April 14, 2014

Redefining Brownfield Cleanup


Though the State's $140 billion budget was enacted without proposed brownfield cleanup reforms, Governor Cuomo and the State Senate and Assembly are continuing to discuss amending and extending New York State's Brownfield Cleanup Act. These reforms include extending tax credits, termination from the BCP for missing a cutoff date, and redefining brownfield itself. Negotiations on specifics are likely to continue, but time is running out because the current tax credits run out in 2015.

Section members David J. Freeman and Lawrence Schnapf have more in a recent article on the topic published in the New York Law Journal.

April 13, 2014

NY Environmental Enforcement Update February 2014, #14


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


Enforcement News for February

DEC Proposes Environmental Monitor Policy

DEC proposed the first changes in its monitoring policy since 1992. The 60-Day Comment Period Runs to April 14, 2014. The use of Monitors has been periodically criticized as unfair and burdensome to regulated entities since its inception.

The four proposed criteria to determine the need for a monitor are where:
- environmental monitoring is required by law,
- the material at the site is a concern due to its characteristics or quantity,
- there are concerns with the compliance history or past practices of the regulated entity,
- DEC determines the regulated facility, site or activity needs additional oversight.

Proposed monitoring services will be provided by qualified:
- DEC employees who operate under DEC supervision;
- individuals who are employed by another governmental agency approved by DEC, operating under DEC supervision;
- entities whose services are directly contracted by DEC, operating under DEC supervision; and
- entities whose services are directly contracted by the regulated entity, subject to DEC's initial and continued right of approval, operating under DEC supervision.


NYCDEP Dry Cleaner Disclosure Rule Takes Effect

A new rule promulgated by the New York City Department of Environmental Protection (NYCDEP) took effect requiring the City's approximately 1,400 dry cleaners to post signs disclosing the primary chemicals used in the dry cleaning process. The signs are to list information including the chemicals and a link to information about their potential health effects.


Texas Fracking and Air Pollution Enforcement

While controversial authorized hydraulic fracturing, or "fracking," will not happen in NY before 2015 (at the earliest), it is worth noting that fracking derived air emission regulation and enforcement are significant issues in Texas' Eagle Ford Shale region.


Costco to Pay $60k for Selling Banned Pesticides

The Costco Wholesale Corporation will pay a civil penalty of $60,000 after a NYSDEC investigation revealed that the company sold banned pesticides which are specifically banned from sale on Long Island. The bans are especially relevant for the protection of Long Island's sole source aquifer. The company was also ordered to remove the pesticides at issue from all its stores throughout the region and to issue a recall notice to its member shoppers. If there were any doubts about the violation, the product's label literally read, "Not for sale, sale into, distribution and or use in Nassau, Suffolk, Kings and Queens counties of New York" (emphasis added). The penalty level was partially determined by the number of banned product containers in stock in Costco's stores (over 1,000 containers were estimated).


Enforcement People in the News

Emily Lloyd Re-appointed NYCDEP Commissioner

Ms. Lloyd returns to her old position as NYCDEP Commissioner in the new de Blasio administration after originally serving in that post from 2005 to 2009. Previously, she also served as the New York City Department of Sanitation Commissioner from 1992 to 1994.


Federal Criminal and Civil Enforcement

Operation Crash Slams More Alleged Rhino Horn Smugglers (SDNY)

This federal investigation continues to expose the international criminal conspiracy to smuggle ivory which based on these indictments allegedly stretches to Hong Kong and the Chinese mainland. Here, one of the defendants also allegedly tried to bribe a federal agent.


SPECIAL FEATURE: Selected OSHA/NYSDOL Violations

Explosion at Syracuse Waste Water Treatment plant - Man Dies

A September 2013 explosion at the Canastota Wastewater Treatment Plant killed one worker and injured another as contractors were attempting to replace piping inside a methane gas dome in a confined space. One contractor was issued three serious citations with $14,700 in proposed fines. The other was issued seven serious citations with $31,020 in fines. A serious violation occurs when there is substantial probability that death or serious physical harm could result from a hazard about which the employer knew or should have known.


DEC Region 4 Administrative Orders

It is always worth noting that NYSDEC Region 4 is currently the only DEC Regional office that regularly posts all administrative enforcement consent orders and settlements. However, this data can be a useful window into the agency's enforcement policies statewide.


In the Matter of Village of Athens
Modification of Consent Order, February 6, 2014
R4-2001-0313-35M5

The Department lifted a moratorium on new sewer hookups and extended a compliance schedule for sewer line construction due to the Village's past performance and in deference to unavoidable cold weather delays.


