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NY Environmental Enforcement Update February 2014, #14


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


Enforcement News for February

DEC Proposes Environmental Monitor Policy

DEC proposed the first changes in its monitoring policy since 1992. The 60-Day Comment Period Runs to April 14, 2014. The use of Monitors has been periodically criticized as unfair and burdensome to regulated entities since its inception.

The four proposed criteria to determine the need for a monitor are where:
- environmental monitoring is required by law,
- the material at the site is a concern due to its characteristics or quantity,
- there are concerns with the compliance history or past practices of the regulated entity,
- DEC determines the regulated facility, site or activity needs additional oversight.

Proposed monitoring services will be provided by qualified:
- DEC employees who operate under DEC supervision;
- individuals who are employed by another governmental agency approved by DEC, operating under DEC supervision;
- entities whose services are directly contracted by DEC, operating under DEC supervision; and
- entities whose services are directly contracted by the regulated entity, subject to DEC's initial and continued right of approval, operating under DEC supervision.


NYCDEP Dry Cleaner Disclosure Rule Takes Effect

A new rule promulgated by the New York City Department of Environmental Protection (NYCDEP) took effect requiring the City's approximately 1,400 dry cleaners to post signs disclosing the primary chemicals used in the dry cleaning process. The signs are to list information including the chemicals and a link to information about their potential health effects.


Texas Fracking and Air Pollution Enforcement

While controversial authorized hydraulic fracturing, or "fracking," will not happen in NY before 2015 (at the earliest), it is worth noting that fracking derived air emission regulation and enforcement are significant issues in Texas' Eagle Ford Shale region.


Costco to Pay $60k for Selling Banned Pesticides

The Costco Wholesale Corporation will pay a civil penalty of $60,000 after a NYSDEC investigation revealed that the company sold banned pesticides which are specifically banned from sale on Long Island. The bans are especially relevant for the protection of Long Island's sole source aquifer. The company was also ordered to remove the pesticides at issue from all its stores throughout the region and to issue a recall notice to its member shoppers. If there were any doubts about the violation, the product's label literally read, "Not for sale, sale into, distribution and or use in Nassau, Suffolk, Kings and Queens counties of New York" (emphasis added). The penalty level was partially determined by the number of banned product containers in stock in Costco's stores (over 1,000 containers were estimated).


Enforcement People in the News

Emily Lloyd Re-appointed NYCDEP Commissioner

Ms. Lloyd returns to her old position as NYCDEP Commissioner in the new de Blasio administration after originally serving in that post from 2005 to 2009. Previously, she also served as the New York City Department of Sanitation Commissioner from 1992 to 1994.


Federal Criminal and Civil Enforcement

Operation Crash Slams More Alleged Rhino Horn Smugglers (SDNY)

This federal investigation continues to expose the international criminal conspiracy to smuggle ivory which based on these indictments allegedly stretches to Hong Kong and the Chinese mainland. Here, one of the defendants also allegedly tried to bribe a federal agent.


SPECIAL FEATURE: Selected OSHA/NYSDOL Violations

Explosion at Syracuse Waste Water Treatment plant - Man Dies

A September 2013 explosion at the Canastota Wastewater Treatment Plant killed one worker and injured another as contractors were attempting to replace piping inside a methane gas dome in a confined space. One contractor was issued three serious citations with $14,700 in proposed fines. The other was issued seven serious citations with $31,020 in fines. A serious violation occurs when there is substantial probability that death or serious physical harm could result from a hazard about which the employer knew or should have known.


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 Village of Athens
Modification of Consent Order, February 6, 2014
R4-2001-0313-35M5

The Department lifted a moratorium on new sewer hookups and extended a compliance schedule for sewer line construction due to the Village's past performance and in deference to unavoidable cold weather delays.


In the Matter of Lowe's Home Centers
Order on Consent, February 6, 2014
R4-2013-0927-118

Respondent, a retailer, violated ECL 33-1301.1(b) by offering for sale, nine damaged containers of general use pesticides and was assessed a civil penalty of $1,000.


In the Matter of Cherry Valley-Springfield Central School District
Order on Consent, February 7, 2014
R4-2014-0110-2

Respondent municipality exceeded various SPDES permit parameter effluent limits on approximately sixty occasions in violation of the waste water treatment plant's SPDES permit and 6 NYCRR Part 750-1.4. A civil penalty of $25,313 was assessed with $5,063 payable and the balance suspended conditioned on compliance with the Order.


