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NY Environmental Enforcement Update November 2013, #11


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


Enforcement News for November

AG Recovers Eight Million Dollars for Oil Spill Fund

Attorney General Eric T. Schneiderman announced an $8.05 million settlement with ExxonMobil Oil Corporation, which will reimburse the State of New York for costs incurred by the State's Environmental Protection and Spill Compensation Fund (Oil Spill Fund) for the costs spent to investigate and remediate an oil spill in Ogdensburg known as the Lighthouse Point spill site. The barge dock facility on the Oswegatchie River also contained seven above-ground tanks that stored gasoline, diesel, fuel oil and kerosene, a truck loading rack and 1,500 feet of subsurface pipelines that connected the barge dock facility to the Main Terminal. The spill was discovered in 2001.


Energy Company Fined 1 Million for Eagles Killed by Wind Farms

This is an evolving story that illustrates the clash between traditional (some would say iconic) wildlife protection enforcement and the alternative energy industry. Duke Energy Renewables Inc., a subsidiary of Duke Energy Corp., pleaded guilty in U.S. District Court in Wyoming today to violating the federal Migratory Bird Treaty Act (MBTA) in connection with the deaths of protected birds, including golden eagles, at two of the company's wind projects in Wyoming. This action is the first ever criminal enforcement of the Migratory Bird Treaty Act for wind projects.

The company was sentenced to pay fines, restitution and community service totaling $1 million and was placed on probation for five years. The company is also required to apply for an Eagle Take Permit which, if granted, will provide a framework for minimizing and mitigating the deaths of golden eagles at the wind projects.

While this federal enforcement case arose in Wyoming, New York has always taken great pride in restoring and protecting both the bald and golden eagle populations. Are New York's wind farms the next enforcement candidates? A regulatory compromise is in the works. So, more on this story next month.


DEC Hudson River Oil Spill Drill

Environmental enforcement is also about education and prevention. Therefore, the DEC and other state and federal agencies must be lauded for conducting a mid-Hudson River oil spill drill as part of preparation and training for a coordinated response and improved communication among government agencies in case of a major spill. The likelihood of a major spill has increased recently due to the increased river, rail and pipeline transport of petroleum and natural gas through the Mohawk and Hudson River corridors. The increase is largely due to the increased oil and gas production in the Midwest. The data was also used to develop a map of the potential spill impacts.


Albany Co. Bans Styrofoam Containers

Albany County became one of approximately 100 communities nationwide to fully or partially ban the commercial use of styrofoam containers. Suffolk County and the City of Glen cover are among the New York communities that already have some form of ban. New York City is also considering a ban. Albany County's ban is qualified so that it extends only to national chains operating in the County that sell prepared food or beverages in styrofoam containers (Dunkin Donuts and McDonalds for example).


Inflation Raises EPA Fines

EPA published its quadrennial Civil Monetary Penalty Inflation Adjustment Rule which will be effective for all violations incurred after 12/6/13. The new rule will raise maximum penalties for several air and water pollution statutes. Twenty of the 88 EPA statutory civil penalty provisions will go up under the final rule, with maximum fines going up by as much as $50,000 for sections of the Clean Water Act, Clean Air Act, Comprehensive Environmental Response, Compensation and Liability Act among others.


PA Uses Strict Liability for Environmental Crimes

The Pennsylvania Attorney General recently applied the strict criminal liability provisions of that state's Solid Waste Management Act (SWMA) in the prosecution of an oil and gas operator. The SWMA provides for felony prosecution using strict liability principles. There are also similar provisions in other Pennsylvania environmental laws, including that state's Clean Streams Law and Air Pollution Control Act. While most New York criminal environmental laws do not provide for strict liability prosecutions per se, this trend may impact cross-border pollution enforcement especially if the hydraulic fracturing is permitted in New York.


Water Runoff Drums up Fines Along the Mohawk

A Cohoes, New York scrapyard paid a $5,000 administrative penalty for allowing polluted water to escape during heavy rains this spring into the Mohawk River. The company also agreed to revamp its storm water management plans and will test runoff water according to a consent order entered with the DEC. $20,000 in penalties was suspended pending compliance with the terms of the Order. DEC inspectors saw polluted water from the scrapyard discharging into a drainage area along Interstate 787 that ultimately drained into the nearby Mohawk River. This appears to be a growing category of sector enforcement by the agency.


Illegal Striped Bass - A New Pizza Topping?

