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June 2, 2013

NY Environmental Section Enforcement Update April 2013, #4

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


Nanotech's Mega-Leak

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.


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.


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. 


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).

Giant snails have not attacked New York yet, but for a quick refresher on New York's aquatic and other invasive species enforcement efforts, check the NYSDEC website.


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.

June 30, 2013

NY Environmental Section Enforcement Update May 2013, #5

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

Enforcement News

Evolution of an Asbestos Enforcement Case

Asbestos regulation has always been one of the most ubiquitous yet confusing areas of environmental enforcement because oversight and enforcement cut across a number of federal, state and local regulatory schemes. These various schemes can address asbestos as a waste product, a hazardous substance, an air pollutant or a water pollutant (or all of the above). Furthermore, asbestos regulation can arise from abatement during construction or demolition, transportation or unlawful and unreported disposals and releases. A recent Times Union story infers many of the above issues and Envirosphere will continue to follow this story as it develops.

To start deciphering the mysteries of asbestos regulation see the NYSDEC asbestos webpage and then follow the related links to other federal, state and local agencies.

A.G. Schneiderman Launches New Animal Protection Initiative

Attorney General Eric T. Schneiderman has commenced a new Animal Protection Initiative aimed at shutting down criminal animal fighting rings, ensuring compliance with New York State's Pet Lemon Law and charging those who abuse or neglect animals. The new initiative will use civil and criminal remedies to target allegations of animal cruelty and unscrupulous sales of pets and other animals.

The Initiative will employ the OAG's Regional Offices, the Consumer Fraud Bureau, the Criminal Prosecutions Bureau, the Organized Crime Task Force and the Investigations Bureau.

Enforcement People in the News

A.G. Schneiderman Appoints New Executive to Oversee Environmental Protection

Attorney General Eric T. Schneiderman appointed Alvin L. Bragg, Jr. to serve as Executive Deputy Attorney General for Social Justice. He will oversee six bureaus, including Charities, Labor, Civil Rights, Tobacco Compliance, Healthcare and Environmental Protection. Mr. Bragg was formerly an Assistant United States Attorney in the United States Attorney's Office in New York's Southern District where he investigated and prosecuted white collar and street crimes. He also served with the New York City Council as the Chief of Litigation and Investigations.

Assistant Attorney General Ignacia S. Moreno Departs from the U.S Department of Justice

Ignacia S. Moreno, Assistant Attorney General of the Environment and Natural Resources Division, will be leaving the DOJ in June 2013. Attorney General Eric Holder lauded Ms. Moreno for her Division's many record setting accomplishments under her tenure.

Federal Enforcement News

U.S. Attorney for NDNY Cracks Down on Power Wash Runoff

The indicted parties in this matter are principles of a company that engaged in hydro-demolition. This is a procedure that uses high pressure water to remove concrete from buildings during demolition. However, the waste runoff generated by the hydro-demolition process can consist of a slurry of high PH industrial waste including concrete wastes.

Unfortunately, this toxic slurry was allegedly released from a Binghamton area demolition site into the nearby Susquehanna River. In turn, this led to multiple felony indictments for discharging untreated industrial waste-water from a hydro-demolition process without a permit in violation of the Clean Water Act. Several federal, state and local agencies collaborated in the investigation.

Hydro-demolition can now be added to the list of industrial practices likely to need regulatory supervision under the CWA and related state laws.

NYC Department of Environmental Protection News

NYCDEP Takes On Idling Vehicles

The NYC Department of Environmental Protection commenced a crackdown on vehicle idling near schools and in neighborhoods with high numbers of trucks and buses. DEP inspectors will begin targeted enforcement of Local Law 5, which was enacted in 2009 and limits idling in school zones to one minute. Drivers observed illegally idling will be issued a warning for a first offense and a $350 fine for subsequent offenses.

NYSDEC's state idling diesel regulations provide a good comparison.

