General Framework

(1)

Establishes the "Voluntary Remediation Act" as ECL Article 27, Title 14

Amends Article 27, Title 13 (New York's existing "superfund" program)

No change.

Establishes the "Land Remediation and Redevelopment Act" as ECL Article 26.

Amends Article 27, Title 13

Creates a "land redevelopment and remediation office" within DEC to administer Title 14.

Creates "NYS Land Reuse Opportunity Areas Act" as Article 18-D of General Municipal Law

Establishes the "Brownfield site access, acquisition and remediation assistance" program as section 16-i of the UDC Act

A.9265-A (Brodsky) creates new Article 58, Brownfield Site Remediation Act

A.9203-B (Lopez) establishes additional brownfield incentives [see Financial Assistance section]

[Note that all provisions discussed below apply only to the BSR Act, unless otherwise noted.]

Definition of hazardous wastes

(2)

Amends Title 13 definition of hazardous wastes to include "hazardous substances," as defined in the state's chemical bulk storage program  (6 NYCRR Part 597).

 "Hazardous substances" exclude:

 * Wastes from nuclear "incident" and nuclear processing plants.

  * Residue from vehicle exhaust

  * Natural gas and petroleum

 Part 375 definition of "hazardous waste" would be deemed amended to be consistent with above upon adoption of this bill.

Additional exclusion for:

 * "normal application of fertilizer and pesticides."

  * any substances migrating from a municipal solid waste disposal facility.

 Clarifies that the Title 13 definition of hazardous wastes does not affect other programs (e.g., RCRA)

Title 13 is expanded to include hazardous substance sites

 Hazardous substances include:

 * CBS list (6 NYCRR Part 597)

 * Clean Water Act haz. substance list (33 USC 1321(b))

 * CERCLA list (42 USC 9602)

 * Federal RCRA list (42 USC 6921)

 * NYS RCRA definition (ECL 27-0903)

 * CWA toxic pollutants list (33 USC 1317(a))

 * Clean Air Act "hazardous air pollutants" (42 USC 7412)

  * TSCA "imminently hazardous" materials (15 USC 2606)

 * Wastes from nuclear "incident" and nuclear processing plants.

 Excludes:

 * petroleum and natural gas and related products

 * residues from vehicle emissions

Defines "hazardous substance" to include:

 * CBS list (6 NYCRR Part 597)

 * Clean Water Act haz. substance list (33 USC 1321(b))

 * CERCLA list (42 USC 9602)

 * Federal RCRA list (42 USC 3001)

 * CWA toxic pollutants list (33 USC 1317(a))

 * Clean Air Act Ahazardous air pollutants" (42 USC 7412)

  * TSCA "imminently hazardous" materials (15 USC 2606)

 Excludes petroleum, but includes "historic petroleum releases"

Program Financing

(3)

Pay-as-you-go funding for both superfund and oil spill fund.

 New revenues from:

 *  hazardous waste program fees surcharges (ranging from $4,000 to $360,000), with total new revenues of $19 million.

  * 100% increase in petroleum bulk storage registration fees for non-major facilities (<400,000 gallons), with total new revenue of $1 million.

 * General Fund resource. 

Disposal of cleanup wastes under Title 14 are exempt from per ton special assessments on hazardous waste management/disposal.

Title 13-related civil penalty income (including any income from "treble damage" assessments) is diverted from the General Fund to the state's remedial fund.

Existing hazardous wastes fees will support remedial fund after 50% of 1986 EQBA debt service has been collected.

Superfund" spending for FY 2002 is about $80 million.

Dedicates $80 million per year of revenues generated by the existing Article 9-A corporate franchise tax to the state's remedial fund.

Eliminates the Governor's proposed increases in hazardous waste program fees and petroleum storage facility registration fees.

Keeps Article 27-related civil penalty income in the General Fund.

Not addressed.

For purposes authorized in the Brownfield Site Remediation Act (A.9265-A) :

  * $75 million from CWCA bond act for projects within designated brownfield areas

  * $7.5 million for municipalities and CBOs for inventory, planning and  site acquisition efforts 

 No funding provided for purposes authorized in A.9203-B.

Voluntary Cleanup Program (Title 14) Eligibility

(4)

Hazardous waste sites (including hazardous substances sites) and petroleum sites are eligible.

 Responsible parties are eligible.

 Ineligible sites include:

 * NPL sites

 * Class 1 and 2 sites, if VCP proposed by owner or RP

 * Sites subject to pending enforcement actions

 * Sites covered by RCRA permit

RCRA corrective action sites would be eligible for Title 14 program.

