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Compromise Bill--S. 5702 |
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STATE OF NEW YORK ________________________________________________________________________
5702 2003-2004 Regular Sessions IN SENATE June 19, 2003 ___________ Introduced by Sen. MARCELLINO -- (at request of the Governor) -- read twice and ordered printed, and when printed to be committed to the Committee on Rules
AN ACT to amend the environmental conservation law, in relation to enacting the "brownfield cleanup program" and in relation to environ- mental easements (Part A); to amend the environmental conservation law, in relation to enacting the groundwater protection and remedi- ation program (Part B); to amend the environmental conservation law, in relation to geographic information system (Part C); to amend the environmental conservation law and the real property tax law, in relation to environmental restoration projects (Part D); to amend the environmental conservation law, in relation to inactive hazardous waste disposal sites; and repealing certain provisions of such law relating thereto; to amend the public health law and the public authorities law, in relation to hazardous substances; and to repeal section 1389-e of the public health law relating thereto (Part E); to amend the general municipal law, in relation to state assistance for brownfield opportunity areas (Part F); to amend the navigation law, in relation to defenses which may be raised for certain discharges of petroleum and to repeal subdivision 4 of section 181 of such law relating thereto (Part G); to amend the tax law, in relation to brown- field redevelopment tax credits, remediated brownfield credit for real property taxes for qualified sites, environmental remediation insur- ance credits; and to amend the insurance law, in relation to quali- fication of environmental remediation insurance for tax credit (Part H); and to amend the environmental conservation law, the state finance law, chapter 55 of the laws of 2003, enacting the transportation, economic development and environmental conservation budget, the public authorities law and a chapter of the laws of 2003, amending the gener- al business law and other laws relating to implementing the state fiscal plan for the 2003-2004 state fiscal year, as enacted by legis- lative bill numbers S. 1406-B and A. 2106-B, in relation to financing of hazardous waste site remediation projects (Part I)
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[ LBD15237-02-3
The People of the State of New York, represented in Senate and Assem- bly, do enact as follows:
1 Section 1. This act enacts into law major components of legislation 2 relating to issues deemed necessary for the state. Each component is 3 wholly contained within a Part identified as Parts A through I. The 4 effective date for each particular provision contained within such Part 5 is set forth in the last section of such Part. Any provision in any 6 section contained within a Part, including the effective date of the 7 Part, which makes reference to a section "of this act", when used in 8 connection with that particular component, shall be deemed to mean and 9 refer to the corresponding section of the Part in which it is found. 10 Section three of this act sets forth the general effective date of this 11 act. 12 PART A 13 Section 1. Article 27 of the environmental conservation law is amended 14 by adding a new title 14 to read as follows: 15 TITLE 14 16 BROWNFIELD CLEANUP PROGRAM 17 Section 27-1401. Short title. 18 27-1403. Declaration of policy and findings of fact. 19 27-1405. Definitions. 20 27-1407. Request for participation. 21 27-1409. Brownfield site cleanup agreement. 22 27-1411. Work plan requirements. 23 27-1413. Alternatives analysis. 24 27-1415. Remedial program requirements. 25 27-1417. Citizen participation. 26 27-1419. Certification of completion 27 27-1421. Liability limitation. 28 27-1423. Payment of state costs. 29 27-1425. Change of use. 30 27-1427. Reserved. 31 27-1429. Permit waivers. 32 27-1431. Access to sites. 33 § 27-1401. Short title. 34 This act shall be known and may be cited as the "Brownfield Cleanup 35 Program". 36 § 27-1403. Declaration of policy and findings of fact. 37 The legislature hereby finds that there are thousands of abandoned and 38 likely contaminated properties that threaten the health and vitality of 39 the communities they burden, and that these sites, known as brownfields, 40 are also contributing to sprawl development and loss of open space. It 41 is therefore declared that, to advance the policy of the state of New 42 York to conserve, improve, and protect its natural resources and envi- 43 ronment and control water, land, and air pollution in order to enhance 44 the health, safety, and welfare of the people of the state and their 45 overall economic and social well being, it is appropriate to adopt this 46 act to encourage persons to voluntarily remediate brownfield sites for 47 reuse and redevelopment by establishing within the department a statuto- 48 ry program to encourage cleanup and redevelopment of brownfield sites. 49 All remedies shall be fully protective of public health and the environ- 50 ment including, but not limited to, groundwater according to its classi- 51 fication pursuant to section 17-0301 of this chapter. A remedial program
1 that achieves a permanent cleanup of a contaminated site, including the 2 restoration of groundwater to its classified use, is to be preferred 3 over a remedial program that does not do so. It is the intent of the 4 legislature that the provisions of this brownfield cleanup program shall 5 not be construed as limiting or otherwise affecting any authority 6 conferred upon the department by any other provision of law. 7 § 27-1405. Definitions. 8 1. "Applicant" shall mean a person whose request to participate in the 9 brownfield cleanup program under this title has been accepted by the 10 department: 11 (a) "Participant" shall mean an applicant who either: (i) was the 12 owner of the site at the time of the disposal of hazardous waste or 13 discharge of petroleum or (ii) is otherwise a person responsible accord- 14 ing to applicable principles of statutory or common law liability, 15 unless such person's liability arises solely as a result of such 16 person's ownership or operation of or involvement with the site subse- 17 quent to the disposal of hazardous waste or discharge of petroleum. 18 (b) "Volunteer" shall mean an applicant other than a participant, 19 including without limitation a person whose liability arises solely as a 20 result of such person's ownership or operation of or involvement with 21 the site subsequent to the disposal of hazardous waste or discharge of 22 petroleum, provided however, such person exercises appropriate care with 23 respect to hazardous waste found at the facility by taking reasonable 24 steps to: 25 (i) stop any continuing release; 26 (ii) prevent any threatened future release; and 27 (iii) prevent or limit human, environmental, or natural resource expo- 28 sure to any previously released hazardous substance. 29 2. "Brownfield" or "brownfield site" shall mean any real property, the 30 redevelopment or reuse of which may be complicated by the presence or 31 potential presence of a hazardous waste, petroleum, pollutant, or 32 contaminant. Such term shall not include real property: 33 (a) listed in the registry of inactive hazardous waste disposal sites 34 under section 27-1305 of this article at the time of application to this 35 program and given a classification as described in subparagraph one or 36 two of paragraph b of subdivision four of section 27-1305 provided, 37 however except until July first, two thousand five, real property listed 38 in the registry of inactive hazardous waste disposal sites under para- 39 graph b of subdivision two of section 27-1305 of this article prior to 40 the effective date of this article, where such real property is owned by 41 a volunteer; such property shall not be deemed ineligible to partic- 42 ipate; 43 (b) listed on the national priorities list established under authority 44 of 42 U.S.C. section 9605; 45 (c) subject to an enforcement action under title seven or nine of this 46 article, except a treatment, storage or disposal facility subject to a 47 permit, other than an interim status permit; 48 (d) subject to an order for cleanup pursuant to article twelve of the 49 navigation law or pursuant to title ten of article seventeen of this 50 chapter; or 51 (e) subject to any other on-going state or federal environment 52 enforcement action related to the hazardous waste or petroleum which is 53 the site subject to this agreement. 54 3. "Brownfield site contact list" shall mean a list of persons, 55 government agencies, groups, or organizations, including, but not limit- 56 ed to the chief executive officer and zoning board of each county, city,
1 town and village in which such site is located, the public water suppli- 2 er which serves the area in which such site is located, any site resi- 3 dents, any person who has requested to be placed on the site contact 4 list, and the administrator of any school or day care facility located 5 on the site for the purposes of posting and/or dissemination at the 6 facility. For the purposes of this section "water supplier" means any 7 public water system as such term is defined for the purposes of the 8 sanitary code of the state of New York as authorized by section two 9 hundred twenty-five of the public health law. Provided, however, that 10 where the site or adjacent real property contains multiple dwelling 11 units, the applicant shall work with the department to develop an alter- 12 native method for providing such notice in lieu of mailing to each indi- 13 vidual. 14 4. "Brownfield site cleanup agreement" shall mean an agreement 15 executed in accordance with section 27-1409 of this title by an appli- 16 cant and the department for the purpose of completing a brownfield site 17 remedial program. 18 5. "Brownfield site remedial program" or "remedial program" shall mean 19 all remedial activities or actions undertaken to eliminate, remove, 20 treat, abate, control, manage, or monitor hazardous waste or petroleum 21 at or emanating from a brownfield site, including, but not limited to, 22 the following: 23 (a) remedial investigation and remedy selection activities needed to 24 develop such a program; 25 (b) design activities; 26 (c) construction activities including without limitation grading, 27 contouring, trenching, grouting, capping, excavating, transporting, 28 incinerating, thermally treating, chemically treating, biologically 29 treating, or constructing leachate collection and treatment systems; 30 (d) interim remedial measures; 31 (e) post-construction operation, maintenance, and monitoring; 32 (f) restoration of the environment; 33 (g) involvement by local governments of jurisdiction and by the gener- 34 al public; or 35 (h) oversight by the department. 36 6. "Citizen participation plan" shall mean the description of citizen 37 participation activities prepared and carried out by municipalities, 38 community based organizations and/or applicants pursuant to section 39 27-1417 of this title. 40 7. "Concentrated solid or semi-solid hazardous substances" shall mean 41 solid or semi-solid hazardous substances present in surface or subsur- 42 face soil, surface water or groundwater in a concentrated form, such as 43 precipitated metallic salts, metal oxides, or chemical sludges. 44 8. "Contamination" or "contaminated" shall mean the presence of a 45 hazardous waste or petroleum in any environmental media, including soil, 46 surface water, groundwater, air, or indoor air. 47 9. "Dense non-aqueous phase liquid" or "DNAPL" shall mean a hazardous 48 substance that is a liquid that is denser than water and does not 49 dissolve or mix easily in water. 50 10. "Document repository" shall mean a repository of brownfield site 51 remedial program documents approved by the department or released for 52 public notice established in a publicly accessible building near the 53 location of such site. 54 11. "Engineering control" shall mean any physical barrier or method 55 employed to actively or passively contain, stabilize, or monitor hazard- 56 ous waste or petroleum, restrict the movement of hazardous waste or
1 petroleum to ensure the long-term effectiveness of a remedial program, 2 or eliminate potential exposure pathways to hazardous waste or petrole- 3 um. Engineering controls include, but are not limited to, pavement, 4 caps, covers, subsurface barriers, vapor barriers, slurry walls, build- 5 ing ventilation systems, fences, access controls, provision of alterna- 6 tive water supplies via connection to an existing public water supply, 7 adding treatment technologies to such water supplies, and installing 8 filtration devices on private water supplies. 9 12. "Feasible" shall mean suitable to site conditions, capable of 10 being successfully carried out with available technology, implementable 11 and cost effective. 12 13. "Financial assurance" shall include but not be limited to surety 13 bonds, trust funds, letters of credit, insurance or a multiple of finan- 14 cial mechanisms as determined to be adequate by the department. 15 14. "Free product" shall mean an immiscible non-aqueous phase liquid 16 other than a dense non-aqueous phase liquid present as a liquid, in 17 surface or sub-surface soil, surface water or groundwater in a poten- 18 tially mobile state. 19 15. "Grossly contaminated soil" shall mean soil which contains free 20 product or residual contamination which is identifiable visually, 21 through the perception of odor, by elevated contaminant vapor levels, by 22 field instrumentation, or is otherwise readily detectable. 23 16. "Groundwater" shall mean water below the land surface in a satu- 24 rated zone of soil or rock. This includes perched water separated from 25 the main body of groundwater by an unsaturated zone. 26 17. "Hazardous waste" or "contaminant" shall mean a hazardous waste as 27 defined in section 27-1301 of this article, and petroleum as defined in 28 this section. 29 18. "Institutional control" shall mean any non-physical means of 30 enforcing a restriction on the use of real property that limits human or 31 environmental exposure, restricts the use of groundwater, provides 32 notice to potential owners, operators, or members of the public, or 33 prevents actions that would interfere with the effectiveness of a reme- 34 dial program or with the effectiveness and/or integrity of operation, 35 maintenance, or monitoring activities at or pertaining to a brownfield 36 site. 37 19. "Interim remedial measures" shall mean activities to address both 38 emergency and non-emergency site conditions, which can be undertaken 39 without extensive investigation and evaluation, to prevent, mitigate, or 40 remedy environmental damage or the consequences of environmental damage 41 attributable to a site, including but not limited to, the following 42 activities: construction of diversion ditches, collection systems, free 43 product recovery systems, or leachate collection systems; construction 44 of fences or other barriers; installation of water filters; provision of 45 alternative water systems; the removal of free product; or plume 46 control. 47 20. "Light Non Aqueous Phase Liquid" or "LNAPL" shall mean a hazardous 48 substance that is a liquid that is lighter than water and does not 49 dissolve or mix easily in water. 50 21. "Municipality" shall mean a local public authority or public bene- 51 fit corporation, a county, city, town, village, school district, super- 52 visory district, district corporation, improvement district within a 53 county, city, town or village or Indian nation or tribe recognized by 54 the United States with a reservation wholly or partly within the bounda- 55 ries of the state, or any combination thereof.
1 22. "Newspaper notice" shall mean the placement of a prominently 2 located, paid newspaper advertisement in the community bulletin section 3 or similar local section of a newspaper of general circulation in the 4 vicinity of the brownfield site which is the subject of the notice. Such 5 notice shall be in English and in any other language spoken by signif- 6 icant numbers of people within the community. 7 23. "Non-aqueous phase liquid" shall mean a liquid that does not 8 dissolve or mix easily in water. 9 24. "Not-for-profit corporation" shall mean a not-for-profit corpo- 10 ration exempt from taxation under section 501(c) (3) of the internal 11 revenue code whose stated mission is not inconsistent with promoting 12 reuse of brownfield sites within a specified geographic area, and who 13 has exercised due care with respect to any hazardous waste or petroleum 14 at the brownfield site, taking into consideration the characteristics of 15 such hazardous waste, in light of all relevant facts and circumstances, 16 including but not limited to a not-for-profit corporation whose board of 17 directors shall include residents of the community or communities in 18 such specified geographic area and who has a demonstrated record of 19 community involvement and/or revitalization. A "not-for-profit corpo- 20 ration" shall not include any not-for-profit corporation whose acts or 21 omissions have caused or contributed to the release or threatened 22 release of a hazardous waste from or onto the brownfield site, or any 23 not-for-profit corporation that generated, transported, or disposed of, 24 or that arranged for, or caused the generation, transportation, or 25 disposal of hazardous waste from or onto the brownfield site. This defi- 26 nition shall not apply if any member, officer or director of the not- 27 for-profit corporation is or was employed or receiving compensation from 28 any person responsible for a site under title thirteen of this article, 29 any responsible party under this title or under applicable principles of 30 statutory or common law liability. 31 26. "Off-site contamination" shall mean any hazardous waste or petro- 32 leum which has emanated from a brownfield site beyond the real property 33 boundaries of such site, via movement through air, indoor air, soil, 34 surface water or groundwater. 35 27. "On-site contamination" shall mean any hazardous waste or contam- 36 ination located within the real property boundaries of a brownfield 37 site. 38 28. "Permanent cleanup" or "permanent remedy" shall mean a cleanup or 39 remedy that would allow a site to be used for any purpose without 40 restriction and without reliance on the long-term employment of institu- 41 tional or engineering controls. 42 29. "Petroleum" shall have the meaning set forth in section one 43 hundred seventy-two of the navigation law. 44 30. "Residual contamination" shall mean a hazardous waste remaining as 45 a solid, semi-solid or immiscible liquid in surface or subsurface soil, 46 geologic matrix pore spaces or fractures and held in place by capillary 47 forces or other physical or chemical forces that will not drain from the 48 formation. 49 § 27-1407. Request for participation. 50 1. A person who seeks to participate in this program shall submit a 51 request to the department on a form provided by the department. Such 52 form shall include information to be determined by the department suffi- 53 cient to allow the department to determine eligibility and the reason- 54 ably anticipated land use of the site pursuant to section 27-1415 of 55 this title.
