The intent of this bill is to prevent persons who have violated the Environmental Conservation Law from bidding on public solid waste management contracts, and to "eliminate environmental violators from the solid waste removal and disposal industry."
While The Business Council supports effective enforcement of the ECL, we oppose this bill because it would authorize unreasonable economic penalties for minor violations of the Environmental Conservation Law, and have a significant, adverse impact on municipal solid waste management services.
Our most serious concern regarding S.900 is that it allows the Department of Environmental Conservation to impose a six month prohibition on public contract procurement if a person has been found to be in violation of any provision of DEC regulations or local ordinances related to solid waste management. This penalty could be imposed irrespective of the culpability of the offender, the significance of the violation, or whether the violation posed any threat to public health or environmental quality. In other words, the bill authorizes significant economic sanctions even for minor ECL violations.
The Business Council also opposes provisions imposing a mandatory one-year prohibition on public contract procurement if a person or company is convicted of a misdemeanor relating to solid waste management laws. This rigid approach to enforcement is contrary to existing ECL provisions that govern both civil and criminal violations of the state's solid waste management rules. While the ECL authorizes significant financial penalties and imprisonment for misdemeanors related to solid waste programs fines of up to $15,000 per day of violation and up to 1 years' imprisonment for a Class A misdemeanor the ECL (Section 71-2703.5) also requires that the amount of fine, penalty or sentence imposed for violations of Article 27, Title 7 (governing solid waste facilities) be based on a range of factors, including: the compliance history of a violator, its good faith efforts to comply with the law, any economic benefit derived from noncompliance, the amount of risk or damage to public health and the environment caused by a violation, whether the violation was procedural in nature, and the economic impact of penalties on the violator. However, the new economic penalty that would be authorized under S.900 is not subject to the ECL's penalty assessment criteria.
This bill is intended to penalize "bad actors," businesses that consistently violate the ECL. However, regulators inspect solid waste facilities at varying rates depending on many factors, and the facilities inspected most often may in fact be the ones with superior compliance even if some minor violations are identified. It is unreasonable to authorize DEC to impose a ban on obtaining public contracts for minor, technical or paperwork violations of regulations.
We are also concerned with the breadth of the enforcement mechanism proposed in S.900. Under this bill, the term "procurement of a public contract" is defined, in part, as the "conduction of any contractual business" (emphasis added) with any public entity within the state. We believe this provision would allow the DEC to void existing contracts, in addition to prohibiting a violator from obtaining new contracts. If so, this legislation could have an undue impact on state agencies and municipality, if their waste management company is precluded from providing contracted services.
It is also important to note that the ECL already authorizes the suspension or revocation of DEC-issued permits to operate solid waste management facilities or to transport commercial/industrial solid wastes, in response to significant violations. Finally, provisions of the State Finance Law governing the procurement of services by state agencies, and provisions of the General Municipal Law governing the procurement of services by municipal entities, already allow for the consideration of compliance histories in assessing whether an entity is a responsible bidder. Given these existing enforcement and procurement mechanisms available to both state and municipal governments, we believe these additional sanctions are unnecessary.
For these reasons, The Business Council respectfully opposes adoption of S.900.