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NY Environmental Enforcement Update October 2014, Vol. 1, Issue #22

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

Enforcement News

Drums Along the Mohawk - Riverkeeper to Patrol the Mohawk River

The public interest group, Riverkeeper has vowed to start patrols to search for water pollution on the Mohawk as it already does along the Hudson River.

NY AG to Challenge Nuke Storage Rules

The NY Attorney General joined other states to challenge recently issued Nuclear Regulatory Commission (NRC) rules that govern the long-term storage of highly radioactive nuclear wastes on-site at reactors (including the three Indian Point reactors in Westchester County) for 60 or more years after the reactors close.

Cuomo Admin. Allegedly Edits Fracking Study

Officials in the Governor's office may have altered an otherwise objective study in order to frame the controversial natural gas extraction process known as hydraulic fracturing (fracking) in a more favorable light.

Norlite Continues - Hazardous Waste Incinerator Permit Reissue Challenged

Due to numerous health complaints and a serious history of past environmental violations, local environmental groups have demanded that the Norlite facility comply with a list of operating requirements before DEC reissues a hazardous waste Transport, Storage, Disposal Facility (TSDF) permit.

DEC to Use Discretionary Enforcement for Greenhouse Gas Emissions

In an enforcement guidance letter issued by the New York State Department of Environmental Conservation (DEC), the agency will exercise enforcement discretion for parts of 6 NYCRR Parts 201 and 231, as these pertain to the regulation of greenhouse gas (GHG) emissions due to the recent U.S. Supreme Court decision in Utility Air Regulatory Group (UARG) v. EPA. In that case, the Court held that EPA may not treat GHGs as an air pollutant for purposes of determining whether a stationary source is a major source required to obtain a Prevention of Significant Deterioration ("PSD") or Title V permit. DEC will exercise discretion as outlined until the courts and EPA clarify the status of GHG in the major facility air permit and enforcement schemes.

NYC CEQR Database

The Mayor's Office of Environmental Coordination website now allows for online searches of the City Environmental Quality Review (CEQR) project records database for CEQR projects filed from January 1, 2005 to the present.

National Grid Enters CERCLA Settlement in Saratoga

The utility will undertake an estimated $6.5 million environmental cleanup of coal tar polluted soil and ground water at a former manufactured gas facility under a proposed settlement with the EPA.

NYSDOH Commissioner Issues Rare Emergency Ebola Order

Acting State Health Commissioner Howard Zucker issued a rare Commissioner's Order requiring medical facilities to follow protective protocols to prevent the spread of the Ebola virus. This action was part of the state's overall response to the Ebola threat.

In a related Ebola matter, DEC also issued instructions for the handling and disposal of regulated medical waste (RMW) that may be contaminated by the Ebola virus. The information includes links to relevant NYSDOH and federal regulations and guidance.

State Agency Sued for Administrative Overkill

A NY liquor retailer has sued the NYS Liquor Authority (SLA) for enforcing rules involving out of state liquor sales. The SLA had cited the retailer using a New York regulation that says it can revoke, cancel or suspend a liquor license due to "improper conduct by the licensee." For the environmental practitioner, the case should provide insights into the limits of the state's administrative authority to bring enforcement and impact license decisions.

EPA Head Visits Lake Champlain

EPA Administrator Gina McCarthy vowed to continue efforts to clean up Lake Champlain on a visit to the Lake for a meeting with Vermont residents and politicians. It was unclear if NY representatives were present or even invited.

NYSDOH Sampling Lab Fined for Negligent Results

Local residents were upset to say the least over the $525,000 settlement between the NYS Department of Health and a private contract laboratory for improperly handled water tests at the Dewey Loeffel Landfill superfund site. The site is on the EPA National Priority List (NPL).

Energy Enforcement and Regulation

Improved Crude Oil Cars are Now Used in Albany

Global Partners, the operator at the Port of Albany, has stated it is now only accepting upgraded and sturdier model DOT-111 crude oil tank cars to transport oil from the Bakken fields of North Dakota via the Port. This is a marked safety improvement over the previous models.

