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New York Environmental Leaders (NYEL) Guidance Document

Table of Contents

  1. Introduction
  2. Compliance Screening
    1. Conducting Standard Compliance Screen
    2. Compliance Screening Without Enough Existing Information
    3. Detecting Pattern of Neglect Regarding Compliance With Environmental Requirements
    4. Significant Violations
    5. Mitigating Factors
  3. Components of an Acceptable EMS
    1. Policy
    2. Planning
    3. Implementation and Operation
    4. Checking and Corrective Action
    5. Management Review
  4. Multi-Facility Option
  5. Environmental Performance Indicators and Categories

I. Introduction

This program guidance supplements Commissioner's Policy 40 : NY Environmental Leaders (CP-40). While CP-40 sets forth the general approach the Department will take in implementing NY Environmental Leaders (NYEL), this guidance will provide information that applicants can use when evaluating their own environmental management efforts in relation to what is required of NYEL members. Further, this guidance will provide the Department with more specific criteria to use when evaluating potential candidates for the program.

II. Compliance Screening

To qualify for participation in New York Environmental Leaders, applicants must demonstrate a commitment to compliance with environmental requirements as defined in CP-40. The following sections, A through E, outline the process for determining whether an applicant meets the compliance requirements of the program.

A. Conducting Standard Compliance Screen

Upon receipt of applications, the Pollution Prevention Unit will ask that the appropriate DEC Program/Regional Representatives conduct compliance screens for applicants in their region. The DEC Program/Regional Representatives shall do the following:

  1. Review the applicant's completed record of compliance form.
  2. Assess existing compliance data sources and document any violations that may prevent the applicant from being accepted to the applicable tier.
  3. Regional office staff shall check with regional programs to assess compliance with any existing environmental requirements, and any enforcement action being undertaken or contemplated.

The information gathered shall be transmitted to the Pollution Prevention Unit as soon as it is available.

B. Compliance Screening Without Enough Existing Information

If there is not enough existing information to assess the applicant's record of compliance, the Pollution Prevention Unit will request that the applicant allow the Department to conduct a multi-media compliance assessment. If the applicant agrees, then the DEC Regional Representative will take the lead in coordinating this effort. Violations discovered during this compliance assessment will be handled in accordance with the NYEL Enforcement Response Procedure in CP-40. If the applicant does not agree to this compliance assessment they will not be considered for entrance to NYEL.

C. Detecting Patterns of Neglect or Non-Cooperation Regarding Compliance with Environmental Requirements

To make this determination, the following will be considered:

  • scope and magnitude of the applicant's operations
  • trend over time in the instances of non-compliance and facility response
  • prior willfulness and/or negligence regarding compliance with environmental requirements
  • lack of good faith efforts to resolve issues

D. Significant Violations

CP-40 excludes applicants to the Leadership Tier if they have three or more significant violations within the past three years. Those violations that meet USEPA criteria for Significant Non-Compliance (SNC) and High Priority Violation (HPV) will be considered significant for this purpose, as will any violations that are significant to affected Department programs.

SNC and HPV are terms defined by the USEPA to describe compliance status related to violations of environmental requirements that are deemed the most serious and may pose a more severe level of environmental threat. Each EPA program uses its own program specific criteria to determine if a facility is currently in SNC or HPV status. The EPA documents that set forth the program specific criteria are referenced below.

