Bill - 2003-04 TED
STATE OF NEW YORK
________________________________________________________________________
S. 1409 A. 2109
SENATE - ASSEMBLY
January 29, 2003
___________
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 appropriate monies for transportation projects and costs; to
amend chapter 329 of the laws of 1991 amending the state finance law
and other laws relating to the establishment of the dedicated highway
and bridge trust fund; to amend chapter 61 of the laws of 2000 amend-
ing the public authorities law and chapter 329 of the laws of 1991
amending the state finance law and other laws relating to the estab-
lishment of the dedicated highway and bridge trust fund, in relation
to the authorization of the state's five-year transportation plan
(Part A); to amend chapter 3 of the laws of 2002, amending the vehicle
and traffic law relating to reducing the blood alcohol level threshold
for determination of intoxication, in relation to the effective date
of such chapter (Part B); to amend the vehicle and traffic law, in
relation to special hauling permits and divisible load permits and
repealing certain provisions of such law relating thereto (Part C); to
repeal section 8 of chapter 533 of the laws of 1993 amending the vehi-
cle and traffic law and the correction law relating to the suspension
and revocation of driver's licenses upon conviction of certain drug-
related offenses, and to repeal section 28 of part E of chapter 58 of
the laws of 1998 relating to a report of the division of criminal
justice services, in relation to the suspension and revocation of
drivers' licenses upon conviction of certain drug-related offenses,
and to amend section 9 of chapter 533 of the laws of 1993, amending
the vehicle and traffic law and the correction law relating to the
suspension and revocation of driver's licenses upon conviction of
certain drug-related offenses, in relation to the effectiveness there-
of (Part D); to amend the public authorities law, in relation to
authorization of an increased voluntary contribution by the New York
power authority (Part E); to amend the public authorities law, in
relation to indebtedness of the battery park city authority and
providing for the repeal of certain provisions upon expiration thereof
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD12113-01-3
S. 1409 2 A. 2109
(Part F); to authorize the dormitory authority of the State of New
York to provide funding for the Cornell University theory center (Part
G); relating to contracts with neighborhood and rural preservation
companies (Part H); to amend the racing, pari-mutuel wagering and
breeding law, in relation to the payment of regulatory fees, revising
the amounts retained on wagers, expanding simulcast wagering and phone
betting; to amend the state finance law, in relation to establishing
the racing regulation account; to repeal sections 905-a and 906 of the
racing, pari-mutuel wagering and breeding law, relating to certain
on-track wagers; and to repeal subdivisions 6 and 7 of section 1007 of
the racing, pari-mutuel wagering and breeding law, relating to certain
simulcasts track to track (Part I); to amend the public service law,
in relation to the deposit of moneys to the general fund; to amend the
general business law, in relation to the deposit of moneys to the
general fund; and to repeal certain provisions of the state finance
law relating thereto (Part J); to amend the agriculture and markets
law, in relation to establishing and increasing certain fees and
requiring the registration of certain food establishments (Part K); to
amend the public authorities law, in relation to the assessment and
reimbursement of State expenditures (Part L); to amend the vehicle and
traffic law, in relation to vessel registration fees (Part M); to
authorize the urban development corporation to issue bonds (Part N);
to amend chapter 393 of the laws of 1994 amending the New York state
urban development corporation act, in relation to the effectiveness
thereof (Part O); to provide for the utilization of utility assessment
funds (Part P); to amend the environmental conservation law, in
relation to mined land reclamation fees (Part Q); to provide for the
transfer of moneys from the New York state energy research and devel-
opment authority (Part R); to provide for the utilization of utility
assessment funds (Part S); to amend the environmental conservation
law, in relation to oil, gas and solution mining regulation and recla-
mation fees (Part T); to amend the state finance law and the environ-
mental conservation law, in relation to expanding the purposes for
which the environmental protection fund can be used; and in relation
to municipal landfill closure projects and state assistance payments
for beneficial end-uses and landfill gas management systems and to
provide state assistance for municipal landfill gas management
projects at active landfills; and to repeal certain provisions of the
state finance law relating thereto (Part U); to amend the environ-
mental conservation law, in relation to increasing certain fees (Part
V); to amend the vehicle and traffic law, the tax law and the state
finance law, in relation to increasing certain motor vehicle trans-
action fees and to repeal section 91 of the state finance law relating
to the transportation safety account (Part W); to amend the environ-
mental conservation law and the vehicle and traffic law, in relation
to enacting the waste tire management and recycling act of 2003 (Part
X); to amend the environmental conservation law, the vehicle and traf-
fic law and the state finance law, in relation to heavy duty vehicle
emissions violations and to amend chapter 621 of the laws of 1998,
amending the environmental conservation law, the public authorities
law, the state finance law, the transportation law and the vehicle and
traffic law relating to heavy duty vehicle emissions reduction, in
relation to the effectiveness thereof (Part Y); to amend the environ-
mental conservation law, the agriculture and markets law, the state
finance law, and the highway law, in relation to the Hudson River
Valley Greenway and repealing sections 44-0111, 44-0113, and 44-0117
S. 1409 3 A. 2109
of the environmental conservation law relating to the Greenway herit-
age conservancy for the Hudson river valley (Part Z); and to amend the
civil practice law and rules, in relation to the commencement of
certain causes of action by the state arising under the environmental
conservation law; to amend the environmental conservation law, in
relation to water pollution, waste, inactive hazardous waste site
remediation, soil cleanup levels, the voluntary cleanup act, the
implementation of the clean water/clean air bond act of 1996,
violations of article 27 of such law, protection of natural resources,
environmental regulatory program fees; to amend the general municipal
law, in relation to state assistance for brownfield redevelopment
planning; to amend the navigation law, in relation to liability exclu-
sions in connection with oil spill prevention, control, and compen-
sation, in relation to the disposition of certain monies of the New
York environmental protection and spill compensation fund, in relation
to providing for an audit thereof, and in relation to settlements; to
amend the public authorities law, in relation to hazardous waste and
inactive hazardous waste disposal sites for purposes of the New York
state environmental facilities corporation; to amend the public health
law, in relation to inactive hazardous waste disposal sites; to amend
the real property law, in relation to recording certain instruments;
to amend the real property tax law, in relation to exemption from
taxation, in certain cases; to amend the state finance law, in
relation to the hazardous waste remedial fund and the remedial program
transfer fund; to amend chapter 83 of the laws of 1995 amending the
state finance law and other laws relating to bonds, notes and reven-
ues, in relation to making certain provisions thereof permanent; to
repeal section 27-1316 of the environmental conservation law relating
to a hazardous substance waste disposal site study; and to repeal
section 1389-e of the public health law relating to a hazardous
substance waste disposal site study (Part AA)
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 2003-2004
3 state fiscal year. Each component is wholly contained within a Part
4 identified as Parts A through AA. The effective date for each particular
5 provision contained within such Part is set forth in the last section of
6 such Part. Any provision in any section contained within a Part, includ-
7 ing the effective date of the Part, which makes reference to a section
8 "of this act", when used in connection with that particular component,
9 shall be deemed to mean and refer to the corresponding section of the
10 Part in which it is found. Section three of this act sets forth the
11 general effective date of this act.
12 PART A
13 Section 1. The sum of two hundred eighty-one million four hundred
14 eighty-eight thousand dollars ($281,488,000), or so much thereof as
15 shall be necessary, and in addition to amounts previously appropriated
16 by law, is hereby made available, in accordance with subdivision 1 of
17 section 380 of the public authorities law as amended, according to the
18 following schedule. Payments pursuant to subdivision (a) of this
S. 1409 4 A. 2109
1 section shall be made available as moneys become available for such
2 payments. Payments pursuant to subdivisions (b) and (c) of this section
3 shall be made available on the fifteenth day of June, September, Decem-
4 ber and March or as soon thereafter as moneys become available for such
5 payments. No moneys of the state in the state treasury or any of its
6 funds shall be available for payments pursuant to this section:
7 SCHEDULE
8 (a) Thirty-nine million seven hundred thousand dollars ($39,700,000)
9 to municipalities for repayment of eligible costs of federal aid munici-
10 pal street and highway projects pursuant to section 15 of chapter 329 of
11 the laws of 1991, as added by section 9 of chapter 330 of the laws of
12 1991, as amended. The department of transportation shall provide such
13 information to the municipalities as may be necessary to maintain the
14 federal tax exempt status of any bonds, notes, or other obligations
15 issued by such municipalities to provide for the non-federal share of
16 the cost of projects pursuant to chapter 330 of the laws of 1991 or
17 section 80-b of the highway law.
18 (b) Two hundred seventeen million nine hundred thousand dollars
19 ($217,900,000) to counties, cities, towns and villages for reimbursement
20 of eligible costs of local highway and bridge projects pursuant to
21 sections 16 and 16-a of chapter 329 of the laws of 1991, as added by
22 section 9 of chapter 330 of the laws of 1991, as amended. For the
23 purposes of computing allocations to municipalities, the amount distrib-
24 uted pursuant to section 16 of chapter 329 of the laws of 1991 shall be
25 deemed to be $114,188,000. The amount distributed pursuant to section
26 16-a of chapter 329 of the laws of 1991 shall be deemed to be
27 $103,712,000. Notwithstanding the provisions of any general or special
28 law, the amounts deemed distributed in accordance with section 16 of
29 chapter 329 of the laws of 1991 shall be adjusted so that such amounts
30 will not be less than 78.750 percent of the "funding level" as defined
31 in subdivision 5 of section 10-c of the highway law for each such muni-
32 cipality. In order to achieve the objectives of section 16 of chapter
33 329 of the laws of 1991, to the extent necessary, the amounts in excess
34 of 78.750 percent of the funding level to be deemed distributed to each
35 municipality under this subdivision shall be reduced in equal propor-
36 tion.
37 (c) Twenty-three million eight hundred eighty-eight thousand dollars
38 ($23,888,000) to municipalities for reimbursement of eligible costs of
39 local highway and bridge projects pursuant to sections 16 and 16-a of
40 chapter 329 of the laws of 1991, as added by section 9 of chapter 330 of
41 the laws of 1991, as amended. For the purposes of computing allocations
42 to municipalities, the amount distributed pursuant to section 16 of
43 chapter 329 of the laws of 1991 shall be deemed to be $30,812,000. The
44 amount distributed pursuant to section 16-a of chapter 329 of the laws
45 of 1991 shall be deemed to be $27,985,000. Notwithstanding the
46 provisions of any general or special law, the amounts deemed distributed
47 in accordance with section 16 of chapter 329 of the laws of 1991 shall
48 be adjusted so that such amounts will not be less than 21.250 percent of
49 the "funding level" as defined in subdivision 5 of section 10-c of the
50 highway law for each such municipality. In order to achieve the objec-
51 tives of section 16 of chapter 329 of the laws of 1991, to the extent
52 necessary, the amounts in excess of 21.250 percent of the funding level
53 to be deemed distributed to each municipality under this paragraph shall
54 be reduced in equal proportion. Finally, amounts deemed distributed
55 under this paragraph shall not be paid to counties or the city of New
56 York. To the extent that the total of remaining payment allocations
S. 1409 5 A. 2109
1 calculated herein varies from $23,888,000, the payment amounts to each
2 locality shall be adjusted by a uniform percentage so that the total
3 payments equal $23,888,000.
4 § 2. Subdivision (b) of section 11 of chapter 329 of the laws of 1991,
5 amending the state finance law and other laws relating to the establish-
6 ment of the dedicated highway and bridge trust fund, as amended by
7 section 2 of part C of chapter 84 of the laws of 2002, is amended to
8 read as follows:
9 (b) Any service contract or contracts for projects authorized pursuant
10 to sections 10-c, 10-f, 10-g and 80-b of the highway law and section
11 14-k of the transportation law, and entered into pursuant to subdivision
12 (a) of this section, shall provide for state commitments to provide
13 annually to the thruway authority a sum or sums, upon such terms and
14 conditions as shall be deemed appropriate by the director of the budget,
15 to fund, or fund the debt service requirements of any bonds or any obli-
16 gations of the thruway authority issued to fund such projects having a
17 cost not in excess of [$3,811.44] $3,835.33 million cumulatively by the
18 end of fiscal year 2004-05.
19 § 3. Section 3 of part K of chapter 61 of the laws of 2000, amending
20 the public authorities law and chapter 329 of the laws of 1991 amending
21 the state finance law and other laws relating to the establishment of
22 the dedicated highway and bridge trust fund, as amended by section 3 of
23 part C of chapter 84 of the laws of 2002, is amended to read as follows:
24 § 3. The sum of two hundred fifty-seven million six hundred thousand
25 dollars ($257,600,000), or so much thereof as shall be necessary, and in
26 addition to amounts previously appropriated by law, is hereby made
27 available, in accordance with subdivision 1 of section 380 of the public
28 authorities law as amended, according to the following schedule.
29 Payments pursuant to subdivision (a) of this section shall be made
30 available as moneys become available for such payments. Payments pursu-
31 ant to subdivision (b) of this section shall be made on the fifteenth
32 day of June, September, December and March or as soon thereafter as
33 moneys become available for such payments. No moneys of the state in the
34 state treasury or any of its funds shall be available for payments
35 pursuant to this section:
36 SCHEDULE
37 (a) Thirty-nine million seven hundred thousand dollars ($39,700,000)
38 to municipalities for repayment of eligible costs of federal aid munici-
39 pal street and highway projects pursuant to section 15 of chapter 329 of
40 the laws of 1991, as added by section 9 of chapter 330 of the laws of
41 1991, as amended. The department of transportation shall provide such
42 information to the municipalities as may be necessary to maintain the
43 federal tax exempt status of any bonds, notes, or other obligations
44 issued by such municipalities to provide for the non-federal share of
45 the cost of projects pursuant to chapter 330 of the laws of 1991 or
46 section 80-b of the highway law.
47 The program authorized pursuant to section 15 of chapter 329 of the
48 laws of 1991, as added by section 9 of chapter 330 of the laws of 1991,
49 as amended, shall additionally make payments for reimbursement according
50 to the following schedule:
51 State Fiscal Year Amount
52 2001-02 $39,700,000
53 2002-03 $39,700,000
54 2003-04 $39,700,000
55 2004-05 $39,700,000
S. 1409 6 A. 2109
1 (b) Two hundred seventeen million nine hundred thousand dollars
2 ($217,900,000) to counties, cities, towns and villages for reimbursement
3 of eligible costs of local highway and bridge projects pursuant to
4 sections 16 and 16-a of chapter 329 of the laws of 1991, as added by
5 section 9 of chapter 330 of the laws of 1991, as amended. For the
6 purposes of computing allocations to municipalities, the amount distrib-
7 uted pursuant to section 16 of chapter 329 of the laws of 1991 shall be
8 deemed to be $114,188,000. The amount distributed pursuant to section
9 16-a of chapter 329 of the laws of 1991 shall be deemed to be
10 $103,712,000. Notwithstanding the provisions of any general or special
11 law, the amounts deemed distributed in accordance with section 16 of
12 chapter 329 of the laws of 1991 shall be adjusted so that such amounts
13 will not be less than 78.750 percent of the "funding level" as defined
14 in subdivision 5 of section 10-c of the highway law for each such muni-
15 cipality. In order to achieve the objectives of section 16 of chapter
16 329 of the laws of 1991, to the extent necessary, the amounts in excess
17 of 78.750 percent of the funding level to be deemed distributed to each
18 municipality under this paragraph shall be reduced in equal proportion.
19 The program authorized pursuant to sections 16 and 16-a of chapter 329
20 of the laws of 1991, as added by section 9 of chapter 330 of the laws of
21 1991, as amended, shall additionally make payments for reimbursement
22 according to the following schedule:
23 State Fiscal Year Amount
24 2001-02 $217,900,000
25 2002-03 $241,788,000
26 2003-04 [$217,900,000] $241,788,000
27 2004-05 $217,900,000
28 § 4. This act shall take effect April 1, 2003; provided, however, if
29 this act shall become a law after such date it shall take effect imme-
30 diately and shall be deemed to have been in full force and effect on and
31 after April 1, 2003.
32 PART B
33 Section 1. Section 5 of chapter 3 of the laws of 2002 amending the
34 vehicle and traffic law relating to reducing the blood alcohol level
35 threshold for determination of intoxication is amended to read as
36 follows:
37 § 5. This act shall take effect [on the first day of November next
38 succeeding the date on which it shall have become a law] July 1, 2003,
39 provided, however, that the amendments to clauses a and b of subpara-
40 graph 7 of paragraph (e) of subdivision 2 of section 1193 of the vehicle
41 and traffic law made by section three of this act shall not affect the
42 repeal of such subparagraph and shall be deemed repealed therewith.
43 § 2. This act shall take effect immediately.
44 PART C
45 Section 1. Paragraph (a) of subdivision 15 of section 385 of the vehi-
46 cle and traffic law, as amended by chapter 659 of the laws of 1995, is
47 amended to read as follows:
48 (a) The commissioner of transportation is hereby authorized to contin-
49 ue to grant permits, and to charge fees therefor, for the operation or
50 movement of a vehicle or combination of vehicles having weights or
51 dimensions which exceed the limitations provided for in this section
52 upon any highway under his or her jurisdiction except in any city not
S. 1409 7 A. 2109
1 wholly included within one county. Such permits shall be issued in
2 accordance with the terms and conditions contained in rules and regu-
3 lations governing special hauling permits which have been or shall be
4 promulgated by the commissioner of transportation and which may include,
5 but not be limited to, a requirement that a vehicle or combination of
6 vehicles being issued a permit shall be accompanied by one or more
7 escort vehicles which is being operated by an individual having a valid
8 escort certificate issued by the commissioner. The commissioner of
9 transportation is authorized to promulgate rules and regulations govern-
10 ing the operation, use and equipment of escort vehicles and the duties
11 and responsibilities of the operator of an escort vehicle. Any finding
12 by the commissioner of transportation that an individual has violated
13 such rules and regulations shall be grounds for the cancellation of an
14 individual's escort certificate and a penalty not to exceed five hundred
15 dollars per occurrence for the first violation and not to exceed one
16 thousand dollars per occurrence for each subsequent violation. Prior to
17 issuing such a finding, the commissioner of transportation shall afford
18 an individual the right to a hearing pursuant to section one hundred
19 forty-five of the transportation law. Such rules and regulations shall
20 take into consideration, but shall not be limited to, the safety of the
21 traveling public and the protection of the highways and the environment.
22 Such rules and regulations shall also contain a schedule of fees to be
23 charged for the issuance of such permits which fees shall cover, but
24 shall not be limited to, the costs to the department of transportation
25 for the administration of the permit program, and shall permit the
26 commissioner of transportation to levy a surcharge of up to twenty
27 dollars for the issuance and distribution of special hauling permits at
28 regional offices of the department of transportation. The annual vehicle
29 fee for a permit issued pursuant to subparagraphs (i), (ii), (ii-a) and
30 (iii) of paragraph (f) of this subdivision shall be three hundred sixty
31 dollars for vehicles with less than five axles [and], seven hundred
32 fifty dollars for vehicles with five or [more] six axles and nine
33 hundred dollars for vehicles with seven or more axles. The annual vehi-
34 cle fee for a permit issued pursuant to subparagraphs (iv), (v), and
35 (vi) of paragraph (f) of this subdivision shall be four hundred eighty
36 dollars for vehicles with less than five axles and one thousand dollars
37 for vehicles with five or more axles. Additionally, the commissioner
38 shall establish a fee schedule for the permitting of extra non-power
39 combination units that may not exceed twenty-five dollars per vehicle
40 and may offer discounts for multi-trailer registrations. Such fees shall
41 not be charged to municipalities in this state. If the permit has rout-
42 ing requirements, such rules and regulations shall provide that if the
43 routing anticipates the use of highways not under the jurisdiction of
44 the commissioner of transportation, then he or she shall immediately
45 notify the municipality or municipalities, having jurisdiction over such
46 highway that an application for a permit has been received and request
47 comment thereon. Said municipality or municipalities shall not have
48 less than fifteen days to comment. Such rules and regulations shall also
49 contain any other requirements deemed necessary by the commissioner of
50 transportation.
