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NY Environmental Section Enforcement Update March 2013, #3

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

This Month of March 2013, certainly roared in like an enforcement lion with a significant federal court CAA and RCRA enforcement jury verdict, a major federal CERCLA settlement and two significant 6 figure NYSDEC administrative penalty cases. These plus an eclectic mix of enforcement cases gives us something for everyone this month.


Enforcement People in the News

We begin with the unusual news about the resignation of three experienced state environmental enforcement officials at roughly the same time. Most notable is the resignation of Robert Hallman from his position as Governor Cuomo's environmental advisor. This important change was accompanied by the departure of NYSDEC Deputy Commissioner and General Counsel Steven Russo and NYSDEC Region 3 Director Willie Janeway. All three were key enforcement policy makers as well as long-time friends of the Environmental Law Section.

In related news, former NYSDEC Commissioner Erin Crotty has been selected to become the new Executive Director of Audubon New York. The Environmental Section wishes them all well in their future endeavors.

Sadly, our Section also notes the recent passing of former NYSDEC/NYSDOH Hearing officer and Administrative Law Judge Francis "Frank" Serbent. The Environmental Law Section extends its deepest condolences to Frank's family and many friends.


Tonawanda Jury Conviction for CAA Violations

In a rare federal jury trial, a corporation was convicted of 11 counts of violating the Clean Air Act and three counts of violating the Resource Conservation and Recovery Act. In addition, the company's Environmental Control Manager, was found guilty of one count of obstruction of justice and three counts of violating the RCRA. The company's underlying acts included the release of coke oven gas containing benzene into the air through an unreported pressure relief valve, operating a coke-quenching tower without baffles in violation of its Title V Clean Air Act permit. The manager's conviction was due to his instructing another employee to conceal that an unreported pressure relief valve emitted coke oven gas directly into the air.

Environmental Law Section member and AUSA Rocky Piaggione was one of the lead prosecutors for this case. The indictment can be found here.

Another Endangered Species Act Ivory Conviction

Whether it's rare rhinos or endangered elephants, government agencies continue to focus on the ESA in general and the illegal ivory trade in particular. On March 8, a Manhattan-based entity pled guilty to one count of felony-level "Illegal Commercialization of Wildlife." The company owner also pled guilty to one count of misdemeanor-level Illegal Commercialization of Wildlife. As part of the plea settlement, the guilty will forfeit more than 70 pounds of seized ivory pieces which have an estimated retail value of more than $30,000. In addition, a donation of $10,000 was made to the Wildlife Conservation Society for use in international elephant conservation programs.

This case serves as an example of interagency cooperation as it involved federal and state investigators as well as prosecution by the Manhattan DA. The ESA enforcement sector has become very busy on state and federal levels in recent years. While low key, NYSDEC and the US F & WS have had a strong working relationship for many years. Law enforcement personnel from both agencies are often cross deputized which opens the possibility of federal and state prosecutions for the same underlying offenses. It is easier to run afoul of these laws than one might think. So I am sure we will see more of these prosecutions.

Used Cooking Oil Thefts, A New Environmental Crime?

This item as reported in the NY Post can be construed as a testament to the effectiveness of the alternative biodiesel fuel boom. Criminals are now stealing used cooking oil left to be picked up by legal recyclers.

However, one can also assume that it is only a matter of time before this new breed of bio-pirates precipitates a serious spill or discharge of smelly grease to the environment. NYSDEC seems to have anticipated some issues by issuing a biodiesel fact sheet. However, to complicate enforcement versus these crooks used cooking oil is an exception to the state's regulated waste regulations which usually govern commercial waste haulers, 6 NYCRR Part 364(1)(e)(2)(i). If a spill does occur, the state may have to rely on the historic prohibition against "Putting noisome or unwholesome substances or maintaining noisome business on or near a highway" as per ECL § 71-3501.


