shortage regulations by forcing violators to attend "Water School" to learn the error of their ways.


Poison Giant Hogweed Invades NY

DEC is continuing its fight against all invasives. This invasive and toxic plant can grow to between 8 to 14 feet tall and has sap that can burn like acid. Ouch!


Flesh Eating Bacteria Invade Florida Waters!

First sharks, then gators and now this. Beware!


The Red River ... of China - Not Texas!

It's true! Rivers can run red (at least polluted Chinese rivers can).


Kissing Bugs Invade US: But No Romance Results!

Yuck! Here is one bugger you don't want to invite over. Perhaps their other name, assassin bug, is more appropriate.


Sharknado 2

The ultimate environmental hazard returns to invade New York City via this Grade "Z" TV movie sequel. Root for the sharks.


Pollution Makes Male Bass Change Sex

I say no more.


_____________________________________________________________________________________________________________________

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.

September 27, 2014

NY Environmental Enforcement Update July 2014, Vol. 1, #19


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

The month's Update introduces a new feature: EPA Region 2 Administrative Settlements/News. In addition, the Environmental Law Section has published an E-Book entitled "NY Environmental Enforcement Update 2013 Annual Report" which is a compilation of the monthly 2013 Updates and can be found on the ELS website (click on title in the left margin menu) at http://www.nysba.org/Environmental/ or directly downloaded as well.


Enforcement News

GE Settles Hudson River Liability

General Electric Co. (GE) will pay $7.95 million to settle part of a federal lawsuit filed in 2009 by several Saratoga County municipalities that shut down or switched water suppliers when GE began dredging PCBs from the Hudson River. This river dredging is part of the federally mandated $1 billion Hudson River NPL Site dredging project (an element of GE's CERCLA settlement with EPA).


Corning Enters Consent Order for Historic Contamination Study

Corning Incorporated entered an Order with DEC to perform an environmental study on local properties including a school. Elevated levels of lead and other contaminants were discovered during a soil excavation undertaken as part of the Corning-Painted Post East High School expansion project. Ash, glass and brick with hazardous levels of lead and cadmium were also detected.


Seasonal Shut Down of Indian Point Nuke Plant Proposed to Save Fish

DEC made this controversial proposal as part of the operator's SPDES (water discharge) permit applications to prevent harm to Hudson River fish populations. The shutdowns would occur during the state's peak power summer usage periods.


Diesel Truck Inspections in Albany EJ Area

DEC Conservation Police conducted a diesel truck pollution prevention detail in South Albany as part of Operation ECO-Quality. This Operation has helped environmental justice (EJ) communities evaluate and address environmental conditions via vehicle checkpoints and roving patrols to inspect diesel trucks for compliance with clean air standards and other relevant laws. DEC also inspects small and mid-sized regulated air emission sources in low-income and minority communities as part of the program.


LI Garbage Truck Shortage Means Garbage Trains?

DEC issued an unusual 30 day "Emergency Authorization" permitting the temporary establishment of a rail trans-loading operation at an industrial site in Brentwood, Suffolk County. This would alleviate a backlog of solid waste on eastern Long Island. The emergency allows for the loading of wrapped bales of solid waste into rail cars with sealed lids to facilitate the removal of the stockpiled solid wastes.


DEC Pesticide Policy Takes Effect

As previously announced in June DEC released the Long Island Pollution Prevention Strategy (Strategy), the plan for a new pesticide pollution prevention approach on Long Island. The overall goal of the Strategy is to protect water quality from pesticide-related impacts while continuing effective pest management on Long Island.


DEC Cracks Down on Illegal Hudson River Fishing

During April-May, DEC Officers stopped more than 400 fishermen and ticketed about 60, as part of "Operation River Run," an effort to protect the spring migrations of fish species in the Hudson River watershed, including eels. The illegal taking of young eels has increased substantially due to the large demand of the Asian food market.


DEC Workers Spied on by Management

DEC staff has filed a union grievance challenging the state's use of surveillance cameras to enforce work place time rules.


