A BUDGET BILL submitted by the Governor
in accordance with Article VII of the Constitution
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 environmental conservation law relating to project selections, in relation to extending the effectiveness of such chapter (D); to amend the environmental 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 relating 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 transportation law, in relation to the deposit of motor carrier registration 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 transportation plan (L)
This bill contains various provisions needed to implement the Transportation, Economic Development, and Environmental Conservation portion of the 2000-01 Executive Budget.
Part A. Cornell Theory Center. This bill authorizes the Dormitory Authority to provide up to $1.2 million to Cornell University to support operations of the Cornell Theory Center for fiscal year 2000-01.
The 1999-2000 enacted Budget authorized the Dormitory Authority to provide up to $1.2 million for the support of the Cornell Theory Center. This legislation has been enacted annually since 1997-98.The Cornell Theory Center provides business and academia with affordable access to the latest in supercomputer technology. This bill will enable the Center to continue to deliver these services, while providing the Dormitory Authority with the opportunity to avail itself of the resources of Cornell University to address financial and labor management issues.
PART B. Utility Assessments. This bill authorizes the New York State Energy Research and Development Authority (NYSERDA) to obtain revenue for certain of its programs by assessments against gas corporations and electric corporations, pursuant to Section 18-a of the Public Service Law.
The bill authorizes NYSERDA to finance its Research, Development and Demonstration Program and its Policy and Planning Program with revenues from gas corporations and electric corporations. Section 18-a of the Public Service Law enables the Department of Public Service to assess gas corporations and electric corporations for the expenses of NYSERDA’s Research, Development and Demonstration Program and its Policy and Planning Program, and to assess public utility companies an amount equivalent to the total direct and indirect costs incurred for the regulation of public utility companies. Without this legislation, NYSERDA could not continue operating necessary energy programs in the 2000-01 State Fiscal Year. The Legislature has enacted identical legislation for the past five years.
Part C. Surf clam and ocean quahog fees. This bill amends an existing provision of the Environmental Conservation Law to permanently extend DEC’s authority to collect fees on bushels of surf clams and ocean quahogs taken from the State’s certified waters beyond the existing expiration date of January 1, 2001. Revenues from the fees will continue to be deposited to the Surf Clam/Ocean Quahog Account of the Conservation Fund.
Section 13-0309 of the Environmental Conservation Law currently authorizes DEC to collect per bushel fees on surf clams (15 cents) and quahogs (10 cents) taken from New York State waters and directs that the fees be deposited in the Surf Clam/Ocean Quahog Account of the Conservation Fund. State Finance Law requires that these deposits be available to DEC for research and stock assessments of surf clams and ocean quahogs. The existing authorization to collect the fees expires on January 1, 2001. The currently authorized surcharges for surf clams and ocean quahogs were enacted in 1994 (Chapter 512) and extended in 1996 and 1998.
By permanently extending DEC’s authority to collect fees on surf clams and ocean quahogs, this legislation will ensure continued annual revenues of approximately $50,000. These revenues are necessary to support ongoing efforts by DEC to conduct stock assessments and research for the long term benefit of these fisheries and the industry they support, and obtain data necessary for the management of these important resources.
Part D. Clean Water/Clean Air Bond Act. This bill would extend, until April 1, 2003, the project selection and reporting provisions of the 1996 Clean Water/Clean Air Bond Act which would otherwise expire on April 1, 2000.
Effective April 1, 2000, this bill extends the effective date of Chapter 1 of the Laws of 1997 to April 1, 2003. This law is scheduled to expire on April 1, 2000 and requires:
Chapter 1 of the Laws of 1997 provides for increased accountability over the Clean Water/Clean Air Bond Act by requiring that projects financed from the Bond Act meet strict criteria and be open to review by environmental experts and the public. Further, it ensures that decisions to fund projects are based on objective environmental and scientific measures. The project criteria and selection process required by Chapter 1 need to be continued since $654 million of the $1.75 billion authorized by the Bond Act has not yet been appropriated.
Part E. State Superfund. This bill will ensure the continued protection of public health and the environment through the reform and enhancement of the Inactive Hazardous Waste Disposal Site Program (State Superfund Program) and the Oil Spill Program; assure the most efficient utilization of public and private funding sources for the investigation and remediation of sites under such programs and to complete remediation efforts as quickly as possible; provide the statutory authority and funding to address sites contaminated with hazardous substances, not currently authorized under the existing State Superfund Program; and clarify the authority for a Voluntary Cleanup Program within the Department of Environmental Conservation (DEC).
The bill also proposes programmatic adjustments in the areas of remedy selection, liability and citizen participation for each of the existing remedial programs. It also includes financial incentives to encourage non-responsible parties or responsible parties, whose liability results only from ownership or operation of the site subsequent to the discharge or disposal at the site, to redevelop contaminated sites under the Voluntary Cleanup Program.
This bill incorporates recommendations of the Superfund Working Group that was convened by Governor Pataki in August 1998 and issued its report to the Governor on June 2, 1999.
Summary of Provisions:
Section 1. Environmental Conservation Law §27-1301(1) is amended to expand the definition of “hazardous waste” to include all hazardous substances identified by DEC pursuant to ECL §37-0103, except for petroleum, and other exceptions that are consistent with the federal Superfund law.
ECL §27-1301(3) is amended to clarify that DEC can include institutional controls and engineering controls as components of a remedy under the State Superfund Program. When these controls are used, the owner of the property must provide the Department reasonable access to the site and annually submit a statement, under penalty of perjury, certifying that the controls are unchanged from the previous certification and that nothing has occurred that would constitute a violation of any of the controls. DEC must also maintain a database with relevant information on such controls and make the information on that database available in each county.
ECL §27-1301(4), which provides the definition of a “person” under the State Superfund Program, is amended to implement liability exemptions for lenders, the State and public corporations and a liability limitation for fiduciaries. The lender and State and public corporation liability exemptions and the fiduciary limitation are derived from the federal Superfund law. The amendments also implement liability protection for industrial development authorities acting as conduit financiers. Such protection for industrial development agencies is consistent with present DEC policy and federal Superfund law.
§2. ECL §27-1303(1) which requires municipalities to provide the DEC with a report identifying the suspected inactive hazardous waste disposal sites is amended to explicitly require municipalities to provide such information to DEC annually. This amendment will codify and clarify existing practices. In addition, the amendments require municipalities to survey their jurisdictions after the first year of the effective date of this bill for suspected inactive hazardous waste disposal sites, including hazardous substance sites, and provide DEC such information annually thereafter.
§3. ECL §27-1305(4)(b) is amended to expressly allow DEC to defer listing a site on the Registry of Inactive Hazardous Waste Disposal Sites if the site is the subject of a voluntary agreement under the new Voluntary Remediation Program and the person subject to the agreement is in compliance with its terms.
§4. ECL §27-1313(1)(b) is amended to provide that the objective of a cleanup program for an inactive hazardous waste disposal site shall be the protection of public health and the environment, with the minimum objective being to eliminate or mitigate all significant threats to public health and the environment presented by the contamination through proper application of scientific and engineering principles. The amended subdivision will also list the factors that must be considered by DEC in selecting a remedy. The remedy selection factors that are included in the bill are presently contained in DEC regulations with the exception of one: the current, intended, and reasonably anticipated future land uses for the property and its surroundings, if ascertainable, must also be considered. The consideration of land uses in this manner is consistent with the practice of the US Environmental Protection Agency (USEPA) at federal Superfund sites. In addition, this provision provides that there will be a presumption that any soil contamination will be cleaned up to residential soil cleanup levels at Class 1 and Class 2 Registry sites that are: (i) not in active industrial or commercial use; (ii) being remediated by a responsible party; and (iii) are adjacent to residential areas. This presumption may be overcome by a written finding of the DEC Commissioner after citizen participation.
