The Siting Board cannot issue a Certificate unless it makes specific findings and determinations pursuant to Section 168 of the Public Service Law. These findings and determinations are described here. In a recent case, one wind energy developer argued that intervenor, municipal, and agency parties bear the burden of proving that a Certificate should not be granted. Will this argument prevail? And if so, how would the shift in burden of proof change the conduct of Article 10 proceedings?
The burden shifting argument is unlikely to prevail because both the State Administrative Procedure Act “SAPA” and Article 10 regulations place the burden of proof squarely an applicant for a Certificate. See State Administrative Procedure Act (“SAPA”) § 306(1) (“Except as otherwise provided by statute, the burden of proof shall be on the party who initiated the proceeding.”); 16 NYCRR 1000.12(b)(1) (“The applicant has the burden of proof to demonstrate that all findings and determinations required by section 168 of the PSL can be made by the board, and after the board’s jurisdiction has ceased, that all determinations required by the commission may be made.”). And legality aside, it would violate fundamental principles of fairness and due process for the Siting Board to simply presume a facility should be built unless other parties to the proceeding can prove otherwise.
But if the burden is in fact shifted, the impact on Article 10 proceedings would be dramatic. If state agencies or intervenors fail to identify potential problems early in the Article 10 process, would the case be disposed of via settlement without any testimony or cross-examination of witnesses? Would the initial review of an application for compliance with PSL 164 gain additional rigor, and would extended public comment be welcomed? Would Presiding Examiners entertain dispositive motions made by applicants and aimed at knocking out intervenor issues without the need for a live hearing and follow-on briefing? The answers to these questions are unknown, but if the burden of proof is shifted, Article 10 practitioners may soon know them all too well.
For inquiries about the process for siting large power plants pursuant to Article 10 of the New York State Public Service Law, please contact Benjamin E. Wisniewski. The Zoghlin Group represents individuals, public interest groups, and municipalities in Article 10 proceedings throughout New York State.
Last week, the Commissioner of the New York State Department of Environmental Conservation (the “DEC”) announced that a Niagara County man had been sentenced for an attack on an Environmental Conservation Police Officer.1 The attack allegedly occurred in 2018 when the defendant was driving an off-road Utility Vehicle (a “UTV”). DEC Commissioner Basil Seggos explained, “the defendant in this case purposely injured our officer in an attempt to evade charges, and I thank the Niagara County Sheriff’s Department and District Attorney ... for their help in bringing this case to justice.”
According to a DEC Press release, the Environmental Conservation Police Officer (the “ECPO”) responded to a report of trespassing on private property, and found the defendant and another man at the scene operating a UTV and an All-Terrain Vehicle (an “ATV”). Both men refused the ECPO’s order to stop. When the officer attempted to place the defendant under arrest, the defendant again refused to stop the UTV, and ended up dragging the ECPO while fleeing the scene. After being dragged for an estimated 400 yards, the officer reportedly sustained injuries to his forehead, as well as cuts and bruises to his arms and legs.
The DEC Bureau of Environmental Crimes Investigation led the search for the two men, with assistance from the Niagara County Sheriff’s Office and the New York State Police. The case was prosecuted by the Niagara County District Attorney’s Office. The defendant (the UTV driver) eventually pled guilty to assault in the third degree (a Class A misdemeanor), was sentenced by a Town Justice to one year in jail, and was ordered to pay $2,237 in restitution to the State for equipment that was destroyed during the assault.
The driver of the ATV, who had previously plead guilty to attempted reckless endangerment (a Class B misdemeanor) and ATV trespassing (a violation), paid $1,030 in fines and surcharges.
If these two men had just stopped when they were ordered to, they likely would’ve only been charged with ATV trespassing or a minor violation. Instead, their poor reaction in this situation led to more severe charges and sentences. This case highlights something that is obvious to most — you shouldn’t interfere with an investigation, refuse lawful orders, or assault an officer.
When faced with a government investigation, it’s important to respond calmly, deliberately, and peacefully. Being evasive, violent, or antagonistic will just land you in more trouble. If you find yourself the subject of an environmental investigation, you need to make sure you understand the reasons for the investigation, and get advice from a knowledgeable person who can help.
See “DEC Announces Sentencing of Man for 2018 Assault on an Environmental Conservation Police Officer,” New York State Department of Environmental Conservation, Public Involvement and News, Press Release, June 6, 2019, available at http://www.dec.ny.gov/press/117194.html.
