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DEE-4: Bulk Storage & Spill Response Enforcement Policy

Commissioner Policy

The DEC Policy System
Department ID: DEE - 4
Program ID: N/A
Issuing Authority: Thomas C. Jorling, Commissioner
Originating Unit: Environmental Enforcement, Compliance Assurance Bureau
Signature: Thomas C. Jorling
Date: 15 March 1991
Issuance Date: 15 March 1991
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. Purpose

This document establishes the policies and procedures governing the Department of Environmental Conservation's (Department) enforcement of New York State's statutes and regulations regulating bulk storage and spills of petroleum and hazardous substances. This memorandum provides general guidance. Each individual case will have its unique aspects and must be evaluated accordingly.

II. Background

This memorandum encompasses violations of the following:

  • Petroleum Bulk Storage Law and regulations (Environmental Conservation Law (ECL) Article 17, Title 10 and 6 NYCRR Parts 612, 613, and 614);
  • Hazardous Substances Bulk Storage Law and regulations (ECL Articles 37 and 40 and 6 NYCRR Parts 595, 596, and 597); and
  • Oil Spill Prevention, Control and Compensation Act (Spill program) (Navigation Law, Article 12; 6 NYCRR Parts 610-611 and 17 NYCRR Parts 30-32).

The Commissioner's responsibilities include: registration of Hazardous substance bulk storage facilities and minor petroleum bulk storage facilities(1) licensing of major petroleum facilities(2) regulation of the storage and handling of petroleum and hazardous substances; regulation of the design and installation of new facilities, or portions thereof; facility closure; and ensuring the cleanup and removal of spills of petroleum and hazardous substances.

The ECL authorizes DEC to investigate all suspected violations of law relating to bulk storage and spills, and to conduct all Routine inspections within the State. The Commissioner has prosecutorial discretion to initiate enforcement for violations of the law.

III. Program Goals

The goal of the bulk storage and spill response program is to prevent the discharge of petroleum and other hazardous substances by requiring certain storage, handling, testing and inspection procedures and to require the licensing and registration of facilities. An additional goal of the program is to provide for a quick response to spills of petroleum and hazardous substances to prevent or minimize injury and damage to public health and the environment.

IV. Enforcement Objectives

The primary objectives of DEC's bulk storage and spill Response enforcement are:

  1. Strict compliance
  2. Swift resolution of environmental or public health problems
  3. Specific and general deterrence by punishment of violators
  4. Fair and equitable treatment of the regulated community by the removal of economic benefits of non-compliance
  5. Restoration of natural resources.

V. Inspections

This section briefly discusses the Department's authority to inspect petroleum and hazardous substance bulk storage facilities and sets out basic procedures to be followed when performing such inspections.

  1. Minor Petroleum Bulk Storage Facilities

    The Department's specific authority to enter and inspect minor petroleum bulk storage facilities is set out in ECL §17-1011. This section provides as follows:

    §17-1011. Access to records and facilities.

    1. Every owner or operator shall, upon reasonable notice of the Commissioner or his designee, permit a duly designated officer or employee of the Department at all reasonable times to have access to and to copy all books, papers, documents and records relating to the daily measurement and inventory of petroleum stored at a facility.
    2. Any duly designated officer or employee of the Department may, at reasonable times and upon reasonable notice of the Commissioner or a designee, enter and inspect any facility, provided that such officer or employee shall be accompanied by the owner or operator or their designee.
  2. Major Petroleum Facilities

    The Department's specific authority to inspect major petroleum facilities is found in Navigation Law §178. This section provides as follows:

    §178. Right to enter and inspect.

    The department is hereby authorized to enter and inspect any premises for the purpose of inspecting facilities and investigating either actual or suspected sources of discharges or violations of this article. The department is further authorized to enter on property or premises in order to assist in the cleanup or removal of the discharge. Any information relating to secret processes or methods of manufacture shall be kept confidential.

    (Note: The use of this section as it applies to access to oil Spill sites is described in a March 17, 1988 memo attached as Appendix B. The discussion herein applies only to compliance or other facility inspections and not to spill response activities).

  3. Hazardous Substance Bulk Storage Facilities

    The Department's authority to inspect hazardous substance Bulk storage facilities is set forth in ECL §40-0109. This section provides:

    §40-0109. Access to records and facilities.

    1. To carry out the purpose of this article [Article 40] and any rule, regulation or order issued thereunder, the department may, at reasonable times:
      1. have the right of entry to or through any storage facility in which a hazardous substance is stored or in which any records are required to be maintained;
      2. have access to and copy any records required to be maintained;
      3. inspect any equipment, practice or method which is required by the provisions of this article; and
      4. have access to and inspect any monitoring stations or conduct tests or take samples to identify any actual or suspected release of a hazardous substance resulting from the operation of the facility, including the right to take split samples.
    2. Any person storing a hazardous substance may be required to furnish the department with information on the storage facility, Repairs or replacements, hazardous substances stored, storage and handling practices, or results of tests, monitoring and inspections.
  4. General Authority

    Pursuant to ECL §3-0301.2.g, the Department has generaL Authority to:

    Enter and inspect any property or premises for the purpose of investigating either actual or suspected sources of pollution or contamination or for the purpose of ascertaining compliance or Noncompliance with any law, rule or regulation which may be promulgated pursuant to this chapter [the ECL]. Any information relating to secret processes or methods of manufacture shall be kept confidential.

  5. General Guidance for Inspections

    Based on the applicable authority cited above, the following should be followed in conducting routine inspections:

    1. The inspector should first attempt to gain consensual entry by presenting him/herself and his/her credentials to the owner or manager of the facility. If the owner or manager consents to the inspection, the inspector may enter and inspect the facility and take samples, unless the owner/manager objects at a certain point thereby withdrawing consent.
    2. If the owner/manager refuses the inspector's request to enter the facility or withdraws consent to the inspection before it is complete, the inspector should return to the Regional Office and inform the Regional Attorney (or the Compliance Counsel in the Central Office, if the Regional Attorney or Assistant RegionaL Attorney is not available), of the refusal/withdrawal.

      The attorney will phone the owner/manager of the facility and inform him/her of the Department's legal authority to inspect the premises. (Inspectors should make a note of the name and position of the individual who refuses entry or withdraws consent. This information will assist the attorney in rectifying the problem.) The attorney will inform the inspector of when he/she can return to the facility.

    3. If the owner/manager refuses to allow the inspector entry despite the attorney's communication or after a failure to make Contact despite reasonable efforts, the attorney will have to obtain an administrative search warrant to gain entry for the inspector. The attorney will prepare affidavits concerning the specific facility with input from the inspector. An Environmental Conservation Officer (ECO) should accompany the inspector while executing a warrant.
    4. A warrant is not required to conduct searches in emergency situations where there is not enough time to obtain a warrant. Also, activities violative of the regulations that the inspector observes in plain view from the public area of a facility are not protected by the Fourth Amendment and can be used as evidence in an enforcement action. These observations should be well documented.

