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NY Environmental Enforcement Update December 2014 # 24

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

Enforcement News

NY Bans Fracking

New York's six year environmental review of high-volume hydraulic fracturing (a/k/a fracking) for the extraction of natural gas ended when Governor Cuomo essentially banned fracking in the state. State officials determined that there were still too many unanswered health and environmental questions to allow the practice to proceed. NY is the only state to ban the procedure thus far. The determination is based on the December 2014, NYSDOH health study issued on the subject.

ExxonMobil Funds More Awards at Greenpoint

The NY Attorney and the DEC announced $11 million in the latest round of grant awards made by the Greenpoint Community Environmental Fund (GCEF), a $19.5 million environmental improvement fund created from money obtained by the state in a 2011 settlement with ExxonMobil over its massive historic oil spill in Greenpoint, Brooklyn. These projects include a roof top outdoor classroom for school children, planting trees, and improving waste water management. This is unique variation of an environmental benefit project (EPB) to resolve an enforcement case.

EPA Will Treat Coal Ash as Solid Waste

EPA will regulate coal ash as solid waste rather than as more strictly controlled (and expensive) hazardous waste. By choosing to regulate coal combustion residuals under Subtitle D of the Resource Conservation and Recovery Act (RCRA), the EPA has put it to the states to decide if they want to establish permit programs. This ruling will be helpful to NY facilities that use coal ash.

2500 PEF Members to be Re-classified as Non Union Managers

In a bombshell determination , the Governor's office has determined that up to 2500 current union members of the Public Employees Federation (PEF) are to be reclassified as "at-will" management-confidential employees. An unknown number of those impacted work for DEC and other state environmental agencies. A legal challenge by PEF is likely.

NY Court of Appeals Upholds DMV Inspection License Revocation

The NY Court of Appeals upheld an administrative determination by the NYS Department of Motor Vehicles (DMV) to revoke the certified state inspection license of a Menands, NY motor vehicle inspection station. The station had been found to be using a donor vehicle to falsify air emission tests. Note, as previously reported by the Update, DEC has also brought administrative penalty enforcement actions against phoney inspection stations for violating NYS air pollution laws.

NY Comptroller Reports DEC is in Trouble

The OSC predicted dire consequences due to long term budget and staff cuts at New York's primary environmental agency.

County Legislature Bans Toxic Toys

Albany County became the first municipality in the NY to ban toys containing toxic materials. The enforcement and interpretation of such stringent local laws is controversial. More local bans are anticipated around the state.

Nanotechnology - the Unknown Health and Environmental Risks

While policy makers in NY have assigned nanotechnology a significant role in the state's economic development, there is still uncertainty about any health and environmental impacts due to the use of this technology. This has some groups, such as the Sustainable Investments Institute, calling for disclosure of nano-technology used by companies.

NYC Trash is Too Dirty to Compost

One of the facilities accepting NYC's organic waste recently lost its license due to being overwhelmed with non-organic residuals. The facility's lenient policies for accepting compost feedstock that was highly contaminated with plastic and other non-compostables was what attracted to the facility. NYC will now need to find an alternative facility or find ways to mitigate the highly-contaminated nature of its organic waste feedstock.

NYC Climate Change Office Change

The Mayor has combined the Office of Long Term Planning and Sustainability with the Office of Environmental Coordination to create a new Office of Sustainability that will undertake the city's efforts to mitigate climate change.

AG Stops Cemetery Flooding

The NY Attorney General's office obtained a court order forcing a property owner to cease the unpermitted diversion of storm water that flooded a nearby cemetery. The alleged water diversion flooded and damaged cemetery property and grave sites.

Illegal Deer Hunting in Guilderland

My hometown is not immune from environmental transgressions as a Guilderland, NY man was charged with allegedly using an illegal spotlight to hunt deer after dark with a crossbow.

AG Prosecutes Cockfighting Ring

The NY Attorney General announced the felony cruelty to animal convictions of two Ulster County men as the result of "Operation Angry Birds," the largest known investigation into organized cockfighting in New York history.

Adirondack Park Agency Enforcement Report Issued

The APA enforcement docket is now available.

Energy Enforcement News

Inspectors Discover Faulty RR Switch Impacting Crude Oil Trains

NYS and federal inspectors found a faulty track switch which could have derailed passing trains that routinely carry dozens of crude oil tankers through a large Albany County industrial park in Guilderland, NY. This is a direct result of the state's increased scrutiny of crude oil trains moving Bakken Shale generated crude oil to the nearby Port of Albany for transshipment.

North Dakota Sets Crude Oil Volatility Std.

NYS stakeholders are divided over whether new standards imposed by North Dakota regulators to decrease the volatility of Bakken Shale crude oil will be truly effective in decreasing the levels of oil flammability in transported oil. The overall goal is to prevent or limit catastrophic fires due to crude oil train accidents.