Although the Siting Board makes the final decision to grant a Certificate of Environmental Compatibility and Public Need, most of an Article 10 proceeding is conducted before Presiding Examiners, not the Siting Board itself. The Presiding Examiners are administrative law judges from the New York State Department of Public Service and the Department of Environmental Conservation. Presiding Examiners are assigned to an Article 10 case shortly after a Preliminary Scoping Statement is filed, and remain with a case through the penultimate, trial-like adjudicatory proceedings. One of the last and most important actions taken by the Presiding Examiners is to issue a Recommended Decision to the Siting Board. The Siting Board relies heavily on the Presiding Examiners Recommended Decision when deciding whether to grant or deny a Certificate.
On May 23, 2019, the Presiding Examiners in the Application of Eight Point Wind, LLC, Case No. 15-F-0062 issued a Recommended Decision (available here).On May 24, 2019, the Presiding Examiners in the Application of Baron Winds, LLC, Case No. 15-F-0122, issued a Recommended Decision (available here). Check back to this blog soon for my analysis of some of the key recommended findings and determinations in these decisions.
Rochester, N.Y., May 15, 2019— The Daily Record selected Frances M. Kabat, Associate Attorney, The Zoghlin Group, PLLC. to receive an Excellence in Law Award, “Up & Coming Attorneys”.
The Daily Record’s Excellence in Law program honors members of the legal community with three distinguished awards: Top Women in Law, Up & Coming Attorneys, and Unsung Legal Heroes.
Top Women in Law awards recognize the outstanding accomplishments of female attorneys who are making notable contributions to the legal profession while inspiring positive change in the community. The Up & Coming Attorneys category honors those who demonstrate professional accomplishment, community service and a strong commitment to the legal profession early in their careers. To be considered, nominees must be admitted to the bar for 10 years or less. The Unsung Legal Heroes category honors staff members—paralegals, legal secretaries, administrators, law librarians and legal marketers—who help lawyers achieve success.
“This year’s Excellence in Law honorees are exceptional. Not only are they professionally accomplished, but they are committed to making a difference in their community,” said Suzanne Fischer-Huettner, publisher of The Daily Record. “The honorees, in the categories of Top Women in Law, Up & Coming Attorneys, and Unsung Legal Heroes, uphold the highest legal standards and improve communities throughout Western New York. It is an honor for The Daily Record to recognize their accomplishments.”
The 2019 Excellence in Law Awards will be presented June 6 at a luncheon and awards reception starting at 11:30 a.m. at the Hyatt Regency Rochester, 125 East Main Street in Rochester. Winners will be profiled in a special magazine that will be inserted into the June 7 issue of The Daily Record and available online at www.NYDailyRecord.com.The event hashtag is #TDREvents.
For more information about sponsorships and tickets for the Excellence in Law Awards, visit www.NYDailyRecord.com or call 585-363-7271.
About The Daily Record
The Daily Record has been providing essential legal news and information to Western New York for 111 years. With insightful articles and columns keeping the community apprised of the latest industry trends; local, state and federal decisions; bankruptcies, judgments, foreclosures and public notice information; plus comprehensive listings of up-to-date business transactions for Monroe County, The Daily Record is your source for all things law, real estate and finance. The Daily Record is part of BridgeTower Media, one of the country’s leading business-to-business media companies with 44 print and digital publications in more than 20 U.S. markets.
2019 Excellence in Law Honorees
Top Women in Law
Kathryn Bruns, Faraci Lange, LLP
Leslie M. Connolly, Harter Secrest & Emery LLP
Christina M. Deats, Law Offices of Pullano & Farrow PLLC
Carey Ann Denefrio, Littler Mendelson, P.C.
Sandra Doorley, Monroe County District Attorney’s Office
Kelly Gotham, NYS Unified Court System
Laura A. Myers, The Wolford Law Firm LLP
Anita L. Pelletier, Nixon Peabody LLP
Up & Coming Attorneys
Jennifer Aronson-Jovcevski, Boylan Code LLP
John P. Bringewatt, Harter Secrest & Emery LLP
Craig Diallo Carson, Esq., Law Office of Craig D. Carson PLLC
Maxwell Cohen, Monroe County District Attorney’s Office
Jillian Dunbar, Phillips Lytle LLP
Tyler Ellis, Morgenstern DeVoesick PLLC
Emily R. Fusco, Trevett Cristo
Frances M. Kabat, The Zoghlin Group, PLLC
Lucrecia Z. Knapp, Harter Secrest & Emery LLP
Anastasia M. McCarthy, Esq., Hurwitz & Fine P.C.
