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CP-40 Commissioner Policy on New York Environmental Leaders (NYEL)

New York State Department of Environmental Conservation
DEC Policy
Issuing Authority: Commissioner Denise M. Sheehan
Date Issued: 12/26/06

I. Summary:

This policy sets forth the details of the New York Environmental Leaders (NYEL) program. This includes program requirements, benefits to participating organizations and the responsibilities of the New York State Department of Environmental Conservation (Department) in implementing this program.

The implementation of NYEL is authorized by Commissioner's Policy 34 (CP-34): Using EMSs and Other Environmental Performance Improvement Tools in Department Programs, which was issued on April 5, 2004. The NYEL policy takes the framework embodied in CP-34 and specifies the additional details necessary to implement such a program.

This policy seeks to recognize and provide incentives to organizations that demonstrate superior environmental performance.

II. Policy:

A. Statement of Policy

The Department is implementing NYEL to provide recognition and incentives for those organizations that can demonstrate the use of pollution prevention practices, beyond compliance performance, or sustainable business practices as a result of their participation in NYEL. Further, NYEL focuses on enabling those organizations that are committed to making improvements in their environmental performance. NYEL provides organizations incentives to sustain their existing high levels of performance, and to motivate and enable organizations that are committed to reaching higher levels of performance.

NYEL gives consideration to the differing levels of environmental performance that exist in the regulated community by including more than one membership tier. The policy establishes two tiers. One is a leadership tier that will be open to organizations that have mature environmental management systems and an existing record of environmental leadership. The second is an entry tier for organizations that are just beginning their efforts to improve their environmental performance. Incentives and recognition will vary based on the tier in which an organization participates.

In addition, NYEL acknowledges that measurable improvements in environmental performance become increasingly demanding as an organization advances in its environmental leadership. Organizations that have been operating at high levels for some time have likely already implemented many projects that result in significant improvements. They must find more creative improvements that create value and effective partnerships. Considering this, NYEL provides participants in the highest tier with greater flexibility in deciding what they will commit to accomplish during their participation in the program. Further, it shall be the Department's policy to act in a manner that indicates stronger relationships with the organizations that participate in NYEL.

Granting incentives to high performing organizations complements the Department's traditional approach of sanctioning those that fail to meet minimum compliance levels. The traditional approach used alone is typically unable to provide sufficient means to motivate performance beyond minimum compliance levels or to motivate improvements in areas that are not regulated. The NYEL program will create incentives to help the regulated community recognize the value in performance beyond minimum compliance levels and to set forth differential treatment for organizations that can demonstrate high levels of performance.

B. Applicability

This policy is applicable to the Department, NYEL applicants, and NYEL members. Membership in NYEL is limited to applicants that the Department determines meet, and maintain, the membership requirements specified in this policy. Decisions to accept organizations into NYEL is at the discretion of the Department and not subject to appeals by the applicant.

This document does not create any rights, duties, obligations, or defenses, implied or otherwise, in any third parties. To the extent that this Policy may differ from the terms of the applicable enforcement response policies (including penalty policies) under media-specific programs, this document supercedes those policies. This policy does not limit, or seek to limit, Department staff from establishing the regulations and permit conditions, and from conducting compliance inspections, that staff believe are necessary to protect human health and the environment.

C. Definitions

The following definitions apply to this document:

Beyond Compliance Performance - "Beyond compliance performance" is performance that either exceeds regulatory minimums or is focused on improvement in areas that have environmental impact that are not currently regulated.

Compliance and Technical Assistance Visits - "Compliance and technical assistance visits" are those visits where the regulated entity agrees to allow the Department access to their facility for the purpose of helping them improve compliance with environmental requirements and/or general environmental performance.

Compliance Screen - A "compliance screen" is the Department's assessment of an applicant's or a renewing member's commitment to compliance. To conduct this compliance screen the Department will assess existing sources of compliance data and relevant information that is submitted by applicants. In the event that the Department does not have enough data to assess the applicant's record of compliance, or has questions regarding the applicant's record, an on-site assessment may be conducted to better determine the applicant's record of compliance.

DEC Program/Regional Representative - A "DEC Program/Regional Representative" shall be a staff person appointed by each regional office, environmental quality division, and the DEE to work closely with the Pollution Prevention Unit in the implementation of NYEL.