1 2. If the applicant chooses, a work plan for a site investigation or a 2 final report describing the results of an investigation that meets the 3 requirements of this article. 4 3. The department shall notify the applicant requesting participation 5 in this program within ten days after receiving such request that such 6 request is either complete or incomplete. In the event the application 7 is determined to be incomplete the department shall specify in writing 8 the missing necessary information required pursuant to this article to 9 complete the application. 10 4. Upon the receipt of an application, the department shall notify the 11 administrator of the New York environmental protection and spill compen- 12 sation fund to determine whether such person has been identified as 13 responsible for cleanup and removal costs for the discharge of petroleum 14 at or emanating from the brownfield site for which the person is seeking 15 participation and that there is an outstanding claim against such person 16 pursuant to article twelve of the navigation law. The administrator 17 shall notify the department and the applicant within thirty days of such 18 notice of any outstanding claim by the fund against such person at the 19 brownfield site for which the person is seeking participation. 20 5. Upon the determination that the application is complete, the 21 department shall commence a thirty day comment period and place a 22 notification of receipt of request to participate in this program in the 23 environmental notice bulletin and provide newspaper notice. The depart- 24 ment shall also provide notice thereof in writing to the chief executive 25 officer and zoning board of each county, city, town and village in which 26 such brownfield site is located, residents of the site, the public water 27 supplier which services the area in which such brownfield site is 28 located, any person who has requested to be placed on the site contact 29 list and the administrator of any school or day care facility located on 30 the site for the purposes of posting and/or dissemination at the facili- 31 ty. For purposes of this section "water supplier" means any public 32 water system as such term is defined for the purposes of the sanitary 33 code of the state of New York as authorized by section two hundred twen- 34 ty-five of the public health law. Provided, however, that where the 35 site or adjacent real property contains multiple dwelling units, the 36 applicant shall work with the department to develop an alternative meth- 37 od for providing such notice in lieu of mailing to each individual. 38 6. The department shall use all best efforts to expeditiously notify 39 the applicant within forty-five days after receiving their request for 40 participation that such request is either accepted or rejected. 41 7. In the event a final investigation report describing the results 42 of an investigation that meets the requirements of this article was 43 submitted with the application, the applicant shall establish a document 44 repository, notify individuals on the site contact list, and provide for 45 a thirty day comment period. Within sixty days after receiving appli- 46 cant's application the commissioner shall inform the applicant in writ- 47 ing that the investigation is complete or that the investigation is 48 incomplete and specify the missing necessary information required pursu- 49 ant to this article to complete the investigation and/or the final 50 investigation report. 51 8. The department shall reject such request if: 52 (a) the department, based on the preliminary environmental assessment 53 and/or other information the department possesses, determines that the 54 request is for real property which does not meet the requirements of a 55 brownfield site as defined in this title; or
1 (b) there is an action or proceeding relating to the brownfield site 2 against the person who is requesting participation that is pending in 3 any civil or criminal court in any jurisdiction, or before any state or 4 federal administrative agency or body, wherein the state or federal 5 government seeks the investigation, removal, or remediation of hazardous 6 wastes or petroleum or penalties. 7 (c) The person requesting participation is subject to an outstanding 8 claim as provided in subdivision four of this section. 9 9. The department may reject such request for participation if the 10 department determines that the public interest would not be served by 11 granting such request. The department shall consider factors, including 12 but not limited to, the following: 13 (a) The applicant has been determined in an administrative, civil or 14 criminal proceeding to have violated any provision of this article, any 15 related order or determination of the commissioner, any regulation 16 promulgated pursuant to this article, or any similar statute, regu- 17 lation, order of the federal or other state government. 18 (b) The applicant has been denied entry into this program based upon 19 one or more of the provisions of this subdivision, or a similar 20 provision of federal or other state law. 21 (c) The applicant has been found in a civil proceeding to have commit- 22 ted a negligent or intentionally tortuous act, or has been convicted in 23 a criminal proceeding of a criminal act involving the handling, storing, 24 treating, disposing or transporting hazardous waste or petroleum. 25 (d) The applicant has been convicted of a criminal offense under the 26 laws of any state or of the United States which involves a violent felo- 27 ny offense, fraud, bribery, perjury, theft, or an offense against public 28 administration as that term is used in article one hundred ninety-five 29 of the penal law. 30 (e) The applicant has in any matter within the jurisdiction of the 31 department knowingly falsified or concealed a material fact or knowingly 32 submitted a false statement or made use of or made a false statement on 33 or in connection with any document or application submitted to the 34 department. 35 (f) The applicant is either: 36 (1) an individual who had a substantial interest in or acted as a high 37 managerial agent or director for any corporation, partnership, associ- 38 ation or organization which committed an act or failed to act, and such 39 act or failure to act could be the basis for the denial of a permit 40 pursuant to this section or regulations promulgated thereunder if such 41 corporation, partnership, association or organization applied for a 42 permit under this title; 43 (2) a corporation, partnership, association, organization, or any 44 principal thereof, or any person holding a substantial interest therein, 45 which committed an act or failed to act, and such act or failure to act 46 could be the basis for the denial of a permit pursuant to this section 47 or regulations promulgated thereunder if such corporation, partnership, 48 association or organization applied for a permit under this title; or 49 (3) a corporation, partnership, association or organization or any 50 high managerial agent or director thereof, or any person holding a 51 substantial interest therein, acting as high managerial agent or direc- 52 tor for or holding a substantial interest in another corporation, part- 53 nership, association or organization which committed an act or failed to 54 act, and such act or failure to act could be the basis for the denial of 55 a permit pursuant to this section or regulations promulgated thereunder
1 had such other corporation, partnership, association or organization 2 applied for a permit under this title. 3 For the purposes of this subdivision, "high managerial agent" has the 4 same meaning as is given that term in section 20.20 of the penal law, 5 and "substantial interest" shall be defined in regulations promulgated 6 by the commissioner. 7 § 27-1409. Brownfield site cleanup agreement. 8 The agreement shall include, but not be limited to, the following 9 provisions: 10 1. One requiring the applicant to pay for state costs; provided, 11 however, that with respect to a brownfield site after which the depart- 12 ment has determined constitutes a significant threat to the public 13 health or environment the department may include a provision requiring 14 the applicant to provide a technical assistance grant, as described in 15 subdivision three of section 27-1417 of this article and under the 16 conditions described therein, to an eligible party in accordance with 17 procedures established under such program, with the cost of such a grant 18 serving as an offset against such state costs; 19 2. One setting forth a process for resolving disputes arising from the 20 evaluation, analysis, and oversight of the implementation of the work 21 plan as described; 22 3. One requiring an indemnification provision which holds the state 23 harmless from any claim, suit, action, and cost of every name and 24 description arising out of or resulting from the fulfillment or 25 attempted fulfillment of the agreement, except for those claims, suits, 26 actions, and costs arising from the state's gross negligence or willful 27 or intentional misconduct; 28 4. One authorizing the department to terminate a brownfield site 29 cleanup agreement at any time during the implementation of such agree- 30 ment if the applicant implementing such agreement fails to substantially 31 comply with such agreement's terms and conditions; 32 5. One exempting the applicant from the requirement to obtain any 33 state or local permit or other authorization for any activity satisfying 34 the following criteria: 35 (a) the activity is conducted on the brownfield site or on different 36 premises that are under common control or are contiguous to or phys- 37 ically connected with the brownfield site and the activity manages 38 exclusively hazardous waste and/or petroleum from such brownfield site, 39 (b) the activity satisfies all substantive technical requirements 40 applicable to like activity conducted pursuant to a permit as determined 41 by the department, and 42 (c) the activity is conducted under such brownfield site cleanup 43 agreement; 44 6. One stating that the department shall not consider the applicant an 45 operator of such brownfield site based solely upon execution or imple- 46 mentation of such brownfield site cleanup agreement for purposes of 47 remediation liability; 48 7. A requirement that the applicant conduct investigation and/or reme- 49 diation activities pursuant to one or more work plans which are approved 50 by the department; 51 8. One requiring the preparation and implementation of a citizen 52 participation plan consistent with the requirements of this title as 53 soon as possible following execution of the agreement but no later than 54 prior to the preparation of a draft remedial investigation plan by the 55 applicant which shall include a description of citizen participation 56 activities already performed by the department;
1 9. One requiring a waiver by the applicant, effective upon the issu- 2 ance of a certificate of completion pursuant to section 27-1419 of this 3 title, of any right of such volunteer has or may have to make a claim 4 pursuant to article twelve of the navigation law with respect to the 5 brownfield site, and a release of the New York environmental protection 6 and spill compensation fund from any and all legal or equitable claims 7 or causes of action that such volunteer may have as a result of entering 8 into a brownfield site agreement or fulfilling a brownfield site remedi- 9 al program at such site; and 10 10. The inclusion of other conditions considered necessary by the 11 department concerning the effective and efficient implementation of this 12 title, and, where the applicant is a participant, the department shall 13 include provisions relating to recovery of state costs incurred before 14 the effective date of such agreement. 15 § 27-1411. Work plan requirements. 16 1. A remedial investigation work plan shall provide for the investi- 17 gation and characterization of the nature and extent of the contam- 18 ination within the boundaries of the brownfield site; provided, however, 19 a participant shall also be required to fully investigate and character- 20 ize the nature and extent of contamination emanating from such site. An 21 applicant must perform a qualitative exposure assessment pursuant to 22 subdivision two of section 27-1415 regarding contamination emanating 23 from such site. Such work plan shall require that the applicant cause a 24 final report to be prepared and submitted to the department that identi- 25 fies the investigation activities completed pursuant to such work plan. 26 Such final report, at a minimum, shall: 27 (a) Fully characterize the nature and extent of contamination at the 28 brownfield site; a participant shall also fully characterize the nature 29 and extent of contamination that has migrated from the brownfield site; 30 and an applicant shall describe the findings of the off-site exposure 31 assessments; 32 (b) State whether the completed investigation has demonstrated that 33 conditions at the brownfield site (1) require remediation in order to 34 meet the remedial requirements of this title or (2) meet the require- 35 ments of this title without necessity for remediation; 36 (c) For it to be determined that the requirements of this title have 37 been met without the necessity for remediation, an alternatives analysis 38 pursuant to section 27-1413 of this title must support such determi- 39 nation for all sites which do not meet the requirements in track 1 for 40 unrestricted use; and 41 (d) Within twenty days of the completion of the final report the 42 department shall determine if the site poses a significant threat based 43 on criteria developed pursuant to title thirteen of this article. 44 2. A remedial work plan shall provide for the development and imple- 45 mentation of a remedial program for such contamination within the bound- 46 aries of such brownfield site; provided, however, that a participant 47 shall also be required to provide in such work plan for the development 48 and implementation of a remedial program for contamination that has 49 migrated from such site. 50 3. Interim remedial measures. (a) Interim remedial measure work plan. 51 For interim remedial measures that are not emergency response actions an 52 interim remedial measure work plan shall be prepared by the applicant 53 containing such provisions as the department deems appropriate. 54 (b) Interim remedial measure report. For interim remedial measures 55 that are not emergency response actions, an interim remedial measure 56 report must be prepared and submitted to the department which shall
1 include a description of all interim remedial measures complete pursuant 2 to the interim remedial measure work plan. 3 4. The commissioner shall use all best efforts to expeditiously 4 approve, modify, or reject a proposed work plan within forty-five days 5 from its receipt or within fifteen days of the close of the comment 6 period, whichever is later. 7 (a) If the commissioner rejects a proposed work plan, the commissioner 8 shall notify the applicant and specify the reasons for rejecting same. 9 (b) If the commissioner approves or modifies such proposed work plan, 10 the commissioner shall notify the applicant, in writing, that the 11 proposed work plan has been approved or modified. If the commissioner 12 requires a modification, the applicant may agree to modify such proposed 13 work plan or withdraw it from consideration. 14 5. Nothing in this section shall prohibit or limit the department from 15 terminating a brownfield site cleanup agreement at any time during its 16 implementation if the applicant subject to such brownfield site cleanup 17 agreement fails to comply substantially with such agreement's terms and 18 conditions. 19 6. Within six months of the determination that a site poses a signif- 20 icant threat, in the event that the applicant is a volunteer, the 21 department shall bring an enforcement action against any parties known 22 or suspected to be responsible for contamination (other than such volun- 23 teer) at or emanating from the site according to applicable principles 24 of statutory or common law liability. If such action cannot be brought, 25 or does not result in the initiation of a remedial program by such party 26 or parties at such site, the department shall use best efforts to begin 27 a remedial program to perform the remediation of off-site contamination 28 at such site within one year of the completion of such enforcement 29 action or the completion of the volunteer's remedial program, whichever 30 is later. The state shall use moneys from the hazardous waste remedial 31 fund established pursuant to section ninety-seven-b of the state finance 32 law to undertake the investigation and/or remediation of such contam- 33 ination. The state's costs incurred relative to such off-site contam- 34 ination shall be recoverable from the person or persons responsible. 35 § 27-1413. Alternatives analysis. 36 1. For sites proposed to be remediated under track I pursuant to 37 section 27-1415, the applicant shall develop and evaluate at least one 38 remedial alternative. 39 2. For all other sites, the applicant shall develop and evaluate at 40 least two remedial alternatives, one of which would achieve a track I 41 cleanup. The department shall have the discretion to require the evalu- 42 ation of additional alternatives at a site that has been determined to 43 pose a significant threat. The applicant shall submit the alternatives 44 analysis to the department for review, approval, modification or 45 rejection. 46 3. For sites that the department has determined constitute a signif- 47 icant threat, the department shall select the remedy from a department- 48 approved alternatives analysis. 49 4. For sites that the department has determined do not constitute a 50 significant threat, the applicant may select the remedy from a depart- 51 ment-approved alternatives analysis, which analysis shall contain at 52 least two remedial alternatives as set forth in subdivision two of this 53 section. Provided, however, that the department may require the appli- 54 cant, as a condition of continuing under this program, to develop and 55 evaluate a Track II cleanup pursuant to section 27-1415 for such non- 56 significant threat site upon due consideration of the following factors:
1 (a) the degree to which the remedy selection criteria would be better 2 satisfied by a Track II cleanup; (b) the degree of impact a Track II 3 cleanup would have on the applicant's ability to successfully cleanup 4 and/or redevelop the property; (c) the benefit to the environment to be 5 realized by the expeditious remediation of the property; and (d) the 6 economic benefit to the state to be realized by the expeditious remedi- 7 ation of the property. In those instances where the department has 8 required the applicant to develop and evaluate a Track II cleanup, the 9 department shall have the discretion to, as a condition of continuing 10 under this program, require the applicant to implement such remedy. 11 § 27-1415. Remedial program requirements. 12 1. Remedies. All remedies shall be protective of public health and 13 the environment including but not limited to groundwater according to 14 its classification pursuant to section 17-0301 of this chapter; drinking 15 water, surface water and air (including indoor air); sensitive popu- 16 lations, including children; and ecological resources, including fish 17 and wildlife. In all cases, the target risk of residual contamination at 18 a site shall not exceed an excess cancer risk of one in one million for 19 carcinogenic end points and a hazard index of one for non-cancer end 20 points. 21 2. Investigation. (a) Remedial investigation. A remedial investigation 22 shall fully characterize the nature and extent of contamination at 23 and/or emanating from a brownfield site, including contamination emanat- 24 ing from such site. Such investigation shall emphasize data collection 25 and sampling and monitoring, as necessary, and includes but is not 26 limited to: characterization of site geologic and hydrogeologic condi- 27 tions, including groundwater flow, contaminant movement, and the 28 response of the groundwater system to extraction; and assessment of the 29 existing and potential impact of groundwater contamination on private or 30 community water supply wells, surface water quality, air quality, and 31 indoor air quality. 32 (b) Qualitative exposure assessment. A qualitative exposure assessment 33 shall qualitatively determine the route, intensity, frequency, and dura- 34 tion of actual or potential exposures of humans, fish and wildlife to 35 contaminants. Such assessment must analyze the nature and size of the 36 population currently exposed or which may reasonably be expected to be 37 exposed to the contaminants that are present at or migrating from a 38 site, and shall include a determination of the reasonably anticipated 39 future land use of the site and affected off-site areas and the reason- 40 ably anticipated future groundwater use. A qualitative exposure assess- 41 ment consists of characterizing the exposure setting, identifying 42 current and reasonably foreseeable exposure pathways, and evaluating 43 contaminant fate and transport. Some off-site field investigation to 44 identify and sample any potential areas of contamination may be required 45 to support the exposure assessment. 46 3. Selection. The remedial program for a site shall be selected upon 47 due consideration of the following factors: 48 (a) Conformance to standards and criteria that are generally applica- 49 ble, consistently applied, and officially promulgated, that are either 50 directly applicable, or that are not directly applicable but are rele- 51 vant and appropriate, unless good cause exists why conformity should be 52 dispensed with, and with consideration being given to guidance deter- 53 mined, after the exercise of engineering judgment, to be applicable. 54 Such good cause exists if any of the following is present: 55 (i) the proposed action is only part of a complete program that will 56 conform to such standard or criterion upon completion; or
1 (ii) conformity to such standard or criterion will result in greater 2 risk to the public health or to the environment than alternatives; or 3 (iii) conformity to such standard or criterion is technically imprac- 4 ticable from an engineering perspective; or 5 (iv) the program will attain a level of performance that is equivalent 6 to that required by the standard or criterion through the use of another 7 method or approach. 8 (b) Overall protectiveness of the public health and the environment. 9 (c) Short-term effectiveness. 10 (d) Long-term effectiveness and permanence. A remedial program that 11 achieves a complete and permanent cleanup of the site is to be preferred 12 over a remedial program that does not do so. 13 (e) Reduction in toxicity, mobility and/or volume of contamination 14 with treatment. A remedial program that permanently and significantly 15 reduces the toxicity, mobility and/or volume of contamination is to be 16 preferred over a remedial program that does not do so. The following is 17 the hierarchy of the remedial technologies ranked from the most prefera- 18 ble to the least preferable: destruction, on-site or off-site; 19 separation/treatment, on-site or off-site; solidification/chemical fixa- 20 tion, on-site or off-site; control and isolation, on-site or off-site. 21 (f) Implementability. 22 (g) Cost effectiveness. 23 (h) Community acceptance. 24 (i) Land use. The current, intended, and reasonably anticipated future 25 land uses of the site and its surroundings shall be considered in the 26 selection of the remedy for soil remediation, provided the department 27 determines that there is reasonable certainty associated with such use. 28 The reasonably anticipated future use of the site and its surroundings 29 shall be documented by the applicant and determined by the department, 30 taking into consideration factors including, but not limited to those 31 listed below. If the use proposed for the site does not conform with 32 applicable zoning laws or maps or the reasonably anticipated future use 33 of the site determined by the department pursuant to this section, the 34 department shall disapprove such use. 35 (j) Current use and historical and/or recent development patterns. 36 (k) Applicable zoning laws and maps. 37 (l) Brownfield opportunity areas as designated pursuant to section 38 nine hundred seventy-r of the general municipal law. 39 (m) Applicable comprehensive community master plans, local waterfront 40 revitalization plans as provided for in article forty-two of the execu- 41 tive law, or any other applicable land use plan formally adopted by a 42 municipality. 43 (n) Proximity to real property currently used for residential use, and 44 to urban, commercial, industrial, agricultural, and recreational areas. 45 (o) Any written and oral comments submitted by members of the public 46 on the applicants proposed use as part of citizen participation activ- 47 ities performed by the applicant pursuant to this title. 48 (p) Environmental justice concerns, which for purposes of this title, 49 include the extent to which the proposed use may reasonably be expected 50 to cause or increase a disproportionate burden on the community in which 51 the site is located, including low-income minority communities, or to 52 result in a disproportionate concentration of commercial or industrial 53 uses in what has historically been a mixed use or residential community. 54 (q) Federal or state land use designations. 55 (r) Population growth patterns and projections. 56 (s) Accessibility to existing infrastructure.
1 (t) Proximity of the site to important cultural resources, including 2 federal or state historic or heritage sites or Native American religious 3 sites. 4 (u) Natural resources, including proximity of the site to important 5 federal, state or local natural resources, including waterways, wildlife 6 refuges, wetlands, or critical habitats of endangered or threatened 7 species. 8 (v) Potential vulnerability of groundwater to contamination that might 9 migrate from the site, including proximity to wellhead protection and 10 groundwater recharge areas and other areas identified by the department 11 and the state's comprehensive groundwater remediation and protection 12 program established pursuant to title thirty-one of article fifteen of 13 this chapter. 14 (w) Proximity to floodplains. 15 (x) Geography and geology. 16 (y) Current institutional controls applicable to the site. 17 4. Tracks. The commissioner, in consultation with the commissioner of 18 health, shall propose within twelve months and thereafter timely promul- 19 gate regulations which create a multi-track approach for the remediation 20 of contamination. Such regulations shall provide that groundwater use 21 in Tracks 1, 3 or 4 can be either restricted or unrestricted. The 22 tracks shall be as follows: 23 Track 1: The remedial program shall achieve a cleanup level that will 24 allow the site to be used for any purpose without restriction and with- 25 out reliance on the long-term employment of institutional or engineering 26 controls, and shall achieve contaminant-specific remedial action objec- 27 tives for soil which conforms with those contained in the generic table 28 of contaminant-specific remedial action objectives for unrestricted use 29 developed pursuant to subdivision six of this section. Provided, howev- 30 er, that volunteers whose proposed remedial program for the remediation 31 of groundwater may require the long-term employment of institutional or 32 engineering controls after the bulk reduction of groundwater contam- 33 ination to asymptotic levels has been achieved but whose program would 34 otherwise conform with the requirements necessary to qualify for Track 35 1, shall qualify for Track 1. 36 Track 2: The remedial program may include restrictions on the use of 37 the site or reliance on the long-term employment of engineering and/or 38 institutional controls, but shall achieve contaminant-specific remedial 39 action objectives for soil which conform with those contained in one of 40 the generic tables developed pursuant to subdivision six of this section 41 without the use of institutional or engineering controls to reach such 42 objectives. 43 Track 3: The remedial program shall achieve contaminant-specific reme- 44 dial action objectives for soil which conform with the criteria used to 45 develop the generic tables for such objectives developed pursuant to 46 subdivision six of this section but may use site specific data to deter- 47 mine such objectives. 48 Track 4: The remedial program shall achieve a cleanup level that will 49 be protective for the site's current, intended or reasonably anticipated 50 residential, commercial, or industrial use with restrictions and with 51 reliance on the long-term employment of institutional or engineering 52 controls to achieve such level. The regulations shall include a 53 provision requiring that a cleanup level which poses a risk in excee- 54 dance of an excess cancer risk of one in one million for carcinogenic 55 end points and a hazard index of one for non-cancer end points for a 56 specific contaminant at a specific site may be approved by the depart-
1 ment without requiring the use of institutional or engineering controls 2 to eliminate exposure only upon a site specific finding by the commis- 3 sioner, in consultation with the commissioner of health, that such level 4 shall be protective of public health and environment. Such finding shall 5 be included in the draft remedial work plan for the site and fully 6 described in the notice and fact sheet provided in such work plan. 7 5. Source removal and control measures. (a) The following is the hier- 8 archy of source removal and control measures ranked from most preferable 9 to least preferable. For all applicants, the remedial program selected 10 pursuant to this title shall address sources in the following manner: 11 (i) Removal and/or treatment. All free product, concentrated solid or 12 semi-solid hazardous substances, dense non-aqueous phase liquid, light 13 non-aqueous phase liquid and/or grossly contaminated soil shall be 14 removed and/or treated; provided however if the removal and/or treatment 15 of all such contamination is not feasible, such contamination shall be 16 removed or treated to the greatest extent feasible. 17 (ii) Containment. Any source remaining following removal and/or treat- 18 ment pursuant to this paragraph shall be contained; provided however if 19 full containment is not feasible, such source shall be contained to the 20 greatest extent feasible. 21 (iii) Elimination of exposure. Exposure to any source remaining 22 following removal, treatment and/or containment pursuant to this para- 23 graph shall be eliminated through additional measures, including but not 24 limited to, as applicable, the timely and sustained provision of alter- 25 native water supplies and the elimination of volatilization into build- 26 ings; provided however if such elimination is not feasible such exposure 27 shall be eliminated to the greatest extent feasible. 28 (iv) Treatment of source at the point of exposure. Treatment of source 29 at the point of exposure, including but not limited to, as applicable, 30 wellhead treatment or the management of volatile contamination within 31 buildings, shall be considered as a measure of last resort. 32 (b) Plume stabilization shall be evaluated for all remedies and the 33 further migration of contamination from the site shall be prevented to 34 the extent feasible, including any actions that would be necessary to 35 maintain and monitor such stabilization. Provided however, that at a 36 site being remediated by a participant, the further migration of plumes 37 shall be prevented to the extent feasible. 38 6. Soil cleanup objectives. (a) The regulations shall include three 39 generic tables of contaminant-specific remedial action objectives for 40 soil based on a site's current, intended or reasonably anticipated 41 future use, including: (i) unrestricted, (ii) commercial and (iii) 42 industrial. 43 (b) Such objectives shall be protective of public health and the envi- 44 ronment pursuant to subdivision one of this section, and the level of 45 risk associated with remedial action objectives for individual contam- 46 inants listed in the table or developed by the applicant pursuant to 47 Track three shall not exceed an excess cancer risk of one in one million 48 for carcinogenic end points and a hazard index of one for non-cancer end 49 points; provided, however, that if the background soil concentration for 50 a contaminant in rural soils in New York state exceeds such risk level 51 the contaminant specific action objective for such contaminant may be 52 established equal to such background concentration. In developing such 53 tables, the department shall consider: 54 (i) standards, criteria and guidance which are found by the department 55 to be applicable or relevant and appropriate pursuant to paragraph (a) 56 of subdivision three of this section;
1 (ii) the behaviors of children; 2 (iii) the protection of adjacent residential uses; 3 (iv) contaminants which act through similar toxicological mechanisms 4 or have the potential for additive and/or synergistic effects, and expo- 5 sure to the same contaminant or group of contaminants from other routes; 6 and 7 (v) the feasibility of achieving more stringent remedial action objec- 8 tives, based on experience under the existing state remedial programs, 9 particularly where toxicological, exposure, or other pertinent data are 10 inadequate or nonexistent for a specific contaminant. 11 (c) The department shall update such tables of contaminant-specific 12 remedial action objectives every five years. The initial tables shall be 13 published in draft form for public comment with a public comment period 14 of one hundred twenty days, and be the subject of at least three public 15 hearings throughout the state. Subsequent tables shall be the subject of 16 at least one public hearing and a public comment period of at least 17 ninety days. 18 (d) For Track IV, exposed surface soils shall be remediated to the 19 generic contaminant-specific remedial action objectives for soil devel- 20 oped for unrestricted, commercial, or industrial use pursuant to this 21 subdivision which conforms with the site's current intended, or reason- 22 ably anticipated future use. The depth of such remediation shall be two 23 feet for sites used for residential use and one foot for sites used for 24 commercial or industrial use. 25 7. Institutional and engineering controls. 26 (a) The department may approve a proposed remedial work plan that 27 includes institutional controls and/or engineering controls as compo- 28 nents of a proposed remedial program provided the remedial work plan 29 includes: 30 (i) a complete description of any proposed use restrictions and/or 31 institutional controls and the mechanisms that will be used to imple- 32 ment, maintain, monitor, and enforce such restrictions and controls, 33 both by the applicant and by any state and local government; 34 (ii) a complete description of any proposed engineering controls and 35 any operation, maintenance, and monitoring requirements, including the 36 mechanisms that will be used to continually implement, maintain, moni- 37 tor, and enforce such controls and requirements, both by the applicant 38 and by any state and local government; 39 (iii) an evaluation of the reliability and viability of the long-term 40 implementation, maintenance, monitoring, and enforcement of any proposed 41 institutional or engineering controls and an analysis of the long-term 42 costs of implementing, maintaining, monitoring and enforcing such 43 controls, including costs that may be borne by state or local govern- 44 ments; 45 (iv) sufficient analysis to support a conclusion that effective imple- 46 mentation, maintenance, monitoring and enforcement of institutional 47 and/or engineering controls can be reasonably expected; 48 (v) where required by the department, financial assurance to ensure 49 the long term implementation, maintenance, monitoring, and enforcement 50 of any such controls; and 51 (vi) any engineering control must be used in conjunction with institu- 52 tional controls to ensure the continued integrity of such engineering 53 control. 54 (b) The owner of a brownfield site at which institutional or engineer- 55 ing controls are employed pursuant to this title shall, unless otherwise 56 provided in writing by the department, annually submit to the department
1 a written statement by an individual licensed or otherwise authorized in 2 accordance with article one hundred forty-five of the education law to 3 practice the profession of engineering, or by such other expert as the 4 department may find acceptable certifying under penalty of perjury that 5 the institutional controls and/or engineering controls employed at such 6 site are unchanged from the previous certification and that nothing has 7 occurred that would impair the ability of such control to protect the 8 public health and environment, or constitute a violation or failure to 9 comply with any operation and maintenance plan for such controls and 10 giving access to such real property to evaluate continued maintenance of 11 such controls. 12 (c) At non-significant threat sites where contaminants in groundwater 13 at the site boundary contravene drinking water standards, such certif- 14 ication shall also certify that no new information has come to the 15 owner's attention, including groundwater monitoring data from wells 16 located at the site boundary, if any, to indicate that the assumptions 17 made in the qualitative exposure assessment of offsite contamination are 18 no longer valid. Every five years the owner at such sites shall certify 19 that the assumptions made in the qualitative exposure assessment remain 20 valid. The requirement to provide such certifications may be terminated 21 by a written determination by the commissioner in consultation with the 22 commissioner of health, after notice to the site contact list and a 23 public comment period of thirty days. 24 (d) The commissioner shall create, update, and maintain a database 25 system for public information purposes and to monitor and track all 26 brownfield sites subject to this title. Data incorporated into such 27 system for each site for which information has been collected pursuant 28 to this title shall include, but shall not be limited to, a site summa- 29 ry, name of site owner, location, status of site remedial activity, and, 30 if one has been created pursuant to title thirty-six of article seven- 31 ty-one of this chapter, a copy of the environmental easement, and a 32 contact number to obtain additional information. Sites shall be added to 33 such system upon the execution of a brownfield site cleanup agreement 34 pursuant to section 27-1409 of this title. If and when an environmental 35 easement is modified or extinguished, the copy of the environmental 36 easement contained in the database shall be updated accordingly. Such 37 database shall be in such a format that it can be readily searched by 38 affected local governments and the public for purposes including but not 39 limited to determining whether an environmental easement has been 40 recorded for a site pursuant to title thirty-six of article seventy-one 41 of this chapter. The database shall be available electronically. Infor- 42 mation from this database shall be incorporated into the geographic 43 information system created and maintained by the department pursuant to 44 section 3-0315 of this chapter. 45 8. Presumptive remedial strategies. Nothing herein contained shall be 46 deemed to require site-specific remedy selection, and the commissioner 47 shall have the power to develop a list of presumptive remedial strate- 48 gies that applicants may use to meet the requirements associated with 49 Tracks 1 through 4 of this section. Such remedies may be developed for 50 specific site types and/or contaminants based upon historical patterns 51 of remedy selection and the department's scientific and engineering 52 evaluation of performance data on technology implementation. 53 9. Use of technologies. The commissioner, in consultation with the 54 commissioner of health, shall consider and encourage the use of innova- 55 tive technologies which will meet the remedial objectives of this title. 56 Consistent with the provisions of section twelve hundred eighty-five-f
