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NY Environmental Enforcement Update January 2015, Vol. II, # 1


By Michael J. Lesser, Environmental Law Section, NYSBA © 2015

Enforcement News

Record $5.15 Billion Environmental Kerr-McGee Settlement

The USDOJ entered a historic settlement with Anadarko Petroleum Corp. and Kerr-McGee for cleanups across the country. The settlement resolves fraudulent conveyance claims brought by the United States and the Anadarko Litigation Trust, against Anadarko in the bankruptcy of Tronox Inc. and its subsidiaries. Tronox had assumed most of the numerous environmental liabilities of the former Kerr-McGee company. The trust will distribute more than $4.4 billion to fund environmental clean-up and for environmental claims including those in New York. The settlement constitutes the largest payment for the clean-up of environmental contamination ever awarded in a DOJ action.


Buyer Beware for Former Dry Cleaner Property

This matter illustrates the importance of due diligence in the purchase of old commercial properties such as this one in Colonie, New York. In such cases, New York's legal, regulatory and real property processes give little or no warning to prospective purchasers about pre-existing environmental conditions which can generate liability and enforcement. DEC has detected PCE and related dry cleaner derived wastes in the ground and groundwater on or near the property.


Governor Issues 2015-2016 Executive Budget

The proposed state budget for the next fiscal year contains substantive environmental and energy provisions including: a revised Brownfields Cleanup Program; increased funding to the Environmental Protection Fund; and significant changes to the oil spill laws, among numerous additional changes. These proposals are outlined in detail starting at p. 83, of the budget program overview.


United Airlines Faces FAA $1.3 Million Haz Mat Fine

The Federal Aviation Administration (FAA) has assessed a $1.3 million fine against United Airlines for alleged hazardous material handling and transport violations, including failing to give pilots accurate information about lithium metal batteries, corrosive liquids and radioactive materials. United Airlines flies to a number of NY airports.


NY and Cal. Retail Chains Pay Fines for Hazardous Waste Violations

99 Cents Only Stores LLC will pay $2.4 million in penalties as part of a settlement to resolve civil charges that the discount retailer improperly disposed of hazardous wastes at its California stores. California continues to lead in the national trend of prosecuting non-industrial parties that handle hazardous wastes in retail settings.

However, the NYSDEC is following this national trend and recently assessed a civil penalty of $27,945 ($25,151, payable) against the CVS drug store chain for a long list of RCRA hazardous waste regulatory violations at five of its retail locations in upstate NY. Essentially, the stores violated numerous provisions of 6 NYCRR Parts 372, 373 and 374, for the improper generation, record keeping, storage and disposal for discarded or returned retail products (such as aerosol cans) which were classified as ignitable (characteristic) hazardous wastes as defined in 6 NYCRR Part 371. A lengthy compliance plan was attached to the settlement.


NY AG Issues Statement on EPA Methane Emission Reduction

The Attorney General supports the EPA proposed regulations that will require new and modified equipment to limit petroleum industry methane emissions under the Clean Air Act.


NY AG Supports Public Waterway Right of Travel

The AG and DEC prevailed in litigation before the Appellate Division Third Department, to establish and maintain the public's right to travel on recreational navigable state waterways(see underlying Supreme Court Decision, Friends of Thayer Lake v. Phil Brown).


New Mold Law Signed

The Mold Bill, S3667D-2013, amends the labor law and will provide for licensing requirements and minimum work standards for persons and business entities engaged in mold remediation and mold abatement activities. The Bill was drafted mainly in response to Hurricane Sandy recovery efforts.


DEC 2015-16 Legislative Budget Testimony

Commissioner Joe Martens pontificated /a> on numerous topics about the department's 18 divisions and nine regional offices and the more than 1,900 facilities and 4.4 million acres of land managed or supervised by DEC staff in his legislative testimony. The Commissioner highlighted projects involving water quality, LNG storage, brownfields, and endangered species.


Suffolk Co. Dumping: Environmental Impacts Ensue!

In the wake of the December dumping indictments, the Suffolk County's Health Services Department plans to install temporary wells at Islip Town's Roberto Clemente Park. Wells are also proposed at three related sites where illegal dumping has been alleged. The related criminal prosecution is pending.

In related news, DEC has approved the Clemente Park cleanup plan. Excavation of the illegal fill materials is anticipated.


Feds Investigate Troy Asbestos Handling

Federal and state investigators continue to probe the handling and disposal of asbestos at several municipal owned demolition sites in the City of Troy. Clean Air Act (CAA) NYS Labor Law violations are suspected.


