NY Env Conserv L § 27-1313 (2021)
2021 New York Laws ENV - Environmental Conservation Article 27 - Collection, Treatment and Disposal of Refuse and Other Solid Waste Title 13 - Inactive Hazardous Waste Disposal Sites 27-1313 - Remedial Programs.

§ 27-1313. Remedial programs.   1.  a.  The  department  shall  be  responsible,  as  provided in this section, for inactive hazardous waste disposal  site  remedial  programs except  as  provided in section one thousand three hundred eighty-nine-b of the public health law.   b. The department shall have the authority to require the  development and  implementation  of  a  department-approved inactive hazardous waste disposal site remedial program.   c. 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 aforesaid responsibility pursuant to this section; provided, however, that this  paragraph  shall  not  limit  the liability  which  may otherwise exist for unlawful, willful or malicious acts or omissions on the part of the state,  state  agencies,  or  their officers,  employees  or  agents; or for the ownership or responsibility for the disposal of hazardous waste,  including  the  cost  of  cleanup, pursuant to this section.   2.  The  department  shall  have  the  authority  (a) to delegate such responsibility for a specific site to the  municipality  in  which  such site  is  located  and (b) to contract with the environmental facilities corporation and any other person to perform necessary work in connection with such sites.   3. a. Whenever the commissioner finds  that  hazardous  wastes  at  an inactive  hazardous  waste disposal site constitute a significant threat to the environment, he may 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, subject to the approval of the department, at such  site,  and  (ii)  to implement  such  program  within reasonable time limits specified in the order. Provided, however, that in the event the commissioner  of  health shall  issue  an  order  pursuant  to  subdivision  three of section one thousand three hundred eighty-nine-b of  the  public  health  law,  such order  of  the  commissioner  of health shall supersede any order issued hereunder.   b. Whenever the commissioner, after investigation, finds:  (i) that hazardous wastes at an inactive hazardous waste disposal site constitutes a significant threat to the environment; and  (ii) that such threat is causing or presents  an  imminent  danger  of causing irreversible or irreparable damage to the environment; and  (iii)  the threat makes it prejudicial to the public interest to delay action until  a  hearing  can  be  held  pursuant  to  this  title,  the department  may,  pursuant  to  paragraph  c of subdivision five of this section and within the funds available to the  department,  develop  and implement an inactive hazardous waste disposal site remedial program for such  site.  Findings  required  pursuant  to this paragraph shall be in writing and 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 a hearing is provided  to  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 defense 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 such  order.  The  commissioner  may request the participation of the attorney general in such hearings.   5.  a.  Whenever  a  person  ordered  to  eliminate  a  threat  to the environment pursuant to paragraph a of subdivision three of this section has failed to do so within the time limits specified in the  order,  the department  may  develop  and  implement  an  inactive  hazardous  waste disposal site remedial program for such site. The reasonable expenses of developing and implementing such  remedial  program  by  the  department shall  be  paid by the person to whom the order was issued and the state may seek to recover such reasonable expenses in any court of appropriate jurisdiction.   b. In the event that the commissioner has found that hazardous  wastes at  a site constitute a significant threat to the environment, 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 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 any person subsequently identified  or located  who  is responsible for the disposal of hazardous waste 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 findings pursuant to paragraph b of subdivision three of this section or the commissioner of  health  has made  a declaration and finding pursuant to paragraph (b) of subdivision three of section one thousand three hundred eighty-nine-b of the  public health  law,  the  department  may  develop  and  implement  an inactive hazardous waste disposal site remedial program to contain, alleviate  or end  the  threat  to  life  or  health  or to the environment. The costs incurred by the department in developing and implementing such a program shall be in an amount commensurate with the actions the department deems necessary to eliminate such danger. In determining the scope, nature and content of such program, the department shall consider among others, the following factors:  (i) the technological feasibility of all actions;  (ii) the nature of the danger to  human  health  and  the  environment which the actions are designed to address; and  (iii)  the  extent  to  which  the actions would reduce such danger to human health or the environment or would otherwise benefit human  health or the environment.   d.  