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NY Environmental Enforcement Update April 2014, #16

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

Enforcement News

US Supreme Ct. Upholds EPA Interstate Air Pollution Regulation

The Supreme Court reversed the ruling of the Court of Appeals, and upheld the Clean Air Act's "good-neighbor" provision which requires EPA to regulate air pollution from power plants in upwind states when that air pollution impacts downwind states. The Supreme Court further held that EPA's approach to determining each state's relative responsibility for reducing such pollution was a permissible one under the Clean Air Act. NY Attorney General Schneiderman actively supported the EPA position along with other "downwind" states.

Record Settlement in Tronox Fraudulent Conveyance Bankruptcy Case

The US entered into a settlement agreement with the Kerr-McGee Corporation and related entities, in a fraudulent conveyance case brought in the bankruptcy of Tronox Inc. and its subsidiaries ("Tronox"). In December 2013, the Court ruled that historic Kerr-McGee Corporation ("Old Kerr-McGee") fraudulently conveyed assets to New Kerr-McGee to evade its debts, including its liability for environmental clean-up at contaminated sites around the country. Pursuant to the settlement agreement, the defendants agree to pay $5.15 billion to settle the case, of which approximately $4.4 billion will be paid to fund environmental clean-up and for environmental claims. This is reputedly the largest environmental settlement in a contamination case. At least one former Kerr-McGee settlement site is in NY.

Mayor De Blasio Proposes Major Updates to the NYC Air Code

New York City's proposed the most significant changes in the City's Air Pollution Control Code since 1975. The proposed revisions will update emission standards and focus on pollution sources that currently have little or no emission control requirements including: particulate matter generated by commercial char broilers, fireplaces, food trucks, and refrigeration vehicles. The New York City Council Committee on Environmental Protection will hold a hearing in the near future to codify the revisions to the Air Code.

Adirondack Park Agency ("APA") Releases FY 2013 Report

The APA, a significant state environmental agency, has issued its annual report for 2013. In particular, see pp. 12-13, for the report's legal and enforcement summaries.

USDOJ Announces FY 2013 Report and Accomplishments

The Justice Department's Environment and Natural Resources Division (ENRD) released its Fiscal Year (FY) 2013 Accomplishments Report, detailing its work to enforce environmental and wildlife laws.

Haz. Waste Crack Down on Retail Chains Continues (Alameda Co. Superior Court)

In a California civil prosecution of interest, Lowe's Home Centers LLC will pay $18.1 million to resolve a civil enforcement action alleging that more than 118 of its California stores illegally handled and disposed of hazardous waste over a six-and-a-half-year period, according to the California's Department of Toxic Substances Control. Lowe's illegally disposed of hazardous waste, including pesticides, batteries, fluorescent bulbs and other toxic materials. The chain stores routinely sent items such as spilled or returned paint or damaged batteries to local landfills that were not permitted to receive the materials. Similar enforcement initiatives against chain retailers have been gradually appearing in New York (Note: see another Lowe's settlement below).

Lowe's Settles Violations for Lead Generated by Home Renovations (U.S. District Ct. for the Southern District of Illinois)

Lowe's Home Centers has agreed to implement a comprehensive, corporate-wide compliance program at more than 1,700 stores nationwide (including New York) to ensure its contractors minimize lead dust from home renovation activities, as required by the federal Lead Renovation, Repair and Painting (RRP) Rule. The company will also pay a $500,000 civil penalty, which is the largest ever for violations of the RRP Rule, as part of the settlement.

The RRP Rule, which implements the federal Toxic Substances Control Act (TSCA), is intended to ensure that owners and occupants of housing built before 1978, receive information on lead-based paint hazards before renovations begin, and that renovators are properly trained and certified by EPA. Recently, EPA has conducted a nationwide crackdown for RRP violations.

2014-2015 NYS Environmental Budget News

The legislative highlights (and lowlights) of the 2014 NYS environmental budget items include: An increase of the Environmental Protection Fund to $162 million, which is a $9 million increase from 2013 (but still less than requested by the Assembly and Senate; State Parks (NYSOPR &HP) receiving $92.5 million in additional capital funds; and, the failure of the Assembly, Senate and the Governor to reach consensus on Brownfield Cleanup Program reforms and funding the Brownfield Opportunity Areas (BOA) program. BCP negotiations will continue for the rest of the 2014 legislative session.

Need A Summer Read?

Try "The Rule of Nobody, Saving America from Dead Laws and Broken Government," Philip K. Howard, WW Norton & Company.

