Recent New York State Department of Environmental Conservation Enforcement Action Demonstrates Value of Environmental Audits

Jan 21, 2016

Recent New York State Department of Environmental Conservation Enforcement Action Demonstrates Value of Environmental Audits

In a series of 2015 articles appearing in the NYMuniBlog – “New York State Environmental Audit Incentive Policy – Leaving DEC Out of the Picture?,” “The Nuts and Bolts of the New York State Environmental Audit Incentive Policy,” “New York State Environmental Self-Audits: A Form of Enforcement Insurance” and “New York State Environmental Audit Incentive Policy: Not Just For Heavy Industry” - as well as an article published in On Board, the official publication of the New York State School Boards Association, I explored the various ways that school districts, health care institutions and municipal governments can benefit, in both tangible and intangible ways, by conducting proactive, environmental regulatory compliance audits. A recent enforcement action undertaken by the New York State Department of Environmental Conservation (DEC) illustrates this point in a very compelling way.

To recap, last year we advocated that there is substantial value to be realized by proactively assessing the regulatory compliance status of a variety of institutions. We focused, purely as examples, on a limited cross-section of institutions whose activities could easily subject them to legal and financial liability for failing to do so. In those articles, we pointed out how school districts, health care institutions and municipal governments could avoid fines, needless embarrassment and possibly even lawsuits by undertaking environmental compliance audits under the auspices of the DEC’s Environmental Audit Program. Obviously, these institutions are but examples of the kind of facilities that could benefit from a holistic review of activities in order to assess compliance.

A recent DEC enforcement action taken against a large suburban school district in the Capital Region underscores the value and timeliness of that advice.

Earlier this month, following an incident that sickened numerous students and staff at one of the South Colonie Central School District’s middle schools, the DEC concluded an investigation into the circumstances surrounding the use of certain pesticides. The investigation resulted in the district superintendent signing an Order on Consent with the DEC, admitting that the district had illegally engaged in the commercial application of pesticides, failed to properly train and register those who had applied the pesticides, and misapplied those pesticides. The Order resulted in the district’s payment of a fine of several thousands of dollars and an agreement to cease further applications of pesticides unless it has complied with all applicable pesticide regulations and laws, including those cited in the Order.

Had this district conducted an environmental regulatory compliance audit under the guidance of an attorney experienced in such matters, it is likely that this scenario could have been avoided, sparing the district the unwanted publicity and, more importantly, saving the affected students and staff from an ugly encounter with regulated pesticides.

This cautionary tale offers some valuable and obvious guidance. Institutions such as schools, health care facilities and municipal government facilities (or any business that engages in activity regulated by DEC) can proactively address their compliance by voluntarily auditing their regulated activities, thereby, limiting the likelihood of inadvertently violating the law. Failing that, they risk the possibility of DEC enforcement should DEC carry out an inspection. In a more extreme instance, the risk could be even greater in terms of danger to workers, visitors and others who frequent the facilities.

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