S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  1696

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                             January 9, 2009
                               ___________

Introduced by M. of A. ENGLEBRIGHT, COOK, V. LOPEZ -- Multi-Sponsored by
  --  M.  of  A. COLTON, DINOWITZ, GUNTHER, HEASTIE, MAYERSOHN, McENENY,
  SWEENEY -- read once and referred to the  Committee  on  Environmental
  Conservation

AN ACT to amend the environmental conservation law, in relation to envi-
  ronmental benefit projects in lieu of civil penalties

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. The environmental conservation law is amended by  adding  a
new section 71-0520 to read as follows:
S 71-0520. ENVIRONMENTAL BENEFIT PROJECTS IN LIEU OF CIVIL PENALTIES.
  1.  FOR  PURPOSES  OF THIS SECTION, THE FOLLOWING TERMS SHALL HAVE THE
FOLLOWING MEANINGS:
  A. "ECONOMIC BENEFIT OF NONCOMPLIANCE" SHALL MEAN THAT PORTION OF  THE
CIVIL PENALTY WHICH INCLUDES THE ECONOMIC GAIN TO THE RESPONDENT RESULT-
ING FROM ITS FAILURE TO COMPLY WITH THE APPLICABLE STANDARDS, CALCULATED
FROM  THE  FIRST  DAY  OF  VIOLATION  AND  INCLUDES THE PRESENT VALUE OF
AVOIDED CAPITAL AND OPERATION COSTS AND PERMANENTLY AVOIDED COSTS  WHICH
WOULD HAVE BEEN EXPENDED IF COMPLIANCE HAD OCCURRED WHEN REQUIRED.
  B.  "ENVIRONMENTAL  BENEFIT PROJECT" OR "PROJECT" SHALL MEAN A PROJECT
IN LIEU OF FULL PAYMENT OF CIVIL PENALTIES UNDERTAKEN BY A VIOLATOR THAT
IS INTENDED TO COMPENSATE FOR A VIOLATION OR CONTRAVENTION OF APPLICABLE
STANDARDS.
  C. "GRAVITY COMPONENT" SHALL MEAN THAT PORTION OF  THE  CIVIL  PENALTY
WHICH  REFLECTS  THE SERIOUSNESS OF A VIOLATION, CALCULATED ON THE BASIS
OF THE POTENTIAL AND ACTUAL HARM CAUSED BY THE VIOLATION, AND THE  VALUE
OF  THE  NATURAL  RESOURCE DAMAGES, IF THE VIOLATOR IS NOT REPAIRING THE
HARM.
  2. THE COMMISSIONER SHALL NOT ENTER INTO ANY AGREEMENT OR  ADMINISTRA-
TIVE  ORDER WHICH PROVIDES FOR A PARTIAL SETTLEMENT OF CONDITIONS IN THE

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD04900-01-9

              

