2002-03 Budget - Article 7 Bill S6257 - MHEC
STATE OF NEW YORK
________________________________________________________________________
S. 6257 A. 9759
SENATE - ASSEMBLY
January 28, 2002
___________
IN SENATE -- A BUDGET BILL, submitted by the Governor pursuant to arti-
cle seven of the Constitution -- read twice and ordered printed, and
when printed to be committed to the Committee on Finance
IN ASSEMBLY -- A BUDGET BILL, submitted by the Governor pursuant to
article seven of the Constitution -- read once and referred to the
Committee on Ways and Means
AN ACT to amend the environmental conservation law, in relation to surf
clams and ocean quahogs (Part A); to amend chapter 67 of the laws of
1992, amending the environmental conservation law relating to pesti-
cide product registration timetables and fees, in relation to the
effectiveness thereof and to amend the environmental conservation law,
in relation to review of pesticide registration applications and
registration fees and the revision of pesticides applicator certif-
ication fees (Part B); to amend the agriculture and markets law, in
relation to certain license fees (Part C); to amend the state finance
law and the vehicle and traffic law, in relation to vessel registra-
tion fees and boating access facilities (Part D); to amend the agri-
culture and markets law, in relation to certain pet food brand regis-
tration and weighmaster license fees (Part E); to amend chapter 259 of
the laws of 2000, amending the general business law, the agriculture
and markets law and the state finance law, relating to registration
and regulation of pet dealers, in relation to the implementation ther-
eof (Part F); 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 environmental conservation law relat-
ing thereto (Part G); to amend the parks, recreation and historic
preservation law and the vehicle and traffic law, in relation to snow-
mobile fees (Part H); to amend the state finance law and the environ-
mental conservation law, in relation to state parks and lands infras-
tructure and stewardship projects, and to repeal certain provisions of
the state finance law relating to the environmental protection fund
and certain provisions of the environmental conservation law relating
to nonpoint source water pollution control (Part I); to amend the
environmental conservation law, the civil practice law and rules, the
general municipal law, the navigation law, the public authorities law,
the public health law, the real property law and the state finance
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD12371-01-2
S. 6257 2 A. 9759
law, in relation to the remediation of inactive hazardous waste
disposal sites and the cleanup and removal of petroleum discharges,
and to repeal section 27-1316 of the environmental conservation law
and section 1389-e of the public health law relating thereto; to amend
chapter 83 of the laws of 1995 amending the state finance law and
other laws relating to bonds, notes and revenue, in relation to making
permanent certain provisions thereof; to amend the tax law, in
relation to tax credits for brownfield redevelopment and for the
development of remediated brownfields, 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 (Part J); to
repeal the youth opportunity program act (Part K)
The People of the State of New York, represented in Senate and Assem-
bly, do enact as follows:
1 Section 1. This act enacts into law major components of legislation
2 which are necessary to implement the state fiscal plan for the 2002-2003
3 state fiscal year. Each component is wholly contained within a Part
4 identified as Parts A through K. 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 14 of section 13-0309 of the environmental
14 conservation law, as amended by section 1 of part C of chapter 61 of the
15 laws of 2000, is amended to read as follows:
16 14. The department[, until January first, two thousand two] shall be
17 entitled to collect fifteen cents per bushel of surf clams and ten cents
18 per bushel of ocean quahogs taken from all certified waters to be depos-
19 ited in the surf clam/ocean quahog account as provided in section eight-
20 y-three of the state finance law.
21 § 2. This act shall take effect immediately and shall be deemed to
22 have been in full force and effect on and after January 1, 2002.
23 PART B
24 Section 1. Section 9 of chapter 67 of the laws of 1992, amending the
25 environmental conservation law relating to pesticide product registra-
26 tion timetables and fees, as amended by section 2 of part C of chapter
27 413 of the laws of 1999, is amended to read as follows:
28 § 9. This act shall take effect April 1, 1992 provided, however, that
29 section 3 of this act shall take effect July 1, 1993 [and shall expire
30 and be deemed repealed on July 1, 2002].
31 § 2. Section 33-0705 of the environmental conservation law, as sepa-
32 rately amended by chapters 194 and 309 of the laws of 1996 and subdivi-
33 sions a, b and c as amended by section 1 of part C of chapter 413 of the
34 laws of 1999, is amended to read as follows:
35 § 33-0705. Fee for registration.
S. 6257 3 A. 9759
1 The applicant for registration shall pay a fee as follows:
2 a. [On or before July 1, 2002, one] One hundred dollars for each
3 pesticide proposed to be registered, provided that the applicant has
4 submitted to the department proof in the form of a federal income tax
5 return for the previous year showing gross annual sales, for federal
6 income tax purposes, of three million five hundred thousand dollars or
7 less;
8 b. [On or before July 1, 2002 for] For all others, three hundred
9 dollars for each pesticide proposed to be registered[;
10 c. After July 1, 2002, fifty dollars for each pesticide proposed to be
11 registered].
12 § 3. Subdivision 2 of section 33-0901 of the environmental conserva-
13 tion law, as amended by chapter 612 of the laws of 1983, is amended to
14 read as follows:
15 2. Any person desiring such a permit shall file an application
16 containing such information required by the commissioner and in a form
17 prescribed by the commissioner. The commissioner shall examine the
18 application and shall issue or refuse to issue the permit requested
19 therein. The commissioner shall impose whatever restrictions or condi-
20 tions on the permit he deems appropriate in order to fully protect the
21 public interest. Such a permit shall not be valid for more than [two
22 years] one year as determined by the commissioner. A separate permit is
23 required for each location in the state, and a fee for each location in
24 the state of one hundred fifty dollars is required.
25 § 4. Paragraph d of subdivision 3 of section 33-0905 of the environ-
26 mental conservation law, as added by chapter 612 of the laws of 1983, is
27 amended to read as follows:
28 d. Pesticide applicator certifications shall be valid for [six] five
29 years after which every applicator shall recertify according to the
30 requirements then in effect. Certification identification cards shall be
31 valid for [three years] one year.
32 § 5. Section 33-0911 of the environmental conservation law, as added
33 by chapter 612 of the laws of 1983, is amended to read as follows:
34 § 33-0911. Certification and registration fees.
35 1. Every applicant for pesticide applicator certification shall pay an
36 examination fee of [ten] fifty dollars for each examination.
37 2. [Fees] Annual fees for pesticide applicator [certificates] certif-
38 ication shall be [fifteen] seventy-five dollars for commercial pesticide
39 applicator certification in [each] one individual category, twenty-five
40 dollars for each additional category and [five] twenty-five dollars for
41 each additional sub-category chosen. For private applicators [a] the
42 annual fee [of] shall be fifteen dollars for the initial certified
43 private applicator and five dollars for subsequent applicators on the
44 same [form of] farm or business [shall be charged at the time of initial
45 certification, renewal of certification or recertification].
46 3. Pesticide businesses shall pay an annual registration fee of one
47 hundred fifty dollars. When the applicant regularly maintains or oper-
48 ates more than one business address a fee may be required for each of
49 the applicant's business addresses in the state. Any agency which is a
50 state agency, municipal corporation, public authority, or college shall
51 be exempt from any fee for registration.
52 § 6. This act shall take effect April 1, 2002; provided, however, if
53 this act shall become a law after such date it shall take effect imme-
54 diately and shall be deemed to have been in full force and effect on and
55 after April 1, 2002.
S. 6257 4 A. 9759
1 PART C
2 Section 1. Section 251-z-3 of the agriculture and markets law, as
3 amended by chapter 233 of the laws of 1996, is amended to read as
4 follows:
5 § 251-z-3. Licenses; fees. No person shall maintain or operate a food
6 processing establishment unless licensed [biennially] by the commission-
7 er. Application for a license to operate a food processing establish-
8 ment shall be made, upon a form prescribed by the commissioner, on or
9 before the fifteenth of the month preceding the applicable license peri-
10 od as herein prescribed. The beginning of the license period for an
11 applicant shall be determined by the alphabetical order of an individual
12 applicant's surname or the first word in the name of any other legal
13 entity. The license period shall begin February fifteenth for applicants
14 A through D, May fifteenth for applicants E through K, August fifteenth
15 for applicants L through R, November fifteenth for applicants S through
16 Z. [For the license periods beginning September fifteenth, nineteen
17 hundred ninety-six through September fifteenth, nineteen hundred nine-
18 ty-eight, the commissioner is authorized to stagger license renewals.]
19 The applicant shall furnish evidence of his or her good character,
20 experience and competency, that the establishment has adequate facili-
21 ties and equipment for the business to be conducted, that the establish-
22 ment is such that the cleanliness of the premises can be maintained and
23 that the product produced therein will not become adulterated. The
24 commissioner, if so satisfied, shall issue to the applicant, upon
25 payment of the license fee of [seventy] one hundred dollars, a license
26 to operate the food processing establishment described in the applica-
27 tion for [two years] one year from the applicable license commencement
28 period set forth hereinabove. The commissioner shall prorate the license
29 fee for any person applying for a new license after the commencement of
30 the license period for such applicant's alphabetical group.
31 Notwithstanding any other provision of law to the contrary, the
32 commissioner is hereby authorized and directed to deposit all money
33 received pursuant to this section in an account within the miscellaneous
34 special revenue fund.
35 § 2. This act shall take effect immediately.
36 PART D
37 Section 1. Subdivisions 1 and 2 of section 97-nn of the state finance
38 law, as amended by chapter 138 of the laws of 1998, are amended to read
39 as follows:
40 1. There is hereby established in the joint custody of the commission-
41 er of parks, recreation and historic preservation and the state comp-
42 troller a special fund to be known as the "I love NY waterways" boating
43 safety fund. The moneys in such fund shall be available upon appropri-
44 ation to the office of parks, recreation and historic preservation for:
45 (a) the administration and enforcement of the boating safety program
46 including payments to counties for expenditures incurred in connection
47 with such county's waterway boating safety program pursuant to section
48 seventy-nine-b of the navigation law, including costs and expenses inci-
49 dental and appurtenant thereto; and
50 (b) the creation, enhancement or maintenance of state or municipal
51 facilities or services to provide boating access to the waters of the
52 state, provided that the state share of the cost of any project for the
S. 6257 5 A. 9759
1 creation, enhancement or maintenance of municipal facilities or services
2 shall not exceed fifty percent of such cost.
3 2. The "I love NY waterways" boating safety fund shall consist of:
4 (a) the revenues required to be deposited therein pursuant to the
5 provisions of sections seventy-eight and two hundred one of the naviga-
6 tion law, and all other moneys credited or transferred thereto from any
7 other fund or source pursuant to law; and
8 (b) the vessel access subaccount consisting of the revenues derived
9 from the vessel access surcharge collected upon the registration of
10 vessels pursuant to section twenty-two hundred fifty-one of the vehicle
11 and traffic law.
12 § 2. Subdivision 3 of section 2251 of the vehicle and traffic law, as
13 added by chapter 484 of the laws of 1985, is amended to read as follows:
14 3. Fees. The triennial fee for registration of a vessel shall be:
15 [nine] eighteen dollars and a vessel access surcharge of three dollars,
16 if less than sixteen feet in length; [eighteen] thirty-six dollars and a
17 vessel access surcharge of ten dollars, if sixteen feet or over but less
18 than twenty-six feet in length; [thirty] sixty dollars and a vessel
19 access surcharge of fifteen dollars, if twenty-six feet or over. All
20 funds derived from the collection of the vessel access surcharge pursu-
21 ant to this subdivision are to be deposited in a sub-account of the "I
22 love NY waterways" boating safety fund established pursuant to section
23 ninety-seven-nn of the state finance law. The vessel access surcharge
24 shall not be considered a registration fee for purposes of section
25 seventy-nine-b of the navigation law.
26 § 3. This act shall take effect on the ninetieth day after it shall
27 have become a law.
28 PART E
29 Section 1. Subdivision 2 of section 129 of the agriculture and markets
30 law, as added by chapter 816 of the laws of 1974, is amended to read as
31 follows:
32 2. No person shall distribute in this state any pet food or specialty
33 pet food unless the brand thereof has been registered pursuant to the
34 provisions of this section. An application for such registration of a
35 pet food or specialty pet food shall be accompanied by a registration
36 fee of [twenty-five] one hundred dollars for each brand to be distrib-
37 uted, said fee to be paid annually thereafter. If any brand of a pet
38 food or specialty pet food changes in any way after such brand has been
39 registered, a new application therefor shall be made pursuant to the
40 provisions of this section.
41 § 2. Subdivision 2 of section 195 of the agriculture and markets law,
42 as added by chapter 874 of the laws of 1977, is amended to read as
43 follows:
44 2. Upon application, a weighmaster's license may be issued by the
45 commissioner to an employee of a person, firm, partnership or corpo-
46 ration whose business requires, by contract or otherwise, that materials
47 or commodities manufactured, produced, distributed, sold or handled by
48 such person, firm, partnership or corporation be weighed by a licensed
49 weighmaster; or such license may be issued to an individual engaged in
50 the weighing of materials or commodities. The applicant shall furnish
51 satisfactory evidence of good character and of ability to weigh accu-
52 rately and to make correct weight tickets. He shall also furnish
53 evidence that he owns, leases or has access to a stationary scale within
54 the state suitable for weighing the materials or commodities to be
S. 6257 6 A. 9759
1 weighed by him or that he is regularly employed by a person, firm, part-
2 nership or corporation who owns, leases or has access to such a scale
3 which has been tested and sealed by the weights and measures official
4 charged with such duty. The applicant shall pay a fee of [ten] fifteen
5 dollars. A license shall be for a period not exceeding three years and
6 may be renewed in the discretion of the commissioner upon payment of the
7 fee aforesaid. Such license shall be kept at the place where the weigh-
8 master is engaged in weighing and shall be open to inspection. An appli-
9 cation may be denied or a license may be revoked by the commissioner,
10 after a hearing upon due notice to the applicant or licensee, for
11 dishonesty, incompetency, inaccuracy or a violation of the provisions of
12 this article or the rules and regulations adopted pursuant thereto.
13 § 3. This act shall take effect immediately and shall be deemed to
14 have been in full force and effect on and after April 1, 2002.
15 PART F
16 Section 1. Section 6 of chapter 259 of the laws of 2000 amending the
17 general business law, the agriculture and markets law and the state
18 finance law, relating to registration and regulation of pet dealers, is
19 amended to read as follows:
20 § 6. This act shall take effect immediately; provided that sections
21 one, two and three of this act shall take effect 180 days after it shall
22 have become a law; and sections four and five of this act shall take
23 effect April 1, [2002] 2003; provided, further, that any rules and regu-
24 lations necessary for the timely implementation of this act on its
25 effective date shall be promulgated on or before such date.
26 § 2. This act shall take effect immediately.
27 PART G
28 Section 1. Subdivision 2 of section 3-0113 of the environmental
29 conservation law, as amended by chapter 62 of the laws of 1989, is
30 amended to read as follows:
31 2. Any [county, city, town or village clerk who] entity which is
32 authorized by section 11-0713 of this chapter to sell hunting, trapping
33 and fishing licenses is hereby authorized, but not required, to sell
34 annual subscriptions to the department's official magazine, "The New
35 York State Conservationist." The fee to be charged [by a clerk] for a
36 subscription to such magazine shall be such fee as the commissioner may,
37 after consultation with the division of the budget, deem necessary for
38 the best interest of the state. Such fee shall be collected [by the
39 clerk] from each subscriber at the time of receiving application for
40 subscription. [Each clerk shall remit direct to the department on the
41 first and fifteenth of each month all fees collected by him from
42 subscribers, less fifty cents for each year's subscription obtained,
43 which he shall be entitled to retain. Subscription applications, filled
44 out to indicate the names and addresses of the persons to whom the maga-
45 zine is to be sent, shall also be forwarded to the department by the
46 clerks on the first of each month. The fifty cents which a clerk is
47 authorized to deduct from each year's subscription obtained shall be
48 subject to laws providing for the disposition of other fees arising from
49 the performance of his official duties as clerk] All collected fees,
50 minus a 5.5 percent commission, shall be remitted monthly, on a schedule
51 to be determined by the department. All receipts of the department from
52 subscriptions shall be deposited in an account in the miscellaneous
S. 6257 7 A. 9759
1 special revenue fund-other. The comptroller is authorized and directed
2 to permit interest earnings on any balances to accrue to the benefit of
3 this account.
4 § 2. Subdivision 13 of section 11-0305 of the environmental conserva-
5 tion law is REPEALED and subdivisions 14, 15, 16 and 17, subdivision 14
6 as renumbered by chapter 911 of the laws of 1990, are renumbered subdi-
7 visions 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 department shall, by rule, establish the fee for the habitat
14 stamp which shall not exceed five dollars plus an additional amount for
15 the issuing agent or officer. The purchase of a stamp is voluntary and a
16 stamp need not be possessed in order to take fish or wildlife.
17 § 4. Paragraph (a) of subdivision 3 of section 11-0327 of the environ-
18 mental conservation law, as added by chapter 308 of the laws of 1994, is
19 amended to read as follows:
20 (a) To review the allocations and expenditures of the department for
21 fish and wildlife purposes as provided in section 11-0303 of this title
22 and report to the commissioner by [July first] November fifteenth of
23 each year. [The commissioner shall, by August first of each year, submit
24 such report, in its entirety, to the governor, the legislature and
25 interested individuals and organizations.] To assist the board in its
26 review, the department shall by September first of each year make avail-
27 able to the board current and anticipated income and expenditures for
28 the fish and wildlife programs, including planned expenditures by time
29 and activity code for the next fiscal year. Such report shall include
30 the findings of the advisory board regarding such allocations and
31 expenditures, including expenditures and appropriations from the conser-
32 vation fund and the extent to which such expenditures and appropriations
33 are consistent with the requirements of state law. The report shall
34 also include recommended maximum annual fees for the licenses and stamps
35 identified in subdivision 3 of section 11-0715 of this article. In
36 recommending such fees the board shall consider economic indicators, the
37 status of the conservation fund, and such program indicators as it may
38 deem appropriate. The commissioner shall submit such report, in its
39 entirety, to the governor and the legislature.
40 § 5. Subparagraph 1 of paragraph a of subdivision 2 of section 11-0701
41 of the environmental conservation law is REPEALED and a new subparagraph
42 1 is added to read as follows:
43 (1) A small and big game license entitles the resident holder to hunt
44 wildlife subject to the following:
45 (i) a holder who is eighteen years of age or older may hunt wildlife
46 as provided in title 9 of this article,
47 (ii) a holder who is sixteen years of age or older may hunt wildlife,
48 except big game, as provided in title 9 of this article, and
49 (iii) a holder who is between the ages of sixteen and eighteen may
50 hunt big game pursuant to the provisions of title 9 of this article
51 while the holder is accompanied by a parent, guardian or person over the
52 age of eighteen as required by section 11-0929 of this article.
53 A holder may take fish with a gun or longbow as provided in titles 9
54 and 13 of this article.
55 § 6. Paragraph b of subdivision 2 of section 11-0701 of the environ-
56 mental conservation law is amended to read as follows:
S. 6257 8 A. 9759
1 b. A special antlerless deer license is applicable to the hunting of
2 wild antlerless deer in a special open season fixed pursuant to subdivi-
3 sion 6 of section 11-0903 of this article in a tract within a Wilderness
4 Hunting Area and entitles the holder of a [big game license who is enti-
5 tled to hunt wild deer as provided in paragraph a] license which author-
6 izes the holder to hunt big game to hunt antlerless deer in such special
7 open season, as provided in title 9 of this article if he has on his
8 person while so hunting both his [big game] license which authorizes the
9 holder to hunt big game and his special antlerless deer license.
10 § 7. Paragraph c of subdivision 2 of section 11-0701 of the environ-
11 mental conservation law, as amended by chapter 57 of the laws of 1993,
12 is amended to read as follows:
13 c. A junior archery license entitles a resident holder who is between
14 the ages of fourteen and sixteen years to hunt wild deer and bear with a
15 longbow during the special archery season and during the regular season
16 [in areas restricted to bowhunting only], as provided in title 9 of this
17 article, as if such person held a [big game] license which authorizes
18 the holder to hunt big game with a bowhunting stamp affixed, subject to
19 the provisions of section 11-0929 and subdivision [6] 3 of section
20 11-0713 of this article. It entitles a non-resident holder who is
21 between the ages of fourteen and sixteen years to hunt wild deer and
22 bear with a longbow during the special archery season and during the
23 regular season [in areas restricted to bowhunting only], as provided in
24 title 9 of this article, as if such person held a non-resident bowhunt-
25 ing license, a non-resident license which authorizes the holder to hunt
26 deer and a non-resident bear tag, subject to the provisions of section
27 11-0929 and subdivision [six] 3 of section 11-0713 of this article.
28 § 8. Paragraphs d and e of subdivision 2 of section 11-0701 of the
29 environmental conservation law are REPEALED.
30 § 9. Subdivision 3 of section 11-0701 of the environmental conserva-
31 tion law, as amended by chapter 160 of the laws of 1979, is amended to
32 read as follows:
33 3. A bowhunting stamp when affixed to a [big game] resident license
34 which authorizes the holder to hunt big game entitles a holder who is
35 eighteen years of age or older to hunt wild deer and bear with a long-
36 bow, as provided in title 9 of this article, in a special longbow
37 season, and it entitles a holder who is between the ages of sixteen and
38 eighteen years to exercise the same privileges subject to the provisions
39 of section 11-0929 and subdivision [6] 3 of section 11-0713 of this
40 article.
41 § 10. Subdivision 5 of section 11-0701 of the environmental conserva-
42 tion law, as amended by chapter 57 of the laws of 1993, is amended to
43 read as follows:
44 5. a. A combined resident [hunting,] fishing and small and big game
45 license hereinafter in this article referred to as a sportsman license,
46 entitles the holder to the privileges the holder would have if the hold-
47 er held separately a [hunting, a] fishing license and a small and big
48 game license.
49 b. A combined resident fishing, small and big game, bowhunting and
50 muzzle-loading license, hereinafter in this article referred to as a
51 resident super-sportsman license, entitles the holder to the privileges
52 the holder would have if the holder held separately a fishing license, a
53 small and big game license, a bowhunting stamp, a muzzle-loading stamp,
54 and a turkey permit.
55 § 11. Subdivision 6 of section 11-0701 of the environmental conserva-
56 tion law, as amended by chapter 646 of the laws of 1977 and as renum-
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1 bered by chapter 208 of the laws of 1978 and the opening paragraph as
2 redesignated by chapter 450 of the laws of 1991, is amended to read as
3 follows:
4 6. A [combination] free [hunting-big game hunting-fishing] sportsman
5 license entitles the holder to the privileges [he] the holder would have
6 if [he] the holder held[,] separately[,] a [hunting,] small and big game
7 [hunting] license and a fishing license[, provided, however, if the said
8 combination free hunting-big game hunting-fishing license is stamped by
9 the issuing clerk "FISHING ONLY" the holder is entitled only to the
10 privileges he would have if he 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.
27 § 15. Subdivision 12 of section 11-0701 of the environmental conserva-
28 tion law, as added by chapter 450 of the laws of 1991 and as renumbered
29 by chapter 470 of the laws of 1994, is amended to read as follows:
30 12. a. A junior [hunting] small game license entitles the holder age
31 twelve to age [sixteen] thirteen to hunt [small game] wildlife, except
32 big game, as provided in title 9 of this article subject, specifically,
33 to the provisions of section 11-0929 of this article. It entitles such
34 holder to possess firearms as provided in section 265.05 of the penal
35 law.
36 b. A junior small and big game license entitles the holder age four-
37 teen to age sixteen to hunt wildlife, except big game, pursuant to the
38 provisions of title 9 of this article and to hunt big game during the
39 special muzzle-loading season and during the regular season, as provided
40 in title 9 of this article, as if such person held a license which
41 authorizes the holder to hunt big game with a muzzle-loading stamp
42 affixed, provided that the holder is accompanied by a parent, guardian
43 or person over the age of eighteen as required by section 11-0929 of
44 this article.
45 § 16. Subdivisions 13, 14 and 15 of section 11-0701 of the environ-
46 mental conservation law, as added by chapter 57 of the laws of 1993 and
47 as renumbered by chapter 470 of the laws of 1994, are amended to read as
48 follows:
49 13. A non-resident bowhunting license entitles a person who has not
50 been a resident of the state for more than thirty days to hunt wild deer
51 with a longbow in a special longbow season [and during the regular
52 season] as provided [for] in title 9 of this article and, when accompa-
53 nied by a non-resident bear tag, entitles the holder to hunt bear with a
54 longbow during the open bear season.
55 14. A non-resident muzzle-loading license entitles a person who has
56 not been a resident of the state for more than thirty days to hunt wild
S. 6257 10 A. 9759
1 deer with a [muzzleloader] muzzle-loading firearm in a special muzzle-
2 loading season [and during the regular season] as provided [for] in
3 title 9 of this article and, when accompanied by a non-resident bear
4 tag, entitles the holder to hunt bear with a muzzleloader during the
5 open bear season.
6 15. A non-resident combined hunting, fishing, big game, bowhunting and
7 muzzle-loading license, hereinafter in this article referred to as a
8 non-resident super-sportsman license, entitles a person who has not been
9 a resident of the state for more than thirty days to the privileges that
10 the holder would have if the holder held separately a non-resident hunt-
11 ing license, a non-resident fishing license, a non-resident big game
12 license, a non-resident bowhunting [and] license, a non-resident
13 muzzle-loading license[, except that only one bear may be taken] and a
14 non-resident turkey permit.
15 § 17. Section 11-0701 of the environmental conservation law is amended
16 by adding two new subdivisions 16 and 17 to read as follows:
17 16. A conservation legacy license entitles the holder to fish, hunt
18 wildlife, hunt big game with a longbow and a muzzle-loading firearm
19 during special seasons therefor, hunt turkey, enjoy the benefits of a
20 voluntary habitat stamp and receive the "New York State Conservationist"
21 magazine as if the holder of such license held separately a resident
22 super-sportsman license, a voluntary habitat stamp and a subscription to
23 the "New York State Conservationist" magazine.
24 17. A conservation patron license entitles the holder to the benefits
25 of a voluntary habitat stamp and a subscription to "New York State
26 Conservationist" magazine as if the holder of such license held sepa-
27 rately a voluntary habitat stamp and a subscription to the "New York
28 State Conservationist" magazine.
29 § 18. Subdivisions 1 and 2 of section 11-0702 of the environmental
30 conservation law, subdivision 1 as amended by chapter 57 of the laws of
31 1993, paragraph a of subdivision 1 as amended by chapter 245 of the laws
32 of 1995 and subdivision 2 as added by chapter 352 of the laws of 1987,
33 are amended to read as follows:
34 1. There are hereby created the following lifetime hunting, fishing,
35 trapping, archery and muzzle-loading licenses and fees therefor subject
36 to the same privileges and obligations of a comparable short term
37 license:
38 Licenses Fees
39 a. Lifetime [resident combined
40 hunting, fishing and big game]
41 sportsman license and
42 turkey permit. If purchased,
43 for a child four years of age or younger [$250.00] $300.00
44 for a child age five through
45 eleven years of age [$350.00] $420.00
46 for a person age twelve through
47 sixty-four years of age [$500.00] $600.00
48 for a person age sixty-five
49 and over. $ 50.00
50 b. Lifetime [resident hunting]
51 small and big game license. [$250.00] $350.00
S. 6257 11 A. 9759
1 c. Lifetime [resident] fishing
2 license. [$250.00] $350.00
3 d. Lifetime [resident] trapping
4 license. [$250.00] $300.00
5 e. Lifetime [resident] archery
6 stamp. [$125.00] $180.00
7 f. Lifetime [resident] muzzle-
8 loading stamp. [$125.00] $180.00
9 [g. Lifetime resident big game hunting
10 license. $250.00]
11 The holder of a lifetime [resident hunting,] small and big game
12 license or fishing license may, at any time, convert such license to a
13 lifetime [resident combined hunting, fishing and big game] sportsman
14 license and turkey permit for an additional fee equal to the existing
15 differential.
16 2. Legal residency within the state of New York shall be a prerequi-
17 site for persons to obtain, or have obtained for them, any lifetime
18 licenses included within this section. Lifetime licenses so obtained
19 shall continue to be valid for use within the state by the person to
20 whom the lifetime license was issued, regardless of a change in residen-
21 cy of that lifetime license holder. Holders of lifetime licenses which
22 include lifetime big game privileges who become non-residents of the
23 state may continue to obtain resident bowhunting and muzzle-loading
24 stamps, including lifetime archery and muzzle-loading stamps. Holders of
25 lifetime licenses which include bowhunting and muzzle-loading privileges
26 who become non-residents of the state may continue to obtain resident
27 big game privileges, including lifetime sportsman or small and big game
28 licenses. An annual turkey permit will be granted at no additional fee
29 as an additional privilege of all existing lifetime sportsman licenses.
30 Possession of lifetime licenses is nontransferable.
31 § 19. Paragraph c of subdivision 3 of section 11-0702 of the environ-
32 mental conservation law, as added by chapter 352 of the laws of 1987 and
33 such subdivision as renumbered by chapter 626 of the laws of 1988, is
34 amended to read as follows:
35 c. (i) for the replacement of a lost license upon application with a
36 notarized affidavit and a fee of five dollars[; (ii) for individualized
37 selection, up to six digits, of a lifetime license serial number for an
38 additional fee of five dollars; and (iii)] and (ii) for gift
39 inscriptions, up to twenty-three characters, on lifetime licenses for an
40 additional fee of five dollars;
41 § 20. Subdivision 2 of section 11-0703 of the environmental conserva-
42 tion law, as amended by chapter 57 of the laws of 1993, is amended to
43 read as follows:
44 2. No license, permit, tag or stamp is transferable. No person shall
45 alter, change, lend to another or attempt to transfer to another any
46 license or any button, permit, tag or stamp issued therewith. No person,
47 while hunting, shall possess a license, button, permit, tag or stamp
48 which was issued to another person unless actually accompanied by the
49 person to whom such license, button, permit, tag or stamp was issued. No
50 person shall purchase, possess or use more than one junior archery,
51 junior small and big game, small and big game, big game, [combined resi-
S. 6257 12 A. 9759
1 dent hunting, fishing and big game] bowhunting, muzzle-loading, sports-
2 man, or resident super-sportsman license or stamp, non-resident bowhunt-
3 ing or muzzle-loading license, [combined] non-resident [hunting,
4 fishing, big game, bowhunting and muzzle-loading] super-sportsman
5 license, non-resident bear tag or special permit for the current license
6 year, except as permitted by [rule or] regulation of the department.
7 § 21. Subdivision 4 of section 11-0703 of the environmental conserva-
8 tion law, as amended by chapter 450 of the laws of 1991, paragraphs a,
9 b, c and d as amended by chapter 57 of the laws of 1993 and paragraph e
10 as relettered by chapter 470 of the laws of 1994, is amended to read as
11 follows:
12 4. a. [Five-day] Non-resident fishing [licenses, combined], non-resi-
13 dent [hunting, fishing, big game, bowhunting and muzzle-loading] super-
14 sportsman, non-resident bowhunting or muzzle-loading [and], or non-resi-
15 dent trapping licenses [and], or non-resident bear tags are issuable
16 only to non-residents and persons who have been residents for less than
17 thirty days immediately preceding the date of application.
18 b. A person under the age of fourteen years is ineligible for [a
19 junior archery license] any license which authorizes the holder to hunt
20 big game. A person under the age of sixteen years is ineligible for a
21 small and big game [license], [a combined resident hunting, fishing and
22 big game license] sportsman or resident super-sportsman, [combined]
23 non-resident [hunting, fishing, big game, bowhunting, and muzzle-load-
24 ing] super-sportsman, non-resident big game, or non-resident bowhunt-
25 ing[, non-resident] or muzzle-loading license, [a] or muzzle-loading
26 [stamp] or [a] bowhunting stamp. A person is ineligible for a hunting,
27 small and big game, junior small game, junior small and big game, big
28 game, junior archery, [combined resident hunting, fishing and big game]
29 sportsman and resident super-sportsman, [combined] non-resident [hunt-
30 ing, fishing, big game, bowhunting and muzzle-loading] super-sportsman,
31 or non-resident bowhunting or [non-resident] muzzle-loading license
32 unless [he] such person meets the requirements of subdivision [6] 3 of
33 section 11-0713 of this article.
34 c. Only the following persons are eligible for [a combined] resident
35 [hunting, fishing and big game license] licenses: (1) persons who have
36 been residents in the state for more than thirty days immediately
37 preceding the date of application for the licenses, or who are enrolled
38 in a full-time course at a college or university within the state and
39 who are in residence in the state for the school year, or who are out of
40 state or foreign exchange high school students enrolled in a full-time
41 course in a high school within the state and who are in residence in the
42 state for the school year; (2) Indian residents or members of the six
43 nations residing on any reservation wholly or partly within the state;
44 (3) members of the United States armed forces in active service,
45 stationed in this state, regardless of the place of residence at the
46 time of entry into the service; and (4) persons privileged under subdi-
47 vision 5 of section 11-0707 of this article to take wildlife, other than
48 deer and bear, as if they held hunting licenses.
49 d. Only persons who possess a [resident] small and big game license
50 [or], the big game license portion of the [combination] free [hunting-
51 big game hunting-fishing license] sportsman, or [the combined resident
52 hunting, fishing and big game] a sportsman or resident super-sportsman
53 license are eligible for a bowhunting [stamp] or [a] muzzle-loading
54 stamp.
55 e. A person under the age of twelve years is ineligible for a junior
56 [hunting] small game license.
S. 6257 13 A. 9759
1 § 22. Paragraph a of subdivision 5 of section 11-0703 of the environ-
2 mental conservation law, as amended by chapter 237 of the laws of 1993,
3 is amended to read as follows:
4 a. One-day[, three-day] and [five-day] seven-day fishing licenses
5 expire on the date stated on them.
6 § 23. Subdivision 6 of section 11-0703 of the environmental conserva-
7 tion law, as added by chapter 57 of the laws of 1993 and subparagraph 4
8 of paragraph a as renumbered by chapter 470 of the laws of 1994, is
9 amended to read as follows:
10 6. a. Except as provided in section 11-0707 and section 11-0709 of
11 this article, no person shall (1) hunt wildlife, other than deer or
12 bear, or take fish with a gun, unless such person holds and is entitled
13 to exercise the privileges of a hunting, [combination] junior small
14 game, junior small and big game, small and big game, free [hunting-big
15 game hunting-fishing license] sportsman, [a combined resident hunting,
16 fishing and big game license] sportsman or resident super-sportsman, or
17 [a combined] non-resident [hunting, fishing, big game, bowhunting and
18 muzzle-loading] super-sportsman license; (2) hunt antlerless deer in a
19 special open season therefor pursuant to subdivision 6 of section
20 11-0903 of this article unless such person holds and is entitled to
21 exercise the privileges of and has on his or her person while so hunting
22 [both] a small and big game, big game [or], junior small and big game,
23 junior archery [license or combination], free [hunting-big game hunt-
24 ing-fishing license] sportsman, [or a combined resident hunting, fishing
25 and big game license] sportsman, [or combined] resident super-sportsman,
26 non-resident [hunting, fishing, big game, bowhunting and muzzle-loading]
27 super-sportsman or non-resident bowhunting or muzzle-loading license,
28 and a special antlerless deer license; (3) take fish or frogs in the
29 manner described in subdivision 4 of section 11-0701 of this article
30 unless such person is entitled to exercise the privileges of a fishing
31 license; (4) trap wildlife unless such person holds a trapping license.
32 b. Except as provided in section 11-0707 and section 11-0709 of this
33 article, no resident shall (1) hunt wild deer or bear unless such person
34 holds and is entitled to exercise the privileges of a small and big
35 game, junior archery [or combination], junior small and big game, free
36 [hunting-big game hunting-fishing license] sportsman, [or a combined
37 resident hunting, fishing and big game] sportsman, or resident super-
38 sportsman license, and meets the requirements of [subdivisions 2 and 3
39 of section 11-0701 or subdivision 2 or 4 of section 11-0715] this arti-
40 cle; (2) hunt wild deer or bear with a longbow in a special longbow
41 season unless such person holds and is entitled to exercise the privi-
42 leges of a small and big game [license or combination], junior small and
43 big game, junior archery, free [hunting-big game hunting-fishing
44 license] sportsman, [or a combined resident hunting, fishing and big
45 game] sportsman, or resident super-sportsman license with a bowhunting
46 stamp affixed [or junior archery license] and meets the requirements of
47 [subdivisions 2 and 3 of section 11-0701 or subdivision 2 or 4 of
48 section 11-0715] this article; or (3) hunt wild deer or bear with a
49 muzzle-loading firearm in a special muzzle-loading firearm season unless
50 such person holds a small and big game, [or combination] free [hunting-
51 big game hunting-fishing license or a combined resident hunting, fishing
52 and big game] sportsman, sportsman, resident super-sportsman license
53 with a muzzle-loading stamp affixed, or junior small and big game
54 license and meets the requirements of [subdivision 2 of section 11-0701]
55 this article.
S. 6257 14 A. 9759
1 c. Except as provided in section 11-0707 and section 11-0709 of this
2 article, no non-resident shall (1) hunt wild deer unless such person
3 holds and is entitled to exercise the privileges of a big game, junior
4 archery, [a combined] junior small and big game, non-resident [hunting,
5 fishing, big game, bowhunting and muzzle-loading] super-sportsman
6 [license], or non-resident bowhunting [license] or [non-resident]
7 muzzle-loading license; (2) hunt wild deer with a longbow in a special
8 longbow season unless such person holds and is entitled to exercise the
9 privileges of a [combined] non-resident [hunting, fishing, big game,
10 bowhunting and muzzle-loading] super-sportsman, [license or a] non-resi-
11 dent bowhunting [license], or [a] junior archery license; (3) hunt wild
12 deer with a muzzle-loading firearm in a special muzzle-loading firearm
13 season unless such person holds a [combined] junior small and big game,
14 non-resident [hunting, fishing, big game bowhunting and muzzle-loading]
15 super-sportsman [license] or [a] non-resident muzzle-loading license;
16 (4) hunt wild bear unless such person holds a junior archery or junior
17 small and big game, license or a non-resident bear tag in combination
18 with one of the non-resident deer licenses listed in subparagraph 1, 2
19 or 3 of this paragraph.
20 § 24. Paragraphs a, b and d of subdivision 2 of section 11-0705 of the
21 environmental conservation law, paragraphs a and b as amended by chapter
22 57 of the laws of 1993 and paragraph d as amended by chapter 209 of the
23 laws of 1980, are amended to read as follows:
24 a. Holders of a [hunting, junior hunting, combined non-resident hunt-
25 ing, fishing, big game, bowhunting and muzzle-loading, combination free
26 hunting-big game hunting-fishing license or combined resident hunting,
27 fishing and big game] license which authorizes the holder to hunt wild-
28 life other than big game, while exercising the privileges of [a hunting]
29 such license, shall have the [hunting license] back tag issued with
30 their license attached to and displayed on the back of the outer garment
31 between the shoulders in such manner that all figures are plainly visi-
32 ble at all times.
33 b. Holders of a [big game, combination free hunting-big game hunting-
34 fishing, combined resident hunting, fishing and big game, combined non-
35 resident hunting, fishing, big game, bowhunting and muzzle-loading,
36 non-resident bowhunting or muzzle-loading or junior archery] license
37 which authorizes the holder to hunt big game, while hunting wild deer or
38 bear, shall have the [big game, combination free hunting-big game hunt-
39 ing-fishing or junior archery license] back tag issued with their [big
40 game, combination free hunting-big game hunting-fishing, combined resi-
41 dent hunting, fishing and big game, combined non-resident hunting, fish-
42 ing, big game, bowhunting and muzzle-loading, non-resident bowhunting or
43 muzzle-loading or junior archery] license so attached and displayed.
44 d. Notwithstanding the provisions of paragraphs a, b and c of this
45 subdivision, a [hunting] license holder shall not be required to display
46 such license tag in the Northern Zone or the Catskill Park.
47 § 25. Subdivision 2 of section 11-0709 of the environmental conserva-
48 tion law is amended to read as follows:
49 2. Whenever taking of destructive or menacing wildlife is authorized
50 in section 11-0523 of this article, such taking is exempt from the
51 requirement of a [hunting, big game or trapping] license which author-
52 izes the holder to hunt wildlife or trap, unless the provision authoriz-
53 ing such taking specifies that such license is required.
54 § 26. Subdivision 2 of section 11-0713 of the environmental conserva-
55 tion law, as amended by chapter 450 of the laws of 1991 and as renum-
S. 6257 15 A. 9759
1 bered by section 5 of part D of chapter 61 of the laws of 2000, is
2 amended to read as follows:
3 2. The issuing officer shall not issue a junior archery or junior
4 small and big game license to a person between the ages of fourteen and
5 sixteen or a junior [hunting] small game license to a person between the
6 ages of twelve and [sixteen, years] thirteen unless at the time of issu-
7 ance applicant is accompanied by his parent or legal guardian who shall
8 consent to the issuance of the license and shall so signify by signing
9 his name in ink across the face of it. At no time shall [hunting] such
10 licenses be issued by mail to persons between the ages of twelve and
11 sixteen years.
12 § 27. Paragraphs a, b, c and d of subdivision 3 of section 11-0713 of
13 the environmental conservation law, paragraphs a, c, d and subparagraph
14 1 of paragraph b as amended by chapter 57 of the laws of 1993, paragraph
15 b as amended by chapter 450 of the laws of 1991 and such subdivision as
16 renumbered by section 5 of part D of chapter 61 of the laws of 2000, are
17 amended to read as follows:
18 a. Subject to the provisions of paragraphs b and c of this subdivi-
19 sion, the issuing officer shall not issue a [hunting, combination free
20 hunting-big game hunting-fishing, combined resident hunting, fishing and
21 big game, big game, junior hunting, junior archery, combined non-resi-
22 dent hunting, fishing, big game, bowhunting and muzzle-loading, non-re-
23 sident bowhunting, non-resident muzzle-loading or trapping license or
24 bowhunting stamp or muzzle-loading stamp] license, stamp, tag, button,
25 permit, or permit application which authorizes the holder to hunt wild-
26 life, to any person unless the applicant presents:
27 (1) a [hunting, five-day hunting, combined hunting and fishing, combi-
28 nation free hunting-big game hunting-fishing, combined resident hunting,
29 fishing and big game, combined small game and big game, big game, junior
30 archery, junior hunting, combined non-resident hunting, fishing, big
31 game, bowhunting and muzzle-loading, non-resident bowhunting, non-resi-
32 dent muzzle-loading or trapping] license which authorizes the holder to
33 hunt wildlife issued to him previously; or
34 (2) an affidavit from a license issuing officer stating that applicant
35 previously has been issued a [hunting, five-day hunting, combined hunt-
36 ing and fishing, combination free hunting-big game hunting-fishing,
37 combined resident hunting, fishing and big game, combined small game and
38 big game, big game, trapping, junior hunting, combined non-resident
39 hunting, fishing, big game, bowhunting and muzzle-loading, non-resident
40 bowhunting, non-resident muzzle-loading or junior archery] license which
41 authorizes the holder to hunt wildlife; or
42 (3) a certificate of qualification in responsible hunting, responsible
43 bowhunting and responsible trapping practices, including safety, ethics
44 and landowner-hunter relations, issued or honored by the department,
45 pursuant to this subdivision.
46 b. (1) The issuing officer shall not issue a [bowhunting stamp or
47 non-resident bowhunting or junior archery] license or stamp which
48 authorizes the holder to exercise the privilege of hunting big game with
49 a longbow to any person unless the applicant presents a [bowhunting
50 stamp or a non-resident bowhunting or junior archery license] New York
51 state license or stamp which authorizes the holder to exercise the priv-
52 ilege of hunting big game with a longbow issued in 1980 or later, an
53 affidavit as provided in subparagraph 2 of paragraph a of this subdivi-
54 sion or a certificate of qualification in responsible bowhunting prac-
55 tices issued or honored by the department.
S. 6257 16 A. 9759
1 (2) The issuing officer shall not issue a trapping license to any
2 person unless the applicant presents a trapping license issued to him
3 previously, an affidavit as provided in subparagraph [(2)] 2 of para-
4 graph a of this subdivision or a certificate of qualification in respon-
5 sible trapping practices.
6 c. The issuing officer shall not issue a bowhunting stamp or muzzle-
7 loading stamp to any resident unless the applicant presents a small and
8 big game, [combination] free [hunting-big game hunting-fishing] sports-
9 man, or [combined resident hunting, fishing and big game] sportsman or
10 resident super-sportsman license issued to that person for the corre-
11 sponding license year.
