DEE-3: Water Pollution Control Enforcement Policy
The DEC Policy System
Department ID: DEE - 3
Program ID: N/A
Issuing Authority: Henry G. Williams, Commissioner
Originating Unit: Environmental Enforcement, Compliance Assurance Bureau
Signature: Henry G. Williams
Date: 13 December 1984
Phone: (518) 457-4348
Issuance Date: 13 December 1984
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.
This document establishes the policies and procedures by which the Department of Environmental Conservation (DEC) is to insist upon compliance with the New York State law and regulations which control water pollution.
New York State is blessed with abundant water resources. State laws to prevent and abate water pollution are found chiefly in article 17 of the Environmental Conservation Law (ECL). The Freshwater Wetlands Act, Tidal Wetlands Act, the Fish and Wildlife law, and the Water Resources laws (ECL Articles 24, 25, 11, and 15, Respectively) are important also for the preservation and betterment of our surface and ground waters. The control of bulk storage facilities and solid and hazardous wastes under ECL Articles 17 and 27 further safeguard ground water quality. The State Pollutant Discharge Elimination System (SPDES), established under Article 17 of the ECL (principally in Sections 17-0701 et Seq. and Title 8 of ECL Article 17), is the primary vehicle for water pollution control.
In addition to establishing enforcement policies with respect to the foregoing statutes and the regulations promulgated pursuant to them, this Enforcement Guidance Memorandum covers all SPDES enforcement-related activities undertaken by county governments as the result of delegations made by DEC for the implementation of the sPDES program.
ECL Article 17, Titles 7 and 8, make it unlawful to discharge pollutants to the waters of the State from any pipe or other outlet (known as a "point source") without a SPDES permit. SPDES permits are issued with effluent limitations meeting technology-based or water quality requirements.
Since 1975, New York State has participated in the Federal national Pollutant Discharge Elimination System (NPDES). NPDES focuses on point source discharges to surface water. SPDES includes controls of discharges to ground waters as well. ECL Section 17-0801 provides that this State will conform to and meet all applicable requirements of the Federal Water Pollution Control Act, as amended (33 U.S.C. 1251 et seq.), known as the Clean Water act.
DEC has the primary responsibility under State and Federal law for implementation and enforcement of the SPDES program.
DEC has a statutory responsibility to obtain compliance with New York's water pollution law. Much has been done to obtain and maintain compliance. Enforcement actions comprise but one phase of the regulatory process.
Enforcement is necessary for legal, environmental, health, and for economic and social fairness reasons. In sum, the objectives of DEC's SPDES enforcement program are:
to demand compliance, to establish an "enforcement presence" and to provide consistency and unity to sanctions imposed for non-compliance.
Detailed Discussion of Policy Objectives
Demand, and whenever necessary compel through the enforcement process, compliance with all effluent limitations and other conditions mandated by law.
The key measure of this Department's performance in water pollution control is protection of water quality and improvement to support best usage. In order to achieve those objectives, it is necessary to take regulatory action against violators. The purpose of any regulatory action is to encourage and obtain adherence to law and/or where necessary by enforcement action to penalize improper conduct.
DEC will use the entire spectrum of its statutory powers to enforce compliance with water pollution control laws. When using Its enforcement powers, DEC's imposition of penalties, permit suspensions, permit revocations, sewer hook-up moratoria, etc. Should be calculated in the first instance to obtain expeditious compliance and to make compliance more attractive and less expensive than noncompliance. In order to accomplish the compliance objectives, it is necessary to follow through and demonstrate the will and authority of the Department to have sanctions imposed in appropriate cases.
The ECL provides for the assessment of civil and administrative penalties and other sanctions where violations occur. Culpable mental state or actual environmental harm need not be proven in order to take enforcement action. However, DEC must utilize its enforcement resources in a manner calculated to obtain the greatest environmental benefit with its limited resources. It may be impractical and counterproductive to environmental protection to obtain penalties and other sanctions in each and every instance of violation.