 All contaminated sites -- except NPL sites B  are eligible to participate in Title 14, whether or not the site would be subject to state enforcement under Title 13 or the Oil Spill Program.

Sites already subject to an order or agreement are eligible if:

 * remediation has not "substantially commenced"

 * RIFS is done, but project design is not "substantially commenced"

 * all previously agreed-to remedial

 activities have been completed.      

All parties B including RPs B  are eligible, within limits discussed below.

 Hazardous substance and petroleum sites are eligible.

 RCRA interim status sites are eligible.

 Class 1 sites, NPL sites, permitted RCRA corrective action sites, and sites subject to federal cleanup order are ineligible.

 Class 2 sites are eligible if:

  * an RP submits an application within 6 months of receiving a DEC notice or

  * it is subject to a DEC order, but no FS has been completed and approved.

Ineligible sites include:

  * Class 1 and 2 registry sites,

  * NPL sites,

  * RCRA corrective actions sites,

  * oil spill sites that are subject to state order,

  * sites subject any federal or state environmental remediation or enforcement action.

 DEC can reject project applications if they would not serve "the public interest."

"Brownfield redevelopment areas"

 *designated by state based on economic (poverty, unemployment, population loss) or "hardship" factors.

  * Liability protections apply within designated BRAs.

 "Environmental Opportunity Zones" are:

 * designated by municipal resolution and/or in response to public petition.

  * one or more contaminated, underutilized properties.

  * Economic development incentives apply only within municipally designated EOZs.

Timetable for review of Voluntary cleanup projects

(5)

DEC review periods:

 * 60 day review of program eligibility

 * DEC will make "best effort" to review proposed voluntary agreement within 60 days

Eliminate eligibility review period; all applications accepted, with later DEC assurance of qualification.

 Provide that DEC shall render decisions as expeditiously as possible, but no later than the time limits proposed by the Governor.

DEC review periods

  * 20 day review of application  completeness

 * 60 day review of all workplans (joint review with DOH), and 30 days for any revision.

 * 45 day review of final project report

 * timetable may be delayed if TAG grant has been applied for (but delay cannot compromise project.)

Remediation project review process includes:

 * 60 day DEC review of  project eligibility

 * 45 day public comment period on draft investigation plans

 * 60 day public comment on remedial plan

 * 90+ day DEC review of remedial plan

Cleanup Goals and Target Risks

(6)

Under Title 13, Title 14, and Navigation Law (except immediate response actions):

 * cleanup goal is "protective of public health and the environment."

  * Minimum requirement is elimination or mitigation of all significant threats.

For immediate response actions under the Navigation Law, goal is restoration of environment to pre-spill conditions.

Adopts Governor's cleanup goals and minimum requirements.

Cleanup objectives are based on the current,  intended and B if ascertainable B  reasonably anticipated future use of a site.

 For soil standards, target risks of 1x 10^-6 for known and probable carcinogens, 1x10^-5 for possible carcinogens; hazard index of 1 for non-cancer health risks.

 For oil spill program only, cleanup goal for immediate response actions is to achieve pre-release conditions or, if impractical to determine such conditions, to a "reasonably sound environmental condition."  For significant threat sites, goals is protection of public health and the environment through elimination or mitigation of significant threats, based on the current, intended or reasonably anticipated use of the site.  For nonsignificant threat sites, goal is removal to extent practicable.

Target risks are:

 *  1 x10^-6  for cancer risks.

*  Hazard index of 1 for non-cancer risks.

 * allows for "more protective" standards if

     deemed generally "cost effective"  and

     technically achievable.

Cleanup "goal"  for all brownfield sites is pre-disposal conditions, where feasible, and protection of groundwater classification. 

 Minimum requirement is the elimination or mitigation of all significant threats

DEC will develop "presumptive remedies" to achieve the cleanup goals, with specific presumptive remedies designed for different contaminants and site conditions.

Technical Advisory Committee

(7)

Appointed by DEC and DOH.

 Comprised of public health and environmental advocates, business and municipal representatives.

"Charge" is to make recommendations on site use-based soil cleanup standards.

Role of Advisory Panel is not changed.

 Adds "academicians" to list of panel members.

Appointed by Governor, legislature and Attorney General.

 Comprised of state officials and representatives from environmental, environmental justice and business groups, community organizations, developers and municipalities.