DEC charged a Babylon restaurant owner with four ECL Article 11 Misdemeanors for illegally possessing and selling over 60 pounds of striped bass. Environmental Conservation Officers (ECOs) had observed an employee bringing a large striped bass into the restaurant via a back lot. A subsequent inspection of the pizzeria discovered more untagged striped bass stored in restaurant coolers.

Illegal commercialization of the fishing stock, not only depletes the species, but is also unfair to those commercial fishermen who comply with the law.
If found guilty, ECL Article 71 allows for criminal fines of up to $5,000 or one year in jail for each misdemeanor.


Instagram of Captured Deer Leads to Instant Capture of Deer Snatchers

In a foolish use of social media, several men recorded and posted via Instagram their capture and interference with wild white-tailed deer fawns on eastern Long Island. The post was then spotted by an alert tipster who called DEC. All state wildlife is protected under New York State law and it is illegal to capture an animal without an appropriate permit issued pursuant to ECL Article 11. The men face charges brought by DEC in Riverhead Town Justice Court. The violations were investigated subsequent to a call to the DEC's tip line which can be used to report illegal activities at 1-877-457-5680 or 1-800-TIPP-DEC.


25 Years of Seized Ivory Destroyed

Those that follow this blog know that the prosecution of the illegal ivory trade is a state, federal and international enforcement priority. But, what happens to the ivory seized in these actions? Eventually, the objects are destroyed by the US Fish & Wildlife Service. Recently, approximately six tons of ivory held by the agency were pulverized to create awareness of this black market trade. Sadly, this is estimated to be only a small fraction of the total amount of illegal ivory still in the stream of worldwide commerce.

Enforcement People in the News

Robert F. Cross

Robert F. Cross, the commissioner of Albany's Department of Water and Water Supply, is retiring at the end of December after 17 years. Many may also remember Bob as a former DEC assistant commissioner appointed by former Governor Mario M. Cuomo. The Environmental Law Section wishes Bob well after 35 years in public service with the state and the City of Albany.


Federal Criminal and Civil Enforcement

US v, Palmer (NDNY)

Defendant was sentenced to six months of home detention and two years of probation for a felony violation of the Clean Air Act, 42 U.S.C. § 7413(c), related to the illegal removal and disposal of asbestos. He was also ordered to pay a criminal fine of $25,000 and to perform 50 hours of community service. The Defendant owned a plant that contained more than two thousand feet of friable asbestos insulation which he tried to renovate, without filing a notification with the EPA, using unlicensed individuals to perform asbestos removal whom did not wet the asbestos or properly dispose of the asbestos at a state-approved landfill.

By comparison, under New York State law, the same activity would most likely have been prosecuted for the unlawful release of a hazardous substance pursuant to ECL § 71-2710, et seq. (with the precise crime dependent on the relevant culpable mental state and the quantity released). Unlike federal law, New York environmental law (the "ECL") does not provide for a felony air violation crime.


U.S. v. Slattery, (EDNY)

Frequent readers will recognize that the Update continues to follow the aftermath of "Operation Crash," the initiative to prosecute the illegal trade in Black Rhino horns and other illicit animal artifacts. Here, Defendant, an Irish national, pleaded guilty to conspiracy to violate the Lacey Act in relation to illegal rhinoceros horn trafficking which carries a maximum penalty of five years in prison. Under the terms of his plea agreement, any proceeds from the illegal trafficking are to remain in the United States to be forfeited or used for the potential criminal fine. In the plea agreement, the Defendant admitted that the conspirators traveled throughout the United States to illegally purchase and sell endangered rhinoceros horns.


NYSDEC Region 4 Administrative Orders, November 2013

It is worth noting that currently DEC Region 4, is the only DEC Region that regularly posts administrative enforcement consent orders and settlements. However, this data can be a useful window into the agency's enforcement policies statewide.


In the Matter of Provincial Contractor Services
Order, November 13, 2013
R4-2013-1011-125

Respondent was assessed a $1,000 administrative penalty for transporting regulated waste (asbestos mixed in construction and demolition materials) without a permit in violation of 6 NYCRR Part 364.


In the Matter of Applied Ecological Services
Order, November 6, 2013
R4-2013-1009-123

Respondent was assessed a $2,000 administrative penalty for the failure to follow usage directions and supervise the application of pesticides in violation of various sections of 6 NYCRR Part 325.


