By Michael J. Lesser, Environmental Section, NYSBA © 2013
Sewage, Sewage Everywhere
Despite previous enforcement and significant fines, aging sewage treatment infrastructure and lots of rain makes some sewage overflows seemingly inevitable. Once again, Rensselaer County is the culprit as described in this June 13, 2013, Albany Times Union story. But, in this case, observers from the Riverkeeper organization spotted the sewage violations on the Wyantskill River who in turn informed NYSDEC.
Given the severity of a previous administrative consent order, NYSDEC used a bit of prosecutorial discretion by deciding not to seek additional penalties for the unauthorized sewage discharges.
TCI Has to Do It Better
The NYSDEC ordered TCI to halt its operations because it lacked registration and two permits for solid waste handling and transportation. The transformer recycling company recently moved to the Port of Coeymans after losing its plant in Ghent, Columbia County, in a destructive fire last August 2012. As the plant handled PCBs, the fire left many apprehensive about the level of regulatory oversight over TCI's operations. By taking the extremely rare step of ordering a complete shutdown, NYSDEC has at least demonstrated that it has been keeping an eye on TCI and its operations.
Proposed Replacement of the 1891 Lacey Act
U.S. Senator Kirsten Gillibrand, a member of the Senate Environment & Public Works Committee, announced the introduction of the Invasive Fish and Wildlife Protection Act. The purpose of this legislation would be to stop the spread of invasive species and would also augment a new Federal, State and local agreement to fund two boat inspection and washing stations being funded through an EPA grant of $50,000.00 to the Lake George Park Commission. Lake George will now have a total of three voluntary decontamination sites at its busiest boat launches. In addition, the legislation would protect New York from the threat of invasive species by preventing the importation of potentially harmful species across state lines or into the United States by reforming the Lacey Act.
NY State Criminal Prosecutions
Waste Oil Abandoned in Brooklyn!: Attorney General's Office and NYSDEC Indict Waste Oil Parties (Kings Co. Sup.)
In a variation of a common criminal waste disposal scheme, a waste oil facility unable or unwilling to pay for the proper disposal of its waste oil employed parties to fill tanker trailers and then brazenly abandon these at random locations on the streets of Brooklyn. In the past, conspirators of this sort sought remote rural locations to abandon hazardous substances, but not this bunch. Rather than use legitimate vehicles to carry the waste oil, the principles retained a third party to steal tanker trailers from New Jersey. These trailers were then covertly filled with the waste oil at the storage facility and driven off to be abandoned. The non-environmental Penal Law indictments for these alleged outrageous activities were numerous. However, for environmental crime purposes, recall that abandonment qualifies as a release for invoking New York's hazardous substance release prohibitions. Therefore, Endangering Public Health, Safety or the Environment in the Second Degree (E.C.L. § 71-2713(3), a Class D Felony) and Endangering Public Health, Safety or the Environment in the Third Degree (E.C.L. § 71-2712(2), a Class E Felony) were the significant environmental crimes cited in the indictments.
Brooklyn Whistle Blower Sinks Illegal Sewer Disposal Scheme (Kings Co. Sup.)
Perhaps the most difficult environmental crime to detect is illegal dumping into the New York City Sewer System or "POTW.". This is due to the sheer volume of liquid in the system and instant dilution of the pollution beyond practical detection methods. Such unlawful disposals not only endanger water quality but can also damage the system and endanger human health depending on the nature of the water pollutants involved.
However, in this matter, a former employee of this manufacturing concern did come forward and revealed that the company was discharging wastes contaminated with heavy metals into the sewer system rather that incur the expense of treating these wastes before discharge.
The plea taken in Kings County Supreme Court led to the corporation to be sentenced to a conditional discharge and a $2.8 million settlement, including $1.5 million of unpaid corporate taxes, and four years of an extensive compliance, monitoring and remediation plan with the New York City Department of Environmental Protection and the NYSDEC.
