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NY Environmental Enforcement Update, June 2015, Vol. II, # 6


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

Enforcement News

Hudson PCB Dredging - Was It Worth It?

Later this year, General Electric Co. expects to finish six years spent removing 2.7 million cubic yards of PCB contaminated river sediment from the Hudson River. The removal was mandated by a federal CERCLA (Superfund) agreement with EPA. Cleanup costs will be approximately $2 billion. However, experts estimate that it may take at least 5-10 years of careful monitoring to determine the ultimate benefit to overall water quality. Quality issues include whether and when to lift the current bans and restrictions on fish consumption.


Dutch Court Orders More GHG Cuts

A Dutch court ordered the government of the Netherlands to cut greenhouse gas (GHG) emissions more than proposed to combat climate change. Supporters hope that this determination can be used as an international precedent to seek similar rulings in other jurisdictions. The plaintiffs had argued that the government has a legal obligation to protect its people against "looming dangers" such as the effect of climate change on a low-lying country like the Netherlands.


E Cig. Crackdown Continues

The NY Attorney General reached agreements with four liquid nicotine retailers whose products were being sold in New York in violation of a law requiring that this form of nicotine be sold in child-resistant packaging. Combined civil penalties of $95,000.00, were assessed. This matter also reaffirmed the old axiom that ignorance of the law is no defense.


NYS Officially Completes Ban on High-Volume Hydraulic Fracturing

DEC has officially prohibited the use of high-volume hydraulic fracturing (HVHF) for the extraction of natural gas in New York State. The issuance of a formal Findings Statement completes the state's seven-year review of this process.

As previously reported, NYS had already indicated that it would enact a ban on HVHF in prior DEC-NYSDOH administrative documents. The Finding Statement represents the final administrative step in the long process to reach this decision as demonstrated by the voluminous record.


Take Heed, EPA Next Gen. Enforcement is here!

EPA plans to continue the implementation of the "Next Generation" enforcement initiative. Under this initiative, the agency will require more electronic reporting for most required environmental compliance reports. This will dramatically increase the quality of this reporting. Therefore experts opine that these improvements in electronic data collection could lead to increased enforcement.


New NY Air Regs Take Effect

DEC has finalized changes to air permit regulations for process related emissions, 6 NYCRR Part 212, Process Operations. These changes become effective on June 14th, 2015, potentially impacting any regulated source that has air pollutant emissions associated with its manufacturing operations. Sources will be required to address the rule when renewing or modifying their air permit, or when applying for a new permit regardless of permit category.


Airplane Emissions Regulation Takes Flight

EPA has started the administrative process to promulgate air pollution rules to limit the amount of greenhouse gas (GHG) emissions from aircraft engines. But, any such rules would not apply to military or recreational aircraft.


Suffolk Co. Joins Albany Co. in Banning Toxic Toys; Statewide Ban Considered

Suffolk joins at least two other NY counties in passing a law that bans the sale of toys with contents that exceed certain toxic levels.

NY legislators propose to establish a list of toxic chemicals that can cause major health problems with a similar statewide ban, the Child Safe Products Act (S.4102/A.5612). The law is now before the state legislature.


Utility Pole Pesticide Fight Looms

Pentachlorophenol (PCP) is a highly effective pesticide and wood preservative commonly used to pre-treat the nations many millions of utility poles and railroad ties. It is also highly toxic. Statewide, utilities are now being challenged over the use of PCP in utility poles. PCP has been long banned from most other products. But, groundwater contamination from the poles is of immediate concern.


State Preemption Further Affirmed (Non-environmental)

This case, People v. Diack, 2015 NY Slip Op 1376 - NY: Court of Appeals 2015, is an interesting decision about state preemption over local laws in a non-environmental area. Here, the Court of Appeals finds that state sex offender laws take precedence over local offender residency restrictions.