12 d. Certifications of qualification in responsible hunting, responsible
13 bowhunting and responsible trapping practices may be made by duly quali-
14 fied and designated persons, whose fitness to give instructions in said
15 practices has been determined by an agent of the department. The depart-
16 ment may designate any person it deems qualified to act as its agent in
17 the giving of instruction and the making of certification. No charge
18 shall be made for any certificate or instruction given to a person to
19 qualify him or her to obtain a [hunting, combined resident hunting,
20 fishing and big game, big game, combined non-resident, hunting, fishing,
21 big game, bowhunting, muzzle-loading, non-resident bowhunting or
22 muzzle-loading, junior hunting, junior archery or trapping] license or
23 [bowhunting] stamp other than for certain instruction and materials
24 accredited by the department to provide preparation for final instruc-
25 tion and testing by agents of the department or for replacement educa-
26 tion certificates for a commission of one dollar to the issuing agent.
27 The department shall make available to the public courses without charge
28 which do not require additional preparation at the expense of students,
29 and may also offer optional courses which require preparatory instruc-
30 tion which may be at the expense of the student. The department may
31 make rules and regulations which in its opinion [are calculated to]
32 effectuate better the purpose of this subdivision.
33 § 28. Subdivision 4 of section 11-0713 of the environmental conserva-
34 tion law, as amended by chapter 450 of the laws of 1991 and as renum-
35 bered by section 5 of part D of chapter 61 of the laws of 2000 and para-
36 graph a as amended by chapter 470 of the laws of 1994, is amended to
37 read as follows:
38 4. a. A person who has lost or accidentally destroyed a [hunting,
39 fishing, combination free hunting-big game hunting-fishing, combined
40 resident hunting, fishing and big game, big game, junior archery, junior
41 hunting, combined non-resident hunting, fishing, big game, bowhunting
42 and muzzle-loading, non-resident bowhunting, non-resident muzzle-loading
43 or trapping] license[, bowhunting stamp or muzzle-loading] or stamp
44 authorizing the holder to hunt, fish, or trap may apply to the officer
45 who issued it for a certificate in lieu thereof. Such officer shall
46 issue a certificate stating the name and address of the applicant, the
47 type of license issued and the fee, if any, paid for it. Applications
48 and certificates furnished by the department shall be used for this
49 purpose.
50 b. A person who has lost or accidentally destroyed a button or tag
51 issued with such a license [or a hunting, junior hunting, junior arch-
52 ery, combination free hunting-big game hunting, combined hunting and big
53 game, or big game license tag] or stamp may apply to [the department]
54 any license issuing officer for a duplicate and the department shall
55 issue a duplicate button or tag when satisfied that the application is
S. 6257 17 A. 9759
1 made in good faith. A duplicate [combination] free [hunting-big game
2 hunting] sportsman tag shall be issued free of charge.
3 c. A person who has lost or accidentally destroyed a deer management
4 permit may apply to any license issuing officer for a duplicate. Such
5 officer shall issue a duplicate tag when satisfied that the application
6 is made in good faith. The officer shall also issue a certificate stat-
7 ing the name and address of the applicant, the identifying number of the
8 tag that is being issued and the fee, if any, paid for it. Applications
9 and tags furnished by the department shall be used for this purpose.
10 § 29. Subdivision 2 of section 11-0715 of the environmental conserva-
11 tion law, as amended by chapter 450 of the laws of 1991, is amended to
12 read as follows:
13 2. A resident in the state for thirty days immediately prior to the
14 date of application who has attained the age of seventy is entitled to
15 receive [a fishing license, a hunting license, a bow hunting stamp, a
16 muzzle-loading stamp, a trapping license, a special second deer permit,
17 a big game hunting license and combination hunting, big game and fishing
18 license for the license year beginning October first, nineteen hundred
19 ninety-one, and annually thereafter,] all licenses, stamps, tags,
20 buttons, and permits authorized by this title for which he or she is
21 eligible, except turkey permits, renewable each year for a [four] five
22 dollar [license] fee [and one dollar to the issuing clerk]; a member of
23 the Shinnecock tribe or the Poospatuck tribe or a member of the six
24 nations, residing on any reservation wholly or partly within the state,
25 is entitled to receive free of charge a fishing license, a [hunting]
26 small and big game license, a sportsman license, a muzzle-loading stamp,
27 [a big game license,] a trapping license, [a special second deer permit]
28 and a bow hunting stamp; and a resident who is blind is entitled to
29 receive a fishing license free of charge. For the purposes of this
30 subdivision a person is blind only if either: (a) his central visual
31 acuity does not exceed 20/200 in the better eye with correcting lenses,
32 or (b) his visual acuity is greater than 20/200 but is accompanied by a
33 limitation of the field of vision such that the widest diameter of the
34 visual field subtends an angle no greater than 20 degrees.
35 [A person entitled to a free license as provided in this subdivision
36 shall be issued a combination free hunting-big game hunting-fishing
37 license renewable each year. Those free licensees not qualified to
38 receive a hunting license shall have stamped across the face thereof
39 "FISHING ONLY", and the issuing clerk shall destroy the accompanying
40 back tag for such license.]
41 A resident in the state for a period of thirty days immediately prior
42 to the date of application who has attained the age of sixty-five is
43 entitled to receive a [combined hunting, fishing and big game] sportsman
44 license at the cost of [four] five dollars as a license fee [and one
45 dollar to the issuing clerk].
46 § 30. Subdivision 3 of section 11-0715 of the environmental conserva-
47 tion law is REPEALED and a new subdivision 3 is added to read as
48 follows:
49 3. Each applicant for a license, permit or stamp shall pay to the
50 issuing officer a fee, according to the license, permit or stamp issued
51 and the residence or other qualification of the applicant.
52 a. In the case of persons who have been residents of the state for
53 more than thirty days immediately preceding the date of application or
54 who are enrolled in a full-time course at a college or university within
55 the state and who are in residence in the state for the school year,
56 Indians residing off reservations in the state and members of the United
S. 6257 18 A. 9759
1 States armed forces in active service stationed in this state regardless
2 of place of residence at the time of entry into service:
3 License Fee
4 (1) Super-sportsman $68.00
5 (2) Sportsman $37.00
6 (3) Small and big game $19.00
7 (4) Fishing $19.00
8 (5) Trapping $16.00
9 (6) Hunting $16.00
10 (7) Junior trapping $ 6.00
11 (8) Muzzle-loading stamp $16.00
12 (9) Bowhunting stamp $16.00
13 (10) Turkey permit $ 5.00
14 (11) Seven-day fishing $12.00
15 (12) Conservation legacy $76.00
16 b. In the case of a non-resident and persons resident in the state for
17 less than thirty days, other than persons who are enrolled in a full-
18 time course at a college or university within the state and who are in
19 residence in the state for the school year and those members of the
20 United States armed forces as to whom fees are specified in paragraph a
21 of this subdivision:
22 License Fee
23 (1) Big game $110.00
24 (2) Hunting $ 55.00
25 (3) Fishing $ 40.00
26 (4) Seven-day fishing $ 25.00
27 (5) Trapping $255.00
28 (6) Super-sportsman $250.00
29 (7) Bowhunting $110.00
30 (8) Muzzle-loading $110.00
31 (9) Bear tag $ 30.00
32 (10) Turkey permit $ 30.00
33 c. In all cases:
34 (1) Certificates in lieu of lost license or stamp $ 5.00
35 (2) Duplicate for lost or destroyed permit, button or tag
36 $10.00
37 (3) Junior small game license $ 5.00
38 (4) Junior small and big game license $ 9.00
39 (5) Junior archery license $ 9.00
40 (6) One-day fishing license $15.00
41 (7) Conservation patron license $12.00
42 § 31. Subdivision 4 of section 11-0715 of the environmental conserva-
43 tion law, as amended by chapter 450 of the laws of 1991, is amended to
44 read as follows:
45 4. A person resident in the state for at least thirty days immediately
46 prior to the date of application, who has been honorably discharged from
47 service in the armed forces of the United States and certified as having
48 a forty [per cent] percent or greater service-connected disability is
49 entitled to receive [a combination hunting-big game hunting-fishing
50 license, a bow hunting stamp, a muzzle loading stamp and a trapping
51 license] all licenses, stamps, tags, buttons, and permits authorized by
52 this title for which he or she is eligible, except turkey permits,
53 renewable each year for a [four] five dollar fee [and one dollar to the
54 issuing clerk].
55 § 32. Section 11-0715 of the environmental conservation law is amended
56 by adding a new subdivision 6 to read as follows:
S. 6257 19 A. 9759
1 6. a. License issuing officers may retain 1.1 percent of the gross
2 proceeds from the sale of the following:
3 (1) non-resident hunting license
4 (2) non-resident big game license
5 (3) non-resident trapping license
6 (4) bear tag
7 (5) non-resident bowhunting license
8 (6) non-resident muzzle-loading license
9 (7) non-resident super-sportsman license
10 (8) non-resident turkey permit
11 (9) all lifetime licenses listed in section 11-0702 of this title.
12 b. License issuing officers may retain 5.5 percent of the gross
13 proceeds from sale of all other license, stamps, certificates and
14 permits, including any application fees associated with such licenses,
15 stamps, certificates and permits.
16 § 33. The opening paragraph of paragraph a of subdivision 2 of section
17 11-0719 of the environmental conservation law, as amended by chapter 119
18 of the laws of 1999, is amended to read as follows:
19 The department may revoke the [hunting, big game, junior archery or
20 trapping license or the hunting and big game hunting portions of the
21 combination free hunting-big game hunting-fishing license, or any or all
22 of them, or any stamp or tag, and] licenses, tags, and stamps which
23 authorize the holder to hunt and/or trap wildlife, and may deny the
24 privilege of obtaining such [license or such portions of the combination
25 free hunting-big game hunting-fishing license and of hunting or of trap-
26 ping anywhere in the state,] licenses, tags, and stamps and may deny the
27 privileges of hunting and/or trapping with or without a license[,].
28 § 34. Subdivision 3 of section 11-0719 of the environmental conserva-
29 tion law, as amended by chapter 158 of the laws of 1999, is amended to
30 read as follows:
31 3. A junior [hunting] small game license issued to a person who is
32 between the ages of twelve and [sixteen] fourteen years or a junior
33 archery or junior small and big game license issued to a person who is
34 between the ages of fourteen and sixteen years may be revoked by the
35 department upon proof satisfactory to the department that such person,
36 while under the age of sixteen, has engaged in hunting wildlife with a
37 gun or longbow, in circumstances in which a license is required, while
38 not accompanied by his parent, guardian or other adult as provided in
39 either subdivision 1 or subdivision 3 of section 11-0929 of this arti-
40 cle. If such license or privilege is revoked the department shall fix
41 the period of such revocation, which is not to exceed four years. The
42 department may require that such person successfully complete a depart-
43 ment sponsored course and obtain a certificate of qualification in
44 responsible hunting or responsible bowhunting practices before being
45 issued another hunting or bowhunting license.
46 § 35. Paragraph b of subdivision 7 of section 11-0903 of the environ-
47 mental conservation law, as amended by chapter 57 of the laws of 1993,
48 is amended to read as follows:
49 b. Deer may be taken only by holders of [big game or combined resident
50 hunting, fishing and big game or combination free hunting-big game hunt-
51 ing-fishing or combined non-resident hunting, fishing, big game,
52 bowhunting and muzzle-loading or non-resident bowhunting and non-resi-
53 dent muzzle-loading licenses] a license authorizing the taking of big
54 game who have also obtained a special permit provided by the department
55 and issued by the town clerk of each town where such season is fixed;
S. 6257 20 A. 9759
1 § 36. Subparagraph 1 of paragraph e of subdivision 9 of section
2 11-0903 of the environmental conservation law, as amended by chapter 911
3 of the laws of 1990, is amended to read as follows:
4 (1) a requirement that hunting deer during such special season shall
5 be only by holders of both a [big game] license authorizing the taking
6 of big game and a special permit for the area where hunting is permit-
7 ted,
8 § 37. Paragraph a of subdivision 1 of section 11-0907 of the environ-
9 mental conservation law, as amended by chapter 330 of the laws of 1994,
10 is amended to read as follows:
11 a. Wild deer without antlers or having antlers measuring less than
12 three inches in length shall not be taken unless it is taken (1) by long
13 bow in a special long bow season established in subdivision 3 of this
14 section, or (2) by muzzle-loading firearm in a special muzzle-loading
15 firearm season established in subdivision 8 of this section, or (3) by
16 long bow in Westchester and Suffolk Counties in a year in which a regu-
17 lar season for deer of either sex is established for such counties, or
18 (4) in a special open season for deer of either sex fixed by [order]
19 regulation pursuant to subdivision 5 or 7 of section 11-0903 of this
20 title, or (5) pursuant to a special antlerless deer license in a special
21 open season for antlerless deer in a tract within a Wilderness Hunting
22 Area fixed by regulation pursuant to subdivision 6 of section 11-0903 of
23 this title, or (6) pursuant to a deer management permit by a person
24 eligible to take such deer pursuant thereto as provided in section
25 11-0913 of this title, or (7) pursuant to a permit issued to an eligible
26 non-ambulatory person, pursuant to subdivision [two] 2 of section
27 11-0931 of this title, while in possession of a valid [big game] license
28 issued by the department which authorizes the holder to hunt big game.
29 Nothing in this subparagraph shall be construed to limit the power of
30 the department to designate by regulation an area or areas of the state
31 consisting of a county or part of a county where such season shall apply
32 and whether the number of such special permits shall be limited.
33 § 38. Paragraph c of subdivision 1 of section 11-0907 of the environ-
34 mental conservation law, as amended by chapter 600 of the laws of 1993,
35 is amended to read as follows:
36 c. The limit for wild deer is one deer per person in a license year
37 except that (1) a person entitled to exercise the privileges of a
38 special antlerless deer license may take an antlerless deer while hunt-
39 ing pursuant to such license in addition to the limit of one deer in a
40 license year otherwise applicable, [and] (2) a person who is a member of
41 a hunting group holding a deer management permit or permits issued
42 pursuant to section 11-0913 of this article may take additional deer
43 while hunting in accordance with the conditions of the permit or
44 permits, [and] (3) the holder of a bowhunting license or stamp or a
45 muzzle-loading license or stamp may take up to two additional deer,
46 pursuant to regulations promulgated by the department, and (4) an eligi-
47 ble non-ambulatory person, pursuant to subdivision [two] 2 of section
48 11-0931 of this [chapter] article may take a deer of either sex in any
49 [deer] wildlife management unit area where deer management permits have
50 been issued by the department, while in possession of a valid [big game]
51 license [and a special big game permit, issued by the department, for a
52 fee of five dollars] which authorizes the holder to hunt big game.
53 Nothing contained in this section shall be construed to limit the power
54 of the department to designate by regulation an area or areas of the
55 state consisting of a county or part of a county where such season shall
56 apply and whether the number of such special permits shall be limited.
S. 6257 21 A. 9759
1 § 39. Paragraph c of subdivision 1 of section 11-0907 of the environ-
2 mental conservation law, as amended by chapter 911 of the laws of 1990
3 and subparagraph 2 as amended by chapter 119 of the laws of 1991, is
4 amended to read as follows:
5 c. The limit for wild deer and bear is one deer and one bear per
6 person in a license year except that (1) a person entitled to exercise
7 the privileges of a special antlerless deer license may take an antler-
8 less deer while hunting pursuant to such license in addition to the
9 limit of one deer in a license year otherwise applicable, [and] (2) a
10 person who is a member of a hunting group holding a deer management
11 permit or permits issued pursuant to section 11-0913 of this article may
12 take additional deer while hunting in accordance with the conditions of
13 the permit or permits, [and] (3) the holder of a bowhunting license or
14 stamp or a muzzle-loading license or stamp may take up to two additional
15 deer, pursuant to regulations promulgated by the department, and (4) an
16 eligible non-ambulatory person, pursuant to subdivision [two] 2 of
17 section 11-0931 of this [chapter] article may take a deer of either sex
18 in any [deer] wildlife management unit area where deer management
19 permits have been issued by the department, while in possession of a
20 valid [big game] license [and a special big game permit, issued by the
21 department, for a fee of five dollars] which authorizes the holder to
22 hunt big game. Nothing contained in this section shall be construed to
23 limit the power of the department to designate by regulation an area or
24 areas of the state consisting of a county or part of a county where such
25 season shall apply and whether the number of such special permits shall
26 be limited.
27 § 40. Paragraphs d and e of subdivision 1 of section 11-0907 of the
28 environmental conservation law are REPEALED and two new paragraphs d and
29 e are added to read as follows:
30 d. (1) A person who holds licenses or stamps authorizing the holder
31 to hunt deer during a special archery season and the regular open season
32 and who has taken a deer by longbow in a special archery season and who
33 has not taken a deer in a regular open season may, in addition to the
34 limit of one deer in a license year otherwise applicable, take during
35 the same license year additional deer as specified by department regu-
36 lation in a special archery season following the close of the regular
37 open deer season.
38 (2) A person who holds licenses or stamps authorizing the holder to
39 hunt deer during a special archery season and the regular open season
40 and who has taken a deer by longbow in the regular open season for deer
41 in Westchester or Suffolk counties may, in addition to the limit of one
42 deer in a license year otherwise applicable, take during the same
43 license year additional deer as specified by department regulation
44 during such Westchester or Suffolk county regular open deer season.
45 e. A person who holds licenses or stamps authorizing the holder to
46 hunt deer during a special muzzle-loading season and the regular open
47 season and who has taken a deer by muzzle-loading firearm in a muzzle-
48 loading season and who has not taken a deer in a regular open season
49 may, in addition to the limit of one deer in a license year otherwise
50 applicable, take during the same year additional deer as specified by
51 department regulation in a special muzzle-loading season following the
52 close of the regular deer season.
53 § 41. Paragraph a of subdivision 3 of section 11-0907 of the environ-
54 mental conservation law, as amended by chapter 600 of the laws of 1993,
55 is amended to read as follows:
S. 6257 22 A. 9759
1 a. In every area identified in column one of the table set forth in
2 subdivision 2 of this section, except Westchester and Suffolk Counties
3 in which a regular open season for taking deer by firearms is estab-
4 lished and effective, a special open season is established for taking
5 deer of either sex, by the use of a long bow only by holders of a [big
6 game, combined small game and big game, combined hunting, fishing and
7 big game] small and big game, sportsman, or [combination] free [hunt-
8 ing-big game hunting-fishing] sportsman license to which a valid
9 bowhunting stamp is affixed or to holders of a junior archery, resident
10 or non-resident super-sportsman, or non-resident bowhunting license.
11 § 42. Paragraph a of subdivision 3 of section 11-0907 of the environ-
12 mental conservation law, as amended by chapter 694 of the laws of 1980,
13 is amended to read as follows:
14 a. In every area identified in column one of the table set forth in
15 subdivision 2 of this section, except Westchester and Suffolk Counties
16 in which a regular open season for taking deer by firearms is estab-
17 lished and effective, a special open season is established for taking
18 deer of either sex, and bear, by the use of a long bow only by holders
19 of a [big game, combined small game and big game, combined hunting,
20 fishing and big game] small and big game, sportsman, or [combination]
21 free [hunting-big game hunting-fishing] sportsman license to which a
22 valid bowhunting stamp is affixed or to holders of a junior archery,
23 resident or non-resident super-sportsman, or non-resident bowhunting
24 license.
25 § 43. Paragraph a of subdivision 5 of section 11-0907 of the environ-
26 mental conservation law, as amended by chapter 768 of the laws of 1978,
27 is amended to read as follows:
28 a. In Monroe County, the area bounded and described as follows: On the
29 west by Route 261 (Manitou Road) beginning at Manitou Beach on Lake
30 Ontario in the town of Greece and continuing southerly along such road
31 to its intersection with the Barge Canal, thence easterly along such
32 canal to East Avenue in the village of Pittsford, thence northeasterly
33 along East Avenue to Allen Creek in the town of Brighton, thence north-
34 erly along Allen Creek to Irondequoit Creek, thence northerly along
35 Irondequoit Creek to Irondequoit Bay, thence northerly along the easter-
36 ly shore of Irondequoit Bay to Lake Ontario; except that deer of either
37 sex may be taken during the regular and special deer hunting seasons
38 provided for in this title by the use of a [long bow] longbow by holders
39 of [a big game license to which a valid bow hunting stamp is affixed
40 during the regular and special deer hunting seasons provided for in this
41 title] licenses which authorize the holder to hunt deer during a special
42 archery season and provided further that this exception permitting the
43 taking of deer by a [long bow] longbow shall not apply within an area in
44 the town of Greece bounded and described as follows: On the west by Long
45 Pond Road beginning at Latta Road and continuing southerly along such
46 road to its intersection with Maiden Lane, thence easterly along Maiden
47 Lane to its intersection with Mt. Read Blvd., thence northerly along Mt.
48 Read Blvd. to its intersection with Latta Road, thence westerly along
49 Latta Road to its intersection with Long Pond Road at the point of
50 beginning.
51 § 44. Paragraph a of subdivision 7 of section 11-0907 of the environ-
52 mental conservation law, as amended by chapter 272 of the laws of 1983,
53 is amended to read as follows:
54 a. The area described in this subdivision is closed to the taking of
55 deer and bear by firearms, but shall be open for taking deer by the use
56 of a [long bow] longbow only by holders of [a big game, combined small
S. 6257 23 A. 9759
1 game and big game, combined hunting, fishing and big game or combination
2 free hunting-big game hunting-fishing license to which a valid bowhunt-
3 ing stamp is affixed or a junior archery license,] licenses which
4 authorize the holders to hunt deer during a special archery season as
5 follows: during the special deer season stated in subdivision [three] 3
6 of this section and during the regular season stated in subdivision
7 [two] 2 of this section, deer of either sex may be taken.
8 § 45. Paragraph a of subdivision 8 of section 11-0907 of the environ-
9 mental conservation law, as amended by chapter 241 of the laws of 1997,
10 is amended to read as follows:
11 a. In every area identified in column one of the table set forth in
12 subdivision 2 of this section, except those areas restricted to special
13 seasons for taking deer by longbow only, special open seasons may be
14 established by regulation for taking deer and/or bear, by the use of
15 muzzle-loading firearms, of not less than .44 caliber shooting a single
16 projectile, by the holders of a small and big game, [combined small game
17 and big game, combined hunting, fishing and big game or] sportsman or
18 [combination] free [hunting-big game hunting-fishing] sportsman license
19 to which a valid muzzle-loading stamp is affixed or to holders of a
20 junior small and big game, resident or non-resident super-sportsman, or
21 non-resident muzzle-loading license.
22 § 46. Paragraph b of subdivision 1 of section 11-0913 of the environ-
23 mental conservation law, as amended by chapter 401 of the laws of 1985,
24 is amended to read as follows:
25 b. In the issuance of permits, the department may give preference to
26 [state residents] resident license holders and may give preference[, to
27 the extent of not more than 50 per cent of the permits to be issued for
28 a specified area,] to disabled veterans having 40 percent or greater
29 disability, and to the applications of groups which include a person or
30 the spouse of a person, provided that such spouse lives in the same
31 household, who owns at least 50 acres of land in one parcel in the spec-
32 ified area [and which are postmarked not later than midnight of the last
33 day of the period prescribed by department order for making applica-
34 tion].
35 § 47. Paragraph d of subdivision 2 of section 11-0913 is REPEALED and
36 paragraphs e, f and g are relettered paragraphs d, e and f.
37 § 48. Subdivisions 3, 4 and 7 of section 11-0913 of the environmental
38 conservation law, as amended by chapter 57 of the laws of 1993, are
39 amended to read as follows:
40 3. Each member of a group issued a permit pursuant to this section
41 shall possess a [big game, combined resident hunting, fishing and big
42 game, combination free hunting-big game hunting-fishing license or
43 combined non-resident hunting, fishing, big game, bowhunting and
44 muzzle-loading] license which authorizes the holder to hunt deer during
45 the regular open season before the permit may be validated.
46 4. During a license year, no person shall use more than one [big game,
47 combined resident hunting, fishing and big game, combination free hunt-
48 ing-big game hunting-fishing license or combined non-resident hunting,
49 fishing, big game, bowhunting and muzzle-loading] license which author-
50 izes the holder to hunt deer during the regular open season in making
51 application for a deer management permit.
52 7. The department shall charge and receive a fee of ten dollars for
53 the application and the processing of such permit or permits. Appli-
54 cants who are successful in the computerized selection shall receive the
55 permit or permits free of any additional charge. The application fee
56 shall be non-refundable. The department may waive the application fee
S. 6257 24 A. 9759
1 for holders of a [combined resident hunting, fishing and big game]
2 junior archery, junior small and big game, sportsman, resident super-
3 sportsman conservation legacy license or non-resident super-sportsman
4 license [or a combined non-resident hunting, fishing, big game, bowhunt-
5 ing and muzzle-loading license].
6 § 49. Section 11-0929 of the environmental conservation law, as
7 amended by chapter 694 of the laws of 1980, subdivisions 1 and 3 as
8 amended by chapter 450 of the laws of 1991, is amended to read as
9 follows:
10 § 11-0929. Hunting by minors.
11 1. A licensee between the ages of twelve and fourteen years shall not
12 hunt wildlife with a gun or a longbow unless he or she is accompanied by
13 his or her parent or legal guardian or relative over the age of twenty-
14 one designated in writing by his or her parent who holds a [hunting, or
15 combined hunting, fishing and big game or combination free hunting-big
16 game hunting-fishing] license which authorizes the holder to hunt wild-
17 life; a licensee between the ages of fourteen and sixteen shall not hunt
18 wildlife with a gun or longbow unless he or she is accompanied by his or
19 her parent holding such license, or a person over eighteen years of age,
20 designated in writing by his or her parent or legal guardian, holding
21 such license.
22 2. A licensee under the age of eighteen years who has not previously
23 had a [big game, combined small game and big game or combined hunting,
24 fishing and big game] license which authorizes the holder to hunt big
25 game issued to him or her and engaged in hunting pursuant to it shall
26 not hunt deer or bear unless he or she is accompanied by his parent or
27 legal guardian, or by a person over eighteen years of age who has had at
28 least one year's experience in hunting deer or bear, and such accompany-
29 ing parent, guardian or person holds a [big game, combined small game
30 and big game, combined hunting, fishing and big game or combination free
31 hunting-big game hunting-fishing] license which authorizes the holder to
32 hunt big game.
33 3. A junior archery licensee, between the ages of fourteen and sixteen
34 years, shall not hunt deer or bear unless he or she is accompanied by
35 his or her parent or legal guardian, or by a person over eighteen years
36 of age who has had at least one year's experience in hunting deer or
37 bear by longbow, and such accompanying parent, guardian or person holds
38 a [big game, combined hunting, fishing and big game or combination free
39 hunting-big game hunting-fishing license with a bowhunting stamp
40 affixed] license which authorizes the holder to hunt big game during a
41 special archery season and the regular open season.
42 § 50. Subdivision 2 of section 11-0931 of the environmental conserva-
43 tion law is amended to read as follows:
44 2. No firearm except a pistol or revolver shall be carried or
45 possessed in or on a motor vehicle unless it is unloaded in both the
46 chamber and the magazine, except that a loaded firearm which may be
47 legally used for taking migratory game birds may be carried or possessed
48 in a motorboat while being legally used in hunting migratory game birds,
49 and no person except a law enforcement officer in the performance of his
50 official duties shall, while in or on a motor vehicle, use a jacklight,
51 spotlight or other artificial light upon lands inhabited by deer if he
52 is in possession or is accompanied by a person who is in possession, at
53 the time of such use, of a longbow, crossbow or a firearm of any kind
54 except a pistol or revolver, unless such longbow is unstrung or such
55 firearm is taken down or securely fastened in a case or locked in the
56 trunk of the vehicle. For purposes of this subdivision, motor vehicle
S. 6257 25 A. 9759
1 shall mean every vehicle or other device operated by any power other
2 than muscle power, and which shall include but not be limited to automo-
3 biles, trucks, motorcycles, tractors, trailers and motorboats, snowmo-
4 biles and snowtravelers, whether operated on or off public highways.
5 Notwithstanding the provisions of this subdivision, the department may
6 issue a permit to any person who is non-ambulatory, except with the use
7 of a mechanized aid, to possess a loaded firearm in or on a motor vehi-
8 cle as defined in this section, subject to such restrictions as the
9 department may deem necessary in the interest of public safety, and for
10 a fee of five dollars. Nothing in this section permits the possession
11 of a pistol or a revolver contrary to the [Penal Law] penal law.
12 § 51. Section 11-1003 of the environmental conservation law, as
13 amended by chapter 325 of the laws of 1989, is amended to read as
14 follows:
15 § 11-1003. Falconry license.
16 Any resident of this state may be issued a falconry license. The
17 department shall prescribe and furnish forms for application for such
18 license. The fee for the license shall be twenty dollars. Falconry
19 licenses shall expire on December 31 every second year and shall be
20 renewable at the discretion of the department. A falconry license shall
21 authorize the licensee to obtain, buy, sell, barter, possess and train
22 raptors for falconry and to engage in falconry, provided that no game
23 shall be taken or killed except during an open season therefor, and
24 further provided that such licensee shall also possess a [hunting,
25 combined hunting and fishing, combined small game and big game, combined
26 hunting, fishing and big game or combination free hunting-big game hunt-
27 ing-fishing] license pursuant to this chapter which authorizes the hold-
28 er to hunt wildlife. Any non-resident, who legally possesses a raptor
29 where he or she resides and who may legally engage in falconry where he
30 or she resides, may engage in falconry in New York without a falconry
31 license provided he or she possesses a valid non-resident hunting [or
32 three-day hunting] license.
33 § 52. Subdivision 4 of section 11-1201 of the environmental conserva-
34 tion law, as added by chapter 726 of the laws of 1977, is amended to
35 read as follows:
36 4. "License to hunt", "stamp to hunt", or "permit to hunt" means any
37 license, permit, or other privilege granted [within the meaning of
38 subdivisions one, two-a, two-b, three, five, or eight of] pursuant to
39 section 11-0701 of this [chapter] article which authorizes the holder to
40 hunt wildlife.
41 § 53. Subdivision 3 of section 71-0923 of the environmental conserva-
42 tion law, as amended by chapter 694 of the laws of 1980, is amended to
43 read as follows:
44 3. A violation of subdivision 2 of section 11-0705 of this chapter
45 shall be punishable by forfeiture of [the hunting, three-day hunting,
46 combined hunting and fishing, combined small game and big game or
47 combined hunting, fishing and big game or combination free hunting-big
48 game hunting-fishing license, or of the big game license, as the case
49 may be, and of the hunting license tag or big game license tag] licenses
50 and tags issued pursuant to this chapter which authorizes the holder to
51 hunt wildlife and by a fine of not more than twenty-five dollars.
52 § 54. Section 83 of the state finance law is amended by adding a new
53 subdivision (h) to read as follows:
54 (h) All moneys, revenues and interest thereon received as a result of
55 the application of subdivision seventeen of section 11-0305 of the envi-
56 ronmental conservation law authorizing the issuance and sale of volun-
S. 6257 26 A. 9759
1 tary habitat stamps, other than the amount retained by the issuing agent
2 or officer, shall be deposited in a special account within the conserva-
3 tion fund to be known as the habitat account. All of such moneys, reven-
4 ues and interest shall be available to the department of environmental
5 conservation, pursuant to appropriation, exclusively for fish and wild-
6 life habitat management and the improvement and development of public
7 access for hunting, fishing, trapping and other fish and wildlife-relat-
8 ed recreation and study.
9 § 55. This act shall take effect on October 1, 2002, provided that any
10 regulations necessary for the timely implementation of this act on its
11 effective date may be promulgated before such date, and further provided
12 that the amendments to paragraph c of subdivision 1 of section 11-0907
13 of the environmental conservation law made by section thirty-eight of
14 this act shall be subject to the expiration and reversion of such para-
15 graph pursuant to section 13 of chapter 600 of the laws of 1993, as
16 amended, when upon such date the provisions of section thirty-nine of
17 this act shall take effect, provided that the amendments to paragraph a
18 of subdivision 3 of section 11-0907 of the environmental conservation
19 law made by section forty-one of this act shall be subject to the expi-
20 ration and reversion of such paragraph pursuant to section 13 of chapter
21 600 of the laws of 1993, as amended, when upon such date the provisions
22 of section forty-two of this act shall take effect.
23 PART H
24 Section 1. Section 21.07 of the parks, recreation and historic preser-
25 vation law, as amended by chapter 773 of the laws of 1992, is amended to
26 read as follows:
27 § 21.07 Fee for snowmobile trail development and maintenance. A fee
28 of [ten] twenty dollars is hereby imposed upon the resident, and [twen-
29 ty] thirty dollars upon the nonresident, owner of a snowmobile for the
30 snowmobile trail development and maintenance fund to be paid to the
31 commissioner of motor vehicles upon the registration thereof in addition
32 to the registration fee required by the vehicle and traffic law, the
33 payment of which fee hereby imposed shall be a condition precedent to
34 such individual resident, individual nonresident or dealer registration.
35 § 2. Subdivisions 2 and 3 of section 27.17 of the parks, recreation
36 and historic preservation law, as amended by chapter 88 of the laws of
37 1988, are amended to read as follows:
38 2. Notwithstanding any other provision of law to the contrary, the
39 commissioner shall establish a plan for the development and maintenance
40 of snowmobile trails and facilities in the various counties or where
41 applicable, cities, towns or villages of the state as may be appropriate
42 and shall take whatever action he or she deems necessary to foster and
43 promote the safe utilization of such trails and facilities; for these
44 purposes, he or she may draw upon the moneys deposited in the snowmobile
45 trail development and maintenance fund for expenses, including personal
46 services, as approved by the comptroller and is hereby authorized to
47 assign [two] three employees of his or her office to carry out such
48 responsibilities and to pay their salaries, benefits and expenses out of
49 such fund.
50 3. Every county or, where applicable, any city, town or village within
51 such county, shall be eligible for a grant for the development and main-
52 tenance of a system of snowmobile trails and a program with relation
53 thereto within its boundaries. Such grants shall be made by the commis-
54 sioner and may constitute up to one hundred percent of the cost of such
S. 6257 27 A. 9759
1 program including expenditures incurred for signs and markers of snowmo-
2 bile trails. Any county or, where applicable, any city, town or village
3 within such county, applying for such grant shall submit to the commis-
4 sioner by September first of each year an estimate of such expenditures
5 for the current fiscal year, in such form and containing such informa-
6 tion as the commissioner may require. No city, town or village may
7 apply for such grant where the county within which it is contained has
8 submitted an application for the same fiscal year. For the purpose of
9 this section, "fiscal year" shall mean the period from April first
10 through March thirty-first. The commissioner shall review all such
11 applications and shall determine the amount of state aid to be allocated
12 to each county or, where applicable, any city, town or village within
13 such county in accordance with the provisions of subdivision five of
14 this section. Of the amount the commissioner determines each county or,
15 where applicable, any city, town or village within such county is eligi-
16 ble to receive, seventy percent shall be made available for distribution
17 by November first and thirty percent for distribution upon demonstration
18 of completion, submitted by June first, of the program.
19 § 3. Subdivisions 4-a and 11 of section 2222 of the vehicle and traf-
20 fic law, subdivision 4-a as amended by chapter 337 of the laws of 1997
21 and subdivision 11 as amended by chapter 773 of the laws of 1992, are
22 amended to read as follows:
23 4-a. Additional fee. In addition to the other fees provided for in
24 paragraphs (a), (b) and (c) of subdivision four of this section the
25 commissioner shall, upon application in such cases for the registration
26 of a snowmobile or the renewal thereof, collect the annual [ten] twenty
27 dollar fee for residents and [twenty] thirty dollar fee for nonresidents
28 imposed by section 21.07 of the parks, recreation and historic preserva-
29 tion law. This fee shall also be collected from dealers at the time of
30 original registration and at the time of each [biennial] renewal.
31 11. Exemption. No registrations shall be required for the following
32 described snowmobiles:
33 (a) Snowmobiles owned and used by the United States.
34 (b) Snowmobiles covered by a valid registration or license of another
35 state, province or country, as provided in subdivision twelve of this
36 section.
37 (c) Snowmobiles operated on lands owned by the owner of such snowmo-
38 bile, or on lands to which such owner has a contractual right other than
39 as a member of a club or association provided (i) the snowmobile is not
40 operated elsewhere within the state, and (ii) no consideration, either
41 direct or indirect, is paid to the owner of the snowmobile with respect
42 to such operation.
43 § 4. Subdivision 1 of section 2230 of the vehicle and traffic law, as
44 added by chapter 839 of the laws of 1973, is amended to read as follows:
45 1. The commissioner may suspend or revoke a registration issued pursu-
46 ant to the provisions of this article, upon satisfactory proof of a
47 violation of any provision of this article, or of the parks [and],
48 recreation and historic preservation law at the request of the commis-
49 sioner of parks [and], recreation and historic preservation, or of any
50 rule, regulation, order, local law or ordinance adopted or promulgated
51 pursuant thereto. Such suspension or revocation shall be issued only
52 after a hearing unless such a hearing is waived by the registrant. Upon
53 said suspension or revocation, all rights and privileges accruing to
54 such registrant shall terminate.
55 § 5. This act shall take effect on the ninetieth day after it shall
56 have become a law.
S. 6257 28 A. 9759
1 PART I
2 Section 1. Paragraphs (b), (c) and (d) of subdivision 6 of section
3 92-s of the state finance law, paragraphs (b) and (c) as amended by
4 chapter 432 of the laws of 1997 and paragraph (d) as amended by section
5 13 of part E of chapter 61 of the laws of 2000, are amended to read as
6 follows:
7 (b) Moneys from the solid waste account shall be available, pursuant
8 to appropriation and upon certificate of approval of availability by the
9 director of the budget, for any non-hazardous municipal landfill closure
10 project; municipal waste reduction or recycling project, as defined in
11 article fifty-four of the environmental conservation law; for the
12 purposes of section two hundred sixty-one and section two hundred
13 sixty-four of the economic development law; any project for the develop-
14 ment, updating or revision of local solid waste management plans pursu-
15 ant to sections 27-0107 and 27-0109 of the environmental conservation
16 law; [and] for the development of the pesticide sales and use data base
17 in conjunction with Cornell University pursuant to title twelve of arti-
18 cle thirty-three of the environmental conservation law; and for any
19 projects to assess and recover any natural resource damages to the
20 Hudson River.
21 (c) Moneys from the parks, recreation and historic preservation
22 account shall be available, pursuant to appropriation, for any municipal
23 park project, historic preservation project, urban cultural park
24 project, waterfront revitalization program, coastal rehabilitation
25 project, state parks and lands infrastructure and stewardship project,
26 Hudson River Park project consistent with chapter five hundred ninety-
27 two of the laws of nineteen hundred ninety-eight, and historic barn
28 projects.
29 (d) Moneys from the open space account shall be available, pursuant to
30 appropriation, (i) for any open space land conservation project[,]; (ii)
31 for bio-diversity stewardship and research pursuant to chapter five
32 hundred fifty-four of the laws of nineteen hundred ninety-three[,];
33 (iii) for the purposes of agricultural and farmland protection activ-
34 ities as authorized by article twenty-five-AAA of the agriculture and
35 markets law[,]; (iv) for non-point source abatement and control projects
36 pursuant to section 17-1409 of the environmental conservation law and
37 section eleven-b of the soil and water conservation districts law[,];
38 (v) for soil and water conservation district activities authorized for
39 reimbursement pursuant to section eleven-a of the soil and water conser-
40 vation districts law; (vi) for projects to implement the Hudson River
41 estuary management plan prepared pursuant to section 11-0306 of the
42 environmental conservation law; (vii) for Long Island Central Pine
43 Barrens area planning or Long Island south shore estuary reserve plan-
44 ning pursuant to title thirteen of article fifty-four of the environ-
45 mental conservation law[, and]; (viii) for operation and management of
46 the Albany Pine Bush preserve commission pursuant to subdivision two of
47 section 54-0303 of the environmental conservation law; and (ix) for
48 Peconic Bay projects.
49 § 2. Article 54 of the environmental conservation law is amended by
50 adding a new title 14 to read as follows:
51 TITLE 14
52 STATE PARKS AND LANDS INFRASTRUCTURE AND STEWARDSHIP PROJECTS
53 Section 54-1401. Definitions.
54 54-1402. State parks and lands infrastructure and stewardship
55 projects.
S. 6257 29 A. 9759
1 § 54-1401. Definitions.
2 As used in this title:
3 1. "Stewardship" shall mean the care of the lands, facilities and
4 natural and cultural resources under the jurisdiction of the department
5 and the office of parks, recreation and historic preservation on behalf
6 of the public, and the provision of public access thereto.
7 2. "State parks and lands infrastructure" shall mean state park
8 resources, recreational facilities and historic sites and any other
9 property, real or personal, under the jurisdiction of the department and
10 the office of parks, recreation and historic preservation, together with
11 machinery, equipment, furnishings and fixtures relating thereto or used
12 in connection therewith.
13 3. "State parks and lands infrastructure and stewardship projects"
14 shall mean all costs incurred or to be incurred by or on behalf of the
15 department and the office of parks, recreation and historic preservation
16 for the purpose of preserving, improving or rehabilitating state parks
17 and lands infrastructure. Such projects may include, but are not limited
18 to: natural resource and habitat restoration and protection such as the
19 protection and management of biological, land, geological, archeological
20 and other natural resources, survey and inventory, scientific research,
21 planning and analysis, and development of unit management plans;
22 projects to improve public access including access opportunities for
23 people with disabilities by developing, restoring, reconstructing, reha-
24 bilitating and maintaining physical facilities, including but not limit-
25 ed to buildings, roads, bridges and waste disposal systems; projects to
26 develop, maintain, or improve marine resource facilities, water access
27 facilities, recreational trails, campgrounds, day use areas, fish hatch-
28 eries, public beach facilities, visitor centers, interpretive and
29 conservation education facilities; and historic preservation projects to
30 improve, restore or rehabilitate property listed on the state or
31 national registers of historic places to protect the historic, cultural
32 or architectural significance thereof.
33 § 54-1402. State parks and lands infrastructure and stewardship
34 projects.
35 1. The commissioner and the commissioner of parks, recreation and
36 historic preservation are authorized to undertake state parks and lands
37 infrastructure and stewardship projects.
38 2. No monies shall be expended for state parks and lands infrastruc-
39 ture and stewardship projects except pursuant to an appropriation there-
40 for.
41 § 3. Subdivision 7 of section 92-s of the state finance law is
42 REPEALED.
43 § 4. Subdivision 2 of section 54-0501 of the environmental conserva-
44 tion law, as amended by section 17 of part A of chapter 58 of the laws
45 of 1998, is amended and a new subdivision 5 is added to read as follows:
46 2. "Municipal [Landfill] landfill closure project" means activities
47 undertaken to close, including by reclamation, a landfill owned or oper-
48 ated by a municipality to achieve compliance with regulations promulgat-
49 ed by the department, [or] activities undertaken to implement a landfill
50 gas management system project, or activities undertaken to implement a
51 beneficial end-use project.
52 5. "Beneficial end-use" means a public recreational use, such as a
53 park, hiking trail, golf course, nature area, baseball field, ski slope,
54 or sledding hill, or other public use demonstrated to the department to
55 be beneficial to a community.
S. 6257 30 A. 9759
1 § 5. Section 54-0503 of the environmental conservation law is amended
2 by adding a new subdivision 5 to read as follows:
3 5. For beneficial end-use projects, the landfill must have been
4 closed, and currently be, in compliance with the department's solid
5 waste management regulations which became effective on December thirty-
6 first, nineteen hundred eighty-eight or any subsequent revisions to such
7 regulations.
8 § 6. Subdivision 1 of section 54-0505 of the environmental conserva-
9 tion law, as added by chapter 610 of the laws of 1993, is amended to
10 read as follows:
11 1. State assistance payments shall be approved only for closure
12 projects that include plans for closure, post-closure and construction
13 in accordance with the department's solid waste management regulations
14 applicable to new projects[,] which were in effect six months prior to
15 the date of submittal of the final application.
16 § 7. Paragraphs b and c of subdivision 2 of section 54-0507 of the
17 environmental conservation law, as added by chapter 610 of the laws of
18 1993, are amended and a new paragraph d is added to read as follows:
19 b. any adverse environmental impact resulting from the municipal land-
20 fill, including effects on groundwater; [and]
21 c. the ability of the municipality to pay for the costs of the munici-
22 pal landfill closure[.] project; and
23 d. for beneficial end-use projects, the community value of the recre-
24 ational use to be provided to the public.
25 § 8. Subdivision 2 of section 54-0509 of the environmental conserva-
26 tion law, as amended by section 18 of part A of chapter 58 of the laws
27 of 1998, is amended to read as follows:
28 2. An agreement by the commissioner to make state assistance payments
29 toward the cost of the project by periodically reimbursing the munici-
30 pality for costs incurred during the progress of the project [to]. For a
31 municipal landfill closure project which does not include a beneficial
32 end-use project, such reimbursement shall be a maximum of either fifty
33 percent of the cost, or [seventy-five] ninety percent of the cost for a
34 municipality with a population smaller than thirty-five hundred as
35 determined by the current federal decennial census, or two million
36 dollars, whichever is less. For a beneficial end-use project,
37 reimbursement shall be a maximum of either fifty percent of the cost, or
38 ninety percent of the cost for a municipality with a population smaller
39 than thirty-five hundred as determined by the current federal decennial
40 census, or five hundred thousand dollars, whichever is less. The commis-
41 sioner may consider landfill gas management system projects and benefi-
42 cial end-use projects separately from landfill closure projects. [Such]
43 Project costs are subject to final computation and determination by the
44 commissioner upon completion of the project, and shall not exceed the
45 maximum cost set forth in the contract. For purposes of this subdivi-
46 sion, the approved project cost shall be reduced by the amount of any
47 specific state assistance payments for municipal landfill closure
48 project purposes received by the municipality from any source; provided,
49 however, that non-specific state assistance payments, such as amounts
50 paid pursuant to section fifty-four of the state finance law, shall not
51 be included in such cost reduction.