1 of the public authorities law, the commissioner, in consultation with 2 the president of the environmental facilities corporation, shall encour- 3 age the development of such technologies. 4 § 27-1417. Citizen participation. 5 1. Citizen participation handbook. The commissioner shall prepare a 6 citizen participation handbook for the purpose of providing guidance to 7 applicants in the design and implementation of meaningful citizen 8 participation plans consistent with the requirements of this section for 9 the remediation of brownfield sites as provided in this title. Such 10 handbook shall encourage citizen involvement by outlining opportunities 11 and recommended methods for effective citizen participation. The commis- 12 sioner shall make such handbook available to all applicants and other 13 interested members of the public upon request and shall make it avail- 14 able on the department's website. 15 2. Citizen participation plans. (a) The design of any citizen partic- 16 ipation plan, including the level of citizen involvement and the tools 17 utilized, shall take into account the scope and scale of the proposed 18 remedial program, local interest and history, and other relevant 19 factors. While retaining flexibility, citizen participation plans shall 20 embody the following principles of meaningful citizen participation: 21 (1) opportunities for citizen involvement should be provided as early 22 as possible in the decision making process prior to the selection of a 23 preferred course of action by the department and/or the applicant. 24 (2) activities proposed in such plan should be as reflective of the 25 diversity of interests and perspective found within the community as 26 possible, allowing the public the opportunity to have their views heard 27 and considered, which may include opportunities for two-way dialogue. 28 (3) full, timely, and accessible disclosure and sharing of information 29 by the department shall be provided, including the provision of techni- 30 cal data and the assumptions upon which the analyses are based. 31 (b) All citizen participation plans shall include the following mini- 32 mum elements: 33 (1) identification of the interested public and preparation of a 34 brownfield site contact list; 35 (2) identification of major issues of public concern related to the 36 brownfield site; 37 (3) a description and schedule of public participation activities 38 required pursuant to this section; and 39 (4) a description and schedule of any additional public participation 40 activities needed to address public concerns. 41 3. Citizen participation requirements. (a) In addition to the formal 42 milestones listed below, the public may provide comments at any time 43 during the remedial program. 44 (b) The applicant, in cooperation with the department, shall provide a 45 newspaper notice of their request to participate in the program. The 46 applicant, in cooperation with the department, shall also provide notice 47 thereof to the brownfield site contact list. Such notice shall provide 48 for a thirty day public comment period following publication of the 49 notice required under this section. 50 (c) Before the department finalizes the remedial investigation work- 51 plan, the applicant, in cooperation with the department, must notify 52 individuals on the brownfield site contact list. Such notice shall 53 include a fact sheet describing such plan and provide for a thirty day 54 public comment period. 55 (d) Before the department approves a proposed remedial investigation 56 report, the applicant, in cooperation with the department, shall notify
1 individuals on the brownfield site contact list. Such notice shall 2 include a fact sheet describing such report. 3 (e) Before the department finalizes a proposed remedial work plan or 4 makes a determination that site conditions meet the requirements of this 5 title without the necessity for remediation pursuant to section 27-1411 6 of this title, the department must notify individuals on the brownfield 7 site contact list. Such notice shall include a fact sheet describing 8 such plan and provide for a forty-five day public comment period. The 9 commissioner shall hold a public meeting if requested by the affected 10 community and the commissioner has found that the site constitutes a 11 significant threat to the public health or the environment. Further, the 12 affected community may request a public meeting at sites that do not 13 constitute a significant threat. (1) To the extent that the department 14 has determined that site conditions do not pose a significant threat and 15 the site is being addressed by a volunteer, the notice shall state that 16 the department has determined that no remediation is required for the 17 off-site areas and that the department's determination of a significant 18 threat is subject to this thirty day comment period. (2) If the remedi- 19 al work plan includes a Track II, Track III or Track IV remedy at a 20 non-significant threat site, such comment period shall apply both to the 21 approval of the alternatives analysis by the department and the proposed 22 remedy selected by the applicant. 23 (f) Before the applicant commences construction at the brownfield 24 site, the department shall provide notice to the individuals on the 25 brownfield site contact list. 26 (g) Before the department approves a proposed final engineering 27 report, the department must notify individuals on such contact list. 28 Such notice shall include a fact sheet describing such report, including 29 any proposed institutional or engineering controls. 30 (h) Within ten days of the issuance of a certificate of completion at 31 a site which will utilize institutional or engineering controls, the 32 applicant shall provide notice to the brownfield site contact list. Such 33 notice shall include a fact sheet describing such controls. 34 4. Technical assistance grants. (a) Within the limits of appropri- 35 ations made available pursuant to section 27-1419 of this title, the 36 commissioner is authorized to provide grants to any not-for-profit 37 corporation exempt from taxation under 501(c)(3) of the internal revenue 38 code at any site determined to pose a significant threat by the depart- 39 ment and which may be affected by a brownfield site remedial program. 40 To qualify to receive such assistance, a community group must demon- 41 strate that its membership represents the interests of the community 42 affected by such site. Furthermore, the commissioner is authorized to 43 direct any applicant who is a responsible party, as defined in section 44 27-1313 of this article, to provide such grants. Such grants shall be 45 known as technical assistance grants and may be used to obtain technical 46 assistance in interpreting information with regard to the nature of the 47 hazard posed by hazardous substances located at or emanating from a 48 brownfield site or sites and the development and implementation of a 49 brownfield site remedial program or programs. Such grants may also be 50 used to hire health and safety experts to advise affected residents on 51 any health assessments and for the education of interested affected 52 community members to enable them to more effectively participate in the 53 remedy selection process. Grants awarded under this section may not be 54 used for the purposes of collecting field sampling data, political 55 activity or lobbying legislative bodies.
1 (b) The amount of any grant awarded under this section may not exceed 2 fifty thousand dollars at any one site. 3 (c) No matching contribution from the grant recipient shall be 4 required for a technical assistance grant. Following a grant award, a 5 portion of the grant shall be made available to the grant recipient, in 6 advance of the expenditures to be covered by the grant, in five thousand 7 dollar installments. 8 § 27-1419. Certification of completion. 9 1. Upon certification by the applicant that the remediation require- 10 ments of this title have been achieved for the brownfield site, such 11 applicant shall submit to the department a final engineering report 12 prepared by an individual licensed or otherwise authorized in accordance 13 with article one hundred forty-five of the education law to practice the 14 profession of engineering. 15 2. A final engineering report shall include, at a minimum: 16 (a) a description of the remediation activities completed pursuant to 17 the remedial work plan for the brownfield site; 18 (b) a certification that the data submitted to the department demon- 19 strates that the remediation requirements set forth in the remedial work 20 plan and any other relevant provisions of this title have been or will 21 be achieved in accordance with the timeframes, if any, established in 22 such work plan; 23 (c) the boundaries of the real property that is subject to a brown- 24 field site cleanup agreement; 25 (d) a complete description of any institutional controls employed at 26 the site, including the mechanisms that will be used to continually 27 implement, maintain, monitor, and enforce such controls both by the 28 applicant, their successors and assigns, and by state or local govern- 29 ment; 30 (e) a certification that any use restrictions, institutional controls, 31 engineering controls and/or any operation and maintenance requirements 32 applicable to the site are contained in an environmental easement 33 created and recorded pursuant to title thirty-six of article seventy-one 34 of this chapter and that any affected local governments, as defined in 35 title thirty-six of article seventy-one of this chapter have been noti- 36 fied that such easement has been recorded; 37 (f) a certification that an operation and maintenance plan has been 38 submitted by the applicant for the continual and proper operation, main- 39 tenance, and monitoring of any engineering controls employed at the site 40 including the proper maintenance of any remaining monitoring wells, and 41 that such plan has been approved by the department; and 42 (g) a certification that any financial assurance mechanisms required 43 by the department pursuant to this title have been executed. 44 3. Upon receipt of the final engineering report, the department shall 45 review such report and the data submitted pursuant to the brownfield 46 site cleanup agreement as well as any other relevant information regard- 47 ing the brownfield site. Upon satisfaction of the commissioner that the 48 remediation requirements set forth in this title have been or will be 49 achieved in accordance with the timeframes, if any, established in the 50 plan, the commissioner shall issue a written certificate of completion, 51 such certificate shall include such information as determined by the 52 department of taxation and finance, including but not limited to the 53 brownfield site boundaries included in the final engineering report, and 54 the date of the brownfield site agreement pursuant to section 27-1409 of 55 this title.
1 4. The commissioner shall not issue a certificate of completion to any 2 applicant who has been identified by the administrator of the New York 3 environmental protection and spill compensation fund pursuant to subdi- 4 vision four of section 27-1407 of this title as a person responsible for 5 the cleanup and removal costs for the discharge of petroleum at or 6 emanating from the brownfield site for which the applicant is seeking a 7 certificate of completion and the applicant has not resolved any 8 outstanding claim at such site pursuant to article twelve of the naviga- 9 tion law. 10 5. A certificate of completion issued pursuant to this section may be 11 modified or revoked by the commissioner upon a finding that: 12 (a) The applicant has failed to comply with the terms and conditions 13 of the brownfield site cleanup agreement; 14 (b) The applicant made a misrepresentation of a material fact tending 15 to demonstrate that it was qualified as a volunteer or that the cleanup 16 levels identified in the brownfield site cleanup agreement were reached; 17 or 18 (c) There is good cause for such modification or revocation. 19 6. Upon the commissioner's determination pursuant to subdivision three 20 or five of this section, the commissioner shall provide the applicant 21 with notice of such determination and notice of the right to appeal such 22 determination. The commissioner's determination shall be final unless a 23 hearing is requested by certified mail sent to the commissioner within 24 thirty days after receiving notice of such determination. After such 25 hearing, the commissioner shall give notice of final determination to 26 such applicant. The commissioner may promulgate regulations to effectu- 27 ate the purposes of this section. 28 7. However, nothing herein shall be construed as abrogating any powers 29 or duties of the administrator of the New York environmental protection 30 and spill compensation fund as provided in article twelve of the naviga- 31 tion law. 32 § 27-1421. Liability limitation. 33 1. Notwithstanding any other provision of law and except as provided 34 in subdivision two of this section, after the department has issued a 35 certificate of completion for a brownfield site, the applicant shall not 36 be liable to the state upon any statutory or common law cause of action, 37 arising out of the presence of any hazardous waste in, on or emanating 38 from the brownfield site that was the subject of such certificate at any 39 time before the effective date of a brownfield site cleanup agreement 40 entered into pursuant to this title, except that a participant shall not 41 receive a release for natural resource damages that may be available 42 under federal law. 43 2. (a) The state nonetheless shall reserve all of its rights concern- 44 ing, and such liability limitation shall not extend to, any further 45 investigation and/or remediation the department deems necessary due to: 46 (i) environmental contamination at, on, under, or migrating from the 47 brownfield site if, in light of such conditions, the site is no longer 48 protective of public health or the environment; or 49 (ii) non-compliance with the terms of the agreement, the remedial work 50 plan and the certificate of completion required by this title; or 51 (iii) fraud committed by the applicant in its application for or 52 participation in this program; or 53 (iv) a finding by the department that a change in an environmental 54 standard, factor, or criteria upon which the remedial work plan or no 55 further action determination was based, which renders the brownfield
1 site remedial program implemented at the site no longer protective of 2 public health or the environment; or 3 (v) a change in the brownfield site's use subsequent to the depart- 4 ment's issuance of the certificate of completion or no action determi- 5 nation, unless additional remediation is undertaken which shall meet the 6 standard for protection of the public health and environment that 7 applies under this title; or 8 (vi) following the certificate of completion the failure of an appli- 9 cant to make substantial progress toward completion of its proposed 10 development of the site within three years, or the applicant engages in 11 unreasonable delay and fails to complete its proposed development of the 12 site within a reasonable time, considering the size, scope and nature of 13 the development. 14 (b) In the case of a volunteer, subparagraph (v) of paragraph (a) of 15 this subdivision shall not apply if track 1-unrestricted use as provided 16 in section 27-1415 of this title is achieved. 17 3. The covenant not to sue issued pursuant to this section shall 18 extend to the applicant's successors or assigns through acquisition of 19 title to the brownfield site to which the covenant applies and to a 20 person who develops or otherwise occupies the brownfield site; provided 21 that such persons act with due care and in good faith to adhere to the 22 requirements of the brownfield site cleanup agreement and certificate of 23 completion. However, such covenant does not extend, and cannot be trans- 24 ferred, to a person who is responsible for the disposal on such site of 25 hazardous waste or the discharge of petroleum according to applicable 26 principles of statutory or common law liability as of the effective date 27 of the certification of completion issued pursuant to this title, unless 28 that person was party to the brownfield site cleanup agreement pursuant 29 to this article for the brownfield site on which such covenant was 30 based. A notice of such covenant shall be recorded and indexed as a 31 declaration of covenant in the office of the recording officer for the 32 county or counties where such brownfield site is located in the manner 33 prescribed by article nine of the real property law within thirty days 34 of signing the certificate of completion if the applicant is an owner or 35 within thirty days of acquiring title to the brownfield site if the 36 person is a prospective purchaser. 37 4. The provisions of this title shall not affect an action or a claim, 38 including a statutory or common law claim for contribution or indemnifi- 39 cation, that an applicant has or may have against a third party. 40 5. Nothing in this section shall be construed to affect either the 41 liability of any person with respect to any costs, damages, or investi- 42 gative or remedial activities that are not included in the voluntary 43 agreement or remedial investigation work plan and/or remedial work plan 44 for the brownfield site or the department's authority to maintain an 45 action or proceeding against any person who is not subject to the volun- 46 tary agreement or remedial work plan. 47 6. A person who has settled such person's liability to the department 48 under this subdivision shall not be liable for claims for contribution 49 regarding matters addressed in the order except that the person respon- 50 sible will not be released from liability for such person's own acts or 51 omissions causing wrongful death or personal injury. Such settlement 52 does not discharge any of the persons responsible under law to investi- 53 gate and remediate the hazardous waste unless its terms so provide, but 54 it reduces the potential liability of the others by the amount of the 55 settlement.
