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NY Environmental Section Enforcement Update August 2013, #8

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

Environmental Enforcement News

Spotlight on the NYSDEC Forest Rangers

The advent of August means forest fire awareness. Fire danger also raises awareness of the other NYSDEC police force, the NY Forest Rangers. The Rangers high profile mission is as the state's premier forest fire prevention and wilderness rescue unit. However, having been upgraded from Peace Officer to full Police Officer status [CPL Section 1.20(v)c] , the Rangers also have a considerable enforcement presence on state lands and campgrounds in the Catskills, Adirondacks and Southern Tier. The unit's 2012 Annual Report details more than 2,000 enforcement actions commenced for violations of various parts of the Environmental Conservation Law and the Vehicle and Traffic Law (for boats, ATVs and other motor vehicles).

NYC Dept. of Environmental Protection Installs Sewer Monitoring Gizmos

Readers will recall that the Update previously commented on the difficulties of documenting unauthorized releases into the New York City sewer system (and the advantage that gives to criminals that deliberately release hazardous substances into the system)(see Enforcement Update Issue # 6, June 2013). Therefore, it is timely to note that NYCDEP has responded by deploying a system of flow monitors to discover such releases. While primarily focused on preventing and responding to blockages, I suspect that the new equipment will also detect large water pollution violations as well.

Enforcement People in the News

NYSDEC Investigator Robert O'Connor received the "Officer of the Year Award" for Outstanding Service by the Northeast Conservation Law Enforcement Chiefs Association (NECLECA). NECLECA consists of the law enforcement chiefs of conservation agencies from 13 Northeastern states, three Eastern provinces of Canada and the United States and Canadian conservation law enforcement agencies. Investigator O'Connor started with NYSDEC in 1989, and has been cited repeatedly for his many contributions and accomplishments.

Attorney Michael S. Caruso, formerly of the NYSDEC Office of General Counsel, has been appointed to the Department's Office of Hearings and Mediation Services as an Administrative Law Judge. He is already hard at work as illustrated by this month's administrative hearing summaries below.

The Susquehanna River Basin Commission (SRBC) has announced the appointment of Andrew D. Dehoff as its new executive director. He will serve as only the third executive director in the agency's 42-year history. His appointment becomes effective on September 19, 2013.

Federal Criminal and Civil Enforcement

P. v Walker Puts Pit Bull Abuser Behind Bars (Albany County Court)

This defendant was sentenced to six months in county jail and five years of Felony Probation after he pleaded guilty to one count of Aggravated Cruelty to Animals, an unclassified felony as per N.Y. AGM § 353-a. As a condition of probation, the defendant cannot possess or reside with animals. He had intentionally left four pit bull dogs unattended in a trailer for an extended period of time without adequate food, water or care. One of the dogs suffered serious physical injury which satisfied one of the elements of the felony crime used.

Feds Thwart Mob Control of Carting Business...For Now (SDNY)

Three defendants pleaded guilty to loansharking or conspiracy to commit extortion in connection with their roles in a larger scheme to exert control over the commercial waste-hauling industry in the greater New York City metropolitan area and in parts of New Jersey. They were participants in the scheme, along with other members and associates of three different Organized Crime Families of La Cosa Nostra ("LCN") - the Genovese, Gambino, and Luchese Crime Families.

Asbestos Dumpers Pay Big for Violating the Clean Water Act (NDNY)

In a continuation of a case first reported on by the Update in July # 6 (see previous post on U.S. v. Mazza (NDNY)), three more individuals were sentenced in federal court in the NDNY, for illegally dumping thousands of tons of asbestos-contaminated construction debris on a 28-acre piece of property on the Mohawk River in Frankfort.

The first was sentenced to serve 36 months in prison followed by three years of supervised release while the other was sentenced to five years' probation, including six months of home confinement. Two were ordered to pay $492,000 in restitution for, among other things, cleanup expenses at the site. Criminal violations included those for the Clean Water Act, CERCLA, wire fraud and for defrauding the United States.

In addition, one defendant pleaded guilty to substantive wire fraud and making false statements to law enforcement in connection with a fabricated "permit letter" the conspirators created and used to dump at the site.

Finally, the truck broker in the operation was sentenced to 15 months in prison for conspiring to commit wire fraud, thus ending this sordid affair but not before the conspirators had dumped at least 400 truckloads of asbestos laden debris at the site.

Fisherman and Fish Dealer Plead Guilty for Phony Flounder Records (EDNY)

In yet another assault on the state's and region's fishing resources the operator of a commercial dragger vessel operating in local waters and his fish dealer pleaded guilty in federal court to federal violations for systematically under reporting their harvest of fluke (summer flounder). As part of the plea deal, the defendants agreed to pay between $480,000 and $516,000 in combined fines and forfeitures. The defendants also agreed to severe multiple sentence conditions, including relinquishment of federal fishing permits, a ban on participation in a federal research program, divestiture of the fishing vessel, and shutting down the dealership. The court will hear individual sentencing recommendations at a hearing set for Nov. 22, 2013.