51 § 2. Paragraph (f) of subdivision 15 of section 385 of the vehicle and
52 traffic law, as amended by chapter 656 of the laws of 1993 and the open-
53 ing paragraph as amended by chapter 83 of the laws of 2000, is amended
54 to read as follows:
55 (f) The department of transportation, or other issuing authority, may
56 issue an annual permit for a vehicle designed and constructed to carry
S. 1409 8 A. 2109
1 loads that are not of one piece or item, which is registered in this
2 state. Motor carriers having apportioned vehicles registered under the
3 international registration plan must either have a currently valid
4 permit at the time this provision becomes effective or shall have desig-
5 nated New York as its base state or one of the eligible jurisdictions of
6 operation under the international registration plan in order to be
7 eligible to receive a permit issued pursuant to subparagraph (i) [or],
8 (ii) or (ii-a) of this paragraph.
9 No vehicle or combination of vehicles issued a permit pursuant to this
10 paragraph shall cross a bridge designated as an R-posted bridge by the
11 commissioner of transportation or any other permit issuing authority
12 absent a determination by such commissioner or permit issuing authority
13 that the permit applicant has demonstrated special circumstances
14 warranting the crossing of such bridge or bridges and that such bridge
15 or bridges may be crossed safely, provided, however, that in no event
16 shall a vehicle or combination of vehicles issued a permit under this
17 paragraph be permitted to cross a bridge designated as an R-posted
18 bridge if such vehicle or combination of vehicles has a maximum gross
19 weight exceeding one hundred two thousand pounds.
20 No vehicle having a model year of two thousand five or newer shall be
21 issued a permit pursuant to this paragraph unless each axle of such
22 vehicle or combination of vehicles, other than steerable or trackable
23 axles, is equipped with two tires on each side of the axle, any air
24 pressure controls for lift axles are located outside the cab of the
25 vehicle and are beyond the reach of occupants of the cab while the vehi-
26 cle is in motion, the weight on any grouping of two or more axles is
27 distributed such that no axle in the grouping carries less than eighty
28 percent of any other axle in the grouping and any liftable axle is
29 steerable or trackable; and, further provided, after December thirty-
30 first, two thousand thirteen, no permit shall be issued pursuant to this
31 paragraph to a vehicle of any model year that does not meet the require-
32 ments of this provision.
33 A divisible load permit may only be transferred to a replacement vehi-
34 cle by the same registrant or transferred with the permitted vehicle as
35 part of the sale or transfer of the permit holder's business; or, if the
36 divisible load permit is issued pursuant to subparagraph (iv), (v) or
37 (vi) of this paragraph and has been effective for the five years preced-
38 ing a transfer of such permit, the permit may be transferred with the
39 permitted vehicle in the sale of the permitted vehicle to the holder of
40 a permit issued pursuant to subparagraph (iv), (v) or (vi) of this para-
41 graph.
42 If a permit holder operates a vehicle or combination of vehicles in
43 violation of any posted weight restriction, the permit issued to such
44 vehicle or combination of vehicles shall be deemed void as of the next
45 day and shall not be reissued for a period of twelve calendar months.
46 Until June thirtieth, nineteen hundred ninety-four, no more than
47 sixteen thousand power units shall be issued annual permits by the
48 department for any twelve-month period in accordance with this para-
49 graph. After June thirtieth, nineteen hundred ninety-four, no more than
50 sixteen thousand five hundred power units shall be issued annual permits
51 by the department for any twelve-month period. After December thirty-
52 first, nineteen hundred ninety-five, no more than seventeen thousand
53 power units shall be issued annual permits by the department for any
54 twelve-month period. After December thirty-first, two thousand two, no
55 more than twenty-one thousand power units shall be issued annual permits
56 by the department for any twelve-month period. After December thirty-
S. 1409 9 A. 2109
1 first, two thousand four, no more than twenty-two thousand power units
2 shall be issued annual permits by the department for any twelve-month
3 period. After December thirty-first, two thousand five, no more than
4 twenty-three thousand power units shall be issued annual permits by the
5 department for any twelve-month period. After December thirty-first, two
6 thousand six, no more than twenty-four thousand power units shall be
7 issued annual permits by the department for any twelve-month period.
8 After December thirty-first, two thousand seven, no more than twenty-
9 five thousand power units shall be issued annual permits by the depart-
10 ment for any twelve-month period.
11 Whenever permit application requests exceed permit availability, the
12 department shall renew annual permits that have been expired for less
13 than four years which meet program requirements, and then shall issue
14 permit applicants having less than three divisible load permits such
15 additional permits as the applicant may request, providing that the
16 total of existing and new permits does not exceed three. Remaining
17 permits shall be allocated by lottery in accordance with procedures
18 established by the commissioner in rules and regulations.
19 The department of transportation may issue a seasonal agricultural
20 permit in accordance with subparagraphs (i), (ii) and (iii) of this
21 paragraph that will be valid for four consecutive months with a fee
22 equal to one-half the annual permit fees established under this subdivi-
23 sion.
24 For a vehicle issued a permit in accordance with subparagraphs (iii),
25 (iv), (v) and (vi) of this paragraph, such a vehicle must have been
26 registered in this state prior to January first, nineteen hundred eight-
27 y-six or be a vehicle or combination of vehicles which replace such type
28 of vehicle which was registered in this state prior to such date
29 provided that the manufacturer's recommended maximum gross weight of the
30 replacement vehicle or combination of vehicles does not exceed the
31 weight for which a permit may be issued and the maximum load to be
32 carried on the replacement vehicle or combination of vehicles does not
33 exceed the maximum load which could have been carried on the vehicle
34 being replaced or the registered weight of such vehicle, whichever is
35 lower, in accordance with the following subparagraphs:
36 (i) A permit may be issued for a vehicle having at least three axles
37 and a wheelbase not less than sixteen feet and for a vehicle with a
38 trailer not exceeding forty-eight feet. The maximum gross weight of such
39 a vehicle shall not exceed forty-two thousand five hundred pounds plus
40 one thousand two hundred fifty pounds for each foot and major fraction
41 of a foot of the distance from the center of the foremost axle to the
42 center of the rearmost axle, or one hundred two thousand pounds, which-
43 ever is more restrictive provided, however, that any four axle group
44 weight shall not exceed sixty-two thousand pounds, any tridem axle group
45 weight shall not exceed fifty-seven thousand pounds, any tandem axle
46 weight does not exceed forty-seven thousand pounds and any single axle
47 weight shall not exceed twenty-five thousand pounds.
48 Any additional special authorizations contained in a currently valid
49 annual permit shall cease upon the expiration of such current annual
50 permit.
51 (ii) A permit may be issued subject to bridge restrictions for a vehi-
52 cle or a combination of vehicles having at least six axles and a wheel
53 base of at least thirty-six and one-half feet. The maximum gross weight
54 of such vehicle or combination of vehicles shall not exceed one hundred
55 seven thousand pounds and any tridem axle group weight shall not exceed
S. 1409 10 A. 2109
1 fifty-eight thousand pounds and any tandem axle group weight shall not
2 exceed forty-eight thousand pounds.
3 (ii-a) A permit may be issued subject to bridge restrictions for a
4 combination of vehicles having at least seven axles and a wheelbase of
5 at least forty-three feet. The maximum gross weight of such combination
6 of vehicles shall not exceed one hundred seventeen thousand pounds, any
7 four axle group weight shall not exceed sixty-three thousand pounds, any
8 tridem axle group weight shall not exceed fifty-eight thousand pounds,
9 any tandem axle group weight shall not exceed forty-eight thousand
10 pounds, and any single axle weight shall not exceed twenty-five thousand
11 pounds.
12 Each axle of such combination of vehicles, other than steerable or
13 trackable axles, shall be equipped with two tires on each side of the
14 axle, any air pressure controls for lift axles shall be located outside
15 the cab of the combination of vehicles and shall be beyond the reach of
16 occupants of the cab while the combination of vehicles is in motion, the
17 weight on any grouping of two or more axles shall be distributed such
18 that no axle in the grouping carries less than eighty percent of any
19 other axle in the grouping, and any liftable axle of such combination of
20 vehicles shall be steerable or trackable.
21 (iii) A permit may be issued for a vehicle having two axles and a
22 wheelbase not less than ten feet, with the maximum gross weight not in
23 excess of one hundred twenty-five percent of the total weight limitation
24 as set forth in subdivision ten of this section. Furthermore, until
25 December thirty-first, nineteen hundred ninety-four, any single rear
26 axle weight shall not exceed twenty-eight thousand pounds. After Decem-
27 ber thirty-first, nineteen hundred ninety-four, any axle weight shall
28 not exceed twenty-seven thousand pounds.
29 (iv) Within a city not wholly included within one county and the coun-
30 ties of Westchester, Rockland, Nassau, Suffolk, Putnam, Orange and
31 Dutchess, a permit may be issued for a vehicle having at least three
32 axles and a wheelbase not exceeding forty-four feet nor less than seven-
33 teen feet or for a vehicle with a trailer not exceeding forty feet.
34 Until December thirty-first, nineteen hundred ninety-four, a permit
35 may only be issued for such a vehicle having a maximum gross weight not
36 exceeding eighty-two thousand pounds and any tandem axle group weight
37 shall not exceed sixty-two thousand pounds.
38 After January first, nineteen hundred ninety-five, the operation of
39 such a vehicle shall be further limited and a permit may only be issued
40 for such a vehicle having a maximum gross weight not exceeding seventy-
41 nine thousand pounds and any tandem axle group weight shall not exceed
42 fifty-nine thousand pounds, and any tridem shall not exceed sixty-four
43 thousand pounds.
44 A permit may be issued only until December thirty-first, nineteen
45 hundred ninety-four for a vehicle having at least three axles and a
46 wheelbase between fifteen and seventeen feet. The maximum gross weight
47 of such a vehicle shall not exceed seventy-three thousand two hundred
48 eighty pounds and any tandem axle group weight shall not exceed fifty-
49 four thousand pounds.
50 No vehicle having a model year of two thousand five or newer shall be
51 issued a permit pursuant to this subparagraph unless it is equipped with
52 at least four axles, and further provided, after December thirty-first,
53 two thousand thirteen, no permit shall be issued pursuant to this
54 subparagraph to a vehicle of any model year unless the vehicle is
55 equipped with at least four axles.
S. 1409 11 A. 2109
1 (v) Within a city not wholly included within one county and the coun-
2 ties of Westchester, Rockland, Nassau, Suffolk, Putnam, Orange or Dutch-
3 ess, a permit may be issued only until December thirty-first, nineteen
4 hundred ninety-nine for a vehicle or combination of vehicles that has
5 been permitted within the past four years having five axles and a wheel-
6 base of at least thirty-six and one-half feet. The maximum gross weight
7 of such a vehicle or combination of vehicles shall not exceed one
8 hundred five thousand pounds and any tandem axle group weight shall not
9 exceed fifty-one thousand pounds.
10 Within a city not wholly included within one county and the counties
11 of Westchester, Rockland, Nassau, Suffolk, Putnam, Orange and Dutchess,
12 a permit may be issued for a vehicle or combination of vehicles having
13 at least five axles and a wheelbase of at least thirty feet. The maximum
14 gross weight of such vehicle or combination of vehicles shall not exceed
15 ninety-three thousand pounds and any tridem axle group weight shall not
16 exceed fifty-seven thousand pounds and any tandem axle group weight
17 shall not exceed forty-five thousand pounds.
18 (vi) Within a city not wholly included within one county and the coun-
19 ties of Westchester, Rockland, Nassau, Suffolk, Putnam, Orange and
20 Dutchess, a permit may be issued for a vehicle or combination of vehi-
21 cles having at least five axles or more and a wheelbase of at least
22 thirty-six and one-half feet, provided such permit contains routing
23 restrictions.
24 Until December thirty-first, nineteen hundred ninety-four, the maximum
25 gross weight of a vehicle or combination of vehicles permitted under
26 this subparagraph shall not exceed one hundred twenty thousand pounds
27 and any tandem or tridem axle group weight shall not exceed sixty-nine
28 thousand pounds, provided, however, that any replacement vehicle or
29 combination of vehicles permitted after the effective date of this
30 subparagraph shall have at least six axles, any tandem axle group shall
31 not exceed fifty thousand pounds and any tridem axle group shall not
32 exceed sixty-nine thousand pounds.
33 After December thirty-first, nineteen hundred ninety-four, the tridem
34 axle group weight of any vehicle or combination of vehicles issued a
35 permit under this subparagraph shall not exceed sixty-seven thousand
36 pounds, any tandem axle group weight shall not exceed fifty thousand
37 pounds and any single axle weight shall not exceed twenty-five thousand
38 seven hundred fifty pounds.
39 After December thirty-first, nineteen hundred ninety-nine, all vehi-
40 cles issued a permit under this subparagraph must have at least six
41 axles.
42 After December thirty-first, two thousand thirteen, all combinations
43 of vehicles issued a permit under this subparagraph must have at least
44 seven axles and a wheelbase of at least forty-three feet.
45 After December thirty-first, two thousand five, no permits shall be
46 issued under this subparagraph for a vehicle or combination of vehicles
47 having less than seven axles or having a wheelbase of less than forty-
48 three feet, provided, however, that permits may be issued for vehicles
49 or combinations of vehicles where the permit applicant demonstrates that
50 the applicant acquired the vehicle or combination of vehicles prior to
51 December thirty-first, two thousand five, and that if the vehicle or
52 combination of vehicles was acquired by the applicant after the effec-
53 tive date of this provision, such vehicle or combination of vehicles is
54 less than fifteen years old. In instances where the application is for a
55 combination of vehicles, the applicant shall demonstrate that the power
56 unit of such combination satisfies the conditions of this subparagraph.
S. 1409 12 A. 2109
1 In no event shall a permit be issued under this subparagraph for a vehi-
2 cle or combination of vehicles having less than seven axles or having a
3 wheelbase of less than forty-three feet after December thirty-first, two
4 thousand thirteen.
5 Except as otherwise provided by this subparagraph for the period
6 ending December thirty-first, two thousand thirteen, after December
7 thirty-first, two thousand two, any combination of vehicles issued a
8 permit under this subparagraph shall not exceed one hundred twenty thou-
9 sand pounds, shall have at least seven axles, shall have a wheelbase of
10 at least forty-three feet, and single axle weight shall not exceed twen-
11 ty-five thousand seven hundred fifty pounds, any tandem axle group
12 weight shall not exceed forty-eight thousand pounds, any tridem axle
13 group weight shall not exceed sixty-three thousand pounds and any four
14 axle group shall not exceed sixty-five thousand pounds.
15 From the date of enactment of this paragraph, permit applications
16 under subparagraphs (i), (ii), (ii-a), (iii), (iv), (v) and (vi) [here-
17 of] of this paragraph for vehicles registered in this state may be
18 honored by the commissioner of transportation or other appropriate
19 authority. The commissioner of transportation and other appropriate
20 authorities may confer and develop a system through rules and regu-
21 lations to assure compliance herewith.
22 § 3. Subdivision 15 of section 385 of the vehicle and traffic law is
23 amended by adding two new paragraphs (j) and (k) to read as follows:
24 (j) The commissioner of transportation is authorized to conduct hear-
25 ings with regard to the issuance or revocation of any permit issued by
26 the commissioner of transportation pursuant to this section and relating
27 to the violation of any condition applicable to such permit as provided
28 in subdivision three of section one hundred forty-five of the transpor-
29 tation law. If a permit issued by the department of transportation is
30 seized and the holder of the permit makes a written request to the
31 department of transportation for a hearing, the commissioner of trans-
32 portation shall schedule a hearing within twenty days of the receipt of
33 such request.
34 (k) Any permit issued pursuant to this section that is seized shall be
35 forwarded to the issuing authority as soon as practicable.
36 § 4. Subdivision 19 of section 385 of the vehicle and traffic law is
37 REPEALED and a new subdivision 19 is added to read as follows:
38 19. (a) (i) A violation of the provisions of subdivision eight, nine,
39 or ten of this section by any vehicle or combination of vehicles whose
40 weight exceeds the weight limitations as set forth in this section, or a
41 violation of such rules and regulations, or a violation of the
42 provisions of the rules or regulations of the city department of trans-
43 portation in a city not wholly included within one county setting forth
44 the maximum allowable gross weight, axle weight, or axle grouping weight
45 for the operation of a vehicle in such city without a permit for such
46 vehicle, by any vehicle or combination of vehicles whose weight exceeds
47 the weight limitations as set forth in this section or such rules and
48 regulations, or a violation of the weight limitations specified by
49 permit issued pursuant to subdivision fifteen of this section shall be
50 punishable by fines levied on the registered owner of the vehicle or
51 vehicles, whether at the time of the violation the vehicle was in the
52 charge of the registered owner, or the owner's agent, or lessee, in
53 accordance with the following schedule:
54 Percent of excess weight
Amount of fine
55 (percentage) (dollars)
S. 1409 13 A. 2109
1 greater than less than or equal to
2 0 2.0 150
3 2.0 4.0 300
4 4.0 6.0 450
5 6.0 7.0 525
6 7.0 8.0 600
7 8.0 10.0 750
8 10.0 12.0 950
9 12.0 14.0 1,150
10 14.0 16.0 1,350
11 16.0 18.0 1,550
12 18.0 20.0 1,750
13 20.0 22.0 1,950
14 22.0 24.0 2,150
15 24.0 26.0 2,350
16 26.0 28.0 2,550
17 28.0 30.0 2,750
18 30.0 32.0 2,950
19 32.0 34.0 3,150
20 34.0 36.0 3,350
21 36.0 38.0 3,550
22 38.0 40.0 3,750
23 40.0 3,750
24 or greater plus $125 for
25 each percent
26 over 40 percent
27 (NOTE: Where the total weight or axle or axle grouping weight is greater
28 than four percent including any applicable enforcement scale tolerance
29 in excess of the limits specified by a permit in a city not wholly
30 included in one county or seven percent including any applicable
31 enforcement scale tolerance in excess of the limits specified by a
32 permit in areas outside such a city, the permit shall be deemed voided
33 and then the amount of fine shall be determined in accordance with the
34 maximum weight which would have been in effect for the operation of such
35 vehicle if the permit to exceed such maximum weight had not been
36 issued.)
37 (ii) Notwithstanding subparagraph (i) of this paragraph and only for
38 violations by a vehicle having three or fewer axles and issued a permit
39 pursuant to subparagraph (iv) of paragraph (f) of subdivision fifteen of
40 this section or by a vehicle or combination of vehicles having six or
41 fewer axles and issued a permit pursuant to subparagraph (vi) of para-
42 graph (f) of subdivision fifteen of this section, a violation of the
43 provisions of subdivision ten of this section in a city not wholly
44 included within one county or of the provisions of the rules or regu-
45 lations of the city department of transportation of such city setting
46 forth the maximum allowable gross weight for the operation of such vehi-
47 cle or combination of vehicles in such city without a permit for such
48 vehicle or combination of vehicles, by such vehicle or combination of
49 vehicles whose weight exceeds the weight limitations (excluding enforce-
50 ment scale tolerance as certified by the state department of agriculture
51 and markets) as set forth in this section, or such rules and regu-
52 lations, or the weight limitations specified by permit issued pursuant
53 to subdivision fifteen of this section shall be punishable by fines
54 levied on the registered owner of the vehicle or vehicles, whether at
55 the time of the violation the vehicle was in the charge of the regis-
S. 1409 14 A. 2109
1 tered owner, or his or her agent, or lessee, in accordance with the
2 following schedule:
3 Excess total weight Amount of fine
4 (pounds) (dollars)
5 greater than less than or equal to
6 0 2,000 50
7 2,000 3,000 75
8 3,000 4,000 100
9 4,000 5,000 200
10 5,000 6,000 300
11 6,000 7,000 400
12 7,000 8,000 500
13 8,000 9,000 600
14 9,000 10,000 700
15 10,000 15,000 1,200
16 15,000 20,000 1,700
17 20,000 25,000 2,200
18 25,000 30,000 2,700
19 30,000 35,000 3,200
20 35,000 40,000 3,700
21 40,000 45,000 4,200
22 45,000 50,000 or greater 4,700
23 (NOTE: Where the total weight (excluding enforcement scale tolerance
24 as certified by the state department of agriculture and markets) is
25 greater than the limits specified by a permit, the permit shall be
26 deemed voided and then the amount of fine shall be determined in accord-
27 ance with the maximum weight which would have been in effect for the
28 operation of such vehicle if the permit to exceed such maximum weight
29 had not been issued.)
