RETRIEVE BILL Health MHEC - 0102
Legislative Bill Drafting Commission
12021-01-1
S. --------
SENATE
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IN SENATE--Introduced by Sen
--read twice and ordered printed,
and when printed to be committed
to the Committee on
-------- A.
ASSEMBLY
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IN ASSEMBLY--Introduced by M. of A.
--read once and referred to the
Committee on
*BUDGBI*
(Enacts provisions of law to imple-
ment the 2001 - 2002 health, mental
hygiene and environmental conserva-
tion budget pursuant to Article 7 of
the Constitution)
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Art 7: health, ment hyg, en con
AN ACT
to amend the environmental conserva-
tion 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 hazard-
ous waste disposal sites and the
cleanup and removal of petroleum
discharges, and to repeal section
27-1316 of the environmental conser-
vation law and section 1389-e of the
public health law relating thereto;
2 12021-01-1
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; to amend the tax law, in
relation to tax credits for brown-
field redevelopment and for the
development of remediated brown-
fields, and providing for the repeal
of certain provisions of the state
finance law upon certification
provided by subdivision 15 of
section 97-b of such law (A); to
amend the environmental conservation
law and the state finance law, in
relation to requirements for envi-
ronmental restoration projects (B);
to amend the state finance law, the
environmental conservation law and
the tax law, in relation to the
environmental protection fund, and
repealing subdivision 7 of section
92-s of the state finance law relat-
ing to the application of certain
state assistance payments (C); to
amend the environmental conservation
law, in relation to the revision of
pesticides applicator certification
fees (D); to amend the environmental
conservation law and the state
finance law, in relation to hunting
and fishing licenses, and to repeal
certain provisions of the environ-
mental conservation law related
thereto (E); to amend the environ-
mental conservation law, in relation
to surf clams and ocean quahogs (F);
to amend the real property tax law,
in relation to reimbursing locali-
ties for tax revenue losses (G); to
amend the parks, recreation and
historic preservation law and the
vehicle and traffic law, in relation
to snowmobile fees and trails (H);
to amend the vehicle and traffic
law, in relation to increasing the
triennial fee for registration of a
vessel (I); to amend chapter 2 of
the laws of 1998, amending the
public health law, the social
services law and the insurance law
relating to expanding the child
health insurance plan, in relation
to extending the provisions thereof;
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chapter 474 of the laws of 1996,
amending the education law and other
laws relating to rates for residen-
tial health care facilities, in
relation to extending the effective-
ness of such rates; the social
services law, in relation to expand-
ing Medicaid coverage; the public
health law, in relation to rates of
payment for residential health care
facilities; chapter 483 of the laws
of 1978, amending the public health
law relating to rates of payment for
residential health care facilities,
in relation to making the provisions
thereof permanent; chapter 904 of
the laws of 1984, amending the
public health law and the social
services law relating to encouraging
comprehensive health services, in
relation to extending the provisions
thereof (J); to amend the executive
law, in relation to the program for
elderly pharmaceutical insurance
coverage (K); to amend the public
health law, in relation to the
establishment of a quality of care
improvement fund account for the
benefit of residential health care
facilities (L); to amend chapter 170
of the laws of 1994 amending the
executive law relating to creating a
naturally occurring retirement
community supportive service program
and providing for the repeal of such
provisions upon expiration thereof,
in relation to extending until
December 31, 2003 the effectiveness
of certain legislative findings and
section 536-g of the executive law
relating to the creation of such
program (M); to amend the mental
hygiene law, in relation to the
reinvestment of funds into communi-
ty-based programs for persons with
serious mental illness, including
children and adolescents with seri-
ous emotional disturbances, based
upon inpatient bed closures and the
re-location or closure of state-op-
erated psychiatric centers; to
provide community mental health
support and workforce reinvestment
by redirecting state savings to fund
fee increases and cost of living
4 12021-01-1
adjustments for certain existing
community-based mental health
services; to establish certain
state-operated services; to transi-
tion the resources for shared staff
services to the local auspices; to
provide for the repeal of certain
provisions upon expiration thereof
(N); and to amend the mental hygiene
law, in relation to eliminating the
Taconic Developmental Disabilities
Services Office (O)
The People of the State of New
York, represented in Senate and
Assembly, do enact as follows:
5 12021-01-1
1 Section 1. This act enacts into law major components of legislation
2 which are necessary to implement the state fiscal plan for the 2001-2002
3 state fiscal year. Each component is wholly contained within a Part
4 identified as Parts A through O. 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. Subdivision 2 of section 17-1009 of the environmental
14 conservation law, as amended by chapter 83 of the laws of 1995, is
15 amended to read as follows:
16 2. All owners shall register the facility with the department. The
17 department is authorized to assess a fee according to a schedule based
18 on the size and type of facility, not to exceed two hundred fifty
19 dollars per facility. Such fee shall be paid at the time of registration
20 or registration renewal. Registration shall be renewed every five years
21 or whenever title to a facility is transferred, whichever occurs first.
22 All fees collected pursuant to this subdivision shall be deposited in
23 the New York environmental protection and spill compensation fund estab-
24 lished pursuant to section one hundred seventy-nine of the navigation
25 law. The department may waive payment of the registration fee for a
6 12021-01-1
1 facility at which the tanks are to be removed or otherwise permanently
2 taken out of service and the facility is the subject of:
3 (a) An "environmental restoration project," as such term is defined in
4 subdivision seven of section 56-0101 of this chapter, implemented by a
5 municipality, the cost of which is payable in part by the state pursuant
6 to a contract authorized by section 56-0503 of this chapter;
7 (b) An "inactive hazardous waste disposal site remedial program," as
8 such term is defined in subdivision three of section 27-1301 of this
9 chapter, implemented by the department, the cost of which is paid by the
10 state according to statute;
11 (c) A "hazardous waste site remediation project," as such term is
12 defined in subdivision nine of section 52-0101 of this chapter, imple-
13 mented by a municipality, the cost of which is payable in part by the
14 state pursuant to a contract authorized by section 52-0303 of this chap-
15 ter;
16 (d) Any remediation implemented pursuant to an order or agreement with
17 the department by any person who is not responsible for the disposal of
18 hazardous waste or the discharge of petroleum according to applicable
19 principles of statutory or common law liability, or who is liable solely
20 as a result of ownership or operation of the facility subsequent to the
21 disposal of hazardous waste or the discharge of petroleum; or
22 (e) Any "cleanup and removal," as such term is defined in subdivision
23 four of section one hundred seventy-two of the navigation law, imple-
24 mented by the department, the cost of which is paid by the state accord-
25 ing to statute.
26 § 2. Subdivision 3 of section 27-0923 of the environmental conserva-
27 tion law, as added by chapter 38 of the laws of 1985, paragraph d as
7 12021-01-1
1 added by chapter 512 of the laws of 1986 and paragraph e as added by
2 chapter 423 of the laws of 1990, is amended to read as follows:
3 3. a. Notwithstanding any provision of this section to the contrary,
4 no special assessment shall be imposed under this section on the
5 resource recovery of any hazardous waste; provided, however, that any
6 materials remaining from resource recovery which are hazardous wastes
7 and which are subsequently disposed of, treated, or incinerated, shall
8 be subject to the special assessments imposed by this section. For
9 purposes of this section, resource recovery shall not include the
10 removal of water from a hazardous waste.
11 b. In the case of a fraction of a ton, the special assessments imposed
12 by this section shall be the same fraction of the amount of such special
13 assessment imposed on a whole ton.
14 c. For the purpose of this section, generation of hazardous waste
15 shall not include retrieval or creation of hazardous waste which must be
16 disposed of due to remediation of an inactive hazardous waste disposal
17 site in New York state as defined in section 27-1301 of this chapter
18 under an order of or agreement with the department pursuant to title
19 thirteen or title fourteen of this article, or under a contract with the
20 department pursuant to title five of article fifty-six of this chapter.
21 d. No portion of the special assessments collected pursuant to this
22 section shall be used for any purpose if such use, under federal law,
23 would preclude the collection of such special assessment.
24 e. Notwithstanding any provision of this section to the contrary, the
25 actual method utilized to dispose of or treat any hazardous waste shall
26 govern the determination of the rate per ton applicable under the
27 special assessments imposed by this section, even if such hazardous
28 waste was designated for removal, removed, stored or received for
8 12021-01-1
1 disposal or treatment by a method different than the method actually
2 utilized. Where any such special assessment with respect to any hazard-
3 ous waste is reported and paid on the basis of a rate per ton which is
4 greater than the rate per ton applicable to the actual method utilized
5 to dispose of or treat such hazardous waste, the difference between the
6 amount reported and paid and the amount due using the rate per ton
7 applicable to the actual method utilized shall be considered an overpay-
8 ment of such special assessment. The commissioner of taxation and
9 finance shall credit or refund such overpayment in the manner provided
10 and subject to the conditions contained in article twenty-seven of the
11 tax law, as incorporated by subdivision six of this section.
12 § 3. Subdivisions 1, 3 and 4 of section 27-1301 of the environmental
13 conservation law, subdivision 1 as amended by chapter 857 of the laws of
14 1982 and subdivisions 3 and 4 as added by chapter 282 of the laws of
15 1979, are amended to read as follows:
16 1. "Hazardous waste" means a waste which appears on the list or satis-
17 fies the characteristics promulgated by the commissioner pursuant to
18 section 27-0903 of this chapter and, until, but not after, the promul-
19 gation of such list, a waste or combination of wastes, which because of
20 its quantity, concentration, or physical, chemical or infectious charac-
21 teristics may:
22 a. Cause, or significantly contribute to an increase in mortality or
23 an increase in serious irreversible or incapacitating reversible
24 illness; or
25 b. Pose a substantial present or potential hazard to human health or
26 the environment when improperly treated, stored, transported, disposed
27 or otherwise managed article and any substance which appears on the
9 12021-01-1
1 list promulgated pursuant to section 37-0103 of this chapter; provided,
2 however, that the term "hazardous waste" does not include:
3 a. Natural gas, natural gas liquids, liquefied natural gas, synthetic
4 gas usable for fuel, or mixtures of natural gas and such synthetic gas;
5 nor
6 b. The residue of emissions from the engine exhaust of a motor vehi-
7 cle, rolling stock, aircraft, vessel, or pipeline pumping station
8 engine; nor
9 c. Source, byproduct, or special nuclear material from a nuclear inci-
10 dent, as those terms are defined in the Atomic Energy Act of 1954, if
11 such release is subject to requirements with respect to financial
12 protection established under section 170 of such act (42 U.S.C. 2210)
13 or, for the purpose of section 104 of the comprehensive environmental
14 response, compensation and liability act of 1980 (42 U.S.C. 9604) or any
15 other response action, any source, byproduct, or special nuclear materi-
16 al from any processing site designated under section 102(a)(1) or 302(a)
17 of the Uranium Mill Tailings Radiation Control Act of 1978 (42 U.S.C.
18 7912(a)(1) or 7942(a)); nor
19 d. Petroleum as defined in section one hundred seventy-two of the
20 navigation law, even if appearing on the list promulgated pursuant to
21 section 37-0103 of this chapter.
22 3. "Inactive hazardous waste disposal site remedial program" means
23 activities undertaken to eliminate, remove, abate, control or monitor
24 health and/or environmental hazards or potential hazards in connection
25 with inactive hazardous waste disposal sites or to treat or dispose of
26 wastes and waste contaminated materials from such sites including, but
27 not limited to, grading, contouring, trenching, grouting, capping, exca-
28 vation, transporting, incineration, chemical treatment, biological
10 12021-01-1
1 treatment or construction of leachate collection and treatment facili-
2 ties. The department may include institutional controls and/or engi-
3 neering controls as components of an inactive hazardous waste disposal
4 site remedial program but only if the owner of such real property annu-
5 ally submits to the department a written statement certifying under
6 penalty of perjury that the institutional controls and engineering
7 controls employed to remediate such contamination are unchanged from the
8 previous certification and that nothing has occurred that would consti-
9 tute a violation of any of such controls, and gives access to such real
10 property reasonable under the circumstances to evaluate continued main-
11 tenance of such controls. The department shall establish and maintain a
12 database with relevant information on such controls and shall make such
13 information available for public inspection at the office of the county
14 clerk or register for each county and at the office of the town clerk
15 for each town in Suffolk and Nassau counties.
16 4. "Person" means an individual, trust, firm, joint stock company,
17 corporation, partnership, association, state, municipality, commission,
18 political subdivision of a state, public benefit corporation or any
19 interstate body.
20 a. Such term includes any person owning or operating an inactive
21 hazardous waste disposal site but does not include a person that is a
22 lender that, without participating in the management of such site, holds
23 indicia of ownership primarily to protect the security interest of the
24 person in such site; nor does it include a person that is a lender that
25 did not participate in management of such site prior to foreclosure,
26 notwithstanding that the person forecloses on such site and after fore-
27 closure, sells, re-leases (in the case of a lease finance transaction),
28 or liquidates such site, maintains business activities, winds up oper-
11 12021-01-1
1 ations, undertakes in a non-negligent manner remedial actions under the
2 direction of the department, with respect to such site, or takes any
3 other measure to preserve, protect, or prepare such site prior to sale
4 or disposition, if the person seeks to sell, re-lease (in the case of a
5 lease finance transaction), or otherwise divest the person of such site
6 at the earliest practicable commercially reasonable time, on commercial-
7 ly reasonable terms, taking into account market conditions and legal and
8 regulatory requirements. For purposes of this paragraph:
9 (i) the term "participate in management" means actually participating
10 in the management or operational affairs of such site; and does not
11 include merely having the capacity to influence, or the unexercised
12 right to control, such site's operations;
13 (ii) a person that is a lender and that holds indicia of ownership
14 primarily to protect a security interest in such site shall be consid-
15 ered to participate in management only if, while the borrower is still
16 in possession of such site, the person exercises decisionmaking control
17 over the environmental compliance related to such site, such that the
18 person has undertaken responsibility for the hazardous waste handling or
19 disposal practices related to such site; or exercises control at a level
20 comparable to that of a manager of such site, such that the person has
21 assumed or manifested responsibility for the overall management of such
22 site encompassing day-to-day decisionmaking with respect to environ-
23 mental compliance; or over all or substantially all of the operational
24 functions (as distinguished from financial or administrative functions)
25 of such site other than the function of environmental compliance;
26 (iii) the term "participate in management" does not include performing
27 an act or failing to act prior to the time at which a security interest
28 is created in such site;
12 12021-01-1
1 (iv) the term "participate in management" does not include holding a
2 security interest or abandoning or releasing a security interest;
3 including in the terms of an extension of credit, or in a contract or
4 security agreement relating to the extension, a covenant, warranty, or
5 other term or condition that relates to environmental compliance; moni-
6 toring or enforcing the terms and conditions of the extension of credit
7 or security interest; monitoring or undertaking one or more inspections
8 of such site; requiring a response action or other lawful means of
9 addressing the release or threatened release of a hazardous waste in
10 connection with such site prior to, during, or on the expiration of the
11 term of the extension of credit; providing financial or other advice or
12 counseling in an effort to mitigate, prevent, or cure default or diminu-
13 tion in the value of such site; restructuring, renegotiating, or other-
14 wise agreeing to alter the terms and conditions of the extension of
15 credit or security interest; exercising forbearance; exercising other
16 remedies that may be available under applicable law for the breach of a
17 term or condition of the extension of credit or security agreement; or
18 conducting in a non-negligent manner a remedial action directly or under
19 the direction of the department, if the actions do not rise to the level
20 of participating in management (within the meaning of subparagraphs (i)
21 and (ii) of this paragraph);
22 (v) the term "extension of credit" includes a lease finance trans-
23 action in which the lessor does not initially select such leased site
24 and does not during the lease term control the daily operations or main-
25 tenance of such site; or that conforms with regulations issued by the
26 appropriate federal banking agency (as defined in 12 USC section 1813)
27 or the superintendent of banks or with regulations issued by the
28 National Credit Union Administrative Board, as appropriate;
13 12021-01-1
1 (vi) the term "financial or administrative function" includes a func-
2 tion such as that of a credit manager, accounts payable officer,
3 accounts receivable officer, personnel manager, comptroller, or chief
4 financial officer, or a similar function;
5 (vii) the terms "foreclosure" and "foreclose" mean, respectively,
6 acquiring and to acquire, such site through purchase at sale under a
7 judgment or decree, power of sale, or nonjudicial foreclosure sale; a
8 deed in lieu of foreclosure, or similar conveyance from a trustee; or
9 repossession, if such site was security for an extension of credit
10 previously contracted; conveyance pursuant to an extension of credit
11 previously contracted, including the termination of a lease agreement;
12 or any other formal or informal manner by which the person acquires, for
13 subsequent disposition, title to or possession of such site in order to
14 protect the security interest of the person;
15 (viii) the term "lender" means an insured depository institution (as
16 defined in 12 USC Section 1813); an insured credit union (as defined in
17 12 USC section 1752); a bank or association chartered under the Farm
18 Credit Act of 1971 (12 U.S.C. 2001 et seq.); a leasing or trust company
19 that is an affiliate of an insured depository institution; any person
20 (including a successor or assignee of any such person) that makes a bona
21 fide extension of credit to or takes or acquires a security interest
22 from a nonaffiliated person; the Federal National Mortgage Association,
23 the Federal Home Loan Mortgage Corporation, the Federal Agricultural
24 Mortgage Corporation, or any other entity that in a bona fide manner
25 buys or sells loans or interests in loans; a person that insures or
26 guarantees against a default in the repayment of an extension of credit,
27 or acts as a surety with respect to an extension of credit, to a nonaf-
28 filiated person; and a person that provides title insurance and that
14 12021-01-1
1 acquires such site as a result of assignment or conveyance in the course
2 of underwriting claims and claims settlement;
3 (ix) the term "operational function" includes a function such as that
4 of a facility or plant manager, operations manager, chief operating
5 officer, or chief executive officer; and
6 (x) the term "security interest" includes a right under a mortgage,
7 deed of trust, assignment, judgment lien, pledge, security agreement,
8 factoring agreement, or lease and any other right accruing to a person
9 to secure the repayment of money, the performance of a duty, or any
10 other obligation by a nonaffiliated person.
11 b. Such term includes any person owning or operating an inactive
12 hazardous waste disposal site but does not include the state of New York
13 or a public corporation which acquired, and thereafter retained without
14 participating in the management of such site, ownership or control
15 involuntarily by virtue of its function as sovereign. Neither the state
16 of New York nor any public corporation shall incur under this chapter
17 any liability as to matters within the jurisdiction of the department as
18 a result of actions taken in response to an emergency created by the
19 release or threatened release of hazardous waste by another person,
20 provided that such actions by the state or public corporation did not
21 constitute reckless, willful, wanton or intentional misconduct. As used
22 in this paragraph:
23 (i) "public corporation" means a public corporation as defined in the
24 general construction law;
25 (ii) involuntary acquisition of ownership or control includes, but is
26 not limited to, the following:
27 (A) acquisitions by the state or a public corporation in its capacity
28 as sovereign, including acquisitions pursuant to abandonment
15 12021-01-1
1 proceedings, or escheat, or any other circumstance of involuntary acqui-
2 sition in its capacity as sovereign;
3 (B) acquisitions by the state or a public corporation, or its agent,
4 acting as a conservator or receiver pursuant to a clear and direct stat-
5 utory mandate or regulatory authority;
6 (C) acquisitions of assets through foreclosure and its equivalents, or
7 otherwise, by the state or a public corporation in the course of admin-
8 istering a loan, loan guarantee or loan insurance program;
9 (D) acquisitions by the state or a public corporation pursuant to
10 seizure or forfeiture authority; and
11 (E) acquisitions by the state or a public corporation as the result of
12 tax delinquency proceedings, provided, that such ownership or control is
13 not retained primarily for investment purposes;
14 (iii) "management participation" means that the state or public corpo-
15 ration is actually participating in the management or operation of the
16 property but does not include the mere capacity to influence, ability to
17 influence or unexercised right to control the operation of the proper-
18 ty.
19 Nothing contained in this paragraph affects the applicability of para-
20 graph a of this subdivision in favor of a holder of a security interest
21 according to the terms thereof.
22 c. Such term includes any person owning or operating an inactive
23 hazardous waste disposal site, including a fiduciary; provided, however,
24 that such liability on the part of a fiduciary shall not exceed the
25 assets held in the fiduciary capacity if such person is not liable inde-
26 pendently of such person's ownership as a fiduciary or actions taken in
27 a fiduciary capacity including, but not limited to, the fiduciary negli-
16 12021-01-1
1 gently causing or contributing to the release or threatened release of
2 hazardous waste at such site.
3 (i) For purposes of this paragraph:
4 (A) the term "fiduciary" means a person acting for the benefit of
5 another party as a bona fide trustee; executor; administrator; custo-
6 dian; guardian of estates or guardian ad litem; receiver; conservator;
7 committee of estates of incapacitated person; personal representative;
8 trustee (including a successor to a trustee) under an indenture agree-
9 ment, trust agreement, lease, or similar financing agreement, for debt
10 securities, certificates of interest or certificates of participation in
11 debt securities, or other forms of indebtedness as to which the trustee
12 is not, in the capacity of trustee, the lender; or representative in any
13 other capacity that the department, after providing public notice,
14 determines to be similar to the various capacities previously described
15 in this paragraph; and does not include either a person that is acting
16 as a fiduciary with respect to a trust or other fiduciary estate that
17 was organized for the primary purpose of, or is engaged in, actively
18 carrying on a trade or business for profit unless the trust or other
19 fiduciary estate was created as part of, or to facilitate, one or more
20 estate plans or because of the incapacity of a natural person or a
21 person that acquires ownership or control of a property with the objec-
22 tive purpose of avoiding liability of the person or any other person.
23 (B) the term "fiduciary capacity" means the capacity of a person in
24 holding title to a property, or otherwise having control of or an inter-
25 est in a property, pursuant to the exercise of the responsibilities of
26 the person as a fiduciary.
27 (ii) Nothing in this paragraph affects the rights or immunities or
28 other defenses that are available under law that are applicable to a
17 12021-01-1
1 person subject to this subdivision; or creates any liability for a
2 person or a private right of action against a fiduciary or any other
3 person.
4 (iii) Nothing in this paragraph applies to a person if that person
5 acts in a capacity other than that of a fiduciary or in a beneficiary
6 capacity and in that capacity, directly or indirectly benefits from a
7 trust or fiduciary relationship; or is a beneficiary and a fiduciary
8 with respect to the same fiduciary estate and as a fiduciary, receives
9 benefits that exceed customary or reasonable compensation, and inci-
10 dental benefits, permitted under other applicable law.
11 (iv) This paragraph does not preclude a claim under this chapter
12 against the assets of the estate or trust administered by the fiduciary;
13 or a nonemployee agent or independent contractor retained by a fiduci-
14 ary.
15 d. Such term includes any person owning or operating an inactive
16 hazardous waste disposal site, including an industrial development agen-
17 cy created under the general municipal law, other than one that holds
18 bare legal title to such site; has not participated with any party
19 responsible under law for the remediation of contamination in, on, or
20 from such site to attempt to have such a party avoid its remedial
21 liability; has not exercised any contractual rights it may have or had,
22 if any, under the lease, guarantee, or any other financing agreement
23 pursuant to which the industrial development agency would assume control
24 over the actual operation of the site; and has not taken possession or
25 control of the site. Nothing in this paragraph affects the rights or
26 immunities or other defenses that are available under law that are
27 applicable to an industrial development agency; or creates any liability
18 12021-01-1
1 for a person or a private right of action against an industrial develop-
2 ment agency or any other person.
3 § 4. Subdivision 1 of section 27-1303 of the environmental conserva-
4 tion law, as added by chapter 282 of the laws of 1979, is amended to
5 read as follows:
6 1. Each a. For a period of one year after the effective date of
7 the chapter of the laws of two thousand one amending this subdivision,
8 each county shall, for the purpose of locating inactive hazardous waste
9 disposal sites as that term was defined on January first, two thousand
10 one, survey its jurisdiction to determine the existence and location of
11 suspected inactive hazardous waste disposal sites and shall , within
12 four months of the effective date of this title, annually thereafter
13 submit a report to the department describing the location of each such
14 suspected site and the reasons for such suspicion.
15 b. Commencing one year after the effective date of the chapter of the
16 laws of two thousand one which added this paragraph, each county shall,
17 for the purpose of locating inactive hazardous waste disposal sites,
18 survey its jurisdiction to determine the existence and location of
19 suspected inactive hazardous waste disposal sites and shall annually
20 thereafter submit a report to the department describing the location of
21 each such suspected site and the reasons for such suspicion.
22 § 5. Paragraph b of subdivision 4 of section 27-1305 of the environ-
23 mental conservation law, as amended by chapter 857 of the laws of 1982
24 and the opening paragraph as amended by chapter 649 of the laws of 1988,
25 is amended to read as follows:
26 b. The department shall, as part of the registry, assess and, based
27 upon new information received, reassess by March thirty-first of each
28 year, in cooperation with the department of health, the relative need
19 12021-01-1
1 for action at each site to remedy environmental and health problems
2 resulting from the presence of hazardous wastes at such sites; provided,
3 however, that if at the time of such assessment or reassessment, the
4 department has not placed a site in classification 1 or 2, as described
5 in subparagraphs one and two of this paragraph, and such site is the
6 subject of negotiations for, or implementation of, a voluntary agreement
7 pursuant to title fourteen of this article, obligating the person
8 subject to such agreement to, at a minimum, eliminate or mitigate all
9 significant threats to the public health and environment posed by the
10 hazardous waste pursuant to such agreement, the department shall defer
11 its assessment or reassessment during the period such person is engaged
12 in good faith negotiations to enter into such an agreement and, follow-
13 ing its execution, is in compliance with the terms of such agreement and
14 shall assess or reassess such site upon completion of remediation to the
15 department's satisfaction. In making its assessments, the department
16 shall place every site in one of the following classifications:
17 (1) Causing or presenting an imminent danger of causing irreversible
18 or irreparable damage to the public health or environment--immediate
19 action required;
20 (2) Significant threat to the public health or environment--action
21 required;
22 (3) Does not present a significant threat to the public health or
23 environment--action may be deferred;
24 (4) Site properly closed--requires continued management;
25 (5) Site properly closed, no evidence of present or potential adverse
26 impact--no further action required.
20 12021-01-1
1 § 6. The opening paragraph of subdivision 5 of section 27-1305 of the
2 environmental conservation law, as added by chapter 857 of the laws of
3 1982, is amended to read as follows:
4 The department shall , as soon as possible but in no event later than
5 January first, nineteen hundred eighty-four, annually prepare and
6 submit in writing a an updated "state inactive hazardous waste remedi-
7 al plan," hereinafter referred to as "the plan" to the state superfund
8 management board. Such board shall then approve of the plan or make such
9 modification as it is empowered to do pursuant to section 27-1319 of
10 this chapter and submit the approved plan or modified plan , to the
11 governor and the legislature on or before March first, nineteen hundred
12 eighty-four July first of each year. In proposing, preparing and
13 compiling and updating the plan, the department shall:
14 § 7. Subdivisions 3, 4 and 5 of section 27-1309 of the environmental
15 conservation law, as amended by chapter 857 of the laws of 1982, are
16 amended to read as follows:
17 3. Any duly designated officer or employee of the department, or of
18 any state agency, and any agent, consultant, contractor or other person,
19 including an employee, agent, consultant or contractor of a responsible
20 person acting at the direction of the department, so authorized in writ-
21 ing by the commissioner, may enter any inactive hazardous waste disposal
22 site and areas near such site and inspect and take samples of wastes,
23 soils, air, surface water and groundwater. In order to take such
24 samples, the department or authorized person may utilize or cause to be
25 utilized such sampling methods as it determines to be necessary includ-
26 ing, but not limited to, soil borings and monitoring wells.
27 4. The department or authorized person shall not take any samples,
28 involving the substantial disturbance of the ground surface of any prop-
21 12021-01-1
1 erty unless it has made a reasonable effort to identify the owner of the
2 property and to notify such owner of the department's intent to take
3 such samples. If the owner can be identified, the department shall
4 provide such owner with a minimum of ten days written notice of its
5 the intent to take such samples unless the commissioner makes a written
6 determination that such ten day notice will not allow the department to
7 protect the environment or public health, in which case two days written
8 notice shall be sufficient. Any inspection of the property and each such
9 taking of samples shall take place at reasonable times and shall be
10 commenced and completed with reasonable promptness. If any officer,
11 employee, agent, consultant, contractor, or other person so authorized
12 in writing by the commissioner obtains any samples prior to leaving the
13 premises he shall give to the owner or operator a receipt describing the
14 sample obtained and, if requested, a portion of such sample equal in
15 volume or weight to the portion retained. If any analysis is made of
16 such samples, a copy of the results of such analysis shall be furnished
17 promptly to the owner or operator. Upon the completion of all sampling
18 activities, the department or authorized person shall remove, or cause
19 to be removed, all equipment and well machinery and return the ground
20 surface of the property to its condition prior to such sampling unless
21 the department or authorized person and the owner of property shall
22 otherwise agree.
23 5. The expense of any such sampling and analysis shall be paid by the
24 department, but may be recovered from any responsible person in any
25 action or proceeding brought pursuant to this title or common law;
26 provided, that if the person so authorized in writing shall be an
27 employee, agent, consultant or contractor of a responsible person acting
22 12021-01-1
1 at the direction of the department, then the expense of any such sampl-
2 ing and analysis shall be paid by the responsible person.
3 § 8. Paragraph b of subdivision 1 of section 27-1313 of the environ-
4 mental conservation law is relettered paragraph c and a new paragraph b
5 is added to read as follows:
6 b. The department shall have the authority to require the development
7 and implementation of a department-approved inactive hazardous waste
8 disposal site remedial program; provided, however, that the department
9 will use the following in developing and implementing such remedial
10 program:
11 (i) The objective of such remedial program shall be the protection of
12 the public health and environment, with the minimum objective being to
13 eliminate or mitigate all significant threats to the public health and
14 environment presented by hazardous waste through proper application of
15 scientific and engineering principles and such remedial program must be
16 selected upon due consideration of the following factors:
17 (A) conformance to standards and criteria that are generally applica-
18 ble, consistently applied, and officially promulgated, that are either
19 directly applicable, or that are not directly applicable but are rele-
20 vant and appropriate, unless good cause exists why conformity should be
21 dispensed with, and with consideration being given to guidance deter-
22 mined, after the exercise of engineering judgment, to be applicable;
23 (B) overall protectiveness of the public health and environment;
24 (C) short-term effectiveness;
25 (D) long-term effectiveness;
26 (E) reduction of toxicity, mobility, and volume with treatment;
27 addressing a hot spot of hazardous waste that permanently and signif-
28 icantly reduces the volume, toxicity, and/or mobility of hazardous waste
23 12021-01-1
1 is to be preferred over a method that does not do so. The hierarchy of
2 remedial technologies shall be as set forth under section 27-0105 of
3 this article;
4 (F) cost;
5 (G) implementability;
6 (H) community acceptance; and
7 (I) land use: the current, intended, and reasonably anticipated future
8 land uses for the property and its surroundings, if ascertainable.
9 (ii) Notwithstanding anything to the contrary in this paragraph, at
10 sites listed pursuant to section 27-1305 of this title as classification
11 1 or 2, there shall be a presumption for soil remediation to soil cate-
12 gory 2 for residential purposes pursuant to section 27-1316 of this
13 title where such remediation is conducted by a person responsible
14 according to applicable principles of statutory or common law liability
15 at a site that is not in active use for industrial or commercial uses
16 and is adjacent to residential uses. This presumption may be overcome by
17 written findings of the commissioner after an opportunity for citizen
18 participation consistent with this title.
19 § 9. Paragraph a of subdivision 3 and subdivisions 4 and 8 of section
20 27-1313 of the environmental conservation law, paragraph a of subdivi-
21 sion 3 as amended and subdivision 8 as added by chapter 857 of the laws
22 of 1982 and subdivision 4 as added by chapter 282 of the laws of 1979,
23 are amended to read as follows:
24 a. Whenever the commissioner finds that hazardous wastes at an inac-
25 tive hazardous waste disposal site constitute a significant threat to
26 the environment, he may: (i) order the owner of such site and/or any
27 person responsible for the disposal of hazardous wastes at such site
28 (i) to develop an inactive hazardous waste disposal site remedial
24 12021-01-1
1 program, subject to the approval of the department, at such site, and
2 (ii) to implement such program within reasonable time limits specified
3 in the order; or (ii) develop and implement a remedial program for such
4 site after a reasonable, but unsuccessful, attempt to obtain the consent
5 of the owner and/or any person responsible to the issuance of an order
6 to develop and implement such remedial program for such site.
7 Any remedial program developed and implemented pursuant to subpara-
8 graph (i) or (ii) of this paragraph shall provide for a reasonable
9 opportunity for submission of written and oral comments regarding, at a
10 minimum, the proposed remedial program; and in accordance with such
11 regulations as it may promulgate, the department may, subject to appro-
12 priation therefor, make grants of up to fifty thousand dollars per site
13 available to a municipality which is not responsible according to appli-
14 cable principles of statutory or common law liability, a community
15 group, and/or such a municipality and a community group in partnership
16 with each other, and which may be affected by a release or threatened
17 release of hazardous waste disposed at such site in order to obtain
18 technical assistance in interpreting existing information with regard to
19 the nature and extent of the contamination at the site and the develop-
20 ment and implementation of such remedial program. To qualify to receive
21 such assistance, a community group must demonstrate that its membership
22 represents the interests of the community affected by such site and a
23 municipality must demonstrate financial need. The proposed recipient
24 must also contribute a percentage of the total grant, to be determined
25 by the department in accordance with such regulations as it may promul-
26 gate, which may be satisfied through money or the cash value of donated
27 supplies or services. Grants awarded under this section may not be used
28 for the purpose of collecting field sampling data. Provided, however,
25 12021-01-1
1 that in the event the commissioner of health shall issue an order pursu-
2 ant to subdivision three of section one thousand three hundred eighty-
3 nine-b of the public health law, such order of the commissioner of
4 health shall supersede any order issued hereunder.
5 4. a. Any order issued pursuant to subdivision three of this section,
6 other than one issued on consent of the person who is the subject of
7 such order, shall be issued only after notice and the opportunity for a
8 hearing is provided to persons who may be the subject of such order. The
9 commissioner shall determine which persons are responsible pursuant to
10 said subdivision according to applicable principles of statutory or
11 common law liability. Such persons shall be entitled to raise any statu-
12 tory or common law defense at any such hearing and such defenses shall
13 have the same force and effect at such hearings as they would have in a
14 court of law. In the event a hearing is held, no order shall be issued
15 by the commissioner under subdivision three of this section until a
16 final decision has been rendered. Any such order shall be reviewable
17 pursuant to article seventy-eight of the civil practice law and rules
18 within thirty days after service of such order. The commissioner may
19 request the participation of the attorney general in such hearings.
20 b. There shall be no liability under this section for a person other-
21 wise liable who can establish by a preponderance of the evidence that
22 the significant threat to the environment attributable to hazardous
23 waste disposed at an inactive hazardous waste disposal site was caused
24 solely by an act of God; an act of war; or an act or omission of a third
25 party other than an employee or agent of such person, or than one whose
26 act or omission occurs in connection with a contractual relationship
27 existing directly or indirectly, with such person (except where the sole
28 contractual arrangement arises from a published tariff and acceptance
26 12021-01-1
1 for carriage by a common carrier or rail), if such person establishes by
2 a preponderance of the evidence that such person exercised due care with
3 respect to the hazardous waste concerned, taking into consideration the
4 characteristics of such hazardous waste, in light of all relevant facts
5 and circumstances, and took precautions against foreseeable acts or
6 omissions of any such third party and the consequences that could fore-
7 seeably result from such acts or omissions; or any combination of them.
8 For purposes of this paragraph, the term, "contractual relationship,"
9 includes, but is not limited to, land contracts, deeds or other instru-
10 ments transferring title or possession, unless the real property on
11 which the site concerned is located was acquired by such person after
12 the disposal or placement of the hazardous waste on, in, or at such
13 site, and such person establishes one or more of the circumstances
14 described in subparagraph (i), (ii) or (iii) of this paragraph by a
15 preponderance of the evidence:
16 (i) At the time such person acquired the site such person did not know
17 and has no reason to know that any hazardous waste which is the subject
18 of the significant threat determination was disposed of on, in, or at
19 the site. To establish that such person has no reason to know, such
20 person must have undertaken, at the time of acquisition, all appropriate
21 inquiry into the previous ownership and uses of the property consistent
22 with good commercial or customary practice in an effort to minimize
23 liability. For purposes of the preceding sentence, the commissioner
24 shall take into account any specialized knowledge or experience on the
25 part of such person, the relationship of the purchase price to the value
26 of the property if uncontaminated, commonly known or reasonably ascer-
27 tainable information about the property, the obviousness of the presence
27 12021-01-1
1 or likely presence of contamination at the property, and the ability to
2 detect such contamination by appropriate inspection; or
3 (ii) Such person is a government entity which acquired the site by
4 escheat, or through any other involuntary transfer or acquisition; or
5 (iii) Such person acquired the site by inheritance or bequest, and
6 that such person exercised due care with respect to the hazardous waste
7 concerned, taking into consideration the characteristics of such hazard-
8 ous waste, in light of all relevant facts and circumstances and took
9 precautions against foreseeable acts or omissions of any such third
10 party and the consequences that could foreseeably result from such acts
11 or omissions.
12 Nothing in this paragraph shall diminish the liability of any previous
13 owner or operator of the site who would otherwise be liable under this
14 section. Notwithstanding this paragraph, if such person obtained actual
15 knowledge of the release or threatened release of a hazardous waste at
16 the site when such person owned the site and then subsequently trans-
17 ferred ownership of the site to another person without disclosing such
18 knowledge, such person shall be treated as a person responsible for the
19 disposal of hazardous waste at the site and no defense under this para-
20 graph shall be available to such person. Nothing in this paragraph shall
21 affect the liability under this section of a person who, by any act or
22 omission, caused or contributed to the release or threatened release of
23 a hazardous waste which is the subject of such proceeding relating to
24 such site.
25 8. Any duly designated officer or employee of the department or any
26 other state agency, and any agent, consultant, contractor or other
27 person, including an employee, agent, consultant or contractor of a
28 responsible person acting at the direction of the department, so author-
28 12021-01-1
1 ized in writing by the commissioner, may enter any inactive hazardous
2 waste disposal site and areas near such site to implement , pursuant to
3 subdivision five of this section, an inactive hazardous waste disposal
4 site remedial program for such site, provided the commissioner has sent
5 a written notice to the owners of record or any known known occupants
6 of such site or nearby areas of the intended entry and work at least ten
7 days prior to such initial entry.
8 § 10. Section 27-1313 of the environmental conservation law is amended
9 by adding four new subdivisions 10, 11, 12, and 13 to read as follows:
10 10. a. If, after the commissioner makes the finding described in para-
11 graph a of subdivision three of this section and after expending reason-
12 able efforts, the department is unable to obtain a voluntary commitment
13 by the owner of an inactive hazardous waste disposal site and/or any
14 person responsible for the disposal of hazardous wastes at such site (i)
15 to develop an inactive hazardous waste disposal site remedial program,
16 subject to the approval of the department, at such site, and/or (ii) to
17 implement such program within reasonable time limits, the department may
18 undertake such development or implementation, in which case, subject to
19 paragraphs b and c of this subdivision, there is hereby created a right
20 of the state to recover in any court of competent jurisdiction from such
21 owner and/or any person responsible an amount equal to all costs, both
22 direct and indirect, respecting such site that the state shall have
23 incurred plus a penalty in an amount no less than one and no more than
24 three times all such costs, both direct and indirect, that the state
25 shall have incurred in carrying out same. The department shall not be
26 entitled to such a penalty unless it proves by a preponderance of the
27 evidence that it has expended reasonable efforts as set forth in this
28 paragraph. For purposes of this paragraph, the department has expended
29 12021-01-1
1 "reasonable efforts" to obtain such a voluntary commitment if such owner
2 and/or person responsible is informed in writing of the department's
3 offer to negotiate a voluntary commitment and such owner and/or person
4 responsible does not respond to the department's offer; or responds by
5 refusing to negotiate; or starts to negotiate and thereafter discontin-
6 ues same; or acts in bad faith in the negotiation process and continues
7 not to make such commitment after receiving a final written notification
8 from the department that apprises such owner and/or person responsible
9 that failure to enter into the voluntary commitment will result in the
10 state's recovery of all costs, both direct and indirect, respecting such
11 site that the state shall have incurred plus a penalty in an amount up
12 to three times, but no less than one time, all costs, both direct and
13 indirect, the state shall have incurred in carrying out same.
14 b. Notwithstanding paragraph a of this subdivision, such owner and/or
15 person responsible shall only be liable to the state for an amount equal
16 to all costs, both direct and indirect, the state shall have incurred
17 respecting such site if such owner and/or person responsible can estab-
18 lish by a preponderance of the evidence that for good cause shown, it
19 failed and refused to enter into such voluntary commitment with the
20 department.
21 c. Two or more owners and/or persons responsible described in para-
22 graph a of subdivision three of this section may claim contribution
23 among themselves in an action brought in a court of competent jurisdic-
24 tion, and the amount of contribution to which any of them is entitled
25 shall be equal to the excess paid by that person responsible over and
26 above such person's equitable share of costs. However, the amount of
27 contribution to which any of them is entitled shall be three times the
28 excess paid by that person responsible over and above such person's
30 12021-01-1
1 equitable share of costs associated with the carrying out of such
2 person's obligations under the voluntary commitment with the department
3 described in paragraph a of this subdivision if one-third of such award
4 shall be paid to the remedial program transfer fund under section nine-
5 ty-seven-xxx of the state finance law and the court finds that:
6 (i) the contribution defendant is a person responsible for such site;
7 (ii) the contribution plaintiff gave thirty days notice to the
8 contribution defendant of the plaintiff's intention to seek contribution
9 in the event that the contribution defendant declined to participate in
10 the implementation of the contribution plaintiff's voluntary commitment;
11 (iii) the contribution defendant failed or refused to enter into a
12 settlement agreement with the contribution plaintiff; and
13 (iv) the contribution plaintiff entered into a voluntary commitment
14 with the department to remediate the site.
15 d. A person misidentified by the department as an owner and/or person
16 responsible but which entered into a voluntary commitment, other than a
17 voluntary agreement pursuant to title fourteen of this article, with the
18 department may recover from the remedial program transfer fund estab-
19 lished by section ninety-seven-xxx of the state finance law the costs it
20 shall have incurred that are reasonable in light of the action agreed to
21 be undertaken.
22 e. All monies collected by the state pursuant to this section shall be
23 deposited into the remedial program transfer fund established by section
24 ninety-seven-xxx of the state finance law.
25 11. a. Any person subject to an order issued pursuant to this section
26 or any person that shall have entered into a voluntary agreement with
27 the department under title fourteen of this article may seek in a court
28 of competent jurisdiction contribution from any other person who is a
31 12021-01-1
1 person responsible for the disposal of hazardous wastes at an inactive
2 hazardous waste disposal site or at an affected site, as defined by
3 section 27-1401 of this article, for costs incurred in developing and
4 implementing a department-approved inactive hazardous waste disposal
5 site remedial program or in negotiating and implementing a voluntary
6 agreement. Nothing in this subdivision shall be construed to limit,
7 affect, or impair any protections from or limitations on liability
8 provided by the department or otherwise.
9 b. If the costs of measures undertaken at an inactive hazardous waste
10 disposal site or at an affected site for the purpose of addressing
11 hazardous waste or petroleum are increased because of design or imple-
12 mentation considerations or alterations made for the purpose of accommo-
13 dating, effecting or advancing the redevelopment or reuse of such site,
14 the amount of such increase shall not be recoverable under paragraph a
15 of this subdivision. Examples of design or implementation considerations
16 or alterations that may be made for the purpose of accommodating,
17 effecting or advancing the redevelopment or reuse of a site include, but
18 are not limited to, such measures as altering the type, amount, quality
19 or aesthetic character of materials used in construction from the type,
20 amount, quality or aesthetic character of materials required to imple-
21 ment a remedial program or voluntary agreement at such site.
22 c. Any other provision of this subdivision notwithstanding, no costs
23 will be deemed unrecoverable under paragraph a of this subdivision
24 because they were expended to achieve a higher level of remediation at
25 an inactive hazardous waste disposal site or affected site than the
26 level required by the department.
32 12021-01-1
1 d. In any action or proceeding brought pursuant to this subdivision,
2 the defendant shall be entitled to raise any statutory or common law
3 defense that he may have.
4 e. In resolving contribution claims brought pursuant to this subdivi-
5 sion, the court may allocate costs among liable parties using such equi-
6 table factors as the court determines are appropriate.
7 f. No action for contribution pursuant to this provision may be
8 commenced more than six years after the later of:
9 (i) the date of judgment in any action under any law, state or feder-
10 al, respecting the costs that are the subject of the claim for contrib-
11 ution; or
12 (ii) the date of the issuance of an order or agreement by the depart-
13 ment respecting the costs that are the subject of the claim for contrib-
14 ution or respecting activities the conduct of which caused the expendi-
15 ture of the costs that are the subject of the claim for contribution.
16 g. The court shall enter a declaratory judgment on liability for costs
17 that will be binding on any subsequent action or actions to recover
18 costs incurred in implementing a department-approved inactive hazardous
19 waste disposal site remedial program, or in implementing a voluntary
20 agreement under title fourteen of this article.
21 h. Nothing contained in this subdivision shall affect any rights to
22 recovery of costs to which any party may be entitled by contract or
23 otherwise under law.
24 12. a. Definition. For purposes of this subdivision, the term "natural
25 resources" means land, fish, wildlife, biota, air, water, ground water,
26 drinking water supplies, and other such resources belonging to, managed
27 by, controlled by, or pertaining to the state of New York.
33 12021-01-1
1 b. Liability. Any owner of an inactive hazardous waste disposal site,
2 and any person responsible for the disposal of hazardous wastes at such
3 site, who shall be liable according to applicable principles of statuto-
4 ry or common law liability and subject to any statutory or common law
5 defense, shall be liable to the state of New York for damages for injury
6 to, destruction of, loss of, or loss of use of natural resources,
7 including the reasonable costs of assessing such injury, destruction,
8 loss, or loss of use resulting from the disposal of hazardous wastes at
9 such inactive hazardous waste disposal site. Provided, that there shall
10 be no such liability where the owner or other person responsible demon-
11 strates that the injury to, destruction of, loss of, or loss of use of
12 natural resources complained of were specifically identified as an irre-
13 versible and irretrievable commitment of natural resources in an envi-
14 ronmental impact statement, or other comparable environmental analysis,
15 and the decision to grant a permit or license authorizes such commitment
16 of natural resources, and the site was otherwise operating within the
17 terms of its permit or license.
18 c. Damages. The attorney general shall, at the request of the commis-
19 sioner as trustee of such natural resources, commence a civil action to
20 recover such damages on behalf of the people of the state of New York.
21 All damages recovered in any such action shall be paid over to the
22 commissioner for deposit to the credit of the remedial program transfer
23 fund established pursuant to section ninety-seven-xxx of the state
24 finance law. Any assessment of damages to natural resources for
25 purposes of this subdivision made by the commissioner in accordance with
26 such regulations as may be promulgated under section 27-1315 of this
27 title shall have the force and effect of a rebuttable presumption on
28 behalf of the commissioner in any such action.
34 12021-01-1
1 13. The department, by and through the commissioner, shall be author-
2 ized to exempt a person from the requirement to obtain any state or
3 local permit or other authorization for any activity needed to implement
4 an inactive hazardous waste disposal remedial program pursuant to this
5 title; provided, that the activity is conducted in a manner which satis-
6 fies all substantive technical requirements applicable to like activity
7 conducted pursuant to a permit.
8 § 11. The environmental conservation law is amended by adding a new
9 section 27-1314 to read as follows:
10 § 27-1314. Covenant not to sue.
11 1. After the successful implementation of an order on consent which
12 provides for the development and implementation of an inactive hazardous
13 waste disposal site remedial program, the person subject to the order
14 shall submit to the department a written certification prepared by an
15 individual licensed or otherwise authorized in accordance with article
16 one hundred forty-five of the education law to practice the profession
17 of engineering who shall have been in charge of the implementation of
18 such remediation undertaken pursuant to such order substantiating that,
19 at a minimum, such remedial activities satisfied the remedial require-
20 ments for the site.
21 2. Upon the department's receipt of such certification, the department
22 shall review the final engineering report and the data submitted pursu-
23 ant to the order as well as any other relevant information regarding the
24 site. The department shall provide the person, upon its satisfaction
25 that the remedial requirements for the site have been achieved, with a
26 covenant not to sue, binding upon the state, for any liability, includ-
27 ing any future liability or claim for the further remediation of hazard-
28 ous wastes at or from the site that was the subject of such order except
35 12021-01-1
1 that a person responsible for the site's remediation as of the effective
2 date of the consent order pursuant to applicable principles of statutory
3 and common law liability shall not receive a release for natural
4 resource damages. Additionally, the state nonetheless shall reserve all
5 of its rights concerning, and such covenant shall not extend to, any
6 further investigation or remedial action the department deems necessary,
7 as a result of:
8 a. a failure to comply with the terms and conditions of the order;
9 b. a fraudulent demonstration that the cleanup levels identified in
10 the order were reached;
11 c. a release or threatened release at the site subsequent to the
12 effective date of the order;
13 d. a change in the site's use subsequent to the effective date of the
14 order to a use requiring a lower level of residual contamination unless
15 additional remedial activities are undertaken which shall meet the stan-
16 dard for protection of the public health and environment that applies to
17 remedial actions for such use under this title;
18 e. information received, in whole or in part, after the department's
19 execution of such order, which indicates that the remediation performed,
20 or to be performed, under such order will not be, or is not, protective
21 of the public health or environment for such use of the site; or
22 f. the department's determination that the remedy implemented is not
23 protective of the public health or environment.
24 3. The reservation contained in paragraph d of subdivision two of this
25 section shall not be reserved in the event that a person remediates soil
26 contamination to soil category 1, as that term is described in paragraph
27 a of subdivision three of section 27-1316 of this title.
36 12021-01-1
1 4. The reservation contained in paragraph f of subdivision two of this
2 section shall not be reserved for a person who is not responsible for
3 the remediation of the site pursuant to applicable principles of statu-
4 tory or common law liability, or who is liable solely as a result of
5 ownership or operation of the affected site subsequent to the disposal
6 of hazardous waste or the discharge of petroleum, in the event that such
7 person remediates soil contamination to soil category 1, as that term is
8 described in paragraph a of subdivision three of section 27-1316 of this
9 title.
10 5. The covenant not to sue issued pursuant to this section shall
11 extend to the person's successors or assigns through acquisition of
12 title to the site to which the covenant applies and to a person who
13 develops or otherwise occupies the site, provided that such persons act
14 in good faith to adhere to the requirements of such order on consent.
15 However, such covenant does not extend, and cannot be transferred, to a
16 person who is responsible as of the date of the issuance of an order on
17 consent for the remediation of hazardous waste at the site according to
18 applicable principles of statutory or common law liability unless that
19 person was party to the order on which such covenant was based. A notice
20 of the order containing such covenant shall be recorded and indexed as a
21 declaration of covenant in the office of the recording officer for the
22 county or counties where such site is located in the manner prescribed
23 by article nine of the real property law within thirty days of signing
24 the order if the person is an owner or within thirty days of acquiring
25 title to the site if the person is a prospective purchaser.
26 6. The provisions of this title shall not affect an action or a claim,
27 including a claim for contribution, that a person who complies with an
28 order on consent executed by such person and the department providing
37 12021-01-1
1 for the development and implementation of an inactive hazardous waste
2 disposal site remedial program pursuant to this title has or may have
3 against a third party.
4 7. Nothing in this subdivision shall be construed to affect either the
5 liability of any person with respect to any costs, damages, or investi-
6 gative or remedial activities that are not included in the order; or the
7 department's authority to maintain an action or proceeding against any
8 person who is not subject to the order.
9 8. A person who has settled its liability to the department under this
10 subdivision shall not be liable for claims for contribution regarding
11 matters addressed in the order. Such settlement does not discharge any
12 of the persons responsible under law to investigate and remediate the
13 hazardous waste unless its terms so provide, but it reduces the poten-
14 tial liability of the others by the amount of the settlement.
15 9. Nothing in this subdivision shall be construed to affect the
16 authority of the department to reach settlement with other persons
17 consistent with its authority under applicable law.