§5. ECL §27-1313(3) is amended to authorize the DEC to offer technical assistance grants of up to $50,000 per site for non-responsible municipalities and/or a community group. These grants may be used by the recipients to obtain technical assistance in interpreting existing information with regard to the nature and extent of the contamination at the site and the development and implementation of a remedial program.
ECL §27-1313(4) is amended to provide for defense against liability for parties that currently would be considered responsible parties but are truly innocent of having caused the contamination problem at a site. This defense is based on the “innocent party” liability defense found in the federal Superfund law.
§6. ECL §27-1313 is amended by adding a new subdivision 10 to provide that if DEC conducts the remediation of a site after the party or parties responsible according to applicable principles of statutory or common law liability have failed to do so, the State may recover all of its costs of remediation, plus a penalty in an amount no less than one and no more than three times all such costs (often referred to as treble damages). To obtain the penalty, DEC must prove by a preponderance of the evidence that it expended reasonable efforts to obtain a voluntary commitment from the responsible party or parties before conducting the remediation. In addition, a responsible party at a multiple responsible party site that voluntarily commits to conduct the remediation may recover three times the excess paid by that responsible party over and above such responsible party’s equitable share of costs, from other responsible parties that failed to enter into a cost-sharing agreement with the responsible party conducting the remediation. Also, in order for a responsible party to recover three times such amount, such responsible party must pay one-third of any such award into the Remedial Program Transfer Fund.
ECL §27-1313 is amended by adding a new subdivision 11 to provide that any person who is subject to an order to remediate an inactive hazardous waste disposal site or who entered into a voluntary agreement with DEC may seek contribution from any other responsible party for costs incurred in implementing a DEC approved remedial program at the site.
ECL §27-1313 is amended by adding a new subdivision 12 to provide that the State may recover damages for injury or destruction or loss or loss of use of the State’s natural resources from parties responsible according to applicable principles of statutory or common law liability. Damages recovered would be paid into the Remedial Program Transfer Fund. This cause of action is based on the natural resources damages cause of action found in the federal Superfund Law.
§7. A new ECL §27-1314 is added to require DEC to provide a covenant not to sue to a party that remediates a site under the terms of an order of consent to DEC’s satisfaction. The covenant not to sue would apply for contamination identified and remediated, would be binding on the state, and would contain certain reservations. Some reservations would not apply if the party remediating the site remediated the soil contamination to unrestricted use (soil category 1). In addition, a party receiving a covenant not to sue would not be liable for claims for contribution regarding the contamination identified and remediated. A party responsible according to applicable principles of statutory or common law liability may not be released from liability for natural resource damages. The covenant not to sue would extend to the successors and assigns of such party except parties responsible as of the date of the issuance of the order on consent according to applicable principles of statutory or common law liability.
§8. ECL §27-1315 is amended so that the definition of “hazardous waste” in existing DEC regulations pertaining to the State Superfund Program would be modified to match the new definition in this bill as of the effective date of the bill.
§9. Existing ECL §27-1316, which directed DEC and the Department of Health (DOH) to conduct the Hazardous Substances Sites Study, is repealed since the study has already been completed and section 2 of the bill addresses on-going identification of sites, including hazardous substance sites. A new §27-1316 is added to have the Commissioner of Environmental Conservation establish a technical advisory panel, which will provide advice on the development of, and recommend, soil cleanup levels that will provide for a three-category approach to the remediation of soil contamination at State Superfund sites, voluntary cleanup sites, and oil spill sites. Under soil category 1, the party conducting remediation would use promulgated cleanup levels that would be protective of public health and the environment that would allow the property to be used for any purpose without restriction and without reliance on institutional or engineering controls. Under soil category 2, the party conducting remediation would use promulgated cleanup levels that would be protective of public health and the environment for the property’s current, intended or reasonably anticipated residential, commercial, or industrial use and with consideration of institutional or engineering controls to reach these levels. Soil category 3 would be a process for determining cleanup levels that would be protective of public health and the environment, using site-specific data for the site’s current, intended, and reasonably anticipated residential, commercial or industrial use. The panel would be required to submit its recommendations within 18 months of the first meeting of the panel. After the close of an appropriate public comment period, DEC and DOH would promulgate the required cleanup levels taking into consideration the recommendations of the technical advisory panel and other information deemed relevant.
§10. A new ECL Article 27, Title 14, Voluntary Remediation Program (Voluntary Cleanup Program), is added to require DEC to formalize the existing Voluntary Cleanup Program to allow a person, subject to eligibility requirements defined in the new §27-1405, to enter into an agreement with DEC to investigate and/or remediate hazardous waste and petroleum contamination at an affected site.
ECL § 27-1401 provides the definitions for the terms used in the title.
A new ECL §27-1403 is added which describes the process by which a volunteer may apply to DEC to enter the Voluntary Cleanup Program. Included is a description of the types of information that will be required from the applicant seeking to participate in the program. In addition, DEC will determine if the site qualifies for listing on the Registry of Inactive Hazardous Waste Disposal Sites. If the site does qualify for listing as a Class 1 or 2 site, and if the volunteer commits to enter into an agreement which requires the elimination or mitigation of all significant threats to public health and the environment, DEC will defer listing the site and continue to defer listing such site on the Registry as long as volunteer is in compliance with a voluntary agreement.
A new ECL §27-1405 sets forth DEC’s procedures for determining the applicant’s eligibility for the Voluntary Cleanup Program. The application is deemed ineligible if: the site is listed in the Registry as a class 1 or 2 site and the applicant is a responsible party at the site unless such party’s liability results only from ownership or operation of the site subsequent to the discharge or disposal at the site; the site is on the National Priorities List; insufficient information is provided by the applicant; the applicant is subject to a pending enforcement action; or the site does not meet the definition of “affected site” under ECL §27-1401(2).
A new §27-1407 describes the provisions to be included in a voluntary agreement. DEC and the volunteer must agree to a proposed voluntary agreement to address a site’s investigation or remediation or both. The voluntary agreement will require the volunteer to pay for State costs incurred overseeing and reviewing the cleanup. A volunteer may offset against the State’s costs any technical assistance grant, as provided under §27-1313 of the bill, it provides for a site that DEC has determined poses a significant threat to public health and the environment. The agreement must also include, but not be limited to, provisions concerning dispute resolution, State indemnification, voluntary agreement termination, State permit exemptions, and cost recovery, in certain instances, for costs incurred before the effective date of the agreement.
An agreement including an investigation component must contain a work plan that provides for the investigation and characterization of the nature and extent of the contamination within the site’s boundaries. However, a volunteer responsible for the contamination, unless such volunteer’s responsibility results only from ownership or operation of the site subsequent to the discharge or disposal at the site, must also investigate and characterize the nature and extent of off-site contamination. A volunteer who is a non-responsible party or a responsible party whose liability results only from ownership or operation of the site subsequent to the discharge or disposal at the site would be required to perform an exposure assessment for off-site contamination. If it is determined that hazardous waste or petroleum migrating from the site poses a significant threat to public health or the environment, DEC will require that the responsible party, but not the volunteer if the volunteer is a responsible party whose liability results solely from ownership or operation of the site subsequent to the discharge or disposal at the site, to conduct off-site remediation. If the responsible party cannot be located or fails to take such action, DEC will undertake the off-site remediation and seek recovery of costs from the responsible party or parties.
