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NY Environmental Enforcement Update, October 2013, #10

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

Environmental Enforcement News

New NYSDEC Audit Policy to be Effective November 18, 2013

In a major revision of its enforcement policies, NYSDEC initiated a new audit and self-disclosure program that will allow a violator to waive the majority of civil penalties for violations that are discovered and disclosed voluntarily, or discovered during pollution prevention or compliance assistance.

The new Commissioner's Policy (CP - 59) also offers additional incentives to entities that perform environmental audits and then enter into audit agreements. Entities with a history of non-compliance are ineligible. Certain violations are also excluded from the policy, including recurring violations and those involving criminal activity or serious harm to human health or the environment.

The new policy supersedes the old NYSDEC small business violation disclosure policy (CP-19) and also generally tracks the existing EPA audit and violation disclosure policies.

NYSDEC Pounds Salt Plant

In response to an air pollution violation which caused the release of particulates and related opacity violations, a Port of Coeymans plant was ordered to cease processing rock salt. The plant did not have a state pollution permit and was ordered to pay a $4,500 fine, $3,000 of which will be suspended if the company stops processing salt at the port. Previously, state officials had inspected the plant's combustion unit or furnace, which is used to dry rock salt. The operation emitted a steam and particulate plume that also exceeded state standards for opacity in violation of 6 NYCRR Part 227-1.3(a).

Spotlight on the NYC Department of Environmental Protection (DEP) Environmental Police

Graduation ceremonies were recently held for thirty new DEP Environmental Protection Officers (EPO). While not as well-known as the state's other environmental law enforcement agencies, the DEP police protect New York City's drinking water supply and the associated infrastructure of that system in the nine upstate counties that constitute the NYC drinking watershed. This class brings the DEP Police force up to 211 total Environmental Protection Officers (EPO).

The current DEP Police force is a descendant of the Bureau of Water Supply (BWS) Police originally created through legislation enacted in the 1906 Water Supply Act. In 1983, the Bureau of Water Supply became the Department of Environmental Protection and the New York State Legislature revised the New York Criminal Procedure Law to include DEP police officers. In 1999, DEP jurisdiction was extended to include the five boroughs of New York City. The EPO are fully certified NY police officers and the department has full-time Aviation and Emergency Services Units, Marine and K-9 Patrols, and a Detective Bureau.

Wild Boars (not Boors) Banned in NY

Gov. Andrew Cuomo signed a bill amending Articles 11 and 71 of the Environmental Conservation Law that outlaws and criminalizes hunting Eurasian boars a destructive and potentially dangerous animal that can weigh up to 300 lbs. The new law prohibits the hunting, importing, sale and breeding of the boar as well as releasing them into the wild. The legislation will be effective Sept. 1, 2015. It is hoped that the new legislation will prevent the widespread and costly agricultural and environmental damage these creatures have already inflicted in a number of other states.

Enforcement People in the News

A number of experienced environmental professionals who have wielded statewide influence have recently moved on to new positions. The Environmental Law Section wishes them all well in their new endeavors.

- Martin D. Brand has been appointed the new Director for NYSDEC (DEC) Region 3, located in New Paltz. As the new regional director, Brand will oversee all agency efforts in Sullivan, Ulster, Dutchess, Orange, Putnam, Rockland and Westchester counties. Prior to his appointment, he spent more than three decades at DEC and worked in many areas including environmental site investigation, remediation and solid and hazardous waste regulations.

- Assistant Attorney General Michael J. Myers, was recognized by the American Bar Association as its 2013 "Environment, Energy, and Resources Government Attorney of the Year Award." Mr. Myers, currently heads the AG's Environmental Protection Bureau's affirmative litigation section in Albany. He was further recognized by Attorney General Eric Schneiderman as one of the nation's leading air pollution and climate change litigators.

