Section 24-604
§ 24-604 Recovery of emergency response costs. a. Each responsible
person shall be jointly and severally liable without regard to fault,
except as otherwise provided in this chapter, for the total cost
incurred by the city for response measures implemented in connection
with any emergency involving a release or substantial threat of a
release of a hazardous substance into the environment.
b. In any action brought by the city to recover its cost for response
measures implemented in connection with any emergency involving a
release or substantial threat of a release of a hazardous substance into
the environment, it shall be an affirmative defense that the release or
threat of release of a hazardous substance into the environment was
caused solely by,
(1) an act of God;
(2) an act of war;
(3) an act or omission of a third party, other than an employee or
agent of the defendant or a party whose act or omission occurs in
connection with a direct or indirect contractual relationship with the
defendant, if the defendant establishes by a preponderance of the
evidence that (A) he exercised due care with respect to the hazardous
substance concerned, taking into consideration the characteristics of
such hazardous substance, in light of all relevant facts and
circumstances, and (B) he took precautions against foreseeable acts or
omissions of any such third party and the consequences that could
foreseeably result from such acts or omissions; or
(4) any combination of paragraphs one, two or three.
c. Nothing in this chapter shall be construed to impair any remedy
that a responsible person, or a guarantor of a responsible person, has
or would have, by reason of indemnification, contribution, subrogation
or any other lawful basis against any person, including any action to
recover costs incurred for response measures.
d. Recovery by the city for response measures resulting from a release
expressly authorized or permitted by applicable federal, state or local
law shall be pursuant to existing law in lieu of this section. Nothing
in this subdivision shall be construed to affect or modify in any way
the obligations or liability of any person under any other applicable
federal, state or local law, including common law, for damages, injury,
or loss resulting from, or for response measures implemented in
connection with, any emergency involving a release or a substantial
threat of a release of a hazardous substance into the environment.
Section 24-605
§ 24-605 Lien for emergency response costs. a. All costs incurred by
the city, including but not limited to the costs of the departments of
environmental protection, health and sanitation, and the police and fire
departments, for response measures implemented pursuant to this chapter
or any other applicable provision of law shall be a debt recoverable
from each responsible person and a lien upon the real property of or at
which an owner, operator, lessee, occupant or tenant is a responsible
person and at which such response measures were implemented.
b. The mayor shall designate the agency or agencies which shall
receive for filing the certificate of expenses prepared in accordance
with section 24-606 and shall keep a record of all such costs incurred.
Such records shall be accessible to the public during business hours.
Within thirty days after the issuance of a purchase or work order for
any response measure such order shall be entered on the records of the
designated agency or agencies. All such records shall constitute notice
to all parties.
c. Any lien imposed by this section shall arise at the later of the
following:
(1) the time that the amount of any costs incurred by the city for
response measures shall have been definitely computed as a statement of
account and an agency designated pursuant to subdivision b of this
section has caused to be filed in the office of the city collector: (i)
an entry of the account stated in the book in which such charges against
the property are to be entered, and (ii) copies of any notices of
potential liability for such costs and statements reciting the dates
such notices were mailed, received pursuant to section 24-606; and
(2) the third day after a responsible person, who is an owner of real
property at which the response measures were implemented and whose
liability for any costs incurred by the city for such response measures
authorizes the imposition of a lien in accordance with subdivision a of
this section, is sent by both certified or registered mail and first
class mail notice of such person's potential liability for such costs.
Such notice may be provided prior to the mailing of the notice pursuant
to subdivision d of this section, but any notice provided pursuant to
subparagraph (ii) of paragraph two of subdivision a of section 24-610
shall not be deemed to be notice of such person's potential liability,
unless such person's potential liability is specifically referred to in
such notice.
d. A notice stating the amount due and the nature of the costs shall
be sent by both certified or registered mail and first class mail by the
city collector within five days after such entry pursuant to paragraph
one of subdivision c of this section to the last known address of the
person whose name appears on the records in the office of the city
collector as being the owner or agent or as the person designated by the
owner to receive tax bills or, where no name appears, to the property,
addressed to either the owner or the agent. Such notice shall have
stamped or printed thereon a reference to this section. Such notice
shall constitute notice of the potential liability of such owner for
such costs for purposes of paragraph two of subdivision c of this
section, where no prior notice of potential liability for such costs has
been sent.
e. The city collector shall maintain copies of any notices of
potential liability for the costs of response measures, together with
statements indicating the dates such notices were mailed, filed by any
agency designated pursuant to subdivision b of this section, and copies
of any notices sent pursuant to subdivision d of this section, together
with statements reciting the dates such notices were mailed.
f. If such costs are not paid within thirty days from the date that
notice is sent pursuant to subdivision d of this section, it shall be
the duty of the city collector to receive interest thereon at the rate
of interest applicable to such property for a delinquent tax on real
property to be calculated to the date of payment from the date of entry.
g. Such costs and the interest thereon shall continue to be, until
paid, a lien on the property. Such lien may be satisfied in accordance
with the provisions of section thirteen hundred fifty-four of the real
property actions and proceedings law.
h. Any lien imposed by this section shall be subject to the rights of
any mortgagee or lienor whose interest is perfected before notice of the
lien has been filed in the office of the city collector, as provided in
subdivision c of this section. Any such mortgagee or lienor shall be
afforded the same protections against such lien as afforded under law
against a judgment lien which arises out of an unsecured obligation and
which arises as of the time of the filing of the notice of the lien
imposed by this section.
i. (1) In any proceedings to enforce or discharge the lien, the
validity of the lien shall not be subject to challenge based on (i) the
lawfulness of the response measure implemented; or (ii) the propriety
and accuracy of the items of expenses for which a lien is claimed,
except as provided in this subdivision.
(2) No such challenge may be made except by the owner of the property.
(3) An issue specified in paragraph one which was decided or could
have been contested in a prior court proceeding or action shall not be
open to re-examination.
(4) With respect to any issue specified in paragraph one of this
subdivision the certificate filed pursuant to section 24-606 shall be
presumptive evidence of the facts stated therein.
j. In addition to establishing a lien, the city may recover such costs
and interest thereon by bringing an action against the responsible
person. The institution of such action shall not suspend or bar the
right to pursue any other lawful remedy for the recovery of such costs.
Section 24-606
§ 24-606 Certificate of expenses. Upon the completion of any response
measure giving rise to a lien, the city agency implementing such
response measure shall file with the agency or agencies designated by
the mayor pursuant to section 24-605 a certificate setting forth the
work done and the expenses incurred and certifying that such expenses
were necessary and proper in the exercise of its lawful powers and,
where applicable, apportioning such expenses among lots or buildings
belonging to different persons. The city agency implementing such
response measure shall also file a copy of any notices of potential
liability for such expenses it has mailed for purposes of paragraph two
of subdivision c of section 24-605 and a statement reciting the date of
any such mailing.
To the extent possible under law, Friends of Devin Balkind for Public Advocate has waived all copyright and related or neighboring rights to New York City Administrative Code. This work is published from: United States.
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