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NY Environmental Enforcement Update July 2014, Vol. 1, #19

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

The month's Update introduces a new feature: EPA Region 2 Administrative Settlements/News. In addition, the Environmental Law Section has published an E-Book entitled "NY Environmental Enforcement Update 2013 Annual Report" which is a compilation of the monthly 2013 Updates and can be found on the ELS website (click on title in the left margin menu) at http://www.nysba.org/Environmental/ or directly downloaded as well.

Enforcement News

GE Settles Hudson River Liability

General Electric Co. (GE) will pay $7.95 million to settle part of a federal lawsuit filed in 2009 by several Saratoga County municipalities that shut down or switched water suppliers when GE began dredging PCBs from the Hudson River. This river dredging is part of the federally mandated $1 billion Hudson River NPL Site dredging project (an element of GE's CERCLA settlement with EPA).

Corning Enters Consent Order for Historic Contamination Study

Corning Incorporated entered an Order with DEC to perform an environmental study on local properties including a school. Elevated levels of lead and other contaminants were discovered during a soil excavation undertaken as part of the Corning-Painted Post East High School expansion project. Ash, glass and brick with hazardous levels of lead and cadmium were also detected.

Seasonal Shut Down of Indian Point Nuke Plant Proposed to Save Fish

DEC made this controversial proposal as part of the operator's SPDES (water discharge) permit applications to prevent harm to Hudson River fish populations. The shutdowns would occur during the state's peak power summer usage periods.

Diesel Truck Inspections in Albany EJ Area

DEC Conservation Police conducted a diesel truck pollution prevention detail in South Albany as part of Operation ECO-Quality. This Operation has helped environmental justice (EJ) communities evaluate and address environmental conditions via vehicle checkpoints and roving patrols to inspect diesel trucks for compliance with clean air standards and other relevant laws. DEC also inspects small and mid-sized regulated air emission sources in low-income and minority communities as part of the program.

LI Garbage Truck Shortage Means Garbage Trains?

DEC issued an unusual 30 day "Emergency Authorization" permitting the temporary establishment of a rail trans-loading operation at an industrial site in Brentwood, Suffolk County. This would alleviate a backlog of solid waste on eastern Long Island. The emergency allows for the loading of wrapped bales of solid waste into rail cars with sealed lids to facilitate the removal of the stockpiled solid wastes.

DEC Pesticide Policy Takes Effect

As previously announced in June DEC released the Long Island Pollution Prevention Strategy (Strategy), the plan for a new pesticide pollution prevention approach on Long Island. The overall goal of the Strategy is to protect water quality from pesticide-related impacts while continuing effective pest management on Long Island.

DEC Cracks Down on Illegal Hudson River Fishing

During April-May, DEC Officers stopped more than 400 fishermen and ticketed about 60, as part of "Operation River Run," an effort to protect the spring migrations of fish species in the Hudson River watershed, including eels. The illegal taking of young eels has increased substantially due to the large demand of the Asian food market.

DEC Workers Spied on by Management

DEC staff has filed a union grievance challenging the state's use of surveillance cameras to enforce work place time rules.

DEC Warns about Phosphorus Limits

DEC has made several press releases reminding the public that new limits and restrictions are in place related to phosphorus limits. DEC reminds all that the recent detergent and fertilizer runoff prevention law is in effect. Recall also that the related dishwater runoff restrictions are in effect as well.

Bug Infested Firewood Seized/Destroyed

The DEC and the NYS Department of Agriculture and Markets (DAM) confiscated and destroyed infested firewood and ash logs located at an Ulster County firewood dealer. The goal is to prevent an additional infestation of the emerald ash borer (EAB), an invasive Asian species that kills trees. This continues the state's war against this environmental and economic threat.

Legislative Update

Geologists May Now Certify Remediation Projects

A proposed law that would provide for the professional licensing of geologists has passed both houses of the legislature and awaits action by the Governor (See, Bill Nos. A 4753D / S 3810D, http://public.leginfo.state.ny.us/menugetf.cgi, enter Bill No. for text/status). Currently, only NY "Professional Engineers" are licensed to certify most environmental remediation projects performed under DEC supervision.

People in the News

DEC Gets New Assistant Commissioner of Administration

Jeffrey Stefanko has been appointed as the new Assistant Commissioner of Administration for the DEC. His duties will include directing all staff and programs within the Office of Administration, which includes the Divisions of Management and Budget Services and Operations.

DEC Lieutenant Receives EPA Bronze Medal

DEC Lieutenant David Clarke received the US Environmental Protection Agency's (EPA) Bronze Medal for outstanding work related to the illegal dumping of 8,100 tons of construction and demolition debris. That material was dumped on a property in Frankfort, N.Y.

ECO Sean Reilly is "Officer of the Year"

DEC Environmental Conservation Officer (ECO) Sean Reilly received the 2013 "Officer of the Year" award from the Northeast Conservation Law Enforcement Chiefs Association (NECLECA).

DEC Oil Attorney Goes to Worker's Compensation

DEC Attorney Scott Caruso (f/k/a Scott Owens) is leaving the agency for a position as staff attorney with the NYS Worker's Compensation Board. Scott spent much of his legal career addressing petroleum spill and petroleum bulk storage enforcement and regulation. His expertise will be missed (source: telephone call with Scott Caruso).

