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NY Environmental Enforcement Update September 2013, #9


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

Environmental Enforcement News

$5 Billion Environmental Bond Act Backed by Sen. Mark Grisanti and Assem. Robert Sweeney

Sen. Mark Grisanti and Assem. Robert Sweeney, the Environment Committee Chairs of the NYS Legislature, and a host of others endorsed a proposed new state environmental bond act. The Act would generally address a number of categories including infrastructure and storm damage projects. But, as in previous bond acts (1986 and 1996) the exact projects and funding are to be named later.

However, the proposed Bond Act first must go before the voters in 2014 at the earliest. A bill to do that has been introduced for the 2014 legislative session (A8121) along with a Sponsor's Memorandum that may answer (or create) more questions about this proposal.

Hopefully, if passed, some of this money will be directed to the state's depleted regulatory enforcement staff (see item below). From personal experience, previous bond acts have funded additional NYSDEC staff.


NY Environmental Advocates Issue Provocative Report on NYSDEC Enforcement Decline

The Report documents the steady decline in certain New York State Department of Environmental Conservation (DEC) enforcement metrics (inspections, violations noted, etc.) due to systemic staff shortages. In short, as the Report states, the agency is doing "less with less." It is no secret that the agency has endured an approximate 25% overall cut in staff positions over the past five to ten years. Therefore, regardless of the accuracy of the particulars, this Report and its conclusions are certainly no surprise to anybody that follows these matters. If passed, perhaps some of the five billion dollars from the proposed Bond Act (see item above) can be used to hire new DEC staff.


NYSDEC Proposes Liquefied Natural Gas Regulations

In a portent of things to come, the DEC will hold a hearing and solicit public comment on proposed regulations for liquefied natural gas (LNG) facilities. This proposal arrives in the midst of a growing controversy about a proposed LNG terminal off-shore of Long Island. The hearing is scheduled for October 30, 2013 with comments accepted until November 4th.

Note, NY had previously rejected the proposed Broadwater LNG Terminal in 2008 which was to have been located in Long Island Sound.

Historically, New York had maintained a moratorium on these facilities between 1973 and 1999, following a devastating 40 fatality accident in Staten Island back in 1973.


Greenpoint Grants Available from 2011 Exxon-Mobil Enforcement Settlement Fund

The Greenpoint Community Environmental Fund ("GCEF") is seeking viable community projects to take advantage of the $19.5 million fund was established with money paid by ExxonMobil in a 2011 settlement with New York State. The fund was a benefit of the related settlement related to the huge oil spill that spread under large parts of Greenpoint, Brooklyn. The settlement requires the company to fully clean up the spill and pay $19.5 million to fund local environmental benefit projects.

The GCEF is administered by the AG's Environmental Protection Bureau and the NYSDEC, in conjunction with a joint partnership of the Greenpoint-based North Brooklyn Development Corporation and the National Fish and Wildlife Foundation.


Adirondack Park Agency (APA) August Enforcement Update

For those that follow this lesser known, but locally important, enforcement niche, the August 2013 report is available via the APA website.


Carnival Cruise Settlement Sets New Emission Standards for Cruise Fleet

In a move that will certainly impact New York coastal waters, the U.S. Environmental Protection Agency (EPA) and Coast Guard have reached an agreement in principle with Carnival Corporation to develop advanced emission control technology. Carnival will develop and install a new exhaust gas cleaning system on up to 32 ships over the next three years. These ships are to be used in the North American and U.S. Caribbean Emission Control Areas (ECA) to create zones where ships reduce harmful air pollution emissions including SOx and particulates.


So Cal. Chain Drugstores Pay Up for Dumping Toxics! Is New York Next?

This non-local item is another example of the growing enforcement trend involving nontraditional retail targets. Here, a group of local Southern California District Attorneys commenced civil actions against a number of national drugstore chains for various hazardous substance and waste handling and disposal violations at their numerous locations. These violations involved products such as paints, pesticides, automotive chemicals and house hold cleaning products. Rite Aid paid $12.3 million in fines to the counties involved.

