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 |
