New DEC Policy Encourages Self-Policing, Will Hinder Enforcement
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The New York State Department of Environmental Conservation (DEC) recently finalized a new policy, Commissioner Policy 59 / Environmental Audit Incentive Policy (Audit Policy), aimed at encouraging regulated entities to use environmental audits and increase compliance with environmental laws and regulations. The Audit Policy, which took effect on November 18th, allows DEC to reduce or waive civil penalties for regulated entities that violate New York State environmental laws or regulations, when they discover and then self-report those violations. Any entity regulated by DEC that meets the eligibility criteria can participate, including large facilities. According to DEC, the purpose of the Audit Policy is to encourage regulated entities to “adopt effective approaches to prevent violations” and improve environmental compliance.
Unfortunately, several aspects of the policy are overly broad – effectively leaving the fox in charge of the hen house – and are instead likely to result in less compliance. For example, the Audit Policy:
- allows regulated entities to receive penalty mitigation for violations that are self-reported within 30 days of discovery, a longer time frame than the U.S. Environmental Protection Agency and neighboring states, which require reporting within 10 – 21 days of discovery in order to receive such mitigation;
- allows DEC to waive the economic benefit portion of a civil penalty, which could allow entities to keep economic benefits resulting from a violation of environmental law;
- may allow an entity to receive penalty mitigation from reporting a single violation while refraining from reporting other facility violations, which could be more serious;
- allows new owners to receive penalty mitigation for reporting violations that are already required by law to be reported; and
- does not require public outreach, meaning that the public does not have to be notified if an entity reports a violation and/or receives penalty mitigation.
While Riverkeeper is very concerned about these and other aspects of the Audit Policy, we do support DEC’s exclusion of entities with a history of non-compliance over the past 5 years from policy benefits and the agency’s list of ineligible violations, including criminal violations. We also support the Audit Policy’s requirement that violations be reported in writing, something we suggested in our comments on the draft Audit Policy back in April. And we continue to support increases in funding for DEC enforcement staff.
We cannot, however, support the extent to which the Audit Policy will hand enforcement oversight to regulated entities, and plan to keep a close eye on implementation of the policy and effects on DEC enforcement.