Marcellino Bill (S. 2935)

Introduced March 11, 2003, passed Senate and delivered to Assembly,
March 19, 2003

S. 2935 2 1 TITLE 14 2 BROWNFIELDS PROGRAM 3 Section 27-1401. Definitions. 4 27-1403. Eligibility. 5 27-1405. Process. 6 27-1407. Work plans. 7 27-1409. Agreements. 8 27-1413. Final report and certification of completion. 9 27-1414. Payment of reasonable program oversight costs. 10 27-1415. No action site determination. 11 27-1417. Dispute resolution or withdrawal. 12 27-1419. Liability provisions. 13 27-1421. Reopeners and change of use. 14 27-1423. Postponement of hazardous waste site registration and 15 navigation law cleanup or removal. 16 27-1425. State brownfields advisory board. 17 27-1427. Brownfields technical advisory panel. 18 27-1429. Powers and duties of the commissioner. 19 27-1431. Citizen participation/public notification. 20 § 27-1401. Definitions. 21 When used in this title: 22 1. "Brownfield" or "brownfield site" means any real property, redevel- 23 opment or reuse of which may be complicated by the presence or potential 24 presence of a hazardous waste, pollutant, or contaminant. 25 2. "Brownfield program" means the provisions of this title. 26 3. "Contaminant" or "contamination" means hazardous waste or petrole- 27 um, as those terms are defined in section 27-1301 of this article and 28 subdivision fifteen of section one hundred seventy-two of the navigation 29 law, or any combination thereof. 30 4. "Contributory responsible party" means: 31 a. The owner and operator of a brownfield site who at the time of 32 release of any contaminants, owned or operated the brownfield site or 33 any portion thereof at which such contaminants were released; provided, 34 however, that mere passive migration of contaminants to or from a site 35 during a person's ownership or operation of the site shall not consti- 36 tute a "release" for the purpose of determining such person's status as 37 a contributory responsible party; and 38 b. Any person, who by contract, agreement or otherwise arranged for 39 disposal or treatment, or arranged with a transporter for transport for 40 disposal or treatment, of contaminants, owned or possessed by such 41 person, by any other party or entity, at any contaminated site owned or 42 operated by another party or entity and containing such contaminants; 43 and any person who accepts or accepted any hazardous waste, for trans- 44 port to a contaminated site selected by such person, from which there is 45 a release, or a threatened release of contaminants. 46 5. "Federal act" means the federal comprehensive environmental 47 response, compensation and liability act of 1980, 42 U.S.C. 9601 to 42 48 U.S.C. 9675. 49 6. "Municipality" means a local public authority or public benefit 50 corporation, a county, city, town, village, school district, supervisory 51 district, district corporation, improvement district within a county, 52 city, town or village or Indian nation or tribe recognized by the United 53 States with a reservation wholly or partly within the boundaries of the 54 state, or any combination thereof.

S. 2935 3 1 7. "Non-contributory responsible party" means any person who currently 2 owns or operates a brownfield site, and is not a contributory responsi- 3 ble party in regard to that site. 4 8. "Non-responsible party" means any person who is not a responsible 5 party as of the date of submission by such person of an application 6 under this title. The purchase or acquisition of the contaminated site 7 that is the subject of the application, after the date of such applica- 8 tion does not have the effect of changing such person's status to that 9 of a non-contributory responsible party so long as the person is comply- 10 ing in good faith with the provisions of this title. At a site contam- 11 inated predominantly by petroleum which would be subject to cleanup and 12 removal requirements under article twelve of the navigation law, a 13 person who or which would otherwise be a non-contributory responsible 14 party under that title shall, for purposes of this title, be a non-res- 15 ponsible party. 16 9. "Person" means an individual, trust, estate, joint venture, firm, 17 joint stock company, limited liability company, corporation, not-for- 18 profit corporation, community based organization, limited liability 19 partnership, partnership, association, state, municipality, commission, 20 political subdivision of a state, public corporation or any interstate 21 body. 22 10. "Pervasively contaminated soil" means soil that has contaminants 23 that are widespread such as soil that is contaminated as a result of 24 historic fill or airborne contaminants, unless such contaminants are 25 associated with specific on site activities that generated or resulted 26 in the disposal of the contamination. 27 11. "Release" means any spilling, leaking, pumping, pouring, emitting, 28 emptying, discharging, injecting, escaping, leaching, dumping or dispos- 29 ing into the environment, including the abandonment or discarding of 30 barrels, containers and other closed receptacles containing any contam- 31 inant. 32 12. "Remediation", "remedy" or "remedial action" means actions taken 33 to eliminate, remove, abate, control, isolate or monitor health and/or 34 environmental hazards or potential hazards in connection with contam- 35 inated sites or to treat or dispose of contaminated materials from such 36 sites including, but not limited to, grading, contouring, trenching, 37 grouting, capping, excavating, transporting, incinerating, chemically 38 treating, biologically treating, constructing leachate collection and 39 treatment systems, and any other engineering control, institutional 40 control or remedial measure approved by the department. 41 13. "Responsible party" means either a contributory responsible party 42 or a non-contributory responsible party as those terms are defined in 43 this title. 44 14. "Volunteer" means a person who has filed an application to partic- 45 ipate in the brownfield program under this title. 46 § 27-1403. Eligibility. 47 Any brownfield site is eligible for participation in the brownfield 48 program, including eligible response sites defined in section 101(41) of 49 the federal act, unless the brownfield site is: 50 1. as of the effective date of this section, listed in the registry of 51 hazardous waste sites under section 27-1305 of this article and given a 52 classification as described in subparagraph one of paragraph b of subdi- 53 vision four of such section; 54 2. listed on the national priorities list or is subject to a federal 55 order;

S. 2935 4 1 3. a treatment, storage or disposal facility subject to a permit, 2 other than an interim status permit, describing closure requirements 3 pursuant to title nine of this article or a treatment, storage and 4 disposal facility subject to an order pursuant to title nine of this 5 article requiring specific remedial measures, unless corrective action 6 has not been approved by the department with respect to such site; or 7 4. listed in the registry of hazardous waste sites under section 8 27-1305 of this article and given a classification as described in 9 subparagraph two of paragraph b of subdivision four of such section 10 where such site is subject to an order requiring specific remedial meas- 11 ures, unless a record of decision has not been completed and approved by 12 the department with respect to such site, provided, however, that if the 13 applicant is a responsible party with respect to such site, the applica- 14 tion pursuant to this article with respect to such site shall be made 15 within six months of the department's notice, issued pursuant to subdi- 16 vision one of section 27-1305 of this article; and 17 5. after the effective date of this section, sites contaminated by 18 hazardous waste as a result of new release events requiring emergency 19 response and causing a significant threat to human health and the envi- 20 ronment. 21 § 27-1405. Process. 22 1. A volunteer shall submit an application to the department to 23 participate in the brownfield program on a form prescribed by the 24 commissioner. The form shall identify general contact information for 25 the volunteer, the responsible party status of the volunteer, a physical 26 description of the brownfield site, a statement that the brownfield site 27 does not fall into one of the eligibility exceptions, the anticipated 28 use of such site, and the selected Track pursuant to section 27-1429 of 29 this title. The volunteer shall submit with the application a prelimi- 30 nary environmental assessment concerning the brownfield site that shall 31 include, but not be limited to: 32 a. the results of a Phase I Environmental Site assessment performed 33 pursuant to the procedures of the American Society for Testing and Mate- 34 rials, including the document known as 'Standard E1527_97', entitled 35 "Standard Practice for Environmental Site Assessment: Phase I Environ- 36 mental Site Assessment Process"; 37 b. the results of an inquiry by an environmental professional; 38 c. interviews with past and present owners, operators, and occupants 39 of the facility for the purpose of gathering information regarding the 40 potential for contamination at the facility; 41 d. reviews of historical sources, such as chain of title documents, 42 aerial photographs, building department records, and land use records, 43 to determine previous uses and occupancies of the brownfield site since 44 the property was first developed; 45 e. searches for recorded environmental cleanup liens against the 46 brownfield site that are filed under federal, state, or local law; 47 f. reviews of federal, state, and local government records, waste 48 disposal records, underground storage tank records, and hazardous waste 49 handling, generation, treatment, disposal and spill records, concerning 50 contamination at or near the brownfield site; 51 g. visual inspections of the brownfield site and of adjoining proper- 52 ties; 53 h. commonly known or reasonably ascertainable information about the 54 brownfield site;

S. 2935 5 1 i. the degree of obviousness of the presence or likely presence of 2 contamination at the property, and the ability to detect the contam- 3 ination by appropriate investigation; and 4 j. if the volunteer chooses, a work plan for a site investigation or a 5 final report describing the results of an investigation that meets the 6 requirements of this article and a work plan for a site remediation. 7 2. A non-refundable application fee of five thousand dollars shall be 8 paid by the volunteer at the time the application is submitted, and 9 shall be deposited in the hazardous waste remedial fund. 10 3. The commissioner is authorized, in his or her discretion, to waive 11 the payment of the application fee set forth in this section and/or the 12 payment of program oversight costs, if any, associated with such site to 13 the extent the end use of the contaminated site is: 14 a. anticipated to be operated by a municipality; 15 b. to provide a public benefit or public facility, such as a park; or 16 c. for the benefit of a not-for-profit organization. 17 4. The volunteer shall certify that all information contained in the 18 application, accompanying preliminary environmental assessment, and the 19 proposed work plan or investigation report, if submitted, is true to the 20 best of the volunteer's knowledge. 21 5. Within twenty days from receipt of an application, the commissioner 22 shall inform the volunteer in writing that the application is complete 23 or that the application is incomplete and specifying the missing neces- 24 sary information as required in this section. Within sixty days of 25 receipt of a notice that an application is incomplete, the volunteer 26 shall submit any information needed to complete the application. Within 27 twenty days from receipt of the information necessary to complete the 28 application, the commissioner shall inform the volunteer in writing that 29 the application is complete. In the event a final investigation report 30 describing the results of an investigation that meets the requirements 31 of this article was submitted with the application, the commissioner 32 shall further inform the volunteer in writing that the investigation is 33 complete or that the investigation is incomplete and specify the missing 34 necessary information required pursuant to this article to complete the 35 investigation and the final investigation report. 36 6. Upon application completion, the volunteer and the department shall 37 commence development of the work plan. 38 § 27-1407. Work plans. 39 1. In the event an investigation meeting the requirements of this 40 article has not yet been performed, the volunteer shall prepare an 41 investigation work plan within ninety days of receipt of a notice that 42 the application is complete. In the event an investigation meeting the 43 requirements of this article has been performed, the results of which 44 were presented in a final investigation report, the volunteer shall 45 prepare a remediation work plan within ninety days of receipt of a 46 notice that the application and final investigation reports are 47 complete. In the event both an investigation and remediation meeting the 48 requirements of this article were performed but additional operation, 49 monitoring or maintenance work is required, the volunteer shall prepare 50 an operations, monitoring and maintenance work plan. 51 2. A work plan for the investigation of the brownfield site shall 52 provide for the investigation and characterization of the nature and 53 extent of the contamination within the legal boundaries of the real 54 property constituting the brownfield site, provided, however, a contrib- 55 utory responsible party shall also be required to investigate and char- 56 acterize the nature and extent of contamination emanating from such

S. 2935 6 1 brownfield site. A volunteer who is not a contributory responsible 2 party, or a person that is liable solely as a result of ownership or 3 operation of the affected site subsequent to the disposal of hazardous 4 waste or the discharge of petroleum, shall perform an exposure assess- 5 ment consisting of an evaluation of the pathways by which a receptor 6 could be exposed to such contamination, in order to determine the risk 7 to public health and the environment from any contamination emanating 8 from such real property. 9 3. In the event the conclusions of the final investigation report 10 indicate that remediation is necessary to meet the requirements of this 11 article and provide overall protection of human health and the environ- 12 ment, the volunteer shall submit a work plan for the remediation of the 13 brownfield site which shall: 14 a. provide for the remediation of such contamination within the legal 15 boundaries of the real property constituting the brownfield site, 16 provided, however, that a contributory responsible party shall also 17 provide for the remediation of contamination emanating from such site; 18 b. indicate which Track pursuant to section 27-1429 of this title has 19 been proposed and if proposing remedial Track 2 pursuant to paragraph b 20 of subdivision two of section 27-1429 of this title, an appropriate 21 remedial strategy or strategies, developed pursuant to this article, 22 designed to address the specific contamination discovered; 23 c. include, at a minimum, a description, and if readily available, 24 documentation of any investigation and/or remediation work previously 25 performed at the brownfield site, a description of the activities to be 26 undertaken to meet the applicable requirements of this article, a sched- 27 ule for performance of those activities, a description of quality assur- 28 ance, sampling and analysis methodology, and a health and safety plan 29 for the implementation of the work plan; and 30 d. demonstrate compliance with applicable standards developed in 31 accordance with this article and how the selected remedies will address 32 the following balancing criteria: 33 i. short-term impacts and effectiveness, 34 ii. long-term effectiveness and permanence, 35 iii. reduction in toxicity, mobility and/or volume of contamination, 36 iv. implementability, 37 v. cost effectiveness, and 38 vi. community acceptance. 39 4. In the case of off-site contamination, a volunteer who is a non- 40 contributory responsible party shall include in the work plan the iden- 41 tity of any known contributory responsible party and the known circum- 42 stances of such contributory responsible party's relationship with the 43 contamination. 44 5. A volunteer who is a contributory responsible party may, to the 45 extent that contamination emanating from the site through the groundwa- 46 ter is combining with significant contamination from other sources, seek 47 to resolve responsibility for the remediation of off-site groundwater by 48 contributing to an ongoing or planned effort to remediate the contam- 49 ination. 50 6. Work plans need not be consistent with the national contingency 51 plan, but shall be consistent with the requirements of this article and 52 shall ensure the protection of public health and the environment, 53 including the protection of all current and future users of the site and 54 adjacent properties. 55 7. Upon the department's written approval of a work plan, such work 56 plan shall be incorporated into and become an enforceable part of the

S. 2935 7 1 agreement executed pursuant to this article and shall be implemented in 2 accordance with the schedule contained therein. 3 8. The department and department of health shall concurrently review 4 the work plan and supporting documentation, and, within sixty days of 5 receipt, either approve the work plan or, based on specific grounds, 6 reject the work plan as incomplete for failure to meet the requirements 7 of this article and the regulations promulgated pursuant to this arti- 8 cle, or to comport with generally accepted technical and scientific 9 principles. At any time during the sixty day time period the department 10 may request additional or corrected information from the volunteer. If 11 the department issues a determination of incompleteness, the volunteer 12 shall have thirty days to respond. Unless otherwise directed by the 13 department, public comments received from any interested party shall 14 also be addressed in the revised submittal. Thereafter, the department 15 shall have thirty days to approve or reject the volunteer's revision. If 16 a second determination of incompleteness is issued, the volunteer may 17 withdraw from the program and each party may exercise available remedies 18 at law or elect to invoke the dispute resolution provision pursuant to 19 this article. 20 9. In parallel with the time frames associated with negotiation of the 21 work plan, the volunteer and the department shall develop an agreement 22 pursuant to this title. 23 § 27-1409. Agreements. 24 1. Upon issuance of a determination of completeness by the department 25 approving an investigation or remediation work plan, the volunteer and 26 the department shall enter into an agreement which shall include, but 27 not be limited to, the following provisions: 28 a. A requirement that the volunteer pay reasonable oversight costs and 29 future monitoring costs of institutional or engineering controls in 30 accordance with this title unless waived pursuant to this article; 31 b. The terms of the liability release to be granted pursuant to this 32 article; 33 c. A dispute resolution provision to cover disagreements relating to 34 the preparation, evaluation, analysis, oversight and implementation of 35 the work plan or agreement pursuant to this article; 36 d. A termination provision authorizing the department to terminate the 37 agreement at any time if the volunteer fails to materially comply with 38 such agreement's terms and conditions, and a termination provision 39 authorizing the volunteer to withdraw from the brownfield program if the 40 parties cannot agree and allowing each party to exercise available reme- 41 dies at law or elect to invoke the dispute resolution provision pursuant 42 to this article; 43 e. A waiver by the volunteer, effective upon the issuance of a certif- 44 icate of completion pursuant to this article, of any right such volun- 45 teer has or may have to make a claim pursuant to article twelve of the 46 navigation law with respect to the site, and a release of the New York 47 state environmental protection and spill compensation fund from any and 48 all legal or equitable claims or causes of action that such volunteer 49 may have as a result of entering into or fulfilling the remediation 50 agreement with respect to such site; and 51 f. Such other provisions necessary for the effective and efficient 52 implementation of this title. 53 2. Upon execution of an agreement, the volunteer shall implement the 54 work plan in accordance with the agreement. No permit shall be required 55 under any provision of this chapter for any activity identified in and 56 implemented pursuant to the work plan and agreement, provided that the

S. 2935 8 1 activity is conducted in a manner which satisfies all substantive tech- 2 nical requirements applicable to like activity conducted, pursuant to a 3 permit. 4 3. Upon execution of an agreement pursuant to this title, a notice of 5 such agreement which includes the liability release shall be recorded 6 and indexed as a declaration of covenant in the office of the recording 7 officer for the county or counties where the subject site is located in 8 the manner prescribed by article nine of the real property law, includ- 9 ing the name of the record owner and the tax map parcel number or the 10 section block and lot number of such site and any affected off-site 11 property, within thirty days of the receipt of such executed agreement, 12 if the volunteer is the site owner, or within thirty days of acquiring 13 title to the site, if the volunteer is a purchaser of such site. 14 § 27-1413. Final report and certification of completion. 15 1. Once work plan activities have been completed, the volunteer shall 16 submit to the department a final report, certified by a licensed profes- 17 sional engineer, which shall describe: 18 a. the results of the investigation, including a description of the 19 work performed. In the event the results of an investigation do not 20 indicate the need to conduct any further investigation or remediation at 21 the contaminated site, a certificate of completion shall be issued. In 22 the event no further investigation or remediation is required but an 23 institutional control is required, the liability release provided for in 24 this title shall become effective upon the recording of any required 25 institutional control pursuant to this title; 26 b. remediation work plan activities performed, including but not 27 limited to, how remediation requirements were met pursuant to this 28 title, the selected remedy implemented, and what, if any, engineering or 29 institutional controls will be employed as part of the remedy; 30 c. quality assurance/quality control measures undertaken by the volun- 31 teer to ensure that the nature and extent of contaminants at the contam- 32 inated site were properly characterized and to confirm the achievement 33 of the applicable remediation requirements; and 34 d. a complete description of any use restrictions or institutional 35 controls, engineering controls, or operation, maintenance or monitoring 36 requirements that will be employed to assure future protection of public 37 health and the environment. 38 2. The department shall have forty-five days to review the final 39 report and reject or approve it. 40 a. The department shall approve the final report if it meets the 41 requirements of this article and issue a written certificate of 42 completion. 43 b. The department may reject the final report if it demonstrates in a 44 written notice specific grounds for rejection. The volunteer shall then 45 have thirty days from the receipt of the rejection notice, or a longer 46 period if approved by the department, to address the deficiencies, or 47 complete the work and submit a revised report as required, or elect to 48 invoke the dispute resolution provision pursuant to section 27-1417 of 49 this title. 50 3. The certification of completion shall include: 51 a. The liability release granted pursuant to this title and shall 52 specify that if all terms of the agreement are met and no further action 53 at the site is required with respect to any residual contamination 54 remaining on or off site; 55 b. For any site at which engineering controls are to be employed, a 56 description of all operation, maintenance and monitoring requirements

S. 2935 9 1 necessary to assure protection of public health and the environment, 2 which requirements shall be incorporated in a permit; and 3 c. For any site at which institutional controls are to be employed, a 4 description of all use restrictions and the controls necessary to assure 5 protection of public health and the environment, which requirements 6 shall be monitored through an annual certification. 7 4. Once the department issues a certificate of completion pursuant to 8 this title, the certificate of completion shall be recorded and indexed 9 as a declaration of covenant in the office of the recording officer for 10 the county or counties where the subject site is located in the manner 11 prescribed by article nine of the real property law, including the name 12 of the record owner and the tax map parcel number or the section block 13 and lot number of such site, in order for the liability release in the 14 agreement to run with the land for the benefit of lessees, sublessees, 15 successors, assigns and secured creditors. 16 5. Any certificate of completion that includes an institutional 17 control shall provide that any use restrictions imposed on the subject 18 site can be terminated in the event that additional remediation obviates 19 the need for such controls. 20 6. If any of the events described in paragraph a, b, c or d of subdi- 21 vision one of section 27-1421 of this title shall occur at such site, 22 the department shall revoke the certificate of completion. 23 § 27-1414. Payment of reasonable program oversight costs. 24 The department may condition approval of a volunteer's proposed inves- 25 tigation or remediation plan on the payment of charges by or on behalf 26 of such volunteer for reasonable program oversight costs associated with 27 the volunteer's participation in the program, including future monitor- 28 ing costs of institutional or engineering controls. Such charges may be 29 based on a negotiated flat-fee oversight amount as set forth in an 30 agreement pursuant to this article; or on an itemized invoice from the 31 department representing reimbursement for the state's expenses, exclud- 32 ing managerial overhead. 33 § 27-1415. No action site determination. 34 If the department, based on a preliminary environmental assessment and 35 final engineering report describing an investigation, determines that a 36 site currently meets the remediation requirements established pursuant 37 to this title and has no groundwater, surface water, soil or other 38 contamination which requires further investigation or remediation, it 39 shall provide the site owner within thirty days of a request for same, a 40 written determination stating that the state will take no enforcement or 41 remediation action against such site owner or its successors and 42 assigns. Notwithstanding the foregoing, the state shall reserve all of 43 its rights concerning, and such forbearance shall not extend to, any 44 further remediation the department deems necessary based on an unaccept- 45 able risk to public health or the environment attributed to factors that 46 were unknown to the department at the time of its review, including the 47 department's right to require the site owner or its successors and 48 assigns to undertake such further investigation or remediation if neces- 49 sary to support the current uses or the reasonably anticipated uses of 50 the contaminated site. 51 § 27-1417. Dispute resolution or withdrawal. 52 1. If the volunteer and the department fail to agree upon or to reduce 53 to a written agreement the terms of a work plan subsequent to receipt of 54 a second notice of incompleteness pursuant to this article or an agree- 55 ment pursuant to this article after good faith negotiations between such 56 volunteer and the department, the volunteer may elect to withdraw from

S. 2935 10 1 the program in writing or to invoke a dispute resolution provision 2 created pursuant to this section. Before the volunteer exercises its 3 right to withdraw from the program under the provisions of this section, 4 it shall not do so without providing the department with thirty days 5 prior written notice of its intent to do so. If the volunteer withdraws, 6 the parties retain whatever rights they may have had respecting each 7 other as they had before the effective date of the agreement. 8 2. Under a dispute resolution process created pursuant to this 9 section, the volunteer may request arbitration with an administrative 10 law judge to discuss the grounds for rejection in the second notice of 11 incompleteness. Such arbitration shall be held no later than fifteen 12 days after the volunteer's request, with public notice and meetings open 13 to the public. In preparation for this arbitration, the volunteer may 14 send the department a written statement containing the relevant facts 15 upon which the dispute is based, and any data, analysis or opinion 16 supporting the volunteer's position. The department may send a similar 17 statement of its position to the volunteer. At this arbitration, the 18 volunteer shall be given an opportunity to present its responses to the 19 department's objections and the department shall have the authority to 20 reaffirm, modify and/or withdraw such objections and to provide a period 21 of time within which the report or submission should be revised. The 22 decision of the administrative law judge shall be subject to judicial 23 review. 24 § 27-1419. Liability provisions. 25 1. Upon issuance of a certificate of completion pursuant to this 26 title, the liability release shall immediately become effective which 27 release shall resolve the volunteer's liability, including any future 28 liability, to the state and to any other responsible party who may seek 29 statutory or common law contribution or indemnification claims relating 30 to the existence of contamination disclosed in the final report submit- 31 ted pursuant to this title, or, if no such report is issued, the final 32 investigation report issued pursuant to this title. Upon issuance of a 33 certificate of completion, the department, in its role as trustee of 34 natural resources, shall also provide volunteers who are not contrib- 35 utory responsible parties with a liability release that resolves the 36 volunteer's liability, including any future liability, to the state and 37 to any other responsible party for any natural resource damage claims 38 related to the subject site. 39 2. A liability release issued pursuant to subdivision one of this 40 section shall remain in full force and effect and run with the land 41 provided that the volunteer, or the volunteer's successors and assigns 42 through acquisition of title to the brownfield site to which the liabil- 43 ity release applies, secured creditors, and any person who thereafter 44 owns, develops or otherwise occupies the subject site including lessees 45 or sublessees, continues to implement in good faith the program for such 46 site developed pursuant to this title including, but not limited to, 47 completion of the work described in the remediation work plan, and any 48 operation monitoring or maintenance work described in the operation 49 monitoring or maintenance work plan in compliance with the agreement for 50 such site pursuant to this title. 51 3. The liability release issued pursuant to this section shall extend 52 to a person who provides financing for the remediation or redevelopment 53 of the subject site whether provided to the person undertaking the reme- 54 diation or to a person who acquires or develops the property thereafter. 55 However, the liability release shall not extend to a person who is a 56 responsible party for the site unless that person was party to the

S. 2935 11 1 application, remediation program and agreement under this title on which 2 the liability release was issued. 3 4. A subsequent owner or operator of a site remediated pursuant to 4 this title, who is not a responsible party, shall be exempt from any 5 liability for groundwater contamination that occurred prior to the 6 acquisition of the site regardless of whether the previous owner remains 7 responsible for such contamination, provided that all obligations in 8 regard to short term groundwater remediation strategies pursuant to this 9 title at the site have been met. 10 5. The provisions of this title shall not affect an action or a claim, 11 including a statutory or common law claim for contribution or indemnifi- 12 cation, that a volunteer who receives a liability release under this 13 section has or may have against a third party. 14 6. Notwithstanding any other provision of law, a volunteer or a 15 volunteer's officers, directors, employees, servants, agents, succes- 16 sors, and assigns shall have no claim against the New York state envi- 17 ronmental protection and spill compensation fund under article twelve of 18 the navigation law relating to contamination at a site upon issuance of 19 a certificate of completion for remediation performed at such site 20 pursuant to this title. 21 7. Notwithstanding any other provision of this chapter or the naviga- 22 tion law, a volunteer shall not be considered a responsible party under 23 this title or title thirteen of this article due solely to actions 24 undertaken in preparation or implementation of a work plan or agreement 25 unless the volunteer's actions result in a significantly increased risk 26 to public health or the environment. 27 8. Notwithstanding the foregoing, a person receiving a liability 28 exemption or liability limitation under subdivision four, five, six or 29 seven of this section shall be deemed to have waived any claim pursuant 30 to section one hundred eighty-one of the navigation law that such person 31 may have against the New York environmental protection and spill compen- 32 sation fund. 33 § 27-1421. Reopeners and change of use. 34 1. Except as otherwise provided in subdivision two of this section, a 35 liability release granted pursuant to this title shall not extend to any 36 further investigation or remediation of contaminants the department 37 deems necessary: 38 a. due to environmental conditions at, on, under or migrating from the 39 brownfield site that were unknown to the department at the time of its 40 issuance of the certification of completion pursuant to this title, if, 41 in light of such conditions, the remedy selected for such site pursuant 42 to this title is not sufficiently protective of public health and the 43 environment for the current use of the brownfield site; or 44 b. due to the failure to implement the remedy selected for the site in 45 good faith as set forth in subdivision two of section 27-1419 of this 46 title of the liability release provision of this title; or 47 c. due to the department's affirmative demonstration that an environ- 48 mental standard or other risk factor on which a remedy pursuant to this 49 title was based renders the remedy proposed or implemented at the brown- 50 field site no longer protective of public health or the environment; or 51 d. due to fraud committed by the volunteer in demonstrating attainment 52 with the remediation requirements established for the brownfield site 53 pursuant to this title. 54 2. If a brownfield site was remediated in accordance with the pre-ap- 55 proved remedial strategy Track 2 pursuant to paragraph b of subdivision 56 two of section 27-1429 of this title, and which has been the subject of

