See Bill
Summary
S T A T E O F N E W Y O R K
________________________________________________________________________
S. 7726 A. 11802
S E N A T E - A S S E M B L Y
August 10, 2004
___________
IN SENATE -- Introduced by Sen. MARCELLINO -- read twice and ordered
printed, and when printed to be committed to the Committee on Rules
IN ASSEMBLY -- Introduced by COMMITTEE ON RULES -- (at request of M. of
A. DiNapoli, Sidikman, DelMonte) -- read once and referred to the
Committee on Environmental Conservation
AN ACT to amend the environmental conservation law, in relation to the
brownfield cleanup act and environmental easements (Part A); to amend
the environmental conservation law, in relation to environmental ease-
ments (Part B); intentionally omitted (Part C); to amend the environ-
mental conservation law and the real property law, in relation to
environmental restoration projects (Part D); to amend the environ-
mental conservation law and the public health law, in relation to
hazardous waste sites (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 to liability
for certain discharges of petroleum (Part G); to amend the tax law, in
relation to the brownfield redevelopment tax credit and tax credit for
remediated brownfields; to amend the tax law and the insurance law, in
relation to the environmental remediation insurance credit; and to
amend chapter 1 of the laws of 2003, amending the tax law relating to
brownfield redevelopment tax credits, remediated brownfield credit for
real property taxes for qualified sites and environmental remediation
insurance credits, in relation to eligibility for such credits (Part
H); and to amend the navigation law, in relation to the New York envi-
ronmental protection and spill compensation fund; to amend chapter 83
of the laws of 1995, amending the environmental conservation law and
other laws relating to the registration of petroleum bulk storage
facilities, in relation to eliminating the expiration and repeal of
provisions authorizing disbursements from the New York environmental
protection and spill compensation fund for the petroleum bulk storage
program; and to amend the environmental conservation law, in relation
to special assessments on hazardous wastes, hazardous waste program
fees and hazardous waste program surcharges (Part I)
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
{ } is old law to be omitted.
LBD18692-01-4
S. 7726 2 A. 11802
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
1 Section 1. This act enacts technical amendments to chapter 1 of the
2 laws of 2003. Each component is wholly contained with a part identified
3 as parts A, B, D, E, F, G, H and I. The effective date for each
4 provision contained within such part is set forth in the last section of
5 such part. Any provision in any section "of this act", when used in
6 connection with that particular component, shall be deemed to mean and
7 refer to the corresponding section of the part in which it is found.
8 Section three of this act sets forth the general effective date of this
9 act.
10 PART A
11 Section 1. Section 27-1401 of the environmental conservation law, as
12 added by section 1 of part A of chapter 1 of the laws of 2003, is
13 amended to read as follows:
14 S 27-1401. Short title.
15 This {act} TITLE shall be known and may be cited as the "Brownfield
16 Cleanup Program".
17 S 2. Subdivisions 1, 2, 5, 6, 7, 8, 9, 11, 14, 15, 17, 20, 24, 26,
18 27, 28, 29 and 30 of section 27-1405 of the environmental conservation
19 law, as added by section 1 of part A of chapter 1 of the laws of 2003,
20 are amended and a new subdivision 7-a is added to read as follows:
21 1. "Applicant" shall mean a person whose request to participate in the
22 brownfield cleanup program under this title has been accepted by the
23 department:
24 (a) "Participant" shall mean an applicant who either: (i) was the
25 owner of the site at the time of the disposal {of hazardous waste} or
26 discharge of {petroleum} CONTAMINANTS or (ii) is otherwise a person
27 responsible according to applicable principles of statutory or common
28 law liability, unless such person`s liability arises solely as a result
29 of such person`s ownership or operation of or involvement with the site
30 subsequent to the disposal {of hazardous waste} or discharge of {petro-
31 leum} CONTAMINANTS.
32 (b) "Volunteer" shall mean an applicant other than a participant,
33 including without limitation a person whose liability arises solely as a
34 result of such person`s ownership or operation of or involvement with
35 the site subsequent to the disposal {of hazardous waste} or discharge of
36 {petroleum} CONTAMINANTS, provided however, such person exercises appro-
37 priate care with respect to {hazardous waste} CONTAMINATION found at the
38 facility by taking reasonable steps to:
39 (i) stop any continuing release;
40 (ii) prevent any threatened future release; and
41 (iii) prevent or limit human, environmental, or natural resource expo-
42 sure to any previously released {hazardous substance} CONTAMINATION.
43 2. "Brownfield{" or "brownfield} site" OR "SITE" shall mean any real
44 property, the redevelopment or reuse of which may be complicated by the
45 presence or potential presence of a {hazardous waste, petroleum, pollu-
46 tant, or} contaminant. Such term shall not include real property:
47 (a) listed in the registry of inactive hazardous waste disposal sites
48 under section 27-1305 of this article at the time of application to this
49 program and given a classification as described in subparagraph one or
50 two of paragraph b of subdivision {four} TWO of section 27-1305 OF THIS
51 ARTICLE; provided, however except until July first, two thousand five,
S. 7726 3 A. 11802
1 real property listed in the registry of inactive hazardous waste
2 disposal sites under SUBPARAGRAPH TWO OF paragraph b of subdivision two
3 of section 27-1305 of this article prior to the effective date of this
4 article, where such real property is owned by a volunteer{; such proper-
5 ty} shall not be deemed ineligible to participate AND FURTHER PROVIDED
6 THAT THE STATUS OF ANY SUCH SITE AS LISTED IN THE REGISTRY SHALL NOT BE
7 ALTERED PRIOR TO THE ISSUANCE OF A CERTIFICATE OF COMPLETION PURSUANT TO
8 SECTION 27-1419 OF THIS TITLE;
9 (b) listed on the national priorities list established under authority
10 of 42 U.S.C. section 9605;
11 (c) subject to an enforcement action under title seven or nine of this
12 article, except a treatment, storage or disposal facility subject to a
13 permit{, other than an interim status permit}; PROVIDED, THAT NOTHING
14 HEREIN CONTAINED SHALL BE DEEMED OTHERWISE TO EXCLUDE FROM THE SCOPE OF
15 THE TERM "BROWNFIELD SITE" A HAZARDOUS WASTE TREATMENT, STORAGE OR
16 DISPOSAL FACILITY HAVING INTERIM STATUS ACCORDING TO REGULATIONS PROMUL-
17 GATED BY THE COMMISSIONER;
18 (d) subject to an order for cleanup pursuant to article twelve of the
19 navigation law or pursuant to title ten of article seventeen of this
20 chapter EXCEPT SUCH PROPERTY SHALL NOT BE DEEMED INELIGIBLE IF IT IS
21 SUBJECT TO A STIPULATION AGREEMENT; or
22 (e) subject to any other on-going state or federal {environment} ENVI-
23 RONMENTAL enforcement action related to the {hazardous waste or petrole-
24 um} CONTAMINATION which is AT OR EMANATING FROM the site subject to
25 {this agreement} THE PRESENT APPLICATION.
26 5. "Brownfield site remedial program" or "remedial program" shall mean
27 all remedial activities or actions undertaken to eliminate, remove,
28 treat, abate, control, manage, or monitor {hazardous waste or petroleum}
29 CONTAMINATION at or emanating from a brownfield site, including, but not
30 limited to, the following:
31 (a) remedial investigation and remedy selection activities needed to
32 develop such a program;
33 (b) design activities;
34 (c) construction activities including without limitation grading,
35 contouring, trenching, grouting, capping, excavating, transporting,
36 incinerating, thermally treating, chemically treating, biologically
37 treating, {or} constructing leachate collection and treatment systems OR
38 APPLICATION OF INNOVATIVE TECHNOLOGIES APPROVED BY THE DEPARTMENT;
39 (d) interim remedial measures;
40 (e) post-construction operation, maintenance, and monitoring;
41 (f) restoration of the environment;
42 (g) involvement by local governments of jurisdiction and by the gener-
43 al public; or
44 (h) oversight by the department.
45 6. "Citizen participation plan" shall mean the description of citizen
46 participation activities prepared and carried out {by municipalities,
47 community based organizations and/or applicants} pursuant to section
48 27-1417 of this title.
49 7. "Concentrated solid or semi-solid hazardous {substances} WASTES"
50 shall mean solid or semi-solid hazardous {substances} WASTES present in
51 surface or subsurface soil, surface water or groundwater in a concen-
52 trated form, such as precipitated metallic salts, metal oxides, or chem-
53 ical sludges.
54 7-A. "CONTAMINANT" SHALL MEAN HAZARDOUS WASTE AND/OR PETROLEUM AS SUCH
55 TERMS ARE DEFINED IN THIS SECTION.
S. 7726 4 A. 11802
1 8. "Contamination" or "contaminated" shall mean the presence of a
2 {hazardous waste or petroleum} CONTAMINANT in any environmental media,
3 including soil, surface water, groundwater, air, or indoor air.
4 9. "Dense non-aqueous phase liquid" or "DNAPL" shall mean a hazardous
5 {substance} WASTE that is a liquid that is denser than water and does
6 not dissolve or mix easily in water.
7 11. "Engineering control" shall mean any physical barrier or method
8 employed to actively or passively contain, stabilize, or monitor
9 {hazardous waste or petroleum} CONTAMINATION, restrict the movement of
10 {hazardous waste or petroleum} CONTAMINATION to ensure the long-term
11 effectiveness of a remedial program, or eliminate potential exposure
12 pathways to {hazardous waste or petroleum} CONTAMINATION. Engineering
13 controls include, but are not limited to, pavement, caps, covers,
14 subsurface barriers, vapor barriers, slurry walls, building ventilation
15 systems, fences, access controls, provision of alternative water
16 supplies via connection to an existing public water supply, adding
17 treatment technologies to such water supplies, and installing filtration
18 devices on private water supplies.
19 14. "Free product" shall mean an immiscible non-aqueous phase liquid,
20 other than a dense non-aqueous phase liquid present as a liquid{,} in
21 surface or sub-surface soil, surface water or groundwater in a poten-
22 tially mobile state.
23 15. "Grossly contaminated soil" shall mean soil which contains free
24 product or residual contamination which is identifiable EITHER visually,
25 through the perception of odor, by elevated contaminant vapor levels, by
26 field instrumentation, or is otherwise readily detectable.
27 17. "Hazardous waste" {or "contaminant"} shall mean a hazardous waste
28 as defined in section 27-1301 of this article{, and petroleum as defined
29 in this section}.
30 20. "Light Non Aqueous Phase Liquid" or "LNAPL" shall mean a {hazard-
31 ous substance} CONTAMINANT that is a liquid that is lighter than water
32 and does not dissolve or mix easily in water.
33 24. {"Not-for-profit corporation" shall mean a not-for-profit corpo-
34 ration exempt from taxation under section 501(c) (3) of the internal
35 revenue code whose stated mission is not inconsistent with promoting
36 reuse of brownfield sites within a specified geographic area, and who
37 has exercised due care with respect to any hazardous waste or petroleum
38 at the brownfield site, taking into consideration the characteristics of
39 such hazardous waste, in light of all relevant facts and circumstances,
40 including but not limited to a not-for-profit corporation whose board of
41 directors shall include residents of the community or communities in
42 such specified geographic area and who has a demonstrated record of
43 community involvement and/or revitalization. A "not-for-profit corpo-
44 ration" shall not include any not-for-profit corporation whose acts or
45 omissions have caused or contributed to the release or threatened
46 release of a hazardous waste from or onto the brownfield site, or any
47 not-for-profit corporation that generated, transported, or disposed of,
48 or that arranged for, or caused the generation, transportation, or
49 disposal of hazardous waste from or onto the brownfield site. This defi-
50 nition shall not apply if any member, officer or director of the not-
51 for-profit corporation is or was employed or receiving compensation from
52 any person responsible for a site under title thirteen of this article,
53 any responsible party under this title or under applicable principles of
54 statutory or common law liability.
55 26.} "Off-site contamination" shall mean any {hazardous waste or
56 petroleum} CONTAMINATION which has emanated from a brownfield site
S. 7726 5 A. 11802
1 beyond the real property boundaries of such site, via movement through
2 air, indoor air, soil, surface water or groundwater.
3 {27.} 25. "On-site contamination" shall mean any {hazardous waste or}
4 contamination located within the real property boundaries of a brown-
5 field site.
6 {28.} 26. "Permanent cleanup" or "permanent remedy" shall mean a
7 cleanup or remedy that would allow a site to be used for any purpose
8 without restriction and without reliance on the long-term employment of
9 institutional or engineering controls.
10 {29.} 27. "Petroleum" shall have the meaning set forth in section one
11 hundred seventy-two of the navigation law.
12 {30.} 28. "Residual contamination" shall mean {a hazardous waste}
13 CONTAMINATION remaining as a solid, semi-solid or immiscible liquid in
14 surface or subsurface soil, geologic matrix pore spaces or fractures and
15 held in place by capillary forces or other physical or chemical forces
16 that will not drain from the formation.
17 S 3. Subdivisions 1, 2, 3, 4, 5, 7, 8 and 9 of section 27-1407 of the
18 environmental conservation law, as added by section 1 of part A of chap-
19 ter 1 of the laws of 2003, are amended to read as follows:
20 1. A person who seeks to participate in this program shall submit a
21 request to the department on a form provided by the department. Such
22 form shall include information to be determined by the department suffi-
23 cient to allow the department to determine eligibility and the CURRENT,
24 INTENDED AND reasonably anticipated FUTURE land use of the site pursuant
25 to section 27-1415 of this title.
26 2. If the {applicant} PERSON chooses, SUCH PERSON MAY ALSO SUBMIT a
27 work plan for a site investigation or a final report describing the
28 results of an investigation that meets the requirements of this article.
29 3. The department shall notify the {applicant} PERSON requesting
30 participation in this program within ten days after receiving such
31 request that such request is either complete or incomplete. In the event
32 the application is determined to be incomplete the department shall
33 specify in writing the missing necessary information required pursuant
34 to this article to complete the application AND SHALL HAVE TEN DAYS
35 AFTER RECEIPT OF THE MISSING INFORMATION TO ISSUE A WRITTEN DETERMI-
36 NATION IF THE APPLICATION IS COMPLETE.
37 4. Upon the receipt of an application, the department shall notify the
38 administrator of the New York environmental protection and spill compen-
39 sation fund to determine whether such person has been identified as
40 responsible for cleanup and removal costs for the discharge of petroleum
41 at or emanating from the brownfield site for which the person is seeking
42 participation and {that} WHETHER there is an outstanding claim against
43 such person pursuant to article twelve of the navigation law. The admin-
44 istrator shall notify the department and the {applicant} PERSON within
45 thirty days of such notice of any outstanding claim by the fund against
46 such person at the brownfield site for which the person is seeking
47 participation.
48 5. Upon the determination that the application is complete, the
49 department shall commence a thirty day comment period and place a
50 notification of receipt of request to participate in this program in the
51 environmental notice bulletin and provide newspaper notice. The depart-
52 ment shall also provide notice thereof in writing to the chief executive
53 officer and zoning board of each county, city, town and village in which
54 such brownfield site is located, residents {of} ON AND/OR ADJACENT TO
55 the site, the public water supplier which services the area in which
56 such brownfield site is located, any person who has requested to be
S. 7726 6 A. 11802
1 placed on the BROWNFIELD site contact list and the administrator of any
2 school or day care facility located on AND/OR ADJACENT TO the site for
3 the purposes of posting and/or dissemination at the facility. For
4 purposes of this section "water supplier" means any public water system
5 as such term is defined for the purposes of the sanitary code of the
6 state of New York as authorized by section two hundred twenty-five of
7 the public health law. Provided, however, that where the site or adja-
8 cent real property contains multiple dwelling units, the {applicant}
9 PERSON shall work with the department to develop an alternative method
10 for providing such notice in lieu of mailing to each individual.
11 7. In the event a final investigation report describing the results of
12 an investigation that meets the requirements of this article was submit-
13 ted with the application, the {applicant} PERSON shall establish a docu-
14 ment repository, notify individuals on the BROWNFIELD site contact list,
15 and provide for a thirty day comment period. Within sixty days after
16 receiving {applicant`s} A PERSON`S application the commissioner shall
17 inform the {applicant} PERSON in writing that the investigation is
18 complete or that the investigation is incomplete and specify the missing
19 necessary information required pursuant to this article to complete the
20 investigation and/or the final investigation report.
21 8. The department shall reject such request if:
22 (a) the department{, based on the preliminary environmental assessment
23 and/or other information the department possesses,} determines that the
24 request is for real property which does not meet the requirements of a
25 brownfield site as defined in this title; or
26 (b) there is an action or proceeding relating to the brownfield site
27 against the person who is requesting participation that is pending in
28 any civil or criminal court in any jurisdiction, or before any state or
29 federal administrative agency or body, wherein the state or federal
30 government seeks the investigation, removal, or remediation of {hazard-
31 ous wastes or petroleum} CONTAMINATION or penalties{.};
32 (c) THERE IS AN ORDER PROVIDING FOR THE INVESTIGATION, REMOVAL, OR
33 REMEDIATION OF CONTAMINATION RELATING TO THE BROWNFIELD SITE AGAINST THE
34 PERSON WHO IS REQUESTING PARTICIPATION; OR
35 (D) The person requesting participation is subject to an outstanding
36 claim as provided in subdivision four of this section.
37 9. The department may reject such request for participation if the
38 department determines that the public interest would not be served by
39 granting such request. The department shall consider factors, including
40 but not limited to, the following:
41 (a) The {applicant} PERSON has been determined in an administrative,
42 civil or criminal proceeding to have violated any provision of this
43 article, any related order or determination of the commissioner, any
44 regulation promulgated pursuant to this article, or any similar statute,
45 regulation, order of the federal or other state government.
46 (b) The {applicant} PERSON has been denied entry into this program
47 based upon one or more of the provisions of this subdivision, or a simi-
48 lar provision of federal or other state law.
49 (c) The {applicant} PERSON has been found in a civil proceeding to
50 have committed a negligent or intentionally {tortuous} TORTIOUS act, or
51 has been convicted in a criminal proceeding of a criminal act involving
52 the handling, storing, treating, disposing or transporting {hazardous
53 waste or petroleum} OF CONTAMINANTS.
54 (d) The {applicant} PERSON has been convicted of a criminal offense
55 under the laws of any state or of the United States which involves a
56 violent felony offense, fraud, bribery, perjury, theft, or an offense
S. 7726 7 A. 11802
1 against public administration as that term is used in article one
2 hundred ninety-five of the penal law.
3 (e) The {applicant} PERSON has in any matter within the jurisdiction
4 of the department knowingly falsified or concealed a material fact or
5 knowingly submitted a false statement or made use of or made a false
6 statement on or in connection with any document or application submitted
7 to the department.
8 (f) The {applicant} PERSON is either:
9 (1) an individual who had a substantial interest in or acted as a high
10 managerial agent or director for any corporation, partnership, associ-
11 ation or organization which committed an act or failed to act, and such
12 act or failure to act could be the basis for the denial of a {permit}
13 REQUEST FOR PARTICIPATION pursuant to this section or regulations
14 promulgated thereunder if such corporation, partnership, association or
15 organization {applied for a permit} SUBMITTED A REQUEST under this
16 title;
17 (2) a corporation, partnership, association, organization, or any
18 principal thereof, or any person holding a substantial interest therein,
19 which committed an act or failed to act, and such act or failure to act
20 could be the basis for the denial of a {permit} REQUEST FOR PARTIC-
21 IPATION pursuant to this section or regulations promulgated thereunder
22 if such corporation, partnership, association or organization {applied
23 for a permit} SUBMITTED A REQUEST under this title; or
24 (3) a corporation, partnership, association or organization or any
25 high managerial agent or director thereof, or any person holding a
26 substantial interest therein, acting as high managerial agent or direc-
27 tor for or holding a substantial interest in another corporation, part-
28 nership, association or organization which committed an act or failed to
29 act, and such act or failure to act could be the basis for the denial of
30 a {permit} REQUEST FOR A PARTICIPATION pursuant to this section or regu-
31 lations promulgated thereunder had such other corporation, partnership,
32 association or organization {applied for a permit} SUBMITTED A REQUEST
33 under this title.
34 For the purposes of this subdivision, "high managerial agent" has the
35 same meaning as is given that term in section 20.20 of the penal law,
36 and "substantial interest" shall be defined in regulations promulgated
37 by the commissioner.
