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DEE-16: Record of Compliance Enforcement Policy

Commissioner Policy

The DEC Policy System
Department ID: DEE - 16
Program ID: N/A
Issuing Authority: Thomas C. Jorling, Commissioner
Originating Unit: Environmental Enforcement, Compliance Assurance Bureau
Signature: Thomas C. Jorling
Date: 05 March 1993
Issuance Date: 08 August 1991
Revised: 05 March 1993
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. Policy

This Record of Compliance Enforcement Guidance Memorandum (ROC) establishes the policy and procedures by which the Department of Environmental Conservation (the "Department) is to ensure that persons who are unsuitable to carry out responsibilities under Department permits, certificates, licenses or grants, are not authorized to do so. Compliance with the Environmental Conservation Law (ECL) and enforcement against those who violate the ECL can be advanced by ensuring that the permit review procedures incorporate such consideration at the earliest possible stage in the review process. The memorandum does not establish a strict code of procedures or standards. Rather, the procedures and guidelines for review must be applied on a case by case basis to determine the appropriate Department position in response to the submission of permit applications. ROC forms already being utilized in various programs such as hazardous waste or medical waste transporter programs or solid waste program should be continued to be used. Nothing in this memorandum should be construed to restrict such programs already in effect.

II. Factual Background

On several occasions issues have arisen regarding whether the Department should issue permits, certificates, licenses or grants (hereinafter "permits") to persons who have acted in violation of the laws of New York State. Uniform guidance on the use of compliance histories pursuant to which permits are denied, suspended, conditioned or revoked is critical to attaining the objective of environmental protection. Under current law, Persistent or significant violators of the Environmental Conservation Law should not have permits renewed or be allowed to obtain new permits after committing breaches of law directly relating to their ability to carry out the authorized activities in a lawful and environmentally responsible manner. If a permit is issued to a prior violator, it may be appropriate to impose strict reporting or monitoring conditions within such permits or to require an environmental monitor. The Department also recognizes that a prior violator can demonstrate that rehabilitation has occurred such that, with or without more stringent oversight, as the specific circumstances warrant, the entity can carry out activities in a responsible manner. There is, thus, a need for guidelines for case by case application of the principles embodied in the Environmental Conservation Law and its enforcement statewide. In addition, guidance will help program and enforcement units within the Department recognize when an applicant or permit holder should be subject to more stringent permit conditions, denial, suspension or revocation procedures.

It should be understood that this guidance is to be applied in context with all existing statutes, regulations and guidance memoranda. Accordingly, any denial, suspension, conditioning or Revocation of a permit based upon compliance history is subject to challenge by way of the Department's hearing procedures.

For the most part denials, suspensions and revocations have occurred in the waste transporter program, in part due to specific statutory authority contained in ECL, Article 27. Enforcement of the Part 364 program has been enhanced due to awareness within the Division responsible for enforcement of those provisions of the need to scrutinize permit applicants. Consistent with the success of that program, a systematic procedure to ensure information flow between enforcement units and permitting units should be established. Ideally, a unified Department-wide information system by which all program and enforcement data can be accessed will provide the mechanism to ensure that this effort is effective. While steps in that direction are being made through implementation of the Environmental Enforcement Data System(1) with eventual incorporation of that system into the Regulatory Compliance Information System, there is a current need to establish a procedure utilizing present information systems.

III. Legal Background

The Department has the general authority to modify, deny, suspend, condition or revoke permits and to refuse to contract with persons or their investors who are found to be unsuitable. Suitability includes such factors as past compliance records, criminal and civil violations.

The power to exercise administrative discretion with regard to qualifications for having a permit or license, the use to which permits or licenses may be put, and the elements of public convenience that must be served before permits or licenses may be granted, may be delegated by a legislative body. The legislative requirement that a person have a permit or license in order to engage in certain activities creates not only an authorization but a command to the permitting and licensing authority to take reasonable steps to ensure that the applicant is a fit and proper person to engage in the permitted or licensed activity.

The Commissioner has been granted authority to issue permits and licenses by the Legislature for the protection and management of the environment of New York State. (See ECL 3-0301.) This authority is in keeping with the legislatively mandated policy for the Department to "improve and protect its, [the State's], natural resources and environment and control water, land and air pollution in order to enhance the health, safety and welfare of the people of the State" (ECL 1-0101). Inherent in that authority is the discretion to deny permits. In fact, the Legislature made this explicit for Uniform Procedures Act (UPA) permits when it provided in Section 70-0115 of the ECL that "the Department may modify, suspend or revoke a permit" and may promulgate regulations to effectuate these objectives.