30 (iii) Notwithstanding subparagraph (i) of this paragraph and only for
31 violations by a vehicle having three or fewer axles and issued a permit
32 pursuant to subparagraph (iv) of paragraph (f) of subdivision fifteen of
33 this section or by a vehicle or combination of vehicles having six or
34 fewer axles and issued a permit pursuant to subparagraph (vi) of para-
35 graph (f) of subdivision fifteen of this section, a violation of the
36 provisions of subdivisions eight and nine of this section in a city not
37 wholly included within one county or of the provisions of the rules or
38 regulations of the city department of transportation of such city
39 setting forth the maximum allowable axle or tandem axle weight for the
40 operation of such vehicle or combination of vehicles in such city with-
41 out a permit for such vehicle or combination of vehicles, by such vehi-
42 cle or combination of vehicles whose weight exceeds the weight limita-
43 tions (excluding enforcement scale tolerance as certified by the state
44 department of agriculture and markets) as set forth in this section, or
45 such rules or regulations, or the weight limitations specified by permit
46 issued pursuant to subdivision fifteen of this section shall be punisha-
47 ble by fines levied on the registered owner of the vehicle or vehicles,
48 whether at the time of the violation the vehicle was in the charge of
49 the registered owner, or his or her agent, or lessee, in accordance with
50 the following schedule:
51 Percentage of excess Amount of fine
52 weight (percentage) (dollars)
53 greater than less than or equal to
S. 1409 15 A. 2109
1 0.0 5.0 100
2 5.0 10.0 200
3 10.0 15.0 350
4 15.0 20.0 600
5 20.0 25.0 1,000
6 25.0 30.0 1,600
7 30.0 35.0 2,450
8 35.0 40.0 3,600
9 40.0 45.0 5,100
10 45.0 7,000
11 (NOTE: Where the axle or axles weight (excluding enforcement scale
12 tolerance as certified by the state department of agriculture and
13 markets) is greater than the limits specified by a permit, the permit
14 shall be deemed voided and then the amount of fine shall be determined
15 in accordance with the maximum weight which would have been in effect
16 for the operation of such vehicle if the permit to exceed such maximum
17 weight had not been issued.)
18 (b) In addition to the fines imposed by paragraph (a) of this subdivi-
19 sion, the registration of the vehicle may be suspended for a period not
20 to exceed one year, whether at the time of the violation of this section
21 the vehicle was in charge of the owner or the owner's agent, or lessee.
22 The provisions of section five hundred ten of this chapter shall apply
23 to such suspension, except as otherwise provided herein.
24 (c) If the vehicle is the subject of a permit issued pursuant to para-
25 graph (f) of subdivision fifteen of this section and if the registered
26 owner of a vehicle fails to appear on the return date or subsequent
27 adjourned date of a summons, appearance ticket or notice of violation
28 issued pursuant to this subdivision or fails to pay a fine imposed
29 pursuant to this subdivision, the registration of the vehicle or the
30 privilege of operating the vehicle in this state shall be suspended for
31 a period not to exceed one year. The suspension shall remain in effect
32 until the registered owner's appearance or payment of the fine. The
33 commissioner or the commissioner's agent may deny a registration appli-
34 cation of any other person for the same vehicle where the commissioner
35 has reasonable grounds to believe that such registration will have the
36 effect of defeating the purpose of this paragraph.
37 (d) Except for violations to which the penalties set forth in subpara-
38 graph (ii) or (iii) of paragraph (a) of this subdivision apply, in
39 connection with the weighing of a vehicle or combination of vehicles, if
40 it is found that there is a violation of subdivision ten of this section
41 and also of subdivision eight or nine of this section, or both subdivi-
42 sions eight and nine of this section, there shall be a single fine
43 imposed and the maximum amount of such fine shall not exceed the highest
44 fine that could be imposed under this subdivision.
45 § 5. This act shall take effect April 1, 2003; provided, however, if
46 this act shall become a law after such date it shall take effect imme-
47 diately and shall be deemed to have been in full force and effect on and
48 after April 1, 2003; provided, further, that sections three and four of
49 this act shall take effect on the ninetieth day after this act shall
50 have become a law.
51 PART D
52 Section 1. Section 8 of chapter 533 of the laws of 1993, amending the
53 vehicle and traffic law and the correction law relating to the suspen-
S. 1409 16 A. 2109
1 sion and revocation of driver's licenses upon conviction of certain
2 drug-related offenses, is REPEALED.
3 § 2. Section 9 of chapter 533 of the laws of 1993, amending the vehi-
4 cle and traffic law and the correction law relating to the suspension
5 and revocation of driver's licenses upon conviction of certain drug-re-
6 lated offenses, as amended by section 1 of part A of chapter 84 of the
7 laws of 2002, is amended to read as follows:
8 § 9. This act shall take effect September 30, 1993 and shall apply to
9 convictions based on offenses which occurred on or after such date [and
10 shall remain in full force and effect until October 1, 2003 when upon
11 such date the provisions of this act shall be deemed repealed and the
12 provisions of law amended by this act shall revert to and be read as if
13 the provisions of this act had not been enacted].
14 § 3. Section 28 of part E of chapter 58 of the laws of 1998, relating
15 to a report of the division of criminal justice services, is REPEALED.
16 § 4. This act shall take effect April 1, 2003; provided, however, that
17 if this act shall have become a law after such date, it shall take
18 effect immediately and shall be deemed to have been in full force and
19 effect on and after April 1, 2003.
20 PART E
21 Section 1. Subparagraph 2 of paragraph g of the ninth undesignated
22 paragraph of section 1005 of the public authorities law, as amended by
23 chapter 226 of the laws of 2002, is amended to read as follows:
24 2. The authority, as deemed feasible and advisable by the trustees, is
25 authorized to make an additional annual voluntary contribution into the
26 state treasury to the credit of the general fund. The authority shall
27 make such contribution no later than ninety days after the end of the
28 calendar year in which a credit under subdivision nine of section one
29 hundred eighty-six-a of the tax law is available for the additional
30 three hundred megawatts of power under the fourth phase of the program
31 provided under chapter sixty-three of the laws of two thousand and under
32 the fifth phase for the additional one hundred eighty-three megawatts
33 provided under [a] chapter two hundred twenty-six of the laws of two
34 thousand two. Such annual contribution shall be equal to fifty percent
35 of the total amount of such credits available each year to all local
36 distributors of electricity. In addition, such authorization for
37 contribution in state fiscal year two thousand two--two thousand three
38 shall be equal to the total amount of credit available in two thousand
39 one and two thousand two; and such authorization for contribution in
40 state fiscal year two thousand three--two thousand four shall be equal
41 to the total amount of credit available in two thousand three; under
42 subdivision nine of section one hundred eighty-six-a of the tax law
43 under the fourth phase of the program for the additional three hundred
44 megawatts provided under chapter sixty-three of the laws of two thousand
45 and under the fifth phase for the additional one hundred eighty-three
46 megawatts provided under [a] chapter two hundred twenty-six of the laws
47 of two thousand two. The department of public service shall estimate
48 the payment due by the end of the calendar year in which the credit is
49 available. In no case shall the amount of the total annual contributions
50 for the years during which delivery and sale of phase four and phase
51 five power takes place exceed the aggregate total of one hundred twen-
52 ty-five million dollars. Such aggregate total shall be in addition to
53 any contribution made pursuant to subparagraph one of this paragraph.
S. 1409 17 A. 2109
1 § 2. This act shall take effect April 1, 2003; provided, however, that
2 the amendments to the ninth undesignated paragraph of section 1005 of
3 the public authorities law made by section one of this act shall not
4 affect the expiration of such paragraph and shall be deemed to expire
5 therewith.
6 PART F
7 Section 1. Subdivision 1 of section 1977-a of the public authorities
8 law is amended by adding a new paragraph (c) to read as follows:
9 (c) Additional authorizations. (1) For the purpose of financing capi-
10 tal costs in connection with development of the project area, the
11 authority may, in addition to the authorizations contained elsewhere in
12 this title, borrow money by issuing bonds or notes in an aggregate prin-
13 cipal amount not exceeding one hundred fifty million dollars plus a
14 principal amount of bonds or notes issued (i) to fund any related debt
15 service reserve fund, (ii) to provide capitalized interest, and (iii) to
16 provide for fees and other charges and expenses, including any under-
17 writers' discounts, related to the issuance of such bonds or notes, all
18 as determined by the authority, excluding bonds and notes issued to
19 refund outstanding bonds and notes issued pursuant to this section.
20 (2) In addition to the authorizations contained elsewhere in this
21 title, the authority may issue indebtedness for the purpose of refunding
22 outstanding indebtedness of the housing New York corporation which is
23 secured by revenues of the authority, and indebtedness for the purpose
24 of refunding such refunding indebtedness issued by the authority includ-
25 ing the funding of reserves and providing for fees and other charges and
26 expenses, including underwriters' discounts, related to the issuance of
27 such refunding bonds or notes, all as determined by the authority.
28 § 2. Section 1977-a of the public authorities law is amended by adding
29 a new subdivision 4 to read as follows:
30 4. The authority shall have the power to enter into interest rate
31 exchange agreements, which shall mean written contracts entered into in
32 connection with the issuance of authority debt or in connection with
33 such authority debt already outstanding with a counter party to provide
34 for an exchange of payments based upon fixed and/or variable interest
35 rates, and shall be for exchanges in currency of the United States of
36 America only. The authority shall have the power to enter into such
37 interest rate exchange agreements until December thirty-first, two thou-
38 sand three.
39 § 3. This act shall take effect immediately and shall apply to all
40 applicable agreements entered into on or after such date; provided,
41 however, that the provisions of section two of this act shall expire and
42 be deemed repealed on December 31, 2003; provided, further that the
43 expiration and repeal of such subdivision shall not affect any agreement
44 entered into prior to such expiration and repeal.
45 PART G
46 Section 1. The dormitory authority of the state of New York is author-
47 ized to enter into an agreement with Cornell University for the support
48 of operation of the parallel computing supercomputers at the theory
49 center for supercomputers in connection with the business of the dormi-
50 tory authority in an amount not to exceed $1,200,000 over amounts previ-
51 ously authorized.
S. 1409 18 A. 2109
1 § 2. This act shall take effect April 1, 2003; provided, however, if
2 this act shall become a law after such date it shall take effect imme-
3 diately and shall be deemed to have been in full force and effect on and
4 after April 1, 2003.
5 PART H
6 Section 1. Notwithstanding any other provision of law, the commission-
7 er of the state division of housing and community renewal shall termi-
8 nate all contracts with neighborhood and rural preservation companies
9 entered into pursuant to articles XVI and XVII of the private housing
10 finance law, effective at the end of the current contract periods but in
11 any event no later than June 30, 2003 and shall provide written notice
12 of such termination to all affected companies and, further, the commis-
13 sioner shall issue a notice of funding availability setting forth crite-
14 ria for selection of companies to be funded for the period July 1, 2003
15 through June 30, 2004 and for future funding. Subdivision 6 of section
16 903 and subdivision 6 of section 1003 of the private housing finance law
17 shall not apply to contracts terminated pursuant to this act.
18 § 2. This act shall take effect immediately and shall be deemed to be
19 in full force and effect on and after April 1, 2003.
20 PART I
21 Section 1. The racing, pari-mutuel wagering and breeding law is
22 amended by adding a new section 111 to read as follows:
23 § 111. Regulatory fees. 1. Payment of the regulatory fees imposed by
24 this chapter shall be made to the board by each entity required to make
25 such payments on the last business day of each month and shall cover the
26 fees due for the period from the sixteenth day of the preceding month
27 through the fifteenth day of the current month, provided however that
28 all such payments required to be made on March thirty-first shall
29 include all fees due and accruing through the last full week of racing
30 of the current year or as otherwise determined by the board and shall be
31 accompanied by a report under oath, showing such information as the
32 board may require. A penalty of five percent, and interest at the rate
33 of one percent per month from the date the report is required to be
34 filed to the date of the payment of the fee shall be payable in case any
35 fee imposed by this chapter is not paid when due. If the board deter-
36 mines that any regulatory fees received by it under this chapter were
37 paid in error, the board may cause the same to be refunded without
38 interest out of any monies collected thereunder, provided an application
39 therefor is filed with the board within one year from the time the erro-
40 neous payment is made.
41 2. The board or its duly authorized representatives shall have the
42 power to examine or cause to be examined the books and records of each
43 entity required to pay the regulatory fee imposed by this chapter for
44 the purpose of examining and checking the same and ascertaining whether
45 or not the proper amount or amounts due are being paid. If in the opin-
46 ion of the board, after such examination, any such report is incorrect,
47 the board is authorized to issue an assessment fixing the correct amount
48 of such fee. Such assessments may be issued within three years from the
49 filing of any report. Any such assessment shall be final and conclusive
50 unless an application for a hearing is filed by the reporting entity
51 within thirty days of the assessment. The action of the board in
52 making such final assessment shall be reviewable in the supreme court in
S. 1409 19 A. 2109
1 the manner provided by and subject to the provisions of article seven-
2 ty-eight of the civil practice law and rules.
3 3. The board shall submit to the director of the division of the budg-
4 et an annual plan that details the amount of money the board deems
5 necessary to maintain the operations, compliance and enforcement of the
6 provisions of this chapter. Contingent upon approval of the director of
7 the division of the budget, the board shall pay into an account, to be
8 known as the racing regulation account, under the joint custody of the
9 comptroller and the board, the total amount of the regulatory fees
10 collected pursuant to this chapter. With the approval of the director of
11 the budget, monies to be utilized to maintain the operations necessary
12 to implement the provisions of this chapter shall be paid out of such
13 account on the audit and warrant of the comptroller on vouchers certi-
14 fied and approved by the director of the division of the budget or his
15 duly designated official.
16 § 2. Subdivision 1 of section 228 of the racing, pari-mutuel wagering
17 and breeding law, as amended by chapter 281 of the laws of 1994, is
18 amended to read as follows:
19 1. Every corporation or association authorized under this chapter to
20 conduct pari-mutuel betting at a race meeting on races run thereat,
21 except as provided in section two hundred twenty-nine of this chapter
22 with respect to nonprofit racing associations, shall distribute all sums
23 deposited in any pari-mutuel pool to the holders of winning tickets
24 therein, providing such tickets be presented for payment before April
25 first of the year following the year of their purchase, less [seventeen
26 per centum of the total deposits in pools] an amount which shall be
27 established and retained by such racing association or corporation of
28 between fourteen to twenty per centum of the total deposits in pools
29 resulting from regular on-track bets and less [nineteen per centum]
30 sixteen to twenty-two per centum of the total deposits in pools result-
31 ing from multiple on-track bets and less [twenty-five per centum] twenty
32 to thirty per centum of the total deposits in pools resulting from exot-
33 ic on-track bets and less twenty to thirty-six per centum of the total
34 pools resulting from super exotic on-track bets, plus the breaks. The
35 retention rate to be established is subject to the prior approval of the
36 racing and wagering board. Such rate may not be changed more than once
37 per calendar quarter to be effective on the first day of the calendar
38 quarter. "Exotic bets" and "multiple bets" shall have the meanings set
39 forth in section five hundred nineteen of this chapter and breaks are
40 hereby defined as the odd cents over any multiple of ten, or for exotic
41 bets over any multiple of fifty, or for super exotic bets, over any
42 multiple of one hundred, calculated on the basis of one dollar, other-
43 wise payable to a patron provided, however, that effective after October
44 fifteenth, nineteen hundred ninety-four breaks are hereby defined as the
45 odd cents over any multiple of five for payoffs greater than one dollar
46 five cents but less than five dollars, over any multiple of ten for
47 payoffs greater than five dollars but less than twenty-five dollars,
48 over any multiple of twenty-five for payoffs greater than twenty-five
49 dollars but less than two hundred fifty dollars, or over any multiple of
50 fifty for payoffs over two hundred fifty dollars. "Super exotic bets"
51 shall have the meaning set forth in section three hundred one of this
52 chapter. Of the amount so retained there shall be paid by such corpo-
53 ration or association to the state tax commission as a reasonable tax by
54 the state for the privilege of conducting pari-mutuel betting on the
55 races run at the race meeting held by such corporation or association,
56 which tax is hereby levied, the following percentages of the total pool,
S. 1409 20 A. 2109
1 plus fifty-five per centum of the breaks; the applicable rates for regu-
2 lar and multiple bets shall be one and one-half per centum; the applica-
3 ble rates for exotic bets shall be six and three-quarter per centum and
4 the applicable rate for super exotic bets shall be seven and three-quar-
5 ter per centum. Effective on and after September first, nineteen hundred
6 ninety-four, the applicable tax rate shall be one per centum of all
7 wagers, provided that, an amount equal to one-half the difference
8 between the taxation rate for on-track regular, multiple and exotic bets
9 as of December thirty-first, nineteen hundred ninety-three and the rates
10 on such on-track wagers as herein provided shall be used exclusively for
11 purses. Provided, however, that for any twelve-month period beginning on
12 April first in nineteen hundred ninety and any year thereafter, each of
13 the applicable rates set forth above shall be increased by one-quarter
14 of one per centum on all on-track bets of any such racing association or
15 corporation that did not expend an amount equal to at least one-half of
16 one per centum of its on-track bets during the immediately preceding
17 calendar year for enhancements consisting of capital improvements as
18 defined by section two hundred twenty-eight-a of this article, repairs
19 to its physical plant, structures, and equipment used in its racing or
20 wagering operations as certified by the state racing and wagering board
21 to the commissioner of taxation and finance no later than eighty days
22 after the close of such calendar year, and five special events at each
23 track in each calendar year, not otherwise conducted in the ordinary
24 course of business, the purpose of which shall be to encourage, attract
25 and promote track attendance and encourage new and continued patronage,
26 which events shall be approved by the racing and wagering board for
27 purposes of this subdivision. In the determination of the amounts
28 expended for such enhancements, the board may consider the immediately
29 preceding twelve month calendar period or the average of the two imme-
30 diately preceding twelve month calendar periods. Provided further,
31 however, that of the portion of the increased amounts retained by such
32 association or corporation above those amounts retained in nineteen
33 hundred eighty-four, an amount of such increase shall be distributed to
34 purses in the same proportion as commissions and purses were distributed
35 during nineteen hundred eighty-four as certified by the board. Such
36 corporation or association in the second zone shall receive a credit
37 against the daily tax imposed by this subdivision in an amount equal to
38 one per centum of total daily pools resulting from the simulcast of such
39 corporation's or association's races to licensed facilities operated by
40 regional off-track betting corporations in accordance with section one
41 thousand eight of this chapter, provided however, that sixty per centum
42 of the amount of such credit shall be used exclusively to increase purs-
43 es for overnight races conducted by such corporation or association;
44 and, provided further, that in no event shall such total daily credit
45 exceed one per centum of the total daily pool of such association or
46 corporation. Provided, however, that on and after September first, nine-
47 teen hundred ninety-four such credit shall be four-tenths percent of
48 total daily pools resulting from such simulcasting and that in no event
49 shall such total daily credit equal four-tenths percent of the total
50 daily pool of such association or corporation. Such corporation or asso-
51 ciation shall pay to the New York state thoroughbred breeding and devel-
52 opment fund one-half of one per centum of the total daily on-track pari-
53 mutuel pools from regular, multiple and exotic bets, and three per
54 centum of super exotic bets. The corporation or association shall
55 receive credit as a reduction of the tax by the state for the privilege
56 of conducting pari-mutuel betting for the amounts, except amounts paid
S. 1409 21 A. 2109
1 from super exotic betting pools, paid to the New York state thoroughbred
2 breeding and development fund after January first, nineteen hundred
3 seventy-eight.
4 Such corporation or association shall distribute to purses an amount
5 equal to fifty per centum of any compensation it receives from simul-
6 casting or from wagering conducted outside the United States. Such
7 corporation or association shall pay to the racing and wagering board as
8 a regulatory fee, which fee is hereby levied, one-half of one per centum
9 of the total daily on-track pari-mutuel pools of such corporation or
10 association.
