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March 2013 Archives

March 8, 2013

NYSDEC Briefs Brownfields Parties on 2013 Certificate of Completion Procedures

By Mike Lesser

On March 7, 2013, the DEC held its annual Certificate of Completion ("COC") briefing for Brownfield Cleanup Program ("BCP") parties anticipating the issuance of a complete and approved COC in the 2013 calendar year. The DEC currently projects issuing up to fifty-nine COC this year. The process itself involves the parallel development of series of critical documents including Site Management Plans ("SMP"), Final Engineering Reports ("FER"), and Easements. The delivery of these documents and any relevant attachments should be in approved formats or media and are generally time sensitive. These also may require proof of notice and service. Given the complexity of the COC procedures and the ever shrinking DEC staff it behooves all interested attorneys and consultants to be proactive and current with all BCP and COC procedures, templates, forms and checklists. For more information, consult the following NYSDEC information links:

COC Process; SMP, FER and Easement Templates; Easement Attorney Checklist & Certification

http://www.dec.ny.gov/chemical/48236.html (or search "Templates");

Electronic Data Deliverables (EDDs)

http://www.dec.ny.gov/chemical/62440.html (or search "environmental data submission").

March 14, 2013

NY Environmental Section Enforcement Update February 2013

By Michael J. Lesser, Environmental Section, NYSBA © 2013


Commissioner Proposes Environmental Audit Initiatives Policy
February finds the NYSDEC seeking public comment for the first new major enforcement initiative in several years. The proposed Commissioner Policy ("CP") encourages regulated entities to perform facility audits to achieve more compliance with the Environmental Conservation Law ("ECL"). At its core, the proposed CP is a revised version of an older NYSDEC amnesty policy which reduces or waives penalties for violations that are discovered and disclosed voluntarily subject to certain exceptions and conditions. What really differentiates this proposed CP from previous policies is the potential involvement of other state agencies and public authorities in the pollution prevention process. This includes audit assistance and reimbursement of some compliance costs. This proposed policy supersedes and repeals Commissioner Policy 19, entitled "Small Business Self-Disclosure Policy." The 60 day public comment period extends through Monday, April 22, 2013.  Written comments can be directed to:

    Monica Kreshik
    Office of General Counsel
    625 Broadway
    Albany, NY 12233-1500

or via to the Office of General Counsel at ogc@gw.dec.state.ny.us

Attorney General Schneiderman Continues Air Enforcement Action

New York joined seven states, the U.S. Environmental Protection Agency (EPA) and several environmental groups in reaching an agreement that will require American Electric Power (AEP), the nation's largest power company to make further cuts in air pollution emissions at 16 of the company's coal-fired power plants. The agreement updates a previous settlement, and requires AEP to pursue greater and faster reductions in sulfur dioxide (SO2) emissions.  The settlement also increases the funding AEP will pay New York by an additional $715,000 to fund environmental and public health projects.


In the Matter of Trinity Transportation Corporation 
NYSDEC enforcement hearing regulations found at 6 NYCRR Part 622.12, allow the department's staff to commence an enforcement action using a motion for order without hearing. These are commenced by the submission of supporting affidavits reciting all the material facts and other available documentary evidence. The legal standards necessary to sustain the motion are those used for a CPLR summary judgment. In this case, Ruling, February 12, 2013, DEC File No. R1-20111206-200, the Administrative Law Judge ("ALJ") found that there were no material issues of fact regarding the underlying ECL violations (the improper disposal of a number of waste drums). However, the ALJ did find that there were substantial questions of fact regarding the civil penalty amount requested by DEC Staff due to disputes as to the number and condition of the drums. 

The true value of this case to the practitioner is that the ALJ provides a clear and concise summary of the administrative hearing precedents for these motions as well as the rulings on Respondent's defenses including a rejection of selective prosecution.


Dye Test Leads to Guilty Plea for Sewage Discharge into Catskill Creek

Following a NYSDEC investigation and dye test, a defendant pleaded guilty on January 10, 2013, in the Town of Catskill Justice Court to discharging sewage to the waters of the state without a valid permit.  He was fined $15,000, in the disposition of a misdemeanor charge. The defendant was charged with one count of discharging sewage to Catskill Creek for pumping raw sewage from the septic tank at his rental property into a nearby drain which then flowed into the municipal storm water system and then eventually to the creek. While not specified in the news item, unpermitted sewage discharges may invoke ECL Section 17-0803 as enforced by the criminal provisions of ECL Section 71-1933.