The courts have recognized that the environmental compliance history of a permit applicant is a relevant consideration regarding qualification for permitting [Matter of Bio-Tech Mills Inc. v. Williams, 105 A.D. 2d 301 (3d Dept., 1985), Aff'd, 65 N.Y. 2d 855 (1985), Olsen v. Town Board of Saugerties, __AD 2d _ (3rd Dept., 1990)].

In addition to the general authority to deny, suspend, condition or revoke permits, the Legislature has specified criteria for such actions in certain statutory schemes. For example:

  1. Section 27-0913 sets forth the criteria to be used to deny, suspend, revoke and modify any hazardous waste permit.
  2. Section 27-1517 sets forth the criteria to be used to deny, suspend, revoke or modify any regulated medical waste permit for transportation.

These are the most widely known statutory provisions in the ECl That explicitly authorize the Department to deny, suspend, revoke or modify permits; however, there are others. Attached to this memorandum as Appendix A is a table which lists the other sections in the ECL that provide criteria for either revocation (R), suspension (S), denial (D) or modification (M). Reference should of course be made to the specific laws and regulations. It is clear from the explicit authority as well as both implied legislative authority and the general authority provided in ECL Sections 1-0101, 3-0301 and for Uniform Procedures Act permits, 70-0115, that the Department can modify, suspend deny or revoke any permit it issues based on the unsuitability of a permitted applicant to carry out the work authorized in a lawful and environmentally protective manner.

IV. Enforcement Principles and Goals

To attain the goals set forth herein, on a case by case basis the Department may:

  1. Undertake civil or administrative enforcement and/or permit proceedings, seeking suspension, modification or revocation of permits in appropriate situations described below.
  2. Undertake a background review of all appropriate applications for permits, and renewals thereof, by utilizing enforcement data collected by Division of Law Enforcement (DLE), Division of Environmental Enforcement (DEE) and from Regional and Central office programs under circumstances described below.
  3. Amend appropriate permit application and renewal forms to include a record of compliance section.

On a case by case basis, the following events, any of which have occurred within ten years of the date of completion of the record of compliance form, should be considered a basis for exercising the Department's discretion in denying, suspending, modifying or revoking a permit in order to protect the environment and preserve the natural resources of the state as the circumstances may warrant. The Department will also consider evidence put forward by an applicant or permittee that the factors enumerated below are not relevant to the Department's exercise of such discretion. Such evidence may include a demonstration that a violator is rehabilitated and has re-established a reasonable record of compliance with the relevant laws.

  1. Whether a permitted or applicant has been convicted of a crime related to the permitted activity under any federal or state law.
  2. Whether a permittee or applicant has been determined in an administrative, civil or criminal proceeding to have violated any provision of the ECL, any related order or determination of the Commissioner, any regulation of the Department, any condition or term of any permit issued by the Department, or any similar statute, regulation, order or permit condition of the federal or other state government, or agency, on one or more occasions and in the opinion of the Department, the violation that was the basis for the action posed a significant potential threat to the environment or human health, or is part of a pattern of noncompliance.
  3. Whether such permittee or applicant has been~denied a permit for the same or a substantially similar activity, or for the violation of a similar provision of federal or state law by New York or by any other state or federal authority.
  4. Whether the applicant or permittee has engaged in conduct that constitutes fraud or deceit or has made materially false or inaccurate statements in the permit application or supporting papers or in the conduct of the permitted activity.
  5. Whether the permittee has exceeded the scope of the project as described in any permit.
  6. Whether a permittee or applicant has been convicted of the crime of filing a false instrument or making a false statement to the Department or any other agency regarding compliance with the laws of any state or the United States.

For purposes of considering the suitability of a permittee or applicant, the above guidelines should be applicable not only to the immediate entity but to any other corporation, partnership, association or organization in which the permittee or applicant holds or has held a substantial interest or in which it has acted as a high managerial agent or director or any other individual, corporation, partnership or organization which holds a substantial interest or the position of high managerial agent or director in the permittee or applicant.

For purposes of this policy "high managerial agent" shall have the same meaning as that term is given in Section 20.20 of the Penal law. Substantial interest has the same meaning as is given that term in Section 27-1517 of the ECL.