Environmental Management System (EMS) - An "environmental management system," or "EMS," is a set of management processes, procedures, and auditable performance objectives that allows a facility to continuously analyze, control, and reduce the environmental impact of its activities, products, and services by utilizing pollution prevention measures, performing beyond minimum compliance levels, or integrating sustainable business practices. The EMS shall be implemented in a manner that ensures full compliance with environmental requirements.

Environmental Requirements - "Environmental requirements" are federal, regional, state and local environmental statutory and regulatory requirements and the requirements of any permits, licenses, or administrative orders that were issued pursuant to those laws and regulations to which the facility is subject.

NYEL Agreement - "NYEL agreement" is the document that outlines what a member in NYEL is committing to accomplish during their participation in the program. The NYEL agreement will be endorsed by a senior manager of the member organization, will be approved by the Department (per section IV. A of this policy), and made available to the public.

NYEL Coordinator - The "NYEL coordinator" within the Department shall serve as the Department's overall representative for the NYEL program.

NYEL Point of Contact - A "NYEL Point of Contact " shall be a Department staff person made available to members of the leadership tier. The NYEL Point of Contact will serve as a convenient point of communication between leadership tier members and the Department on matters relating to the implementation of NYEL.

NYEL Site Visits - "NYEL site visits" are those visits when the Department is at a facility to assess whether a member is meeting the requirements of NYEL.

Pollution Prevention - "Pollution prevention" includes practices that reduce or eliminate the creation of pollutants. This includes source reduction practices which reduce the amount of any hazardous substance, pollutant, or contaminant entering any waste stream or otherwise released into the environment (including fugitive emissions) prior to recycling, treatment, or disposal; and reduce the hazards to public health and the environment associated with the release of such substances, pollutants, or contaminants. Pollution Prevention also includes other practices that reduce or eliminate the creation of pollutants through increased efficiency in the use of raw materials, energy, water, or other resources; or protection of natural resources by conservation.

Public Outreach - "Public outreach" includes efforts to effectively communicate, share information with, and gather feedback from the community that directly surrounds, or is directly impacted by, the organization's operation.

Routine Inspections - "Routine inspections" are those inspections that the Department normally conducts to assess compliance with environmental requirements.

Small Facility - "Small facility" is any facility that is independently owned and operated, not dominant in its field, and employs 100 or fewer individuals (across all facilities and operations owned by the entity).

Sustainable Business Practices - "Sustainable business practices" are those practices which strive toward resource use that does not exceed the rate of replenishment, and waste generation at a pace that does not exceed the rate at which it can be reabsorbed by the environment. Sustainable organizations are focused on implementing business practices that provide customers with goods and services for living a satisfying life, while maintaining both a healthy balance sheet and a healthy balance with the natural world.

Senior Manager - A "senior manager" is an individual from the NYEL member facility who submits and certifies the NYEL agreement and annual reports required under that agreement. This individual shall have sufficient control over the operation of the facility covered by the NYEL agreement in order to ensure that a sufficient amount of training and resources are available to implement the commitments embodied in the NYEL agreement, ensure that the facility continues to meet the membership requirements of NYEL, and that the facility's employees are aware of the member's participation in NYEL and its obligations identified in the NYEL agreement.

III. Purpose and Background:

This policy seeks to expand the implementation of pollution prevention, beyond compliance performance, and sustainable business practices as a result of participation in NYEL. NYEL will complement current regulatory approaches by motivating and sustaining beyond compliance performance. NYEL is consistent with the intent of Article 28 of the New York State Environmental Conservation Law which grants the Department the authority to promote pollution prevention and encourage the adoption of EMSs.

The implementation of NYEL is authorized by Commissioner's Policy 34 (CP-34): Using EMSs and Other Environmental Performance Improvement Tools in Department Programs, which was issued on April 5, 2004. The NYEL policy takes the framework embodied in CP-34 and specifies the additional details necessary to implement such a program.

Upon issuance of CP-34, the Department gathered input on the design of NYEL. In October of 2004 the Department held stakeholder meetings across the State to gather input from a variety of interests. In addition, a survey of stakeholders was also conducted to allow interested parties the opportunity to provide input on this program. This policy reflects the input gathered during these stakeholder outreach efforts. Finally, an inter-program workgroup within the Department provided guidance on the program design.