A proposed voluntary agreement including a remediation component must contain a work plan that provides for the development and implementation of a remedial program for the contamination within site boundaries. The cleanup objective for sites remediated under the Voluntary Cleanup Program will be the same as proposed in §27-1313(1)(b) of the bill. A volunteer responsible for the contamination, unless such volunteer’s responsibility results only from ownership or operation of the site subsequent to the discharge or disposal at the site, would also be required to address off-site contamination. In addition, the work plan must also include an analysis that the proposed remedy was assessed using evaluation factors proposed in §27-1313 of the bill. Also, the volunteer must submit a final remediation report that, at a minimum, demonstrates that there is no contamination in concentrations exceeding remediation requirements; the remediation was conducted in accordance with the agreement; any land use restrictions are properly recorded; and that an operation and maintenance plan has been approved by DEC for any engineering controls in effect at the site.
The Commissioner will exercise best efforts to approve, modify or reject a proposed voluntary agreement within 60 days after completion of the public comment period or public meeting whichever is later.
A new §27-1409 sets forth provisions for citizen participation and public notification for voluntary agreements. Included are provisions for notification in the Environmental Notice Bulletin (ENB) and to interested or affected parties. Also, in addition to publication in the ENB and notifying interested and affected parties, proposed agreements for remediating a site would require a 45-day public comment period. A public meeting would be required for any site that is determined by DEC to constitute a significant threat to public health or the environment.
A new §27-1411 requires DEC to provide a covenant not to sue to a party that remediates a site to DEC’s satisfaction. The covenant not to sue would apply for contamination identified and remediated, would be binding on the state, and would contain certain reservations. Some reservations would not apply if the party remediating the site remediated the soil contamination to unrestricted use (soil category 1). In addition, a party receiving a covenant not to sue would not be liable for claims for contribution regarding the contamination identified and remediated. The covenant not to sue would extend to successors and assigns of such party, except parties responsible as of the effective date of the voluntary agreement according to applicable principle of statutory or common law liability. This provision is consistent with proposed §27-1314 of the bill.
A new §27-1413 requires the Department to issue a “remediation certificate” upon satisfactory completion of a voluntary cleanup, certifying that the volunteer has completed a remedial program which would make the volunteer eligible for tax credits. In order to receive this certificate, the volunteer must be a non-responsible party or a responsible party whose liability results only from ownership or operation of the site subsequent to the discharge or disposal at the site. If the volunteer has remediated the soil at the site to the cleanup levels of soil category 1, when not specifically required by DEC to cleanup to soil category 1, the remediation certificate would state that the volunteer is eligible to receive an additional two percent credit.
A new §27-1415 specifically requires that the volunteer pay the State’s costs to oversee the agreement.
§11. ECL §52-0101(8) is amended to refer to the new definition of “hazardous waste” in section 27-1301 rather than the definition in Title 9 of Article 27.
§12. ECL §52-0103(1) is amended to remove the authorization to spend up to $100,000 of 1986 Environmental Quality Bond Act funds for the Hazardous Substances Waste Disposal Sites study since the study has already been completed and section 2 of the bill addresses on-going identification of sites, including hazardous substance sites.
§13. ECL §71-2727(1) is amended to clarify that DEC’s authority to issue orders under this subdivision does not preclude DEC from settling any matter under Article 27 by stipulation, agreed settlement, consent order, default, or other informal method.
§14. The section heading of §213 of the Civil Practice Law and Rules (CPLR) is amended to refer to claims pursuant to ECL §27-1313 and to claims for natural resource damages.
§15. New subdivisions 9, 10 and 11 are added to §213 of the CPLR to establish a six-year statute of limitations, beginning with the initiation of physical on-site construction of the remedial program, on State actions to recover costs and penalties under ECL §27-1313(10); a six-year statute of limitations on actions for contribution under ECL §27-1313(11), beginning with the later of the date of any judgment regarding the costs that are the subject of the claim for contribution or the date of issuance of an order by the Department regarding the costs that are the subject of the claim or the date of issuance of an agreement by the Department regarding the costs or activities that caused the expenditure of the costs; and a six-year statute of limitations on actions under ECL §27-1313(12) to recover natural resource damages, beginning upon the completion of remedial construction at the site.
§16. A new section 970-r is added to the General Municipal Law to authorize the Secretary of State, in consultation with the Commissioner of Environmental Conservation, to provide technical and financial assistance, using available monies, to municipalities and to not-for-profit corporations acting in cooperation with municipalities to conduct brownfield redevelopment area planning. The local cost share is 25% of the cost of such plans.
Funding can be used for: 1) preparation of a pre-planning study to develop information necessary for designating a brownfield redevelopment area (e.g., boundaries of area, number and size of brownfield sites, current and anticipated uses, known environmental conditions and ownership of the sites); 2) preparation of brownfield redevelopment area plans (e.g., defining anticipated end uses of the site, identifying infrastructure needs); and 3) conducting site assessments to determine the nature and extent of contamination and to develop a proposed remediation strategy. Site assessments are subject to the review and approval of the Commissioner.
Funding preference shall be given based on need for environmental restoration, potential for economic benefit to the State and creation of new jobs or new public resource, and degree of local support of the initiative.
§17. A new §172-a is added to the Navigation Law (Nav. L.) to implement liability exemptions under the Oil Spill Program for lenders and the State and public corporations, and a liability limitation for fiduciaries consistent with those proposed to the State Superfund Program under the bill. Liability protection for industrial development authorities acting as “conduit financiers” is also implemented. Such protection for industrial development agencies is consistent with present DEC policy and federal Superfund law.
§18. and §19. Nav. L. §176 is amended to provide that the objective of a cleanup program for a spill site other than one constituting an immediate response shall be the protection of public health and the environment, with the minimum objective being to eliminate or mitigate all significant threats to public health and the environment presented by the spill through proper application of scientific and engineering principles.
This cleanup objective is consistent with the cleanup objective for contaminated sites addressed under the State Superfund Program and the Voluntary Cleanup Program. The amended section will also apply the factors that must be considered in selecting a remedy set forth in ECL §27-1313(1)(b) as proposed in the bill. The cleanup objective for immediate response cleanups under the Oil Spill Program will be to effectuate prompt cleanup and removal of contamination to ensure restoration of the environment to pre-spill conditions.
The amendment will provide enhanced citizen participation regarding cleanup and removal actions under the Nav. L. other than ones constituting immediate responses. Included are provisions for notification in the Environmental Notice Bulletin (ENB) and to interested or affected parties. Also, in addition to the publication in the ENB and notifying interested and affected parties, proposed remedies would require a 45-day public comment period.
§20. Nav. L. §181(1) is amended to provide that if DEC conducts the remediation of a spill site after the party or parties other than petroleum transporters or suppliers responsible according to applicable principles of statutory or common law liability have failed to do so, the State may recover all of its costs of remediation, plus a penalty in an amount no less than one and no more than three times all such costs. To obtain the penalty, DEC must prove by a preponderance of the evidence that it expended reasonable efforts to obtain a voluntary commitment from the responsible party or parties before conducting the remediation. In addition, a responsible party at a multiple responsible party site who voluntarily commits to conduct the remediation may recover three times its costs from other responsible parties that failed to enter into a cost-sharing agreement with the responsible party conducting the remediation. This recovery would be limited to expenditures over and above that responsible party’s equitable share of the cleanup costs. Also, one-third of any such award would be paid into the Remedial Program Transfer Fund. This treble damages provision is consistent with the treble damages provision proposed for the State Superfund Program under this bill.
