2000-01 RETRIEVE BILL TED - 001
STATE OF NEW YORK
________________________________________________________________________
S. 6292 A. 9292
SENATE - ASSEMBLY
January 13, 2000
___________
IN SENATE -- A BUDGET BILL, submitted by the Governor pursuant to arti-
cle seven of the Constitution -- read twice and ordered printed, and
when printed to be committed to the Committee on Finance
IN ASSEMBLY -- A BUDGET BILL, submitted pursuant to article seven of the
Constitution -- read once and referred to the Committee on Ways and
Means
AN ACT to authorize the dormitory authority of the state of New York to
provide funding for the Cornell university theory center (A); to
provide for the use of utility assessment funds (B); to amend the
environmental conservation law, in relation to surf clams and ocean
quahogs (C); to amend chapter 1 of the laws of 1997 amending the envi-
ronmental conservation law relating to project selections, in relation
to extending the effectiveness of such chapter (D); to amend the envi-
ronmental conservation law, the civil practice law and rules, the
general municipal law, the navigation law, the public authorities law,
the public health law, the real property law and the state finance
law, in relation to the remediation of inactive hazardous waste
disposal sites and the cleanup and removal of petroleum discharges and
to repeal section 27-1316 of the environmental conservation law and
section 1389-e of the public health law relating thereto; to amend
chapter 83 of the laws of 1995 amending the state finance law and
other laws relating to bonds, notes and revenue, in relation to making
permanent certain provisions thereof; and to amend the tax law, in
relation to a tax credit for brownfield redevelopment (E); to amend
the environmental conservation law and the state finance law, in
relation to fishing and hunting licenses and fees therefor; and to
repeal certain provisions of the environmental conservation law relat-
ing thereto (F); to amend the real property tax law, in relation to
state reimbursement for forest tax exemptions (G); to amend the state
finance law and the environmental conservation law, in relation to the
environmental protection fund and repealing subdivision 7 of section
92-s of the state finance law relating to the application of certain
state assistance payments (H); to amend the emergency tenant
protection act of nineteen seventy-four, in relation to the obligation
of the city of New York to fund its administration (I); to provide for
the use of petroleum overcharge restitution funds (J); to amend the
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD12334-02-0
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transportation law, in relation to the deposit of motor carrier regis-
tration fees (K); and to amend the public authorities law and chapter
329 of the laws of 1991 amending the state finance law and other laws
relating to the establishment of the dedicated bridge and trust fund,
in relation to the authorization of the state's five-year transporta-
tion plan (L)
The People of the State of New York, represented in Senate and Assem-
bly, do enact as follows:
1 Section 1. This act enacts into law major components of legislation
2 which are necessary to implement the state fiscal plan for the 2000-2001
3 state fiscal year. Each component is wholly contained within a Part
4 identified as Parts A through L. The effective date for each particular
5 provision contained within such Part is set forth in the last section of
6 such Part. Any provision in any section contained within a Part, includ-
7 ing the effective date of the Part, which makes reference to a section
8 "of this act", when used in connection with that particular component,
9 shall be deemed to mean and refer to the corresponding section of the
10 Part in which it is found. Section three of this act sets forth the
11 general effective date of this act.
12 PART A
13 Section 1. The dormitory authority of the state of New York is author-
14 ized to enter into an agreement with Cornell university for the support
15 of operation of the parallel computing supercomputers at the theory
16 center for supercomputers in connection with the business of the dormi-
17 tory authority in an amount not to exceed $1,200,000 over amounts previ-
18 ously authorized.
19 § 2. This act shall take effect April 1, 2000.
20 PART B
21 Section 1. Expenditures of moneys appropriated in a chapter of the
22 laws of 2000 to the energy research and development authority from the
23 special revenue funds - other / state operations, miscellaneous special
24 revenue fund - 339, energy research and planning account under the
25 research, development and demonstration and policy and planning programs
26 for services and expenses for the research, development and demon-
27 stration and policy and planning programs shall be subject to the
28 provisions of this section. Notwithstanding the provisions of subdivi-
29 sion 4-a of section 18-a of the public service law all moneys committed
30 or expended shall be reimbursed by assessment against gas corporations
31 and electric corporations as defined in section 2 of the public service
32 law, and the total amount which may be charged to any gas corporation
33 and any electric corporation shall not exceed one cent per one thousand
34 cubic feet of gas sold and .010 cent per kilowatt-hour of electricity
35 sold by such corporations in their intrastate utility operations in
36 calendar year 1998. Such amounts shall be excluded from the general
37 assessment provisions of subdivision 2 of section 18-a of the public
38 service law, but shall be billed and paid in the manner set forth in
39 such subdivision and upon receipt shall be paid to the state comptroller
40 for deposit in the state treasury for credit to the miscellaneous
41 special revenue fund. The director of the budget shall not issue a
S. 6292 3 A. 9292
1 certificate of approval with respect to the commitment and expenditure
2 of moneys hereby appropriated until the chair of the authority shall
3 have submitted, and the director of the budget shall have approved, a
4 comprehensive financial plan encompassing all moneys available to and
5 all anticipated commitments and expenditures by the authority from any
6 source for the operations of the authority. Copies of the approved
7 comprehensive financial plan shall be immediately submitted by the
8 director of the budget to the chairs and secretaries of the legislative
9 fiscal committees.
10 § 2. This act shall take effect April 1, 2000.
11 PART C
12 Section 1. Subdivision 14 of section 13-0309 of the environmental
13 conservation law, as amended by section 5 of part A of chapter 58 of the
14 laws of 1998, is amended to read as follows:
15 14. The department[, until January first, two thousand one] shall be
16 entitled to collect fifteen cents per bushel of surf clams and ten
17 cents per bushel of ocean quahogs taken from all certified waters to be
18 deposited in the surf clam/ocean quahog account as provided in section
19 eighty-three of the state finance law.
20 § 2. This act shall take effect immediately.
21 PART D
22 Section 1. Section 8 of chapter 1 of the laws of 1997, amending the
23 environmental conservation law relating to project selections, is
24 amended to read as follows:
25 § 8. This act shall take effect immediately except that this act
26 shall not apply to such projects which are to be funded under the budget
27 for fiscal year 1997-98. This act shall expire and be deemed repealed
28 April 1, [2000] 2003 provided, however, that such expiration and repeal
29 shall not affect or diminish the authority of any department, agency,
30 public benefit corporation, or public authority to contract for state
31 assistance payments, and provided further that such expiration and
32 repeal shall not affect the validity or effectiveness of any regulations
33 or guidelines promulgated to implement the Clean Water/Clean Air Bond
34 Act of 1996.
35 § 2. This act shall take effect immediately and shall be deemed to
36 have been in full force and effect on and after April 1, 2000.
37 PART E
38 Section 1. Subdivisions 1, 3 and 4 of section 27-1301 of the environ-
39 mental conservation law, subdivision 1 as amended by chapter 857 of the
40 laws of 1982 and subdivisions 3 and 4 as added by chapter 282 of the
41 laws of 1979, are amended to read as follows:
42 1. "Hazardous waste" means a waste which appears on the list or satis-
43 fies the characteristics promulgated by the commissioner pursuant to
44 section 27-0903 of this [chapter and, until, but not after, the promul-
45 gation of such list, a waste or combination of wastes, which because of
46 its quantity, concentration, or physical, chemical or infectious charac-
47 teristics may:
48 a. Cause, or significantly contribute to an increase in mortality or
49 an increase in serious irreversible or incapacitating reversible
50 illness; or
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1 b. Pose a substantial present or potential hazard to human health or
2 the environment when improperly treated, stored, transported, disposed
3 or otherwise managed] article and any substance which appears on the
4 list promulgated pursuant to section 37-0103 of this chapter; provided,
5 however, that the term "hazardous waste" does not include:
6 a. Natural gas, natural gas liquids, liquefied natural gas, synthetic
7 gas usable for fuel, or mixtures of natural gas and such synthetic gas;
8 nor
9 b. The residue of emissions from the engine exhaust of a motor vehi-
10 cle, rolling stock, aircraft, vessel, or pipeline pumping station
11 engine; nor
12 c. Source, byproduct, or special nuclear material from a nuclear inci-
13 dent, as those terms are defined in the Atomic Energy Act of 1954, if
14 such release is subject to requirements with respect to financial
15 protection established under section 170 of such act (42 U.S.C. 2210)
16 or, for the purpose of section 104 of the comprehensive environmental
17 response, compensation and liability act of 1980 (42 U.S.C. 9604) or any
18 other response action, any source, byproduct, or special nuclear materi-
19 al from any processing site designated under section 102(a)(1) or 302(a)
20 of the Uranium Mill Tailings Radiation Control Act of 1978 (42 U.S.C.
21 7912(a)(1) or 7942(a)); nor
22 d. Petroleum as defined in section one hundred seventy-two of the
23 navigation law, even if appearing on the list promulgated pursuant to
24 section 37-0103 of this chapter.
25 3. "Inactive hazardous waste disposal site remedial program" means
26 activities undertaken to eliminate, remove, abate, control or monitor
27 health and/or environmental hazards or potential hazards in connection
28 with inactive hazardous waste disposal sites or to treat or dispose of
29 wastes and waste contaminated materials from such sites including, but
30 not limited to, grading, contouring, trenching, grouting, capping, exca-
31 vation, transporting, incineration, chemical treatment, biological
32 treatment or construction of leachate collection and treatment facili-
33 ties. The department may include institutional controls and/or engi-
34 neering controls as components of an inactive hazardous waste disposal
35 site remedial program but only if the owner of such real property annu-
36 ally submits to the department a written statement certifying under
37 penalty of perjury that the institutional controls and engineering
38 controls employed to remediate such contamination are unchanged from the
39 previous certification and that nothing has occurred that would consti-
40 tute a violation of any of such controls, and gives access to such real
41 property reasonable under the circumstances to evaluate continued main-
42 tenance of such controls. The department shall establish and maintain a
43 database with relevant information on such controls and shall make such
44 information available for public inspection at the office of the county
45 clerk or register for each county and at the office of the town clerk
46 for each town in Suffolk and Nassau counties.
47 4. "Person" means an individual, trust, firm, joint stock company,
48 corporation, partnership, association, state, municipality, commission,
49 political subdivision of a state, public benefit corporation or any
50 interstate body.
51 a. Such term includes any person owning or operating an inactive
52 hazardous waste disposal site but does not include a person that is a
53 lender that, without participating in the management of such site, holds
54 indicia of ownership primarily to protect the security interest of the
55 person in such site; nor does it include a person that is a lender that
56 did not participate in management of such site prior to foreclosure,
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1 notwithstanding that the person forecloses on such site and after fore-
2 closure, sells, re-leases (in the case of a lease finance transaction),
3 or liquidates such site, maintains business activities, winds up oper-
4 ations, undertakes in a non-negligent manner remedial actions under the
5 direction of the department, with respect to such site, or takes any
6 other measure to preserve, protect, or prepare such site prior to sale
7 or disposition, if the person seeks to sell, re-lease (in the case of a
8 lease finance transaction), or otherwise divest the person of such site
9 at the earliest practicable commercially reasonable time, on commercial-
10 ly reasonable terms, taking into account market conditions and legal and
11 regulatory requirements. For purposes of this paragraph:
12 (i) the term "participate in management" means actually participating
13 in the management or operational affairs of such site; and does not
14 include merely having the capacity to influence, or the unexercised
15 right to control, such site's operations;
16 (ii) a person that is a lender and that holds indicia of ownership
17 primarily to protect a security interest in such site shall be consid-
18 ered to participate in management only if, while the borrower is still
19 in possession of such site, the person exercises decisionmaking control
20 over the environmental compliance related to such site, such that the
21 person has undertaken responsibility for the hazardous waste handling or
22 disposal practices related to such site; or exercises control at a level
23 comparable to that of a manager of such site, such that the person has
24 assumed or manifested responsibility for the overall management of such
25 site encompassing day-to-day decisionmaking with respect to environ-
26 mental compliance; or over all or substantially all of the operational
27 functions (as distinguished from financial or administrative functions)
28 of such site other than the function of environmental compliance;
29 (iii) the term "participate in management" does not include performing
30 an act or failing to act prior to the time at which a security interest
31 is created in such site;
32 (iv) the term "participate in management" does not include holding a
33 security interest or abandoning or releasing a security interest;
34 including in the terms of an extension of credit, or in a contract or
35 security agreement relating to the extension, a covenant, warranty, or
36 other term or condition that relates to environmental compliance; moni-
37 toring or enforcing the terms and conditions of the extension of credit
38 or security interest; monitoring or undertaking one or more inspections
39 of such site; requiring a response action or other lawful means of
40 addressing the release or threatened release of a hazardous waste in
41 connection with such site prior to, during, or on the expiration of the
42 term of the extension of credit; providing financial or other advice or
43 counseling in an effort to mitigate, prevent, or cure default or diminu-
44 tion in the value of such site; restructuring, renegotiating, or other-
45 wise agreeing to alter the terms and conditions of the extension of
46 credit or security interest; exercising forbearance; exercising other
47 remedies that may be available under applicable law for the breach of a
48 term or condition of the extension of credit or security agreement; or
49 conducting in a non-negligent manner a remedial action directly or under
50 the direction of the department, if the actions do not rise to the level
51 of participating in management (within the meaning of subparagraphs (i)
52 and (ii) of this paragraph);
53 (v) the term "extension of credit" includes a lease finance trans-
54 action in which the lessor does not initially select such leased site
55 and does not during the lease term control the daily operations or main-
56 tenance of such site; or that conforms with regulations issued by the
S. 6292 6 A. 9292
1 appropriate federal banking agency (as defined in 12 USC section 1813)
2 or the superintendent of banks or with regulations issued by the
3 National Credit Union Administrative Board, as appropriate;
4 (vi) the term "financial or administrative function" includes a func-
5 tion such as that of a credit manager, accounts payable officer,
6 accounts receivable officer, personnel manager, comptroller, or chief
7 financial officer, or a similar function;
8 (vii) the terms "foreclosure" and "foreclose" mean, respectively,
9 acquiring and to acquire, such site through purchase at sale under a
10 judgment or decree, power of sale, or nonjudicial foreclosure sale; a
11 deed in lieu of foreclosure, or similar conveyance from a trustee; or
12 repossession, if such site was security for an extension of credit
13 previously contracted; conveyance pursuant to an extension of credit
14 previously contracted, including the termination of a lease agreement;
15 or any other formal or informal manner by which the person acquires, for
16 subsequent disposition, title to or possession of such site in order to
17 protect the security interest of the person;
18 (viii) the term "lender" means an insured depository institution (as
19 defined in 12 USC Section 1813); an insured credit union (as defined in
20 12 USC section 1752); a bank or association chartered under the Farm
21 Credit Act of 1971 (12 U.S.C. 2001 et seq.); a leasing or trust company
22 that is an affiliate of an insured depository institution; any person
23 (including a successor or assignee of any such person) that makes a bona
24 fide extension of credit to or takes or acquires a security interest
25 from a nonaffiliated person; the Federal National Mortgage Association,
26 the Federal Home Loan Mortgage Corporation, the Federal Agricultural
27 Mortgage Corporation, or any other entity that in a bona fide manner
28 buys or sells loans or interests in loans; a person that insures or
29 guarantees against a default in the repayment of an extension of credit,
30 or acts as a surety with respect to an extension of credit, to a nonaf-
31 filiated person; and a person that provides title insurance and that
32 acquires such site as a result of assignment or conveyance in the course
33 of underwriting claims and claims settlement;
34 (ix) the term "operational function" includes a function such as that
35 of a facility or plant manager, operations manager, chief operating
36 officer, or chief executive officer; and
37 (x) the term "security interest" includes a right under a mortgage,
38 deed of trust, assignment, judgment lien, pledge, security agreement,
39 factoring agreement, or lease and any other right accruing to a person
40 to secure the repayment of money, the performance of a duty, or any
41 other obligation by a nonaffiliated person.
42 b. Such term includes any person owning or operating an inactive
43 hazardous waste disposal site but does not include the state of New York
44 or a public corporation which acquired, and thereafter retained without
45 participating in the management of such site, ownership or control
46 involuntarily by virtue of its function as sovereign. Neither the state
47 of New York nor any public corporation shall incur under this chapter
48 any liability as to matters within the jurisdiction of the department as
49 a result of actions taken in response to an emergency created by the
50 release or threatened release of hazardous waste by another person,
51 provided that such actions by the state or public corporation did not
52 constitute reckless, willful, wanton or intentional misconduct. As used
53 in this paragraph:
54 (i) "public corporation" means a public corporation as defined in the
55 general construction law;
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1 (ii) involuntary acquisition of ownership or control includes, but is
2 not limited to, the following:
3 (A) acquisitions by the state or a public corporation in its capacity
4 as sovereign, including acquisitions pursuant to abandonment
5 proceedings, or escheat, or any other circumstance of involuntary acqui-
6 sition in its capacity as sovereign;
7 (B) acquisitions by the state or a public corporation, or its agent,
8 acting as a conservator or receiver pursuant to a clear and direct stat-
9 utory mandate or regulatory authority;
10 (C) acquisitions of assets through foreclosure and its equivalents, or
11 otherwise, by the state or a public corporation in the course of admin-
12 istering a loan, loan guarantee or loan insurance program;
13 (D) acquisitions by the state or a public corporation pursuant to
14 seizure or forfeiture authority; and
15 (E) acquisitions by the state or a public corporation as the result of
16 tax delinquency proceedings, provided, that such ownership or control is
17 not retained primarily for investment purposes;
18 (iii) "management participation" means that the state or public corpo-
19 ration is actually participating in the management or operation of the
20 property but does not include the mere capacity to influence, ability to
21 influence or unexercised right to control the operation of the proper-
22 ty.
23 Nothing contained in this paragraph affects the applicability of para-
24 graph a of this subdivision in favor of a holder of a security interest
25 according to the terms thereof.
26 c. Such term includes any person owning or operating an inactive
27 hazardous waste disposal site, including a fiduciary; provided, however,
28 that such liability on the part of a fiduciary shall not exceed the
29 assets held in the fiduciary capacity if such person is not liable inde-
30 pendently of such person's ownership as a fiduciary or actions taken in
31 a fiduciary capacity including, but not limited to, the fiduciary negli-
32 gently causing or contributing to the release or threatened release of
33 hazardous waste at such site.
34 (i) For purposes of this paragraph:
35 (A) the term "fiduciary" means a person acting for the benefit of
36 another party as a bona fide trustee; executor; administrator; custo-
37 dian; guardian of estates or guardian ad litem; receiver; conservator;
38 committee of estates of incapacitated person; personal representative;
39 trustee (including a successor to a trustee) under an indenture agree-
40 ment, trust agreement, lease, or similar financing agreement, for debt
41 securities, certificates of interest or certificates of participation in
42 debt securities, or other forms of indebtedness as to which the trustee
43 is not, in the capacity of trustee, the lender; or representative in any
44 other capacity that the department, after providing public notice,
45 determines to be similar to the various capacities previously described
46 in this paragraph; and does not include either a person that is acting
47 as a fiduciary with respect to a trust or other fiduciary estate that
48 was organized for the primary purpose of, or is engaged in, actively
49 carrying on a trade or business for profit unless the trust or other
50 fiduciary estate was created as part of, or to facilitate, one or more
51 estate plans or because of the incapacity of a natural person or a
52 person that acquires ownership or control of a property with the objec-
53 tive purpose of avoiding liability of the person or any other person.
54 (B) the term "fiduciary capacity" means the capacity of a person in
55 holding title to a property, or otherwise having control of or an inter-
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1 est in a property, pursuant to the exercise of the responsibilities of
2 the person as a fiduciary.
3 (ii) Nothing in this paragraph affects the rights or immunities or
4 other defenses that are available under law that are applicable to a
5 person subject to this subdivision; or creates any liability for a
6 person or a private right of action against a fiduciary or any other
7 person.
8 (iii) Nothing in this paragraph applies to a person if that person
9 acts in a capacity other than that of a fiduciary or in a beneficiary
10 capacity and in that capacity, directly or indirectly benefits from a
11 trust or fiduciary relationship; or is a beneficiary and a fiduciary
12 with respect to the same fiduciary estate and as a fiduciary, receives
13 benefits that exceed customary or reasonable compensation, and inci-
14 dental benefits, permitted under other applicable law.
15 (iv) This paragraph does not preclude a claim under this chapter
16 against the assets of the estate or trust administered by the fiduciary;
17 or a nonemployee agent or independent contractor retained by a fiduci-
18 ary.
19 d. Such term includes any person owning or operating an inactive
20 hazardous waste disposal site, including an industrial development
21 authority created under the public authorities law, other than one that
22 holds bare legal title to such site; has not participated with any party
23 responsible under law for the remediation of contamination in, on, or
24 from such site to attempt to have such a party avoid its remedial
25 liability; has not exercised any contractual rights it may have or had,
26 if any, under the lease, guarantee, or any other financing agreement
27 pursuant to which the industrial development authority would assume
28 control over the actual operation of the site; and has not taken
29 possession or control of the site. Nothing in this paragraph affects the
30 rights or immunities or other defenses that are available under law that
31 are applicable to an industrial development authority; or creates any
32 liability for a person or a private right of action against an indus-
33 trial development authority or any other person.
34 § 2. Subdivision 1 of section 27-1303 of the environmental conserva-
35 tion law, as added by chapter 282 of the laws of 1979, is amended to
36 read as follows:
37 1. [Each] a. For a period of one year after the effective date of
38 this chapter, each county shall, for the purpose of locating inactive
39 hazardous waste disposal sites as that term was defined on January
40 first, nineteen hundred ninety-nine, survey its jurisdiction to deter-
41 mine the existence and location of suspected inactive hazardous waste
42 disposal sites and shall[, within four months of the effective date of
43 this title,] annually thereafter submit a report to the department
44 describing the location of each such suspected site and the reasons for
45 such suspicion.
46 b. Commencing one year after the effective date of the chapter of the
47 laws of two thousand which added this paragraph, each county shall, for
48 the purpose of locating inactive hazardous waste disposal sites, survey
49 its jurisdiction to determine the existence and location of suspected
50 inactive hazardous waste disposal sites and shall annually thereafter
51 submit a report to the department describing the location of each such
52 suspected site and the reasons for such suspicion.
53 § 3. Paragraph b of subdivision 4 of section 27-1305 of the environ-
54 mental conservation law, as amended by chapter 857 of the laws of 1982
55 and the opening paragraph as amended by chapter 649 of the laws of 1988,
56 is amended to read as follows:
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1 b. The department shall, as part of the registry, assess and, based
2 upon new information received, reassess by March thirty-first of each
3 year, in cooperation with the department of health, the relative need
4 for action at each site to remedy environmental and health problems
5 resulting from the presence of hazardous wastes at such sites; provided,
6 however, that if at the time of such assessment or reassessment, the
7 department has not placed a site in classification 1 or 2, as described
8 in subparagraphs one and two of this paragraph, and such site is the
9 subject of a voluntary agreement pursuant to title fourteen of this
10 article, obligating the person subject to such agreement to, at a mini-
11 mum, eliminate or mitigate all significant threats to the public health
12 and the environment posed by the hazardous waste pursuant to such agree-
13 ment, the department shall defer its assessment or reassessment during
14 the period such person is in compliance with the terms of such agreement
15 and shall assess or reassess such site upon completion of remediation to
16 the department's satisfaction. In making its assessments, the department
17 shall place every site in one of the following classifications:
18 (1) Causing or presenting an imminent danger of causing irreversible
19 or irreparable damage to the public health or environment--immediate
20 action required;
21 (2) Significant threat to the public health or environment--action
22 required;
23 (3) Does not present a significant threat to the public health or
24 environment--action may be deferred;
25 (4) Site properly closed--requires continued management;
26 (5) Site properly closed, no evidence of present or potential adverse
27 impact--no further action required.
28 § 4. Paragraph b of subdivision 1 of section 27-1313 of the environ-
29 mental conservation law is relettered paragraph c and a new paragraph b
30 is added to read as follows:
31 b. The department shall have the authority to require the development
32 and implementation of a department-approved inactive hazardous waste
33 disposal site remedial program; provided, however, that the department
34 will use the following in determining and implementing such remedial
35 program:
36 (i) The objective of such remedial program shall be the protection of
37 public health and the environment, with the minimum objective being to
38 eliminate or mitigate all significant threats to public health and the
39 environment presented by hazardous waste through proper application of
40 scientific and engineering principles and such remedial program must be
41 selected upon due consideration of the following factors:
42 (A) conformance to standards and criteria that are generally applica-
43 ble, consistently applied, and officially promulgated, that are either
44 directly applicable, or that are not directly applicable but are rele-
45 vant and appropriate, unless good cause exists why conformity should be
46 dispensed with, and with consideration being given to guidance deter-
47 mined, after the exercise of engineering judgment, to be applicable;
48 (B) overall protectiveness of public health and the environment;
49 (C) short-term effectiveness;
50 (D) long-term effectiveness;
51 (E) reduction of toxicity, mobility, and volume with treatment;
52 addressing a hot spot of hazardous waste that permanently and signif-
53 icantly reduces the volume, toxicity, and/or mobility of hazardous waste
54 is to be preferred over a method that does not do so. The hierarchy of
55 remedial technologies shall be as set forth under section 27-0105 of
56 this article;
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1 (F) cost;
2 (G) implementability;
3 (H) community acceptance; and
4 (I) land use: the current, intended, and reasonably anticipated future
5 land uses for the property and its surroundings, if ascertainable.
6 (ii) Notwithstanding anything to the contrary in this paragraph, at
7 sites listed pursuant to section 27-1305 of this article as class 1 or
8 2, there shall be a presumption for soil remediation to soil category 2
9 for residential purposes pursuant to section 27-1316 of this title where
10 such remediation is conducted by a person responsible according to
11 applicable principles of statutory or common law liability at a site
12 that is not in active use for industrial or commercial uses and is adja-
13 cent to residential uses. This presumption may be overcome by a written
14 finding by the commissioner after citizen participation consistent with
15 this title.
16 § 5. Paragraph a of subdivision 3 and subdivision 4 of section 27-1313
17 of the environmental conservation law, paragraph a of subdivision 3 as
18 amended by chapter 857 of the laws of 1982 and subdivision 4 as added by
19 chapter 282 of the laws of 1979, are amended to read as follows:
20 a. Whenever the commissioner finds that hazardous wastes at an inac-
21 tive hazardous waste disposal site constitute a significant threat to
22 the environment, he may: (i) order the owner of such site and/or any
23 person responsible for the disposal of hazardous wastes at such site
24 [(i)] to develop an inactive hazardous waste disposal site remedial
25 program, subject to the approval of the department, at such site, and
26 [(ii)] to implement such program within reasonable time limits specified
27 in the order; or (ii) develop and implement a remedial program for such
28 site after a reasonable, but unsuccessful, attempt to obtain the consent
29 of such owner and/or such person to the issuance of an order to develop
30 and implement such remedial program for such site.
31 Such remedial program developed and implemented pursuant to subpara-
32 graph (i) or (ii) of this paragraph shall provide for a reasonable
33 opportunity for submission of written and oral comments regarding, at a
34 minimum, any proposed remedial program; and in accordance with such
35 regulations as it may promulgate, the department may, subject to appro-
36 priation therefor, make grants of up to fifty thousand dollars per site
37 available to a municipality which is not responsible according to appli-
38 cable principles of statutory or common law liability, a community
39 group, and/or such a municipality and a community group in partnership
40 with each other, and which may be affected by a release or threatened
41 release of hazardous waste disposed at such site in order to obtain
42 technical assistance in interpreting existing information with regard to
43 the nature and extent of the contamination at the site and the develop-
44 ment and implementation of such remedial program. To qualify to receive
45 such assistance, a community group must demonstrate that its membership
46 represents the interests of the community affected by such site and a
47 municipality must demonstrate financial need. The proposed recipient
48 must also contribute a percentage of the total grant, to be determined
49 by the department in accordance with such regulations as it may promul-
50 gate, which may be satisfied through money or the cash value of donated
51 supplies or services. Grants awarded under this section may not be used
52 for the purpose of collecting field sampling data. Provided, however,
53 that in the event the commissioner of health shall issue an order pursu-
54 ant to subdivision three of section one thousand three hundred eighty-
55 nine-b of the public health law, such order of the commissioner of
56 health shall supersede any order issued hereunder.
S. 6292 11 A. 9292
1 4. a. Any order issued pursuant to subdivision three of this section,
2 other than one issued on consent of the person who is the subject of
3 such order, shall be issued only after notice and the opportunity for a
4 hearing is provided to persons who may be the subject of such order. The
5 commissioner shall determine which persons are responsible pursuant to
6 said subdivision according to applicable principles of statutory or
7 common law liability. Such persons shall be entitled to raise any statu-
8 tory or common law defense at any such hearing and such defenses shall
9 have the same force and effect at such hearings as they would have in a
10 court of law. In the event a hearing is held, no order shall be issued
11 by the commissioner under subdivision three of this section until a
12 final decision has been rendered. Any such order shall be reviewable
13 pursuant to article seventy-eight of the civil practice law and rules
14 within thirty days after service of such order. The commissioner may
15 request the participation of the attorney general in such hearings.
16 b. There shall be no liability under this section for a person other-
17 wise liable who can establish by a preponderance of the evidence that
18 the significant threat to the environment attributable to hazardous
19 waste disposed at an inactive hazardous waste disposal site was caused
20 solely by an act of God; an act of war; or an act or omission of a third
21 party other than an employee or agent of such person, or than one whose
22 act or omission occurs in connection with a contractual relationship
23 existing directly or indirectly, with such person (except where the sole
24 contractual arrangement arises from a published tariff and acceptance
25 for carriage by a common carrier or rail), if such person establishes by
26 a preponderance of the evidence that such person exercised due care with
27 respect to the hazardous waste concerned, taking into consideration the
28 characteristics of such hazardous waste, in light of all relevant facts
29 and circumstances, and took precautions against foreseeable acts or
30 omissions of any such third party and the consequences that could fore-
31 seeably result from such acts or omissions; or any combination of them.
32 For purposes of this paragraph, the term, "contractual relationship,"
33 includes, but is not limited to, land contracts, deeds or other instru-
34 ments transferring title or possession, unless the real property on
35 which the site concerned is located was acquired by such person after
36 the disposal or placement of the hazardous waste on, in, or at such
37 site, and such person establishes one or more of the circumstances
38 described in subparagraph (i), (ii) or (iii) of this paragraph by a
39 preponderance of the evidence:
40 (i) At the time such person acquired the site such person did not know
41 and has no reason to know that any hazardous waste which is the subject
42 of the significant threat determination was disposed of on, in, or at
43 the site. To establish that such person has no reason to know, such
44 person must have undertaken, at the time of acquisition, all appropriate
45 inquiry into the previous ownership and uses of the property consistent
46 with good commercial or customary practice in an effort to minimize
47 liability. For purposes of the preceding sentence, the commissioner
48 shall take into account any specialized knowledge or experience on the
49 part of such person, the relationship of the purchase price to the value
50 of the property if uncontaminated, commonly known or reasonably ascer-
51 tainable information about the property, the obviousness of the presence
52 or likely presence of contamination at the property, and the ability to
53 detect such contamination by appropriate inspection; or
54 (ii) Such person is a government entity which acquired the site by
55 escheat, or though any other involuntary transfer or acquisition; or
S. 6292 12 A. 9292
1 (iii) Such person acquired the site by inheritance or bequest, and
2 that such person exercised due care with respect to the hazardous waste
3 concerned, taking into consideration the characteristics of such hazard-
4 ous waste, in light of all relevant facts and circumstances and took
5 precautions against foreseeable acts or omissions of any such third
6 party and the consequences that could foreseeably result from such acts
7 or omissions.
8 Nothing in this paragraph shall diminish the liability of any previous
9 owner or operator of the site who would otherwise be liable under this
10 section. Notwithstanding this paragraph, if such person obtained actual
11 knowledge of the release or threatened release of a hazardous waste at
12 the site when such person owned the site and then subsequently trans-
13 ferred ownership of the site to another person without disclosing such
14 knowledge, such person shall be treated as a person responsible for the
15 disposal of hazardous waste at the site and no defense under this para-
16 graph shall be available to such person. Nothing in this paragraph shall
17 affect the liability under this section of a person who, by any act or
18 omission, caused or contributed to the release or threatened release of
19 a hazardous waste which is the subject of such proceeding relating to
20 such site.
21 § 6. Section 27-1313 of the environmental conservation law is amended
22 by adding three new subdivisions 10, 11 and 12 to read as follows:
23 10. a. If, after the commissioner makes the finding described in para-
24 graph a of subdivision three of this section and after expending reason-
25 able efforts, the department is unable to obtain a voluntary commitment
26 by the owner of an inactive hazardous waste disposal site and/or any
27 person responsible for the disposal of hazardous wastes at such site (i)
28 to develop an inactive hazardous waste disposal site remedial program,
29 subject to the approval of the department, at such site, and/or (ii) to
30 implement such program within reasonable time limits and undertake such
31 development and/or implementation, the department may undertake such
32 development or implementation, in which case, subject to paragraphs b
33 and c of this subdivision, there is hereby created a right of the state
34 to recover in any court of competent jurisdiction from such owner and/or
35 responsible person an amount equal to all costs, both direct and indi-
36 rect, respecting such site that the state shall have incurred plus a
37 penalty in an amount no less than one and no more than three times all
38 such costs, both direct and indirect, the state shall have incurred in
39 carrying out same. The department shall not be entitled to such a penal-
40 ty unless it proves by a preponderance of the evidence that it has
41 expended reasonable efforts as set forth in this paragraph. For purposes
42 of this paragraph, the department has expended "reasonable efforts" to
43 obtain such a voluntary commitment if such owner and/or responsible
44 person is informed in writing of the department's offer to negotiate a
45 voluntary commitment and such owner and/or responsible person does not
46 respond to the department's offer; or responds by refusing to negotiate;
47 or starts to negotiate and thereafter discontinues same; or acts in bad
48 faith in the negotiation process and continues not to make such commit-
49 ment after receiving a final written notification from the department
50 that apprizes such owner and/or responsible person that failure to enter
51 into the voluntary commitment will result in the state's recovery of all
52 costs, both direct and indirect, respecting such site that the state
53 shall have incurred plus a penalty in an amount up to three times, but
54 no less than one times, all costs, both direct and indirect, the state
55 shall have incurred in carrying out same.
