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NY Environmental Enforcement Update, February 2015, # 2, Vol. II


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

Enforcement News

Polluter to Pay $400k NRD settlement

DEC, the U.S. Fish and Wildlife Service and the U.S. Department of the Interior announced a $400,000 settlement with Honeywell International, Inc. and Amphenol Corporation for injuries to groundwater and natural resources due to the release of hazardous substances at the Richardson Hill Road Landfill Superfund site in Delaware County.

The DEC Commissioner is designated by federal law as the state's Trustee of natural resources.


Bees, Cherries, Pot and Suicide!

Discolored red bees and syrupy pollution run-off led DEC investigators and the Kings County (Brooklyn) District Attorney to execute a search warrant on a maraschino cherry plant in Brooklyn. While looking for environmental violations, the searchers found a large and long rumored, but hidden, marijuana grow farm. When confronted with the discovery, the plant owner immediately committed suicide in a sad ending to a strange enforcement story.


Indian Point ALJ Rules Power Outages Possible

A DEC Administrative Law Judge (ALJ) issued a preliminary ruling to allow further evaluation of permanent forced outages as one alternative to reduce the impacts to aquatic life caused by the Indian Point nuclear power plant in Westchester County. The ALJ issued this ruling as part of the ongoing administrative hearing on the issuance of a water pollution permit for the Indian Point facility which is adjacent to the Hudson River.

DEC issued a special statement to explain the ramifications of the controversial holding as the plant generates a significant percentage of the state's electricity. Many NY political and civic leaders are opposed on principle to the federal NRC re-licensing of the same plant.


Chain Store Passes on Dry Cleaner Clean Up

In what seems like a monthly cautionary tale about due diligence and former dry cleaning sites, a national pharmacy chain is refusing to support a state-proposed $500,000 cleanup of underground chemical pollution at former dry cleaners location in Colonie, NY. Despite the discovery of potential contamination as early as 2003, the chain still purchased the site in 2008, and may still incur state enforcement for part or all of the remediation costs.


Missing Fish and the US Supreme Court

In US v. Yates, the U.S. Supreme Court overturned the conviction of a Florida fisherman who allegedly dumped three undersized fish because an anti-shredding (evidence destruction) provision of the Sarbanes-Oxley Act does not cover all physical evidence. The Court held that Section 1519 of the act (the anti-shredding provision) was improperly used by government lawyers to prosecute John Yates for allegedly tossing three red groupers overboard after a US Fish and Wildlife officer caught him with the illegal catches and ordered him to keep them as evidence. The Act was intended to police corporate financial shenanigans and is rarely - if ever -used for environmental enforcement.


Appeals Court Reverses NY Dam Enforcement Action

In Berger v New York State Dept. of Envtl. Conservation, 2015 NY Slip 0p 01496 App Div, Third Depart., DEC was held to have erred in determining that property owners were liable for operating and maintaining the Honk Falls Dam in Wawarsing, NY after the dam had been designated as a hazard. Therefore, the owners were not liable for $500,000 in financial assurance and a civil penalty of $116,500.


Major NY Air Regulatory Changes on the Way

DEC is seeking to establish a toxic best available control technology (TBACT) standard for toxic air contamination among other changes for demonstrating compliance with the regulatory standards for air contaminants.


Bribery Alleged by NYC Building Inspectors

In a developing story, the New York County (Manhattan) DA is prosecuting approximately a dozen defendants for allegedly taking and receiving bribes in relation to building construction and renovations.


NY Movement to Ban Microbeads Grows

The opposition to these tiny but numerous water pollutants found in common consumer products continues to drive legislative initiatives in this year's session.


DEC Defends Record of Fracking Waste Regulation

DEC recently felt compelled to defend itself against criticism over the handling of out of state wastes generated by hydraulic fracturing (fracking) by natural gas drilling.


NY Slow to Grant M/C Pay Raises

New York's 10,800, Management Confidential (M/C) state employees have been denied raises since 2009, although pay is to rise slowly over the next seven years. Many M/C employees work at DEC and other related state environmental and health agencies.


Energy Enforcement News

NY Reacts to West Virginia Oil Train Explosion

NY officials urged a ban on Bakken shale crude oil trains traversing the state and entering the Port of Albany after another serious derailment accident and explosion involving oil tank cars in West Virginia.

In related news, NYSDOT Commissioner Joan McDonald and DEC Commissioner Joseph Martens used the West Virginia derailment to renew the state's call for expedited federal regulations requiring rail cars to be retrofitted with reinforced steel plates and advanced braking systems.


