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NY Environmental Enforcement Update March 2014, #15

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

Enforcement News

Tonawanda Coke Sentenced for CAA-RCRA Criminal Fine (WDNY)

Tonawanda Coke Corporation was sentenced to pay a $12.5 million penalty and $12.2 million in community service payments for criminal violations of the Clean Air Act (CAA) and the Resource Conservation and Recovery Act (RCRA). The sentence followed a conviction in March 2013 on 11 counts of violating the CAA and three counts of violating the RCRA. The facility's Environmental Control Manager was sentenced to one year in prison, 100 hours of community service, and a $20,000 fine for 11 counts of violating the CAA, one count of obstruction of justice and three counts of violating the RCRA.

SI Group Fined Again for Pollution Violations (R4)

A Rotterdam, NY chemical manufacturer is paying its fourth state pollution fine in three years to the DEC. A $75,000 civil penalty was assessed with $10,000 suspended for water pollution releases to the Mohawk River as well as violations of SPDES and RCRA permits and the failure to timely report a hazardous substance release as per 6 NYCRR Part 595.4(a). Since March 2011, SI has been assessed a cumulative $275,000.00, for various water and air pollution violations at its main plant in Rotterdam. The Order on Consent is available online (see In the Matter of SI Group, No. R4-2014-0131, 3/19/14).

Adirondack Park Agency - 2013 Legal Division Annual Report

The APA Annual Report including 2013 enforcement statistics is now available via the APA web site.

Proposed Part 570 LNG Public Hearing Summary Issued

In the Matter of Part 570 (Liquified Natural Gas), the Hearing Report regarding the DEC proposal to establish a NY permitting program for the safe siting, construction, and operation of liquefied natural gas ("LNG") facilities and transportation of LNG, is now available.

Enforcement People in the News

Environmental Bar Loses Pioneer David Sive

The Environmental Law Section extends its condolences on the passing of David Sive to his family, friends and many colleagues. David's contributions to our profession are too lengthy to be listed here. Among his many accomplishments, he was a founder and significant contributor to the Environmental Law Section. His experience and wise counsel will be missed by all.

Steve Tambini, New Executive Director of Delaware River Basin Commission (DRBC)

Mr. Tambini, an experienced civil and environmental engineer, will be only the fourth executive director in the DRBC's 53-year history. The commission is represented by the basin states (Del., N.J., N.Y., and Pa.) and the U.S. Army Corps of Engineers' North Atlantic Division.

State and Local Enforcement

Illegal Tree Toppers to PAY for the View!

The NY Attorney General announced a court-ordered settlement that requires a Yonkers-based tree service to pay sanctions valued at $64,000 for illegally entering a State park in Westchester County and removing the tops of approximately 34 trees. Three private landowners who hired the tree trimmers to improve their views of the Hudson River (previously blocked by the trees in question) are contributing $24,000 toward this settlement. The company had previously been held liable in 2012 in Westchester Supreme Court for illegal entry into the park, unauthorized tree cutting in violation of NY environmental and public land laws, as well as for common law trespass.

Dead Bird Dumpers Nabbed

Two defendants were issued tickets by DEC for the illegal disposal of approximately 200 dead game birds on private land. The birds were the unused left-overs from a dinner held by a local bow hunting club. But, because the birds were legally harvested, the pair was cited for the illegal disposal of solid wastes as per 6 NYCRR Part 360, rather than a fish and wildlife violation.

Western NY Man Charged with 190 Alleged Wildlife Violations

The DEC and the US Fish & Wildlife Service executed a criminal search warrant against an individual that was alleged to be in unlawful possession of numerous live turtles and birds of prey among many other live animals and animal parts. Federal prosecution is pending for the illegal possession of bald and golden eagle parts. Defendant is a taxidermist.

Federal Criminal and Civil Enforcement

Feds File Suit for UST Violations (EDNY)

A federal civil RCRA complaint has been filed against two individuals and 15 related corporate entities for violations of the federal leak prevention requirements for underground storage tanks at four gas stations on Long Island as mandated under the RCRA. This prosecution may mark a new trend as the underlying violations are usually prosecuted under state rather than federal law.

Operators Foul Up Water System in SDWA Action (SDNY)

Defendants operated a public water system serving a development in Deerpark, Orange County and admitted to violations of the Safe Drinking Water Act ("SDWA") by failing to monitor and treat water, make reports, take corrective action, and maintain a certified operator. The defendants agreed: to provide the Government with a lien on property in the amount of $50,000; to turn over all records relating to the water utility to new operators; and to never again own or operate a public water system. The deficiencies led to "boil water" orders for water consumers among other problems.

Bankrupt Kodak Reaches CERCLA and RCRA Bankruptcy Settlement (SDNY)

The bankrupt Eastman Kodak Corporation entered three settlements in Chapter 11 proceeding resolving serious environmental liabilities incurred under various federal environmental laws at several Kodak locations. Kodak will fund a $49 million trust for clean-up at the Eastman Business Park site and the Genesee River. DEC also agrees to fund any additional costs of clean-up between $49 million and $99 million and Kodak and DEC each agreed to pay half of any costs above $99 million. Historically, Kodak commenced industrial operations at some of these sites in the late 19th century.

Selected OSHA/NYSDOL Violations

Hazardous Chemical Exposure Violations

Diversified CPC International Inc. was cited by OSHA for 15 serious violations of the process safety management standard at the chemical manufacturer's Sparta, NJ production facility. The company faces $73,500 in proposed penalties for exposing workers to hazardous chemical risks. The majority of the violations relate to potential hazards stemming from the use of liquefied petroleum gases, fluorocarbons and dimethyl ether.