1 7. Nothing in this section shall be construed to affect the authority 2 of the department to reach settlement with other persons consistent with 3 its authority under applicable law. 4 8. Nothing in this section shall affect the liability of any person 5 with respect to any civil action brought by a party other than the 6 state. 7 9. In addition to any other powers the department may have, the 8 department shall have the authority to periodically inspect each brown- 9 field site to ensure that the use of the property complies with the 10 terms and conditions of the brownfield site cleanup agreement. 11 § 27-1423. Payment of state costs. 12 1. Pursuant to timetables contained in the brownfield cleanup site 13 agreement, the volunteer shall pay all state costs incurred in negotiat- 14 ing and overseeing implementation of such agreement. In addition, a 15 participant shall pay all costs incurred by the state up to the effec- 16 tive date of such agreement, provided, however, that such costs may be 17 based upon a negotiated flat-fee oversight amount as set forth in a 18 brownfield site cleanup agreement pursuant to this title. 19 2. Payment of such state costs identified in subdivision one of this 20 section shall be made to the hazardous waste remedial fund established 21 pursuant to section ninety-seven-b of the state finance law. 22 § 27-1425. Change of use. 23 1. At least sixty days before the start of physical alteration or 24 construction constituting a change of use at a brownfield site or at 25 least sixty days before a change of use at such site not involving any 26 physical alteration or construction, as the case may be, the person or 27 entity proposing to make a change of use shall provide written notifica- 28 tion to the department. 29 2. No person shall engage in any activity at a brownfield site that is 30 not consistent with restrictions placed upon the use of the property, or 31 that will, or that reasonably is anticipated to: prevent or interfere 32 significantly with a proposed, ongoing, or completed remedial program; 33 or expose the public health or the environment to a significantly 34 increased threat of harm or damage from such site. If the commissioner 35 determines that a proposed change of use is prohibited pursuant to this 36 section, he or she shall, within forty-five days after receipt of the 37 complete notice required by this section, provide the person giving such 38 notice with a written determination that such change of use will not be 39 authorized, together with the reasons for such determination. 40 3. For the purposes of this section: 41 (a) "change of use" means the transfer of title to all or part of such 42 brownfield site, the erection of any structure on such site, and the 43 creation of a park or other public or private recreational facility on 44 such site, or any activity that is likely to disrupt or expose hazardous 45 waste or petroleum or to increase direct human exposure; or any other 46 conduct that will or may tend to significantly interfere with an ongoing 47 or completed remedial program at such site. 48 (b) "complete notice" means a notice that adequately apprises the 49 department of the contemplated physical alteration of such site and how 50 such alteration may affect the site's proposed, ongoing, or completed 51 remedial program, or of the proposed new owner's ability to implement 52 the engineering and institutional controls associated with such site. 53 § 27-1429. Permit waivers. 54 The department, by and through the commissioner, shall be authorized 55 to exempt a person from the requirement to obtain any state or local 56 permit or other authorization for any activity needed to implement a
1 program for the investigation and/or remediation of hazardous waste 2 and/or petroleum; provided that the activity is conducted in a manner 3 which satisfies all substantive technical requirements applicable to 4 like activity conducted pursuant to a permit. 5 § 27-1431. Access to sites. 6 The department, by and through the commissioner, shall be authorized 7 to: 8 1. Require that any person permit a duly designated officer or employ- 9 ee of the department or of a municipal corporation, or any agent, 10 consultant, or contractor of the department or of a municipal corpo- 11 ration, or any other person, including an employee, agent, consultant, 12 or contractor of a responsible person acting at the direction of the 13 department, so authorized in writing by the commissioner, to enter upon 14 any property which has or may have been the site of hazardous waste 15 and/or petroleum disposal, and/or areas near such site, for the follow- 16 ing purposes: 17 a. to inspect and take samples of such hazardous waste and/or petrole- 18 um and/or environmental media, utilizing such sampling methods as may be 19 necessary or appropriate, including without limitation soil borings and 20 monitoring wells; provided, that no sampling methods involving the 21 substantial disturbance of the ground surface of such property may be 22 utilized until after a minimum of ten days' written notice thereof shall 23 have been provided to the owner and operator and occupant of such prop- 24 erty, if identifiable by reasonable efforts, unless the commissioner 25 makes a written determination that such notice will not allow the 26 protection of the public health or the environment, in which case two 27 days' written notice shall be sufficient; 28 b. to implement the investigation and/or remediation of hazardous 29 waste and/or petroleum and/or environmental media; provided that no such 30 work may be undertaken until after a minimum of ten days' written notice 31 thereof shall have been provided to the owner and operator and occupant 32 of such property, if identifiable by reasonable efforts, unless the 33 commissioner makes a written determination that such notice will not 34 allow the protection of the public health or the environment, in which 35 case two days' written notice shall be sufficient. 36 2. a. Require that any person furnish to the department, in a form and 37 manner as prescribed by the department, information relating to the 38 current and past hazardous waste and/or petroleum generation, treatment, 39 storage, disposal, and/or transportation activities of such person or 40 any other person now or formerly under the control of such person; in 41 the event such person cannot comply therewith, in whole or in part, such 42 person shall furnish to the department information describing all 43 efforts made by such person to comply therewith; any information so 44 furnished to the department shall be considered a "written instrument" 45 as defined in subdivision three of section 175.00 of the penal law; 46 b. Require that any person permit a duly designated officer or employ- 47 ee of the department at all reasonable times to have access to and to 48 copy all books, papers, documents, and records relating to the current 49 and past hazardous waste and/or petroleum generation, treatment, stor- 50 age, disposal, and/or transportation activities of such person or any 51 person now or formerly under the control of such person; 52 c. Require, by subpoena issued in the name of the department, the 53 production of books, papers, documents, and other records, and the 54 rendition of testimony by deposition under oath of any person relating 55 to the current and past hazardous waste and/or petroleum generation, 56 treatment, storage, disposal, and/or transportation activities of such
1 person or any person now or formerly under the control of such person; 2 such subpoenas and depositions shall be regulated by the civil practice 3 law and rules; the commissioner may invoke the powers of the supreme 4 court of the state of New York or any other court of competent jurisdic- 5 tion to compel compliance therewith. 6 § 2. Article 71 of the environmental conservation law is amended by 7 adding a new title 36 to read as follows: 8 TITLE 36 9 ENVIRONMENTAL EASEMENTS 10 Section 71-3601. Declaration of policy and statement of purpose. 11 71-3603. Definitions. 12 71-3605. Environmental easements; certain common law rules not 13 applicable. 14 71-3607. Coordination with local governments. 15 71-3609. Scope of this title. 16 71-3611. Severability. 17 § 71-3601. Declaration of policy and statement of purpose. 18 The legislature hereby finds and declares that contaminated site reme- 19 dial programs are an important and necessary component of the state's 20 policy of restoring and revitalizing real property located throughout 21 New York state. The legislature further finds that when an environmental 22 remediation project leaves residual contamination at levels that have 23 been determined to be safe for a specific use, but not all uses, or 24 includes engineered structures that must be maintained or protected 25 against damage to be effective, it is necessary to provide an effective 26 and enforceable means of ensuring the performance of maintenance, moni- 27 toring or operation requirements, and of ensuring the potential 28 restriction of future uses of the land, including restrictions on drill- 29 ing for or pumping groundwater for as long as any residual contamination 30 remains hazardous. The legislature declares, therefore, that it is in 31 the public interest to create environmental easements because such ease- 32 ments are necessary for the protection of human health and the environ- 33 ment and to achieve the requirements for remediation established at 34 contaminated sites. 35 § 71-3603. Definitions. 36 When used in this title: 37 1. "Affected local government" shall mean every municipality in which 38 land subject to an environmental easement is located. 39 2. "Environmental easement" shall mean an interest in real property, 40 created under and subject to the provisions of this title which contains 41 a use restriction and/or a prohibition on the use of land in a manner 42 inconsistent with engineering controls; provided that no such easement 43 shall be acquired or held by the state which is subject to the 44 provisions of article fourteen of the constitution. 45 § 71-3605. Environmental easements; certain common law rules not appli- 46 cable. 47 1. An environmental easement shall be granted by the title owners of 48 the relevant real estate only by an instrument, that complies with the 49 requirements of section 5-703 of the general obligations law. 50 2. The title owners shall furnish to the department abstracts of title 51 and other documents sufficient to enable the department to determine 52 that the easements shall be enforceable. An environmental easement shall 53 be in a form provided by regulation of the department. An environmental 54 easement shall: 55 (a) name the state, acting through the department, as grantee;
1 (b) contain a complete description of any use restrictions and/or 2 engineering control to which the real property is subject; 3 (c) run with the land, binding the owner of the land and the owner's 4 successors and assigns; 5 (d) include an acknowledgment by the commissioner of acceptance of the 6 easement by the department; and 7 (e) include an agreement to incorporate, either in full or by refer- 8 ence, the environmental easement in any leases, licenses, or other 9 instruments granting a right to use the property that may be affected by 10 such easement. 11 3. Until such time as the environmental easement is extinguished, the 12 property deed and all subsequent instruments of conveyance relating to 13 the subject property shall state in at least fifteen-point bold-faced 14 type: "This property is subject to an environmental easement held by the 15 New York state department of environmental conservation pursuant to 16 title 36 of article 71 of the environmental conservation law." 17 4. An environmental easement granted pursuant to this title shall be 18 enforceable in perpetuity. After the recording of the easement, each 19 instrument transferring an interest in the area affected by the easement 20 shall include a specific reference to the recorded easement. 21 5. An environmental easement granted pursuant to this section may be 22 extinguished or amended only by a release or amendment of the easement 23 executed by the commissioner and filed with the office of the recording 24 officer for the county or counties where the land is situated in the 25 manner prescribed by article nine of the real property law. 26 6. For any person who intentionally violates an environmental easement 27 the department may revoke the certificate of completion provided by 28 section 27-1419 of this chapter as to the relevant real estate. 29 7. An environmental easement shall be held only by the state, except 30 that the state shall not be authorized or empowered to acquire or hold 31 any environmental easement which is subject to the provisions of article 32 fourteen of the constitution. 33 8. An environmental easement shall be duly recorded and indexed as 34 such in the office of the recording officer for the county or counties 35 where the land is situate in the manner prescribed by article nine of 36 the real property law. The easement shall describe the property encum- 37 bered by the easement by adequate legal description or by reference to a 38 recorded map showing its boundaries and bearing the seal and signature 39 of a licensed land surveyor or, if the easement encumbers the entire 40 property described in a deed of record, the easement may incorporate by 41 reference the description in such deed, otherwise it shall refer to the 42 liber and page of the deed or deeds of the record owner or owners of the 43 real property burdened by the environmental easement. The property deed 44 and all subsequent instruments of conveyance relating to the property 45 encumbered by the easement shall reference, by book and page number, the 46 environmental easement. Such deed and instrument shall also specify that 47 the eligible property is subject to the restrictions contained in such 48 easement. An instrument for the purpose of creating, conveying, modify- 49 ing, or terminating an environmental easement shall not be effective 50 unless recorded. 51 9. The department shall include a copy of each environmental easement 52 in the database created pursuant to section 27-1415 of this chapter and 53 make such database readily searchable. 54 10. An environmental easement may be enforced in law or equity by its 55 grantor, by the state, or any affected local government as defined in 56 section 71-3603 of this title. Such easement is enforceable against the
1 owner of the burdened property, any lessees, and any person using the 2 land. Enforcement shall not be defeated because of any subsequent 3 adverse possession, laches, estoppel, or waiver. No general law of the 4 state which operates to defeat the enforcement of any interest in real 5 property shall operate to defeat the enforcement of any environmental 6 easement unless such general law expressly states the intent to defeat 7 the enforcement of such easement or provides for the exercise of the 8 power of eminent domain. It is not a defense in any action to enforce an 9 environmental easement that: 10 (a) it is not appurtenant to an interest in real property; 11 (b) it is not of a character that has been recognized traditionally at 12 common law; 13 (c) it imposes a negative burden; 14 (d) it imposes affirmative obligations upon the owner of any interest 15 in the burdened property; 16 (e) the benefit does not touch or concern real property; 17 (f) there is no privity of estate or of contract; or 18 (g) it imposes an unreasonable restraint on alienation. 19 11. Agents, employees, or other representatives of the state may enter 20 and inspect the property burdened by an environmental easement in a 21 reasonable manner and at reasonable times to assure compliance with the 22 restriction. 23 12. The department may promulgate regulations establishing standards 24 and procedures for environmental easements. 25 § 71-3607. Coordination with local governments. 26 1. Whenever the department is granted an environmental easement, it 27 shall provide each affected local government with a copy of such ease- 28 ment and shall also provide a copy of any documents modifying or termi- 29 nating such environmental easement. 30 2. Whenever an affected local government receives an application for a 31 building permit or any other application affecting land use or develop- 32 ment of land that is subject to an environmental easement and that may 33 relate to or impact such easement, the affected local government shall 34 notify the department and refer such application to the department. The 35 department shall evaluate whether the application is consistent with the 36 environmental easement and shall notify the affected local government of 37 its determination in a timely fashion, considering the time frame for 38 the local government's review of the application. The affected local 39 government shall not approve the application until it receives approval 40 from the department. 41 § 71-3609. Scope of this title. 42 This title shall not affect any interests or rights in real property 43 which are not environmental easements, and shall not affect the rights 44 of owners to convey any interests in real property which they could now 45 create under existing law without reference to the terms of this title. 46 Nothing in this title shall diminish the powers granted by any other law 47 to acquire interests or rights in real property by purchase, gift, 48 eminent domain, or otherwise and to use the same for public purposes. 49 § 71-3611. Severability. 50 The provisions of this title shall be severable, and if any clause, 51 sentence, paragraph, subdivision, or part of this title shall be 52 adjudged by any court of competent jurisdiction to be invalid, such 53 judgment shall not affect, impair or invalidate the remainder thereof, 54 but shall be confined in its operation to the clause, sentence, para- 55 graph, subdivision, or part thereof directly involved in the controversy 56 in which such judgment shall have been rendered; provided that if an
1 environmental easement created pursuant to this title is determined by 2 any court of competent jurisdiction to be land or water or an interest 3 in land or water subject to the provisions of article fourteen of the 4 constitution, then the authority of the state to hold or acquire such 5 easement and the conveyance to the state of such easement shall be void 6 ab initio. 7 § 3. This act shall take effect immediately.