 "Charge" includes:

 * identify and recommend standards for contaminants of greatest concern

  * recommend methodology for site-specific standards

 *  recommend land use-based standards

 * conduct risk analysis for common soil contaminants

 *  assess feasibility achieving more protective remediation levels

 *  propose process for revising standards

 * develop program for using "presumptive remedies"

 * develop method for identifying ubiquitous contamination

 *  recommend technology development incentives.

None.

Soil Standards

(8)

DEC is directed to adopt cleanup standards based on input from advisory committee and any other data or information.

 Technical advisory committee to make recommendations on tiered standards:

 * Tier 1 is for unrestricted site use

 * Tier 2 is for restricted use based on future site use

 * Tier 3 is process for developing site-specific cleanup levels.

Requires use of site-specific risk assessments until standards are adopted.

DEC is explicitly directed to adopt three-tiered soil cleanup standards in regulation based on:

 * health risks

 * background levels and exposure routes

 * sensitivity of specific sub-populations

 * environmental fate of contaminants

 * protection of groundwater, surface water, air and environmental receptors (separate standards are adopted to apply where groundwater is not a current or future water supply.)

 * synergistic, antagonistic and cumulative effects.

 Provides greater detail on structure of Tier 2 standards.

 Clarify that Tier 3 will allow range of risk assessment options, including modification of DEC standard-setting formula to address site-specific conditions.

Clarify that mixed-Tier cleanups are allowed (e.g., use of Tier 2 values for some contaminants and Tier 3 assessment for others.)

Land use-based standards are based on risk calculations or lower residual contamination achieved in practice (if cost effective), whichever is more protective.

 Tiers include:

 * naturally occurring conditions

 * Land use-based standards

 * methodology-based standards

 Standards must address additive and synergistic effects, and exposure to "sensitive" sub-populations

In "pervasively contaminated areas," where standards are not achievable, site-specific subsurface soil standards must protect surface users and:

 * use site specific leaching procedures to protect groundwater.

 * in ubiquitously contaminated groundwater areas, standards should reduce total contaminant loadings to groundwater.

See "Cleanup Goals and Target Risks" (6)

Groundwater Standards

(9)

No provisions addressing groundwater.

For actual or likely drinking water supplies:

 * Part 703 standards apply if they can be "practically attained."

  * If attainment of standards in not practical, minimum requirement is "protection of public health and the environment;" and the removal, control or isolation of "source areas."

 If not a potable supply, cleanup objective is "prevention of significant deterioration" by removal, control or isolation of "source areas."

 Presumption that groundwater will be water supply if: currently being used as public supply, identified as likely future supply by public supplier, or a sole source aquifer.

 Presumption that drinking water standards do not apply if groundwater:

 * is not used or intended for use as potable supply

 * is not potable due to natural conditions

 * cannot provide 1 gal/minute yield for 12 hours.

 * contaminated by multiple sources. 

DEC/DOH develop statewide strategy to assess resources and prioritize cleanups, with priority given to sites impacting drinking water supplies.  Goal for all cleanups pursuant to state groundwater strategy  is "restoration" to water quality (drinking water) standards. sess resources and prioritize cleanups, with priority given to sites impacting drinking water supplies.  Goal for all cleanups pursuant to state groundwater strategy  is "restoration" to water quality (drinking water) standards.

All remedies shall be protective of groundwater based on its best use classification under ECL 17-0301.

Investigation and

Cleanup Requirements;  Remedy Selection Criteria

(10)

Current Part 375 remedy selection criteria is adopted into Title 13, with "intended site use"  as additional criteria.

 Under Title 14:

 * owners and RP must investigate and remediate on and off-site contamination.

  * NCRPs and volunteers investigate on site contamination, assess off-site exposure pathways; but are not responsible for off-site remediation.

  * If offsite contamination poses significant threat, DEC orders RP to do cleanup or uses state funds.  Costs are recoverable by DEC, but not subject to "treble damage" provisions.

 Under both Title 13 and Title 14:

 * if the site is not actively used for industrial or commercial purpose, and is adjacent to residential property, there is rebuttable presumption to clean site to residential standards.

  * There is a preference for remedies that address "hot spots."

For Title 13 projects only, establishes remediation hierarchy of:

 * on- or off-site destruction

 * on- or off-site treatment

 * on- or off-site solidification/chemical fixation

 * on- or off-site control, or removal and isolation.

 Remedy selection must explicitly  consider cost-effectiveness of alternatives and implementability with proven technology.

Preference for remedies that address "source areas"

 Defines "source area" to include contaminated media likely to contribute contaminants at a level which poses a significant threat.