18 § 12. Section 27-1315 of the environmental conservation law, as
19 amended by chapter 857 of the laws of 1982, is amended to read as
20 follows:
21 § 27-1315. Rules and regulations.
22 1. The commissioner shall have the power to promulgate rules and regu-
23 lations necessary and appropriate to carry out the purposes of this
24 title. Any such regulations shall include provisions which establish the
25 procedures for a hearing pursuant to paragraph a of subdivision four of
26 section 27-1313 of this article title. Any such provisions shall
27 ensure a division of functions between the commissioner, the staff who
28 present the case and any hearing officers appointed. In addition, any
38 12021-01-1
1 such regulations shall set forth findings to be based on a factual
2 record which must be made before the commissioner determines that a
3 significant threat to the environment exists. Rules and regulations
4 promulgated pursuant to this title shall be subject to the approval of a
5 board which shall be known as the inactive hazardous waste disposal site
6 regulation review board which shall have the same members, rules and
7 procedures as the state environmental board.
8 2. Such rules and regulations of the department as shall be in effect
9 on the effective date of the chapter of the laws of two thousand one
10 which added this subdivision that shall have been promulgated to carry
11 out the purposes of this title shall be deemed to be revised, as of the
12 effective date of the chapter of the laws of two thousand one which
13 added this subdivision, to include the definition of "hazardous waste"
14 as it appears in section 27-1301 of this title.
15 § 13. Section 27-1316 of the environmental conservation law is
16 REPEALED and a new section 27-1316 is added to read as follows:
17 § 27-1316. Soil cleanup levels.
18 1. The commissioner shall establish a technical advisory panel. The
19 membership of the panel shall be appointed by the commissioner and the
20 commissioner of health and shall include representation from the public
21 health advocacy community, the environmental advocacy community, the
22 business community, municipalities, and others as deemed appropriate by
23 the commissioner. The commissioner and the commissioner of the depart-
24 ment of health shall be co-chairs of such panel. None of the appointed
25 members shall be officers or employees of any state department or agen-
26 cy. Each member shall have experience in risk assessment methodologies,
27 remediation technologies, or other appropriate scientific, technical, or
28 other relevant expertise in regard to the remediation of contaminated
39 12021-01-1
1 sites. All meetings of the technical advisory panel shall be open to the
2 public. The recommendations of the technical advisory panel shall be
3 subject to public comment.
4 2. The panel shall provide advice on the development of, and recom-
5 mend, soil clean-up levels which provide for a multi-category approach
6 for the remediation of soil contamination, as set forth in subdivision
7 three of this section, at inactive hazardous waste disposal sites, sites
8 subject to a voluntary agreement under title fourteen of this article,
9 and cleanup and removal actions under article twelve of the navigation
10 law.
11 3. In the development of soil cleanup levels, the technical advisory
12 panel shall consider the following as the basis for the soil cleanup
13 levels: the cancer and non-cancer human health effects; background
14 concentrations; exposure to the same contaminant from other routes; the
15 strength of the toxicological data base; sensitive populations, includ-
16 ing children; protection of groundwater for its classified use, surface
17 water, air (including indoor air); and protection of ecological
18 resources, including fish and wildlife. In addition, the cumulative
19 effects of contaminants and the possibility that some contaminants may
20 act through similar toxicological mechanisms shall be considered. Where
21 toxicological, exposure or other pertinent data are inadequate or non-
22 existent for a specific chemical, the experiences under the existing
23 state remedial programs shall be considered. The goals for the level of
24 risk associated with soil cleanup levels for individual contaminants are
25 an excess cancer risk of one in one million for carcinogenic end points
26 and a hazard index of one for non-cancer end points for each soil cate-
27 gory.
40 12021-01-1
1 a. Soil category 1: cleanup levels that will be protective of public
2 health and the environment that would allow the site to be used for any
3 purpose without restriction and without reliance on institutional
4 controls or engineering controls.
5 b. Soil category 2: cleanup levels that will be protective of public
6 health and the environment for the site's current, intended, or reason-
7 ably anticipated residential, commercial, or industrial use and with
8 consideration of use of institutional or engineering controls to reach
9 such levels.
10 c. Soil category 3: a process to determine cleanup levels that will be
11 protective of public health and the environment using site specific data
12 for the site's current, intended or reasonably anticipated residential,
13 commercial, or industrial use.
14 4. The technical advisory panel shall submit its recommendations with-
15 in eighteen months from the date of the first meeting of such technical
16 advisory panel.
17 5. After the close of the public comment period on the recommendations
18 of the technical advisory panel, the commissioner and the commissioner
19 of health, where appropriate, shall promulgate regulations setting forth
20 the soil cleanup levels, taking into consideration such recommendations
21 and any other information deemed relevant by the department and the
22 department of health.
23 6. The department shall determine cleanup levels for contaminants in
24 the soil using site specific data until the commissioner promulgates
25 rules and regulations pursuant to this section and thereafter shall use
26 the soil cleanup levels set forth in such rules and regulations, as may
27 be amended.
41 12021-01-1
1 § 14. Article 27 of the environmental conservation law is amended by
2 adding a new title 14 to read as follows:
3 TITLE 14
4 VOLUNTARY CLEANUP ACT
5 Section 27-1400. Declaration of policy and findings of fact.
6 27-1401. Definitions.
7 27-1403. Request for participation.
8 27-1405. Determination of eligibility.
9 27-1407. Voluntary agreement and work plan requirements.
10 27-1409. Citizen participation/public notification.
11 27-1411. Covenant not to sue.
12 27-1413. Remediation certificate.
13 27-1415. Payment of state costs.
14 27-1417. Change of use.
15 27-1419. Immunity.
16 27-1421. Permit waivers.
17 27-1423. Access to sites.
18 § 27-1400. Declaration of policy and findings of fact.
19 The legislature hereby declares and finds that, to advance the policy
20 of the state of New York to conserve, improve and protect its natural
21 resources and environment and control water, land and air pollution in
22 order to enhance the health, safety and welfare of the people of the
23 state and their overall economic and social well being, it is appropri-
24 ate to enact this Voluntary Cleanup Act to accomplish remediation of
25 affected sites by affected persons without official compulsion; and it
26 is the intent of the legislature that the provisions of this Voluntary
27 Cleanup Act shall not be construed as limiting or otherwise affecting
28 any authority conferred upon the department by any other provision of
42 12021-01-1
1 law. The remedial goal of the voluntary cleanup program shall be the
2 protection of public health and the environment, with the minimum objec-
3 tive being to eliminate or mitigate all significant threats to public
4 health and the environment presented by the hazardous waste and/or
5 petroleum through proper application of scientific and engineering prin-
6 ciples.
7 § 27-1401. Definitions.
8 1. "Affected person" means a person whose request to participate in
9 the voluntary cleanup program under this title has been accepted by the
10 department for consideration.
11 2. "Affected site" means an area or structure where hazardous waste
12 and/or petroleum has been deposited, disposed of, placed, or otherwise
13 come to be located that is not a site on the National Priorities List
14 established under authority of 42 U.S.C.A. §9605, nor subject to
15 enforcement action, nor subject to a permit issued pursuant to titles
16 seven or nine of this article.
17 3. "Hazardous waste" means hazardous waste as defined in section
18 27-1301 of this article.
19 4. "Interim remedial measure" means "remediation" consisting of a
20 discrete set of activities to address both emergency and non-emergency
21 site conditions which can be undertaken without extensive investigation
22 and evaluation.
23 5. "Investigation" means all those activities to characterize the
24 nature and extent of a release or threatened release of hazardous waste
25 and/or petroleum into the environment.
26 6. "Person" means an individual, trust, firm, joint stock company,
27 corporation, partnership, association, state, municipality, commission,
43 12021-01-1
1 political subdivision of a state, public benefit corporation or any
2 interstate body.
3 7. "Petroleum" means petroleum as defined in section one hundred
4 seventy-two of the navigation law, even if appearing on the list promul-
5 gated pursuant to section 37-0103 of this chapter.
6 8. "Preliminary environmental assessment" means a written report
7 submitted as part of a request to participate in the voluntary cleanup
8 program within the department under this title which shall contain the
9 information described in subdivision two of section 27-1403 of this
10 title.
11 9. "Remediation" means the activities undertaken, except for "investi-
12 gation" activities, to eliminate, remove, abate, control or monitor
13 health and/or environmental hazards or potential hazards in connection
14 with an affected site or to treat or dispose of wastes and waste contam-
15 inated materials from the site, including but not limited to, grading,
16 contouring, trenching, grouting, capping, excavation, transporting,
17 incineration, chemical treatment, biological treatment or construction
18 of leachate collection and treatment facilities.
19 10. "State costs" means all those costs, obligations, commitments, or
20 undertakings associated with the administration or oversight responsi-
21 bilities of the department, the department of health, or any other state
22 agency attributable to carrying out the investigation and/or remediation
23 of an affected site under a voluntary agreement, as described in this
24 title. Such expenses shall include administrative expenses (wages and
25 salaries), fringe benefits, overhead, supplies and materials, equipment,
26 travel and utilities.
27 11. "Voluntary agreement" means an agreement executed in accordance
28 with this title by an affected person and the department concerning
44 12021-01-1
1 actual, threatened, or suspected hazardous waste and/or petroleum pres-
2 ent at or migrating from an affected site.
3 § 27-1403. Request for participation.
4 1. A person who desires to participate in the voluntary cleanup
5 program under this title concerning a particular affected site shall
6 submit a request to the department.
7 2. Such request shall be on a form provided by the department and
8 shall contain general information concerning such person and such
9 person's relation to the affected site, a description of the affected
10 site, and a copy of a preliminary environmental assessment concerning
11 such affected site that shall include, but not be limited to:
12 a. a review of any relevant prior environmental studies, property
13 assessments, or geological studies of such affected site;
14 b. a legal description of such affected site;
15 c. the physical characteristics of such affected site;
16 d. the compliance history of any operations at such affected site to
17 the extent the history is known by such person;
18 e. a review of any existing aerial photographs of such affected site
19 that may indicate its prior uses;
20 f. if possible, interviews with any employee who may have knowledge of
21 environmental conditions at such affected site;
22 g. an inspection of such affected site sufficient to evaluate site
23 conditions and remedial needs;
24 h. an identification of the past, current, intended, and reasonably
25 anticipated future uses of such affected site; and
26 i. any other relevant information concerning the potential for human
27 and environmental exposures to contamination at such affected site.
45 12021-01-1
1 3. The department shall determine whether such affected site should be
2 included in the registry of inactive hazardous waste disposal sites as
3 required by section 27-1305 of this article. If the department deter-
4 mines that such affected site is eligible for inclusion in the registry
5 as a classification 1 or 2 site, and if the affected person commits to
6 enter into a voluntary agreement pursuant to this title which requires
7 the elimination or mitigation of all significant threats to the public
8 health and environment posed by the hazardous waste, the department
9 shall defer including the affected site in the registry and shall
10 continue to defer such site for so long as the affected person is
11 engaged in good faith negotiations to enter into such an agreement and,
12 following its execution, is in compliance with the terms of the volun-
13 tary agreement.
14 § 27-1405. Determination of eligibility.
15 1. The department shall use its best efforts to notify the person
16 requesting participation in the voluntary cleanup program within sixty
17 days after receiving such request pursuant to section 27-1403 of this
18 title that such request is either accepted or rejected.
19 2. The department shall reject such request if:
20 a. the request is submitted by the owner and/or any person responsible
21 for the disposal of hazardous waste according to applicable principles
22 of statutory or common law liability at an affected site which is listed
23 in the registry of inactive hazardous waste disposal sites under section
24 27-1305 of this article and given a classification as described in
25 subparagraph one or two of paragraph b of subdivision four of such
26 section;
46 12021-01-1
1 b. the request does not contain the information required pursuant to
2 subdivision two of section 27-1403 of this title in sufficient detail to
3 assess the conditions of the affected site;
4 c. the department determines that there is an action or proceeding
5 against the person who is requesting participation in the voluntary
6 cleanup program that is pending in any civil or criminal court in any
7 jurisdiction, or before any state or federal administrative agency or
8 body, wherein the state or federal government seeks the investigation,
9 removal or remediation of hazardous waste and/or petroleum, or penalties
10 for the disposal of hazardous waste and/or petroleum; or
11 d. the department, based on the preliminary environmental assessment
12 and/or other information the department possesses, determines that the
13 request is for a site which does not meet the definition of "affected
14 site" pursuant to section 27-1401 of this title.
15 3. The department may reject such request for participation if the
16 department determines that the public interest would not be served by
17 granting such request.
18 4. If such request is rejected pursuant to paragraph b of subdivision
19 two of this section, the department shall provide to the person making
20 such request, in writing, a list of the additional information required
21 for the department to determine eligibility under this title.
22 § 27-1407. Voluntary agreement and work plan requirements.
23 1. a. The voluntary agreement shall include, but not be limited to,
24 the following provisions:
25 (i) one requiring such affected person to pay for state costs
26 provided, however, that with respect to an affected site which the
27 department has determined constitutes a significant threat to the public
28 health or environment, the department may include a provision requiring
47 12021-01-1
1 the affected person to provide a technical assistance grant, as
2 described in subdivision three of section 27-1313 of this article and
3 under the conditions described therein, to an eligible party in accord-
4 ance with procedures established under such program, with the cost of
5 such a grant serving as an offset against such state costs;
6 (ii) one resolving disputes arising from the evaluation, analysis, and
7 oversight of the implementation of the work plan as described in para-
8 graph b of this subdivision;
9 (iii) one requiring an indemnification provision which holds the state
10 harmless from any claim, suit, action, and cost of every name and
11 description arising out of or resulting from the fulfillment or
12 attempted fulfillment of the voluntary agreement except for those
13 claims, suits, actions, and costs arising from the state's gross negli-
14 gence or willful or intentional misconduct;
15 (iv) one authorizing the department to terminate a voluntary agreement
16 at any time during the implementation of such agreement if the affected
17 person implementing such agreement fails to comply substantially with
18 such agreement's terms and conditions;
19 (v) one exempting such affected person from the requirement to obtain
20 any state or local permit or other authorization for any activity satis-
21 fying the following criteria:
22 (1) the activity is conducted on the affected site or on different
23 premises that are under common control or are contiguous to or phys-
24 ically connected with the affected site and the activity manages exclu-
25 sively hazardous waste and/or petroleum from such affected site,
26 (2) the activity satisfies all substantive technical requirements
27 applicable to like activity conducted pursuant to a permit as determined
28 by the department, and
48 12021-01-1
1 (3) the activity is conducted under such voluntary agreement;
2 (vi) one stating that the department shall not consider such affected
3 person an operator of such affected site based solely upon execution or
4 implementation of such voluntary agreement for purposes of remediation
5 liability;
6 (vii) a requirement that the affected person conduct investigation
7 and/or remediation activities pursuant to one or more work plans which
8 are approved by the department; and
9 (viii) the inclusion of other conditions considered necessary by the
10 department concerning the effective and efficient implementation of this
11 title, and, where the affected person is responsible for the disposal of
12 hazardous waste or the discharge of petroleum according to applicable
13 principles of statutory or common law liability, unless such liability
14 arises solely from ownership or operation of the affected site subse-
15 quent to the disposal of hazardous waste or the discharge of petroleum,
16 the department shall include provisions relating to recovery of state
17 costs incurred before the effective date of such voluntary agreement.
18 b. A work plan shall include, but not be limited to, the following
19 requirements:
20 (i) a work plan for the investigation of the affected site shall
21 provide for the investigation and characterization of the nature and
22 extent of the contamination within the boundaries of the affected site,
23 provided, however, that an affected person that is responsible for the
24 disposal of hazardous waste or the discharge of petroleum under applica-
25 ble principles of statutory or common law liability, unless such liabil-
26 ity arises solely from ownership or operation of the affected site
27 subsequent to the disposal of hazardous waste or the discharge of petro-
28 leum, shall also be required to investigate and characterize the nature
49 12021-01-1
1 and extent of contamination emanating from such affected site. An
2 affected person not responsible for the disposal of hazardous waste or
3 the discharge of petroleum under applicable principles of statutory or
4 common law liability, or a person that is liable solely as a result of
5 ownership or operation of the affected site subsequent to the disposal
6 of hazardous waste or the discharge of petroleum, must perform an expo-
7 sure assessment consisting of an evaluation of the pathways by which a
8 receptor could be exposed to such contamination, in order to determine
9 the risk to public health and the environment from any contamination
10 emanating from such affected site. The work plan shall require that the
11 affected person cause a final report to be prepared and submitted to the
12 department that identifies the investigation activities completed pursu-
13 ant to the work plan. Such final report, at a minimum, shall:
14 A. fully characterize the nature and extent of contamination at the
15 affected site and, if the affected person is required to conduct an
16 off-site investigation pursuant to this title, the nature and extent of
17 contamination that has migrated from the affected site;
18 B. state whether the completed investigation has demonstrated that
19 conditions at the affected site (i) require remediation in order to meet
20 the remedial goal of the voluntary cleanup program or (ii) meet the
21 remedial goal of the voluntary cleanup program without necessity for
22 remediation; and
23 C. if the final report certifies that no remediation is required to
24 meet the remedial goal of the voluntary cleanup program, then the final
25 report shall also demonstrate the same requirements as set forth in
26 subdivision two of this section.
27 (ii) a work plan for the remediation of the affected site, other than
28 a work plan for an interim remedial measure, shall provide for the
50 12021-01-1
1 development and implementation of a remedial program for such contam-
2 ination within the boundaries of such affected site, provided however,
3 that an affected person that is responsible for the disposal of hazard-
4 ous waste or the discharge of petroleum under applicable principles of
5 statutory or common law liability, except an affected person whose
6 liability arises solely from ownership or operation of the affected site
7 subsequent to the disposal of hazardous waste or the discharge of petro-
8 leum, shall also be required to provide in such work plan for the devel-
9 opment and implementation of a remedial program for contamination
10 related to the affected site but located outside the boundaries of the
11 affected site. The remedial goal of any such remedial program shall be
12 the protection of public health and the environment, with the minimum
13 objective being to eliminate or mitigate all significant threats to
14 public health and the environment presented by the hazardous waste
15 and/or petroleum through proper application of scientific and engineer-
16 ing principles and such remedial program must be selected upon due
17 consideration of the evaluation factors set forth in paragraph b of
18 subdivision one of section 27-1313 of this article. Such work plan must
19 contain an analysis that such proposed remedy was assessed using such
20 evaluation factors. Such work plan must provide that the soil cleanup
21 levels be consistent with the soil cleanup levels set forth in rules and
22 regulations, as amended, promulgated pursuant to section 27-1315 and
23 subdivision five of section 27-1316 of this article; until such regu-
24 lations are promulgated, the department shall determine cleanup levels
25 for contaminants in soil using site specific data. The department may
26 approve a work plan that includes institutional controls and/or engi-
27 neering controls as components of an interim remedial measure or a reme-
28 dial program but only if the work plan requires the owner of such real
51 12021-01-1
1 property to annually submit to the department a written statement certi-
2 fying under penalty of perjury that the institutional controls and engi-
3 neering controls employed to remediate such contamination are unchanged
4 from the previous certification and that nothing has occurred that would
5 constitute a violation of any such controls, and gives access to such
6 real property reasonable under the circumstances to evaluate continued
7 maintenance of such controls. The department shall establish and main-
8 tain a database with relevant information on such controls and shall
9 make such information available for public inspection at the office of
10 the county clerk or register for each county and at the office of the
11 town clerk for each town in Suffolk and Nassau counties;
12 (iii) a work plan for remediation pursuant to an interim remedial
13 measure shall contain such provisions as the department deems appropri-
14 ate. The work plan shall require that the affected person cause a final
15 report to be prepared and submitted to the department that identifies
16 the activities completed pursuant to such work plan; and
17 (iv) at any time during the evaluation of a proposed work plan, the
18 department may request that an affected person submit additional or
19 corrected information to the department. An affected person shall either
20 comply with the request or withdraw such proposed work plan from consid-
21 eration.
22 2. For a work plan requiring remediation, the affected person shall
23 cause a final report to be prepared and submitted to the department that
24 identifies the remediation activities completed pursuant to such work
25 plan. A final report for a work plan requiring remediation, other than
26 an interim remedial measure, shall, at a minimum, demonstrate, as appro-
27 priate, that:
52 12021-01-1
1 a. there is no contamination by hazardous waste or petroleum of the
2 soil, sediment, surface water, or groundwater on or underlying such
3 affected site or, if required by this title, such areas off-site which
4 are or have been impacted by on-site contamination in concentrations
5 exceeding the requirements for remediation set forth in such work plan
6 for remediation of such affected site;
7 b. the data submitted to the department demonstrates that the applica-
8 ble remediation requirements set forth in the work plan have been or
9 will be achieved in accordance with the timeframes, if any, established
10 in such work plan;
11 c. the use restrictions, if any are required by the voluntary agree-
12 ment, have been recorded and indexed as a declaration of restrictions in
13 the office of the recording officer for the county or counties where
14 such affected site is located in the manner prescribed by article nine
15 of the real property law. Such declaration of restriction shall contain
16 the name of the record owner of such affected site along with tax map
17 parcel number or the section, block, and lot number of such affected
18 site; or
19 d. the department has approved a plan submitted by such affected
20 person for the proper operation, maintenance and monitoring of engineer-
21 ing controls, if any are required by such work plan, used to contain or
22 control the contamination at or from such affected site.
23 3. In the event that the affected person is not required by this title
24 to conduct an investigation or perform remediation outside the property
25 boundaries of the affected site, then the department shall require the
26 person responsible according to applicable principles of statutory or
27 common law liability, other than such affected person, to conduct the
28 off-site investigation and remediation if hazardous waste and/or petro-
53 12021-01-1
1 leum that have migrated from the affected site pose a significant threat
2 to public health or the environment. If such responsible person fails
3 to undertake or undertakes and fails to complete such off-site investi-
4 gation and/or remediation, the state is authorized to use moneys from
5 the remedial program transfer fund established pursuant to section nine-
6 ty-seven-xxx of the state finance law to undertake the investigation
7 and/or remediation of such contamination. The state's costs incurred
8 relative to such off-site contamination shall be recoverable from the
9 person or persons responsible.
10 4. The commissioner shall use best efforts to approve, modify or
11 reject a proposed work plan within sixty days from its receipt,
12 provided, however, that the commissioner shall use best efforts to
13 approve, modify or reject a proposed work plan for remediation, other
14 than a work plan for an interim remedial measure, within sixty days
15 after the end of the comment period or the close of the public meeting
16 provided by section 27-1409 of this title, whichever is later, and after
17 evaluating any comments received.
18 a. If the commissioner rejects a proposed work plan, the commissioner
19 shall notify the affected person and specify the reasons for rejecting
20 same.
21 b. If the commissioner approves or modifies such proposed work plan,
22 the commissioner shall notify the affected person, in writing, that the
23 proposed work plan has been approved or modified. If the commissioner
24 requires a modification, the affected person may agree to modify such
25 proposed work plan or withdraw it from consideration.
26 5. The affected person shall execute a voluntary agreement that shall
27 contain the matters set forth in this title. The affected person shall
28 carry out the terms of the voluntary agreement.
54 12021-01-1
1 6. Nothing herein shall prohibit or limit the department from termi-
2 nating a voluntary agreement at any time during its implementation if
3 the affected person subject to such voluntary agreement fails to comply
4 substantially with such agreement's terms and conditions.
5 7. Nothing herein shall require the department to enter into a volun-
6 tary agreement with any person.
7 § 27-1409. Citizen participation/public notification.
8 1. The department shall place a notification of receipt of a request
9 to participate in the voluntary cleanup program pursuant to this title
10 in the environmental notice bulletin.
11 2. Upon the department's finalization of a work plan for investi-
12 gation, the department must notify individuals, groups and/or organiza-
13 tions that have expressed interest in or are affected by the work plan
14 of such work plan, and must publish a notice in the environmental notice
15 bulletin. Further, upon the satisfactory completion of the investigation
16 performed under such voluntary agreement, the department must notify
17 individuals, groups and/or organizations that have expressed interest in
18 or are affected by the voluntary agreement and publish a notice in the
19 environmental notice bulletin regarding such satisfactory completion.
20 3. Before the department finalizes a proposed work plan for remedi-
21 ation, other than a work plan for an interim remedial measure, the
22 department must notify individuals, groups and organizations that have
23 expressed interest in or are affected by the proposed work plan of the
24 proposed work plan for remediation and publish a notice requesting
25 comments concerning the proposed work plan in the environmental notice
26 bulletin. Such notice shall provide for a forty-five day public comment
27 period following publication of the notice required under this section.
28 The department shall hold a public meeting on the proposed work plan if
55 12021-01-1
1 the commissioner has found that the affected site constitutes a signif-
2 icant threat to the public health or environment.
3 § 27-1411. Covenant not to sue.
4 1. After the affected person has successfully completed the implemen-
5 tation of a work plan and where such affected person can certify that
6 the remedial goal of the voluntary cleanup program, both on the affected
7 site and, if required by this title, such areas off-site which are or
8 have been impacted by on-site contamination, has been achieved and that
9 the requirements of such work plan as well as the relevant provisions of
10 paragraph b of subdivision two of section 27-1407 of this title have
11 been satisfied, such affected person shall submit to the department a
12 written certification prepared by an individual licensed or otherwise
13 authorized in accordance with article one hundred forty-five of the
14 education law to practice the profession of engineering substantiating
15 that the affected site meets the remedial goal of the voluntary cleanup
16 program as set forth in this title and that the requirements of such
17 work plan as well as the relevant provisions of paragraph b of subdivi-
18 sion two of section 27-1407 of this title have been satisfied.
19 2. Upon the department's receipt of such certification, the department
20 shall review the final report, the certification and the data submitted
21 pursuant to the voluntary agreement as well as any other relevant infor-
22 mation regarding the affected site. The department shall provide the
23 affected person, upon its satisfaction that the remedial goal of the
24 voluntary cleanup program and the requirements of the work plan as well
25 as the relevant provisions of paragraph b of subdivision two of section
26 27-1407 of this title for the affected site and, if required under this
27 title, such areas off-site which are or have been impacted by on-site
28 contamination have been achieved, with a covenant not to sue, binding
56 12021-01-1
1 upon the state, for any liability, including any future liability or
2 claim for the further remediation of hazardous waste and/or petroleum at
3 or from the affected site that was the subject of such voluntary agree-
4 ment except that a person responsible for the affected site's remedi-
5 ation pursuant to applicable principles of statutory and common law
6 liability, unless such liability arises solely from ownership or opera-
7 tion of the affected site subsequent to the disposal of hazardous waste
8 or the discharge of petroleum, shall not receive a release for natural
9 resource damages. Additionally, the state nonetheless shall reserve all
10 of its rights concerning, and such covenant shall not extend to, any
11 further investigation and/or remediation the department deems necessary,
12 as a result of:
13 a. a failure to comply with the terms and conditions of the voluntary
14 agreement;
15 b. a fraudulent demonstration that the cleanup levels identified
16 pursuant to the voluntary agreement were reached;
17 c. a release or threatened release at the affected site subsequent to
18 the effective date of the voluntary agreement;
19 d. a change in the affected site's use subsequent to the effective
20 date of the voluntary agreement to a use requiring a lower level of
21 residual contamination unless additional remediation is undertaken which
22 shall meet the standard for protection of the public health and environ-
23 ment that applies under this title;
24 e. information received, in whole or in part, after the department's
25 execution of such voluntary agreement, which indicates that the activ-
26 ities performed, or to be performed, under such voluntary agreement will
27 not be, or are not, protective of the public health or environment for
28 such use of the affected site; or
57 12021-01-1
1 f. the department determines that environmental conditions at the
2 affected site are not protective of the public health or environment.
3 3. The reservation contained in paragraph d of subdivision two of this
4 section shall not be reserved in the event that the level of soil
5 contamination at the affected site is less than that set forth in soil
6 category 1, as that term is described in paragraph a of subdivision
7 three of section 27-1316 of this article.
8 4. The reservation contained in paragraph f of subdivision two of this
9 section shall not be reserved for an affected person who is not respon-
10 sible for the remediation of the affected site pursuant to applicable
11 principles of statutory or common law liability, or who is liable solely
12 as a result of ownership or operation of the affected site subsequent to
13 the disposal of hazardous waste or the discharge of petroleum, in the
14 event that such affected person remediates soil contamination to soil
15 category 1, as that term is described in paragraph a of subdivision
16 three of section 27-1316 of this article.
17 5. The covenant not to sue issued pursuant to this section shall
18 extend to the affected person's successors or assigns through acquisi-
19 tion of title to the affected site to which the covenant applies and to
20 a person who develops or otherwise occupies the affected site, provided
21 that such persons act in good faith to adhere to the requirements of
22 such voluntary agreement. However, such covenant does not extend, and
23 cannot be transferred, to a person who is responsible for the disposal
24 of hazardous waste or the discharge of petroleum according to applicable
25 principles of statutory or common law liability as of the effective date
26 of the voluntary agreement unless that person was party to the voluntary
27 agreement on which such covenant was based. A notice of the voluntary
28 agreement containing such covenant shall be recorded and indexed as a
58 12021-01-1
1 declaration of covenant in the office of the recording officer for the
2 county or counties where such affected site is located in the manner
3 prescribed by article nine of the real property law within thirty days
4 of signing the voluntary agreement if the affected person is an owner or
5 within thirty days of acquiring title to the affected site if the
6 affected person is a prospective purchaser.
7 6. The provisions of this title shall not affect an action or a claim,
8 including a claim for contribution, that an affected person who imple-
9 ments or completes a voluntary agreement executed by such affected
10 person and the department pursuant to this title has or may have against
11 a third party.
12 7. Nothing in this section shall be construed to affect either the
13 liability of any person with respect to any costs, damages, or investi-
14 gative or remedial activities that are not included in the voluntary
15 agreement; or the department's authority to maintain an action or
16 proceeding against any person who is not subject to the voluntary agree-
17 ment.
18 8. An affected person who has settled its liability to the department
19 under this section shall not be liable for claims for contribution
20 regarding matters addressed in the voluntary agreement. Such settlement
21 does not discharge any of the persons responsible under law to investi-
22 gate and remediate the hazardous waste unless its terms so provide, but
23 it reduces the potential liability of the others by the amount of the
24 settlement.
25 9. Nothing in this section shall be construed to affect the authority
26 of the department to reach settlement with other persons consistent with
27 its authority under applicable law.
59 12021-01-1
1 10. An affected person who implements a voluntary agreement executed
2 by such affected person and the department pursuant to this title shall
3 not be held liable for claims for contribution concerning matters
4 addressed in such voluntary agreement.
5 § 27-1413. Remediation certificate.
6 1. Upon the department's determination pursuant to subdivision two of
7 section 27-1411 of this title that the remedial goal of the voluntary
8 cleanup program as well as the requirements of the work plan and rele-
9 vant requirements set forth in paragraph b of subdivision two of section
10 27-1407 of this title for the affected site and, if required under this
11 title, such areas off-site which are or have been impacted by on-site
12 contamination have been achieved, the affected person may apply to the
13 commissioner for a remediation certificate that certifies that the
14 requirements under this title for the affected site have been achieved
15 which would warrant the allowance of a credit under section twenty-one
16 of the tax law.
17 2. Such application shall be on a form provided by the department,
18 shall be certified under penalty of perjury, and shall include but not
19 be limited to, a statement from a certified public accountant detailing
20 the site preparation costs, as that term is defined in section twenty-
21 one of the tax law, required to be paid or incurred in order to qualify
22 for a remediation certificate.
23 3. The commissioner shall issue a remediation certificate if such
24 affected person is either (i) not a person responsible for the remedi-
25 ation of hazardous waste or the discharge of petroleum at the affected
26 site according to applicable principles of statutory or common law
27 liability, or (ii) a person responsible for the remediation of hazardous
28 waste or the discharge of petroleum at the affected site according to
60 12021-01-1
1 applicable principles of statutory or common law liability if such
2 person's liability arises solely from ownership or operation of the
3 affected site subsequent to the disposal of hazardous waste or the
4 discharge of petroleum.
5 4. Such remediation certificate shall state:
6 a. that the affected person is eligible pursuant to paragraph (i) or
7 (ii) of subdivision three of this section for a credit under section
8 twenty-one of the tax law;
9 b. that the affected person has satisfactorily completed the activ-
10 ities required by the voluntary agreement and this title. Further, in
11 the event that cleanup of the soil to soil category 2 or soil category
12 3, as those terms are described in paragraph a of subdivision three of
13 section 27-1316 of this article would be protective of public health and
14 the environment in accordance with subparagraph (ii) of paragraph b of
15 subdivision one of section 27-1407 of this title, and the affected
16 person remediated the soil to soil category 1 as that term is described
17 in paragraph a of subdivision three of section 27-1316 of this article,
18 the remediation certificate shall indicate that the affected person is
19 eligible to receive an additional two percent credit pursuant to para-
20 graph four of subdivision (a) of section twenty-one of the tax law; and
21 c. the department's determination regarding the amount that the
22 affected person has expended for site preparation costs, as that term is
23 defined in section twenty-one of the tax law, required to be paid or
24 incurred in order to qualify for a remediation certificate.
25 5. If the affected person has leased the property and such lessee is
26 (i) not a person responsible for the remediation of hazardous waste or
27 the discharge of petroleum at the affected site according to applicable
28 principles of statutory or common law liability, or (ii) a person
61 12021-01-1
1 responsible for the remediation of hazardous waste or the discharge of
2 petroleum at the affected site according to applicable principles of
3 statutory or common law liability if such person's liability arises
4 solely from ownership or operation of the affected site subsequent to
5 the disposal of hazardous waste or the discharge of petroleum, the reme-
6 diation certificate shall also include a statement indicating that the
7 lessee is a person as set forth in this subdivision.
8 6. A remediation certificate issued pursuant to subdivision three of
9 this section may be modified or revoked by the commissioner upon a find-
10 ing that:
11 a. the affected person has failed to comply with the terms and condi-
12 tions of the voluntary agreement;
13 b. the affected person fraudulently demonstrated that the cleanup
14 levels identified in the voluntary agreement were reached; or
15 c. there is good cause for such modification or revocation.
16 7. Upon the commissioner's determination pursuant to subdivision three
17 or six of this section, the commissioner shall provide the affected
18 person with notice of such determination and notice of the right to
19 appeal such determination. The commissioner's determination shall be
20 final unless a hearing is requested by certified mail to the commission-
21 er within thirty days after receiving notice of such determination.
22 After such hearing the commissioner shall give notice of final determi-
23 nation to such affected person. The commissioner may promulgate regu-
24 lations to effectuate the purposes of this section. The commissioner
25 shall promptly notify the commissioner of taxation and finance when such
26 a determination pursuant to such subdivision six of this section has
27 become final and is no longer subject to judicial appeal.
28 § 27-1415. Payment of state costs.
62 12021-01-1
1 1. Pursuant to timetables contained in the voluntary agreement, the
2 affected person shall pay all state costs incurred in negotiating and
3 overseeing implementation of such agreement. In addition, if such
4 affected person is responsible for the disposal of hazardous waste or
5 the discharge of petroleum according to applicable principles of statu-
6 tory or common law liability, unless such liability arises solely from
7 ownership or operation of the affected site subsequent to the disposal
8 of hazardous waste or the discharge of petroleum, such affected person
9 shall pay all costs incurred by the state up to the effective date of
10 such voluntary agreement.
11 2. Payment of such state costs identified in subdivision one of this
12 section shall be made to the remedial program transfer fund established
13 pursuant to section ninety-seven-xxx of the state finance law.
14 3. In the event that either the affected person or the department
15 withdraw from a voluntary agreement before such agreement's completion,
16 or upon completion of the activities undertaken pursuant to the volun-
17 tary agreement, all unexpended moneys which the affected person shall
18 have paid into such account shall be reimbursed to the affected person
19 after a final accounting of all claims upon such affected person's
20 payments.
21 § 27-1417. Change of use.
22 1. At least sixty days before the start of physical alteration or
23 construction constituting a change of use at an affected site which is
24 the subject of a covenant not to sue issued pursuant to section 27-1411
25 of this title, or at least sixty days before a change of use involving
26 any physical alteration or construction, as the case may be, the owner
27 or the person or entity proposing to make such change of use shall
28 provide written notification to the department.
63 12021-01-1
1 2. No person shall engage in any activity at an affected site remedi-
2 ated pursuant to this title that is not consistent with restrictions
3 placed upon the use of the property, or that will, or that reasonably is
4 anticipated to: prevent or interfere significantly with a proposed,
5 ongoing, or completed project under this title; or expose the public
6 health or the environment to a significantly increased threat of harm or
7 damage at such affected site.
8 3. For the purposes of this section:
9 a. "change of use" means the transfer of title to all or part of an
10 affected site being addressed under this title, or any activity that is
11 likely to disrupt or expose hazardous waste and/or petroleum or to
12 increase direct human exposure to hazardous waste and/or petroleum; or
13 any other conduct that will or may tend to significantly interfere with
14 an ongoing or completed project under this title.
15 b. "complete notice" means a notice that adequately apprises the
16 department of the contemplated change and how such change may affect the
17 property's proposed, ongoing, or completed remediation including but not
18 limited to the ability to implement the engineering and institutional
19 controls associated with the affected site's remediation.
20 § 27-1419. Immunity.
21 Section eight of the court of claims act or any other provision of law
22 to the contrary notwithstanding, the state shall be immune from liabil-
23 ity and action with respect to any act or omission done in the discharge
24 of the department's responsibilities pursuant to this title; provided,
25 however, that this section shall not limit the liability which may
26 otherwise exist for the unlawful, willful or malicious acts or omissions
27 on the part of the state, state agencies, or their officers, employees
64 12021-01-1
1 or agents; or for the ownership or responsibility for the disposal of
2 hazardous waste and/or petroleum according to law.
3 § 27-1421. Permit waivers.
4 The department, by and through the commissioner, shall be authorized
5 to exempt a person from the requirement to obtain any state or local
6 permit or other authorization for any activity needed to implement a
7 program for the investigation and/or remediation of hazardous waste
8 and/or petroleum; provided, that the activity is conducted in a manner
9 which satisfies all substantive technical requirements applicable to
10 like activity conducted pursuant to a permit.
11 § 27-1423. Access to sites.
12 The department, by and through the commissioner, shall be authorized
13 to:
14 1. Require that any person permit a duly designated officer or employ-
15 ee of the department or of a municipal corporation, or any agent,
16 consultant or contractor of the department or of a municipal corpo-
17 ration, or any other person, including an employee, agent, consultant or
18 contractor of a responsible person acting at the direction of the
19 department, so authorized in writing by the commissioner, to enter upon
20 any property which has or may have been the site of hazardous waste
21 and/or petroleum disposal, and/or areas near such site, for the follow-
22 ing purposes:
23 a. to inspect and take samples of such hazardous waste and/or petrole-
24 um and/or environmental media, utilizing such sampling methods as may be
25 necessary or appropriate including without limitation soil borings and
26 monitoring wells; provided, that no sampling methods involving the
27 substantial disturbance of the ground surface of such property may be
28 utilized until after a minimum of ten days written notice thereof shall
65 12021-01-1
1 have been provided to the owner and operator and occupant of such prop-
2 erty, if identifiable by reasonable efforts, unless the commissioner
3 makes a written determination that such notice will not allow the
4 protection of the public health or the environment, in which case two
5 days written notice shall be sufficient;
6 b. to implement the investigation and/or remediation of hazardous
7 waste and/or petroleum and/or environmental media; provided, that no
8 such work may be undertaken until after a minimum of ten days written
9 notice thereof shall have been provided to the owner and operator and
10 occupant of such property, if identifiable by reasonable efforts, unless
11 the commissioner makes a written determination that such notice will not
12 allow the protection of the public health or the environment, in which
13 case two days written notice shall be sufficient.
14 2. a. Require that any person furnish to the department, in a form and
15 manner as prescribed by the department, information relating to the
16 current and past hazardous waste and/or petroleum generation, treatment,
17 storage, disposal and/or transportation activities of such person or any
18 other person now or formerly under the control of such person; in the
19 event such person cannot comply therewith, in whole or in part, such
20 person shall furnish to the department information describing all
21 efforts made by such person to comply therewith; any information so
22 furnished to the department shall be considered a "written instrument"
23 as defined in subdivision three of section 175.00 of the penal law;
24 b. Require that any person permit a duly designated officer or employ-
25 ee of the department at all reasonable times to have access to and to
26 copy all books, papers, documents and records relating to the current
27 and past hazardous waste and/or petroleum generation, treatment, stor-
66 12021-01-1
1 age, disposal and/or transportation activities of such person or any
2 person now or formerly under the control of such person;
3 c. Require, by subpoena issued in the name of the department, the
4 production of books, papers, documents and other records, and the rendi-
5 tion of testimony by deposition under oath of any person relating to the
6 current and past hazardous waste and/or petroleum generation, treatment,
7 storage, disposal and/or transportation activities of such person or any
8 person now or formerly under the control of such person; such subpoenas
9 and depositions shall be regulated by the civil practice law and rules;
10 the commissioner may invoke the powers of the supreme court of the state
11 of New York or any other court of competent jurisdiction to compel
12 compliance therewith.
13 § 15. Subdivision 8 of section 52-0101 of the environmental conserva-
14 tion law, as added by chapter 512 of the laws of 1986, is amended to
15 read as follows:
16 8. "Hazardous waste" shall have the definition set forth in title
17 nine of article twenty-seven section 27-1301 of this chapter.
18 § 16. Subdivision 1 of section 52-0103 of the environmental conserva-
19 tion law, as amended by chapter 9 of the laws of 1994, is amended to
20 read as follows:
21 1. For remediation of hazardous waste sites, as set forth in title
22 three of this article and for the closure of municipal landfills, as set
23 forth in title five of article fifty-four of this chapter, one billion
24 two hundred million dollars of which : (i) up to one hundred million
25 dollars shall be made available for state assistance payments toward the
26 cost of the closure of municipal landfills, as set forth in title five
27 of article fifty-four of this chapter; and (ii) up to one hundred thou-
28 sand dollars shall be made available for the study of hazardous
67 12021-01-1
1 substance waste disposal sites, as defined in section 27-1316 of this
2 chapter; and
3 § 17. Section 71-2705 of the environmental conservation law, as added
4 by chapter 550 of the laws of 1980 and subdivision 1 as amended by chap-
5 ter 493 of the laws of 1985, is amended to read as follows:
6 § 71-2705. Violations of section 27-1423 and titles 9, 11 and 13 of
7 article 27 of this chapter.
8 1. Civil and administrative sanctions. Any person who violates any of
9 the provisions of, or who fails to perform any duty imposed by section
10 27-1423 and titles 9, 11 and 13 of article 27 or any rule or regulation
11 promulgated pursuant thereto, or any term or condition of any certif-
12 icate or permit issued pursuant thereto, or any final determination or
13 order of the commissioner made pursuant to this title shall be liable in
14 the case of a first violation, for a civil penalty not to exceed twen-
15 ty-five thousand dollars and an additional penalty of not more than
16 twenty-five thousand dollars for each day during which such violation
17 continues, to be assessed by the commissioner after an opportunity to be
18 heard pursuant to the provisions of section 71-1709 of this chapter, or
19 by the court in any action or proceeding pursuant to section 71-2727 of
20 this chapter, and, in addition thereto, such person may by similar proc-
21 ess be enjoined from continuing such violation and any permit or certif-
22 icate issued to such person may be revoked or suspended or a pending
23 renewal application denied. In the case of a second and any further
24 violation, the liability shall be for a civil penalty not to exceed
25 fifty thousand dollars for each such violation and an additional penalty
26 not to exceed fifty thousand dollars for each day during which such
27 violation continues.
68 12021-01-1
1 2. Criminal sanctions. Any person who, having any of the culpable
2 mental states defined in section 15.05 of the penal law, shall violate
3 any of the provisions of or who fails to perform any duty imposed by
4 section 27-1423 and titles 9, 11 and 13 of article 27 or any rules and
5 regulations promulgated pursuant thereto, or any term or condition of
6 any certificate or permit issued pursuant thereto, or any final determi-
7 nation or order of the commissioner made pursuant to this title shall be
8 guilty of a misdemeanor and, upon conviction thereof, shall for a first
9 conviction be punished by a fine not to exceed twenty-five thousand
10 dollars per day of violation or by imprisonment for a term of not more
11 than one year, or both such fine and imprisonment. If the conviction is
12 for an offense committed after a first conviction of such person under
13 this subdivision, punishment shall be by a fine not to exceed fifty
14 thousand dollars per day of violation, or by imprisonment for not more
15 than two years or by both such fine and imprisonment.
16 § 18. Subdivision 1 of section 71-2727 of the environmental conserva-
17 tion law, as amended by chapter 671 of the laws of 1986, is amended to
18 read as follows:
19 1. The commissioner, after investigation, notice and an opportunity to
20 be heard, may issue, modify and revoke orders prohibiting violations of
21 any of the provisions of article 27 or 71 twenty-seven or seventy-one
22 of this chapter or of any rule or regulation promulgated pursuant there-
23 to and requiring the taking of such remedial measures as may be neces-
24 sary or appropriate. Nothing herein contained shall be deemed to
25 preclude the disposition of any matter within the department's jurisdic-
26 tion under article twenty-seven of this chapter by stipulation, agreed
27 settlement, consent order, default, or other informal method, upon such
69 12021-01-1
1 terms and subject to such conditions and limitations as the commissioner
2 may deem just.
3 § 19. Article 71 of the environmental conservation law is amended by
4 adding a new title 36 to read as follows:
5 TITLE 36
6 PROTECTION OF NATURAL RESOURCES
7 Section 71-3601. Declaration of policy and statement of purpose.
8 71-3603 Definition.
9 71-3605. Environmental easements; certain common law rules not
10 applicable.
11 71-3607. Procedures for modifying or extinguishing environmental
12 easement.
13 71-3609. Scope of this title.
14 71-3611. Severability.
15 § 71-3601. Declaration of policy and statement of purpose.
16 The legislature hereby finds and declares that in order to implement
17 the state policy of conserving, improving and protecting natural
18 resources and the environment and controlling water, land and air
19 pollution, the imposition of institutional controls on affected real
20 property is fundamental to the enhancement of the health, safety and
21 welfare of the people of the state and their overall economic and social
22 well being.
23 § 71-3603. Definition.
24 When used in this title, "environmental easement" means an easement,
25 covenant, restriction or other interest in real property, created under
26 and subject to the provisions of this title which limits or restricts
27 development, management or use of such real property for the purpose of
28 protecting the public health or safety or natural resources or the envi-
70 12021-01-1
1 ronment from pollution affecting the real property in a manner consist-
2 ent with the public policy and purpose set forth in section 71-3601 of
3 this title; provided that no such easement shall be acquired or held by
4 the state which is subject to the provisions of article fourteen of the
5 constitution.
6 § 71-3605. Environmental easements; certain common law rules not appli-
7 cable.
8 1. An environmental easement may be created or conveyed only by an
9 instrument which complies with the requirements of section 5-703 of the
10 general obligations law and which is subscribed by the grantee. It shall
11 be of perpetual duration unless otherwise provided in such instrument.
12 2. An environmental easement shall be modified or extinguished only
13 pursuant to the provisions of section 71-3607 of this title. Any such
14 modification or extinguishment shall set forth in an instrument which
15 complies with the requirements of section 5-703 of the general obli-
16 gations law or in an instrument filed in a manner prescribed for record-
17 ing a conveyance of real property pursuant to section two hundred nine-
18 ty-one of the real property law.
19 3. (a) An environmental easement shall be held only by the state,
20 except that the state shall not be authorized or empowered to acquire or
21 hold any environmental easement which is subject to the provisions of
22 article fourteen of the constitution.
23 (b) Any environmental easement created pursuant to this title shall
24 not limit, restrict or modify the right to construct, operate or contin-
25 ue the use of any facility, or impede any activity, duly authorized
26 under the applicable provisions of the federal natural gas act (15
27 U.S.C. §§ 717-717w).
71 12021-01-1
1 4. An environmental easement shall be duly recorded and indexed as
2 such in the office of the recording officer for the county or counties
3 where the land is situate in the manner prescribed by article nine of
4 the real property law. The easement shall describe the property encum-
5 bered by the easement by adequate legal description or by reference to a
6 recorded map showing its boundaries and bearing the seal and signature
7 of a licensed land surveyor, or if the easement encumbers the entire
8 property described in a deed of record, the easement may incorporate by
9 reference the description in such deed, otherwise it shall refer to the
10 liber and page of the deed or deeds of the record owner or owners of the
11 real property burdened by the environmental easement. An instrument for
12 the purpose of creating, conveying, modifying or terminating an environ-
13 mental easement shall not be effective unless recorded. The department
14 shall maintain a file of environmental easements.
15 5. An environmental easement may be enforced in law or equity by its
16 grantor or by the state, and is enforceable against the owner of the
17 burdened property. Enforcement shall not be defeated because of any
18 subsequent adverse possession, laches, estoppel or waiver. No general
19 law of the state which operates to defeat the enforcement of any inter-
20 est in real property shall operate to defeat the enforcement of any
21 environmental easement unless such general law expressly states the
22 intent to defeat the enforcement of such easement or provides for the
23 exercise of the power of eminent domain. It is not a defense in any
24 action to enforce an environmental easement that:
25 (a) It is not appurtenant to an interest in real property;
26 (b) It is not of a character that has been recognized traditionally at
27 common law;
28 (c) It imposes a negative burden;
72 12021-01-1
1 (d) It imposes affirmative obligations upon the owner of any interest
2 in the burdened property;
3 (e) The benefit does not touch or concern real property; or
4 (f) There is no privity of estate or of contract.
5 6. Agents, employees, or other representatives of the state may enter
6 and inspect the property burdened by an environmental easement in a
7 reasonable manner and at reasonable times to assure compliance with the
8 restriction.
9 7. The department may promulgate regulations establishing standards
10 for environmental easements.
11 8. Written notice shall be provided to the director of the budget and
12 notice published in the state register and the environmental notice
13 bulletin at least thirty days prior to the acquisition, or entry into a
14 contract for the acquisition, on behalf of the state of any environ-
15 mental easement.
16 § 71-3607. Procedures for modifying or extinguishing environmental ease-
17 ment.
18 1. An environmental easement held by the state may only be modified or
19 extinguished:
20 (a) as provided in the instrument creating the easement; or
21 (b) in a proceeding pursuant to section nineteen hundred fifty-one of
22 the real property actions and proceedings law; or
23 (c) upon the exercise of the power of eminent domain; or
24 (d) where land subject to an environmental easement or an interest in
25 such land is required for a major utility transmission facility which
26 has received a certificate of environmental compatibility and public
27 need pursuant to article seven of the public service law or is required
28 for a major steam electric generating facility which has received a
73 12021-01-1
1 certificate of environmental compatibility and public need pursuant to
2 article eight of the public service law or is required for a major elec-
3 tric generating facility which has received a certificate of environ-
4 mental compatibility and public need pursuant to article ten of the
5 public service law, upon the filing of such certificate in a manner
6 prescribed for recording a conveyance of real property pursuant to
7 section two hundred ninety-one of the real property law or any other
8 applicable provision of law; provided, the commissioner shall have made
9 and filed in the main office of the department a certificate that the
10 exercise of such easement is no longer necessary to the accomplishment
11 of its purpose, and consenting to the modification or extinguishment
12 thereof.
13 2. Where an environmental easement is modified or extinguished pursu-
14 ant to paragraph (d) of subdivision one of this section, such easement
15 shall be modified or extinguished only to the minimum extent necessary
16 to accommodate the facility which is the subject of the certificate of
17 environmental compatibility and public need.
18 3. Nothing in this section shall be construed to preclude the extin-
19 guishment or modification of an environmental easement pursuant to the
20 applicable provisions of the federal natural gas act (15 U.S.C. §§ 717-
21 717w).
22 § 71-3609. Scope of this title.
23 This title shall not affect any interests or rights in real property
24 which are not environmental easements, and shall not affect the rights
25 of owners to convey any interests in real property which they could now
26 create under existing law without reference to the terms of this title.
27 Nothing in this title shall diminish the powers granted by any other law
28 to acquire interests or rights in real property by purchase, gift,
74 12021-01-1
1 eminent domain or otherwise and to use the same for public purposes.
2 Nothing in this title shall be construed to alter the authority other-
3 wise available to the state to acquire environmental easements for the
4 purposes of section 71-3601 of this title by eminent domain.
5 § 71-3611. Severability.
