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NY Environmental Enforcement Update April 2015, Vol. 2,#4

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

Enforcement News

Finally, a New State Brownfields Law

After several years of false starts, state leaders finally agreed and allowed the passage of an updated Brownfields and related superfund laws. Changes include new deadlines for project completion, tax credit eligibility and funding for the state superfund. The new laws also instituted a new two-tier site eligibility program to distinguish NYC from the rest of the state. DEC still must issue several regulatory definitions to implement the law.

Lumber Liquidators Faces DOJ Criminal Charges

Lumber Liquidators Inc. reported that the USDOJ will seek criminal charges for violations of the Lacey Act due to imported wood flooring products from China. The company also reported the likelihood of several class actions for allegedly toxic products imported from China. The company has 19 locations in NY.

Schenectady Casino to be built on Brownfields

The State has chosen a historically contaminated brownfield to be the location of a new casino and extensive associated development. While the environmental issues were downplayed in the site selection process, the developer must address some intricate environmental and engineering issues including soil vapor protection and waterfront dredging as part of the state's Brownfield Cleanup Program.

Walgreens Refuses Cleanup of Ex-Dry Cleaner Site

Here is another cautionary tale about the purchaser of a former dry cleaner that risked state cleanup liability for a good retail location - and may lose in the outcome.

EPA and GE Joust over Added Canal PCB Cleanup

Locals urge that General Electric not be allowed to disassemble its PCB processing plant while PCBs still remain in the Champlain Canal, an off-shoot of the Hudson River. However, the canal was not part of the original Hudson River cleanup agreement between EPA and GE which is reluctant to re-open the matter (to say the least).

Odor Woes - Tis the Season

Warmer weather usually raises the exasperating subject of odor control and enforcement. On the state level, 6 NYCRR Part 211, may be of interest regarding state enforcement, in addition to any local code restrictions.

Reform NY Toxics Law Now!

Some New York legislators have joined a nationwide movement to reform state and federal toxics laws regarding testing and product content disclosure. These basic laws - such as TSCA - have remained little changed regarding the investigation of toxics since the 1970's.

NY AG Warns about Lead Poisoning

The NYS Attorney General has gathered resources related to the prevention and detection of lead poisoning.

NY AG Warns about Water Pollution via Microbeads

As previously reported in the Update, the NY Attorney General has taken notice of the water pollution threat created by the release of microbeads into the environment through the use of numerous personal consumer products that use these tiny plastic bits.

APA Contemplates Invasive Species Prevention

The Adirondack Park Agency has joined the state's efforts to prevent the expansion of destructive invasive species into the region.

DEC Issues Proposed Amended Water Quality Rules

DEC issued a hearing report regarding amendments to 6 NYCRR Parts 701 and 703, to conform those standards to new federal water quality regulations.

DEC Staff Loses Camera Privacy Suit

In a follow up to a previous post, a court held that DEC staff may be spied upon by security cameras for purposes of enforcing break times.

Energy Enforcement

Albany Co. Bans Fracking Wastes

Despite the state's ban on natural gas fracking, Albany County banned liquid hydraulic fracturing or "fracking" wastes from its water treatment system as a "warning" to out of state gas drillers that might even think about it.

Albany Omitted from Oil Train Speed Limits

For bureaucratic reasons, USDOT has left Albany off the list of places subject to limits on oil train speeds.

Are Crude Oil Shipments Decreasing?

Nationwide, crude oil shipments appear to be decreasing.

Crude Oil train Fees Go Up

Despite federal regulatory pre-emption, NY can and has raised the fees charged for crude oil transported through the state.

Oil on the Hudson!

While crude oil trains have been the focus of regulatory scrutiny, oil transport on the Hudson River remains of great concern due to the risk of spills.

The Two Sides of NED

The proposed Northeast Energy Direct (NED) natural gas pipeline illustrates the arguments both pro and con regarding natural gas pipelines.

Nuke Bailout Contemplated

State officials are weighing whether rate payers should bailout a failing Rochester nuclear power plant.

People in the News

New Attorney for EDNY

Kelly T. Currie has been appointed Acting US Attorney for the Eastern District of NY. His biography does not suggest extensive environmental experience.

State & Local Enforcement

NY Attorney General's Office Enforcement Summary

In honor of Earth Day, NY Attorney General Schneiderman has listed the numerous recent environmental accomplishments of his office's Environmental Protection Bureau (EPB).

Federal Enforcement

Guilty Pleas in Biodiesel Fraud Scheme

Defendant and two related New Jersey companies pleaded guilty in a scheme to defraud biodiesel buyers and U.S. taxpayers by fraudulently selling biodiesel incentives.

