§ 1389-B — Powers of the commissioner

§ 1389-b. Powers of the commissioner. 1. (a) The department shall be\nresponsible for assessing (i) serious health problems at and in the\nimmediate vicinity of inactive hazardous waste disposal sites and (ii)\nany health problems deemed by the department to be related to conditions\nat such sites.\n (b) 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 responsibility pursuant to this title;\nprovided, however, that this subdivision shall not limit any liability\nwhich may otherwise exist for unlawful, willful or malicious acts or\nomissions on the part of the state, state agencies, their officers,\nemployees or agents, or for ownership or responsibility for the disposal\nof hazardous waste, including the cost of cleanup, pursuant to this\nsection or section 27-1313 of the environmental conservation law.\n 2. Whenever there is a condition dangerous to life or health resulting\nfrom an inactive hazardous waste disposal site, the commissioner shall\nimmediately declare the existence of such condition. After the issuance\nof any such declaration and throughout the time period during which such\na declaration is effective, the department shall be responsible for (a)\nmonitoring such inactive hazardous waste disposal sites, (b) approving\nproposed inactive hazardous waste disposal site remedial programs for\nsuch sites and (c) certifying the completion of inactive hazardous waste\ndisposal site remedial programs for such sites.\n 3. (a) Whenever the commissioner has issued such a declaration and\nthroughout the time period during which such a declaration is effective,\nthe commissioner may request the commissioner of environmental\nconservation pursuant to paragraph (b) of subdivision five of this\nsection and within the funds available to the department of\nenvironmental conservation to develop an inactive hazardous waste\ndisposal site remedial program for such site and/or, in addition to any\nother powers he may have, order the owner of such site and/or any person\nresponsible for the disposal of hazardous wastes at such site (i) to\ndevelop an inactive hazardous waste disposal site remedial program for\nsuch site subject to the approval of the department and (ii) to\nimplement such program within reasonable time limits specified in the\norder. Such order shall supersede any order issued by the commissioner\nof environmental conservation pursuant to section 27-1313 of the\nenvironmental conservation law.\n (b) Whenever the commissioner has issued such a declaration and\nfurther finds that it would be prejudicial to the public interest to\ndelay action until an opportunity for a hearing can be provided pursuant\nto this title, the department may request, pursuant to paragraph c of\nsubdivision five of this section and within the funds available to the\ndepartment of environmental conservation, the department of\nenvironmental conservation to develop and implement an inactive\nhazardous waste disposal site remedial program for such site. The\nfinding required pursuant to this paragraph may be made by the\ncommissioner on an ex parte basis subject to judicial review.\n 4. Any order issued pursuant to subdivision three of this section\nshall be issued only after notice and the opportunity for hearing is\nprovided to the 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 defenses 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 said order. The commissioner may\nrequest the participation of the attorney general in such hearings.\n 5. (a) Whenever a person ordered to eliminate a condition dangerous to\nlife or health has failed to do so within the time specified in the\norder, the department of environmental conservation shall develop and\nimplement or cause to be implemented, pursuant to a memorandum of\nunderstanding between the department and the department of environmental\nconservation, an inactive hazardous waste disposal site remedial program\nfor such site. The expense of developing and implementing such remedial\nprogram by the department, the department of environmental conservation\nor any other state agency shall be paid by the person to whom the order\nwas issued.\n (b) In the event that the commissioner has issued a declaration that\nhazardous wastes at a site constitute a condition dangerous to life or\nhealth, but after a reasonable attempt to determine who may be\nresponsible is either unable to determine who may be responsible, or is\nunable to locate a person who may be responsible, the department of\nenvironmental conservation may develop and implement an inactive\nhazardous waste disposal site remedial program for such site. The\ncommissioner 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 of such site and/or any\nperson responsible for the disposal of hazardous wastes at such site,\nincluding, but not limited to, development and implementation of an\ninactive hazardous waste disposal site remedial program, payment of the\ncost of such a program, recovery of any reasonable expenses incurred by\nthe state, money damages and penalties.\n (c) Whenever the commissioner has made a declaration and finding\npursuant to paragraph (b) of subdivision three of this section the\ndepartment may request the department of environmental conservation to\ndevelop and implement an inactive hazardous waste disposal site remedial\nprogram to contain, alleviate or end the threat to life or health. The\ncommissioner 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 and\nany person responsible for the disposal of hazardous wastes at such\nsite, including but not limited to, development and implementation of an\ninactive hazardous waste disposal site remedial program, payment of the\ncost of such a program, recovery of any reasonable expenses incurred by\nthe state, money damages and penalties.\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. If the person failing to comply with such order to eliminate a\ncondition dangerous to life or health is a municipality, commission or\npolitical subdivision of the state, the comptroller shall, upon\ncertification by the department subject to the approval of the director\nof the division of the budget of the expense of any action taken by the\ndepartment, the department of environmental conservation or any other\nstate agency pursuant to subdivision five of this section and upon\nnotification to the affected person, deduct and withhold from the next\nsucceeding allotments, payments or apportionments of local assistance\naid, other than education aid, to such municipality, commission or\npolitical subdivision of the state an amount or amounts equal to the\namount expended by the department, the department of environmental\nconservation or any other state agency and not paid. Prior to such\napproval by the director of the division of the budget, the director\nshall (a) develop a schedule of deductions and withholdings that will\nensure the continuity of essential services by such municipality,\ncommission or political subdivision of the state and (b) give thirty\ndays written notice of such deductions and withholdings to the speaker\nand minority leader of the assembly, the majority and minority leaders\nof the senate and the chairmen and ranking minority members of the\nsenate finance committee and the assembly ways and means committee. Such\ndeductions or withholdings will in no case take effect before one full\nfiscal year of the affected person after the date of such approval by\nthe director of the division of the budget shall have elapsed. The\nstate, by virtue of such deductions or withholdings, shall not be\nobligated to pay any additional or increased allotments, payments or\napportionments of state aid. Allotments, payments or apportionments\nwithheld pursuant to this subdivision shall be credited to the general\nfund of the state.\n 8. Moneys for actions taken or to be taken by the department, the\ndepartment of environmental conservation or any other state agency in\nconnection with the elimination of conditions dangerous to life or\nhealth pursuant to subdivision five of this section, including any\ninspection or sampling of wastes, soils, air, surface water and\ngroundwater done upon behalf of a state agency whether or not such\naction is taken prior to the issuance of a declaration pursuant to\nsubdivision two of 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.\n