N.Y. Environmental Conservation Law § 27-0923: Special assessments on hazardous wastes generated

§ 27-0923. Special assessments on hazardous wastes generated.

1. On and after June first, nineteen hundred eighty-five, there is

hereby imposed upon every person who is engaged within the state in the

generation of hazardous waste identified or listed pursuant to this

title a special assessment to be determined as follows:

a. Twenty-seven dollars per ton of hazardous waste generated which is

disposed of in a landfill on the site where the waste is generated or

which is designated for removal or removed from the site of generation

for disposal in a landfill or which is designated for removal or removed

from the site of generation for storage prior to disposal in a landfill;

b. Nine dollars per ton of hazardous waste generated which is

designated for removal or removed from the site of generation for

incineration or for storage prior to incineration;

c. Two dollars per ton of hazardous waste generated which is

incinerated on the site where the waste is generated;

d. Sixteen dollars per ton of hazardous waste generated which is

designated for removal or removed from the site of generation for

treatment or disposal, exclusive of disposal in a landfill or by

incineration, or for storage prior to such treatment or disposal;

e. Any residues which are hazardous wastes remaining from the

treatment of hazardous wastes in a facility located on the site where

the wastes are generated, and which are subsequently disposed of or

incinerated on such site or which are subsequently designated for

removal or removed from the site of generation for disposal,

incineration or treatment or for storage prior thereto, shall be subject

to the special assessments imposed by this subdivision. Provided,

however, any residues which are hazardous wastes remaining from the

incineration of hazardous wastes in a facility located on the site where

the wastes are initially generated and which are subsequently disposed

of in a landfill on such site shall not be subject to the special

assessments imposed by this subdivision.

f. Notwithstanding any provision of this section to the contrary, no

special assessment shall be imposed under this section on the generation

of universal wastes. For purposes of this paragraph, "universal wastes"

shall mean those defined and listed in regulations promulgated pursuant

to this title, provided that such wastes are regulated consistent with

rules adopted by the administrator pursuant to RCRA for the management

of universal wastes.

2. On or after June first, nineteen hundred eighty-five, there is

hereby imposed upon persons holding permits or required to hold permits

for the storage, treatment or disposal of hazardous waste pursuant to

section 27-0913 of this title a hazardous waste disposal special

assessment to be determined as follows:

a. Twenty-seven dollars per ton of hazardous waste which is received

for disposal in a landfill or for storage prior to disposal in a

landfill;

b. Nine dollars per ton of hazardous waste which is received for

incineration or for storage prior to incineration;

c. Sixteen dollars per ton of hazardous waste which is received for

treatment or disposal, exclusive of disposal in a landfill or by

incineration, or for storage prior to such treatment or disposal;

d. No special assessment shall be imposed under this subdivision upon

receipt for treatment or disposal, or storage prior thereto of hazardous

waste where such waste was generated by persons subject to the special

assessment under subdivision one of this section.

3. a. Notwithstanding any provision of this section to the contrary,

no special assessment shall be imposed under this section on the

resource recovery of any hazardous waste; provided, however, that any

materials remaining from resource recovery which are hazardous wastes

and which are subsequently disposed of, treated, or incinerated, shall

be subject to the special assessments imposed by this section. For

purposes of this section, resource recovery shall not include the

removal of water from a hazardous waste.

b. In the case of a fraction of a ton, the special assessments imposed

by this section shall be the same fraction of the amount of such special

assessment imposed on a whole ton.

c. For the purpose of this section, generation of hazardous waste

shall not include retrieval or creation of hazardous waste which must be

disposed of under an order of or agreement with the department pursuant

to title thirteen or title fourteen of this article or under a contract

with the department pursuant to title five of article fifty-six of this

chapter or under an order of or agreement with the United States

environmental protection agency or an order of a court of competent

jurisdiction, related to a facility addressed pursuant to the

Comprehensive Environmental Response, Compensation and Liability Act (42

U.S.C. 9601 et seq.) or under a written agreement with a municipality

which has entered into a memorandum of agreement with the department

related to the remediation of brownfield sites as of August fifth, two

thousand ten.

d. No portion of the special assessments collected pursuant to this

section shall be used for any purpose if such use, under federal law,

would preclude the collection of such special assessment.

e. Notwithstanding any provision of this section to the contrary, the

actual method utilized to dispose of or treat any hazardous waste shall

govern the determination of the rate per ton applicable under the

special assessments imposed by this section, even if such hazardous

waste was designated for removal, removed, stored or received for

disposal or treatment by a method different than the method actually

utilized. Where any such special assessment with respect to any

hazardous waste is reported and paid on the basis of a rate per ton

which is greater than the rate per ton applicable to the actual method

utilized to dispose of or treat such hazardous waste, the difference

between the amount reported and paid and the amount due using the rate

per ton applicable to the actual method utilized shall be considered an

overpayment of such special assessment. The commissioner of taxation and

finance shall credit or refund such overpayment in the manner provided

and subject to the conditions contained in article twenty-seven of the

tax law, as incorporated by subdivision six of this section.