Failure to File Asbestos Notice

The EPA continues to investigate the demolition of the closed Beech-Nut plant in Canajoharie, NY for the failure to file proper notice of an asbestos abatement in violation of the CAA. This issue is illustrative of the many obstacles facing businesses that hope to revive historical industrial sites in the state.

Boat Sewage Ban Proposed for Finger Lakes

At the request of DEC, the EPA has proposed a ban on boat sewage dumping in Lakes Seneca and Cayuga.

Improper Pesticide Use in the Virgin Islands and Puerto Rico Alleged

EPA continues to investigate the improper application of the dangerously toxic pesticide methyl bromide in various locations in these otherwise tropical paradises.

OSHA & NYSDOL Enforcement

NYSDOL Eliminates 57 Fees

The NYS Department of Labor ended the collection of 57 mostly strange and obscure business fees (many environmental in nature) as part of the 2015-16 state budget. New Yorkers will save approximately $3 million annually. My favorite cancelled fees: The annual Antique Boiler and Steam Engine Inspection fee; The Podiatry Arbitration Request Fee; and the ever popular Laser Regulation Permit Fee.

DEC Region 4 Administrative Orders

In the Matter of Seward Sand & Gravel
Order on Consent
DEC File No. R4-2013-0916-115

Respondent was assessed a civil penalty of $4,750, with $3,000, suspended for violating a special condition of its mining permit by disposing unauthorized flood debris in the mine in violation of ECL Article 23, Title 27.

In the Matter of Sonny & Sons Stone Co.
Order on Consent
DEC File No. R4-2014-1024-159

Respondent was assessed a civil penalty of $10,000, with $8,000, for the failure to properly and timely complete a bluestone mine reclamation plan in violation of ECL Section 23-2711-12-a, due to the off-site disposal of waste rock.

In the Matter of The Home Depot
Order of Consent
DEC File No. R4-2015-0306-25

Respondent, a national chain retailer, violated 6 NYCRR § 659.1, which prohibits the selling of household cleaning products containing more than 0.1% of the contents by the weight of the element phosphorous." Note: this matter concerns a rarely enforced water pollution control regulation which is subject to a special enforcement provision at ECL 71-3103, which caps a first violation at $2,500.00 (the assessed civil penalty in this case).

In the Matter of R.J. Valente Gravel
Order of Consent
DEC File No. R4-2014-0124-11

Respondent, mining concern, was assessed a civil penalty of $14,000.00, with $4,000.00 suspended for numerous violations of the state's mining and reclamation and water pollution laws. Mining violations of the Respondent's permit conditions included: the negligent handling and disposal of mining and solid wastes; violating the mine's land-use plan, 6 NYCRR Part 422.1; failure to comply with a previous consent order; and unpermitted discharges to state waterways as per ECL 17-0511.

In the Matter of Midstate Pest Control
Order on Consent
DEC File No. R4-2015-0130-7

Respondent, a pesticide applicator, violated 6 NYCRR 325.2 by failing to adhere to label directions for the pesticides applied; and to provide the property owner with copies of the product labels of the products applied in violation of ECL §33-0905(a). A civil penalty of $6,000.00, was assessed. The violations stemmed from a bed bug outbreak in a local motel.

In the Matter of SIMONIZ USA
Order on Consent
DEC File No. R4-2015-0130-6

Respondent, a nationally known manufacturer of car care and janitorial products, was found to be in violation of ECL 33-1301(1)(a), for the distribution and offer for sale of Simoniz Foam Disinfectant, which is an unregistered pesticide in New York. An investigation revealed that almost 900 containers of the product were shipped into NYS in the Fall of 2014.

DEC Administrative Enforcement Orders, Decisions and Rulings

In the Matter of Franco, Edivane and Franco, Ubirajara
DEC Case No. R1-20070830-252
ALJ Ruling, April 20, 2015

An extreme example of administrative delay is illustrated in this case which has its roots in a Riverhead Respondent's attempt to build a swimming pool and related improvements on or near a regulated freshwater wetland in 2003. A number of consent orders, permits and enforcement proceedings ensued over the years. The latest presiding ALJ has finally ruled for a partial summary order for DEC staff for violations of 6 NYCRR Part 663 and ECL 24-0701. Rulings on penalties and mitigation were denied due to issues of fact and the matter continues. My educated guess is that the lack of DEC staff and/or staff turnover played a significant role as this saga enters its thirteenth year.

In the Matter of 444-451 Orange Buildings Housing Development Fund Corporation
DEC Case No. PBS 2-601054NYW
Order, March 10, 2015

The Commissioner ordered a default judgement pursuant to 6 NYCRR 622.15, and awarded a judgment of $10,000.00, against Respondent for violations of ECL 17-1009 and 6 NYCRR 612.2(b) for failing to re-register its NYC petroleum storage facility within 30 days of the transfer of ownership of the facility to it in 2004.