Anna S. M. McCarthy, Harter Secrest & Emery LLP
Marybeth McCarthy, Monroe County Public Defender’s Office
Anne M. McGinnis, Harris Beach PLLC
Kat Murphy, Nixon Peabody LLP
Lesley E. Niebel, Faraci Lange LLP
Abigail M. Norris, Bond Schoeneck & King PLLC
Jessica L. Paulin, Nixon Peabody LLP
Nicholas S. Proukou, Woods Oviatt Gilman LLP
Lindsay A. Rabitz, Broadstone Real Estate, LLC
Unsung Legal Heroes
Patrick Burke, Barclay Damon LLP
Jim Dukette, Empire Justice Center
Judy Gray, Bond Schoeneck & King PLLC
Kimberly Heller, Lacy Katzen LLP
Kristi Hughes, Empire Justice Center
Nancy E. Lopez, Nixon Peabody LLP
Clara E. Onderdonk, Ernstrom & Dreste, LLP
Brenda Rivera, Legal Assistance of Western New York, Inc. (LawNY)
Catherine Shrock, Segar & Sciortino, PLLC
Raymond Squilla, Telesca Center for Justice
Tracey Tronolone, Monroe County Public Defender’s Office
Property owners, businesses and municipalities across New York State are experiencing flooding at an historic rate. The causes run the gambit from poorly maintained municipal stormwater systems to the flooding we have seen in 2017 and 2019 along Lake Ontario. Water is one of the most destructive forces of nature and once it starts coming in it can be very difficult to stop.
If your property is currently flooding, you should do the following:
After the flood waters have receded, you should do the following:
Last week, the Town of Westerlo Planning Board determined that the Costanza Solar Project will not have a significant adverse environmental impact provided specific conditions are met, including (1) updating the Stormwater Pollution Prevention Plan (“SWPPP”) and (2) doubling the quantity of evergreen plantings in the c-100 area.
Because projects like this must be disclosed in New York State’s Environmental Notice Bulletin (the “ENB”), we now know that the proposal involves the amendment of a previously approved Site Plan. The new site plan would reduce the footprint at the northern most portion of the project due to the selection of more efficient panels. As in the original application, the proposed facility will produce 2Mw. The project is located at 198 County Route 405 in the Town of Westerlo, New York.
Interested businesses, groups, and individuals have thirty days from May 22, 2019 (the date of publication of the notice on the ENB) to submit comments related to this action. In our experience, many people do not fully appreciate the impact that their comments can have. Well-crafted comments can highlight community concerns, raise unforeseen issues that require further attention, demonstrate substantive or procedural impediments to approval, and otherwise prove persuasive to local agencies. We have found that those who participate in the process have a better chance of having their concerns heard and addressed.
See “Conditioned Negative Declaration — Albany County,” New York State Department of Environmental Conservation, Environmental Notice Bulletin, May 22, 2019, available at https://www.dec.ny.gov/enb/20190522_not4.html.
After the Tonawanda Coke plant closed, government officials and local researchers expressed concerns about the environmental impacts that chemical contamination could cause to nearby neighborhoods and the Niagara River. Those concerns were justified by the discovery of about 900,000 gallons of ammonia waste, leaking tanks, and soils contaminated with “heavy metals like lead, mercury, cyanide and arsenic, PCBs and polycyclic aromatic hydrocarbons, a class of chemicals linked to increased rates of cancer.”1
Researchers have been conducting additional soil sampling from the surrounding communities of Green Island and the City and Town of Tonawanda to determine how far off-site the chemicals may have travelled, and therefore how extensive of a remediation is required.
After an initial tour of the surrounding area, Basil Seggos, the Commissioner of the New York State Department of Environmental Conservation (the “DEC”), estimated that “cleaning up Tonawanda Coke could take years.” 2
Based in part on those discoveries, the Erie County Legislature adopted a resolution in January 2019 asking the United States Environmental Protection Agency (the “EPA”) to designate the Tonawanda Coke facility a Superfund Site.3
But the Town of Tonawanda apparently has other plans for the Site. In a letter to the DEC, the Town Supervisor for Tonawanda requested that the DEC take the site off the Superfund list and re-assign it to the DEC’s Brownfield Cleanup Program (the “BPC”), which was established “to encourage private-sector cleanups of brownfields and to promote their redevelopment as a means to revitalize economically blighted communities.” According to local officials, the BPC could help facilitate a faster, safer, and more cost-effective cleanup and redevelopment of the site.
The questions and debates that the local municipalities are facing with the Tonawanda Coke plant are by no means unique to this facility. In fact, a plethora of local governments, businesses, and individuals all across New York face questions all the time about how to deal with contaminated properties, including what government programs can help and how to recover cleanup costs from the person or entity responsible.