DEC Warns about Phosphorus Limits

DEC has made several press releases reminding the public that new limits and restrictions are in place related to phosphorus limits. DEC reminds all that the recent detergent and fertilizer runoff prevention law is in effect. Recall also that the related dishwater runoff restrictions are in effect as well.


Bug Infested Firewood Seized/Destroyed

The DEC and the NYS Department of Agriculture and Markets (DAM) confiscated and destroyed infested firewood and ash logs located at an Ulster County firewood dealer. The goal is to prevent an additional infestation of the emerald ash borer (EAB), an invasive Asian species that kills trees. This continues the state's war against this environmental and economic threat.


Legislative Update

Geologists May Now Certify Remediation Projects

A proposed law that would provide for the professional licensing of geologists has passed both houses of the legislature and awaits action by the Governor (See, Bill Nos. A 4753D / S 3810D, http://public.leginfo.state.ny.us/menugetf.cgi, enter Bill No. for text/status). Currently, only NY "Professional Engineers" are licensed to certify most environmental remediation projects performed under DEC supervision.


People in the News

DEC Gets New Assistant Commissioner of Administration

Jeffrey Stefanko has been appointed as the new Assistant Commissioner of Administration for the DEC. His duties will include directing all staff and programs within the Office of Administration, which includes the Divisions of Management and Budget Services and Operations.


DEC Lieutenant Receives EPA Bronze Medal

DEC Lieutenant David Clarke received the US Environmental Protection Agency's (EPA) Bronze Medal for outstanding work related to the illegal dumping of 8,100 tons of construction and demolition debris. That material was dumped on a property in Frankfort, N.Y.


ECO Sean Reilly is "Officer of the Year"

DEC Environmental Conservation Officer (ECO) Sean Reilly received the 2013 "Officer of the Year" award from the Northeast Conservation Law Enforcement Chiefs Association (NECLECA).


DEC Oil Attorney Goes to Worker's Compensation

DEC Attorney Scott Caruso (f/k/a Scott Owens) is leaving the agency for a position as staff attorney with the NYS Worker's Compensation Board. Scott spent much of his legal career addressing petroleum spill and petroleum bulk storage enforcement and regulation. His expertise will be missed (source: telephone call with Scott Caruso).

State and Local Enforcement

Upstate Waste Carting Company Settles AG Antitrust Charges

The NY Attorney General's office entered into a settlement with a waste hauler resolving restrictive contracting practices and unlawful restraint of competition. The settlement agreement also requires more open business practices in order to rejuvenate competition in the industry.


Federal Enforcement

Under Reported Fluke Convictions is No Fluke (EDNY)

A federally-licensed Long Island fish dealer and its employees pleaded guilty today in federal court to federal felonies stemming from their role in systematically under reporting fluke (summer flounder) harvested as part of the federal Research Set-Aside (RSA) Program. The crimes included falsification of records and Lacey Act false labeling. The defendants will be subject to between $222,000 and $276,000 in combined fines, restitution and community service.


Onondaga Lake NPL Clean Up Continues

EPA proposed a PCB cleanup plan for Lower Ley Creek portion of the Onondaga Lake NPL Site located in the Town of Salina.


Responsible Parties Continue Mercury Clean Up

The Second Phase of cleanup work is to start at the Mercury Refining NPL Site located in the Towns of Colonie and Guilderland near Albany. The cleanup of the Site is being conducted by responsible parties with oversight by the EPA at an estimated cost of $9.3 million.


PR Junkyard Must Control Waste Liquids

EPA Region 2 reached a legal settlement with an auto junk yard in Puerto Rico for alleged violations of federal hazardous waste law. Respondent will make site improvements to control runoff and invest $133,000 to install equipment that will clean, remove and store of hazardous liquids generated by scraped vehicles. It will also pay a $29,000 penalty.


