Makes provisions regarding environmental benefit projects in lieu of civil penalties including establishing conditions for their acceptance and criteria for such projects; authorizes the attorney general to review and approve the settlement or administrative order.
TITLE OF BILL: An act to amend the environmental conservation law, in relation to environmental benefit projects in lieu of civil penalties
PURPOSE OR GENERAL IDEA OF THE BILL: The bill codifies requirements in the environmental conservation law in relation to requirements for partial settlements in the form of environmental benefit projects. Most of the requirements are currently contained in a draft Departmental guidance document. A number of provisions have been added and modified. Section 71-0520(1) defines terms used in the bill. Section 71-0520(2) establishes conditions which must be met in order for the Department to authorize environmental benefit projects. Section 71-0520 (3) establishes criteria which must be met by environmental projects. Section 71-0520 (4) specifies types of activities which do not qualify as environmental benefit projects. Section 71-0520(5) requires a payable economic benefit portion of the civil penalty which must be paid in full and a gravity portion of the civil penalty which reflects the seriousness of the violation which may be compensated in part by an environmental benefit project. If a respondent intends to deduct the cost of the environmental benefit project from its taxes, an adjustment to the gravity component which reflect the tax benefit must be calculated and included in the penalty. Section 71-0520(6) specifies project completion scheduling requirement s. Section 71-0520(7) requires notice in the environmental notice bulletin and a newspaper in general circulation in the area where the violations occurred at least 45 days before the settlement or order is executed; requires the Attorney General to review and approve the settlement or order; and allows the violator to publicize the environmental benefit project, acknowledging that it was performed in response to an enforcement action brought by the Department.
JUSTIFICATION: There have been instances in the recent past where the Department has approved projects authorized in lieu of monetary penalties which were not appropriate and did not benefit the community where the environmental damage occurred. The Department has proposed guidance which establishes requirements for "environmental benefit projects". This bill establishes many of the guidance elements in law and creates additional or modified requirements. Pollution prevention projects are limited to those which reduce or prevent the generation of pollutants, and do not include actions which improve compliance. This provision will ensure that the pollution prevention project is truly directed at source reduction.
Environmental education projects are directed toward assisting the public in understanding the nature of the industry which caused the violations, how the community was impacted and ways for the community to become more vigilant. This should avoid meaningless public education programs which do little to provide the public with useful information or understanding of the enforcement process.
The settlement must include a fully recoverable economic benefit monetary penalty and a payable portion of the gravity component of the penalty. This provision should assure that a company avoid monetary penalties by creating an environmental benefit project which it claims is equal to the amount of the penalties.
The project should be located in the county where the violation occurred, within twenty-five linear miles of the site of the violation. This should ensure that the communities which suffered the environmental insult will recover some value from the project.
A notice of the proposed settlement must be published in the Environmental Notice Bulletin and in a newspaper in general circulation where the violation occurred at least 45 days before the settlement/order is executed, thereby giving the public an opportunity to review the settlement prior to its adoption. If the violator publicizes the project or project results, the respondent must acknowledge that the project was performed as part of the resolution of an enforcement action brought by the Department.
PRIOR LEGISLATIVE HISTORY: 2011-12: S.7558/A.4134 - Died in Environmental Conservation 2009-10: A.1696 Referred to Codes 2007-08: A.877 Referred to Ways and Means 2005-06: A.6258 Reported Referred to Ways and Means
FISCAL IMPLICATIONS: None.
EFFECTIVE DATE: This act shall take effect immediately.