38 S 4. Section 27-1409 of the environmental conservation law, as added
39 by section 1 of part A of chapter 1 of the laws of 2003, is amended to
40 read as follows:
41 S 27-1409. Brownfield site cleanup agreement.
42 The agreement shall include, but not be limited to, the following
43 provisions:
44 1. ONE DESCRIBING THE BOUNDARIES OF THE REAL PROPERTY THAT IS SUBJECT
45 TO THE BROWNFIELD SITE CLEANUP AGREEMENT;
46 2. One requiring the applicant to pay for state costs; provided,
47 however, that with respect to a brownfield site {after} which the
48 department has determined constitutes a significant threat to the public
49 health or environment the department may include a provision requiring
50 the applicant to provide a technical assistance grant, as described in
51 subdivision {three} FOUR of section 27-1417 of this {article} TITLE and
52 under the conditions described therein, to an eligible party in accord-
53 ance with procedures established under such program, with the cost of
54 such a grant INCURRED BY A VOLUNTEER serving as an offset against such
55 state costs. WHERE THE APPLICANT IS A PARTICIPANT, THE DEPARTMENT SHALL
S. 7726 8 A. 11802
1 INCLUDE PROVISIONS RELATING TO RECOVERY OF STATE COSTS INCURRED BEFORE
2 THE EFFECTIVE DATE OF SUCH AGREEMENT;
3 {2} 3. One setting forth a process for resolving disputes arising from
4 the evaluation, analysis, and oversight of the implementation of the
5 work plan as described;
6 {3} 4. One requiring an indemnification provision which holds the
7 state harmless from any claim, suit, action, and cost of every name and
8 description arising out of or resulting from the fulfillment or
9 attempted fulfillment of the agreement, except for those claims, suits,
10 actions, and costs arising from the state`s gross negligence or willful
11 or intentional misconduct;
12 {4} 5. One authorizing the department to terminate a brownfield site
13 cleanup agreement at any time during the implementation of such agree-
14 ment if the applicant implementing such agreement fails to substantially
15 comply with such agreement`s terms and conditions;
16 {5} 6. One {exempting} STATING THAT THE DEPARTMENT MAY EXEMPT the
17 applicant from the requirement to obtain any state or local permit or
18 other authorization {for any activity satisfying the following criteria:
19 (a) the activity is conducted on the brownfield site or on different
20 premises that are under common control or are contiguous to or phys-
21 ically connected with the brownfield site and the activity manages
22 exclusively {hazardous waste and/or petroleum} CONTAMINATION from such
23 brownfield site,
24 (b) the activity satisfies all substantive technical requirements
25 applicable to like activity conducted pursuant to a permit as determined
26 by the department, and
27 (c) the activity is conducted under such brownfield site cleanup
28 agreement} PURSUANT TO SECTION 27-1429 OF THIS TITLE;
29 {6} 7. One stating that the department shall not consider the appli-
30 cant an operator of such brownfield site based solely upon execution or
31 implementation of such brownfield site cleanup agreement for purposes of
32 remediation liability;
33 {7. A requirement} 8. ONE REQUIRING that the applicant conduct inves-
34 tigation and/or remediation activities pursuant to one or more work
35 plans which are approved by the department;
36 {8} 9. One requiring the preparation and implementation of a citizen
37 participation plan consistent with the requirements of this title as
38 soon as possible following execution of the agreement but no later than
39 prior to the preparation of a draft remedial investigation plan by the
40 applicant which shall include a description of citizen participation
41 activities already performed by THE APPLICANT AND/OR the department;
42 {9} 10. One requiring a waiver by the applicant, effective upon the
43 {issuance of a certificate of completion pursuant to section 27-1419 of
44 this title} EXECUTION OF THE BROWNFIELD SITE CLEANUP AGREEMENT, {of} any
45 right {of} such {volunteer} APPLICANT has or may have to make a claim
46 AGAINST THE STATE OF NEW YORK pursuant to article twelve of the naviga-
47 tion law with respect to the brownfield site, and a release of the New
48 York environmental protection and spill compensation fund from any and
49 all legal or equitable claims or causes of action that such {volunteer}
50 APPLICANT may have as a result of entering into a brownfield site CLEAN-
51 UP agreement or fulfilling a brownfield site remedial program at such
52 site; and
53 {10} 11. The inclusion of other conditions considered necessary by the
54 department concerning the effective and efficient implementation of this
55 title{, and, where the applicant is a participant, the department shall
S. 7726 9 A. 11802
1 include provisions relating to recovery of state costs incurred before
2 the effective date of such agreement.};
3 12. NOTHING IN THIS SECTION SHALL PROHIBIT OR LIMIT THE DEPARTMENT
4 FROM TERMINATING A BROWNFIELD SITE CLEANUP AGREEMENT AT ANY TIME DURING
5 ITS IMPLEMENTATION IF THE APPLICANT FAILS TO COMPLY SUBSTANTIALLY WITH
6 SUCH AGREEMENT`S TERMS AND CONDITIONS.
7 S 5. Subdivisions 1, 2, 3, 5 and 6 of section 27-1411 of the environ-
8 mental conservation law, as added by section 1 of part A of chapter 1 of
9 the laws of 2003, are amended to read as follows:
10 1. A remedial investigation work plan shall provide for the investi-
11 gation and characterization of the nature and extent of the contam-
12 ination within the boundaries of the brownfield site; provided, however,
13 a participant shall also be required to fully investigate and character-
14 ize the nature and extent of contamination emanating from such site{. An
15 applicant}; AND A VOLUNTEER must perform a qualitative exposure assess-
16 ment pursuant to subdivision two of section 27-1415 OF THIS TITLE
17 regarding contamination emanating from such site. Such work plan shall
18 require that the applicant cause a final report to be prepared and
19 submitted to the department that identifies the investigation activities
20 completed pursuant to such work plan. Such final report, at a minimum,
21 shall:
22 (a) Fully characterize the nature and extent of contamination at the
23 brownfield site; a participant shall also fully characterize the nature
24 and extent of contamination that has {migrated} EMANATED from the brown-
25 field site; and {an applicant} A VOLUNTEER shall describe the findings
26 of the off-site exposure assessments;
27 (b) State whether the completed investigation has demonstrated that
28 conditions at the brownfield site (1) require remediation in order to
29 meet the remedial requirements of this title; or (2) meet the require-
30 ments of this title without necessity for remediation;
31 (c) {For it to be determined that the requirements of this title have
32 been met without the necessity for remediation, an alternatives analysis
33 pursuant to section 27-1413 of this title must support such determi-
34 nation for all sites which do not meet the requirements in track 1 for
35 unrestricted use; and
36 (d)} Within twenty days of the completion of the final report the
37 department shall {determine if} MAKE A FINAL DETERMINATION REGARDING
38 WHETHER the site poses a significant threat based on criteria {devel-
39 oped} PROMULGATED pursuant to title thirteen of this article{.}; AND
40 (D) FOR IT TO BE DETERMINED THAT THE REQUIREMENTS OF THIS TITLE HAVE
41 BEEN MET WITHOUT THE NECESSITY FOR REMEDIATION, AN ALTERNATIVES ANALYSIS
42 PURSUANT TO SECTION 27-1413 OF THIS TITLE MUST SUPPORT SUCH DETERMI-
43 NATION FOR ALL SITES WHICH DO NOT MEET THE REQUIREMENTS IN TRACK 1 FOR
44 UNRESTRICTED USE AND THE DEPARTMENT MUST HAVE MADE A FINAL DETERMINATION
45 THAT THE SITE DOES NOT POSE A SIGNIFICANT THREAT.
46 2. A remedial work plan shall provide for the development and imple-
47 mentation of a remedial program for such contamination within the bound-
48 aries of such brownfield site; provided, however, that a participant
49 shall also be required to provide in such work plan for the development
50 and implementation of a remedial program for contamination that has
51 {migrated} EMANATED from such site.
52 3. Interim remedial measures. (a) Interim remedial measure work plan.
53 For interim remedial measures that are not emergency response actions an
54 interim remedial measure work plan shall be prepared by the applicant
55 containing such provisions as the department deems appropriate.
S. 7726 10 A. 11802
1 (b) Interim remedial measure report. For interim remedial measures
2 that are not emergency response actions, an interim remedial measure
3 report must be prepared and submitted to the department which shall
4 include a description of all interim remedial measures {complete}
5 COMPLETED pursuant to the interim remedial measure work plan.
6 5. {Nothing in this section shall prohibit or limit the department
7 from terminating a brownfield site cleanup agreement at any time during
8 its implementation if the applicant subject to such brownfield site
9 cleanup agreement fails to comply substantially with such agreement`s
10 terms and conditions.
11 6.} Within six months of the determination that a site poses a signif-
12 icant threat, in the event that the applicant is a volunteer, the
13 department shall bring an enforcement action against any parties known
14 or suspected to be responsible for contamination (other than such volun-
15 teer) at or emanating from the site according to applicable principles
16 of statutory or common law liability. If such action cannot be brought,
17 or does not result in the initiation of a remedial program by such party
18 or parties at such site, the department shall use best efforts to begin
19 a remedial program to perform the remediation of off-site contamination
20 at such site within one year of the completion of such enforcement
21 action or the completion of the volunteer`s ON-SITE remedial program,
22 whichever is later. The state shall use moneys from the hazardous waste
23 remedial fund established pursuant to section ninety-seven-b of the
24 state finance law, AND/OR FROM THE NEW YORK ENVIRONMENTAL PROTECTION AND
25 SPILL COMPENSATION FUND ESTABLISHED PURSUANT TO SECTION ONE HUNDRED
26 SEVENTY-NINE OF THE NAVIGATION LAW, AS APPROPRIATE, to undertake the
27 investigation and/or remediation of such contamination. The state`s
28 costs incurred relative to such off-site contamination shall be recover-
29 able BY THE STATE from the person or persons responsible.
30 S 6. Section 27-1413 of the environmental conservation law, as added
31 by section 1 of part A of chapter 1 of the laws of 2003, is amended to
32 read as follows:
33 S 27-1413. Alternatives analysis.
34 1. For sites proposed to be remediated under {track I} TRACK 1 pursu-
35 ant to section 27-1415 OF THIS TITLE, the applicant shall develop and
36 evaluate at least one remedial alternative.
37 2. For all other sites, the applicant shall develop and evaluate at
38 least two remedial alternatives, one of which would achieve a {track I}
39 TRACK 1 cleanup. The department shall have the discretion to require the
40 evaluation of additional alternatives at a site that has been determined
41 to pose a significant threat. The applicant shall submit the alterna-
42 tives analysis AS A PART OF THE REMEDIAL WORK PLAN to the department for
43 review, approval, modification or rejection.
44 3. UNLESS THE APPLICANT HAS ELECTED TO REMEDIATE THE SITE TO TRACK 1,
45 THE DEPARTMENT MAY REQUIRE THE APPLICANT, AS A CONDITION OF CONTINUING
46 UNDER THIS PROGRAM, TO DEVELOP AND EVALUATE A TRACK 2 CLEANUP PURSUANT
47 TO SECTION 27-1415 OF THIS TITLE FOR SUCH NON-SIGNIFICANT THREAT SITE
48 UPON DUE CONSIDERATION OF THE FOLLOWING FACTORS:
49 (A) THE DEGREE TO WHICH THE REMEDY SELECTION CRITERIA WOULD BE BETTER
50 SATISFIED BY A TRACK 2 CLEANUP;
51 (B) THE DEGREE OF IMPACT A TRACK 2 CLEANUP WOULD HAVE ON THE APPLI-
52 CANT`S ABILITY TO SUCCESSFULLY CLEANUP AND/OR REDEVELOP THE PROPERTY;
53 (C) THE BENEFIT TO THE ENVIRONMENT TO BE REALIZED BY THE EXPEDITIOUS
54 REMEDIATION OF THE PROPERTY; AND
55 (D) THE ECONOMIC BENEFIT TO THE STATE TO BE REALIZED BY THE EXPE-
56 DITIOUS REMEDIATION OF THE PROPERTY.
S. 7726 11 A. 11802
1 4. For sites that the department has determined constitute a signif-
2 icant threat, the department shall select the remedy from a department-
3 approved alternatives analysis PREPARED BY THE APPLICANT.
4 {4.} 5. For sites that the department has determined do not constitute
5 a significant threat, the applicant may select the remedy from a depart-
6 ment-approved alternatives analysis, which analysis shall contain at
7 least two remedial alternatives as set forth in subdivision two of this
8 section. Provided, however, that {the department may require the appli-
9 cant, as a condition of continuing under this program, to develop and
10 evaluate a Track II cleanup pursuant to section 27-1415 for such non-
11 significant threat site upon due consideration of the following factors:
12 (a) the degree to which the remedy selection criteria would be better
13 satisfied by a Track II cleanup; (b) the degree of impact a Track II
14 cleanup would have on the applicant`s ability to successfully cleanup
15 and/or redevelop the property; (c) the benefit to the environment to be
16 realized by the expeditious remediation of the property; and (d) the
17 economic benefit to the state to be realized by the expeditious remedi-
18 ation of the property. In those instances} where the department has
19 required the applicant to develop and evaluate a Track {II} 2 cleanup,
20 the department shall have the discretion to, as a condition of continu-
21 ing under this program, require the applicant to implement such remedy.
22 S 7. Subdivisions 1, 2, 3, 4, 5, 6, 7 and 9 of section 27-1415 of the
23 environmental conservation law, as added by section 1 of part A of chap-
24 ter 1 of the laws of 2003, are amended to read as follows:
25 1. {Remedies} REMEDIAL PROGRAMS. All {remedies} REMEDIAL PROGRAMS
26 shall be protective of public health and the environment including but
27 not limited to groundwater according to its classification pursuant to
28 section 17-0301 of this chapter; drinking water, surface water and air
29 (including indoor air); sensitive populations, including children; and
30 ecological resources, including fish and wildlife. In all cases, the
31 target risk of residual contamination at a site shall not exceed an
32 excess cancer risk of one in one million for carcinogenic end points and
33 a hazard index of one for non-cancer end points.
34 2. Investigation. (a) Remedial investigation. A remedial investigation
35 shall fully characterize the nature and extent of contamination at
36 and/or emanating from a brownfield site{, including contamination
37 emanating from such site}. Such investigation shall emphasize data
38 collection and sampling and monitoring, as necessary, and includes but
39 is not limited to: characterization of site geologic and hydrogeologic
40 conditions, including groundwater flow, contaminant movement, and the
41 response of the groundwater system to extraction; and assessment of the
42 existing and potential impact of groundwater contamination on private or
43 community water supply wells, surface water quality, air quality, and
44 indoor air quality.
45 (b) Qualitative exposure assessment. A qualitative exposure assessment
46 shall qualitatively determine the route, intensity, frequency, and dura-
47 tion of actual or potential exposures of humans, fish and wildlife to
48 contaminants. Such assessment must analyze the nature and size of the
49 population currently exposed or which may reasonably be expected to be
50 exposed to the contaminants that are present at or {migrating} EMANATING
51 from a site, and shall include a determination of the reasonably antic-
52 ipated future land use of the site and affected off-site areas and the
53 reasonably anticipated future groundwater use. A qualitative exposure
54 assessment consists of characterizing the exposure setting, identifying
55 current and reasonably foreseeable exposure pathways, and evaluating
56 contaminant fate and transport. Some off-site field investigation to
S. 7726 12 A. 11802
1 identify and sample any potential areas of contamination may be required
2 to support the exposure assessment.
3 3. Selection. The remedial program for a site shall be selected upon
4 due consideration of the following factors:
5 (a) Conformance to standards and criteria that are generally applica-
6 ble, consistently applied, and officially promulgated, that are either
7 directly applicable, or that are not directly applicable but are rele-
8 vant and appropriate, unless good cause exists why conformity should be
9 dispensed with, and with consideration being given to guidance deter-
10 mined, after the exercise of engineering judgment, to be applicable.
11 Such good cause exists if any of the following is present:
12 (i) the proposed action is only part of a complete program that will
13 conform to such standard or criterion upon completion; or
14 (ii) conformity to such standard or criterion will result in greater
15 risk to the public health or to the environment than alternatives; or
16 (iii) conformity to such standard or criterion is technically imprac-
17 ticable from an engineering perspective; or
18 (iv) the program will attain a level of performance that is equivalent
19 to that required by the standard or criterion through the use of another
20 method or approach.
21 (b) Overall protectiveness of the public health and the environment.
22 (c) Short-term effectiveness.
23 (d) Long-term effectiveness and permanence. A remedial program that
24 achieves a complete and permanent cleanup of the site is to be preferred
25 over a remedial program that does not do so.
26 (e) Reduction in toxicity, mobility and/or volume of contamination
27 with treatment. A remedial program that permanently and significantly
28 reduces the toxicity, mobility and/or volume of contamination is to be
29 preferred over a remedial program that does not do so. The following is
30 the hierarchy of the remedial technologies ranked from the most prefera-
31 ble to the least preferable: destruction, on-site or off-site;
32 separation/treatment, on-site or off-site; solidification/chemical fixa-
33 tion, on-site or off-site; control and isolation, on-site or off-site.
34 (f) Implementability.
35 (g) Cost effectiveness.
36 (h) Community acceptance.
37 (i) Land use. The current, intended, and reasonably anticipated future
38 land uses of the site and its surroundings shall be considered in the
39 selection of the remedy for soil remediation, provided the department
40 determines that there is reasonable certainty associated with such use.
41 {The reasonably anticipated future use of the site and its surroundings
42 shall be documented by the applicant and determined by the department,
43 taking into consideration factors including, but not limited to those
44 listed below.} If the use proposed for the site does not conform with
45 applicable zoning laws or maps or the reasonably anticipated future use
46 of the site determined by the department pursuant to this section, the
47 department shall disapprove such use. THE REASONABLY ANTICIPATED FUTURE
48 USE OF THE SITE AND ITS SURROUNDINGS SHALL BE DOCUMENTED BY THE APPLI-
49 CANT AND DETERMINED BY THE DEPARTMENT, TAKING INTO CONSIDERATION FACTORS
50 INCLUDING, BUT NOT LIMITED TO, THOSE LISTED BELOW:
51 {(j)} (I) Current use and historical and/or recent development
52 patterns.
53 {(k)} (II) Applicable zoning laws and maps.
54 {(l)} (III) Brownfield opportunity areas as designated pursuant to
55 section nine hundred seventy-r of the general municipal law.
S. 7726 13 A. 11802
1 {(m)} (IV) Applicable comprehensive community master plans, local
2 waterfront revitalization plans as provided for in article forty-two of
3 the executive law, or any other applicable land use plan formally
4 adopted by a municipality.
5 {(n)} (V) Proximity to real property currently used for residential
6 use, and to urban, commercial, industrial, agricultural, and recreation-
7 al areas.
8 {(o)} (VI) Any written and oral comments submitted by members of the
9 public on the {applicants} APPLICANT`S proposed use as part of citizen
10 participation activities performed by the applicant pursuant to this
11 title.
12 {(p)} (VII) Environmental justice concerns, which for purposes of this
13 title, include the extent to which the proposed use may reasonably be
14 expected to cause or increase a disproportionate burden on the community
15 in which the site is located, including low-income minority communities,
16 or to result in a disproportionate concentration of commercial or indus-
17 trial uses in what has historically been a mixed use or residential
18 community.
19 {(q)} (VIII) Federal or state land use designations.
20 {(r)} (IX) Population growth patterns and projections.
21 {(s)} (X) Accessibility to existing infrastructure.
22 {(t)} (XI) Proximity of the site to important cultural resources,
23 including federal or state historic or heritage sites or Native American
24 religious sites.
25 {(u)} (XII) Natural resources, including proximity of the site to
26 important federal, state or local natural resources, including water-
27 ways, wildlife refuges, wetlands, or critical habitats of endangered or
28 threatened species.
29 {(v)} (XIII) Potential vulnerability of groundwater to contamination
30 that might {migrate} EMANATE from the site, including proximity to well-
31 head protection and groundwater recharge areas and other areas identi-
32 fied by the department and the state`s comprehensive groundwater remedi-
33 ation and protection program established pursuant to title thirty-one of
34 article fifteen of this chapter.
35 {(w)} (XIV) Proximity to floodplains.
36 {(x)} (XV) Geography and geology.
37 {(y)} (XVI) Current institutional controls applicable to the site.