11 § 3. Paragraphs (a) and (e) of subdivision 1 of section 229 of the
12 racing, pari-mutuel wagering and breeding law, paragraph (a) as amended
13 by chapter 94 of the laws of 2001 and paragraph (e) as amended by chap-
14 ter 277 of the laws of 2001, are amended to read as follows:
15 (a) Every nonprofit racing association authorized under this chapter
16 to conduct pari-mutuel betting at a race meeting or races run thereat
17 shall distribute all sums deposited in any pari-mutuel pool to the hold-
18 ers of winning tickets therein, provided such tickets be presented for
19 payment before April first of the year following the year of their
20 purchase, less seventeen per centum of the total deposits in pools
21 resulting from on-track regular and multiple bets and twenty-five per
22 centum of the total deposits in pools resulting from on-track exotic
23 bets and thirty-six per centum of the total deposits in pools resulting
24 from on-track super exotic bets, provided, however, that during the
25 period July twenty-first, nineteen hundred ninety-five through July
26 twenty-fourth, two thousand one, fifteen per centum of total deposits in
27 pools resulting from on-track regular bets and twenty per centum of
28 total deposits in pools resulting from on-track multiple bets; provided,
29 however, that during the period July twenty-fifth, two thousand one
30 through June thirtieth, two thousand four, [fourteen] an amount shall be
31 established and retained by such nonprofit racing association of between
32 twelve to seventeen per centum of total deposits in pools resulting from
33 on-track regular bets, [seventeen and one-half] fourteen to twenty-one
34 per centum of the total deposits in pools resulting from on-track multi-
35 ple bets and [twenty] fifteen to twenty-five per centum of the total
36 deposits resulting from an exotic wager which requires the selection of
37 the winner of six designated pari-mutuel races, also known as the pick
38 six, unless there is a carry-over as defined by the rules of the board,
39 shall be retained by such nonprofit racing association plus the breaks.
40 The retention rate to be established is subject to the prior approval of
41 the racing and wagering board. Such rate may not be changed more than
42 once per calendar quarter to be effective on the first day of the calen-
43 dar quarter. "Exotic bets" and "multiple bets" shall have the meanings
44 set forth in section five hundred nineteen of this chapter. "Super exot-
45 ic bets" shall have the meaning set forth in section three hundred one
46 of this chapter. For purposes of this section, a "pick six bet" shall
47 mean a single bet or wager on the outcomes of six races. The breaks are
48 hereby defined as the odd cents over any multiple of five for payoffs
49 greater than one dollar five cents but less than five dollars, over any
50 multiple of ten for payoffs greater than five dollars but less than
51 twenty-five dollars, over any multiple of twenty-five for payoffs great-
52 er than twenty-five dollars but less than two hundred fifty dollars, or
53 over any multiple of fifty for payoffs over two hundred fifty dollars.
54 Out of the amount so retained there shall be paid by such nonprofit
55 racing association to the commissioner of taxation and finance, as a
56 reasonable tax by the state for the privilege of conducting pari-mutuel
S. 1409 22 A. 2109
1 betting on the races run at the race meetings held by such nonprofit
2 racing association, the following percentages of the total pool for
3 regular and multiple bets five per centum of regular bets and four per
4 centum of multiple bets plus twenty per centum of the breaks; for exotic
5 wagers seven and one-half per centum plus twenty per centum of the
6 breaks, and for super exotic bets seven and one-half per centum plus
7 fifty per centum of the breaks. For the period June first, nineteen
8 hundred ninety-five through September ninth, nineteen hundred ninety-
9 nine, such tax on regular wagers shall be three per centum and such tax
10 on multiple wagers shall be two and one-half per centum, plus twenty per
11 centum of the breaks. For the period September tenth, nineteen hundred
12 ninety-nine through March thirty-first, two thousand one, such tax on
13 all wagers shall be two and six-tenths per centum and for the period
14 April first, two thousand one through December thirty-first, two thou-
15 sand seven, such tax on all wagers shall be one and six-tenths per
16 centum, plus, in each such period, twenty per centum of the breaks.
17 Payment to the New York state thoroughbred breeding and development fund
18 by such association shall be one-half of one per centum of total daily
19 on-track pari-mutuel pools resulting from regular, multiple and exotic
20 bets and three per centum of super exotic bets provided, however, that
21 for the period September tenth, nineteen hundred ninety-nine through
22 March thirty-first, two thousand one, such payment shall be six-tenths
23 of one per centum of regular, multiple and exotic pools and for the
24 period April first, two thousand one through December thirty-first, two
25 thousand seven, such payment shall be seven-tenths of one per centum of
26 such pools.
27 (e) The pari-mutuel tax rate authorized by paragraph (a) of this
28 subdivision shall be effective so long as a non-profit racing associ-
29 ation notifies the racing and wagering board by August fifteenth of each
30 year that such pari-mutuel tax rate is effective of its intent to
31 conduct a race meeting at Aqueduct racetrack during the months of Decem-
32 ber, January, February, March and April. For purposes of this paragraph
33 such race meeting shall consist of not less than ninety-five days of
34 racing. Not later than May first of each year that such pari-mutuel tax
35 rate is effective, the racing and wagering board shall determine whether
36 a race meeting at Aqueduct racetrack consisted of the number of days as
37 required by this paragraph. In determining the number of race days,
38 cancellation of a race day because of an act of God, which the racing
39 and wagering board approves or because of weather conditions that are
40 unsafe or hazardous which the racing and wagering board approves shall
41 not be construed as a failure to conduct a race day. Additionally,
42 cancellation of a race day because of circumstances beyond the control
43 of such non-profit racing association for which the racing and wagering
44 board gives approval shall not be construed as a failure to conduct a
45 race day. If the racing and wagering board determines that the number of
46 days of racing as required by this paragraph have not occurred then the
47 pari-mutuel tax rate in paragraph (a) of this subdivision shall revert
48 to the pari-mutuel tax rates in effect prior to January first, nineteen
49 hundred ninety-five. Such non-profit racing association shall pay to
50 the racing and wagering board as a regulatory fee, which fee is hereby
51 levied, one-half of one per centum of the total daily on-track pari-mu-
52 tuel pools of such association.
53 § 4. Section 239 of the racing, pari-mutuel wagering and breeding law
54 is amended to read as follows:
55 § 239. Approval of plans of corporation or association. The state
56 racing and wagering board shall not grant to a corporation or associ-
S. 1409 23 A. 2109
1 ation hereafter formed pursuant to sections two hundred one through two
2 hundred twenty-one of this chapter, a license to conduct a running or
3 steeplechase race meeting within the state until such corporation or
4 association shall have submitted to the board a statement of the
5 location of its proposed grounds and racetrack, together with a plan of
6 such racetrack, and plans of all buildings, seating stands and other
7 structures, in such form as the board may prescribe, and such plans
8 shall have been approved by the board. The board at the expense of the
9 applicant may order such engineering examination thereof as the board
10 may deem necessary. [Alterations of buildings, seating stands or other
11 structures, and the erection of new or additional buildings, seating
12 stands or other structures on the grounds of any corporation or associ-
13 ation heretofore or hereafter formed pursuant to sections two hundred
14 one through two hundred twenty-one of this chapter may be made only with
15 the approval of the board and after examination and inspection of the
16 plans thereof and the issuance of a permit therefor by such board.] The
17 approval of the certificate of incorporation of such corporation or
18 association shall not be deemed to vest in it the right to a license to
19 conduct running or steeplechase race meetings at such race course or
20 racetrack unless such grounds, track, buildings, seating stands and
21 other structures shall be completed in accordance with the plans
22 approved by the board.
23 § 5. Subdivision 4 of section 301 of the racing, pari-mutuel wagering
24 and breeding law, as amended by chapter 2 of the laws of 1995, is
25 amended to read as follows:
26 4. The term "super exotic bet" or "super exotic wager", as used in
27 this chapter, shall mean a single bet or wager on six or more horses,
28 evidenced by a single ticket and representing an interest in a betting
29 pool hereby authorized to be conducted by licensed racing associations
30 or corporations or regional off-track betting corporations pursuant to
31 rules and regulations of the state racing and wagering board. Such rules
32 and regulations shall provide the manner in which winning tickets in
33 such pool shall be determined and may provide that a portion only of the
34 amounts otherwise available to winners of such pools be paid to holders
35 of consolation tickets combining the most winning horses as provided in
36 such rules and regulations and that the balance of amounts otherwise
37 available to winners from such pool be carried forward and deposited in
38 any subsequent super exotic pools. Such rules and regulations shall also
39 provide that an amount not to exceed six per centum of the total wagers
40 in each super exotic pool may be used or accumulated to reimburse any
41 such association or corporation conducting such pool for the cost of
42 assuring an advertised winning pay-out for winning wagers or for a capi-
43 tal improvement fund or to reimburse any such association or corporation
44 for amounts it has contributed to the amounts otherwise available for
45 winning wagers to increase the pay-out therefor. Such rules and regu-
46 lations may further provide that all of the amounts available for
47 winning tickets and accumulations therefor shall be distributed period-
48 ically to holders of tickets combining the most winners in a pool
49 conducted upon a date specified by the board and, in any event, shall
50 provide for complete disposition of all amounts available for winning
51 tickets and accumulations therefor before the end of the licensed meet
52 during which such super exotic pools are conducted. Notwithstanding the
53 foregoing or any other provisions of law, [if a nonprofit racing associ-
54 ation, a thoroughbred racing association or corporation, a harness
55 racing association or corporation or an off-track betting corporation
56 chooses to reduce the take out on super exotic bets to twenty-five per
S. 1409 24 A. 2109
1 centum,] all distributions [and], taxes and regulatory fees on super
2 exotic bets shall be distributed as though the bet were an exotic bet,
3 except that a balance may be retained and deposited in subsequent pools.
4 § 6. The opening paragraph of subdivision 1 of section 318 of the
5 racing, pari-mutuel wagering and breeding law, as amended by chapter 281
6 of the laws of 1994, is amended and a new paragraph d is added to read
7 as follows:
8 Except as otherwise provided by law, every association or corporation
9 authorized under this article to conduct pari-mutuel betting at a
10 harness horse race meeting on races run thereat shall distribute all
11 sums deposited in any pari-mutuel pool to the holders of winning tickets
12 therein, provided such tickets be presented for payment prior to April
13 first of the year following the year of their purchase, less [seventeen
14 per centum of the total deposits in pools] an amount which shall be
15 established and retained by such racing association or corporation of
16 between fourteen and twenty per centum of the total deposits in pools
17 resulting from regular bets, less [nineteen per centum] sixteen to twen-
18 ty-two per centum of the total deposits in pools resulting from multiple
19 bets, less [twenty-five per centum] twenty to thirty per centum of the
20 total deposits in pools resulting from exotic bets, and less [thirty-six
21 per centum] twenty to thirty-six per centum of the total betting depos-
22 its in pools resulting from super exotic bets, plus the breaks. [In
23 accordance with section nine hundred one of this chapter, the board may
24 approve an application from any harness racing association or corpo-
25 ration to reduce the retained percentages as herein required by no more
26 than six percentage points for each pari-mutuel pool resulting from
27 regular, multiple or exotic bets. Except as otherwise provided in this
28 section, such application shall require the written consent of such
29 track's horsemen's association or corporation.] The retention rate to be
30 established is subject to the prior approval of the racing and wagering
31 board. Such rate may not be changed more than once per calendar quarter
32 to be effective on the first day of the calendar quarter.
33 d. Every harness racing association or corporation shall pay to the
34 board as a regulatory fee, which fee is hereby levied, one-half of one
35 percent of the total daily on-track pari-mutuel pools of such associ-
36 ation or corporation.
37 § 7. Section 322 of the racing, pari-mutuel wagering and breeding law
38 is amended to read as follows:
39 § 322. Approval of plans of corporation or association. The state
40 racing and wagering board shall not grant to a corporation or associ-
41 ation hereafter formed pursuant to sections two hundred twenty-two
42 through seven hundred five of this chapter, a license to conduct a
43 harness race meeting at which pari-mutuel betting may be conducted with-
44 in the state until such corporation or association shall have submitted
45 to the board a statement of the location of its proposed grounds and
46 racetrack, together with a plan of such racetrack, and plans of all
47 buildings, seating stands and other structures in such form as the board
48 may prescribe, and such plans shall have been approved in writing by the
49 board. [Alterations of existing buildings, seating stands and other
50 structures, and the erection of new or additional buildings, seating
51 stands or other structures may be made only with the written approval of
52 the board and after examination and inspection of the plans thereof and
53 the issuance of a permit therefor by the state racing and wagering
54 board.] The board at the expense of the applicant may order such engi-
55 neering examination thereof as the board may deem necessary. The
56 approval of the certificate of incorporation of such corporation or
S. 1409 25 A. 2109
1 association shall not be deemed to vest in it the right to a license to
2 conduct harness race meetings at such race course or racetrack unless
3 such grounds, track, buildings, seating stands and other structures
4 shall be completed in accordance with the plans approved by the board.
5 § 8. Subdivision 1 of section 508 of the racing, pari-mutuel wagering
6 and breeding law is amended to read as follows:
7 1. Each corporation shall have the power and is hereby authorized,
8 from time to time, [subject to the approval of the board] to issue nego-
9 tiable bonds and notes in such aggregate principal amounts as shall, in
10 the opinion of the corporation, be necessary together with such other
11 moneys or funds as may be available to the corporation, to provide funds
12 sufficient to enable the corporation to carry out its corporate
13 purposes, including the acquisition, construction, maintenance and
14 repair of personal and real property, the payment of interest on and
15 amortization of or payment of such bonds and notes, the establishment of
16 reserves or sinking funds to secure such bonds and notes, and all other
17 expenditures of the corporation incident to and necessary or desirable
18 for the carrying out of its corporate purposes and the exercise of its
19 powers. Except as may otherwise be expressly provided by the corpo-
20 ration, every issue of its bonds and notes shall be general obligations
21 of the corporation payable out of any revenues or moneys of the corpo-
22 ration, subject only to any agreements with the holders of particular
23 bonds or notes pledging any particular revenues or moneys. Whether or
24 not the bonds or notes are of such form and character as to be negoti-
25 able instruments under the provisions of article eight of the uniform
26 commercial code, the bonds and notes shall be and are hereby made nego-
27 tiable instruments within the meaning of and for all purposes of article
28 eight of the uniform commercial code, subject only to the provisions of
29 the bonds or notes for registration.
30 § 9. Subdivision 3 of section 524 of the racing, pari-mutuel wagering
31 and breeding law is amended to read as follows:
32 3. [Monthly] Quarterly financial statements shall be submitted by each
33 corporation to the board within fifteen days after the end of each
34 [month] calendar quarter, and shall include a balance sheet, a statement
35 of revenue net of expenses, statement of cash flow, a breakdown of oper-
36 ating and administrative expenses for the [month] quarter preceding
37 submission of the report and for the year to date. All such reports
38 shall be subject to audit by the state comptroller and shall be public
39 records.
40 § 10. The opening paragraph and the opening paragraph of subdivision 1
41 of section 527 of the racing, pari-mutuel wagering and breeding law, the
42 opening paragraph as amended by chapter 94 of the laws of 2001 and the
43 opening paragraph of subdivision 1 as amended by chapter 116 of the laws
44 of 2001, are amended to read as follows:
45 Each regional corporation conducting off-track betting shall distrib-
46 ute all sums deposited in any pari-mutuel pool through such corporation
47 to the holders of winning tickets therein, providing such tickets be
48 presented for payment prior to April first of the year following the
49 year of their purchase, less [seventeen per centum of the total deposits
50 in pools resulting from regular bets, less nineteen per centum of the
51 total deposits in pools resulting from multiple bets except such pools
52 on races conducted by a nonprofit racing association which shall be
53 seventeen per centum, less twenty-five per centum of the total deposits
54 in pools resulting from exotic bets, and less thirty-six per centum of
55 the total deposits in pools resulting from super exotic bets plus the
56 breaks; less an additional two per centum of the total deposits in all
S. 1409 26 A. 2109
1 pools of bets on thoroughbred races conducted by a thoroughbred track in
2 the Catskill region conducting a mixed meeting. The board may approve an
3 application from any regional off-track betting corporation to reduce
4 the retained percentages from any regional harness track as herein
5 required by no more than six percentage points for each pari-mutuel pool
6 resulting from regular, multiple or exotic bets. Provided, however, from
7 July twenty-first, nineteen hundred ninety-five through July twenty-
8 fourth, two thousand one, all such regional corporations shall retain
9 fifteen percent of the total deposits in pools resulting from regular
10 bets and twenty percent of the total deposits in pools resulting from
11 multiple bets plus the breaks on races conducted by a nonprofit racing
12 association. Provided, however, for the period July twenty-fifth, two
13 thousand one through June thirtieth, two thousand four all such regional
14 corporations shall retain fourteen per centum of the total deposits in
15 pools resulting from regular bets, seventeen and one-half per centum of
16 the total deposits in pools resulting from multiple bets and twenty per
17 centum of the total deposits in pools resulting from an exotic wager
18 which requires the selection of the winner of six designated pari-mutuel
19 races also known as the pick six unless there is a carry-over as defined
20 by the rules of the board, plus the breaks on races conducted by a
21 nonprofit racing association] an amount which it shall retain at the
22 same rate established by the sending track.
23 The disposition of the retained commission from pools resulting from
24 regular, multiple or exotic bets, as the case may be, whether placed on
25 races run within a region or outside a region, conducted by nonprofit
26 racing associations, racing associations, harness racing associations or
27 corporations, quarter horse racing associations or corporations or races
28 run outside the state shall be governed by the tables in paragraphs a
29 and b of this subdivision. The rate denominated "state tax" shall repre-
30 sent the rate of a reasonable tax imposed upon the retained commission
31 for the privilege of conducting off-track pari-mutuel betting, which tax
32 is hereby levied and shall be payable in the manner set forth in this
33 section. Each off-track betting corporation shall pay to the racing and
34 wagering board as a regulatory fee, which fee is hereby levied, one-half
35 of one percent of the total daily pools of such corporation. Each corpo-
36 ration shall also pay twenty per centum of the breaks derived from bets
37 on harness races and fifty per centum of the breaks derived from bets on
38 all other races to the agriculture and New York State horse breeding and
39 development fund and to the thoroughbred breeding and development fund,
40 the total of such payments to be apportioned fifty per centum to each
41 such fund. For the purposes of this section, the New York city, Suffolk,
42 Nassau, and the Catskill regions shall constitute a single region and
43 any thoroughbred track located within the Capital District region shall
44 be deemed to be within such single region. A "regional meeting" shall
45 refer to either harness or thoroughbred meetings, or both, except that a
46 nonprofit racing association shall not be a regional track for the
47 purpose of receiving distributions from bets on thoroughbred races
48 conducted by a thoroughbred track in the Catskill region conducting a
49 mixed meeting. Racing associations or corporations first licensed to
50 conduct pari-mutuel racing after January first, nineteen hundred eight-
51 y-six or a harness racing association or corporation first licensed to
52 conduct pari-mutuel wagering at a track located in Genesee County after
53 January first, two thousand four, and quarter horse tracks shall not be
54 "regional tracks"; if there is more than one harness track within a
55 region, such tracks shall evenly divide payments made pursuant to the
56 tables in paragraphs a and b of this subdivision when neither track is
S. 1409 27 A. 2109
1 running. Nothing in this section shall be construed to authorize the
2 conduct of off-track betting contrary to the provisions of section five
3 hundred twenty-three of this article.
4 § 11. Section 901 of the racing, pari-mutuel wagering and breeding
5 law, the opening paragraph and subparagraph (i) of paragraph b of subdi-
6 vision 5 as amended by chapter 346 of the laws of 1990 and paragraph c
7 of subdivision 5 as amended by chapter 659 of the laws of 1986, is
8 amended to read as follows:
9 § 901. Reduction in retained commission. 1. [Notwithstanding any
10 inconsistent provision of sections two hundred twenty-two through seven
11 hundred five of this chapter, any nonprofit racing association author-
12 ized to hold a running race meet or meetings within zones one and two,
13 for the period beginning July twenty-eighth, nineteen hundred eighty-one
14 and ending June thirtieth, nineteen hundred eighty-three, shall reduce
15 the percentages retained from all pari-mutuel pools of regular and
16 multiple on-track wagers on races run at any such meet or meetings from
17 seventeen per centum to fifteen per centum of such pools of regular
18 bets, and from seventeen per centum to sixteen per centum per centum of
19 such pools of multiple bets. The percentage retained from all such off-
20 track wagers on such races shall be seventeen per centum of such pools.