6 The provisions of this title shall be severable, and if any clause,
7 sentence, paragraph, subdivision or part of this title shall be adjudged
8 by any court of competent jurisdiction to be invalid, such judgment
9 shall not affect, impair or invalidate the remainder thereof, but shall
10 be confined in its operation to the clause, sentence, paragraph, subdi-
11 vision or part thereof directly involved in the controversy in which
12 such judgment shall have been rendered; provided that if an environ-
13 mental easement created pursuant to this title is determined by any
14 court of competent jurisdiction to be land or water or an interest in
15 land or water subject to the provisions of article fourteen of the
16 constitution then the authority of the state to hold or acquire such
17 easement and the conveyance to the state of such easement shall be void
18 ab initio.
19 § 20. The section heading of section 213 of the civil practice law
20 and rules, as amended by chapter 43 of the laws of 1975, is amended to
21 read as follows:
22 Actions to be commenced within six years: where not otherwise provided
23 for; on contract; on sealed instrument; on bond or note, and mortgage
24 upon real property; by state based on misappropriation of public proper-
25 ty; based on mistake; by corporation against director, officer or stock-
26 holder; based on fraud; by state based on claims pursuant to subdivision
27 ten of section 27-1313 of the environmental conservation law; by state
75 12021-01-1
1 based on injury to, or destruction of, or loss of, or loss of use of
2 natural resources.
3 § 21. Section 213 of the civil practice law and rules is amended by
4 adding three new subdivisions 9, 10 and 11 to read as follows:
5 9. an action by the state under authority of subdivision ten of
6 section 27-1313 of the environmental conservation law; the time within
7 which the action must be commenced shall be computed from the initiation
8 of physical on-site construction of the remedial program.
9 10. an action for contribution under authority of subdivision eleven
10 of section 27-1313 of the environmental conservation law; the time with-
11 in which such action must be commenced shall be computed from the later
12 of:
13 a. the date of judgment in any action under any law, state or federal,
14 respecting the costs that are the subject of the claim for contribution;
15 or
16 b. the date of the issuance of an order or agreement by the department
17 of environmental conservation respecting the costs that are the subject
18 of the claim for contribution or respecting activities the conduct of
19 which caused the expenditure of the costs that are the subject of the
20 claim for contribution.
21 11. an action under authority of subdivision twelve of section 27-1313
22 of the environmental conservation law; the time within which the action
23 must be commenced shall be computed from the completion of the
24 construction of the inactive hazardous waste disposal site remedial
25 program.
26 § 22. The general municipal law is amended by adding a new section
27 970-r to read as follows:
76 12021-01-1
1 § 970-r. State assistance: brownfield redevelopment area planning. 1.
2 Definitions. a. "Brownfield redevelopment area" is an area where: a
3 number of abandoned, idled or under-utilized properties are clustered in
4 a geographic location; contamination by hazardous waste as defined in
5 section 27-1301 of the environmental conservation law or petroleum as
6 defined in section one hundred seventy-two of the navigation law is
7 suspected of being widespread; and the remediation of any one site
8 would not address all suspected sources of contamination and enable
9 beneficial environmental and economic use.
10 b. A "brownfield redevelopment area plan" is a plan undertaken by a
11 municipality or not-for-profit corporation to develop a strategy to
12 return a brownfield redevelopment area to productive economic use while
13 protecting human health and the environment.
14 2. The secretary of state is authorized to provide technical assist-
15 ance to municipalities and not-for-profit corporations acting in cooper-
16 ation with municipalities, to enhance their capabilities to plan the
17 redevelopment of brownfield redevelopment areas.
18 3. Within the limits of appropriations therefor, the secretary of
19 state is authorized to provide, on a competitive basis, financial
20 assistance to municipalities and not-for-profit corporations acting in
21 cooperation with municipalities, to advance plans for the redevelopment
22 of brownfield redevelopment areas, as follows:
23 a. in the preparation of a pre-planning study to develop information
24 necessary for designating a brownfield redevelopment area. Pre-planning
25 activities include, but are not limited to, basic information about the
26 boundaries of the area, the number and size of brownfield sites, the
27 current and anticipated uses of the properties and groundwater in the
28 area, known data about the environmental conditions of the properties,
77 12021-01-1
1 ownership of the sites in the area and other information deemed relevant
2 by the secretary of state. Such study, when completed, shall be submit-
3 ted to the secretary of state. The municipality or not-for-profit
4 corporation with the approval of the municipality may then file a peti-
5 tion requesting designation of the area as a brownfield redevelopment
6 area for the approval of the secretary of state;
7 b. in the preparation of a brownfield redevelopment area plan. Plan-
8 ning activities eligible to receive funding include, but are not limited
9 to, a strategy which defines the end uses of the brownfield redevelop-
10 ment area once the properties have been remediated and revitalized,
11 including any infrastructure needs, and identifies actions required to
12 reach such proposed end-uses, and other information deemed relevant by
13 the secretary of state. Such plan must be formulated in consultation
14 with community based organizations and affected landowners. The munici-
15 pality or not-for-profit corporation with the approval of the munici-
16 pality shall submit such plan for the approval of the secretary of
17 state.
18 c. in the preparation of site assessments of properties owned by a
19 municipality or a party not responsible for the remediation of hazardous
20 waste or petroleum according to applicable principles of statutory or
21 common law liability, or a responsible party according to applicable
22 principles of statutory or common law liability if such person's liabil-
23 ity arises solely from ownership or operation of the site subsequent to
24 the disposal of hazardous waste or the discharge of petroleum in the
25 brownfield redevelopment area. Assessment activities include, but are
26 not limited to, testing of properties to determine the nature and extent
27 of the contamination (including soil and groundwater), environmental
28 assessments, the development of a proposed remediation strategy to
78 12021-01-1
1 address any identified contamination and any other activities deemed
2 appropriate by the secretary in consultation with the commissioner of
3 environmental conservation. Any environmental assessment shall be
4 subject to the review and approval of the commissioner of environmental
5 conservation. State assistance payments shall not exceed seventy-five
6 percent of the cost of such plans. The secretary of state, in consulta-
7 tion with the commissioner of environmental conservation, may enter into
8 a contract with a municipality or not-for-profit corporation, including
9 such terms and conditions as the secretary of state and commissioner of
10 environmental conservation may deem appropriate, to provide the state
11 assistance.
12 4. When determining the eligibility of a municipality or not-for-pro-
13 fit corporation for such assistance, the secretary of state, in consul-
14 tation with the commissioner of environmental conservation and other
15 appropriate agencies, shall consider, among other matters, the follow-
16 ing: benefit to human health, benefit to the environment, the economic
17 benefit to the state (including new employment opportunities and new
18 public recreational resources), and the strength of local support.
19 Funding preferences shall be given to proposals for areas: with a demon-
20 strated need for restoration; that would yield economic benefit to the
21 state and create new jobs or a new public resource; that receive a
22 strong level of local support; and where a majority of the properties
23 are owned by a municipality or party not responsible for the remediation
24 of hazardous waste or petroleum according to applicable principles of
25 statutory or common law liability or a responsible party according to
26 applicable principles of statutory or common law liability if such
27 person's liability arises solely from ownership or operation of the site
79 12021-01-1
1 subsequent to the disposal of hazardous waste or the discharge of petro-
2 leum.
3 5. The secretary of state shall provide from available monies techni-
4 cal support to municipalities and not-for-profit corporations to prepare
5 their brownfield redevelopment areas program. Such support includes but
6 is not limited to personal and non-personal services.
7 § 23. The navigation law is amended by adding a new section 172-a to
8 read as follows:
9 § 172-a. Liability exclusions. 1. Notwithstanding subdivision thir-
10 teen of section one hundred seventy-two of this article the term "owner
11 or operator" does not include a person that is a lender that, without
12 participating in the management of property, holds indicia of ownership
13 primarily to protect the security interest of the person in that proper-
14 ty; nor does it include a person that is a lender that did not partic-
15 ipate in management of property prior to foreclosure, notwithstanding
16 that the person forecloses on such property and after foreclosure,
17 sells, re-leases (in the case of a lease finance transaction), or liqui-
18 dates the property, maintains business activities, winds up operations,
19 undertakes in a non-negligent manner remedial actions under the direc-
20 tion of the department, with respect to such property, or takes any
21 other measure to preserve, protect, or prepare such property prior to
22 sale or disposition, if the person seeks to sell, re-lease (in the case
23 of a lease finance transaction), or otherwise divest the person of the
24 property at the earliest practicable commercially reasonable time, on
25 commercially reasonable terms, taking into account market conditions and
26 legal and regulatory requirements; provided, however, that such lender
27 shall not make a claim against the fund arising out of a discharge asso-
28 ciated with such property. For purposes of this subdivision:
80 12021-01-1
1 (a) the term "participate in management" means actually participating
2 in the management or operational affairs of a property; and does not
3 include merely having the capacity to influence, or the unexercised
4 right to control, property operations;
5 (b) a person that is a lender and that holds indicia of ownership
6 primarily to protect a security interest in a property shall be consid-
7 ered to participate in management only if, while the borrower is still
8 in possession of the property encumbered by the security interest, the
9 person exercises decisionmaking control over the environmental compli-
10 ance related to the property, such that the person has undertaken
11 responsibility for the hazardous waste handling or disposal practices
12 related to the property; or exercises control at a level comparable to
13 that of a manager of the property, such that the person has assumed or
14 manifested responsibility for the overall management of the property
15 encompassing day-to-day decisionmaking with respect to environmental
16 compliance; or over all or substantially all of the operational func-
17 tions (as distinguished from financial or administrative functions) of
18 the property other than the function of environmental compliance;
19 (c) the term "participate in management" does not include performing
20 an act or failing to act prior to the time at which a security interest
21 is created in a property; and
22 (d) the term "participate in management" does not include holding a
23 security interest or abandoning or releasing a security interest;
24 including in the terms of an extension of credit, or in a contract or
25 security agreement relating to the extension, a covenant, warranty, or
26 other term or condition that relates to environmental compliance; moni-
27 toring or enforcing the terms and conditions of the extension of credit
28 or security interest; monitoring or undertaking one or more inspections
81 12021-01-1
1 of the property; requiring a response action or other lawful means of
2 addressing the release or threatened release of a hazardous waste in
3 connection with the property prior to, during, or on the expiration of
4 the term of the extension of credit; providing financial or other advice
5 or counseling in an effort to mitigate, prevent, or cure default or
6 diminution in the value of the property; restructuring, renegotiating,
7 or otherwise agreeing to alter the terms and conditions of the extension
8 of credit or security interest, exercising forbearance; exercising other
9 remedies that may be available under applicable law for the breach of a
10 term or condition of the extension of credit or security agreement; or
11 conducting in a non-negligent manner a remedial action directly or under
12 the direction of the department of environmental conservation, if the
13 actions do not rise to the level of participating in management (within
14 the meaning of this subdivision);
15 (e) the term "extension of credit" includes a lease finance trans-
16 action in which the lessor does not initially select the leased property
17 and does not during the lease term control the daily operations or main-
18 tenance of the property; or that conforms with regulations issued by the
19 appropriate federal banking agency (as defined in 12 USC section 1813)
20 or the superintendent of banks or with regulations issued by the
21 National Credit Union Administrative Board, as appropriate;
22 (f) the term "financial or administrative function" includes a func-
23 tion such as that of a credit manager, accounts payable officer,
24 accounts receivable officer, personnel manager, comptroller, or chief
25 financial officer, or a similar function;
26 (g) the term "foreclosure" and "foreclose" means, respectively,
27 acquiring and to acquire, a property through purchase at sale under a
28 judgment or decree, power of sale, or nonjudicial foreclosure sale; a
82 12021-01-1
1 deed in lieu of foreclosure, or similar conveyance from a trustee; or
2 repossession, if the property was security for an extension of credit
3 previously contracted; conveyance pursuant to an extension of credit
4 previously contracted, including the termination of a lease agreement;
5 or any other formal or informal manner by which the person acquires, for
6 subsequent disposition, title to or possession of a property in order to
7 protect the security interest of the person;
8 (h) the term "lender" means an insured depository institution (as
9 defined in 12 USC section 1813); an insured credit union (as defined in
10 12 USC section 1752); a bank or association chartered under the Farm
11 Credit Act of 1971 (12 U.S.C. 2001 et seq.); a leasing or trust company
12 that is an affiliate of an insured depository institution; any person
13 (including a successor or assignee of any such person) that makes a bona
14 fide extension of credit to or takes or acquires a security interest
15 from a nonaffiliated person; the Federal National Mortgage Association,
16 the Federal Home Loan Mortgage Corporation, the Federal Agricultural
17 Mortgage Corporation, or any other entity that in a bona fide manner
18 buys or sells loans or interests in loans; a person that insures or
19 guarantees against a default in the repayment of an extension of credit,
20 or acts as a surety with respect to an extension of credit, to a nonaf-
21 filiated person; and a person that provides title insurance and that
22 acquires a property as a result of assignment or conveyance in the
23 course of underwriting claims and claims settlement;
24 (i) the term "operational function" includes a function such as that
25 of a facility or plant manager, operations manager, chief operating
26 officer, or chief executive officer; and
27 (j) the term "security interest" includes a right under a mortgage,
28 deed of trust, assignment, judgment lien, pledge, security agreement,
83 12021-01-1
1 factoring agreement, or lease and any other right accruing to a person
2 to secure the repayment of money, the performance of a duty, or any
3 other obligation by a nonaffiliated person.
4 2. Notwithstanding subdivision thirteen of section one hundred seven-
5 ty-two of this article the term, "owner or operator" does not include
6 the state or a public corporation which acquired, and thereafter
7 retained without participating in the management of such property,
8 ownership or control involuntarily or voluntarily by virtue of its func-
9 tion as sovereign; provided, however, that such public corporation shall
10 not make a claim against the fund arising out of a discharge associated
11 with such property. Neither the state nor any public corporation shall
12 incur under this chapter any liability as to matters within the juris-
13 diction of the department as a result of actions taken in response to an
14 emergency created by the discharge or threatened discharge of petroleum
15 by another person, provided that such actions by the state or public
16 corporation did not constitute reckless, willful, wanton or intentional
17 misconduct. As used in this subdivision:
18 (a) "public corporation" means a public corporation as defined in the
19 general construction law;
20 (b) "involuntary acquisition of ownership or control" includes, but is
21 not limited to, the following:
22 (i) acquisitions by the state or a public corporation, or its agent,
23 acting as a conservator or receiver pursuant to a clear and direct stat-
24 utory mandate or regulatory authority;
25 (ii) acquisitions of assets through foreclosure and its equivalents as
26 defined in paragraph (g) of subdivision one of this section, or other-
27 wise, by the state or a public corporation in the course of administer-
28 ing a loan, loan guarantee or loan insurance program;
84 12021-01-1
1 (iii) acquisitions by the state or a public corporation pursuant to
2 seizure or forfeiture authority;
3 (iv) acquisitions by the state or a public corporation as the result
4 of tax delinquency purposes; provided, that such ownership or control is
5 not retained primarily for investment purposes.
6 (c) "management participation" means that the state or a public corpo-
7 ration is actually participating in the management or operation of the
8 property but does not include the mere capacity to influence, ability to
9 influence or unexercised right to control the operation of the property.
10 Nothing contained in this subdivision affects the applicability of this
11 section in favor of a holder of a security interest according to the
12 terms thereof.
13 3. Notwithstanding subdivision thirteen of section one hundred seven-
14 ty-two of this article the term, "owner or operator" includes a fiduci-
15 ary; provided, however, that such liability on the part of a fiduciary
16 shall not exceed the assets held in the fiduciary capacity if such
17 person is not liable independently of such person's ownership as a fidu-
18 ciary or actions taken in a fiduciary capacity; provided, however, that
19 such fiduciary shall not make a claim against the fund arising out of a
20 discharge associated with such property.
21 (a) For purposes of this subdivision, (i) the term "fiduciary" means a
22 person acting for the benefit of another party as a bona fide trustee;
23 executor; administrator; custodian; guardian of estates or guardian ad
24 litem; receiver; conservator; committee of estates of incapacitated
25 persons; personal representative; trustee (including a successor to a
26 trustee) under an indenture agreement, trust agreement, lease, or simi-
27 lar financing agreement, for debt securities, certificates of interest
28 or certificates of participation in debt securities, or other forms of
85 12021-01-1
1 indebtedness as to which the trustee is not, in the capacity of trustee,
2 the lender; or representative in any other capacity that the department,
3 after providing public notice, determines to be similar to the various
4 capacities previously described in this paragraph; and does not include
5 either a person that is acting as a fiduciary with respect to a trust or
6 other fiduciary estate that was organized for the primary purpose of, or
7 is engaged in, actively carrying on a trade or business for profit, or
8 to facilitate one or more estate plans, or because of the incapacity of
9 a natural person or a person that acquires ownership or control of a
10 property with the objective purpose of avoiding liability of the person
11 or any other person;
12 (ii) the term "fiduciary capacity" means the capacity of a person in
13 holding title to a property, or otherwise having control of or an inter-
14 est in a property, pursuant to the exercise of the responsibilities of
15 the person as a fiduciary.
16 (b) Nothing in this subdivision affects the rights or immunities or
17 other defenses that are available under law that are applicable to a
18 person subject to this subdivision or creates any liability for a person
19 or a private right of action against a fiduciary or any other person.
20 (c) Nothing in this subdivision applies to a person if that person,
21 acts in a capacity other than that of a fiduciary or in a fiduciary
22 capacity and in that capacity, directly or indirectly benefits from a
23 trust or fiduciary relationship; or is a beneficiary and fiduciary with
24 respect to the same fiduciary estate and as a fiduciary, receives bene-
25 fits that exceed customary or reasonable compensation, and incidental
26 benefits, permitted under other applicable law.
27 (d) This subdivision does not preclude a claim under this chapter
28 against the assets of the estate or trust administered by the fiduciary;
86 12021-01-1
1 or a nonemployee agent or independent contractor retained by a fiduci-
2 ary.
3 4. Notwithstanding subdivision thirteen of section one hundred seven-
4 ty-two of this article the term, "owner or operator" includes an indus-
5 trial development agency created under the general municipal law, other
6 than one that holds bare legal title to such property; has not partic-
7 ipated with any party responsible under law for the remediation of
8 contamination in, on, or from such property to attempt to have such a
9 party avoid its remedial liability; has not exercised any contractual
10 rights it may have or had, if any, under the lease, guarantee, or any
11 other financing agreement pursuant to which the industrial development
12 agency would assume control over the actual operation of the property;
13 has not taken possession or control of the property; and does not make a
14 claim against the fund arising out of a discharge associated with such
15 property. Nothing in this subdivision affects the rights or immunities
16 or other defenses that are available under law that are applicable to a
17 person subject to this subdivision or creates any liability for a person
18 or a private right of action against an industrial development agency or
19 any other person.
20 5. Notwithstanding the foregoing, a person receiving a liability
21 exemption or liability limitation under subdivision one, two, three or
22 four of this section shall be deemed to have waived any claim pursuant
23 to section one hundred eighty-one of this article that such person may
24 have against the New York environmental protection and spill compen-
25 sation fund.
26 § 24. Paragraph (a) of subdivision 2 of section 176 of the navigation
27 law, as amended by chapter 584 of the laws of 1992, is amended to read
28 as follows:
87 12021-01-1
1 (a) Upon the occurrence of a discharge of petroleum, the department
2 shall respond promptly and proceed to cleanup and remove the discharge
3 in accordance with environmental priorities or may, at its discretion,
4 direct the discharger to promptly cleanup and remove the discharge. The
5 department shall be responsible for cleanup and removal or as the case
6 may be, for retaining agents and contractors who shall operate under the
7 direction of that department for such purposes. Implementation of clean-
8 up and removal procedures after each discharge shall be conducted in
9 accordance with environmental priorities and procedures established by
10 the department. Such procedures shall provide:
11 (i) the objective of a cleanup and removal that the department deter-
12 mines does not constitute an immediate response cleanup shall be the
13 protection of public health and the environment, with the minimum objec-
14 tive being to eliminate or mitigate all significant threats to public
15 health and the environment presented by such discharge through proper
16 application of scientific and engineering principles; and that the reme-
17 dy must be selected upon due consideration of the following factors:
18 (A) conformance to standards and criteria that are generally applica-
19 ble, consistently applied, and officially promulgated, that are either
20 directly applicable, or that are not directly applicable but are rele-
21 vant and appropriate, unless good cause exists why conformity should be
22 dispensed with, and with consideration being given to guidance deter-
23 mined, after the exercise of engineering judgement, to be applicable;
24 (B) overall protectiveness of public health and the environment;
25 (C) short-term effectiveness;
26 (D) long-term effectiveness;
27 (E) reduction of toxicity, mobility, and volume with treatment;
28 addressing a hot spot of petroleum that permanently and significantly
88 12021-01-1
1 reduces the volume, toxicity, and/or mobility of the petroleum is to be
2 preferred over a method that does not do so. The hierarchy of remedial
3 technologies shall be as set forth under section 27-0105 of the environ-
4 mental conservation law;
5 (F) cost;
6 (G) implementability;
7 (H) community acceptance; and
8 (I) land use: the current, intended, and reasonably anticipated future
9 land uses for the property and its surroundings, if ascertainable.
10 (ii) the objective of a cleanup and removal that the department deter-
11 mines does constitute an immediate response cleanup shall be to effectu-
12 ate a prompt cleanup and removal of contamination to ensure restoration
13 of the environment to pre-spill conditions. For purposes of this para-
14 graph, an immediate response cleanup shall be one that comprises a
15 discrete set of activities which can be undertaken without extensive
16 investigation and evaluation, to prevent, mitigate, or remedy environ-
17 mental damage or the consequences of environmental damage attributable
18 to the discharge.
19 (iii) the remediation of soil as part of any cleanup and removal of a
20 discharge under this article shall be performed in accordance with the
21 soil cleanup levels promulgated pursuant to section 27-1316 of the envi-
22 ronmental conservation law.
23 (iv) for all cleanup and removal actions other than immediate response
24 cleanups, the department shall place a notification in the environmental
25 notice bulletin and shall notify individuals, groups, and/or organiza-
26 tions that have expressed interest in or are affected by such cleanup
27 and removal actions upon the initiation of an investigation, upon the
28 successful completion of such investigation, and upon the submission of
89 12021-01-1
1 a proposed remedy. The department shall accept public comments for
2 forty-five days prior to approving such remedy.
3 § 25. Paragraph (b) of subdivision 2 of section 176 of the navigation
4 law is relettered paragraph (c) and a new paragraph (b) is added to read
5 as follows:
6 (b) The department shall determine cleanup levels for contaminants in
7 the soil using site specific data until the commissioner promulgates
8 rules and regulations pursuant to section 27-1315 and subdivision five
9 of section 27-1316 of the environmental conservation law and thereafter
10 shall use the soil cleanup levels set forth in such rules and regu-
11 lations, as may be amended.
12 § 26. Section 176 of the navigation law is amended by adding a new
13 subdivision 9 to read as follows:
14 9. The department, by and through the commissioner, shall be author-
15 ized to exempt a person from the requirement to obtain any state or
16 local permit or other authorization for any activity needed to implement
17 a program for the cleanup and removal of petroleum pursuant to this
18 article; provided, that the activity is conducted in a manner which
19 satisfies all substantive technical requirements applicable to like
20 activity conducted pursuant to a permit.
21 § 27. Subdivision 1 of section 181 of the navigation law, as amended
22 by chapter 712 of the laws of 1989, is amended to read as follows:
23 1. Any (a) Except as provided in paragraph (e) of this subdivision,
24 any person who has discharged petroleum shall be strictly liable, with-
25 out regard to fault, for all cleanup and removal costs and all direct
26 and indirect damages, no matter by whom sustained, as defined in this
27 section. In addition to cleanup and removal costs and damages, any such
28 person who is notified of such release and who did not undertake relo-
90 12021-01-1
1 cation of persons residing in the area of the discharge in accordance
2 with paragraph (c) of subdivision seven of section one hundred seventy-
3 six of this article, shall be liable to the fund for an amount equal to
4 two times the actual and necessary expense incurred by the fund for such
5 relocation pursuant to section one hundred seventy-seven-a of this arti-
6 cle. Additionally, the department shall be entitled to a penalty in an
7 amount no less than one and no more than three times all cleanup and
8 removal costs if it proves by a preponderance of the evidence that it
9 has expended reasonable efforts as set forth in this subdivision. For
10 purposes of this subdivision, the department has expended reasonable
11 efforts to obtain a voluntary commitment if such person is informed in
12 writing of the department's offer to negotiate a voluntary commitment
13 and such responsible person does not respond to the department's offer;
14 or responds by refusing to negotiate; or starts to negotiate and there-
15 after discontinues same; or acts in bad faith in the negotiation proc-
16 ess, and continues not to make such commitment after receiving a final
17 written notification from the department that apprises such responsible
18 person that failure to enter into the voluntary commitment will result
19 in the state's recovery of all costs, both direct and indirect, respect-
20 ing such discharge; then the state shall be entitled to recover all
21 costs, both direct and indirect, respecting such discharge that the
22 state shall have incurred plus, to the extent that the state can show by
23 a preponderance of the evidence that it has fulfilled the procedural
24 steps in this paragraph, a penalty in an amount up to three times, but
25 no less than one time, all costs, both direct and indirect, the state
26 shall have incurred in carrying out same.
27 (b) Notwithstanding paragraph (a) of this subdivision, such person
28 shall only be liable to the state for an amount equal to all costs, both
91 12021-01-1
1 direct and indirect, the state shall have incurred respecting such
2 discharge if such person can establish by a preponderance of the
3 evidence that for good cause shown, it failed and refused to enter into
4 such voluntary commitment with the department.
5 (c) Two or more owners and/or persons described in paragraph (a) of
6 subdivision three of this section may claim contribution among them-
7 selves in an action brought in a court of competent jurisdiction, and
8 the amount of contribution to which any of them is entitled shall be
9 equal to the excess paid by that person over and above such person's
10 equitable share of costs. However, the amount of contribution to which
11 any of them is entitled shall be three times the excess paid by that
12 person over and above such person's equitable share of costs associated
13 with the carrying out of such person's obligations under the voluntary
14 commitment with the department described in paragraph (a) of this subdi-
15 vision if one-third of such award shall be paid to the remedial program
16 transfer fund established pursuant to section ninety-seven-xxx of the
17 state finance law and the court finds that:
18 (i) the contribution defendant is a person described in paragraph (a)
19 of this subdivision for such site;
20 (ii) the contribution plaintiff gave thirty days notice to the
21 contribution defendant of the plaintiff's intention to seek contribution
22 in the event that the contribution defendant declined to participate in
23 the implementation of the contribution plaintiff's voluntary commitment;
24 (iii) the contribution defendant failed or refused to enter into a
25 settlement agreement with the contribution plaintiff; and
26 (iv) the contribution plaintiff entered into a voluntary commitment
27 with the department to remediate the site.
92 12021-01-1
1 (d) A person misidentified by the department as a person described in
2 paragraph (a) of this subdivision but which entered into a voluntary
3 commitment with the department may recover from the New York environ-
4 mental protection and spill compensation fund created under section one
5 hundred seventy-nine of this article the costs it shall have incurred
6 that are reasonable in light of the action agreed to be undertaken.
7 (e) There shall be no liability under this subdivision for a person
8 otherwise liable who can establish by a preponderance of the evidence
9 that the discharge was caused solely by an act of God; an act of war; or
10 an act or omission of a third party other than an employee or agent of
11 such person, or than one whose act or omission occurs in connection with
12 a contractual relationship, existing directly or indirectly, with such
13 person (except where the sole contractual arrangement arises from a
14 published tariff and acceptance for carriage by a common carrier or
15 rail), if such person establishes by a preponderance of the evidence
16 that such person is other than one that transports or supplies petroleum
17 and exercised due care with respect to the petroleum concerned, taking
18 into consideration the characteristics of such petroleum, in light of
19 all relevant facts and circumstances, and took precautions against fore-
20 seeable acts or omissions of any such third party and the consequences
21 that could foreseeably result from such acts or omissions; or any combi-
22 nation of them. For purposes of this paragraph, the term, "contractual
23 relationship," includes, but is not limited to, land contracts, deeds or
24 other instruments transferring title or possession, unless the property
25 on which the discharge concerned is located was acquired by such person
26 after the discharge on, in, or at such property, and such person estab-
27 lishes one or more of the circumstances described in subparagraph (i),
28 (ii) or (iii) of this paragraph by a preponderance of the evidence:
93 12021-01-1
1 (i) At the time such person acquired the property such person did not
2 know and had no reason to know that any petroleum was discharged on, in,
3 or at the property. To establish that such person had no reason to know,
4 such person must have undertaken, at the time of acquisition, all appro-
5 priate inquiry into the previous ownership and uses of the property
6 consistent with good commercial or customary practice in an effort to
7 minimize liability. For purposes of the preceding sentence, the commis-
8 sioner shall take into account any specialized knowledge or experience
9 on the part of such person, the relationship of the purchase price to
10 the value of the property if uncontaminated, commonly known or reason-
11 ably ascertainable information about the property, the obviousness of
12 the presence or likely presence of contamination at the property, and
13 the ability to detect such contamination by appropriate inspection; or
14 (ii) Such person is a government entity which acquired the property by
15 escheat, or through any other involuntary transfer or acquisition; or
16 (iii) Such person acquired the property by inheritance or bequest, and
17 that such person exercised due care with respect to the petroleum
18 concerned, taking into consideration the characteristics of such petro-
19 leum, in light of all relevant facts and circumstances and took precau-
20 tions against foreseeable acts or omissions of any such third party and
21 the consequences that could foreseeably result from such acts or omis-
22 sions.
23 (f) Nothing in this subdivision shall diminish the liability of any
24 previous owner or operator of the property who would otherwise be liable
25 under this subdivision. Notwithstanding this paragraph, if such person
26 obtained actual knowledge of the discharge at the property when such
27 person owned the property and then subsequently transferred ownership of
28 the property to another person without disclosing such knowledge, such
94 12021-01-1
1 person shall be treated as a person responsible for the discharge and no
2 defense under this paragraph shall be available to such person. Nothing
3 in this paragraph shall affect the liability under this subdivision of a
4 person who, by any act or omission, caused or contributed to such
5 discharge of petroleum.
6 § 28. Subdivision 5 of section 180 of the navigation law, as amended
7 by chapter 35 of the laws of 1985, is amended and a new subdivision 6 is
8 added to read as follows:
9 5. To disburse moneys from the fund for cleanup and removal costs
10 pursuant to a certification of claims by the commissioner . ;
11 6. To submit on an annual basis to the governor and legislature within
12 sixty days of the end of the state fiscal year an independent audit of
13 the New York environmental protection and spill compensation fund.
14 § 29. Subdivision 4 of section 181 of the navigation law, as amended
15 by chapter 458 of the laws of 1978, is amended and a new subdivision 7
16 is added to read as follows:
17 4. An Notwithstanding subdivision one of this section and subdivi-
18 sions one, two, three and four of section one hundred seventy-two-a of
19 this article, an act or omission caused solely by war, sabotage, or
20 governmental negligence shall be the only defenses which may be raised
21 by any owner or operator of a major facility or vessel responsible for a
22 discharge in any action arising under the provisions of this article.
23 7. Notwithstanding the foregoing, a person receiving a liability
24 exemption or liability limitation under subdivision one of this section
25 or under subdivision one, two, three or four of section one hundred
26 seventy-two-a of this article shall be deemed to have waived any claim
27 pursuant to subdivision two of this section that such person may have
95 12021-01-1
1 against the New York environmental protection and spill compensation
2 fund.
3 § 30. Section 183 of the navigation law, as added by chapter 845 of
4 the laws of 1977, is amended to read as follows:
5 § 183. Settlements. 1. The administrator shall attempt to promote and
6 arrange a settlement between the claimant and the person responsible for
7 the discharge. If the source of the discharge can be determined and
8 liability is conceded, the claimant and the alleged discharger may agree
9 to a settlement which shall be final and binding upon the parties and
10 which will waive all recourse against the fund.
11 2. After the successful implementation of an order on consent which
12 provides for the cleanup and removal of the discharge, the person
13 subject to the order shall submit to the department a written certif-
14 ication prepared by an individual licensed or otherwise authorized in
15 accordance with article one hundred forty-five of the education law to
16 practice the profession of engineering who shall have been in charge of
17 the implementation of the cleanup and removal activities undertaken
18 pursuant to such order substantiating that, at a minimum, such remedial
19 activities satisfied the remedial requirements set forth in such order.
20 3. Upon the department's receipt of such certification, the department
21 shall review the final engineering report and the data submitted pursu-
22 ant to the order as well as any other relevant information regarding the
23 discharge. The department shall provide the person, upon its satisfac-
24 tion that the remedial requirements for the discharge have been
25 achieved, with a covenant not to sue, binding upon the state, for any
26 liability, including any future liability or claim for the further
27 cleanup or removal of petroleum relating to the discharge that was the
28 subject of such order except that a person responsible for the cleanup
96 12021-01-1
1 and removal of the discharge pursuant to section one hundred eighty-one
2 of this article shall not receive a release for natural resource
3 damages. Additionally, the state nonetheless shall reserve all of its
4 rights concerning, and such covenant shall not extend to, any further
5 investigation or remedial action the department deems necessary, as a
6 result of:
7 (a) a failure to comply with the terms and conditions of the order;
8 (b) a fraudulent demonstration that the cleanup levels identified in
9 the order were reached;
10 (c) a release or threatened release at the site subsequent to the
11 effective date of the order;
12 (d) a change in the site's use subsequent to the effective date of the
13 order to a use requiring a lower level of residual contamination unless
14 additional remedial activities are undertaken which shall meet the stan-
15 dard for protection of public health and the environment that applies to
16 remedial actions for such use under this article;
17 (e) information received, in whole or in part, after the department's
18 execution of such order, which indicates that the cleanup and removal
19 performed, or to be performed, under such order will not be, or is not,
20 protective of public health or the environment for such use of the site;
21 or
22 (f) the department determines that the remedy implemented is not
23 protective of public health or the environment.
24 4. The reservation contained in paragraph (d) of subdivision three of
25 this section shall not be reserved in the event a person remediates soil
26 contamination to soil category 1, as that term is described in paragraph
27 a of subdivision three of section 27-1316 of the environmental conserva-
28 tion law.
97 12021-01-1
1 5. The reservation contained in paragraph (f) of subdivision three of
2 this section shall not be reserved for a person who is not responsible
3 for the cleanup and removal of the discharge pursuant to applicable
4 principles of statutory or common law liability, or who is liable solely
5 as a result of ownership or operation of the affected site subsequent to
6 the disposal of hazardous waste or the discharge of petroleum, in the
7 event that such person remediates soil contamination to soil category 1,
8 as that term is described in paragraph a of subdivision three of section
9 27-1316 of the environmental conservation law.
10 6. The covenant not to sue issued pursuant to this section shall
11 extend to the person's successors or assigns through acquisition of
12 title to the site to which the liability release applies and to a person
13 who develops or otherwise occupies the site, provided that such persons
14 act in good faith to adhere to the requirements of such order and work-
15 plan. However, such covenant does not extend, and cannot be transferred,
16 to a person who is responsible as of the date of the issuance of an
17 order on consent for the discharge of petroleum according to section one
18 hundred eighty-one of this article unless that person was party to the
19 order on which such covenant was based. A notice of the order containing
20 such covenant shall be recorded and indexed as a declaration of covenant
21 in the office of the recording officer for the county or counties where
22 such site is located in the manner prescribed by article nine of the
23 real property law within thirty days of signing the order if the person
24 is an owner or within thirty days of acquiring title of the site if the
25 person is a prospective purchaser.
26 7. The provisions of this title shall not affect an action or a claim,
27 including a claim for contribution, that a person who implements or
28 completes an order executed by such person and the department providing
98 12021-01-1
1 for the cleanup and removal of the discharge pursuant to this article
2 has or may have against a third party.
3 8. Nothing in this section shall be construed to affect either the
4 liability of any person with respect to any costs, damages, or investi-
5 gative or remedial activities that are not included in the order; or the
6 department's authority to maintain an action or proceeding against any
7 person who is not subject to the order.
8 9. A person who has settled its liability to the department under this
9 section shall not be liable for claims for contribution regarding
10 matters addressed in the order. Such settlement does not discharge any
11 of the persons responsible under law for the cleanup and removal of the
12 discharge unless its terms so provide, but it reduces the potential
13 liability of the others by the amount of the settlement.
14 10. Nothing in this section shall be construed to affect the authority
15 of the department to reach settlement with other persons consistent with
16 its authority under applicable law.
17 § 31. Subdivisions 24, 25 and 26 of section 1281 of the public
18 authorities law, subdivision 24 as amended by chapter 857 of the laws of
19 1982, subdivision 25 as amended by chapter 295 of the laws of 1994 and
20 subdivision 26 as added by chapter 282 of the laws of 1979, are amended
21 to read as follows:
22 24. "Hazardous waste" shall mean a waste which appears on the list or
23 satisfies the characteristics promulgated by the commissioner of envi-
24 ronmental conservation pursuant to section 27-0903 of the environmental
25 conservation law and until, but not after, the promulgation of such
26 list, a waste or combination of wastes, which because of its quantity,
27 concentration, or physical, chemical or infectious characteristics may:
99 12021-01-1
1 a. Cause, or significantly contribute to an increase in mortality or
2 an increase in serious irreversible or incapacitating reversible
3 illness; or
4 b. Pose a substantial present or potential hazard to human health or
5 the environment when improperly treated, stored, transported, disposed
6 or otherwise managed have the same meaning as set forth in section
7 27-1301 of the environmental conservation law.
8 25. "Inactive hazardous waste disposal site" shall mean any area or
9 structure used for the long term storage or final placement of hazardous
10 waste including, but not limited to, dumps, landfills, lagoons and arti-
11 ficial treatment ponds, as to which area or structure no permit or
12 authorization issued by the department of environmental conservation or
13 a federal agency for the disposal of hazardous waste was in effect after
14 the effective date of this title and any inactive area or structure on
15 the National Priorities List established under the authority of 42
16 U.S.C.A. Section 9605 have the same meaning as set forth in section
17 27-1301 of the environmental conservation law.
18 26. "Inactive hazardous waste disposal site remedial program" shall
19 mean activities undertaken to eliminate, remove, abate, control or
20 monitor health and/or environmental hazards or potential hazards in
21 connection with inactive hazardous waste disposal sites or to treat or
22 dispose of wastes and waste contaminated materials from such sites
23 including, but not limited to, grading, contouring, trenching, grouting,
24 capping, excavation, transporting, incineration, chemical treatment,
25 biological treatment or the construction of leachate collection and
26 treatment facilities have the same meaning as set forth in section
27 27-1301 of the environmental conservation law.
100 12021-01-1
1 § 32. Section 1389-a of the public health law, as added by chapter 282
2 of the laws of 1979, subdivision 1 as amended by chapter 857 of the laws
3 of 1982 and subdivision 2 as amended by chapter 295 of the laws of 1994,
4 is amended to read as follows:
5 § 1389-a. Definitions. 1. "Hazardous waste" means a waste which
6 appears on the list or satisfies the characteristics promulgated by the
7 commissioner of environmental conservation pursuant to section 27-0903
8 of the environmental conservation law and until, but not after, the
9 promulgation of such list, or a waste or combination of wastes, which
10 because of its quantity, concentration, or physical, chemical or infec-
11 tious characteristics may:
12 a. Cause, or significantly contribute to an increase in mortality or
13 an increase in serious irreversible or incapacitating reversible
14 illness; or
15 b. Pose a substantial present or potential hazard to human health or
16 the environment when improperly treated, stored, transported, disposed
17 or otherwise managed hazardous waste as defined in section 27-1301 of
18 the environmental conservation law.
19 2. "Inactive hazardous waste disposal site" means any area or struc-
20 ture used for the long term storage or final placement of hazardous
21 waste including, but not limited to, dumps, landfills, lagoons and arti-
22 ficial treatment ponds, as to which area or structure no permit or
23 authorization issued by the department of environmental conservation or
24 a federal agency for the disposal of hazardous waste was in effect after
25 the effective date of this title and any inactive area or structure on
26 the National Priorities List established under the authority of 42
27 U.S.C.A. Section 9605 an inactive hazardous waste disposal site as that
101 12021-01-1
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
102 12021-01-1
1 other measure to preserve, protect, or prepare such site prior to sale
2 or disposition, if the person seeks to sell, re-lease (in the case of a
3 lease finance transaction), or otherwise divest the person of such site
4 at the earliest practicable commercially reasonable time, on commercial-
5 ly reasonable terms, taking into account market conditions and legal and
6 regulatory requirements. For purposes of this paragraph:
7 (i) the term "participate in management" means actually participating
8 in the management or operational affairs of such site; and does not
9 include merely having the capacity to influence, or the unexercised
10 right to control, such site's operations;
11 (ii) a person that is a lender and that holds indicia of ownership
12 primarily to protect a security interest in such site shall be consid-
13 ered to participate in management only if, while the borrower is still
14 in possession of such site, the person exercises decisionmaking control
15 over the environmental compliance related to such site, such that the
16 person has undertaken responsibility for the hazardous waste handling or
17 disposal practices related to such site; or exercises control at a level
18 comparable to that of a manager of such site, such that the person has
19 assumed or manifested responsibility for the overall management of such
20 site encompassing day-to-day decisionmaking with respect to environ-
21 mental compliance; or over all or substantially all of the operational
22 functions (as distinguished from financial or administrative functions)
23 of such site other than the function of environmental compliance;
24 (iii) the term "participate in management" does not include performing
25 an act or failing to act prior to the time at which a security interest
26 is created in such site;
27 (iv) the term "participate in management" does not include holding a
28 security interest or abandoning or releasing a security interest;
103 12021-01-1
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,
104 12021-01-1
1 accounts receivable officer, personal manager, comptroller, or chief
2 financial officer, or a similar function;
3 (vii) the terms "foreclosure" and "foreclose" mean, respectively,
4 acquiring and to acquire, such site through purchase at sale under a
5 judgement or decree, power of sale, or nonjudicial foreclosure sale; a
6 deed in lieu of foreclosure, or similar conveyance from a trustee; or
7 repossession, if such site was security for an extension of credit
8 previously contracted; conveyance pursuant to an extension of credit
9 previously contracted, including the termination of a lease agreement;
10 or any other formal or informal manner by which the person acquires, for
11 subsequent disposition, title to or possession of such site in order to
12 protect the security interest of the person;
13 (viii) the term "lender" means an insured depository institution (as
14 defined in 12 USC section 1813); an insured credit union (as defined in
15 12 USC section 1752); a bank or association chartered under the Farm
16 Credit Act of 1971 (12 U.S.C. 2001 et seq.); a leasing or trust company
17 that is an affiliate of an insured depository institution; any person
18 (including a successor or assignee of any such person) that makes a bona
19 fide extension of credit to or takes or acquires a security interest
20 from a nonaffiliated person; the Federal National Mortgage Association,
21 the Federal Home Loan Mortgage Corporation, the Federal Agricultural
22 Mortgage Corporation, or any other entity that in a bona fide manner
23 buys or sells loans or interests in loans; a person that insures or
24 guarantees against a default in the repayment of an extension of credit,
25 or acts as a surety with respect to an extension of credit, to a nonaf-
26 filiated person; and a person that provides title insurance and that
27 acquires such site as a result of assignment or conveyance in the course
28 of underwriting claims and claims settlements;
105 12021-01-1
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;
106 12021-01-1
1 (B) acquisitions by the state or a public corporation, or its agent,
2 acting as a conservator or receiver pursuant to a clear and direct stat-
3 utory mandate or regulatory authority;
4 (C) acquisitions of assets through foreclosure and its equivalents, or
5 otherwise, by the state or a public corporation in the course of admin-
6 istering a loan, loan guarantee or loan insurance program;
7 (D) acquisitions by the state or a public corporation pursuant to
8 seizure or forfeiture authority; and
9 (E) acquisitions by the state or a public corporation as the result of
10 tax delinquency purposes, provided, that such ownership or control is
11 not retained primarily for investment purposes.
12 (iii) "management participation" means that the state or public corpo-
13 ration is actually participating in the management or operation of the
14 property but does not include the mere capacity to influence, ability to
15 influence or unexercised right to control the operation of the property.
16 Nothing contained in this paragraph affects the applicability of para-
17 graph a of this subdivision in favor of a holder of a security interest
18 according to the terms thereof.
19 c. Such term includes any person owning or operating an inactive
20 hazardous waste disposal site, including a fiduciary; provided, however,
21 that such liability on the part of a fiduciary shall not exceed the
22 assets held in the fiduciary capacity if such person is not liable inde-
23 pendently of such person's ownership as a fiduciary or actions taken in
24 a fiduciary capacity including, but not limited to, the fiduciary negli-
25 gently causing or contributing to the release or threatened release of
26 hazardous waste at such site.
27 (i) For purposes of this paragraph:
107 12021-01-1
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.
108 12021-01-1
1 (iii) Nothing in this paragraph applies to a person if that person
2 acts in a capacity other than that of a fiduciary or in a beneficiary
3 capacity and in that capacity, directly or indirectly benefits from a
4 trust or fiduciary relationship; or is a beneficiary and a fiduciary
5 with respect to the same fiduciary estate and as a fiduciary, receives
6 benefits that exceed customary or reasonable compensation, and inci-
7 dental benefits, permitted under other applicable law.
8 d. Such term includes any person owning or operating an inactive
9 hazardous waste disposal site, including an industrial development agen-
10 cy created under the general municipal law, other than one that holds
11 bare legal title to such site; has not participated with any party
12 responsible under law for the remediation of contamination in, on, or
13 from such site to attempt to have such a party avoid its remedial
14 liability; has not exercised any contractual rights it may have or had,
15 if any, under the lease, guarantee, or any other financing agreement
16 pursuant to which the industrial development agency would assume control
17 over the actual operation of the site; and has not taken possession or
18 control of the site. Nothing in this paragraph affects the rights or
19 immunities or other defenses that are available under law that are
20 applicable to an industrial development agency; or creates any liability
21 for a person or a private right of action against an industrial develop-
22 ment agency or any other person.
23 5. "Waste" means any garbage, refuse, sludge from a waste treatment
24 plant, water supply treatment plant, or air pollution control facility,
25 and other discarded material, whether or not such material may eventual-
26 ly be used for some other purpose, including solid, liquid, semisolid,
27 or contained gaseous material resulting from industrial, commercial,
28 mining and agricultural operations or from community activities, and
109 12021-01-1
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 § 33. 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
110 12021-01-1
1 the significant threat to the environment attributable to hazardous
2 waste disposed at an inactive hazardous waste disposal site was caused
3 solely by an act of God; an act of war; or an act or omission of a third
4 party other than an employee or agent of such person, or than one whose
5 act or omission occurs in connection with a contractual relationship,
6 existing directly or indirectly, with such person (except where the sole
7 contractual arrangement arises from a published tariff and acceptance
8 for carriage by a common carrier or rail), if such person establishes by
9 a preponderance of the evidence that such person exercised due care with
10 respect to the hazardous waste concerned, taking into consideration the
11 characteristics of such hazardous waste, in light of all relevant facts
12 and circumstances and took precautions against foreseeable acts or omis-
13 sions of any such third party and the consequences that could foresee-
14 ably result from such acts or omissions; or any combination of them. For
15 purposes of this paragraph, the term, "contractual relationship,"
16 includes, but is not limited to, land contracts, deeds or other instru-
17 ments transferring title or possession, unless the real property on
18 which the site concerned is located was acquired by such person after
19 the disposal or placement of the hazardous waste on, in, or at such
20 site, and such person establishes one or more of the circumstances
21 described in subparagraph (i), (ii) or (iii) of this paragraph by a
22 preponderance of the evidence:
23 (i) At the time such person acquired the site such person did not know
24 and had no reason to know that any hazardous waste which is the subject
25 of the significant threat determination was disposed of on, in, or at
26 the site. To establish that such person has no reason to know, such
27 person must have undertaken, at the time of acquisition, all appropriate
28 inquiry into the previous ownership and uses of such site consistent
111 12021-01-1
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 § 34. Section 1389-e of the public health law is REPEALED.
19 § 35. 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 § 36. 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) of subdivision 3 as added by chapter 413 of the laws of 1996, para-
112 12021-01-1
1 graph (e) of subdivision 3 as amended by chapter 9 of the laws of 1994,
2 subdivision 6 as amended by chapter 38 of the laws of 1985, paragraph
3 (a) of subdivision 12 as amended by section 13 of part C of chapter 389
4 of the laws of 1997 and subdivision 3 as amended and subdivisions 13, 14
5 and 15 as added by chapter 512 of the laws of 1986, are amended and
6 three new subdivisions 15, 16 and 17 are added to read as follows:
7 1. There is hereby established in the custody of the state comptroller
8 a nonlapsing revolving fund to be known as the "hazardous waste remedial
9 fund" which shall consist of a "site investigation and construction
10 account" and , an "industry fee transfer account," and an "environ-
11 mental restoration project account," and a "hazardous waste cleanup
12 account".
13 2. Such fund shall consist of all of the following:
14 (a) all moneys appropriated for transfer transferred to the fund's
15 site investigation and construction account; (b) all fines and other
16 sums accumulated in the fund prior to April first, nineteen hundred
17 eighty-eight pursuant to section 71-2725 of the environmental conserva-
18 tion law for deposit in the fund's site investigation and construction
19 account; (c) all moneys collected or received by the department of
20 taxation and finance pursuant to section 27-0923 of the environmental
21 conservation law for deposit in the fund's industry fee transfer
22 account; (d) all moneys paid into the fund pursuant to section 72-0201
23 of the environmental conservation law which shall be deposited in the
24 fund's industry fee transfer account; (e) all moneys paid into the fund
25 pursuant to section one hundred eighty-six of the navigation law which
26 shall be deposited in the fund's industry fee transfer account; (f)
27 (d) all moneys paid into the fund by municipalities for repayment of
28 landfill closure loans made pursuant to former title five of article
113 12021-01-1
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-xxx of this chap-
7 ter, to the fund's hazardous waste cleanup account; and (g) other moneys
8 credited or transferred thereto from any other fund or source for depos-
9 it in the fund's site investigation and construction account.
10 3. Moneys of the hazardous waste remedial fund except monies in the
11 industry fee transfer account, when allocated, shall be available to
12 the department of environmental conservation all state departments and
13 agencies for the following purposes:
14 (a) inactive hazardous waste disposal site remedial programs pursuant
15 to section 27-1313 of the environmental conservation law and section
16 thirteen hundred eighty-nine-b of the public health law;
17 (b) cleaning up or restoring to its original state any area where
18 hazardous wastes were disposed of or possessed unlawfully in violation
19 of article twenty-seven of the environmental conservation law. For the
20 purposes of this section "the original state of the area" shall mean the
21 reasonably ascertainable condition of the property immediately prior to
22 the unlawful disposal or, if it is impracticable to determine such
23 condition, then it is the reasonable environmentally sound condition of
24 the area;
25 (c) inactive hazardous waste site identification, classification and
26 investigation actions including testing, analyses, record searches and
27 other expenditures necessary to develop the state inactive hazardous
114 12021-01-1
1 waste disposal site remedial plan required pursuant to section 27-1305
2 of the environmental conservation law;
3 (d) financing the non-federal share of the cost of clean up, and site
4 remediation activities as well as post-closure operation and maintenance
5 costs, pursuant to the federal Comprehensive Environmental Response,
6 Compensation and Liability Act of 1980;
7 (e) emergency response action to clean up spills or abate other public
8 health or environmental hazards involving hazardous wastes except those
9 provided for under the New York state environmental protection and spill
10 compensation fund;
11 (f) the study of hazardous substance waste disposal sites pursuant to
12 section 27-1316 of the environmental conservation law and section one
13 thousand three hundred eighty-nine-e of the public health law; and
14 (g) to undertake such remedial measures as the department of environ-
15 mental conservation may determine necessary due to environmental condi-
16 tions related to the property subject to an agreement to provide state
17 assistance under title five of article fifty-six of the environmental
18 conservation law that were unknown to such department at the time of its
19 approval of such agreement which indicates that conditions on such prop-
20 erty are not sufficiently protective of human health for its reasonably
21 anticipated uses or due to information received, in whole or in part,
22 after such department's approval of such agreement's final engineering
23 report and certification, which indicates that such agreement's remedial
24 activities are not sufficiently protective of human health for such
25 property's reasonably anticipated uses; and, respecting the monies in
26 the environmental restoration project account in excess of ten million
27 dollars, shall provide state assistance under title five of article
28 fifty-six of the environmental conservation law;
115 12021-01-1
1 (g) with respect to moneys in the hazardous waste cleanup account, to
2 pay the reasonable costs incurred by the state in negotiating and over-
3 seeing implementation of voluntary agreements and conducting remediation
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 thirteen of this
23 section are imposed, estimate the amount of revenues to be received by
24 the industry fee transfer account of this fund in the next succeeding
25 twenty months and the transfers which will be required to be made during
26 the same period. When calculating the estimate of industry fee transfer
27 account revenues available for the purpose of certifying, pursuant to
28 this subdivision, when such account's balance will be insufficient to
116 12021-01-1
1 make the transfer required by subdivision eleven of this section, the
2 comptroller shall add to the amount estimated to actually be available
3 an additional credit factor as determined by paragraph (b) of this
4 subdivision. If the comptroller determines that the industry fee trans-
5 fer account will, at any time during the succeeding twenty month period,
6 lack sufficient funds to make the transfer required by subdivision elev-
7 en of this section, the comptroller shall so certify to the state super
8 fund management board, created pursuant to section 27-1319 of the envi-
9 ronmental conservation law, and to the governor and the legislature.
