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NY Environmental Enforcement Update August 2014, Vol. 1, #20

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

Enforcement News

NY Law Combats Illegal Ivory Trade

Governor Cuomo signed a new law to combat the illegal ivory trade. The law bans the sale of elephant ivory and rhinoceros horns, with limited exceptions for certain antiques.

Litigators, FOILers Beware! State Deletes Emails After 90 Days

New York State has instituted a new and "aggressive" email retention policy that will have emails automatically deleted after 90 days, subject to over 200 exception categories. The system is to be administered individually by each state employee (emphasis added). Therefore, unless an employee proactively saves an email it will be deleted if the policy is properly followed. The deletion policy is even more aggressive for emails generated by the Governor's Office.

E-Waste Swamps Recyclers Despite NY Law

NY e-waste recyclers have been overwhelmed by the numbers of old TVs and computer monitors containing cathode ray tubes (CRT) that have been dumped into an unprepared marketplace despite a 2010 law meant to ease recycling.

Nationwide, a new toxic environmental phenomenon is emerging: abandoned e-waste dumps.

Adirondack Park Agency Issues 2013 Annual Report (Includes Enforcement)

Pages 13-14 provide the "APA" Report's legal and enforcement summaries for 2013.

DEC Extends PBS/CBS Proposed Regulations Comment Period

For the first time in almost two decades, DEC has proposed significant changes to update and consolidate Petroleum Bulk Storage (PBS) and Chemical Bulk Storage (CBS) regulations. The proposed changes would clarify existing requirements while broadening the reach of this extensive regulatory and enforcement scheme.

More on Roberto Clemente Park Illegal Dumping

The plot thickens as investigators probe how large quantities of hazardous substances were transported and dumped in an environmental justice neighborhood in Brentwood, L.I.

L.I. Garbage Train Update

As previously reported, a garbage transportation and storage crisis continues in Suffolk County as a shortage of first trucks and now even trains have created a solid waste storage issue in Brentwood in central L.I. This has led to charges of environmental racism by community leaders. Brentwood is an environmental justice community that has recently been beset with environmental problems (see, dumping item above).

Oil Continues to Raise Tensions in Port of Albany

Global Companies, an energy products company with terminals in the area, recently experienced an oil spill that, though fully contained, heightened tensions about oil transport in the area.

Additionally, Global Companies submitted a permit application to modify its Air Title V Facility permit to allow the company to heat petroleum products, including crude oil, residual fuel and biofuels at its facility at the Port of Albany. Due to broad public and community interest, the agency extended the Title V Air Permit comment period.

Ohio and Pennsylvania Crack Down on Oil/Natural Gas Drillers

Pennsylvania and Ohio authorities have recently brought a series of enforcement actions against oil and natural gas producers which may be instructive if horizontal hydraulic fracturing or "fracking" ever comes to NY:

- The Penn. DEP commenced administrative action for improperly monitoring wastewater containment pond leaks in Washington County in southwestern Pennsylvania.

- An Ohio federal judge sentenced a former owner of an oil and gas services contractor to 28 months in jail and a $25,000 fine for deliberately dumping fracking waste in violation of the federal Clean Water Act (CWA). The defendant had already pleaded guilty to one count of making an unpermitted discharge after ordering an employee to discharge toxic wastewater more than 30 times.

State and Local Enforcement

NYC Hit with 960K EBP for State Water Pollution Violations

The Attorney General and DEC entered an agreement with New York City for $960,000 in Environmental Benefit Projects ("EBP") to improve the water quality of the upper East River and Long Island Sound. The funding represents a partial resolution of penalties assessed for the failure to comply with a previously established schedule to upgrade nitrogen pollution controls at a wastewater treatment plant in Queens. The schedule was first included in a 2006 court settlement that required the City to upgrade nitrogen controls at eight of its 14 wastewater treatment plants.

Nassau Co. DA Gets Conviction for Releases to L.I. Sound

A Nassau County landowner pleaded guilty to one count of Endangering Public Health, Safety or the Environment in the 5th Degree, ECL Section 71-2710 (B Misdemeanor) and was sentenced to a conditional discharge with an agreement that he will finish the clean-up of his Glen Cove property under the supervision of DEC. He had released toxic automotive fluids into the ground of his salvage yard. State law requires that fluids like gasoline, motor oil, and transmission fluid be drained and property stored for disposal before disassembling vehicles. The property is located near waterways leading to L.I. Sound.

Aptly Named "Dirtman" Held Liable for Illegal Dumping

The Attorney General won a State Supreme Court ruling holding a landowner and his contractor liable for illegally operating a landfill and discharging pollution into the Croton Falls Reservoir. The contracting company was unfortunately, but prophetically, named "Dirtman."

In Case You Missed It! NJ Company Hit with 160K Bottle Bill Penalty!

Back in January 2014, the N.Y. Attorney General's office entered a significant settlement with a New Jersey-based company for repeatedly violating New York's Returnable Container Act a/k/a the Bottle Bill. An investigation by the AG and DEC revealed that the company collected deposits on beverage containers it sold in NEW YORK STATE but failed to remit 80% of the unclaimed deposit money as required. The company paid a penalty of just under $160,000.

White Water Rafting Enforcement

Among the more obscure areas of environmental enforcement is the state's regulation of white water raft guides and outfitters. Several recent safety violations and a fatality have raised the enforcement profile of this segment of the recreation industry.

Federal Enforcement

NYC Croton System Water Settlement Modified (EDNY)

Several federal and state agencies reached a settlement with New York City to modify a federal consent decree originally entered in November 1998 which required the City to construct a filtration plant for its Croton drinking water supply.

