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

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.