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DEE-1: Civil Penalty Policy

Commissioner Policy

The DEC Policy System
Department ID: DEE - 1
Program ID: N/A
Issuing Authority: Thomas C. Jorling, Commissioner
Originating Unit: Environmental Enforcement, Compliance Assurance Bureau
Signature: Thomas C. Jorling
Date: 20 June 1990
Issuance Date: 20 June 1990
Latest Review Date (Office Use):

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

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

I. Introduction

This Enforcement Directive establishes the Department's policy and guidance for developing penalties for violations of the Environmental Conservation Law (ECL) and the Department's regulations. 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 and to change them at any time without public notice. Administrative Law Judges and prosecuting representatives of the Department of Environmental Conservation (DEC) should consider this guidance in recommending penalty terms for all orders executed by or for the Commissioner of Environmental Conservation.

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

Program specific penalty policies that are developed shall be consistent with the framework established in this directive.

II. Penalty Policy Purposes

The Commissioner's "Enforcement Philosophy" was most recently issued on December 11, 1984. The same approach enunciated there has been repeated in each subsequent Enforcement Guidance Memorandum: punish the violator and deter future violations.

The primary purpose of the policy is to articulate the Department's policies for assessing and collecting penalties in a manner that will assist DEC in efficiently and fairly deterring and punishing violations and to provide the public with an understanding of Department policy in this area. This policy is intended to send a message to regulated entities that DEC has the will and capability to obtain penalties which are sufficiently high to deter violations by individuals, companies and public agencies.

The second purpose of this policy is to establish a systematic, statewide approach to assessing penalties. This policy is applicable to all administrative enforcement actions, whether adjudicated or settled by consent orders, civil compromise or stipulation. It is also applicable to civil enforcement referrals to the Department of Law.

This guidance provides a process for determining appropriate penalty amounts in cases which end in negotiated settlement, as well as cases which end in an order after adjudication. However, Respondents must be given effective incentives to enter into voluntary settlement of their disputes with DEC. Accordingly, the penalty amounts calculated with the aid of this guidance in adjudicated cases must, on average and consistent with consideration of fairness, be significantly higher than the penalty amounts which DEC accepts in orders which are entered into voluntarily by respondents.

The above does not mean that a respondent is to be penalized for exercising the right to a hearing. The variation in penalty amounts to be assessed after hearing as compared to penalties assessed in negotiated settlements is not a sanction against those who go to a hearing; it is a benefit and incentive offered to those who voluntarily agree to undertake a binding obligation to achieve compliance. In general, actual compliance is far more likely to occur, and to occur more quickly, when undertaken voluntarily than when imposed by compulsion against a resistant party. Thus, in general, settlements achieve greater and more timely environmental protection than adjudication. Care must be taken, however, to avoid accepting a penalty which is too low to provide effective general and specific deterrence, or to adequately punish the violation, merely to promote prompt settlement. If a violator is willing to agree to voluntary compliance and remediation, but is unwilling to agree to pay an appropriate-penalty amount, absent compelling circumstances the prosecution should proceed to hearing to seek an order which will achieve all DEC goals, including general and specific deterrence and punishment.

For any given violation, there is no single "correct" penalty amount which can be determined by any formula. Rather, it is more reasonable to attempt to identify a penalty figure which lies within a range of amounts which would be fair and effective. If a respondent is willing to enter into a negotiated agreement which provides for voluntary compliance, and does so reasonably promptly, a penalty figure in the lower end of that range would be appropriate. On the other hand, if the violator is recalcitrant, is totally or relatively unresponsive to DEC enforcement action, negotiates in bad faith or seeks to delay resolution of the violation, a penalty at the higher end of the range is warranted.

III. Objectives in Assessing Penalties

The fundamental purpose of environmental enforcement is to promote compliance with environmental laws and thereby improve and protect New York's natural resources and environmental quality. This is best accomplished by preventing violations of the ECL that have potential to damage the environment. Enforcement is also Necessary to abate and remediate damage and to restore natural resources. However, remedial or abatement actions do not replace the need for penalties.

