N.Y. State Finance Law § 97-b: Hazardous waste remedial fund

§ 97-b. Hazardous waste remedial fund. 1. There is hereby established

in the custody of the state comptroller a nonlapsing revolving fund to

be known as the "hazardous waste remedial fund", which shall consist of

a "site investigation and construction account", an "industry fee

transfer account", an "environmental restoration project account", a

"hazardous waste cleanup account", and a "hazardous waste remediation

oversight and assistance account".

2. Such fund shall consist of all of the following:

(a) moneys appropriated for transfer to the fund's site investigation

and construction account; (b) all fines and other sums accumulated in

the fund prior to April first, nineteen hundred eighty-eight pursuant to

section 71-2725 of the environmental conservation law for deposit in the

fund's site investigation and construction account; (c) all moneys

collected or received by the department of taxation and finance pursuant

to section 27-0923 of the environmental conservation law for deposit in

the fund's industry fee transfer account; (d) all moneys paid into the

fund pursuant to section 72-0201 of the environmental conservation law

which shall be deposited in the fund's industry fee transfer account;

(e) all moneys paid into the fund pursuant to paragraph (b) of

subdivision one of section one hundred eighty-six of the navigation law

which shall be deposited in the fund's industry fee transfer account;

(f) all moneys recovered under sections 56-0503, 56-0505 and 56-0507 of

the environmental conservation law into the fund's environmental

restoration project account; (g) all fees paid into the fund pursuant to

section 72-0402 of the environmental conservation law which shall be

deposited in the fund's industry fee transfer account; (h) payments

received for all state costs incurred in negotiating and overseeing the

implementation of brownfield site cleanup agreements pursuant to title

fourteen of article twenty-seven of the environmental conservation law

shall be deposited in the hazardous waste remediation oversight and

assistance account;(j) other moneys credited or transferred thereto from

any other fund or source for deposit in the fund's site investigation

and construction account.

3. Moneys of the hazardous waste remedial fund, except monies in the

industry fee transfer account, when allocated, shall be available to the

departments of environmental conservation, health and law for the

following purposes:

(a) inactive hazardous waste disposal site remedial programs pursuant

to section 27-1313 of the environmental conservation law and section

thirteen hundred eighty-nine-b of the public health law;

(b) cleaning up or restoring to its original state any area where

hazardous wastes were disposed of or possessed unlawfully in violation

of article twenty-seven of the environmental conservation law. For the

purposes of this section "the original state of the area" shall mean the

reasonably ascertainable condition of the property immediately prior to

the unlawful disposal or, if it is impracticable to determine such

condition, then it is the reasonable environmentally sound condition of

the area;

(c) inactive hazardous waste site identification, classification, and

investigation actions including testing, analyses, record searches, and

other expenditures necessary to develop the state inactive hazardous

waste disposal site remedial plan required pursuant to section 27-1305

of the environmental conservation law;

(d) financing the non-federal share of the cost of clean up and site

remediation activities, as well as post-closure operation and

maintenance costs, pursuant to the federal Comprehensive Environmental

Response, Compensation and Liability Act of 1980;

(e) emergency response action to clean up spills or abate other public

health or environmental hazards involving hazardous wastes, except those

provided for under the New York state environmental protection and spill

compensation fund;

(f) to undertake such remedial measures as the department of

environmental conservation may determine necessary due to environmental

conditions related to the property subject to an agreement to provide

state assistance or contract under title five of article fifty-six of

the environmental conservation law that were unknown to such department

at the time of its approval of such agreement or contract which

indicates that conditions on such property are not sufficiently

protective of human health for its reasonably anticipated uses or due to

information received, in whole or in part, after such department's

approval of such agreement's final engineering report and certification,

which indicates that such agreement's remedial activities are not

sufficiently protective of human health for such property's reasonably

anticipated uses; and, shall provide state assistance under title five

of article fifty-six of the environmental conservation law;

(g) with respect to moneys in the hazardous waste remediation

oversight and assistance account, to pay the reasonable costs incurred

by the state in negotiating and overseeing implementation of brownfield

site cleanup agreements and conducting remediation under title fourteen

of article twenty-seven of the environmental conservation law;