More Enforcement Demanded after Selkirk Propane Car Derailment

In a development related to the Port of Albany oil train controversy, vigilance was also demanded after a misplaced piece of safety equipment triggered the derailment of 18 railroad cars at the nearby Selkirk rail yard. The derailed cars included empty propane tanker cars.

Bomb Train Protesters Petition for Summary Abatement

Those seeking to stop the movement of crude oil trains through the Port of Albany sought to have the DEC Commissioner invoke the rarely used emergency remedy of Summary Abatement (ECL Section 71-0301)
In general, if the commissioner may order the cessation of an activity if he finds that it is causing, engaging in or maintaining a condition or activity which presents an imminent danger to the health or welfare of the people of the State, or results in or is likely to result in irreversible or irreparable damage to natural resources. It is unclear whether the Commissioner is swayed by proponents of this action.

Crude Oil Train Safety Ltr. Sent to N. Dakota Gov

The DEC and NYSDOT Commissioners sent a letter to the North Dakota Governor in support of proposed North Dakota regulatory changes that would require oil producers to remove volatile gases from Bakken crude oil prior to shipping the that oil across by rail to New York and other locations. This process reduces the ignitability of the oil.

Joint Crude Oil Train Spill Response Exercises Held

As part of the agencies increased awareness of potential crude oil train spills, DEC conducted a joint oil spill training exercise with Canadian Pacific (CP) railroad, and the Albany Fire Department on the Hudson River to implement emergency response plans for the Port of Albany and other locations.

Port of Albany Air Study Attacked

Experts issued a report which heavily criticized DEC conclusions about the air quality in and around the Port of Albany. This controversy also relates to the continued use of the Port by crude oil trains.

Albany Locals Demand Crude Oil Trains Slow Down

Local officials are calling on the federal transportation secretary to use his emergency authority to limit speeds on crude oil trains that pass through the Port of Albany even before new safety requirements take effect nationwide.

DEC Crude Oil Train Timeline

DEC has provided a handy summary of New York's efforts to address the issues surrounding the increase in crude oil train traffic through Albany and the Port of Albany in the particular.

LNG Draft Regulation Comment Period Extended

The DEC sought public comments on revised proposed regulations for the construction and operation of liquefied natural gas (LNG) facilities in New York State. A 30-day public comment period will begin Nov. 12 and run through Dec. 12. DEC proposes to restrict permitting to facilities with a capacity of no more than 70,000 gallons (the safety threshold used by the National Fire Protection Association (NFPA).

Legislative News

Community Risk and Resiliency Act (A06558/ S06617-B)

The Governor signed the Community Risk and Resiliency Act (CRRA) to strengthen state preparedness for the effects of climate change and help protect communities against severe weather and sea level rise in the wake of Hurricane Sandy and other recent natural disasters. The Act requires State agencies to consider future physical climate risks caused by storm surges, sea level rise or flooding in certain permitting, funding and regulatory decisions.

People in the News

Passing of Two Prominent ELS Figures

The Environmental Law Section mourns the losses of Ernest J. Ierardi and Frank P. Grad.

Ernie Ierardi was a Past Chair of the Environmental Law Section ('84-'85) and a partner in the law firm now known as Nixon Peabody. He was also an early leader in environmental and utility law and held numerous prestigious professional positions. He was held in high regard by both the American Bar Association and NYSBA.

Professor Grad was an environmental law pioneer and Columbia University Professor Emeritus. His accomplishments and contributions to the practice of law are too numerous to list here.

The Section extends its condolences to the families and friends of these two extraordinary individuals.

New DEC Region 4 Director

The DEC has promoted Keith D. Goertz to be the new Regional Director of the agency's Region 4 office in Rotterdam. Previously, he had served as Acting Region 4 Director since May 2014.