STATE OF NEW YORK ________________________________________________________________________ 830 2013-2014 Regular Sessions IN SENATE (PREFILED) January 9, 2013 ___________Introduced by Sen. PARKER -- read twice and ordered printed, and when printed to be committed to the Committee on Environmental Conservation AN ACT to amend the environmental conservation law, in relation to envi- ronmental benefit projects in lieu of civil penalties THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. The environmental conservation law is amended by adding a new section 71-0520 to read as follows: S 71-0520. ENVIRONMENTAL BENEFIT PROJECTS IN LIEU OF CIVIL PENALTIES. 1. FOR PURPOSES OF THIS SECTION, THE FOLLOWING TERMS SHALL HAVE THE FOLLOWING MEANINGS: A. "ECONOMIC BENEFIT OF NONCOMPLIANCE" SHALL MEAN THAT PORTION OF THE CIVIL PENALTY WHICH INCLUDES THE ECONOMIC GAIN TO THE RESPONDENT RESULT- ING FROM ITS FAILURE TO COMPLY WITH THE APPLICABLE STANDARDS, CALCULATED FROM THE FIRST DAY OF VIOLATION AND INCLUDES THE PRESENT VALUE OF AVOIDED CAPITAL AND OPERATION COSTS AND PERMANENTLY AVOIDED COSTS WHICH WOULD HAVE BEEN EXPENDED IF COMPLIANCE HAD OCCURRED WHEN REQUIRED. B. "ENVIRONMENTAL BENEFIT PROJECT" OR "PROJECT" SHALL MEAN A PROJECT IN LIEU OF FULL PAYMENT OF CIVIL PENALTIES UNDERTAKEN BY A VIOLATOR THAT IS INTENDED TO COMPENSATE FOR A VIOLATION OR CONTRAVENTION OF APPLICABLE STANDARDS. C. "GRAVITY COMPONENT" SHALL MEAN THAT PORTION OF THE CIVIL PENALTY WHICH REFLECTS THE SERIOUSNESS OF A VIOLATION, CALCULATED ON THE BASIS OF THE POTENTIAL AND ACTUAL HARM CAUSED BY THE VIOLATION, AND THE VALUE OF THE NATURAL RESOURCE DAMAGES, IF THE VIOLATOR IS NOT REPAIRING THE HARM. 2. THE COMMISSIONER SHALL NOT ENTER INTO ANY AGREEMENT OR ADMINISTRA- TIVE ORDER WHICH PROVIDES FOR A PARTIAL SETTLEMENT OF CONDITIONS IN THE FORM OF ANY ENVIRONMENTAL BENEFIT PROJECT IN LIEU OF THE PAYMENT OF CIVIL PENALTIES UNLESS ALL OF THE FOLLOWING CONDITIONS ARE MET:EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD02897-01-3 S. 830 2
A. THE RESPONDENT DOES NOT HAVE A RECORD OF SIGNIFICANT OR REPEATED NONCOMPLIANCE OR RECALCITRANCE; B. THE VIOLATION WAS NOT COMMITTED INTENTIONALLY, KNOWINGLY OR RECK- LESSLY, OR WITH ANY OF THE CULPABLE MENTAL STATES DEFINED IN SECTION 15.05 OF THE PENAL LAW; C. THE VIOLATION DID NOT RESULT IN A THREAT TO PUBLIC HEALTH OR CAUSE GRAVE OR SERIOUS ENVIRONMENTAL HARM; D. THE RESPONDENT SHALL, IN GOOD FAITH, UNDERTAKE ALL NECESSARY STEPS TO PROMPTLY CORRECT THE VIOLATION; E. PROJECTS SHALL BE INITIATED IN ADDITION TO ALL REGULATORY COMPLI- ANCE OBLIGATIONS AND SHALL BE DESIGNED TO PROVIDE AN ENVIRONMENTAL BENE- FIT BEYOND THE BENEFITS OF FULL COMPLIANCE; F. PROJECTS CANNOT BE ACTIVITIES OTHERWISE REQUIRED BY LAW OR ALREADY OBTAINABLE UNDER THE DEPARTMENT'S AUTHORITY; G. ALL VIOLATIONS SHALL BE CORRECTED TO ENSURE COMPLIANCE WITH APPLI- CABLE ENVIRONMENTAL LAW AND REGULATIONS, AND RESPONDENTS SHALL NOT BE GIVEN ADDITIONAL TIME TO CORRECT VIOLATIONS IN ORDER TO COMPLETE A PROJECT; H. PROJECTS SHALL NOT BE MEASURES WHICH THE RESPONDENT WOULD HAVE UNDERTAKEN ANYWAY WITHIN THE NEXT FIVE YEARS; I. PROJECTS SHALL BE DESIGNED TO PROVIDE A DISCERNIBLE BENEFIT TO THE ENVIRONMENT RATHER THAN TO THE RESPONDENT; J. TO ENSURE THAT THE DETERRENT EFFECT OF A SETTLEMENT IS ACHIEVED, SETTLEMENTS INVOLVING A PROJECT SHALL INCLUDE A PAYABLE PENALTY COMPO- NENT; K. THE PROJECT IS WITHIN THE CAPABILITY OF THE DEPARTMENT TO REVIEW AND MONITOR, AND SHALL YIELD BENEFITS SIGNIFICANT ENOUGH TO JUSTIFY DEPARTMENT OVERSIGHT; AND L. A PROJECT CAN NEITHER BE USED TO COVER ADMINISTRATIVE COSTS OF THE DEPARTMENT NOR AS A REVENUE GENERATING MECHANISM FOR THE DEPARTMENT. 