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Legislative Memo

BILL:

A.714 (Pretlow)

Support

SUBJECT:

Criminal Penalties for “Endangering Public Health”

 

DATE:

February 20, 2004

 

The Business Council opposes this legislation that would increase criminal penalties related to the release, possession, sale and transportation of hazardous substances.

Under section 1 of this bill, penalties for the criminal act of “endangering the environment” would be increased by one “step” or “degree” if the defendant had previously been convicted of a similar crime within the previous ten years.

For example, under this bill a person that is convicted of the criminally negligent release of more than five gallons or fifty pounds (whichever is less) of a hazardous substance into the environment would be guilty of “endangering the environment in the fourth degree,” a Class A misdemeanor if they had previously been convicted of any substance release crime within the previous ten years. A class A misdemeanor is subject to penalties of up to one years' imprisonment. In comparison, under existing law this would constitute “endangering the environment in the fifth degree,” and both the initial and any subsequent violations would be a class B misdemeanor — punishable by penalties of up to $10,000 in fines and up to three months' imprisonment.

We doubt that these existing penalties — including those for violations “in the fifth degree” — are viewed simply as “a cost of doing business,” or fail to serve as a deterrent to a repeat criminal violator, if they are being effectively imposed. This is especially true considering that, under existing law, penalties increase significantly for more serious criminal violations. For example, “endangering the environment in the first degree” is a Class C felony, which can result in up to 15 years' imprisonment.

Under section 2 of this bill, existing criminal penalties for the unlawful handling of hazardous wastes would be expanded to include the unlawful possession, transportation or sale handling of hazardous substances. Our concern with this provision is that — other than those related to chemical bulk storage facilities — there are no legal requirements under the Environmental Conservation Law regarding the possession, sale or transportation of hazardous substances. Therefore, other than establishing another set of criminal penalties related to the state's chemical bulk storage program, it is unclear what is being criminalized under this provision.

With regard to the disposal of a hazardous substance, in many cases this discarded material would be considered a hazardous waste under ECL Article 27, Title 9, and any illegal or unauthorized disposal would be subject to civil and criminal enforcement provisions established in ECL Section 71-2705. Under that enforcement provision, the releases of hazardous wastes of any volume or weight in a manner that violates the state's industrial hazardous waste management statute or regulations, and that involves any of the culpable mental states in Penal Law 15.05, is an unclassified misdemeanor with criminal penalties up to $25,000 and imprisonment of up to one year for initial convictions, and penalties of up to $50,000 and imprisonment of up to two years for a second conviction, regardless of the timing of the second conviction.

It is our view that, in both of these cases, the Department of Environmental Conservation already has significant civil and criminal enforcement authority under existing law. For these reasons, The Business Council respectfully opposes A.714.