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

                                  3779

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                            January 28, 2009
                               ___________

Introduced by M. of A. LENTOL -- read once and referred to the Committee
  on Environmental Conservation

AN  ACT  to  amend  the  environmental  conservation law, in relation to
  requiring the indexing of  all  rules,  regulations,  orders,  consent
  orders and amendments thereto

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

  Section 1. Subdivision 5  of  section  17-0303  of  the  environmental
conservation  law  is  amended  by  adding  a new paragraph m to read as
follows:
  M. ENTER, IN THEIR ENTIRETY, AND INDEX ALL RULES, REGULATIONS, ORDERS,
CONSENT ORDERS AND AMENDMENTS THEREOF PROMULGATED, ISSUED OR ADOPTED  BY
THE DEPARTMENT IN QUARTERLY SUMMARY REPORTS TO BE KEPT BY THE DEPARTMENT
FOR THAT PURPOSE, AND SHALL BE PUBLIC RECORDS OPEN FOR INSPECTION AT ALL
TIMES  DURING  REASONABLE OFFICE HOURS. A COPY OF ANY DEPARTMENT RULE OR
REGULATION SHALL BE RECEIVED IN EVIDENCE IN ALL  COURTS  OF  THIS  STATE
WITH  THE  SAME EFFECT AS THE ORIGINAL, IF CERTIFIED BY A MEMBER OR DULY
AUTHORIZED EMPLOYEE OF THE DEPARTMENT.
  S 2. The environmental conservation law is amended  by  adding  a  new
section 19-0508 to read as follows:
S 19-0508. PUBLIC REVIEW MEETING.
  ALL  RULES, REGULATIONS, ORDERS, CONSENT ORDERS AND AMENDMENTS THERETO
MADE BY THE DEPARTMENT SHALL BE IN WRITING AND SHALL BE ENTERED IN  FULL
AND  INDEXED  IN  QUARTERLY SUMMARY REPORTS TO BE KEPT BY THE DEPARTMENT
FOR THAT PURPOSE, AND SHALL BE PUBLIC RECORDS OPEN FOR INSPECTION AT ALL
TIMES DURING REASONABLE OFFICE HOURS. A COPY OF ANY DEPARTMENT  RULE  OR
REGULATION  SHALL  BE  RECEIVED  IN EVIDENCE IN ALL COURTS OF THIS STATE
WITH THE SAME EFFECT AS THE ORIGINAL, IF CERTIFIED BY A MEMBER  OR  DULY
AUTHORIZED EMPLOYEE OF THE DEPARTMENT.
  S  3. Section 71-0519 of the environmental conservation law is amended
by adding a new subdivision 7 to read as follows:

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD05878-01-9
              

A. 3779                             2

  7. ALL RULES, REGULATIONS, ORDERS, CONSENT ORDERS AND AMENDMENTS THER-
ETO MADE BY THE DEPARTMENT SHALL BE IN WRITING AND SHALL BE  ENTERED  IN
FULL  AND INDEXED IN QUARTERLY SUMMARY REPORTS TO BE KEPT BY THE DEPART-
MENT FOR THAT PURPOSE, AND SHALL BE PUBLIC RECORDS OPEN  FOR  INSPECTION
AT  ALL  TIMES  DURING REASONABLE OFFICE HOURS. A COPY OF ANY DEPARTMENT
RULE OR REGULATION SHALL BE RECEIVED IN EVIDENCE IN ALL COURTS  OF  THIS
STATE  WITH THE SAME EFFECT AS THE ORIGINAL, IF CERTIFIED BY A MEMBER OR
DULY AUTHORIZED EMPLOYEE OF THE DEPARTMENT.
  S 4. Section 71-0523 of the environmental conservation law is  amended
to read as follows:
S 71-0523. Power of the department to settle or compromise an action.
  1.  The  department  shall BE empowered to settle or compromise in its
discretion any action or cause of action to recover a penalty under  the
provisions  of  this chapter listed in section 71-0501 or under titles 5
through [15] 13 inclusive and title 33 of this article, as it  may  deem
advantageous to the state.
  2. ALL RULES, REGULATIONS, ORDERS, CONSENT ORDERS AND AMENDMENTS THER-
ETO  MADE  BY THE DEPARTMENT SHALL BE IN WRITING AND SHALL BE ENTERED IN
FULL AND INDEXED IN QUARTERLY SUMMARY REPORTS TO BE KEPT BY THE  DEPART-
MENT  FOR  THAT PURPOSE, AND SHALL BE PUBLIC RECORDS OPEN FOR INSPECTION
AT ALL TIMES DURING REASONABLE OFFICE HOURS. A COPY  OF  ANY  DEPARTMENT
RULE  OR  REGULATION SHALL BE RECEIVED IN EVIDENCE IN ALL COURTS OF THIS
STATE WITH THE SAME EFFECT AS THE ORIGINAL, IF CERTIFIED BY A MEMBER  OR
DULY AUTHORIZED EMPLOYEE OF THE DEPARTMENT.
  S  5.  Subdivisions  1  and  2 of section 71-1307 of the environmental
conservation law, subdivision 1 as amended by chapter 166 of the laws of
1991, subdivision 2 as added by chapter 846 of the  laws  of  1981,  are
amended to read as follows:
  1.  Administrative sanctions. Any person who violates any provision of
article 23 of this chapter or commits any offense described  in  section
71-1305  of  this title shall be liable to the people of the state for a
civil penalty not to exceed five  thousand  dollars  and  an  additional
penalty of one thousand dollars for each day during which such violation
continues,  to be assessed by the commissioner after a hearing or oppor-
tunity to be heard. The commissioner, acting by  the  attorney  general,
may  bring  suit  for  collection  of such assessed civil penalty in any
court of competent jurisdiction. Such civil penalty may be  released  or
compromised  by  the commissioner before the matter has been referred to
the attorney general; and where such matter has  been  referred  to  the
attorney  general,  any  such penalty may be released or compromised and
any action commenced to recover the same may be settled and discontinued
by the attorney general with the  consent  of  the  commissioner.    THE
DEPARTMENT  SHALL  ISSUE  QUARTERLY SUMMARY REPORTS OF ALL SUCH RELEASES
AND COMPROMISES. In addition, the commissioner  shall  have  the  power,
following  a hearing conducted pursuant to rules and regulations adopted
by the department, to direct the violator to  cease  the  violation  and
reclaim  and  repair  the affected site to a condition acceptable to the
commissioner, to the extent possible within a reasonable time and  under
the direction and supervision of the commissioner. Any such order of the
commissioner  shall  be enforceable in any action brought by the commis-
sioner in any court of competent  jurisdiction.  Any  civil  penalty  or
order issued by the commissioner under this subdivision shall be review-
able  in  a proceeding under article seventy-eight of the civil practice
law and rules.
  2. Civil sanctions. In lieu of seeking administrative  sanctions,  the
commissioner  may refer any violation described in subdivision 1 of this