Consistent with the direction given by this policy, Regions and Enforcement Units have flexibility to establish penalties in consideration of circumstances unique to each Region, each program and each case. Although this policy attempts to achieve a measure of consistency in the Department's overall approach to penalty calculation, it is recognized that each region of the State, and indeed each individual case, varies from every other. It is not expected that identical penalties will always be assessed in cases charging violations of the same ECL provision in different parts of the State. Fairness and effective deterrence may require differing penalty amounts in cases that appear similar on their face. By the same token, many violations of the law and rules are more routine and thereby conducive to consistent treatment throughout the State. This directive attempts to balance the need for flexibility with the desirability of statewide consistency.

Enforcement action should ensure that deterrence in both the general and specific sense is established. Penalties should persuade the violator to take precautions against falling into non-compliance again, as well as persuade others not to violate the law. Successful deterrence provides the best protection for the environment. In addition, it reduces resources necessary to enforce the laws by discouraging non-compliance. In order to provide adequate deterrence, penalties for the same violation of the law may have to be different for different violators. Effective deterrence cannot be achieved by a rigid, formulaic approach to penalty calculation.

If a penalty is to achieve deterrence, both the violator and the general public must be convinced that the penalty places the violator in a worse position than those who have voluntarily complied in a timely fashion. For this reason, it is DEC policy that, at a minimum, penalties should remove any economic benefit that results from a failure to comply with the law. This amount is referred to as the "benefit component" of the penalty.

Removing the benefit of non-compliance only places the violator in the same position in which it would have been if compliance had been achieved on time. Both deterrence and fundamental fairness require that the penalty include an additional amount to ensure that the violator is economically worse off than if it obeyed the law. This additional penalty amount should reflect the seriousness of the violation and is referred to as the "gravity component."

IV. Penalty Calculations

  1. Introduction

    This section provides guidelines for calculating the benefit and gravity components of penalties. The penalty should equal the gravity component, plus the benefit component, plus or minus any adjustments.

    In an adjudicatory hearing, Department staff should request a specific penalty amount, and should provide an explanation of how that amount was determined, with reference to

    1. the potential statutory maximum;
    2. this guidance document;
    3. any program specific guidance document(s);
    4. other similar cases; and
    5. if relevant, any aggravating and mitigating circumstances which staff considered.

    This may be done orally at the hearing, or by written submission, at the discretion of the judge or prosecutor. the record should include evidence relevant to any aggravating or mitigating factors which are applicable. If the violation is proven, it should be presumed that a penalty is warranted unless respondent documents compelling circumstances to the contrary.

  2. Statutory Penalty Analysis

    The ECL provides civil and administrative penalties for virtually every violation of a statute, regulation, permit or order. Often penalties exist for each continuing day of violation. Sworn statutes also have multiplier factors based on prior violations. The starting point of any penalty calculation should be a computation of the potential statutory maximum for all provable violations. DEC staff preparing for negotiations and adjudications should analyze all the statutory bases for penalties. Staff should use all the multiplier factors involved, starting from the day of the first provable violation to the date the calculation is made or the date that compliance was or is expected to be achieved.

    At initial stages of case development, program staff preparing case reports should consult with the appropriate enforcement attorney and other involved program staff to ensure that the case report fully discusses all potential violations of law. Actions which result in one violation may violate other laws. Prior violations should be investigated. Appropriate investigations should be made into the compliance history of a violator. a multimedia assessment of the facility may be appropriate to achieve maximum compliance.

    The focus on monetary penalties in this document does not foreclose consideration of other additional remedies such as sewer moratoria, suspension or revocations of permits or other Departmental approvals or necessary remedial action. In cases where these remedies are appropriate, they should generally be imposed in addition to, not in lieu of, the full, payable penalty.

  3. Benefit Component
    1. Benefit Component Analysis

      The benefit component is an estimate of the economic benefit of delayed compliance, including the present value of avoided capital and operating costs and permanently avoided costs which would have been expended if compliance had occurred when required. The benefit component should also include any other economic benefits resulting from noncompliance, such as avoided liquidated damages under contracts and enhanced value of business or real property.