S. 2935 12 1 a no action site determination or a certificate of completion and if a 2 change is proposed which would result in a different remedy from the 3 reasonably anticipated final remedy contemplated for the site when such 4 no action site determination or certificate of completion was issued and 5 such new final remedy would result in an increased exposure risk to 6 public health or the environment, then the state shall order, before the 7 new final remedy can be implemented, the person responsible for such 8 change to undertake such further investigation or remediation as is 9 necessary to assure sufficient protection of the environment and public 10 health. 11 3. Notwithstanding the provisions in subdivision one of this section, 12 if the department determines that a site has been remediated in accord- 13 ance with the unrestricted use Track 1 pursuant to section 27-1429 of 14 this title, only paragraphs a and d of subdivision one of this section 15 shall apply to the liability release. Such liability release will be 16 unaffected by the discovery in the future of previously unknown environ- 17 mental conditions migrating onto such site from off-site. If the events 18 described in paragraph c of subdivision one of this section shall occur 19 at such site, the department shall be responsible for taking such meas- 20 ures as are necessary to remediate such property to an acceptable condi- 21 tion using monies from the industrial transfer account of the hazardous 22 waste remedial fund established under section ninety-seven-b of the 23 state finance law. 24 § 27-1423. Postponement of hazardous waste site registration and naviga- 25 tion law cleanup or removal. 26 Once an application with respect to a brownfield site has been made 27 pursuant to this title and provided the volunteer is complying in good 28 faith with the provisions of this article, such brownfield site shall 29 not be identified in any spill report issued under the navigation law or 30 the registry maintained pursuant to section 27-1305 of this article 31 unless such site was listed in a spill report or the registry prior to 32 the effective date of this section and no action pursuant to section one 33 hundred seventy-six of the navigation law to cleanup or remove a 34 discharge of petroleum may be taken by the department or directed or 35 authorized by the department to be taken with respect to such site, 36 unless there is a significant threat to human health and the environ- 37 ment. 38 § 27-1425. State brownfields advisory board. 39 1. a. There is hereby created within the department the "state brown- 40 fields advisory board" hereinafter referred to in this section as the 41 board. Such board shall consist of fourteen members, including the 42 commissioner and the commissioner of health, or their designees, and 43 twelve at large members appointed by the governor, two of whom shall be 44 appointed upon recommendation of the temporary president of the senate 45 and two of whom shall be appointed upon recommendation of the speaker of 46 the assembly, one of whom shall be appointed upon recommendation of the 47 minority leader of the senate and one of whom shall be appointed upon 48 recommendation of the minority leader of the assembly, and, of the 49 remaining six, two shall live within a municipality within which exists 50 an inactive hazardous waste site, or sites, as listed pursuant to 51 section 27-1305 of this article, and have been involved in a citizen's 52 organization that has a purpose relating to the site or sites within 53 that municipality, two shall be representatives of organizations whose 54 prime function is the protection of natural resources and enhancement of 55 the environmental quality of the state and two shall be representatives 56 of industries that generate hazardous waste in the state. None of the

S. 2935 13 1 members appointed by the governor shall be officers or employees of any 2 state department or agency and each shall be, by professional training 3 or experience and attainment, qualified to analyze and interpret matters 4 pertaining to hazardous waste management and remediation and the rede- 5 velopment of brownfield sites. 6 b. No at large member of the board may appoint a designee to temporar- 7 ily or permanently assume his place on the board. 8 2. a. The commissioner shall serve as the chair of the board and the 9 board shall elect a vice chair from among the appointed members to 10 preside in the absence of the chair. 11 b. Of the twelve at large members appointed by the governor, each 12 shall be affirmed or appointed on January thirty-first, two thousand 13 four and reaffirmed and reappointed every two years thereafter and each 14 shall hold office until such time as the board shall cease to exist or 15 until he shall resign or be removed in the manner provided by law. Any 16 vacancy on the board shall be filled by appointment pursuant to subdivi- 17 sion one of this section for the unexpired balance of the term. 18 3. The members of the board shall serve without compensation for their 19 services as members of the board, except that each of them shall be 20 allowed the necessary and actual expenses which they shall incur in the 21 performance of their duties under this section. 22 4. All the meetings of the board shall be open to the public. Notice 23 of the meeting shall appear in the environmental notice bulletin. 24 5. The board shall have the power, duty and responsibility to: 25 a. Serve as a working forum for the exchange of views, concerns, 26 ideas, information and recommendations relating to the development and 27 the implementation of the brownfields program. 28 b. Request and receive from the department at each meeting of the 29 board any products produced by the technical advisory panel created 30 pursuant to section 27-1427 of this title and any supporting documents 31 or other pertinent data. All information requested by or provided to the 32 board shall also be provided to the temporary president of the senate, 33 the speaker of the assembly, and the chair of the senate and assembly 34 environmental conservation committees. 35 c. Compel the attendance at each meeting of the board of such person- 36 nel of the department, or of other appropriate state departments or 37 agencies, as may reasonably be expected to supply any pertinent data the 38 board may request. 39 d. Monitor and review the implementation of the brownfields program 40 and the policies, program objectives, methods, and strategies outlined 41 in the program, the annual implementation status report, any program 42 update, the registry, and the quarterly site status reports by the 43 department, as well as information which the board may acquire from 44 other sources. 45 e. Review the hazardous waste site remediation remaining to be 46 completed under the state inactive hazardous waste remedial plan as 47 updated, the estimate of the costs which would be incurred in the 48 completion of this remediation, the schedule under which the costs will 49 be incurred, the revenues and resources expected to be available to meet 50 these costs. 51 f. Based upon its monitoring, reviewing and other information avail- 52 able to it, the board shall report to the governor and to the legisla- 53 ture on or before January first of each year its assessment of the 54 implementation of the brownfields program, together with its comments, 55 suggestions, and recommendations regarding the program, its implementa-

S. 2935 14 1 tion, available funding and resources, and the need for steps to assure 2 the future availability of funding. 3 6. a. The board shall: 4 (1) Meet at least semiannually; 5 (2) Keep a record of all its proceedings and provide such record to 6 the public upon request; and 7 (3) Determine the rules of its own procedures. 8 b. Seven members of the board shall constitute a quorum for the trans- 9 action of any business of the board. 10 7. Staff services, including recording of board proceedings, shall be 11 performed by personnel of the department, or such state departments or 12 other agencies as the chairman deems appropriate or desirable. 13 8. For the purposes of this section, the at large members of the board 14 shall be considered officers or employees of public entities and shall 15 be afforded such defense and indemnification provided pursuant to 16 section eighteen of the public officers law. 17 9. The board shall cease to exist when every hazardous waste and 18 brownfield site is remediated. 19 § 27-1427. Brownfields technical advisory panel. 20 1. a. There is hereby created within the department the "brownfields 21 technical advisory panel" hereinafter referred to in this section as the 22 panel. Such panel shall consist of eight members, including the commis- 23 sioner and the commissioner of health, or their designees, and academics 24 from Cornell University, state university of New York at Buffalo, state 25 university of New York college of environmental science and forestry, 26 Rensselaer Polytechnic Institute, Columbia University school of medi- 27 cine, and the city university of New York graduate school. Each shall 28 be, by professional training or experience and attainment, qualified to 29 analyze and interpret matters pertaining to hazardous waste management 30 and the remediation and the redevelopment of brownfield sites. The 31 members of the panel shall be appointed by the commissioner and the 32 commissioner of health. 33 b. No at large member of the panel may appoint a designee to temporar- 34 ily or permanently assume his or her place on the panel. 35 2. The commissioner shall serve as chair of the panel and the panel 36 shall elect a vice chair from among the appointed members to preside in 37 the absence of the chair. 38 3. The members of the panel shall serve without compensation for their 39 services as members of the panel, except that each of them shall be 40 allowed the necessary and actual expenses which he or she shall incur in 41 the performance of his or her duties under this section. 42 4. The panel shall: 43 a. meet at least quarterly; 44 b. keep a record of all its proceedings and provide such record to the 45 public upon request; and 46 c. determine the rules of its own procedures. 47 5. The panel shall have the power, duty and responsibility to: 48 a. Within twelve months of the effective date of this title, develop 49 recommendations to the department regarding pre-approved clean-up strat- 50 egies to be employed by participants in the brownfields program Track 2 51 created pursuant to section 27-1429 of this title. Such standards and 52 remedies shall be protective of human health and the environment and 53 shall be developed as follows: 54 (1) The panel shall perform an analysis of the cleanups previously 55 conducted under the department's statutory hazardous waste remediation

S. 2935 15 1 program, excepting cleanups conducted on landfills, to find sites with 2 similar characteristics, including but not limited to: 3 (a) historical use, 4 (b) soil type, 5 (c) hydro-geologic and geologic conditions, 6 (d) contaminants and contaminant concentrations, 7 (e) impact on groundwater, 8 (f) site size, and 9 (g) depth of contamination. 10 (2) In those instances where there are at least two sites with similar 11 characteristics, the panel shall develop pre-approved clean-up strate- 12 gies for sites with such similar characteristics that reflect the reme- 13 dies undertaken pursuant to title thirteen of this article and remedial 14 technologies identified by the EPA REACH IT program to the extent such 15 technologies will achieve an equivalent or more permanent remediation. 16 b. Within twelve months of the effective date of this section, develop 17 pre-approved clean-up strategies applicable to sites with pervasively 18 contaminated soil where such contamination is low level but not meeting 19 the numerical standards applicable to remediation of soils on residen- 20 tial property. The pre-approved clean-up strategy shall include conserv- 21 ative approaches to creating adequate buffers to exposure that will be 22 protective over time and shall delineate those circumstances where, with 23 the use of the pre-approved clean-up strategy, a deed restriction would 24 not be required because adequate protection of the public health and 25 environment is provided through the strategy. 26 c. At a minimum all developed pre-approved clean-up strategies shall 27 describe: 28 (1) how sources of contamination will be remediated, 29 (2) short and long term groundwater remediation strategies, and 30 (3) the point at which each pre-approved clean-up strategy shall be 31 deemed complete for purposes of the issuance of a certification of 32 completion. 33 d. Within twelve months of the effective date of this section, the 34 panel shall further be responsible for developing a definition of 35 "source of contamination" and shall develop groundwater remedial strate- 36 gies that meet the requirements of this title. 37 e. Serve as a working forum for the exchange of views, concerns, 38 ideas, information and recommendations relating to hazardous waste 39 management and the remediation of inactive hazardous waste disposal 40 sites. 41 6. The panel shall have the power to: 42 a. Request and receive from the department and the department of 43 health at each meeting of the panel any portions of a record of decision 44 or any revisions, amendments or changes available for review, and any 45 supporting documents or other pertinent data. All information requested 46 by or provided to the panel shall also be provided to the temporary 47 president of the senate, the speaker of the assembly, and the chair of 48 the senate and assembly environmental conservation committees upon 49 request. 50 b. Compel the attendance at each meeting of the panel of such person- 51 nel of the department, or of other appropriate state departments or 52 agencies, as may reasonably be expected to supply any pertinent data the 53 panel may request. 54 c. Employ a graduate student enrolled or recently enrolled at one of 55 the following universities: Cornell University, state university of New 56 York at Buffalo, state university of New York college of environmental

S. 2935 16 1 science and forestry, Rensselaer Polytechnic Institute, Columbia Univer- 2 sity school of medicine, and the city university of New York graduate 3 school. Each graduate student shall be trained or experienced and quali- 4 fied to analyze and interpret matters pertaining to hazardous waste 5 management and the remediation and the redevelopment of brownfield 6 sites. 7 7. For the purposes of this section, the at large members of the panel 8 shall be considered officers or employees of public entities and shall 9 be afforded such defense and indemnification provided pursuant to 10 section eighteen of the public officers law. 11 8. The panel shall cease to exist after the promulgation of regu- 12 lations but may be reconvened at the request of the state brownfields 13 advisory board. 14 § 27-1429. Powers and duties of the commissioner. 15 1. The commissioner shall promulgate regulations as may be required to 16 implement the provisions of this title. 17 Within six months of the brownfields technical panel's recommendations 18 to the department, and with due consideration given to the pre-approved 19 cleanup strategies developed by the brownfields technical advisory 20 panel, the commissioner shall promulgate regulations that set forth 21 clean up standards and remedial strategies to be employed by partic- 22 ipants in the brownfields program. Such standards and remedies shall be 23 protective of human health and the environment and will be developed in 24 accordance with four remedial tracks as follows: 25 a. Track 1 - Unrestricted use. This track shall set out the require- 26 ments for a remedial plan designed to result in a cleanup level that 27 will allow the site to be used for any purpose without restriction and 28 without reliance on institutional controls or engineering controls. 29 i. The regulations shall include, but not be limited to, a table of 30 clean up standards for contamination in soil, and a description of pre- 31 approved remedial technologies that may be used for achieving the stand- 32 ards based on site specific conditions. 33 ii. In the development of soil cleanup standards and remedial alterna- 34 tives, the commissioner shall consider any cancer and non-cancer human 35 health effects; background contamination; exposures to the same contam- 36 inant from other routes; the strength of the toxicological data base; 37 impacts on sensitive populations, including children; protection of 38 groundwater, surface water, and air (including indoor air); and 39 protection of ecological resources, including fish and wildlife. In 40 addition, the cumulative effects of contaminants and the possibility 41 that some contaminants may act through similar toxicological mechanisms 42 shall be considered. The feasibility of additional reduction of contam- 43 ination, based on experience under the existing state remedial programs, 44 shall also be considered, particularly where toxicological, exposure or 45 other pertinent data are inadequate or nonexistent for a specific chemi- 46 cal. 47 b. Track 2 - Pre-approved remedies. This track shall set out alterna- 48 tives by which an applicant may remediate a site using a pre-approved 49 remedy based on a set of site-specific considerations including, but not 50 limited to: 51 (a) historical use, 52 (b) soil type, 53 (c) hydro-geologic and geologic conditions, 54 (d) contaminants and contaminant concentrations, 55 (e) impact on groundwater, 56 (f) site size, and

S. 2935 17 1 (g) depth of contamination. 2 c. Track 3 - Site specific remediation. The applicant may propose a 3 remedy other than a pre-approved remedy but must demonstrate that the 4 proposed remedy is protective of human health and the environment over 5 the long and short term. To the extent that the proposed remedy will 6 require engineering controls and institutional controls, the applicant 7 must demonstrate that a permanent remedy is not feasible. 8 d. Track 4 - Class 2 Sites. In the case of Class 2 sites as identified 9 by the department pursuant to subparagraph two of paragraph b of subdi- 10 vision four of section 27-1305 of this article, the volunteer shall 11 conduct site remediation in conformance with title thirteen of this 12 article and the regulations promulgated thereunder. 13 e. For all tracks, exposed surface soils must be remediated to the 14 numerical standards developed for Track 1, and sources of contamination 15 shall be removed unless it is determined by the department that such 16 removal is unfeasible, then such sources of contamination shall be reme- 17 diated by a demonstrated method that is the most protective of human 18 health, and feasible. In all cases, unless additional protection is 19 feasible as described above, the level of the risk associated with soil 20 cleanup levels for individual contaminants shall be an excess cancer 21 risk of one in one million for carcinogenic end points and a hazard 22 index of one for non-cancer end points for each category. 23 3. The commissioner shall create, update and maintain a publicly 24 accessible database to monitor and track all sites which have partic- 25 ipated in or may be eligible for participation in the remediation 26 programs established pursuant to this title and title thirteen of this 27 article and to provide information to the public concerning such sites. 28 Data incorporated into such system for each site shall include, but not 29 be limited to, a site summary, name of site owner or owners, geographic 30 information system location, status of site remedial activities, current 31 uses, existence of use restrictions, description of engineering and 32 institutional controls, and a contact number to obtain additional infor- 33 mation. If and when restrictions and institutional controls are lifted 34 or engineering controls discontinued, the site information shall be 35 amended accordingly. In addition to site specific data, such system 36 shall incorporate other relevant data, such as sanborn maps, community 37 plans, and economic development zones. The data in such system shall be 38 coordinated with any state or marketing program for the redevelopment of 39 contaminated sites. Data provided through such system shall be kept 40 current to the extent feasible and there shall be a means for indicating 41 when data was last updated. 42 4. The commissioner shall establish: 43 a. an enforceable permit system whereby any site remediated pursuant 44 to this title or title thirteen of this article that has ongoing engi- 45 neering controls or maintenance or monitoring requirements shall be 46 required to obtain a permit, renewable at intervals as determined by the 47 commissioner, authorizing the future use of such site upon the condition 48 or conditions that such controls or requirements are implemented or 49 fulfilled; and 50 b. an enforceable certification program whereby the owner of any site 51 remediated pursuant to this title or title thirteen of this article that 52 has ongoing restrictions or limitations on the use of or activities at 53 the site shall be required to certify to the commissioner annually that 54 such restrictions or limitations have been and continue to be complied 55 with under the program.

S. 2935 18 1 5. The commissioner shall take responsibility for the remediation of 2 off-site groundwater contamination from brownfield sites except for 3 off-site contamination from brownfield sites for which the volunteer is 4 a contributory responsible party. Such responsibility shall include: 5 a. assessing whether initiating groundwater remediation at such site 6 is a priority, and 7 b. in those cases in which initiation of groundwater remediation is a 8 priority, either implementing such remediation to the extent that appro- 9 priations allow or seeking an order for such remediation or the costs of 10 such remediation from a responsible party using available administra- 11 tive, statutory or common law remedies. 12 § 27-1431. Citizen participation/public notification. 13 1. The department shall place a notification of receipt of a request 14 to participate in the voluntary cleanup program pursuant to this title 15 in the environmental notice bulletin. 16 2. Upon the department's finalization of a work plan for investi- 17 gation, the department must notify individuals, groups and/or organiza- 18 tions that have expressed interest in or are affected by the work plan 19 of such work plan, and must publish a notice in the environmental notice 20 bulletin. Further, upon the satisfactory completion of the investigation 21 performed under such voluntary agreement, the department must notify 22 individuals, groups and/or organizations that have expressed interest in 23 or are affected by the voluntary agreement and publish a notice in the 24 environmental notice bulletin regarding such satisfactory completion. 25 3. Before the department finalizes a proposed work plan for remedi- 26 ation, other than a work plan for an interim remedial measure, the 27 department must notify individuals, groups and organizations that have 28 expressed interest in or are affected by the proposed work plan of the 29 proposed work plan for remediation and publish a notice requesting 30 comments concerning the proposed work plan in the environmental notice 31 bulletin. Such notice shall provide for a forty-five day public comment 32 period following publication of the notice required under this section. 33 The department shall hold a public meeting on the proposed work plan if 34 the commissioner has found that the affected site constitutes a signif- 35 icant threat to the public health or environment. 36 § 4. Subdivisions 1 and 4 of section 27-1301 of the environmental 37 conservation law, subdivision 1 as amended by chapter 857 of the laws of 38 1982 and subdivision 4 as added by chapter 282 of the laws of 1979, are 39 amended to read as follows: 40 1. "Hazardous waste" means a waste which appears on the list or satis- 41 fies the characteristics promulgated by the commissioner pursuant to 42 section 27-0903 of this [chapter and, until, but not after, the promul- 43 gation of such list, a waste or combination of wastes, which because of 44 its quantity, concentration, or physical, chemical or infectious charac- 45 teristics may: 46 a. Cause, or significantly contribute to an increase in mortality or 47 an increase in serious irreversible or incapacitating reversible 48 illness; or 49 b. Pose a substantial present or potential hazard to human health or 50 the environment when improperly treated, stored, transported, disposed 51 or otherwise managed] article and any substance which appears on the 52 list promulgated pursuant to section 37-0103 of this chapter; provided, 53 however, that the term "hazardous waste" does not include: 54 a. Natural gas, natural gas liquids, liquefied natural gas, synthetic 55 gas usable for fuel, or mixtures of natural gas and such synthetic gas; 56 nor

S. 2935 19 1 b. The residue of emissions from the engine exhaust of a motor vehi- 2 cle, rolling stock, aircraft, vessel, or pipeline pumping station 3 engine; nor 4 c. Source, byproduct, or special nuclear material from a nuclear inci- 5 dent, as those terms are defined in the Atomic Energy Act of 1954, if 6 such release is subject to requirements with respect to financial 7 protection established under section 170 of such act (42 U.S.C. 2210) 8 or, for the purpose of section 104 of the comprehensive environmental 9 response, compensation and liability act of 1980 (42 U.S.C. 9604) or any 10 other response action, any source, byproduct, or special nuclear materi- 11 al from any processing site designated under section 102(a)(1) or 302(a) 12 of the Uranium Mill Tailings Radiation Control Act of 1978 (42 U.S.C. 13 7912(a)(1) or 7942(a)); nor 14 d. Petroleum as defined in section one hundred seventy-two of the 15 navigation law, even if appearing on the list promulgated pursuant to 16 section 37-0103 of this chapter. 17 4. "Person" means an individual, trust, firm, joint stock company, 18 corporation, partnership, association, state, municipality, commission, 19 political subdivision of a state, public benefit corporation or any 20 interstate body. 21 a. Such term shall include any person owning or operating an inactive 22 hazardous waste disposal site but does not include a person that is a 23 lender that, without participating in the management of such site, holds 24 indicia of ownership primarily to protect the security interest of the 25 person in such site; nor does it include a person that is a lender that 26 did not participate in management of such site prior to foreclosure, 27 notwithstanding that the person forecloses on such site and after fore- 28 closure, sells, re-leases (in the case of a lease finance transaction), 29 or liquidates such site, maintains business activities, winds up oper- 30 ations, undertakes in a non-negligent manner remedial actions under the 31 direction of the department, with respect to such site, or takes any 32 other measure to preserve, protect, or prepare such site prior to sale 33 or disposition, if the person seeks to sell, re-lease (in the case of a 34 lease finance transaction), or otherwise divest the person of such site 35 at the earliest practicable commercially reasonable time, on commercial- 36 ly reasonable terms, taking into account market conditions and legal and 37 regulatory requirements. For purposes of this paragraph: 38 (i) the term "participate in management" means actually participating 39 in the management or operational affairs of such site; and does not 40 include merely having the capacity to influence, or the unexercised 41 right to control, such site's operations; 42 (ii) a person that is a lender and that holds indicia of ownership 43 primarily to protect a security interest in such site shall be consid- 44 ered to participate in management only if, while the borrower is still 45 in possession of such site, the person exercises decision making control 46 over the environmental compliance related to such site, such that the 47 person has undertaken responsibility for the hazardous waste handling or 48 disposal practices related to such site; or exercises control at a level 49 comparable to that of a manager of such site, such that the person has 50 assumed or manifested responsibility for the overall management of such 51 site encompassing day-to-day decision making with respect to environ- 52 mental compliance; or over all or substantially all of the operational 53 functions (as distinguished from financial or administrative functions) 54 of such site other than the function of environmental compliance;

S. 2935 20 1 (iii) the term "participate in management" does not include performing 2 an act or failing to act prior to the time at which a security interest 3 is created in such site; 4 (iv) the term "participate in management" does not include holding a 5 security interest or abandoning or releasing a security interest; 6 including in the terms of an extension of credit, or in a contract or 7 security agreement relating to the extension, a covenant, warranty, or 8 other term or condition that relates to environmental compliance; moni- 9 toring or enforcing the terms and conditions of the extension of credit 10 or security interest; monitoring or undertaking one or more inspections 11 of such site; requiring a response action or other lawful means of 12 addressing the release or threatened release of a hazardous waste in 13 connection with such site prior to, during, or on the expiration of the 14 term of the extension of credit; providing financial or other advice or 15 counseling in an effort to mitigate, prevent, or cure default or diminu- 16 tion in the value of such site; restructuring, renegotiating, or other- 17 wise agreeing to alter the terms and conditions of the extension of 18 credit or security interest; exercising forbearance; exercising other 19 remedies that may be available under applicable law for the breach of a 20 term or condition of the extension of credit or security agreement; or 21 conducting in a non-negligent manner a remedial action directly or under 22 the direction of the department, if the actions do not rise to the level 23 of participating in management (within the meaning of subparagraphs (i) 24 and (ii) of this paragraph); 25 (v) the term "extension of credit" includes a lease finance trans- 26 action in which the lessor does not initially select such leased site 27 and does not during the lease term control the daily operations or main- 28 tenance of such site; or that conforms with regulations issued by the 29 appropriate federal banking agency (as defined in 12 USC section 1813) 30 or the superintendent of banks or with regulations issued by the 31 National Credit Union Administrative Board, as appropriate; 32 (vi) the term "financial or administrative function" includes a func- 33 tion such as that of a credit manager, accounts payable officer, 34 accounts receivable officer, personnel manager, comptroller, or chief 35 financial officer, or a similar function; 36 (vii) the terms "foreclosure" and "foreclose" mean, respectively, 37 acquiring and to acquire, such site through purchase at sale under a 38 judgment or decree, power of sale, or nonjudicial foreclosure sale; a 39 deed in lieu of foreclosure, or similar conveyance from a trustee; or 40 repossession, if such site was security for an extension of credit 41 previously contracted; conveyance pursuant to an extension of credit 42 previously contracted, including the termination of a lease agreement; 43 or any other formal or informal manner by which the person acquires, for 44 subsequent disposition, title to or possession of such site in order to 45 protect the security interest of the person; 46 (viii) the term "lender" means an insured depository institution (as 47 defined in 12 USC Section 1813); an insured credit union (as defined in 48 12 USC section 1752); a bank or association chartered under the Farm 49 Credit Act of 1971 (12 U.S.C. 2001 et seq.); a leasing or trust company 50 that is an affiliate of an insured depository institution; any person 51 (including a successor or assignee of any such person) that makes a bona 52 fide extension of credit to or takes or acquires a security interest 53 from a nonaffiliated person; the Federal National Mortgage Association, 54 the Federal Home Loan Mortgage Corporation, the Federal Agricultural 55 Mortgage Corporation, or any other entity that in a bona fide manner 56 buys or sells loans or interests in loans; a person that insures or

