§ 71-2723. Procedure for determining the amount of the cost of disposing\n of wastes or of restoring an area to its original state\n following a defendant's conviction under sections 27-0914,\n 71-2707, 71-2709, 71-2710, 71-2711, 71-2712, 71-2713,\n 71-2714, 71-2715 and 71-2717 of this chapter.\n 1. Order directing a hearing. In any case where the court is of the\nopinion that the sentence should consist of or include the amount of the\ncost of legally disposing of a hazardous waste when such waste is\nunlawfully possessed or restoring to its original state the area where a\nsubstance was unlawfully released in violation of sections 27-0914,\n71-2710, 71-2711, 71-2712, 71-2713 and 71-2714 of this chapter, the\ncourt shall order a hearing to
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§ 71-2723. Procedure for determining the amount of the cost of disposing\n of wastes or of restoring an area to its original state\n following a defendant's conviction under sections 27-0914,\n 71-2707, 71-2709, 71-2710, 71-2711, 71-2712, 71-2713,\n 71-2714, 71-2715 and 71-2717 of this chapter.\n 1. Order directing a hearing. In any case where the court is of the\nopinion that the sentence should consist of or include the amount of the\ncost of legally disposing of a hazardous waste when such waste is\nunlawfully possessed or restoring to its original state the area where a\nsubstance was unlawfully released in violation of sections 27-0914,\n71-2710, 71-2711, 71-2712, 71-2713 and 71-2714 of this chapter, the\ncourt shall order a hearing to determine the amount of the cost of such\ndisposal or restoration. For the purposes of this section, the "original\nstate of the area" shall mean the reasonably ascertainable condition of\nthe property immediately prior to the unlawful disposal or if\nimpracticable to determine such condition, then it shall be the\nreasonable environmentally sound condition of the property. The order\nmust be filed with the clerk of the court and must specify a date for\nthe hearing not less than ten days after the filing of the order.\n 2. Notice of hearing. Upon receipt of the order, the clerk of the\ncourt must send a notice of the hearing to the defendant, his counsel\nand the people. Such notice must specify the time and place of the\nhearing and the fact that the purpose thereof is to determine the amount\nof the cost of legally disposing of a hazardous waste when such waste is\nunlawfully possessed or restoring to its original state the area where a\nsubstance was released unlawfully in violation of sections 27-0914,\n71-2710, 71-2711, 71-2712, 71-2713 and 71-2714 of this chapter.\n 3. Hearing. When the defendant appears for the hearing the court must\nask him whether he wishes to make any statement or offer any evidence\nwith respect to the amount of the cost of legally disposing of the\nhazardous waste when such waste is unlawfully possessed or restoring to\nits original state the area where a substance was released unlawfully in\nviolation of sections 27-0914, 71-2710, 71-2711, 71-2712, 71-2713 and\n71-2714 of this chapter.\n 4. Burden and standard of proof; evidence. At any hearing held\npursuant to this section the burden of proof rests upon the people. For\nthe purpose of any hearing held pursuant to this section, a finding:\n (a) as to the amount of the cost of legally disposing of the hazardous\nwaste when such waste is unlawfully possessed;\n (b) as to the amount of the cost of legally restoring to its original\nstate the area where the substance was released unlawfully in violation\nof sections 27-0914, 71-2710, 71-2711, 71-2712, 71-2713 and 71-2714 of\nthis chapter must be based upon a preponderance of the evidence. The\ndefendant shall be permitted to rebut any evidence offered by the\npeople.\n 5. Conclusion of hearing. At any time during the pendency of a hearing\npursuant to this section the court may, in its discretion, terminate the\nhearing without making any finding, provided the court states on the\nrecord its reasons for the termination. In all other cases the court\nshall enter its findings and judgment upon the record at the conclusion\nof the hearing.\n 6. Judgment. (a) The judgment may require the defendant to pay an\namount for the disposal of hazardous wastes or the restoration of the\nproperty or to perform duties of disposal or restoration or to perform\nboth.\n (b) When the court orders the defendant to pay an amount for the\ndisposal of hazardous wastes or the restoration of the property, the\nprovisions of article four hundred twenty of the criminal procedure law\nshall govern the collection of the amount which shall be paid to the\ncommissioner for deposit to the credit of the hazardous waste remedial\nfund established by section ninety-seven-b of the state finance law.\n (c) Where the court orders the defendant to perform duties of the\ndisposal of hazardous wastes or the restoration to the property the\ncourt may authorize the department to supervise and report to it on the\nconduct of such duties; provided, however, that, section eight of the\ncourt of claims act or any other provision of law to the contrary\nnotwithstanding, the state shall be immune from liability and action\nwith respect to any act or omission done in the exercise of the\ndepartment's authority as so conferred by the court; and provided\nfurther that this subdivision shall not limit any liability which may\notherwise exist for unlawful, willful or malicious acts or omissions on\nthe part of the state, state agencies, or their officers, employees or\nagents.\n (d) In order to most likely assure the disposal of the hazardous\nwastes or the restoration of the property, where there are two or more\ndefendants the court may apportion the costs or assign the performance\nduties of disposal or restoration, or both, between or among the\ndefendants as the interests of justice may appear to the court.\n