Federal Criminal and Civil Prosecutions
Plating Polluter Pleads Guilty for Pollution in Sewers (WDNY)
The underlying facts in this federal water pollution case brought in the Western District of New York are similar to the state level Brooklyn case cited above. Both involved manufacturers that wished to avoid the costs of treating industrial wastes by pumping those wastes directly into the local sewer system. However, in this matter, the illegal water pollutants were most likely easier to isolate and detect in a small local sewer system which connected to Lake Ontario unlike the vast NYC sewer system in the Brooklyn case. The facility manager pleaded guilty and will be sentenced for violations of the federal Clean Water Act.
US v. Palmer (NDNY) - Clean Air Act Felony for Illegal Asbestos Abatement
Defendant pled guilty in U.S. District Court in Syracuse to a felony violation of the Clean Air Act, 42 U.S.C. § 7413(c), and improper disposal of asbestos wastes at a local landfill. Palmer, owner of a former industrial facility which contained more than two thousand feet of friable asbestos insulation on interior pipes, had directed unlicensed individuals to perform asbestos removal without taking precautions to mitigate exposure to this carcinogen without filing a notification to EPA or any other level of government. He is scheduled to be sentenced in October where he faces a maximum sentence of five years in prison and a $250,000 fine.
US v. Mazza (NDNY) - Illegal Asbestos Dumping
In this case, multiple defendants were sentenced in District Court in Utica for conspiring to violate the Clean Water Act, Superfund statute (CERCLA), and to defraud the United States by illegally dumping thousands of tons of asbestos-contaminated construction debris on a 28-acre piece of property on the Mohawk River in upstate New York. In addition, the Mazza defendants were also sentenced on charges of obstructing justice and making false statements to law enforcement.
The old Yiddish term "chutzpa" seems appropriate for these defendants because of the scheme they used to perpetuate and conceal their criminal disposals. The defendants conspired to fill in the entire property over the course of five years with pulverized construction and demolition debris that was processed at New Jersey solid waste management facilities and then transported to the disposal location in Frankfort, N.Y. The plot was uncovered after the defendants had already dumped at least 400 truckloads of debris at the site. Much of the material was contaminated by asbestos and then dumped in waterways and wetlands on or near the property. The plotters further sealed their fates by using a fraudulent NYSDEC permit complete with the forged name of a NYSDEC official to conceal their crimes.
The Defendants' sentences included:
- Dominick Mazza, 51 months in prison to be followed by three years of supervised release, payment of a $75,000 criminal fine and $492,000 in restitution.
- Mazza & Sons Inc., to pay a $100,000 criminal fine and $494,000 in restitution and cleanup costs, and imposed five years corporate probation.
The court also ordered:
- Mazza & Sons' recycling facility to fund and implement an environmental compliance plan to prevent future environmental violations at their Tinton Falls, N.J. operation, which is to be administered by a third-party auditor.
- Cross Nicastro (the property owner) imprisoned for 33 months with three years of supervised release and to pay $492,494 in restitution and a $25,000 criminal fine.
S. African Rock Lobster Smugglers ordered to Pay $22.5 Million in Restitution (SDNY)
The U.S. Attorney for the Southern District of New York sought and received a restitution order for the government of South Africa after a successful appeal to the U.S. Court of Appeals for the Second Circuit of the District Court's 2007 orders that restitution was not available for crimes prosecuted under the Lacey Act. The Lacey Act makes it a crime to, among other things, import into the U.S. any fish, wildlife, or plants taken in violation of state or foreign law. In this case, it was unimportant that the law broken was from South Africa. Previously, the defendants had also paid seven million dollars in restitution in that country.