Previously, the City completed construction of a filtration plant and will commence operations no later than May 17, 2015. The consent decree provides for stipulated penalties of $65 million if the deadline is not met and also requires the City to monitor the Croton System and implement NYC watershed protection measures.

Buffalo Area Contractors Sentenced for Criminal CAA Violations (WDNY)

Several additional defendants were sentenced for asbestos related criminal violations of the Clean Air Act ("CAA") associated with the Kensington Towers Apartment Asbestos Abatement Project:

Earnest Johnson was sentenced to two years of probation for related CAA violations. Note: he was the president of the asbestos abatement company hired to conduct asbestos abatement activities at the Kensington Towers abatement project.

Rai Johnson was convicted of violating the Clean Air Act ("CAA") Asbestos Work Practice Standards, was sentenced to time served, 160 days, and two years of supervised release. The defendant was a supervisor at an asbestos abatement company hired to conduct asbestos abatement activities at six buildings at the Kensington Towers Apartment Complex in Buffalo. Each building contained approximately 63,000 square feet of regulated asbestos containing material. Defendant had created phony daily asbestos abatement logs.

Evan Harnden was convicted of a misdemeanor charge of being an accessory after the fact to a false statement under the Clean Air Act, was sentenced to one year probation. The defendant had been employed as a state certified air sampling technician and a project monitor. He certified the phony daily abatement log created by defendant Rai Johnson (see above).

Brian Scott was also convicted of a misdemeanor charge of being an accessory after the fact to a false statement under the Clean Air Act, and was sentenced to one year probation. Like defendant Harnden above, he certified phony daily asbestos abatement logs for the Kensington abatement project.

DuPont Settles CAA Violations in Tonawanda (WDNY)

Under a legal agreement reached with EPA, DuPont will increase compliance with the Clean Air Act, and the Emergency Planning and Community Right-to-Know Act ("EPCRA") at its Yerkes chemical manufacturing facility in Tonawanda, New York. DuPont will also test the smoke stack emissions and pay a civil penalty of $440,000. The company also installed equipment to reduce the emissions of hazardous air pollutants (HAPs) at the facility.

Another Rhino Horn Smuggler Indicted (SDNY)

A Canadian antiques dealer was indicted for conspiring to smuggle rhinoceros horn, elephant ivory and coral. This indictment is part of the ongoing federal crack-down against the illegal ivory trade known as "Operation Crash."

All species of rhinoceros are protected under U.S. and international law and trade in rhinoceros horn is regulated under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), a treaty signed by over 170 countries.

Yonkers Paint Co. Pays RCRA Fines for Leaky Drums (EPA, R2)

A Yonkers paint company has been penalized $90,000 for having approximately 100 corroded and leaking paint and solvent containers in violation of the Resource Conservation Recovery Act ("RCRA") among other federal hazardous waste law violations.

The violations came to light after a fire caused a release into the nearby Saw Mill River.


Tonawanda Explosion Leads to OSHA Fine

OSHA assessed $161,100 in fines following a coke oven gas explosion in a Tonawanda facility that collapsed brick walls, damaged electrical equipment and injured several employees.

OSHA Fines Metal Company for Employee Chromium Exposure

Employees of a Fonda, N.Y. aluminum extruding plant were unsafely exposed to chromium, and other work place hazards. The company faces $53,000 in fines.

DEC Region 4 Administrative Orders

In the Matter of Pest Mall
Order on Consent

Pest Mall is a Georgia mail order company which provides "Do it Yourself" pest control products to exterminators and consumers. In an internet sting operation, DEC staff placed an online order with Pest Mall for an unregistered pesticide (in New York). This, despite a warning on Pest Mall's website that the very same product was "Not For Sale to CT, NY." The delivery constituted a violation of ECL Sections 33-0701 and 33-1301(1)(a) for unlawful distribution and sale of an unregistered (in N.Y.) pesticide.

As per ECL Section 71-2901(1), Pest Mall was assessed a penalty of $2,000, of which $1,000, was payable and $1,000, suspended pending the completion and issuance of a "Standard Operating Procedure" to prevent the online sale of unregistered pesticide products to New York State customers.

Weird News

Solar Energy Plants Burn Birds

A truly sad phenomenon has emerged due to the expanding use of solar reflectors to generate steam and then electricity.

California Water Wasters Sent to Water School!

A California town is enforcing drought driven water shortage regulations by forcing violators to attend "Water School" to learn the error of their ways.

Poison Giant Hogweed Invades NY

DEC is continuing its fight against all invasives. This invasive and toxic plant can grow to between 8 to 14 feet tall and has sap that can burn like acid. Ouch!

Flesh Eating Bacteria Invade Florida Waters!

First sharks, then gators and now this. Beware!

The Red River ... of China - Not Texas!

It's true! Rivers can run red (at least polluted Chinese rivers can).

Kissing Bugs Invade US: But No Romance Results!

Yuck! Here is one bugger you don't want to invite over. Perhaps their other name, assassin bug, is more appropriate.

Sharknado 2

The ultimate environmental hazard returns to invade New York City via this Grade "Z" TV movie sequel. Root for the sharks.

Pollution Makes Male Bass Change Sex

I say no more.


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 November 23, 2014 6:01 PM.

The previous post in this blog was NY Environmental Enforcement Update July 2014, Vol. 1, #19.

The next post in this blog is NY Environmental Enforcement Update September 2014, Vol. 1 #21.

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