DEE-17: Summary Abatement Order Enforcement Policy

Commissioner Policy

The DEC Policy System
Department ID: DEE - 17
Program ID: N/A
Issuing Authority: Thomas C. Jorling, Commissioner
Originating Unit: Environmental Enforcement, Compliance Assurance Bureau
Signature: Thomas C. Jorling
Date: 15 May 1992
Phone: (518) 457-4348
Issuance Date: 15 May 1992
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:

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.
Any penalty calculations undertaken hereunder by DEC in anticipation of litigation are exempt from disclosure under the Freedom of Information Law.
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.
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. Purpose

The Commissioner has the authority to order summary abatement pursuant to ECL 71-0301 and Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York (NYCRR) Part 620⁽¹⁾. It is the purpose of this document to establish guidance for the use of this important enforcement tool and to encourage its use in appropriate circumstances. This document does not establish a legal standard against which Department conduct may be judged nor may its terms be introduced into the record of any DEC administrative hearing except as guidance for staff and the Office of Hearings. to the extent that this document suggests a standard or procedure at variance with statute or regulation, the statute or regulation controls.

II. Background

Enforcement devices such as Notices of Violation, Orders on Consent and Commissioner's Orders after hearing remain the mainstays of the Department's enforcement program. However, the issuance of Summary Abatement Orders (SAOs) pursuant to ECL 71-0301 should be considered when it is necessary to ensure immediate response to significant threats to the health or welfare of the people of the State or threats of irreversible or irreparable damage to natural resources.

Historically, the Commissioner has issued SAOs to respond to a variety of exigent circumstances where direct harm to human health or the environment occurs or is threatened. Use of this mechanism has resulted in timely and appropriate response to serious health or environmental hazards. This directive is intended to better define the circumstances in which an SAC is appropriate in order to facilitate its use as an effective enforcement tool. Department staff should consider the full range of enforcement options in reaching determination on the use of an SAC.

III. Guidance Objectives

The objectives of this Enforcement Directive are as follows:

To discuss the statutory standards for issuance of SAOs.
To establish procedures for issuance of SAOs, including guidance for preparation for associated administrative hearings.
To provide a model SAC format.

IV. Statutory Standards for Issuance of Summary Abatement Orders

ECL 71-0301 establishes the general criteria that SAOs must be directed toward "a condition or activity which...presents an imminent danger to the health or welfare of the people of the State or which...results in or is likely to result in irreversible or irreparable damage to natural resources and...it therefore appears to be prejudicial to the interest of the people of the State to delay action until an opportunity for a hearing can be provided...." These standards distinguish SAOs from the ordinary Commissioner's Orders which are issued to require compliance with Department laws and rules generally. As with judicial temporary restraining orders and preliminary injunctions, SAOs are contemplated to be issued in cases where, due to exigent circumstances, an order must be issued prior to a full Hearing.

Circumstances where an SAO has been found to be appropriate include but are not limited to:

threatened dam failure;
excavation threatening
unique natural resources and threatened or endangered species;
raw sewage discharge in a populated area in violation of A SPDES permit;
need to reduce reservoir release levels due to drought;
failure to pump contaminated water in violation of permit requirements;
illegal management of hazardous wastes, including burning OS SCB-contaminated solvents;
contamination of drinking water;
illegal hazardous waste disposal at a municipal landfill;
leaking containers of chemicals and hazardous wastes in a warehouse in a populated area;
discharge of oil and brine from an oil production facility to Surface waters used for drinking purposes;
discharges and threatened discharges of hazardous chemicals from an abandoned facility accessible to children; and
toxic air emissions in quantities that may adversely effect public health.

The above list should not be construed to circumscribe the use of SAOs but rather represent examples where issuance of such orders has been found to be appropriate.

V. Discussion

Imminent Danger; Irreversible or Irreparable Damage.
The concepts of imminence and irreparability/irreversibility in ECL 71-0301 are analogous to the standards applicable to obtaining temporary restraining orders or preliminary injunctions in court.⁽²⁾

The case law on temporary restraining orders and preliminary injunctions affirms the concept in the CPLR that the use of such mechanisms contemplates their ultimate replacement with a permanent order, after due process is provided. As with a temporary restraining order or preliminary injunction, an SAO is an order to be issued in cases where the threatened danger to human health and welfare or the irreversible or irreparable harm to natural resources contemplated has a reasonable possibility of occurring or continuing to occur pending a full hearing and issuance of a Commissioner's Order pursuant to statutory and regulatory procedures.