Company Sued Over Fishy Shipments of Patagonian Toothfish (a/k/a Chilean Sea Bass) (NDNY)
The U.S. Attorney for the Northern District of New York settled with a Florida fish importer for violations of national and international regulations governing the importation and exportation of Chilean Sea Bass based upon the company's exportation, and subsequent re-importation, of 9,600 pounds of this popular fish dish. As part of the settlement, a Consent Decree which authorized civil penalties, forfeiture and permanent injunctive relief against the defendant was issued. Defendant will pay civil penalties totaling $35,000.00, forfeit $96,013.76 (the proceeds from the sale of the Toothfish which were exported and re-imported), and the company is enjoined from committing similar violations in the future. The international conservation community is deeply concerned with the enforcement of these various laws due to the vulnerability of this popular species to rapid population declines without proper monitoring.
NYSDEC Administrative Hearing Orders and Decisions
These administrative determinations represent the usual eclectic mix. However, in two unrelated cases these months' decisions do shed some light on the Commissioner's application of joint and severable liability where there are multiple liable respondents. Two older 2007 cases focused on dam safety have also reached dispositions.
In the Matter of the Village of Florida,
Town of Chester and County of Orange, Respondents
Decision and Commissioner's Order, May 23, 2013
DEC Case No. CO3-20070201-2
This administrative enforcement action, originally commenced in 2007, concerns the responsibility of municipalities for the safe maintenance of local dams and associated infrastructure under their control. NYSDEC staff alleged that the three municipal respondents: (i) failed to operate and maintain the Glenmere Lake Dam in a safe condition, in violation of Environmental Conservation Law (ECL) § 15-0507(1); and (ii) performed repairs on the dam without obtaining the required permits, in violation of ECL § 15-0503(1) and § 608.3 of title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York (6 NYCRR). The DEC had classified the dam as "Class C, High Hazard." The hearing record indicated that the dam's failure and the subsequent injury of people and property was possible.
The alleged violations were hardly sudden. NYSDEC had first noted violations as early as 1971, and continuously thereafter given the steady deterioration of the 19th century dam in question.
The Respondents claimed that they were not "owners" of the dam, and were therefore not responsible for inspecting or maintaining the dam or performing any of the other activities required by the relevant statute and regulations. But, based on the factual record, the Commissioner held that the Respondents were owners because ECL § 15-0507(1) broadly defines the "owner" of a dam as "any person or local public corporation who owns, erects, reconstructs, repairs, maintains or uses a dam or other structure which impounds waters."
The Commissioner also held that the liability of the three municipalities under ECL § 15-0507(1) was joint and severable even though the ECL is silent on that point of law. However, using the same analysis, joint and severable liability was found not to apply for individual violations of ECL § 15-0503(1) for unpermitted work on the dam.
Ultimately, the Commissioner ordered the repair of the dam and assessed civil penalties of $350,000 against the three respondents, broken down as follows:
- $330,000 assessed jointly and severally against respondents for their violations of ECL §15-0507(1);
- Of the $330,000, $30,000 shall be due and payable and $300,000 shall be suspended contingent upon respondents' compliance with the terms and conditions of the decision and order;
- $20,000 allocated and assessed for violations of ECL § 15-0503(1) and 6 NYCRR 608.3.
NYSDEC maintains an extensive webpage on New York's dam safety and inspection programs.
In the Matter of Jerome Muffler, et al.
Order, May 24, 2013
DEC Case No. CO2-20100615-26
In the Matter of Jerome Transmissions, et al.
Order, May 28, 2013
DEC Case No. CO2-20100615-17
In two related, but distinct and separate, administrative actions, the Commissioner issued stern Orders against two automobile inspection stations that deliberately used an unauthorized device to fraudulently issue a false passing emissions test as part of the motor vehicle inspection process in violation of ECL Article 19, specifically 6 NYCRR 217-4.2, as enforced under ECL § 71-2103(1). Such violations involve the manipulation of the on-board diagnostics systems (OBD) necessary to test modern vehicles. The record indicates that at the first facility (Jerome Muffler) Respondents collectively simulated false motor vehicle of record on 3,532 separate occasions between 2008 and 2010. In the second case (Jerome Transmission), the Respondents racked up another 900 false emission tests in roughly the same time period.
