Section 27-1313. Remedial programs

1.  a.  The  department  shall  be  responsible,  as  provided in this
  section, for inactive hazardous waste disposal  site  remedial  programs
  except  as  provided in section one thousand three hundred eighty-nine-b
  of the public health law.
    b. The department shall have the authority to require the  development
  and  implementation  of  a  department-approved inactive hazardous waste
  disposal site remedial program.
    c. 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 aforesaid responsibility pursuant to this
  section; provided, however, that this  paragraph  shall  not  limit  the
  liability  which  may otherwise exist for unlawful, willful or malicious
  acts or omissions on the part of the state,  state  agencies,  or  their
  officers,  employees  or  agents; or for the ownership or responsibility
  for the disposal of hazardous waste,  including  the  cost  of  cleanup,
  pursuant to this section.
    2.  The  department  shall  have  the  authority  (a) to delegate such
  responsibility for a specific site to the  municipality  in  which  such
  site  is  located  and (b) to contract with the environmental facilities
  corporation and any other person to perform necessary work in connection
  with such sites.
    3. a. Whenever the commissioner finds  that  hazardous  wastes  at  an
  inactive  hazardous  waste disposal site constitute a significant threat
  to the environment, he may 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,
  subject to the approval of the department, at such  site,  and  (ii)  to
  implement  such  program  within reasonable time limits specified in the
  order. Provided, however, that in the event the commissioner  of  health
  shall  issue  an  order  pursuant  to  subdivision  three of section one
  thousand three hundred eighty-nine-b of  the  public  health  law,  such
  order  of  the  commissioner  of health shall supersede any order issued
  hereunder.
    b. Whenever the commissioner, after investigation, finds:
    (i) that hazardous wastes at an inactive hazardous waste disposal site
  constitutes a significant threat to the environment; and
    (ii) that such threat is causing or presents  an  imminent  danger  of
  causing irreversible or irreparable damage to the environment; and
    (iii)  the threat makes it prejudicial to the public interest to delay
  action until  a  hearing  can  be  held  pursuant  to  this  title,  the
  department  may,  pursuant  to  paragraph  c of subdivision five of this
  section and within the funds available to the  department,  develop  and
  implement an inactive hazardous waste disposal site remedial program for
  such  site.  Findings  required  pursuant  to this paragraph shall be in
  writing and 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 a hearing is
  provided  to  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 defense 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 such  order.  The  commissioner  may
  request the participation of the attorney general in such hearings.
    5.  a.  Whenever  a  person  ordered  to  eliminate  a  threat  to the
  environment pursuant to paragraph a of subdivision three of this section
  has failed to do so within the time limits specified in the  order,  the
  department  may  develop  and  implement  an  inactive  hazardous  waste
  disposal site remedial program for such site. The reasonable expenses of
  developing and implementing such  remedial  program  by  the  department
  shall  be  paid by the person to whom the order was issued and the state
  may seek to recover such reasonable expenses in any court of appropriate
  jurisdiction.
    b. In the event that the commissioner has found that hazardous  wastes
  at  a site constitute a significant threat to the environment, 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 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 any person subsequently identified  or
  located  who  is responsible for the disposal of hazardous waste 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 findings pursuant to paragraph b
  of subdivision three of this section or the commissioner of  health  has
  made  a declaration and finding pursuant to paragraph (b) of subdivision
  three of section one thousand three hundred eighty-nine-b of the  public
  health  law,  the  department  may  develop  and  implement  an inactive
  hazardous waste disposal site remedial program to contain, alleviate  or
  end  the  threat  to  life  or  health  or to the environment. The costs
  incurred by the department in developing and implementing such a program
  shall be in an amount commensurate with the actions the department deems
  necessary to eliminate such danger. In determining the scope, nature and
  content of such program, the department shall consider among others, the
  following factors:
    (i) the technological feasibility of all actions;
    (ii) the nature of the danger to  human  health  and  the  environment
  which the actions are designed to address; and
    (iii)  the  extent  to  which  the actions would reduce such danger to
  human health or the environment or would otherwise benefit human  health
  or the environment.
    d.  Notwithstanding  the  provisions of subdivision c of this section,
  the department shall be authorized to develop and implement an  inactive
  hazardous  waste  disposal site remedial program at the site pursuant to
  this subdivision  if,  in  the  discretion  of  the  department,  it  is
  cost-effective  for  the  department  to  develop  and  implement such a
  remedial program. The goal of any  such  remedial  program  shall  be  a
  complete  cleanup of the site through the elimination of the significant
  threat to the environment posed by the disposal of hazardous  wastes  at
  the  site  and  of  the  imminent  danger of irreversible or irreparable
  damage to the environment caused by such disposal.  The  factors  to  be
  considered by the department in determining whether it is cost-effective
  to  develop  and  implement  an  inactive  hazardous waste disposal site

