97-B - Hazardous waste remedial fund.
§ 97-b. Hazardous waste remedial fund. 1. There is hereby established in the custody of the state comptroller a nonlapsing revolving fund to be known as the "hazardous waste remedial fund", which shall consist of a "site investigation and construction account", an "industry fee transfer account", an "environmental restoration project account", "hazardous waste cleanup account", and a "hazardous waste remediation oversight and assistance account". 2. Such fund shall consist of all of the following: (a) moneys appropriated for transfer to the fund's site investigation and construction account; (b) all fines and other sums accumulated in the fund prior to April first, nineteen hundred eighty-eight pursuant to section 71-2725 of the environmental conservation law for deposit in the fund's site investigation and construction account; (c) all moneys collected or received by the department of taxation and finance pursuant to section 27-0923 of the environmental conservation law for deposit in the fund's industry fee transfer account; (d) all moneys paid into the fund pursuant to section 72-0201 of the environmental conservation law which shall be deposited in the fund's industry fee transfer account; (e) all moneys paid into the fund pursuant to section one hundred eighty-six of the navigation law which shall be deposited in the fund's industry fee transfer account; (f) all moneys paid into the fund by municipalities for repayment of landfill closure loans made pursuant to title five of article fifty-two of the environmental conservation law for deposit in the fund's site investigation and construction account; (g) all monies recovered under sections 56-0503, 56-0505 and 56-0507 of the environmental conservation law into the fund's environmental restoration project account; (h) all fees paid into the fund pursuant to section 72-0403 of the environmental conservation law which shall be deposited in the fund's industry fee transfer account; (i) payments received for all state costs incurred in negotiating and overseeing the implementation of brownfield site cleanup agreements pursuant to title fourteen of the environmental conservation law shall be deposited in the hazardous waste remediation oversight and assistance account; and (j) other moneys credited or transferred thereto from any other fund or source for deposit in the fund's site investigation and construction account. 3. Moneys of the hazardous waste remedial fund, except monies in the industry fee transfer account, when allocated, shall be available to the departments of environmental conservation, health and law for the following purposes: (a) inactive hazardous waste disposal site remedial programs pursuant to section 27-1313 of the environmental conservation law and section thirteen hundred eighty-nine-b of the public health law; (b) cleaning up or restoring to its original state any area where hazardous wastes were disposed of or possessed unlawfully in violation of article twenty-seven of the environmental conservation law. For the purposes of this section "the original state of the area" shall mean the reasonably ascertainable condition of the property immediately prior to the unlawful disposal or, if it is impracticable to determine such condition, then it is the reasonable environmentally sound condition of the area; (c) inactive hazardous waste site identification, classification, and investigation actions including testing, analyses, record searches, and other expenditures necessary to develop the state inactive hazardous waste disposal site remedial plan required pursuant to section 27-1305 of the environmental conservation law; (d) financing the non-federal share of the cost of clean up and site remediation activities, as well as post-closure operation andmaintenance costs, pursuant to the federal Comprehensive Environmental Response, Compensation and Liability Act of 1980; (e) emergency response action to clean up spills or abate other public health or environmental hazards involving hazardous wastes, except those provided for under the New York state environmental protection and spill compensation fund; (f) to undertake such remedial measures as the department of environmental conservation may determine necessary due to environmental conditions related to the property subject to an agreement to provide state assistance under title five of article fifty-six of the environmental conservation law that were unknown to such department at the time of its approval of such agreement which indicates that conditions on such property are not sufficiently protective of human health for its reasonably anticipated uses or due to information received, in whole or in part, after such department's approval of such agreement's final engineering report and certification, which indicates that such agreement's remedial activities are not sufficiently protective of human health for such property's reasonably anticipated uses; and, respecting the monies in the environmental restoration project account in excess of ten million dollars, shall provide state assistance under title five of article fifty-six of the environmental conservation law; (g) with respect to moneys in the hazardous waste remediation oversight and assistance