S. 2935 21 1 guarantees against a default in the repayment of an extension of credit, 2 or acts as a surety with respect to an extension of credit, to a nonaf- 3 filiated person; and a person that provides title insurance and that 4 acquires such site as a result of assignment or conveyance in the course 5 of underwriting claims and claims settlement; 6 (ix) the term "operational function" includes a function such as that 7 of a facility or plant manager, operations manager, chief operating 8 officer, or chief executive officer; and 9 (x) the term "security interest" includes a right under a mortgage, 10 deed of trust, assignment, judgment lien, pledge, security agreement, 11 factoring agreement, or lease and any other right accruing to a person 12 to secure the repayment of money, the performance of a duty, or any 13 other obligation by a nonaffiliated person. 14 b. Such term shall include any person owning or operating an inactive 15 hazardous waste disposal site but does not include the state or a public 16 corporation which acquired, and thereafter retained without participat- 17 ing in the management of such site, ownership or control involuntarily 18 by virtue of its function as sovereign. Neither the state nor any public 19 corporation shall incur under this chapter any liability as to matters 20 within the jurisdiction of the department as a result of actions taken 21 in response to an emergency created by the release or threatened release 22 of hazardous waste by another person, provided that such actions by the 23 state or public corporation did not constitute reckless, willful, wanton 24 or intentional misconduct. As used in this paragraph: 25 (i) "public corporation" means a public corporation as defined in the 26 general construction law; 27 (ii) involuntary acquisition of ownership or control includes, but is 28 not limited to, the following: 29 (A) acquisitions by the state or a public corporation in its capacity 30 as sovereign, including acquisitions pursuant to abandonment 31 proceedings, or escheat, or any other circumstance of involuntary acqui- 32 sition in its capacity as sovereign; 33 (B) acquisitions by the state or a public corporation, or its agent, 34 acting as a conservator or receiver pursuant to a clear and direct stat- 35 utory mandate or regulatory authority; 36 (C) acquisitions of assets through foreclosure and its equivalents, or 37 otherwise, by the state or a public corporation in the course of admin- 38 istering a loan, loan guarantee or loan insurance program; 39 (D) acquisitions by the state or a public corporation pursuant to 40 seizure or forfeiture authority; and 41 (E) acquisitions by the state or a public corporation as the result of 42 tax delinquency proceedings, provided, that such ownership or control is 43 not retained primarily for investment purposes; 44 (iii) "management participation" means that the state or public corpo- 45 ration is actually participating in the management or operation of the 46 property but does not include the mere capacity to influence, ability to 47 influence or unexercised right to control the operation of the proper- 48 ty. 49 Nothing contained in this paragraph affects the applicability of para- 50 graph a of this subdivision in favor of a holder of a security interest 51 according to the terms thereof. 52 c. Such term shall include any person owning or operating an inactive 53 hazardous waste disposal site, including a fiduciary; provided, however, 54 that such liability on the part of a fiduciary shall not exceed the 55 assets held in the fiduciary capacity if such person is not liable inde- 56 pendently of such person's ownership as a fiduciary or actions taken in

S. 2935 22 1 a fiduciary capacity including, but not limited to, the fiduciary negli- 2 gently causing or contributing to the release or threatened release of 3 hazardous waste at such site. 4 (i) For purposes of this paragraph: 5 (A) the term "fiduciary" means a person acting for the benefit of 6 another party as a bona fide trustee; executor; administrator; custo- 7 dian; guardian of estates or guardian ad litem; receiver; conservator; 8 committee of estates of incapacitated person; personal representative; 9 trustee (including a successor to a trustee) under an indenture agree- 10 ment, trust agreement, lease, or similar financing agreement, for debt 11 securities, certificates of interest or certificates of participation in 12 debt securities, or other forms of indebtedness as to which the trustee 13 is not, in the capacity of trustee, the lender; or representative in any 14 other capacity that the department, after providing public notice, 15 determines to be similar to the various capacities previously described 16 in this paragraph; and does not include either a person that is acting 17 as a fiduciary with respect to a trust or other fiduciary estate that 18 was organized for the primary purpose of, or is engaged in, actively 19 carrying on a trade or business for profit unless the trust or other 20 fiduciary estate was created as part of, or to facilitate, one or more 21 estate plans or because of the incapacity of a natural person or a 22 person that acquires ownership or control of a property with the objec- 23 tive purpose of avoiding liability of the person or any other person. 24 (B) the term "fiduciary capacity" means the capacity of a person in 25 holding title to a property, or otherwise having control of or an inter- 26 est in a property, pursuant to the exercise of the responsibilities of 27 the person as a fiduciary. 28 (ii) Nothing in this paragraph affects the rights or immunities or 29 other defenses that are available under law that are applicable to a 30 person subject to this subdivision; or creates any liability for a 31 person or a private right of action against a fiduciary or any other 32 person. 33 (iii) Nothing in this paragraph 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 (iv) This paragraph 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 d. Such term shall include any person owning or operating an inactive 45 hazardous waste disposal site, including an industrial development agen- 46 cy created under the general municipal law, other than one that holds 47 bare legal title to such site; has not participated with any party 48 responsible under law for the remediation of contamination in, on, or 49 from such site to attempt to have such a party avoid its remedial 50 liability; has not exercised any contractual rights it may have or had, 51 if any, under the lease, guarantee, or any other financing agreement 52 pursuant to which the industrial development agency would assume control 53 over the actual operation of the site; and has not taken possession or 54 control of the site. Nothing in this paragraph affects the rights or 55 immunities or other defenses that are available under law that are 56 applicable to an industrial development agency; or creates any liability

S. 2935 23 1 for a person or a private right of action against an industrial develop- 2 ment agency or any other person. 3 e. Such term shall not include any individual, trust, firm, joint 4 stock company, corporation, partnership, association, state, munici- 5 pality, commission, political subdivision of a state, public benefit 6 corporation or interstate body who arranged for recycling of recyclable 7 material. 8 (i) A determination whether or not such individual, trust, firm, joint 9 stock company, corporation, partnership, association, state, munici- 10 pality, commission, political subdivision of a state, public benefit 11 corporation or interstate body shall be deemed a person under this 12 subdivision for any material that is not a recyclable material as that 13 term is used in subparagraph (ii), (iii), (iv) or (v) of this paragraph 14 shall be made, without regard to subparagraph (ii), (iii), (iv), or (v) 15 of this paragraph. 16 (ii) For purposes of this paragraph, the term "recyclable material" 17 means scrap paper, scrap plastic, scrap glass, scrap textiles, scrap 18 rubber (other than whole tires), scrap metal, or spent lead-acid, spent 19 nickel-cadmium, and other spent batteries, as well as minor amounts of 20 material incident to or adhering to the scrap material as a result of 21 its normal and customary use prior to becoming scrap, provided, however, 22 that such term shall not include: 23 (A) shipping containers of a capacity from thirty liters to three 24 thousand liters, whether intact or not, having any hazardous waste (but 25 not metal bits and pieces that form an integral part of the container) 26 contained in or adhering thereto; or 27 (B) any item of material that contained polychlorinated biphenyls at a 28 concentration in excess of fifty parts per million or any new standard 29 promulgated pursuant to applicable state laws. 30 (iii) Transactions involving scrap paper, scrap plastic, scrap glass, 31 scrap textiles, or scrap rubber (other than whole tires) shall be deemed 32 to be arranging for recycling if the individual, trust, firm, joint 33 stock company, corporation, partnership, association, state, munici- 34 pality, commission, political subdivision of a state, public benefit 35 corporation or interstate body who arranged for the transaction (by 36 selling recyclable material or otherwise arranging for the recycling of 37 recyclable material) can demonstrate by a preponderance of the evidence 38 that all of the following criteria were met at the time of the trans- 39 action: 40 (A) the recyclable material met a commercial specification grade; 41 (B) a market existed for the recyclable material; 42 (C) a substantial portion of the recyclable material was made avail- 43 able for use as feedstock for the manufacture of a new saleable product; 44 (D) the recyclable material could have been a replacement or substi- 45 tute for a virgin raw material, or the product to be made from the 46 recyclable material could have been a replacement or substitute for a 47 product made, in whole or in part, from a virgin raw material; 48 (E) for transactions occurring ninety days or more after the date of 49 enactment of this paragraph, such individual, trust, firm, joint stock 50 company, corporation, partnership, association, state, municipality, 51 commission, political subdivision of a state, public benefit corporation 52 or interstate body exercised reasonable care to determine that the site 53 where the recyclable material was handled, processed, reclaimed, or 54 otherwise managed by another entity (hereinafter in this paragraph 55 referred to as a "consuming facility") was in compliance with substan- 56 tive (not procedural or administrative) provisions of any federal,

S. 2935 24 1 state, or local environmental law or regulation, or compliance with any 2 order or decree issued pursuant thereto, applicable to the handling, 3 processing, reclamation, storage, or other management activities associ- 4 ated with recyclable material; 5 (F) for purposes of this subdivision, "reasonable care" shall be 6 determined using criteria that include, but are not limited to: 7 (I) the price paid in the recycling transaction; 8 (II) the ability of such individual, trust, firm, joint stock company, 9 corporation, partnership, association, state, municipality, commission, 10 political subdivision of a state, public benefit corporation or inter- 11 state body to detect the nature of the consuming facility's operations 12 concerning its handling, processing, reclamation, or other management 13 activities associated with recyclable material; and 14 (III) the result of inquiries made to the appropriate federal, state, 15 or local environmental agency (or agencies) regarding the consuming 16 facility's past and current compliance with substantive (not procedural 17 or administrative) provisions of any federal, state, or local environ- 18 mental law or regulation, or compliance with any order or decree issued 19 pursuant thereto, applicable to the handling, processing, reclamation, 20 storage, or other management activities associated with the recyclable 21 material. For the purposes of this paragraph, a requirement to obtain a 22 permit applicable to the handling, processing, reclamation, or other 23 management activity associated with the recyclable materials shall be 24 deemed to be a substantive provision. 25 (iv) (A) transactions involving scrap metal shall be deemed to be 26 arranging for recycling if the individual, trust, firm, joint stock 27 company, corporation, partnership, association, state, municipality, 28 commission, political subdivision of a state, public benefit corporation 29 or interstate body who arranged for the transaction (by selling recycla- 30 ble material or otherwise arranging for the recycling of recyclable 31 material) can demonstrate by a preponderance of the evidence that at the 32 time of the transaction: 33 (I) such individual, trust, firm, joint stock company, corporation, 34 partnership, association, state, municipality, commission, political 35 subdivision of a state, public benefit corporation or interstate body 36 met the criteria set forth in subparagraph (iii) of this paragraph with 37 respect to the scrap metal; 38 (II) such individual, trust, firm, joint stock company, corporation, 39 partnership, association, state, municipality, commission, political 40 subdivision of a state, public benefit corporation or interstate body 41 was in compliance with any applicable regulations or standards regarding 42 the storage, transport, management, or other activities associated with 43 the recycling of scrap metal that the department promulgates under title 44 nine of this article; and 45 (III) such individual, trust, firm, joint stock company, corporation, 46 partnership, association, state, municipality, commission, political 47 subdivision of a state, public benefit corporation or interstate body 48 did not melt the scrap metal prior to the transaction. 49 (B) for purposes of this subparagraph, the melting of scrap metal does 50 not include the thermal separation of two or more materials due to 51 differences in their melting points (referred to as "sweating"). 52 (C) for purposes of this subparagraph, the term "scrap metal" means 53 bits and pieces of metal parts (e.g., bars, turnings, rods, sheets, 54 wire) or metal pieces that may be combined together with bolts or sold- 55 ering (e.g., radiators, scrap automobiles, railroad box cars), which

S. 2935 25 1 when worn or superfluous can be recycled, except for scrap metals that 2 the department excludes from this definition by regulation. 3 (v) transactions involving spent lead-acid batteries, spent nickel- 4 cadmium batteries, or other spent batteries shall be deemed to be 5 arranging for recycling if the individual, trust, firm, joint stock 6 company, corporation, partnership, association, state, municipality, 7 commission, political subdivision of a state, public benefit corporation 8 or interstate body who arranged for the transaction (by selling recycla- 9 ble material or otherwise arranging for the recycling of recyclable 10 material) can demonstrate by a preponderance of the evidence that at the 11 time of the transaction such individual, trust, firm, joint stock compa- 12 ny, corporation, partnership, association, state, municipality, commis- 13 sion, political subdivision of a state, public benefit corporation or 14 interstate body met the criteria set forth in subparagraph (iii) of this 15 paragraph with respect to the spent lead-acid batteries, spent nickel- 16 cadmium batteries, or other spent batteries, but did not recover the 17 valuable components of such batteries; and was in compliance with any 18 applicable federal and state environmental regulations or standards, 19 regarding the storage, transport, management, or other activities asso- 20 ciated with the recycling of such spent lead-acid batteries, nickel-cad- 21 mium batteries or other spent batteries. 22 (vi) The exemptions set forth in subparagraphs (iii), (iv) and (v) of 23 this paragraph shall not apply if: 24 (A) such individual, trust, firm, joint stock company, corporation, 25 partnership, association, state, municipality, commission, political 26 subdivision of a state, public benefit corporation or interstate body 27 had an objectively reasonable basis to believe at the time of the recy- 28 cling transaction: 29 (I) that the recyclable material would not be recycled; 30 (II) that the recyclable material would be burned as fuel, or for 31 energy recovery or incineration; or 32 (III) for transactions occurring before ninety days after the effec- 33 tive date of this paragraph, that the consuming facility was not in 34 compliance with a substantive (not procedural or administrative) 35 provision of any federal, state, or local environmental law or regu- 36 lation, or not in compliance with any order or decree issued pursuant 37 thereto, applicable to the handling, processing, reclamation, or other 38 management activities associated with the recyclable material; 39 (B) such individual, trust, firm, joint stock company, corporation, 40 partnership, association, state, municipality, commission, political 41 subdivision of the state, public benefit corporation or interstate body 42 had reason to believe that hazardous wastes had been added to the 43 recyclable material for purposes other than processing for recycling; or 44 (C) such individual, trust, firm, joint stock company, corporation, 45 partnership, association, state, municipality, commission, political 46 subdivision of a state, public benefit corporation or interstate body 47 failed to exercise reasonable care with respect to the management and 48 handling of the recyclable material (including adhering to customary 49 industry practices current at the time of the recycling transaction 50 designed to minimize, through source control, contamination of the 51 recyclable material by hazardous wastes). 52 (vii) For purposes of subparagraph (vi) of this paragraph, an objec- 53 tively reasonable basis for belief shall be determined using criteria 54 that include (but are not limited to): 55 (A) the size of the business of such individual, trust, firm, joint 56 stock company, corporation, partnership, association, state, munici-

S. 2935 26 1 pality, commission, political subdivision of a state, public benefit 2 corporation or interstate body; 3 (B) customary industry practices (including customary industry prac- 4 tices current at the time of the recycling transaction designed to mini- 5 mize, through source control, contamination of the recyclable material 6 by hazardous wastes); 7 (C) the price paid in the recycling transaction; and 8 (D) the ability of such individual, trust, firm, joint stock company, 9 corporation, partnership, association, state, municipality, commission, 10 political subdivision of a state, public benefit corporation or inter- 11 state body to detect the nature of the consuming facility's operations 12 concerning its handling, processing, reclamation, or other management 13 activities associated with the recyclable material. 14 (viii) For purposes of subparagraph (vi) of this paragraph, a require- 15 ment to obtain a permit applicable to the handling, processing, reclama- 16 tion, or other management activities associated with recyclable material 17 shall be deemed to be a substantive provision. 18 (ix) Nothing in this paragraph shall be deemed to affect the liability 19 of such individual, trust, firm, joint stock company, corporation, part- 20 nership, association, state, municipality, commission, political subdi- 21 vision of a state, public benefit corporation or interstate body as an 22 owner of a site under paragraph a of subdivision three of section 23 27-1313 of this title. 24 (x) The exclusions from the definition of "person" provided in this 25 paragraph shall not affect any concluded judicial or administrative 26 enforcement action, or any pending judicial action initiated by the 27 state prior to the effective date of this paragraph. 28 (xi) Nothing in this paragraph shall affect: 29 (A) liability under any other federal, state, or local statute or 30 regulation promulgated pursuant to any such statute, including any 31 requirements promulgated by the department under title nine of this 32 article; or 33 (B) the ability of the department to promulgate regulations under any 34 other statute, including title nine of this article. 35 § 5. Paragraph b of subdivision 1 of section 27-1313 of the environ- 36 mental conservation law is relettered paragraph c and a new paragraph b 37 is added to read as follows: 38 b. 1. There shall be no liability under this section for a person 39 otherwise liable who can establish by a preponderance of the evidence 40 that the significant threat to the environment attributable to hazardous 41 waste disposed at an inactive hazardous waste disposal site was caused 42 solely by an act of God; an act of war; or an act or omission of a third 43 party other than an employee or agent of such person, or than one whose 44 act or omission occurs in connection with a contractual relationship 45 existing directly or indirectly, with such person (except where the sole 46 contractual arrangement arises from a published tariff and acceptance 47 for carriage by a common carrier or rail), if such person establishes by 48 a preponderance of the evidence that such person exercised due care with 49 respect to the hazardous waste concerned, taking into consideration the 50 characteristics of such hazardous waste, in light of all relevant facts 51 and circumstances, and took precautions against foreseeable acts or 52 omissions of any such third party and the consequences that could fore- 53 seeably result from such acts or omissions; or any combination of them. 54 For purposes of this paragraph, the term, "contractual relationship," 55 includes, but is not limited to, land contracts, deeds or other instru- 56 ments transferring title or possession, unless the real property on

S. 2935 27 1 which the site concerned is located was acquired by such person after 2 the disposal or placement of the hazardous waste on, in, or at such 3 site, and such person establishes one or more of the circumstances 4 described in subparagraph (i), (ii) or (iii) of this paragraph by a 5 preponderance of the evidence: 6 (i) At the time such person acquired the site such person did not know 7 and has no reason to know that any hazardous waste which is the subject 8 of the significant threat determination was disposed of on, in, or at 9 the site. To establish that such person has no reason to know, such 10 person must have undertaken, at the time of acquisition, all appropriate 11 inquiry into the previous ownership and uses of the property consistent 12 with good commercial or customary practice in an effort to minimize 13 liability. For purposes of the preceding sentence, the commissioner 14 shall take into account any specialized knowledge or experience on the 15 part of such person, the relationship of the purchase price to the value 16 of the property if uncontaminated, commonly known or reasonably ascer- 17 tainable information about the property, the obviousness of the presence 18 or likely presence of contamination at the property, and the ability to 19 detect such contamination by appropriate inspection; or 20 (ii) Such person is a government entity which acquired the site by 21 escheat, or through any other involuntary transfer or acquisition; or is 22 a government entity which acquired ownership or control voluntarily 23 through exercise of its eminent domain authority by purchase or condem- 24 nation, provided that the voluntarily acquiring government entity 25 promptly develops and implements for the site a department approved 26 inactive hazardous waste disposal site remedial program; or 27 (iii) Such person acquired the site by inheritance or bequest, and 28 that such person exercised due care with respect to the hazardous waste 29 concerned, taking into consideration the characteristics of such hazard- 30 ous waste, in light of all relevant facts and circumstances and took 31 precautions against foreseeable acts or omissions of any such third 32 party and the consequences that could foreseeably result from such acts 33 or omissions. 34 Nothing in this paragraph shall diminish the liability of any previous 35 owner or operator of the site who would otherwise be liable under this 36 section. Notwithstanding this paragraph, if such person obtained actual 37 knowledge of the release or threatened release of a hazardous waste at 38 the site when such person owned the site and then subsequently trans- 39 ferred ownership of the site to another person without disclosing such 40 knowledge, such person shall be treated as a person responsible for the 41 disposal of hazardous waste at the site and no defense under this para- 42 graph shall be available to such person. Nothing in this paragraph shall 43 affect the liability under this section of a person who, by any act or 44 omission, caused or contributed to the release or threatened release of 45 a hazardous waste which is the subject of such proceeding relating to 46 such site. 47 2. Any duly designated officer or employee of the department or any 48 other state agency, and any agent, consultant, contractor or other 49 person, including an employee, agent, consultant or contractor of an 50 owner or operator acting at the direction of the department, so author- 51 ized in writing by the commissioner, may enter any inactive hazardous 52 waste disposal site and areas near such site to implement an inactive 53 hazardous waste disposal site remedial program for such site, provided 54 the commissioner has sent a written notice to the owners of record or 55 any known occupants of such site or nearby areas of the intended entry 56 and work at least ten days prior to such initial entry.

S. 2935 28 1 § 6. Subdivision 8 of section 52-0101 of the environmental conserva- 2 tion law, as added by chapter 512 of the laws of 1986, is amended to 3 read as follows: 4 8. "Hazardous waste" shall have the definition set forth in [title 5 nine of article twenty-seven] section 27-1301 of this chapter. 6 § 7. The general municipal law is amended by adding 3 new sections 7 970-r, 970-s and 970-t to read as follows: 8 § 970-r. State assistance; brownfield redevelopment area. 1. Defi- 9 nitions. a. "Applicant" shall mean the municipal government or a commu- 10 nity based organization submitting an application in the manner author- 11 ized by this article. 12 b. "Commissioner" shall mean a commissioner of economic development. 13 c. "Community based organization" shall mean a corporation organized 14 under the not-for-profit corporation law to promote development for 15 public or private uses within a specified geographic area and whose 16 board of directors shall be composed of twenty-five percent residents of 17 the community or communities in such area. 18 d. "Brownfields site" shall have the same meaning as set forth in 19 subdivision one of section 27-1401 of the environmental conservation 20 law. 21 2. Brownfield redevelopment application assistance. Within the limits 22 of appropriations therefor, the commissioner is authorized to provide, 23 on a competitive basis, financial assistance to municipalities, to 24 community based organizations, or to municipalities and community based 25 organizations acting in cooperation to develop information necessary to 26 support an application for the designation of a brownfield redevelopment 27 area. Such financial assistance shall not exceed twenty-five thousand 28 dollars for any such area. 29 3. Application assistance. Application assistance activities may 30 include, but are not limited to, the assembly and development of basic 31 information about: 32 a. the boundaries of the proposed area; 33 b. the number and size of brownfields sites; 34 c. current and anticipated uses of the properties in the proposed 35 area; 36 d. current and anticipated future conditions of groundwater in the 37 proposed area; 38 e. assessments of individual brownfields sites including, where the 39 consent of the site owner has been obtained, the conduct of on-site 40 assessments; 41 f. known data about the environmental conditions of other properties 42 in the proposed area, ownership of the sites in the proposed area; and 43 g. preliminary descriptions of possible remediation strategies, re-use 44 opportunities, necessary infrastructure improvements and other public or 45 private measures needed to stimulate investment, promote revitalization, 46 and enhance community health and environmental conditions. 47 4. Funding preferences shall be given to proposals for areas having 48 one or more of the following characteristics: 49 a. areas for which the application is a partnered application by a 50 municipality and a community based organization; 51 b. areas with concentrations of brownfield sites; 52 c. areas for which the application demonstrates support from a munici- 53 pality and a community based organization; 54 d. areas showing indicators of economic distress including low resi- 55 dent incomes, high unemployment, high commercial vacancy rates, 56 depressed property values.

S. 2935 29 1 5. The commissioner, upon the receipt of an application from a commu- 2 nity based organization not in cooperation with the local government 3 having jurisdiction over the proposed brownfield redevelopment area, 4 shall request the municipal government to review and state the municipal 5 government's support or lack of support. The municipal government's 6 statement shall be included in the application. 7 6. Each application for assistance shall include, at a minimum, the 8 following: 9 a. a statement of the rationale or relationship between the proposed 10 assistance and the criteria set forth in this section for the evaluation 11 and ranking of assistance applications; 12 b. the processes by which local participation in the development of 13 the application has been sought; 14 c. the process to be carried out under the state assistance including, 15 but not limited to, the goals of and budget for the effort, the work 16 plan and timeline for the attainment of these goals, and the intended 17 process for public participation in the process; 18 d. the manner and extent to which public or governmental agencies with 19 jurisdiction over issues that will be addressed in the data gathering 20 process will be involved in this process; 21 e. for each community based organization which is an applicant or a 22 co-applicant, a description of the relationship between the community 23 based organization and the area that is the subject of the application, 24 its financial and institutional accountability, its experience in 25 conducting and completing planning initiatives and in working with the 26 local government associated with the proposed area. 27 7. Following notification that assistance has been awarded, and prior 28 to disbursement of funds, a contract shall be executed between the 29 department and the applicant. The commissioner shall establish such 30 standard provisions for such contracts as may be necessary to define: 31 applicant's work scope, work schedule, and deliverables; reporting 32 requirements, including but not limited to submission of quarterly 33 fiscal reports on budgeted and actual use of funds expended; and 34 requirements for submission of a final fiscal report. The contract shall 35 also require the distribution of work products to the department, and, 36 for community-based organizations, to the applicant's municipality. 37 Municipal applicants shall be required to make the results publicly 38 available. 39 § 970-s. Designation of brownfield redevelopment area assistance. 1. 40 Application process. a. The commissioner is authorized to and shall in 41 accordance with this article consider proposals submitted by municipal 42 governments or by municipal governments and community based organiza- 43 tions acting in cooperation for the designation of brownfield redevelop- 44 ment areas. Within the limits of appropriations therefor, the commis- 45 sioner is authorized to and shall provide, on a competitive basis, 46 financial assistance to each applicant whose application for designation 47 of brownfield redevelopment assistance grants. 48 b. An application for designation of a brownfield redevelopment area 49 shall include an indication of support from two or more owners of brown- 50 field sites in the proposed brownfield redevelopment area and at least 51 two of such owners shall be owners of different brownfield sites. All 52 residents and property owners in an area proposed for designation as a 53 brownfield redevelopment area shall receive notice in such form and 54 manner as the commissioner shall prescribe. 55 c. No application for designation of an area as a brownfield redevel- 56 opment area pursuant to this article shall be considered unless the

S. 2935 30 1 applicant demonstrates that it has, to the maximum extent feasible, 2 solicited and considered the views of residents of the proposed area, 3 the views of state and local officials elected to represent such resi- 4 dents and the local private organizations representing such residents. 5 2. Application contents. Each application for designation of a brown- 6 field redevelopment area shall, to the extent such information is avail- 7 able at the time such application is made, include: 8 a. the proposed borders of the brownfield redevelopment area; 9 b. the location of each known or suspected brownfield site in the 10 proposed brownfield redevelopment area; 11 c. the identification of strategic sites within the proposed brown- 12 field redevelopment area; 13 d. the type of potential developments anticipated for sites within the 14 brownfield redevelopment area proposed by either the current of the 15 prospective owners of such sites; 16 e. local legislative or regulatory action which may be required to 17 implement a plan for the proposed brownfield redevelopment area; 18 f. priorities for public and private investment in infrastructure, 19 open space, economic development, housing, or community facilities in 20 the proposed brownfield redevelopment area; 21 g. mapping of current and anticipated uses of the properties and 22 groundwater in the area; 23 h. detailed assessments of individual brownfield sites including, 24 where the consent of the site owner has been obtained, the need for 25 conducting on-site assessments; 26 i. known data about the environmental conditions of properties in the 27 proposed area; 28 j. ownership of the sites in the proposed area; 29 k. preliminary descriptions of possible remediation strategies, brown- 30 field redevelopment, necessary infrastructure improvements and other 31 public or private measures needed to stimulate investment, promote revi- 32 talization, and enhance community health and environmental conditions; 33 l. the processes by which local participation in the development of 34 the application has been sought; 35 m. the planning process to be carried out under the state assistance 36 including, but not limited to, the goals of the planning effort, the 37 budget, work plan and timeline for the attainment of these goals, and 38 the intended process for public participation in the planning process; 39 n. the manner and extent to which public or governmental agencies with 40 jurisdiction over issues that will be addressed in the planning process 41 will be involved in the planning; 42 o. the goals and objectives, both short term and long term, for the 43 economic revitalization of the proposed brownfield redevelopment area; 44 and 45 p. the publicly controlled and other developable lands and buildings 46 within the proposed brownfield redevelopment area which are or could be 47 made available for industrial and commercial development. 48 3. Brownfield redevelopment area designation. Brownfield redevelopment 49 area designation process and criteria. 50 4. Brownfield redevelopment area plan certification. a. When the rede- 51 velopment plan is completed, it shall be forwarded by the applicant to 52 the commissioner, who shall either certify the redevelopment plan as in 53 accordance with the decision to designate the brownfield redevelopment 54 area or decline to certify it with recommendations to the applicant of 55 the manner and nature in which the redevelopment plan should be amended.