38 4. Tracks. The commissioner, in consultation with the commissioner of
39 health, shall propose within twelve months and thereafter timely promul-
40 gate regulations which create a multi-track approach for the remediation
41 of contamination, AND, COMMENCING ON THE EFFECTIVE DATE OF SUCH REGU-
42 LATIONS, UTILIZE SUCH MULTI-TRACK APPROACH. Such regulations shall
43 provide that groundwater use in Tracks {1} 2, 3 or 4 can be either
44 restricted or unrestricted. The tracks shall be as follows:
45 Track 1: The remedial program shall achieve a cleanup level that will
46 allow the site to be used for any purpose without restriction and with-
47 out reliance on the long-term employment of institutional or engineering
48 controls, and shall achieve contaminant-specific remedial action objec-
49 tives for soil which {conforms} CONFORM with those contained in the
50 generic table of contaminant-specific remedial action objectives for
51 unrestricted use developed pursuant to subdivision six of this section.
52 Provided, however, that volunteers whose proposed remedial program for
53 the remediation of groundwater may require the long-term employment of
54 institutional or engineering controls after the bulk reduction of
55 groundwater contamination to asymptotic levels has been achieved but
S. 7726 14 A. 11802
1 whose program would otherwise conform with the requirements necessary to
2 qualify for Track 1, shall qualify for Track 1.
3 Track 2: The remedial program may include restrictions on the use of
4 the site or reliance on the long-term employment of engineering and/or
5 institutional controls, but shall achieve contaminant-specific remedial
6 action objectives for soil which conform with those contained in one of
7 the generic tables developed pursuant to subdivision six of this section
8 without the use of institutional or engineering controls to reach such
9 objectives.
10 Track 3: The remedial program shall achieve contaminant-specific reme-
11 dial action objectives for soil which conform with the criteria used to
12 develop the generic tables for such objectives developed pursuant to
13 subdivision six of this section but may use site specific data to deter-
14 mine such objectives.
15 Track 4: The remedial program shall achieve a cleanup level that will
16 be protective for the site`s current, intended or reasonably anticipated
17 residential, commercial, or industrial use with restrictions and with
18 reliance on the long-term employment of institutional or engineering
19 controls to achieve such level. The regulations shall include a
20 provision requiring that a cleanup level which poses a risk in excee-
21 dance of an excess cancer risk of one in one million for carcinogenic
22 end points and a hazard index of one for non-cancer end points for a
23 specific contaminant at a specific site may be approved by the depart-
24 ment without requiring the use of institutional or engineering controls
25 to eliminate exposure only upon a site specific finding by the commis-
26 sioner, in consultation with the commissioner of health, that such level
27 shall be protective of public health and environment. Such finding shall
28 be included in the draft remedial work plan for the site and fully
29 described in the notice and fact sheet provided {in} FOR such work plan.
30 5. Source removal and control measures. {(a)} The following is the
31 hierarchy of source removal and control measures ranked from most pref-
32 erable to least preferable. For all applicants, the remedial program
33 selected pursuant to this title shall address sources in the following
34 manner:
35 {(i)} (A) Removal and/or treatment. All free product, concentrated
36 solid or semi-solid {hazardous substances} CONTAMINANTS, dense non-aque-
37 ous phase liquid, light non-aqueous phase liquid and/or grossly contam-
38 inated soil shall be removed and/or treated; provided however if the
39 removal and/or treatment of all such contamination is not feasible, such
40 contamination shall be removed or treated to the greatest extent feasi-
41 ble.
42 {(ii)} (B) Containment. Any source remaining following removal and/or
43 treatment pursuant to this {paragraph} SUBDIVISION shall be contained;
44 provided however if full containment is not feasible, such source shall
45 be contained to the greatest extent feasible.
46 {(iii)} (C) Elimination of exposure. Exposure to any source remaining
47 following removal, treatment and/or containment pursuant to this {para-
48 graph} SUBDIVISION shall be eliminated through additional measures,
49 including but not limited to, as applicable, the timely and sustained
50 provision of alternative water supplies and the elimination of volatili-
51 zation into buildings; provided however if such elimination is not
52 feasible such exposure shall be eliminated to the greatest extent feasi-
53 ble.
54 {(iv)} (D) Treatment of source at the point of exposure. Treatment of
55 source at the point of exposure, including but not limited to, as appli-
S. 7726 15 A. 11802
1 cable, wellhead treatment or the management of volatile contamination
2 within buildings, shall be considered as a measure of last resort.
3 {(b)} 5-A. Plume stabilization shall be evaluated for all remedies and
4 the further migration of contamination from the site shall be prevented
5 to the extent feasible, including any actions that would be necessary to
6 maintain and monitor such stabilization. {Provided however, that at a
7 site being remediated by} IN ADDITION, a participant{,} SHALL PREVENT
8 the further migration of plumes {shall be prevented} to the extent
9 feasible.
10 6. Soil cleanup objectives. (a) The regulations shall include three
11 generic tables of contaminant-specific remedial action objectives for
12 soil based on {a site`s} current, intended or reasonably anticipated
13 future use, including: (i) unrestricted, (ii) commercial and (iii)
14 industrial.
15 (b) Such objectives shall be protective of public health and the envi-
16 ronment pursuant to subdivision one of this section, and the level of
17 risk associated with remedial action objectives for individual contam-
18 inants listed in the table or developed by the applicant pursuant to
19 Track {three} 3 shall not exceed an excess cancer risk of one in one
20 million for carcinogenic end points and a hazard index of one for non-
21 cancer end points; provided, however, that if the background soil
22 concentration for a contaminant in rural soils in New York state exceeds
23 such risk level, the {contaminant specific} CONTAMINANT-SPECIFIC action
24 objective for such contaminant may be established equal to such back-
25 ground concentration. In developing such tables, the department shall
26 consider:
27 (i) standards, criteria and guidance which are found by the department
28 to be applicable or relevant and appropriate pursuant to paragraph (a)
29 of subdivision three of this section;
30 (ii) the behaviors of children;
31 (iii) the protection of adjacent residential uses;
32 (iv) contaminants which act through similar toxicological mechanisms
33 or have the potential for additive and/or synergistic effects, and expo-
34 sure to the same contaminant or group of contaminants from other SOURCES
35 AND routes; and
36 (v) the feasibility of achieving more stringent remedial action objec-
37 tives, based on experience under the existing state remedial programs,
38 particularly where toxicological, exposure, or other pertinent data are
39 inadequate or nonexistent for a specific contaminant.
40 (c) The department shall update such tables of contaminant-specific
41 remedial action objectives every five years. The initial tables shall be
42 published in draft form for public comment with a public comment period
43 of one hundred twenty days, and be the subject of at least three public
44 hearings throughout the state. Subsequent tables shall be the subject of
45 at least one public hearing and a public comment period of at least
46 ninety days.
47 (d) For Track {IV} 4, exposed surface soils shall {be remediated to}
48 NOT EXCEED the generic contaminant-specific remedial action objectives
49 for soil developed for unrestricted, commercial, or industrial use
50 pursuant to this subdivision which conforms with the site`s current
51 intended, or reasonably anticipated future use. {The depth of such reme-
52 diation} FOR PURPOSES OF THIS SECTION "EXPOSED SURFACE SOILS" shall {be}
53 MEAN two feet for sites used for residential use and one foot for sites
54 used for commercial or industrial use.
55 7. Institutional and engineering controls.
S. 7726 16 A. 11802
1 (a) The department may approve a proposed remedial work plan that
2 includes institutional controls and/or engineering controls as compo-
3 nents of a proposed remedial program provided the remedial work plan
4 includes:
5 (i) a complete description of any proposed use restrictions and/or
6 institutional controls and the mechanisms that will be used to imple-
7 ment, maintain, monitor, and enforce such restrictions and controls,
8 both by the applicant and by {any} state and local government;
9 (ii) a complete description of any proposed engineering controls and
10 any operation, maintenance, and monitoring requirements, including the
11 mechanisms that will be used to continually implement, maintain, moni-
12 tor, and enforce such controls and requirements, both by the applicant
13 and by {any} state and local government;
14 (v) where required by the department, financial assurance to ensure
15 the {long term} LONG-TERM implementation, maintenance, monitoring, and
16 enforcement of any such controls; and
17 (vi) A REQUIREMENT THAT any engineering control must be used in
18 conjunction with institutional controls to ensure the continued integri-
19 ty of such engineering control.
20 (b) The owner of a brownfield site at which institutional or engineer-
21 ing controls are employed pursuant to this title shall, unless otherwise
22 provided in writing by the department, annually submit to the department
23 a written statement by an individual licensed or otherwise authorized in
24 accordance with article one hundred forty-five of the education law to
25 practice the profession of engineering, or by such other expert as the
26 department may find acceptable certifying under penalty of perjury that
27 the institutional controls and/or engineering controls employed at such
28 site are unchanged from the previous certification and that nothing has
29 occurred that would impair the ability of such control to protect the
30 public health and environment, or constitute a violation or failure to
31 comply with any operation and maintenance plan for such controls and
32 giving access to THE DEPARTMENT TO such real property to evaluate
33 continued maintenance of such controls.
34 (c) At non-significant threat sites where contaminants in groundwater
35 at the site boundary contravene drinking water standards, such certif-
36 ication shall also certify that no new information has come to the
37 owner`s attention, including groundwater monitoring data from wells
38 located at the site boundary, if any, to indicate that the assumptions
39 made in the qualitative exposure assessment of offsite contamination are
40 no longer valid. Every five years the owner at such sites shall certify
41 that the assumptions made in the qualitative exposure assessment remain
42 valid. The requirement to provide such certifications may be terminated
43 by a written determination by the commissioner in consultation with the
44 commissioner of health, after notice to the PARTIES ON THE BROWNFIELD
45 site contact list and a public comment period of thirty days.
46 9. Use of INNOVATIVE technologies. The commissioner, in consultation
47 with the commissioner of health, shall consider and encourage the use of
48 innovative technologies which will meet the remedial objectives of this
49 title. Consistent with the provisions of section twelve hundred eighty-
50 five-f of the public authorities law, the commissioner, in consultation
51 with the president of the environmental facilities corporation, shall
52 encourage the development of such technologies.
53 S 8. Paragraphs (b), (d), (e), (f), (g) and (h) of subdivision 3 and
54 paragraph (a) of subdivision 4 of section 27-1417 of the environmental
55 conservation law, as added by section 1 of part A of chapter 1 of the
56 laws of 2003, are amended to read as follows:
S. 7726 17 A. 11802
1 (b) The {applicant} PERSON SUBMITTING A REQUEST FOR PARTICIPATION, in
2 cooperation with the department, shall provide a newspaper notice of
3 {their} THE PERSON`S request to participate in the program. The {appli-
4 cant} PERSON, in cooperation with the department, shall also provide
5 notice thereof to the brownfield site contact list. Such notice shall
6 provide for a thirty day public comment period following publication {of
7 the notice required under this section}.
8 (d) Before the department approves a proposed remedial investigation
9 report, the {applicant} DEPARTMENT, in {cooperation} CONSULTATION with
10 the {department} APPLICANT, shall notify individuals on the brownfield
11 site contact list. Such notice shall include a fact sheet describing
12 such report.
13 (e) UPON THE DEPARTMENT`S DETERMINATION OF SIGNIFICANT THREAT PURSUANT
14 TO SECTION 27-1411 OF THIS TITLE, THE DEPARTMENT MUST PROVIDE NOTICE TO
15 INDIVIDUALS ON THE BROWNFIELD SITE CONTACT LIST. SUCH NOTICE SHALL
16 INCLUDE A FACT SHEET DESCRIBING THE BASIS OF THE DEPARTMENT`S DETERMI-
17 NATION.
18 (F) Before the department finalizes a proposed remedial work plan or
19 makes a determination that site conditions meet the requirements of this
20 title without the necessity for remediation pursuant to section 27-1411
21 of this title, the department, IN CONSULTATION WITH THE APPLICANT, must
22 notify individuals on the brownfield site contact list. Such notice
23 shall include a fact sheet describing such plan and provide for a
24 forty-five day public comment period. The commissioner shall hold a
25 public meeting if requested by the affected community and the commis-
26 sioner has found that the site constitutes a significant threat to the
27 public health or the environment. Further, the affected community may
28 request a public meeting at sites that do not constitute a significant
29 threat. (1) To the extent that the department has determined that site
30 conditions do not pose a significant threat and the site is being
31 addressed by a volunteer, the notice shall state that the department has
32 determined that no remediation is required for the off-site areas and
33 that the department`s determination of a significant threat is subject
34 to this {thirty} FORTY-FIVE day comment period. (2) If the remedial work
35 plan includes a Track {II} 2, Track {III} 3 or Track {IV} 4 remedy at a
36 non-significant threat site, such comment period shall apply both to the
37 approval of the alternatives analysis by the department and the proposed
38 remedy selected by the applicant.
39 {(f)} (G) Before the applicant commences construction at the brown-
40 field site, the APPLICANT, IN COOPERATION WITH THE department, shall
41 provide notice to the individuals on the brownfield site contact list.
42 {(g)} (H) Before the department approves a proposed final engineering
43 report, the department, IN CONSULTATION WITH THE APPLICANT, must notify
44 individuals on such contact list. Such notice shall include a fact sheet
45 describing {such} THE BROWNFIELD SITE report, including any proposed
46 institutional or engineering controls.
47 {(h)} (I) Within ten days of the issuance of a certificate of
48 completion at a site which will utilize institutional or engineering
49 controls, the applicant, IN COOPERATION WITH THE DEPARTMENT, shall
50 provide notice to the brownfield site contact list. Such notice shall
51 include a fact sheet describing such controls.
52 (a) Within the limits of appropriations made available pursuant to
53 {section 27-1419 of this title} PARAGRAPH J OF SUBDIVISION THREE OF
54 SECTION NINETY-SEVEN-B OF THE STATE FINANCE LAW, the commissioner is
55 authorized to provide grants to any not-for-profit corporation exempt
56 from taxation under SECTION 501(c)(3) of the internal revenue code at
S. 7726 18 A. 11802
1 any site determined to pose a significant threat by the department and
2 which may be affected by a brownfield site remedial program. To qualify
3 to receive such assistance, a community group must demonstrate that its
4 membership represents the interests of the community affected by such
5 site. Furthermore, the commissioner is authorized to direct any appli-
6 cant who is a responsible party, as defined in section 27-1313 of this
7 article, to provide such grants. Such grants shall be known as technical
8 assistance grants and may be used to obtain technical assistance in
9 interpreting information with regard to the nature of the hazard posed
10 by {hazardous substances} CONTAMINATION located OR EMANATING FROM A
11 BROWNFIELD SITE OR SITES AND THE DEVELOPMENT AND IMPLEMENTATION OF A
12 BROWNFIELD SITE REMEDIAL PROGRAM OR PROGRAMS. SUCH GRANTS MAY ALSO BE
13 USED TO HIRE HEALTH AND SAFETY EXPERTS TO ADVISE AFFECTED RESIDENTS ON
14 ANY HEALTH ASSESSMENTS AND FOR THE EDUCATION OF INTERESTED AFFECTED
15 COMMUNITY MEMBERS TO ENABLE THEM TO MORE EFFECTIVELY PARTICIPATE IN THE
16 REMEDY SELECTION PROCESS. GRANTS AWARDED UNDER THIS SECTION MAY NOT BE
17 USED FOR THE PURPOSES OF COLLECTING FIELD SAMPLING DATA, POLITICAL
18 ACTIVITY OR LOBBYING LEGISLATIVE BODIES.
19 S 9. Paragraph (d) of subdivision 2 and subdivisions 3, 4, 5 and 7 of
20 section 27-1419 of the environmental conservation law, as added by
21 section 1 of part A of chapter 1 of the laws of 2003, are amended and a
22 new subdivision 8 is added to read as follows:
23 (d) a complete description of any institutional AND/OR ENGINEERING
24 controls employed at the site, including the mechanisms that will be
25 used to continually implement, maintain, monitor, and enforce such
26 controls both by the applicant, {their} THE APPLICANT`S successors and
27 assigns, and by state or local government;
28 3. Upon receipt of the final engineering report, the department shall
29 review such report and the data submitted pursuant to the brownfield
30 site cleanup agreement as well as any other relevant information regard-
31 ing the brownfield site. Upon satisfaction of the commissioner that the
32 remediation requirements set forth in this title have been or will be
33 achieved in accordance with the timeframes, if any, established in the
34 REMEDIAL WORK plan, the commissioner shall issue a written certificate
35 of completion, such certificate shall include such information as deter-
36 mined by the department of taxation and finance, including but not
37 limited to the brownfield site boundaries included in the final engi-
38 neering report, and the date of the brownfield site agreement pursuant
39 to section 27-1409 of this title.
40 4. The commissioner shall not issue a certificate of completion to any
41 applicant who has been identified by the administrator of the New York
42 environmental protection and spill compensation fund pursuant to subdi-
43 vision four of section 27-1407 of this title as a person responsible for
44 the cleanup and removal costs for the discharge of petroleum at or
45 emanating from the brownfield site for which the applicant is seeking a
46 certificate of completion {and} WHERE the applicant has not resolved any
47 outstanding claim at such site pursuant to article twelve of the naviga-
48 tion law.
49 5. A certificate of completion issued pursuant to this section may be
50 TRANSFERRED TO THE APPLICANT`S SUCCESSORS OR ASSIGNS UPON TRANSFER OR
51 SALE OF THE BROWNFIELD SITE. FURTHER, A CERTIFICATE OF COMPLETION MAY BE
52 modified or revoked by the commissioner upon a finding that:
53 (a) {The} EITHER THE applicant, OR THE APPLICANT`S SUCCESSORS OR
54 ASSIGNS, has failed to comply with the terms and conditions of the
55 brownfield site cleanup agreement;
S. 7726 19 A. 11802
1 (b) The applicant made a misrepresentation of a material fact tending
2 to demonstrate that it was qualified as a volunteer {or};
3 (C) EITHER THE APPLICANT, OR THE APPLICANT`S SUCCESSORS OR ASSIGNS
4 MADE A MISREPRESENTATION OF A MATERIAL FACT TENDING TO DEMONSTRATE that
5 the cleanup levels identified in the brownfield site cleanup agreement
6 were reached; or
7 {(c)} (D) There is good cause for such modification or revocation.
8 7. {However, nothing} NOTHING herein shall be construed as abrogating
9 any powers or duties of the administrator of the New York environmental
10 protection and spill compensation fund as provided in article twelve of
11 the navigation law.
12 8. A NOTICE OF SUCH CERTIFICATION OF COMPLETION SHALL BE RECORDED AND
13 INDEXED IN THE OFFICE OF THE RECORDING OFFICER FOR THE COUNTY OR COUN-
14 TIES WHERE SUCH BROWNFIELD SITE IS LOCATED IN THE MANNER PRESCRIBED BY
15 ARTICLE NINE OF THE REAL PROPERTY LAW WITHIN THIRTY DAYS OF THE ISSUANCE
16 OF THE CERTIFICATE OF COMPLETION IF THE APPLICANT IS AN OWNER OR WITHIN
17 THIRTY DAYS OF ACQUIRING TITLE TO THE BROWNFIELD SITE IF THE PERSON IS A
18 PROSPECTIVE PURCHASER.
19 S 10. Subdivisions 1, 2, 3, 5 and 6 of section 27-1421 of the environ-
20 mental conservation law, as added by section 1 of part A of chapter 1 of
21 the laws of 2003, are amended to read as follows:
22 1. Notwithstanding any other provision of law and except as provided
23 in subdivision two of this section, after the department has issued a
24 certificate of completion for a brownfield site, the applicant shall not
25 be liable to the state upon any statutory or common law cause of action,
26 arising out of the presence of any {hazardous waste} CONTAMINATION in,
27 on or emanating from the brownfield site that was the subject of such
28 certificate at any time before the effective date of a brownfield site
29 cleanup agreement entered into pursuant to this title, except that a
30 participant shall not receive a release for natural resource damages
31 that may be available under {federal} law.
