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STATE OF NEW YORK
________________________________________________________________________
7507
2003-2004 Regular Sessions
IN ASSEMBLY
March 25, 2003
___________
Introduced by M. of A. DiNAPOLI, GRANNIS, LOPEZ, DESTITO, AUBRY, TONKO,
HOYT, COLTON, BRADLEY, WEISENBERG, SIDIKMAN -- Multi-Sponsored by --
M. of A. AUBERTINE, BING, BOYLAND, BRENNAN, CANESTRARI, CLARK,
A. COHEN, COOK, GALEF, GLICK, GOTTFRIED, GREEN, GREENE, JACOBS,
KARBEN, LAFAYETTE, LAVELLE, MAGEE, McENENY, O'DONNELL, ORTIZ, PAULIN,
PHEFFER, P. RIVERA, SEDDIO, SMITH, TOWNS -- read once and referred to
the Committee on Environmental Conservation
AN ACT to amend the environmental conservation law, in relation to
enacting the brownfields restoration act; to amend the real property
law, in relation to recording declarations of restrictions upon quali-
fied real property pursuant to a remedial action plan requirement of
the brownfield site cleanup agreement; to amend the real property tax
law, in relation to conducting an environmental investigation; to
amend the New York state urban development corporation act, in
relation to giving preference to the award of appropriated funds to
real properties designated in redevelopment plans, in relation to
brownfield grants; to amend the environmental conservation law, in
relation to environmental easements; to amend the environmental
conservation law, in relation to environmental restoration projects
for brownfield redevelopment; to amend the state finance law, in
relation to the deposit of certain moneys into the hazardous waste
remedial fund; to amend the public authorities law, in relation to the
financing of hazardous waste site remediation projects and groundwater
protection projects; to amend the private housing finance law and the
public housing law, in relation to preferences with respect to certain
projects; to amend the general municipal law, in relation to brown-
field business enterprise designation; to amend the tax law, in
relation to establishing a brownfields remediation program; and
repealing sections 27-1309, 27-1316 and 27-1317 of the environmental
conservation law relating to inactive hazardous substance waste
disposal sites
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD14356-03-3
A. 7507 2
The People of the State of New York, represented in Senate and Assem-
bly, do enact as follows:
1 Section 1. Article 27 of the environmental conservation law is amended
2 by adding a new title 12 to read as follows:
3 TITLE 12
4 BROWNFIELDS RESTORATION ACT
5 Section 27-1201. Short title.
6 27-1203. Declaration of policy and findings of fact.
7 27-1205. Definitions.
8 27-1207. Brownfield site cleanup agreement.
9 27-1209. Remedial goal and remedy selection factors.
10 27-1211. Remedial program.
11 27-1213. Community participation.
12 27-1215. Citizen technical assistance grants.
13 27-1217. Certification of completion.
14 27-1219. Covenant not to sue.
15 27-1221. Change of use; certification of use; and departmental
16 database.
17 27-1223. Access to brownfield sites.
18 27-1225. Rules and regulations.
19 §§ 27-1201. Short title.
20 This title shall be known and may be cited as the "brownfields resto-
21 ration act".
22 §§ 27-1203. Declaration of policy and findings of fact.
23 The legislature hereby finds that there are thousands of abandoned and
24 likely contaminated properties that threaten the health and vitality of
25 the communities they burden, and that these sites, known as brownfields,
26 are also contributing to sprawl development and loss of open space. It
27 is therefore declared that, to advance the policy of the state of New
28 York to conserve, improve, and protect its natural resources and envi-
29 ronment and control water, land, and air pollution in order to enhance
30 the health, safety, and welfare of the people of the state and their
31 overall economic and social well being, it is appropriate to enact this
32 act to encourage persons to voluntarily remediate brownfield sites for
33 reuse and redevelopment by establishing within the department a new
34 regulatory program that expands eligibility, expedites the administra-
35 tive process, defines the remedies necessary to cleanup brownfield sites
36 with similar types of contamination, and provides a state liability
37 release upon completion and financial incentives to further encourage
38 cleanup and redevelopment of brownfield sites. It is the intent of the
39 legislature that the provisions of this act shall not be construed as
40 limiting or otherwise affecting any authority conferred upon the depart-
41 ment by any other provision of law. The remedial goal of the brownfield
42 restoration program shall be the complete and permanent cleanup of
43 contaminated sites that will allow such sites to be used for any purpose
44 without restriction and without reliance on the long-term employment of
45 institutional or engineering controls, and includes the long-term resto-
46 ration of groundwater to drinking water quality.
47 §§ 27-1205. Definitions.
48 1. "Active groundwater remedial measures" shall mean any form of
49 groundwater remediation which requires physical action to alter the
50 condition of groundwater contamination. Active groundwater remedial
51 measures include, but are not limited to, pumping, air sparging, bail-
52 ing, skimming, in-well air stripping, and bioremediation involving the
53 addition of nutrients and/or organisms below the water table.
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1 2. "Act of God" means an unanticipated grave natural disaster or other
2 natural phenomenon of an exceptional, inevitable, and irresistible char-
3 acter, the effects of which could not have been prevented or avoided by
4 the exercise of due care or foresight.
5 3. (a) "Affirmative defenses" shall mean a person otherwise liable who
6 can establish by a preponderance of the evidence that the significant
7 threat to the environment attributable to hazardous waste disposed at an
8 inactive hazardous waste disposal site was caused solely by: (1) an act
9 of God; (2) an act of war; or (3) an act or omission of a third party
10 other than an employee or agent of such person, or than one whose act or
11 omission occurs in connection with a contractual relationship existing
12 directly or indirectly with such person (except where the sole contrac-
13 tual arrangement arises from a published tariff and acceptance for
14 carriage by a common carrier or rail), if such person establishes by a
15 preponderance of the evidence that: (i) such person exercised due care
16 with respect to the hazardous waste concerned, taking into consideration
17 the characteristics of such hazardous waste, in light of all relevant
18 facts and circumstances, and (ii) took precautions against foreseeable
19 acts or omissions of any such third party and the consequences that
20 could foreseeably result from such acts or omissions; or any combination
21 of them.
22 (b) For purposes of this section, (1) the term "act of God" means an
23 unanticipated grave natural disaster or other natural phenomenon of an
24 exceptional, inevitable, and irresistible character, the effects of
25 which could not have been prevented or avoided by the exercise of due
26 care or foresight, (2) the term, "contractual relationship," includes,
27 but is not limited to, land contracts, deeds, or other instruments
28 transferring title or possession, unless the real property on which the
29 site concerned is located was acquired by such person after the disposal
30 or placement of the hazardous waste on, in, or at such site, and such
31 person establishes one or more of the circumstances described in clause
32 (i), (ii), or (iii) of this subparagraph by a preponderance of the
33 evidence:
34 (i) At the time such person acquired the site such person did not know
35 and has no reason to know that any hazardous waste which is the subject
36 of the significant threat determination was disposed of on, in, or at
37 the site; or
38 (ii) Such person is a government entity which acquired the site by
39 escheat, or through any other involuntary transfer or acquisition or
40 through the exercise of eminent domain authority by purchase or condem-
41 nation; or
42 (iii) Such person acquired the site by inheritance or bequest. In
43 addition to establishing the foregoing, the person must establish that
44 he or she has satisfied the requirements of clauses (i) and (ii) of
45 subparagraph three of paragraph (a) of this subdivision, provides full
46 cooperation, assistance, and site access to the persons that are author-
47 ized to conduct remedial actions at the site (including the cooperation
48 and access necessary for the installation, integrity, operation, and
49 maintenance of any complete or partial remedial action at the site), is
50 in compliance with any land use restrictions established or relied on in
51 connection with the remedial action at a site and does not impede the
52 effectiveness or integrity of any institutional and/or engineering
53 control employed at the site in connection with a remedial action.
54 (c)(1) To establish that the person had no reason to know of the
55 matter described in clause (i) of subparagraph two of paragraph (b) of
56 this subdivision, the person must demonstrate to a court that:
A. 7507 4
1 (i) on or before the date on which the person acquired the site, the
2 person carried out all appropriate inquires, as provided in subpara-
3 graphs two and four of this paragraph, into the previous ownership and
4 uses of the site in accordance with generally accepted good commercial
5 and customary standards and practices; and
6 (ii) the person took reasonable steps to:
7 (A) stop any continuing release;
8 (B) prevent any threatened future release; and
9 (C) prevent or limit any human, environmental, or natural resource
10 exposure to any previously released hazardous waste.
11 (2) Not later than one year after the effective date of this section,
12 the commissioner shall by regulation establish standards and practices
13 for the purpose of satisfying the requirement to carry out all appropri-
14 ate inquires under subparagraph one of this paragraph.
15 (3) In promulgating regulations that establish the standards and prac-
16 tices referred to in subparagraph two of this paragraph, the commission-
17 er shall include each of the following:
18 (i) the results of an inquiry by an environmental professional.
19 (ii) interviews with past and present owners, operators, and occupants
20 of the site for the purpose of gathering information regarding the
21 potential for contamination at the site.
22 (iii) reviews of historical sources, such as chain of title documents,
23 aerial photographs, building department records, and land use records,
24 to determine previous uses and occupancies of the real property since
25 the property was first developed.
26 (iv) searches for recorded environmental cleanup liens against the
27 site that are filed under federal, state, or local law.
28 (v) reviews of federal, state, and local government records, waste
29 disposal records, underground storage tank records, and hazardous waste
30 handling, generation, treatment, disposal, and spill records, concerning
31 contamination at or near the site.
32 (vi) visual inspections of the site and of adjoining properties.
33 (vii) specialized knowledge or experience on the part of the person.
34 (viii) the relationship of the purchase price to the value of the
35 property, if the property was not contaminated.
36 (ix) commonly known or reasonably ascertainable information about the
37 property.
38 (x) the degree of obviousness of the presence or likely presence of
39 contamination at the property, and the ability to detect the contam-
40 ination by appropriate investigation.
41 (4)(i) With respect to property purchased before May thirty-first,
42 nineteen hundred ninety-seven, in making a determination with respect to
43 a person described in subparagraph one of this paragraph a court shall
44 take into account:
45 (A) any specialized knowledge or experience on the part of the person;
46 (B) the relationship of the purchase price to the value of the proper-
47 ty, if the property was not contaminated;
48 (C) commonly known or reasonably ascertainable information about the
49 property;
50 (D) the obviousness of the presence or likely presence of contam-
51 ination at the property; and
52 (E) the ability of the person to detect the contamination by appropri-
53 ate inspection.
54 (ii) With respect to property purchased on or after May thirty-first,
55 nineteen hundred ninety-seven, and until the commissioner promulgates
56 the regulations described in subparagraph two of this paragraph, the
A. 7507 5
1 procedures of the American Society for Testing and Materials, including
2 the document know as 'Standard E1527-97', entitled 'Standard Practice
3 for Environmental Site Assessment: Phase 1 Environmental Site Assessment
4 Process', shall satisfy the requirements in subparagraph one of this
5 paragraph.
6 (5) In the case of property for residential use or other similar use
7 purchased by a nongovernmental or noncommercial entity, a site
8 inspection and title search that reveal no basis for further investi-
9 gation shall be considered to satisfy the requirements of this subpara-
10 graph.
11 (d) Nothing in this subdivision shall diminish the liability of any
12 previous owner or operator of the site who would otherwise be liable
13 under this title. Notwithstanding this subdivision, if such person
14 obtained actual knowledge of the release or threatened release of a
15 hazardous waste at the site when such person owned the site and then
16 subsequently transferred ownership of the site to another person without
17 disclosing such knowledge, such person shall be treated as a person
18 responsible for the disposal of hazardous waste at the site, and no
19 defense under this subdivision shall be available to such person. Noth-
20 ing in this subdivision shall affect the liability under this section of
21 a person who, by any act or omission, caused or contributed to the
22 release or threatened release of a hazardous waste which is the subject
23 of such proceeding relating to such site.
24 4. "Applicant" shall mean any person who the department determines is
25 eligible to enter into and who executes a brownfield site cleanup agree-
26 ment pursuant to section 27-1207 of this title for the purpose of
27 completing a brownfield site remedial program on a brownfield site.
28 5. "Brownfield site" shall mean a site which is an abandoned or under-
29 utilized real property where real or suspected environmental contam-
30 ination may have inhibited redevelopment. Such term shall not include
31 real property:
32 (a) listed in the registry of inactive hazardous waste sites under
33 section 27-1305 of this article at the time of application to this
34 program and given a classification as described in subparagraph one or
35 two of paragraph b of subdivision four of such section 27-1305;
36 (b) listed on the national priorities list established under authority
37 of 42 U.S.C. section 9605;
38 (c) subject to an enforcement action under title seven or nine of this
39 article;
40 (d) subject to an order for cleanup pursuant to article twelve of the
41 navigation law or pursuant to title ten of article seventeen of this
42 chapter; or
43 (e) subject to any other on-going state or federal environment
44 enforcement action.
45 6. "Brownfield site contact list" shall mean a list of persons,
46 government agencies, groups, or organizations who may be affected by or
47 interested in the remediation of a brownfield site, including all
48 elected officials of municipalities with jurisdiction over the area in
49 which such activity, plan or site is located; all brownfield site
50 owners, operators, and site residents; all adjacent property owners,
51 operators, and adjacent residents; and the parents or legal guardians of
52 any children enrolled in a school or daycare center located on the site;
53 the parents or legal guardians of any children enrolled in a school or
54 daycare center located on an adjacent site onto which contamination from
55 such site has emanated or which is or shall be subject to any institu-
56 tional or engineering controls or any operation and maintenance plan
A. 7507 6
1 employed to control contamination emanating from such brownfield site;
2 local and regional news organizations serving the area in which such
3 activity, plan or site is located; any person who has contacted a
4 government agency or locally elected official verbally or in writing, or
5 who has attended a public meeting, and expressed interest in such activ-
6 ity, plan or site; local neighborhood associations; local environmental
7 organizations; citizen, civic, or business organizations with an inter-
8 est in local environmental, land use, or economic development issues;
9 and any other persons, groups, or organizations who may be affected by
10 or interested in such activity, plan or site.
11 7. "Brownfield site cleanup agreement" shall mean an agreement
12 executed in accordance with section 27-1207 of this title by an appli-
13 cant and the department for the purpose of completing a brownfield site
14 remedial program.
15 8. "Brownfield site remedial program" or "remedial program" shall mean
16 all remedial activities or actions undertaken to eliminate, remove,
17 treat, abate, control, manage, or monitor hazardous substances at or
18 emanating from a brownfield site, including, but not limited to, the
19 following:
20 (a) remedial investigation and remedy selection activities needed to
21 develop such a program;
22 (b) design activities;
23 (c) construction activities including without limitation grading,
24 contouring, trenching, grouting, capping, excavating, transporting,
25 incinerating, thermally treating, chemically treating, biologically
26 treating, or constructing leachate collection and treatment systems;
27 (d) interim remedial measures;
28 (e) post-construction operation, maintenance, and monitoring;
29 (f) restoration of the environment;
30 (g) involvement by local governments of jurisdiction and by the gener-
31 al public; or
32 (h) oversight by the department.
33 9. "Change of use" shall mean any activity, other than activities
34 conducted pursuant to a brownfield site cleanup agreement, which is
35 likely to disrupt or expose hazardous substances or to increase direct
36 human exposure to hazardous substances; any conduct that will or may
37 tend to interfere with a proposed, ongoing or completed brownfield site
38 remedial program; or any activity which is not consistent with any
39 restrictions placed upon the use of a brownfield site.
40 10. "Community based organization" shall mean a not-for-profit corpo-
41 ration as defined in this section and with a demonstrated financial need
42 for state assistance.
43 11. "Community participation plan" shall mean the description of
44 community participation activities prepared and carried out by munici-
45 palities, community based organizations and/or applicants pursuant to
46 section 27-1213 of this title.
47 12. "Concentrated solid or semi-solid hazardous substances" shall mean
48 sold or semi-solid hazardous substances present in surface or subsurface
49 soil, surface water or groundwater in a concentrated form, such as
50 precipitated metallic salts, metal oxides, or chemical sludges.
51 13. "Contamination" or "contaminated" shall mean the presence of a
52 hazardous substance or substances in any environmental media, including
53 soil, surface water, groundwater, air, or indoor air.
54 14. "Dense non-aqueous phase liquid" (DNAPL) shall mean a hazardous
55 substance that is a liquid that is denser than water and does not
56 dissolve or mix easily in water.
A. 7507 7
1 15. "Document repository" shall mean a repository of brownfield site
2 remedial program documents established in the regional office of the
3 department in the region where the brownfield site is located and in a
4 publicly accessible building near the location of such site.
5 16. "Emergency response action" shall mean an action taken in response
6 to a situation that requires immediate containment and/or an interim
7 remedial measure to ensure that a release or potential release of
8 hazardous substances does not threaten the immediate health and safety
9 of humans or the environment.
10 17. "Engineering control" shall mean any physical barrier or method
11 employed to actively or passively contain, stabilize, or monitor hazard-
12 ous substances, restrict the movement of hazardous substances, ensure
13 the long-term effectiveness of a remedial program, or eliminate poten-
14 tial exposure pathways to hazardous substances. Engineering controls
15 include, but are not limited to, pavement, caps, covers, subsurface
16 barriers, vapor barriers, slurry walls, building ventilation systems,
17 fences, access controls, provision of alternative water supplies via
18 connection to existing public water supply, and adding treatment tech-
19 nologies to such water supplies.
20 18. "Exposed surface soils" shall mean all soil to which humans could
21 become exposed due to normal digging, gardening, sports, the installa-
22 tion of fencing, light construction, and other types of excavation
23 activities that do not require a municipal building permit, to a depth
24 of three feet.
25 19. "Feasible" shall mean suitable to geologic or hydrologic site
26 conditions, capable of being successfully carried out with available
27 technology, and cost effective.
28 20. "Financial assurance" shall include but not be limited to surety
29 bonds, trust funds, letters of credit, insurance or a multiple of finan-
30 cial mechanisms as determined to be adequate by the department.
31 21. "Free product" shall mean an immiscible non-aqueous phase liquid
32 other than a dense non-aqueous phase liquid present as a liquid, solid
33 or semi-solid in surface or sub-surface soil, surface water or groundwa-
34 ter in a potentially mobile state.
35 22. "Grossly contaminated soil" shall mean soil which contains free
36 product or residual product which is identifiable visually, through the
37 perception of odor, by elevated contaminant vapor levels, by field
38 instrumentation, or is otherwise readily detectable.
39 23. "Groundwater" shall mean water below the land surface in a satu-
40 rated zone of soil or rock. This includes perched water separated from
41 the main body of groundwater by an unsaturated zone.
42 24. "Groundwater restoration" shall mean the return of groundwater
43 quality to drinking water standards through means other than natural
44 attenuation.
45 25. "Hazardous substance" or "contaminant" shall mean a hazardous
46 waste as defined in section 27-1301 of this article, including a histor-
47 ical petroleum release as defined in this section.
48 26. "Historical petroleum release" means a petroleum release that the
49 department determines does not require an immediate response cleanup
50 which is defined as a cleanup that comprises a discrete set of activ-
51 ities which can be undertaken without extensive investigation and evalu-
52 ation to prevent, mitigate, or remedy environmental damage or the conse-
53 quences of environmental damage attributable to such release.
54 27. "Institutional control" shall mean any non-physical means of
55 enforcing a restriction on the use of real property that limits human or
56 environmental exposure, restricts the use of groundwater, monitors the
A. 7507 8
1 provision of interim remedial measures requiring alternative water
2 supplies to be provided or installing filtration devices on private
3 water supplies, provides notice to potential owners, operators, or
4 members of the public, or prevents actions that would interfere with the
5 effectiveness of a remedial program or with the effectiveness and/or
6 integrity of operation, maintenance, or monitoring activities at or
7 pertaining to a brownfield site.
8 28. "Interim remedial measures" shall mean activities to address both
9 emergency and non-emergency site conditions, which can be undertaken
10 without extensive investigation and evaluation, to prevent, mitigate, or
11 remedy environmental damage or the consequences of environmental damage
12 attributable to a site, including but not limited to, the following
13 activities: construction of diversion ditches, collection systems, free
14 product recovery systems, or leachate collection systems; construction
15 of fences or other barriers; installation of water filters; provision of
16 alternative water systems; the removal of free product; or plume
17 control.
18 29. "Multi-source contaminated groundwater area" shall mean an area
19 identified and delineated by the department in cooperation with the
20 department of health, where groundwater is contaminated by a range of
21 hazardous substances from multiple sources and multiple sites and where
22 contamination is so wide-spread that site-by-site remedial activities
23 would be inefficient or ineffective using currently available technolo-
24 gies.
25 30. "Municipality" shall mean any county, city, town, village, or
26 school district in the state of New York. [but not IDA]
27 31. "Natural attenuation" shall mean a remedial alternative that
28 exclusively relies on passive natural processes over distance and time
29 to contain the spread of or reduce the concentration of contamination.
30 Natural attenuation includes, but is not limited to: diffusion, disper-
31 sion, volatilization, adsorption, chemical degradation and biodegrada-
32 tion.
33 32. "Newspaper notice" shall mean the placement of a prominently
34 located, paid newspaper advertisement in the community bulletin section
35 or similar local section of a newspaper of general circulation in the
36 vicinity of the brownfield site which is the subject of the notice. Such
37 notice shall be in English and in any other language spoken by signif-
38 icant numbers of people within the community.
39 33. "Non-aqueous phase liquid" shall mean a liquid that does not
40 dissolve or mix easily in water.
41 34. "Not-for-profit corporation" shall mean a not-for-profit corpo-
42 ration incorporated under section 501(c) (3) of the internal revenue
43 code whose stated mission is not inconsistent with promoting reuse of
44 brownfield sites within a specified geographic area, and who has exer-
45 cised due care with respect to any hazardous substance at the brownfield
46 site, taking into consideration the characteristics of such hazardous
47 substances, in light of all relevant facts and circumstances, including
48 but not limited to a not-for-profit corporation whose board of directors
49 shall include residents of the community or communities in such speci-
50 fied geographic area and who has a demonstrated record of community
51 involvement and/or revitalization. A "not-for-profit corporation" shall
52 not include any not-for-profit corporation whose acts or omissions have
53 caused or contributed to the release or threatened release of a hazard-
54 ous substance from or onto the brownfield site, or any not-for-profit
55 corporation that generated, transported, or disposed of, or that
56 arranged for, or caused the generation, transportation, or disposal of
A. 7507 9
1 hazardous substances from or onto the brownfield site. This definition
2 shall not apply if any member, officer or director of the not-for-profit
3 corporation is or was employed or receiving compensation from any person
4 responsible for a site under title thirteen of this article, any respon-
5 sible party under this title or under applicable principles of statutory
6 or common law liability.
7 35. "Non-responsible party" shall mean:
8 (a) a person who is not a responsible party as defined in this
9 section;
10 (b) a person who would otherwise be defined as a responsible party
11 pursuant to this title but who can establish an affirmative defense; or
12 (c) a not-for-profit corporation as defined in this section.
13 36. "Off-site contamination" shall mean any hazardous substance which
14 has emanated from a brownfield site beyond the real property boundaries
15 of such site, via movement through air, indoor air, soil, surface water
16 or groundwater.
17 37. "On-site contamination" shall mean any hazardous substance located
18 within the real property boundaries of a brownfield site.
19 38. "Person" shall mean an individual, trust, firm, joint stock compa-
20 ny, corporation, limited liability company, not-for-profit corporation,
21 partnership, association, state, municipality, commission, political
22 subdivision of a state, public benefit corporation, or any interstate
23 body.
24 39. "Petroleum" shall have the meaning set forth in section one
25 hundred seventy-two of the navigation law.
26 40. "Preliminary environmental assessment" shall mean a written report
27 submitted as part of a request to complete a brownfield restoration
28 program pursuant to a brownfield site cleanup agreement. Such prelimi-
29 nary environmental assessment shall include, but not be limited to:
30 (a) a review of any relevant prior environmental studies, property
31 assessments, or geological studies of such brownfield site;
32 (b) a legal description of such brownfield site;
33 (c) the physical characteristics of such brownfield site;
34 (d) the compliance history of any operations at such brownfield site
35 to the extent the history is known by such person;
36 (e) a review of any existing aerial photographs of such brownfield
37 site that may indicate its prior uses;
38 (f) if possible, interviews with employees who may have knowledge of
39 environmental conditions at such brownfield site;
40 (g) an inspection of such brownfield site sufficient to evaluate site
41 conditions and remedial needs;
42 (h) an identification of the past, current, intended, and reasonably
43 anticipated future uses of such brownfield site;
44 (i) a description of adjacent site land uses; and
45 (j) any other relevant information concerning the potential for human
46 and environmental exposure to hazardous substances at such brownfield
47 site.
48 41. "Public notice" shall mean publication of a notice or fact sheet
49 in the environmental notice bulletin and a mailing thereof to all muni-
50 cipalities with jurisdiction over the area in which brownfield predevel-
51 opment activities, a brownfield redevelopment plan, or brownfield site
52 are located; all brownfield site owners, operators, and residents, and
53 all adjacent property owners, operators, and residents; and all persons
54 on the project or brownfield site contact list.
55 42. "Remedial investigation" shall mean activities undertaken to fully
56 characterize the nature and extent of hazardous substance contamination
A. 7507 10
1 at a brownfield site, including hazardous substances emanating from such
2 site. The remedial investigation emphasizes data collection and site
3 characterization and generally is performed concurrently with the iden-
4 tification, screening, and evaluation of remedial alternatives. It
5 includes sampling and monitoring, as necessary, and includes but is not
6 limited to: identification of the properties of hazardous substances and
7 the length, depth and width of contamination; definition of the pathways
8 of migration; measurement of the degree of contamination in surface
9 water, groundwater, soils, air, plants and animals; characterization of
10 site geologic and hydrogeologic conditions, including groundwater flow,
11 contaminant movement, and the response of the groundwater system to
12 extraction; assessment of the existing and potential impact of groundwa-
13 ter contamination on private or community water supply wells, surface
14 water quality, air quality, and indoor air quality; a determination of
15 whether groundwater is currently being or may potentially be used as
16 drinking water; and the gathering of sufficient information to determine
17 the necessity for, and the proposed extent of, the remedial program and
18 to support the evaluation of proposed alternatives.
19 43. "Responsible party" shall mean:
20 (a) the owner or operator of a brownfield site;
21 (b) any person who at the time of disposal of any hazardous substance
22 owned or operated any brownfield site at which such hazardous substance
23 was disposed;
24 (c) any person who by contract, agreement, or otherwise arranged for
25 disposal or treatment, or arranged with a transporter for transport for
26 disposal or treatment, of hazardous substances owned or possessed by
27 such person, by any other party or entity, at any facility owned or
28 operated by another party or entity and containing such hazardous
29 substances; or
30 (d) any person who accepts or accepted any hazardous substances for
31 transport to disposal or treatment facilities or incineration sites
32 selected by such person, from which there is a release, or a threatened
33 release, which causes the incurrence of response costs, of a hazardous
34 substance. A responsible party shall be liable for:
35 (1) any release of a hazardous substance or incident involving release
36 of a hazardous substance at a brownfield site; and
37 (2) all costs of removal or remedial action of such hazardous
38 substance.
39 44. "Residual product" shall mean a hazardous substance remaining as a
40 solid, semi-solid or immiscible liquid in surface or subsurface soil,
41 geologic matrix pore spaces or fractures and held in place by capillary
42 forces or other physical or chemical forces that will not drain from the
43 formation.
44 45. "State costs" shall mean all those costs, obligations, commit-
45 ments, or undertakings associated with the administration or oversight
46 responsibilities of the department, the department of health, or any
47 other state or local government or government agency attributable to
48 carrying out the investigation, remediation, and/or long-term operation
49 and maintenance of a brownfield site under a brownfield cleanup agree-
50 ment as set forth in this title. Such expenses shall include administra-
51 tive expenses (wages and salaries), fringe benefits, overhead, supplies
52 and materials, equipment, travel, utilities, and any oversight, plan
53 development, monitoring, and enforcement costs associated with any use
54 restrictions, institutional controls, engineering controls, or operation
55 and maintenance of a brownfield site under a brownfield cleanup agree-
56 ment as set forth in this title. Such costs may be based on a negotiated
A. 7507 11
1 flat-fee oversight amount as set forth in a brownfield site cleanup
2 agreement pursuant to this title; or on an itemized invoice from the
3 department representing reimbursement for the state's expenses.