A. 1696                             2

FORM OF ANY ENVIRONMENTAL BENEFIT PROJECT IN  LIEU  OF  THE  PAYMENT  OF
CIVIL PENALTIES UNLESS ALL OF THE FOLLOWING CONDITIONS ARE MET:
  A.  THE  RESPONDENT  DOES NOT HAVE A RECORD OF SIGNIFICANT OR REPEATED
NONCOMPLIANCE OR RECALCITRANCE;
  B. THE VIOLATION WAS NOT COMMITTED INTENTIONALLY, KNOWINGLY  OR  RECK-
LESSLY,  OR  WITH  ANY  OF THE CULPABLE MENTAL STATES DEFINED IN SECTION
15.05 OF THE PENAL LAW;
  C. THE VIOLATION DID NOT RESULT IN A THREAT TO PUBLIC HEALTH OR  CAUSE
GRAVE OR SERIOUS ENVIRONMENTAL HARM;
  D.  THE RESPONDENT SHALL, IN GOOD FAITH, UNDERTAKE ALL NECESSARY STEPS
TO PROMPTLY CORRECT THE VIOLATION;
  E. PROJECTS SHALL BE INITIATED IN ADDITION TO ALL  REGULATORY  COMPLI-
ANCE OBLIGATIONS AND SHALL BE DESIGNED TO PROVIDE AN ENVIRONMENTAL BENE-
FIT BEYOND THE BENEFITS OF FULL COMPLIANCE;
  F.  PROJECTS CANNOT BE ACTIVITIES OTHERWISE REQUIRED BY LAW OR ALREADY
OBTAINABLE UNDER THE DEPARTMENT'S AUTHORITY;
  G. ALL VIOLATIONS SHALL BE CORRECTED TO ENSURE COMPLIANCE WITH  APPLI-
CABLE  ENVIRONMENTAL  LAW  AND REGULATIONS, AND RESPONDENTS SHALL NOT BE
GIVEN ADDITIONAL TIME TO CORRECT  VIOLATIONS  IN  ORDER  TO  COMPLETE  A
PROJECT;
  H.  PROJECTS  SHALL  NOT  BE  MEASURES WHICH THE RESPONDENT WOULD HAVE
UNDERTAKEN ANYWAY WITHIN THE NEXT FIVE YEARS;
  I. PROJECTS SHALL BE DESIGNED TO PROVIDE A DISCERNIBLE BENEFIT TO  THE
ENVIRONMENT RATHER THAN TO THE RESPONDENT;
  J.  TO  ENSURE  THAT THE DETERRENT EFFECT OF A SETTLEMENT IS ACHIEVED,
SETTLEMENTS INVOLVING A PROJECT SHALL INCLUDE A PAYABLE  PENALTY  COMPO-
NENT;
  K.  THE  PROJECT  IS WITHIN THE CAPABILITY OF THE DEPARTMENT TO REVIEW
AND MONITOR, AND SHALL YIELD  BENEFITS  SIGNIFICANT  ENOUGH  TO  JUSTIFY
DEPARTMENT OVERSIGHT; AND
  L.  A PROJECT CAN NEITHER BE USED TO COVER ADMINISTRATIVE COSTS OF THE
DEPARTMENT NOR AS A REVENUE GENERATING MECHANISM FOR THE DEPARTMENT.
  3. ENVIRONMENTAL BENEFIT PROJECTS SHALL MEET THE FOLLOWING CRITERIA:
  A. THE PROJECT SHALL, TO THE EXTENT PRACTICABLE, BE LOCATED WITHIN THE
COUNTY WHERE THE VIOLATION OCCURRED, WITHIN TWENTY-FIVE LINEAR MILES  OF
SITE OF THE VIOLATION;
  B.  AN ENVIRONMENTAL RESTORATION PROJECT SHALL GO BEYOND REPAIRING THE
DAMAGE CAUSED BY THE VIOLATION TO ENHANCE THE CONDITION OF THE ECOSYSTEM
OR GEOGRAPHIC AREA ADVERSELY AFFECTED;
  C. A  POLLUTION  PREVENTION  PROJECT  SHALL  SUBSTANTIALLY  REDUCE  OR
PREVENT   THE   GENERATION  OR  RELEASE  OF  POLLUTANTS  THROUGH  SOURCE
REDUCTION;
  D. A RISK REDUCTION PROJECT SHALL DEVELOP AND IMPLEMENT  RISK  MANAGE-
MENT  OR  ACCIDENT  PREVENTION/EMERGENCY PLANNING PROGRAMS WHICH PROVIDE
PROTECTION IN EXCESS OF INDUSTRY STANDARDS AND EXISTING OR FUTURE  REGU-
LATORY REQUIREMENTS; AND
  E.  AN  ENVIRONMENTAL EDUCATION PROJECT SHALL, TO THE EXTENT PRACTICA-
BLE, BE DIRECTED TOWARD UNDERSTANDING THE NATURE OF THE  INDUSTRY  WHICH
HAS  CAUSED  THE VIOLATION, HOW THE VIOLATION IMPACTED THE COMMUNITY AND
WAYS IN WHICH THE COMMUNITY CAN BECOME MORE VIGILANT IN MONITORING ENVI-
RONMENTAL INSULTS AND VIOLATIONS.
  4. AN ENVIRONMENTAL BENEFIT PROJECT SHALL NOT INCLUDE THE FOLLOWING:
  A. A CONTRIBUTION TO ENVIRONMENTAL RESEARCH AT A COLLEGE OR  UNIVERSI-
TY;
  B.  A  PROJECT,  THOUGH  BENEFICIAL  TO THE IMPACTED LOCAL GOVERNMENT,
UNRELATED TO ENVIRONMENTAL PROTECTION;

