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Our attorneys stay on top of changes in legislation, agency regulations, case law, and industry trends—then craft timely legal alerts to keep clients up to date on legal developments important to their business.

December 22, 2023

NYSDEC Finalizes Two Policies on Air Pollution Control Enforcement Actions

On December 20, 2023, the New York State Department of Environmental Conservation (NYSDEC) finalized two updated policies associated with New York State Environmental Conservation Law (ECL) Article 19 related to air pollution control enforcement actions. The policies, DAR-23 and DAR-24, provide new guidance on how NYSDEC will treat air violations and settlement procedures. 

The first policy, DAR-23: “Article 19 Violation Penalty Policy for Short Form Orders on Consent,” provides a consistent approach to address ECL Article 19 air violations where the potential for harm and any actual harm to public health, the environment, or the regulatory system is minor. DAR-23 supersedes previous NYSDEC policy (DEE-23 and DEE-5) and provides a matrix of recommended administrative penalties for specific minor violations. 

The second policy, DAR-24: “Calculation of Penalties for Article 19 Violations at Stationary Sources,” provides guidance for the calculation of recommended civil penalties for violations of ECL Article 19 at stationary sources for the purpose of administrative settlement. DAR-24 applies to settlements of NYSDEC enforcement actions for air violations that are not considered minor. 

Both policies guide the agency and industry in evaluating air violations and settlement amounts and procedures. Both policies are available for download on NYSDEC’s website

Attorneys in Barclay Damon’s Environmental Practice Area have significant experience in assisting clients alleged to have violated ECL Article 19 and its implementing regulations, including negotiating orders on consent. 

If you have any questions regarding the content of this alert, please contact Yvonne Hennessey, Environmental Practice Area chair, at yhennessey@barclaydamon.com; Danielle Mettler-LaFeir, partner, dmettler@barclaydamon.com; Dan Krzykowski, associate, at dkrzyowski@barclaydamon.com; or another member of the firm’s Environmental Practice Area.
 

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