4 §§ 27-1207. Brownfield site cleanup agreement.
5 1. Request for participation. A person who seeks to execute a brown-
6 field site cleanup agreement which consists of, among other things, a
7 brownfield site remedial program for a particular brownfield site, shall
8 submit a request to the department. Such request shall be on a form
9 provided by the department and shall contain: general information
10 concerning such person, including but not limited to whether such person
11 is the subject of an action or proceeding as provided in subparagraphs
12 three and four of paragraph (c) of subdivision two of this section;
13 general information concerning such person's relationship to the brown-
14 field site; a description of the brownfield site; and, a copy of a
15 preliminary environmental assessment concerning such site.
16 2. Determination of eligibility. (a) The department shall use its best
17 efforts to notify the person requesting participation in a brownfield
18 site cleanup agreement under this section within sixty days after
19 receiving such request that such request is either accepted or rejected.
20 (b) Upon request for participation by a person in a brownfield site
21 agreement, the department shall notify the administrator of the New York
22 environmental protection and spill compensation fund to determine wheth-
23 er such person has been identified as responsible for cleanup and
24 removal costs for the discharge of petroleum at or emanating from the
25 brownfield site for which the person is seeking participation or any
26 other outstanding claim by the fund against such person pursuant to
27 article twelve of the navigation law. The administrator shall notify the
28 department within thirty days of such notice of any outstanding claim by
29 the fund against such person.
30 (c) The department shall reject such request if:
31 (1) the department, based on the preliminary environmental assessment
32 and/or other information the department possesses, determines that the
33 request is for real property which does not meet the requirements of a
34 brownfield site as defined in this title;
35 (2) the request does not contain the information required for a
36 preliminary environmental assessment in sufficient detail to allow the
37 department to assess the conditions of the proposed site; or
38 (3) there is an action or proceeding against the person who is
39 requesting participation that is pending in any civil or criminal court
40 in any jurisdiction, or before any state or federal administrative agen-
41 cy or body, wherein the state or federal government seeks the investi-
42 gation, removal, or remediation of hazardous substances, or penalties
43 for the disposal of hazardous substances.
44 (4) the person requesting participation has been identified to be
45 responsible for cleanup and removal costs or is subject to an outstand-
46 ing claim as provided in paragraph (b) of this subdivision.
47 (d) The department may reject such request for participation if the
48 department determines that the public interest would not be served by
49 granting such request.
50 (e) If such request is rejected pursuant to subparagraph two of para-
51 graph (c) of this subdivision, the department shall provide to the
52 person making such request, in writing, a list of the additional infor-
53 mation required for the department to determine eligibility under this
54 article.
55 (f) If the department determines that the person applying meets the
56 eligibility requirements of this subdivision, the department shall so
A. 7507 12
1 notify such person, who, upon receipt of such notification, shall be
2 deemed an applicant for the purposes of entering a brownfield site
3 cleanup agreement.
4 (g) The department shall determine whether the proposed site consti-
5 tutes a significant threat to public health or the environment and
6 should be included in the registry of inactive hazardous waste disposal
7 sites as required by section 27-1305 of this article. If the department
8 determines that such site is eligible for inclusion in the registry as a
9 classification 1 or 2 site, and if the applicant commits to enter into a
10 brownfield site cleanup agreement pursuant to this title, the department
11 shall defer including such site in the registry and shall continue to
12 defer such site for so long as the applicant is engaged in good faith
13 negotiations to enter into such an agreement and, following its
14 execution, is in compliance with the terms of such agreement. If the
15 department determines that such applicant has failed to negotiate in
16 good faith after one year, or the applicant withdraws from a brownfield
17 cleanup agreement pursuant to or in violation of this title, the depart-
18 ment shall include such site in the registry of inactive hazardous waste
19 disposal sites pursuant to section 27-1305 of this article.
20 3. Brownfield site cleanup agreement. (a) An applicant shall enter
21 into a brownfield site cleanup agreement with the department for the
22 purpose of completing a brownfield site remedial program on a brownfield
23 site. Such agreement shall not constitute an enforcement proceeding or
24 the exercise of prosecutorial discretion by the department.
25 (b) The brownfield site cleanup agreement shall include, but not be
26 limited to, the following provisions:
27 (1) one requiring the applicant to conduct and complete a brownfield
28 site remedial program at the brownfield site pursuant to a remedial
29 investigation work plan, a remedial work plan and, if necessary, an
30 interim remedial measure work plan, which are approved by the depart-
31 ment;
32 (2) one requiring the preparation and implementation of a community
33 participation plan consistent with the requirements of this title as
34 soon as possible following execution of the agreement but no later than
35 prior to the preparation of a draft remedial investigation plan by the
36 applicant which shall include a description of community participation
37 activities already performed by the applicant;
38 (3) one requiring the applicant to pay for state costs. The department
39 may include a provision requiring the applicant to provide a technical
40 assistance grant, as described in section 27-1215 of this title and
41 under the conditions described therein, to an eligible party; provided,
42 however, that for an applicant who is a non-responsible party, the cost
43 of such a grant shall serve as an offset against such state costs;
44 (4) one authorizing the department to request at any time during the
45 evaluation of a proposed work plan that the applicant submit additional
46 or corrected information to the department;
47 (5) one allowing an applicant to withdraw from such agreement in writ-
48 ing or invoke the dispute resolution provision created pursuant to this
49 section if the applicant and the department fail to agree to the terms
50 of a work plan pursuant to this title after good faith negotiations
51 between such applicant and the department; provided however that the
52 applicant provide the department with thirty days written notice of its
53 intent to withdraw and such withdrawal shall not be permitted unless the
54 department certifies that the contamination on the brownfield site does
55 not present a greater risk to human health and the environment than
56 existed prior to the start of the brownfield site remedial program;
A. 7507 13
1 (6) one resolving disputes arising from the evaluation, analysis, and
2 oversight of the implementation of any work plan required by this title;
3 (7) one requiring an indemnification provision which holds the state
4 harmless from any claim, suit, action, and cost of every name and
5 description arising out of or resulting from the fulfillment or
6 attempted fulfillment of the brownfield site cleanup agreement except
7 for those claims, suits, actions, and costs arising from the willful or
8 intentional misconduct of the state;
9 (8) one requiring a waiver by the applicant, effective upon the issu-
10 ance of a certificate of completion pursuant to section 27-1217 of this
11 title, of any right such volunteer has or may have to make a claim
12 pursuant to article twelve of the navigation law with respect to the
13 brownfield site, and a release of the New York environmental protection
14 and spill compensation fund from any and all legal or equitable claims
15 or causes of action that such volunteer may have as a result of entering
16 into a brownfield site agreement or fulfilling a brownfield site remedi-
17 al program at such site;
18 (9) one authorizing the department to terminate a brownfield site
19 cleanup agreement at any time during the implementation of such agree-
20 ment if the applicant implementing such agreement fails to substantially
21 comply with the terms and conditions of such agreement;
22 (10) one exempting such applicant from the requirement to obtain any
23 state or local permit or other local authorization for any activity
24 satisfying the following criteria:
25 (i) the activity is conducted on the brownfield site or on different
26 premises that are contiguous to or physically connected with the brown-
27 field site and the activity is directly related to the brownfield site
28 remedial program at such brownfield site,
29 (ii) the activity satisfies all substantive technical requirements
30 applicable to like activity conducted pursuant to a permit as determined
31 by the department, and
32 (iii) the activity is conducted under such brownfield site cleanup
33 agreement;
34 (11) one stating that the department shall not consider such applicant
35 an operator of such brownfield site based solely upon execution or
36 implementation of such brownfield site cleanup agreement for purposes of
37 remediation liability;
38 (12) the inclusion of other conditions considered necessary by the
39 department concerning the effective and efficient implementation of this
40 section, and, where the applicant is a responsible party, the department
41 shall include provisions relating to recovery of state costs incurred
42 before the effective date of such brownfield site cleanup agreement,
43 including costs incurred by the state for an emergency response action
44 or interim remedial measure as defined in section 27-1205 of this title;
45 (13) one requiring the applicant to cause a final engineering report
46 to be prepared and submitted to the department pursuant to subdivision
47 two of section 27-1217 of this title; and
48 (14) one requiring the applicant to apply to the department for a
49 certificate of completion pursuant to section 27-1217 of this title and
50 meet the requirements for issuance of such certificate of completion.
51 (c) Execution of a brownfield site cleanup agreement under this title
52 does not affect the authority of the department or commissioner to take
53 any remedial action under this chapter with respect to the presence of
54 hazardous substances.
55 (d) A brownfield site cleanup agreement entered into under this
56 section shall extend to the successors and assigns of the person to whom
A. 7507 14
1 it originally applies, if the successors and assigns are bound by the
2 conditions in such agreement and are not otherwise: responsible for the
3 site under title thirteen of this article, a party responsible under
4 this article, or, a party responsible under any other law according to
5 applicable principles of statutory or common law liability for the
6 particular brownfield site which is the subject of such agreement.
7 (e) Nothing in this section shall require the department to enter into
8 a brownfield site cleanup agreement with any person.
9 §§ 27-1209. Remedial goal and remedy selection factors.
10 1. Remedial goal. The goal of the remedial program for a brownfield
11 site shall be to achieve a complete and permanent cleanup of the site
12 that would allow the site to be used for any purpose without restriction
13 and without reliance on the long-term employment of institutional or
14 engineering controls. All remedies shall be protective of groundwater
15 according to its classification pursuant to section 17-0301 of this
16 chapter.
17 2. The remedial program for a site must be selected upon due consider-
18 ation of the following factors:
19 (a) conformance to standards and criteria that are generally applica-
20 ble, consistently applied, and officially promulgated, that are either
21 directly applicable, or that are not directly applicable but are rele-
22 vant and appropriate, unless good cause exists why conformity should be
23 dispensed with, and with consideration being given to guidance deter-
24 mined, after the exercise of engineering judgment, to be applicable.
25 Such good cause exists if any of the following is present:
26 (1) the proposed action is only part of a complete program that will
27 conform to such standard or criterion upon completion; or
28 (2) conformity to such standard or criterion will result in greater
29 risk to the public health or to the environment than alternatives; or
30 (3) conformity to such standard or criterion is technically impracti-
31 cable from an engineering perspective; or
32 (4) the program will attain a level of performance that is equivalent
33 to that required by the standard or criterion through the use of another
34 method or approach;
35 (b) overall protectiveness of the public health and environment;
36 (c) short-term effectiveness;
37 (d) long-term effectiveness;
38 (e) reduction of toxicity, mobility, and volume with treatment; a
39 remedial program that permanently and significantly reduces the toxici-
40 ty, mobility and/or volume of hazardous substances is to be preferred
41 over a remedial program that does not do so. The following is the hier-
42 archy of remedial technologies ranked from the most preferable to the
43 least preferable: destruction, on-site or off-site; separation/treat-
44 ment, on-site or off-site; solidification/chemical fixation, on-site or
45 off-site; control and isolation, off-site or on-site;
46 (f) feasibility; a feasible remedy is one that is suitable to geologic
47 or hydrologic site conditions, capable of being successfully carried out
48 with available technology, and that considers, at a minimum, implementa-
49 bility and cost-effectiveness;
50 (g) community acceptance; and
51 (h) land use: the current, intended, and reasonably anticipated future
52 land uses of the site and its surroundings. The reasonably anticipated
53 future use of the site and its surroundings shall be documented by the
54 applicant and determined by the department, taking into consideration
55 factors which include, but are not limited to:
56 (1) current use and historical and/or recent development patterns;
A. 7507 15
1 (2) applicable zoning laws and maps;
2 (3) applicable land re-use opportunity area designations and/or land
3 re-use opportunity area redevelopment plans made or adopted pursuant to
4 section sixteen-n of the New York state urban development corporation
5 act and any written and oral comments submitted by members of the public
6 on such designation or plans, or, if applicable, during the pre-planning
7 process;
8 (4) applicable comprehensive community master plans, local waterfront
9 revitalization plans as provided for in article forty-two of the execu-
10 tive law, or any other applicable land use plan formally adopted by a
11 municipality or community, including supporting planning documents and
12 reports;
13 (5) proximity to real property currently used for residential use, and
14 to urban, commercial, industrial, agricultural, and recreational areas;
15 (6) any written and oral comments submitted by members of the public
16 on the site's remedial program as part of community participation activ-
17 ities performed by the applicant pursuant to this title;
18 (7) discussions with representatives of local land use planning
19 authorities, appropriate public officials, locally affected parties and
20 members of the public regarding the community's desired future use of
21 the site;
22 (8) environmental justice concerns, including the extent to which the
23 proposed use may reasonably be expected to cause or increase a
24 disproportionate and/or inequitable burden on the community in which the
25 site is located, including minority communities and/or economically
26 distressed areas; or to result in an undue concentration of commercial
27 or industrial uses in what has historically been a mixed use or residen-
28 tial community. If the site is located in a minority community or
29 economically distressed area, extra effort should be made by the appli-
30 cant and the department to reach out to and consult with segments of the
31 community that are not necessarily reached by conventional methods of
32 communication or adequately represented by local land use planning
33 authorities or public officials;
34 (9) the degree of agreement between applicable zoning laws, land
35 re-use opportunity area redevelopment plans, comprehensive community
36 master plans, any other applicable land use plan, local land use plan-
37 ning authorities, public officials, and members of the public regarding
38 the reasonably anticipated and/or desired future use of the site;
39 (10) federal or state land use designations;
40 (11) population growth patterns and projections;
41 (12) accessibility to existing infrastructure;
42 (13) cultural factors, including proximity of the site to important
43 cultural resources, including federal or state historic or heritage
44 sites or Native American religious sites;
45 (14) natural resources, including proximity of the site to important
46 federal, state or local natural resources, including waterways, wildlife
47 refuges, wetlands, or critical habitats of endangered or threatened
48 species;
49 (15) potential vulnerability of groundwater to contamination that
50 might migrate from the site, including proximity to wellhead protection
51 and groundwater recharge areas and other areas identified by the depart-
52 ment and the state's comprehensive groundwater remediation and
53 protection program established pursuant to title thirty-one of article
54 fifteen of this chapter;
55 (16) proximity to floodplains;
56 (17) geography and geology;
A. 7507 16
1 (18) the long-term viability of the use proposed for the site, includ-
2 ing evidence regarding the intent of the applicant to actively use the
3 site for such use and, if the proposed use is commercial or industrial,
4 evidence regarding the probability that the site will stay in active
5 commercial or industrial use for the reasonably foreseeable future; and
6 (19) current institutional controls.
7 3. The department shall not approve a remedial program which would
8 require restrictions on the use of the site if:
9 (a) the use proposed for the site does not conform with the reasonably
10 anticipated future use of the site determined by the department pursuant
11 to this section, or considerable uncertainty is associated with such
12 determination;
13 (b) the site is adjacent to real property used for residential use,
14 unless the use proposed for the site conforms with the use identified
15 for such site in an applicable land re-use opportunity area redevelop-
16 ment plan adopted pursuant to section sixteen-n of the New York state
17 urban development corporation act, and the applicant can demonstrate
18 that the proposed remedial program is fully protective of the adjacent
19 residential uses and does not allow for further contribution to off-site
20 migration or dispersion of contaminants;
21 (c) the use proposed for the site does not conform with the use iden-
22 tified for such site in an applicable land re-use opportunity area rede-
23 velopment plan adopted pursuant to section sixteen-n of the New York
24 state urban development corporation act;
25 (d) the department determines that the use proposed for the site may
26 reasonably be expected to cause or increase a disproportionate and/or
27 inequitable burden on the community in which the site is located,
28 including minority communities and/or economically distressed areas;
29 (e) the site is adjacent to important federal, state, or local
30 cultural or natural resources; wellhead protection or groundwater
31 recharge areas; or floodplains; as listed in subparagraphs (13) through
32 (16) of paragraph (h) of subdivision two of this section, unless the
33 applicant can demonstrate that the proposed remedial program is fully
34 protective of such adjacent resources, areas or floodplains and does not
35 allow for further contribution to off-site migration or dispersion of
36 contaminants;
37 (f) the long-term reliability of institutional and/or engineering
38 controls is in doubt due to concerns about the financial viability of
39 the applicant or the historic non-compliance of the applicant with any
40 state or federal environmental or public health law, rule, or regulation
41 or consent order or agreement thereunder; or
42 (g) the site is being remediated by a responsible party pursuant to
43 paragraph (c) of subdivision three of section 27-1211 of this title and
44 the proposed remedial work plan would result in restrictions that would
45 limit the use of the site to commercial and industrial purposes, and the
46 responsible party has failed to adequately demonstrate their intention
47 to use the site for such purposes, or to demonstrate the long-term
48 viability of active commercial and industrial use of the site.
49 4. If a remedial program carried out by a responsible party pursuant
50 to paragraph (c) of subdivision three of section 27-1211 of this title
51 results in restrictions that limit the use of the site to a commercial
52 or industrial use, such responsible party must provide an enforceable
53 guarantee, including financial assurance, that if an active commercial
54 or industrial use is not achieved within two years of the issuance of a
55 certificate of completion pursuant to section 27-1217 of this title and
56 maintained at the site, such party shall perform a complete and perma-
A. 7507 17
1 nent cleanup of the site without the need for land use restrictions or
2 long-term monitoring or maintenance.
3 §§ 27-1211. Remedial program.
4 1. Remedial investigation work plan and report. (a) A draft remedial
5 investigation work plan shall be prepared by the applicant and approved
6 by the department prior to the start of a remedial investigation. Such
7 plan shall provide for a full characterization of the nature and extent
8 of contamination at a brownfield site and contamination emanating from
9 such site, including on-site and off-site groundwater contamination
10 pursuant to subdivision six of this section. If it is determined that
11 contamination has migrated off-site, or that contamination is migrating
12 on-site from another site, the department should be notified immediate-
13 ly.
14 (b) At the completion of remedial investigation activities, the appli-
15 cant shall submit to the department a remedial investigation report
16 prepared by an individual licensed or otherwise authorized in accordance
17 with article one hundred forty-five of the education law to practice the
18 profession of engineering. Such report shall describe all the remedial
19 investigation activities undertaken by the applicant and the results of
20 those activities.
21 2. Remedial work plan. (a) A work plan for the remediation of a
22 brownfield site shall provide for the development and implementation of
23 a remedial program for such site and shall document the remedy selection
24 process, including the remediation of groundwater contamination pursuant
25 to subdivision six of this section.
26 (b) A non-responsible party, defined pursuant to section 27-1205 of
27 this title, shall be responsible for the remediation of on-site contam-
28 ination. A responsible party, defined pursuant to section 27-1205 of
29 this title, shall be responsible for the remediation of contamination at
30 or emanating from the site.
31 (c) The department shall be responsible for remediation as established
32 in paragraph (b) of subdivision nine of this section.
33 3. Promulgation of regulations. Within twelve months of the effective
34 date of this title, the department shall promulgate regulations that set
35 forth remedy selection requirements for three remedial tracks for the
36 remediation of brownfield sites as follows:
37 (a) Track 1 - Unrestricted use.
38 (1) If the remedial program proposed in a remedial work plan will be
39 protective of public health and the environment and will achieve a
40 complete and permanent cleanup of the site that will allow the site to
41 be used for any purpose without restriction and without reliance on the
42 long-term employment of institutional or engineering controls, the reme-
43 dy selection process need not be consistent with the national oil and
44 hazardous substances pollution contingency plan (40 CFR Part 300 as of
45 March eighth, nineteen hundred ninety) and the remedial work plan need
46 not document the identification, screening and evaluation of additional
47 remedial alternatives. Such work plan shall include specific goals and
48 objectives for the remedial program proposed for the site which achieve
49 the generic contaminant-specific remedial action objectives for soil
50 established pursuant to this paragraph and do not exceed the levels for
51 cumulative risk of residual contamination at a site established pursuant
52 to paragraph (c) of subdivision four of this section, and document the
53 evaluation of such proposed program against the eight remedy selection
54 factors established in subdivision two of section 27-1209 of this title.
55 (2) Non-responsible parties whose proposed remedial program for the
56 remediation of groundwater may require the long-term employment of
A. 7507 18
1 institutional or engineering controls after the bulk reduction of
2 groundwater contamination to asymptotic levels has been achieved pursu-
3 ant to subdivision six of this section, but whose program would other-
4 wise conform with the requirements necessary to qualify for Track 1,
5 shall qualify for Track 1.
6 (3) Within twelve months of the effective date of this title, the
7 department shall promulgate regulations that establish a generic list of
8 contaminant-specific remedial action objectives for soil that would
9 allow a brownfield site to be used for any purpose without restriction
10 and that conform with the requirements of subdivision four of this
11 section. In developing such objectives, the department shall also
12 consider the feasibility of achieving more stringent objectives based on
13 field data and experience under existing state remedial programs,
14 including the records of decision produced for inactive hazardous waste
15 sites pursuant to title thirteen of this article, the remediation levels
16 actually achieved at such sites, and other relevant data. The department
17 shall give particular attention to developing more stringent remedial
18 action objectives based on feasibility where there are gaps in the
19 scientific data needed to assess the toxicological effect of and/or
20 exposure to a hazardous substance. If a remedial action objective for a
21 specific medium or contaminant based on field data and experience is
22 more stringent than a remedial action objective for the same medium or
23 contaminant based on toxicological or exposure data, the more stringent
24 objective shall be utilized.
25 (4) The department shall update such list of contaminant-specific
26 remedial action objectives every five years. The initial list shall be
27 published in draft form for public comment with a public comment period
28 of one hundred twenty days, and be the subject of at least six public
29 hearings throughout the state. Subsequent lists shall be the subject of
30 at least three public hearings and a public comment period of at least
31 ninety days.
32 (b) Track 2 - Presumptive remedies. If the remedial program proposed
33 in a remedial work plan will utilize a presumptive remedy developed and
34 ranked by the department pursuant to subdivision seven of this section,
35 the remedy selection process need not be consistent with the national
36 oil and hazardous substances pollution contingency plan and a demon-
37 stration that the site is eligible for such presumptive remedy shall
38 substitute for the identification, screening and evaluation of remedial
39 alternatives. Such work plan shall include contaminant-specific remedi-
40 al action objectives for soil which conform with the requirements of
41 subdivision four of this section. The applicant may propose a single
42 presumptive remedy, e.g., for a single media and single contaminant or
43 group of contaminants; or a combination of presumptive remedies, such as
44 for multiple media and groups of contaminants. If the applicant proposes
45 a presumptive remedy that is ranked lower than other presumptive reme-
46 dies designated for the same set of site conditions, media, and type of
47 contamination, the applicant must provide, in the proposed remedial
48 action plan, a description of each presumptive remedy ranked higher than
49 the proposed remedy, and a rationale for why the proposed remedy was
50 selected over the remedies ranked higher by the department.
51 (c) Track 3 - Site specific restricted use. If the remedial program
52 proposed in a remedial work plan will not achieve a complete and perma-
53 nent cleanup of the site, therefore requiring restrictions on the use of
54 the site or reliance on the long-term employment of institutional or
55 engineering controls, such program must be protective of public health
56 and the environment and the remedy selection process must not be incon-
A. 7507 19
1 sistent with the national oil and hazardous substances pollution contin-
2 gency plan (40 CFR Part 300 as of March eighth, nineteen hundred ninety)
3 and the remedial work plan shall document the identification, screening
4 and evaluation of remedial alternatives and include contaminant-specific
5 remedial action objectives for soil which conform with the requirements
6 of subdivision four of this section. Provided however, that if the
7 department has found that a brownfield site does not constitute a
8 significant threat to public health or the environment, the remedy
9 selection process need not be consistent with the national oil and
10 hazardous substances contingency plan but shall document the development
11 and evaluation of at least two remedial alternatives, one of which shall
12 be an alternative that would achieve a complete and permanent cleanup of
13 the site without the need for use restrictions or reliance on the long-
14 term employment of institutional or engineering controls. Such alterna-
15 tives shall be evaluated and compared to each other based on their abil-
16 ity to achieve the remedial goal and satisfy the eight remedy selection
17 factors established in subdivisions one and two of section 27-1209 of
18 this title, and to achieve the generic contaminant-specific remedial
19 action objectives for soil developed pursuant to paragraph (a) of this
20 subdivision.
21 (d) For all tracks, exposed surface soils must be remediated to the
22 generic contaminant-specific remedial action objectives developed for
23 Track 1.
24 (e) The department may approve a proposed remedial work plan that
25 includes institutional controls and/or engineering controls as compo-
26 nents of a proposed remedial program only if the remedial work plan
27 includes:
28 (1) A complete description of any proposed use restrictions and/or
29 institutional controls and the mechanisms that will be used to imple-
30 ment, maintain, monitor, and enforce such restrictions and controls,
31 both by the applicant and by any state and local government;
32 (2) A complete description of any proposed engineering controls and
33 any operation, maintenance, and monitoring requirements, including the
34 mechanisms that will be used to continually implement, maintain, moni-
35 tor, and enforce such controls and requirements, both by the applicant
36 and by any state and local government;
37 (3) An evaluation of the uncertainty associated with the long-term
38 implementation, maintenance, monitoring, and enforcement of any proposed
39 institutional or engineering controls and an analysis of the long-term
40 costs of implementing, maintaining, monitoring and enforcing such
41 controls, including costs that may be borne by state or local govern-
42 ments;
43 (4) Sufficient analysis to support a conclusion that effective imple-
44 mentation, maintenance, monitoring and enforcement of institutional
45 and/or engineering controls can be reasonably expected; and
46 (5) Financial assurance to ensure the long term implementation, main-
47 tenance, monitoring, and enforcement of any such controls.
48 (6) Any engineering control must be used in conjunction with institu-
49 tional controls to ensure the continued integrity of such engineering
50 control.
51 (f) Any interim remedial measure, or remedial action which implements
52 or requires the provision of an alternative water supply, or of
53 increased treatment on an existing water supply shall require the use of
54 institutional controls to track the integrity of such engineering
55 control.
A. 7507 20
1 4. Contaminant-specific remedial action objectives for soil. (a)
2 Contaminant-specific remedial action objectives for soil shall, at a
3 minimum, be protective of public health and the environment and conform
4 with standards, criteria and guidance which are found by the department
5 to be applicable or relevant and appropriate pursuant to paragraph (a)
6 of subdivision two of section 27-1209 of this title.
7 (b) In addition, such objectives shall be protective of: (1) groundwa-
8 ter according to its classification pursuant to section 17-0301 of this
9 chapter; (2) drinking water, surface water and air (including indoor
10 air); (3) sensitive and susceptible populations, including children and
11 their behaviors; and (4) ecological resources, including fish and wild-
12 life and their habitats.
13 (c) The cumulative risk of residual contamination at a site shall not
14 exceed an excess cancer risk of one in one million for carcinogenic end
15 points and a hazard index of one for non-cancer end points, taking into
16 account those contaminants which act through similar toxicological mech-
17 anisms or have the potential for additive and/or synergistic effects,
18 and exposure to the same contaminant or group of contaminants from other
19 routes.