32 2. (a) The state nonetheless shall reserve all of its rights concern-
33 ing, and such liability limitation shall not extend to, any further
34 investigation and/or remediation the department deems necessary due to:
35 (i) environmental contamination at, on, under, or {migrating} EMANAT-
36 ING from the brownfield site if, in light of such conditions, the site
37 is no longer protective of public health or the environment; or
38 (ii) non-compliance with the terms of the agreement, the remedial work
39 plan and the certificate of completion required by this title; or
40 (iii) fraud committed by the applicant in its application for or
41 participation in this program; or
42 (iv) a WRITTEN finding by the department that a change in an environ-
43 mental standard, factor, or {criteria} CRITERION upon which the remedial
44 work plan or no further action determination was based, {which} renders
45 the brownfield site remedial program implemented at the site no longer
46 protective of public health or the environment; or
47 (v) a change in the brownfield site`s use subsequent to the depart-
48 ment`s issuance of the certificate of completion {or no action determi-
49 nation,} unless additional remediation is undertaken which shall meet
50 the standard for protection of {the} public health and THE environment
51 that applies under this title; or
52 (vi) following the certificate of completion the failure of an appli-
53 cant to make substantial progress toward completion of its proposed
54 development of the site within {three} FIVE years, or the applicant
55 engages in unreasonable delay and fails to complete its proposed devel-
56 opment of the site within a reasonable time, considering the size, scope
S. 7726 20 A. 11802
1 and nature of the development. PROVIDED HOWEVER, THAT THIS SUBPARAGRAPH
2 SHALL NOT APPLY IN THE CASE WHERE A TRACK 1 - UNRESTRICTED USE AS
3 PROVIDED IN SECTION 27-1415 OF THIS TITLE IS ACHIEVED.
4 (b) In the case of a volunteer, subparagraph (v) of paragraph (a) of
5 this subdivision shall not apply if {track} TRACK 1-unrestricted use as
6 provided in section 27-1415 of this title is achieved.
7 3. The {covenant not to sue issued} LIABILITY LIMITATION PROVIDED
8 pursuant to this section shall {extend} RUN WITH THE LAND, EXTENDING to
9 the applicant`s successors or assigns through acquisition of title to
10 the brownfield site {to which the covenant applies} and to a person who
11 develops or otherwise occupies the brownfield site; provided that such
12 persons act with due care and in good faith to adhere to the require-
13 ments of the brownfield site cleanup agreement and certificate of
14 completion. However, such {covenant} LIABILITY LIMITATION does not
15 extend, and cannot be transferred, to a person who is responsible for
16 the disposal {on such site of hazardous waste} or the discharge of
17 {petroleum} CONTAMINANTS ON SUCH SITE according to applicable principles
18 of statutory or common law liability as of the effective date of the
19 certification of completion issued pursuant to this title, unless that
20 person was party to the brownfield site cleanup agreement FOR THE BROWN-
21 FIELD SITE pursuant to this article {for the brownfield site on which
22 such covenant was based. A notice of such covenant shall be recorded and
23 indexed as a declaration of covenant in the office of the recording
24 officer for the county or counties where such brownfield site is located
25 in the manner prescribed by article nine of the real property law within
26 thirty days of signing the certificate of completion if the applicant is
27 an owner or within thirty days of acquiring title to the brownfield site
28 if the person is a prospective purchaser}.
29 5. Nothing in this section shall be construed to affect either the
30 liability of any person with respect to any costs, damages, or investi-
31 gative or remedial activities that are not included in the {voluntary}
32 BROWNFIELD SITE CLEANUP agreement or remedial investigation work plan
33 and/or remedial work plan for the brownfield site or the {department`s}
34 STATE`S authority to maintain an action or proceeding against any person
35 who is not subject to the {voluntary} BROWNFIELD SITE CLEANUP agreement
36 {or remedial work plan}.
37 6. A person {who has settled such person`s liability to the depart-
38 ment} WHO HAS RECEIVED A LIABILITY LIMITATION under this subdivision
39 shall not be liable for claims for contribution regarding matters
40 addressed in the {order} BROWNFIELD SITE CLEANUP AGREEMENT except {that}
41 NOTHING IN THIS SECTION SHALL EFFECT THE LIABILITY OF the person respon-
42 sible {will not be released from liability} for such person`s own acts
43 or omissions causing wrongful death or personal injury. Such {settle-
44 ment} LIABILITY LIMITATION does not discharge any of the persons respon-
45 sible under law to investigate and remediate the {hazardous waste unless
46 its terms so provide} CONTAMINATION, but it reduces the potential
47 liability of the others by the amount of the {settlement} VALUE ASSOCI-
48 ATED WITH THE REMEDIATION ACTIVITIES DESCRIBED IN THE FINAL ENGINEERING
49 REPORT.
50 S 11. Subdivision 1 of section 27-1423 of the environmental conserva-
51 tion law, as added by section 1 of part A of chapter 1 of the laws of
52 2003, is amended to read as follows:
53 1. Pursuant to timetables contained in the brownfield SITE cleanup
54 {site} agreement, the volunteer shall pay all state costs incurred in
55 negotiating and overseeing implementation of such agreement, PROVIDED,
56 HOWEVER, AS SET FORTH IN A BROWNFIELD SITE CLEANUP AGREEMENT PURSUANT TO
S. 7726 21 A. 11802
1 THIS TITLE, THAT SUCH COSTS MAY BE BASED UPON A REASONABLE FLAT-FEE FOR
2 OVERSIGHT, WHICH SHALL REFLECT THE PROJECTED FUTURE STATE COSTS TO BE
3 INCURRED IN NEGOTIATING AND OVERSEEING IMPLEMENTATION OF SUCH AGREEMENT.
4 In addition, a participant shall pay all costs incurred by the state up
5 to the effective date of such agreement{, provided, however, that such
6 costs may be based upon a negotiated flat-fee oversight amount as set
7 forth in a brownfield site cleanup agreement pursuant to this title}.
8 S 12. Subdivision 3 of section 27-1425 of the environmental conserva-
9 tion law, as added by section 1 of part A of chapter 1 of the laws of
10 2003, is amended to read as follows:
11 3. For the purposes of this section:
12 (a) "change of use" means the transfer of title to all or part of such
13 brownfield site, the erection of any structure on such site, {and} the
14 creation of a park or other public or private recreational facility on
15 such site, or any activity that is likely to disrupt or expose {hazard-
16 ous waste or petroleum} CONTAMINATION or to increase direct human expo-
17 sure; or any other conduct that will or may tend to significantly inter-
18 fere with an ongoing or completed remedial program at such site AND THE
19 CONTINUED ABILITY TO IMPLEMENT THE ENGINEERING AND INSTITUTIONAL
20 CONTROLS ASSOCIATED WITH SUCH SITE.
21 (b) "complete notice" means a notice that adequately apprises the
22 department of the contemplated {physical alteration} CHANGE OF USE of
23 such site and how such {alteration} CHANGE OF USE may affect the site`s
24 proposed, ongoing, or completed remedial program{, or of the proposed
25 new owner`s ability to implement the engineering and institutional
26 controls associated with such site}.
27 S 13. Section 27-1429 of the environmental conservation law, as added
28 by section 1 of part A of chapter 1 of the laws of 2003, is amended to
29 read as follows:
30 S 27-1429. Permit waivers.
31 The department, by and through the commissioner, shall be authorized
32 to exempt a person from the requirement to obtain any state or local
33 permit or other authorization for any activity needed to implement a
34 program for the investigation and/or remediation of {hazardous waste
35 and/or petroleum} CONTAMINATION; provided that the activity is conducted
36 in a manner which satisfies all substantive technical requirements
37 applicable to like activity conducted pursuant to a permit.
38 S 14. Section 27-1431 of the environmental conservation law, as added
39 by section 1 of part A of chapter 1 of the laws of 2003, is amended to
40 read as follows:
41 S 27-1431. Access to sites.
42 The department, by and through the commissioner, shall be authorized
43 to:
44 1. Require that any person permit a duly designated officer or employ-
45 ee of the department or of a municipal corporation, or any agent,
46 consultant, or contractor of the department or of a municipal corpo-
47 ration, or any other person, including an employee, agent, consultant,
48 or contractor of {a responsible person} AN APPLICANT acting at the
49 direction of the department, so authorized in writing by the commission-
50 er, to enter upon any property which has or may have been the site of
51 {hazardous waste and/or petroleum} THE disposal OR DISCHARGE OF CONTAM-
52 INANTS, and/or areas near such site, for the following purposes:
53 a. to inspect and take samples of such {hazardous waste and/or petro-
54 leum} CONTAMINANTS and/or environmental media, utilizing such sampling
55 methods as may be necessary or appropriate, including without limitation
56 soil borings and monitoring wells; provided, that no sampling methods
S. 7726 22 A. 11802
1 involving the substantial disturbance of the ground surface of such
2 property may be utilized until after a minimum of ten days` written
3 notice thereof shall have been provided to the owner and operator and
4 occupant of such property, if identifiable by reasonable efforts, unless
5 the commissioner makes a written determination that such notice will not
6 allow the protection of the public health or the environment, in which
7 case two days` written notice shall be sufficient;
8 b. to implement the investigation and/or remediation of {hazardous
9 waste and/or petroleum} CONTAMINATION and/or environmental media;
10 provided that no such work may be undertaken until after a minimum of
11 ten days` written notice thereof shall have been provided to the owner
12 and operator and occupant of such property, if identifiable by reason-
13 able efforts, unless the commissioner makes a written determination that
14 such notice will not allow the protection of the public health or the
15 environment, in which case two days` written notice shall be sufficient.
16 (I) IF ANY DESIGNATED OFFICER OR EMPLOYEE OF THE DEPARTMENT OR OF A
17 MUNICIPAL CORPORATION, OR ANY AGENT, CONSULTANT, OR CONTRACTOR OF THE
18 DEPARTMENT OR OF A MUNICIPAL CORPORATION, OR ANY OTHER PERSON, INCLUDING
19 AN EMPLOYEE, AGENT, CONSULTANT OR CONTRACTOR OF A RESPONSIBLE PERSON
20 ACTING AT THE DIRECTION OF THE DEPARTMENT OBTAINS ANY SAMPLES PRIOR TO
21 LEAVING THE PREMISES THEY SHALL GIVE TO THE OWNER A RECEIPT DESCRIBING
22 THE SAMPLE OBTAINED AND, IF REQUESTED, A PORTION OF SUCH SAMPLE EQUAL IN
23 VOLUME OR WEIGHT TO THE PORTION RETAINED. IF ANY ANALYSIS IS MADE OF
24 SUCH SAMPLES, A COPY OF THE RESULTS OF SUCH ANALYSIS SHALL BE FURNISHED
25 PROMPTLY TO THE OWNER. UPON THE COMPLETION OF ALL SAMPLING OR SUBSEQUENT
26 REMEDIATION ACTIVITIES, THE DEPARTMENT SHALL REMOVE, OR CAUSE TO BE
27 REMOVED, ALL EQUIPMENT AND WELL MACHINERY AND RETURN THE GROUND SURFACE
28 OF THE PROPERTY TO ITS CONDITION PRIOR TO SUCH SAMPLING UNLESS THE
29 DEPARTMENT AND THE OWNER OF THE PROPERTY SHALL AGREE OTHERWISE.
30 (II) THE EXPENSE OF ANY SUCH SAMPLING AND ANALYSIS SHALL BE PAID BY
31 THE DEPARTMENT, BUT MAY BE RECOVERED FROM ANY RESPONSIBLE PERSON IN ANY
32 ACTION OR PROCEEDING BROUGHT PURSUANT TO THIS TITLE OR COMMON LAW.
33 2. a. Require that any person furnish to the department, in a form and
34 manner as prescribed by the department, information relating to the
35 current and past {hazardous waste and/or petroleum} CONTAMINANT gener-
36 ation, treatment, storage, disposal, and/or transportation activities of
37 such person or any other person now or formerly under the control of
38 such person; in the event such person cannot comply therewith, in whole
39 or in part, such person shall furnish to the department information
40 describing all efforts made by such person to comply therewith; any
41 information so furnished to the department shall be considered a "writ-
42 ten instrument" as defined in subdivision three of section 175.00 of the
43 penal law;
44 b. Require that any person permit a duly designated officer or employ-
45 ee of the department at all reasonable times to have access to and to
46 copy all books, papers, documents, and records relating to the current
47 and past {hazardous waste and/or petroleum} CONTAMINANT generation,
48 treatment, storage, disposal, and/or transportation activities of such
49 person or any person now or formerly under the control of such person;
50 c. Require, by subpoena issued in the name of the department, the
51 production of books, papers, documents, and other records, and the
52 rendition of testimony by deposition under oath of any person relating
53 to the current and past {hazardous waste and/or petroleum} CONTAMINANT
54 generation, treatment, storage, disposal, and/or transportation activ-
55 ities of such person or any person now or formerly under the control of
56 such person; such subpoenas and depositions shall be regulated by the
S. 7726 23 A. 11802
1 civil practice law and rules; the commissioner may invoke the powers of
2 the supreme court of the state of New York or any other court of compe-
3 tent jurisdiction to compel compliance therewith.
4 S 15. Subdivision 2 of section 3-0315 of the environmental conserva-
5 tion law, as added by section 1 of part C of chapter 1 of the laws of
6 2003, is amended to read as follows:
7 2. The department shall make reasonable efforts to include additional
8 data, including data from well logs currently required to be filed with
9 the department pursuant to section {15-1527} 15-1525 of this chapter.
10 S 16. This act shall take effect immediately.
11 PART B
12 Section 1. Subdivisions 2 and 8 of section 71-3605 of the environ-
13 mental conservation law, as added by section 2 of part A of chapter 1 of
14 the laws of 2003, are amended to read as follows:
15 2. The title owners shall furnish to the department abstracts of title
16 and other documents sufficient to enable the department to determine
17 that the easements shall be enforceable. An environmental easement shall
18 be in a form {provided by regulation of} PRESCRIBED BY the department.
19 AN ENVIRONMENTAL EASEMENT SHALL DESCRIBE THE PROPERTY ENCUMBERED BY THE
20 EASEMENT BY ADEQUATE LEGAL DESCRIPTION OR BY REFERENCE TO A RECORDED MAP
21 SHOWING ITS BOUNDARIES AND BEARING THE SEAL AND SIGNATURE OF A LICENSED
22 LAND SURVEYOR OR, IF THE EASEMENT ENCUMBERS THE ENTIRE PROPERTY
23 DESCRIBED IN A DEED OF RECORD, THE EASEMENT MAY INCORPORATE BY REFERENCE
24 THE DESCRIPTION IN SUCH DEED, OTHERWISE IT SHALL REFER TO THE LIBER AND
25 PAGE OF THE DEED OR DEEDS OF THE RECORD OWNER OR OWNERS OF THE REAL
26 PROPERTY BURDENED BY THE ENVIRONMENTAL EASEMENT. An environmental ease-
27 ment shall:
28 (a) name the state, acting through the department, as grantee;
29 (b) contain a complete description of any use restrictions and/or
30 engineering control to which the real property is subject;
31 (c) run with the land, binding the owner of the land and the owner`s
32 successors and assigns;
33 (d) include an acknowledgment by the commissioner of acceptance of the
34 easement by the department; and
35 (e) include an agreement to incorporate, either in full or by refer-
36 ence, the environmental easement in any leases, licenses, or other
37 instruments granting a right to use the property that may be affected by
38 such easement.
39 8. An environmental easement shall be duly recorded and indexed as
40 such in the office of the recording officer for the county or counties
41 where the land is situate in the manner prescribed by article nine of
42 the real property law. {The easement shall describe the property encum-
43 bered by the easement by adequate legal description or by reference to a
44 recorded map showing its boundaries and bearing the seal and signature
45 of a licensed land surveyor or, if the easement encumbers the entire
46 property described in a deed of record, the easement may incorporate by
47 reference the description in such deed, otherwise it shall refer to the
48 liber and page of the deed or deeds of the record owner or owners of the
49 real property burdened by the environmental easement.} The property deed
50 and all subsequent instruments of conveyance relating to the property
51 encumbered by the easement shall reference, by book and page number, the
52 environmental easement. Such deed and instrument shall also specify that
53 the eligible property is subject to the restrictions contained in such
54 easement. An instrument for the purpose of creating, conveying, modify-
S. 7726 24 A. 11802
1 ing, or terminating an environmental easement shall not be effective
2 unless recorded.
3 S 2. This act shall take effect immediately.
4 PART C
5 Intentionally omitted.
6 PART D
7 Section 1. Subdivisions 7 and 21 of section 56-0101 of the environ-
8 mental conservation law, subdivision 7 as amended by section 1 of part D
9 of chapter 1 of the laws of 2003 and subdivision 21 as added by chapter
10 413 of the laws of 1996, are amended and a new subdivision 32 is added
11 to read as follows:
12 7. "Environmental restoration project" means a project to investigate
13 or to remediate {hazardous substances} CONTAMINATION pursuant to title
14 five of this article.
15 21. "Responsible party" means a party responsible under applicable
16 principles of statutory or common law liability to remediate the
17 {hazardous substance} CONTAMINATION located at, or emanating from, real
18 property subject to an environmental restoration project.
19 32. "CONTAMINATION" OR "CONTAMINATED" SHALL HAVE THE SAME MEANING AS
20 PROVIDED IN SECTION 27-1405 OF THIS CHAPTER.
21 S 2. Section 56-0502 of the environmental conservation law, as amended
22 by section 3 of part D of chapter 1 of the laws of 2003, is amended to
23 read as follows:
24 S 56-0502. Definitions.
25 1. "Community based organization" shall mean a not-for-profit corpo-
26 ration, exempt from taxation under section 501(c)(3) of the internal
27 revenue code whose stated mission is promoting reuse of brownfield sites
28 within a specified geographic area in which the community based organ-
29 ization is located, which has twenty-five percent or more of its board
30 of directors residing in the community in such area; and represents a
31 community with a demonstrated financial need.
32 "Community based organization" shall not include any not-for-profit
33 corporation that has caused or contributed to the release or threatened
34 release of {hazardous waste or petroleum} CONTAMINATION from or onto the
35 brownfield site, or any not-for-profit corporation that generated,
36 transported, or disposed of, or that arranged for, or caused, the gener-
37 ation, transportation, or disposal of {hazardous waste or petroleum}
38 CONTAMINATION from or onto the brownfield site. This definition shall
39 not apply if more than twenty-five percent of the members, officers or
40 directors of the not-for-profit corporation are or were employed by or
41 receiving compensation from any person responsible for a site under
42 title thirteen of article twenty-seven of this chapter or article twelve
43 of the navigation law or under applicable principles of statutory or
44 common law liability.
45 1-A. "CONTAMINATION" OR "CONTAMINATED" SHALL HAVE THE SAME MEANING AS
46 PROVIDED IN SECTION 27-1405 OF THIS CHAPTER.
47 2. "Cost", for purposes of this title, shall have the same meaning as
48 provided in subdivision four of section 56-0101 of this article, except
49 that such term shall not include the requirement to reduce the cost of
50 an approved project in accordance with any federal or state funds for
51 the project received or to be received by the municipality.
S. 7726 25 A. 11802
1 3. "Environmental restoration investigation project" shall mean a
2 project, undertaken in accordance with the requirements of this title,
3 to investigate {hazardous substances} CONTAMINATION located in, on, or
4 emanating from real property held in title by a municipality.
5 4. "Environmental restoration remediation project" shall mean a
6 project, undertaken in accordance with the requirements of this title,
7 to remediate {hazardous substances} CONTAMINATION located in, on, or
8 emanating from real property held in title by a municipality.
9 5. "Municipality", for purposes of this title, shall have the same
10 meaning as provided in subdivision fifteen of section 56-0101 of this
11 article, except that such term shall not refer to a municipality that
12 generated, transported, or disposed of, arranged for, or that caused the
13 generation, transportation, or disposal of {hazardous substance} CONTAM-
14 INATION located at real property proposed to be investigated or to be
15 remediated under an environmental restoration project. For purposes of
16 this title, the term municipality includes a municipality acting in
17 partnership with a community based organization.
18 6. "State assistance", for purposes of this title, shall mean in the
19 case of a contract authorized by subdivision one of section 56-0503 of
20 this title, payments made to a municipality to reimburse the munici-
21 pality for the state share of the costs incurred by the municipality to
22 undertake an environmental restoration project.
