NY Environmental Section Enforcement Update April 2013, #4
By Michael J. Lesser, Environmental Section, NYSBA © 2013
The Albany media has regularly reported on the ever-expanding local nanotech and computer chip industries and the economic benefits that follow. Until now, there has been virtually no reporting on the environmental issues raised by those industries. In an article dated April 16th, 2013, the Albany Times Union reported that several workers were injured and hospitalized moving a large computer chip manufacturing machine into a new building at the College of Nanoscale Science and Engineering (SUNY Albany) after hydrogen peroxide leaked from the equipment. A machine was shipped loaded with a solution of 30% hydrogen peroxide, a concentration far higher than the antiseptic form of the chemical many of us keep in our first aid kits and which can cause severe burns to the skin and lung irritation.
ECL Article 37 serves as the general authority for hazardous substance regulation. Furthermore, 6 NYCRR Part 597.2(b) Table 1, includes hydrogen peroxide on the list of New York hazardous substances and provides a reportable quantity. Finally 6 NYCRR Parts 595.2(a) and 595.3 provide hazardous substance spill reporting criteria and release reporting procedures. It is not clear from the news item whether these release reporting standards were implemented. However, it behooves counsel for nanotech clients to be aware of the enforcement implications of handling hazardous substances.
POTW Operators Must Report Sewage Discharges to NYSDEC
The new law, signed by Governor Andrew Cuomo on August 9, 2012, changes the requirements for reporting untreated or partially treated sewage discharges, also known as bypasses, from publicly owned treatment works and imposes new reporting requirements for publicly owned sewer systems ("POTW") and combined sewer overflows ("CSO"). It should be noted that NYSDEC has failed to meet the deadline for the promulgation of regulations to support the new law. In lieu of the regulations, NYSDEC will assist operators with questions or compliance until the regulations are in place. The Sewage Pollution Right to Know Act went into effect on May 1, 2013.
Attorney-General Eric Schneiderman Celebrates Earthday by Releasing Compilation of Recent Accomplishments
AG Schneiderman's office has provided a record of his environmental accomplishments for the past two years, which includes details about several significant enforcement accomplishments.
$5.5 Million Settlement Between U.S., New York, & GM Resolves Long Standing Natural Resource Damage Claims At Onondaga Lake Superfund
This is one of a number of related settlements that address bankruptcy claims regarding environmental releases from the old General Motors Corporation and related entities. Old GM formerly manufactured and assembled metal and plastic automobile parts at its Inland Fisher Guide facility, which was adjacent to a tributary of Onondaga Lake. USEPA's claims at the site were previously settled for roughly $39.2 million. Under the terms of this separate agreement, the settling governments will receive additional allowed claims in the total amount of $5.5 million to settle claims for damages to natural resources at the Onondaga Lake site. The U.S. Department of the Interior serves as joint natural resource trustee along with the State of New York and the Onondaga Nation. The NRD settlement will be allocated and distributed under a complex settlement formula.
NYSDEC Enters Administrative Consent Order with Hillcrest Industries
Under the terms of this NYSDEC Administrative Consent Order, Hillcrest Industries will fund an Environmental Benefit Project (EBP) in the Village of Attica and will undertake a number of pollution control measures for numerous violations of state environmental water, air and solid waste standards. The Order also requires Hillcrest to reduce facility emissions, comply with a remedial schedule, fund environmental monitoring services to be performed by a third party contractor and designate an employee as an on-site Environmental Compliance Officer. An additional $300,000 penalty was suspended based on future compliance with the Order. Hillcrest Industries manufactures abrasive blasting media and recycled glass material at its facility in the Village of Attica, Wyoming County.
The EBP includes improvements to the Village's pool and playground. A review of this Settlement and Order will be especially educational regarding the NYSDEC approach to multimedia violations. NYSDEC has made the Consent Order available on its website.
In a parallel USEPA enforcement case, the Respondent spent more than $1 million to cease and prevent deleterious air emissions.
NYSDEC CRIMINAL FISH & WILDLIFE ENFORCEMENT
While the sudden appearance of criminal deer hunting dispositions in early spring may seem odd, one must remember that the justice system is often catching up with investigations commenced and enforcement actions filed during the various late fall and early winter hunting seasons. Typical serious ECL criminal violations committed while hunting include discharging firearms at night or on or near roadways or near houses. On many occasions, these crimes occur while the suspect is using an illegal deer hunting technique known as "Deer Jacking" where the hunter uses a vehicle mounted searchlight to illuminate and freeze a deer in the darkness for an easy kill shot. The danger to anybody nearby is obvious.