21 2. The rate of tax imposed and hereby levied upon such nonprofit
22 racing association with respect to its pools of regular and multiple
23 wagers for the period ending June thirtieth, nineteen hundred eighty-
24 three, for any racing day for which such reduction is applicable,
25 subject to other provisions of sections two hundred twenty-two through
26 seven hundred five of this chapter regarding payment and penalties,
27 shall be three per centum of such pools of regular wagers and four per
28 centum of such pools of multiple wagers, plus twenty per centum of the
29 breaks allocated to such association in accordance with paragraph f of
30 subdivision three of this section. The board shall submit comprehensive
31 reports to the governor and the legislature on the effects, both
32 on-track and off-track, of the lower retention on attendance, the size
33 of the total daily pool, the pattern of wagering and all other aspects
34 of the impact on thoroughbred and standardbred racing and wagering,
35 together with its recommendations for further action, prior to March
36 first, nineteen hundred eighty-three for the period of reduced takeout
37 ending June thirtieth, nineteen hundred eighty-three.
38 3. The distribution of the wagering pools to the holders of winning
39 tickets during such period shall be governed by the provisions of this
40 subdivision.
41 a. All off-track wagers shall be combined with on-track wagers into
42 single pools for calculating the odds.
43 b. Tentative payments on regular and multiple wagers shall be calcu-
44 lated on the basis of returning eighty-three per centum of the combined
45 pool, less the breaks as defined in section two hundred twenty-nine of
46 this chapter, to holders of all winning tickets.
47 c. Tentative payments on regular and multiple wagers shall also be
48 calculated on the basis of returning eighty-five and eighty-four per
49 centum, respectively, of the combined pool, less the breaks as defined
50 in section two hundred twenty-nine of this chapter, to holders of all
51 winning tickets.
52 d. Regional off-track betting corporations shall distribute the
53 amounts determined in paragraph b of this subdivision to holders of
54 winning tickets issued by them retaining the amounts required by subdi-
55 vision three of section five hundred thirty-three of this chapter.
S. 1409 28 A. 2109
1 e. After deducting the amounts retained by the regional off-track
2 betting corporations pursuant to subdivision one of this section and
3 paragraph d of this subdivision, the balance of the pool remaining after
4 such distribution shall be available to nonprofit racing associations
5 for payment to holders of winning tickets issued by them. Such payments
6 shall be in the amounts determined in paragraph c of this subdivision.
7 f. The amount of the total combined pool less the amounts of combined
8 retention and combined payouts shall be credited to a special breakage
9 account. The amount in such account at the end of each calendar month
10 shall be distributed as breaks to each nonprofit racing association and
11 regional off-track betting corporation.
12 g. In the event that distributions required to be made pursuant to
13 paragraph e of this subdivision are in excess of the total amount of
14 pari-mutuel pool available to the nonprofit racing associations, then
15 each such association may withdraw an amount from the breakage account,
16 established pursuant to paragraph f of this subdivision, sufficient to
17 meet such excess requirement. To the extent that moneys in the breakage
18 account are insufficient, then each such association will meet its
19 excess requirement from its normal operating revenues.
20 h. The operation of this section shall be subject to the rules and
21 regulations of the state racing and wagering board.
22 4.] Notwithstanding the provisions of subdivision two of section five
23 hundred twenty-three of this chapter, the board shall authorize regional
24 off-track betting corporations to accept additional wagers on multiple
25 betting opportunities on races conducted by any nonprofit racing associ-
26 ation, provided, however, that from July thirty-first, nineteen hundred
27 seventy-eight through January first, nineteen hundred seventy-nine, the
28 following wagering opportunities shall be authorized only for such
29 corporations:
30 a. An "additional daily double," defined as a single bet or wager to
31 select the winning horses in any two races other than the first four
32 races, and
33 b. A "quinella," defined as a single bet or wager to select the horses
34 finishing first and second, in either order of finish, in the same race.
35 The "quinella" shall be offered on as many as three races on each day
36 racing is conducted.
37 Provided, however, that on and after January first, nineteen hundred
38 seventy-nine, nonprofit racing associations may elect to offer such
39 similar additional daily double and quinella wagering opportunities. If
40 such associations offer two or more quinellas, as defined herein, the
41 provisions of section five hundred twenty-three of this chapter, as
42 modified by the provisions of subdivisions one, two and three of this
43 section, with respect to combined pools shall apply with respect to such
44 wagering opportunities. At any time such associations do not offer at
45 least two quinellas, the provisions of this subdivision with respect to
46 separate authorizations for regional corporations shall remain in effect
47 with respect to such quinella wagers.
48 [If such associations offer an additional daily double, as defined
49 herein, the provisions of section five hundred twenty-three of this
50 chapter, as modified by the provisions of subdivisions one, two and
51 three of this section, with respect to combined pools shall apply with
52 respect to such wagering opportunities.] At any time such associations
53 do not offer such an additional daily double, the provisions of this
54 subdivision with respect to separate authorizations for regional corpo-
55 rations shall remain in effect with respect to such an additional daily
56 double wager.
S. 1409 29 A. 2109
1 Whenever regional off-track betting corporations offer wagers pursuant
2 to this subdivision that are not combined in a common pool with similar
3 on-track wagers, the provisions of subdivision eight of section five
4 hundred twenty-three of this chapter shall apply to such wagers.
5 [5]2. a. In addition to the authority granted under subdivision
6 [four] one of this section, the board shall require, under conditions
7 subject to its approval, the track operator for such nonprofit racing
8 associations to provide direct transmissions into selected regional
9 off-track facilities of a current "live call of the race," defined as
10 the current positions of the horses at specified places on the track
11 during the race. The track operator itself may perform the broadcast;
12 or, provide appropriate space and facilities to enable a single, alter-
13 native broadcast to be performed solely for the use of regional off-
14 track betting corporations, the expense of such alternative broadcast to
15 be borne by such regional corporations, at the discretion of such
16 regional corporations. In either case, all incremental transmission
17 costs are to be borne by such regional corporations.
18 b. The regional off-track betting facilities, each of which shall have
19 been in operation for six months or more prior to receiving such trans-
20 missions and at least forty percent of which shall have had a total pool
21 on races of such nonprofit racing associations during such period equal
22 to or greater than the median pool on such races in all such facilities
23 in such county, that shall receive such transmissions are authorized as
24 follows, provided that such requirements with respect to duration of
25 operation and total pool shall not apply to facilities in the New York
26 city region:
27 (i) for the New York city region, any facility, located more than five
28 miles from such operating non-profit racing association track, for which
29 the New York city off-track betting corporation requests such trans-
30 missions of such nonprofit racing associations.
31 (ii) for the Nassau region, one facility located at least ten miles
32 from any thoroughbred track operated by such nonprofit racing associ-
33 ations.
34 (iii) for the Suffolk region, one facility.
35 (iv) for the Catskill and Western regions, six facilities each,
36 provided, however, that no such transmissions are authorized into the
37 portion of the Western and Catskill regions in the thoroughbred special
38 betting district on those days that a thoroughbred track is conducting
39 racing in such special betting district.
40 (v) for the Capital District region, six facilities, provided, howev-
41 er, that no such transmissions are authorized into the Capital District
42 region on those days that a nonprofit racing association is conducting
43 races at a track located within such region. Nothing in this subpara-
44 graph shall prohibit such region and a nonprofit racing association from
45 entering into an agreement to provide such transmissions in additional
46 facilities subject to the restrictions in this subparagraph.
47 c. The board shall approve the request of each such regional off-track
48 betting corporation to transmit the call of the race, beginning January
49 first, nineteen hundred seventy-nine, into an additional, like number of
50 facilities as specified in paragraph b of this subdivision and subject
51 to the conditions in such paragraph. Provided, however, that nothing
52 shall prohibit such nonprofit racing association from entering into
53 agreements with such regional off-track betting corporations designating
54 additional facilities within the regions of such regional off-track
55 betting corporations that may offer a "live call of the race", except
56 that no such transmissions are authorized into the portion of the West-
S. 1409 30 A. 2109
1 ern and Catskill regions in the thoroughbred special betting district on
2 those days that a thoroughbred track is conducting racing in such
3 special betting district.
4 d. Notwithstanding any provisions to the contrary in this subdivision,
5 during and only during the period that such nonprofit racing association
6 shall conduct races at a racetrack not within the counties of Suffolk,
7 Nassau and the five counties comprising the city of New York, the track
8 operator for such nonprofit racing association shall provide direct
9 transmissions into all of the facilities operated by off-track betting
10 corporations, except those within the Capital District region and any
11 facilities within a thoroughbred special betting district, other than
12 those facilities authorized to accept wagers on races conducted by such
13 nonprofit association, on those days that a thoroughbred racing track is
14 conducting racing in such special betting district, of a current "live
15 call of the race" as defined, and subject to the conditions provided
16 for, in paragraph a of this subdivision. Provided, however, nothing
17 shall prohibit such nonprofit racing association from entering into an
18 agreement with the Capital District regional corporation designating
19 specific facilities within the Capital District region that may offer a
20 "live call of the race".
21 [6]3. A nonprofit racing association shall make available such space
22 and facilities as may be required to enable regional off-track betting
23 corporations to obtain the information specified in section two hundred
24 twenty-six of this chapter for transmission to patrons in the facilities
25 of such corporations. In addition, such associations shall cooperate
26 with such corporations in order to develop a system whereby off-track
27 wagers are combined with on-track wagers in a common pool, and the odds
28 or potential payoff reflecting or based upon that pool are displayed at
29 off-track facilities periodically during the time preceding the race on
30 which such wagers are made. The purpose of the system is to enable
31 wagers placed off-track to be combined concurrently with wagers placed
32 on-track until as close to the beginning of the race as is technically
33 feasible, with due regard for the security and accuracy of such system.
34 The costs of the changes adopted pursuant to this section shall be borne
35 by those regional off-track betting corporations electing to receive
36 such information or to combine the on-track and off-track pools on a
37 more timely basis.
38 [7] 4. Notwithstanding any other provision of law, the Western region
39 off-track betting corporation is hereby authorized to develop a system,
40 subject to approval of the board, whereby off-track wagers are combined
41 on a current basis with on-track wagers on races conducted by an associ-
42 ation or corporation licensed to conduct thoroughbred races at a track
43 located within the Western region. Such association or corporation shall
44 cooperate in the provision of such wagers and shall also provide on such
45 races direct transmission into the facilities of such regional corpo-
46 ration of a current "live call of the race" as defined in paragraph a of
47 subdivision [five] two of this section.
48 § 12. Paragraphs a and c of subdivision 1 of section 905 of the
49 racing, pari-mutuel wagering and breeding law, paragraph a as amended by
50 chapter 919 of the laws of 1986 and paragraph c as amended by chapter
51 524 of the laws of 1991, are amended to read as follows:
52 a. The applicable state tax provided for in paragraphs a and b of
53 subdivision one of section five hundred twenty-seven of this chapter
54 shall be one-half per centum for regular, multiple and exotic bets. Any
55 harness racing or association or corporation, nonprofit racing associ-
56 ation or thoroughbred racing association or corporation authorized
S. 1409 31 A. 2109
1 pursuant to this section shall pay to the racing and wagering board as a
2 regulatory fee, which fee is hereby levied, one-half of one percent of
3 the total daily pari-mutuel pools.
4 c. Every association, corporation and non-profit racing association
5 shall distribute all sums deposited in any pari-mutuel pool to the hold-
6 ers of winning tickets therein, providing such tickets be presented for
7 payment before April first of the year following the year of their
8 purchase, less [seventeen per centum of the total deposits in pools
9 resulting from regular bets and multiple bets less twenty-five per
10 centum of the total deposits in pools resulting from exotic bets, and,
11 with respect to super exotic wagers on the Breeder's Cup events, less
12 thirty-six per centum] an amount which it shall retain at the same rate
13 established by the sending track plus the breaks.
14 § 13. Section 905-a of the racing, pari-mutuel wagering and breeding
15 law is REPEALED.
16 § 14. Section 906 of the racing, pari-mutuel wagering and breeding law
17 is REPEALED.
18 § 15. Subdivisions 3 and 4 of section 907 of the racing, pari-mutuel
19 wagering and breeding law, subdivision 3 as added by chapter 346 of the
20 laws of 1990, subparagraph (i) of paragraph a of subdivision 3 as
21 amended by chapter 524 of the laws of 1991 and subdivision 4 as amended
22 by chapter 445 of the laws of 1997, are amended to read as follows:
23 3. Combining New York wagers on horse races conducted in other states
24 or foreign countries with wagers on such races made elsewhere.
25 a. The board may authorize the combination of wagers made in New York
26 state upon the outcome of out-of-state or foreign horse races with
27 wagers made upon such races elsewhere in accordance with rules and regu-
28 lations of the board which shall include but not be limited to the
29 following provisions:
30 (i) [that only races designated as special events pursuant to sections
31 nine hundred five, nine hundred five-a and nine hundred six of this
32 article shall be eligible for such authorization;
33 (ii)] that if such combination is authorized that all New York state
34 operators must participate therein to assure uniform New York odds and
35 pay-outs;
36 [(iii)] (ii) that if the out-of-state or foreign computation is made
37 on the basis of different retention or breakage rates and (A) such out-
38 of-state or foreign laws do not permit New York wagers to be computed in
39 accordance with New York retention and breakage rates, that such vari-
40 ation does not exceed twenty percent and will be allocated pro rata
41 among winning wagers in New York state and recipients of such retention
42 and breakage rates in New York state, or (B) if such out-of-state or
43 foreign laws do permit New York bets to be computed in accordance with
44 New York retention and breakage rates that such rates will be applied
45 and that the out-of-state or foreign operator doing such calculations is
46 willing and able to properly perform such function;
47 [(iv)] (iii) that the out-of-state or foreign rules governing such
48 wagers are understandable to New York wagerers and in the best judgment
49 of the board will not deviate substantially from customary and standard
50 pari-mutuel practice in general;
51 [(v)] (iv) that the New York operators are able to perform such trans-
52 mission and computer retrieval functions as may be required;
53 [(vi)] (v) that such combination will enhance the best interest of
54 racing generally; and
55 [(vii)] (vi) such other rules and regulations as may be deemed neces-
56 sary and appropriate by the board.
S. 1409 32 A. 2109
1 b. Nothing herein shall be construed to authorize or prescribe any act
2 contrary to federal law.
3 4. In those instances in which the retention rates of the out-of-state
4 track are different from the retention rates authorized in this section,
5 distribution to each of the entities entitled to receive payment under
6 section five hundred twenty-seven or article ten of this chapter after
7 payment of state taxes and regulatory fees shall be adjusted proportion-
8 ately in an appropriate manner to account for higher or lower retention
9 rates. For purposes of determining payment on out-of-state wagers the
10 retention rate shall be the amount sufficient to pay holders of winning
11 wagers plus any payments required to be made to the out-of-state track
12 which exceeds two per centum of handle.
13 § 16. Subdivision 3 of section 1007 of the racing, pari-mutuel wager-
14 ing and breeding law is amended by adding a new paragraph g to read as
15 follows:
16 g. Any harness racing or association or corporation, non-profit racing
17 association or thoroughbred racing association or corporation authorized
18 pursuant to this section shall pay to the racing and wagering board as a
19 regulatory fee, which fee is hereby levied, one-half of one percent of
20 the total daily pari-mutuel pools.
21 § 17. Subdivisions 6 and 7 of section 1007 of the racing, pari-mutuel
22 wagering and breeding law are REPEALED.
23 § 18. Paragraph b of subdivision 3 of section 1008 of the racing,
24 pari-mutuel wagering and breeding law, as amended by chapter 286 of the
25 laws of 1985, is amended to read as follows:
26 b. Of the sums received by the sending track, fifty percent shall be
27 distributed to purses in addition to moneys distributed pursuant to
28 section five hundred twenty-seven of this chapter. The off-track
29 betting corporation shall pay to the racing and wagering board as a
30 regulatory fee, which fee is hereby levied, one-half of one percent of
31 the total daily pools.
32 § 19. Subdivision 4 of section 1009 of the racing, pari-mutuel wager-
33 ing and breeding law is amended by adding a new paragraph d to read as
34 follows:
35 d. The operator shall pay to the racing and wagering board as a regu-
36 latory fee, which fee is hereby levied, one-half of one percent of the
37 total daily pools.
38 § 20. Section 1012 of the racing, pari-mutuel wagering and breeding
39 law, as added by chapter 346 of the laws of 1990, subdivisions 1, 2 and
40 paragraph a of subdivision 3 as amended by chapter 503 of the laws of
41 1992 and subdivision 6 as amended by chapter 113 of the laws of 2002, is
42 amended to read as follows:
43 § 1012. Telephone accounts and telephone wagering. Any regional off-
44 track betting corporation, and any non-profit racing association or
45 harness, thoroughbred, quarter horse racing association or corporation
46 licensed to conduct pari-mutuel racing may maintain telephone betting
47 accounts for wagers placed on races and special events offered by such
48 corporation, corporation or association.
49 1. [A minimum balance for a telephone account maintained by any
50 harness, thoroughbred, or quarter horse racing association or corpo-
51 ration shall be not less than three hundred dollars at the time of the
52 wager.] Any regional off-track betting corporation and any non-profit
53 racing association or harness, thoroughbred, quarter horse racing asso-
54 ciation or corporation licensed to conduct pari-mutuel racing may
55 require a minimum account balance in an amount to be determined by such
56 entity.
S. 1409 33 A. 2109
1 2. [A minimum balance for a telephone account maintained by a non-pro-
2 fit racing association shall be not less than four hundred fifty dollars
3 at the time of the wager for residents of New York or contiguous states
4 and not less than one hundred dollars at the time of the wager for resi-
5 dents of other states not contiguous with New York state.
6 3.] a. Any regional off-track betting corporation may suspend
7 collection of the surcharge imposed under section five hundred thirty-
8 two of this chapter on winning wagers placed in telephone accounts main-
9 tained by such regional corporation [provided that such account has a
10 minimum balance of not less than three hundred dollars at the time of
11 wager].
12 b. In a city of one million or more any regional off-track betting
13 corporation, with the approval of the mayor of such city, may suspend
14 collection of the surcharge imposed under section five hundred thirty-
15 two of this chapter in winning wagers placed in telephone accounts main-
16 tained by such regional corporation.
17 [4.] 3. Any telephone account maintained by a regional off-track
18 betting corporation, non-profit racing association or harness, thorough-
19 bred, quarter horse association or corporation, with inactivity for a
20 period of three years shall be forfeited and paid to the commissioner of
21 taxation and finance. Such amounts when collected shall be paid by the
22 commissioner of taxation and finance into the general fund of the state
23 treasury.
24 [5.] 4. The maintenance and operation of such telephone accounts
25 provided for in this section shall be subject to rules and regulations
26 of the state racing and wagering board. The board shall include in such
27 regulation a requirement that telephone account information pertaining
28 to surcharge and nonsurcharge telephone accounts shall be separately
29 reported.
30 [6.] 5. The provisions of this section shall expire and be of no
31 further force and effect after June thirtieth, two thousand seven.
32 § 21. Subdivision 1 of section 1015 of the racing, pari-mutuel wager-
33 ing and breeding law, as added by chapter 281 of the laws of 1994, the
34 opening paragraph as amended by chapter 113 of the laws of 2002 and
35 paragraphs b and j as amended by chapter 2 of the laws of 1995, is
36 amended to read as follows:
37 1. The provisions of this section shall govern the simulcasting of
38 races conducted at thoroughbred tracks located in another state or coun-
39 try on any day during which a non-profit racing association is conduct-
40 ing a race meeting in Saratoga county at Saratoga thoroughbred racetrack
41 until June thirtieth, two thousand seven and on any day regardless of
42 whether or not a non-profit racing association is conducting a race
43 meeting in Saratoga county at Saratoga thoroughbred racetrack after June
44 thirtieth, two thousand seven. On any day on which a non-profit racing
45 association has not scheduled a racing program but a thoroughbred racing
46 corporation located within the state is conducting racing, every off-
47 track betting corporation branch office and every simulcasting facility
48 licensed in accordance with section one thousand seven (that have
49 entered into a written agreement with such facility's representative
50 horsemen's organization, as approved by the board), one thousand eight,
51 or one thousand nine of this article shall be authorized to accept
52 wagers and display the live simulcast signal from thoroughbred tracks
53 located in another state or foreign country subject to the following
54 provisions:
55 a. Each off-track betting branch office accepting wagers on an out-of-
56 state track shall accept wagers on races run at the in-state track and
S. 1409 34 A. 2109
1 every simulcasting facility licensed in accordance with sections one
2 thousand seven, one thousand eight and one thousand nine of this article
3 which is accepting wagers and displaying the simulcast signal from an
4 out-of-state track shall similarly accept wagers and display the signal
5 from the in-state track.