IBM Settles Up for Clean Up

The District Court of the Southern District approved a legal settlement agreement between EPA and International Business Machines Corp. (IBM). IBM will cleanup and reimburse EPA for past costs at the Shenandoah Road Groundwater Contamination NPL Site in East Fishkill. IBM previously used the site for an industrial cleaning operation that allowed waste chemicals to be released into a septic tank and pit.


Cleaning Co. Hit with $375k Pesticide Penalty

EPA Region 2 reached a settlement with Air Techniques, Inc. of Melville, resolving federal pesticide violations. Respondent is a wholesale cleaner and used a surface disinfectant to clean instruments, equipment and surfaces in dental offices and medical facilities, sold unregistered pesticides and imported pesticides into the U.S. without proper notification. The company will pay a $375,000 penalty.


DEC Region 4 Administrative Orders

DEC Region 4, is currently the only DEC Regional office that regularly posts all administrative enforcement consent orders and settlements. While limited in scope, this data can be a useful window into the agency's enforcement policies statewide.


In the Matter of Terri Gargano d/b/a Scott's Lawn Service
Order on Consent
DEC No. R4-2014-0506-112

Respondent violated ECL §33-1301.8-a by engaging in the commercial application of pesticides without being registered with the Department. A civil penalty of $1,000.00 was assessed in accordance with ECL § 71-2901(1).


DEC Administrative Enforcement Orders, Decisions and Rulings

In the Matter of Florence Edelstein,
Commissioner's Order
DEC File No R2-20130513-183

Respondent guaranteed an adverse holding by failing to respond or file an answer to a DEC enforcement action involving petroleum bulk storage violations at 25 NYC residential properties. Most conspicuous was the failure to accurately register each facility, in violation of 6 NYCRR 612.2, which resulted in a combined assessed penalty of $113,500.

However, most interesting was the Commissioner's modification of the ALJ's hearing report to hold:
1. That where a discrepancy exists in total violations between the staff's initial Notice of Violation (NOV) and the following motion papers, the motion papers govern; and
2. That the period of penalty calculation (per day) runs from the last date of staff's inspections (of the 25 properties) to the filing date of the complaint (not through the course of the proceeding). The Commissioner did note that this calculation period is "conservative."

In the Matter of Green Thumb Lawn Care, Inc.,
Commissioner's Order, 7/10/14
DEC File No. CO7-20060824-1

This matter involves an Article 33 enforcement case that fizzled down to a quibble over penalty calculations after more than ten years of administrative and civil litigation. What remains however is an interesting dissertation on the right (or lack thereof) of the DEC to recover attorney fees in an administrative enforcement hearing. Specifically, the Commissioner held that "Absent statutory or other legal authority, or a written agreement, that specifically authorizes the recovery of attorneys' fees - and staff has not cited any such legal authority or agreement - such fees are not recoverable." It should be noted that general cost recovery authorities do exist elsewhere in the ECL. But, the pesticide enforcement provisions at ECL § 71-2907, do not specifically provide for attorney fee recovery.


Weird News

How Many I.C.E Agents Does it Take to Seize a Land Rover? Answer Below!

A Guilderland, NY man was surprised when ten (count em! ten!) Immigration and Customs Enforcement (ICE) Special Agents of the Office of Homeland Security seized his used British-made Land Rover light truck. Allegedly, the vehicle had been unlawfully imported by a previous owner and did not meet U.S. emissions and safety standards. But does it take ten agents to fetch one light truck?


Giant African Land Snails Arrive in SoCal by Air (You Have Been Warned! Again!)

As noted in prior issues of the Update, this truly gross invasive species is spreading. But, now we also learn that it is an eatable West African delicacy. Bon appetite!


Pythons Continue Stranglehold on Florida Ecosystem

This destructive and dangerous invasive species continues to make itself at home in parts of Florida. Solutions are few.