Notwithstanding  the  provisions of subdivision c of this section, the department shall be authorized to develop and implement an  inactive hazardous  waste  disposal site remedial program at the site pursuant to this subdivision  if,  in  the  discretion  of  the  department,  it  is cost-effective  for  the  department  to  develop  and  implement such a remedial program. The goal of any  such  remedial  program  shall  be  a complete  cleanup of the site through the elimination of the significant threat to the environment posed by the disposal of hazardous  wastes  at the  site  and  of  the  imminent  danger of irreversible or irreparable damage to the environment caused by such disposal.  The  factors  to  be considered by the department in determining whether it is cost-effective to  develop  and  implement  an  inactive  hazardous waste disposal site  remedial program at a site pursuant to this subdivision  shall  include, among others:  (i)  the  ability of the department to determine, through the exercise of its scientific judgment, whether  the  elimination  of  the  imminent danger  of  irreversible or irreparable damage to the environment can be achieved through limited actions;  (ii) the ability of the department to identify the owner of  the  site and/or  any  person  responsible for the disposal of hazardous wastes at such site with sufficient financial resources to develop  and  implement an inactive hazardous waste disposal site remedial program at such site;  (iii)  the  nature  of  the danger to human health and the environment which the actions are designed to address; and  (iv) the extent to which the actions would reduce such danger to human health or the environment or would otherwise benefit human health or the environment.   e. Whenever the commissioner of health makes a declaration and finding pursuant to paragraph b of subdivision three  of  section  one  thousand three hundred eighty-nine-b of the public health law, the department may implement  an inactive hazardous waste site remedial program in the same manner as specified in paragraphs c and d of this subdivision.   f. 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/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  program,  recovery  of  any reasonable expenses incurred by the state, money damages and penalties.   g.  When  a  municipality  develops  and  implements  pursuant  to  an agreement  with the department an inactive hazardous waste disposal site remedial program as approved by the department for a site which is owned or has been operated  by  such  municipality  or  when  the  department, pursuant  to  an  agreement with a municipality, develops and implements such a remedial program, the commissioner shall,  in  the  name  of  the state,  agree  in  such  agreement  to  provide from the hazardous waste remedial  fund,  within  the  limitations  of  appropriations  therefor, seventy-five  percent  of  the eligible design and construction costs of such remedial program for  which  such  municipality  is  liable  solely because of its ownership and/or operation of such site and which are not recovered  from  or  reimbursed  or  paid  by a responsible party or the federal government.   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. Moneys for actions taken or to be  taken  by  the  department,  the department  of  health  or any other state agency in connection with the elimination of conditions  dangerous  to  life  or  health  pursuant  to subdivision five of section thirteen hundred eighty-nine-b of the public health  law  or  with  the  elimination  of  a significant threat to the environment pursuant to 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. This includes any inspection or sampling of wastes, soils, air, surface water and  groundwater  done  on behalf  of  a  state agency whether or not such action is taken prior to the issuance of a declaration pursuant to  subdivision  two  of  section thirteen  hundred  eighty-nine-b  of  the public health law or a finding  pursuant to subdivision three of this  seciton  and  any  administrative expenses related thereto.   8.  Any  duly  designated officer or employee of the department or any other state agency, and any  agent,  consultant,  contractor,  or  other person,  including  an  employee,  agent, consultant, or contractor of a responsible person  acting  at  the  direction  of  the  department,  so authorized  in  writing  by  the  commissioner,  may  enter any inactive hazardous waste disposal site and areas near such site to  implement  an inactive  hazardous  waste disposal site remedial program for such site, provided the commissioner has sent a written notice  to  the  owners  of record  or  any  known  occupants  of  such  site or nearby areas of the intended entry and work at least ten days prior to such initial entry.   9. Nothing herein contained shall be construed  to  limit  or  in  any manner  affect the power of the commissioner to issue an order according to the provisions of section 71-2727 of this chapter.   10.  The  department,  by  and  through  the  commissioner,  shall  be authorized  to  exempt a person from the requirement to obtain any state or local permit or  other  authorization  for  any  activity  needed  to implement  an  inactive  hazardous  waste disposal site remedial program pursuant to this title; provided, that the activity is  conducted  in  a manner which satisfies all substantive technical requirements applicable to like activity conducted pursuant to a permit.