§ 27-1329 — Abatement actions

§ 27-1329. Abatement actions.\n 1. (a) Maintenance, jurisdiction, etc. When the commissioner, after\ninvestigation, determines that there may be an imminent danger to the\nhealth or welfare of the people of the state or the environment, or an\nactual or threatened release of hazardous waste from an inactive\nhazardous waste disposal site, as defined in clauses (i) and (ii),\nrespectively, of subparagraph one of paragraph b of subdivision two of\nsection 27-1305 of this title, is resulting in or is likely to result in\nirreversible or irreparable damage to natural resources, the\ncommissioner may request the attorney general to secure such relief as\nmay be necessary to abate such danger or threat and to grant such relief\nas the public interest and the equities of the case may require. The\ncommissioner may issue such orders as may be necessary to protect public\nhealth and welfare and the environment, provided the commissioner has a\nreasonable belief that persons responsible for implementing such orders\nhave adequate financial resources to comply, there is evidence\nsufficient to support liability of such person, and the department has\nmade all reasonable efforts to secure voluntary agreement of such person\nto abate the imminent danger or threat.\n (b) Any such person may request a meeting with the department to\ndiscuss reconsideration of an order, within five business days of\nreceiving such order, if such person believes they are not liable. Such\nrequest shall include a description of the reason why such person\nbelieves they are not liable and any supporting documentation. The\ndepartment shall make all practicable efforts to hold such meeting\nwithin five business days of receiving such request and shall consider\nits evidence of such person's liability in light of any information and\ndocumentation provided.\n (c) Any such order issued by the commissioner shall be a final\ndetermination of the department and subject to challenge pursuant to\narticle seventy-eight of the civil practice law and rules.\n (d) No action may be taken under paragraph (a) of this subdivision\nagainst a bona fide prospective purchaser, as defined in subdivision\nfive of section 27-1323 of this title.\n 2. Fines; reimbursement. (a) Any person who, without sufficient cause,\nfails or refuses to comply with any order of the commissioner under\nsubdivision one of this section may, in an action brought in the\nappropriate court of competent jurisdiction to enforce such order, be\nfined not more than thirty-seven thousand five hundred dollars for each\nday in which such violation occurs or such failure to comply continues.\n (b) (i) Any person who receives and complies with the terms of any\norder issued under subdivision one of this section may, within sixty\ndays after completion of the required action, petition the commissioner\nfor reimbursement from the hazardous waste remedial fund pursuant to\nsection ninety-seven-b of the state finance law for the reasonable costs\nof such action, plus interest. Any interest payable under this\nsubparagraph shall accrue on the amounts expended from the date of\nexpenditure at the same rate as specified for interest on investments of\nthe hazardous substance superfund established under subchapter A of\nchapter 98 of title 26 of the federal comprehensive environmental\nresponse, compensation, and liability act.\n (ii) If the commissioner refuses to grant all or part of a petition\nmade under this paragraph, the petitioner may within thirty days of\nreceipt of such refusal file an action against the department pursuant\nto article seventy-eight of the civil practice law and rules.\n (iii) Except as provided in subparagraph (iv) of this paragraph, to\nobtain reimbursement, the petitioner shall establish by a preponderance\nof the evidence that such petitioner is not liable for response costs\nunder section 27-1313 of this title and that costs for which such\npetitioner seeks reimbursement are reasonable in light of the action\nrequired by the relevant order.\n (iv) A petitioner under subparagraph (i) of this paragraph may also\nrecover its reasonable costs of response to the extent that such\npetitioner can demonstrate, on the administrative record, that the\ncommissioner's decision in selecting the response action ordered was\narbitrary and capricious or was otherwise not in accordance with law.\nReimbursement awarded under this subparagraph shall include all\nreasonable response costs incurred by the petitioner pursuant to the\nportions of the order found to be arbitrary and capricious or otherwise\nnot in accordance with law.\n (v) Reimbursement awarded by a court under subparagraph (iii) or (iv)\nof this paragraph may include appropriate costs, fees, and other\nexpenses in accordance with section eighty-six hundred one of the civil\npractice law and rules.\n 3. The commissioner shall provide notice of the provisions of this\nsection to known responsible persons at sites listed in clauses (i) and\n(ii) of subparagraph one of paragraph b of subdivision two of section\n27-1305 of this title, within six months of the effective date of the\nchapter of the laws of two thousand twenty-five which added this\nsection, if the commissioner intends to issue an order to such\nresponsible persons. No such orders shall be issued within a one-year\nperiod after the effective date of the chapter of the laws of two\nthousand twenty-five which added this section.\n