It has been held in the Berman decision and order of the Commissioner that:

By way of examining the question of what constitutes "imminence," the courts have opened that the danger need not be immediate [United States v. Waste industries, 734 F.2d 159, 165 (4th Cir. 1984): United States v. Reilly Tar and Chemical Corp., 546 F. Supp. 1100 (D. Minn. 1982)]. It has been held that an endangerment is "imminent" if factors giving rise to it are present, even though the harm may not be realized for years [U.S. v. Conservation Chemical Co., 24 ERC 1008 at 1030 (W.D. Mo. 1985)].

Whenever the courts have interpreted these statutes, they have acknowledged the need to factor into the decision both the nature of the endangerment which may be presented and its likelihood, recognizing that risk may be "assessed from suspected, but not completely substantiated relationships between facts, from trends among facts, from theoretical projections, from imperfect data, or from probative preliminary data not yet certifiable as fact" [United States v. Vertac Chemical Corp., 489 F. Supp. 870, 885 (E.D. Ark., W.D. 1980) citing Ethyl Chemical Corporation v. Environmental Protection Agency, 541 F.2d 1 (D.C. Cir. 1976)]. However, in recognition of the intent of these statutes to protect human health and the environment, the courts have recognized the need to liberally construe them in order to accomplish and maximize their benefits (U.S. v. Conservation Chemical Co., supra in favor of protecting the public health, welfare and the environment when making any determination thereunder (Id. at 1031). To some extent this philosophy has been codified into the regulations governing the summary abatement provision which place the burden of proof on the responding party to prove that the complained of condition or activity does not come within the provisions of the statute [6 NYCRR 620.3(b)].

The fact that a type of environmental damage might be capable of eventual cleanup or remediation (e.g., ground water decontamination or restoring a filled in or degraded wetland) does not preclude its being considered irreparable or irreversible. The imminence of a threat presenting a danger of causing irreparable or irreversible environmental damage has a time component related to it. The term "irreparable or irreversible" is defined to encompass damage of long duration and not merely damage that never can be reversed: to define otherwise would allow for the argument that Mother Nature, given enough time, cleanses the environment and so, no environmental damage is irreversible. Such an argument would deprive the Department of the authority to act in situations wherein action would be clearly warranted and allow the exacerbation of an apparent threatening situation.

The United States Supreme Court provides guidance with respect to the construction of the term "irreparable damage to the environment" in a case involving whether to grant injunctive relief, an appropriate analog to the exercise of the Commissioner's authority under ECL 71-0301 because both situations concern themselves with matters of equitable relief:

Environmental injury, by its nature, can seldom be adequately remedied by money damages and is often permanent or at least of long duration, i.e. irreparable.⁽³⁾

This principle has been followed in a number of cases, including Citizens for Environmental Quality v. United States et al.,⁽⁴⁾ in which the Court enjoined the Federal Government from offering for sale, timber in a federal forest.⁽⁵⁾

Summary abatement can and should be designed to extend as long as the threat is present or until the requirements of the SAO are fully satisfied or replaced by a Commissioner's Order, after opportunity for hearing.
Threats to Human Health.
Where harm or threat of harm to human health provides a basis for consideration of issuance of an SAO, it is suggested that staff consult with the State Department of Health on the existence of harm or a threat of harm to human health. Once such consultation with the NYSDOH occurs, it is then incumbent on the Commissioner to determine if that threat warrants summary abatement action or whether other statutory summary abatement authority is appropriate.

Accordingly, an early step in the process of evaluating the need for an SAO in cases of harm or threat of harm to human health can be consultation with the NYSDOH.
Natural Resources.
It is the policy of the Department to construe the term "natural resources" under ECL 71-0301 as a broad concept encompassing a variety of definitions under a variety of statutes. It is useful to examine some of these definitions in order to illustrate the scope of what is meant by this term.

