NY State Senate Bill 2017-S6466

Senate Bill S6466

2017-2018 Legislative Session

Relates to the recovery of costs for the response costs and damages to natural resources as a result of the illegal disposal of waste

download bill text pdf

Archive: Last Bill Status - In Senate Committee Environmental Conservation Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 03, 2018	referred to environmental conservation
May 23, 2017	referred to environmental conservation

2017-S6466 (ACTIVE) - Details

Current Committee:: Senate Environmental Conservation
Law Section:: Environmental Conservation Law
Laws Affected:: Add §27-0111, amd §§27-1313 & 71-2705, En Con L
Versions Introduced in Other Legislative Sessions:: 2019-2020: S2536
2021-2022: S5822
2023-2024: S2885

2017-S6466 (ACTIVE) - Summary

Relates to the recovery of costs for the response costs and damages to natural resources as a result of the illegal disposal of waste and establishes that expenditures made by the department as a result of the illegal disposal of waste shall be a lien against the person who is responsible for such illegal disposal.

2017-S6466 (ACTIVE) - Sponsor Memo

                                 BILL NUMBER:  S6466

 TITLE OF BILL :  An act to amend the environmental conservation law,
in relation to the recovery of costs for the response costs and
damages to natural resources as a result of the illegal disposal of
waste

 PURPOSE :

This bill would specify cleanup cost liability in cases of illegal
waste disposal and expand State cost recovery for hazardous waste site
remediation.

 SUMMARY OF PROVISIONS :

Section one specifies that State and municipal remediation costs
associated with illegal waste disposal sites are the liability of the
person responsible for the illegal waste disposal.

Section two authorizes the department of environmental conservation to
utilize liens to recover remediation costs associated with the
inactive hazardous waste disposal program.

Section three allows for the collection by the department of
environmental conservation of treble damages for a person who has
unreasonably or in bad faith failed or refused to comply with an order

provided under this title.

Section four establishes the effective date.

 JUSTIFICATION :

A growing number of communities from Long Island to Buffalo have
recently been afflicted with illegal disposal cases involving the
contamination of public spaces. In some instances, this illegal
disposal has involved thousands of tons, or many truckloads, of
construction material containing debris ranging from asphalt and
bricks to asbestos, treated lumber, petroleum products, roofing
shingles, and soil from historically contaminated areas. This blatant
and illegal dumping has unduly burdened communities with unanticipated
costs for remediating properties and protecting the public from
potentially toxic debris.

Illegal dumping not only presents a public health threat and an
unnecessary drain on municipal and State resources, but also restricts
public access to parks and other common grounds, tarnishes community
character, and can reduce local property values.

State laws concerning the unlawful disposal of waste, most
specifically construction and demolition debris -that have been found
to contain toxic substances like asbestos and heavy metals- should be
clarified to explicitly place site remediation cost liability on the
responsible party.

This bill would do so by specifying remediation cost liability in
cases of illegal waste disposal.

This bill would additionally grant authority to the department of
environmental conservation to place liens on the property of
responsible parties to recover State-assumed cleanup costs associated
with Superfund sites, as is the practice in neighboring states. This
bill would also increase a new remedy against bad faith actors for
treble damages.

 FISCAL IMPLICATIONS :

Provides relief to the State and municipalities by holding responsible
parties accountable for costs to remediate illegal waste disposal
sites.

 EFFECTIVE DATE :
This act shall take effect immediately.

2017-S6466 (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   6466
 
                        2017-2018 Regular Sessions
 
                             I N  S E N A T E
 
                               May 23, 2017
                                ___________
 
 Introduced  by  Sen.  COMRIE -- 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  the
   recovery  of  costs  for  the  response  costs  and damages to natural
   resources as a result of the illegal disposal of waste

   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.  The environmental conservation law is amended by adding a
 new section 27-0111 to read as follows:
 § 27-0111. ILLEGAL DISPOSAL COST RECOVERY.
   A PERSON WHO IS RESPONSIBLE FOR  THE  ILLEGAL  DISPOSAL  OF  WASTE  AS
 DEFINED  IN  SECTION  27-1301  OF THIS ARTICLE, OR CAUSES A RELEASE OR A
 SUBSTANTIAL THREAT OF RELEASE OF A CONTAMINANT WHICH PRESENTS A SUBSTAN-
 TIAL DANGER TO THE PUBLIC HEALTH OR SAFETY OR THE ENVIRONMENT, SHALL  BE
 LIABLE FOR THE RESPONSE COSTS AND FOR DAMAGES TO NATURAL RESOURCES.  THE
 DEPARTMENT,  A STATE AGENCY, OR A MUNICIPALITY WHICH UNDERTAKES TO ABATE
 A PUBLIC NUISANCE UNDER THIS TITLE OR TAKE A RESPONSE ACTION MAY RECOVER
 SUCH RESPONSE COSTS AND NATURAL RESOURCE DAMAGES IN AN ACTION IN  EQUITY
 BROUGHT BEFORE A COURT OF COMPETENT JURISDICTION.
   §  2.  Subdivision 5 of section 27-1313 of the environmental conserva-
 tion law, as amended by chapter 857 of the laws of 1982, paragraph g  as
 amended  by  chapter  164  of  the  laws  of 1990, is amended to read as
 follows:
   5. a. Whenever a person ordered to eliminate a threat to the  environ-
 ment  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
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD11838-01-7

