At the end of 2009 the New York State Department of Environmental Conservation adopted revisions to its Environmental Benefits Projects (EBPs) policy. This revised policy replaced the existing EBP policy (CP-37) and provides guidance to DEC staff and the regulated community regarding DEC’s use of EBPs in the settlement of enforcement actions. The policy took effect on January 29, 2010. Among the changes to the existing CP-37, the revised policy: (1) recognizes DEC discretion to have a respondent make a payment to a designated entity or fund for implementation of an approved project; (2) states a preference, instead of a mandate, for a project to have a geographic nexus to the violation(s); (3) states a preference for projects that have a pollution prevention component; (4) eliminates or eases certain limitations on EBPs (i.e., elimination of the requirement for a payable penalty of at least 20 percent of the calculated payable penalty in favor of a more flexible standard of a “material payable penalty”; (5) allows consideration of projects that achieve significantly early compliance or significantly exceed minimum compliance; (6) states a preference for specified EBPs over unspecified EBPs; (7) where a respondent agrees to an unspecified EBP, requires an approvable specified EBP be proposed within a year; (8) broadens the financial assurance mechanisms available for use; and (9) allows for the reimbursement of extraordinary expenses incurred by DEC in overseeing implementation of an EBP.
The revised policy is available at: www.dec.ny.gov/regulations/57988.html
To access a 50-state survey on supplemental environmental projects (SEPs) visit: http://www.uchastings.edu/centers/public-law/seps/index.html