Natural resources include
- "shorelines, beaches, parks and roadways" (ECL 3-0301);
- "soil, forests, water, fish and aquatic resources therein" (ECL 15-0501);
- "forests, soil, water, fish and wildlife" (ECL 15-0511);
- the Great Lakes (ECL 15-1601);
- oil, gas and salt brine (ECL 23-0301);
Environment means any
- "water, water vapor, and land including land surface or subsurface, air, fish, wildlife, biota and all other natural Resources" (ECL 27-0303,27-0901, 27-1101, 27-1301, 40-0105); and significant fish and wildlife habitat (ECL 34-0108);
- "land, fish, wildlife, biota, air, water, ground water, drinking water supplies..." (Federal Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C.A. §9601 et seq.)
In many cases, SAOs have been issued to abate and alleviate threatened or actual damage to a variety of natural resources, including Karner Blue Butterflies, Black Terns, surface water and ground water used as drinking water supplies and threats to natural Resources generally in the cases of dam safety. For many cases, however, no natural resource threat was specifically alleged and only facts supporting the public health and welfare standard were asserted.
Activities Which May Be Proscribed by SAO.
Pursuant to ECL 71-0301, the Commissioner has the authority to order any person causing, engaging in or maintaining a condition or activity which may be summarily abated "to discontinue, abate or alleviate such condition or activity." Accordingly, the proscription in an SAO must reasonably relate to the circumstances which are the cause of the imminent danger to the health and welfare of the people or which results or may result in irreversible or irreparable damage to natural resources. Where the facts and circumstances of a given case meet one or both of these standards, obligations created by the SAO may include such things as:
1. Cessation of activity posing a threat to the environment or human health, e.g., discharge or emission of a pollutant, disposal of solid or hazardous waste, improper storage of hazardous substances.
2. Removal or modification of physical circumstances which pose a threat of discharge or emission of a pollutant, including such things as emptying and/or removal of tanks, over-packing and removal of containers, cessation of identified processes.
3. Collection and removal of discharged pollutants, including excavation of contaminated soils or sediments.
4. Installation of ground water control and treatment measures including well points to pump and contain contaminated ground water and, where appropriate, collection of floating substances and the installation of cut-off walls.
5. Installation of berms, dikes and surface run-off control devices and treatment systems for contaminated water.
6. Testing, filtration or other treatment of drinking water; provision of replacement water supplies, including bottled water, installation of replacement drinking water wells and public water supply extension, or monitoring wells to determine the direction, extent of contamination, likely impact on receptors, natural resources (i.e., drinking water).
7. Installation of ventilation and control systems to remove or control fumes or hazardous air pollutants.
8. Erection of protective fencing and warning signs.
9. Cessation of activity being undertaken by an entity which has a compliance history indicating the likelihood of continuing noncompliance, and, therefore, there is reason to believe that the responsible person will act in a manner which presents an imminent danger to the health or welfare of the people of the State or which results in or is likely to result in irreversible or irreparable damage to natural resources.
10. Cessation of activity resulting in degradation to wetlands, significant habitat or critical environmental areas.
11. Breaching an unsafe dam.
Although rarely an issue in SAO adjudications, ECL 71-0301 contains a standard requiring that the ordered obligation "relates to the prevention and abatement powers of the Commissioner." Findings should be made that the remedial relief, whether mandatory or prohibitory is necessary to abate or alleviate the condition of activity of concern.

VI. Procedures for Issuance of Summary Abatement Orders

Authority for execution of an SAC resides with the Commissioner. In his or her absence a Summary Abatement Order may be executed pursuant to the authority set forth in the Commissioner's delegation memoranda.

Initial Response to Danger or Threatened Damage.
Whenever circumstances are discovered that appear to meet the standards for issuance of an SAO, as described herein, regardless of whether or not such circumstances involve violations of the ECL or Department rules, the Regional Director and Regional Attorney shall be notified immediately.

If the Regional Director and Regional Attorney in consultation with program staff (or for centralized programs the Program Division Director and Office of General Counsel, Compliance Counsel) concur that the circumstances justify issuance of an SAO, the following steps should be followed:
1. If needed, appropriate staff will be directed to undertake additional investigation to confirm that the offending circumstances exist and to confirm the identity of responsible parties. Where there are potential impacts on human health, the NYSDOH or local DOH will be contacted for their involvement and evaluation.
2. The General Counsel will be contacted and advised of the determination that an SAO is needed. The General Counsel will immediately notify the Commissioner and the appropriate Program or Deputy Commissioner.
3. Generally, although not always practical, use of oral orders should be avoided. In exigent circumstances, issuance of a commissioner's letter to the respondent may be appropriate, though issuance of a formal SAO should occur as soon as possible thereafter.
Issuance of Summary Abatement Order.
1. Preparation of SAO.
2. As soon as possible after discovery of the offending circumstances, an SAO should be prepared by the Regional Field Unit or appropriate Prosecuting Attorney. At a minimum, the SAO Should include the information contained in the model SAO in attachment a to this Enforcement Directive. (Each Regional Office, by its Regional Attorney, shall have available for immediate use a model SAO.) If time permits, affidavits of inspectors and other potential witnesses at hearing should be attached to the SAO.
  