20 5. Source removal. For all applicants, the remedial program selected
21 pursuant to subdivision three of this section shall include source
22 removal. Source removal shall include, but not be limited to:
23 (a) The removal of all free product and concentrated solid or semi-
24 solid hazardous substances;
25 (b) The removal of grossly contaminated soil;
26 (c) Plume stabilization, which shall mean prevention of further
27 migration of groundwater contamination to the extent feasible, and any
28 actions necessary to maintain and monitor such stabilization;
29 (d) The elimination of human exposure or potential human exposure to
30 contamination including volatilization into buildings;
31 (e) The removal, or permanent treatment, of dense non-aqueous phase
32 liquid and/or residual light non-aqueous phase liquid, to the extent
33 feasible. If such liquids cannot be removed or permanently treated,
34 containment measures must be implemented to prevent the further release
35 of contamination to the surrounding environment;
36 (f) An evaluation of the need to provide an alternative water supply
37 to affected individuals or a community or to add treatment to existing
38 public water supplies. If such evaluation indicates that groundwater is
39 contaminated in excess of drinking water standards at the brownfield
40 site or due to contamination emanating from such site:
41 (1) an applicant shall be responsible for providing an alternative
42 water supply for the duration of the short-term remedial groundwater
43 activities to residents or businesses with drinking water wells located
44 within the real property boundaries of the brownfield site which is the
45 subject of a brownfield site cleanup agreement;
46 (2) the state shall be responsible for providing, or ensuring that a
47 responsible party is providing, for the duration of the short-term reme-
48 dial groundwater activities, an alternative water supply to residents or
49 businesses whose drinking water wells are located off the brownfield
50 site that is the subject of a brownfield site cleanup agreement; and
51 (3) a responsible party, or the state in the absence of a readily
52 identifiable responsible party or if a responsible party is recalci-
53 trant, shall ensure that when a public supply well is already being
54 utilized, or connection to such water supply is required as a long-term
55 remedial measure due to contamination at or emanating from a brownfield
56 site participating in this program, the necessary treatment of the
A. 7507 21
1 public water supply is in place to ensure that the water meets drinking
2 water standards prior to human consumption; and
3 (g) Prevention of the discharge of contaminated groundwater to surface
4 water.
5 6. Groundwater remediation. (a) A non-responsible party shall
6 perform a remedial investigation of both on-site and off-site groundwa-
7 ter contamination, at and emanating from and the short-term remediation
8 of on-site groundwater contamination at and from a brownfield site.
9 Nothing herein shall restrict a non-responsible party from performing
10 additional remediation of on-site or off-site groundwater contamination
11 at their discretion and recovering the reasonable costs associated with
12 such remediation from a responsible party.
13 (b) A responsible party shall perform a remedial investigation of both
14 on-site and off-site groundwater contamination and both the short and
15 long-term remediation of all groundwater contamination at and from a
16 brownfield site, including off-site contamination.
17 (c) The state shall be responsible for groundwater remediation pursu-
18 ant to paragraph (b) of subdivision nine of this section.
19 (d) Short-term remediation of groundwater contamination shall include,
20 but not be limited to:
21 (1) Source removal.
22 (2) The bulk reduction of contamination to the extent feasible. When
23 measures to accomplish the bulk reduction of contamination have achieved
24 asymptotic levels of contaminant concentration or the measures no longer
25 have the potential to significantly reduce the level of groundwater
26 contamination over time, such bulk reduction is complete.
27 (3) Cooperation with the department's groundwater assessment and moni-
28 toring activities pursuant to title thirty-one of article fifteen of
29 this chapter by providing information on the type, extent, and flow of
30 groundwater contamination and any institutional or engineering controls
31 at this site.
32 (e) Long-term remediation of groundwater contamination shall include,
33 but not be limited to:
34 (1) An evaluation of achieving the restoration of groundwater through
35 the use of active groundwater remedial measures. If such evaluation
36 indicates that groundwater restoration is feasible, the remedy selected
37 in the proposed remedial work plan shall include active measures to
38 achieve such restoration. If it is determined that groundwater restora-
39 tion is not feasible, a technically sound justification for such deter-
40 mination must be provided in the proposed remedial work plan and an
41 assessment completed describing the magnitude of contamination at or
42 emanating from the site currently, and projecting the fate and migration
43 of these contaminants in the groundwater if contaminant concentrations
44 were allowed to decrease to applicable groundwater standards through
45 natural attenuation. In all cases, the uncertainty associated with
46 determining the feasibility of groundwater restoration shall be
47 discussed in the proposed remedial work plan, and contingency measures
48 identified in case such determination is inaccurate.
49 (2) At sites where active measures are being taken to achieve ground-
50 water restoration, a written progress report must be prepared once every
51 five years and approved by the department. Such report shall include an
52 evaluation of: the effectiveness of such measures; the continued feasi-
53 bility of achieving groundwater restoration; whether modifications to
54 such measures are necessary; and whether continued operation of such
55 measures or the use of alternative technologies is appropriate.
A. 7507 22
1 (3) At sites where active measures are not being taken to achieve
2 groundwater restoration, pursuant to a determination that such restora-
3 tion is not feasible, a re-evaluation must be conducted, and a written
4 report on the feasibility of achieving groundwater restoration must be
5 prepared once every five years. Such report must be submitted to and
6 approved by the department. Such evaluation shall include the identifi-
7 cation of new technologies which have been developed that may make it
8 feasible to achieve restoration, and the evaluation, in light of such
9 information, of whether the achievement of restoration is now feasible.
10 If such evaluation indicates that groundwater restoration is feasible,
11 an amended proposed remedial work plan shall be prepared and implemented
12 that includes active measures to achieve such restoration.
13 (4) Cooperation with the department's groundwater assessment and moni-
14 toring activities pursuant to title thirty-one of article fifteen of
15 this chapter by providing information on the type, extent, and flow of
16 groundwater contamination and any institutional or engineering controls
17 at the site, as well as information on ongoing activities to achieve
18 groundwater restoration at the site.
19 (5) Off-site plume stabilization to the extent feasible until ground-
20 water standards are achieved.
21 (f) Multi-source contaminated groundwater areas. Notwithstanding the
22 provisions of paragraphs (a) through (e) of this subdivision, if a
23 brownfield site is located in a multi-source contaminated groundwater
24 area, the following requirements shall apply to remedial actions under-
25 taken by responsible parties, non-responsible parties, and the depart-
26 ment to address contaminated groundwater.
27 (1) Non-responsible parties shall perform the following activities to
28 remediate groundwater in a multi-source contaminated groundwater area:
29 (i) A remedial investigation of on-site groundwater contamination.
30 (ii) On-site source removal in coordination with a multi-source
31 contaminated groundwater remedial work plan prepared and implemented by
32 the department pursuant to subparagraph four of this paragraph.
33 (iii) In lieu of performing source removal requirements pursuant to
34 paragraphs (c) and (e) of subdivision five of this section, the depart-
35 ment may direct the party to pay an allocated site specific portion of
36 the projected costs of implementing the area-wide remedial work plan
37 developed or to be developed by the department pursuant to subparagraph
38 four of this paragraph. Such determination shall be completed in a time
39 frame that is reasonably concurrent with the drafting of the remedial
40 work plan by such non-responsible applicant.
41 (2) Nothing in this subdivision is intended to affect the department's
42 ability to hold a responsible party liable for indivisible contamination
43 under other provisions of law.
44 (3) Responsible parties shall perform the following actions to remedi-
45 ate groundwater contamination in a multi-source contaminated groundwater
46 area:
47 (i) A remedial investigation of both on-site and off-site groundwater
48 contamination.
49 (ii) Source removal.
50 (iii) The bulk reduction of contamination to the extent feasible.
51 (iv) Implementation of the party's site-specific on-site and off-site
52 short- and long-term portion of a multi-source contaminated groundwater
53 area remedial plan, prepared and implemented by the department pursuant
54 to subparagraph four of this paragraph.
55 (v) Payment of the party's site-specific portion of the projected
56 costs of preparing and implementing the area-wide remedial work plan,
A. 7507 23
1 determined by the department pursuant to subparagraph four of this para-
2 graph.
3 (4) The department shall perform the following activities, in consul-
4 tation with the department of health, to remediate groundwater in a
5 multi-source contaminated groundwater area:
6 (i) The identification of all known or suspected sources of groundwa-
7 ter contamination in such multi-source area.
8 (ii) The identification of all parties responsible for groundwater
9 contamination in such multi-source area to the extent that such informa-
10 tion is commonly known or reasonably ascertainable, and all non-respon-
11 sible parties participating or seeking to participate in a brownfield
12 site cleanup agreement at a site located in such area.
13 (iii) The preparation and implementation of a multi-source contam-
14 inated groundwater area remedial work plan, prepared pursuant to the
15 requirements of this section and community participation requirements
16 established in this title, which shall meet the short-term goal of
17 protecting public health and the environment and the long-term goal of
18 restoring fresh groundwater to drinking water quality. Such plan shall
19 include the performance of both short- and long-term groundwater remedi-
20 ation, and shall identify and assign the site-specific short- and long-
21 term remedial activities that must be undertaken by each responsible
22 party and the site-specific short-term remedial activities that must be
23 undertaken by each non-responsible party identified by the department
24 pursuant to this paragraph. Such plan may include the preparation and
25 implementation of a financial contribution allocation process for the
26 remediation of groundwater, including an allocation buyout process which
27 shall enable parties at a brownfield site located in a multi-source area
28 to execute an agreement with the department to pay their site-specific
29 portion of the projected groundwater remediation costs of such area.
30 For responsible parties, the allocation buyout may apply to activities
31 related to clauses (iii) and (iv) of subparagraph three of paragraph (f)
32 of this subdivision - groundwater remediation and their site specific
33 portion of the area-wide remediation plan; for non-responsible parties
34 such allocation buyout may apply to paragraphs (c) and (e) of subdivi-
35 sion five of this section as described in clause (iii) of subparagraph
36 one of paragraph (f) of this subdivision.
37 7. Presumptive remedies. (a) List of presumptive remedies. The depart-
38 ment shall develop a list of recommended remedies that are protective of
39 public health and the environment and can be employed for a variety of
40 site conditions, media, and types of contamination. For each set of site
41 conditions, media, and type of contamination considered, the department
42 shall identify, screen and evaluate remedial alternatives pursuant to a
43 remedy selection process not inconsistent with the national oil and
44 hazardous substances pollution contingency plan (40 CFR Part 300 as of
45 March eighth, nineteen hundred ninety) and shall select one or more
46 presumptive remedies based on their ability to achieve the remedial goal
47 and satisfy the eight remedy selection factors established in subdivi-
48 sions one and two of section 27-1209 of this title, and to achieve the
49 generic contaminant-specific remedial action objectives for soil devel-
50 oped pursuant to paragraph (a) of subdivision three of this section.
51 If, as a result of following such process, the department identifies
52 more than one recommended remedy for a particular set of site condi-
53 tions, media, and type of contamination, the department shall rank such
54 remedies according to their ability to satisfy such remedial goal, reme-
55 dy selection factors, and contaminant-specific remedial action objec-
56 tives for soil.
A. 7507 24
1 (b) Public comment and updating of list. The department shall adopt
2 the list of remedies developed pursuant to paragraph (a) of this subdi-
3 vision and shall update such list at least annually. The initial list
4 shall first be published in draft form for public comment with a public
5 comment period of one hundred twenty days, and be the subject of at
6 least six public hearings throughout the state. Any subsequent list
7 shall be the subject of at least one public hearing with a public
8 comment period of at least sixty days.
9 (c) Department remediation technologies report. The department shall
10 produce a report describing and assessing the universe of commercially
11 available and proven remedial technologies used in New York state, other
12 states and by the federal environmental protection agency, presenting
13 the technologies as a function of the type of media addressed, including
14 groundwater, surface water, soils, and sediment. Such remedial technolo-
15 gies shall be described in detail, with schematics for illustration
16 purposes where appropriate, and grouped into categories including, but
17 not limited to, removal technologies, collection technologies, isolation
18 technologies, containment technologies, on-site treatment technologies,
19 and off-site treatment. Such report shall be updated annually and made
20 available in hard copy and electronically to the public in an accessible
21 format that will assist communities in evaluating proposed remedies for
22 specific sites.
23 (d) Innovative technology. (1) If a remedial technology not yet
24 reviewed by the department for designation as a presumptive remedy is
25 proposed for a set of site conditions, media, and type of contamination
26 for which presumptive remedies have been designated, that remedy must be
27 protective of public health and the environment and shall be evaluated
28 based on its ability to achieve the remedial goal and satisfy the eight
29 remedy selection factors established in subdivisions one and two of
30 section 27-1209 of this title, and to achieve the generic contaminant-
31 specific remedial action objectives for soil developed pursuant to para-
32 graph (a) of subdivision three of this section, and compared to the
33 highest-ranked presumptive remedy. Such evaluation and comparison shall
34 substitute for the identification, screening and evaluation of remedial
35 alternatives that would otherwise be required pursuant to paragraph (c)
36 of subdivision three of this section. In addition, adequate evidence of
37 the effectiveness of the proposed technology shall be provided to the
38 department including the results of any treatability studies, pilot
39 tests or actual full-scale applications of such technology.
40 (2) The commissioner, in consultation with the president of the envi-
41 ronmental facilities corporation, the commissioner of economic develop-
42 ment and other appropriate agencies and authorities, shall initiate a
43 process consistent with section twelve hundred eighty-five-f of the
44 public authorities law requesting proposals to develop, test at the
45 pilot stage, or demonstrate innovative technologies or practices that
46 the commissioner, in consultation with the commissioner of health,
47 considers to be necessary to address priority remediation problems.
48 Priority shall be given to technology research and development projects
49 that address the most prevalent chemicals at contaminated sites and
50 chemicals for which economic feasibility screening shows a need for
51 better technologies to reach standards. The commissioner shall coordi-
52 nate department efforts with federal innovative technology initiatives.
53 8. Emergency response actions and interim remedial measures. The
54 department shall perform or require an applicant to perform emergency
55 response action where a release or potential release of hazardous
56 substances is threatening the immediate health and safety of humans or
A. 7507 25
1 the environment. Where groundwater is being used as drinking water,
2 either from private wells or a public water supply, and is contaminated
3 at levels exceeding drinking water standards, the department shall
4 perform or require an applicant to perform an emergency response action
5 or an interim remedial measure to provide an alternative water supply,
6 or as an alternative, shall ensure that enhanced treatment is installed
7 at such public water supply. The department shall otherwise encourage
8 the appropriate use of interim remedial measures to effectively address
9 a source of contamination, prevent human exposure, and prevent further
10 movement of such substances into the environment before completion of
11 the remedial investigation and/or the remedy selection process. When the
12 need for an emergency response action or interim remedial measure is
13 identified, the applicant shall immediately notify the department. All
14 such activities must be performed with the approval and oversight of the
15 department.
16 (a) Interim remedial measure work plan. For interim remedial measures
17 that are not emergency response actions an interim remedial measure work
18 plan shall be prepared by the applicant containing such provisions as
19 the department deems appropriate.
20 (b) Interim remedial measure report. For interim remedial measures
21 that are not emergency response actions, an interim remedial measure
22 report must be prepared and submitted to the department which shall
23 include a description of all interim remedial measures complete pursuant
24 to the interim remedial measure work plan; the quantities and concen-
25 tration of contaminants removed or treated including all soil removals;
26 any permanent structures which will remain in place after completion of
27 the remedial measure; and any engineering or institutional controls that
28 are required. For interim remedial measures that address groundwater
29 contamination, the interim remedial measure report shall also include:
30 (1) Figures representative of flow conditions immediately preceding
31 initiation of the remedial action and flow conditions representative of
32 pumping conditions; and
33 (2) Graphs depicting changes in contaminant concentration over time
34 for all contaminated non-pumping monitoring points and all downgradient
35 delineation monitoring points.
36 9. Powers of the commissioner. (a) The commissioner shall use best
37 efforts to approve, modify, or reject a proposed remedial work plan
38 within sixty days from its receipt or within sixty days after the end of
39 the public comment period as provided by section 27-1213 of this title,
40 whichever is later.
41 (1) If the commissioner rejects a proposed remedial work plan, the
42 commissioner shall notify the applicant, in writing, and specify the
43 reasons for rejection.
44 (2) If the commissioner approves or modifies a proposed remedial work
45 plan, the commissioner shall notify the applicant, in writing, that the
46 proposed work plan has been approved or modified.
47 (b) Within three months of the execution of a brownfield site cleanup
48 agreement with a non-responsible party pursuant to this title, the
49 department shall bring an enforcement action against any parties known
50 or suspected to be responsible for soil or groundwater contamination at
51 or emanating from the site which is the subject of such agreement. If
52 such action cannot be brought, or does not result in the initiation of a
53 remedial program by such party or parties at such site, the department
54 shall:
55 (1) within one year of the execution of such agreement, begin a reme-
56 dial program to perform the remediation of off-site soil and the short-
A. 7507 26
1 term remediation of groundwater contamination. Such remediation shall be
2 carried out in accordance with the remedial and citizen participation
3 requirements established in this title, and be completed in a time frame
4 that is reasonably concurrent with the completion of the remedial
5 program being performed by such non-responsible party.
6 (2) perform long-term on-site remediation of groundwater pursuant to
7 this section and title thirty-one of article fifteen of this chapter
8 after a non-responsible party has met their short-term remedial respon-
9 sibilities pursuant to this section; and
10 (3) perform the long-term, off-site remediation of groundwater, pursu-
11 ant to this section, and to the provisions of title thirty-one of arti-
12 cle fifteen of this chapter.
13 (c) If the department has found that a site constitutes a significant
14 threat pursuant to paragraph (g) of subdivision (2) of section 27-1207
15 of this title, the state shall use monies from the site investigation
16 and construction account established pursuant to section 97-b of the
17 state finance law to undertake remediation of contamination pursuant to
18 this subdivision.
19 (d) The costs incurred by the state relative to the remediation of
20 contamination pursuant to paragraph (b) of this subdivision and/or
21 subdivision eight of this section shall be recoverable from the person
22 or persons responsible.
23 10. No further action determination. If, pursuant to a remedial inves-
24 tigation report required pursuant to subdivision one of this section,
25 the applicant can certify that the site meets the requirements set forth
26 in paragraph (a) of subdivision three of this section, Track 1 - unre-
27 stricted use requirements, the applicant may request a "no further
28 action determination" from the department, which if granted would quali-
29 fy them for a covenant not to sue pursuant to section 27-1219 of this
30 title.
31 §§ 27-1213. Community participation.
32 1. Community participation handbook. The commissioner shall prepare a
33 community participation handbook for the purpose of providing guidance
34 to applicants in the design and implementation of meaningful community
35 participation plans consistent with the requirements of this section for
36 the remediation of brownfield sites as provided in this title. Such
37 handbook shall encourage community involvement by outlining opportu-
38 nities and recommended methods for effective community participation.
39 The commissioner shall distribute such handbook to all applicants and
40 other interested members of the public and shall make it available on
41 the department's website.
42 2. Community participation plans.
43 (a) The design of any community participation plan, including the
44 level of community involvement and the tools utilized, shall take into
45 account the scope and scale of the proposed remedial program, local
46 interest and history, and other relevant factors. While retaining flexi-
47 bility, community participation plans shall embody the following princi-
48 ples of meaningful community participation:
49 (1) opportunities for community involvement should be provided as
50 early as possible in the decision making process prior to the selection
51 of a preferred course of action by the department and/or the applicant.
52 (2) activities proposed in such plan should be as reflective of the
53 diversity of interests and perspectives found within the community as
54 possible, combining opportunities for broad participation, such as
55 public hearings, with opportunities for more on-going involvement, such
56 as advisory committees. Participation in forums or advisory committees
A. 7507 27
1 should be open to any persons wishing to participate. All meetings of
2 smaller working groups or committees should be open to the public, and
3 all formal minutes, correspondence, and work product of such bodies
4 should be made available to the public.
5 (3) participation activities should provide all participants with the
6 opportunity to have their views heard and considered.
7 (4) participation activities should provide opportunities for two-way
8 dialogue and the free exchange of viewpoints and information.
9 (5) full, timely, and accessible disclosure and sharing of information
10 shall be provided, including the provision of technical data and the
11 assumptions upon which analyses are based.
12 (b) All community participation plans shall include the following
13 minimum elements:
14 (1) identification of the interested public and preparation of a
15 brownfield site contact list;
16 (2) identification of major issues of public concern;
17 (3) identification of public and government agency information needs;
18 (4) a description and schedule of public participation activities
19 required pursuant to this section; and
20 (5) a description and schedule of any additional public participation
21 activities needed to address public concerns.
22 3. Community participation in site remediation. (a) Any person who
23 submits a request to the department to participate in a brownfield site
24 cleanup agreement pursuant to section 27-1207 of this title shall
25 provide public notice and newspaper notice of intent to participate in
26 the brownfield site remedial program. Such notice shall include descrip-
27 tive information respecting the contaminated site, its exact location
28 and any current, intended, or reasonably anticipated reuse plans. [will make it impossible to keep plans secret from competitors]
29 (b) Pursuant to subdivision two of this section, the applicant shall
30 prepare a community participation plan for site remediation consistent
31 with the requirements of this section. The goal of the plan shall be to
32 provide opportunities for the residents of the community within which a
33 site is located to meaningfully participate in the entire decision
34 making process as set forth in this title.
35 (c) At a minimum, a community participation plan for site remediation
36 must provide for the following:
37 (1) Establishment of document repositories at the start of the remedi-
38 al program by the applicant or the department. Documents developed over
39 the course of the brownfield site remedial program shall be placed in
40 such repositions for public inspection and copying. For an interim
41 remedial measure with a planning period of more than six months, docu-
42 ment repositories must be established before such measure is conducted.
43 (2) Provision of public notice and newspaper notice and the mailing of
44 a fact sheet prepared by the department to the brownfield site contact
45 list at the following program milestones:
46 (i) prior to approval of the draft remedial investigation work plan,
47 which notice and fact sheet shall include the availability of the draft
48 work plan, a brief analysis of the proposed investigation, and a request
49 for public comments;
50 (ii) prior to approval of any draft interim remedial measure work
51 plan, which notice and fact sheet shall include a brief analysis of the
52 proposed measure, and a request for public comments;
53 (iii) at the time of any request by the applicant for a "no further
54 action determination" from the department, which notice and fact sheet
55 shall briefly summarize the results of the remedial investigation and
56 the facts supporting the applicant's certification pursuant to subdivi-
A. 7507 28
1 sion ten of section 27-1211 of this title and announce such request's
2 availability and the timeframes, processes and location for the comment
3 period and public meeting;
4 (iv) at the completion of the proposed remedial work plan, which
5 notice and fact sheet shall announce such plan's availability and the
6 timeframes, processes and location for the comment period and public
7 meeting, and briefly summarize the proposed remedial work plan, includ-
8 ing but not limited to sufficient information to provide a reasonable
9 explanation of the proposed remedy and, if the site is being remediated
10 pursuant to paragraph (b) or (c) of subdivision three of section 27-1211
11 of this title, a summary of the applicant's reasons for selecting it
12 over other alternatives considered; and
13 (v) prior to the issuance of a certificate of completion, which notice
14 and fact sheet shall announce the availability of the final engineering
15 report and the timeframes and processes for the comment period on such
16 report, and briefly summarize such report, including but not limited to
17 sufficient information to provide a reasonable explanation of how reme-
18 diation requirements have been or will be achieved as described in
19 section 27-1217 of this title.
20 (3) Mailing of a fact sheet prepared by the department to the brown-
21 field site contact list at the following remedial milestones:
22 (i) before an interim remedial measure which is not an emergency
23 response action is conducted, which fact sheet shall announce the
24 planned start date for field work and describe the nature and objective
25 of and the major activities to be performed as part of such measure. For
26 an interim remedial measure with a planning period of less than six
27 months, if such fact sheet cannot be distributed prior to the start of
28 field work, an alternative method of providing notice, such as telephone
29 calls to the site contact list and/or door-to-door notification of adja-
30 cent residents, shall be provided;
31 (ii) at the time of any issuance of a "no action determination" by the
32 department, which fact sheet shall provide a summary of the department's
33 reasons for finding that the site meets the requirements of subdivision
34 ten of section 27-1211 of this title, and provide a summary and response
35 to each of the significant comments, criticisms and new data submitted
36 to the department;
37 (iii) when the remedial work plan is approved, which fact sheet shall
38 describe the selected remedy and any significant changes from the
39 proposed remedy including, if the site is being remediated pursuant to
40 paragraph (b) or (c) or subdivision three of section 27-1211 of this
41 title, a summary of the department's reasons for approving the proposed
42 remedy over other alternatives considered, and provide a summary and
43 response to each of the significant comments, criticisms and new data
44 submitted to the department;
45 (iv) before finalizing the remedial design for the remedial
46 construction process, which fact sheet shall describe such design and
47 the general construction schedule, highlighting final draft plans and
48 specifications;
49 (v) before the start of remedial construction, which fact sheet shall
50 announce the planned start date for construction, describe major
51 construction activities and the general construction schedule, and
52 announce the availability session; and
53 (vi) at the completion of remedial construction, which fact sheet
54 shall announce the completion of construction activities, describe how
55 the remedy has remediated hazardous substances, and, if applicable,
A. 7507 29
1 describe any proposed operation and maintenance requirements, use
2 restrictions, and/or environmental easements.
3 (4) Provision of public comment periods on: (i) the proposed remedial
4 investigation work plan, which period shall be a minimum of thirty days;
5 (ii) any proposed work plan for an interim remedial measure with a plan-
6 ning period of more than six months, which period shall be a minimum of
7 thirty days; (iii) any request for a "no further action determination"
8 pursuant to subdivision ten of section 27-1211 of this title, which
9 period shall be a minimum of sixty days; (iv) the proposed remedial work
10 plan, which period shall be a minimum of sixty days and (v) the final
11 engineering report, which period shall be a minimum of thirty days.
12 (5) Provision of an opportunity for submission of oral comments at a
13 public meeting at or near the site on: (i) any request for a "no further
14 action determination" pursuant to subdivision ten of section 27-1211 of
15 this title and (ii) the proposed remedial work plan. The department
16 shall provide a summary and response to each of the significant
17 comments, criticisms and new data submitted to the department during the
18 public comment period and meeting on such determination or plan and make
19 such responsiveness summary available to the public in the document
20 repositories required pursuant to this section.
21 (6) Provision of a public availability session prior to the start of
22 remedial construction, the purpose of which session shall be to explain
23 the upcoming construction and address public concerns and questions.
24 (7) Notification of the municipal government in which the brownfield
25 site is located of any use restrictions, engineering or institutional
26 controls, and/or operation and maintenance requirements which apply to
27 the site within ten days of the department's approving a certificate of
28 completion pursuant to section 27-1217 of this title.
29 (c) Prior to the approval of any draft remedial investigation work
30 plan pursuant to section 27-1211 of this title, the commissioner shall
31 review the adequacy of the applicant's community participation plan for
32 site remediation, taking into account the minimum requirements estab-
33 lished in this section and the principles and recommendations contained
34 in the community participation handbook.
35 §§ 27-1215. Citizen technical assistance grants.
36 1. Within the limits of appropriations made available pursuant to
37 title five of article fifty-six of this chapter or section sixteen-n of
38 the New York state urban development corporation act or any other appro-
39 priation for such purpose, the commissioner is authorized to provide
40 grants to any organization or group of individuals who may be affected
41 by a brownfield site remedial program. Furthermore, the commissioner is
42 authorized to direct any applicant who is a responsible party, as
43 defined in this title, to provide such grants. Such grants shall be
44 known as technical assistance grants and may be used to obtain technical
45 assistance in interpreting information with regard to the nature of the
46 hazard posed by hazardous substances located at or emanating from a
47 brownfield site or sites and the development and implementation of a
48 brownfield site remedial program or programs, including the remedial
49 investigation and choice of remedy; interim remedial measures; health
50 and exposure assessments; selection, design, and construction of the
51 remedial action; long-term site monitoring, operation, and maintenance;
52 and the implementation, maintenance, monitoring and enforcement of any
53 institutional or engineering controls. Such grants may also be used:
54 (a) for gathering information to assess a remedy selection decision;
A. 7507 30
1 (b) to hire health and safety experts to advise affected residents on
2 health assessment and contamination data gathering efforts and remedial
3 activities;
4 (c) to hire a community liaison to applicants, municipalities, commu-
5 nity based organizations, and government agencies;
6 (d) to hire experts to file comments with municipalities, community
7 based organizations and government agencies and generate other documents
8 as necessary to ensure full participation by the grant recipient;
9 (e) to hire experts to provide input into the design of any health
10 studies that a government agency performs;
11 (f) for the exchange of information among grant recipients within the
12 state; and
13 (g) for training funds for interested affected community members to
14 enable them to more effectively participate in the remedy selection
15 process. Grants awarded under this section may not be used for the
16 purposes of collecting field sampling data.
