NY State Senate Bill 2021-S5822

Senate Bill S5822

2021-2022 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 05, 2022	referred to environmental conservation
Mar 19, 2021	referred to environmental conservation

2021-S5822 (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:: 2017-2018: S6466
2019-2020: S2536
2023-2024: S2885

2021-S5822 (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; 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.

2021-S5822 (ACTIVE) - Sponsor Memo

                                
 
BILL NUMBER: S5822

SPONSOR: COMRIE
 
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 remedi-
ation.

 
SUMMARY OF PROVISIONS:

Section one specifies that State and municipal remediation costs associ-
ated 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 environ-
mental 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 recent-
ly been afflicted with illegal disposal cases involving the contam-
ination 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.
 
LEGISLATIVE HISTORY:

S6466 COMRIE No Same as

 
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.

2021-S5822 (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   5822
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                              March 19, 2021
                                ___________
 
 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.
                                                            LBD09685-01-1

 S. 5822                             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. 5822                             3
 
   [d.]  E. Notwithstanding the provisions of [subdivision c] PARAGRAPH D
 of this [section] SUBDIVISION, 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.]  F.  Whenever  the commissioner of health makes a declaration and
 finding pursuant to paragraph [b] (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 AND E 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. 5822                             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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