S. 6292 13 A. 9292
1 b. Notwithstanding paragraph a of this subdivision, such owner and/or
2 responsible person shall only be liable to the state for an amount equal
3 to all costs, both direct and indirect, the state shall have incurred
4 respecting such site if such owner and/or responsible person can estab-
5 lish by a preponderance of the evidence that for good cause shown, it
6 failed and refused to enter into such voluntary commitment with the
7 department.
8 c. Two or more owners and/or responsible persons described in para-
9 graph a of subdivision three of this section may claim contribution
10 among themselves in an action brought in a court of competent jurisdic-
11 tion, and the amount of contribution to which any of them is entitled
12 shall be equal to the excess paid by that responsible person over and
13 above such responsible person's equitable share of costs. However, the
14 amount of contribution to which any of them is entitled shall be three
15 times the excess paid by that responsible person over and above such
16 responsible person's equitable share of costs associated with the carry-
17 ing out of such person's obligations under the voluntary commitment with
18 the department described in paragraph a of this subdivision if one-third
19 of such award shall be paid to the remedial program transfer fund under
20 section ninety-seven-uuu of the state finance law and the court finds
21 that:
22 (i) the contribution defendant is a responsible person for such site;
23 (ii) the contribution plaintiff gave thirty days notice to the
24 contribution defendant of the plaintiff's intention to seek contribution
25 in the event that the contribution defendant declined to participate in
26 the implementation of the contribution plaintiff's voluntary commitment;
27 (iii) the contribution defendant failed or refused to enter into a
28 settlement agreement with the contribution plaintiff; and
29 (iv) the contribution plaintiff entered into a voluntary commitment
30 with the department to remediate the site.
31 d. A person misidentified by the department as an owner and/or respon-
32 sible person but which entered into a voluntary commitment, other than a
33 voluntary commitment pursuant to title fourteen of this article, with
34 the department may recover from the remedial program transfer fund
35 established by section ninety-seven-uuu of the state finance law the
36 costs it shall have incurred that are reasonable in light of the action
37 agreed to be undertaken.
38 e. All monies collected by the state pursuant to this section shall be
39 deposited into the remedial program transfer fund established by section
40 ninety-seven-uuu of the state finance law.
41 11. a. Any person subject to an order issued pursuant to this section
42 or any person that shall have entered into a voluntary agreement with
43 the department under title fourteen of this article may seek in a court
44 of competent jurisdiction contribution from any other person who is a
45 person responsible for the disposal of hazardous waste at an inactive
46 hazardous waste disposal site or at an affected site, as defined by
47 section 27-1401 of this article, for costs incurred in implementing a
48 department-approved inactive hazardous waste disposal site remedial
49 program or in implementing a voluntary agreement. Nothing in this subdi-
50 vision shall be construed to limit, affect, or impair any protections
51 from or limitations on liability provided by the department or other-
52 wise.
53 b. If the costs of measures undertaken at an inactive hazardous waste
54 disposal site or at an affected site for the purpose of addressing
55 hazardous waste or petroleum are increased because of design or imple-
56 mentation considerations or alterations made for the purpose of accommo-
S. 6292 14 A. 9292
1 dating, effecting or advancing the redevelopment or reuse of such site,
2 the amount of such increase shall not be recoverable under paragraph a
3 of this subdivision. Examples of design or implementation considerations
4 or alterations that may be made for the purpose of accommodating,
5 effecting or advancing the redevelopment or reuse of a site include, but
6 are not limited to, such measures as altering the type, amount, quality
7 or aesthetic character of materials used in construction from the type,
8 amount, quality or aesthetic character of materials required to imple-
9 ment a remedial program or voluntary agreement at such site.
10 c. Any other provision of this subdivision notwithstanding, no costs
11 will be deemed unrecoverable under paragraph a of this subdivision
12 because they were expended to achieve a higher level of remediation at
13 an inactive hazardous waste disposal site or affected site than the
14 level required by the department.
15 d. In any action or proceeding brought pursuant to this subdivision,
16 the defendant shall be entitled to raise any statutory or common law
17 defense that he may have.
18 e. In resolving contribution claims brought pursuant to this subdivi-
19 sion, the court may allocate costs among liable parties using such equi-
20 table factors as the court determines are appropriate.
21 f. No action for contribution pursuant to this provision may be
22 commenced more than six years after the later of:
23 (i) the date of judgment in any action under any law, state or feder-
24 al, respecting the costs that are the subject of the claim for contrib-
25 ution; or
26 (ii) the date of the issuance of an order or agreement by the depart-
27 ment respecting the costs that are the subject of the claim for contrib-
28 ution or respecting activities the conduct of which caused the expendi-
29 ture of the costs that are the subject of the claim for contribution.
30 g. The court shall enter a declaratory judgment on liability for costs
31 that will be binding on any subsequent action or actions to recover
32 costs incurred in implementing a department-approved inactive hazardous
33 waste disposal site remedial program, or in implementing a voluntary
34 agreement under title fourteen of this article.
35 h. Nothing contained in this subdivision shall affect any rights to
36 recovery of costs to which any party may be entitled by contract or
37 otherwise under law.
38 12. a. Definition. For purposes of this subdivision, the term "natural
39 resources" means land, fish, wildlife, biota, air, water, ground water,
40 drinking water supplies, and other such resources belonging to, managed
41 by, controlled by, or pertaining to the state of New York.
42 b. Liability. Any owner of an inactive hazardous waste disposal site,
43 and any person responsible for the disposal of hazardous wastes at such
44 site, who shall be liable according to applicable principles of statuto-
45 ry or common law liability and subject to any statutory or common law
46 defense, shall be liable to the state of New York for damages for injury
47 to, destruction of, loss of, or loss of use of natural resources,
48 including the reasonable costs of assessing such injury, destruction,
49 loss, or loss of use resulting from the disposal of hazardous waste at
50 such inactive hazardous waste disposal site. Provided, that there shall
51 be no such liability where the owner or other person responsible demon-
52 strates that the injury to, destruction of, loss of, or loss of use of
53 natural resources complained of were specifically identified as an irre-
54 versible and irretrievable commitment of natural resources in an envi-
55 ronmental impact statement, or other comparable environmental analysis,
56 and the decision to grant a permit or license authorizes such commitment
S. 6292 15 A. 9292
1 of natural resources, and the site was otherwise operating within the
2 terms of its permit or license.
3 c. Damages. The attorney general shall, at the request of the commis-
4 sioner as trustee of such natural resources, commence a civil action to
5 recover such damages on behalf of the people of the state of New York.
6 All damages recovered in any such action shall be paid over to the
7 commissioner for deposit to the credit of the remedial program transfer
8 fund established pursuant to section ninety-seven-uuu of the state
9 finance law. Any assessment of damages to natural resources for
10 purposes of this subdivision made by the commissioner in accordance with
11 such regulations as may be promulgated under section 27-1315 of this
12 title shall have the force and effect of a rebuttable presumption on
13 behalf of the commissioner in any such action.
14 § 7. The environmental conservation law is amended by adding a new
15 section 27-1314 to read as follows:
16 § 27-1314. Covenant not to sue.
17 1. After the successful implementation of an order on consent which
18 provides for the development and implementation of an inactive hazardous
19 waste disposal site remedial program, the person subject to the order
20 shall submit to the department a written certification prepared by an
21 individual licensed or otherwise authorized in accordance with article
22 one hundred forty-five of the education law to practice the profession
23 of engineering who shall have been in charge of the implementation of
24 such remediation undertaken pursuant to such order substantiating that,
25 at a minimum, such remedial activities satisfied the remedial require-
26 ments for the site.
27 2. Upon the department's receipt of such certification, the department
28 shall review the final engineering report and the data submitted pursu-
29 ant to the order as well as any other relevant information regarding the
30 site. The department shall provide the person, upon its satisfaction
31 that the remedial requirements for the site have been achieved, with a
32 covenant not to sue, binding upon the state, for any liability, includ-
33 ing any future liability or claim for the further remediation of hazard-
34 ous waste at or from the site that was the subject of such order except
35 that a person responsible for the site's remediation as of the effective
36 date of the consent order pursuant to applicable principles of statutory
37 and common law liability shall not receive a release for natural
38 resource damages. Additionally, the state nonetheless shall reserve all
39 of its rights concerning, and such covenant shall not extend to, any
40 further investigation or remedial action the department deems necessary,
41 as a result of:
42 a. a failure to comply with the terms and conditions of the order;
43 b. a fraudulent demonstration that the cleanup levels identified in
44 the order were reached;
45 c. a release or threatened release at the site subsequent to the
46 effective date of the order;
47 d. a change in the site's use subsequent to the effective date of the
48 order to a use requiring a lower level of residual contamination unless
49 additional remedial activities are undertaken which shall meet the stan-
50 dard for protection of public health and the environment that applies to
51 remedial actions for such use under this title;
52 e. information received, in whole or in part, after the department's
53 execution of such order, which indicates that the remediation performed,
54 or to be performed, under such order will not be, or is not, protective
55 of public health or the environment for such use of the site; or
S. 6292 16 A. 9292
1 f. the department's determination that the remedy implemented is not
2 protective of public health or the environment.
3 3. The reservation contained in paragraph d of subdivision two of this
4 section shall not be reserved in the event that a person remediates soil
5 contamination to soil category 1, as that term is described in paragraph
6 a of subdivision three of section 27-1316 of this title.
7 4. The reservation contained in paragraph f of subdivision two of this
8 section shall not be reserved for a person who is not responsible for
9 the remediation of the site pursuant to applicable principles of statu-
10 tory or common law liability, or who is liable solely as a result of
11 ownership or operation of the affected site subsequent to the disposal
12 of hazardous waste or the discharge of petroleum, in the event that such
13 person remediates soil contamination to soil category 1, as that term is
14 described in paragraph a of subdivision three of section 27-1316 of this
15 title.
16 5. The covenant not to sue issued pursuant to this section shall
17 extend to the person's successors or assigns through acquisition of
18 title to the site to which the covenant applies and to a person who
19 develops or otherwise occupies the site, provided that such persons act
20 in good faith to adhere to the requirements of such order on consent.
21 However, such covenant does not extend, and cannot be transferred, to a
22 person who is responsible as of the date of the issuance of an order on
23 consent for the remediation of hazardous waste at the site according to
24 applicable principles of statutory or common law liability unless that
25 person was party to the order on which such covenant was based. A notice
26 of the order containing such covenant shall be recorded and indexed as a
27 declaration of covenant in the office of the recording officer for the
28 county or counties where such site is located in the manner prescribed
29 by article nine of the real property law within thirty days of signing
30 the order if the person is an owner or within thirty days of acquiring
31 title to the site if the person is a prospective purchaser.
32 6. The provisions of this title shall not affect an action or a claim,
33 including a claim for contribution, that a person who implements or
34 completes an order on consent executed by such person and the department
35 providing for the development and implementation of an inactive hazard-
36 ous waste disposal site remedial program pursuant to this title has or
37 may have against a third party.
38 7. Nothing in this subdivision shall be construed to affect either the
39 liability of any person with respect to any costs, damages, or investi-
40 gative or remedial activities that are not included in the order; or the
41 department's authority to maintain an action or proceeding against any
42 person who is not subject to the order.
43 8. A person who has settled its liability to the department under this
44 subdivision shall not be liable for claims for contribution regarding
45 matters addressed in the order. Such settlement does not discharge any
46 of the persons responsible under law to investigate and remediate the
47 hazardous waste unless its terms so provide, but it reduces the poten-
48 tial liability of the others by the amount of the settlement.
49 9. Nothing in this subdivision shall be construed to affect the
50 authority of the department to reach settlement with other persons
51 consistent with its authority under applicable law.
52 § 8. Section 27-1315 of the environmental conservation law, as amended
53 by chapter 857 of the laws of 1982, is amended to read as follows:
54 § 27-1315. Rules and regulations.
55 1. The commissioner shall have the power to promulgate rules and regu-
56 lations necessary and appropriate to carry out the purposes of this
S. 6292 17 A. 9292
1 title. Any such regulations shall include provisions which establish the
2 procedures for a hearing pursuant to subdivision four of section 27-1313
3 of this [article] title. Any such provisions shall ensure a division of
4 functions between the commissioner, the staff who present the case and
5 any hearing officers appointed. In addition, any such regulations shall
6 set forth findings to be based on a factual record which must be made
7 before the commissioner determines that a significant threat to the
8 environment exists. Rules and regulations promulgated pursuant to this
9 title shall be subject to the approval of a board which shall be known
10 as the inactive hazardous waste disposal site regulation review board
11 which shall have the same members, rules and procedures as the state
12 environmental board.
13 2. Such rules and regulations of the department as shall be in effect
14 on the effective date of the chapter of the laws of two thousand which
15 added this subdivision that shall have been promulgated to carry out the
16 purposes of this title shall be deemed to be revised, as of the effec-
17 tive date of the chapter of the laws of two thousand which added this
18 subdivision, to include the definition of "hazardous waste" as it
19 appears in section 27-1301 of this title.
20 § 9. Section 27-1316 of the environmental conservation law is REPEALED
21 and a new section 27-1316 is added to read as follows:
22 § 27-1316. Soil cleanup levels.
23 1. The commissioner shall establish a technical advisory panel. The
24 membership of the panel shall be appointed by the commissioner and the
25 commissioner of health and shall include representation from the public
26 health advocacy community, the environmental advocacy community, the
27 business community, municipalities, and others as deemed appropriate by
28 the commissioner. The commissioner and the commissioner of the depart-
29 ment of health shall be co-chairs of such panel. None of the appointed
30 members shall be officers or employees of any state department or agen-
31 cy. Each member shall have experience in risk assessment methodologies,
32 remediation technologies, or other appropriate scientific, technical, or
33 other relevant expertise in regard to the remediation of contaminated
34 sites. All meetings of the technical advisory panel shall be open to the
35 public. The recommendations of the technical advisory panel shall be
36 subject to public comment.
37 2. The panel shall provide advice on the development of, and recom-
38 mend, soil clean-up levels which provide for a multi-category approach
39 for the remediation of soil contamination, as set forth in subdivision
40 three of this section, at inactive hazardous waste disposal sites, sites
41 subject to a voluntary agreement under title fourteen of this article,
42 and cleanup and removal actions under article twelve of the navigation
43 law.
44 3. In the development of soil cleanup levels, the technical advisory
45 panel shall consider the following as the basis for the soil cleanup
46 levels: the cancer and non-cancer human health effects; background
47 concentrations; exposure to the same contaminant from other routes; the
48 strength of the toxicological data base; sensitive populations, includ-
49 ing children; protection of groundwater for its classified use, surface
50 water, air (including indoor air); and protection of ecological
51 resources, including fish and wildlife. In addition, the cumulative
52 effects of contaminants and the possibility that some contaminants may
53 act through similar toxicological mechanisms shall be considered. Where
54 toxicological, exposure or other pertinent data are inadequate or non-
55 existent for a specific chemical, the experiences under the existing
56 state remedial programs shall be considered. The goals for the level of
S. 6292 18 A. 9292
1 risk associated with soil cleanup levels for individual contaminants are
2 an excess cancer risk of one in one million for carcinogenic end points
3 and a hazard index of one for non-cancer end points for each soil cate-
4 gory.
5 a. Soil category 1: cleanup levels that will be protective of public
6 health and the environment that would allow the site to be used for any
7 purpose without restriction and without reliance on institutional
8 controls or engineering controls.
9 b. Soil category 2: cleanup levels that will be protective of public
10 health and the environment for the site's current, intended, or reason-
11 ably anticipated residential, commercial, or industrial use and with
12 consideration of use of institutional or engineering controls to reach
13 such levels.
14 c. Soil category 3: a process to determine cleanup levels that will be
15 protective of public health and the environment using site specific data
16 for the site's current, intended or reasonably anticipated residential,
17 commercial, or industrial use.
18 4. The technical advisory panel shall submit its recommendations with-
19 in eighteen months from the date of the first meeting of such technical
20 advisory panel.
21 5. After the close of the public comment period on the recommendations
22 of the technical advisory panel, the commissioner and the commissioner
23 of health, where appropriate, shall promulgate regulations setting forth
24 the soil cleanup levels, taking into consideration such recommendations
25 and any other information deemed relevant by the department and the
26 department of health.
27 6. The department shall determine cleanup levels for contaminants in
28 the soil using site specific data until the commissioner promulgates
29 rules and regulations pursuant to this section and thereafter shall use
30 the soil cleanup levels set forth in such rules and regulations, as may
31 be amended.
32 § 10. Article 27 of the environmental conservation law is amended by
33 adding a new title 14 to read as follows:
34 TITLE 14
35 VOLUNTARY REMEDIATION ACT
36 Section 27-1401. Definitions.
37 27-1403. Request for participation.
38 27-1405. Determination of eligibility.
39 27-1407. Voluntary agreement requirements.
40 27-1409. Citizen participation/public notification.
41 27-1411. Covenant not to sue.
42 27-1413. Remediation certificate.
43 27-1415. Payment of state costs.
44 § 27-1401. Definitions.
45 1. "Affected person" means a person whose request to participate in
46 the voluntary remediation program under this title has been accepted by
47 the department for consideration.
48 2. "Affected site" means an area or structure where hazardous waste
49 and/or petroleum has been deposited, disposed of, placed, or otherwise
50 come to be located that is not a site on the National Priorities List
51 established under authority of 42 U.S.C.A. §9605, nor subject to
52 enforcement action, nor subject to a permit issued pursuant to titles
53 seven or nine of this article.
54 3. "Enforcement action" means:
55 a. action under this article, under article seventy-one of this chap-
56 ter, under article twelve of the navigation law, or under the criminal
S. 6292 19 A. 9292
1 procedure law, the purpose of which includes requiring the subject of
2 such action to remove or remediate hazardous waste or petroleum. An
3 enforcement action as defined in this paragraph shall commence against a
4 particular person upon commencement of enforcement under article seven-
5 ty-one of this chapter, or upon issuance of an accusatory instrument as
6 that term is defined in section 1.20 of the criminal procedure law; or
7 b. action under federal law the purpose of which includes requiring
8 the subject of such action to remove or remediate hazardous waste or
9 petroleum. An enforcement action as defined in this paragraph shall
10 commence against a particular person upon issuance of any notification
11 that requires the removal or remediation of hazardous waste or petroleum
12 that is issued pursuant to federal law.
13 4. "Hazardous waste" means hazardous waste as defined in section
14 27-1301 of this article.
15 5. "Person" means an individual, trust, firm, joint stock company,
16 corporation, partnership, association, state, municipality, commission,
17 political subdivision of a state, public benefit corporation or any
18 interstate body.
19 6. "Petroleum" means petroleum as defined in section one hundred
20 seventy-two of the navigation law, even if appearing on the list promul-
21 gated pursuant to section 37-0103 of this chapter.
22 7. "Preliminary environmental assessment" means a written report
23 submitted as part of a request to participate in the voluntary remedi-
24 ation program within the department under this title which shall contain
25 the information described in subdivision two of section 27-1403 of this
26 title.
27 8. "Proposed voluntary agreement" means an agreement executed in
28 accordance with this title by an affected person but not by the depart-
29 ment concerning the remediation of an affected site.
30 9. "Remediation" or "remedial action" means actions taken to address a
31 release or threatened release of hazardous waste into the environment,
32 and may include the investigation of such release or threatened release
33 in order to determine how such release or threatened release should be
34 addressed.
35 10. "State costs" means all those costs, obligations, commitments, or
36 undertakings associated with the administration or oversight responsi-
37 bilities of the department, the department of health, or any other state
38 agency attributable to carrying out the investigation and/or remediation
39 of an affected site under a voluntary agreement, as described in this
40 title. Such expenses shall include administrative expenses (wages and
41 salaries), fringe benefits, overhead, supplies and materials, equipment,
42 travel and utilities.
43 11. "Voluntary agreement" means an agreement executed in accordance
44 with this title by an affected person and the department concerning the
45 investigation of the nature and extent of actual, threatened, or
46 suspected hazardous waste and/or petroleum present at or from an
47 affected site; an agreement concerning the remediation of an affected
48 site; or an agreement concerning both the investigation and remediation
49 of an affected site.
50 § 27-1403. Request for participation.
51 1. A person who desires to participate in the voluntary remediation
52 program under this title concerning a particular affected site shall
53 submit a request to the department.
54 2. Such request shall be on a form provided by the department and
55 shall contain general information concerning such person and such
56 person's relation to the affected site, a description of the affected
S. 6292 20 A. 9292
1 site, and a copy of a preliminary environmental assessment concerning
2 such affected site that shall include, but not be limited to:
3 a. a review of any relevant prior environmental studies, property
4 assessments, or geological studies of such affected site;
5 b. a legal description of such affected site;
6 c. the physical characteristics of such affected site;
7 d. the compliance history of any operations at such affected site to
8 the extent the history is known by such person;
9 e. a review of any existing aerial photographs of such affected site
10 that may indicate its prior uses;
11 f. if possible, interviews with any employee who may have knowledge of
12 environmental conditions at such affected site;
13 g. an inspection of such affected site sufficient to evaluate site
14 conditions and remedial needs;
15 h. an identification of the past, current, intended, and reasonably
16 anticipated future uses of such affected site; and
17 i. any other relevant information concerning the potential for human
18 and environmental exposures to contamination at such affected site.
19 3. The department shall determine whether such affected site should be
20 included in the registry of inactive hazardous waste disposal sites as
21 required by section 27-1305 of this article. If the department deter-
22 mines that such affected site is eligible for inclusion in the registry
23 as a classification 1 or 2 site, and if the affected person commits to
24 enter into a voluntary agreement pursuant to this title which requires
25 the elimination or mitigation of all significant threats to public
26 health and the environment posed by the hazardous waste, the department
27 shall defer including the affected site in the registry and shall
28 continue to defer such site for so long as the affected person is in
29 compliance with the terms of a voluntary agreement.
30 § 27-1405. Determination of eligibility.
31 1. The department shall use its best efforts to notify the person
32 requesting participation in the voluntary remediation program within
33 sixty days after receiving such request pursuant to section 27-1403 of
34 this title that such request is either accepted or rejected.
35 2. The department shall reject such request if:
36 a. the request is submitted by the owner and/or any person responsible
37 for the disposal of hazardous waste according to applicable principles
38 of statutory or common law liability at an affected site which is listed
39 in the registry of inactive hazardous waste disposal sites under section
40 27-1305 of this article and given a classification as described in
41 subparagraph one or two of paragraph b of subdivision four of such
42 section;
43 b. the request does not contain the information required pursuant to
44 subdivision two of section 27-1403 of this title in sufficient detail to
45 assess the conditions of the affected site;
46 c. the department determines that there is an enforcement action as
47 defined under this title pending against the person requesting partic-
48 ipation in the voluntary remediation program; or
49 d. the department, based on the preliminary environmental assessment
50 and/or other information the department possesses, determines that the
51 request is for a site which does not meet the definition of "affected
52 site" pursuant to section 27-1401 of this title.
53 3. If such request is rejected pursuant to paragraph b of subdivision
54 two of this section, the department shall provide to the person making
55 such request, in writing, a list of the additional information required
56 for the department to determine eligibility under this title.
S. 6292 21 A. 9292
1 § 27-1407. Voluntary agreement requirements.
2 1. a. The voluntary agreement shall include, but not be limited to,
3 the following provisions:
4 (i) one requiring such affected person to pay for state costs
5 provided, however, that with respect to an affected site which the
6 department has determined constitutes a significant threat to public
7 health or the environment, the department may include a provision
8 requiring the affected person to provide a technical assistance grant,
9 as described in subdivision three of section 27-1313 of this article and
10 under the conditions described therein, to an eligible party in accord-
11 ance with procedures established under such program, with the cost of
12 such a grant serving as an offset against such state costs;
13 (ii) one resolving disputes arising from the evaluation, analysis, and
14 oversight of the implementation of the workplan as described in para-
15 graph b of this subdivision;
16 (iii) one requiring an indemnification provision which holds the state
17 harmless from any claim, suit, action, and cost of every name and
18 description arising out of or resulting from the fulfillment or
19 attempted fulfillment of the agreement except for those claims, suits,
20 actions, and costs arising from the state's negligence or willful or
21 intentional misconduct;
22 (iv) one authorizing the department to terminate a voluntary agreement
23 at any time during the implementation of such agreement if the affected
24 person implementing such agreement fails to comply substantially with
25 such agreement's terms and conditions;
26 (v) one exempting such affected person from the requirement to obtain
27 any permit issuable by the department for any activity satisfying the
28 following criteria:
29 (1) the activity is conducted on the affected site or on different
30 premises that are under common control or are contiguous to or phys-
31 ically connected with the affected site and the activity manages exclu-
32 sively hazardous waste or petroleum from such affected site,
33 (2) the activity satisfies all substantive technical requirements
34 applicable to like activity conducted pursuant to a permit as determined
35 by the department, and
36 (3) the activity is a component of the remediation conducted under
37 such voluntary remediation agreement;
38 (vi) one stating that the department shall not consider such affected
39 person an operator of such affected site based solely upon execution or
40 implementation of such agreement for purposes of remediation liability;
41 and
42 (vii) the inclusion of other conditions considered necessary by the
43 department or the affected person concerning the effective and efficient
44 implementation of this title, and, where the affected person is respon-
45 sible for the disposal of hazardous waste or the discharge of petroleum
46 according to applicable principles of statutory or common law liability,
47 unless such liability arises solely from ownership or operation of the
48 affected site subsequent to the disposal of hazardous waste or the
49 discharge of petroleum, the department shall include provisions relating
50 to recovery of state costs incurred before the effective date of such
51 voluntary agreement.
52 b. The proposed voluntary agreement shall also contain a workplan that
53 shall include, but not be limited to, the following requirements:
54 (i) a work plan for the investigation of the affected site shall
55 provide for the investigation and characterization of the nature and
56 extent of the contamination within the boundaries of the real property
S. 6292 22 A. 9292
1 where the contamination was released into the environment, provided,
2 however, that an affected person that is responsible for the disposal of
3 hazardous waste or the discharge of petroleum under applicable princi-
4 ples of statutory or common law liability, unless such liability arises
5 solely from ownership or operation of the affected site subsequent to
6 the disposal of hazardous waste or the discharge of petroleum, shall
7 also be required to investigate and characterize the nature and extent
8 of contamination emanating from such real property. An affected person
9 not responsible for the disposal of hazardous waste or the discharge of
10 petroleum under applicable principles of statutory or common law liabil-
11 ity, or a person that is liable solely as a result of ownership or oper-
12 ation of the affected site subsequent to the disposal of hazardous waste
13 or the discharge of petroleum, must perform an exposure assessment
14 consisting of an evaluation of the pathways by which a receptor could be
15 exposed to such contamination, in order to determine the risk to public
16 health and the environment from any contamination emanating from such
17 real property;
18 (ii) a work plan for the remediation of the affected site shall
19 provide for the development and implementation of a remedial program for
20 such contamination within the boundaries of such affected site, provided
21 however, that an affected person that is responsible for the disposal of
22 hazardous waste or the discharge of petroleum under applicable princi-
23 ples of statutory or common law liability, except an affected person
24 whose liability arises solely from ownership or operation of the
25 affected site subsequent to the disposal of hazardous waste or the
26 discharge of petroleum, shall also be required to provide in such work-
27 plan for the development and implementation of a remedial program for
28 contamination related to the affected site but located outside the boun-
29 daries of the affected site. The objective of any such remedial program
30 shall be the protection of public health and the environment, with the
31 minimum objective being to eliminate or mitigate all significant threats
32 to public health and the environment presented by the hazardous waste or
33 petroleum through proper application of scientific and engineering prin-
34 ciples and such remedial program must be selected upon due consideration
35 of the evaluation factors set forth in paragraph b of subdivision one of
36 section 27-1313 of this article. The work plan must contain an analysis
37 that such proposed remedy was assessed using such evaluation factors.
38 The workplan must provide that the soil cleanup levels be consistent
39 with the soil cleanup levels set forth in rules and regulations, as
40 amended, promulgated pursuant to section 27-1315 and subdivision five of
41 section 27-1316 of this article; until such regulations are promulgated,
42 the department shall determine cleanup levels for contaminants in soil
43 using site specific data. The department may approve a work plan that
44 includes institutional controls and/or engineering controls as compo-
45 nents of a remedial program but only if the work plan requires the owner
46 of such real property to annually submit to the department a written
47 statement certifying under penalty of perjury that the institutional
48 controls and engineering controls employed to remediate such contam-
49 ination are unchanged from the previous certification and that nothing
50 has occurred that would constitute a violation of any such controls, and
51 gives access to such real property reasonable under the circumstances to
52 evaluate continued maintenance of such controls. The department shall
53 establish and maintain a database with relevant information on such
54 controls and shall make such information available for public inspection
55 at the office of the county clerk or register for each county and at the
S. 6292 23 A. 9292
1 office of the town clerk for each town in Suffolk and Nassau counties;
2 and
3 (iii) at any time during the evaluation of a proposed workplan, the
4 department may request that an affected person submit additional or
5 corrected information to the department. An affected person shall either
6 comply with the request or withdraw such proposed workplan from consid-
7 eration.
8 2. For a voluntary agreement requiring remediation, the affected
9 person shall cause a final remediation report to be prepared and submit-
10 ted to the department that identifies the remediation activities
11 completed pursuant to the voluntary agreement. Such final remediation
12 report, at a minimum, shall demonstrate, as appropriate, that:
13 a. there is no contamination by hazardous waste or petroleum of the
14 soil, sediment, surface water, or groundwater on or underlying such
15 affected site in concentrations exceeding the requirements for remedi-
16 ation set forth in the department-approved work plan for remediation of
17 such affected site;
18 b. if remediation was conducted in accordance with such voluntary
19 agreement and such agreement provides for a timetable by which the
20 requirements for remediation set forth in the department-approved work
21 plan for remediation of such affected site will be achieved, the data
22 submitted to the department demonstrate that such applicable remediation
23 requirements will be achieved in accordance with the timeframes estab-
24 lished in such agreement;
25 c. if the remediation relies on restrictions on the use of such
26 affected site to achieve the requirements for remediation set forth in
27 the department-approved work plan for remediation of such affected site,
28 such affected person has caused such use restrictions to be recorded and
29 indexed as a declaration of restrictions in the office of the recording
30 officer for the county or counties where such affected site is located
31 in the manner prescribed by article nine of the real property law and
32 documented such recordation and indexing. Such declaration of
33 restriction shall contain the name of the record owner of such affected
34 site along with tax map parcel number or the section, block, and lot
35 number of such affected site; or
36 d. if the remediation was conducted in accordance with such voluntary
37 agreement and such voluntary agreement requires engineering controls
38 that contain or control the contamination at or from such affected site,
39 the department has approved a plan submitted by such affected person for
40 the proper operation and maintenance of those engineering controls.
41 3. If at an affected site being remediated by an affected person who
42 is not responsible for the disposal of hazardous waste or the discharge
43 of petroleum according to applicable principles of statutory or common
44 law liability, or who is liable solely as a result of ownership or oper-
45 ation of the affected site subsequent to the disposal of hazardous waste
46 or the discharge of petroleum, the department determines that hazardous
47 wastes or petroleum at the affected site have migrated from the site and
48 pose a significant threat to public health or the environment due to
49 such migration, the department shall require the person responsible
50 according to applicable principles of statutory or common law liability
51 to conduct the off-site remediation, provided however, the department
52 shall not require an affected person whose liability arises solely from
53 ownership or operation at the affected site subsequent to the disposal
54 of hazardous waste or the discharge of petroleum to conduct such off-
55 site remediation. If such responsible person fails to undertake such
56 off-site remediation, the state is authorized to use moneys from the
S. 6292 24 A. 9292
1 remedial program transfer fund established pursuant to section ninety-
2 seven-uuu of the state finance law to remediate such contamination. The
3 state's costs incurred to remediate such off-site contamination shall be
4 recoverable from the responsible party or parties.
5 4. The commissioner shall use best efforts to approve, modify or
6 reject a proposed voluntary agreement for remediation within sixty days
7 after the end of the comment period or the close of the public meeting
8 provided by section 27-1409 of this title, whichever is later, and after
9 evaluating any comments received.
10 a. If the commissioner rejects such proposed voluntary agreement, the
11 commissioner shall notify the affected person and specify the reasons
12 for rejecting same.
13 b. If the commissioner approves or modifies such proposed voluntary
14 agreement, the commissioner shall notify the affected person, in writ-
15 ing, that the proposed voluntary agreement has been approved or modi-
16 fied. If the commissioner requires a modification, the affected person
17 may agree to modify such proposed voluntary agreement or withdraw it
18 from consideration.
19 5. Upon finalization of the proposed voluntary agreement's provisions,
20 as may be modified, the department and the affected person shall execute
21 a voluntary agreement that shall contain the matters set forth in this
22 title. The affected person shall carry out the terms of the voluntary
23 agreement.
24 6. Nothing herein shall prohibit or limit the department from termi-
25 nating a voluntary agreement at any time during its implementation if
26 the affected person subject to such voluntary agreement fails to comply
27 substantially with such agreement's terms and conditions.
