2013 New York Consolidated Laws
PBH - Public Health
Article 13 - NUISANCES AND SANITATION
Title 12-A - (1389-A - 1389-E) INACTIVE HAZARDOUS WASTE DISPOSAL SITES
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.