For purposes of this policy, allegations of any of the violations described herein can be included and proven in any administrative action to deny, suspend, modify, condition or revoke a permit or license issued by the Department. Nothing herein shall in any way be construed to impair or alter the Department's authority to modify, condition, suspend or revoke permits pursuant to 6 NYCRR 621 or other authority.

For purposes of this policy, the Department will initially consider other state or United States matters which resulted in misdemeanor or felony convictions or civil settlements of matters which resulted in a penalty in excess of $25,000 that was imposed in the last ten years from the date of the record of compliance form. (The cost of environmental benefit projects and suspended or possible stipulated penalties are not to be ordinarily used in reaching the $25,000 threshold.) In certain instances, the Department staff may use different thresholds because of lesser statutory sanctions in specific areas of concern. In the event the Department determines further inquiry is warranted due to questionable compliance history, it may require the applicant to submit additional information regarding environmental offenses both within and without the United States.

V. Procedures

  1. Permit Applications

    In those programs or program areas where the Commissioner has approved the use of the ROC form as part of a complete application, or as part of an application for a permit or renewal, the Division of Regulatory Affairs (2) (DRA) shall review the compliance history data list and records of compliance information received to determine if it may fall within the guidelines set forth in Section IV herein. If DRA has a reasonable belief that such permittee or applicant is a candidate for action under this guidance memorandum, it shall notify the Regional Director and the Regional Attorney, who in turn shall consult with the Deputy director, Division of Environmental Enforcement (DEE). The Regional Director shall consult, as appropriate, with regional program staff. DRA may also send a letter to the permit holder or applicant requesting additional information regarding the act or acts which are the subject of concern. DRA can indicate the application has been determined incomplete until the requested information is provided to the satisfaction of the Department. DRA may issue a compliance date consistent with all applicable laws after which the application will be denied for failure to supply the requested application information. DLE will coordinate a background check and gather information as listed in Section VI and report its findings to DEE, the Regional Director and Regional Attorney. If DEE, the Regional Attorney and the Regional Director determine that a case for denial, modification, revocation or special conditions exists, a referral will be made to DRA to issue appropriate notification to the applicant or permittee. Referral would then be made to the Regional Attorney to commence the appropriate action, as deemed necessary. If the action is taken in the context of the permitting process, a hearing may be required pursuant to 6 NYCRR Parts 621 and 624. If the action occurs in an enforcement proceeding, a hearing may be held pursuant to 6 NYCRR Part 622.

    In the event a record of compliance form is received and a permit applicant holds several permits or must apply for more than one permit, the applicant need only to fill out a single record of compliance fore for all its applications. A statement by the applicant or permittee that the form was submitted previously, together with the permit application number with which the form was submitted, should accompany any additional permit applications. the record of compliance form in any such cases must be updated as renewal applications are submitted. Alternatively, an affidavit attesting that the compliance history has not changed since the last submitted form, will be accepted. DRA will devise a procedure for inter-regional notification that a record of compliance form has been properly completed and submitted.

    When an application is for a Non-Uniform Procedures Act permit or renewal, the lead permit program shall have the same responsibilities as described for DRA in the above paragraph. Where permits or renewals are issued by central office program, referrals should be made directly to the Deputy Director of DEE.

    After an application has been deemed complete, the lead permit program shall also review it. If the lead permit program has a reasonable belief that the applicant is not suitable to hold a permit, based on the guidelines of this memorandum, the matter should be referred immediately, with notice to DRA, to the Regional Attorney and Regional Director who shall consult with the Deputy Director of DEE for coordinated review consistent with the above procedures.

  2. Revocation, Suspension, Modification of Existing permits

    When it comes to the Department's attention that any person who matches the Guidelines in Section IV and holds a permit, or is undertaking activities for which a permit is required, the Regional Attorney, Regional Director and the Deputy director of DEE shall be notified. When DEE, the Regional Director and the Regional Attorney make a determination that a case for revocation, suspension or modification of an existing permit or permits exists, or that an enforcement order should include terms that address the issue of unsuitability, the appropriate Regional Attorney and program shall be notified to commence a modification proceeding or an enforcement action, as appropriate. If the permit involves a Non-Uniform Procedure Act permit, the lead program shall be part of the consultation above described instead of DRA. Hearings will be held pursuant to appropriate standards and regulations.

