By Michael J. Lesser, Environmental Section, NYSBA © 2013
GENERAL STATE ENFORCEMENT NEWS
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
NYS DEC
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.
NYSDEC ADMINISTRATIVE ENFORCEMENT
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.
STATE CRIMINAL ENFORCEMENT
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.
FEDERAL CRIMINAL ENFORCEMENT (NY)
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.