(h) with respect to moneys in the hazardous waste remediation

oversight and assistance account, to provide state assistance pursuant

to section nine hundred seventy-r of the general municipal law;

(i) with respect to moneys in the hazardous waste remediation

oversight and assistance account, non-bondable costs associated with

hazardous waste remediation projects. Such costs shall be limited to

agency staff costs associated with the administration of state

assistance for brownfield opportunity areas pursuant to section nine

hundred seventy-r of the general municipal law, agency staff costs

associated with the administration of technical assistance grants

pursuant to titles thirteen and fourteen of article twenty-seven of the

environmental conservation law, and costs of the department of

environmental conservation related to the geographic information system

required by section 3-0315 of the environmental conservation law;

(j) with respect to moneys in the hazardous waste remediation

oversight and assistance account, technical assistance grants pursuant

to titles thirteen and fourteen of article twenty-seven of the

environmental conservation law;

4. With respect to moneys in the hazardous waste cleanup account, no

moneys shall be available from the fund pursuant to paragraph (a) of

subdivision three of this section unless the commissioner of

environmental conservation finds that all reasonable efforts to secure

voluntary agreement to pay the costs of necessary remedial actions from

owners or operators of inactive hazardous waste sites or other

responsible persons have been made except where the commissioner of

environmental conservation has made findings pursuant to paragraph b of

subdivision three of section 27-1313 of the environmental conservation

law or where; the commissioner of health has declared a condition

dangerous to life or health and made findings pursuant to paragraph (b)

of subdivision three of section one thousand three hundred eighty-nine-b

of the public health law.

6. The commissioner of the department of environmental conservation

shall make all reasonable efforts to recover the full amount of any

funds expended from the fund pursuant to paragraph (a) and paragraph (l)

of subdivision three of this section through litigation or cooperative

agreements with responsible persons. Any and all moneys recovered or

reimbursed pursuant to this section through voluntary agreements or

court orders shall be deposited with the comptroller and credited to the

account of such fund from which such expenditures were made.

7. Notwithstanding the provisions of any general or special law, no

moneys shall be available from the fund until a certificate of

allocation and a schedule of amounts to be available therefor shall have

been issued by the director of the budget, and a copy of such

certificate filed with the comptroller, the chairman of the senate

finance committee and the chairman of the assembly ways and means

committee. Such certificate may be amended from time to time by the

director of the budget and a copy of each such amendment shall be filed

with the comptroller, the chairman of the senate finance committee and

the chairman of the assembly ways and means committee.

8. The moneys, when allocated, shall be paid out of the fund on the

audit and warrant of the comptroller on vouchers certified or approved

by the commissioner of the department of environmental conservation or

his duly designated officer.

9. All repayments and other sums collected or received by the

department pursuant to loan agreements entered into pursuant to title

five of article fifty-two of the environmental conservation law 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. The comptroller shall require adequate security from all

such depositories. The comptroller shall, on or before the tenth day of

each month, pay all moneys collected pursuant to such title 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

site investigation and construction account of the hazardous waste

remedial fund. In the event a municipality shall fail to make any

payment due to the state pursuant to such title and the commissioner

shall have certified that such municipality has failed to make such

payment, the comptroller is authorized and shall withhold from such

municipality any state aid payable to it to the extent necessary to meet

the certified amount of principal and surcharge due the commissioner and

shall immediately pay over to the design and construction account of the

hazardous waste remedial fund the amount so withheld.

10. No moneys of the fund derived from any form of tax or fee imposed

by title nine of article twenty-seven or article seventy-two of the

environmental conservation law or section one hundred seventy-four of

the navigation law shall be used for any purpose if such use, under

federal law, would preclude the collection of such tax or fee.

11. The industry fee transfer account, established pursuant to

subdivision one of this section, is to provide for an equal sharing

between the state and industry of the costs of debt service for bonds

and notes issued to finance hazardous waste remedial work other than

those costs attributable to or payable by responsible parties, a

municipality or the federal government. Such sharing shall be provided

fifty percent from moneys of the general fund and fifty percent from

fees and surcharges designated for this purpose pursuant to subdivisions

two and fourteen of this section. When debt service is paid on bonds and

notes authorized by the environmental quality bond act of 1986 and sold

to provide moneys for hazardous waste site remediation or by section

twelve hundred eighty-five-q of the public authorities law, the

comptroller shall transfer from the industry fee transfer account to the

general fund an amount equal to fifty percent of such debt service

payment.