DEC Commissioner Moves into Energy Storage Policy

Former DEC Commissioner Denise Sheehan is now a Senior Policy Advisor for The New York Battery and Energy Storage Technology Consortium (NY - Best).

Brownfields Advocacy Group Gets New Leadership

New Partners for Community Revitalization (NPCR) has elected longtime Environmental Law Section member, Val Washington, to be the new president and board chair. She will replace Jody Kass a widely-regarded expert on state and national brownfields policy and co-founder of the organization.

2014 NY Wildlife Officer of the Year Announced

DEC Environmental Conservation Officer (ECO) Mark Colesante of Auburn, Cayuga County, received the 2014 "Officer of the Year" award from the Shikar-Safari Club International, a conservation-based sportsmen organization.

State and Local Enforcement

Chemical Co. Assessed $400k Pollution Penalty by DEC

A Schenectady chemical manufacturer will pay a $400,000 state pollution penalty for air pollution and other violations as per a settlement entered with the DEC. The company also agreed to hire an outside engineer and will test its air emissions stacks for levels of volatile organic compounds (VOC), nitrogen oxide (NOx), carbon monoxide (CO) and soot. This is the fifth major enforcement action in four years brought against the company brought by DEC.

Drug Co. Pays $45k State Air Pollution Penalty

A Rensselaer drug research plant paid a $45,000 state air pollution fine to the DEC for emitting more than 11 times the legal limit of a toxic solvent toluene (more in the DEC Region 4 Administrative Orders Section below).

Tappan Zee Contractor Zapped for Pollution at Port of Coeymans

A company that started work at the Port of Coeymans on the new Tappan Zee Bridge project without necessary state environmental permits has been slammed with a $10,000 fine and also must pay $55,000 to a DEC-selected environmental benefit project (EBP). The violation was first discovered by the Hudson River watch dog group, the Riverkeeper (more in the DEC Region 4 Administrative Orders Section below).

NY AG Sues to Collect Bottle Bill Deposits

The Attorney General commenced a lawsuit alleging that a Monroe County-based beverage company violated provisions of New York's Returnable Container Act, a/k/a the "Bottle Bill," after the company allegedly collected container deposits but failed to remit almost $80k in unclaimed deposits to the State.

Federal Enforcement

Dumping Poultry Offal is Awful for Ramapo River! (SDNY)

The U.S. Attorney and EPA Region 2 entered into a consent decree settling a civil lawsuit against a poultry processing plant in Orange County for violations of the Clean Water Act ("CWA"). The defendants discharged poultry slaughterhouse waste into storm drains, sewers, and Ramapo River tributaries near the Village of Kiryas Joel. Defendants will pay a civil penalty of $330,000 and will submit preventative emergency operation and corrective action plans.

$16 Million Newtown Creek Bankruptcy Settlement (SDNY)

The U.S. Attorney and the EPA Region 2 entered into a settlement agreement with a bankruptcy trust on behalf of Getty Petroleum related parties which resolves Getty's CERCLA and OPA liabilities at the Newtown Creek Superfund Site in Brooklyn and Queens.

Fish Monger Jailed, Pays $500k to NYS Conservation Fund

A federally-licensed fish dealer from Brooklyn was sentenced today in federal court for one count of wire fraud for his role in systematically under-reporting fluke (summer flounder) harvested as part of the federal Research Set-Aside (RSA) Program. He will serve four months in prison followed by three years of supervised release, pay a $6,000 fine, and pay $15,000 towards community service and $510,000 in restitution to the Marine Resources Account of the New York State Conservation Fund. He was also ordered to surrender his federal dealer license and was banned from accessing a NOAA computer system.

EPA Region 2 Administrative Announcements

This new section is a brief summary of the major announcements of the month made by EPA Region 2.

Saratoga Superfund Settlement

EPA announces proposed settlement with Niagara Mohawk Power Corporation for cleanup of Saratoga Springs Superfund site. The value of the cleanup work is estimated at $6.5 million.