In the Matter of Lowe's Home Centers
Order on Consent, February 6, 2014
R4-2013-0927-118

Respondent, a retailer, violated ECL 33-1301.1(b) by offering for sale, nine damaged containers of general use pesticides and was assessed a civil penalty of $1,000.


In the Matter of Cherry Valley-Springfield Central School District
Order on Consent, February 7, 2014
R4-2014-0110-2

Respondent municipality exceeded various SPDES permit parameter effluent limits on approximately sixty occasions in violation of the waste water treatment plant's SPDES permit and 6 NYCRR Part 750-1.4. A civil penalty of $25,313 was assessed with $5,063 payable and the balance suspended conditioned on compliance with the Order.


In the Matter of Town of Rotterdam
Order of Consent, February 25, 2014
R4-2014-0117-7

Respondent municipality violated 6 NYCRR Part 750-2.8(a)(2) by failing to maintain the above ground sewer main that was involved in two separate breaks and violated ECL Section 17-0803 when sewer main discharged untreated sewage in those incidents. A civil penalty of $2,200 was assessed.


DEC Administrative Decisions and Orders

A full listing of recent decisions can be found on the DEC website.


In the Matter of Corona Heights Trading Inc.
Order, February 20, 2014
DEC File Nos. R2-20090522-317 & R2-20090713-434

In an unusual legal repudiation, the Commissioner reversed the ALJ's report and held that a violation of an existing consent order can warrant a separate administrative penalty in addition to any unpaid or suspended penalties left over from the underlying consent order. The ALJ had originally found that the DEC was only entitled to an unpaid portion of the original payable penalty plus the suspended penalty for the violation of the Order due to a failure to remit the full payable penalty. The Commissioner disagreed and noted that the ALJ had confused the suspended penalty provision of the original order with stipulated penalties that set predetermined penalties between the parties. Based on the standard penalty criteria the Commissioner assessed an additional $5,000, for the violation of the consent order as an independent violation of ECL 71-2907(1) and ordered the payment of the remaining $10,500 combined unpaid and suspended penalty. Respondent did not appear in response to a 6 NYCRR 622.12, motion for order without hearing (granted by the Commissioner as well).


In the Matter of UNS Auto Repairs Inc., Masood H. Najmi, George E. Ampratwum, Fatai Yinusa, and Gary V. Wongbong
Order, February 6, 2014
DEC Case No. CO2-20100615-19

Respondents completed 979 onboard diagnostic (OBD) II inspections of motor vehicles using noncompliant equipment and procedures in violation of 6 NYCRR 217-4.2. OBD inspections are critical for determining a vehicle's air pollution emissions compliance and the efficient performance of major engine components. After a complex analysis based on past rulings, a combined payable civil penalty of $171,000, was assessed on a pro rata basis against various individual corporate and individual defendants. However, only $36,000 of the total was assessed against the individuals only because of the doubt cast on the legal existence of the corporate defendant.

Note: Based on prior holdings, the Commissioner continues to refuse to apply joint and several liabilities among the respondents in Part 217 OBD proceedings.


In the Matter of U.S. Energy Development Corporation
Ruling of the CALJ Further Amending Discovery Schedule, February 12, 2014
DEC File No. R9-20111104-150

This ruling modifies this actions extensive discovery schedule including the service schedule for subpoenas below in the prior Chief ALJ Ruling of February 4, 2014.


In the Matter of U.S. Energy Development Corp.
Ruling of the Chief Administrative Law Judge on Motion for Issuance of Subpoena Duces Tecum, February 4, 2014
DEC File No. R9-20111104-150

The Chief ALJ granted Respondent's motion to issue a subpoena to another state agency in accordance with previous rulings in this action. Respondent (generators of hydraulic fracturing or fracking wastes upstream in PA.) seeks discovery from the NYS Office of Parks, Recreation and Historical Preservation to support its various defenses involving the causation of alleged stream pollution violations. The Chief ALJ had ruled that CPLR 3101[a] provided for the issuance of a subpoena duces tecum by leave of the ALJ pursuant to the Department's statutory grant of the subpoena power (see Matter of U.S. Energy Develop. Corp. , Ruling of the Chief ALJ on Discovery Requests, Dec. 11, 2013, at 4-5 [citing ECL 3-0301(2)(h)]; see also ECL 71-1709[1]; see generally Matter of Irwin v Board of Regents of Univ. of State of N.Y. , 27 NY2d 292, 296-297 [1970]; Matter of Moon v New York State Dept. of Soc. Servs. ,207 AD2d 103, 105 [3d Dept 1995]).


Weird News

Pot Farmer Gets 6 Years for Using Rat Poison, Other Nasty Stuff (E.D. of California)

A Mexican national was sentenced to six years in prison for among other offenses: releasing rat poison and FIFRA restricted use insecticides in connection with a large illegal marijuana farm in the Lilly Canyon area of the Sequoia National Forest.