In the Matter of Adonai Realty L.P.
Commissioners Order, March 10, 2015
DEC Case No. PBS 2-601115NYW

Respondent violated ECL 17-1009 and 6 NYCRR 612.2(b) by failing to re-register its petroleum storage facility, located in the Bronx, within 30 days of the transfer of ownership of the facility to the Respondent within the 2004 calendar year. The Commissioner granted the DEC staff motion for a default judgment pursuant to 6 NYCRR Part 622.15, and assessed a $10,000, administrative penalty according to the department's PBS enforcement guidance.

In the Matter of Exeter 13172 De, LLC
Commissioner's Order, March 10, 2015
DEC Case No. PBS 2-607789NAL

Respondent violated ECL 17-1009 and 6 NYCRR 612.2(b) by failing to re-register its petroleum storage facility located in the, Bronx, within 30 days of the transfer of ownership of the facility to it. The Commissioner granted the DEC staff motion for a default judgment pursuant to 6 NYCRR Part 622.15 and assessed a $5,000.00, administrative penalty according to the department's PBS enforcement guidance.

In the Matter of Hill, Lance
Commissioner's Order, March 10, 2015
DEC File No. R4-2012-1129-111

The Commissioner granted a Motion for a Default Judgement and assessed a $10,750.00, penalty for Respondent's five PBS violations including:

  • 6 NYCRR 612.2(a)(2), failing to timely renew the PBS facility's expired registration;

  • 6 NYCRR 612.2(d), failing to notify Department staff of a substantial modification to the PBS facility, specifically the removal of two above-ground storage tanks;

  • 6 NYCRR 613.9(b), failing to properly permanently close three above-ground storage tanks;

  • 6 NYCRR 613.6(c), failing to maintain monthly inspection reports for the facility's above-ground storage tanks for at least ten years; and

  • 6 NYCRR 613.3(c)(3), failing to install overfill prevention systems on four above-ground storage tanks.

In the Matter of Edkins Scrap Metal Corp., et al
ALJ Ruling, March 10, 2015

Department staff's motion for an order without hearing was partially granted on the issue of liability for the following violations stemming from the unlawful placement of fill in a regulated tidal wetland including:

  • ECL 25-0401 and 6 NYCRR 661.8 and 661.5(b)(30) for placing fill in a regulated tidal wetland and tidal wetland adjacent area without a permit;

  • ECL 15-0505 and 6 NYCRR 608.5 for placing fill in the navigable waters of the State without a permit; and,

  • 6 NYCRR 661.5(b) (48) for operating a commercial non-water-dependent business in a tidal wetland and tidal wetland adjacent area without a permit.

Weird News

Alleged X-Ray Terrorism Case Proceeds

Follow this: As previously reported, an alleged KKK member attempted to supply an X-ray weapon of mass destruction to perpetrate all kinds of racist mayhem. Previous sources referred to the weapon as a "ray-gun." It is laughable until you realize that one defendant has already pleaded guilty in this NDNY case.

More Cashing in on Bigfoot

Another upstate NY community is attempting to monetize its purported relationship with the big guy. Recall an earlier post about the Annual Bigfoot Symposium in Chataugua.

Buffaloes Attempt to Evade Thruway Tolls

An escaped buffalo (American Bison) herd swam across the Hudson River and was tragically executed by hunters just short of rushing into traffic on the NYS Thruway. You read that right!

The Last Rhino Standing

In the saddest post of the month, armed guards have been deployed to protect the last known male member of an African Rhino sub-species from relentless ivory poachers.

Beware Bold Coyotes

Recent Update posts have dealt with the urban invasion of these secretive predators. Now, DEC has issued public guidance on how to address wayward coyotes including those exhibiting "bold" behaviors (like the individual recently photographed on a Queen's NY roof top).

EPA Administrator Appears with X-Rated Hip Hop Acts

EPA Administrator Gina McCarthy appealed to young people at the "environmental justice" Broccoli festival to raise awareness about climate change. A classical music concert it wasn't.

Moose stabbing - Huh?

Three Alaskans were arrested for assaulting and stabbing a moose! Their motives were unknown but Alaskan winters are very long.

Haunted Landfill on Staten Island?

In another sad legacy of the 911 attacks, a new book alleges that the Fresh Kills Landfill is haunted. Recall that the closed landfill was reopened to receive excavated rubble from Ground Zero.

Breaking Bad at Walmart!

A dismantled methamphetamine lab was discovered in a backpack in an Indiana Walmart restroom apparently used to manufacture the stuff. Aside from the environmental and public health issues, can the end of civilization be far off?


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 June 28, 2015 12:55 PM.

The previous post in this blog was NY Environmental Enforcement Update March 2015, Vol. II, #3.

The next post in this blog is NY Environmental Enforcement Update May 2015, Vol. 2, #5.

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