S. 2935 31 1 b. Once a brownfield redevelopment area plan has been certified by the 2 commissioner, all the properties within the brownfield redevelopment 3 area are eligible for brownfield redevelopment grants. 4 c. No provision of a brownfield redevelopment area plan certified 5 pursuant to this section shall be binding on properties within such 6 areas or on any of the participants in the designation and planning 7 process unless such provision has been lawfully adopted by local ordi- 8 nance or regulation. 9 5. Amendments. Any amendment to the boundaries of a designated brown- 10 field redevelopment area or to the certified redevelopment plan for such 11 area shall be proposed, reviewed, accepted, approved, or certified by 12 the commissioner in the same manner and using the same criteria used for 13 an application to designate a brownfield redevelopment area or brown- 14 field redevelopment certification of a plan for designation of brown- 15 field redevelopment assistance grants. 16 6. Within the limits of appropriations therefor, the commissioner is 17 authorized to provide on a competitive basis, financial assistance to 18 municipalities, to community based organizations, or to municipalities 19 and community based organizations acting in cooperation in a certified 20 brownfield redevelopment area, brownfield redevelopment grants. 21 Brownfield redevelopment grants can be awarded for projects that 22 entail the acquisition, design, construction, reconstruction, rehabili- 23 tation, preservation, development, improvement, research, or education 24 of, or provision of working capital for, a brownfield site. 25 7. State brownfield redevelopment council. a. The council shall 26 consist of seven members: the commissioner, and the commissioner of 27 environmental conservation, and the following officials or their desig- 28 nees; the governor, the majority leader of the senate, the speaker of 29 the assembly, the minority leader of the senate and the minority leader 30 of the assembly. The governor shall appoint the chair. Persons serving 31 as a member of the council pursuant to designation shall serve at the 32 pleasure of the designating authority, without compensation, but shall 33 be entitled to receive reimbursement of reasonable expenses necessarily 34 incurred in the performance of their duties pursuant to the provisions 35 of this title. 36 b. The provisions of section seventy-four of the public officers law 37 shall be applicable to the members of the council in connection with 38 their duties under this article. At any time that a member of the coun- 39 cil has or may have a direct or indirect financial interest in or 40 resulting from the proposed brownfield redevelopment plan or an interest 41 in a property in a brownfield area plan, such member shall not partic- 42 ipate in any discussion or deliberation of the council concerning such 43 land or interest. 44 c. The advisory council shall: 45 (i) advise and make recommendations to the commissioners regarding 46 brownfield redevelopment goals and priorities to ensure a balance of 47 statewide and regional interests in assistance; 48 (ii) have an opportunity to review and make recommendations regarding 49 specific brownfield redevelopment application assistance and brownfield 50 redevelopment area applications proposed for funding; and 51 (iii) have an opportunity to review and make recommendations regarding 52 specific brownfield redevelopment area plans proposed for certification. 53 d. In carrying out its responsibilities pursuant to this section, the 54 council shall take into account the regional and state brownfield rede- 55 velopment priorities and policies.

S. 2935 32 1 § 970-t. State assistance; municipal site remediation revolving funds. 2 1. Definitions. a. "Qualified site" means any inactive hazardous waste 3 disposal site as that term is defined under subdivision two of section 4 27-1301 of the environmental conservation law at which some aspect of an 5 inactive hazardous waste disposal site remedial program as that term is 6 defined under subdivision three of section 27-1301 of the environmental 7 conservation law is being implemented by a small business under a 8 consent order pursuant to title thirteen of article twenty-seven of the 9 environmental conservation law, or any brownfield site as that term is 10 defined under subdivision one of section 27-1401 of the environmental 11 conservation law at which some aspect of a brownfield program as that 12 term is defined under subdivision two of section 27-1401 of the environ- 13 mental conservation law is being implemented by a person under a volun- 14 tary agreement pursuant to title fourteen of article twenty-seven of the 15 environmental conservation law. 16 b. A "commitment document" means, with respect to any inactive hazard- 17 ous waste disposal site as that term is defined under subdivision two of 18 section 27-1301 of the environmental conservation law, a consent order 19 between a small business and the commissioner of environmental conserva- 20 tion or his or her designee pursuant to title thirteen of article twen- 21 ty-seven of the environmental conservation law, or with respect to any 22 brownfield site as that term is defined under subdivision one of section 23 27-1401 of the environmental conservation law, a voluntary agreement 24 between one or more persons and the commissioner of environmental 25 conservation or his or her designee pursuant to title fourteen of arti- 26 cle twenty-seven of the environmental conservation law. 27 c. "Remedial program activities" means any activities to be undertaken 28 at a qualified site in furtherance of some aspect of the remedial 29 program approved by the commissioner of environmental conservation or 30 his or her designee. 31 d. A "municipality" means any county, city, town or village within 32 which all or a portion of a qualified site is located. 33 e. A "small business" means any corporation, partnership, sole 34 proprietorship or individual, including any limited liability company or 35 professional service limited liability company as those terms are 36 defined in subdivisions (m) and (ee) of section one hundred two of the 37 limited liability company law, operating a business for profit which is 38 resident in this state, independently owned and operated, not dominant 39 in its field of operation, and employs not more than two hundred fifty 40 employees, including employees employed in any subsidiary or affiliated 41 corporation. 42 2. The secretary of state is authorized to provide technical assist- 43 ance to any municipality. 44 3. Within the limits of appropriations therefor, the secretary of 45 state is authorized to provide, on a competitive basis, financial 46 assistance in the form of grants to municipalities for use in the 47 capitalization of a local municipal site remediation revolving fund to 48 be administered by such municipality pursuant to this section, including 49 the financing of the state match for any applicable federal capitaliza- 50 tion grants for municipal site remediation revolving funds, as follows: 51 a. Such municipal site remediation revolving fund shall consist of the 52 amount of such grant, any interest collected thereon, and any repayments 53 of principal advanced from the fund or interest thereon received by the 54 municipality, and any other moneys made available to the municipality 55 for such fund from any other source.

S. 2935 33 1 b. The municipality may enter into a contract with a person who has 2 entered into a commitment document for a qualified site located within 3 the municipality to provide a loan to such person upon such terms and 4 conditions as the municipality shall deem reasonable, which terms shall 5 include repayment of all principal and interest, if any, and reimburse- 6 ment of the municipality for all claims arising therefrom. 7 c. The repayment of the interest and principal of any such loan shall, 8 at a minimum, be guaranteed by such person and secured by a collateral 9 security mortgage on the real property of which the qualified site is a 10 part. 11 d. The amount of any such loan shall be up to an amount equal to 12 seventy-five percent of the reasonably estimated costs and expenses of 13 the remedial program activities that the person is obligated to perform 14 at the qualified site under the terms of the commitment document, and 15 such person shall have demonstrated to the municipality the availability 16 of sufficient funds from other sources to finance the cost of the 17 remainder of the reasonably estimated costs and expenses of the remedial 18 program activities that the person is obligated to perform at the quali- 19 fied site under the terms of the commitment document. 20 e. If any other municipal, state or federal funds, whether in the form 21 of a grant or a loan, are made available to such person to perform the 22 same remedial program activities and the total of such funds and such 23 loan exceeds one hundred percent of the then reasonably estimated costs 24 and expenses of the remedial program activities that the person is obli- 25 gated to perform under the terms of the commitment document, such person 26 shall be required to make immediate repayment to the municipal site 27 remediation revolving funds of an amount equal to the sum of the amount 28 that the total of such funds and such loan exceeds one hundred percent 29 of the then reasonably estimated costs and expenses of the remedial 30 program activities plus ten percent of the full amount of the then 31 outstanding loan. A recalculation of the maximum available loan shall be 32 done each time any other municipal, state or federal funds are received 33 by such person. 34 f. Such person shall proceed expeditiously with and complete such 35 remedial program activities in accordance with the commitment documents 36 approved by the commissioner of environmental conservation or his or her 37 designee. 38 g. The moneys held in or credited to the fund shall be expended solely 39 for the purposes set forth in this section, and each payment of princi- 40 pal and interest from such person received by a municipality shall be 41 immediately deposited into the municipal site remediation revolving 42 fund. 43 h. The interest rate on any such loan shall be no more than two 44 percent above the interest rate established for the issuance of general 45 obligation debt of the state of New York immediately before such loan, 46 and the term of the loan shall not exceed by more than one year the date 47 upon which all remedial program activities required to be implemented at 48 the qualified site are complete to the satisfaction of the commissioner 49 of environmental conservation or his or her designee. 50 4. Municipal site remediation revolving fund; criteria. a. Any munici- 51 pality administering a municipal site remediation revolving fund shall 52 determine the eligibility of a person who has entered into a commitment 53 document for a qualified site located within the municipality for a loan 54 under this section based upon the following criteria: (i) the benefit to 55 the environment realized by the expeditious remediation of the qualified 56 site to be subject to such remedial program activities; (ii) the econom-

S. 2935 34 1 ic benefit to the municipality by the expeditious remediation of the 2 qualified site proposed to be subject to such remedial program activ- 3 ities; (iii) the potential opportunity of the qualified site proposed to 4 be subject to such remedial program activities to be used for public 5 recreational purposes; and (iv) the opportunity for other funding sourc- 6 es to be available for the remediation of such qualified site. Highest 7 funding priority shall be granted to qualified sites for which other 8 such funding sources are not available. 9 b. A municipality administering a municipal site remediation revolving 10 fund shall not lend any money to itself nor to any municipal agency, 11 district or public authority. 12 5. After completion of the remedial program activities for which the 13 loan was made, the person who borrowed such funds may use the qualified 14 site for any otherwise lawful purpose or may dispose of it. If such 15 person shall dispose of such qualified site by sale, such person shall 16 immediately upon sale of the qualified site pay back into the municipal 17 site remediation revolving fund an amount of money constituting the 18 amount of loan principal outstanding plus accrued interest, and the 19 collateral security mortgage shall be discharged. 20 6. The municipality administering a municipal site remediation revolv- 21 ing fund shall make all reasonable efforts to recover the full amount of 22 any loan provided under this section through settlement, litigation 23 brought under this section or other statute or under the common law, or 24 through cooperative agreements with other municipalities. Any and all 25 monies recovered or reimbursed pursuant to this subdivision shall be 26 deposited into the municipal site remediation revolving fund. 27 7. A municipality shall have the power and authority to: 28 a. undertake and carry out any project necessary to establish, main- 29 tain and administer a municipal site remediation revolving fund; 30 b. loan money to a person who has entered into a commitment document 31 for a qualified site located within the municipality to fund remedial 32 program activities at such qualified site; 33 c. expend money received from the state pursuant to subdivision two of 34 this section for costs incurred in conjunction with the establishment, 35 maintenance or administration of a municipal site remediation revolving 36 fund; and 37 d. perform such other and further acts as may be necessary, proper or 38 desirable to carry out a project or obligation, duty or function related 39 thereto. 40 § 8. Subdivisions 24, 25 and 26 of section 1281 of the public author- 41 ities law, subdivision 24 as amended by chapter 857 of the laws of 1982, 42 subdivision 25 as amended by chapter 295 of the laws of 1994 and subdi- 43 vision 26 as added by chapter 282 of the laws of 1979, are amended to 44 read as follows: 45 24. "Hazardous waste" shall [mean a waste which appears on the list or 46 satisfies the characteristics promulgated by the commissioner of envi- 47 ronmental conservation pursuant to section 27-0903 of the environmental 48 conservation law and until, but not after, the promulgation of such 49 list, a waste or combination of wastes, which because of its quantity, 50 concentration, or physical, chemical or infectious characteristics may: 51 a. Cause, or significantly contribute to an increase in mortality or 52 an increase in serious irreversible or incapacitating reversible 53 illness; or 54 b. Pose a substantial present or potential hazard to human health or 55 the environment when improperly treated, stored, transported, disposed

S. 2935 35 1 or otherwise managed] have the same meaning as set forth in section 2 27-1301 of the environmental conservation law. 3 25. "Inactive hazardous waste disposal site" shall [mean any area or 4 structure used for the long term storage or final placement of hazardous 5 waste including, but not limited to, dumps, landfills, lagoons and arti- 6 ficial treatment ponds, as to which area or structure no permit or 7 authorization issued by the department of environmental conservation or 8 a federal agency for the disposal of hazardous waste was in effect after 9 the effective date of this title and any inactive area or structure on 10 the National Priorities List established under the authority of 42 11 U.S.C.A. Section 9605] have the same meaning as set forth in section 12 27-1301 of the environmental conservation law. 13 26. "Inactive hazardous waste disposal site remedial program" shall 14 [mean activities undertaken to eliminate, remove, abate, control or 15 monitor health and/or environmental hazards or potential hazards in 16 connection with inactive hazardous waste disposal sites or to treat or 17 dispose of wastes and waste contaminated materials from such sites 18 including, but not limited to, grading, contouring, trenching, grouting, 19 capping, excavation, transporting, incineration, chemical treatment, 20 biological treatment or the construction of leachate collection and 21 treatment facilities] have the same meaning as set forth in section 22 27-1301 of the environmental conservation law. 23 § 9. Section 1389-a of the public health law, as added by chapter 282 24 of the laws of 1979, subdivision 1 as amended by chapter 857 of the laws 25 of 1982 and subdivision 2 as amended by chapter 295 of the laws of 1994, 26 is amended to read as follows: 27 § 1389-a. Definitions. 1. "Hazardous waste" means a [waste which 28 appears on the list or satisfies the characteristics promulgated by the 29 commissioner of environmental conservation pursuant to section 27-0903 30 of the environmental conservation law and until, but not after, the 31 promulgation of such list, or a waste or combination of wastes, which 32 because of its quantity, concentration, or physical, chemical or infec- 33 tious characteristics may: 34 a. Cause, or significantly contribute to an increase in mortality or 35 an increase in serious irreversible or incapacitating reversible 36 illness; or 37 b. Pose a substantial present or potential hazard to human health or 38 the environment when improperly treated, stored, transported, disposed 39 or otherwise managed] hazardous substance as defined in section 27-1301 40 of the environmental conservation law. 41 2. "Inactive hazardous waste disposal site" means [any area or struc- 42 ture used for the long term storage or final placement of hazardous 43 waste including, but not limited to, dumps, landfills, lagoons and arti- 44 ficial treatment ponds, as to which area or structure no permit or 45 authorization issued by the department of environmental conservation or 46 a federal agency for the disposal of hazardous waste was in effect after 47 the effective date of this title and any inactive area or structure on 48 the National Priorities List established under the authority of 42 49 U.S.C.A. Section 9605] an inactive hazardous waste disposal site as that 50 term is defined in section 27-1301 of the environmental conservation 51 law. 52 3. "Inactive hazardous waste disposal site remedial program" means 53 [activities undertaken to eliminate, remove, abate, control or monitor 54 health and/or environmental hazards or potential hazards in connection 55 with inactive hazardous waste disposal sites or to treat or dispose of 56 wastes and waste contaminated materials from such sites including, but

S. 2935 36 1 not limited to, grading, contouring, trenching, grouting, capping, exca- 2 vation, transporting, incineration, chemical treatment, biological 3 treatment or construction of leachate collection and treatment facili- 4 ties] an inactive hazardous waste disposal site remedial program as that 5 term is defined in section 27-1301 of the environmental conservation 6 law. 7 4. "Person" means [an individual, trust, firm, joint stock company, 8 corporation, partnership, association, state, municipality, commission, 9 political subdivision of a state, public benefit corporation or any 10 interstate body] person as that term is defined in section 27-1301 of 11 the environmental conservation law. 12 5. "Waste" means [any garbage, refuse, sludge from a waste treatment 13 plant, water supply treatment plant, or air pollution control facility, 14 and other discarded material, whether or not such material may eventual- 15 ly be used for some other purpose, including solid, liquid, semisolid, 16 or contained gaseous material resulting from industrial, commercial, 17 mining and agricultural operations or from community activities, and 18 source, special nuclear or by-product material as defined in the Atomic 19 Energy Act of 1954, as amended, except as may be provided by existing 20 agreements between the state of New York and the government of the 21 United States, but does not include solid or dissolved material in 22 domestic sewage, or solid or dissolved materials in irrigation return 23 flows or industrial discharges which are point sources subject to 24 permits under article seventeen of the environmental conservation law] 25 waste as that term is defined in section 27-1301 of the environmental 26 conservation law. 27 § 10. Subdivision 4 of section 1389-b of the public health law, as 28 added by chapter 282 of the laws of 1979, is amended to read as follows: 29 4. (a) Any order issued pursuant to subdivision three of this section, 30 other than one issued on consent of the person, shall be issued only 31 after notice and the opportunity for hearing is provided to the persons 32 who may be the subject of such order. The commissioner shall determine 33 which persons are responsible pursuant to said subdivision according to 34 applicable principles of statutory or common law liability. Such persons 35 shall be entitled to raise any statutory or common law defenses at any 36 such hearing and such defenses shall have the same force and effect at 37 such hearings as they would have in a court of law. In the event a hear- 38 ing is held, no order shall be issued by the commissioner under subdivi- 39 sion three of this section until a final decision has been rendered. Any 40 such order shall be reviewable pursuant to article seventy-eight of the 41 civil practice law and rules within thirty days after service of said 42 order. The commissioner may request the participation of the attorney 43 general in such hearings. 44 (b) There shall be no liability under this section for a person other- 45 wise liable who can establish by a preponderance of the evidence that 46 the significant threat to the environment attributable to hazardous 47 waste disposed at an inactive hazardous waste disposal site was caused 48 solely by an act of God; an act of war; or an act or omission of a third 49 party other than an employee or agent of such person, or than one whose 50 act or omission occurs in connection with a contractual relationship, 51 existing directly or indirectly, with such person (except where the sole 52 contractual arrangement arises from a published tariff and acceptance 53 for carriage by a common carrier or rail), if such person establishes by 54 a preponderance of the evidence that such person exercised due care with 55 respect to the hazardous waste concerned, taking into consideration the 56 characteristics of such hazardous waste, in light of all relevant facts

S. 2935 37 1 and circumstances and took precautions against foreseeable acts or omis- 2 sions of any such third party and the consequences that could foresee- 3 ably result from such acts or omissions; or any combination of them. For 4 purposes of this paragraph, the term, "contractual relationship," 5 includes, but is not limited to, land contracts, deeds or other instru- 6 ments transferring title or possession, unless the real property on 7 which the site concerned is located was acquired by such person after 8 the disposal or placement of the hazardous waste on, in, or at such 9 site, and such person establishes one or more of the circumstances 10 described in subparagraph (i), (ii) or (iii) of this paragraph by a 11 preponderance of the evidence: 12 (i) At the time such person acquired the site such person did not know 13 and had no reason to know that any hazardous waste which is the subject 14 of the significant threat determination was disposed of on, in, or at 15 the site. To establish that such person has no reason to know, such 16 person must have undertaken, at the time of acquisition, all appropriate 17 inquiry into the previous ownership and uses of such site consistent 18 with good commercial or customary practice in an effort to minimize 19 liability. For purposes of the preceding sentence, the commissioner 20 shall take into account any specialized knowledge or experience on the 21 part of such person, the relationship of the purchase price to the value 22 of the property if uncontaminated, commonly known or reasonably ascer- 23 tainable information about the property, the obviousness of the presence 24 or likely presence of contamination at the property, and the ability to 25 detect such contamination by appropriate inspection; or 26 (ii) Such person is a government entity which acquired the site by 27 escheat, or through any other involuntary transfer or acquisition; or is 28 a government entity which acquired ownership or control voluntarily 29 through exercise of its eminent domain authority by purchase or condem- 30 nation, provided that the voluntarily acquiring government entity 31 promptly develops and implements for the site a department approved 32 inactive hazardous waste disposal site; or 33 (iii) Such person acquired the site by inheritance or bequest, and 34 that such person exercised due care with respect to the hazardous waste 35 concerned, taking into consideration the characteristics of such hazard- 36 ous waste, in light of all relevant facts and circumstances and took 37 precautions against foreseeable acts or omissions of any such third 38 party and the consequences that could foreseeably result from such acts 39 or omissions. Nothing in this paragraph shall diminish the liability of 40 any previous owner or operator of the site who would otherwise be liable 41 under this section. Notwithstanding this paragraph, if such person 42 obtained actual knowledge of the release or threatened release of a 43 hazardous waste at the site when such person owned the site and then 44 subsequently transferred ownership of the site to another person without 45 disclosing such knowledge, such person shall be treated as a person 46 responsible for the disposal of hazardous waste at the site and no 47 defense under this paragraph shall be available to such person. Nothing 48 in this paragraph shall affect the liability under this section of a 49 person who, by any act or omission, caused or contributed to the release 50 or threatened release of a hazardous waste which is the subject of such 51 proceeding relating to such site. 52 § 11. Section 1389-e of the public health law is REPEALED. 53 § 12. Subdivision 7 of section 56-0101 of the environmental conserva- 54 tion law, as added by chapter 413 of the laws of 1996, is amended to 55 read as follows:

S. 2935 38 1 7. "Environmental restoration project" means a project to investigate 2 or to remediate hazardous [substances located on real property held in 3 title by a municipality,] wastes pursuant to title five of this article. 4 § 13. Section 56-0502 of the environmental conservation law, as added 5 by chapter 413 of the laws of 1996, is amended to read as follows: 6 § 56-0502. Definitions. 7 [For] 1. "Municipality", for purposes of this title ["municipality"], 8 shall have the same meaning as provided in subdivision [twelve] fifteen 9 of section 56-0101 of this article, except that such term shall not 10 refer to a municipality that generated, transported or disposed of, 11 arranged for, or that caused the generation, transportation or disposal 12 of hazardous substance located at real property proposed to be investi- 13 gated or to be remediated under an environmental restoration project. 14 2. "Cost", for purposes of this title, shall have the same meaning as 15 provided in subdivision four of section 56-0101 of this article, except 16 that such term shall not include the requirement to reduce the cost of 17 an approved project in accordance with any federal or state funds for 18 the project received or to be received by the municipality. 19 3. "Environmental restoration investigation project" shall mean a 20 project, undertaken in accordance with the requirements of this title, 21 to investigate hazardous wastes located in, on or emanating from real 22 property either held in title by a municipality or for which fee title 23 may be acquired by a municipality. 24 4. "Environmental restoration remediation project" shall mean a 25 project, undertaken in accordance with the requirements of this title, 26 to remediate hazardous wastes located in, on or emanating from real 27 property held in title by a municipality. 28 § 14. Section 56-0503 of the environmental conservation law, as added 29 by chapter 413 of the laws of 1996, is amended to read as follows: 30 § 56-0503. Environmental restoration projects; state assistance. 31 1. The commissioner may enter into a contract with a municipality to 32 provide state assistance to such municipality to undertake an environ- 33 mental restoration project. The amount of state assistance payment for 34 such project shall be up to an amount of [seventy-five]: 35 (a) ninety percent of the eligible costs of such project, subject to 36 the provisions set forth in paragraph (b) of this subdivision; 37 (b) one hundred percent of the eligible costs of any remediation 38 directed by the department to be undertaken outside the boundaries of 39 the real property that is subject to an environmental restoration 40 project approved by the department. 41 2. In addition to such other terms and conditions that the commis- 42 sioner may deem to be appropriate, such contract shall provide as 43 follows: 44 (a) An estimate of the cost of such project as determined by the 45 commissioner at the time of such contract's execution; 46 (b) An agreement by the commissioner to periodically reimburse the 47 municipality for eligible costs incurred during the progress of such 48 project. Such payments shall be subject to final computation and deter- 49 mination of the total state assistance share of the eligible costs of 50 the entire environmental restoration project; 51 (c) A provision [providing] that if [any federal payments,] responsi- 52 ble party payments[, and/or payments received from the disposition of 53 the real property subject to an environmental restoration project] 54 become available to the municipality, before, during or after the 55 completion of an environmental restoration project, which were not 56 included when the state share was calculated pursuant to this section,