52 § 9. Subdivision 2 of section 17-1403 of the environmental conserva-
53 tion law is REPEALED and a new subdivision 2 is added to read as
54 follows:
55 2. "Municipality" means a local public authority or public benefit
56 corporation; county; city; town; village; soil and water conservation
S. 6257 31 A. 9759
1 district; school district; supervisory district; district corporation;
2 improvement district within a county, city, town or village; or Indian
3 nation or tribe recognized by the state or the United States with a
4 reservation wholly or partly within the boundaries of New York state; or
5 any combination thereof.
6 § 10. Subdivision 3 of section 17-1403 of the environmental conserva-
7 tion law, as added by chapter 436 of the laws of 1989, is amended to
8 read as follows:
9 3. "Nonpoint source" means any source of water pollution or pollutants
10 which is not a discrete conveyance or a permitted point source [permit-
11 ted pursuant to title seven or eight of this article].
12 § 11. Paragraphs b and e of subdivision 1 and subdivision 5 of section
13 17-1409 of the environmental conservation law, as added by chapter 436
14 of the laws of 1989, are amended to read as follows:
15 b. the project must be proposed for implementation by a [municipal
16 corporation, or by a district at the formal request of such corporation]
17 municipality;
18 e. the [municipal corporation] municipality must have funds available
19 to pay for its share of the eligible project costs.
20 5. Matching grants awarded pursuant to this section shall be up to
21 [fifty] seventy-five percent of the eligible costs for any specified
22 project.
23 § 12. This act shall take effect April 1, 2002; provided, however, if
24 this act shall become a law after such date it shall take effect imme-
25 diately and shall be deemed to have been in full force and effect on and
26 after April 1, 2002.
27 PART J
28 Section 1. Subdivision 2 of section 17-1009 of the environmental
29 conservation law, as amended by chapter 442 of the laws of 2001, is
30 amended to read as follows:
31 2. All owners shall register the facility with the department. The
32 department is authorized to assess a fee according to a schedule based
33 on the size and type of facility, not to exceed two hundred fifty
34 dollars per facility. Such fee shall be paid at the time of registration
35 or registration renewal. Registration shall be renewed every five years
36 or whenever title to a facility is transferred, whichever occurs first.
37 In addition to such registration requirements and pursuant to leak
38 detection requirements set forth in section 17-1005 of this title,
39 notwithstanding any other provision of law, rule or regulation, the
40 department shall duly notify the facility owner of the requirement for
41 such owner to perform the required tightness test on a petroleum bulk
42 storage tank no less than forty-five days prior to the date of the test
43 expiration on the tank. All fees collected pursuant to this subdivision
44 shall be deposited in the New York environmental protection and spill
45 compensation fund established pursuant to section one hundred seventy-
46 nine of the navigation law. The department may waive payment of the
47 registration fee for a facility at which the tanks are to be removed or
48 otherwise permanently taken out of service and the facility is the
49 subject of:
50 (a) An "environmental restoration project," as such term is defined in
51 subdivision seven of section 56-0101 of this chapter, implemented by a
52 municipality, the cost of which is payable in part by the state pursuant
53 to a contract authorized by section 56-0503 of this chapter;
S. 6257 32 A. 9759
1 (b) An "inactive hazardous waste disposal site remedial program," as
2 such term is defined in subdivision three of section 27-1301 of this
3 chapter, implemented by the department, the cost of which is paid by the
4 state according to statute;
5 (c) A "hazardous waste site remediation project," as such term is
6 defined in subdivision nine of section 52-0101 of this chapter, imple-
7 mented by a municipality, the cost of which is payable in part by the
8 state pursuant to a contract authorized by section 52-0303 of this chap-
9 ter;
10 (d) Any remediation implemented pursuant to an order or agreement with
11 the department by any person who is not responsible for the disposal of
12 hazardous waste or the discharge of petroleum according to applicable
13 principles of statutory or common law liability, or who is liable solely
14 as a result of ownership or operation of the facility subsequent to the
15 disposal of hazardous waste or the discharge of petroleum; or
16 (e) Any "cleanup and removal," as such term is defined in subdivision
17 four of section one hundred seventy-two of the navigation law, imple-
18 mented by the department, the cost of which is paid by the state accord-
19 ing to statute.
20 § 2. Subdivision 3 of section 27-0923 of the environmental conserva-
21 tion law, as added by chapter 38 of the laws of 1985, paragraph d as
22 added by chapter 512 of the laws of 1986 and paragraph e as added by
23 chapter 423 of the laws of 1990, is amended to read as follows:
24 3. a. Notwithstanding any provision of this section to the contrary,
25 no special assessment shall be imposed under this section on the
26 resource recovery of any hazardous waste; provided, however, that any
27 materials remaining from resource recovery which are hazardous wastes
28 and which are subsequently disposed of, treated, or incinerated, shall
29 be subject to the special assessments imposed by this section. For
30 purposes of this section, resource recovery shall not include the
31 removal of water from a hazardous waste.
32 b. In the case of a fraction of a ton, the special assessments imposed
33 by this section shall be the same fraction of the amount of such special
34 assessment imposed on a whole ton.
35 c. For the purpose of this section, generation of hazardous waste
36 shall not include retrieval or creation of hazardous waste which must be
37 disposed of [due to remediation of an inactive hazardous waste disposal
38 site in New York state as defined in section 27-1301 of this chapter]
39 under an order of or agreement with the department pursuant to title
40 thirteen or title fourteen of this article, or under a contract with the
41 department pursuant to title five of article fifty-six of this chapter.
42 d. No portion of the special assessments collected pursuant to this
43 section shall be used for any purpose if such use, under federal law,
44 would preclude the collection of such special assessment.
45 e. Notwithstanding any provision of this section to the contrary, the
46 actual method utilized to dispose of or treat any hazardous waste shall
47 govern the determination of the rate per ton applicable under the
48 special assessments imposed by this section, even if such hazardous
49 waste was designated for removal, removed, stored or received for
50 disposal or treatment by a method different than the method actually
51 utilized. Where any such special assessment with respect to any hazard-
52 ous waste is reported and paid on the basis of a rate per ton which is
53 greater than the rate per ton applicable to the actual method utilized
54 to dispose of or treat such hazardous waste, the difference between the
55 amount reported and paid and the amount due using the rate per ton
56 applicable to the actual method utilized shall be considered an overpay-
S. 6257 33 A. 9759
1 ment of such special assessment. The commissioner of taxation and
2 finance shall credit or refund such overpayment in the manner provided
3 and subject to the conditions contained in article twenty-seven of the
4 tax law, as incorporated by subdivision six of this section.
5 § 3. Subdivisions 1, 3 and 4 of section 27-1301 of the environmental
6 conservation law, subdivision 1 as amended by chapter 857 of the laws of
7 1982 and subdivisions 3 and 4 as added by chapter 282 of the laws of
8 1979, are amended to read as follows:
9 1. "Hazardous waste" means a waste which appears on the list or satis-
10 fies the characteristics promulgated by the commissioner pursuant to
11 section 27-0903 of this [chapter and, until, but not after, the promul-
12 gation of such list, a waste or combination of wastes, which because of
13 its quantity, concentration, or physical, chemical or infectious charac-
14 teristics may:
15 a. Cause, or significantly contribute to an increase in mortality or
16 an increase in serious irreversible or incapacitating reversible
17 illness; or
18 b. Pose a substantial present or potential hazard to human health or
19 the environment when improperly treated, stored, transported, disposed
20 or otherwise managed] article and any substance which appears on the
21 list promulgated pursuant to section 37-0103 of this chapter; provided,
22 however, that the term "hazardous waste" does not include:
23 a. Natural gas, natural gas liquids, liquefied natural gas, synthetic
24 gas usable for fuel, or mixtures of natural gas and such synthetic gas;
25 nor
26 b. The residue of emissions from the engine exhaust of a motor vehi-
27 cle, rolling stock, aircraft, vessel, or pipeline pumping station
28 engine; nor
29 c. Source, byproduct, or special nuclear material from a nuclear inci-
30 dent, as those terms are defined in the Atomic Energy Act of 1954, if
31 such release is subject to requirements with respect to financial
32 protection established under section 170 of such act (42 U.S.C. 2210)
33 or, for the purpose of section 104 of the comprehensive environmental
34 response, compensation and liability act of 1980 (42 U.S.C. 9604) or any
35 other response action, any source, byproduct, or special nuclear materi-
36 al from any processing site designated under section 102(a)(1) or 302(a)
37 of the Uranium Mill Tailings Radiation Control Act of 1978 (42 U.S.C.
38 7912(a)(1) or 7942(a)); nor
39 d. Petroleum as defined in section one hundred seventy-two of the
40 navigation law, even if appearing on the list promulgated pursuant to
41 section 37-0103 of this chapter.
42 3. "Inactive hazardous waste disposal site remedial program" means
43 activities undertaken to eliminate, remove, abate, control or monitor
44 health and/or environmental hazards or potential hazards in connection
45 with inactive hazardous waste disposal sites or to treat or dispose of
46 wastes and waste contaminated materials from such sites including, but
47 not limited to, grading, contouring, trenching, grouting, capping, exca-
48 vation, transporting, incineration, chemical treatment, biological
49 treatment or construction of leachate collection and treatment facili-
50 ties. The department may include institutional controls and/or engi-
51 neering controls as components of an inactive hazardous waste disposal
52 site remedial program but only if the owner of such real property annu-
53 ally submits to the department a written statement certifying under
54 penalty of perjury that the institutional controls and engineering
55 controls employed to remediate such contamination are unchanged from the
56 previous certification and that nothing has occurred that would consti-
S. 6257 34 A. 9759
1 tute a violation of any of such controls, and gives access to such real
2 property reasonable under the circumstances to evaluate continued main-
3 tenance of such controls. The department shall establish and maintain a
4 database with relevant information on such controls and shall make such
5 information available for public inspection at the office of the county
6 clerk or register for each county and at the office of the town clerk
7 for each town in Suffolk and Nassau counties.
8 4. "Person" means an individual, trust, firm, joint stock company,
9 corporation, partnership, association, state, municipality, commission,
10 political subdivision of a state, public benefit corporation or any
11 interstate body.
12 a. Such term includes any person owning or operating an inactive
13 hazardous waste disposal site but does not include a person that is a
14 lender that, without participating in the management of such site, holds
15 indicia of ownership primarily to protect the security interest of the
16 person in such site; nor does it include a person that is a lender that
17 did not participate in management of such site prior to foreclosure,
18 notwithstanding that the person forecloses on such site and after fore-
19 closure, sells, re-leases (in the case of a lease finance transaction),
20 or liquidates such site, maintains business activities, winds up oper-
21 ations, undertakes in a non-negligent manner remedial actions under the
22 direction of the department, with respect to such site, or takes any
23 other measure to preserve, protect, or prepare such site prior to sale
24 or disposition, if the person seeks to sell, re-lease (in the case of a
25 lease finance transaction), or otherwise divest the person of such site
26 at the earliest practicable commercially reasonable time, on commercial-
27 ly reasonable terms, taking into account market conditions and legal and
28 regulatory requirements. For purposes of this paragraph:
29 (i) the term "participate in management" means actually participating
30 in the management or operational affairs of such site; and does not
31 include merely having the capacity to influence, or the unexercised
32 right to control, such site's operations;
33 (ii) a person that is a lender and that holds indicia of ownership
34 primarily to protect a security interest in such site shall be consid-
35 ered to participate in management only if, while the borrower is still
36 in possession of such site, the person exercises decisionmaking control
37 over the environmental compliance related to such site, such that the
38 person has undertaken responsibility for the hazardous waste handling or
39 disposal practices related to such site; or exercises control at a level
40 comparable to that of a manager of such site, such that the person has
41 assumed or manifested responsibility for the overall management of such
42 site encompassing day-to-day decisionmaking with respect to environ-
43 mental compliance; or over all or substantially all of the operational
44 functions (as distinguished from financial or administrative functions)
45 of such site other than the function of environmental compliance;
46 (iii) the term "participate in management" does not include performing
47 an act or failing to act prior to the time at which a security interest
48 is created in such site;
49 (iv) the term "participate in management" does not include holding a
50 security interest or abandoning or releasing a security interest;
51 including in the terms of an extension of credit, or in a contract or
52 security agreement relating to the extension, a covenant, warranty, or
53 other term or condition that relates to environmental compliance; moni-
54 toring or enforcing the terms and conditions of the extension of credit
55 or security interest; monitoring or undertaking one or more inspections
56 of such site; requiring a response action or other lawful means of
S. 6257 35 A. 9759
1 addressing the release or threatened release of a hazardous waste in
2 connection with such site prior to, during, or on the expiration of the
3 term of the extension of credit; providing financial or other advice or
4 counseling in an effort to mitigate, prevent, or cure default or diminu-
5 tion in the value of such site; restructuring, renegotiating, or other-
6 wise agreeing to alter the terms and conditions of the extension of
7 credit or security interest; exercising forbearance; exercising other
8 remedies that may be available under applicable law for the breach of a
9 term or condition of the extension of credit or security agreement; or
10 conducting in a non-negligent manner a remedial action directly or under
11 the direction of the department, if the actions do not rise to the level
12 of participating in management (within the meaning of subparagraphs (i)
13 and (ii) of this paragraph);
14 (v) the term "extension of credit" includes a lease finance trans-
15 action in which the lessor does not initially select such leased site
16 and does not during the lease term control the daily operations or main-
17 tenance of such site; or that conforms with regulations issued by the
18 appropriate federal banking agency (as defined in 12 USC section 1813)
19 or the superintendent of banks or with regulations issued by the
20 National Credit Union Administrative Board, as appropriate;
21 (vi) the term "financial or administrative function" includes a func-
22 tion such as that of a credit manager, accounts payable officer,
23 accounts receivable officer, personnel manager, comptroller, or chief
24 financial officer, or a similar function;
25 (vii) the terms "foreclosure" and "foreclose" mean, respectively,
26 acquiring and to acquire, such site through purchase at sale under a
27 judgment or decree, power of sale, or nonjudicial foreclosure sale; a
28 deed in lieu of foreclosure, or similar conveyance from a trustee; or
29 repossession, if such site was security for an extension of credit
30 previously contracted; conveyance pursuant to an extension of credit
31 previously contracted, including the termination of a lease agreement;
32 or any other formal or informal manner by which the person acquires, for
33 subsequent disposition, title to or possession of such site in order to
34 protect the security interest of the person;
35 (viii) the term "lender" means an insured depository institution (as
36 defined in 12 USC Section 1813); an insured credit union (as defined in
37 12 USC section 1752); a bank or association chartered under the Farm
38 Credit Act of 1971 (12 U.S.C. 2001 et seq.); a leasing or trust company
39 that is an affiliate of an insured depository institution; any person
40 (including a successor or assignee of any such person) that makes a bona
41 fide extension of credit to or takes or acquires a security interest
42 from a nonaffiliated person; the Federal National Mortgage Association,
43 the Federal Home Loan Mortgage Corporation, the Federal Agricultural
44 Mortgage Corporation, or any other entity that in a bona fide manner
45 buys or sells loans or interests in loans; a person that insures or
46 guarantees against a default in the repayment of an extension of credit,
47 or acts as a surety with respect to an extension of credit, to a nonaf-
48 filiated person; and a person that provides title insurance and that
49 acquires such site as a result of assignment or conveyance in the course
50 of underwriting claims and claims settlement;
51 (ix) the term "operational function" includes a function such as that
52 of a facility or plant manager, operations manager, chief operating
53 officer, or chief executive officer; and
54 (x) the term "security interest" includes a right under a mortgage,
55 deed of trust, assignment, judgment lien, pledge, security agreement,
56 factoring agreement, or lease and any other right accruing to a person
S. 6257 36 A. 9759
1 to secure the repayment of money, the performance of a duty, or any
2 other obligation by a nonaffiliated person.
3 b. Such term includes any person owning or operating an inactive
4 hazardous waste disposal site but does not include the state of New York
5 or a public corporation which acquired, and thereafter retained without
6 participating in the management of such site, ownership or control
7 involuntarily by virtue of its function as sovereign. Neither the state
8 of New York nor any public corporation shall incur under this chapter
9 any liability as to matters within the jurisdiction of the department as
10 a result of actions taken in response to an emergency created by the
11 release or threatened release of hazardous waste by another person,
12 provided that such actions by the state or public corporation did not
13 constitute reckless, willful, wanton or intentional misconduct. As used
14 in this paragraph:
15 (i) "public corporation" means a public corporation as defined in the
16 general construction law;
17 (ii) involuntary acquisition of ownership or control includes, but is
18 not limited to, the following:
19 (A) acquisitions by the state or a public corporation in its capacity
20 as sovereign, including acquisitions pursuant to abandonment
21 proceedings, or escheat, or any other circumstance of involuntary acqui-
22 sition in its capacity as sovereign;
23 (B) acquisitions by the state or a public corporation, or its agent,
24 acting as a conservator or receiver pursuant to a clear and direct stat-
25 utory mandate or regulatory authority;
26 (C) acquisitions of assets through foreclosure and its equivalents, or
27 otherwise, by the state or a public corporation in the course of admin-
28 istering a loan, loan guarantee or loan insurance program;
29 (D) acquisitions by the state or a public corporation pursuant to
30 seizure or forfeiture authority; and
31 (E) acquisitions by the state or a public corporation as the result of
32 tax delinquency proceedings, provided, that such ownership or control is
33 not retained primarily for investment purposes;
34 (iii) "management participation" means that the state or public corpo-
35 ration is actually participating in the management or operation of the
36 property but does not include the mere capacity to influence, ability to
37 influence or unexercised right to control the operation of the proper-
38 ty.
39 Nothing contained in this paragraph affects the applicability of para-
40 graph a of this subdivision in favor of a holder of a security interest
41 according to the terms thereof.
42 c. Such term includes any person owning or operating an inactive
43 hazardous waste disposal site, including a fiduciary; provided, however,
44 that such liability on the part of a fiduciary shall not exceed the
45 assets held in the fiduciary capacity if such person is not liable inde-
46 pendently of such person's ownership as a fiduciary or actions taken in
47 a fiduciary capacity including, but not limited to, the fiduciary negli-
48 gently causing or contributing to the release or threatened release of
49 hazardous waste at such site.
50 (i) For purposes of this paragraph:
51 (A) the term "fiduciary" means a person acting for the benefit of
52 another party as a bona fide trustee; executor; administrator; custo-
53 dian; guardian of estates or guardian ad litem; receiver; conservator;
54 committee of estates of incapacitated person; personal representative;
55 trustee (including a successor to a trustee) under an indenture agree-
56 ment, trust agreement, lease, or similar financing agreement, for debt
S. 6257 37 A. 9759
1 securities, certificates of interest or certificates of participation in
2 debt securities, or other forms of indebtedness as to which the trustee
3 is not, in the capacity of trustee, the lender; or representative in any
4 other capacity that the department, after providing public notice,
5 determines to be similar to the various capacities previously described
6 in this paragraph; and does not include either a person that is acting
7 as a fiduciary with respect to a trust or other fiduciary estate that
8 was organized for the primary purpose of, or is engaged in, actively
9 carrying on a trade or business for profit unless the trust or other
10 fiduciary estate was created as part of, or to facilitate, one or more
11 estate plans or because of the incapacity of a natural person or a
12 person that acquires ownership or control of a property with the objec-
13 tive purpose of avoiding liability of the person or any other person.
14 (B) the term "fiduciary capacity" means the capacity of a person in
15 holding title to a property, or otherwise having control of or an inter-
16 est in a property, pursuant to the exercise of the responsibilities of
17 the person as a fiduciary.
18 (ii) Nothing in this paragraph affects the rights or immunities or
19 other defenses that are available under law that are applicable to a
20 person subject to this subdivision; or creates any liability for a
21 person or a private right of action against a fiduciary or any other
22 person.
23 (iii) Nothing in this paragraph applies to a person if that person
24 acts in a capacity other than that of a fiduciary or in a beneficiary
25 capacity and in that capacity, directly or indirectly benefits from a
26 trust or fiduciary relationship; or is a beneficiary and a fiduciary
27 with respect to the same fiduciary estate and as a fiduciary, receives
28 benefits that exceed customary or reasonable compensation, and inci-
29 dental benefits, permitted under other applicable law.
30 (iv) This paragraph does not preclude a claim under this chapter
31 against the assets of the estate or trust administered by the fiduciary;
32 or a nonemployee agent or independent contractor retained by a fiduci-
33 ary.
34 d. Such term includes any person owning or operating an inactive
35 hazardous waste disposal site, including an industrial development agen-
36 cy created under the general municipal law, other than one that holds
37 bare legal title to such site; has not participated with any party
38 responsible under law for the remediation of contamination in, on, or
39 from such site to attempt to have such a party avoid its remedial
40 liability; has not exercised any contractual rights it may have or had,
41 if any, under the lease, guarantee, or any other financing agreement
42 pursuant to which the industrial development agency would assume control
43 over the actual operation of the site; and has not taken possession or
44 control of the site. Nothing in this paragraph affects the rights or
45 immunities or other defenses that are available under law that are
46 applicable to an industrial development agency; or creates any liability
47 for a person or a private right of action against an industrial develop-
48 ment agency or any other person.
49 § 4. Subdivision 1 of section 27-1303 of the environmental conserva-
50 tion law, as added by chapter 282 of the laws of 1979, is amended to
51 read as follows:
52 1. [Each] a. For a period of one year after the effective date of
53 the chapter of the laws of two thousand two enacting this provision,
54 each county shall, for the purpose of locating inactive hazardous waste
55 disposal sites as that term was defined on January first, two thousand
56 two, survey its jurisdiction to determine the existence and location of
S. 6257 38 A. 9759
1 suspected inactive hazardous waste disposal sites and shall[, within
2 four months of the effective date of this title,] annually thereafter
3 submit a report to the department describing the location of each such
4 suspected site and the reasons for such suspicion.
5 b. Commencing one year after the effective date of the chapter of the
6 laws of two thousand two which added this paragraph, each county shall,
7 for the purpose of locating inactive hazardous waste disposal sites,
8 survey its jurisdiction to determine the existence and location of
9 suspected inactive hazardous waste disposal sites and shall annually
10 thereafter submit a report to the department describing the location of
11 each such suspected site and the reasons for such suspicion.
12 § 5. Paragraph b of subdivision 4 of section 27-1305 of the environ-
13 mental conservation law, as amended by chapter 857 of the laws of 1982
14 and the opening paragraph as amended by chapter 649 of the laws of 1988,
15 is amended to read as follows:
16 b. The department shall, as part of the registry, assess and, based
17 upon new information received, reassess by March thirty-first of each
18 year, in cooperation with the department of health, the relative need
19 for action at each site to remedy environmental and health problems
20 resulting from the presence of hazardous wastes at such sites; provided,
21 however, that if at the time of such assessment or reassessment, the
22 department has not placed a site in classification 1 or 2, as described
23 in subparagraphs one and two of this paragraph, and such site is the
24 subject of negotiations for, or implementation of, a voluntary agreement
25 pursuant to title fourteen of this article, obligating the person
26 subject to such agreement to, at a minimum, eliminate or mitigate all
27 significant threats to the public health and environment posed by the
28 hazardous waste pursuant to such agreement, the department shall defer
29 its assessment or reassessment during the period such person is engaged
30 in good faith negotiations to enter into such an agreement and, follow-
31 ing its execution, is in compliance with the terms of such agreement and
32 shall assess or reassess such site upon completion of remediation to the
33 department's satisfaction. In making its assessments, the department
34 shall place every site in one of the following classifications:
35 (1) Causing or presenting an imminent danger of causing irreversible
36 or irreparable damage to the public health or environment--immediate
37 action required;
38 (2) Significant threat to the public health or environment--action
39 required;
40 (3) Does not present a significant threat to the public health or
41 environment--action may be deferred;
42 (4) Site properly closed--requires continued management;
43 (5) Site properly closed, no evidence of present or potential adverse
44 impact--no further action required.
45 § 6. The opening paragraph of subdivision 5 of section 27-1305 of the
46 environmental conservation law, as added by chapter 857 of the laws of
47 1982, is amended to read as follows:
48 The department shall[, as soon as possible but in no event later than
49 January first, nineteen hundred eighty-four,] annually prepare and
50 submit in writing [a] an updated "state inactive hazardous waste remedi-
51 al plan," hereinafter referred to as "the plan" [to the state superfund
52 management board. Such board shall then approve of the plan or make such
53 modification as it is empowered to do pursuant to section 27-1319 of
54 this chapter and submit the approved plan or modified plan], to the
55 governor and the legislature on or before [March first, nineteen hundred
S. 6257 39 A. 9759
1 eighty-four] July first of each year. In [proposing,] preparing and
2 compiling and updating the plan, the department shall:
3 § 7. Subdivisions 3, 4 and 5 of section 27-1309 of the environmental
4 conservation law, as amended by chapter 857 of the laws of 1982, are
5 amended to read as follows:
6 3. Any duly designated officer or employee of the department, or of
7 any state agency, and any agent, consultant, contractor or other person,
8 including an employee, agent, consultant or contractor of a responsible
9 person acting at the direction of the department, so authorized in writ-
10 ing by the commissioner, may enter any inactive hazardous waste disposal
11 site and areas near such site and inspect and take samples of wastes,
12 soils, air, surface water and groundwater. In order to take such
13 samples, the department or authorized person may utilize or cause to be
14 utilized such sampling methods as it determines to be necessary includ-
15 ing, but not limited to, soil borings and monitoring wells.
16 4. The department or authorized person shall not take any samples,
17 involving the substantial disturbance of the ground surface of any prop-
18 erty unless it has made a reasonable effort to identify the owner of the
19 property and to notify such owner of the [department's] intent to take
20 such samples. If the owner can be identified, the department shall
21 provide such owner with a minimum of ten days written notice of [its]
22 the intent to take such samples unless the commissioner makes a written
23 determination that such ten day notice will not allow the department to
24 protect the environment or public health, in which case two days written
25 notice shall be sufficient. Any inspection of the property and each such
26 taking of samples shall take place at reasonable times and shall be
27 commenced and completed with reasonable promptness. If any officer,
28 employee, agent, consultant, contractor, or other person so authorized
29 in writing by the commissioner obtains any samples prior to leaving the
30 premises he shall give to the owner or operator a receipt describing the
31 sample obtained and, if requested, a portion of such sample equal in
32 volume or weight to the portion retained. If any analysis is made of
33 such samples, a copy of the results of such analysis shall be furnished
34 promptly to the owner or operator. Upon the completion of all sampling
35 activities, the department or authorized person shall remove, or cause
36 to be removed, all equipment and well machinery and return the ground
37 surface of the property to its condition prior to such sampling unless
38 the department or authorized person and the owner of property shall
39 otherwise agree.
40 5. The expense of any such sampling and analysis shall be paid by the
41 department, but may be recovered from any responsible person in any
42 action or proceeding brought pursuant to this title or common law;
43 provided, that if the person so authorized in writing shall be an
44 employee, agent, consultant or contractor of a responsible person acting
45 at the direction of the department, then the expense of any such sampl-
46 ing and analysis shall be paid by the responsible person.
47 § 8. Paragraph b of subdivision 1 of section 27-1313 of the environ-
48 mental conservation law is relettered paragraph c and a new paragraph b
49 is added to read as follows:
50 b. The department shall have the authority to require the development
51 and implementation of a department-approved inactive hazardous waste
52 disposal site remedial program; provided, however, that the department
53 will use the following in developing and implementing such remedial
54 program:
55 (i) The objective of such remedial program shall be the protection of
56 the public health and environment, with the minimum objective being to
S. 6257 40 A. 9759
1 eliminate or mitigate all significant threats to the public health and
2 environment presented by hazardous waste through proper application of
3 scientific and engineering principles and such remedial program must be
4 selected upon due consideration of the following factors:
5 (A) conformance to standards and criteria that are generally applica-
6 ble, consistently applied, and officially promulgated, that are either
7 directly applicable, or that are not directly applicable but are rele-
8 vant and appropriate, unless good cause exists why conformity should be
9 dispensed with, and with consideration being given to guidance deter-
10 mined, after the exercise of engineering judgment, to be applicable;
11 (B) overall protectiveness of the public health and environment;
12 (C) short-term effectiveness;
13 (D) long-term effectiveness;
14 (E) reduction of toxicity, mobility, and volume with treatment;
15 addressing a hot spot of hazardous waste that permanently and signif-
16 icantly reduces the volume, toxicity, and/or mobility of hazardous waste
17 is to be preferred over a method that does not do so. The hierarchy of
18 remedial technologies shall be as set forth under section 27-0105 of
19 this article;
20 (F) cost;
21 (G) implementability;
22 (H) community acceptance; and
23 (I) land use: the current, intended, and reasonably anticipated future
24 land uses for the property and its surroundings, if ascertainable.
25 (ii) Notwithstanding anything to the contrary in this paragraph, at
26 sites listed pursuant to section 27-1305 of this title as classification
27 1 or 2, there shall be a presumption for soil remediation to soil cate-
28 gory 2 for residential purposes pursuant to section 27-1316 of this
29 title where such remediation is conducted by a person responsible
30 according to applicable principles of statutory or common law liability
31 at a site that is not in active use for industrial or commercial uses
32 and is adjacent to residential uses. This presumption may be overcome by
33 written findings of the commissioner after an opportunity for citizen
34 participation consistent with this title.
35 § 9. Paragraph a of subdivision 3 and subdivisions 4 and 8 of section
36 27-1313 of the environmental conservation law, paragraph a of subdivi-
37 sion 3 as amended and subdivision 8 as added by chapter 857 of the laws
38 of 1982 and subdivision 4 as added by chapter 282 of the laws of 1979,
39 are amended to read as follows:
40 a. Whenever the commissioner finds that hazardous wastes at an inac-
41 tive hazardous waste disposal site constitute a significant threat to
42 the environment, he may: (i) order the owner of such site and/or any
43 person responsible for the disposal of hazardous wastes at such site
44 [(i)] to develop an inactive hazardous waste disposal site remedial
45 program, subject to the approval of the department, at such site, and
46 [(ii)] to implement such program within reasonable time limits specified
47 in the order; or (ii) develop and implement a remedial program for such
48 site after a reasonable, but unsuccessful, attempt to obtain the consent
49 of the owner and/or any person responsible to the issuance of an order
50 to develop and implement such remedial program for such site.
51 Any remedial program developed and implemented pursuant to subpara-
52 graph (i) or (ii) of this paragraph shall provide for a reasonable
53 opportunity for submission of written and oral comments regarding, at a
54 minimum, the proposed remedial program; and in accordance with such
55 regulations as it may promulgate, the department may, subject to appro-
56 priation therefor, make grants of up to fifty thousand dollars per site
S. 6257 41 A. 9759
1 available to a municipality which is not responsible according to appli-
2 cable principles of statutory or common law liability, a community
3 group, and/or such a municipality and a community group in partnership
4 with each other, and which may be affected by a release or threatened
5 release of hazardous waste disposed at such site in order to obtain
6 technical assistance in interpreting existing information with regard to
7 the nature and extent of the contamination at the site and the develop-
8 ment and implementation of such remedial program. To qualify to receive
9 such assistance, a community group must demonstrate that its membership
10 represents the interests of the community affected by such site and a
11 municipality must demonstrate financial need. The proposed recipient
12 must also contribute a percentage of the total grant, to be determined
13 by the department in accordance with such regulations as it may promul-
14 gate, which may be satisfied through money or the cash value of donated
15 supplies or services. Grants awarded under this section may not be used
16 for the purpose of collecting field sampling data. Provided, however,
17 that in the event the commissioner of health shall issue an order pursu-
18 ant to subdivision three of section one thousand three hundred eighty-
19 nine-b of the public health law, such order of the commissioner of
20 health shall supersede any order issued hereunder.
21 4. a. Any order issued pursuant to subdivision three of this section,
22 other than one issued on consent of the person who is the subject of
23 such order, shall be issued only after notice and the opportunity for a
24 hearing is provided to persons who may be the subject of such order. The
25 commissioner shall determine which persons are responsible pursuant to
26 said subdivision according to applicable principles of statutory or
27 common law liability. Such persons shall be entitled to raise any statu-
28 tory or common law defense at any such hearing and such defenses shall
29 have the same force and effect at such hearings as they would have in a
30 court of law. In the event a hearing is held, no order shall be issued
31 by the commissioner under subdivision three of this section until a
32 final decision has been rendered. Any such order shall be reviewable
33 pursuant to article seventy-eight of the civil practice law and rules
34 within thirty days after service of such order. The commissioner may
35 request the participation of the attorney general in such hearings.
36 b. There shall be no liability under this section for a person other-
37 wise liable who can establish by a preponderance of the evidence that
38 the significant threat to the environment attributable to hazardous
39 waste disposed at an inactive hazardous waste disposal site was caused
40 solely by an act of God; an act of war; or an act or omission of a third
41 party other than an employee or agent of such person, or than one whose
42 act or omission occurs in connection with a contractual relationship
43 existing directly or indirectly, with such person (except where the sole
44 contractual arrangement arises from a published tariff and acceptance
45 for carriage by a common carrier or rail), if such person establishes by
46 a preponderance of the evidence that such person exercised due care with
47 respect to the hazardous waste concerned, taking into consideration the
48 characteristics of such hazardous waste, in light of all relevant facts
49 and circumstances, and took precautions against foreseeable acts or
50 omissions of any such third party and the consequences that could fore-
51 seeably result from such acts or omissions; or any combination of them.
52 For purposes of this paragraph, the term, "contractual relationship,"
53 includes, but is not limited to, land contracts, deeds or other instru-
54 ments transferring title or possession, unless the real property on
55 which the site concerned is located was acquired by such person after
56 the disposal or placement of the hazardous waste on, in, or at such
S. 6257 42 A. 9759
1 site, and such person establishes one or more of the circumstances
2 described in subparagraph (i), (ii) or (iii) of this paragraph by a
3 preponderance of the evidence:
4 (i) At the time such person acquired the site such person did not know
5 and has no reason to know that any hazardous waste which is the subject
6 of the significant threat determination was disposed of on, in, or at
7 the site. To establish that such person has no reason to know, such
8 person must have undertaken, at the time of acquisition, all appropriate
9 inquiry into the previous ownership and uses of the property consistent
10 with good commercial or customary practice in an effort to minimize
11 liability. For purposes of the preceding sentence, the commissioner
12 shall take into account any specialized knowledge or experience on the
13 part of such person, the relationship of the purchase price to the value
14 of the property if uncontaminated, commonly known or reasonably ascer-
15 tainable information about the property, the obviousness of the presence
16 or likely presence of contamination at the property, and the ability to
17 detect such contamination by appropriate inspection; or
18 (ii) Such person is a government entity which acquired the site by
19 escheat, or through any other involuntary transfer or acquisition; or
20 (iii) Such person acquired the site by inheritance or bequest, and
21 that such person exercised due care with respect to the hazardous waste
22 concerned, taking into consideration the characteristics of such hazard-
23 ous waste, in light of all relevant facts and circumstances and took
24 precautions against foreseeable acts or omissions of any such third
25 party and the consequences that could foreseeably result from such acts
26 or omissions.
27 Nothing in this paragraph shall diminish the liability of any previous
28 owner or operator of the site who would otherwise be liable under this
29 section. Notwithstanding this paragraph, if such person obtained actual
30 knowledge of the release or threatened release of a hazardous waste at
31 the site when such person owned the site and then subsequently trans-
32 ferred ownership of the site to another person without disclosing such
33 knowledge, such person shall be treated as a person responsible for the
34 disposal of hazardous waste at the site and no defense under this para-
35 graph shall be available to such person. Nothing in this paragraph shall
36 affect the liability under this section of a person who, by any act or
37 omission, caused or contributed to the release or threatened release of
38 a hazardous waste which is the subject of such proceeding relating to
39 such site.
40 8. Any duly designated officer or employee of the department or any
41 other state agency, and any agent, consultant, contractor or other
42 person, including an employee, agent, consultant or contractor of a
43 responsible person acting at the direction of the department, so author-
44 ized in writing by the commissioner, may enter any inactive hazardous
45 waste disposal site and areas near such site to implement[, pursuant to
46 subdivision five of this section,] an inactive hazardous waste disposal
47 site remedial program for such site, provided the commissioner has sent
48 a written notice to the owners of record or any known [known] occupants
49 of such site or nearby areas of the intended entry and work at least ten
50 days prior to such initial entry.
51 § 10. Section 27-1313 of the environmental conservation law is amended
52 by adding four new subdivisions 10, 11, 12, and 13 to read as follows:
53 10. a. If, after the commissioner makes the finding described in para-
54 graph a of subdivision three of this section and after expending reason-
55 able efforts, the department is unable to obtain a voluntary commitment
56 by the owner of an inactive hazardous waste disposal site and/or any
S. 6257 43 A. 9759
1 person responsible for the disposal of hazardous wastes at such site (i)
2 to develop an inactive hazardous waste disposal site remedial program,
3 subject to the approval of the department, at such site, and/or (ii) to
4 implement such program within reasonable time limits, the department may
5 undertake such development or implementation, in which case, subject to
6 paragraphs b and c of this subdivision, there is hereby created a right
7 of the state to recover in any court of competent jurisdiction from such
8 owner and/or any person responsible an amount equal to all costs, both
9 direct and indirect, respecting such site that the state shall have
10 incurred plus a penalty in an amount no less than one and no more than
11 three times all such costs, both direct and indirect, that the state
12 shall have incurred in carrying out same. The department shall not be
13 entitled to such a penalty unless it proves by a preponderance of the
14 evidence that it has expended reasonable efforts as set forth in this
15 paragraph. For purposes of this paragraph, the department has expended
16 "reasonable efforts" to obtain such a voluntary commitment if such owner
17 and/or person responsible is informed in writing of the department's
18 offer to negotiate a voluntary commitment and such owner and/or person
19 responsible does not respond to the department's offer; or responds by
20 refusing to negotiate; or starts to negotiate and thereafter discontin-
21 ues same; or acts in bad faith in the negotiation process and continues
22 not to make such commitment after receiving a final written notification
23 from the department that apprises such owner and/or person responsible
24 that failure to enter into the voluntary commitment will result in the
25 state's recovery of all costs, both direct and indirect, respecting such
26 site that the state shall have incurred plus a penalty in an amount up
27 to three times, but no less than one time, all costs, both direct and
28 indirect, the state shall have incurred in carrying out same.
29 b. Notwithstanding paragraph a of this subdivision, such owner and/or
30 person responsible shall only be liable to the state for an amount equal
31 to all costs, both direct and indirect, the state shall have incurred
32 respecting such site if such owner and/or person responsible can estab-
33 lish by a preponderance of the evidence that for good cause shown, it
34 failed and refused to enter into such voluntary commitment with the
35 department.
36 c. Two or more owners and/or persons responsible described in para-
37 graph a of subdivision three of this section may claim contribution
38 among themselves in an action brought in a court of competent jurisdic-
39 tion, and the amount of contribution to which any of them is entitled
40 shall be equal to the excess paid by that person responsible over and
41 above such person's equitable share of costs. However, the amount of
42 contribution to which any of them is entitled shall be three times the
43 excess paid by that person responsible over and above such person's
44 equitable share of costs associated with the carrying out of such
45 person's obligations under the voluntary commitment with the department
46 described in paragraph a of this subdivision if one-third of such award
47 shall be paid to the remedial program transfer fund under section nine-
48 ty-seven-yyy of the state finance law and the court finds that:
49 (i) the contribution defendant is a person responsible for such site;
50 (ii) the contribution plaintiff gave thirty days notice to the
51 contribution defendant of the plaintiff's intention to seek contribution
52 in the event that the contribution defendant declined to participate in
53 the implementation of the contribution plaintiff's voluntary commitment;
54 (iii) the contribution defendant failed or refused to enter into a
55 settlement agreement with the contribution plaintiff; and
S. 6257 44 A. 9759
1 (iv) the contribution plaintiff entered into a voluntary commitment
2 with the department to remediate the site.
3 d. A person misidentified by the department as an owner and/or person
4 responsible but which entered into a voluntary commitment, other than a
5 voluntary agreement pursuant to title fourteen of this article, with the
6 department may recover from the remedial program transfer fund estab-
7 lished by section ninety-seven-yyy of the state finance law the costs it
8 shall have incurred that are reasonable in light of the action agreed to
9 be undertaken.
10 e. All monies collected by the state pursuant to this section shall be
11 deposited into the remedial program transfer fund established by section
12 ninety-seven-yyy of the state finance law.
13 11. a. Any person subject to an order issued pursuant to this section
14 or any person that shall have entered into a voluntary agreement with
15 the department under title fourteen of this article may seek in a court
16 of competent jurisdiction contribution from any other person who is a
17 person responsible for the disposal of hazardous wastes at an inactive
18 hazardous waste disposal site or at an affected site, as defined by
19 section 27-1401 of this article, for costs incurred in developing and
20 implementing a department-approved inactive hazardous waste disposal
21 site remedial program or in negotiating and implementing a voluntary
22 agreement. Nothing in this subdivision shall be construed to limit,
23 affect, or impair any protections from or limitations on liability
24 provided by the department or otherwise.
25 b. If the costs of measures undertaken at an inactive hazardous waste
26 disposal site or at an affected site for the purpose of addressing
27 hazardous waste or petroleum are increased because of design or imple-
28 mentation considerations or alterations made for the purpose of accommo-
29 dating, effecting or advancing the redevelopment or reuse of such site,
30 the amount of such increase shall not be recoverable under paragraph a
31 of this subdivision. Examples of design or implementation considerations
32 or alterations that may be made for the purpose of accommodating,
33 effecting or advancing the redevelopment or reuse of a site include, but
34 are not limited to, such measures as altering the type, amount, quality
35 or aesthetic character of materials used in construction from the type,
36 amount, quality or aesthetic character of materials required to imple-
37 ment a remedial program or voluntary agreement at such site.
38 c. Any other provision of this subdivision notwithstanding, no costs
39 will be deemed unrecoverable under paragraph a of this subdivision
40 because they were expended to achieve a higher level of remediation at
41 an inactive hazardous waste disposal site or affected site than the
42 level required by the department.
43 d. In any action or proceeding brought pursuant to this subdivision,
44 the defendant shall be entitled to raise any statutory or common law
45 defense that he may have.
46 e. In resolving contribution claims brought pursuant to this subdivi-
47 sion, the court may allocate costs among liable parties using such equi-
48 table factors as the court determines are appropriate.
49 f. No action for contribution pursuant to this provision may be
50 commenced more than six years after the later of:
51 (i) the date of judgment in any action under any law, state or feder-
52 al, respecting the costs that are the subject of the claim for contrib-
53 ution; or
54 (ii) the date of the issuance of an order or agreement by the depart-
55 ment respecting the costs that are the subject of the claim for contrib-
S. 6257 45 A. 9759
1 ution or respecting activities the conduct of which caused the expendi-
2 ture of the costs that are the subject of the claim for contribution.
3 g. The court shall enter a declaratory judgment on liability for costs
4 that will be binding on any subsequent action or actions to recover
5 costs incurred in implementing a department-approved inactive hazardous
6 waste disposal site remedial program, or in implementing a voluntary
7 agreement under title fourteen of this article.
8 h. Nothing contained in this subdivision shall affect any rights to
9 recovery of costs to which any party may be entitled by contract or
10 otherwise under law.
11 12. a. Definition. For purposes of this subdivision, the term "natural
12 resources" means land, fish, wildlife, biota, air, water, ground water,
13 drinking water supplies, and other such resources belonging to, managed
14 by, controlled by, or pertaining to the state of New York.
15 b. Liability. Any owner of an inactive hazardous waste disposal site,
16 and any person responsible for the disposal of hazardous wastes at such
17 site, who shall be liable according to applicable principles of statuto-
18 ry or common law liability and subject to any statutory or common law
19 defense, shall be liable to the state of New York for damages for injury
20 to, destruction of, loss of, or loss of use of natural resources,
21 including the reasonable costs of assessing such injury, destruction,
22 loss, or loss of use resulting from the disposal of hazardous wastes at
23 such inactive hazardous waste disposal site. Provided, that there shall
24 be no such liability where the owner or other person responsible demon-
25 strates that the injury to, destruction of, loss of, or loss of use of
26 natural resources complained of were specifically identified as an irre-
27 versible and irretrievable commitment of natural resources in an envi-
28 ronmental impact statement, or other comparable environmental analysis,
29 and the decision to grant a permit or license authorizes such commitment
30 of natural resources, and the site was otherwise operating within the
31 terms of its permit or license.
