By Michael J. Lesser, Environmental Law Section, NYSBA © 2015
DEC Hits Hospitals with Hazardous Waste Violations
Two Troy, NY hospitals were penalized almost $35,000 for numerous hazardous waste violations, including improper handling of chemo-therapy wastes and the failure to maintain required records. (See also the Region 4, summaries below).
Albany Toxic Toy Ban Stayed
A federal judge has granted a stay to temporarily halt the implementation of a recent local law banning toxic toys. This case may provide a test case for similar local laws proposed around the state.
Court of Appeals Upholds Municipal SPDES Permits
New York's highest court upheld a state water pollution permit program that allows municipalities with populations under 100,000, to discharge storm-water runoff with less stringent public comment procedures. The decision rejects a challenge from environmental groups who claimed that the public was denied an opportunity to comment on this category of permits. They also claimed that the program reduces incentives to limit pollution. Specifically, the court held that the State Pollutant Discharge Elimination System ("SPDES") permit issued via the program complied with the federal Clean Water Act ("CWA") or state law.
Fracking -- the Drama Continues
DEC finally released the Final Supplemental Generic Environmental Impact Statement (FSGEIS) for high-volume hydraulic fracturing, commonly called "Fracking." The study identifies what the state describes as the "continued major uncertainties about potential significant adverse health and environmental impacts associated with the activity." DEC will next issue a formal and required Findings Statement, in accordance with the State's Environmental Quality Review Act ("SEQRA").
DEC also issued a separate rebuttal to a EPA report that suggested that fracking is not a significant threat to drinking water.
PCB Dredging on Hudson Waterways Considered by EPA
As previously described in the Update, various stakeholders are trying to induce General Electric to extend Hudson River PCB dredging to nearby connected waterways. GE says it is not obligated under its federal consent decree. Stay tuned!
Huge Sewage Spill Goes Unreported
Despite a state reporting law in place, the City of Amsterdam failed to report an estimated 24 million gallon sewage spill into the Mohawk River from its aging and decaying treatment system ("POTW") that occurred in 2013.
State and local authorities are uncertain about the potential health impacts on down river municipalities that draw drinking water from the river.
This author's article describing the Sewage Pollution Right to Know Act will provide additional insights into this topic. Currently there are approximately 650 POTW operating in NY.
Proposed Casino's Hazardous Past Unearthed!
The Casino to be built in Schenectady, NY has an interesting and confusing hazardous waste release history that needs to be deciphered before the project can proceed.
State Ends 90 Day Email Destruction Policy
In the face of bitter opposition, Governor Cuomo ended the automatic deletion of state emails over 90 days old, including environmentally related emails. A new email retention policy is in place.
New State Water Standards Proposed
DEC has issued a hearing report regarding new proposed water quality standards in 6 NYCRR Parts 701 and 703. The new standards will support the "swimmable water" goals of the federal Clean Water Act ("CWA").
Beware Social Media Postings!
If there is any doubt that social media is part of the enforcement landscape, then review this recent DEC Region 4, consent order settlement before hearing. While the case is relatively minor, it demonstrates that the regulatory community should use care before posting news on the internet (See also Region 4, Orders below).
Can EPA Boss Around DEC?
This is the question raised with New York's pending permit decision regarding crude oil heating plant at the Port of Albany. The short answer: Yes, they can under certain circumstances. When federal regulatory programs are delegated to a state pursuant to federal law - such as the Clean Air Act - EPA retains significant oversight and overfilling authority over the state and more importantly, discretion on when to exercise these powers.
NY AG Strongly Supports New EPA CWA rule
New York Attorney General Eric T. Schneiderman joined other AGs in the Northeast in favoring the final "Clean Water Rule" enacted by the EPA and U.S. Army Corps of Engineers (ACOE).
Birds Banned at Statewide Fairs!
NY has joined other states in taking extreme measures to combat a growing national outbreak of a little understood but deadly avian flu that has threatened poultry nationwide.
Finally, Remediation for the Grumman Bethpage Plume
An Order entered into by DEC and Northrop Grumman will be obligate Grumman to participate in the cleanup of groundwater originating at the site. The company will also cooperate with the U.S. Navy on a remedial design and remedial action work plan the Navy submitted to DEC to remediate contaminant "hot spots" recently identified in a large groundwater plume.
Chinese Laminates Anyone?
Lumber Liquidators Inc. will suspend its sales of laminate flooring from China. Prosecutors and consumers have alleged these contain toxic levels of the building chemical formaldehyde. It will also review suppliers who had labeled the product as meeting California's limits for the carcinogenic chemical. The company has over 20 stores in NY.
Beech-Nut, Asbestos and Worse
Here is another cautionary tale on how NOT to address the demolition and reuse of a contaminated former manufacturing facility. Asbestos abatement woes will likely haunt this Canojaharie site for years to come. In a stunning lack of vision, Beechnut received "tens of millions" in government incentives to relocate their factory in 2010, but not a penny for environmental investigation or cleanup. They later sold the property to the current owner.
