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DEE-2: Order on Consent Enforcement Policy

Commissioner Policy

The DEC Policy System
Department ID: DEE - 2
Program ID: N/A
Issuing Authority: Thomas C. Jorling, Commissioner
Originating Unit: Environmental Enforcement, Compliance Assurance Bureau
Signature: Thomas C. Jorling
Date: 28 August 1990
Issuance Date: 20 July 1984
Revised: 28 August 1990
Latest Review Date (Office Use):

Consistent with the Civil Penalty Policy; Order on Consent Enforcement policy; Record of Compliance; Natural Resource Damages and Small Business Self-Disclosure Policy:

  1. The policies and procedures set out in this document are intended solely for the use and guidance of DEC personnel. They are not intended to create any substantive or procedural rights, enforceable by any party in administrative and judicial litigation with the State of New York. DEC reserves the right to act at variance with these policies and procedures.
  2. Any penalty calculations undertaken hereunder by DEC in anticipation of litigation are exempt from disclosure under the Freedom of Information Law.
  3. Pursuant to §4547 of the Civil Practice Law and Rules of the State of New York, all evidence or conduct of negotiations or settlement are inadmissible as evidence as proof of liability for or invalidity of the claim which is disputed as to either validity or amount of damages.
  4. The penalty amounts calculated with the aid of this document in adjudicated cases must, on the average and consistent with consideration of fairness, be significantly higher than the penalty amounts which DEC accepts in consent orders which are entered into voluntarily by respondents.

I. Applicability

This Policy applies to all administrative settlements of DEC Enforcement actions. The threshold decision as to whether to proceed administratively, civilly, or criminally in an enforcement action should be made independently of this Policy and will be addressed in the Criminal Enforcement Policy currently being developed.

II. Authority for Consent Orders

Environmental Conservation Law (ECL) Article 71 and the State Administrative Procedure Act empower the Commissioner of Environmental Conservation to issue Orders on Consent (or "Consent Orders") in situations involving violations of statutes, regulations, permits, or other Consent Orders. In these orders the Commissioner is authorized to assess penalties, require corrective or remedial actions, and modify, suspend, or revoke permits. With certain exceptions, most notably Summary Abatement orders and emergency Orders (e.g. See ECL 71-1719 & 23-0305.3), Enforcement Orders can only be issued after DEC has provided the respondent with notice and the opportunity to be heard in an administrative proceeding, or the respondent has waived its right to a hearing.

III. Background(1)

Consent Orders are legally enforceable. In this respect Orders issued after administrative hearings and Consent Orders are quite similar to statutes and regulations in the sense that failure to obey an Order is punishable under the law. Also, Consent Orders are similar to stipulations or consent DEC issued by courts to resolve judicial litigation.

On the other hand, informal agreements and informal commitments made to DEC by a violator are more difficult to enforce. As an Example, an informal commitment to perform certain remedial work(2) may not be readily enforceable when the person making the commitment decides not to abide by it. In such a situation, the DEC may have to bring an enforcement proceeding to require the very work the party had committed to do, and the agency is required to prove the initial violation.

In contrast, if that commitment had been embodied in a Consent Order, the violation of that obligation would lead not only to a Consent Order that the remedial work be carried out but also to punitive sanctions for the violation of the Consent Order. This makes the Consent Order a vital enforcement tool. Under no circumstances should an enforcement proceeding be resolved by an informal agreement.

IV. Policy

Consent Orders are an effective way of resolving violations of law. They avoid time-consuming and resource-intensive administrative hearings.

The Department, however, will only issue a Consent Order when the Order will enable the Department to achieve its enforcement objectives. The Department is prepared to and will litigate either administratively or judicially if it cannot achieve its objectives through a Consent Order. The Department is prepared and will use the strong administrative authority found in ECL Article 71. (In addition, Consent Orders are prerequisite to Departmental oversight and approval of any ECL Article 27, Title 13 work performed by a responsible party).

Consent Orders are not permits and are not a means to bypass or otherwise circumvent the legal process and protections associated With the permit system. The Department's permit issuance mechanisms were created to ensure environmental impact review and opportunity for public involvement, among other things. Enforcement Consent Orders principally are aimed at gaining compliance, and deterring and punishing violators. Hence, because of the different purposes of these regulatory mechanisms it is inappropriate to issue Enforcement Consent Orders that allow either the commencement or expansion of an unpermitted activity or the long-term unabated continuation of an unpermitted activity. Rather, Consent Orders are designed to bridge noncomplying activities into compliance and must be limited in time and scope.

In some limited situations, Orders may be unnecessary. In general and unless a program specific Enforcement Guidance Memorandum provides otherwise, Orders will not always be required Where a minor violation of the ECL can be corrected within a short time following its detection. "Minor violations" shall be described in program-specific guidance. Generally, the term means violations which do not:

  1. warrant more than a de minimis penalty under Department penalty guidance,
  2. require remediation and
  3. compromise statutory objectives.

