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New DEC Environmental-Audit Policy is Worth Considering
Let’s face it — ensuring environmental compliance can be a daunting task given the proliferation of increasingly complicated regulations. To help the regulated community, in 1995, the U.S. Environmental Protection Agency (EPA) issued a policy entitled “Incentives for Self-Policing: Discovery, Disclosure, Correction and Prevention of Violations,” more commonly known as the “EPA audit policy.” The […]
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Let’s face it — ensuring environmental compliance can be a daunting task given the proliferation of increasingly complicated regulations. To help the regulated community, in 1995, the U.S. Environmental Protection Agency (EPA) issued a policy entitled “Incentives for Self-Policing: Discovery, Disclosure, Correction and Prevention of Violations,” more commonly known as the “EPA audit policy.”
The EPA audit policy has provided incentives, most notably in the form of penalty reduction or waiver, to organizations that voluntarily audit their compliance with federal environmental regulations, disclose potential violations, and return to compliance. By most accounts, the EPA audit policy has been a clear “win-win” scenario, because it has improved environmental compliance and eliminated financial penalties that would otherwise have been assessed.
DEC policy
The EPA audit policy is focused exclusively on compliance with federal environmental regulations, and of course, most Central New York facilities are also subject to New York state environmental regulations. Accordingly, the performance of an environmental audit always raised the concern of what to do if potential violations of New York regulations were identified (as they frequently are). That concern has been resolved by the New York State Department of Environmental Conservation’s (DEC) recent issuance of a new Commissioner Policy, entitled “Environmental Audit Incentive Policy” (the “DEC policy), which took effect on Nov. 18, 2013.
Much like its federal counterpart, the DEC policy encourages the regulated community to audit operations, take measures to prevent violations, and to voluntarily disclose and promptly correct any violations that are discovered, thereby improving environmental compliance and protecting public health and the environment. The DEC policy applies to any entity regulated under New York State environmental laws and regulations.
Significantly, the environmental-audit program can consist of an informal, internal review or a formal third-party audit. As an incentive, the DEC can reduce or waive penalties for violations that are discovered and disclosed voluntarily. Certain violations are excluded, such as those involving alleged criminal conduct, or that are reported by a member of the public or a “whistleblower” employee, or violations required to be self-reported. Companies or organizations with a history of non-compliance, and which have not been cooperative in resolving past violations, may also ineligible to use the DEC policy.
A regulated entity must disclose a violation or suspected violation promptly in writing to the DEC regional office, generally within 30 days of discovery. This timeframe is important — a regulated entity is deemed to have discovered the violation when any officer, director, employee, or agent of the facility knows or has reason to believe that a violation has, or may have, occurred. Practically, this could mean the clock starts ticking the day an EHS manager or consultant learns of a potential violation, not later when senior management hears about it.
New owners of a facility can benefit from the DEC policy for violations discovered prior to or within 60 days of acquisition, provided they disclose within 60 days after acquisition or within 30 days of discovery of the violation, whichever is later. In all cases, unless a different time frame is specified by law, violations must be corrected within 60 days after disclosure.
To appreciate how significant the penalty waiver could be, it is important to understand how an initial penalty is calculated. A monetary penalty consists of a gravity component (how significant was the harm?) and an economic-benefit component (how much did the organization save by not complying?). The New York DEC will waive the gravity component for eligible cases, and for entities engaged in environmental audits and environmental-management systems during the ordinary course of business, the economic-benefit component may be waived where de minimis. For certain types of violations, this can easily save tens or hundreds of thousands of dollars.
Savings of this magnitude can certainly justify the cost — in time and resources — to undertake an environmental audit.