      Many types of violations enable the violator to avoid permanently certain costs associated with compliance. These include costs for operation and maintenance of equipment that the violator failed to install; failure to properly operate and maintain existing control equipment; failure to employ a sufficient number of adequately trained staff; failure to establish or follow precautionary methods required by regulations or permits; and failure to install, operate and maintain monitoring equipment. in the case of natural resource damage which is theoretically reversible or remediable but which is not so reversed or remediated, there may be cognizable economic benefits due to increased property values, illegal profits, etc.

      The benefits of delayed and avoided costs may be calculated together to arrive at amounts equal to the economic benefit of non-compliance for the period from the first provable date of violation until the date of compliance.

      In appropriate cases, the DEC may use the EPA computer program known as BEN to calculate and estimate the economic benefit in sophisticated and significant violations. The Division of Environmental Enforcement, working with Program Divisions, should develop guidance for the use of models and formula which provide a rational basis to calculate economic benefit of non-compliance.

      Every effort should be made to calculate and recover the economic benefit of non-compliance.

    2. Benefit Component Adjustments

      In general, DEC should not settle for less than the economic benefit of non-compliance. Nonetheless, there are three Circumstances where adjustments may be appropriate. The DEC in its discretion may refuse to consider these benefit component adjustments if the respondent does not supply sufficient and credible documentation of the relevant matter.

      1. De Minimis Benefits

        The commitment of significant DEC resources may not be warranted in cases where the magnitude of the benefit component is insignificant. In such matters, DEC enforcement staff has the professional discretion not to seek the benefit component of the penalty.

      2. Compelling Public Interest

        In the exercise of discretion, the DEC attorney, in consultation with Regional and/or Program Directors, may reduce or suspend payment of the benefit component of the penalty where the public interest would not be served by taking the penalty action to full adjudicatory hearing. In such cases, it may be necessary to settle the case for less than the benefit component. Such settlements might be appropriate in the following circumstances: removal of the economic benefit would result in plant closure, bankruptcy, or other extreme financial burdens, and there is public interest in allowing the firm to continue in business; in enforcement actions against not-for-profit public entities such as municipalities, the circumstances might include situations where assessment of the civil penalty threatens to disrupt continued provision of essential public services. In situations where a plant is likely to close anyway, or where there is a likelihood of continued harmful non-compliance, the full economic benefit should be recovered.

      3. Litigation Practicalities

        The exercise of prosecutorial discretion by the Department's professional staff is a critical component of this Policy and is to be applied in all cases to determine a proper resolution.

  4. Gravity Component
    1. Preliminary Gravity Component Analysis

      Removal of the economic benefit of non-compliance merely evens the score between violators and those who comply. Therefore, to be a deterrent, a penalty must include a gravity component, which reflects the seriousness of the violation, calculated based on the factors listed below.

      Developing and assigning dollar amounts to represent the gravity of a violation is a process which necessarily involves consideration of various factors and circumstances. The relative seriousness of violations has always been implicit in DEC's exercise of prosecutorial discretion. However, systematic exercise of that discretion requires an explicit analysis addressing these two "gravity component factors":

      1. Potential harm and actual damage caused by the violation; and
      2. Relative importance of the type of violation in the regulatory scheme.

      Addressing these two "gravity component factors" will yield a "preliminary gravity penalty component." These factors are discussed more fully below in Section IV.D.2. There are five potential adjustments to the preliminary gravity penalty amount and they are discussed in Section IV.E.

    2. Preliminary Gravity Component Factors
      1. Potential Harm and Actual Damage

        This factor focuses on whether and to what extent the respondent's violation resulted in or could potentially result in loss or harm to the environment or human health. The penalty should be proportional to potential harm arc/or actual damage. measures of potential harm and actual damage include: amount and toxicity of the pollutant released to the environment, the amount and degree of misuse of a substance of concern or the amount and Degree of actual or potential damage to natural resources.

        The sensitivity of affected environmental sectors is relevant. For example, discharge or emission violations which threaten inhabited areas, actual or potential drinking water supplies or especially valuable natural or recreational resources are contemplated under the harm/damage factor. Furthermore, violations involving highly toxic pollutants or the misuse of acutely toxic substances or irreversible despoliation of sensitive natural areas or natural resources are on the extreme end of a spectrum of the harm.