- Governor Andrew M. Cuomo announced the appointments of Basil Seggos and Anne Tarpinian to his environmental team. Mr. Seggos will serve as Deputy Secretary for the Environment, and Ms. Tarpinian will serve as Assistant Secretary for the Environment.

- Former NYSDEC Commissioner Peter Iwanowicz is the new Executive Director of Environmental Advocates of New York, effective November 7, 2013. He leaves his current position as an executive with the American Lung Association.

- Robert Rosenthal, the former Assistant Counsel for Energy and the Environment to New York State Governor Andrew Cuomo has joined the international law firm Greenberg Traurig LLP. He joins the Environmental and Energy practices in the firm's Albany office. Prior to joining the Governor's office, Rosenthal spent 16 years at the New York State Attorney General's Office in the Environmental Protection Bureau.

State Enforcement Actions

DEC Felony Fish & Wildlife-Gun-Drug Arrests

While DEC Environmental Conservation Police routinely defer non-Conservation Law crimes to traditional law enforcement, this matter is an example when the alleged charges were interrelated and required combined enforcement with the NY State Police. The suspects were arrested on a dozen different charges, including two felony weapons and drug charges including:
- three counts of illegally killing a deer;
- one count each of possessing a pistol while muzzleloader hunting;
- exceeding the bag limit for deer;
- three violations of hunting deer over bait;
- felony criminal possession of a weapon charge;
- felony possession of marijuana;
- unlawful possession of a large capacity ammunition clip; and
- illegally growing marijuana.

Four Fishermen Face Spear Fishing Felonies for Taking Striped Bass

Four Fishermen were caught by DEC Police with 74 illegally speared striped bass taken in waters off Valiant Rock in Block Island Sound. The suspects were divers using spear guns to shoot the fish in a shallow area east of Gull Island. A search of their boat revealed both tagged and untagged striped bass. Some of the tags were inaccurate as well. New York State Environmental Conservation Law (ECL) forbids the taking of striped bass for commercial purposes by spear as once the fish is wounded it cannot be released if it is undersized as established by limits meant to protect the striped bass fishery.

The DEC determined that the total unlawfully harvested striped bass weighed 926.5 pounds and were valued at $4,632. Note, the ECL allows for Felony criminal charges where the value of the illegally harvested fish exceeds $1,500. Striped bass are an important and valuable marine resource for both New York's recreational and commercial fisheries. This popularity requires careful management to prevent overfishing.

October NYSDEC Region 4 Administrative Enforcement Consent Order

It was a busy month in Region 4 with eight new administrative consent orders on subjects including storm water runoff, pesticide regulation, air enforcement and mining violations. Of particular interest are cases involving hazardous waste paperwork violations (Fiber Glass Industries, Order R4-2013-1004-121) and a rare example of a public nuisance air violation as per 6 NYCRR Part 211.2 (Pan Am Railways, Order R4-2013-0606-77) Once again, it is worth noting that DEC Region 4, is currently the only DEC Region that regularly posts administrative enforcement consent orders and settlements.

Attorney General Prevents Crematory Pollution

The office of Attorney General Eric T. Schneiderman commenced a civil lawsuit to prevent a Buffalo-area funeral home from reopening its crematory in a residential area. The crematory had had a long history of emitting foul odors, soot, and excessive noise into the local neighborhood. The action was requested by DEC based on the funeral home's attempt to reopen the crematory despite an earlier July 2012 agreement that had originally suspended operations. Community complaints are an important basis for this case. Crematories have traditionally been heavily regulated operations that require both environmental permits and trained operators.

Federal Criminal and Civil Enforcement

U.S. v. Riccelli Enterprises, Inc., et al. (NDNY)

A Syracuse-area trucking company charged by the U.S. Attorney with civil violations of the Clean Water Act (CWA) agreed to settle and to pay a civil fine of $50,000.00 and remove an illegal parking lot constructed on the filled in area. The defendants had filled in over 5 acres of federally regulated wetlands and then constructed a parking lot on the parcel. At a minimum, such an endeavor would have required a CWA 404 permit from the U.S. Army Corps of Engineers. They also signed a parallel agreement with the State to pay an additional $50,000.00 civil penalty for similar state violations.