September 1, 2014

Fracking Supporters See Continued Judicial Obstacles


By Teresa Bakner

Pro horizontal hydraulic fracturing ("fracking") supporters suffered a setback due to two related decisions recently issued in Albany Supreme Court in July 2014:

Wallach v. the New York State Dept. of Environmental Conservation, 2014 WL 3772699 (N.Y.Sup.) (Trial Order) Albany County, July 11, 2014


Joint Landowners Coalition of New York, Inc. v. Cuomo, 2014 WL 3772700 (N.Y.Sup.) (Trial Order) Albany County, July 11, 2014

Petitioners had sought to compel various state officials to finalize a Supplemental Generic Environmental Impact Statement ("SGEIS") relative to the use of fracking to extract natural gas. The process to finalize the document has been perpetually delayed without any public schedule for completion. All causes of action were dismissed mainly due to the lack of standing by those who originally commenced the two actions.

August 10, 2014

NY Environmental Enforcement Update June 2014, #18


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

Enforcement News

EPA Fines US Department of Energy for Nuke Releases

The DOE paid a $155,000 fine for twice allowing radiation to escape into the air during the cleanup of 1950s-era radioactive waste at Knolls Atomic Power Labs. DOE admitted to eight separate CAA violations of National Emissions Standards for Hazardous Air Pollutants (NESHAPs) involving the release of various radioactive pollutants formerly generated by the Niskayuna (near Schenectady) facility.


San Juan, PR Faces Huge Fines for Sewage Releases

According to the San Juan Star, the EPA commenced an action against the City for alleged sewage releases into local waterways in violation of the Clean Water Act (CWA). EPA Region 2, which has jurisdiction over Puerto Rico as well as New York, seeks penalties retroactive to 2013, as the City allegedly ignored prior warnings about these releases. In general, a glance at the stories in the Star indicates that Puerto Rico is in extremely dire economic, as well as environmental, straits.


EPA Proposes Plans to Cut Power Plant Carbon Emissions

Not without controversy, EPA proposed guidelines to cut carbon emissions from existing power plants. However, current data indicates that NY will be among the least impacted states because less than 10% of its power generation relies on coal as a carbon emitting fuel.


NY Waterways 15th Worst in Nation! Room for Improvement?

The Environment New York Research & Policy Center finds that industrial dischargers released 5,303,190 lbs. of toxic chemicals into New York's waterways in 2012. This gives the state's waterways the dubious distinction of being the 15th worst in the nation, according to the report entitled "Wasting Our Waterways."


DEC Issues Bogus "Clean Fill" Alert!

The re-emergence of scammers offering so-called "clean" (but really contaminated) fill for construction projects has compelled DEC Region 1 to issue an unusual warning to the public. Counsel with clients on Long Island (and elsewhere) should take heed.


NY Cracks Down of Illegal Ivory Trade

State leaders reached an agreement on a new law to fight the state's illegal ivory and rhinoceros horn trade by imposing tougher penalties and increased limitations on purchases and sales. The enforcement effort against the illegal ivory trade is a priority for both state and federal law enforcement agencies.


DEC Issues Norlite Draft Permit, Public Comment Sought

The DEC announced the start of a public comment period for a draft hazardous waste permit and cleanup proposal for the Norlite, LLC corporation in Cohoes, Albany County. Without much fanfare, DEC continues enforcement and remediation as part of the 6 NYCRR Parts 373,374 permit renewal process for hazardous waste transfer storage and disposal facilities (TSDF).


Invasive Species Compel New Boat Cleaning Enforcement

The DEC issued new regulations that require boaters to remove all visible plant and animal materials from boats, trailers and associated equipment, and to drain boats prior to launching from DEC lands. This regulation is expected to reduce the rate at which invasive species are introduced to state lands.


NYC Issues 2013 Hazardous Materials Annual Report

The New York City "Community Right-to-Know Laws," (Local Laws 26 and 92), Report features the results of approximately 8,900 NYCDEP inspections of facilities that store hazardous materials within the City.


Pesticide Releases Remain DEC Priority on Long Island

The DEC issued "The Long Island Pesticide Pollution Prevention Strategy" highlighting the continued issue of pesticide releases in Long Island. The final report and executive summary provide a regulatory plan for the protection of both surface waterways and the region's sole source aquifer and drinking water resources.