Another Rhino Attacked!
Sadly, savage ivory poachers continue to find and attack the dwindling numbers of African Rhinos.
E. Cig. Ban Law Proposed
A growing number of NYS legislators support legislation to ban electronic cigarettes ("E-Cigarettes") from public places. Several NY municipalities have already enacted local bans.
Border Bug Quarantine in Place
The U.S. Department of Agriculture ("USDA") has declared the NY-Vermont border as the edge of a quarantine zone to prevent the movement of an insect known as the Emerald Ash Borer into Vermont. This invasive species from Asia can seriously damage hard wood trees such as the ash.
Beware! Nematodes Threaten Your French Fries
I bet you did not know that NY is the home of the Federal Nematode Quarantine Facility on Cornell's Ithaca campus, a facility that tests for nematodes (tiny roundworms) that attack potato roots.
Port Crude Heater on Hold
DEC has determined that it will reverse its previous decision to rescind the Negative Declaration issued in connection with the pending Title V Permit Modification Application at the Port of Albany facility. The Permit Modification Application has not been denied but the DEC has requested additional information in connection with the submission.
DEC Crude Oil Spill Response Plan
NY announced a new emergency plan and other measures to address crude oil train spills and accidents. Critics of crude oil trains are pleased.
New Oil Train Rules Still Too Lax
Crude oil train critics were unhappy about the new rules unveiled by federal authorities. Now, the public interest group Riverkeeper is challenging new U.S. Department of Transportation (USDOT) crude-by-rail standards in federal court for the failure to protect the public and the environment from crude oil trains.
Critics Spout-off over Port Oil Spill
A contained oil spill of approximately 420 gallons at the Port of Albany provoked a severe reaction from opponents of crude oil trains despite there being little or no environmental damage.
Oil Train Safety and Congress
http://www.timesunion.com/tuplus-opinion/article/Congress-must-ensure-safe-rail-transport-of-crude-6241381.php for Congress to take direct action in regulating crude oil trains. Such regulations include raising the standards for oil train insurance.
Fire, Oil Spill at Indian Point Nuke Plant
Non-nuclear environmental incidents have given plant foes additional ammunition in their fight to close the Westchester, NY power plant. This includes NY Governor Cuomo who visited the plant to inspect the situation.
Entergy Michigan Violations
Entergy, which operates the Indian Point nuclear plant in Westchester, incurred radiation exposure monitoring violations at its Michigan nuke facility.
People in the News
New Director for Sierra Club
Capital Region environmentalist Aaron Mair is the new president of the national board of directors of the Sierra Club.
State & Local Enforcement
Walmart Settles Fertilizer Violations with AG
The settlement agreement requires Walmart to comply fully with the state's Nutrient Runoff Law and pay $98,000 in penalties to New York State for the alleged violations. The company will also halt sales of phosphorus-containing fertilizers intended for use on lawn or non-agricultural turf in NY stores and via the internet.
DEC Steps Up Aquatic Invasive Species Enforcement
The DEC Environmental Conservation Police conducted recreational boat inspections in the Adirondacks to raise awareness of new 2014 state regulations to prevent the spread of aquatic invasive species. Boaters now must remove all visible plant and animal materials from boats and trailers. They also must drain boats before and after using waterways bordering state lands supervised by DEC.
Westchester Co. Slammed for $1.1 Million for Drinking Water Violations
Westchester County entered into a consent decree with the United States and EPA Region II, to resolve a civil lawsuit alleging that the County had improperly operated a unit of its water treatment system in violation of the Safe Drinking Water Act (SDWA). Specifically, the system failed to remove cryptosporidium, a parasite that can cause severe gastrointestinal illness. The value of the settlement includes substantial upgrades to the water treatment system.
Asbestos Monitor Pleads Guilty (NDNY)
A company pleaded guilty to a one misdemeanor count under the Clean Air Act (CAA) for negligently releasing asbestos (a hazardous air pollutant or HAP) and placing persons in imminent danger of death or serious bodily injury. The company had conducted air monitoring and sampling for asbestos abatement and removal projects.
RCRA Conviction in Owego (NDNY)
An Owego, New York resident pleaded guilty to one felony count of treating, storing, and disposing of hazardous waste without a permit, in violation of the Resource Conservation and Recovery Act (RCRA). Defendant operates a company that installs and removes old industrial plating equipment for re-use or recycling.
Tonawanda Coke Update (WDNY)
Under a $12 million settlement with the United States and the State of New York, Tonawanda Coke Corporation will pay $2.75 million in civil penalties, spend approximately $7.9 million to reduce air pollution and enhance air and water quality, and spend an additional $1.3 million for environmental projects in the area of Tonawanda, New York. Tonawanda Coke will pay another $1 million to fund supplemental environmental projects (SEPS) that will benefit the environment and the residents of Tonawanda. Additionally, $357,000 will be provided to a not for profit organization, to acquire and preserve wetlands.