10 13. Upon the receipt of a certification provided pursuant to subdivi-
11 sion twelve of this section, the state superfund management board shall
12 review and analyze the historical pattern of revenue received by the
13 industry fee transfer account and the long term projection of future
14 transfers from such account, and shall report on or before December
15 first of such year to the governor and the legislature its recommenda-
16 tions, if any, as to the sources of additional revenues which could be
17 used to supplement the revenues to be received by such fund in order to
18 achieve the equal sharing of debt service costs as implemented in subdi-
19 vision nine of this section.
20 14. In the absence of further direction by law, effective April first
21 of the fiscal year immediately following the certification by the comp-
22 troller made pursuant to subdivision twelve of this section, surcharges
23 in the following amount shall be imposed: (a) twenty-five percent of the
24 fees imposed by sections 72-0402 and 72-0502 of the environmental
25 conservation law. Notwithstanding any other provision of law to the
26 contrary, moneys collected from such surcharge shall be deposited in
27 their entirety to the industry fee transfer account established pursuant
28 to subdivision one of this section; (b) fifty percent of the fees
117 12021-01-1
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
118 12021-01-1
1 subdivision fifteen of this section, all moneys currently deposited in
2 the industry fee transfer account of the hazardous waste remedial fund
3 pursuant to subdivision two of this section shall be deposited in the
4 remedial program transfer fund. Further, effective April first of the
5 state fiscal year following such certification, subdivisions thirteen
6 and fourteen of this section shall be deemed repealed.
7 17. Notwithstanding any law to the contrary, and in accordance with
8 section four of this chapter, the comptroller is hereby authorized and
9 directed, upon the request of the director of the budget, to transfer
10 moneys from the site investigation and construction account of the
11 hazardous waste remedial fund to the hazardous waste cleanup account of
12 the hazardous waste remedial fund.
13 § 37. The state finance law is amended by adding a new section 97-xxx
14 to read as follows:
15 § 97-xxx. Remedial program transfer fund. 1. There is hereby estab-
16 lished in the joint custody of the comptroller and the commissioner of
17 taxation and finance a special fund to be known as the "remedial program
18 transfer fund".
19 2. Such fund shall consist of all of the following:
20 (a) registration fees collected pursuant to subdivision two of section
21 17-1009 of the environmental conservation law for deposit in this fund;
22 (b) all license fees, fines and penalties collected pursuant to para-
23 graph (b) of subdivision one and paragraph (a) of subdivision four of
24 section one hundred seventy-four of the navigation law, penalties
25 collected pursuant to paragraphs (b) and (c) of subdivision four of
26 section one hundred seventy-four-a of the navigation law, moneys
27 collected pursuant to section one hundred eighty-seven of the navigation
119 12021-01-1
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.
120 12021-01-1
1 3. Notwithstanding any law to the contrary, and in accordance with
2 section four of this chapter, the comptroller is hereby authorized and
3 directed, upon the request of the director of the budget, for each state
4 fiscal year to transfer from the general fund to this fund up to an
5 amount equivalent to the projected amount of moneys to be deposited or
6 transferred into this fund pursuant to paragraphs (a), (b), (c), (d),
7 (e), (f), (g), (h), (i) and (l) of subdivision two of this section for
8 each such state fiscal year.
9 4. Revenues in the remedial program transfer fund shall be kept sepa-
10 rate and shall not be commingled with any other moneys in the custody of
11 the comptroller. All deposits of such revenues shall, if required by the
12 comptroller, be secured by obligations of the United States or of the
13 state having a market value equal at all times to the amount of such
14 deposits and all banks and trust companies are authorized to give secu-
15 rity for such deposits. Any such revenues in such fund may, upon the
16 discretion of the comptroller, be invested in obligations in which the
17 comptroller is authorized to invest pursuant to section ninety-eight of
18 this article.
19 5. Notwithstanding any law to the contrary, and in accordance with
20 section four of this chapter, the comptroller is hereby authorized and
21 directed, upon the request of the director of the budget, to transfer
22 moneys deposited in the remedial program transfer fund, and interest
23 accrued thereon, to the environmental protection and oil spill compen-
24 sation fund or to the hazardous waste cleanup account of the hazardous
25 waste remedial fund.
26 § 38. Paragraph (a) of subdivision 2 of section 179 of the navigation
27 law, as amended by chapter 83 of the laws of 1995, is amended and a new
28 subdivision 3 is added to read as follows:
121 12021-01-1
1 (a) An account which shall be credited with all license fees and
2 penalties collected pursuant to paragraph (b) of subdivision one and
3 paragraph (a) of subdivision four of section one hundred seventy-four of
4 this article, penalties collected pursuant to paragraph (b) of subdivi-
5 sion four of section one hundred seventy-four-a of this article, money
6 collected pursuant to section one hundred eighty-seven of this article,
7 all penalties collected pursuant to section one hundred ninety-two of
8 this article, all moneys transferred from the remedial program transfer
9 fund pursuant to subdivision five of section ninety-seven-xxx of the
10 state finance law for deposit in the New York environmental protection
11 and spill compensation fund and registration fees collected pursuant to
12 subdivision two of section 17-1009 of the environmental conservation
13 law.
14 3. Notwithstanding any general or special law to the contrary, all
15 monies collected pursuant to paragraph (b) of subdivision one and para-
16 graph (a) of subdivision four of section one hundred seventy-four of
17 this article, penalties collected pursuant to paragraph (c) of subdivi-
18 sion one and paragraph (b) of subdivision four of section one hundred
19 seventy-four of this article effective April first of the state fiscal
20 year succeeding the state fiscal year certified in subdivision fifteen
21 of section ninety-seven-b of the state finance law, penalties collected
22 pursuant to paragraphs (b) and (c) of subdivision four of section one
23 hundred seventy-four-a of this article, money collected pursuant to
24 section one hundred eighty-seven of this article, all penalties
25 collected pursuant to section one hundred ninety-two of this article,
26 and registration fees collected pursuant to subdivision two of section
27 17-1009 of the environmental conservation law shall be deposited in the
122 12021-01-1
1 remedial program transfer fund in the fiscal year beginning April first,
2 two thousand one, and for each fiscal year thereafter.
3 § 39. Subdivision 2 of section 17-1009 of the environmental conserva-
4 tion law, as amended by chapter 83 of the laws of 1995, is amended to
5 read as follows:
6 2. All owners shall register the facility with the department. The
7 department is authorized to assess a fee according to a schedule based
8 on the size and type of facility, not to exceed two hundred fifty five
9 hundred dollars per facility. Such fee shall be paid at the time of
10 registration or registration renewal. Registration shall be renewed
11 every five years or whenever title to a facility is transferred, which-
12 ever occurs first. All fees collected pursuant to this subdivision
13 shall be deposited in the New York environmental and spill compensation
14 fund established pursuant to section one hundred seventy-nine of the
15 navigation law . ; provided, however, that such fees shall be deposited
16 in the remedial program transfer fund in the fiscal year beginning April
17 first, two thousand one, and for each fiscal year thereafter. The owner
18 must submit with each application for registration or registration
19 renewal, a five-year fee as follows:
20 Combined Storage Capacity at Facility 5- Year Fee
21 Greater than 1,000 to 2,000 gallons $100 per facility
22 Greater than 2,000 gallons to $300 per facility
23 Less than 5,000 gallons
24 5,000 gallons to less than 400,000 gallons $500 per facility
25 § 40. Subdivision 3 of section 362 of chapter 83 of the laws of 1995
26 amending the state finance law and other laws relating to bonds, notes
27 and revenues, as amended by section 2 of part E of chapter 413 of the
28 laws of 1999, is amended to read as follows:
123 12021-01-1
1 3. Sections fifteen through seventeen of this act shall take effect
2 immediately and shall be deemed to have been in full force and effect on
3 and after April 1, 1995 , and shall expire and be deemed repealed April
4 1, 2004 ;
5 § 41. Paragraph b of subdivision 1 of section 71-2725 of the environ-
6 mental conservation law, as amended by chapter 60 of the laws of 1993,
7 is amended to read as follows:
8 b. All penalties and fines collected pursuant to sections 71-2705,
9 71-2721 and 71-2723 of this title shall be paid into the general fund
10 to the credit of the state purposes account to the credit of the reme-
11 dial program transfer fund established by section ninety-seven-xxx of
12 the state finance law.
13 § 42. Paragraph b of subdivision 1, subdivision 9 and paragraph a of
14 subdivision 11 of section 72-0201 of the environmental conservation law,
15 paragraph b of subdivision 1 and subdivision 9 as added by chapter 38 of
16 the laws of 1985 and paragraph a of subdivision 11 as amended by section
17 24 of part A of chapter 58 of the laws of 1998, are amended and subdivi-
18 sion 1 is amended by adding a new paragraph e to read as follows:
19 b. Notwithstanding any general or special law to the contrary, one-
20 half of all monies collected by the department pursuant to section
21 72-0402 and section 72-0502 of this article shall be deposited in the
22 hazardous waste remedial program transfer fund, created pursuant to
23 section ninety-seven-b ninety-seven-xxx of the state finance law.
24 e. Notwithstanding any general or special law to the contrary, all
25 monies collected by the department pursuant to section 72-0403 of this
26 article shall be deposited in the remedial program transfer fund estab-
27 lished pursuant to section ninety-seven-xxx of the state finance law.
124 12021-01-1
1 9. a. In the event a penalty or interest is collected pursuant to
2 subdivision five or six of this section for fees due under section
3 72-0402, or section 72-0502 of this article, one-half of the penalty or
4 interest shall be deposited by the department in the hazardous waste
5 remedial program transfer fund.
6 b. In the event a penalty or interest is collected pursuant to subdi-
7 vision five or six of this section for fees due under section 72-0403 of
8 this article, such penalty or interest shall be deposited in the remedi-
9 al program transfer fund.
10 a. All fees collected pursuant to this article except fees collected
11 pursuant to paragraphs b, c and d of subdivision one of this section
12 shall be paid into the environmental conservation special revenue fund
13 to the credit of the environmental regulatory account, unless herein
14 provided otherwise.
15 § 43. Section 72-0202 of the environmental conservation law is amended
16 by adding a new subdivision 4 to read as follows:
17 4. Bills issued for the hazardous waste generator remedial program
18 surcharge due for the state fiscal year beginning April first, two thou-
19 sand one shall cover the period April first, two thousand one through
20 December thirty-first, two thousand one. The surcharge for the period
21 April first, two thousand one through December thirty-first, two thou-
22 sand one shall be equal to three-quarters of the amount calculated in
23 the manner prescribed by section 72-0403 of this article. Hazardous
24 waste generator remedial program surcharges for periods beginning after
25 December thirty-first, two thousand one shall be calculated based upon
26 the calendar year.
27 § 44. The environmental conservation law is amended by adding a new
28 section 72-0403 to read as follows:
125 12021-01-1
1 § 72-0403. Remedial program surcharges.
2 1. All generators shall submit annually to the department a fee in the
3 amount to be determined as follows:
4 a. Four thousand dollars for generators of equal to or greater than
5 fifteen tons per year and less than or equal to twenty-five tons per
6 year of hazardous waste;
7 b. Nine thousand dollars for generators of greater than twenty-five
8 tons per year and less than or equal to fifty tons per year of hazardous
9 waste;
10 c. Fourteen thousand dollars for generators of greater than fifty tons
11 per year and less than or equal to seventy-five tons per year of hazard-
12 ous waste;
13 d. Nineteen thousand dollars for generators of greater than seventy-
14 five tons per year and less than or equal to one hundred tons per year
15 of hazardous waste;
16 e. Twenty-four thousand dollars for generators of greater than one
17 hundred tons per year and less than or equal to five hundred tons per
18 year of hazardous waste;
19 f. Eighty thousand dollars for generators of greater than five hundred
20 tons per year and less than or equal to one thousand tons per year of
21 hazardous waste;
22 g. Eighty-five thousand dollars for generators of greater than one
23 thousand tons per year and less than or equal to two thousand tons per
24 year of hazardous waste;
25 h. One hundred ten thousand dollars for generators of greater than two
26 thousand tons per year and less than or equal to three thousand tons per
27 year of hazardous waste;
126 12021-01-1
1 i. One hundred thirty-five thousand dollars for generators of greater
2 than three thousand tons per year and less than or equal to five thou-
3 sand tons per year of hazardous waste;
4 j. One hundred sixty thousand dollars for generators of greater than
5 five thousand tons per year and less than or equal to ten thousand tons
6 per year of hazardous waste;
7 k. Three hundred sixty thousand dollars for generators of greater than
8 ten thousand tons per year of hazardous waste;
9 l. Six thousand dollars for generators of equal to or greater than
10 fifteen tons per year of hazardous wastewater, payable in addition to
11 the fees for hazardous wastes, other than wastewater, as required by
12 this subdivision.
13 2. No fee shall be payable for waste resulting from services which are
14 provided:
15 a. under a contract with the department, or with the department's
16 approval and in compliance with department regulations, or pursuant to
17 an order of the department, the United States environmental protection
18 agency or a court, related to the cleanup or remediation of a hazardous
19 materials or hazardous waste spill, discharge, or surficial cleanup,
20 pursuant to this chapter, other than section 27-1313 of this chapter or
21 a removal action pursuant to the Comprehensive Environmental Response,
22 Compensation and Liability Act (42 U.S.C. 9601 et seq.); or
23 b. under a contract for, or with the department's approval and in
24 compliance with department regulations for, the cleanup and removal of a
25 petroleum spill or discharge, pursuant to subdivision seven of section
26 one hundred seventy-six of the navigation law; or
27 c. under the order of a court, the department or the department of
28 health, or the United States environmental protection agency related to
127 12021-01-1
1 an inactive hazardous waste disposal site pursuant to section 27-1313 of
2 this chapter, section thirteen hundred eighty-nine-b of the public
3 health law, or the Comprehensive Environmental Response, Compensation
4 and Liability Act (42 U.S.C. 9601 et seq.); or
5 d. voluntarily and without expectation of monetary compensation in
6 accordance with subdivision one of section 27-1321 of this chapter; or
7 e. under permit or order requiring corrective action pursuant to title
8 nine of article twenty-seven of this chapter or the Resource Conserva-
9 tion and Recovery Act (42 U.S.C. 6901 et seq.).
10 § 45. Paragraph b of subdivision 4 of section 27-0923 of the environ-
11 mental conservation law, as added by chapter 38 of the laws of 1985, is
12 amended to read as follows:
13 b. All moneys collected or received by the department of taxation and
14 finance pursuant to this section shall be deposited daily to the credit
15 of the comptroller with such responsible banks, banking houses or trust
16 companies as may be designated by the comptroller. Such deposits shall
17 be kept separate and apart from all other moneys in the possession of
18 the comptroller. The comptroller shall require adequate security from
19 all such depositories. Of the revenues collected under this section, the
20 comptroller shall retain in his hands such amounts as the commissioner
21 of taxation and finance may determine to be necessary for refunds under
22 this section and the comptroller shall pay any refunds to which those
23 liable for special assessments shall be entitled under the provisions of
24 this section. The comptroller, after reserving the amount to pay such
25 refunds, shall, on or before the tenth day of each month, pay all
26 special assessments, interest and penalties collected under this section
27 and remaining to his credit in such banks, banking houses or trust
28 companies at the close of business on the last day of the preceding
128 12021-01-1
1 month into the hazardous waste remedial program transfer fund created
2 pursuant to section ninety-seven-b ninety-seven-xxx of the state
3 finance law. Within thirty days after each quarterly reporting date, the
4 comptroller shall certify the amount of special assessments under this
5 section deposited in the hazardous waste remedial program transfer
6 fund during the preceding quarter and the cumulative amount collected
7 since the start of the current calendar year, and shall submit such
8 certification to the governor and the chairman of the senate finance
9 committee and the chairman of the assembly ways and means committee.
10 § 46. The tax law is amended by adding a new section 21 to read as
11 follows:
12 § 21. Brownfield redevelopment tax credit. (a) Allowance of credit.
13 (1) General. A taxpayer subject to tax under article nine, nine-A, twen-
14 ty-two, thirty-two or thirty-three of this chapter shall be allowed a
15 credit against such tax, pursuant to the provisions referenced in subdi-
16 vision (e) of this section. Such credit shall be allowed with respect
17 to a qualified site, as such term is defined in paragraph one of subdi-
18 vision (b) of this section. The amount of the credit shall be the sum of
19 the credit components specified in paragraphs two and three of this
20 subdivision.
21 (2) Site preparation credit component. The site preparation credit
22 component shall be equal to the applicable percentage of the site prepa-
23 ration costs paid or incurred by the taxpayer with respect to a quali-
24 fied site. The credit component amount so determined with respect to a
25 site's qualification for a remediation certificate shall be allowed for
26 the taxable year in which the effective date of the remediation certif-
27 icate occurs. The credit component amount determined other than with
28 respect to such qualification shall be allowed for the taxable year in
129 12021-01-1
1 which the improvement to which the applicable costs apply is placed in
2 service.
3 (3) Tangible property credit component. The tangible property credit
4 component shall be equal to the applicable percentage of the cost or
5 other basis for federal income tax purposes of tangible personal proper-
6 ty and other tangible property, including buildings and structural
7 components of buildings, which constitute qualified tangible property.
8 The credit component amount so determined shall be allowed for the taxa-
9 ble year in which such qualified tangible property is placed in service
10 on a qualified site with respect to which a remediation certificate has
11 been issued to the taxpayer. The tangible property credit component
12 shall be allowed with respect to property leased to a second party only
13 if such second party is either (i) not a party responsible for the
14 disposal of hazardous waste or the discharge of petroleum at the site
15 according to applicable principles of statutory or common law liability,
16 or (ii) a party responsible according to applicable principles of statu-
17 tory or common law liability if such party's liability arises solely
18 from operation of the site subsequent to the disposal of hazardous waste
19 or the discharge of petroleum, and is so certified by the commissioner
20 of environmental conservation at the request of the taxpayer, pursuant
21 to section 27-1413 of the environmental conservation law. Notwithstand-
22 ing any other provision of law to the contrary, in the case of allowance
23 of credit under this section to such a lessor, the commissioner shall
24 have the authority to reveal to such lessor any information, with
25 respect to the issue of qualified use of property by the lessee, which
26 is the basis for the denial in whole or in part, or for the recapture,
27 of the credit claimed by such lessor.
130 12021-01-1
1 (4) Applicable percentage. For purposes of paragraphs two and three
2 of this subdivision, the applicable percentage shall be ten percent in
3 the case of credits claimed under article nine, nine-A, thirty-two or
4 thirty-three, and eight percent in the case of credits claimed under
5 article twenty-two of this chapter. Provided, however, as provided in
6 section 27-1413 of the environmental conservation law, if the remedi-
7 ation certificate indicates that the soil on the qualified site has been
8 remediated to soil category 1 as that term is described in paragraph a
9 of subdivision three of section 27-1316 of the environmental conserva-
10 tion law, the applicable percentage shall be twelve percent in the case
11 of credits claimed under article nine, nine-A, thirty-two or thirty-
12 three, and ten percent in the case of credits claimed under article
13 twenty-two of this chapter.
14 (b) Definitions. As used in this section, the following terms shall
15 have the following meanings:
16 (1) Qualified site. A "qualified site" is a site with respect to which
17 a remediation certificate has been issued to the taxpayer by the commis-
18 sioner of environmental conservation pursuant to section 27-1413 of the
19 environmental conservation law.
20 (2) Site preparation costs. The term "site preparation costs" shall
21 mean all amounts properly chargeable to capital account, under generally
22 accepted accounting principles, (i) which are paid or incurred in
23 connection with a site's qualification for a remediation certificate,
24 and (ii) all other site preparation costs paid or incurred in connection
25 with preparing a site for the erection of a building or a component of a
26 building, or otherwise to establish a site as usable for its industrial,
27 commercial (including the commercial development of residential hous-
28 ing), recreational or conservation purposes. Site preparation costs
131 12021-01-1
1 shall include, but not be limited to, the costs of excavation, temporary
2 electric wiring, scaffolding, demolition costs, and the costs of fencing
3 and security facilities. Site preparation costs shall not include the
4 cost of acquiring the site and shall not include amounts included in the
5 cost or other basis for federal income tax purposes of qualified tangi-
6 ble property, as described in paragraph three of this subdivision.
7 (3) Qualified tangible property. "Qualified tangible property" is
8 property which:
9 (A) is depreciable pursuant to section one hundred sixty-seven of the
10 internal revenue code,
11 (B) has a useful life of four years or more,
12 (C) has been acquired by purchase as defined in section one hundred
13 seventy-nine (d) of the internal revenue code,
14 (D) has a situs on a qualified site in this state,
15 (E) is principally used by the taxpayer for industrial, commercial,
16 recreational or environmental conservation purposes (including the
17 commercial development of residential housing), and
18 (F) is placed in service within three years following the issuance of
19 a remediation certificate with respect to such qualified site.
20 (4) Remediation certificate. The term "remediation certificate" shall
21 refer to the certificate so denominated which is issued by the commis-
22 sioner of environmental conservation pursuant to section 27-1413 of the
23 environmental conservation law.
24 (5) Corporate new business. A "corporate new business" shall include
25 any corporation, except a corporation:
26 (A) over fifty percent of the number of shares of stock of which enti-
27 tling the holders thereof to vote for the election of directors or trus-
28 tees is owned or controlled, either directly or indirectly, by a taxpay-
132 12021-01-1
1 er subject to tax under article nine-A; section one hundred
2 eighty-three, one hundred eighty-four or one hundred eighty-five of
3 article nine; article thirty-two or thirty-three of this chapter; or
4 (B) which is substantially similar in operation and in ownership to a
5 business entity (or entities) taxable, or previously taxable, under
6 article nine-A; section one hundred eighty-three, one hundred eighty-
7 four, one hundred eighty-five or one hundred eighty-six of article nine;
8 article thirty-two or thirty-three of this chapter; article twenty-three
9 of this chapter or which would have been subject to tax under such arti-
10 cle twenty-three (as such article was in effect on January first, nine-
11 teen hundred eighty) or the income (or losses) of which is (or was)
12 includable under article twenty-two of this chapter whereby the intent
13 and purpose of this paragraph and the applicable provision of this chap-
14 ter relating to refunding of credit to new business would be evaded; or
15 (C) which has been subject to tax under the article or section with
16 respect to which the credit provided for under this section is claimed
17 for more than four taxable years (excluding short taxable years) prior
18 to the taxable year during which the taxpayer first becomes eligible for
19 such credit.
20 (c) Property which qualifies for the credit provided for under this
21 section and also for a credit provided for (1) under either subdivision
22 twelve or subdivision twelve-B of section two hundred ten of this chap-
23 ter, or both, (2) subsection (a) or subsection (j) of section six
24 hundred six of this chapter, or both, (3) the credit provided for under
25 subsection (i) of section fourteen hundred fifty-six of this chapter, or
26 (4) the credit provided under subdivision (q) of section fifteen hundred
27 eleven of this chapter may be the basis for either the credit provided
133 12021-01-1
1 for under this section or one of the credits enumerated in paragraph
2 one, two or three of this subdivision, but not both.
3 (d)(1) With respect to qualified tangible property which is deprecia-
4 ble pursuant to section one hundred sixty-seven of the internal revenue
5 code but is not subject to the provisions of section one hundred sixty-
6 eight of such code and which is disposed of or ceases to be in qualified
7 use prior to the end of the taxable year in which the credit is to be
8 taken, the amount of the credit shall be that portion of the credit
9 provided for in this subdivision which represents the ratio which the
10 months of qualified use bear to the months of useful life. If property
11 on which credit has been taken is disposed of or ceases to be in quali-
12 fied use prior to the end of its useful life, the difference between the
13 credit taken and the credit allowed for actual use must be added back in
14 the year of disposition. Provided, however, if such property is disposed
15 of or ceases to be in qualified use after it has been in qualified use
16 for more than twelve consecutive years, it shall not be necessary to add
17 back the credit as provided in this paragraph. The amount of credit
18 allowed for actual use shall be determined by multiplying the original
19 credit by the ratio which the months of qualified use bear to the months
20 of useful life. For purposes of this paragraph, useful life of property
21 shall be the same as the taxpayer uses for depreciation purposes when
22 computing his federal income tax liability.
23 (2) Except with respect to that property to which paragraph four of
24 this subdivision applies, with respect to qualified tangible property
25 which is three-year property, as defined in subsection (e) of section
26 one hundred sixty-eight of the internal revenue code, 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
134 12021-01-1
1 that portion of the credit provided for in this section which represents
2 the ratio which the months of qualified use bear to thirty-six. If prop-
3 erty on which credit has been taken is disposed of or ceases to be in
4 qualified use prior to the end of thirty-six months, the difference
5 between the credit taken and the credit allowed for actual use must be
6 added back in the year of disposition. The amount of credit allowed for
7 actual use shall be determined by multiplying the original credit by the
8 ratio which the months of qualified use bear to thirty-six.
9 (3) Except with respect to that property to which paragraph four of
10 this subdivision applies, with respect to qualified tangible property
11 which is subject to the provisions of section one hundred sixty-eight of
12 the internal revenue code other than three-year property as defined in
13 subsection (e) of such section one hundred sixty-eight which is disposed
14 of or ceases to be in qualified use prior to the end of the taxable year
15 in which the credit is to be taken, the amount of the credit shall be
16 that portion of the credit provided for in this section which represents
17 the ratio which the months of qualified use bear to sixty. If property
18 on which credit has been taken is disposed of or ceases to be in quali-
19 fied use prior to the end of sixty months, the difference between the
20 credit taken and the credit allowed for actual use must be added back in
21 the year of disposition. The amount of credit allowed for actual use
22 shall be determined by multiplying the original credit by the ratio
23 which the months of qualified use bear to sixty.
24 (4) With respect to any qualified tangible property to which section
25 one hundred sixty-eight of the internal revenue code applies, which is a
26 building or a structural component of a building and 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
135 12021-01-1
1 that portion of the credit provided for in this section which represents
2 the ratio which the months of qualified use bear to the total number of
3 months over which the taxpayer chooses to deduct the property under the
4 internal revenue code. If property on which credit has been taken is
5 disposed of or ceases to be in qualified use prior to the end of the
6 period over which the taxpayer chooses to deduct the property under the
7 internal revenue code, the difference between the credit taken and the
8 credit allowed for actual use must be added back in the year of disposi-
9 tion. Provided, however, if such property is disposed of or ceases to be
10 in qualified use after it has been in qualified use for more than twelve
11 consecutive years, it shall not be necessary to add back the credit as
12 provided in this paragraph. The amount of credit allowed for actual use
13 shall be determined by multiplying the original credit by the ratio
14 which the months of qualified use bear to the total number of months
15 over which the taxpayer chooses to deduct the property under the inter-
16 nal revenue code.
17 (e) Cross-references. For application of the credit provided for in
18 this section, see the following provisions of this chapter:
19 (1) Article 9: Section 187-f
20 (2) Article 9-A: Section 210, subdivision 33
21 (3) Article 22: Section 606, subsections (i) and (ff)
22 (4) Article 32: Section 1456, subsection (q)
23 (5) Article 33: Section 1511, subdivision (u).
24 § 47. The tax law is amended by adding a new section 187-f to read as
25 follows:
26 § 187-f. Brownfield redevelopment tax credit. 1. Allowance of credit.
27 A taxpayer shall be allowed a credit, to be computed as provided in
28 section twenty-one of this chapter, against the taxes imposed by
136 12021-01-1
1 sections one hundred eighty-three, one hundred eighty-four and one
2 hundred eighty-five of this article. Provided, however, that the amount
3 of such credit allowable against the tax imposed by section one hundred
4 eighty-four of this article shall be the excess of the amount of such
5 credit over the amount of any credit allowed by this section against the
6 tax imposed by section one hundred eighty-three of this article.
7 2. Carryovers. In no event shall the credit under this section be
8 allowed in an amount which will reduce the tax payable to less than the
9 applicable minimum tax fixed by section one hundred eighty-three or one
10 hundred eighty-five of this article. If, however, the amount of credit
11 allowable under this section for any taxable year reduces the tax to
12 such amount, any amount of credit not deductible in such taxable year
13 may be carried over to the following year or years and may be deducted
14 from the taxpayer's tax for such year or years. In lieu of such carry-
15 over, any such taxpayer which qualifies as a corporate new business
16 under paragraph five of subdivision (b) of section twenty-one of this
17 chapter may elect, on its report for its taxable year with respect to
18 which such credit is allowed, to treat fifty percent of the amount of
19 such carryover as an overpayment of tax to be credited or refunded in
20 accordance with the provisions of section ten hundred eighty-six of this
21 chapter. Provided, however, the provisions of subsection (c) of section
22 ten hundred eighty-eight of this chapter notwithstanding, no interest
23 shall be paid thereon.
24 § 48. Section 210 of the tax law is amended by adding a new subdivi-
25 sion 33 to read as follows:
26 33. Brownfield redevelopment tax credit. (a) Allowance of credit. A
27 taxpayer shall be allowed a credit, to be computed as provided in
137 12021-01-1
1 section twenty-one of this chapter, against the tax imposed by this
2 article.
3 (b) Carryovers. The credit and carryovers of such credit allowed under
4 this subdivision for any taxable year shall not, in the aggregate,
5 reduce the tax due for such year to less than the higher of the amounts
6 prescribed in paragraphs (c) and (d) of subdivision one of this section.
7 However, if the amount of credit or carryovers of such credit, or both,
8 allowed under this subdivision for any taxable year reduces the tax to
9 such amount, any amount of credit or carryovers of such credit thus not
10 deductible in such taxable year may be carried over to the following
11 year or years and may be deducted from the tax for such year or years.
12 In lieu of such carryover, any such taxpayer which qualifies as a corpo-
13 rate new business under paragraph five of subdivision (b) of section
14 twenty-one of this chapter may elect, on its report for its taxable year
15 with respect to which such credit is allowed, to treat fifty percent of
16 the amount of such carryover as an overpayment of tax to be credited or
17 refunded in accordance with the provisions of section ten hundred eight-
18 y-six of this chapter. Provided, however, the provisions of subsection
19 (c) of section ten hundred eighty-eight of this chapter notwithstanding,
20 no interest shall be paid thereon.
21 § 49. Paragraph 1 of subsection (i) of section 606 of the tax law, as
22 separately amended by section 4 of part I, section 47 of part Y, section
23 4 of part CC, sections 4 and 15 of part GG, section 5 of part II and
24 section 3 of part E of chapter 63 of the laws of 2000, is amended to
25 read as follows:
26 (1) For purposes of determining the application under this section of
27 the credit provisions enumerated in the following table, a shareholder
28 of a New York S corporation:
138 12021-01-1
1 (A) shall be treated as the taxpayer with respect to his or her pro
2 rata share of the corresponding credit base of such corporation, deter-
3 mined for the corporation's taxable year ending with or within the
4 shareholder's taxable year and
5 (B) shall be treated as the owner of a new business with respect to
6 such share if the corporation qualifies as a new business pursuant to
7 paragraph (j) of subdivision twelve of section two hundred ten of this
8 chapter, unless the shareholder has previously received a refund by
9 reason of the application of this subparagraph, or this subsection as it
10 was in effect for taxable years beginning before nineteen hundred nine-
11 ty-four.
12 The corporation's
13 With respect to the credit base under
14 following credit section two hundred ten
15 under this section: or section fourteen
16 hundred fifty-six of this
17 chapter is:
18 Investment tax credit Investment credit base
19 under subsection (a) or qualified
20 rehabilitation
21 expenditures under
22 subdivision twelve of
23 section two hundred ten
24 Empire zone Cost or other basis
25 investment tax credit under subdivision
139 12021-01-1
1 under subsection (j) twelve-B
2 of section two hundred
3 ten
4 Empire zone Eligible wages under
5 wage tax credit subdivision nineteen of
6 under subsection (k) section two hundred ten
7 or subsection (e) of
8 section fourteen hundred
9 fifty-six
10 Empire zone Qualified investments
11 capital tax credit and contributions under
12 under subsection (1) subdivision twenty of
13 section two hundred ten
14 or subsection (d) of
15 section fourteen hundred
16 fifty-six
17 Agricultural property tax Allowable school
18 credit under subsection (n) district property taxes under
19 subdivision twenty-two of
20 section two hundred ten
21 Credit for employment Qualified first-year wages or
22 of persons with dis- qualified second-year wages
23 abilities under under subdivision
24 subsection (o) twenty-three of section
140 12021-01-1
1 two hundred ten
2 or subsection (f)
3 of section fourteen
4 hundred fifty-six
5 Employment incentive Applicable investment credit
6 credit under subsec- base under subdivision
7 tion (a-1) twelve-D of section two
8 hundred ten
9 Empire zone Applicable investment
10 employment credit under sub-
11 incentive credit under division twelve-C
12 subsection (j-1)
13 Alternative fuels credit Cost under subdivision
14 under subsection (p) twenty-four of section two
15 hundred ten
16 Qualified emerging Applicable credit base
17 technology company under subdivision twelve-E
18 employment credit of section two hundred ten
19 under subsection (q)
20 Qualified emerging Qualified investments under
21 technology company subdivision twelve-F of
22 capital tax credit section two hundred ten
23 under subsection (r)
141 12021-01-1
1 Credit for purchase of an Cost of an automated
2 automated external defibrillator external defibrillator under
3 under subsection (s) subdivision twenty-five of
4 section two hundred ten
5 or subsection (j) of section
6 fourteen hundred fifty-six
7 Low-income housing Credit amount under
8 credit under subsection (x) subdivision thirty
9 of section two hundred ten or
10 subsection (1) of section
11 fourteen hundred fifty-six
12 Credit for transportation Amount of credit under sub-
13 improvement contributions division thirty-two of section
14 under subsection (z) two hundred ten or subsection
15 (n) of section fourteen
16 hundred fifty-six
17 IMB credit for energy Amount of credit
18 taxes under sub- under subdivision
19 section (t-1) twenty-six-a of
20 section two hundred ten
21 QEZE credit for real property Amount of credit under
22 taxes under subsection (bb) subdivision twenty-seven of
23 section two hundred ten or
24 subsection (o) of section
142 12021-01-1
1 fourteen hundred fifty-six
2 QEZE tax reduction credit Amount of credit under
3 under subsection (cc) subdivision twenty-eight of
4 section two hundred ten or
5 subsection (p) of section
6 fourteen hundred fifty-six
7 Green building credit Amount of green building credit
8 under subsection (y) under subdivision thirty-one
9 of section two hundred ten
10 or subsection (m) of section
11 fourteen hundred fifty-six
12 Credit for long-term Qualified costs under
13 care insurance premiums subdivision twenty-five-a of
14 under subsection (aa) section two hundred ten
15 or subsection (k) of section
16 fourteen hundred fifty-six
17 Brownfield redevelopment Applicable cost
18 credit under subsection or other basis
19 (ff) under subdivision
20 thirty-three of section
21 two hundred ten
22 or subsection (q) of
23 section fourteen hundred
24 fifty-six
143 12021-01-1
1 § 50. Paragraph 1 of subsection (i) of section 606 of the tax law, as
2 separately amended by section 4 of part I, section 4 of part CC,
3 sections 4 and 15 of part GG, section 5 of part II and section 3 of part
4 E of chapter 63 of the laws of 2000, is amended to read as follows:
5 (1) For purposes of determining the application under this section of
6 the credit provisions enumerated in the following table, a shareholder
7 of a New York S corporation:
8 (A) shall be treated as the taxpayer with respect to his or her pro
9 rata share of the corresponding credit base of such corporation, deter-
10 mined for the corporation's taxable year ending with or within the
11 shareholder's taxable year and
12 (B) shall be treated as the owner of a new business with respect to
13 such share if the corporation qualifies as a new business pursuant to
14 paragraph (j) of subdivision twelve of section two hundred ten of this
15 chapter, unless the shareholder has previously received a refund by
16 reason of the application of this subparagraph, or this subsection as it
17 was in effect for taxable years beginning before nineteen hundred nine-
18 ty-four.
19 The corporation's
20 With respect to the credit base under
21 following credit section two hundred ten
22 under this section: or section fourteen
23 hundred fifty-six of this
24 chapter is:
25 Investment tax credit Investment credit base
26 under subsection (a) or qualified
144 12021-01-1
1 rehabilitation
2 expenditures under
3 subdivision twelve of
4 section two hundred ten
5 Empire zone Cost or other basis
6 investment tax credit under subdivision
7 under subsection (j) twelve-B
8 of section two hundred
9 ten
10 Empire zone Eligible wages under
11 wage tax credit subdivision nineteen of
12 under subsection (k) section two hundred ten
13 or subsection (e) of
14 section fourteen hundred
15 fifty-six
16 Empire zone Qualified investments
17 capital tax credit and contributions under
18 under subsection (1) subdivision twenty of
19 section two hundred ten
20 or subsection (d) of
21 section fourteen hundred
22 fifty-six
23 Agricultural property tax Allowable school
24 credit under subsection (n) district property taxes under
145 12021-01-1
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 Empire zone Applicable investment
15 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)
146 12021-01-1
1 Qualified emerging Qualified investments under
2 technology company subdivision twelve-F of
3 capital tax credit section two hundred ten
4 under subsection (r)
5 Credit for purchase of an Cost of an automated
6 automated external defibrillator external defibrillator under
7 under subsection (s) subdivision twenty-five of
8 section two hundred ten
9 or subsection (j) of section
10 fourteen hundred fifty-six
11 Low-income housing Credit amount under
12 credit under subsection (x) subdivision thirty
13 of section two hundred ten or
14 subsection (1) of section
15 fourteen hundred fifty-six
16 Credit for transportation Amount of credit under sub-
17 improvement contributions division thirty-two of section
18 under subsection (z) two hundred ten or subsection
19 (n) of section fourteen
20 hundred fifty-six
21 QEZE credit for real property Amount of credit under
22 taxes under subsection (bb) subdivision twenty-seven of
23 section two hundred ten or
24 subsection (o) of section
147 12021-01-1
1 fourteen hundred fifty-six
2 QEZE tax reduction credit Amount of credit under
3 under subsection (cc) subdivision twenty-eight of
4 section two hundred ten or
5 subsection (p) of section
6 fourteen hundred fifty-six
7 Green building credit Amount of green building credit
8 under subsection (y) under subdivision thirty-one
9 of section two hundred ten
10 or subsection (m) of section
11 fourteen hundred fifty-six
12 Credit for long-term Qualified costs under
13 care insurance premiums subdivision twenty-five-a of
14 under subsection (aa) section two hundred ten
15 or subsection (k) of section
16 fourteen hundred fifty-six
17 Brownfield redevelopment Applicable cost
18 credit under subsection or other basis
19 (ff) under subdivision
20 thirty-three of section
21 two hundred ten
22 or subsection (q) of
23 section fourteen hundred
24 fifty-six
148 12021-01-1
1 § 51. Section 606 of the tax law is amended by adding a new
2 subsection (ff) to read as follows:
3 (ff) Brownfield redevelopment tax credit. (1) Allowance of credit. A
4 taxpayer shall be allowed a credit, to be computed as provided in
5 section twenty-one of this chapter, against the tax imposed by this
6 article.
7 (2) Carryovers. If the amount of the credit and carryovers of such
8 credit allowed under this subsection for any taxable year shall exceed
9 the taxpayer's tax for such year, the excess, as well as any part of the
10 credit or carryovers of such credit, or both, may be carried over to the
11 following year or years and may be deducted from the taxpayer's tax for
12 such year or years. In lieu of carrying over any such excess, a taxpayer
13 who qualifies as an owner of a new business for purposes of paragraph
14 ten of subsection (a) of this section may, at his option, receive fifty
15 percent of such excess as a refund. Any refund paid pursuant to this
16 paragraph shall be deemed to be a refund of an overpayment of tax as
17 provided in section six hundred eighty-six of this article, provided,
18 however, that no interest shall be paid thereon. For purposes of this
19 section, in reading such paragraph ten, references therein to the
20 investment tax credit provided for under subsection (a) of this section
21 shall be deemed to refer to the credit provided for under this
22 subsection, and shall be read accordingly.
23 § 52. Subsection (c) of section 683 of the tax law is amended by
24 adding a new paragraph 10 to read as follows:
25 (10) Reports concerning a remediation certificate. If a taxpayer's
26 remediation certificate issued pursuant to section 27-1413 of the envi-
27 ronmental conservation law is modified or revoked by a determination
28 issued pursuant to subdivision six of section 27-1413 of the environ-
149 12021-01-1
1 mental conservation law, any tax liability generated by reason of such
2 modification or revocation may be assessed within one year after such
3 determination is final and is no longer subject to judicial review and
4 the taxpayer shall be allowed to offset against such tax liability the
5 amount of any of the credits provided for under subsection (a) or (j) of
6 section six hundred six of this article which the taxpayer would have
7 been allowed with respect to amounts which were the basis for the credit
8 provided for under such section twenty-one which is the subject of such
9 assessment.
10 § 53. Subsection (a) of section 687 of the tax law, as amended by
11 chapter 309 of the laws of 1996, is amended to read as follows:
12 (a) General.--Claim for credit or refund of an overpayment of income
13 tax shall be filed by the taxpayer within (i) three years from the time
14 the return was filed or , (ii) two years from the time the tax was
15 paid, or (iii) in the case of any overpayment arising from an erroneous
16 denial by the department of environmental conservation of a remediation
17 certificate pursuant to section 27-1413 of the environmental conserva-
18 tion law, two years from the time a final determination to the effect
19 that such denial was erroneous is made and is no longer subject to judi-
20 cial review, whichever of such periods expires the later latest, or if
21 no return was filed, within two years from the time the tax was paid. If
22 the claim is filed within the three year period, the amount of the cred-
23 it or refund shall not exceed the portion of the tax paid within the
24 three years immediately preceding the filing of the claim plus the peri-
25 od of any extension of time for filing the return unless such claim is
26 for a credit or a portion thereof provided pursuant to paragraph two or
27 four of subsection (c), paragraph two or four of subsection (d) or
28 subsection (e) of section six hundred six of this chapter. If the claim
150 12021-01-1
1 is not filed within the three year period, but is filed within the two
2 year period, the amount of the credit or refund shall not exceed the
3 portion of the tax paid during the two years immediately preceding the
4 filing of the claim unless such claim is for a credit or a portion ther-
5 eof provided pursuant to paragraph two or four of subsection (c), para-
6 graph two or four of subsection (d) or subsection (e) of section six
7 hundred six of this chapter. In the case of a claim for credit or
8 refund filed within the period prescribed in paragraph (iii) of this
9 subsection, the amount of the credit or refund may exceed the portion of
10 the tax paid within the applicable period specified in the two imme-
11 diately preceding sentences, but only to the extent of the amount of the
12 overpayment attributable to the denial described in such paragraph
13 (iii). Except as otherwise provided in this section, if no claim is
14 filed, the amount of a credit or refund shall not exceed the amount
15 which would be allowable if a claim had been filed on the date the cred-
16 it or refund is allowed.
17 § 54. Subsection (c) of section 1083 of the tax law is amended by
18 adding a new paragraph 10 to read as follows:
19 (10) Reports concerning a remediation certificate. If a taxpayer's
20 remediation certificate issued pursuant to section 27-1413 of the envi-
21 ronmental conservation law is modified or revoked by a determination
22 issued pursuant to subdivision six of section 27-1413 of the environ-
23 mental conservation law, any tax liability generated by reason of such
24 modification or revocation may be assessed within one year after such
25 determination is final and is no longer subject to judicial review and
26 the taxpayer shall be allowed to offset against such tax liability the
27 amount of any of the credits provided for under subdivision twelve or
28 twelve-B of section two hundred ten, or subsection (i) of section four-
151 12021-01-1
1 teen hundred fifty-six of this chapter or subdivision (q) of section
2 fifteen hundred eleven of this chapter which the taxpayer would have
3 been allowed with respect to amounts which were the basis for the credit
4 provided for under such section twenty-one which is the subject of such
5 assessment.
6 § 55. Subsection (a) of section 1087 of the tax law, as amended by
7 chapter 55 of the laws of 1982, is amended to read as follows:
8 (a) General.--Claim for credit or refund of an overpayment of tax
9 under article nine , nine-a, nine-b or nine-c or nine-A shall be filed
10 by the taxpayer within (i) three years from the time the return was
11 filed or , (ii) two years from the time the tax was paid or (iii) in
12 the case of any overpayment arising from an erroneous denial by the
13 department of environmental conservation of a remediation certificate
14 pursuant to section 27-1413 of the environmental conservation law, two
15 years from the time a final determination to the effect that such denial
16 was erroneous is made and is no longer subject to judicial review,
17 whichever of such periods expires the later latest, or if no return
18 was filed, within two years from the time the tax was paid. If the
19 claim is filed within the three year period, the amount of the credit or
20 refund shall not exceed the portion of the tax paid within the three
21 years immediately preceding the filing of the claim plus the period of
22 any extension of time for filing the return. If the claim is not filed
23 within the three year period, but is filed within the two year period,
24 the amount of the credit or refund shall not exceed the portion of the
25 tax paid during the two years immediately preceding the filing of the
26 claim. In the case of a claim for credit or refund filed within the
27 period prescribed in paragraph (iii) of this subsection, the amount of
28 the credit or refund may exceed the portion of the tax paid within the
152 12021-01-1
1 applicable period specified in the two immediately preceding sentences,
2 but only to the extent of the amount of the overpayment attributable to
3 the denial described in such paragraph (iii) of this subsection. Except
4 as otherwise provided in this section, if no claim is filed, the amount
5 of a credit or refund shall not exceed the amount which would be allow-
6 able if a claim had been filed on the date the credit or refund is
7 allowed. For special restriction in a proceeding on a claim for refund
8 of tax paid pursuant to an assessment made as a result of (i) a net
9 operating loss carryback or capital loss carryback, or (ii) an increase
10 or decrease in federal taxable income or federal tax, or (iii) a federal
11 change or correction or renegotiation, or computation or recomputation
12 of tax, which is treated in the same manner as if it were a deficiency
13 for federal income tax purposes, see paragraph (7) of subsection (c) of
14 section one thousand eighty-three.
15 § 56. Section 1456 of the tax law is amended by adding a new
16 subsection (q) to read as follows:
17 (q) Brownfield redevelopment tax credit. (1) Allowance of credit. A
18 taxpayer shall be allowed a credit, to be computed as provided in
19 section twenty-one of this chapter, against the tax imposed by this
20 article.
21 (2) Carryover. The credit and carryovers of such credit allowed under
22 this subsection for any taxable year shall not, in the aggregate, reduce
23 the tax due for such year to less than the minimum tax fixed by para-
24 graph three of subsection (b) of section fourteen hundred fifty-five of
25 this article. However, if the amount of credit or carryovers of such
26 credit, or both, allowed under this subsection for any taxable year
27 reduces the tax to such amount, then any amount of credit or carryovers
28 of such credit thus not deductible in such taxable year may be carried
153 12021-01-1
1 over to the following year or years and may be deducted from the taxpay-
2 er's tax for such year or years. In lieu of such carryover, any such
3 taxpayer which qualifies as a corporate new business under paragraph six
4 of subdivision (b) of section twenty-one of this chapter may elect, on
5 its report for its taxable year with respect to which such credit is
6 allowed, to treat fifty percent of the amount of such carryover as an
7 overpayment of tax to be credited or refunded in accordance with the
8 provisions of section ten hundred eighty-six of this chapter. Provided,
9 however, the provisions of subsection (c) of section ten hundred eight-
10 y-eight of this chapter notwithstanding, no interest shall be paid ther-
11 eon.
12 § 57. Section 1511 of the tax law is amended by adding a new subdivi-
13 sion (u) to read as follows:
14 (u) Brownfield redevelopment tax credit. (1) Allowance of credit. A
15 taxpayer shall be allowed a credit, to be computed as provided in
16 section twenty-one of this chapter, against the taxes imposed by this
17 article.
18 (2) Carryover. The credit and carryovers of such credit allowed under
19 this subdivision for any taxable year shall not, in the aggregate,
20 reduce the tax due for such year to less than the minimum fixed by para-
21 graph four of subdivision (a) of section fifteen hundred two of this
22 article. However, if the amount of credit or carryovers of such credit,
23 or both, allowed under this subdivision for any taxable year reduces the
24 tax to such amount, then any amount of credit or carryovers of such
25 credit thus not deductible in such taxable year may be carried over to
26 the following year or years and may be deducted from the taxpayer's tax
27 for such year or years. In lieu of such carryover, any such taxpayer
28 which qualifies as a corporate new business under paragraph six of
154 12021-01-1
1 subdivision (b) of section twenty-one of this chapter may elect, on its
2 report for its taxable year with respect to which such credit is
3 allowed, to treat fifty percent of the amount of such carryover as an
4 overpayment of tax to be credited or refunded in accordance with the
5 provisions of section ten hundred eighty-six of this chapter. Provided,
6 however, the provisions of subsection (c) of section ten hundred eight-
7 y-eight of this chapter notwithstanding, no interest shall be paid ther-
8 eon.
9 § 58. The tax law is amended by adding a new section 25 to read as
10 follows:
11 § 25. Tax credits for remediated brownfields. (a) Definitions. As
12 used in this section the following terms shall have the following mean-
13 ings:
14 (1) Remediation certificate. A "remediation certificate" is a certif-
15 icate issued by the commissioner of environmental conservation pursuant
16 to section 27-1413 of the environmental conservation law.
17 (2) Qualified site. For purposes of this section, a "qualified site"
18 is a site with respect to which a remediation certificate has been
19 issued and which is located in its entirety outside the metropolitan
20 commuter transportation district created and established pursuant to
21 section twelve hundred sixty-two of the public authorities law.
22 (3) Small qualified site. A "small qualified site" is a qualified site
23 which, on the effective date of the remediation certificate issued with
24 respect to such site, consists of at least ten but no more than one
25 hundred acres and is located at least partially within a city in this
26 state.
155 12021-01-1
1 (4) Large qualified site. A "large qualified site is a qualified site
2 which, on the effective date of the remediation certificate issued with
3 respect to such site, consists of more than one hundred acres.
4 (5) Developer. (i) A "developer" is a taxpayer under article nine,
5 nine-A, twenty-two, thirty-two or thirty-three of this chapter who or
6 which either (I) has been issued a remediation certificate with respect
7 to a qualified site or (II) has purchased all or any portion of a quali-
8 fied site from a taxpayer who or which has been issued a remediation
9 certificate with respect to such site provided, in the case of a small
10 qualified site, such purchase occurs within five years of the effective
11 date of the remediation certificate issued with respect to such small
12 qualified site, and in the case of a large qualified site, such purchase
13 occurs within ten years of the effective date of the remediation certif-
14 icate issued with respect to such large qualified site. Provided
15 further, that the taxpayer who or which is purchasing all or any portion
16 of a qualified site and the taxpayer who or which has been issued a
17 remediation certificate with respect to such site may not be related
18 persons, as such term is defined in subparagraph (C) of paragraph three
19 of subsection (b) of section four hundred sixty-five of the internal
20 revenue code.
21 (ii) Where the entity to whom a remediation certificate has been
22 issued is a partnership, or where the entity which has purchased all or
23 any portion of a small or large qualified site from a taxpayer who or
24 which has been issued a remediation certificate with respect to such
25 site within the applicable time limit is a partnership, any partner in
26 such partnership who or which is taxable under article nine, nine-A,
27 twenty-two, thirty-two or thirty-three of this chapter shall be a devel-
28 oper under this paragraph. Where the entity to whom a remediation
156 12021-01-1
1 certificate has been issued is a New York S corporation, or where the
2 entity which has purchased all or any portion of a small or large quali-
3 fied site from a taxpayer who or which has been issued a remediation
4 certificate with respect to such site within the applicable time limit
5 is a New York S corporation, any shareholder in such New York S corpo-
6 ration shall be a developer under this paragraph.
