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NY Environmental Section Enforcement Update July 2013, #7


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


Enforcement News

Former Nuke Plant Manager Charged with False filings

Charges were filed by the SDNY US Attorney's office against a former chemistry manager for the Indian Point nuclear power facility located in Peekskill. Specifically, he allegedly committed deliberate misconduct by filing phony test results about contamination in diesel fuel for the facility's power emergency generators in an attempt to hide the true results from the Nuclear Regulatory Commission ("NRC"). He also allegedly falsified a written report of the results prior to an NRC's inspection of the facility and then later admitted that he falsified the test results so Indian Point would not have to shut down. The NRC said that he acted alone. The impact of this charge on the current licensing process for the facility is not known at this time.


Revised Government-LaFarge Settlement Sets Stricter Limits and Funds Local Environmental Projects

Attorney General Schneiderman, DEC Commissioner Joe Martens, and federal officials announced an amended settlement with Albany County cement plant operator Lafarge North America. In exchange for an additional 18 months for Lafarge to build a new kiln with advanced air pollution controls, the settlement sets stricter annual limits on allowable emissions of nitrogen oxides (NOx) and sulfur dioxide (SO2). The revised settlement also commits Lafarge to fund $1.5 million in projects to further reduce pollution emissions at the plant and in the surrounding communities.

A separate agreement between New York State and LaFarge limits mercury emissions to levels 25% lower than the plant's current air pollution control permit.


DEC Region 7 ECO Criminal Cases Now on Line

The Syracuse Post Standard has started a new feature in cooperation with NYSDEC Division of Law Enforcement to publish dispositions for prosecutions generated by the NYSDEC Environment Conservation Officers ("ECO") for the Department's Region 7 based in Syracuse. What is most notable at first glance is that the 21st century court surcharges are often more than the early 20th century fines prescribed for current offenses. Many of these ECL criminal fines have been unchanged since the 1930's.


Adirondack Park Agency ("ADA") Celebrates 40th Anniversary

The Adirondack Park Agency (the "APA") maintains an active administrative enforcement docket related to the regulation of private land use and development in the Park. This significant state environmental management agency is celebrating its 40th anniversary this year.


NY Bans Shark Fin Trade

Despite the endless bad publicity heaped on sharks (Note, the spate of man eating shark movies on the SyFy cable channel including Ghost Shark, Sharknado, and my favorite, Sharktopus, New York State is banning the sale, possession and trade of shark fins. http://public.leginfo.state.ny.us/menugetf.cgi. An estimated 73 million sharks are killed worldwide to meet market demand. The fins harvested in this maritime slaughter are mainly used in a soup popular in traditional Asian cuisine. Under current law, it is already illegal to "fin" a shark in New York waters, a practice where a shark is caught, its fin removed, and then returned to open waters to die.


Billions of Gallons of Sewage Released in NY Annually

As previously reported by the Update, the state's overused, over-stressed and over-the-hill sewage and storm water runoff systems are still releasing large amounts of untreated sewage, especially after heavy rains. This is a statewide problem, as demonstrated when a July storm took the Niagara Falls sewage treatment plant offline, sending more than 100 million gallons of wastewater into the Niagara River. A new state sewage spill reporting law that was effective on May 1, 2013 was intended to address the issue, but has experienced problems of its own in attempts to implement it.


Enforcement People in the News

Governor Cuomo's office announced several high level appointments in the health field including that of Courtney Burke to serve as Deputy Secretary for Health.


State Criminal and Civil Enforcement

ECOs Arrest Lead To Felony Charges Against Illegal Horseshoe Crabbers

Add horseshoe crabs to the list of those species threatened due in part to illegal poaching. In a night time investigation, the NYSDEC apprehended and charged three Suffolk County men with illegally harvesting almost 1,500 horseshoe crabs from an inlet of Great South Bay. The commercial license limit is only for thirty crabs. The seized horseshoe crabs were released safely back into Great South Bay. The three were charged with E-Felonies for their alleged misdeeds which allows for sentences of 1 to 4 years in prison and criminal fines of up to six figures based on the numbers of horseshoe crabs actually taken.

Additional information about this fascinating "living fossil" is available on the DEC's website.


Man Kills Bear (and Pays!)