Robert R. Tyson is a partner and an environmental and energy attorney at Bond, Schoeneck & King, PLLC. His practice includes New York state and federal regulatory compliance, environmental enforcement and litigation, and environmental issues in business and property transactions. Contact him at (315) 218-8221 or email: rtyson@bsk.com
On Dec. 10, the U.S. Treasury Department sold off its last shares of General Motors’ stock (NYSE: GM). Both President Obama and the Treasury Secretary Jack Lew touted the company bailouts — Chrysler was also bailed out — as a success. Let’s do a quick review to understand what “success” means in Washington doublespeak. President
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On Dec. 10, the U.S. Treasury Department sold off its last shares of General Motors’ stock (NYSE: GM). Both President Obama and the Treasury Secretary Jack Lew touted the company bailouts — Chrysler was also bailed out — as a success. Let’s do a quick review to understand what “success” means in Washington doublespeak.
President Obama said the federal government had to step in to keep both companies from “going bankrupt.” To the uninitiated, that meant going out of business. If so, then how did American Airlines just come out of bankruptcy and merge with US Airways. Clearly, bankruptcy doesn’t always mean ceasing operations.
Our president repeatedly told us that the private sector had no interest in rescuing GM unless Uncle Sam stepped in. How do we know that, since his administration short-circuited the process? GM clearly had outsized liabilities, because management couldn’t say no to the unions and the corporate culture was sclerotic. But that doesn’t mean there wasn’t demand for the product and assets in the form of capital investments, a dealer network, loyal customers, and skilled workers.
The president further argued that the industry would collapse if GM went bankrupt. Funny thing, the government took the company through the bankruptcy process anyway while propping up GM with taxpayer money. In the process, the political appointees in charge of the process stuck it to the bond- and stock-holders, while protecting the interests of some unions.
In GM’s case, President Obama and Secretary Lew both admitted that the taxpayers took it on the nose for $10 billion (another $1 billion was lost in the Chrysler bailout); that’s called success inside the Beltway. Neither man mentioned that Chrysler is now majority-owned by Fiat and that each GM job “saved” cost more than six figures.
The U.S. government’s final argument for stepping in was the collapse of the auto manufacturers’ supplier network. That presumes the feds were the only savior. Since the Obama Administration has no problem rescuing banks, they could have politely suggested that these financial institutions lend money to those suppliers in need.
Our sitting president may be slapping himself on the back for the government’s role in the auto bailouts, but what he really did was to circumvent an established process and decide which interest group would benefit, all at the expense of the public.
The bailouts were just another form of corporate cronyism. Only in Washington would the bailouts be called a success.
Norman Poltenson is publisher of The Central New York Business Journal. Contact him at npoltenson@cnybj.com
New York Tax Reform and Fairness Commission Outlines Reforms
It is widely understood that New York is a high-tax state. New York state citizens are acutely aware of this fact. It is hardly surprising then that the governor, being the politician that he is, has appointed not one, but two, commissions to examine how to reform the Empire State’s tax system. The first commission
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It is widely understood that New York is a high-tax state. New York state citizens are acutely aware of this fact. It is hardly surprising then that the governor, being the politician that he is, has appointed not one, but two, commissions to examine how to reform the Empire State’s tax system. The first commission he appointed, with the Orwellian name, “New York State Tax Reform and Fairness Commission,” released its report last month. Notwithstanding its name, the report contains some good ideas on how New York should reform its tax structure.
The report begins by acknowledging that we are a high-tax state. In the 2012-13 fiscal year, state and local governments levied about $146 billion in taxes. Of that $146 billion, $64 billion is attributable to state taxes and the remaining $82 billion came from local tax collections. Of the $82 billion raised in local taxes, $49 billion was raised through property taxes. Although the report raises the issue of local taxes, the majority of its suggested changes deal with reforming our state’s tax system, not our local tax systems.
First, the report acknowledges that New York’s use and sales tax system is antiquated and needs to be modernized. I agree with this conclusion. At the very least, we need to simplify the system. I have heard from many small businesses about how difficult it is for them to understand and determine the products on which they need to collect sales tax. For example, if you sell bagels, you do not charge sales tax on the bagels, but if you toast the bagels, slice them, and put butter on top, then you must charge sales tax.