3. ENVIRONMENTAL BENEFIT PROJECTS SHALL MEET THE FOLLOWING CRITERIA: A. THE PROJECT SHALL, TO THE EXTENT PRACTICABLE, BE LOCATED WITHIN THE COUNTY WHERE THE VIOLATION OCCURRED, WITHIN TWENTY-FIVE LINEAR MILES OF SITE OF THE VIOLATION; B. AN ENVIRONMENTAL RESTORATION PROJECT SHALL GO BEYOND REPAIRING THE DAMAGE CAUSED BY THE VIOLATION TO ENHANCE THE CONDITION OF THE ECOSYSTEM OR GEOGRAPHIC AREA ADVERSELY AFFECTED; C. A POLLUTION PREVENTION PROJECT SHALL SUBSTANTIALLY REDUCE OR PREVENT THE GENERATION OR RELEASE OF POLLUTANTS THROUGH SOURCE REDUCTION; D. A RISK REDUCTION PROJECT SHALL DEVELOP AND IMPLEMENT RISK MANAGE- MENT OR ACCIDENT PREVENTION/EMERGENCY PLANNING PROGRAMS WHICH PROVIDE PROTECTION IN EXCESS OF INDUSTRY STANDARDS AND EXISTING OR FUTURE REGU- LATORY REQUIREMENTS; AND E. AN ENVIRONMENTAL EDUCATION PROJECT SHALL, TO THE EXTENT PRACTICA- BLE, BE DIRECTED TOWARD UNDERSTANDING THE NATURE OF THE INDUSTRY WHICH HAS CAUSED THE VIOLATION, HOW THE VIOLATION IMPACTED THE COMMUNITY AND WAYS IN WHICH THE COMMUNITY CAN BECOME MORE VIGILANT IN MONITORING ENVI- RONMENTAL INSULTS AND VIOLATIONS. 4. AN ENVIRONMENTAL BENEFIT PROJECT SHALL NOT INCLUDE THE FOLLOWING: A. A CONTRIBUTION TO ENVIRONMENTAL RESEARCH AT A COLLEGE OR UNIVERSI- TY; B. A PROJECT, THOUGH BENEFICIAL TO THE IMPACTED LOCAL GOVERNMENT, UNRELATED TO ENVIRONMENTAL PROTECTION; C. STUDIES OR ASSESSMENTS WITHOUT A COMMITMENT TO IMPLEMENT THE RESULTS;S. 830 3
D. PERFORMANCE OF PROJECTS BY A THIRD PARTY UNLESS SUCH PARTY IS REQUIRED TO IMPLEMENT THE PROJECT SPECIFIED IN THE SETTLEMENT DOCUMENT; OR E. PUBLIC EDUCATION PROJECTS. 5. SETTLEMENTS WHICH CONTAIN A PROJECT SHALL CONTAIN: A. A PAYABLE PENALTY COMPONENT WHICH FULLY RECOVERS THE ECONOMIC BENE- FIT OF NONCOMPLIANCE TO THE RESPONDENT; B. A PAYABLE PORTION OF THE GRAVITY COMPONENT OF THE PENALTY; AND C. A WRITTEN STATEMENT SIGNED BY THE RESPONDENT WHICH CONFIRMS THAT THE RESPONDENT WILL NOT DEDUCT THE COST OF THE PROJECT FROM ITS TAXES. IF THE SETTLEMENT DOES NOT INCLUDE SUCH A STATEMENT, THE GRAVITY COMPO- NENT OF THE PENALTY MUST BE ADJUSTED TO REFLECT THE TAX BENEFIT. 6. ALL PROJECTS FACTORED INTO PENALTY CALCULATIONS SHALL BE PERFORMED PURSUANT TO LEGALLY ENFORCEABLE COMPLIANCE SCHEDULES WHICH: A. ACCURATELY AND COMPLETELY DESCRIBE THE PROJECT, DETAIL THE ACTIONS TO BE PERFORMED, AND PROVIDE RELIABLE AND OBJECTIVE MEANS TO VERIFY THAT THE COMPLIANCE SCHEDULED HAS BEEN ADHERED TO; B. HAVE ENFORCEABLE MILESTONE IMPLEMENTATION SCHEDULES; AND C. OBLIGE THE RESPONDENT TO SUBMIT PERIODIC REPORTS TO THE DEPARTMENT DESCRIBING COMPLIANCE WITH THE TERMS OF THE PROJECT. 7. ALL PROJECTS SHALL BE SUBJECT TO THE FOLLOWING NOTICE AND APPROVAL CONDITIONS: A. NOTICE OF THE PROPOSED SETTLEMENT OR ORDER, INCLUDING A DESCRIPTION OF THE PROJECT AND THE PAYABLE PENALTIES, SHALL BE PUBLISHED IN THE ENVIRONMENTAL NOTICE BULLETIN AND AT LEAST ONE NEWSPAPER IN GENERAL CIRCULATION IN THE AREA WHERE THE VIOLATIONS OCCURRED, AT LEAST FORTY-FIVE DAYS BEFORE THE SETTLEMENT OR ORDER IS EXECUTED; B. THE ATTORNEY GENERAL SHALL REVIEW AND APPROVE THE SETTLEMENT OR ADMINISTRATIVE ORDER; AND C. WHENEVER THE RESPONDENTS PUBLICIZE THE PROJECT OR PROJECT RESULTS, THE RESPONDENT SHALL ACKNOWLEDGE THAT THE PROJECT WAS PERFORMED AS PART OF THE RESOLUTION OF AN ENFORCEMENT ACTION BROUGHT BY THE DEPARTMENT. S 2. This act shall take effect immediately.