28 7. Nothing herein shall require the department to enter into a volun-
29 tary agreement with an affected party.
30 § 27-1409. Citizen participation/public notification.
31 1. The department shall place a notification of receipt of a request
32 to participate in the voluntary remediation program pursuant to this
33 title in the environmental notice bulletin.
34 2. Upon the department's finalization of a voluntary agreement for
35 investigation, the department must notify individuals, groups
36 and/organizations that have expressed interest in or are affected by the
37 voluntary agreement of such agreement, and must publish a notice in the
38 environmental notice bulletin. Further, upon the satisfactory completion
39 of the investigation performed under such voluntary agreement, the
40 department must notify individuals, groups and/or organizations that
41 have expressed interest in or are affected by the voluntary agreement
42 and publish a notice in the environmental notice bulletin regarding such
43 satisfactory completion.
44 3. Before the department finalizes a proposed voluntary agreement for
45 remediation, the department must notify individuals, groups and organ-
46 izations that have expressed interest in or are affected by the proposed
47 voluntary agreement of the proposed voluntary agreement for remediation
48 and publish a notice requesting comments concerning the proposed volun-
49 tary agreement in the environmental notice bulletin. Such notice shall
50 provide for a forty-five day public comment period following publication
51 of the notice required under this section. The department shall hold a
52 public meeting on the proposed voluntary remediation agreement if the
53 commissioner finds that the affected site constitutes a significant
54 threat to the public health or to the environment.
55 § 27-1411. Covenant not to sue.
S. 6292 25 A. 9292
1 1. After the affected person has successfully implemented a voluntary
2 agreement which provides for the remediation of the affected site, such
3 affected person shall submit to the department a written certification
4 prepared by an individual licensed or otherwise authorized in accordance
5 with article one hundred forty-five of the education law to practice the
6 profession of engineering who shall have been in charge of the implemen-
7 tation of such remediation undertaken pursuant to such agreement
8 substantiating that, at a minimum, such remedial activities satisfied
9 the requirements set forth in paragraph b of subdivision two of section
10 27-1407 of this title.
11 2. Upon the department's receipt of such certification, the department
12 shall review the final engineering report and the data submitted pursu-
13 ant to the voluntary agreement as well as any other relevant information
14 regarding the affected site. The department shall provide the affected
15 person, upon its satisfaction that the remedial requirements for the
16 affected site have been achieved, with a covenant not to sue, binding
17 upon the state, for any liability, including any future liability or
18 claim for the further remediation of hazardous waste or petroleum at or
19 from the affected site that was the subject of such voluntary agreement
20 except that a person responsible for the affected site's remediation
21 pursuant to applicable principles of statutory and common law liability,
22 unless such liability arises solely from ownership or operation of the
23 affected site subsequent to the disposal of hazardous waste or the
24 discharge of petroleum, shall not receive a release for natural resource
25 damages. Additionally, the state nonetheless shall reserve all of its
26 rights concerning, and such covenant shall not extend to, any further
27 investigation or remedial action the department deems necessary, as a
28 result of:
29 a. a failure to comply with the terms and conditions of the voluntary
30 agreement;
31 b. a fraudulent demonstration that the cleanup levels identified in
32 the voluntary agreement were reached;
33 c. a release or threatened release at the affected site subsequent to
34 the effective date of the voluntary agreement;
35 d. a change in the affected site's use subsequent to the effective
36 date of the voluntary agreement to a use requiring a lower level of
37 residual contamination unless additional remedial activities are under-
38 taken which shall meet the standard for protection of public health and
39 the environment that applies to remedial actions for such use under this
40 article;
41 e. information received, in whole or in part, after the department's
42 execution of such voluntary agreement, which indicates that the remedi-
43 ation performed, or to be performed, under such voluntary agreement will
44 not be, or is not, protective of public health or the environment for
45 such use of the affected site; or
46 f. the department determines that the remedy implemented is not
47 protective of public health or the environment.
48 3. The reservation contained in paragraph d of subdivision two of this
49 section shall not be reserved in the event an affected person remediates
50 soil contamination to soil category 1, as that term is described in
51 paragraph a of subdivision three of section 27-1316 of this article.
52 4. The reservation contained in paragraph f of subdivision two of this
53 section shall not be reserved for an affected person who is not respon-
54 sible for the remediation of the site pursuant to applicable principles
55 of statutory or common law liability, or who is liable solely as a
56 result of ownership or operation of the affected site subsequent to the
S. 6292 26 A. 9292
1 disposal of hazardous waste or the discharge of petroleum, in the event
2 that such person remediates soil contamination to soil category 1, as
3 that term is described in paragraph a of subdivision three of section
4 27-1316 of this article.
5 5. The covenant not to sue issued pursuant to this section shall
6 extend to the person's successors or assigns through acquisition of
7 title to the affected site to which the covenant applies and to a person
8 who develops or otherwise occupies the affected site, provided that such
9 persons act in good faith to adhere to the requirements of such volun-
10 tary agreement and workplan. However, such covenant does not extend, and
11 cannot be transferred, to a person who is responsible for the disposal
12 of hazardous waste or the discharge of petroleum according to applicable
13 principles of statutory or common law liability as of the effective date
14 of the voluntary agreement unless that person was party to the voluntary
15 agreement on which such covenant was based. A notice of the agreement
16 containing such covenant shall be recorded and indexed as a declaration
17 of covenant in the office of the recording officer for the county or
18 counties where such affected site is located in the manner prescribed by
19 article nine of the real property law within thirty days of signing the
20 agreement if the person is an owner or within thirty days of acquiring
21 title to the affected site if the person is a prospective purchaser.
22 6. The provisions of this title shall not affect an action or a claim,
23 including a claim for contribution, that a person who implements or
24 completes an agreement executed by such person and the department
25 providing for the remediation of the affected site pursuant to this
26 title has or may have against a third party.
27 7. Nothing in this section shall be construed to affect either the
28 liability of any person with respect to any costs, damages, or investi-
29 gative or remedial activities that are not included in the agreement; or
30 the department's authority to maintain an action or proceeding against
31 any person who is not subject to the agreement.
32 8. A person who has settled its liability to the department under this
33 section shall not be liable for claims for contribution regarding
34 matters addressed in the agreement. Such settlement does not discharge
35 any of the persons responsible under law to investigate and remediate
36 the hazardous waste unless its terms so provide, but it reduces the
37 potential liability of the others by the amount of the settlement.
38 9. Nothing in this section shall be construed to affect the authority
39 of the department to reach settlement with other persons consistent with
40 its authority under applicable law.
41 10. An affected person who implements a voluntary agreement executed
42 by such affected person and the department pursuant to this title shall
43 not be held liable for claims for contribution concerning matters
44 addressed in such voluntary agreement.
45 § 27-1413. Remediation certificate.
46 1. Upon the department's determination pursuant to subdivision two of
47 section 27-1411 of this title that the remedial requirements for the
48 affected site have been achieved, the affected person may apply to the
49 commissioner for a remediation certificate that certifies that the reme-
50 dial requirements for the affected site have been achieved pursuant to
51 this title which would warrant the allowance of a credit under section
52 fourteen of the tax law.
53 2. Such application shall be on a form provided by the department,
54 shall be certified under penalty of perjury, and shall, include but not
55 be limited to, a statement from a certified public accountant detailing
56 the site preparation costs; as that term is defined in section thirteen
S. 6292 27 A. 9292
1 of the tax law, required to be paid or incurred in order to qualify for
2 a remediation certificate.
3 3. The commissioner shall issue a remediation certificate if such
4 affected person is either (i) not a person responsible for the remedi-
5 ation of hazardous waste or the discharge of petroleum at the affected
6 site according to applicable principles of statutory or common law
7 liability, or (ii) a person responsible for the remediation of hazardous
8 waste or the discharge of petroleum at the affected site according to
9 applicable principles of statutory or common law liability if such
10 person's liability arises solely from ownership or operation of the
11 affected site subsequent to the disposal of hazardous waste or the
12 discharge of petroleum.
13 4. Such remediation certificate shall state:
14 a. that the affected person is eligible pursuant to paragraph (i) or
15 (ii) of subdivision three of this section for a credit under section
16 fourteen of the tax law;
17 b. that the affected person has satisfactorily completed the remedial
18 program required by the voluntary agreement. Further, in the event that
19 cleanup of the soil to soil category 2 or soil category 3, as those
20 terms are described in paragraph a of subdivision three of section
21 27-1316 of this article would be protective of public health and the
22 environment in accordance with subparagraph (ii) of paragraph b of
23 subdivision one of section 27-1407 of this title, and the affected
24 person remediated the soil to soil category 1 as that term is described
25 in paragraph a of subdivision three of section 27-1316 of this article,
26 the remediation certificate shall indicate that the affected person is
27 eligible to receive an additional two percent credit pursuant to para-
28 graph four of subdivision (a) of section fourteen of the tax law; and
29 c. the department's determination regarding the amount that the
30 affected person has expended for site preparation costs as that term is
31 defined in section fourteen of the tax law, required to be paid or
32 incurred in order to qualify for a remediation certificate.
33 5. If the affected person has leased the property and such lessee is
34 (i) not a person responsible for the remediation of hazardous waste or
35 the discharge of petroleum at the affected site according to applicable
36 principles of statutory or common law liability, or (ii) a person
37 responsible for the remediation of hazardous waste or the discharge of
38 petroleum at the affected site according to applicable principles of
39 statutory or common law liability if such person's liability arises
40 solely from ownership or operation of the affected site subsequent to
41 the disposal of hazardous wastes or the discharge of petroleum, the
42 remediation certificate shall also include a statement indicating that
43 the lessee is a person as set forth in this subdivision.
44 6. A remediation certificate issued pursuant to subdivision three of
45 this section may be modified or revoked by the commissioner upon a find-
46 ing that:
47 a. the affected person has failed to comply with the terms and condi-
48 tions of the voluntary agreement;
49 b. the affected person fraudulently demonstrated that the cleanup
50 levels identified in the voluntary agreement were reached; or
51 c. there is good cause for such modification or revocation.
52 7. Upon the commissioner's determination pursuant to subdivision three
53 or six of this section, the commissioner shall provide the affected
54 person with notice of such determination and notice of the right to
55 appeal such determination. The commissioner's determination shall be
56 final unless a hearing is requested by certified mail to the commission-
S. 6292 28 A. 9292
1 er within thirty days after receiving notice of such determination.
2 After such hearing the commissioner shall give notice of final determi-
3 nation to such affected person. The commissioner may promulgate regu-
4 lations to effectuate the purposes of this section. The commissioner
5 shall promptly notify the commissioner of taxation and finance when such
6 a determination pursuant to such subdivision six of this section has
7 become final and is no longer subject to judicial appeal.
8 § 27-1415. Payment of state costs.
9 1. Pursuant to timetables contained in the voluntary agreement, the
10 affected person shall pay all state costs incurred in overseeing imple-
11 mentation of such agreement. In addition, if such affected person is
12 responsible for the disposal of hazardous waste or the discharge of
13 petroleum according to applicable principles of statutory or common law
14 liability, unless such liability arises solely from ownership or opera-
15 tion of the affected site subsequent to the disposal of hazardous waste
16 or the discharge of petroleum, such affected person shall pay all costs
17 incurred by the state up to the effective date of such voluntary agree-
18 ment.
19 2. Payment of such state costs identified in subdivision one of this
20 section shall be made to the remedial program transfer fund established
21 pursuant to section ninety-seven-uuu of the state finance law.
22 3. In the event that either the affected person or the department
23 withdraw from a voluntary agreement before such agreement's completion,
24 or upon completion of the activities undertaken pursuant to the volun-
25 tary agreement, all unexpended moneys which the affected person shall
26 have paid into such account shall be reimbursed to the affected person
27 after a final accounting of all claims upon such affected person's
28 payments.
29 § 11. Subdivision 8 of section 52-0101 of the environmental conserva-
30 tion law, as added by chapter 512 of the laws of 1986, is amended to
31 read as follows:
32 8. "Hazardous waste" shall have the definition set forth in [title
33 nine of article twenty-seven] section 27-1301 of this chapter.
34 § 12. Subdivision 1 of section 52-0103 of the environmental conserva-
35 tion law, as amended by chapter 9 of the laws of 1994, is amended to
36 read as follows:
37 1. For remediation of hazardous waste sites, as set forth in title
38 three of this article and for the closure of municipal landfills, as set
39 forth in title five of article fifty-four of this chapter, one billion
40 two hundred million dollars of which[: (i)] up to one hundred million
41 dollars shall be made available for state assistance payments toward the
42 cost of the closure of municipal landfills, as set forth in title five
43 of article fifty-four of this chapter; [and (ii) up to one hundred thou-
44 sand dollars shall be made available for the study of hazardous
45 substance waste disposal sites, as defined in section 27-1316 of this
46 chapter;] and
47 § 13. Subdivision 1 of section 71-2727 of the environmental conserva-
48 tion law, as amended by chapter 671 of the laws of 1986, is amended to
49 read as follows:
50 1. The commissioner, after investigation, notice and an opportunity to
51 be heard, may issue, modify and revoke orders prohibiting violations of
52 any of the provisions of article 27 or 71 or of any rule or regulation
53 promulgated pursuant thereto and requiring the taking of such remedial
54 measures as may be necessary or appropriate. Nothing herein contained
55 shall be deemed to preclude the disposition of any matter within the
56 department's jurisdiction under article twenty-seven of this chapter by
S. 6292 29 A. 9292
1 stipulation, agreed settlement, consent order, default, or other
2 informal method, upon such terms and subject to such conditions and
3 limitations as the commissioner may deem just.
4 § 14. The section heading of section 213 of the civil practice law
5 and rules, as amended by chapter 43 of the laws of 1975, is amended to
6 read as follows:
7 Actions to be commenced within six years: where not otherwise provided
8 for; on contract; on sealed instrument; on bond or note, and mortgage
9 upon real property; by state based on misappropriation of public proper-
10 ty; based on mistake; by corporation against director, officer or stock-
11 holder; based on fraud; by state based on claims pursuant to subdivi-
12 sions ten and eleven of section 27-1313 of the environmental
13 conservation law; by state based on injury to, or destruction of, or
14 loss of, or loss of use of natural resources.
15 § 15. Section 213 of the civil practice law and rules is amended by
16 adding three new subdivisions 9, 10 and 11 to read as follows:
17 9. an action by the state under authority of subdivision ten of
18 section 27-1313 of the environmental conservation law; the time within
19 which the action must be commenced shall be computed from the initiation
20 of physical on-site construction of the remedial program.
21 10. an action for contribution under authority of subdivision eleven
22 of section 27-1313 of the environmental conservation law; the time with-
23 in which such action must be commenced shall be computed from the later
24 of:
25 a. the date of judgment in any action under any law, state or federal,
26 respecting the costs that are the subject of the claim for contribution;
27 or
28 b. the date of the issuance of an order or agreement by the department
29 of environmental conservation respecting the costs that are the subject
30 of the claim for contribution or respecting activities the conduct of
31 which caused the expenditure of the costs that are the subject of the
32 claim for contribution.
33 11. an action under authority of subdivision twelve of section 27-1313
34 of the environmental conservation law; the time within which the action
35 must be commenced shall be computed from the completion of the
36 construction of the inactive hazardous waste disposal site remedial
37 program.
38 § 16. The general municipal law is amended by adding a new section
39 970-r to read as follows:
40 § 970-r. State assistance: brownfield redevelopment area planning. 1.
41 Definitions. a. "Brownfield redevelopment area" is an area where: a
42 number of abandoned, idled or under-utilized properties are clustered in
43 a geographic location; contamination by hazardous waste as defined in
44 section 27-1301 of the environmental conservation law or petroleum as
45 defined in section one hundred seventy-two of the navigation law is
46 suspected of being widespread; and the remediation of any one site
47 would not address all suspected sources of contamination and enable
48 beneficial environmental and economic use.
49 b. A "brownfield redevelopment area plan" is a plan undertaken by a
50 municipality or not-for-profit corporation to develop a strategy to
51 return a brownfield redevelopment area to productive economic use while
52 protecting human health and the environment.
53 2. The secretary of state is authorized to provide technical assist-
54 ance to municipalities and not-for-profit corporations acting in cooper-
55 ation with municipalities, to enhance their capabilities to plan the
56 redevelopment of brownfield redevelopment areas.
S. 6292 30 A. 9292
1 3. Within the limits of appropriations therefor, the secretary of
2 state is authorized to provide, on a competitive basis, financial
3 assistance to municipalities and not-for-profit corporations acting in
4 cooperation with municipalities, to advance plans for the redevelopment
5 of brownfield redevelopment areas, as follows:
6 a. in the preparation of a pre-planning study to develop information
7 necessary for designating a brownfield redevelopment area. Pre-planning
8 activities include, but are not limited to, basic information about the
9 boundaries of the area, the number and size of brownfield sites, the
10 current and anticipated uses of the properties and groundwater in the
11 area, known data about the environmental conditions of the properties,
12 ownership of the sites in the area and other information deemed relevant
13 by the secretary of state. Such study, when completed, shall be submit-
14 ted to the secretary of state. The municipality or not-for-profit
15 corporation with the approval of the municipality may then file a peti-
16 tion requesting designation of the area as a brownfield redevelopment
17 area for the approval of the secretary of state;
18 b. in the preparation of a brownfield redevelopment area plan. Plan-
19 ning activities eligible to receive funding include, but are not limited
20 to, a strategy which defines the end uses of the brownfield redevelop-
21 ment area once the properties have been remediated and revitalized,
22 including any infrastructure needs, and identifies actions required to
23 reach such proposed end-uses, and other information deemed relevant by
24 the secretary of state. Such plan must be formulated in consultation
25 with community based organizations and affected landowners. The munici-
26 pality or not-for-profit corporation with the approval of the munici-
27 pality shall submit such plan for the approval of the secretary of
28 state.
29 c. in the preparation of site assessments of properties owned by a
30 municipality or a party not responsible for the remediation of hazardous
31 waste or petroleum according to applicable principles of statutory or
32 common law liability, or a responsible party according to applicable
33 principles of statutory or common law liability if such person's liabil-
34 ity arises solely from ownership or operation of the site subsequent to
35 the disposal of hazardous waste or the discharge of petroleum in the
36 brownfield redevelopment area. Assessment activities include, but are
37 not limited to, testing of properties to determine the nature and extent
38 of the contamination (including soil and groundwater), environmental
39 assessments, the development of a proposed remediation strategy to
40 address any identified contamination and any other activities deemed
41 appropriate by the secretary in consultation with the commissioner of
42 environmental conservation. Any environmental assessment shall be
43 subject to the review and approval of the commissioner of environmental
44 conservation. State assistance payments shall not exceed seventy-five
45 percent of the cost of such plans. The secretary of state, in consulta-
46 tion with the commissioner of environmental conservation, may enter into
47 a contract with a municipality or not-for-profit corporation, including
48 such terms and conditions as the secretary of state and commissioner of
49 environmental conservation may deem appropriate, to provide the state
50 assistance.
51 4. When determining the eligibility of a municipality or not-for-pro-
52 fit corporation for such assistance, the secretary of state, in consul-
53 tation with the commissioner of environmental conservation and other
54 appropriate agencies, shall consider, among other matters, the follow-
55 ing: benefit to human health, benefit to the environment, the economic
56 benefit to the state (including new employment opportunities and new
S. 6292 31 A. 9292
1 public recreational resources), and the strength of local support.
2 Funding preferences shall be given to proposals for areas: with a demon-
3 strated need for restoration; that would yield economic benefit to the
4 state and create new jobs or a new public resource; that receive a
5 strong level of local support; and where a majority of the properties
6 are owned by a municipality or party not responsible for the remediation
7 of hazardous waste or petroleum according to applicable principles of
8 statutory or common law liability or a responsible party according to
9 applicable principles of statutory or common law liability if such
10 person's liability arises solely from ownership or operation of the site
11 subsequent to the disposal of hazardous waste or the discharge of petro-
12 leum.
13 5. The secretary of state shall provide from available monies techni-
14 cal support to municipalities and not-for-profit corporations to prepare
15 their brownfield development areas program. Such support includes but is
16 not limited to personal and non-personal services.
17 § 17. The navigation law is amended by adding a new section 172-a to
18 read as follows:
19 § 172-a. Liability exclusions. 1. Notwithstanding subdivision thir-
20 teen of section one hundred seventy-two of this article the term "owner
21 or operator" does not include a person that is a lender that, without
22 participating in the management of property, holds indicia of ownership
23 primarily to protect the security interest of the person in that proper-
24 ty; nor does it include a person that is a lender that did not partic-
25 ipate in management of property prior to foreclosure, notwithstanding
26 that the person forecloses on such property and after foreclosure,
27 sells, re-leases (in the case of a lease finance transaction), or liqui-
28 dates the property, maintains business activities, winds up operations,
29 undertakes in a non-negligent manner remedial actions under the direc-
30 tion of the department, with respect to such property, or takes any
31 other measure to preserve, protect, or prepare such property prior to
32 sale or disposition, if the person seeks to sell, re-lease (in the case
33 of a lease finance transaction), or otherwise divest the person of the
34 property at the earliest practicable commercially reasonable time, on
35 commercially reasonable terms, taking into account market conditions and
36 legal and regulatory requirements; provided, however, that such lender
37 shall not make a claim against the fund arising out of a discharge asso-
38 ciated with such property. For purposes of this subdivision:
39 (a) the term "participate in management" means actually participating
40 in the management or operational affairs of a property; and does not
41 include merely having the capacity to influence, or the unexercised
42 right to control, property operations;
43 (b) a person that is a lender and that holds indicia of ownership
44 primarily to protect a security interest in a property shall be consid-
45 ered to participate in management only if, while the borrower is still
46 in possession of the property encumbered by the security interest, the
47 person exercises decisionmaking control over the environmental compli-
48 ance related to the property, such that the person has undertaken
49 responsibility for the hazardous waste handling or disposal practices
50 related to the property; or exercises control at a level comparable to
51 that of a manager of the property, such that the person has assumed or
52 manifested responsibility for the overall management of the property
53 encompassing day-to-day decisionmaking with respect to environmental
54 compliance; or over all or substantially all of the operational func-
55 tions (as distinguished from financial or administrative functions) of
56 the property other than the function of environmental compliance;
S. 6292 32 A. 9292
1 (c) 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 a property; and
4 (d) 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 the property; requiring a response action or other lawful means of
12 addressing the release or threatened release of a hazardous waste in
13 connection with the property prior to, during, or on the expiration of
14 the term of the extension of credit; providing financial or other advice
15 or counseling in an effort to mitigate, prevent, or cure default or
16 diminution in the value of the property; restructuring, renegotiating,
17 or otherwise agreeing to alter the terms and conditions of the extension
18 of 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 of environmental conservation, if the
23 actions do not rise to the level of participating in management (within
24 the meaning of this subdivision);
25 (e) the term "extension of credit" includes a lease finance trans-
26 action in which the lessor does not initially select the leased property
27 and does not during the lease term control the daily operations or main-
28 tenance of the property; 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 (f) 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 (g) the term "foreclosure" and "foreclose" means, respectively,
37 acquiring and to acquire, a property 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 the property 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 a property in order to
45 protect the security interest of the person;
46 (h) 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. 6292 33 A. 9292
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 a property as a result of assignment or conveyance in the
5 course of underwriting claims and claims settlement;
6 (i) 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 (j) 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 2. Notwithstanding subdivision thirteen of section one hundred seven-
15 ty-two of this article the term, "owner or operator" does not include
16 the state or a public corporation which acquired, and thereafter
17 retained without participating in the management of such property,
18 ownership or control involuntarily or voluntarily by virtue of its func-
19 tion as sovereign; provided, however, that such public corporation shall
20 not make a claim against the fund arising out of a discharge associated
21 with such property. Neither the state nor any public corporation shall
22 incur under this chapter any liability as to matters within the juris-
23 diction of the department as a result of actions taken in response to an
24 emergency created by the discharge or threatened discharge of petroleum
25 by another person, provided that such actions by the state or public
26 corporation did not constitute reckless, willful, wanton or intentional
27 misconduct. As used in this subdivision:
28 (a) "public corporation" means a public corporation as defined in the
29 general construction law;
30 (b) "involuntary acquisition of ownership or control" includes, but is
31 not limited to, the following:
32 (i) acquisitions by the state or a public corporation, or its agent,
33 acting as a conservator or receiver pursuant to a clear and direct stat-
34 utory mandate or regulatory authority;
35 (ii) acquisitions of assets through foreclosure and its equivalents as
36 defined in paragraph (g) of subdivision one of this section, or other-
37 wise, by the state or a public corporation in the course of administer-
38 ing a loan, loan guarantee or loan insurance program;
39 (iii) acquisitions by the state or a public corporation pursuant to
40 seizure or forfeiture authority;
41 (iv) acquisitions by the state or a public corporation as the result
42 of tax delinquency purposes; provided, that such ownership or control is
43 not retained primarily for investment purposes.
44 (c) "management participation" means that the state or a 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 property.
48 Nothing contained in this subdivision affects the applicability of this
49 section in favor of a holder of a security interest according to the
50 terms thereof.
51 3. Notwithstanding subdivision thirteen of section one hundred seven-
52 ty-two of this article the term, "owner or operator" includes a fiduci-
53 ary; provided, however, that such liability on the part of a fiduciary
54 shall not exceed the assets held in the fiduciary capacity if such
55 person is not liable independently of such person's ownership as a fidu-
56 ciary or actions taken in a fiduciary capacity; provided, however, that
S. 6292 34 A. 9292
1 such fiduciary shall not make a claim against the fund arising out of a
2 discharge associated with such property.
3 (a) For purposes of this subdivision, (i) the term "fiduciary" means a
4 person acting for the benefit of another party as a bona fide trustee;
5 executor; administrator; custodian; guardian of estates or guardian ad
6 litem; receiver; conservator; committee of estates of incapacitated
7 persons; personal representative; trustee (including a successor to a
8 trustee) under an indenture agreement, trust agreement, lease, or simi-
9 lar financing agreement, for debt securities, certificates of interest
10 or certificates of participation in debt securities, or other forms of
11 indebtedness as to which the trustee is not, in the capacity of trustee,
12 the lender; or representative in any other capacity that the department,
13 after providing public notice, determines to be similar to the various
14 capacities previously described in this paragraph; and does not include
15 either a person that is acting as a fiduciary with respect to a trust or
16 other fiduciary estate that was organized for the primary purpose of, or
17 is engaged in, actively carrying on a trade or business for profit, or
18 to facilitate one or more estate plans, or because of the incapacity of
19 a natural person or a person that acquires ownership or control of a
20 property with the objective purpose of avoiding liability of the person
21 or any other person;
22 (ii) the term "fiduciary capacity" means the capacity of a person in
23 holding title to a property, or otherwise having control of or an inter-
24 est in a property, pursuant to the exercise of the responsibilities of
25 the person as a fiduciary.
26 (b) Nothing in this subdivision affects the rights or immunities or
27 other defenses that are available under law that are applicable to a
28 person subject to this subdivision or creates any liability for a person
29 or a private right of action against a fiduciary or any other person.
30 (c) Nothing in this subdivision applies to a person if that person,
31 acts in a capacity other than that of a fiduciary or in a fiduciary
32 capacity and in that capacity, directly or indirectly benefits from a
33 trust or fiduciary relationship; or is a beneficiary and fiduciary with
34 respect to the same fiduciary estate and as a fiduciary, receives bene-
35 fits that exceed customary or reasonable compensation, and incidental
36 benefits, permitted under other applicable law.
37 (d) This subdivision does not preclude a claim under this chapter
38 against the assets of the estate or trust administered by the fiduciary;
39 or a nonemployee agent or independent contractor retained by a fiduci-
40 ary.
41 4. Notwithstanding subdivision thirteen of section one hundred seven-
42 ty-two of this article the term, "owner or operator" includes an indus-
43 trial development authority created under the public authorities law,
44 other than one that holds bare legal title to such property; has not
45 participated with any party responsible under law for the remediation of
46 contamination in, on, or from such property to attempt to have such a
47 party avoid its remedial liability; has not exercised any contractual
48 rights it may have or had, if any, under the lease, guarantee, or any
49 other financing agreement pursuant to which the industrial development
50 authority would assume control over the actual operation of the proper-
51 ty; has not taken possession or control of the property; and does not
52 make a claim against the fund arising out of a discharge associated with
53 such property. Nothing in this subdivision, affects the rights or immu-
54 nities or other defenses that are available under law that are applica-
55 ble to a person subject to this subdivision; or creates any liability
S. 6292 35 A. 9292
1 for a person or a private right of action against an industrial develop-
2 ment authority or any other person.
3 5. Notwithstanding the foregoing, a person receiving a liability
4 exemption or liability limitation under subdivision one, two, three or
5 four of this section shall be deemed to have waived any claim pursuant
6 to section one hundred eighty-one of this article that such person may
7 have against the New York environmental protection and spill compen-
8 sation fund.
9 § 18. Paragraph (a) of subdivision 2 of section 176 of the navigation
10 law, as amended by chapter 584 of the laws of 1992, is amended to read
11 as follows:
12 (a) Upon the occurrence of a discharge of petroleum, the department
13 shall respond promptly and proceed to cleanup and remove the discharge
14 in accordance with environmental priorities or may, at its discretion,
15 direct the discharger to promptly cleanup and remove the discharge. The
16 department shall be responsible for cleanup and removal or as the case
17 may be, for retaining agents and contractors who shall operate under the
18 direction of that department for such purposes. Implementation of clean-
19 up and removal procedures after each discharge shall be conducted in
20 accordance with environmental priorities and procedures established by
21 the department. Such procedures shall provide:
22 (i) the objective of a cleanup and removal that the department deter-
23 mines does not constitute an immediate response cleanup shall be the
24 protection of public health and the environment, with the minimum objec-
25 tive being to eliminate or mitigate all significant threats to public
26 health and the environment presented by such discharge through proper
27 application of scientific and engineering principles; and that the reme-
28 dy must be selected upon due consideration of the following factors:
29 (A) conformance to standards and criteria that are generally applica-
30 ble, consistently applied, and officially promulgated, that are either
31 directly applicable, or that are not directly applicable but are rele-
32 vant and appropriate, unless good cause exists why conformity should be
33 dispensed with, and with consideration being given to guidance deter-
34 mined, after the exercise of engineering judgement, to be applicable;
35 (B) overall protectiveness of public health and the environment;
36 (C) short-term effectiveness;
37 (D) long-term effectiveness;
38 (E) reduction of toxicity, mobility, and volume with treatment;
39 addressing a hot spot of petroleum that permanently and significantly
40 reduces the volume, toxicity, and/or mobility of the petroleum is to be
41 preferred over a method that does not do so. The hierarchy of remedial
42 technologies shall be as set forth under section 27-0105 of the environ-
43 mental conservation law;
44 (F) cost;
45 (G) implementability;
46 (H) community acceptance; and
47 (I) land use: the current, intended, and reasonably anticipated future
48 land uses for the property and its surroundings, if ascertainable.
49 (ii) the objective of a cleanup and removal that the department deter-
50 mines does constitute an immediate response cleanup shall be to effectu-
51 ate a prompt cleanup and removal of contamination to ensure restoration
52 of the environment to pre-spill conditions. For purposes of this para-
53 graph, an immediate response cleanup shall be one that comprises a
54 discrete set of activities which can be undertaken without extensive
55 investigation and evaluation, to prevent, mitigate, or remedy environ-
S. 6292 36 A. 9292
1 mental damage or the consequences of environmental damage attributable
2 to the discharge.
3 (iii) the remediation of soil as part of any cleanup and removal of a
4 discharge under this article shall be performed in accordance with the
5 soil cleanup levels promulgated pursuant to section 27-1316 of the envi-
6 ronmental conservation law.
7 (iv) for all cleanup and removal actions other than immediate response
8 cleanups, the department shall place a notification in the environmental
9 notice bulletin and shall notify individuals, groups, and/or organiza-
10 tions that have expressed interest in or are affected by such cleanup
11 and removal actions upon: the initiation of an investigation, upon the
12 successful completion of such investigation, and upon the submission of
13 a proposed remedy. The department shall accept public comments for
14 forty-five days prior to approving such remedy.
15 § 19. Paragraph (b) of subdivision 2 of section 176 of the navigation
16 law is relettered paragraph (c) and a new paragraph (b) is added to read
17 as follows:
18 (b) The department shall determine cleanup levels for contaminants in
19 the soil using site specific data until the commissioner promulgates
20 rules and regulations pursuant to section 27-1315 and subdivision five
21 of section 27-1316 of the environmental conservation law and thereafter
22 shall use the soil cleanup levels set forth in such rules and regu-
23 lations, as may be amended.