However, in assessing civil penalties in both cases, the Commissioner determined that the weight of the penalty should fall on the corporate entities as the holders of the DMV inspection permit. He further found that while the individual Respondents were liable, joint and severable liability did not apply to them and that the individual Respondent's penalties should be proportionate to the number of times they performed the fraudulent emissions test.
Civil penalties of $570,000, were assessed in the first case as follows:
- Respondent Jerome Muffler, $450,000;
- Respondent Almonte, 3,379 inspections, $114,000;
- Respondent Bermudez, 10 inspections, $1,000; and
- Respondent Ramos, 143 inspections, $5,000.
In the second case, civil penalties of $160,000 were assessed as follows:
- Respondent Jerome Transmissions Corp., $100,000;
- Respondent Almonte, 862 inspections, $57,000;
- Respondent Bermudez, 11 inspections, $1,000; and
- Respondent Ramos, 27 inspections, $2,000.
Oddly, the cases were not combined. The Commissioner held that as the violations in each case were contemporaneous but committed by two separate entities, the violations at one facility could not be used as a factor to enhance the penalty calculation at the other.
NYSDEC maintains a comprehensive webpage on vehicle air emission testing
In the Matter of 35-60 74th St. Realty
Order, June 4, 2013
DEC File No. R2-20120927-616
Once again, a Respondent has demonstrated the folly of defaulting on a Motion for a Order without Hearing (6 NYCRR Part 622.12) by NYSDEC staff based on its failure to comply with a previously entered NYSDEC administrative Order on Consent to correct oil storage tank violations. Not only did the Commissioner order payment of a previously suspended penalty, he also assessed an additional penalty of $37,500, which is the maximum penalty allowed for a single violation of ECL Article 17, as prescribed pursuant to ECL § 71-1929(1). The new violation was of course for the failure to comply with the terms of the first Order.
In the Matter of Berger,et al.
Decision and Order, June 17, 2013
DEC Case No. CO3-20070201-9
Here, the Commissioner is forced to address another case of Respondents' failure to properly maintain a Class "C" High Hazard Dam as required by various provisions of ECL Article 15. In this case, the deteriorating Honk Falls Dam spans Roundout Creek, a tributary of the Hudson River. As in the Village of Florida case described above, the Commissioner held that the various parties that used or owned land abutting the dam were indeed owners and therefore liable for the dam's expensive upkeep and permit requirements pursuant to ECL § 15-0507(1).
This Order and the underlying ALJ hearing report will be of particular interest to practitioners who need references and an in-depth analysis of the law as it relates to ownership of underwater lands. In particular, the language in a deed conveyance may also confer ownership of a dam for purposes of establishing liability for its maintenance under the ECL.
This Order is also interesting in that to direct Respondent's resources towards fixing the dam, the Commissioner assessed a comparatively modest total joint and severable civil penalty of $116,500, of which $30,000 was payable and the remaining $86,500, was suspended contingent upon Respondents' compliance with the terms and conditions of the decision and order. In an unusual reference, the Commissioner supported this position by citing the testimony of the DEC lead engineer who pontificated on the need to diverting the Respondent's assets from penalties towards fixing the dam. Helpful testimony if a Respondent can get it!
Giant Mosquitoes Invade Florida
As regular readers of these posts already know, I enjoy poking fun at our friends in Florida because of the odd environmental anomalies of that state. So, I am delighted to report that giant mosquitoes approximately 20 times larger than the usual kind are set to take over the sunshine state due to heavy rains. The flying nuisances, known as gallinippers, are similar in appearance to their smaller cousins except for being about the size of a quarter. They also deliver a painful bite. Buzz buzz!
Death Penalty for Polluters in China
I have heard of various tough approaches to environmental law enforcement but it goes without saying that this is certainly the ultimate deterrence. Polluters in China could soon face the death penalty after the authorities increased the courts' powers to punish firms and individuals who carry out serious environmental crimes. China already imposes the death sentence for economic and corruption crimes. It can only be a matter of time before the first environmental death sentence is handed down. We here at the Update will be watching for it with morbid fascination.
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.