Among the chemical poisons and restricted use pesticides used on the farm were: zinc phosphide, a substance so toxic that a single swallow can kill a small child, and; carbofuran, where the ingestion of a single grain will kill a bird and one quarter of a teaspoon is fatal to humans. Who says marijuana is harmless?!

_____________________________________________________________________________________________________________________

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

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

March 30, 2014

NY Environmental Enforcement Update January 2014, #13


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

Enforcement News for January

Crude Oil Swamps NY

Governor Cuomo issued an executive order directing several State agencies to undertake a complete review related to rail and water shipments of volatile crude oil from the Bakken oil fields in North Dakota. Governor Cuomo's Executive Order 125 directed DEC, the Department of Transportation, the Division of Homeland Security and Emergency Services, the Department of Health, and the New York State Energy Research and Development Authority to undertake a review of all security, health and environmental issues. These agency commissioners also sent a letter to several federal agencies urging new federal regulations regarding rail transportation to help protect New York communities.

In a related matter, DEC is considering the application of Global Companies Inc. to modify its Title V air permit to allow the installation of oil heaters to ease the transfer of crude oil in the Port of Albany.


Harbor at Hastings Settles on PCBs Clean Up

The Atlantic Richfield Company (ARCO) has agreed to enter into an Order on Consent to clean up contaminated soils and Hudson River sediment at the Harbor at Hastings site in Westchester County. ARCO's predecessor, released polychlorinated biphenyls (PCBs) during manufacturing operations at the site.


Clean Sweep NY Sees Continued Success

DEC collected 138,000 pounds of chemicals during the most recent phase of the Clean Sweep NY program, conducted in eleven counties in the Western Finger Lakes region. The program allows businesses, farms and schools to properly dispose unwanted or obsolete pesticides and other chemicals. The program rotates to different areas of the state on a schedule established by the agency.


Federal Criminal and Civil Enforcement

Enviro Lab Falsifies Documents (NDNY)

A commercial laboratory pleaded guilty to committing mail fraud for the falsification of over 3,300 laboratory results from 2008 through 2010, and was sentenced to pay a $150,000 fine and five years of probation. The defendant, Upstate Laboratories, had been a certified laboratory that performed chemical and environmental analysis of water and soil samples supplied by public and private clients. Falsified sampling results involved missed holding times, routine "backdating" of sample results and phony analytic reports.


Feds, Queens DA Chomp Down on Illegal Piranha Importer (EDNY)

In a joint federal, state and local prosecution, an individual and his solely-owned corporation, pleaded guilty in federal court in Brooklyn to violating the Lacey Act for deliberately mislabeling imported piranhas. The defendant instructed his tropical fish supplier to falsely label the dangerous and carnivorous piranhas as common and docile tropical aquarium fish. In 2011 and 2012, this scam falsely identified 39,548 piranhas, worth approximately $37,376, which were then sold to fish retailers in several states. The individual will pay a $3,000 fine while the corporation pays a $35,000 fine and as well as $35,000 in restitution to the DEC.


Rare CERCLA Pleas for Illegal Handling and Disposal of Asbestos (NDNY)

Two defendants pleaded guilty in federal court to conspiracy to violate the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) in relation to the illegal removal, handling, and disposal of asbestos from properties. The underlying indictment also charged the defendants with making false statements to law enforcement officers and retaliating against a witness. Defendants also failed to immediately report the release of asbestos from properties. The CERCLA crimes occurred during the course of an asbestos abatement of a buildings heating system. In the continuation of a current NY trend, this federal prosecution was based on a joint federal, state and local investigation.


Illegal Rhino Horn Trafficker Gets the Point (EDNY)

An Irish national was sentenced in federal court to serve 14 months for conspiracy to violate the Lacey Act for illegal rhinoceros horn trafficking. This prosecution is another result of Operation Crash which is part of a worldwide law enforcement effort to halt the illegal trade in the ivory of endangered species.


Feds Slam Suffolk Co. for $2 Million for UST Violations (EDNY)

The US Attorney for the Eastern District of New York and EPA Region 2 settled with Suffolk County for violating the federal leak prevention requirements for underground storage tanks at 35 County facilities. The violations involve 68 underground gas or waste oil storage tanks. The seriousness of the violations was enhanced as the tanks are located within the boundaries of a federally designated Sole Source Aquifer.