Previously, the Walgreen Co. had paid a 14 million dollar settlement. Are New York's drug stores next?


Is there a Boat Sewage Discharge Ban in Lake Erie's Future?

To dump, or not to dump? That is the question! USEPA continues to solicit comments. NY has already petitioned the USEPA to make the NY portion of the Lake "discharge free."


Rotting Grass - A New and Potentially Dangerous Water Pollution Source?

This item almost went straight to the Weird News section, but this is a new and very serious environmental and public health threat. Long Island, with its sole source aquifers, is especially vulnerable. The culprits appear to be commercial composting facilities which release manganese into groundwater at levels far in excess of the applicable state water quality standards for groundwater. See a July 2013 assessment report focused on a Yaphank composter for particulars.


Enforcement People in the News

Gov. Appoints Jon Kaiman as New L.I. Storm Recovery Chief

Former North Hempstead Town Supervisor Jon Kaiman assumed a new state storm-recovery position as the special adviser for Long Island storm recovery to Governor Cuomo. The appointment was first announced in July.


Federal Criminal Enforcement

Angry Man Poisons Hospital!

In U.S. v. Kimber (NDNY)
, the defendant was sentenced for using the deadly hazardous substance mercury as a weapon and for tampering with a consumer product. He was sentenced to 14 years in prison, 5 years supervised release thereafter, forfeiture of his home and car which were used to store the mercury, and more than $200k in restitution to the Albany Medical Center. At sentencing the defendant admitted depositing this heavy metal at various times and in various areas of the hospital, including in cafeteria food products. Mercury is highly toxic upon exposure via inhalation or contact. Kimber sought to retaliate for what he thought were high and unfair hospital bills. As a pharmacist, he was well-aware of the dangers of mercury and where to purchase it.


Explosive Situation in Webster NY

In U.S, v. Maracle Finishing et al. (WDNY), the defendants worked with phosphorus and chromium chemicals used in the metal and powder production industry. The facility's drain and storage system connected to an outside sewer line which ultimately led to the local Publicly Owned Treatment Works (POTW) and then to Lake Ontario. The company's POTW permit did not allow for the discharge of any industrial wastes into that system. The discharged chemicals were also highly explosive and flammable.

The defendant corporation was sentenced to three years of probation and was ordered to pay a $10,000 fine, while the company's General Manager was placed on probation for three years, ordered to pay a $4,000 fine, and ordered to complete 80 hours of community service. The President of the company was also ordered to implement a company-wide environmental compliance program.


Another Alleged Rhino Crime!

An individual was charged in EDNY for false labeling in connection with his alleged role in the international smuggling of rhinoceros horns in violation of the Lacey Act. "Operation Crash" is an initiative to investigate and prosecute those involved in the black market trade in endangered rhinoceros horns. The Defendant is alleged to have fraudulently purchased a set of black rhinoceros horns in Texas and then traveled to New York with a falsified document where he sold the horns for $50,000.


NY Munis, Take Note! Columbia, S.C. Settles and Upgrades Sewer System

While this is not a local case, it should serve as a cautionary tale regarding USEPA enforcement for NY municipalities that are struggling to maintain and upgrade local sewer systems. In this matter, the City of Columbia, S.C. was ordered by USEPA to implement extensive improvements at an estimated cost of $750 million.


Safeway Supermarket Gets Zapped for Ozone Depleting Emissions

Huh? The nearest Safeway is in Delaware. But, here we see yet another example of non-traditional sector enforcement by USEPA that may be worth noting in NY. For violations of the Clean Air Act (CAA), the Safeway grocery store chain will pay a $600,000 civil penalty and implement a plan to reduce its emissions of ozone-depleting substances from refrigeration equipment at 659 of its stores nationwide at an approximate cost of $4.1 million.