The rundown of February's USEPA and US DOJ enforcement summaries read more like the synopsis of a Carl Hiaasen novel than a criminal docket given the focus on rare and endangered species. If you are unfamiliar with Hiassen's fiction, his villains are often sordid environmental despoilers that ultimately learn the literal meaning of the term "environmental justice" in a spectacularly lethal way.

Antiques Dealer Sentenced to Six Months for Illegal Trafficking of Endangered Rhinoceros Horns (SDNY)
On February 14th, an antiques dealer in Manhattan was sentenced in Manhattan federal court to six months in jail for obstruction of justice and creating false records in connection with illegal rhinoceros horn trafficking.

Rhino Smuggling Ring Broken Up (SDNY and other federal courts)
Three people were charged with wildlife smuggling and related charges for their alleged roles in an international rhino horn smuggling ring. The arrests and charges were part of "Operation Crash", a nationwide effort led by the U.S. Fish & Wildlife Service (FWS) and the Justice Department to investigate and prosecute those involved in the black market trade of endangered rhinoceros horns.

Executive Sentenced to Pay $1.1 Million in Fines and Community Service for Illegal Trade of Protected Black Coral (US Virgin Islands)

The former executive of a U.S. Virgin Islands-based company was sentenced in federal court in St. Thomas, U.S.V.I., for felony customs violations for the illegal import of protected black coral. Previously, his co-defendants had been penalized millions of dollars in additional financial penalties. Two of them were also sentenced to prison.

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 the Blog Administrator at samcapasso@gmail.com with any additional information or corrections or leave a comment.

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


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March 27, 2013

NY Oil Spill Symposium Announced

The NYSBA Environmental Law Section will be presenting the 4th Annual Oil Spill Symposium on Wednesday, April 17th at the New York State Bar Center at One Elk Street in Albany, New York.

The program agenda will include panels and round table discussions on pending State oil spill legislation, Navigation Law liens, remediation, and an update on Oil Spill Fund activities, and recent Navigation Law cases. A networking cocktail reception will follow the Symposium.

To register online, click here.

March 31, 2013

Hydrofracturing Moratorium Continues

New Yorkers have become increasingly cautious about shale gas extraction, according to a poll from Quinnipiac Polling Institute, and this may make this year's moratorium bill more likely to pass.

On March 6, the State Assembly approved Assembly 5424-A which would suspend issuance of drilling permits for high-volume hydraulic fracturing in the Marcellus and Utica formations until May 15, 2015 and requires a SUNY school of public health to complete a comprehensive health impact assessment. The current de facto moratorium on fracking is based on DEC's refusal to issue drilling permits until it completes an environmental impact statement and issues recommendations. DEC's review is conditioned on a review conducted by the New York Commissioner of Health, Dr. Nariv Shah, who in turn is awaiting completion of USEPA's study and studies conducted in Pennsylvania by the Geisinger Health System and the University of Pennsylvania.

The bill was sponsored by Kevin K. Sweeney, chairman of the Assembly Committee on Environmental Conservation, as well as over forty co-sponsors, including Assembly Speaker Sheldon Silver who made remarks about fracking's "unanswered questions" such as its impact on drinking water and climate change and the effect of radioactive material in fracking wastewater. Though a similar bill was introduced in the Senate by Senator David Carlucci a day before 5424-A passed the Assembly, 5242-A will face strong opposition by the Republican majority, as Senator Libous, Deputy Majority Leader, made clear with his stated goal that "no [moratorium] bill passes the Senate."

The fate of the moratorium is not clear even if it reaches Governor Cuomo's desk. Drilling supporters have been pressing hard against him but polling suggests that public opinion is shifting against fracking. Regardless of what happens with the bill, the de facto moratorium will remain effect.

For those looking to catch up on the issues surrounding hydraulic fracturing, ProPublica, the independent, Pulitzer Prize-winning investigative journalism non-profit, has been following the subject in-depth for several years.

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About March 2013

This page contains all entries posted to Envirosphere in March 2013. They are listed from oldest to newest.

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