account, to pay the reasonable costs incurred by the state in negotiating and overseeing implementation of brownfield site cleanup agreements and conducting remediation under title fourteen of article twenty-seven of the environmental conservation law; (h) with respect to moneys in the hazardous waste remediation oversight and assistance account, to provide state assistance pursuant to section nine hundred seventy-r of the general municipal law; (i) with respect to moneys in the hazardous waste remediation oversight and assistance account, non-bondable costs associated with hazardous waste remediation projects. Such costs shall be limited to agency staff costs associated with the administration of state assistance for brownfield opportunity areas pursuant to section nine hundred seventy-r of the general municipal law, agency staff costs associated with the administration of technical assistance grants pursuant to titles thirteen and fourteen of article twenty-seven of the environmental conservation law, and costs of the department of environmental conservation related to the geographic information system required by section 3-0315 of the environmental conservation law; and (j) with respect to moneys in the hazardous waste remediation oversight and assistance account, technical assistance grants pursuant to titles thirteen and fourteen of article twenty-seven of the environmental conservation law. 4. No moneys shall be available from the fund pursuant to paragraph (a) of subdivision three of this section unless the commissioner of environmental conservation finds that all reasonable efforts to secure voluntary agreement to pay the costs of necessary remedial actions from owners or operators of inactive hazardous waste sites or other responsible persons have been made except where the commissioner of environmental conservation has made findings pursuant to paragraph b of subdivision three of section 27-1313 of the environmental conservation law or where the commissioner of health has declared a condition dangerous to life or health and made findings pursuant to paragraph (b) of subdivision three of section one thousand three hundred eighty-nine-b of the public health law.6. The commissioner of the department of environmental conservation shall make all reasonable efforts to recover the full amount of any funds expended from the fund pursuant to paragraph (a) of subdivision three of this section through litigation or cooperative agreements with responsible persons. Any and all moneys recovered or reimbursed pursuant to this section through voluntary agreements or court orders shall be deposited with the comptroller and credited to the account of such fund from which such expenditures were made. 7. Notwithstanding the provisions of any general or special law, no moneys shall be available from the fund until a certificate of allocation and a schedule of amounts to be available therefor shall have been issued by the director of the budget, and a copy of such certificate filed with the comptroller, the chairman of the senate finance committee and the chairman of the assembly ways and means committee. Such certificate may be amended from time to time by the director of the budget and a copy of each such amendment shall be filed with the comptroller, the chairman of the senate finance committee and the chairman of the assembly ways and means committee. 8. The moneys, when allocated, shall be paid out of the fund on the audit and warrant of the comptroller on vouchers certified or approved by the commissioner of the department of environmental conservation or his duly designated officer. 9. All repayments and other sums collected or received by the department pursuant to loan agreements entered into pursuant to title five of article fifty-two of the environmental conservation law shall be deposited daily to the credit of the comptroller with such responsible banks, banking houses or trust companies as may be designated by the comptroller. The comptroller shall require adequate security from all such depositories. The comptroller shall, on or before the tenth day of each month, pay all moneys collected pursuant to such title and remaining to his credit in such banks, banking houses or trust companies at the close of business on the last day of the preceding month into the site investigation and construction account of the hazardous waste remedial fund. In the event a municipality shall fail to make any payment due to the state pursuant to such title and the commissioner shall have certified that such municipality has failed to make such payment, the comptroller is authorized and shall withhold from such municipality any state aid payable to it to the extent necessary to meet the certified amount of principal and surcharge due the commissioner and shall immediately pay over to the design and construction account of the hazardous waste remedial fund the amount so withheld. 