24 § 20. Subdivision 1 of section 181 of the navigation law, as amended
25 by chapter 712 of the laws of 1989, is amended to read as follows:
26 1. [Any] (a) Except as provided in paragraph (e) of this subdivision,
27 any person who has discharged petroleum shall be strictly liable, with-
28 out regard to fault, for all cleanup and removal costs and all direct
29 and indirect damages, no matter by whom sustained, as defined in this
30 section. In addition to cleanup and removal costs and damages, any such
31 person who is notified of such release and who did not undertake relo-
32 cation of persons residing in the area of the discharge in accordance
33 with paragraph (c) of subdivision seven of section one hundred seventy-
34 six of this article, shall be liable to the fund for an amount equal to
35 two times the actual and necessary expense incurred by the fund for such
36 relocation pursuant to section one hundred seventy-seven-a of this arti-
37 cle. Additionally, the department shall be entitled to a penalty in an
38 amount no less than one and no more than three times all cleanup and
39 removal costs if it proves by a preponderance of the evidence that it
40 has expended reasonable efforts as set forth in this subdivision. For
41 purposes of this subdivision, the department has expended reasonable
42 efforts to obtain a voluntary commitment if such person is informed in
43 writing of the department's offer to negotiate a voluntary commitment
44 and such responsible person does not respond to the department's offer;
45 or responds by refusing to negotiate; or starts to negotiate and there-
46 after discontinues same; or acts in bad faith in the negotiation proc-
47 ess, and continues not to make such commitment after receiving a final
48 written notification from the department that apprizes such responsible
49 person that failure to enter into the voluntary commitment will result
50 in the state's recovery of all costs, both direct and indirect, respect-
51 ing such discharge; then the state shall be entitled to recover all
52 costs, both direct and indirect, respecting such discharge that the
53 state shall have incurred plus, to the extent that the state can show by
54 a preponderance of the evidence that it has fulfilled the procedural
55 steps in this paragraph, a penalty in an amount up to three times, but
S. 6292 37 A. 9292
1 no less than one times, all costs, both direct and indirect, the state
2 shall have incurred in carrying out same.
3 (b) Notwithstanding paragraph (a) of this subdivision, such person
4 shall only be liable to the state for an amount equal to all costs, both
5 direct and indirect, the state shall have incurred respecting such
6 discharge if such person can establish by a preponderance of the
7 evidence that for good cause shown, it failed and refused to enter into
8 such voluntary commitment with the department.
9 (c) Two or more owners and/or persons described in paragraph (a) of
10 subdivision three of this section may claim contribution among them-
11 selves in an action brought in a court of competent jurisdiction, and
12 the amount of contribution to which any of them is entitled shall be
13 equal to the excess paid by that person over and above such person's
14 equitable share of costs. However, the amount of contribution to which
15 any of them is entitled shall be three times the excess paid by that
16 person over and above such person's equitable share of costs associated
17 with the carrying out of such person's obligations under the voluntary
18 commitment with the department described in paragraph (a) of this subdi-
19 vision if one-third of such award shall be paid to the remedial program
20 transfer fund established pursuant to section ninety-seven-uuu of the
21 state finance law and the court finds that:
22 (i) the contribution defendant is a person described in paragraph (a)
23 of this subdivision for such site;
24 (ii) the contribution plaintiff gave thirty days notice to the
25 contribution defendant of the plaintiff's intention to seek contribution
26 in the event that the contribution defendant declined to participate in
27 the implementation of the contribution plaintiff's voluntary commitment;
28 (iii) the contribution defendant failed or refused to enter into a
29 settlement agreement with the contribution plaintiff; and
30 (iv) the contribution plaintiff entered into a voluntary commitment
31 with the department to remediate the site.
32 (d) A person misidentified by the department as a person described in
33 paragraph (a) of this subdivision but which entered into a voluntary
34 commitment with the department may recover from the New York environ-
35 mental protection and spill compensation fund created under section one
36 hundred seventy-nine of this article the costs it shall have incurred
37 that are reasonable in light of the action agreed to be undertaken.
38 (e) There shall be no liability under this subdivision for a person
39 otherwise liable who can establish by a preponderance of the evidence
40 that the discharge was caused solely by an act of God; an act of war; or
41 an act or omission of a third party other than an employee or agent of
42 such person, or than one whose act or omission occurs in connection with
43 a contractual relationship, existing directly or indirectly, with such
44 person (except where the sole contractual arrangement arises from a
45 published tariff and acceptance for carriage by a common carrier or
46 rail), if such person establishes by a preponderance of the evidence
47 that such person is other than one that transports or supplies petroleum
48 and exercised due care with respect to the petroleum concerned, taking
49 into consideration the characteristics of such petroleum, in light of
50 all relevant facts and circumstances, and took precautions against fore-
51 seeable acts or omissions of any such third party and the consequences
52 that could foreseeably result from such acts or omissions; or any combi-
53 nation of them. For purposes of this paragraph, the term, "contractual
54 relationship," includes, but is not limited to, land contracts, deeds or
55 other instruments transferring title or possession, unless the property
56 on which the discharge concerned is located was acquired by such person
S. 6292 38 A. 9292
1 after the discharge on, in, or at such property, and such person estab-
2 lishes one or more of the circumstances described in subparagraph (i),
3 (ii) or (iii) of this paragraph by a preponderance of the evidence:
4 (i) At the time such person acquired the property such person did not
5 know and had no reason to know that any petroleum was discharged on, in,
6 or at the property. To establish that such person has no reason to know,
7 such person must have undertaken, at the time of acquisition, all appro-
8 priate inquiry into the previous ownership and uses of the property
9 consistent with good commercial or customary practice in an effort to
10 minimize liability. For purposes of the preceding sentence, the commis-
11 sioner shall take into account any specialized knowledge or experience
12 on the part of such person, the relationship of the purchase price to
13 the value of the property if uncontaminated, commonly known or reason-
14 ably ascertainable information about the property, the obviousness of
15 the presence or likely presence of contamination at the property, and
16 the ability to detect such contamination by appropriate inspection; or
17 (ii) Such person is a government entity which acquired the property by
18 escheat, or through any other involuntary transfer or acquisition; or
19 (iii) Such person acquired the property by inheritance or bequest, and
20 that such person exercised due care with respect to the petroleum
21 concerned, taking into consideration the characteristics of such petro-
22 leum, in light of all relevant facts and circumstances and took precau-
23 tions against foreseeable acts or omissions of any such third party and
24 the consequences that could foreseeably result from such acts or omis-
25 sions.
26 (f) Nothing in this subdivision shall diminish the liability of any
27 previous owner or operator of the property who would otherwise be liable
28 under this subdivision. Notwithstanding this paragraph, if such person
29 obtained actual knowledge of the discharge at the property when such
30 person owned the property and then subsequently transferred ownership of
31 the property to another person without disclosing such knowledge, such
32 person shall be treated as a person responsible for the discharge and no
33 defense under this paragraph shall be available to such person. Nothing
34 in this paragraph shall affect the liability under this subdivision of a
35 person who, by any act or omission, caused or contributed to such
36 discharge of petroleum.
37 § 21. Subdivision 5 of section 180 of the navigation law, as amended
38 by chapter 35 of the laws of 1985, is amended and a new subdivision 6 is
39 added to read as follows:
40 5. To disburse moneys from the fund for cleanup and removal costs
41 pursuant to a certification of claims by the commissioner[.];
42 6. To submit on an annual basis to the governor and legislature within
43 sixty days of the end of the state fiscal year an independent audit of
44 the New York environmental protection and spill compensation fund.
45 § 22. Subdivision 4 of section 181 of the navigation law, as amended
46 by chapter 458 of the laws of 1978, is amended and a new subdivision 7
47 is added to read as follows:
48 4. [An] Notwithstanding subdivision one of this section and subdivi-
49 sions one, two, three and four of section one hundred seventy-two-a of
50 this article, an act or omission caused solely by war, sabotage, or
51 governmental negligence shall be the only defenses which may be raised
52 by any owner or operator of a major facility or vessel responsible for a
53 discharge in any action arising under the provisions of this article.
54 7. Notwithstanding the foregoing, a person receiving a liability
55 exemption or liability limitation under subdivision one of this section
56 or under subdivision one, two, three or four of section one hundred
S. 6292 39 A. 9292
1 seventy-two-a of this article shall be deemed to have waived any claim
2 pursuant to subdivision two of this section that such person may have
3 against the New York environmental protection and spill compensation
4 fund.
5 § 23. Section 183 of the navigation law, as added by chapter 845 of
6 the laws of 1977, is amended to read as follows:
7 § 183. Settlements. 1. The administrator shall attempt to promote and
8 arrange a settlement between the claimant and the person responsible for
9 the discharge. If the source of the discharge can be determined and
10 liability is conceded, the claimant and the alleged discharger may agree
11 to a settlement which shall be final and binding upon the parties and
12 which will waive all recourse against the fund.
13 2. After the successful implementation of an order on consent which
14 provides for the cleanup and removal of the discharge, the person
15 subject to the order shall submit to the department a written certif-
16 ication prepared by an individual licensed or otherwise authorized in
17 accordance with article one hundred forty-five of the education law to
18 practice the profession of engineering who shall have been in charge of
19 the implementation of the cleanup and removal activities undertaken
20 pursuant to such order substantiating that, at a minimum, such remedial
21 activities satisfied the remedial requirements set forth in such order.
22 3. Upon the department's receipt of such certification, the department
23 shall review the final engineering report and the data submitted pursu-
24 ant to the order as well as any other relevant information regarding the
25 discharge. The department shall provide the person, upon its satisfac-
26 tion that the remedial requirements for the discharge have been
27 achieved, with a covenant not to sue, binding upon the state, for any
28 liability, including any future liability or claim for the further
29 cleanup or removal of petroleum relating to the discharge that was the
30 subject of such order except that a person responsible for the cleanup
31 and removal of the discharge pursuant to section one hundred eighty-one
32 of this article shall not receive a release for natural resource
33 damages. Additionally, the state nonetheless shall reserve all of its
34 rights concerning, and such covenant shall not extend to, any further
35 investigation or remedial action the department deems necessary, as a
36 result of:
37 (a) a failure to comply with the terms and conditions of the order;
38 (b) a fraudulent demonstration that the cleanup levels identified in
39 the order were reached;
40 (c) a release or threatened release at the site subsequent to the
41 effective date of the order;
42 (d) a change in the site's use subsequent to the effective date of the
43 order to a use requiring a lower level of residual contamination unless
44 additional remedial activities are undertaken which shall meet the stan-
45 dard for protection of public health and the environment that applies to
46 remedial actions for such use under this article;
47 (e) information received, in whole or in part, after the department's
48 execution of such order, which indicates that the cleanup and removal
49 performed, or to be performed, under such order will not be, or is not,
50 protective of public health or the environment for such use of the site;
51 or
52 (f) the department determines that the remedy implemented is not
53 protective of public health or the environment.
54 4. The reservation contained in paragraph (d) of subdivision three of
55 this section shall not be reserved in the event a person remediates soil
56 contamination to soil category 1, as that term is described in paragraph
S. 6292 40 A. 9292
1 a of subdivision three of section 27-1316 of the environmental conserva-
2 tion law.
3 5. The reservation contained in paragraph (f) of subdivision three of
4 this section shall not be reserved for a person who is not responsible
5 for the cleanup and removal of the discharge pursuant to applicable
6 principles of statutory or common law liability, or who is liable solely
7 as a result of ownership or operation of the affected site subsequent to
8 the disposal of hazardous waste or the discharge of petroleum, in the
9 event that such person remediates soil contamination to soil category 1,
10 as that term is described in paragraph a of subdivision three of section
11 27-1316 of the environmental conservation law.
12 6. The covenant not to sue issued pursuant to this section shall
13 extend to the person's successors or assigns through acquisition of
14 title to the site to which the liability release applies and to a person
15 who develops or otherwise occupies the site, provided that such persons
16 act in good faith to adhere to the requirements of such order and work-
17 plan. However, such covenant does not extend, and cannot be transferred,
18 to a person who is responsible as of the date of the issuance of an
19 order on consent for the discharge of petroleum according to section one
20 hundred eighty-one of this article unless that person was party to the
21 order on which such covenant was based. A notice of the order containing
22 such covenant shall be recorded and indexed as a declaration of covenant
23 in the office of the recording officer for the county or counties where
24 such site is located in the manner prescribed by article nine of the
25 real property law within thirty days of signing the order if the person
26 is an owner or within thirty days of acquiring title of the site if the
27 person is a prospective purchaser.
28 7. The provisions of this title shall not affect an action or a claim,
29 including a claim for contribution, that a person who implements or
30 completes an order executed by such person and the department providing
31 for the cleanup and removal of the discharge pursuant to this article
32 has or may have against a third party.
33 8. Nothing in this section shall be construed to affect either the
34 liability of any person with respect to any costs, damages, or investi-
35 gative or remedial activities that are not included in the order; or the
36 department's authority to maintain an action or proceeding against any
37 person who is not subject to the order.
38 9. A person who has settled its liability to the department under this
39 section shall not be liable for claims for contribution regarding
40 matters addressed in the order. Such settlement does not discharge any
41 of the persons responsible under law for the cleanup and removal of the
42 discharge unless its terms so provide, but it reduces the potential
43 liability of the others by the amount of the settlement.
44 10. Nothing in this section shall be construed to affect the authority
45 of the department to reach settlement with other persons consistent with
46 its authority under applicable law.
47 § 24. Subdivisions 24, 25 and 26 of section 1281 of the public
48 authorities law, subdivision 24 as amended by chapter 857 of the laws of
49 1982, subdivision 25 as amended by chapter 295 of the laws of 1994 and
50 subdivision 26 as added by chapter 282 of the laws of 1979, are amended
51 to read as follows:
52 24. "Hazardous waste" shall [mean a waste which appears on the list or
53 satisfies the characteristics promulgated by the commissioner of envi-
54 ronmental conservation pursuant to section 27-0903 of the environmental
55 conservation law and until, but not after, the promulgation of such
S. 6292 41 A. 9292
1 list, a waste or combination of wastes, which because of its quantity,
2 concentration, or physical, chemical or infectious characteristics may:
3 a. Cause, or significantly contribute to an increase in mortality or
4 an increase in serious irreversible or incapacitating reversible
5 illness; or
6 b. Pose a substantial present or potential hazard to human health or
7 the environment when improperly treated, stored, transported, disposed
8 or otherwise managed] have the same meaning as set forth in section
9 27-1301 of the environmental conservation law.
10 25. "Inactive hazardous waste disposal site" shall [mean any area or
11 structure used for the long term storage or final placement of hazardous
12 waste including, but not limited to, dumps, landfills, lagoons and arti-
13 ficial treatment ponds, as to which area or structure no permit or
14 authorization issued by the department of environmental conservation or
15 a federal agency for the disposal of hazardous waste was in effect after
16 the effective date of this title and any inactive area or structure on
17 the National Priorities List established under the authority of 42
18 U.S.C.A. Section 9605] have the same meaning as set forth in section
19 27-1301 of the environmental conservation law.
20 26. "Inactive hazardous waste disposal site remedial program" shall
21 [mean activities undertaken to eliminate, remove, abate, control or
22 monitor health and/or environmental hazards or potential hazards in
23 connection with inactive hazardous waste disposal sites or to treat or
24 dispose of wastes and waste contaminated materials from such sites
25 including, but not limited to, grading, contouring, trenching, grouting,
26 capping, excavation, transporting, incineration, chemical treatment,
27 biological treatment or the construction of leachate collection and
28 treatment facilities] have the same meaning as set forth in section
29 27-1301 of the environmental conservation law.
30 § 25. Section 1389-a of the public health law, as added by chapter 282
31 of the laws of 1979, subdivision 1 as amended by chapter 857 of the laws
32 of 1982 and subdivision 2 as amended by chapter 295 of the laws of 1994,
33 is amended to read as follows:
34 § 1389-a. Definitions. 1. "Hazardous waste" means [a waste which
35 appears on the list or satisfies the characteristics promulgated by the
36 commissioner of environmental conservation pursuant to section 27-0903
37 of the environmental conservation law and until, but not after, the
38 promulgation of such list, or a waste or combination of wastes, which
39 because of its quantity, concentration, or physical, chemical or infec-
40 tious characteristics may:
41 a. Cause, or significantly contribute to an increase in mortality or
42 an increase in serious irreversible or incapacitating reversible
43 illness; or
44 b. Pose a substantial present or potential hazard to human health or
45 the environment when improperly treated, stored, transported, disposed
46 or otherwise managed] hazardous waste as defined in section 27-1301 of
47 the environmental conservation law.
48 2. "Inactive hazardous waste disposal site" means [any area or struc-
49 ture used for the long term storage or final placement of hazardous
50 waste including, but not limited to, dumps, landfills, lagoons and arti-
51 ficial treatment ponds, as to which area or structure no permit or
52 authorization issued by the department of environmental conservation or
53 a federal agency for the disposal of hazardous waste was in effect after
54 the effective date of this title and any inactive area or structure on
55 the National Priorities List established under the authority of 42
56 U.S.C.A. Section 9605] an inactive hazardous waste disposal site as that
S. 6292 42 A. 9292
1 term is defined in section 27-1301 of the environmental conservation
2 law.
3 3. "Inactive hazardous waste disposal site remedial program" means
4 [activities undertaken to eliminate, remove, abate, control or monitor
5 health and/or environmental hazards or potential hazards in connection
6 with inactive hazardous waste disposal sites or to treat or dispose of
7 wastes and waste contaminated materials from such sites including, but
8 not limited to, grading, contouring, trenching, grouting, capping, exca-
9 vation, transporting, incineration, chemical treatment, biological
10 treatment or construction of leachate collection and treatment facili-
11 ties] an inactive hazardous waste disposal site remedial program as that
12 term is defined in section 27-1301 of the environmental conservation
13 law.
14 4. "Person" means an individual, trust, firm, joint stock company,
15 corporation, partnership, association, state, municipality, commission,
16 political subdivision of a state, public benefit corporation or any
17 interstate body.
18 a. Such term includes any person owning or operating an inactive
19 hazardous waste disposal site but does not include a person that is a
20 lender that, without participating in the management of such site, holds
21 indicia of ownership primarily to protect the security interest of the
22 person in such site; nor does it include a person that is a lender that
23 did not participate in management of such site prior to foreclosure,
24 notwithstanding that the person forecloses on such site and after fore-
25 closure, sells, re-leases (in the case of a lease finance transaction),
26 or liquidates such site, maintains business activities, winds up oper-
27 ations, undertakes in a non-negligent manner remedial actions under the
28 direction of the department, with respect to such site, or takes any
29 other measure to preserve, protect, or prepare such site prior to sale
30 or disposition, if the person seeks to sell, re-lease (in the case of a
31 lease finance transaction), or otherwise divest the person of such site
32 at the earliest practicable commercially reasonable time, on commercial-
33 ly reasonable terms, taking into account market conditions and legal and
34 regulatory requirements. For purposes of this paragraph:
35 (i) the term "participate in management" means actually participating
36 in the management or operational affairs of such site; and does not
37 include merely having the capacity to influence, or the unexercised
38 right to control, such site's operations;
39 (ii) a person that is a lender and that holds indicia of ownership
40 primarily to protect a security interest in such site shall be consid-
41 ered to participate in management only if, while the borrower is still
42 in possession of such site, the person exercises decisionmaking control
43 over the environmental compliance related to such site, such that the
44 person has undertaken responsibility for the hazardous waste handling or
45 disposal practices related to such site; or exercises control at a level
46 comparable to that of a manager of such site, such that the person has
47 assumed or manifested responsibility for the overall management of such
48 site encompassing day-to-day decisionmaking with respect to environ-
49 mental compliance; or over all or substantially all of the operational
50 functions (as distinguished from financial or administrative functions)
51 of such site other than the function of environmental compliance;
52 (iii) the term "participate in management" does not include performing
53 an act or failing to act prior to the time at which a security interest
54 is created in such site;
55 (iv) the term "participate in management" does not include holding a
56 security interest or abandoning or releasing a security interest;
S. 6292 43 A. 9292
1 including in the terms of an extension of credit, or in a contract or
2 security agreement relating to the extension, a covenant, warranty, or
3 other term or condition that relates to environmental compliance; moni-
4 toring or enforcing the terms and conditions of the extension or credit
5 or security interest; monitoring or undertaking one or more inspections
6 of such site; requiring a response action or other lawful means of
7 addressing the release or threatened release of a hazardous waste in
8 connection with such site prior to, during, or on the expiration of the
9 term of the extension of credit; providing financial or other advice or
10 counseling in an effort to mitigate, prevent, or cure default or diminu-
11 tion in the value of such site; restructuring, renegotiating, or other-
12 wise agreeing to alter the terms and conditions of the extension of
13 credit or security interest; exercising forbearance; exercising other
14 remedies that may be available under applicable law for the breach of a
15 term or condition of the extension of credit or security agreement; or
16 conducting in a non-negligent manner a remedial action directly or under
17 the direction of the department, if the actions do not rise to the level
18 of participating in management (within the meaning of subparagraphs (i)
19 and (ii) of this paragraph);
20 (v) the term "extension of credit" includes a lease finance trans-
21 action in which the lessor does not initially select such leased site
22 and does not during the lease term control the daily operations or main-
23 tenance of such site; or that conforms with regulations issued by the
24 appropriate federal banking agency (as defined in 12 USC section 1813)
25 or the superintendent of banks or with regulations issued by the
26 National Credit Union Administrative Board, as appropriate;
27 (vi) the term "financial or administrative function" includes a func-
28 tion such as that of a credit manager, accounts payable officer,
29 accounts receivable officer, personal manager, comptroller, or chief
30 financial officer, or a similar function;
31 (vii) the terms "foreclosure" and "foreclose" mean, respectively,
32 acquiring and to acquire, such site through purchase at sale under a
33 judgement or decree, power of sale, or nonjudicial foreclosure sale; a
34 deed in lieu of foreclosure, or similar conveyance from a trustee; or
35 repossession, if such site was security for an extension of credit
36 previously contracted; conveyance pursuant to an extension of credit
37 previously contracted, including the termination of a lease agreement;
38 or any other formal or informal manner by which the person acquires, for
39 subsequent disposition, title to or possession of such site in order to
40 protect the security interest of the person;
41 (viii) the term "lender" means an insured depository institution (as
42 defined in 12 USC section 1813); an insured credit union (as defined in
43 12 USC section 1752); a bank or association chartered under the Farm
44 Credit Act of 1971 (12 U.S.C. 2001 et seq.); a leasing or trust company
45 that is an affiliate of an insured depository institution; any person
46 (including a successor or assignee of any such person) that makes a bona
47 fide extension of credit to or takes or acquires a security interest
48 from a nonaffiliated person; the Federal National Mortgage Association,
49 the Federal Home Loan Mortgage Corporation, the Federal Agricultural
50 Mortgage Corporation, or any other entity that in a bona fide manner
51 buys or sells loans or interests in loans; a person that insures or
52 guarantees against a default in the repayment of an extension of credit,
53 or acts as a surety with respect to an extension of credit, to a nonaf-
54 filiated person; and a person that provides title insurance and that
55 acquires such site as a result of assignment or conveyance in the course
56 of underwriting claims and claims settlements;
S. 6292 44 A. 9292
1 (ix) the term "operational function" includes a function such as that
2 of a facility or plant manager, operations manager, chief operating
3 officer, or chief executive officer; and
4 (x) the term "security interest" includes a right under a mortgage,
5 deed of trust, assignment, judgment lien, pledge, security agreement,
6 factoring agreement, or lease and any other right accruing to a person
7 to secure the repayment of money, the performance of a duty, or any
8 other obligation by a nonaffiliated person.
9 b. Such term includes any person owning or operating an inactive
10 hazardous waste disposal site but does not include the state of New York
11 or a public corporation which acquired, and thereafter retained without
12 participating in the management of such site, ownership or control
13 involuntarily by virtue of its function as sovereign. Neither the state
14 of New York nor any public corporation shall incur under this chapter
15 any liability as to matters within the jurisdiction of the department as
16 a result of actions taken in response to an emergency created by the
17 release or threatened release of hazardous waste by another person,
18 provided that such actions by the state or public corporation did not
19 constitute reckless, willful, wanton or intentional misconduct. As used
20 in this paragraph:
21 (i) "public corporation" means a public corporation as defined in the
22 general construction law;
23 (ii) "involuntary acquisition of ownership or control" includes but is
24 not limited to the following:
25 (A) acquisitions by the state or a public corporation in its capacity
26 as sovereign, including acquisitions pursuant to abandonment
27 proceedings, or escheat, or any other circumstance of involuntary acqui-
28 sition in its capacity as sovereign;
29 (B) acquisitions by the state or a public corporation, or its agent,
30 acting as a conservator or receiver pursuant to a clear and direct stat-
31 utory mandate or regulatory authority;
32 (C) acquisitions of assets through foreclosure and its equivalents, or
33 otherwise, by the state or a public corporation in the course of admin-
34 istering a loan, loan guarantee or loan insurance program;
35 (D) acquisitions by the state or a public corporation pursuant to
36 seizure or forfeiture authority; and
37 (E) acquisitions by the state or a public corporation as the result of
38 tax delinquency purposes, provided, that such ownership or control is
39 not retained primarily for investment purposes.
40 (iii) "management participation" means that the state or public corpo-
41 ration is actually participating in the management or operation of the
42 property but does not include the mere capacity to influence, ability to
43 influence or unexercised right to control the operation of the property.
44 Nothing contained in this paragraph affects the applicability of para-
45 graph a of this subdivision in favor of a holder of a security interest
46 according to the terms thereof.
47 c. Such term includes any person owning or operating an inactive
48 hazardous waste disposal site, including a fiduciary; provided, however,
49 that such liability on the part of a fiduciary shall not exceed the
50 assets held in the fiduciary capacity if such person is not liable inde-
51 pendently of such person's ownership as a fiduciary or actions taken in
52 a fiduciary capacity including, but not limited to, the fiduciary negli-
53 gently causing or contributing to the release or threatened release of
54 hazardous waste at such site.
55 (i) For purposes of this paragraph:
S. 6292 45 A. 9292
1 (A) the term, "fiduciary," means a person acting for the benefit of
2 another party as a bona fide trustee; executor; administrator; custo-
3 dian; guardian of estates or guardian ad litem; receiver; conservator;
4 committee of estates of incapacitated persons; personal representative;
5 trustee (including a successor to a trustee) under an indenture agree-
6 ment, trust agreement, lease, or similar financing agreement, for debt
7 securities, certificates of interest or certificates of participation in
8 debt securities, or other forms of indebtedness as to which the trustee
9 is not, in the capacity of trustee, the lender; or representative in any
10 other capacity that the department, after providing public notice,
11 determines to be similar to the various capacities previously described
12 in this paragraph; and does not include either a person that is acting
13 as a fiduciary with respect to a trust or other fiduciary estate that
14 was organized for the primary purpose of, or is engaged in, actively
15 carrying on a trade or business for profit unless the trust or other
16 fiduciary estate was created as part of, or to facilitate, one or more
17 estate plans or because of the incapacity of a natural person or a
18 person that acquires ownership or control of a property with the objec-
19 tive purpose of avoiding liability of the person or any other person.
20 (B) the term, "fiduciary capacity," means the capacity of a person in
21 holding title to a property, or otherwise having control of or an inter-
22 est in a property, pursuant to the exercise of the responsibilities of
23 the person as a fiduciary.
24 (ii) Nothing in this paragraph affects the rights or immunities or
25 other defenses that are available under law that is applicable to a
26 person subject to this subdivision; or creates any liability for a
27 person or a private right of action against a fiduciary or any other
28 person.
29 (iii) Nothing in this paragraph applies to a person if that person
30 acts in a capacity other than that of a fiduciary or in a beneficiary
31 capacity and in that capacity, directly or indirectly benefits from a
32 trust or fiduciary relationship; or is a beneficiary and a fiduciary
33 with respect to the same fiduciary estate and as a fiduciary, receives
34 benefits that exceed customary or reasonable compensation, and inci-
35 dental benefits, permitted under other applicable law.
36 d. Such term includes any person owning or operating an inactive
37 hazardous waste disposal site, including an industrial development
38 authority created under this chapter, other than one that holds bare
39 legal title to such site; has not participated with any party responsi-
40 ble under law for the remediation of contamination in, on, or from such
41 site to attempt to have such a party avoid its remedial liability; has
42 not exercised any contractual rights it may have or had, if any, under
43 the lease, guarantee, or any other financing agreement pursuant to which
44 the industrial development authority would assume control over the actu-
45 al operation of the site; and has not taken possession or control of the
46 site. Nothing in this paragraph affects the rights or immunities or
47 other defenses that are available under law that are applicable to an
48 industrial development authority; or creates any liability for a person
49 or a private right of action against an industrial development authority
50 or any other person.
51 5. "Waste" means [any garbage, refuse, sludge from a waste treatment
52 plant, water supply treatment plant, or air pollution control facility,
53 and other discarded material, whether or not such material may eventual-
54 ly be used for some other purpose, including solid, liquid, semisolid,
55 or contained gaseous material resulting from industrial, commercial,
56 mining and agricultural operations or from community activities, and
S. 6292 46 A. 9292
1 source, special nuclear or by-product material as defined in the Atomic
2 Energy Act of 1954, as amended, except as may be provided by existing
3 agreements between the state of New York and the government of the
4 United States, but does not include solid or dissolved material in
5 domestic sewage, or solid or dissolved materials in irrigation return
6 flows or industrial discharges which are point sources subject to
7 permits under article seventeen of the environmental conservation law]
8 waste as that term is defined in section 27-1301 of the environmental
9 conservation law.
10 § 26. Subdivision 4 of section 1389-b of the public health law, as
11 added by chapter 282 of the laws of 1979, is amended to read as follows:
12 4. (a) Any order issued pursuant to subdivision three of this section,
13 other than one issued on consent of the person, shall be issued only
14 after notice and the opportunity for hearing is provided to the persons
15 who may be the subject of such order. The commissioner shall determine
16 which persons are responsible pursuant to said subdivision according to
17 applicable principles of statutory or common law liability. Such persons
18 shall be entitled to raise any statutory or common law defenses at any
19 such hearing and such defenses shall have the same force and effect at
20 such hearings as they would have in a court of law. In the event a hear-
21 ing is held, no order shall be issued by the commissioner under subdivi-
22 sion three of this section until a final decision has been rendered. Any
23 such order shall be reviewable pursuant to article seventy-eight of the
24 civil practice law and rules within thirty days after service of said
25 order. The commissioner may request the participation of the attorney
26 general in such hearings.
27 (b) There shall be no liability under this section for a person other-
28 wise liable who can establish by a preponderance of the evidence that
29 the significant threat to the environment attributable to hazardous
30 waste disposed at an inactive hazardous waste disposal site was caused
31 solely by an act of God; an act of war; or an act or omission of a third
32 party other than an employee or agent of such person, or then one whose
33 act or omission occurs in connection with a contractual relationship,
34 existing directly or indirectly, with such person (except where the sole
35 contractual arrangement arises from a published tariff and acceptance
36 for carriage by a common carrier or rail), if such person establishes by
37 a preponderance of the evidence that such person exercised due care with
38 respect to the hazardous waste concerned, taking into consideration the
39 characteristics of such hazardous waste, in light of all relevant facts
40 and circumstances and took precautions against foreseeable acts or omis-
41 sions of any such third party and the consequences that could foresee-
42 ably result from such acts or omissions; or any combination of them. For
43 purposes of this paragraph, the term, "contractual relationship,"
44 includes, but is not limited to, land contracts, deeds or other instru-
45 ments transferring title or possession, unless the real property on
46 which the site concerned is located was acquired by such person after
47 the disposal or placement of the hazardous waste on, in, or at such
48 site, and such person establishes one or more of the circumstances
49 described in subparagraph (i), (ii) or (iii) of this paragraph by a
50 preponderance of the evidence:
51 (i) At the time such person acquired the site such person did not know
52 and had no reason to know that any hazardous waste which is the subject
53 of the significant threat determination was disposed of on, in, or at
54 the site. To establish that such person has no reason to know, such
55 person must have undertaken, at the time of acquisition, all appropriate
56 inquiry into the previous ownership and uses of such site consistent
S. 6292 47 A. 9292
1 with good commercial or customary practice in an effort to minimize
2 liability. For purposes of the preceding sentence, the commissioner
3 shall take into account any specialized knowledge or experience on the
4 part of such person, the relationship of the purchase price to the value
5 of the property if uncontaminated, commonly known or reasonably ascer-
6 tainable information about the property, the obviousness of the presence
7 or likely presence of contamination at the property, and the ability to
8 detect such contamination by appropriate inspection; or
9 (ii) Such person is a government entity which acquired the site by
10 escheat, or through any other involuntary transfer or acquisition; or
11 (iii) Such person acquired the site by inheritance or bequest, and
12 that such person exercised due care with respect to the hazardous waste
13 concerned, taking into consideration the characteristics of such hazard-
14 ous waste, in light of all relevant facts and circumstances and took
15 precautions against foreseeable acts or omissions of any such third
16 party and the consequences that could foreseeably result from such acts
17 or omissions.
18 § 27. Section 1389-e of the public health law is REPEALED.
19 § 28. Section 316-b of the real property law is amended by adding a
20 new subdivision 3 to read as follows:
21 3. Each recording officer shall record and index each declaration of
22 restriction or any other declaration of covenants that shall be recorded
23 under title fourteen of article twenty-seven of the environmental
24 conservation law or under any other provision of such law.
25 § 29. Subdivisions 1, 2, 3, 6, paragraph (a) of subdivision 12, subdi-
26 visions 13, 14 and 15 of section 97-b of the state finance law, subdivi-
27 sions 1, 2 and paragraph (f) of subdivision 3 as amended and paragraph
28 (g) as added by chapter 413 of the laws of 1996, paragraph (e) of subdi-
29 vision 3 as amended by chapter 9 of the laws of 1994, subdivision 6 as
30 amended by chapter 38 of the laws of 1985, paragraph (a) of subdivision
31 12 as amended by section 13 of part C of chapter 389 of the laws of 1997
32 and subdivision 3 as amended and subdivisions 13, 14 and 15 as added by
33 chapter 512 of the laws of 1986, are amended and two new subdivisions 16
34 and 17 are added to read as follows:
35 1. There is hereby established in the custody of the state comptroller
36 a nonlapsing revolving fund to be known as the "hazardous waste remedial
37 fund" which shall consist of a "site investigation and construction
38 account" [and], an "industry fee transfer account," [and] an "environ-
39 mental restoration project account," and a "hazardous waste cleanup
40 account".
