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NY Environmental Enforcement Update March 2015, Vol. II, #3

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

Enforcement News

Dirty Fuel Oil Scam in NYC

Prosecutors are investigating the city's largest fuel oil companies for allegedly taking worthless, but hazardous, waste oil and "blending" it with fuel oil before delivering the diluted and adulterated product to customers. Victims were allegedly defrauded of millions of dollars for purchasing the bad oil.

Note: Historically, these crimes have occurred when low oil prices also diminish the used oil recycling market.

Nanotech Chemical Reporting Proposed

The EPA proposed a one-time reporting and record keeping requirement on nanoscale chemical substances to assist in its continued evaluation of the materials used in the growing NY "nanotech" industry. Can further regulatory oversight be far behind?

Radioactive Wastes on the Move

Knoll Atomic Power Lab, a cold war era nuclear research facility, is seeking the permission of local governments to transport radioactive wastes by rail for disposal, including the Town and Village of Corinth. The Department of Energy (DOE) run facility has been fined in the past for radiation releases. Shipments from the facility could start this spring and continue through mid-2017.

Storm Water Pond Pollution! Who is Responsible?

A lawsuit has been filed by residents of Greenbush living downstream of a municipal retention pond against the town. This item is indicative of the state's growing issue about the responsibility (and liability) for maintaining long standing storm water retention ponds, recharge basins and related infrastructure. These fixtures of suburban development are often neglected and become contaminated waterways or other nuisances.

53 NY Agencies Sign Invasive Species Agreement

Governor Cuomo announced an agreement among 53 New York State agencies, municipal governments and other stakeholders to prevent the introduction and spread of aquatic invasive species in the Adirondack region.

NY Court Says Exxon Must Pay Tax on Spill Enviro-Monitoring

The NY Appellate Division ruled that Exxon Mobil Corp. must pay a $500,000 New York sales tax assessment on environmental monitoring and testing at several past oil-spill locations, rejecting arguments that those activities were not technically part of the cleanup efforts thereby making these costs tax-exempt.

Energy Enforcement

US Senators Demand Safe Oil Trains Now!

Seven U.S. senators,including NY Senators Gillibrand and Schumer, asked the federal Office of Management and Budget to quickly finalize new comprehensive standards for crude oil rail tanker cars.

In related news, senators have also introduced legislation that would tighten regulation over crude oil trains including an immediate ban on older - and more prone to puncture - oil tank cars involved in several recent rail accidents and explosions.

NY Rail Inspections Continue

NYS continues to vigorously exercise its limited authority to inspect and report crude oil train violations.

Can NY Ban Oil Trains?

An attorney for groups that support a ban on crude oil trains using the ECL Summary Abatement (ECL 71-0301) process sets forth the legal basis for his claim.

Constitution Pipeline Woes

Over 600 land owners have refused to sign Right of Way Agreements to allow passage of the proposed Constitution Pipeline for natural gas. The refusals have led to condemnation proceeding under the Natural Gas Act.

In related news, the pipeline generated over 5,000 comments (most against the pipeline).

People in the News

USDOJ's Cruden to Focus on Bringing Bad Actors

The new USDOJ ENRD Director John Cruden will have a full agenda as he assumes supervision of the 400 attorneys of the Environment and Natural Resources Division (ENRD) and the 6,000 open environmental cases or investigations now before the USDOJ.

State and Local Enforcement

Alleged Roberto Clemente Park Dumper Hit with Tax Charges

A Suffolk County man previously indicted for illegally dumping asbestos contaminated fill at a Brentwood soccer field in Central Islip was arrested today on charges of not filing state income tax returns and filing a false income tax return and failing to pay personal income state taxes.

Staten Island Mystery Poacher Apprehended

In a rare occurrence of urban poaching, an alleged deer poacher set up shop in a borough of NYC.

Federal Enforcement

Wood Pallett Recycling Co. Criminally Fined $100,000

Defendants pleaded guilty and were sentenced in Eastern District U.S. District Court to the falsification of certificate stamps in violation of the Plant Protection Act. The company will pay a fine of $100,000, and the individual defendant will pay $1,000 and serve three years of probation. The U.S Department of Agriculture (USDA) requires the heat treatment of wood pallets used in international commerce to prevent the spread of parasites.

UST Violator to Spend $1.6 Million on Compliance at 125 Gas Stations

A settlement resolved alleged Resource Conservation Recovery Act (RCRA) violations at 31 gas stations in Puerto Rico and four gas stations in the U.S. Virgin Islands that use underground storage tanks (USTs). The violator agreed to pay a $426,000 civil penalty, implement compliance measures valued at approximately $1 million and undertake a supplemental environmental project (SEP) consisting of a centralized monitoring system estimated to cost approximately $600,000. A SEP is the rough equivalent of a NYS EPB.