Lead Checks Offered

EPA encourages Newburgh families to have soil checked for lead.

L.I. Sound Gets Better

Water quality improves in Long Island Sound as nitrogen pollution declines.

Olean Well Field Cleanup Proceeds

EPA finalizes changes to cleanup plan to address VOCs at the Olean well field Superfund site on the Alleghany River in Cattaraugus County in New York.

Cidra, Puerto Rico Site Cleanup Proceeds

EPA finalizes cleanup plan for Cidra, Puerto Rico Superfund site of VOC-contaminated drinking water.

Onondaga Lake - Lower Ley Creek Cleanup Proceeds

EPA finalizes cleanup plan for lower Ley Creek portion of Onondaga Lake Superfund site, with $17 to $25 million to be spent to address PCBs.

GE Agrees to More Hudson River Study

EPA announces agreement with GE to further investigate upper Hudson River floodplain and conduct a comprehensive study costing about $20.5 Million.

Newburgh Site to be Removed from Superfund List

EPA proposes to remove Newburgh, NY site from Superfund list. The proposal involves $45 million to be spent to address a bankrupt metal processing site on the Hudson River.

DEC Region 4 Administrative Orders

In the Matter of SI Group
Order of Consent
DEC Case No. R4-2014-0131-17

Respondent owns and operates a major chemical manufacturing facility in Rotterdam, Schenectady County and was assessed a civil penalty of $400,000 for air pollution permit, hazardous waste handling and chemical bulk storage (CBS) regulatory violations. These include numerous violations of 6 NYCRR Parts 200, 227, 372.2, 373-3.3 and 598. Respondent has an extensive ECL violation history (see above item in Enforcement News).

In the Matter of PGS Millwork
Order of Consent
DEC Case No. R4-2014-0131-17

Respondent, an architectural and woodworking business in Greenport, Columbia County was assessed a civil penalty of $2,500, for twelve hazardous waste record, manifest, signage and safety regulatory violations including parts of 6 NYCRR Parts 372.2, 374-3.2 and 376.1. Many of the violations involved the handling and disposal of waste (HID) lamps which can contain the heavy metal mercury and other toxic materials.

In the Matter of Fortitech Inc.
Order of Consent
DEC Case No. R4-2014-0610-122

Respondent, a Schenectady food nutrient formulator was assessed a civil penalty of $900, for eight hazardous waste record, manifest, signage and safety regulatory violations including parts of 6 NYCRR Parts 372.2, 374-3.2. Many of the violations involved the handling and disposal of waste fluorescent lighting which can contain the heavy metal mercury and other toxic materials. Respondent was also cited for failing to file a hazardous waste exemption notice for recycled electronics in violation of 6 NYCRR Part 371.1(c)(7).

In the Matter of Aramark Management Services
Order of Consent
DEC Case No. R4-2014-0821-140

Respondent, a pesticide applicator for Hartwick College in Oneonta, was assessed a civil penalty of $1,500, for violations of 6 NYCRR Parts 325.40(h), 325.26(a) and 325.2(d), for failing to place visual notification markers in treated areas, not possessing proper product labels and not having a proper business registration for the applicator's truck.

In the Matter of AMRI Rensselaer
Order of Consent
DEC Case No. R4-2014-0917-153

Respondent, a Rensselaer a drug manufacturer was assessed a civil penalty of $45,000, for exceeding emission standards for toluene during mandated air pollution stack tests in violation of 6 NYCRR 201-6.5(a) (2). This activity constitutes a failure to comply with conditions of the facility's Title V air permit. (see Enforcement News item above).