Ex-Manager Sentenced For Falsifying Nuclear Facility Records (SDNY)

The former Chemistry Manager of the Indian Point nuclear power plant was sentenced in the U.S. District Court to 18 months' probation and a $500 fine for engaging in deliberate misconduct. The defendant had concealed material facts from his employer and the Nuclear Regulatory Commission by fabricating test data, falsely showing that diesel fuel met NRC standards for particulate matter. The diesels are necessary for emergency power generation at the plant.


Two More Plead Guilty In NY-NJ Waste Industry Scheme (SDNY)

In an ongoing criminal action, two more defendants pleaded guilty in the SDNY for an illegal scheme to exert control over the commercial waste-hauling industry in the greater New York City metropolitan area. To date, 21 of the original 32 defendants have pleaded guilty. The two here were part of the Gambino Crime Family who participated with members of three different Organized Crime Families of La Cosa Nostra ("LCN") in a scheme to control various waste disposal businesses and commit various crimes as part of that scheme.


SPECIAL FEATURE: Selected OSHA/NYSDOL Violations

Brooklyn Tank Recycler Cited After Employee Heat Death

The U.S. Department of Labor's Occupational Safety and Health Administration ("OSHA") has cited Cooper Tank & Welding Corp., for eight health and safety violations following the heat-related death of a 64-year-old employee. The worker had been working for several hours on a conveyor line, sorting and recycling construction and demolition waste, when he reached a fatal level of exposure to excessive heat from environmental sources and recycling machinery. OSHA states that this incident could have been avoided through reasonable measure such as establishing and implementing a heat stress management program.


DEC Region 4 Administrative Orders

It is always worth noting that NYSDEC Region 4 is currently the only DEC Regional office that regularly posts all administrative enforcement consent orders and settlements. However, this data can be a useful window into the agency's enforcement policies statewide.


In the Matter of Chazen Companies
Order, December 27, 2014
R4-2013-1105-132

Respondent was assessed a $1,000.00 penalty for failing to report a petroleum spill in violation of 6 NYCRR Part 613.8. It is significant to note that the Respondent is an environmental consultant that failed to report a spill observed during the performance of a Phase II site investigation. Respondent was also deemed to meet the definition of a "person" for spill reporting purposes as defined by 6 NYCRR Part 612.1(c)(20).


In the Matter of ARG Trucking
Order, January 27, 2014
R4-2013-1226-139

Respondent violated 6 NYCRR 230.2 (f)(4) by failing to connect the vapor return line between a delivery truck and the vapor port for the underground tanks, during a gasoline fuel delivery and was assessed a civil penalty of $5,000.00.


In the Matter of Town of Bethlehem
Order Modification, January 28, 2014
R4-2011-1109-143M

Based on "good cause" shown by Respondent, NYSDEC agreed to a six-month extension of a technical compliance schedule in the original Order. The original Order pertained to engineering changes to be implemented on the municipal sewer system operated by Respondent.


In the Matter of SABIC Innovative Plastics US
Order, January 31, 2014
R4-2013-1230-140

Respondent a plastics manufacturer paid a civil penalty of $16,000.00, for 28 separate violations of various hazardous waste storage, handling and associated records violations in 6 NYCRR Parts 372 and 373. Respondent's liability was enhanced by being deemed a major hazardous waste generator. This scenario demonstrates the costly consequences of generating hazardous waste without regulatory guidance.


DEC Administrative Decisions and Orders

In the Matter of Robert Dalcamo
DEC File No. R1-20110613-196
Order, December 1, 2013

Respondent disposed of more than 70 cubic yards of solid waste at an unauthorized solid waste disposal facility, in violation of 6 NYCRR 360-1.5(a); and operated a solid waste management facility without a valid permit, in violation of 6 NYCRR 360-1.7(a)(1)(i). Upon granting a Motion for a hearing without an Order, the Commissioner assessed a civil penalty of $90,000, of which $45,000 was payable within thirty (30) days, and $45,000 suspended contingent upon compliance with the order. Respondent did not appear.

However, the Commissioner denied a staff request to impose a "lifetime ban" on Respondent from engaging in future environmental activities due to insufficient facts on the record. Staff's request relied primarily on Respondent's prior environmental enforcement record dating back to the early 1990s.


In the Matter of A & P Mart and Arundeep Vij
DEC File No. 12-33, R9-20120524-53A
Order, December 17, 2013

The Commissioner ruled in favor of the DEC's Motion for a Default Judgment where Respondents violated the terms of a relatively minor 2012 prior administrative consent order for petroleum tank paperwork violations. Respondents failed to pay the previously agreed upon $1,500 civil penalty and submit the required records and were assessed a combined new penalty of $7,000 (including the original penalty) for violating the underlying order. Respondent failed to appear.


