Navigating Environmental Enforcement in New York
Oct. 24th, 2023 10:45 am
When it comes to protecting New York State’s environment, the New York State Department of Environmental Conservation (DEC) is at the forefront. The enforcement of the state’s Environmental Conservation Law (ECL) is a complex process, and understanding its intricacies is crucial, especially if you find yourself involved in an environmental compliance matter.
1. Complaint or Initial Information:
The journey begins with a complaint or information received by the NYS DEC. This information can come from various sources, including concerned citizens, law enforcement, or even NYS DEC personnel during routine inspections. For example, a concerned citizen reports the illegal dumping of hazardous waste materials in a nearby wetland area.
2. Assignment to Investigators:
Once the NYS DEC receives the complaint or information, they assign the case to investigators within relevant divisions. These investigators are responsible for conducting a thorough examination of the case, and their expertise is crucial to moving the investigation forward.
3. Preliminary Investigation:
Investigators initiate a preliminary investigation to verify the validity of the complaint or information. This phase involves reviewing available records, conducting interviews with witnesses, and, if necessary, visiting the site in question. For example, investigators visit the reported wetland area to assess the extent of hazardous waste dumping, take photographs, and interview witnesses who may have observed the illegal activity.
4. Evidence Gathering:
During the preliminary investigation, investigators collect evidence that can support potential enforcement actions. This can include photographs, documents, and physical samples. Sometimes, specialized experts or equipment may be required for complex data analysis.
For example, investigators may collect soil and water samples from a contaminated area and send them to a specialized laboratory for analysis to determine the extent and nature of the hazardous waste.
5. Legal Review:
Once evidence is gathered, the DEC’s legal team review the case to assess its merits and to determine whether there’s sufficient evidence to proceed with enforcement actions. Legal experts evaluate the case against the ECL and other relevant regulations to determine whether violations have occurred.
6. Notice of Violation (NOV) or Warning:
When evidence suggests a violation of the ECL, the DEC may issue a Notice of Violation (NOV) or a warning to the alleged violator. The NOV specifies the violations, demands cleanup, and sets a timeline for compliance.
7. Administrative Settlement or Consent Order:
In some cases, resolution comes through negotiation. The DEC and the alleged violator may negotiate an administrative settlement or consent order. This agreement outlines the actions the violator must take to come into compliance and may include penalties or fines. For example, the responsible party agrees to a consent order that includes a detailed plan for cleaning up the hazardous waste, strict compliance measures, and monetary penalties for non-compliance. Also, the DEC provides its own mediation services, which requires consent by both parties, if that avenue best suits resolving the dispute.
8. Administrative Hearing:
Disputes or non-compliance can lead to an administrative hearing if the purported violator disputes the NOV and requests such a hearing. The administrative law judge reviews the evidence and issues a decision, which typically includes substantial fines and an order for proper hazardous waste disposal.
9. Judicial Action:
When necessary, the DEC may pursue legal action in state court. This can involve seeking civil penalties, injunctions, or other remedies, especially for severe or persistent violations.
Compliance Monitoring:
Even after resolution, the DEC continues to monitor compliance with the terms of the resolution. This may involve regular inspections of the site to ensure that hazardous waste removal and cleanup are carried out as specified in the consent order.
In conclusion, NYSDEC’s environmental investigations and enforcement actions can involve a complicated, detail-oriented process. That’s why it’s so important to have experienced attorneys on your side to help you navigate them successfully. Understanding this process is crucial, whether you’re a concerned citizen, a business owner, or a legal professional involved in environmental compliance matters.
The Zoghlin Group PLLC has experience representing individuals, municipalities, developers, contractors, neighborhood groups, and property owners. If you find yourself party to an environmental investigation or enforcement action, or are concerned about how a nearby environmental condition may affect you, contact an experienced attorney at The Zoghlin Group, PLLC for help. For questions or inquiries related to Environmental Law, please contact Jacob H. Zoghlin, Esq. or Mindy L. Zoghlin, Esq.
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