7 (iii) In order for a taxpayer to be a "developer" for purposes of
8 clause (II) of subparagraph (i) of this paragraph, such taxpayer shall
9 not be a person that would have been ineligible to receive a remediation
10 certificate with respect to such site for the reasons stated in para-
11 graphs a and c of subdivision two of section 27-1405 of the environ-
12 mental conservation law.
13 (6) Business tax benefit period. The "business tax benefit period",
14 with regard to the credits described in subdivisions (b) and (c) of this
15 section, shall be (i) in the case of a developer of a small qualified
16 site, a period of fourteen consecutive taxable years of such developer
17 or (ii) in the case of a developer of a large qualified site, a period
18 of nineteen consecutive taxable years of such developer. Such period
19 shall commence (i) in the taxable year next following the year in which
20 such developer is issued a remediation certificate with respect to a
21 qualified site or (ii) in the case of a developer who has purchased all
22 or any portion of a qualified site, in the taxable year in which such
23 developer purchases such qualified site.
24 (b) Remediated brownfield credit for real property taxes for small
25 qualified sites. (1) Allowance of credit. A developer of a small quali-
26 fied site who or which is subject to tax under article nine, nine-A,
27 twenty-two, thirty-two or thirty-three of this chapter, shall be allowed
28 a credit against such tax, pursuant to the provisions referenced in
157 12021-01-1
1 paragraph eight of this subdivision, for eligible real property taxes
2 imposed on such small qualified site.
3 (2) Amount of credit. The amount of the credit shall be the product of
4 (i) the benefit period factor, (ii) the employment number factor, and
5 (iii) the eligible real property taxes paid or incurred by the developer
6 of the small qualified site during the taxable year (or the pro rata
7 share of such taxes in the case of a partner in a partnership).
8 (3) Benefit period factor. The benefit period factors are set forth in
9 the following table:
10 Taxable year of the business Benefit period factor:
11 tax benefit period:
12 1-10 1.0
13 11 .8
14 12 .6
15 13 .4
16 14 .2
17 (4) Employment number factor. (i) The employment number factors are
18 set forth in the following table:
19 Average number of full-time Employment number factor:
20 employees employed by the
21 developer of a qualified
22 site at such site during the
23 taxable year:
24 at least 25 but less than 50 .25
25 at least 50 but less than 75 .50
26 at least 75 but less than 100 .75
27 at least 100 1.00
158 12021-01-1
1 (ii) For purposes of this paragraph, the average number of full-time
2 employees employed by a developer at a qualified site during a taxable
3 year shall be computed by determining the number of such individuals
4 employed by the developer on the thirty-first day of March, the thirti-
5 eth day of June, the thirtieth day of September and the thirty-first day
6 of December during the taxable year, adding together the number of such
7 individuals determined to be so employed on each of such dates and
8 dividing the sum so obtained by the number of such dates occurring with-
9 in such applicable taxable year. For purposes of this calculation,
10 general executive officers in the case of a corporation shall be
11 excluded. Where the developer is a partner in a partnership or a share-
12 holder in a New York S corporation, the number of full-time employees of
13 the partnership or New York S corporation, respectively, at such quali-
14 fied site shall be used for purposes of this calculation.
15 (5) Eligible real property taxes. The term "eligible real property
16 taxes" means taxes imposed on the real property which consists of the
17 small qualified site owned by the developer, provided such taxes are
18 imposed for a period during which the real property is a qualified site.
19 Where the developer is a partner in a partnership or a shareholder in a
20 New York S corporation, such real property shall be owned by the part-
21 nership or New York S corporation, respectively.
22 (6) Credit recapture. Where a taxpayer's eligible real property taxes
23 which were the basis for the allowance of the credit provided for under
24 this subdivision are subsequently reduced as a result of a final order
25 in any proceeding under article seven of the real property tax law or
26 other provision of law, the taxpayer shall add back, in the taxable year
27 in which such final order is issued, the excess of (i) the amount of
28 credit originally allowed for a taxable year over (ii) the amount of
159 12021-01-1
1 credit determined based upon the reduced eligible real property taxes.
2 If such final order reduces real property taxes for more than one year,
3 the taxpayer must determine how much of such reduction is attributable
4 to each year covered by such final order and calculate the amount of
5 credit which is required by this paragraph to be recaptured for each
6 year based on such reduction.
7 (7) Credit option. If the small qualified site is located in whole or
8 in part in an area designated as an empire zone pursuant to article
9 eighteen-B of the general municipal law, and a taxpayer meets the eligi-
10 bility requirements for both the credit provided for under this subdivi-
11 sion and the QEZE credit for real property taxes provided for under
12 section fifteen of this chapter, with respect to all or part of such
13 site, such taxpayer shall not be allowed to claim both such credits. The
14 taxpayer shall be required, in the first taxable year such taxpayer is
15 allowed to claim a credit under this subdivision, to elect whether to
16 claim the credit provided for under this subdivision or the credit
17 provided for under section fifteen of this chapter. Such election shall
18 be made with the filing of the return or report required under article
19 nine, nine-A, twenty-two, thirty-two or thirty-three of this chapter,
20 whichever is applicable, for such taxable year. Such election shall
21 apply to and be binding in each subsequent taxable year in the business
22 tax benefit period applicable to the credit provided for under either
23 this section or section fifteen of this chapter. A taxpayer who or which
24 has been allowed a credit under section fifteen of this chapter, in a
25 taxable year preceding the first taxable year such taxpayer is allowed
26 to claim a credit under this subdivision, shall not be precluded from
27 making the election provided for in this paragraph.
160 12021-01-1
1 (8) Cross-references. For application of the credit provided for in
2 this subdivision, see the following provisions of this chapter:
3 (i) Article 9: Section 187-g.
4 (ii) Article 9-A: Section 210: subdivision thirty-six.
5 (iii) Article 22: Section 606: subsections (i) and (jj).
6 (iv) Article 32: Section 1456: subsection (r).
7 (v) Article 33: Section 1511: subdivision (v).
8 (c) Remediated brownfield credit for real property taxes for large
9 qualified sites. (1) Allowance of credit. A developer of a large quali-
10 fied site who or which is subject to tax under article nine, nine-A,
11 twenty-two, thirty-two or thirty-three of this chapter, shall be allowed
12 a credit against such tax, pursuant to the provisions referenced in
13 paragraph eight of this subdivision, for eligible real property taxes
14 imposed on such large qualified site.
15 (2) Amount of credit. The amount of the credit shall be the product of
16 (i) the benefit period factor, (ii) the employment number factor, and
17 (iii) the eligible real property taxes paid or incurred by the developer
18 of the large qualified site during the taxable year (or the pro rata
19 share of such taxes in the case of a partner in a partnership).
20 (3) Benefit period factor. The benefit period factors are set forth in
21 the following table:
22 Taxable year of the business tax benefit period: Benefit period factor:
23 1-15 1.0
24 16 .8
25 17 .6
26 18 .4
27 19 .2
161 12021-01-1
1 (4) Employment number factor. The employment number factor shall be as
2 prescribed in paragraph four of subdivision (b) of this section.
3 (5) Eligible real property taxes. The term "eligible real property
4 taxes" means taxes imposed on the real property which consists of the
5 large qualified site owned by the developer, provided such taxes are
6 imposed for a period during which the real property is a large qualified
7 site. Where the developer is a partner in a partnership or a shareholder
8 in a New York S corporation, such real property shall be owned by the
9 partnership or New York S corporation, respectively.
10 (6) Credit recapture. Where a taxpayer's eligible real property taxes
11 which were the basis for the allowance of the credit provided for under
12 this subdivision are subsequently reduced as a result of a final order
13 in any proceeding under article seven of the real property tax law or
14 other provision of law, the taxpayer shall add back, in the taxable year
15 in which such final order is issued, the excess of (i) the amount of
16 credit originally allowed for a taxable year over (ii) the amount of
17 credit determined based upon the reduced eligible real property taxes.
18 If such final order reduces real property taxes for more than one year,
19 the taxpayer must determine how much of such reduction is attributable
20 to each year covered by such final order and calculate the amount of
21 credit which is required by this paragraph to be recaptured for each
22 year based on such reduction.
23 (7) Credit option. If the large qualified site is located in whole or
24 in part in an area designated as an empire zone pursuant to article
25 eighteen-B of the general municipal law, and a taxpayer meets the eligi-
26 bility requirements for both the credit provided for under this subdivi-
27 sion and the QEZE credit for real property taxes provided for under
28 section fifteen of this chapter, with respect to all or part of such
162 12021-01-1
1 site, such taxpayer shall not be allowed to claim both such credits. The
2 taxpayer shall be required, in the first taxable year such taxpayer is
3 allowed to claim a credit under this subdivision, to elect whether to
4 claim the credit provided for under this subdivision or the credit
5 provided for under section fifteen of this chapter. Such election shall
6 be made with the filing of the return or report required under article
7 nine, nine-A, twenty-two, thirty-two or thirty-three of this chapter,
8 whichever is applicable, for such taxable year. Such election shall
9 apply to and be binding in each subsequent taxable year in the business
10 tax benefit period applicable to the credit provided for under either
11 this section or section fifteen of this chapter. A taxpayer who or which
12 has been allowed a credit under section fifteen of this chapter, in a
13 taxable year preceding the first taxable year such taxpayer is allowed
14 to claim a credit under this subdivision, shall not be precluded from
15 making the election provided for in this paragraph.
16 (8) Cross-references. For application of the credit provided for in
17 this subdivision, see the following provisions of this chapter:
18 (i) Article 9: Section 187-h.
19 (ii) Article 9-A: Section 210: subdivision thirty-seven.
20 (iii) Article 22: Section 606: subsections (i) and (kk).
21 (iv) Article 32: Section 1456: subsection (s).
22 (v) Article 33: Section 1511: subdivision (w).
23 § 59. The tax law is amended by adding two new sections 187-g and
24 187-h to read as follows:
25 § 187-g. Remediated brownfield credit for real property taxes for
26 small qualified sites. 1. Allowance of credit. A taxpayer shall be
27 allowed a credit, to be computed as provided in subdivision (b) of
28 section twenty-five of this chapter, against the taxes imposed by
163 12021-01-1
1 sections one hundred eighty-three, one hundred eighty-four and one
2 hundred eighty-five of this article. Provided, however, that the amount
3 of such credit allowed against the tax imposed by section one hundred
4 eighty-four of this article shall be the excess of the amount of such
5 credit over the amount of any credit allowed by this section against the
6 tax imposed by section one hundred eighty-three of this article.
7 2. Application of credit. In no event shall the credit under this
8 section be allowed in an amount which will reduce the tax payable to
9 less than the applicable minimum tax fixed by section one hundred eight-
10 y-three or one hundred eighty-five of this article. If, however, the
11 amount of credit allowed under this section for any taxable year reduces
12 the tax to such amount, any amount of credit not thus deductible in such
13 taxable year shall be treated as an overpayment of tax to be credited or
14 refunded in accordance with the provisions of section ten hundred eight-
15 y-six of this chapter. Provided, however, the provisions of subsection
16 (c) of section ten hundred eighty-eight of this chapter notwithstanding,
17 no interest shall be paid thereon.
18 § 187-h. Remediated brownfield credit for real property taxes for
19 large qualified sites. 1. Allowance of credit. A taxpayer shall be
20 allowed a credit, to be computed as provided in subdivision (b) of
21 section twenty-five of this chapter, against the taxes imposed by
22 section one hundred eighty-three, one hundred eighty-four and one
23 hundred eighty-five of this article. Provided, however, that the amount
24 of such credit allowed against the tax imposed by section one hundred
25 eighty-four of this article shall be the excess of the amount of such
26 credit over the amount of any credit allowed by this section against the
27 tax imposed by section one hundred eighty-three of this article.
164 12021-01-1
1 2. Application of credit. In no event shall the credit under this
2 section be allowed in an amount which will reduce the tax payable to
3 less than the applicable minimum tax fixed by section one hundred eight-
4 y-three or one hundred eighty-five of this article. If, however, the
5 amount of credit allowed under this section for any taxable year reduces
6 the tax to such amount, any amount of credit not thus deductible in such
7 taxable year shall be treated as an overpayment of tax to be credited or
8 refunded in accordance with the provisions of section ten hundred eight-
9 y-six of this chapter. Provided, however, the provisions of subsection
10 (c) of section ten hundred eighty-eight of this chapter notwithstanding,
11 no interest shall be paid thereon.
12 § 60. Section 210 of the tax law is amended by adding two new subdivi-
13 sions 36 and 37 to read as follows:
14 36. Remediated brownfield credit for real property taxes for small
15 qualified sites. (a) Allowance of credit. A taxpayer which is a develop-
16 er of a small qualified site shall be allowed a credit for eligible real
17 property taxes, to be computed as provided in subdivision (b) of section
18 twenty-five of this chapter, against the tax imposed by this article.
19 For purposes of this subdivision, the terms "small qualified site" and
20 "developer" shall have the same meaning as set forth in paragraphs three
21 and five, respectively, of subdivision (a) of section twenty-five of
22 this chapter.
23 (b) Application of credit. The credit allowed under this subdivision
24 for any taxable year shall not reduce the tax due for such year to less
25 than the higher of the amounts prescribed in paragraphs (c) and (d) of
26 subdivision one of this section. However, if the amount of credit
27 allowed under this subdivision for any taxable year reduces the tax to
28 such amount, any amount of credit thus not deductible in such taxable
165 12021-01-1
1 year shall be treated as an overpayment of tax to be credited or
2 refunded in accordance with the provisions of section ten hundred eight-
3 y-six of this chapter. Provided, however, the provisions of subsection
4 (c) of section ten hundred eighty-eight of this chapter notwithstanding,
5 no interest shall be paid thereon.
6 37. Remediated brownfield credit for real property taxes for large
7 qualified sites. (a) Allowance of credit. A taxpayer which is a develop-
8 er of a large qualified site shall be allowed a credit for eligible real
9 property taxes, to be computed as provided in subdivision (c) of section
10 twenty-five of this chapter, against the tax imposed by this article.
11 For purposes of this subdivision, the terms "large qualified site" and
12 "developer" shall have the same meaning as set forth in paragraphs four
13 and five, respectively, of subdivision (a) of section twenty-five of
14 this chapter.
15 (b) Application of credit. The credit allowed under this subdivision
16 for any taxable year shall not reduce the tax due for such year to less
17 than the higher of the amounts prescribed in paragraphs (c) and (d) of
18 subdivision one of this section. However, if the amount of credit
19 allowed under this subdivision for any taxable year reduces the tax to
20 such amount, any amount of credit thus not deductible in such taxable
21 year shall be treated as an overpayment of tax to be credited or
22 refunded in accordance with the provisions of section ten hundred eight-
23 y-six of this chapter. Provided, however, the provisions of subsection
24 (c) of section ten hundred eighty-eight of this chapter notwithstanding,
25 no interest shall be paid thereon.
26 § 61. Subparagraph (B) of paragraph 1 of subsection (i) of section 606
27 of the tax law, as separately amended by section 4 of part I, section 47
28 of part Y, section 4 of part CC, sections 4 and 15 of part GG, section 5
166 12021-01-1
1 of part II and section 3 of part E of chapter 63 of the laws of 2000, is
2 amended to read as follows:
3 (B) shall be treated as the owner of a new business with respect to
4 such share if the corporation qualifies as a new business pursuant to
5 paragraph (j) of subdivision twelve of section two hundred ten of this
6 chapter , unless the shareholder has previously received a refund by
7 reason of the application of this subparagraph, or this subsection as it
8 was in effect for taxable years beginning before nineteen hundred nine-
9 ty-four .
10 The corporation's
11 With respect to the credit base under
12 following credit section two hundred ten
13 under this section: or section fourteen
14 hundred fifty-six of this
15 chapter is:
16 Investment tax credit Investment credit base
17 under subsection (a) or qualified
18 rehabilitation
19 expenditures under
20 subdivision twelve of
21 section two hundred ten
22 Empire zone Cost or other basis
23 investment tax credit under subdivision
24 under subsection (j) twelve-B
25 of section two hundred
167 12021-01-1
1 ten
2 Empire zone Eligible wages under
3 wage tax credit subdivision nineteen of
4 under subsection (k) section two hundred ten
5 or subsection (e) of
6 section fourteen hundred
7 fifty-six
8 Empire zone Qualified investments
9 capital tax credit and contributions under
10 under subsection (1) subdivision twenty of
11 section two hundred ten
12 or subsection (d) of
13 section fourteen hundred
14 fifty-six
15 Agricultural property tax Allowable school
16 credit under subsection (n) district property taxes under
17 subdivision twenty-two of
18 section two hundred ten
19 Credit for employment Qualified first-year wages or
20 of persons with dis- qualified second-year wages
21 abilities under under subdivision
22 subsection (o) twenty-three of section
23 two hundred ten
24 or subsection (f)
168 12021-01-1
1 of section fourteen
2 hundred fifty-six
3 Employment incentive Applicable investment credit
4 credit under subsec- base under subdivision
5 tion (a-1) twelve-D of section two
6 hundred ten
7 Empire zone Applicable investment
8 employment credit under sub-
9 incentive credit under division twelve-C
10 subsection (j-1)
11 Alternative fuels credit Cost under subdivision
12 under subsection (p) twenty-four of section two
13 hundred ten
14 Qualified emerging Applicable credit base
15 technology company under subdivision twelve-E
16 employment credit of section two hundred ten
17 under subsection (q)
18 Qualified emerging Qualified investments under
19 technology company subdivision twelve-F of
20 capital tax credit section two hundred ten
21 under subsection (r)
169 12021-01-1
1 Credit for purchase of an Cost of an automated
2 automated external defibrillator external defibrillator under
3 under subsection (s) subdivision twenty-five of
4 section two hundred ten
5 or subsection (j) of section
6 fourteen hundred fifty-six
7 Low-income housing Credit amount under
8 credit under subsection (x) subdivision thirty
9 of section two hundred ten or
10 subsection (1) of section
11 fourteen hundred fifty-six
12 Credit for transportation Amount of credit under sub-
13 improvement contributions division thirty-two of section
14 under subsection (z) two hundred ten or subsection
15 (n) of section fourteen
16 hundred fifty-six
17 IMB credit for energy Amount of credit
18 taxes under sub- under subdivision
19 section (t-1) twenty-six-a of
20 section two hundred ten
21 QEZE credit for real property Amount of credit under
22 taxes under subsection (bb) subdivision twenty-seven of
23 section two hundred ten or
24 subsection (o) of section
170 12021-01-1
1 fourteen hundred fifty-six
2 QEZE tax reduction credit Amount of credit under
3 under subsection (cc) subdivision twenty-eight of
4 section two hundred ten or
5 subsection (p) of section
6 fourteen hundred fifty-six
7 Green building credit Amount of green building credit
8 under subsection (y) under subdivision thirty-one
9 of section two hundred ten
10 or subsection (m) of section
11 fourteen hundred fifty-six
12 Credit for long-term Qualified costs under
13 care insurance premiums subdivision twenty-five-a of
14 under subsection (aa) section two hundred ten
15 or subsection (k) of section
16 fourteen hundred fifty-six
17 Remediated brownfield Amount of credit under
18 credit for real property subdivision thirty-six
19 taxes for small qualified of section two hundred
20 sites under subsection ten or subsection (r) of
21 (jj) section fourteen hundred
22 fifty-six
171 12021-01-1
1 Remediated brownfield Amount of credit under
2 credit for real property subdivision thirty-seven
3 taxes for large qualified of section two hundred
4 sites under subsection ten or subsection (s) of
5 (kk) section fourteen hundred
6 fifty-six
7 § 62. Subparagraph (B) of paragraph 1 of subsection (i) of section 606
8 of the tax law, as separately amended by section 4 of part I, section 4
9 of part CC, sections 4 and 15 of part GG, section 5 of part II and
10 section 3 of part E of chapter 63 of the laws of 2000, is amended to
11 read as follows:
12 (B) shall be treated as the owner of a new business with respect to
13 such share if the corporation qualifies as a new business pursuant to
14 paragraph (j) of subdivision twelve of section two hundred ten of this
15 chapter , unless the shareholder has previously received a refund by
16 reason of the application of this subparagraph, or this subsection as it
17 was in effect for taxable years beginning before nineteen hundred nine-
18 ty-four .
19 The corporation's
20 With respect to the credit base under
21 following credit section two hundred ten
22 under this section: or section fourteen
23 hundred fifty-six of this
24 chapter is:
25 Investment tax credit Investment credit base
26 under subsection (a) or qualified
172 12021-01-1
1 rehabilitation
2 expenditures under
3 subdivision twelve of
4 section two hundred ten
5 Empire zone Cost or other basis
6 investment tax credit under subdivision
7 under subsection (j) twelve-B
8 of section two hundred
9 ten
10 Empire zone Eligible wages under
11 wage tax credit subdivision nineteen of
12 under subsection (k) section two hundred ten
13 or subsection (e) of
14 section fourteen hundred
15 fifty-six
16 Empire zone Qualified investments
17 capital tax credit and contributions under
18 under subsection (1) subdivision twenty of
19 section two hundred ten
20 or subsection (d) of
21 section fourteen hundred
22 fifty-six
23 Agricultural property tax Allowable school
24 credit under subsection (n) district property taxes under
173 12021-01-1
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 Empire zone Applicable investment
15 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)
174 12021-01-1
1 Qualified emerging Qualified investments under
2 technology company subdivision twelve-F of
3 capital tax credit section two hundred ten
4 under subsection (r)
5 Credit for purchase of an Cost of an automated
6 automated external defibrillator external defibrillator under
7 under subsection (s) subdivision twenty-five of
8 section two hundred ten
9 or subsection (j) of section
10 fourteen hundred fifty-six
11 Low-income housing Credit amount under
12 credit under subsection (x) subdivision thirty
13 of section two hundred ten or
14 subsection (1) of section
15 fourteen hundred fifty-six
16 Credit for transportation Amount of credit under sub-
17 improvement contributions division thirty-two of section
18 under subsection (z) two hundred ten or subsection
19 (n) of section fourteen
20 hundred fifty-six
21 QEZE credit for real property Amount of credit under
22 taxes under subsection (bb) subdivision twenty-seven of
23 section two hundred ten or
24 subsection (o) of section
175 12021-01-1
1 fourteen hundred fifty-six
2 QEZE tax reduction credit Amount of credit under
3 under subsection (cc) subdivision twenty-eight of
4 section two hundred ten or
5 subsection (p) of section
6 fourteen hundred fifty-six
7 Green building credit Amount of green building credit
8 under subsection (y) under subdivision thirty-one
9 of section two hundred ten
10 or subsection (m) of section
11 fourteen hundred fifty-six
12 Credit for long-term Qualified costs under
13 care insurance premiums subdivision twenty-five-a of
14 under subsection (aa) section two hundred ten
15 or subsection (k) of section
16 fourteen hundred fifty-six
17 Remediated brownfield Amount of credit under
18 credit for real property subdivision thirty-six
19 taxes for small qualified of section two hundred
20 sites under subsection ten or subsection (r) of
21 (jj) section fourteen hundred
22 fifty-six
176 12021-01-1
1 Remediated brownfield Amount of credit under
2 credit for real property subdivision thirty-seven
3 taxes for large qualified of section two hundred
4 sites under subsection ten or subsection (s) of
5 (kk) section fourteen hundred
6 fifty-six
7 § 63. Section 606 of the tax law is amended by adding two new
8 subsections (jj) and (kk) to read as follows:
9 (jj) Remediated brownfield credit for real property taxes for small
10 qualified sites. (1) Allowance of credit. A taxpayer which is a develop-
11 er of a small qualified site shall be allowed a credit for eligible real
12 property taxes, to be computed as provided in subdivision (b) of section
13 twenty-five of this chapter, against the tax imposed by this article.
14 For purposes of this subsection, the terms "small qualified site" and
15 "developer" shall have the same meaning as set forth in paragraphs three
16 and five, respectively, of subdivision (a) of section twenty-five of
17 this chapter.
18 (2) Application of credit. If the amount of the credit allowed under
19 this subsection for any taxable year shall exceed the taxpayer's tax for
20 such year, the excess shall be treated as an overpayment of tax to be
21 credited or refunded in accordance with the provisions of section six
22 hundred eighty-six of this article, provided, however, that no interest
23 shall be paid thereon.
24 (kk) Remediated brownfield tax credit for real property taxes for
25 large qualified sites. (1) Allowance of credit. A taxpayer which is a
26 developer of a large qualified site shall be allowed a credit for eligi-
27 ble real property taxes, to be computed as provided in subdivision (c)
28 of section twenty-five of this chapter, against the tax imposed by this
177 12021-01-1
1 article. For purposes of this subsection, the terms "large qualified
2 site" and "developer" shall have the same meaning as set forth in para-
3 graphs four and five, respectively, of subdivision (a) of section twen-
4 ty-five of this chapter.
5 (2) Application of credit. If the amount of the credit allowed under
6 this subsection for any taxable year shall exceed the taxpayer's tax for
7 such year, the excess shall be treated as an overpayment of tax to be
8 credited or refunded in accordance with the provisions of section six
9 hundred eighty-six of this article, provided, however, that no interest
10 shall be paid thereon.
11 § 64. Section 1456 of the tax law is amended by adding two new
12 subsections (r) and (s) to read as follows:
13 (r) Remediated brownfield credit for real property taxes for small
14 qualified sites. (1) Allowance of credit. A taxpayer which is a develop-
15 er of a small qualified site shall be allowed a credit for eligible real
16 property taxes, to be computed as provided in subdivision (b) of section
17 twenty-five of this chapter, against the tax imposed by this article.
18 For purposes of this subsection, the terms "small qualified site" and
19 "developer" shall have the same meaning as set forth in paragraphs three
20 and five, respectively, of subdivision (a) of section twenty-five of
21 this chapter.
22 (2) Application of credit. The credit allowed under this subsection
23 for any taxable year shall not reduce the tax due for such year to less
24 than the minimum tax fixed by paragraph three of subsection (b) of
25 section fourteen hundred fifty-five of this article. However,if the
26 amount of credit allowed under this subsection for any taxable year
27 reduces the tax to such amount, any amount of credit thus not deductible
28 in such taxable year shall be treated as an overpayment of tax to be
178 12021-01-1
1 credited or refunded in accordance with the provisions of section ten
2 hundred eighty-six of this chapter. Provided, however, the provisions of
3 subsection (c) of section ten hundred eighty-eight of this chapter
4 notwithstanding, no interest shall be paid thereon.
5 (s) Remediated brownfield credit for real property taxes for large
6 qualified sites. (1) Allowance of credit. A taxpayer which is a develop-
7 er of a large qualified site shall be allowed a credit for eligible real
8 property taxes, to be computed as provided in subdivision (c) of
9 section twenty-five of this chapter, against the tax imposed by this
10 article. For purposes of this subsection, the terms "large qualified
11 site" and "developer" shall have the same meaning as set forth in para-
12 graphs four and five, respectively, of subdivision (a) of section twen-
13 ty-five of this chapter.
14 (2) Application of credit. The credit allowed under this subsection
15 for any taxable year shall not reduce the tax due for such year to less
16 than the minimum tax fixed by paragraph three of subsection (b) of
17 section fourteen hundred fifty-five of this article. However, if the
18 amount of credit allowed under this subsection for any taxable year
19 reduces the tax to such amount, any amount of credit thus not deductible
20 in such taxable year shall be treated as an overpayment of tax to be
21 credited or refunded in accordance with the provisions of section ten
22 hundred eighty-six of this chapter. Provided, however, the provisions of
23 subsection (c) of section ten hundred eighty-eight of this chapter
24 notwithstanding, no interest shall be paid thereon.
25 § 65. Section 1511 of the tax law is amended by adding two new subdi-
26 visions (v) and (w) to read as follows:
27 (v) Remediated brownfield credit for real property taxes for small
28 qualified sites. (1) Allowance of credit. A taxpayer which is a develop-
179 12021-01-1
1 er of a small qualified site shall be allowed a credit for eligible real
2 property taxes, to be computed as provided in subdivision (b) of section
3 twenty-five of this chapter, against the tax imposed by this article.
4 For purposes of this subdivision, the terms "small qualified site" and
5 "developer" shall have the same meaning as set forth in paragraphs three
6 and five, respectively, of subdivision (a) of section twenty-five of
7 this chapter.
8 (2) Application of credit. The credit allowed under this subdivision
9 for any taxable year shall not reduce the tax due for such year to less
10 than the minimum tax fixed by paragraph four of subdivision (a) of
11 section fifteen hundred two of this article. However, if the amount of
12 credit allowed under this subdivision for any taxable year reduces the
13 tax to such amount, any amount of credit thus not deductible in such
14 taxable year shall be treated as an overpayment of tax to be credited or
15 refunded in accordance with the provisions of section ten hundred eight-
16 y-six of this chapter. Provided, however, the provisions of subsection
17 (c) of section ten hundred eighty-eight of this chapter notwithstanding,
18 no interest shall be paid thereon.
19 (w) Remediated brownfield credit for real property taxes for large
20 qualified sites. (1) Allowance of credit. A taxpayer which is a develop-
21 er of a large qualified site shall be allowed a credit for eligible real
22 property taxes, to be computed as provided in subdivision (c) of section
23 twenty-five of this chapter, against the tax imposed by this article.
24 For purposes of this subdivision, the terms "large qualified site" and
25 "developer" shall have the same meaning as set forth in paragraphs four
26 and five, respectively, of subdivision (a) of section twenty-five of
27 this chapter.
180 12021-01-1
1 (2) Application of credit. The credit allowed under this subdivision
2 for any taxable year shall not reduce the tax due for such year to less
3 than the minimum tax fixed by paragraph four of subdivision (a) of
4 section fifteen hundred two of this article. However, if the amount of
5 credit allowed under this subdivision for any taxable year reduces the
6 tax to such amount, any amount of credit thus not deductible in such
7 taxable year shall be treated as an overpayment of tax to be credited or
8 refunded in accordance with the provisions of section ten hundred eight-
9 y-six of this chapter. Provided, however, the provisions of subsection
10 (c) of section ten hundred eighty-eight of this chapter notwithstanding,
11 no interest shall be paid thereon.
12 § 66. This act shall take effect immediately, provided that sections
13 thirty-six, thirty-seven, thirty-eight, thirty-nine, forty-one, forty-
14 two, forty-three, forty-four and forty-five of this act shall be deemed
15 to have been in full force and effect as if the sections were enacted on
16 April 1, 2001, and provided further that sections forty-six, forty-sev-
17 en, forty-eight, fifty-one, fifty-six and fifty-seven of this act shall
18 apply to taxable years beginning on or after January 1, 2002, but only
19 to site costs incurred and property placed in service on or after Janu-
20 ary 1, 2001; provided, however, that nothing contained herein shall be
21 deemed to affect the application, qualification, expiration, reversion
22 or repeal of any provision of law amended by any section of this act and
23 the provisions of this act shall be applied or qualified or shall expire
24 or revert or be deemed repealed in the same manner, to the same extent
25 and on the same date as the case may be as otherwise provided by law.
26 Provided that sections fifty-eight, fifty-nine, sixty, sixty-three,
27 sixty-four and sixty-five of this act shall apply to tax years beginning
28 on or after January 1, 2003. Provided further that sections forty-nine
181 12021-01-1
1 and sixty-one of this act shall take effect on the same date as section
2 3 of part E of chapter 63 of the laws of 2000 takes effect; and
3 provided, further that sections fifty and sixty-two of this act shall
4 take effect on the same date as the repeal of section 47 of part Y of
5 chapter 63 of the laws of 2000. Provided further, subdivisions 13 and
6 14 of section 97-b of the state finance law, as designated by section
7 thirty-six of this act, shall be deemed repealed effective April first
8 of the state fiscal year following the certification provided for in
9 subdivision 15 of such section 97-b; and provided further that the state
10 comptroller shall notify the legislative bill drafting commission upon
11 the occurrence of the certification provided for in subdivision 15 of
12 section 97-b of the state finance law in order that the commission may
13 maintain an accurate and timely effective data base of the official text
14 of the laws of the state of New York in furtherance of effecting the
15 provisions of section 44 of the legislative law and section 70-b of the
16 public officers law.
17 PART B
18 Section 1. Subdivision 7 of section 56-0101 of the environmental
19 conservation law, as added by chapter 413 of the laws of 1996, is
20 amended to read as follows:
21 7. "Environmental restoration project" means a project to investigate
22 or to remediate hazardous substances located on real property held in
23 title by a municipality, pursuant to title five of this article.
24 § 2. Section 56-0502 of the environmental conservation law, as added
25 by chapter 413 of the laws of 1996, is amended to read as follows:
26 § 56-0502. Definitions.
182 12021-01-1
1 For 1. "Municipality", for purposes of this title "municipality" ,
2 shall have the same meaning as provided in subdivision twelve fifteen
3 of section 56-0101 of this article, except that such term shall not
4 refer to a municipality that generated, transported or disposed of,
5 arranged for, or that caused the generation, transportation or disposal
6 of hazardous substance located at real property proposed to be investi-
7 gated or to be remediated under an environmental restoration project.
8 2. "Cost", for purposes of this title, shall have the same meaning as
9 provided in subdivision four of section 56-0101 of this article, except
10 that such term shall not include the requirement to reduce the cost of
11 an approved project in accordance with any federal or state funds for
12 the project received or to be received by the municipality.
13 3. "Environmental restoration investigation project", shall mean a
14 project, undertaken in accordance with the requirements of this title,
15 to investigate hazardous substances located in, on or emanating from
16 real property either held in title by a municipality or for which fee
17 title may be acquired by a municipality.
18 4. "Environmental restoration remediation project", shall mean a
19 project, undertaken in accordance with the requirements of this title,
20 to remediate hazardous substances located in, on or emanating from real
21 property held in title by a municipality.
22 § 3. Section 56-0503 of the environmental conservation law, as added
23 by chapter 413 of the laws of 1996, is amended to read as follows:
24 § 56-0503. Environmental restoration projects; state assistance.
25 1. The commissioner may enter into a contract with a municipality to
26 provide state assistance to such municipality to undertake an environ-
27 mental restoration project. The amount of state assistance payment for
28 such project shall be up to an amount of:
183 12021-01-1
1 (a) seventy-five ninety percent of the eligible costs of such
2 project, subject to the provisions set forth in paragraph (b) of this
3 subdivision;
4 (b) one hundred percent of the eligible costs of any remediation
5 directed by the department to be undertaken outside the boundaries of
6 the real property that is subject to an environmental restoration
7 project approved by the department.
8 2. In addition to such other terms and conditions that the commis-
9 sioner may deem to be appropriate, such contract shall provide as
10 follows:
11 (a) An estimate of the cost of such project as determined by the
12 commissioner at the time of such contract's execution;
13 (b) An agreement by the commissioner to periodically reimburse the
14 municipality for eligible costs incurred during the progress of such
15 project. Such payments shall be subject to final computation and deter-
16 mination of the total state assistance share of the eligible costs of
17 the entire environmental restoration project;
18 (c) A provision providing that if any federal payments , in
19 accordance with the required department approval of any settlement with
20 a responsible party, any responsible party payments , and/or payments
21 received from the disposition of the real property subject to an envi-
22 ronmental restoration project become available to the municipality,
23 before, during or after the completion of an environmental restoration
24 project, which were not included when the state share was calculated
25 pursuant to this section, the state assistance share shall be recalcu-
26 lated and the municipality shall pay to the state, for deposit into the
27 environmental restoration project account of the hazardous waste remedi-
28 al fund established under section ninety-seven-b of the state finance
184 12021-01-1
1 law, the difference between the original state assistance payment and
2 the recalculated state share. Recalculation of the state share shall be
3 done each time a federal payment, payment from a responsible party ,
4 or payment received from the disposition of such property is received
5 by the municipality;
6 (d) A provision that if any monies received from any federal
7 payments, payments from a responsible party, and/or payments received
8 from the disposition of such property the real property subject to an
9 environmental restoration project exceed the municipality's cost of such
10 property, including taxes owed to the municipality upon acquisition, and
11 the municipality's cost of the environmental restoration project, the
12 amount of such excess necessary to reimburse the state of New York for
13 the state assistance provided to the municipality under this title shall
14 be divided equally between the municipality and the state of New York,
15 the state share of which shall be deposited into the environmental
16 restoration project account of the hazardous waste remedial fund estab-
17 lished under section ninety-seven-b of the state finance law paid to
18 the state of New York for deposit into the environmental restoration
19 project account of the hazardous waste remedial fund established under
20 section ninety-seven-b of the state finance law;
21 (e) An agreement by the municipality to proceed expeditiously with
22 and complete such project in accordance with plans approved for payment
23 of the municipality's share of such project's cost;
24 (f) An agreement by the municipality that it shall prepare and imple-
25 ment a public participation plan prior to remedial activities undertak-
26 en pursuant to this section. The for environmental restoration projects
27 undertaken pursuant to this title. The requirements of the plan will be
28 governed by decision of the municipality to proceed with remediation of
185 12021-01-1
1 the property under this title. However, in all cases, implementation of
2 the plan shall be completed as part of the project. In those cases where
3 the municipality does not intend to proceed with remediation of the
4 property, the plan shall provide timely and accessible disclosure of the
5 results of the investigation to the interested public. The plan shall
6 provide for adequate public notice of the availability of the investi-
7 gation results; an opportunity for submission of written comments; and a
8 filing of a notice of the results of the investigation as authorized by
9 section two hundred ninety-one-i of the real property law. Where the
10 municipality intends to proceed with remediation of the property under
11 this title, the plan shall provide opportunities for early, inclusive
12 participation prior to the selection of a preferred course of action,
13 facilitate communication, including dialogue among the municipality, the
14 department, and the interested public, and provide timely and accessible
15 disclosure of information. At a minimum, the design of the plan shall
16 take into account the scope and scale of the proposed environmental
17 restoration remediation project, local interest, and other relevant
18 factors. The plan shall also provide for: adequate public notice of the
19 availability of a draft remedial plan; a forty-five day period for
20 submission of written comments; a public hearing on such plan if
21 substantive issues are raised by members of the affected community; and
22 technical assistance if so requested by members of the affected communi-
23 ty. Provided, however, that the requirements of this subdivision shall
24 not apply to interim remedial measures undertaken as part of an environ-
25 mental restoration project to address emergency site conditions . In
26 such instance, the department or such persons implementing the interim
27 remedial measure or making the request shall conduct public partic-
186 12021-01-1
1 ipation activities as the department deems necessary and appropriate
2 under such circumstances.
3 (g) An agreement by the municipality that it shall put into place any
4 engineering and/or institutional controls (including deed restrictions)
5 that the department may deem necessary to allow the contemplated use to
6 proceed, that such engineering and/or institutional controls shall be
7 binding on such municipality, any successor in title, and any lessees
8 and that any successors in title and any lessees cannot challenge state
9 enforcement of such controls;
10 (h) In the event that such engineering controls and/or institutional
11 controls are necessary the municipality and its successors in title
12 shall agree to develop a plan which ensures that such engineering and/or
13 institutional controls be continually maintained in the manner required
14 by the department. Such plan shall be approved by the department. Fail-
15 ure to implement the plan or maintain such controls shall constitute a
16 violation of such contract and shall terminate for the duration of such
17 failure the protection afforded under subdivision one of section 56-0509
18 of this title;
19 (i) In the event that deed restrictions are required, such munici-
20 pality shall agree to cause such deed restrictions to be recorded and
21 indexed as declarations of restrictions in the office of the recording
22 officer of the county or counties where the real property subject to
23 such environmental restoration project is located in the manner
24 prescribed by article nine of the real property law. Such declaration of
25 restriction shall contain the name of the owner of record of such prop-
26 erty, along with the tax map parcel number or the section, block, and
27 lot number of such property; and
187 12021-01-1
1 (j) A provision that exempts a municipality and any successor in
2 title, lender, or lessee from the requirement to obtain any state or
3 local permit or other authorization for any activity needed to implement
4 such a project that is conducted on the real property subject to such
5 project so long as to investigate or remediate hazardous substances
6 pursuant to this title, provided that the activity is conducted in a
7 manner which satisfies all substantive technical requirements applicable
8 to like activity conducted pursuant to a permit.
9 § 4. Section 56-0505 of the environmental conservation law, as added
10 by chapter 413 of the laws of 1996, is amended to read as follows:
11 § 56-0505. Environmental restoration projects; criteria.
12 1. The department shall determine the eligibility of an environmental
13 restoration project for state assistance under this title based upon the
14 following criteria:
15 (a) the benefit to the environment realized by the expeditious remedi-
16 ation of the property proposed to be subject to such project;
17 (b) the economic benefit to the state by the expeditious remediation
18 of the property proposed to be subject to such project; and
19 (c) the potential opportunity of the property proposed to be subject
20 to such project to be used for public recreational purposes ; and
21 (d) the opportunity for other funding sources to be available for the
22 remediation of such property, including, but not limited to, enforcement
23 actions against responsible parties (other than the municipality to
24 which state assistance was provided under this title; or a successor in
25 title, lender, or lessee who was not otherwise a responsible party prior
26 to such municipality taking title to the property), state assistance
27 payments pursuant to title thirteen of article twenty-seven of this
28 chapter, and the existence of private parties willing to remediate such
188 12021-01-1
1 property using private funding sources. Highest priority shall be grant-
2 ed to projects for which other such funding sources are not available .
3 2. The department shall not enter into a contract with a municipality
4 pursuant to section 56-0503 for an environmental restoration project for
5 any site listed in the registry of inactive hazardous waste sites under
6 section 27-1305 of this chapter and given a classification as described
7 in subparagraph one or two of paragraph b of subdivision four of such
8 section 27-1305.
9 3. The remediation objective of an environmental restoration remedi-
10 ation project shall meet the same standard for protection of public
11 health and the environment that applies to remedial actions undertaken
12 pursuant to section 27-1313 of this chapter.
13 4. After completion of such project, the municipality may use the
14 property for public purposes or may dispose of it. If the municipality
15 shall dispose of such property by sale to a responsible party, such
16 party shall pay to such municipality, in addition to such other consid-
17 eration, an amount of money constituting the amount of state assistance
18 provided to the municipality under this title plus accrued interest and
19 transaction costs and the municipality shall deposit that money into the
20 environmental restoration project account of the hazardous waste remedi-
21 al fund established under section ninety-seven-b of the state finance
22 law Property may continue to be used for the purpose for which it is
23 being used prior to achievement of the environmental restoration
24 project's objectives if the department determines that the existing
25 state of contamination does not pose a risk sufficient to prohibit such
26 use from continuing, giving due regard to human health and protection,
27 and if the department determines that such use does not interfere with
28 the environmental restoration project.
189 12021-01-1
1 5. In the event that such an environmental restoration project's
2 remediation objective shall not have been attained to the department's
3 satisfaction at the time of the municipality's disposition of such prop-
4 erty, such municipality shall be liable to ensure that such objective is
5 attained within the time called for in the state assistance contract.
6 6. If the municipality shall dispose of property subject to an envi-
7 ronmental restoration project by sale to a responsible party, such party
8 shall pay to such municipality, in addition to such other consideration,
9 an amount of money constituting the amount of state assistance provided
10 to the municipality under this title plus accrued interest and trans-
11 action costs, which the municipality shall then pay to the state for
12 deposit into the environmental restoration project account of the
13 hazardous waste remedial fund established under section ninety-seven-b
14 of the state finance law.
15 § 5. Section 56-0507 of the environmental conservation law, as added
16 by chapter 413 of the laws of 1996, is amended to read as follows:
17 § 56-0507. Recovery of state assistance.
18 1. A municipality receiving state assistance under this title under-
19 takes an environmental restoration project as agent of the state with
20 respect to the incurrence of eligible costs.
21 2. The state shall make all reasonable efforts to recover the full
22 amount of any state assistance provided under this title through liti-
23 gation brought under this section or other statute or under the common
24 law, or through cooperative agreements, with responsible parties (other
25 than the municipality to which state assistance was provided under this
26 title; or a successor in title, lender or lessee who was not otherwise a
27 responsible party prior to the municipality taking title to such proper-
28 ty). Notwithstanding nay requirement under this section, the state may
190 12021-01-1
1 elect not to recover all or any portion of its costs from a party
2 responsible according to applicable principles of statutory or common
3 law liability where such party's liability arises solely from ownership
4 or operation of the subject property subsequent to the disposal of
5 hazardous substances at such property.
6 3. Any and all monies recovered or reimbursed pursuant to this section
7 shall be deposited into the environmental restoration project account of
8 the hazardous waste remediation remedial fund established under
9 section ninety-seven-b of the state finance law.
10 § 6. Subdivisions 1, 2, 3 and 5 of section 56-0509 of the environ-
11 mental conservation law, as added by chapter 413 of the laws of 1996,
12 are amended to read as follows:
13 1. (a) Notwithstanding any other provision of law and except as
14 provided in subdivision two of this section and in paragraph (h) of
15 subdivision two of section 56-0503 of this title, the following shall
16 not be liable to the state upon any statutory or common law cause of
17 action, or to any person upon any statutory cause of action arising out
18 of the presence of any hazardous substance in or on property at any time
19 before the effective date of a contract entered into pursuant to this
20 title:
21 (i) a municipality receiving state assistance under this title to
22 undertake an environmental restoration project and complying with the
23 terms and conditions of the contract providing such assistance; and
24 (ii) a successor in title to the real property subject to such project
25 where the municipality holds or held title to the real property; any
26 lessee of such property; and any person that provides financing to such
27 party relative to the remediation, restoration, or redevelopment of such
28 property, provided that such successor in title, lessee, or lender did
191 12021-01-1
1 not generate, arrange for, transport, or dispose, and did not cause the
2 generation, arrangement for, transportation, or disposal of any hazard-
3 ous substance located at such property, and did not own such property.
4 (b) Notwithstanding any other provision of this title, any person
5 seeking the benefit of this subdivision shall bear the burden of proving
6 that a cause of action, or any part thereof, is attributable solely to
7 hazardous substances present in or on such parcel before the effective
8 date of such contract.
9 2. Subdivision one of this section shall not apply to relieve any
10 municipality, successor in title, lessee, or lender from liability aris-
11 ing from: Any municipality, successor in title, lessee, or lender iden-
12 tified in paragraph (a) of subdivision one of this section shall not
13 receive the liability protections identified in subdivisions one and
14 three of this section where liability results from:
15 (a) failing to implement such project to the department's satisfaction
16 or failing to comply with the terms and conditions of the contract;
17 (b) fraudulently demonstrating that the cleanup levels identified in
18 or to be identified in accordance with such project were reached;
19 (c) causing the release or threat of release at the property subject
20 to such project of any hazardous substance after the effective date of
21 such contract; or
22 (d) changing such property's use from the intended use as identified
23 in the contract pursuant to section 56-0503 to a use requiring a lower
24 level of residual contamination unless the additional remedial activ-
25 ities are undertaken which shall meet the same standard for protection
26 of public health and the environment that applies to remedial actions
27 undertaken pursuant to 27-1313 of this chapter so that such use can be
192 12021-01-1
1 implemented with sufficient protection of public health and the environ-
2 ment. violating the provisions of section 56-0511 of this title;
3 (e) failing to implement the plan or to implement and maintain the
4 engineering and/or institutional controls required by the department in
5 accordance with paragraph (h) of subdivision two of section 56-0503 of
6 this title; or
7 (f) using property subject to an environmental restoration project in
8 violation of the requirements of this title.
9 3. The state shall indemnify and save harmless any municipality,
10 successor in title, lessee, or lender indentified identified in para-
11 graph (a) of subdivision one of this section in the amount of any judg-
12 ment, or settlement, obtained against such municipality, successor in
13 title, lessee or lender in any court for any common law cause of action
14 arising out of the presence of any hazardous substance in or on property
15 at anytime before the effective date of a contract entered into pursuant
16 to this title. Such municipality, successor in title, lessee or lender
17 shall be entitled to representation by the attorney general, unless the
18 attorney general determines, or a court of competent jurisdiction deter-
19 mines, that such representation would constitute a conflict of interest,
20 in which case the attorney general shall certify to the comptroller that
21 such party is entitled to private counsel of its choice, and reasonable
22 attorneys' fees and expenses shall be reimbursed by the state. Any
23 settlement of such an action shall be subject to the approval of the
24 attorney general as to form and amount, and this subdivision shall not
25 apply to any settlement of any such action which has not received such
26 approval.
27 5. In addition to any other powers the department may have, including,
28 but not limited to, the powers set forth in section 56-0517 of this
193 12021-01-1
1 title, the department shall have the authority to periodically inspect
2 each project site property to ensure that the use of the property
3 complies with the terms and conditions of the contract any engineering
4 and/or institutional controls placed on the property.
5 § 7. Section 56-0511 of the environmental conservation law, as added
6 by chapter 413 of the laws of 1996, is amended to read as follows:
7 § 56-0511. Change of use.
8 1. At least sixty days before the start of physical alteration or
9 construction constituting a change of use at a property investigated or
10 remediated under an environmental restoration project, or at least sixty
11 days before a change of use at such a property not involving any phys-
12 ical alteration or construction, as the case may be, the person or enti-
13 ty proposing to make a change of use shall provide written notification
14 to the department and the clerks of the county and other municipalities
15 in which such property is located.
16 2. No person shall engage in any activity at a property investigated
17 or remediated under an environmental restoration project that is not
18 consistent with restrictions placed upon the use of the property, or
19 that will, or that reasonably is anticipated to: prevent or interfere
20 significantly with a proposed, ongoing, or completed project; or expose
21 the public health or the environment to a significantly increased threat
22 of harm or damage at from such property. If the commissioner deter-
23 mines that a proposed change of use is prohibited pursuant to this
24 section, he shall, within forty-five days after receipt of the complete
25 notice required by this section, provide the person giving such notice
26 with a written determination that such change of use will not be author-
27 ized, together with the reasons for such determination.
28 3. For the purposes of this section:
194 12021-01-1
1 (i) "change of use" means the transfer of title to all or part of
2 property subject to an environmental restoration agreement project,
3 the erection of any structure on such property, the paving of such
4 property for use as a roadway or parking lot, and the creation of a
5 park or other public or private recreational facility on such property,
6 or any activity that is likely to disrupt or expose hazardous substances
7 or to increase direct human exposure; or any other conduct that will or
8 may tend to significantly interfere with an ongoing or completed envi-
9 ronmental restoration project. "Change of use" shall not include a
10 transfer of property where physical alteration of the property subject
11 to an environmental restoration project is not contemplated. In the case
12 of title transfers with no physical alteration of property subject to an
13 environmental restoration project, owners of property shall provide
14 notice of proposed transfers of title within a reasonable time in
15 advance of the transfer.
16 (ii) "complete notice" means a notice that adequately apprises the
17 department of the contemplated physical alteration of the property and
18 how such alteration may affect the property's proposed, ongoing, or
19 completed remediation project, or of the proposed new owner's ability
20 to implement the engineering and institutional controls associated with
21 the property's remediation property.
22 § 8. The environmental conservation law is amended by adding three new
23 sections 56-0513, 56-0515, and 56-0517 to read as follows:
24 § 56-0513. Immunity.
25 Section eight of the court of claims act or any other provision of law
26 to the contrary notwithstanding, the state shall be immune from liabil-
27 ity and action with respect to any act or omission done in the discharge
28 of the department's responsibilities pursuant to this title; provided,
195 12021-01-1
1 however, that this section shall not limit the liability which may
2 otherwise exist for the unlawful, willful or malicious acts or omissions
3 on the part of the state, state agencies, or their officers, employees
4 or agents; or for the ownership or responsibility for the disposal of
5 hazardous substances according to law.
6 § 56-0515. Permit Waivers.
7 The department, by and through the commissioner, shall be authorized
8 to exempt a person from the requirement to obtain any state or local
9 permit or other authorization for any activity needed to implement a
10 project to investigate or remediate hazardous substances pursuant to
11 this title; provided, that the activity is conducted in a manner which
12 satisfies all substantive technical requirements applicable to like
13 activity conducted pursuant to a permit.
14 § 56-0517. Access to sites.