  Once drafted, the SAO, Notice of Hearing (NOM) and associated documents should be immediately forwarded to the Central Office Contact Attorney (the compliance counsel for the program in question) by telefax or E-mail. The Central Office Compliance Counsel will coordinate Central Office review and approval.
3. Scheduling of administrative hearing.
4. At the point at which a decision is made to issue an SAO, the Office of Hearings must be contacted to arrange for scheduling of the expedited hearing. Pursuant to ECL 71-0301, the hearing must occur within 15 calendar days of the date of issuance of the SAO.
5. Execution and service of the SAO.
6. Upon completion of review and development of the final SAO, the attorney should forward the Order to the Central Office contact attorney to coordinate execution by the Commissioner. Upon execution, the SAO should be served upon the respondent(s) personally and by certified mail, return receipt requested. Service should also be made by regular mail upon the respondent's attorney, if known. The SAO is enforceable upon receipt by the respondent.
Preparation of Evidence; Presentation at Hearing.
The expedited hearing procedure contemplated by ECL 71-0301 means that there may be limited time to prepare the Department's case for hearing. The burden is on the respondent to show that its activity or condition does not present an imminent danger to the health and welfare of the people or threaten irreparable or irreversible damage to natural resources, pursuant to ECL 71-0301 and 6 NYCRR Part 620. Nonetheless, the Department staff should consider whether and to what extent the record should be further bolstered to contain proof and factual discussions explaining how the activity or condition maintained by the respondent poses such danger or threatens such damage.

The record upon which the Commissioner will base his or her decision must contain all relevant facts supporting allegations that the statutory criteria are met. This can include only the evidence set forth in the affidavits or it can include additional testimony or other evidence presented at the hearing. The cases uniformly hold that more than "mere allegation" of potential harm is required to meet the factual threshold for temporary or preliminary injunctive relief. Accordingly, Department staff must ensure that evidence supporting issuance of SAOs contains more than conclusory statements of imminent danger to health and welfare of the people or of irreversible or irreparable damage to natural resources. Reasonable engineering and scientific principles should be applied to the known facts to support a department conclusion that an SAO is justified. SAOs should include discussions of the specific health and ecological hazards associated with the activities or circumstances involved and specific natural resources which have been or may be damaged by conditions maintained by or activities of the respondent.

Department staff should consider whether to rely solely on affidavits annexed to the SAO to establish a prima facie case. Although not required by the statute and rules, testimony, documents and other evidence may be put forward by Department staff at the hearing to further support the allegations in the Order and to further support the result. The ALJ's understanding of the case may sometimes be enhanced by provision of witnesses to whom the ALJ may direct questions and from whom additional factual support may be obtained.

Additionally, it is important that Department staff ensure that the evidence supporting an SAO fully describe the connection(s) between the harm threatened and the relief sought.

Pursuant to 6 NYCRR 620.3(e), the Administrative Law Judge has the authority to consolidate the SAO matter with any underlying violation(s) of the ECL, NYCRR or an Order or Permit which may exist. Therefore, in addition to the obligation to meet the SAO statutory thresholds, in some cases, the Department should be prepared to go forward with proofs on underlying violations as well.
Modification of SAOs.
It should be noted that, unless there is a specific delegation or the SAO so authorizes, staff has no authority to modify a summary abatement order of the Commissioner.⁽⁶⁾

VII. Conclusion

The summary abatement authority of the Department is a unique And important power. SAOs should be considered whenever there is "a condition or activity which...presents an imminent danger to the health or welfare of the people of the State or which...results in or is likely to result in irreversible or irreparable damage to natural resources and...it therefore appears to be prejudicial to the interest of the people of the State to Delay action until an opportunity for a hearing can be provided...." Great care need be given whenever use of this broad and powerful authority is considered. However, it is my policy that the Department should expand its use of Summary Abatement Orders in appropriate cases where the legal and factual thresholds have been met.

Date: May 15, 1992

Thomas C. Jorling
Commissioner

1. Please note the Commissioner has parallel summary action authority pursuant to ECL 71-1719, to order the discontinuance of an activity "which in his opinion constitutes danger to the health of the public."

2. However, this standard should not be confused with the differing standard which does not require a showing of irreparable harm for preliminary injunction against violations of the law, rules or a Department Order or permit as set forth in State v. Brookhaven Aggregates. Ltd., 1986, 503 N.Y.S.2d 413. Although violation of the law, rules, etc. contributes to a showing that summary abatement is appropriate, ECL 71-0301 contemplates that additional evidence of threatened harm or damage be provided.