NYSDEC Administrative Enforcement

In the Matter of Frisina, Kyle M.
Assistant Commissioner Decision, September 12, 2013
DEC Shellfish Permit No. 24333

This decision provides a rare glimpse into the world of fish and wildlife license revocations. The Petitioner here applied for the reinstatement of his shellfish digger's permit (clamming license), one of the requirements for harvesting commercial shellfish. Previously, the permit had been revoked by NYSDEC staff following a conviction for unsafely taking shellfish from uncertified lands (on three separate occasions within a five-year period) in violation of ECL § 13-0309 of the Environmental Conservation Law (ECL). ECL § 71-0927(1) further provides that any person convicted of violating ECL §13-0309(1)(a) two or more times within five years shall have their permit revoked and shall not be re-permitted for a period of at least five years thereafter. Furthermore, ECL § 71-0927(4), makes the revocations automatic upon the second conviction without a hearing.

However, ECL § 71-0927(6) allows a party to apply to the Commissioner for reinstatement of the permit upon such conditions as are determined to be appropriate and necessary to protect public health and natural resources of the State. Despite the Petitioner's pleas and other evidence, the Assistant Commissioner remained unconvinced about the Petitioner's veracity and denied the application.


In the Matter of 234-250 Andrew St. LLC - Report and Recommendation,
September 5, 2013
DEC Index # B8-0692-05-04 Site # C828127

In another matter that rarely reaches the Office of Hearings, an applicant seeks to invoke the "Formal Dispute Resolution" (FDR) provision of a Brownfield Cleanup Agreement (BCA) entered with the NYSDEC to retain the statutory benefits of the state's Brownfield Cleanup Program (BCP). Here, the ALJ is providing a decision to the NYSDEC Director of Environmental Remediation as to whether to proceed as the designated FDR presiding hearing official. The ALJ recommended that the Applicant had missed the window of opportunity under the terms of the BCA to file for FDR and was therefore barred from invoking that privilege.

Previously, the Applicant and NYSDEC staff had entered into informal dispute resolution which, if unsuccessful, allowed for the FDR hearing at issue but only for thirty days after the conclusion of the informal period. But, the ALJ noted that the Applicant waited approximately six months to request the FDR and only did so after the NYSDEC formally terminated the BCA for failure to comply with its terms. The lesson here is not to be complacent about the time periods of any agreements or orders entered with NYSDEC. To do so is to risk losing critical legal rights and benefits.

For an interesting similar decision, and subsequent Appellate Division and underlying Article 78 Orders, see Corastor Holding Co., Inc. and Hamil Stratten Properties, LLC Decision by Dale Desnoyers, May 2, 2008; Hamil Stratten Properties, LLC et al. v. NYSDEC (App. Div. 2d Dept) 79 A.D.3d 747, 913 N.Y.S.2d 282, 12/7/10, and Hamil Stratten Properties, LLC, et al. v. NYSDEC, Queens Co. Supreme, 2009 WL 2696931 (N.Y.Sup.), 2009 N.Y. Slip Op. 31887, 8/7/09.


In the Matter of Kara Fibers RHRF and Bonnie L. Silvernail, Respondents
Order, September 23, 2013
DEC Case No. CO 5-20111215-28

Subsequent to a Motion for an Order without Hearing as per 6 NYCRR Part 622.10, the Commissioner Ordered a default judgment pursuant to 6 NYCRR Part 622.15 due to the failure to file an annual report for a Solid Waste Management for two years in violation of 6 NYCRR Part 360-12.2(d). A penalty of five thousand dollars ($5,000) was assessed as requested by NYSDEC staff and Respondent was also directed to submit the tardy annual reports.


In the Matter of Jason Roberts Development Corp., Respondents
Order, September 14, 2013
DEC Case No. CO 5-20120412-07

In an ECL Article 15 action, Respondent was assessed a $10,000 penalty for the failure to submit an Emergency Action Plan (EAP) for the Rainbow Lake Dam in violation of 6 NYCRR Part 673.7. The Commissioner held that that NYSDEC Staff's ten thousand dollar ($10,000) penalty request was authorized by either ECL §71-1127 or ECL §71-1109(1), based on the three years of daily violations for the failure to file the EAP.


