A.8461 (Grannis @ request of the Attorney General)
February 20, 2004
The Business Council opposes this legislation, which would significantly elevate existing strict criminal liability provisions of the Environmental Conservation Law for the failure to report chemical spills. Under the state's chemical bulk storage program, releases that exceed a "reportable quantity," or "RQ," must be reported to the Department of Environmental Conservation within two hours of the release. This spill reporting rule covers more than one thousand separate chemicals and compounds, with a significant number of RQs set as low as one pound of the regulated substance. DEC regulations even require the reporting of releases below RQ levels if such spills are likely to result in a significant health, safety or environmental risk.
The Business Council believes that these new criminal enforcement provisions are inappropriate for a number of reasons:
- It is inappropriate to impose strict criminal liability at the misdemeanor
or felony level without consideration of criminal intent.
If enacted, A.8461 would be the first instance where a violation of the ECL's
environmental quality provisions (i.e., air pollution, wastewater management,
solid and hazardous wastes, petroleum bulk storage, superfund) is raised
to a misdemeanor status without consideration of criminal negligence
or intent. In all
other environmental quality programs, misdemeanor and felony provisions either
reference the criminal culpability provisions found in Section 15.05 of the
Penal Law, or refer specifically to criminally negligent, willful, intentional
and/or knowing violations.
- This bill would inappropriately impose significant, new strict criminal
liability on a broad range of persons involved with the handling of chemicals.
The state's spill reporting regulation (6 NYCRR Part 595.3) imposes the
obligation to report "reportable quantity" releases not only on the owner
or operator of a chemical bulk storage facility, but also on any person under
contract with the owner/operator to inspect, test or repair a CBS facility;
any person "in actual or constructive possession or control" of chemicals stored
in bulk; and any employee or representative of the proceeding
persons who has knowledge of a reportable release. Under A.8461, an employee
on the shop floor who is aware of a chemical spill would be subject to strict
criminal liability at the misdemeanor level if they
fail to personally report a reportable spill, even if they believed that the
release was reported by another company representative. Since A.8461 imposes
strict criminal liability, this employee could be found guilty of a misdemeanor
even without any evidence of criminal negligence or intent. This is one area
in which the provision of A.8461 differ most significantly from federal provisions
cited in the sponsor's memo of support. The cited federal law, 42 U.S.C. Section
9603, only imposes liability on the person "in charge of" a regulated facility
at which the reportable release occurred.
- The memo in support of this legislation
states that, to establish a criminal violation of the ECL, it is often necessary
to prove the amount of a hazardous substance released to the environment. While
true, the state would be subject to the same burden under provisions of A.8461 — the
state would still have to demonstrate that a release exceeded a reportable
quantity. Importantly, the ECL already provides for criminal penalties in such
instances. The ECL's existing general criminal enforcement provisions (ECL
Section 71-4001) provide that any violation of the state's
environmental laws or regulations can be prosecuted as a criminal violation,
with penalties of up to 15 days imprisonment and $250 in penalties, with each
day of a continuing violation treated as a separate violation. Both Section
71-4001 and A.8461 would require the DEC to prove the same allegation — failure
to report a spill that exceeded a reportable quantity - in order to pursue
- The bill memo also argues that current law creates a "great disincentive" against prompt reporting of a chemical release, since prompt reporting would help DEC determine the amount of a release "which makes it easier to prove a felony violation" (referring to existing criminal penalties for endangering public health, safety or the environment found in ECL Article 71, Title 27.) However, we question whether a person engaged in "reckless" or "knowing" conduct resulting in a chemical release (the thresholds for felony violations under existing law) are likely to make a prompt report of such release to the DEC in order to avoid a possible misdemeanor violation under this act.
In summary, if increased criminal penalties are truly needed to provide a more effective deterrent against violations of the state's chemical spill reporting law, they must be based on criminal behavior as defined in the Penal Law.
However, The Business Council believes that the strict misdemeanor and felony provisions of A.8461 are both inappropriate and unnecessary, and would subject persons acting in good faith in response to a chemical spill to significant criminal sanctions. For these reasons, The Business Council opposes adoption of A.8461.