12. (a) The comptroller shall, on July first, nineteen hundred

eighty-eight and on each succeeding July first until such time as the

surcharges required pursuant to subdivision fourteen of this section are

imposed, estimate the amount of revenues to be received by the industry

fee transfer account of this fund in the next succeeding twenty months

and the transfers which will be required to be made during the same

period. When calculating the estimate of industry fee transfer account

revenues available for the purpose of certifying, pursuant to this

subdivision, when such account's balance will be insufficient to make

the transfer required by subdivision eleven of this section, the

comptroller shall add to the amount estimated to actually be available

an additional credit factor as determined by paragraph (b) of this

subdivision. If the comptroller determines that the industry fee

transfer account will, at any time during the succeeding twenty month

period, lack sufficient funds to make the transfer required by

subdivision eleven of this section, the comptroller shall so certify to

the state super fund management board, created pursuant to section

27-1319 of the environmental conservation law, and to the governor and

the legislature.

(b) The additional credit factor required by paragraph (a) of this

subdivision shall be the sum of the following:

(i) prior to March thirty-first, nineteen hundred ninety-eight, an

amount equal to an amount estimated by the comptroller to be transferred

from the industry fee transfer account to the general fund during the

period March thirty-first, nineteen hundred ninety through March

thirty-first, nineteen hundred ninety-eight, pursuant to chapter

forty-one of the laws of nineteen hundred ninety as amended by chapter

one hundred sixty-six of the laws of nineteen hundred ninety-one,

chapter fifty-five of the laws of nineteen hundred ninety-two, chapter

fifty-seven of the laws of nineteen hundred ninety-three, chapter one

hundred seventy of the laws of nineteen hundred ninety-four, chapter

eighty-three of the laws of nineteen hundred ninety-five, chapter three

hundred nine of the laws of nineteen hundred ninety-six and a chapter of

the laws of nineteen hundred ninety-seven entitled "An act making

appropriations for the support of government and to amend chapter 63 of

the laws of 1996 relating to making appropriations for the support of

government, in relation to extending the effectiveness thereof; to amend

chapter 30 of the laws of 1996, relating to a retirement incentive, in

relation to payment schedules; to amend chapter 41 of the laws of 1990,

relating to authorizing and directing the transfer of hazardous waste

remedial fund industry fee transfer account balances and receipts to the

general fund, and the state finance law, in relation to industry fee

surcharges and the calculations relating thereto; to amend chapter 83 of

the laws of 1995, amending the state finance law and other laws relating

to state finances, in relation to the deposit of funds; and to authorize

the transfer and deposit of various moneys," which is in excess of

amounts estimated to be needed to make the transfers required by

subdivision eleven of this section during the same period and, after

March thirty-first, nineteen hundred ninety-eight, an amount equal to

the amount actually transferred from the industry fee transfer account

to the general fund during the period March thirty-first, nineteen

hundred ninety through March thirty-first, nineteen hundred

ninety-eight, pursuant to chapter forty-one of the laws of nineteen

hundred ninety, as amended by chapter one hundred sixty-six of the laws

of nineteen hundred ninety-one, chapter fifty-five of the laws of

nineteen hundred ninety-two, chapter fifty-seven of the laws of nineteen

hundred ninety-three, chapter one hundred seventy of the laws of

nineteen hundred ninety-four, chapter eighty-three of the laws of

nineteen hundred ninety-five, chapter three hundred nine of the laws of

nineteen hundred ninety-six and a chapter of the laws of nineteen

hundred ninety-seven entitled "AN ACT making appropriations for the

support of government and to amend chapter 63 of the laws of 1996

relating to making appropriations for the support of government, in

relation to extending the effectiveness thereof; to amend chapter 30 of

the laws of 1996, relating to a retirement incentive, in relation to

payment schedules; to amend chapter 41 of the laws of 1990, relating to

authorizing and directing the transfer of hazardous waste remedial fund

industry fee transfer account balances and receipts to the general fund,

and the state finance law, in relation to industry fee surcharges and

the calculations relating thereto; to amend chapter 83 of the laws of

1995, amending the state finance law and other laws relating to state

