The Business Council opposes this bill that would criminalize the failure to provide notice within two hours of a release of an identified substance. The Business Council is concerned that the scope of this legislation is excessively broad.
The legislation requires that any person who violates any provision of ECL 37-0107 must notify the department of a release of reportable quantity of a hazardous substance The first problem with this legislation is that it presumes that persons who have violated a provision of ECL 37-0107 will know that they contravened any rules or regulations promulgated pursuant to the chapter.
The legislation fails to identify a reportable quantity. Article 37 of the ECL requires the DEC to develop a list of substances hazardous or acutely hazardous to public health, safety or the environment and establishment of reportable quantities for each such substances. The DEC list includes almost 1,000 substances, it is inconceivable that most people would be aware of the established reportable quantity of the release would be known by all.
While it may not be the intent of this legislation, its effect is to, extend these reporting requirements (and penalties) to individuals who are relatively low in an organization's chain of command. There is no requirement in the bill that the person who violates any provision as described above has supervisory responsibilities over the release and was in a position to detect, prevent and abate the release of the hazardous substances. As a result, employees with relative little ability to control a job site may be liable for unlawful releases and for failing to report such releases to the proper authorities.
For these reasons, The Business Council respectfully opposes approval of S.3360/A.5562.