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NY Environmental Enforcement Update November 2014, # 23


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

Enforcement News

Two Car Companies Pay Highest CAA Civil Penalties Ever

Car manufacturers Hyundai and Kia (the "Companies") used inaccurate data to falsely demonstrate compliance with Clean Air Act (CAA) emissions standards. They also miscalculated higher fuel economy and lower greenhouse gas emissions (GHG). The Companies then used the dubious GHG data to claim more GHG emission credits than they were entitled to.

Hyundai and Kia will pay a civil penalty of $100 million, forfeit 4.75 million metric tons' worth of GHG credits (worth hundreds of millions of dollars), and be required to implement training and audit testing of new vehicles.


New Environmental-Health Threat - Asbestos in Talc

Talc, the soft powdery mineral that is used in a myriad of common consumer products, can contain high levels of toxic asbestos. A number of users have already claimed injuries due to exposure to products containing talc.

The federal Food and Drug Administration ("FDA") has been slow to respond to the threat due to weak laws and restricted regulatory authority over talc and talc products.


State-NYC Expand Environmental Navies

In separate announcements, NYC and the State announced that the NYC Department of Environmental Protection ("NYCDEP") and various state and local agencies have received new vessels to enhance environmental compliance, regulatory enforcement and boating safety.


States Endorse Proposed New EPA Ozone Standards

A number of states - including New York - submitted a letter urging the federal Office of Management and Budget to support EPA's proposal to strengthen the national ambient air quality standards for ozone with a national primary standard of 60 to 70 parts per billion.


New State E-Mail Retention Policy Blamed for Lost Documents

As first raised in an item posted last month, the state's new radically shortened email retention policy (90 days) has already been blamed for the loss of email documents in litigation involving the Governor's Office and DEC.


Hudson River Estuary Plan Released

DEC released "The Hudson River Estuary Habitat Restoration Plan" as a guide for restoration and protective actions along the River from Troy to the Tappan Zee Bridge.


Court Orders SLA Licensee Back to Agency Hearing

In a case that may define the parameters of state administrative authority, the State Supreme Court remanded a NY liquor retailer's challenge to state enforcement authority back to the State Liquor Authority (SLA). Recall from a previous post that the liquor retailer is testing an SLA imposed ban on out of state sales.


Leadership Challenged at Lake George Park Commission

The Governor's Office is attempting to oust the Commissioner of the state's smallest state environmental agency for mysterious reasons. Intrigue has ensued. More next month.


Toxic Toys Invade NY!

The discovery of toys containing hazardous substances has drawn the attention of state officials including the Attorney General. The toys appear to be mostly small, cheap and imported from China. Look for related legislation in the 2015 session.


CWD Threatens NY Deer Population

DEC amended its Chronic Wasting Disease (CWD) regulations to prohibit the importation of certain parts of white-tailed deer, elk or moose taken in the state of Ohio where an outbreak has occurred. CWD is a lethal and incurable disease that can and has devastated wild deer herds in other parts of the country. Exposure of healthy to diseased animals spreads this disease.


States Denied Credit for Past Greenhouse Gas Reductions

New York and other states are miffed that proposed federal rules to cut greenhouse gases (GHG) are unfair because the proposed limits don't give their states enough credit for past voluntary reductions when compared to states that have effected little or no reductions to date.


Mining CEO Personally Indicted for Mine Explosion (West Virginia)

The CEO of a West Virginia Mine that exploded in 2010, killing 29, was indicted for numerous federal mining and securities violations including for making false statements after the disaster.


AT&T To Pay $52M in E-Waste Settlement (California)

Telecom giant AT&T Inc. agreed to pay $51.8 million in civil penalties and compliance costs to resolve California allegations that it unlawfully disposed of hazardous electronics waste with general solid wastes over a nine-year period. The wastes consisted of discarded electronic equipment, batteries, aerosol cans and hazardous chemicals used by technicians at over 200 distribution and service locations in that state. This is yet another example of hazardous waste enforcement against non-traditional non-industrial waste generators.


Fishing and SARBOX? An Unusual Legal Bouillabaisse! (Florida)

A Florida commercial fisherman was prosecuted and convicted under the federal Sarbanes-Oxley (SARBOX) security law for "shredding documents" by throwing back 72 undersized grouper before reporting to investigating US Fish and Wildlife officers. But is a fish equivalent to a document under the plain language of the statute? The U.S. Supreme court will weigh in on this rather fishy issue in this term as the fisherman appeals his conviction.


Energy Enforcement and Regulation

North Dakota Regulators Rule on Crude Oil Safety

New Yorkers concerned with the safety of crude oil trains in the Port of Albany were relieved to discover that the North Dakota Industrial Commission has endorsed proposed new operating standards which decrease the volatility of oil extracted from that state's Bakken Oil field and shipped to the rest of the country including New York. This action will dramatically improve the safety of Bakken oil shipped from North Dakota. The new regulations are to be finalized next year.


Power Plant Conversion Questioned!

The NYS Public Service Commission continues to wrestle with a controversial proposal to partially convert NYSEG's coal fired power plant in Tompkins County to cleaner burning natural gas.


Proposed Amusement Park near Propane Storage Questioned

Activists have raised issue with the contemplated placement of the relocated Hoffman's Playland about one-tenth of a mile from a 630,000-gallon propane storage facility on Albany's waterfront. Many in favor of the park move are also firmly against the passage of crude oil trains through Albany despite the safety questions raised by both activities.


Revised LNG Rules Cap Storage Capacity

Under revised proposed rules, the DEC would limit the size of proposed storage facilities for super-cooled and liquefied natural gas (LNG). LNG storage in NY has been banned since the early 1970's after a tragic explosion at a Staten Island facility killed 40 people. DEC set a revised limit of 70,000-gallons after public comments raised safety concerns.