Sewage Pollution Rt. To Know - Comments Sought - CSO Grants Available

DEC is seeking public comment on new draft regulations for the state's sewage spill reporting law. It also announced CSO (combined sewer overflow) grant funding for municipal CSO's. The proposed regulations appear at 6 NYCRR Parts 621 and 750.


BCP Regulatory Comments Sought

The proposed rulemaking for the recently revised state Brownfield Cleanup Program (BCP) would "define the terms "affordable housing project" and "underutilized" as part of the eligibility requirements for tangible property tax credits for brownfields in New York City. The "affordable housing project" definition potentially impacts affects tax credit eligibility. The proposed rulemaking also amends the "brownfield site" definition in accordance with the recent statutory amendments."


L.I. Garbage Train Comments Sought

DEC is seeking comments on a draft permit that would allow a Farmingdale facility to be used for one year for transporting baled and bagged municipal solid waste (MSW) to evaluate the effectiveness of various safety, odor and environmental impacts. This highlights the growing problems associated with processing the growing volume of MSW on Long Island.


State Forest Rangers Join the Fugitive Hunt! Annual Report Issued

The DEC Forest Rangers have contributed a significant presence to the large law enforcement contingent searching for the two murderers that escaped the Clinton Correctional Facility (Dannemora prison) in extreme northern NY. Searching rugged terrain is part of the Ranger's usual day at the office.

Recall that the Rangers are a police force separate and distinct from the Environmental Conservation Officers and do a significant amount of criminal and violation enforcement in their own right as indicated in their most recent 2014 Annual report (at pp. 56-58).


2014 Adirondack Park Agency Annual Report Issued

The 2014 APA Annual Report is out. Legal and enforcement summaries can be found at pp. 13-14.


Road Salt - The New Acid Rain?

Extensive environmental damage has been wrought by the heavy doses of road salt applied on wintry upstate NY roadways. Several steps can be taken by the state and local governments to mitigate the negative impacts on water quality caused by salt runoff.


Energy Enforcement

Canada Levels Criminal Charges in Quebec Oil Train Explosion

Canadian prosecutors charged nine parties allegedly responsible for the horrific 2013 Oil train derailment and explosion in Lac-Megantic, Quebec. The tragedy is frequently cited in issues surrounding the Port of Albany crude oil shipments (See item below).


Oil Train Summit Decries Accident Response Risks

The Albany County Sheriff convened a conference for first responders on the dangers of crude oil train accidents. Participants included personnel from out of state areas that have suffered through these disasters (See item above).


Crude Oil Train Financial Assurance Law Proposed

Legislators have proposed a law to compel transporters and handlers of crude oil to maintain adequate financial assurance to cover cleanup costs for a potential oil train disasters.


Are Crude Oil Trains Worth It?

The Albany Times Union analyzed the economic impact of the increased crude oil train traffic for the City. The impact of this industry may be less than thought.


Pressure against Oil Trains Pays Off

Constant public pressure has forced government to reevaluate regulatory standards for the increased numbers of crude oil trains flowing through the Port of Albany.


Local Farmers Fight N.G.

Local Capital District farmers are joining environmental groups to continue the fight against both the proposed Constitution and Northeast Energy Direct (NED) natural pipelines. Both pipelines would serve as a bridge to convey natural gas generated by Pennsylvania's hydro-fracking boom to markets in the Northeast and beyond. Critics also fear that the pipelines may be used to reintroduce fracking in NY where it is currently banned.


Zoning Fight against N.G. Gas Compressor

The Town of Nassau will use zoning to prevent a pipeline company's construction of a proposed 90,000-horsepower natural gas compressor station in rural Rensselaer County. The pipeline company will rely on federal preemption to counter this effort to stop the compressor.


Keep Indian Point Nuke Plant Open!

A trade group argued that closing this nuclear power plant would place an onerous burden on the grid and electricity consumers due to the lack of replacement power sources.


Indian Point Should Close Now!