In the Matter of Grand Concourse East HDFC (1003 Grant Avenue)
DEC Case No. PBS 2-601137NBT
Order, December 17, 2013

Respondent violated 6 NYCRR 612.2 for the failure to reregister a petroleum storage facility, within 30 days of the transfer of ownership of the facility to it and then failed to re-register its facility for approximately eighteen years. The Commissioner granted a Motion for a Default Judgment as Respondent did not appear and was assessed a civil penalty of $10,000 and ordered to submit a registration application to the DEC for the facility.


In the Matter of San Miguel Auto Repair Corp., Andre Moncion, Hector R. Cabrera, Genelly Cornelio, and Cristian Tejada
DEC Case No. CO2-20100615-18
Order, December 17, 2013

Respondents completed on-board diagnostic (OBD) II inspections of motor vehicles using noncompliant equipment and procedures in violation of 6 NYCRR 217-4.2. OBD inspections are critical for determining a vehicle's air pollution emissions compliance and the efficient performance of major engine components. A combined civil penalty of one hundred fifty thousand eight hundred seventy-five dollars ($150,875), was assessed against various defendants with the onus falling on the corporate defendant.


In the Matter of 735 Pelham LLC
DEC File No. R2-20110120-23
Order, December 18, 2013

In a significant holding, the Commissioner assessed respondent a total civil penalty of $150,000, with $80,000 payable and $70,000 suspended for substantive violations of an underlying 2008 administrative consent order for PBS and oil spill remediation violations. In particular, the Respondent's claims of good faith attempts to comply and remediate the oil spill were held to be "not credible."


In the Matter of U.S. Energy Development Corporation
DEC File No. R9-20111104-150 Ruling of the Chief ALJ Amending Discovery Schedule, December 31, 2013

The Chief ALJ issued a Ruling approving of a very detailed discovery schedule involving multiple subpoenas proposed by Respondent in this complicated case based on underlying alleged waterway violations.


In the Matter of Benaim, Raphy and Tovit, R.B. 175 Corp.
DEC Case No. R2-20120809-487
Order, January 27, 2014

Respondents were assessed a civil penalty of $62,500 (jointly and severally) for violations of an earlier 2009 Stipulation entered with DEC for the investigation and remediation of an petroleum spill at a former gas station site. The violations focused on a faulty and incomplete Remediation Investigation Report ("RIR") submitted by Respondent.


In the Matter of Mahoney, Patrick A.
DEC Case No. CO 7-20110601-100
Decision and Order, January 27, 2014

In a rare adjudicatory hearing brought under the ECL's fish and wildlife law and regulations (ECL Section 11-0533(7), 6 NYCRR 197.8), the DEC revoked a fishing guide's license for one year and assessed a penalty of $200 for violating the state's "no fighting in a public fishing area" prohibition (6 NYCRR Part 59.1). The revocation proceeding was based on the licensee's prior criminal conviction for assaulting a fisherman on the Salmon River.


Weird News

New Environmental Impact Issue! Elves?

Elves (a/k/a the "Little Folk") have been part of Icelandic folk customs since that country's founding in the Viking era. The importance of this local cultural issue recently became apparent when several proposed projects allegedly encroached on elven lands. To date, elves have not been spotted in New York.


Man Indicted for Attempt to Use Deadly X-Ray Weapon (NDNY)

A Galway, New York man has been indicted in the NDNY on several federal felony counts for the development of and plans to use a remotely-operated radiation-emitting device including attempting to produce and use a radiological dispersal device, in violation of Title 18, United States Code, Section 2332h(a) and (c)(1). Don't even ask.

_____________________________________________________________________________________________________________________

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

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

March 29, 2014

5th Annual Environmental Law Section Oil Spill Symposium


The 5th Annual Environmental Law Section Oil Spill Symposium will be held on Tuesday, April 29th at the New York State Bar Center in Albany. The Symposium, hosted by the Petroleum Spills Committee of the Environmental Law Section, will include updates on Navigation Law cases, the Oil Spill Fund and on new brownfield legislation, along with a number of interactive round table discussions on issues such as Oil Spill Fund damage compensation claims, DEC's proposed new petroleum bulk storage regulation and a petroleum site real estate transactions. The Symposium will continue its tradition of providing practitioners with a forum to discuss timely topics and exchange ideas related to petroleum spills in the State of New York.

The half-day program agenda and registration information is available online. A networking cocktail reception will follow the Symposium.

March 20, 2014

David Sive, Father of Environmental Law, Passes Away


David Sive, an intellectual and spiritual leader of the modern environmental law movement, passed away on March 12, 2014. He played an important part in keeping the Adirondacks and Catskills "forever wild" and was instrumental in the Storm King Mountain decision. Through numerous cases, Sive greatly advanced the environmental movement. He taught at Columbia and Pace Law Schools and was the founding partner of Sive, Paget & Riesel P.C.

