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 RQ's 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 as either a misdemeanor or felony without consideration of criminal intent or negligence . If enacted, A.349-A / S.8191 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 requiring criminal intent, or negligence. 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 RQ 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.349-A / S.8191, 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 spill, even if they believed that the release was reported by another company representative. Since A.349-A / S.8191 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 this bill differs most significantly from federal provisions cited in the sponsor's memo. 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 sponsors memo 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.349-A / S.8191 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.349-A / S.8191 would require the DEC to prove the same allegation B failure to report a spill that exceeded a reportable quantity B in order to pursue criminal prosecution.
- The bill memo also argues that current law creates a " 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.
The Business Council believes that the strict misdemeanor and felony provisions of A.349-A / S.8191 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.349-A / S.8191.