10. No moneys of the fund derived from any form of tax or fee imposed by title nine of article twenty-seven or article seventy-two of the environmental conservation law or section one hundred seventy-four of the navigation law shall be used for any purpose if such use, under federal law, would preclude the collection of such tax or fee. 11. The industry fee transfer account, established pursuant to subdivision one of this section, is to provide for an equal sharing between the state and industry of the costs of debt service for bonds and notes issued to finance hazardous waste remedial work other than those costs attributable to or payable by responsible parties, a municipality or the federal government. Such sharing shall be provided fifty percent from moneys of the general fund and fifty percent from fees and surcharges designated for this purpose pursuant to subdivisions two and fourteen of this section. When debt service is paid on bonds and notes authorized by the environmental quality bond act of 1986 and sold to provide moneys for hazardous waste site remediation or by section twelve hundred eighty-five-q of the public authorities law, thecomptroller shall transfer from the industry fee transfer account to the general fund an amount equal to fifty percent of such debt service payment. 12. (a) The comptroller shall, on July first, nineteen hundred eighty-eight and on each succeeding July first until such time as the surcharges required pursuant to subdivision fourteen of this section are imposed, estimate the amount of revenues to be received by the industry fee transfer account of this fund in the next succeeding twenty months and the transfers which will be required to be made during the same period. When calculating the estimate of industry fee transfer account revenues available for the purpose of certifying, pursuant to this subdivision, when such account's balance will be insufficient to make the transfer required by subdivision eleven of this section, the comptroller shall add to the amount estimated to actually be available an additional credit factor as determined by paragraph (b) of this subdivision. If the comptroller determines that the industry fee transfer account will, at any time during the succeeding twenty month period, lack sufficient funds to make the transfer required by subdivision eleven of this section, the comptroller shall so certify to the state super fund management board, created pursuant to section 27-1319 of the environmental conservation law, and to the governor and the legislature. (b) The additional credit factor required by paragraph (a) of this subdivision shall be the sum of the following: (i) prior to March thirty-first, nineteen hundred ninety-eight, an amount equal to an amount estimated by the comptroller to be transferred from the industry fee transfer account to the general fund during the period March thirty-first, nineteen hundred ninety through March thirty-first, nineteen hundred ninety-eight, pursuant to chapter forty-one of the laws of nineteen hundred ninety as amended by chapter one hundred sixty-six of the laws of nineteen hundred ninety-one, chapter fifty-five of the laws of nineteen hundred ninety-two, chapter fifty-seven of the laws of nineteen hundred ninety-three, chapter one hundred seventy of the laws of nineteen hundred ninety-four, chapter eighty-three of the laws of nineteen hundred ninety-five, chapter three hundred nine of the laws of nineteen hundred ninety-six and a chapter of the laws of nineteen hundred ninety-seven entitled "An act making appropriations for the support of government and to amend chapter 63 of the laws of 1996 relating to making appropriations for the support of government, in relation to extending the effectiveness thereof; to amend chapter 30 of the laws of 1996, relating to a retirement incentive, in relation to payment schedules; to amend chapter 41 of the laws of 1990, relating to authorizing and directing the transfer of hazardous waste remedial fund industry fee transfer account balances and receipts to the general fund, and the state finance law, in relation to industry fee surcharges and the calculations relating thereto; to amend chapter 83 of the laws of 1995, amending the state finance law and other laws relating to state finances, in relation to the deposit of funds; and to authorize the transfer and deposit of various moneys," which is in excess of amounts estimated to be needed to make the transfers required by subdivision eleven of this section during the same period and, after March thirty-first, nineteen hundred ninety-eight, an amount equal to the amount actually transferred from the industry fee transfer account to the general fund during the period March thirty-first, nineteen hundred ninety through March thirty-first, nineteen hundred ninety-eight, pursuant to chapter forty-one of the laws of nineteen hundred ninety, as amended by chapter one hundred sixty-six of the laws of nineteen hundred ninety-one, chapter fifty-five of the laws ofnineteen hundred ninety-two, chapter fifty-seven of the laws of nineteen hundred ninety-three, chapter one hundred seventy of the laws of nineteen hundred ninety-four, chapter eighty-three of the laws of nineteen hundred ninety-five, chapter three hundred nine of the laws of nineteen hundred ninety-six and a chapter of the laws of nineteen hundred ninety-seven entitled "AN ACT making appropriations for the support of government and to amend chapter 63 of the laws of 1996 relating to making appropriations for the support of government, in relation to extending the effectiveness thereof; to amend chapter 30 of the