In response to the item above, Paul Gallay, the president of the Hudson Riverkeeper organization argues for the closure of the aging Indian Point nuclear power plant. He also argues that sufficient power generation exists elsewhere to cover the loss of the plant's energy contribution to the grid.


People in the News

RIT Engineer New EPA Region 2 Division Director

EPA Region 2 announced that Rochester Institute of Technology engineer Dr. Anahita Williamson will be the new Director of the Region's Division of Environmental Science and Assessment in Edison, NJ.


State & Local Enforcement

Costly Fines in Open Burn Ban Crackdown!

DEC law enforcement issued 357 tickets for open burning-related charges during the spring statewide open burn ban that ran from March to May. The charges included 144 violations, 213 misdemeanors and written warnings for infractions including leaving an unattended fire, burning during the ban, unlawful disposal of solid waste and setting a fire that endangers the property of another. Penalties can range up to one year in jail and a $33,500 fine.


Animal Cruelty Sentencing in Albany

An Albany defendant pleaded guilty and was sentenced to 60 days for one misdemeanor count of Torturing or Injuring Animals by Failure to Provide Proper Sustenance, pursuant to NYS Agriculture and Markets Law 353. Defendant intentionally failed to provide food to her four dogs and nine cats.


It's Smarter To Upgrade Than Pay Fines

A major Rotterdam chemical company will be seeking a state permit to install a new thermal oxidizer that will remove hazardous air pollution and reduce greenhouse gas (GHG) emissions. Since 2011, the company has paid significant state penalties for numerous environmental violations detected by DEC.


Federal Enforcement

Marine Polluter Criminally Fined (District of New Jersey)

A commercial ship owner pleaded guilty to failing to maintain an accurate oil record book in violation of the Act to Prevent Pollution from Ships (APPS) and providing false statements to the U.S. Coast Guard concerning the vessel's records. The company was sentenced to pay a criminal penalty of $750,000 and placed on three years of probation. The ship's crew had dumped several barrels of oil wastes into the Atlantic Ocean off Florida while in transit to New Jersey.


FEMA Fraud Indictments (NDNY)

A Schoharie man was indicted on 13 felony counts of disaster-related fraud. The defendant allegedly made false statements and submitted false documents to the Federal Emergency Management Agency ("FEMA") following Hurricane Irene while applying for and receiving benefits paying his monthly rent. These alleged phony documents included fraudulent lease agreements and rent receipts.


DEC Region 4 Administrative Orders

In the Matter of Hess Retail Stores
Order on Consent
DEC File No, R4-2015-0206-10, PBS # 4-163740

Respondent, a convenience store and gas station in the City of Hudson, was assessed a penalty of $1,200, for the failure to secure or maintain monitoring wells and secondary spill containment on petroleum bulk storage (PBS) tanks pursuant to 6 NYCRR Part 613.


In the Matter of Johnston & Rhodes Blue Stone Co.
Order on Consent
DEC File No. R4-2015-0511-58

In a most unusual mining permit violation, a Walton, Delaware County mining company was assessed a $2,000, civil penalty for mining too close to an eagle nest in violation of ECL §71-1305(2) and the underlying permit special condition. Legally, eagles are usually protected by the provisions of Article 11, of the Environmental Conservation Law (ECL). But, prosecutorial discretion allows DEC to choose which law to apply in any given enforcement situation.


In the Matter of Atlas Health Care Linen Service
Order on Consent
DEC File No. R4-2015-0414-51

A Troy, NY commercial linen concern was found in violation of the air pollution standards of 6 NYCRR Part 200.7, for emitting lint into the environment from the external fan of a lint control unit. A civil penalty of $1,000 was assessed. Note: after 26 years, even I have to admit that lint based air pollution is a new one on me!


DEC Administrative Enforcement Orders, Decisions and Rulings

In the Matter of 715 Heights Corp., (170th Street)
Commissioner's Order, June 16, 2015
DEC Case No. 2-601666JB

The Commissioner granted the staff's motion for a default judgement pursuant to 6 NYCRR Part 622.15(b) and ordered Respondent to pay a $5,000.00, civil penalty for
violating ECL 17-1009 and 6 NYCRR 612.2 for failing to renew the registration of its NYC petroleum storage facility on or before the previous expiration date of July 1, 2013.