Enforcement People in the News

NYSDOH Commissioner Nirav Shah Resigns Suddenly

State Health Commissioner Dr. Nirav Shah is leaving his post to become senior vice president and chief operating officer for clinical operations for the southern California region of the Kaiser Foundation Health Plan. Dr. Howard Zucker will assume his duties as Acting Commissioner. He formerly worked as a professor of anesthesiology at Albert Einstein College of Medicine. The impact on the progress (or lack thereof) of the DOH's endless review of natural gas horizontal hydraulic fracturing or fracking is unknown.

DEC ECO Kinney Named Officer of the Year

The National Wild Turkey Federation (NWTF) has named Environmental Conservation Officer (ECO) Jerry Kinney, "2013 New York Officer of the Year." NWTF is an international grassroots, non-profit organization that supports scientific wildlife management and wild turkey hunting. NWTF annually recognizes an officer who has demonstrated outstanding service and contributed significantly to conservation law enforcement.

DEC ECO Grisolini Inducted into Hall of Fame

The New York State Outdoorsmen Hall of Fame (NYSOHOF) presented Environmental Conservation Officer (ECO) Ricardo Grisolini with the "Dave Pierce Memorial Award" which recognizes an individual involved in conservation who has worked closely with youth.

Federal Enforcement

CAA False Statement Conviction (WDNY)

A defendant pleaded guilty to being an accessory after the fact to a false statement under the Clean Air Act. The charge carries a maximum penalty of one year in prison, a fine of $125,000 or both. Defendant was employed as an air sampling technician and a project monitor, and was certified by the New York State Department of Health to conduct asbestos project monitor and air sampling duties. During an abatement project, the defendant colluded with others to falsify the status of asbestos removal in records required under the Clean Air Act (CAA).

Virgin Islands Enters Agreement for Clean Air Act Compliance
(U.S. District Ct. for the U.S. Virgin Islands)

Under a civil enforcement agreement with EPA Region 2, and the USDOJ, the Virgin Islands Water and Power Authority (VIWAPA) entered an agreement to comply with the federal Clean Air Act (CAA) for the Estate Richmond Generating Facility on St. Croix. Compliance will reduce nitrogen oxides (NOx) and particulate matter (PM) emissions. VIWAPA has already spent approximately $4 million to come into compliance with pollution control requirements and will spend at least $2 million more per year to maintain compliance. VIWAPA will also pay a $700,000 civil penalty as part of the agreement.

Fishy Pair Plead Guilty to Fluke Fraud, and Records Falsification (EDNY)

In related pleas, a commercial fish dealer and a fisherman pleaded guilty for systematically under-reporting fluke (summer flounder) harvests as part of a federal Research Set-Aside (RSA) conservation program. The defendants falsified hundreds of records from 2009 to 2011, as part of a scheme to sell illegally harvested fluke. Each will be subject to fines and restitution in excess of $500,000.00 (final totals to be determined).


Hazardous Explosive Dust in New Windsor, NY

A manufacturer of cabinets and countertops was cited by OSHA for 13 serious violations of workplace health and safety standards. 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.

Combustible dust was found on plant pipes, equipment, supports and ductwork. In addition, while spraying adhesives on countertops and molding during the manufacturing process, employees were overexposed to the hazardous chemical methylene chloride. OSHA proposed fines totaling $51,800.

DEC Region 4 Administrative Orders

It was obviously hazardous waste enforcement month at this DEC office. What these light industry facilities appear to have in common was an EPA identification number and their lack of understanding about the minutia of the state and federal hazardous waste regulatory scheme. Despite, the high maximum penalties allowed under ECL Section 71-2705(1)[$37,500, per violation], DEC was quite reasonable in its overall penalty calculations. It is always worth noting that DEC Region 4 is the only DEC Region that regularly releases administrative consent orders. Thus, that office gives at least a limited window into actual DEC enforcement policies.

In the Matter of SUNY Oneonta
Order on Consent, 4/28/14
File No. R4-2014-0219-25

Respondent was ordered to pay a civil penalty of $5,499.00, for eight violations of the hazardous waste regulations including the failure to:

- To make waste determination - 6 NYCRR 372.2(a)(2);
- To properly mark or close hazardous waste containers - 6 NYCRR 372.2(a)(8)(i)(a)(2);
- To have a TSDF designated in writing - 6 NYCRR 372(b)(2)(i);
- To have a transporter designated in writing - 6 NYCRR 372.2(b)(2)(iii);
- To have a written job descriptions for the staff - 6 NYCRRR 373-3.2(g)(4)(ii);
- To have a documented training program - 6 NYCRR 373-3.2(g)(1)(ii);
- To maintain training records - 6 NYCRR 373-3.2(g)(5); and,
- To maintain a contingency plan - 6 NYCRR 373-3.4(c)(5).