Nav. L. §181(1) is further amended to establish a defense against liability for parties other than petroleum transporters or suppliers that currently would be considered responsible parties but are truly innocent of having caused the contamination problem at a spill site. This defense is based on the “innocent party” liability defense found in federal Superfund law and consistent with the proposed changes to the State Superfund Program in the bill.
§21. A new subdivision 6 is added to Nav. L. §180 to direct the administrator of the New York Environmental Protection and Spill Compensation Fund to submit an annual independent audit of the Fund to the Governor and Legislature.
§22. Nav. L. §181(4) is amended to clarify that despite the liability exemptions and limitations, and the innocent party defense added by this bill, an act or omission caused solely by war, sabotage, or governmental negligence are the only defenses against liability that may be raised by an owner or operator of a major facility or vessel responsible for a discharge. A new subdivision 7 is added to establish that any party receiving a newly added liability exemption or limitation is deemed to have waived any claim the party may have against the New York Environmental Protection and Spill Compensation Fund.
§23. Nav. L. §183 is amended to require DEC to provide a covenant not to sue to a party that remediates a site to the DEC’s satisfaction under an order on consent. The covenant not to sue would apply for contamination identified and remediated, would be binding on the state, and would contain certain reservations. Some reservations would not apply if the party remediating the site remediated the soil contamination to unrestricted use (soil category 1). In addition, a party receiving a covenant not to sue would not be liable for claims for contribution regarding the contamination identified and remediated. A responsible party may not be released from liability for natural resource damages. The covenant not to sue would extend to successors and assigns of the party, except parties responsible as of the date of the issuance of the order on consent according to applicable principles of statutory or common law liability. This provision is consistent with the proposed covenant not to sue provisions for the State Superfund and Voluntary Cleanup Programs.
§24. Conforming amendments are made to definitions of “hazardous waste,” “inactive hazardous waste disposal site,” and “inactive hazardous waste disposal site remedial program” in the New York State Environmental Facilities Corporation Act at §1281 of the Public Authorities Law.
§25. Public Health Law §-a is amended to contain the same conforming amendments and an amended definition of “waste.” In addition, PHL §1389-a is further amended to implement liability exemptions for lenders and municipalities, and a liability limitation for fiduciaries. These exemptions and limitations are consistent with those proposed by the bill under the State Superfund and Oil Spill Programs. Liability protection for industrial development authorities acting as “conduit financiers” is also implemented.
§26. PHL §1389-b(4) is amended to establish a defense against liability for parties that currently would be considered responsible parties but are truly innocent of having caused the contamination problem at a spill site. This defense is based on the “innocent party” liability defense found in federal Superfund law and is consistent with those proposed by the bill under the State Superfund and Oil Spill Programs.
§27. PHL §1389-e, which directed DOH to cooperate with DEC in conducting the Hazardous Substances Sites Study, is repealed because the study has been completed and section 2 of the bill addresses on-going identification of sites, including hazardous substance sites.
§28. Real Property Law (RPL) §316-b is amended to require the recording officer of each county to record each declaration of restriction or any other declaration of covenants under ECL Article 27, Title 14 (Voluntary Cleanup Program) or under any other provision of the ECL.
§29. Subdivision 1 of §97-b of the State Finance Law is amended to add a “hazardous waste cleanup account” to the “Hazardous Waste Remedial Fund.” The hazardous waste cleanup account will fund eligible activities under the State Superfund and Voluntary Cleanup Program.
Subdivision 2 of §97-b is amended to delete the provisions directing Waste End Assessment revenue collected pursuant to ECL §27-0923 and fees and penalties collected pursuant to ECL §72-0201 to the industry fee transfer account of the Hazardous Waste Remedial Fund. A new provision is added authorizing the hazardous waste cleanup account to receive moneys transferred from the remedial program transfer fund.
Subdivision 3 of §97-b is amended to make money in the hazardous waste remedial fund available to all State agencies rather than to DEC only, allowing all State agencies involved in the remedial programs to use the moneys. The provision authorizing the use of funds to conduct the hazardous substance waste disposal sites study is deleted and two new provisions are added authorizing the use of funds for the costs associated with the Voluntary Cleanup Program and the Brownfield Redevelopment Area Program.
Subdivision 6 of §97-b is amended to require that any moneys recovered or reimbursed for funds expended from the hazardous waste cleanup account be deposited in the Remedial Program Transfer Fund.
Subdivision 12 of §97-b is amended to no longer require the Comptroller to notify the State Superfund Management Board when the Comptroller determines that the industry fee transfer account will lack sufficient funds to make debt service payments.
Subdivision 13 of §97-b, which describes the actions the State Superfund Management Board would take upon receiving the notification under subdivision 12, is deleted.
A new subdivision 15 is added to §97-b to establish procedures to address the use of revenue currently deposited in the industry fee transfer account once the balance in that account has reached the amount necessary to fund 50% of the debt service of the 1986 EQBA. The bill requires the Comptroller to estimate the total debt service on the bonds and notes and estimate the state fiscal year in which the sum of the special revenues received will exceed fifty percent of the estimate debt service when the 1986 EQBA bonds issued exceeds 95% of the authorized bond act amount. Such estimates must be certified to the Governor and the Legislature.
A new subdivision 16 is added to §97-b stating that all moneys currently deposited in the industry fee transfer account shall be redirected to the remedial program transfer fund effective April first of the state fiscal year succeeding the state fiscal year certified in subdivision 15.
A new subdivision 17 is added to §97-b authorizing the Comptroller, upon the request of the Director of the Budget, to transfer moneys from the site investigation and construction account to the Hazardous Waste Cleanup account of the Hazardous Waste Remedial Fund.
§30. A new §97-uuu is added to the State Finance Law establishing the Remedial Program Transfer Fund consisting of revenue from registration fees; license fees, fines and penalties associated with the Environmental Conservation Law and the Navigation Law; funds previously deposited in the industry fee transfer account; cost recovery and various other sources of revenue.
Subdivision 3 of §97-uuu authorizes the Comptroller, upon the request of the Director of the Budget, to transfer each state fiscal year from the General Fund to the remedial program transfer fund an amount equivalent to the projected amount of moneys to be deposited or transferred to the remedial program transfer fund by the revenue sources identified in subdivision 2 during that fiscal year.
Subdivision 4 of §97-uuu requires that the revenues in the remedial program transfer fund be kept separate, that all deposits be secured if required by the Comptroller, and that all revenue, upon the discretion of the Comptroller, be invested.
Subdivision 5 of §97-uuu grants the Comptroller the authority to transfer, upon the request of the Director of the Budget, money deposited in the remedial program transfer fund to the Environmental Protection and Spill Compensation Fund or the hazardous waste cleanup account of the Hazardous Waste Remedial Fund.
§31. Nav. L. §179(2) is amended to authorize the New York Environmental Protection and Spill Compensation Fund to receive money transferred from the Remedial Program Transfer Fund pursuant to subdivision 5 of the new §97-ttt of the State Finance Law. A new subdivision 3 is added to §179 to redirect revenues that are currently deposited into the New York Environmental Protection and Spill Compensation Fund to the Remedial Program Transfer Fund beginning April 1, 2001.
§32. ECL §17-1009(2) is amended to increase petroleum bulk storage registration fees from a maximum of $250 to a maximum of $500 per facility. The fees, which are currently deposited in the New York Environmental Protection and Spill Compensation Fund, will be deposited in the Remedial Program Transfer Fund beginning April 1, 2001. The five-year fee for a party with a combined storage capacity at a facility of 1,000 to 2,000 gallons is $100 per facility; greater than 2,000 but less than 5,000 gallons is $300 per facility; greater than 5,000 but less than 400,000 gallons is $500 per facility.