Emerald Ash Borer Task Force Formed

DEC has stepped up its efforts to check the spread of this destructive invasive species that threatens the state's ash tree population. Enforcement measures will include continued regulation of the movement of fire wood in state.


Lake Ontario News

Stakeholders have submitted "Plan 2014" for consideration to the International Joint Commission for the rehabilitation of the Lake and its shorelines. The Plan's advocate, Stuart Gruskin, is the chief conservation and external affairs officer at The Nature Conservancy New York, and the former executive deputy commissioner of DEC.


NYS E-Waste Law Now in Effect

Both individuals and business should be aware of the restrictions on the handling and disposal of waste electronics that are now in effect. To complicate matters, the recycling industry for old TV and monitor tubes is failing. The lawful disposal of discarded TV tubes will be difficult and expensive in the near future.


Smoking Banned in Albany City Parks

Albany joins several other Capital area communities in banning all smoking outdoors in city parks. The fine for violators is $50.00.


Road Salt in Lake George

Harsh winters often result in environmental harm via road salt laden run off water pollution into state waterways. Lake George is no exception. Though seasonal, road salt pollution enforcement is also a real possibility.


DEC Announces Excellence Awards

The DEC recognized a number of organizations for innovative programs and environmental improvements. Among the winners are those that improved recycling programs and limited CO2 generation.


Energy Enforcement

Safe Oil Train Rules Delayed!

The USDOT has delayed the issuance of updated safety standards for transporting oil by rail to May 2015, despite public calls for swift action.


Constitution Pipeline Opposed

Despite the NY ban on the use of hydraulic fracturing (fracking) for natural gas extraction, the fight to prevent two proposed fracked gas pipelines that would enter NY from Pennsylvania continues.


People in the News

Former Governor Mario Cuomo and Two DEC Officials Pass Away

Former Governor Mario Cuomo died Jan. 1 as a result of heart failure. Among the many environmental accomplishments achieved by the state during his three terms in office were the creation of the Environmental Protection Fund and the passage of the 1986 Environmental Bond Act.

Two prominent former DEC officials also were recently deceased. Richard Williams served for many years in the Office of General Counsel as the department's bond and enforcement counsel. John DuPont served as editor of "The Conservationist," the official DEC magazine for almost two decades. The Section extends its condolences to their families and friends for their long service and many contributions to environmental quality.


State Office Appointments Announced

Governor Andrew Cuomo made numerous appointments and nominations to various state offices. Those relevant to public health, energy and the environment included:


  • Howard Zucker, nominated to serve as Commissioner of the State Department of Health;

  • Floyd Flake, appointed to serve as a member of the Public Service Commission;

  • Peter Walke, appointed Assistant Secretary for the Environment in the Governor's office; and,

  • Suzanne Beddoe, appointed as Senior Vice President and General Counsel of the Environmental Facilities Corporation

.

State & Local Enforcement

Asbestos Inspectors Arrested

The Richmond County (Staten Island) District Attorney arrested two asbestos inspectors for submitting fraudulent reports at a Staten Island construction project. Both workers and nearby residents may have been exposed to toxic asbestos.


Summer Flounder Seized in Winter

Two fishermen were charged with misdemeanor illegal commercialization of wildlife when DEC Environmental Conservation Officers (ECOs) caught them violating summer flounder trip limits when their boat returned to port in Southampton in Suffolk County. Almost 400 lbs. of illegally caught fish was seized and donated to charity.


DEC Regional Conservation Police Issue Enforcement Reports

Several DEC Regional law enforcement offices have issued annual reports. This is a sad reminder that a comprehensive statewide annual report has not been publically issued by the department's Division of Law Enforcement (DLE) in almost four years.

APA Enforcement News

The 2014 Adirondack Park Agency Annual Report and the 2014 Division Reports are now available. The Legal Division Reports can be found on page 13 of the Annual Report and page 30 of the Division Reports.


Federal Enforcement

Shell Penalized $900K For Selling Non-Compliant Fuel

The EPA entered into an administrative settlement agreement with subsidiaries of the international gasoline refiner and retailer Shell Oil to pay $900,000 for allegedly selling gasoline and diesel fuel that didn't comply with federal emissions standards in violation of the Clean Air Act.


Criminal Ricin Buy Thwarted!

A man was indicted in the SDNY for attempting to buy the deadly toxin ricin and committing postal fraud. The suspect attempted to acquire ricin via the "Dark Web" which is described as a vehicle used by criminals to buy and sell illegal and potentially dangerous merchandise.


EPA Region 2 Fines DuPont for CAA Violations

DuPont has been fined $531,000 for alleged Clean Air Act violations at its chemical manufacturing plant in Deepwater, New Jersey for the improper maintenance and repair of two large refrigeration units. Poor maintenance can allow chlorofluorocarbons (CFCs) to be released into the environment.