NYS Department of Environmental Conservation Police charged defendant with a criminal misdemeanor for the out-of-season shooting and killing of a 150 pound black bear he saw walking in his backyard in Greene County. After some CSI-style investigation, DEC determined that the bear was not threatening and was shot while moving away from the shooter. But, should the shooter-homeowner be burdened with a criminal conviction when it was obvious that he did not intend to poach the bear for profit? Luckily for the shooter, the DEC and the court agreed to use a legal option known as the Civil Compromise, ECL § 71-0519, which is applicable to those ECL sections that derive from the pre-1970 Conservation Law. This section of the ECL allows the parties to enter into a civil compromise and dismiss the criminal charges. However, the bear shooter did pay a $752.50 penalty in Cairo Town Court for his ursine run in. But the simple lesson is that, unless threatened or licensed, it is not a good idea to shoot a bear. Instead, call the local police and the proper state or local personnel will advise or respond.


Federal Enforcement

Environmental Inventor and Developer Pleads Guilty in $5 Million Dollar Fraud Scheme (EDNY)

This is a cautionary tale for all. One cannot work in the environmental business very long without running into the promise of a scientific or engineering miracle that purports to easily alleviate an otherwise impossible or expensive environmental problem. As the old cliché goes, if it is too good to be true, then, well you know the rest. Here, the fraudster in question pleaded guilty to wire fraud for falsely taking $5 million dollars from an investor for his so called "Clean Air Valve." According to the criminal complaint, the fraud victim was enticed by the promise of millions in profits from the device. Apparently, the only thing cleaned was his bank account.


Bilge Waste Releases Pollute NY Area Waterways (NDNY)

This case involves an old problem that state and federal regulators have been battling since the onset of environmental enforcement: deliberate bilge releases by transient ships. In addition to the release of actual pollutants, bilge pumping by international ships also is a primary source for introduction of destructive invasive species, such as the zebra mussel. Here, shipping companies located in Germany and Cyprus were sentenced in Federal District Court to pay a $10.4 million combined penalty for felony obstruction of justice charges and violating the Act to Prevent Pollution from Ships ("APPS"). Specifically, the defendants deliberately concealed pollution by falsifying logs and other records.


NYSDEC Administrative Enforcement Actions

In the Matter of New Power Muffler Inc., Miguel Marte, Johann Gonzalez, Reynaldo A. Medina and Jovanny F. Ortega, Respondents
Order, July 15, 2013
DEC Case No. CO2-20100615-23

The Commissioner assessed six figure penalties against Respondents for performing more than 2,500 phony onboard diagnostic ("OBD") II vehicle inspections with noncompliant equipment and procedures in violation of 6 NYCRR 217-4.2. OBD inspections, when properly conducted, are designed to monitor systems responsible for controlling air emissions.

However, in a setback to responsible corporate officer liability doctrine, the Commissioner also held that the Department's staff did not provide evidence establishing the decision making authority of the corporation's principal as a basis for his liability for the corporation's actions. Therefore, the corporation's principal was not personally responsible for noncompliant inspections performed by the corporation that he did not personally perform.


In the Matter of U.S. Energy Development Corporation, Respondent
Ruling of the Chief ALJ on Motion to Stay Proceedings, July 10, 2013
DEC File No. R9-20111104-150 July 10, 2013

In a Ruling that may have great significance in enforcement actions against natural gas drillers, the Department held that it would not grant a Motion to Stay administrative proceedings pending the disposition of a Respondent's appeal of a dismissal of an Article 78 Petition originally commenced to seek to discontinue the Department's the same underlying administrative enforcement action.

Here, water pollutants released from Respondent's natural gas drilling facility in Pennsylvania entered New York waterways in Allegany County. Respondent and the DEC then entered into an Order on Consent which allowed for mitigation and prevention of future releases, but to no avail, as the releases allegedly continued in violation of the Order. DEC then commenced an administrative action seeking penalties and enforcement for violations of the Order. The Respondent then commenced an Article 78 Petition alleging that the NYSDEC had overstepped its jurisdiction. In turn, that Petition was dismissed in Supreme Court and Respondent then moved for a stay of the administrative action pending the perfection and disposition of an appeal seeking to overturn the Order of the Supreme Court.

The Chief ALJ denied the Motion for a Stay relying on CPLR 2201 and relevant case law. The Chief ALJ also held that the Respondent failed to establish either that an appellate decision was imminent or that any such decision would likely expedite the present administrative proceeding. He also noted that Respondent failed to demonstrate any undue prejudice by continuing the administrative enforcement proceeding.


In the Matter of Quadrozzi Concrete Corp. Respondent
Order, July 8, 2013
DEC Case No: CO2-20121011-4

In this case we learn that the going administrative penalty in a default for the failure to file an annual DMR (Discharge Monitoring Report) and an ACR (Annual Certified Report) as required by the Department's SPDES Multi-Sector General Permit for Stormwater Discharges Associated with Industrial Activity, Permit is $10,000, for violations of both the permit and 6 NYCRR 750-2.5(e).