8 PART B
9 Section 1. Article 15 of the environmental conservation law is amended 10 by adding a new title 31 to read as follows: 11 TITLE 31 12 GROUNDWATER PROTECTION AND REMEDIATION PROGRAM 13 Section 15-3101. Short title. 14 15-3103. Legislative findings and intent. 15 15-3105. Purpose. 16 15-3107. Groundwater information management. 17 15-3109. Groundwater remediation strategy. 18 15-3111. Rules and regulations. 19 § 15-3101. Short title. 20 This title shall be known and may be cited as the "groundwater 21 protection act". 22 § 15-3103. Legislative findings and intent. 23 The legislature hereby finds and declares that: 24 1. The waters of the state are one of its most essential natural 25 resources. 26 2. Adequate supplies of good quality groundwater are critical to the 27 health and welfare of the residents of the state and to their economic 28 well-being. Groundwater contamination exists at levels which exceed 29 applicable standards, criteria and guidance values at many sites around 30 the state, including inactive hazardous waste disposal sites, brownfield 31 sites, and sites contaminated by the discharge of petroleum. The levels 32 and types of contaminants, the extent of contamination, and the present 33 and potential impacts on public health and the environment vary widely 34 from site to site, but cumulatively could endanger the integrity of the 35 water resources of New York state. 36 3. Due to the complexity of groundwater contamination problems, the 37 restoration of groundwater to its classified use may not currently be 38 feasible at some sites. 39 4. It is the intent of the legislature that groundwater be protected 40 for its classified use, the highest of which is drinking water. 41 § 15-3105. Purpose. 42 It is the intent of the legislature that the department develop a 43 strategy to address contaminated groundwater and implement a program to 44 remediate and manage groundwater resources in a manner that will ensure 45 long-term sustainability. 46 § 15-3107. Groundwater information management. 47 Information collected pursuant to this section shall be incorporated 48 into the geographic information system maintained by the department to 49 track remedial programs, pursuant to section 3-0315 of this chapter. 50 § 15-3109. Groundwater remediation strategy. 51 No later than three years after the effective date of this title, the 52 department, in consultation with the department of health, shall develop 53 and publish a strategy to address the long-term remediation of groundwa-
1 ter contamination, including strategies to protect groundwater from 2 future degradation from contaminated sites. 3 1. Such strategy shall govern all programs within the department 4 responsible for groundwater protection and remediation. Such strategy 5 shall include, but not be limited to: 6 (a) Recognition that both short- and long-term remediation strategies 7 may be necessary to address groundwater contamination. 8 (b) Identification of the long-term groundwater remedial activities 9 that are required to be taken by the state pursuant to title fourteen of 10 article twenty-seven of this chapter for sites which the department has 11 determined pose a significant threat, or which can be initiated by the 12 state pursuant to other provisions of this chapter to address groundwa- 13 ter contamination. 14 (c) Establishment of criteria for the prioritization of long-term 15 groundwater remediation activities to be performed by the department. 16 Such criteria shall include, but not be limited to: 17 (i) the current or reasonably anticipated future use of contaminated 18 groundwater as drinking water; 19 (ii) the current or reasonably anticipated future use of a groundwater 20 aquifer into which contaminated groundwater is flowing as drinking 21 water; 22 (iii) the current or reasonably anticipated future use of contaminated 23 groundwater for non-potable purposes including but not limited to recre- 24 ational uses, institutional uses and agricultural or non-agricultural 25 irrigation; 26 (iv) community needs; 27 (v) feasibility of remediation; and 28 (vi) protection of natural resources and minimizing the impairment of 29 the resource. 30 Notwithstanding subparagraphs (i) through (vi) of this paragraph, 31 while the current use of groundwater as drinking water may be consid- 32 ered, the absence of such use shall not exclude the need for remedi- 33 ation. 34 2. A public comment period of at least one hundred twenty days shall 35 be held on the initial draft strategy. Such strategy shall be updated 36 regularly based on progress made and the availability of new remedial 37 technologies, scientific information, and field data. Each updated draft 38 strategy shall be released to the public, and will require a public 39 comment period of at least sixty days. 40 3. The department is responsible pursuant to title fourteen of article 41 twenty-seven of this chapter for the remediation of off-site groundwater 42 contamination emanating from sites being remediated by a volunteer, 43 which sites have been determined to be a significant threat. Within six 44 months of the determination of significant threat at a site being reme- 45 diated by the volunteer the department shall bring an enforcement action 46 against any parties known or suspected to be responsible for contam- 47 ination at or emanating from the site which is the subject of such 48 agreement. If such action cannot be brought, or does not result in the 49 initiation of a remedial program by such party or parties at such site, 50 the department shall use best efforts to begin a remedial program to 51 perform the remediation of off-site contamination at such site within 52 one year of the completion of such enforcement action or the completion 53 of the volunteer's remedial program, whichever is later. 54 § 15-3111. Rules and regulations. 55 The commissioner shall promulgate rules and regulations necessary and 56 appropriate to carry out the purposes of this title.
1 § 2. This act shall take effect immediately.
2 PART C
3 Section 1. The environmental conservation law is amended by adding a 4 new section 3-0315 to read as follows: 5 § 3-0315. Geographic information system. 6 1. The department shall create or modify an existing geographic infor- 7 mation system, and maintain such system for purposes including, but not 8 limited to, incorporating information from remedial programs under its 9 jurisdiction, and shall also incorporate information from the source 10 water assessment program collected by the department of health, data 11 from annual water supply statements prepared pursuant to section eleven 12 hundred fifty-one of the public health law, information from the data- 13 base pursuant to title fourteen of article twenty-seven of this chapter, 14 and any other existing data regarding soil and groundwater contamination 15 currently gathered by the department, as well as data on contamination 16 that is readily available from the United States geological survey and 17 other sources determined appropriate by the department. 18 2. The department shall make reasonable efforts to include additional 19 data, including data from well logs currently required to be filed with 20 the department pursuant to section 15-1527 of this chapter. 21 3. Parties required to submit data pursuant to any reporting require- 22 ments set forth in this section shall, upon request of the department, 23 submit such data in an electronic format acceptable to the department. 24 § 2. This act shall take effect immediately.
25 PART D
26 Section 1. Subdivision 7 of section 56-0101 of the environmental 27 conservation law, as added by chapter 413 of the laws of 1996, is 28 amended to read as follows: 29 7. "Environmental restoration project" means a project to investigate 30 or to
remediate hazardous substances [ 31 32 § 2. Section 56-0105 of the environmental conservation law is amended 33 by adding a new subdivision 5 to read as follows: 34 5. Shall give a priority and preference to a project in any brownfield 35 opportunity area designated pursuant to section nine hundred seventy-r 36 of the general municipal law. 37 § 3. Section 56-0502 of the environmental conservation law, as added 38 by chapter 413 of the laws of 1996, is amended to read as follows: 39 § 56-0502. Definitions. 40 1. "Community based organization" shall mean a not-for-profit corpo- 41 ration, exempt from taxation under section 501(c)(3) of the internal 42 revenue code whose stated mission is promoting reuse of brownfield sites 43 within a specified geographic area in which the community based organ- 44 ization is located, which has twenty-five percent or more of its board 45 of directors residing in the community in such area; and represents a 46 community with a demonstrated financial need. "Community based organiza- 47 tion" shall not include any not-for-profit corporation that has caused 48 or contributed to the release or threatened release of hazardous waste 49 or petroleum from or onto the brownfield site, or any not-for-profit 50 corporation that generated, transported, or disposed of, or that 51 arranged for, or caused, the generation, transportation, or disposal of 52 hazardous waste or petroleum from or onto the brownfield site. This
1 definition shall not apply if more than twenty-five percent of the 2 members, officers or directors of the not-for-profit corporation are or 3 were employed by or receiving compensation from any person responsible 4 for a site under title thirteen of article twenty-seven of this chapter 5 or article twelve of the navigation law or under applicable principles 6 of statutory or common law liability. 7 2. "Cost", for purposes of this title, shall have the same meaning as 8 provided in subdivision four of section 56-0101 of this article, except 9 that such term shall not include the requirement to reduce the cost of 10 an approved project in accordance with any federal or state funds for 11 the project received or to be received by the municipality. 12 3. "Environmental restoration investigation project" shall mean a 13 project, undertaken in accordance with the requirements of this title, 14 to investigate hazardous substances located in, on, or emanating from 15 real property held in title by a municipality. 16 4. "Environmental restoration remediation project" shall mean a 17 project, undertaken in accordance with the requirements of this title, 18 to remediate hazardous substances located in, on, or emanating from real 19 property held in title by a municipality. 20 [ 21 shall have
the same meaning as provided in subdivision [ 22 of section 56-0101 of this article, except that such term shall not 23 refer to a municipality that generated, transported, or disposed of, 24 arranged for, or that caused the generation, transportation, or disposal 25 of hazardous substance located at real property proposed to be investi- 26 gated or to be remediated under an environmental restoration project. 27 For purposes of this title, the term municipality includes a munici- 28 pality acting in partnership with a community based organization. 29 6. "State assistance", for purposes of this title, shall mean in the 30 case of a contract authorized by subdivision one of section 56-0503 of 31 this title, payments made to a municipality to reimburse the munici- 32 pality for the state share of the costs incurred by the municipality to 33 undertake an environmental restoration project; 34 § 4. Section 56-0503 of the environmental conservation law, as added 35 by chapter 413 of the laws of 1996, is amended to read as follows: 36 § 56-0503. Environmental restoration projects; state assistance. 37 1. The commissioner may enter into a contract with a municipality to 38 provide state assistance to such municipality to undertake an environ- 39 mental restoration project. The amount of state assistance payment for 40 such project
shall be up to an amount of [ 41 (a) ninety percent of the eligible costs of such project, subject to 42 the provisions set forth in paragraph (b) of this subdivision; 43 (b) one hundred percent of the eligible costs of any remediation 44 directed by the department to be undertaken outside the boundaries of 45 the real property that is subject to an environmental restoration 46 project approved by the department. 47 2. In addition to such other terms and conditions that the commission- 48 er may deem
to be appropriate, [ 49 sion one of this section shall provide as follows: 50 (a) An estimate of the cost of such project as determined by the 51 commissioner at the time of such contract's execution; 52 (b) An agreement by the commissioner to periodically reimburse the 53 municipality for eligible costs incurred during the progress of such 54 project. Such payments shall be subject to final computation and deter- 55 mination of the total state assistance share of the eligible costs of 56 the entire environmental restoration project;
1 (c) A
provision [ 2 ance with the required departmental approval of any settlement with a 3
responsible party, any responsible party payments[ 4 5 6 before, during or after the completion of an environmental restoration 7 project, which were not included when the state share was calculated 8 pursuant to this section, the state assistance share shall be recalcu- 9 lated, and the municipality shall pay to the state, for deposit into the 10 environmental restoration project account of the hazardous waste remedi- 11 al fund established under section ninety-seven-b of the state finance 12 law, the difference between the original state assistance payment and 13 the recalculated state share. Recalculation of the state share shall be 14 done each
time a [ 15 16 by the municipality; 17 (d) A
provision that if any monies received from [ 18 19 20 environmental restoration project exceed the municipality's cost of such 21 property, including taxes owed to the municipality upon acquisition, and 22 the municipality's cost of the environmental restoration project, the 23 amount of such excess necessary to reimburse the state of New York for 24 the state assistance provided to the municipality under this title shall 25 be [ 26 27 York for deposit into the environmental restoration project account of 28 the hazardous waste remedial fund established under section ninety-sev- 29 en-b of the state finance law; 30 (e) An agreement by the municipality to proceed expeditiously with 31 and complete such project in accordance with plans approved for payment 32 of the municipality's share of such project's cost; 33 (f) An agreement by the municipality that it shall prepare and imple- 34 ment a
public participation plan [ 35 36 undertaken pursuant to this title. The requirements of the plan shall be 37 governed by decision of the municipality to proceed with remediation of 38 the property under this title. However, in all cases, implementation of 39 the plan shall be completed as part of the project. In those cases where 40 the municipality does not intend to proceed with remediation of the 41 property, the plan shall provide timely and accessible disclosure of the 42 results of the investigation to the interested public. The plan shall 43 provide for adequate public notice of the availability of the investi- 44 gation results; an opportunity for submission of written comments; and a 45 filing of a notice of the results of the investigation as authorized by 46 subdivision three of section three hundred sixteen-b of the real proper- 47 ty law. Where the municipality intends to proceed with remediation of 48 the property under this title, the plan shall provide opportunities for 49 early, inclusive participation prior to the selection of a preferred 50 course of action, facilitate communication, including dialogue among the 51 municipality, the department, and the interested public, and provide 52 timely and accessible disclosure of information. At a minimum, the 53 design of the plan shall take into account the scope and scale of the 54 proposed environmental restoration remediation project, local interest, 55 and other relevant factors. The plan shall also provide for: adequate 56 public notice of the availability of a draft remedial plan; a forty-five
1 day period for submission of written comments; a public hearing on such 2 plan if substantive issues are raised by members of the affected commu- 3 nity; and technical assistance if so requested by members of the 4 affected community. Provided, however, that the requirements of this 5 subdivision shall not apply to interim remedial measures undertaken as 6 part of an environmental restoration project to address emergency site 7 conditions. In such instance, the department or such persons implement- 8 ing the interim remedial measure or making the request shall conduct 9 public participation activities as the department deems necessary and 10 appropriate under such circumstances. 11 (g) An agreement by the municipality that it shall put into place any 12 engineering
and/or institutional controls (including [ 13 environmental easements pursuant to title thirty-six of article seven- 14 ty-one of this chapter) that the department may deem necessary to allow 15 the contemplated use to proceed, that such engineering and/or institu- 16 tional controls shall be binding on such municipality, any successor in 17 title, and any lessees and that any successors in title and any lessees 18 cannot challenge state enforcement of such controls; 19 (h) In the event that such engineering controls and/or institutional 20 controls are
necessary, the municipality [ 21 shall [ 22 23 24 in section 27-1415 of the environmental conservation law. Such plan 25 shall be approved by the department. Failure to implement the plan or 26 maintain such controls shall constitute a violation of such contract and 27 shall terminate for the duration of such failure the protection afforded 28 under subdivision one of section 56-0509 of this title; 29 (i) In the
event that [ 30 such
municipality shall [ 31 32 33 34 35 36 37 38 forth in title thirty-six of article seventy-one of the environmental 39 conservation law; and 40 (j) A provision that exempts a municipality and any successor in 41 title from the requirement to obtain any state or local permit or other 42
authorization for any activity needed to implement [ 43 [ 44 45 title; provided that the activity is conducted in a manner which satis- 46 fies all substantive technical requirements applicable to like activity 47 conducted pursuant to a permit. 48 § 5. Section 56-0505 of the environmental conservation law, as added 49 by chapter 413 of the laws of 1996, is amended to read as follows: 50 § 56-0505. Environmental restoration projects; criteria. 51 1. The department shall determine the eligibility of an environmental 52 restoration project for state assistance under this title based upon the 53 following criteria: 54 (a) the benefit to the environment realized by the expeditious remedi- 55 ation of the property proposed to be subject to such project;
1 (b) the economic benefit to the state by the expeditious remediation 2 of the property proposed to be subject to such project; 3 (c) the potential opportunity of the property proposed to be subject 4 to such project to be used for public recreational purposes; 5 (d) real property in a designated brownfield opportunity area pursuant 6 to section nine hundred seventy-r of the general municipal law; and 7 [ 8 for the remediation of such property, including, but not limited to, 9 enforcement actions against responsible parties (other than the munici- 10 pality to which state assistance was provided under this title; or a 11 successor in title, lender, or lessee who was not otherwise a responsi- 12 ble party prior to such municipality taking title to the property), 13 state assistance payments pursuant to title thirteen of article twenty- 14 seven of this chapter, and the existence of private parties willing to 15 remediate such property using private funding sources. Highest priority 16 shall be granted to projects for which other such funding sources are 17 not available. 18 2. The department shall not enter into a contract with a municipality 19 pursuant to section 56-0503 of this title for an environmental restora- 20 tion project for any site listed in the registry of inactive hazardous 21 waste sites under section 27-1305 of this chapter and given a classi- 22 fication as described in subparagraph one or two of paragraph b of 23 subdivision
[ 24 3. The remediation objective of an environmental restoration remedi- 25 ation project shall meet the same standard for protection of public 26 health and the environment that applies to remedial actions undertaken 27 pursuant to section 27-1313 of this chapter. 28 4. After completion of such project, the municipality may use the 29 property for public purposes or may dispose of it. If the municipality 30 shall dispose of such property by sale to a responsible party, such 31 party shall pay to such municipality, in addition to such other consid- 32 eration, an amount of money constituting the amount of state assistance 33 provided to the municipality under this title plus accrued interest and 34 transaction costs and the municipality shall deposit that money into the 35 environmental restoration project account of the hazardous waste remedi- 36 al fund established under section ninety-seven-b of the state finance 37 law. 38 5. In
the event that [ 39 remediation objective shall not have been attained to the department's 40 satisfaction at the time of the municipality's disposition of such prop- 41 erty, such municipality shall be liable to ensure that such objective is 42 attained within the time called for in the state assistance contract. 43 § 6. Section 56-0507 of the environmental conservation law, as added 44 by chapter 413 of the laws of 1996, is amended to read as follows: 45 § 56-0507. Recovery of state assistance. 46 1. A municipality receiving state assistance under this title under- 47 takes an environmental restoration project as agent of the state with 48 respect to the incurrence of eligible costs. 49 2. The state shall make all reasonable efforts to recover the full 50 amount of any state assistance provided under this title through liti- 51 gation brought under this section or other statute or under the common 52 law, or through cooperative agreements, with responsible parties (other 53 than the municipality to which state assistance was provided under this 54 title; or a successor in title, lender, or lessee who was not otherwise 55 a
responsible party prior to the [ 56 title to such property).