Region 4 Administrative Orders

In the Matter of CVS Caremark
Order on Consent
File No. R4-2014-0122-9

As predicted in previous blogs, the DEC is following this national trend and recently assessed a civil penalty of $27,945 ($25,151, payable) against the CVS drug store chain for a long list of RCRA hazardous waste regulatory violations at five of its retail locations in upstate NY. Essentially, the stores violated numerous provisions of 6 NYCRR Parts 372, 373 and 374, for the improper generation, record keeping, storage and disposal for discarded or used-returned retail products (such as aerosol cans) which were classified as ignitable (characteristic) hazardous wastes as defined in 6 NYCRR Part 371.


In the Matter of Adirondack Pest Control
Order on Consent
File No. R4-2014-1031-163

A certified pesticide applicator was assessed a civil penalty in the amount of $12,500 of which $6,000 is payable with the balance suspended for compliance with the Schedule of Compliance for the failure to keep proper application records in violation of 6 NYCRR 325.25(a).


In the Matter of Deposit Wood Pellet
Order on Consent
File No. R4-2014-0818-138

A Delaware County wood pellet manufacturer modified air pollution control equipment without submitting a permit modification application in advance of making the changes in violation of 6 NYCRR 201-5.4(a) and 6 NYCRR 201-5.4(b). The company was assessed a civil penalty of $5,000.00.


In the Matter of Jeff Wyskochil
Order on Consent
File No. R4-2014-1113-167

A Rensselaer County resident was assessed a civil penalty of $3,000.00 for the unpermitted operation and installation of an uncertified outdoor wood boiler (OWB) in violation of 6 NYCRR §247.3(a).


In the Matter of Annmarie Ennis
Order on Consent
File No. R4-2014-1031-161

A Delaware County landowner was assessed $2,500.00, with $1,500.00, suspended for disturbing the bed and banks of a stream without an Article 15 permit, a violation of 6 NYCRR 608.2(a).


In the Matter of Frank Wright
Order on Consent
File No. R4-2014-0917-151

Respondent was assessed a civil penalty of $1,000.00, for mining without a permit in violation of 6 NYCRR 421.1 (a).


In the Matter of Red Maple Land Services
Order on Consent
R4-2014-1117-169

An Albany County commercial pesticide applicator was assessed a $1,500.00, civil penalty for Pesticide violations for the failure to maintain proper records and a written contract in violation of 6 NYCRR §325.25(a) and 6 NYCRR §325.40(a), respectively.


DEC Administrative Enforcement Orders, Decisions and Rulings

In the Matter of Galloway
Commissioner's Order
DEC Case No. R6-20100629-21, PBS No. 6-141186
January 16, 2015


What happens when an alleged ECL violator is in jail and unable to appear or submit an Answer? As you might expect, the Respondents (the operator and his wife as co-owner) were held liable despite his incarceration and ordered to close their three petroleum bulk storage (PBS) tanks in ninety days. They were also assessed a civil penalty of $5,600.00, of which half was suspended upon compliance, based on a number of regulatory violations of 6 NYCRR Part 613. A motion for a default judgment pursuant to 6 NYCRR 622.15 was also granted. However, Respondent is not scheduled to be released from prison until 2017.


Weird News

Is Beijing Unlivable Due to Air Pollution?

We should all take notice when no less an authority than Beijing's Mayor pronounces that his City is unlivable due to heavy air pollution.


New Chinese Export: Pollution

After absorbing the previous item, be aware that China's solution to pollution is to move its polluting factories to other countries. Good thinking!


Chinese Man Builds Homemade Electric Car

Despite the above items, all is not lost on the Chinese pollution front. A Chinese carpenter built an all wood, zero emission electric car capable of 30 mph at a cost of roughly $3,200.00. Elon Musk (builder of the luxury Tesla electric car), take notice!


Vultures Invade Guilderland, NY

One of my hometown neighbors likes to feed the local vultures (birds, not people) resulting in a disgusting mess. Feeding vultures is legal in NY (of course).


Coyotes in NYC

The call of the wild has reached lower Manhattan.


Beavers Blamed for Climate Change

You just knew it would come to this.


_____________________________________________________________________________________________________________________

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 March 28, 2015 1:59 PM.

The previous post in this blog was Clean Water NY: What actions are needed to ensure sustainable water resources in the 21st Century?.

The next post in this blog is NY Environmental Enforcement Update, February 2015, # 2, Vol. II.

Many more can be found on the main index page or by looking through the archives.