A. 1696                             3

  C. STUDIES OR  ASSESSMENTS  WITHOUT  A  COMMITMENT  TO  IMPLEMENT  THE
RESULTS;
  D.  PERFORMANCE  OF  PROJECTS  BY  A  THIRD PARTY UNLESS SUCH PARTY IS
REQUIRED TO IMPLEMENT THE PROJECT SPECIFIED IN THE SETTLEMENT  DOCUMENT;
OR
  E. PUBLIC EDUCATION PROJECTS.
  5. SETTLEMENTS WHICH CONTAIN A PROJECT SHALL CONTAIN:
  A. A PAYABLE PENALTY COMPONENT WHICH FULLY RECOVERS THE ECONOMIC BENE-
FIT OF NONCOMPLIANCE TO THE RESPONDENT;
  B. A PAYABLE PORTION OF THE GRAVITY COMPONENT OF THE PENALTY; AND
  C.  A  WRITTEN  STATEMENT SIGNED BY THE RESPONDENT WHICH CONFIRMS THAT
THE RESPONDENT WILL NOT DEDUCT THE COST OF THE PROJECT FROM  ITS  TAXES.
IF  THE SETTLEMENT DOES NOT INCLUDE SUCH A STATEMENT, THE GRAVITY COMPO-
NENT OF THE PENALTY MUST BE ADJUSTED TO REFLECT THE TAX BENEFIT.
  6. ALL PROJECTS FACTORED INTO PENALTY CALCULATIONS SHALL BE  PERFORMED
PURSUANT TO LEGALLY ENFORCEABLE COMPLIANCE SCHEDULES WHICH:
  A.  ACCURATELY AND COMPLETELY DESCRIBE THE PROJECT, DETAIL THE ACTIONS
TO BE PERFORMED, AND PROVIDE RELIABLE AND OBJECTIVE MEANS TO VERIFY THAT
THE COMPLIANCE SCHEDULED HAS BEEN ADHERED TO;
  B. HAVE ENFORCEABLE MILESTONE IMPLEMENTATION SCHEDULES; AND
  C. OBLIGE THE RESPONDENT TO SUBMIT PERIODIC REPORTS TO THE  DEPARTMENT
DESCRIBING COMPLIANCE WITH THE TERMS OF THE PROJECT.
  7.  ALL PROJECTS SHALL BE SUBJECT TO THE FOLLOWING NOTICE AND APPROVAL
CONDITIONS:
  A. NOTICE OF THE PROPOSED SETTLEMENT OR ORDER, INCLUDING A DESCRIPTION
OF THE PROJECT AND THE PAYABLE PENALTIES,  SHALL  BE  PUBLISHED  IN  THE
ENVIRONMENTAL  NOTICE  BULLETIN  AND  AT  LEAST ONE NEWSPAPER IN GENERAL
CIRCULATION  IN  THE  AREA  WHERE  THE  VIOLATIONS  OCCURRED,  AT  LEAST
FORTY-FIVE DAYS BEFORE THE SETTLEMENT OR ORDER IS EXECUTED;
  B.  THE  ATTORNEY  GENERAL  SHALL REVIEW AND APPROVE THE SETTLEMENT OR
ADMINISTRATIVE ORDER; AND
  C. WHENEVER THE RESPONDENTS PUBLICIZE THE PROJECT OR PROJECT  RESULTS,
THE  RESPONDENT SHALL ACKNOWLEDGE THAT THE PROJECT WAS PERFORMED AS PART
OF THE RESOLUTION OF AN ENFORCEMENT ACTION BROUGHT BY THE DEPARTMENT.
  S 2. This act shall take effect immediately.