§33. Subdivision 3 of §362 of Chapter413 of the Laws of 1999 is amended to remove the provision that repeals, as of April 1, 2004, DEC’s authority to use the New York Environmental Protection and Spill Compensation Fund to pay for the expenses of the Petroleum Bulk Storage Program.
§34. ECL §71-2725(1)(b) is amended to redirect revenue from fines and penalties collected pursuant to §71-2705, §71-2721, and §71-2723 from the General Fund to the Remedial Program Transfer Fund.
§35. ECL §72-0201(1)(b) is amended to redirect one-half of revenue from hazardous waste generator fees and hazardous waste transporter fees from the Hazardous Waste Remedial Fund to the Remedial Program Transfer Fund. A new paragraph e is added to ECL §72-0201(1) to direct all revenue from the hazardous waste generator surcharges to the Remedial Program Transfer Fund. ECL §72-0201(9) is amended to redirect one-half the revenue from penalties and interest related to hazardous waste generator or transporter fees and surcharges from the Hazardous Waste Remedial Fund to the Remedial Program Transfer Fund. Conforming amendments are made to ECL §72-0201(11).
§36. A new ECL §72-0403 is added which provides for hazardous waste generator surcharges. Generators of hazardous waste will be required to submit an annual fee to the department based on the amount of waste generated per year. These surcharges will range from four thousand dollars up to three hundred sixty thousand dollars.
§37. ECL § 27-0923 (4)(b) is amended to redirect revenue collected from Waste End Assessments from the Industry Fee Transfer Account of the Hazardous Waste Remedial Fund to the Remedial Program Transfer Fund.
§38. Intentionally omitted.
§39. A new section 21 is added to the Tax Law to provide for a brownfield redevelopment tax credit, to be allowable against tax under five Articles of the Tax Law. These are Articles 9 (franchise taxes on transportation and transmission companies, agricultural cooperatives and utilities), 9-A (general business corporations), 22 (personal income tax), 32 (banking corporations) and 33 (insurance corporations). The credit would be subject to carryforward, and in the case of a new business a taxpayer may elect to treat 50 percent of the amount of any carryover as a refundable overpayment of tax.
Subdivision (a) of Tax Law section 21 provides for the allowance and computation of the credit. The credit consists of the sum of up to two credit components:
1. Site preparation credit component: This credit is equal to the applicable percentage (10 percent in the case of credits claimed under Articles 9, 9-A, 32 and 33, and 8 percent in the case of credits claimed under Article 22 of the Tax Law, or 12 and 10 percent, respectively, if the taxpayer has remediated the soil on the site to soil category 1) of site preparation costs paid or incurred by the taxpayer with respect to a qualified site. A qualified site is a brownfield which has been cleaned up and with respect to which a remediation certificate has been issued by the Commissioner of Environmental Conservation. Site preparation costs do not include the costs of acquiring the land.
2. Tangible property credit component: This credit is equal to the applicable percentage (either 10 or 8 percent, or 12 and 10 percent, as above) of the cost or other basis for federal income tax purposes of tangible personal property and other tangible property, including buildings and structural components of buildings, principally used for commercial, industrial, recreational or environmental conservation purposes on a qualified site.
In order to be eligible for this credit, the taxpayer must have obtained a remediation certificate with respect to such site. The certificate is issued by Commissioner of Environmental Conservation pursuant to the new §27-1413.
Subdivision (b) of section 21 contains definitions of terms. Paragraph (1) defines “qualified site,” paragraph (2) defines “site preparation costs,” paragraph (3) defines “qualified tangible property,” paragraph (4) defines “remediation certificate,” paragraph (5) defines “corporate new business.”
Subdivision (c) of section 21 provides that property which qualifies for the credit under this section and also for a credit under Tax Law section 210.12 (investment tax credit) or Tax Law section 210.12-B (Economic Development Zone investment tax credit), or both, (or the parallel sections under Article 22 or 32) may be the basis for only one of such credits.
Subdivision (d) of section 21 provides the rules with respect to recapture of the credit where the qualified property is disposed of or ceases to be in qualified use.
Subdivision (e) of section 21 contains cross-references to the applicable credit provisions within each of the affected Articles of the Tax Law.
Sections 40 through §43, §48 and §49 add provisions to Articles 9, 9-A, 22, 32, and 33 of the Tax Law, respectively, to allow taxpayers under each of those articles to claim the credit provided for under section 21 of the Tax Law, and to provide for the proper administration thereof. Section 40 adds a new section 187-f to Article 9. Section 41 adds a new section 210.33 in Article 9-A. Section 42 and 42-a of the bill amends section 606(i) of the Tax Law, in Article 22, to render the credit under the personal income tax available to S corporation shareholders. Section 43 adds a new section 606(aa) to Article 22. Section 48 adds a new section 1456(o) to Article 32. Section 49 adds a new §1511(q) in Article 33.
§44. Section 683 of Article 22 of the Tax Law is amended to permit the Commissioner of Taxation and Finance to assess any tax liability that may arise if DEC modifies or revokes a remediation certificate. Such liability may be assessed within one year after a determination revoking or modifying such a certificate becomes final. In the event of such an assessment is issued, the taxpayer would have the right to offset against it any of the investment tax credits which would have been allowed for the investment had the taxpayer not elected to take the credit provided for by new section 13.
§45. Section 687 of Article 22 of the Tax Law is amended to permit a taxpayer to file a claim for credit or refund where it has been finally determined that DEC erroneously denied a remediation certificate. The taxpayer may file such a claim within (i) three years from the time the return was filed, (ii) two years from the time the tax was paid, or (iii) two years from the time the final determination that DEC’s denial was erroneous has been made and is no longer subject to judicial review, whichever of such periods expires latest.
§46. Section 1083 of Article 27 of the Tax Law is amended to correspond to Section 683 of Article 22 as amended by §44 above. Article 27 contains procedural provisions applicable to taxpayers under Article 9, 9-A, 32 and 33.
§47. Section 1087 of Article 27 of the Tax Law is amended to correspond to Section 687 of Article 22 as amended by §45 above.
Existing Law:
DEC administers two distinct remedial programs: the inactive hazardous waste disposal site remediation program authorized by ECL §27-1301 et seq. known as the State Superfund Program, and the Oil Spill Program authorized by Nav. L. §170 et seq. The Department of Health (DOH) also administers a counterpart inactive hazardous waste disposal site remediation program authorized by PHL §1389-a et seq. The former program is intended to address health and environmental threats attributable to contamination by hazardous waste, and is funded via the Hazardous Waste Remedial Fund created at State Finance Law (SFL) §97-b. The latter program is intended to address health and environmental threats attributable to contamination by petroleum, and is funded via the Environmental Protection and Spill Compensation Fund created at Nav. L. §179. Both programs are administered by a single organization within DEC, the Division of Environmental Remediation; and the two programs sometimes overlap in practice, since it is common to encounter a site at which there exist health and environmental threats resulting from the disposal of both hazardous waste and petroleum products.
The Environmental Restoration (Brownfields) Program authorized under the 1996 Clean Water/Clean Air Bond Act at ECL §56-0501 et seq. provides grants to municipalities to investigate and cleanup hazardous waste, hazardous substance and petroleum contamination.
DEC administers a Voluntary Cleanup Program under the provisions of the ECL which authorizes such Program through the general powers.
The State Superfund Program authorized by ECL §27-1301 et seq. contains numerous provisions which require amendment, including amendments to needed to confer upon New Yorkers protections under State law comparable to those already conferred under similar federal law, the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA), as amended.