3. Amoco Production Co. v. Gambell, 480 U.S. 531, 107 S.Ct. 1396, 1404, 94 L.Ed.2d 542, 55 U.S.L.W. 4355, 17 ELR 20, 574 (1987).

4. 1989 WL 182546 (D. Colo. 1989).

5. Of special interest is that this case involved a renewable resource--timber-- yet the Court still held that allowing cutting to occur would constitute irreparable damage.

6. In the Matter of Allegro Oil and Gas, decision and Order of the Commissioner (October 20, 1988).

Attachment A

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION

SUMMARY ABATEMENT ORDER and NOTICE OF HEARING

In the Matter of Causing, Engaging In
or Maintaining a Condition or Activity
Which Presents An Imminent Danger to
the Health or Welfare of the People of
New York State or Which Is Likely to
Result in Irreversible or Irreparable
Damage to Natural Resources of the
State in Violation of Section
71-0301 of the Environmental
Conservation Law by

[Insert name(s) Respondent(s)]

Respondent(s)

Pursuant to 71-0301 of the Environmental Conservation Law (ECL), the Commissioner of the Department of Environmental Conservation (Department) has the authority to issue, without prior hearing, a Summary Abatement Order (SAO), requiring any person to immediately discontinue, abate and alleviate any condition or activity caused, engaged in or maintained by such person, which presents an imminent danger to the health or welfare of the people of New York State or which results in or is likely to result in irreversible or irreparable damage to natural resources of the State.
[State name(s) and location of Respondent(s) and of the site, if different]
[State specific facts, including the exact time and location(s) of any inspection(s) or sampling event(s), giving rise to the conclusion of the existence of a danger to the health and welfare of the people, and/or a threat of damage to natural resources. This should include identification of any specific pathways by which pollution is impacting or may impact people, e.g. threatened water supplies, open access to pedestrians, etc. and any special natural resources which are threatened, e.g. wetlands, surface water, recreational facilities, endangered species, ecologically sensitive receptors, etc. Also include findings of any ECL, rule or Order violations. Since this may be the only notice given to respondents of the bases for the SAO, all relevant facts should be set forth. When appropriate, include attachments of sampling results, affidavits, inspection reports, etc.]
The circumstances and conditions caused or maintained by respondent(s) described above constitute an imminent danger to the health and welfare of the people of the State and have resulted in or are likely to result in irreversible or irreparable damage to the natural resources of the State, and relate to the prevention and abatement powers of the Commissioner.
It would further be prejudicial to the interest of the people of the State to delay action required under this SAO until opportunity for hearing can be provided.
NOW, THEREFORE, I HEREBY FIND THAT:
[State the specific-measures required to be undertaken by respondent(s). These measures should include any and all measures which are necessary to abate and alleviate the conditions and activities which present a danger to the health or welfare of the people and to prevent irreversible or irreparable damage to natural Resources.]
Take notice that in the event of respondent's failure to initiate and diligently pursue compliance with this Order immediately after service hereof in the manner herein provided, respondent will be subject to the sanctions provided by Article 71 of the Environmental Conservation Law of the State of New York, and that the Department will proceed further to enforce this Order.
Take further notice that respondent shall have an opportunity to be heard, and to present proof that the conditions set forth above do not present an imminent danger to the health or welfare of the people of the State or have not resulted or will not result in irreversible or irreparable damage to the natural resources of the state. Notice is hereby given that a hearing will be held in the offices of the Department of Environmental Conservation to provide respondent(s) with such opportunity to be heard at the following time and location:
TIME:
DATE:
LOCATION: [Insert street address of DEC Office]
Take further notice that you may appear at the hearing in person or by representative, with or without counsel, and you may introduce witnesses and relevant evidence on your behalf; that all witnesses will testify under oath; that a written record of the proceedings will be made and that you may cross-examine evidence produced against you; and that this hearing shall be conducted in accordance with the provisions of 6 NYCRR Part 620.
Take further notice that this hearing will be held to address any additional remedial requirements necessitated by the violations and conduct of the respondent.
All communication to the Department pertaining to this Order shall be addressed to:
[Insert name and address of Department Attorney]

Dated: [Insert date and County where Order is executed]

_____________________________
Thomas C. Jorling
Commissioner

To: [Insert name and address of respondent(s)]
[Insert name and address of respondent's attorney, if known]