Lastly, the United States Environmental Protection Agency (USEPA) and several states have implemented programs that are focused on providing incentives and better working relationships with organizations that are determined to be leading environmental performers. The USEPA's National Environmental Performance Track has been in place since 2000 and several states have developed complementary state level programs.

IV. Responsibility:

The Department's Pollution Prevention Unit shall be responsible for the overall implementation of this policy. The Pollution Prevention Unit will be responsible for periodically reviewing the effectiveness of this policy and initiating changes as needed. The Department's regional offices, environmental quality divisions, natural resource divisions and Division of Environmental Enforcement (DEE) will fully cooperate with the Pollution Prevention Unit in the implementation of this policy. Each regional office, environmental quality division, and the DEE shall be responsible for appointing a DEC Program/Regional Representative to work closely with the Pollution Prevention Unit on all NYEL members. In addition, the Division of Environmental Permits shall appoint a single NYEL Point of Contact to serve as a point of communication for all NYEL members. Further, the Department's Director of Environmental Permits or his/her designee shall serve in the capacity of NYEL Coordinator. Specific areas of responsibility are further outlined below.

A. Program Decision Making

The Pollution Prevention Unit will notify the DEC Program/Regional Representatives in the regional offices, environmental quality divisions, and DEE of any relevant applications for NYEL membership. The DEC Program/Regional Representatives, and any other Department programs that the Pollution Prevention Unit deems necessary , will be responsible for conducting a compliance screen. Those involved in the application decision making will jointly review compliance information and application material. If staff involved in the application review are in agreement as to whether the applicant should be accepted, this position will be regarded as the staff recommendation for the application. The applicants recommended for acceptance shall be approved by the Director of Environmental Permits. If any of the offices reviewing the application are not in agreement on a particular applicant, the Director of Environmental Permits, appropriate Regional Director, and appropriate Division Directors will attempt to resolve the matter. If the Director of Environmental Permits, Regional Director and appropriate Division Directors are not able to unanimously agree, the Executive Deputy Commissioner will be asked to rule on the matter. Acceptance into NYEL is at the discretion of the Department.

B. Incentives

1. An initial list of incentives for NYEL members is included in section V.B.3 of this policy. In addition, the Department's Division Directors are responsible for:

  • considering the incorporation of incentives for NYEL in all future rules and regulations that their programs develop. Department staff involved in the development of rules and regulations shall look for opportunities to both reduce the regulatory burden of leading environmental performers to the extent not limited by statute and to deploy the Department's resources in the most efficient manner possible. In the Rulemaking Initiation Memorandum (RIM), the lead program for the rule making must include in the discussion whether there are any incentives that can be incorporated, or identify any limitations on providing incentives because of the specific nature of the rule making. If there are incentives that can be incorporated, Pollution Prevention Unit staff shall be consulted in these efforts.
  • adopting federal rules, or parts thereof, that provide incentives to National Environmental Performance Track (NEPT) members, consistent with Department program goals. When adopting these rules, the appropriate Department program should implement them such that incentives will only be available to facilities that are participating in both NEPT and the Leadership Tier of NYEL. The appropriate Department program shall be the lead in these efforts, with the Pollution Prevention Unit providing support as needed.
  • considering ways that their programs can market the benefits of participating in the program, recruit applicants, provide recognition to members, and promote EMSs.

C. Enforcement Response Procedure - DEE and those DEC programs that currently take enforcement actions will be the lead in implementing this portion of the policy. In the event the enforcement response taken per this policy requires a member to assess and improve its EMS, the Department's Pollution Prevention Unit will provide technical support for these efforts, as requested by the lead affected programs and the Division of Environmental Enforcement.

The NYEL Coordinator shall be responsible for advising staff involved in the enforcement process as outlined in section V.C of this policy. Further, the NYEL Coordinator will be responsible for making executive staff aware of any issues that arise during the course of implementing the Enforcement Response Procedure.

D. NYEL Site Visits - The Pollution Prevention Unit will be responsible for leading these site visits. Department programs that regulate the member being visited will be invited and are encouraged to participate.

E. Applicant Compliance Screens - The DEC Program/Regional Representative in each environmental quality division, regional office, and the DEE will be responsible for conducting a compliance screen for each applicant. The Pollution Prevention Unit will be responsible for providing additional guidance, as needed, on this matter.