    Inspection and Sampling

    In preparing to conduct an inspection or undertake sampling, staff should have in their possession or be ready to cite the following:

    1. Department of Environmental Conservation Identification Card
    2. Scope and purpose of the investigation.
      1. What you intend to sample/inspect.
      2. How you intend to sample/inspect.
      3. Why you are there.
    3. Statutory authority for sampling/inspection.
    4. Camera or video equipment.

    As a general outline for obtaining access to an facility, staff should:

    1. Show facility representative his/her DEC Identification card.
    2. State the purpose and scope of his/her visit. The purpose should be to determine whether regulated activities are being conducted in compliance with the ECL.
    3. Request access to the facility.
    4. If request is refused, or if requested:
      1. Cite the general statutory authority contained in ECL §3-0301.2.g.
      2. Cite the applicable specific authority from ECL or NL or the appropriate section in the applicable regulations. (Bring photocopies of the applicable law with you.)
    5. If appropriate, request access to the facility again.
    6. If request is refused:
      1. Document the refusor's name and title.
      2. Document what his refusal consisted of.
      3. Do not say anything further and leave.
      4. Immediately contact the appropriate Regional Attorney or Spill Compliance Counsel.
      5. Proceed as directed.

    Once access is obtained to the facility, staff should proceed to Do only that which they set out to do and no more. The only exception to this rule would be if while conducting an inspection or sampling at one location, the inspector has reasonable cause to believe it necessary to investigate another location at the facility for a specified purpose.

    It is extremely important that staff be prepared to state the statutory authority for and purpose of any inspection or sampling conducted at a facility. Such preparation demonstrates the professionalism of the individual and will inevitably contribute to a more efficient and smooth investigation/sampling process.

    When conducting an inspection, one must be prepared to document violations. This includes noting time and location on the premises of each violation. If possible, photograph or tape all visible violations. At the conclusion of the inspection, without indicating that a violation may exist (since that determination should be made later), inquire of the owner/operator about the circumstances surrounding the alleged violation. For example, if evidence of a spill is observed, ask how long the condition has existed. Is it a common occurrence? What caused the spill? Does he know what the spilled material is? Did he report the spill?

VI. Enforcement Methods

The Environmental Conservation Law provides for the assessment of criminal and civil penalties for violations of the laws relating to petroleum and chemical bulk storage and spills. The Navigation Law provides for the assessment of civil penalties for violations of the law relating to major petroleum facilities and oil spills. other sanctions of an injunctive or regulatory nature may be imposed under appropriate circumstances. Except for misdemeanor and felony violations, it is not necessary to show a culpable mental State. Nor is it necessary to prove actual environmental harm.

There is a wide range of enforcement approaches available to the Department for enforcement of the bulk storage and spill response program. These methods can be generally characterized as follows:

  1. Administrative
    • Warning letters
    • Notices of violation/cease and desist notices
    • Uniform appearance notices
    • License revocation
    • Civil penalty
    • Orders on Consent
    • Commissioner's Orders
    • Summary abatement
  2. Judicial
    • Uniform appearance tickets
    • Civil penalty
    • Criminal penalty
    • Injunction

Which approach is used depends on several factors, including the nature and severity of the harm, the importance of the regulation violated to the regulatory program, the responsible party's mental state, the responsible party's past history of Compliance and the type of violation.

Administrative action, through orders on consent and orders after hearing, is the most frequently used means for bulk storage And certain oil spill enforcement actions except as discussed below.(3) Settlement of violations by order on consent must be in accord with the Commissioner's Order on Consent Policy (issued as Enforcement Directive Number I.1, updated 8/27/90). Settlement of violations by orders on consent are useful because the Department can save administrative expenses and expedite resolution of matters, and also because through consent orders the Department can obtain cooperative compliance and admissions, as set forth in the Department's Civil Penalty Policy. While a respondent is not to be threatened with higher penalties for choosing to exercise his right to present a defense to a trial or administrative law judge, penalties assessed after a hearing in which Department staff proves the violation should be substantially higher than those the Department would consider to settle the case without such a hearing.

The use of the criminal and civil judicial processes, however, must be considered in choosing compliance/enforcement strategies. Willful, knowing, intentional or criminally negligent violations, if provable beyond a reasonable doubt, can result in criminal misdemeanor or felony convictions. The regional Chief Environmental Conservation Officer and Regional Attorney must immediately be informed of circumstances which may warrant criminal enforcement action and measures must be taken to prevent compromise of the Criminal case. Where the elements of criminal offenses can be sustained, criminal enforcement by issuance of uniform appearance tickets or summary arrest by Environmental Conservation Officers, or through referral of the matter through the General Counsel to the District Attorney or Attorney General, must be considered. Consultation with the Division of Environmental Enforcement is appropriate to determine the proper vehicle for criminal prosecution.

  1. Administrative Remedies
    1. Warning Letters

      Warning letters are often a useful compliance tool in limited circumstances for dealing with minor violations, such as some paperwork violations. A warning letter(4) is a letter issued by the Department, in response to violations for which it is not likely that further enforcement action would be taken if the respondent Comes into compliance, that advises a respondent that a violation of the Department's laws or regulations has been detected.

      A warning letter should contain the following information:

      • Identification (including time, date and location, if applicable), citation and explanation of the violation and the applicable penalties;
      • A deadline for achieving full compliance with the appropriate statutory or regulatory requirements;
      • A statement indicating that continued noncompliance beyond a certain date will result in the initiation of an enforcement action, including the assessment of civil penalties; and
      • The name and telephone of the Department contact person.

      Warning letters should be sent by certified mail, return receipt requested. They should not be used for repeated, multiple minor, or significant violations.

    2. Summary Abatement

      Summary abatement pursuant to ECL §71-0301 and 6 NYCRR Part 620, should be pursued if the responsible party's conduct must be stopped immediately in order to prevent imminent danger to the public health or welfare or irreversible or irreparable damage to natural resources.

      This remedy is reserved for activities or circumstances that relate to the immediate prevention and abatement of pollution or the threat of pollution.

      Under ECL §71-0301 the Commissioner may order a person to Discontinue, abate or alleviate the proscribed activity. Within 15 days of such order, the person must be given an opportunity for a hearing and has the burden to present proof that the activity does not pose an imminent danger to public health.

      The decision to use summary abatement powers rests with the Regional Attorney, in consultation with the General Counsel or if the Regional Attorney is not available, with the Compliance Counsel. If an inspector believes that a summary abatement order is necessary, he or she should contact the Regional Attorney immediately. The Regional Attorney will prepare the order with findings, and if time permits, affidavits to support such an order. The Commissioner or Executive Deputy Commissioner are the only agency officials authorized to sign a summary abatement order. If they are unavailable the delegated responsibility lies with the Deputy Commissioner and General Counsel. The inspector must articulate the facts and circumstances surrounding the violation and why a summary abatement order is warranted.