  • Air Program HPV Definition - December 22, 1998 memo: Issuance of Policy on Timely and Appropriate Enforcement Response to High Priority Violations (see http://www.epa.gov/compliance/resources/policies/civil/caa/stationary/issue-ta-rpt.pdf)
  • Clean Water Act SNC Definition - December 12, 1996 EPA guidance document: A General Design for SNC Redefinition Enhancement in PCS
  • RCRA SNC Definition - December 2003 Hazardous Waste Civil Enforcement Response Policy (see www.epa.gov/compliance/resources/policies/civil/rcra/finalerp1203.pdf)

E. Mitigating Factors

In certain circumstances the Department may consider specific factors, other than simply the number of violations, for entrance to the State option of the Leadership Tier. Basic compliance requirements for State Leadership Tier entry currently allow for no more than two significant violations in the last three years. If there are more than this number, however, the Department may also consider the following factors as exceptions:

  • The number of violations is deemed reasonable considering the complexity of the organization's operations, and the number of opportunities for non-compliance
  • The overall trend in the applicant's record of compliance demonstrates improvement
  • The applicant has been cooperative in the resolution of violations
  • Violations that are part of the applicant's record of compliance have been corrected in a timely and appropriate manner
  • Violations were self-reported by the applicant
  • The applicant demonstrates that their EMS will prevent future violations

III. Components of an Acceptable EMS

CP-40 defines several options available to demonstrate the suitability of an organization's EMS. These include that the EMS:

  • is a third party certified ISO 14001 EMS, 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 that is acceptable to the Department.

For the purpose of evaluating a trade association EMS standard, or an EMS at an individual facility, the Department will look for the following elements.

A. Policy:

Establishment of a clearly documented written policy that communicates management commitment to the environment and includes commitments for:

  1. Maintaining compliance with Legal Requirements,
  2. Continuous improvement in environmental performance, including areas not subject to regulation,
  3. Pollution prevention and source reduction,
  4. Continuous reduction of environmental risks, and
  5. Adequate personnel and resources for the EMS.

B. Planning:

  1. Identification of the environmental aspects of the facility's products, activities, and services and the environmental requirements (as defined in CP-34 and CP-40) associated with each of them.
  2. Evaluation of the environmental aspects to determine those that could have a significant impact on the environment.
  3. Establishment of specific performance objectives and targets to: meet the facility's environmental policy, comply with Environmental Requirements, and reduce the facility's significant environmental impacts. In setting the objectives and targets, the facility focuses on:
    • preventing non-compliance
    • preventing pollution at its source
    • minimizing cross-media pollutant transfers
    • improving environmental performance (e.g., the provision of public health or environmental benefits that exceed any benefits that may be otherwise obtained through compliance with applicable Environmental Requirements)
  4. Development of programs to achieve the established objectives and targets. This includes identifying:
    • The means to achieve the established objectives and targets,
    • The time frame for meeting established objectives and targets, and modifying and updating these as Environmental Requirements change or modifications in operations occur,
    • Those who are responsible for seeing that the established objectives and targets are achieved.
  5. Development of a program for ongoing community education on the facilities' environmental management, consistent with facility capabilities and community interest.

C. Implementation and Operation:

  1. Establishment of a clear specification of organizational duties, roles, responsibilities, and authorities in implementing and maintaining the EMS. This shall include:
    • Organizational charts that identify staff having environmental performance and regulatory compliance responsibilities,
    • A description of how staff and management will be held accountable for achieving and maintaining compliance,
  2. Establishment of programs to:
    1. Communicate to both internal and external individuals and groups, including:
      • Communicating to employees, on-site service providers, and contractors about requirements pertaining to environmental performance and to Environmental Requirements compliance,
      • Communicating routine requirements for sampling, monitoring, and reporting data required by law, regulation, and permit,
      • Communicating practices for responding to changes in Environmental Requirements that could require modification of operating procedures,
      • Responding to concerns from the community and communicating to the community relevant EMS and environmental performance information,
    2. Ensure that all personnel have been trained and are capable of carrying out their responsibilities in ensuring compliance with Environmental Requirements and implementation of the EMS, including:
      • Identifying specific education and training required for personnel, as well as a process for documenting training,
      • Ensuring that facility employees are aware of the facility's environmental policies, procedures, and Environmental Requirements, and their roles and responsibilities within the EMS,
      • Ensuring that personnel responsible for meeting and maintaining compliance with Environmental Requirements are competent on the basis of appropriate education, training, and/or experience,
    3. Identify operations and activities where documented standard operating procedures are needed to prevent and control releases, ensure environmental protection, and maintain compliance with Environmental Requirements,
    4. Develop, approve, implement, and control the distribution of all EMS documents,
    5. Prepare, maintain, revise, and test an emergency response plan.