F. Annual Reports - Annual reports will be submitted from NYEL members to the Pollution Prevention Unit. The Pollution Prevention Unit will be responsible for reviewing the annual reports, consulting with Department programs if necessary, and resolving any issues with the member.

G. Training - The Pollution Prevention Unit shall be responsible for providing opportunities for Department staff to receive training in EMSs and other concepts that are relevant to this policy. The Department's Division and Regional Directors shall be responsible for ensuring that appropriate staff participate in these training opportunities.

V. Procedure:

This section discusses the requirements for NYEL applicants to enter the program, and for NYEL members to remain in the program. It also presents procedures that the Department will follow regarding NYEL applicants and members.

In order to be considered for membership in NYEL, an applicant must complete a proposed NYEL agreement. A generic agreement form will be developed by the Department and completed by the applicant. The proposed NYEL agreement will contain provisions that enable the Department to verify whether the applicant meets the membership requirements. Specifically, the proposed agreement will:

  • set forth what the applicant is committing to accomplish during its participation in the program.
  • include a completed record of compliance form that demonstrates a commitment to compliance with all environmental requirements.
  • entry tier applicants must demonstrate a commitment to implement an EMS and a schedule to do so; leadership tier applicants must verify that an EMS is in place that satisfies the criteria below.
  • document a history of performance improvement, if the applicant seeks to enter the leadership tier.
  • present a public outreach program.
  • be endorsed by a senior manager of the organization submitting the application.

The NYEL agreement contents are more fully described below. The Department will review proposed NYEL agreements to ensure that the applicant meets the requirements in section V.A of this policy. Upon acceptance, the NYEL member will be covered by the items presented in sections V.B and V.C of this policy. Sections V.B and V.C also guide the Department's actions as they relate to NYEL members.

A. NYEL Applicants

This section outlines the Department's expectations for applicants that seek acceptance into NYEL. There are six key considerations to be included in an application and each are listed below with some explanation of how these considerations are evaluated by the Department. Ultimately, future commitments identified by an organization in the NYEL application become formalized in a NYEL agreement if the applicant is accepted into the program.

1. Requested Tier of Membership - NYEL has two membership tiers. Tiers are based on the level of demonstrated commitment to performance that goes beyond compliance.

Entry Tier - The entry tier is an "on-ramp" to the leadership tier and successful implementation of the NYEL agreement for the entry tier will enable members to advance to the leadership tier. A NYEL agreement for the entry tier may cover only one facility.

Leadership Tier - The leadership tier has two entry options: the State/National Option and the State Option.

State/National Option - This option is aligned with the USEPA's National Environmental Performance Track (NEPT) and requires acceptance by both the Department and USEPA. A NYEL agreement for this option may cover only one facility.

State Option - This option is available to those applicants that are not interested in participating in the NEPT and only requires Department acceptance. NYEL agreements may cover more than one facility in certain circumstances.

2. Commitment to Compliance - The Department will review the submitted record of compliance form and other sources of compliance information to assess an applicant's commitment to compliance in terms of readiness, willingness, ability, qualification, suitability, and fitness. If the Department determines that there is insufficient information to evaluate the facility or facilities covered by the proposed NYEL agreement the Department will request that the applicant submit to a multi-media compliance assessment of the facility or facilities. Considering the willingness of the applicant to voluntarily submit to scrutiny of its operation, the Department will respond to any discovered violations as outlined in the Enforcement Response section (see section V.C) of this policy.

The Department may exclude an applicant for membership in a particular tier based upon a compliance track record demonstrating that it is unqualified, unsuitable, or unfit to participate in NYEL. The following will disqualify an applicant from participation in NYEL:

Entry Tier Exclusions

The applicant, within the five year period before the date of its application:

  • has been denied a permit for the same or substantially similar activity or activities being conducted at the facility or facilities covered by the proposed NYEL agreement
  • has been found in an administrative order or hearing, or a civil proceeding to have committed a negligent or intentionally tortious act, or has been convicted in a criminal proceeding of a criminal act involving violation of an environmental requirement or any similar statute, regulation, order or permit condition of the federal, or other state, government
  • has been convicted of a criminal offense under the laws of any state, or of the United States, which involves a violent felony offense or fraud, bribery, perjury, theft, or an offense against public administration as that term is used in Penal Law Article 195
  • has, in any matter within the Department's jurisdiction, knowingly falsified or concealed a material fact, knowingly submitted a false statement, or made use of or made a false statement on or in connection with any document or application submitted to the Department