        For violations that caused or are causing natural resource or environmental damage, enforcement should be aimed at obtaining remedial action as well as assessing a penalty. When actual remediation and repair of the violator's environmental harm is not carried out by the violator then, subject to any statutory constraints, DEC shall apply, where practicable, the principles of common law damages or, where appropriate (i.e. when hazardous substances are involved), the principles of the Federal Comprehensive Environmental Response Compensation Liability Act, as amended, 42 U.S.C. 9601 et seq. [see especially 42 U.S.C. 9607 (a)(4)(c) and (f)] to value natural resource damages and this gravity component factor. The basic concept is that the measure of damages is the cost of repair or replacement, plus a sum for the lost usage of the natural resource until the restitution and/or remediation is made. Generally, measure of the diminution in value of the damaged resource or the measure of economic gain by the wrongdoer are inadequate measures of the damages for natural Resource harm.

        Lastly, as a general proposition, the longer a violation continues uncorrected or unremediated, the greater is the risk of harm to and the loss of benefit from the natural resource and, correspondingly, the greater the size of the gravity component.

      2. Importance to the Regulatory Scheme

        This factor focuses on the importance of the violated requirement in achieving the goal of the underlying statute. For example, submission of self-monitoring tests are fundamental to the operation of the SPDES program and the monitoring requirements therein. Registration, filing or reporting requirements are critical to the Department's understanding of the universe of regulated entities. Undertaking any action which requires a DEC permit, without first obtaining the permit, is always a serious matter, not a mere "technical" or "paper work" violation, even if the activity is otherwise in compliance. Failure to first obtain required permits deprives DEC of the opportunity to satisfy its obligation of review and control of regulated activities. Failure to assess significant penalties for such violations would be unfair to those who voluntarily comply with the law by satisfying the requirements of the permit process. Failure to perform operation and maintenance that results in violation, such as failure to maintain a bag-house for stack emissions control or failure to maintain a leachate sump pump, is likewise extremely serious. Assessments of relative importance should be made in each program-specific Enforcement Guidance Memorandum.

  5. Penalty Adjustments

    Adjustments to the gravity portion of the penalty will provide the flexibility and equity needed in DEC's penalty system. The adjustments will allow DEC to treat similarly situated violators similarly.

    1. Culpability

      This factor will only be considered in order to increase a penalty. Most ECL violations carry strict liability, and hence the violator's mental state is irrelevant to the determination of legal liability. However, this does not render the violator's culpable mental state irrelevant in assessing the amount of a penalty. Also, criminal negligence, recklessness, and knowing or intentional conduct can give rise to criminal liability (criminal sanctions are not subject to this policy). The absence of negligence, recklessness or intentional misconduct would indicate that no addition to the penalty based on this adjustment is appropriate. Where the violation is intentional, reckless or (in some situations) negligent, significant upward adjustment of the penalty is appropriate. Parties undertaking activities regulated by DEC have a duty to familiarize themselves with applicable legal requirements. Ignorance of the law or rules is never a mitigating factor. Indeed, in many situations, ignorance of the law may amount to negligence.

      In assessing the degree of intent, recklessness or negligence, the following points should be considered:

      1. how much control the violator had over the events constituting the violation; and
      2. the foreseeability of the events constituting the violation.
    2. Violator Cooperation

      The cooperation of the violator in remedying the violation may be an appropriate factor to consider in adjusting the penalty in the discretion of staff. Adjustment may be considered when there has been prompt reporting of non-compliance and the cooperation of the violator is manifested by the violator's self-reporting, if such self reporting was not otherwise required by law. Such behavior may result in mitigation of the penalty, particularly if the violator has promptly corrected the environmental problems caused by the violation, and the violator is willing to enter into a binding and enforceable agreement to carry out appropriate remediation.

      Ordinarily, a contractor's failure to perform as required by the contract is not a basis for penalty adjustment. A violator bears the responsibility of selecting a contractor that will perform required tasks satisfactorily and of monitoring the contractor's performance to assure compliance.

    3. History of Non-Compliance

      A history of violations subsequent to environmental enforcement actions is usually evidence that the violator has not been deterred by the previous enforcement response. Unless violations are caused by factors entirely out of the control of the violator, the penalties on the subsequent enforcement actions should be more severe. In deciding how large the upward non-compliance history adjustments should be, DEC enforcement staff should consider the following points:

      1. how recent the previous violation was;
      2. the number of previous violations; and
      3. the violator's response to previous violations in regard to correction of the previous problem and attempts to avoid repeat violations.