In the Matter of Tappan Zee Constructors
Order on Consent
DEC Case No. R4-2014-0902-144

Respondent applied for a permit (including a storm water runoff plan) for dredging a portion of the Port of Coeymans to allow for the off-loading and loading of bridge sections for transport for use in the construction of the new Tappan Zee Bridge. By commencing operations without a final water permit, Respondent violated 6 NYCRR 750-1.4(b). But, in a rare instance of prosecutorial discretion, DEC also cited Respondent for violating SEQRA regulations at 6 NYCRR 617.3(a) (for commencing construction of the project and disturbing the site prior to complying with SEQRA). To do this, DEC had to invoke the ECL universal enforcement section at ECL 71-4003, which applies to ECL sections that do not have specific enforcement provisions by law. Respondents were assessed a civil penalty of $10,000 and was ordered to fund an environmental benefit project (EBP) valued at $55,000. The violations were initially reported by the Hudson River Keeper organization.

In the Matter of Columbia County
Order on Consent
DEC Case No. R4-2014-0715-129

Columbia County, the operator of a publically owned treatment works (POTW) was assessed a civil penalty of $2,800 for exceeding its State Pollutant Discharge Elimination System Permit (SPDES) effluent limits in violation of 6 NYCRR 750-2.1(e). The periodic discharge monitoring reports (DMR) required by the permit indicated the violations.

DEC Administrative Enforcement Orders, Decisions and Rulings

In the Matter of Seymour Excavating Inc. and Burton D. Seymour
Commissioner's Order, September 29, 2014
DEC Case No. R6-20130419-13

The Commissioner's granted staff's motion for a default judgment against Respondent corporation pursuant to 6 NYCRR 622.15 and assessed a civil penalty of $14,000, for mining without a permit in violation of the Mined Land Reclamation Act (MLRA) ECL 23-2711(1) and 6 NYCRR 421.1(a), for violating a previous Order on Consent and the failure to file a valid reclamation bond. Respondent was also ordered to submit documentation and a reclamation plan. However, the Commissioner dismissed all causes of action against the corporate CEO for staff's failure to produce evidence of individual liability.

PBS Tank Administrative Hearing Defaults

In the following six administrative enforcement cases, the Commissioner granted Staff's Motion for a default judgment pursuant to 6 NYCRR Part 622.15 and assessed a civil penalty of from $5,000 to $10,0000, for the failure to register a petroleum bulk storage (PBS) tank in violation of 6 NYCRR 612.2. Penalties varied based on the length of the time the tank was not properly registered.

In the Matter of 101-09 West 115th Street Housing Development Fund Corporation
Commissioner's Order, October 14, 2014
DEC Case No. 2-469750BT

In the Matter of 2477 Grand Ave. Corp 2477 Grand Ave. Corp.
Commissioner's Order, October 14, 2014
DEC Case No. PBS 2-609696C

In the Matter of 163 Lefferts Place Housing Development Fund Corporation
Commissioner's Order, October 6, 2014
DEC Case No. PBS 2-608521YW

In the Matter of 75 & 81 Orchard Associates LLC
Commissioner's Order, October 6, 2014
DEC Case No. PBS 2-097721NBT

In the Matter of EV 1st Avenue Properties Owner, L.P.
Commissioner's Order, September 29, 2014
DEC Case No. 2-609074YW

In the Matter of XHIKU, LLC
Commissioner's Order, September 22, 2014
DEC Case No. 2-605692NSC

Weird News

Giant Crab Spotted in UK? Debunked!

This viral image brought to mind an earlier environmental exploration of our primal fear of gigantic crustaceans - "Attack of the Crab Monsters."

Bill Gates Needs New Operating System - Shovel 1.0

The world's richest man has been cited by Wellington, Florida for the improper storage of horse manure at his home and storing manure too close to a waterway.

More Giant African Land Snail News

To follow up on past items, this real life monster and invasive species continues to slowly - ever so slowly - slime its way up the Florida coast.

More Big Foot News

Approximately 20% of Americans believe that the mythical Sasquatch exists. This and other fascinating Big Foot facts were bandied about at the recent Chautauqua Lake Bigfoot Expo held in Chautauqua, New York. See you there next year.


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 December 6, 2014 6:31 PM.

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

The next post in this blog is NY Environmental Enforcement Update November 2014, # 23.

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