However, there are at least four circumstances where DEC Enforcement personnel must seek the assessment of payable penalties and other sanctions.
Where a discharger has engaged in willful, bad faith, or negligent conduct, which has resulted in a persistent or preventable violation, punitive penalties for this conduct must be sought. Unpermitted discharge violations are to receive special scrutiny for this type of conduct.
Where a discharger has gained economic advantage by non-compliance while failing to take responsible steps towards compliance, a penalty must be sought and related to the size of the unlawful economic benefit.
Where tangible public health and/or environmental damages have been detected, e.g., contamination of a water supply or fishkills, a penalty must be sought. The amount of the payable penalty should be related to the size of the damage.
Where substantial administrative or judicial efforts are required to bring a source into compliance with well-defined legal obligations, a penalty must be sought which is related to these costs.
A penalties guidance document in the Enforcement Policy Series will be issued shortly. This guidance will enunciate the factors that Administrative Law Judges and I will utilize in assessing penalties and sanctions after hearing. This guidance will be applicable to Orders on Consent as well. The penalties guidance document will provide direction on the use of future stipulated penalties, suspended penalties and the circumstances where penalties may be inappropriate. While Regional and case-specific factors may justify a wide range of penalty actions, DEC will Establish basic approaches to penalties in order to provide consistency and effectiveness to its environmental enforcement program.
The ECL provides civil/administrative penalties for practically every violation. There is an extremely broad range of penalties and relief which may be sought under the ECL. Each and every prohibition and potential basis to allege violations should be considered in preparing case reports so that adequate relief may be fashioned in terms of penalties and corrective action.
Administrative enforcement through consent orders and orders issued after hearing remains the primary means for taking enforcement action.
However, the use of the criminal and civil judicial processes must not be overlooked in choosing compliance/enforcement strategies. Where the elements of criminal violations can be sustained, criminal enforcement through referral to the Attorney general, District Attorney, or United States Attorney must be considered.
Establish a credible "enforcement presence" in the mind of the regulated community so that non-compliance is deterred and so that the regulatory process is fair and equitable to all.
DEC will make every effort to communicate to the public and regulated community our will and capability to undertake enforcement cases.(1)
The premise of an "enforcement presence" connotes that the cases which DEC handles will be those that fit into an overall design and are not merely the ones to which DEC must react. By focusing on gaining compliance by significant dischargers in significant non-compliance, DEC will achieve the greatest environmental results with available regulatory resources. (The Criteria for "significance" are delineated in Division of water guidance documents: TOGS 84-W-2 and 84-W-9.) By publicizing these actions, the Department will create and maintain a reputation of competent and firm enforcement. However, no class of non-compliance will be immune from enforcement attention.
DEC shall continue to develop and utilize relationships with other enforcement agencies. DEC shall, wherever our personnel resources allow, lend its technical support to these agencies by providing expert testimony and information to carry on water pollution control prosecutions, where such prosecutions are not inconsistent with this Department's own water pollution control Efforts.
The enforcement program will benefit from greater public awareness of water pollution control problems and the strategies which can be applied to any given problem. DEC will be prepared to discuss alternative rights of actions which citizens may pursue on their own.(2)
Provide consistency and unity to the sanctions imposed. the Department's enforcement discretion shall be exercised in a consistent manner from Region to Region, except as constrained by identifiable Regional differences.
This Memorandum reiterates the premise and policy that the nine regional Offices of DEC will implement SPDES enforcement programs which are subsets of a larger and coherent State program.
Timely and appropriate minimum enforcement responses have been and will continue to be developed by DEC to ensure that New York's SPDES enforcement program is applied uniformly throughout the State. Uniformity is a matter of equity.