finances, in relation to the deposit of funds; and to authorize the

transfer and deposit of various moneys," which was in excess of the

amount required to be transferred during the same period pursuant to

subdivision eleven of this section; except that the comptroller shall

reduce this amount by an amount equal to the amount which would have

been debited against such calculated balance during the prior estimating

periods for transfers pursuant to subdivision eleven of this section, if

the amount transferred from the industry fee transfer account to the

general fund pursuant to chapter forty-one of the laws of nineteen

hundred ninety, as amended by chapter one hundred sixty-six of the laws

of nineteen hundred ninety-one, chapter fifty-five of the laws of

nineteen hundred ninety-two, chapter fifty-seven of the laws of nineteen

hundred ninety-three, chapter one hundred seventy of the laws of

nineteen hundred ninety-four, chapter eighty-three of the laws of

nineteen hundred ninety-five, chapter three hundred nine of the laws of

nineteen hundred ninety-six and a chapter of the laws of nineteen

hundred ninety-seven entitled "AN ACT making appropriations for the

support of government and to amend chapter 63 of the laws of 1996

relating to making appropriations for the support of government, in

relation to extending the effectiveness thereof; to amend chapter 30 of

the laws of 1996, relating to a retirement incentive, in relation to

payment schedules; to amend chapter 41 of the laws of 1990, relating to

authorizing and directing the transfer of hazardous waste remedial fund

industry fee transfer account balances and receipts to the general fund,

and the state finance law, in relation to industry fee surcharges and

the calculations relating thereto; to amend chapter 83 of the laws of

1995, amending the state finance law and other laws relating to state

finances, in relation to the deposit of funds; and to authorize the

transfer and deposit of various moneys," had been left on deposit in the

industry fee transfer account, and had been the only amount available to

cover the transfers which would have been made pursuant to subdivision

eleven of this section if an actual balance had been available in the

industry fee transfer account at such time.

(ii) an amount, as estimated by the comptroller, equal to the amount

of interest which would otherwise have been earned on the amount

determined by subparagraph (i) of this paragraph, if such amount had

been left on deposit in the industry fee transfer account and accrued

through the period for which the comptroller is estimating the available

account balances pursuant to paragraph (a) of this subdivision.

13. Upon the receipt of a certification provided pursuant to

subdivision twelve of this section, the state superfund management board

shall review and analyze the historical pattern of revenue received by

the industry fee transfer account and the long term projection of future

transfers from such account, and shall report on or before December

first of such year to the governor and the legislature its

recommendations, if any, as to the sources of additional revenues which

could be used to supplement the revenues to be received by such fund in

order to achieve the equal sharing of debt service costs as implemented

in subdivision nine of this section.

14. In the absence of further direction by law, effective April first

of the fiscal year immediately following the certification by the

comptroller made pursuant to subdivision twelve of this section,

surcharges in the following amount shall be imposed: (a) twenty-five

percent of the fees imposed by sections 72-0402 and 72-0502 of the

environmental conservation law. Notwithstanding any other provision of

law to the contrary, moneys collected from such surcharge shall be

deposited in their entirety to the industry fee transfer account

established pursuant to subdivision one of this section; (b) fifty

percent of the fees imposed by section 27-0923 of the environmental

conservation law, except for those fees contained in paragraphs b and c

of subdivision one, and paragraph b of subdivision two of such section,

which shall be exempt from such surcharge. Moneys collected from such

surcharge shall be deposited to the industry fee transfer account

established pursuant to subdivision one of this section.

15. On and after the date of such certification, the comptroller shall

maintain records with respect to such account to reflect each unpaid

transfer for the period during which it is unpaid. On and after such

date, any deposits in the industry fee transfer account shall be

immediately transferred to the general fund of the state until an amount

equal to the total of any unpaid transfers and accumulated interest

shall have been transferred to the general fund.