2023 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.