    3. Administrative Enforcement Action

      Department staff should afford higher priority to administrative enforcement proceedings for the assessment of civil penalties, and for the imposition of Commissioner's Orders requiring compliance, in the following circumstances:

      1. Where a business or individual persistently engages in willful, bad faith, or negligent conduct that results in a violation.
      2. Where a business or individual gains economic advantage by non-compliance while failing to take responsible steps toward compliance.
      3. Where tangible public health and/or environmental damage is detected, e.g., a tank leaked and contaminated a nearby water supply well due to a party failing to abide by the petroleum bulk storage regulations. (NOTE: Culpability is not a prerequisite to assessment of a penalty.)
      4. Where substantial administrative resources are required to bring a business into compliance with well-defined legal obligations.

      A sample uniform appearance notice for violations of the petroleum bulk storage program is attached as Appendix C. The Civil Penalty Policy correlates penalty levels to the above factors.

    4. License Revocation

      The Department should consider revoking or denying a license of any major petroleum facility which has a history of noncompliance with license conditions and/or noncompliance with a license Condition results or could result in a significant or substantial Degree of environmental harm or injury to the public health or safety. License revocation may be sought in conjunction with other enforcement proceedings.

  2. Judicial Remedies
    1. Civil Sanctions or Criminal Sanctions

      Cases should be considered for referral to the Attorney general's, or District Attorneys', Offices, through the General Counsel, for initiation of either civil or criminal judicial action against the responsible party when:

      1. the responsible party has violated a previous administrative order;
      2. the responsible party has a long history of noncompliance;
      3. the Department has reason to believe that the responsible party will not comply with an administrative order;
      4. there are other judicial cases pending against the same party;
      5. judicial enforcement will assist the Department in notifying the regulated community that the environmental laws must be complied with;
      6. injunctive relief is necessary to prevent environmental harm or to protect public health, or
      7. natural resources have been damaged and restoration is a necessary element of any settlement.
    2. Criminal Sanctions

      Criminal prosecution for violations of the ECL should be considered in situations where one or more of the following factors are present:

      1. the responsible party has violated a previous administrative order and/or the responsible party has a history of Noncompliance;
      2. the violation was the result of serious environmental misconduct and/or resulted in harm to the public health and/or the environment. The Department should review the extent of the environmental harm or human health hazard that resulted from or was threatened by the party's conduct. Factors that should be considered are:
        • duration of the conduct
        • toxicity of the pollutants/contamination
        • quality of the receiving land, air or water
        • amount of State clean-up expenditures;
      3. the party's conduct, if not punished, would have an adverse impact on DEC's regulatory program. This consideration may be important in cases involving material falsification and/or concealment of records, reports or other information that affect our regulatory or decision making processes. The Department should consider the need for deterrence of noncomplying conduct, either on the regulated community at large or by a specific individual. This objective may sometimes justify a referral for criminal prosecution of cases that would have a substantial cumulative impact if commonly committed. This may also be true for cases involving parties with extended records of recalcitrance or Noncompliance;
      4. other cases as may be determined by enforcement staff.

      For misdemeanors and felonies, the Department must be able to prove beyond a reasonable doubt that a violator had one of the culpable mental states. The culpable mental states are: intentionally, knowingly, recklessly, or with criminal negligence. Culpable mental conduct involves a voluntary act or the omission to perform an act which a person is physically capable of performing. It does not encompass acts which are the result of an accident. Some violations may be sustained without proof of a culpable mental State.

      Following are the statutory definitions of the culpable mental states:

      • Intentionally

        A person acts intentionally with respect to a result or conduct described by a statute defining an offense when his conscious objective is to cause such result or to engage in such conduct (Penal Law 15.05(1)). For example, the person knew he was using a leaking tank and the contents would leak into a river nearby.

      • Knowingly

        A person acts knowingly with respect to conduct or to a circumstance described by a statute defining an offense when he is aware that his conduct is of such nature or that such circumstance exists (Penal Law §15.05(2)). For example, the person knew he was using a leaking tank but he did not know exactly where the contents would go when it leaked out.

      • Recklessly

        A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. A person who creates such a risk but is unaware thereof solely by reason of voluntary intoxication also acts recklessly with respect thereto (Penal Law §15.05(3)). For example, the person has an old rusty aboveground tank without a leak detection system with observable stained soil around it. He decides to place materials in it despite employee warnings that the tank may leak. The tank then leaks.

      • Criminal Negligence

        A person acts with criminal negligence with respect to a result or a circumstance described by a statute defining an offense when he fails to perceive a substantial or unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation (Penal Law §15.05(4)). For example, the person has an old rusty aboveground tank with observable stained soil around it. Without checking the tank's integrity, he fills it with a hazardous substance. The tank subsequently leaks.

      How to Prove Mental Culpable States

      Environmental crimes are general intent statutes (United States v. Hayes International Corp., (786 F.2d 1499, 24 ERC i282, 16 envt'l Law Rep. 20,717, 11th Cir., 1986)). This includes water environmental crimes (United States v. Ouelette, 11 Envt'l Law rep. 1350, E.D. Ark. 1977). That means the Department does not have to prove the violator knew or should have known he needed a permit for the storage of a material that was released. Rather it must Show that he had a general awareness he was dealing with a substance that was not benign, like water, and that care was needed in dealing with the material.

      To show this general awareness, any number of items can be utilized. For example:

      1. Contacts with the regulatory agency
        1. permits, licenses or registrations and applications for such; or
        2. letters of inquiry or letters claiming exemptions
      2. Contacts with suppliers
        1. data sheets for chemicals used
        2. labels on chemicals supplied
      3. Contacts with employees
        1. health and safety training and equipment provided
        2. statements or directions giving evidence of knowledge of the substance, regulatory requirements, etc.
      4. Contacts with regulated industry
        1. letters or telephone inquiries to tank testers for estimates or Reports from tank testers
        2. letters or telephone inquiries to plumbers, transporters, etc., about repairing system or removing the materials.
  3. Other Considerations

    The Environmental Conservation Law and Navigation Law provide an array of violations which may be charged against various responsible parties according to the circumstances of a particular case. The following considerations apply in determining who should be charged with what violation.