Furthermore, establishment of minimum uniform responses will allow DEC personnel to deal swiftly and efficiently with most types of violations (unique circumstances will always arise). The existence of explicit State enforcement guidance will remove much of the time-consuming uncertainty as to the nature and quality of DEC's response to SPDES violations. Flexibility remains for regional personnel to craft appropriate responses to augment the minimum provided by Department-wide guidance. The Divisions of Water and Environmental Enforcement shall periodically review the practices of regional personnel to recommend further adjustment to the enforcement response guides.
The development of the enforcement response guidance is a joint responsibility of the Divisions of Water and Environmental Enforcement. The guidance, which will be consistent with the State/EPA Enforcement Agreement and to the extent possible with national guidance, is to be incorporated into the Division of water's Technical and Operational Guidance Series (TOGS) after legal review by the Division of Environmental Enforcement.
Attached to this Memorandum is the section of the State/EPA agreement dealing with "Timely and Appropriate Enforcement Response" (Appendix I). This Appendix, along with the "Notice of National Municipal Policy on Publicly-Owned Treatment Works" (Federal Register of January 30,1984, attached as Appendix II), are adopted as part of DEC's SPDES enforcement policy.
While more specific enforcement response guidance is to be developed, it is the policy of DEC with respect to all dischargers to require the construction, upgrading and operation of these facilities as necessary to protect the quality and intended best use of the State's receiving waters and to comply with provisions of the ECL and the Clean Water Act. This standard of performance is required, regardless of the availability of State or Federal financial assistance. In carrying out this policy, with respect to municipalities, DEC will require non-complying municipal dischargers to develop plans and schedules for coming into compliance as soon as possible, but by no later than July 1988.
Of a high priority with DEC are the municipal dischargers which have constructed facilities, particularly those which used Federal and State construction grant funds but are not achieving compliance with SPDES permit limits. These dischargers will be required by terms of DEC administrative orders and permits to submit Composite Corrective Plans (CCP) to DEC for approval, detailing how they intend to achieve compliance. Terms and conditions of such plans will subsequently be embodied in orders.
Municipal dischargers needing construction of facilities in order to come into compliance will be required to submit Municipal Compliance Plans (MCP) to DEC for approvals, detailing how they intend to come into compliance by July 1, 1988, or explaining extraordinary circumstances which will prevent compliance by July 1, 1988. Terms and conditions of such plans shall also be embodied in orders.
It is intended that submission of CCPs and MCPs will occur During Federal fiscal year 1985 as called for by the National Municipal Policy, with CCPs required in the short term and MCPs in the longer term (a reasonable time will be given for development, with six months as the typical maximum for MCPs and three months for CCPs).
Where extraordinary circumstances documented in approved CCPs and MCPs make compliance by July 1, 1988 impossible, reasonable alternative schedules will be developed for compliance as soon as possible after that date. It is currently presumed that any extension of scheduled compliance beyond July 1, 1988 will need to be embodied in judicial orders consistent with provisions of the National Municipal Policy.
Municipal dischargers for which construction is already underway will be monitored closely for progress in meeting construction schedules. If significant schedule violations occur, DEC may require an MCP to be submitted, and also issue an administrative order or obtain a judicial order to bring about completion in the shortest possible time.
IV. Development and Execution of an Annual Enforcement Workplan
Broad statements of intent and objectives do not complete an enforcement policy. Specific objectives shall be developed which reflect past program experiences, environmental concerns (i.e., water quality and public health priorities), agency resource constraints, and estimates of future non-compliance.
Each year, under the direction of the General Counsel, DEC will prepare a SPDES enforcement workplan specifying the best estimates possible of projected enforcement undertakings for the coming State fiscal year. The workplans will also be useful in identifying where agency resources would be most effectively applied.
The enforcement workplan constitutes a State commitment to meet the specified objectives. As such, the Commissioner will hold responsible the units and individuals accountable for the performance of the stated objectives.