17 2. The initial amount of any grant awarded under this section may not
18 exceed fifty thousand dollars for any single grant recipient at any one
19 site. The commissioner may waive this requirement and increase the
20 amount of the grant, as appropriate, to reflect the complexity of reme-
21 dial activities, the nature and extent of contamination at the site, the
22 level of site activity, projected total needs as requested by the grant
23 recipient, the size and diversity of the affected population, and the
24 ability of the grant recipient to identify and raise funds from other
25 sources. The total amount of such grant, however, may not exceed one
26 percent of the expense of developing and implementing a brownfield site
27 remedial program pursuant to this title. Upon a showing by the grant
28 recipient that the total expense of the technical assistance for which
29 such grant is made, including administrative expenses, shall exceed the
30 grant limit, the commissioner may waive the limit to cover administra-
31 tive expenses in an amount not to exceed twenty percent of the total
32 grant. Grants may be renewed as necessary to facilitate public partic-
33 ipation at all stages of remedial actions.
34 3. No matching contribution from the grant recipient shall be required
35 for a technical assistance grant. Following a grant award, a portion of
36 the grant shall be made available to the grant recipient, in advance of
37 the expenditures to be covered by the grant, in five thousand dollar
38 installments.
39 4. The department shall establish, by regulation, guidance for deter-
40 mining that the recipient of a technical assistance grant is a legiti-
41 mate representative of the community affected by the site. To ensure
42 that the grant application process is accessible to all affected citi-
43 zens, the department shall periodically review such process and, based
44 on such review, shall implement appropriate changes to the application
45 process to improve access. Technical or other experts hired by grant
46 recipients under this section shall be hired pursuant to guidelines
47 developed by the department.
48 §§ 27-1217. Certification of completion.
49 1. When the applicant can certify that the remediation requirements
50 set forth in the remedial work plan as well as the relevant provisions
51 of sections 27-1209 and 27-1211 of this title have been achieved for the
52 brownfield site, such applicant shall submit to the department a final
53 engineering report prepared by an individual licensed or otherwise
54 authorized in accordance with article one hundred forty-five of the
55 education law to practice the profession of engineering.
56 2. A final engineering report shall include, at a minimum:
A. 7507 31
1 (a) a description of the remediation activities completed pursuant to
2 the remedial work plan for the brownfield site;
3 (b) a certification that the data submitted to the department demon-
4 strates that the remediation requirements set forth in the remedial work
5 plan and the relevant provisions of sections 27-1209 and 27-1211 of this
6 title have been or will be achieved in accordance with the timeframes,
7 if any, established in such work plan;
8 (c) a complete description of any institutional controls employed at
9 the site, including the mechanisms that will be used to continually
10 implement, maintain, monitor, and enforce such controls both by the
11 applicant, their successors and assigns, and by state or local govern-
12 ment;
13 (d) a certification that any use restrictions, institutional controls,
14 engineering controls and/or any operation and maintenance requirements
15 applicable to the site are contained in an environmental easement
16 created and recorded pursuant to title thirty-six of article seventy-one
17 of this chapter and that any affected local governments, as defined in
18 title thirty-six of article seventy-one of this chapter have been noti-
19 fied that such easement has been recorded;
20 (e) a certification that an operation and maintenance plan has been
21 submitted by the applicant for the continual and proper operation, main-
22 tenance, and monitoring of any engineering controls employed at the site
23 including the proper maintenance of any remaining monitoring wells, and
24 that such plan has been approved by the department; and
25 (f) a certification that any financial assurance mechanisms required
26 by the department pursuant to this title have been executed.
27 3. Upon receipt of the final engineering report, the department shall
28 review such report and the data submitted pursuant to the brownfield
29 site cleanup agreement as well as any other relevant information regard-
30 ing the brownfield site. Upon satisfaction of the commissioner that the
31 remediation requirements set forth in the remedial work plan and the
32 relevant provisions of sections 12-1209 and 12-1211 of this title have
33 been or will be achieved in accordance with the timeframes, if any,
34 established in the plan, the commissioner shall issue a written certif-
35 icate of completion.
36 4. In addition to the requirements of this section, if the applicant
37 at a brownfield site is a responsible party and the site was remediated
38 pursuant to paragraph (c) of subdivision three of section 27-1211 of
39 this title, such applicant shall certify that the active commercial or
40 industrial use required pursuant to subdivision four of section 27-1209
41 of this title has been achieved or will be achieved within two years of
42 the issuance of a certificate of completion pursuant to this section and
43 shall be maintained at the site. Such certification of active use shall
44 be a condition of any certificate of completion issued pursuant to this
45 section.
46 5. Failure to satisfy any terms or conditions of the certificate of
47 completion including but not limited to the failure to maintain any
48 institutional or engineering controls employed at such site or failure
49 to achieve active commercial or industrial use at such site shall render
50 the certification void after notice and opportunity to be heard.
51 §§ 27-1219. Covenant not to sue.
52 1. After the department has issued a certificate of completion or a no
53 further action determination for a brownfield site, the department shall
54 provide the applicant with a covenant not to sue pursuant to this
55 section for any liability, including any future liability or claim for
56 further remediation of hazardous substances at or emanating from the
A. 7507 32
1 brownfield site that was the subject of such certificate or determi-
2 nation.
3 (a) The state nonetheless shall reserve all of its rights concerning,
4 and such covenant shall not extend to, any further investigation and/or
5 remediation the department deems necessary:
6 (1) due to environmental contamination at, on, under, or migrating
7 from the brownfield site that were unknown to the department at the time
8 of its issuance of the certification of completion or the no further
9 action determination, if, in light of such conditions, the site no long-
10 er meets the requirements of the remedial work plan for such site or the
11 requirements for a no further action determination pursuant to this
12 title; or
13 (2) due to non-compliance with the remedial work plan and the certif-
14 icate of completion required by this title; or
15 (3) due to fraud committed by the applicant in demonstrating that site
16 eligibility requirements had been met, that the requirements of the
17 remedial work plan for the site or the requirements for a no further
18 action determination pursuant to this title had been met by the appli-
19 cant, or where any other fraudulent act resulted in the applicant's
20 avoiding the need for further remediation of such brownfield site or
21 otherwise failing to comply with this chapter, the navigation law, or
22 other statutory provision as it applies to the site; or
23 (4) due to a change in an environmental standard, factor, or criteria
24 upon which the remedial work plan or no further action determination was
25 based, which renders the brownfield site remedial program proposed or
26 implemented at the site no longer consistent with the requirements for
27 the remedial program set forth in this title; or
28 (5) due to information received, in whole or in part, after the
29 department's issuance of the certification of completion or the no
30 further action determination, which indicates that the activities
31 performed, or to be performed, under a brownfield site cleanup agreement
32 will not be, or are not, protective of the public health or the environ-
33 ment.
34 (b) In the case of a non-responsible party applicant, subparagraph
35 four of paragraph (a) of this subdivision shall not apply if track 1 -
36 unrestricted use as provided in section 27-1211 of this title is
37 achieved.
38 2. The covenant not to sue issued pursuant to this section shall
39 extend to the applicant's successors or assigns through acquisition of
40 title to the brownfield site to which the covenant applies and to a
41 person who develops or otherwise occupies the brownfield site; provided
42 that such persons act with reasonable care and in good faith to adhere
43 to the requirements of the brownfield site cleanup agreement and certif-
44 icate of completion. However, such covenant does not extend, and cannot
45 be transferred, to a person who is responsible for the disposal on such
46 site of hazardous substances or the discharge of petroleum according to
47 applicable principles of statutory or common law liability as of the
48 effective date of the certification of completion for the remedial work
49 plan, unless that person was party to the brownfield site cleanup agree-
50 ment pursuant to this article for the brownfield site on which such
51 covenant was based. Such covenant shall be recorded and indexed as a
52 declaration of covenant in the office of the recording officer for the
53 county or counties where such brownfield site is located in the manner
54 prescribed by article nine of the real property law within thirty days
55 of signing the certificate of completion of the remedial work plan if
A. 7507 33
1 the applicant is an owner or within thirty days of acquiring title to
2 the brownfield site if the person is a prospective purchaser.
3 3. The provisions of this title shall not affect an action or a claim,
4 including a claim for contribution, that an applicant who implements or
5 completes a remedial work plan executed by such applicant and the
6 department pursuant to this section has or may have against a third
7 party.
8 4. Nothing in this section shall be construed to affect either the
9 liability of any person with respect to any costs, damages, or investi-
10 gative or remedial activities that are not included in the remedial
11 investigation work plan and/or remedial work plan for the brownfield
12 site or the department's authority to maintain an action or proceeding
13 against any person who is not subject to the remedial work plan.
14 5. Nothing in this section shall be construed to affect the authority
15 of the department to reach settlement with other persons consistent with
16 its authority under applicable law.
17 6. Nothing in this section shall affect the liability of any person
18 with respect to any civil action brought by a party other than the
19 state.
20 §§ 27-1221. Change of use; certification of use; and departmental data-
21 base.
22 1. Change of use. No person may engage in a change of use, as defined
23 in subdivision nine of section 27-1205 of this title at a brownfield
24 site until prior written notification is given to the department at
25 least sixty days in advance of such change. [even for Track One (unrestricted use) cleanups? Why?]
26 (a) The notification shall include a description of the contemplated
27 change and how such change may affect the property's proposed, ongoing,
28 or completed remediation, including but not limited to the ability to
29 implement and maintain the engineering and institutional controls asso-
30 ciated with the brownfield site remediation. Failure to provide such
31 written notification shall render void any covenant not to sue provided
32 pursuant to section 27-1219 of this title after notice and opportunity
33 to be heard.
34 (b) If the commissioner determines that such proposed use is not
35 consistent with any restrictions placed upon the use of the property or
36 that the proposed change of use will interfere with any proposed,
37 future, ongoing, or completed remedial program, or otherwise expose the
38 environment or public health to an increased threat of harm, he or she
39 shall, within forty-five days after receipt of the complete notice
40 required by this section, provide the person giving such notice with a
41 written determination that such change of use will not be authorized,
42 together with the reasons for such determination. Any such determination
43 by the commissioner shall be reviewable pursuant to article seventy-
44 eight of the civil practice law and rules. If the manner in which the
45 use of the site is being changed is to establish or expand residential
46 use of the site, no such change to or expansion of residential use of
47 the site may be commenced without the written consent of the commission-
48 er of health.
49 (c) In the case of a transfer of title with no planned physical alter-
50 ation or property subject to remediation pursuant to this title, owners
51 of property shall provide notice of proposed transfers of title within
52 thirty days in advance of the transfer.
53 2. Certification of use. The owner of a brownfield site at which
54 institutional or engineering controls are employed pursuant to this
55 title shall annually submit to the department a written statement certi-
56 fying under penalty of perjury that the institutional controls and/or
A. 7507 34
1 engineering controls employed at such site are unchanged from the previ-
2 ous certification and that nothing has occurred that would constitute a
3 violation of any such controls, or a violation or failure to comply with
4 any operation and maintenance plan for such controls and giving access
5 to such real property to evaluate continued maintenance of such
6 controls. In addition, for sites remediated by a responsible party
7 pursuant to paragraph (c) of subdivision three of section 27-1211 of
8 this title, such owner shall certify that the active commercial or
9 industrial use required pursuant to subdivision four of section 27-1209
10 of this title has been achieved and is being maintained at the site. A
11 brief summary of such certification shall be mailed to any site opera-
12 tors, site residents, and the parents or legal guardians of any children
13 enrolled in a school or daycare center located on the site; and to any
14 adjacent site owners, operators or adjacent residents, or parents or
15 legal guardians of any children enrolled in a school or daycare center
16 located on an adjacent site, if such adjacent site is subject to any
17 institutional or engineering controls or any operation and maintenance
18 plan employed to control contamination at or emanating from such brown-
19 field site.
20 3. Departmental database. The commissioner shall create, update, and
21 maintain a database system for public information purposes and to moni-
22 tor and track all brownfield sites subject to this title. Data incorpo-
23 rated into such system for each site for which information has been
24 collected pursuant to this title shall include, but shall not be limited
25 to, a site summary, name of site owner, location, status of site activ-
26 ity, and, if one has been created pursuant to title thirty-six of arti-
27 cle seventy-one of this chapter, a copy of the environmental easement,
28 and a contact number to obtain additional information. Sites shall be
29 added to such system upon the execution of a brownfield site cleanup
30 agreement pursuant to section 27-1207 of this title. If and when an
31 environmental easement is modified or extinguished, the copy of the
32 environmental easement contained in the database shall be updated
33 accordingly. In addition to site specific data, such system shall incor-
34 porate other relevant data, such as sanborn maps when they become digi-
35 tized, and area-wide designations, including empire zones and zone
36 equivalent areas established pursuant to article eighteen-B of the
37 general municipal law. The data in such system shall be coordinated
38 with any state or local marketing program for the redevelopment of
39 brownfield sites. Such database shall be in such a format that it can be
40 easily searched by affected local governments and the public for
41 purposes including but not limited to determining whether an environ-
42 mental easement has been recorded for a site pursuant to title thirty-
43 six of article seventy-one of this chapter. The database shall be avail-
44 able electronically. Information from this database shall be
45 incorporated into the geographic information system created and main-
46 tained by the department pursuant to section 3-0315 of this chapter.
47 §§ 27-1223. Access to brownfield sites.
48 The department, by and through the commissioner, is authorized to:
49 1. Require that any person permit a duly designated officer or employ-
50 ee of the department or of a municipal corporation, or any agent,
51 consultant, or contractor of the department, or of a municipal corpo-
52 ration, or any other person, including an employee, agent, consultant,
53 or contractor of a responsible person acting at the direction of the
54 department, so authorized in writing by the commissioner, to enter upon
55 any brownfield site for which a person has applied to participate in a
A. 7507 35
1 brownfield site remedial program, which has or may have been the site of
2 a release of hazardous substances, for the following purposes:
3 (a) to inspect and take samples of such hazardous waste and/or envi-
4 ronmental media utilizing such sampling methods as may be necessary or
5 appropriate including without limitation soil borings and monitoring
6 wells; provided however, that no sampling methods involving the substan-
7 tial disturbance of the ground surface of such property may be utilized
8 until after a minimum of ten days written notice thereof shall have been
9 provided to the owner and operator and occupant of such property, if
10 identifiable by reasonable efforts, unless the commissioner makes a
11 written determination that such notice will not allow the protection of
12 the public health or the environment, in which case two days written
13 notice shall be sufficient; or
14 (b) to implement the investigation and/or remediation of hazardous
15 waste and/or environmental media; provided, that no such work may be
16 undertaken until after a minimum of ten days written notice thereof
17 shall have been provided to the owner and operator and occupant of such
18 property, if identifiable by reasonable efforts, unless the commissioner
19 makes a written determination that such notice will not allow the
20 protection of the public health or the environment, in which case two
21 days written notice shall be sufficient.
22 2. (a) Request that any person furnish to the department, in a form
23 and manner as prescribed by the department, information relating to the
24 current and past hazardous substance generation, treatment, storage,
25 disposal and/or transportation activities of such person or any other
26 person now or formerly under the control of such person; in the event
27 such person cannot comply therewith, in whole or in part, such person
28 shall furnish to the department information describing all efforts made
29 by such person to comply therewith; any information so furnished to the
30 department shall be considered a "written instrument" as defined in
31 subdivision three of section 175.00 of the penal law;
32 (b) Request that any person permit a duly designated officer or
33 employee of the department, at all reasonable times, to have access to
34 and to copy all books, papers, documents, and records relating to the
35 current and past hazardous waste and/or petroleum generation, treatment,
36 storage, disposal, and/or transportation activities of such person or
37 any person now or formerly under the control of such person;
38 (c) Require by subpoena issued in the name of the department, the
39 production of books, papers, documents, and other records, and the
40 rendition of testimony by deposition under oath of any person relating
41 to the current and past hazardous waste and/or petroleum generation,
42 treatment, storage, disposal and/or transportation activities of such
43 person or any person now or formerly under the control of such person;
44 such subpoenas and depositions shall be regulated by the civil practice
45 law and rules; the commissioner may invoke the powers of the supreme
46 court of the state of New York or any other court of competent jurisdic-
47 tion to compel compliance therewith.
48 §§ 27-1225. Rules and regulations.
49 The commissioner shall promulgate rules and regulations necessary and
50 appropriate to carry out the purposes of this title.
51 §§ 2. The environmental conservation law is amended by adding a new
52 section 3-0315 to read as follows:
53 §§ 3-0315. Geographic information system.
54 The department shall create, or modify an existing geographic informa-
55 tion system, and maintain such system for purposes including but not
56 limited to incorporating information from remedial programs under their
A. 7507 36
1 jurisdiction, such as programs in title twelve and title thirteen of
2 article twenty-seven, title thirty-one of article fifteen, and title
3 five of article fifty-six of this chapter, and article twelve of the
4 navigation law.
5 §§ 3. Subdivisions 1 and 3 of section 27-1301 of the environmental
6 conservation law, subdivision 1 as amended by chapter 857 of the laws of
7 1982 and subdivision 3 as added by chapter 282 of the laws of 1979, are
8 amended and two new subdivisions 1-a and 8 are added to read as follows:
9 1. "Hazardous waste" means a waste which appears on the list or satis-
10 fies the characteristics promulgated by the commissioner pursuant to
11 section 27-0903 of this [chapter and, until, but not after, the promul-
12 gation of such list, a waste or combination of wastes, which because of
13 its quantity, concentration, or physical, chemical or infectious charac-
14 teristics may:
15 a. Cause, or significantly contribute to an increase in mortality or
16 an increase in serious irreversible or incapacitating reversible
17 illness; or
18 b. Pose a substantial present or potential hazard to human health or
19 the environment when improperly treated, stored, transported, disposed
20 or otherwise managed] article and any substance which appears on the
21 list promulgated pursuant to section 37-0103 of this chapter, or any
22 mixture thereof; provided, however, that the term "hazardous waste"
23 does not include:
24 (a) Natural gas, natural gas liquids, liquefied natural gas, synthetic
25 gas usable for fuel, or mixtures of natural gas and such synthetic gas;
26 nor
27 (b) The residue of emissions from the engine exhaust of a motor vehi-
28 cle, rolling stock, aircraft, vessel, or pipeline pumping station on
29 engine; nor
30 (c) Source, byproduct, or special nuclear material from a nuclear
31 incident, as those terms are defined in the atomic energy act of 1954,
32 if such release is subject to requirements with respect to financial
33 protection established under section 170 of such act (42 U.S.C. 2210)
34 or, for the purpose of section 104 of the comprehensive environmental
35 response, compensation and liability act of 1980 (42 U.S.C. 9604) or any
36 other response action, any source, byproduct, or special nuclear materi-
37 al from any processing site designated under section 102 (A)(1) or
38 302(A) of the Uranium Mill Tailings Radiation Control Act of 1978 (42
39 U.S.C. 7912(A)(1) or 7942(A)); nor
40 (d) Petroleum as defined in section one hundred seventy-two of the
41 navigation law, even if appearing on the list promulgated pursuant to
42 section 37-0103 of this chapter.
43 1-a. "Financial assurance" shall include but not be limited to surety
44 bonds, trust funds, letters of credit, insurance or a multiple of finan-
45 cial mechanisms as determined to be adequate by the department.
46 3. "Inactive hazardous waste disposal site remedial program" means
47 activities undertaken to eliminate, remove, abate, control or monitor
48 health and/or environmental hazards or potential hazards in connection
49 with inactive hazardous waste disposal sites or to treat or dispose of
50 wastes and waste contaminated materials from such sites including, but
51 not limited to, grading, contouring, trenching, grouting, capping, exca-
52 vation, transporting, incineration, chemical treatment, biological
53 treatment or construction of leachate collection and treatment facili-
54 ties. If an inactive hazardous waste disposal site remedial program
55 includes institutional and/or engineering controls, the owner of such
56 real property shall provide financial assurances to ensure the long-term
A. 7507 37
1 implementation, maintenance, monitoring, and enforcement of any such
2 controls, and shall create and record an environmental easement pursuant
3 to title thirty-six of article seventy-one of this chapter and notify
4 any affected local governments, as defined in title thirty-six of arti-
5 cle seventy-one of this chapter, that such easement has been recorded.
6 8. "Change of use" shall mean any activity other than activities
7 conducted pursuant to an inactive hazardous waste disposal site remedial
8 program approved by the department which is likely to disrupt or expose
9 hazardous waste or to increase direct human exposure to hazardous waste;
10 any conduct that will or may tend to interfere with a proposed, ongoing
11 or completed inactive hazardous waste disposal site remedial program; or
12 any activity which is not consistent with any restrictions placed upon
13 the use of an inactive hazardous waste disposal site.
14 §§ 4. Section 27-1309 of the environmental conservation law is REPEALED
15 and a new section 27-1309 is added to read as follows:
16 §§ 27-1309. Access to sites.
17 The department, by and through the commissioner, is authorized to:
18 1. Require that any person permit a duly designated officer or employ-
19 ee of the department or of a municipal corporation, or any agent,
20 consultant, or contractor of the department, or of a municipal corpo-
21 ration, or any other person, including an employee, agent, consultant,
22 or contractor of a responsible person acting at the direction of the
23 department, so authorized in writing by the commissioner, to enter upon
24 any inactive hazardous waste disposal site for the following purposes:
25 (a) to inspect and take samples of such hazardous waste and/or envi-
26 ronmental media utilizing such sampling methods as may be necessary or
27 appropriate including without limitation soil borings and monitoring
28 wells; provided however, that no sampling methods involving the substan-
29 tial disturbance of the ground surface of such property may be utilized
30 until after a minimum of ten days written notice thereof shall have been
31 provided to the owner and operator and occupant of such property, if
32 identifiable by reasonable efforts, unless the commissioner makes a
33 written determination that such notice will not allow the protection of
34 the public health or the environment, in which case two days written
35 notice shall be sufficient; or
36 (b) to implement the investigation and/or remediation of hazardous
37 waste and/or environmental media; provided, that no such work may be
38 undertaken until after a minimum of ten days written notice thereof
39 shall have been provided to the owner and operator and occupant of such
40 property, if identifiable by reasonable efforts, unless the commissioner
41 makes a written determination that such notice will not allow the
42 protection of the public health or the environment, in which case two
43 days written notice shall be sufficient.
44 2. (a) Require that any person furnish to the department, in a reason-
45 able form and manner as prescribed by the department, information relat-
46 ing to the current and past hazardous waste generation, treatment, stor-
47 age, disposal and/or transportation activities of such person or any
48 other person now or formerly under the control of such person; in the
49 event such person cannot comply therewith, in whole or in part, such
50 person shall furnish to the department information describing all
51 efforts made by such person to comply therewith; any information so
52 furnished to the department shall be considered a "written instrument"
53 as defined in subdivision three of section 175.00 of the penal law;
54 (b) Require that any person permit a duly designated officer or
55 employee of the department, at all reasonable times, to have access to
56 and to copy all books, papers, documents, and records relating to the
A. 7507 38
1 current and past hazardous waste and/or petroleum generation, treatment,
2 storage, disposal, and/or transportation activities of such person or
3 any person now or formerly under the control of such person;
4 (c) Require by subpoena issued in the name of the department, the
5 production of books, papers, documents, and other records, and the
6 rendition of testimony by deposition under oath of any person relating
7 to the current and past hazardous waste and/or petroleum generation,
8 treatment, storage, disposal and/or transportation activities of such
9 person or any person now or formerly under the control of such person;
10 such subpoenas and depositions shall be regulated by the civil practice
11 law and rules; the commissioner may invoke the powers of the supreme
12 court of the state of New York or any other court of competent jurisdic-
13 tion to compel compliance therewith.
14 §§ 5. Section 27-1317 of the environmental conservation law is REPEALED
15 and a new section 27-1317 is added to read as follows:
16 §§ 27-1317. Change of use; certification of use; and departmental data-
17 base.
18 1. Change of use. No person may engage in a change of use, as defined
19 in subdivision eight of section 27-1301 of this title at an inactive
20 hazardous waste site until prior written notification is given to the
21 department at least sixty days in advance of such change.
22 (a) The notification shall include a description of the contemplated
23 change and how such change may affect the property's proposed, ongoing,
24 or completed remediation, including but not limited to the ability to
25 implement the engineering and institutional controls associated with the
26 site remediation.
27 (b) If the commissioner determines that such proposed use is not
28 consistent with any restrictions placed upon the use of the property or
29 that the proposed change of use will interfere with any proposed,
30 future, ongoing, or completed remedial program, or otherwise expose the
31 environment or public health to an increased threat of harm, he or she
32 shall, within forty-five days after receipt of the complete notice
33 required by this section, provide the person giving such notice with a
34 written determination that such change of use will not be authorized,
35 together with the reasons for such determination. Any such determination
36 by the commissioner shall be reviewable pursuant to article seventy-
37 eight of the civil practice law and rules. If the manner in which the
38 use of the site is being changed is to establish or expand residential
39 use of the site, no such change to or expansion of residential use of
40 the site may be commenced without the written consent of the commission-
41 er of health.
42 (c) In the case of title transfers with no planned physical alteration
43 of property subject to remediation pursuant to this title, owners of
44 property shall provide notice of proposed transfers of title within
45 thirty days in advance of the transfer.
46 2. Certification of use. The owner of an inactive hazardous waste site
47 at which institutional or engineering controls are employed pursuant to
48 this title shall annually submit to the department a written statement
49 certifying under penalty of perjury that the institutional controls
50 and/or engineering controls employed at such site are unchanged from the
51 previous certification and that nothing has occurred that would consti-
52 tute a violation of any such controls, or a violation or failure to
53 comply with any operation and maintenance plan for such controls and
54 giving access to such real property reasonable under the circumstances
55 to evaluate continued maintenance of such controls.
A. 7507 39
1 3. Departmental database. The commissioner shall create, update, and
2 maintain a database system for public information purposes and to moni-
3 tor and track all sites subject to this title. Data incorporated into
4 such system for each site shall include, but shall not be limited to, a
5 site summary, name of site owner, location, status of site activity,
6 and, if one has been created pursuant to title thirty-six of article
7 seventy-one of this chapter, a copy of the environmental easement, and a
8 contact number to obtain additional information. Sites shall be added to
9 such system at such time that the site is listed in the registry of
10 inactive hazardous waste sites pursuant to section 27-1305 of this
11 title. If and when an environmental easement is modified or extin-
12 guished, the copy of the environmental easement contained in the data-
13 base shall be updated accordingly. In addition to site specific data,
14 such system shall incorporate other relevant data, such as sanborn maps
15 when they become digitized, and area-wide designations, including empire
16 zones and zone equivalent areas established pursuant to article eigh-
17 teen-B of the general municipal law. The data in such system shall be
18 coordinated with any state or local marketing program for the redevelop-
19 ment of brownfield sites. Such database shall be in such a format that
20 it can be easily searched by affected local governments and the public
21 for purposes including but not limited to determining whether an envi-
22 ronmental easement has been recorded for a site pursuant to title thir-
23 ty-six of article seventy-one of this chapter. The database shall be
24 available electronically. Information from this database system shall
25 be incorporated into the geographic information system created and/or
26 maintained by the department pursuant to section 3-0315 of this chapter.
27 §§ 6. Section 27-1316 of the environmental conservation law is REPEALED
28 and a new section 27-1316 is added to read as follows:
29 §§ 27-1316. Citizen participation in site remediation.
30 1. Citizen participation handbook. The commissioner shall prepare a
31 citizen participation handbook for the purpose of providing guidance to
32 the department, the department of health, and responsible parties in the
33 design and implementation of meaningful citizen participation plans
34 consistent with the requirements of this section for the remediation of
35 inactive hazardous waste sites pursuant to this title. Such handbook
36 shall encourage citizen involvement by outlining opportunities and
37 recommended methods for effective citizen participation. The commission-
38 er shall distribute such handbook to all responsible parties and other
39 interested members of the public and shall make it available on the
40 department's website.
41 2. Citizen participation plans. (a) The design of any citizen partic-
42 ipation plan, including the level of citizen involvement and the tools
43 utilized, shall take into account the scope and scale of the proposed
44 remedial program, local interest and history, and other relevant
45 factors. While retaining flexibility, citizen participation plans shall
46 embody the following principles of meaningful citizen participation:
47 (1) opportunities for citizen involvement should be provided as early
48 as possible in the decision making process prior to the selection of a
49 preferred course of action by the department, the department of health
50 and/or the responsible party.