See “Tainted soil found near Tonawanda Coke as on-site threat lessens,” By T.J. Pignataro, The Buffalo News, January 16, 2019, available at https://buffalonews.com/2019/01/16/tonawanda-cokes-immediate-on-site-threat-lessens-as-attention-turns-to-tainted-soil-in-nearby-neighborhoods/.
See “DEC commissioner says Tonawanda Coke cleanup could take years,” By Chris Caya, WBFO, Buffalo’s NPR News Station, January 17, 2019, available at https://news.wbfo.org/post/dec-commissioner-says-tonawanda-coke-cleanup-could-take-years.
See “Erie County legislators: Make Tonawanda Coke a Superfund site,” By Sandra Tan, The Buffalo News, January 17, 2019, available at https://buffalonews.com/2019/01/17/erie-county-legislators-make-tonawanda-coke-a-superfund-site/.
The United States Department of Justice (the “DOJ”) recently opened a criminal inquiry into another automobile manufacturer’s emissions-certification process.1
In the last several years, as emissions and fuel efficiency standards have tightened, automobile companies have faced accusations of violating those standards and falsifying tests or technical data. Some have questioned the accuracy of the companies’ computer-modeling methods, while other companies have been accused of installing “defeat” devices to help their vehicles cheat on the emissions tests.
In January, one automobile company paid the DOJ nearly $800 million dollars to settle claims that it had allegedly equipped vehicles with illegal emissions-management software. Likewise, other automobile companies have incurred billions of dollars in fines and legal settlements tied to alleged attempts to circumvent emissions requirements and cheat on emissions tests. As the automobile industry is seeing, taking shortcuts — or intentionally cheating to avoid compliance — can lead to substantial legal problems, including criminal investigations.
Although environmental laws and regulations can be complex and technical, ensuring strict compliance is extremely important. Whether you’re a Fortune 500 company, a statewide operation, or a small business, it’s better to incur the costs of compliance up-front than to cut-corners and risk large fines, legal liability, and criminal prosecution. Often that means engaging professionals to help you understand the legal constraints (such as on discharges), whether you are required to register or report to administrative agencies, or how to obtain and renew any required permits.
See “Ford Says Justice Dept. Has Opened Criminal Inquiry Into Emissions Issues,” By Tiffany Hsu, The New York Times, April 26, 2019, available at https://www.nytimes.com/2019/04/26/business/ford-emissions-criminal-investigation.html.
Earlier this year, the New York State Department of Environmental Conservation (the “DEC”) presented the results of a comprehensive environmental investigation of the Niagara Sanitation Landfill near North Tonawanda, New York1. The Landfill had accepted a variety of waste from the surrounding community over the course of its operation from 1955-1968, including soils contaminated from construction of the LaSalle Expressway and from Love Canal waste.
When the DEC and the New York State Department of Health investigated the Landfill in the 1980s and 1990s, they initially determined that it did not pose a significant threat to public health or the environment. However, DEC re-evaluated the area in 2013, and discovered that on-site areas of exposed waste and elevated contamination levels were present. This caused the Landfill to be reclassified as a Class 2 Superfund site in December 2015.
As a result of the reclassification, a full comprehensive remedial investigation was required. Occidental (previously Hooker Chemical) then entered into a consent order with the DEC, voluntarily removed the Love Canal-related waste in 2014 and 2015 and disposed of it at an approved facility.
Despite these findings, the DEC assured nearby residents that “there is no migration of contamination from the landfill adversely impacting surrounding properties.”
However, after some nearby residents’ homes tested positive for hazardous chemical materials, a group of citizens sued the Town of Wheatfield. Their lawsuit alleges that contaminated water from the site — containing arsenic, barium, lead, and mercury — migrated onto adjacent properties and into the sewer system, causing health issues for the residents.
Stories such as these demonstrate the importance of ensuring that hazardous materials are disposed of properly, and the significant problems that can result if proper steps are not taken.
See “DEC Presents Niagara Sanitation Landfill Results,” By David Yarger, Tribune, WNYPapers, April 4, 2019, available at https://www.wnypapers.com/news/article/current/2019/04/04/136591/dec-presents-niagara-sanitation-landfill-results.
In working with municipalities and individuals across the State we have encountered a common concern. Many people believe that Article 10 of the New York State Public Service Law (available here) expressly preempts all local zoning and land-use laws. This concern can lead to a fatalistic attitude and stymie active participation by host municipalities and intervenor parties in Article 10 proceedings. In my personal opinion, that concern is overblown. The interplay between Article 10 and local law is much more nuanced than a case of express supersession.