f. No special assessment shall be imposed under this section on

hazardous waste generated by or at an elementary or secondary school

provided the waste results from services which are provided:

(i) under a contract with the department, or with the department's

approval and in compliance with department regulations, or pursuant to

an order of the department, the United States environmental protection

agency or a court, related to the cleanup or remediation of a hazardous

materials or hazardous waste spill, discharge, or surficial cleanup,

pursuant to this chapter, other than a removal action pursuant to the

Comprehensive Environmental Response, Compensation and Liability Act (42

U.S.C. 9601 et seq.);

(ii) under a contract with the department for, or with the

department's approval and in compliance with department regulations,

related to the cleanup and removal of a petroleum spill or discharge,

pursuant to subdivision seven of section one hundred seventy-six of the

navigation law;

(iii) under the order of a court, the department or the department of

health, or the United States environmental protection agency related to

an inactive hazardous waste disposal site pursuant to section 27-1313 of

this article, section thirteen hundred eighty-nine-b of the public

health law, or the Comprehensive Environmental Response, Compensation

and Liability Act (42 U.S.C. 9601 et seq.);

(iv) voluntarily and without expectation of monetary compensation in

accordance with subdivision one of section 27-1321 of this article; or

(v) under permit or order requiring corrective action pursuant to this

title or the Resource Conservation and Recovery Act (42 U.S.C. 6901 et

seq.).

4. a. The special assessments imposed by this section shall be

reported and paid to the department of taxation and finance on a

quarterly basis on or before the twentieth day of the month after the

end of each calendar quarter, provided, however, that the special

assessments attributable to the months of June, July, August and

September of nineteen hundred eighty-five shall be due on October

twentieth, nineteen hundred eighty-five. The payments shall be

accompanied by a return in such form as the department of taxation and

finance may prescribe upon consultation with the commissioner. Provided,

however, that no special assessment imposed by this section shall be

required to be reported or paid with respect to any one calendar quarter

if the total amount of all special assessments due for such quarter is

twenty-seven dollars or less.

b. All moneys collected or received by the department of taxation and

finance pursuant to this section shall be deposited daily to the credit

of the comptroller with such responsible banks, banking houses or trust

companies as may be designated by the comptroller. Such deposits shall

be kept separate and apart from all other moneys in the possession of

the comptroller. The comptroller shall require adequate security from

all such depositories. Of the revenues collected under this section, the

comptroller shall retain in his hands such amounts as the commissioner

of taxation and finance may determine to be necessary for refunds under

this section and the comptroller shall pay any refunds to which those

liable for special assessments shall be entitled under the provisions of

this section. The comptroller, after reserving the amount to pay such

refunds, shall, on or before the tenth day of each month, pay all

special assessments, interest and penalties collected under this section

and remaining to his credit in such banks, banking houses or trust

companies at the close of business on the last day of the preceding

month into the hazardous waste remedial fund created pursuant to section

ninety-seven-b of the state finance law. Within thirty days after each

quarterly reporting date, the comptroller shall certify the amount of

special assessments under this section deposited in the hazardous waste

remedial fund during the preceding quarter and the cumulative amount

collected since the start of the current calendar year, and shall submit

such certification to the governor and the chairman of the senate

finance committee and the chairman of the assembly ways and means

committee.

5. The commissioner and the commissioner of taxation and finance shall

have the power to jointly promulgate rules and regulations necessary and

appropriate to carry out the purpose of this section.

6. The provisions of article twenty-seven of the tax law shall apply

to the provisions of this section in the same manner and with the same

force and effect as if the language of such article had been

incorporated in full into this section and had expressly referred to the

special assessments under this section except that the term "special

assessment" or "special assessments" when used in this section shall

mean "tax" or "taxes" for the purpose of the application of article

twenty-seven of the tax law as incorporated by this subdivision and

except to the extent that any provision of such article is either

inconsistent with a provision of this section or is not relevant to this

section.

7. a. If any generator or person subject to assessment by this section

fails or refuses to file a return or furnish any information requested

in writing by the department of taxation and finance, said department

may, from any information in its possession, make an estimate and issue

an assessment against such generator or person and add a penalty of

twenty-five percent of the amount of the assessment so determined. With

respect to such failure or refusal to file a return or furnish any

information, the provisions of paragraph one of subsection (a) and

subsection (g) of section one thousand eighty-five of the tax law shall

not apply.

b. If the assessment imposed by this section or any installment or

portion of the assessment is not paid on or before the date prescribed

for its payment, there shall be collected as a part of the assessment,

interest upon the unpaid amount at the rate of fifteen percent per annum

from the date prescribed for its payment until payment is actually made

to the department of taxation and finance. With respect to interest upon

such unpaid amount, the underpayment rate of interest applicable to

deficiencies, set by the commissioner of taxation and finance pursuant

to subsection (e) of section one thousand ninety-six of the tax law,

shall not apply.