    When appropriate, the Department may allow a violator to continue to operate pursuant to order until its permit application is processed, granted or denied. The Order and/or subsequent permit may also address the issue of suitability.

VI. Specific Responsibilities

To implement this guidance memorandum, the following responsibilities are hereby delegated and directed.

  1. Regional attorneys and other OGC attorneys, where appropriate, shall initiate and conduct administrative proceedings to deny, revoke, modify, condition or suspend permits or initiate enforcement proceedings.
  2. The Division of Law Enforcement (DLE) shall compile information and identify permitters who fit into the criteria listed under Section IV herein. To accomplish this goal, DLE shall designate a contact person who shall review information within DLE, DRA, DLA and DEE and where appropriate, the Northeast Hazardous Waste Project. Upon identifying violators subject to the criteria listed under Section IV, DLE shall notify the permit issuing program, DRA, DLA and DEE. All the contact units shall make Available to DLE any permit application information they possess.
  3. DRA, DLA and DEE should each designate a contact person for implementing this guidance memorandum whose responsibility shall be to coordinate with DLE and the appropriate programs for the denial, suspension, modification or revocation of permits. Regional Directors should designate a contact person in each regional office who shall coordinate with the appropriate divisions implementing this guidance memorandum.
  4. DEE shall provide DRA with a monthly list of all individuals and entities which have been convicted of one or more ECL-related felonies or misdemeanors and any civil orders or settlements with the Department where a penalty of $25,000 or more was involved or for which substantial remediation was required.
  5. The Director of each office listed below shall appoint a management level representative to sit on a Record of Compliance Committee (ROCC).
    1. Division of Law Enforcement
    2. Division of Regulatory Affairs
    3. Division of Environmental Enforcement
    4. Division of Water
    5. Information Systems Development
    6. Division of Solid Waste
    7. Division of Hazardous Substance Regulation
    8. Division of Air Resources
    9. Division of Fish and Wildlife
    10. Division of Fiscal Management
    11. Division of Legal Affairs
    12. Division of Mineral Resources

The committee members shall have the responsibility of coordinating with respective executive staff member who shall ensure communications among Divisions under their jurisdiction. Coordination with programs shall be made on a regular basis whenever possible.

The committee shall also recommend uses of the ROC form and, in consultation with program, what statutory and regulatory amendments are necessary to further enhance the Department's ability to screen potential permitters and take appropriate action against unsuitable parties.

VII. Implementation

  1. Pursuant to Paragraph V procedures, DEE will maintain and distribute the list of parties assessed penalties of $25,000 or more for enforcement matters of the Environmental Conservation Law or related penal law convictions to Regional Attorneys statewide and the Division of Fiscal Management's contract Unit. DRA will also receive a copy which it will Distribute statewide to its permit administrators. It would be appropriate and it should be seriously considered that parties on the DEE list be required to complete a ROC form. This information would be available to other agencies upon request.
  2. The Department will continue to commit the necessary resources to the creation of a centralized data system. Currently, the effort to revise the EEDs system as part of RCIS is intended to meet this objective. The proposed EEDs system will result in identifying to program personnel (e.g., DRA) any permit applicant who has a compliance history within New York State. The EEDs system will be able to retrieve the applicant's compliance history upon inquiry, coordinating or retrieving the data from all of the Department's data systems. No manner of obtaining information from an applicant is foolproof. However, the ROC form coupled with a centralized data system appears to be the most reliable manner For obtaining this information.
  3. DEC will use the ROC form on a statewide basis in a phased approach. Until a centralized data system is developed, the expansion of the use of the ROC form is important and necessary. However, the use should be carefully focused toward problem areas within each program. The record of compliance policy applies to every permit applicant; however, the use of the form is not mandated for every permit applicant. The compliance history of fixed, longstanding local permittees within a region is generally known. Exclusively local companies (i.e., located in only one region) which fall within this description may be exempted by DEC from the ROC requirement or these permit applicants could be subject to a combination of central data system review and annual report review.
  4. Each program director and regional director, after consultation with the ROCC, is directed to identify specific areas within their jurisdictions that warrant use of the ROC form. Requests should be routed through the appropriate Deputy Commissioner and through the General Counsel to the Commissioner for his or her concurrence. Where possible, this initiative should be integrated with the permit priority system. In addition, the Commissioner on his or her own initiative or on the recommendation of the ROCC can decide which additional areas will be included in the program.
  5. The ROCC will continue to evaluate the effectiveness of the program. Some of the areas ROCC is directed to consider are:
    1. The necessity of regulations for an annual ROC form unrelated to the permit process. Such an expansion would require resources to process the form and/or to make it scannable by computer to reduce personnel resources.
    2. Expansion of the form based upon the largest tax emitters. Use of SARA Title III annual reports as a basis for adding ROC form targets should be considered.
    3. Integrate into any centralized data system the background data being generated by the Department for contractor purposes so that the central and regional offices will have access to it.
  6. Exempt publicly traded companies from providing background data on boards of directors pursuant to ROC form requirements. However, such companies must provide the names of all stockholders who own 10% or more of stock in the applicant company. The purpose of the ROC Form is to uncover possible nefarious operators who are behind corporations but are not known to the Department. The widely disbursed ownership of a publicly traded entity makes it extremely unlikely for that type of problem to exist.