In the Matter of Electro Fiber Technologies
Order on Consent, 4/21/14
File No. R4-2014-0313-73

Respondent was ordered to pay the odd civil penalty amount of $3,248.00 for miscellaneous hazardous waste regulatory violations including failures to:
- Properly mark accumulation dates on hazardous waste drums - 6 NYCRR 372.2(a)(8)(ii)(2);
- Have a closure plan - 6 NYCRR 373-1.1(d)(1)(iii) and (iv);
- Properly prepare a hazardous waste manifest - 6 NYCRR 372.2(b)(2)(ii);
- Have a written TSDF authorization - 6 NYCRR 372(b)(2)(i);
- Have a written transporter authorization - 6 NYCRR 372.2(b)(2)(iii);
- Have a written job descriptions for hazardous waste management staff - 6 NYCRRR 373-3.2(g)(4)(ii);
- Have a complete contingency plan - 6 NYCRRR 373-3.2(g)(4)(ii); and,
- Properly prepare a required notice for a hazardous waste shipment -
6 NYCRR 376.1(g)(1)(ii).

In the Matter of Tecta American Weather Guard, LLC
Order on Consent, 4/2/14
File No. R4-2013-0120-12

Respondent was ordered to pay a civil penalty of $5,000.00, for: failure to make a determination that piles of ignitable solid waste stored at its facility were D001 hazardous waste in violation of 6 NYCRR Part 371.1(f)(7)(i) and 6 NYCRR Part 372.2(a)(2); and storage of greater than 1,000 kilograms of non-acute- hazardous waste without a permit is a violation of 6 NYCRR 371.1(f) (7) (ii).

DEC Administrative Enforcement Orders, Decisions and Rulings

In the Matter of Strano Freddy, Joe Stancampiano, and John Dunsmoor
Order of Disposition
DEC Proceeding No. OHMS 67612, 4/29/14

This case is example of an attempt to use the Department's rarely invoked eminent domain powers. Here, DEC was presented with a petition pursuant to ECL 15-1983, which sought to allow the owner of agricultural lands to attain an easement or right of way over another person's property for drainage purposes. In such cases the Department may use the procedures consistent with the Eminent Domain Procedure Law (EDPL) to make a determination as to whether eminent domain is necessary for the drainage of the petitioner's land. If applicable, the Department may then assess the amount of compensation due from the petitioner to the affected landowners.

However, the parties settled their dispute regarding the maintenance of a clogged drainage ditch and the matter was dismissed by the Office of Hearings. But, the dismissal order does outline the history of an obscure and unusual part of the ECL and the state's land use enforcement practices.

In the Matter of Supreme Energy Corporation, Supreme Energy, LLC and Frederick Karam
DEC Case No. 7-1780
Decision and Order, 4/11/14

This lengthy, meandering and sometimes acrimonious case took almost seven years to reach a conclusion as the Hearings Office and the litigants wrestled with numerous evidentiary, discovery and legal issues. In the end, the Commissioner held that Respondents failed: to obtain a MOSF license in violation of Navigation Law § 174(1)(a); to maintain adequate secondary containment at the facility, in violation of Navigation Law § 174(3); and, to pay license fees and surcharges on barrels of petroleum product transferred to the facility, in violation of Navigation Law § 174. However, the import of this Order lies in the combination of high penalties and the application of joint and several liability to the individual corporate officer respondent. Specifically, the Order analyzes and applies the doctrines of corporate veil piercing and responsible corporate officer liability.

Overall, the Respondents were jointly and severally assessed a total civil penalty of $1,269,517, including: $234,900, for the failure to obtain the MOSF license; $469,800, for the failure to maintain adequate secondary containment; and $564,817, for the failure to pay license fees and surcharges plus an additional 1% fee on nonpayment of monthly license fees and surcharges pursuant to Navigation Law §§ 174(7) and 192.

Weird News

Toxic Water Supply Panics Chinese City

This is yet another cautionary environmental tale from over-industrialized China.

First Cow Tipping, Now Smart Car Flipping


NY is Not Hog Heaven

DEC formally adopted a new regulation that prohibits hunting or trapping of free-ranging Eurasian boars. This follows recent new legislation on the subject. New York's own version of the boar war continues.

Pirates Invade the Bronx! ("Radio Pirates," that is)(SDNY)

The US Attorney and the FCC continue to crack down on New York's illegal "pirate" radio stations (operated with the willful and knowing intent to broadcast without an FCC license). Note: the Update has previously reported on the enforcement war being waged against the pirates of the air waves.

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This page contains a single entry from the blog posted on June 7, 2014 3:35 PM.

The previous post in this blog was NY Environmental Enforcement Update March 2014, #15.

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