S. 2935 39 1 the state assistance share shall be recalculated unless this payment 2 amounts to no more than ten percent owed by the municipality, and the 3 municipality shall pay to the state, for deposit into the environmental 4 restoration project account of the hazardous waste remedial fund estab- 5 lished under section ninety-seven-b of the state finance law, the 6 difference between the original state assistance payment and the recal- 7 culated state share less the municipality's ten percent share. Recalcu- 8 lation of the state share shall be done each time a [federal payment,] 9 payment from a responsible party[, or payment received from the disposi- 10 tion of such property] is received by the municipality; 11 (d) A provision that if any monies received from [any federal 12 payments, payments from a responsible party, and/or payments received 13 from] the disposition of [such property] the real property subject to an 14 environmental restoration project exceed the municipality's cost of such 15 property, including taxes owed to the municipality upon acquisition, and 16 the municipality's cost of the environmental restoration project, the 17 amount of such excess necessary to reimburse the state of New York for 18 the state assistance provided to the municipality under this title shall 19 be [divided equally between the municipality and the state of New York, 20 the state share of which shall be deposited into the environmental 21 restoration project account of the hazardous waste remedial fund estab- 22 lished under section ninety-seven-b of the state finance law] divided 23 equally between the municipality and the state of New York, the state 24 share shall be deposited into the environmental restoration project 25 account of the hazardous waste remedial fund established under section 26 ninety-seven-b of the state finance law; 27 (e) An agreement by the municipality to proceed expeditiously with 28 and complete such project in accordance with plans approved for payment 29 of the municipality's share of such project's cost; 30 (f) An agreement by the municipality that it shall prepare and imple- 31 ment a public participation plan [prior to remedial activities undertak- 32 en pursuant to this section. The] for environmental restoration projects 33 undertaken pursuant to this title. The requirements of the plan will be 34 governed by decision of the municipality to proceed with remediation of 35 the property under this title. However, in all cases, implementation of 36 the plan shall be completed as part of the project. In those cases where 37 the municipality does not intend to proceed with remediation of the 38 property, the plan shall provide timely and accessible disclosure of the 39 results of the investigation to the interested public. The plan shall 40 provide for adequate public notice of the availability of the investi- 41 gation results; an opportunity for submission of written comments; and a 42 filing of a notice of the results of the investigation as authorized by 43 article nine of the real property law. Where the municipality intends to 44 proceed with remediation of the property under this title, the plan 45 shall provide opportunities for early, inclusive participation prior to 46 the selection of a preferred course of action, facilitate communication, 47 including dialogue among the municipality, the department, and the 48 interested public, and provide timely and accessible disclosure of 49 information. At a minimum, the design of the plan shall take into 50 account the scope and scale of the proposed environmental restoration 51 remediation project, local interest, and other relevant factors. The 52 plan shall also provide for: adequate public notice of the availability 53 of a draft remedial plan; a forty-five day period for submission of 54 written comments; a public hearing on such plan if substantive issues 55 are raised by members of the affected community; and technical assist- 56 ance if so requested by members of the affected community. Provided,

S. 2935 40 1 however, that the requirements of this subdivision shall not apply to 2 interim remedial measures undertaken as part of an environmental resto- 3 ration project [to address emergency site conditions]. In such instance, 4 the department or such persons implementing the interim remedial measure 5 or making the request shall conduct public participation activities as 6 the department deems necessary and appropriate under such circumstances. 7 (g) An agreement by the municipality that it shall put into place any 8 engineering and/or institutional controls (including deed restrictions) 9 that the department may deem necessary to allow the contemplated use to 10 proceed, that such engineering and/or institutional controls shall be 11 binding on such municipality, any successor in title, and any lessees 12 and that any successors in title and any lessees cannot challenge state 13 enforcement of such controls; 14 (h) In the event that such engineering controls and/or institutional 15 controls are necessary the municipality and its successors in title 16 shall agree to develop a plan which ensures that such engineering and/or 17 institutional controls be continually maintained in the manner required 18 by the department. Such plan shall be approved by the department. Fail- 19 ure to implement the plan or maintain such controls shall constitute a 20 violation of such contract and shall terminate for the duration of such 21 failure the protection afforded under subdivision one of section 56-0509 22 of this title; 23 (i) In the event that deed restrictions are required, such munici- 24 pality shall agree to cause such deed restrictions to be recorded and 25 indexed as declarations of restrictions in the office of the recording 26 officer of the county or counties where the real property subject to 27 such environmental restoration project is located in the manner 28 prescribed by article nine of the real property law. Such declaration of 29 restriction shall contain the name of the owner of record of such prop- 30 erty, along with the tax map parcel number or the section, block, and 31 lot number of such property; and 32 (j) A provision that exempts a municipality and any successor in 33 title, lender, or lessee from the requirement to obtain any state or 34 local permit or other authorization for any activity needed to implement 35 [such] a project [that is conducted on the real property subject to such 36 project so long as] to investigate or remediate hazardous substances 37 pursuant to this title, provided that the activity is conducted in a 38 manner which satisfies all substantive technical requirements applicable 39 to like activity conducted pursuant to a permit. 40 § 15. Section 56-0505 of the environmental conservation law, as added 41 by chapter 413 of the laws of 1996, is amended to read as follows: 42 § 56-0505. Environmental restoration projects; criteria. 43 1. The department shall determine the eligibility of an environmental 44 restoration project for state assistance under this title based upon the 45 following criteria: 46 (a) the benefit to the environment realized by the expeditious remedi- 47 ation of the property proposed to be subject to such project; 48 (b) the economic benefit to the state by the expeditious remediation 49 of the property proposed to be subject to such project; and 50 (c) the potential opportunity of the property proposed to be subject 51 to such project to be used for public recreational purposes[; and 52 (d) the opportunity for other funding sources to be available for the 53 remediation of such property, including, but not limited to, enforcement 54 actions against responsible parties (other than the municipality to 55 which state assistance was provided under this title; or a successor in 56 title, lender, or lessee who was not otherwise a responsible party prior

S. 2935 41 1 to such municipality taking title to the property), state assistance 2 payments pursuant to title thirteen of article twenty-seven of this 3 chapter, and the existence of private parties willing to remediate such 4 property using private funding sources. Highest priority shall be grant- 5 ed to projects for which other such funding sources are not available]; 6 and 7 (d) real property in state empire zones, federal empowerment zones or 8 brownfields redevelopment areas pursuant to section nine hundred seven- 9 ty-r of the general municipal law. 10 2. The department shall not enter into a contract with a municipality 11 pursuant to section 56-0503 of this title for an environmental restora- 12 tion project for any site listed in the registry of inactive hazardous 13 waste sites under section 27-1305 of this chapter and given a classi- 14 fication as described in subparagraph one or two of paragraph b of 15 subdivision four of such section 27-1305. 16 3. The remediation objective of an environmental restoration remedi- 17 ation project shall meet the same standard for protection of public 18 health and the environment that applies to remedial actions undertaken 19 pursuant to section 27-1313 of this chapter or preapproved remedies 20 under title fourteen of article twenty-seven of this chapter. 21 4. [After completion of such project, the municipality may use the 22 property for public purposes or may dispose of it. If the municipality 23 shall dispose of such property by sale to a responsible party, such 24 party shall pay to such municipality, in addition to such other consid- 25 eration, an amount of money constituting the amount of state assistance 26 provided to the municipality under this title plus accrued interest and 27 transaction costs and the municipality shall deposit that money into the 28 environmental restoration project account of the hazardous waste remedi- 29 al fund established under section ninety-seven-b of the state finance 30 law] Property may continue to be used for the purpose for which it is 31 being used prior to achievement of the environmental restoration 32 project's objectives if the department determines that the existing 33 state of contamination does not pose a risk sufficient to prohibit such 34 use from continuing, giving due regard to human health and protection, 35 and if the department determines that such use does not interfere with 36 the environmental restoration project. 37 5. In the event that [such] an environmental restoration project's 38 remediation objective shall not have been attained [to the department's 39 satisfaction] based on contemplated use at the time of the munici- 40 pality's disposition of such property, such municipality shall be liable 41 to ensure that such objective is attained within the time called for in 42 the state assistance contract. 43 6. If the municipality shall dispose of property subject to an envi- 44 ronmental restoration project by sale to a responsible party, such party 45 shall pay to such municipality, in addition to such other consideration, 46 an amount of money constituting the amount of state assistance provided 47 to the municipality under this title plus accrued interest and trans- 48 action costs, which the municipality shall then pay to the state for 49 deposit into the environmental restoration project account of the 50 hazardous waste remedial fund established under section ninety-seven-b 51 of the state finance law. 52 § 16. Section 56-0507 of the environmental conservation law, as added 53 by chapter 413 of the laws of 1996, is amended to read as follows: 54 § 56-0507. Recovery of state assistance.

S. 2935 42 1 1. A municipality receiving state assistance under this title under- 2 takes an environmental restoration project as agent of the state with 3 respect to the incurrence of eligible costs. 4 2. The state shall make all reasonable efforts to recover the full 5 amount of any state assistance provided under this title through liti- 6 gation brought under this section or other statute or under the common 7 law, or through cooperative agreements, with responsible parties (other 8 than the municipality to which state assistance was provided under this 9 title; or a successor in title, lender or lessee who was not otherwise a 10 responsible party prior to the municipality taking title to such proper- 11 ty). Notwithstanding any requirement under this section, the state may 12 elect not to recover all or any portion of its costs from a party 13 responsible according to applicable principles of statutory or common 14 law liability where such party's liability arises solely from ownership 15 or operation of the subject property subsequent to the disposal of 16 hazardous wastes at such property. 17 3. Any and all monies recovered or reimbursed pursuant to this section 18 shall be deposited into the environmental restoration project account of 19 the hazardous waste [remediation] remedial fund established under 20 section ninety-seven-b of the state finance law. 21 § 17. Subdivisions 1, 2, 3 and 5 of section 56-0509 of the environ- 22 mental conservation law, as added by chapter 413 of the laws of 1996, 23 are amended to read as follows: 24 1. (a) Notwithstanding any other provision of law and except as 25 provided in subdivision two of this section and in paragraph (h) of 26 subdivision two of section 56-0503 of this title, the following shall 27 not be liable to the state upon any statutory or common law cause of 28 action, or to any person upon any statutory cause of action arising out 29 of the presence of any hazardous substance in or on property at any time 30 before the effective date of a contract entered into pursuant to this 31 title: 32 (i) a municipality receiving state assistance under this title to 33 undertake an environmental restoration project and complying with the 34 terms and conditions of the contract providing such assistance; and 35 (ii) a successor in title to the real property subject to such project 36 where the municipality holds or held title to the real property; any 37 lessee of such property; and any person that provides financing to such 38 party relative to the remediation, restoration, or redevelopment of such 39 property, provided that such successor in title, lessee, or lender did 40 not generate, arrange for, transport, or dispose, and did not cause the 41 generation, arrangement for, transportation, or disposal of any hazard- 42 ous substance located at such property, and did not own such property. 43 (b) Notwithstanding any other provision of this title, any person 44 seeking the benefit of this subdivision shall bear the burden of proving 45 that a cause of action, or any part thereof, is attributable solely to 46 hazardous substances present in or on such parcel before the effective 47 date of such contract. 48 2. [Subdivision one of this section shall not apply to relieve any 49 municipality, successor in title, lessee, or lender from liability aris- 50 ing from:] Any municipality, successor in title, lessee, or lender iden- 51 tified in paragraph (a) of subdivision one of this section shall not 52 receive the liability protections identified in subdivisions one and 53 three of this section where liability results from: 54 (a) failing to implement such project to [the department's satisfac- 55 tion or failing to] comply with the terms and conditions of the 56 contract;

S. 2935 43 1 (b) fraudulently demonstrating that the cleanup levels identified in 2 or to be identified in accordance with such project were reached; 3 (c) causing [the] release or threat of release at the property subject 4 to such project of any hazardous substance after the effective date of 5 such contract; or 6 (d) [changing such property's use from the intended use as identified 7 in the contract pursuant to section 56-0503 to a use requiring a lower 8 level of residual contamination unless the additional remedial activ- 9 ities are undertaken which shall meet the same standard for protection 10 of public health and the environment that applies to remedial actions 11 undertaken pursuant to 27-1313 of this chapter so that such use can be 12 implemented with sufficient protection of public health and the environ- 13 ment.] violating the provisions of section 56-0511 of this title; 14 (e) failing to implement the plan or to implement and maintain the 15 engineering and/or institutional controls required by the department in 16 accordance with paragraph (h) of subdivision two of section 56-0503 of 17 this title; or 18 (f) using property subject to an environmental restoration project in 19 violation of the requirements of this title. 20 3. The state shall indemnify and save harmless any municipality, 21 successor in title, lessee, or lender [indentified] identified in para- 22 graph (a) of subdivision one of this section in the amount of any judg- 23 ment, or settlement, obtained against such municipality, successor in 24 title, lessee or lender in any court for any common law cause of action 25 arising out of the presence of any hazardous substance in or on property 26 at anytime before the effective date of a contract entered into pursuant 27 to this title. Such municipality, successor in title, lessee or lender 28 shall be entitled to representation by the attorney general, unless the 29 attorney general determines, or a court of competent jurisdiction deter- 30 mines, that such representation would constitute a conflict of interest, 31 in which case the attorney general shall certify to the comptroller that 32 such party is entitled to private counsel of its choice, and reasonable 33 attorneys' fees and expenses shall be reimbursed by the state. Any 34 settlement of such an action shall be subject to the approval of the 35 attorney general as to form and amount, and this subdivision shall not 36 apply to any settlement of any such action which has not received such 37 approval. 38 5. In addition to any other powers the department may have, including, 39 but not limited to, the powers set forth in section 56-0517 of this 40 title, the department shall have the authority to periodically inspect 41 [each project site] property to ensure that the use of the property 42 complies with the terms and conditions of [the contract] any engineering 43 and/or institutional controls placed on the property. 44 § 18. Section 56-0511 of the environmental conservation law, as added 45 by chapter 413 of the laws of 1996, is amended to read as follows: 46 § 56-0511. Change of use. 47 1. At least sixty days before the start of physical alteration or 48 construction constituting a change of use at a property investigated or 49 remediated under an environmental restoration project, or at least sixty 50 days before a change of use at such a property not involving any phys- 51 ical alteration or construction, as the case may be, the person or enti- 52 ty proposing to make a change of use shall provide written notification 53 to the department and the clerks of the county and other municipalities 54 in which such property is located. 55 2. No person shall engage in any activity at a property investigated 56 or remediated under an environmental restoration project that is not

S. 2935 44 1 consistent with restrictions placed upon the use of the property, or 2 that will, or that reasonably is anticipated to: prevent or interfere 3 significantly with a proposed, ongoing, or completed project; or expose 4 the public health or the environment to a significantly increased threat 5 of harm or damage [at] from such property. If the commissioner deter- 6 mines that a proposed change of use is prohibited pursuant to this 7 section, he shall, within forty-five days after receipt of the complete 8 notice required by this section, provide the person giving such notice 9 with a written determination that such change of use will not be author- 10 ized, together with the reasons for such determination. 11 3. For the purposes of this section: 12 (i) "change of use" means the transfer of title to all or part of 13 property subject to an environmental restoration [agreement] project, 14 the erection of any structure on such property, [the paving of such 15 property for use as a roadway or parking lot,] and the creation of a 16 park or other public or private recreational facility on such property, 17 or any activity that is likely to disrupt or expose hazardous substances 18 or to increase direct human exposure; or any other conduct that will or 19 may tend to significantly interfere with an ongoing or completed envi- 20 ronmental restoration project. "Change of use" shall not include a 21 transfer of property where physical alteration of the property subject 22 to an environmental restoration project is not contemplated. In the case 23 of title transfers with no physical alteration of property subject to an 24 environmental restoration project, owners of property shall provide 25 notice of proposed transfers of title within a reasonable time in 26 advance of the transfer. 27 (ii) "complete notice" means a notice that adequately apprises the 28 department of the contemplated physical alteration of the property and 29 how such alteration may affect the property's proposed, ongoing, or 30 completed [remediation] project, or of the proposed new owner's ability 31 to implement the engineering and institutional controls associated with 32 the [property's remediation] property. 33 § 19. The environmental conservation law is amended by adding two new 34 sections 56-0513 and 56-0515 to read as follows: 35 § 56-0513. Immunity. 36 Section eight of the court of claims act or any other provision of law 37 to the contrary notwithstanding, the state shall be immune from liabil- 38 ity and action with respect to any act or omission done in the discharge 39 of the department's responsibilities pursuant to this title; provided, 40 however, that this section shall not limit the liability which may 41 otherwise exist for the unlawful, willful or malicious acts or omissions 42 on the part of the state, state agencies, or their officers, employees 43 or agents; or for the ownership or responsibility for the disposal of 44 hazardous wastes according to law. 45 § 56-0515. Permit waivers. 46 The department, by and through the commissioner, shall exempt a person 47 from the requirement to obtain any state or local permit or other 48 authorization for any activity needed to implement a project to investi- 49 gate or remediate hazardous wastes pursuant to this title; provided, 50 that the activity is conducted in a manner which satisfies all substan- 51 tive technical requirements applicable to like activity conducted pursu- 52 ant to a permit. 53 § 20. Subdivision 2 of section 17-1009 of the environmental conserva- 54 tion law, as amended by section 1 of chapter 442 of the laws of 2001, is 55 amended to read as follows:

S. 2935 45 1 2. All owners shall register the facility with the department. The 2 department is authorized to assess a fee according to a schedule based 3 on the size and type of facility, not to exceed [two] five hundred 4 [fifty] dollars per facility. Such fee shall be paid at the time of 5 registration or registration renewal. Registration shall be renewed 6 every five years or whenever title to a facility is transferred, which- 7 ever occurs first. In addition to such registration requirements and 8 pursuant to leak detection requirements set forth in section 17-1005 of 9 this title, notwithstanding any other provision of law, rule or regu- 10 lation, the department shall duly notify the facility owner of the 11 requirement for such owner to perform the required tightness test on a 12 petroleum bulk storage tank no less than forty-five days prior to the 13 date of the test expiration on the tank. All fees collected pursuant to 14 this subdivision shall be deposited in the New York environmental 15 protection and spill compensation fund established pursuant to section 16 one hundred seventy-nine of the navigation law[.]; provided, however, 17 that such fees shall be deposited in the remedial program transfer fund 18 in the fiscal year beginning April first, two thousand three, and for 19 each fiscal year thereafter. The owner must submit, with each applica- 20 tion for registration or registration renewal, a five-year fee as 21 follows: 22 Combined Storage Capacity at Facility 5-Year Fee 23 Greater than 1,000 to 2,000 gallons $100 per facility 24 Greater than 2,000 gallons to $300 per facility 25 less than 5,000 gallons 26 5,000 gallons to less than 27 400,000 gallons $500 per facility 28 The department may waive payment of the registration fee for a facili- 29 ty at which the tanks are to be removed or otherwise permanently taken 30 out of service and the facility is the subject of: 31 (a) An "environmental restoration project", as such term is defined in 32 subdivision seven of section 56-0101 of this chapter, implemented by a 33 municipality, the cost of which is payable in part by the state pursuant 34 to a contract authorized by section 56-0503 of this chapter; 35 (b) An "inactive hazardous waste disposal site remedial program", as 36 such term is defined in subdivision three of section 27-1301 of this 37 chapter, implemented by the department, the cost of which is paid by the 38 state according to statute; 39 (c) A "hazardous waste site remediation project", as such term is 40 defined in subdivision nine of section 52-0101 of this chapter, imple- 41 mented by a municipality, the cost of which is payable in part by the 42 state pursuant to a contract authorized by section 52-0303 of this chap- 43 ter; 44 (d) Any remediation implemented pursuant to an order or agreement with 45 the department by any person who is not responsible for the disposal of 46 hazardous waste or the discharge of petroleum according to applicable 47 principles of statutory or common law liability, or who is liable solely 48 as a result of ownership or operation of the facility subsequent to the 49 disposal of hazardous waste or the discharge of petroleum; or 50 (e) Any "cleanup and removal", as such term is defined in the naviga- 51 tion law, implemented by the department, the cost of which is paid by 52 the state according to statute. 53 § 21. Subdivision 3 and paragraph b of subdivision 4 of section 54 27-0923 of the environmental conservation law, as added by chapter 38 of 55 the laws of 1985, paragraph d of subdivision 3 as added by chapter 512

S. 2935 46 1 of the laws of 1986 and paragraph e of subdivision 3 as added by chapter 2 423 of the laws of 1990, are amended to read as follows: 3 3. a. Notwithstanding any provision of this section to the contrary, 4 no special assessment shall be imposed under this section on the 5 resource recovery of any hazardous waste; provided, however, that any 6 materials remaining from resource recovery which are hazardous wastes 7 and which are subsequently disposed of, treated, or incinerated[,] shall 8 be subject to the special assessments imposed by this section. For 9 purposes of this section, resource recovery shall not include the 10 removal of water from a hazardous waste. 11 b. In the case of a fraction of a ton, the special assessments imposed 12 by this section shall be the same fraction of the amount of such special 13 assessment imposed on a whole ton. 14 c. For the purpose of this section, generation of hazardous waste 15 shall not include retrieval or creation of hazardous waste which must be 16 disposed of due to remediation of an inactive hazardous waste disposal 17 site in New York state as defined in section 27-1301 of this chapter or 18 under an order of or agreement with the department pursuant to title 19 thirteen or title fourteen of this article or under a contract with the 20 department pursuant to title five of article fifty-six of this chapter. 21 d. No portion of the special assessments collected pursuant to this 22 section shall be used for any purpose if such use, under federal law, 23 would preclude the collection of such special assessment. 24 e. Notwithstanding any provision of this section to the contrary, the 25 actual method utilized to dispose of or treat any hazardous waste shall 26 govern the determination of the rate per ton applicable under the 27 special assessments imposed by this section, even if such hazardous 28 waste was designated for removal, removed, stored, or received for 29 disposal or treatment by a method different than the method actually 30 utilized. Where any such special assessment with respect to any hazard- 31 ous waste is reported and paid on the basis of a rate per ton which is 32 greater than the rate per ton applicable to the actual method utilized 33 to dispose of or treat such hazardous waste, the difference between the 34 amount reported and paid and the amount due using the rate per ton 35 applicable to the actual method utilized shall be considered an overpay- 36 ment of such special assessment. The commissioner of taxation and 37 finance shall credit or refund such overpayment in the manner provided 38 and subject to the conditions contained in article twenty-seven of the 39 tax law, as incorporated by subdivision six of this section. 40 b. All moneys collected or received by the department of taxation and 41 finance pursuant to this section shall be deposited daily to the credit 42 of the comptroller with such responsible banks, banking houses, or trust 43 companies as may be designated by the comptroller. Such deposits shall 44 be kept separate and apart from all other moneys in the possession of 45 the comptroller. The comptroller shall require adequate security from 46 all such depositories. Of the revenues collected under this section, the 47 comptroller shall retain in his or her hands such amounts as the commis- 48 sioner of taxation and finance may determine to be necessary for refunds 49 under this section and the comptroller shall pay any refunds to which 50 those liable for special assessments shall be entitled under the 51 provisions of this section. The comptroller, after reserving the amount 52 to pay such refunds, shall, on or before the tenth day of each month, 53 pay all special assessments, interest, and penalties collected under 54 this section and remaining to his or her credit in such banks, banking 55 houses, or trust companies at the close of business on the last day of 56 the preceding month into the [hazardous waste] remedial program transfer

S. 2935 47 1 fund created pursuant to section [ninety-seven-b] ninety-seven-cccc of 2 the state finance law. Within thirty days after each quarterly reporting 3 date, the comptroller shall certify the amount of special assessments 4 under this section deposited in the [hazardous waste] remedial program 5 transfer fund during the preceding quarter and the cumulative amount 6 collected since the start of the current calendar year, and shall submit 7 such certification to the governor and the [chairman] chairperson of the 8 senate finance committee and the [chairman] chairperson of the assembly 9 ways and means committee. 10 § 22. Paragraph b of subdivision 1 of section 71-2725 of the environ- 11 mental conservation law, as amended by chapter 60 of the laws of 1993, 12 is amended to read as follows: 13 b. All penalties and fines collected pursuant to sections 71-2705, 14 71-2721 and 71-2723 of this title shall be paid [into the general fund 15 to the credit of the state purposes account] to the credit of the reme- 16 dial program transfer fund established by section ninety-seven-cccc of 17 the state finance law. 18 § 23. Subdivision 1 of section 316-b of the real property law, as 19 amended by chapter 140 of the laws of 1991, is amended and a new subdi- 20 vision 3 is added to read as follows: 21 1. On and after July first, nineteen hundred ninety-three, each 22 recording officer must provide, at the expense of his county, proper 23 books for making an index of present owners of inactive hazardous waste 24 disposal sites contained in the [annual report] registry required by 25 section 27-1305 of the environmental conservation law. The index shall 26 contain an alphabetical listing of all owners listed in such annual 27 report completed by the department of environmental conservation, 28 together with a reference, for each present owner, to the page and year 29 of the report where information regarding the inactive hazardous waste 30 site may be located. The index shall also contain the tax map parcel 31 number or the section, block and lot number of the site. 32 3. Each recording officer shall record and index such instruments as 33 may be required to be recorded pursuant to title thirteen or fourteen of 34 article twenty-seven of the environmental conservation law, or title 35 five of article fifty-six of the environmental conservation law, or part 36 two of article twelve of the navigation law, or any regulation promul- 37 gated pursuant thereto, or any order or agreement entered into under 38 authority thereof or of any such regulations. 39 § 24. The real property tax law is amended by adding a new section 40 485-i to read as follows: 41 § 485-i. Brownfield site redevelopment exemption. 1. (a) Real property 42 that is the subject of a voluntary agreement pursuant to title fourteen 43 of article twenty-seven of the environmental conservation law, and any 44 improvements made on such property after the date that a request for 45 participation is accepted pursuant to section 27-1405 of the environ- 46 mental conservation law, shall be exempt from taxation and special ad 47 valorem levies by any municipal corporation in which it is located for 48 the period and to the extent herein provided. 49 (b) For the first three years following the acceptance of a request 50 for participation, the amount of such exemption shall be one hundred 51 percent of the "base amount", determined pursuant to subdivision two of 52 this section. In the fourth year the amount shall be seventy-five 53 percent of the base amount, in the fifth year the amount shall be sixty 54 percent of the base amount, and the amount of the exemption shall 55 decline by ten percentage points in each of the next six years resulting

