NY Pub Health L § 1389-B (2021)
2021 New York Laws PBH - Public Health Article 13 - Nuisances and Sanitation Title 12-A - Inactive Hazardous Waste Disposal Sites 1389-B - Powers of the Commissioner.

§  1389-b. Powers of the commissioner.  1. (a) The department shall be responsible for assessing (i) serious health  problems  at  and  in  the immediate  vicinity  of inactive hazardous waste disposal sites and (ii) any health problems deemed by the department to be related to conditions at such sites.  (b) Section eight of the court of claims act or any other provision of law to the contrary notwithstanding, the  state  shall  be  immune  from liability  and  action  with  respect to any act or omission done in the discharge of the department's responsibility  pursuant  to  this  title; provided,  however,  that this subdivision shall not limit any liability which may otherwise exist for unlawful, willful  or  malicious  acts  or omissions  on  the  part  of  the state, state agencies, their officers, employees or agents, or for ownership or responsibility for the disposal of hazardous waste, including the cost  of  cleanup,  pursuant  to  this section or section 27-1313 of the environmental conservation law.   2. Whenever there is a condition dangerous to life or health resulting from  an  inactive hazardous waste disposal site, the commissioner shall immediately declare the existence of such condition. After the  issuance of any such declaration and throughout the time period during which such a  declaration is effective, the department shall be responsible for (a) monitoring such inactive hazardous waste disposal sites,  (b)  approving proposed  inactive  hazardous  waste disposal site remedial programs for such sites and (c) certifying the completion of inactive hazardous waste disposal site remedial programs for such sites.   3. (a) Whenever the commissioner has issued  such  a  declaration  and throughout the time period during which such a declaration is effective, the   commissioner   may   request  the  commissioner  of  environmental conservation pursuant to paragraph  (b)  of  subdivision  five  of  this section   and   within   the   funds  available  to  the  department  of environmental  conservation  to  develop  an  inactive  hazardous  waste disposal  site remedial program for such site and/or, in addition to any other powers he may have, order the owner of such site and/or any person responsible for the disposal of hazardous wastes at  such  site  (i)  to develop  an  inactive hazardous waste disposal site remedial program for such site subject  to  the  approval  of  the  department  and  (ii)  to implement  such  program  within reasonable time limits specified in the order. Such order shall supersede any order issued by  the  commissioner of  environmental  conservation  pursuant  to  section  27-1313  of  the environmental conservation law.  (b) Whenever the  commissioner  has  issued  such  a  declaration  and further  finds  that  it  would be prejudicial to the public interest to delay action until an opportunity for a hearing can be provided pursuant to this title, the department may request, pursuant to  paragraph  c  of subdivision  five  of this section and within the funds available to the department   of   environmental   conservation,   the   department    of environmental   conservation   to  develop  and  implement  an  inactive hazardous waste disposal site remedial  program  for  such  site.    The finding  required  pursuant  to  this  paragraph  may  be  made  by  the commissioner on an ex parte basis subject to judicial review.   4. Any order issued pursuant to  subdivision  three  of  this  section shall  be  issued  only  after notice and the opportunity for hearing is provided to the persons who may  be  the  subject  of  such  order.  The commissioner  shall  determine which persons are responsible pursuant to said subdivision according to  applicable  principles  of  statutory  or common  law  liability.  Such  persons  shall  be  entitled to raise any statutory or common law defenses at any such hearing and  such  defenses shall have the same force and effect at such hearings as they would have in  a  court  of  law. In the event a hearing is held, no order shall be  issued by the commissioner under subdivision three of this section until a final decision has been rendered. Any such order shall  be  reviewable pursuant  to  article  seventy-eight of the civil practice law and rules within  thirty  days  after  service of said order. The commissioner may request the participation of the attorney general in such hearings.   5. (a) Whenever a person ordered to eliminate a condition dangerous to life or health has failed to do so within  the  time  specified  in  the order,  the  department  of environmental conservation shall develop and implement or cause to  be  implemented,  pursuant  to  a  memorandum  of understanding between the department and the department of environmental conservation, an inactive hazardous waste disposal site remedial program for  such site. The expense of developing and implementing such remedial program by the department, the department of environmental  conservation or  any other state agency shall be paid by the person to whom the order was issued.  (b) In the event that the commissioner has issued a  declaration  that hazardous  wastes  at a site constitute a condition dangerous to life or health,  but  after  a  reasonable  attempt  to  determine  who  may  be responsible  is either unable to determine who may be responsible, or is unable to locate a person who may  be  responsible,  the  department  of environmental   conservation  may  develop  and  implement  an  inactive hazardous waste disposal  site  remedial  program  for  such  site.  The commissioner   shall   make   every   effort,  in  accordance  with  the requirements for notice, hearing and review provided for in this  title, to  secure  appropriate  relief  from  the owner of such site and/or any person responsible for the disposal of hazardous wastes  at  such  site, including,  but  not  limited  to,  development and implementation of an inactive hazardous waste disposal site remedial program, payment of  the cost  of such a program, recovery of any reasonable expenses incurred by the state, money damages and penalties.  (c) Whenever the commissioner  has  made  a  declaration  and  finding pursuant  to  paragraph  (b)  of  subdivision  three of this section the department may request the department of environmental  conservation  to develop and implement an inactive hazardous waste disposal site remedial program  to  contain, alleviate or end the threat to life or health. The commissioner  shall  make  every  effort,   in   accordance   with   the requirements  for notice, hearing and review provided for in this title, to secure appropriate relief from the owner or operator of such site and any person responsible for the disposal  of  hazardous  wastes  at  such site, including but not limited to, development and implementation of an inactive  hazardous waste disposal site remedial program, payment of the cost of such a program, recovery of any reasonable expenses incurred  by the state, money damages and penalties.   6.  Nothing  contained  within  this  section  shall  be  construed as impairing or in any manner affecting the right or  jurisdiction  of  the attorney general to seek appropriate relief pursuant to his statutory or common law authority.   7.  If  the  person  failing  to comply with such order to eliminate a condition dangerous to life or health is a municipality,  commission  or political   subdivision  of  the  state,  the  comptroller  shall,  upon certification by the department subject to the approval of the  director of  the division of the budget of the expense of any action taken by the department, the department of environmental conservation  or  any  other state  agency  pursuant  to  subdivision  five  of this section and upon notification to the affected person, deduct and withhold from  the  next succeeding  allotments,  payments  or apportionments of local assistance aid, other than education  aid,  to  such  municipality,  commission  or political  subdivision  of  the  state an amount or amounts equal to the  amount expended by  the  department,  the  department  of  environmental conservation  or  any  other  state  agency  and not paid. Prior to such approval by the director of the division of  the  budget,  the  director shall  (a)  develop  a schedule of deductions and withholdings that will ensure the  continuity  of  essential  services  by  such  municipality, commission  or  political  subdivision  of the state and (b) give thirty days written notice of such deductions and withholdings to  the  speaker and  minority  leader of the assembly, the majority and minority leaders of the senate and the chairmen  and  ranking  minority  members  of  the senate finance committee and the assembly ways and means committee. Such deductions  or  withholdings will in no case take effect before one full fiscal year of the affected person after the date of  such  approval  by the  director  of  the  division  of  the budget shall have elapsed. The state, by virtue of  such  deductions  or  withholdings,  shall  not  be obligated  to  pay  any  additional or increased allotments, payments or apportionments of state  aid.  Allotments,  payments  or  apportionments withheld  pursuant  to this subdivision shall be credited to the general fund of the state.   8. Moneys for actions taken or to be  taken  by  the  department,  the department  of  environmental  conservation or any other state agency in connection with the elimination  of  conditions  dangerous  to  life  or health  pursuant  to  subdivision  five  of  this section, including any inspection  or  sampling  of  wastes,  soils,  air,  surface  water  and groundwater  done  upon  behalf  of  a  state agency whether or not such action is taken prior to the  issuance  of  a  declaration  pursuant  to subdivision  two  of  this  section,  shall  be payable directly to such agencies from the hazardous waste  remedial  fund  pursuant  to  section ninety-seven-b of the state finance law.