D. Checking and Corrective Action:

Establishment of programs to:

  1. Conduct a periodic audit of the organization's compliance with Environmental Requirements and immediately correct any identified violations. In addition, a root cause analysis assessing why the violation occurred shall be conducted and the resulting conclusions shall be used to improve the EMS
  2. Conduct a periodic audit of the organization's EMS. Instances of nonconformance shall be investigated in order to understand the root cause and the EMS shall be appropriately corrected.
  3. Evaluate attainment of performance objectives and targets that had been developed through the EMS planning process and correct any identified impediments to achieving these objectives and targets.

E. Management Review:

Development and implementation of a program to ensure that top management conducts an annual review of the facility's performance against established objectives and targets, the results of the Environmental Requirements and EMS audits, and the general performance in meeting the intent of the environmental policy.

IV. Multi-Facility Option

NYEL will have limited opportunities for multiple facilities within the same organization to participate in the State option of the Leadership Tier under a single NYEL agreement. Participating in NYEL in this manner will require prior approval from the Department. Those seeking to participate in this multi-facility arrangement will be required to demonstrate the following prior to submitting a multi-facility agreement:

  1. that the management structure at the organization is arranged in such a manner that a multi-facility agreement should be considered
  2. that there are significant benefits to the organization participating in NYEL under a multi-facility agreement, as opposed to agreements for each individual facility or service
  3. that each of the facilities covered under the multi-facility agreement operate under the same centrally managed EMS
  4. that there are enough similarities in the operation, and environmental management, approaches at the facilities to warrant a single agreement to cover all of the participating facilities.

If the Department determines that the organization satisfies the items in 1 through 4 above, then the organization can begin their multi-facility participation in a phased approach. The phasing will be conducted as follows:

  • In the 1st year of participation the organization can have up to three facilities covered by a single application.
  • The Department will conduct a site visit at each of the facilities covered under the NYEL multi-facility agreement during their first year of participation. If the Department is satisfied with the results of the site visits, up to three additional facilities may be allowed to participate under the multi-facility agreement in the second year.
  • The Department will conduct site visits at each of the facilities that become a part of the multi-facility agreement in the second year of participation.
  • Upon satisfactory participation in two consecutive years the Department will consider, on a case by case basis, allowing additional facilities to enter the multi-facility agreement. The Department will only consider additional facilities if the organization is committed to using its own resources to assure that the facilities covered by the multi-facility agreement are meeting their established commitments and continue to meet the requirements established for participation in NYEL. As deemed necessary, the Department will conduct site visits to verify the results of any assurances that are made by the organization, or any party working on their behalf.

The Department will also consider the development of NYEL agreements that can accommodate multiple service operations within organizations that are not facility based. This could include business units at organizations such as utilities, construction companies, and transit agencies, among others. If the Department determines that the organization satisfies the items in 1 through 4 above, then the organization will be allowed to begin their multi-facility participation in a phased approach. Specifics of the phasing for the incorporation of a business unit(s), or service line(s), into a single NYEL agreement will be consider on a case by case basis. When considering a NYEL agreement that covers multiple services, the Department will give consideration to the complexity, scope, geographic reach, management structure, and the commitment of the organization to invest its own resources in assuring compliance with the NYEL agreement and the requirements of the NYEL program.

V. Environmental Performance Indicators and Categories

CP-40 sets forth requirements for documentation of past achievements and future commitments. When selecting commitments and past achievements focused on measurable environmental Indicators they shall be beyond minimum compliance requirements and drawn from Indicators and categories that are acceptable to the Department. The Indicators must be selected from at least two categories. In selecting Indicators for commitments, applicants should consider the environmental aspects that the organization has determined to be significant in the course of implementing their EMS.