As a threshold issue, Article 10 does not expressly preempt all local laws—it only expressly preempts local laws that are procedural in nature or that require local permits for the construction of a facility. Unlike procedural laws, Article 10 does not expressly preempt substantive local laws such as height limitations, setback buffers, and zoning district requirements. Instead, the rule is that the Siting Board must apply such substantive laws by default. This procedural/substantive distinction in the law and regulations signals a clear recognition by the State government that a local government’s constitutional power to plan and regulate land-use should not be so easily overridden.
But the story doesn’t end with an easy distinction between procedural and substantive laws. First, the line between what is procedural and what is substantive is often gray and wavering. Second, even if a law is substantive, the Siting Board still has the power “not to apply” the law. This places the burden of proof on an applicant to show why a local law should be overridden, and the burden is both heavy and highly technical.
On April 24, 2019, Excelsior Energy, LLC (a subsidiary of NextEra Energy Resources, LLC), submitted a Public Involvement Program for a proposed solar energy facility to be located in the town of Byron, New York. Additional information about the project is available on the New York DPS DMM website for the project, available here.
As of May 6, 2019, there are no public comments about the project or parties to the proceeding. Only the Applicant’s employees and attorneys have appeared.
The filing of the PIP commenced a 150 day waiting period before the Applicant can proceed to the next step in the Article 10 process: the filing of a Preliminary Scoping Statement. In the interim, staff of the Department of Public Service will review the PIP and provide recommendations on how it could be improved The Applicant may then choose to incorporate or reject the suggested changes.
Unfortunately, the Applicant has already stated that it will not provide critical mailings relating to the availability of intervenor funding to most area residents: “Besides the open house notifications, Excelsior Energy Center does not plan additional broad mailings to area residents that do not register as stakeholders.” It remains to be seen how many residents actually “register” as stakeholders in response to the “general Project information” flyers they will receive. Will Excelsior Energy become yet another project where members of the local community only become aware of a project when it is too late to meaningfully participate in the pre-application phase of the proceeding?
Greene County’s plan to construct a new jail in Coxsackie, New York raises questions about how the proposed project will impact the environment and nearby residents. The project has made news recently as politicians and the public debate the size and cost of the proposed facility.1 According to recent reporting, the jail would take at least three years to complete, and could involve the County taking out a $39 million bond with the United States Department of Agriculture.
Because projects like this must be disclosed in New York State’s Environmental Notice Bulletin (the “ENB”), we now know that the proposal involves the construction of “an 80-bed County Jail facility with associated access roads, parking, and stormwater management areas for a total disturbance area of approximately 21.2 acres.”2 The building itself would include approximately 63,275 square-feet of floor space and, as currently designed, will cause permanent impacts to New York State Wetlands. The project also raises concerns about effects on protected wildlife because the site of the proposed jail is currently occupied habitat for the Short-Eared Owl (which New York State lists as endangered) and the Northern Harrier (which the State lists as threatened).
The proposal may also impact historical or cultural resources. According to the ENB, “the New York State Office of Parks, Recreation and Historic Preservation (“OPRHP”) has determined that the proposed activity will have an impact on registered or eligible archaeological sites or historic structures.” The potential impacts on the environment, historical resources, and nearby residents required the County to prepare a Draft Environmental Impact Statement (“DEIS”) for the proposed project, which is now on file with the Greene County Legislature. Those interested in learning more about the project should review the DEIS. Comments on the DEIS must be submitted in writing no later than May 3, 2019.
See “State approves jail project, recommends more beds,” By Sarah Trafton, Columbia-Greene Media, HudsonValley360, April 1, 2019, available at https://www.hudsonvalley360.com/article/state-approves-jail-project-recommends-more-beds?wallit_nosession=1.
See “Green County Jail Project, Application Identification Number 4-1928-00232/00001,” New York State Department of Environmental Conservation, Environmental Notice Bulletin, April 3, 2019, available at https://www.dec.ny.gov/enb/20190403_reg4.html#419280023200001.
On April 1, 2019, Morris Ridge Solar Energy Center, LLC (a subsidiary of EDF Renewables, Inc.), submitted a Preliminary Scoping Statement (“PSS”) for the proposed 1,350-acre Morris Ridge solar energy facility. Morris Ridge is proposed for the Town of Mount Morris in Livingston County, New York. Additional information about the project is available on the New York DPS DMM website for the project, available here.