CSX RR Pays for Crude Oil Tank Car Spill in Virginia River

In more related news, CSX Corporation Inc. was assessed a $361,000 fine by Virginia for an April 2014 spill in Lynchburg, Virginia where more than 29,000 gallons of oil leaked from a derailed oil train into the James River. CSX also operates crude oil trains in New York (and into the Port of Albany).


Feds Predict More Oil Train Accidents

The U.S. Department of Transportation predicts that trains hauling crude oil or ethanol will derail an average of 10 times a year over the next two decades, causing more than $4 billion in damage and creating the potential for hundreds of deaths from accidents in densely populated areas.


Oil Train Foes Demand Legal Enforcement Ban of Oil Trains

Taking an obscure page from NY Environmental Conservation Law (ECL), crude oil train opponents continue to demand that NY ban oil trains outright using a little used legal instrument known as a Commissioner's Summary Abatement Order (see, ECL 71-0301, 6 NYCRR Part 620).


Why Feds Regulate Oil Trains

Given all the recent debate around oil trains, some may wonder how we came to be in the current regulatory relationship. Federal regulatory control of railroads (including crude oil trains) has existed since the 19th century at the expense of state authority.


People in the News

DEC Employee Named Forester of the Year

The New York Society of American Foresters (NYSAF) named NYS Department of Environmental Conservation (DEC) Region 5 Natural Resource Supervisor Tom Martin as its 2014 Forester of the Year.


New Chairs of NY Legislature Environmental Committees Named

Both houses have named new chairs to their environmental committees.

NYS Senator Thomas F. O'Mara (R,C) has been named new chairman of NY Senate Environmental Conservation Committee. He will also serve as a member on nine additional committees including Agriculture, Energy, and Transportation. He represents the 58th Senate District in the Finger Lakes and Southern Tier regions of New York.

NYS Assemblyman Steven Englebright (D) has been named the new chairman of the NY Assembly Environmental Conservation Committee. He represents the 4th Assembly District on the north shore of eastern Long Island which includes the DEC Region 1 office and SUNY Stonybrook.


State & Local Enforcement

North Country Hazardous Substance Dumper Charged

The DEC Bureau of Environmental Crimes Investigation (BECI) charged a Rouses Point man with endangering the public health, safety or the environment in the 2nd degree, a Class D felony among other related charges for the release of hazardous substances. The investigation evolved from the removal of 150 cubic yards of asbestos laden debris to an unpermitted disposal site.


Nassau DA and DEC Arrest Illegal Shellfish Merchant

A local seafood marketer was arrested for the alleged unlawful possession, marketing and sale of shellfish without the proper permits and licenses.

The investigation was conducted in coordination between the District Attorney's office and the DEC including the DEC's Environmental Conservation Police, Bureau of Marine Resources.


Albany DA Convicts Man of Animal Cruelty (P. v. Peterson)

The Defendant pleaded guilty to violating (1) Count of Torturing or Injuring Animals by Failure to Provide Proper Sustenance, a misdemeanor under NYS Agriculture and Markets Law 353, for intentionally depriving and failing to provide proper sustenance to four dogs and nine cats. He was sentenced to serve 60 days and 3 years of probation.

The Albany County District Attorney's office continues to be recognized for aggressively prosecuting animal abusers via that office's Animal Cruelty Taskforce ("ACT").


Federal Enforcement

Wildlife Trafficking Enforcement Plan

A Presidential Task Force issued an Implementation Plan for the National Strategy for Combating Wildlife Trafficking. The Task Force consists of seventeen federal agencies and offices.


NY Landfill Partially Removed From NPL List

EPA proposed the removal of most of a Fulton, Oswego County, New York Site from federal superfund (NPL) list after cleaning up more than 10,000 cubic yards of contaminated soil and approximately 9 million gallons of contaminated groundwater.


OSHA & NYSDOL

NYS DOL 2015-16 Asbestos Budget Testimony

In legislative budget hearings, the NYS Department of Labor (DOL) testified that DOL staff issued more than 38,000 licenses and certifications and processed nearly 70,000 asbestos project notifications in the 2013-14 fiscal year. Staff also conducted more than 1,500 inspections, issued 1,500 notice of violations and issued 1,500 variances related to asbestos.