In the Matter of 235 St. Nicholas, Inc., et al. Respondents
Order, September 5, 2013
DEC Case No. CO2-20100615-07


The enforcement sweep of illegal vehicle emissions testers continues for performing fraudulent onboard diagnostic (OBD) II emission inspections using noncompliant equipment and procedures in violation of 6 NYCRR 217-4.2. The Commissioner and ALJ relied on the recent precedents established in similar NYSDEC enforcement actions in distinguishing individual inspector versus corporate liability and the formula for calculating penalties (see Matter of Jerome Muffler Corp., Order of the Commissioner, May 24, 2013; Matter of Autorama, Order of the Commissioner, August 13, 2013; Matter of New Power Muffler Inc., Order of the Commissioner, July 15, 2013).

Total civil penalties of $50,600 were assessed against the corporate Respondent and $18,175 against the individual inspectors based on the proportionate percentage of the 355 phony inspections performed by each. Using the formula, a penalty of $375.00 was calculated per violation.


In the Matter of Dyre Ave Auto Repair Corp., et al., Respondents,
Order, September 5, 2013
DEC Case No. CO2-20100615-12


More OBD II faulty emission test enforcement. See, Matter of 235 St. Nicholas, Inc. Order of Commissioner, September 5, 2013 (above) for the general liability and penalty principles involved. Here, the Respondents were assessed $82,200 (corporation) and $29,600 (for two individual inspectors) for 577 non-compliant emission inspections.


In the Matter of G & J Ready Mix & Masonry Supply, Inc. , Respondent
Order, August 27, 2013
DEC Case No. CO2-20121011-2

The holder of a State Pollution Discharge Elimination System (SPDES) permit was found liable for failing to file both an annual discharge monitoring report ("DMR") and an annual certification report ("ACR") for calendar year 2011 for its Queens, New York facility in violation of 6 NYCRR Part 750-2.5(e). Respondent defaulted in the proceeding and was assessed a civil penalty of $10,000. (PDF Version 55.35 KB)


Weird News (Just in time for Halloween!)

Massive Molasses Spill Spells Aloha to Honolulu Harbor Fish

This matter serves as a reminder that water pollution can take forms other than industrial chemical contamination. A leaky molasses pipeline created a fish kill in the main port of Honolulu, Hawaii. In New York, any unauthorized release to a state waterway that is deleterious or injurious to fish or habitat would be a civil and/or criminal violation of the Environmental Conservation Law (ECL). In particular, see ECL §§ 71-0925, 11-0503 and 13-0345 which allow for the assessment of penalties of $10.00 per fish, in addition to other penalties using ECL Article 17. Natural Resource Damages ("NRD") could also be assessed by the state under the Section 311 of the federal Clean Water Act (CWA).


Zillions of Creeping Crickets Invade Oklahoma

Severe drought such as that being experienced in Oklahoma creates conditions that allow crickets to swarm in disgustingly high numbers as the pictures accompanying this story depict. Yuck!


Florida Uses Dogs to Sniff Out Giant African Land Snails

This is an update to a previous Update item (see Update Issue #4, April 2013) involving a strange invasive species (even by Florida standards).


Wild Monkeys Terrorize Florida

Like biblical plagues, it seems that each month finds the sunshine state under attack by a new invasive species. Erstwhile entrepreneurs thought that tourists would love to see "adorable" imported rhesus monkeys in a theme park setting. But the monkeys escaped, multiplied and various dangers to humans and the environment ensued.


Six Clawed Lobster Emerges from the Deep (No, Not a Roger Corman Movie!)

A six-clawed lobster was caught off the coast of Maine. Is it pollution or a natural mutation? Either way, this curiosity calls attention to the worsening condition of the stressed east coast commercial lobster fishery.


Attention All Cryptozoologists! The Bigfoot Map is Here!

Has there been a sighting near you? Some of us may recall the alleged sightings in the southern Adirondacks back in the 1970s. Regardless, report all giant hominids to these folks.

The Asian Stink Beetle Has Now Arrived (in California anyway)

Asian Stink Beetles, I think we would rather have the Bigfoots (see above).

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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 October 27, 2013 1:36 PM.

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