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NY Environmental Enforcement Update December 2013, #12


By Michael J. Lesser, Environmental Law Section, NYSBA © 2014

Enforcement News for December

Greene Co. Sewer Hook Up Ban lifted after 10 years

In an example of DEC enforcement discretion, the agency lifted its 10 year moratorium on new connections to the Town of Cairo's wastewater treatment plant. The Town won this reprieve by making required improvements to its wastewater treatment facilities to increase flow at the plant to accommodate new development in the town.

Improvements included plans to reduce inflow and infiltration, management of high wet weather flows, and fixing existing filters.


Thermostat Recycling Bill Signed 12/19/13

This legislation (S.1676A/A.8084), which was sponsored by both environmental committee chairmen (Senator Mark Grisanti and Assemblyman Robert Sweeney), will require thermostat manufacturers to collect and safely dispose of mercury-containing thermostats, a major source of mercury in the waste stream. The effective date of this new law is July 1, 2014.


Proposed Federal Rule Would Allow Some Eagle Deaths by Wind Farms

The Obama administration is now moving toward finalizing a rule that would allow wind farms to kill bald and golden eagles under certain conditions. The proposed Interior Department rule extends the length of the permits that allow farms to "unintentionally" kill the eagles without penalty from five to 30 years. The rule would authorize the "non-purposeful" killing of eagles in exchange for the adoption of eagle conservation guidelines. This action comes soon after federal enforcement against wind farm operators for the deaths of golden and bald eagles during operations.


Enforcement People in the News

Law Enforcement Director Peter Fanelli Retires

After 32 years of service, Peter Fanelli retired from his position as the Director of the DEC Division of Law Enforcement ("DLE"). "Pete" served in many positions with DLE and finished his distinguished career as the supervising officer of the state's Environmental Conservation Officers. Always generous with his time, he appeared as a panelist at one of the Environmental Section's recent Legislative Forums. The Section wishes him well in retirement.


Beverly Kolenberg of EPA Passes Away

The Environmental Law Section extends its condolences to the family and friends of Beverly Kolenberg. At the time of her death, she had served for 28 years with the United States Environmental Protection Agency where she was Assistant Regional Counsel at the time of her passing. At EPA, she specialized in CERCLA litigation and was a leader of the team that was instrumental in closing the ten year old litigation following the 9/11 attack on the World Trade Center.


Federal Criminal and Civil Enforcement

Canadian Arrested for Money Laundering in Connection with Illegal Importation and Trafficking of Narwhal Tusks

A Canadian man was arrested December 19, 2013 in St. John, New Brunswick, Canada, on an extradition warrant requested by the United States for money laundering crimes related to the illegal importation and illegal trafficking of narwhal tusks. Narwhals are arctic dwelling whales with a single large tusk that is subject to the legal restrictions against the world ivory trade.


Natural Gas Fracker Pays Penalties, Remediation Costs for Clean Water Violations in West Virginia

While not a NY-based action, a recent settlement between the federal enforcers and Chesapeake Appalachia LLC, a subsidiary of Chesapeake Energy, may set the benchmark for future enforcement involving the fracking industry. The Department of Justice and the EPA settled CWA violations with the company, the nation's second largest natural gas producer. Chesapeake will pay a $3.2 million penalty and spend an EPA-estimated $6.5 million to restore 27 sites damaged by unauthorized discharges of fill material into streams and wetlands. It will also comply with federal and state water protection laws at the company's natural gas extraction sites in West Virginia. Many of the violations involved hydraulic fracturing ("fracking") operations.


Rhino Horn Smuggler Pleads Guilty in New Jersey to Wildlife Trafficking Crimes (Multiple Federal Jurisdictions)

The owner of an antique business in China pleaded guilty to organizing an illegal wildlife smuggling conspiracy involving the smuggling of 30 rhinoceros horns and numerous objects made from rhino horn and elephant ivory from the USA to China. The ivory objects are valued at $4.5 million.


New York Antiques Dealer Sentenced to 37 Months in Prison for Wildlife Smuggling (SDNY)

A New York antiques dealer, was sentenced in SDNY federal court to 37 months in prison for conspiracy to smuggle Asian artifacts made from rhinoceros horns and ivory and violate wildlife trafficking laws.


DEC Region 4 Administrative Orders

It is always worth noting that NYSDEC Region 4 is currently the only DEC Regional office that regularly posts all 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 Red-Kap Sales
Order, December 17, 2013
R4-2013-1112-136

Respondent violated regulations at 6 NYCRR 230.2 (f)(4) by failing to connect and ensure proper operation of the stage I vapor collection and control system during the gasoline fuel delivery. Penalty: $2,500.00.