The applicant, at the time of application:

  • is the subject of an ongoing criminal investigation
  • has an unresolved or unaddressed Significant Non-Compliance or High Priority Violation at the facility, or any violations that are significant to affected Department programs
  • is the subject of planned but not yet filed judicial or administrative action on the facility
  • is not in compliance with the schedule and terms of an administrative or judicial order or decree
  • is the subject of pending State or EPA initiated litigation at the facility
  • has demonstrated a pattern of neglect or non-cooperation regarding compliance with environmental laws and regulations

Leadership Tier Exclusions (in addition to the compliance exclusions in the entry tier)

The applicant, within the three year period before the date of its application:

  • has had three or more significant violations at the facility. For applicants to the State option of the Leadership Tier, the Department may consider factors other than simply the number of violations.

3. Environmental Management System (EMS) - in order to be considered for the leadership tier of NYEL an applicant must have a functional EMS in place. Having an EMS in place demonstrates to the Department that an applicant is committed to a sustained, systemic approach to their environmental management. Since resources that applicants have available to verify their EMS may be limited, NYEL provides a number of options that an applicant can use to demonstrate the suitability of their EMS.

Entry Tier - If an applicant does not have a functional EMS that meets the requirements of the leadership tier, they must include in their NYEL agreement a:

  • commitment to implement an EMS, and
  • a schedule to implement an EMS, within three years, that is appropriate for entrance into the leadership tier.

Leadership Tier - must have an EMS in place that covers the entire facility or facilities and that meets one of the following:

  • third party certified to the ISO 14001 standard, or
  • satisfies the requirements of the NEPT and has been independently audited, or
  • satisfies a standard adopted by a trade association or other group that the DEC determines to be satisfactory, or
  • has been deemed satisfactory after on-site assessment by DEC staff or a NYEL peer acceptable to the Department

4. History of Performance Improvements - Each of the past achievements specified below must entail beyond compliance performance and must be selected from one of the performance categories acceptable to the Department.

Entry Tier - No requirement

Leadership Tier - Document at least two projects that the organization has implemented, in the past two years, to produce measurable improvements that go beyond compliance with environmental requirements. A small facility can choose to document only one improvement.

5. Performance Commitments - Each applicant must include future commitments to improved environmental performance in their NYEL agreement. The following will guide the development of commitments:

Entry Tier - Commitments will vary from applicant to applicant and shall be focused on enabling the applicant to meet all of the leadership tier entrance requirements. An applicant must commit in its NYEL agreement to assess its performance, identify the gaps that prevent them from entering the leadership tier and commit to improvements in these areas.

Leadership Tier - All applicants must commit to future improvements beyond compliance requirements as noted in the table below.

NYEL Leadership Tier Commitments
Option Number of Commitments1
State/National 4
State 42
State/National - Small Facility 2
State - Small Facility 22

1The Department will develop an environmental performance table that defines the acceptable indicators and categories that applicants will be allowed to select from when developing measurable commitments. For each measurable commitment, the applicant shall document the baseline level of the indicator and the level they are committing to achieve within three years.

2The state option allows alternate commitments, that are not included in the environmental performance table. For normal participation in the state option a facility will be allowed to develop up to two alternate commitments. For small facility participation a facility will be allowed to develop up to one alternate commitment. These commitments can include: a project in an area that is not on the Department's listing of acceptable indicators and categories that is approved by the Department and provides significant environmental benefit or is sufficient to demonstrate the applicant's standing as an environmental leader, OR one of the following 1) mentoring an organization in a lower tier of NYEL; 2) provide EMS assessment or assistance services to organizations in a lower tier of NYEL; 3) provide technical assistance to organizations in a lower tier of NYEL; or 4) other Department approved effort to support NYEL.

6. Public Outreach - In the NYEL agreement all applicants must commit to make their NYEL annual report (discussed further in section V.B.1 of this policy) available to the public. In addition, the following will guide applicants on the requirements for a public outreach program:

Entry Tier - If the applicant does not have an existing public outreach program that meets the requirements of the leadership tier, they must commit to implement such a program. Small facilities may be exempted from these requirements.