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 SI Group, Order, R4-2014-0131-17, 3/19/14 (see Enforcement News above)

In the Matter of St. Mary's Healthcare Order, R4-2014-0115-5, 3/25/14

Respondent failed to make a hazardous waste determination for generated wastes including: Lindane soap; used Nicotine patches; and packing material for the drugs Nicotine and Warfarin, in violation of 6 NYCRR Part 372.2(a)(2). Respondent had been disposing of the wastes with its regular commercial trash and was assessed a civil penalty of $7,999.00 with $6,400 payable and the rest suspended. This is another example of a non-industrial commercial operator that may not be aware that its business practices invoke state and federal hazardous waste regulation.

DEC Administrative Decisions and Orders

In the Matter of Best Alignment Auto Repair, Inc., and Mohamed C. Diallo
Order, 3/20/14
DEC Case No. CO2-20100615-29

Respondent violated onboard diagnostics (OBD) standards and 6 NYCRR 217-4.2 by operating an official emissions inspection station using equipment and procedures not in compliance with Department procedures and standards for 128 vehicle inspections using noncompliant equipment and procedures and was assessed a civil penalty of $30,000.

In the Matter of Fordham Road Concrete Corp., and Arthur George Reis
Ruling, 3/4/14

In an interim ruling, the ALJ again demonstrated the limits of a Department Motion for an Order without Hearing (6 NYCRR Part 622.12) by applying the summary judgment standard and concluding that staff's motion must, in large part, be denied because of issues if fact raised by Respondent. DEC had commenced an action for numerous petroleum discharge and PBS violations. A number of violations remain to be adjudicated and a final hearing report will combine the results of this Ruling and future findings for all violations.

In the Matter of Anderson, George and Douglas Anderson
Order, 3/6/14
DEC Case No. R9-20110922-36

The Commissioner granted staff's motion for a 6 NYCRR Part 622.12 Order without hearing and held Respondents jointly and severally, to have violated ECL Part 23-2711(1) by mining without the required ECL permit. Upon review of the Department's Civil Penalty Policy DEE-1, the Commissioner raised the assessed civil penalty from $50,000 (the ALJ's recommendation) to $80,000, due to the severity of the violation and past history of non-cooperation among other factors. Respondent was also ordered to either submit a permit application or cease mining and undertake reclamation.

In the Matter of Bardin, Cindy A.
Order, 3/5/14
DEC Case No. OHMS 2013-68159

This Administrative Order follows a court ordered administrative hearing following a denial of a licensee's application to renew two special fish and wildlife licenses issued by the DEC Division of Fish, Wildlife & Marine Resources (DFWMR) issued in accordance with Article 11 of the ECL.

The DFWMR Director had denied the renewal requests by letter, citing noncompliance with: the license conditions; a previous consent order; and violations of the ECL. The licensee then sought relief via a CPLR Article 78, after the DEC denied a request for a hearing. Note: neither the ECL nor DEC regulations provide for a hearing for the denial of a license renewal in this license category.

The Supreme Court agreed that no statutory or regulatory provision requires a hearing to under these circumstances. However, the Court "analogized the facts in this case to those involving revocation of a license," and then held that a hearing must be held as a matter of due process. (see Matter of Bardin , Sup Ct, Washington County, March 8, 2013, Pritzker, J., Index No. 19481).

Subsequent to the Hearing, the Commissioner still upheld the original denial of the requests to renew the licenses. The former licensee had held licenses to possess wild animals including mountain lions and tigers and bears (Oh my!).

In the Matter of Ash, Jeffrey
Order, 3/5/14
DEC CASE No. OHMS 2013-68434

In a special license renewal denial situation similar to the Bardin hearing (above), the licensee also commenced a CPLR Article 78 to challenge the denial and seek a hearing not offered by law. However, here the licensee and the DEC entered into an Order of Settlement discontinuing the Article 78, and compelling an administrative hearing on the denial. Regardless, the outcome of the Hearing was the same as in the Bardin matter as the Commissioner upheld the original denial due to various dangerous incidents involving the former licensee's possession of wild animals, including bears.

In the Matter of Mahopac Scrap and Recycling Inc., and William R. Boyar, Sr.
Order, 3/5/14
DEC Case No. CO 3-20111215-13

Respondent owner-operator, but not the dissolved corporation, was held to have violated 6 NYCRR 360-12.2(d) and assessed a $5,000 for failure to file an annual report for calendar year 2010 for the a solid waste management facility at 205 Myrtle Avenue, Mahopac Falls, New York.

Weird News

Banning Electric Car Stores

Electric car manufacturer Tesla favors stores or mall kiosks to retail its electric cars. Such operations are much cheaper and faster to establish and do not require extensive inventory, parts and service departments or a large lot and building to contain all of those components. Several states have already banned Tesla style retail stores at the behest of the auto dealership industry (which is compelled to maintain all of the overhead that Tesla does not). The New York's legislature was also weighing such a legal ban despite the state's commitment to the reduction of greenhouse gases. But, at press time, state leaders and lobbyists may have reached a compromise to allow Tesla to retain its five existing NY retail stores. The Update will continue to follow this matter.

Cow Flatulence on the Greenhouse Gas Reduction Agenda

We all knew this was coming. Peeeyew!

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 May 11, 2014 2:11 PM.

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