Sive, Paget & Riesel and the New York Times have more details about this incredible man's life.

The NYSBA Environmental Law Section mourns this great loss and sends his family its condolences.

February 27, 2014

NY Environmental Enforcement Update December 2013, #12


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

Enforcement News for December

Greene Co. Sewer Hook Up Ban lifted after 10 years

In an example of DEC enforcement discretion, the agency lifted its 10 year moratorium on new connections to the Town of Cairo's wastewater treatment plant. The Town won this reprieve by making required improvements to its wastewater treatment facilities to increase flow at the plant to accommodate new development in the town.

Improvements included plans to reduce inflow and infiltration, management of high wet weather flows, and fixing existing filters.


Thermostat Recycling Bill Signed 12/19/13

This legislation (S.1676A/A.8084), which was sponsored by both environmental committee chairmen (Senator Mark Grisanti and Assemblyman Robert Sweeney), will require thermostat manufacturers to collect and safely dispose of mercury-containing thermostats, a major source of mercury in the waste stream. The effective date of this new law is July 1, 2014.


Proposed Federal Rule Would Allow Some Eagle Deaths by Wind Farms

The Obama administration is now moving toward finalizing a rule that would allow wind farms to kill bald and golden eagles under certain conditions. The proposed Interior Department rule extends the length of the permits that allow farms to "unintentionally" kill the eagles without penalty from five to 30 years. The rule would authorize the "non-purposeful" killing of eagles in exchange for the adoption of eagle conservation guidelines. This action comes soon after federal enforcement against wind farm operators for the deaths of golden and bald eagles during operations.


Enforcement People in the News

Law Enforcement Director Peter Fanelli Retires

After 32 years of service, Peter Fanelli retired from his position as the Director of the DEC Division of Law Enforcement ("DLE"). "Pete" served in many positions with DLE and finished his distinguished career as the supervising officer of the state's Environmental Conservation Officers. Always generous with his time, he appeared as a panelist at one of the Environmental Section's recent Legislative Forums. The Section wishes him well in retirement.


Beverly Kolenberg of EPA Passes Away

The Environmental Law Section extends its condolences to the family and friends of Beverly Kolenberg. At the time of her death, she had served for 28 years with the United States Environmental Protection Agency where she was Assistant Regional Counsel at the time of her passing. At EPA, she specialized in CERCLA litigation and was a leader of the team that was instrumental in closing the ten year old litigation following the 9/11 attack on the World Trade Center.


Federal Criminal and Civil Enforcement

Canadian Arrested for Money Laundering in Connection with Illegal Importation and Trafficking of Narwhal Tusks

A Canadian man was arrested December 19, 2013 in St. John, New Brunswick, Canada, on an extradition warrant requested by the United States for money laundering crimes related to the illegal importation and illegal trafficking of narwhal tusks. Narwhals are arctic dwelling whales with a single large tusk that is subject to the legal restrictions against the world ivory trade.


Natural Gas Fracker Pays Penalties, Remediation Costs for Clean Water Violations in West Virginia

While not a NY-based action, a recent settlement between the federal enforcers and Chesapeake Appalachia LLC, a subsidiary of Chesapeake Energy, may set the benchmark for future enforcement involving the fracking industry. The Department of Justice and the EPA settled CWA violations with the company, the nation's second largest natural gas producer. Chesapeake will pay a $3.2 million penalty and spend an EPA-estimated $6.5 million to restore 27 sites damaged by unauthorized discharges of fill material into streams and wetlands. It will also comply with federal and state water protection laws at the company's natural gas extraction sites in West Virginia. Many of the violations involved hydraulic fracturing ("fracking") operations.


Rhino Horn Smuggler Pleads Guilty in New Jersey to Wildlife Trafficking Crimes (Multiple Federal Jurisdictions)

The owner of an antique business in China pleaded guilty to organizing an illegal wildlife smuggling conspiracy involving the smuggling of 30 rhinoceros horns and numerous objects made from rhino horn and elephant ivory from the USA to China. The ivory objects are valued at $4.5 million.


New York Antiques Dealer Sentenced to 37 Months in Prison for Wildlife Smuggling (SDNY)

A New York antiques dealer, was sentenced in SDNY federal court to 37 months in prison for conspiracy to smuggle Asian artifacts made from rhinoceros horns and ivory and violate wildlife trafficking laws.


DEC Region 4 Administrative Orders

It is always worth noting that NYSDEC Region 4 is currently the only DEC Regional office that regularly posts all administrative enforcement consent orders and settlements. However, this data can be a useful window into the agency's enforcement policies statewide.