6 b. [During those hours that an in-state thoroughbred track is conduct-
7 ing a racing program, simulcasting] Simulcasting facilities shall be
8 [limited] authorized to [displaying] accept wagers and display the live
9 simulcast signal from [one] out-of-state thoroughbred [track, although
10 no limitation shall be placed on the acceptance of wagers from out-of-
11 state tracks by off-track betting facilities except as may be imposed by
12 the racing and wagering board and provided further that no wager may be
13 accepted on races run at any out-of-state track located closer than
14 seventeen miles from the state border] tracks.
15 c. [On any day on which out-of-state simulcasting is authorized for
16 the time period preceding and following the in-state racing program, the
17 off-track betting branch offices and simulcast facilities licensed in
18 accordance with sections one thousand seven, one thousand eight and one
19 thousand nine of this article may accept wagers and display the signal
20 from up to three out-of-state or out-of-country thoroughbred tracks
21 provided that not more than two such programs shall be displayed contem-
22 poraneously and that no such signal shall be accepted between 7:30 and
23 11:59 postmeridian without the written consent of any regional harness
24 track.
25 d.] If a regional harness track is conducting racing on a day on which
26 out-of-state simulcasting is authorized, the off-track betting corpo-
27 ration shall be required to accept wagers and display the live simulcast
28 signal of such races provided the terms and conditions for accepting
29 such signal are no less favorable than those in effect on April first,
30 nineteen hundred ninety-three.
31 [e] d. Each off-track betting corporation shall determine the average
32 daily handle on the in-state thoroughbred corporation, the average daily
33 handle from out-of-state tracks and the average total daily payment made
34 to the in-state thoroughbred track on each day from April first, nine-
35 teen hundred ninety-three through December thirty-first, nineteen
36 hundred ninety-three on which the off-track betting corporation accepted
37 wagers on races conducted at such track and races conducted on an out-
38 of-state track on a day on which no scheduled races were conducted by a
39 non-profit racing association. This calculation shall be provided to the
40 racing and wagering board and the chief executive officers of the
41 in-state thoroughbred track and the horsemen's organization. If there is
42 a dispute as to the amount of such calculations, written documentation
43 from the off-track betting corporation and the track, shall be supplied
44 to the racing and wagering board which shall make a determination of the
45 correct amounts which determination shall be final and binding on all
46 parties.
47 [f] e. An amount equal to the calculated number shall be determined
48 to be the amount payable to the in-state thoroughbred racing corporation
49 as though such number were calculated on actual handle, using the
50 payment schedules, including distribution to purses, of article five-A
51 and article ten of this chapter provided such track conducts a program
52 of racing equivalent in racing dates and wagering opportunities to the
53 nineteen hundred ninety-three program.
54 [g] f. The amount shall be distributed in accordance with the
55 provisions of this section. The board shall determine the amount of and
56 dates of such payments, which dates shall, as far as practicable,
S. 1409 35 A. 2109
1 reflect the payments made to such track during the comparable period of
2 nineteen hundred ninety-three.
3 [h] g. (1) At the conclusion of the thoroughbred track corporation's
4 nineteen hundred ninety-four racing season or as shortly thereafter as
5 possible but not later than December twentieth, nineteen hundred nine-
6 ty-four, the off-track betting corporations and the racing and wagering
7 board shall determine the average daily handle for the in-state
8 thoroughbred racing corporation and the average daily handle for races
9 conducted at out-of-state or out-of-country tracks. If average daily
10 handle for any off-track betting corporation exceeds by ten percent the
11 average daily handle as calculated in paragraph [e] d of this subdivi-
12 sion, such off-track betting corporation shall pay to the in-state
13 thoroughbred racing corporation an amount calculated by multiplying the
14 average daily handle in excess of one hundred ten percent of the average
15 daily handle of nineteen hundred ninety-three by the effective commis-
16 sion rate paid by such corporation in nineteen hundred ninety-three.
17 Such calculation shall be computed separately for handle on in-state
18 tracks and handle on out-of-state tracks.
19 (2) For purposes of this section, the effective commission rate shall
20 be determined by dividing the total commission paid by the total handle
21 rounded to the nearest hundredth.
22 (3) For purposes of this chapter, total and average daily handle shall
23 have the same meaning as total and average daily wagers or bets.
24 [i] h. (1) Licensed harness tracks shall receive in lieu of any other
25 payments on wagers placed at off-track betting facilities outside the
26 special betting district on races conducted by an in-state thoroughbred
27 racing corporation, two and eight-tenths percent on regular and multiple
28 bets during a regional meeting and one and nine-tenths percent of such
29 bets if there is no regional meeting and four and eight-tenths percent
30 on exotic bets on days on which there is a regional meeting and three
31 and four-tenths percent of such bets if there is no regional meeting.
32 (2) (i) In addition, licensed harness tracks shall receive one and
33 one-half per centum on total handle on races conducted at an out-of-
34 state or out-of-country thoroughbred track provided such harness track
35 is neither accepting wagers nor displaying the signal from an out-of-
36 state track.
37 (ii) In those regions in which there is more than one licensed harness
38 track, if no track is accepting wagers or displaying the live simulcast
39 signal from the out-of-state track, the total sum shall be divided among
40 the tracks in proportion to the ratio the wagers placed on races
41 conducted by each track bears to the corporation's total in-region
42 harness handle. If one or more tracks are accepting wagers or displaying
43 the live simulcast signal, the total amount shall be divided among those
44 tracks not accepting wagers or displaying the simulcast signal for an
45 out-of-state track.
46 (3) The terms used in this section shall have the same applicability
47 and meaning as interpreted and applied in sections five hundred twenty-
48 three and five hundred twenty-seven of this chapter.
49 [j] i. Any facility authorized to accept wagers on out-of-state
50 tracks shall distribute all sums deposited in any pari-mutuel pool to
51 the holders of winning tickets therein, provided such tickets are
52 presented for payment prior to April first of the year following the
53 year of their purchase less eighteen per centum of the total deposits in
54 pools resulting from regular bets, less twenty-one per centum of the
55 total deposits in pools resulting from multiple bets, less twenty-six
56 per centum of the total deposits in pools resulting from exotic bets,
S. 1409 36 A. 2109
1 less thirty-six per centum of the total deposits in pools resulting from
2 super exotic bets plus the breaks as defined in section two hundred
3 twenty-eight of this chapter except that the retention rates and breaks
4 shall be as prescribed by another state or country if such wagers are
5 combined with those in the other state or country pursuant to section
6 nine hundred seven of this chapter.
7 (i) of the sum so retained, the applicable tax rate shall be one and
8 one-half percent of all such wagers plus fifty percent of the breaks;
9 provided, however, fifty percent of the breaks accruing from off-track
10 betting corporations licensed in accordance with section one thousand
11 eight of this article and from simulcast theaters licensed in accordance
12 with section one thousand nine of this article, shall be paid to the
13 agriculture and New York state horse breeding and development fund and
14 to the thoroughbred breeding and development fund, the total of such
15 payments to be apportioned fifty per centum to each such fund.
16 (ii) of the sums so retained, one-half of one per centum of all wagers
17 shall be paid to the New York state thoroughbred breeding and develop-
18 ment fund, except that of the sums so retained on such wagers at
19 licensed harness tracks, one-half of one per centum shall be paid to the
20 agricultural and New York State horse breeding and development fund.
21 (iii) of the sum so retained, two percent of all wagers shall be paid
22 to a non-profit racing association to be used exclusively for the
23 purpose of increasing purses, including stakes, premiums and prizes,
24 provided further that such amount shall not exceed the amount paid to
25 such non-profit racing association in nineteen hundred ninety-three from
26 wagers placed on out-of-state tracks on a day when no racing was being
27 conducted by the non-profit racing association and a racing program was
28 being conducted by a thoroughbred racing corporation located in the
29 state. The excess, if any, shall be paid to a thoroughbred racing corpo-
30 ration located in the state until August thirty-first, nineteen hundred
31 ninety-five and on and after July nineteen, nineteen hundred ninety-six
32 to be used exclusively for the purpose of increasing purses, including
33 stakes, premiums and prizes. An additional two percent of the sum so
34 retained shall be paid to non-profit racing association until August
35 thirty-first, nineteen hundred ninety-five, provided however fifty
36 percent of such amounts shall be used exclusively for purses at a non-
37 profit racing association.
38 (iv) any thoroughbred racing association or corporation or non-profit
39 racing association or harness racing association or corporation or off-
40 track betting corporation authorized pursuant to this section shall pay
41 to the racing and wagering board as a regulatory fee, which fee is here-
42 by levied, one-half of one percent of all wagering pools.
43 [k] j. (1) All wagers authorized by this section shall be combined so
44 as to produce common pari-mutuel betting pools for the calculation of
45 odds and the determination of payouts from such pools, which payouts
46 shall be made pursuant to the rules of the board. Every location author-
47 ized to accept wagers or display simulcasting pursuant to this section
48 shall be subject to all appropriate provisions of this chapter.
49 (2) Every regional off-track betting corporation may simulcast all
50 out-of-state races authorized by this section at any licensed simulcast
51 facility except for those facilities located in a thoroughbred special
52 betting district.
53 Facilities located in such special betting district may display the
54 simulcast signal with the permission of the thoroughbred track located
55 in such district or if such track displays the signal from an out-of-
56 state or out-of-country track.
S. 1409 37 A. 2109
1 [l] k. The provisions of section five hundred thirty-two of this
2 chapter shall apply as follows:
3 (1) for all wagers placed at facilities licensed to receive such out-
4 of-state or out-of-country simulcasts in accordance with section one
5 thousand eight of this article, distribution shall first be made in
6 accordance with subdivision three-a of section five hundred thirty-two
7 of this chapter, and then fifty percent of the remaining amount in
8 accordance with paragraph a of subdivision three of section five hundred
9 thirty-two of this chapter and the other fifty percent shall be retained
10 by such operator for its general purpose.
11 (2) upon application of any facility licensed in accordance with
12 sections one thousand seven and one thousand nine of this article, the
13 board shall authorize the imposition of a sum equal to the amount
14 authorized by section five hundred thirty-two of this chapter which
15 shall apply to wagers placed at such facility [except those events
16 described as special events]. Such sums received by facilities licensed
17 in accordance with section one thousand nine of this article shall be
18 retained for the general purpose of the corporation. Such sums received
19 by such facilities licensed in accordance with section one thousand
20 seven of this article shall be distributed as follows:
21 (i) fifty percent shall be used exclusively for purses awarded in
22 races conducted by such licensed facility; and
23 (ii) fifty percent shall be retained by such licensed facility for its
24 general purposes.
25 2. Nothing in this section shall be construed to prohibit the accept-
26 ance of wagers on races conducted at out-of-state tracks without the
27 display of the live simulcast signal if authorized under any other
28 provision of this chapter.
29 § 22. Subdivisions 2, 3 and 4 of section 1016 of the racing, pari-mu-
30 tuel wagering and breeding law, as added by chapter 281 of the laws of
31 1994 and the opening paragraph of subdivision 2 as amended by chapter
32 445 of the laws of 1997, are amended to read as follows:
33 2. Harness racing associations or corporations subject to a written
34 agreement with such association's or corporation's representative
35 horsemen's association and off-track betting facilities are hereby
36 authorized to accept wagers and display the signal of [up to five] out-
37 of-state harness tracks provided that [no such signals may be displayed
38 prior to 6:00 post meridian without such track's and the operating
39 thoroughbred track's written approval and]:
40 a. the payments to the out-of-state track for accepting wagers and
41 displaying the live simulcast signals of these races shall not exceed
42 two percent of total handle for facilities licensed in accordance with
43 section one thousand eight and one thousand nine of this chapter and
44 three percent of total handle for those facilities licensed in accord-
45 ance with section one thousand seven of this chapter.
46 b. all off-track betting branches are permitted to accept such wagers
47 and that all simulcast facilities licensed in accordance with sections
48 one thousand eight and one thousand nine of this article are permitted
49 to display the live simulcast signal under the same terms and conditions
50 as facilities licensed in accordance with section one thousand seven of
51 this article;
52 c. on any day on which a harness track is conducting a racing program,
53 it shall offer its signal to all off-track betting facilities authorized
54 to receive such signals under terms and conditions no less favorable
55 than those in effect on March thirty-first, nineteen hundred ninety-
56 three; and that in addition to any out-of-state simulcasting program,
S. 1409 38 A. 2109
1 the track shall accept wagers and display the signal from at least one
2 in-state harness track;
3 d. on any day on which a harness association or corporation is not
4 conducting a racing program, it shall accept the signal from not fewer
5 than two in-state harness tracks conducting a program except this
6 requirement may be waived by the written consent of those harness tracks
7 conducting the race meeting;
8 e. every off-track betting branch office and simulcast facility
9 licensed in accordance with sections one thousand eight and one thousand
10 nine of this article, as a condition to accepting out-of-state wagers
11 and displaying the live simulcast signal of such races, shall accept
12 wagers and display the simulcast signal of its regional harness track at
13 all locations at which out-of-state wagers are accepted or the signal
14 displayed. If the regional harness [tack] track is not conducting a race
15 meeting but another harness association in the state is conducting a
16 meeting, the off-track betting facilities as a condition of accepting
17 out-of-state wagers shall accept wagers and display the signal from at
18 least one in-state harness track;
19 f. [no harness track shall accept wagers or display the simulcast
20 signal from an out-of-state harness track on more than four days in any
21 week unless in the immediately preceding calendar month an average of
22 four or more live racing programs per week were conducted, nor shall it
23 accept wagers on more than five days in any week unless in the imme-
24 diately preceding calendar month an average of five or more live harness
25 racing programs per week were conducted at such track;
26 g. for purposes of this subdivision, a "live harness racing program"
27 shall mean a program consisting of not fewer than nine live harness
28 races. The provisions of this subdivision shall not be applicable if the
29 reduction in racing dates results from either weather conditions or the
30 lack of available horses at such licensed harness track in accordance
31 with a certification attesting to such horse shortage by the licensed
32 harness track's horsemen's organization or association. Exemptions to
33 this provision shall be approved by the racing and wagering board upon a
34 request by the affected track;
35 h.] No off-track betting facility shall accept wagers or display the
36 simulcast signal from an out-of-state harness track without an agreement
37 with the regional track, provided, however, that off-track betting
38 facilities shall have the right to display any simulcast signal
39 displayed by a regional harness track and any such agreement shall not
40 unreasonably be withheld.
41 3. Any facility authorized to accept wagers on out-of-state tracks
42 shall distribute all sums deposited in any pari-mutuel pool to the hold-
43 ers of any tickets therein provided such tickets are presented for
44 payment prior to April first of the year following the year of their
45 purchase less nineteen per centum of total deposits in pools resulting
46 from regular bets, less twenty-one per centum of total deposits of pools
47 resulting from multiple bets, less twenty-seven per centum of total
48 deposits of pools resulting from exotic bets, less thirty-six per centum
49 of total deposits of pools resulting from super exotic bets plus the
50 breaks as defined in section three hundred eighteen of this chapter
51 except that the retention rates and breaks shall be as prescribed by
52 another state or country if such wagers are combined with those in the
53 other state or country pursuant to section nine hundred seven of this
54 chapter.
55 a. Distribution of retained commissions for all licensed harness
56 tracks shall be in accordance with article three of this chapter.
S. 1409 39 A. 2109
1 b. For off-track betting facilities, (1) of the sums so retained, the
2 applicable tax rate shall be one percent of all such wagers;
3 (2) of the sum so retained, one percent of all wagers shall be paid to
4 the New York state agricultural and horse breeding and development fund;
5 (3) of the sum so retained, five percent shall be paid to the regional
6 licensed harness track to be distributed in the same manner as though
7 such payments were on races conducted at such track;
8 (4) of the sum so retained, an additional one percent of all wagers
9 shall be paid to the regional licensed harness track for the purpose of
10 increasing purses.
11 c. In those regions in which there is more than one regional licensed
12 harness track, the payments required under subparagraphs three and four
13 of paragraph b of this subdivision shall be made to the regional track
14 conducting a meet on the day out-of-state simulcasting occurs. If either
15 no track is conducting a meet, or more than one track is conducting a
16 meet, the distribution shall be made in the proportion that each track's
17 handle bore to the total regional licensed harness track handle during
18 the preceding calendar month or in accordance with a contractual agree-
19 ment between the regional tracks and the off-track betting corporation.
20 d. For wagers placed at an off-track betting facility in that portion
21 of the western region located with a thoroughbred special betting
22 district, but not included in a harness special betting district, one
23 and one-half per centum of such wagers shall be paid to the racing asso-
24 ciation located in such district provided such association is neither
25 accepting wagers nor simulcasting out-of-state harness races. Any
26 payments required by this subdivision shall reduce payments required to
27 be made to the regional licensed harness track under the provisions of
28 subparagraph three of paragraph b of this subdivision.
29 e. Any thoroughbred racing association or corporation or non-profit
30 racing association or harness racing association or corporation or off-
31 track betting corporation authorized pursuant to this section shall pay
32 to the racing and wagering board as a regulatory fee, which fee is here-
33 by levied, one-half of one percent of all wagering pools.
34 4. The provisions of section five hundred thirty-two of this chapter
35 shall apply as follows:
36 a. for all wagers placed at facilities licensed to receive such [out-
37 ot-state] out-of-state simulcasts in accordance with section one thou-
38 sand eight of this article, distribution shall first be made in accord-
39 ance with subdivision three-a, and then fifty percent of the remaining
40 amount in accordance with paragraph a of subdivision three of section
41 five hundred thirty-two of this chapter and the other fifty percent
42 shall be retained by such operator for its general purpose.
43 b. for wagers placed at off-track betting branch offices on out-of-
44 state tracks where such simulcasting is not conducted, in accordance
45 with section five hundred thirty-two of this chapter.
46 c. upon application of any facility licensed in accordance with
47 sections one thousand seven and one thousand nine of this article, the
48 board shall authorize the imposition of a sum equal to the amount
49 authorized by section five hundred thirty-two of this chapter which
50 shall apply to wagers placed at such facility [except those events
51 described as special events]. Such sums received by facilities licensed
52 in accordance with section one thousand nine of this article shall be
53 retained for the general purpose of the corporation. Such sums received
54 by such facilities licensed in accordance with section one thousand
55 seven of this article shall be distributed as follows:
S. 1409 40 A. 2109
1 (1) fifty percent shall be used exclusively for purses awarded in
2 races conducted by such licensed facility; and
3 (2) fifty percent shall be retained by such licensed facility for its
4 general purposes.
5 § 23. Subdivision 1 of section 1017 of the racing, pari-mutuel wager-
6 ing and breeding law, as added by chapter 445 of the laws of 1997, the
7 opening paragraph as amended by chapter 113 of the laws of 2002, subpar-
8 agraphs 4 and 6 of paragraph b as amended by chapter 94 of the laws of
9 2001 and clause (F) of subparagraph 5 of paragraph b as amended by chap-
10 ter 484 of the laws of 2000, is amended to read as follows:
11 1. The provisions of this section shall govern the simulcasting of
12 races conducted at thoroughbred tracks located in another state or coun-
13 try on any day during which a non-profit racing association is not
14 conducting a race meeting in Saratoga county at Saratoga thoroughbred
15 racetrack until June thirtieth, two thousand seven. Every off-track
16 betting corporation branch office and every simulcasting facility
17 licensed in accordance with section one thousand seven that have entered
18 into a written agreement with such facility's representative horsemen's
19 organization as approved by the board, one thousand eight or one thou-
20 sand nine of this article shall be authorized to accept wagers and
21 display the live full-card simulcast signal[, except as provided in
22 clause (D) of subparagraph four and clause (E) of subparagraph six of
23 paragraph b of this subdivision, from up to two] of thoroughbred tracks
24 (which may include quarter horse or mixed meetings provided that all
25 such wagering on such races shall be construed to be thoroughbred races)
26 located in another state or foreign country [except that during the
27 period from January fifteenth, two thousand two through April fifteenth,
28 two thousand two, from January fifteenth, two thousand three through
29 April fifteenth, two thousand three, and from January fifteenth, two
30 thousand four through April fifteenth, two thousand four, simulcasting
31 shall be authorized from up to three thoroughbred tracks located in
32 another state or foreign country], subject to the following provisions;
33 provided, however, no such written agreement shall be required of a
34 non-profit racing association licensed in accordance with section one
35 thousand seven of this article:
36 a. Each off-track betting branch office accepting wagers on an out-of-
37 state track shall accept wagers on races run at all in-state thorough-
38 bred tracks which are conducting racing programs and every simulcasting
39 facility licensed in accordance with sections one thousand eight and one
40 thousand nine of this article which is accepting wagers and displaying
41 the simulcast signal from an out-of-state track shall similarly accept
42 wagers and display the signal from all in-state thoroughbred tracks
43 conducting racing programs.