To compare, see both New York's commercial and recreational legal fishing limits.

Artifact Smuggler Gored for Dealing in Illegal Rhino Horns (SDNY)

A New York antiques dealer pleaded guilty in federal court to conspiracy to smuggle Asian artifacts made from rhinoceros horns and ivory and violate wildlife trafficking laws. Defendant was apprehended as part of "Operation Crash," a nation-wide crackdown in the illegal trafficking in rhinoceros horns and artifact smuggling to Hong Kong and China. He conspired with others to smuggle the objects out of the United States knowing that it was illegal to export such items without required permits.

Since 1976, the rhino horn trade has been regulated under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), a treaty signed by over 170 countries around the world to protect imperiled fish, wildlife, and plants.

The investigation was collaboration between the U.S. Fish and Wildlife Service, the NYSDEC Division of Law Enforcement, and U.S. Immigration and Customs Enforcement's Homeland Security Investigations.

Administrative Enforcement Actions and Settlements

DEC Administrative Settlement (pre-hearing) Reporting (Region 4)

One of the glaring deficiencies in NYSDEC information services is the failure to release notice or copies of routine administrative consent orders. While major settlements are often reported via press release, the vast majority of the department's settlements and consent orders are not individually reported or are otherwise buried in obscure or infrequently released annual reports. Therefore, NYSDEC Region 4 is to be commended for independently providing a web link to administrative consent orders issued by that office.

You can view some of the most recent NYSDEC administrative actions by visiting the Recent Decisions page on the NYSDEC website.

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

The Commissioner issued an Order granting the staff's Motion for a Default Judgment against Respondent for the failure to file an annual discharge monitoring report ("DMR") for calendar year 2011 and an annual certification report ("ACR") for calendar year 2011 for its facility in Queens, New York in violation of 6 NYCRR 750-2.5(e) and the Department's SPDES Multi-Sector General Permit for Stormwater Discharges. Respondent was ordered to submit the documents and pay a civil penalty of 10,000.00.

In the Matter of J & M Used Auto Parts, Inc., Respondent
Order, August 27, 2013
DEC Case No.: CO2-20121011-7

Similar to the above, the Commissioner issued an Order granting the staff's Motion for a Default Judgment against Respondent for the failure to file an annual discharge monitoring report ("DMR") for calendar year 2011 and an annual certification report ("ACR") for calendar year 2011 for its facility in Brooklyn, New York in violation of 6 NYCRR 750-2.5(e) and the Department's SPDES Multi-Sector General Permit for Stormwater Discharges. Respondent was ordered to submit the documents and pay a civil penalty of 10,000.00.

In the Matter of Cushman, Heath d/b/a Ironman Scrap Removal, Respondent
Order, August 27, 2013
DEC Case No. R6-20121107-72

Here, the Region 6 staff commenced an enforcement action against a Gouverneur facility with an all too common problem: the unauthorized storage of more than 1,000 tires. This scenario creates the potential for water, air and regulated waste pollution (not to mention the fire and pest nuisance inherent in stockpiling old tires). The potential for a pollution release was enhanced by additional solid waste permit, gasoline discharge and spill reporting violations. Respondent failed to answer and appear and Department staff's motion for a default judgment pursuant to 6 NYCRR 622.15 was granted. Despite Respondent's default, the Commissioner ordered half of the penalty suspended (from $40,700 assessed to $20,300 payable) pending remediation of the tires and the gasoline spill.

In the Matter of U.S. Energy Development Corp., Respondent
Ruling of the Chief Administrative Law Judge on Motion for Dismissal of Affirmative Defenses, August 23, 2013

This Ruling by Chief ALJ McClymonds continues efforts to reach a resolution of an administrative prosecution that may be important to future enforcement cases involving mining waste discharges (including fracking wastes). Recall that the facts of this case were previously reported by the Update in the July Issue #7 where the Chief ALJ denied Respondent's Motion for a Stay pending resolution of a parallel Article 78 Petition.

Among rulings on a number of motions by both parties to dismiss or dismiss affirmative defenses, the Chief ALJ addressed the issue of federal preemption by the Clean Water Act (CWA). Recall that the original release occurred in Pennsylvania before entering a NY waterway and was first addressed by Respondent by entering into two Orders on Consent with DEC. Using that fact, the Chief ALJ noted that as Respondent had executed the two consent orders with the Department and that Respondent was also aware of the federal preemption defense. Despite these factors, Respondent still made the business decision to settle with the Department. Therefore, the Respondent voluntarily consented to the application of New York's standards to resolve the Department's claims under ECL 17-0501 and serve as the basis for its obligations under the consent orders.