41 2. Such fund shall consist of all of the following:
42 (a) all moneys [appropriated for transfer] transferred to the fund's
43 site investigation and construction account; (b) all fines and other
44 sums accumulated in the fund prior to April first, nineteen hundred
45 eighty-eight pursuant to section 71-2725 of the environmental conserva-
46 tion law for deposit in the fund's site investigation and construction
47 account; (c) [all moneys collected or received by the department of
48 taxation and finance pursuant to section 27-0923 of the environmental
49 conservation law for deposit in the fund's industry fee transfer
50 account; (d) all moneys paid into the fund pursuant to section 72-0201
51 of the environmental conservation law which shall be deposited in the
52 fund's industry fee transfer account; (e)] all moneys paid into the fund
53 pursuant to section one hundred eighty-six of the navigation law which
54 shall be deposited in the fund's industry fee transfer account; [(f)]
55 (d) all moneys paid into the fund by municipalities for repayment of
56 landfill closure loans made pursuant to former title five of article
S. 6292 48 A. 9292
1 fifty-two of the environmental conservation law for deposit in the
2 fund's site investigation and construction account; [(g)] (e) all monies
3 recovered under section 56-0507 of the environmental conservation law
4 into the fund's environmental restoration project account; [and (h)] (f)
5 all monies transferred from the remedial program transfer fund, created
6 pursuant to subdivision five of section ninety-seven-uuu of the state
7 finance law, to the fund's hazardous waste cleanup account; and (g)
8 other moneys credited or transferred thereto from any other fund or
9 source for deposit in the fund's site investigation and construction
10 account.
11 3. Moneys of the hazardous waste remedial fund except monies in the
12 industry fee transfer account, when allocated, shall be available to
13 [the department of environmental conservation] all state departments and
14 agencies for the following purposes:
15 (a) inactive hazardous waste disposal site remedial programs pursuant
16 to section 27-1313 of the environmental conservation law and section
17 thirteen hundred eighty-nine-b of the public health law;
18 (b) cleaning up or restoring to its original state any area where
19 hazardous wastes were disposed of or possessed unlawfully in violation
20 of article twenty-seven of the environmental conservation law. For the
21 purposes of this section "the original state of the area" shall mean the
22 reasonably ascertainable condition of the property immediately prior to
23 the unlawful disposal or, if it is impracticable to determine such
24 condition, then it is the reasonable environmentally sound condition of
25 the area;
26 (c) inactive hazardous waste site identification, classification and
27 investigation actions including testing, analyses, record searches and
28 other expenditures necessary to develop the state inactive hazardous
29 waste disposal site remedial plan required pursuant to section 27-1305
30 of the environmental conservation law;
31 (d) financing the non-federal share of the cost of clean up, and site
32 remediation activities as well as post-closure operation and maintenance
33 costs, pursuant to the federal Comprehensive Environmental Response,
34 Compensation and Liability Act of 1980;
35 (e) emergency response action to clean up spills or abate other public
36 health or environmental hazards involving hazardous wastes except those
37 provided for under the New York state environmental protection and spill
38 compensation fund;
39 (f) [the study of hazardous substance waste disposal sites pursuant to
40 section 27-1316 of the environmental conservation law and section one
41 thousand three hundred eighty-nine-e of the public health law; and
42 (g)] to undertake such remedial measures as the department of environ-
43 mental conservation may determine necessary due to environmental condi-
44 tions related to the property subject to an agreement to provide state
45 assistance under title five of article fifty-six of the environmental
46 conservation law that were unknown to such department at the time of its
47 approval of such agreement which indicates that conditions on such prop-
48 erty are not sufficiently protective of human health for its reasonably
49 anticipated uses or due to information received, in whole or in part,
50 after such department's approval of such agreement's final engineering
51 report and certification, which indicates that such agreement's remedial
52 activities are not sufficiently protective of human health for such
53 property's reasonably anticipated uses; and, respecting the monies in
54 the environmental restoration project account in excess of ten million
55 dollars, shall provide state assistance under title five of article
56 fifty-six of the environmental conservation law;
S. 6292 49 A. 9292
1 (g) with respect to moneys in the hazardous waste cleanup account, to
2 pay the reasonable costs incurred by the state in overseeing implementa-
3 tion of voluntary agreements and conducting state remediation actions
4 under title fourteen of article twenty-seven of the environmental
5 conservation law;
6 (h) with respect to moneys in the hazardous waste cleanup account, to
7 provide state assistance pursuant to section nine hundred seventy-r of
8 the general municipal law.
9 6. The commissioner of the department of environmental conservation
10 shall make all reasonable efforts to recover the full amount of any
11 funds expended from the fund pursuant to paragraph (a) of subdivision
12 three of this section through litigation or cooperative agreements with
13 responsible persons. Any and all moneys recovered or reimbursed pursuant
14 to this section through voluntary agreements or court orders shall be
15 deposited with the comptroller and credited to the account of such fund
16 from which such expenditures were made; provided, however, that any
17 moneys recovered or reimbursed for funds expended from the hazardous
18 waste cleanup account shall be deposited in the remedial program trans-
19 fer fund.
20 (a) The comptroller shall, on July first, nineteen hundred eighty-
21 eight and on each succeeding July first until such time as the
22 surcharges required pursuant to subdivision fourteen of this section are
23 imposed, estimate the amount of revenues to be received by the industry
24 fee transfer account of this fund in the next succeeding twenty months
25 and the transfers which will be required to be made during the same
26 period. When calculating the estimate of industry fee transfer account
27 revenues available for the purpose of certifying, pursuant to this
28 subdivision, when such account's balance will be insufficient to make
29 the transfer required by subdivision eleven of this section, the comp-
30 troller shall add to the amount estimated to actually be available an
31 additional credit factor as determined by paragraph (b) of this subdivi-
32 sion. If the comptroller determines that the industry fee transfer
33 account will, at any time during the succeeding twenty month period,
34 lack sufficient funds to make the transfer required by subdivision elev-
35 en of this section, the comptroller shall so certify to the [state super
36 fund management board, created pursuant to section 27-1319 of the envi-
37 ronmental conservation law, and to the] governor and the legislature.
38 13. [Upon the receipt of a certification provided pursuant to subdivi-
39 sion twelve of this section, the state superfund management board shall
40 review and analyze the historical pattern of revenue received by the
41 industry fee transfer account and the long term projection of future
42 transfers from such account, and shall report on or before December
43 first of such year to the governor and the legislature its recommenda-
44 tions, if any, as to the sources of additional revenues which could be
45 used to supplement the revenues to be received by such fund in order to
46 achieve the equal sharing of debt service costs as implemented in subdi-
47 vision nine of this section.
48 14.] In the absence of further direction by law, effective April first
49 of the fiscal year immediately following the certification by the comp-
50 troller made pursuant to subdivision twelve of this section, surcharges
51 in the following amount shall be imposed: (a) twenty-five percent of the
52 fees imposed by sections 72-0402 and 72-0502 of the environmental
53 conservation law. Notwithstanding any other provision of law to the
54 contrary, moneys collected from such surcharge shall be deposited in
55 their entirety to the industry fee transfer account established pursuant
56 to subdivision one of this section; (b) fifty percent of the fees
S. 6292 50 A. 9292
1 imposed by section 27-0923 of the environmental conservation law, except
2 for those fees contained in paragraphs b and c of subdivision one, and
3 paragraph b of subdivision two of such section, which shall be exempt
4 from such surcharge. Moneys collected from such surcharge shall be
5 deposited to the industry fee transfer account established pursuant to
6 subdivision one of this section.
7 [15.] 14. On and after the date of such certification, the comptroller
8 shall maintain records with respect to such account to reflect each
9 unpaid transfer for the period during which it is unpaid. On and after
10 such date, any deposits in the industry fee transfer account shall be
11 immediately transferred to the general fund of the state until an amount
12 equal to the total of any unpaid transfers and accumulated interest
13 shall have been transferred to the general fund.
14 15. The comptroller shall, on the first day of July succeeding the
15 state fiscal year during which the bonds and notes issued under the
16 environmental quality bond act of nineteen hundred eighty-six to finance
17 the cleanup of inactive hazardous waste disposal sites in aggregate
18 exceed ninety-five percent of the amount authorized pursuant to such
19 bond act, estimate the total debt service of such bonds and notes. The
20 comptroller shall also estimate the state fiscal year in which the sum
21 of the transfers required by subdivision eleven of this section and the
22 additional credit factor as determined by paragraph (b) of subdivision
23 twelve of this section exceeds fifty percent of the estimated debt
24 service for such bonds and notes. The comptroller shall certify to the
25 governor and the legislature the estimated state fiscal year when fifty
26 percent of such estimated debt service will be exceeded.
27 16. Notwithstanding any law to the contrary, effective April first of
28 the state fiscal year succeeding the state fiscal year certified in
29 subdivision fifteen of this section, all moneys currently deposited in
30 the industry fee transfer account of the hazardous waste remedial fund
31 pursuant to subdivision two of this section shall be deposited in the
32 remedial program transfer fund. Further, effective April first of the
33 state fiscal year following such certification, subdivisions thirteen
34 and fourteen of this section shall be deemed repealed.
35 17. Notwithstanding any law to the contrary, and in accordance with
36 section four of the state finance law, the comptroller is hereby author-
37 ized and directed, upon the request of the director of the budget, to
38 transfer moneys from the site investigation and construction account of
39 the hazardous waste remedial fund to the hazardous waste cleanup account
40 of the hazardous waste remedial fund.
41 § 30. The state finance law is amended by adding a new section 97-uuu
42 to read as follows:
43 § 97-uuu. Remedial program transfer fund. 1. There is hereby estab-
44 lished in the joint custody of the comptroller and the commissioner of
45 taxation and finance a special fund to be known as the remedial program
46 transfer fund.
47 2. Such fund shall consist of all of the following:
48 (a) registration fees collected pursuant to subdivision two of section
49 17-1009 of the environmental conservation law for deposit in this fund;
50 (b) all license fees, fines and penalties collected pursuant to para-
51 graph (b) of subdivision one and paragraph (a) of subdivision four of
52 section one hundred seventy-four of the navigation law, penalties
53 collected pursuant to paragraphs (b) and (c) of subdivision four of
54 section one hundred seventy-four-a of the navigation law, moneys
55 collected pursuant to section one hundred eighty-seven of the navigation
S. 6292 51 A. 9292
1 law, and all penalties collected pursuant to section one hundred nine-
2 ty-two of the navigation law;
3 (c) all penalties collected pursuant to paragraph (c) of subdivision
4 one and paragraph (b) of subdivision four of section one hundred seven-
5 ty-four of the navigation law effective April first of the state fiscal
6 year succeeding the state fiscal year certified in subdivision fifteen
7 of section ninety-seven-b of this article;
8 (d) moneys recovered pursuant to subdivision six of section ninety-
9 seven-b of this article for deposit in this fund;
10 (e) all fees paid into the fund pursuant to paragraph b of subdivision
11 one of section 72-0201 of the environmental conservation law;
12 (f) all moneys collected or received by the department of taxation and
13 finance pursuant to section 27-0923 of the environmental conservation
14 law;
15 (g) all moneys paid into the fund pursuant to subdivision sixteen of
16 section ninety-seven-b of this article;
17 (h) all fees paid into the fund pursuant to section 72-0403 of the
18 environmental conservation law;
19 (i) all moneys paid into the fund pursuant to section 27-1415 of the
20 environmental conservation law;
21 (j) other moneys credited or transferred thereto from any other fund
22 or source for deposit in the fund;
23 (k) all interest accrued on any such moneys deposited into the fund;
24 and
25 (l) all moneys paid pursuant to subdivision ten of section 27-1313 of
26 the environmental conservation law and subdivision one of section one
27 hundred eighty-one of the navigation law.
28 3. Notwithstanding any law to the contrary, and in accordance with
29 section four of this chapter, the comptroller is hereby authorized and
30 directed, upon the request of the director of the budget, for each state
31 fiscal year to transfer from the general fund to this fund up to an
32 amount equivalent to the projected amount of moneys to be deposited or
33 transferred into this fund pursuant to subdivision two of this section
34 for each such state fiscal year.
35 4. Revenues in the remedial program transfer fund shall be kept sepa-
36 rate and shall not be commingled with any other moneys in the custody of
37 the comptroller. All deposits of such revenues shall, if required by the
38 comptroller, be secured by obligations of the United States or of the
39 state having a market value equal at all times to the amount of such
40 deposits and all banks and trust companies are authorized to give secu-
41 rity for such deposits. Any such revenues in such fund may, upon the
42 discretion of the comptroller, be invested in obligations in which the
43 comptroller is authorized to invest pursuant to section ninety-eight of
44 this article.
45 5. Notwithstanding any law to the contrary, and in accordance with
46 section four of this chapter, the comptroller is hereby authorized and
47 directed, upon the request of the director of the budget, to transfer
48 moneys deposited in the remedial program transfer fund, and interest
49 accrued thereon, to the environmental protection and oil spill compen-
50 sation fund or to the hazardous waste cleanup account of the hazardous
51 waste remedial fund.
52 § 31. Paragraph (a) of subdivision 2 of section 179 of the navigation
53 law, as amended by chapter 83 of the laws of 1995, is amended and a new
54 subdivision 3 is added to read as follows:
55 (a) An account which shall be credited with all license fees and
56 penalties collected pursuant to paragraph (b) of subdivision one and
S. 6292 52 A. 9292
1 paragraph (a) of subdivision four of section one hundred seventy-four of
2 this article, penalties collected pursuant to paragraph (b) of subdivi-
3 sion four of section one hundred seventy-four-a of this article, money
4 collected pursuant to section one hundred eighty-seven of this article,
5 all penalties collected pursuant to section one hundred ninety-two of
6 this article, all moneys transferred from the remedial program transfer
7 fund pursuant to subdivision five of section ninety-seven-uuu of the
8 state finance law for deposit in the New York environmental protection
9 and spill compensation fund and registration fees collected pursuant to
10 subdivision two of section 17-1009 of the environmental conservation
11 law.
12 3. Notwithstanding any general or special law to the contrary, all
13 monies collected pursuant to paragraph (b) of subdivision one and para-
14 graph (a) of subdivision four of section one hundred seventy-four of
15 this article, penalties collected pursuant to paragraph (c) of subdivi-
16 sion one and paragraph (b) of subdivision four of section one hundred
17 seventy-four of this article effective April first of the state fiscal
18 year succeeding the state fiscal year certified in subdivision fifteen
19 of section ninety-seven-b of the state finance law, penalties collected
20 pursuant to paragraphs (b) and (c) of subdivision four of section one
21 hundred seventy-four-a of this article, money collected pursuant to
22 section one hundred eighty-seven of this article, all penalties
23 collected pursuant to section one hundred ninety-two of this article,
24 and registration fees collected pursuant to subdivision two of section
25 17-1009 of the environmental conservation law shall be deposited in the
26 remedial program transfer fund in the fiscal year beginning April first,
27 two thousand one, and for each fiscal year thereafter.
28 § 32. Subdivision 2 of section 17-1009 of the environmental conserva-
29 tion law, as amended by chapter 83 of the laws of 1995, is amended to
30 read as follows:
31 2. All owners shall register the facility with the department. The
32 department is authorized to assess a fee according to a schedule based
33 on the size and type of facility, not to exceed [two hundred fifty] five
34 hundred dollars per facility. Such fee shall be paid at the time of
35 registration or registration renewal. Registration shall be renewed
36 every five years or whenever title to a facility is transferred, which-
37 ever occurs first. All fees collected pursuant to this subdivision
38 shall be deposited in the New York environmental and spill compensation
39 fund established pursuant to section one hundred seventy-nine of the
40 navigation law[.]; provided, however, that such fees shall be deposited
41 in the remedial program transfer fund in the fiscal year beginning April
42 first, two thousand one, and for each fiscal year thereafter. The owner
43 must submit with each application for registration or registration
44 renewal, a five-year fee as follows:
45 Combined Storage Capacity at Facility 5- Year Fee
46 Greater than 1,000 to 2,000 gallons $100 per facility
47 Greater than 2,000 gallons to $300 per facility
48 Less than 5,000 gallons
49 5,000 gallons to less than 400,000 gallons $500 per facility
50 § 33. Subdivision 3 of section 362 of chapter 83 of the laws of 1995
51 amending the state finance law and other laws relating to bonds, notes
52 and revenues, as amended by section 2 of part E of chapter 413 of the
53 laws of 1999, is amended to read as follows:
54 3. Sections fifteen through seventeen of this act shall take effect
55 immediately and shall be deemed to have been in full force and effect on
S. 6292 53 A. 9292
1 and after April 1, 1995 [, and shall expire and be deemed repealed April
2 1, 2004];
3 § 34. Paragraph b of subdivision 1 of section 71-2725 of the environ-
4 mental conservation law, as amended by chapter 60 of the laws of 1993,
5 is amended to read as follows:
6 b. All penalties and fines collected pursuant to sections 71-2705,
7 71-2721 and 71-2723 of this title shall be paid [into the general fund
8 to the credit of the state purposes account] to the credit of the reme-
9 dial program transfer fund established by section ninety-seven-uuu of
10 the state finance law.
11 § 35. Paragraph b of subdivision 1, subdivision 9 and paragraph a of
12 subdivision 11 of section 72-0201 of the environmental conservation law,
13 paragraph b of subdivision 1 and subdivision 9 as added by chapter 38 of
14 the laws of 1985 and paragraph a of subdivision 11 as amended by section
15 24 of part A of chapter 58 of the laws of 1998, are amended and a new
16 paragraph e of subdivision 1 is added to read as follows:
17 b. Notwithstanding any general or special law to the contrary, one-
18 half of all monies collected by the department pursuant to section
19 72-0402 and section 72-0502 of this article shall be deposited in the
20 [hazardous waste] remedial program transfer fund, created pursuant to
21 section [ninety-seven-b] ninety-seven-uuu of the state finance law.
22 e. Notwithstanding any general or special law to the contrary, all
23 monies collected by the department pursuant to section 72-0403 of this
24 article shall be deposited in the remedial program transfer fund estab-
25 lished pursuant to section ninety-seven-uuu of the state finance law.
26 9. a. In the event a penalty or interest is collected pursuant to
27 subdivision five or six of this section for fees due under section
28 72-0402, or section 72-0502 of this article, one-half of the penalty or
29 interest shall be deposited by the department in the [hazardous waste]
30 remedial program transfer fund.
31 b. In the event a penalty or interest is collected pursuant to subdi-
32 vision five or six of this section for fees due under section 72-0403 of
33 this article, such penalty or interest shall be deposited in the remedi-
34 al program transfer fund.
35 a. All fees collected pursuant to this article [except fees collected
36 pursuant to paragraphs b, c and d of subdivision one of this section]
37 shall be paid into the environmental conservation special revenue fund
38 to the credit of the environmental regulatory account, unless herein
39 provided otherwise.
40 § 36. The environmental conservation law is amended by adding a new
41 section 72-0403 to read as follows:
42 § 72-0403. Remedial program surcharges.
43 1. All generators shall submit annually to the department a fee in the
44 amount to be determined as follows:
45 a. Four thousand dollars for generators of equal to or greater than
46 fifteen tons per year and less than or equal to twenty-five tons per
47 year of hazardous waste;
48 b. Nine thousand dollars for generators of greater than twenty-five
49 tons per year and less than or equal to fifty tons per year of hazardous
50 waste;
51 c. Fourteen thousand dollars for generators of greater than fifty tons
52 per year and less than or equal to seventy-five tons per year of hazard-
53 ous waste;
54 d. Nineteen thousand dollars for generators of greater than seventy-
55 five tons per year and less than or equal to one hundred tons per year
56 of hazardous waste;
S. 6292 54 A. 9292
1 e. Twenty-four thousand dollars for generators of greater than one
2 hundred tons per year and less than or equal to five hundred tons per
3 year of hazardous waste;
4 f. Eighty thousand dollars for generators of greater than five hundred
5 tons per year and less than or equal to one thousand tons per year of
6 hazardous waste;
7 g. Eighty-five thousand dollars for generators of greater than one
8 thousand tons per year and less than or equal to two thousand tons per
9 year of hazardous waste;
10 h. One hundred ten thousand dollars for generators of greater than two
11 thousand tons per year and less than or equal to three thousand tons per
12 year of hazardous waste;
13 i. One hundred thirty-five thousand dollars for generators of greater
14 than three thousand tons per year and less than or equal to five thou-
15 sand tons per year of hazardous waste;
16 j. One hundred sixty thousand dollars for generators of greater than
17 five thousand tons per year and less than or equal to ten thousand tons
18 per year of hazardous waste;
19 k. Three hundred sixty thousand dollars for generators of greater than
20 ten thousand tons per year of hazardous waste;
21 l. Six thousand dollars for generators of equal to or greater than
22 fifteen tons per year of hazardous wastewater, payable in addition to
23 the fees for hazardous wastes, other than wastewater, as required by
24 this subdivision.
25 2. No fee shall be payable for waste resulting from services which are
26 provided:
27 a. under a contract with the department, or with the department's
28 approval and in compliance with department regulations, or pursuant to
29 an order of the department, the United States environmental protection
30 agency or a court, related to the cleanup or remediation of a hazardous
31 materials or hazardous waste spill, discharge, or surficial cleanup,
32 pursuant to this chapter, other than section 27-1313 of this chapter or
33 a removal action pursuant to the Comprehensive Environmental Response,
34 Compensation and Liability Act (42 U.S.C. 9601 et seq.); or
35 b. under a contract for, or with the department's approval and in
36 compliance with department regulations for, the cleanup and removal of a
37 petroleum spill or discharge, pursuant to subdivision seven of section
38 one hundred seventy-six of the navigation law; or
39 c. under the order of a court, the department or the department of
40 health, or the United States environmental protection agency related to
41 an inactive hazardous waste disposal site pursuant to section 27-1313 of
42 this chapter, section thirteen hundred eighty-nine-b of the public
43 health law, or the Comprehensive Environmental Response, Compensation
44 and Liability Act (42 U.S.C. 9601 et seq.); or
45 d. voluntarily and without expectation of monetary compensation in
46 accordance with subdivision one of section 27-1321 of this chapter; or
47 e. under permit or order requiring corrective action pursuant to title
48 nine of article twenty-seven of this chapter or the Resource Conserva-
49 tion and Recovery Act (42 U.S.C. 6901 et seq.).
50 § 37. Paragraph b of subdivision 4 of section 27-0923 of the environ-
51 mental conservation law, as added by chapter 38 of the laws of 1985, is
52 amended to read as follows:
53 b. All moneys collected or received by the department of taxation and
54 finance pursuant to this section shall be deposited daily to the credit
55 of the comptroller with such responsible banks, banking houses or trust
56 companies as may be designated by the comptroller. Such deposits shall
S. 6292 55 A. 9292
1 be kept separate and apart from all other moneys in the possession of
2 the comptroller. The comptroller shall require adequate security from
3 all such depositories. Of the revenues collected under this section, the
4 comptroller shall retain in his hands such amounts as the commissioner
5 of taxation and finance may determine to be necessary for refunds under
6 this section and the comptroller shall pay any refunds to which those
7 liable for special assessments shall be entitled under the provisions of
8 this section. The comptroller, after reserving the amount to pay such
9 refunds, shall, on or before the tenth day of each month, pay all
10 special assessments, interest and penalties collected under this section
11 and remaining to his credit in such banks, banking houses or trust
12 companies at the close of business on the last day of the preceding
13 month into the [hazardous waste] remedial program transfer fund created
14 pursuant to section [ninety-seven-b] ninety-seven-uuu of the state
15 finance law. Within thirty days after each quarterly reporting date, the
16 comptroller shall certify the amount of special assessments under this
17 section deposited in the [hazardous waste] remedial program transfer
18 fund during the preceding quarter and the cumulative amount collected
19 since the start of the current calendar year, and shall submit such
20 certification to the governor and the chairman of the senate finance
21 committee and the chairman of the assembly ways and means committee.
22 § 38. Intentionally omitted.
23 § 39. The tax law is amended by adding a new section 21 to read as
24 follows:
25 § 21. Brownfield redevelopment tax credit. (a) Allowance of credit.
26 (1) General. A taxpayer subject to tax under article nine, nine-A, twen-
27 ty-two, thirty-two or thirty-three of this chapter shall be allowed a
28 credit against such tax, pursuant to the provisions referenced in subdi-
29 vision (e) of this section. Such credit shall be allowed with respect
30 to a qualified site, as such term is defined in paragraph one of subdi-
31 vision (b) of this section. The amount of the credit shall be the sum of
32 the credit components specified in paragraphs two and three of this
33 subdivision.
34 (2) Site preparation credit component. The site preparation credit
35 component shall be equal to the applicable percentage of the site prepa-
36 ration costs paid or incurred by the taxpayer with respect to a quali-
37 fied site. The credit component amount so determined with respect to a
38 site's qualification for a remediation certificate shall be allowed for
39 the taxable year in which the effective date of the remediation certif-
40 icate occurs. The credit component amount determined other than with
41 respect to such qualification shall be allowed for the taxable year in
42 which the improvement to which the applicable costs apply is placed in
43 service.
44 (3) Tangible property credit component. The tangible property credit
45 component shall be equal to the applicable percentage of the cost or
46 other basis for federal income tax purposes of tangible personal proper-
47 ty and other tangible property, including buildings and structural
48 components of buildings, which constitute qualified tangible property.
49 The credit component amount so determined shall be allowed for the taxa-
50 ble year in which such qualified tangible property is placed in service
51 on a qualified site with respect to which a remediation certificate has
52 been issued to the taxpayer. The tangible property credit component
53 shall be allowed with respect to property leased to a second party only
54 if such second party is either (i) not a party responsible for the
55 disposal of hazardous waste or the discharge of petroleum at the site
56 according to applicable principles of statutory or common law liability,
S. 6292 56 A. 9292
1 or (ii) a party responsible according to applicable principles of statu-
2 tory or common law liability if such party's liability arises solely
3 from operation of the site subsequent to the disposal of hazardous waste
4 or the discharge of petroleum, and is so certified by the commissioner
5 of environmental conservation at the request of the taxpayer, pursuant
6 to section 27-1413 of the environmental conservation law. Notwithstand-
7 ing any other provision of law to the contrary, in the case of allowance
8 of credit under this section to such a lessor, the commissioner shall
9 have the authority to reveal to such lessor any information, with
10 respect to the issue of qualified use of property by the lessee, which
11 is the basis for the denial in whole or in part, or for the recapture,
12 of the credit claimed by such lessor.
13 (4) Applicable percentage. For purposes of paragraphs two and three
14 of this subdivision, the applicable percentage shall be ten percent in
15 the case of credits claimed under article nine, nine-A, thirty-two or
16 thirty-three, and eight percent in the case of credits claimed under
17 article twenty-two, of this chapter. Provided, however, as provided in
18 section 27-1413 of the environmental conservation law, if the remedi-
19 ation certificate indicates that the soil on the qualified site has been
20 remediated to soil category 1 as that term is described in paragraph a
21 of subdivision three of section 27-1316 of the environmental conserva-
22 tion law, the applicable percentage shall be twelve percent in the case
23 of credits claimed under article nine, nine-A, thirty-two or thirty-
24 three, and ten percent in the case of credits claimed under article
25 twenty-two, of this chapter.
26 (b) Definitions. As used in this section, the following terms shall
27 have the following meanings:
28 (1) Qualified site. A "qualified site" is a site with respect to which
29 a remediation certificate has been issued to the taxpayer by the commis-
30 sioner of environmental conservation pursuant to section 27-1413 of the
31 environmental conservation law.
32 (2) Site preparation costs. The term "site preparation costs" shall
33 mean all amounts properly chargeable to capital account, under generally
34 accepted accounting principles, (i) which are paid or incurred in
35 connection with a site's qualification for a remediation certificate,
36 and (ii) all other site preparation costs paid or incurred in connection
37 with preparing a site for the erection of a building or a component of a
38 building, or otherwise to establish a site as usable for its industrial,
39 commercial (including the commercial development of residential hous-
40 ing), recreational or conservation purposes. Site preparation costs
41 shall include, but not be limited to, the costs of excavation, temporary
42 electric wiring, scaffolding, demolition costs, and the costs of fencing
43 and security facilities. Site preparation costs shall not include the
44 cost of acquiring the site and shall not include amounts included in the
45 cost or other basis for federal income tax purposes of qualified tangi-
46 ble property, as described in paragraph three of this subdivision.
47 (3) Qualified tangible property. "Qualified tangible property" is
48 property which:
49 (A) is depreciable pursuant to section one hundred sixty- seven of the
50 internal revenue code,
51 (B) has a useful life of four years or more,
52 (C) has been acquired by purchase as defined in section one hundred
53 seventy-nine(d) of the internal revenue code,
54 (D) has a situs on a qualified site in this state,
S. 6292 57 A. 9292
1 (E) is principally used by the taxpayer for industrial, commercial,
2 recreational or environmental conservation purposes (including the
3 commercial development of residential housing), and
4 (F) is placed in service within three years following the issuance of
5 a remediation certificate with respect to such qualified site.
6 (4) Remediation certificate. The term "remediation certificate" shall
7 refer to the certificate so denominated which is issued by the commis-
8 sioner of environmental conservation pursuant to section 27-1413 of the
9 environmental conservation law.
10 (5) Corporate new business. A "corporate new business" shall include
11 any corporation, except a corporation:
12 (A) over fifty percent of the number of shares of stock of which enti-
13 tling the holders thereof to vote for the election of directors or trus-
14 tees is owned or controlled, either directly or indirectly, by a taxpay-
15 er subject to tax under article nine-A; section one hundred
16 eighty-three, one hundred eighty-four, one hundred eighty-five or one
17 hundred eighty-six of article nine; article thirty-two or thirty-three
18 of this chapter; or
19 (B) which is substantially similar in operation and in ownership to a
20 business entity (or entities) taxable, or previously taxable, under
21 article nine-A; section one hundred eighty-three, one hundred eighty-
22 four, one hundred eighty-five or one hundred eighty-six of article nine;
23 article thirty-two or thirty-three of this chapter; article twenty-three
24 of this chapter or which would have been subject to tax under such arti-
25 cle twenty-three (as such article was in effect on January first, nine-
26 teen hundred eighty) or the income (or losses) of which is (or was)
27 includable under article twenty-two of this chapter whereby the intent
28 and purpose of this paragraph and the applicable provision of this chap-
29 ter relating to refunding of credit to new business would be evaded; or
30 (C) which has been subject to tax under the article or section with
31 respect to which the credit provided for under this section is claimed
32 for more than four taxable years (excluding short taxable years) prior
33 to the taxable year during which the taxpayer first becomes eligible for
34 such credit.
35 (c) Property which qualifies for the credit provided for under this
36 section and also for a credit provided for (1) under either subdivision
37 twelve or subdivision twelve-B of section two hundred ten of this chap-
38 ter, or both, (2) subsection (a) or subsection (j) of section six
39 hundred six of this chapter, or both, or (3) the credit provided for
40 under subsection (i) of section fourteen hundred fifty-six of this chap-
41 ter, may be the basis for either the credit provided for under this
42 section or one of the credits enumerated in paragraph one, two or three
43 of this subdivision, but not both.
44 (d)(1) With respect to qualified tangible property which is deprecia-
45 ble pursuant to section one hundred sixty-seven of the internal revenue
46 code but is not subject to the provisions of section one hundred sixty-
47 eight of such code and which is disposed of or ceases to be in qualified
48 use prior to the end of the taxable year in which the credit is to be
49 taken, the amount of the credit shall be that portion of the credit
50 provided for in this subdivision which represents the ratio which the
51 months of qualified use bear to the months of useful life. If property
52 on which credit has been taken is disposed of or ceases to be in quali-
53 fied use prior to the end of its useful life, the difference between the
54 credit taken and the credit allowed for actual use must be added back in
55 the year of disposition. Provided, however, if such property is disposed
56 of or ceases to be in qualified use after it has been in qualified use
S. 6292 58 A. 9292
1 for more than twelve consecutive years, it shall not be necessary to add
2 back the credit as provided in this paragraph. The amount of credit
3 allowed for actual use shall be determined by multiplying the original
4 credit by the ratio which the months of qualified use bear to the months
5 of useful life. For purposes of this paragraph, useful life of property
6 shall be the same as the taxpayer uses for depreciation purposes when
7 computing his federal income tax liability.
8 (2) Except with respect to that property to which paragraph four of
9 this subdivision applies, with respect to qualified tangible property
10 which is three-year property, as defined in subsection (e) of section
11 one hundred sixty-eight of the internal revenue code, which is disposed
12 of or ceases to be in qualified use prior to the end of the taxable year
13 in which the credit is to be taken, the amount of the credit shall be
14 that portion of the credit provided for in this section which represents
15 the ratio which the months of qualified use bear to thirty-six. If prop-
16 erty on which credit has been taken is disposed of or ceases to be in
17 qualified use prior to the end of thirty-six months, the difference
18 between the credit taken and the credit allowed for actual use must be
19 added back in the year of disposition. The amount of credit allowed for
20 actual use shall be determined by multiplying the original credit by the
21 ratio which the months of qualified use bear to thirty-six.
22 (3) Except with respect to that property to which paragraph four of
23 this subdivision applies, with respect to qualified tangible property
24 which is subject to the provisions of section one hundred sixty-eight of
25 the internal revenue code other than three-year property as defined in
26 subsection (e) of such section one hundred sixty-eight which is disposed
27 of or ceases to be in qualified use prior to the end of the taxable year
28 in which the credit is to be taken, the amount of the credit shall be
29 that portion of the credit provided for in this section which represents
30 the ratio which the months of qualified use bear to sixty. If property
31 on which credit has been taken is disposed of or ceases to be in quali-
32 fied use prior to the end of sixty months, the difference between the
33 credit taken and the credit allowed for actual use must be added back in
34 the year of disposition. The amount of credit allowed for actual use
35 shall be determined by multiplying the original credit by the ratio
36 which the months of qualified use bear to sixty.
