New York State Department of Environmental Conservation Issues Draft Self-Audit Policy

Environmental Law

 

The New York State Department of Environmental Conservation (“NYSDEC”) has recently issued a draft Self-Audit Policy which will encourage entities to report environmental violations at their facilities. The Policy will enable entities that report environmental violations to reduce or avoid fines normally imposed by such non-compliance. Those entities enrolled in the self-audit program will be required to report any non-compliance violations within 30 days of discovery, and correct the violation with 60 days of its disclosure. Further, those entities that self-audit will be considered a “low priority” site for future NYSDEC compliance inspections.

NYSDEC is responsible for ensuring that public and private entities doing business in New York State comply with environmental law and policy. NYSDEC has the authority to inspect these entities and enforce penalties against those that violate these laws. “However, the high volume of activities potentially affecting human health and the environment as well as practical constraints, including resource limitations, compel the Department to evaluate and implement auxiliary strategies to address compliance with the Environmental Conservation Law (ECL),” as stated in the draft Self-Audit Policy.

It is no secret that NYSDEC’s resources are depleted, and the reality is NYSDEC cannot be everywhere to ensure that all public and private entities comply with New York’s environmental laws, from those using hazardous substances in the manufacturing process to those discharging wastewater during industrial operations. The goal of the self-audit policy is to alleviate some of this burden, but more importantly, to encourage both the voluntary disclosure of noncompliance and the reduction of environmental violations. Additionally, regulated entities that commit through a Self-Audit Agreement “to reduce the environmental impact of its activities, products and services by using environmental performance improvement tools and/or pollution prevention measures” will be rewarded with certain incentives under the Policy.

NYSDEC’s self-audit policy does have its detractors.  New York State Assemblyman Andrew Hevesi (D-Queens) sent a letter to NYSDEC Commissioner Joseph Martens to voice his concern over the policy. Hevesi’s major concern is that entities that participate in the self-audit program may take advantage of the policy’s provision characterizing these entities as “low priority” sites for future inspections. Hevesi is troubled that these entities might only self-report minor violations to NYSDEC, while not disclosing major violations and taking advantage of the promise that NYSDEC inspectors are less likely to inspect the site. These concerns will have to be acknowledged and discussed by NYSDEC before the Policy is finalized.

NYSDEC, as detailed in the Self-Audit Policy, has the discretion to exclude certain regulated entities from benefiting from the Policy, including those entities with a history of non-compliance, warning letters, and/or notices of violation, or entities that were uncooperative in remedying past violations. Further, NYSDEC excludes certain violations from eligibility from penalty relief, including “violations resulting in serious actual harm, or may have presented an imminent and substantial endangerment to human health or the environment.”

The draft Self-Audit Policy message appears to be clear. NYSDEC cannot audit and enforce against every environmental violation in New York State, but the implementation of a Self-Audit Policy may reduce the burden on the NYSDEC as well as encourage continued compliance with environmental laws by New York State public and private entities.

For more information on the NYSDEC Self-Audit policy and environmental compliance, please contact Miriam Villani or Jason Kaplan.

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