51 (2) activities proposed in such plan should be as reflective of the
52 diversity of interests and perspectives found within the community
53 affected by the site as possible, combining opportunities for broad
54 participation, such as public hearings, with opportunities for more
55 on-going involvement, such as advisory committees. Participation in
56 forums or advisory committees should be open to any persons wishing to
A. 7507 40
1 participate. All meetings of smaller working groups or committees should
2 be open to the public, and all formal minutes, correspondence, and work
3 product of such bodies should be made available to the public.
4 (3) participation activities should provide all participants with the
5 opportunity to have their views heard and considered.
6 (4) participation activities should provide opportunities for two-way
7 dialogue and the free exchange of viewpoints and information.
8 (5) full, timely, and accessible disclosure and sharing of information
9 shall be provided, including the provision of technical data and the
10 assumptions upon which analyses are based.
11 (b) All citizen participation plans shall include the following mini-
12 mum elements:
13 (1) identification of the interested public and preparation of an
14 inactive hazardous waste site contact list;
15 (2) identification of major issues of public concern;
16 (3) identification of public and government agency information needs;
17 (4) a description and schedule of public participation activities
18 required pursuant to this section; and
19 (5) a description and schedule of any additional public participation
20 activities needed to address public concerns.
21 3. Citizen participation requirements. (a) When a site is listed on
22 the registry of inactive hazardous waste disposal sites, or its classi-
23 fication in such registry is changed pursuant to section 27-1305 of this
24 title, the department shall provide public notice regarding such listing
25 or reclassification. Such notice shall include, but not be limited to, a
26 brief description of the site and its location, and a summary of the
27 reasons for such listing or reclassification.
28 (b) Before the start of the remedial investigation/feasibility study
29 for a particular site, the department shall develop or require the
30 responsible party to develop a site-specific citizen participation plan
31 consistent with the requirements established in this section. The goal
32 of the plan shall be to provide opportunities for the residents of the
33 community within which a site is located to meaningfully participate in
34 the entire decision making process as set forth in this title. The plan
35 shall detail the citizen participation activities that will be imple-
36 mented for the particular site. In addition, in those cases where
37 enforcement activities are being carried out in relation to a site, such
38 site-specific plan shall describe how the department or, where relevant,
39 the department of law, will keep the public apprised of the nature of
40 the discussions with potentially responsible parties. The site-specific
41 plan shall provide for informing the community of the availability of
42 technical assistance grants.
43 (c) At a minimum, a citizen participation plan for site remediation
44 must provide for the following:
45 (1) Establishment of document repositories at the start of the remedi-
46 al program by the responsible party or the department. Documents devel-
47 oped over the course of the inactive hazardous waste site remedial
48 program shall be placed in such repositories for public inspection and
49 copying. For an interim remedial measure with a planning period of more
50 than six months, document repositories must be established before such
51 measure is conducted.
52 (2) Provision of public notice and newspaper notice and the mailing of
53 a fact sheet prepared by the department to the site contact list at the
54 following program milestones:
55 (i) Prior to approval of the draft remedial investigation plan, which
56 notice shall include the availability of the draft plan, with a notice
A. 7507 41
1 and brief analysis of the proposed investigation, and a request for
2 public comments;
3 (ii) Prior to approval of an interim remedial measure, if such measure
4 is not an emergency response action, with a notice and brief analysis of
5 the proposed measure and a request for public comments; and
6 (iii) At the completion of the proposed remedial action plan, which
7 notice and fact sheet shall announce such plan's availability and the
8 timeframes, processes and location for the comment period and public
9 hearing, and briefly summarize such plan, including but not limited to
10 sufficient information to provide a reasonable explanation of the
11 proposed remedy and a summary of the department's reasons for selecting
12 it over other alternatives considered.
13 (3) Mailing of a fact sheet prepared by the department to the site
14 contact list at the following remedial milestones:
15 (i) Before an interim remedial measure which is not an emergency
16 response action is conducted, which fact sheet shall announce the
17 planned start date for field work and describe the nature and objectives
18 of and the major activities to be performed as part of such measure. For
19 an interim remedial measure with a planning period of less than six
20 months, if such fact sheet cannot be distributed prior to the start of
21 field work, an alternative method of providing notice, such as telephone
22 calls to the site contact list and/or door-to-door notification of adja-
23 cent residents, shall be provided;
24 (ii) When the remedial action plan is approved, which fact sheet shall
25 describe the selected remedy, any significant changes from the proposed
26 remedy, and provide a summary and response to each of the significant
27 comments, criticisms and new data submitted to the department;
28 (iii) Before finalizing the remedial design for the remedial
29 construction process, which fact sheet shall describe the remedial
30 action plan and general construction schedule, highlighting final draft
31 plans and specifications;
32 (iv) Before the start of remedial construction, which fact sheet shall
33 announce the planned start date for construction, describe major
34 construction activities and the general construction schedule, and
35 announce the availability session; and
36 (v) At the completion of remedial construction, which fact sheet shall
37 announce the completion of construction activities, describe how the
38 remedy has remediated hazardous waste, and, if applicable, describe any
39 proposed operation and maintenance requirements, use restrictions,
40 and/or environmental easements.
41 (4) Provision of public comment periods on: (i) the proposed remedial
42 investigation plan, which period shall be a minimum of forty-five days;
43 (ii) any proposed interim remedial measure with a planning period of
44 more than six months, which period shall be a minimum of thirty days;
45 and (iii) the proposed remedial action plan, which period shall be a
46 minimum of sixty days.
47 (5) Provision of an opportunity for submission of oral comments on the
48 proposed remedial action plan at a public meeting at or near the site.
49 The department shall prepare a summary and response to each of the
50 significant comments, criticisms and new data submitted to the depart-
51 ment during the public comment period and meeting on such plan and make
52 such responsiveness summary available to the public in the document
53 repositories required pursuant to this section.
54 (6) Provision of a public availability session prior to the start of
55 remedial construction, the purpose of which session shall be to explain
56 the upcoming construction and address public concerns and questions.
A. 7507 42
1 (7) Notification of the municipal government in which the site is
2 located of any use restrictions, engineering or institutional controls,
3 and/or operation and maintenance requirements which apply to the site
4 within ten days of the department's approval of such restrictions,
5 controls and/or requirements.
6 4. Prior to the approval of any draft remedial investigation plan the
7 commissioner shall review the adequacy of the responsible party's or the
8 department's citizen participation plan for site remediation, taking
9 into account the minimum requirements established in this section and
10 the principles and recommendations contained in the citizen partic-
11 ipation handbook.
12 5. The requirements of this section shall apply to all citizen partic-
13 ipation programs, whether implemented by the department or by a person
14 acting under order issued under authority of this title, whether after
15 hearing or on consent.
16 6. Any responsible party shall provide such assistance as the depart-
17 ment shall deem necessary to carry out citizen participation activities
18 at the site for which they are responsible. Responsible parties shall be
19 liable for the cost of any expenses associated with the development and
20 implementation of citizen participation activities at the site for which
21 they are responsible.
22 7. The commissioner is authorized to provide, or order a person acting
23 under order issued under the authority of this title, whether after
24 hearing or on consent, to provide, grants to any organization or group
25 of individuals who may be affected by an inactive hazardous waste
26 disposal site remedial program. (a) Such grants shall be known as tech-
27 nical assistance grants and may be used to obtain technical assistance
28 in interpreting information with regard to the nature of the hazard
29 posed by hazardous waste located at or emanating from an inactive
30 hazardous waste disposal site or sites and the development and implemen-
31 tation of an inactive hazardous waste disposal site remedial program or
32 programs, including the remedial investigation and choice of remedy;
33 interim remedial measures; health and exposure assessments; selection,
34 design, and construction of the remedial action; long-term site monitor-
35 ing, operation, and maintenance, and the implementation, maintenance,
36 monitoring and enforcement of any institutional or engineering controls.
37 Such grants may also be used:
38 (1) for gathering information to assess a remedy selection decision;
39 (2) to hire health and safety experts to advise affected residents on
40 health assessment and contamination data gathering efforts and remedial
41 activities;
42 (3) to hire a community liaison to potentially responsible parties,
43 municipalities and government agencies;
44 (4) to hire experts to file comments with municipalities, community
45 based organizations and government agencies and generate other documents
46 as necessary to ensure full participation by the grant recipient;
47 (5) to hire experts to provide input into the design of any health
48 studies that a government agency performs;
49 (6) for the exchange of information among grant recipients within the
50 state; and
51 (7) for training funds for interested affected community members to
52 enable them to more effectively participate in the remedy selection
53 process. Grants awarded under this section may not be used for the
54 purposes of collecting field sampling data.
55 (b) The initial amount of any grant awarded under this section may not
56 exceed fifty thousand dollars for any single grant recipient at any one
A. 7507 43
1 site. The commissioner may waive this requirement and increase the
2 amount of the grant, as appropriate, to reflect the complexity of reme-
3 dial activities, the nature and extent of contamination at the site, the
4 level of site activity, projected total needs as requested by the grant
5 recipient, the size and diversity of the affected population, and the
6 ability of the grant recipient to identify and raise funds from other
7 sources. The total amount of such grant, however, may not exceed one
8 percent of the expense of developing and implementing an inactive
9 hazardous waste disposal site remedial program pursuant to this title.
10 Upon a showing by the grant recipient that the total expense of the
11 technical assistance for which such grant is made, including administra-
12 tive expenses, shall exceed the grant limit, the commissioner may waive
13 the limit to cover administrative expenses in an amount not to exceed
14 twenty percent of the total grant. Grants may be renewed as necessary to
15 facilitate public participation at all stages of remedial actions.
16 (c) No matching contribution from the grant recipient shall be
17 required for a technical assistance grant. Following a grant award, a
18 portion of the grant shall be made available to the grant recipient, in
19 advance of the expenditures to be covered by the grant, in five thousand
20 dollar installments.
21 (d) The department shall establish, by regulation, guidance for deter-
22 mining that the recipient of a technical assistance grant is a legiti-
23 mate representative of the community affected by the site. To ensure
24 that the grant application process is accessible to all affected citi-
25 zens, the department shall periodically review such process and, based
26 on such review, shall implement appropriate changes to the application
27 process to improve access. Technical or other experts hired by grant
28 recipients under this section shall be hired pursuant to guidelines
29 developed by the department.
30 8. For the purposes of this section:
31 (a) "Brownfield site contact list" shall mean a list of persons,
32 government agencies, groups, or organizations who may be affected by or
33 interested in the remediation of an inactive hazardous waste disposal
34 site, including all elected officials of municipalities with jurisdic-
35 tion over the area in which such site is located; all site owners, oper-
36 ators, and site residents, all adjacent property owners, operators, and
37 adjacent residents and the parents of any children enrolled in a school
38 or daycare center located on or adjacent to the site; local and regional
39 news organizations serving the area in which such site is located; any
40 person who has contacted a government agency or locally elected official
41 verbally or in writing, or who has attended a public meeting, and
42 expressed interest in such site; local neighborhood associations; local
43 environmental organizations; citizen, civic, or business organizations
44 with an interest in local environmental, land use, or economic develop-
45 ment issues; and any other persons, groups, or organizations who may be
46 affected by or interested in such site.
47 (b) "Document repository" shall mean a repository of inactive hazard-
48 ous waste disposal site remedial program documents established in the
49 regional office of the department in the region where an inactive
50 hazardous waste disposal site is located and in a publicly accessible
51 building near the location of such site.
52 (c) "Newspaper notice" shall mean the placement of a prominently
53 located, paid newspaper advertisement in the community bulletin section
54 or similar local section of a newspaper of general circulation in the
55 vicinity of the inactive hazardous waste disposal which is the subject
56 of the notice. Such notice shall be in English and in any other language
A. 7507 44
1 spoken by significant numbers of people within the community on the
2 project or brownfield site contact list.
3 (d) "Public notice" shall mean publication of a notice or fact sheet
4 in the environmental notice bulletin and a mailing thereof to all muni-
5 cipalities with jurisdiction over the area in which an inactive hazard-
6 ous waste disposal site is located; all site owners, operators, and site
7 residents, and all adjacent property owners, operators, and adjacent
8 residents; and all persons on the project or brownfield site contact
9 list.
10 §§ 7. The environmental conservation law is amended by adding a new
11 section 27-1323 to read as follows:
12 §§ 27-1323. Liability exemptions and defenses.
13 1. Lender exemption. (a) For purposes of this title no lender shall
14 incur any liability from any statutory claims of the state as an owner
15 or operator of a site, or a person responsible for the disposal of a
16 hazardous waste at such site, provided such lender, without participat-
17 ing in the management of such site, holds indicia of ownership primarily
18 to protect the lender's security interest in the site or, if such lender
19 did not participate in the management of such site prior to a foreclo-
20 sure on such site, notwithstanding that such lender:
21 (1) forecloses on such site; and
22 (2) after foreclosure, sells, re-leases (in the case of a lease
23 finance transaction), or liquidates such site, maintains business activ-
24 ities, winds up operations, or takes any other measure to preserve,
25 protect or prepare such site prior to sale or disposition; provided,
26 however, that such lender shall take actions to sell, re-lease (in the
27 case of a lease finance transaction), or otherwise divest itself of such
28 site at the earliest practicable, commercially reasonable time, on
29 commercially reasonable terms, taking into account market conditions and
30 legal and regulatory requirements.
31 (b) This exemption shall not apply to any lender that has caused or
32 contributed to the release or threatened release of a hazardous waste
33 from or onto the site, or to any lender that generated, transported, or
34 disposed of, arranged for, or that caused the generation, transporta-
35 tion, or disposal of hazardous waste from or onto such site.
36 (c) For purposes of this section:
37 (1) The term "participating in management" means actually participat-
38 ing in the management or operational affairs of a site and does not
39 include merely having the capacity to influence, or the unexercised
40 right to control, site operations.
41 (i) A lender who holds indicia of ownership primarily to protect a
42 security interest in such site shall be considered to participate in
43 management only if, while the borrower is in possession of such site
44 encumbered by the security interest, the lender:
45 (A) exercises decision making control over the environmental compli-
46 ance related to such site, such that the lender has undertaken responsi-
47 bility for the hazardous waste handling or disposal practices related to
48 such site; or
49 (B) exercises control at a level comparable to that of a manager of
50 such site, such that the lender has assumed or manifested responsibil-
51 ity:
52 (I) for the overall management of such site encompassing day-to-day
53 decision making with respect to environmental compliance; or
54 (II) over all or substantially all of the operational functions,
55 excluding financial or administrative functions, of such site other than
56 the function of environmental compliance.
A. 7507 45
1 (ii) The term "participate in management" does not include:
2 (A) Performing an act or failing to act prior to the time at which a
3 security interest is created in a site;
4 (B) Holding a security interest or abandoning or releasing a security
5 interest;
6 (C) Including in the terms of an extension of credit, or in a contract
7 or security agreement relating to such extension, a covenant, warranty,
8 or other term or condition that relates to environmental compliance;
9 (D) Monitoring or enforcing the terms and conditions of the extension
10 of credit or security interest;
11 (E) Monitoring or undertaking one or more inspections of such site;
12 (F) Requiring a response action or other lawful means of addressing
13 the release or threatened release of a hazardous waste in connection
14 with such site prior to, during, or on the expiration of the term of the
15 extension of credit;
16 (G) Providing financial or other advice or counseling in an effort to
17 mitigate, prevent, or cure default or diminution in the value of such
18 site;
19 (H) Restructuring, renegotiating, or otherwise agreeing to alter the
20 terms and conditions of the extension of credit or security interest,
21 exercising forbearance;
22 (I) Exercising other remedies that may be available under applicable
23 law for the breach of a term or condition of the extension of credit or
24 security agreement; or
25 (J) Conducting a response action under 42 U.S.C. Section 9607(d) or
26 under the direction of an on-scene coordinator appointed under the
27 national contingency plan if the actions do not rise to the level of
28 participating in management within the meaning of this subparagraph.
29 (2) The term "extension of credit" includes a lease finance trans-
30 action:
31 (i) In which the lessor does not initially select the leased site and
32 does not during the lease term control the daily operations or mainte-
33 nance of such site; or
34 (ii) That conforms with regulations issued by the appropriate federal
35 banking agency or the appropriate state bank supervisor (as those terms
36 are defined in section 3 of the federal deposit insurance act (12 U.S.C.
37 1813)) or with regulations issued by the national credit union adminis-
38 tration board, as appropriate.
39 (3) The term "financial or administrative function" includes a func-
40 tion such as that of a credit manager, accounts payable officer,
41 accounts receivable officer, personnel manager, comptroller, or chief
42 financial officer, or a similar function.
43 (4) The terms "foreclosure" and "foreclose" mean, respectively,
44 acquiring and to acquire, a site through:
45 (i) Purchase at sale under a judgment or decree, power of sale, or
46 nonjudicial foreclosure sale;
47 (ii) A deed in lieu of foreclosure or similar conveyance from a trus-
48 tee;
49 (iii) Repossession if such site was security for an extension of cred-
50 it previously contracted;
51 (iv) Conveyance pursuant to an extension of credit previously
52 contracted, including the termination of a lease agreement; or
53 (v) Any other formal or informal manner by which the lender acquires,
54 for subsequent disposition, title to or possession of a site in order to
55 protect the lender's security interest.
56 (5) The term "lender" means:
A. 7507 46
1 (i) An insured depository institution as defined in section 3 of the
2 federal deposit insurance act (12 U.S.C. 1813);
3 (ii) An insured credit union as defined in section 101 of the federal
4 credit union act (12 U.S.C. 1752);
5 (iii) A bank or association chartered under the farm credit act of
6 1971 (12 U.S.C. 2001 et seq.);
7 (iv) A leasing or trust company that is an affiliate of an insured
8 depository institution;
9 (v) Any person, including a successor or assignee of any such person,
10 that makes a bona fide extension of credit to or takes or acquires a
11 security interest from a nonaffiliated person;
12 (vi) The federal national mortgage association, the federal home loan
13 mortgage corporation, the federal agricultural mortgage corporation, or
14 any other entity that in a bona fide manner buys or sells loans or
15 interests in loans;
16 (vii) A person that insures or guarantees against a default in the
17 repayment of an extension of credit, or acts as a surety with respect to
18 an extension of credit, to a nonaffiliated person; and
19 (viii) A person that provides title insurance and that acquires a
20 vessel or site as a result of assignment or conveyance in the course of
21 underwriting claims and claims settlement.
22 (6) The term "operational function" includes a function such as that
23 of a site or plant manager, operations manager, chief operating officer,
24 or chief executive officer.
25 (7) The term "security interest" includes a right under a mortgage,
26 deed of trust, assignment, judgment, lien, pledge, security agreement,
27 factoring agreement, or lease, and any other right accruing to a person
28 to secure the repayment of money, the performance of a duty, or any
29 other obligation by a nonaffiliated person.
30 2. Municipal exemption. (a) For the purposes of this title no public
31 corporation shall incur any liability from any statutory claims of the
32 state as an owner or operator of a site, or a person responsible for the
33 disposal of a hazardous waste at such site, if such public corporation
34 acquired such site involuntarily, and such public corporation retained
35 such site without participating in the development of such site.
36 (b) This exemption shall not apply to any public corporation that has
37 caused or contributed to the release or threatened release of a hazard-
38 ous waste from or onto the site, or to any public corporation that
39 generated, transported, or disposed of, arranged for, or that caused the
40 generation, transportation, or disposal of hazardous waste, from or
41 onto, the site.
42 (c) When used in this section:
43 (1) "Public corporation" means a public corporation as defined in
44 section sixty-five of the general construction law, a local public
45 authority, supervisory district, improvement district within a county,
46 city, town, or village, or Indian nation or tribe recognized by the
47 state or the United States with a reservation wholly or partly within
48 the boundaries of New York state, or any combination thereof.
49 (2) "Involuntary acquisition of ownership or control" includes but is
50 not limited to the following:
51 (i) Acquisitions by a public corporation in its sovereign capacity,
52 including but not limited to acquisitions pursuant to abandonment
53 proceedings or bequest;
54 (ii) Acquisitions by a public corporation, or its agent, acting as a
55 conservator or receiver pursuant to a clear and direct statutory mandate
56 or regulatory authority;
A. 7507 47
1 (iii) Acquisitions of assets through foreclosure and its equivalents,
2 or otherwise, by a public corporation in the course of administering a
3 loan, loan guarantee, tax lien, or tax forbearance agreement, or loan
4 insurance program; or
5 (iv) Acquisitions by a public corporation pursuant to seizure, injunc-
6 tion, condemnation, or forfeiture authority; provided that such owner-
7 ship or control is not retained primarily for investment purposes.
8 (d) For the purpose of this section, the terms "foreclosure" and
9 "foreclose" mean, respectively, acquiring or to acquire a brownfield
10 site through:
11 (1) purchase at sale under a judgment or decree, power of sale, or
12 non-judicial foreclosure sale;
13 (2) a deed in lieu of foreclosure, or similar conveyance, or abandon-
14 ment from a person or trustee;
15 (3) conveyance pursuant to an extension of credit or tax forbearance
16 previously contracted; or
17 (4) any other formal or informal manner by which a person acquires,
18 for subsequent disposition, title to or possession of a site in order to
19 protect the security interest of the public corporation or lender.
20 (e) "Participating in development" means the carrying out, or causing
21 or permitting the carrying out, of any above-grade improvements to the
22 site or any other environmental investigation or remediation, except for
23 those improvements which are part of a site remedial program pursuant to
24 this article or in furtherance of site safety, such as fencing or light-
25 ing, but does not include licensing, regulatory oversight, or the mere
26 capacity to regulate or influence, or the unexercised right to control
27 the operation of the property. For purposes of this section, participat-
28 ing in development does not include:
29 (1) having the capacity to influence management of a site;
30 (2) having the unexercised right to control or to regulate the site or
31 operations thereof;
32 (3) holding, abandoning, or releasing a security interest or tax lien
33 on such site;
34 (4) including a condition relating to environmental compliance in a
35 contract, permit, license, or security agreement;
36 (5) monitoring or enforcing the terms and conditions of an agreement
37 or tax forbearance agreement;
38 (6) monitoring or undertaking one or more inspections of a site
39 including, but not limited to, boring test wells;
40 (7) exercising other remedies available under applicable laws;
41 (8) licensing, permitting, or granting permits, certificates of occu-
42 pancy and variances as allowed by law and/or regulation;
43 (9) applying for or participating in federal or state statutory
44 programs or benefits; or
45 (10) declining to take any of the actions described in subparagraphs
46 one through nine of this paragraph.
47 (f) Any public corporation that has taken possession of a site shall
48 notify the department of any release of hazardous waste within ten days
49 of obtaining actual knowledge of such release, unless a shorter notice
50 period is required under any other provision of law, in which case the
51 shorter notice period controls. Failure to notify the department within
52 the ten day or shorter notification period shall result in the loss of
53 the exemption set forth in this section.
54 3. Fiduciary liability cap. For the purposes of this title, liability
55 on the part of a fiduciary shall not exceed the assets held in the fidu-
56 ciary capacity if such person is not liable independently of such
A. 7507 48
1 person's ownership as a fiduciary or actions taken in a fiduciary capac-
2 ity including, but not limited to, the fiduciary's negligently causing
3 or contributing to the release or threatened release of hazardous waste
4 at such site.
5 (a) For purposes of this subdivision:
6 (1) the term "fiduciary" means a person acting for the benefit of
7 another party as a bona fide trustee; executor; administrator; custo-
8 dian; guardian of estates or guardian ad litem; receiver; conservator;
9 committee of estates of incapacitated person; personal representative;
10 trustee (including a successor to a trustee) under an indenture agree-
11 ment, trust agreement, lease, or similar financing agreement, for debt
12 securities, certificates of interest or certificates of participation in
13 debt securities, or other forms of indebtedness as to which the trustee
14 is not, in the capacity of trustee, the lender; or representative in any
15 other capacity that the department, after providing public notice,
16 determines to be similar to the various capacities previously described
17 in this paragraph; and does not include either a person that is acting
18 as a fiduciary with respect to a trust or other fiduciary estate that
19 was organized for the primary purpose of, or is engaged in, actively
20 carrying on a trade or business for profit, unless the trust or other
21 fiduciary estate was created as part of, or to facilitate, one or more
22 estate plans or because of the incapacity of a natural person or a
23 person that acquires ownership or control of a property with the objec-
24 tive purpose of avoiding liability of the person or any other person.
25 (2) the term "fiduciary capacity" means the capacity of a person in
26 holding title to a property, or otherwise having control of or an inter-
27 est in a property, pursuant to the exercise of the responsibilities of
28 the person as a fiduciary.
29 (b) Nothing in this subdivision affects the rights or immunities or
30 other defenses that are available under law that are applicable to a
31 person subject to this section; or creates any liability for a person or
32 a private right of action against a fiduciary or any other person.
33 (c) Nothing in this subdivision applies to a person if that person
34 acts in a capacity other than that of a fiduciary or in a beneficiary
35 capacity and in that capacity, directly or indirectly benefits from a
36 trust or fiduciary relationship; or is a beneficiary and a fiduciary
37 with respect to the same fiduciary estate and, as a fiduciary, receives
38 benefits that exceed customary or reasonable compensation, and inci-
39 dental benefits, permitted under other applicable law.
40 (d) This subdivision does not preclude a claim under this chapter
41 against the assets of the estate or trust administered by the fiduciary;
42 or a nonemployee agent or independent contractor retained by a fiduci-
43 ary.
44 4. Affirmative defenses. (a) There shall be no liability under this
45 title for a person otherwise liable who can establish by a preponderance
46 of the evidence that the significant threat to the environment attribut-
47 able to hazardous waste disposed at an inactive hazardous waste disposal
48 site was caused solely by: (1) an act of God; (2) an act of war; or (3)
49 an act or omission of a third party other than an employee or agent of
50 such person, or than one whose act or omission occurs in connection with
51 a contractual relationship existing directly or indirectly with such
52 person (except where the sole contractual arrangement arises from a
53 published tariff and acceptance for carriage by a common carrier or
54 rail), if such person establishes by a preponderance of the evidence
55 that: (i) such person exercised due care with respect to the hazardous
56 waste concerned, taking into consideration the characteristics of such
A. 7507 49
1 hazardous waste, in light of all relevant facts and circumstances, and
2 (ii) took precautions against foreseeable acts or omissions of any such
3 third party and the consequences that could foreseeably result from such
4 acts or omissions; or any combination of them.
5 (b) For purposes of this section, (1) the term "act of God" means an
6 unanticipated grave natural disaster or other natural phenomenon of an
7 exceptional, inevitable, and irresistible character, the effects of
8 which could not have been prevented or avoided by the exercise of due
9 care or foresight, (2) the term, "contractual relationship," includes,
10 but is not limited to, land contracts, deeds, or other instruments
11 transferring title or possession, unless the real property on which the
12 site concerned is located was acquired by such person after the disposal
13 or placement of the hazardous waste on, in, or at such site, and such
14 person establishes one or more of the circumstances described in clause
15 (i), (ii), or (iii) of this subparagraph by a preponderance of the
16 evidence:
17 (i) At the time such person acquired the site such person did not know
18 and has no reason to know that any hazardous waste which is the subject
19 of the significant threat determination was disposed of on, in, or at
20 the site; or
21 (ii) Such person is a government entity which acquired the site by
22 escheat, or through any other involuntary transfer or acquisition or
23 through the exercise of eminent domain authority by purchase or condem-
24 nation; or
25 (iii) Such person acquired the site by inheritance or bequest. In
26 addition to establishing the foregoing, the person must establish that
27 he or she has satisfied the requirements of clauses (i) and (ii) of
28 subparagraph three of paragraph (a) of this subdivision, provides full
29 cooperation, assistance, and site access to the persons that are author-
30 ized to conduct remedial actions at the site (including the cooperation
31 and access necessary for the installation, integrity, operation, and
32 maintenance of any complete or partial remedial action at the site), is
33 in compliance with any land use restrictions established or relied on in
34 connection with the remedial action at a site and does not impede the
35 effectiveness or integrity of any institutional and/or engineering
36 control employed at the site in connection with a remedial action.