Thomas C. Jorling

Dated: March 5, 1993

1. The Visual Inspection System for Tracking and Analysis superseded the Electronic Enforcement Data System effective January 1, 2000.

2. Now known as the Division of Environmental Permits.

APPENDIX A

Appendix A: Other Sections in the ECL that provide criteria for Revocation, Suspension, Denial, or Modification to Permit(s)
SUBJECT SECTION SANCTION CRITERIA
Fish & Wildlife 11-0305 R As provided by law.
Fish & Wildlife 11-0507 R At its pleasure.
Fish & Wildlife 11-0511 R At its pleasure.
Fish & Wildlife 11-0515 R At its pleasure.
Fish & Wildlife Guides 11-0533 R,S,D Misrepresentation in application.
Hunt, Fish or Trap 11-0719 R,S,D Violation / Article causes death, failure to report accident, Reckless conduct, under 16 / no supervision.
Fish & Wildlife (Falconry) 11-1007 R Fails to care public nuisance violation / chapter, regulation License.
Hunt 11-1209 R Intoxication, alcohol or drugs.
Birds 11-1731 D,S,R R = Violation / Section D,S = Any reason it deems sufficient.
Hunt, Fish or Trap 11-2115 R,D Trespass.
Marine Resources 13-0311 R,S In the public interest.
Marine Resources 13-0315 S,R Violation / Permit.
Marine Resources 13-0325 R,R Taking uncertified waters.
Water Resources 15-1525 R Violation / Section, Rules.
Water Resources 15-1739 R Violation / Construction schedule, failure to pay fees.
Water Pollution 17-0303 R,M To prevent or abate pollution.
Water Pollution 17-0815 R,S,M Violation / Permit misrepresentation change in permit Conditions.
Air Pollution 19-0302 D,M,S,R Whatever the Department regulations designate.
Mineral Resource
(Underground Storage)
23-1301 R,S Violation / ECL Regulations, Order Permit.
Mineral Resource
(Mining)
23-2711 S,R,D S,R = Violation / Permit Land = Use Plan, D = Violation / permit, Title 27 Regulations.
Mineral Resource
(Mining)
23-2717 R,S S = Failure to provide reclamation bond S,R = Violation / reclamation equipment.
Freshwater Wetlands 24-0705 D,M,S,R Effect on public health and the environment.
Tidal Wetlands 25-0403 D,M,R,S Compatibility with public health and environment.
Solid Waste
(Transporters)
27-0305(4) D,M,R,S Carry out and enforce this section.
Solid Waste
(Facilities)
27-0707 D Compliance, unfair competition, EIS, public hearing.
Pesticides
(Commercial Permits)
33-0901 D,M,R Public interest, misrepresentation, fraudulent practices, inadequate facilities.
Pesticides
(Purchase Permits)
33-0903 D,M,R Public interest, misrepresentation, failed to justify violation / permit, label, ECL, regulations, insufficient knowledge or experience.
Pesticides 33-0909 D,R Misrepresentation, convicted of a felony, fraudulent business practices, violation / permit, label, ECL, regulations, insufficient knowledge or experience.
Catch-All 70-0115 M,S,R Cannot be arbitrary or capricious. Must give notice and opportunity to be heard.
Water Pollution 71-1929 R Violation / Permit.
Used Oil 71-2201 R,S,D Violation / Title 23, Article 23, Order, Permit.
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