NYCDEP Requires Dry Cleaners to Disclose Chemicals

The New York City Department of Environmental Protection (DEP) announced that dry cleaners will be required to post the primary chemicals used in the dry cleaning process. The approximately 1,400 dry cleaners in New York City will be required to list the chemicals and a link to information about their health effects beginning in February, 2014. The DEP has created a template of the disclosure form.

Most dry cleaners use perchloroethylene or "perc," which is regulated by Federal, State, and City governments as exposure to perc vapor can have negative health effects. Non perc alternatives must also be disclosed. Dry cleaners will have to fill out and print the applicable forms from the DEP website and post these in their business. The draft form for perc dry cleaners and non-perc dry cleaners have been made available.

NYSDEC Consent Orders, Administrative Orders and Rulings

In the Matter of Pile Foundation Construction Company Inc., et al.
Commissioner's Order, May 17, 2013
DEC File No. R2-20090406-241

The good news for Respondents in this DEC Region 2 water pollution-wetlands case was that they were found not liable for certain compliance schedule violations arising from the Department's enforcement of an earlier 2009 Order on Consent. The bad news however was that they were found jointly and severally liable for a civil penalty of $500,000.00 (partially suspended).

The trend that stands out in this matter is the Department's expanding use of the administrative Motion for an Order without Hearing (6 NYCRR 622.12)  to prosecute major violations of existing administrative Orders on Consent. In past years, the practice was for NYSDEC to refer such violations to the Environmental Protection Bureau of the Attorney General's Office which would then commence a civil enforcement action in state supreme court to enforce the terms of the underlying Order. Here, rather than wait for a court determination, the NYSDEC has moved forward administratively and added hefty civil penalties for violations of the Order to "encourage" compliance.

In the Matter of Beach
Administrative Ruling, May 3, 2013
DEC Case Number: R5-20121024-2023

Unlike the Pile Order above, here the Department's staff overreached with their Motion for a Part 622.12 Order without Hearing while trying to address what appears to be a complicated state land trespassing and real property law case. Apparently, there were too many unresolvable substantive issues and the summary motion was denied. However, pursuant to 6 NYCRR 622.12(e), staff's motion papers and respondent's responsive papers were deemed to be the complaint and answer, respectively, for the purposes of this proceeding. In an unusual but telling "suggestion" the parties were reminded that independent mediation services are available and encouraged through the Office of Hearings and Mediation Services.

While not often utilized, the NYSDEC Hearing's Office provides independent mediation services using trained (and free) mediators upon request. For more information about this service, contact the NYSDEC Office of Hearings and Mediation Services.

Weird But True News (Or, Did They Really Do That?)

US v. Wal-Mart

$110 million in total criminal fines in multiple jurisdictions is enough to get this blogger's attention even though this criminal case evolved outside of New York. The fines and compliance costs are especially staggering for a case that did not involve a massive oil spill or other traditional environmental quality violation. Simply put, Wal-Mart illegally mishandled, released and disposed of the garden chemicals routinely stored and sold via the lawn centers at its numerous retail locations.

Growing up deep in Long Island's suburbia, I can recall the rather casual garden center operations of the time. These places were sloppy at best with broken bags of fertilizers, herbicides and other nasty stuff spread all over. Cleanup was an after-thought. And when it rained, the mess ran off to groundwater (not storm sewers) and eventually to Great South Bay. So, I was surprised to learn that Wal-Mart thought that it was still operating by 1960's regulatory standards (and that state and federal regulators would not notice).

In any event, fertilizer and garden chemical handling are now worthy of a distinct regulatory oversight program. For more information on the state requirements for garden retailers, see New York's relatively new "Runoff Law" ECL Article 17, Title 21, the FAQ on Phosphates,  and the impact on commercial pesticide applicators are also available online.


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.

About June 2013

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

May 2013 is the previous archive.

August 2013 is the next archive.

Many more can be found on the main index page or by looking through the archives.