Leadership Tier - At a minimum, this public outreach program shall provide timely information on the applicant's environmental performance to the public, and provide a mechanism for the public to provide feedback to the applicant. Small facilities may be exempted from these requirements.

B. NYEL Members

The following outlines the requirements for maintaining membership in NYEL and the actions that the Department will take in consideration of the member's standing in NYEL.

1. Annual Reporting - All members of NYEL are required to submit an annual report. The annual report will include the following:

Entry Tier

  • Progress in reaching commitments established in the member's NYEL agreement.
  • Violations discovered in the last year that are being covered by the Enforcement Response section (see section V.C.1) of this policy, and corresponding corrective actions that are being taken.
  • Discussion of any other issues that may hinder eventual entrance to the leadership tier.
  • A certification from a senior manager that the organization continues to meet the requirements for NYEL membership.

Leadership Tier

  • Progress in reaching commitments established in the member's NYEL agreement.
  • Violations in the last year that were discovered by the Department or discovered by the member and disclosed to the Department, and corresponding corrective actions that are being taken.
  • Summary of internal compliance audit(s) conducted including any discovered violations which have yet to be fully resolved.
  • Summary of EMS audit(s) conducted including any findings and corrective actions taken.
  • Summary of public outreach activities.
  • A certification from a senior manager that the organization continues to meet the requirements for NYEL membership.

2. NYEL Site Visits - Site visits will be conducted to assess the member's EMS, assess progress in performance commitments, and assess the implementation of the member's public outreach program. In addition, the visits will be an opportunity for the Department to provide feedback to add value to the member's operation, and to gather feedback from the member on possible improvements to NYEL. These site visits are beyond any normal regulatory inspections conducted by the Department. The frequency of the site visits will be as follows:

Entry Tier - as requested by member

Leadership Tier - at least one visit during the member's three year participation period.

The site visit findings will focus on identifying any improvement needed for the member to meet the requirements of NYEL. In addition, the findings may identify where the member is doing an exceptional job. When areas where the member is not meeting NYEL requirements are identified, the member will be requested to identify how the noted deficiencies will be corrected. If the deficiencies can not be resolved to the Department's satisfaction, the member may be removed from the program.

The focus of a site visit will not be to assess regulatory compliance. However, Department staff are obligated to ensure that any observed violation(s) of environmental regulations or laws are addressed in an appropriate manner.

3. Incentives - The Department shall remain focused on the development of incentives through the life of NYEL. This shall include considering ways that incentives can be implemented through legislation, regulation, policy and guidance. In addition, the Department shall continue to consider ways to provide more valuable recognition, and to build better relationships with NYEL members. Further, the Department shall gather input from NYEL members and key interest groups on the development of incentives. In addition to any incentives that are incorporated into legislation, regulation, policy, or guidance, the following shall be available to NYEL members:

The following incentives are available to members in all tiers

  • Recognition - All members shall be recognized on the Department's website and through other means, as determined by the Department.
  • Assistance - Members of NYEL shall be a priority for relevant assistance provided by the Department. In particular, members of the entry tier should be given the highest priority for Department assistance. Further, the Department shall work with members to see that they are aware of assistance available through state agencies, corporations, authorities, or other organizations.

The following incentives are available only to members of the Leadership Tier

  • Recognition - Upon initial acceptance or renewal in the NYEL leadership tier the member shall be invited to a Department sponsored recognition event. Further, when requested by the member, the Department will participate in one member sponsored, or organized, recognition event per three year participation period.
  • Use of NYEL Logo - Active members will be able to use the NYEL logo in order to promote their participation in this program.
  • Exclusive Category in the Department's Environmental Excellence Awards - The Department shall offer an award category in the Environmental Excellence Awards program that will only be available to NYEL leadership tier members.
  • NYEL Point of Contact - The Department will make a point of contact available to NYEL members. This point of contact will assist members in dealing with any issues that they encounter when dealing with the Department.
  • Coordinate Schedule and Scope of Routine Inspections - The Department will schedule routine regulatory inspections in a manner that gives consideration to the superior environmental performance commitments these members are making, in addition to the compliance history and the environmental impact and sensitivity of the facility operations. The outcome of this process shall still allow the Department the ability to conduct inspections necessitated by situations that require immediate action. The Department's programs that inspect NYEL members are responsible for this coordination.