Nonetheless, Orders are required in the following situations:

  1. Where a minor violation cannot be corrected within a reasonable time period following its detection, and there is a compliance schedule that the violator must adhere to;
  2. Where there are multiple violations even if they are minor and can be corrected within a short period of time;
  3. Where there is a violation as to which it is appropriate for program or policy reasons to impose a penalty or obtain a financial surety;
  4. Where a violation related to on ongoing (long term) permitted activity, is committed by a party which has been subject to an administrative or judicial order in the past;
  5. Where a violation involves complex legal issues; or
  6. Where a violation is major (it involves a potential threat to the health or welfare of people, fish or wildlife; poses a likelihood of destruction or impairment of natural resources; impairs regulatory objectives; or is termed significant under an Enforcement Agreement with EPA).

Necessary Elements of Orders

The contents of Consent Orders will vary depending upon the regulatory program involved, other Enforcement Directives, and DEC/EPA enforcement protocols. Technical and legal staff involved in preparing Orders should consider whether each of the following elements is appropriate:

  1. Remedial Program - The Order should require the Respondent to remedy any environmental, natural resource, or public health damage resulting from the violations.
  2. Compliance Schedules - The Order should include a detailed compliance schedule that (1) provides monitorable milestone dates that correct all violations and leads to full regulatory compliance, by the soonest feasible date; and (2) requires the implementation of any other remedy, by dates certain.
  3. Interim Controls - The Order should require the use of effective and feasible controls to minimize any environmental threat or damage during the interval between the execution of the Order and the date of final compliance in the Compliance Schedule.
  4. Financial Obligations - The Order should require the provision of financial undertakings (such as bonds) in circumstances where additional security is advisable to ensure the complete cessation and remediation of the violations.
  5. Penalties - The Order should include penalties consistent with DEC policies and Enforcement Directives on the subject.
  6. Modification of Orders - The Order should require that no change or modification shall be effective except as may be specifically set forth in writing by the Department.
  7. Access for Site Inspection - The Order should require respondent to permit access to the site during reasonable hours. Orders shall state that no prior notification to the respondent of site inspections is required.
  8. Summary Abatement - orders should include a provision preserving the Commissioner's summary abatement power.
  9. Indemnification - Orders should require the respondent to indemnify and hold the State, DEC and its employees harmless for all claims, actions, damages and costs resulting from the negligence of the respondent in the fulfillment or attempted fulfillment of the previsions of the Order.
  10. Releases to the Press - Orders should not contain any restriction, limitation or agreement as to timing of the release of information concerning the Order or the Order itself after its execution.
  11. Reopener and Reservation of Rights - Orders should reserve to the Department the right to require that the respondent undertake Any additional measures required to protect human health or the environment and shall reserve the Department's rights to exercise its authorities under law to protect human health and the environment or to otherwise require compliance with the law.

V. Procedures

This Enforcement Directive establishes two sets of procedures for Consent Orders. One set of procedures addresses what are defined as "routine" Orders. Routine Orders are all orders not specifically defined as "non-routine or excepted" Orders. The second set of procedures governs "non-routine or excepted Orders."

Non-routine Orders on Consent include those which:

  1. Involve novel issues of policy, law or fact;
  2. Conflict, or threaten to conflict, with previously approved policy;
  3. Involve unusually sensitive policy, program, environmental, social or economic circumstances;
  4. Relate to hazardous waste;
  5. Cross regional boundaries;
  6. Involve significant compliance issues in multiple program areas; or
  7. Have been designated as non-routine Orders by the General Counsel or the Director of the Division of Environmental Enforcement.

A. Routine Orders

I am continuing the practice of delegating to Regional Directors the authority to execute routine Consent Orders. The procedure remains:

  1. Regional staff, acting through the Regional Attorney will, where appropriate and in accordance with policy, negotiate and draft Consent Orders.
  2. The respondent will sign a waiver and Consent Statement attached to the Order and return it to the Regional Attorney.
  3. In the case of routine Regional Orders on Consent, as described below, the Regional Attorney will recommend to the Regional Director that the Consent Order be executed by the Regional Director on behalf of the Commissioner.
  4. After execution of routine Consent Orders, the Regional Attorney will cause to have served on the respondent a conformed copy of the Order. Within thirty days the Regional Attorney will forward a conformed copy of the Order along with a copy of proof of service to the Director of the Division of Environmental Enforcement and confirmation that the matter has been entered into the environmental Enforcement Data System (EEDS).(3) The Regional Attorney shall maintain a secure file of all original copies of these Orders.
  5. In situations where Division of Environmental Enforcement staff and or Division of Law Enforcement staff handle routine Orders, these Orders should be presented to the Regional Director for recommended execution, except that, where the routine orders are the result of a Central Office enforcement initiative relying upon Central Office legal and technical staff, such orders may in the alternative be presented to the appropriate Deputy Commissioner or his/her designee for recommended execution.