44 b. Any facility authorized to accept wagers on out-of-state tracks
45 shall distribute all sums deposited in any pari-mutuel pool to the hold-
46 ers of winning tickets therein, provided such tickets are presented for
47 payment prior to April first of the year following the year of their
48 purchase less eighteen per centum of the total deposits in pools result-
49 ing from regular bets, less twenty-one per centum of the total deposits
50 in pools resulting from multiple bets, less twenty-six per centum of the
51 total deposits in pools resulting from exotic bets, and less twenty-sev-
52 en per centum of the total deposits in pools resulting from super exotic
53 bets, plus the breaks as defined in section two hundred twenty-eight of
54 this chapter except that the retention rates and breaks shall be as
55 prescribed by another state or country if such wagers are combined with
S. 1409 41 A. 2109
1 those in the other state or country pursuant to section nine hundred
2 seven of this chapter.
3 (1) Of the sums so retained, the applicable tax rates shall be as
4 governed by clauses (A) and (B) of subparagraphs [(3), (4), (5) and (6)]
5 three, four, five and six of paragraph b of this subdivision plus fifty
6 percent of the breaks; provided, however, fifty percent of the breaks
7 accruing from off-track betting corporations licensed in accordance with
8 section one thousand eight of this article and from simulcast theaters
9 licensed in accordance with section one thousand nine of this article,
10 shall be paid to the agriculture and New York State horse breeding and
11 development fund and to the thoroughbred breeding and development fund,
12 the total of such payments to be apportioned fifty per centum to each
13 such fund.
14 (2) (A) Of the sums so retained, one-half of one per centum of all
15 wagers shall be paid to the New York State thoroughbred breeding and
16 development fund, except that of the sums so retained on such wagers at
17 licensed harness tracks, one-half of one per centum shall be paid to the
18 agricultural and New York State horse breeding and development fund.
19 (B) Any harness racing or association or corporation, non-profit
20 racing association or thoroughbred racing association or corporation
21 authorized pursuant to this section shall pay to the racing and wagering
22 board as a regulatory fee, which fee is hereby levied, one-half of one
23 percent of the total daily pari-mutuel pools.
24 (3) Distribution of wagers placed on the initial out-of-state
25 thoroughbred track at facilities licensed in accordance with sections
26 [1008] one thousand eight and [1009] one thousand nine of this [chapter]
27 article.
28 (A) Of the sums so retained on days when a non-profit racing associ-
29 ation is not conducting a race meeting within the state and a thorough-
30 bred racing association or corporation is conducting a race meeting
31 Super-
32 Regular Multiple Exotic exotic
33 bets bets bets bets
34 State Tax 1.50 1.50 1.50 1.50
35 Thoroughbred Racing association 0.50 0.50 0.50 0.50
36 or corporation
37 Thoroughbred Racing association 1.50 2.00 1.50 2.00
38 or corporation payments to purses
39 Nonprofit racing association 0.50 0.50 0.50 0.50
40 Nonprofit racing association 2.00 2.00 2.50 4.00
41 payments to purses
42 (B) Of the sums so retained on days when a non-profit racing associ-
43 ation is conducting a race meeting within the state
44 Super-
45 Regular Multiple Exotic exotic
46 bets bets bets bets
47 State Tax 1.00 1.00 1.00 1.00
48 Thoroughbred Racing association 0.50 0.50 0.50 0.00
S. 1409 42 A. 2109
1 or corporation
2 Thoroughbred Racing association 0.50 0.50 0.50 0.50
3 or corporation payments to purses
4 Nonprofit racing association 2.00 1.50 1.50 2.00
5 Nonprofit racing association 2.00 3.00 3.00 5.00
6 payments to purses
7 (C) Payments to purses as required under (A) and (B) of this subpara-
8 graph shall be paid to the thoroughbred racing association or corpo-
9 ration or to the non-profit racing association to be used exclusively
10 for the purpose of increasing purses, including stakes, premiums and
11 prizes.
12 (4) Distribution of wagers placed on [the second and third] other than
13 the initial out-of-state thoroughbred track at facilities licensed in
14 accordance with sections [1008] one thousand eight and [1009] one thou-
15 sand nine of this [chapter] article.
16 (A) Of the sums so retained on days when a non-profit racing associ-
17 ation is not conducting a race meeting within the state and a thorough-
18 bred racing association or corporation is conducting a race meeting
19 Super-
20 Regular Multiple Exotic exotic
21 bets bets bets bets
22 State Tax 1.00 1.00 1.00 1.00
23 Thoroughbred Racing association 2.00 2.00 2.00 2.50
24 or corporation payments to purses
25 Nonprofit racing association 1.00 1.00 1.00 1.00
26 Nonprofit racing association 2.00 2.00 2.50 4.00
27 payments to purses
28 [The state tax on such third out-of-state track shall be .25 per
29 centum of all wagers.]
30 (B) Of the sums so retained on days when a non-profit racing associ-
31 ation is conducting a race meeting within the state
32 Super-
33 Regular Multiple Exotic exotic
34 bets bets bets bets
35 State Tax 0.50 0.50 0.50 0.50
36 Thoroughbred racing association 0.50 0.25 0.50 0.50
37 or corporation
38 Thoroughbred racing association 0.50 0.25 0.50 0.50
39 or corporation payments to purses
40 Nonprofit racing association 2.25 2.25 2.00 2.50
41 Nonprofit racing association 2.25 3.25 3.00 4.50
42 payments to purses
S. 1409 43 A. 2109
1 [The state tax on such third out-of-state track shall be .25 per
2 centum of all wagers.]
3 (C) Payments to purses as required under (A) and (B) of this subpara-
4 graph shall be paid to the thoroughbred racing association or corpo-
5 ration or to the non-profit racing association to be used exclusively
6 for the purpose of increasing purses, including stakes, premiums and
7 prizes.
8 (D) On days when no thoroughbred track is conducting a race meeting,
9 facilities licensed in accordance with sections [1008] one thousand
10 eight and [1009] one thousand nine of this [chapter] article are author-
11 ized to accept the simulcast signal from more than two out-of-state
12 thoroughbred tracks. The distribution of wagers on such out-of-state
13 thoroughbred track or tracks shall be in accordance with clause (B) of
14 this subparagraph.
15 (5) Distribution of wagers placed on the initial out-of-state
16 thoroughbred track at facilities licensed in accordance with section
17 [1007] one thousand seven of this [chapter] article.
18 (A) Of the sums so retained on days when a non-profit racing associ-
19 ation is not conducting a race meeting within the state and a thorough-
20 bred racing association or corporation is conducting a race meeting
21 Super-
22 Regular Multiple Exotic exotic
23 bets bets bets bets
24 State Tax 1.50 1.50 1.50 1.50
25 Thoroughbred racing association 0.25 0.25 0.25 0.50
26 or corporation
27 Thoroughbred racing association 0.75 1.00 0.75 1.00
28 or corporation payments to purses
29 Nonprofit racing association 0.25 0.25 0.25 0.25
30 Nonprofit racing association 1.00 1.00 2.25 2.00
31 payments to purses
32 (B) Of the sums so retained on days when a non-profit racing associ-
33 ation is conducting a race meeting within the state
34 Super-
35 Regular Multiple Exotic exotic
36 bets bets bets bets
37 State Tax 1.00 1.00 1.00 1.00
38 Thoroughbred racing association 0.25 0.25 0.25 0.25
39 or corporation
40 Thoroughbred racing association 0.25 0.25 0.25 0.25
41 or corporation payments to purses
42 Nonprofit racing association 1.00 0.75 0.75 1.00
43 Nonprofit racing association 1.00 1.50 1.50 2.50
44 payments to purses
S. 1409 44 A. 2109
1 (C) Payments to purses as required under (A) and (B) of this subpara-
2 graph shall be paid to the thoroughbred racing association or corpo-
3 ration or to the non-profit racing association to be used exclusively
4 for the purpose of increasing purses, including stakes, premiums and
5 prizes.
6 (D) For wagers placed at a non-profit racing association or a
7 thoroughbred racing association or corporation the state tax shall be
8 the amounts specified in (A) and (B) of this subparagraph and retention
9 thereafter shall be identical to sums retained for each type of on-track
10 wager.
11 (E) On days when a non-profit racing association is not conducting a
12 race meeting and when a licensed harness track is neither accepting
13 wagers nor displaying the signal from an in-state thoroughbred corpo-
14 ration or association or an out-of-state thoroughbred track:
15 (i) Such licensed regional harness track shall receive in lieu of any
16 other payments on wagers placed at off-track betting facilities outside
17 the special betting district on races conducted by an in-state thorough-
18 bred racing corporation, two and eight-tenths percent on regular and
19 multiple bets during a regional meeting and one and nine-tenths percent
20 of such bets if there is no regional meeting and four and eight-tenths
21 percent on exotic bets on days on which there is a regional meeting and
22 three and four-tenths percent of such bets if there is no regional meet-
23 ing.
24 (ii) Such licensed regional harness track shall receive one and one-
25 half per centum on total regional handle on races conducted at out-of-
26 state or out-of-country thoroughbred tracks.
27 (iii) In those regions in which there is more than one licensed
28 regional harness track, if no track is accepting wagers or displaying
29 the live simulcast signal from the out-of-state track, the total sum
30 shall be divided among the tracks in proportion to the ratio the wagers
31 placed on races conducted by each track bears to the corporation's total
32 in-region harness handle. If one or more tracks are accepting wagers or
33 displaying the live simulcast signal, the total amount shall be divided
34 among those tracks not accepting wagers or displaying the simulcast
35 signal for an out-of-state track or in-state thoroughbred corporation or
36 association.
37 (F) Of the sums retained by a licensed harness facility, fifty percent
38 shall be used exclusively for purses awarded in races conducted by such
39 licensed facility and the remaining fifty percent shall be retained by
40 such licensed facility for its general purposes, provided, however, that
41 in a harness special betting district the portion of the sums retained
42 by a licensed harness facility to be used for purses or the methodology
43 for calculating the amount to be used for purses may be specified in a
44 written contract between a harness racing association or corporation and
45 its representative horsemen's association.
46 (6) Distribution of wagers placed on [the second and third] other than
47 the initial out-of-state thoroughbred track at facilities licensed in
48 accordance with section [1007] one thousand seven of this [chapter]
49 article.
50 (A) Of the sums so retained on days when a non-profit racing associ-
51 ation is not conducting a race meeting within the state and a thorough-
52 bred racing association or corporation is conducting a race meeting
53 Super-
54 Regular Multiple Exotic exotic
55 bets bets bets bets
S. 1409 45 A. 2109
1 State Tax 1.00 1.00 1.00 1.00
2 Thoroughbred Racing association 1.00 1.00 1.00 1.25
3 or corporation payments to purses
4 Nonprofit racing association 0.50 0.50 0.50 0.50
5 Nonprofit racing association 1.00 1.00 1.25 2.00
6 payments to purses
7 [The state tax on such third out-of-state track shall be .25 per
8 centum of all wagers.]
9 (B) Of the sums so retained on days when a non-profit racing associ-
10 ation is conducting a race meeting within the state
11 Super-
12 Regular Multiple Exotic exotic
13 bets bets bets bets
14 State Tax 0.50 0.50 0.50 0.50
15 Thoroughbred Racing association 0.25 0.25 0.25 0.25
16 or corporation
17 Thoroughbred Racing association 0.25 0.25 0.25 0.25
18 or corporation payments to purses
19 Nonprofit racing association 1.25 1.25 1.00 1.25
20 Nonprofit racing association 1.25 2.00 1.50 2.25
21 payments to purses
22 [The state tax on such third out-of-state track shall be .25 per
23 centum of all wagers.]
24 (C) Payments to purses as required under (A) and (B) of this subpara-
25 graph shall be paid to the thoroughbred racing association or corpo-
26 ration or to the non-profit racing association to be used exclusively
27 for the purpose of increasing purses, including stakes, premiums and
28 prizes.
29 (D) For wagers placed at a non-profit racing association or a
30 thoroughbred racing association or corporation the state tax shall be
31 the amounts specified in (A) and (B) of this subparagraph and retention
32 thereafter shall be identical to sums retained for each type of on-track
33 wager.
34 (E) On days when no thoroughbred track is conducting a race meeting,
35 facilities licensed in accordance with section [1007] one thousand seven
36 of this [chapter] article are authorized to accept the simulcast signal
37 from [more than two] out-of-state thoroughbred tracks. The distribution
38 of wagers on such out-of-state thoroughbred track or tracks shall be in
39 accordance with clause (B) of this subparagraph.
40 (F) On days when a non-profit racing association is not conducting a
41 race meeting and when a licensed harness track is neither accepting
42 wagers nor displaying the signal from an in-state thoroughbred corpo-
43 ration or association or an out-of-state thoroughbred track:
44 (i) Such licensed regional harness track shall receive in lieu of any
45 other payments on wagers placed at off-track betting facilities outside
46 the special betting district on races conducted by an in-state thorough-
S. 1409 46 A. 2109
1 bred racing corporation, two and eight-tenths percent on regular and
2 multiple bets during a regional meeting and one and nine-tenths percent
3 of such bets if there is no regional meeting and four and eight-tenths
4 percent on exotic bets on days on which there is a regional meeting and
5 three and four-tenths percent of such bets if there is no regional meet-
6 ing.
7 (ii) Such licensed regional harness track shall receive one and one-
8 half per centum on total regional handle on races conducted at out-of-
9 state or out-of-country thoroughbred tracks.
10 (iii) In those regions in which there is more than one licensed
11 regional harness track, if no track is accepting wagers or displaying
12 the live simulcast signal from the out-of-state track, the total sum
13 shall be divided among the tracks in proportion to the ratio the wagers
14 placed on races conducted by each track bears to the corporation's total
15 in-region harness handle. If one or more tracks are accepting wagers or
16 displaying the live simulcast signal, the total amount shall be divided
17 among those tracks not accepting wagers or displaying the simulcast
18 signal for an out-of-state track or in-state thoroughbred corporation or
19 association.
20 (G) Of the sums retained by a licensed harness facility, fifty percent
21 shall be used exclusively for purses awarded in races conducted by such
22 licensed facility and the remaining fifty percent shall be retained by
23 such licensed facility for its general purposes, provided, however, that
24 in a harness special betting district the portion of the sums retained
25 by a licensed harness facility to be used for purses or the methodology
26 for calculating the amount to be used for purses may be specified in a
27 written contract between a harness racing association or corporation and
28 its representative horsemen's association.
29 c. (1) All wagers authorized by this section shall be combined so as
30 to produce common pari-mutuel betting pools, which shall be combined
31 with the sending track, for the calculation of odds and the determi-
32 nation of payouts from such pools, which payouts shall be made pursuant
33 to the rules of the board. Every location authorized to accept wagers or
34 display simulcasting pursuant to this section shall be subject to all
35 appropriate provisions of this chapter.
36 (2) Every regional off-track betting corporation may simulcast all
37 out-of-state races authorized by this section at any licensed simulcast
38 facility except for those facilities located in a thoroughbred special
39 betting district. Facilities located in such special betting district
40 may display the simulcast signal with the permission of the thoroughbred
41 track located in such district or if such track displays the signal from
42 an out-of-state or out-of-country track.
43 d. The provisions of section five hundred thirty-two of this chapter
44 shall apply as follows:
45 (1) for all wagers placed at facilities licensed to receive such out-
46 of-state or out-of-country simulcasts in accordance with section one
47 thousand eight of this article, distribution shall first be made in
48 accordance with subdivision three-a of section five hundred thirty-two
49 of this chapter, and then fifty percent of the remaining amount in
50 accordance with paragraph a of subdivision three of section five hundred
51 thirty-two of this chapter and the other fifty percent shall be retained
52 by such operator for its general purpose.
53 (2) upon application of any facility licensed in accordance with
54 sections one thousand seven and one thousand nine of this article, the
55 board shall authorize the imposition of a sum equal to the amount
56 authorized by section five hundred thirty-two of this chapter which
S. 1409 47 A. 2109
1 shall apply to wagers placed at such facility [except those events
2 described as special events]. Such sums received by facilities licensed
3 in accordance with section one thousand nine of this article shall be
4 retained for the general purpose of the corporation. Such sums received
5 by such facilities licensed in accordance with section one thousand
6 seven of this article shall be distributed as follows:
7 (A) fifty percent shall be used exclusively for purses awarded in
8 races conducted by such licensed facility; and
9 (B) fifty percent shall be retained by such licensed facility for its
10 general purposes.
11 e. Nothing in this section shall be construed to prohibit the accept-
12 ance of wagers on races conducted at out-of-state tracks without the
13 display of the live simulcast signal if authorized under any other
14 provision of this chapter.
15 § 24. Section 1017-a of the racing, pari-mutuel wagering and breeding
16 law, as amended by chapter 94 of the laws of 2001, is amended to read as
17 follows:
18 § 1017-a. Out-of-state or out-of-country races. [1. All licensed]
19 Licensed simulcast facilities may accept wagers and display the signal
20 of out-of-state or out-of-country thoroughbred tracks [following the
21 conclusion of a regularly scheduled race program conducted by a non-pro-
22 fit racing association or a thoroughbred racing association or corpo-
23 ration until] after 7:30 P.M.[, and after 11:59 P.M. but prior to the
24 commencement of an in-state thoroughbred track's next calendar day race
25 program] in accordance with the provisions of this section. [Upon
26 approval from the board, if a non-profit racing association is not
27 conducting a race program, such simulcasting shall commence at the
28 approximate time such association's regularly scheduled race program
29 concludes. Any such out-of-state or out-of-country signal and wagers
30 shall not be accepted past 7:30 P.M. and before 11:59 P.M.] Such simul-
31 casting may include mixed meetings if such meetings are integral to such
32 racing programs and all such wagering on such races shall be construed
33 to be thoroughbred races. For facilities located within the special
34 betting district, such approval shall also be required from a thorough-
35 bred racing association or corporation during the period a racing
36 program is being conducted at such track. Such approval shall not be
37 required on any day such thoroughbred racing association or corporation
38 is also accepting an out-of-state or out-of-country signal and wager, as
39 authorized by this section. The provisions of section one thousand
40 seventeen of this article shall be applicable to the conduct of such
41 simulcasting and the provisions of clauses (A) and (B) of subparagraph
42 four of paragraph b of subdivision one of section [ten hundred] one
43 thousand seventeen of this article shall apply to those facilities
44 licensed in accordance with sections [ten hundred] one thousand eight
45 and [ten hundred] one thousand nine of this article and the provisions
46 of clauses (A) and (B) of subparagraph (6) of paragraph b of subdivision
47 one of section [ten hundred] one thousand seventeen of this article
48 shall apply to those facilities licensed in accordance with section [ten
49 hundred] one thousand seven of this article, when such provisions are in
50 full force and effect pursuant to such section. Provided, however, the
51 provisions of section [ten hundred] one thousand fifteen of this article
52 shall be applicable to the conduct of such simulcasting, when such
53 provisions are in full force and effect pursuant to such section.
54 [2. For the period commencing September fourth, two thousand one
55 through June thirtieth, two thousand four on any day on which a nonpro-
56 fit racing association conducting racing at Belmont Park schedules a
S. 1409 48 A. 2109
1 racing program which commences later than one-thirty post meridian, the
2 simulcasting program authorized by subdivision one of this section shall
3 commence at five-thirty post meridian and will be limited to the accept-
4 ance of wages and displaying the signal of one out-of-state or out-of-
5 country thoroughbred track.]
