Senate Bill S411

                                 BILL NUMBER:  S411

 TITLE OF BILL :
An act to amend the environmental conservation law, in relation to
permitting the state to act as parens patriae to recover a
municipality's share of the cost of an environmental restoration
project from responsible parties


 PURPOSE :
This bill directs the state, upon the request of a municipality, to
act as the agent of such a municipality to recover the municipality's
share of the cost of an environmental restoration project undertaken
under the Clean Water/Clean Air Bond Act when the state is undertaking
to recover its own share of the cost of such project.

 SUMMARY OF PROVISIONS :
1) Upon written request to the Commissioner of the Department of
Environmental Conservation and the Attorney General, the state will
act as agent for the municipality to collect its share of such costs
(normally 25%).  (Amendment)

2) The municipality that has requested the state to act as its agent
is entitled to its proportionate share of such moneys and can get it
by presenting a claim to the Comptroller of the state of New York who
will pay such moneys out of the hazardous waste remedial fund to the
              

municipality.

 JUSTIFICATION :
The present law requires that the state undertake to obtain
reimbursement of its share of the cost of an environmental restoration
project undertaken by a municipality under the Clean Water/Clean Air
Bond Act and to deposit all the funds it receives from such effort in
the hazardous waste remedial fund.  There is no provision for the
recovery of the municipality's share of such costs.  The normal
breakdown of such costs is 75% state and 25% municipality.

Presently, the municipality would have to join in the pursuit of the
recovery of its share separately or by its lawyers consolidating its
action with the state's action.  Since subdivision 1 of section
56-0507 of the ECL (the section being amended by this bill) requires
the municipality to act as agent of the state in the expense of the
state's funds in the restoration project and as such, would
necessarily have to be involved in at least the damage portion of the
state's action, it makes sense that the state should be the
municipality's agent for the recovery of its share of the costs.  The
municipality's claim should be part of the whole process and that its
interest should be presented and protected along with the state's.
Moreover, should there not be sufficient assets to recover the total
costs or if a settlement is advisable because of the chance of success
etc.  of a claim against a potentially responsible party, if only the
state is pursuing the claim under the present law - only the state
would get any reimbursement.  If both parties were involved, then the
court would have to determine which party gets what.

This legislation avoids multiple lawsuits and insures that a
municipality will be treated equally with the state in a proportionate
sharing of any costs recovered.

Because this provision is not in the law today, some municipalities
are loath to use the Bond Act to remedy their brownfields.  This bill
would correct that and encourage the municipalities to utilize this
resource and clean up those properties.

The amendment preserves the right of the municipality to pursue its
claim separately if, for any reason, it so chooses.
 LEGISLATIVE HISTORY :
2005 REFERRED TO ENVIRONMENTAL CONSERVATION
2006 REFERRED TO ENVIRONMENTAL CONSERVATION
2007 REFERRED TO ENVIRONMENTAL CONSERVATION
2008 REFERRED TO ENVIRONMENTAL CONSERVATION

 EFFECTIVE DATE :
This act will take effect immediately.