1 3. Any and all monies recovered or reimbursed pursuant to this section 2 shall be deposited into the environmental restoration project account of 3 the
hazardous waste [ 4 section ninety-seven-b of the state finance law. 5 § 7. The environmental conservation law is amended by adding a new 6 section 56-0508 to read as follows: 7 § 56-0508. Foreclosure of a tax lien. 8 Notwithstanding any general, special or local law or ordinance to the 9 contrary: 10 1. upon the commencement of a proceeding to foreclose a tax lien, the 11 taxing district bringing the proceeding or any taxing district other 12 than the one foreclosing the tax lien, having any right, title, or 13 interest in, or lien upon, any parcel described in the petition of fore- 14 closure may upon twenty days notice to all parties having any right, 15 title, or interest in, or lien upon such parcel, move, at a special term 16 in the court in which the foreclosure proceeding was brought, for an 17 order granting such taxing district the temporary incidents of ownership 18 of such parcel for the sole purpose of entering the parcel and conduct- 19 ing an environmental restoration investigation project upon such parcel. 20 2. unless prior to the return date of the motion brought pursuant to 21 this section the parcel has been redeemed by a party having the right of 22 redemption, the court shall enter an order granting such relief to such 23 taxing district, or, if more than one taxing district applies for such 24 right, to the taxing district which the court determines has the great- 25 est public interest, but, where possible and proper, preferences for 26 such relief should be accorded first to cities and villages, second to 27 towns, and third to counties. Such order shall be granted upon such 28 terms and conditions as the court shall deem just and proper to permit 29 the environmental investigation to go on unhindered as well as to 30 protect the interests of all other parties having a right, title, or 31 interest in such parcel. Such order shall act as a stay to the foreclo- 32 sure action on such parcel until the environmental restoration investi- 33 gation project has been completed and the final investigation report 34 filed with the court pursuant to subdivision four of this section or 35 such other time as the court may deem proper, and particularly upon a 36 finding by the court that the investigation has not been carried out in 37 an expeditious manner. 38 3. such temporary incidents of ownership by such taxing district shall 39 also qualify it as being the owner of such property for the purposes of 40 obtaining funding from the state of New York for such environmental 41 restoration investigation project under this article or for such funding 42 from any source pursuant to any other state, federal, or local law, but 43 such incidents of ownership shall not be sufficient to qualify it as the 44 owner of such property for the purposes of holding it wholly or partial- 45 ly liable for any damages, past, present, or future from any release of 46 any hazardous material, substance, or contaminant into the air, ground, 47 or water, unless such release was caused by such taxing district. 48 4. within thirty days of the completion of the environmental restora- 49 tion investigation project and the receipt by the taxing jurisdiction of 50 the final report of such investigation, such taxing jurisdiction shall 51 file such report with the court on notice to the court and all other 52 parties of record, and the stay of the foreclosure shall be lifted 53 (unless lifted earlier by a prior court order), and all incidents of 54 temporary ownership of the taxing jurisdiction that was awarded such 55 taxing district, except any right to receive funding for the environ- 56 mental restoration investigation project, shall cease to exist, and
1 nothing in this subdivision shall preclude the taxing jurisdiction that 2 conducted the environmental restoration investigation project or the 3 taxing jurisdiction that commenced the foreclosure action, if it is a 4 different taxing jurisdiction than the taxing jurisdiction which 5 conducted the investigation, from withdrawing the parcel from foreclo- 6 sure pursuant to section eleven hundred thirty-eight of the real proper- 7 ty tax law. 8 5. all costs associated with any environmental restoration investi- 9 gation project conducted pursuant to the authority of this section shall 10 be added to the taxes owed to, and the tax lien of, the taxing district 11 that undertook the environmental restoration investigation project 12 pursuant to this section. 13 § 8. Subdivisions 1, 2, 3 and 5 of section 56-0509 of the environ- 14 mental conservation law, as added by chapter 413 of the laws of 1996, 15 are amended to read as follows: 16 1. (a) Notwithstanding any other provision of law and except as 17 provided in subdivision two of this section and in paragraph (h) of 18 subdivision two of section 56-0503 of this title, the following shall 19 not be liable to the state upon any statutory or common law cause of 20 action, or to any person upon any statutory cause of action arising out 21 of the presence of any hazardous substance in or on property at any time 22 before the effective date of a contract entered into pursuant to this 23 title: 24 (i) a municipality receiving state assistance under this title to 25 undertake an environmental restoration project and complying with the 26 terms and conditions of the contract providing such assistance; and 27 (ii) a
successor in title to the real property subject to [ 28 environmental restoration project; any lessee of such property; and any 29 person that provides financing to such party relative to the remedi- 30 ation,
restoration, or redevelopment of such property[ 31 such successor in title, lessee, or lender did not generate, arrange 32 for, transport, or dispose, and did not cause the generation, arrange- 33 ment for, transportation, or disposal of any hazardous substance located 34 at such property, and did not own such property. 35 (b) Notwithstanding any other provision of this title, any person 36 seeking the benefit of this subdivision shall bear the burden of proving 37 that a cause of action, or any part thereof, is attributable solely to 38 hazardous substances present in or on such parcel before the effective 39 date of such contract. 40 2. [ 41 apply to relieve any municipality, successor in title, lessee, or lender 42 from liability arising from: 43 (a) failing to implement such project to the department's satisfaction 44 or failing to comply with the terms and conditions of the contract; 45 (b) fraudulently demonstrating that the cleanup levels identified in 46 or to be identified in accordance with such project were reached; 47 (c) causing the release or threat of release at the property subject 48 to such project of any hazardous substance after the effective date of 49 such contract; or 50 (d) changing such property's use from the intended use as identified 51 in the contract pursuant to section 56-0503 of this title to a use 52 requiring a lower level of residual contamination unless the additional 53 remedial activities are undertaken which shall meet the same standard 54 for protection of public health and the environment that applies to 55 remedial actions undertaken pursuant to 27-1313 of this chapter so that
1 such use can be implemented with sufficient protection of public health 2 and the environment. 3 3. The state shall indemnify and save harmless any municipality, 4 successor in
title, lessee, or lender [ 5 graph (a) of subdivision one of this section in the amount of any judg- 6 ment[ 7 title, lessee, or lender in any court for any common law cause of action 8 arising out of the presence of any hazardous substance in or on property 9 at anytime before the effective date of a contract entered into pursuant 10 to this title. Such municipality, successor in title, lessee, or lender 11 shall be entitled to representation by the attorney general, unless the 12 attorney general determines, or a court of competent jurisdiction deter- 13 mines, that such representation would constitute a conflict of interest, 14 in which case the attorney general shall certify to the comptroller that 15 such party is entitled to private counsel of its choice, and reasonable 16 attorneys' fees and expenses shall be reimbursed by the state. Any 17 settlement of such an action shall be subject to the approval of the 18 attorney general as to form and amount, and this subdivision shall not 19 apply to any settlement of any such action which has not received such 20 approval. 21 5. In addition to any other powers the department may have, including, 22 but not limited to, the powers set forth in section 56-0515 of this 23 title, the department shall have the authority to periodically inspect 24 [ 25 complies with the terms and conditions of the contract and any engineer- 26 ing and/or institutional controls placed on the property. 27 § 9. Section 56-0511 of the environmental conservation law, as added 28 by chapter 413 of the laws of 1996, is amended to read as follows: 29 § 56-0511. Change of use. 30 1. At least sixty days before the start of physical alteration or 31 construction constituting a change of use at a property investigated or 32 remediated under an environmental restoration project, or at least sixty 33 days before a change of use at such a property not involving any phys- 34 ical alteration or construction, as the case may be, the person or enti- 35 ty proposing to make a change of use shall provide written notification 36 to the department and the clerks of the county and other municipalities 37 in which such property is located. 38 2. No person shall engage in any activity at a property investigated 39 or remediated under an environmental restoration project that is not 40 consistent with restrictions placed upon the use of the property, or 41 that will, or that reasonably is anticipated to: prevent or interfere 42 significantly with a proposed, ongoing, or completed project; or expose 43 the public health or the environment to a significantly increased threat 44 of harm
or damage [ 45 mines that a proposed change of use is prohibited pursuant to this 46 section, he or she shall, within forty-five days after receipt of the 47 complete notice required by this section, provide the person giving such 48 notice with a written determination that such change of use will not be 49 authorized, together with the reasons for such determination. 50 3. For the purposes of this section: 51 (i) "change of use" means the transfer of title to all or part of 52 property
subject to an environmental restoration [ 53 the
erection of any structure on such property, [ 54 55 park or other public or private recreational facility on such property, 56 or any activity that is likely to disrupt or expose hazardous substances
1 or to increase direct human exposure; or any other conduct that will or 2 may tend to significantly interfere with an ongoing or completed envi- 3 ronmental restoration project. 4 (ii) "complete notice" means a notice that adequately apprises the 5 department of the contemplated physical alteration of the property and 6 how such alteration may affect the property's proposed, ongoing, or 7 completed [ 8 to implement the engineering and institutional controls associated with 9 the [ 10 § 10. The environmental conservation law is amended by adding two new 11 sections 56-0513 and 56-0515 to read as follows: 12 § 56-0513. Permit waivers. 13 1. The department shall be exempt from the requirement to obtain any 14 state or local permit or other authorization for any activity needed to 15 implement a project to investigate or remediate hazardous substances 16 pursuant to this title; provided that the activity is conducted in a 17 manner which satisfies all substantive technical requirements applicable 18 to like activity conducted pursuant to a permit. 19 2. The department, by and through the commissioner, shall be author- 20 ized to exempt any agent, consultant, or contractor of the department 21 from the requirement to obtain any state or local permit or other 22 authorization for any activity needed to implement a project to investi- 23 gate or remediate hazardous substances pursuant to this title; provided 24 that the activity is conducted in a manner which satisfies all substan- 25 tive technical requirements applicable to like activity conducted pursu- 26 ant to a permit. 27 § 56-0515. Access to sites. 28 The department, by and through the commissioner, shall be authorized 29 to: 30 1. Require that any person permit a duly designated officer or employ- 31 ee of the department or of a municipal corporation, or any agent, 32 consultant, or contractor of the department or of a municipal corpo- 33 ration, or any other person, including an employee, agent, consultant, 34 or contractor of a responsible person acting at the direction of the 35 department, so authorized in writing by the commissioner, to enter upon 36 any property which has or may have a hazardous substance on such proper- 37 ty, and/or areas near such property, for the following purposes: 38 (a) To inspect and take samples of such hazardous substance and/or 39 environmental media, utilizing such sampling methods as may be necessary 40 or appropriate, including without limitation soil borings and monitoring 41 wells; provided that no sampling methods involving the substantial 42 disturbance of the ground surface of such property may be utilized until 43 after a minimum of ten days' written notice thereof shall have been 44 provided to the owner and operator and occupant of such property, if 45 identifiable by reasonable efforts, unless the commissioner makes a 46 written determination that such notice will not allow the protection of 47 the public health or the environment, in which case two days' written 48 notice shall be sufficient; 49 (b) To implement the cleanup, removal, remediation, or restoration of 50 hazardous substances and/or environmental media; provided that no such 51 work may be undertaken until after a minimum of ten days' written notice 52 thereof shall have been provided to the owner and operator and occupant 53 of such property, if identifiable by reasonable efforts, unless the 54 commissioner makes a written determination that such notice will not 55 allow the protection of the public health or the environment, in which 56 case two days' written notice shall be sufficient.
