N.Y. Environmental Conservation Law § 71-1933: Violations; criminal liability

§ 71-1933. Violations; criminal liability.

1. Any person who, having any of the culpable mental states defined in

section 15.05 of the penal law, shall violate any of the provisions of

titles 1 through 5, 9 through 11 and 19 of article 17 or the rules,

regulations, orders or determinations of the commissioner promulgated

thereto, or the terms of any permit issued thereunder, shall be guilty

of a misdemeanor and, upon conviction thereof, shall be punished by a

fine of not less than three thousand seven hundred fifty dollars nor

more than thirty-seven thousand five hundred dollars per day of

violation or by imprisonment for a term of not more than one year, or by

both such fine and imprisonment. If the conviction is for an offense

committed after a first conviction of such person under this

subdivision, punishment shall be by a fine of not more than seventy-five

thousand dollars per day of violation, or by imprisonment for not more

than two years, or by both.

2. No prosecution under this section shall be instituted until after

final disposition of an appeal or review, if any, provided by section

17-0909 or its predecessor, section 1244 of the Public Health Law.

3. Any person who with criminal negligence, as defined in section

15.05 of the penal law,

a. violates

i. any provision of title 7 or 8 of article 17 of this chapter, or

ii. the rules or regulations promulgated thereunder, or

iii. any term of any permit issued thereunder, or

iv. any requirement imposed in a pretreatment program approved

pursuant to section 402(a)(3) or 402(b)(8) of the Federal Water

Pollution Control Act (33 USC § 1342(a)(3) or § 1342(b)(8)) or approved

pursuant to title 7 or 8 of article 17 of this chapter, or

v. any final administrative orders issued pursuant to this article

where an opportunity for a hearing is provided, or

b. introduces into a sewer system or publicly owned treatment works

any pollutant or hazardous substance

i. when such person knew that such introduction was likely to cause

personal injury or property damage, except if that introduction was in

compliance with all applicable federal, state or local requirements or

permits, or

ii. which causes the treatment works to violate any term of any permit

issued under title 7 or 8 of article 17 of this chapter or the rules or

regulations promulgated thereunder except if that introduction was in

compliance with all applicable federal, state or local requirements or

permits; shall be guilty of a class A misdemeanor.

4. Any person who knowingly, as defined in section 15.05 of the penal

law,

a. violates

i. any provision of title 7 or 8 of article 17 of this chapter, or

ii. the rules or regulations promulgated thereunder, or

iii. any term of any permit issued thereunder, or

iv. any requirement imposed in a pretreatment program approved

pursuant to section 402(a)(3) or 402(b)(8) of the Federal Water

Pollution Control Act (33 USC § 1342(a)(3) or § 1342(b)(8)) or approved

pursuant to title 7 or 8 of article 17 of this chapter, or

v. any final administrative orders issued pursuant to this article

where an opportunity for a hearing was provided, or

b. introduces into a sewer system or publicly owned treatment works

any pollutant or hazardous substance

i. when such person knew that such introduction was likely to cause

personal injury, except if that introduction was in compliance with all

applicable federal, state or local requirements or permits, or

ii. which causes the treatment works to violate any term of any permit

issued under title 7 or 8 of article 17 of this chapter or the rules or

regulations promulgated thereunder except if that introduction was in

compliance with all applicable federal, state or local requirements or

permits; shall be guilty of a class E felony.

5. Any person who intentionally, as defined in section 15.05 of the

penal law,

a. violates

i. any provision of title 7 or 8 of article 17 of this chapter, or

ii. the rules or regulations promulgated thereunder, or

iii. any term of any permit issued thereunder, or

iv. any final administrative orders issued pursuant to this article

where an opportunity for a hearing was provided, and

b. knows at that time that he thereby places another person who is not

a participant in the crime in imminent danger of death or serious bodily

injury shall be guilty of a class C felony.

c. for the purpose of paragraphs a and b of this subdivision:

in determining whether a defendant who is an individual knew that his

conduct placed another person in imminent danger of death or serious

bodily injury

(a) the person is responsible only for actual awareness or actual

belief that he possessed; and

(b) knowledge possessed by a person other than the defendant but not

by the defendant himself may not be attributed to the defendant.

6. For purposes of subdivisions three, four and five of this section,

a single operational upset which leads to simultaneous violations of

more than one pollutant parameter shall be treated as a single

violation.

7. Any person who, with intent to deceive, makes any false material

statement, representation, or certification in any application, record,

report, plan or other document filed or required to be maintained

pursuant to title 7 or 8 of article 17 of this chapter or who

intentionally falsifies, tampers with, or renders inaccurate any

monitoring device or method required to be maintained pursuant to title

7 or 8 or article 17 of this chapter shall be guilty of a class E

felony.

8. a. When a person is convicted of a crime under the provisions of

this section, the sentence of the court shall be as follows:

i. A fine, as set forth in paragraph b of this subdivision;

ii. A sentence of imprisonment, as set forth in paragraph c of this

subdivision; or

iii. Any combination of such fine or imprisonment.

b. Fines. A sentence to pay a fine shall be a sentence to pay an

amount fixed by the court, not exceeding:

i. $750,000 for a class C felony committed by an organization as

defined in section 71-1932 of this title;

ii. $375,000 for a class C felony;

iii. $75,000 per day of continuing violation for a class E felony

defined under subdivision four of this section but in no event less than

$7,500; and $15,000 for a class E felony defined under subdivision seven

of this section;

iv. $37,500 per day of continuing violation for a class A misdemeanor

but in no event less than $3,750.

c. Imprisonment. A sentence of imprisonment shall be a sentence of

imprisonment authorized by article seventy of the penal law.

9. All prosecutions under this section shall be instituted by the

department or the commissioner and shall be conducted by the Attorney

General in the name of the people of the state of New York.

10. In the prosecution of any criminal proceeding under this section

by the Attorney General and, in any proceeding before a grand jury in

connection therewith, the Attorney General shall exercise all the powers

and perform all the duties which the District Attorney would otherwise

be authorized or required to exercise or perform, and in such a

proceeding the District Attorney shall exercise such powers and perform

such duties as are requested of him by the Attorney General.