Region 4 Administrative Orders

In the Matter of Zbigniew Truniarz/Pond Ridge Hunts
Order on Consent, January 30, 2015
File No. R4-2014-1021-158

Respondent was fined $10,000.00, for illegally possessing and breeding Eurasian boars in violation of ECL 11-0514(2) in the Town of Hancock in Delaware County.


In the Matter of NYS Office of Mental Health
Order on Consent, Jan. 20, 2015
File No. R4-2014-0827-142

Respondent's facility was assessed a civil penalty of $2,350, with $1,410, payable and the remaining balance suspended pending compliance with the Schedule of Compliance for nine hazardous waste regulations in violation of separate provisions of 6 NYCRR Parts 372, 373 and 374. Respondent is a NYS agency that operates the Capital District Psychiatric Center in Albany, New York.


In the Matter of GlaxoSmithKline
Order on Consent, Jan. 16, 2015
File No. R4-2014-0922-155

Respondent's facility in Durham, Greene County was assessed a civil penalty of $24,200, for 22 separate hazardous waste management violations in violation of various sections of 6 NYCRR Parts 371,372, 373 and 374. Notably, proper recycling notifications were not submitted for used electronics ("e-waste") in violation of 6 NYCRR §371.1(c)(7).


DEC Administrative Enforcement Orders, Decisions and Rulings

In the Matter of Stalker, Christopher
DEC File No. R4-2013-0409-52
Order, February 17, 2015

The Commissioner granted the Department's motion for a default judgment pursuant to 6 NYCRR 622.15 for failing to answer or appear and was held to have violated 6 NYCRR 613.6(a) by failing to conduct the required monthly inspections of the three above ground storage tanks (AST) in Hillsdale, N.Y. He was assessed a civil penalty of $6,000.


In the Matter of Rasey, Thomas O.
DEC Case No. 2013-2013D
Order, February 3, 2015

The Commissioner granted the Department's motion for a default judgment pursuant to 6 NYCRR 622.15 for failing to answer or appear in this proceeding, and was held to have violated 6 NYCRR 551.2(b) for failure to timely file a complete and accurate annual well report for oil and gas wells in the Town of Allegany, Cattaraugus County. Respondent was assessed a civil penalty of $1,000.


In the Matter of Izzo, Pasquale, Michael Izzo, Ernest Force
DEC Case No. 1-1999-11-05-89
Order of Disposition, January 30, 2015

Unable to find the location of or get a response from a lone Respondent for either service, mediation or enforcement of an Order, the Chief ALJ unilaterally struck this matter from the docket. The underlying action had originally commenced way back in 2000.


In the Matter of North Jersey Trailer & Truck Service, Inc.
DEC File No. C0 3-20140107-01
Commissioner's Order, January 28, 2015

Here, the Commissioner partially reversed the hearing ALJ who had denied staff's motion for a default judgement because staff had not provided a proposed order as prescribed by procedures at 6 NYCRR 622.15[b][3]. The Commissioner also noted that the department's staff failed to submit the required document at the suggestion of the ALJ. Respondent was assessed a civil penalty of $5,000.00, for failing to submit an Annual Certification Report (ACR) to Department as required of water permit holders in violation of 6 NYCRR 750-2.5.


Weird News

Waste Woes for the Wild Alaskan

The owner of a floating strip club (named the "Wild Alaskan") was indicted for releasing sewage into an Alaskan harbor in violation of the Federal Refuse Act, among other water pollution related charges.


Closed Mine Converted to Bike Park

Reclamation and reuse of former mine sites is often difficult and controversial. But here, a former limestone mine was successfully converted into a unique recreational facility for cyclers.


Don't Do It in the Reservoir!

An employee of the City of San Francisco's water utility will be disciplined after being caught relieving himself into an empty city reservoir. Perhaps he was trying to solve California's extreme drought.


Deadly Toxic Air Alleged in Airplanes

A UK coroner's official report recognized "aerotoxic syndrome", as a phenomenon responsible for the deaths of pilots and other incidents where pilots have passed out during flights. The report attributes the cause to long-term exposure to poisoned cabin air.


Giant African Land Snails Now Invade Texas

The Update continues to follow this slowly developing invasive species story as the giant snail has been sighted in at least three states. This eatable West African delicacy was found in the luggage of a traveler from that region. Meanwhile, in South Florida, the giant snail patrol is on the job.


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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 April 4, 2015 3:09 PM.

The previous post in this blog was NY Environmental Enforcement Update January 2015, Vol. II, # 1.

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