4. Duration of Participation and Renewals

Entry Tier - Membership in the entry tier cannot exceed five years. However, as soon as a member in the entry tier meets the entrance requirements of the leadership tier they will be eligible to apply to the leadership tier. After five years of participation in the entry tier a member will not be allowed to renew their membership in the entry tier. To remain in NYEL, one must apply for entrance, and be approved for entry, into the leadership tier.

Leadership Tier - Members in the leadership tier will participate in this tier for three years. Upon the conclusion of a three year participation period the member will be allowed to renew their membership. A member renewing membership must demonstrate that they continue to meet the program entrance requirements. This includes documenting measurable improvements in their commitments from the previous membership period and continuing to demonstrate a commitment to beyond compliance performance.

5. Membership Termination

Members will be allowed to remain in the program (subject to the duration and renewal limitations set forth in Section V.B.4) as long as they continue to meet the requirements of the program. Identified violations, deficiencies with the member's EMS, lack of progress in performance commitments, false information submitted in the application or annual report, and/or other deficiencies may impact the member's ability to remain in the program. In the event that the identified deficiencies are able to be corrected, the member will be requested to submit a proposal to the Department that outlines how the identified deficiencies will be corrected. If the deficiencies cannot be resolved to the Department's satisfaction, the member will be asked to voluntarily withdraw from the program or otherwise be removed by the Department.

C. NYEL Enforcement Response Procedure

The goals of NYEL are to motivate the adoption of EMS, beyond compliance performance, pollution prevention, and sustainable business practices. The enforcement approach outlined herein will help support these goals. This approach focuses on correcting identified violations in an expeditious manner, with optimal use of resources by both the Department and the regulated organization.

The enforcement procedure helps enable applicants and new members of NYEL to assess and improve their environmental performance in partnership with the Department, without unduly increasing their exposure to enforcement liabilities. One of the goals of this procedure is to allow the EMS cycle of management that promotes the detection, disclosure, and correction of violations to work and be sustained over time. Another goal of this procedure is to ensure that the greater transparency and scrutiny to which NYEL applicants and members are subject does not inevitably lead to increased targeting for enforcement, and inhibiting program participation as a result. Additionally, this procedure will strive for greater certainty and consistency in how the Department applies enforcement to NYEL members and applicants.

1. Response for NYEL Applicants and Entry Tier Members - In view of the above, if:

  • the Department discovers a violation at the facility or facilities covered by a proposed NYEL Agreement during EMS audits or compliance assessments being conducted specifically to assess potential to enter NYEL, or
  • the Department or a member discovers a violation at an entry tier member facility, and the following steps are taken by the applicant or member:
    • takes immediate action toward correcting the violation,
    • takes immediate action to assess EMS flaws and correct the EMS, if applicable, to prevent the recurrence of the violation and the need for corrective action,
    • reports the violation to the Department if it was discovered by the member, and
    • reports on its progress in correcting the violation. For NYEL members, reporting on progress in correcting the violation, and any problems with its EMS shall be presented in the member's NYEL Annual Report. For applicants, reporting on progress in correcting the violation, and any problems with its EMS shall be conducted in a manner acceptable to the Department.

Then, consistent with the Department's Civil Penalty Policy, where applicable, the Department can eliminate or mitigate the payable portion of the assessed penalty at least to a level lower than that which would otherwise apply had the violation been committed, under similar circumstances, by a party that is not an applicant or entry tier member of NYEL.

2. Communication with NYEL Coordinator - For all violations involving applicants or members of NYEL, the lead attorney or program involved in the enforcement matter shall communicate with the NYEL Coordinator prior to resolution of the enforcement matter.

VI. Related References:

CP-34 Using EMS and Other Environmental Performance Improvement Tools in Department Programs

DEC Civil Penalty Policy

ISO 14001 - Environmental Management Systems - Requirements with Guidance for Use

USEPA's National Environmental Performance Track (www.epa.gov/performancetrack/)

NYEL Guidance

New York Environmental Conservation Law - Article 28 - Pollution Prevention


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