§ 27-1313 — Remedial programs

§ 27-1313. Remedial programs.\n 1. a. The department shall be responsible, as provided in this\nsection, for inactive hazardous waste disposal site remedial programs\nexcept as provided in section one thousand three hundred eighty-nine-b\nof the public health law.\n b. The department shall have the authority to require the development\nand implementation of a department-approved inactive hazardous waste\ndisposal site remedial program.\n c. Section eight of the court of claims act or any other provision of\nlaw to the contrary notwithstanding, the state shall be immune from\nliability and action with respect to any act or omission done in the\ndischarge of the department's aforesaid responsibility pursuant to this\nsection; provided, however, that this paragraph shall not limit the\nliability which may otherwise exist for unlawful, willful or malicious\nacts or omissions on the part of the state, state agencies, or their\nofficers, employees or agents; or for the ownership or responsibility\nfor the disposal of hazardous waste, including the cost of cleanup,\npursuant to this section.\n 2. The department shall have the authority (a) to delegate such\nresponsibility for a specific site to the municipality in which such\nsite is located and (b) to contract with the environmental facilities\ncorporation and any other person to perform necessary work in connection\nwith such sites.\n 3. a. Whenever the commissioner finds that hazardous wastes at an\ninactive hazardous waste disposal site constitute a significant threat\nto the environment, he may order the owner of such site and/or any\nperson responsible for the disposal of hazardous wastes at such site (i)\nto develop an inactive hazardous waste disposal site remedial program,\nsubject to the approval of the department, at such site, and (ii) to\nimplement such program within reasonable time limits specified in the\norder. Provided, however, that in the event the commissioner of health\nshall issue an order pursuant to subdivision three of section one\nthousand three hundred eighty-nine-b of the public health law, such\norder of the commissioner of health shall supersede any order issued\nhereunder.\n b. Whenever the commissioner, after investigation, finds:\n (i) that hazardous wastes at an inactive hazardous waste disposal site\nconstitutes a significant threat to the environment; and\n (ii) that such threat is causing or presents an imminent danger of\ncausing irreversible or irreparable damage to the environment; and\n (iii) the threat makes it prejudicial to the public interest to delay\naction until a hearing can be held pursuant to this title, the\ndepartment may, pursuant to paragraph c of subdivision five of this\nsection and within the funds available to the department, develop and\nimplement an inactive hazardous waste disposal site remedial program for\nsuch site. Findings required pursuant to this paragraph shall be in\nwriting and may be made by the commissioner on an ex parte basis subject\nto judicial review.\n 4. Any order issued pursuant to subdivision three of this section\nshall be issued only after notice and the opportunity for a hearing is\nprovided to persons who may be the subject of such order. The\ncommissioner shall determine which persons are responsible pursuant to\nsaid subdivision according to applicable principles of statutory or\ncommon law liability. Such persons shall be entitled to raise any\nstatutory or common law defense at any such hearing and such defenses\nshall have the same force and effect at such hearings as they would have\nin a court of law. In the event a hearing is held, no order shall be\nissued by the commissioner under subdivision three of this section until\na final decision has been rendered. Any such order shall be reviewable\npursuant to article seventy-eight of the civil practice law and rules\nwithin thirty days after service of such order. The commissioner may\nrequest the participation of the attorney general in such hearings.\n 5. a. Whenever a person ordered to eliminate a threat to the\nenvironment pursuant to paragraph a of subdivision three of this section\nhas failed to do so within the time limits specified in the order, the\ndepartment may develop and implement an inactive hazardous waste\ndisposal site remedial program for such site. The reasonable expenses of\ndeveloping and implementing such remedial program by the department\nshall be paid by the person to whom the order was issued and the state\nmay seek to recover such reasonable expenses in any court of appropriate\njurisdiction.\n b. In the event that the commissioner has found that hazardous wastes\nat a site constitute a significant threat to the environment, but after\na reasonable attempt to determine who may be responsible is either\nunable to determine who may be responsible, or is unable to locate a\nperson who may be responsible, the department may develop and implement\nan inactive hazardous waste disposal site remedial program for such\nsite. The department shall prioritize implementation of remedial\nprograms in accordance with subdivision five of section 27-1305 of this\ntitle. The commissioner shall make every effort, in accordance with the\nrequirements for notice, hearing and review provided for in this title,\nto secure appropriate relief from any person subsequently identified or\nlocated who is responsible for the disposal of hazardous waste at such\nsite, including, but not limited to response costs, natural resource\ndamages and penalties.\n c. (i) Whenever the commissioner has made findings pursuant to\nparagraph b of subdivision three of this section or the commissioner of\nhealth has made a declaration and finding pursuant to paragraph (b) of\nsubdivision three of section one thousand three hundred eighty-nine-b of\nthe public health law, the department may develop and implement an\ninactive hazardous waste disposal site remedial program to contain,\nalleviate or end the threat to life or health or to the environment. The\ncosts incurred by the department in developing and implementing such a\nprogram shall be in an amount commensurate with the actions the\ndepartment deems necessary to eliminate such danger. In determining the\nscope, nature and content of such program, the department shall consider\namong others, the following factors:\n (A) the technological feasibility of all actions;\n (B) the nature of the danger to human health and the environment which\nthe actions are designed to address; and\n (C) the extent to which the actions would reduce such danger to human\nhealth or the environment or would otherwise benefit human health or the\nenvironment, including if the actions would benefit a disadvantaged\ncommunity.