senate Bill S492

2011-2012 Legislative Session

Permits the state to act as parens patriae to recover a municipality's share of the cost of an environmental restoration project from responsible parties

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Archive: Last Bill Status - In Committee


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor

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Actions

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Assembly Actions - Lowercase
Senate Actions - UPPERCASE
Jan 04, 2012 referred to environmental conservation
Jan 05, 2011 referred to environmental conservation

S492 - Bill Details

Current Committee:
Law Section:
Environmental Conservation Law
Laws Affected:
Amd ยง56-0507, En Con L
Versions Introduced in 2009-2010 Legislative Session:
S411

S492 - Bill Texts

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Authorizes the state to act as an agent of a municipality (to which state assistance has been provided) in the form of parens patriae, upon written request made by a municipality to the commissioner of environmental conservation and to the attorney general, to recover a municipality's share of the cost of an environmental restoration project from the responsible parties; provides that where a municipality has requested the state to so act to recover its share of the costs of an environmental restoration project, then that portion of such monies recovered or reimbursed which represents the proportionate share of the costs incurred by the municipality for each such project shall be paid out of such funds to the municipality by the comptroller upon the presentation of a claim therefor.

view sponsor memo
BILL NUMBER:S492

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:
2005-2006 REFERRED TO ENVIRONMENTAL CONSERVATION
2007-2008 REFERRED TO ENVIRONMENTAL CONSERVATION
2009-2010 REFERRED TO ENVIRONMENTAL CONSERVATION

EFFECTIVE DATE:
This act will take effect immediately.

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                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                   492

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                               (PREFILED)

                             January 5, 2011
                               ___________

Introduced  by  Sen.  ROBACH -- read twice and ordered printed, and when
  printed to be committed to the Committee on Environmental Conservation

AN ACT to amend the  environmental  conservation  law,  in  relation  to
  permitting  the  state  to  act as parens patriae to recover a munici-
  pality's share of the cost of  an  environmental  restoration  project
  from responsible parties

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Subdivisions 2 and 3 of section  56-0507  of  the  environ-
mental  conservation law, as amended by section 6 of part D of chapter 1
of the laws of 2003, are amended to read as follows:
  2. The state shall make all reasonable efforts  to  recover  the  full
amount  of  any  state  assistance provided TO A MUNICIPALITY under this
title FOR AN ENVIRONMENTAL RESTORATION  PROJECT  AND,  IF  REQUESTED  IN
WRITING TO THE COMMISSIONER AND THE ATTORNEY GENERAL OF THE STATE OF NEW
YORK  BY  THE MUNICIPALITY TO WHICH SUCH ASSISTANCE WAS GIVEN, SHALL ACT
AS AGENT OF SUCH MUNICIPALITY IN THE FORM OF PARENS PATRIAE, TO  RECOVER
THE  MUNICIPALITY'S  SHARE OF ITS COST OF SUCH ENVIRONMENTAL RESTORATION
PROJECT, through litigation brought under this section or other  statute
or under the common law, or through cooperative agreements, with respon-
sible parties (other than the municipality to which state assistance was
provided  under  this  title; or a successor in title, lender, or lessee
who was not otherwise a responsible party prior  to  the  municipality's
taking title to such property).
  3. Any and all monies recovered or reimbursed AS TO EACH ENVIRONMENTAL
RESTORATION PROJECT pursuant to this section shall be deposited into the
environmental restoration project account of the hazardous waste remedi-
al  fund  established  under section ninety-seven-b of the state finance
law; PROVIDED HOWEVER, THAT IF ANY MUNICIPALITY HAS REQUESTED  THAT  THE
STATE  ACT  AS ITS AGENT AS PARENS PATRIAE TO RECOVER ITS SHARE OF COSTS

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD01922-01-1

S. 492                              2

OF AN ENVIRONMENTAL RESTORATION  PROJECT,  THEN  THAT  PORTION  OF  SUCH
MONIES  RECOVERED  OR  REIMBURSED  AS  TO EACH ENVIRONMENTAL RESTORATION
PROJECT WHICH REPRESENTS THE PROPORTIONATE SHARE OF THE  COSTS  INCURRED
BY  SUCH  MUNICIPALITY FOR EACH SUCH ENVIRONMENTAL PROJECT SHALL BE PAID
OUT OF SUCH FUNDS TO SUCH MUNICIPALITY BY THE COMPTROLLER OF  THE  STATE
UPON  THE  PRESENTATION  TO THE COMPTROLLER OF A CLAIM FOR SUCH MONEY BY
SUCH MUNICIPALITY.
  S 2. This act shall take effect immediately.

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