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Proposed DEC Policy Encourages Self-Policing for Civil Environmental Violations

By: Vicki S. Treanor

On February 4, 2013, the New York State Department of Environmental Conservation (“DEC”) issued a draft Commissioner’s Policy setting forth incentives for businesses to police themselves for potential environmental violations.  The draft Environmental Audit Incentive Policy, the first formal proposed change in DEC penalty and compliance policies in at least ten years, signals a willingness on the agency’s part to work with regulated entities to reduce the costs of enforcement for both government and business.  The policy would expand upon, and supersede, an earlier policy which was limited to small businesses, CP-19: Small Business Self-Disclosure Policy.

Highlights of the proposed policy are set forth below:

  • Regulated entities that voluntarily disclose a violation or suspected violation within 30 days from discovery and correct the violation within the 60 days from disclosure will receive a waiver of the gravity component of their penalties if they are otherwise eligible for penalty mitigation, subject to variations in the above time frames as required by law or specified in an agreement with DEC.
  • New owners of regulated entities are given a longer disclosure period of 60 days from discovery.
  • An entity that enters into a comprehensive environmental audit agreement with DEC becomes eligible to apply for a number of state-sponsored financial incentives, including assistance for the cost of compliance.
  • An entity that enters into a comprehensive environmental audit agreement with DEC and implements an environmental management system also receives a reduction in the economic benefit component of any penalty arising out of a disclosure, commensurate with the amount the entity commits to investing in pollution prevention at the facility.

The policy explicitly announces that it does not apply to criminal violations, does not create rights enforceable by any party, and does not restrict the authority or enforcement discretion of the Commissioner. The proposed policy sets forth ways in which the agency may exercise its discretion not to bestow the policy’s benefits on a given entity:

  • The policy excludes regulated entities deemed to have a “history of non-compliance.”
  • The policy excludes violations evidencing past noncompliance, violations reported by members of the public, violations discovered through DEC inspections, and violations legally required to be self-reported.
  • The policy excludes violations “resulting in a natural resources damage claim, serious actual harm, or one that may have presented an imminent and substantial endangerment to human health or the environment.”

The draft Environmental Audit Incentive Policy is available for public review and comment until April 22, 2013. Written comments may be addressed to

Monica Kreshik
NYSDEC
Office of General Counsel
625 Broadway
Albany, NY 12233-1500
ogc@gw.dec.state.ny.us

For more information about DEC’s draft Environmental Audit Incentive Policy, please contact Michael Lesser.

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