The New York State Department of Environmental Conservation (DEC) recently issued its final environmental audit policy, Commissioner Policy 59. DEC encourages policy participation by waiving or reducing penalties for environmental violations that regulated entities discover through an environmental audit, and expeditiously report and correct. Other incentives include avoidance of inspection priority, public recognition by DEC, and the ability to enroll in certain technical and financial assistance programs. The incentives encourage companies to audit their operations and adopt effective approaches to curb environmental violations, such as implementing environmental management systems and pollution prevention. The policy will also seek to reward those entities that go “beyond compliance” by incorporating environmental management systems and pollution prevention into their operations.
Greenberg Traurig’s Steve Russo and Adam Silverman wrote about the draft policy in May. The final policy contains several differences from the draft policy, the most significant of which are as follows:
- The final policy explains that qualifying environmental audit activities may include “a formal audit by a third-party; an informal compliance review by a facility employee; and a compliance assessment conducted pursuant to a facility’s environmental management system.”
- The final policy specifies that “a regulated entity is deemed to have discovered the violation when any officer, director, employee, or agent of the facility knows or has reason to believe that a violation has, or may have, occurred.”
- Eligibility under the policy will be determined by the Regional Office within 30 days of receipt of the disclosure. The determination of eligibility does not extend the time frame for correcting the violation.
- The final policy expands the group of violations that cannot take advantage of the policy to include a violation of a judicial or administrative order, and a violation of the terms of any response, removal or remedial action covered by a written agreement.
The final policy clearly aims for broad participation without softening DEC’s ability to enforce NY’s environmental laws against bad actors. Businesses with New York operations should examine their environmental compliance programs and consider availing themselves of Commissioner Policy 59.