32 c. Damages. The attorney general shall, at the request of the commis-
33 sioner as trustee of such natural resources, commence a civil action to
34 recover such damages on behalf of the people of the state of New York.
35 All damages recovered in any such action shall be paid over to the
36 commissioner for deposit to the credit of the remedial program transfer
37 fund established pursuant to section ninety-seven-yyy of the state
38 finance law. Any assessment of damages to natural resources for
39 purposes of this subdivision made by the commissioner in accordance with
40 such regulations as may be promulgated under section 27-1315 of this
41 title shall have the force and effect of a rebuttable presumption on
42 behalf of the commissioner in any such action.
43 13. The department, by and through the commissioner, shall be author-
44 ized to exempt a person from the requirement to obtain any state or
45 local permit or other authorization for any activity needed to implement
46 an inactive hazardous waste disposal remedial program pursuant to this
47 title; provided, that the activity is conducted in a manner which satis-
48 fies all substantive technical requirements applicable to like activity
49 conducted pursuant to a permit.
50 § 11. The environmental conservation law is amended by adding a new
51 section 27-1314 to read as follows:
52 § 27-1314. Covenant not to sue.
53 1. After the successful implementation of an order on consent which
54 provides for the development and implementation of an inactive hazardous
55 waste disposal site remedial program, the person subject to the order
56 shall submit to the department a written certification prepared by an
S. 6257 46 A. 9759
1 individual licensed or otherwise authorized in accordance with article
2 one hundred forty-five of the education law to practice the profession
3 of engineering who shall have been in charge of the implementation of
4 such remediation undertaken pursuant to such order substantiating that,
5 at a minimum, such remedial activities satisfied the remedial require-
6 ments for the site.
7 2. Upon the department's receipt of such certification, the department
8 shall review the final engineering report and the data submitted pursu-
9 ant to the order as well as any other relevant information regarding the
10 site. The department shall provide the person, upon its satisfaction
11 that the remedial requirements for the site have been achieved, with a
12 covenant not to sue, binding upon the state, for any liability, includ-
13 ing any future liability or claim for the further remediation of hazard-
14 ous wastes at or from the site that was the subject of such order except
15 that a person responsible for the site's remediation as of the effective
16 date of the consent order pursuant to applicable principles of statutory
17 and common law liability shall not receive a release for natural
18 resource damages. Additionally, the state nonetheless shall reserve all
19 of its rights concerning, and such covenant shall not extend to, any
20 further investigation or remedial action the department deems necessary,
21 as a result of:
22 a. a failure to comply with the terms and conditions of the order;
23 b. a fraudulent demonstration that the cleanup levels identified in
24 the order were reached;
25 c. a release or threatened release at the site subsequent to the
26 effective date of the order;
27 d. a change in the site's use subsequent to the effective date of the
28 order to a use requiring a lower level of residual contamination unless
29 additional remedial activities are undertaken which shall meet the stan-
30 dard for protection of the public health and environment that applies to
31 remedial actions for such use under this title;
32 e. information received, in whole or in part, after the department's
33 execution of such order, which indicates that the remediation performed,
34 or to be performed, under such order will not be, or is not, protective
35 of the public health or environment for such use of the site; or
36 f. the department's determination that the remedy implemented is not
37 protective of the public health or environment.
38 3. The reservation contained in paragraph d of subdivision two of this
39 section shall not be reserved in the event that a person remediates soil
40 contamination to soil category 1, as that term is described in paragraph
41 a of subdivision three of section 27-1316 of this title.
42 4. The reservation contained in paragraph f of subdivision two of this
43 section shall not be reserved for a person who is not responsible for
44 the remediation of the site pursuant to applicable principles of statu-
45 tory or common law liability, or who is liable solely as a result of
46 ownership or operation of the affected site subsequent to the disposal
47 of hazardous waste or the discharge of petroleum, in the event that such
48 person remediates soil contamination to soil category 1, as that term is
49 described in paragraph a of subdivision three of section 27-1316 of this
50 title.
51 5. The covenant not to sue issued pursuant to this section shall
52 extend to the person's successors or assigns through acquisition of
53 title to the site to which the covenant applies and to a person who
54 develops or otherwise occupies the site, provided that such persons act
55 in good faith to adhere to the requirements of such order on consent.
56 However, such covenant does not extend, and cannot be transferred, to a
S. 6257 47 A. 9759
1 person who is responsible as of the date of the issuance of an order on
2 consent for the remediation of hazardous waste at the site according to
3 applicable principles of statutory or common law liability unless that
4 person was party to the order on which such covenant was based. A notice
5 of the order containing such covenant shall be recorded and indexed as a
6 declaration of covenant in the office of the recording officer for the
7 county or counties where such site is located in the manner prescribed
8 by article nine of the real property law within thirty days of signing
9 the order if the person is an owner or within thirty days of acquiring
10 title to the site if the person is a prospective purchaser.
11 6. The provisions of this title shall not affect an action or a claim,
12 including a claim for contribution, that a person who complies with an
13 order on consent executed by such person and the department providing
14 for the development and implementation of an inactive hazardous waste
15 disposal site remedial program pursuant to this title has or may have
16 against a third party.
17 7. Nothing in this subdivision shall be construed to affect either the
18 liability of any person with respect to any costs, damages, or investi-
19 gative or remedial activities that are not included in the order; or the
20 department's authority to maintain an action or proceeding against any
21 person who is not subject to the order.
22 8. A person who has settled its liability to the department under this
23 subdivision shall not be liable for claims for contribution regarding
24 matters addressed in the order. Such settlement does not discharge any
25 of the persons responsible under law to investigate and remediate the
26 hazardous waste unless its terms so provide, but it reduces the poten-
27 tial liability of the others by the amount of the settlement.
28 9. Nothing in this subdivision shall be construed to affect the
29 authority of the department to reach settlement with other persons
30 consistent with its authority under applicable law.
31 § 12. Section 27-1315 of the environmental conservation law, as
32 amended by chapter 857 of the laws of 1982, is amended to read as
33 follows:
34 § 27-1315. Rules and regulations.
35 1. The commissioner shall have the power to promulgate rules and regu-
36 lations necessary and appropriate to carry out the purposes of this
37 title. Any such regulations shall include provisions which establish the
38 procedures for a hearing pursuant to paragraph a of subdivision four of
39 section 27-1313 of this [article] title. Any such provisions shall
40 ensure a division of functions between the commissioner, the staff who
41 present the case and any hearing officers appointed. In addition, any
42 such regulations shall set forth findings to be based on a factual
43 record which must be made before the commissioner determines that a
44 significant threat to the environment exists. Rules and regulations
45 promulgated pursuant to this title shall be subject to the approval of a
46 board which shall be known as the inactive hazardous waste disposal site
47 regulation review board which shall have the same members, rules and
48 procedures as the state environmental board.
49 2. Such rules and regulations of the department as shall be in effect
50 on the effective date of the chapter of the laws of two thousand two
51 which added this subdivision that shall have been promulgated to carry
52 out the purposes of this title shall be deemed to be revised, as of the
53 effective date of the chapter of the laws of two thousand two which
54 added this subdivision, to include the definition of "hazardous waste"
55 as it appears in section 27-1301 of this title.
S. 6257 48 A. 9759
1 § 13. Section 27-1316 of the environmental conservation law is
2 REPEALED and a new section 27-1316 is added to read as follows:
3 § 27-1316. Soil cleanup levels.
4 1. The commissioner shall establish a technical advisory panel. The
5 membership of the panel shall be appointed by the commissioner and the
6 commissioner of health and shall include representation from the public
7 health advocacy community, the environmental advocacy community, the
8 business community, municipalities, and others as deemed appropriate by
9 the commissioner. The commissioner and the commissioner of the depart-
10 ment of health shall be co-chairs of such panel. None of the appointed
11 members shall be officers or employees of any state department or agen-
12 cy. Each member shall have experience in risk assessment methodologies,
13 remediation technologies, or other appropriate scientific, technical, or
14 other relevant expertise in regard to the remediation of contaminated
15 sites. All meetings of the technical advisory panel shall be open to the
16 public. The recommendations of the technical advisory panel shall be
17 subject to public comment.
18 2. The panel shall provide advice on the development of, and recom-
19 mend, soil clean-up levels which provide for a multi-category approach
20 for the remediation of soil contamination, as set forth in subdivision
21 three of this section, at inactive hazardous waste disposal sites, sites
22 subject to a voluntary agreement under title fourteen of this article,
23 and cleanup and removal actions under article twelve of the navigation
24 law.
25 3. In the development of soil cleanup levels, the technical advisory
26 panel shall consider the following as the basis for the soil cleanup
27 levels: the cancer and non-cancer human health effects; background
28 concentrations; exposure to the same contaminant from other routes; the
29 strength of the toxicological data base; sensitive populations, includ-
30 ing children; protection of groundwater for its classified use, surface
31 water, air (including indoor air); and protection of ecological
32 resources, including fish and wildlife. In addition, the cumulative
33 effects of contaminants and the possibility that some contaminants may
34 act through similar toxicological mechanisms shall be considered. Where
35 toxicological, exposure or other pertinent data are inadequate or non-
36 existent for a specific chemical, the experiences under the existing
37 state remedial programs shall be considered. The goals for the level of
38 risk associated with soil cleanup levels for individual contaminants are
39 an excess cancer risk of one in one million for carcinogenic end points
40 and a hazard index of one for non-cancer end points for each soil cate-
41 gory.
42 a. Soil category 1: cleanup levels that will be protective of public
43 health and the environment that would allow the site to be used for any
44 purpose without restriction and without reliance on institutional
45 controls or engineering controls.
46 b. Soil category 2: cleanup levels that will be protective of public
47 health and the environment for the site's current, intended, or reason-
48 ably anticipated residential, commercial, or industrial use and with
49 consideration of use of institutional or engineering controls to reach
50 such levels.
51 c. Soil category 3: a process to determine cleanup levels that will be
52 protective of public health and the environment using site specific data
53 for the site's current, intended or reasonably anticipated residential,
54 commercial, or industrial use.
S. 6257 49 A. 9759
1 4. The technical advisory panel shall submit its recommendations with-
2 in eighteen months from the date of the first meeting of such technical
3 advisory panel.
4 5. After the close of the public comment period on the recommendations
5 of the technical advisory panel, the commissioner and the commissioner
6 of health, where appropriate, shall promulgate regulations setting forth
7 the soil cleanup levels, taking into consideration such recommendations
8 and any other information deemed relevant by the department and the
9 department of health.
10 6. The department shall determine cleanup levels for contaminants in
11 the soil using site specific data until the commissioner promulgates
12 rules and regulations pursuant to this section and thereafter shall use
13 the soil cleanup levels set forth in such rules and regulations, as may
14 be amended.
15 § 14. Article 27 of the environmental conservation law is amended by
16 adding a new title 14 to read as follows:
17 TITLE 14
18 VOLUNTARY CLEANUP ACT
19 Section 27-1400. Declaration of policy and findings of fact.
20 27-1401. Definitions.
21 27-1403. Request for participation.
22 27-1405. Determination of eligibility.
23 27-1407. Voluntary agreement and work plan requirements.
24 27-1409. Citizen participation/public notification.
25 27-1411. Covenant not to sue.
26 27-1413. Remediation certificate.
27 27-1415. Payment of state costs.
28 27-1417. Change of use.
29 27-1419. Immunity.
30 27-1421. Permit waivers.
31 27-1423. Access to sites.
32 § 27-1400. Declaration of policy and findings of fact.
33 The legislature hereby declares and finds that, to advance the policy
34 of the state of New York to conserve, improve and protect its natural
35 resources and environment and control water, land and air pollution in
36 order to enhance the health, safety and welfare of the people of the
37 state and their overall economic and social well being, it is appropri-
38 ate to enact this Voluntary Cleanup Act to accomplish remediation of
39 affected sites by affected persons without official compulsion; and it
40 is the intent of the legislature that the provisions of this Voluntary
41 Cleanup Act shall not be construed as limiting or otherwise affecting
42 any authority conferred upon the department by any other provision of
43 law. The remedial goal of the voluntary cleanup program shall be the
44 protection of public health and the environment, with the minimum objec-
45 tive being to eliminate or mitigate all significant threats to public
46 health and the environment presented by the hazardous waste and/or
47 petroleum through proper application of scientific and engineering prin-
48 ciples.
49 § 27-1401. Definitions.
50 1. "Affected person" means a person whose request to participate in
51 the voluntary cleanup program under this title has been accepted by the
52 department for consideration.
53 2. "Affected site" means an area or structure where hazardous waste
54 and/or petroleum has been deposited, disposed of, placed, or otherwise
55 come to be located that is not a site on the National Priorities List
56 established under authority of 42 U.S.C.A., nor subject to enforcement
S. 6257 50 A. 9759
1 action, nor subject to a permit issued pursuant to titles seven or nine
2 of this article.
3 3. "Hazardous waste" means hazardous waste as defined in section
4 27-1301 of this article.
5 4. "Interim remedial measure" means "remediation" consisting of a
6 discrete set of activities to address both emergency and non-emergency
7 site conditions which can be undertaken without extensive investigation
8 and evaluation.
9 5. "Investigation" means all those activities to characterize the
10 nature and extent of a release or threatened release of hazardous waste
11 and/or petroleum into the environment.
12 6. "Person" means an individual, trust, firm, joint stock company,
13 corporation, partnership, association, state, municipality, commission,
14 political subdivision of a state, public benefit corporation or any
15 interstate body.
16 7. "Petroleum" means petroleum as defined in section one hundred
17 seventy-two of the navigation law, even if appearing on the list promul-
18 gated pursuant to section 37-0103 of this chapter.
19 8. "Preliminary environmental assessment" means a written report
20 submitted as part of a request to participate in the voluntary cleanup
21 program within the department under this title which shall contain the
22 information described in subdivision two of section 27-1403 of this
23 title.
24 9. "Remediation" means the activities undertaken, except for "investi-
25 gation" activities, to eliminate, remove, abate, control or monitor
26 health and/or environmental hazards or potential hazards in connection
27 with an affected site or to treat or dispose of wastes and waste contam-
28 inated materials from the site, including but not limited to, grading,
29 contouring, trenching, grouting, capping, excavation, transporting,
30 incineration, chemical treatment, biological treatment or construction
31 of leachate collection and treatment facilities.
32 10. "State costs" means all those costs, obligations, commitments, or
33 undertakings associated with the administration or oversight responsi-
34 bilities of the department, the department of health, or any other state
35 agency attributable to carrying out the investigation and/or remediation
36 of an affected site under a voluntary agreement, as described in this
37 title. Such expenses shall include administrative expenses (wages and
38 salaries), fringe benefits, overhead, supplies and materials, equipment,
39 travel and utilities.
40 11. "Voluntary agreement" means an agreement executed in accordance
41 with this title by an affected person and the department concerning
42 actual, threatened, or suspected hazardous waste and/or petroleum pres-
43 ent at or migrating from an affected site.
44 § 27-1403. Request for participation.
45 1. A person who desires to participate in the voluntary cleanup
46 program under this title concerning a particular affected site shall
47 submit a request to the department.
48 2. Such request shall be on a form provided by the department and
49 shall contain general information concerning such person and such
50 person's relation to the affected site, a description of the affected
51 site, and a copy of a preliminary environmental assessment concerning
52 such affected site that shall include, but not be limited to:
53 a. a review of any relevant prior environmental studies, property
54 assessments, or geological studies of such affected site;
55 b. a legal description of such affected site;
56 c. the physical characteristics of such affected site;
S. 6257 51 A. 9759
1 d. the compliance history of any operations at such affected site to
2 the extent the history is known by such person;
3 e. a review of any existing aerial photographs of such affected site
4 that may indicate its prior uses;
5 f. if possible, interviews with any employee who may have knowledge of
6 environmental conditions at such affected site;
7 g. an inspection of such affected site sufficient to evaluate site
8 conditions and remedial needs;
9 h. an identification of the past, current, intended, and reasonably
10 anticipated future uses of such affected site; and
11 i. any other relevant information concerning the potential for human
12 and environmental exposures to contamination at such affected site.
13 3. The department shall determine whether such affected site should be
14 included in the registry of inactive hazardous waste disposal sites as
15 required by section 27-1305 of this article. If the department deter-
16 mines that such affected site is eligible for inclusion in the registry
17 as a classification 1 or 2 site, and if the affected person commits to
18 enter into a voluntary agreement pursuant to this title which requires
19 the elimination or mitigation of all significant threats to the public
20 health and environment posed by the hazardous waste, the department
21 shall defer including the affected site in the registry and shall
22 continue to defer such site for so long as the affected person is
23 engaged in good faith negotiations to enter into such an agreement and,
24 following its execution, is in compliance with the terms of the volun-
25 tary agreement.
26 § 27-1405. Determination of eligibility.
27 1. The department shall use its best efforts to notify the person
28 requesting participation in the voluntary cleanup program within sixty
29 days after receiving such request pursuant to section 27-1403 of this
30 title that such request is either accepted or rejected.
31 2. The department shall reject such request if:
32 a. the request is submitted by the owner and/or any person responsible
33 for the disposal of hazardous waste according to applicable principles
34 of statutory or common law liability at an affected site which is listed
35 in the registry of inactive hazardous waste disposal sites under section
36 27-1305 of this article and given a classification as described in
37 subparagraph one or two of paragraph b of subdivision four of such
38 section;
39 b. the request does not contain the information required pursuant to
40 subdivision two of section 27-1403 of this title in sufficient detail to
41 assess the conditions of the affected site;
42 c. the department determines that there is an action or proceeding
43 against the person who is requesting participation in the voluntary
44 cleanup program that is pending in any civil or criminal court in any
45 jurisdiction, or before any state or federal administrative agency or
46 body, wherein the state or federal government seeks the investigation,
47 removal or remediation of hazardous waste and/or petroleum, or penalties
48 for the disposal of hazardous waste and/or petroleum; or
49 d. the department, based on the preliminary environmental assessment
50 and/or other information the department possesses, determines that the
51 request is for a site which does not meet the definition of "affected
52 site" pursuant to section 27-1401 of this title.
53 3. The department may reject such request for participation if the
54 department determines that the public interest would not be served by
55 granting such request.
S. 6257 52 A. 9759
1 4. If such request is rejected pursuant to paragraph b of subdivision
2 two of this section, the department shall provide to the person making
3 such request, in writing, a list of the additional information required
4 for the department to determine eligibility under this title.
5 § 27-1407. Voluntary agreement and work plan requirements.
6 1. a. The voluntary agreement shall include, but not be limited to,
7 the following provisions:
8 (i) one requiring such affected person to pay for state costs
9 provided, however, that with respect to an affected site which the
10 department has determined constitutes a significant threat to the public
11 health or environment, the department may include a provision requiring
12 the affected person to provide a technical assistance grant, as
13 described in subdivision three of section 27-1313 of this article and
14 under the conditions described therein, to an eligible party in accord-
15 ance with procedures established under such program, with the cost of
16 such a grant serving as an offset against such state costs;
17 (ii) one resolving disputes arising from the evaluation, analysis, and
18 oversight of the implementation of the work plan as described in para-
19 graph b of this subdivision;
20 (iii) one requiring an indemnification provision which holds the state
21 harmless from any claim, suit, action, and cost of every name and
22 description arising out of or resulting from the fulfillment or
23 attempted fulfillment of the voluntary agreement except for those
24 claims, suits, actions, and costs arising from the state's gross negli-
25 gence or willful or intentional misconduct;
26 (iv) one authorizing the department to terminate a voluntary agreement
27 at any time during the implementation of such agreement if the affected
28 person implementing such agreement fails to comply substantially with
29 such agreement's terms and conditions;
30 (v) one exempting such affected person from the requirement to obtain
31 any state or local permit or other authorization for any activity satis-
32 fying the following criteria:
33 (1) the activity is conducted on the affected site or on different
34 premises that are under common control or are contiguous to or phys-
35 ically connected with the affected site and the activity manages exclu-
36 sively hazardous waste and/or petroleum from such affected site,
37 (2) the activity satisfies all substantive technical requirements
38 applicable to like activity conducted pursuant to a permit as determined
39 by the department, and
40 (3) the activity is conducted under such voluntary agreement;
41 (vi) one stating that the department shall not consider such affected
42 person an operator of such affected site based solely upon execution or
43 implementation of such voluntary agreement for purposes of remediation
44 liability;
45 (vii) a requirement that the affected person conduct investigation
46 and/or remediation activities pursuant to one or more work plans which
47 are approved by the department; and
48 (viii) the inclusion of other conditions considered necessary by the
49 department concerning the effective and efficient implementation of this
50 title, and, where the affected person is responsible for the disposal of
51 hazardous waste or the discharge of petroleum according to applicable
52 principles of statutory or common law liability, unless such liability
53 arises solely from ownership or operation of the affected site subse-
54 quent to the disposal of hazardous waste or the discharge of petroleum,
55 the department shall include provisions relating to recovery of state
56 costs incurred before the effective date of such voluntary agreement.
S. 6257 53 A. 9759
1 b. A work plan shall include, but not be limited to, the following
2 requirements:
3 (i) a work plan for the investigation of the affected site shall
4 provide for the investigation and characterization of the nature and
5 extent of the contamination within the boundaries of the affected site,
6 provided, however, that an affected person that is responsible for the
7 disposal of hazardous waste or the discharge of petroleum under applica-
8 ble principles of statutory or common law liability, unless such liabil-
9 ity arises solely from ownership or operation of the affected site
10 subsequent to the disposal of hazardous waste or the discharge of petro-
11 leum, shall also be required to investigate and characterize the nature
12 and extent of contamination emanating from such affected site. An
13 affected person not responsible for the disposal of hazardous waste or
14 the discharge of petroleum under applicable principles of statutory or
15 common law liability, or a person that is liable solely as a result of
16 ownership or operation of the affected site subsequent to the disposal
17 of hazardous waste or the discharge of petroleum, must perform an expo-
18 sure assessment consisting of an evaluation of the pathways by which a
19 receptor could be exposed to such contamination, in order to determine
20 the risk to public health and the environment from any contamination
21 emanating from such affected site. The work plan shall require that the
22 affected person cause a final report to be prepared and submitted to the
23 department that identifies the investigation activities completed pursu-
24 ant to the work plan. Such final report, at a minimum, shall:
25 A. fully characterize the nature and extent of contamination at the
26 affected site and, if the affected person is required to conduct an
27 off-site investigation pursuant to this title, the nature and extent of
28 contamination that has migrated from the affected site;
29 B. state whether the completed investigation has demonstrated that
30 conditions at the affected site (i) require remediation in order to meet
31 the remedial goal of the voluntary cleanup program or (ii) meet the
32 remedial goal of the voluntary cleanup program without necessity for
33 remediation; and
34 C. if the final report certifies that no remediation is required to
35 meet the remedial goal of the voluntary cleanup program, then the final
36 report shall also demonstrate the same requirements as set forth in
37 subdivision two of this section.
38 (ii) a work plan for the remediation of the affected site, other than
39 a work plan for an interim remedial measure, shall provide for the
40 development and implementation of a remedial program for such contam-
41 ination within the boundaries of such affected site, provided however,
42 that an affected person that is responsible for the disposal of hazard-
43 ous waste or the discharge of petroleum under applicable principles of
44 statutory or common law liability, except an affected person whose
45 liability arises solely from ownership or operation of the affected site
46 subsequent to the disposal of hazardous waste or the discharge of petro-
47 leum, shall also be required to provide in such work plan for the devel-
48 opment and implementation of a remedial program for contamination
49 related to the affected site but located outside the boundaries of the
50 affected site. The remedial goal of any such remedial program shall be
51 the protection of public health and the environment, with the minimum
52 objective being to eliminate or mitigate all significant threats to
53 public health and the environment presented by the hazardous waste
54 and/or petroleum through proper application of scientific and engineer-
55 ing principles and such remedial program must be selected upon due
56 consideration of the evaluation factors set forth in paragraph b of
S. 6257 54 A. 9759
1 subdivision one of section 27-1313 of this article. Such work plan must
2 contain an analysis that such proposed remedy was assessed using such
3 evaluation factors. Such work plan must provide that the soil cleanup
4 levels be consistent with the soil cleanup levels set forth in rules and
5 regulations, as amended, promulgated pursuant to section 27-1315 and
6 subdivision five of section 27-1316 of this article; until such regu-
7 lations are promulgated, the department shall determine cleanup levels
8 for contaminants in soil using site specific data. The department may
9 approve a work plan that includes institutional controls and/or engi-
10 neering controls as components of an interim remedial measure or a reme-
11 dial program but only if the work plan requires the owner of such real
12 property to annually submit to the department a written statement certi-
13 fying under penalty of perjury that the institutional controls and engi-
14 neering controls employed to remediate such contamination are unchanged
15 from the previous certification and that nothing has occurred that would
16 constitute a violation of any such controls, and gives access to such
17 real property reasonable under the circumstances to evaluate continued
18 maintenance of such controls. The department shall establish and main-
19 tain a database with relevant information on such controls and shall
20 make such information available for public inspection at the office of
21 the county clerk or register for each county and at the office of the
22 town clerk for each town in Suffolk and Nassau counties;
23 (iii) a work plan for remediation pursuant to an interim remedial
24 measure shall contain such provisions as the department deems appropri-
25 ate. The work plan shall require that the affected person cause a final
26 report to be prepared and submitted to the department that identifies
27 the activities completed pursuant to such work plan; and
28 (iv) at any time during the evaluation of a proposed work plan, the
29 department may request that an affected person submit additional or
30 corrected information to the department. An affected person shall either
31 comply with the request or withdraw such proposed work plan from consid-
32 eration.
33 2. For a work plan requiring remediation, the affected person shall
34 cause a final report to be prepared and submitted to the department that
35 identifies the remediation activities completed pursuant to such work
36 plan. A final report for a work plan requiring remediation, other than
37 an interim remedial measure, shall, at a minimum, demonstrate, as appro-
38 priate, that:
39 a. there is no contamination by hazardous waste or petroleum of the
40 soil, sediment, surface water, or groundwater on or underlying such
41 affected site or, if required by this title, such areas off-site which
42 are or have been impacted by on-site contamination in concentrations
43 exceeding the requirements for remediation set forth in such work plan
44 for remediation of such affected site;
45 b. the data submitted to the department demonstrates that the applica-
46 ble remediation requirements set forth in the work plan have been or
47 will be achieved in accordance with the timeframes, if any, established
48 in such work plan;
49 c. the use restrictions, if any are required by the voluntary agree-
50 ment, have been recorded and indexed as a declaration of restrictions in
51 the office of the recording officer for the county or counties where
52 such affected site is located in the manner prescribed by article nine
53 of the real property law. Such declaration of restriction shall contain
54 the name of the record owner of such affected site along with tax map
55 parcel number or the section, block, and lot number of such affected
56 site; or
S. 6257 55 A. 9759
1 d. the department has approved a plan submitted by such affected
2 person for the proper operation, maintenance and monitoring of engineer-
3 ing controls, if any are required by such work plan, used to contain or
4 control the contamination at or from such affected site.
5 3. In the event that the affected person is not required by this title
6 to conduct an investigation or perform remediation outside the property
7 boundaries of the affected site, then the department shall require the
8 person responsible according to applicable principles of statutory or
9 common law liability, other than such affected person, to conduct the
10 off-site investigation and remediation if hazardous waste and/or petro-
11 leum that have migrated from the affected site pose a significant threat
12 to public health or the environment. If such responsible person fails
13 to undertake or undertakes and fails to complete such off-site investi-
14 gation and/or remediation, the state is authorized to use moneys from
15 the remedial program transfer fund established pursuant to section nine-
16 ty-seven-yyy of the state finance law to undertake the investigation
17 and/or remediation of such contamination. The state's costs incurred
18 relative to such off-site contamination shall be recoverable from the
19 person or persons responsible.
20 4. The commissioner shall use best efforts to approve, modify or
21 reject a proposed work plan within sixty days from its receipt,
22 provided, however, that the commissioner shall use best efforts to
23 approve, modify or reject a proposed work plan for remediation, other
24 than a work plan for an interim remedial measure, within sixty days
25 after the end of the comment period or the close of the public meeting
26 provided by section 27-1409 of this title, whichever is later, and after
27 evaluating any comments received.
28 a. If the commissioner rejects a proposed work plan, the commissioner
29 shall notify the affected person and specify the reasons for rejecting
30 same.
31 b. If the commissioner approves or modifies such proposed work plan,
32 the commissioner shall notify the affected person, in writing, that the
33 proposed work plan has been approved or modified. If the commissioner
34 requires a modification, the affected person may agree to modify such
35 proposed work plan or withdraw it from consideration.
36 5. The affected person shall execute a voluntary agreement that shall
37 contain the matters set forth in this title. The affected person shall
38 carry out the terms of the voluntary agreement.
39 6. Nothing herein shall prohibit or limit the department from termi-
40 nating a voluntary agreement at any time during its implementation if
41 the affected person subject to such voluntary agreement fails to comply
42 substantially with such agreement's terms and conditions.
43 7. Nothing herein shall require the department to enter into a volun-
44 tary agreement with any person.
45 § 27-1409. Citizen participation/public notification.
46 1. The department shall place a notification of receipt of a request
47 to participate in the voluntary cleanup program pursuant to this title
48 in the environmental notice bulletin.
49 2. Upon the department's finalization of a work plan for investi-
50 gation, the department must notify individuals, groups and/or organiza-
51 tions that have expressed interest in or are affected by the work plan
52 of such work plan, and must publish a notice in the environmental notice
53 bulletin. Further, upon the satisfactory completion of the investigation
54 performed under such voluntary agreement, the department must notify
55 individuals, groups and/or organizations that have expressed interest in
S. 6257 56 A. 9759
1 or are affected by the voluntary agreement and publish a notice in the
2 environmental notice bulletin regarding such satisfactory completion.
3 3. Before the department finalizes a proposed work plan for remedi-
4 ation, other than a work plan for an interim remedial measure, the
5 department must notify individuals, groups and organizations that have
6 expressed interest in or are affected by the proposed work plan of the
7 proposed work plan for remediation and publish a notice requesting
8 comments concerning the proposed work plan in the environmental notice
9 bulletin. Such notice shall provide for a forty-five day public comment
10 period following publication of the notice required under this section.
11 The department shall hold a public meeting on the proposed work plan if
12 the commissioner has found that the affected site constitutes a signif-
13 icant threat to the public health or environment.
14 § 27-1411. Covenant not to sue.
15 1. After the affected person has successfully completed the implemen-
16 tation of a work plan and where such affected person can certify that
17 the remedial goal of the voluntary cleanup program, both on the affected
18 site and, if required by this title, such areas off-site which are or
19 have been impacted by on-site contamination, has been achieved and that
20 the requirements of such work plan as well as the relevant provisions of
21 paragraph b of subdivision two of section 27-1407 of this title have
22 been satisfied, such affected person shall submit to the department a
23 written certification prepared by an individual licensed or otherwise
24 authorized in accordance with article one hundred forty-five of the
25 education law to practice the profession of engineering substantiating
26 that the affected site meets the remedial goal of the voluntary cleanup
27 program as set forth in this title and that the requirements of such
28 work plan as well as the relevant provisions of paragraph b of subdivi-
29 sion two of section 27-1407 of this title have been satisfied.
30 2. Upon the department's receipt of such certification, the department
31 shall review the final report, the certification and the data submitted
32 pursuant to the voluntary agreement as well as any other relevant infor-
33 mation regarding the affected site. The department shall provide the
34 affected person, upon its satisfaction that the remedial goal of the
35 voluntary cleanup program and the requirements of the work plan as well
36 as the relevant provisions of paragraph b of subdivision two of section
37 27-1407 of this title for the affected site and, if required under this
38 title, such areas off-site which are or have been impacted by on-site
39 contamination have been achieved, with a covenant not to sue, binding
40 upon the state, for any liability, including any future liability or
41 claim for the further remediation of hazardous waste and/or petroleum at
42 or from the affected site that was the subject of such voluntary agree-
43 ment except that a person responsible for the affected site's remedi-
44 ation pursuant to applicable principles of statutory and common law
45 liability, unless such liability arises solely from ownership or opera-
46 tion of the affected site subsequent to the disposal of hazardous waste
47 or the discharge of petroleum, shall not receive a release for natural
48 resource damages. Additionally, the state nonetheless shall reserve all
49 of its rights concerning, and such covenant shall not extend to, any
50 further investigation and/or remediation the department deems necessary,
51 as a result of:
52 a. a failure to comply with the terms and conditions of the voluntary
53 agreement;
54 b. a fraudulent demonstration that the cleanup levels identified
55 pursuant to the voluntary agreement were reached;
S. 6257 57 A. 9759
1 c. a release or threatened release at the affected site subsequent to
2 the effective date of the voluntary agreement;
3 d. a change in the affected site's use subsequent to the effective
4 date of the voluntary agreement to a use requiring a lower level of
5 residual contamination unless additional remediation is undertaken which
6 shall meet the standard for protection of the public health and environ-
7 ment that applies under this title;
8 e. information received, in whole or in part, after the department's
9 execution of such voluntary agreement, which indicates that the activ-
10 ities performed, or to be performed, under such voluntary agreement will
11 not be, or are not, protective of the public health or environment for
12 such use of the affected site; or
13 f. the department determines that environmental conditions at the
14 affected site are not protective of the public health or environment.
15 3. The reservation contained in paragraph d of subdivision two of this
16 section shall not be reserved in the event that the level of soil
17 contamination at the affected site is less than that set forth in soil
18 category 1, as that term is described in paragraph a of subdivision
19 three of section 27-1316 of this article.
20 4. The reservation contained in paragraph f of subdivision two of this
21 section shall not be reserved for an affected person who is not respon-
22 sible for the remediation of the affected site pursuant to applicable
23 principles of statutory or common law liability, or who is liable solely
24 as a result of ownership or operation of the affected site subsequent to
25 the disposal of hazardous waste or the discharge of petroleum, in the
26 event that such affected person remediates soil contamination to soil
27 category 1, as that term is described in paragraph a of subdivision
28 three of section 27-1316 of this article.
29 5. The covenant not to sue issued pursuant to this section shall
30 extend to the affected person's successors or assigns through acquisi-
31 tion of title to the affected site to which the covenant applies and to
32 a person who develops or otherwise occupies the affected site, provided
33 that such persons act in good faith to adhere to the requirements of
34 such voluntary agreement. However, such covenant does not extend, and
35 cannot be transferred, to a person who is responsible for the disposal
36 of hazardous waste or the discharge of petroleum according to applicable
37 principles of statutory or common law liability as of the effective date
38 of the voluntary agreement unless that person was party to the voluntary
39 agreement on which such covenant was based. A notice of the voluntary
40 agreement containing such covenant shall be recorded and indexed as a
41 declaration of covenant in the office of the recording officer for the
42 county or counties where such affected site is located in the manner
43 prescribed by article nine of the real property law within thirty days
44 of signing the voluntary agreement if the affected person is an owner or
45 within thirty days of acquiring title to the affected site if the
46 affected person is a prospective purchaser.
47 6. The provisions of this title shall not affect an action or a claim,
48 including a claim for contribution, that an affected person who imple-
49 ments or completes a voluntary agreement executed by such affected
50 person and the department pursuant to this title has or may have against
51 a third party.
52 7. Nothing in this section shall be construed to affect either the
53 liability of any person with respect to any costs, damages, or investi-
54 gative or remedial activities that are not included in the voluntary
55 agreement; or the department's authority to maintain an action or
S. 6257 58 A. 9759
1 proceeding against any person who is not subject to the voluntary agree-
2 ment.
3 8. An affected person who has settled its liability to the department
4 under this section shall not be liable for claims for contribution
5 regarding matters addressed in the voluntary agreement. Such settlement
6 does not discharge any of the persons responsible under law to investi-
7 gate and remediate the hazardous waste unless its terms so provide, but
8 it reduces the potential liability of the others by the amount of the
9 settlement.
10 9. Nothing in this section shall be construed to affect the authority
11 of the department to reach settlement with other persons consistent with
12 its authority under applicable law.
13 10. An affected person who implements a voluntary agreement executed
14 by such affected person and the department pursuant to this title shall
15 not be held liable for claims for contribution concerning matters
16 addressed in such voluntary agreement.
17 § 27-1413. Remediation certificate.
18 1. Upon the department's determination pursuant to subdivision two of
19 section 27-1411 of this title that the remedial goal of the voluntary
20 cleanup program as well as the requirements of the work plan and rele-
21 vant requirements set forth in paragraph b of subdivision two of section
22 27-1407 of this title for the affected site and, if required under this
23 title, such areas off-site which are or have been impacted by on-site
24 contamination have been achieved, the affected person may apply to the
25 commissioner for a remediation certificate that certifies that the
26 requirements under this title for the affected site have been achieved
27 which would warrant the allowance of a credit under section twenty-one
28 of the tax law.
29 2. Such application shall be on a form provided by the department,
30 shall be certified under penalty of perjury, and shall include but not
31 be limited to, a statement from a certified public accountant detailing
32 the site preparation costs, as that term is defined in section twenty-
33 one of the tax law, required to be paid or incurred in order to qualify
34 for a remediation certificate.
35 3. The commissioner shall issue a remediation certificate if such
36 affected person is either (i) not a person responsible for the remedi-
37 ation of hazardous waste or the discharge of petroleum at the affected
38 site according to applicable principles of statutory or common law
39 liability, or (ii) a person responsible for the remediation of hazardous
40 waste or the discharge of petroleum at the affected site according to
41 applicable principles of statutory or common law liability if such
42 person's liability arises solely from ownership or operation of the
43 affected site subsequent to the disposal of hazardous waste or the
44 discharge of petroleum.
45 4. Such remediation certificate shall state:
46 a. that the affected person is eligible pursuant to paragraph (i) or
47 (ii) of subdivision three of this section for a credit under section
48 twenty-one of the tax law;
49 b. that the affected person has satisfactorily completed the activ-
50 ities required by the voluntary agreement and this title. Further, in
51 the event that cleanup of the soil to soil category 2 or soil category
52 3, as those terms are described in paragraph a of subdivision three of
53 section 27-1316 of this article would be protective of public health and
54 the environment in accordance with subparagraph (ii) of paragraph b of
55 subdivision one of section 27-1407 of this title, and the affected
56 person remediated the soil to soil category 1 as that term is described
S. 6257 59 A. 9759
1 in paragraph a of subdivision three of section 27-1316 of this article,
2 the remediation certificate shall indicate that the affected person is
3 eligible to receive an additional two percent credit pursuant to para-
4 graph four of subdivision (a) of section twenty-one of the tax law; and
5 c. the department's determination regarding the amount that the
6 affected person has expended for site preparation costs, as that term is
7 defined in section twenty-one of the tax law, required to be paid or
8 incurred in order to qualify for a remediation certificate.
9 5. If the affected person has leased the property and such lessee is
10 (i) not a person responsible for the remediation of hazardous waste or
11 the discharge of petroleum at the affected site according to applicable
12 principles of statutory or common law liability, or (ii) a person
13 responsible for the remediation of hazardous waste or the discharge of
14 petroleum at the affected site according to applicable principles of
15 statutory or common law liability if such person's liability arises
16 solely from ownership or operation of the affected site subsequent to
17 the disposal of hazardous waste or the discharge of petroleum, the reme-
18 diation certificate shall also include a statement indicating that the
19 lessee is a person as set forth in this subdivision.
20 6. A remediation certificate issued pursuant to subdivision three of
21 this section may be modified or revoked by the commissioner upon a find-
22 ing that:
23 a. the affected person has failed to comply with the terms and condi-
24 tions of the voluntary agreement;
25 b. the affected person fraudulently demonstrated that the cleanup
26 levels identified in the voluntary agreement were reached; or
27 c. there is good cause for such modification or revocation.
28 7. Upon the commissioner's determination pursuant to subdivision three
29 or six of this section, the commissioner shall provide the affected
30 person with notice of such determination and notice of the right to
31 appeal such determination. The commissioner's determination shall be
32 final unless a hearing is requested by certified mail to the commission-
33 er within thirty days after receiving notice of such determination.
34 After such hearing the commissioner shall give notice of final determi-
35 nation to such affected person. The commissioner may promulgate regu-
36 lations to effectuate the purposes of this section. The commissioner
37 shall promptly notify the commissioner of taxation and finance when such
38 a determination pursuant to such subdivision six of this section has
39 become final and is no longer subject to judicial appeal.
40 § 27-1415. Payment of state costs.
41 1. Pursuant to timetables contained in the voluntary agreement, the
42 affected person shall pay all state costs incurred in negotiating and
43 overseeing implementation of such agreement. In addition, if such
44 affected person is responsible for the disposal of hazardous waste or
45 the discharge of petroleum according to applicable principles of statu-
46 tory or common law liability, unless such liability arises solely from
47 ownership or operation of the affected site subsequent to the disposal
48 of hazardous waste or the discharge of petroleum, such affected person
49 shall pay all costs incurred by the state up to the effective date of
50 such voluntary agreement.
51 2. Payment of such state costs identified in subdivision one of this
52 section shall be made to the remedial program transfer fund established
53 pursuant to section ninety-seven-yyy of the state finance law.
54 3. In the event that either the affected person or the department
55 withdraw from a voluntary agreement before such agreement's completion,
56 or upon completion of the activities undertaken pursuant to the volun-
S. 6257 60 A. 9759
1 tary agreement, all unexpended moneys which the affected person shall
2 have paid into such account shall be reimbursed to the affected person
3 after a final accounting of all claims upon such affected person's
4 payments.
5 § 27-1417. Change of use.
6 1. At least sixty days before the start of physical alteration or
7 construction constituting a change of use at an affected site which is
8 the subject of a covenant not to sue issued pursuant to section 27-1411
9 of this title, or at least sixty days before a change of use involving
10 any physical alteration or construction, as the case may be, the owner
11 or the person or entity proposing to make such change of use shall
12 provide written notification to the department.
13 2. No person shall engage in any activity at an affected site remedi-
14 ated pursuant to this title that is not consistent with restrictions
15 placed upon the use of the property, or that will, or that reasonably is
16 anticipated to: prevent or interfere significantly with a proposed,
17 ongoing, or completed project under this title; or expose the public
18 health or the environment to a significantly increased threat of harm or
19 damage at such affected site.
20 3. For the purposes of this section:
21 a. "change of use" means the transfer of title to all or part of an
22 affected site being addressed under this title, or any activity that is
23 likely to disrupt or expose hazardous waste and/or petroleum or to
24 increase direct human exposure to hazardous waste and/or petroleum; or
25 any other conduct that will or may tend to significantly interfere with
26 an ongoing or completed project under this title.
27 b. "complete notice" means a notice that adequately apprises the
28 department of the contemplated change and how such change may affect the
29 property's proposed, ongoing, or completed remediation including but not
30 limited to the ability to implement the engineering and institutional
31 controls associated with the affected site's remediation.
32 § 27-1419. Immunity.
33 Section eight of the court of claims act or any other provision of law
34 to the contrary notwithstanding, the state shall be immune from liabil-
35 ity and action with respect to any act or omission done in the discharge
36 of the department's responsibilities pursuant to this title; provided,
37 however, that this section shall not limit the liability which may
38 otherwise exist for the unlawful, willful or malicious acts or omissions
39 on the part of the state, state agencies, or their officers, employees
40 or agents; or for the ownership or responsibility for the disposal of
41 hazardous waste and/or petroleum according to law.
42 § 27-1421. Permit waivers.
43 The department, by and through the commissioner, shall be authorized
44 to exempt a person from the requirement to obtain any state or local
45 permit or other authorization for any activity needed to implement a
46 program for the investigation and/or remediation of hazardous waste
47 and/or petroleum; provided, that the activity is conducted in a manner
48 which satisfies all substantive technical requirements applicable to
49 like activity conducted pursuant to a permit.
50 § 27-1423. Access to sites.
51 The department, by and through the commissioner, shall be authorized
52 to:
53 1. Require that any person permit a duly designated officer or employ-
54 ee of the department or of a municipal corporation, or any agent,
55 consultant or contractor of the department or of a municipal corpo-
56 ration, or any other person, including an employee, agent, consultant or
S. 6257 61 A. 9759
1 contractor of a responsible person acting at the direction of the
2 department, so authorized in writing by the commissioner, to enter upon
3 any property which has or may have been the site of hazardous waste
4 and/or petroleum disposal, and/or areas near such site, for the follow-
5 ing purposes:
6 a. to inspect and take samples of such hazardous waste and/or petrole-
7 um and/or environmental media, utilizing such sampling methods as may be
8 necessary or appropriate including without limitation soil borings and
9 monitoring wells; provided, that no sampling methods involving the
10 substantial disturbance of the ground surface of such property may be
11 utilized until after a minimum of ten days written notice thereof shall
12 have been provided to the owner and operator and occupant of such prop-
13 erty, if identifiable by reasonable efforts, unless the commissioner
14 makes a written determination that such notice will not allow the
15 protection of the public health or the environment, in which case two
16 days written notice shall be sufficient;
17 b. to implement the investigation and/or remediation of hazardous
18 waste and/or petroleum and/or environmental media; provided, that no
19 such work may be undertaken until after a minimum of ten days written
20 notice thereof shall have been provided to the owner and operator and
21 occupant of such property, if identifiable by reasonable efforts, unless
22 the commissioner makes a written determination that such notice will not
23 allow the protection of the public health or the environment, in which
24 case two days written notice shall be sufficient.