    1. The ECL and Navigation Law contain a number of multiplier provisions making each day of an act a separate violation under the law. In determining an appropriate penalty, consideration should be given to the nature of violation, e.g., an ongoing spill, and/or the number of days which a spill continued unreported.
    2. Cases involving bulk storage or spill response violations should be carefully examined for potential violations in other program areas. A spill of petroleum engenders the distinct possibility that violation of fish and wildlife, wetlands, water and hazardous waste laws may also have occurred.
    3. The "statute of limitations" for administrative enforcement action is governed by the State Administrative Procedure Act §301 and is a test of reasonableness. The Commissioner may dismiss enforcement actions by staff which are brought an unreasonably long time after detection of the violation. However, the requirement that certain inventory and other records be maintained by facilities for a period of five years does not, as a matter of law, preclude the Department staff from charging an offender with a non-recordkeeping violation that occurred more than five years before. The length of time elapsed since the violation occurred is one of the many factors considered in determining whether to go forward with an enforcement action. It has been determined that the Fund Administrator has 6 years from the Fund's expenditure of money to commence an action to recover those moneys.
    4. Cases involving violations of the Navigation Law or for collection of moneys expended by the State for spill clean-up may result in judicial pretrial activities such as discovery and examinations before trial (EBTs), or a trial. As a consequence, it is imperative that every investigation of a spill or of a facility be conducted with that eventuality in mind. Bulk storage and spill response violations often involve complex technical data and require experienced professional judgment for proper and effective enforcement or collection. Every case must, therefore, be documented and developed in such a manner as to provide A substantial basis for establishing the facts and violations involved in the case. Additionally, the procedures followed in developing the case must be adequately documented or capable of substantiation so as to connect all the various pieces of the puzzle.

VII. Priorities

When a bulk storage or spill response violation has been identified, it is crucial to the integrity of the program that the violation be resolved quickly. For the purposes of this policy, the term "resolved" means that the violation has been dealt with by an order, suspension or revocation of a permit or license And the non-compliance has been abated. The greater the risk to health and the environment presented by an alleged violation, thE higher the priority for response. Violations of an emergency nature should be expeditiously addressed.

Potential violations are prioritized below in a three-tiered system. This list is illustrative; other violations not identified may fall into these categories. In addition, penalty levels are not dictated by the level of priority indicated here. Rather, a case by case determination must be made.

  1. Highest Priority Violation - Tier #1

    - Violations to be resolved expeditiously -

    1. Violations which are of an emergency nature.
    2. Failure by a responsible party to mitigate a release which results in actual or potential personal injury or significant or potentially significant environmental harm.
    3. Non-reporting or significant delay in reporting of a significant Spill or leak of petroleum or a hazardous substance.
    4. Failure to comply with petroleum bulk storage regulations (6 NYCRR Parts 612-614) or conditions of a major facility license which could result in, or does result in, short or long term personal injury or significant environmental harm.
    5. Tier 2 violations where responsible party received a warning letter or was subject to prior enforcement for a similar violation.
  2. High Priority Violations - Tier #2

    - Resolve as soon as practicable -

    1. Non-reporting of a spill or leak of petroleum or other hazardous substance.
    2. Failure to pay monthly license fees or file monthly license reports.
    3. Failure to comply with inspection/monitoring/equipment requirements set forth in 6 NYCRR Parts 612-614.
    4. Tier 3 violations where responsible party was subject to prior enforcement for a similar violation.
  3. Secondary Priority Violations - Tier #3

    - Resolve as soon as practicable -

    1. Failure to register a minor facility or obtain a license for a major facility.
    2. All other record keeping violations.
    3. Failure to come into compliance after a warning letter.
    4. All other violations.

VIII. Special Provisions Relating to Navigation Law Cases

Under the provisions of Article 12 of the Navigation Law, the Department of Audit and Control (DAC) has the obligation to recover moneys disbursed from the New York Environmental Protection and Spill Compensation Fund (oil spill fund) for clean-up and removal of spills and damages paid to third parties. In general, penalties for violations of the Navigation Law are obtained through a judicial proceeding. There are certain types of violations for which the Commissioner can without question take administrative enforcement actions, including failure to file monthly reports or failure to pay monthly license fees (see section VII.B). Additionally, DEC can revoke a major facility license for violations after an administrative hearing. The Oil Spill Fund may also expend money for natural resource damage assessments. In such cases consideration of a referral to the Attorney General may be appropriate.

  1. Procedures for Review and Processing of Recommendations for Penalties for Violations of Article 12 of the Navigation Law

    This section establishes procedures for review and processing of recommendations for penalties for violations of Article 12 of the navigation Law or the Environmental Conservation Law (ECL) which are referred to the Attorney General's office. Other violations can be pursued through DEC's administrative enforcement process, if they are not referred through DAC for inclusion with the action seeking recovery of cleanup costs.

    When oil spill funds have been expended, a recommendation must be made before or simultaneous with the transmittal of the investigative Summary Report (ISR) by the Region to the Central office. The recommendations are to be jointly signed by the regional Water Engineer (RWE) or the Regional Spill Engineer and the Regional Attorney. The Regional Attorney is to review the spill Event and the case history to ensure that the recommendation is appropriate as to the penalty and that there is adequate documentation of the case. Additionally, the Regional Attorney is to consider administrative enforcement action for the violations identified. The Department should consider pursuing cases solely under the ECL where there is no comparable Navigation Law case. When the deterrence of large fines is appropriate, the Navigation Law violations should also be considered, as they may provide for additional penalties.

    Penalties for the same violations should not normally be pursued twice, (e.g. non-notification under both the Navigation Law and the eCL). However, this does not preclude an administrative action for Different violations not part of a referral. A respondent can agree to reimburse the Fund for moneys expended during an administrative Action for violations of the ECL or the NL. Such moneys are payable to the Oil Spill Fund, while the ECL penalties are not. Oil spill Situations which involve long-term cleanup and remediation should be referred as early in the process as possible so that liability of the spiller can be established and payment of past and future Cleanup expenses become the spiller's obligation.

    The Regional Attorney is to assign a case number, and enter the Case data into the Environmental Enforcement Data System (EEDS)(5) only if penalties are recommended. The Investigative Summary Report (ISR) with appropriate documentation is to be forwarded to the Bureau of spill Response. The Bureau reviews the submittal and forwards it to the Compliance Counsel for the Oil Spill Response Program for approval and preparation of a transmittal letter and a complete referral package, including personnel cost summaries, to DAC from the General Counsel.

    In cases where the RWE or Spill Engineer and Regional Attorney concur that no penalty is recommended, the Investigative Summary report shall be forwarded by the Bureau of Spill Response to DAC.

    DAC reviews the paperwork and referral for completeness and adequacy, totals all expended State funds, prepares the costs statement, narrative of events and a demand letter for referral to the Attorney General for appropriate action, which may include initiation of a court action to recoup funds expended and/or penalties.

  2. Failure to Pay License Fees

    Pursuant to §174 of the Navigation Law, all major facilities must pay a monthly license fee and surcharge which is based on the number of barrels of petroleum received by the facility. The facility must also file monthly reports documenting the amount of petroleum received, even if such amount is zero. Failure to submit such report and/or pay such fees Indoor surcharge is punishable by a penalty of up to $25,000 per day as well as an additional penalty of up to two times the facility's annual license fee or surcharge, as well as interest.

