ny-brownfields.com

Brownfield Act--Technical Amendments

A11802 and S7726 (passed Senate and Assembly 8/11/04)

New York State Assembly Logo
Monday, August 23, 2004
Bill Text   -   A11802
Back | New York State Bill Search | Assembly Home
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     
Contact Webmaster