DEC Region 4 Administrative Orders

We periodically remind readers that the DEC Region 4 office is the only regional office (of nine) that routinely posts administrative enforcement consent orders for entered for violations of the environmental conservation law (ECL). While the bases of these settlements are not binding on other DEC enforcement units, these do provide a valuable window into the department's overall enforcement and penalty policies.

In the Matter of Fred Edwards
Order on Consent, No. R4-2013-0912-l 14
March 9, 2015

A property owner in Palenville, was assessed a civil penalty of $2,000, with $9,000, suspended for the placement of unauthorized fill in classified freshwater wetland without a permit in violation of 6 NYCRR 663.4(d)(20).

In the Matter of the Gallivan Corporation
Order on Consent, No. R4-201 4-0812-134
March 9, 2015

A commercial pesticide applicator was assessed a civil penalty of $1,000, for the failure to post a visual notice marker on a Schenectady property subject to treatment in violation of 6 NYCRR 325.40(h)(2).

In the Matter of Hillside Commons Oneonta
Order of Consent No. R4-2014-0623-125
March 4, 2015

Respondent was assessed a payable civil penalty of $11,000, with an additional $10,000 suspended for several violations of its storm water pollution prevention plan (SWPPP), which was part of its SPDES water pollution permit. Respondent operated a construction site adjacent to waterways that lead to the Susquehanna River.

DEC Administrative Enforcement Orders, Decisions and Rulings

In the Matter of Furs By GiGi, Ltd.,
DEC Case No. PBS 2-607525AL
Commissioner's Order, March 4, 2015

The Commissioner granted DEC staff's motion for a default judgment pursuant to 6 NYCRR 622.15, for failing to answer or appear in this proceeding and was then held to have violated ECL 17-1009 and 6 NYCRR 612.2 for failing to renew the petroleum bulk storage registration for a petroleum storage facility in Flushing, New York. Respondent was assessed a civil penalty of $7,500. Staff had also moved to unilaterally reduce the original recommended penalty of $10,000, to conform to penalty guidelines.

In the Matter of Gilray, Thomas A.
DEC Case No. 2520-2013DK
Commissioner's Order, March 4, 2015

The Commissioner granted staff's motion for a default judgment pursuant to 6 NYCRR 622.15, for failing to answer or appear and assessed a civil penalty $1,500, for the failure to timely file a complete and accurate annual well report for certain wells in violation of 6 NYCRR 551.2(b) for failure to timely file a complete and accurate annual well report for oil or gas wells in Allegany County.

In the Matter of Accardi, Salvatore
DEC File No. R2-20120807-484
ALJ Ruling, March 2, 2015

This Ruling demonstrates the exacting factual standards necessary for the DEC staff to sustain a motion for an order without hearing. Here, the motion was denied. DEC had alleged liability for numerous tidal wetland violations based on recreational construction on property adjacent or near a part of Jamaica Bay. However, the department's affidavits were not clear as to the precise identification of the waterways and wetlands areas impacted. The matter will be rescheduled for a formal administrative hearing.

Weird News

China Cracks Down on Pollution

In the past, these posts have taken China to task for its severe pollution issues. However, Chinese President Xi Jinping recently called for an "iron fist" crack down on polluters. New policies include the Environmental Protection Law and the Clean Air Action Plan. Readers may recall that, theoretically, China also allows the death penalty for environmental crimes.

Coyotes Now Invade the Bronx

These elusive, yet ubiquitous, creatures continue to adapt to urban living.

A Litter Box upon Your House!

A disgruntled upstate NY politician apparently has been getting even with his adversaries by allegedly (and unlawfully) dumping his cat's litterbox contents onto their lawns. He was undone by covert police surveillance of the situation. Really folks, I do not make this stuff up.

Paris Air Pollution Rivals China's

Surprisingly, Paris, France is challenging China for having the most polluted air.

Geo-Magnetic Storm Hits Earth!

We earthlings sometimes forget that our environment can include extreme extraterrestrial forces.

Will There Be a Shower Police?

To combat water waste, EPA has authorized a university a grant to develop a device to monitor water usage by motel guests. Prepare for more stories like this due to the severe California drought.

Manatee News

In an odd conflict of environmental goals, proponents of a coal burning power plant argue that the plant should remain open as endangered manatees benefit from the warm water outflow from the plant.

Meanwhile, an environmental group has indicated that it will sue the federal government to ban the issuance of permits that allow swimming with manatees. The condition of these gentle creatures is often used as a bell weather of Florida's environmental quality.

Elephants Gone from the Big Top

Ringling Brothers and Barnum & Bailey Circus will drop elephants from circus performances ending over a century of circus tradition. The remaining elephants will be retired to an elephant preserve in central Florida.

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This page contains a single entry from the blog posted on June 21, 2015 1:49 PM.

The previous post in this blog was Message from the Incoming Environmental Law Section Chair, Michael J. Lesser.

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