Bill S492-2011

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

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.

Details

Actions

  • Jan 4, 2012: REFERRED TO ENVIRONMENTAL CONSERVATION
  • Jan 5, 2011: REFERRED TO ENVIRONMENTAL CONSERVATION

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.


Text

STATE OF NEW YORK ________________________________________________________________________ 492 2011-2012 Regular Sessions IN SENATE (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
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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