NYSDEC Administrative Hearing Orders and Rulings

Some highlights of recent decisions:

In the Matter of Exxonmobil Oil Corporation,f/k/a Mobil Oil Corporation
Chief ALJ Ruling, October 21, 2013
DEC Case No. 02-20060731-318

This Ruling explores the ramifications of delay as DEC staff commenced a 2013 action for a 6 NYCRR Part 622.10 Motion for an Order without Hearing for alleged twenty or more year old violations. The underlying allegations included failures to report a 1989 oil spill and to register an underground storage tank in 1993. Both sides contested the facts of the spill and the history of the site. DEC also claimed that it was unaware of the spill until 2005, and that a heavy work load then delayed immediate action. Respondent moved to dismiss on various grounds.

However, the heart of the Ruling addressed whether the passage of time prejudiced the Respondent's defense based on the factors raised in the so-called Cortland test. These were promulgated by the Court of Appeals in Cortland Nursing Home v. Axelrod, 66 NY2d 169, 179 (1985). The factors to be considered are:
- the nature of the private interest allegedly compromised by delay;
- the actual prejudice to the private party;
- the causal connection between the conduct of the parties and the delay; and
- the underlying public policy advanced by governmental regulation [66 NY2d 169, at 178].

Upon review of the record, the Chief ALJ held that, at least thus far, Respondent claims of prejudice were unproven and Respondent's motions were dismissed. However, the Ruling also dismissed the DEC Motion as there were (after more than 20 years) substantial issues of fact yet to be determined. The Chief ALJ then wisely concluded by recommending mediation between the parties given the complexity of the history and facts involved.

In the Matter of Sugar Hill Service Station, Inc., et al.
Order, October 4, 2013
DEC Case No. CO2-20100318-12

In the Matter of Sheridan Garage Corp., et al.
Order, October 3, 2013
DEC Case No. C02-20100615-14

In two unrelated cases, the DEC continues its enforcement sweep pursuant to 6 NYCRR 217-4.2 against Respondents operating an official emissions inspection station using equipment and procedures that are not in compliance with Department procedures and standards. Bogus inspections do not test the vehicles' onboard diagnostic ("OBD") systems which are designed to monitor the performance of major engine components, including those responsible for controlling air emissions.

The Sugar Hill Order held that five phony emission inspections were performed. Respondent and an individual inspector were each assessed a civil penalty of $1,250. In Sheridan, the parties were assessed $121,000 in penalties for 680 fraudulent inspections.

Both Orders analyzed the structure of penalties involving OBD inspections using recent prior Orders (see e.g. Jerome Muffler; Matter of Autoramo, Inc., Order of the Commissioner, August 13, 2013 ["Autoramo"]; Matter of New Power Muffler Inc., Order of the Commissioner, July 15, 2013 ["New Power"]).

Weird News

Cheer Leaders' Car Wash Halted as Environmentally Unsound - Rah-Rah

A good reminder that stormwater laws apply to everyone, no matter how wholesome the cause.

Wind Turbine Syndrome?

Some residents of Falmouth, MA claim to be affected by a yet-to-be accepted wind turbine syndrome, first described by Nina Pierpont, a John Hopkins University-trained pediatrician, whose husband is an anti-wind activist. As the pressure to find alternative energy sources increases, law and medicine will ultimately have to address this issue.

Chinese City of Harbin Literally Chokes on Its Own Smog!

Disconcerting news of China's smog problems is a good reminder of the power of our clean air laws.

Jellyfish Close Swedish Nuke Plant!

Do New York's nuclear plants have an emergency plan for jellyfish?


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 November 17, 2013 1:29 PM.

The previous post in this blog was NY Environmental Enforcement Update September 2013, #9.

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