    Monthly license fees and reports are sent by the facilities to the Regulatory Fee and Oil Spill Revenue Bureau in the Division of Fiscal Management. Therefore, potential violations are first identified by this Bureau. After attempting to collect overdue reports and/or fees and surcharges through demand letters, all violations are referred to the Compliance Counsel for the Spill prevention and Response Program. Attempts will be made, prior to the commencement of a formal administrative action, to collect the overdue fees and/or reports with interest by the Compliance Counsel. If these attempts prove fruitless, referral packages, with appropriate documentation, will be prepared and transmitted to the Regional Attorney for commencement of an administrative proceeding.

IX. Cases Involving Significant Environmental Damage and/or public Health Impacts

DEC frequently encounters spill situations which pose A significant threat to the environment and/or public health. These Cases often require long-term remediation as well as provision of alternative water supplies or carbon filter treatment systems due to groundwater contamination. Additionally, venting of homes or Relocation of individuals due to dangerous levels of gasoline vapors may be involved. In the past, we have often waited until the spill has been completely remediated before referring the case for legal action to recover costs and/or penalties. Cases which present a significant threat to the environment and/or public health and safety may be appropriate for summary abatement, other administrative action, or a referral to the Attorney General for an action seeking to require a responsible party to take the necessary steps to remediate the spill site and provide alternative sources of water, etc. Spill Response personnel should refer potential Significant spills to the Division of Law Enforcement for investigation into criminal liability. The Spill Response Compliance Counsel, in the Division of Environmental Enforcement, should be notified as soon as possible of the following types of Cases:

  1. Significant potential/actual harm to public health (many houses being provided filters, alternate water or being vented);
  2. Potential/actual significant environmental harm (e.g. large fish kills, etc.);
  3. Any case involving potential or actual relocation of residents to (either temporary or permanent).

X. Conclusion

Effective enforcement against violators of the petroleum bulk storage and spill response law is crucial to the overall petroleum bulk storage and spill response regulatory programs. Firm, fair and efficient enforcement protects the health and well being of our people and our environment.

New York State
Department of Environmental Conservation

Thomas C. Jorling
Commissioner

DATED: Albany, New York
March 15, 1991

1. A minor petroleum bulk storage facility is one which has a combined storage capacity of over 1,100 but less than 400,000 gallons. (ECL §17-1003)

2. A major petroleum facility is one which has a combined storage capacity of 400,000 gallons or more. (Navigation Law §172.11)

3. See Section VIII for discussion of oil spill Enforcement under the Navigation Law.

4. A "Letter of Responsibility" used in the Spill Response Program to notify potential responsible parties of their obligation is similar to, but is not, a warning letter.

5. Effective January 1, 1999, the Visual Inspection system for Tracking and Analysis (VISTA) superceded EEDS for this task.

Appendix A
Applicable Laws and Regulations

  1. A. Requirements Applicable to Minor petroleum Bulk Storage Facilities
    Requirements Applicable to Minor petroleum Bulk Storage Facilities
    Requirement Maximum Penalty
    Registration of facilities (required by 12/27/86 for existing facilities) ECL §17-1009 AND 6 NYCRR §612.2

    Requirement for color coding and installation of valves, gauges and secondary containment systems required by 12/27/90) ECL §17-0303 and 6 NYCRR §613.3

    Inventory monitoring for underground tanks and reporting of inventory losses. 6 NYCRR §613.4; ECL §17-0303; §17-1005 and NYCRR §613.5

    Inspections of aboveground tanks and maintenance of inspection reports. ECL §17-0303; §17-1005 and 6 NYCRR §613.6

    Closure of tanks. ECL §17-1005 and 6 NYCRR §613.9

    Standards for new and substantially modified facilities. ECL §17-1015 and 6 NYCRR Part 614

    Release reporting. (See Appendix A, Sec. D)
    Civil penalty of up to $25,000 per day of violation. ECL §71-1929

    Criminal penalty of up to $25,000 per day of violation and/or up to one year imprisonment for first offense. Second offense punishable by penalty of up to $50,000 per day of violation and/or Up to 2 years imprisonment. ECL §71-1933

    Injunctive relief. ECL §71-1931

    Summary abatement. ECL §71-0301
  2. B. Requirements Applicable to Major Petroleum facilities
    Requirements Applicable to Major Petroleum facilities
    Requirement Penalty
    Requirement to obtain license. NL §174 and 17 NYCRR §30.3 Civil penalty of $25,000 per day of I violation (NL §192) (must be assessed in court of competent jurisdiction).
    Failure to comply with license conditions. NL §174 and 17 NYCRR §30.6 Civil penalty of $25,000 per day of violation (NL §192)(must be assessed in court of competent jurisdiction).

    License revocation. 17 NYCRR §30.10
    Failure to submit monthly license reports and/or pay monthly License fees and surcharge. NL §174 and 17 NYCRR §§30.8, 30.9 Civil penalty of $25,000 per day of violation (NL §192)(must be assessed in court of competent jurisdiction).

    License revocation. 17 NYCRR §30.10

    Fine of up to two times the licensee's annual license fee. NL §174 and 17 NYCRR §30.10
  3. C. Requirements for Hazardous Substance Bulk Storage
    Requirements for Hazardous Substance Bulk Storage
    Requirement Penalty
    Registration of facilities (required by 7/15/89). ECL §40-0107 and 6 NYCRR §596.2

    Provision of technical guidance and recommended practices (effective 7/15/89) ECL §40-0115 and 6 NYCRR §596.5(a)

    Corrective action in response to release. ECL §40-0113 and 6 NYCRR §595.2(c)

    Release reporting. (see Appendix A, Sec. F)
    Civil penalty of up to $25,000 per day of violation. ECL §71-4303

    Criminal penalty of up to $25,000 per day of violation and/or imprisonment of up to one year for offenses.

    Second offense punishable by penalty of up to $50,000 per day of violation and/or up to two years imprisonment. ECL §71-4303

    Summary abatement. ECL §71-0301
  4. D. Release Reporting and Remediation - petroleum
    Release Reporting and Remediation - Petroleum
    Requirement Penalty
    Requirement to Report Spill or Leak of Petroleum

    NL §175 and 17 NYCRR §32.3 Applicable to all spills and releases of petroleum.
    Civil penalty of up to $25,000 per day of violation (must be assessed through court of competent jurisdiction). NL §192
    Requirement to Report Spill or Leak of Petroleum

    6 NYCRR §613.8 Applicable to spills/leaks from minor petroleum bulk storage facilities.
    Civil penalty of up to $25,000 per day of violation. ECL §71-1929

    Criminal penalties of up to $25,000 per day of violation and/or Up to one year imprisonment for first offense. ECL §71-1933
    Requirement to Report Spill or Leak of Petroleum

    ECL §17 - 1743
    applicable to persons having actual or constructive possession of 1100 gallons or more of petroleum (in liquid form).
    Civil penalty of up to $2,500 plus $500 per day violation continues, plus costs of remediation. ECL §71-1941

    Criminal penalty of up to $2,500 and/or up to one year imprisonment. ECL §71 - 1943
  5. E. Remediation
    Remediation
    Requirement Penalty
    NL §176 AND 17 NYCRR §30.5 Requires responsible party to contain and remove discharge. Civil penalty of up to $25,000 per day of violation (must be assessed in court of competent jurisdiction). NL §192
  6. F. Release Reporting - Hazardous Substances
    Release Reporting - Hazardous Substances
    Requirement Penalty
    1. Any Person
      • who owns, or
      • who is in actual or constructive possession or control of a listed hazardous substance; or
    2. Any person in a contractual relationship with any of the above who tests, inspects or repairs any portion of a hazardous substance storage facility.