"Residential presumption" only applies if contaminated media is immediately adjacent to residential property; presumption can be rebutted if proposed cleanup is protective of adjacent land uses.

 Under Title 14, off-site exposure assessment is discretionary for non-responsible party volunteers.

GENERAL

 * All onsite sources must be investigated and remediated.

  * Non-RPs and NCRPs not liable for off-site contamination, except that NCRPs are responsible for off-site remediation if contamination poses a significant threat.

  * Work plans not required to be consistent with the national contingency plan (NCP).

 * Volunteer selects cleanup category for site

 * Adopts current Part 375 remedy selection criteria.

  * Feasibility study not required to select remedy.

 SOIL (for Class 2 sites only)

  * If maintenance of institutional controls is in doubt, DEC can require unrestricted use cleanup, more frequent certification, or financial assurances.

Investigation must characterize on and off-site contamination

 Remedial plans must:

 * meet statutory cleanup goals

 * be consistent with Part 375 criteria

 * not be inconsistent with the NCP.

 Remediation plan addresses on-site contamination only.

 If applicant proposes use of a DEC "presumptive remedy,"  it must demonstrate applicability, and B where applicable B demonstrate why "higher ranked"  remedies were not selected..

Investigation and

Cleanup Requirements;  Remedy Selection Criteria (CONT'D)

(10)

GROUNDWATER

 * All parties conduct immediate short term cleanups on-site (i.e., "bulk reduction"  and plume containment); CRPs do long term cleanups as determined by state groundwater restoration strategy.

  * DEC is responsible for offsite contamination except at CRP sites,  and NCRP sites that pose a significant off-site threat.

  * NCRP and volunteers not liable for offsite cleanups in ubiquitously contaminated areas. "Area wide" cleanups are financed by RPs.  Future site owners have no liability for groundwater cleanup.

  * If GW restoration is infeasible at a  stand-alone site, short term cleanup is "bulk reduction" of contaminants; long term cleanup is performed in accordance to statewide "restoration" plan.

 In areas with multiple sources, DEC shall develop area-wide plan to be financed by RPs, with  buyout provisions for de minimis parties.

Enforcement Provisions

(11)

Under Title 13 and Navigation Law:

 * allows DEC to implement remediation program after "reasonable attempts"  to secure relief from RP.

  * If DEC is unable to obtain voluntary commitment from RP after "reasonable efforts,"  DEC can implement cleanup and recover all costs plus penalty of 1 to 3 times the state's expenditures.  RP is liable for penalty if it refuses to negotiate with DEC or exhibits "bad faith."

 Under Title 14, DEC can order a contributory RP to conduct offsite remediation at sites that pose a significant threat to the environment.  Costs are recoverable by DEC, but not subject to "treble damage"  provisions.

 Extends existing Title 13-related civil and criminal penalties to obligations imposed under Title 14 regarding access to sites by DEC personnel or private persons acting under DEC order.

DEC must exert "reasonable attempts" to secure relief from all potentially responsible parties before it can implement a  remedial program using state funds.

Deletes "treble damage" proposal and other expanded enforcement authority.

 Makes clear that DEC cannot order remedial activities unless an RIFS indicates that remediation is required.

DEC issues "notice directive"  to all RPs at significant threat sites.

RPs can respond by raising CERCLA defenses (act of God, war, third party), or by applying for Title 26 participation (application must be submitted within 6 months.)

In "negotiating"  their status with DEC, if RP acts in "bad faith"  they are issued recalcitrance notice and can be subject to penalty of up to 3 times the state's expenditures at a site.  "Bad faith"  defined as submitting false or misleading information, or raising arguments beyond scope of  "reasonable legal, scientific or engineering acceptability"  for purpose of delay.

 De minimis settlements are authorized.

None.

Liability Standards, Defenses and Exemptions

(12)

Title 13 and Navigation law is amended as follows:

 * definition of  "person"  is amended to exempt lenders, public corporations, fiduciaries and industrial development agencies that hold title to property but do not participate in management

 * adopt CERCLA defenses (Acts of God, war, and acts/omissions of unrelated third parties.)

  * "CERCLA defenses"  are lost if site owner transfers site without disclosing known contamination.

Entity claiming a liability exemption or defense under the Navigation Law also must waive any claims against the Oil Spill fund.

In addition to the Governor's proposal, this bill would:

  * Exempt scrap dealers and other recyclers from liability, consist with recent federal changes.

