N.Y. Environmental Conservation Law § 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 department shall prioritize implementation of remedial

programs in accordance with subdivision five of section 27-1305 of this

title. 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 response costs, natural resource

damages and penalties.

c. (i) 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:

(A) the technological feasibility of all actions;

(B) the nature of the danger to human health and the environment which

the actions are designed to address; and

(C) 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, including if the actions would benefit a disadvantaged

community.

(ii) In implementing this title, the department shall consult with

appropriate representatives of Indian nations on environmental and

cultural resource issues related to this title of concern to either the

department or Indian nations.

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, response costs, natural

resource 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, groundwater, or other

natural resources, 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 section

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.