  remedial program at a site pursuant to this subdivision  shall  include,
  among others:
    (i)  the  ability of the department to determine, through the exercise
  of its scientific judgment, whether  the  elimination  of  the  imminent
  danger  of  irreversible or irreparable damage to the environment can be
  achieved through limited actions;
    (ii) the ability of the department to identify the owner of  the  site
  and/or  any  person  responsible for the disposal of hazardous wastes at
  such site with sufficient financial resources to develop  and  implement
  an inactive hazardous waste disposal site remedial program at such site;
    (iii)  the  nature  of  the danger to human health and the environment
  which the actions are designed to address; and
    (iv) the extent to which the actions would reduce such danger to human
  health or the environment or would otherwise benefit human health or the
  environment.
    e. Whenever the commissioner of health makes a declaration and finding
  pursuant to paragraph b of subdivision three  of  section  one  thousand
  three hundred eighty-nine-b of the public health law, the department may
  implement  an inactive hazardous waste site remedial program in the same
  manner as specified in paragraphs c and d of this subdivision.
    f. 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/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  program,  recovery  of  any reasonable expenses
  incurred by the state, money damages and penalties.
    g.  When  a  municipality  develops  and  implements  pursuant  to  an
  agreement  with the department an inactive hazardous waste disposal site
  remedial program as approved by the department for a site which is owned
  or has been operated  by  such  municipality  or  when  the  department,
  pursuant  to  an  agreement with a municipality, develops and implements
  such a remedial program, the commissioner shall,  in  the  name  of  the
  state,  agree  in  such  agreement  to  provide from the hazardous waste
  remedial  fund,  within  the  limitations  of  appropriations  therefor,
  seventy-five  percent  of  the eligible design and construction costs of
  such remedial program for  which  such  municipality  is  liable  solely
  because of its ownership and/or operation of such site and which are not
  recovered  from  or  reimbursed  or  paid  by a responsible party or the
  federal government.
    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. Moneys for actions taken or to be  taken  by  the  department,  the
  department  of  health  or any other state agency in connection with the
  elimination of conditions  dangerous  to  life  or  health  pursuant  to
  subdivision five of section thirteen hundred eighty-nine-b of the public
  health  law  or  with  the  elimination  of  a significant threat to the
  environment pursuant to 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. This includes any inspection or
  sampling of wastes, soils, air, surface water and  groundwater  done  on
  behalf  of  a  state agency whether or not such action is taken prior to
  the issuance of a declaration pursuant to  subdivision  two  of  section
  thirteen  hundred  eighty-nine-b  of  the public health law or a finding

  pursuant to subdivision three of this  seciton  and  any  administrative
  expenses related thereto.
    8.  Any  duly  designated officer or employee of the department or any
  other state agency, and any  agent,  consultant,  contractor,  or  other
  person,  including  an  employee,  agent, consultant, or contractor of a
  responsible person  acting  at  the  direction  of  the  department,  so
  authorized  in  writing  by  the  commissioner,  may  enter any inactive
  hazardous waste disposal site and areas near such site to  implement  an
  inactive  hazardous  waste disposal site remedial program for such site,
  provided the commissioner has sent a written notice  to  the  owners  of
  record  or  any  known  occupants  of  such  site or nearby areas of the
  intended entry and work at least ten days prior to such initial entry.
    9. Nothing herein contained shall be construed  to  limit  or  in  any
  manner  affect the power of the commissioner to issue an order according
  to the provisions of section 71-2727 of this chapter.
    10.  The  department,  by  and  through  the  commissioner,  shall  be
  authorized  to  exempt a person from the requirement to obtain any state
  or local permit or  other  authorization  for  any  activity  needed  to
  implement  an  inactive  hazardous  waste disposal site remedial program
  pursuant to this title; provided, that the activity is  conducted  in  a
  manner which satisfies all substantive technical requirements applicable
  to like activity conducted pursuant to a permit.