23 S 3. Paragraphs (f), (h), (i) and (j) of subdivision 2 of section
24 56-0503 of the environmental conservation law, as amended by section 4
25 of part D of chapter 1 of the laws of 2003, are amended to read as
26 follows:
27 (f) An agreement by the municipality that it shall prepare and imple-
28 ment a public participation plan for environmental restoration projects
29 undertaken pursuant to this title. The requirements of the plan shall be
30 governed by decision of the municipality to proceed with remediation of
31 the property under this title. However, in all cases, implementation of
32 the plan shall be completed as part of the project. In those cases where
33 the municipality does not intend to proceed with remediation of the
34 property, the plan shall provide timely and accessible disclosure of the
35 results of the investigation to the interested public. The plan shall
36 provide for adequate public notice of the availability of the investi-
37 gation results; an opportunity for submission of written comments; and a
38 filing of a notice of the results of the investigation as authorized by
39 subdivision three of section three hundred sixteen-b of the real proper-
40 ty law. Where the municipality intends to proceed with remediation of
41 the property under this title, the plan shall provide opportunities for
42 early, inclusive participation prior to the selection of a preferred
43 course of action, facilitate communication, including dialogue among the
44 municipality, the department, and the interested public, and provide
45 timely and accessible disclosure of information. At a minimum, the
46 design of the plan shall take into account the scope and scale of the
47 proposed environmental restoration remediation project, local interest,
48 and other relevant factors. The plan shall also provide for: adequate
49 public notice of the availability of a draft remedial plan; a forty-five
50 day period for submission of written comments; a public {hearing} MEET-
51 ING on such plan if substantive issues are raised by members of the
52 affected community; and technical assistance if so requested by members
53 of the affected community. Provided, however, that the requirements of
54 this subdivision shall not apply to interim remedial measures undertaken
55 as part of an environmental restoration project to address emergency
56 site conditions. In such instance, the department or such persons imple-
S. 7726 26 A. 11802
1 menting the interim remedial measure or making the request shall conduct
2 public participation activities as the department deems necessary and
3 appropriate under such circumstances.
4 (h) In the event that such engineering controls and/or institutional
5 controls are necessary, the municipality shall develop a plan consistent
6 with the requirements set forth in section 27-1415 of {the environmental
7 conservation law} THIS CHAPTER. Such plan shall be approved by the
8 department. Failure to implement the plan or maintain such controls
9 shall constitute a violation of such contract and shall terminate for
10 the duration of such failure the protection afforded under subdivision
11 one of section 56-0509 of this title;
12 (i) In the event that an easement is required, such municipality shall
13 {comply} CAUSE SUCH EASEMENT TO BE RECORDED AND INDEXED IN ACCORDANCE
14 with the requirements set forth in title thirty-six of article seventy-
15 one of {the environmental conservation law} THIS CHAPTER; and
16 (j) A provision that exempts a municipality and any successor in title
17 from the requirement to obtain any state or local permit or other
18 authorization for any activity needed to implement a project to investi-
19 gate or remediate {hazardous substances} CONTAMINATION pursuant to this
20 title; provided that the activity is conducted in a manner which satis-
21 fies all substantive technical requirements applicable to like activity
22 conducted pursuant to a permit.
23 S 4. Subdivisions 1, 2 and 3 of section 56-0509 of the environmental
24 conservation law, as amended by section 8 of part D of chapter 1 of the
25 laws of 2003, are amended to read as follows:
26 1. (a) Notwithstanding any other provision of law and except as
27 provided in subdivision two of this section and in paragraph (h) of
28 subdivision two of section 56-0503 of this title, the following shall
29 not be liable to the state upon any statutory or common law cause of
30 action, or to any person upon any statutory cause of action arising out
31 of the presence of any {hazardous substance} CONTAMINATION in or on
32 property at any time before the effective date of a contract entered
33 into pursuant to this title:
34 (i) a municipality receiving state assistance under this title to
35 undertake an environmental restoration project and complying with the
36 terms and conditions of the contract providing such assistance; and
37 (ii) a successor in title to the real property subject to an environ-
38 mental restoration project; any lessee of such property; and any person
39 that provides financing to such party relative to the remediation,
40 restoration, or redevelopment of such property; provided that such
41 successor in title, lessee, or lender did not generate, arrange for,
42 transport, or dispose, and did not cause the generation, arrangement
43 for, transportation, or disposal of any {hazardous substance} CONTAM-
44 INATION located at such property, and did not own such property.
45 (b) Notwithstanding any other provision of this title, any person
46 seeking the benefit of this subdivision shall bear the burden of proving
47 that a cause of action, or any part thereof, is attributable solely to
48 {hazardous substances} CONTAMINATION present in or on such parcel before
49 the effective date of such contract.
50 2. Subdivisions one and three of this section shall not apply to
51 relieve any municipality, successor in title, lessee, or lender from
52 liability arising from:
53 (a) failing to implement such project to the department`s satisfaction
54 or failing to comply with the terms and conditions of the contract;
55 (b) fraudulently demonstrating that the cleanup levels identified in
56 or to be identified in accordance with such project were reached;
S. 7726 27 A. 11802
1 (c) causing the release or threat of release at the property subject
2 to such project of any {hazardous substance} CONTAMINATION after the
3 effective date of such contract; or
4 (d) changing such property`s use from the intended use as identified
5 in the contract pursuant to section 56-0503 of this title to a use
6 requiring a lower level of residual contamination unless the additional
7 remedial activities are undertaken which shall meet the same standard
8 for protection of public health and the environment that applies to
9 remedial actions undertaken pursuant to 27-1313 of this chapter so that
10 such use can be implemented with sufficient protection of public health
11 and the environment.
12 3. The state shall indemnify and save harmless any municipality,
13 successor in title, lessee, or lender identified in paragraph (a) of
14 subdivision one of this section in the amount of any judgment or settle-
15 ment, obtained against such municipality, successor in title, lessee, or
16 lender in any court for any common law cause of action arising out of
17 the presence of any {hazardous substance} CONTAMINATION in or on proper-
18 ty at anytime before the effective date of a contract entered into
19 pursuant to this title. Such municipality, successor in title, lessee,
20 or lender shall be entitled to representation by the attorney general,
21 unless the attorney general determines, or a court of competent juris-
22 diction determines, that such representation would constitute a conflict
23 of interest, in which case the attorney general shall certify to the
24 comptroller that such party is entitled to private counsel of its
25 choice, and reasonable attorneys` fees and expenses shall be reimbursed
26 by the state. Any settlement of such an action shall be subject to the
27 approval of the attorney general as to form and amount, and this subdi-
28 vision shall not apply to any settlement of any such action which has
29 not received such approval.
30 S 5. Subdivision 3 of section 56-0511 of the environmental conserva-
31 tion law, as amended by section 9 of part D of chapter 1 of the laws of
32 2003, is amended to read as follows:
33 3. For the purposes of this section:
34 (i) "change of use" means the transfer of title to all or part of
35 property subject to an environmental restoration project, the erection
36 of any structure on such property, and the creation of a park or other
37 public or private recreational facility on such property, or any activ-
38 ity that is likely to disrupt or expose {hazardous substances} CONTAM-
39 INATION or to increase direct human exposure; or any other conduct that
40 will or may tend to significantly interfere with an ongoing or completed
41 environmental restoration project.
42 (ii) "complete notice" means a notice that adequately apprises the
43 department of the contemplated physical alteration of the property and
44 how such alteration may affect the property`s proposed, ongoing, or
45 completed project, or of the proposed new owner`s ability to implement
46 the engineering and institutional controls associated with the property.
47 S 6. Section 56-0513 of the environmental conservation law, as added
48 by section 10 of part D of chapter 1 of the laws of 2003, is amended to
49 read as follows:
50 S 56-0513. Permit waivers.
51 1. The department shall be exempt from the requirement to obtain any
52 state or local permit or other authorization for any activity needed to
53 implement a project to investigate or remediate {hazardous substances}
54 CONTAMINATION pursuant to this title; provided that the activity is
55 conducted in a manner which satisfies all substantive technical require-
56 ments applicable to like activity conducted pursuant to a permit.
S. 7726 28 A. 11802
1 2. The department, by and through the commissioner, shall be author-
2 ized to exempt any agent, consultant, or contractor of the department
3 from the requirement to obtain any state or local permit or other
4 authorization for any activity needed to implement a project to investi-
5 gate or remediate {hazardous substances} CONTAMINATION pursuant to this
6 title; provided that the activity is conducted in a manner which satis-
7 fies all substantive technical requirements applicable to like activity
8 conducted pursuant to a permit.
9 S 7. Section 56-0515 of the environmental conservation law, as added
10 by section 10 of part D of chapter 1 of the laws of 2003, is amended to
11 read as follows:
12 S 56-0515. Access to sites.
13 The department, by and through the commissioner, shall be authorized
14 to:
15 1. Require that any person permit a duly designated officer or employ-
16 ee of the department or of a municipal corporation, or any agent,
17 consultant, or contractor of the department or of a municipal corpo-
18 ration, or any other person, including an employee, agent, consultant,
19 or contractor of a responsible person acting at the direction of the
20 department, so authorized in writing by the commissioner, to enter upon
21 any property which has or may have a hazardous substance on such proper-
22 ty, and/or areas near such property, for the following purposes:
23 (a) To inspect and take samples of such {hazardous substance} CONTAM-
24 INATE and/or environmental media, utilizing such sampling methods as may
25 be necessary or appropriate, including without limitation soil borings
26 and monitoring wells; provided that no sampling methods involving the
27 substantial disturbance of the ground surface of such property may be
28 utilized until after a minimum of ten days` written notice thereof shall
29 have been provided to the owner and operator and occupant of such prop-
30 erty, if identifiable by reasonable efforts, unless the commissioner
31 makes a written determination that such notice will not allow the
32 protection of the public health or the environment, in which case two
33 days` written notice shall be sufficient;
34 (b) To implement the cleanup, removal, remediation, or restoration of
35 {hazardous substances} CONTAMINATION and/or environmental media;
36 provided that no such work may be undertaken until after a minimum of
37 ten days` written notice thereof shall have been provided to the owner
38 and operator and occupant of such property, if identifiable by reason-
39 able efforts, unless the commissioner makes a written determination that
40 such notice will not allow the protection of the public health or the
41 environment, in which case two days` written notice shall be sufficient.
42 2. (a) Require that any person furnish to the department, in a form
43 and manner as prescribed by the department, information relating to the
44 current and past {hazardous substance} CONTAMINATION generation, treat-
45 ment, storage, disposal, and/or transportation activities of such person
46 or any other person now or formerly under the control of such person; in
47 the event such person cannot comply therewith, in whole or in part, such
48 person shall furnish to the department information describing all
49 efforts made by such person to comply therewith; any information so
50 furnished to the department shall be considered a "written instrument"
51 as defined in subdivision three of section 175.00 of the penal law;
52 (b) Require that any person permit a duly designated officer or
53 employee of the department at all reasonable times to have access to and
54 to copy all books, papers, documents, and records relating to the
55 current and past {hazardous substance} CONTAMINATION generation, treat-
S. 7726 29 A. 11802
1 ment, storage, disposal, and/or transportation activities of such person
2 or any person now or formerly under the control of such person;
3 (c) Require, by subpoena issued in the name of the department, the
4 production of books, papers, documents, and other records, and the
5 rendition of testimony by deposition under oath of any person relating
6 to the current and past {hazardous substance} CONTAMINATION generation,
7 treatment, storage, disposal, and/or transportation activities of such
8 person or any person now or formerly under the control of such person;
9 such subpoenas and depositions shall be regulated by the civil practice
10 law and rules; the commissioner may invoke the powers of the supreme
11 court of the state of New York to compel compliance therewith.
12 S 8. The opening paragraph of subdivision 1 of section 56-0515 of the
13 environmental conservation law, as added by section 10 of part D of
14 chapter 1 of the laws of 2003, is amended to read as follows:
15 Require that any person permit a duly designated officer or employee
16 of the department or of a municipal corporation, or any agent, consult-
17 ant, or contractor of the department or of a municipal corporation, {or
18 any other person, including an employee, agent, consultant, or contrac-
19 tor of a responsible person acting at the direction of the department,}
20 so authorized in writing by the commissioner, to enter upon any property
21 which has or may have a {hazardous substance} CONTAMINATION on such
22 property, and/or areas near such property, for the following purposes:
23 S 9. Subdivision 3 of section 316-b of the real property law, as added
24 by section 11 of part D of chapter 1 of the laws of 2003, is amended to
25 read as follows:
26 3. Each recording officer shall record and index such instruments as
27 may be required to be recorded pursuant to title thirteen or fourteen of
28 article twenty-seven of the environmental conservation law, or title
29 five of article fifty-six of the environmental conservation law, OR
30 ARTICLE TWELVE OF THE NAVIGATION LAW, or any regulation promulgated
31 pursuant thereto, or any order or agreement entered into under authority
32 thereof or of any such regulations.
33 S 10. This act shall take effect immediately.
34 PART E
35 Section 1. Subdivision 10 of section 27-1313 of the environmental
36 conservation law, as added by section 6 of part E of chapter 1 of the
37 laws of 2003, is amended to read as follows:
38 10. The department, by and through the commissioner, shall be author-
39 ized to exempt a person from the requirement to obtain any state or
40 local permit or other authorization for any activity needed to implement
41 an inactive hazardous waste disposal SITE remedial program pursuant to
42 this title; provided, that the activity is conducted in a manner which
43 satisfies all substantive technical requirements applicable to like
44 activity conducted pursuant to a permit.
45 S 2. Paragraphs (v) and (vi) of subdivision (a) and subdivisions (b)
46 and (c) of section 27-1318 of the environmental conservation law, as
47 added by section 8-a of part E of chapter 1 of the laws of 2003, are
48 amended to read as follows:
49 (v) where required by the department, financial assurance to ensure
50 the {long term} LONG-TERM implementation, maintenance, monitoring, and
51 enforcement of any such controls; and
52 (vi) A REQUIREMENT THAT any engineering control must be used in
53 conjunction with institutional controls to ensure the continued integri-
54 ty of such engineering control.
S. 7726 30 A. 11802
1 (b) Within sixty days of commencement of the remedial design, the
2 owner of an inactive hazardous waste disposal site, and/or any person
3 responsible for {the disposal of hazardous waste} IMPLEMENTING A REMEDI-
4 AL PROGRAM at such site, where institutional or engineering controls are
5 employed pursuant to this title, shall execute an environmental easement
6 pursuant to title thirty-six of article seventy-one of this chapter.
7 (c) The owner of an inactive hazardous waste disposal site, and/or any
8 person responsible for {the disposal of hazardous wastes} IMPLEMENTING
9 THE REMEDIAL PROGRAM at such site where institutional or engineering
10 controls are employed pursuant to this title shall, unless otherwise
11 provided in writing by the department, annually submit to the department
12 a written statement by an individual licensed or otherwise authorized in
13 accordance with article one hundred forty-five of the education law to
14 practice the profession of engineering, or by such other expert as the
15 department may find acceptable certifying under penalty of perjury that
16 the institutional controls and/or engineering controls employed at such
17 site are unchanged from the previous certification and that nothing has
18 occurred that would impair the ability of such control to protect the
19 public health and environment, or constitute a violation or failure to
20 comply with any operation and maintenance plan for such controls and
21 giving access to such real property to evaluate continued maintenance of
22 such controls.
23 S 3. Clause (viii) of subparagraph 5 of paragraph (c) of subdivision
24 1, the opening paragraph of paragraph (b), clause (i) of subparagraph 1
25 and subparagraph 2 of paragraph (c) of subdivision 4 of section 27-1323
26 of the environmental conservation law, as added by section 9 of part E
27 of chapter 1 of the laws of 2003, are amended to read as follows:
28 (viii) A person that provides title insurance and that acquires a
29 {vessel or} site as a result of assignment or conveyance in the course
30 of underwriting claims and claims settlement.
31 For purposes of this section, (1) the term "act of God" means an unan-
32 ticipated grave natural disaster or other natural phenomenon of an
33 exceptional, inevitable, and irresistible character, the effects of
34 which could not have been {presented} PREVENTED or avoided by the exer-
35 cise of due care or foresight, (2) the term "contractual relationship"
36 includes, but is not limited to, land contracts, deeds, or other instru-
37 ments transferring title or possession, unless the real property on
38 which the site concerned is located was acquired by such person after
39 the disposal or placement of the hazardous waste on, in, or at such
40 site, and such person establishes one or more of the circumstances
41 described in clause (i), (ii), or (iii) of this subparagraph by a
42 preponderance of the evidence:
43 (i) on or before the date on which the person acquired the site, the
44 person carried out all appropriate {inquires} INQUIRIES, as provided in
45 subparagraphs two and four of this paragraph, into the previous owner-
46 ship and uses of the site in accordance with generally accepted good
47 commercial and customary standards and practices; and
48 (2) Not later than one year after the effective date of this section,
49 the commissioner shall by regulation establish standards and practices
50 for the purpose of satisfying the requirement to carry out all appropri-
51 ate {inquires} INQUIRIES under subparagraph one of this paragraph.
52 S 4. Clause (viii) of subparagraph 5 of paragraph (c) of subdivision
53 1, the opening paragraph of paragraph (b), clause (i) of subparagraph 1
54 and clause (ii) of subparagraph 4 of paragraph (c) of subdivision 4 of
55 section 1389-e of the public health law, as added by section 10 of part
56 E of chapter 1 of the laws of 2003, are amended to read as follows:
S. 7726 31 A. 11802
1 (viii) A person that provides title insurance and that acquires a
2 {vessel or} site as a result of assignment or conveyance in the course
3 of underwriting claims and claims settlement.
4 For purposes of this section, (1) the term "act of God" means an unan-
5 ticipated grave natural disaster or other natural phenomenon of an
6 exceptional, inevitable, and irresistible character, the effects of
7 which could not have been {presented} PREVENTED or avoided by the exer-
8 cise of due care or foresight, (2) the term "contractual relationship"
9 includes, but is not limited to, land contracts, deeds, or other instru-
10 ments transferring title or possession, unless the real property on
11 which the site concerned is located was acquired by such person after
12 the disposal or placement of the hazardous waste on, in, or at such
13 site, and such person establishes one or more of the circumstances
14 described in clause (i), (ii), or (iii) of this subparagraph by a
15 preponderance of the evidence:
16 (i) on or before the date on which the person acquired the site, the
17 person carried out all appropriate {inquires} INQUIRIES, as provided in
18 subparagraphs two and four of this paragraph, into the previous owner-
19 ship and uses of the site in accordance with generally accepted good
20 commercial and customary standards and practices; and
21 (ii) With respect to property purchased on or after May thirty-first,
22 nineteen hundred ninety-seven, and until the commissioner OF ENVIRON-
23 MENTAL CONSERVATION promulgates the regulations described in subpara-
24 graph two of this paragraph, the procedures of the American Society for
25 Testing and Materials, including the document known as "Standard E1527-
26 97", entitled `Standard Practice for Environmental Site Assessment:
27 Phase 1 Environmental Site Assessment Process`, shall satisfy the
28 requirements in subparagraph one of this paragraph.
29 S 5. This act shall take effect immediately.
30 PART F
31 Section 1. Subdivision 1, paragraphs a and g of subdivision 2, para-
32 graphs f and i of subdivision 3 and paragraph h of subdivision 6 of
33 section 970-r of the general municipal law, as added by section 1 of
34 part F of chapter 1 of the laws of 2003, are amended to read as follows:
35 1. Definitions. a. "Applicant" shall mean the municipality and/or
36 community based organization submitting an application in the manner
37 authorized by this section.
38 b. "Commissioner" shall mean the commissioner of the department of
39 environmental conservation.
40 c. "Community based organization" shall mean a not-for-profit corpo-
41 ration {incorporated} EXEMPT FROM TAXATION under section 501(c)(3) of
42 the internal revenue code whose stated mission is promoting reuse of
43 brownfield sites within a specified geographic area in which the commu-
44 nity based organization is located; which has twenty-five percent or
45 more of its board of directors residing in the community in such area;
46 and represents a community with a demonstrated financial need. "Communi-
47 ty based organization" shall not include any not-for-profit corporation
48 that has caused or contributed to the release or threatened release of a
49 {hazardous waste or petroleum} CONTAMINANT from or onto the brownfield
50 site, or any not-for-profit corporation that generated, transported, or
51 disposed of, or that arranged for, or caused, the generation, transpor-
52 tation, or disposal of {hazardous waste or petroleum} CONTAMINATION from
53 or onto the brownfield site. This definition shall not apply if more
54 than twenty-five percent of the members, officers or directors of the
S. 7726 32 A. 11802
1 not-for-profit corporation are or were employed or receiving compen-
2 sation from any person responsible for a site under title thirteen or
3 title fourteen of article twenty-seven of the environmental conservation
4 law, article twelve of the navigation law or under applicable principles
5 of statutory or common law liability.
6 d. "Brownfield site" shall have the same meaning as set forth in
7 section 27-1405 of the environmental conservation law.
8 e. "Department" shall mean the department of environmental conserva-
9 tion.