    Must report release of a reportable quantity or unknown quantity (see Part 592) of a hazardous substance within 2 hours.

    (ECL §40-0111 and 6 NYCRR §595.2)

    Owner or operator must report suspected or probable spill to DEC within 24 hours of discovery of certain conditions. (ECL §40-0113 and 6 NYCRR §595.2(b)
    Civil penalty of up to $25,000 per day of violation. (ECL §71-4303)

    Criminal penalty of up to $25,000 per day of violation and/or up to one year imprisonment for first offense.

    Second offense - $50,000 per day of violation and/or up to 2 years imprisonment. (ECL: §71-0301)

    Summary abatement. (ECL §71-0301)
    Any person having actual or constructive possession of 1,100 gallons plus a liquid likely to pollute must immediately report any release. (ECL §17-1743) Civil penalty of up to $2,500 plus $500 per day violation continues; plus costs of remediation (ECL §71-1941)

    Criminal penalty of up to $2,500 and/or one year imprisonment. (ECL §71-1943)
  7. G. Remediation - Hazardous Substances spills
    Remediation - Hazardous Substances spills
    Requirement Penalty
    Requirement to take emergency response actions in response to a release. (ECL §§37-0105 and 40-0113 and 6 NYCRR §595.2(c))

    Requirement to investigate release. (ECL §§37-0105 and 40-0113 and 6 NYCRR §595.2(d))

    Requirement to take corrective action. (ECL §§37-0105 and 40-0113 6 NYCRR §595.2(e))
    Civil penalty of up to $25,000 per day of violation. (ECL §71-4303)

    Criminal penalty of up to $25,000 per day of violation and/or up to one year imprisonment for first offense.

    Second offense - $50,000 per day of violation and/or up to 2 years imprisonment. (ECL §71-0301)

    Summary abatement. (ECL §71-0301)
  8. H. Criminal Offenses Relating to the Release of Hazardous and Acutely Hazardous Substances

    In 1986, a series of new provisions were enacted dealing with the release to the environment of hazardous and acutely hazardous substances (also referred to as substances hazardous to the public health, safety or the environment and substances acutely hazardous to the public health, safety or the environment, respectively). These offenses are set forth in ECL Article 71, Title 27 and are summarized below.

    The criteria for, and definitions of, hazardous and acutely hazardous substances appears in ECL §37-0103. The list of hazardous and acutely hazardous substances appears in 6 NYCRR Part 597. Petroleum, and hazardous wastes that are identified or listed in 6 NYCRR Part 371, are included on this list as hazardous substances.

    Endangering Public Health, Safety or the Environment

    1. A person is guilty of endangering public health, safety or the environment in the fifth degree when such person:
      • with criminal negligence engages in conduct which causes the release to the environment of more than 5 gallons or 50 pounds (whichever is less) of an aggregate weight or volume of a hazardous substance.

      This is a class B misdemeanor (ECL §71-2710).

    2. A person is guilty of endangering public health, safety or the environment in the 4th degree when such person:
      • with criminal negligence, engages in conduct which causes the release to the environment of an acutely hazardous substance; or
      • with criminal negligence, engages in conduct which causes the release to the environment of more than 100 gallons or 1,000 pounds (whichever is less), of an aggregate weight or volume of a hazardous substance; or
      • knowingly or recklessly, engages in conduct which causes the release to the environment of a hazardous substance.

      This is a class A misdemeanor (ECL §71-2711).

    3. A person is guilty of endangering public health, safety or the environment in the 3rd degree when such person:
      • recklessly engages in conduct which causes the release to the environment of an acutely hazardous substance; or
      • recklessly engages in conduct which causes the release to the environment of more than 200 gallons or 2,000 pounds (whichever is less) of an aggregate weight or volume of a hazardous substance; or
      • recklessly engages in conduct which causes the release to the environment of more than 100 gallons or 1,000 pounds (whichever is less) of an aggregate weight or volume of a hazardous substance and such release creates a substantial risk of physical injury to any person who is not a participant in the crime; or
      • knowingly engages in conduct which causes the release to the environment of more than 100 gallons or 1,000 pounds (whichever is less) of an aggregate weight or volume of a hazardous substance.

      This is a class E felony (ECL §71-2712).

    4. A person is guilty of endangering public health, safety or the environment in the 2nd degree when such person:
      • knowingly engages in conduct which causes the release to the environment of a hazardous substance and the release Causes physical injury to any person who is not a participant in the crime; or
      • knowingly engages in conduct which causes the release to the environment of a acutely hazardous substance or of A substance which at the time of conduct the person knew met the Criteria for a hazardous substance in ECL §37-0103(1)(b); or
      • knowingly engages in conduct which causes the release to the environment of more than 1,500 gallons or 15,000 pounds (whichever is less) of an aggregate weight or volume of a hazardous substance; or
      • recklessly engages in conduct which causes the release to the environment of an acutely hazardous substance and the release causes physical injury to any person who is not a Participant in the crime; or
      • knowingly engages in conduct which causes the release to the environment of more than 100 gallons or 1,000 pounds (whichever is less) of an aggregate weight or volume of a hazardous substance and the substance enters water; or
      • knowingly or recklessly engages in conduct which causes the release to the environment of a hazardous substance and such substance enters a Primary water supply.

      This is a class D felony (ECL §71-2713).

    5. A person is guilty of endangering public health, safety or the environment in the 1st degree when such person:
      • intentionally engages in conduct which causes the release to the environment of:
        • an acutely hazardous substance, or
        • a substance which at the time of conduct the person knew met any of the criteria of a hazardous substance in ECL §37-0103(1)(b), when he is aware that such conduct creates a substantial risk of serious physical injury to any person who is not a participant in the crime; or
      • knowingly engages in conduct which causes the release of:
        • an acutely hazardous substance, or
        • a substance which at the time of conduct the person knew met the Criteria in ECL §37-0103(1)(b) and such release causes physical injury to any person who is not a participant in the crime.

      This is a class C felony (ECL §71-2714).

Definitions of terms used in these sections can be found in ECL §71-2702.