37 (4) With respect to any qualified tangible property to which section
38 one hundred sixty-eight of the internal revenue code applies, which is a
39 building or a structural component of a building and which is disposed
40 of or ceases to be in qualified use prior to the end of the taxable year
41 in which the credit is to be taken, the amount of the credit shall be
42 that portion of the credit provided for in this section which represents
43 the ratio which the months of qualified use bear to the total number of
44 months over which the taxpayer chooses to deduct the property under the
45 internal revenue code. If property on which credit has been taken is
46 disposed of or ceases to be in qualified use prior to the end of the
47 period over which the taxpayer chooses to deduct the property under the
48 internal revenue code, the difference between the credit taken and the
49 credit allowed for actual use must be added back in the year of disposi-
50 tion. Provided, however, if such property is disposed of or ceases to be
51 in qualified use after it has been in qualified use for more than twelve
52 consecutive years, it shall not be necessary to add back the credit as
53 provided in this paragraph. The amount of credit allowed for actual use
54 shall be determined by multiplying the original credit by the ratio
55 which the months of qualified use bear to the total number of months
S. 6292 59 A. 9292
1 over which the taxpayer chooses to deduct the property under the inter-
2 nal revenue code.
3 (e) Cross-references. For application of the credit provided for in
4 this section, see the following provisions of this chapter:
5 (1) Article 9: Section 187-f
6 (2) Article 9-A: Section 210, subdivision (33)
7 (3) Article 22: Section 606, subdivisions (i) and (aa)
8 (4) Article 32: Section 1456, subdivision (k)
9 (5) Article 33: Section 1511, subdivision (q).
10 § 40. The tax law is amended by adding a new section 187-f to read as
11 follows:
12 § 187-f. Brownfield redevelopment tax credit. 1. Allowance of credit.
13 A taxpayer shall be allowed a credit, to be computed as provided in
14 section twenty-one of this chapter, against the taxes imposed by
15 sections one hundred eighty-three, one hundred eighty-four, one hundred
16 eighty-five and one hundred eighty-six of this article. Provided, howev-
17 er, that the amount of such credit allowable against the tax imposed by
18 section one hundred eighty-four of this article shall be the excess of
19 the amount of such credit over the amount of any credit allowed by this
20 section against the tax imposed by section one hundred eighty-three of
21 this article.
22 2. Carryovers. In no event shall the credit under this section be
23 allowed in an amount which will reduce the tax payable to less than the
24 applicable minimum tax fixed by section one hundred eighty-three, one
25 hundred eighty-five or one hundred eighty-six of this article. If,
26 however, the amount of credit allowable under this section for any taxa-
27 ble year reduces the tax to such amount, any amount of credit not deduc-
28 tible in such taxable year may be carried over to the following year or
29 years and may be deducted from the taxpayer's tax for such year or
30 years. In lieu of such carryover, any such taxpayer which qualifies as a
31 corporate new business under paragraph five of subdivision (b) of
32 section twenty-one of this chapter may elect, on its report for its
33 taxable year with respect to which such credit is allowed, to treat
34 fifty percent of the amount of such carryover as an overpayment of tax
35 to be credited or refunded in accordance with the provisions of section
36 ten hundred eighty-six of this chapter. Provided, however, the
37 provisions of subsection (c) of section ten hundred eighty-eight of this
38 chapter notwithstanding, no interest shall be paid thereon.
39 § 41. Section 210 of the tax law is amended by adding a new subdivi-
40 sion 33 to read as follows:
41 33. Brownfield redevelopment tax credit. (a) Allowance of credit. A
42 taxpayer shall be allowed a credit, to be computed as provided in
43 section twenty-one of this chapter, against the tax imposed by this
44 article.
45 (b) Carryovers. The credit and carryovers of such credit allowed under
46 this subdivision for any taxable year shall not, in the aggregate,
47 reduce the tax due for such year to less than the higher of the amounts
48 prescribed in paragraphs (c) and (d) of subdivision one of this section.
49 However, if the amount of credit or carryovers of such credit, or both,
50 allowed under this subdivision for any taxable year reduces the tax to
51 such amount, any amount of credit or carryovers of such credit thus not
52 deductible in such taxable year may be carried over to the following
53 year or years and may be deducted from the tax for such year or years.
54 In lieu of such carryover, any such taxpayer which qualifies as a corpo-
55 rate new business under paragraph six of subdivision (b) of section
56 twenty-one of this chapter may elect, on its report for its taxable year
S. 6292 60 A. 9292
1 with respect to which such credit is allowed, to treat fifty percent of
2 the amount of such carryover as an overpayment of tax to be credited or
3 refunded in accordance with the provisions of section ten hundred eight-
4 y-six of this chapter. Provided, however, the provisions of subsection
5 (c) of section ten hundred eighty-eight of this chapter notwithstanding,
6 no interest shall be paid thereon.
7 § 42. Paragraph 1 of subsection (i) of section 606 of the tax law, as
8 amended by section 1 of part I of chapter 407 of the laws of 1999, is
9 amended to read as follows:
10 (1) For purposes of determining the application under this section of
11 the credit provisions enumerated in the following table, a shareholder
12 of a New York S corporation:
13 (A) shall be treated as the taxpayer with respect to his or her pro
14 rata share of the corresponding credit base of such corporation, deter-
15 mined for the corporation's taxable year ending with or within the
16 shareholder's taxable year and
17 (B) shall be treated as the owner of a new business with respect to
18 such share if the corporation qualifies as a new business pursuant to
19 paragraph (j) of subdivision twelve of section two hundred ten of this
20 chapter, unless the shareholder has previously received a refund by
21 reason of the application of this subparagraph, or this subsection as it
22 was in effect for taxable years beginning before nineteen hundred nine-
23 ty-four.
24 The corporation's
25 With respect to the credit base under
26 following credit section two hundred ten
27 under this section: or section fourteen
28 hundred fifty-six of this
29 chapter is:
30 Investment tax credit Investment credit base
31 under subsection (a) or qualified
32 rehabilitation
33 expenditures under
34 subdivision twelve of
35 section two hundred ten
36 Economic development Cost or other basis
37 zone investment tax credit under subdivision
38 under subsection (j) twelve-B
39 of section two hundred
40 ten
41 Economic development Eligible wages under
42 zone wage tax credit subdivision nineteen of
43 under subsection (k) section two hundred ten
44 or subsection (e) of
45 section fourteen hundred
46 fifty-six
47 Economic development zone Qualified investments
48 capital tax credit and contributions under
49 under subsection (1) subdivision twenty of
50 section two hundred ten
51 or subsection (d) of
52 section fourteen hundred
53 fifty-six
54 Agricultural property tax Allowable school
55 credit under subsection (n) district property taxes under
S. 6292 61 A. 9292
1 subdivision twenty-two of
2 section two hundred ten
3 Credit for employment Qualified first-year wages or
4 of persons with dis- qualified second-year wages
5 abilities under under subdivision
6 subsection (o) twenty-three of section
7 two hundred ten
8 or subsection (f)
9 of section fourteen
10 hundred fifty-six
11 Employment incentive Applicable investment credit
12 credit under subsec- base under subdivision
13 tion (a-1) twelve-D
14 Economic develop- Applicable investment
15 ment zone employment credit under sub-
16 incentive credit under division twelve-C
17 subsection (j-1)
18 Alternative fuels credit Cost under subdivision
19 under subsection (p) twenty-four
20 Qualified emerging Applicable credit base
21 technology company under subdivision twelve-E
22 employment credit of section two hundred ten
23 under subsection (q)
24 Qualified emerging Qualified investments under
25 technology company subdivision twelve-F of
26 capital tax credit section two hundred ten
27 under subsection (r)
28 Brownfield redevelopment Applicable cost
29 credit under subsection (aa) or other basis
30 under subdivision thirty-three
31 of section two hundred ten
32 or subsection (o) of section
33 fourteen hundred fifty-six
34 § 42-a. Paragraph 1 of subsection (i) of section 606 of the tax law,
35 as amended by section 2 of part J of chapter 407 of the laws of 1999, is
36 amended to read as follows:
37 (1) For purposes of determining the application under this section of
38 the credit provisions enumerated in the following table, a shareholder
39 of a New York S corporation:
40 (A) shall be treated as the taxpayer with respect to his or her pro
41 rata share of the corresponding credit base of such corporation, deter-
42 mined for the corporation's taxable year ending with or within the
43 shareholder's taxable year and
44 (B) shall be treated as the owner of a new business with respect to
45 such share if the corporation qualifies as a new business pursuant to
46 paragraph (j) of subdivision twelve of section two hundred ten of this
47 chapter, unless the shareholder has previously received a refund by
48 reason of the application of this subparagraph, or this subsection as it
49 was in effect for taxable years beginning before nineteen hundred nine-
50 ty-four.
51 The corporation's
52 With respect to the credit base under
53 following credit section two hundred ten
54 under this section: or section fourteen
55 hundred fifty-six of this
S. 6292 62 A. 9292
1 chapter is:
2 Investment tax credit Investment credit base
3 under subsection (a) or qualified
4 rehabilitation
5 expenditures under
6 subdivision twelve of
7 section two hundred ten
8 Economic development Cost or other basis
9 zone investment tax credit under subdivision
10 under subsection (j) twelve-B
11 of section two hundred
12 ten
13 Economic development Eligible wages under
14 zone wage tax credit subdivision nineteen of
15 under subsection (k) section two hundred ten
16 or subsection (e) of
17 section fourteen hundred
18 fifty-six
19 Economic development zone Qualified investments
20 capital tax credit and contributions under
21 under subsection (1) subdivision twenty of
22 section two hundred ten
23 or subsection (d) of
24 section fourteen hundred
25 fifty-six
26 Agricultural property tax Allowable school
27 credit under subsection (n) district property taxes under
28 subdivision twenty-two of
29 section two hundred ten
30 Credit for employment Qualified first-year wages or
31 of persons with dis- qualified second-year wages
32 abilities under under subdivision
33 subsection (o) twenty-three of section
34 two hundred ten
35 or subsection (f)
36 of section fourteen
37 hundred fifty-six
38 Employment incentive Applicable investment credit
39 credit under subsec- base under subdivision
40 tion (a-1) twelve-D
41 Economic develop- Applicable investment
42 ment zone employment credit under sub-
43 incentive credit under division twelve-C
44 subsection (j-1)
45 Alternative fuels credit Cost under subdivision
46 under subsection (p) twenty-four
S. 6292 63 A. 9292
1 Qualified emerging Applicable credit base
2 technology company under subdivision twelve-E
3 employment credit of section two hundred ten
4 under subsection (q)
5 Qualified emerging Qualified investments under
6 technology company subdivision twelve-F of
7 capital tax credit section two hundred ten
8 under subsection (r)
9 Credit for purchase of an Cost of an automated
10 automated external defibrillator external defibrillator under
11 under subsection (s) subdivision twenty-five of
12 section two hundred ten
13 or subsection (j) of section
14 fourteen hundred fifty-six
15 Brownfield redevelopment Applicable cost
16 credit under subsection (aa) or other basis
17 under subdivision thirty-three
18 of section two hundred ten
19 or subsection (o) of section
20 fourteen hundred fifty-six
21 § 43. Section 606 of the tax law is amended by adding a new subsection
22 (aa) to read as follows:
23 (aa) 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) Carryovers. If the amount of the credit and carryovers of such
28 credit allowed under this subsection for any taxable year shall exceed
29 the taxpayer's tax for such year, the excess, as well as any part of the
30 credit or carryovers of such credit, or both, may be carried over to the
31 following year or years and may be deducted from the taxpayer's tax for
32 such year or years. In lieu of carrying over any such excess, a taxpayer
33 who qualifies as an owner of a new business for purposes of paragraph
34 ten of subsection (a) of this section may, at his option, receive fifty
35 percent of such excess as a refund. Any refund paid pursuant to this
36 paragraph shall be deemed to be a refund of an overpayment of tax as
37 provided in section six hundred eighty-six of this article, provided,
38 however, that no interest shall be paid thereon. For purposes of this
39 section, in reading such paragraph ten, references therein to the
40 investment tax credit provided for under subsection (a) of this section
41 shall be deemed to refer to the credit provided for under this
42 subsection, and shall be read accordingly.
43 § 44. Subsection (c) of section 683 of the tax law is amended by
44 adding a new paragraph 10 to read as follows:
45 (10) Reports concerning a remediation certificate. If a taxpayer's
46 remediation certificate issued pursuant to section 27-1413 of the envi-
47 ronmental conservation law is modified or revoked by a determination
48 issued pursuant to subdivision six of section 27-1413 of the environ-
49 mental conservation law, any tax liability generated by reason of such
50 modification or revocation may be assessed within one year after such
51 determination is final and is no longer subject to judicial review and
52 the taxpayer shall be allowed to offset against such tax liability the
53 amount of any of the credits provided for under subsection (a) or (j) of
54 section six hundred six of this article which the taxpayer would have
S. 6292 64 A. 9292
1 been allowed with respect to amounts which were the basis for the credit
2 provided for under such section twenty-one which is the subject of such
3 assessment.
4 § 45. Subsection (a) of section 687 of the tax law, as amended by
5 chapter 309 of the laws of 1996, is amended to read as follows:
6 (a) General.--Claim for credit or refund of an overpayment of income
7 tax shall be filed by the taxpayer within (i) three years from the time
8 the return was filed [or], (ii) two years from the time the tax was
9 paid, or (iii) in the case of any overpayment arising from an erroneous
10 denial by the department of environmental conservation of a remediation
11 certificate pursuant to section 27-1413 of the environmental conserva-
12 tion law, two years from the time a final determination to the effect
13 that such denial was erroneous is made and is no longer subject to judi-
14 cial review, whichever of such periods expires the [later] latest, or if
15 no return was filed, within two years from the time the tax was paid. If
16 the claim is filed within the three year period, the amount of the cred-
17 it or refund shall not exceed the portion of the tax paid within the
18 three years immediately preceding the filing of the claim plus the peri-
19 od of any extension of time for filing the return unless such claim is
20 for a credit or a portion thereof provided pursuant to paragraph two or
21 four of subsection (c), paragraph two or four of subsection (d) or
22 subsection (e) of section six hundred six of this chapter. If the claim
23 is not filed within the three year period, but is filed within the two
24 year period, the amount of the credit or refund shall not exceed the
25 portion of the tax paid during the two years immediately preceding the
26 filing of the claim unless such claim is for a credit or a portion ther-
27 eof provided pursuant to paragraph two or four of subsection (c), para-
28 graph two or four of subsection (d) or subsection (e) of section six
29 hundred six of this chapter. In the case of a claim for credit or
30 refund filed within the period prescribed in paragraph (iii) of this
31 subsection, the amount of the credit or refund may exceed the portion of
32 the tax paid within the applicable period specified in the two imme-
33 diately preceding sentences, but only to the extent of the amount of the
34 overpayment attributable to the denial described in such paragraph
35 (iii). Except as otherwise provided in this section, if no claim is
36 filed, the amount of a credit or refund shall not exceed the amount
37 which would be allowable if a claim had been filed on the date the cred-
38 it or refund is allowed.
39 § 46. Subsection (c) of section 1083 of the tax law is amended by
40 adding a new paragraph 10 to read as follows:
41 (10) Reports concerning a remediation certificate. If a taxpayer's
42 remediation certificate issued pursuant to section 27-1413 of the envi-
43 ronmental conservation law is modified or revoked by a determination
44 issued pursuant to subdivision six of section 27-1413 of the environ-
45 mental conservation law, any tax liability generated by reason of such
46 modification or revocation may be assessed within one year after such
47 determination is final and is no longer subject to judicial review and
48 the taxpayer shall be allowed to offset against such tax liability the
49 amount of any of the credits provided for under subdivision twelve or
50 twelve-B of section two hundred ten, or subsection (i) of section four-
51 teen hundred fifty-six of this chapter which the taxpayer would have
52 been allowed with respect to amounts which were the basis for the credit
53 provided for under such section twenty-one which is the subject of such
54 assessment.
55 § 47. Subsection (a) of section 1087 of the tax law, as amended by
56 chapter 55 of the laws of 1982, is amended to read as follows:
S. 6292 65 A. 9292
1 (a) General.--Claim for credit or refund of an overpayment of tax
2 under article nine[, nine-a, nine-b or nine-c] or nine-A shall be filed
3 by the taxpayer within (i) three years from the time the return was
4 filed [or], (ii) two years from the time the tax was paid or (iii) in
5 the case of any overpayment arising from an erroneous denial by the
6 department of environmental conservation of a remediation certificate
7 pursuant to section 27-1413 of the environmental conservation law, two
8 years from the time a final determination to the effect that such denial
9 was erroneous is made and is no longer subject to judicial review,
10 whichever of such periods expires the [later] latest, or if no return
11 was filed, within two years from the time the tax was paid. If the
12 claim is filed within the three year period, the amount of the credit or
13 refund shall not exceed the portion of the tax paid within the three
14 years immediately preceding the filing of the claim plus the period of
15 any extension of time for filing the return. If the claim is not filed
16 within the three year period, but is filed within the two year period,
17 the amount of the credit or refund shall not exceed the portion of the
18 tax paid during the two years immediately preceding the filing of the
19 claim. In the case of a claim for credit or refund filed within the
20 period prescribed in paragraph (iii) of this subsection, the amount of
21 the credit or refund may exceed the portion of the tax paid within the
22 applicable period specified in the two immediately preceding sentences,
23 but only to the extent of the amount of the overpayment attributable to
24 the denial described in such paragraph (iii) of this subsection. Except
25 as otherwise provided in this section, if no claim is filed, the amount
26 of a credit or refund shall not exceed the amount which would be allow-
27 able if a claim had been filed on the date the credit or refund is
28 allowed. For special restriction in a proceeding on a claim for refund
29 of tax paid pursuant to an assessment made as a result of (i) a net
30 operating loss carryback or capital loss carryback, or (ii) an increase
31 or decrease in federal taxable income or federal tax, or (iii) a federal
32 change or correction or renegotiation, or computation or recomputation
33 of tax, which is treated in the same manner as if it were a deficiency
34 for federal income tax purposes, see paragraph (7) of subsection (c) of
35 section one thousand eighty-three.
36 § 48. Section 1456 of the tax law is amended by adding a new
37 subsection (o) to read as follows:
38 (o) Brownfield redevelopment tax credit. (1) Allowance of credit. A
39 taxpayer shall be allowed a credit, to be computed as provided in
40 section twenty-one of this chapter, against the tax imposed by this
41 article.
42 (2) Carryover. The credit and carryovers of such credit allowed under
43 this subsection for any taxable year shall not, in the aggregate, reduce
44 the tax due for such year to less than the minimum tax fixed by
45 subsection (b) of section fourteen hundred fifty-five of this article.
46 However, if the amount of credit or carryovers of such credit, or both,
47 allowed under this subsection for any taxable year reduces the tax to
48 such amount, then any amount of credit or carryovers of such credit thus
49 not deductible in such taxable year may be carried over to the following
50 year or years and may be deducted from the taxpayer's tax for such year
51 or years. In lieu of such carryover, any such taxpayer which qualifies
52 as a corporate new business under paragraph six of subdivision (b) of
53 section twenty-one of this chapter may elect, on its report for its
54 taxable year with respect to which such credit is allowed, to treat
55 fifty percent of the amount of such carryover as an overpayment of tax
56 to be credited or refunded in accordance with the provisions of section
S. 6292 66 A. 9292
1 ten hundred eighty-six of this chapter. Provided, however, the
2 provisions of subsection (c) of section ten hundred eighty-eight of this
3 chapter notwithstanding, no interest shall be paid thereon.
4 § 49. Section 1511 of the tax law is amended by adding a new subdivi-
5 sion (q) to read as follows:
6 (q) Brownfield redevelopment tax credit. (1) Allowance of credit. A
7 taxpayer shall be allowed a credit, to be computed as provided in
8 section twenty-one of this chapter, against the taxes imposed by this
9 article.
10 (2) Carryover. The credit and carryovers of such credit allowed under
11 this subdivision for any taxable year shall not, in the aggregate,
12 reduce the tax due for such year to less than the minimum fixed by para-
13 graph four of subdivision (a) of section fifteen hundred two of this
14 article. However, if the amount of credit or carryovers of such credit,
15 or both, allowed under this subdivision for any taxable year reduces the
16 tax to such amount, then any amount of credit or carryovers of such
17 credit thus not deductible in such taxable year may be carried over to
18 the following year or years and may be deducted from the taxpayer's tax
19 for such year or years. In lieu of such carryover, any such taxpayer
20 which qualifies as a corporate new business under paragraph six of
21 subdivision (b) of section twenty-one of this chapter may elect, on its
22 report for its taxable year with respect to which such credit is
23 allowed, to treat fifty percent of the amount of such carryover as an
24 overpayment of tax to be credited or refunded in accordance with the
25 provisions of section ten hundred eighty-six of this chapter. Provided,
26 however, the provisions of subsection (c) of section ten hundred eight-
27 y-eight of this chapter notwithstanding, no interest shall be paid ther-
28 eon.
29 § 50. This act shall take effect immediately, provided that sections
30 twenty-nine, thirty, thirty-four, thirty-five, thirty-six and thirty-
31 seven of this act shall take effect April 1, 2001, and provided further
32 that sections thirty-nine, forty, forty-one, forty-two, forty-three,
33 forty-eight and forty-nine of this act shall apply to taxable years
34 beginning on or after January 1, 2000 and section forty-two-a of this
35 act shall apply to taxable years beginning on or after January 1, 2001,
36 but only to site costs incurred and property placed in service after the
37 date this act shall have become a law. Provided further, subdivisions
38 13 and 14 of section 97-b of the state finance law, as designated by
39 section twenty-nine of this act, shall be deemed repealed effective
40 April first of the state fiscal year following the certification
41 provided for in subdivision 15 of such section 97-b; and provided
42 further that the state comptroller shall notify the legislative bill
43 drafting commission upon the occurrence of the certification provided
44 for in subdivision 15 of section 97-b of the state finance law in order
45 that the commission may maintain an accurate and timely effective data
46 base of the official text of the laws of the state of New York in furth-
47 erance of effecting the provisions of section 44 of the legislative law
48 and section 70-b of the public officers law.
49 PART F
50 Section 1. Subdivision 2 of section 11-0305 of the environmental
51 conservation law is amended to read as follows:
52 2. To issue the licenses and permits provided for by law, to fix their
53 terms, and the fees therefor, when no statutory provision is made, to
54 designate agents to sell and promote the sale of licenses, to adopt
S. 6292 67 A. 9292
1 procedures for the issuance of licenses, to establish the design and
2 format of licenses and the information to be contained thereon, to
3 provide where it deems appropriate for tags and buttons, to adopt proce-
4 dures respecting tagging or identifying fish and wildlife being
5 possessed or transported, to establish procedures and requirements for
6 reporting license sales and handling and remittance of license revenues
7 by persons or entities issuing such licenses, to provide for acceptable
8 methods of payment of license fees, and to revoke licenses and permits
9 as provided by law;
10 § 2. Section 11-0305 of the environmental conservation law is amended
11 by adding a new subdivision 18 to read as follows:
12 18. To prepare or cause to be prepared voluntary habitat stamps and
13 furnish such stamps annually to license issuing agents and officers for
14 sale and issuance in the same manner as licenses and other types of
15 stamps. The department shall, by rule, establish the fee for the habi-
16 tat stamp which shall not exceed five dollars plus an additional amount
17 for the issuing agent or officer. The purchase of a stamp is voluntary
18 and a stamp need not be possessed in order to take fish or wildlife.
19 § 3. Subdivision 3 of section 11-0327 of the environmental conserva-
20 tion law is amended by adding a new paragraph (g) to read as follows:
21 (g) To review the department's planned expenditures for fish and wild-
22 life purposes. The department shall, by the first day of October of each
23 year, submit to the board for its review planned expenditures by time
24 and activity code for all fish and wildlife programs for the next fiscal
25 year.
26 § 4. Subparagraph 1 of paragraph a of subdivision 2 of section 11-0701
27 of the environmental conservation law is REPEALED and a new subparagraph
28 1 is added to read as follows:
29 (1) A small and big game license entitles the resident holder to hunt
30 wildlife subject to the following:
31 (i) a holder who is eighteen years of age or older may hunt wildlife
32 as provided in title 9 of this article,
33 (ii) a holder who is sixteen years of age or older may hunt wildlife,
34 except big game, as provided in title 9 of this article, and
35 (iii) a holder who is between the ages of sixteen and eighteen may
36 hunt big game pursuant to the provisions of title 9 of this article
37 while the holder is accompanied by a parent, guardian or person over the
38 age of eighteen as required by section 11-0929 of this article.
39 A holder may take fish with a gun or longbow as provided in titles 9
40 and 13 of this article.
41 § 5. Paragraph b of subdivision 2 of section 11-0701 of the environ-
42 mental conservation law is amended to read as follows:
43 b. A special antlerless deer license is applicable to the hunting of
44 wild antlerless deer in a special open season fixed pursuant to subdivi-
45 sion 6 of section 11-0903 of this article in a tract within a Wilderness
46 Hunting Area and entitles the holder of a small and big game license who
47 is entitled to hunt wild deer as provided in paragraph a to hunt antler-
48 less deer in such special open season, as provided in title 9 of this
49 article if he has on his person while so hunting both his small and big
50 game license and his special antlerless deer license.
51 § 6. Paragraph c of subdivision 2 of section 11-0701 of the environ-
52 mental conservation law, as amended by chapter 57 of the laws of 1993,
53 is amended to read as follows:
54 c. A junior archery license entitles a resident holder who is between
55 the ages of fourteen and sixteen years to hunt wild deer and bear with a
56 longbow during the special archery season and during the regular season
S. 6292 68 A. 9292
1 [in areas restricted to bowhunting only], as provided in title 9 of this
2 article, as if such person held a big game license with a bowhunting
3 stamp affixed, subject to the provisions of section 11-0929 and subdivi-
4 sion 6 of section 11-0713 of this article. It entitles a non-resident
5 holder who is between the ages of fourteen and sixteen years to hunt
6 wild deer and bear with a longbow during the special archery season and
7 during the regular season [in areas restricted to bowhunting only], as
8 provided in title 9 of this article, as if such person held a non-resi-
9 dent bowhunting license, a non-resident big game license and a non-resi-
10 dent bear tag, subject to the provisions of section 11-0929 and subdivi-
11 sion [six] 6 of section 11-0713 of this article.
12 § 7. Paragraphs d and e of subdivision 2 of section 11-0701 of the
13 environmental conservation law are REPEALED.
14 § 8. Subdivision 3 of section 11-0701 of the environmental conserva-
15 tion law, as amended by chapter 160 of the laws of 1979, is amended to
16 read as follows:
17 3. A bowhunting stamp when affixed to a small and big game license
18 entitles a holder who is eighteen years of age or older to hunt wild
19 deer and bear with a longbow, as provided in title 9 of this article, in
20 a special longbow season, and it entitles a holder who is between the
21 ages of sixteen and eighteen years to exercise the same privileges
22 subject to the provisions of section 11-0929 and subdivision 6 of
23 section 11-0713 of this article.
24 § 9. Subdivision 5 of section 11-0701 of the environmental conserva-
25 tion law, as amended by chapter 57 of the laws of 1993, is amended to
26 read as follows:
27 5. a. A combined resident [hunting,] fishing and small and big game
28 license, hereinafter in this article referred to as a sportsman license,
29 entitles the holder to the privileges the holder would have if the hold-
30 er held separately a [hunting, a] fishing and a small and big game
31 license.
32 b. A combined resident small and big game, fishing, bowhunting and
33 muzzle-loading license, hereinafter in this article referred to as a
34 super-sportsman license, entitles the holder to the privileges the hold-
35 er would have if the holder held separately a small and big game
36 license, a fishing license, and a bowhunting stamp, a muzzle-loading
37 stamp and a turkey permit.
38 § 10. Subdivision 6 of section 11-0701 of the environmental conserva-
39 tion law, as amended by chapter 646 of the laws of 1977 and as renum-
40 bered by chapter 208 of the laws of 1978 and the opening paragraph as
41 redesignated by chapter 450 of the laws of 1991, is amended to read as
42 follows:
43 6. A combination free [hunting-big] small and big game hunting-fishing
44 license entitles the holder to the privileges he would have if he held,
45 separately, a [hunting,] small and big game hunting and fishing license,
46 provided, however, if the said combination free [hunting-big] small and
47 big game hunting-fishing license is stamped by the issuing clerk "FISH-
48 ING ONLY" the holder is entitled only to the privileges he would have if
49 he held a fishing license.
50 § 11. Subdivision 8 of section 11-0701 of the environmental conserva-
51 tion law, as amended by chapter 450 of the laws of 1991, is amended to
52 read as follows:
53 8. A [five-day] seven-day fishing license entitles the [non-resident]
54 holder to exercise the privileges of a fishing license for the [five]
55 seven consecutive days specified in the license.
S. 6292 69 A. 9292
1 § 12. Subdivision 9 of section 11-0701 of the environmental conserva-
2 tion law is REPEALED.
3 § 13. Subdivision 11 of section 11-0701 of the environmental conserva-
4 tion law, as added by chapter 198 of the laws of 1977 and as renumbered
5 by chapter 470 of the laws of 1994, is amended to read as follows:
6 11. A muzzle-loading stamp when affixed to a small and big game
7 license entitles a holder who is sixteen years of age or older to hunt
8 wild deer and bear with a muzzle-loading firearm, as provided in title
9 [nine] 9 of this article, in a special muzzle-loading firearm season.
10 § 14. Subdivision 12 of section 11-0701 of the environmental conserva-
11 tion law, as added by chapter 450 of the laws of 1991 and as renumbered
12 by chapter 470 of the laws of 1994, is amended to read as follows:
13 12. a. A junior [hunting] small game license entitles the holder age
14 twelve to age [sixteen] thirteen to hunt [small game] wildlife, except
15 big game, as provided in title 9 of this article subject, specifically,
16 to the provisions of section 11-0929 of this article. It entitles such
17 holder to possess firearms as provided in section 265.05 of the penal
18 law.
19 b. A junior small and big game license entitles the holder age four-
20 teen to age sixteen to hunt wildlife, except big game, pursuant to the
21 provisions of title 9 of this article and to hunt big game during the
22 special muzzle-loading season and during the regular season, as provided
23 in title 9 of this article, as if such person held a big game license
24 with a muzzle-loading stamp affixed, provided that the holder is accom-
25 panied by a parent, guardian or person over the age of eighteen as
26 required by section 11-0929 of this article.
27 § 15. Subdivisions 13, 14 and 15 of section 11-0701 of the environ-
28 mental conservation law, as added by chapter 57 of the laws of 1993 and
29 as renumbered by chapter 470 of the laws of 1994, are amended to read as
30 follows:
31 13. A non-resident bowhunting license entitles a person who has not
32 been a resident of the state for more than thirty days to hunt wild deer
33 with a longbow in a special longbow season [and during the regular
34 season] as provided for in title 9 of this article and, when accompanied
35 by a non-resident bear tag, entitles the holder to hunt bear with a
36 longbow during the open bear season.
37 14. A non-resident muzzle-loading license entitles a person who has
38 not been a resident of the state for more than thirty days to hunt wild
39 deer with a muzzleloader in a special muzzle-loading season [and during
40 the regular season] as provided for in title 9 of this article and, when
41 accompanied by a non-resident bear tag, entitles the holder to hunt bear
42 with a muzzleloader during the open bear season.
43 15. A non-resident combined hunting, fishing, big game, bowhunting and
44 muzzle-loading license, hereinafter in this article referred to as a
45 super-sportsman license, entitles a person who has not been a resident
46 of the state for more than thirty days to the privileges that the holder
47 would have if the holder held separately a non-resident hunting, a non-
48 resident fishing, a non-resident big game, a non-resident bowhunting and
49 a non-resident muzzle-loading license, except that only one bear may be
50 taken.
51 § 16. Subdivision 1 of section 11-0702 of the environmental conserva-
52 tion law, as amended by chapter 57 of the laws of 1993 and paragraph a
53 as amended by chapter 245 of the laws of 1995, is amended to read as
54 follows:
55 1. There are hereby created the following lifetime hunting, fishing,
56 trapping, archery and muzzle-loading licenses and fees therefor subject
S. 6292 70 A. 9292
1 to the same privileges and obligations of a comparable short term
2 license:
3 Licenses Fees
4 a. Lifetime resident combined
5 [hunting,] fishing and small
6 and big game license.
7 If purchased, for a child four
8 years of age or younger [$250.00] $285.00
9 for a child age five through
10 eleven years of age [$350.00] $395.00
11 for a person age twelve through
12 sixty-four years of age [$500.00] $565.00
13 for a person age sixty-five
14 and over. $ 50.00
15 b. Lifetime resident [hunting]
16 small and big game license. [$250.00] $340.00
17 c. Lifetime resident fishing
18 license. [$250.00] $340.00
19 d. Lifetime resident trapping
20 license. [$250.00] $290.00
21 e. Lifetime resident archery
22 stamp. [$125.00] $170.00
23 f. Lifetime resident muzzle-
24 loading stamp. [$125.00
25 g. Lifetime resident big game hunting
26 license. $250.00] $170.00
27 The holder of a lifetime resident hunting, big game or fishing license
28 may, at any time, convert such license to a lifetime resident combined
29 hunting, fishing and big game license for an additional fee equal to the
30 existing differential.