In the Matter of Red-Kap Sales
Order, December 17, 2013
R4-2013-1112-136

Respondent violated regulations at 6 NYCRR 230.2 (f)(4) by failing to connect and ensure proper operation of the stage I vapor collection and control system during the gasoline fuel delivery. Penalty: $2,500.00.


In the Matter of Cooperstown Brewing
Order, December 16, 2013
R4-2013-1004-119

Respondent's site's subsurface disposal system discharged to the surface in violation of the conditions of the former owner's SPDES permit in violation of ECL Section 17-0803.
Penalty: $4,000.00, with $2,000 payable and $2,000 suspended.


In the Matter of Springer's Inc.
Order, December 16, 2013
R4-2013-1004-120

Respondent operated an unregistered petroleum bulk storage ("PBA") tank and failed to make hazardous waste determinations in violation of a number of provisions of 6 NYCRR Parts 612, 613, 614 and 371. Penalty: $10,400, with half payable and half suspended.


In the Matter of Amsterdam Printing & Litho
Order, December 9, 2013
R4-2013-1004-122

Respondent violated five hazardous waste handling and related administrative regulations as per 6 NYCRR Parts 372 and 373. Penalty: $7,100.00.


In the Matter of Ronald Schaefer
Order, December 9, 2013
R4-2013-1105-133

Respondent violated the discharge limitations of a SPDES waste water discharge permit on 16 occasions. Penalty: $58,000.00 with $12,000 payable and $46,000 suspended.


In the Matter of Lawrence Eckhardt
Order, December 6, 2013
R4-2013-0820-109

Respondent violated 6 NYCRR Part 608.2, for disturbing the bed and bank of a stream by placing fill without an ECL Article 15 permit. Penalty: $1,000.00.


In the Matter of Terry Jacobs
Order, December 5, 2013
R4-2013-1106-134

Respondent violated 6 NYCRR Part 663.4(31) for constructing a small dock in a freshwater wetland without a permit. Penalty: $500.00.


In the Matter of Shelter Enterprises
Order, November 26, 2013
R4-2012-1029-101

Respondent committed three violations of sections of 6 NYCRR Parts 201-1.7 and 211.11, for operating and air emissions violations for volatile organic compounds ("VOC") and the hazardous air pollutant ("HAP") pentane emissions. Penalty: $33,000.00, payable in seven installments.


DEC Administrative Decisions and Orders

In the Matter of U.S. Energy Development Corporation
Ruling of the Chief ALJ (on Discovery Requests),
DEC No. R9-20111104-150, December 11, 2013

In an interesting discovery Ruling, the Chief ALJ explored the Office of Hearing's authority to govern the schedule and issuance of third party subpoenas under 6 NYCRR Part 622 and the ECL as opposed to the broader discovery authority found in CPLR Article 31. The Chief ALJ ruled that respondent shall serve discovery demands and subpoenas directly on a third party state agency in accordance with all applicable rules including, but not limited to, ECL 3-0301(2)(h) and 6 NYCRR 622.7(b).

The Ruling also addressed the circumstances under which the administrative agency has the power to issue subpoenas versus a court's authority under CPLR Section 2307. The Ruling stated that this CPLR Section does not apply citing Matter of Irwin v Board of Regents of Univ. of State of N.Y. , 27 NY2d 292, 296 [1970]). "Instead, the Department's statutory grant of the subpoena power is examined to determine a party's entitlement to issuance of a subpoena (see id. at 297; Matter of Moon v New York State Dept. of Soc. Servs. , 207 AD2d 103, 105 [3d Dept 1995])."


In the Matter of 428 East 157th Street HDFC
Order No. PBS 2-601195NBT November 27, 2013

The Department's Motion for a Default Judgment was granted and Respondent was ordered to pay a penalty of $10,000.00 for the failure to register a petroleum bulk storage ("PBS") tank in violation of 6 NYCRR Part 612.2.


In the Matter of Grand Concourse East HDFC (1007 Grant Avenue)
Order No. PBS 2-601185NBT, November 27, 2013

The Department's Motion for a Default Judgment was granted and Respondent was ordered to pay a penalty of $10,000.00 for the failure to register a petroleum bulk storage ("PBS") tank in violation of 6 NYCRR Part 612.2.


Weird News

Wind Farms Weaken Hurricanes?

A serious scientific presentation at the annual meeting of the American Geophysical Union raised the idea that there may be positive impacts of large wind farms in decreasing hurricane intensities while also harvesting the potential energy of these storms.

Electric Car Owner Charged with Theft of Juice
A new environmental crime? We will will have to wait and see.