S. 2935 48 1 in an exemption of ten percent of the base amount in the tenth and final 2 year. 3 2. (a) The base amount of the exemption shall be the extent of the 4 increase in assessed value attributable to such construction, alter- 5 ation, installation, remediation or improvement as determined in the 6 initial year for which application for exemption is made pursuant to 7 this section. The base amount shall remain constant for the authorized 8 term of the exemption, subject to the following: 9 (i) if there is subsequent construction, alteration, installation, 10 remediation or improvement during the term of exemption, the base amount 11 shall be revised to include the increase in assessed value attributable 12 to such construction, alteration, installation, remediation or improve- 13 ment. 14 (ii) if a change in level of assessment of fifteen percent or more is 15 certified for an assessment roll pursuant to the rules of the state 16 board, the base amount shall be adjusted by such change in level of 17 assessment. The exemption on that assessment roll shall thereupon be 18 recomputed, notwithstanding the fact that the assessor receives the 19 certification after the completion, verification and filing of the final 20 assessment roll. In the event the assessor does not have custody of the 21 roll when such certification is received, the assessor shall certify the 22 recomputed exemption to the local officers having custody and control of 23 the roll, and such local officers are hereby directed and authorized to 24 enter the recomputed exemption certified by the assessor on the roll. 25 (b) No such exemption shall be granted pursuant to this subdivision 26 concurrent with or subsequent to any other real property tax exemption 27 granted to the same improvements to real property, except, where during 28 the period of such previous exemption, payments in lieu of taxes or 29 other payments were made to the local government in an amount that would 30 have been equal to or greater than the amount of real property taxes 31 that would have been paid on such improvements had such property been 32 granted an exemption pursuant to this section. In such case, an 33 exemption shall be granted for a number of years equal to the ten year 34 exemption granted pursuant to this section less the number of years the 35 property would have been previously exempt from real property taxes. 36 3. Such exemption shall be granted only upon application by the owner 37 of such real property on a form prescribed by the state board. The 38 application shall be filed with the assessor of the assessing unit on or 39 before the appropriate taxable status date of such assessing unit and no 40 later than one year from the date of completion of such construction, 41 alteration, installation, remediation or improvement. 42 4. If the assessor receives a timely and complete application by the 43 owner of the real property, the assessor shall approve the application 44 and such real property shall thereafter be exempt from taxation as here- 45 in provided commencing with the assessment roll prepared after the taxa- 46 ble status date referred to in subdivision three of this section. The 47 assessed value of any exemption granted pursuant to this section shall 48 be entered by the assessor on the assessment roll with the taxable prop- 49 erty, with the amount of the exemption entered in a separate column. 50 5. Such exemption shall only be available if, after a public hearing, 51 the governing board of a county, city, town or village adopts a local 52 law, or a school district, other than a school district subject to arti- 53 cle fifty-two of the education law, adopts a resolution providing that 54 such exemptions shall be given under this section to voluntary agree- 55 ments relating to properties within the municipality. Such local law or 56 resolution may be subsequently repealed; provided, however, that a

S. 2935 49 1 project in the course of construction and exemptions existing prior to 2 such repeal shall not be subject to such repeal. 3 6. If at any time the governing body of the municipality finds that 4 the voluntary agreement has been terminated or that such voluntary 5 agreement is not being materially complied with, the tax exemption shall 6 be terminated. 7 § 25. Subdivisions 1, 2, 3, 6, paragraph (a) of subdivision 12, subdi- 8 visions 13, 14 and 15 of section 97-b of the state finance law, subdivi- 9 sions 1, 2 and paragraph (f) of subdivision 3 as amended and paragraph 10 (g) of subdivision 3 as added by chapter 413 of the laws of 1996, subdi- 11 vision 3 as amended and subdivisions 13, 14 and 15 as added by chapter 12 512 of the laws of 1986, paragraph (e) of subdivision 3 as amended by 13 chapter 9 of the laws of 1994, subdivision 6 as amended by chapter 38 of 14 the laws of 1985, paragraph (a) of subdivision 12 as amended by section 15 13 of part C of chapter 389 of the laws of 1997, are amended and three 16 new subdivisions 15, 16 and 17 are added to read as follows: 17 1. There is hereby established in the custody of the state comptroller 18 a nonlapsing revolving fund to be known as the "hazardous waste remedial 19 fund", which shall consist of a "site investigation and construction 20 account" [and], an "industry fee transfer account[," and]", an "environ- 21 mental restoration project account", and a "hazardous waste cleanup 22 account". 23 2. Such fund shall consist of all of the following: 24 (a) all moneys [appropriated for transfer] transferred to the fund's 25 site investigation and construction account; (b) all fines and other 26 sums accumulated in the fund prior to April first, nineteen hundred 27 eighty-eight pursuant to section 71-2725 of the environmental conserva- 28 tion law for deposit in the fund's site investigation and construction 29 account; (c) [all moneys collected or received by the department of 30 taxation and finance pursuant to section 27-0923 of the environmental 31 conservation law for deposit in the fund's industry fee transfer 32 account; (d) all moneys paid into the fund pursuant to section 72-0201 33 of the environmental conservation law which shall be deposited in the 34 fund's industry fee transfer account; (e)] all moneys paid into the fund 35 pursuant to section one hundred eighty-six of the navigation law which 36 shall be deposited in the fund's industry fee transfer account; [(f)] 37 (d) all moneys paid into the fund by municipalities for repayment of 38 landfill closure loans made pursuant to former title five of article 39 fifty-two of the environmental conservation law for deposit in the 40 fund's site investigation and construction account; [(g)] (e) all monies 41 recovered under [section] sections 56-0503, 56-0505 and 56-0507 of the 42 environmental conservation law for deposit into the fund's environmental 43 restoration project account; [and (h)] (f) all monies transferred from 44 the remedial program transfer fund, created pursuant to subdivision five 45 of section ninety-seven-cccc of this chapter, for deposit into the 46 fund's hazardous waste cleanup account; and (g) other moneys credited or 47 transferred thereto from any other fund or source for deposit in the 48 fund's site investigation and construction account. 49 3. Moneys of the hazardous waste remedial fund, except monies in the 50 industry fee transfer account, when allocated, shall be available to 51 [the department of environmental conservation] all state departments and 52 agencies for the following purposes: 53 (a) inactive hazardous waste disposal site remedial programs pursuant 54 to section 27-1313 of the environmental conservation law and section 55 thirteen hundred eighty-nine-b of the public health law;

S. 2935 50 1 (b) cleaning up or restoring to its original state any area where 2 hazardous wastes were disposed of or possessed unlawfully in violation 3 of article twenty-seven of the environmental conservation law. For the 4 purposes of this section "the original state of the area" shall mean the 5 reasonably ascertainable condition of the property immediately prior to 6 the unlawful disposal or, if it is impracticable to determine such 7 condition, then it is the reasonable environmentally sound condition of 8 the area; 9 (c) inactive hazardous waste site identification, classification, and 10 investigation actions including testing, analyses, record searches, and 11 other expenditures necessary to develop the state inactive hazardous 12 waste disposal site remedial plan required pursuant to section 27-1305 13 of the environmental conservation law; 14 (d) financing the non-federal share of the cost of clean up[,] and 15 site remediation activities, as well as post-closure operation and main- 16 tenance costs, pursuant to the federal Comprehensive Environmental 17 Response, Compensation and Liability Act of 1980; 18 (e) emergency response action to clean up spills or abate other public 19 health or environmental hazards involving hazardous wastes, except those 20 provided for under the New York state environmental protection and spill 21 compensation fund; 22 (f) [the study of hazardous substance waste disposal sites pursuant to 23 section 27-1316 of the environmental conservation law and section one 24 thousand three hundred eighty-nine-e of the public health law; and 25 (g)] to undertake such remedial measures as the department of environ- 26 mental conservation may determine necessary due to environmental condi- 27 tions related to the property subject to an agreement to provide state 28 assistance under title five of article fifty-six of the environmental 29 conservation law that were unknown to such department at the time of its 30 approval of such agreement which indicates that conditions on such prop- 31 erty are not sufficiently protective of human health for its reasonably 32 anticipated uses or due to information received, in whole or in part, 33 after such department's approval of such agreement's final engineering 34 report and certification, which indicates that such agreement's remedial 35 activities are not sufficiently protective of human health for such 36 property's reasonably anticipated uses; and, respecting the monies in 37 the environmental restoration project account in excess of ten million 38 dollars, shall provide state assistance under title five of article 39 fifty-six of the environmental conservation law; 40 (g) with respect to moneys in the hazardous waste cleanup account, to 41 pay the reasonable costs incurred by the state in negotiating and over- 42 seeing implementation of voluntary agreements and conducting remediation 43 under title fourteen of article twenty-seven of the environmental 44 conservation law; and 45 (h) with respect to moneys in the hazardous waste cleanup account, to 46 provide state assistance pursuant to section nine hundred seventy-r of 47 the general municipal law. 48 6. The commissioner of the department of environmental conservation 49 shall make all reasonable efforts to recover the full amount of any 50 funds expended from the fund pursuant to paragraph (a) of subdivision 51 three of this section through litigation or cooperative agreements with 52 responsible persons. Any and all moneys recovered or reimbursed pursuant 53 to this section through voluntary agreements or court orders shall be 54 deposited with the comptroller and credited to the account of such fund 55 from which such expenditures were made; provided, however, that any 56 moneys recovered or reimbursed for funds expended from the hazardous

S. 2935 51 1 waste cleanup account shall be deposited in the remedial program trans- 2 fer fund. 3 (a) The comptroller shall, on July first, nineteen hundred eighty- 4 eight and on each succeeding July first until such time as the 5 surcharges required pursuant to subdivision [fourteen] thirteen of this 6 section are imposed, estimate the amount of revenues to be received by 7 the industry fee transfer account of this fund in the next succeeding 8 twenty months and the transfers which will be required to be made during 9 the same period. When calculating the estimate of industry fee transfer 10 account revenues available for the purpose of certifying, pursuant to 11 this subdivision, when such account's balance will be insufficient to 12 make the transfer required by subdivision eleven of this section, the 13 comptroller shall add to the amount estimated to actually be available 14 an additional credit factor as determined by paragraph (b) of this 15 subdivision. If the comptroller determines that the industry fee trans- 16 fer account will, at any time during the succeeding twenty month period, 17 lack sufficient funds to make the transfer required by subdivision elev- 18 en of this section, the comptroller shall so certify to the [state super 19 fund management board, created pursuant to section 27-1319 of the envi- 20 ronmental conservation law, and to the] governor and the legislature. 21 13. [Upon the receipt of a certification provided pursuant to subdivi- 22 sion twelve of this section, the state superfund management board shall 23 review and analyze the historical pattern of revenue received by the 24 industry fee transfer account and the long term projection of future 25 transfers from such account, and shall report on or before December 26 first of such year to the governor and the legislature its recommenda- 27 tions, if any, as to the sources of additional revenues which could be 28 used to supplement the revenues to be received by such fund in order to 29 achieve the equal sharing of debt service costs as implemented in subdi- 30 vision nine of this section. 31 14.] In the absence of further direction by law, effective April first 32 of the fiscal year immediately following the certification by the comp- 33 troller made pursuant to subdivision twelve of this section, surcharges 34 in the following amount shall be imposed: (a) twenty-five percent of the 35 fees imposed by sections 72-0402 and 72-0502 of the environmental 36 conservation law. Notwithstanding any other provision of law to the 37 contrary, moneys collected from such surcharge shall be deposited in 38 their entirety to the industry fee transfer account established pursuant 39 to subdivision one of this section; (b) fifty percent of the fees 40 imposed by section 27-0923 of the environmental conservation law, except 41 for those fees contained in paragraphs b and c of subdivision one, and 42 paragraph b of subdivision two of such section, which shall be exempt 43 from such surcharge. Moneys collected from such surcharge shall be 44 deposited to the industry fee transfer account established pursuant to 45 subdivision one of this section. 46 [15.] 14. On and after the date of such certification, the comptroller 47 shall maintain records with respect to such account to reflect each 48 unpaid transfer for the period during which it is unpaid. On and after 49 such date, any deposits in the industry fee transfer account shall be 50 immediately transferred to the general fund of the state until an amount 51 equal to the total of any unpaid transfers and accumulated interest 52 shall have been transferred to the general fund. 53 15. The comptroller shall, on the first day of July succeeding the 54 state fiscal year during which the bonds and notes issued under the 55 environmental quality bond act of nineteen hundred eighty-six to finance 56 the cleanup of inactive hazardous waste disposal sites in aggregate

S. 2935 52 1 exceed ninety-five percent of the amount authorized pursuant to such 2 bond act, estimate the total debt service of such bonds and notes. The 3 comptroller shall also estimate the state fiscal year in which the sum 4 of the transfers required by subdivision eleven of this section and the 5 additional credit factor as determined by paragraph (b) of subdivision 6 twelve of this section exceeds fifty percent of the estimated debt 7 service for such bonds and notes. The comptroller shall certify to the 8 governor and the legislature the estimated state fiscal year when fifty 9 percent of such estimated debt service will be exceeded. 10 16. Notwithstanding any law to the contrary, effective April first of 11 the state fiscal year succeeding the state fiscal year certified in 12 subdivision fifteen of this section, all moneys currently deposited in 13 the industry fee transfer account of the hazardous waste remedial fund 14 pursuant to subdivision two of this section shall be deposited in the 15 remedial program transfer fund. Further, effective April first of the 16 state fiscal year following such certification, subdivisions thirteen 17 and fourteen of this section shall be deemed repealed. 18 17. Notwithstanding any law to the contrary, and in accordance with 19 section four of this chapter, the comptroller is hereby authorized and 20 directed, upon the request of the director of the budget, to transfer 21 moneys from the site investigation and construction account of the 22 hazardous waste remedial fund to the hazardous waste cleanup account of 23 the hazardous waste remedial fund. 24 § 26. The state finance law is amended by adding a new section 97-cccc 25 to read as follows: 26 § 97-cccc. Remedial program transfer fund. 1. There is hereby estab- 27 lished in the joint custody of the comptroller and the commissioner of 28 taxation and finance a special fund to be known as the "remedial program 29 transfer fund". 30 2. Such fund shall consist of all of the following: 31 (a) registration fees collected pursuant to subdivision two of section 32 17-1009 of the environmental conservation law for deposit in this fund; 33 (b) all license fees, fines, and penalties collected pursuant to para- 34 graph (b) of subdivision one and paragraph (a) of subdivision four of 35 section one hundred seventy-four of the navigation law, penalties 36 collected pursuant to paragraphs (b) and (c) of subdivision four of 37 section one hundred seventy-four-a of the navigation law, moneys 38 collected pursuant to section one hundred eighty-seven of the navigation 39 law, and all penalties collected pursuant to section one hundred nine- 40 ty-two of the navigation law; 41 (c) all penalties collected pursuant to paragraph (c) of subdivision 42 one and paragraph (b) of subdivision four of section one hundred seven- 43 ty-four of the navigation law effective April first of the state fiscal 44 year succeeding the state fiscal year certified in subdivision sixteen 45 of section ninety-seven-b of this article; 46 (d) moneys recovered pursuant to subdivision six of section ninety- 47 seven-b of this article for deposit in this fund; 48 (e) all fees paid into the fund pursuant to paragraph b of subdivision 49 one of section 72-0201 of the environmental conservation law; 50 (f) all moneys collected or received by the department of taxation and 51 finance pursuant to section 27-0923 of the environmental conservation 52 law; 53 (g) all moneys paid into the fund pursuant to subdivision seventeen of 54 section ninety-seven-b of this article; 55 (h) all fees paid into the fund pursuant to section 72-0403 of the 56 environmental conservation law;

S. 2935 53 1 (i) all moneys paid into the fund pursuant to section 27-1415 of the 2 environmental conservation law; 3 (j) other moneys credited or transferred thereto from any other fund 4 or source for deposit in the fund; 5 (k) all interest accrued on any such moneys deposited into the fund; 6 and 7 (l) all moneys paid pursuant to subdivision one of section one hundred 8 eighty-one of the navigation law. 9 3. Notwithstanding any law to the contrary, and in accordance with 10 section four of this chapter, the comptroller is hereby authorized and 11 directed, upon the request of the director of the budget, for each state 12 fiscal year to transfer from the general fund to this fund up to an 13 amount equivalent to the projected amount of moneys to be deposited or 14 transferred into this fund pursuant to paragraphs (a), (b), (c), (d), 15 (e), (f), (g), (h), (i), and (l) of subdivision two of this section for 16 each such state fiscal year. 17 4. Revenues in the remedial program transfer fund shall be kept sepa- 18 rate and shall not be commingled with any other moneys in the custody of 19 the comptroller. All deposits of such revenues shall, if required by the 20 comptroller, be secured by obligations of the United States or of the 21 state having a market value equal at all times to the amount of such 22 deposits, and all banks and trust companies are authorized to give secu- 23 rity for such deposits. Any such revenues in such fund may, upon the 24 discretion of the comptroller, be invested in obligations in which the 25 comptroller is authorized to invest pursuant to section ninety-eight of 26 this article. 27 5. Notwithstanding any law to the contrary, and in accordance with 28 section four of this chapter, the comptroller is hereby authorized and 29 directed, upon the request of the director of the budget, to transfer 30 moneys deposited in the remedial program transfer fund, and interest 31 accrued thereon, to the environmental protection and oil spill compen- 32 sation fund or to the hazardous waste cleanup account of the hazardous 33 waste remedial fund. 34 § 27. Subdivision 3 of section 362 of chapter 83 of the laws of 1995 35 amending the state finance law and other laws relating to bonds, notes 36 and revenues, as amended by section 2 of part E of chapter 413 of the 37 laws of 1999, is amended to read as follows: 38 3. Sections fifteen through seventeen of this act shall take effect 39 immediately and shall be deemed to have been in full force and effect on 40 and after April 1, 1995[, and shall expire and be deemed repealed April 41 1, 2004]; 42 § 28. The environmental conservation law is amended by adding a new 43 section 72-0403 to read as follows: 44 § 72-0403. Remedial program surcharges. 45 1. All generators shall submit annually to the department a fee in the 46 amount to be determined as follows: 47 a. 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 b. 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 c. 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;

S. 2935 54 1 d. 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 e. 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 f. 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 g. 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 h. 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 i. 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 j. 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 k. Three hundred sixty thousand dollars for generators of greater than 23 ten thousand tons per year of hazardous waste; or 24 1. 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 2. No fee shall be payable for waste resulting from services which are 29 provided: 30 a. under a contract with the department, or with the department's 31 approval and in compliance with departmental regulations, or pursuant to 32 an order of the department, the United States environmental protection 33 agency, or a court related to the cleanup or remediation of a hazardous 34 materials or hazardous waste spill, discharge, or surficial cleanup, 35 pursuant to this chapter, other than section 27-1313 of this chapter or 36 a removal action pursuant to the Comprehensive Environmental Response, 37 Compensation and Liability Act (42 U.S.C. 9601 et seq.); or 38 b. under a contract for, or with the department's approval and in 39 compliance with departmental regulations for, the cleanup and removal of 40 a petroleum spill or discharge, pursuant to subdivision seven of section 41 one hundred seventy-six of the navigation law; or 42 c. under the order of a court, the department, or the department of 43 health, or the United States environmental protection agency related to 44 an inactive hazardous waste disposal site pursuant to section 27-1313 of 45 this chapter, section thirteen hundred eighty-nine-b of the public 46 health law, or the Comprehensive Environmental Response, Compensation 47 and Liability Act (42 U.S.C. 9601 et seq.); or 48 d. voluntarily and without expectation of monetary compensation in 49 accordance with subdivision one of section 27-1321 of this chapter; or 50 e. under permit or order requiring corrective action pursuant to title 51 nine of article twenty-seven of this chapter or the Resource Conserva- 52 tion and Recovery Act (42 U.S.C. 6901 et seq.). 53 3. In any case where a generator recycles more than ninety percent of 54 the amount of hazardous waste or hazardous wastewater it produces in any 55 year, or if it produces both hazardous waste and hazardous wastewater, 56 in any case where in any year it recycles more than ninety percent of

S. 2935 55 1 the amount of hazardous waste or hazardous wastewater upon which a reme- 2 dial program surcharge fee is to be imposed, as certified to the commis- 3 sioner, any such remedial program surcharge fee imposed or to be imposed 4 in such case shall be determined based upon the net amount of hazardous 5 waste or hazardous wastewater generated which is not so recycled in such 6 year, rather than upon the gross amount of hazardous waste or hazardous 7 wastewater, or both, generated in such year. 8 § 29. The tax law is amended by adding a new section 21 to read as 9 follows: 10 § 21. Brownfield redevelopment tax credit. (a) Allowance of credit. 11 (1) General. A taxpayer subject to tax under article nine, nine-A, twen- 12 ty-two, thirty-two or thirty-three of this chapter shall be allowed a 13 credit against such tax, pursuant to the provisions referenced in subdi- 14 vision (e) of this section. Such credit shall be allowed with respect to 15 a qualified site, as such term is defined in paragraph one of subdivi- 16 sion (b) of this section. The amount of the credit shall be the sum of 17 the credit components specified in paragraphs two, three and four of 18 this subdivision. 19 (2) Site preparation credit component. The site preparation credit 20 component shall be equal to the applicable percentage of the site prepa- 21 ration costs paid or incurred by the taxpayer with respect to a quali- 22 fied site. The credit component amount so determined with respect to a 23 site's qualification for a remediation certificate shall be allowed for 24 the taxable year in which the effective date of the remediation certif- 25 icate occurs. The credit component amount determined other than with 26 respect to such qualification shall be allowed for the taxable year in 27 which the improvement to which the applicable costs apply is placed in 28 service for up to five taxable years after the issuance of such remedi- 29 ation certificate. 30 (3) Tangible property credit component. The tangible property credit 31 component shall be equal to the applicable percentage of the cost or 32 other basis for federal income tax purposes of tangible personal proper- 33 ty and other tangible property, including buildings and structural 34 components of buildings, which constitute qualified tangible property. 35 The credit component amount so determined shall be allowed for the taxa- 36 ble year in which such qualified tangible property is placed in service 37 on a qualified site with respect to which a remediation certificate has 38 been issued to the taxpayer for up to ten taxable years after the date 39 of the issuance of such remediation certificate. The tangible property 40 credit component shall be allowed with respect to property leased to a 41 second party only if such second party is either (i) not a party respon- 42 sible for the disposal of hazardous waste or the discharge of petroleum 43 at the site according to applicable principles of statutory or common 44 law liability, or (ii) a party responsible according to applicable prin- 45 ciples of statutory or common law liability if such party's liability 46 arises solely from operation of the site subsequent to the disposal of 47 hazardous waste or the discharge of petroleum, and is so certified by 48 the commissioner of environmental conservation at the request of the 49 taxpayer, pursuant to section 27-1413 of the environmental conservation 50 law. Notwithstanding any other provision of law to the contrary, in the 51 case of allowance of credit under this section to such a lessor, the 52 commissioner shall have the authority to reveal to such lessor any 53 information, with respect to the issue of qualified use of property by 54 the lessee, which is the basis for the denial in whole or in part, or 55 for the recapture, of the credit claimed by such lessor.

S. 2935 56 1 (4) On-site groundwater remediation credit component. The on-site 2 groundwater remediation credit component shall be equal to the applica- 3 ble percentage of the on-site groundwater remediation costs paid or 4 incurred by the taxpayer with respect to a qualified site (to the extent 5 that such groundwater remediation costs are not included in the determi- 6 nation of the site preparation credit or the cost or other basis 7 included in the determination of the tangible property credit). The 8 credit component so determined for costs incurred and paid with respect 9 to and prior to the issuance of a remedial certificate shall be allowed 10 for the taxable year in which the effective date of the issuance of a 11 remediation certificate occurs. The credit component amount determined 12 in taxable years after the effective date of the issuance of a remedi- 13 ation certificate shall be allowed in the taxable year such qualified 14 costs are incurred and paid for up to five taxable years after the issu- 15 ance of such remediation certificate. 16 (5) Applicable percentage. For purposes of paragraphs two, three and 17 four of this subdivision, the applicable percentage shall be twelve 18 percent in the case of credits claimed under article nine, nine-A, thir- 19 ty-two or thirty-three of this chapter, and ten percent in the case of 20 credits claimed under article twenty-two of this chapter. Provided, 21 however, as afforded in section 27-1413 of the environmental conserva- 22 tion law, if the remediation certificate indicates that the qualified 23 site has been remediated to track 1 as that term is described in subdi- 24 vision one of section 27-1429 of the environmental conservation law, the 25 applicable percentage shall be fourteen percent in the case of credits 26 claimed under article nine, nine-A, thirty-two, or thirty-three of this 27 chapter, and twelve percent in the case of credits claimed under article 28 twenty-two of this chapter. 29 (b) Definitions. As used in this section, the following terms shall 30 have the following meanings: 31 (1) Qualified site. A "qualified site" is a site with respect to which 32 a remediation certificate has been issued to the taxpayer by the commis- 33 sioner of environmental conservation pursuant to section 27-1413 of the 34 environmental conservation law. 35 (2) Site preparation costs. The term "site preparation costs" shall 36 mean all amounts properly chargeable to a capital account, under gener- 37 ally accepted accounting principles, (i) which are paid or incurred in 38 connection with a site's qualification for a remediation certificate, 39 and (ii) all other site preparation costs paid or incurred in connection 40 with preparing a site for the erection of a building or a component of a 41 building, or otherwise to establish a site as usable for its industrial, 42 commercial (including the commercial development of residential hous- 43 ing), recreational or conservation purposes. Site preparation costs 44 shall include, but not be limited to, the costs of excavation, temporary 45 electric wiring, scaffolding, demolition costs, and the costs of fencing 46 and security facilities. Site preparation costs shall not include the 47 cost of acquiring the site and shall not include amounts included in the 48 cost or other basis for federal income tax purposes of qualified tangi- 49 ble property, as described in paragraph three of this subdivision. 50 (3) Qualified tangible property. "Qualified tangible property" is 51 property which: 52 (A) is depreciable pursuant to section one hundred sixty-seven of the 53 internal revenue code, 54 (B) has a useful life of four years or more, 55 (C) has been acquired by purchase as defined in section one hundred 56 seventy-nine (d) of the internal revenue code,

S. 2935 57 1 (D) has a situs on a qualified site in this state, 2 (E) is principally used by the taxpayer for industrial, commercial, 3 recreational or environmental conservation purposes (including the 4 commercial development of residential housing), and 5 (F) is placed in service within three years following the issuance of 6 a remediation certificate with respect to such qualified site. 7 (4) On-site groundwater remediation costs. All amounts properly 8 chargeable to a capital account, under generally accepted accounting 9 principles, which are paid or incurred in connection with the remedi- 10 ation of on-site groundwater contamination and incurred to implement a 11 requirement of the remediation work plan for a qualified site which is 12 imposed pursuant to subdivision two of section 27-1407 of the environ- 13 mental conservation law. 14 (5) Remediation certificate. The term "remediation certificate" shall 15 refer to the certificate so denominated which is issued by the commis- 16 sioner of environmental conservation pursuant to section 27-1413 of the 17 environmental conservation law. 18 (c) Qualifying property. Property which qualifies for the credit 19 provided for under this section and also for a credit provided for (1) 20 under either subdivision twelve or subdivision twelve-B of section two 21 hundred ten of this chapter, or both, (2) subsection (a) or subsection 22 (j) of section six hundred six of this chapter, or both, (3) the credit 23 provided for under subsection (i) of section fourteen hundred fifty-six 24 of this chapter, or (4) the credit provided under subdivision (q) of 25 section fifteen hundred eleven of this chapter may be the basis for 26 either the credit provided for under this section or one of the credits 27 enumerated in paragraph one, two or three of this subdivision, but not 28 both. 29 (d) Depreciable property. (1) With respect to qualified tangible 30 property which is depreciable pursuant to section one hundred sixty-sev- 31 en of the internal revenue code but is not subject to the provisions of 32 section one hundred sixty-eight of such code and which is disposed of or 33 ceases to be in qualified use prior to the end of the taxable year in 34 which the credit is to be taken, the amount of the credit shall be that 35 portion of the credit provided for in this subdivision which represents 36 the ratio which the months of qualified use bear to the months of useful 37 life. If property on which credit has been taken is disposed of or ceas- 38 es to be in qualified use prior to the end of its useful life, the 39 difference between the credit taken and the credit allowed for actual 40 use must be added back in the year of disposition. Provided, however, if 41 such property is disposed of or ceases to be in qualified use after it 42 has been in qualified use for more than twelve consecutive years, it 43 shall not be necessary to add back the credit as provided in this para- 44 graph. The amount of credit allowed for actual use shall be determined 45 by multiplying the original credit by the ratio which the months of 46 qualified use bear to the months of useful life. For purposes of this 47 paragraph, the useful life of property shall be the same as the taxpayer 48 uses for depreciation purposes when computing its federal income tax 49 liability. 50 (2) Except with respect to that property to which paragraph four of 51 this subdivision applies, with respect to qualified tangible property 52 which is three-year property, as defined in subsection (e) of section 53 one hundred sixty-eight of the internal revenue code, which is disposed 54 of or ceases to be in qualified use prior to the end of the taxable year 55 in which the credit is to be taken, the amount of the credit shall be 56 that portion of the credit provided for in this section which represents