Orange Co. Crude Oil Facility Expansion Nixed

The same oil terminal company that operates at the Port of Albany dropped plans to add a rail-to-river unloading facility on the Hudson River in New Windsor, about 90 miles south of Albany.


Incoming Crude Oil Slows Into Port of Albany

A citizen's group that monitors crude oil trains arriving at the Port of Albany reports that the oil flow has significantly diminished in recent weeks. Falling oil prices and higher drilling costs are thought to be the cause of the downturn.


Proposed Propane Storage in Salt Caverns

DEC continues to advance the administrative process for the proposed use of old salt mining caverns in the Finger Lakes region near Watkins Glen for as an underground liquefied propane storage facility. Opponents have stressed safety and environmental concerns.


Port Emergency Exercise

Numerous federal, state and local agencies participated in planning exercises focused on possible responses to an oil spill emergency at the Port of Albany.


Nuke Operator's Finances Challenged

A number of citizen watchdog groups have claimed that Entergy Corp, the operator of two New England nuclear power plants, has inadequate finances. The same company operates nuclear plants in New York (Indian Point). One of the New England plants is scheduled to be closed by the end of 2014.


People in the News

NYS ECO of the Year

The Update joins DEC and the New York State Rifle and Pistol Association (NYSRPA) in congratulating Environmental Conservation Officer (ECO) Scott Marshall for being named the New York State ECO of the Year.


DEC ECOs Receive Award for Excellence

The Governor commended members of the New York State Department of Environmental Conservation Police who received the Dave Cameron Award for Excellence in Environmental Crimes Enforcement and Education from the International Association of Chiefs of Police. The Award was presented to Lieutenant David Clarke and Investigators Fran D'Angelo, Mike Dangler and Mark Malone of the Bureau of Environmental Conservation Investigation ("BECI").


State and Local Enforcement

Artistic Hair Care and Hazardous Waste

The DEC investigated a release of 720 gallons of liquid ammonium hydroxide from the Zotos International Facility in Geneva, Ontario County. The spill occurred after an improper repair involving a storage tank. The highly caustic liquid discharged into a sewer outfall that eventually led to Seneca Lake. The company manufactures shampoo, hair dye and other grooming products.


Proposed New Bulk Storage Rules Hearing Report Issued

DEC has issued the administrative rule making public comment hearing report generated by proposed new regulations for petroleum and chemical bulk storage as well as used oil management. These reflect the first major regulatory and enforcement changes to these regulations in more than 20 years.


Federal Enforcement

NY Asbestos Inspector Sentenced (WDNY)

A NY-certified asbestos inspector was convicted of the misdemeanor charge of negligent endangerment under the CAA and was sentenced to one year probation. The Defendant had been involved in a scheme to create false asbestos abatement records as part of the Kensington Towers abatement project in Buffalo. He is the last defendant to be convicted and sentenced in this criminal matter. A number of federal and state enforcement and regulatory agencies cooperated and participated in this lengthy investigation.


Ivory Smuggler Sentenced (SDNY)

A Canadian antiques dealer pleaded guilty to attempting to smuggle rare black rhinoceros horns from New York to Canada as part of "Operation Crash," a nation-wide crackdown in the illegal trafficking in these items. The crime carries a maximum penalty of ten years in prison.


DEC Administrative Enforcement Orders, Decisions and Rulings

In the Matter of Rraci Real Estate Corp.,
Commissioner's Order, November 4, 2014
DEC File No. R2-20130905-379

The Commissioner granted the staff's motion for an order without hearing in lieu of complaint pursuant to 6 NYCRR 622.12, after Respondent failed to appear and also held that it violated a previous 2007 Order on Consent and therefore ECL 71-1929(1) for failing to comply with the corrective action plan (CAP) for an oil spill as directed. Respondent was also assessed a civil penalty of $50,000.

Of interest is that the Commissioner rejected the Administrative Law Judge's contention that ECL 71-1929(1) does not set forth enforceable requirements for a violator that "fails to perform any duty imposed by" orders of the Commissioner (citing, Matter of Raphy Benaim, et al., Order of the Commissioner, January 27, 2014, at 4 [failure to comply with stipulation is violation of ECL 71-1929]).


PBS Tank Administrative Hearing Defaults

In the following three 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 $7,500 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 Hop Hing Realty Corp.,
Commissioner's Order, October 24, 2014
DEC Case No. 2-607278AL

In the Matter of 1555 Seabury Place Housing Development Fund Corporation,
Commissioner's Order, October 24, 2014
DEC Case No. PBS 2-330701SC

In the Matter of Hop Yick Company, Inc.,
Commissioner's Order, October 24, 2014
DEC Case No. PBS 2-607294AL


Weird News

Groaning Frogs Found in NJ

Recently, researchers discovered New Jersey frogs that groan and cough (like some of my relatives) rather than croak like the other frogs.


Idaho Wolf Derby Cancelled

To the disappointment of sports fans everywhere, the federal Bureau of Land Management (BLM) cancelled an Idaho wolf and coyote hunting contest (the "Derby") on public lands. This item is illustrative of the controversies that involve the use of public lands and, in particular, the management of predators.


Chinese Diplomats Accused in African Ivory trade

Chinese diplomats have been accused of active involvement in the illegal international ivory trade. Those that follow this blog know that foreign nationals are often named in domestic illegal ivory investigations (see item on Operation Crash, above). However, if true, the collusion of diplomats in this criminal activity would be a serious blow to world enforcement efforts.

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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 January 11, 2015 12:29 PM.

The previous post in this blog was NY Environmental Enforcement Update October 2014, Vol. 1, Issue #22.

The next post in this blog is New Executive Order Amends Floodplain Management.

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