S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   2421
 
                        2019-2020 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             January 22, 2019
                                ___________
 
 Introduced  by  M.  of  A.  ENGLEBRIGHT -- 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:
 § 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
 FORM  OF  ANY  ENVIRONMENTAL  BENEFIT  PROJECT IN LIEU OF THE PAYMENT OF
 CIVIL PENALTIES UNLESS ALL OF THE FOLLOWING CONDITIONS ARE MET:
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD06884-01-9
              

 A. 2421                             2
 
   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;
   C.  STUDIES  OR  ASSESSMENTS  WITHOUT  A  COMMITMENT  TO IMPLEMENT THE
 RESULTS;

 A. 2421                             3
 
   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.
   § 2. This act shall take effect immediately.