State and Local Enforcement

Upstate Waste Carting Company Settles AG Antitrust Charges

The NY Attorney General's office entered into a settlement with a waste hauler resolving restrictive contracting practices and unlawful restraint of competition. The settlement agreement also requires more open business practices in order to rejuvenate competition in the industry.

Federal Enforcement

Under Reported Fluke Convictions is No Fluke (EDNY)

A federally-licensed Long Island fish dealer and its employees pleaded guilty today in federal court to federal felonies stemming from their role in systematically under reporting fluke (summer flounder) harvested as part of the federal Research Set-Aside (RSA) Program. The crimes included falsification of records and Lacey Act false labeling. The defendants will be subject to between $222,000 and $276,000 in combined fines, restitution and community service.

Onondaga Lake NPL Clean Up Continues

EPA proposed a PCB cleanup plan for Lower Ley Creek portion of the Onondaga Lake NPL Site located in the Town of Salina.

Responsible Parties Continue Mercury Clean Up

The Second Phase of cleanup work is to start at the Mercury Refining NPL Site located in the Towns of Colonie and Guilderland near Albany. The cleanup of the Site is being conducted by responsible parties with oversight by the EPA at an estimated cost of $9.3 million.

PR Junkyard Must Control Waste Liquids

EPA Region 2 reached a legal settlement with an auto junk yard in Puerto Rico for alleged violations of federal hazardous waste law. Respondent will make site improvements to control runoff and invest $133,000 to install equipment that will clean, remove and store of hazardous liquids generated by scraped vehicles. It will also pay a $29,000 penalty.

IBM Settles Up for Clean Up

The District Court of the Southern District approved a legal settlement agreement between EPA and International Business Machines Corp. (IBM). IBM will cleanup and reimburse EPA for past costs at the Shenandoah Road Groundwater Contamination NPL Site in East Fishkill. IBM previously used the site for an industrial cleaning operation that allowed waste chemicals to be released into a septic tank and pit.

Cleaning Co. Hit with $375k Pesticide Penalty

EPA Region 2 reached a settlement with Air Techniques, Inc. of Melville, resolving federal pesticide violations. Respondent is a wholesale cleaner and used a surface disinfectant to clean instruments, equipment and surfaces in dental offices and medical facilities, sold unregistered pesticides and imported pesticides into the U.S. without proper notification. The company will pay a $375,000 penalty.

DEC Region 4 Administrative Orders

DEC Region 4, is currently the only DEC Regional office that regularly posts all administrative enforcement consent orders and settlements. While limited in scope, this data can be a useful window into the agency's enforcement policies statewide.

In the Matter of Terri Gargano d/b/a Scott's Lawn Service
Order on Consent
DEC No. R4-2014-0506-112

Respondent violated ECL §33-1301.8-a by engaging in the commercial application of pesticides without being registered with the Department. A civil penalty of $1,000.00 was assessed in accordance with ECL § 71-2901(1).

DEC Administrative Enforcement Orders, Decisions and Rulings

In the Matter of Florence Edelstein,
Commissioner's Order
DEC File No R2-20130513-183

Respondent guaranteed an adverse holding by failing to respond or file an answer to a DEC enforcement action involving petroleum bulk storage violations at 25 NYC residential properties. Most conspicuous was the failure to accurately register each facility, in violation of 6 NYCRR 612.2, which resulted in a combined assessed penalty of $113,500.

However, most interesting was the Commissioner's modification of the ALJ's hearing report to hold:
1. That where a discrepancy exists in total violations between the staff's initial Notice of Violation (NOV) and the following motion papers, the motion papers govern; and
2. That the period of penalty calculation (per day) runs from the last date of staff's inspections (of the 25 properties) to the filing date of the complaint (not through the course of the proceeding). The Commissioner did note that this calculation period is "conservative."

In the Matter of Green Thumb Lawn Care, Inc.,
Commissioner's Order, 7/10/14
DEC File No. CO7-20060824-1

This matter involves an Article 33 enforcement case that fizzled down to a quibble over penalty calculations after more than ten years of administrative and civil litigation. What remains however is an interesting dissertation on the right (or lack thereof) of the DEC to recover attorney fees in an administrative enforcement hearing. Specifically, the Commissioner held that "Absent statutory or other legal authority, or a written agreement, that specifically authorizes the recovery of attorneys' fees - and staff has not cited any such legal authority or agreement - such fees are not recoverable." It should be noted that general cost recovery authorities do exist elsewhere in the ECL. But, the pesticide enforcement provisions at ECL § 71-2907, do not specifically provide for attorney fee recovery.

Weird News

How Many I.C.E Agents Does it Take to Seize a Land Rover? Answer Below!

A Guilderland, NY man was surprised when ten (count em! ten!) Immigration and Customs Enforcement (ICE) Special Agents of the Office of Homeland Security seized his used British-made Land Rover light truck. Allegedly, the vehicle had been unlawfully imported by a previous owner and did not meet U.S. emissions and safety standards. But does it take ten agents to fetch one light truck?

Giant African Land Snails Arrive in SoCal by Air (You Have Been Warned! Again!)

As noted in prior issues of the Update, this truly gross invasive species is spreading. But, now we also learn that it is an eatable West African delicacy. Bon appetite!

Pythons Continue Stranglehold on Florida Ecosystem

This destructive and dangerous invasive species continues to make itself at home in parts of Florida. Solutions are few.

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This page contains a single entry from the blog posted on September 27, 2014 4:59 PM.

The previous post in this blog was Fracking Supporters See Continued Judicial Obstacles.

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