Relates to the general civil penalty of the environmental conservation law; provides that in addition to the fines, such person may be enjoined from continuing such violation and any permit or certificate issued to such person may be revoked or suspended, or a pending renewal application may be denied.
TITLE OF BILL: An act to amend the environmental conservation law, in relation to the general civil penalty
PURPOSE OF BILL: To amend the Environmental Conservation Law (ECL) to provide injunctive relief for ECL violations for which there is no specifically stated penalty in law.
SUMMARY OF PROVISIONS: ECL § 71-4003 is amended to provide for injunctive relief, as well as revocation or suspension of a permit or certificate or denial of a pending renewal application, for violations of the ECL where the penalty is not otherwise specifically provided.
EXISTING LAW: ECL § 71-4003 provides for a civil penalty of $500 for the initial violation, and an additional $500 for each day the violation continues.
LEGISLATIVE HISTORY: 2012: Senate Bill 1971 (Gianaris) - Died in Senate Environmental Conservation Committee 2012: Assembly Bill 1645 (Kavanagh) - Died in Assembly Environmental Conservation Committee 2010: Assembly Bill 5259 (Gianaris) - Died in Assembly Environmental Conservation Committee 2008: Assembly Bill 6903 (Gianaris) - Died in Assembly Environmental Conservation Committee 2006: Senate Bill 4114 (Marcellino) - Died in Senate Environmental Conservation Committee 2006: Assembly Bill 7601 (Gianaris) - Died in Assembly Codes Committee
STATEMENT IN SUPPORT: Typically, the relevant provisions of the ECL give the Commissioner specific authority to assess monetary civil penalties and to direct injunctive relief in redress of violations of such provisions. However, before passage of ECL § 71-4003 providing for a general civil penalty, there were certain ECL violations for which there was no stated penalty in law. When the Legislature enacted ECL § 71-4003 in 1977 (formerly § 71-3903), it provided for the assessment of a monetary penalty, but not for injunctive relief, for those violations for which there was no specific penalty provided elsewhere in the ECL. The Department of Environmental Conservation's experience since the enactment of ECL § 71-4003 has demonstrated the need to revise such section to include injunctive relief.
The nature of certain ECL violations make injunctive relief a more appropriate remedy than a monetary penalty. Fox example, ECL Article 34, relating to Coastal Erosion Hazard Areas, recognizes the need to regulate activities and development, including erection of erosion protective structures, within the coastal erosion hazard areas of New York to minimize damage to property and prevent the exacerbation of erosion hazards. ECL Article 34 has no specific penalty provisions; therefore, violations of such Article are penalized under ECL § 71-4003. Pursuant to ECL § 71-40030 the Commissioner may only assess monetary penalties. However, if a violator has constructed a structure which is detrimental to a coastal erosion hazard area, it may be more appropriate to require that the violator remove such structure, rather than Day a monetary penalty.
In addition, revocation or Suspension of a permit or certificate, or denial of a renewal application may be a suitable penalty. This would be especially true where the subject offense involves violation of the conditions of such permit or certificate. This proposal, in amending ECL § 71-4003, would allow the Commissioner to utilize the penalty most appropriate to the nature of the violation.
BUDGET IMPLICATIONS: None.
EFFECTIVE DATE: This act shall take effect immediately.
STATE OF NEW YORK ________________________________________________________________________ 585 2013-2014 Regular Sessions IN SENATE (PREFILED) January 9, 2013 ___________Introduced by Sen. GIANARIS -- read twice and ordered printed, and when printed to be committed to the Committee on Environmental Conservation AN ACT to amend the environmental conservation law, in relation to the general civil penalty THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Section 71-4003 of the environmental conservation law, as amended by chapter 99 of the laws of 2010, is amended to read as follows: S 71-4003. General civil penalty. Except as otherwise specifically provided elsewhere in this chapter, a person who violates any provision of this chapter, or any rule, regu- lation or order promulgated pursuant thereto, or the terms or conditions of any permit, CERTIFICATE OR ORDER issued thereunder, shall be liable
[to]FOR a civil penalty of not more than one thousand dollars, and an additional civil penalty of not more than one thousand dollars for each day during which each such violation continues; AND IN ADDITION THERETO, SUCH PERSON MAY BE ENJOINED FROM CONTINUING SUCH VIOLATION, AND ANY PERMIT OR CERTIFICATE ISSUED TO SUCH PERSON MAY BE REVOKED OR SUSPENDED, OR A PENDING RENEWAL APPLICATION MAY BE DENIED. Any civil penalty, INJUNCTIVE RELIEF, OR PERMIT OR CERTIFICATE REVOCATION, SUSPENSION OR DENIAL provided for by this [chapter]SECTION may be assessed following a hearing or opportunity to be heard. S 2. This act shall take effect immediately.EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD01377-01-3