Improvements to the Oil Spill Fund Contemplated

The Governor and the Comptroller have commenced their annual policy debate over how to address the issues associated with the state's primary oil spill cleanup mechanism especially in light of the increased oil train traffic in NY.

Governor Cuomo Issues Crude Oil Train Status Report

The Governor's office issued a report that details the state's response to the safety and environmental issues associated with crude oil trains to and through NY.

Constitution Gas Pipeline Comment Sought

DEC sought comments on permit applications the agency received for the proposed, federally regulated Constitution Pipeline and an upgrade to the Iroquois Wright Compressor station in Schoharie County. The Constitution Pipeline is a proposed interstate natural gas pipeline that would traverse though Broome, Chenango, Delaware and Schoharie counties.

Feds Approve Constitution Gas Pipeline - Fight Guaranteed

The Federal Energy Regulatory Commission (FERC) approved construction plans for the Constitution Pipeline, which would begin in the Marcellus Shale fracking fields around Susquehanna County, Pennsylvania, just south of Binghamton (see item above).

Opponents of the pipeline have vowed to continue their opposition. This project is one of many proposed to move Marcellus Shale natural gas from Pennsylvania into the Northeast energy market.

Another NY Pipeline Proposed for Penn. Natural Gas

Unrelated to the Constitution Pipeline (items above), FERC is also reviewing an application for the Northeast Energy Direct pipeline which would also carry Marcellus Shale natural gas from Pennsylvania to New England via a route that travels across areas south of Albany. Local opposition has already developed to oppose the pipeline project.

Indian Point Risks Highlighted by U.S. Senate

NY Senator Gillibrand raised several safety issues about the Indian Point nuclear plant based on the potential exposure of the plant to hurricane and earth quake dangers.

People in the News

Grisanti leaves Senate

Former NY State Senator and Chairman of the Senate Environmental Committee Mark Grisanti left the senate in 2014. As Senator, he sponsored many environmental initiatives and frequently spoke on legislative affairs at the ELS Legislative Forum. The Environmental Law Section wishes him well.

Long-time Long Island Senator Passes Away

Former NY State Senator Owen Johnson passed away after 40 years representing his Long Island district from 1972 to 2012. Among his many accomplishments was the legislation that created the state's Environmental Protection Fund.

Cruden Returns to DOJ

John Cruden has rejoined the Department of Justice as Assistant Attorney General for the Environment and Natural Resources Division.

New DEC Region 2 Attorney

Karen Mintzer has left private practice to become Regional Attorney for DEC Region 2 in Long Island City.

New Chief of NDNY Criminal Division

Elizabeth C. Coombe has been named the Chief of the Criminal Division of the United States Attorney's Office for the Northern District of New York.

NY Legal Scholar Passes Away

The Environmental Law Section joins the rest of NYSBA in mourning the loss of Professor David D. Siegel. Those that write or edit legal materials were both inspired and indebted to this giant of legal scholarship. The Update template is loosely based on Prof. Siegel's monthly CPLR Update and a great debt is owed to his pioneering of the format.

State & Local Enforcement

Albany Co. Cement Plant Fined $100k

The LaFarge cement plant in southern Albany County has been hit with a $100,000 state penalty for more than fifty violations of state and federal water law including polluting a stream that runs to the Hudson River (see link to Order below).

Final AG Settlement in the "Dirtman" Investigation

The Attorney General and NYC DEP Commissioner announced a legal agreement with a Putnam County landowner to clean up an illegal landfill that discharged pollution into the Croton Falls Reservoir. The owner is required to clean up the site and pay $245,000 in penalties as part of a consent judgment entered in Putnam County Supreme Court. In July 2014, the Court had ruled that the owner and his contractor, "Dirtman," violated state environmental laws in creating and operating a landfill.

Suffolk County Toxic Dumping Indictments Issued

The Suffolk County District Attorney announced a 32 count indictment against various parties for their parts in the illegal dumping of solid and hazardous wastes at various locations in the Central Islip area. Several defendants were also tied to criminal indictments connected to Hurricane Sandy relief.

$181k Air Penalty with EBP Imposed on Port Operator

DEC imposed a civil penalty of $181,000 on Buckeye Albany Terminal, LLC for air permit violations relating to the transfer of ethanol at its Port of Albany facility. An administrative consent order also requires operational changes to ensure compliance. Part of the penalty, $145,000, will be put toward an Environmental Benefit Project (EBP) to be identified (see link to Order below).

AG Sues NYC Oil Storage Violator

The NY Attorney General has sued a NYC landlord for violations of state oil spill and petroleum bulk storage (PBS) laws related to the handling and storage of heating oil at residential properties. The complaint cited 90 violations at 25 properties around the City. The landlord had also failed to correct the violations or pay a $113,500 civil penalty, as previously ordered by the DEC.