Although the Morris Ridge solar project was publicly proposed on July 16, 2018, as of April 10, 2019 only four public comments on the project have been filed: three by local and state politicians who support the project, and one by a person who appears to generally support solar energy. The small number of comments raises concern that many people in the project area are not aware of the proposal. More vocal public opposition or support might be expected when a 1,350-acre facility of any kind is proposed for a rural community.
The United States Environmental Protection Agency (“EPA”) and the Army Corps of Engineers have proposed a new definition of Waters of the United States in an attempt to clarify federal authority under, and applicability of, the Clean Water Act (“CWA”)1. The deadline for submitting public comment on that proposed definition is rapidly approaching on April 15, 2019. A copy of the proposed rule can be found in the federal register2.
Since its inception in 1972, the Clean Water Act has regulated the discharge of pollutants into the “Waters of the United States”, but had not expressly defined the term. Prior to the implementation of the 2015 Rule, the definition of this term had been established by a number of Supreme Court decisions that only created additional uncertainties.
The proposed rule redefining “Waters of the United States”, if implemented in its current form, would replace the 2015 Rule promulgated by the previous administration defining the term, and would likely have the effect of reducing CWA jurisdiction overall.
If you are engaged in any activity that involves waterways or waterbodies that are not clearly navigable by boat, you should take a closer look at this proposed rule to determine how it may impact you. Your comments in support of or in opposition to the newly proposed definition are due by April 15, 2019.
For Environmental inquiries, please contact
A local recycling company in Wayne County was recently fined $725,000.00 by the New York State Department of Environmental Conservation (the “DEC”) for the illegal handling of electronic waste (“e-waste”)1. This whopping fine consisted of $225,000.00 that was to be payable within two years and an additional $500,000.00 fine that was held in abeyance if the company complies with the consent order entered with NYSDEC.
In August of 2016, the NYSDEC executed a search warrant at the Alpco Recycling facility in Macedon, NY2. Alpco is a local recycling facility known to take recyclable materials such as metals, cardboard, glass, and plastics. The facility was investigated for suspected non-compliance with New York’s Environmental Conservation Laws involving e-waste.
Electronic waste, or e-waste, as defined by New York’s Electronic Equipment Recycling and Reuse law regulates the disposal and handling of items such as computers; computer peripherals; small electronic equipment; small-scale servers; cathode ray tubes; or televisions that have been discarded or are entering the waste collection, recovery, treatment, processing, or recycling system, not including the casing or enclosure in which such item is typically assembled.
E-waste is known to contain toxic substances such as lead, mercury and cadmium, which if improperly handled, can leach into the ground and enter the groundwater.
Alpco lacked the appropriate permit to operate as an e-waste recycling facility, but was receiving e-waste such as old televisions and computer monitors, crushing them onsite and salvaging certain components for recycling.
This case demonstrates the significant, yet unavoidable, risk involved in not obtaining the correct permits or adhering to applicable regulatory program requirements.
For Government & Corporate Investigations inquiries, please contact
See “Alpco fined $225,000 for improper handling of e-waste,” by WHAM, March 31, 2017, available at https://13wham.com/news/local/alpco-fined-225000-for-improper-handling-of-e-waste.
See “Alpco Recycling in hot water with DEC?” by Waynetimes.com, Times of Wayne County, August 20, 2016, available at https://waynetimes.com/news/alpco-recycling-hot-water-dec/
The Coast Guard and the New York State Department of Environmental Conservation (the “DEC”) are investigating tar balls and oil sheen that were found at Coney Island and along Long Island beaches in March, 20191.
According to the Coast Guard, oil found in the Arthur Kill waterway may have come from a containership. Officials said that a 15-inch hole was discovered in one of the ship’s fuel tanks, which may have been the source of the spill. After running a chemical fingerprinting of the recovered oil, Coast Guard personnel verified that the spilled oil came from the leaking containership.
At least 87 people and 16 boats responded to assist in cleanup efforts. Captain Jason Tama, the incident coordinator, reassured the public that “our priorities continue to be the safety of everyone involved including the public and responders, and environmental cleanup.”
In our experience, oil spills can be costly and time-consuming to cleanup, and can have far-reaching and unexpected consequences. Under New York Law, an injured person may bring a claim directly against the person or entity that caused a petroleum discharge for costs associated with cleanup, and may recover both direct and indirect damages, including attorneys’ fees. Thus, oil spills can create serious liabilities. Those who think they may have caused an oil spill, or those who believe that someone else’s oil spill is affecting them or their property, should consult an environmental attorney to evaluate their options.