S. 2935 58 1 the ratio which the months of qualified use bear to thirty-six. If prop- 2 erty on which credit has been taken is disposed of or ceases to be in 3 qualified use prior to the end of thirty-six months, the difference 4 between the credit taken and the credit allowed for actual use must be 5 added back in the year of disposition. The amount of credit allowed for 6 actual use shall be determined by multiplying the original credit by the 7 ratio which the months of qualified use bear to thirty-six. 8 (3) Except with respect to that property to which paragraph four of 9 this subdivision applies, with respect to qualified tangible property 10 which is subject to the provisions of section one hundred sixty-eight of 11 the internal revenue code other than three-year property as defined in 12 subsection (e) of such section one hundred sixty-eight which is disposed 13 of or ceases to be in qualified use prior to the end of the taxable year 14 in which the credit is to be taken, the amount of the credit shall be 15 that portion of the credit provided for in this section which represents 16 the ratio which the months of qualified use bear to sixty. If property 17 on which credit has been taken is disposed of or ceases to be in quali- 18 fied use prior to the end of sixty months, the difference between the 19 credit taken and the credit allowed for actual use must be added back in 20 the year of disposition. The amount of credit allowed for actual use 21 shall be determined by multiplying the original credit by the ratio 22 which the months of qualified use bear to sixty. 23 (4) With respect to any qualified tangible property to which section 24 one hundred sixty-eight of the internal revenue code applies, which is a 25 building or a structural component of a building and which is disposed 26 of or ceases to be in qualified use prior to the end of the taxable year 27 in which the credit is to be taken, the amount of the credit shall be 28 that portion of the credit provided for in this section which represents 29 the ratio which the months of qualified use bear to the total number of 30 months over which the taxpayer chooses to deduct the property under the 31 internal revenue code. If property on which credit has been taken is 32 disposed of or ceases to be in qualified use prior to the end of the 33 period over which the taxpayer chooses to deduct the property under the 34 internal revenue code, the difference between the credit taken and the 35 credit allowed for actual use must be added back in the year of disposi- 36 tion. Provided, however, if such property is disposed of or ceases to 37 be in qualified use after it has been in qualified use for more than 38 twelve consecutive years, it shall not be necessary to add back the 39 credit as provided in this paragraph. The amount of credit allowed for 40 actual use shall be determined by multiplying the original credit by the 41 ratio which the months of qualified use bear to the total number of 42 months over which the taxpayer chooses to deduct the property under the 43 internal revenue code. 44 (e) Cross-references. For application of the credit provided for in 45 this section, see the following provisions of this chapter: 46 (1) Article 9: Section 187-g 47 (2) Article 9-A: Section 210, subdivision 33 48 (3) Article 22: Section 606, subsections (i) and (dd) 49 (4) Article 32: Section 1456, subsection (q) 50 (5) Article 33: Section 1511, subdivision (u). 51 § 30. The tax law is amended by adding a new section 187-g to read as 52 follows: 53 § 187-g. Brownfield redevelopment tax credit. 1. Allowance of credit. 54 A taxpayer shall be allowed a credit, to be computed as provided in 55 section twenty-one of this chapter, against the taxes imposed by 56 sections one hundred eighty-three, one hundred eighty-four and one

S. 2935 59 1 hundred eighty-five of this article. Provided, however, that the amount 2 of such credit allowable against the tax imposed by section one hundred 3 eighty-four of this article shall be the excess of the amount of such 4 credit over the amount of any credit allowed by this section against the 5 tax imposed by section one hundred eighty-three of this article. 6 2. Application of credit. In no event shall the credit under this 7 section be allowed in an amount which will reduce the tax payable to 8 less than the applicable minimum tax fixed by section one hundred eight- 9 y-three or one hundred eighty-five of this article. If, however, the 10 amount of credit allowable under this section for any taxable year 11 reduces the tax to such amount, any amount of credit not deductible in 12 such taxable year shall be treated as an overpayment of tax to be 13 refunded in accordance with the provisions of section ten hundred eight- 14 y-six of this chapter. Provided, however, the provisions of subsection 15 (c) of section ten hundred eighty-eight of this chapter notwithstanding, 16 no interest shall be paid thereon. Any such credit not refunded during 17 such taxable year may be carried over to the following year or years and 18 may be deducted from the taxpayer's tax for such year or years. 19 § 31. Section 210 of the tax law is amended by adding a new subdivi- 20 sion 33 to read as follows: 21 33. Brownfield redevelopment tax credit. (a) Allowance of credit. A 22 taxpayer shall be allowed a credit, to be computed as provided in 23 section twenty-one of this chapter, against the tax imposed by this 24 article. 25 (b) Application of credit. The credit allowed under this subdivision 26 for any taxable year shall not reduce the tax due for such year to less 27 than the higher amount prescribed in paragraphs (c) and (d) of subdivi- 28 sion one of this section. However, if the amount of credits allowed 29 under this subdivision for any taxable year reduces the tax to such 30 amount, any amount of credit thus not deductible in such taxable year 31 shall be treated as an overpayment of tax to be credited or refunded in 32 accordance with the provisions of section ten hundred eighty-six of this 33 chapter. Provided, however, the provisions of subsection (c) of section 34 ten hundred eighty-eight of this chapter notwithstanding, no interest 35 shall be paid thereon. 36 § 32. Subparagraph (B) of paragraph 1 of subsection (i) of section 606 37 of the tax law, as amended by section 4 of part CC of chapter 85 of the 38 laws of 2002, is amended to read as follows: 39 (B) shall be treated as the owner of a new business with respect to 40 such share if the corporation qualifies as a new business pursuant to 41 paragraph (j) of subdivision twelve of section two hundred ten of this 42 chapter. 43 The corporation's 44 With respect to the credit base under 45 following credit section two hundred ten 46 under this section: or section fourteen 47 hundred fifty-six of this 48 chapter is: 49 Investment tax credit Investment credit base 50 under subsection (a) or qualified 51 rehabilitation 52 expenditures under 53 subdivision twelve of 54 section two hundred ten

S. 2935 60 1 Empire zone Cost or other basis 2 investment tax credit under subdivision 3 under subsection (j) twelve-B 4 of section two hundred 5 ten 6 Empire zone Eligible wages under 7 wage tax credit subdivision nineteen of 8 under subsection (k) section two hundred ten 9 or subsection (e) of 10 section fourteen hundred 11 fifty-six 12 Empire zone Qualified investments 13 capital tax credit and contributions under 14 under subsection (1) subdivision twenty of 15 section two hundred ten 16 or subsection (d) of 17 section fourteen hundred 18 fifty-six 19 Agricultural property tax Allowable school 20 credit under subsection (n) district property taxes under 21 subdivision twenty-two of 22 section two hundred ten 23 Credit for employment Qualified first-year wages or 24 of persons with dis- qualified second-year wages 25 abilities under under subdivision 26 subsection (o) twenty-three of section 27 two hundred ten 28 or subsection (f) 29 of section fourteen 30 hundred fifty-six 31 Employment incentive Applicable investment credit 32 credit under subsec- base under subdivision 33 tion (a-1) twelve-D of section two 34 hundred ten 35 Empire zone Applicable investment 36 employment credit under sub- 37 incentive credit under division twelve-C 38 subsection (j-1) of section two hundred ten 39 Alternative fuels credit Cost under subdivision 40 under subsection (p) twenty-four of section two 41 hundred ten 42 Qualified emerging Applicable credit base 43 technology company under subdivision twelve-E 44 employment credit of section two hundred ten 45 under subsection (q) 46 Qualified emerging Qualified investments under 47 technology company subdivision twelve-F of

S. 2935 61 1 capital tax credit section two hundred ten 2 under subsection (r) 3 Credit for purchase of an Cost of an automated 4 automated external defibrillator external defibrillator under 5 under subsection (s) subdivision twenty-five of 6 section two hundred ten 7 or subsection (j) of section 8 fourteen hundred fifty-six 9 Low-income housing Credit amount under 10 credit under subsection (x) subdivision thirty 11 of section two hundred ten or 12 subsection (1) of section 13 fourteen hundred fifty-six 14 Credit for transportation Amount of credit under sub- 15 improvement contributions division thirty-two of section 16 under subsection (z) two hundred ten or subsection 17 (n) of section fourteen 18 hundred fifty-six 19 IMB credit for energy Amount of credit 20 taxes under sub- under subdivision 21 section (t-1) twenty-six-a of 22 section two hundred ten 23 QEZE credit for real property Amount of [credit] benefit 24 taxes under subsection (bb) period factor, employment 25 increase factor and 26 zone allocation factor 27 (without regard to 28 proration) under 29 subdivision twenty-seven of 30 section two hundred ten or 31 subsection (o) of section 32 fourteen hundred fifty-six 33 and amount of tax 34 factor as determined 35 under subdivision 36 (f) of section sixteen 37 QEZE tax reduction credit Amount of benefit period 38 under subsection (cc) factor, employment increase factor 39 and zone allocation 40 factor (without regard 41 to pro ration) under 42 subdivision twenty-eight of 43 section two hundred ten or 44 subsection (p) of section 45 fourteen hundred fifty-six 46 and amount of tax factor 47 as determined under 48 subdivision (f) of section sixteen

S. 2935 62 1 Green building credit Amount of green building credit 2 under subsection (y) under subdivision thirty-one 3 of section two hundred ten 4 or subsection (m) of section 5 fourteen hundred fifty-six 6 Credit for long-term Qualified costs under 7 care insurance premiums subdivision twenty-five-a of 8 under subsection (aa) section two hundred ten 9 or subsection (k) of section 10 fourteen hundred fifty-six 11 Brownfield redevelopment Applicable cost 12 credit under subsection or other basis 13 (dd) under subdivision 14 thirty-three of section 15 two hundred ten 16 or subsection (q) of 17 section fourteen hundred 18 fifty-six 19 § 33. Subsections (dd) and (ee) of section 606 of the tax law, as 20 relettered by section 1 of part DD of chapter 63 of the laws of 2000, 21 are relettered subsections (yy) and (zz) and a new subsection (dd) is 22 added to read as follows: 23 (dd) Brownfield redevelopment tax credit. (1) Allowance of credit. A 24 taxpayer shall be allowed a credit, to be computed as provided in 25 section twenty-one of this chapter, against the tax imposed by this 26 article. 27 (2) Application of credit. If the amount of the credit allowed under 28 this subsection for any taxable year shall exceed the taxpayer's tax for 29 such year, the excess shall be treated as an overpayment of tax to be 30 credited or refunded in accordance with the provisions of section six 31 hundred eighty-six of this article, provided, however, that no interest 32 shall be paid thereon. 33 § 34. Subsection (c) of section 683 of the tax law is amended by 34 adding a new paragraph 10 to read as follows: 35 (10) Reports concerning a remediation certificate. If a taxpayer's 36 remediation certificate issued pursuant to section 27-1413 of the envi- 37 ronmental conservation law is modified or revoked by a determination 38 issued pursuant to subdivision six of section 27-1413 of the environ- 39 mental conservation law, any tax liability generated by reason of such 40 modification or revocation may be assessed within one year after such 41 determination is final and is no longer subject to judicial review and 42 the taxpayer shall be allowed to offset against such tax liability the 43 amount of any of the credits provided for under subsection (a) or (j) of 44 section six hundred six of this article which the taxpayer would have 45 been allowed with respect to amounts which were the basis for the credit 46 provided for under such section twenty-one which is the subject of such 47 assessment. 48 § 35. Subsection (a) of section 687 of the tax law, as amended by 49 chapter 309 of the laws of 1996, is amended to read as follows: 50 (a) General.--Claim for credit or refund of an overpayment of income 51 tax shall be filed by the taxpayer within (i) three years from the time 52 the return was filed [or], (ii) two years from the time the tax was 53 paid, or (iii) in the case of any overpayment arising from an erroneous 54 denial by the department of environmental conservation of a remediation

S. 2935 63 1 certificate pursuant to section 27-1413 of the environmental conserva- 2 tion law, two years from the time a final determination to the effect 3 that such denial was erroneous is made and is no longer subject to judi- 4 cial review, whichever of such periods expires the [later] latest, or if 5 no return was filed, within two years from the time the tax was paid. 6 If the claim is filed within the three year period, the amount of the 7 credit or refund shall not exceed the portion of the tax paid within the 8 three years immediately preceding the filing of the claim plus the peri- 9 od of any extension of time for filing the return unless such claim is 10 for a credit or a portion thereof provided pursuant to paragraph two or 11 four of subsection (c), paragraph two or four of subsection (d) or 12 subsection (e) of section six hundred six of this chapter. If the claim 13 is not filed within the three year period, but is filed within the two 14 year period, the amount of the credit or refund shall not exceed the 15 portion of the tax paid during the two years immediately preceding the 16 filing of the claim unless such claim is for a credit or a portion ther- 17 eof provided pursuant to paragraph two or four of subsection (c), para- 18 graph two or four of subsection (d) or subsection (e) of section six 19 hundred six of this chapter. In the case of a claim for credit or 20 refund filed within the period prescribed in paragraph (iii) of this 21 subsection, the amount of the credit or refund may exceed the portion of 22 the tax paid within the applicable period specified in the two imme- 23 diately preceding sentences, but only to the extent of the amount of the 24 overpayment attributable to the denial described in such paragraph. 25 Except as otherwise provided in this section, if no claim is filed, the 26 amount of a credit or refund shall not exceed the amount which would be 27 allowable if a claim had been filed on the date the credit or refund is 28 allowed. 29 § 36. Subsection (c) of section 1083 of the tax law is amended by 30 adding a new paragraph 10 to read as follows: 31 (10) Reports concerning a remediation certificate. If a taxpayer's 32 remediation certificate issued pursuant to section 27-1413 of the envi- 33 ronmental conservation law is modified or revoked by a determination 34 issued pursuant to subdivision six of section 27-1413 of the environ- 35 mental conservation law, any tax liability generated by reason of such 36 modification or revocation may be assessed within one year after such 37 determination is final and is no longer subject to judicial review and 38 the taxpayer shall be allowed to offset against such tax liability the 39 amount of any of the credits provided for under subdivision twelve or 40 twelve-B of section two hundred ten of this chapter, or subsection (i) 41 of section fourteen hundred fifty-six of this chapter or subdivision (q) 42 of section fifteen hundred eleven of this chapter which the taxpayer 43 would have been allowed with respect to amounts which were the basis for 44 the credit provided for under section twenty-one of this chapter which 45 is the subject of such assessment. 46 § 37. Subsection (a) of section 1087 of the tax law, as amended by 47 chapter 55 of the laws of 1982, is amended to read as follows: 48 (a) General.--Claim for credit or refund of an overpayment of tax 49 under article nine[, nine-a, nine-b or nine-c] or nine-A shall be filed 50 by the taxpayer within (i) three years from the time the return was 51 filed [or], (ii) two years from the time the tax was paid or (iii) in 52 the case of any overpayment arising from an erroneous denial by the 53 department of environmental conservation of a remediation certificate 54 pursuant to section 27-1413 of the environmental conservation law, two 55 years from the time a final determination to the effect that such denial 56 was erroneous is made and is no longer subject to judicial review,

S. 2935 64 1 whichever of such periods expires the [later] latest, or if no return 2 was filed, within two years from the time the tax was paid. If the claim 3 is filed within the three year period, the amount of the credit or 4 refund shall not exceed the portion of the tax paid within the three 5 years immediately preceding the filing of the claim plus the period of 6 any extension of time for filing the return. If the claim is not filed 7 within the three year period, but is filed within the two year period, 8 the amount of the credit or refund shall not exceed the portion of the 9 tax paid during the two years immediately preceding the filing of the 10 claim. In the case of a claim for credit or refund filed within the 11 period prescribed in paragraph (iii) of this subsection, the amount of 12 the credit or refund may exceed the portion of the tax paid within the 13 applicable period specified in the two immediately preceding sentences, 14 but only to the extent of the amount of the overpayment attributable to 15 the denial described in such paragraph (iii). Except as otherwise 16 provided in this section, if no claim is filed, the amount of a credit 17 or refund shall not exceed the amount which would be allowable if a 18 claim had been filed on the date the credit or refund is allowed. For 19 special restriction in a proceeding on a claim for refund of tax paid 20 pursuant to an assessment made as a result of (i) a net operating loss 21 carryback or capital loss carryback, or (ii) an increase or decrease in 22 federal taxable income or federal tax, or (iii) a federal change or 23 correction or renegotiation, or computation or recomputation of tax, 24 which is treated in the same manner as if it were a deficiency for 25 federal income tax purposes, see paragraph (7) of subsection (c) of 26 section one thousand eighty-three. 27 § 38. Section 1456 of the tax law is amended by adding a new 28 subsection (q) to read as follows: 29 (q) Brownfield redevelopment tax credit. (1) Allowance of credit. A 30 taxpayer shall be allowed a credit, to be computed as provided in 31 section twenty-one of this chapter, against the tax imposed by this 32 article. 33 (2) Application of credit. The credit allowed under this subdivision 34 for any taxable year shall not reduce the tax due for such year to less 35 than the minimum tax fixed by paragraph three of subsection (b) of 36 section fourteen hundred fifty-five of this article. However, if the 37 amount of credits allowed under this subdivision for any taxable year 38 reduces the tax to such amount, any amount of credit thus not deductible 39 in such taxable year shall be treated as an overpayment of tax to be 40 credited or refunded in accordance with the provisions of section ten 41 hundred eighty-six of this chapter. Provided, however, the provisions of 42 subsection (c) of section ten hundred eighty-eight of this chapter 43 notwithstanding, no interest shall be paid thereon. 44 § 39. Section 1511 of the tax law is amended by adding a new subdivi- 45 sion (u) to read as follows: 46 (u) Brownfield redevelopment tax credit. (1) Allowance of credit. A 47 taxpayer shall be allowed a credit, to be computed as provided in 48 section twenty-one of this chapter, against the taxes imposed by this 49 article. 50 (2) Application of credit. The credit allowed under this subdivision 51 for any taxable year shall not reduce the tax due for such year to less 52 than the minimum fixed by paragraph four of subdivision (a) of section 53 fifteen hundred two of this article. However, if the amount of credits 54 allowed under this subdivision for any taxable year reduces the tax to 55 such amount, any amount of credit thus not deductible in such taxable 56 year shall be treated as an overpayment of tax to be credited or

S. 2935 65 1 refunded in accordance with the provisions of section ten hundred eight- 2 y-six of this chapter. Provided, however, the provisions of subsection 3 (c) of section ten hundred eighty-eight of this chapter notwithstanding, 4 no interest shall be paid thereon. 5 § 40. The tax law is amended by adding a new section 25 to read as 6 follows: 7 § 25. Tax credits for remediated brownfields. (a) Definitions. As used 8 in this section the following terms shall have the following meanings: 9 (1) Remediation certificate. A "remediation certificate" is a certif- 10 icate issued by the commissioner of environmental conservation pursuant 11 to section 27-1413 of the environmental conservation law. 12 (2) Qualified site. For purposes of this section, a "qualified site" 13 is a site with respect to which a remediation certificate has been 14 issued. 15 (3) Academic year. The term "academic year" shall mean the annual 16 period of sessions of a post-secondary college or university. 17 (4) Academic incubator facility. The term "academic incubator facili- 18 ty" shall mean a facility providing low-cost space, technical assist- 19 ance, support services and educational opportunities, including but not 20 limited to central services by tenants of the facility, to a company 21 located in New York state whose primary activity is covered as defined 22 in paragraph (b) of subdivision one of section thirty-one hundred two-e 23 of the public authorities law, in the formative stage of development 24 through a partnership with an accredited post-secondary college or 25 university located in New York state. An academic incubator facility 26 shall promote job creation, entrepreneurship, technology transfer and 27 provide support services to incubator tenants, including, but not limit- 28 ed to, business planning, management assistance, financial-packaging, 29 linkages to financing services, and coordinating with other sources of 30 assistance. 31 (5) Developer. (i) A "developer" is a taxpayer under article nine, 32 nine-A, twenty-two, thirty-two or thirty-three of this chapter who or 33 which either (I) has been issued a remediation certificate with respect 34 to a qualified site or (II) has purchased or any other way has been 35 conveyed all or any portion of a qualified site from a taxpayer who or 36 which has been issued a remediation certificate with respect to such 37 site provided, such purchase or conveyance occurs within seven years of 38 the effective date of the remediation certificate issued with respect to 39 such qualified site. Provided further, that the taxpayer who or which 40 is purchasing all or any portion of a qualified site and the taxpayer 41 who or which has been issued a remediation certificate with respect to 42 such site may not be related persons, as such term is defined in subpar- 43 agraph (C) of paragraph three of subsection (b) of section four hundred 44 sixty-five of the internal revenue code. 45 (ii) Where the entity to whom a remediation certificate has been 46 issued is a partnership, or where the entity which has purchased all or 47 any portion of a qualified site from a taxpayer who or which has been 48 issued a remediation certificate with respect to such site within the 49 applicable time limit is a partnership, any partner in such partnership 50 who or which is taxable under article nine, nine-A, twenty-two, thirty- 51 two or thirty-three of this chapter shall be a developer under this 52 paragraph. Where the entity to whom a remediation certificate has been 53 issued is a New York S corporation, or where the entity which has 54 purchased all or any portion of a qualified site from a taxpayer who or 55 which has been issued a remediation certificate with respect to such 56 site within the applicable time limit is a New York S corporation, any

S. 2935 66 1 shareholder in such New York S corporation shall be a developer under 2 this paragraph. 3 (6) Cessation of status. A business enterprise shall cease to be an 4 eligible developer: 5 (i) for purposes of articles nine, nine-A, twenty-two, thirty-two and 6 thirty-three of this chapter, on the first day of the taxable year 7 during which revocation of its remediation certificate under subdivi- 8 sions six and seven of section 27-1413 of the environmental conservation 9 law, and 10 (ii) for purposes of articles twenty-eight and twenty-nine of this 11 chapter, on the day such revocation occurs. 12 (7) Business tax benefit period. The "business tax benefit period", 13 with regard to the credits described in subdivisions (b) and (c) of this 14 section, shall be a period of nineteen consecutive taxable years follow- 15 ing the initial issuance of a remediation certificate for the qualified 16 site. 17 (b) Remediated brownfield credit for real property taxes for qualified 18 sites. (1) Allowance of credit. A developer of a qualified site who or 19 which is subject to tax under article nine, nine-A, twenty-two, thirty- 20 two or thirty-three of this chapter, shall be allowed a credit against 21 such tax, pursuant to the provisions referenced in paragraph eight of 22 this subdivision, for eligible real property taxes imposed on such site. 23 (2) Amount of credit. The amount of the credit shall be the product of 24 (i) the benefit period factor, (ii) the employment number factor, and 25 (iii) the eligible real property taxes paid or incurred by the developer 26 of the qualified site during the taxable year (or the pro rata share of 27 such taxes in the case of a partner in a partnership). However, the 28 amount of the credit may not exceed the credit limitation set forth in 29 paragraph seven of this subdivision. 30 (3) Benefit period factor. The benefit period factors are set forth in 31 the following table: 32 Taxable year of the business tax benefit period: Benefit period 33 factor: 34 1-15 1.0 35 16 .8 36 17 .6 37 18 .4 38 19 .2 39 (4) Employment number factor. The employment number factors are set 40 forth in the following table: 41 Average number of full-time Employment number factor: 42 employees employed by the 43 developer of a qualified site 44 during the taxable year: 45 At least 25 but less than 50 .25 46 At least 50 but less than 75 .50 47 At least 75 but less than 100 .75 48 At least 100 1.00 49 (5) Eligible real property taxes. The term "eligible real property 50 taxes" means taxes imposed on the real property which consists of the 51 qualified site owned by the developer, provided such taxes become a lien 52 on the real property in a period during which the real property is a 53 large qualified site. Where the developer is a partner in a partnership 54 or a shareholder in a New York S corporation, such real property shall 55 be owned by the partnership or New York S corporation, respectively.