      In the case of large corporations with many divisions or wholly-owned subsidiaries, staff should review the non-compliance history of the owning corporation as well as the non-compliance history of the offending division or subsidiary itself.

    4. Ability to Pay

      It is important that the regulated community not regard violation of environmental requirements as a way of aiding a financially troubled business. Nor should the regulated community expect that smaller penalties will necessarily be imposed on smaller businesses or individuals. Rather, in some circumstances, DEC may consider the ability of a violator to pay a penalty in arriving at the method or structure for payment of final penalties. In addition, DEC reserves the option in its sole discretion in appropriate circumstances of seeking a penalty that might exacerbate a company's fiscal difficulties. For example, it is unlikely that DEC could reduce a penalty where a facility refuses to correct a serious violation, regardless of the violators ability to pay. The same could be said for a violator with a long history of previous violations. That long history demonstrates that less severe measures were ineffective.

      The ability to pay adjustment will normally require a significant amount of financial information specific to the violator. The burden to demonstrate inability to pay rests with the respondent. If the violator fails to provide sufficient credible information, Department staff should disregard this factor. An unsupported or inadequately supported claim of inability to pay should not be accepted.

      In addition, in certain civil enforcement circumstances, it may be appropriate to engage the services of the Bureau of Environmental Conservation Investigations (BECI) to assist in the determination of the financial capability of a violator. For example, BECI investigators might need to determine the number of employees at a site or whether vehicles are owned or leased by a firm.

      If it is determined that inability to pay may be a factor, as a last resort, reduction of the penalty may be considered. DEC Enforcement staff may negotiate such reductions, provided that additional financial security is provided by the violator. This may be in the form of joinder of individual corporate officers or shareholders or the posting of other appropriate financial security. also, other mechanisms may be available to allow assessment of the full penalty.

    5. Unique Factors

      The DEC enforcement prosecution staff has discretion to adjust the penalties up or down for factors not anticipated here.

V. Environmental Projects

The practice of giving environmental "credits" in settlement of DEC litigation is not authorized and will be considered a viable settlement option only for public agencies, municipalities and not-for-profit corporations. Approval to accept an environmental benefit project as a means to reduce a payable penalty must be obtained from the Deputy Commissioner and General Counsel on a case-by-case basis for projects in excess of $2,500.

When environmental benefit projects are used to mitigate a penalty, they are subject to the conditions set forth below. In most cases, all of the conditions must be met before environmental benefit projects may be accepted and approved by DEC:

  1. The activity should be identified in the order and must be initiated in addition to all regulatory compliance obligations. It must not be an activity which is otherwise required by law. The project must not be a substitute for full compliance. It must be designed to provide an environmental benefit beyond the benefits of full compliance.
  2. The project must not be a project which the respondent would have undertaken anyway within the next five years.
  3. The activity should address the environmental effects of the respondent's violation. Preferably, the project should address the same type of risk or harm caused by the violator. In general, qualifying activities should provide a discernible response to the risk or harm caused by the violations.
  4. The respondent's cost of undertaking the activity, taking Into account the tax benefits that accrue, should be commensurate with the penalty which would otherwise be appropriate. In order to attain the deterrent objectives of the civil penalty policy, the amount of the penalty substitution should reflect the actual cost to the respondent.
  5. The activity must demonstrate a good-faith commitment to statutory compliance and should be primarily designed to benefit the environment rather than to benefit the respondent or DEC.
  6. Reduction of payable penalties by use of environmental benefit projects should not detract significantly from the general deterrent effect of the settlement as a whole. Accordingly, virtually every settlement involving a benefit project should include a payable penalty component.
  7. All environmental review and permit requirements applicable to the project must be complied with by the respondent and are enforceable commitments.
  8. Environmental benefit projects must be within the capability of DEC to review and monitor, and the project should be anticipated to yield benefits significant enough to justify the burden upon DEC.
  9. Because environmental benefit projects must result in direct benefit to the environment and the public's enjoyment of the State's natural resources, such environmental benefit projects may not be used to cover administrative costs of this agency or a revenue generating mechanism for this agency.