37 (c)(1) To establish that the person had no reason to know of the
38 matter described in clause (i) of subparagraph two of paragraph (b) of
39 this subdivision, the person must demonstrate to a court that:
40 (i) on or before the date on which the person acquired the site, the
41 person carried out all appropriate inquires, as provided in subpara-
42 graphs two and four of this paragraph, into the previous ownership and
43 uses of the site in accordance with generally accepted good commercial
44 and customary standards and practices; and
45 (ii) the person took reasonable steps to:
46 (A) stop any continuing release;
47 (B) prevent any threatened future release; and
48 (C) prevent or limit any human, environmental, or natural resource
49 exposure to any previously released hazardous waste.
50 (2) Not later than one year after the effective date of this section,
51 the commissioner shall by regulation establish standards and practices
52 for the purpose of satisfying the requirement to carry out all appropri-
53 ate inquires under subparagraph one of this paragraph.
54 (3) In promulgating regulations that establish the standards and prac-
55 tices referred to in subparagraph two of this paragraph, the commission-
56 er shall include each of the following:
A. 7507 50
1 (i) the results of an inquiry by an environmental professional.
2 (ii) interviews with past and present owners, operators, and occupants
3 of the site for the purpose of gathering information regarding the
4 potential for contamination at the site.
5 (iii) reviews of historical sources, such as chain of title documents,
6 aerial photographs, building department records, and land use records,
7 to determine previous uses and occupancies of the real property since
8 the property was first developed.
9 (iv) searches for recorded environmental cleanup liens against the
10 site that are filed under federal, state, or local law.
11 (v) reviews of federal, state, and local government records, waste
12 disposal records, underground storage tank records, and hazardous waste
13 handling, generation, treatment, disposal, and spill records, concerning
14 contamination at or near the site.
15 (vi) visual inspections of the site and of adjoining properties.
16 (vii) specialized knowledge or experience on the part of the person.
17 (viii) the relationship of the purchase price to the value of the
18 property, if the property was not contaminated.
19 (ix) commonly known or reasonably ascertainable information about the
20 property.
21 (x) the degree of obviousness of the presence or likely presence of
22 contamination at the property, and the ability to detect the contam-
23 ination by appropriate investigation.
24 (4)(i) With respect to property purchased before May thirty-first,
25 nineteen hundred ninety-seven, in making a determination with respect to
26 a person described in subparagraph one of this paragraph a court shall
27 take into account:
28 (A) any specialized knowledge or experience on the part of the person;
29 (B) the relationship of the purchase price to the value of the proper-
30 ty, if the property was not contaminated;
31 (C) commonly known or reasonably ascertainable information about the
32 property;
33 (D) the obviousness of the presence or likely presence of contam-
34 ination at the property; and
35 (E) the ability of the person to detect the contamination by appropri-
36 ate inspection.
37 (ii) With respect to property purchased on or after May thirty-first,
38 nineteen hundred ninety-seven, and until the commissioner promulgates
39 the regulations described in subparagraph two of this paragraph, the
40 procedures of the American Society for Testing and Materials, including
41 the document know as 'Standard E1527-97', entitled 'Standard Practice
42 for Environmental Site Assessment: Phase 1 Environmental Site Assessment
43 Process', shall satisfy the requirements in subparagraph one of this
44 paragraph.
45 (5) In the case of property for residential use or other similar use
46 purchased by a nongovernmental or noncommercial entity, a site
47 inspection and title search that reveal no basis for further investi-
48 gation shall be considered to satisfy the requirements of this subpara-
49 graph.
50 (d) Nothing in this subdivision shall diminish the liability of any
51 previous owner or operator of the site who would otherwise be liable
52 under this title. Notwithstanding this subdivision, if such person
53 obtained actual knowledge of the release or threatened release of a
54 hazardous waste at the site when such person owned the site and then
55 subsequently transferred ownership of the site to another person without
56 disclosing such knowledge, such person shall be treated as a person
A. 7507 51
1 responsible for the disposal of hazardous waste at the site, and no
2 defense under this subdivision shall be available to such person. Noth-
3 ing in this subdivision shall affect the liability under this section of
4 a person who, by any act or omission, caused or contributed to the
5 release or threatened release of a hazardous waste which is the subject
6 of such proceeding relating to such site.
7 §§ 8. Article 15 of the environmental conservation law is amended by
8 adding a new title 31 to read as follows:
9 TITLE 31
10 GROUNDWATER PROTECTION AND REMEDIATION PROGRAM
11 Section 15-3101. Short title.
12 15-3102. Legislative findings and intent.
13 15-3103. Purpose.
14 15-3107. Definitions.
15 15-3109. Fresh groundwater as drinking water.
16 15-3111. Groundwater assessment and remediation program.
17 15-3113. Groundwater assessment study.
18 15-3115. Database development and utilization.
19 15-3117. Groundwater quality monitoring.
20 15-3119. Groundwater remediation strategy.
21 15-3121. Groundwater remediation program implementation.
22 15-3123. Rules and regulations.
23 §§ 15-3101. Short title.
24 This title shall be known and may be cited as the "groundwater
25 protection act".
26 §§ 15-3102. Legislative findings and intent.
27 The legislature hereby finds and declares that:
28 1. The waters of the state are one of its most essential natural
29 resources.
30 2. The state is the trustee, for the benefit of its citizens, of all
31 natural resources within its jurisdiction, with the exclusive sovereign
32 power to regulate and control such resources, except to the extent of
33 any delegation of power to the United States.
34 3. Adequate supplies of good quality groundwater are critical to the
35 health and welfare of the residents of the state and to their economic
36 wellbeing. Groundwater contamination exists at levels which exceed
37 applicable standards and guidance values at many sites around the state,
38 including inactive hazardous waste sites, brownfields sites, and sites
39 contaminated by the discharge of petroleum. The levels and types of
40 contaminants, the extent of contamination, and the present and potential
41 impacts on public health and the environment vary widely from site to
42 site, but cumulatively could endanger the future integrity of the water
43 resources of New York state.
44 4. Due to the complexity of groundwater contamination problems, the
45 restoration of groundwater to pre-disposal conditions or drinking water
46 standards may not be feasible at some sites in the short term. As reme-
47 dial technologies continue to evolve, however, the feasibility of
48 restoring groundwater may also change.
49 5. It is the intent of the legislature that fresh groundwater be
50 restored to and/or maintained in its natural condition, free from any
51 degradation caused by human activities. Where groundwater restoration
52 and the prevention of degradation is feasible, it should be achieved.
53 Where it is not currently feasible, the development of methods and tech-
54 nology that will make groundwater restoration and prevention feasible
55 should be encouraged.
56 §§ 15-3103. Purpose.
A. 7507 52
1 It is the intent of the legislature that the department assess and
2 monitor the cumulative impact of groundwater contamination on the
3 state's groundwater resources, develop a strategy to achieve the long-
4 term restoration of all groundwater to drinking water quality, and
5 implement a program to remediate and manage groundwater resources in a
6 manner that will ensure long-term sustainability.
7 §§ 15-3107. Definitions.
8 1."Feasible" or "feasibility" shall mean suitable to site conditions,
9 capable of being successfully carried out with available technology, and
10 cost effective.
11 2."Fresh groundwater" shall mean all groundwater with the exception of
12 those saline waters found in the saturated zone which have chloride
13 concentrations in excess of one thousand milligrams per liter or a total
14 dissolved solids concentration in excess of two thousand milligrams per
15 liter.
16 3."Monitoring well" shall mean any well used to monitor water quality
17 and/or contamination, including but not limited to those at sites reme-
18 diated pursuant to remedial programs under the jurisdiction of the
19 department.
20 §§ 15-3109. Fresh groundwater as drinking water.
21 All fresh groundwater shall be considered to be potential drinking
22 water.
23 §§ 15-3111. Groundwater assessment and remediation program.
24 The commissioner, in consultation with the commissioner of the depart-
25 ment of health, shall develop a comprehensive groundwater assessment and
26 remediation program. Such program shall: assess the quality of groundwa-
27 ter statewide; assess the cumulative impact of groundwater contamination
28 on the state's groundwater resources; develop a strategy to achieve the
29 long-term restoration of all fresh groundwater to drinking water quali-
30 ty; and, implement a program to remediate and manage groundwater
31 resources in a manner that will ensure long-term sustainability.
32 §§ 15-3113. Groundwater assessment study.
33 Within two years of the effective date of this title, the commission-
34 er, in conjunction with the commissioner of the department of health,
35 shall conduct a groundwater assessment and remediation study. Such study
36 shall include, but not be limited to:
37 1. The collection of all commonly known or reasonably ascertainable
38 data on groundwater and aquifer quality and contamination including:
39 (a) data from remedial programs under the jurisdiction of the depart-
40 ment including those in this title, title twelve and title thirteen of
41 article twenty-seven and article twelve of the navigation law and other
42 statewide and local programs pertaining to groundwater resources;
43 (b) data from public supply wells, private drinking water wells, and
44 monitoring wells;
45 (c) the identification of all known or suspected sources of groundwa-
46 ter contamination and all known or suspected areas of contaminated
47 groundwater, including the type and extent of contamination, identified
48 pursuant to the source water assessment program administered by the
49 department of health, or by any other program which the department oper-
50 ates, participates in or has access to including but not limited to
51 programs administered by the United States geological survey; and
52 (d) existing information regarding contaminant flow;
53 2. An assessment of the impact or potential impact of contaminated
54 groundwater on groundwater aquifers, drinking water sources, surface
55 water, and public health and the environment in general, based on infor-
56 mation gathered pursuant to this section;
A. 7507 53
1 3. The preparation of a report on such study, which shall be published
2 in draft form no later than six months following the completion of study
3 activities, with public notice and a public comment period of at least
4 sixty days. The final report shall be submitted to the governor, the
5 legislature, and made available to the general public, and shall include
6 a summary and response to public comments submitted on the draft report.
7 §§ 15-3115. Database development and utilization.
8 1. The department shall develop, update and maintain a database system
9 to monitor and track groundwater contamination. Such data shall be
10 incorporated into a geographic information system created and/or main-
11 tained by the department pursuant to section 3-0315 of this chapter.
12 2. Data incorporated into such system shall include, but is not limit-
13 ed to:
14 (a) data gathered pursuant to sections 15-3113 and 15-3117 of this
15 title;
16 (b) available information on existing groundwater and aquifer contam-
17 ination, data from well logs, including but not limited to the number of
18 wells, location and depth; and
19 (c) a summary of information on any identified contaminated site or
20 area, including but not limited to the site's location, status of reme-
21 dial activity, listing of any use restrictions, description of engineer-
22 ing and institutional controls, and a contact number to obtain addi-
23 tional information.
24 3. Data should not be removed from this database unless it has been
25 determined that the information entered was incorrect.
26 §§ 15-3117. Groundwater quality monitoring.
27 1. The department shall institute a statewide groundwater monitoring
28 program which shall at a minimum periodically update and collect new
29 data regarding groundwater and aquifer quality and contamination,
30 including, but not limited to available data from existing public water
31 supply wells, private drinking water wells where such information is
32 available, and other monitoring wells.
33 2. The results of any groundwater quality monitoring performed by any
34 state agency, municipality or other political subdivision of the state,
35 or any person required to conduct groundwater monitoring by any state
36 agency, municipality or other political subdivision of the state, shall
37 be submitted to the department on an annual basis.
38 3. In each even-numbered year, beginning three years after the effec-
39 tive date of this title, the department, in cooperation with the depart-
40 ment of health and other agencies which may be participating in the
41 monitoring of groundwater resources, shall submit a report on the status
42 and results of groundwater monitoring to the governor, the legislature,
43 and make such report available to the general public.
44 §§ 15-3119. Groundwater remediation strategy.
45 No later than three years after the effective date of this title, the
46 department, in consultation with the department of health, shall develop
47 and publish a strategy to achieve the long-term restoration of all fresh
48 groundwater to drinking water quality and to protect groundwater from
49 future degradation.
50 1. Such strategy shall govern all programs within the department
51 responsible for groundwater protection, remediation and restoration.
52 Such strategy shall include, but not be limited to:
53 (a) Recognition that both short- and long-term remediation strategies
54 may be necessary to accomplish the restoration of fresh groundwater to
55 drinking water quality.
A. 7507 54
1 (b) Identification of existing technologies available to remediate and
2 ultimately restore contaminated groundwater.
3 (c) Identification of actions that can be taken to encourage, facili-
4 tate and support the development of new technologies capable of remedi-
5 ating and ultimately restoring contaminated groundwater.
6 (d) Identification of the long-term groundwater remedial activities
7 which responsible parties are obligated to perform pursuant to title
8 twelve of article twenty-seven of this chapter.
9 (e) Identification of the long-term groundwater remedial activities
10 that are required to be taken by the state pursuant to title twelve of
11 article twenty-seven of this chapter, or which can be initiated by the
12 state pursuant to other provisions of this chapter, to achieve groundwa-
13 ter restoration.
14 (f) Establishment of criteria for the prioritization of long-term
15 groundwater remediation activities to be performed by the department.
16 Such criteria shall include, but not be limited to:
17 (1) the current or reasonably anticipated future use of contaminated
18 groundwater as drinking water;
19 (2) the current or reasonably anticipated future use of a groundwater
20 aquifer into which contaminated groundwater is flowing as drinking
21 water;
22 (3) the current or reasonably anticipated future use of contaminated
23 groundwater for non-potable purposes including but not limited to recre-
24 ational uses, institutional uses and agricultural or non-agricultural
25 irrigation;
26 (4) community needs;
27 (5) feasibility of remediation; and
28 (6) protection of natural resources and minimizing the impairment of
29 the resource.
30 Notwithstanding subparagraphs one through six of this paragraph, while
31 the current use of groundwater as drinking water may be considered, the
32 absence of such use shall not exclude the need for remediation.
33 2. A public comment period of at least one hundred twenty days shall
34 be held on the initial draft strategy, and such strategy shall be the
35 subject of at least six public hearings throughout the state. Such
36 strategy shall be updated every four years based on progress made and
37 the availability of new remedial technologies, scientific information,
38 and field data. Each updated draft strategy shall be the subject of at
39 least one public hearing with a public comment period of at least sixty
40 days.
41 §§ 15-3121. Groundwater remediation program implementation.
42 1. In accordance with the groundwater remediation strategy developed
43 in section 15-3119 of this title, the department and the department of
44 health shall implement a program to achieve the long-term restoration of
45 all fresh groundwater to drinking water quality and protect groundwater
46 resources from future degradation. Such program shall include, but not
47 be limited to:
48 (a) identification of all known or reasonably ascertainable responsi-
49 ble parties defined pursuant to title twelve of article twenty-seven of
50 this chapter, who are known or believed to be responsible for the
51 contamination of groundwater.
52 (b) identification and tracking of sites or areas of contamination
53 where active groundwater remedial measures are occurring, including the
54 name of the entity undertaking such remedial measures and the associ-
55 ation of such contamination, if known, to any remedial actions taken
A. 7507 55
1 pursuant to this title, titles 12 and 13 of article twenty-seven of this
2 chapter or article twelve of the navigation law.
3 (c) the prioritization of remedial activities to be performed by the
4 department, in accordance with the criteria for prioritization estab-
5 lished in the groundwater remediation strategy.
6 (d) the performance of groundwater remedial activities by the depart-
7 ment and responsible parties, including the performance of long-term
8 groundwater remediation at a brownfield site pursuant to title twelve of
9 article twenty-seven of this chapter.
10 (e) oversight by the department of long-term groundwater remediation
11 carried out by a responsible party at a brownfield site pursuant to
12 title twelve of article twenty-seven of this chapter.
13 (f) biannual preparation of a report by the department on program
14 effectiveness, which shall be submitted to the governor, the legisla-
15 ture, and made available to the general public.
16 2. Information collected pursuant to subdivision one of this section
17 shall be incorporated into the geographic information system maintained
18 by the department to track remedial programs, pursuant to section 3-0315
19 of this chapter.
20 §§ 15-3123. Rules and regulations.
21 The commissioner shall promulgate rules and regulations necessary and
22 appropriate to carry out the purposes of this title.
23 §§ 9. Subdivision 7 of section 56-0101 of the environmental conserva-
24 tion law, as added by chapter 413 of the laws of 1996, is amended to
25 read as follows:
26 7. "Environmental restoration project" means: (a) a project to inves-
27 tigate or to remediate hazardous substances located on real property
28 held in title by a municipality, [pursuant to title five of this arti-
29 cle], and (b) priority brownfield site clean-up project by a community
30 based organization.
31 §§ 10. Section 56-0501 of the environmental conservation law, as added
32 by chapter 413 of the laws of 1996, is amended to read as follows:
33 §§ 56-0501. Allocation of moneys.
34 Of the moneys received by the state from the sale of bonds pursuant to
35 the Clean Water/Clean Air Bond Act of 1996, two hundred million dollars
36 ($200,000,000) shall be available for disbursements for environmental
37 restoration projects of which seventy-five million dollars ($75,000,000)
38 shall be available for priority brownfield clean-up projects.
39 §§ 11. Section 56-0502 of the environmental conservation law, as added
40 by chapter 413 of the laws of 1996, is amended to read as follows:
41 §§ 56-0502. Definitions.
42 For purposes of this title:
43 1. "Municipality" shall have the same meaning as provided in subdivi-
44 sion [twelve] fifteen of section 56-0101 of this article and include a
45 community based organization as defined in this section, except that
46 such term shall not refer to a municipality or community based organiza-
47 tion that generated, transported or disposed of, arranged for, or that
48 caused the generation, transportation or disposal of hazardous substance
49 located at real property proposed to be investigated or to be remediated
50 under an environmental restoration project[.];
51 2. "Brownfield site" shall have the meaning set forth in subdivision
52 five of section 27-1205 of this chapter;
53 3. "Priority brownfield site clean-up project" shall mean a project to
54 clean up a brownfield site in a manner which has been determined by the
55 department to be consistent with criteria set out in section 56-0505 of
56 this title where the main encumbrance to such redevelopment is the cost
A. 7507 56
1 of clean-up. The project shall include technical assistance grants as
2 provided in paragraph (f) of subdivision two of section 56-0503 of this
3 title;
4 4. "Minority community" shall mean any census tract or subdivision
5 thereof that includes twenty-five percent or more of any group identi-
6 fied in the definition of minority group member pursuant to subdivision
7 eight of section three hundred ten of the executive law;
8 5. "Community based organization" shall mean a not-for-profit corpo-
9 ration; incorporated under section 501(c)(3) of the internal revenue
10 code whose stated mission is promoting reuse of brownfield sites within
11 a specified geographic area in which the community based organization is
12 located; whose board of directors includes residents of the community or
13 communities in such specified geographic area; and that has a demon-
14 strated record of community involvement and/or revitalization, and a
15 demonstrated financial need for state assistance. "Community based
16 organization" shall not include any not-for-profit corporation that has
17 caused or contributed to the release or threatened release of a hazard-
18 ous substance from or onto the brownfield site, or any not-for-profit
19 corporation that generated, transported, or disposal of, or that
20 arranged for, or caused, the generation, transportation, or disposed of
21 hazardous substances from or onto the brownfield site. This definition
22 shall not apply if any member, officer or director of the not-for-profit
23 corporation is or was employed or receiving compensation from any person
24 responsible for a site under title thirteen of article twenty-seven of
25 this chapter, any responsible party under this title or under applicable
26 principles of statutory or common law liability.
27 6. "Brownfield redevelopment plan" shall have the same meaning
28 provided in subdivision two of section sixteen-n of the New York state
29 urban development corporation act.
30 §§ 12. Section 56-0503 of the environmental conservation law is amended
31 by adding two new subdivisions 3 and 4 to read as follows:
32 3. A priority brownfield clean-up project shall not be subject to the
33 repayment requirements pursuant to paragraphs (c) and (d) of subdivision
34 two of this section.
35 4. Notwithstanding subdivision one of this section, priority brown-
36 field clean-up projects shall receive one hundred percent of eligible
37 costs of remediating off-site groundwater contamination related to the
38 project.
39 §§ 13. Subdivision 1 of section 56-0503 of the environmental conserva-
40 tion law, as added by chapter 413 of the laws of 1996, is amended to
41 read as follows:
42 1. The commissioner may enter into a contract with a municipality to
43 provide state assistance to such municipality to undertake an environ-
44 mental restoration project. The amount of state assistance payment for
45 such project shall be up to an amount of seventy-five percent of the
46 eligible costs of such project; provided, however, that the amount of
47 state assistance payment for a priority brownfield clean-up shall be
48 ninety percent of the eligible costs of such project.
49 §§ 14. Paragraph (f) of subdivision 2 of section 56-0503 of the envi-
50 ronmental conservation law, as added by chapter 413 of the laws of 1996,
51 is amended to read as follows:
52 (f) An agreement by the municipality that it shall prepare and imple-
53 ment a public participation plan prior to remedial activities undertaken
54 pursuant to this section. (i) The plan for environmental restoration
55 projects which do not involve priority brownfield clean-up project sites
56 shall provide opportunities for early, inclusive participation prior to
A. 7507 57
1 the selection of a preferred course of action, facilitate communication,
2 including dialogue among the municipality, the department, and the
3 interested public, and provide timely and accessible disclosure of
4 information. At a minimum, the design of the plan shall take into
5 account the scope and scale of the proposed environmental restoration
6 project, local interest, and other relevant factors. The plan shall also
7 provide for: adequate public notice of the availability of a draft reme-
8 dial plan; a forty-five day period for submission of written comments; a
9 public hearing on such plan if substantive issues are raised by members
10 of the affected community; and technical assistance if so requested by
11 members of the affected community. Provided, however, that the require-
12 ments of this subdivision shall not apply to interim remedial measures
13 undertaken as part of an environmental restoration project to address
14 emergency site conditions. In such instance, the department or such
15 persons implementing the interim remedial measure or making the request
16 shall conduct public participation activities as the department deems
17 necessary and appropriate under such circumstances.
18 (ii) The plan for environmental restoration projects which involve the
19 clean-up of priority brownfield clean-up project sites shall be consist-
20 ent with the requirements for a community participation plan for site
21 remediation set forth in section 27-1213 of this chapter. Such plan
22 shall provide for informing the community of the availability of techni-
23 cal assistance grants.
24 (iii) The department is authorized to provide technical assistance
25 grants to any organization or group of individuals who may be affected
26 by the clean-up of priority brownfield clean-up project sites pursuant
27 to subdivision one of section 27-1215 of this chapter.
28 §§ 15. Subdivisions 1, 2 and 3 of section 56-0505 of the environmental
29 conservation law, as added by chapter 413 of the laws of 1996, are
30 amended and a new subdivision 6 is added to read as follows:
31 1. The department shall determine the eligibility of an environmental
32 restoration project for state assistance under this title based upon the
33 following criteria:
34 (a) the benefit to the environment realized by the expeditious reme-
35 diation of the property proposed to be subject to such project;
36 (b) the economic benefit to the state by the expeditious remediation
37 of the property proposed to be subject to such project;
38 (c) the potential opportunity of the property proposed to be subject
39 to such project to be used for public recreational purposes; [and]
40 (d) the opportunity for other funding sources to be available for the
41 remediation of such property, including, but not limited to, enforcement
42 actions against responsible parties (other than the municipality to
43 which state assistance was provided under this title; or a successor in
44 title, lender, or lessee who was not otherwise a responsible party prior
45 to such municipality taking title to the property), state assistance
46 payments pursuant to title thirteen of article twenty-seven of this
47 chapter, and the existence of private parties willing to remediate such
48 property using private funding sources. Highest priority shall be grant-
49 ed to projects for which other such funding sources are not available;
50 (e) whether the project and future redevelopment may cause or increase
51 a disproportionate and/or inequitable burden on those minority communi-
52 ties in the brownfield redevelopment areas that are directly or signif-
53 icantly indirectly affected by the project and future redevelopment; and
54 (f) in addition, any brownfield restoration project must have received
55 community approval, be consistent with local zoning, and any brownfield
A. 7507 58
1 redevelopment plan prepared pursuant to section sixteen-n of the New
2 York state urban development corporation act.
3 2. The department shall not enter into a contract with a municipality
4 pursuant to section 56-0503 of this title for an environmental restora-
5 tion project for any site that is:
6 (a) listed in the registry of inactive hazardous waste disposal sites
7 under section 27-1305 of this chapter and given a classification as
8 described in subparagraph one or two of paragraph b of subdivision four
9 of such section 27-1305;
10 (b) listed on the national priorities list established under authority
11 of 42 U.S.C. section 9605;
12 (c) subject to an enforcement action or permit pursuant to title seven
13 or nine of article twenty-seven of this chapter;
14 (d) subject to an order for cleanup pursuant to article twelve of the
15 navigation law or pursuant to title ten of article seventeen of this
16 chapter; or
17 (e) subject to any other on-going state or federal enforcement action.
18 3. The remediation objective of an environmental restoration project
19 shall meet the same standard for protection of public health and the
20 environment that applies to remedial actions undertaken pursuant to
21 section 27-1313 of this chapter or to brownfield site remedial programs
22 under Track 1 - unrestricted use as provided in section 27-1211 of this
23 chapter.
24 6. The department shall make every effort to expedite its review of a
25 proposed environmental restoration project. Furthermore, the department
26 shall finalize its review of a proposed remedial action workplan for an
27 approved environmental restoration project within ninety days of its
28 submission by the applicant. However, nothing herein shall be deemed a
29 de facto approval by the department.
30 §§ 16. Article 71 of the environmental conservation law is amended by
31 adding a new title 36 to read as follows:
32 TITLE 36
33 ENVIRONMENTAL EASEMENTS
34 Section 71-3601. Declaration of policy and statement of purpose.
35 71-3603. Definitions.
36 71-3605. Environmental easements; certain common law rules not
37 applicable.
38 71-3607. Contents of environmental easements.
39 71-3609. Procedures for modifying or extinguishing environmental
40 easement.
41 71-3611. Coordination with local governments.
42 71-3613. Scope of this title.
43 71-3615. Severability.
44 §§ 71-3601. Declaration of policy and statement of purpose.
45 The legislature hereby finds and declares that contaminated site reme-
46 dial programs are an important and necessary component of the state's
47 policy of restoring and revitalizing real property located throughout
48 New York state. The legislature further finds that when an environ-
49 mental remediation project leaves residual contamination at levels that
50 have been determined to be safe for a specific use, but not all uses, or
51 includes engineered structures that must be maintained or protected
52 against damage to be effective, it is necessary to provide an effective
53 and enforceable means of ensuring the performance of maintenance, moni-
54 toring or operation requirements, and of ensuring the potential
55 restriction of future uses of the land, including restrictions on drill-
56 ing for or pumping groundwater for as long as any residual contamination
A. 7507 59
1 remains hazardous. The legislature declares, therefore, that it is in
2 the public interest to create environmental easements because such ease-
3 ments are necessary for the protection of human health and the environ-
4 ment and/or to achieve the requirements for remediation established at
5 contaminated sites.
6 §§ 71-3603. Definitions.
7 When used in this title:
8 1. "Affected local government" shall mean every county and munici-
9 pality in which land subject to an environmental easement is located.
10 2. "Contaminated site remedial program" shall mean any remedial
11 program performed pursuant to title twelve or thirteen of article twen-
12 ty-seven, or title thirty-one of article fifteen of this chapter.
13 3. "Environmental easement" shall mean an easement, covenant,
14 restriction, or other interest in real property, created under and
15 subject to the provisions of this title which contains environmental use
16 restrictions and/or environmental operation, maintenance and/or monitor-
17 ing requirements; provided that no such easement shall be acquired or
18 held by the state which is subject to the provisions of article fourteen
19 of the constitution.
20 4. "Environmental use restriction" shall mean a restriction on the
21 development, management, or use of real property for the purpose of
22 protecting public health and the environment from pollution affecting
23 the real property or required by a remedial work plan or remedial action
24 plan approved by the department pursuant to title twelve or thirteen of
25 article twenty-seven, or title thirty-one of article fifteen of this
26 chapter and necessary to achieve the requirements for remediation set
27 forth in such plans.