  * Define "owner"  to include site owner immediately preceding municipal taking of a site.

  * Place liability on owners and "any person responsible for disposal of hazardous waste at a site"

 Authorizes the DEC to enter into de minimis settlements with entities that contributed low volume and/or low toxicity wastes to a multiparty site.

Article 26defines:

 * "contributory responsible party"  (CRP) as owner/ operator at time of contamination, persons involved with disposal, treatment and transportation of hazardous substances (no specific reference to generators).  Migration onto site is not considered as an onsite release.

  * "noncontributory  responsible party"  as owner that is not a CRP.

  * Entities that purchase sites after submitting VCP application are not considered RPs.

 Establishes municipal exemption if sites acquired, but not developed by, the municipality (including industrial development agencies.)

 Adopts security interest exemption for lenders that take title but do not participate in management of the site.

 Exempts fiduciaries from liability.

 Exempts not-for-profits from liability if they take and keep title and the site is used for "community purposes," unless the NFP develops the site. developer. unless the NFP develops the site.

Defines "responsible party"  as;

 * current owner/operator of brownfield site

 * owner/operator of brownfield sites at time of disposal of hazardous substances

 * persons who contracted for transport, treatment or disposal of hazardous substances

 * transporters.

States that RPs are liable for state cleanup costs, third party response costs, and natural resource damages.

 Non-RP definition includes CERCLA defenses (acts of God, war and unrelated third parties.)

 Liability exemption is provided for:

 * lenders that foreclose on property,

 *  public corporations and not-for-profits that take title of  property 

 * exemption only applies within designated brownfield areas

 * entities cannot participate in management of the site. contamination.

Liability Releases

(13)

Under Title 13, Title 14 and Navigation Law:

 * covenant not to sue is issued after completion of remediation project.

  * Covenant is issued by DEC, binding on state and addresses all liability to the state (RPs do not receive release for natural resource damage claims.)

  * Release is transferable to non-RPs

 DEC also issues post remediation "certificates" to NCRPs, which makes them eligible for tax incentives related to the site.

Under both Title 13 and Title 14, establishes separate release provisions to include:

 * release granted after successful completion of an RI, FS or interim remedial measure (IRM),

  * release granted after successful completion of required remedy.

 Under Title 14, liability releases can be provided to Anon-volunteers" that settle their liability with the state (e.g., an RP that conducts an off-site exposure assessment at an VCP site.)

Release issued in conjunction with DEC completeness certificate, after all workplan activities are complete.

 Post cleanup releases cover remediation liability for claims by the state and contribution claims.

 Future owners are exempt from any groundwater liability if short-term cleanup has been completed.

 Non-responsible parties and NCRPs are released for natural resource damage claims.

AG has authority to "decline to execute" cleanup agreements containing liability release.

 Release is transferable to future owners, but not RPs that were not party to the agreement.

Covenant not to sue;

 * is binding on the state

 * if applicant is responsible for contamination, covenant does not address natural resource damage claims.

  * is transferable to other non-RPs.

Reopeners and/or reservations applied to liability releases

(14)

For Title 13, Title 14 and Navigation Law, reservations include:

 * Non-compliance with terms of a DEC order

 * Fraud

 * New release of hazardous substance

 * Change in site use that requires additional remediation in order to be protective.

 * New information related to contamination at the site

 * DEC determines that cleanup is "not protective"

 If site cleaned up to unrestricted use levels, no reopener based on "change of use"

For NCRP or volunteer, the "not protective" reservation does not apply if cleanup is to unrestricted use levels.

Under Title 14, proposed change in use may require additional cleanup by person proposing the change in use (this provision is similar to existing provision of Title 13.)

Under Title 13 and Navigation, DEC-proposed reservations are amended as follows:

 * only applies to those Anew releases" that are not investigated and addressed as part of the remedial program.

  * "New information" reservation only applies if it means the remedy is no longer "protective," based on site use.

  * "Not protective" finding can only be based on previously unknown contaminants, and must be based on current, intended or anticipated site use.

At Title 14 sites, the only reservations that apply to  non-responsible parties are:

 * fraud

 * failure to comply with the remedial agreement, and

 * change in site use.

DEC has "preponderance of evidence" burden to invoke any reservation.

Include:

  * unknown conditions that make site not protective for current use.

 * noncompliance with terms of cleanup agreement.

 * change in standard/risk factor that make site unsafe for current use.

 * fraud related to the remediation of the site.

 If site is cleaned up to "natural conditions," only the "unknown conditions" and fraud reopeners apply.