15 The department, by and through the commissioner, shall be authorized
16 to:
17 1. Require that any person permit a duly designated officer or employ-
18 ee of the department or of a municipal corporation, or any agent,
19 consultant or contractor of the department or of a municipal corpo-
20 ration, or any other person, including an employee, agent, consultant or
21 contractor of a responsible person acting at the direction of the
22 department, so authorized in writing by the commissioner, to enter upon
23 any property which has or may have a hazardous substance on such proper-
24 ty, and/or areas near such property, for the following purposes:
25 a. To inspect and take samples of such hazardous substance and/or
26 environmental media, utilizing such sampling methods as may be necessary
27 or appropriate including without limitation soil borings and monitoring
28 wells; provided, that no sampling methods involving the substantial
196 12021-01-1
1 disturbance of the ground surface of such property may be utilized until
2 after a minimum of ten days written notice thereof shall have been
3 provided to the owner and operator and occupant of such property, if
4 identifiable by reasonable efforts, unless the commissioner makes a
5 written determination that such notice will not allow the protection of
6 the public health or the environment, in which case two days written
7 notice shall be sufficient;
8 b. To implement the cleanup, removal, remediation or restoration of
9 hazardous substances and/or environmental media; provided, that no such
10 work may be undertaken until after a minimum of ten days written notice
11 thereof shall have been provided to the owner and operator and occupant
12 of such property, if identifiable by reasonable efforts, unless the
13 commissioner makes a written determination that such notice will not
14 allow the protection of the public health or the environment, in which
15 case two days written notice shall be sufficient.
16 2. a. Require that any person furnish to the department, in a form and
17 manner as prescribed by the department, information relating to the
18 current and past hazardous substance generation, treatment, storage,
19 disposal and/or transportation activities of such person or any other
20 person now or formerly under the control of such person; in the event
21 such person cannot comply therewith, in whole or in part, such person
22 shall furnish to the department information describing all efforts made
23 by such person to comply therewith; any information so furnished to the
24 department shall be considered a "written instrument" as defined in
25 subdivision three of section 175.00 of the penal law;
26 b. Require that any person permit a duly designated officer or employ-
27 ee of the department at all reasonable times to have access to and to
28 copy all books, papers, documents and records relating to the current
197 12021-01-1
1 and past hazardous substance generation, treatment, storage, disposal
2 and/or transportation activities of such person or any person now or
3 formerly under the control of such person;
4 c. Require, by subpoena issued in the name of the department, the
5 production of books, papers, documents and other records, and the rendi-
6 tion of testimony by deposition under oath of any person relating to the
7 current and past hazardous substance generation, treatment, storage,
8 disposal and/or transportation activities of such person or any person
9 now or formerly under the control of such person; such subpoenas and
10 depositions shall be regulated by the civil practice law and rules; the
11 commissioner may invoke the powers of the supreme court of the state of
12 New York to compel compliance therewith.
13 § 9. Subdivision 2 of section 97-b of the state finance law, as
14 amended by chapter 413 of the laws of 1996, is amended to read as
15 follows:
16 2. Such fund shall consist of all of the following:
17 (a) moneys appropriated for transfer to the fund's site investigation
18 and construction account; (b) all fines and other sums accumulated in
19 the fund prior to April first, nineteen hundred eighty-eight pursuant to
20 section 71-2725 of the environmental conservation law for deposit in the
21 fund's site investigation and construction account; (c) all moneys
22 collected or received by the department of taxation and finance pursuant
23 to section 27-0923 of the environmental conservation law for deposit in
24 the fund's industry fee transfer account; (d) all moneys paid into the
25 fund pursuant to section 72-0201 of the environmental conservation law
26 which shall be deposited in the fund's industry fee transfer account;
27 (e) all moneys paid into the fund pursuant to section one hundred eight-
28 y-six of the navigation law which shall be deposited in the fund's
198 12021-01-1
1 industry fee transfer account; (f) all moneys paid into the fund by
2 municipalities for repayment of landfill closure loans made pursuant to
3 title five of article fifty-two of the environmental conservation law
4 for deposit in the fund's site investigation and construction account;
5 (g) all monies recovered under section sections 56-0503, 56-0505 and
6 56-0507 of the environmental conservation law for deposit into the
7 fund's environmental restoration project account; and (h) other moneys
8 credited or transferred thereto from any other fund or source for depos-
9 it in the fund's site investigation and construction account.
10 § 10. This act shall take effect immediately and shall be deemed to
11 have been in full force and effect on and after April 1, 2001.
12 PART C
13 Section 1. Subdivision 3 of section 92-s of the state finance law, as
14 amended by chapter 309 of the laws of 1996, is amended to read as
15 follows:
16 3. Such fund shall consist of the amount of revenue collected within
17 the state from the amount of revenue, interest and penalties deposited
18 pursuant to section fourteen hundred twenty-one of the tax law, the
19 amount of fees and penalties received from easements or leases pursuant
20 to subdivision fourteen of section seventy-five of the public lands law
21 and the money received as annual service charges pursuant to section
22 four hundred four-l of the vehicle and traffic law, all moneys required
23 to be deposited therein from the contingency reserve fund pursuant to
24 section two hundred ninety-four of chapter fifty-seven of the laws of
25 nineteen hundred ninety-three, all moneys required to be deposited
26 pursuant to section thirteen of chapter six hundred ten of the laws of
199 12021-01-1
1 nineteen hundred ninety-three, repayments of loans made pursuant to
2 section 54-0511 of the environmental conservation law, all moneys
3 received as consideration, royalties, rentals, bonuses or other compen-
4 sation from oil and gas production leases pursuant to section 23-1101 of
5 the environmental conservation law, except those moneys which are to be
6 deposited in the conservation fund as provided by section eighty-three
7 of this article, all moneys to be deposited from the Northville settle-
8 ment pursuant to section thirteen of the chapter of the laws of nineteen
9 hundred ninety-six which enacted this provision, provided however, that
10 such moneys shall only be used for the cost of the purchase of private
11 lands in the core area of the central Suffolk pine barrens pursuant to a
12 consent order with the Northville industries signed on October thir-
13 teenth, nineteen hundred ninety-four and the related resource restora-
14 tion and replacement plan, and all other moneys credited or transferred
15 thereto from any other fund or source pursuant to law. All such revenue
16 shall be initially deposited into the environmental protection fund, for
17 application as provided in subdivision five of this section.
18 § 2. Paragraphs (b), (c) and (d) of subdivision 6 of section 92-s of
19 the state finance law, paragraphs (b) and (c) as amended by chapter 432
20 of the laws of 1997 and paragraph (d) as amended by section 13 of part E
21 of chapter 61 of the laws of 2000, are amended to read as follows:
22 (b) Moneys from the solid waste account shall be available, pursuant
23 to appropriation and upon certificate of approval of availability by the
24 director of the budget, for any non-hazardous municipal landfill closure
25 project; municipal waste reduction or recycling project, as defined in
26 article fifty-four of the environmental conservation law; for the
27 purposes of section two hundred sixty-one and section two hundred
28 sixty-four of the economic development law; any project for the develop-
200 12021-01-1
1 ment, updating or revision of local solid waste management plans pursu-
2 ant to sections 27-0107 and 27-0109 of the environmental conservation
3 law; and for the development of the pesticide sales and use data base in
4 conjunction with Cornell University pursuant to title twelve of article
5 thirty-three of the environmental conservation law; and for any project
6 to assess and recover any natural resource damages to the Hudson River.
7 (c) Moneys from the parks, recreation and historic preservation
8 account shall be available, pursuant to appropriation, for any municipal
9 park project, historic preservation project, urban cultural park
10 project, waterfront revitalization program, coastal rehabilitation
11 project, state parks and lands infrastructure and stewardship project,
12 Hudson River Park project consistent with chapter five hundred ninety-
13 two of the laws of nineteen hundred ninety-eight, and historic barn
14 project.
15 (d) Moneys from the open space account shall be available, pursuant to
16 appropriation, for any open space land conservation project, bio-diver-
17 sity stewardship and research pursuant to chapter five hundred fifty-
18 four of the laws of nineteen hundred ninety-three, for the purposes of
19 agricultural and farmland protection activities as authorized by article
20 twenty-five-AAA of the agriculture and markets law, non-point source
21 abatement and control projects pursuant to section 17-1409 of the envi-
22 ronmental conservation law and section eleven-b of the soil and water
23 conservation districts law, soil and water conservation district activ-
24 ities authorized for reimbursement pursuant to section eleven-a of the
25 soil and water conservation districts law, for projects to implement the
26 Hudson River estuary management plan prepared pursuant to section
27 11-0306 of the environmental conservation law, for Long Island Central
28 Pine Barrens area planning or Long Island south shore estuary reserve
201 12021-01-1
1 planning pursuant to title thirteen of article fifty-four of the envi-
2 ronmental conservation law, and for operation and management of the
3 Albany Pine Bush preserve commission pursuant to subdivision two of
4 section 54-0303 of the environmental conservation law.
5 § 3. Paragraph a of subdivision 3 of section 23-1101 of the environ-
6 mental conservation law, as added by chapter 722 of the laws of 1977, is
7 amended and a new subdivision 7 is added to read as follows:
8 a. Provide for payment to the general fund of the state environ-
9 mental protection fund as provided in section ninety-two-s of the state
10 finance law such consideration, royalties, rentals, bonuses or other
11 compensation as shall, in the discretion of the department, be in the
12 best interests of the people of the state of New York.
13 7. All moneys received pursuant to this section shall be deposited in
14 the environmental protection fund as provided in section ninety-two-s of
15 the state finance law, except for those moneys which are to be deposited
16 in the conservation fund as provided by section eighty-three of the
17 state finance law.
18 § 4. Article 54 of the environmental conservation law is amended by
19 adding a new title 14 to read as follows:
20 TITLE 14
21 STATE PARKS AND LANDS INFRASTRUCTURE AND STEWARDSHIP PROJECTS
22 Section 54-1401. Definitions.
23 54-1402. State parks and lands infrastructure and stewardship
24 projects.
25 § 54-1401. Definitions.
26 As used in this title:
27 1. "Stewardship" shall mean the care of the lands, facilities and
28 natural and cultural resources under the jurisdiction of the department
202 12021-01-1
1 and the office of parks, recreation and historic preservation on behalf
2 of the public, and the provision of public access thereto.
3 2. "State parks and lands infrastructure" shall mean state park
4 resources, recreational facilities and historic sites and any other
5 property, real or personal, under the jurisdiction of the department and
6 the office of parks, recreation and historic preservation, together with
7 machinery, equipment, furnishings and fixtures relating thereto or used
8 in connection therewith.
9 3. "State parks and lands infrastructure and stewardship projects"
10 shall mean all costs incurred or to be incurred by or on behalf of the
11 department and the office of parks, recreation and historic preservation
12 for the purpose of preserving, improving or rehabilitating state parks
13 and lands infrastructure. Such projects may include, but are not limit-
14 ed to: natural resource and habitat restoration and protection such as
15 the protection and management of biological, land, geological, archeo-
16 logical and other natural resources, survey and inventory, scientific
17 research, planning and analysis, and development of unit management
18 plans; projects to improve public access including access opportunities
19 for people with disabilities by developing, restoring, reconstructing,
20 rehabilitating and maintaining physical facilities, including but not
21 limited to buildings, roads, bridges and waste disposal systems;
22 projects to develop, maintain, or improve marine resource facilities,
23 water access facilities, recreational trails, campgrounds, day use
24 areas, fish hatcheries, public beach facilities, visitor centers, inter-
25 pretive and conservation education facilities; and historic preservation
26 projects to improve, restore or rehabilitate property listed on the
27 state or national registers of historic places to protect the historic,
28 cultural or architectural significance thereof.
203 12021-01-1
1 § 54-1402. State parks and lands infrastructure and stewardship
2 projects.
3 1. The commissioner and the commissioner of parks, recreation and
4 historic preservation are authorized to undertake state parks and lands
5 infrastructure and stewardship projects.
6 2. No monies shall be expended for state parks and lands infrastruc-
7 ture and stewardship projects except pursuant to an appropriation there-
8 for.
9 § 5. Subdivision 7 of section 92-s of the state finance law is
10 REPEALED.
11 § 6. Subdivision 2 of section 54-0509 of the environmental conserva-
12 tion law, as amended by section 18 of part A of chapter 58 of the laws
13 of 1998, is amended to read as follows:
14 2. An agreement by the commissioner to make state assistance payments
15 toward the cost of the project by periodically reimbursing the munici-
16 pality for costs incurred during the progress of the project to a maxi-
17 mum of either fifty percent of the cost, or seventy-five ninety
18 percent of the cost for a municipality with a population smaller than
19 thirty-five hundred as determined by the current federal decennial
20 census, or two million dollars, whichever is less. The commissioner may
21 consider landfill gas management projects separately from landfill
22 closure projects. Such costs are subject to final computation and
23 determination by the commissioner upon completion of the project, and
24 shall not exceed the maximum cost set forth in the contract. For
25 purposes of this subdivision, the approved project cost shall be reduced
26 by the amount of any specific state assistance payments for landfill
27 closure project purposes received by the municipality from any source;
28 provided, however, that non-specific state assistance payments, such as
204 12021-01-1
1 amounts paid pursuant to section fifty-four of the state finance law,
2 shall not be included in such cost reduction.
3 § 7. Section 1421 of the tax law, as amended by section 7 of part A of
4 chapter 58 of the laws of 1998, is amended to read as follows:
5 § 1421. Deposit and dispositions of revenues. From the taxes, inter-
6 est and penalties attributable to the tax imposed pursuant to section
7 fourteen hundred two of this article, the amount of thirty-three and
8 one-half million dollars shall be deposited by the comptroller in the
9 environmental protection fund established pursuant to section ninety-
10 two-s of the state finance law for the fiscal year beginning April
11 first, nineteen hundred ninety-five; the amount of eighty-seven million
12 dollars shall be deposited in such fund for the fiscal years beginning
13 April first, nineteen hundred ninety-six and nineteen hundred ninety-
14 seven, and the amount of one hundred twelve million dollars shall be
15 deposited in such fund for the fiscal year beginning April first, nine-
16 teen hundred ninety-eight and the amount of one hundred thirty-two
17 million dollars shall be deposited in such fund for the fiscal year
18 beginning April first, two thousand one and for each fiscal year there-
19 after, for disposition as provided under such section. On or before
20 June twelfth, nineteen hundred ninety-five and on or before the twelfth
21 day of each month thereafter (excepting the first and second months of
22 each fiscal year), the comptroller shall deposit into such fund from the
23 taxes, interest and penalties collected pursuant to such section four-
24 teen hundred two of this article which have been deposited and remain to
25 the comptroller's credit in the banks, banking houses or trust companies
26 referred to in section one hundred seventy-one-a of this chapter at the
27 close of business on the last day of the preceding month, an amount
28 equal to one-tenth of the annual amount required to be deposited in such
205 12021-01-1
1 fund pursuant to this section for the fiscal year in which such deposit
2 is required to be made. In the event such amount of taxes, interest and
3 penalties so remaining to the comptroller's credit is less than the
4 amount required to be deposited in such fund by the comptroller, an
5 amount equal to the shortfall shall be deposited in such fund by the
6 comptroller with subsequent deposits, as soon as the revenue is avail-
7 able. Beginning April first, nineteen hundred ninety-seven, the comp-
8 troller shall transfer monthly to the clean water/clean air fund estab-
9 lished pursuant to section ninety-seven-bbb of the state finance law,
10 all moneys remaining from such taxes, interest and penalties collected
11 that are not required for deposit in the environmental protection fund.
12 § 8. This act shall take effect immediately and shall be deemed to
13 have been in full force and effect on and after April 1, 2001.
14 PART D
15 Section 1. Subdivision 2 of section 33-0901 of the environmental
16 conservation law, as amended by chapter 612 of the laws of 1983, is
17 amended to read as follows:
18 2. Any person desiring such a permit shall file an application
19 containing such information required by the commissioner and in a form
20 prescribed by the commissioner. The commissioner shall examine the
21 application and shall issue or refuse to issue the permit requested
22 therein. The commissioner shall impose whatever restrictions or condi-
23 tions on the permit he deems appropriate in order to fully protect the
24 public interest. Such a permit shall not be valid for more than two
25 years one year as determined by the commissioner. A separate permit is
206 12021-01-1
1 required for each location in the state, and a fee for each location in
2 the state of one hundred fifty dollars is required.
3 § 2. Paragraph d of subdivision 3 of section 33-0905, as added by
4 chapter 612 of the laws of 1983, is amended to read as follows:
5 d. Pesticide applicator certifications shall be valid for six five
6 years after which every applicator shall recertify according to the
7 requirements then in effect. Certification identification cards shall be
8 valid for three years one year.
9 § 3. Section 33-0911 of the environmental conservation law, as added
10 by chapter 612 of the laws of 1983, is amended to read as follows:
11 § 33-0911. Certification and registration fees.
12 1. Every applicant for pesticide applicator certification shall pay an
13 examination fee of ten fifty dollars for each examination.
14 2. Fees Annual fees for pesticide applicator certificates certif-
15 ication shall be fifteen seventy-five dollars for commercial pesticide
16 applicator certification in each one individual category, twenty-five
17 dollars for each additional category and five twenty-five dollars for
18 each additional sub-category chosen. For private applicators a an
19 annual fee of fifteen dollars for the initial certified private applica-
20 tor and five dollars for subsequent applicators on the same form of
21 farm or business shall be charged at the time of initial certification,
22 renewal of certification or recertification .
23 3. Pesticide businesses shall pay an annual registration fee of one
24 hundred fifty dollars. When the applicant regularly maintains or oper-
25 ates more than one business address a fee may be required for each of
26 the applicant's business addresses in the state. Any agency which is a
27 state agency, municipal corporation, public authority, or college shall
28 be exempt from any fee for registration.
207 12021-01-1
1 § 4. This act shall take effect April 1, 2001.
2 PART E
3 Section 1. Subdivision 2 of section 3-0113 of the environmental
4 conservation law, as amended by chapter 62 of the laws of 1989, is
5 amended to read as follows:
6 2. Any county, city, town or village clerk who entity which is
7 authorized by section 11-0713 of this chapter to sell hunting, trapping
8 and fishing licenses is hereby authorized, but not required, to sell
9 annual subscriptions to the department's official magazine, "The New
10 York State Conservationist." The fee to be charged by a clerk for a
11 subscription to such magazine shall be such fee as the commissioner may,
12 after consultation with the division of the budget, deem necessary for
13 the best interest of the state. Such fee shall be collected by the
14 clerk from each subscriber at the time of receiving application for
15 subscription. Each clerk shall remit direct to the department on the
16 first and fifteenth of each month all fees collected by him from
17 subscribers, less fifty cents for each year's subscription obtained,
18 which he shall be entitled to retain. Subscription applications, filled
19 out to indicate the names and addresses of the persons to whom the maga-
20 zine is to be sent, shall also be forwarded to the department by the
21 clerks on the first of each month. The fifty cents which a clerk is
22 authorized to deduct from each year's subscription obtained shall be
23 subject to laws providing for the disposition of other fees arising from
24 the performance of his official duties as clerk All collected fees,
25 minus a 5.5 percent commission, shall be remitted monthly, on a schedule
26 to be determined by the department. All of the receipts department
208 12021-01-1
1 from subscriptions shall be deposited in an account in the miscellaneous
2 special revenue fund-other. The comptroller is authorized and directed
3 to permit interest earnings on any balances to accrue to the benefit of
4 this account.
5 § 2. Subdivision 13 of section 11-0305 of the environmental conserva-
6 tion law is REPEALED and subdivisions 14, 15, 16 and 17 are renumbered
7 subdivisions 13, 14, 15 and 16.
8 § 3. Section 11-0305 of the environmental conservation law is amended
9 by adding a new subdivision 17 to read as follows:
10 17. To prepare or cause to be prepared voluntary habitat stamps and
11 furnish such stamps annually to license issuing agents and officers for
12 sale and issuance in the same manner as licenses and other types of
13 stamps. The purchase of a stamp is voluntary and a stamp need not be
14 possessed in order to take fish or wildlife.
15 § 4. Paragraph (a) of subdivision 3 of section 11-0327 of the environ-
16 mental conservation law, as added by chapter 308 of the laws of 1994, is
17 amended to read as follows:
18 (a) To review the allocations and expenditures of the department for
19 fish and wildlife purposes as provided in section 11-0303 of this title
20 and report to the commissioner by July first November fifteenth of
21 each year. The commissioner shall, by August first of each year, submit
22 such report, in its entirety, to the governor, the legislature and
23 interested individuals and organizations. To assist the board in its
24 review the department shall by September first of each year make avail-
25 able to the board current and anticipated income and expenditures for
26 the fish and wildlife programs, including planned expenditures by time
27 and activity code for the next fiscal year. Such report shall include
28 the findings of the advisory board regarding such allocations and
209 12021-01-1
1 expenditures, including expenditures and appropriations from the conser-
2 vation fund and the extent to which such expenditures and appropriations
3 are consistent with the requirements of state law. The report shall
4 also include recommended maximum annual fees for the licenses and stamps
5 identified in subdivision 3 of section 11-0715 of this article. In
6 recommending such fees the board shall consider economic indicators, the
7 status of the conservation fund, and such program indicators as it may
8 deem appropriate. The commissioner shall submit such report, in its
9 entirety, to the governor and the legislature.
10 § 5. Subparagraph 1 of paragraph a of subdivision 2 of section 11-0701
11 of the environmental conservation law is REPEALED and a new subparagraph
12 1 is added to read as follows:
13 (1) A small and big game license entitles the resident holder to hunt
14 wildlife subject to the following:
15 (i) a holder who is eighteen years of age or older may hunt wildlife
16 as provided in title 9 of this article,
17 (ii) a holder who is sixteen years of age or older may hunt wildlife,
18 except big game, as provided in title 9 of this article, and
19 (iii) a holder who is between the ages of sixteen and eighteen may
20 hunt big game pursuant to the provisions of title 9 of this article
21 while the holder is accompanied by a parent, guardian or person over the
22 age of eighteen as required by section 11-0929 of this article.
23 A holder may take fish with a gun or longbow as provided in titles 9
24 and 13 of this article.
25 § 6. Paragraph b of subdivision 2 of section 11-0701 of the environ-
26 mental conservation law is amended to read as follows:
27 b. A special antlerless deer license is applicable to the hunting of
28 wild antlerless deer in a special open season fixed pursuant to subdivi-
210 12021-01-1
1 sion 6 of section 11-0903 of this article in a tract within a Wilderness
2 Hunting Area and entitles the holder of a big game license who is enti-
3 tled to hunt wild deer as provided in paragraph a license which author-
4 izes the holder to hunt big game to hunt antlerless deer in such special
5 open season, as provided in title 9 of this article if he has on his
6 person while so hunting both his big game license which authorizes the
7 holder to hunt big game and his special antlerless deer license.
8 § 7. Paragraph c of subdivision 2 of section 11-0701 of the environ-
9 mental conservation law, as amended by chapter 57 of the laws of 1993,
10 is amended to read as follows:
11 c. A junior archery license entitles a resident holder who is between
12 the ages of fourteen and sixteen years to hunt wild deer and bear with a
13 longbow during the special archery season and during the regular season
14 in areas restricted to bowhunting only , as provided in title 9 of this
15 article, as if such person held a big game license which authorizes
16 the holder to hunt big game with a bowhunting stamp affixed, subject to
17 the provisions of section 11-0929 and subdivision 6 3 of section
18 11-0713 of this article. It entitles a non-resident holder who is
19 between the ages of fourteen and sixteen years to hunt wild deer and
20 bear with a longbow during the special archery season and during the
21 regular season in areas restricted to bowhunting only , as provided in
22 title 9 of this article, as if such person held a non-resident bowhunt-
23 ing license a non-resident license which authorizes the holder to hunt
24 deer and a non-resident bear tag, subject to the provisions of section
25 11-0929 and subdivision six 3 of section 11-0713 of this article.
26 § 8. Paragraphs d and e of subdivision 2 of section 11-0701 of the
27 environmental conservation law are REPEALED.
211 12021-01-1
1 § 9. Subdivision 3 of section 11-0701 of the environmental conserva-
2 tion law, as amended by chapter 160 of the laws of 1979, is amended to
3 read as follows:
4 3. A bowhunting stamp when affixed to a big game resident license
5 which authorizes the holder to hunt big game entitles a holder who is
6 eighteen years of age or older to hunt wild deer and bear with a long-
7 bow, as provided in title 9 of this article, in a special longbow
8 season, and it entitles a holder who is between the ages of sixteen and
9 eighteen years to exercise the same privileges subject to the provisions
10 of section 11-0929 and subdivision 6 3 of section 11-0713 of this
11 article.
12 § 10. Subdivision 5 of section 11-0701 of the environmental conserva-
13 tion law, as amended by chapter 57 of the laws of 1993, is amended to
14 read as follows:
15 5. a. A combined resident hunting, fishing and small and big game
16 license hereinafter in this article referred to as a sportsman license,
17 entitles the holder to the privileges the holder would have if the hold-
18 er held separately a hunting, a fishing license and a small and big
19 game license.
20 b. A combined resident fishing, small and big game, bowhunting and
21 muzzle-loading license, hereinafter in this article referred to as a
22 resident super-sportsman license, entitles the holder to the privileges
23 the holder would have if the holder held separately a fishing license, a
24 small and big game license, a bowhunting stamp, a muzzle-loading stamp,
25 and a turkey permit.
26 § 11. Subdivision 6 of section 11-0701 of the environmental conserva-
27 tion law, as amended by chapter 646 of the laws of 1977 and as renum-
28 bered by chapter 208 of the laws of 1978 and the opening paragraph as
212 12021-01-1
1 redesignated by chapter 450 of the laws of 1991, is amended to read as
2 follows:
3 6. A combination free hunting-big small and big game hunting-fishing
4 license entitles the holder to the privileges he the holder would have
5 if he the holder held , separately , a hunting, small and big game
6 hunting license and a fishing license, provided, however, if the said
7 combination free hunting-big small and big game hunting-fishing
8 license is stamped by the issuing clerk "FISHING ONLY" the holder is
9 entitled only to the privileges he the holder would have if he the
10 holder held a fishing license.
11 § 12. Subdivision 8 of section 11-0701 of the environmental conserva-
12 tion law, as amended by chapter 450 of the laws of 1991, is amended to
13 read as follows:
14 8. A five-day seven-day fishing license entitles the non-resident
15 holder to exercise the privileges of a fishing license for the five
16 seven consecutive days specified in the license.
17 § 13. Subdivision 9 of section 11-0701 of the environmental conserva-
18 tion law is REPEALED.
19 § 14. Subdivision 11 of section 11-0701 of the environmental conserva-
20 tion law, as added by chapter 198 of the laws of 1977 and as renumbered
21 by chapter 470 of the laws of 1994, is amended to read as follows:
22 11. A muzzle-loading stamp when affixed to a big game resident
23 license which authorizes the holder to hunt big game entitles a holder
24 who is sixteen years of age or older to hunt wild deer and bear with a
25 muzzle-loading firearm, as provided in title nine 9 of this article,
26 in a special muzzle-loading firearm season.
213 12021-01-1
1 § 15. Subdivision 12 of section 11-0701 of the environmental conserva-
2 tion law, as added by chapter 450 of the laws of 1991 and as renumbered
3 by chapter 470 of the laws of 1994, is amended to read as follows:
4 12. a. A junior hunting small game license entitles the holder age
5 twelve to age sixteen thirteen to hunt small game wildlife, except
6 big game, as provided in title 9 of this article subject, specifically,
7 to the provisions of section 11-0929 of this article. It entitles such
8 holder to possess firearms as provided in section 265.05 of the penal
9 law.
10 b. A junior small and big game license entitles the holder age four-
11 teen to age sixteen to hunt wildlife, except big game, pursuant to the
12 provisions of title 9 of this article and to hunt big game during the
13 special muzzle-loading season and during the regular season, as provided
14 in title 9 of this article, as if such person held a license which
15 authorizes the holder to hunt big game with a muzzle-loading stamp
16 affixed, provided that the holder is accompanied by a parent, guardian
17 or person over the age of eighteen as required by section 11-0929 of
18 this article.
19 § 16. Subdivisions 13, 14 and 15 of section 11-0701 of the environ-
20 mental conservation law, as added by chapter 57 of the laws of 1993 and
21 as renumbered by chapter 470 of the laws of 1994, are amended to read as
22 follows:
23 13. A non-resident bowhunting license entitles a person who has not
24 been a resident of the state for more than thirty days to hunt wild deer
25 with a longbow in a special longbow season and during the regular
26 season as provided for in title 9 of this article and, when accompa-
27 nied by a non-resident bear tag, entitles the holder to hunt bear with a
28 longbow during the open bear season.
214 12021-01-1
1 14. A non-resident muzzle-loading license entitles a person who has
2 not been a resident of the state for more than thirty days to hunt wild
3 deer with a muzzleloader muzzle-loading firearm in a special muzzle-
4 loading season and during the regular season as provided for in
5 title 9 of this article and, when accompanied by a non-resident bear
6 tag, entitles the holder to hunt bear with a muzzleloader during the
7 open bear season.
8 15. A non-resident combined hunting, fishing, big game, bowhunting and
9 muzzle-loading license, hereinafter in this article referred to as a
10 non-resident super sportsman license, entitles a person who has not been
11 a resident of the state for more than thirty days to the privileges that
12 the holder would have if the holder held separately a non-resident hunt-
13 ing license, a non-resident fishing license, a non-resident big game
14 license, a non-resident bowhunting and license a non-resident muzzle-
15 loading license , except that only one bear may be taken and a non-resi-
16 dent turkey permit.
17 § 17. Section 11-0701 of the environmental conservation law is amended
18 by adding two new subdivisions 16 and 17 to read as follows:
19 16. A conservation legacy license entitles the holder to fish, hunt
20 wildlife, hunt big game with a longbow and a muzzle-loading firearm
21 during special seasons therefor, hunt turkey, enjoy the benefits of a
22 voluntary habitat stamp and receive the "New York State Conservationist"
23 magazine as if the holder of such license held separately a resident
24 super-sportsman license, a voluntary habitat stamp and a subscription to
25 the "New York State Conservationist" magazine.
26 17. A conservation patron license entitles the holder to the benefits
27 of a voluntary habitat stamp and a subscription to "New York State
28 Conservationist" magazine as if the holder of such license held sepa-
215 12021-01-1
1 rately a voluntary habitat stamp and a subscription to the "New York
2 State Conservationist" magazine.
3 § 18. Subdivisions 1 and 2 of section 11-0702 of the environmental
4 conservation law, subdivision 1 as amended by chapter 57 of the laws of
5 1993, paragraph a of subdivision 1 as amended by chapter 245 of the laws
6 of 1995 and subdivision 2 as added by chapter 352 of the laws of 1987,
7 are amended to read as follows:
8 1. There are hereby created the following lifetime hunting, fishing,
9 trapping, archery and muzzle-loading licenses and fees therefor
10 subject to the same privileges and obligations of a comparable short
11 term license:
12 Licenses Fees
13 a. Lifetime resident combined
14 hunting, fishing and big game
15 sportsman license and turkey permit.
16 If purchased, for a
17 child four years of age or younger $250.00
18 for a child age five through
19 eleven years of age $350.00
20 for a person age twelve through
21 sixty-four years of age $500.00
22 for a person age sixty-five
23 and over. $ 50.00
216 12021-01-1
1 b. Lifetime resident hunting
2 small and big game license. $250.00
3 c. Lifetime resident fishing
4 license. $250.00
5 d. Lifetime resident trapping
6 license. $250.00
7 e. Lifetime resident archery
8 stamp. $125.00
9 f. Lifetime resident muzzle-
10 loading stamp. $125.00
11 g. Lifetime resident big game hunting
12 license. $250.00
13 The holder of a lifetime resident hunting, small and big game
14 license or fishing license may, at any time, convert such license to a
15 lifetime resident combined hunting, fishing and big game sportsman
16 license and turkey permit for an additional fee equal to the existing
17 differential.
18 2. Legal residency within the state of New York shall be a prerequi-
19 site for persons to obtain, or have obtained for them, any lifetime
20 licenses included within this section. Lifetime licenses so obtained
21 shall continue to be valid for use within the state by the person to
22 whom the lifetime license was issued, regardless of a change in residen-
217 12021-01-1
1 cy of that lifetime license holder. Holders of lifetime licenses which
2 include lifetime big game privileges who become non-residents of the
3 state may continue to obtain resident bowhunting and muzzle-loading
4 stamps, including lifetime archery and muzzle-loading stamps. Holders of
5 lifetime licenses which include bowhunting and muzzle-loading privileges
6 who become non-residents of the state may continue to obtain resident
7 big game privileges, including lifetime sportsman or small and big game
8 licenses. An annual turkey permit will be granted at no additional fee
9 as an additional privilege of all existing lifetime sportsman licenses.
10 Possession of lifetime licenses is nontransferable.
11 § 19. Paragraphs c and e of subdivision 3 of section 11-0702 of the
12 environmental conservation law, as added by chapter 352 of the laws of
13 1987 and such subdivision as renumbered by chapter 626 of the laws of
14 1988, are amended to read as follows:
15 c. (i) for the replacement of a lost license upon application with a
16 notarized affidavit and a fee of five dollars ; (ii) for individualized
17 selection, up to six digits, of a lifetime license serial number for an
18 additional fee of five dollars; and (iii) and (ii) for gift
19 inscriptions, up to twenty-three characters, on lifetime licenses for an
20 additional fee of five dollars;
21 e. that lifetime license fees shall be set by regulation of the
22 department and shall be increased only when short term or annual
23 licenses are increased and shall be increased at the same percentage
24 level and that such increases shall not be retroactive.
25 § 20. Subdivision 2 of section 11-0703 of the environmental conserva-
26 tion law, as amended by chapter 57 of the laws of 1993, is amended to
27 read as follows:
218 12021-01-1
1 2. No license, permit, tag or stamp is transferable. No person shall
2 alter, change, lend to another or attempt to transfer to another any
3 license or any button, permit, tag or stamp issued therewith. No person,
4 while hunting, shall possess a license, button, permit, tag or stamp
5 which was issued to another person unless actually accompanied by the
6 person to whom such license, button, permit, tag or stamp was issued. No
7 person shall purchase, possess or use more than one junior archery,
8 junior small and big game, small and big game, big game, combined resi-
9 dent hunting, fishing and big game bowhunting, muzzle-loading, sports-
10 man, or resident super-sportsman license or stamp, non-resident bowhunt-
11 ing or muzzle-loading license, combined non-resident hunting,
12 fishing, big game, bowhunting and muzzle-loading super-sportsman
13 license, non-resident bear tag or special permit for the current license
14 year, except as permitted by rule or regulation of the department.
15 § 21. Subdivision 4 of section 11-0703 of the environmental conserva-
16 tion law, as amended by chapter 450 of the laws of 1991, paragraphs a,
17 b, c, and d as amended by chapter 57 of the laws of 1993 and paragraph e
18 as relettered by chapter 470 of the laws of 1994, is amended to read as
19 follows:
20 4. a. Five-day Non-resident fishing licenses, combined , non-resi-
21 dent hunting, fishing, big game, bowhunting and muzzle-loading non-
22 resident super-sportsman, non-resident bowhunting or muzzle-loading
23 and , or non-resident trapping licenses and , or non-resident bear
24 tags are issuable only to non-residents and persons who have been resi-
25 dents for less than thirty days immediately preceding the date of appli-
26 cation.
27 b. A person under the age of fourteen years is ineligible for a
28 junior archery license any license which authorizes the holder to hunt
219 12021-01-1
1 big game. A person under the age of sixteen years is ineligible for a
2 small and big game license , a combined resident hunting, fishing and
3 big game license sportsman or resident super-sportsman, combined
4 non-resident hunting, fishing, big game, bowhunting, and muzzle-load-
5 ing super-sportsman, non-resident big game, or non-resident bowhunt-
6 ing , non-resident or muzzle-loading license, or a muzzle-loading
7 stamp or a bowhunting stamp. A person is ineligible for a hunting,
8 small and big game, junior small game, junior small and big game, big
9 game, junior archery, combined resident hunting, fishing and big game
10 sportsman and resident super-sportsman, combined non-resident hunt-
11 ing, fishing, big game, bowhunting and muzzle-loading super-sportsman,
12 or non-resident bowhunting or non-resident muzzle-loading license
13 unless he such person meets the requirements of subdivision 6 3 of
14 section 11-0713 of this article.
15 c. Only the following persons are eligible for a combined resident
16 hunting, fishing and big game license licenses: (1) persons who have
17 been residents in the state for more than thirty days immediately
18 preceding the date of application for the licenses, or who are enrolled
19 in a full-time course at a college or university within the state and
20 who are in residence in the state for the school year, or who are out of
21 state or foreign exchange high school students enrolled in a full-time
22 course in a high school within the state and who are in residence in the
23 state for the school year; (2) Indian residents or members of the six
24 nations residing on any reservation wholly or partly within the state;
25 (3) members of the United States armed forces in active service,
26 stationed in this state, regardless of the place of residence at the
27 time of entry into the service; and (4) persons privileged under subdi-
220 12021-01-1
1 vision 5 of section 11-0707 of this article to take wildlife, other than
2 deer and bear, as if they held hunting licenses.
3 d. Only persons who possess a resident small and big game license
4 or , the big game license portion of the combination free hunting-big
5 small and big game hunting-fishing license, or the combined resident
6 hunting, fishing and big game a sportsman or resident super-sportsman
7 license are eligible for a bowhunting stamp or a muzzle-loading
8 stamp.
9 e. A person under the age of twelve years is ineligible for a junior
10 hunting small game license.
11 § 22. Paragraph a of subdivision 5 of section 11-0703 of the environ-
12 mental conservation law, as amended by chapter 237 of the laws of 1993,
13 is amended to read as follows:
14 a. One-day , three-day and five-day seven-day fishing licenses
15 expire on the date stated on them.
16 § 23. Paragraphs a, b and c of subdivision 6 of section 11-0703 of the
17 environmental conservation law, as added by chapter 57 of the laws of
18 1993 and subparagraph 4 of paragraph a as renumbered by chapter 470 of
19 the laws of 1994, are amended to read as follows:
20 a. Except as provided in section 11-0707 and section 11-0709 of this
21 article, no person shall (1) hunt wildlife, other than deer or bear, or
22 take fish with a gun, unless such person holds and is entitled to exer-
23 cise the privileges of a hunting, junior small game, junior small and
24 big game, small and big game, combination free hunting-big small and
25 big game hunting-fishing license , a combined resident hunting, fish-
26 ing and big game license sportsman or resident super-sportsman, or a
27 combined non-resident hunting, fishing, big game, bowhunting and
28 muzzle-loading super-sportsman license; (2) hunt antlerless deer in a
221 12021-01-1
1 special open season therefor pursuant to subdivision 6 of section
2 11-0903 of this article unless such person holds and is entitled to
3 exercise the privileges of and has on his or her person while so hunting
4 both a small and big game, big game or , junior small and big game,
5 junior archery license or , combination free hunting-big game small
6 and big game hunting-fishing license , or a combined resident hunting,
7 fishing and big game license sportsman, or combined resident super-
8 sportsman, non-resident hunting, fishing, big game, bowhunting and
9 muzzle-loading super-sportsman or non-resident bowhunting or muzzle-
10 loading license, and a special antlerless deer license; (3) take fish or
11 frogs in the manner described in subdivision 4 of section 11-0701 of
12 this article unless such person is entitled to exercise the privileges
13 of a fishing license; (4) trap wildlife unless such person holds a trap-
14 ping license.
15 b. Except as provided in section 11-0707 and section 11-0709 of this
16 article, no resident shall (1) hunt wild deer or bear unless such person
17 holds and is entitled to exercise the privileges of a small and big
18 game, junior archery or , junior small and big game, combination free
19 hunting-big small and big game hunting-fishing license , or a
20 combined resident hunting, fishing and big game sportsman, or resident
21 super-sportsman license, and meets the requirements of subdivisions 2
22 and 3 of section 11-0701 or subdivision 2 or 4 of section 11-0715 this
23 article; (2) hunt wild deer or bear with a longbow in a special longbow
24 season unless such person holds and is entitled to exercise the privi-
25 leges of a small and big game license or , junior small and big game,
26 junior archery, combination free hunting-big game small and big game
27 hunting-fishing license , or a combined resident hunting, fishing and
28 big game sportsman, or resident super-sportsman license with a bowhunt-
222 12021-01-1
1 ing stamp affixed or junior archery license and meets the requirements
2 of subdivisions 2 and 3 of section 11-0701 or subdivision 2 or 4 of
3 section 11-0715 this article; or (3) hunt wild deer or bear with a
4 muzzle-loading firearm in a special muzzle-loading firearm season unless
5 such person holds a small and big game, or combination free hunting-
6 big small and big game hunting-fishing license or a combined resident
7 hunting, fishing and big game , sportsman, resident super-sportsman
8 license with a muzzle-loading stamp affixed, or junior small and big
9 game license and meets the requirements of subdivision 2 of section
10 11-0701 this article.
11 c. Except as provided in section 11-0707 and section 11-0709, no non-
12 resident shall (1) hunt wild deer unless such person holds and is enti-
13 tled to exercise the privileges of a big game, junior archery, a
14 combined junior small and big game, non-resident hunting, fishing, big
15 game, bowhunting and muzzle-loading license super-sportsman, or non-re-
16 sident bowhunting license or non-resident muzzle-loading license;
17 (2) hunt wild deer with a longbow in a special longbow season unless
18 such person holds and is entitled to exercise the privileges of a
19 combined non-resident hunting, fishing, big game, bowhunting and
20 muzzle-loading license super-sportsman, non-resident bowhunting, or a
21 junior archery license; (3) hunt wild deer with a muzzle-loading firearm
22 in a special muzzle-loading firearm season unless such person holds a
23 combined junior small and big game, non-resident hunting, fishing,
24 big game bowhunting and muzzle-loading license super-sportsman or a
25 non-resident muzzle-loading license; (4) hunt wild bear unless such
26 person holds a junior archery or junior small and big game, license or a
27 non-resident bear tag in combination with one of the non-resident deer
28 licenses listed in subparagraph 1, 2 or 3 of this paragraph.
223 12021-01-1
1 § 24. Paragraphs a, b and d of subdivision 2 of section 11-0705 of the
2 environmental conservation law, paragraphs a and b as amended by chapter
3 57 of the laws of 1993 and paragraph d as amended by chapter 209 of the
4 laws of 1980, are amended to read as follows:
5 a. Holders of a hunting, junior hunting, combined non-resident hunt-
6 ing, fishing, big game, bowhunting and muzzle-loading, combination free
7 hunting-big game hunting-fishing license or combined resident hunting,
8 fishing and big game license, which authorizes the holder to hunt wild-
9 life other than big game while exercising the privileges of a hunting
10 such license, shall have the hunting license back tag issued with
11 their license attached to and displayed on the back of the outer garment
12 between the shoulders in such manner that all figures are plainly visi-
13 ble at all times.
14 b. Holders of a big game, combination free hunting-big game hunting-
15 fishing, combined resident hunting, fishing and big game, combined non-
16 resident hunting, fishing, big game, bowhunting and muzzle-loading,
17 non-resident bowhunting or muzzle-loading or junior archery license
18 which authorizes the holder to hunt big game, while hunting wild deer or
19 bear, shall have the big game, combination free hunting-big game hunt-
20 ing-fishing or junior archery license back tag issued with their big
21 game, combination free hunting-big game hunting-fishing, combined resi-
22 dent hunting, fishing and big game, combined non-resident hunting, fish-
23 ing, big game, bowhunting and muzzle-loading, non-resident bowhunting or
24 muzzle-loading or junior archery license so attached and displayed.
25 d. Notwithstanding the provisions of paragraphs a, b and c of this
26 subdivision, a hunting license holder shall not be required to display
27 such license tag in the Northern Zone or the Catskill Park.
224 12021-01-1
1 § 25. Subdivision 2 of section 11-0709 of the environmental conserva-
2 tion law is amended to read as follows:
3 2. Whenever taking of destructive or menacing wildlife is authorized
4 in section 11-0523 of this article, such taking is exempt from the
5 requirement of a hunting, big game or trapping license which author-
6 izes the holder to hunt wildlife or trap, unless the provision authoriz-
7 ing such taking specifies that such license is required.
8 § 26. Subdivision 2 of section 11-0713 of the environmental conserva-
9 tion law, as amended by chapter 450 of the laws of 1991 and as renum-
10 bered by section 5 of part D of chapter 61 of the laws of 2000, is
11 amended to read as follows:
12 2. The issuing officer shall not issue a junior archery or junior
13 small and big game license to a person between the ages of fourteen and
14 sixteen or a junior hunting small game license to a person between the
15 ages of twelve and sixteen, years thirteen unless at the time of issu-
16 ance applicant is accompanied by his parent or legal guardian who shall
17 consent to the issuance of the license and shall so signify by signing
18 his name in ink across the face of it. At no time shall hunting such
19 licenses be issued by mail to persons between the ages of twelve and
20 sixteen years.
21 § 27. Paragraphs a, b, c and d of subdivision 3 of section 11-0713 of
22 the environmental conservation law, as amended by chapter 450 of the
23 laws of 1991 and such subdivision as renumbered by section 5 of part D
24 of chapter 61 of the laws of 2000, paragraph a, subparagraph 1 of para-
25 graph b and paragraphs c and d as amended by chapter 57 of the laws of
26 1993, are amended to read as follows:
27 a. Subject to the provisions of paragraphs b and c of this subdivi-
28 sion, the issuing officer shall not issue a hunting, combination free
225 12021-01-1
1 hunting-big game hunting-fishing, combined resident hunting, fishing and
2 big game, big game, junior hunting, junior archery, combined non-resi-
3 dent hunting, fishing, big game, bowhunting and muzzle-loading, non-re-
4 sident bowhunting, non-resident muzzle-loading or trapping license or
5 bowhunting stamp or muzzle-loading stamp license, stamp, tag, button,
6 permit, or permit application which authorizes the holder to hunt wild-
7 life, to any person unless the applicant presents:
8 (1) a hunting, five-day hunting, combined hunting and fishing, combi-
9 nation free hunting-big game hunting-fishing, combined resident hunting,
10 fishing and big game, combined small game and big game, big game, junior
11 archery, junior hunting, combined non-resident hunting, fishing, big
12 game, bowhunting and muzzle-loading, non-resident bowhunting, non-resi-
13 dent muzzle-loading or trapping license which authorizes the holder to
14 hunt wildlife issued to him previously; or
15 (2) an affidavit from a license issuing officer stating that applicant
16 previously has been issued a hunting, five-day hunting, combined hunt-
17 ing and fishing, combination free hunting-big game hunting-fishing,
18 combined resident hunting, fishing and big game, combined small game and
19 big game, big game, trapping, junior hunting, combined non-resident
20 hunting, fishing, big game, bowhunting and muzzle-loading, non-resident
21 bowhunting, non-resident muzzle-loading or junior archery license which
22 authorizes the holder to hunt wildlife; or
23 (3) a certificate of qualification in responsible hunting, responsible
24 bowhunting and responsible trapping practices, including safety, ethics
25 and landowner-hunter relations, issued or honored by the department,
26 pursuant to this subdivision.
27 b. (1) The issuing officer shall not issue a bowhunting stamp or
28 non-resident bowhunting or junior archery license or stamp which
226 12021-01-1
1 authorizes the holder to exercise the privilege of hunting big game with
2 a longbow to any person unless the applicant presents a bowhunting
3 stamp or a non-resident bowhunting or junior archery license New York
4 state license or stamp which authorizes the holder to exercise the priv-
5 ilege of hunting big game with a longbow issued in 1980 or later, an
6 affidavit as provided in subparagraph (2) of paragraph a of this subdi-
7 vision or a certificate of qualification in responsible bowhunting prac-
8 tices issued or honored by the department.
9 (2) The issuing officer shall not issue a trapping license to any
10 person unless the applicant presents a trapping license issued to him
11 previously, an affidavit as provided in subparagraph (2) of paragraph a
12 of this subdivision or a certificate of qualification in responsible
13 trapping practices.
14 c. The issuing officer shall not issue a bowhunting stamp or muzzle-
15 loading stamp to any resident unless the applicant presents a small and
16 big game, combination free hunting-big small and big game hunting-
17 fishing, or combined resident hunting, fishing and big game sportsman
18 or resident super-sportsman license issued to that person for the corre-
19 sponding license year.
20 d. Certifications of qualification in responsible hunting, responsible
21 bowhunting and responsible trapping practices may be made by duly quali-
22 fied and designated persons, whose fitness to give instructions in said
23 practices has been determined by an agent of the department. The depart-
24 ment may designate any person it deems qualified to act as its agent in
25 the giving of instruction and the making of certification. No charge
26 shall be made for any certificate or instruction given to a person to
27 qualify him or her to obtain a hunting, combined resident hunting,
28 fishing and big game, big game, combined non-resident, hunting, fishing,
227 12021-01-1
1 big game, bowhunting, muzzle-loading, non-resident bowhunting or
2 muzzle-loading, junior hunting, junior archery or trapping license or
3 bowhunting stamp other than for certain instruction and materials
4 accredited by the department to provide preparation for final instruc-
5 tion and testing by agents of the department or for replacement educa-
6 tion certificates for a commission of one dollar to the issuing agent.
7 The department shall make available to the public courses without charge
8 which do not require additional preparation at the expense of students,
9 and may also offer optional courses which require preparatory instruc-
10 tion which may be at the expense of the student. The department may
11 make rules and regulations which in its opinion are calculated to
12 effectuate better the purpose of this subdivision.
13 § 28. Subdivision 4 of section 11-0713 of the environmental conserva-
14 tion law, as amended by chapter 450 of the laws of 1991, paragraph a as
15 amended by chapter 470 of the laws of 1994 and such subdivision as
16 renumbered by chapter 61 of the laws of 2000, is amended to read as
17 follows:
18 4. a. A person who has lost or accidentally destroyed a hunting,
19 fishing, combination free hunting-big game hunting-fishing, combined
20 resident hunting, fishing and big game, big game, junior archery, junior
21 hunting, combined non-resident hunting, fishing, big game, bowhunting
22 and muzzle-loading, non-resident bowhunting, non-resident muzzle-loading
23 or trapping license , bowhunting stamp or muzzle-loading or stamp
24 authorizing the holder to hunt, fish, or trap may apply to the officer
25 who issued it for a certificate in lieu thereof. Such officer shall
26 issue a certificate stating the name and address of the applicant, the
27 type of license issued and the fee, if any, paid for it. Applications
228 12021-01-1
1 and certificates furnished by the department shall be used for this
2 purpose.
3 b. A person who has lost or accidentally destroyed a button or tag
4 issued with such a license or a hunting, junior hunting, junior arch-
5 ery, combination free hunting-big game hunting, combined hunting and big
6 game, or big game license tag or stamp may apply to the department
7 any license issuing officer for a duplicate and the department shall
8 issue a duplicate button or tag when satisfied that the application is
9 made in good faith. A duplicate combination free hunting-big small and
10 big game hunting-fishing tag shall be issued free of charge.
11 c. A person who has lost or accidentally destroyed a deer management
12 permit may apply to any license issuing officer for a duplicate. Such
13 officer shall issue a duplicate tag when satisfied that the application
14 is made in good faith. The officer shall also issue a certificate stat-
15 ing the name and address of the applicant, the identifying number of the
16 tag that is being issued and the fee, if any, paid for it. Applications
17 and tags furnished by the department shall be used for this purpose.
18 § 29. Subdivision 1 of section 11-0715 of the environmental conserva-
19 tion law, is amended to read as follows:
20 1. When any license or stamp listed in this section is issued by the
21 department or an officer or employee of the department, the license fee
22 is the amount specified in this section or regulations of the department
23 adopted pursuant to this section plus the amount, if any, specified as a
24 fee to the issuing clerk.
25 § 30. Subdivision 2 of section 11-0715 of the environmental conserva-
26 tion law, as amended by chapter 450 of the laws of 1991, is amended to
27 read as follows:
229 12021-01-1
1 2. A resident in the state for thirty days immediately prior to the
2 date of application who has attained the age of seventy is entitled to
3 receive a fishing license, a hunting license, a bow hunting stamp, a
4 muzzle-loading stamp, a trapping license, a special second deer permit,
5 a big game hunting license and combination hunting, big game and fishing
6 license for the license year beginning October first, nineteen hundred
7 ninety-one, and annually thereafter, all licenses, stamps, tags,
8 buttons, and permits authorized by this title for which he or she is
9 eligible, except turkey permits, renewable each year for a four five
10 dollar license fee and one dollar to the issuing clerk ; a member of
11 the Shinnecock tribe or the Poospatuck tribe or a member of the six
12 nations, residing on any reservation wholly or partly within the state,
13 is entitled to receive free of charge a fishing license, a hunting
14 small and big game license, a muzzle-loading stamp, a big game
15 license, a trapping license, a special second deer permit and a bow
16 hunting stamp; and a resident who is blind is entitled to receive a
17 fishing license free of charge. For the purposes of this subdivision a
18 person is blind only if either: (a) his central visual acuity does not
19 exceed 20/200 in the better eye with correcting lenses, or (b) his visu-
20 al acuity is greater than 20/200 but is accompanied by a limitation of
21 the field of vision such that the widest diameter of the visual field
22 subtends an angle no greater than 20 degrees.