28 5. "Environmental operation, maintenance, and/or monitoring require-
29 ments" means one or more requirements to perform certain acts contained
30 in a contaminated site operation, maintenance, and monitoring plan
31 approved by the department and necessary to protect public health and
32 the environment or achieve the requirements for remediation set forth in
33 such plans.
34 §§ 71-3605. Environmental easements; certain common law rules not appli-
35 cable.
36 1. An environmental easement may be created or conveyed only by an
37 instrument which complies with the requirements of section 5-703 of the
38 general obligations law and which is subscribed by the grantee. It shall
39 be of perpetual duration unless otherwise provided in such instrument,
40 shall run with the land, and shall bind the owner of the land, the
41 owner's successors or assigns through acquisition of title, any lessees,
42 and any person using the land.
43 2. An environmental easement shall be modified or extinguished only
44 pursuant to the provisions of section 71-3609 of this title. Any such
45 modification or extinguishment shall be set forth in an instrument which
46 complies with the requirements of section 5-703 of the general obli-
47 gations law or in an instrument filed in a manner prescribed for record-
48 ing a conveyance of real property pursuant to section two hundred nine-
49 ty-one of the real property law.
50 3. An environmental easement shall be held only by the state, except
51 that the state shall not be authorized or empowered to acquire or hold
52 any environmental easement which is subject to the provisions of article
53 fourteen of the constitution.
54 4. An environmental easement shall be duly recorded and indexed as
55 such in the office of the recording officer for the county or counties
56 where the land is situate in the manner prescribed by article nine of
A. 7507 60
1 the real property law. The easement shall describe the property encum-
2 bered by the easement by adequate legal description or by reference to a
3 recorded map showing its boundaries and bearing the seal and signature
4 of a licensed land surveyor or, if the easement encumbers the entire
5 property described in a deed of record, the easement may incorporate by
6 reference the description in such deed, otherwise it shall refer to the
7 liber and page of the deed or deeds of the record owner or owners of the
8 real property burdened by the environmental easement. The property deed
9 and all subsequent instruments of conveyance relating to the property
10 encumbered by the easement shall reference, by book and page number, the
11 environmental easement. Such deed and instruments shall also specify
12 that the eligible property is subject to the restrictions and/or
13 requirements contained in such easement. An instrument for the purpose
14 of creating, conveying, modifying, or terminating an environmental ease-
15 ment shall not be effective unless recorded.
16 5. The department shall include a copy of each environmental easement
17 in the database created pursuant to sections 27-1221 and 27-1317 of
18 this chapter and make such database easily searchable by an affected
19 local government for the purpose of determining whether an environmental
20 easement has been recorded for a site pursuant to section 71-3611 of
21 this title.
22 6. An environmental easement may be enforced in law or equity by its
23 grantor, by the state, or any affected local government as defined in
24 section 71-3603 of this title. Such easement is enforceable against the
25 owner of the burdened property, any lessees, and any person using the
26 land. Enforcement shall not be defeated because of any subsequent
27 adverse possession, laches, estoppel, or waiver. No general law of the
28 state which operates to defeat the enforcement of any interest in real
29 property shall operate to defeat the enforcement of any environmental
30 easement unless such general law expressly states the intent to defeat
31 the enforcement of such easement or provides for the exercise of the
32 power of eminent domain. It is not a defense in any action to enforce an
33 environmental easement that:
34 (a) it is not appurtenant to an interest in real property;
35 (b) it is not of a character that has been recognized traditionally at
36 common law;
37 (c) it imposes a negative burden;
38 (d) it imposes affirmative obligations upon the owner of any interest
39 in the burdened property;
40 (e) the benefit does not touch or concern real property;
41 (f) there is no privity of estate or of contract; or
42 (g) it imposes an unreasonable restraint on alienation.
43 7. Agents, employees, or other representatives of the state may enter
44 and inspect the property burdened by an environmental easement in a
45 reasonable manner and at reasonable times to assure compliance with the
46 restriction.
47 8. The department may promulgate regulations establishing standards
48 for environmental easements.
49 9. Written notice shall be provided to the director of the budget and
50 notice shall be published in the state register and the environmental
51 notice bulletin at least thirty days prior to the acquisition, or entry
52 into a contract for the acquisition, on behalf of the state of any envi-
53 ronmental easement.
54 §§ 71-3607. Contents of environmental easements.
55 An environmental easement shall include, but not be limited to,
56 provisions regarding:
A. 7507 61
1 1. a complete description of any environmental use restrictions or
2 operation, maintenance and/or monitoring requirements to which the real
3 property is subject;
4 2. an agreement to incorporate, either in full or by reference, the
5 environmental easement in any leases, licenses, or other instruments
6 granting a right to use the property that may be affected by such ease-
7 ment;
8 3. a requirement that the owner of the property, or any lessee or
9 licensee or other grantee of a right to use the property, notify the
10 department prior to submitting any application to a local government for
11 a building permit or change of use as defined in section 27-1205 of this
12 chapter;
13 4. inclusion of the following statement in the property deed and all
14 subsequent instruments of conveyance relating to the subject property in
15 fifteen-point bold-faced type: "This property is subject to an environ-
16 mental easement held by the New York state department of environmental
17 conservation pursuant to title 36 of article 71 of the environmental
18 conservation law."
19 §§ 71-3609. Procedures for modifying or extinguishing environmental ease-
20 ment.
21 An environmental easement held by the state may only be modified or
22 extinguished:
23 1. as provided in the instrument creating the easement; or
24 2. in a proceeding pursuant to section nineteen hundred fifty-one of
25 the real property actions and proceedings law; or
26 3. upon the exercise of the power of eminent domain.
27 §§ 71-3611. Coordination with local governments.
28 1. Whenever the department is granted an environmental easement, it
29 shall provide each affected local government with a copy of such ease-
30 ment and shall also provide a copy of any documents modifying or termi-
31 nating such environmental easement.
32 2. Whenever an affected local government receives an application for a
33 building permit or any other application affecting land use or develop-
34 ment of land that is subject to an environmental easement and that may
35 relate to or impact such easement, the affected local government shall
36 notify the department and refer such application to the department. The
37 department shall evaluate whether the application is consistent with the
38 environmental easement and shall notify the affected local government of
39 its determination in a timely fashion, considering the time frame for
40 the local government's review of the application. The affected local
41 government shall not approve the application until it receives approval
42 from the department.
43 §§ 71-3613. Scope of this title.
44 This title shall not affect any interests or rights in real property
45 which are not environmental easements, and shall not affect the rights
46 of owners to convey any interests in real property which they could now
47 create under existing law without reference to the terms of this title.
48 Nothing in this title shall diminish the powers granted by any other law
49 to acquire interests or rights in real property by purchase, gift,
50 eminent domain, or otherwise and to use the same for public purposes.
51 Nothing in this title shall be construed to alter the authority other-
52 wise available to the state to acquire environmental easements for the
53 purposes of section 71-3601 of this title by eminent domain.
54 §§ 71-3615. Severability.
55 The provisions of this title shall be severable, and if any clause,
56 sentence, paragraph, subdivision, or part of this title shall be
A. 7507 62
1 adjudged by any court of competent jurisdiction to be invalid, such
2 judgment shall not affect, impair or invalidate the remainder thereof,
3 but shall be confined in its operation to the clause, sentence, para-
4 graph, subdivision, or part thereof directly involved in the controversy
5 in which such judgment shall have been rendered; provided that if an
6 environmental easement created pursuant to this title is determined by
7 any court of competent jurisdiction to be land or water or an interest
8 in land or water subject to the provisions of article fourteen of the
9 constitution, then the authority of the state to hold or acquire such
10 easement and the conveyance to the state of such easement shall be void
11 ab initio.
12 §§ 17. Subdivisions 2 and 11 of section 97-b of the state finance law,
13 subdivision 2 as amended by chapter 413 of the laws of 1996 and subdivi-
14 sion 11 as added by chapter 512 of the laws of 1986, are amended to read
15 as follows:
16 2. Such fund shall consist of all of the following:
17 (a) moneys appropriated for transfer to the fund's site investigation
18 and construction account; (b) all fines and other sums accumulated in
19 the fund prior to April first, nineteen hundred eighty-eight pursuant to
20 section 71-2725 of the environmental conservation law for deposit in the
21 fund's site investigation and construction account; (c) all moneys
22 collected or received by the department of taxation and finance pursuant
23 to section 27-0923 of the environmental conservation law for deposit in
24 the fund's industry fee transfer account; (d) all moneys paid into the
25 fund pursuant to section 72-0201 of the environmental conservation law
26 which shall be deposited in the fund's industry fee transfer account;
27 (e) all moneys paid into the fund pursuant to section one hundred eight-
28 y-six of the navigation law which shall be deposited in the fund's
29 industry fee transfer account; (f) all moneys paid into the fund by
30 municipalities for repayment of landfill closure loans made pursuant to
31 former title five of article fifty-two of the environmental conservation
32 law for deposit in the fund's site investigation and construction
33 account; (g) all monies recovered under section 56-0507 of the environ-
34 mental conservation law into the fund's environmental restoration
35 project account; [and] (h) moneys recovered pursuant to subdivision six
36 of this section which shall be deposited in the fund's site investi-
37 gation and construction account; (i) all fees paid into the fund pursu-
38 ant to section 72-0403 of the environmental conservation law which shall
39 be deposited in the fund's industry fee transfer account; and (j) other
40 moneys credited or transferred thereto from any other fund or source for
41 deposit in the fund's site investigation and construction account.
42 11. The industry fee transfer account, established pursuant to subdi-
43 vision one of this section, is to provide for an equal sharing between
44 the state and industry of the costs of debt service for bonds and notes
45 issued to finance hazardous waste remedial work other than those costs
46 attributable to or payable by responsible parties, a municipality or the
47 federal government. Such sharing shall be provided fifty percent from
48 moneys of the general fund and fifty percent from fees and surcharges
49 designated for this purpose pursuant to subdivisions two and fourteen of
50 this section. When debt service is paid on bonds and notes authorized
51 by the environmental quality bond act of 1986 or section twelve hundred
52 eighty-five-q of the public authorities law, and sold to provide moneys
53 for hazardous waste site remediation, the comptroller shall transfer
54 from the industry fee transfer account to the general fund an amount
55 equal to fifty percent of such debt service payment.
A. 7507 63
1 §§ 18. Paragraph b of subdivision 1 of section 71-2725 of the environ-
2 mental conservation law, as amended by chapter 60 of the laws of 1993,
3 is amended to read as follows:
4 b. All penalties and fines collected pursuant to sections 71-2705,
5 71-2721 and 71-2723 of this title shall be paid [into the general fund
6 to the credit of the state purposes account] to the credit of the indus-
7 try fee transfer account of the hazardous waste remedial fund estab-
8 lished by subdivision one of section ninety-seven-b of the state finance
9 law.
10 §§ 19. Paragraph b of subdivision 1, subdivision 9 and paragraph a of
11 subdivision 11 of section 72-0201 of the environmental conservation law,
12 paragraph b of subdivision 1 and subdivision 9 as added by chapter 38 of
13 the laws of 1985 and paragraph a of subdivision 11 as amended by section
14 24 of part A of chapter 58 of the laws of 1998, are amended and subdivi-
15 sion 1 is amended by adding a new paragraph e to read as follows:
16 b. Notwithstanding any general or special law to the contrary, one-
17 half of all monies collected by the department pursuant to section
18 72-0402 and section 72-0502 of this article shall be deposited in the
19 industry fee transfer account of the hazardous waste remedial fund,
20 created pursuant to section ninety-seven-b of the state finance law.
21 e. Notwithstanding any general or special law to the contrary, all
22 monies collected by the department pursuant to section 72-0403 of this
23 article shall be deposited in the industry fee transfer account of the
24 hazardous waste remedial fund established by subdivision one of section
25 ninety-seven-b of the state finance law.
26 9. a. In the event a penalty or interest is collected pursuant to
27 subdivision five or six of this section for fees due under section
28 72-0402, or section 72-0502 of this article, one-half of the penalty or
29 interest shall be deposited by the department in the industry fee trans-
30 fer account of the hazardous waste remedial fund.
31 b. In the event a penalty or interest is collected pursuant to subdi-
32 vision five or six of this section for fees due under section 72-0403 of
33 this article, such penalty or interest shall be deposited in the indus-
34 try fee transfer account of the hazardous waste remedial fund estab-
35 lished by subdivision one of section ninety-seven-b of the state finance
36 law.
37 a. All fees collected pursuant to this article [except fees collected
38 pursuant to paragraphs b, c and d of subdivision one of this section]
39 shall be paid into the environmental conservation special revenue fund
40 to the credit of the environmental regulatory account, unless herein
41 provided otherwise.
42 §§ 20. The environmental conservation law is amended by adding a new
43 section 72-0403 to read as follows:
44 §§ 72-0403. Hazardous waste program surcharges.
45 All generators shall submit annually to the department a fee in the
46 amount to be determined as follows:
47 1. Four thousand dollars for generators of equal to or greater than
48 fifteen tons per year and less than or equal to twenty-five tons per
49 year of hazardous waste;
50 2. Nine thousand dollars for generators of greater than twenty-five
51 tons per year and less than or equal to fifty tons per year of hazardous
52 waste;
53 3. Fourteen thousand dollars for generators of greater than fifty tons
54 per year and less than or equal to seventy-five tons per year of hazard-
55 ous waste;
A. 7507 64
1 4. Nineteen thousand dollars for generators of greater than seventy-
2 five tons per year and less than or equal to one hundred tons per year
3 of hazardous waste;
4 5. Twenty-four thousand dollars for generators of greater than one
5 hundred tons per year and less than or equal to five hundred tons per
6 year of hazardous waste;
7 6. Eighty thousand dollars for generators of greater than five hundred
8 tons per year and less than or equal to one thousand tons per year of
9 hazardous waste;
10 7. Eighty-five thousand dollars for generators of greater than one
11 thousand tons per year and less than or equal to two thousand tons per
12 year of hazardous waste;
13 8. One hundred ten thousand dollars for generators of greater than two
14 thousand tons per year and less than or equal to three thousand tons per
15 year of hazardous waste;
16 9. One hundred thirty-five thousand dollars for generators of greater
17 than three thousand tons per year and less than or equal to five thou-
18 sand tons per year of hazardous waste;
19 10. One hundred sixty thousand dollars for generators of greater than
20 five thousand tons per year and less than or equal to ten thousand tons
21 per year of hazardous waste;
22 11. Three hundred sixty thousand dollars for generators of greater
23 than ten thousand tons per year of hazardous waste;
24 12. Six thousand dollars for generators of equal to or greater than
25 fifteen tons per year of hazardous wastewater, payable in addition to
26 the fees for hazardous wastes, other than wastewater, as required by
27 this subdivision.
28 §§ 21. The public authorities law is amended by adding a new section
29 1285-q to read as follows:
30 §§ 1285-q. Financing of hazardous waste site remediation projects. In
31 order to effectuate the purposes of this title, the corporation shall
32 have the following additional special powers:
33 1. The corporation is hereby authorized to issue bonds or notes in the
34 amount of any appropriation, or reappropriation thereof, enacted in the
35 state fiscal year ending March thirty-first, two thousand three and each
36 state fiscal year thereafter, excluding bonds issued to fund one or more
37 debt service reserve funds, to pay costs of issuance of such bonds, and
38 bonds or notes issued to refund or otherwise repay such bonds or notes
39 previously issued, for payment of the state's share of the costs of the
40 remediation of hazardous waste sites, in the same manner as set forth in
41 titles one and three of article fifty-two of the environmental conserva-
42 tion law and pursuant to capital appropriations made to the department
43 of environmental conservation.
44 2. Such bonds and notes of the corporation shall not be a debt of the
45 state, and the state shall not be liable thereon, nor shall they be
46 payable out of any funds other than those appropriated by the state to
47 the corporation for debt service and related expenses pursuant to any
48 service contract executed pursuant to subdivision three of this section
49 and such bonds and notes shall contain on the face thereof a statement
50 to such effect.
51 3. Notwithstanding any provisions of law to the contrary, in order to
52 assist the corporation in undertaking the administration and financing
53 of the projects authorized pursuant to subdivision one of this section,
54 the director of the budget is hereby authorized to enter into one or
55 more service contracts with the corporation, none of which shall exceed
56 more than thirty years in duration, upon such terms and conditions as
A. 7507 65
1 the director of the budget and the corporation agree, so as to annually
2 provide to the corporation, in the aggregate, a sum not to exceed the
3 annual debt service payments and related expenses required for the bonds
4 and notes issued pursuant to this section. Any service contract entered
5 into pursuant to this subdivision shall provide that the obligation of
6 the state to pay the amount therein provided shall not constitute a debt
7 of the state within the meaning of any constitutional or statutory
8 provision and shall be deemed executory only to the extent of monies
9 available and that no liability shall be incurred by the state beyond
10 the monies available for such purposes, subject to annual appropriation
11 by the legislature. Any such contract or any payments made or to be made
12 thereunder may be assigned and pledged by the corporation as security
13 for its bonds and notes, as authorized by this section.
14 4. Notwithstanding any other law, rule or regulation to the contrary,
15 the comptroller is hereby authorized and directed to deposit to the
16 credit of the capital projects fund, reimbursement from proceeds of
17 notes and bonds issued by the corporation pursuant to this section for
18 capital appropriations to the department of environmental conservation
19 for the state's share of the costs of the remediation of hazardous waste
20 sites, in the same manner as set forth in titles one and three of arti-
21 cle fifty-two of the environmental conservation law.
22 §§ 22. Section 316-b of the real property law is amended by adding a
23 new subdivision 3 to read as follows:
24 3. Each recording officer shall record and index each declaration of
25 restriction upon qualified real property pursuant to a remedial work
26 plan requirement of the brownfield site cleanup agreement under section
27 27-1215 of the environmental conservation law.
28 §§ 23. Section 1120 of the real property tax law is amended by adding a
29 new subdivision 3 to read as follows:
30 3. Notwithstanding any general, special or local law or ordinance to
31 the contrary:
32 (a) upon the commencement of a proceeding to foreclose a tax lien, the
33 taxing district bringing the proceeding or any taxing district other
34 than the one foreclosing the tax lien, having any right, title, or
35 interest in, or lien upon, any parcel described in the petition of fore-
36 closure may upon twenty days notice to all parties having any right,
37 title, or interest in, or lien upon such parcel, move, at a special term
38 in the court in which the foreclosure proceeding was brought, for an
39 order granting such taxing district the temporary incidents of ownership
40 of such parcel for the sole purpose of entering the parcel and conduct-
41 ing an environmental investigation upon such parcel.
42 (b) unless prior to the return date of the motion brought pursuant to
43 this section the parcel has been redeemed by a party having the right of
44 redemption, the court shall enter an order granting such relief to such
45 taxing district, or, if more than one taxing district applies for such
46 right, to the taxing district which the court determines has the great-
47 est public interest, but, where possible and proper, preferences for
48 such relief should be accorded first to cities and villages, second to
49 towns, and third to counties. Such order shall be granted upon such
50 terms and conditions as the court shall deem just and proper to permit
51 the environmental investigation to go on unhindered as well as to
52 protect the interests of all other parties having a right, title, or
53 interest in such parcel. Such order shall act as a stay to the foreclo-
54 sure action on such parcel until the environmental investigation has
55 been completed and the final investigation report filed with the court
56 pursuant to paragraph (d) of this subdivision or such other time as the
A. 7507 66
1 court may deem proper, and particularly upon a finding by the court that
2 the investigation has not been carried out in an expeditious manner.
3 (c) such temporary incidents of ownership by such taxing district
4 shall also qualify it as being the owner of such property for the
5 purposes of obtaining funding from the state of New York for such envi-
6 ronmental investigation under article fifty-six of the environmental
7 conservation law or for such funding from any source pursuant to any
8 other state, federal, or local law, but such incidents of ownership
9 shall not be sufficient to qualify it as the owner of such property for
10 the purposes of holding it wholly or partially liable for any damages,
11 past, present, or future from any release of any hazardous material,
12 substance, or contaminant into the air, ground, or water, unless such
13 release was caused by such taxing district.
14 (d) within thirty days of the completion of the environmental investi-
15 gation and the receipt by the taxing jurisdiction of the final report of
16 such investigation, such taxing jurisdiction shall file such report with
17 the court on notice to the court and all other parties of record, and
18 the stay of the foreclosure shall be lifted (unless lifted earlier by a
19 prior court order), and all incidents of temporary ownership of the
20 taxing jurisdiction that was awarded such taxing district, except any
21 right to receive funding for the environmental investigation, shall
22 cease to exist, and nothing in this subdivision shall preclude the
23 taxing jurisdiction that conducted the environmental investigation or
24 the taxing jurisdiction that commenced the foreclosure action, if it is
25 a different taxing jurisdiction than the taxing jurisdiction which
26 conducted the investigation, from withdrawing the parcel from foreclo-
27 sure pursuant to section eleven hundred thirty-eight of this title.
28 (e) all costs associated with any environmental investigation
29 conducted pursuant to the authority of this section shall be added to
30 the taxes owed to, and the tax lien of, the taxing district that under-
31 took the environmental investigation pursuant to this section.
32 §§ 24. Section 1 of chapter 174 of the laws of 1968, constituting the
33 New York state urban development corporation act, is amended by adding a
34 new section 4-a to read as follows:
35 §§ 4-a. Preferences. In each program administered by the corporation
36 pursuant to an appropriation of funds, and consistent with any statute
37 governing such program, the corporation shall give preference to the
38 award of such funds to real properties designated within a brownfield
39 redevelopment plan pursuant to section sixteen-n of this act. Such
40 preference shall include, but not be limited to, active marketing of
41 such program specifically to urban areas that have such potential brown-
42 field sites and potential businesses interested in acquiring real prop-
43 erties in such areas, providing assistance to municipalities, community
44 based organizations and businesses under such program, and giving prior-
45 ity consideration to such municipalities, community based organizations
46 and businesses in the award of financial assistance. The corporation
47 shall include in the annual program report required pursuant to subdivi-
48 sion (b) of section thirty of this act, a description of activities and
49 a listing of proposals provided with financial assistance pursuant to
50 this section.
51 §§ 25. Section 1 of chapter 174 of the laws of 1968, constituting the
52 New York state urban development corporation act, is amended by adding a
53 new section 16-n to read as follows:
54 §§ 16-n. Brownfield site assessment, acquisition, remediation and rede-
55 velopment assistance program. 1. The corporation shall establish a
A. 7507 67
1 brownfield redevelopment assistance program which shall include the
2 following:
3 (a) municipal government and community based organization brownfield
4 pre-planning assistance and designation of land re-use opportunity areas
5 brownfield redevelopment planning assistance grants pursuant to subdivi-
6 sion two of this section.
7 (b) designation of land re-use opportunity areas.
8 (c) municipal government and community based organization brownfield
9 site acquisition grants pursuant to subdivision three of this section.
10 (d) brownfield site investigation, remediation, redevelopment project
11 grants pursuant to subdivision four of this section.
12 2. Municipal government and community based organization brownfield
13 pre-planning assistance and designation of land re-use opportunity areas
14 brownfield redevelopment planning assistance grants. (a) Grants awarded
15 under this subdivision shall be awarded on a competitive basis, in
16 response to requests for proposals, and through direct applications
17 accepted at other times at the discretion of the corporation, distrib-
18 uted to community based organizations or municipal government acting in
19 cooperation with community based organizations. Requests for proposals
20 under this subdivision shall set forth such information requirements and
21 notice of evaluation criteria as the corporation deems necessary,
22 consistent with this subdivision and subdivisions seven and eight of
23 this section.
24 (b) Within the limits of appropriations made available, the corpo-
25 ration is authorized to provide grants to community based organizations
26 or municipal governments and community based organizations acting in
27 cooperation for brownfield pre-planning assistance including feasibil-
28 ity, planning or marketing studies, surveys, designs or reports to
29 assess the economic development or redevelopment potential of a specific
30 qualified brownfield site or sites and to develop a brownfield redevel-
31 opment plan based on such studies.
32 (c) Assistance provided pursuant to this subdivision shall be provided
33 pursuant to a contract between the grant recipient and the corporation.
34 In addition to such other terms and conditions that the corporation may
35 deem to be appropriate, such contract shall include a provision provid-
36 ing that if any federal payments, responsible party payments, and/or
37 payments received from the disposition of the qualified brownfield site
38 become available to the grant recipient, the amount of such payments
39 attributable to expenses paid by the grant under this subdivision shall
40 be paid by the grant recipient to the corporation. The corporation
41 shall fund additional grants under this subdivision from payments
42 received by the corporation pursuant to this paragraph.
43 (d) Brownfield pre-planning assistance shall include the assembly and
44 development of information, including brownfield site identification;
45 current and anticipated uses of brownfield sites; and existing data
46 concerning the environmental condition and ownership of brownfield sites
47 in order to support the reuse and/or redevelopment of these sites. Each
48 application for pre-planning assistance shall include the following:
49 (1) a statement of the rationale or relationship between the proposed
50 pre-planning funding and the criteria set forth in this section for the
51 evaluation and ranking of pre-planning grant applications;
52 (2) the processes by which local participation in the development of
53 the application has been sought and any letters of support from members
54 of the community;
55 (3) the pre-planning process to be carried out under the state assist-
56 ance including, but not limited to, the goals of and budget for the
A. 7507 68
1 pre-planning effort, the work plan and timeline for the attainment of
2 these goals, and the intended process for community participation in the
3 pre-planning process in conformance with the requirements of subdivision
4 seven of this section;
5 (4) the consistency of the pre-planning process with local, state and
6 federal laws, regulations, policies and programs;
7 (5) the manner and extent to which public or governmental agencies
8 with jurisdiction over issues that will be addressed in the data gather-
9 ing process will be involved in this process;
10 (6) other planning and development initiatives proposed or in progress
11 in the area that is the subject of the application;
12 (7) for each community based organization which is an applicant or a
13 co-applicant, a description of the relationship between the community
14 based organization and the area that is the subject of the application,
15 its financial and institutional accountability, its experience in
16 conducting and completing planning initiatives and in working with the
17 local government associated; and
18 (8) no application for pre-planning assistance shall be considered
19 unless the applicant demonstrates that it has, to the maximum extent
20 feasible, solicited and considered the views of residents of the
21 proposed area, the views of state and local officials elected to repre-
22 sent such residents and the local private organizations representing
23 such residents, and conformed with the requirements of subdivision seven
24 of this section.
25 (e) Within the limits of appropriations made available, the corpo-
26 ration is authorized to and shall consider proposals submitted by commu-
27 nity based organizations or by municipal governments acting in cooper-
28 ation with community based organizations for the designation of land
29 re-use opportunity areas. The corporation is authorized to and shall
30 provide, on a competitive basis, grants for brownfield redevelopment
31 planning assistance to each applicant whose application for land re-use
32 opportunity area designation has been accepted.
33 (1) An application for designation of a land re-use opportunity area
34 shall include an indication of support from two or more owners of brown-
35 field sites in the proposed land re-use opportunity area and at least
36 two of such owners shall be owners of different brownfield sites. All
37 residents and property owners in an area proposed for designation as a
38 land re-use opportunity area shall receive notice of the proposed desig-
39 nation in a manner consistent with the requirements of subdivision seven
40 of this section.
41 (2) No application for designation of an area as a land re-use oppor-
42 tunity area shall be considered unless the applicant demonstrates that
43 it has, to the maximum extent feasible, solicited and considered the
44 views of residents of the proposed area, the views of state and local
45 officials elected to represent such residents and the local private
46 organizations representing such residents, and conformed with the
47 requirements of subdivision seven of this section.