 If site is cleaned up to unrestricted residential use standard, it is exempt from "change in standard" reopener.

Change in use may require additional cleanup by person proposing the change in use.

Reservations include:

  * unknown environmental conditions if site no longer meets requirements of remedial action plan,

 * non-compliance with remedial action plan,

 * change in environmental standard if site no longer meets requirements of remedial action plan (applies to RPs only)

Natural Resource Damage Claims and Cause of Action

(15)

Under Title 13:

 * establishes state-level cause of action for natural resource damage claims, including damage to, loss of or loss of use of natural resources.

  *Imposes a 6 year "statute of limitations." on state-level natural resource damage claims from date of completion of remedy.

Deletes proposed natural resource damage provisions.

Not addressed.

Not addressed.

State Cost Recovery

(16)

Under Title 13 and Navigation Law, state can recover its expenditures plus "treble damages"   in state court.

Under all three programs:

 * owners and RP must pay all project oversight costs, and all previous state expenditures at site.

  *Non-RPs must pay all oversight costs.

  * state cost recovery subject to 6 year statute of limitations from date of initiation of on-site construction of remedy.

Cost of technical assistance grants are not recoverable from RPs or volunteers.

DEC can only recover "equitable share" of state expenditures from RPs through state-level cost recovery provision.

Deletes "treble damage" recovery.

DEC can only recover "reasonable expenses."

Under Title 14, non-responsible parties are required to pay a *2000 application fee in lieu of state oversight costs.

Make explicit that cost of TAGs are not recoverable from RPs.

DEC may require VCP participant to repay all reasonable state oversight costs. 

Program participants must pay *1,000 application fee; DEC can waive fee.

Participant must pay all  "state costs" associated with oversight of project. 

DEC may require participant to finance citizen participation grant, with such expenses allowed as a credit against state cost recovery.

Contribution Claims

by RPs and Volunteers

(17)

Under Title 13:

 *  RPs reaching settlement with DEC receive protection from contribution claims by other RPs.

  * two or more RPs that have reached settlement with state can seek contribution from other RPs in state court.

  *Owner or RP can recover 3 times the "equitable share" from other RPs that refuse to participate in the settlement, if they give 1/3 of such recovery to the state.

Under Title 13 and Title 14:

 * any party conducting cleanup can seek contribution from RPs in state court.

  *  Courts can use equitable factors in awarding claims.

  * 6 year statute of limitations on claims from date of judgment, DEC order or agreement regarding the costs which are subject to the claim.

Any party reaching settlement with DEC under either Title 13 or Title 14 can pursue contribution claims in state court.

  * only applies to significant threat sites

  * recovery is limited to reasonable expenses, and cannot exceed costs of achieving an "unrestricted" site cleanup.

 Court may take into account equity issues is approving claims.

Volunteers and RPs reaching settlement with state can pursue contribution claims and recover "any" cleanup costs incurred. 

Claims cannot include costs related to the redevelopment of sites

 Courts can use equitable factors in awarding claims.

 6 year "statute of limitations" on claims.

 VCP must waive right to seek recovery from oil spill fund.

Not addressed.

Oversight of Institutional and/or Engineering Controls

(18)

Title 13 authorizes use of institutional/engineering controls and part of remedy; such controls are subject to annual certification requirement and DEC oversight.

DEC to establish database of sites with institutional or engineering controls.

Allows for DEC approved changes to institutional and/or engineering controls

Allows annual certifications to identify upsets, interruptions and/or terminations and steps taken to respond to such occurrences.

Requires notification to public water suppliers if upset of controls that may affect water supply.

New permit program established for engineering controls, permits are renewable at intervals to be determined by DEC.

Certification process established to oversee compliance with site use restrictions.

Institutional controls are tracked on a geographic information system (GIS).

Use restrictions, institutional controls, engineering controls and operation and maintenance requirements must be created in an environmental easement.

Creates new Article 71, Title 36 procedures for imposing environmental easements.

DEC can require financial assurances to assure maintenance of institutional and/or engineering controls.

Criteria for Financial Incentives

(19)

For any Title 14 site, non-RP are eligible for financial incentives, as are site owners that took possession after contamination occurred, once DEC issues a "remediation certificate." 

Credits not available for housing other than "commercial housing."

Same.

NCRPs are eligible

Preference is given to projects in distressed areas and those located within land reuse opportunity areas (LROAs.)  75% of incentive funds are to be spent within LROAs.