Bottle Bill Deposits Ordered to be Paid

A Monroe County beverage company was ordered to pay the state nearly $80,000 in bottle deposits for repeatedly violating multiple provisions of New York's Returnable Container Act (a/k/a the Bottle Bill). Investigations revealed that, for more than two years, the company collected deposits on beverage containers it sold but then failed to pay the unclaimed deposits to the state.

Region 4 Administrative Orders

In the Matter of LaFarge
Order on Consent
DEC No. R4-2014-0916-150, 12/12/14

Respondent, the operator of a Portland cement plant in Albany County was assessed a civil penalty of $100,000.00, for numerous violations of water pollution permits (SPDES) and chemical bulk storage (CBS) regulations as set forth in 6 NYCRR Parts 750 and 596, respectively.

In the Matter of Prokopiak
Order on Consent
DEC No. R4-2014-0206-22, 12/9/14

Respondent, the operator of a scrap yard and automotive facility was assessed a total penalty of $7,500.00, with $2,500.00, suspended for compliance due to the disposal of solid waste without a permit and open burning without a permit in violation of 6 NYCRR Parts 360-1.5 and 215.3, respectively. The payable portion of the penalty was to be remitted in four equal payments of $1,250.00, each.

In the Matter of Nicholsen
Order on Consent
DEC No. R4-2014-1031-165, 12/8/14

Respondent, a Certified Pesticide Applicator employed by a golf course, was assessed a civil penalty of $1,500.00, for the failure to maintain pesticide records and improper application in violation of 6 NYCRR Sections 325.25 (a) and 352.2 (b), respectively.

In the Matter of Apalachee
Order on Consent
DEC No. R4-2014-1113-168, 12/5/14

Respondent was assessed a civil penalty of $1,640 for operating a salt dryer combustion unit at the Port of Coeymans, Albany County which emitted a detached particulate plume in violation of 6 NYCRR 201-4.1 (a) for operating a non-exempt air emission source without an air registration or permit.

In the Matter of Buckeye Albany Terminal
Order on Consent
DEC No. R4-2014-0902-145, 11/19/14

Respondent, an operator of a facility at the Port of Albany, was assessed a civil penalty of $181,000.00, of which $145,000.00 was to be used for a prospective Environmental Benefit Project (EBP) for air pollution violations associated with the handling of ethanol at the port. Respondent was found to be in violation of 6 NYCRR 200.7 for the improper operation of an emission control required by the facilities Title V federal and state air pollution permit (also see news item above).

DEC Administrative Enforcement Orders, Decisions and Rulings

In the Matter of Alan Grout
Ruling of the Chief Administrative Law Judge on Motions
DEC File No. R4-2009-1120-176
December 12, 2014

Here, the Chief ALJ addresses the common problem of typographical or insignificant errors in pleadings by applying CPLR 2001 standards as per previous civil and administrative law precedents which allow pleadings, "to be corrected, upon terms as may be just, or, if a substantial right of a party is not prejudiced, the mistake, omission, defect or irregularity shall be disregarded." The Chief ALJ further concluded that Department staff should be permitted to correct the two clerical errors in its complaint regarding the correct nomenclature designation in the water regulations of the stream at issue in the matter.

Weird News

Bizarre Animal Remains Found at Bizzaro Residence

A drug raid on a Long Island home allegedly revealed 300 rotting deer hides and other miscellaneous and decomposing wild animal parts. Illegally possessed live snapping turtles were also discovered. Owner James Bizzaro had no reported comment.

New NY Law Bans Tattoos on Pets (Not, Tattoos of Pets on Owners)

NY residents can no longer extend their personal aesthetic to Fluffy or Mittens. NY has now protected pets from the growing practice of pet body modification and art.

A New Product Brand - NY State of Opportunity

New York State issued an 87-page manual to every state agency to introduce the new mandatory "State of Opportunity" motto and logo. The effort is part of a $217 million contract to advertise state economic benefit programs. Among the casualties is the long-used and well-known DEC environmental conservation (sky, land, water) logo.

Potential Bombs Close P.R. Wildlife Refuge

The federal government closed Playa Grande Beach, a part of the Vieques National Wildlife Refuge in Puerto Rico, to investigate the possible presence of old, but still explosive, military ordinance. Many parts of Vieques were historically used as a military bombing range.

Apes Are Not Legally Humans (or Are They?)

There is a low key, but passionate, international legal movement to establish human civil rights for captive great apes and elephants to improve the treatment of these creatures. A case brought on behalf of a privately owned chimpanzee recently failed in a NY court. However, in contrast, a court in Argentina found that a captive zoo orangutan did have such rights. So, the legal question seems to remain open for now.


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 February 22, 2015 2:41 PM.

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