Information from the Department's new Environmental Enforcement Data System will be used as an additional tool to evaluate Regional Office and program responsiveness. Environmental quality and public health protection are the real measures of this Department's public service; however, surrogate indicators of the increments toward clean water are substitute measures of the effectiveness of this agency.
In developing the yearly enforcement workplan, DEC shall apply the priority factors listed below. While the Office of General Counsel is responsible for development of the final workplan, it is the obligation of the Division of Water to provide projections of the volume of enforcement cases. It is the obligation of the Office of General Counsel to ensure that appropriate enforcement response is made in all cases referred for enforcement.
The factors are to be applied in the following order of relative importance:
Enforcement activities will focus predominantly upon "significant class facilities." (as that term is defined in TOGS 84-W-26).
Within this category, top priority will be devoted to facilities discharging to "priority water problem segments," identified in the Division of Water's "Priority Water problem List." (TOGS 84-W-4).
Any dischargers which endanger public health and the best use of receiving waters shall be targeted for enforcement.
Current Federal policy which is required under the terms of the state/EPA agreements and EPA's authorization of New York's SPDES program.
Current-year guidance which is consistent with State policy and program plans.
Matters which, while of something less than major environmental significance, may nonetheless reflect strong citizen or regional interest. These matters might include low impact unpermitted discharges by small sources, for example.
It is important to note that facilities which impair or could impair public health and stream best usage shall be targeted for enforcement without regard to ownership status, i.e., public, commercial, private or industrial.
The listing below is not intended to be all-inclusive of the many employees and officers of this Department critical to the execution of a competent and cohesive SPDES enforcement program. This listing is a bare conceptual outline of the integrated program responsibilities necessary to conduct the SPDES enforcement effort. It is intended to provide guidance on the division of responsibilities at several critical points of connection in the SPDES enforcement program.
Director, Division of Water (DOW)
The Director of DOW is the SPDES program chief, who is directly accountable for both permit substance and compliance activity under SPDES. The Director of DOW is responsible for developing general and case-specific pre-enforcement compliance strategies, conducting program communications with EPA, and communicating Departmental Compliance strategies to Regional units. Additionally, through the Director of the Bureau of Wastewater Facilities Operations, the Director of DOW has lead responsibility to see that facility violations are analyzed and that Regional concerns are addressed in -accord with Departmental policy through the Integrated Compliance Strategy System and for coordinating with EPA through the significant Non-Compliance Action Program.
The Regional Director has the responsibility to see that regional personnel carry out Department policy and is the direct supervisor of the Regional Engineer, to whom the Regional Water engineer reports. The Regional Director must balance daily work demands and exercise judgment to allocate resources to most effectively carry out the requirements of competing Environmental Enforcement policies. The Regional Director, through docketing or other means, must make case-specific decisions as to the timing and manner of regional actions to carry out Departmental enforcement policy. The Regional Director acts for the Commissioner in executing Orders on Consent, according to Organization and Delegation Memorandum #84-32 (also issued as Enforcement Policy series Number 1).
Regional Water Engineer (RWE)
The RWE reports through the chain of command to the Regional Director. The RWE is responsible for carrying out the operating guidance of the DOW and for implementing DOW compliance programs. The RWE has the responsibility to advise the DOW of factors which impair or are likely to impair full and professional execution of the water enforcement workplan. The RWE identifies violations, implements pre-enforcement compliance strategies, and consults with the Regional Attorney regarding enforcement strategies.
The Regional Attorney is responsible for handling through the administrative enforcement process violations of the ECL. Typically, the Regional Attorney is also the Department's lead contact for cases referred to other agencies for judicial enforcement. He/she is to render independent judgment on the merits of each case. The independent review must be preceded by a consultation with program staff. The Regional Attorney, as Regional Director of Law Enforcement and Legal Affairs, has the obligation and authority to request program staff to provide information and consultation on any violation or suspected violation of the ECL. Upon referral of a matter to the Regional Attorney by the program, the Regional Attorney becomes the enforcement case manager. All litigation, matters involving permit actions, and all communication involving the case must then be handled by or in consultation with the Regional Attorney.