The Tax Law presently contains no credit such as the one which would be added by this bill.
Statement in Support:
New York has made significant progress in remediating contaminated sites. The State Superfund Program has reduced or eliminated the threat of contamination from hundreds of inactive hazardous waste disposal sites. The Oil Spill Program coordinates with a local and regional network and responds to thousands of petroleum spills annually. The Voluntary Cleanup Program enables parties to remediate brownfields with private funding and return these sites to productive use. The Clean Water/Clean Air Bond Act of 1996 provides funding to municipalities to investigate and remediate contaminated properties, and return the properties to productive use. The reforms and enhancements included in this bill will serve to accelerate and strengthen the effectiveness of site remediations in New York State.
Hazardous Substance Sites
Currently, the State Superfund Program can only address sites contaminated by “hazardous waste” as defined in ECL §27-1301. DEC has recognized the need to address hazardous substance sites that pose a significant threat to public health and the environment, and has strived to clean up hazardous substance sites through other DEC programs or through the federal Superfund Program. However, the number of hazardous substance sites requiring remediation, the cost of remediating these sites, and the lack of a dedicated funding source have precluded DEC from addressing many of the hazardous substance sites requiring remediation.
A March 1994 law directed DEC and the DOH to study the scope of hazardous substance sites that may pose a significant threat to public health or the environment and to estimate the cost to remediate such sites. DEC and DOH issued the “Hazardous Substance Waste Disposal Site Study Final Report” in June 1995. An addendum to the report, which updates the information contained in the original report, was completed in December 1998. The addendum concludes that between 118 and 161 hazardous substance sites may pose a significant threat to public health or the environment. DEC has estimated that, if it received the authority to remediate hazardous substance sites, the State’s share of the remediation costs (that portion for which the State would not be able to obtain either responsible party or federal funding) would be $252 million to $326 million.
This bill would provide DEC with the authority to address hazardous substance sites that pose a significant threat by expanding the definition of “hazardous waste” to include any hazardous substance presently defined in ECL Article 37. In order to encourage the remediation of hazardous substance sites with private funds, the bill will provide a one-year period from the effective date of the bill in which responsible parties may commit to address known hazardous substance sites under the Voluntary Cleanup Program.
Cleanup Process
This bill will result in more uniform cleanups under all of New York’s remedial programs. Cleanups will be at least as protective of public health and the environment as the current programs and can be expected to remove more contamination from the environment overall.
To provide certainty, predictability and consistency between the State’s many cleanup programs, this legislation establishes one cleanup objective for Superfund Program, Voluntary Cleanup Program, and remediations which do not constitute an immediate response cleanup under the Oil Spill Program. The bill provides that the cleanup goal be protection of public health and the environment and, at a minimum, elimination or mitigation of all significant threats to public health and the environment. For immediate response actions at oil spill sites, the cleanup goal is restoration of the environment to pre-spill conditions.
The bill provides that the current, future or reasonable anticipated land uses of a site and surrounding properties will be one of nine criteria used when considered when proposing, selecting or approving a cleanup plan. Consideration of land uses is consistent with EPA practices at federal Superfund sites.
The bill also establishes a technical advisory panel to recommend soil cleanup levels and methodologies that would be protective of public health and the environment. The panel has 18 months to provide its recommendations to DEC and the Department of Health, which would then promulgate soil cleanup standards in three categories: Category 1 would allow a site’s use to be unrestricted; Category 2 would allow a site’s current, intended or reasonably anticipated use (e.g., industrial, commercial and residential) to occur; and Category 3 would be a process to establish standards on a site-by-site basis using site-specific data that would assure standards are protective for the site’s current, intended or reasonably anticipated use.
Liability Reform
The State Superfund Program and Oil Spill Program’s current liability standards are based on the “polluter pays” principle, using a strict, joint and several liability scheme. However, these standards are widely perceived as unfair because in practice the potential exists that, even though many persons are factually responsible for the contamination of a site, only one person, even a factually innocent person, will bear the burden of paying for the cleanup. Each responsible party has a right to obtain contribution from other responsible parties, but this right can be practically valueless when the other parties who should help bear the burden are unidentifiable or without assets. The result is that prospective purchasers, developers, lenders and others often avoid any involvement with sites that are or may be contaminated since these parties would acquire liability as an owner or operator of the site.
The modifications to the liability standards contained in this bill will maintain the “polluter pays” principle. They are designed to encourage the cleanup and reuse of contaminated property through private investment. The lender liability exemption will increase the lending community’s willingness to lend money at sites that are contaminated and at facilities that may have a high risk of future contamination. The liability limitation for fiduciaries (trustees, executors, administrators, conservators, etc.) will increase the participation of fiduciaries when an estate’s assets include a site that is contaminated or that has a high risk of future contamination. It will also remove real or perceived concerns regarding the purchase of contaminated properties by fiduciaries.
The municipal liability exemption will enable municipalities to acquire title in the event of tax delinquency or similar circumstances to a contaminated site in order to exercise control over its future in the public interest, without exposing its citizens to the financial burden of remediation. This would eliminate a significant barrier to the cleanup and redevelopment of contaminated sites. The liability protection for industrial development agencies (IDAs) acting as “conduit financiers” will enable IDAs to take title to property as an accommodation to developers, for the purpose of conferring certain tax benefits to the developer, without becoming liable as an owner or operator of the property. This would have the effect of increasing development opportunities at contaminated properties.
DEC currently provides limited releases from liability to volunteers who complete the remediation of a site under the Voluntary Cleanup Program to DEC’s satisfaction. With few exceptions, responsible parties under the State Superfund Program and the Oil Spill Program currently are not provided with liability releases from DEC upon the successful completion of the remedial objectives.
Currently, if a party wants a release from liability once a site’s contamination is addressed that party must separately negotiate such a release from the DEC, the Attorney General and, in the case of sites being addressed under the Oil Spill Program, the State Comptroller (who acts as the Oil Spill Fund Administrator). It would be much more desirable if a party who remediated a site could receive one liability release binding upon the State of New York.
Under this bill, DEC would provide a covenant not to sue to a party remediating a site that would be binding on the State. DEC would be authorized to provide a covenant not to sue to parties conducting cleanups under the State Superfund Program, the Oil Spill Program, and the Voluntary Cleanup Program. Responsible parties still would not receive a liability release for natural resource damages. The reservations would be structured to provide an incentive for parties conducting remediation to remediate a site to unrestricted use soil cleanup levels (soil category 1).
The new authority provided to DEC in the bill to recover up to treble damages from recalcitrant responsible parties will create an effective incentive for such parties to come forward and finance remedial programs, thereby expediting remediation projects and reducing the need for additional State resources. This new authority would target responsible parties that are either unwilling to enter into remedial negotiations with the State, or that are acting in bad faith in the negotiations process in order to delay having to spend money on site investigations or remedial activities. It could not be applied to responsible parties that are engaged in productive, ongoing negotiations with the State.
Voluntary Cleanup Program/Brownfields
Brownfields are abandoned, idled, or under-used properties where redevelopment is complicated by real or perceived environmental contamination. They typically are former industrial or commercial properties where operations may have resulted in environmental contamination. Brownfields often pose not only environmental, but legal and financial burdens on communities. Left vacant, contaminated sites can diminish the property value of surrounding sites and threaten the economic viability of adjoining properties.