Multi-Party NRD CERCLA Settlement in Long Running Case

The settlement between Alcoa Inc. and other defendants and the St. Regis Mohawk tribe and state and federal officials involves historic discharges from two factories in Massena that released numerous pollutants, damaging the environment and the downstream Akwesasne (Mohawk) reservation along the Canadian border. Among other items, the settlement provides for $7.3 million for restoring grasslands, wetlands and fisheries; $1 million for buying hundreds of acres for state protection and $8.4 million for tribal programs.


In the Matter of 636 Holding Corp.
Order, March 20, 2013
DEC File No. R2-20110208-46

This significant NYSDEC administrative enforcement proceeding concerns the Respondent's failure to comply with ECL Article 19 and various Sections of 6 NYCRR Part 201 by failing to file a permit or registration application with the Department for its Bronx facility in compliance with 6 NYCRR 201-6.3, and 6 NYCRR 201-6.1(a)(1). The operation ran without a permit for more than six years. The gist of the violations concerned the operation of three stationary combustion boilers without having obtained the required Title V permit, state facility permit or registration certificate. A civil penalty of $159,195 was assessed.

In the Matter of Johnson
Order, March 13, 2013
DEC CASE NO: 2416-2012DK

This Order issued upon a motion for a default judgment for a failure to appear addressed an individual Respondent's violations of ECL 23-0305(8)(f) and 6 NYCRR 551.2, for failing to file complete and accurate annual well reports for the two years for a privately owned gas well. This decision gives some insight into the minimal penalties provided by the ECL for this category of violations. Despite the default and failure to appear, Respondent's penalty was reduced to $1,000, of which only $250 was payable with the balance suspended pending compliance with the law.

In the Matter of West 161, LLC
Order, March 5, 2013
DEC Case No. PBS 2-328669NTM

In the Matter of 2112 Honeywell Avenue LLC
Order, March 6, 2013
DEC Case No. PBS 2-310816NDK
Finally, these two Commissioner's Orders continue the DEC methodical efforts to clear the unregistered petroleum bulk storage ("PBS") tank docket. What is notable and instructive is that both of these Orders cite and rely on the staff's standard penalty matrix based on the duration of the unregistered period (absent aggravating factors) as follows:

0-2 yrs. unregistered  -   $5,000.00;
2-5 yrs.                    -    $7,500.00;
5 yrs. or more           -  $10,000.00.

Unforeseen Hurricane Sandy Impact, Car Storage Tears Up LI Pine Barrens

What does one do with approximately 30,000 storm-damaged cars that have been shipped to eastern Long Island for storage? Some get parked on the former Grumman plant runways, but many other are parked and left on open, environmentally-sensitive land thus creating a proverbial "mud hole" and ensuing environmental damage within the protected Pine Barrens area. NYSDEC is commencing enforcement against the property owners.

NYSDEC Penalizes Operator for Improper Emergency Operation of Air Pollution Source

NYSDEC Region 4 remains active in enforcing state and federal air pollution laws as demonstrated when a company's air control equipment exploded last fall due to improper operation. The operator agreed to pay an $112,500 fine under the as per an administrative Consent Order signed with the state Department of Environmental Conservation. The operator also agreed to DEC oversight in obtaining and installing new pollution control equipment for its chemical resin processing operation. $165,000 in civil penalties was suspended pending compliance with the Order. The underlying explosion was deemed by DEC to be due to a lack of knowledge about the facilities operations by its employees. Therefore, DEC also deemed that the operation without pollution controls was not due to an emergency and not justified.

NYSDEC Region 9 Enforcement Summary

Unfortunately, not all NYSDEC Regional offices offer this information in a convenient format. Region 9's enforcement summary can be found here.

The Susquehanna River Basin Commission Enforcement

The place name may evoke an old Abbott & Costello comedy routine, but the SRBC means serious business. New York's nascent yogurt industry, as well as other large quantity industrial water users, now have both state and SRBC regulation to adhere to (and potentially big penalties to worry about) depending on their location. Large quantity water usage without the requisite permits can be costly as a major yogurt manufacturer discovered when it was penalized $130,000.00, by the SRBC.


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.

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