In the Matter of Lawn Dawn
Order, November 6, 2013
R4-2013-0712-94

Respondent was assessed a $3,200 administrative penalty for the failure to follow label instructions for protective clothing, to have an applicator's signature and the number of applications in a commercial contract in violation of various provisions of 6 NYCRR Part 325.


In the Matter of Wever Petroleum
Order, November 4, 2013
R4-2013-1011-126

Respondent was assessed a $1,000 administrative penalty for the nuisance and unpermitted air release of propane at its facility in violation of 6 NYCRR Part 211.1 and ECL Article 19.


In the Matter of Ed Derosia
Order, November 4, 2013
R4-2013-0814-103

Respondent was assessed a $1,500 administrative penalty for various violations of an Article 15 permit issued for the reconstruction of a portion of a stream including the failure to remove dredged materials, implement erosion controls and the construction of an unplanned culvert.


NYSDEC Administrative Hearing Decisions and Orders

In the Matter of H & S Repair Corp.
Order, November 1, 2013
No. CO2-20130325-01

A default judgment was issued pursuant to 6 NYCRR 622.15 for a violation of ECL 27-2303(1) and 6 NYCRR 360-12.1(c), for failing to submit an annual report for the year 2010 for the vehicle dismantling facility it operates at 127-27 Willets Point Boulevard, Corona, New York. The Commissioner also ruled that the dissolution of the business after the violation has no bearing on the proceeding (see Business Corporation Law §§ 1006[a][4] & [b] and 1009; Matter of Quadrozzi Concrete Corp. , Order of the Commissioner, June 17, 2013, at 1-2).


In the Matter of Reliable Heating Oil, Inc.
Decision and Order, October 30, 2013
No. R2-2012-1116-725

This matter involves an unfortunate incident that happens more often than one might think. In effect, the Respondent fuel supplier negligently delivered 150 gallons of fuel to a homeowner's basement rather than the intended fuel tank in violation of Navigation Law (NL) §§ 173, 175 and 176, and 17 NYCRR 32.3 and 32.5. Respondent also failed to report the spill and to take steps to contain the discharge. Finally, Respondent defaulted and was assessed an administrative penalty of $30,000.00.


In the Matter of 906 Eagle Avenue Housing Development Fund Corporation
Order, October 27, 2013
No. PBS 2-601106NBT

In the Matter of Palushaj Properties, LLC.
Order, October 27, 2013
No. PBS 2-268690NMW

Frequent readers will recognize that the DEC staff is serious about enforcing petroleum tank registration requirements even for new owners who must re-register the tank within 30 days of the transfer of ownership or violate 6 NYCRR 612.2. In the 906 Eagle case, the failure to register a tank for 15 years, in combination with a default for the failure to answer netted Respondent a $10,000 penalty. In the Palushai case, the Respondent's attempt to mitigate by filing the delinquent registration paid off with a reduction of the penalty to $8,000 (also for more than five years of violation).


In the Matter of Buffalo China, Inc.
Order, October 27, 2013
No. 525-2012DK

In another default action, Respondent was assessed a $1,500, administrative penalty for the failure to file a complete and accurate annual gas well report for the 2009 production year for its West Seneca gas well in violation of ECL 23-0305(8)(f) and 6 NYCRR 551.2. The tardy report was eventually received by DEC in 2012.


Weird News

Faux CIA Agent Rips Off EPA and the Taxpayer

An EPA employee plead guilty for taking fraudulent and phony leaves from work that he attributed to his other job as a "CIA agent." Apparently, someone accepted this excuse.


Monkeys Multiply in India

Desperate to quell the out-of-control monkey population, India has engaged American experts to use contraception to curb these destructive creatures. This is another abject lesson about the dire consequences of wildlife mismanagement.


Scientists Kill Oldest Living Thing to Find its Age

This item will make you feel sorry for "Ming" the poor Icelandic clam sacrificed in the name of science. At the time of his demise, Ming the Clam was a hale and hearty 507 years old. RIP.


Solar Power Plant Fries Migratory Birds

If the eagle killing wind farm item at the beginning of this post did not illustrate the clash between wildlife and alternative energy, then certainly this item does. Even the mirrors used to reflect sunlight for passive solar power generation generate enough heat to injure and kill birds that get close enough to be affected.

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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 December 19, 2013 9:40 AM.

The previous post in this blog was EPA Quietly Extends Compliance Date for Pollinator Warnings on Neonicotinoid Agricultural Pesticide Labels .

The next post in this blog is Sea Level Rise Estimates Allowed in Sandy Recovery.

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