However, the Commissioner did note that though the Respondent corporate permittee dissolved subsequent to the failure to file, it was still liable for its pre-dissolution transgressions violations citing the Business Corporation Law ["BCL"] §§ 1006[a][4] & [b] and 1009 and previous Commissioner's Decisions. These prior decisions held that a dissolved corporation continues its corporate existence for purposes of paying liabilities or obligations, for being sued, and to participate in administrative proceedings in its corporate name.


In the Matter of Susan E. Gardner, LLC, Respondent
Order, July 2, 2013 (PDF Version - 296.18 KB)
DEC Case No. R4-2008-1110-157

Here, Respondent was found to have excavated and changed the course of a tributary of Kinderhook Creek in Rensselaer County without a permit in violation of ECL § 15-0501 and 6 NYCRR 608.2. Respondent's unlawful activities also created a pond that impacted the flow of the tributary into the Creek and the quality of the trout habitat of the stream. Respondent had argued that the pond had been present on the location for "generations," but before and after excavation aerial photographs of the location depicted the sudden appearance of a much larger the pond due to the unauthorized damming of the waterway in question.

Interestingly, DEC staff were apparently more interested in restoration (and removing the ersatz multi-generational pond) than seeking a stiff penalty. Despite the potential calculation of a six figure penalty, staff sought a penalty of only $6,400.00, and that Respondent develop an approvable restoration plan. Furthermore, the Commissioner agreed with the ALJ recommendation and modified the civil penalty by suspending $4,000 of that amount, contingent upon respondent's compliance with the restoration requirements.


In the Matter of Airport Auto Wrecking, Respondent
Ruling on Motion to Amend the Complaint - June 27, 2013
DEC Case No. CO9-20130325-01

Once again, the folly of ignoring a NYSDEC administrative complaint and associated motion practice is demonstrated with a new twist by this matter. In this case, Respondent's failure to respond to a Motion to Amend allowed DEC central office staff and Region 9 staff to coordinate and combine parallel administrative enforcement cases and seek higher penalties. Region 9 staff had inspected Respondent's auto dismantler in October 2012 and allegedly discovered various environmentally serious operating violations. However, before they could file their complaint, central office staff beat Region 9 to the courthouse by commencing an action in March 2013 against the same party for a less serious filing failure.

The Department's Uniform Enforcement Hearing Procedures (6 NYCRR part 622 [Part 622]), provide that a party may amend its pleading once without permission at any time before the period for responding expires (see 6 NYCRR 622.5[a]). Thereafter, either party may amend its pleading at any time prior to the final decision of the Commissioner by permission of the ALJ or the Commissioner, and absent prejudice to the ability of any other party to respond (see 6 NYCRR 622.5[b]). When no ALJ has been assigned to the case, the motion is made to the Chief ALJ ( =see 6 NYCRR 622.6[c][1]).

In this case, Respondent made no response to the Motion to Amend (or, it seems, to the original complaint) and the Chief ALJ granted the Motion. Thus, Respondent found itself facing a more serious set of charges and higher penalties in the amended complaint. Was Respondent prejudiced or given an advantage by having to face the combined charges of the new amended complaint? We will not know until this matter reaches a disposition. Arguably however, Respondent would have had more options if it had responded to its mail.


Weird News

Pirates Invade Brooklyn! (pirate radio operators, that is)

The Kings County District Attorney arrested two men for allegedly sending Unauthorized Radio Transmissions, a class-A misdemeanor. Unauthorized Radio Transmission is knowingly making a radio transmission on a radio frequency assigned and licensed by the Federal Communications Commission ("FCC") for use by AM and FM radio stations without authorization or having first obtained a license from the FCC. Bluntly, the defendants operated an unlicensed pirate radio station on the FM frequency band usually occupied by commercial radio stations. What intrigues most however, is that, without much fanfare, the state recently enacted a law which essentially criminalized federal communications law violations. The new law, Penal Law § 190.72 (enacted in 2011, effective in 2012) bans unauthorized radio transmission on the standard AM/FM commercial frequencies.

Unlicensed "Pirate Radio" has been part of broadcasting since the first federally licensed broadcasters squawked onto the airwaves in the early 1920s. So, why pass a state law now and why should the DA expend resources to prosecute what has always been a federal crime for violations of a federal regulatory scheme? Well, part of the answer is that NY leads all other states in FCC enforcement against pirate stations with 330 actions taken since 2003.

But still, does that justify state enforcement in this area of federal regulatory practice? You be the judge.

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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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This page contains a single entry from the blog posted on September 9, 2013 6:50 PM.

The previous post in this blog was NY Environmental Section Enforcement Update June 2013, #6.

The next post in this blog is NY Environmental Section Enforcement Update August 2013, #8.

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