NY Env Conserv L § 71-2723 (2021)
2021 New York Laws ENV - Environmental Conservation Article 71 - Enforcement Title 27 - Enforcement of Article 27 and Article 71 71-2723 - Procedure for Determining the Amount of the Cost of Disposing of Wastes or of Restoring an Area to Its Original State Following a Defendant's Convicti

§ 71-2723. Procedure for determining the amount of the cost of disposing              of  wastes  or  of  restoring an area to its original state              following a defendant's conviction under sections  27-0914,              71-2707,   71-2709,  71-2710,  71-2711,  71-2712,  71-2713,              71-2714, 71-2715 and 71-2717 of this chapter.   1. Order directing a hearing. In any case where the court  is  of  the opinion that the sentence should consist of or include the amount of the cost  of  legally  disposing  of  a  hazardous  waste when such waste is unlawfully possessed or restoring to its original state the area where a substance was unlawfully released  in  violation  of  sections  27-0914, 71-2710,  71-2711,  71-2712,  71-2713  and  71-2714 of this chapter, the court shall order a hearing to determine the amount of the cost of  such disposal or restoration. For the purposes of this section, the "original state  of the area" shall mean the reasonably ascertainable condition of the  property  immediately  prior  to  the  unlawful  disposal   or   if impracticable  to  determine  such  condition,  then  it  shall  be  the reasonable environmentally sound condition of the  property.  The  order must  be  filed  with the clerk of the court and must specify a date for the hearing not less than ten days after the filing of the order.   2. Notice of hearing. Upon receipt of the  order,  the  clerk  of  the court  must  send  a notice of the hearing to the defendant, his counsel and the people. Such notice must specify  the  time  and  place  of  the hearing and the fact that the purpose thereof is to determine the amount of the cost of legally disposing of a hazardous waste when such waste is unlawfully possessed or restoring to its original state the area where a substance  was  released  unlawfully  in  violation of sections 27-0914, 71-2710, 71-2711, 71-2712, 71-2713 and 71-2714 of this chapter.   3. Hearing. When the defendant appears for the hearing the court  must ask  him  whether  he wishes to make any statement or offer any evidence with respect to the amount of the  cost  of  legally  disposing  of  the hazardous  waste when such waste is unlawfully possessed or restoring to its original state the area where a substance was released unlawfully in violation of sections 27-0914, 71-2710, 71-2711,  71-2712,  71-2713  and 71-2714 of this chapter.   4.  Burden  and  standard  of  proof;  evidence.  At  any hearing held pursuant to this section the burden of proof rests upon the people.  For the purpose of any hearing held pursuant to this section, a finding:  (a) as to the amount of the cost of legally disposing of the hazardous waste when such waste is unlawfully possessed;  (b)  as to the amount of the cost of legally restoring to its original state the area where the substance was released unlawfully in  violation of  sections  27-0914, 71-2710, 71-2711, 71-2712, 71-2713 and 71-2714 of this chapter must be based upon a preponderance  of  the  evidence.  The defendant  shall  be  permitted  to  rebut  any  evidence offered by the people.   5. Conclusion of hearing. At any time during the pendency of a hearing pursuant to this section the court may, in its discretion, terminate the hearing without making any finding, provided the  court  states  on  the record  its  reasons  for  the termination. In all other cases the court shall enter its findings and judgment upon the record at the  conclusion of the hearing.   6.  Judgment.  (a)  The  judgment  may require the defendant to pay an amount for the disposal of hazardous wastes or the  restoration  of  the property  or  to perform duties of disposal or restoration or to perform both.  (b) When the court orders the defendant  to  pay  an  amount  for  the disposal  of  hazardous  wastes  or the restoration of the property, the provisions of article four hundred twenty of the criminal procedure  law  shall  govern  the  collection  of the amount which shall be paid to the commissioner for deposit to the credit of the hazardous  waste  remedial fund established by section ninety-seven-b of the state finance law.  (c)  Where  the  court  orders  the defendant to perform duties of the disposal of hazardous wastes or the  restoration  to  the  property  the court  may authorize the department to supervise and report to it on the conduct of such duties; provided, however, that, section  eight  of  the court  of  claims  act  or  any  other  provision of law to the contrary notwithstanding, the state shall be immune  from  liability  and  action with  respect  to  any  act  or  omission  done  in  the exercise of the department's authority as  so  conferred  by  the  court;  and  provided further  that  this  subdivision shall not limit any liability which may otherwise exist for unlawful, willful or malicious acts or omissions  on the  part  of the state, state agencies, or their officers, employees or agents.  (d) In order to most likely  assure  the  disposal  of  the  hazardous wastes  or  the restoration of the property, where there are two or more defendants the court may apportion the costs or assign  the  performance duties  of  disposal  or  restoration,  or  both,  between  or among the defendants as the interests of justice may appear to the court.