In the Matter of Cooperstown Brewing
Order, December 16, 2013
R4-2013-1004-119

Respondent's site's subsurface disposal system discharged to the surface in violation of the conditions of the former owner's SPDES permit in violation of ECL Section 17-0803.
Penalty: $4,000.00, with $2,000 payable and $2,000 suspended.


In the Matter of Springer's Inc.
Order, December 16, 2013
R4-2013-1004-120

Respondent operated an unregistered petroleum bulk storage ("PBA") tank and failed to make hazardous waste determinations in violation of a number of provisions of 6 NYCRR Parts 612, 613, 614 and 371. Penalty: $10,400, with half payable and half suspended.


In the Matter of Amsterdam Printing & Litho
Order, December 9, 2013
R4-2013-1004-122

Respondent violated five hazardous waste handling and related administrative regulations as per 6 NYCRR Parts 372 and 373. Penalty: $7,100.00.


In the Matter of Ronald Schaefer
Order, December 9, 2013
R4-2013-1105-133

Respondent violated the discharge limitations of a SPDES waste water discharge permit on 16 occasions. Penalty: $58,000.00 with $12,000 payable and $46,000 suspended.


In the Matter of Lawrence Eckhardt
Order, December 6, 2013
R4-2013-0820-109

Respondent violated 6 NYCRR Part 608.2, for disturbing the bed and bank of a stream by placing fill without an ECL Article 15 permit. Penalty: $1,000.00.


In the Matter of Terry Jacobs
Order, December 5, 2013
R4-2013-1106-134

Respondent violated 6 NYCRR Part 663.4(31) for constructing a small dock in a freshwater wetland without a permit. Penalty: $500.00.


In the Matter of Shelter Enterprises
Order, November 26, 2013
R4-2012-1029-101

Respondent committed three violations of sections of 6 NYCRR Parts 201-1.7 and 211.11, for operating and air emissions violations for volatile organic compounds ("VOC") and the hazardous air pollutant ("HAP") pentane emissions. Penalty: $33,000.00, payable in seven installments.


DEC Administrative Decisions and Orders

In the Matter of U.S. Energy Development Corporation
Ruling of the Chief ALJ (on Discovery Requests),
DEC No. R9-20111104-150, December 11, 2013

In an interesting discovery Ruling, the Chief ALJ explored the Office of Hearing's authority to govern the schedule and issuance of third party subpoenas under 6 NYCRR Part 622 and the ECL as opposed to the broader discovery authority found in CPLR Article 31. The Chief ALJ ruled that respondent shall serve discovery demands and subpoenas directly on a third party state agency in accordance with all applicable rules including, but not limited to, ECL 3-0301(2)(h) and 6 NYCRR 622.7(b).

The Ruling also addressed the circumstances under which the administrative agency has the power to issue subpoenas versus a court's authority under CPLR Section 2307. The Ruling stated that this CPLR Section does not apply citing Matter of Irwin v Board of Regents of Univ. of State of N.Y. , 27 NY2d 292, 296 [1970]). "Instead, the Department's statutory grant of the subpoena power is examined to determine a party's entitlement to issuance of a subpoena (see id. at 297; Matter of Moon v New York State Dept. of Soc. Servs. , 207 AD2d 103, 105 [3d Dept 1995])."


In the Matter of 428 East 157th Street HDFC
Order No. PBS 2-601195NBT November 27, 2013

The Department's Motion for a Default Judgment was granted and Respondent was ordered to pay a penalty of $10,000.00 for the failure to register a petroleum bulk storage ("PBS") tank in violation of 6 NYCRR Part 612.2.


In the Matter of Grand Concourse East HDFC (1007 Grant Avenue)
Order No. PBS 2-601185NBT, November 27, 2013

The Department's Motion for a Default Judgment was granted and Respondent was ordered to pay a penalty of $10,000.00 for the failure to register a petroleum bulk storage ("PBS") tank in violation of 6 NYCRR Part 612.2.


Weird News

Wind Farms Weaken Hurricanes?

A serious scientific presentation at the annual meeting of the American Geophysical Union raised the idea that there may be positive impacts of large wind farms in decreasing hurricane intensities while also harvesting the potential energy of these storms.

Electric Car Owner Charged with Theft of Juice
A new environmental crime? We will will have to wait and see.

_____________________________________________________________________________________________________________________

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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