There are all sorts of inane examples along these lines that businesses encounter on a regular basis. The commission report states that the structure is “unduly complex” and makes “voluntary compliance more difficult, increasing the cost of doing business in the state and creates financial risk for vendors who ‘get it wrong’ and adds to the government’s tax administration costs.”
If nothing else, in the upcoming legislative session, we should make revenue-neutral changes to our sales-tax system to take out much of the complexity that has arisen over the years.
Second, the report also acknowledges that our state’s estate tax has not kept pace with changes that have made to federal estate-tax laws. As characteristic of our high-tax reputation, New York is one of only 17 states that has an estate tax. Moreover, only two states have estate-tax exemption amounts lower than New York’s $1 million sum.
I was pleased that the report notes New York’s estate tax may be a factor in taxpayer migration from New York to states without an estate tax. In Central New York, we have seen many area residents change their residency to Florida, a state without an estate tax, in an effort to avoid New York’s estate tax.
It is hard enough competing with Florida on the basis of the weather. We shouldn’t also be giving people an economic incentive to move there. To try to alleviate this problem, the commission recommends in its report to raise New York’s estate-tax exemption from $1 million to $3 million. This is a start. However, I would rather see us eliminate our estate tax entirely or, at the very least, match the exemption amount to the federal amount, which is $5.25 million.
Third, the commission recommends an accelerated phase out of the 18-a surcharge. This surcharge is a 2 percent assessment on electric, gas, water, and steam utilities. Like all taxes on businesses, these levies are passed on to the consumers. This surcharge is no different. It places an additional burden on New York families and businesses because we already pay high utility bills notwithstanding our taxes.
In last year’s budget, the state legislature and governor agreed to phase out this charge over a three and one-half year period. As mentioned, the commission recommends phasing this out more quickly because it has such a detrimental effect, particularly on businesses. I agree and indeed sponsor legislation to fully repeal this surcharge.
The commission also recommends many other changes to our state’s tax code. Some of their other recommendations I agree with, some I do not. However, I am pleased that at least there is some focus being brought to what is a primary economic problem in our state.
As mentioned above, the governor also has appointed a second commission to look at our state’s tax system. Apparently, this second commission is supposed to focus on coming up with proposals to relieve New Yorkers from our high property-tax burden. I look forward to seeing its proposals and hope that the ideas will be broad-based. Solutions will have to get at the reasons why we have high property taxes in this state and not simply shift the burden of our taxes from one group of citizens to another. I will provide an update once this second commission’s report becomes available.
William (Will) A. Barclay is the Republican representative of the 120th New York Assembly District, which encompasses most of Oswego County, including the cities of Oswego and Fulton, as well as the town of Lysander in Onondaga County and town of Ellisburg in Jefferson County. Contact him at barclaw@assembly.state.ny.us, or (315) 598-5185.
Mohawk Valley Chamber rebrands as Greater Utica Chamber of Commerce
UTICA — The Mohawk Valley Chamber of Commerce today announced it is rebranding as the Greater Utica Chamber of Commerce, effective today. The name
Wilmorite proposes casino for Seneca County
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State awards funding in third round of Regional Economic Development Council initiative
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Clear Channel names Yacobush new Syracuse market manager
SYRACUSE — Clear Channel Media and Entertainment announced that it has named Rick Yacobush as market manager for Syracuse, effective Jan. 1. He will take
N.Y. AG settles with Utica hospitals to address competitive concerns
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New York’s health exchange reports nearly 101,000 signups
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Leadership Greater Syracuse names 2014 class
SYRACUSE — Leadership Greater Syracuse (LGS) today announced the 53 Central New Yorkers it has chosen to participate in the 2014 class of its yearlong
Stay up-to-date on the companies, people and issues that impact businesses in Syracuse, Central New York and beyond.