25 2. a. Require that any person furnish to the department, in a form and
26 manner as prescribed by the department, information relating to the
27 current and past hazardous waste and/or petroleum generation, treatment,
28 storage, disposal and/or transportation activities of such person or any
29 other person now or formerly under the control of such person; in the
30 event such person cannot comply therewith, in whole or in part, such
31 person shall furnish to the department information describing all
32 efforts made by such person to comply therewith; any information so
33 furnished to the department shall be considered a "written instrument"
34 as defined in subdivision three of section 175.00 of the penal law;
35 b. Require that any person permit a duly designated officer or employ-
36 ee of the department at all reasonable times to have access to and to
37 copy all books, papers, documents and records relating to the current
38 and past hazardous waste and/or petroleum generation, treatment, stor-
39 age, disposal and/or transportation activities of such person or any
40 person now or formerly under the control of such person;
41 c. Require, by subpoena issued in the name of the department, the
42 production of books, papers, documents and other records, and the rendi-
43 tion of testimony by deposition under oath of any person relating to the
44 current and past hazardous waste and/or petroleum generation, treatment,
45 storage, disposal and/or transportation activities of such person or any
46 person now or formerly under the control of such person; such subpoenas
47 and depositions shall be regulated by the civil practice law and rules;
48 the commissioner may invoke the powers of the supreme court of the state
49 of New York or any other court of competent jurisdiction to compel
50 compliance therewith.
51 § 15. Subdivision 8 of section 52-0101 of the environmental conserva-
52 tion law, as added by chapter 512 of the laws of 1986, is amended to
53 read as follows:
54 8. "Hazardous waste" shall have the definition set forth in [title
55 nine of article twenty-seven] section 27-1301 of this chapter.
S. 6257 62 A. 9759
1 § 16. Subdivision 1 of section 52-0103 of the environmental conserva-
2 tion law, as amended by chapter 9 of the laws of 1994, is amended to
3 read as follows:
4 1. For remediation of hazardous waste sites, as set forth in title
5 three of this article and for the closure of municipal landfills, as set
6 forth in title five of article fifty-four of this chapter, one billion
7 two hundred million dollars of which[: (i)] up to one hundred million
8 dollars shall be made available for state assistance payments toward the
9 cost of the closure of municipal landfills, as set forth in title five
10 of article fifty-four of this chapter; [and (ii) up to one hundred thou-
11 sand dollars shall be made available for the study of hazardous
12 substance waste disposal sites, as defined in section 27-1316 of this
13 chapter;] and
14 § 17. Section 71-2705 of the environmental conservation law, as added
15 by chapter 550 of the laws of 1980 and subdivision 1 as amended by chap-
16 ter 493 of the laws of 1985, is amended to read as follows:
17 § 71-2705. Violations of section 27-1423 and titles 9, 11 and 13 of
18 article 27 of this chapter.
19 1. Civil and administrative sanctions. Any person who violates any of
20 the provisions of, or who fails to perform any duty imposed by section
21 27-1423 and titles 9, 11 and 13 of article 27 or any rule or regulation
22 promulgated pursuant thereto, or any term or condition of any certif-
23 icate or permit issued pursuant thereto, or any final determination or
24 order of the commissioner made pursuant to this title shall be liable in
25 the case of a first violation, for a civil penalty not to exceed twen-
26 ty-five thousand dollars and an additional penalty of not more than
27 twenty-five thousand dollars for each day during which such violation
28 continues, to be assessed by the commissioner after an opportunity to be
29 heard pursuant to the provisions of section 71-1709 of this [chapter]
30 article, or by the court in any action or proceeding pursuant to section
31 71-2727 of this [chapter] article, and, in addition thereto, such person
32 may by similar process be enjoined from continuing such violation and
33 any permit or certificate issued to such person may be revoked or
34 suspended or a pending renewal application denied. In the case of a
35 second and any further violation, the liability shall be for a civil
36 penalty not to exceed fifty thousand dollars for each such violation and
37 an additional penalty not to exceed fifty thousand dollars for each day
38 during which such violation continues.
39 2. Criminal sanctions. Any person who, having any of the culpable
40 mental states defined in section 15.05 of the penal law, shall violate
41 any of the provisions of or who fails to perform any duty imposed by
42 section 27-1423 and titles 9, 11 and 13 of article 27 or any rules and
43 regulations promulgated pursuant thereto, or any term or condition of
44 any certificate or permit issued pursuant thereto, or any final determi-
45 nation or order of the commissioner made pursuant to this title shall be
46 guilty of a misdemeanor and, upon conviction thereof, shall for a first
47 conviction be punished by a fine not to exceed twenty-five thousand
48 dollars per day of violation or by imprisonment for a term of not more
49 than one year, or both such fine and imprisonment. If the conviction is
50 for an offense committed after a first conviction of such person under
51 this subdivision, punishment shall be by a fine not to exceed fifty
52 thousand dollars per day of violation, or by imprisonment for not more
53 than two years or by both such fine and imprisonment.
54 § 18. Subdivision 1 of section 71-2727 of the environmental conserva-
55 tion law, as amended by chapter 671 of the laws of 1986, is amended to
56 read as follows:
S. 6257 63 A. 9759
1 1. The commissioner, after investigation, notice and an opportunity to
2 be heard, may issue, modify and revoke orders prohibiting violations of
3 any of the provisions of article [27 or 71] twenty-seven or seventy-one
4 of this chapter or of any rule or regulation promulgated pursuant there-
5 to and requiring the taking of such remedial measures as may be neces-
6 sary or appropriate. Nothing herein contained shall be deemed to
7 preclude the disposition of any matter within the department's jurisdic-
8 tion under article twenty-seven of this chapter by stipulation, agreed
9 settlement, consent order, default, or other informal method, upon such
10 terms and subject to such conditions and limitations as the commissioner
11 may deem just.
12 § 19. Article 71 of the environmental conservation law is amended by
13 adding a new title 36 to read as follows:
14 TITLE 36
15 PROTECTION OF NATURAL RESOURCES
16 Section 71-3601. Declaration of policy and statement of purpose.
17 71-3603. Definition.
18 71-3605. Environmental easements; certain common law rules not
19 applicable.
20 71-3607. Procedures for modifying or extinguishing environmental
21 easement.
22 71-3609. Scope of this title.
23 71-3611. Severability.
24 § 71-3601. Declaration of policy and statement of purpose.
25 The legislature hereby finds and declares that in order to implement
26 the state policy of conserving, improving and protecting natural
27 resources and the environment and controlling water, land and air
28 pollution, the imposition of institutional controls on affected real
29 property is fundamental to the enhancement of the health, safety and
30 welfare of the people of the state and their overall economic and social
31 well being.
32 § 71-3603. Definition.
33 When used in this title, "environmental easement" means an easement,
34 covenant, restriction or other interest in real property, created under
35 and subject to the provisions of this title which limits or restricts
36 development, management or use of such real property for the purpose of
37 protecting the public health or safety or natural resources or the envi-
38 ronment from pollution affecting the real property in a manner consist-
39 ent with the public policy and purpose set forth in section 71-3601 of
40 this title; provided that no such easement shall be acquired or held by
41 the state which is subject to the provisions of article fourteen of the
42 constitution.
43 § 71-3605. Environmental easements; certain common law rules not appli-
44 cable.
45 1. An environmental easement may be created or conveyed only by an
46 instrument which complies with the requirements of section 5-703 of the
47 general obligations law and which is subscribed by the grantee. It shall
48 be of perpetual duration unless otherwise provided in such instrument.
49 2. An environmental easement shall be modified or extinguished only
50 pursuant to the provisions of section 71-3607 of this title. Any such
51 modification or extinguishment shall set forth in an instrument which
52 complies with the requirements of section 5-703 of the general obli-
53 gations law or in an instrument filed in a manner prescribed for record-
54 ing a conveyance of real property pursuant to section two hundred nine-
55 ty-one of the real property law.
S. 6257 64 A. 9759
1 3. (a) An environmental easement shall be held only by the state,
2 except that the state shall not be authorized or empowered to acquire or
3 hold any environmental easement which is subject to the provisions of
4 article fourteen of the constitution.
5 (b) Any environmental easement created pursuant to this title shall
6 not limit, restrict or modify the right to construct, operate or contin-
7 ue the use of any facility, or impede any activity, duly authorized
8 under the applicable provisions of the federal natural gas act (15
9 U.S.C. §§ 717-717w).
10 4. An environmental easement shall be duly recorded and indexed as
11 such in the office of the recording officer for the county or counties
12 where the land is situate in the manner prescribed by article nine of
13 the real property law. The easement shall describe the property encum-
14 bered by the easement by adequate legal description or by reference to a
15 recorded map showing its boundaries and bearing the seal and signature
16 of a licensed land surveyor, or if the easement encumbers the entire
17 property described in a deed of record, the easement may incorporate by
18 reference the description in such deed, otherwise it shall refer to the
19 liber and page of the deed or deeds of the record owner or owners of the
20 real property burdened by the environmental easement. An instrument for
21 the purpose of creating, conveying, modifying or terminating an environ-
22 mental easement shall not be effective unless recorded. The department
23 shall maintain a file of environmental easements.
24 5. An environmental easement may be enforced in law or equity by its
25 grantor or by the state, and is enforceable against the owner of the
26 burdened property. Enforcement shall not be defeated because of any
27 subsequent adverse possession, laches, estoppel or waiver. No general
28 law of the state which operates to defeat the enforcement of any inter-
29 est in real property shall operate to defeat the enforcement of any
30 environmental easement unless such general law expressly states the
31 intent to defeat the enforcement of such easement or provides for the
32 exercise of the power of eminent domain. It is not a defense in any
33 action to enforce an environmental easement that:
34 (a) It is not appurtenant to an interest in real property;
35 (b) It is not of a character that has been recognized traditionally at
36 common law;
37 (c) It imposes a negative burden;
38 (d) It imposes affirmative obligations upon the owner of any interest
39 in the burdened property;
40 (e) The benefit does not touch or concern real property; or
41 (f) There is no privity of estate or of contract.
42 6. Agents, employees, or other representatives of the state may enter
43 and inspect the property burdened by an environmental easement in a
44 reasonable manner and at reasonable times to assure compliance with the
45 restriction.
46 7. The department may promulgate regulations establishing standards
47 for environmental easements.
48 8. Written notice shall be provided to the director of the budget and
49 notice published in the state register and the environmental notice
50 bulletin at least thirty days prior to the acquisition, or entry into a
51 contract for the acquisition, on behalf of the state of any environ-
52 mental easement.
53 § 71-3607. Procedures for modifying or extinguishing environmental ease-
54 ment.
55 1. An environmental easement held by the state may only be modified or
56 extinguished:
S. 6257 65 A. 9759
1 (a) as provided in the instrument creating the easement; or
2 (b) in a proceeding pursuant to section nineteen hundred fifty-one of
3 the real property actions and proceedings law; or
4 (c) upon the exercise of the power of eminent domain; or
5 (d) where land subject to an environmental easement or an interest in
6 such land is required for a major utility transmission facility which
7 has received a certificate of environmental compatibility and public
8 need pursuant to article seven of the public service law or is required
9 for a major steam electric generating facility which has received a
10 certificate of environmental compatibility and public need pursuant to
11 article eight of the public service law or is required for a major elec-
12 tric generating facility which has received a certificate of environ-
13 mental compatibility and public need pursuant to article ten of the
14 public service law, upon the filing of such certificate in a manner
15 prescribed for recording a conveyance of real property pursuant to
16 section two hundred ninety-one of the real property law or any other
17 applicable provision of law; provided, the commissioner shall have made
18 and filed in the main office of the department a certificate that the
19 exercise of such easement is no longer necessary to the accomplishment
20 of its purpose, and consenting to the modification or extinguishment
21 thereof.
22 2. Where an environmental easement is modified or extinguished pursu-
23 ant to paragraph (d) of subdivision one of this section, such easement
24 shall be modified or extinguished only to the minimum extent necessary
25 to accommodate the facility which is the subject of the certificate of
26 environmental compatibility and public need.
27 3. Nothing in this section shall be construed to preclude the extin-
28 guishment or modification of an environmental easement pursuant to the
29 applicable provisions of the federal natural gas act (15 U.S.C. §§ 717-
30 717w).
31 § 71-3609. Scope of this title.
32 This title shall not affect any interests or rights in real property
33 which are not environmental easements, and shall not affect the rights
34 of owners to convey any interests in real property which they could now
35 create under existing law without reference to the terms of this title.
36 Nothing in this title shall diminish the powers granted by any other law
37 to acquire interests or rights in real property by purchase, gift,
38 eminent domain or otherwise and to use the same for public purposes.
39 Nothing in this title shall be construed to alter the authority other-
40 wise available to the state to acquire environmental easements for the
41 purposes of section 71-3601 of this title by eminent domain.
42 § 71-3611. Severability.
43 The provisions of this title shall be severable, and if any clause,
44 sentence, paragraph, subdivision or part of this title shall be adjudged
45 by any court of competent jurisdiction to be invalid, such judgment
46 shall not affect, impair or invalidate the remainder thereof, but shall
47 be confined in its operation to the clause, sentence, paragraph, subdi-
48 vision or part thereof directly involved in the controversy in which
49 such judgment shall have been rendered; provided that if an environ-
50 mental easement created pursuant to this title is determined by any
51 court of competent jurisdiction to be land or water or an interest in
52 land or water subject to the provisions of article fourteen of the
53 constitution then the authority of the state to hold or acquire such
54 easement and the conveyance to the state of such easement shall be void
55 ab initio.
S. 6257 66 A. 9759
1 § 20. The section heading of section 213 of the civil practice law
2 and rules, as amended by chapter 43 of the laws of 1975, is amended to
3 read as follows:
4 Actions to be commenced within six years: where not otherwise provided
5 for; on contract; on sealed instrument; on bond or note, and mortgage
6 upon real property; by state based on misappropriation of public proper-
7 ty; based on mistake; by corporation against director, officer or stock-
8 holder; based on fraud; by state based on claims pursuant to subdivision
9 ten of section 27-1313 of the environmental conservation law; by state
10 based on injury to, or destruction of, or loss of, or loss of use of
11 natural resources.
12 § 21. Section 213 of the civil practice law and rules is amended by
13 adding three new subdivisions 9, 10 and 11 to read as follows:
14 9. an action by the state under authority of subdivision ten of
15 section 27-1313 of the environmental conservation law; the time within
16 which the action must be commenced shall be computed from the initiation
17 of physical on-site construction of the remedial program.
18 10. an action for contribution under authority of subdivision eleven
19 of section 27-1313 of the environmental conservation law; the time with-
20 in which such action must be commenced shall be computed from the later
21 of:
22 a. the date of judgment in any action under any law, state or federal,
23 respecting the costs that are the subject of the claim for contribution;
24 or
25 b. the date of the issuance of an order or agreement by the department
26 of environmental conservation respecting the costs that are the subject
27 of the claim for contribution or respecting activities the conduct of
28 which caused the expenditure of the costs that are the subject of the
29 claim for contribution.
30 11. an action under authority of subdivision twelve of section 27-1313
31 of the environmental conservation law; the time within which the action
32 must be commenced shall be computed from the completion of the
33 construction of the inactive hazardous waste disposal site remedial
34 program.
35 § 22. The general municipal law is amended by adding a new section
36 970-r to read as follows:
37 § 970-r. State assistance: brownfield redevelopment area planning. 1.
38 Definitions. a. "Brownfield redevelopment area" is an area where: a
39 number of abandoned, idled or under-utilized properties are clustered in
40 a geographic location; contamination by hazardous waste as defined in
41 section 27-1301 of the environmental conservation law or petroleum as
42 defined in section one hundred seventy-two of the navigation law is
43 suspected of being widespread; and the remediation of any one site
44 would not address all suspected sources of contamination and enable
45 beneficial environmental and economic use.
46 b. A "brownfield redevelopment area plan" is a plan undertaken by a
47 municipality or not-for-profit corporation to develop a strategy to
48 return a brownfield redevelopment area to productive economic use while
49 protecting human health and the environment.
50 2. The secretary of state is authorized to provide technical assist-
51 ance to municipalities and not-for-profit corporations acting in cooper-
52 ation with municipalities, to enhance their capabilities to plan the
53 redevelopment of brownfield redevelopment areas.
54 3. Within the limits of appropriations therefor, the secretary of
55 state is authorized to provide, on a competitive basis, financial
56 assistance to municipalities and not-for-profit corporations acting in
S. 6257 67 A. 9759
1 cooperation with municipalities, to advance plans for the redevelopment
2 of brownfield redevelopment areas, as follows:
3 a. in the preparation of a pre-planning study to develop information
4 necessary for designating a brownfield redevelopment area. Pre-planning
5 activities include, but are not limited to, basic information about the
6 boundaries of the area, the number and size of brownfield sites, the
7 current and anticipated uses of the properties and groundwater in the
8 area, known data about the environmental conditions of the properties,
9 ownership of the sites in the area and other information deemed relevant
10 by the secretary of state. Such study, when completed, shall be submit-
11 ted to the secretary of state. The municipality or not-for-profit
12 corporation with the approval of the municipality may then file a peti-
13 tion requesting designation of the area as a brownfield redevelopment
14 area for the approval of the secretary of state;
15 b. in the preparation of a brownfield redevelopment area plan. Plan-
16 ning activities eligible to receive funding include, but are not limited
17 to, a strategy which defines the end uses of the brownfield redevelop-
18 ment area once the properties have been remediated and revitalized,
19 including any infrastructure needs, and identifies actions required to
20 reach such proposed end-uses, and other information deemed relevant by
21 the secretary of state. Such plan must be formulated in consultation
22 with community based organizations and affected landowners. The munici-
23 pality or not-for-profit corporation with the approval of the munici-
24 pality shall submit such plan for the approval of the secretary of
25 state.
26 c. in the preparation of site assessments of properties owned by a
27 municipality or a party not responsible for the remediation of hazardous
28 waste or petroleum according to applicable principles of statutory or
29 common law liability, or a responsible party according to applicable
30 principles of statutory or common law liability if such person's liabil-
31 ity arises solely from ownership or operation of the site subsequent to
32 the disposal of hazardous waste or the discharge of petroleum in the
33 brownfield redevelopment area. Assessment activities include, but are
34 not limited to, testing of properties to determine the nature and extent
35 of the contamination (including soil and groundwater), environmental
36 assessments, the development of a proposed remediation strategy to
37 address any identified contamination and any other activities deemed
38 appropriate by the secretary in consultation with the commissioner of
39 environmental conservation. Any environmental assessment shall be
40 subject to the review and approval of the commissioner of environmental
41 conservation. State assistance payments shall not exceed seventy-five
42 percent of the cost of such plans. The secretary of state, in consulta-
43 tion with the commissioner of environmental conservation, may enter into
44 a contract with a municipality or not-for-profit corporation, including
45 such terms and conditions as the secretary of state and commissioner of
46 environmental conservation may deem appropriate, to provide the state
47 assistance.
48 4. When determining the eligibility of a municipality or not-for-pro-
49 fit corporation for such assistance, the secretary of state, in consul-
50 tation with the commissioner of environmental conservation and other
51 appropriate agencies, shall consider, among other matters, the follow-
52 ing: benefit to human health, benefit to the environment, the economic
53 benefit to the state (including new employment opportunities and new
54 public recreational resources), and the strength of local support.
55 Funding preferences shall be given to proposals for areas: with a demon-
56 strated need for restoration; that would yield economic benefit to the
S. 6257 68 A. 9759
1 state and create new jobs or a new public resource; that receive a
2 strong level of local support; and where a majority of the properties
3 are owned by a municipality or party not responsible for the remediation
4 of hazardous waste or petroleum according to applicable principles of
5 statutory or common law liability or a responsible party according to
6 applicable principles of statutory or common law liability if such
7 person's liability arises solely from ownership or operation of the site
8 subsequent to the disposal of hazardous waste or the discharge of petro-
9 leum.
10 5. The secretary of state shall provide from available monies techni-
11 cal support to municipalities and not-for-profit corporations to prepare
12 their brownfield redevelopment areas program. Such support includes but
13 is not limited to personal and non-personal services.
14 § 23. The navigation law is amended by adding a new section 172-a to
15 read as follows:
16 § 172-a. Liability exclusions. 1. Notwithstanding subdivision thir-
17 teen of section one hundred seventy-two of this article the term "owner
18 or operator" does not include a person that is a lender that, without
19 participating in the management of property, holds indicia of ownership
20 primarily to protect the security interest of the person in that proper-
21 ty; nor does it include a person that is a lender that did not partic-
22 ipate in management of property prior to foreclosure, notwithstanding
23 that the person forecloses on such property and after foreclosure,
24 sells, re-leases (in the case of a lease finance transaction), or liqui-
25 dates the property, maintains business activities, winds up operations,
26 undertakes in a non-negligent manner remedial actions under the direc-
27 tion of the department, with respect to such property, or takes any
28 other measure to preserve, protect, or prepare such property prior to
29 sale or disposition, if the person seeks to sell, re-lease (in the case
30 of a lease finance transaction), or otherwise divest the person of the
31 property at the earliest practicable commercially reasonable time, on
32 commercially reasonable terms, taking into account market conditions and
33 legal and regulatory requirements; provided, however, that such lender
34 shall not make a claim against the fund arising out of a discharge asso-
35 ciated with such property. For purposes of this subdivision:
36 (a) the term "participate in management" means actually participating
37 in the management or operational affairs of a property; and does not
38 include merely having the capacity to influence, or the unexercised
39 right to control, property operations;
40 (b) a person that is a lender and that holds indicia of ownership
41 primarily to protect a security interest in a property shall be consid-
42 ered to participate in management only if, while the borrower is still
43 in possession of the property encumbered by the security interest, the
44 person exercises decisionmaking control over the environmental compli-
45 ance related to the property, such that the person has undertaken
46 responsibility for the hazardous waste handling or disposal practices
47 related to the property; or exercises control at a level comparable to
48 that of a manager of the property, such that the person has assumed or
49 manifested responsibility for the overall management of the property
50 encompassing day-to-day decisionmaking with respect to environmental
51 compliance; or over all or substantially all of the operational func-
52 tions (as distinguished from financial or administrative functions) of
53 the property other than the function of environmental compliance;
54 (c) the term "participate in management" does not include performing
55 an act or failing to act prior to the time at which a security interest
56 is created in a property; and
S. 6257 69 A. 9759
1 (d) 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 the property; requiring a response action or other lawful means of
9 addressing the release or threatened release of a hazardous waste in
10 connection with the property prior to, during, or on the expiration of
11 the term of the extension of credit; providing financial or other advice
12 or counseling in an effort to mitigate, prevent, or cure default or
13 diminution in the value of the property; restructuring, renegotiating,
14 or otherwise agreeing to alter the terms and conditions of the extension
15 of 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 of environmental conservation, if the
20 actions do not rise to the level of participating in management (within
21 the meaning of this subdivision);
22 (e) the term "extension of credit" includes a lease finance trans-
23 action in which the lessor does not initially select the leased property
24 and does not during the lease term control the daily operations or main-
25 tenance of the property; 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;
29 (f) the term "financial or administrative function" includes a func-
30 tion such as that of a credit manager, accounts payable officer,
31 accounts receivable officer, personnel manager, comptroller, or chief
32 financial officer, or a similar function;
33 (g) the term "foreclosure" and "foreclose" means, respectively,
34 acquiring and to acquire, a property through purchase at sale under a
35 judgment or decree, power of sale, or nonjudicial foreclosure sale; a
36 deed in lieu of foreclosure, or similar conveyance from a trustee; or
37 repossession, if the property was security for an extension of credit
38 previously contracted; conveyance pursuant to an extension of credit
39 previously contracted, including the termination of a lease agreement;
40 or any other formal or informal manner by which the person acquires, for
41 subsequent disposition, title to or possession of a property in order to
42 protect the security interest of the person;
43 (h) the term "lender" means an insured depository institution (as
44 defined in 12 USC section 1813); an insured credit union (as defined in
45 12 USC section 1752); a bank or association chartered under the Farm
46 Credit Act of 1971 (12 U.S.C. 2001 et seq.); a leasing or trust company
47 that is an affiliate of an insured depository institution; any person
48 (including a successor or assignee of any such person) that makes a bona
49 fide extension of credit to or takes or acquires a security interest
50 from a nonaffiliated person; the Federal National Mortgage Association,
51 the Federal Home Loan Mortgage Corporation, the Federal Agricultural
52 Mortgage Corporation, or any other entity that in a bona fide manner
53 buys or sells loans or interests in loans; a person that insures or
54 guarantees against a default in the repayment of an extension of credit,
55 or acts as a surety with respect to an extension of credit, to a nonaf-
56 filiated person; and a person that provides title insurance and that
S. 6257 70 A. 9759
1 acquires a property as a result of assignment or conveyance in the
2 course of underwriting claims and claims settlement;
3 (i) 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 (j) 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 2. Notwithstanding subdivision thirteen of section one hundred seven-
12 ty-two of this article the term, "owner or operator" does not include
13 the state or a public corporation which acquired, and thereafter
14 retained without participating in the management of such property,
15 ownership or control involuntarily or voluntarily by virtue of its func-
16 tion as sovereign; provided, however, that such public corporation shall
17 not make a claim against the fund arising out of a discharge associated
18 with such property. Neither the state nor any public corporation shall
19 incur under this chapter any liability as to matters within the juris-
20 diction of the department as a result of actions taken in response to an
21 emergency created by the discharge or threatened discharge of petroleum
22 by another person, provided that such actions by the state or public
23 corporation did not constitute reckless, willful, wanton or intentional
24 misconduct. As used in this subdivision:
25 (a) "public corporation" means a public corporation as defined in the
26 general construction law;
27 (b) "involuntary acquisition of ownership or control" includes, but is
28 not limited to, the following:
29 (i) acquisitions by the state or a public corporation, or its agent,
30 acting as a conservator or receiver pursuant to a clear and direct stat-
31 utory mandate or regulatory authority;
32 (ii) acquisitions of assets through foreclosure and its equivalents as
33 defined in paragraph (g) of subdivision one of this section, or other-
34 wise, by the state or a public corporation in the course of administer-
35 ing a loan, loan guarantee or loan insurance program;
36 (iii) acquisitions by the state or a public corporation pursuant to
37 seizure or forfeiture authority;
38 (iv) acquisitions by the state or a public corporation as the result
39 of tax delinquency purposes; provided, that such ownership or control is
40 not retained primarily for investment purposes.
41 (c) "management participation" means that the state or a public corpo-
42 ration is actually participating in the management or operation of the
43 property but does not include the mere capacity to influence, ability to
44 influence or unexercised right to control the operation of the property.
45 Nothing contained in this subdivision affects the applicability of this
46 section in favor of a holder of a security interest according to the
47 terms thereof.
48 3. Notwithstanding subdivision thirteen of section one hundred seven-
49 ty-two of this article the term, "owner or operator" includes a fiduci-
50 ary; provided, however, that such liability on the part of a fiduciary
51 shall not exceed the assets held in the fiduciary capacity if such
52 person is not liable independently of such person's ownership as a fidu-
53 ciary or actions taken in a fiduciary capacity; provided, however, that
54 such fiduciary shall not make a claim against the fund arising out of a
55 discharge associated with such property.
S. 6257 71 A. 9759
1 (a) For purposes of this subdivision, (i) the term "fiduciary" means a
2 person acting for the benefit of another party as a bona fide trustee;
3 executor; administrator; custodian; guardian of estates or guardian ad
4 litem; receiver; conservator; committee of estates of incapacitated
5 persons; personal representative; trustee (including a successor to a
6 trustee) under an indenture agreement, trust agreement, lease, or simi-
7 lar financing agreement, for debt securities, certificates of interest
8 or certificates of participation in debt securities, or other forms of
9 indebtedness as to which the trustee is not, in the capacity of trustee,
10 the lender; or representative in any other capacity that the department,
11 after providing public notice, determines to be similar to the various
12 capacities previously described in this paragraph; and does not include
13 either a person that is acting as a fiduciary with respect to a trust or
14 other fiduciary estate that was organized for the primary purpose of, or
15 is engaged in, actively carrying on a trade or business for profit, or
16 to facilitate one or more estate plans, or because of the incapacity of
17 a natural person or a person that acquires ownership or control of a
18 property with the objective purpose of avoiding liability of the person
19 or any other person;
20 (ii) 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 (b) Nothing in this subdivision affects the rights or immunities or
25 other defenses that are available under law that are applicable to a
26 person subject to this subdivision or creates any liability for a person
27 or a private right of action against a fiduciary or any other person.
28 (c) Nothing in this subdivision applies to a person if that person,
29 acts in a capacity other than that of a fiduciary or in a fiduciary
30 capacity and in that capacity, directly or indirectly benefits from a
31 trust or fiduciary relationship; or is a beneficiary and fiduciary with
32 respect to the same fiduciary estate and as a fiduciary, receives bene-
33 fits that exceed customary or reasonable compensation, and incidental
34 benefits, permitted under other applicable law.
35 (d) This subdivision does not preclude a claim under this chapter
36 against the assets of the estate or trust administered by the fiduciary;
37 or a nonemployee agent or independent contractor retained by a fiduci-
38 ary.
39 4. Notwithstanding subdivision thirteen of section one hundred seven-
40 ty-two of this article the term, "owner or operator" includes an indus-
41 trial development agency created under the general municipal law, other
42 than one that holds bare legal title to such property; has not partic-
43 ipated with any party responsible under law for the remediation of
44 contamination in, on, or from such property to attempt to have such a
45 party avoid its remedial liability; has not exercised any contractual
46 rights it may have or had, if any, under the lease, guarantee, or any
47 other financing agreement pursuant to which the industrial development
48 agency would assume control over the actual operation of the property;
49 has not taken possession or control of the property; and does not make a
50 claim against the fund arising out of a discharge associated with such
51 property. Nothing in this subdivision affects the rights or immunities
52 or other defenses that are available under law that are applicable to a
53 person subject to this subdivision or creates any liability for a person
54 or a private right of action against an industrial development agency or
55 any other person.
S. 6257 72 A. 9759
1 5. Notwithstanding the foregoing, a person receiving a liability
2 exemption or liability limitation under subdivision one, two, three or
3 four of this section shall be deemed to have waived any claim pursuant
4 to section one hundred eighty-one of this article that such person may
5 have against the New York environmental protection and spill compen-
6 sation fund.
7 § 24. Paragraph (a) of subdivision 2 of section 176 of the navigation
8 law, as amended by chapter 584 of the laws of 1992, is amended to read
9 as follows:
10 (a) Upon the occurrence of a discharge of petroleum, the department
11 shall respond promptly and proceed to cleanup and remove the discharge
12 in accordance with environmental priorities or may, at its discretion,
13 direct the discharger to promptly cleanup and remove the discharge. The
14 department shall be responsible for cleanup and removal or as the case
15 may be, for retaining agents and contractors who shall operate under the
16 direction of that department for such purposes. Implementation of clean-
17 up and removal procedures after each discharge shall be conducted in
18 accordance with environmental priorities and procedures established by
19 the department. Such procedures shall provide:
20 (i) the objective of a cleanup and removal that the department deter-
21 mines does not constitute an immediate response cleanup shall be the
22 protection of public health and the environment, with the minimum objec-
23 tive being to eliminate or mitigate all significant threats to public
24 health and the environment presented by such discharge through proper
25 application of scientific and engineering principles; and that the reme-
26 dy must be selected upon due consideration of the following factors:
27 (A) conformance to standards and criteria that are generally applica-
28 ble, consistently applied, and officially promulgated, that are either
29 directly applicable, or that are not directly applicable but are rele-
30 vant and appropriate, unless good cause exists why conformity should be
31 dispensed with, and with consideration being given to guidance deter-
32 mined, after the exercise of engineering judgment, to be applicable;
33 (B) overall protectiveness of public health and the environment;
34 (C) short-term effectiveness;
35 (D) long-term effectiveness;
36 (E) reduction of toxicity, mobility, and volume with treatment;
37 addressing a hot spot of petroleum that permanently and significantly
38 reduces the volume, toxicity, and/or mobility of the petroleum is to be
39 preferred over a method that does not do so. The hierarchy of remedial
40 technologies shall be as set forth under section 27-0105 of the environ-
41 mental conservation law;
42 (F) cost;
43 (G) implementability;
44 (H) community acceptance; and
45 (I) land use: the current, intended, and reasonably anticipated future
46 land uses for the property and its surroundings, if ascertainable.
47 (ii) the objective of a cleanup and removal that the department deter-
48 mines does constitute an immediate response cleanup shall be to effectu-
49 ate a prompt cleanup and removal of contamination to ensure restoration
50 of the environment to pre-spill conditions. For purposes of this para-
51 graph, an immediate response cleanup shall be one that comprises a
52 discrete set of activities which can be undertaken without extensive
53 investigation and evaluation, to prevent, mitigate, or remedy environ-
54 mental damage or the consequences of environmental damage attributable
55 to the discharge.
S. 6257 73 A. 9759
1 (iii) the remediation of soil as part of any cleanup and removal of a
2 discharge under this article shall be performed in accordance with the
3 soil cleanup levels promulgated pursuant to section 27-1316 of the envi-
4 ronmental conservation law.
5 (iv) for all cleanup and removal actions other than immediate response
6 cleanups, the department shall place a notification in the environmental
7 notice bulletin and shall notify individuals, groups, and/or organiza-
8 tions that have expressed interest in or are affected by such cleanup
9 and removal actions upon the initiation of an investigation, upon the
10 successful completion of such investigation, and upon the submission of
11 a proposed remedy. The department shall accept public comments for
12 forty-five days prior to approving such remedy.
13 § 25. Paragraph (b) of subdivision 2 of section 176 of the navigation
14 law is relettered paragraph (c) and a new paragraph (b) is added to read
15 as follows:
16 (b) The department shall determine cleanup levels for contaminants in
17 the soil using site specific data until the commissioner promulgates
18 rules and regulations pursuant to section 27-1315 and subdivision five
19 of section 27-1316 of the environmental conservation law and thereafter
20 shall use the soil cleanup levels set forth in such rules and regu-
21 lations, as may be amended.
22 § 26. Section 176 of the navigation law is amended by adding a new
23 subdivision 9 to read as follows:
24 9. The department, by and through the commissioner, shall be author-
25 ized to exempt a person from the requirement to obtain any state or
26 local permit or other authorization for any activity needed to implement
27 a program for the cleanup and removal of petroleum pursuant to this
28 article; provided, that the activity is conducted in a manner which
29 satisfies all substantive technical requirements applicable to like
30 activity conducted pursuant to a permit.
31 § 27. Subdivision 1 of section 181 of the navigation law, as amended
32 by chapter 712 of the laws of 1989, is amended to read as follows:
33 1. [Any] (a) Except as provided in paragraph (e) of this subdivision,
34 any person who has discharged petroleum shall be strictly liable, with-
35 out regard to fault, for all cleanup and removal costs and all direct
36 and indirect damages, no matter by whom sustained, as defined in this
37 section. In addition to cleanup and removal costs and damages, any such
38 person who is notified of such release and who did not undertake relo-
39 cation of persons residing in the area of the discharge in accordance
40 with paragraph (c) of subdivision seven of section one hundred seventy-
41 six of this article, shall be liable to the fund for an amount equal to
42 two times the actual and necessary expense incurred by the fund for such
43 relocation pursuant to section one hundred seventy-seven-a of this arti-
44 cle. Additionally, the department shall be entitled to a penalty in an
45 amount no less than one and no more than three times all cleanup and
46 removal costs if it proves by a preponderance of the evidence that it
47 has expended reasonable efforts as set forth in this subdivision. For
48 purposes of this subdivision, the department has expended reasonable
49 efforts to obtain a voluntary commitment if such person is informed in
50 writing of the department's offer to negotiate a voluntary commitment
51 and such responsible person does not respond to the department's offer;
52 or responds by refusing to negotiate; or starts to negotiate and there-
53 after discontinues same; or acts in bad faith in the negotiation proc-
54 ess, and continues not to make such commitment after receiving a final
55 written notification from the department that apprises such responsible
56 person that failure to enter into the voluntary commitment will result
S. 6257 74 A. 9759
1 in the state's recovery of all costs, both direct and indirect, respect-
2 ing such discharge; then the state shall be entitled to recover all
3 costs, both direct and indirect, respecting such discharge that the
4 state shall have incurred plus, to the extent that the state can show by
5 a preponderance of the evidence that it has fulfilled the procedural
6 steps in this paragraph, a penalty in an amount up to three times, but
7 no less than one time, all costs, both direct and indirect, the state
8 shall have incurred in carrying out same.
9 (b) Notwithstanding paragraph (a) of this subdivision, such person
10 shall only be liable to the state for an amount equal to all costs, both
11 direct and indirect, the state shall have incurred respecting such
12 discharge if such person can establish by a preponderance of the
13 evidence that for good cause shown, it failed and refused to enter into
14 such voluntary commitment with the department.
15 (c) Two or more owners and/or persons described in paragraph (a) of
16 subdivision three of this section may claim contribution among them-
17 selves in an action brought in a court of competent jurisdiction, and
18 the amount of contribution to which any of them is entitled shall be
19 equal to the excess paid by that person over and above such person's
20 equitable share of costs. However, the amount of contribution to which
21 any of them is entitled shall be three times the excess paid by that
22 person over and above such person's equitable share of costs associated
23 with the carrying out of such person's obligations under the voluntary
24 commitment with the department described in paragraph (a) of this subdi-
25 vision if one-third of such award shall be paid to the remedial program
26 transfer fund established pursuant to section ninety-seven-yyy of the
27 state finance law and the court finds that:
28 (i) the contribution defendant is a person described in paragraph (a)
29 of this subdivision for such site;
30 (ii) the contribution plaintiff gave thirty days notice to the
31 contribution defendant of the plaintiff's intention to seek contribution
32 in the event that the contribution defendant declined to participate in
33 the implementation of the contribution plaintiff's voluntary commitment;
34 (iii) the contribution defendant failed or refused to enter into a
35 settlement agreement with the contribution plaintiff; and
36 (iv) the contribution plaintiff entered into a voluntary commitment
37 with the department to remediate the site.
38 (d) A person misidentified by the department as a person described in
39 paragraph (a) of this subdivision but which entered into a voluntary
40 commitment with the department may recover from the New York environ-
41 mental protection and spill compensation fund created under section one
42 hundred seventy-nine of this article the costs it shall have incurred
43 that are reasonable in light of the action agreed to be undertaken.
44 (e) There shall be no liability under this subdivision for a person
45 otherwise liable who can establish by a preponderance of the evidence
46 that the discharge was caused solely by an act of God; an act of war; or
47 an act or omission of a third party other than an employee or agent of
48 such person, or than one whose act or omission occurs in connection with
49 a contractual relationship, existing directly or indirectly, with such
50 person (except where the sole contractual arrangement arises from a
51 published tariff and acceptance for carriage by a common carrier or
52 rail), if such person establishes by a preponderance of the evidence
53 that such person is other than one that transports or supplies petroleum
54 and exercised due care with respect to the petroleum concerned, taking
55 into consideration the characteristics of such petroleum, in light of
56 all relevant facts and circumstances, and took precautions against fore-
S. 6257 75 A. 9759
1 seeable acts or omissions of any such third party and the consequences
2 that could foreseeably result from such acts or omissions; or any combi-
3 nation of them. For purposes of this paragraph, the term "contractual
4 relationship" includes, but is not limited to, land contracts, deeds or
5 other instruments transferring title or possession, unless the property
6 on which the discharge concerned is located was acquired by such person
7 after the discharge on, in, or at such property, and such person estab-
8 lishes one or more of the circumstances described in subparagraph (i),
9 (ii) or (iii) of this paragraph by a preponderance of the evidence:
10 (i) At the time such person acquired the property such person did not
11 know and had no reason to know that any petroleum was discharged on, in,
12 or at the property. To establish that such person had no reason to know,
13 such person must have undertaken, at the time of acquisition, all appro-
14 priate inquiry into the previous ownership and uses of the property
15 consistent with good commercial or customary practice in an effort to
16 minimize liability. For purposes of the preceding sentence, the commis-
17 sioner shall take into account any specialized knowledge or experience
18 on the part of such person, the relationship of the purchase price to
19 the value of the property if uncontaminated, commonly known or reason-
20 ably ascertainable information about the property, the obviousness of
21 the presence or likely presence of contamination at the property, and
22 the ability to detect such contamination by appropriate inspection; or
23 (ii) Such person is a government entity which acquired the property by
24 escheat, or through any other involuntary transfer or acquisition; or
25 (iii) Such person acquired the property by inheritance or bequest, and
26 that such person exercised due care with respect to the petroleum
27 concerned, taking into consideration the characteristics of such petro-
28 leum, in light of all relevant facts and circumstances and took precau-
29 tions against foreseeable acts or omissions of any such third party and
30 the consequences that could foreseeably result from such acts or omis-
31 sions.
32 (f) Nothing in this subdivision shall diminish the liability of any
33 previous owner or operator of the property who would otherwise be liable
34 under this subdivision. Notwithstanding this paragraph, if such person
35 obtained actual knowledge of the discharge at the property when such
36 person owned the property and then subsequently transferred ownership of
37 the property to another person without disclosing such knowledge, such
38 person shall be treated as a person responsible for the discharge and no
39 defense under this paragraph shall be available to such person. Nothing
40 in this paragraph shall affect the liability under this subdivision of a
41 person who, by any act or omission, caused or contributed to such
42 discharge of petroleum.
43 § 28. Subdivision 5 of section 180 of the navigation law, as amended
44 by chapter 35 of the laws of 1985, is amended and a new subdivision 6 is
45 added to read as follows:
46 5. To disburse moneys from the fund for cleanup and removal costs
47 pursuant to a certification of claims by the commissioner[.];
48 6. To submit on an annual basis to the governor and legislature within
49 sixty days of the end of the state fiscal year an independent audit of
50 the New York environmental protection and spill compensation fund.
51 § 29. Subdivision 4 of section 181 of the navigation law, as amended
52 by chapter 458 of the laws of 1978, is amended and a new subdivision 7
53 is added to read as follows:
54 4. [An] Notwithstanding subdivision one of this section and subdivi-
55 sions one, two, three and four of section one hundred seventy-two-a of
56 this article, an act or omission caused solely by war, sabotage, or
S. 6257 76 A. 9759
1 governmental negligence shall be the only defenses which may be raised
2 by any owner or operator of a major facility or vessel responsible for a
3 discharge in any action arising under the provisions of this article.
4 7. Notwithstanding the foregoing, a person receiving a liability
5 exemption or liability limitation under subdivision one of this section
6 or under subdivision one, two, three or four of section one hundred
7 seventy-two-a of this article shall be deemed to have waived any claim
8 pursuant to subdivision two of this section that such person may have
9 against the New York environmental protection and spill compensation
10 fund.
11 § 30. Section 183 of the navigation law, as added by chapter 845 of
12 the laws of 1977, is amended to read as follows:
13 § 183. Settlements. 1. The administrator shall attempt to promote and
14 arrange a settlement between the claimant and the person responsible for
15 the discharge. If the source of the discharge can be determined and
16 liability is conceded, the claimant and the alleged discharger may agree
17 to a settlement which shall be final and binding upon the parties and
18 which will waive all recourse against the fund.
19 2. After the successful implementation of an order on consent which
20 provides for the cleanup and removal of the discharge, the person
21 subject to the order shall submit to the department a written certif-
22 ication prepared by an individual licensed or otherwise authorized in
23 accordance with article one hundred forty-five of the education law to
24 practice the profession of engineering who shall have been in charge of
25 the implementation of the cleanup and removal activities undertaken
26 pursuant to such order substantiating that, at a minimum, such remedial
27 activities satisfied the remedial requirements set forth in such order.
28 3. Upon the department's receipt of such certification, the department
29 shall review the final engineering report and the data submitted pursu-
30 ant to the order as well as any other relevant information regarding the
31 discharge. The department shall provide the person, upon its satisfac-
32 tion that the remedial requirements for the discharge have been
33 achieved, with a covenant not to sue, binding upon the state, for any
34 liability, including any future liability or claim for the further
35 cleanup or removal of petroleum relating to the discharge that was the
36 subject of such order except that a person responsible for the cleanup
37 and removal of the discharge pursuant to section one hundred eighty-one
38 of this article shall not receive a release for natural resource
39 damages. Additionally, the state nonetheless shall reserve all of its
40 rights concerning, and such covenant shall not extend to, any further
41 investigation or remedial action the department deems necessary, as a
42 result of:
43 (a) a failure to comply with the terms and conditions of the order;
44 (b) a fraudulent demonstration that the cleanup levels identified in
45 the order were reached;
46 (c) a release or threatened release at the site subsequent to the
47 effective date of the order;
48 (d) a change in the site's use subsequent to the effective date of the
49 order to a use requiring a lower level of residual contamination unless
50 additional remedial activities are undertaken which shall meet the stan-
51 dard for protection of public health and the environment that applies to
52 remedial actions for such use under this article;
53 (e) information received, in whole or in part, after the department's
54 execution of such order, which indicates that the cleanup and removal
55 performed, or to be performed, under such order will not be, or is not,
S. 6257 77 A. 9759
1 protective of public health or the environment for such use of the site;
2 or
3 (f) the department determines that the remedy implemented is not
4 protective of public health or the environment.