In an attempt to defer liability, Respondent argued in several defenses that additional state and federal agencies should be joined in the action as violators themselves. In dismissing these defenses, the Chief ALJ noted that whether the failure to join necessary parties is an available defense is undecided according to previous administrative rulings. However, the defenses failed on the merits anyway due to the lack of prejudice and because relief could be granted without the other parties. In addition, he noted that if others were liable (as established by the record), Respondent's liability may be mitigated as well.

In the Matter of Johanna Transmission Parts, Inc., et al., Respondent
Order, August 21, 2013
DEC Case No. CO2-20100615-22

The Department continued its enforcement efforts against illegal automotive emissions testers by finding both a Manhattan-based business entity and the individual inspectors (including managers) in violation for using an ersatz testing device to deliver dummy emission results in violation of 6 NYCRR 217-4.2 (operating an official emissions inspection station using equipment and procedures that are not in compliance with the Department's procedures and standards). The business was held liable for each of the 1,584 violations documented by DEC staff. The Respondent business did not file an answer or otherwise appear in the hearing although two of the three employees did appear at the hearing.

However, as with the previous violation Administrative Orders involving onboard diagnostic (OBD) II inspections, the real issue was in the differing civil penalty calculations and legal theories used by the Commissioner (and ALJ) and the DEC staff. Staff had requested a penalty of $792,000, representing a penalty of $500 per violation. This was far less than the multi-million dollar penalty range allowed under ECL 71-2103(1). Instead, the Commissioner ordered a reduced total penalty of $281,600, with $225,000 against the business as license holder and the rest in separate penalties against each of three individuals. These were calculated by the percentage of the number of phony emission tests performed by each individual Respondent out of the total performed.

Once again, as set forth in other recent Orders in this field (see, Jerome Muffler Orders, May 24, 28, Update Issue # 6; New Power Muffler Inc., Order, July 15, 2013, Update Issue # 7), the Commissioner has set a high bar for the Staff to establish both to joint and several liability and corporate officer liability in these OBD cases.

In the Matter of Brooklyn Resource Recovery, Inc., Respondent
Ruling, August 16, 2013
DEC Case Nos. 2-20010326-183 and 2-20110520-178

In an interesting ruling on Motions for an Order without Hearing and Cross Motions to dismiss, the ALJ issued useful analysis on the statute of limitations and constitutional due process. To appreciate the Rulings, one must be aware that the parties have been actively nursing a simmering dispute over an alleged oil spill at the site of Respondent's auto shredder since 2006. The confusing and contradictory affidavits presented by the parties made any summary proceeding on the spill issue impossible and a hearing was scheduled.

However, Respondent also cross-moved for dismissal based on a violation of the Statute of Limitations and on various constitutional due process grounds (the alleged use of hearsay by DEC staff being prominent). The ALJ ruled that while there is no specific Statute of Limitations for an administrative action in the State Administrative Procedure Act (SAPA), Respondent could not show that it met any of the unfairness standards that would allow for such limitations to be created citing Matter of Gramercy Wrecking and Environmental Contractors, Inc., ALJ Ruling, Jan. 14, 2008, citing Matter of Cortlandt Nursing Home v Axelrod, 66 NY2d 169, 178).

In regards to the use of hearsay, the Ruling noted that hearsay evidence is admissible in an administrative adjudicatory proceeding and can be the basis of an administrative enforcement determination (see SAPA § 306[1][agencies need not observe the rules of evidence observed by courts]).

In the Matter of Autoramo Inc., Luis A. Ramos, and Rafael Tavera, Respondent
Order, August 13, 2013
DEC Case No. CO2-20100615-06

This matter has virtually the same on-board diagnostic OBD inspection fact pattern and legal issues as those in the Johanna and Jerome Muffler Orders referenced above. Only here, evidence indicated only a mere 315 falsified vehicle emission tests. However, using a modification of the penalty calculation used in the previous cases, the company was assessed a penalty of $75,000 and one of the employees was ordered to pay $30,000. However, the overall penalty was reduced by one third due to bad service on one of the Respondents. Under the modified proportionality scheme the remaining Respondent was assessed $30,000, for his inspections.

Weird News

Blood Worms Infest Local Oklahoma Water Supply

Yecchh! I say no more!

Japanese Start Sperm Bank for Endangered Species

Sometimes these posts just seem to write themselves.

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 6, 2013 12:06 PM.

The previous post in this blog was NY Environmental Section Enforcement Update July 2013, #7.

The next post in this blog is NY Environmental Enforcement Update September 2013, #9.

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