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

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

February 6, 2014

Judges wanted for 2014 National Environmental Law Moot Court Competition (Free CLE Credits)


Pace Law School, host of the 2014 National Environmental Law Moot Court Competition, is seeking judges for the upcoming event. Judges will earn CLE credits and additional credits may be earned by attending CLE courses which are offered the same days. See below for more information from the student-organizers:

The 2014 Competition will be held on the White Plains campus February 20-22. Seventy-five schools (including law schools from New York State) are registered to participate in this preeminent moot centered on current, and often controversial, environmental issues. Attorneys who are admitted to the bar are invited to judge the preliminary rounds of oral arguments. Two NYS CLE practice credits may be earned per round of judging. Additionally, two CLE courses (ethics & practice credits) will be offered free of charge on February 20 and 21 to attorneys who judge the competition. For information and registration, click here. Interested persons also can direct questions to nelmcc@law.pace.edu or call (914) 422-4413.

January 21, 2014

Pace Law School Offers Environmental Law "Summer School"


The registration period for Pace Law School's Summer International Environmental Law Institute is now open. The Institute offers courses lasting four to ten days on various topics of environmental law, with a primary focus on international environmental law.

Classes take place from 1:00-4:00 pm or from 6:00-9:00 pm at the Fred French Building in midtown Manhattan, just a few blocks from Grand Central. This program may be of interest to our Section members considering an LL.M. in environmental law or whom work with wind energy or oceans and coasts. The program is open to students, attorneys, and other interested professionals.

To learn more about the program, visit the Pace Law School's Summer International Environmental Law Institute website or contact Laura Jensen.

January 12, 2014

2014 Environmental Law Section Annual Meeting


It is nearly time for this year's Environmental Law Section Annual Meeting. Please take the time to pre-register so that you may attend. Here is the agenda for this year's meeting:

Dates: January 30-31, 2014
Location: Hilton Midtown, 1335 Avenue of the Americas, New York City

Thursday, January 30th

Environmental Law EPA Update
5:00 PM - 6:00 PM
Murray Hill East, 2nd Floor

EPA Attorneys Carl Howard (Moderator), Marla Wieder, Chris Saporita and Mary McHale will discuss the latest regulatory and legal developments in the fields of water, waste, and air with a special emphasis on issues of regional significance. EPA will award one (1) hour of CLE credit. Pre-registration is required. The event is free. Contact Kathy Plog at kplog@nysba.org to pre-register no later than January 23, 2014.

Section Business Meeting
Thursday, January 30
6:10 PM - 7:00 PM
Section Reception
7:00 PM - 8:30 PM

The meeting is open to all Section members and there will be a cocktail reception following the business portion of the meeting. Pre-registration for the meeting is required because of the need to ensure there is sufficient food for the cocktail reception that will follow the business meeting portion of the event Contact Kathy Plog at kplog@nysba.org to pre-register no later than January 23, 2014.


Friday, January 31

Annual Meeting Program
8:30 AM - 12:15 PM
East Ballroom, 3rd Floor
A session filled with discussions on a number of hot topics facing environmental attorneys today, including DEC's Proposed Liquid Natural Gas Regulations; Ethical and Practice Issues for Environmental Lawyers; The Gas Preemption Cases Before the New York State Court of Appeals: A Moot Court and SEQRA vs. Article 10.

Luncheon
12:30 PM - 2:00 PM
Murray Hill, 2nd Floor
To reserve a table at the luncheon, download luncheon table reservation form and return with your payment.

Executive Committee Meeting
2:15 PM - 4:30 PM
Regent Sutton South, 2nd Floor

For more information about the program or to register online visit: www.nysba.org/am2014ENV/

January 11, 2014

Sea Level Rise Estimates Allowed in Sandy Recovery


At over a year since Superstorm Sandy struck, with Mayor Bloomberg's and Gov. Cuomo attributing some of the storm's intensity to climate change, the Federal Emergency Management Agency has issued an sea level rise(SLR) memorandum that allows SLR to be incorporated into hazard mitigation projects.

Though the Sandy recovery has been under way for over a year, many hazard mitigation projects are still undergoing design and re-design. These projects, which aim to reduce the risk of future damage, must be cost-effective to be funded by FEMA. By allowing SLR to be incorporated into the benefit-cost analysis used to determine cost-effectiveness, those projects which incorporate SLR into their designs are more likely to receive FEMA approval and be funded through the Public Assistance or Hazard Mitigation Grant Program.

Importantly, as the Frequently Asked Questions attached to the SLR Memo lays out, the inclusion of SLR in projects is voluntary. Those seeking funding for hazard mitigation projects will need to take it upon themselves to include this data in their projects. Those that do will be better prepared for the next big storm and not be blindsided by the effects of climate change.