Puerto Rico Contractor Settles Stormwater Violations
EPA Region II and a contractor entered an agreement that requires it to pay a $500,000 penalty, establish new staffing positions as well as training programs to ensure future stormwater runoff compliance with the Clean Water Act (CWA).
OSHA & NYSDOL
NYS Pushes Protections for Nail Salon Workers
Governor Cuomo and the NYSDOL proposed aggressive proactive labor legislation to control the state's growing nail salon industry. In addition to wage and workplace abuses, the state also alleges that workers are subject to toxic exposure due to the lack of ventilation or protective gear. Many in the industry are recent immigrants that have been historically exploited.
Region 4 Administrative Orders
In the Matter of Mike Kerwin
Order on Consent
DEC File No. R4-2014-1119-170
Respondent was assessed a civil penalty of $8,000, with $5,000, suspended for mining bluestone without a permit in the Town of Unadilla in Otsego County in violation of ECL 23-2711(1). Note: that law does allow limited exceptions for mining.
In the Matter of Seton Health System
Order on Consent
DEC File No. R4-2014-0917-152
Respondent - a Troy, NY hospital - was assessed a civil penalty of $20,000, with $3,000, suspended for over twenty violations of hazardous waste handling, storage, labelling and record keeping requirements pursuant to various regulations found in 6 NYCRR Parts 372 and 373. The violations were discovered upon a facility inspection and suggest that the hospital's staff was not familiar with federal RCRA or state hazardous waste standards. DEC enforcement against hospitals for this category of regulations is relatively rare.
In the Matter of Samaritan Hospital of Troy
Order on Consent
DEC File No. R4-2014-0918-154
Respondent, another Troy, NY hospital was assessed a civil penalty of $18,100, with $15,385, payable for over numerous violations of hazardous waste handling, storage, labeling and record keeping requirements pursuant to various regulations found in 6 NYCRR Parts 372 and 374. Many of the violations were related to the accumulation of waste light bulbs. DEC enforcement against hospitals for this category of regulations is relatively rare.
In the Matter of Bailiwick Animal Park
Order on Consent
DEC File No. R4-2015-0127-5
In a most unusual case, the Respondent, a Catskill, NY zoo operator, was found to be in violation of the state fish and wildlife law based on internet Facebook postings made by the zoo for promotional purposes. Specifically, Respondent was penalized for $4,000, with $2,000, suspended for depicting via Facebook unlicensed animals at the zoo and endangered or dangerous animals in contact with the public. This conduct resulted in multiple violations of license conditions and various provisions of ECL 11-0512.
DEC Administrative Enforcement Orders, Decisions and Rulings
In the Matter of Empire Construction and Real Estate LLC and Charles Celi
ALJ Ruling, May 27, 2015
Here, the DEC staff's Motion for a Default Judgment was denied due to jurisdictional defects in the service of the original Notice of Hearing and complaint. In a lengthy review of the relevant precedents, the ALJ notes staff's error in attempting service by first class mail pursuant to CPLR 312-a, on Respondent's attorney rather Respondent. Subsequently, the correct service of the Motion for Default Judgment did not cure the underlying jurisdictional defect.
The Fight for Ape Rights Continues!
A NY Court incrementally advanced the legal rights of great apes to fight their "detention" by a NY state university. Previous Update posts have followed the international legal fight to establish human civil rights for captive great apes (chimps, gorillas, etc.).
Cal. Water Theft Rampant!
As the extraordinary and dangerous California drought persists, water theft has risen accordingly.
Flammable methane hydrate ice crystals - frozen natural gas - may be found in deep Artic waters and could be the next major source of fuel.
Wooly Mammoth Tusks, a Real Pain!
Newly unearthed (but somehow legal) prehistoric mammoth tusks have entered the Asian ivory market due to thawing Siberian tundra. But, there is virtually no discernable difference between the ivory from mammoths and that of endangered elephants. Thus illegal ivory traders can now mislabel ivory products to bamboozle world law enforcement agencies.
Alaskans Driven Bed-Buggy
EPA has established a 100k grant to fight bed bugs in Alaskan villages. The effort will focus on "breaking down barriers to effective bed bug management." What else?
The Poop Fairy of Aspen?
In an effort to admonish and educate the dog walkers on Aspen's Smuggler Mountain, authorities have advised that the "Poop Fairy" will not magically appear to remove their pet's business. Posted signs depicting said Poop Fairy attest to this awareness campaign.
The NY Environmental Section Enforcement Update is a service presented by the Environmental Section of NYSBA which is based on a general survey of approximately twenty-five public government and media websites which report on news relevant to New York's environmental issues. It is by no means comprehensive and is presented for educational purposes only. Neither the author nor NYSBA makes any guarantees as to the accuracy of the sources cited. Please contact Sam Capasso, the Blog Administrator with any additional information or corrections.
Michael J. Lesser is currently Of Counsel to Sive, Paget & Riesel, P.C. in New York and was a former NYSDEC enforcement attorney in the Office of General Counsel.