In the Matter of Wendy Daby
Commissioner's Order, June 16, 2015
DEC Case No. R5-20140225-2100, PBS No. 5-514063

The Commissioner granted the staff's motion for a default judgement pursuant to 6 NYCRR Part 622.15(b) and ordered Respondent to pay a $11,300.00, civil penalty with $8,000.00, suspended for violating five separate petroleum bulk storage (PBS) regulations in 6 NYCRR Parts 612 and 613. The violations derive from the improper closure and maintenance of above ground gasoline storage tanks located at Respondent's convenience store and gas station located in the Vermontville, Franklin County.


In the Matter of Craig D. Kincade
Commissioner's Decision and Order, June 11, 2015
DEC VISTA Index Nos. CO6-20061107-24 and CO6-20080331-9

Respondent allegedly maintained an unpermitted floating dock and stone steps, and cut, removed, injured, or destroyed trees on state forest preserve lands adjacent to the Stillwater Reservoir in the Town of Webb, Herkimer County in violation of ECL 9-0303(1) and (2). Respondent was assessed a civil penalty of $400, with that sum suspended, contingent upon respondent complying with the terms and conditions of the order.

This Decision and Order raises three points of interest:


  • When commencing an action by administrative complaint, Department's staff must amend that complaint - with all of the requisite procedural safeguards - rather than file for a 6 NYCRR Part 622.12, order without hearing, if new information arises subsequent to commencement;

  • An estoppel defense will not apply even if permission for the errant conduct on state lands had been approved by another state agency if DEC approval is also required;

  • A defense based on alleged vested property rights on state lands - here, a right to launch water craft - will likely require an exhaustive historical review of both the law and the individual history of the parcel at issue.

In the Matter of Lopatowski, Anthony d/b/a Safeguard Exterminating Services Inc.
Commissioner's Order, June 11, 2015
DEC File No. R2-20130111-12

The Commissioner granted staff's motion for a default judgment and assessed a civil penalty against Respondent pesticide applicator of $121,000.00, for the numerous and multiple sections of ECL 33-0907(1), ECL 33-1301(8-a), ECL 33-0903, ECL 33-1301(7) and 6 NYCRR Parts 326.7(a), 6NYCRR 325. Violations included operating without insurance, proper registrations, an applicator's certification and related records. On two occasions, Respondent also possessed "restricted use" pesticides without a purchase permit and without being a certified applicator.


Weird News

Corrupt, but Green, Scrap Metal Thieves Caught

Several City of Rensselaer municipal officials were criminally prosecuted for diverting the proceeds derived from recycled scrap metal from the City's coffers to their own pockets. But hey, at least they were still recycling.


Ray Gun Case Status (NDNY)

In the Update's favorite science fiction case, a federal Judge denied defendant's motion to dismiss and the accused "ray gun" KKK terrorist will go to trial in the NDNY.


Attention Earthlings - Another Solar Storm Hits!

This is at least the second major solar storm to hit Earth in 2015. Scientists fear that sooner or later the radiation emanating from one of these powerful phenomena will short circuit our now electronic and digital gizmo laden world.


It's Pollinator Awareness Week! How Did you Celebrate?

Quote, "Governor Andrew M. Cuomo issued a proclamation commemorating the week and affirming that New York State is committed to the promotion of the health and recovery of the pollinator population, which will be the focus of a new state agency task force." That just about says it all.


Annual NY Goose Drive Cancelled

Volunteer geese herders were disappointed when this year's goose drive, scheduled for the Wilson Hill Wildlife Management Unit, was cancelled by the DEC.

I wonder if the goose drive is anything like this one?

_____________________________________________________________________________________________________________________

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 August 1, 2015 1:38 PM.

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