5 4. The reservation contained in paragraph (d) of subdivision three of
6 this section shall not be reserved in the event a person remediates soil
7 contamination to soil category 1, as that term is described in paragraph
8 a of subdivision three of section 27-1316 of the environmental conserva-
9 tion law.
10 5. The reservation contained in paragraph (f) of subdivision three of
11 this section shall not be reserved for a person who is not responsible
12 for the cleanup and removal of the discharge pursuant to applicable
13 principles of statutory or common law liability, or who is liable solely
14 as a result of ownership or operation of the affected site subsequent to
15 the disposal of hazardous waste or the discharge of petroleum, in the
16 event that such person remediates soil contamination to soil category 1,
17 as that term is described in paragraph a of subdivision three of section
18 27-1316 of the environmental conservation law.
19 6. The covenant not to sue issued pursuant to this section shall
20 extend to the person's successors or assigns through acquisition of
21 title to the site to which the liability release applies and to a person
22 who develops or otherwise occupies the site, provided that such persons
23 act in good faith to adhere to the requirements of such order and work-
24 plan. However, such covenant does not extend, and cannot be transferred,
25 to a person who is responsible as of the date of the issuance of an
26 order on consent for the discharge of petroleum according to section one
27 hundred eighty-one of this article unless that person was party to the
28 order on which such covenant was based. A notice of the order containing
29 such covenant shall be recorded and indexed as a declaration of covenant
30 in the office of the recording officer for the county or counties where
31 such site is located in the manner prescribed by article nine of the
32 real property law within thirty days of signing the order if the person
33 is an owner or within thirty days of acquiring title of the site if the
34 person is a prospective purchaser.
35 7. The provisions of this title shall not affect an action or a claim,
36 including a claim for contribution, that a person who implements or
37 completes an order executed by such person and the department providing
38 for the cleanup and removal of the discharge pursuant to this article
39 has or may have against a third party.
40 8. Nothing in this section shall be construed to affect either the
41 liability of any person with respect to any costs, damages, or investi-
42 gative or remedial activities that are not included in the order; or the
43 department's authority to maintain an action or proceeding against any
44 person who is not subject to the order.
45 9. A person who has settled its liability to the department under this
46 section shall not be liable for claims for contribution regarding
47 matters addressed in the order. Such settlement does not discharge any
48 of the persons responsible under law for the cleanup and removal of the
49 discharge unless its terms so provide, but it reduces the potential
50 liability of the others by the amount of the settlement.
51 10. Nothing in this section shall be construed to affect the authority
52 of the department to reach settlement with other persons consistent with
53 its authority under applicable law.
54 § 31. Subdivisions 24, 25 and 26 of section 1281 of the public
55 authorities law, subdivision 24 as amended by chapter 857 of the laws of
56 1982, subdivision 25 as amended by chapter 295 of the laws of 1994 and
S. 6257 78 A. 9759
1 subdivision 26 as added by chapter 282 of the laws of 1979, are amended
2 to read as follows:
3 24. "Hazardous waste" shall [mean a waste which appears on the list or
4 satisfies the characteristics promulgated by the commissioner of envi-
5 ronmental conservation pursuant to section 27-0903 of the environmental
6 conservation law and until, but not after, the promulgation of such
7 list, a waste or combination of wastes, which because of its quantity,
8 concentration, or physical, chemical or infectious characteristics may:
9 a. Cause, or significantly contribute to an increase in mortality or
10 an increase in serious irreversible or incapacitating reversible
11 illness; or
12 b. Pose a substantial present or potential hazard to human health or
13 the environment when improperly treated, stored, transported, disposed
14 or otherwise managed] have the same meaning as set forth in section
15 27-1301 of the environmental conservation law.
16 25. "Inactive hazardous waste disposal site" shall [mean any area or
17 structure used for the long term storage or final placement of hazardous
18 waste including, but not limited to, dumps, landfills, lagoons and arti-
19 ficial treatment ponds, as to which area or structure no permit or
20 authorization issued by the department of environmental conservation or
21 a federal agency for the disposal of hazardous waste was in effect after
22 the effective date of this title and any inactive area or structure on
23 the National Priorities List established under the authority of 42
24 U.S.C.A. Section 9605] have the same meaning as set forth in section
25 27-1301 of the environmental conservation law.
26 26. "Inactive hazardous waste disposal site remedial program" shall
27 [mean activities undertaken to eliminate, remove, abate, control or
28 monitor health and/or environmental hazards or potential hazards in
29 connection with inactive hazardous waste disposal sites or to treat or
30 dispose of wastes and waste contaminated materials from such sites
31 including, but not limited to, grading, contouring, trenching, grouting,
32 capping, excavation, transporting, incineration, chemical treatment,
33 biological treatment or the construction of leachate collection and
34 treatment facilities] have the same meaning as set forth in section
35 27-1301 of the environmental conservation law.
36 § 32. Section 1389-a of the public health law, as added by chapter 282
37 of the laws of 1979, subdivision 1 as amended by chapter 857 of the laws
38 of 1982 and subdivision 2 as amended by chapter 295 of the laws of 1994,
39 is amended to read as follows:
40 § 1389-a. Definitions. 1. "Hazardous waste" means [a waste which
41 appears on the list or satisfies the characteristics promulgated by the
42 commissioner of environmental conservation pursuant to section 27-0903
43 of the environmental conservation law and until, but not after, the
44 promulgation of such list, or a waste or combination of wastes, which
45 because of its quantity, concentration, or physical, chemical or infec-
46 tious characteristics may:
47 a. Cause, or significantly contribute to an increase in mortality or
48 an increase in serious irreversible or incapacitating reversible
49 illness; or
50 b. Pose a substantial present or potential hazard to human health or
51 the environment when improperly treated, stored, transported, disposed
52 or otherwise managed] hazardous waste as defined in section 27-1301 of
53 the environmental conservation law.
54 2. "Inactive hazardous waste disposal site" means [any area or struc-
55 ture used for the long term storage or final placement of hazardous
56 waste including, but not limited to, dumps, landfills, lagoons and arti-
S. 6257 79 A. 9759
1 ficial treatment ponds, as to which area or structure no permit or
2 authorization issued by the department of environmental conservation or
3 a federal agency for the disposal of hazardous waste was in effect after
4 the effective date of this title and any inactive area or structure on
5 the National Priorities List established under the authority of 42
6 U.S.C.A. Section 9605] an inactive hazardous waste disposal site as that
7 term is defined in section 27-1301 of the environmental conservation
8 law.
9 3. "Inactive hazardous waste disposal site remedial program" means
10 [activities undertaken to eliminate, remove, abate, control or monitor
11 health and/or environmental hazards or potential hazards in connection
12 with inactive hazardous waste disposal sites or to treat or dispose of
13 wastes and waste contaminated materials from such sites including, but
14 not limited to, grading, contouring, trenching, grouting, capping, exca-
15 vation, transporting, incineration, chemical treatment, biological
16 treatment or construction of leachate collection and treatment facili-
17 ties] an inactive hazardous waste disposal site remedial program as that
18 term is defined in section 27-1301 of the environmental conservation
19 law.
20 4. "Person" means an individual, trust, firm, joint stock company,
21 corporation, partnership, association, state, municipality, commission,
22 political subdivision of a state, public benefit corporation or any
23 interstate body.
24 a. Such term includes any person owning or operating an inactive
25 hazardous waste disposal site but does not include a person that is a
26 lender that, without participating in the management of such site, holds
27 indicia of ownership primarily to protect the security interest of the
28 person in such site; nor does it include a person that is a lender that
29 did not participate in management of such site prior to foreclosure,
30 notwithstanding that the person forecloses on such site and after fore-
31 closure, sells, re-leases (in the case of a lease finance transaction),
32 or liquidates such site, maintains business activities, winds up oper-
33 ations, undertakes in a non-negligent manner remedial actions under the
34 direction of the department, with respect to such site, or takes any
35 other measure to preserve, protect, or prepare such site prior to sale
36 or disposition, if the person seeks to sell, re-lease (in the case of a
37 lease finance transaction), or otherwise divest the person of such site
38 at the earliest practicable commercially reasonable time, on commercial-
39 ly reasonable terms, taking into account market conditions and legal and
40 regulatory requirements. For purposes of this paragraph:
41 (i) the term "participate in management" means actually participating
42 in the management or operational affairs of such site; and does not
43 include merely having the capacity to influence, or the unexercised
44 right to control, such site's operations;
45 (ii) a person that is a lender and that holds indicia of ownership
46 primarily to protect a security interest in such site shall be consid-
47 ered to participate in management only if, while the borrower is still
48 in possession of such site, the person exercises decisionmaking control
49 over the environmental compliance related to such site, such that the
50 person has undertaken responsibility for the hazardous waste handling or
51 disposal practices related to such site; or exercises control at a level
52 comparable to that of a manager of such site, such that the person has
53 assumed or manifested responsibility for the overall management of such
54 site encompassing day-to-day decisionmaking with respect to environ-
55 mental compliance; or over all or substantially all of the operational
S. 6257 80 A. 9759
1 functions (as distinguished from financial or administrative functions)
2 of such site other than the function of environmental compliance;
3 (iii) the term "participate in management" does not include performing
4 an act or failing to act prior to the time at which a security interest
5 is created in such site;
6 (iv) the term "participate in management" does not include holding a
7 security interest or abandoning or releasing a security interest;
8 including in the terms of an extension of credit, or in a contract or
9 security agreement relating to the extension, a covenant, warranty, or
10 other term or condition that relates to environmental compliance; moni-
11 toring or enforcing the terms and conditions of the extension or credit
12 or security interest; monitoring or undertaking one or more inspections
13 of such site; requiring a response action or other lawful means of
14 addressing the release or threatened release of a hazardous waste in
15 connection with such site prior to, during, or on the expiration of the
16 term of the extension of credit; providing financial or other advice or
17 counseling in an effort to mitigate, prevent, or cure default or diminu-
18 tion in the value of such site; restructuring, renegotiating, or other-
19 wise agreeing to alter the terms and conditions of the extension of
20 credit or security interest; exercising forbearance; exercising other
21 remedies that may be available under applicable law for the breach of a
22 term or condition of the extension of credit or security agreement; or
23 conducting in a non-negligent manner a remedial action directly or under
24 the direction of the department, if the actions do not rise to the level
25 of participating in management (within the meaning of subparagraphs (i)
26 and (ii) of this paragraph);
27 (v) the term "extension of credit" includes a lease finance trans-
28 action in which the lessor does not initially select such leased site
29 and does not during the lease term control the daily operations or main-
30 tenance of such site; or that conforms with regulations issued by the
31 appropriate federal banking agency (as defined in 12 USC section 1813)
32 or the superintendent of banks or with regulations issued by the
33 National Credit Union Administrative Board, as appropriate;
34 (vi) the term "financial or administrative function" includes a func-
35 tion such as that of a credit manager, accounts payable officer,
36 accounts receivable officer, personal manager, comptroller, or chief
37 financial officer, or a similar function;
38 (vii) the terms "foreclosure" and "foreclose" mean, respectively,
39 acquiring and to acquire, such site through purchase at sale under a
40 judgment or decree, power of sale, or nonjudicial foreclosure sale; a
41 deed in lieu of foreclosure, or similar conveyance from a trustee; or
42 repossession, if such site was security for an extension of credit
43 previously contracted; conveyance pursuant to an extension of credit
44 previously contracted, including the termination of a lease agreement;
45 or any other formal or informal manner by which the person acquires, for
46 subsequent disposition, title to or possession of such site in order to
47 protect the security interest of the person;
48 (viii) the term "lender" means an insured depository institution (as
49 defined in 12 USC section 1813); an insured credit union (as defined in
50 12 USC section 1752); a bank or association chartered under the Farm
51 Credit Act of 1971 (12 U.S.C. 2001 et seq.); a leasing or trust company
52 that is an affiliate of an insured depository institution; any person
53 (including a successor or assignee of any such person) that makes a bona
54 fide extension of credit to or takes or acquires a security interest
55 from a nonaffiliated person; the Federal National Mortgage Association,
56 the Federal Home Loan Mortgage Corporation, the Federal Agricultural
S. 6257 81 A. 9759
1 Mortgage Corporation, or any other entity that in a bona fide manner
2 buys or sells loans or interests in loans; a person that insures or
3 guarantees against a default in the repayment of an extension of credit,
4 or acts as a surety with respect to an extension of credit, to a nonaf-
5 filiated person; and a person that provides title insurance and that
6 acquires such site as a result of assignment or conveyance in the course
7 of underwriting claims and claims settlements;
8 (ix) the term "operational function" includes a function such as that
9 of a facility or plant manager, operations manager, chief operating
10 officer, or chief executive officer; and
11 (x) the term "security interest" includes a right under a mortgage,
12 deed of trust, assignment, judgment lien, pledge, security agreement,
13 factoring agreement, or lease and any other right accruing to a person
14 to secure the repayment of money, the performance of a duty, or any
15 other obligation by a nonaffiliated person.
16 b. Such term includes any person owning or operating an inactive
17 hazardous waste disposal site but does not include the state of New York
18 or a public corporation which acquired, and thereafter retained without
19 participating in the management of such site, ownership or control
20 involuntarily by virtue of its function as sovereign. Neither the state
21 of New York nor any public corporation shall incur under this chapter
22 any liability as to matters within the jurisdiction of the department as
23 a result of actions taken in response to an emergency created by the
24 release or threatened release of hazardous waste by another person,
25 provided that such actions by the state or public corporation did not
26 constitute reckless, willful, wanton or intentional misconduct. As used
27 in this paragraph:
28 (i) "public corporation" means a public corporation as defined in the
29 general construction law;
30 (ii) "involuntary acquisition of ownership or control" includes but is
31 not limited to the following:
32 (A) acquisitions by the state or a public corporation in its capacity
33 as sovereign, including acquisitions pursuant to abandonment
34 proceedings, or escheat, or any other circumstance of involuntary acqui-
35 sition in its capacity as sovereign;
36 (B) acquisitions by the state or a public corporation, or its agent,
37 acting as a conservator or receiver pursuant to a clear and direct stat-
38 utory mandate or regulatory authority;
39 (C) acquisitions of assets through foreclosure and its equivalents, or
40 otherwise, by the state or a public corporation in the course of admin-
41 istering a loan, loan guarantee or loan insurance program;
42 (D) acquisitions by the state or a public corporation pursuant to
43 seizure or forfeiture authority; and
44 (E) acquisitions by the state or a public corporation as the result of
45 tax delinquency purposes, provided, that such ownership or control is
46 not retained primarily for investment purposes.
47 (iii) "management participation" means that the state or public corpo-
48 ration is actually participating in the management or operation of the
49 property but does not include the mere capacity to influence, ability to
50 influence or unexercised right to control the operation of the property.
51 Nothing contained in this paragraph affects the applicability of para-
52 graph a of this subdivision in favor of a holder of a security interest
53 according to the terms thereof.
54 c. Such term includes any person owning or operating an inactive
55 hazardous waste disposal site, including a fiduciary; provided, however,
56 that such liability on the part of a fiduciary shall not exceed the
S. 6257 82 A. 9759
1 assets held in the fiduciary capacity if such person is not liable inde-
2 pendently of such person's ownership as a fiduciary or actions taken in
3 a fiduciary capacity including, but not limited to, the fiduciary negli-
4 gently causing or contributing to the release or threatened release of
5 hazardous waste at such site.
6 (i) For purposes of this paragraph:
7 (A) the term, "fiduciary," means a person acting for the benefit of
8 another party as a bona fide trustee; executor; administrator; custo-
9 dian; guardian of estates or guardian ad litem; receiver; conservator;
10 committee of estates of incapacitated persons; personal representative;
11 trustee (including a successor to a trustee) under an indenture agree-
12 ment, trust agreement, lease, or similar financing agreement, for debt
13 securities, certificates of interest or certificates of participation in
14 debt securities, or other forms of indebtedness as to which the trustee
15 is not, in the capacity of trustee, the lender; or representative in any
16 other capacity that the department, after providing public notice,
17 determines to be similar to the various capacities previously described
18 in this paragraph; and does not include either a person that is acting
19 as a fiduciary with respect to a trust or other fiduciary estate that
20 was organized for the primary purpose of, or is engaged in, actively
21 carrying on a trade or business for profit unless the trust or other
22 fiduciary estate was created as part of, or to facilitate, one or more
23 estate plans or because of the incapacity of a natural person or a
24 person that acquires ownership or control of a property with the objec-
25 tive purpose of avoiding liability of the person or any other person.
26 (B) the term, "fiduciary capacity," means the capacity of a person in
27 holding title to a property, or otherwise having control of or an inter-
28 est in a property, pursuant to the exercise of the responsibilities of
29 the person as a fiduciary.
30 (ii) Nothing in this paragraph affects the rights or immunities or
31 other defenses that are available under law that is applicable to a
32 person subject to this subdivision; or creates any liability for a
33 person or a private right of action against a fiduciary or any other
34 person.
35 (iii) Nothing in this paragraph applies to a person if that person
36 acts in a capacity other than that of a fiduciary or in a beneficiary
37 capacity and in that capacity, directly or indirectly benefits from a
38 trust or fiduciary relationship; or is a beneficiary and a fiduciary
39 with respect to the same fiduciary estate and as a fiduciary, receives
40 benefits that exceed customary or reasonable compensation, and inci-
41 dental benefits, permitted under other applicable law.
42 d. Such term includes any person owning or operating an inactive
43 hazardous waste disposal site, including an industrial development agen-
44 cy created under the general municipal law, other than one that holds
45 bare legal title to such site; has not participated with any party
46 responsible under law for the remediation of contamination in, on, or
47 from such site to attempt to have such a party avoid its remedial
48 liability; has not exercised any contractual rights it may have or had,
49 if any, under the lease, guarantee, or any other financing agreement
50 pursuant to which the industrial development agency would assume control
51 over the actual operation of the site; and has not taken possession or
52 control of the site. Nothing in this paragraph affects the rights or
53 immunities or other defenses that are available under law that are
54 applicable to an industrial development agency; or creates any liability
55 for a person or a private right of action against an industrial develop-
56 ment agency or any other person.
S. 6257 83 A. 9759
1 5. "Waste" means [any garbage, refuse, sludge from a waste treatment
2 plant, water supply treatment plant, or air pollution control facility,
3 and other discarded material, whether or not such material may eventual-
4 ly be used for some other purpose, including solid, liquid, semisolid,
5 or contained gaseous material resulting from industrial, commercial,
6 mining and agricultural operations or from community activities, and
7 source, special nuclear or by-product material as defined in the Atomic
8 Energy Act of 1954, as amended, except as may be provided by existing
9 agreements between the state of New York and the government of the
10 United States, but does not include solid or dissolved material in
11 domestic sewage, or solid or dissolved materials in irrigation return
12 flows or industrial discharges which are point sources subject to
13 permits under article seventeen of the environmental conservation law]
14 waste as that term is defined in section 27-1301 of the environmental
15 conservation law.
16 § 33. Subdivision 4 of section 1389-b of the public health law, as
17 added by chapter 282 of the laws of 1979, is amended to read as follows:
18 4. (a) Any order issued pursuant to subdivision three of this section,
19 other than one issued on consent of the person, shall be issued only
20 after notice and the opportunity for hearing is provided to the persons
21 who may be the subject of such order. The commissioner shall determine
22 which persons are responsible pursuant to said subdivision according to
23 applicable principles of statutory or common law liability. Such persons
24 shall be entitled to raise any statutory or common law defenses at any
25 such hearing and such defenses shall have the same force and effect at
26 such hearings as they would have in a court of law. In the event a hear-
27 ing is held, no order shall be issued by the commissioner under subdivi-
28 sion three of this section until a final decision has been rendered. Any
29 such order shall be reviewable pursuant to article seventy-eight of the
30 civil practice law and rules within thirty days after service of said
31 order. The commissioner may request the participation of the attorney
32 general in such hearings.
33 (b) There shall be no liability under this section for a person other-
34 wise liable who can establish by a preponderance of the evidence that
35 the significant threat to the environment attributable to hazardous
36 waste disposed at an inactive hazardous waste disposal site was caused
37 solely by an act of God; an act of war; or an act or omission of a third
38 party other than an employee or agent of such person, or than one whose
39 act or omission occurs in connection with a contractual relationship,
40 existing directly or indirectly, with such person (except where the sole
41 contractual arrangement arises from a published tariff and acceptance
42 for carriage by a common carrier or rail), if such person establishes by
43 a preponderance of the evidence that such person exercised due care with
44 respect to the hazardous waste concerned, taking into consideration the
45 characteristics of such hazardous waste, in light of all relevant facts
46 and circumstances and took precautions against foreseeable acts or omis-
47 sions of any such third party and the consequences that could foresee-
48 ably result from such acts or omissions; or any combination of them. For
49 purposes of this paragraph, the term, "contractual relationship,"
50 includes, but is not limited to, land contracts, deeds or other instru-
51 ments transferring title or possession, unless the real property on
52 which the site concerned is located was acquired by such person after
53 the disposal or placement of the hazardous waste on, in, or at such
54 site, and such person establishes one or more of the circumstances
55 described in subparagraph (i), (ii) or (iii) of this paragraph by a
56 preponderance of the evidence:
S. 6257 84 A. 9759
1 (i) At the time such person acquired the site such person did not know
2 and had no reason to know that any hazardous waste which is the subject
3 of the significant threat determination was disposed of on, in, or at
4 the site. To establish that such person has no reason to know, such
5 person must have undertaken, at the time of acquisition, all appropriate
6 inquiry into the previous ownership and uses of such site consistent
7 with good commercial or customary practice in an effort to minimize
8 liability. For purposes of the preceding sentence, the commissioner
9 shall take into account any specialized knowledge or experience on the
10 part of such person, the relationship of the purchase price to the value
11 of the property if uncontaminated, commonly known or reasonably ascer-
12 tainable information about the property, the obviousness of the presence
13 or likely presence of contamination at the property, and the ability to
14 detect such contamination by appropriate inspection; or
15 (ii) Such person is a government entity which acquired the site by
16 escheat, or through any other involuntary transfer or acquisition; or
17 (iii) Such person acquired the site by inheritance or bequest, and
18 that such person exercised due care with respect to the hazardous waste
19 concerned, taking into consideration the characteristics of such hazard-
20 ous waste, in light of all relevant facts and circumstances and took
21 precautions against foreseeable acts or omissions of any such third
22 party and the consequences that could foreseeably result from such acts
23 or omissions.
24 § 34. Section 1389-e of the public health law is REPEALED.
25 § 35. Section 316-b of the real property law is amended by adding a
26 new subdivision 3 to read as follows:
27 3. Each recording officer shall record and index such instruments as
28 may be required to be recorded pursuant to title thirteen or fourteen of
29 article twenty-seven of the environmental conservation law, or title
30 five of article fifty-six of the environmental conservation law, or part
31 two of article twelve of the navigation law, or any regulation promul-
32 gated pursuant thereto, or any order or agreement entered into under
33 authority thereof or of any such regulations.
34 § 36. Subdivisions 1, 2, 3, 6, paragraph (a) of subdivision 12, subdi-
35 visions 13, 14 and 15 of section 97-b of the state finance law, subdivi-
36 sions 1, 2 and paragraph (f) of subdivision 3 as amended and paragraph
37 (g) of subdivision 3 as added by chapter 413 of the laws of 1996, para-
38 graph (e) of subdivision 3 as amended by chapter 9 of the laws of 1994,
39 subdivision 6 as amended by chapter 38 of the laws of 1985, paragraph
40 (a) of subdivision 12 as amended by section 13 of part C of chapter 389
41 of the laws of 1997 and subdivision 3 as amended and subdivisions 13, 14
42 and 15 as added by chapter 512 of the laws of 1986, are amended and
43 three new subdivisions 15, 16 and 17 are added to read as follows:
44 1. There is hereby established in the custody of the state comptroller
45 a nonlapsing revolving fund to be known as the "hazardous waste remedial
46 fund" which shall consist of a "site investigation and construction
47 account" [and], an "industry fee transfer account," [and] an "environ-
48 mental restoration project account," and a "hazardous waste cleanup
49 account".
50 2. Such fund shall consist of all of the following:
51 (a) all moneys [appropriated for transfer] transferred to the fund's
52 site investigation and construction account; (b) all fines and other
53 sums accumulated in the fund prior to April first, nineteen hundred
54 eighty-eight pursuant to section 71-2725 of the environmental conserva-
55 tion law for deposit in the fund's site investigation and construction
56 account; (c) [all moneys collected or received by the department of
S. 6257 85 A. 9759
1 taxation and finance pursuant to section 27-0923 of the environmental
2 conservation law for deposit in the fund's industry fee transfer
3 account; (d) all moneys paid into the fund pursuant to section 72-0201
4 of the environmental conservation law which shall be deposited in the
5 fund's industry fee transfer account; (e)] all moneys paid into the fund
6 pursuant to section one hundred eighty-six of the navigation law which
7 shall be deposited in the fund's industry fee transfer account; [(f)]
8 (d) all moneys paid into the fund by municipalities for repayment of
9 landfill closure loans made pursuant to former title five of article
10 fifty-two of the environmental conservation law for deposit in the
11 fund's site investigation and construction account; [(g)] (e) all monies
12 recovered under section 56-0507 of the environmental conservation law
13 into the fund's environmental restoration project account; [and (h)] (f)
14 all monies transferred from the remedial program transfer fund, created
15 pursuant to subdivision five of section ninety-seven-yyy of this chap-
16 ter, to the fund's hazardous waste cleanup account; and (g) other moneys
17 credited or transferred thereto from any other fund or source for depos-
18 it in the fund's site investigation and construction account.
19 3. Moneys of the hazardous waste remedial fund except monies in the
20 industry fee transfer account, when allocated, shall be available to
21 [the department of environmental conservation] all state departments and
22 agencies for the following purposes:
23 (a) inactive hazardous waste disposal site remedial programs pursuant
24 to section 27-1313 of the environmental conservation law and section
25 thirteen hundred eighty-nine-b of the public health law;
26 (b) cleaning up or restoring to its original state any area where
27 hazardous wastes were disposed of or possessed unlawfully in violation
28 of article twenty-seven of the environmental conservation law. For the
29 purposes of this section "the original state of the area" shall mean the
30 reasonably ascertainable condition of the property immediately prior to
31 the unlawful disposal or, if it is impracticable to determine such
32 condition, then it is the reasonable environmentally sound condition of
33 the area;
34 (c) inactive hazardous waste site identification, classification and
35 investigation actions including testing, analyses, record searches and
36 other expenditures necessary to develop the state inactive hazardous
37 waste disposal site remedial plan required pursuant to section 27-1305
38 of the environmental conservation law;
39 (d) financing the non-federal share of the cost of clean up, and site
40 remediation activities as well as post-closure operation and maintenance
41 costs, pursuant to the federal Comprehensive Environmental Response,
42 Compensation and Liability Act of 1980;
43 (e) emergency response action to clean up spills or abate other public
44 health or environmental hazards involving hazardous wastes except those
45 provided for under the New York state environmental protection and spill
46 compensation fund;
47 (f) [the study of hazardous substance waste disposal sites pursuant to
48 section 27-1316 of the environmental conservation law and section one
49 thousand three hundred eighty-nine-e of the public health law; and
50 (g)] to undertake such remedial measures as the department of environ-
51 mental conservation may determine necessary due to environmental condi-
52 tions related to the property subject to an agreement to provide state
53 assistance under title five of article fifty-six of the environmental
54 conservation law that were unknown to such department at the time of its
55 approval of such agreement which indicates that conditions on such prop-
56 erty are not sufficiently protective of human health for its reasonably
S. 6257 86 A. 9759
1 anticipated uses or due to information received, in whole or in part,
2 after such department's approval of such agreement's final engineering
3 report and certification, which indicates that such agreement's remedial
4 activities are not sufficiently protective of human health for such
5 property's reasonably anticipated uses; and, respecting the monies in
6 the environmental restoration project account in excess of ten million
7 dollars, shall provide state assistance under title five of article
8 fifty-six of the environmental conservation law;
9 (g) with respect to moneys in the hazardous waste cleanup account, to
10 pay the reasonable costs incurred by the state in negotiating and over-
11 seeing implementation of voluntary agreements and conducting remediation
12 under title fourteen of article twenty-seven of the environmental
13 conservation law;
14 (h) with respect to moneys in the hazardous waste cleanup account, to
15 provide state assistance pursuant to section nine hundred seventy-r of
16 the general municipal law.
17 6. The commissioner of the department of environmental conservation
18 shall make all reasonable efforts to recover the full amount of any
19 funds expended from the fund pursuant to paragraph (a) of subdivision
20 three of this section through litigation or cooperative agreements with
21 responsible persons. Any and all moneys recovered or reimbursed pursuant
22 to this section through voluntary agreements or court orders shall be
23 deposited with the comptroller and credited to the account of such fund
24 from which such expenditures were made; provided, however, that any
25 moneys recovered or reimbursed for funds expended from the hazardous
26 waste cleanup account shall be deposited in the remedial program trans-
27 fer fund.
28 (a) The comptroller shall, on July first, nineteen hundred eighty-
29 eight and on each succeeding July first until such time as the
30 surcharges required pursuant to subdivision [fourteen] thirteen of this
31 section are imposed, estimate the amount of revenues to be received by
32 the industry fee transfer account of this fund in the next succeeding
33 twenty months and the transfers which will be required to be made during
34 the same period. When calculating the estimate of industry fee transfer
35 account revenues available for the purpose of certifying, pursuant to
36 this subdivision, when such account's balance will be insufficient to
37 make the transfer required by subdivision eleven of this section, the
38 comptroller shall add to the amount estimated to actually be available
39 an additional credit factor as determined by paragraph (b) of this
40 subdivision. If the comptroller determines that the industry fee trans-
41 fer account will, at any time during the succeeding twenty month period,
42 lack sufficient funds to make the transfer required by subdivision elev-
43 en of this section, the comptroller shall so certify to the [state super
44 fund management board, created pursuant to section 27-1319 of the envi-
45 ronmental conservation law, and to the] governor and the legislature.
46 13. [Upon the receipt of a certification provided pursuant to subdivi-
47 sion twelve of this section, the state superfund management board shall
48 review and analyze the historical pattern of revenue received by the
49 industry fee transfer account and the long term projection of future
50 transfers from such account, and shall report on or before December
51 first of such year to the governor and the legislature its recommenda-
52 tions, if any, as to the sources of additional revenues which could be
53 used to supplement the revenues to be received by such fund in order to
54 achieve the equal sharing of debt service costs as implemented in subdi-
55 vision nine of this section.
S. 6257 87 A. 9759
1 14.] In the absence of further direction by law, effective April first
2 of the fiscal year immediately following the certification by the comp-
3 troller made pursuant to subdivision twelve of this section, surcharges
4 in the following amount shall be imposed: (a) twenty-five percent of the
5 fees imposed by sections 72-0402 and 72-0502 of the environmental
6 conservation law. Notwithstanding any other provision of law to the
7 contrary, moneys collected from such surcharge shall be deposited in
8 their entirety to the industry fee transfer account established pursuant
9 to subdivision one of this section; (b) fifty percent of the fees
10 imposed by section 27-0923 of the environmental conservation law, except
11 for those fees contained in paragraphs b and c of subdivision one, and
12 paragraph b of subdivision two of such section, which shall be exempt
13 from such surcharge. Moneys collected from such surcharge shall be
14 deposited to the industry fee transfer account established pursuant to
15 subdivision one of this section.
16 [15.] 14. On and after the date of such certification, the comptroller
17 shall maintain records with respect to such account to reflect each
18 unpaid transfer for the period during which it is unpaid. On and after
19 such date, any deposits in the industry fee transfer account shall be
20 immediately transferred to the general fund of the state until an amount
21 equal to the total of any unpaid transfers and accumulated interest
22 shall have been transferred to the general fund.
23 15. The comptroller shall, on the first day of July succeeding the
24 state fiscal year during which the bonds and notes issued under the
25 environmental quality bond act of nineteen hundred eighty-six to finance
26 the cleanup of inactive hazardous waste disposal sites in aggregate
27 exceed ninety-five percent of the amount authorized pursuant to such
28 bond act, estimate the total debt service of such bonds and notes. The
29 comptroller shall also estimate the state fiscal year in which the sum
30 of the transfers required by subdivision eleven of this section and the
31 additional credit factor as determined by paragraph (b) of subdivision
32 twelve of this section exceeds fifty percent of the estimated debt
33 service for such bonds and notes. The comptroller shall certify to the
34 governor and the legislature the estimated state fiscal year when fifty
35 percent of such estimated debt service will be exceeded.
36 16. Notwithstanding any law to the contrary, effective April first of
37 the state fiscal year succeeding the state fiscal year certified in
38 subdivision fifteen of this section, all moneys currently deposited in
39 the industry fee transfer account of the hazardous waste remedial fund
40 pursuant to subdivision two of this section shall be deposited in the
41 remedial program transfer fund. Further, effective April first of the
42 state fiscal year following such certification, subdivisions thirteen
43 and fourteen of this section shall be deemed repealed.
44 17. Notwithstanding any law to the contrary, and in accordance with
45 section four of this chapter, the comptroller is hereby authorized and
46 directed, upon the request of the director of the budget, to transfer
47 moneys from the site investigation and construction account of the
48 hazardous waste remedial fund to the hazardous waste cleanup account of
49 the hazardous waste remedial fund.
50 § 37. The state finance law is amended by adding a new section 97-yyy
51 to read as follows:
52 § 97-yyy. Remedial program transfer fund. 1. There is hereby estab-
53 lished in the joint custody of the comptroller and the commissioner of
54 taxation and finance a special fund to be known as the "remedial program
55 transfer fund".
56 2. Such fund shall consist of all of the following:
S. 6257 88 A. 9759
1 (a) registration fees collected pursuant to subdivision two of section
2 17-1009 of the environmental conservation law for deposit in this fund;
3 (b) all license fees, fines and penalties collected pursuant to para-
4 graph (b) of subdivision one and paragraph (a) of subdivision four of
5 section one hundred seventy-four of the navigation law, penalties
6 collected pursuant to paragraphs (b) and (c) of subdivision four of
7 section one hundred seventy-four-a of the navigation law, moneys
8 collected pursuant to section one hundred eighty-seven of the navigation
9 law, and all penalties collected pursuant to section one hundred nine-
10 ty-two of the navigation law;
11 (c) all penalties collected pursuant to paragraph (c) of subdivision
12 one and paragraph (b) of subdivision four of section one hundred seven-
13 ty-four of the navigation law effective April first of the state fiscal
14 year succeeding the state fiscal year certified in subdivision fifteen
15 of section ninety-seven-b of this article;
16 (d) moneys recovered pursuant to subdivision six of section ninety-
17 seven-b of this article for deposit in this fund;
18 (e) all fees paid into the fund pursuant to paragraph b of subdivision
19 one of section 72-0201 of the environmental conservation law;
20 (f) all moneys collected or received by the department of taxation and
21 finance pursuant to section 27-0923 of the environmental conservation
22 law;
23 (g) all moneys paid into the fund pursuant to subdivision sixteen of
24 section ninety-seven-b of this article;
25 (h) all fees paid into the fund pursuant to section 72-0403 of the
26 environmental conservation law;
27 (i) all moneys paid into the fund pursuant to section 27-1415 of the
28 environmental conservation law;
29 (j) other moneys credited or transferred thereto from any other fund
30 or source for deposit in the fund;
31 (k) all interest accrued on any such moneys deposited into the fund;
32 and
33 (l) all moneys paid pursuant to subdivision ten of section 27-1313 of
34 the environmental conservation law and subdivision one of section one
35 hundred eighty-one of the navigation law.
36 3. Notwithstanding any law to the contrary, and in accordance with
37 section four of this chapter, the comptroller is hereby authorized and
38 directed, upon the request of the director of the budget, for each state
39 fiscal year to transfer from the general fund to this fund up to an
40 amount equivalent to the projected amount of moneys to be deposited or
41 transferred into this fund pursuant to paragraphs (a), (b), (c), (d),
42 (e), (f), (g), (h), (i) and (l) of subdivision two of this section for
43 each such state fiscal year.
44 4. Revenues in the remedial program transfer fund shall be kept sepa-
45 rate and shall not be commingled with any other moneys in the custody of
46 the comptroller. All deposits of such revenues shall, if required by the
47 comptroller, be secured by obligations of the United States or of the
48 state having a market value equal at all times to the amount of such
49 deposits and all banks and trust companies are authorized to give secu-
50 rity for such deposits. Any such revenues in such fund may, upon the
51 discretion of the comptroller, be invested in obligations in which the
52 comptroller is authorized to invest pursuant to section ninety-eight of
53 this article.
54 5. Notwithstanding any law to the contrary, and in accordance with
55 section four of this chapter, the comptroller is hereby authorized and
56 directed, upon the request of the director of the budget, to transfer
S. 6257 89 A. 9759
1 moneys deposited in the remedial program transfer fund, and interest
2 accrued thereon, to the environmental protection and oil spill compen-
3 sation fund or to the hazardous waste cleanup account of the hazardous
4 waste remedial fund.
5 § 38. Paragraph (a) of subdivision 2 of section 179 of the navigation
6 law, as amended by chapter 83 of the laws of 1995, is amended and a new
7 subdivision 3 is added to read as follows:
8 (a) An account which shall be credited with all license fees and
9 penalties collected pursuant to paragraph (b) of subdivision one and
10 paragraph (a) of subdivision four of section one hundred seventy-four of
11 this article, penalties collected pursuant to paragraph (b) of subdivi-
12 sion four of section one hundred seventy-four-a of this article, money
13 collected pursuant to section one hundred eighty-seven of this article,
14 all penalties collected pursuant to section one hundred ninety-two of
15 this article, all moneys transferred from the remedial program transfer
16 fund pursuant to subdivision five of section ninety-seven-yyy of the
17 state finance law for deposit in the New York environmental protection
18 and spill compensation fund and registration fees collected pursuant to
19 subdivision two of section 17-1009 of the environmental conservation
20 law.
21 3. Notwithstanding any general or special law to the contrary, all
22 monies collected pursuant to paragraph (b) of subdivision one and para-
23 graph (a) of subdivision four of section one hundred seventy-four of
24 this article, penalties collected pursuant to paragraph (c) of subdivi-
25 sion one and paragraph (b) of subdivision four of section one hundred
26 seventy-four of this article effective April first of the state fiscal
27 year succeeding the state fiscal year certified in subdivision fifteen
28 of section ninety-seven-b of the state finance law, penalties collected
29 pursuant to paragraphs (b) and (c) of subdivision four of section one
30 hundred seventy-four-a of this article, money collected pursuant to
31 section one hundred eighty-seven of this article, all penalties
32 collected pursuant to section one hundred ninety-two of this article,
33 and registration fees collected pursuant to subdivision two of section
34 17-1009 of the environmental conservation law shall be deposited in the
35 remedial program transfer fund in the fiscal year beginning April first,
36 two thousand two, and for each fiscal year thereafter.
37 § 39. Subdivision 2 of section 17-1009 of the environmental conserva-
38 tion law, as amended by chapter 442 of the laws of 2001, is amended to
39 read as follows:
40 2. All owners shall register the facility with the department. The
41 department is authorized to assess a fee according to a schedule based
42 on the size and type of facility, not to exceed [two hundred fifty] five
43 hundred dollars per facility. Such fee shall be paid at the time of
44 registration or registration renewal. Registration shall be renewed
45 every five years or whenever title to a facility is transferred, which-
46 ever occurs first. In addition to such registration requirements and
47 pursuant to leak detection requirements set forth in section 17-1005 of
48 this title, notwithstanding any other provision of law, rule or regu-
49 lation, the department shall duly notify the facility owner of the
50 requirement for such owner to perform the required tightness test on a
51 petroleum bulk storage tank no less than forty-five days prior to the
52 date of the test expiration on the tank. All fees collected pursuant to
53 this subdivision shall be deposited in the New York environmental and
54 spill compensation fund established pursuant to section one hundred
55 seventy-nine of the navigation law[.]; provided, however, that such fees
56 shall be deposited in the remedial program transfer fund in the fiscal
S. 6257 90 A. 9759
1 year beginning April first, two thousand two, and for each fiscal year
2 thereafter. The owner must submit with each application for registra-
3 tion or registration renewal, a five-year fee as follows:
4 Combined Storage Capacity at Facility 5-Year Fee
5 Greater than 1,000 to 2,000 gallons $100 per facility
6 Greater than 2,000 gallons to $300 per facility
7 Less than 5,000 gallons
8 5,000 gallons to less than 400,000 gallons $500 per facility
9 § 40. Subdivision 3 of section 362 of chapter 83 of the laws of 1995
10 amending the state finance law and other laws relating to bonds, notes
11 and revenues, as amended by section 2 of part E of chapter 413 of the
12 laws of 1999, is amended to read as follows:
13 3. Sections fifteen through seventeen of this act shall take effect
14 immediately and shall be deemed to have been in full force and effect on
15 and after April 1, 1995[, and shall expire and be deemed repealed April
16 1, 2004];
17 § 41. Paragraph b of subdivision 1 of section 71-2725 of the environ-
18 mental conservation law, as amended by chapter 60 of the laws of 1993,
19 is amended to read as follows:
20 b. All penalties and fines collected pursuant to sections 71-2705,
21 71-2721 and 71-2723 of this title shall be paid [into the general fund
22 to the credit of the state purposes account] to the credit of the reme-
23 dial program transfer fund established by section ninety-seven-yyy of
24 the state finance law.
25 § 42. Paragraph b of subdivision 1, subdivision 9 and paragraph a of
26 subdivision 11 of section 72-0201 of the environmental conservation law,
27 paragraph b of subdivision 1 as amended and subdivision 9 as added by
28 chapter 38 of the laws of 1985 and paragraph a of subdivision 11 as
29 amended by section 24 of part A of chapter 58 of the laws of 1998, are
30 amended and subdivision 1 is amended by adding a new paragraph e to read
31 as follows:
32 b. Notwithstanding any general or special law to the contrary, one-
33 half of all monies collected by the department pursuant to section
34 72-0402 and section 72-0502 of this article shall be deposited in the
35 [hazardous waste] remedial program transfer fund, created pursuant to
36 section [ninety-seven-b] ninety-seven-yyy of the state finance law.
37 e. Notwithstanding any general or special law to the contrary, all
38 monies collected by the department pursuant to section 72-0403 of this
39 article shall be deposited in the remedial program transfer fund estab-
40 lished pursuant to section ninety-seven-yyy of the state finance law.
41 9. a. In the event a penalty or interest is collected pursuant to
42 subdivision five or six of this section for fees due under section
43 72-0402, or section 72-0502 of this article, one-half of the penalty or
44 interest shall be deposited by the department in the [hazardous waste]
45 remedial program transfer fund.
46 b. In the event a penalty or interest is collected pursuant to subdi-
47 vision five or six of this section for fees due under section 72-0403 of
48 this article, such penalty or interest shall be deposited in the remedi-
49 al program transfer fund.
50 a. All fees collected pursuant to this article [except fees collected
51 pursuant to paragraphs b, c and d of subdivision one of this section]
52 shall be paid into the environmental conservation special revenue fund
53 to the credit of the environmental regulatory account, unless herein
54 provided otherwise.
55 § 43. Section 72-0202 of the environmental conservation law is amended
56 by adding a new subdivision 4 to read as follows:
S. 6257 91 A. 9759
1 4. Bills issued for the hazardous waste generator remedial program
2 surcharge due for the state fiscal year beginning April first, two thou-
3 sand two shall cover the period April first, two thousand two through
4 December thirty-first, two thousand two. The surcharge for the period
5 April first, two thousand two through December thirty-first, two thou-
6 sand two shall be equal to three-quarters of the amount calculated in
7 the manner prescribed by section 72-0403 of this article. Hazardous
8 waste generator remedial program surcharges for periods beginning after
9 December thirty-first, two thousand two shall be calculated based upon
10 the calendar year.
11 § 44. The environmental conservation law is amended by adding a new
12 section 72-0403 to read as follows:
13 § 72-0403. Remedial program surcharges.