31 § 17. Subdivision 2 of section 11-0703 of the environmental conserva-
32 tion law, as amended by chapter 57 of the laws of 1993, is amended to
33 read as follows:
34 2. No license, permit, tag or stamp is transferable. No person shall
35 alter, change, lend to another or attempt to transfer to another any
36 license or any button, permit, tag or stamp issued therewith. No person,
37 while hunting, shall possess a license, button, permit, tag or stamp
38 which was issued to another person unless actually accompanied by the
39 person to whom such license, button, permit, tag or stamp was issued. No
40 person shall purchase, possess or use more than one junior archery,
41 junior small and big game, small game and big game, big game, [combined
42 resident hunting, fishing and big game] bowhunting, muzzle-loading,
43 sportsman, super-sportsman, non-resident bowhunting or muzzle-loading,
44 combined non-resident hunting, fishing, big game, bowhunting and
45 muzzle-loading license, non-resident bear tag or special permit for the
S. 6292 71 A. 9292
1 current license year, except as permitted by rule or regulation of the
2 department.
3 § 18. Subdivision 3 of section 11-0703 of the environmental conserva-
4 tion law, paragraph b as amended by 646 of the laws of 1977 and subpara-
5 graph 1 of paragraph b as amended by chapter 57 of the laws of 1993, is
6 amended to read as follows:
7 3. [a.] Any license, stamp or certificate in lieu of a lost or
8 destroyed license, obtained by fraud, or by a person not authorized to
9 hold it, or who makes a false statement in applying for it, is void.
10 [b. (1) A big game, junior archery, non-resident bowhunting or
11 muzzle-loading license or the big game license portion of a combined
12 resident hunting, fishing and big game license or combined non-resident
13 hunting, fishing, big game, bowhunting and muzzle-loading license is
14 void for the taking of deer if the license tag or tags marked "dupli-
15 cate" provided for in section 11-0713 is detached from the license tag
16 marked "original".
17 (2) The big game license portion of a combination free hunting-big
18 game hunting-fishing license is void for the taking of deer if the
19 license tag marked "duplicate" provided for in section 11-0713 is
20 detached from the license tag marked "original".]
21 § 19. Subdivision 4 of section 11-0703 of the environmental conserva-
22 tion law, as amended by chapter 450 of the laws of 1991, paragraphs a,
23 b, c and d as amended by chapter 57 of the laws of 1993 and paragraph e
24 as relettered by chapter 470 of the laws of 1994, is amended to read as
25 follows:
26 4. a. [Five-day] Non-resident fishing licenses, combined non-resident
27 hunting, fishing, big game, bowhunting and muzzle-loading, non-resident
28 bowhunting or muzzle-loading and non-resident trapping licenses and
29 non-resident bear tags are issuable only to non-residents and persons
30 who have been residents for less than thirty days immediately preceding
31 the date of application.
32 b. A person under the age of fourteen years is ineligible for a junior
33 small and big game or a junior archery license. A person under the age
34 of sixteen years is ineligible for a small and big game license, a
35 [combined resident hunting, fishing and big game] sportsman or super-
36 sportsman license, combined non-resident hunting, fishing, big game,
37 bowhunting, and muzzle-loading, non-resident bowhunting, non-resident
38 muzzle-loading license, a muzzle-loading stamp or a bowhunting stamp. A
39 person is ineligible for a hunting, small and big game, junior small and
40 big game, big game, junior archery, [combined resident hunting, fishing
41 and big game] sportsman and super-sportsman, combined non-resident hunt-
42 ing, fishing, big game, bowhunting and muzzle-loading, non-resident
43 bowhunting or non-resident muzzle-loading license unless he meets the
44 requirements of subdivision 6 of section 11-0713 of this article.
45 c. Only the following persons are eligible for [a combined] resident
46 [hunting, fishing and big game license] licenses: (1) persons who have
47 been residents in the state for more than thirty days immediately
48 preceding the date of application for the licenses, or who are enrolled
49 in a full-time course at a college or university within the state and
50 who are in residence in the state for the school year, or who are out of
51 state or foreign exchange high school students enrolled in a full-time
52 course in a high school within the state and who are in residence in the
53 state for the school year; (2) Indian residents or members of the six
54 nations residing on any reservation wholly or partly within the state;
55 (3) members of the United States armed forces in active service,
56 stationed in this state, regardless of the place of residence at the
S. 6292 72 A. 9292
1 time of entry into the service; and (4) persons privileged under subdi-
2 vision 5 of section 11-0707 of this article to take wildlife, other than
3 deer and bear, as if they held hunting licenses.
4 d. Only persons who possess a [resident] small and big game license,
5 junior small and big game license or the big game license portion of the
6 combination free hunting-big game hunting-fishing license, or the
7 [combined resident hunting, fishing and big game] sportsman or super-
8 sportsman license are eligible for a bowhunting stamp or a muzzle-load-
9 ing stamp.
10 e. A person under the age of twelve years is ineligible for a junior
11 [hunting] small game license.
12 § 20. Paragraph a of subdivision 5 of section 11-0703 of the environ-
13 mental conservation law, as amended by chapter 237 of the laws of 1993,
14 is amended to read as follows:
15 a. One-day[, three-day] and [five-day] seven-day fishing licenses
16 expire on the date stated on them.
17 § 21. Paragraphs a and b of subdivision 6 of section 11-0703 of the
18 environmental conservation law, as added by chapter 57 of the laws of
19 1993 and subparagraph 4 of paragraph a as renumbered by chapter 470 of
20 the laws of 1994, are amended to read as follows:
21 a. Except as provided in section 11-0707 and section 11-0709 of this
22 article, no person shall (1) hunt wildlife, other than deer or bear, or
23 take fish with a gun, unless such person holds and is entitled to exer-
24 cise the privileges of a hunting, junior small game, junior small and
25 big game, small and big game, combination free hunting-big game hunt-
26 ing-fishing license, a [combined resident hunting, fishing and big game]
27 sportsman or super-sportsman license or a combined non-resident hunting,
28 fishing, big game, bowhunting and muzzle-loading license; (2) hunt
29 antlerless deer in a special open season therefor pursuant to subdivi-
30 sion 6 of section 11-0903 of this article unless such person holds and
31 is entitled to exercise the privileges of and has on his or her person
32 while so hunting both a small and big game, junior small and big game
33 license, or junior archery license or bowhunting, muzzle-loading, combi-
34 nation free hunting-big game hunting-fishing license, or a [combined
35 resident hunting, fishing and big game] sportsman or super-sportsman
36 license, or combined non-resident hunting, fishing, big game, bowhunting
37 and muzzle-loading license and a special antlerless deer license; (3)
38 take fish or frogs in the manner described in subdivision 4 of section
39 11-0701 of this article unless such person is entitled to exercise the
40 privileges of a fishing license; (4) trap wildlife unless such person
41 holds a trapping license.
42 b. Except as provided in section 11-0707 and section 11-0709 of this
43 article, no resident shall (1) hunt wild deer or bear unless such person
44 holds and is entitled to exercise the privileges of a small and big
45 game, junior archery, junior small and big game, bowhunting, muzzle-
46 loading or combination free hunting-big game hunting-fishing license, or
47 a [combined resident hunting, fishing and big game] sportsman or super-
48 sportsman license and meets the requirements of subdivisions 2 and 3 of
49 section 11-0701 or subdivision 2 or 4 of section 11-0715 of this
50 article; (2) hunt wild deer or bear with a longbow in a special longbow
51 season unless such person holds and is entitled to exercise the privi-
52 leges of a small and big game license or junior small and big game
53 license or combination free hunting-big game hunting-fishing license, or
54 a [combined resident hunting, fishing and big game] sportsman and
55 super-sportsman license with a bowhunting stamp affixed or junior arch-
56 ery license and meets the requirements of subdivisions 2 and 3 of
S. 6292 73 A. 9292
1 section 11-0701 or subdivision 2 or 4 of section 11-0715 of this
2 article; or (3) hunt wild deer or bear with a muzzle-loading firearm in
3 a special muzzle-loading firearm season unless such person holds a small
4 and big game, or combination free hunting-big game hunting-fishing
5 license or a [combined resident hunting, fishing and big game] sportsman
6 or super-sportsman license with a muzzle-loading stamp affixed or a
7 junior small and big game license and meets the requirements of subdivi-
8 sion 2 of section 11-0701 of this article.
9 § 22. Paragraphs a, b and d of subdivision 2 of section 11-0705 of the
10 environmental conservation law, paragraphs a and b as amended by chapter
11 57 of the laws of 1993 and paragraph d as amended by chapter 209 of the
12 laws of 1980, are amended to read as follows:
13 a. Holders of a hunting, junior [hunting] small game, small and big
14 game, junior small and big game, combined non-resident hunting, fishing,
15 big game, bowhunting and muzzle-loading, combination free hunting-big
16 game hunting-fishing license or [combined resident hunting, fishing and
17 big game] sportsman or super-sportsman license, while exercising the
18 privileges of a hunting or small and big game license, shall have the
19 [hunting license] back tag issued with their license attached to and
20 displayed on the back of the outer garment between the shoulders in such
21 manner that all figures are plainly visible at all times.
22 b. Holders of a big game, small and big game, junior small and big
23 game, combination free hunting-big game hunting-fishing, [combined resi-
24 dent hunting, fishing and big game] sportsman and super-sportsman,
25 combined non-resident hunting, fishing, big game, bowhunting and
26 muzzle-loading, non-resident bowhunting or muzzle-loading or junior
27 archery license, while hunting wild deer or bear, shall have the [big
28 game, combination free hunting-big game hunting-fishing or junior arch-
29 ery] license tag issued with their [big game, combination free hunting-
30 big game hunting-fishing, combined resident hunting, fishing and big
31 game, combined non-resident hunting, fishing, big game, bowhunting and
32 muzzle-loading, non-resident bowhunting or muzzle-loading or junior
33 archery] license so attached and displayed.
34 d. Notwithstanding the provisions of paragraphs a, b and c of this
35 subdivision, a [hunting] license holder shall not be required to display
36 such license tag in the Northern Zone or the Catskill Park.
37 § 23. Subdivision 2 of section 11-0709 of the environmental conserva-
38 tion law is amended to read as follows:
39 2. Whenever taking of destructive or menacing wildlife is authorized
40 in section 11-0523 of this article, such taking is exempt from the
41 requirement of a hunting, small and big game, big game or trapping
42 license, unless the provision authorizing such taking specifies that
43 such license is required.
44 § 24. Section 11-0711 of the environmental conservation law is
45 REPEALED.
46 § 25. Paragraph a of subdivision 1 of section 11-0713 of the environ-
47 mental conservation law, the opening paragraph as amended by chapter 309
48 of the laws of 1996 and subparagraphs 1 and 4 as amended by chapter 911
49 of the laws of 1990, is amended to read as follows:
50 a. Hunting, junior small game, small and big game, junior small and
51 big game, fishing, combination free hunting-big game hunting-fishing,
52 [combined resident hunting, fishing and big game] sportsman and super-
53 sportsman, one-day[, three-day and five-day] and seven-day fishing, big
54 game, junior archery[, junior hunting] and trapping licenses, bowhunting
55 stamps, muzzle-loading stamps, turkey permits, combined non-resident
56 hunting, fishing, big game, bowhunting and muzzle-loading licenses,
S. 6292 74 A. 9292
1 non-resident hunting, bowhunting or muzzle-loading licenses, non-resi-
2 dent bear tags and license tags provided for in paragraph c of subdivi-
3 sion four of this section shall be issued by:
4 (1) environmental conservation officers and regional and assistant
5 regional environmental conservation officers,
6 (2) clerks of a county, town or city, except a city having a popu-
7 lation of one million or more, [and]
8 (3) clerks of a village having more than one thousand inhabitants
9 according to the last preceding federal census, or of a village in a
10 county of less than five hundred thousand inhabitants, adjoining a city
11 of over one million inhabitants, both according to such census[.], and
12 (4) License issuing officers as may be appointed by the commissioner.
13 Applicants for designation as license issuing officers shall be over the
14 age of eighteen years [who have been residents of the state for more
15 than six months immediately preceding the date of application,] and
16 shall meet such other requirements of eligibility, including posting
17 bond, as the department may by regulation specify. Such issuing officers
18 shall be entitled to receive and keep the same fees for issuing licenses
19 and stamps that are specified in section 11-0715 of this article for
20 issuing clerks, and shall file reports and remit license fees to the
21 appropriate regional environmental conservation officer or the depart-
22 ment as required by subdivision [one] 1 of section 11-0717 of this
23 [chapter] article for environmental conservation officers.
24 § 26. Subdivisions 2, 3 and 4 of section 11-0713 of the environmental
25 conservation law are REPEALED.
26 § 27. Subdivision 5 of section 11-0713 of the environmental conserva-
27 tion law, as amended by chapter 450 of the laws of 1991, is renumbered
28 subdivision 2 and amended to read as follows:
29 2. The issuing officer shall not issue a junior archery or a junior
30 small and big game license to a person between the ages of fourteen and
31 sixteen or a junior [hunting] small game license to a person between the
32 ages of twelve and [sixteen, years] thirteen unless at the time of issu-
33 ance applicant is accompanied by his parent or legal guardian who shall
34 consent to the issuance of the license and shall so signify by signing
35 his name in ink across the face of it. At no time shall [hunting] such
36 licenses be issued by mail to persons between the ages of twelve and
37 sixteen years.
38 § 28. Subdivision 6 of section 11-0713 of the environmental conserva-
39 tion law is renumbered subdivision 3 and paragraphs a, c and d, as
40 amended by chapter 57 of the laws of 1993, are amended to read as
41 follows:
42 a. Subject to the provisions of paragraphs b and c of this subdivi-
43 sion, the issuing officer shall not issue a hunting, junior small game,
44 small and big game, junior small and big game, combination free hunt-
45 ing-big game hunting-fishing, [combined resident hunting, fishing and
46 big game, big game] sportsman and super-sportsman, [junior hunting,]
47 junior archery, combined non-resident hunting, fishing, big game,
48 bowhunting and muzzle-loading, non-resident hunting, non-resident
49 bowhunting, non-resident muzzle-loading or trapping license or bowhunt-
50 ing stamp or muzzle-loading stamp to any person unless the applicant
51 presents:
52 (1) a hunting, small and big game, junior small and big game, junior
53 small game, five-day hunting, combined hunting and fishing, combination
54 free hunting-big game hunting-fishing, [combined resident hunting, fish-
55 ing and big game] sportsman and super-sportsman, combined small game and
56 big game, big game, junior archery, junior hunting, combined non-resi-
S. 6292 75 A. 9292
1 dent hunting, fishing, big game, bowhunting and muzzle-loading, non-re-
2 sident bowhunting, non-resident muzzle-loading or trapping license
3 issued to him previously; or
4 (2) an affidavit from a license issuing officer stating that applicant
5 previously has been issued a hunting, junior small game, small and big
6 game, junior small and big game, or five-day hunting, combined hunting
7 and fishing, combination free hunting-big game hunting-fishing,
8 [combined resident hunting, fishing and big game] sportsman and super-
9 sportsman, combined small game and big game, big game, trapping, junior
10 hunting, combined non-resident hunting, fishing, big game, bowhunting
11 and muzzle-loading, non-resident bowhunting, non-resident muzzle-loading
12 or junior archery license; or
13 (3) a certificate of qualification in responsible hunting, responsible
14 bowhunting and responsible trapping practices, including safety, ethics
15 and landowner-hunter relations, issued or honored by the department,
16 pursuant to this subdivision.
17 c. The issuing officer shall not issue a bowhunting stamp or muzzle-
18 loading stamp to any resident unless the applicant presents a small and
19 big game, combination free hunting-big game hunting-fishing, or
20 [combined resident hunting, fishing and big game] sportsman and super-
21 sportsman license issued to that person for the corresponding license
22 year.
23 d. Certifications of qualification in responsible hunting, responsible
24 bowhunting and responsible trapping practices may be made by duly quali-
25 fied and designated persons, whose fitness to give instructions in said
26 practices has been determined by an agent of the department. The depart-
27 ment may designate any person it deems qualified to act as its agent in
28 the giving of instruction and the making of certification. No charge
29 shall be made for any certificate or instruction given to a person to
30 qualify him or her to obtain a [hunting, combined resident hunting,
31 fishing and big game, big game, combined non-resident, hunting, fishing,
32 big game, bowhunting, muzzle-loading, non-resident bowhunting or
33 muzzle-loading, junior hunting, junior archery or trapping] license or
34 [bowhunting] stamp other than for certain instruction and materials
35 accredited by the department to provide preparation for final instruc-
36 tion and testing by agents of the department. The department shall make
37 available to the public courses without charge which do not require
38 additional preparation at the expense of students, and may also offer
39 optional courses which require preparatory instruction which may be at
40 the expense of the student. The department may make rules and regu-
41 lations which in its opinion are calculated to effectuate better the
42 purpose of this subdivision.
43 § 29. Paragraph e of subdivision 3 of section 11-0713 of the environ-
44 mental conservation law, such subdivision as renumbered by section twen-
45 ty-eight of this act, is REPEALED.
46 § 30. Subdivision 7 of section 11-0713 of the environmental conserva-
47 tion law, as amended by chapter 450 of the laws of 1991 and paragraph a
48 as amended by chapter 470 of the laws of 1994, is renumbered subdivision
49 4 and amended to read as follows:
50 4. a. A person who has lost or accidentally destroyed a hunting,
51 junior small game, small and big game, junior small and big game, fish-
52 ing, combination free hunting-big game hunting-fishing, [combined resi-
53 dent hunting, fishing and big game] sportsman, super-sportsman, [big
54 game, junior archery, junior hunting] non-resident hunting, combined
55 non-resident hunting, fishing, big game, bowhunting and muzzle-loading,
56 non-resident bowhunting, non-resident muzzle-loading or trapping
S. 6292 76 A. 9292
1 license, bowhunting stamp or muzzle-loading stamp may apply to the offi-
2 cer who issued it for a certificate in lieu thereof. Such officer shall
3 issue a certificate stating the name and address of the applicant, the
4 type of license issued and the fee, if any, paid for it. Applications
5 and certificates furnished by the department shall be used for this
6 purpose.
7 b. A person who has lost or accidentally destroyed a button issued
8 with such a license or a hunting, [junior hunting,] junior archery,
9 junior small game, small and big game, junior small and big game, combi-
10 nation free hunting-big game hunting, combined hunting and big game, or
11 big game license tag may apply to the department for a duplicate and the
12 department shall issue a duplicate button or tag when satisfied that the
13 application is made in good faith. A duplicate combination free hunt-
14 ing-big game hunting tag shall be issued free of charge.
15 § 31. Subdivision 8 of section 11-0713 of the environmental conserva-
16 tion law is renumbered subdivision 5.
17 § 32. Subdivision 2 of section 11-0715 of the environmental conserva-
18 tion law, as amended by chapter 450 of the laws of 1991, is amended to
19 read as follows:
20 2. A resident in the state for thirty days immediately prior to the
21 date of application who has attained the age of seventy is entitled to
22 receive a fishing license, a [hunting] small and big game license, a bow
23 hunting stamp, a muzzle-loading stamp, a trapping license, [a special
24 second deer permit, a big game hunting license] and [combination hunt-
25 ing, big game and fishing] sportsman license [for the license year
26 beginning October first, nineteen hundred ninety-one, and annually ther-
27 eafter,] for a [four] five dollar license fee [and one dollar to the
28 issuing clerk]; a member of the Shinnecock tribe or the Poospatuck tribe
29 or a member of the six nations, residing on any reservation wholly or
30 partly within the state, is entitled to receive free of charge a fishing
31 license, a [hunting] small and big game license, a muzzle-loading stamp,
32 [a big game license,] a trapping license, [a special second deer permit]
33 and a bow hunting stamp; and a resident who is blind is entitled to
34 receive a fishing license free of charge. For the purposes of this
35 subdivision a person is blind only if either: (a) his central visual
36 acuity does not exceed 20/200 in the better eye with correcting lenses,
37 or (b) his visual acuity is greater than 20/200 but is accompanied by a
38 limitation of the field of vision such that the widest diameter of the
39 visual field subtends an angle no greater than 20 degrees.
40 A person entitled to a free license as provided in this subdivision
41 shall be issued a combination free hunting-big game hunting-fishing
42 license renewable each year. Those free licensees not qualified to
43 receive a hunting license shall have stamped across the face thereof
44 "FISHING ONLY", and the issuing clerk shall destroy the accompanying
45 back tag for such license.
46 A resident in the state for a period of thirty days immediately prior
47 to the date of application who has attained the age of sixty-five is
48 entitled to receive a combined hunting, fishing and big game license at
49 the cost of [four] five dollars as a license fee [and one dollar to the
50 issuing clerk].
51 § 33. Subdivision 3 of section 11-0715 of the environmental conserva-
52 tion law is REPEALED and a new subdivision 3 is added to read as
53 follows:
54 3. Applicants for licenses or stamps shall pay to the issuing officer
55 fees, according to the license or stamp issued and the residence or
56 other qualification of the applicant, as follows:
S. 6292 77 A. 9292
1 a. In the case of persons who have been residents of the state for
2 more than thirty days immediately preceding the date of application or
3 who are enrolled in a full-time course at a college or university within
4 the state and who are in residence in the state for the school year,
5 Indians residing off reservations in the state and members of the United
6 States armed forces in active service stationed in this state regardless
7 of place of residence at the time of entry into service:
8 License Fee
9 (1) Super-sportsman $64.00
10 (2) Sportsman $34.00
11 (3) Small and big game $18.00
12 (4) Fishing $19.00
13 (5) Trapping $15.00
14 (6) Hunting $14.00
15 (7) Junior trapping $ 6.00
16 (8) Muzzle-loading stamp $15.00
17 (9) Bowhunting stamp $15.00
18 (10) Turkey permit $ 5.00
19 (11) Seven-day fishing $10.00
20 b. In the case of a non-resident and persons resident in the state for
21 less than thirty days, other than persons who are enrolled in a full-
22 time course at a college or university within the state and who are in
23 residence in the state for the school year and those members of the
24 United States armed forces as to whom fees are specified in paragraph a
25 of this subdivision:
26 License Fee
27 (1) Big game $110.00
28 (2) Hunting $ 55.00
29 (3) Fishing $ 40.00
30 (4) Seven-day fishing $ 25.00
31 (5) Trapping $255.00
32 (6) Super-sportsman $250.00
33 (7) Bowhunting $110.00
34 (8) Muzzle-loading $110.00
35 (9) Bear tag $ 30.00
36 (10) Turkey permit $ 30.00
37 c. In all cases:
38 (1) Certificates in lieu of lost license or stamp $ 5.00
39 (2) Duplicate for lost or destroyed button or tag $10.00
40 (3) Junior small game license $ 5.00
41 (4) Junior small and big game $ 9.00
42 (5) Junior archery $ 9.00
43 (6) One-day fishing license $15.00
44 § 34. Subdivision 4 of section 11-0715 of the environmental conserva-
45 tion law, as amended by chapter 450 of the laws of 1991, is amended to
46 read as follows:
47 4. A person resident in the state for at least thirty days immediately
48 prior to the date of application, who has been honorably discharged from
49 service in the armed forces of the United States and certified as having
50 a forty per cent or greater service-connected disability is entitled to
51 receive a combination hunting-big game hunting-fishing license, a bow
52 hunting stamp, a muzzle loading stamp and a trapping license renewable
53 each year for a [four] five dollar fee [and one dollar to the issuing
54 clerk].
55 § 35. Section 11-0715 of the environmental conservation law is amended
56 by adding a new subdivision 6 to read as follows:
S. 6292 78 A. 9292
1 6. a. License issuing officers may retain 1.1 percent of the gross
2 proceeds from the sale of the following:
3 (1) non-resident hunting license
4 (2) big game license
5 (3) non-resident trapping license
6 (4) bear tag
7 (5) non-resident bowhunting license
8 (6) non-resident muzzle-loading license
9 (7) non-resident super-sportsman license
10 (8) non-resident turkey permit.
11 b. License issuing officers may retain 5.5 percent of the gross
12 proceeds from sale of all other licenses, stamps, certificates and
13 permits, including any application fees associated with such licenses,
14 stamps, certificates and permits.
15 § 36. Section 11-0717 of the environmental conservation law is
16 REPEALED.
17 § 37. The opening paragraph of paragraph a of subdivision 2 of section
18 11-0719 of the environmental conservation law, as amended by chapter 119
19 of the laws of 1999, is amended to read as follows:
20 The department may revoke [the] any hunting, small and big game, big
21 game, junior archery, bowhunting, muzzle-loading, the small and big game
22 portion of the sportsman license, the small and big game, bowhunting or
23 muzzle-loading portion of the super-sportsman license, or trapping
24 license or stamp or the hunting and big game hunting portions of the
25 combination free hunting-big game hunting-fishing license, or any or all
26 of them, or any stamp or tag, and deny the privilege of obtaining such
27 license or stamp or such portions of [the combination free hunting-big
28 game hunting-fishing] such license and of hunting or of trapping
29 anywhere in the state, with or without a license,
30 § 38. Subdivision 3 of section 11-0719 of the environmental conserva-
31 tion law, as amended by chapter 158 of the laws of 1999, is amended to
32 read as follows:
33 3. A junior hunting license issued to a person who is between the ages
34 of twelve and sixteen years or junior archery, junior small game, or
35 junior small and big game license issued to a person who is between the
36 ages of [fourteen] twelve and sixteen years may be revoked by the
37 department upon proof satisfactory to the department that such person,
38 while under the age of sixteen, has engaged in hunting wildlife with a
39 gun or longbow, in circumstances in which a license is required, while
40 not accompanied by his parent, guardian or other adult as provided in
41 either subdivision 1 or subdivision 3 of section 11-0929 of this arti-
42 cle. If such license or privilege is revoked the department shall fix
43 the period of such revocation, which is not to exceed four years. The
44 department may require that such person successfully complete a depart-
45 ment sponsored course and obtain a certificate of qualification in
46 responsible hunting or responsible bowhunting practices before being
47 issued another hunting or bowhunting license.
48 § 39. Paragraph b of subdivision 7 of section 11-0903 of the environ-
49 mental conservation law, as amended by chapter 57 of the laws of 1993,
50 is amended to read as follows:
51 b. Deer may be taken only by holders of [big game or combined resident
52 hunting, fishing and big game or combination free hunting-big game hunt-
53 ing-fishing or combined non-resident hunting, fishing, big game,
54 bowhunting and muzzle-loading or non-resident bowhunting and non-resi-
55 dent muzzle-loading licenses] a license authorizing the taking of big
S. 6292 79 A. 9292
1 game who have also obtained a special permit provided by the department
2 and issued by the town clerk of each town where such season is fixed;
3 § 40. Subparagraph 1 of paragraph e of subdivision 9 of section
4 11-0903 of the environmental conservation law, as amended by chapter 911
5 of the laws of 1990, is amended to read as follows:
6 (1) a requirement that hunting deer during such special season shall
7 be only by holders of both a [big game] license authorizing the taking
8 of big game and a special permit for the area where hunting is permit-
9 ted,
10 § 41. Paragraph a of subdivision 1 of section 11-0907 of the environ-
11 mental conservation law, as amended by chapter 330 of the laws of 1994,
12 is amended to read as follows:
13 a. Wild deer without antlers or having antlers measuring less than
14 three inches in length shall not be taken unless it is taken (1) by long
15 bow in a special long bow season established in subdivision 3 of this
16 section, or (2) by muzzle-loading firearm in a special muzzle-loading
17 firearm season established in subdivision 8 of this section, or (3) by
18 long bow in Westchester and Suffolk Counties in a year in which a regu-
19 lar season for deer of either sex is established for such counties, or
20 (4) in a special open season for deer of either sex fixed by order
21 pursuant to subdivision 5 or 7 of section 11-0903 of this title, or (5)
22 pursuant to a special antlerless deer license in a special open season
23 for antlerless deer in a tract within a Wilderness Hunting Area fixed by
24 regulation pursuant to subdivision 6 of section 11-0903 of this title,
25 or (6) pursuant to a deer management permit by a person eligible to take
26 such deer pursuant thereto as provided in section 11-0913 of this title,
27 or (7) pursuant to a permit issued to an eligible non-ambulatory person,
28 pursuant to subdivision [two] 2 of section 11-0931 of this title, while
29 in possession of a valid small and big game, junior small and big game,
30 sportsman, super-sportsman or a big game license issued by the depart-
31 ment. Nothing in this subparagraph shall be construed to limit the power
32 of the department to designate by regulation an area or areas of the
33 state consisting of a county or part of a county where such season shall
34 apply and whether the number of such special permits shall be limited.
35 § 42. Paragraph c of subdivision 1 of section 11-0907 of the environ-
36 mental conservation law, as amended by chapter 600 of the laws of 1993,
37 is amended to read as follows:
38 c. The limit for wild deer is one deer per person in a license year
39 except that (1) a person entitled to exercise the privileges of a
40 special antlerless deer license may take an antlerless deer while hunt-
41 ing pursuant to such license in addition to the limit of one deer in a
42 license year otherwise applicable, and (2) a person who is a member of a
43 hunting group holding a deer management permit or permits issued pursu-
44 ant to section 11-0913 may take additional deer while hunting in accord-
45 ance with the conditions of the permit or permits, [and] (3) the holder
46 of a bowhunting stamp and a muzzle-loading stamp may take additional
47 deer in accordance with the conditions of those stamps, and (4) an
48 eligible non-ambulatory person, pursuant to subdivision [two] 2 of
49 section 11-0931 of this chapter may take a deer of either sex in any
50 deer management unit area where deer management permits have been issued
51 by the department, while in possession of a valid small and big game,
52 junior small and big game, sportsman, super-sportsman or big game
53 license and a special big game permit, issued by the department, for a
54 fee of five dollars. Nothing contained in this section shall be
55 construed to limit the power of the department to designate by regu-
56 lation an area or areas of the state consisting of a county or part of a
S. 6292 80 A. 9292
1 county where such season shall apply and whether the number of such
2 special permits shall be limited.
3 § 43. Paragraph c of subdivision 1 of section 11-0907 of the environ-
4 mental conservation law, as amended by chapter 911 of the laws of 1990
5 and subparagraph 2 as amended by chapter 119 of the laws of 1991, is
6 amended to read as follows:
7 c. The limit for wild deer and bear is one deer and one bear per
8 person in a license year except that (1) a person entitled to exercise
9 the privileges of a special antlerless deer license may take an antler-
10 less deer while hunting pursuant to such license in addition to the
11 limit of one deer in a license year otherwise applicable, and (2) a
12 person who is a member of a hunting group holding a deer management
13 permit or permits issued pursuant to section 11-0913 may take additional
14 deer while hunting in accordance with the conditions of the permit or
15 permits, [and] (3) the holder of a bowhunting stamp and a muzzle-loading
16 stamp may take additional deer in accordance with the conditions of
17 those stamps, and (4) an eligible non-ambulatory person, pursuant to
18 subdivision [two] 2 of section 11-0931 of this chapter may take a deer
19 of either sex in any deer management unit area where deer management
20 permits have been issued by the department, while in possession of a
21 valid small and big game, junior small and big game, sportsman, super-
22 sportsman or big game license and a special big game permit, issued by
23 the department, for a fee of five dollars. Nothing contained in this
24 section shall be construed to limit the power of the department to
25 designate by regulation an area or areas of the state consisting of a
26 county or part of a county where such season shall apply and whether the
27 number of such special permits shall be limited.
28 § 44. Paragraphs d and e of subdivision 1 of section 11-0907 of the
29 environmental conservation law are REPEALED and two new paragraphs d and
30 e are added to read as follows:
31 d. (1) A person who holds a super-sportsman license or a small and big
32 game or sportsman license to which a valid bowhunting stamp is affixed
33 or a non-resident bowhunting or combined non-resident hunting, fishing,
34 big game, bowhunting and muzzle-loading license and who has taken a deer
35 by longbow in a special archery season and who has not taken a deer
36 pursuant to the privileges of a license authorizing the taking of big
37 game in a regular open season may, in addition to the limit of one deer
38 in a license year otherwise applicable, take during the same license
39 year an additional deer in a special archery season following the close
40 of the regular open deer season.
41 (2) A person who holds a super-sportsman license or a small and big
42 game license or sportsman license to which a valid bowhunting stamp is
43 affixed or a non-resident bowhunting or combined non-resident hunting,
44 fishing, big game, bowhunting and muzzle-loading license and who has
45 taken a deer by longbow in the regular open season for deer in Westches-
46 ter or Suffolk counties may, in addition to the limit of one deer in a
47 license year otherwise applicable, take during the same license year an
48 additional deer during such Westchester or Suffolk county regular open
49 deer season.
50 e. A person who holds a super-sportsman license or a small and big
51 game, combination free hunting-big game hunting-fishing or sportsman
52 license to which a valid muzzle-loading stamp is affixed, or a non-resi-
53 dent muzzle-loading or combined non-resident hunting, fishing, big game,
54 bowhunting and muzzle-loading license and who has taken a deer by
55 muzzle-loading firearm in a muzzle-loading season and who has not taken
56 a deer pursuant to the privileges of a license authorizing the taking of
S. 6292 81 A. 9292
1 big game in a regular open season may, in addition to the limit of one
2 deer in a license year otherwise applicable, take during the same year
3 an additional deer in a special muzzle-loading season following the
4 close of the regular deer season.