10 f. {"Hazardous waste" shall have the same meaning as set forth in
11 subdivision one of section 27-1301 of the environmental conservation
12 law.} "CONTAMINATION" OR "CONTAMINATED" SHALL HAVE THE SAME MEANING AS
13 PROVIDED IN SECTION 27-1405 OF THE ENVIRONMENTAL CONSERVATION LAW.
14 G. "MUNICIPALITY" SHALL HAVE THE SAME MEANING AS SET FORTH IN SUBDIVI-
15 SION FIFTEEN OF SECTION 56-0101 OF THE ENVIRONMENTAL CONSERVATION LAW.
16 a. Within the limits of appropriations therefor, the {secretary}
17 COMMISSIONER is authorized to provide, on a competitive basis, financial
18 assistance to municipalities, to community based organizations, or to
19 municipalities and community based organizations acting in cooperation
20 to prepare a pre-nomination study for a brownfield opportunity area
21 designation. Such financial assistance shall not exceed ninety percent
22 of the costs of such pre-nomination study for any such area.
23 g. Following notification to the applicant that assistance has been
24 awarded, and prior to disbursement of funds, a contract shall be
25 executed between the department and the applicant or co-applicants. The
26 commissioner shall establish terms and conditions for such contracts as
27 the commissioner deems appropriate, including provisions to define:
28 applicant`s work scope, work schedule, and deliverables; {reporting}
29 fiscal reports on budgeted and actual use of funds expended; and
30 requirements for submission of a final fiscal report. The contract shall
31 also require the distribution of work products to the department, and,
32 for community based organizations, to the applicant`s municipality.
33 Applicants shall be required to make the results publicly available.
34 f. Each application for such assistance shall be submitted to the
35 {secretary} COMMISSIONER in a format, and containing such information,
36 as prescribed by the commissioner but shall include, at a minimum, the
37 following:
38 (1) a statement of the rationale or relationship between the proposed
39 assistance and the criteria set forth in this section for the evaluation
40 and ranking of assistance applications;
41 (2) the processes by which local participation in the development of
42 the application has been sought;
43 (3) the process to be carried out under the state assistance includ-
44 ing, but not limited to, the goals of and budget for the effort, the
45 work plan and timeline for the attainment of these goals, and the
46 intended process for public participation in the process;
47 (4) the manner and extent to which public or governmental agencies
48 with jurisdiction over issues that will be addressed in the data gather-
49 ing process will be involved in this process;
50 (5) other planning and development initiatives proposed or in progress
51 in the proposed brownfield opportunity area;
52 (6) for each community based organization which is an applicant or a
53 co-applicant, a description of the relationship between the community
54 based organization and the area that is the subject of the application,
55 its financial and institutional accountability, its experience in
56 conducting and completing planning initiatives and in working with the
S. 7726 33 A. 11802
1 local government associated with the proposed BROWNFIELD OPPORTUNITY
2 area; and
3 (7) the financial commitments the applicant will make to the brown-
4 field opportunity area for activities including, but not limited to,
5 marketing of the area for business development, human resource services
6 for residents and businesses in the brownfield opportunity area, and
7 services for small and minority and women-owned businesses.
8 i. Following notification to the applicant that assistance has been
9 awarded, and prior to disbursement of funds, a contract shall be
10 executed between the department and the applicant or co-applicants. The
11 commissioner shall establish terms and conditions for such contracts as
12 the commissioner deems appropriate, including provisions to define:
13 applicant`s work scope, work schedule, and deliverables; {reporting}
14 fiscal reports on budgeted and actual use of funds expended; and
15 requirements for submission of a final fiscal report. The contract shall
16 also require the distribution of work products to the department, and,
17 for community based organizations, to the applicant`s municipality.
18 Applicants shall be required to make the results publicly available.
19 Such contract shall further include a provision providing that if any
20 responsible party payments become available to the applicant, the amount
21 of such payments attributable to expenses paid by the award shall be
22 paid to the department by the applicant; provided that the applicant may
23 first apply such responsible party payments toward any actual project
24 costs incurred by the applicant.
25 h. Following notification to the applicant that assistance has been
26 awarded, and prior to disbursement of funds, a contract shall be
27 executed between the department and the applicant or co-applicants. The
28 commissioner shall establish terms and conditions for such contracts as
29 the commissioner deems appropriate in consultation with the secretary of
30 state, including provisions to define: applicant`s work scope, work
31 schedule, and deliverables; {reporting} fiscal reports on budgeted and
32 actual use of funds expended; and requirements for submission of a final
33 fiscal report. The contract shall also require the distribution of work
34 products to the department, and, for community based organizations, to
35 the applicant`s municipality. Applicants shall be required to make the
36 results publicly available. Such contract shall further include a
37 provision providing that if any responsible party payments become avail-
38 able to the applicant, the amount of such payments attributable to
39 expenses paid by the award shall be paid to the department by the appli-
40 cant; provided that the applicant may first apply such responsible party
41 payments towards actual project costs incurred by the applicant.
42 S 2. This act shall take effect immediately.
43 PART G
44 Section 1. Subdivision 4 of section 181 of the navigation law, as
45 added by section 1 of part G of chapter 1 of the laws of 2003, is
46 amended to read as follows:
47 4. (A) The only defenses that may be raised by a person responsible
48 for a discharge of petroleum are: an act or omission caused solely by
49 (i) war, sabotage, {and} OR governmental negligence or (ii) AN ACT OR
50 OMISSION OF a third party other than {a contractual relationship result-
51 ing from a loan, mortgage or conduit financing from the person responsi-
52 ble} AN EMPLOYEE OR AGENT OF THE PERSON RESPONSIBLE, OR A THIRD PARTY
53 WHOSE ACT OR OMISSION OCCURS IN CONNECTION WITH A CONTRACTUAL RELATION-
54 SHIP WITH THE PERSON RESPONSIBLE, if the person responsible establishes
S. 7726 34 A. 11802
1 by a preponderance of the evidence that the person responsible (a) exer-
2 cised due care with respect to the petroleum concerned, taking into
3 consideration the characteristics of petroleum and in light of all rele-
4 vant facts and circumstances; and (b) took precautions against the acts
5 or omissions of any such third party and the consequences of those acts
6 or omissions. These defenses shall not apply to a person responsible who
7 refuses or fails to (a) report the discharge, or (b) provide all reason-
8 able cooperation and assistance in cleanup and removal activities under-
9 taken on behalf of the fund by the department. In any case where a
10 person responsible for a discharge establishes by a preponderance of the
11 evidence that a discharge and the resulting cleanup and removal costs
12 were caused solely by an act or omission of one or more third parties as
13 described above, the third party or parties shall be treated as the
14 person or persons responsible for the purposes of determining liability
15 under this article.
16 (B) NOTHING SET FORTH IN THIS SUBDIVISION SHALL BE CONSTRUED TO HOLD A
17 LENDER LIABLE TO THE STATE AS A PERSON RESPONSIBLE FOR THE DISCHARGE OF
18 PETROLEUM AT A SITE IN THE EVENT: (I) SUCH LENDER, WITHOUT PARTICIPATING
19 IN THE MANAGEMENT OF SUCH SITE, HOLDS INDICIA OF OWNERSHIP PRIMARILY TO
20 PROTECT THE LENDER`S SECURITY INTEREST IN THE SITE, OR (II) SUCH LENDER
21 DID NOT PARTICIPATE IN THE MANAGEMENT OF SUCH SITE PRIOR TO A FORECLO-
22 SURE, AND SUCH LENDER:
23 (1) FORECLOSES ON SUCH SITE; AND
24 (2) AFTER FORECLOSURE, SELLS, RE-LEASES (IN THE CASE OF A LEASE
25 FINANCE TRANSACTION), OR LIQUIDATES SUCH SITE, MAINTAINS BUSINESS ACTIV-
26 ITIES, WINDS UP OPERATIONS, OR TAKES ANY OTHER MEASURE TO PRESERVE,
27 PROTECT OR PREPARE SUCH SITE FOR SALE OR DISPOSITION; PROVIDED HOWEVER,
28 THAT SUCH LENDER SHALL TAKE ACTIONS TO SELL, RE-LEASE (IN THE CASE OF A
29 LEASE FINANCE TRANSACTION), OR OTHERWISE DIVEST ITSELF OF SUCH SITE AT
30 THE EARLIEST PRACTICABLE, COMMERCIALLY REASONABLE TIME, ON COMMERCIALLY
31 REASONABLE TERMS, TAKING INTO ACCOUNT MARKET CONDITIONS AND LEGAL AND
32 REGULATORY REQUIREMENTS.
33 (C) THIS EXEMPTION SHALL NOT APPLY TO ANY LENDER THAT HAS (I) CAUSED
34 OR CONTRIBUTED TO THE DISCHARGE OF PETROLEUM FROM OR AT THE SITE, (II)
35 PURCHASED, SOLD, REFINED, TRANSPORTED, OR DISCHARGED PETROLEUM FROM OR
36 AT SUCH SITE, OR (III) CAUSED THE PURCHASE, SALE, REFINEMENT, TRANSPOR-
37 TATION, OR DISCHARGE OF PETROLEUM FROM OR AT SUCH SITE.
38 THE TERMS "PARTICIPATING IN MANAGEMENT," "FORECLOSURE," "LENDER" AND
39 "SECURITY INTEREST" SHALL HAVE THE SAME MEANING AS THOSE TERMS ARE
40 DEFINED IN PARAGRAPH (C) OF SUBDIVISION ONE OF SECTION 27-1323 OF THE
41 ENVIRONMENTAL CONSERVATION LAW.
42 S 2. This act shall take effect immediately.
43 PART H
44 Section 1. Subdivisions (a), (b), (d) and (e) of section 21 of the tax
45 law, as added by section 1 of part H of chapter 1 of the laws of 2003,
46 are amended to read as follows:
47 (a) Allowance of credit. (1) General. A taxpayer subject to tax under
48 article nine, nine-A, twenty-two, thirty-two or thirty-three of this
49 chapter shall be allowed a credit against such tax, pursuant to the
50 provisions referenced in subdivision (f) of this section. Such credit
51 shall be allowed with respect to a qualified site, as such term is
52 defined in paragraph one of subdivision (b) of this section. The amount
53 of the credit in a taxable year shall be the sum of the credit compo-
S. 7726 35 A. 11802
1 nents specified in paragraphs two, three and four of this subdivision
2 applicable in such year.
3 (2) Site preparation credit component. The site preparation credit
4 component shall be equal to the applicable percentage of the site prepa-
5 ration costs paid or incurred by the taxpayer with respect to a quali-
6 fied site. The credit component amount so determined with respect to a
7 site`s qualification for a {remediation} certificate OF COMPLETION shall
8 be allowed for the taxable year in which the effective date of the
9 {remediation} certificate OF COMPLETION occurs. The credit component
10 amount determined other than with respect to such qualification shall be
11 allowed for the taxable year in which the improvement to which the
12 applicable costs apply is placed in service for up to five taxable years
13 after the issuance of such {remediation} certificate OF COMPLETION.
14 (3) Tangible property credit component. The tangible property credit
15 component shall be equal to the applicable percentage of the cost or
16 other basis for federal income tax purposes of tangible personal proper-
17 ty and other tangible property, including buildings and structural
18 components of buildings, which constitute qualified tangible property.
19 The credit component amount so determined shall be allowed for the taxa-
20 ble year in which such qualified tangible property is placed in service
21 on a qualified site with respect to which a {remediation} certificate OF
22 COMPLETION has been issued to the taxpayer for up to ten taxable years
23 after the date of the issuance of such {remediation} certificate OF
24 COMPLETION. The tangible property credit component shall be allowed with
25 respect to property leased to a second party only if such second party
26 is either (i) not a party responsible for the disposal of hazardous
27 waste or the discharge of petroleum at the site according to applicable
28 principles of statutory or common law liability, or (ii) a party respon-
29 sible according to applicable principles of statutory or common law
30 liability if such party`s liability arises solely from operation of the
31 site subsequent to the disposal of hazardous waste or the discharge of
32 petroleum, and is so certified by the commissioner of environmental
33 conservation at the request of the taxpayer, pursuant to section 27-1419
34 of the environmental conservation law. Notwithstanding any other
35 provision of law to the contrary, in the case of allowance of credit
36 under this section to such a lessor, the commissioner shall have the
37 authority to reveal to such lessor any information, with respect to the
38 issue of qualified use of property by the lessee, which is the basis for
39 the denial in whole or in part, or for the recapture, of the credit
40 claimed by such lessor.
41 (4) On-site groundwater remediation credit component. The on-site
42 groundwater remediation credit component shall be equal to the applica-
43 ble percentage of the on-site groundwater remediation costs paid or
44 incurred by the taxpayer with respect to a qualified site (to the extent
45 that such groundwater remediation costs are not included in the determi-
46 nation of the site preparation credit or the cost or other basis
47 included in the determination of the tangible property credit). The
48 credit component so determined for costs incurred and paid with respect
49 to and prior to the issuance of a {remediation} certificate OF
50 COMPLETION shall be allowed for the taxable year in which the effective
51 date of the issuance of a {remediation} certificate OF COMPLETION
52 occurs. The credit component amount determined in taxable years after
53 the effective date of the issuance of a {remediation} certificate OF
54 COMPLETION shall be allowed in the taxable year such qualified costs are
55 incurred and paid for up to five taxable years after the issuance of
56 such {remediation} certificate OF COMPLETION.
S. 7726 36 A. 11802
1 (5) Applicable percentage. For purposes of paragraphs two, three and
2 four of this subdivision, the applicable percentage shall be twelve
3 percent in the case of credits claimed under article nine, nine-A, thir-
4 ty-two or thirty-three of this chapter, and ten percent in the case of
5 credits claimed under article twenty-two of this chapter, except that
6 where at least fifty percent of the area of the qualified site relating
7 to the credit provided for in this section is located in an environ-
8 mental zone as defined in paragraph six of subdivision (b) of this
9 section, the applicable percentage shall be increased by an additional
10 eight percent. Provided, however, as afforded in section 27-1419 of the
11 environmental conservation law, if the {remediation} certificate OF
12 COMPLETION indicates that the qualified site has been remediated to
13 {track} TRACK 1 as that term is described in subdivision four of section
14 27-1415 of the environmental conservation law, the applicable percentage
15 set forth in the first sentence of this paragraph shall be increased by
16 an additional two percent.
17 (6) Site preparation costs and on-site groundwater remediation costs
18 paid or incurred by the taxpayer with respect to a qualified site and
19 the cost or other basis for federal income tax purposes of tangible
20 personal property and other tangible property, including buildings and
21 structural components of buildings, which constitute qualified tangible
22 property shall only include costs paid or incurred by the taxpayer on or
23 after the date of the brownfield site CLEANUP agreement executed by the
24 taxpayer and the department of environmental conservation pursuant to
25 section {27-1422} 27-1409 of the environmental conservation law.
26 (7) The amount of any grant received from the federal, state or a
27 local government or an instrumentality or public benefit corporation
28 thereof received by the taxpayer and used to pay for any of the costs
29 described in paragraphs two, three and four of this subdivision, which
30 was not included in the federal gross income of the taxpayer, shall be
31 subtracted in computing the credit components under this section.
32 (b) Definitions. As used in this section, the following terms shall
33 have the following meanings:
34 (1) Qualified site. A "qualified site" is a site with respect to which
35 a {certification} CERTIFICATE of completion has been issued to the
36 taxpayer by the commissioner of environmental conservation pursuant to
37 section 27-1419 of the environmental conservation law.
38 (2) Site preparation costs. The term "site preparation costs" shall
39 mean all amounts properly chargeable to a capital account, (i) which are
40 paid or incurred in connection with a site`s qualification for a {reme-
41 diation} certificate OF COMPLETION, and (ii) all other site preparation
42 costs paid or incurred in connection with preparing a site for the
43 erection of a building or a component of a building, or otherwise to
44 establish a site as usable for its industrial, commercial (including the
45 commercial development of residential housing), recreational or conser-
46 vation purposes. Site preparation costs shall include, but not be limit-
47 ed to, the costs of excavation, temporary electric wiring, scaffolding,
48 demolition costs, and the costs of fencing and security facilities. Site
49 preparation costs shall not include the cost of acquiring the site and
50 shall not include amounts included in the cost or other basis for feder-
51 al income tax purposes of qualified tangible property, as described in
52 paragraph three of this subdivision.
53 (3) Qualified tangible property. "Qualified tangible property" is
54 property which:
55 (A) is depreciable pursuant to section one hundred sixty-seven of the
56 internal revenue code,
S. 7726 37 A. 11802
1 (B) has a useful life of four years or more,
2 (C) has been acquired by purchase as defined in section one hundred
3 seventy-nine (d) of the internal revenue code,
4 (D) has a situs on a qualified site in this state, AND
5 (E) is principally used by the taxpayer for industrial, commercial,
6 recreational or environmental conservation purposes (including the
7 commercial development of residential housing){, and
8 (F) is placed in service within three years following the issuance of
9 a remediation certificate with respect to such qualified site}.
10 (4) On-site groundwater remediation costs. {All} THE TERM "ON-SITE
11 GROUNDWATER REMEDIATION COSTS" SHALL MEAN ALL amounts properly chargea-
12 ble to a capital account, (I) which are paid or incurred in connection
13 with A SITE`S QUALIFICATION FOR A CERTIFICATE OF COMPLETION, AND (II)
14 INCLUDE COSTS WHICH ARE PAID OR INCURRED IN CONNECTION WITH the remedi-
15 ation of on-site groundwater contamination and incurred to implement a
16 requirement of the {remediation} REMEDIAL work plan OR AN INTERIM REME-
17 DIAL MEASURE WORK PLAN for a qualified site which {is} ARE imposed
18 pursuant to {subdivision} SUBDIVISIONS two AND THREE of section
19 {27-1407} 27-1411 of the environmental conservation law.
20 (5) {Remediation certificate} CERTIFICATE OF COMPLETION. A {"remedi-
21 ation certificate" is a certification of completion} "CERTIFICATE OF
22 COMPLETION" issued by the commissioner of environmental conservation
23 pursuant to section 27-1419 of the environmental conservation law.
24 (6) Environmental zones (EN-Zones). An "environmental zone" shall mean
25 an area designated as such by the commissioner of economic development.
26 Such areas so designated are areas which are census tracts and block
27 numbering areas which, as of the two thousand census, satisfy {both}
28 EITHER of the following criteria:
29 (A) AREAS THAT HAVE BOTH:
30 (i) {areas that have} a poverty rate of at least twenty percent for
31 the year to which the data relate; and
32 (ii) {areas with} an unemployment rate of at least one and one-quarter
33 times the statewide unemployment rate for the year to which the data
34 relate{.}, OR;
35 (B) AREAS THAT HAVE A POVERTY RATE OF AT LEAST TWO TIMES THE POVERTY
36 RATE FOR THE COUNTY IN WHICH THE AREAS ARE LOCATED FOR THE YEAR TO WHICH
37 THE DATA RELATE PROVIDED, HOWEVER, THAT A QUALIFIED SITE SHALL ONLY BE
38 DEEMED TO BE LOCATED IN AN ENVIRONMENTAL ZONE UNDER THIS SUBPARAGRAPH
39 (B) IF SUCH SITE WAS THE SUBJECT OF A BROWNFIELD SITE CLEANUP AGREEMENT
40 PURSUANT TO SECTION 27-1409 OF THE ENVIRONMENTAL CONSERVATION LAW THAT
41 WAS ENTERED INTO PRIOR TO SEPTEMBER FIRST, TWO THOUSAND SIX.
42 Such designation shall be made and a list of all such environmental
43 zones shall be established by the commissioner of economic development
44 no later than December thirty-first, two thousand {three} FOUR PROVIDED,
45 HOWEVER, THAT A QUALIFIED SITE SHALL ONLY BE DEEMED TO BE LOCATED IN AN
46 ENVIRONMENTAL ZONE UNDER SUBPARAGRAPH (B) OF THIS PARAGRAPH IF SUCH SITE
47 WAS THE SUBJECT OF A BROWNFIELD SITE CLEANUP AGREEMENT PURSUANT TO
48 SECTION 27-1409 OF THE ENVIRONMENTAL CONSERVATION LAW THAT WAS ENTERED
49 INTO PRIOR TO SEPTEMBER FIRST, TWO THOUSAND SIX.
50 (d) Depreciable property. (1) With respect to qualified tangible prop-
51 erty which is depreciable pursuant to section one hundred sixty-seven of
52 the internal revenue code but is not subject to the provisions of
53 section one hundred sixty-eight of such code and which {is disposed of
54 or} ceases to be in qualified use prior to the end of the taxable year
55 in which the credit is to be taken, the amount of the credit shall be
56 that portion of the credit provided for in this subdivision which
S. 7726 38 A. 11802
1 represents the ratio which the months of qualified use bear to the
2 months of useful life. If property on which credit has been taken {is
3 disposed of or} ceases to be in qualified use prior to the end of its
4 useful life, the difference between the credit taken and the credit
5 allowed for actual use must be added back in the year {of disposition}
6 IN WHICH THE PROPERTY CEASED TO BE IN QUALIFIED USE. Provided, however,
7 if such property {is disposed of or} ceases to be in qualified use after
8 it has been in qualified use for more than twelve consecutive years, it
9 shall not be necessary to add back the credit as provided in this para-
10 graph. The amount of credit allowed for actual use shall be determined
11 by multiplying the original credit by the ratio which the months of
12 qualified use bear to the months of useful life. For purposes of this
13 paragraph, the useful life of property shall be the same as the taxpayer
14 uses for depreciation purposes when computing its federal income tax
15 liability.
