N.Y. Environmental Conservation Law § 27-1329: Abatement actions

§ 27-1329. Abatement actions.

1. (a) Maintenance, jurisdiction, etc. When the commissioner, after

investigation, determines that there may be an imminent danger to the

health or welfare of the people of the state or the environment, or an

actual or threatened release of hazardous waste from an inactive

hazardous waste disposal site, as defined in clauses (i) and (ii),

respectively, of subparagraph one of paragraph b of subdivision two of

section 27-1305 of this title, is resulting in or is likely to result in

irreversible or irreparable damage to natural resources, the

commissioner may request the attorney general to secure such relief as

may be necessary to abate such danger or threat and to grant such relief

as the public interest and the equities of the case may require. The

commissioner may issue such orders as may be necessary to protect public

health and welfare and the environment, provided the commissioner has a

reasonable belief that persons responsible for implementing such orders

have adequate financial resources to comply, there is evidence

sufficient to support liability of such person, and the department has

made all reasonable efforts to secure voluntary agreement of such person

to abate the imminent danger or threat.

(b) Any such person may request a meeting with the department to

discuss reconsideration of an order, within five business days of

receiving such order, if such person believes they are not liable. Such

request shall include a description of the reason why such person

believes they are not liable and any supporting documentation. The

department shall make all practicable efforts to hold such meeting

within five business days of receiving such request and shall consider

its evidence of such person's liability in light of any information and

documentation provided.

(c) Any such order issued by the commissioner shall be a final

determination of the department and subject to challenge pursuant to

article seventy-eight of the civil practice law and rules.

(d) No action may be taken under paragraph (a) of this subdivision

against a bona fide prospective purchaser, as defined in subdivision

five of section 27-1323 of this title.

2. Fines; reimbursement. (a) Any person who, without sufficient cause,

fails or refuses to comply with any order of the commissioner under

subdivision one of this section may, in an action brought in the

appropriate court of competent jurisdiction to enforce such order, be

fined not more than thirty-seven thousand five hundred dollars for each

day in which such violation occurs or such failure to comply continues.

(b) (i) Any person who receives and complies with the terms of any

order issued under subdivision one of this section may, within sixty

days after completion of the required action, petition the commissioner

for reimbursement from the hazardous waste remedial fund pursuant to

section ninety-seven-b of the state finance law for the reasonable costs

of such action, plus interest. Any interest payable under this

subparagraph shall accrue on the amounts expended from the date of

expenditure at the same rate as specified for interest on investments of

the hazardous substance superfund established under subchapter A of

chapter 98 of title 26 of the federal comprehensive environmental

response, compensation, and liability act.

(ii) If the commissioner refuses to grant all or part of a petition

made under this paragraph, the petitioner may within thirty days of

receipt of such refusal file an action against the department pursuant

to article seventy-eight of the civil practice law and rules.

(iii) Except as provided in subparagraph (iv) of this paragraph, to

obtain reimbursement, the petitioner shall establish by a preponderance

of the evidence that such petitioner is not liable for response costs

under section 27-1313 of this title and that costs for which such

petitioner seeks reimbursement are reasonable in light of the action

required by the relevant order.

(iv) A petitioner under subparagraph (i) of this paragraph may also

recover its reasonable costs of response to the extent that such

petitioner can demonstrate, on the administrative record, that the

commissioner's decision in selecting the response action ordered was

arbitrary and capricious or was otherwise not in accordance with law.

Reimbursement awarded under this subparagraph shall include all

reasonable response costs incurred by the petitioner pursuant to the

portions of the order found to be arbitrary and capricious or otherwise

not in accordance with law.

(v) Reimbursement awarded by a court under subparagraph (iii) or (iv)

of this paragraph may include appropriate costs, fees, and other

expenses in accordance with section eighty-six hundred one of the civil

practice law and rules.

3. The commissioner shall provide notice of the provisions of this

section to known responsible persons at sites listed in clauses (i) and

(ii) of subparagraph one of paragraph b of subdivision two of section

27-1305 of this title, within six months of the effective date of the

chapter of the laws of two thousand twenty-five which added this

section, if the commissioner intends to issue an order to such

responsible persons. No such orders shall be issued within a one-year

period after the effective date of the chapter of the laws of two

thousand twenty-five which added this section.