14 1. All generators shall submit annually to the department a fee in the
15 amount to be determined as follows:
16 a. Four thousand dollars for generators of equal to or greater than
17 fifteen tons per year and less than or equal to twenty-five tons per
18 year of hazardous waste;
19 b. Nine thousand dollars for generators of greater than twenty-five
20 tons per year and less than or equal to fifty tons per year of hazardous
21 waste;
22 c. Fourteen thousand dollars for generators of greater than fifty tons
23 per year and less than or equal to seventy-five tons per year of hazard-
24 ous waste;
25 d. Nineteen thousand dollars for generators of greater than seventy-
26 five tons per year and less than or equal to one hundred tons per year
27 of hazardous waste;
28 e. Twenty-four thousand dollars for generators of greater than one
29 hundred tons per year and less than or equal to five hundred tons per
30 year of hazardous waste;
31 f. Eighty thousand dollars for generators of greater than five hundred
32 tons per year and less than or equal to one thousand tons per year of
33 hazardous waste;
34 g. Eighty-five thousand dollars for generators of greater than one
35 thousand tons per year and less than or equal to two thousand tons per
36 year of hazardous waste;
37 h. One hundred ten thousand dollars for generators of greater than two
38 thousand tons per year and less than or equal to three thousand tons per
39 year of hazardous waste;
40 i. One hundred thirty-five thousand dollars for generators of greater
41 than three thousand tons per year and less than or equal to five thou-
42 sand tons per year of hazardous waste;
43 j. One hundred sixty thousand dollars for generators of greater than
44 five thousand tons per year and less than or equal to ten thousand tons
45 per year of hazardous waste;
46 k. Three hundred sixty thousand dollars for generators of greater than
47 ten thousand tons per year of hazardous waste;
48 l. Six thousand dollars for generators of equal to or greater than
49 fifteen tons per year of hazardous wastewater, payable in addition to
50 the fees for hazardous wastes, other than wastewater, as required by
51 this subdivision.
52 2. No fee shall be payable for waste resulting from services which are
53 provided:
54 a. under a contract with the department, or with the department's
55 approval and in compliance with department regulations, or pursuant to
56 an order of the department, the United States environmental protection
S. 6257 92 A. 9759
1 agency or a court, related to the cleanup or remediation of a hazardous
2 materials or hazardous waste spill, discharge, or surficial cleanup,
3 pursuant to this chapter, other than section 27-1313 of this chapter or
4 a removal action pursuant to the Comprehensive Environmental Response,
5 Compensation and Liability Act (42 U.S.C. 9601 et seq.); or
6 b. under a contract for, or with the department's approval and in
7 compliance with department regulations for, the cleanup and removal of a
8 petroleum spill or discharge, pursuant to subdivision seven of section
9 one hundred seventy-six of the navigation law; or
10 c. under the order of a court, the department or the department of
11 health, or the United States environmental protection agency related to
12 an inactive hazardous waste disposal site pursuant to section 27-1313 of
13 this chapter, section thirteen hundred eighty-nine-b of the public
14 health law, or the Comprehensive Environmental Response, Compensation
15 and Liability Act (42 U.S.C. 9601 et seq.); or
16 d. voluntarily and without expectation of monetary compensation in
17 accordance with subdivision one of section 27-1321 of this chapter; or
18 e. under permit or order requiring corrective action pursuant to title
19 nine of article twenty-seven of this chapter or the Resource Conserva-
20 tion and Recovery Act (42 U.S.C. 6901 et seq.).
21 § 45. Paragraph b of subdivision 4 of section 27-0923 of the environ-
22 mental conservation law, as added by chapter 38 of the laws of 1985, is
23 amended to read as follows:
24 b. All moneys collected or received by the department of taxation and
25 finance pursuant to this section shall be deposited daily to the credit
26 of the comptroller with such responsible banks, banking houses or trust
27 companies as may be designated by the comptroller. Such deposits shall
28 be kept separate and apart from all other moneys in the possession of
29 the comptroller. The comptroller shall require adequate security from
30 all such depositories. Of the revenues collected under this section, the
31 comptroller shall retain in his hands such amounts as the commissioner
32 of taxation and finance may determine to be necessary for refunds under
33 this section and the comptroller shall pay any refunds to which those
34 liable for special assessments shall be entitled under the provisions of
35 this section. The comptroller, after reserving the amount to pay such
36 refunds, shall, on or before the tenth day of each month, pay all
37 special assessments, interest and penalties collected under this section
38 and remaining to his credit in such banks, banking houses or trust
39 companies at the close of business on the last day of the preceding
40 month into the [hazardous waste] remedial program transfer fund created
41 pursuant to section [ninety-seven-b] ninety-seven-yyy of the state
42 finance law. Within thirty days after each quarterly reporting date, the
43 comptroller shall certify the amount of special assessments under this
44 section deposited in the [hazardous waste] remedial program transfer
45 fund during the preceding quarter and the cumulative amount collected
46 since the start of the current calendar year, and shall submit such
47 certification to the governor and the chairman of the senate finance
48 committee and the chairman of the assembly ways and means committee.
49 § 46. The tax law is amended by adding a new section 21 to read as
50 follows:
51 § 21. Brownfield redevelopment tax credit. (a) Allowance of credit.
52 (1) General. A taxpayer subject to tax under article nine, nine-A, twen-
53 ty-two, thirty-two or thirty-three of this chapter shall be allowed a
54 credit against such tax, pursuant to the provisions referenced in subdi-
55 vision (e) of this section. Such credit shall be allowed with respect
56 to a qualified site, as such term is defined in paragraph one of subdi-
S. 6257 93 A. 9759
1 vision (b) of this section. The amount of the credit shall be the sum of
2 the credit components specified in paragraphs two and three of this
3 subdivision.
4 (2) Site preparation credit component. The site preparation credit
5 component shall be equal to the applicable percentage of the site prepa-
6 ration costs paid or incurred by the taxpayer with respect to a quali-
7 fied site. The credit component amount so determined with respect to a
8 site's qualification for a remediation certificate shall be allowed for
9 the taxable year in which the effective date of the remediation certif-
10 icate occurs. The credit component amount determined other than with
11 respect to such qualification shall be allowed for the taxable year in
12 which the improvement to which the applicable costs apply is placed in
13 service.
14 (3) Tangible property credit component. The tangible property credit
15 component shall be equal to the applicable percentage of the cost or
16 other basis for federal income tax purposes of tangible personal proper-
17 ty and other tangible property, including buildings and structural
18 components of buildings, which constitute qualified tangible property.
19 The credit component amount so determined shall be allowed for the taxa-
20 ble year in which such qualified tangible property is placed in service
21 on a qualified site with respect to which a remediation certificate has
22 been issued to the taxpayer. The tangible property credit component
23 shall be allowed with respect to property leased to a second party only
24 if such second party is either (i) not a party responsible for the
25 disposal of hazardous waste or the discharge of petroleum at the site
26 according to applicable principles of statutory or common law liability,
27 or (ii) a party responsible according to applicable principles of statu-
28 tory or common law liability if such party's liability arises solely
29 from operation of the site subsequent to the disposal of hazardous waste
30 or the discharge of petroleum, and is so certified by the commissioner
31 of environmental conservation at the request of the taxpayer, pursuant
32 to section 27-1413 of the environmental conservation law. Notwithstand-
33 ing any other provision of law to the contrary, in the case of allowance
34 of credit under this section to such a lessor, the commissioner shall
35 have the authority to reveal to such lessor any information, with
36 respect to the issue of qualified use of property by the lessee, which
37 is the basis for the denial in whole or in part, or for the recapture,
38 of the credit claimed by such lessor.
39 (4) Applicable percentage. For purposes of paragraphs two and three
40 of this subdivision, the applicable percentage shall be ten percent in
41 the case of credits claimed under article nine, nine-A, thirty-two or
42 thirty-three, and eight percent in the case of credits claimed under
43 article twenty-two of this chapter. Provided, however, as provided in
44 section 27-1413 of the environmental conservation law, if the remedi-
45 ation certificate indicates that the soil on the qualified site has been
46 remediated to soil category 1 as that term is described in paragraph a
47 of subdivision three of section 27-1316 of the environmental conserva-
48 tion law, the applicable percentage shall be twelve percent in the case
49 of credits claimed under article nine, nine-A, thirty-two or thirty-
50 three, and ten percent in the case of credits claimed under article
51 twenty-two of this chapter.
52 (b) Definitions. As used in this section, the following terms shall
53 have the following meanings:
54 (1) Qualified site. A "qualified site" is a site with respect to which
55 a remediation certificate has been issued to the taxpayer by the commis-
S. 6257 94 A. 9759
1 sioner of environmental conservation pursuant to section 27-1413 of the
2 environmental conservation law.
3 (2) Site preparation costs. The term "site preparation costs" shall
4 mean all amounts properly chargeable to capital account, under generally
5 accepted accounting principles, (i) which are paid or incurred in
6 connection with a site's qualification for a remediation certificate,
7 and (ii) all other site preparation costs paid or incurred in connection
8 with preparing a site for the erection of a building or a component of a
9 building, or otherwise to establish a site as usable for its industrial,
10 commercial (including the commercial development of residential hous-
11 ing), recreational or conservation purposes. Site preparation costs
12 shall include, but not be limited to, the costs of excavation, temporary
13 electric wiring, scaffolding, demolition costs, and the costs of fencing
14 and security facilities. Site preparation costs shall not include the
15 cost of acquiring the site and shall not include amounts included in the
16 cost or other basis for federal income tax purposes of qualified tangi-
17 ble property, as described in paragraph three of this subdivision.
18 (3) Qualified tangible property. "Qualified tangible property" is
19 property which:
20 (A) is depreciable pursuant to section one hundred sixty-seven of the
21 internal revenue code,
22 (B) has a useful life of four years or more,
23 (C) has been acquired by purchase as defined in section one hundred
24 seventy-nine (d) of the internal revenue code,
25 (D) has a situs on a qualified site in this state,
26 (E) is principally used by the taxpayer for industrial, commercial,
27 recreational or environmental conservation purposes (including the
28 commercial development of residential housing), and
29 (F) is placed in service within three years following the issuance of
30 a remediation certificate with respect to such qualified site.
31 (4) Remediation certificate. The term "remediation certificate" shall
32 refer to the certificate so denominated which is issued by the commis-
33 sioner of environmental conservation pursuant to section 27-1413 of the
34 environmental conservation law.
35 (5) Corporate new business. A "corporate new business" shall include
36 any corporation, except a corporation:
37 (A) over fifty percent of the number of shares of stock of which enti-
38 tling the holders thereof to vote for the election of directors or trus-
39 tees is owned or controlled, either directly or indirectly, by a taxpay-
40 er subject to tax under article nine-A; section one hundred
41 eighty-three, one hundred eighty-four or one hundred eighty-five of
42 article nine; article thirty-two or thirty-three of this chapter; or
43 (B) which is substantially similar in operation and in ownership to a
44 business entity (or entities) taxable, or previously taxable, under
45 article nine-A; section one hundred eighty-three, one hundred eighty-
46 four, one hundred eighty-five or one hundred eighty-six of article nine;
47 article thirty-two or thirty-three of this chapter; article twenty-three
48 of this chapter or which would have been subject to tax under such arti-
49 cle twenty-three (as such article was in effect on January first, nine-
50 teen hundred eighty) or the income (or losses) of which is (or was)
51 includable under article twenty-two of this chapter whereby the intent
52 and purpose of this paragraph and the applicable provision of this chap-
53 ter relating to refunding of credit to new business would be evaded; or
54 (C) which has been subject to tax under the article or section with
55 respect to which the credit provided for under this section is claimed
56 for more than four taxable years (excluding short taxable years) prior
S. 6257 95 A. 9759
1 to the taxable year during which the taxpayer first becomes eligible for
2 such credit.
3 (c) Property which qualifies for the credit provided for under this
4 section and also for a credit provided for (1) under either subdivision
5 twelve or subdivision twelve-B of section two hundred ten of this chap-
6 ter, or both, (2) subsection (a) or subsection (j) of section six
7 hundred six of this chapter, or both, (3) the credit provided for under
8 subsection (i) of section fourteen hundred fifty-six of this chapter, or
9 (4) the credit provided under subdivision (q) of section fifteen hundred
10 eleven of this chapter may be the basis for either the credit provided
11 for under this section or one of the credits enumerated in paragraph
12 one, two or three of this subdivision, but not both.
13 (d)(1) With respect to qualified tangible property which is deprecia-
14 ble pursuant to section one hundred sixty-seven of the internal revenue
15 code but is not subject to the provisions of section one hundred sixty-
16 eight of such code and which is disposed of or ceases to be in qualified
17 use prior to the end of the taxable year in which the credit is to be
18 taken, the amount of the credit shall be that portion of the credit
19 provided for in this subdivision which represents the ratio which the
20 months of qualified use bear to the months of useful life. If property
21 on which credit has been taken is disposed of or ceases to be in quali-
22 fied use prior to the end of its useful life, the difference between the
23 credit taken and the credit allowed for actual use must be added back in
24 the year of disposition. Provided, however, if such property is disposed
25 of or ceases to be in qualified use after it has been in qualified use
26 for more than twelve consecutive years, it shall not be necessary to add
27 back the credit as provided in this paragraph. The amount of credit
28 allowed for actual use shall be determined by multiplying the original
29 credit by the ratio which the months of qualified use bear to the months
30 of useful life. For purposes of this paragraph, useful life of property
31 shall be the same as the taxpayer uses for depreciation purposes when
32 computing his federal income tax liability.
33 (2) Except with respect to that property to which paragraph four of
34 this subdivision applies, with respect to qualified tangible property
35 which is three-year property, as defined in subsection (e) of section
36 one hundred sixty-eight of the internal revenue code, which is disposed
37 of or ceases to be in qualified use prior to the end of the taxable year
38 in which the credit is to be taken, the amount of the credit shall be
39 that portion of the credit provided for in this section which represents
40 the ratio which the months of qualified use bear to thirty-six. If prop-
41 erty on which credit has been taken is disposed of or ceases to be in
42 qualified use prior to the end of thirty-six months, the difference
43 between the credit taken and the credit allowed for actual use must be
44 added back in the year of disposition. The amount of credit allowed for
45 actual use shall be determined by multiplying the original credit by the
46 ratio which the months of qualified use bear to thirty-six.
47 (3) Except with respect to that property to which paragraph four of
48 this subdivision applies, with respect to qualified tangible property
49 which is subject to the provisions of section one hundred sixty-eight of
50 the internal revenue code other than three-year property as defined in
51 subsection (e) of such section one hundred sixty-eight which is disposed
52 of or ceases to be in qualified use prior to the end of the taxable year
53 in which the credit is to be taken, the amount of the credit shall be
54 that portion of the credit provided for in this section which represents
55 the ratio which the months of qualified use bear to sixty. If property
56 on which credit has been taken is disposed of or ceases to be in quali-
S. 6257 96 A. 9759
1 fied use prior to the end of sixty months, the difference between the
2 credit taken and the credit allowed for actual use must be added back in
3 the year of disposition. The amount of credit allowed for actual use
4 shall be determined by multiplying the original credit by the ratio
5 which the months of qualified use bear to sixty.
6 (4) With respect to any qualified tangible property to which section
7 one hundred sixty-eight of the internal revenue code applies, which is a
8 building or a structural component of a building and which is disposed
9 of or ceases to be in qualified use prior to the end of the taxable year
10 in which the credit is to be taken, the amount of the credit shall be
11 that portion of the credit provided for in this section which represents
12 the ratio which the months of qualified use bear to the total number of
13 months over which the taxpayer chooses to deduct the property under the
14 internal revenue code. If property on which credit has been taken is
15 disposed of or ceases to be in qualified use prior to the end of the
16 period over which the taxpayer chooses to deduct the property under the
17 internal revenue code, the difference between the credit taken and the
18 credit allowed for actual use must be added back in the year of disposi-
19 tion. Provided, however, if such property is disposed of or ceases to be
20 in qualified use after it has been in qualified use for more than twelve
21 consecutive years, it shall not be necessary to add back the credit as
22 provided in this paragraph. The amount of credit allowed for actual use
23 shall be determined by multiplying the original credit by the ratio
24 which the months of qualified use bear to the total number of months
25 over which the taxpayer chooses to deduct the property under the inter-
26 nal revenue code.
27 (e) Cross-references. For application of the credit provided for in
28 this section, see the following provisions of this chapter:
29 (1) Article 9: Section 187-f
30 (2) Article 9-A: Section 210, subdivision 33
31 (3) Article 22: Section 606, subsections (i) and (dd)
32 (4) Article 32: Section 1456, subsection (q)
33 (5) Article 33: Section 1511, subdivision (u).
34 § 47. The tax law is amended by adding a new section 187-f to read as
35 follows:
36 § 187-f. Brownfield redevelopment tax credit. 1. Allowance of credit.
37 A taxpayer shall be allowed a credit, to be computed as provided in
38 section twenty-one of this chapter, against the taxes imposed by
39 sections one hundred eighty-three, one hundred eighty-four and one
40 hundred eighty-five of this article. Provided, however, that the amount
41 of such credit allowable against the tax imposed by section one hundred
42 eighty-four of this article shall be the excess of the amount of such
43 credit over the amount of any credit allowed by this section against the
44 tax imposed by section one hundred eighty-three of this article.
45 2. Carryovers. In no event shall the credit under this section be
46 allowed in an amount which will reduce the tax payable to less than the
47 applicable minimum tax fixed by section one hundred eighty-three or one
48 hundred eighty-five of this article. If, however, the amount of credit
49 allowable under this section for any taxable year reduces the tax to
50 such amount, any amount of credit not deductible in such taxable year
51 may be carried over to the following year or years and may be deducted
52 from the taxpayer's tax for such year or years. In lieu of such carry-
53 over, any such taxpayer which qualifies as a corporate new business
54 under paragraph five of subdivision (b) of section twenty-one of this
55 chapter may elect, on its report for its taxable year with respect to
56 which such credit is allowed, to treat fifty percent of the amount of
S. 6257 97 A. 9759
1 such carryover as an overpayment of tax to be credited or refunded in
2 accordance with the provisions of section ten hundred eighty-six of this
3 chapter. Provided, however, the provisions of subsection (c) of section
4 ten hundred eighty-eight of this chapter notwithstanding, no interest
5 shall be paid thereon.
6 § 48. Section 210 of the tax law is amended by adding a new subdivi-
7 sion 33 to read as follows:
8 33. Brownfield redevelopment tax credit. (a) Allowance of credit. A
9 taxpayer shall be allowed a credit, to be computed as provided in
10 section twenty-one of this chapter, against the tax imposed by this
11 article.
12 (b) Carryovers. The credit and carryovers of such credit allowed under
13 this subdivision for any taxable year shall not, in the aggregate,
14 reduce the tax due for such year to less than the higher of the amounts
15 prescribed in paragraphs (c) and (d) of subdivision one of this section.
16 However, if the amount of credit or carryovers of such credit, or both,
17 allowed under this subdivision for any taxable year reduces the tax to
18 such amount, any amount of credit or carryovers of such credit thus not
19 deductible in such taxable year may be carried over to the following
20 year or years and may be deducted from the tax for such year or years.
21 In lieu of such carryover, any such taxpayer which qualifies as a corpo-
22 rate new business under paragraph five of subdivision (b) of section
23 twenty-one of this chapter may elect, on its report for its taxable year
24 with respect to which such credit is allowed, to treat fifty percent of
25 the amount of such carryover as an overpayment of tax to be credited or
26 refunded in accordance with the provisions of section ten hundred eight-
27 y-six of this chapter. Provided, however, the provisions of subsection
28 (c) of section ten hundred eighty-eight of this chapter notwithstanding,
29 no interest shall be paid thereon.
30 § 49. Paragraph 1 of subsection (i) of section 606 of the tax law, as
31 separately amended by section 4 of part I, section 47 of part Y, section
32 4 of part CC, sections 4 and 15 of part GG, section 5 of part II and
33 section 3 of part E of chapter 63 of the laws of 2000, is amended to
34 read as follows:
35 (1) For purposes of determining the application under this section of
36 the credit provisions enumerated in the following table, a shareholder
37 of a New York S corporation:
38 (A) shall be treated as the taxpayer with respect to his or her pro
39 rata share of the corresponding credit base of such corporation, deter-
40 mined for the corporation's taxable year ending with or within the
41 shareholder's taxable year and
42 (B) shall be treated as the owner of a new business with respect to
43 such share if the corporation qualifies as a new business pursuant to
44 paragraph (j) of subdivision twelve of section two hundred ten of this
45 chapter, unless the shareholder has previously received a refund by
46 reason of the application of this subparagraph, or this subsection as it
47 was in effect for taxable years beginning before nineteen hundred nine-
48 ty-four.
49 The corporation's
50 With respect to the credit base under
51 following credit section two hundred ten
52 under this section: or section fourteen
53 hundred fifty-six of this
54 chapter is:
S. 6257 98 A. 9759
1 Investment tax credit Investment credit base
2 under subsection (a) or qualified
3 rehabilitation
4 expenditures under
5 subdivision twelve of
6 section two hundred ten
7 Empire zone Cost or other basis
8 investment tax credit under subdivision
9 under subsection (j) twelve-B
10 of section two hundred
11 ten
12 Empire zone Eligible wages under
13 wage tax credit subdivision nineteen of
14 under subsection (k) section two hundred ten
15 or subsection (e) of
16 section fourteen hundred
17 fifty-six
18 Empire zone Qualified investments
19 capital tax credit and contributions under
20 under subsection (1) subdivision twenty of
21 section two hundred ten
22 or subsection (d) of
23 section fourteen hundred
24 fifty-six
25 Agricultural property tax Allowable school
26 credit under subsection (n) district property taxes under
27 subdivision twenty-two of
28 section two hundred ten
29 Credit for employment Qualified first-year wages or
30 of persons with dis- qualified second-year wages
31 abilities under under subdivision
32 subsection (o) twenty-three of section
33 two hundred ten
34 or subsection (f)
35 of section fourteen
36 hundred fifty-six
37 Employment incentive Applicable investment credit
38 credit under subsec- base under subdivision
39 tion (a-1) twelve-D of section two
40 hundred ten
41 Empire zone Applicable investment
42 employment credit under sub-
43 incentive credit under division twelve-C
44 subsection (j-1) of section two hundred ten
45 Alternative fuels credit Cost under subdivision
46 under subsection (p) twenty-four of section two
47 hundred ten
S. 6257 99 A. 9759
1 Qualified emerging Applicable credit base
2 technology company under subdivision twelve-E
3 employment credit of section two hundred ten
4 under subsection (q)
5 Qualified emerging Qualified investments under
6 technology company subdivision twelve-F of
7 capital tax credit section two hundred ten
8 under subsection (r)
9 Credit for purchase of an Cost of an automated
10 automated external defibrillator external defibrillator under
11 under subsection (s) subdivision twenty-five of
12 section two hundred ten
13 or subsection (j) of section
14 fourteen hundred fifty-six
15 Low-income housing Credit amount under
16 credit under subsection (x) subdivision thirty
17 of section two hundred ten or
18 subsection (1) of section
19 fourteen hundred fifty-six
20 Credit for transportation Amount of credit under sub-
21 improvement contributions division thirty-two of section
22 under subsection (z) two hundred ten or subsection
23 (n) of section fourteen
24 hundred fifty-six
25 IMB credit for energy Amount of credit
26 taxes under sub- under subdivision
27 section (t-1) twenty-six-a of
28 section two hundred ten
29 QEZE credit for real property Amount of credit under
30 taxes under subsection (bb) subdivision twenty-seven of
31 section two hundred ten or
32 subsection (o) of section
33 fourteen hundred fifty-six
34 QEZE tax reduction credit Amount of credit under
35 under subsection (cc) subdivision twenty-eight of
36 section two hundred ten or
37 subsection (p) of section
38 fourteen hundred fifty-six
39 Green building credit Amount of green building credit
40 under subsection (y) under subdivision thirty-one
41 of section two hundred ten
42 or subsection (m) of section
43 fourteen hundred fifty-six
44 Credit for long-term Qualified costs under
45 care insurance premiums subdivision twenty-five-a of
46 under subsection (aa) section two hundred ten
47 or subsection (k) of section
S. 6257 100 A. 9759
1 fourteen hundred fifty-six
2 Brownfield redevelopment Applicable cost
3 credit under subsection or other basis
4 (dd) under subdivision
5 thirty-three of section
6 two hundred ten
7 or subsection (q) of
8 section fourteen hundred
9 fifty-six
10 § 50. Subsections (dd) and (ee) of section 606 of the tax law, as
11 relettered by section 1 of part DD of chapter 63 of the laws of 2000,
12 are relettered subsections (yy) and (zz) and a new subsection (dd) is
13 added to read as follows:
14 (dd) 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 tax imposed by this
17 article.
18 (2) Carryovers. If the amount of the credit and carryovers of such
19 credit allowed under this subsection for any taxable year shall exceed
20 the taxpayer's tax for such year, the excess, as well as any part of the
21 credit or carryovers of such credit, or both, may be carried over to the
22 following year or years and may be deducted from the taxpayer's tax for
23 such year or years. In lieu of carrying over any such excess, a taxpayer
24 who qualifies as an owner of a new business for purposes of paragraph
25 ten of subsection (a) of this section may, at his option, receive fifty
26 percent of such excess as a refund. Any refund paid pursuant to this
27 paragraph shall be deemed to be a refund of an overpayment of tax as
28 provided in section six hundred eighty-six of this article, provided,
29 however, that no interest shall be paid thereon. For purposes of this
30 section, in reading such paragraph ten, references therein to the
31 investment tax credit provided for under subsection (a) of this section
32 shall be deemed to refer to the credit provided for under this
33 subsection, and shall be read accordingly.
34 § 51. Subsection (c) of section 683 of the tax law is amended by
35 adding a new paragraph 10 to read as follows:
36 (10) Reports concerning a remediation certificate. If a taxpayer's
37 remediation certificate issued pursuant to section 27-1413 of the envi-
38 ronmental conservation law is modified or revoked by a determination
39 issued pursuant to subdivision six of section 27-1413 of the environ-
40 mental conservation law, any tax liability generated by reason of such
41 modification or revocation may be assessed within one year after such
42 determination is final and is no longer subject to judicial review and
43 the taxpayer shall be allowed to offset against such tax liability the
44 amount of any of the credits provided for under subsection (a) or (j) of
45 section six hundred six of this article which the taxpayer would have
46 been allowed with respect to amounts which were the basis for the credit
47 provided for under such section twenty-one which is the subject of such
48 assessment.
49 § 52. Subsection (a) of section 687 of the tax law, as amended by
50 chapter 309 of the laws of 1996, is amended to read as follows:
51 (a) General.--Claim for credit or refund of an overpayment of income
52 tax shall be filed by the taxpayer within (i) three years from the time
53 the return was filed [or], (ii) two years from the time the tax was
54 paid, or (iii) in the case of any overpayment arising from an erroneous
55 denial by the department of environmental conservation of a remediation
S. 6257 101 A. 9759
1 certificate pursuant to section 27-1413 of the environmental conserva-
2 tion law, two years from the time a final determination to the effect
3 that such denial was erroneous is made and is no longer subject to judi-
4 cial review, whichever of such periods expires the [later] latest, or if
5 no return was filed, within two years from the time the tax was paid. If
6 the claim is filed within the three year period, the amount of the cred-
7 it or refund shall not exceed the portion of the tax paid within the
8 three years immediately preceding the filing of the claim plus the peri-
9 od of any extension of time for filing the return unless such claim is
10 for a credit or a portion thereof provided pursuant to paragraph two or
11 four of subsection (c), paragraph two or four of subsection (d) or
12 subsection (e) of section six hundred six of this chapter. If the claim
13 is not filed within the three year period, but is filed within the two
14 year period, the amount of the credit or refund shall not exceed the
15 portion of the tax paid during the two years immediately preceding the
16 filing of the claim unless such claim is for a credit or a portion ther-
17 eof provided pursuant to paragraph two or four of subsection (c), para-
18 graph two or four of subsection (d) or subsection (e) of section six
19 hundred six of this chapter. In the case of a claim for credit or
20 refund filed within the period prescribed in paragraph (iii) of this
21 subsection, the amount of the credit or refund may exceed the portion of
22 the tax paid within the applicable period specified in the two imme-
23 diately preceding sentences, but only to the extent of the amount of the
24 overpayment attributable to the denial described in such paragraph
25 (iii). Except as otherwise provided in this section, if no claim is
26 filed, the amount of a credit or refund shall not exceed the amount
27 which would be allowable if a claim had been filed on the date the cred-
28 it or refund is allowed.
29 § 53. Subsection (c) of section 1083 of the tax law is amended by
30 adding a new paragraph 10 to read as follows:
31 (10) Reports concerning a remediation certificate. If a taxpayer's
32 remediation certificate issued pursuant to section 27-1413 of the envi-
33 ronmental conservation law is modified or revoked by a determination
34 issued pursuant to subdivision six of section 27-1413 of the environ-
35 mental conservation law, any tax liability generated by reason of such
36 modification or revocation may be assessed within one year after such
37 determination is final and is no longer subject to judicial review and
38 the taxpayer shall be allowed to offset against such tax liability the
39 amount of any of the credits provided for under subdivision twelve or
40 twelve-B of section two hundred ten, or subsection (i) of section four-
41 teen hundred fifty-six of this chapter or subdivision (q) of section
42 fifteen hundred eleven of this chapter which the taxpayer would have
43 been allowed with respect to amounts which were the basis for the credit
44 provided for under such section twenty-one which is the subject of such
45 assessment.
46 § 54. Subsection (a) of section 1087 of the tax law, as amended by
47 chapter 55 of the laws of 1982, is amended to read as follows:
48 (a) General.--Claim for credit or refund of an overpayment of tax
49 under article nine[, nine-a, nine-b or nine-c] or nine-A shall be filed
50 by the taxpayer within (i) three years from the time the return was
51 filed [or], (ii) two years from the time the tax was paid or (iii) in
52 the case of any overpayment arising from an erroneous denial by the
53 department of environmental conservation of a remediation certificate
54 pursuant to section 27-1413 of the environmental conservation law, two
55 years from the time a final determination to the effect that such denial
56 was erroneous is made and is no longer subject to judicial review,
S. 6257 102 A. 9759
1 whichever of such periods expires the [later] latest, or if no return
2 was filed, within two years from the time the tax was paid. If the
3 claim is filed within the three year period, the amount of the credit or
4 refund shall not exceed the portion of the tax paid within the three
5 years immediately preceding the filing of the claim plus the period of
6 any extension of time for filing the return. If the claim is not filed
7 within the three year period, but is filed within the two year period,
8 the amount of the credit or refund shall not exceed the portion of the
9 tax paid during the two years immediately preceding the filing of the
10 claim. In the case of a claim for credit or refund filed within the
11 period prescribed in paragraph (iii) of this subsection, the amount of
12 the credit or refund may exceed the portion of the tax paid within the
13 applicable period specified in the two immediately preceding sentences,
14 but only to the extent of the amount of the overpayment attributable to
15 the denial described in such paragraph (iii) of this subsection. Except
16 as otherwise provided in this section, if no claim is filed, the amount
17 of a credit or refund shall not exceed the amount which would be allow-
18 able if a claim had been filed on the date the credit or refund is
19 allowed. For special restriction in a proceeding on a claim for refund
20 of tax paid pursuant to an assessment made as a result of (i) a net
21 operating loss carryback or capital loss carryback, or (ii) an increase
22 or decrease in federal taxable income or federal tax, or (iii) a federal
23 change or correction or renegotiation, or computation or recomputation
24 of tax, which is treated in the same manner as if it were a deficiency
25 for federal income tax purposes, see paragraph (7) of subsection (c) of
26 section one thousand eighty-three.
27 § 55. Section 1456 of the tax law is amended by adding a new
28 subsection (q) to read as follows:
29 (q) Brownfield redevelopment tax credit. (1) Allowance of credit. A
30 taxpayer shall be allowed a credit, to be computed as provided in
31 section twenty-one of this chapter, against the tax imposed by this
32 article.
33 (2) Carryover. The credit and carryovers of such credit allowed under
34 this subsection for any taxable year shall not, in the aggregate, reduce
35 the tax due for such year to less than the minimum tax fixed by para-
36 graph three of subsection (b) of section fourteen hundred fifty-five of
37 this article. However, if the amount of credit or carryovers of such
38 credit, or both, allowed under this subsection for any taxable year
39 reduces the tax to such amount, then any amount of credit or carryovers
40 of such credit thus not deductible in such taxable year may be carried
41 over to the following year or years and may be deducted from the taxpay-
42 er's tax for such year or years. In lieu of such carryover, any such
43 taxpayer which qualifies as a corporate new business under paragraph
44 five of subdivision (b) of section twenty-one of this chapter may elect,
45 on its report for its taxable year with respect to which such credit is
46 allowed, to treat fifty percent of the amount of such carryover as an
47 overpayment of tax to be credited or refunded in accordance with the
48 provisions of section ten hundred eighty-six of this chapter. Provided,
49 however, the provisions of subsection (c) of section ten hundred eight-
50 y-eight of this chapter notwithstanding, no interest shall be paid ther-
51 eon.
52 § 56. Section 1511 of the tax law is amended by adding a new subdivi-
53 sion (u) to read as follows:
54 (u) Brownfield redevelopment tax credit. (1) Allowance of credit. A
55 taxpayer shall be allowed a credit, to be computed as provided in
S. 6257 103 A. 9759
1 section twenty-one of this chapter, against the taxes imposed by this
2 article.
3 (2) Carryover. 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 minimum fixed by para-
6 graph four of subdivision (a) of section fifteen hundred two of this
7 article. However, if the amount of credit or carryovers of such credit,
8 or both, allowed under this subdivision for any taxable year reduces the
9 tax to such amount, then any amount of credit or carryovers of such
10 credit thus not deductible in such taxable year may be carried over to
11 the following year or years and may be deducted from the taxpayer's tax
12 for such year or years. In lieu of such carryover, any such taxpayer
13 which qualifies as a corporate new business under paragraph five of
14 subdivision (b) of section twenty-one of this chapter may elect, on its
15 report for its taxable year with respect to which such credit is
16 allowed, to treat fifty percent of the amount of such carryover as an
17 overpayment of tax to be credited or refunded in accordance with the
18 provisions of section ten hundred eighty-six of this chapter. Provided,
19 however, the provisions of subsection (c) of section ten hundred eight-
20 y-eight of this chapter notwithstanding, no interest shall be paid ther-
21 eon.
22 § 57. The tax law is amended by adding a new section 25 to read as
23 follows:
24 § 25. Tax credits for remediated brownfields. (a) Definitions. As
25 used in this section the following terms shall have the following mean-
26 ings:
27 (1) Remediation certificate. A "remediation certificate" is a certif-
28 icate issued by the commissioner of environmental conservation pursuant
29 to section 27-1413 of the environmental conservation law.
30 (2) Qualified site. For purposes of this section, a "qualified site"
31 is a site with respect to which a remediation certificate has been
32 issued and which is located in its entirety outside the metropolitan
33 commuter transportation district created and established pursuant to
34 section twelve hundred sixty-two of the public authorities law.
35 (3) Small qualified site. A "small qualified site" is a qualified site
36 which, on the effective date of the remediation certificate issued with
37 respect to such site, consists of at least ten but no more than one
38 hundred acres and is located at least partially within a city in this
39 state.
40 (4) Large qualified site. A "large qualified site" is a qualified site
41 which, on the effective date of the remediation certificate issued with
42 respect to such site, consists of more than one hundred acres.
43 (5) Developer. (i) A "developer" is a taxpayer under article nine,
44 nine-A, twenty-two, thirty-two or thirty-three of this chapter who or
45 which either (I) has been issued a remediation certificate with respect
46 to a qualified site or (II) has purchased all or any portion of a quali-
47 fied site from a taxpayer who or which has been issued a remediation
48 certificate with respect to such site provided, in the case of a small
49 qualified site, such purchase occurs within five years of the effective
50 date of the remediation certificate issued with respect to such small
51 qualified site, and in the case of a large qualified site, such purchase
52 occurs within ten years of the effective date of the remediation certif-
53 icate issued with respect to such large qualified site. Provided
54 further, that the taxpayer who or which is purchasing all or any portion
55 of a qualified site and the taxpayer who or which has been issued a
56 remediation certificate with respect to such site may not be related
S. 6257 104 A. 9759
1 persons, as such term is defined in subparagraph (C) of paragraph three
2 of subsection (b) of section four hundred sixty-five of the internal
3 revenue code.
4 (ii) Where the entity to whom a remediation certificate has been
5 issued is a partnership, or where the entity which has purchased all or
6 any portion of a small or large qualified site from a taxpayer who or
7 which has been issued a remediation certificate with respect to such
8 site within the applicable time limit is a partnership, any partner in
9 such partnership who or which is taxable under article nine, nine-A,
10 twenty-two, thirty-two or thirty-three of this chapter shall be a devel-
11 oper under this paragraph. Where the entity to whom a remediation
12 certificate has been issued is a New York S corporation, or where the
13 entity which has purchased all or any portion of a small or large quali-
14 fied site from a taxpayer who or which has been issued a remediation
15 certificate with respect to such site within the applicable time limit
16 is a New York S corporation, any shareholder in such New York S corpo-
17 ration shall be a developer under this paragraph.
18 (iii) In order for a taxpayer to be a "developer" for purposes of
19 clause (II) of subparagraph (i) of this paragraph, such taxpayer shall
20 not be a person that would have been ineligible to receive a remediation
21 certificate with respect to such site for the reasons stated in para-
22 graphs a and c of subdivision two of section 27-1405 of the environ-
23 mental conservation law.
24 (6) Business tax benefit period. The "business tax benefit period",
25 with regard to the credits described in subdivisions (b) and (c) of this
26 section, shall be (i) in the case of a developer of a small qualified
27 site, a period of fourteen consecutive taxable years of such developer
28 or (ii) in the case of a developer of a large qualified site, a period
29 of nineteen consecutive taxable years of such developer. Such period
30 shall commence (i) in the taxable year next following the year in which
31 such developer is issued a remediation certificate with respect to a
32 qualified site or (ii) in the case of a developer who has purchased all
33 or any portion of a qualified site, in the taxable year in which such
34 developer purchases such qualified site.
35 (b) Remediated brownfield credit for real property taxes for small
36 qualified sites. (1) Allowance of credit. A developer of a small quali-
37 fied site who or which is subject to tax under article nine, nine-A,
38 twenty-two, thirty-two or thirty-three of this chapter, shall be allowed
39 a credit against such tax, pursuant to the provisions referenced in
40 paragraph eight of this subdivision, for eligible real property taxes
41 imposed on such small qualified site.
42 (2) Amount of credit. The amount of the credit shall be the product of
43 (i) the benefit period factor, (ii) the employment number factor, and
44 (iii) the eligible real property taxes paid or incurred by the developer
45 of the small qualified site during the taxable year (or the pro rata
46 share of such taxes in the case of a partner in a partnership). Howev-
47 er, the amount of the credit may not exceed the credit limitation set
48 forth in paragraph seven of this subdivision.
49 (3) Benefit period factor. The benefit period factors are set forth in
50 the following table:
51 Taxable year of the business Benefit period factor:
52 tax benefit period:
53 1-10 1.0
54 11 .8
55 12 .6
56 13 .4
S. 6257 105 A. 9759
1 14 .2
2 (4) Employment number factor. (i) The employment number factors are
3 set forth in the following table:
4 Average number of full-time Employment number factor:
5 employees employed by the
6 developer of a qualified
7 site at such site during the
8 taxable year:
9 at least 25 but less than 50 .25
10 at least 50 but less than 75 .50
11 at least 75 but less than 100 .75
12 at least 100 1.00
13 (ii) For purposes of this paragraph, the average number of full-time
14 employees employed by a developer at a qualified site during a taxable
15 year shall be computed by determining the number of such individuals
16 employed by the developer on the thirty-first day of March, the thirti-
17 eth day of June, the thirtieth day of September and the thirty-first day
18 of December during the taxable year, adding together the number of such
19 individuals determined to be so employed on each of such dates and
20 dividing the sum so obtained by the number of such dates occurring with-
21 in such applicable taxable year. For purposes of this calculation,
22 general executive officers in the case of a corporation shall be
23 excluded. Where the developer is a partner in a partnership or a share-
24 holder in a New York S corporation, the number of full-time employees of
25 the partnership or New York S corporation, respectively, at such quali-
26 fied site shall be used for purposes of this calculation.
27 (5) Eligible real property taxes. The term "eligible real property
28 taxes" means taxes imposed on the real property which consists of the
29 small qualified site owned by the developer, provided such taxes become
30 a lien on the real property in a period during which the real property
31 is a qualified site. Where the developer is a partner in a partnership
32 or a shareholder in a New York S corporation, such real property shall
33 be owned by the partnership or New York S corporation, respectively.
34 (6) Credit recapture. Where a developer's eligible real property taxes
35 which were the basis for the allowance of the credit provided for under
36 this subdivision are subsequently reduced as a result of a final order
37 in any proceeding under article seven of the real property tax law or
38 other provision of law, the taxpayer shall add back, in the taxable year
39 in which such final order is issued, the excess of (i) the amount of
40 credit originally allowed for a taxable year over (ii) the amount of
41 credit determined based upon the reduced eligible real property taxes.
42 If such final order reduces real property taxes for more than one year,
43 the taxpayer must determine how much of such reduction is attributable
44 to each year covered by such final order and calculate the amount of
45 credit which is required by this paragraph to be recaptured for each
46 year based on such reduction.
47 (7) The credit limitation shall be the greater of the employment
48 increase limitation or the capital investment limitation.
49 (i) The employment increase limitation shall be the product of (A) ten
50 thousand dollars and (B) the average number of full-time employees
51 employed by the developer of a qualified site at such site during the
52 taxable year in excess of twenty-five.
53 (ii) The capital investment limitation shall be ten percent of the
54 cost or other basis for federal income tax purposes, determined on the
55 last day of the taxable year, of the real property, including buildings
S. 6257 106 A. 9759
1 and structural components of buildings, which consists of the small
2 qualified site owned by the developer.
3 (8) Credit option. If the small qualified site is located in whole or
4 in part in an area designated as an empire zone pursuant to article
5 eighteen-B of the general municipal law, and a taxpayer meets the eligi-
6 bility requirements for both the credit provided for under this subdivi-
7 sion and the QEZE credit for real property taxes provided for under
8 section fifteen of this chapter, with respect to all or part of such
9 site, such taxpayer shall not be allowed to claim both such credits. The
10 taxpayer shall be required, in the first taxable year such taxpayer is
11 allowed to claim a credit under this subdivision, to elect whether to
12 claim the credit provided for under this subdivision or the credit
13 provided for under section fifteen of this article. Such election shall
14 be made with the filing of the return or report required under article
15 nine, nine-A, twenty-two, thirty-two or thirty-three of this chapter,
16 whichever is applicable, for such taxable year. Such election shall
17 apply to and be binding in each subsequent taxable year in the business
18 tax benefit period applicable to the credit provided for under either
19 this section or section fifteen of this article. A taxpayer who or which
20 has been allowed a credit under section fifteen of this chapter, in a
21 taxable year preceding the first taxable year such taxpayer is allowed
22 to claim a credit under this subdivision, shall not be precluded from
23 making the election provided for in this paragraph.
24 (9) Cross-references. For application of the credit provided for in
25 this subdivision, see the following provisions of this chapter:
26 (i) Article 9: Section 187-g.
27 (ii) Article 9-A: Section 210: subdivision thirty-six.
28 (iii) Article 22: Section 606: subsections (i) and (jj).
29 (iv) Article 32: Section 1456: subsection (r).
30 (v) Article 33: Section 1511: subdivision (v).
31 (c) Remediated brownfield credit for real property taxes for large
32 qualified sites. (1) Allowance of credit. A developer of a large quali-
33 fied site who or which is subject to tax under article nine, nine-A,
34 twenty-two, thirty-two or thirty-three of this chapter, shall be allowed
35 a credit against such tax, pursuant to the provisions referenced in
36 paragraph eight of this subdivision, for eligible real property taxes
37 imposed on such large qualified site.
38 (2) Amount of credit. The amount of the credit shall be the product of
39 (i) the benefit period factor, (ii) the employment number factor, and
40 (iii) the eligible real property taxes paid or incurred by the developer
41 of the large qualified site during the taxable year (or the pro rata
42 share of such taxes in the case of a partner in a partnership). Howev-
43 er, the amount of the credit may not exceed the credit limitation set
44 forth in paragraph seven of this subdivision.
45 (3) Benefit period factor. The benefit period factors are set forth in
46 the following table:
47 Taxable year of the business tax benefit period: Benefit period factor:
48 1-15 1.0
49 16 .8
50 17 .6
51 18 .4
52 19 .2
53 (4) Employment number factor. The employment number factor shall be as
54 prescribed in paragraph four of subdivision (b) of this section.
55 (5) Eligible real property taxes. The term "eligible real property
56 taxes" means taxes imposed on the real property which consists of the
S. 6257 107 A. 9759
1 large qualified site owned by the developer, provided such taxes become
2 a lien on the real property in a period during which the real property
3 is a large qualified site. Where the developer is a partner in a part-
4 nership or a shareholder in a New York S corporation, such real property
5 shall be owned by the partnership or New York S corporation, respective-
6 ly.