In certain situations, those applying to the State Option of the Leadership Tier will be allowed to commit to fewer improvements than established in CP-40, or to select their improvements from fewer categories, if the Department determines that the applicant's commitment(s) provides outstanding environmental benefit.

In addition, for each measurable commitment the applicant shall document a factor that they will use to normalize the Indicator to account for increases or decreases in production over time. In order to promote transparency, the normalization factor shall be sufficiently understandable to readers of the NYEL agreement. The facility will determine the appropriate level of improvement that they commit to achieve.

The following categories and Indicators are acceptable to the Department:

Stage: Upstream
Category Indicator1 Units2
Material Procurement Recycled content (Total or specific) Pounds, tons
Hazardous/toxic components (Total or specific) Pounds, tons
Suppliers' Environmental Performance Any relevant Indicators from the Inputs or Nonproduct Outputs stages As specified for the particular Indicator
Stage: Inputs
Category Indicator1 Units2
Material Use Materials used (Total or specific) Pounds, tons
Hazardous materials used (Total or specific) Pounds, tons
Ozone depleting substances used (Total specific) CFC-11 equivalent tons
CFC-11 equivalent pounds
Total packaging materials used Pounds, tons
Water Use Total water used Gallons
Energy Use Total (non-transportation) energy use by fuel type kWh/MWh or Btu/MMBtu
Transportation energy use (Total or specific) kWh/MWh, gallons, cubic feet
Land and Habitat Land and habitat conservation Square feet, acres
Community land revitalization Square feet, acres
Stage: Nonproduct Outputs
Category Indicator1 Units2
Air Emissions Total GHGs MTCO2E
VOCs (Total or specific) Pounds, tons
NOx Pounds, tons
SOx Pounds, tons
PM 2.5 Pounds, tons
PM10 Pounds, tons
CO Pounds, tons
Air toxics (Total or specific) Pounds, tons
Radiation Curies, Becquerels
Dust Pounds, tons
Discharges to Water COD Pounds, tons
BOD Pounds, tons
Toxics (Total or specific) Pounds, tons
Total suspended solids Pounds, tons
Nutrients (Total or specific) Pounds, tons of Total N or P
Sediments from runoff Pounds, tons
Pathogens (Total or specific) MPN/ml, CFU/ml
Waste3 Non-hazardous waste generation, broken down by management method
(Total or specific)
Pounds, tons
Hazardous waste generation, broken down by management method
(Total or specific)
Pounds, tons
Noise Noise dBA
Stage: Downstream
Category Indicator1 Units2
Products Expected lifetime energy use (Total or specific) kWh/MWh or Btu/MMBtu
Expected lifetime water use (Total or specific) Gallons
Expected lifetime waste (to air, water, land) from product use (Total or specific) Pounds, tons
Waste to air, water, land from disposal or recovery
(Total or specific)
Pounds, tons

1 A member or applicant of the State - Small Facility option that decides to focus both of its commitments on measurable Indicators must also select these Indicators from at least two categories.

2 Upon justification by the applicant, the Department may accept units of measurement that are not included in this table.

3 The Department will only consider those hazardous waste reduction projects that meet one of the following:

  1. the facility generates less than 25 tons per year of hazardous waste and is not a treatment, storage, or disposal facility (TSDF),
  2. the facility generates greater than 25 tons per year of hazardous waste and is not a TSDF and commit to reduce hazardous waste generation below 25 TPY (only the portion of waste reduction below 25TPY would be considered beyond compliance),
  3. the commitment exceeds the facility's normal return on investment (ROI) for capital projects,
  4. the hazardous waste reduction is not otherwise required under ECL 27-0908,
  5. demonstrates extraordinary leadership in the organization's sector, such as conducting research that leads to innovative waste reduction technologies that the organization both implements and actively provides to other organizations to utilize..

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