A. 3779                             3

section to the attorney general who shall be empowered to bring a  civil
suit  to  seek  any  of the sanctions described in subdivision 1 of this
section. Any such sanctions imposed may be released  or  compromised  or
the  action may be settled and discontinued by the attorney general with
the consent of the commissioner.  THE DEPARTMENT SHALL  ISSUE  QUARTERLY
SUMMARY REPORTS OF ALL SUCH RELEASES AND COMPROMISES.
  S  6.  Subdivision 4 of section 71-1707 of the environmental conserva-
tion law is amended to read as follows:
  4.  Such civil penalty may be released or compromised by  the  commis-
sioner  before  the  matter  has been referred to the [Attorney General]
ATTORNEY GENERAL, and where such matter has been referred to the [Attor-
ney General] ATTORNEY GENERAL, any  such  penalty  may  be  released  or
compromised  and any action commenced to recover the same may be settled
and discontinued by the [Attorney General]  ATTORNEY  GENERAL  with  the
consent  of  the  commissioner.    THE  DEPARTMENT SHALL ISSUE QUARTERLY
SUMMARY REPORTS OF ALL SUCH RELEASES AND COMPROMISES.
  S 7. Subdivision 2 of section 71-1927 of the  environmental  conserva-
tion law is amended to read as follows:
  2.  Settle  or compromise, with the approval of the [Attorney General]
ATTORNEY GENERAL, any action or cause of action for the  recovery  of  a
penalty  under  titles 1 through 11 inclusive and title 19 of article 17
OF THIS CHAPTER as he may deem advantageous to the state.   THE  DEPART-
MENT  SHALL  ISSUE  QUARTERLY  SUMMARY  REPORTS OF ALL SUCH COMPROMISES,
SETTLEMENTS AND ORDERS.
  S 8. Subdivision 1 of section 71-2303 of the  environmental  conserva-
tion  law,  as amended by chapter 654 of the laws of 1977, is amended to
read as follows:
  1. Administrative sanctions.   Any person who  violates,  disobeys  or
disregards  any  provision  of article twenty-four, including title five
and section 24-0507 thereof or any rule  or  regulation,  local  law  or
ordinance,  permit  or order issued pursuant thereto, shall be liable to
the people of the state for a civil penalty of not to exceed three thou-
sand dollars for every such violation, to be assessed, after  a  hearing
or  opportunity to be heard upon due notice and with the rights to spec-
ification of the charges and representation by counsel at such  hearing,
by  the commissioner or local government.  Such penalty may be recovered
in an action brought by the attorney general at the request and  in  the
name  of  the commissioner or local government in any court of competent
jurisdiction.  Such civil penalty may be released or compromised by  the
commissioner  or local government before the matter has been referred to
the attorney general; and where such matter has  been  referred  to  the
attorney  general,  any such penalty may be released or compromised, and
any action commenced to recover the same may be settled and discontinued
by the attorney general with the consent of the  commissioner  or  local
government.  THE DEPARTMENT SHALL ISSUE QUARTERLY SUMMARY REPORTS OF ALL
SUCH  COMPROMISES,  SETTLEMENTS OR ORDERS. In addition, the commissioner
or local government shall  have  power,  following  a  hearing  held  in
conformance  with  the  procedures  set forth in section 71-1709 of this
[chapter] ARTICLE, to direct the violator to cease his violation of  the
act  and  to  restore  the  affected freshwater wetland to its condition
prior to the violation, insofar as that is possible within a  reasonable
time  and under the supervision of the commissioner or local government.
Any such order of the commissioner or local government shall be enforce-
able in an action brought by the attorney general at the request and  in
the  name of the commissioner or local government in any court of compe-
tent jurisdiction.  Any civil penalty or order issued by the commission-

A. 3779                             4

er or local government pursuant to this subdivision shall be  reviewable
in  a proceeding pursuant to article seventy-eight of the civil practice
law and rules.
  S  9.  Subdivision 1 of section 71-2727 of the environmental conserva-
tion law, as amended by chapter 671 of the laws of 1986, is  amended  to
read as follows:
  1. The commissioner, after investigation, notice and an opportunity to
be heard, may issue, modify and revoke orders AND CONSENT ORDERS prohib-
iting  violations of any of the provisions of THIS article [27 or 71] OR
ARTICLE 27 OF THIS CHAPTER or of  any  rule  or  regulation  promulgated
pursuant  thereto  and requiring the taking of such remedial measures as
may be necessary or appropriate. SUCH ORDERS SHALL BE INDEXED  IN  QUAR-
TERLY  SUMMARY  REPORTS  OPEN FOR PUBLIC REVIEW DURING REASONABLE OFFICE
HOURS.
  S 10. This act shall take effect on  the  one  hundred  twentieth  day
after  it  shall  have  become a law. Effective immediately, any rule or
regulation necessary for the timely implementation of this  act  on  its
effective date may be promulgated on or before such date.