Appendix B

New York State Department of Environmental Conservation

M E M O R A N D U M

To: Distribution
From: Shari Greenberg Chrimes and Marc Gerstman, Division of Legal Affairs
Subject: Access to Property

DATE: March 17, 1988

This memorandum addresses the right of the Department to enter property on which a spill is suspected to be occurring or has occurred for purposes of investigating, containing and/or removing such spill.

Under §178 of the Navigation Law the Department has the right to enter property to investigate an actual or suspected spill or to clean up and remove a spill. It is not necessary to obtain the property owner's consent to enter his property when entry is sought under §178. However, obtaining consent may help avoid potential criminal or civil charges (e.g., trespass) being lodged.

Therefore, it is recommended that consent be routinely sought in all cases. Of course, in situations where the owner or agent is unavailable, as in late night responses, or cases where the owner cannot be ascertained, entry should be made without consent.

While not required by law, it is preferable that you obtain the property owner's or authorized agent's express written consent to enter the property and to perform the necessary inspection, sampling, and/or emergency response activities. When you arrive at a spill site, you should advise the owner or his or her agent who you are, why you are there and that you have a right pursuant to law to go on to their property to investigate an actual or suspected spill and to clean up and remove such spill (Navigation Law §178). If possible, obtain the property owner's signature on the attached consent to access form. verbal consent is only acceptable if the person declines to sign the form under any circumstances. In such a case you should make a contemporaneous entry in' your field notes that recites the Circumstances surrounding the verbal consent, including the identity and description of the person giving consent and the precise time and place of the transaction and a verbatim (to the extent practicable) reporting of the conversation. If at all possible, a third party should witness a verbal consent and sign your field notes.

In cases where the property owner or agent denies you access to the property, the measures to be taken depend on whether an emergency situation exists. In all cases, (emergency and Non-emergency) you must have possession of information supporting a reasonable belief to suspect that a spill has occurred or is occurring, or that the effects of a spill (i.e., plume or product movement) are occurring on the premises for which access is sought. A reasonable belief may be based on a report of a spill or visual observation.

  1. Emergency Situations

    For the purposes of this memorandum, an emergency means A situation immediately threatening to the public health or safety and/or the environment. Immediately threatening means that action Must be taken at that time in order to avoid or prevent the harm from occurring or to mitigate adverse public health impacts. If the action you are seeking to undertake could be deferred long enough to allow you to obtain a court order with no harm to the public health or the environment, then it may not be an emergency for purposes of this memorandum. A reasonable belief that an Emergency may exist, due to a report of a spill, or the need to ascertain scope and severity of a reported spill is sufficient to justify immediate entry. If you have any doubts as have an emergency situation, please confer with your Regional Attorney.

    Example of an emergency:

    Situations where immediate action (deployment of booms) is necessary to prevent petroleum spill from entering ground or surface waters or action must be taken due to free product being present in sewer lines causing a potential explosive situation or health hazard due to vapors in homes.

    If an emergency exists and the property owner denies you access to the site, the following courses of action should be considered. The steps taken, or the order in which they are taken are dependent on your evaluation of the situation (i.e.(a) not have to precede (b)).

    1. Notify your regional ECOs and request their assistance. Ask them to accompany you to again ask consent of the owner. Often, the presence of a uniformed ECO, combined with an explanation of the statutory authority under the Navigation Law will be sufficient to gain consensual access to a spill site. Consideration should be given to requesting the assistance of other uniformed personnel Such as state police, sheriffs or fire marshals.

      ECOs have the authority to arrest a person for obstruction of governmental administration pursuant to Ssection 195.05 of the Penal Law. A person obstructs governmental administration when he intentionally obstructs, impairs or perverts the administration of law or other governmental function or prevents or attempts to prevent a public employee from performing an official function by means of intimidation, physical force, or interference or by means of any independently unlawful act. (Interference means physical interference, not verbal). As this is a drastic remedy, it Should be reserved for use in emergency situations only, and you should defer to the ECO's discretion as to whether or not the situation warrants an arrest. If access is not obstructed, yet the owner or agent verbally denies access, you enter the property accompanied by the ECO.

    2. Request your Regional Attorney or if unavailable, another Department attorney (Shari Greenberg Chrimes), to call the owner, his or her agent or attorney, and advise him of our legal rights with respect to access to spill sites pursuant to §178 of the "Navigation Law."
    3. If all else fails, the matter should be referred immediately (by telephone or radio) to your Regional Attorney for consideration of all options, including court-ordered access. This is discussed more fully below.

      ** The right to access in emergency situations is limited in time and scope to only those actions immediately necessary to contain or control the emergency. Long-term measures, such as remediation, long-term recovery wells, etc. would require either a court order or consent by the property owner.

      IN NO CASE SHOULD YOU RISK PHYSICAL INJURY TO YOURSELf OR OTHERS IN TRYING TO GAIN ENTRY TO A SPILL SITE.

  2. Non-emergency Situations.

    In non-emergency situations where you have been denied access to property, you should request your Regional Attorney to call the owner and advise him of our legal rights with respect to access to Spill sites. If this is unsuccessful, then the Regional Attorney should be requested to follow up with an action for a court order.

  3. Court Orders.

    In both emergency and non-emergency situations where access has been denied and the procedures outlined above have not worked, it will be necessary to get a court order to obtain access to the site And implement remediation. Your Regional Attorney through Central office and the Attorney General's Office will make every effort to get such an order. The Department's request for judicial intervention will be based on an affidavit from a regional spill Engineer, regional water engineer or other technical person outlining how the person knows or suspects that a spill has occurred (describe in detail the circumstances leading up to the request and the emergency and/or the requirement for action) and the fact that the owner has refused DEC access to the property and the relief sought (i.e. inspection, testing, monitoring wells, recovery wells, etc.). A court may limit the relief requested where the Department only suspects a spill has occurred. A subsequent request for a court order may be required for long-term remediation.

    The following procedure is to be followed when a court order is needed to get access to property:

    1. Discuss with your Regional Attorney's Office. The RegionaL Attorney must concur that all other avenues have been exhausted and that a court order is necessary and that sufficient information and facts exist on which to base a request for such an order.
    2. The Regional Attorney is to contact the Division of LegaL Affairs, (Shari Greenberg Chrimes) for a referral to the Attorney general's Office. In emergency situations where time is of the essence, direct contact by the Regional Attorney with the Attorney general should be made with subsequent coordination with DLA. This is to be followed up by a letter from the General Counsel Requesting the help of the Attorney General. Contact will be made As soon as possible with the Attorney General. The Attorney General will either make the motion for the court order or deputize the Regional Attorney or other Department attorney enabling him or her to appear in court and request the order on behalf of the Department.

    The initial relief to be sought is a preliminary injunction Enjoining the property owner from denying the Department access to the property. It is brought on by an order to Show Cause. Alternatively, we could seek an administrative warrant in appropriate cases.

    Trespass

    The following is a brief discussion of what constitutes criminal "trespass."