See “Coast Guard Investigating New York Oil Spill,” By Kirk Moore, WorkBoat, April 1, 2019, available at https://www.workboat.com/news/coastal-inland-waterways/coast-guard-investigating-new-york-containership-oil-spill/.
In January of 2019, three hunters were charged in the Town of Mount Morris when a stray bullet struck a nearby house. Although the residents of the home were inside, nobody was injured. According to the New York State Department of Environmental Conservation (the “DEC”), the hunters could end up losing their hunting privileges for up to five years.1
State DEC officials and the Livingston County Sheriff’s Office investigated the incident, which led to the hunters’ arrest on January 2, 2019.
However, their troubles didn’t end there. The hunters were charged with multiple counts for alleged misconduct that interfered with the investigation. Instead of just being charged with failing to carry tags afield while hunting, they now also face charges for tampering with physical evidence (a felony) and providing a false written statement.
After responding to the initial report, interviewing witnesses, and examining the evidence, investigators determined that the statements provided by the hunters were not credible. Apparently, the hunters attempted to conceal their actions by planting spent shell casings on the ground in an area where the shots did not occur and lying to investigators.
The lesson here may seem obvious at first — don’t lie to investigators or attempt to cover up an accident — but it’s a mistake made all too often. Our experience with government investigations indicates that, when faced with potential liability, lying to or misleading authorities is never the right move. When in doubt, seek qualified legal counsel. They will be able to guide you through an investigation and help you avoid making the same mistakes that the hunters made here.
See “DEC: Hunter accused of firing bullet that struck Mount Morris home could lose license,” By Ben Beagle, Livingston County News, January 9, 2019, available athttps://www.thelcn.com/lcn01/dec-hunter-accused-of-firing-bullet-that-struck-mount-morris-home-could-lose-license-20190109.
On February 26, 2019, a novel procedural teleconference was held in the matter of Canisteo Wind Energy LLC. Canisteo Wind is a nearly 300 megawatt wind project proposed for Steuben County, New York. The DMM website for the case is available here.
The procedural teleconference was a first-of-its-kind in any Article 10 proceeding, and signaled an attempt by Presiding Examiners to address issues related to party status, intervenor funding, and scheduling earlier in the year-long Article 10 adjudication. Moving forward, this firm hopes that all Article 10 cases incorporate an initial teleconference similar to the conference held in Canisteo Wind.
In the future, the process would be further improved if intervenor awards were made verbally during the initial teleconference. By issuing an earlier ruling on party status and intervenor funding, intervenor parties would have additional time to review technical application documents with their attorneys and experts. This would help intervenors crystalize their concerns into litigable (and potentially resolvable) issues.
DEC Commissioner Basil Seggos announced in late 2018 that New York State had executed an Order on Consent with SA Dunn & Company, LLC (“Dunn”), which operates the Dunn Facility (a landfill and sand mine operation), for ongoing violations of its state mining permit1.
The Order was the culmination of a DEC investigation that began in January of 2018, when DEC observed persistent dust clouds emanating from the Dunn facility. Around that time, the Rensselaer County Legislature passed a resolution urging the DEC to increase their monitoring of the Dunn Landfill operations.
As a result of their investigation, DEC determined that “operational deficiencies [at the Dunn facility] were adversely impacting the quality of life in the surrounding community” and promised to take “all necessary measures to ensure this neighborhood is protected [and] to hold this facility accountable.” DEC Commissioner Seggos commented, “New York’s stringent rules and regulations governing mining operations exist to ensure facilities operating in our state adhere to the safest practices and highest standards possible to protect public health and the environment.”
The order assessed a $100,000 penalty against the Dunn Facility, required it to (1) develop and implement a dust control plan and (2) undertake several improvements to achieve significant dust reduction, and imposed a $225,000.00 Environmental Benefit Project primarily for the benefit of the Rensselear City School District and local community. Failure to comply with the Consent Order could lead to additional fines and even the revocation of the Facility’s permits.
Our experience with government investigations and the DEC indicates that an operator’s noncompliance with environmental laws or permit conditions can become a significant liability. This case demonstrates that obtaining a DEC permit does not end a facility’s obligations — they must still comply with applicable laws, regulations, and the conditions of their permit(s). In fact, permits often come with several conditions, the violation of which can result in fines or even permit revocation, which can be extremely costly to operators.
To avoid these potential risks and liability, operators should assiduously ensure that their facilities are in strict compliance. Host Municipalities, and those who live nearby such facilities, may do their part by reporting suspected violations to the governing federal, state, or local agencies for investigation and enforcement.