How Far Can a Site "Look Back" Look Back?

Despite being on the state Registry of Inactive Hazardous Waste Sites as a Class 2 (significant threat) site for 31 years, DEC is back at the former Al Tech Specialty Steel property for more environmental investigation. The 68 acre site is near a tributary of the Hudson River in Colonie, Albany County. To liberally paraphrase an old saw, old hazardous waste sites never die, they simply ... fade into another site investigation.


2014 NYS Legislative Update

The less than scintillating end of the 2014 legislative session left a number of Bills passed by the Legislature awaiting signature by the Governor at press time including:

S7878/A10135 - Brownfields Cleanup Program tax eligibility extension and 100 million dollars appropriated to the state superfund;

S6617-B/A6558 - The Community Risk and Resiliency Act would require consideration of the effects of climate change and extreme weather events before issuing state permits and allocating infrastructure funds.

Despite public outcry and sponsors in both houses, Bill No. S7718/A9926, amending the Environmental Conservation Law to compel financial assurance by oil train facilities for spill and accident costs ultimately languished at the end of session. The status and text of all session laws can be found online at the Legislature's law site.


Enforcement People in the News

DEC Water Engineer Recognized

The Department commended water engineer Larry Lepak of the Kirkwood office for being awarded the Public Service Excellence Award by the NYS Academy for Public Administration for outstanding performance by a public servant.


NYCDEP Promotes Two Environmental Policemen

The New York City Department of Environmental Protection promoted Justin Kight to the rank of Captain and environmental police officer Justin Romer to detective specialist. Since 2002, DEP has doubled the size of its Police Division to its current 200 sworn members.


State and Local Enforcement

Roberto Clemente Park Update, More Toxic Sites Discovered (Suffolk Co.)

The Suffolk County District Attorney continues to investigate what has become a multiple contaminated site situation that started with the discovery of 50,000 tons of including asbestos, heavy metals and pesticides that had been used as fill material at this public park. Sampling results confirmed the disposals. The sites are in or near environmental justice communities.


Suffolk Co. Homes Built on Contaminated Fill!

The Suffolk County District Attorney's office continues to investigate the origins of illegally released contaminated soils in an Islandia cul-de-sac. The location was used for the construction of affordable housing for returning veterans. This investigation is an outgrowth of the Roberto Clemente Park toxic fill investigation (see above item).


DEC "spears" Illegal Spear fishermen

A commercial boating captain and his crew pleaded guilty to illegal spearfishing in waters off Valiant Rock in Block Island Sound. The Captain will pay a $15,000 fine and must participate in community service programs.


DEC Seizes Exotic Animals

DEC seized 20 animals from an allegedly unauthorized sanctuary, located in Sinclairville, (Western) New York as part of a joint effort with the United States Department of Agriculture's Animal and Plant Health Inspection Service (USDA) and the International Fund for Animal Welfare (IFAW). The animals included 12 tigers, 3 lions, 3 bears and 2 wolves, which were placed with licensed facilities pending further investigation and possible prosecution.


Federal Enforcement

EPA Illuminates Buffalo's Bad Bulb Management

Under an Agreement with EPA, The City of Buffalo will host nine community recycling events to collect fluorescent light bulbs, electronic waste, and household hazardous waste from city residents. The City will also pay a $21,094 penalty and spend at least $79,000 on the recycling events. The underlying hazardous waste violations involved the unlawful handling and disposal of various waste chemicals and waste fluorescent bulbs which are classified as such due to the mercury content of the bulbs.


U.S. v. Gordon (EDNY)

Defendant was sentenced to 30 months imprisonment and 2 years of supervised release, for smuggling elephant ivory into the United States in violation of the Lacey Act and related laws. He will also pay a fine of $7,500 and forfeit $150,000, and approximately one ton of elephant ivory seized by agents from defendant's Philadelphia store.


