§ 27-1431 — Access to sites

§ 27-1431. Access to sites.\n The department, by and through the commissioner, shall be authorized\nto:\n 1. Require that any person permit a duly designated officer or\nemployee of the department or of a municipal corporation, or any agent,\nconsultant, or contractor of the department or of a municipal\ncorporation, or any other person, including an employee, agent,\nconsultant, or contractor of an applicant acting at the direction of the\ndepartment, so authorized in writing by the commissioner, to enter upon\nany property which has or may have been the site of the disposal or\ndischarge of contaminants, and/or areas near such site, for the\nfollowing purposes:\n a. to inspect and take samples of such contaminants and/or\nenvironmental media, utilizing such sampling methods as may be necessary\nor appropriate, including without limitation soil borings and monitoring\nwells; provided, that no sampling methods involving the substantial\ndisturbance of the ground surface of such property may be utilized until\nafter a minimum of ten days' written notice thereof shall have been\nprovided to the owner and operator and occupant of such property, if\nidentifiable by reasonable efforts, unless the commissioner makes a\nwritten determination that such notice will not allow the protection of\nthe public health or the environment, in which case two days' written\nnotice shall be sufficient;\n b. to implement the investigation and/or remediation of contamination\nand/or environmental media; provided that no such work may be undertaken\nuntil after a minimum of ten days' written notice thereof shall have\nbeen provided to the owner and operator and occupant of such property,\nif identifiable by reasonable efforts, unless the commissioner makes a\nwritten determination that such notice will not allow the protection of\nthe public health or the environment, in which case two days' written\nnotice shall be sufficient.\n (i) If any designated officer or employee of the department or of a\nmunicipal corporation, or any agent, consultant, or contractor of the\ndepartment or of a municipal corporation, or any other person, including\nan employee, agent, consultant or contractor of a responsible person\nacting at the direction of the department obtains any samples prior to\nleaving the premises they shall give to the owner a receipt describing\nthe sample obtained and, if requested, a portion of such sample equal in\nvolume or weight to the portion retained. If any analysis is made of\nsuch samples, a copy of the results of such analysis shall be furnished\npromptly to the owner. Upon the completion of all sampling or subsequent\nremediation activities, the department shall remove, or cause to be\nremoved, all equipment and well machinery and return the ground surface\nof the property to its condition prior to such sampling unless the\ndepartment and the owner of the property shall agree otherwise.\n (ii) the expense of any such sampling and analysis shall be paid by\nthe department, but may be recovered from any responsible person in any\naction or proceeding brought pursuant to this title or common law.\n c. to inspect for compliance with the site management plan approved by\nthe department, including (i) inspection of the performance of\nmaintenance, monitoring and operational activities required as part of\nthe remedial program for the site, (ii) inspection for the purpose of\nascertaining current uses of the site, and (iii) taking samples in\naccordance with paragraph (a) of this subdivision.\n 2. a. Require that any person furnish to the department, in a form and\nmanner as prescribed by the department, information relating to the\ncurrent and past contaminant generation, treatment, storage, disposal,\nand/or transportation activities of such person or any other person now\nor formerly under the control of such person; in the event such person\ncannot comply therewith, in whole or in part, such person shall furnish\nto the department information describing all efforts made by such person\nto comply therewith; any information so furnished to the department\nshall be considered a "written instrument" as defined in subdivision\nthree of section 175.00 of the penal law;\n b. Require that any person permit a duly designated officer or\nemployee of the department at all reasonable times to have access to and\nto copy all books, papers, documents, and records relating to the\ncurrent and past contaminant generation, treatment, storage, disposal,\nand/or transportation activities of such person or any person now or\nformerly under the control of such person;\n c. Require, by subpoena issued in the name of the department, the\nproduction of books, papers, documents, and other records, and the\nrendition of testimony by deposition under oath of any person relating\nto the current and past contaminant generation, treatment, storage,\ndisposal, and/or transportation activities of such person or any person\nnow or formerly under the control of such person; such subpoenas and\ndepositions shall be regulated by the civil practice law and rules; the\ncommissioner may invoke the powers of the supreme court of the state of\nNew York or any other court of competent jurisdiction to compel\ncompliance therewith.\n