All property within LROA is eligible if a local reuse plan is finalized

Municipalities and joint muni/community based organization (CBO) designations of "land reuse opportunity areas" (LROAs).  Criteria includes: concentration of sites; economic distress; redevelopment potential; promotion of local economic or social revitalization.  Designations approved by ESDC.

Economic development incentives apply within designated "environmental opportunity zones."

  * zones are established by municipal resolution

 * properties must be "abandoned or underutilized"  within a state-designated brownfield area.

Financial Assistance

(20)

Tax credits of 8% (PIT) or 10% (corporate taxes) for costs of site preparation and tangible property placed into service w/i 3 years of the cleanup.  Additional 2% credit for cleanups to unrestricted use levels.  Credits capped at *40 million per year.

Includes a "takeback provision" for property taken out of service, revocation of a remediation completeness certification, and the triggering of a remediation "reopener"

Includes Governor's proposals.

Adds:

 * authorizes municipal revolving loan funds for brownfield projects, with initial state funding.

 * expands purpose of IDAs to include IHWS and brownfield projects.

Creates new state-subsidized VCP site insurance program that includes:

 * cost overrun coverage

 * loan loss coverage.

  * Projects within LROAs "given priority" in all state remediation, infrastructure, financing, and job training programs.

  * Site acquisition grants for both  municipalities and CBOs.

  * Site assessment grant and loans for private sites in business districts.

   * Funding for "investigation grant and loan funds"  managed by local development corporations or CBOs.

   * Grants to munis., CBOs and business to clean sites for sectors "most likely" to utilize brownfields .

   * Remediation project grants and loans for municipalities and CBOs.

   * Grants to CBOs for "community facilities" at brownfield sites.

   * State "seed" financing for "not-for-profit land reuse foundations."

  * Base tax credit of 25% of cleanup and  tangible property costs; 50% credit if cleanup does not rely on "institutional controls;" additional 75% credit for on-site remediation of groundwater.  Cap is *500,000 per project.  Credit can be sold.

   * ESDC  authorized to purchase tax credits awarded pursuant to this act. 

"Brownfield Redevelopment Act" incentives include:

 *  abatement of increased real property taxes (see details below)

 * a state tax credit of up to 50% of  delinquent real property taxes paid (not to exceed cleanup costs; RPs are not eligible.)

 * municipal tax increment bond financing for brownfield projects.

 * a remediation income tax credit of 25 percent of cleanup costs.

  * Tax credits can be transferred to other non-RP taxpayers.

A.9203-B incentives to municipalities and CBOs  include:

 * project planning and redevelopment grants

 * site acquisition grants,

 * site remediation/redevelopment grants and revolving loan programs.

 Other A.9203-B incentives include:

 * site assessment grants/revolving loan fund for privately owned brownfield sites.

 * industry sector-specific project  grants,

 * community facility development grants, and

 * startup grants for "not-for-profit land reuse foundations."

Real Property Tax Incentives

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Credit against corporate or state income taxes based on the increased real property taxes assessed against a parcel, and the number of new jobs created.  This credit:

 * only applies outside the "metropolitan [NY] commuter transportation district."

  * provides tiered credits for sites between 10 and 100 acres, and for sites >100 acres..

Authorizes municipalities to provide RPT abatement to volunteer or small business RP that conducts cleanup.  Credit against increased value equals 50% in year one, declining 5% per year for 10 years.

Authorizes municipalities (by legislative resolution) to cancel back taxes on properties remediated by persons not responsible for the release or disposal of contaminants at such site (i.e., Anon-contributory RPs.)

Municipality is relieved from school tax liability for  sites which it owns and is conducting brownfield cleanups.

  * Tax districts can dedicate increased RPT revenues to fund additional brownfield projects

  * Tax districts can cancel or reduce past taxes, interest and penalties on LROA sites.

  * State may reimburse school districts for lost RPT revenues.

Real property tax exemption on increased value of 50% in first year, credit is reduced by 5 percent annually in years 2 thru 10.

Municipalities must:

 * authorize abatement program by local law,

 * approve remedial action plan for site to be eligible for RPT abatement.

Abatement is transferable, if new owner abides by cleanup agreement.

Citizen Participation

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Under Title 14:

 * public notice and/or ENB notice required for program applications, completion of site investigations and finalization of workplans.

  * Public notice and 45 day comment period on final workplans.

  * Requires public hearing on significant threat sites.

 Under Title 13, DEC can provide technical assistance grants to municipalities, community groups, or combination thereof, of up to *50,000, for the review of remediation programs conducted under Title 13.