VI. Ensuring Future Compliance and Remedial Action

  1. General Considerations

    This policy addresses the issue of appropriate penalties for past violations and for the recovery of economic benefit of non-compliance up to the date of actual compliance. However, DEC's orders must also include penalties or other devices which ensure actual compliance with DEC's orders.

    If immediate compliance is not feasible, orders may temporarily waive strict compliance with statutory and regulatory requirements, so long as the respondent adheres to a strict compliance schedule, expeditiously leading to full compliance and meets all interim conditions. The respondent's failure to adhere to the conditions within the order may generally be treated in one of three ways. The first is to treat the failure to adhere to the compliance schedule requirements as a total breach of the order. In such case, the violation of the order is tantamount to violation of the underlying statutes upon which the order is based (which right Should be reserved in the Order). Also, violation of the administrative order is a separate violation of law, enforceable administratively or in the courts.

    The second way to address a violation of the compliance schedule in an order is to adjust the compliance schedule, modify the consent order, and collect associated suspended and stipulated penalties.

    The third way to address violations of an order is to build into the order mechanisms that contemplate minor deviations from the terms of the compliance schedule or interim controls. These deviations would be within certain foreseeable bounds, and payment of further suspended and stipulated penalties would "redeem" the violator and forestall additional legal action when payment of the stipulated penalty is made upon previously agreed-upon terms.

  2. Suspended Penalties

    When suspended penalties are imposed, they are based on past violations. Collection of a suspended penalty is premised on a subsequent violation of the order. DEC should not rely exclusively on suspended penalties to ensure adherence to compliance schedules, interim controls and remedial action plans. Rather, stipulated future penalties, and, if appropriate, the posting of financial securities should be utilized and tailored to the orders which contain compliance schedules, remedial action plans or interim measures.

    In appropriate cases, suspended penalties can be an effective method of assuring compliance with an order. When a suspended penalty is used to secure compliance, the payable penalty is not reduced. The payable component of the penalty should be calculated according to this guidance. The suspended component of the penalty should generally be somewhat greater than the estimated cost of complying with the order, and may approach or equal the statutory maximum, minus the payable penalty. Use of suspended penalties which greatly exceed payable penalties creates the perception that the Department is settling the enforcement matter at a lower penalty level than appropriate. Therefore, it is important to consider the relationship between suspended and payable penalties when setting penalty amounts. Care should be taken to avoid sole reliance on a suspended penalty against a business entity which may later dissolve or shed itself of assets. Where this possibility exists, additional security devices, such as bonds, letters of credit, trust funds, escrow accounts, personal liability of one or more corporate officer(s) or shareholder(s), backed by confession of judgment, should be considered.

    Suspended penalties should also be used in negotiated settlements to address ability to pay problems as specified in Section IV.E and as part of any approved environmental benefit project (Section V).

  3. Stipulated Penalties

    Stipulated penalties should be used in addition to or in concert with suspended penalties and should be high enough to be a disincentive for delaying project completion. When setting the level of stipulated penalties, Regional Attorneys and program staff should consider the relative seriousness of order requirements, the underlying statutory penalty liability for violation of such requirements and the potential statutory maximum penalty. Stipulated penalties should be based upon rational considerations of the economic benefit of the delay, the magnitude of the deviation from the requirement and ability to pay.

  4. Other Assurance Mechanisms

    Surety bonds, letters of credit, trust funds, escrow accounts and personal liability guarantees should be considered, in addition to suspended and stipulated penalties. When used, such financial assurances should be payable to the DEC upon DEC's unilateral determination that the respondent has not satisfied a condition in the order. Language in the consent orders should adopt the Confession of Judgment approach under the CPLR section 3218. The office of General Counsel will provide separate guidance by memoranda on these topics.

VII. Conclusion

This Enforcement Directive shall be used by DEC staff in concert with specific Enforcement Guidance Memoranda to effectuate the environmental enforcement mission of this agency.

Commissioner of Environmental Conservation

Thomas C. Jorling

Dated: Albany, New York

20 June 1990

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