§ 1389-b. Powers of the commissioner. 1. (a) The department shall be
responsible for assessing (i) serious health problems at and in the
immediate vicinity of inactive hazardous waste disposal sites and (ii)
any health problems deemed by the department to be related to conditions
at such sites.

(b) 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 responsibility pursuant to this title;
provided, however, that this subdivision shall not limit any liability
which may otherwise exist for unlawful, willful or malicious acts or
omissions on the part of the state, state agencies, their officers,
employees or agents, or for ownership or responsibility for the disposal
of hazardous waste, including the cost of cleanup, pursuant to this
section or section 27-1313 of the environmental conservation law.

2. Whenever there is a condition dangerous to life or health resulting
from an inactive hazardous waste disposal site, the commissioner shall
immediately declare the existence of such condition. After the issuance
of any such declaration and throughout the time period during which such
a declaration is effective, the department shall be responsible for (a)
monitoring such inactive hazardous waste disposal sites, (b) approving
proposed inactive hazardous waste disposal site remedial programs for
such sites and (c) certifying the completion of inactive hazardous waste
disposal site remedial programs for such sites.

3. (a) Whenever the commissioner has issued such a declaration and
throughout the time period during which such a declaration is effective,
the commissioner may request the commissioner of environmental
conservation pursuant to paragraph (b) of subdivision five of this
section and within the funds available to the department of
environmental conservation to develop an inactive hazardous waste
disposal site remedial program for such site and/or, in addition to any
other powers he may have, 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 for
such site subject to the approval of the department and (ii) to
implement such program within reasonable time limits specified in the
order. Such order shall supersede any order issued by the commissioner
of environmental conservation pursuant to section 27-1313 of the
environmental conservation law.

(b) Whenever the commissioner has issued such a declaration and
further finds that it would be prejudicial to the public interest to
delay action until an opportunity for a hearing can be provided pursuant
to this title, the department may request, pursuant to paragraph c of
subdivision five of this section and within the funds available to the
department of environmental conservation, the department of
environmental conservation to develop and implement an inactive
hazardous waste disposal site remedial program for such site. The
finding required pursuant to this paragraph 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 hearing is
provided to the 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 defenses 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 said order. The commissioner may
request the participation of the attorney general in such hearings.

5. (a) Whenever a person ordered to eliminate a condition dangerous to
life or health has failed to do so within the time specified in the
order, the department of environmental conservation shall develop and
implement or cause to be implemented, pursuant to a memorandum of
understanding between the department and the department of environmental
conservation, an inactive hazardous waste disposal site remedial program
for such site. The expense of developing and implementing such remedial
program by the department, the department of environmental conservation
or any other state agency shall be paid by the person to whom the order
was issued.

(b) In the event that the commissioner has issued a declaration that
hazardous wastes at a site constitute a condition dangerous to life or
health, 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 of
environmental conservation 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 the owner 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 a program, recovery of any reasonable expenses incurred by
the state, money damages and penalties.

(c) Whenever the commissioner has made a declaration and finding
pursuant to paragraph (b) of subdivision three of this section the
department may request the department of environmental conservation to
develop and implement an inactive hazardous waste disposal site remedial
program to contain, alleviate or end the threat to life or health. 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
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 a program, recovery of any reasonable expenses incurred by
the state, money damages and penalties.

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. If the person failing to comply with such order to eliminate a
condition dangerous to life or health is a municipality, commission or
political subdivision of the state, the comptroller shall, upon
certification by the department subject to the approval of the director
of the division of the budget of the expense of any action taken by the
department, the department of environmental conservation or any other
state agency pursuant to subdivision five of this section and upon
notification to the affected person, deduct and withhold from the next
succeeding allotments, payments or apportionments of local assistance
aid, other than education aid, to such municipality, commission or
political subdivision of the state an amount or amounts equal to the
amount expended by the department, the department of environmental
conservation or any other state agency and not paid. Prior to such
approval by the director of the division of the budget, the director
shall (a) develop a schedule of deductions and withholdings that will
ensure the continuity of essential services by such municipality,
commission or political subdivision of the state and (b) give thirty
days written notice of such deductions and withholdings to the speaker
and minority leader of the assembly, the majority and minority leaders
of the senate and the chairmen and ranking minority members of the
senate finance committee and the assembly ways and means committee. Such
deductions or withholdings will in no case take effect before one full
fiscal year of the affected person after the date of such approval by
the director of the division of the budget shall have elapsed. The
state, by virtue of such deductions or withholdings, shall not be
obligated to pay any additional or increased allotments, payments or
apportionments of state aid. Allotments, payments or apportionments
withheld pursuant to this subdivision shall be credited to the general
fund of the state.

8. Moneys for actions taken or to be taken by the department, the
department of environmental conservation or any other state agency in
connection with the elimination of conditions dangerous to life or
health pursuant to subdivision five of this section, including any
inspection or sampling of wastes, soils, air, surface water and
groundwater done upon behalf of a state agency whether or not such
action is taken prior to the issuance of a declaration pursuant to
subdivision two of 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.