See “Landfill Operator in Rensselaer fined by DEC,” By Nicholas Buonanno, The Record, August 30, 2018, available at https://www.troyrecord.com/news/landfill-operator-in-rensselaer-fined-by-dec/article_37a8c768-fed1-5bd6-a9a5-88598be95045.html
On February 27, 2019, Invenergy Solar Project Development LLC submitted a revised Public Involvement Plan (“PIP”) for the proposed 3,800 acre Horseshoe Solar energy facility. Horseshoe Solar is proposed for the towns of Caledonia and Rush, primarily in Livingston County, New York.
Although the Horseshoe Solar project was publicly proposed on October 5, 2018, as of March 19, 2019 only one public comment on the project has been filed. This raises a concern that many people in the project area may not be aware of the proposal. More vocal public opposition or support might be expected when a 3,800 acre facility of any kind is proposed for a rural community.
Our experience in other Article 10 proceedings around New York indicates that virtually all PIP’s fail to provide the public with adequate notice of a project, particularly during the pre-application phase. PIP’s also often fail to educate the public about opportunities to participate in the Article 10 siting process. Such opportunities include the ability to request intervenor funding, attend stipulation negotiations, or provide comment and testimony during the adjudication phase. The lack of an effective PIP enforcement mechanism is a structural deficiency in the Article 10 and can lead to a lack of early and meaningful public participation in the process.
On February 27, 2019, Invenergy Solar Project Development LLC submitted a revised Public Involvement Plan (“PIP”) for the proposed 3,800 acre Horseshoe Solar energy facility. Horseshoe Solar is proposed for the towns of Caledonia and Rush, primarily in Livingston County, New York. The project also includes a major electrical substation in Rush. Additional information about the project can be found on the DMM website for its associated Article 10 proceeding, available here. A map of the facility is available on the official Horseshoe Solar website here.
The filing of the revised PIP is significant because it starts a 150-day period during which the Applicant is supposed to consult with the public, host towns, and state agencies about the project and potential impacts. After the consultation period ends, the Applicant can proceed to the next stage of the Article 10 review process by filing a Preliminary Scoping Statement (“PSS”).
On February 8, 2019, Galloo Island LLC withdrew its Article 10 Application for the 102.3 megawatt “Galloo Island Wind Farm”. Additional information about this proceeding, and the circumstances of the Applicant’s withdrawal, are available on the DMM website for Galloo Island.
The withdrawal comes after repeated delays in the Article 10 proceeding and after intervenor parties raised concerns over the developer’s “character” as an applicant. The Presiding Examiners noted, “[m]ore importantly, the question of Galloo’s compliance with [Code of Conduct] obligations is relevant to Galloo’s character and fitness, an issue open for the parties to raise and the examiners and Siting Board to review in an Article 10 proceeding.” Case 15-F-0327, Second ruling on Discovery Objections, p. 6 (available here).
Any party to an Article 10 proceeding, whether for or against a specific project, should review the Galloo Island docket.
The Town of Carmel’s “decision to dump mounds of asphalt millings eight feet high near the … shore [of Lake Mahopac]” sparked an Investigation by the New York State Department of Environmental Conservation (the “DEC”)1. That’s because a January 2019 DEC ruling prohibited the use of asphalt milling as fill in the state of New York. The Town brought the millings to the lakeside property “to fill in the low spots” and to raise the level of the land, which often floods.
However, asphalt millings contain compounds that have caused cancer in laboratory animals. So when it rains, stormwater may carry those compounds into local water bodies and beyond, potentially causing contamination and negative environmental or health impacts. This is especially concerning to Town residents, environmentalists, and the DEC because Lake Mahopac provides drinking water for about 450 households.
Here, the Town’s seemingly innocuous decision about where to store excess asphalt millings from road resurfacing jobs may now lead to a costly investigation, expansive remediation, fine, or even litigation. Handling government investigations can be complex, but the right knowledge and experience can help mitigate the damage. That’s because some problems can be avoided when you know where to look and can see issues coming. Whether it’s a local municipality, a small business, a homeowner, or a developer, seeking advice early can be critical to identifying, avoiding, or mitigating environmental liability, and to responding to government investigations when they arise.
See “Lake Mahopac Park Project Faces State Environmental Investigation, reveals local ties,” by David McKay Wilson, Rockland/Westchester Journal News, Feb. 8, 2019, available at https://www.lohud.com/story/money/personal-finance/taxes/david-mckay-wilson/2019/02/08/lake-mahopac-park-dec-probe/2794088002/
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