 Under Navigation Law, for non-immediate response actions:

 * requires public notice at initiation and completion of investigations,

 * requires notice and 45-day comment period on submission of proposed remedy.

Volunteer may pay upfront costs of TAG grants at non-listed sites.

Requires that recipients of technical assistance grants be Alocal" groups that are "directly" affected by a site.

 Provision regarding first-instance financing of TAG grants is clarified to make such financing at the volunteer's discretion only.

DEC must issue fact sheets on all VCP site projects.

 Public notice of VCP program applications.

 Public hearing required on proposed restricted use of "significant threat" sites that are adjacent to residential property.

 DEC can provide TAG grants of up to *50,000 per site to municipalities, CBOs and community groups.

Project sponsors must prepare and implement a citizen participation plan, and establish a project document repository

 Project-specific public review process includes:

  * 45 day public comment period on draft site investigation plans;

  * 60 day public comment, and  hearing, on remedial plans

  * public distribution of fact sheets before the start of cleanup

  *  "public availability session" to explain the project

 Additional citizen participation requirements for "brownfield redevelopment area" and "environmental opportunity zone" designations.

 DEC is required to develop community participation handbook to guide these CP efforts.

 120 comment period, and hearings, on DEC's presumptive remedies.

Planning Grants

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Secretary of State can award TAG to municipal and CBO/municipal cooperatives, for brownfield area redevelopment planning and site investigations.  Local 25% match is required.

Modifies the Governor's proposal to specify that redevelopment plans can only indicate (rather than define) future use of brownfield sites.

 Municipal share is limited to 10%.

 Grants to be paid directly to municipalities, rather than through reimbursements.

"Preplanning grants" for municipalities and to community based organizations to promote the designation of LROAs.

 Project planning and pre-development activity grants to municipalities and community-based organizations.

Municipalities and community-based organizations (and joint muni/CBO applicants) eligible for:

 * preplanning grants related to site reuse or area designation, and

 * brownfield area redevelopment plans.

Municipal Brownfield Program Amendments (1996 CWCA Bond Act)

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  * increases state share of project costs to 90%

 * allows municipalities to use federal funds for their 10% match

 * allows municipalities to recoup all costs before reimbursing the state using proceeds from the sale of remediated property

 * eliminates requirement that municipality share "profits" from sale of remediated property with state (above and beyond reimbursement of state expenditures.)

Same as Governor's Program Bill.

Not addressed.

Defines Apriority" brownfield project as one within a designated BRA.  Priority projects are eligible for:

 * 90% state financing,

 * 100% state financing for groundwater remediation.

Creates new criteria for all CWCA Title 5 projects, including:

 * avoidance of disproportionate impact on minority communities.

 * "community acceptance."

 * excludes all sites that are ineligible for BRA incentives (see #4 above.)

Other Provisions

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Under Title 14, IHWS listings are postponed as long as program participant complies with the Act.  Sites are reassessed after completion of remedy.

 Modifies Navigation Law/oil spill cleanup program to define Anon-immediate response cleanups." This new class of cleanups will be subject to cleanup standards, enforcement provisions, liability standards and exemptions discussed above.

 Title 14 agreements are to include unspecified Adispute resolution" provisions.

 Exempts activities authorized under Title 14 and Navigation Law cleanup agreements from environmental permit requirements.

Under Title 14, explicitly authorizes investigation and interim remedial measure agreements with volunteers.

 Regarding postponement of IHWS listing, the Governor's proposed criteria is made more specific.

Eliminates mandate that counties annually submit reports to DEC on inactive sites within their jurisdiction.

 Establishes dispute resolution process under Title 14 using DEC administrative law judges.

"No action"  determinations available for sites that already meet standards.

 Creates office of brownfield development to coordinate state agency activities and to assist program participants.

 Adopts various provisions to promote "innovative technologies" and to authorize and regulate the use of "presumptive remedies."

Adopts the Part 375 definition of significant threat in statute.

 Reinstates the State Superfund Management Board through 2006.

Title 26 projects exempt from SEQRA and from permitting requirements.

 IHWS listings are postponed if Title 14 program participant acts in good faith to comply with Act.

All brownfield projects are subject to SEQRA  review.

 Any project within designated brownfield redevelopment areas will receive preference under all UDC economic development programs.

60 day notice to DEC required for property transfer or change in use.

 DEC shall develop a geographic information system to track all brownfield sites.

 DEC will create office of brownfield ombudsman to oversee program implementation.