    Under Section 140.05 of the Penal Law, a person is guilty of trespass when he "knowingly enters or remains unlawfully" in or Upon premises. Premises includes both buildings and land. Trespass is a violation. There are also varying degrees of criminal trespass which range from Class A misdemeanors to Class D felonies and depend on the type of premises entered and whether the party possessed a weapon.

    A person enters or remains unlawfully when he does not have license or privilege to have entered the property or he remains there without license or privilege. In other words, the owner does not consent to allow you to enter or remain on his premises and communicates the lack of consent to you, and you have no independent legal basis for being on the property (i.e., NL §178).

    Credible evidence of consent will defeat any claim of criminal Trespass. Consent can take various forms. It can be explicit, as in a signed consent form or express verbal consent. It can also be implicit as in the owner understanding who you are and what your job is, who without verbally saying yes when asked for consent, instead says nothing and allows you to enter his property. Consent can also be implied from the circumstances surrounding a given case.

    It should be noted that a person who enters and remains upon unimproved and apparently unused land, that is neither fenced nor enclosed in a manner to exclude intruders, does so lawfully, unless notice against trespassers is personally communicated to the person by the owner, or unless notice is conspicuously posted.

    Certain defenses are available to a public employee who is charged with the commission of a crime, as in criminal trespass. Conduct which otherwise may constitute an offense is justifiable And therefore, not criminal when it is required and authorized by Law or when it is performed by a public servant in the reasonable exercise of official powers, duties or functions. The defense is formally entitled "justification" and is found in Section 35.05 of the Penal Law.

    What To Do if Criminal Charges are Lodged

    If criminal charges such as trespass or criminal mischief are lodged against you due to the performance of your duties, immediately notify your Regional Director and Regional Attorney. your Regional Attorney will advise you on composing the appropriate letter to the Attorney General so that you are reimbursed for legal Expenses should that become necessary.

    The Regional Attorney should immediately look into the facts and the circumstances surrounding the complaint and call the local District Attorney. The purpose of this call, in appropriate Circumstances, is to advise the DA of our statutory authority under the Navigation Law and the defenses available under the Penal Law. The theory behind this is that even if an entry to property occurred, your entry was justified under §35.05 of the Penal Law. Regional Attorneys should call Shari Greenberg chrimes (DLA) to notify Central Office of the situation and if they need more guidance in this area and to pursue further Departmental Support. Such support can take the form of follow-up calls from the Director of the Division of Legal Affairs or the General Counsel; a letter to the DA explaining the Department's authority in these Circumstances; a letter from the Commissioner in appropriate Circumstances; and consultation with privately retained counsel.

Distribution:

Division Directors
Regional Directors
Regional Attorneys
Regional Engineers
Regional Water Engineers
Regional Oil Spill Engineers
SGC/JLB

Sample Letter of Consent to Enter Property

Spill #

Dear __________:

The Department of Environmental Conservation is investigating and/or remediating a petroleum spill which has occurred on or near your premises.

Pursuant to Section 178 of the Navigation Law, the Department and its contractors are authorized to enter onto property for these purposes. A copy of section 178 is enclosed for your information.

The Department would prefer to act in cooperation with private parties. Therefore, it is requested that you sign this form acknowledging and consenting to the Department's right of entry onto your property.

(For non-spiller property)

If you believe that your property has been damaged as a result of the Department's activities, and it has not been corrected by the time these activities are completed, you have a right to file a claim. Please feel free to direct any questions you may have on this matter to me at #__________.

Very truly yours,

_______________________

Enclosure

Signature ________________

Print Name ______________________ Date __________________

Navigation Law

§178. Right to enter and inspect

The Department is hereby authorized to enter and inspect any property or premises for the purpose of inspecting facilities and investigating either actual or suspected sources of discharges or violation of this article or any rule or regulation promulgated pursuant to this Article. The Department is further authorized to enter on property or premises in order to assist in the cleanup or removal of the discharge. Any information relating to secret processes or methods of manufacture shall be kept confidential.

Appendix C

Sample UAN

Notice of Hearing and Complaint

Case No.

Issued To:

Respondent.

PLEASE TAKE NOTICE THAT a public hearing shall be held before an Administrative Law Judge designated by the Commissioner of Environmental Conservation of the State of New York on _____, 20__ , at _____a.m., at the New York State Department of Environmental Conservation (the Department), Region __________ to consider violations of Article 17 of the Environmental Conservation Law (ECL) and the regulations issued thereunder which you are alleged to have committed.

The public hearing concerning this matter shall be held under and pursuant to Article 3 of the State Administrative Procedure Act, ECL Articles 17 and 71, and Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York (6 NYCRR) Parts 612, 613 and 622.

The Department asserts and charges that on __________, 20__, at__________ in the __________ of __________, __________ County, New York, you __________ contrary to and in violation of the provisions or ECL section __________ and 6 NYCRR Section __________. The Department further asserts and charges that on __________, 19__, at __________, in the __________ of __________, __________ County, New York, you __________ contrary to and in violation of the provisions of ECL Section __________ and 6 NYCRr section __________.

ECL Section 71-1929(1) provides that any person who violates any provision of ECL Article 17 or any regulation issued thereunder, or commits any offense described in ECL Section __________, shall be liable for a civil penalty not to exceed $10,000 per day of violation, to be assessed by the Commissioner after a hearing or opportunity to be heard.

PLEASE BE ADVISED that pursuant to 6 NYCRR Section 622.5 an answer is required within 20 days of receipt or this Complaint, but no later than 5 days before the date of the hearing, whichever is shorter.

PLEASE TAKE FURTHER NOTICE THAT IF YOU FAIL TO ANSWER AND IF YOU FAIL TO APPEAR, on the date and time indicated the hearing in this matter may occur in your absence and/or a determination upon your default may be issued against you and an order may be issued (1) directing that you pay such penalties as may be provided by law; (2) directing that you undertake such actions as may be authorized by law; and (3) enjoining you from continuing any activity relating to the subject of this notice which is proscribed by law.

PLEASE TAKE FURTHER NOTICE that you may appear at the hearing in person or by representative, with or without Counsel, that all witnesses will testify under oath, that a record of the proceeding will be made, that you may produce witnesses and evidence in your behalf, that you may request issuance of subpoenas to compel attendance of witnesses and production of records relating to this matter, and that you may cross-examine witnesses and examine evidence produced against you.

Interpreter services shall be made available to deaf persons, at no charge, pursuant to 301 of the State Administrative Procedure Act. Requests for interpreter services should be made within a reasonable time before the date of the hearing.

IF YOU WISH TO DISCUSS SETTLEMENT OF YOUR LIABILITY FOR THE ALLEGED VIOLATION, at least one week prior to the hearing date call or write ___________________, Regional Attorney, New York State Department of Environmental Conservation, Region _____ , New York, Telephone ( ) ___________.

_____________________________________
(Type name and title)

DATE: __________________, 20____

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