In an effort to spur the cleanup and redevelopment of brownfields, New York State has implemented the Clean Water/Clean Air Bond Act Brownfields Program and the Voluntary Cleanup Program. Each of these programs have been highly successful; however, modifications to the programs would further enable additional private sector investment in the cleanup and redevelopment of contaminated sites.
The impediments to brownfield redevelopment are complex. Some of these may be addressed administratively, and are being addressed through the Department’s Voluntary Cleanup Program. However, aspects of the barriers to brownfield redevelopment require statutory amendment. The existing liability scheme which holds all owners of contaminated property liable for cleanup costs, regardless of when or how the property was acquired relative to the contamination, contributes to the reluctance of developers to purchase even minimally contaminated sites. So, too, does the potential cost of cleanup, which may not be known at the time of purchase. In addition, lenders are often reluctant to extend credit for the purchase and cleanup of brownfield sites, fearing future liability or diminution of the value of the property held as collateral should the site prove to require more extensive and costly cleanup than initially thought. Consequently, financing such a purchase may be more difficult than financing a purchase of a greenfield site.
The voluntary investigation/remediation agreement and liability protection concepts contained in this bill, addresses the major barriers associated with redevelopment of brownfield sites. The Voluntary Cleanup Program eliminates the exposure to future open-ended cleanup costs. These measures would make brownfield sites competitive with greenfield sites. The program should encourage those not previously involved with brownfield sites to consider them for the location of new commercial, industrial, residential or public uses. It will provide assurances to financial institutions willing to lend the capital needed for redevelopment projects. It will assure that the community benefits in many meaningful respects from reuse of such sites, consistent with appropriate public health and environmental protections and with community needs, both during implementation of the remedy and redevelopment activities and in the future. It will allow volunteers to recover their costs from the site’s responsible parties. Finally, it will provide notice in the chain of title so any potential purchaser, lender, or member of the community will know what uses have been approved for the reclaimed site.
This bill is designed to remove much of the short- and long-term risk inherent in reusing a brownfield site and to encourage more private sector involvement and funding. Provisions in this bill provide an important tool in redeveloping and reclaiming our economically disadvantaged urban areas, promoting job development, impeding the sprawl of development outward into our valuable open space areas, and reducing the economic pressure of infrastructure construction on local governments.
Brownfield Redevelopment Area Program
Urban areas that are experiencing a transition from once active industry to new uses often have sizeable areas of contiguous brownfields in those former industrial areas. An area wide strategy to accommodate the environmental and redevelopment needs of the community in those areas could be more efficient than addressing each site as a separate initiative. Area wide brownfield redevelopment programs will lead to the appropriate redevelopment and reuse of brownfields as expeditiously as possible once the sites are clean. The Secretary of State would be responsible for the brownfield redevelopment area program employing the successful model created by the Local Waterfront Revitalization Program.
Part F. Sport hunting and fishing licenses. This bill increases fees for sport hunting and fishing licenses for both residents and non-residents to ensure the solvency of the Conservation Fund (Fund) and enable the Department of Environmental Conservation to continue its fish and wildlife programs at their current levels. This bill also provides for the sale of licenses through the automated license system, alters the terms and conditions of sporting licenses in response to public feedback, and establishes a voluntary habitat stamp for habitat management and improved public access to wildlife activities.
Effective October 1, 2000, this bill amends existing provisions of the Environmental Conservation Law (ECL) to:
In addition, this bill amends State Finance Law to provide that the revenue from the sale of voluntary habitat stamps shall be deposited in a new habitat sub-account within the Conservation Fund to be used for fish and wildlife habitat management and improvement of public access for hunting, fishing and trapping activities.
Environmental Conservation Law provides for resident and non-resident hunting, fishing and trapping licenses, describes the privileges of each license, and sets the fees for each license and the amounts that may be retained by the issuing officers. Current ECL also defines the general powers of DEC regarding license issuance and provides procedures for tagging harvested big game animals.
Resident license fees were last increased by Chapter 450 of the Laws of 1991, and non-resident license fees were last increased by Chapter 57 of the Laws of 1993.
The revenues from the sale of sport hunting and fishing licenses are deposited in the Conservation Fund to support the Department’s fish and wildlife programs. The Fund currently receives revenue of $32 million annually which is projected to decline with an eroding hunting population. At the same time, fish and wildlife program costs have exceeded annual revenue due to inflation and personal service cost increases, i.e. contractual increases and advancement, needed to maintain current program levels. The Fund is projected to have a negative uncommitted balance by the end of 2000-2001 and current projections show that the Fund will have a cash deficit of approximately $5 million by the end of 2001-2002 growing to more than $12 million by the end of 2002-2003. Since most revenue from the annual sale of licenses is not received until after October of any given year, the Fund will likely have a cash deficit in early SFY 2001-2002 without an increase in fee revenues during 2000-2001.
Resident sportsmen and women have not had an increase in license fees since 1991 while costs of providing a fish and wildlife program have increased annually. In addition, New York State hunting and fishing license fees are lower than neighboring states' and this proposed increase would make them, on average, more comparable. Nonresident license fees have not increased since 1993 and the proposed increases should not preclude visitors from traveling to the State to hunt and fish. The bill also increases opportunities for residents and junior licensees by enhancing privileges associated with the new super sportsman license, junior small- and big-game and archery licenses. The provision for out-of-state sale of licenses and the implementation of a new automated license system will facilitate the sale of licenses and increase revenues to the Fund. In addition, the new computer system will improve the tracking of receipts from the sale of licenses, provide on-line information to issuing officers, and notify hunters who have not renewed their annual licenses.
This bill also provides the Conservation Fund Advisory Board with additional information about anticipated Fund expenditures, consistent with the Board’s statutory responsibility to oversee the expenditures of the Fund. Finally, the bill will generate additional and dedicated funding from the sale of voluntary habitat stamps to acquire, manage and protect important fish and wildlife habitats and provide additional public access to wildlife areas to enjoy fish and wildlife-related recreational opportunities.
Part G. Forest property tax exemptions. This bill amends the Real Property Tax Law to establish a program to provide State payments to local governments that experience property tax revenue losses as a result of State forest management tax relief programs.
This bill establishes a new section 480-b of the Real Property Tax Law (RPTL) which authorizes the State to reimburse local governments which suffer a loss of greater than one percent of their property tax revenues as a result of property tax exemptions provided under sections 480 and 480-a of the RPTL. RPTL sections 480 and 480-a establish tax exempt programs for owners of land which is being devoted to forest crop production.
Although forest tax exemptions benefit both the forest landowner and the general public, they can be a fiscal burden on the local governments in which the exempted lands are located. This bill would address that issue by providing State assistance payments to those local governments which experience a greater than one percent reduction in their tax base due to such exemptions.
Part H. Environmental Protection Fund. This bill amends the Environmental Conservation Law and State Finance Law to create a new Environmental Protection Fund (EPF) program category of State Parks and Lands Infrastructure and Stewardship, expand the purposes for which the EPF can be used, and make the funding eligibility requirements for certain municipal landfill closure projects under the EPF consistent with the funding eligibility requirements of the Clean Water/Clean Air Bond Act of 1996.
Effective immediately, this bill amends the Environmental Conservation Law and State Finance Law to:
The EPF is a dedicated fund comprised of revenues from: (1) proceeds from the sale/lease of certain State lands; (2) annual service charges on conservation license plates; (3) proceeds from the settlement of a lawsuit brought by the State for an oil spill on Long Island; (4) interest earnings; and (5) $112 million annually from the Real Estate Transfer Tax (RETT).