5 § 45. Paragraph a of subdivision 3 of section 11-0907 of the environ-
6 mental conservation law, as amended by chapter 600 of the laws of 1993,
7 is amended to read as follows:
8 a. In every area identified in column one of the table set forth in
9 subdivision 2 of this section, except Westchester and Suffolk Counties
10 in which a regular open season for taking deer by firearms is estab-
11 lished and effective, a special open season is established for taking
12 deer of either sex, by the use of a long bow only by holders of a [big
13 game, combined small game and big game, combined hunting, fishing and
14 big game] small and big game, sportsman, super-sportsman or combination
15 free hunting-big game hunting-fishing license to which a valid bowhunt-
16 ing stamp is affixed or a junior archery license or to holders of a
17 non-resident bowhunting license.
18 § 46. Paragraph a of subdivision 3 of section 11-0907 of the environ-
19 mental conservation law, as amended by chapter 694 of the laws of 1980,
20 is amended to read as follows:
21 a. In every area identified in column one of the table set forth in
22 subdivision 2 of this section, except Westchester and Suffolk Counties
23 in which a regular open season for taking deer by firearms is estab-
24 lished and effective, a special open season is established for taking
25 deer of either sex, and bear, by the use of a long bow only by holders
26 of a [big game, combined small game and big game, combined hunting,
27 fishing and big game] small and big game, sportsman, super-sportsman or
28 combination free hunting-big game hunting-fishing license to which a
29 valid bowhunting stamp is affixed or a junior archery license or to
30 holders of a non-resident bowhunting license.
31 § 47. Paragraph a of subdivision 5 of section 11-0907 of the environ-
32 mental conservation law, as amended by chapter 768 of the laws of 1978,
33 is amended to read as follows:
34 a. In Monroe County, the area bounded and described as follows: On
35 the west by Route 261 (Manitou Road) beginning at Manitou Beach on Lake
36 Ontario in the town of Greece and continuing southerly along such road
37 to its intersection with the Barge Canal, thence easterly along such
38 canal to East Avenue in the village of Pittsford, thence northeasterly
39 along East Avenue to Allen Creek in the town of Brighton, thence north-
40 erly along Allen Creek to Irondequoit Creek, thence northerly along
41 Irondequoit Creek to Irondequoit Bay, thence northerly along the easter-
42 ly shore of Irondequoit Bay to Lake Ontario; except that deer of either
43 sex may be taken by the use of a long bow by holders of a small and big
44 game or sportsman or super-sportsman license to which a valid bow hunt-
45 ing stamp is affixed or a junior archery license during the regular and
46 special deer hunting seasons provided for in this title and provided
47 further that this exception permitting the taking of deer by a long bow
48 shall not apply within an area in the town of Greece bounded and
49 described as follows: On the west by Long Pond Road beginning at Latta
50 Road and continuing southerly along such road to its intersection with
51 Maiden Lane, thence easterly along Maiden Lane to its intersection with
52 Mt. Read Blvd., thence northerly along Mt. Read Blvd. to its inter-
53 section with Latta Road, thence westerly along Latta Road to its inter-
54 section with Long Pond Road at the point of beginning.
S. 6292 82 A. 9292
1 § 48. Paragraph a of subdivision 7 of section 11-0907 of the environ-
2 mental conservation law, as amended by chapter 272 of the laws of 1983,
3 is amended to read as follows:
4 a. The area described in this subdivision is closed to the taking of
5 deer and bear by firearms, but shall be open for taking deer by the use
6 of a long bow only by holders of a small and big game, [combined small
7 game and big game, combined hunting, fishing and big game] sportsman,
8 super-sportsman or combination free hunting-big game hunting-fishing
9 license to which a valid bowhunting stamp is affixed or a junior archery
10 license, as follows: during the special deer season stated in subdivi-
11 sion three and during the regular season stated in subdivision [two] 2
12 of this section, deer of either sex may be taken.
13 § 49. Paragraph a of subdivision 8 of section 11-0907 of the environ-
14 mental conservation law, as amended by chapter 241 of the laws of 1997,
15 is amended to read as follows:
16 a. In every area identified in column one of the table set forth in
17 subdivision 2 of this section, except those areas restricted to special
18 seasons for taking deer by longbow only, special open seasons may be
19 established by regulation for taking deer and/or bear, by the use of
20 muzzle-loading firearms, of not less than .44 caliber shooting a single
21 projectile, by the holders of a small and big game, [combined small game
22 and big game, combined hunting, fishing and big game] sportsman or
23 super-sportsman or combination free hunting-big game hunting-fishing
24 license to which a valid muzzle-loading stamp is affixed or a junior
25 small and big game license.
26 § 50. Paragraphs a and b of subdivision 1 of section 11-0911 of the
27 environmental conservation law are REPEALED and two new paragraphs a and
28 b are added to read as follows:
29 a. When a wild deer is taken the taker shall immediately fill in,
30 using ink, ball point pen or indelible pencil, the deer tags issued to
31 the taker as provided in regulations of the department. The taker shall
32 immediately cut out or mark the month and date of kill on the tag and
33 shall attach it to the deer, except that it need not be attached to the
34 deer while it is being dragged or physically carried by the taker to a
35 camp or point where other transportation is available. The taker shall
36 report details of the location and date of harvest and data on the deer
37 as required by regulation.
38 b. When a bear is taken, the taker shall fill out the bear report form
39 issued to the taker as provided in regulations of the department. The
40 taker shall send the report form to the department within five days
41 after the close of the open season in the county where the bear was
42 taken.
43 § 51. Subdivision 3 of section 11-0911 of the environmental conserva-
44 tion law, as amended by chapter 600 of the laws of 1993, is amended to
45 read as follows:
46 3. If a taker is a member of a party of deer hunters, after attaching
47 the deer tag [marked "Original"] issued to the taker as provided in
48 regulations of the department to his deer, he may, for the duration of
49 the joint hunt only, continue to assist the other members of the party
50 to take deer if he carries no firearm or long bow and has his license on
51 his person, or he may hunt bear as permitted by the regulations estab-
52 lished pursuant to subdivision 8 of section 11-0903.
53 § 52. Subdivisions 3, 4 and 7 of section 11-0913 of the environmental
54 conservation law, as amended by chapter 57 of the laws of 1993, are
55 amended to read as follows:
S. 6292 83 A. 9292
1 3. Each member of a group issued a permit pursuant to this section
2 shall possess a small and big game, a junior small and big game, a big
3 game, [combined resident hunting, fishing and big game] sportsman,
4 super-sportsman, combination free hunting-big game hunting-fishing
5 license or combined non-resident hunting, fishing, big game, bowhunting
6 and muzzle-loading license before the permit may be validated.
7 4. During a license year, no person shall use more than one small and
8 big game, junior small and big game, big game, [combined resident hunt-
9 ing, fishing and big game] sportsman, super-sportsman, combination free
10 hunting-big game hunting-fishing license or [combined non-resident hunt-
11 ing, fishing, big game, bowhunting and muzzle-loading license] in making
12 application for a deer management permit.
13 7. The department shall charge and receive a fee of ten dollars for
14 the application and the processing of such permit or permits. Appli-
15 cants who are successful in the computerized selection shall receive the
16 permit or permits free of any additional charge. The application fee
17 shall be non-refundable. The department may waive the application fee
18 for holders of a [combined resident hunting, fishing and big game]
19 junior small and big game, sportsman, or super-sportsman license [or a
20 combined non-resident hunting, fishing, big game, bowhunting and
21 muzzle-loading license].
22 § 53. Section 11-0929 of the environmental conservation law, as
23 amended by chapter 694 of the laws of 1980 and subdivisions 1 and 3 as
24 amended by chapter 450 of the laws of 1991, is amended to read as
25 follows:
26 § 11-0929. Hunting by minors.
27 1. A licensee between the ages of twelve and fourteen years shall not
28 hunt wildlife with a gun or a longbow unless he or she is accompanied by
29 his or her parent or legal guardian or relative over the age of twenty-
30 one designated in writing by his or her parent who holds a small and big
31 game, hunting, [or combined hunting, fishing and big game] sportsman,
32 super-sportsman or combination free hunting-big game hunting-fishing
33 license; a licensee between the ages of fourteen and sixteen shall not
34 hunt wildlife with a gun or longbow unless he or she is accompanied by
35 his or her parent holding such license, or a person over eighteen years
36 of age, designated in writing by his or her parent or legal guardian,
37 holding such license.
38 2. A licensee under the age of eighteen years who has not previously
39 had a junior small and big game, small and big game, big game, [combined
40 small game and big game or combined hunting, fishing and big game
41 license] sportsman or super-sportsman issued to him and engaged in hunt-
42 ing pursuant to it shall not hunt deer or bear unless he or she is
43 accompanied by his parent or legal guardian, or by a person over eigh-
44 teen years of age who has had at least one year's experience in hunting
45 deer or bear, and such accompanying parent, guardian or person holds a
46 small and big game, big game, [combined small game and big game,
47 combined hunting, fishing and big game] or sportsman or super-sportsman
48 or combination free hunting-big game hunting-fishing license.
49 3. A junior archery licensee, between the ages of fourteen and sixteen
50 years, shall not hunt deer or bear unless he is accompanied by his
51 parent or legal guardian, or by a person over eighteen years of age who
52 has had at least one year's experience in hunting deer or bear by long-
53 bow, and such accompanying parent, guardian or person holds a small and
54 big game, big game, [combined hunting, fishing and big game] sportsman
55 or super-sportsman or combination free hunting-big game hunting-fishing
56 license with a bowhunting stamp affixed.
S. 6292 84 A. 9292
1 § 54. Section 83 of the state finance law is amended by adding a new
2 subdivision (h) to read as follows:
3 (h) All moneys, revenues and interest thereon received as a result of
4 the application of subdivision eighteen of section 11-0305 of the envi-
5 ronmental conservation law authorizing the issuance and sale of volun-
6 tary habitat stamps, other than the amount retained by the issuing agent
7 or officer, shall be deposited in a special account within the conserva-
8 tion fund to be known as the habitat account. All of such moneys, reven-
9 ues and interest shall be available to the department of environmental
10 conservation, pursuant to appropriation, exclusively for fish and wild-
11 life habitat management and the improvement and development of public
12 access for hunting, fishing, trapping and other fish and wildlife-relat-
13 ed recreation and study.
14 § 55. This act shall take effect on the first day of October next
15 succeeding the date on which it shall have become a law; provided that
16 the amendments to paragraph c of subdivision 1 of section 11-0907 of the
17 environmental conservation law, made by section forty-two of this act,
18 shall not affect the expiration and reversion of such paragraph, pursu-
19 ant to chapter 600 of the laws of 1993 as amended, when upon such date
20 the provisions of section forty-three of this act shall take effect;
21 provided, further, that the amendments to paragraph a of subdivision 3
22 of section 11-0907 of the environmental conservation law, made by
23 section forty-five of this act, shall not affect the expiration and
24 reversion of such paragraph, pursuant to chapter 600 of the laws of 1993
25 as amended, when upon such date the provisions of section forty-six of
26 this act shall take effect; provided, further that subdivision 3 of
27 section 11-0911 of the environmental conservation law made by section
28 fifty-one of this act shall not affect the expiration and reversion of
29 such subdivision and shall be deemed to expire therewith.
30 PART G
31 Section 1. The real property tax law is amended by adding a new
32 section 480-b to read as follows:
33 § 480-b. State reimbursement for forest tax exemptions. 1. A county,
34 town or school district containing eligible private forest lands shall
35 be eligible for state reimbursement as provided by this section. For
36 purposes of this section, "eligible private forest lands" means private
37 forest tracts receiving an exemption pursuant to section four hundred
38 eighty or four hundred eighty-a of this title, excluding any tract which
39 is or had been a certified tract on which penalties are imposed pursuant
40 to section four hundred eighty or four hundred eighty-a of this title.
41 2. The county treasurer of any county containing eligible private
42 forest lands shall submit to the state board a list of any changes to
43 the assessed value, taxable status or acreage of all such lands made
44 subsequent to the filing of those assessment rolls upon which county
45 taxes are extended, and the county tax rate and town tax rate extended
46 against any parcel receiving one of those exemptions.
47 3. The business manager of any school district containing eligible
48 private forest lands shall submit to the state board a list of any
49 changes to the assessed value, taxable status or acreage of all such
50 lands made subsequent to the filing of those assessment rolls upon which
51 school taxes are extended, and the school tax rate extended against any
52 parcel receiving one of those exemptions.
S. 6292 85 A. 9292
1 4. The state board shall compute the amount of state assistance paya-
2 ble to or for the benefit of a county, town or school district on
3 account of eligible private forest lands.
4 5. (a) The amount of state assistance paid to a county, town or school
5 district pursuant to this section shall equal the taxes which would have
6 been levied for county, town or school district purposes upon the
7 assessed valuation partially exempt from taxation on the latest final
8 assessment roll of the eligible private forest lands, minus one percent
9 of the total real property tax levy for county, town or school district
10 purposes for the current year, provided that the amount payable to any
11 county, town or school district pursuant to this section shall not
12 exceed the maximum payment prescribed by paragraph (b) of this subdivi-
13 sion.
14 (b) The maximum payment to a county, town or school district pursuant
15 to this section shall be determined as follows:
16 (i) Multiply the total acreage of the eligible private forest lands in
17 the county, town or school district on the latest final assessment roll
18 by the average forest land value per acre, as determined by the state
19 board based on sales of forest parcels of at least fifty acres through-
20 out the region;
21 (ii) Multiply the result by the full value tax rate for county, town
22 or school district purposes for the current year; and
23 (iii) Subtract from the product one percent of the total real property
24 tax levy for county, town or school district purposes for the current
25 year.
26 6. The state board shall certify to the state comptroller the amount
27 of state assistance payable pursuant to this section, and shall mail a
28 copy of such certification to the county treasurer of each county and
29 business manager of each school district containing eligible private
30 forest tracts. Such state assistance shall be paid on audit and warrant
31 of the comptroller out of monies appropriated by the legislature for
32 state assistance to counties, towns and school districts containing
33 eligible private forest tracts.
34 7. If it should appear to the state board that an error was made in
35 the calculation of state assistance pursuant to subdivision five of this
36 section and as a result of that error an incorrect amount of state
37 assistance was paid to a county, town or school district, the state
38 board shall determine the difference between the assistance paid and the
39 assistance that should have been paid and shall adjust the next state
40 assistance certified for such county, town or school district by that
41 difference.
42 § 2. This act shall take effect immediately, provided that state
43 assistance payments pursuant to section 480-b of the real property tax
44 law, as added by section one of this act, shall be limited to the
45 amounts appropriated by the legislature for this purpose, and shall be
46 submitted based upon the assessment rolls with final completion dates on
47 or after July 1, 2000.
48 PART H
49 Section 1. Paragraph a of subdivision 2 of section 92-s of the state
50 finance law, as added by chapter 610 of the laws of 1993, is amended to
51 read as follows:
52 a. The comptroller shall establish the following separate and distinct
53 accounts within the environmental protection fund:
54 (i) solid waste account;
S. 6292 86 A. 9292
1 (ii) parks, recreation and historic preservation account;
2 (iii) open space account; [and]
3 (iv) Hudson River estuary trust account; and
4 (v) environmental protection transfer account.
5 § 2. Paragraphs (a), (b), (c) and (d) of subdivision 6 of section 92-s
6 of the state finance law, as amended by chapter 432 of the laws of 1997,
7 are amended to read as follows:
8 (a) All moneys heretofore and hereafter deposited in the environmental
9 protection transfer account shall be transferred by the comptroller to
10 the solid waste account, the parks, recreation and historic preservation
11 account [or], the open space account or the Hudson River estuary trust
12 account upon the request of the director of the budget.
13 (b) Moneys from the solid waste account shall be available, pursuant
14 to appropriation and upon certificate of approval of availability by the
15 director of the budget, for any non-hazardous municipal landfill closure
16 project; municipal waste reduction or recycling project, as defined in
17 article fifty-four of the environmental conservation law; for the
18 purposes of section two hundred sixty-one and section two hundred
19 sixty-four of the economic development law; any project for the develop-
20 ment, updating or revision of local solid waste management plans pursu-
21 ant to sections 27-0107 and 27-0109 of the environmental conservation
22 law; [and] for the development of the pesticide sales and use data base
23 in conjunction with Cornell University pursuant to title twelve of arti-
24 cle thirty-three of the environmental conservation law; and for any
25 project to assess and recover any natural resource damages to the Hudson
26 River.
27 (c) Moneys from the parks, recreation and historic preservation
28 account shall be available, pursuant to appropriation, for any municipal
29 park project, historic preservation project, urban cultural park
30 project, waterfront revitalization program, coastal rehabilitation
31 project, state parks and lands infrastructure and stewardship project,
32 Hudson River Park project consistent with chapter five hundred ninety-
33 two of the laws of nineteen hundred ninety-eight.
34 (d) Moneys from the open space account shall be available, pursuant to
35 appropriation, for any open space land conservation project, bio-diver-
36 sity stewardship and research pursuant to chapter five hundred fifty-
37 four of the laws of nineteen hundred ninety-three, for the purposes of
38 agricultural and farmland protection activities as authorized by article
39 twenty-five-AAA of the agriculture and markets law, non-point source
40 abatement and control projects pursuant to section 17-1409 of the envi-
41 ronmental conservation law and section eleven-b of the soil and water
42 conservation districts law, soil and water conservation district activ-
43 ities authorized for reimbursement pursuant to section eleven-a of the
44 soil and water conservation districts law, for Long Island Central Pine
45 Barrens area planning or Long Island south shore estuary reserve plan-
46 ning pursuant to title thirteen of article fifty-four of the environ-
47 mental conservation law[. Moneys from the open space account shall also
48 be available until March thirty-first, nineteen hundred ninety-nine,
49 pursuant to appropriation], for the state reimbursement for forest tax
50 exemptions pursuant to section four hundred eighty-b of the real proper-
51 ty tax law, for operation and management of the Albany Pine Bush
52 preserve commission pursuant to subdivision two of section 54-0303 of
53 the environmental conservation law, and for New York state's membership
54 in the following interstate pollution control commissions set forth in
55 article twenty-one of the environmental conservation law: the Delaware
56 River basin commission, the Susquehanna River basin commission, the Ohio
S. 6292 87 A. 9292
1 River valley water sanitation commission, the Great Lakes basin commis-
2 sion, the interstate sanitation commission and the New England inter-
3 state water pollution control commission.
4 § 3. Subdivision 6 of section 92-s of the state finance law is amended
5 by adding a new paragraph (f) to read as follows:
6 (f) Moneys from the Hudson River estuary trust account shall be avail-
7 able, pursuant to appropriation, for projects to implement the Hudson
8 River estuary management plan prepared pursuant to section 11-0306 of
9 the environmental conservation law.
10 § 4. Article 54 of the environmental conservation law is amended by
11 adding a new title 14 to read as follows:
12 TITLE 14
13 STATE PARKS AND LANDS INFRASTRUCTURE AND STEWARDSHIP PROJECTS
14 Section 54-1401. Definitions.
15 54-1402. State parks and lands infrastructure and stewardship
16 projects.
17 § 54-1401. Definitions.
18 As used in this title:
19 1. "Stewardship" shall mean the care of the lands, facilities and
20 natural and cultural resources under the jurisdiction of the department
21 and the office of parks, recreation and historic preservation on behalf
22 of the public, and the provision of public access thereto.
23 2. "State parks and lands infrastructure" shall mean state park
24 resources, recreational facilities and historic sites and any other
25 property, real or personal, under the jurisdiction of the department and
26 the office of parks, recreation and historic preservation, together with
27 machinery, equipment, furnishings and fixtures relating thereto or used
28 in connection therewith.
29 3. "State parks and lands infrastructure and stewardship projects"
30 shall mean all costs incurred or to be incurred by or on behalf of the
31 department and the office of parks, recreation and historic preservation
32 for the purpose of preserving, improving or rehabilitating state parks
33 and lands infrastructure. Such projects may include, but are not limit-
34 ed to: natural resource and habitat restoration and protection such as
35 the protection and management of biological, land, geological, archeo-
36 logical and other natural resources, survey and inventory, scientific
37 research, planning and analysis, and development of unit management
38 plans; projects to improve public access including access opportunities
39 for people with disabilities by developing, restoring, reconstructing,
40 rehabilitating and maintaining physical facilities, including but not
41 limited to buildings, roads, bridges and waste disposal systems;
42 projects to develop, maintain, or improve marine resource facilities,
43 water access facilities, recreational trails, campgrounds, day use
44 areas, fish hatcheries, public beach facilities, visitor centers, inter-
45 pretive and conservation education facilities; and historic preservation
46 projects to improve, restore or rehabilitate property listed on the
47 state or national registers of historic places to protect the historic,
48 cultural or architectural significance thereof.
49 § 54-1402. State parks and lands infrastructure and stewardship
50 projects. 1. The commissioner and the commissioner of parks, recreation
51 and historic preservation are authorized to undertake state parks and
52 lands infrastructure and stewardship projects.
53 2. No monies shall be expended for state parks and lands infrastruc-
54 ture and stewardship projects except pursuant to an appropriation there-
55 for.
S. 6292 88 A. 9292
1 § 5. Subdivision 7 of section 92-s of the state finance law is
2 REPEALED.
3 § 6. Subdivision 2 of section 54-0509 of the environmental conserva-
4 tion law, as amended by section 18 of part A of chapter 58 of the laws
5 of 1998, is amended to read as follows:
6 2. An agreement by the commissioner to make state assistance payments
7 toward the cost of the project by periodically reimbursing the munici-
8 pality for costs incurred during the progress of the project to a maxi-
9 mum of either fifty percent of the cost, or [seventy-five] ninety
10 percent of the cost for a municipality with a population smaller than
11 thirty-five hundred as determined by the current federal decennial
12 census, or two million dollars, whichever is less. The commissioner may
13 consider landfill gas management projects separately from landfill
14 closure projects. Such costs are subject to final computation and
15 determination by the commissioner upon completion of the project, and
16 shall not exceed the maximum cost set forth in the contract. For
17 purposes of this subdivision, the approved project cost shall be reduced
18 by the amount of any specific state assistance payments for landfill
19 closure project purposes received by the municipality from any source;
20 provided, however, that non-specific state assistance payments, such as
21 amounts paid pursuant to section fifty-four of the state finance law,
22 shall not be included in such cost reduction.
23 § 7. This act shall take effect immediately and shall be deemed to
24 have been in full force and effect on and after April 1, 2000.
25 PART I
26 Section 1. Subdivision c of section 8 of section 4 of chapter 576 of
27 the laws of 1974 constituting the emergency protection act of nineteen
28 seventy-four, as amended by chapter 403 of the laws of 1983, is amended
29 to read as follows:
30 c. Whenever a city having a population of one million or more has
31 determined the existence of an emergency pursuant to section three of
32 this act, the provisions of this act and the New York city rent stabili-
33 zation law of nineteen hundred sixty-nine shall be administered by the
34 state division of housing and community renewal as provided in the New
35 York city rent stabilization law of nineteen hundred sixty-nine, as
36 amended, or as otherwise provided by law. The costs incurred by the
37 state division of housing and community renewal in administering such
38 regulation shall be paid by such city. All payments for such adminis-
39 tration shall be transmitted to the state division of housing and commu-
40 nity renewal as follows: on or after April first of each year commencing
41 with April, nineteen hundred eighty-four, the commissioner of housing
42 and community renewal shall determine an amount necessary to defray the
43 division's anticipated annual cost, and one-quarter of such amount shall
44 be paid by such city on or before July first of such year, one-quarter
45 of such amount on or before October first of such year, one-quarter of
46 such amount on or before January first of the following year and one-
47 quarter of such amount on or before March thirty-first of the following
48 year. After the close of the fiscal year of the state, the commissioner
49 shall determine the amount of all actual costs incurred in such fiscal
50 year and shall certify such amount to such city. If such certified
51 amount shall differ from the amount paid by the city for such fiscal
52 year, appropriate adjustments shall be made in the next quarterly
53 payment to be made by such city. In the event that the amount thereof is
54 not paid to the commissioner as herein prescribed, the commissioner
S. 6292 89 A. 9292
1 shall certify the unpaid amount to the comptroller, and the comptroller
2 shall, to the extent not otherwise prohibited by law, withhold such
3 amount from the next succeeding payment of per capita assistance to be
4 apportioned to such city. In no event shall the amount imposed on the
5 owners [or certified by the division to the city] exceed ten dollars per
6 unit per year.
7 § 2. This act shall take effect April 1, 2000.
8 PART J
9 Section 1. Funds appropriated from the statewide energy improvement
10 account, special revenue fund - other, for services and expenses of the
11 power authority of the state of New York, shall be available for energy
12 efficiency projects. The use of these funds is not intended to limit the
13 right or obligation of the power authority of the state of New York to
14 comply with the provisions of any contract, including any existing
15 contract with or for the benefit of the holders of any obligations of
16 the power authority.
17 § 2. The power authority of the state of New York shall transfer
18 $1,500,000 to New York state on or before March 31, 2001.
19 § 3. Notwithstanding section 1010-a of the public authorities law, the
20 comptroller is hereby authorized and directed to transfer to the power
21 authority of the state of New York $1,500,000, constituting monies
22 appropriated to the statewide energy improvement account for the power
23 authority of the state of New York pursuant to a chapter of the laws of
24 2000 enacting the transportation, economic development and environmental
25 conservation bill, and the power authority of the state of New York is
26 authorized to hold such monies for the purposes specified in a chapter
27 of the laws of 2000.
28 § 4. In accordance with section 4 of the state finance law, the comp-
29 troller is hereby authorized and directed to transfer, upon request of
30 the director of the budget, up to $1,500,000 from the federal operating
31 grants fund (290) to the miscellaneous special revenue fund (339),
32 statewide energy improvement account, on or before March 31, 2001.
33 § 5. This act shall take effect April 1, 2000.
34 PART K
35 Section 1. Subdivision 4 of section 94 of the transportation law, as
36 added by chapter 15 of the laws of 1983, is amended to read as follows:
37 4. All fees charged and collected by the commissioner hereunder shall
38 be [paid into the state treasury to the credit of the general fund]
39 deposited to the miscellaneous special revenue fund - transportation
40 regulation account for the purposes established in this section.
41 § 2. This act shall take effect April 1, 2000.
42 PART L
43 Section 1. Paragraph (b) of subdivision 1 of section 385 of the
44 public authorities law, as added by chapter 56 of the laws of 1993, and
45 subparagraph (iii) as amended by chapter 637 of the laws of 1996, is
46 amended to read as follows:
47 (b) The authority is hereby authorized, as additional corporate
48 purposes thereof solely upon the request of the director of the budget:
49 (i) to issue special emergency highway and bridge trust fund bonds and
50 notes for a term not to exceed thirty years and to incur obligations
S. 6292 90 A. 9292
1 secured by the moneys appropriated from the dedicated highway and bridge
2 trust fund established in section eighty-nine-b of the state finance
3 law; (ii) to make available the proceeds in accordance with instructions
4 provided by the director of the budget from the sale of such special
5 emergency highway and bridge trust fund bonds, notes or other obli-
6 gations, net of all costs to the authority in connection therewith, for
7 the purposes of financing all or a portion of the costs of activities
8 for which moneys in the dedicated highway and bridge trust fund estab-
9 lished in section eighty-nine-b of the state finance law are authorized
10 to be utilized or for the financing of disbursements made by the state
11 for the activities authorized pursuant to section eighty-nine-b of the
12 state finance law; and (iii) to enter into agreements with the commis-
13 sioner of transportation pursuant to section ten-e of the highway law
14 with respect to financing for any activities authorized pursuant to
15 section eighty-nine-b of the state finance law, or agreements with the
16 commissioner of transportation pursuant to sections ten-f and ten-g of
17 the highway law in connection with activities on state highways pursuant
18 to these sections, and (iv) to enter into service contracts, contracts,
19 agreements, deeds and leases with the director of the budget or the
20 commissioner of transportation and project sponsors and others to
21 provide for the financing by the authority of activities authorized
22 pursuant to section eighty-nine-b of the state finance law, and each of
23 the director of the budget and the commissioner of transportation are
24 hereby authorized to enter into service contracts, contracts, agree-
25 ments, deeds and leases with the authority, project sponsors or others
26 to provide for such financing. The authority shall not issue any bonds
27 or notes in an amount in excess of [$4.75] $10.25 billion, plus a prin-
28 cipal amount of bonds or notes: (A) to fund capital reserve funds; (B)
29 to provide capitalized interest; and, (C) to fund other costs of issu-
30 ance. In computing for the purposes of this subdivision, the aggregate
31 amount of indebtedness evidenced by bonds and notes of the authority
32 issued pursuant to this section, as amended by a chapter of the laws of
33 nineteen hundred ninety-six, there shall be excluded the amount of bonds
34 or notes issued that would constitute interest under the United States
35 Internal Revenue Code of 1986, as amended, and the amount of indebt-
36 edness issued to refund or otherwise repay bonds or notes.
37 § 2. Paragraph (b) of section 11 of chapter 329 of the laws of 1991,
38 amending the state finance law and other laws relating to the establish-
39 ment of the dedicated highway and bridge trust fund, as amended by chap-
40 ter 432 of the laws of 1997, is amended to read as follows:
41 (b) Any service contract or contracts for projects authorized pursuant
42 to sections 10-c, 10-f, 10-g and 80-b of the highway law and section
43 14-k of the transportation law, and entered into pursuant to subdivision
44 (a) of this section, shall provide for state commitments to provide
45 annually to the thruway authority a sum or sums, upon such terms and
46 conditions as shall be deemed appropriate by the director of the budget,
47 to fund, or fund the debt service requirements of any bonds or any obli-
48 gations of the thruway authority issued to fund such projects having a
49 cost not in excess of [$2,499.55 million cumulatively by the end of
50 fiscal year 1999-00] $3,787.55 million cumulatively by the end of fiscal
51 year 2004-05.
52 § 3. The sum of two hundred fifty-seven million six hundred thousand
53 dollars ($257,600,000), or so much thereof as shall be necessary, and in
54 addition to amounts previously appropriated by law, is hereby made
55 available, in accordance with subdivision 1 of section 380 of the public
56 authorities law as amended, according to the following schedule.
S. 6292 91 A. 9292
1 Payments pursuant to subdivision (a) of this section shall be made
2 available as moneys become available for such payments. Payments pursu-
3 ant to subdivision (b) of this section shall be made on the fifteenth
4 day of June, September, December and March or as soon thereafter as
5 moneys become available for such payments. No moneys of the state in the
6 state treasury or any of its funds shall be available for payments
7 pursuant to this section:
8 SCHEDULE
9 (a) Thirty-nine million seven hundred thousand dollars ($39,700,000)
10 to municipalities for repayment of eligible costs of federal aid munici-
11 pal street and highway projects pursuant to section 15 of chapter 329 of
12 the laws of 1991, as added by section 9 of chapter 330 of the laws of
13 1991, as amended. The department of transportation shall provide such
14 information to the municipalities as may be necessary to maintain the
15 federal tax exempt status of any bonds, notes, or other obligations
16 issued by such municipalities to provide for the non-federal share of
17 the cost of projects pursuant to chapter 330 of the laws of 1991 or
18 section 80-b of the highway law.
19 The program authorized pursuant to section 15 of chapter 329 of the
20 laws of 1991, as added by section 9 of chapter 330 of the laws of 1991,
21 as amended, shall additionally make payments for reimbursement according
22 to the following schedule:
23 State Fiscal Year Amount
24 2001-02 $39,700,000
25 2002-03 $39,700,000
26 2003-04 $39,700,000
27 2004-05 $39,700,000
28 (b) Two hundred seventeen million nine hundred thousand dollars
29 ($217,900,000) to counties, cities, towns and villages for reimbursement
30 of eligible costs of local highway and bridge projects pursuant to
31 sections 16 and 16-a of chapter 329 of the laws of 1991, as added by
32 section 9 of chapter 330 of the laws of 1991, as amended. For the
33 purposes of computing allocations to municipalities, the amount distrib-
34 uted pursuant to section 16 of chapter 329 of the laws of 1991 shall be
35 deemed to be $114,188,000. The amount distributed pursuant to section
36 16-a of chapter 329 of the laws of 1991 shall be deemed to be
37 $103,712,000. Notwithstanding the provisions of any general or special
38 law, the amounts deemed distributed in accordance with section 16 of
39 chapter 329 of the laws of 1991 shall be adjusted so that such amounts
40 will not be less than 78.750 percent of the "funding level" as defined
41 in subdivision 5 of section 10-c of the highway law for each such muni-
42 cipality. In order to achieve the objectives of section 16 of chapter
43 329 of the laws of 1991, to the extent necessary, the amounts in excess
44 of 78.750 percent of the funding level to be deemed distributed to each
45 municipality under this paragraph shall be reduced in equal proportion.
46 The program authorized pursuant to sections 16 and 16-a of chapter 329
47 of the laws of 1991, as added by section 9 of chapter 330 of the laws of
48 1991, as amended, shall additionally make payments for reimbursement
49 according to the following schedule:
50 State Fiscal Year Amount
51 2001-02 $217,900,000
52 2002-03 $217,900,000
53 2003-04 $217,900,000
54 2004-05 $217,900,000
55 § 4. This act shall take effect April 1, 2000.
S. 6292 92 A. 9292
1 § 2. Severability clause. If any clause, sentence, paragraph, subdivi-
2 sion, section or part contained in any part of this act shall be
3 adjudged by any court of competent jurisdiction to be invalid, such
4 judgment shall not affect, impair, or invalidate the remainder thereof,
5 but shall be confined in its operation to the clause, sentence, para-
6 graph, subdivision, section or part contained in any part thereof
7 directly involved in the controversy in which such judgment shall have
8 been rendered. It is hereby declared to be the intent of the legislature
9 that this act would have been enacted even if such invalid provisions
10 had not been included herein.
11 § 3. This act shall take effect immediately provided, however, that
12 the applicable effective date for Parts A through L of this act shall be
13 as specifically set forth in the last section of such Part.