23 A person entitled to a free license as provided in this subdivision
24 shall be issued a combination free hunting-big small and big game
25 hunting-fishing license renewable each year. Those free licensees not
26 qualified to receive a hunting license shall have stamped across the
27 face thereof "FISHING ONLY", and the issuing clerk shall destroy the
28 accompanying back tag for such license.
230 12021-01-1
1 A resident in the state for a period of thirty days immediately prior
2 to the date of application who has attained the age of sixty-five is
3 entitled to receive a combined hunting, fishing and big game sportsman
4 license at the cost of four five dollars as a license fee and one
5 dollar to the issuing clerk .
6 § 31. Subdivision 3 of section 11-0715 of the environmental conserva-
7 tion law is REPEALED and a new subdivision 3 is added to read as
8 follows:
9 3. Each applicant for a license, permit or stamp shall pay to the
10 issuing officer a fee, according to the license, permit or stamp issued
11 and the residence or other qualification of the applicant.
12 Fee
13 Fee amounts shall be set by regulation of the department. In no event
14 shall such amounts exceed the amounts recommended by the conservation
15 fund advisory board pursuant to section 11-0327 of this article. Fees
16 for the 2001-2002 license year only shall be amounts which do not exceed
17 the maximum fee amounts recommended by the conservation fund advisory
18 board at a regular meeting held between December 1, 2000 and April 15,
19 2001.
20 § 32. Subdivision 4 of section 11-0715 of the environmental conserva-
21 tion law, as amended by chapter 450 of the laws of 1991, is amended to
22 read as follows:
23 4. A person resident in the state for at least thirty days immediately
24 prior to the date of application, who has been honorably discharged from
25 service in the armed forces of the United States and certified as having
26 a forty per cent or greater service-connected disability is entitled to
27 receive a combination hunting-big game hunting-fishing license, a bow
28 hunting stamp, a muzzle loading stamp and a trapping license all
231 12021-01-1
1 licenses, stamps, tags, buttons, and permits authorized by this title
2 for which he or she is eligible, except turkey permits, renewable each
3 year for a four five dollar fee and one dollar to the issuing clerk .
4 §33. Subdivision 5 of section 11-0715 of the environmental conserva-
5 tion law is REPEALED and a new subdivision 5 is added to read as
6 follows:
7 5. a. License issuing officers may retain 1.1 percent of the gross
8 proceeds from the sale of the following:
9 (1) non-resident hunting license
10 (2) non-resident big game license
11 (3) non-resident trapping license
12 (4) bear tag
13 (5) non-resident bowhunting license
14 (6) non-resident muzzle-loading license
15 (7) non-resident super-sportsman license
16 (8) non-resident turkey permit
17 (9) all lifetime licenses listed in section 11-0702 of this title.
18 b. License issuing officers may retain 5.5 percent of the gross
19 proceeds from sale of all other licenses, stamps, certificates and
20 permits, including any application fees associated with such licenses,
21 stamps, certificates and permits.
22 § 34. The opening paragraph of paragraph a of subdivision 2 of section
23 11-0719 of the environmental conservation law, as amended by chapter 119
24 of the laws of 1999, is amended to read as follows:
25 The department may revoke the hunting, big game, junior archery or
26 trapping license or the hunting and big game hunting portions of the
27 combination free hunting-big game hunting-fishing license, or any or all
28 of them, or any stamp or tag, and licenses, tags, and stamps which
232 12021-01-1
1 authorize the holder to hunt and/or trap wildlife, and may deny the
2 privilege of obtaining such license or such portions of the combination
3 free hunting-big game hunting-fishing license and of hunting or of trap-
4 ping anywhere in the state, licenses, tags, and stamps and may deny the
5 privileges of hunting and/or trapping with or without a license , .
6 § 35. Subdivision 3 of section 11-0719 of the environmental conserva-
7 tion law, as amended by chapter 158 of the laws of 1999, is amended to
8 read as follows:
9 3. A junior hunting small game license issued to a person who is
10 between the ages of twelve and sixteen fourteen years or a junior
11 archery or junior small and big game license issued to a person who is
12 between the ages of fourteen and sixteen years may be revoked by the
13 department upon proof satisfactory to the department that such person,
14 while under the age of sixteen, has engaged in hunting wildlife with a
15 gun or longbow, in circumstances in which a license is required, while
16 not accompanied by his parent, guardian or other adult as provided in
17 either subdivision 1 or subdivision 3 of section 11-0929 of this arti-
18 cle. If such license or privilege is revoked the department shall fix
19 the period of such revocation, which is not to exceed four years. The
20 department may require that such person successfully complete a depart-
21 ment sponsored course and obtain a certificate of qualification in
22 responsible hunting or responsible bowhunting practices before being
23 issued another hunting or bowhunting license.
24 § 36. Paragraph b of subdivision 7 of section 11-0903 of the environ-
25 mental conservation law, as amended by chapter 57 of the laws of 1993,
26 is amended to read as follows:
27 b. Deer may be taken only by holders of big game or combined resident
28 hunting, fishing and big game or combination free hunting-big game hunt-
233 12021-01-1
1 ing-fishing or combined non-resident hunting, fishing, big game,
2 bowhunting and muzzle-loading or non-resident bowhunting and non-resi-
3 dent muzzle-loading licenses a license authorizing the taking of big
4 game who have also obtained a special permit provided by the department
5 and issued by the town clerk of each town where such season is fixed;
6 § 37. Subparagraph 1 of paragraph e of subdivision 9 of section
7 11-0903 of the environmental conservation law, as amended by chapter 911
8 of the laws of 1990, is amended to read as follows:
9 (1) a requirement that hunting deer during such special season shall
10 be only by holders of both a big game license authorizing the taking
11 of big game and a special permit for the area where hunting is permit-
12 ted , .
13 § 38. Paragraph a of subdivision 1 of section 11-0907 of the environ-
14 mental conservation law, as amended by chapter 330 of the laws of 1994,
15 is amended to read as follows:
16 a. Wild deer without antlers or having antlers measuring less than
17 three inches in length shall not be taken unless it is taken (1) by long
18 bow in a special long bow season established in subdivision 3 of this
19 section, or (2) by muzzle-loading firearm in a special muzzle-loading
20 firearm season established in subdivision 8 of this section, or (3) by
21 long bow in Westchester and Suffolk Counties in a year in which a regu-
22 lar season for deer of either sex is established for such counties, or
23 (4) in a special open season for deer of either sex fixed by order
24 regulation pursuant to subdivision 5 or 7 of section 11-0903 of this
25 title, or (5) pursuant to a special antlerless deer license in a special
26 open season for antlerless deer in a tract within a Wilderness Hunting
27 Area fixed by regulation pursuant to subdivision 6 of section 11-0903 of
28 this title, or (6) pursuant to a deer management permit by a person
234 12021-01-1
1 eligible to take such deer pursuant thereto as provided in section
2 11-0913 of this title, or (7) pursuant to a permit issued to an eligible
3 non-ambulatory person, pursuant to subdivision two 2 of section
4 11-0931 of this title, while in possession of a valid big game license
5 issued by the department which authorizes the holder to hunt big game.
6 Nothing in this subparagraph shall be construed to limit the power of
7 the department to designate by regulation an area or areas of the state
8 consisting of a county or part of a county where such season shall apply
9 and whether the number of such special permits shall be limited.
10 § 39. Paragraph c of subdivision 1 of section 11-0907 of the environ-
11 mental conservation law, as amended by chapter 600 of the laws of 1993,
12 is amended to read as follows:
13 c. The limit for wild deer is one deer per person in a license year
14 except that (1) a person entitled to exercise the privileges of a
15 special antlerless deer license may take an antlerless deer while hunt-
16 ing pursuant to such license in addition to the limit of one deer in a
17 license year otherwise applicable, and (2) a person who is a member of
18 a hunting group holding a deer management permit or permits issued
19 pursuant to section 11-0913 may take additional deer while hunting in
20 accordance with the conditions of the permit or permits, and (3) the
21 holder of a bowhunting license or stamp or a muzzle-loading license or
22 stamp may take up to two additional deer, pursuant to regulations
23 promulgated by the department, and (4) an eligible non-ambulatory
24 person, pursuant to subdivision two 2 of section 11-0931 of this chap-
25 ter may take a deer of either sex in any deer wildlife management unit
26 area where deer management permits have been issued by the department,
27 while in possession of a valid big game license and a special big
28 game permit, issued by the department, for a fee of five dollars which
235 12021-01-1
1 authorizes the holder to hunt big game. Nothing contained in this
2 section shall be construed to limit the power of the department to
3 designate by regulation an area or areas of the state consisting of a
4 county or part of a county where such season shall apply and whether the
5 number of such special permits shall be limited.
6 § 40. Paragraph c of subdivision 1 of section 11-0907 of the environ-
7 mental conservation law, as amended by chapter 911 of the laws of 1990
8 and subparagraph 2 as amended by chapter 119 of the laws of 1991, is
9 amended to read as follows:
10 c. The limit for wild deer and bear is one deer and one bear per
11 person in a license year except that (1) a person entitled to exercise
12 the privileges of a special antlerless deer license may take an antler-
13 less deer while hunting pursuant to such license in addition to the
14 limit of one deer in a license year otherwise applicable, and (2) a
15 person who is a member of a hunting group holding a deer management
16 permit or permits issued pursuant to section 11-0913 may take additional
17 deer while hunting in accordance with the conditions of the permit or
18 permits, and (3) the holder of a bowhunting license or stamp or a
19 muzzle-loading license or stamp may take up to two additional deer,
20 pursuant to regulations promulgated by the department, and (4) an eligi-
21 ble non-ambulatory person, pursuant to subdivision two 2 of section
22 11-0931 of this chapter may take a deer of either sex in any deer
23 wildlife management unit area where deer management permits have been
24 issued by the department, while in possession of a valid big game
25 license and a special big game permit, issued by the department, for a
26 fee of five dollars which authorizes the holder to hunt big game. Noth-
27 ing contained in this section shall be construed to limit the power of
28 the department to designate by regulation an area or areas of the state
236 12021-01-1
1 consisting of a county or part of a county where such season shall apply
2 and whether the number of such special permits shall be limited.
3 § 41. Paragraphs d and e of subdivision 1 of section 11-0907 of the
4 environmental conservation law are REPEALED and new paragraphs d and e
5 are added to read as follows:
6 d. (1) A person who holds licenses or stamps authorizing the holder to
7 hunt deer during a special archery season and the regular open season
8 and who has taken a deer by longbow in a special archery season and who
9 has not taken a deer in a regular open season may, in addition to the
10 limit of one deer in a license year otherwise applicable, take during
11 the same license year additional deer as specified by department regu-
12 lation in a special archery season following the close of the regular
13 open deer season.
14 (2) A person who holds licenses or stamps authorizing the holder to
15 hunt deer during a special archery season and the regular open season
16 and who has taken a deer by longbow in the regular open season for deer
17 in Westchester or Suffolk counties may, in addition to the limit of one
18 deer in a license year otherwise applicable, take during the same
19 license year additional deer as specified by department regulation
20 during such Westchester or Suffolk county regular open deer season.
21 e. A person who holds licenses or stamps authorizing the holder to
22 hunt deer during a special muzzle-loading season and the regular open
23 season and who has taken a deer by muzzle-loading firearm in a muzzle-
24 loading season and who has not taken a deer in a regular open season
25 may, in addition to the limit of one deer in a license year otherwise
26 applicable, take during the same year additional deer as specified by
27 department regulation in a special muzzle-loading season following the
28 close of the regular deer season.
237 12021-01-1
1 § 42. Paragraph a of subdivision 3 of section 11-0907 of the environ-
2 mental conservation law, as amended by chapter 600 of the laws of 1993,
3 is amended to read as follows:
4 a. In every area identified in column one of the table set forth in
5 subdivision 2 of this section, except Westchester and Suffolk Counties
6 in which a regular open season for taking deer by firearms is estab-
7 lished and effective, a special open season is established for taking
8 deer of either sex, by the use of a long bow only by holders of a big
9 game, combined small game and big game, combined hunting, fishing and
10 big game small and big game, sportsman, or combination free hunting-
11 big small and big game hunting-fishing license to which a valid
12 bowhunting stamp is affixed or to holders of a junior archery, resident
13 or non-resident super-sportsman, or non-resident bowhunting license.
14 § 43. Paragraph a of subdivision 3 of section 11-0907 of the environ-
15 mental conservation law, as amended by chapter 694 of the laws of 1980,
16 is amended to read as follows:
17 a. In every area identified in column one of the table set forth in
18 subdivision 2 of this section, except Westchester and Suffolk Counties
19 in which a regular open season for taking deer by firearms is estab-
20 lished and effective, a special open season is established for taking
21 deer of either sex, and bear, by the use of a long bow only by holders
22 of a big game, combined small game and big game, combined hunting,
23 fishing and big game small and big game, sportsman, or combination free
24 hunting-big small and big game hunting-fishing license to which a
25 valid bowhunting stamp is affixed or to holders of a junior archery,
26 resident or non-resident super-sportsman, or non-resident bowhunting
27 license.
238 12021-01-1
1 § 44. Paragraph a of subdivision 5 of section 11-0907 of the environ-
2 mental conservation law, as amended by chapter 768 of the laws of 1978,
3 is amended to read as follows:
4 a. In Monroe County, the area bounded and described as follows: On
5 the west by Route 261 (Manitou Road) beginning at Manitou Beach on Lake
6 Ontario in the town of Greece and continuing southerly along such road
7 to its intersection with the Barge Canal, thence easterly along such
8 canal to East Avenue in the village of Pittsford, thence northeasterly
9 along East Avenue to Allen Creek in the town of Brighton, thence north-
10 erly along Allen Creek to Irondequoit Creek, thence northerly along
11 Irondequoit Creek to Irondequoit Bay, thence northerly along the easter-
12 ly shore of Irondequoit Bay to Lake Ontario; except that deer of either
13 sex may be taken during the regular and special deer hunting seasons
14 provided for in this title by the use of a long bow longbow by holders
15 of a big game license to which a valid bow hunting stamp is affixed
16 during the regular and special deer hunting seasons provided for in this
17 title licenses which authorize the holder to hunt deer during a special
18 archery season and provided further that this exception permitting the
19 taking of deer by a long bow longbow shall not apply within an area in
20 the town of Greece bounded and described as follows: On the west by Long
21 Pond Road beginning at Latta Road and continuing southerly along such
22 road to its intersection with Maiden Lane, thence easterly along Maiden
23 Lane to its intersection with Mt. Read Blvd., thence northerly along Mt.
24 Read Blvd. to its intersection with Latta Road, thence westerly along
25 Latta Road to its intersection with Long Pond Road at the point of
26 beginning.
239 12021-01-1
1 § 45. 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 longbow only by holders of a big game, combined small
7 game and big game, combined hunting, fishing and big game or combination
8 free hunting-big game hunting-fishing license to which a valid bowhunt-
9 ing stamp is affixed or a junior archery license, licenses which
10 authorize the holders to hunt deer during a special archery season as
11 follows: during the special deer season stated in subdivision three and
12 during the regular season stated in subdivision two 2 of this section,
13 deer of either sex may be taken.
14 § 46. Paragraph a of subdivision 8 of section 11-0907 of the environ-
15 mental conservation law, as amended by chapter 241 of the laws of 1997,
16 is amended to read as follows:
17 a. In every area identified in column one of the table set forth in
18 subdivision 2 of this section, except those areas restricted to special
19 seasons for taking deer by longbow only, special open seasons may be
20 established by regulation for taking deer and/or bear, by the use of
21 muzzle-loading firearms, of not less than .44 caliber shooting a single
22 projectile, by the holders of a small and big game, combined small game
23 and big game, combined hunting, fishing and big game or sportsman or
24 combination free hunting-big small and big game hunting-fishing
25 license to which a valid muzzle-loading stamp is affixed or to holders
26 of a junior small and big game, resident or non-resident super-sports-
27 man, or non-resident muzzle-loading license.
240 12021-01-1
1 § 47. Paragraph b of subdivision 1 of section 11-0913 of the environ-
2 mental conservation law, as amended by chapter 401 of the laws of 1985,
3 is amended to read as follows:
4 b. In the issuance of permits, the department may give preference to
5 state residents resident license holders and may give preference , to
6 the extent of not more than 50 per cent of the permits to be issued for
7 a specified area, to disabled veterans having 40 percent or greater
8 disability, and to the applications of groups which include a person or
9 the spouse of a person, provided that such spouse lives in the same
10 household, who owns at least 50 acres of land in one parcel in the spec-
11 ified area and which are postmarked not later than midnight of the last
12 day of the period prescribed by department order for making applica-
13 tion .
14 § 48. Paragraph d of subdivision 2 of section 11-0913 of the environ-
15 mental conservation law is REPEALED and paragraphs e, f and g are renum-
16 bered paragraphs d, e and f.
17 § 49. Subdivisions 3, 4 and 7 of section 11-0913 of the environmental
18 conservation law, as amended by chapter 57 of the laws of 1993, are
19 amended to read as follows:
20 3. Each member of a group issued a permit pursuant to this section
21 shall possess a big game, combined resident hunting, fishing and big
22 game, combination free hunting-big game hunting-fishing license or
23 combined non-resident hunting, fishing, big game, bowhunting and
24 muzzle-loading license license which authorizes the holder to hunt deer
25 during the regular open season before the permit may be validated.
26 4. During a license year, no person shall use more than one big game,
27 combined resident hunting, fishing and big game, combination free hunt-
28 ing-big game hunting-fishing license or combined non-resident hunting,
241 12021-01-1
1 fishing, big game, bowhunting and muzzle-loading license license which
2 authorizes the holder to hunt deer during the regular open season in
3 making application for a deer management permit.
4 7. The department shall charge and receive a fee of ten dollars for
5 the application and the processing of such permit or permits. Appli-
6 cants who are successful in the computerized selection shall receive the
7 permit or permits free of any additional charge. The application fee
8 shall be non-refundable. The department may waive the application fee
9 for holders of a combined resident hunting, fishing and big game
10 junior archery, junior small and big game, sportsman, resident super-
11 sportsman, conservation legacy license or non-resident super-sportsman
12 license or a combined non-resident hunting, fishing, big game, bowhunt-
13 ing and muzzle-loading license .
14 § 50. Section 11-0929 of the environmental conservation law, as
15 amended by chapter 694 of the laws of 1980, subdivisions 1 and 3 as
16 amended by chapter 450 of the laws of 1991, is amended to read as
17 follows:
18 § 11-0929. Hunting by minors.
19 1. A licensee between the ages of twelve and fourteen years shall not
20 hunt wildlife with a gun or a longbow unless he or she is accompanied by
21 his or her parent or legal guardian or relative over the age of twenty-
22 one designated in writing by his or her parent who holds a hunting, or
23 combined hunting, fishing and big game or combination free hunting-big
24 game hunting-fishing license which authorizes the holder to hunt wild-
25 life; a licensee between the ages of fourteen and sixteen shall not hunt
26 wildlife with a gun or longbow unless he or she is accompanied by his or
27 her parent holding such license, or a person over eighteen years of age,
242 12021-01-1
1 designated in writing by his or her parent or legal guardian, holding
2 such license.
3 2. A licensee under the age of eighteen years who has not previously
4 had a big game, combined small game and big game or combined hunting,
5 fishing and big game license license which authorizes the holder to
6 hunt big game issued to him and engaged in hunting pursuant to it shall
7 not hunt deer or bear unless he or she is accompanied by his parent or
8 legal guardian, or by a person over eighteen years of age who has had at
9 least one year's experience in hunting deer or bear, and such accompany-
10 ing parent, guardian or person holds a big game, combined small game
11 and big game, combined hunting, fishing and big game or combination free
12 hunting-big game hunting-fishing license license which authorizes the
13 holder to hunt big game.
14 3. A junior archery licensee, between the ages of fourteen and sixteen
15 years, shall not hunt deer or bear unless he is accompanied by his
16 parent or legal guardian, or by a person over eighteen years of age who
17 has had at least one year's experience in hunting deer or bear by long-
18 bow, and such accompanying parent, guardian or person holds a big game,
19 combined hunting, fishing and big game or combination free hunting-big
20 game hunting-fishing license with a bowhunting stamp affixed license
21 which authorizes the holder to hunt big game during a special archery
22 season and the regular open season.
23 § 51. Subdivision 2 of section 11-0931 of the environmental conserva-
24 tion law is amended to read as follows:
25 2. No firearm except a pistol or revolver shall be carried or
26 possessed in or on a motor vehicle unless it is unloaded in both the
27 chamber and the magazine, except that a loaded firearm which may be
28 legally used for taking migratory game birds may be carried or possessed
243 12021-01-1
1 in a motorboat while being legally used in hunting migratory game birds,
2 and no person except a law enforcement officer in the performance of his
3 official duties shall, while in or on a motor vehicle, use a jacklight,
4 spotlight or other artificial light upon lands inhabited by deer if he
5 is in possession or is accompanied by a person who is in possession, at
6 the time of such use, of a longbow, crossbow or a firearm of any kind
7 except a pistol or revolver, unless such longbow is unstrung or such
8 firearm is taken down or securely fastened in a case or locked in the
9 trunk of the vehicle. For purposes of this subdivision, motor vehicle
10 shall mean every vehicle or other device operated by any power other
11 than muscle power, and which shall include but not be limited to automo-
12 biles, trucks, motorcycles, tractors, trailers and motorboats, snowmo-
13 biles and snowtravelers, whether operated on or off public highways.
14 Notwithstanding the provisions of this subdivision, the department may
15 issue a permit to any person who is non-ambulatory, except with the use
16 of a mechanized aid, to possess a loaded firearm in or on a motor vehi-
17 cle as defined in this section, subject to such restrictions as the
18 department may deem necessary in the interest of public safety, and for
19 a fee of five dollars. Nothing in this section permits the possession
20 of a pistol or a revolver contrary to the Penal Law.
21 § 52. Section 11-1003 of the environmental conservation law, as
22 amended by chapter 325 of the laws of 1989, is amended to read as
23 follows:
24 § 11-1003. Falconry license.
25 Any resident of this state may be issued a falconry license. The
26 department shall prescribe and furnish forms for application for such
27 license. The fee for the license shall be twenty dollars. Falconry
28 licenses shall expire on December 31 every second year and shall be
244 12021-01-1
1 renewable at the discretion of the department. A falconry license shall
2 authorize the licensee to obtain, buy, sell, barter, possess and train
3 raptors for falconry and to engage in falconry, provided that no game
4 shall be taken or killed except during an open season therefor, and
5 further provided that such licensee shall also possess a hunting,
6 combined hunting and fishing, combined small game and big game, combined
7 hunting, fishing and big game or combination free hunting-big game hunt-
8 ing-fishing license pursuant to this chapter which authorizes the hold-
9 er to hunt wildlife. Any non-resident, who legally possesses a raptor
10 where he or she resides and who may legally engage in falconry where he
11 or she resides, may engage in falconry in New York without a falconry
12 license provided he or she possesses a valid non-resident hunting or
13 three-day hunting license.
14 § 53. Subdivision 4 of section 11-1201 of the environmental conserva-
15 tion law, as added by chapter 726 of the laws of 1977, is amended to
16 read as follows:
17 4. "License to hunt", "stamp to hunt", or "permit to hunt" means any
18 license, permit, or other privilege granted within the meaning of
19 subdivisions one, two-a, two-b, three, five, or eight of pursuant to
20 section 11-0701 of this chapter which authorizes the holder to hunt
21 wildlife.
22 § 54. Subdivision 3 of section 71-0923 of the environmental conserva-
23 tion law, as amended by chapter 694 of the laws of 1980, is amended to
24 read as follows:
25 3. A violation of subdivision 2 of section 11-0705 of this chapter
26 shall be punishable by forfeiture of the hunting, three-day hunting,
27 combined hunting and fishing, combined small game and big game or
28 combined hunting, fishing and big game or combination free hunting-big
245 12021-01-1
1 game hunting-fishing license, or of the big game license, as the case
2 may be, and of the hunting license tag or big game license tag licenses
3 and tags issued pursuant to this chapter which authorize the holder to
4 hunt wildlife and by a fine of not more than twenty-five dollars.
5 § 55. Section 83 of the state finance law is amended by adding a new
6 subdivision (h) to read as follows:
7 (h) All moneys, revenues and interest thereon received as a result of
8 the application of subdivision seventeen of section 11-0305 of the envi-
9 ronmental conservation law authorizing the issuance and sale of volun-
10 tary habitat stamps, other than the amount retained by the issuing agent
11 or officer, shall be deposited in a special account within the conserva-
12 tion fund to be known as the habitat account. All of such moneys, reven-
13 ues and interest shall be available to the department of environmental
14 conservation, pursuant to appropriation, exclusively for fish and wild-
15 life habitat management and the improvement and development of public
16 access for hunting, fishing, trapping and other fish and wildlife-relat-
17 ed recreation and study.
18 § 56. This act shall take effect on October 1, 2001, provided that any
19 regulations necessary for the timely implementation of this act on its
20 effective date may be promulgated before such date and provided,
21 further, that regulations adopted to implement the provisions of section
22 thirty-one of this act, adopted in the year in which this act becomes a
23 law, shall be adopted pursuant to the emergency adoption procedures set
24 forth in subdivision 6 of section 202 of the state administrative proce-
25 dure act; provided that the amendments to paragraph c of subdivision 1
26 of section 11-0907 of the environmental conservation law made by section
27 thirty-nine of this act shall be subject to the expiration and reversion
28 of such paragraph pursuant to section 13 of chapter 600 of the laws of
246 12021-01-1
1 1993, as amended, when upon such date the provisions of section forty of
2 this act shall take effect; provided, further, that the amendments to
3 paragraph a of subdivision 3 of section 11-0907 of the environmental
4 conservation law made by section forty-two of this act shall be subject
5 to the expiration and reversion of such paragraph pursuant to section 13
6 of chapter 600 of the laws of 1993, as amended, when upon such date the
7 provisions of section forty-three of this act shall take effect.
8 PART F
9 Section 1. Subdivision 14 of section 13-0309 of the environmental
10 conservation law, as amended by section 1 of part C of chapter 61 of the
11 laws of 2000, is amended to read as follows:
12 14. The department , until January first, two thousand two shall be
13 entitled to collect fifteen cents per bushel of surf clams and ten cents
14 per bushel of ocean quahogs taken from all certified waters to be depos-
15 ited in the surf clam/ocean quahog account as provided in section eight-
16 y-three of the state finance law.
17 § 2. This act shall take effect immediately.
18 PART G
19 Section 1. The real property tax law is amended by adding a new
20 section 480-b to read as follows:
21 § 480-b. State reimbursement for forest tax exemptions. 1. A county,
22 town or school district containing eligible private forest lands shall
23 be eligible for state reimbursement as provided by this section. For
24 purposes of this section, "eligible private forest lands" means private
247 12021-01-1
1 forest tracts receiving an exemption pursuant to section four hundred
2 eighty or four hundred eighty-a of this title, excluding any tract which
3 is or had been a certified tract on which penalties are imposed pursuant
4 to section four hundred eighty or four hundred eighty-a of this title.
5 2. The county treasurer of any county containing eligible private
6 forest lands shall submit to the state board a list of any changes to
7 the assessed value, taxable status or acreage of all such lands made
8 subsequent to the filing of those assessment rolls upon which county
9 taxes are extended, and the county tax rate and town tax rate extended
10 against any parcel receiving one of those exemptions.
11 3. The business manager of any school district containing eligible
12 private forest lands shall submit to the state board a list of any
13 changes to the assessed value, taxable status or acreage of all such
14 lands made subsequent to the filing of those assessment rolls upon which
15 school taxes are extended, and the school tax rate extended against any
16 parcel receiving one of those exemptions.
17 4. The state board shall compute the amount of state assistance paya-
18 ble to or for the benefit of a county, town or school district on
19 account of eligible private forest lands.
20 5. (a) The amount of state assistance paid to a county, town or school
21 district pursuant to this section shall equal the taxes which would have
22 been levied for county, town or school district purposes upon the
23 assessed valuation partially exempt from taxation on the latest final
24 assessment roll of the eligible private forest lands, minus one percent
25 of the total real property tax levy for county, town or school district
26 purposes for the current year, provided that the amount payable to any
27 county, town or school district pursuant to this section shall not
248 12021-01-1
1 exceed the maximum payment prescribed by paragraph (b) of this subdivi-
2 sion.
3 (b) The maximum payment to a county, town or school district pursuant
4 to this section shall be determined as follows:
5 (i) Multiply the total acreage of the eligible private forest lands in
6 the county, town or school district on the latest final assessment roll
7 by the average forest land value per acre, as determined by the state
8 board based on sales of forest parcels of at least fifty acres through-
9 out the region;
10 (ii) Multiply the result by the full value tax rate for county, town
11 or school district purposes for the current year; and
12 (iii) Subtract from the product one percent of the total real property
13 tax levy for county, town or school district purposes for the current
14 year.
15 6. The state board shall certify to the state comptroller the amount
16 of state assistance payable pursuant to this section, and shall mail a
17 copy of such certification to the county treasurer of each county and
18 business manager of each school district containing eligible private
19 forest tracts. Such state assistance shall be paid on audit and warrant
20 of the comptroller out of monies appropriated by the legislature for
21 state assistance to counties, towns and school districts containing
22 eligible private forest tracts.
23 7. If it should appear to the state board that an error was made in
24 the calculation of state assistance pursuant to subdivision five of this
25 section and as a result of that error an incorrect amount of state
26 assistance was paid to a county, town or school district, the state
27 board shall determine the difference between the assistance paid and the
28 assistance that should have been paid and shall adjust the next state
249 12021-01-1
1 assistance certified for such county, town or school district by that
2 difference.
3 § 2. This act shall take effect immediately, provided that state
4 assistance payments made pursuant to section 480-b of the real property
5 tax law, as added by section one of this act, shall be limited to the
6 amounts appropriated by the legislature for this purpose, and shall be
7 submitted based upon the assessment rolls with final completion dates on
8 or after July 1, 2001.
9 PART H
10 Section 1. Section 21.07 of the parks, recreation and historic preser-
11 vation law, as amended by chapter 773 of the laws of 1992, is amended to
12 read as follows:
13 § 21.07 Fee for snowmobile trail development and maintenance. A fee
14 of ten twenty dollars is hereby imposed upon the resident, and twen-
15 ty thirty dollars upon the nonresident, owner of a snowmobile for the
16 snowmobile trail development and maintenance fund to be paid to the
17 commissioner of motor vehicles upon the registration thereof in addition
18 to the registration fee required by the vehicle and traffic law, the
19 payment of which fee hereby imposed shall be a condition precedent to
20 such individual resident, individual nonresident or dealer registration.
21 § 2. Subdivisions 2 and 3 of section 27.17 of the parks, recreation
22 and historic preservation law, as amended by chapter 88 of the laws of
23 1988, are amended to read as follows:
24 2. Notwithstanding any other provision of law to the contrary, the
25 commissioner shall establish a plan for the development and maintenance
26 of snowmobile trails and facilities in the various counties or where
250 12021-01-1
1 applicable, cities, towns or villages of the state as may be appropriate
2 and shall take whatever action he or she deems necessary to foster and
3 promote the safe utilization of such trails and facilities; for these
4 purposes, he or she may draw upon the moneys deposited in the snowmobile
5 trail development and maintenance fund for expenses, including personal
6 services, as approved by the comptroller and is hereby authorized to
7 assign two three employees of his or her office to carry out such
8 responsibilities and to pay their salaries, benefits and expenses out of
9 such fund.
10 3. Every county or, where applicable, any city, town or village within
11 such county, shall be eligible for a grant for the development and main-
12 tenance of a system of snowmobile trails and a program with relation
13 thereto within its boundaries. Such grants shall be made by the commis-
14 sioner and may constitute up to one hundred percent of the cost of such
15 program including expenditures incurred for signs and markers of snowmo-
16 bile trails. Any county or, where applicable, any city, town or village
17 within such county, applying for such grant shall submit to the commis-
18 sioner by September first of each year an estimate of such expenditures
19 for the current fiscal year, in such form and containing such informa-
20 tion as the commissioner may require. No city, town or village may
21 apply for such grant where the county within which it is contained has
22 submitted an application for the same fiscal year. For the purpose of
23 this section, "fiscal year" shall mean the period from April first
24 through March thirty-first. The commissioner shall review all such
25 applications and shall determine the amount of state aid to be allocated
26 to each county or, where applicable, any city, town or village within
27 such county in accordance with the provisions of subdivision five of
28 this section. Of the amount the commissioner determines each county or,
251 12021-01-1
1 where applicable, any city, town or village within such county is eligi-
2 ble to receive, seventy percent shall be made available for distribution
3 by November first and thirty percent for distribution upon demonstration
4 of completion, submitted by June first, of the program.
5 § 3. Subdivisions 4-a and 11 of section 2222 of the vehicle and traf-
6 fic law, subdivision 4-a as amended by chapter 337 of the laws of 1997
7 and subdivision 11 as amended by chapter 773 of the laws of 1992, are
8 amended to read as follows:
9 4-a. Additional fee. In addition to the other fees provided for in
10 paragraphs (a), (b) and (c) of subdivision four of this section the
11 commissioner shall, upon application in such cases for the registration
12 of a snowmobile or the renewal thereof, collect the annual ten twenty
13 dollar fee for residents and twenty thirty dollar fee for nonresidents
14 imposed by section 21.07 of the parks, recreation and historic preserva-
15 tion law. This fee shall also be collected from dealers at the time of
16 original registration and at the time of each biennial renewal.
17 11. Exemption. No registrations shall be required for the following
18 described snowmobiles:
19 (a) Snowmobiles owned and used by the United States.
20 (b) Snowmobiles covered by a valid registration or license of another
21 state, province or country, as provided in subdivision twelve of this
22 section.
23 (c) Snowmobiles operated on lands owned by the owner of such snowmo-
24 bile, or on lands to which such owner has a contractual right other than
25 as a member of a club or association provided (i) the snowmobile is not
26 operated elsewhere within the state, and (ii) no consideration, either
27 direct or indirect, is paid to the owner of the snowmobile with respect
28 to such operation.
252 12021-01-1
1 § 4. Subdivision 1 of section 2230 of the vehicle and traffic law, as
2 added by chapter 839 of the laws of 1973, is amended to read as follows:
3 1. The commissioner may suspend or revoke a registration issued pursu-
4 ant to the provisions of this article, upon satisfactory proof of a
5 violation of any provision of this article, or of the parks and ,
6 recreation and historic preservation law at the request of the commis-
7 sioner of parks and , recreation and historic preservation, or of any
8 rule, regulation, order, local law or ordinance adopted or promulgated
9 pursuant thereto. Such suspension or revocation shall be issued only
10 after a hearing unless such a hearing is waived by the registrant. Upon
11 said suspension or revocation, all rights and privileges accruing to
12 such registrant shall terminate.
13 § 5. This act shall take effect on the one hundred twentieth day after
14 it shall have become a law.
15 PART I
16 Section 1. Subdivision 3 of section 2251 of the vehicle and traffic
17 law, as added by chapter 484 of the laws of 1985, is amended to read as
18 follows:
19 3. Fees. The triennial fee for registration of a vessel shall be:
20 nine eighteen dollars, if less than sixteen feet in length; eighteen
21 thirty-six dollars, if sixteen feet or over but less than twenty-six
22 feet in length; thirty sixty dollars, if twenty-six feet or over.
23 § 2. This act shall take effect on the one hundred twentieth day after
24 it shall have become a law.
25 PART J
253 12021-01-1
1 Section 1. Subdivisions 3, 4, 5 and 6 of section 47 of chapter 2 of
2 the laws of 1998, amending the public health law, the social services
3 law and the insurance law, relating to expanding the child health insur-
4 ance plan, are amended to read as follows:
5 3. section six of this act shall take effect January 1, 1999;
6 provided, however, that subparagraph (iii) of paragraph (c) of subdivi-
7 sion 9 of section 2510 of the public health law, as added by this arti-
8 cle, shall expire and be deemed repealed on March 31, 2001 on July 1,
9 2003;
10 4. sections two, three, four, seven, eight, nine, fourteen, fifteen,
11 sixteen, eighteen, eighteen-a, twenty-three, twenty-four, twenty-five
12 and twenty-nine of this act shall take effect January 1, 1999 and shall
13 expire and be deemed repealed on March 31, 2001 on July 1, 2003;
14 5. section twelve of this act shall take effect January 1, 1999;
15 provided, however, paragraphs (g) and (h) of subdivision 2 of section
16 2511 of the public health law, as added by this section, shall expire
17 and be deemed repealed March 31, 2001 on July 1, 2003;
18 6. section twenty-four-a, twenty-six and twenty-six-a of this act
19 shall expire and be deemed repealed March 31, 2001 on July 1, 2003;
20 § 2. Subdivision 1 of section 211 of chapter 474 of the laws of 1996
21 amending the education law and other laws relating to rates for residen-
22 tial health care facilities is amended by adding a new paragraph (e) to
23 read as follows:
24 (e) Notwithstanding any inconsistent provision of law or regulation to
25 the contrary, effective for the state fiscal year beginning April 1,
26 2001, and annually thereafter, the department of health is authorized to
27 pay public general hospitals, other than those operated by the state of
28 New York or the state university of New York, as defined in subdivision
254 12021-01-1
1 10 of section 2801 of the public health law, located in a city with a
2 population of over one million, additional payments pursuant to para-
3 graph (c) of this subdivision for inpatient hospital services of up to
4 113 million dollars annually, as medical assistance pursuant to title 11
5 of article 5 of the social services law for patients eligible for feder-
6 al financial participation under title XIX of the federal social securi-
7 ty act, pursuant to federal laws and regulations governing dispropor-
8 tionate share payments to hospitals, based on the relative share of each
9 such non-state operated public general hospital of medical assistance
10 and uninsured patient losses after all other medical assistance, includ-
11 ing disproportionate share payments to such general hospitals.
12 § 3. Notwithstanding any inconsistent provision of law or regulation
13 to the contrary, and subject to the availability of federal financial
14 participation pursuant to title XIX of the federal social security act,
15 effective for state fiscal years beginning April 1, 2001, and April 1,
16 2002, the department of health is authorized to make a specialty hospi-
17 tal adjustment to public general hospitals, as defined in subdivision 10
18 of section 2801 of the public health law, other than those operated by
19 the state of New York or the state university of New York, receiving
20 reimbursement for all inpatient services under title XIX of the federal
21 social security act pursuant to paragraph (e) of subdivision 4 of
22 section 2807-c of the public health law, and located in a city with a
23 population of over 1 million, of up to two hundred forty-eight million
24 dollars annually as medical assistance pursuant to title 11 of article 5
25 of the social services law for patients eligible for federal financial
26 participation under title XIX of the federal social security act based
27 on each such hospital's proportionate share of the sum of all inpatient
28 discharges for all facilities eligible for an adjustment pursuant to
255 12021-01-1
1 this section during any annual period. Such proportionate share payment
2 may be added to rates of payment or made as aggregate payments to eligi-
3 ble public general hospitals.
4 § 3-a. Notwithstanding any inconsistent provision of law or regu-
5 lation to the contrary, the social services district in which an eligi-
6 ble public general hospital is physically located shall be responsible
7 for the payments for such public general hospital as determined in
8 accordance with section three of this act for all hospital services
9 provided by such public general hospital in accordance with section
10 365-a of the social services law, regardless whether another social
11 services district or the department of health may otherwise be responsi-
12 ble for furnishing medical assistance to the eligible persons receiving
13 such services.
14 § 3-b. Notwithstanding any inconsistent provision of law or regulation
15 to the contrary, reimbursement by the state for payments made, whether
16 by the department of health on behalf of a social services district
17 pursuant to section 367-b of the social services law or by a social
18 services district directly, for a payment determined in accordance with
19 section three of this act for general hospital inpatient hospital
20 services provided in accordance with paragraph (b) of subdivision 2 of
21 section 365-a of the social services law shall be limited to the amount
22 of federal funds properly received or to be received on account of such
23 expenditures.
24 § 3-c. Any amounts provided pursuant to section three of this act
25 shall be effective for purposes of determining payments for public
26 general hospitals contingent on receipt of all approvals required by
27 federal law or regulations for federal financial participation in
28 payments made pursuant to title XIX of the federal social security act.
256 12021-01-1
1 If federal approvals are not granted for payments based on such amounts
2 or components thereof, payments to public general hospitals shall be
3 determined without consideration of such amounts or such components.
4 Public general hospitals shall refund to the state, or the state may
5 recoup from prospective payments, any overpayment received including
6 those based on a retroactive reduction in the payments. Any reduction in
7 federal financial participation pursuant to title XIX of the federal
8 social security act related to federal upper payment limits shall be
9 deemed to apply first to amounts provided pursuant to section three of
10 this act.
11 § 4. 1. Notwithstanding the provisions of paragraph (c) of subdivision
12 1 of section 366 of the social services law, or any other provision of
13 law, and subject to federal approval and to the availability of federal
14 financial participation pursuant to title XIX of the federal social
15 security act, reimbursement shall be made for the federal funds properly
16 expended for the medical services enumerated in subdivision 2 of this
17 section that (a) are provided to (i) individuals who are residents of
18 public institutions operated by the state department of correctional
19 services, (ii) individuals who are involuntarily confined or residing in
20 any correctional facility owned or operated by the New York city depart-
21 ment of corrections, (iii) individuals who are involuntarily confined or
22 residing in any correctional facility owned or operated by a county or
23 other municipality within a social services district, or (iv) individ-
24 uals who are involuntarily confined or residing in a correctional facil-
25 ity operated under a contract with a county, a municipality other than a
26 county, or the state, (b) so long as the medical services are not
27 provided by or in (i) a facility operated by the state department of
28 correctional services, (ii) a facility operated by the New York city
257 12021-01-1
1 department of corrections, (iii) a facility located in or on the grounds
2 of a correctional facility owned or operated by a county or other muni-
3 cipality within a social services district, or (iv) a facility located
4 in a correctional facility operated under a contract with a county, a
5 municipality other than a county, or the state.
6 2. For the purposes of subdivision 1 of this section, medical services
7 eligible for reimbursement of federal financial participation pursuant
8 to title XIX of the social security act include only the following
9 services: (a) inpatient hospital services provided in a general hospital
10 licensed pursuant to article 28 of the public health law; (b) nursing
11 care and health related services provided while in a residential health
12 care facility licensed pursuant to article 28 of the public health law;
13 (c) inpatient hospital services provided to persons under twenty-one
14 years of age, while in a residential treatment facility for children and
15 youth licensed pursuant to article 31 of the mental hygiene law; (d)
16 inpatient hospital services provided to persons under twenty-one years
17 of age, while in an acute care psychiatric hospital established pursuant
18 to article 7 of the mental hygiene law; and (e) residential services
19 provided while in an intermediate care facility operated by the office
20 of mental retardation and developmental disabilities pursuant to article
21 13 of the mental hygiene law or licensed pursuant to article 16 of the
22 mental hygiene law.
23 § 5. 1. Notwithstanding any other provision of law, the department of
24 health shall review claims for expenditures made in accordance with
25 section four of this act by the state department of correctional
26 services for the services enumerated in subdivision two of section four
27 of this act provided to individuals who are residents of public insti-
28 tutions operated by the state department of correctional services or who
258 12021-01-1
1 are residents of a correctional facility operated under a contract with
2 the state. If approved by the department of health, payment for such
3 services which are furnished in accordance with title XIX of the federal
4 social security act shall be made by the department of health in the
5 amount of any federal financial participation properly expended for such
6 services. The amount of federal financial participation received on
7 account of expenditures for such services shall be credited by the comp-
8 troller to the medical assistance program, general fund/aid to locali-
9 ties, local assistance account - 001.
10 2. Claims for payment under this section shall be made in such form
11 and manner, at such times, and for such periods as the department of
12 health may require.
13 § 5-a. Notwithstanding any other provision of law, and to the extent
14 federal financial participation is available therefor, reimbursement for
15 payments made by the office of mental health for inpatient hospital
16 services provided in acute care psychiatric hospitals established pursu-
17 ant to article 7 of the mental hygiene law, or the office of mental
18 retardation and developmental disabilities for residential services
19 provided in intermediate care facilities licensed pursuant to article 16
20 of the mental hygiene law, to individuals who are residents of public
21 institutions operated as described in subdivision one of section four of
22 this act, shall be made only for the amount of federal funds properly
23 expended for such services.
24 § 5-b. Notwithstanding any other provision of law, and to the extent
25 federal financial participation is available therefor, reimbursement for
26 payments made for services enumerated in subdivision two of section four
27 of this act provided to (i) persons involuntarily confined or residing
28 in public institutions under the jurisdiction of the New York city
259 12021-01-1
1 department of corrections, (ii) persons involuntarily confined or resid-
2 ing in a correctional facility owned or operated by a county or other
3 municipality within a social services district, or (iii) persons invol-
4 untarily confined or residing in a correctional facility operated under
5 a contract with a county or a municipality other than a county, shall be
6 made only for the amount of federal funds properly expended for such
7 services.
8 § 6. Subparagraph 11 of paragraph (a) of subdivision 1 of section 366
9 of the social services law, as added by section 1 of part E of chapter
10 57 of the laws of 2000, is amended to read as follows:
11 (11) for purposes of receiving family planning services eligible for
12 reimbursement by the federal government at a rate of ninety percent, is
13 not otherwise eligible for medical assistance and whose income is two
14 hundred percent or less of the comparable federal income official pover-
15 ty line (as defined and annually revised by the United States department
16 of health and human services). The commissioner of health shall submit
17 whatever waiver applications as may be necessary to receive federal
18 financial participation for services provided under this subparagraph
19 and the provisions of this subparagraph shall be effective if and so
20 long as such federal financial participation shall be available; and
21 or
22 § 7. Paragraph (a) of subdivision 1 of section 366 of the social
23 services law is amended by adding two new subparagraphs 12 and 13 to
24 read as follows:
25 (12) is a disabled person at least sixteen years of age, but under the
26 age of sixty-five, who: would be eligible for benefits under the supple-
27 mental security income program but for earnings in excess of the allow-
28 able limit; has net available income that does not exceed two hundred
260 12021-01-1
1 fifty percent of the applicable federal income official poverty line, as
2 defined and updated by the United States department of health and human
3 services, for a one-person or two-person household, as defined by the
4 commissioner in regulation; has household resources, as defined in para-
5 graph (e) of subdivision two of section three hundred sixty-six-c of
6 this title, that do not exceed ten thousand dollars; and contributes to
7 the cost of medical assistance provided pursuant to this subparagraph in
8 accordance with subdivision twelve of section three hundred sixty-sev-
9 en-a of this title; for purposes of this subparagraph, disabled means
10 having a medically determinable impairment of sufficient severity and
11 duration to qualify for benefits under section 1902(a)(10)(A)(ii)(xv) of
12 the social security act; or
13 (13) is a person at least sixteen years of age, but under the age of
14 sixty-five, who: is employed; ceases to be in receipt of medical assist-
15 ance under subparagraph twelve of this paragraph because the person, by
16 reason of medical improvement, is determined at the time of a regularly
17 scheduled continuing disability review to no longer be eligible for
18 supplemental security income program benefits or disability insurance
19 benefits under the social security act; continues to have a severe
20 medically determinable impairment, to be determined in accordance with
21 applicable federal regulations; and contributes to the cost of medical
22 assistance provided pursuant to this subparagraph in accordance with
23 subdivision twelve of section three hundred sixty-seven-a of this title;
24 for purposes of this subparagraph, a person is considered to be employed
25 if the person is earning at least the applicable minimum wage under
26 section six of the federal fair labor standards act and working at least
27 forty hours per month; and
261 12021-01-1
1 § 8. Section 366 of the social services law is amended by adding a new
2 subdivision 11 to read as follows:
3 11. The commissioner of health shall, consistent with this title, make
4 any necessary amendments to the state plan for medical assistance
5 submitted pursuant to section three hundred sixty-three-a of this title,
6 in order to ensure federal financial participation in expenditures under
7 subparagraphs twelve and thirteen of paragraph (a) of subdivision one of
8 this section. Notwithstanding any other provision of law to the contra-
9 ry, medical assistance under subparagraphs twelve and thirteen of para-
10 graph (a) of subdivision one of this section shall be provided only to
11 the extent permitted under federal law, if, for so long as, and to the
12 extent that federal financial participation is available therefor.
13 § 9. Section 367-a of the social services law is amended by adding a
14 new subdivision 12 to read as follows:
15 12. Prior to receiving medical assistance under subparagraphs twelve
16 and thirteen of paragraph (a) of subdivision one of section three
17 hundred sixty-six of this title, a person whose net available income is
18 at least one hundred fifty percent of the applicable federal income
19 official poverty line, as defined and updated by the United States
20 department of health and human services, must pay a premium, in accord-
21 ance with a procedure to be established by the commissioner. The amount
22 of such premium shall be equal to the sum of three percent of the
23 person's net earned income and seven and one-half percent of the
24 person's net unearned income. No premium shall be required from a
25 person whose net available income is less than one hundred fifty percent
26 of the applicable federal income official poverty line, as defined and
27 updated by the United States department of health and human services.
262 12021-01-1
1 § 10. Subdivision 1 of section 368-a of the social services law is
2 amended by adding a new paragraph (v) to read as follows:
3 (v) One hundred per centum of the amount expended for the adminis-
4 tration of medical assistance furnished pursuant to subparagraphs twelve
5 and thirteen of paragraph (a) of subdivision one of section three
6 hundred sixty-six of this title, after first deducting any federal funds
7 properly received or to be received on account of such expenditures.
8 § 11. Subdivision 4 of section 366 of the social services law is
9 amended by adding a new paragraph (v) to read as follows:
10 (v)(1) Persons who are not otherwise eligible for medical assistance
11 are eligible for medical assistance coverage during the treatment of
12 breast or cervical cancer, subject to the provisions of this paragraph.
13 (2)(i) Medical assistance is available under this paragraph to persons
14 who are under sixty-five years of age, have been screened for breast
15 and/or cervical cancer under the Centers for Disease Control and
16 Prevention breast and cervical cancer early detection program and need
17 treatment for breast or cervical cancer, and are not otherwise covered
18 under creditable coverage as defined in the federal public health
19 service act; provided however that medical assistance shall be furnished
20 pursuant to this clause only to the extent permitted under federal law,
21 if, for so long as, and to the extent that federal financial partic-
22 ipation is available therefor.
23 (ii) Medical assistance is available under this paragraph to persons
24 who meet the requirements of clause (i) but for their age, who have been
25 screened for breast and/or cervical cancer under the program described
26 in title I-A of article twenty-four of the public health law and need
27 treatment for breast or cervical cancer, and are not otherwise covered
28 under creditable coverage as defined in the federal public health
263 12021-01-1
1 service act; provided however that medical assistance shall be furnished
2 pursuant to this clause only if and for so long as federal financial
3 participation pursuant to the provisions of clause (i) of this subpara-
4 graph is available thereunder.
5 (3) Medical assistance provided to a person under this paragraph shall
6 be limited to the period in which such person requires treatment for
7 breast or cervical cancer.
8 (4) The commissioner of health shall promulgate such regulations as
9 may be necessary to carry out the provisions of this paragraph. Such
10 regulations shall include, but not be limited to: eligibility require-
11 ments; a description of the scope and duration of the medical services
12 which are covered; and a process for providing presumptive eligibility
13 when a qualified entity, as defined by the commissioner, determines on
14 the basis of preliminary information that a person meets the require-
15 ments for eligibility under this paragraph.
16 (5) The commissioner of health shall, consistent with this title, make
17 any necessary amendments to the state plan for medical assistance
18 submitted pursuant to section three hundred sixty-three-a of this title,
19 in order to ensure federal financial participation in expenditures under
20 this paragraph. Notwithstanding any provision of law to the contrary,
21 the provisions of clause (i) of subparagraph two of this paragraph shall
22 be effective only if and for so long as federal financial participation
23 is available in the costs of medical assistance furnished thereunder.
24 § 12. Subdivision 1 of section 368-a of the social services law is
25 amended by adding a new paragraph (w) to read as follows:
26 (w) One hundred per centum of the amount expended for the adminis-
27 tration of medical assistance furnished pursuant to paragraph (v) of
28 subdivision four of section three hundred sixty-six of this title, after
264 12021-01-1
1 first deducting any federal funds properly received or to be received on
2 account of such expenditures.
