N.Y. Public Health Law § 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.