S. 2935 67 1 (6) Credit recapture. Where a developer's eligible real property taxes 2 which were the basis for the allowance of the credit provided for under 3 this subdivision are subsequently reduced as a result of a final order 4 in any proceeding under article seven of the real property tax law or 5 other provision of law, the taxpayer shall add back, in the taxable year 6 in which such final order is issued, the excess of (i) the amount of 7 credit originally allowed for a taxable year over (ii) the amount of 8 credit determined based upon the reduced eligible real property taxes. 9 If such final order reduces real property taxes for more than one year, 10 the taxpayer must determine how much of such reduction is attributable 11 to each year covered by such final order and calculate the amount of 12 credit which is required by this paragraph to be recaptured for each 13 year based on such reduction. 14 (7) Credit limitation. The credit limitation shall be the product of 15 (i) ten thousand dollars and (ii) the average number of full-time 16 employees employed by the developer of a qualified site at such site 17 during the taxable year. 18 (8) Credit option. If the qualified site is located in whole or in 19 part in an area designated as an empire zone pursuant to article eigh- 20 teen-B of the general municipal law, and a taxpayer meets the eligibil- 21 ity requirements for both the credit provided for under this subdivision 22 and the QEZE credit for real property taxes provided for under section 23 fifteen of this article, with respect to all or part of such site, such 24 taxpayer shall not be allowed to claim both such credits. The taxpayer 25 shall be required, in the first taxable year such taxpayer is allowed to 26 claim a credit under this subdivision, to elect whether to claim the 27 credit provided for under this subdivision or the credit provided for 28 under section fifteen of this article. Such election shall be made with 29 the filing of the return or report required under article nine, nine-A, 30 twenty-two, thirty-two or thirty-three of this chapter, whichever is 31 applicable, for such taxable year. Such election shall apply to and be 32 binding in each subsequent taxable year in the business tax benefit 33 period applicable to the credit provided for under either this section 34 or section fifteen of this article. A taxpayer who or which has been 35 allowed a credit under section fifteen of this article, in a taxable 36 year preceding the first taxable year such taxpayer is allowed to claim 37 a credit under this subdivision, shall not be precluded from making the 38 election provided for in this paragraph. 39 (9) Cross-references. For application of the credit provided for in 40 this subdivision, see the following provisions of this chapter: 41 (i) Article 9: Section 187-h. 42 (ii) Article 9-A: Section 210: subdivision thirty-six. 43 (iii) Article 22: Section 606: subsections (i) and (jj). 44 (iv) Article 32: Section 1456: subsection (r). 45 (v) Article 33: Section 1511: subdivision (v). 46 (c) Remediated brownfield credit for qualified high technology train- 47 ing expenses. (1) Allowance of credit. A taxpayer which is a developer, 48 or which is a sole proprietor of a developer or a member of a partner- 49 ship which is a developer, and which is subject to tax under article 50 nine, nine-A, twenty-two, thirty-two or thirty-three of this chapter, 51 shall be allowed a credit against such tax, pursuant to the provisions 52 referenced in paragraph six of this subdivision, to be computed as here- 53 inafter provided. The credit shall be allowed where a developer has 54 incurred eligible qualified brownfield recovery high-technology expenses 55 for a full-time, full-year employee of a developer whose position is

S. 2935 68 1 primarily located in a qualified site pursuant to section 27-1413 of the 2 environmental conservation law. 3 (2) Brownfield recovery high-technology training. Brownfield recovery 4 high-technology training shall include a course or courses taken and 5 satisfactorily completed at an accredited, degree granting post-secon- 6 dary college or university in New York State that relates to the activ- 7 ities referenced under paragraph (b) of subdivision one of section thir- 8 ty-one hundred two-e of the public authorities law which is intended to 9 upgrade, retrain or improve the productivity or theoretical awareness of 10 eligible employees of a developer. Such course or courses include, but 11 are not limited to, instruction or research relating to techniques, 12 meta, macro, or micro-theoretical or practical knowledge bases or fron- 13 tiers, or ethical concerns related to eligible activities. Satisfactory 14 completion of a course or courses shall mean the earning and granting of 15 credit or equivalent unit for the relevant course or courses from the 16 institution offering this course or courses. 17 (3) Qualified brownfield recovery high-technology training expendi- 18 tures. Qualified brownfield high-technology training expenditures shall 19 include expenditures for tuition and mandatory fees imposed by the 20 institution offering the course or courses, minus applicable scholar- 21 ships or waivers not granted by the developer, its parent or affiliates, 22 paid or reimbursed by the developer. Expenses that will not count as 23 qualified include, but are not limited to, books, documents, software, 24 late-charges, fines or membership dues. 25 (4) Amount of credit. A credit shall be allowed for the amount of 26 qualified brownfield recovery high-technology training expenditures 27 incurred by an employer. The amount of credit shall be all qualifying 28 expenses up to four thousand dollars per employee referenced in this 29 subdivision per taxable year, if said employee is still employed by the 30 taxpayer in a full-time, full-year position within a qualified site, one 31 hundred twenty days after the satisfactory completion of the qualifying 32 course-work taken during the taxable year or years in which such expend- 33 itures were paid. 34 (5) Application of credit for relocation from an academic incubator 35 facility. If a taxpayer relocates from an academic business incubator 36 facility partnered with an accredited post-secondary education institu- 37 tion located within New York state, which provides space and business 38 support services to newly established taxpayers, to a qualified site and 39 becomes a developer, all incurred and paid expenses referenced in subdi- 40 vision (c) of this section for employees of the taxpayer who also relo- 41 cate from said incubator facility to a qualified site and are primarily 42 employed by said taxpayer shall be eligible for the credit referenced in 43 paragraph six of this subdivision for the base year and the preceding 44 two years that the taxpayer was located in said incubator facility. 45 These credits can be earned for any incurred expenses paid for an eligi- 46 ble employee who is a full-time, full-year employee of said taxpayer 47 which becomes a developer. However, such employee could have been 48 employed full or part-time as an officer, staff-person or paid intern of 49 the taxpayer when such taxpayer was located at such incubator facility, 50 and such employee was at that time employed by such taxpayer, as long as 51 such employee was paid for at least seven hundred fifty hours during 52 such taxpayer's taxable year or such institution's academic year. The 53 taxpayer can claim the earned credits pertaining to this subdivision 54 during the first two taxable years such taxpayer becomes a developer. 55 (6) Cross-references. For application of the credit provided for in 56 this subdivision, see the following provisions of this chapter:

S. 2935 69 1 (i) Article 9: Section 187-h. 2 (ii) Article 9-A: Section 210: subdivision thirty-six. 3 (iii) Article 22: Section 606: subsections (i) and (jj). 4 (iv) Article 32: Section 1456: subsection (r). 5 (v) Article 33: Section 1511: subdivision (v). 6 (c) Remediated brownfield credit for qualified high technology train- 7 ing expenses. (1) Allowance of credit. A taxpayer which is a developer, 8 or which is a sole proprietor of a developer or a member of a partner- 9 ship which is a developer, and which is subject to tax under article 10 nine, nine-A, twenty-two, thirty-two or thirty-three of this chapter, 11 shall be allowed a credit against such tax, pursuant to the provisions 12 referenced in paragraph six of this subdivision, to be computed as here- 13 inafter provided. The credit shall be allowed where a developer has 14 incurred eligible qualified brownfield recovery high-technology expenses 15 for a full-time, full-year employee of a developer whose position is 16 primarily located in a qualified site pursuant to section 27-1413 of the 17 environmental conservation law. 18 (2) Brownfield recovery high-technology training. Brownfield recovery 19 high-technology training shall include a course or courses taken and 20 satisfactorily completed at an accredited, degree granting post-secon- 21 dary college or university in New York State that relates to the activ- 22 ities referenced under paragraph (b) of subdivision one of section thir- 23 ty-one hundred two-e of the public authorities law which is intended to 24 upgrade, retrain or improve the productivity or theoretical awareness of 25 eligible employees of a developer. Such course or courses include, but 26 are not limited to, instruction or research relating to techniques, 27 meta, macro, or micro-theoretical or practical knowledge bases or fron- 28 tiers, or ethical concerns related to eligible activities. Satisfactory 29 completion of a course or courses shall mean the earning and granting of 30 credit or equivalent unit for the relevant course or courses from the 31 institution offering this course or courses. 32 (3) Qualified brownfield recovery high-technology training expendi- 33 tures. Qualified brownfield high-technology training expenditures shall 34 include expenditures for tuition and mandatory fees imposed by the 35 institution offering the course or courses, minus applicable scholar- 36 ships or waivers not granted by the developer, its parent or affiliates, 37 paid or reimbursed by the developer. Expenses that will not count as 38 qualified include, but are not limited to, books, documents, software, 39 late-charges, fines or membership dues. 40 (4) Amount of credit. A credit shall be allowed for the amount of 41 qualified brownfield recovery high-technology training expenditures 42 incurred by an employer. The amount of credit shall be all qualifying 43 expenses up to four thousand dollars per employee referenced in this 44 subdivision per taxable year, if said employee is still employed by the 45 taxpayer in a full-time, full-year position within a qualified site, one 46 hundred twenty days after the satisfactory completion of the qualifying 47 course-work taken during the taxable year or years in which such expend- 48 itures were paid. 49 (5) Application of credit for relocation from an academic incubator 50 facility. If a taxpayer relocates from an academic business incubator 51 facility partnered with an accredited post-secondary education institu- 52 tion located within New York state, which provides space and business 53 support services to newly established taxpayers, to a qualified site and 54 becomes a developer, all incurred and paid expenses referenced in subdi- 55 vision (c) of this section for employees of the taxpayer who also relo- 56 cate from said incubator facility to a qualified site and are primarily

S. 2935 70 1 employed by said taxpayer shall be eligible for the credit referenced in 2 paragraph six of this subdivision for the base year and the preceding 3 two years that the taxpayer was located in said incubator facility. 4 These credits can be earned for any incurred expenses paid for an eligi- 5 ble employee who is a full-time, full-year employee of said taxpayer 6 which becomes a developer. However, such employee could have been 7 employed full or part-time as an officer, staff-person or paid intern of 8 the taxpayer when such taxpayer was located at such incubator facility, 9 and such employee was at that time employed by such taxpayer, as long as 10 such employee was paid for at least seven hundred fifty hours during 11 such taxpayer's taxable year or such institution's academic year. The 12 taxpayer can claim the earned credits pertaining to this subdivision 13 during the first two taxable years such taxpayer becomes a developer. 14 (6) Cross-references. For application of the credit provided for in 15 this subdivision, see the following provisions of this chapter: 16 (i) Article 9: Section 187-i. 17 (ii) Article 9-A: Section 210: subdivision thirty-seven. 18 (iii) Article 22: Section 606: subsections (i) and (kk). 19 (iv) Article 32: Section 1456: subsection (s). 20 (v) Article 33: Section 1511: subdivision (w). 21 § 41. The tax law is amended by adding two new sections 187-h and 22 187-i to read as follows: 23 § 187-h. Remediated brownfield credit for real property taxes for 24 qualified sites. 1. Allowance of credit. A taxpayer shall be allowed a 25 credit, to be computed as provided in subdivision (b) of section twen- 26 ty-five of this chapter, against the taxes imposed by sections one 27 hundred eighty-three, one hundred eighty-four and one hundred eighty- 28 five of this article. Provided, however, that the amount of such credit 29 allowed against the tax imposed by section one hundred eighty-four of 30 this article shall be the excess of the amount of such credit over the 31 amount of any credit allowed by this section against the tax imposed by 32 section one hundred eighty-three of this article. 33 2. Application of credit. In no event shall the credit under this 34 section be allowed in an amount which will reduce the tax payable to 35 less than the applicable minimum tax fixed by section one hundred eight- 36 y-three or one hundred eighty-five of this article. If, however, the 37 amount of credit allowed under this section for any taxable year reduces 38 the tax to such amount, any amount of credit not thus deductible in such 39 taxable year shall be treated as an overpayment of tax to be credited or 40 refunded in accordance with the provisions of section ten hundred 41 eighty-six of this chapter. Provided, however, the provisions of 42 subsection (c) of section ten hundred eighty-eight of this chapter 43 notwithstanding, no interest shall be paid thereon. 44 § 187-i. Remediated brownfield credit for qualified high technology 45 training expenses. 1. Allowance of credit. A taxpayer shall be allowed a 46 credit, to be computed as provided in subdivision (b) of section twen- 47 ty-five of this chapter, against the taxes imposed by section one 48 hundred eighty-three, one hundred eighty-four and one hundred eighty- 49 five of this article. Provided, however, that the amount of such credit 50 allowed against the tax imposed by section one hundred eighty-four of 51 this article shall be the excess of the amount of such credit over the 52 amount of any credit allowed by this section against the tax imposed by 53 section one hundred eighty-three of this article. 54 2. Application of credit. In no event shall the credit under this 55 section be allowed in an amount which will reduce the tax payable to 56 less than the applicable minimum tax fixed by section one hundred

S. 2935 71 1 eighty-three or one hundred eighty-five of this article. If, however, 2 the amount of credit allowed under this section for any taxable year 3 reduces the tax to such amount, any amount of credit not thus deductible 4 in such taxable year shall be treated as an overpayment of tax to be 5 credited or refunded in accordance with the provisions of section ten 6 hundred eighty-six of this chapter. Provided, however, the provisions 7 of subsection (c) of section ten hundred eighty-eight of this chapter 8 notwithstanding, no interest shall be paid thereon. 9 § 42. Section 210 of the tax law is amended by adding two new subdivi- 10 sions 36 and 37 to read as follows: 11 36. Remediated brownfield credit for real property taxes for qualified 12 sites. (a) Allowance of credit. A taxpayer which is a developer of a 13 qualified site shall be allowed a credit for eligible real property 14 taxes, to be computed as provided in subdivision (b) of section twenty- 15 five of this chapter, against the tax imposed by this article. For 16 purposes of this subdivision, the terms "qualified site" and "developer" 17 shall have the same meaning as set forth in paragraphs two and five, 18 respectively, of subdivision (a) of section twenty-five of this chapter. 19 (b) Application of credit. The credit allowed under this subdivision 20 for any taxable year shall not reduce the tax due for such year to less 21 than the higher of the amounts prescribed in paragraphs (c) and (d) of 22 subdivision one of this section. However, if the amount of credit 23 allowed under this subdivision for any taxable year reduces the tax to 24 such amount, any amount of credit thus not deductible in such taxable 25 year shall be treated as an overpayment of tax to be credited or 26 refunded in accordance with the provisions of section ten hundred 27 eighty-six of this chapter. Provided, however, the provisions of 28 subsection (c) of section ten hundred eighty-eight of this chapter 29 notwithstanding, no interest shall be paid thereon. 30 37. Remediated brownfield credit for qualified high technology train- 31 ing expenses. (a) Allowance of credit. A taxpayer which is a developer 32 shall be allowed a credit for eligible expenses, to be computed as 33 provided in subdivision (c) of section twenty-five of this chapter, 34 against the tax imposed by this article. For purposes of this subdivi- 35 sion, the terms "qualified site" and "developer" shall have the same 36 meaning as set forth in paragraphs two and five, respectively, of subdi- 37 vision (a) of section twenty-five of this chapter. 38 (b) Application of credit. The credit allowed under this subdivision 39 for any taxable year shall not reduce the tax due for such year to less 40 than the higher of the amounts prescribed in paragraphs (c) and (d) of 41 subdivision one of this section. However, if the amount of credit 42 allowed under this subdivision for any taxable year reduces the tax to 43 such amount, any amount of credit thus not deductible in such taxable 44 year shall be treated as an overpayment of tax to be credited or 45 refunded in accordance with the provisions of section ten hundred 46 eighty-six of this chapter. Provided, however, the provisions of 47 subsection (c) of section ten hundred eighty-eight of this chapter 48 notwithstanding, no interest shall be paid thereon. 49 § 43. Subparagraph (B) of paragraph 1 of subsection (i) of section 606 50 of the tax law, as amended by section 4 of part CC of chapter 85 of the 51 laws of 2002, is amended to read as follows: 52 (B) shall be treated as the owner of a new business with respect to 53 such share if the corporation qualifies as a new business pursuant to 54 paragraph (j) of subdivision twelve of section two hundred ten of this 55 chapter.

S. 2935 72 1 The corporation's 2 With respect to the credit base under 3 following credit section two hundred ten 4 under this section: or section fourteen 5 hundred fifty-six of this 6 chapter is: 7 Investment tax credit Investment credit base 8 under subsection (a) or qualified 9 rehabilitation 10 expenditures under 11 subdivision twelve of 12 section two hundred ten 13 Empire zone Cost or other basis 14 investment tax credit under subdivision 15 under subsection (j) twelve-B 16 of section two hundred 17 ten 18 Empire zone Eligible wages under 19 wage tax credit subdivision nineteen of 20 under subsection (k) section two hundred ten 21 or subsection (e) of 22 section fourteen hundred 23 fifty-six 24 Empire zone Qualified investments 25 capital tax credit and contributions under 26 under subsection (1) subdivision twenty of 27 section two hundred ten 28 or subsection (d) of 29 section fourteen hundred 30 fifty-six 31 Agricultural property tax Allowable school 32 credit under subsection (n) district property taxes under 33 subdivision twenty-two of 34 section two hundred ten 35 Credit for employment Qualified first-year wages or 36 of persons with dis- qualified second-year wages 37 abilities under under subdivision 38 subsection (o) twenty-three of section 39 two hundred ten 40 or subsection (f) 41 of section fourteen 42 hundred fifty-six 43 Employment incentive Applicable investment credit 44 credit under subsec- base under subdivision 45 tion (a-1) twelve-D of section two 46 hundred ten 47 Empire zone Applicable investment 48 employment credit under sub-

S. 2935 73 1 incentive credit under division twelve-C 2 subsection (j-1) of section two hundred ten 3 Alternative fuels credit Cost under subdivision 4 under subsection (p) twenty-four of section two 5 hundred ten 6 Qualified emerging Applicable credit base 7 technology company under subdivision twelve-E 8 employment credit of section two hundred ten 9 under subsection (q) 10 Qualified emerging Qualified investments under 11 technology company subdivision twelve-F of 12 capital tax credit section two hundred ten 13 under subsection (r) 14 Credit for purchase of an Cost of an automated 15 automated external defibrillator external defibrillator under 16 under subsection (s) subdivision twenty-five of 17 section two hundred ten 18 or subsection (j) of section 19 fourteen hundred fifty-six 20 Low-income housing Credit amount under 21 credit under subsection (x) subdivision thirty 22 of section two hundred ten or 23 subsection (1) of section 24 fourteen hundred fifty-six 25 Credit for transportation Amount of credit under sub- 26 improvement contributions division thirty-two of section 27 under subsection (z) two hundred ten or subsection 28 (n) of section fourteen 29 hundred fifty-six 30 IMB credit for energy Amount of credit 31 taxes under sub- under subdivision 32 section (t-1) twenty-six-a of 33 section two hundred ten 34 QEZE credit for real property Amount of credit under 35 taxes under subsection (bb) subdivision twenty-seven of 36 section two hundred ten or 37 subsection (o) of section 38 fourteen hundred fifty-six 39 QEZE tax reduction credit Amount of benefit period 40 under subsection (cc) factor, employment increase factor 41 and zone allocation 42 factor (without regard 43 to pro ration) under 44 subdivision twenty-eight of 45 section two hundred ten or 46 subsection (p) of section 47 fourteen hundred fifty-six

S. 2935 74 1 and amount of tax factor 2 as determined under 3 subdivision (f) of section sixteen 4 Green building credit Amount of green building credit 5 under subsection (y) under subdivision thirty-one 6 of section two hundred ten 7 or subsection (m) of section 8 fourteen hundred fifty-six 9 Credit for long-term Qualified costs under 10 care insurance premiums subdivision twenty-five-a of 11 under subsection (aa) section two hundred ten 12 or subsection (k) of section 13 fourteen hundred fifty-six 14 Remediated brownfield Amount of credit under 15 credit for real property subdivision thirty-six 16 taxes for qualified of section two hundred 17 sites under subsection ten or subsection (r) of 18 (jj) section fourteen hundred 19 fifty-six 20 Remediated brownfield Amount of credit under 21 credit for qualified high subdivision thirty-seven 22 technology training of section two hundred 23 expenses under subsection ten or subsection (s) of 24 (kk) section fourteen hundred 25 fifty-six 26 § 44. Section 606 of the tax law is amended by adding two new 27 subsections (jj) and (kk) to read as follows: 28 (jj) Remediated brownfield credit for real property taxes for quali- 29 fied sites. (1) Allowance of credit. A taxpayer which is a developer of 30 a qualified site shall be allowed a credit for eligible real property 31 taxes, to be computed as provided in subdivision (b) of section twenty- 32 five of this chapter, against the tax imposed by this article. For 33 purposes of this subsection, the terms "qualified site" and "developer" 34 shall have the same meaning as set forth in paragraphs two and five, 35 respectively, of subdivision (a) of section twenty-five of this chapter. 36 (2) Application of credit. If the amount of the credit allowed under 37 this subsection for any taxable year shall exceed the taxpayer's tax for 38 such year, the excess shall be treated as an overpayment of tax to be 39 credited or refunded in accordance with the provisions of section six 40 hundred eighty-six of this article, provided, however, that no interest 41 shall be paid thereon. 42 (kk) Remediated brownfield tax credit for qualified high technology 43 training expenses. (1) Allowance of credit. A taxpayer which is a devel- 44 oper of a qualified site shall be allowed a credit for eligible high 45 technology training expenses, to be computed as provided in subdivision 46 (c) of section twenty-five of this chapter, against the tax imposed by 47 this article. For purposes of this subsection, the terms "qualified 48 site" and "developer" shall have the same meaning as set forth in para- 49 graphs two and five, respectively, of subdivision (a) of section twen- 50 ty-five of this chapter. 51 (2) Application of credit. If the amount of the credit allowed under 52 this subsection for any taxable year shall exceed the taxpayer's tax for

S. 2935 75 1 such year, the excess shall be treated as an overpayment of tax to be 2 credited or refunded in accordance with the provisions of section six 3 hundred eighty-six of this article, provided, however, that no interest 4 shall be paid thereon. 5 § 45. Section 1456 of the tax law is amended by adding two new 6 subsections (r) and (s) to read as follows: 7 (r) Remediated brownfield credit for real property taxes for qualified 8 sites. (1) Allowance of credit. A taxpayer which is a developer of a 9 qualified site shall be allowed a credit for eligible real property 10 taxes, to be computed as provided in subdivision (b) of section twenty- 11 five of this chapter, against the tax imposed by this article. For 12 purposes of this subsection, the terms "qualified site" and "developer" 13 shall have the same meaning as set forth in paragraphs two and five 14 respectively, of subdivision (a) of section twenty-five of this chapter. 15 (2) Application of credit. The credit allowed under this subsection 16 for any taxable year shall not reduce the tax due for such year to less 17 than the minimum tax fixed by paragraph three of subsection (b) of 18 section fourteen hundred fifty-five of this article. However, if the 19 amount of credit allowed under this subsection for any taxable year 20 reduces the tax to such amount, any amount of credit thus not deductible 21 in such taxable year shall be treated as an overpayment of tax to be 22 credited or refunded in accordance with the provisions of section ten 23 hundred eighty-six of this chapter. Provided, however, the provisions of 24 subsection (c) of section ten hundred eighty-eight of this chapter 25 notwithstanding, no interest shall be paid thereon. 26 (s) Remediated brownfield credit for qualified high technology train- 27 ing expenses. (1) Allowance of credit. A taxpayer which is a developer 28 of a large qualified site shall be allowed a credit for eligible high- 29 technology training expenses, to be computed as provided in subdivision 30 (c) of section twenty-five of this chapter, against the tax imposed by 31 this article. For purposes of this subsection, the terms "qualified 32 site" and "developer" shall have the same meaning as set forth in para- 33 graphs two and five, respectively, of subdivision (a) of section twen- 34 ty-five of this chapter. 35 (2) Application of credit. The credit allowed under this subsection 36 for any taxable year shall not reduce the tax due for such year to less 37 than the minimum tax fixed by paragraph three of subsection (b) of 38 section fourteen hundred fifty-five of this article. However, if the 39 amount of credit allowed under this subsection for any taxable year 40 reduces the tax to such amount, any amount of credit thus not deductible 41 in such taxable year shall be treated as an overpayment of tax to be 42 credited or refunded in accordance with the provisions of section ten 43 hundred eighty-six of this chapter. Provided, however, the provisions of 44 subsection (c) of section ten hundred eighty-eight of this chapter 45 notwithstanding, no interest shall be paid thereon. 46 § 46. Section 1511 of the tax law is amended by adding two new subdi- 47 visions (v) and (w) to read as follows: 48 (v) Remediated brownfield credit for real property taxes for qualified 49 sites. (1) Allowance of credit. A taxpayer which is a developer of a 50 qualified site shall be allowed a credit for eligible real property 51 taxes, to be computed as provided in subdivision (b) of section twenty- 52 five of this chapter, against the tax imposed by this article. For 53 purposes of this subdivision, the terms "qualified site" and "developer" 54 shall have the same meaning as set forth in paragraphs two and five 55 respectively, of subdivision (a) of section twenty-five of this chapter.

S. 2935 76 1 (2) Application of credit. The credit allowed under this subdivision 2 for any taxable year shall not reduce the tax due for such year to less 3 than the minimum tax fixed by paragraph four of subdivision (a) of 4 section fifteen hundred two of this article. However, if the amount of 5 credit allowed under this subdivision for any taxable year reduces the 6 tax to such amount, any amount of credit thus not deductible in such 7 taxable year shall be treated as an overpayment of tax to be credited or 8 refunded in accordance with the provisions of section ten hundred 9 eighty-six of this chapter. Provided, however, the provisions of 10 subsection (c) of section ten hundred eighty-eight of this chapter 11 notwithstanding, no interest shall be paid thereon. 12 (w) Remediated brownfield credit for qualified high-technology train- 13 ing expenses. (1) Allowance of credit. A taxpayer which is a developer 14 of a qualified site shall be allowed a credit for high-technology train- 15 ing expenses, to be computed as provided in subdivision (c) of section 16 twenty-five of this chapter, against the tax imposed by this article. 17 For purposes of this subdivision, the terms "qualified site" and "devel- 18 oper" shall have the same meaning as set forth in paragraphs two and 19 five, respectively, of subdivision (a) of section twenty-five of this 20 chapter. 21 (2) Application of credit. The credit allowed under this subdivision 22 for any taxable year shall not reduce the tax due for such year to less 23 than the minimum tax fixed by paragraph four of subdivision (a) of 24 section fifteen hundred two of this article. However, if the amount of 25 credit allowed under this subdivision for any taxable year reduces the 26 tax to such amount, any amount of credit thus not deductible in such 27 taxable year shall be treated as an overpayment of tax to be credited or 28 refunded in accordance with the provisions of section ten hundred eight- 29 y-six of this chapter. Provided, however, the provisions of subsection 30 (c) of section ten hundred eighty-eight of this chapter notwithstanding, 31 no interest shall be paid thereon. 32 § 47. Subparagraph 5 of paragraph (b) of subdivision 1 of section 33 3102-e of the public authorities law is renumbered subparagraph 6 and a 34 new subparagraph 5 is added to read as follows: 35 (5) biotechnologies, which shall be defined as technologies involving 36 the scientific manipulation of living organisms, especially at the 37 molecular genetic level, to produce products conducive to improving the 38 lives and health of plants, animals, and humans; and the associated 39 scientific research, pharmacological, mechanical, computational, and 40 communication applications and services connected with these improve- 41 ments. Activities included with such applications and services shall 42 include, but not be limited to, alternative mRNA splicing, DNA sequence 43 amplification, antigenic switching, bioaugmentation, bioenrichment, 44 bioremediation, chromozone walking, cytogenetic engineering, DNA diagno- 45 sis, fingerprinting, and sequencing, enhanced breeding, electroporation, 46 gene translocation, northern and southern hybridization, genetic 47 mapping, site-directed mutagenesis, bio-transduction, bio-mechanical and 48 bio-electrical engineering, bio-technical writing, bio-infomatics and 49 computational biology. 50 § 48. Section 190 of the economic development law is amended by adding 51 a new subdivision 7 to read as follows: 52 7. "Large-sized denominated commercial firm" shall mean a business 53 that employes more than five hundred persons within the state on a full- 54 time basis at one contiguous site or within a designated research, 55 industrial or commercial park or similarly defined area. Such business's

S. 2935 77 1 operations shall consist, separately or in combination, primarily of 2 research and development or manufacturing activities. 3 § 49. This act shall take effect immediately except that sections 4 twenty-nine through forty-eight of this act shall take effect on taxable 5 years beginning on or after April 1, 2005; provided, however, that the 6 IMB credit for energy taxes under subsection (t-1) of section 606 of the 7 tax law contained in sections thirty-two and forty-three of this act 8 shall expire on the same date as provided in subdivision (a) of section 9 49 of part Y of chapter 63 of the laws of 2000.