Under existing law, the EPF may be used for the following purposes, pursuant to appropriation:
The use of the EPF for the Hudson River Park project is limited to recreational purposes only and EPF funds may not be directed to a public authority, public benefit corporation or not-for-profit corporation, including the Hudson River Park Trust, for the purpose of developing the Park.
The EPF is currently authorized to reimburse up to 75 percent of the total costs for eligible landfill closure projects in municipalities with populations of fewer than 3,500. However, the Clean Water/Clean Air Bond Act provides reimbursement for up to 90 percent for this same type of project.
Enactment of this bill will have the following benefits:
Part I. New York City Rent Administration. This bill enables the State to recover its full cost for the administration of the Rent Stabilization Law and the Emergency Tenant Protection Act (RSL/ETPA) from the City of New York.
The bill amends Section 8(c) of the Emergency Tenant Protection Act by deleting language that currently limits the Division of Housing and Community Renewal’s (DHCR) ability to recover its costs to a $10 per unit cap on the amount that DHCR may certify to New York City as reimbursable costs for DHCR’s administration of the RSL/ETPA. The State assumed administration of the New York City rent program in 1984 to provide fiscal relief to New York City. The current limit on State reimbursement from the City requires a substantial General Fund subsidy to administer the program. The City’s current fiscal condition, with its sizable surpluses, no longer warrants this State subsidy.
Of the approximately one million rent regulated units in the State, 94 percent of the units are located within New York City. There is a small number of units in Westchester, Nassau and Suffolk Counties and some upstate cities. The total cost of the statewide program is approximately $37 million, $34.5 million for New York City and $2.5 million for upstate communities. Since the State will continue to provide $2.5 million to support the upstate program, this recommendation reduces New York City’s proposed cost by a like amount. To support the $37 million program, projected fee revenues will generate approximately $11.5 million, the General Fund will continue to provide $5 million, and the remaining cost of $20.5 million will be assessed to New York City.
Part J. Funding energy efficiency and conservation programs. This bill allows the transfer of $1.5 million of Petroleum Overcharge Restitution (POCR) funds to the New York Power Authority (NYPA) to fund energy efficiency and conservation programs benefitting New York State. In return, NYPA will transfer $1.5 million to the State’s General Fund.
The bill directs that, on or before March 31, 2001:
The bill also ensures that the use of these funds does not contravene existing NYPA bond covenants or contractual obligations. The NYPA statute does not contain authorization to accomplish this fund transfer. Similar bills concerning POCR funds were enacted in 1995, 1996, 1997, 1998 and 1999 for $34 million, $9 million, $8 million, $2.2 million and $3 million, respectively. POCR funds became available to New York State in the 1980s as a result of Federal court settlements with energy producers who were overcharging consumers.
This bill allows these moneys to be expended on energy efficiency and conservation purposes which will benefit New York State consumers. In addition, the State will realize additional revenue as a result of this transaction.
Part K. Motor carrier fees. This bill allows fees and charges collected by the Department of Transportation to be deposited in the miscellaneous special revenue fund - transportation regulation account on a permanent basis.
Section 94 of the Transportation Law requires that these funds be deposited in the General Fund. The 1999-2000 enacted Budget authorized the deposit of fees and charges into the miscellaneous special revenue fund - transportation regulation account through March 31, 2000. This provision has been extended annually since 1996-97.This bill permanently authorizes the deposit of fees and charges into the transportation regulation account, thus eliminating the need for annual extension of the provision.
Part L. Funding for State and local highways and bridges. The bill authorizes the Governor’s new five-year transportation plan by increasing Thruway Authority bond caps, authorizing the CHIPS and Marchiselli programs for State Fiscal Year 2000-01, and scheduling CHIPS and Marchiselli program levels for the five years of the plan.
The bill increases the bond cap for Dedicated Highway and Bridge Trust Fund bonds issued by the Thruway Authority, on behalf of the State, by amending section 385 of the Public Authorities Law to increase the cap from $4.75 billion to $10.25 billion. The bill increases the bond cap for Local Highway and Bridge Service Contract bonds issued by the Thruway Authority for the Consolidated Local Street and Highway Improvement (CHIPS) and Marchiselli programs by amending Chapter 637 of the Laws of 1996 to increase the cap from $2,499.55 million to $3,787.55 million.
The bill authorizes the CHIPS and Marchiselli programs for State Fiscal Year 2000-01 at $217.9 million and $39.7 million, respectively. In addition, it schedules the CHIPS and Marchiselli program levels for State Fiscal Years 2001-02 through 2004-05.
The current five-year transportation plan was authorized in 1996 for State Fiscal Years 1995-96 through 1999-2000.The current five-year transportation plan expires on March 31, 2000. This bill is necessary to implement the financial components of the Governor’s 2000-01 through 2004-05 plan.
BUDGET IMPLICATIONS:
Part A authorizes the Dormitory Authority to provide up to $1.2 million to Cornell University for operation of the Cornell Theory Center.
Part B provides Section 18-a moneys needed for NYSERDA to carry out its statutory mission.
Part C ensures fee revenues of $50,000 to support DEC’s shellfish program.
Part D governs the selection of projects to be funded from the $222 million in new Bond Act appropriations and the reappropriations recommended for 2000-01. Any costs incurred by DEC associated with reporting and promulgation of rules, regulations, project selection and ranking criteria required by this bill can be accommodated within appropriations included in the 2000-01 Executive Budget.
Part E is necessary to implement the 2000-01 Executive Budget as it provides an estimated $138 million annually in revenue from existing and new revenue sources. Of this, $31.4 million in new fees are proposed. The bill also provides that the General Fund will match the amount of special revenues generated to support the remedial programs, estimated in state fiscal year 2001-02 to be $69 million. The bill also provides a new brownfields tax credit which is estimated to cost $23 million annually on average over the next nine years.
Part F increases fees to ensure adequate funding for activities supported by the Conservation Fund. Absent a fee increase, a reduction in program expenditures would be necessary in 2000-2001 to avoid a cash deficit in early 2001-2002. Alternatively, a General Fund deficiency of up to $5 million could be required by the end of 2000-2001 to avoid a cash deficit in 2001-2002.
Part G provides the statutory authorization for a recommended appropriation of $3.3 million from the Environmental Protection Fund to support the State assistance payments related to forest tax exemptions.
Part H authorizes the use of the Environmental Protection Fund to support State parks and lands infrastructure and stewardship projects, the Hudson River Park, the Hudson River Estuary and other important environmental efforts and establishes the Hudson River Estuary Account.
Part I provides $20.5 million in General Fund savings and is necessary to maintain balance in the 2000-2001 Financial Plan.
Part J ensures $1.5 million in additional revenue through the exchange of Petroleum Overcharge Restitution funds for New York Power Authority corporate revenues.
Part K authorizes the deposit of fees to support spending from the miscellaneous special revenue fund - transportation regulation account.
Part L is necessary to implement the financial components of the new five-year transportation plan, including the 2000-01 Executive Budget portion of that plan.
EFFECTIVE DATE:
This bill takes effect April 1, 2000 except that Parts C, G and H take effect immediately, and Part F takes effect October 1, 2000. Furthermore, Part E bill will take effect immediately, provided that sections 29, 30, 34, 35, 36, and 37 will take effect on April 1, 2001; sections 39, 40, 41, 42, 43, 48 and 49 will apply to taxable years beginning on or after January 1, 2000 and section 42-a will apply to taxable years beginning on or after January 1, 2001, but only to site costs incurred and property placed in service after the date this act will become law; and subdivisions 13 and 14 of section 97-b of the State Finance Law, as designated in section 29 of Part E, will be repealed effective April 1 of the State fiscal year following the certification provided for in subdivision 15.