48 (f) Each application for designation of a land re-use opportunity area
49 shall, to the extent such information is available at the time such
50 application is made, include:
51 (1) the proposed boarders of the land re-use opportunity area; the
52 location of each known or suspected brownfield site in the proposed land
53 re-use opportunity area;
54 (2) the identification of strategic sites within the proposed land
55 re-use opportunity area;
A. 7507 69
1 (3) the type of potential developments anticipated for sites within
2 the land re-use opportunity area proposed by either the current or the
3 prospective owners of such sites;
4 (4) local legislative or regulatory action which may be required to
5 implement a plan for the proposed land re-use opportunity area;
6 (5) priorities for public and private investment in infrastructure,
7 open space, economic development, housing, or community facilities in
8 the proposed land re-use opportunity area;
9 (6) mapping of current and anticipated uses of the properties and
10 groundwater in the area;
11 (7) detailed assessments of individual brownfield sites including,
12 where the consent of the site owner has been obtained, the conduct of
13 on-site assessments;
14 (8) known data about the environmental conditions of properties in the
15 proposed area;
16 (9) ownership of the sites in the proposed area;
17 (10) preliminary descriptions of possible remediation strategies, land
18 re-use opportunities, necessary infrastructure improvements and other
19 public or private measures needed to stimulate investment, promote revi-
20 talization, and enhance community health and environmental conditions;
21 (11) the processes by which local participation in the development of
22 the application has been sought;
23 (12) the planning process to be carried out under the state assistance
24 including, but not limited to, the goals of the planning effort, the
25 budget, work plan and timeline for the attainment of these goals, and
26 the intended process for public participation in the planning process in
27 conformance with the requirements of subdivision seven of this section;
28 (13) the consistency of the planning process with local, state and
29 federal laws, regulations, policies and programs;
30 (14) the manner and extent to which public or governmental agencies
31 with jurisdiction over issues that will be addressed in the planning
32 process will be involved in the planning;
33 (15) other planning and development initiatives proposed or in
34 progress in the proposed land re-use opportunity area;
35 (16) the goals and objectives, both short term and long term, for the
36 economic revitalization of the proposed LRO area;
37 (17) the financial commitments the applicant will make to the LRO area
38 for activities, including, but not limited to, marketing of the area for
39 business development, human resource services for LRO area residents and
40 businesses, and services for small and minority and women-owned busi-
41 nesses;
42 (18) the publicly controlled and other developable lands and buildings
43 within the proposed LRO area which are or could be made available for
44 industrial and commercial development;
45 (19) to the extent information described in subparagraphs one through
46 eighteen of this paragraph is not available at the time the application
47 is made, the date when such information will be supplied to the commis-
48 sioner of environmental conservation and made available to the public;
49 and
50 (20) a proposed work plan and budget for the preparation of the land
51 re-use opportunity area redevelopment plan.
52 (g) When considering a proposed land re-use opportunity area, the
53 commissioner of environmental conservation shall prioritize and provide
54 funding to proposals for areas having the following:
55 (1) areas for which the application is a partnered application by a
56 community based organization and a municipality;
A. 7507 70
1 (2) areas with concentrations of brownfield sites;
2 (3) areas in communities with health issues potentially linked to the
3 proximity of brownfield sites;
4 (4) areas showing indicators of economic distress including low resi-
5 dent incomes, high unemployment, high commercial vacancy rates,
6 depressed property values;
7 (5) the presence of brownfield sites presenting strategic opportu-
8 nities for catalyzing economic development, community revitalization or
9 the siting of public amenities; and
10 (6) the quality of the submittals provided in response to subpara-
11 graphs one through twenty of paragraph (f) of this subdivision.
12 (h) If, after an evaluation of the application to designate a land
13 re-use opportunity area, the corporation determines that the application
14 should be granted, notice shall be sent to the applicant of this deci-
15 sion.
16 (i) The availability and amount of a grant of state assistance to the
17 applicant for the preparation of the land re-use opportunity area rede-
18 velopment plan shall be sent concurrently with the LRO area designation.
19 Such notice shall indicate the time within which the redevelopment plan
20 must be completed. The grant amount shall be based on the work plan and
21 budget submitted as a part of the application.
22 (j) When the brownfield redevelopment plan is completed, it shall be
23 forwarded by the applicant to the corporation who shall either certify
24 the redevelopment plan as in accordance with the decision to designate
25 the land re-use opportunity area or decline to certify it with recommen-
26 dations to the applicant of the manner and nature in which the redevel-
27 opment plan should be amended.
28 (k) Once a land re-use opportunity area is designated and the redevel-
29 opment plan for such area is submitted to and certified by the corpo-
30 ration, all of the properties within the land re-use opportunity area
31 are eligible for the grants provided in subdivisions three and four of
32 this section.
33 (l) No provision of a land re-use opportunity area redevelopment plan
34 certified pursuant to this section shall be binding on properties within
35 such areas or on any of the participants in the designation and planning
36 process unless such provision has been lawfully adopted by local ordi-
37 nance or regulations.
38 (m) Any amendment to the boundaries of a designated land re-use oppor-
39 tunity area or to the certified redevelopment plan for such area shall
40 be proposed, reviewed, accepted, approved, or certified by the corpo-
41 ration in the same manner and using the same criteria as are used for an
42 application to designate a land reuse opportunity area or for the
43 certification of the plan for such area.
44 3. Municipal government and community based organization brownfield
45 site acquisition grants.
46 (a) Within the limits of appropriations made available, the corpo-
47 ration is hereby authorized to provide grants to community based organ-
48 izations or municipal governments and community based organizations
49 acting in cooperation for the acquisition of a controlling interest in
50 one or more individual qualified brownfield sites including but not
51 limited to expenditures for personal services, non-personal services and
52 contractual expenses associated therewith.
53 (b) Assistance provided pursuant to this subdivision shall be provided
54 pursuant to a contract between the grant recipient and the corporation.
55 In addition to such other terms and conditions that the corporation may
56 deem to be appropriate, such contract shall include a provision provid-
A. 7507 71
1 ing that if any federal payments, responsible party payments, and/or
2 payments received from the disposition of the qualified brownfield site
3 become available to the grant recipient, the amount of such payments
4 attributable to expenses paid by the grant under this subdivision shall
5 be paid by the grant recipient to the corporation. The corporation
6 shall fund additional grants under this subdivision from payments
7 received by the corporation pursuant to this paragraph.
8 4. Brownfield site investigation, remediation and redevelopment
9 project grants.
10 (a) Within the limits of appropriations made available, the corpo-
11 ration is hereby authorized under this subdivision to provide grants to
12 community based organizations or municipal governments and community
13 based organizations acting in cooperation for the investigation, remedi-
14 ation and economic redevelopment of one or more individual qualified
15 brownfield sites including but not limited to expenditures for personal
16 services, non-personal services and contractual expenses associated
17 with:
18 (i) the assessment and investigation of one or more individual quali-
19 fied brownfield sites pursuant to a brownfield site cleanup agreement as
20 provided in section 27-1207 of the environmental conservation law;
21 (ii) the development of a brownfield site remedial program as provided
22 in section 27-1211 of the environmental conservation law;
23 (iii) implementation of the brownfield site remedial program as
24 provided in section 27-1211 of the environmental conservation law; and
25 (iv) to implement economic development or redevelopment plans for a
26 brownfield site or sites which has received a certification of
27 completion pursuant to section 27-1217 of the environmental conservation
28 law.
29 (b) Assistance provided pursuant to this subdivision shall be provided
30 pursuant to a contract between the grant recipient and the corporation.
31 In addition to such other terms and conditions that the corporation may
32 deem to be appropriate, such contract shall include a provision provid-
33 ing that if any federal payments, responsible party payments, and/or
34 payments received from the disposition of the qualified brownfield site
35 become available to the grant recipient, the amount of such payments
36 attributable to expenses paid by the grant under this subdivision shall
37 be paid by the grant recipient to the corporation. The corporation
38 shall fund additional grants under this subdivision from payments
39 received by the corporation pursuant to this paragraph.
40 5. The corporation is authorized to provide technical assistance
41 grants as provided in section 27-1215 of the environmental conservation
42 law.
43 6. For the purposes of this section, community based organization,
44 municipality and brownfield site shall have the same meaning as provided
45 in section 27-1205 of the environmental conservation law.
46 7. Community participation.
47 (a) The goal of community participation in the pre-planning or land
48 re-use opportunity area planning process shall be to provide an opportu-
49 nity for the residents of the community to meaningfully participate in
50 the pre-planning or planning decision making process, including any long
51 term changes in real property use. The design of community partic-
52 ipation activities in the pre-planning or planning process, including
53 the level of community involvement and the tools utilized, shall take
54 into account the scope and scale of such proposed process, local inter-
55 est and history, and other relevant factors. While retaining flexibili-
A. 7507 72
1 ty, community participation activities shall embody the following prin-
2 ciples of meaningful community participation:
3 (1) opportunities for community involvement should be provided as
4 early as possible in the decision making process prior to the selection
5 of a preferred course of action by community based organizations and/or
6 municipalities.
7 (2) participation activities should be as reflective of the diversity
8 of interests and perspectives found within the community as possible,
9 combining opportunities for broad participation, such as public meet-
10 ings, with opportunities for more on-going involvement, such as advisory
11 committees. Participation in forums or advisory committees should be
12 open to any persons wishing to participate. All meetings of smaller
13 working groups or committees should be open to the public, and all
14 formal minutes, correspondence, and work product of such bodies should
15 be made available to the public.
16 (3) participation activities should provide all participants with the
17 opportunity to have their views heard and considered.
18 (4) participation activities should provide opportunities for two-way
19 dialogue and the free exchange of viewpoints and information.
20 (5) full, timely, and accessible disclosure and sharing of information
21 shall be provided, including the provision of technical data and the
22 assumptions upon which analyses are based.
23 (b) All applications for pre-planning assistance or applications for
24 designation of a land re-use opportunity area shall demonstrate that the
25 following minimum community participation activities have been or will
26 be performed by the applicant:
27 (1) identification of the interested public and preparation of a
28 project contact list;
29 (2) identification of major issues of public concern;
30 (3) identification of public and government agency information needs;
31 (4) provision of access to the draft and final application for pre-
32 planning assistance and land re-use opportunity area designation the
33 draft land re-use opportunity area redevelopment plan, and supporting
34 documents in a manner convenient to the public;
35 (5) public notice and newspaper notice of (i) the intent of the muni-
36 cipality or community based organization to undertake a pre-planning
37 process or prepare a land re-use opportunity area redevelopment plan,
38 and (ii) the availability of such application or draft plan;
39 (6) a comment period of at least thirty days on a draft land re-use
40 opportunity area redevelopment plan;
41 (7) a public meeting on a land re-use opportunity area redevelopment
42 draft plan; and
43 (8) a summary and response to public comments submitted on a draft
44 land re-use opportunity area redevelopment plan.
45 8. Applications for grants pursuant to this section will be evaluated
46 and ranked by the corporation using the following criteria. The corpo-
47 ration shall make a decision regarding whether or not to provide grants
48 under this section no later than ninety days following submittal of an
49 application. Preference will be granted to applications seeking assist-
50 ance for brownfield sites which:
51 (a) are located in highly distressed communities;
52 (b) areas with concentrations of brownfield sites;
53 (c) areas in communities with health issues potentially linked to the
54 proximity of brownfield sites;
A. 7507 73
1 (d) areas showing indicators of economic distress including low resi-
2 dent incomes, high unemployment, high commercial vacancy rates,
3 depressed property values; and
4 (e) brownfield sites presenting strategic opportunities for catalyzing
5 economic development, community revitalization or the siting of public
6 amenities.
7 Funding decisions must ensure geographic distribution of grantees to
8 ensure that areas most severely affected by brownfield sites receive
9 priority.
10 9. For purposes of this section:
11 (a) "Project contact list" shall mean a list of persons, government
12 agencies, groups, or organizations who may be affected by or interested
13 in pre-planning activities or the preparation of a land re-use opportu-
14 nity area redevelopment plan, including all elected officials of munici-
15 palities with jurisdiction over the area which is the subject of such
16 activity or plan; any known brownfield site owners, operators, and site
17 residents and adjacent property owners, operators, and adjacent resi-
18 dents within such area; any known local neighborhood associations, local
19 environmental or community development organizations, citizen, civic, or
20 business organizations with an interest in local environmental, land
21 use, or economic development issues; and any other persons, groups, or
22 organizations who may be affected by or interested in such activity,
23 plan or site.
24 (b) "Newspaper notice" shall mean the placement of a prominently
25 located, paid newspaper advertisement in the community bulletin section
26 or similar local section of a newspaper of general circulation in the
27 vicinity of the area which is the subject of pre-planning or planning
28 activities. Such notice shall be in English and in any other language
29 spoken by significant numbers of people within the community.
30 (c) "Public notice" shall mean mailing a notice or fact sheet to all
31 municipalities with jurisdiction over the area which is the subject of
32 pre-planning or planning activities; any known brownfield site owners,
33 operators, and residents and adjacent property owners, operators, and
34 residents; and all persons on the project contact list.
35 §§ 26. The public authorities law is amended by adding a new section
36 1285-r to read as follows:
37 §§ 1285-r. Financing of state remedial programs. In order to effectuate
38 the purposes of this title, the corporation shall have the following
39 additional special powers:
40 1. The corporation is hereby authorized to issue bonds or notes in the
41 amount of any appropriation, or reappropriation thereof, enacted in the
42 state fiscal year ending March thirty-first, two thousand three and each
43 state fiscal year thereafter, excluding bonds issued to fund one or more
44 debt service reserve funds, to pay costs of issuance of such bonds, and
45 bonds or notes issued to refund or otherwise repay such bonds or notes
46 previously issued, for implementation of state remedial programs under-
47 taken pursuant to paragraph (b) of subdivision nine of section 27-1211
48 and title thirty-one of article fifteen of the environmental conserva-
49 tion law and pursuant to capital appropriations made to the department
50 of environmental conservation.
51 2. Such bonds and notes of the corporation shall not be a debt of the
52 state, and the state shall not be liable thereon, nor shall they be
53 payable out of any funds other than those appropriated by the state to
54 the corporation for debt service and related expenses pursuant to any
55 service contract executed pursuant to subdivision three of this section
A. 7507 74
1 and such bonds and notes shall contain on the face thereof a statement
2 to such effect.
3 3. Notwithstanding any provisions of law to the contrary, in order to
4 assist the corporation in undertaking the administration and financing
5 of the projects authorized pursuant to subdivision one of this section,
6 the director of the budget is hereby authorized to enter into one or
7 more service contracts with the corporation, none of which shall exceed
8 more than thirty years in duration, upon such terms and conditions as
9 the director of the budget and the corporation agree, so as to annually
10 provide to the corporation, in the aggregate, a sum not to exceed the
11 annual debt service payments and related expenses required for the bonds
12 and notes issued pursuant to this section. Any service contract entered
13 into pursuant to this subdivision shall provide that the obligation of
14 the state to pay the amount therein provided shall not constitute a debt
15 of the state within the meaning of any constitutional or statutory
16 provision and shall be deemed executory only to the extent of monies
17 available and that no liability shall be incurred by the state beyond
18 the monies available for such purposes, subject to annual appropriation
19 by the legislature. Any such contract or any payments made or to be made
20 thereunder may be assigned and pledged by the corporation as security
21 for its bonds and notes, as authorized by this section.
22 4. Notwithstanding any other law, rule or regulation to the contrary,
23 the comptroller is hereby authorized and directed to deposit to the
24 credit of the capital projects fund, reimbursement from proceeds of
25 notes and bonds issued by the corporation pursuant to this section for
26 capital appropriations to the department of environmental conservation
27 for implementation of groundwater protection programs undertaken pursu-
28 ant to paragraph (b) of subdivision nine of section 27-1211 and title
29 thirty-one of article fifteen of the environmental conservation law.
30 §§ 27. Subdivision 14 of section 1801 of the public authorities law, as
31 amended by chapter 788 of the laws of 1983, is amended to read as
32 follows:
33 14. "Project" shall mean (i) the construction of a new industrial or
34 manufacturing plant, a new research and development building or other
35 new eligible business facility, (ii) the acquisition, rehabilitation or
36 improvement of a former or existing industrial or manufacturing plant,
37 of a former or existing building to be used for research and develop-
38 ment, of a former or existing other eligible business facility, (iii)
39 the construction, acquisition, rehabilitation or improvement of
40 pollution control facilities, (iv) the purchase of machinery and equip-
41 ment, for which financial assistance from the authority is sought, [or]
42 (v) assistance to employees under an employee ownership assistance loan
43 agreement made pursuant to subtitle six of this title, or (vi) acquisi-
44 tion, remediation, and redevelopment of a brownfield site as defined in
45 subdivision five of section 27-1205 of the environmental conservation
46 law, for which a certificate of completion has been obtained pursuant to
47 section 27-1217 of the environmental conservation law; provided, howev-
48 er, that any such plant, building, facility or machinery and equipment
49 therefore shall not be primarily used in making retail sales of goods or
50 services to customers who personally visit such facilities to obtain
51 such goods or services, or used primarily as a hotel, apartment house or
52 other place of business which furnishes dwelling space or accommodations
53 to either residents or transients.
54 §§ 28. Subdivision 3 of section 1112 of the private housing finance law
55 is amended by adding a new paragraph (g) to read as follows:
A. 7507 75
1 (g) be located on a brownfield site that has received a certificate of
2 completion pursuant to section 27-1217 of the environmental conservation
3 law.
4 §§ 29. Subdivision 8 of section 1102 of the private housing finance
5 law, as amended by chapter 121 of the laws of 1988, is amended to read
6 as follows:
7 8. Within each of the three categories of projects (cooperative or
8 condominium, rental, or homesteading), preference in the awarding of
9 contracts shall be given to economically feasible projects which contain
10 a substantial number of persons of low income whose income does not
11 exceed fifty percent of the median income for the metropolitan statis-
12 tical area in which the project is located, or if the project is located
13 outside such an area, to projects which contain a substantial number of
14 persons of low income whose incomes do not exceed fifty percent of the
15 median income for the county in which the project is located, additional
16 preference shall be given to economically feasible projects located on a
17 brownfield site that has received a certificate of completion pursuant
18 to section 27-1217 of the environmental conservation law.
19 §§ 30. Section 14 of the public housing law is amended by adding a new
20 subdivision 6 to read as follows:
21 6. Wherever the commissioner has the discretion to determine contract
22 awards through a competitive application process, the commissioner shall
23 give preference to applications that propose feasible projects to be
24 developed and will be located on a brownfield site that has received a
25 certificate of completion pursuant to section 27-1217 of the environ-
26 mental conservation law.
27 §§ 31. The general municipal law is amended by adding a new section
28 970-r to read as follows:
29 §§ 970-r. Brownfield business enterprise designation. 1. The New York
30 state environmental facilities corporation established pursuant to
31 section one thousand two hundred eighty-two of the public authorities
32 law shall designate brownfield business enterprises in accordance with
33 this section.
34 2. An applicant, as such term is defined in section 27-1205 of the
35 environmental conservation law, other than a responsible party, as such
36 term is defined in section 27-1205 of the environmental conservation
37 law, after execution of a brownfield site cleanup agreement pursuant to
38 section 27-1207 of the environmental conservation law, may, prior to
39 completion of the brownfield remediation program of the applicant, apply
40 to the New York state environmental facilities corporation for desig-
41 nation as a "brownfield business enterprise" on or after January first,
42 two thousand four and before January first, two thousand nine. Provided,
43 however, only applicants whose brownfield sites are located within a
44 state empire zone designated pursuant to article eighteen-B of this
45 chapter, within a zone equivalent area designated pursuant to either
46 subdivision (bb) or (cc) of section nine hundred fifty-nine of this
47 chapter, or within a census tract which, as of the two thousand census,
48 has a poverty rate at least two times the poverty rate of the county in
49 which the census tract is located may so apply.
50 3. The New York state environmental facilities corporation, in consul-
51 tation with the department of environmental conservation, shall desig-
52 nate up to one thousand such applicants, excluding any designations
53 subsequently revoked pursuant to this section, as "brownfield business
54 enterprises".
55 4. In making such designations, the New York state environmental
56 facilities corporation shall consider the following criteria:
A. 7507 76
1 (a) the concentration of abandoned or underutilized real property in
2 the area of the applicant's brownfield site and the extent to which real
3 or suspected environmental contamination has significantly inhibited
4 redevelopment;
5 (b) health issues within such area which are potentially linked to the
6 presence of such properties; and
7 (c) indicators of economic distress within such area, including low
8 resident incomes, high unemployment, high commercial vacancy rates or
9 depressed property values.
10 5. If, pursuant to section 27-1207 of the environmental conservation
11 law, a designated applicant withdraws from the brownfield site cleanup
12 agreement or such agreement is terminated by the department of environ-
13 mental conservation, such designation shall be revoked by the New York
14 state environmental facilities corporation.
15 6. For the purposes of this section "brownfield site" shall have the
16 same meaning as provided in section 27-1205 of the environmental conser-
17 vation law.
18 7. Any applicant who receives a certificate of completion pursuant to
19 section 27-1217 of the environmental conservation law shall be eligible
20 for tax benefits pursuant to section twenty-one of the tax law.
21 §§ 32. Section 959 of the general municipal law is amended by adding a
22 new subdivision (cc) to read as follows:
23 (cc) Designate as zone equivalent areas those census tracts and block
24 numbering areas which, as of the two thousand census, satisfy the crite-
25 ria set forth in subparagraphs (A) and (B) of paragraph (i) of subdivi-
26 sion (a) of section nine hundred fifty-eight of this article. Such
27 designation shall be made, and a list of all such zone equivalent areas
28 shall be promulgated, not later than June thirtieth, two thousand four.
29 §§ 33. Subdivision 1 of section 16-d of section 1 of chapter 174 of the
30 laws of 1968, constituting the New York state urban development corpo-
31 ration act, as added by chapter 169 of the laws of 1994, paragraph (e)
32 of subdivision 1 as further amended pursuant to section 15 of part GG of
33 chapter 63 of the laws of 2000, is amended to read as follows:
34 (1) Definitions. For the purposes of this section:
35 (a) "Brownfield site" shall have the same meaning as provided in
36 section 27-1205 of the environmental conservation law.
37 [(a)] (b) "Business improvement district" shall mean a special assess-
38 ment district established pursuant to article nineteen-A of the general
39 municipal law.
40 [(b)] (c) "Business district" or "central business district" shall
41 mean the central district of a municipality or neighborhood area tradi-
42 tionally used for commercial purposes.
43 [(c)] (d) "Commercial strip" shall mean a predominantly commercial
44 area traditionally used for commercial purposes which may not be the
45 primary business district and which is one of several commercial
46 districts in the municipality in which it is located.
47 [(d)] (e) "Economically distressed areas" shall mean areas as deter-
48 mined by the corporation meeting criteria indicative of economic
49 distress, including unemployment rate; rate of employment change;
50 percentages and numbers of low-income persons; per capita income and per
51 capita real property wealth; such other indicators of distress as the
52 corporation shall determine. Economically distressed areas may include
53 cities, municipalities, block numbering areas, and census tracts.
54 [(e)] (f) "Highly distressed" shall mean suffering from severe econom-
55 ic distress as determined by the corporation using criteria similar to
56 those set forth in subdivision (a) of section nine hundred fifty-eight
A. 7507 77
1 of article eighteen-B of the general municipal law for determining
2 eligibility for empire zone status.
3 [(f)] (g) "Not-for-profit corporation" shall mean a corporation organ-
4 ized under the provisions of the not-for-profit corporation law.
5 §§ 34. Subdivision 4 of section 16-d of section 1 of chapter 174 of the
6 laws of 1968, constituting the New York state urban development corpo-
7 ration act, as added by chapter 169 of the laws of 1994, is amended to
8 read as follows:
9 (4) Preference. (a) Preference will be given to projects which are
10 located in highly distressed communities, and for which other public or
11 private funding sources are not available.
12 (b) Additional preference shall be given to projects which are located
13 on brownfield sites that have received a certificate of completion
14 pursuant to section 27-1217 of the environmental conservation law and
15 the applicant for grants under this section is a not-for-profit corpo-
16 ration as defined in section 27-1205 of the environmental conservation
17 law.
18 §§ 35. Subdivision 2 of section 16-m of section 1 of chapter 174 of the
19 laws of 1968, constituting the New York state urban development corpo-
20 ration act is amended by adding a new paragraph (e) to read as follows:
21 (e) preference shall be given to projects which are located on brown-
22 field sites that have received a certificate of completion pursuant to
23 section 27-1217 of the environmental conservation law and the applicant
24 for assistance under this section is a not-for-profit corporation as
25 defined in section 27-1205 of the environmental conservation law.
26 "Brownfield site" shall have the same meaning as provided in section
27 27-1205 of the environmental conservation law.
28 §§ 36. The tax law is amended by adding a new section 21 to read as
29 follows:
30 §§ 21. Brownfields remediation program. (a) Qualified brownfield busi-
31 ness enterprise (QBBE). A business enterprise which is designated as a
32 "brownfield business enterprise" pursuant to section nine hundred seven-
33 ty-r of the general municipal law and has received a certificate of
34 completion pursuant to section 27-1217 of the environmental conservation
35 law shall be a "qualified brownfield business enterprise" for the
36 fifteen taxable years next following the taxable year in which such
37 certificate was received. The brownfield site for which such certificate
38 was issued shall be a "qualified brownfield".
39 (b) Tax benefits. A qualified brownfield business enterprise shall be
40 eligible for all tax benefits available under this chapter in regard to
41 an empire zone, including, but not limited to, all tax benefits for
42 which a qualified empire zone enterprise is eligible, except empire zone
43 capital tax credits provided pursuant to subdivision twenty of section
44 two hundred ten, subsection (d) of section fourteen hundred fifty-six,
45 or subsection (1) of section six hundred six of this chapter.
46 (c) Application. For purposes of applying this section, wherever the
47 terms "empire zone" and "qualified empire zone enterprise" appear in
48 this chapter, such terms shall be read as "qualified brownfield" and as
49 "qualified brownfield business enterprise" respectively and such other
50 modifications may be made by the commissioner as are necessary to adapt
51 provisions relating to "empire zones" and "qualified empire zone enter-
52 prises" to qualified brownfield business enterprises. Further, the
53 employment test set forth in subdivision (b) of section fourteen of
54 this article shall be disregarded and the employment increase factors
55 set forth in subdivision (d) of section fifteen and subdivision (d) of
A. 7507 78
1 section sixteen of this article shall be replaced by the employment
2 factor set forth in subdivision (d) of this section.
3 (d) QBBE employment factor. The "QBBE employment factor" is the
4 amount, not to exceed 1.0, of full-time employees, whether employed by
5 the qualified brownfield business enterprise or not, whose primary place
6 of employment is within a qualified brownfield divided by one hundred,
7 provided however that the minimum number of full-time employees within
8 such qualified brownfield shall be twenty-five. In the event that a
9 qualified brownfield business enterprise has fewer than twenty-five
10 full-time employees whose principal place of employment is within a
11 qualified brownfield, then the QBBE employment factor shall be zero.
12 (e) Successors in ownership. A successor in ownership of the quali-
13 fied brownfield shall be a qualified brownfield business enterprise,
14 except that the benefit period shall be lessened by the benefit period
15 in months of the prior owner or owners. Any partial month shall be
16 counted as one month.
17 (f) Credit recapture. In order to receive tax benefits under this
18 section, the qualified brownfield business enterprise must remain in
19 compliance with its certificate of completion. If such certificate is
20 rendered void pursuant to subdivision five of section 27-1217 of the
21 environmental conservation law, any credits allowed to such enterprise
22 pursuant to this section shall be recaptured in full.
23 (g) QEZE option. If the qualified brownfield is located in whole or in
24 part in an area designated as an empire zone pursuant to article eigh-
25 teen-B of the general municipal law and the taxpayer meets the quali-
26 fications to be both a qualified empire zone enterprise and a qualified
27 brownfield business enterprise, the taxpayer shall be required in the
28 first taxable year in which benefits under either status are available
29 to make an irrevocable election to be either a qualified empire zone
30 enterprise or to be a qualified brownfield business enterprise. Such
31 election shall be made with the filing of the return or report required
32 of the taxpayer under this chapter.
33 §§ 37. This act shall take effect immediately and shall be deemed to
34 have been in full force and effect on and after April 1, 2003; provided
35 that the amendments to section 16-m of section 1 of chapter 174 of the
36 laws of 1968, constituting the New York state urban development corpo-
37 ration act, made by section thirty-five of this act shall not affect the
38 expiration of such section and shall be deemed to expire therewith;
39 provided, further, that section 21 of the tax law as added by section
40 thirty-six of this act shall apply to taxable years beginning on or
41 after January 1, 2005.
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