The New York State Department of Environmental Conservation (“NYSDEC”) issues Notices of Violation (“NOV”) to people and companies who it believes have violated New York’s Environmental Conservation Law (“ECL”) or its associated environmental regulations. Typically, the NOV follows a citizen complaint and investigation into the complaint, so often times the NOV’s recipient is aware of its possibility. In some instances, NYSDEC gives parties an opportunity to take corrective action after the investigation, with the NOV being withheld as long as the party follows through. If you are the recipient of an NOV, or of a threatened NOV, what are some steps you should consider?
Treat the Matter Seriously.
Most parties who receive an NOV take it seriously. The ones who get in the most trouble are the ones who ignore them. Sticking your head in the sand like an ostrich and doing nothing is not going to make the problem go away. In fact, it is pretty much a guaranteed way to make matters worse. In some instances, the ECL calls for penalties of up to $15,000 per day for ongoing violations. In other instances, willful violations can constitute misdemeanors, calling for imprisonment of up to one year. While those kinds of penalties are unlikely, they are possible—especially for parties who are non-responsive. If you receive an NOV, don’t let it slip to the bottom of your to-do list. Take it seriously.
Understand the NOV.
The NOV will describe the allegations against you. It will cite the provisions of the ECL or regulations that NYSDEC believes have been violated and provide a short description of how it believes you have violated those provisions. It will inform you of potential penalties. It may provide you with copies of the laws or regulations it claims are violated.
Study these allegations carefully. Just because you’ve been provided an NOV, does not mean that you have violated the law. Sometimes NYSDEC is wrong. Sometimes it does not have all the facts. For that reason, NYSDEC allows you the opportunity to furnish materials for your defense and to request an informal conference with NYSDEC to discuss the allegations. Remember, however, that any information you provide can be used against you in a civil or criminal enforcement proceeding.
At some point, you will be talking with NYSDEC to resolve the NOV. In some instances, where the stakes are minor, maybe you feel comfortable doing it yourself—but more often than not, you will want experienced environmental counsel. Remember that an NOV can mean more than fines or penalties. It can mean a criminal investigation. It can lead to a permit revocation or permit denial down the road. If your business relies on that permit to operate, is that something you really want to risk without having the advice of counsel?
You or your counsel should thoroughly understand the provisions you’ve been charged with violating. Is there a potential defense? What records do you have that can show NYSDEC that it is mistaken, maybe in part if not in whole? If you are liable for a violation, maybe you can show mitigating circumstances? Or maybe you have no real defense? You need to know the answer to these questions before you meet with NYSDEC to discuss the NOV.
Be prepared to negotiate.
It may be that you have a complete defense to the NOV and are willing to take the matter to hearing, if NYSDEC will not dismiss the NOV. That happens. You may feel you have no other choice. If so, you want experienced counsel by your side because the risks are high.
But that situation is pretty uncommon. Most NOVs are resolved through negotiations with NYSDEC. The reason why is simple: both NYSDEC and you want the same thing. NYSDEC wants to ensure that you and your company comply with applicable laws and regulations. It wants to be protective of the environment and the state’s citizens. You also want to be in compliance and, if there has been a violation, correct it and ensure you do not have to deal with the issue again. The question is how to you get there and how do you minimize or maybe even eliminate any penalty?
Where it makes sense, following the investigation, NYSDEC often times will provide guidance on what needs to be corrected and, as long as that happens, will hold off on an NOV. If the violations are not grave or too serious—and a party is responsive, has a good history of compliance, and is working with counsel to help facilitate corrective measures—NYSDEC typically is willing to be more lenient. But the converse is also true: if the violations are severe and public health is at stake or the party has a history of violations and non-compliance, or was given an opportunity to take corrective action and failed, then NYSDEC is much less likely to be lenient. The role of environmental counsel can be very important here.
Finally, when you resolve the NOV, follow through on what you promise to do. If your company needs to take protective measures by a deadline, do it—and if it looks like you cannot, let NYSDEC know enough in advance that you are trying but need an extension. You do not want to be tagged as a non-compliant party or a serial violator. Also, take the opportunity to educate yourself and your workers about the law, what is required, what went wrong and how to avoid similar problems in the future. An ounce of prevention is worth a pound of cure: with good guidance, you probably can avoid the cost and aggravation of a future NOV.
If you receive an NOV, it can be an intimidating experience—but environmental counsel can help you through it. If you feel you need environmental counsel, feel free to contact Tim Lambrecht, Esq. or Kevin Murphy, Esq. at the Wladis Law Firm.
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