16 (2) Except with respect to that property to which paragraph four of
17 this subdivision applies, with respect to qualified tangible property
18 which is three-year property, as defined in subsection (e) of section
19 one hundred sixty-eight of the internal revenue code, which {is disposed
20 of or} ceases to be in qualified use prior to the end of the taxable
21 year in which the credit is to be taken, the amount of the credit shall
22 be that portion of the credit provided for in this section which repres-
23 ents the ratio which the months of qualified use bear to thirty-six. If
24 property on which credit has been taken {is disposed of or} ceases to be
25 in qualified use prior to the end of thirty-six months, the difference
26 between the credit taken and the credit allowed for actual use must be
27 added back in the year {of disposition} IN WHICH THE PROPERTY CEASED TO
28 BE IN QUALIFIED USE. The amount of credit allowed for actual use shall
29 be determined by multiplying the original credit by the ratio which the
30 months of qualified use bear to thirty-six.
31 (3) Except with respect to that property to which paragraph four of
32 this subdivision applies, with respect to qualified tangible property
33 which is subject to the provisions of section one hundred sixty-eight of
34 the internal revenue code other than three-year property as defined in
35 subsection (e) of such section one hundred sixty-eight which {is
36 disposed of or} ceases to be in qualified use prior to the end of the
37 taxable year in which the credit is to be taken, the amount of the cred-
38 it shall be that portion of the credit provided for in this section
39 which represents the ratio which the months of qualified use bear to
40 sixty. If property on which credit has been taken {is disposed of or}
41 ceases to be in qualified use prior to the end of sixty months, the
42 difference between the credit taken and the credit allowed for actual
43 use must be added back in the year {of disposition} IN WHICH THE PROPER-
44 TY CEASED TO BE IN QUALIFIED USE. The amount of credit allowed for
45 actual use shall be determined by multiplying the original credit by the
46 ratio which the months of qualified use bear to sixty.
47 (4) With respect to any qualified tangible property to which section
48 one hundred sixty-eight of the internal revenue code applies, which is a
49 building or a structural component of a building and which {is disposed
50 of or} ceases to be in qualified use prior to the end of the taxable
51 year in which the credit is to be taken, the amount of the credit shall
52 be that portion of the credit provided for in this section which repres-
53 ents the ratio which the months of qualified use bear to the total
54 number of months over which the taxpayer chooses to deduct the property
55 under the internal revenue code. If property on which credit has been
56 taken {is disposed of or} ceases to be in qualified use prior to the end
S. 7726 39 A. 11802
1 of the period over which the taxpayer chooses to deduct the property
2 under the internal revenue code, the difference between the credit taken
3 and the credit allowed for actual use must be added back in the year {of
4 disposition} IN WHICH THE PROPERTY CEASED TO BE IN QUALIFIED USE.
5 Provided, however, if such property {is disposed of or} ceases to be in
6 qualified use after it has been in qualified use for more than twelve
7 consecutive years, it shall not be necessary to add back the credit as
8 provided in this paragraph. The amount of credit allowed for actual use
9 shall be determined by multiplying the original credit by the ratio
10 which the months of qualified use bear to the total number of months
11 over which the taxpayer chooses to deduct the property under the inter-
12 nal revenue code.
13 (e) If the {remediation} certificate OF COMPLETION issued to the
14 taxpayer with respect to a qualified site is revoked by a determination
15 issued pursuant to section 27-1419 of the environmental conservation
16 law, the amount of any credit allowed by this section shall be added
17 back in the taxable year in which such determination is final and no
18 longer subject to judicial review.
19 S 2. Paragraph 10 of subsection (c) of section 683 of the tax law, as
20 added by section 6 of part H of chapter 1 of the laws of 2003, is
21 amended to read as follows:
22 (10) Reports concerning a {remediation} certificate OF COMPLETION. If
23 a taxpayer`s {remediation} certificate OF COMPLETION issued pursuant to
24 section 27-1419 of the environmental conservation law is revoked by a
25 determination issued pursuant to section 27-1419 of the environmental
26 conservation law, any tax liability generated by reason of such revoca-
27 tion may be assessed within one year after such determination is final
28 and is no longer subject to judicial review.
29 S 3. Paragraph 10 of subsection (c) of section 1083 of the tax law, as
30 added by section 8 of part H of chapter 1 of the laws of 2003, is
31 amended to read as follows:
32 (10) Reports concerning a {remediation} certificate OF COMPLETION. If
33 a taxpayer`s {certification} CERTIFICATE of completion issued pursuant
34 to section 27-1419 of the environmental conservation law is revoked by a
35 determination issued pursuant to section 27-1419 of the environmental
36 conservation law, any tax liability generated by reason of such revoca-
37 tion may be assessed within one year after such determination is final
38 and is no longer subject to judicial review.
39 S 4. Subdivisions (a) and (b) of section 22 of the tax law, as added
40 by section 12 of part H of chapter 1 of the laws of 2003, are amended to
41 read as follows:
42 (a) Definitions. As used in this section the following terms shall
43 have the following meanings:
44 (1) {Remediation certificate} CERTIFICATE OF COMPLETION. A {"remedi-
45 ation certificate" is a certification of completion} "CERTIFICATE OF
46 COMPLETION" issued by the commissioner of environmental conservation
47 pursuant to section 27-1419 of the environmental conservation law.
48 (2) Qualified site. For purposes of this section, a "qualified site"
49 is a site with respect to which a {certification} CERTIFICATE of
50 completion has been issued by the commissioner of environmental conser-
51 vation pursuant to section 27-1419 of the environmental conservation
52 law.
53 (3) Developer. (i) A "developer" is a taxpayer under article nine,
54 nine-A, twenty-two, thirty-two or thirty-three of this chapter who or
55 which either (I) has been issued a {remediation} certificate OF
56 COMPLETION with respect to a qualified site or (II) has purchased or IN
S. 7726 40 A. 11802
1 any other way has been conveyed all or any portion of a qualified site
2 from a taxpayer OR ANY OTHER PARTY who or which has been issued a {reme-
3 diation} certificate OF COMPLETION with respect to such site provided,
4 such purchase or conveyance occurs within seven years of the effective
5 date of the {remediation} certificate OF COMPLETION issued with respect
6 to such qualified site. Provided further, that the taxpayer who or
7 which is purchasing all or any portion of a qualified site and the
8 taxpayer OR ANY OTHER PARTY who or which has been issued a {remediation}
9 certificate OF COMPLETION with respect to such site may not be related
10 persons, as such term is defined in subparagraph (C) of paragraph three
11 of subsection (b) of section four hundred sixty-five of the internal
12 revenue code.
13 (ii) Where the entity to whom a {remediation} certificate OF
14 COMPLETION has been issued is a partnership, or where the entity which
15 has purchased all or any portion of a qualified site from a taxpayer who
16 or which has been issued a {remediation} certificate OF COMPLETION with
17 respect to such site within the applicable time limit is a partnership,
18 any partner in such partnership who or which is taxable under article
19 nine, nine-A, twenty-two, thirty-two or thirty-three of this chapter
20 shall be a developer under this paragraph. Where the entity to whom a
21 {remediation} certificate OF COMPLETION has been issued is a New York S
22 corporation, or where the entity which has purchased all or any portion
23 of a qualified site from a taxpayer who or which has been issued a
24 {remediation} certificate OF COMPLETION with respect to such site within
25 the applicable time limit is a New York S corporation, any shareholder
26 in such New York S corporation shall be a developer under this para-
27 graph.
28 (4) Cessation of status. A taxpayer shall cease to be a developer on
29 the first day of the taxable year during which revocation of its {reme-
30 diation} certificate OF COMPLETION under section 27-1419 of the environ-
31 mental conservation law is final and no longer subject to judicial
32 review, and the amount of any credit allowed by this section shall be
33 added back in the taxable year in which such determination is final and
34 no longer subject to judicial review.
35 (5) Environmental zones (EN-Zones). An "environmental zone" shall mean
36 an area designated as such by the commissioner of economic development.
37 Such areas so designated are areas which are census tracts and block
38 numbering areas which, as of the two thousand census, satisfy {both}
39 EITHER of the following criteria:
40 (A) AREAS THAT HAVE BOTH:
41 (i) {areas that have} a poverty rate of at least twenty percent for
42 the year to which the data relate;
43 (ii) {areas with} an unemployment rate of at least one and one-quarter
44 times the statewide unemployment rate for the year to which the data
45 relate{.}, OR;
46 (B) AREAS THAT HAVE A POVERTY RATE OF AT LEAST TWO TIMES THE POVERTY
47 RATE FOR THE COUNTY IN WHICH THE AREAS ARE LOCATED FOR THE YEAR TO WHICH
48 THE DATA RELATE, PROVIDED, HOWEVER, THAT A QUALIFIED SITE SHALL ONLY BE
49 DEEMED TO BE LOCATED IN AN ENVIRONMENTAL ZONE UNDER THIS SUBPARAGRAPH
50 (B) IF SUCH SITE WAS THE SUBJECT OF A BROWNFIELD SITE CLEANUP AGREEMENT
51 PURSUANT TO SECTION 27-1409 OF THE ENVIRONMENTAL CONSERVATION LAW THAT
52 WAS ENTERED INTO PRIOR TO SEPTEMBER FIRST, TWO THOUSAND SIX.
53 Such designation shall be made and a list of all such environmental
54 zones shall be established by {such} THE commissioner OF ECONOMIC DEVEL-
55 OPMENT no later than December thirty-first, two thousand {three} FOUR
56 PROVIDED, HOWEVER, THAT A QUALIFIED SITE SHALL ONLY BE DEEMED TO BE
S. 7726 41 A. 11802
1 LOCATED IN AN ENVIRONMENTAL ZONE UNDER SUBPARAGRAPH (B) OF THIS PARA-
2 GRAPH IF SUCH SITE WAS THE SUBJECT OF A BROWNFIELD SITE CLEANUP AGREE-
3 MENT PURSUANT TO SECTION 27-1409 OF THE ENVIRONMENTAL CONSERVATION LAW
4 THAT WAS ENTERED INTO PRIOR TO SEPTEMBER FIRST, TWO THOUSAND SIX.
5 (b) Remediated brownfield credit for real property taxes for qualified
6 sites. (1) Allowance of credit. A developer of a qualified site who or
7 which is subject to tax under article nine, nine-A, twenty-two, thirty-
8 two or thirty-three of this chapter, shall be allowed a credit against
9 such tax, pursuant to the provisions referenced in paragraph {eight}
10 NINE of this subdivision, for eligible real property taxes imposed on
11 such site.
12 (2) Amount of credit. The amount of the credit shall be twenty-five
13 percent of the product of (i) THE BENEFIT PERIOD FACTOR, (II) the
14 employment number factor, and {(ii)} (III) the eligible real property
15 taxes paid or incurred by the developer of the qualified site during the
16 taxable year (or the pro rata share of such taxes in the case of a part-
17 ner in a partnership or a shareholder in a New York S corporation),
18 except that if the real property which is the subject of the credit
19 provided for under this section is attributed to a qualified site
20 located in an environmental zone as defined in paragraph five of subdi-
21 vision (a) of this section, the amount of the credit shall be the prod-
22 uct of the {factor} FACTORS and taxes referred to in subparagraphs (i)
23 {and}, (ii) AND (III) of this paragraph. However, the amount of the
24 credit may not exceed the credit limitation set forth in paragraph {six}
25 SEVEN of this subdivision.
26 (3) BENEFIT PERIOD FACTOR. THE BENEFIT PERIOD FACTOR IS A NUMERICAL
27 VALUE CORRESPONDING WITH A BENEFIT PERIOD OF TEN CONSECUTIVE TAXABLE
28 YEARS COMMENCING IN THE TAXPAYER`S TAXABLE YEAR DURING WHICH THE CERTIF-
29 ICATE OF COMPLETION IS ISSUED FOR THE QUALIFIED SITE OR THE TAXPAYER`S
30 FIRST TAXABLE YEAR COMMENCING ON OR AFTER APRIL FIRST, TWO THOUSAND
31 FIVE, WHICHEVER IS LATER. THE BENEFIT PERIOD FACTORS ARE SET FORTH IN
32 THE FOLLOWING TABLE:
33 TAXABLE YEAR OF BENEFIT PERIOD: BENEFIT PERIOD FACTOR:
34 1-10 1.0
35 (4) Employment number factor. (i) The employment number factors are
36 set forth in the following table:
37 Average number of full-time Employment number factor:
38 employees employed by the
39 developer of a qualified site, plus
40 the average number of full-time
41 employees employed by a lessee
42 or lessees
43 of a portion of such qualified
44 site, where such employees are
45 employed at such site
46 during the taxable year:
47 At least 25 but less than 50 .25
48 At least 50 but less than 75 .50
49 At least 75 but less than 100 .75
50 At least 100 1.00
51 (ii) For purposes of this paragraph, the average number of full-time
52 employees, excluding general executive officers, employed by a developer
53 and a lessee at a qualified site during a taxable year or other applica-
54 ble period, shall be computed by ascertaining the number of such employ-
55 ees employed by the developer and such lessee on the thirty-first day of
56 March, the thirtieth day of June, the thirtieth day of September and the
S. 7726 42 A. 11802
1 thirty-first day of December during each taxable year or other applica-
2 ble period, by adding together the number of such individuals ascer-
3 tained on each of such dates and dividing the sum so obtained by the
4 number of such dates occurring within such taxable year or other appli-
5 cable period. Where the developer is a partner in a partnership or a
6 shareholder in a New York S corporation, the number of full-time employ-
7 ees of the partnership or the New York S corporation respectively, at
8 such qualified site, shall be used for purposes of this calculation.
9 {(4)} (5) Eligible real property taxes. The term "eligible real prop-
10 erty taxes" means taxes imposed on real property which consists of a
11 qualified site owned by the developer, provided such taxes become a lien
12 on the real property in a period during which the real property is a
13 qualified site. In addition, the term "eligible real property taxes"
14 includes payments in lieu of taxes by the developer, with respect to a
15 qualified site, to the state, a municipal corporation or a public bene-
16 fit corporation pursuant to a written agreement entered into between the
17 developer and the state, a municipal corporation or a public benefit
18 corporation{, provided further any such written agreement shall be
19 subject to approval or review by the office of real property services as
20 satisfying generally accepted norms and standards of real property tax
21 appraisals}. PROVIDED, HOWEVER, SUCH A PAYMENT IN LIEU OF TAXES SHALL
22 NOT CONSTITUTE ELIGIBLE REAL PROPERTY TAXES IN ANY TAXABLE YEAR TO THE
23 EXTENT THAT SUCH PAYMENT EXCEEDS THE PRODUCT OF (A) THE GREATER OF (I)
24 THE BASIS FOR FEDERAL INCOME TAX PURPOSES, DETERMINED ON THE DATE THE
25 TAXPAYER BECOMES A DEVELOPER AS DEFINED UNDER THIS SECTION, OF REAL
26 PROPERTY, INCLUDING BUILDINGS AND STRUCTURAL COMPONENTS OF BUILDINGS,
27 OWNED BY THE DEVELOPER AND LOCATED ON A QUALIFIED SITE WITH RESPECT TO
28 WHICH THE TAXPAYER IS A DEVELOPER, OR (II) THE BASIS FOR FEDERAL INCOME
29 TAX PURPOSES OF SUCH REAL PROPERTY DESCRIBED IN CLAUSE (I) OF THIS
30 SUBPARAGRAPH ON THE LAST DAY OF THE TAXABLE YEAR, AND (B) THE ESTIMATED
31 EFFECTIVE FULL VALUE TAX RATE WITHIN THE COUNTY IN WHICH SUCH PROPERTY
32 IS LOCATED, AS MOST RECENTLY REPORTED TO THE COMMISSIONER BY THE SECRE-
33 TARY OF THE STATE BOARD OF REAL PROPERTY SERVICES, OR HIS OR HER DESIG-
34 NEE. THE STATE BOARD SHALL ANNUALLY CALCULATE ESTIMATED AND EFFECTIVE
35 FULL VALUE TAX RATES WITHIN EACH COUNTY FOR THIS PURPOSE BASED UPON THE
36 MOST CURRENT INFORMATION AVAILABLE TO IT IN RELATION TO COUNTY, CITY,
37 TOWN, VILLAGE AND SCHOOL DISTRICT TAXES. Provided further, where the
38 amount of the credit determined under paragraph two of this subdivision
39 is the total product of the {factor} FACTORS and tax specified therein,
40 the term "eligible real property taxes" under this paragraph shall apply
41 only to taxes imposed on real property which is attributed to a quali-
42 fied site located in an environmental zone. Where the developer is a
43 partner in a partnership or a shareholder in a New York S corporation,
44 such real property shall be owned by the partnership or the New York S
45 corporation, respectively.
46 {(5)} (6) Credit recapture. Where a developer`s eligible real property
47 taxes which were the basis for the allowance of the credit provided for
48 under this subdivision are subsequently reduced as a result of a final
49 order in any proceeding under article seven of the real property tax law
50 or other provision of law, the taxpayer shall add back, in the taxable
51 year in which such final order is issued, the excess of (i) the amount
52 of credit originally allowed for a taxable year over (ii) the amount of
53 credit determined based upon the reduced eligible real property taxes.
54 If such final order reduces real property taxes for more than one year,
55 the taxpayer must determine how much of such reduction is attributable
56 to each year covered by such final order and calculate the amount of
S. 7726 43 A. 11802
1 credit which is required by this paragraph to be recaptured for each
2 year based on such reduction.
3 {(6)} (7) Credit limitation. The credit limitation shall be the prod-
4 uct of (i) ten thousand dollars and (ii) the average number of full-time
5 employees employed by the developer of a qualified site and a lessee or
6 lessees of a portion of such qualified site during the taxable year, as
7 such average is computed under subparagraph (ii) of paragraph {three}
8 FOUR of this subdivision.
9 {(7)} (8) Credit option. If the qualified site is located in whole or
10 in part in an area designated as an empire zone pursuant to article
11 eighteen-B of the general municipal law, and a taxpayer meets the eligi-
12 bility requirements for both the credit provided for under this section
13 and the QEZE credit for real property taxes provided for under section
14 fifteen of this article, with respect to all or part of such site, such
15 taxpayer shall not be allowed to claim both such credits. The taxpayer
16 shall be required, in the first taxable year such taxpayer is allowed to
17 claim a credit under this section, to elect whether to claim the credit
18 provided for under this section or the credit provided for under section
19 fifteen of this article. Such election shall be made with the filing of
20 the return or report required under article nine, nine-A, twenty-two,
21 thirty-two or thirty-three of this chapter, whichever is applicable, for
22 such taxable year. Such election shall apply to and be binding in each
23 subsequent taxable year applicable to the credit provided for under
24 either this section or section fifteen of this article. A taxpayer who
25 or which has been allowed a credit under section fifteen of this arti-
26 cle, in a taxable year preceding the first taxable year such taxpayer is
27 allowed to claim a credit under this section, shall not be precluded
28 from making the election provided for in this paragraph.
29 {(8)} (9) Cross-references. For application of the credit provided for
30 in this subdivision, see the following provisions of this chapter:
31 (i) Article 9: Section 187-h.
32 (ii) Article 9-A: Section 210: subdivision 34.
33 (iii) Article 22: Section 606: subsections (i) and (ee).
34 (iv) Article 32: Section 1456: subsection (r).
35 (v) Article 33: Section 1511: subdivision (v).