laws of 1996, relating to a retirement incentive, in relation to payment schedules; to amend chapter 41 of the laws of 1990, relating to authorizing and directing the transfer of hazardous waste remedial fund industry fee transfer account balances and receipts to the general fund, and the state finance law, in relation to industry fee surcharges and the calculations relating thereto; to amend chapter 83 of the laws of 1995, amending the state finance law and other laws relating to state finances, in relation to the deposit of funds; and to authorize the transfer and deposit of various moneys," which was in excess of the amount required to be transferred during the same period pursuant to subdivision eleven of this section; except that the comptroller shall reduce this amount by an amount equal to the amount which would have been debited against such calculated balance during the prior estimating periods for transfers pursuant to subdivision eleven of this section, if the amount transferred from the industry fee transfer account to the general fund pursuant to chapter forty-one of the laws of nineteen hundred ninety, as amended by chapter one hundred sixty-six of the laws of nineteen hundred ninety-one, chapter fifty-five of the laws of nineteen hundred ninety-two, chapter fifty-seven of the laws of nineteen hundred ninety-three, chapter one hundred seventy of the laws of nineteen hundred ninety-four, chapter eighty-three of the laws of nineteen hundred ninety-five, chapter three hundred nine of the laws of nineteen hundred ninety-six and a chapter of the laws of nineteen hundred ninety-seven entitled "AN ACT making appropriations for the support of government and to amend chapter 63 of the laws of 1996 relating to making appropriations for the support of government, in relation to extending the effectiveness thereof; to amend chapter 30 of the laws of 1996, relating to a retirement incentive, in relation to payment schedules; to amend chapter 41 of the laws of 1990, relating to authorizing and directing the transfer of hazardous waste remedial fund industry fee transfer account balances and receipts to the general fund, and the state finance law, in relation to industry fee surcharges and the calculations relating thereto; to amend chapter 83 of the laws of 1995, amending the state finance law and other laws relating to state finances, in relation to the deposit of funds; and to authorize the transfer and deposit of various moneys," had been left on deposit in the industry fee transfer account, and had been the only amount available to cover the transfers which would have been made pursuant to subdivision eleven of this section if an actual balance had been available in the industry fee transfer account at such time. (ii) an amount, as estimated by the comptroller, equal to the amount of interest which would otherwise have been earned on the amount determined by subparagraph (i) of this paragraph, if such amount had been left on deposit in the industry fee transfer account and accrued through the period for which the comptroller is estimating the available account balances pursuant to paragraph (a) of this subdivision. 13. Upon the receipt of a certification provided pursuant to subdivision twelve of this section, the state superfund management board shall review and analyze the historical pattern of revenue received bythe industry fee transfer account and the long term projection of future transfers from such account, and shall report on or before December first of such year to the governor and the legislature its recommendations, if any, as to the sources of additional revenues which could be used to supplement the revenues to be received by such fund in order to achieve the equal sharing of debt service costs as implemented in subdivision nine of this section. 14. In the absence of further direction by law, effective April first of the fiscal year immediately following the certification by the comptroller made pursuant to subdivision twelve of this section, surcharges in the following amount shall be imposed: (a) twenty-five percent of the fees imposed by sections 72-0402 and 72-0502 of the environmental conservation law. Notwithstanding any other provision of law to the contrary, moneys collected from such surcharge shall be deposited in their entirety to the industry fee transfer account established pursuant to subdivision one of this section; (b) fifty percent of the fees imposed by section 27-0923 of the environmental conservation law, except for those fees contained in paragraphs b and c of subdivision one, and paragraph b of subdivision two of such section, which shall be exempt from such surcharge. Moneys collected from such surcharge shall be deposited to the industry fee transfer account established pursuant to subdivision one of this section. 15. On and after the date of such certification, the comptroller shall maintain records with respect to such account to reflect each unpaid transfer for the period during which it is unpaid. On and after such date, any deposits in the industry fee transfer account shall be immediately transferred to the general fund of the state until an amount equal to the total of any unpaid transfers and accumulated interest shall have been transferred to the general fund.