Also included is a rare example of an illegal animal trapping spree. Reading the details of these investigations will give the reader a glimpse into the difficulties and dangers of investigating this important but often overlooked area of environmental enforcement.
April 26, 2013, Four Charged with Multiple Deer Violations in Otsego County
Four Otsego County men were ticketed with multiple deer hunting violations on for illegally killing eight deer including discharging a firearm across a roadway.
April 9, 2013, NYSDEC Investigation Leads to 54 Misdemeanor Charges in Chautauqua County Deer Jacking Case
NYSDEC Conservation Police charged a man with 46 ECL Misdemeanor violations and 8 Penal Law Misdemeanors including:
• Prohibited use of a weapon (4 counts)
• Reckless endangerment, Second degree (4 counts)
• Possessing a loaded firearm in a motor vehicle (4 counts)
• Taking deer while in a motor vehicle (4 counts)
• Taking a deer from a public highway (4 counts)
• Taking deer out of season (3 counts)
• Taking deer out of legal hunting hours (1 count)
• Illegal taking of a deer (4 counts)
• Hunting deer with an artificial light (4 counts)
• Discharging a firearm over a road (4 counts)
• Discharging a firearm within 500 feet of a school property (1 count)
• Discharging a firearm within 500 feet of a factory (1 count)
In addition to being charged with misdemeanors of Environmental Conservation Law, charges also include reckless endangerment charges for shooting on public property and within a residential area. Each misdemeanor carries a jail term of up to one year and fines range from $200 to 2,000 per charge.
March 20, 2013, Man Pleads Guilty to Numerous Counts of Illegal Trapping
A Franklin County man pleaded guilty last week to 31 violations of Environmental Conservation Law related to illegal trapping. Offenses included unlawfully setting 15 snares for coyote, multiple counts for unlawful use of body gripping traps on land and numerous related violations. The accused pleaded guilty to all charges and was ordered to pay total of $3,875 in fines and surcharges.
NYSDEC ADMINISTRATIVE DECISIONS RULINGS & ORDERS
In the Matter of Stasack, William and Stephen Stasack,
Ruling of the Chief ALJ on Motion of Summary Judgment - April 25, 2013
DEC File No. R4-2003-1023-117
The Stasack Ruling is important for its analysis of some unresolved issues that arise from time-to-time to vex practitioners defending NYSDEC Respondents. These include:
1. The definition of a navigable water way for the purposes of enforcing violations of Article 15 freshwater waterway regulatory procedures as per ECL Section 15-1505;
2. The duality of Article 71, of the ECL which allows for parallel criminal and administrative prosecutions by NYSDEC for the same underlying violation;
3. An analysis of Summary Judgment standards considered by the NYSDEC Office of Hearings and Mediation Services.
This long environmental saga commenced with the Respondent's placement of fill materials in a relatively small and allegedly isolated pond with limited public access. Was the pond a navigable waterway for purposes of enforcing the ECL? Respondent's various motions to determine otherwise were denied and this matter plods on.
However, it behooves a party that wants to improve any waterfront property to check with DEC before improvements begin. A costly and lengthy litigation may be avoided.
In the Matter of BCD Tire Chip Manufacturing Inc.,
Decision and Order, March 26, 2013
DEC File No. R4-2011-0505-53
In this administrative enforcement proceeding, NYSDEC and Respondent tangled over an esoteric, but important, environmental issue regarding what exactly constitutes waste tires in an amount that triggers the ECL regulatory threshold. The Respondent allegedly stored 1,000 or more waste tires without a permit in the form of tire derived aggregate ("TDA") in violation of 6 NYCRR 360-13.1(b). The Commissioner held that TDA does constitute waste tires under the law and Respondent was therefore required to obtain a permit for its facility. Respondent was penalized $31,000 with $10,000, suspended.
WEIRD BUT TRUE ENVIRONMENTAL NEWS
Giant Snails Invade Florida! Invasive Species Slimes Locals!
Between climate change and careless commerce, invasive species are a growth area for environmental regulations and related enforcement. In a campaign both serious and somewhat unbelievable, South Florida residents are being warned to be on the lookout for one of the world's most destructive invasive species: the giant African land snail. The mammoth mollusks can grow to be rat-sized and were first spotted in Florida in 2011. More than 1,000 are being caught each week in Miami-Dade County as the snails relentlessly gnaw through stucco houses and most known species of plants. Experts recently gathered for a Giant African Land Snail Science Symposium to find solutions (now that would make a great T-shirt).
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.