Environmental Conservation Officers (ECOs)
ECOs have played and will play an increasingly important role in the enforcement of SPDES consistent with this policy and the technical and legal guidance provided by the Divisions of Water and Environmental Enforcement, respectively. The Director of the Division of Law Enforcement shall review new programmatic efforts to engage ECOs in the enforcement of SPDES.
Director, Division of Environmental Enforcement (DEE)
The Director of DEE represents the General Counsel in matters of Enforcement, and provides guidance and direction to Regional Attorneys in the conduct of SPDES enforcement cases. The Director of DEE has an overall and statewide enforcement perspective, and as such, it is the duty of the Director of DEE to coordinate the enforcement activities of the Regional Attorneys to ensure adequate quality and uniformity in the provision of legal services to the SPDES enforcement program. In addition, the Director of DEE, through the Compliance Counsel, has the responsibility to approve all referrals for enforcement to the Attorney General and EPA and to provide legal guidance to the DOW in the development of its directives.
Dated: Albany, New York
December 13, 1984
Henry G. Williams
New York State Department of Environmental Conservation
1. Communication of DEC's actions will continue to flow through many channels, such as the Division of Water's Water bulletin and other publications, through direct communications with professional water pollution control associations, environmental and business groups, and through press releases coordinated by the Office of Public Affairs. The Division of Environmental Enforcement and the Regional Offices will provide the Office of Public Affairs with information which summarizes SPDES enforcement activity.
2. Environmental control actions are possible under many provisions of New York law. For example, public nuisance actions may be undertaken by the Attorney General or localities. the executive law authorizes certain emergency actions by local officials. Also, private nuisance and civil suits are available to citizens aggrieved by pollution. Section 505 of the Federal Clean water Act specifically authorizes citizens, under certain circumstances, to prosecute an action in Federal Court.
Timely and Appropriate Enforcement Response
EPA and DEC have established the procedures to ensure timely and appropriate enforcement response for significant non-compliance, which are detailed in the Significant Non-Compliance Action Program (SNAP). The basic mechanism for EPA compliance overview is the quarterly Non-Compliance Report (QNCR) provided by DEC in accordance with Federal Regulation and EPA guidance.
As clarification of what constitutes timely response, consistent with the national guidance, by the time a major permittee appears on the QNCR, DEC is expected to have already initiated enforcement action to achieve compliance. Prior to a permittee's appearing on the subsequent QNCR for the same violation, the permittee should either be in compliance or DEC should have taken formal enforcement action to achieve final compliance. In circumstances where formal enforcement action is not taken, DEC is expected to have a written record which clearly justifies why the alternative action was more appropriate.
For those enforcement actions dealing with other than significant non-compliance, DEC shall develop, in cooperation with EPA Region II, an enforcement response guide by March 31, 1985 for incorporation into the State/EPA Enforcement Agreement.
The administering agency should: Screen all Daily Monitoring reports (DMRs) from permittees to determine the level and frequency of any violation, and specifically evaluate instances of non-compliance by major permittees and P.L. 92-500 minor permittees (3) within 30 days from the identification of a violation; determine the appropriate response; and document any action taken / not taken (including the technical reason). The date of identification of the violation is the point at which the organization responsible for compliance/enforcement learns of the violation; an appropriate response is one that results in the violator's returning to compliance as expeditiously as possible. The Region should verify the timeliness and appropriateness of a State's DMR evaluation and its initial responses through periodic audits.
3. This refers to minor P.L. 92-500 facilities as defined in existing Region/State agreements. Other minor permittees should be evaluated as resources permit.
Notice of National Municipal Policy on Publicly-Owned treatment Works
No longer in force. Notice conditions had a sunset date of October, 1988.