3 § 13. Subdivision 13 of section 367-b of the social services law, as
4 added by section 1 of part C of chapter 57 of the laws of 2000, is
5 amended to read as follows:
6 13. Notwithstanding any inconsistent provision of law, in lieu of
7 payments authorized by this chapter and/or any of the general fund or
8 special revenue other appropriations made to the office of temporary and
9 disability assistance and the office of children and family services,
10 from funds otherwise due to local social services districts or in lieu
11 of payments of federal funds otherwise due to local social services
12 districts for programs provided under the federal social security act or
13 the federal food stamp act or the low income home energy assistance
14 program, funds in amounts certified by the commissioner of the office of
15 temporary and disability assistance or the commissioner of the office of
16 children and family services or the commissioner of health as due from
17 local social services districts as their share of payments made pursuant
18 to this section, may be set-aside by the state comptroller in an inter-
19 est-bearing account with such interest accruing to the credit of the
20 locality, pursuant to an estimate provided by the commissioner of health
21 of a local social services district's share of medical assistance
22 payments, except that in the case of the city of New York, such set-a-
23 side shall be subject first to the requirements of a section of the
24 chapter of the laws of two thousand one which enacted this provision,
25 and then subject to the requirements of paragraph (i) of subdivision (b)
26 of section two hundred twenty-two-a of chapter four hundred seventy-four
27 of the laws of nineteen hundred ninety-six prior to the application of
28 this subdivision. Should funds otherwise payable to a local social
265 12021-01-1
1 services district from appropriations made to the office of temporary
2 and disability assistance, the office of children and family services,
3 and the department of health be insufficient to fully fund the amounts
4 identified by the commissioner of health as necessary to liquidate the
5 local share of payments to be made pursuant to this section on behalf of
6 the local social services district, the commissioner of health may iden-
7 tify other state or federal payments payable to that local social
8 services district or any other county agency including, but not limited
9 to the county department of health, from appropriations made to the
10 state department of health, and may authorize the state comptroller,
11 upon no less than five days written notice to such local social services
12 district or such other county agency, to set-aside such payments in the
13 interest-bearing account with such interest accruing to the credit of
14 the locality. Upon such determination by the commissioner of health that
15 insufficient funds are payable to a local social services district and
16 any other county agency receiving payments from the office of temporary
17 and disability assistance, the office of children and family services,
18 and the state department of health from appropriations made to these
19 agencies, the state comptroller shall, upon no less than five days writ-
20 ten notice to such local social services district or such other county
21 agency, withhold payments from any of the general fund - local assist-
22 ance accounts or payments made from any of the special revenue - federal
23 local assistance accounts, provided, however, that such federal payments
24 shall be withheld only after such federal funds are properly credited to
25 the county through vouchers, claims or other warrants properly received,
26 approved, and paid by the state comptroller, and set-aside such
27 disbursements in the interest-bearing account with such interest accru-
28 ing to the credit of the locality until such time that the amount with-
266 12021-01-1
1 held from each county is determined by the commissioner of health to be
2 sufficient to fully liquidate the local share of payments, as estimated
3 by the commissioner of health, to be made pursuant to this section on
4 behalf of that local social services district.
5 § 14. Paragraph (i) of subdivision (b) of section 222-a of chapter 474
6 of the laws of 1996 amending the education law and other laws relating
7 to rates for residential care facilities, as added by chapter 433 of the
8 laws of 1997, is amended to read as follows:
9 (i) in the case of a county or in the case of the city of New York,
10 subject to the requirements of a section of the chapter of the laws of
11 two thousand one which enacted this provision, in which a public general
12 hospital, other than a public general hospital operated by the state of
13 New York or state university of New York, is participating in a payment
14 pursuant to sections two hundred eleven and two hundred twelve of this
15 act, state reimbursement pursuant to (A) subdivision 1 of section 368-a
16 of the social services law, except for reimbursement pursuant to para-
17 graph (a) of such subdivision, and (B) subdivision 1 of section 153 of
18 the social services law shall be reduced by a total amount equal to
19 forty percent of the projected amount reconciled to the actual amount of
20 such payments for such public general hospital. The departments of
21 health and social services shall cooperate in effecting the reduction
22 authorized by this section; and
23 § 15. Notwithstanding any inconsistent provision of law or regulation
24 to the contrary, for each annual state fiscal year beginning April 1,
25 2001, through March 31, 2003, payments pursuant to paragraph (h) of
26 subdivision 1 of section 368-a of the social services law due to the
27 city of New York, shall be reduced by the sum of 85 million dollars.
267 12021-01-1
1 § 16. Subparagraph (iv) of paragraph (f) of subdivision 1 of section
2 2807-1 of the public health law, as amended by section 6 of part A of
3 chapter 57 of the laws of 2000, is amended to read as follows:
4 (iv) from the pool for the period January first, two thousand through
5 December thirty-first, two thousand two , eighty-two million dollars
6 annually, and for the period January first, two thousand three through
7 June thirtieth, two thousand three, forty-one million dollars shall be
8 deposited by the commissioner, and the state comptroller is hereby
9 authorized and directed to receive for deposit to the credit of the
10 state special revenue fund - other, HCRA transfer fund, medical assist-
11 ance account.
12 § 17. Subdivision 3 of section 2807-1 of the public health law, as
13 amended by chapter 419 of the laws of 2000, is amended to read as
14 follows:
15 3. (a) Notwithstanding any inconsistent provision of law, rule or
16 regulation, any sixty-nine million dollars of the funds accumulated in
17 the health care initiatives pools pursuant to paragraph (b) of subdivi-
18 sion nine of section twenty-eight hundred seven-j of this article, as a
19 result of surcharges, assessments or other obligations during the peri-
20 ods January first, nineteen hundred ninety-seven through December thir-
21 ty-first, nineteen hundred ninety-nine, which are unused or uncommitted
22 for distributions pursuant to this section shall be reserved and accumu-
23 lated from year to year by the commissioner and, within amounts appro-
24 priated, transferred and deposited into the special revenue funds -
25 other, miscellaneous special revenue fund - 339, child health insurance
26 account, for purposes of distributions to implement the child health
27 insurance program established pursuant to sections twenty-five hundred
28 ten and twenty-five hundred eleven of this chapter for periods on and
268 12021-01-1
1 after January first, two thousand one; provided, however, funds reserved
2 and accumulated for priority distributions pursuant to subparagraph
3 (iii) of paragraph (c) of subdivision one of this section shall not be
4 transferred and deposited into such account pursuant to this subdivi-
5 sion; and provided further, however, the primary health care services
6 grant program pursuant to section twenty-eight hundred seven-bb of this
7 article, as in effect prior to January first, two thousand, shall be
8 funded up to allocated amounts set forth in paragraph (g) of subdivision
9 one of this section less amounts set aside and distributed by the
10 commissioner in accordance with section thirty-two-c of part F of chap-
11 ter four hundred twelve of the laws of nineteen hundred ninety-nine, and
12 shall not be transferred and deposited into such account pursuant to
13 this subdivision.
14 (b) Any unused or uncommitted funds remaining after the sixty-nine
15 million dollar transfer to the child health insurance account in accord-
16 ance with paragraph (a) of this subdivision shall be available in the
17 health care initiatives pool and added to funds accumulated pursuant to
18 paragraph (b) of subdivision nine of section twenty-eight hundred
19 seven-j of this article for distribution in accordance with this section
20 for periods on and after January first, two thousand one.
21 § 18. Subparagraph (i) of paragraph (o) of subdivision 1 of section
22 2807-v of the public health law, as added by chapter 1 of the laws of
23 1999, is amended to read as follows:
24 (i) up to ninety sixty million dollars for the period January first,
25 two thousand through December thirty-first, two thousand;
26 § 19. Paragraph (r) of subdivision 1 of section 2807-v of the public
27 health law, as added by chapter 1 of the laws of 1999, the opening para-
269 12021-01-1
1 graph as amended by chapter 419 of the laws of 2000, is amended to read
2 as follows:
3 (r) Funds shall be deposited by the commissioner within amounts appro-
4 priated, and the state comptroller is hereby authorized and directed to
5 receive for deposit to the credit of the state special revenue funds -
6 other, HCRA transfer fund, medical assistance account, for purposes of
7 providing distributions for supplementary medical insurance for Medicare
8 part B premiums, physicians services, outpatient services, medical
9 equipment, supplies and other health services, from the tobacco control
10 and insurance initiatives pool established for the following periods in
11 the following amounts:
12 (i) forty-three eighteen million dollars for the period January
13 first, two thousand through December thirty-first, two thousand;
14 (ii) sixty-one thirty-six million dollars for the period January
15 first, two thousand one through December thirty-first, two thousand one;
16 (iii) sixty-five thirty-one million dollars for the period January
17 first, two thousand two through December thirty-first, two thousand two;
18 and
19 (iv) thirty-four seventeen million dollars for the period January
20 first, two thousand three through June thirtieth, two thousand three.
21 § 20. Subdivision 4 of section 2807-v of the public health law, as
22 added by chapter 419 of the laws of 2000, is amended to read as follows:
23 4. In the event residual funds are available in the tobacco control
24 and insurance initiatives pool established for the period periods
25 January first, two thousand through December thirty-first, two thou-
26 sand June thirtieth, two thousand three, after allocations have been
27 made pursuant to this section for the period periods January first,
28 two thousand through December thirty-first, two thousand, up to forty-
270 12021-01-1
1 five million dollars June thirtieth, two thousand three, any amount of
2 such funds may be transferred to the health care initiatives pool estab-
3 lished pursuant to section twenty-eight hundred seven-l of this article
4 for the period periods January first, two thousand through December
5 thirty-first, two thousand June thirtieth, two thousand three, to be
6 allocated and distributed proportionally among affected programs by the
7 commissioner to cover any shortfall in programs and purposes set forth
8 in subdivision one of section twenty-eight hundred seven-l of this arti-
9 cle.
10 § 21. Notwithstanding any inconsistent provision of law, rule or regu-
11 lation, section sixteen of this act and the amendments to subparagraphs
12 (ii), (iii) and (iv) of paragraph (r) of subdivision 1 of section 2807-v
13 of the public health law, as set forth in section nineteen of this act,
14 shall not take effect unless and until sections twenty-two through twen-
15 ty-four of this act are enacted by the legislature.
16 § 22. Notwithstanding any inconsistent provision of law or regulation
17 to the contrary, effective for periods beginning April 1, 2001 through
18 June 30, 2003, the capital cost component of every proprietary residen-
19 tial health care facility rate of payment determined pursuant to article
20 28 of the public health law shall not include a payment factor to pay an
21 annual rate of return on owner's equity or a payment factor to pay an
22 annual rate of return on average equity capital.
23 § 23. 1. Notwithstanding any inconsistent provision of law or regu-
24 lation, the trend factors used to project reimbursable operating costs
25 to the rate period for purposes of determining rates of payment pursuant
26 to article 28 of the public health law for residential health care
27 facilities for reimbursement of inpatient services provided to patients
28 eligible for payments made by state governmental agencies on or after
271 12021-01-1
1 April 1, 2001 through June 30, 2003 shall reflect no trend factor
2 projections or adjustments for the period April 1, 2001 through March
3 31, 2002.
4 2. The commissioner of health shall adjust such rates of payment to
5 reflect the exclusion pursuant to this section of such specified trend
6 factor projections or adjustments.
7 § 24. Notwithstanding any inconsistent provision of law or regulation
8 to the contrary, residential health care facility rates of payment
9 determined pursuant to article 28 of the public health law for services
10 provided on and after April 1, 2001 through June 30, 2003, except for
11 the establishment of any statewide or any peer group base, mean, or
12 ceiling prices per day, shall be calculated utilizing only the number of
13 residents properly assessed and reported in each patient classification
14 group and eligible for medical assistance pursuant to title 11 of arti-
15 cle 5 of the social services law.
16 § 25. Paragraph (b) of subdivision 6 of section 367-a of the social
17 services law, as added by chapter 41 of the laws of 1992 and subpara-
18 graph (iii) of paragraph (b) as amended by chapter 843 of the laws of
19 1992, is amended to read as follows:
20 (b) Co-payments shall apply to all eligible persons for the services
21 defined in paragraph (d) of this subdivision with the exception of:
22 (i) individuals under twenty-one years of age;
23 (ii) pregnant women;
24 (iii) individuals who are inpatients in a medical facility who have
25 been required to spend all of their income for medical care, except
26 their personal needs allowance or residents of community based residen-
27 tial facilities licensed by the office of mental health or the office of
272 12021-01-1
1 mental retardation and developmental disabilities who have been required
2 to spend all of their income, except their personal needs allowance; and
3 (iv) individuals enrolled in health maintenance organizations or
4 other entities which provide comprehensive health services, or other
5 managed care programs for services covered by such programs; and
6 (v) any other individuals required to be excluded by federal law or
7 regulations.
8 § 26. Notwithstanding any inconsistent provision of law or regulation
9 to the contrary, no government agency shall pay or make reimbursement
10 for any costs associated with the real property or capital costs of any
11 residential health care facility which has not received final approval
12 to commence construction, as of January 1, 2001, with respect to an
13 application to add any new residential health care facility beds under
14 article 28 of the public health law.
15 § 27. Section 3 of chapter 483 of the laws of 1978 amending the public
16 health law relating to rate of payment for each residential health care
17 facility to real property costs, as amended by chapter 520 of the laws
18 of 2000, is amended to read as follows:
19 § 3. This act shall take effect immediately provided, however, that
20 the provisions of subdivision 2-a of section 2808 of the public health
21 law, as added by section one of this act, shall remain in full force and
22 effect until December 31, 2001 .
23 § 28. Section 18 of chapter 904 of the laws of 1984, amending the
24 public health law and the social services law relating to encouraging
25 comprehensive health services, as amended by section 9 of part B of
26 chapter 57 of the laws of 2000, is amended to read as follows:
27 § 18. This act shall take effect immediately, except that sections
28 six, nine, ten and eleven of this act shall take effect on the sixtieth
273 12021-01-1
1 day after it shall have become a law, sections three, four and nine of
2 this act shall expire and be of no further force or effect on or after
3 July 1, 2001 2002, section two of this act shall take effect on April
4 1, 1985 or seventy-five days following the submission of the report
5 required by section one of this act, whichever is later, and shall
6 expire and be of no further force or effect after July 1, 2001 2002
7 and sections eleven and thirteen of this act shall expire and be of no
8 further force or effect on or after March 31, 1988.
9 § 29. Notwithstanding any inconsistent provision of law, rule or regu-
10 lation, the effectiveness of subdivisions 4, 7, 7-a and 7-b of section
11 2807 of the public health law and section 18 of chapter 2 of the laws of
12 1998, as they relate to time frames for notice, approval or certif-
13 ication of rates of payment, and to the requirement of prior notice of
14 rates of payment, are hereby suspended and shall for purposes of imple-
15 menting the provisions of the act, be deemed to have been without any
16 force and effect from and after November 1, 2000 for such rates effec-
17 tive for the period January 1, 2001 through December 31, 2001.
18 § 30. Severability. If any clause, sentence, paragraph, section or
19 part of this act shall be adjudged by any court of competent jurisdic-
20 tion to be invalid, such judgment shall not affect, impair or invalidate
21 the remainder thereof, but shall be confined in its operation to the
22 clause, sentence, paragraph, section or part thereof directly involved
23 in the controversy in which such judgment shall have been rendered.
24 § 31. This act shall take effect immediately and shall be deemed to
25 have been in full force and effect on and after April 1, 2001, provided
26 that section one of this act shall take effect March 31, 2001 provided
27 however that sections four and five of this act shall be deemed to have
28 been in full force and effect on and after January 1, 1997, as if their
274 12021-01-1
1 provisions were included in the appropriate amendments in chapter 639 of
2 the laws of 1996, sections six and seven of this act shall take effect
3 January 1, 2002, or as soon thereafter as practicable, and section elev-
4 en of this act shall take effect October 1, 2001. The commissioner of
5 health may take any steps, including the promulgation of regulations on
6 an emergency basis, which he or she determines to be necessary to imple-
7 ment any provisions of this act; provided, however, that nothing
8 contained herein shall be deemed to affect the application, qualifica-
9 tion, expiration, reversion or repeal of any provision of law amended by
10 any section of this act and the provisions of this act shall be applied
11 or qualified or shall expire or revert or be deemed repealed in the same
12 manner, to the same extent and on the same date as the case may be as
13 otherwise provided by law. The provisions of this act shall become
14 effective notwithstanding the failure of the commissioner of health to
15 promulgate regulations implementing this act.
16 PART K
17 Section 1. Paragraph (a) of subdivision 3 of section 547-b of the
18 executive law, as amended by chapter 692 of the laws of 1996, is amended
19 to read as follows:
20 (a) Eligibility for assistance under this article shall not be granted
21 to any person who at the time an application is made is receiving
22 medical assistance under section three hundred sixty-six of the social
23 services law , or to any person receiving equivalent or better coverage
24 from any other public or private third party payment source or insurance
25 plan than those benefits provided for under this article .
275 12021-01-1
1 § 2. Subdivision 1 of section 547-j of the executive law, as added by
2 chapter 913 of the laws of 1986, is amended to read as follows:
3 1. The amount of reimbursement which shall be paid by the state to a
4 participating provider pharmacy for any covered drug filled or refilled
5 for any eligible program participant shall be equal to the lower of
6 allowed amount defined as follows, minus the point of sale co-payment as
7 required by sections five hundred forty-seven-g and five hundred forty-
8 seven-h of this article:
9 (a) The usual and customary charge of the pharmacy for such drugs
10 minus the point of sale co-payment as required by sections five hundred
11 forty-seven-g and five hundred forty-seven-h of this article; or
12 (b) The pharmacy's charge to the general public at the time of
13 purchase, taking into consideration any quantity and promotional
14 discounts; minus the point of sale co-payment as required by sections
15 five hundred forty-seven-g and five hundred forty-seven-h of this arti-
16 cle; or
17 (c) The average wholesale price based on the quantities participating
18 pharmacies buy most frequently, provided however, that such average
19 wholesale prices shall be discounted by five percent for any participat-
20 ing provider pharmacy or group of provider pharmacies with common owner-
21 ship whose total prescription volume for the preceding calendar year was
22 at least one hundred thousand prescriptions dispensed; and a dispensing
23 fee of two dollars and seventy-five cents, except that it shall be three
24 dollars for participating provider pharmacies which provide twenty-four
25 hour emergency prescription service, emergency delivery service at no
26 cost to the consumer, maintain a patient drug profile card on each
27 eligible program participant, and provide direct patient consultation
28 with each prescription; minus the point of sale co-payment as required
276 12021-01-1
1 by sections five hundred forty-seven-g and five hundred forty-seven-h of
2 this article.
3 Multiple source covered drugs. Except for brand name drugs that are
4 required by the prescriber to be dispensed as written, the allowed
5 amount for a multiple source covered drug shall equal the sum of the
6 upper limit set by the federal health care financing administration for
7 such multiple source drug, plus a dispensing fee as defined in paragraph
8 (c) of this subdivision. If an upper limit has not been established for
9 such drug, then the allowed amount for "other covered drugs" defined in
10 paragraph (b) of this subdivision applies.
11 (b) Other covered drugs. The allowed amount for brand name drugs
12 required by the prescriber to be dispensed as written, and for covered
13 drugs other than multiple source drugs, shall be determined by applying
14 the lower of:
15 (i) Average wholesale price discounted by ten percent, plus a dispens-
16 ing fee as defined in paragraph (c) of this subdivision, or
17 (ii) The pharmacy's usual and customary charge to the general public,
18 taking into consideration any quantity and promotional discounts to the
19 general public at the time of purchase.
20 (c) As required by paragraphs (a) and (b) of this subdivision, a
21 dispensing fee of four dollars and fifty cents will apply to generic
22 drugs and a dispensing fee of three dollars and fifty cents will apply
23 to brand name drugs.
24 § 3. Paragraphs (a) and (b) of subdivision 3 of section 547-j of the
25 executive law, paragraph (a) as amended by chapter 474 of the laws of
26 1996 and paragraph (b) as amended by section 8 of part J of chapter 57
27 of the laws of 2000, are amended to read as follows:
277 12021-01-1
1 (a) Notwithstanding any inconsistent provision of law, if a manufac-
2 turer (as defined under section 1927 of the federal social security act)
3 has entered into a rebate agreement with the department of social
4 services or with the federal secretary of health and human services on
5 behalf of the department of social services under section 1927 of the
6 federal social security act, the program for elderly pharmaceutical
7 insurance coverage shall reimburse for covered drugs which are dispensed
8 under the program by a provider pharmacy only pursuant to the terms of
9 the a rebate agreement between the program and such the manufacturer
10 (as defined under section 1927 of the federal social security act) of
11 such covered drugs; provided, however, that:
12 (i) any agreement between the program and a manufacturer entered into
13 before August first, nineteen hundred ninety-one, shall be deemed to
14 have been entered into on April first, nineteen hundred ninety-one; and
15 provided further, that if a manufacturer has not entered into an agree-
16 ment with the department before August first, nineteen hundred ninety-
17 one, such agreement shall not be effective until April first, nineteen
18 hundred ninety-two, unless such agreement provides that rebates will be
19 retroactively calculated as if the agreement had been in effect on April
20 first, nineteen hundred ninety-one; and
21 (ii) the program may reimburse for any covered drugs pursuant to
22 subdivisions one and two of this section, which are rated 1-A by the
23 federal food and drug administration and for which a rebate agreement
24 does not exist and which are determined by the elderly pharmaceutical
25 insurance coverage panel to be essential to the health of persons
26 participating in the program; and either likely to provide effective
27 therapy or diagnosis for a disease not adequately treated or diagnosed
28 by any other covered drug or to provide substantially improved treatment
278 12021-01-1
1 of a disease through improved effectiveness or safety; and which are
2 recommended for reimbursement by the panel and approved by the commis-
3 sioner of health.
4 (b) The rebate agreement between such manufacturer and the program for
5 elderly pharmaceutical insurance coverage shall utilize for covered
6 single source drugs and innovator multiple source drugs the identi-
7 cal formula used to determine the basic rebate for federal financial
8 participation for single source drugs and innovator multiple source
9 drugs, pursuant to paragraph one of subdivision (c) of section 1927 of
10 the federal social security act, to determine the amount of the basic
11 rebate pursuant to this subdivision. The rebate agreement between such
12 manufacturer and the program for elderly pharmaceutical insurance cover-
13 age shall utilize for non-innovator multiple source drugs, the identical
14 formula used to determine the basic rebate for federal financial partic-
15 ipation for non-innovator multiple source drugs, pursuant to paragraph
16 three of subdivision (c) of section 1927 of the federal social security
17 act, to determine the amount of the basic rebate pursuant to this para-
18 graph. For the rebate quarters beginning on or after October first, two
19 thousand, the basic rebate pursuant to this subdivision will be
20 increased by an additional rebate for all covered drugs. The rebate
21 agreement between such manufacturer and the program for elderly pharma-
22 ceutical insurance coverage shall utilize the following formula for all
23 covered drugs to determine the amount of additional rebate due the
24 program pursuant to this paragraph:
25 (i) For each quarter for which a rebate is to be paid, the average
26 manufacturer price for each dosage form and strength of a covered drug
27 shall be compared to the average manufacturer price for the same drug
279 12021-01-1
1 for the base quarter defined pursuant to subparagraph (v) of this para-
2 graph and a percentage increase shall be calculated.
3 (ii) For each quarter for which a rebate is to be paid, the consumer
4 price index for all urban consumers for the month before the rebate
5 quarter shall be compared to the consumer price index for all urban
6 consumers for the base CPI month defined pursuant to subparagraph (v) of
7 this paragraph and a percentage increase shall be calculated.
8 (iii) If the calculation under subparagraph (i) of this paragraph is
9 greater than the calculation under subparagraph (ii) of this paragraph,
10 the additional rebate amount per unit for each quarter shall be equal to
11 the product of the difference between the calculations under such
12 subparagraphs (i) and (ii), multiplied by the average manufacturer price
13 reported by the manufacturer for the base quarter defined pursuant to
14 subparagraph (v) of this paragraph.
15 (iv) For new covered drugs approved by the food and drug adminis-
16 tration after the first day of the base quarter defined pursuant to
17 subparagraph (v) of this paragraph, the additional rebate shall be
18 applied by substituting "the calendar quarter after the day on which the
19 drug was first marketed" for "the base quarter defined pursuant to
20 subparagraph (v) of this paragraph" and "the month prior to the first
21 month of the first full calendar quarter after the day on which the drug
22 was marketed" for "the base CPI month defined pursuant to subparagraph
23 (v) of this paragraph" in subparagraphs (i), (ii) and (iii) of this
24 paragraph.
25 (v) The initial base quarter shall be the calendar quarter beginning
26 October first, nineteen hundred ninety-eight. This base quarter shall be
27 updated by twenty-four months biennially. The initial base CPI month
280 12021-01-1
1 shall be September, nineteen hundred ninety-eight. This base CPI month
2 shall be updated by twenty-four months biennially.
3 § 4. Section 547-j of the executive law is amended by adding a new
4 subdivision 4 to read as follows:
5 4. Notwithstanding any other provision of law, entities which offer
6 insurance coverage for provision of and/or reimbursement for pharmaceu-
7 tical expenses, including but not limited, to entities
8 licensed/certified pursuant to article thirty-two, forty-two, forty-
9 three or forty-four of the insurance law (employees welfare funds) or
10 article forty-four of the public health law, shall participate in a
11 benefit recovery program with the elderly pharmaceutical insurance
12 coverage (EPIC) program which includes, but is not limited to, a semi-
13 annual match of EPIC's file of enrollees against the entity's file of
14 insured to identify individuals enrolled in both plans. Such entity
15 shall provide the extent and status of the pharmaceutical benefits under
16 the entity's plan for those identified individuals and shall reimburse
17 EPIC for pharmaceutical expenses paid by EPIC that are covered under
18 contract between the entity and its insured. Reimbursement will be made
19 to EPIC within sixty days of receipt from EPIC of the standard data
20 necessary for the entity to adjudicate the claim, and shall detail any
21 adjustments made thereto by the entity.
22 § 5. This act shall take effect immediately; provided, however, that
23 section one of this act shall take effect 120 days after it shall have
24 become a law and section four of this act shall be deemed to have been
25 in full force and effect on and after January 1, 1999.
26 PART L
281 12021-01-1
1 Section 1. Section 2803 of the public health law is amended by adding
2 a new subdivision 10 to read as follows:
3 10. (a) There shall be established within the miscellaneous special
4 revenue fund a quality of care improvement account. All penalties or
5 fines received by the department pursuant to section twelve of this
6 chapter and funds collected by the department of health and human
7 services as a result of the imposition of fines for violations of any of
8 the requirements for participation in the Medicaid program which occur
9 in a residential health care facility and penalties or fines received by
10 the department pursuant to section twenty-eight hundred three-d of this
11 article shall be deposited in the quality of care improvement account.
12 (b) Moneys available in the quality of care improvement account shall
13 be applied to the protection of the health or property of residents of
14 residential health care facilities that are found to be deficient,
15 including but not limited to, payment for the cost of relocation of
16 residents to other facilities and the maintenance of operation of a
17 facility pending correction of deficiencies or closure.
18 § 2. This act shall take effect immediately.
19 PART M
20 Section 1. Subdivision 51 of section 564 of chapter 170 of the laws of
21 1994 amending the executive law relating to creating a naturally occur-
22 ring retirement community supportive service program and providing for
23 the repeal of such provisions upon expiration thereof, as amended by
24 chapter 191 of the laws of 1999, is amended to read as follows:
282 12021-01-1
1 51. The provisions of sections four hundred ten and four hundred elev-
2 en of this act shall expire and be deemed repealed December 31, 2001
3 2003.
4 § 2. This act shall take effect immediately.
5 PART N
6 Section 1. Section 1.03 of the mental hygiene law is amended by adding
7 two new subdivisions 52 and 53 to read as follows:
8 52. "Persons with serious mental illness" means individuals who meet
9 criteria established by the commissioner of mental health, which shall
10 include persons who are in psychiatric crisis, or persons who have a
11 designated diagnosis of mental illness under the most recent edition of
12 the Diagnostic and Statistical Manual of Mental Disorders and whose
13 severity and duration of mental illness results in substantial func-
14 tional disability. Persons with serious mental illness shall include
15 children and adolescents with serious emotional disturbances.
16 53. "Children and adolescents with serious emotional disturbances"
17 means individuals under eighteen years of age who meet criteria estab-
18 lished by the commissioner of mental health, which shall include chil-
19 dren and adolescents who are in psychiatric crisis, or children and
20 adolescents who have a designated diagnosis of mental illness under the
21 most recent edition of the Diagnostic and Statistical Manual of Mental
22 Disorders and whose severity and duration of mental illness results in
23 substantial functional disability.
24 § 2. Subdivision (b) of section 7.17 of the mental hygiene law, as
25 amended by chapter 333 of the laws of 1998, is amended to read as
26 follows:
283 12021-01-1
1 (b) There shall be in the office the hospitals named below for the
2 care, treatment and rehabilitation of the mentally disabled and for
3 research and teaching in the science and skills required for the care,
4 treatment and rehabilitation of such mentally disabled.
5 Binghamton Psychiatric Center
6 Bronx Psychiatric Center
7 Buffalo Psychiatric Center
8 Capital District Psychiatric Center
9 Central New York Psychiatric Center
10 Creedmoor Psychiatric Center
11 Elmira Psychiatric Center
12 Hudson River Psychiatric Center
13 Kingsboro Psychiatric Center
14 Kirby Forensic Psychiatric Center
15 Manhattan Psychiatric Center
16 Middletown Psychiatric Center
17 Mid-Hudson Forensic Psychiatric Center
18 Mohawk Valley Psychiatric Center
19 Nathan S. Kline Institute for Psychiatric Research
20 New York State Psychiatric Institute
21 Pilgrim Psychiatric Center
22 Richard H. Hutchings Psychiatric Center
23 Rochester Psychiatric Center
24 Rockland Psychiatric Center
25 St. Lawrence Psychiatric Center
26 South Beach Psychiatric Center
27 Bronx Children's Psychiatric Center
28 Brooklyn Children's Psychiatric Center
284 12021-01-1
1 Queens Children's Psychiatric Center
2 Rockland Children's Psychiatric Center
3 Sagamore Children's Psychiatric Center
4 Western New York Children's Psychiatric Center
5 The New York State Psychiatric Institute and The Nathan S. Kline
6 Institute for Psychiatric Research are designated as institutes for the
7 conduct of medical research and other scientific investigation directed
8 towards furthering knowledge of the etiology, diagnosis, treatment and
9 prevention of mental illness.
10 § 3. Paragraph 3 of subdivision (e) of section 7.17 of the mental
11 hygiene law, as amended by chapter 83 of the laws of 1995, is amended to
12 read as follows:
13 3. provide for a mechanism which may reasonably be expected to provide
14 notice to local governments, community organizations, employee labor
15 organizations, managerial and confidential employees, consumer and advo-
16 cacy groups of the potential for significant service reductions at such
17 state-operated hospitals and state-operated research institutes at least
18 twelve months prior to commencing such service reduction, provided,
19 however, that this requirement shall be deemed satisfied with respect to
20 reductions at Central Islip Psychiatric Center, Gowanda Psychiatric
21 Center, Harlem Valley Psychiatric Center, Kings Park Psychiatric Center,
22 Willard Psychiatric Center and , Manhattan Children's Psychiatric
23 Center, Richard H. Hutchings Psychiatric Center, and Middletown Psychi-
24 atric Center; and
25 § 4. Subdivisions (a) and (b) of section 41.11 of the mental hygiene
26 law, subdivision (a) as amended by chapter 672 of the laws of 1982 and
27 subdivision (b) as amended by chapter 206 of the laws of 1989, are
28 amended to read as follows:
285 12021-01-1
1 (a) In all local governments with a population less than one hundred
2 thousand, community services board, at the option of the local govern-
3 ment, shall have either nine or fifteen members appointed by the local
4 government. In all other local governments, a community services board
5 shall have fifteen members appointed by the local government.
6 Whenever practicable at least one member shall be a licensed physician
7 and one member shall be a certified psychologist and otherwise at least
8 two members shall be licensed physicians, such members to have demon-
9 strated an interest in the field of services for the mentally disabled.
10 The other members shall represent the community interest in all the
11 problems of the mentally disabled and shall include representatives from
12 community agencies for the mentally ill, the mentally retarded and
13 developmentally disabled, and those suffering from alcoholism and
14 substance abuse. The community services board shall have separate
15 subcommittees for mental health, mental retardation and developmental
16 disabilities, and alcoholism or, at the discretion of the local govern-
17 ment, alcoholism and substance abuse. Each separate subcommittee shall
18 have no more than nine members appointed by the local government,
19 provided that each subcommittee for mental health shall have no more
20 than eleven members appointed by the local government. Three of each
21 such subcommittee shall be members of the board. Each separate subcom-
22 mittee shall be composed of persons who have demonstrated an interest in
23 the field of services for the particular class of mentally disabled and
24 shall include former patients, parents or relatives of such mentally
25 disabled persons and community agencies serving the particular class of
26 mentally disabled, provided that each subcommittee for mental health
27 shall include at least two members who are or were consumers of mental
28 health services, and two members who are parents or relatives of persons
286 12021-01-1
1 with mental illness. Each separate subcommittee shall advise the commu-
2 nity services board and the director of community services regarding the
3 exercise of all policy-making functions vested in such board or direc-
4 tor, as such functions pertain to the field of services for the partic-
5 ular class of mentally disabled individuals represented by such subcom-
6 mittee. In addition, each subcommittee for mental health shall annually
7 evaluate the local services plan or the unified services plan, as appro-
8 priate, and annually shall report on the consistency of such plans with
9 the needs of persons with serious mental illness, including children and
10 adolescents with serious emotional disturbances, and on the consistency
11 of such plans with the goals and objectives of the statewide comprehen-
12 sive five-year plan for persons with mental illness developed pursuant
13 to section 5.07 of this chapter. The report shall be forwarded annually
14 to the community services board and the director of community services
15 and a copy shall also be sent to the commissioner of mental health prior
16 to the submission to the commissioner of the local services plan or the
17 unified services plan. Provided however that the provisions of this
18 paragraph shall not apply to cities of over a million in population.
19 (b) In cities of over a million a community services board shall
20 consist of fifteen members to be appointed by the mayor. There shall be
21 at least two residents of each county within such cities on the board.
22 At least one shall be a licensed physician and at least one shall be a
23 certified psychologist. The other members shall represent the community
24 interest in all of the problems of the mentally disabled and shall
25 include representatives from community agencies for the mentally ill,
26 the mentally retarded and developmentally disabled, and those suffering
27 from alcoholism and substance abuse. The community services board shall
28 have separate subcommittees for mental health, mental retardation and
287 12021-01-1
1 developmental disabilities, and alcoholism or, at the discretion of the
2 local government, alcoholism and substance abuse. Each separate subcom-
3 mittee shall have no more than nine members appointed by the local
4 government, provided that each subcommittee for mental health shall have
5 no more than eleven members appointed by the local government. Three
6 members of each such subcommittee shall be members of the board. Each
7 separate subcommittee shall be composed of persons who have demonstrated
8 an interest in the field of services for the particular class of mental-
9 ly disabled and shall include former patients, parents or relatives of
10 such mentally disabled persons and community agencies serving the
11 particular class of mentally disabled, provided that each subcommittee
12 for mental health shall include at least two members who are or were
13 consumers of mental health services, and two members who are parents or
14 relatives of persons with mental illness. Each separate subcommittee
15 shall advise the community services board and the director of community
16 services regarding the exercise of all policy-making functions vested in
17 such board or director, as such functions pertain to the field of
18 services for the particular class of mentally disabled individuals
19 represented by such subcommittee. In addition, each subcommittee for
20 mental health shall annually evaluate the local services plan or the
21 unified services plan, as appropriate, and annually shall report on the
22 consistency of such plans with the needs of persons with serious mental
23 illness, including children and adolescents with serious emotional
24 disturbances, and on the consistency of such plans with the goals and
25 objectives of the statewide comprehensive five-year plan for persons
26 with mental illness developed pursuant to section 5.07 of this chapter.
27 The report shall be forwarded annually to the community services board
28 and the director of community services and a copy shall also be sent to
288 12021-01-1
1 the commissioner of mental health prior to the submission to the commis-
2 sioner of the local services plan or the unified services plan.
3 § 5. The mental hygiene law is amended by adding a new section 41.56
4 to read as follows:
5 § 41.56 Community mental health support and workforce reinvestment
6 program.
7 (a) Funds shall be made available for the provision of fee increases
8 and cost-of-living adjustments for certain community-based mental health
9 services, pursuant to subdivisions (b), (c) and (d) of this section,
10 subject to annual appropriations made therefor. Such funds shall also be
11 made available to pay for the state share of medical assistance payments
12 for such services made pursuant to title eleven of article five of the
13 social services law.
14 (b) Funds made available to the office of mental health pursuant to
15 this section shall increase the fees for basic reimbursement paid under
16 the medical assistance program to outpatient programs licensed under
17 article thirty-one of this chapter, provided, however, such fee increase
18 shall not pertain to supplemental reimbursement made under the medical
19 assistance program to comprehensive outpatient programs; to supplemental
20 reimbursement made under the medical assistance program to programs not
21 eligible to be comprehensive outpatient programs; or to supplemental
22 reimbursement made under the medical assistance program for community
23 support program services. Provided, further, such fee increase shall not
24 apply to clinic treatment, day treatment, or continuing day treatment
25 programs dually licensed by the department of health and office of
26 mental health, and such fees for basic reimbursement paid under the
27 medical assistance program to outpatient programs licensed under article
28 thirty-one of this chapter shall not be included in the calculation of
289 12021-01-1
1 any cost-of-living adjustments to be received by any such outpatient
2 mental health program pursuant to subdivision (c) of this section.
3 (c) Funds made available to the office of mental health pursuant to
4 this section shall also be used for payment of an annual cost-of-living
5 adjustment for certain community mental health services provided under
6 this article or article forty-three of this chapter or for operators of
7 family care homes licensed pursuant to article 31.03 of this chapter,
8 provided, however, such cost-of-living adjustment shall not apply to
9 fees for basic reimbursement paid under the medical assistance program
10 to outpatient programs licensed under article thirty-one of this chapter
11 or services which are funded by federal grants, other than medical
12 assistance, administered or received by the office of mental health.
13 Provided, further, such cost-of-living adjustment shall not be made to
14 any rate, fee or other funding if the commissioner determines that a
15 mechanism exists to provide a similar cost-of-living adjustment, or
16 determines that such rate, fee or other funding is adjusted for
17 inflation or is based upon the cost of services provided. The commis-
18 sioner of mental health shall submit a plan for implementation of the
19 cost-of-living adjustment, subject to the approval of the director of
20 the budget, limited to annual appropriations made therefor.
21 (d) Prior to increasing funds for contracts or reimbursement for the
22 provision of services or providing cost-of-living adjustments or fee
23 increases funded pursuant to subdivision (b) or (c) of this section, the
24 office of mental health shall be authorized to consider the reliability
25 and capability of the provider, including its expertise, prior experi-
26 ence, financial responsibility, record of adherence to law, record of
27 providing quality care and services, and ability to deliver appropriate
28 services in a cost-effective and efficient manner to persons with seri-
290 12021-01-1
1 ous mental illness, including children and adolescents with serious
2 emotional disturbances. The commissioner of mental health is hereby
3 authorized to deny cost-of-living adjustments or fee increases or reduce
4 or deny reimbursement of funds otherwise due pursuant to such contracts
5 where the provider fails to meet conditions of this subdivision or other
6 related regulations, standards or contractual obligations.
7 (e) (1) The commissioner of mental health is authorized and empowered
8 to make inspections, examine records and conduct on-site audits of books
9 and records of a local governmental unit or a provider of services
10 receiving such funds pursuant to subdivision (b) or (c) of this section.
11 Such inspections, examination or audits shall be authorized to include
12 all financial, statistical or program information that such commissioner
13 may determine to be necessary, including but not limited to all medical,
14 service and financial records, receipts, disbursements, contracts, loans
15 and other moneys relating to the financial operation of the local
16 governmental unit or provider; and
17 (2) The commissioner of mental health is authorized to promulgate
18 regulations setting limits on the total or component forms of adminis-
19 trative expenses, projected or actual, that may be approved in
20 connection with providers of community mental health services.
21 (f) No provision of this section shall create or be deemed to create
22 any right, interest or entitlement for any individual, locality, provid-
23 er or others to receive community mental health support and workforce
24 reinvestment funds, or any other services or funds, individually or
25 collectively.
26 § 6. (a) Subject to the provisions of this section, for the fiscal
27 years 2001-2002 through 2003-2004, amounts shall be made available for
28 appropriation for community mental health support and workforce rein-
291 12021-01-1
1 vestment for fee increases and cost-of-living adjustments as described
2 in section 41.56 of the mental hygiene law, as added by section five of
3 this act. Such amounts shall be calculated in accordance with subdivi-
4 sions (b), (c) and (d) of this section.
5 (b) The amount of community mental health support and workforce rein-
6 vestment funds for the office of mental health shall be determined annu-
7 ally in the executive budget and shall include the amount of actual
8 state operations general fund appropriation reductions directly attri-
9 buted to each adult inpatient bed closed. For the purposes of this
10 section a bed shall be considered to be closed upon the elimination of
11 funding for such bed in the executive budget. The appropriation
12 reductions as a result of adult inpatient bed closures shall be no less
13 than $65,500 on a full annual basis, as annually recommended by the
14 commissioner of mental health, subject to the approval of the director
15 of the budget, in the executive budget request prior to the fiscal year
16 for which the executive budget is being submitted, provided, however, in
17 no event shall the full annual value of community mental health support
18 and workforce reinvestment funds attributable to beds closed as a result
19 of adult inpatient bed closures exceed the twelve month value of the
20 office of mental health state operations general fund reductions result-
21 ing from such bed closures. Such funds made available pursuant to this
22 subdivision shall be at the same amount by which the office of mental
23 health's state operations general fund appropriations are reduced each
24 year as a result of adult inpatient bed closures, provided, however in
25 fiscal year 2001-2002 the amount of such funds shall be calculated by
26 adding the sum of: (i) half the amount of the appropriation reductions
27 attributed to non-geriatric adult inpatient bed closures; and (ii) the
292 12021-01-1
1 full amount of appropriation reductions attributed to geriatric bed
2 closures.
3 (c) An additional amount of community mental health support and work-
4 force reinvestment shall be made available for appropriation in the
5 executive budget based upon state operations general fund appropriation
6 reductions directly attributed to the re-location or closure of psychi-
7 atric centers pursuant to sections two and eight of this act. Such funds
8 shall be made available at the same amount by which the office of mental
9 health's state operations general fund appropriations are reduced each
10 year as a result of the re-location of the Queens Children's Psychiatric
11 Center, the Rockland Children's Psychiatric Center, the Sagamore Chil-
12 dren's Psychiatric Center, the Western New York Children's Psychiatric
13 Center and the Kirby Forensic Psychiatric Center, and the closure of the
14 Richard H. Hutchings Psychiatric Center and the Middletown Psychiatric
15 Center.
16 (d) Such amounts appropriated each year pursuant to community mental
17 health support and workforce reinvestment shall reflect the amount of
18 the state operations general fund appropriation reductions resulting
19 from subdivisions (b) and (c) of this section. In no event shall the
20 cumulative amount of community mental health support and workforce rein-
21 vestment exceed the cumulative amount of the office of mental health
22 state operations general fund reductions resulting from subdivisions (b)
23 and (c) of this section, provided, however, the total community mental
24 health support and workforce reinvestment appropriation shall include an
25 additional amount, subject to approval of the director of the budget and
26 appropriation in the executive budget, which shall not exceed the
27 following: (1) for fiscal year 2001-2002 the additional amount shall not
28 exceed the value of total appropriation reductions, referenced in subdi-
293 12021-01-1
1 visions (b) and (c) of this section, multiplied by a factor of 1.5; (2)
2 for fiscal year 2002-2003 the additional amount shall not exceed the sum
3 of the value of appropriation reductions in fiscal years 2001-2002 and
4 2002-2003, referenced in subdivisions (b) and (c) of this section,
5 multiplied by a factor of 0.7; and (3) for fiscal year 2003-2004 the
6 additional amount shall not exceed the sum of the value of appropriation
7 reductions in fiscal years 2001-2002, 2002-2003 and 2003-2004, refer-
8 enced in subdivisions (b) and (c) of this section, multiplied by a
9 factor of 0.14.
10 (e) Subject to annual appropriations made therefor, community mental
11 health support and workforce reinvestment made available pursuant to
12 subdivisions (b), (c) and (d) of this section shall be made available to
13 the office of mental health as follows: (1) for fiscal year 2001-2002,
14 funds shall first be used to provide a ten percent fee increase effec-
15 tive October 1, 2001 for services authorized to receive such increase
16 pursuant to subdivision (b) of section 41.56 of the mental hygiene law,
17 as added by section five of this act; and (2) for fiscal years 2001-2002
18 through 2003-2004, funds which have not been allocated pursuant to para-
19 graph one of this subdivision shall be used to provide up to a two and
20 one-half percent cost-of-living adjustment to the nearest tenth of a
21 percent effective October 1, 2001, October 1, 2002 and October 1, 2003
22 for services authorized to receive such cost-of-living adjustment pursu-
23 ant to subdivision (c) of section 41.56 of the mental hygiene law, as
24 added by section five of this act.
25 (f) An additional amount shall be made available to the commissioner
26 of mental health, subject to annual appropriations made therefor, for
27 the development, staffing, and operation of up to 104 state-operated
28 transitional residence beds for adults with mental illness and up to 40
294 12021-01-1
1 state-operated crisis beds for children and adolescents with serious and
2 emotional disturbances, provided, however, by the end of 2003-2004 such
3 amount shall be equivalent to at least 15 percent, but not more than 20
4 percent of the cumulative value of appropriation reductions, calculated
5 on a full annual basis, for fiscal years 2001-2002 through 2003-2004, as
6 referenced in subdivision (b) of this section. Such amount shall not
7 reduce the amount made available for community mental health support and
8 workforce reinvestment pursuant to subdivisions (b), (c), and (d) of
9 this section.
10 (g) For purposes of this section, the term "state operations general
11 fund" shall mean the office of mental health state operations general
12 fund appropriations before any offset from the special revenue funds-
13 other, miscellaneous special revenue fund, mental hygiene patient income
14 account.
15 (h) Nothing in this act shall create or be deemed to create any right,
16 interest or entitlement to services or funds that are the subject of
17 this act, or to any other services or funds, whether to individuals,
18 localities, providers or others, individually or collectively.
19 (i) Notwithstanding any other provision of law, any reconciliation on
20 or after the effective date of this section for the variance between the
21 initial and revised estimates of census reductions, pursuant to subdivi-
22 sion (j) of section 19 of chapter 723 of the laws of 1993 and as
23 extended by chapter 358 of the laws of 1998, shall be made available
24 exclusively for community mental health support and workforce reinvest-
25 ment pursuant to section 41.56 of the mental hygiene law, as added by
26 section five of this act.
27 (j) All methodologies used to determine allocation amounts made pursu-
28 ant to this section and section 41.56 of the mental hygiene law, as
295 12021-01-1
1 added by section five of this act, shall be developed in the sole
2 discretion of the commissioner of the office of mental health and the
3 director of the budget.
4 § 7. As used in this section, the term "shared staff services" shall
5 mean mental health services provided by employees of the office of
6 mental health who have been assigned to provide mental health services
7 in programs operated by counties, not-for-profit agencies, or hospitals,
8 except such term shall not include those state employees whose positions
9 were assigned to provide such services and were originally funded by
10 amounts made available pursuant to subdivision (d) of section nineteen
11 of chapter 723 of the laws of 1993, as extended by chapter 358 of the
12 laws of 1998. Appropriations made to the office of mental health related
13 to shared staff services shall be made available to the local govern-
14 mental unit in which such services were provided, as the positions
15 providing such services become vacant. Such local governmental unit
16 shall utilize such funds for the provision of services pursuant to the
17 local services plan or unified services plan, as applicable, developed
18 pursuant to article forty-one of the mental hygiene law. Any state
19 employee who shall be providing shared staff services on March 31, 2004,
20 shall be reassigned to state-operated programs, as determined by the
21 commissioner of mental health, in a manner consistent with applicable
22 law, and the funds be made available to the appropriate local govern-
23 mental unit, pursuant to this section.
24 § 8. This act shall take effect on October 1, 2001; except that:
25 (a) notwithstanding any other law to the contrary, including but not
26 limited to subdivision (e) of section 7.17 of the mental hygiene law,
27 the re-location of Western New York Children's Psychiatric Center to
28 Buffalo Psychiatric Center, shall take effect on April 1, 2002; the
296 12021-01-1
1 closure of Richard H. Hutchings Psychiatric Center, as directed by
2 section two of this act, shall take effect on January 1, 2003; the
3 re-location of Sagamore Children's Psychiatric Center to Pilgrim Psychi-
4 atric Center, shall take effect on January 1, 2003; the re-location of
5 Rockland Children's Psychiatric Center to Rockland Psychiatric Center,
6 shall take effect on January 1, 2003; the re-location of Kirby Forensic
7 Psychiatric Center to Manhattan Psychiatric Center, shall take effect on
8 July 1, 2003; the re-location of Queens Children's Psychiatric Center to
9 Creedmoor Psychiatric Center, shall take effect on October 1, 2003; the
10 closure of Middletown Psychiatric Center, as directed by section two of
11 this act, shall take effect on January 1, 2004;
12 (b) sections one and four of this act shall take effect on September
13 30, 2002;
14 (c) subdivisions (a), (b), (c), (d), and (e) of section six of this
15 act shall expire and be deemed repealed March 31, 2004;
16 (d) section five of this act, and subdivisions (f), (g), (h), (i) and
17 (j) of section six of this act shall expire and be deemed repealed March
18 31, 2005; and
19 (e) section seven of this act shall take effect on April 1, 2001 and
20 shall expire and be deemed repealed March 31, 2004.
21 PART O
22 Section 1. Subdivision (b) of section 13.17 of the mental hygiene law,
23 as amended by section 1 of part N of chapter 57 of the laws of 2000, is
24 amended to read as follows:
25 (b) There shall be in the office the developmental disabilities
26 services offices named below serving the areas either currently or
297 12021-01-1
1 previously served by a school, for the care and treatment of the mental-
2 ly retarded and developmentally disabled and for research and teaching
3 in the science and skills required for the care and treatment of such
4 mentally retarded and developmentally disabled:
5 Bernard M. Fineson Developmental Disabilities Services Office
6 Brooklyn Developmental Disabilities Services Office
7 Broome Developmental Disabilities Services Office
8 Capital District Developmental Disabilities Services Office
9 Central New York Developmental Disabilities Services Office
10 Finger Lakes Developmental Disabilities Services Office
11 Institute for Basic Research in Developmental Disabilities
12 Hudson Valley Developmental Disabilities Services Office
13 Metro New York Developmental Disabilities Services Office
14 Long Island Developmental Disabilities Services Office
15 Sunmount Developmental Disabilities Services Office
16 Taconic Developmental Disabilities Services Office
17 Western New York Developmental Disabilities Services Office
18 Staten Island Developmental Disabilities Services Office
19 Valley Ridge Center for Intensive Treatment
20 The New York State Institute for Basic Research in Developmental Disa-
21 bilities is designated as an institute for the conduct of medical
22 research and other scientific investigation directed towards furthering
23 knowledge of the etiology, diagnosis, treatment and prevention of mental
24 retardation and developmental disabilities.
25 § 2. This act shall take effect April 1, 2001.
26 § 2. Severability clause. If any clause, sentence, paragraph, subdivi-
27 sion, section or part of this act shall be adjudged by any court of
28 competent jurisdiction to be invalid, such judgment shall not affect,
298 12021-01-1
1 impair, or invalidate the remainder thereof, but shall be confined in
2 its operation to the clause, sentence, paragraph, subdivision, section
3 or part thereof directly involved in the controversy in which such judg-
4 ment shall have been rendered. It is hereby declared to be the intent of
5 the legislature that this act would have been enacted even if such
6 invalid provisions had not been included herein.
7 § 3. This act shall take effect immediately provided, however, that
8 the applicable effective date of Parts A through O of this act shall be
9 as specifically set forth in the last section of such Parts.