36 S 5. Subdivision 1 of section 187-h of the tax law, as added by
37 section 13 of part H of chapter 1 of the laws of 2003, is amended to
38 read as follows:
39 1. Allowance of credit. A taxpayer shall be allowed a credit, to be
40 computed as provided in subdivision (b) of section {twenty-five} TWEN-
41 TY-TWO of this chapter, against the taxes imposed by sections one
42 hundred eighty-three, one hundred eighty-four and one hundred eighty-
43 five of this article. Provided, however, that the amount of such credit
44 allowed against the tax imposed by section one hundred eighty-four of
45 this article shall be the excess of the amount of such credit over the
46 amount of any credit allowed by this section against the tax imposed by
47 section one hundred eighty-three of this article.
48 S 6. Paragraph (a) of subdivision 34 of section 210 of the tax law, as
49 added by section 14 of part H of chapter 1 of the laws of 2003, is
50 amended to read as follows:
51 (a) Allowance of credit. A taxpayer which is a developer of a quali-
52 fied site shall be allowed a credit for eligible real property taxes, to
53 be computed as provided in subdivision (b) of section {twenty-five}
54 TWENTY-TWO of this chapter, against the tax imposed by this article.
55 For purposes of this subdivision, the terms "qualified site" and "devel-
56 oper" shall have the same meaning as set forth in paragraphs two and
S. 7726 44 A. 11802
1 {five} THREE, respectively, of subdivision (a) of section {twenty-five}
2 TWENTY-TWO of this chapter.
3 S 7. Paragraph 1 of subsection (ee) of section 606 of the tax law, as
4 added by section 16 of part H of chapter 1 of the laws of 2003, is
5 amended to read as follows:
6 (1) Allowance of credit. A taxpayer which is a developer of a quali-
7 fied site shall be allowed a credit for eligible real property taxes, to
8 be computed as provided in subdivision (b) of section {twenty-five}
9 TWENTY-TWO of this chapter, against the tax imposed by this article.
10 For purposes of this subsection, the terms "qualified site" and "devel-
11 oper" shall have the same meaning as set forth in paragraphs two and
12 {five} THREE, respectively, of subdivision (a) of section {twenty-five}
13 TWENTY-TWO of this chapter.
14 S 8. Paragraph 1 of subsection (r) of section 1456 of the tax law, as
15 added by section 17 of part H of chapter 1 of the laws of 2003, is
16 amended to read as follows:
17 (1) Allowance of credit. A taxpayer which is a developer of a quali-
18 fied site shall be allowed a credit for eligible real property taxes, to
19 be computed as provided in subdivision (b) of section {twenty-five}
20 TWENTY-TWO of this chapter, against the tax imposed by this article.
21 For purposes of this subsection, the terms "qualified site" and "devel-
22 oper" shall have the same meaning as set forth in paragraphs two and
23 {five} THREE, respectively, of subdivision (a) of section {twenty-five}
24 TWENTY-TWO of this chapter.
25 S 9. Paragraph 1 of subdivision (v) of section 1511 of the tax law, as
26 added by section 18 of part H of chapter 1 of the laws of 2003, is
27 amended to read as follows:
28 (1) Allowance of credit. A taxpayer which is a developer of a quali-
29 fied site shall be allowed a credit for eligible real property taxes, to
30 be computed as provided in subdivision (b) of section {twenty-five}
31 TWENTY-TWO of this chapter, against the tax imposed by this article.
32 For purposes of this subdivision, the terms "qualified site" and "devel-
33 oper" shall have the same meaning as set forth in paragraphs two and
34 {five} THREE, respectively, of subdivision (a) of section {twenty-five}
35 TWENTY-TWO of this chapter.
36 S 10. Subdivisions (a), (b), (c) and (d) of section 23 of the tax law,
37 as added by section 19 of part H of chapter 1 of the laws of 2003, are
38 amended to read as follows:
39 (a) Allowance of credit. General. A taxpayer subject to tax under
40 article nine, nine-A, twenty-two, thirty-two or thirty-three of this
41 chapter shall be allowed a credit against such tax, pursuant to the
42 provisions referenced in subdivision (e) of this section. The amount of
43 such credit shall be equal to the lesser of thirty thousand dollars or
44 fifty percent of the premiums paid on or after the date of the brown-
45 field site CLEANUP agreement executed by the taxpayer and the department
46 of environmental conservation pursuant to section {27-1422} 27-1409 of
47 the environmental conservation law by the taxpayer for environmental
48 remediation insurance issued with respect to a qualified site.
49 (b) Definitions. As used in this section, the following terms shall
50 have the following meanings:
51 (1) Qualified site. A "qualified site" is a site with respect to which
52 a {certification} CERTIFICATE of completion has been issued to the
53 taxpayer by the commissioner of environmental conservation pursuant to
54 section 27-1419 of the environmental conservation law TO AN "APPLICANT"
55 AS THAT TERM IS DEFINED IN SUBDIVISION ONE OF SECTION 27-1405 OF THE
56 ENVIRONMENTAL CONSERVATION LAW.
S. 7726 45 A. 11802
1 (2) {Remediation certificate} CERTIFICATE OF COMPLETION. {The term
2 "remediation certificate" shall refer to the certification of completion
3 which is} A "CERTIFICATE OF COMPLETION" issued by the commissioner of
4 environmental conservation pursuant to section 27-1419 of the environ-
5 mental conservation law.
6 (3) Environmental remediation insurance. The term "environmental reme-
7 diation insurance" shall mean that type of insurance described in
8 section three thousand four hundred forty-seven of the insurance law.
9 (c) The credit provided for in subdivision one of this section shall
10 be allowed for the taxable year in which the {remediation} certificate
11 OF COMPLETION is issued to the taxpayer. Such credit shall be allowed
12 only once with respect to a particular {remediation} certificate OF
13 COMPLETION.
14 (d) If the {remediation} certificate OF COMPLETION issued to the
15 taxpayer with respect to a qualified site is revoked by a determination
16 issued pursuant to section 27-1419 of the environmental conservation
17 law, the amount of credit allowed by this section shall be added back in
18 the taxable year in which such determination is final and no longer
19 subject to judicial review.
20 S 11. Subsection (b) of section 3447 of the insurance law, as added
21 by section 30 of part H of chapter 1 of the laws of 2003, is amended to
22 read as follows:
23 (b) In order to qualify for the environmental remediation insurance
24 tax credit provided for under section twenty-three of the tax law, the
25 insurance must be written pursuant to the provisions of paragraph thir-
26 teen or fourteen of subsection (a) of section one thousand one hundred
27 thirteen of this chapter and contain ANY OF the following coverages or
28 substantially similar coverages OR COMBINATION OF COVERAGES:
29 (1) coverage for the costs of on-site clean-up of pre-existing
30 pollution conditions from the insured property which are outside the
31 scope of the remedial work plan pursuant to section {27-1419} 27-1411 of
32 the environmental conservation law for such insured property;
33 (2) coverage for third-party claims for on-site bodily injury and
34 property damage resulting from pre-existing pollution conditions outside
35 the scope of such remedial work plan for the insured property;
36 (3) coverage which caps clean-up costs relating to such remedial work
37 plan; and
38 (4) coverage for the costs of state re-openers pursuant to section
39 {27-1419} 27-1421 of the environmental conservation law or modifications
40 to such remedial work plan to fill any gap in any {state-issued covenant
41 not to sue issued} LIABILITY LIMITATION PROVIDED pursuant to section
42 {27-1419} 27-1421 of the environmental conservation law for environ-
43 mental conditions.
44 S 12. Section 33 of part H of chapter 1 of the laws of 2003, amending
45 the tax law relating to brownfield redevelopment tax credits, remediated
46 brownfield credit for real property taxes for qualified sites and envi-
47 ronmental remediation insurance credits, is amended to read as follows:
48 S 33. This act shall take effect immediately, except that sections one
49 through twenty-nine of this act shall apply to taxable years beginning
50 on or after April 1, 2005; provided, however, that the IMB credit for
51 energy taxes under subsection (t-1) of section 606 of the tax law
52 contained in sections four, fifteen and twenty-three of this act shall
53 expire on the same date as provided in subdivision (a) of section 49 of
54 part Y of chapter 63 of the laws of 2000. WHERE ANY PROVISION OF THIS
55 ACT PROVIDES THAT A CREDIT SHALL BE ALLOWED FOR THE TAXABLE YEAR IN
56 WHICH THE EFFECTIVE DATE OF THE CERTIFICATE OF COMPLETION OCCURS OR A
S. 7726 46 A. 11802
1 CREDIT SHALL BE ALLOWED FOR THE TAXABLE YEAR IN WHICH CERTAIN PROPERTY
2 IS PLACED IN SERVICE, WHERE THE EFFECTIVE DATE OF THE CERTIFICATE OF
3 COMPLETION OR THE DATE THE PROPERTY IS PLACED IN SERVICE OCCURS PRIOR TO
4 A TAXABLE YEAR BEGINNING ON OR AFTER APRIL 1, 2005, FOR PURPOSES OF
5 BEING ALLOWED A CREDIT, SUCH EFFECTIVE DATE OF THE CERTIFICATE OF
6 COMPLETION AND SUCH DATE THE PROPERTY IS PLACED IN SERVICE SHALL BE
7 TREATED AS IF SUCH DATE OCCURRED IN THE FIRST TAXABLE YEAR OCCURRING ON
8 OR AFTER APRIL 1, 2005.
9 S 13. This act shall take effect immediately and shall apply to taxa-
10 ble years beginning on or after April 1, 2005.
11 PART I
12 Section 1. Subdivision 2 of section 17-1009 of the environmental
13 conservation law, as amended by section 2 of chapter 442 of the laws of
14 2001, is amended to read as follows:
15 2. {Within one year of the promulgation of the rules and regulations
16 referred to in subdivision one of this section, all owners shall regis-
17 ter the facility with the department} ALL OWNERS SHALL REGISTER THE
18 FACILITY WITH THE DEPARTMENT. The department is authorized to assess a
19 fee according to a schedule based on the size and type of {the} facili-
20 ty, not to exceed {two} FIVE hundred {fifty} dollars per facility. Such
21 fee shall be paid at the time of registration or registration renewal.
22 REGISTRATION SHALL BE RENEWED EVERY FIVE YEARS OR WHENEVER TITLE TO A
23 FACILITY IS TRANSFERRED, WHICHEVER OCCURS FIRST. In addition to such
24 registration requirements and pursuant to leak detection requirements
25 set forth in section 17-1005 of this title, notwithstanding any other
26 provision of law, rule or regulation, the department shall duly notify
27 the facility owner of the requirement for such owner to perform the
28 required tightness test on a petroleum bulk storage tank no less than
29 forty-five days prior to the date of the test expiration on the tank.
30 {Registration shall be renewed every five years or whenever title to a
31 facility is transferred, whichever first occurs.} ALL FEES COLLECTED
32 PURSUANT TO THIS SUBDIVISION SHALL BE DEPOSITED IN THE NEW YORK ENVIRON-
33 MENTAL PROTECTION AND SPILL COMPENSATION FUND ESTABLISHED PURSUANT TO
34 SECTION ONE HUNDRED SEVENTY-NINE OF THE NAVIGATION LAW. THE OWNER MUST
35 SUBMIT, WITH EACH APPLICATION FOR REGISTRATION OR REGISTRATION RENEWAL,
36 A FIVE-YEAR FEE AS FOLLOWS:
37 COMBINED STORAGE CAPACITY AT FACILITY 5-YEAR FEE
38 GREATER THAN 1,100 TO 2,000 GALLONS $100 PER FACILITY
39 GREATER THAN 2,000 GALLONS TO
40 LESS THAN 5,000 GALLONS $300 PER FACILITY
41 5,000 GALLONS TO LESS THAN
42 400,000 GALLONS $500 PER FACILITY
43 S 2. Paragraph (a) of subdivision 2 of section 179 of the navigation
44 law, as amended by chapter 65 of the laws of 1991, is amended to read as
45 follows:
46 (a) An account which shall be credited with all license fees and
47 penalties collected pursuant to paragraph (b) of subdivision one and
48 paragraph (a) of subdivision four of section one hundred seventy-four of
49 this article, penalties collected pursuant to paragraph (b) of subdivi-
50 sion four of section one hundred seventy-four-a of this article,
51 {moneys} MONEY collected pursuant to section one hundred eighty-seven of
52 this article, {and} all penalties collected pursuant to section one
53 hundred ninety-two of this article, AND REGISTRATION FEES COLLECTED
S. 7726 47 A. 11802
1 PURSUANT TO SUBDIVISION TWO OF SECTION 17-1009 OF THE ENVIRONMENTAL
2 CONSERVATION LAW.
3 S 3. Subdivision 3 of section 362 of chapter 83 of the laws of 1995,
4 amending the environmental conservation law and other laws relating to
5 the registration of petroleum bulk storage facilities, as amended by
6 section 2 of part E of chapter 413 of the laws of 1999, is amended to
7 read as follows:
8 3. Sections fifteen through seventeen of this act shall take effect
9 immediately and shall be deemed to have been in full force and effect on
10 and after April 1, 1995, and SECTIONS FIFTEEN AND SIXTEEN OF THIS ACT
11 shall expire and be deemed repealed April 1, 2004;
12 S 4. Notwithstanding the provisions of article 5 of the general
13 construction law, the provisions of paragraph (e) of subdivision 2 of
14 section 186 of the navigation law, as added by section 17 of chapter 83
15 of the laws of 1995, are hereby revived and shall continue in full force
16 and effect as they existed on March 31, 2004, pursuant to subdivision 3
17 of section 362 of chapter 83 of the laws of 1995, as amended by section
18 three of this act.
19 S 5. Paragraph c of subdivision 3 of section 27-0923 of the environ-
20 mental conservation law, as added by chapter 38 of the laws of 1985, is
21 amended to read as follows:
22 c. For the purpose of this section, generation of hazardous waste
23 shall not include retrieval or creation of hazardous waste which must be
24 disposed of {due to remediation of an inactive hazardous waste disposal
25 site in New York state as defined in section 27-1301 of this chapter}
26 UNDER AN ORDER OF OR AGREEMENT WITH THE DEPARTMENT PURSUANT TO TITLE
27 THIRTEEN OR TITLE FOURTEEN OF THIS ARTICLE OR UNDER A CONTRACT WITH THE
28 DEPARTMENT PURSUANT TO TITLE FIVE OF ARTICLE FIFTY-SIX OF THIS CHAPTER.
29 S 6. Subparagraph (v) of paragraph f of subdivision 1 of section
30 72-0402 of the environmental conservation law, as amended by chapter 62
31 of the laws of 1989, is amended and two new subparagraphs (vi) and (vii)
32 are added to read as follows:
33 (v) under permit or order requiring corrective action pursuant to
34 title nine of article twenty-seven of this chapter or the Resource
35 Conservation and Recovery Act (42 U.S.C. 6901 et seq.); OR
36 (VI) UNDER A BROWNFIELD SITE CLEANUP AGREEMENT WITH THE DEPARTMENT
37 PURSUANT TO SECTION 27-1409 OF THIS CHAPTER; OR
38 (VII) UNDER AN ENVIRONMENTAL RESTORATION PROJECT STATE ASSISTANCE
39 CONTRACT WITH THE DEPARTMENT PURSUANT TO SECTION 56-0503 OF THIS
40 CHAPTER.
41 S 7. Subdivision 1 of section 72-0403 of the environmental conserva-
42 tion law is amended by adding two new paragraphs m and n to read as
43 follows:
44 M. NO FEE SHALL BE PAYABLE FOR WASTE RESULTING FROM SERVICES WHICH ARE
45 PROVIDED (I) UNDER A CONTRACT WITH THE DEPARTMENT, OR WITH THE DEPART-
46 MENT`S APPROVAL AND IN COMPLIANCE WITH DEPARTMENT REGULATIONS, OR PURSU-
47 ANT TO AN ORDER OF THE DEPARTMENT, THE UNITED STATES ENVIRONMENTAL
48 PROTECTION AGENCY OR A COURT, RELATED TO THE CLEANUP OR REMEDIATION OF A
49 HAZARDOUS MATERIALS OR HAZARDOUS WASTE SPILL, DISCHARGE, OR SURFICIAL
50 CLEANUP, PURSUANT TO THIS CHAPTER, OTHER THAN SECTION 27-1313 OF THIS
51 CHAPTER OR A REMOVAL ACTION PURSUANT TO THE COMPREHENSIVE ENVIRONMENTAL
52 RESPONSE, COMPENSATION AND LIABILITY ACT (42 U.S.C. 9601 ET SEQ.); OR
53 (II) UNDER A CONTRACT FOR, OR WITH THE DEPARTMENT`S APPROVAL AND IN
54 COMPLIANCE WITH DEPARTMENT REGULATIONS FOR, THE CLEANUP AND REMOVAL OF A
55 PETROLEUM SPILL OR DISCHARGE, PURSUANT TO SUBDIVISION SEVEN OF SECTION
56 ONE HUNDRED SEVENTY-SIX OF THE NAVIGATION LAW; OR
S. 7726 48 A. 11802
1 (III) UNDER THE ORDER OF A COURT, THE DEPARTMENT OR THE DEPARTMENT OF
2 HEALTH, OR THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY RELATED TO
3 AN INACTIVE HAZARDOUS WASTE DISPOSAL SITE PURSUANT TO SECTION 27-1313 OF
4 THIS CHAPTER, SECTION THIRTEEN HUNDRED EIGHTY-NINE-B OF THE PUBLIC
5 HEALTH LAW, OR THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION
6 AND LIABILITY ACT (42 U.S.C. 9601 ET SEQ.); OR
7 (IV) VOLUNTARILY AND WITHOUT EXPECTATION OF MONETARY COMPENSATION IN
8 ACCORDANCE WITH SUBDIVISION ONE OF SECTION 27-1321 OF THIS CHAPTER; OR
9 (V) UNDER PERMIT OR ORDER REQUIRING CORRECTIVE ACTION PURSUANT TO
10 TITLE NINE OF ARTICLE TWENTY-SEVEN OF THIS CHAPTER OR THE RESOURCE
11 CONSERVATION AND RECOVERY ACT (42 U.S.C. 6901 ET SEQ.); OR
12 (VI) UNDER A BROWNFIELD SITE CLEANUP AGREEMENT WITH THE DEPARTMENT
13 PURSUANT TO SECTION 27-1409 OF THIS CHAPTER; OR
14 (VII) UNDER AN ENVIRONMENTAL RESTORATION PROJECT STATE ASSISTANCE
15 CONTRACT WITH THE DEPARTMENT PURSUANT TO SECTION 56-0503 OF THIS CHAP-
16 TER.
17 N. NOTWITHSTANDING ANY OTHER PROVISION OF THIS SECTION, NO FEE SHALL
18 BE PAYABLE FOR THE GENERATION OF UNIVERSAL WASTES. FOR PURPOSES OF THIS
19 PARAGRAPH, "UNIVERSAL WASTES" SHALL MEAN THOSE DEFINED AND LISTED IN
20 REGULATIONS PROMULGATED PURSUANT TO THIS TITLE, PROVIDED THAT SUCH
21 WASTES ARE REGULATED CONSISTENT WITH RULES ADOPTED BY THE ADMINISTRATOR
22 PURSUANT TO RCRA FOR THE MANAGEMENT OF UNIVERSAL WASTES.
23 S 8. This act shall take effect immediately and shall be deemed to
24 have been in full force and effect on and after April 1, 2004; provided,
25 however, that sections five, six and seven of this act shall be deemed
26 to have been in full force and effect on and after the date on which
27 chapter 1 of the laws of 2003 amending the environmental conservation
28 law relating to enacting the "brownfield cleanup program" and in
29 relation to environmental easements became law.
30 S 2. Severability clause. If any clause, sentence, paragraph, subdivi-
31 sion, section or part of this act shall be adjudged by any court of
32 competent jurisdiction to be invalid, such judgment shall not affect,
33 impair or invalidate the remainder thereof, but shall be confined in its
34 operation to the clause, sentence, paragraph, subdivision, section or
35 part thereof directly involved in the controversy in which such judgment
36 shall have been rendered. It is hereby declared to be the intent of the
37 legislature that this act would have been enacted even if such invalid
38 provisions had not been included therein.
39 S 3. This act shall take effect immediately; provided, however, that
40 the applicable effective date of parts A, B, D, E, F, G, H and I of this
41 act shall be as specifically set forth in the last section of such
42 parts.
.SO DOC C 7726/11802 *END* BTXT 2003
|