1 2. (a) Require that any person furnish to the department, in a form 2 and manner as prescribed by the department, information relating to the 3 current and past hazardous substance generation, treatment, storage, 4 disposal, and/or transportation activities of such person or any other 5 person now or formerly under the control of such person; in the event 6 such person cannot comply therewith, in whole or in part, such person 7 shall furnish to the department information describing all efforts made 8 by such person to comply therewith; any information so furnished to the 9 department shall be considered a "written instrument" as defined in 10 subdivision three of section 175.00 of the penal law; 11 (b) Require that any person permit a duly designated officer or 12 employee of the department at all reasonable times to have access to and 13 to copy all books, papers, documents, and records relating to the 14 current and past hazardous substance generation, treatment, storage, 15 disposal, and/or transportation activities of such person or any person 16 now or formerly under the control of such person; 17 (c) Require, by subpoena issued in the name of the department, the 18 production of books, papers, documents, and other records, and the 19 rendition of testimony by deposition under oath of any person relating 20 to the current and past hazardous substance generation, treatment, stor- 21 age, disposal, and/or transportation activities of such person or any 22 person now or formerly under the control of such person; such subpoenas 23 and depositions shall be regulated by the civil practice law and rules; 24 the commissioner may invoke the powers of the supreme court of the state 25 of New York to compel compliance therewith. 26 § 11. Subdivision 1 of section 316-b of the real property law, as 27 amended by chapter 140 of the laws of 1991, is amended and a new subdi- 28 vision 3 is added to read as follows: 29 1. On and after July first, nineteen hundred ninety-three, each 30 recording officer must provide, at the expense of his county, proper 31 books for making an index of present owners of inactive hazardous waste 32 disposal
sites contained in the [ 33 section 27-1305 of the environmental conservation law. The index shall 34 contain an alphabetical listing of all owners listed in such annual 35 report completed by the department of environmental conservation, 36 together with a reference, for each present owner, to the page and year 37 of the report where information regarding the inactive hazardous waste 38 site may be located. The index shall also contain the tax map parcel 39 number or the section, block and lot number of the site. 40 3. Each recording officer shall record and index such instruments as 41 may be required to be recorded pursuant to title thirteen or fourteen of 42 article twenty-seven of the environmental conservation law, or title 43 five of article fifty-six of the environmental conservation law, or any 44 regulation promulgated pursuant thereto, or any order or agreement 45 entered into under authority thereof or of any such regulations. 46 § 12. This act shall take effect immediately. 47 PART E
48 Section 1. Subdivisions 1 and 4 of section 27-1301 of the environ- 49 mental conservation law, subdivision 1 as amended by chapter 857 of the 50 laws of 1982 and subdivision 4 as added by chapter 282 of the laws of 51 1979, are amended to read as follows: 52 1. "Hazardous waste" means a waste which appears on the list or satis- 53 fies the characteristics promulgated by the commissioner pursuant to 54 section
27-0903 of this [ 55
1 2 3 4 5 6 7 8 9 list promulgated pursuant to section 37-0103 of this chapter; provided, 10 however, that the term "hazardous waste" does not include: 11 a. Natural gas, natural gas liquids, liquefied natural gas, synthetic 12 gas usable for fuel, or mixtures of natural gas and such synthetic gas; 13 nor 14 b. The residue of emissions from the engine exhaust of a motor vehi- 15 cle, rolling stock, aircraft, vessel, or pipeline pumping station 16 engine; nor 17 c. Source, byproduct, or special nuclear material from a nuclear inci- 18 dent, as those terms are defined in the atomic energy act of 1954, if 19 such release is subject to requirements with respect to financial 20 protection established under section 170 of such act (42 U.S.C. 2210) 21 or, for the purpose of section 104 of the comprehensive environmental 22 response, compensation and liability act of 1980 (42 U.S.C. 9604), or 23 any other response action, any source, byproduct, or special nuclear 24 material from any processing site designated under section 102(a)(1) or 25 302(a) of the Uranium Mill Tailings Radiation Control Act of 1978 (42 26 U.S.C. 7912(a)(1) or 7942(a)); nor 27 d. Petroleum as defined in section one hundred seventy-two of the 28 navigation law, even if appearing on the list promulgated pursuant to 29 section 37-0103 of this chapter. 30 4. "Person" means an individual, trust, firm, joint stock company, 31 limited liability company, corporation, joint venture, partnership, 32 association, state, municipality, commission, political subdivision of a 33 state, public benefit corporation or any interstate body. Provided, 34 however for purposes of this title, person shall not include a person as 35 defined in section 27-1323 of this title. 36 § 2. Subdivision 1 of section 27-1303 of the environmental conserva- 37 tion law, as added by chapter 282 of the laws of 1979, is amended to 38 read as follows: 39 1. [ 40 chapter of the laws of two thousand three designating and amending this 41 paragraph, each county shall, for the purpose of locating inactive 42 hazardous waste disposal sites, as that term was defined on January 43 first, two thousand three, survey its jurisdiction to determine the 44 existence and location of suspected inactive hazardous waste disposal 45 sites and
shall[ 46 47 the location of each such suspected site and the reasons for such suspi- 48 cion. 49 b. Commencing one year after the effective date of this paragraph, 50 each county shall, for the purpose of locating inactive hazardous waste 51 disposal sites, survey its jurisdiction to determine the existence and 52 location of suspected inactive hazardous waste disposal sites and shall 53 annually thereafter submit a report to the department describing the 54 location of each such suspected site and the reasons for such suspicion. 55 § 3. Section 27-1305 of the environmental conservation law, as 56 amended by chapter 857 of the laws of 1982, subdivision 1 and paragraphs
1 n and o of subdivision 3 as amended and paragraph p of subdivision 3 as 2 added by chapter 476 of the laws of 2000, paragraph b of subdivision 3 3 as amended by chapter 140 of the laws of 1991, the opening paragraph of 4 paragraph b and paragraph f of subdivision 4 as amended by chapter 649 5 of the laws of 1988, paragraph c of subdivision 4 as amended by chapter 6 416 of the laws of 1993, paragraph e of subdivision 4 as added by chap- 7 ter 38 of the laws of 1985 and subdivision 6 as amended by chapter 484 8 of the laws of 1994, is amended to read as follows: 9 § 27-1305. Reports by the department; registry of sites. 10 1. [ 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 inspection, either at each of its regional offices and regional sub-off- 47 ices, at the office of the county clerk or register for each county and 48 at the office of the town clerk for each town in Suffolk and Nassau 49 counties, or on its homepage on the internet, a registry of inactive 50 hazardous waste disposal sites in such region or, with respect to the 51 office of the county clerk or register, in such county. The department 52 shall provide a written copy upon requests by any person. The department 53 shall take all necessary action to ensure that the registry provides a 54 complete and up-to-date listing of all such sites within the region. 55 The department shall, on or before January first, two thousand four, and 56 annually thereafter, transmit the updated registry to the legislature
1 and the governor. A notice of the availability of the updated registry 2 shall be sent to the department of health and the chief executive offi- 3 cer of every county. Upon identification of an inactive hazardous waste 4 disposal site not included in the registry for the immediately preceding 5 year, the department shall notify in writing the chief executive officer 6 of each county, city, town and village and the public water supplier 7 which services the area in which such site is located that such site has 8 been so identified. For the purposes of this section, "water supplier" 9 shall mean any public water system as such term is defined for the 10 purposes of the sanitary code of the state of New York as authorized by 11 section two hundred twenty-five of the public health law. Such registry 12 shall include but need not be limited to those items among the following 13 which the commissioner determines to be necessary: 14 a. [ 15 16 (i) a general description of the site, which shall include the name, 17 if any, of the site, the address of the site, the type and quantity of 18 the hazardous waste disposed of at the site and the name of the current 19 owners of the site; 20 (ii) an assessment by the department of any significant environmental 21 problems at and near the site; 22 (iii) an assessment prepared by the department of health of any seri- 23 ous health problems in the immediate vicinity of the site and any health 24 problems deemed by the department of health to be related to conditions 25 at the site; 26 (iv) the status of any testing, monitoring or remedial actions in 27 progress or recommended by the department; 28 (v) the status of any pending legal actions and any federal, state or 29 local government permits or approvals concerning the site; and 30 (vi) an assessment of the relative priority of the need for action at 31 each site to remedy environmental and health problems resulting from the 32 presence of wastes at such site; 33 b. Address and site boundaries including tax map parcel numbers or 34 section, block and lot numbers; 35 c. Time period of use for disposal of hazardous waste; 36 d. Name of the current owner and operator and names of any past and 37 reported owners and operators during the time period of use for disposal 38 of hazardous waste; 39 e. Names of persons responsible for the generation and transportation 40 of hazardous waste disposed of; 41 f. Type and quantity of hazardous waste disposed of; 42 g. Manner of disposal of hazardous waste; 43 h. Nature of soils at the site; 44 i. Depth of water table at the site; 45 j. Location, nature and size of aquifers at the site; 46 k. Direction of present and historic groundwater flows at the site; 47 l. Location, nature and size of all surface waters at and near the 48 site; 49 m. Levels of contaminants, if any, in groundwater, surface water, air 50 and soils at and near the site resulting from hazardous wastes disposed 51 of at the site or from any other cause and areas known to be directly 52 affected or contaminated by wastes from the site; 53 n. As determined by the department of health, current quality of all 54 drinking water drawn from or distributed through the area in which the 55 site is located when the department of health determines that water
1 quality may have been affected by the site in question and any known 2 change in the quality of such drinking water over time; 3 o. Proximity of the site to private residences, public buildings or 4 property, school facilities, places of work or other areas where indi- 5 viduals may be present; and 6 p. The name, address and telephone number of the public water supplier 7 which services the area in which such site is located. 8 [ 9 listed in the registry and shall investigate areas or sites which it has 10 reason to believe should be included in the registry. The purpose of 11 these investigations shall be to develop the information required by 12 [ 13 included in
the [ 14 b. The department shall, as part of the registry, assess and, based 15 upon new information received, reassess by March thirty-first of each 16 year, in cooperation with the department of health, the relative need 17 for action at each site to remedy environmental and health problems 18 resulting from the presence of hazardous wastes at such sites; provided, 19 however, that if at the time of such assessment or reassessment, the 20 department has not placed a site in classification 1 or 2, as described 21 in subparagraphs one and two of this paragraph, and such site is the 22 subject of negotiations for, or implementation of, a brownfield site 23 cleanup agreement pursuant to title fourteen of this article, obligating 24 the person subject to such agreement to, at a minimum, eliminate or 25 mitigate all significant threats to the public health and environment 26 posed by the hazardous waste pursuant to such agreement, the department 27 shall defer its assessment or reassessment during the period such person 28 is engaged in good faith negotiations to enter into such an agreement 29 and, following its execution, is in compliance with the terms of such 30 agreement, and shall assess or reassess such site upon completion of 31 remediation to the department's satisfaction. In making its assess- 32 ments, the department shall place every site in one of the following 33 classifications: 34 (1) Causing or presenting an imminent danger of causing irreversible 35 or irreparable damage to the public health or environment--immediate 36 action required; 37 (2) Significant threat to the public health or environment--action 38 required; 39 (3) Does not present a significant threat to the public health or 40 environment--action may be deferred; 41 (4) Site properly closed--requires continued management; 42 (5) Site properly closed, no evidence of present or potential adverse 43 impact--no further action required. 44 c. (1) Any owner or operator of a site listed pursuant to this section 45 may petition the commissioner for deletion of such site, modification of 46 the site classification, or modification of any information regarding 47 such site by submitting a written statement in such form as the commis- 48 sioner may require setting forth the grounds of the petition. 49 (2) Within ninety days after the submittal of such petition, the 50 commissioner may convene an administrative hearing to determine whether 51 a particular site should be deleted from the registry, receive a modi- 52 fied site classification or whether any information regarding the site 53 should be modified. In any such hearing the burden of proof shall be on 54 the petitioner. No less than thirty days prior to the hearing the 55 commissioner shall cause a notice of hearing to be published in the next 56 available environmental notice bulletin and in a newspaper of general
1 circulation in the county in which the site is located. The commissioner 2 shall also notify in writing any owner or operator of the site no less 3 than thirty days prior to the hearing. The cost of any such hearing, 4 including the cost of any public notification, shall be at the 5 petitioner's expense. 6 (3) No later than thirty days following receipt of the complete record 7 as that term is defined in the state administrative procedure act, or 8 following the decision not to hold a hearing the commissioner shall 9 provide the owner or operator with a written determination accompanied 10 by reason therefor regarding the deletion of such site, modification of 11 the site classification or modification of any information regarding 12 such site. Any final decision rendered by the commissioner shall be 13 reviewable under article seventy-eight of the civil practice law and 14 rules. 15 (4) The commissioner may not delete any site from the registry without 16 providing public notice no less than sixty days prior to the proposed 17 deletion. Such notice of deletion shall be published in the next avail- 18 able environmental notice bulletin and in a newspaper of general circu- 19 lation in the county in which the site is located. The commissioner 20 shall also notify in writing any owner or operator of the site, if 21 applicable, no less than sixty days prior to the proposed deletion. The 22 commissioner shall provide a thirty-day period for submission of written 23 comments and may provide an opportunity for submission of oral comments 24 at a public meeting at or near the site. The commissioner shall summa- 25 rize any comments received and make the summary available to the public. 26 The commissioner may convene an administrative hearing to determine 27 whether a particular site should be deleted from the registry, receive a 28 modified site classification or whether any information regarding the 29 site should be modified. 30 (5) The department shall notify, as soon as possible and within avail- 31 able resources all public repositories of the registry of any modifica- 32 tions or deletions to such registry. The department shall also note any 33 such deletions or modifications in the next annual report and publica- 34 tion of the registry. 35 (6) The department shall, within ten days of any determination notify 36 the local governments of jurisdiction whenever a change is made in the 37 registry pursuant to this subdivision. 38 d. (1) Within seven months after the effective date of this subdivi- 39 sion the department shall notify by certified mail the owner of all or 40 any part of each site or area included in the registry, of the inclusion 41 of the site or area by mailing notice to such owner at the owner's last 42 known address. Thereafter, fifteen days before any site or area is added 43 to the registry, the department shall notify in writing by certified 44 mail the owner of all or any part of such site or area of the inclusion 45 of such site or area by mailing notice to each such owner at the owner's 46 last known address. 47 (2) Notice pursuant to paragraph a of this subdivision shall include 48 but not be limited to a description of the duties and restrictions 49 imposed by section 27-1317 of this title and by section one thousand 50 three hundred eighty-nine-d of the public health law. 51 (3) Non-receipt of any notice mailed to an owner pursuant to this 52 subdivision shall in no way affect the responsibilities, duties or 53 liabilities imposed on any person by this title or title XII-A of arti- 54 cle thirteen of the public health law. 55 e. The department shall, in consultation with the department of 56 health, evaluate existing site evaluation systems and shall develop a
1 system to select and prioritize sites for remedial action. Such system 2 shall incorporate environmental, natural resource and public health 3 concerns. 4 f. The
department shall develop a site status reporting system[ 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 subdivision one of this section provides a complete and up-to-date list- 28 ing of all sites in each region. 29 [ 30 later than January first, nineteen hundred eighty-four, and annually 31 thereafter prepare and submit in writing a "state inactive hazardous 32 waste remedial plan," hereinafter referred to as "the plan" to the state 33 superfund management board. Such board shall then approve of the plan or 34 make such modification as it is empowered to do pursuant to section 35 27-1319 of this chapter and submit the approved plan or modified plan, 36 to the governor and the legislature on or before March first, nineteen 37 hundred
eighty-four and annually thereafter. In [ 38 [ 39 a. Conduct or cause to be conducted field investigations of high 40 priority sites listed in the inactive hazardous waste disposal sites 41 registry for the purpose of further defining necessary remedial action. 42 To the maximum extent practicable, the department shall utilize existing 43 information including, but not limited to, subsurface borings and any 44 analyses or tests of samples taken from such sites by owners or opera- 45 tors, other responsible persons and any federal or non-federal agencies. 46 b. Make any subsurface borings and any analyses or tests of samples 47 taken as may be necessary or desirable to effectuate the field investi- 48 gations of sites as required under this section subject to the require- 49 ments of this title. 50 c. Make any record searches or document reviews as may be necessary or 51 desirable to effectuate the purposes of this section subject to the 52 requirements of this title. 53 d. Consider the effects on the health, environment and economy of the 54 state when assessing the relative priority of sites as required by this 55 section, especially any actual or significant threat of direct human 56 contact or contamination of groundwater or drinking water.
1 e. Detail the recommended strategy, methods and time frame by which 2 remedial action at sites shall be carried out, except that no informa- 3 tion or work product associated with actual or pending litigation shall 4 be divulged unless otherwise required by law. 5 f. Estimate, with reasonable specificity, based upon the field inves- 6 tigations, assessments, analyses, document reviews and other appropriate 7 data gathering, the costs of remedial action for sites included in the 8 plan, considering the appropriate methods and techniques as currently 9 exist in the field of hazardous waste management and any such estimates 10 or recommendations shall reflect such costs as are reasonably necessary 11 to contain, alleviate or end the threat to life or health or to the 12 environment. 13 [ 14 first of each succeeding year, the department shall prepare a status 15 report on the implementation of the plan, and an update of the policies, 16 program objectives, methods and strategies as outlined in the plan which 17 guide the overall inactive hazardous waste site remediation program. 18 Such status report shall reflect information available to the department 19 as of March thirty-first of each year, and shall include an accounting 20 of all monies expended or encumbered from the environmental quality bond 21 act of nineteen hundred eighty-six or the hazardous waste remedial fund 22 during the preceding fiscal year, such accounting to separately list: 23 a. monies expended or encumbered for the purpose of conducting site 24 investigations; 25 b. monies expended or encumbered for the purpose of conducting remedi- 26 al investigations and feasibility studies; 27 c. monies expended or encumbered for the purpose of conducting remedi- 28 al design studies; 29 d. monies expended or encumbered for the purpose of conducting remedi- 30 al construction activities; 31 e. monies expended or encumbered for operation, maintenance, and moni- 32 toring activities; 33 f. monies expended or encumbered for interim remedial measures; 34 g. monies expended or encumbered for administrative personnel costs 35 associated with activities conducted at inactive hazardous waste 36 disposal sites; 37 h. monies expended or encumbered for oversight activities at inactive 38 hazardous waste disposal sites; 39 i. monies expended or encumbered in stand-by contracts entered into 40 pursuant to section 3-0309 of this chapter and the purposes for which 41 these stand-by contracts were entered into; and 42 j. an accounting of payments received and payments obligated to be 43 received pursuant to this title, and a report of the department's 44 attempts to secure such obligations. 45 § 3-a. Paragraph e of subdivision 1 of section 27-1307 of the environ- 46 mental conservation law, as added by chapter 282 of the laws of 1979, is 47 amended to read as follows: 48 e. Any other information that the department may deem necessary to 49 prepare
the [ 50 plan or the registry required by section 27-1305 of this article. 51 § 4. Subdivisions 3, 4 and 5 of section 27-1309 of the environmental 52 conservation law, as amended by chapter 857 of the laws of 1982, are 53 amended to read as follows: &nbs |