\n (ii) In implementing this title, the department shall consult with\nappropriate representatives of Indian nations on environmental and\ncultural resource issues related to this title of concern to either the\ndepartment or Indian nations.\n d. Notwithstanding the provisions of subdivision c of this section,\nthe department shall be authorized to develop and implement an inactive\nhazardous waste disposal site remedial program at the site pursuant to\nthis subdivision if, in the discretion of the department, it is\ncost-effective for the department to develop and implement such a\nremedial program. The goal of any such remedial program shall be a\ncomplete cleanup of the site through the elimination of the significant\nthreat to the environment posed by the disposal of hazardous wastes at\nthe site and of the imminent danger of irreversible or irreparable\ndamage to the environment caused by such disposal. The factors to be\nconsidered by the department in determining whether it is cost-effective\nto develop and implement an inactive hazardous waste disposal site\nremedial program at a site pursuant to this subdivision shall include,\namong others:\n (i) the ability of the department to determine, through the exercise\nof its scientific judgment, whether the elimination of the imminent\ndanger of irreversible or irreparable damage to the environment can be\nachieved through limited actions;\n (ii) the ability of the department to identify the owner of the site\nand/or any person responsible for the disposal of hazardous wastes at\nsuch site with sufficient financial resources to develop and implement\nan inactive hazardous waste disposal site remedial program at such site;\n (iii) the nature of the danger to human health and the environment\nwhich the actions are designed to address; and\n (iv) the extent to which the actions would reduce such danger to human\nhealth or the environment or would otherwise benefit human health or the\nenvironment.\n e. Whenever the commissioner of health makes a declaration and finding\npursuant to paragraph b of subdivision three of section one thousand\nthree hundred eighty-nine-b of the public health law, the department may\nimplement an inactive hazardous waste site remedial program in the same\nmanner as specified in paragraphs c and d of this subdivision.\n f. The commissioner shall make every effort, in accordance with the\nrequirements for notice, hearing and review provided for in this title\nto secure appropriate relief from the owner or operator of such site\nand/or any person responsible for the disposal of hazardous wastes at\nsuch site, including, but not limited to, response costs, natural\nresource damages, and penalties.\n g. When a municipality develops and implements pursuant to an\nagreement with the department an inactive hazardous waste disposal site\nremedial program as approved by the department for a site which is owned\nor has been operated by such municipality or when the department,\npursuant to an agreement with a municipality, develops and implements\nsuch a remedial program, the commissioner shall, in the name of the\nstate, agree in such agreement to provide from the hazardous waste\nremedial fund, within the limitations of appropriations therefor,\nseventy-five percent of the eligible design and construction costs of\nsuch remedial program for which such municipality is liable solely\nbecause of its ownership and/or operation of such site and which are not\nrecovered from or reimbursed or paid by a responsible party or the\nfederal government.\n 6. Nothing contained within this section shall be construed as\nimpairing or in any manner affecting the right or jurisdiction of the\nattorney general to seek appropriate relief pursuant to his statutory or\ncommon law authority.\n 7. Moneys for actions taken or to be taken by the department, the\ndepartment of health or any other state agency in connection with the\nelimination of conditions dangerous to life or health pursuant to\nsubdivision five of section thirteen hundred eighty-nine-b of the public\nhealth law or with the elimination of a significant threat to the\nenvironment pursuant to this section shall be payable directly to such\nagencies from the hazardous waste remedial fund pursuant to section\nninety-seven-b of the state finance law. This includes any inspection or\nsampling of wastes, soils, air, surface water, groundwater, or other\nnatural resources, done on behalf of a state agency whether or not such\naction is taken prior to the issuance of a declaration pursuant to\nsubdivision two of section thirteen hundred eighty-nine-b of the public\nhealth law or a finding pursuant to subdivision three of this section\nand any administrative expenses related thereto.\n 8. Any duly designated officer or employee of the department or any\nother state agency, and any agent, consultant, contractor, or other\nperson, including an employee, agent, consultant, or contractor of a\nresponsible person acting at the direction of the department, so\nauthorized in writing by the commissioner, may enter any inactive\nhazardous waste disposal site and areas near such site to implement an\ninactive hazardous waste disposal site remedial program for such site,\nprovided the commissioner has sent a written notice to the owners of\nrecord or any known occupants of such site or nearby areas of the\nintended entry and work at least ten days prior to such initial entry.\n 9. Nothing herein contained shall be construed to limit or in any\nmanner affect the power of the commissioner to issue an order according\nto the provisions of section 71-2727 of this chapter.\n 10. The department, by and through the commissioner, shall be\nauthorized to exempt a person from the requirement to obtain any state\nor local permit or other authorization for any activity needed to\nimplement an inactive hazardous waste disposal site remedial program\npursuant to this title; provided, that the activity is conducted in a\nmanner which satisfies all substantive technical requirements applicable\nto like activity conducted pursuant to a permit.\n