 S. 6466                             2
 
 may seek to recover such reasonable expenses in any court of appropriate
 jurisdiction.
   b.  ANY  EXPENDITURES  MADE  BY  THE DEPARTMENT PURSUANT TO THIS TITLE
 SHALL CONSTITUTE, IN EACH INSTANCE, A DEBT OF THE PERSON WHO IS  RESPON-
 SIBLE  FOR  THE DISPOSAL OF HAZARDOUS WASTE TO THE STATE. THE DEBT SHALL
 CONSTITUTE A LIEN ON ALL PROPERTY OWNED BY THE PERSON WHO IS RESPONSIBLE
 FOR THE DISPOSAL OF HAZARDOUS WASTE WHEN A NOTICE OF LIEN, INCORPORATING
 A DESCRIPTION OF THE PROPERTY OF THE PERSON WHO IS RESPONSIBLE  FOR  THE
 DISPOSAL  OF  HAZARDOUS  WASTE SUBJECT TO THE CLEANUP AND REMOVAL AND AN
 IDENTIFICATION OF THE AMOUNT  OF  CLEANUP,  REMOVAL  AND  RELATED  COSTS
 EXPENDED BY THE STATE, IS DULY FILED IN THE CLERK'S OFFICE OF THE COUNTY
 WHERE  THE PROPERTY IS SITUATED. THE CLERK SHALL PROMPTLY ENTER UPON THE
 CIVIL JUDGMENT OR ORDER DOCKET THE NAME AND ADDRESS OF THE PERSON WHO IS
 RESPONSIBLE FOR THE DISPOSAL OF HAZARDOUS WASTE AND THE  AMOUNT  OF  THE
 LIEN  AS  SET FORTH IN THE NOTICE OF LIEN.  UPON ENTRY BY THE CLERK, THE
 LIEN, TO THE AMOUNT COMMITTED BY THE DEPARTMENT FOR CLEANUP AND REMOVAL,
 SHALL ATTACH TO THE REVENUES AND ALL REAL AND PERSONAL PROPERTY  OF  THE
 PERSON  WHO  IS RESPONSIBLE FOR THE DISPOSAL OF HAZARDOUS WASTE, WHETHER
 OR NOT THE PERSON WHO IS RESPONSIBLE FOR THE DISPOSAL OF HAZARDOUS WASTE
 IS INSOLVENT. THE NOTICE OF LIEN  FILED  PURSUANT  TO  THIS  SUBDIVISION
 WHICH  AFFECTS  ANY  PROPERTY  OF  A  PERSON  WHO IS RESPONSIBLE FOR THE
 DISPOSAL OF HAZARDOUS WASTE SHALL NOT AFFECT ANY VALID LIEN,  RIGHT,  OR
 INTEREST  IN THE PROPERTY FILED IN ACCORDANCE WITH ESTABLISHED PROCEDURE
 PRIOR TO THE FILING OF A NOTICE OF LIEN PURSUANT TO THIS SUBDIVISION.
   C. 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.] D. Whenever the commissioner has made findings pursuant to  para-
 graph  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 inac-
 tive  hazardous waste disposal site remedial program to contain, allevi-
 ate 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.

 S. 6466                             3
 
   [d.]  E.  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 reme-
 dial 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.] F. 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.]  G.  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 implementa-
 tion  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.] H. 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, pursu-
 ant 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.
   § 3. Subdivision 1 of section 71-2705 of the  environmental  conserva-
 tion  law,  as amended by section 30 of part C of chapter 62 of the laws
 of 2003, is amended to read as follows:

 S. 6466                             4
 
   1. Civil and administrative sanctions. Any person who violates any  of
 the provisions of, or who fails to perform any duty imposed by titles 9,
 11  and  13 of article 27 or any rule or regulation promulgated pursuant
 thereto, or any term or condition of any certificate  or  permit  issued
 pursuant thereto, or any final determination or order of the commission-
 er  made  pursuant  to this title shall be liable in the case of a first
 violation, for a civil penalty not to exceed thirty-seven thousand  five
 hundred  dollars and an additional penalty of not more than thirty-seven
 thousand five hundred dollars for each day during which  such  violation
 continues  OR TREBLE DAMAGES IN CASES WHERE THE DEPARTMENT HAS ISSUED AN
 ORDER PURSUANT TO TITLE 9, 11, OR 13 OF ARTICLE 27 TO  A  PERSON  LIABLE
 PURSUANT  TO  THIS  SECTION  AND  SUCH PERSON HAS UNREASONABLY OR IN BAD
 FAITH FAILED OR REFUSED TO COMPLY WITH SUCH ORDER, to be assessed by the
 commissioner after an opportunity to be heard pursuant to the provisions
 of section 71-1709 of this article, or by the court  in  any  action  or
 proceeding  pursuant  to section 71-2727 of this title, and, in addition
 thereto, such person may by similar process be enjoined from  continuing
 such  violation  and any permit or certificate issued to such person may
 be revoked or suspended or a pending renewal application denied. In  the
 case of a second and any further violation, the liability shall be for a
 civil  penalty not to exceed seventy-five thousand dollars for each such
 violation and an additional penalty not to exceed seventy-five  thousand
 dollars for each day during which such violation continues OR FIVE TIMES
 THE  DAMAGES  IN CASES WHERE THE DEPARTMENT HAS ISSUED AN ORDER PURSUANT
 TO TITLE 9, 11, OR 13 OF ARTICLE 27 TO A PERSON LIABLE PURSUANT TO  THIS
 SECTION  AND  SUCH  PERSON  HAS  UNREASONABLY  OR IN BAD FAITH FAILED OR
 REFUSED TO COMPLY WITH SUCH ORDER.
   § 4. This act shall take effect immediately.

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