B. Non-routine and Excepted Order

All non-routine Orders will continue to be forwarded to the Commissioner for execution with the following exceptions

  1. Consent Orders, Stipulations and Agreements entered into under authority of Article 27, Title 13 for investigative and/or remedial activities are to be executed by the Deputy Commissioner for the Office of Environmental Remediation. However, I will continue to execute such Orders, stipulations or agreements if they involve sites on the National Priorities List, or involve significant program or policy issues.
  2. Consent Orders, Stipulations and Agreements that will be executed by the Deputy Commissioner for the Office of Environmental Remediation must be approved by the Directors of Environmental Enforcement and Hazardous Waste Remediation. The Consent Orders, Stipulations and Agreements to be executed by the Commissioner must be approved by the above noted Division Directors, as well as the Deputy Commissioner for the Office of Environmental Remediation and the Deputy Commissioner / General Counsel.
  3. Consent Orders resolving non-compliance with "Community Right To Know," Executive Order 33 and Environmental Conservation Law 27-1307, are to be executed by the Deputy commissioner for the Office of Environmental Remediation after Review and approval by the Directors of Environmental Enforcement and Hazardous Waste Remediation. (Executive Order 33 requires an industrial chemical survey of past hazardous waste disposal practices.)
  4. Consent Orders for violations of the hazardous waste regulations not involving illegal acts of storage, treatment or disposal of Hazardous waste are to be executed by the Deputy Commissioner for environmental Quality, after review and approval by the Directors of Environmental Enforcement and Hazardous Substances Regulation. However, Consent Orders that encompass only NYCRR Part 372 "paperwork" violations that involve no illegal treatment, storage or disposal of hazardous waste, shall be executed by the regional Directors after approval by a Regional Attorney or Division of Environmental Enforcement Attorney.
  5. All executed non-routine and excepted Orders shall be returned to the Director of the Division of Environmental Enforcement who shall ensure that copies are promptly served, forwarded to the reviewing Division Director, the Executive Deputy Commissioner, the Assistant Commissioner for Public Affairs, the Regional Director and the Environmental Enforcement Data Unit.

VI. Legal and Technical Review

As the procedures set forth above establish, no Consent Order is to be sent to a respondent nor executed until it has been reviewed and approved, as to form and content, by at least one DEC attorney having enforcement responsibilities and the respective Regional or Division technical staff member.

No signature should appear on a Consent Order on behalf of DEC except that of the Commissioner, a Regional Director (in accordance with the standards outlined herein), or any other person specifically designated by the Commissioner. Memoranda explaining the Consent Order and recommending that it be executed, along with signatures of DEC personnel evidencing internal approvals, are to be set forth in separate documents and are confidential.

In order to efficiently carry out its enforcement responsibilities, DEC shall use short-form Consent Orders, including the Consent Order form developed for DLE use and any program-specific short-form orders. Each program Division Director shall work with the Division of Environmental Enforcement to develop specific guidance on the scope and limitations for the use of short-form Orders. Regional Directors will be responsible for signing such Orders on the Commissioner's behalf. the short-form Orders are appropriate where:

  1. remedial action is not required or has been satisfactorily completed already in accordance with program directives or where only minor compliance activity is required (e.g. obtaining a permit, removing small and benign amounts of illegally placed waste or fill) after approval of the Program Supervisor and Regional Attorney;
  2. the short-form Order has been endorsed as to form by the Regional Attorney and as to content by the appropriate program supervisors; and
  3. the penalty amount assessed is $10,000 or less.

All executed Consent Orders must be served by a mechanism that guarantees proof of service, such as certified mail, return receipt requested, or personal service followed by the preparation of an affidavit of service.

Albany, New York

August 28, 1990

Commissioner of Environmental Conservation

Thomas C. Jorling

1. Historical Note: On December 20, 1984, DEC Commissioner Williams issued Enforcement Policy Series Number 1, Orders on consent. That memorandum set forth the policy and procedure for Resolving violations by Orders on Consent. It was amended on October 29, 1986 and on February 8, 1989. This enforcement directive supersedes the December 20, 1984 Policy and the 1986 and 1989 amendments to the Policy.

2. The term "remedial work" in this context encompasses all necessary actions to be taken by a respondent to abate violations, such as cleaning up a particular environmental media, meeting certain emission limitations with control equipment, restoring affected land resources to their prior condition, or the outright cessation of certain activities.

3. Effective January 1, 1999, the Visual Inspection System for Tracking and Analysis (VISTA) superceded EEDS as the official repository for Order on Consent information.

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