§ 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.