U.S. v. Hawkins (WDNY)

A Buffalo, N.Y. man was convicted of a misdemeanor for being an accessory after the fact to a false statement in violation of the Clean Air Act (CAA). He was sentenced to one year probation. The defendant had been employed as an air sampling technician and a project monitor. During an asbestos abatement process, he and his co-defendants created false project logs to document the progress at the Kensington Towers abatement project. Accurate work logs are required to be maintained under the CAA.


U.S. v. Smith (WDNY)

The owner of a Pennsylvania company pleaded guilty to violating the federal Clean Water Act (CWA). The charge carries a maximum penalty of one year in prison, a fine of $25,000 per day of violation, or both. The defendant released demolition debris into a local river during the demolition of condemned buildings on either side of the river.


U.S. v. Li (District Court of N.J.)

The owner of a Chinese antique business was sentenced to serve 70 months in prison for heading an illegal ivory smuggling conspiracy in which rhino horn and elephant ivory objects worth more than $4.5 million were smuggled from the United States to China. This prosecution is part of the long running "Operation Crash" which has previously led to additional federal convictions under the Lacey Act and other federal laws.


DEC Region 4 Administrative Orders

In the Matter of Selkirk Cogen Partners
Order of Consent
File No. R4-2014-0522-1 20

Respondents were assessed a civil penalty of $7,000.00, for a violation of an air permit condition as per 6 NYCRR 201-6.5(a)(2) by exceeding the NOx (nitric oxide) hourly and pounds per hour limits for a single air emission source. Respondents own and operate a co-generation power facility in Selkirk, New York.


In the Matter of Ruby Lake Glass, LLC
Order of Consent 6/16/14
File No. R4-2014-0507-113

Respondent was assessed a civil penalty of $1,160, for violations of 6 NYCRR 201-1.2 (a) for operating an air pollution control device without a permit; and for the reintroduction of collected air contaminants from the control device to the atmosphere. Respondent uses a cyclone device to collect, recycle and salvage fine particulate glass. This collected glass particulate then goes into a collection bag at the bottom of the cyclone.


In the Matter of the Town of Colonie
Order of Consent
R4-2014-0402-100

The Town was penalized for exceeding leachate release parameters at the Town landfill in violation of its 6 NYCRR Part 360 solid waste permit. The Town was assessed a civil penalty in the amount of $26,000, with $6,000 of the civil penalty due upon entry of the Order and the balance suspended, and payable for the failure to comply with Order's "Schedule of Compliance." The compliance schedule focuses on leachate control and management.


Weird News

Harley Davidson Goes Electric!

America's famous motorcycle brand goes green with an electric prototype. The image of the "Easy Rider" does not come to mind.


Birds Attack Blondes in British Park!
Was Hitchcock's movie ("The Birds") based on fact?


Former Reality TV Star Attempts Extortion for Negligence at Nuke Facility

A Tennessee man was charged with extortion for threatening to publicize alleged negligent practices at a federal nuclear materials facility. Now that should be a reality TV show.


Even More Smart Car Tipping in San Francisco!

As reported in the April Update, somebody in the City by the Bay has a problem with the tiny eco-friendly "smart cars."


Goats Go Get Invasive Species!

DEC has called out a brigade of ten goats to munch away at the invasive plant species that have populated the Oak Brush Plains State Preserve at Edgewood in Suffolk County. Locals will remember this property as the former Edgewood State Hospital. BAAaaaaah!


Florida News? Am I in the Right Place?

Relax! Recently, I visited Southwest Florida where I spoke with representatives of the Florida Department of Environmental Protection and local public interest groups. The impact of man-made nutrient discharges into the Myakka and Peace River basins is a high priority issue among the locals. Florida's environmental agencies are organized differently from New York's. But the following should help if the environment of Southwest Florida of interest:

Florida State Government
Florida Department of Health
Florida Department of Environmental Protection (includes state parks)
Florida Fish and Wildlife Conservation Commission
Southwest Florida Water Management District
Florida Water Management Districts (in general)
Charlotte Harbor National Estuary Program

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