7 (6) Credit recapture. Where a developer's eligible real property taxes
8 which were the basis for the allowance of the credit provided for under
9 this subdivision are subsequently reduced as a result of a final order
10 in any proceeding under article seven of the real property tax law or
11 other provision of law, the taxpayer shall add back, in the taxable year
12 in which such final order is issued, the excess of (i) the amount of
13 credit originally allowed for a taxable year over (ii) the amount of
14 credit determined based upon the reduced eligible real property taxes.
15 If such final order reduces real property taxes for more than one year,
16 the taxpayer must determine how much of such reduction is attributable
17 to each year covered by such final order and calculate the amount of
18 credit which is required by this paragraph to be recaptured for each
19 year based on such reduction.
20 (7) The credit limitation shall be the greater of the employment
21 increase limitation or the capital investment limitation.
22 (i) The employment increase limitation shall be the product of (A) ten
23 thousand dollars and (B) the average number of full-time employees
24 employed by the developer of a qualified site at such site during the
25 taxable year in excess of twenty-five.
26 (ii) The capital investment limitation shall be ten percent of the
27 cost or other basis for federal income tax purposes, determined on the
28 last day of the taxable year, of the real property, including buildings
29 and structural components of buildings, which consists of the large
30 qualified site owned by the developer.
31 (8) Credit option. If the large qualified site is located in whole or
32 in part in an area designated as an empire zone pursuant to article
33 eighteen-B of the general municipal law, and a taxpayer meets the eligi-
34 bility requirements for both the credit provided for under this subdivi-
35 sion and the QEZE credit for real property taxes provided for under
36 section fifteen of this chapter, with respect to all or part of such
37 site, such taxpayer shall not be allowed to claim both such credits. The
38 taxpayer shall be required, in the first taxable year such taxpayer is
39 allowed to claim a credit under this subdivision, to elect whether to
40 claim the credit provided for under this subdivision or the credit
41 provided for under section fifteen of this article. Such election shall
42 be made with the filing of the return or report required under article
43 nine, nine-A, twenty-two, thirty-two or thirty-three of this chapter,
44 whichever is applicable, for such taxable year. Such election shall
45 apply to and be binding in each subsequent taxable year in the business
46 tax benefit period applicable to the credit provided for under either
47 this section or section fifteen of this article. A taxpayer who or which
48 has been allowed a credit under section fifteen of this article, in a
49 taxable year preceding the first taxable year such taxpayer is allowed
50 to claim a credit under this subdivision, shall not be precluded from
51 making the election provided for in this paragraph.
52 (9) Cross-references. For application of the credit provided for in
53 this subdivision, see the following provisions of this chapter:
54 (i) Article 9: Section 187-h.
55 (ii) Article 9-A: Section 210: subdivision thirty-seven.
56 (iii) Article 22: Section 606: subsections (i) and (kk).
S. 6257 108 A. 9759
1 (iv) Article 32: Section 1456: subsection (s).
2 (v) Article 33: Section 1511: subdivision (w).
3 § 58. The tax law is amended by adding two new sections 187-g and
4 187-h to read as follows:
5 § 187-g. Remediated brownfield credit for real property taxes for
6 small qualified sites. 1. Allowance of credit. A taxpayer shall be
7 allowed a credit, to be computed as provided in subdivision (b) of
8 section twenty-five of this chapter, against the taxes imposed by
9 sections one hundred eighty-three, one hundred eighty-four and one
10 hundred eighty-five of this article. Provided, however, that the amount
11 of such credit allowed against the tax imposed by section one hundred
12 eighty-four of this article shall be the excess of the amount of such
13 credit over the amount of any credit allowed by this section against the
14 tax imposed by section one hundred eighty-three of this article.
15 2. Application of credit. In no event shall the credit under this
16 section be allowed in an amount which will reduce the tax payable to
17 less than the applicable minimum tax fixed by section one hundred eight-
18 y-three or one hundred eighty-five of this article. If, however, the
19 amount of credit allowed under this section for any taxable year reduces
20 the tax to such amount, any amount of credit not thus deductible in such
21 taxable 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 § 187-h. Remediated brownfield credit for real property taxes for
27 large qualified sites. 1. Allowance of credit. A taxpayer shall be
28 allowed a credit, to be computed as provided in subdivision (b) of
29 section twenty-five of this chapter, against the taxes imposed by
30 section one hundred eighty-three, one hundred eighty-four and one
31 hundred eighty-five of this article. Provided, however, that the amount
32 of such credit allowed against the tax imposed by section one hundred
33 eighty-four of this article shall be the excess of the amount of such
34 credit over the amount of any credit allowed by this section against the
35 tax imposed by section one hundred eighty-three of this article.
36 2. Application of credit. In no event shall the credit under this
37 section be allowed in an amount which will reduce the tax payable to
38 less than the applicable minimum tax fixed by section one hundred eight-
39 y-three or one hundred eighty-five of this article. If, however, the
40 amount of credit allowed under this section for any taxable year reduces
41 the tax to such amount, any amount of credit not thus deductible in such
42 taxable year shall be treated as an overpayment of tax to be credited or
43 refunded in accordance with the provisions of section ten hundred eight-
44 y-six of this chapter. Provided, however, the provisions of subsection
45 (c) of section ten hundred eighty-eight of this chapter notwithstanding,
46 no interest shall be paid thereon.
47 § 59. Section 210 of the tax law is amended by adding two new subdivi-
48 sions 36 and 37 to read as follows:
49 36. Remediated brownfield credit for real property taxes for small
50 qualified sites. (a) Allowance of credit. A taxpayer which is a develop-
51 er of a small qualified site shall be allowed a credit for eligible real
52 property taxes, to be computed as provided in subdivision (b) of section
53 twenty-five of this chapter, against the tax imposed by this article.
54 For purposes of this subdivision, the terms "small qualified site" and
55 "developer" shall have the same meaning as set forth in paragraphs three
S. 6257 109 A. 9759
1 and five, respectively, of subdivision (a) of section twenty-five of
2 this chapter.
3 (b) Application of credit. The credit allowed under this subdivision
4 for any taxable year shall not reduce the tax due for such year to less
5 than the higher of the amounts prescribed in paragraphs (c) and (d) of
6 subdivision one of this section. However, if the amount of credit
7 allowed under this subdivision for any taxable year reduces the tax to
8 such amount, any amount of credit thus not deductible in such taxable
9 year shall be treated as an overpayment of tax to be credited or
10 refunded in accordance with the provisions of section ten hundred eight-
11 y-six of this chapter. Provided, however, the provisions of subsection
12 (c) of section ten hundred eighty-eight of this chapter notwithstanding,
13 no interest shall be paid thereon.
14 37. Remediated brownfield credit for real property taxes for large
15 qualified sites. (a) Allowance of credit. A taxpayer which is a develop-
16 er of a large qualified site shall be allowed a credit for eligible real
17 property taxes, to be computed as provided in subdivision (c) of section
18 twenty-five of this chapter, against the tax imposed by this article.
19 For purposes of this subdivision, the terms "large qualified site" and
20 "developer" shall have the same meaning as set forth in paragraphs four
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
29 year shall be treated as an overpayment of tax to be credited or
30 refunded in accordance with the provisions of section ten hundred eight-
31 y-six of this chapter. Provided, however, the provisions of subsection
32 (c) of section ten hundred eighty-eight of this chapter notwithstanding,
33 no interest shall be paid thereon.
34 § 60. Subparagraph (B) of paragraph 1 of subsection (i) of section 606
35 of the tax law, as separately amended by section 4 of part I, section 47
36 of part Y, section 4 of part CC, sections 4 and 15 of part GG, section 5
37 of part II and section 3 of part E of chapter 63 of the laws of 2000, is
38 amended to read as follows:
39 (B) shall be treated as the owner of a new business with respect to
40 such share if the corporation qualifies as a new business pursuant to
41 paragraph (j) of subdivision twelve of section two hundred ten of this
42 chapter[, unless the shareholder has previously received a refund by
43 reason of the application of this subparagraph, or this subsection as it
44 was in effect for taxable years beginning before nineteen hundred nine-
45 ty-four].
46 The corporation's
47 With respect to the credit base under
48 following credit section two hundred ten
49 under this section: or section fourteen
50 hundred fifty-six of this
51 chapter is:
52 Investment tax credit Investment credit base
53 under subsection (a) or qualified
54 rehabilitation
S. 6257 110 A. 9759
1 expenditures under
2 subdivision twelve of
3 section two hundred ten
4 Empire zone Cost or other basis
5 investment tax credit under subdivision
6 under subsection (j) twelve-B
7 of section two hundred
8 ten
9 Empire zone Eligible wages under
10 wage tax credit subdivision nineteen of
11 under subsection (k) section two hundred ten
12 or subsection (e) of
13 section fourteen hundred
14 fifty-six
15 Empire zone Qualified investments
16 capital tax credit and contributions under
17 under subsection (1) subdivision twenty of
18 section two hundred ten
19 or subsection (d) of
20 section fourteen hundred
21 fifty-six
22 Agricultural property tax Allowable school
23 credit under subsection (n) district property taxes under
24 subdivision twenty-two of
25 section two hundred ten
26 Credit for employment Qualified first-year wages or
27 of persons with dis- qualified second-year wages
28 abilities under under subdivision
29 subsection (o) twenty-three of section
30 two hundred ten
31 or subsection (f)
32 of section fourteen
33 hundred fifty-six
34 Employment incentive Applicable investment credit
35 credit under subsec- base under subdivision
36 tion (a-1) twelve-D of section two
37 hundred ten
38 Empire zone Applicable investment
39 employment credit under sub-
40 incentive credit under division twelve-C
41 subsection (j-1) of section two hundred ten
42 Alternative fuels credit Cost under subdivision
43 under subsection (p) twenty-four of section two
44 hundred ten
45 Qualified emerging Applicable credit base
46 technology company under subdivision twelve-E
S. 6257 111 A. 9759
1 employment credit of section two hundred ten
2 under subsection (q)
3 Qualified emerging Qualified investments under
4 technology company subdivision twelve-F of
5 capital tax credit section two hundred ten
6 under subsection (r)
7 Credit for purchase of an Cost of an automated
8 automated external defibrillator external defibrillator under
9 under subsection (s) subdivision twenty-five of
10 section two hundred ten
11 or subsection (j) of section
12 fourteen hundred fifty-six
13 Low-income housing Credit amount under
14 credit under subsection (x) subdivision thirty
15 of section two hundred ten or
16 subsection (1) of section
17 fourteen hundred fifty-six
18 Credit for transportation Amount of credit under sub-
19 improvement contributions division thirty-two of section
20 under subsection (z) two hundred ten or subsection
21 (n) of section fourteen
22 hundred fifty-six
23 IMB credit for energy Amount of credit
24 taxes under sub- under subdivision
25 section (t-1) twenty-six-a of
26 section two hundred ten
27 QEZE credit for real property Amount of credit under
28 taxes under subsection (bb) subdivision twenty-seven of
29 section two hundred ten or
30 subsection (o) of section
31 fourteen hundred fifty-six
32 QEZE tax reduction credit Amount of credit under
33 under subsection (cc) subdivision twenty-eight of
34 section two hundred ten or
35 subsection (p) of section
36 fourteen hundred fifty-six
37 Green building credit Amount of green building credit
38 under subsection (y) under subdivision thirty-one
39 of section two hundred ten
40 or subsection (m) of section
41 fourteen hundred fifty-six
42 Credit for long-term Qualified costs under
43 care insurance premiums subdivision twenty-five-a of
44 under subsection (aa) section two hundred ten
45 or subsection (k) of section
46 fourteen hundred fifty-six
S. 6257 112 A. 9759
1 Remediated brownfield Amount of credit under
2 credit for real property subdivision thirty-six
3 taxes for small qualified of section two hundred
4 sites under subsection ten or subsection (r) of
5 (jj) section fourteen hundred
6 fifty-six
7 Remediated brownfield Amount of credit under
8 credit for real property subdivision thirty-seven
9 taxes for large qualified of section two hundred
10 sites under subsection ten or subsection (s) of
11 (kk) section fourteen hundred
12 fifty-six
13 § 61. Section 606 of the tax law is amended by adding two new
14 subsections (jj) and (kk) to read as follows:
15 (jj) Remediated brownfield credit for real property taxes for small
16 qualified sites. (1) Allowance of credit. A taxpayer which is a develop-
17 er of a small qualified site shall be allowed a credit for eligible real
18 property taxes, to be computed as provided in subdivision (b) of section
19 twenty-five of this chapter, against the tax imposed by this article.
20 For purposes of this subsection, the terms "small qualified site" and
21 "developer" shall have the same meaning as set forth in paragraphs three
22 and five, respectively, of subdivision (a) of section twenty-five of
23 this chapter.
24 (2) Application of credit. If the amount of the credit allowed under
25 this subsection for any taxable year shall exceed the taxpayer's tax for
26 such year, the excess shall be treated as an overpayment of tax to be
27 credited or refunded in accordance with the provisions of section six
28 hundred eighty-six of this article, provided, however, that no interest
29 shall be paid thereon.
30 (kk) Remediated brownfield tax credit for real property taxes for
31 large qualified sites. (1) Allowance of credit. A taxpayer which is a
32 developer of a large qualified site shall be allowed a credit for eligi-
33 ble real property taxes, to be computed as provided in subdivision (c)
34 of section twenty-five of this chapter, against the tax imposed by this
35 article. For purposes of this subsection, the terms "large qualified
36 site" and "developer" shall have the same meaning as set forth in para-
37 graphs four and five, respectively, of subdivision (a) of section twen-
38 ty-five of this chapter.
39 (2) Application of credit. If the amount of the credit allowed under
40 this subsection for any taxable year shall exceed the taxpayer's tax for
41 such year, the excess shall be treated as an overpayment of tax to be
42 credited or refunded in accordance with the provisions of section six
43 hundred eighty-six of this article, provided, however, that no interest
44 shall be paid thereon.
45 § 62. Section 1456 of the tax law is amended by adding two new
46 subsections (r) and (s) to read as follows:
47 (r) Remediated brownfield credit for real property taxes for small
48 qualified sites. (1) Allowance of credit. A taxpayer which is a develop-
49 er of a small qualified site shall be allowed a credit for eligible real
50 property taxes, to be computed as provided in subdivision (b) of section
51 twenty-five of this chapter, against the tax imposed by this article.
52 For purposes of this subsection, the terms "small qualified site" and
53 "developer" shall have the same meaning as set forth in paragraphs three
54 and five, respectively, of subdivision (a) of section twenty-five of
55 this chapter.
S. 6257 113 A. 9759
1 (2) Application of credit. The credit allowed under this subsection
2 for any taxable year shall not reduce the tax due for such year to less
3 than the minimum tax fixed by paragraph three of subsection (b) of
4 section fourteen hundred fifty-five of this article. However,if the
5 amount of credit allowed under this subsection for any taxable year
6 reduces the tax to such amount, any amount of credit thus not deductible
7 in such taxable year shall be treated as an overpayment of tax to be
8 credited or refunded in accordance with the provisions of section ten
9 hundred eighty-six of this chapter. Provided, however, the provisions of
10 subsection (c) of section ten hundred eighty-eight of this chapter
11 notwithstanding, no interest shall be paid thereon.
12 (s) Remediated brownfield credit for real property taxes for large
13 qualified sites. (1) Allowance of credit. A taxpayer which is a develop-
14 er of a large qualified site shall be allowed a credit for eligible real
15 property taxes, to be computed as provided in subdivision (c) of
16 section twenty-five of this chapter, against the tax imposed by this
17 article. For purposes of this subsection, the terms "large qualified
18 site" and "developer" shall have the same meaning as set forth in para-
19 graphs four and five, respectively, of subdivision (a) of section twen-
20 ty-five of this chapter.
21 (2) Application of credit. The credit allowed under this subsection
22 for any taxable year shall not reduce the tax due for such year to less
23 than the minimum tax fixed by paragraph three of subsection (b) of
24 section fourteen hundred fifty-five of this article. However, if the
25 amount of credit allowed under this subsection for any taxable year
26 reduces the tax to such amount, any amount of credit thus not deductible
27 in such taxable year shall be treated as an overpayment of tax to be
28 credited or refunded in accordance with the provisions of section ten
29 hundred eighty-six of this chapter. Provided, however, the provisions of
30 subsection (c) of section ten hundred eighty-eight of this chapter
31 notwithstanding, no interest shall be paid thereon.
32 § 63. Section 1511 of the tax law is amended by adding two new subdi-
33 visions (v) and (w) to read as follows:
34 (v) Remediated brownfield credit for real property taxes for small
35 qualified sites. (1) Allowance of credit. A taxpayer which is a develop-
36 er of a small qualified site shall be allowed a credit for eligible real
37 property taxes, to be computed as provided in subdivision (b) of section
38 twenty-five of this chapter, against the tax imposed by this article.
39 For purposes of this subdivision, the terms "small qualified site" and
40 "developer" shall have the same meaning as set forth in paragraphs three
41 and five, respectively, of subdivision (a) of section twenty-five of
42 this chapter.
43 (2) Application of credit. The credit allowed under this subdivision
44 for any taxable year shall not reduce the tax due for such year to less
45 than the minimum tax fixed by paragraph four of subdivision (a) of
46 section fifteen hundred two of this article. However, if the amount of
47 credit allowed under this subdivision for any taxable year reduces the
48 tax to such amount, any amount of credit thus not deductible in such
49 taxable year shall be treated as an overpayment of tax to be credited or
50 refunded in accordance with the provisions of section ten hundred eight-
51 y-six of this chapter. Provided, however, the provisions of subsection
52 (c) of section ten hundred eighty-eight of this chapter notwithstanding,
53 no interest shall be paid thereon.
54 (w) Remediated brownfield credit for real property taxes for large
55 qualified sites. (1) Allowance of credit. A taxpayer which is a develop-
56 er of a large qualified site shall be allowed a credit for eligible real
S. 6257 114 A. 9759
1 property taxes, to be computed as provided in subdivision (c) of section
2 twenty-five of this chapter, against the tax imposed by this article.
3 For purposes of this subdivision, the terms "large qualified site" and
4 "developer" shall have the same meaning as set forth in paragraphs four
5 and five, respectively, of subdivision (a) of section twenty-five of
6 this chapter.
7 (2) Application of credit. The credit allowed under this subdivision
8 for any taxable year shall not reduce the tax due for such year to less
9 than the minimum tax fixed by paragraph four of subdivision (a) of
10 section fifteen hundred two of this article. However, if the amount of
11 credit allowed under this subdivision for any taxable year reduces the
12 tax to such amount, any amount of credit thus not 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 § 64. Subdivision 7 of section 56-0101 of the environmental conserva-
19 tion law, as added by chapter 413 of the laws of 1996, is amended to
20 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 § 65. 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.
27 [For] 1. "Municipality", for purposes of this title ["municipality"],
28 shall have the same meaning as provided in subdivision [twelve] fifteen
29 of section 56-0101 of this article, except that such term shall not
30 refer to a municipality that generated, transported or disposed of,
31 arranged for, or that caused the generation, transportation or disposal
32 of hazardous substance located at real property proposed to be investi-
33 gated or to be remediated under an environmental restoration project.
34 2. "Cost", for purposes of this title, shall have the same meaning as
35 provided in subdivision four of section 56-0101 of this article, except
36 that such term shall not include the requirement to reduce the cost of
37 an approved project in accordance with any federal or state funds for
38 the project received or to be received by the municipality.
39 3. "Environmental restoration investigation project", shall mean a
40 project, undertaken in accordance with the requirements of this title,
41 to investigate hazardous substances located in, on or emanating from
42 real property either held in title by a municipality or for which fee
43 title may be acquired by a municipality.
44 4. "Environmental restoration remediation project", shall mean a
45 project, undertaken in accordance with the requirements of this title,
46 to remediate hazardous substances located in, on or emanating from real
47 property held in title by a municipality.
48 § 66. Section 56-0503 of the environmental conservation law, as added
49 by chapter 413 of the laws of 1996, is amended to read as follows:
50 § 56-0503. Environmental restoration projects; state assistance.
51 1. The commissioner may enter into a contract with a municipality to
52 provide state assistance to such municipality to undertake an environ-
53 mental restoration project. The amount of state assistance payment for
54 such project shall be up to an amount of [seventy-five]:
55 (a) ninety percent of the eligible costs of such project, subject to
56 the provisions set forth in paragraph (b) of this subdivision;
S. 6257 115 A. 9759
1 (b) one hundred percent of the eligible costs of any remediation
2 directed by the department to be undertaken outside the boundaries of
3 the real property that is subject to an environmental restoration
4 project approved by the department.
5 2. In addition to such other terms and conditions that the commis-
6 sioner may deem to be appropriate, such contract shall provide as
7 follows:
8 (a) An estimate of the cost of such project as determined by the
9 commissioner at the time of such contract's execution;
10 (b) An agreement by the commissioner to periodically reimburse the
11 municipality for eligible costs incurred during the progress of such
12 project. Such payments shall be subject to final computation and deter-
13 mination of the total state assistance share of the eligible costs of
14 the entire environmental restoration project;
15 (c) A provision [providing] that if [any federal payments], in accord-
16 ance with the required department approval of any settlement with a
17 responsible party, any responsible party payments[, and/or payments
18 received from the disposition of the real property subject to an envi-
19 ronmental restoration project] become available to the municipality,
20 before, during or after the completion of an environmental restoration
21 project, which were not included when the state share was calculated
22 pursuant to this section, the state assistance share shall be recalcu-
23 lated and the municipality shall pay to the state, for deposit into the
24 environmental restoration project account of the hazardous waste remedi-
25 al fund established under section ninety-seven-b of the state finance
26 law, the difference between the original state assistance payment and
27 the recalculated state share. Recalculation of the state share shall be
28 done each time a [federal payment,] payment from a responsible party[,
29 or payment received from the disposition of such property] is received
30 by the municipality;
31 (d) A provision that if any monies received from [any federal
32 payments, payments from a responsible party, and/or payments received
33 from] the disposition of [such property] the real property subject to an
34 environmental restoration project exceed the municipality's cost of such
35 property, including taxes owed to the municipality upon acquisition, and
36 the municipality's cost of the environmental restoration project, the
37 amount of such excess necessary to reimburse the state of New York for
38 the state assistance provided to the municipality under this title shall
39 be [divided equally between the municipality and the state of New York,
40 the state share of which shall be deposited] paid to the state of New
41 York for deposit into the environmental restoration project account of
42 the hazardous waste remedial fund established under section ninety-sev-
43 en-b of the state finance law;
44 (e) An agreement by the municipality to proceed expeditiously with
45 and complete such project in accordance with plans approved for payment
46 of the municipality's share of such project's cost;
47 (f) An agreement by the municipality that it shall prepare and imple-
48 ment a public participation plan [prior to remedial activities undertak-
49 en pursuant to this section. The] for environmental restoration projects
50 undertaken pursuant to this title. The requirements of the plan will be
51 governed by decision of the municipality to proceed with remediation of
52 the property under this title. However, in all cases, implementation of
53 the plan shall be completed as part of the project. In those cases where
54 the municipality does not intend to proceed with remediation of the
55 property, the plan shall provide timely and accessible disclosure of the
56 results of the investigation to the interested public. The plan shall
S. 6257 116 A. 9759
1 provide for adequate public notice of the availability of the investi-
2 gation results; an opportunity for submission of written comments; and a
3 filing of a notice of the results of the investigation as authorized by
4 subdivision three of section three hundred sixteen-b of the real proper-
5 ty law. Where the municipality intends to proceed with remediation of
6 the property under this title, the plan shall provide opportunities for
7 early, inclusive participation prior to the selection of a preferred
8 course of action, facilitate communication, including dialogue among the
9 municipality, the department, and the interested public, and provide
10 timely and accessible disclosure of information. At a minimum, the
11 design of the plan shall take into account the scope and scale of the
12 proposed environmental restoration remediation project, local interest,
13 and other relevant factors. The plan shall also provide for: adequate
14 public notice of the availability of a draft remedial plan; a forty-five
15 day period for submission of written comments; a public hearing on such
16 plan if substantive issues are raised by members of the affected commu-
17 nity; and technical assistance if so requested by members of the
18 affected community. Provided, however, that the requirements of this
19 subdivision shall not apply to interim remedial measures undertaken as
20 part of an environmental restoration project [to address emergency site
21 conditions]. In such instance, the department or such persons implement-
22 ing the interim remedial measure or making the request shall conduct
23 public participation activities as the department deems necessary and
24 appropriate under such circumstances.
25 (g) An agreement by the municipality that it shall put into place any
26 engineering and/or institutional controls (including deed restrictions)
27 that the department may deem necessary to allow the contemplated use to
28 proceed, that such engineering and/or institutional controls shall be
29 binding on such municipality, any successor in title, and any lessees
30 and that any successors in title and any lessees cannot challenge state
31 enforcement of such controls;
32 (h) In the event that such engineering controls and/or institutional
33 controls are necessary the municipality and its successors in title
34 shall agree to develop a plan which ensures that such engineering and/or
35 institutional controls be continually maintained in the manner required
36 by the department. Such plan shall be approved by the department. Fail-
37 ure to implement the plan or maintain such controls shall constitute a
38 violation of such contract and shall terminate for the duration of such
39 failure the protection afforded under subdivision one of section 56-0509
40 of this title;
41 (i) In the event that deed restrictions are required, such munici-
42 pality shall agree to cause such deed restrictions to be recorded and
43 indexed as declarations of restrictions in the office of the recording
44 officer of the county or counties where the real property subject to
45 such environmental restoration project is located in the manner
46 prescribed by article nine of the real property law. Such declaration of
47 restriction shall contain the name of the owner of record of such prop-
48 erty, along with the tax map parcel number or the section, block, and
49 lot number of such property; and
50 (j) A provision that exempts a municipality and any successor in
51 title, lender, or lessee from the requirement to obtain any state or
52 local permit or other authorization for any activity needed to implement
53 [such] a project [that is conducted on the real property subject to such
54 project so long as] to investigate or remediate hazardous substances
55 pursuant to this title, provided that the activity is conducted in a
S. 6257 117 A. 9759
1 manner which satisfies all substantive technical requirements applicable
2 to like activity conducted pursuant to a permit.
3 § 67. Section 56-0505 of the environmental conservation law, as added
4 by chapter 413 of the laws of 1996, is amended to read as follows:
5 § 56-0505. Environmental restoration projects; criteria.
6 1. The department shall determine the eligibility of an environmental
7 restoration project for state assistance under this title based upon the
8 following criteria:
9 (a) the benefit to the environment realized by the expeditious remedi-
10 ation of the property proposed to be subject to such project;
11 (b) the economic benefit to the state by the expeditious remediation
12 of the property proposed to be subject to such project; and
13 (c) the potential opportunity of the property proposed to be subject
14 to such project to be used for public recreational purposes[; and
15 (d) the opportunity for other funding sources to be available for the
16 remediation of such property, including, but not limited to, enforcement
17 actions against responsible parties (other than the municipality to
18 which state assistance was provided under this title; or a successor in
19 title, lender, or lessee who was not otherwise a responsible party prior
20 to such municipality taking title to the property), state assistance
21 payments pursuant to title thirteen of article twenty-seven of this
22 chapter, and the existence of private parties willing to remediate such
23 property using private funding sources. Highest priority shall be grant-
24 ed to projects for which other such funding sources are not available].
25 2. The department shall not enter into a contract with a municipality
26 pursuant to section 56-0503 for an environmental restoration project for
27 any site listed in the registry of inactive hazardous waste sites under
28 section 27-1305 of this chapter and given a classification as described
29 in subparagraph one or two of paragraph b of subdivision four of such
30 section 27-1305.
31 3. The remediation objective of an environmental restoration remedi-
32 ation project shall meet the same standard for protection of public
33 health and the environment that applies to remedial actions undertaken
34 pursuant to section 27-1313 of this chapter.
35 4. [After completion of such project, the municipality may use the
36 property for public purposes or may dispose of it. If the municipality
37 shall dispose of such property by sale to a responsible party, such
38 party shall pay to such municipality, in addition to such other consid-
39 eration, an amount of money constituting the amount of state assistance
40 provided to the municipality under this title plus accrued interest and
41 transaction costs and the municipality shall deposit that money into the
42 environmental restoration project account of the hazardous waste remedi-
43 al fund established under section ninety-seven-b of the state finance
44 law] Property may continue to be used for the purpose for which it is
45 being used prior to achievement of the environmental restoration
46 project's objectives if the department determines that the existing
47 state of contamination does not pose a risk sufficient to prohibit such
48 use from continuing, giving due regard to human health and protection,
49 and if the department determines that such use does not interfere with
50 the environmental restoration project.
51 5. In the event that [such] an environmental restoration project's
52 remediation objective shall not have been attained to the department's
53 satisfaction at the time of the municipality's disposition of such prop-
54 erty, such municipality shall be liable to ensure that such objective is
55 attained within the time called for in the state assistance contract.
S. 6257 118 A. 9759
1 6. If the municipality shall dispose of property subject to an envi-
2 ronmental restoration project by sale to a responsible party, such party
3 shall pay to such municipality, in addition to such other consideration,
4 an amount of money constituting the amount of state assistance provided
5 to the municipality under this title plus accrued interest and trans-
6 action costs, which the municipality shall then pay to the state for
7 deposit into the environmental restoration project account of the
8 hazardous waste remedial fund established under section ninety-seven-b
9 of the state finance law.
10 § 68. Section 56-0507 of the environmental conservation law, as added
11 by chapter 413 of the laws of 1996, is amended to read as follows:
12 § 56-0507. Recovery of state assistance.
13 1. A municipality receiving state assistance under this title under-
14 takes an environmental restoration project as agent of the state with
15 respect to the incurrence of eligible costs.
16 2. The state shall make all reasonable efforts to recover the full
17 amount of any state assistance provided under this title through liti-
18 gation brought under this section or other statute or under the common
19 law, or through cooperative agreements, with responsible parties (other
20 than the municipality to which state assistance was provided under this
21 title; or a successor in title, lender or lessee who was not otherwise a
22 responsible party prior to the municipality taking title to such proper-
23 ty). Notwithstanding any requirement under this section, the state may
24 elect not to recover all or any portion of its costs from a party
25 responsible according to applicable principles of statutory or common
26 law liability where such party's liability arises solely from ownership
27 or operation of the subject property subsequent to the disposal of
28 hazardous substances at such property.
29 3. Any and all monies recovered or reimbursed pursuant to this section
30 shall be deposited into the environmental restoration project account of
31 the hazardous waste [remediation] remedial fund established under
32 section ninety-seven-b of the state finance law.
33 § 69. Subdivisions 1, 2, 3 and 5 of section 56-0509 of the environ-
34 mental conservation law, as added by chapter 413 of the laws of 1996,
35 are amended to read as follows:
36 1. (a) Notwithstanding any other provision of law and except as
37 provided in subdivision two of this section and in paragraph (h) of
38 subdivision two of section 56-0503 of this title, the following shall
39 not be liable to the state upon any statutory or common law cause of
40 action, or to any person upon any statutory cause of action arising out
41 of the presence of any hazardous substance in or on property at any time
42 before the effective date of a contract entered into pursuant to this
43 title:
44 (i) a municipality receiving state assistance under this title to
45 undertake an environmental restoration project and complying with the
46 terms and conditions of the contract providing such assistance; and
47 (ii) a successor in title to the real property subject to such project
48 where the municipality holds or held title to the real property; any
49 lessee of such property; and any person that provides financing to such
50 party relative to the remediation, restoration, or redevelopment of such
51 property, provided that such successor in title, lessee, or lender did
52 not generate, arrange for, transport, or dispose, and did not cause the
53 generation, arrangement for, transportation, or disposal of any hazard-
54 ous substance located at such property, and did not own such property.
55 (b) Notwithstanding any other provision of this title, any person
56 seeking the benefit of this subdivision shall bear the burden of proving
S. 6257 119 A. 9759
1 that a cause of action, or any part thereof, is attributable solely to
2 hazardous substances present in or on such parcel before the effective
3 date of such contract.
4 2. [Subdivision one of this section shall not apply to relieve any
5 municipality, successor in title, lessee, or lender from liability aris-
6 ing from:] Any municipality, successor in title, lessee, or lender iden-
7 tified in paragraph (a) of subdivision one of this section shall not
8 receive the liability protections identified in subdivisions one and
9 three of this section where liability results from:
10 (a) failing to implement such project to the department's satisfaction
11 or failing to comply with the terms and conditions of the contract;
12 (b) fraudulently demonstrating that the cleanup levels identified in
13 or to be identified in accordance with such project were reached;
14 (c) causing the release or threat of release at the property subject
15 to such project of any hazardous substance after the effective date of
16 such contract; [or]
17 (d) [changing such property's use from the intended use as identified
18 in the contract pursuant to section 56-0503 to a use requiring a lower
19 level of residual contamination unless the additional remedial activ-
20 ities are undertaken which shall meet the same standard for protection
21 of public health and the environment that applies to remedial actions
22 undertaken pursuant to 27-1313 of this chapter so that such use can be
23 implemented with sufficient protection of public health and the environ-
24 ment.] violating the provisions of section 56-0511 of this title;
25 (e) failing to implement the plan or to implement and maintain the
26 engineering and/or institutional controls required by the department in
27 accordance with paragraph (h) of subdivision two of section 56-0503 of
28 this title; or
29 (f) using property subject to an environmental restoration project in
30 violation of the requirements of this title.
31 3. The state shall indemnify and save harmless any municipality,
32 successor in title, lessee, or lender [indentified] identified in para-
33 graph (a) of subdivision one of this section in the amount of any judg-
34 ment, or settlement, obtained against such municipality, successor in
35 title, lessee or lender in any court for any common law cause of action
36 arising out of the presence of any hazardous substance in or on property
37 at anytime before the effective date of a contract entered into pursuant
38 to this title. Such municipality, successor in title, lessee or lender
39 shall be entitled to representation by the attorney general, unless the
40 attorney general determines, or a court of competent jurisdiction deter-
41 mines, that such representation would constitute a conflict of interest,
42 in which case the attorney general shall certify to the comptroller that
43 such party is entitled to private counsel of its choice, and reasonable
44 attorneys' fees and expenses shall be reimbursed by the state. Any
45 settlement of such an action shall be subject to the approval of the
46 attorney general as to form and amount, and this subdivision shall not
47 apply to any settlement of any such action which has not received such
48 approval.
49 5. In addition to any other powers the department may have, including,
50 but not limited to, the powers set forth in section 56-0517 of this
51 title, the department shall have the authority to periodically inspect
52 [each project site] property to ensure that the use of the property
53 complies with the terms and conditions of [the contract] any engineering
54 and/or institutional controls placed on the property.
55 § 70. Section 56-0511 of the environmental conservation law, as added
56 by chapter 413 of the laws of 1996, is amended to read as follows:
S. 6257 120 A. 9759
1 § 56-0511. Change of use.
2 1. At least sixty days before the start of physical alteration or
3 construction constituting a change of use at a property investigated or
4 remediated under an environmental restoration project, or at least sixty
5 days before a change of use at such a property not involving any phys-
6 ical alteration or construction, as the case may be, the person or enti-
7 ty proposing to make a change of use shall provide written notification
8 to the department and the clerks of the county and other municipalities
9 in which such property is located.
10 2. No person shall engage in any activity at a property investigated
11 or remediated under an environmental restoration project that is not
12 consistent with restrictions placed upon the use of the property, or
13 that will, or that reasonably is anticipated to: prevent or interfere
14 significantly with a proposed, ongoing, or completed project; or expose
15 the public health or the environment to a significantly increased threat
16 of harm or damage [at] from such property. If the commissioner deter-
17 mines that a proposed change of use is prohibited pursuant to this
18 section, he shall, within forty-five days after receipt of the complete
19 notice required by this section, provide the person giving such notice
20 with a written determination that such change of use will not be author-
21 ized, together with the reasons for such determination.
22 3. For the purposes of this section:
23 (i) "change of use" means the transfer of title to all or part of
24 property subject to an environmental restoration [agreement] project,
25 the erection of any structure on such property, [the paving of such
26 property for use as a roadway or parking lot,] and the creation of a
27 park or other public or private recreational facility on such property,
28 or any activity that is likely to disrupt or expose hazardous substances
29 or to increase direct human exposure; or any other conduct that will or
30 may tend to significantly interfere with an ongoing or completed envi-
31 ronmental restoration project. "Change of use" shall not include a
32 transfer of property where physical alteration of the property subject
33 to an environmental restoration project is not contemplated. In the case
34 of title transfers with no physical alteration of property subject to an
35 environmental restoration project, owners of property shall provide
36 notice of proposed transfers of title within a reasonable time in
37 advance of the transfer.
38 (ii) "complete notice" means a notice that adequately apprises the
39 department of the contemplated physical alteration of the property and
40 how such alteration may affect the property's proposed, ongoing, or
41 completed [remediation] project, or of the proposed new owner's ability
42 to implement the engineering and institutional controls associated with
43 the [property's remediation] property.
44 § 71. The environmental conservation law is amended by adding three
45 new sections 56-0513, 56-0515 and 56-0517 to read as follows:
46 § 56-0513. Immunity.
47 Section eight of the court of claims act or any other provision of law
48 to the contrary notwithstanding, the state shall be immune from liabil-
49 ity and action with respect to any act or omission done in the discharge
50 of the department's responsibilities pursuant to this title; provided,
51 however, that this section shall not limit the liability which may
52 otherwise exist for the unlawful, willful or malicious acts or omissions
53 on the part of the state, state agencies, or their officers, employees
54 or agents; or for the ownership or responsibility for the disposal of
55 hazardous substances according to law.
56 § 56-0515. Permit waivers.
S. 6257 121 A. 9759
1 The department, by and through the commissioner, shall be authorized
2 to exempt a person from the requirement to obtain any state or local
3 permit or other authorization for any activity needed to implement a
4 project to investigate or remediate hazardous substances pursuant to
5 this title; provided, that the activity is conducted in a manner which
6 satisfies all substantive technical requirements applicable to like
7 activity conducted pursuant to a permit.
8 § 56-0517. Access to sites.
9 The department, by and through the commissioner, shall be authorized
10 to:
11 1. Require that any person permit a duly designated officer or employ-
12 ee of the department or of a municipal corporation, or any agent,
13 consultant or contractor of the department or of a municipal corpo-
14 ration, or any other person, including an employee, agent, consultant or
15 contractor of a responsible person acting at the direction of the
16 department, so authorized in writing by the commissioner, to enter upon
17 any property which has or may have hazardous substance on such property,
18 and/or areas near such property, for the following purposes:
19 (a) To inspect and take samples of such hazardous substance and/or
20 environmental media, utilizing such sampling methods as may be necessary
21 or appropriate including without limitation soil borings and monitoring
22 wells; provided, that no sampling methods involving the substantial
23 disturbance of the ground surface of such property may be utilized until
24 after a minimum of ten days' written notice thereof shall have been
25 provided to the owner and operator and occupant of such property, if
26 identifiable by reasonable efforts, unless the commissioner makes a
27 written determination that such notice will not allow the protection of
28 the public health or the environment, in which case two days' written
29 notice shall be sufficient;
30 (b) To implement the cleanup, removal, remediation or restoration of
31 hazardous substances and/or environmental media; provided, that no such
32 work may be undertaken until after a minimum of ten days' written notice
33 thereof shall have been provided to the owner and operator and occupant
34 of such property, if identifiable by reasonable efforts, unless the
35 commissioner makes a written determination that such notice will not
36 allow the protection of the public health or the environment, in which
37 case two days' written notice shall be sufficient.
38 2. (a) Require that any person furnish to the department, in a form
39 and manner as prescribed by the department, information relating to the
40 current and past hazardous substance generation, treatment, storage,
41 disposal and/or transportation activities of such person or any other
42 person now or formerly under the control of such person; in the event
43 such person cannot comply therewith, in whole or in part, such person
44 shall furnish to the department information describing all efforts made
45 by such person to comply therewith; any information so furnished to the
46 department shall be considered a "written instrument" as defined in
47 subdivision three of section 175.00 of the penal law;
48 (b) Require that any person permit a duly designated officer or
49 employee of the department at all reasonable times to have access to and
50 to copy all books, papers, documents and records relating to the current
51 and past hazardous substance generation, treatment, storage, disposal
52 and/or transportation activities of such person or any person now or
53 formerly under the control of such person;
54 (c) Require, by subpoena issued in the name of the department, the
55 production of books, papers, documents and other records, and the rendi-
56 tion of testimony by deposition under oath of any person relating to the
S. 6257 122 A. 9759
1 current and past hazardous substance generation, treatment, storage,
2 disposal and/or transportation activities of such person or any person
3 now or formerly under the control of such person; such subpoenas and
4 depositions shall be regulated by the civil practice law and rules; the
5 commissioner may invoke the powers of the supreme court of the state of
6 New York to compel compliance therewith.
7 § 72. Subdivision 2 of section 97-b of the state finance law, as
8 amended by chapter 413 of the laws of 1996, is amended to read as
9 follows:
10 2. Such fund shall consist of all of the following:
11 (a) moneys appropriated for transfer to the fund's site investigation
12 and construction account; (b) all fines and other sums accumulated in
13 the fund prior to April first, nineteen hundred eighty-eight pursuant to
14 section 71-2725 of the environmental conservation law for deposit in the
15 fund's site investigation and construction account; (c) all moneys
16 collected or received by the department of taxation and finance pursuant
17 to section 27-0923 of the environmental conservation law for deposit in
18 the fund's industry fee transfer account; (d) all moneys paid into the
19 fund pursuant to section 72-0201 of the environmental conservation law
20 which shall be deposited in the fund's industry fee transfer account;
21 (e) all moneys paid into the fund pursuant to section one hundred eight-
22 y-six of the navigation law which shall be deposited in the fund's
23 industry fee transfer account; (f) all moneys paid into the fund by
24 municipalities for repayment of landfill closure loans made pursuant to
25 former title five of article fifty-two of the environmental conservation
26 law for deposit in the fund's site investigation and construction
27 account; (g) all monies recovered under [section] sections 56-0503,
28 56-0505 and 56-0507 of the environmental conservation law for deposit
29 into the fund's environmental restoration project account; and (h) other
30 moneys credited or transferred thereto from any other fund or source for
31 deposit in the fund's site investigation and construction account.
32 § 73. This act shall take effect immediately, provided that sections
33 one, thirty-six, thirty-seven, thirty-eight, thirty-nine, forty-one,
34 forty-two, forty-three, forty-four, forty-five, sixty-four, sixty-five,
35 sixty-six, sixty-seven, sixty-eight, sixty-nine, seventy, seventy-one
36 and seventy-two of this act shall take effect April 1, 2002; provided,
37 however, if this act shall become a law after such date it shall take
38 effect immediately and shall be deemed to have been in full force and
39 effect on and after April 1, 2002, and provided further that sections
40 forty-six, forty-seven, forty-eight, fifty, fifty-five and fifty-six of
41 this act shall apply to taxable years beginning on or after January 1,
42 2003, but only to site costs incurred and property placed in service on
43 or after January 1, 2002; provided that sections fifty-seven, fifty-
44 eight, fifty-nine, sixty-one, sixty-two and sixty-three of this act
45 shall apply to tax years beginning on or after January 1, 2004.
46 Provided further that the IMB credit for energy taxes under subsection
47 (t-1) of section 606 of the tax law referenced in sections forty-nine
48 and sixty of this act shall apply to taxable years commencing on and
49 after January 1, 2002 and shall expire on the same date as provided in
50 subdivision (a) of section 49 of part Y of chapter 63 of the laws of
51 2000. Provided further, subdivisions 13 and 14 of section 97-b of the
52 state finance law, as designated by section thirty-six of this act,
53 shall be deemed repealed effective April first of the state fiscal year
54 following the certification provided for in subdivision 15 of such
55 section 97-b; and provided further that the state comptroller shall
56 notify the legislative bill drafting commission upon the occurrence of
S. 6257 123 A. 9759
1 the certification provided for in subdivision 15 of section 97-b of the
2 state finance law in order that the commission may maintain an accurate
3 and timely effective data base of the official text of the laws of the
4 state of New York in furtherance of effecting the provisions of section
5 44 of the legislative law and section 70-b of the public officers law.
6 PART K
7 Section 1. Chapter 174 of the laws of 1990, constituting the youth
8 opportunity program act, is REPEALED.
9 § 2. This act shall take effect April 1, 2002; provided, however, if
10 this act shall become a law after such date it shall take effect imme-
11 diately and shall be deemed to have been in full force and effect on and
12 after April 1, 2002.
13 § 2. Severability clause. If any clause, sentence, paragraph, subdivi-
14 sion, section or part of this act shall be adjudged by any court of
15 competent jurisdiction to be invalid, such judgment shall not affect,
16 impair, or invalidate the remainder thereof, but shall be confined in
17 its operation to the clause, sentence, paragraph, subdivision, section
18 or part of this act directly involved in the controversy in which the
19 judgment shall have been rendered.
20 § 3. This act shall take effect immediately provided, however, that
21 the applicable effective date of Parts A through K of this act shall be
22 as specifically set forth in the last section of such Parts.
Memorandum in Support