In the Matter of Town of Rotterdam
Order of Consent, February 25, 2014
R4-2014-0117-7

Respondent municipality violated 6 NYCRR Part 750-2.8(a)(2) by failing to maintain the above ground sewer main that was involved in two separate breaks and violated ECL Section 17-0803 when sewer main discharged untreated sewage in those incidents. A civil penalty of $2,200 was assessed.


DEC Administrative Decisions and Orders

A full listing of recent decisions can be found on the DEC website.


In the Matter of Corona Heights Trading Inc.
Order, February 20, 2014
DEC File Nos. R2-20090522-317 & R2-20090713-434

In an unusual legal repudiation, the Commissioner reversed the ALJ's report and held that a violation of an existing consent order can warrant a separate administrative penalty in addition to any unpaid or suspended penalties left over from the underlying consent order. The ALJ had originally found that the DEC was only entitled to an unpaid portion of the original payable penalty plus the suspended penalty for the violation of the Order due to a failure to remit the full payable penalty. The Commissioner disagreed and noted that the ALJ had confused the suspended penalty provision of the original order with stipulated penalties that set predetermined penalties between the parties. Based on the standard penalty criteria the Commissioner assessed an additional $5,000, for the violation of the consent order as an independent violation of ECL 71-2907(1) and ordered the payment of the remaining $10,500 combined unpaid and suspended penalty. Respondent did not appear in response to a 6 NYCRR 622.12, motion for order without hearing (granted by the Commissioner as well).


In the Matter of UNS Auto Repairs Inc., Masood H. Najmi, George E. Ampratwum, Fatai Yinusa, and Gary V. Wongbong
Order, February 6, 2014
DEC Case No. CO2-20100615-19

Respondents completed 979 onboard diagnostic (OBD) II inspections of motor vehicles using noncompliant equipment and procedures in violation of 6 NYCRR 217-4.2. OBD inspections are critical for determining a vehicle's air pollution emissions compliance and the efficient performance of major engine components. After a complex analysis based on past rulings, a combined payable civil penalty of $171,000, was assessed on a pro rata basis against various individual corporate and individual defendants. However, only $36,000 of the total was assessed against the individuals only because of the doubt cast on the legal existence of the corporate defendant.

Note: Based on prior holdings, the Commissioner continues to refuse to apply joint and several liabilities among the respondents in Part 217 OBD proceedings.


In the Matter of U.S. Energy Development Corporation
Ruling of the CALJ Further Amending Discovery Schedule, February 12, 2014
DEC File No. R9-20111104-150

This ruling modifies this actions extensive discovery schedule including the service schedule for subpoenas below in the prior Chief ALJ Ruling of February 4, 2014.


In the Matter of U.S. Energy Development Corp.
Ruling of the Chief Administrative Law Judge on Motion for Issuance of Subpoena Duces Tecum, February 4, 2014
DEC File No. R9-20111104-150

The Chief ALJ granted Respondent's motion to issue a subpoena to another state agency in accordance with previous rulings in this action. Respondent (generators of hydraulic fracturing or fracking wastes upstream in PA.) seeks discovery from the NYS Office of Parks, Recreation and Historical Preservation to support its various defenses involving the causation of alleged stream pollution violations. The Chief ALJ had ruled that CPLR 3101[a] provided for the issuance of a subpoena duces tecum by leave of the ALJ pursuant to the Department's statutory grant of the subpoena power (see Matter of U.S. Energy Develop. Corp. , Ruling of the Chief ALJ on Discovery Requests, Dec. 11, 2013, at 4-5 [citing ECL 3-0301(2)(h)]; see also ECL 71-1709[1]; see generally Matter of Irwin v Board of Regents of Univ. of State of N.Y. , 27 NY2d 292, 296-297 [1970]; Matter of Moon v New York State Dept. of Soc. Servs. ,207 AD2d 103, 105 [3d Dept 1995]).


Weird News

Pot Farmer Gets 6 Years for Using Rat Poison, Other Nasty Stuff (E.D. of California)

A Mexican national was sentenced to six years in prison for among other offenses: releasing rat poison and FIFRA restricted use insecticides in connection with a large illegal marijuana farm in the Lilly Canyon area of the Sequoia National Forest.

Among the chemical poisons and restricted use pesticides used on the farm were: zinc phosphide, a substance so toxic that a single swallow can kill a small child, and; carbofuran, where the ingestion of a single grain will kill a bird and one quarter of a teaspoon is fatal to humans. Who says marijuana is harmless?!

_____________________________________________________________________________________________________________________

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 April 13, 2014 5:17 PM.

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