6 § 25. The opening paragraph and subdivision 2 of section 1017-b of the
7 racing, pari-mutuel wagering and breeding law, as added by chapter 94 of
8 the laws of 2001, are amended to read as follows:
9 Notwithstanding any other provision of this chapter, for the period
10 July twenty-fifth, two thousand one through September first, two thou-
11 sand three, when a nonprofit racing association is conducting a race
12 meeting within the state at Saratoga Race Course, every off-track
13 betting corporation branch office and every simulcasting facility
14 licensed in accordance with section one thousand seven (that has entered
15 into a written agreement with such facility's representative horsemen's
16 organization as approved by the board), one thousand eight or one thou-
17 sand nine of this article shall be authorized to accept wagers and
18 display the live simulcast signal from [no more than two] thoroughbred
19 tracks located in another state, provided that such facility shall
20 accept wagers on races run at all in-state thoroughbred tracks which are
21 conducting racing programs subject to the following provisions;
22 provided, however, no such written agreement shall be required of a
23 nonprofit racing association licensed in accordance with section one
24 thousand seven of this article.
25 2. a. Of the sums so retained, one-half of one per centum of all
26 wagers shall be paid to the New York state thoroughbred breeding and
27 development fund, except that of the sums so retained on such wagers at
28 licensed harness tracks, one-half of one per centum shall be paid to the
29 agriculture and New York state horse breeding and development fund.
30 b. Any thoroughbred racing association or corporation or non-profit
31 racing association or harness racing association or corporation or off-
32 track betting corporation shall pay to the racing and wagering board as
33 a regulatory fee, which fee is hereby levied, one-half of one percent of
34 all wagering pools.
35 § 26. The state finance law is amended by adding a new section 99-i to
36 read as follows:
37 § 99-i. Racing regulation account. 1. There is hereby established in
38 the joint custody of the comptroller and the racing and wagering board a
39 special revenue fund to be known as the "racing regulation account".
40 2. The racing revenue account shall consist of all money received by
41 the board as regulatory fees pursuant to the provisions of the racing,
42 pari-mutuel wagering and breeding law.
43 3. Moneys of this account shall be available to the board to pay for
44 the costs of carrying out the purposes of the racing, pari-mutuel wager-
45 ing and breeding law.
46 4. All payments from the fund shall be made on the audit and warrant
47 of the comptroller.
48 § 27. This act shall take effect immediately.
49 PART J
50 Section 1. Paragraph (d) of subdivision 2 of section 18-a of the
51 public service law, as amended by chapter 15 of the laws of 1983, is
52 amended to read as follows:
53 (d) The amount of such bill for fiscal years beginning on or after
54 April first, nineteen hundred eighty-three so rendered shall be paid by
S. 1409 49 A. 2109
1 such public utility company to the department on or before April first;
2 provided, however, that a utility company may elect to make partial
3 payments for such costs and expenses on March tenth of the preceding
4 fiscal year and on [June tenth,] September tenth[, and December tenth]
5 of such fiscal year. Provided further, however, that [the] for the
6 fiscal year beginning April two thousand three payment will be due March
7 tenth, [nineteen hundred eighty-three for the fiscal year beginning
8 April first, nineteen hundred eighty-three shall not be required to be
9 paid until] two thousand three at twenty-five percentum; June tenth,
10 [nineteen hundred eighty-three. Each] two thousand three at twenty-five
11 percentum; and September tenth, two thousand three at fifty percentum.
12 Thereafter, each such partial payment shall be a sum equal to [twenty-
13 five] fifty percentum of the estimate of costs and expenses to be
14 assessed against such utility company under the provisions of this
15 subdivision and shall not be less than ten dollars.
16 § 2. Subdivision 11 of section 92-c of the public service law, as
17 amended by chapter 730 of the laws of 1994, is amended to read as
18 follows:
19 11. A fee of twenty-five cents per month per access line assigned to a
20 COCOT is hereby imposed upon each and every COCOT. The local exchange
21 company shall, act as a collection agent for such fees, and remit the
22 funds collected to the department no later than the fifteenth of each
23 and every month. The department shall deposit the funds as soon as
24 received in the [COCOT enforcement fund established pursuant to section
25 ninety-two-w of the state finance law] state treasury to the credit of
26 the general fund.
27 § 3. Paragraph c of subdivision 1 of section 765 of the general busi-
28 ness law, as amended by chapter 522 of the laws of 2000, is amended to
29 read as follows:
30 c. An action to recover a penalty under this article may be brought in
31 the supreme court in the judicial district in which the violation was
32 alleged to have occurred which shall be commenced and prosecuted by the
33 attorney general. The public service commission shall, pursuant to
34 section one hundred nineteen-b of the public service law, forward to the
35 attorney general its determination of the amount of the penalty for
36 violations of rules and regulations adopted to implement the require-
37 ments of this article. Upon receipt of such determination, the attorney
38 general may commence an action to recover such penalty. All moneys
39 recovered in any such action, together with the costs thereof, and all
40 moneys recovered as the result of any such public service commission
41 determination shall be paid into the [underground facilities safety
42 training account established pursuant to section ninety-seven-www of the
43 state finance law] state treasury to the credit of the general fund.
44 § 4. Section 92-w of the state finance law, as amended by chapter 730
45 of the laws of 1994, is REPEALED.
46 § 5. Section 97-www of the state finance law, as added by chapter 522
47 of the laws of 2000, is REPEALED.
48 § 6. This act shall take effect on April 1, 2003; provided, however,
49 that if this act shall become a law after such date, it shall take
50 effect immediately and be deemed to have been in full force and effect
51 on and after April 1, 2003; and provided, further that the amendments to
52 paragraph c of subdivision 1 of section 765 of the general business law
53 made by section three of this act shall not affect the expiration of
54 such paragraph and shall expire and be deemed repealed therewith.
REPEAL NOTE.--Section 92-w of the state finance law, as amended by
chapter 730 of the laws of 1994, establishes the customer owned currency
S. 1409 50 A. 2109
operated telephone enforcement fund. Moneys from the fund are available
for payment of costs and expenditures incurred in the enforcement of
section 92-c of the public service law.
Section 97-www, as added by chapter 522 of the laws of 2000, estab-
lishes the underground facilities safety training account. Moneys from
the account are available for training and education programs, regarding
requirements and procedures for the protection of underground facili-
ties, conducted by certified one-call notification systems.
1 PART K
2 Section 1. Section 16 of the agriculture and markets law is amended by
3 adding a new subdivision 25-b to read as follows:
4 25-b. Require and receive the payment of a fee of fifty dollars for
5 the issuance of certificates of compliance with the food related
6 provisions of this chapter and the regulations promulgated pursuant
7 thereto. Notwithstanding any other provision of law to the contrary, the
8 commissioner is hereby authorized and directed to deposit all money
9 received pursuant to this subdivision in an account within the miscella-
10 neous special revenue fund.
11 § 2. Section 96-b of the agriculture and markets law, as amended by
12 chapter 573 of the laws of 2002, is amended to read as follows:
13 § 96-b. License required. No person, firm, partnership or corporation
14 not granted inspection pursuant to the federal meat inspection act, the
15 federal poultry products inspection act, article five-B or article
16 five-D of this chapter shall operate any place or establishment where
17 animals or fowls are slaughtered or butchered for food unless such
18 person, firm, partnership or corporation be licensed by the commission-
19 er. In addition to any other requirements established by the commission-
20 er, such license shall prohibit the slaughter or butchering by slaught-
21 erhouses of domesticated dog and domesticated cat to create food, meat,
22 meat by-products or meat food products for human or animal consumption.
23 An application for license shall be made upon a form prescribed by the
24 commissioner on or before the first day of May in every other year, for
25 a two year license period commencing upon the following first day of
26 June. With the application there shall be paid a license fee of [twenty]
27 two hundred dollars.
28 § 3. Subdivision 1 of section 129 of the agriculture and markets law,
29 as added by chapter 816 of the laws of 1974, is amended to read as
30 follows:
31 1. No person shall manufacture or hold in any facility within this
32 state any commercial feed [in this state] for sale or distribution
33 unless [the facility where such feed is manufactured has been] he or she
34 is registered pursuant to the provisions of this section. [Such regis-
35 tration once approved shall be permanent unless revoked pursuant to the
36 provisions of this section.] The biennial registration fee shall be one
37 hundred dollars. Application, upon a form prescribed by the commission-
38 er, shall be made on or before June first of every other year for the
39 registration period beginning July first following.
40 § 4. Section 135 of the agriculture and markets law, as added by chap-
41 ter 816 of the laws of 1974, is amended to read as follows:
42 § 135. Rules and regulations. The commissioner is hereby authorized,
43 after public hearing, to adopt and promulgate such rules and regulations
44 to supplement and give full effect to the provisions of this article as
45 he may deem necessary, provided, that the commissioner may adopt and
46 promulgate, insofar as appropriate, without public hearing, any rules
S. 1409 51 A. 2109
1 and regulations promulgated under any federal act or acts or change or
2 amend the regulations promulgated hereunder so as to conform, insofar as
3 appropriate, to those promulgated under such federal act or acts. The
4 commissioner may, if he or she determines that the protection of the
5 consumers of the state is not impaired by such action, provide by regu-
6 lation for exemption from registration of small feed distributors when
7 he or she finds that such an exemption would avoid unnecessary regu-
8 lation and assist in the administration of the article without impairing
9 such article's purpose.
10 § 5. Section 163-a of the agriculture and markets law, as amended by
11 chapter 233 of the laws of 1995, is amended to read as follows:
12 § 163-a. Application. Any nursery grower or nursery dealer, except
13 those nursery dealers selling, transporting, or handling for sale or
14 otherwise disposing of nursery stock, exclusively consisting of indoor
15 plants, at a retail level, desiring to sell, or selling, or handling for
16 sale, or otherwise disposing of nursery stock in this state shall make
17 application in writing to the commissioner upon a form prescribed by the
18 commissioner. The application shall be made on or before the first day
19 of November[, nineteen hundred ninety-six for nursery growers and the
20 first day of November, nineteen hundred ninety-five for nursery deal-
21 ers,] and every other year thereafter for the [license] registration
22 period beginning in December and shall be accompanied by a fee of
23 [forty] one hundred dollars [for a registration fee as a nursery grower
24 or twenty dollars for a registration fee as a nursery dealer]. The
25 commissioner may exempt from the payment of such fees agencies or
26 authorities of the state; county, city, town, or village governments; or
27 other entities providing benefit to the general public, including but
28 not limited to, botanical gardens.
29 § 6. Subdivision 1 of section 163-b of the agriculture and markets
30 law, as amended by chapter 55 of the laws of 1992, is amended to read as
31 follows:
32 1. The commissioner after a nursery has been found to be apparently
33 free from injurious insects and plant diseases shall register each nurs-
34 ery grower desiring to sell, or selling, or handling for sale, or other-
35 wise disposing of nursery stock in this state in accordance with the
36 intent disclosed in the application and shall issue a certificate, upon
37 a form to be prescribed by the commissioner, declaring that such nursery
38 grower is duly registered and authorized to do business in this state.
39 If such nursery grower is maintaining or operating premises in
40 connection with his or her business in more than one place within the
41 state then he or she shall obtain an additional registration for each
42 place of business [at an additional fee of ten dollars each], provided
43 there shall be no additional fee for such additional registrations.
44 § 7. Section 219 of the agriculture and markets law, as amended by
45 chapter 122 of the laws of 1988, is amended to read as follows:
46 § 219. Application and fee. Application for license as a food salvag-
47 er, upon a form prescribed by the commissioner, shall be made on or
48 before June first in every other year for the license period beginning
49 July first following. The applicant shall satisfy the commissioner of
50 his character and that he has adequate physical facilities for salvaging
51 food and food products. If so satisfied, the commissioner shall upon
52 receipt of the license fee issue to the applicant a license which shall
53 be non-transferable. The biennial license fee shall be [one] two hundred
54 dollars. Where a person operates more than one salvage warehouse a
55 separate license is required for each location.
S. 1409 52 A. 2109
1 § 8. Section 231 of the agriculture and markets law, as amended by
2 chapter 122 of the laws of 1988, is amended to read as follows:
3 § 231. Licenses, issuance of. No person or corporation shall maintain
4 or operate any refrigerated warehouse and/or locker plant unless
5 licensed by the commissioner. Application, upon a form prescribed by
6 the commissioner, shall be made on or before September first of every
7 other year for the license period beginning October first following. The
8 applicant shall satisfy the commissioner of his or its character, finan-
9 cial responsibility, and competency to operate a refrigerated warehouse
10 or locker plant. The commissioner, if so satisfied, shall, upon receipt
11 of the license fee or fees, issue to the applicant a license or licenses
12 to operate the refrigerated warehouse or warehouses or locker plant or
13 locker plants described in the application until the first day of Octo-
14 ber of the year following the year in which such license was issued. The
15 biennial license fee shall be [fifty] two hundred dollars for each
16 refrigerated warehouse[, except that the biennial license fee for a
17 refrigerated warehouse storing fresh fruit and vegetables, or either of
18 them, and no other articles of food, shall be ten dollars]. If a locker
19 plant is operated as part of a refrigerated warehouse and upon the same
20 premises, no additional license fee shall be required.
21 § 9. The agriculture and markets law is amended by adding a new arti-
22 cle 20-B to read as follows:
23 ARTICLE 20-B
24 FOOD SECURITY
25 Section 251-o. Declaration of policy and purpose.
26 251-p. Definitions.
27 251-q. Registration.
28 251-r. Exemptions.
29 251-s. Food establishment preventative measures.
30 251-t. Rules and regulations.
31 § 251-o. Declaration of policy and purpose. The general purposes of
32 this article are to assure food security by requiring the registration
33 of food establishments located within the state and requiring the opera-
34 tors of such establishments to take preventative measures to minimize
35 the risk of food under their control being subjected to tampering or
36 criminal or terrorist actions.
37 § 251-p. Definitions. As used in this article, the following defi-
38 nitions shall apply:
39 1. "Food establishment" shall mean any facility within this state in
40 which food is possessed, stored, manufactured, compounded, brewed,
41 distilled, produced, processed, packed, labeled or relabeled, trans-
42 ported, sold, offered or exposed for sale, or served.
43 2. "Food warehouse" shall mean any food establishment in which food is
44 held for commercial distribution.
45 § 251-q. Registration. No person shall maintain or operate a food
46 establishment unless such establishment is registered pursuant to the
47 provisions of this article, provided, however, that establishments
48 registered, permitted or licensed by the department pursuant to other
49 provisions of this chapter, under permit and inspection by the state
50 department of health or by a local health agency which maintains a
51 program certified and approved by the state commissioner of health, or
52 subject to inspection by the United States department of agriculture
53 pursuant to the federal meat, poultry or egg inspection programs, shall
54 be exempt from registration under this article. Application for regis-
55 tration of a food establishment shall be made, upon a form prescribed by
S. 1409 53 A. 2109
1 the commissioner, on or before December first of every other year for
2 the registration period beginning January first following. Upon
3 submission of a completed application, together with the applicable
4 registration fee, the commissioner shall register the food establishment
5 described in the application for two years from the applicable registra-
6 tion commencement period set forth hereinabove. The registration fee
7 shall be one hundred dollars for all food establishments registered
8 under this article except food warehouses, which establishments shall be
9 subject to a registration fee of two hundred dollars. The commissioner
10 shall prorate the registration fee for any person registering after the
11 commencement of the registration period.
12 Notwithstanding any other provision of law to the contrary, the
13 commissioner is hereby authorized and directed to deposit all money
14 received pursuant to this article in an account within the miscellaneous
15 special revenue fund.
16 § 251-r. Exemptions. The commissioner may, if he or she determines
17 that the protection of the consumers of the state as a whole will not be
18 impaired by such action, provide by regulation for exemption from regis-
19 tration of small food establishments when he or she finds that such an
20 exemption would avoid unnecessary regulation and assist in the adminis-
21 tration of the article without impairing its purposes.
22 § 251-s. Food establishment preventative measures. Each operator of a
23 food establishment shall take such preventative measures as the commis-
24 sioner may require, pursuant to duly promulgated rules and regulations,
25 to minimize the risk of food under such operator's control being
26 subjected to tampering or criminal or terrorist actions.
27 § 251-t. Rules and regulations. The commissioner is hereby authorized
28 and directed, after public hearing, to promulgate and issue rules and
29 regulations, including but not limited to regulations establishing
30 preventative measures to minimize the risk of food being subjected to
31 tampering or criminal or terrorist actions.
32 § 10. This act shall take effect immediately, except that section nine
33 of this act shall take effect on the one hundred eightieth day after it
34 shall have become a law; provided, however, that effective immediately,
35 the addition, amendment and/or repeal of any rule or regulation neces-
36 sary for the implementation of this act on its effective date is author-
37 ized and directed to be made and completed on or before such effective
38 date.
39 PART L
40 Section 1. Paragraph (b) of subdivision 2 of section 2975 of the
41 public authorities law, as amended by chapter 55 of the laws of 1992, is
42 amended to read as follows:
43 (b) On or before [August] November first, [nineteen hundred eighty-
44 nine and on or before August first each year thereafter] two thousand
45 three and on or before November first of each year thereafter, the
46 director of the budget shall [prorate the lesser of: (i) the total
47 amount of the annual expenses determined pursuant to paragraph (a) of
48 this subdivision; or (ii) twenty million dollars annually. Public bene-
49 fit corporations shall be assessed such prorated amounts based upon the
50 proportion of the outstanding debt, consisting of bonds, notes and other
51 obligations of each public benefit corporation, to the total of such
52 debt for such public benefit corporations, as determined by the director
53 of the budget] determine the amount owed under this section by each
54 public benefit corporation. The director of the budget may reduce, in
S. 1409 54 A. 2109
1 whole or part, the amount of such assessment if the payment thereof
2 would necessitate a state appropriation for the purpose, or would other-
3 wise impose an extraordinary hardship upon the affected public benefit
4 corporation. The aggregate amount assessed under this section in any
5 given state fiscal year may not exceed forty million dollars.
6 § 2. Subdivision 3 of section 2975 of the public authorities law, as
7 added by chapter 62 of the laws of 1989, is amended to read as follows:
8 3. The state treasurer shall impose and collect such assessments,
9 which shall be paid no later than [December] March thirty-first follow-
10 ing the imposition of the assessments, and pay the same into the state
11 treasury to the credit of the general fund.
12 § 3. This act shall take effect April 1, 2003.
13 PART M
14 Section 1. Subdivision 3 of section 2251 of the vehicle and traffic
15 law, as added by chapter 484 of the laws of 1985, is amended to read as
16 follows:
17 3. Fees. The triennial fee for registration of a vessel shall be:
18 [nine] eighteen dollars, if less than sixteen feet in length; [eighteen]
19 thirty-six dollars, if sixteen feet or over but less than twenty-six
20 feet in length; [thirty] sixty dollars, if twenty-six feet or over.
21 § 2. This act shall take effect on the ninetieth day after it shall
22 have become a law.
23 PART N
24 Section 1. (a) Subject to the provisions of chapter 59 of the laws of
25 2000, but notwithstanding the provisions of section 18 of the New York
26 state urban development corporation act, the urban development corpo-
27 ration is hereby authorized to issue bonds or notes in one or more
28 series in an aggregate principal amount not to exceed $50,000,000,
29 excluding bonds issued to fund one or more debt service reserve funds,
30 to pay costs of issuance of such bonds, and bonds or notes issued to
31 refund or otherwise repay such bonds or notes previously issued, for the
32 purpose of making grants, loans or combinations thereof in accordance
33 with a programmatic and financial plan to be approved by the director of
34 the budget for economic development projects which will facilitate the
35 creation or retention of jobs or increase business activity within down-
36 town Buffalo, the Buffalo inner harbor area or surrounding environs; and
37 to reimburse the state capital projects fund for disbursements made
38 therefor. Eligible project costs may include, but not be limited to the
39 costs of design, financing, site acquisition and preparation, working
40 capital, demolition, construction, rehabilitation, acquisition of
41 machinery and equipment, parking facilities, and infrastructure. Such
42 bonds and notes of the corporation shall not be a debt of the state and
43 the state shall not be liable thereon, nor shall they be payable out of
44 any funds other than those appropriated by the state to the corporation
45 for debt service and related expenses pursuant to any service contract
46 executed pursuant to subdivision (b) of this section, and such bonds and
47 notes shall contain on the face thereof a statement to such effect.
48 Except for purposes of complying with the internal revenue code, any
49 interest income earned on bond proceeds shall only be used to pay debt
50 service on such bonds.
51 (b) Notwithstanding any other law, rule or regulation to the contrary,
52 in order to assist the corporation in undertaking the administration and
S. 1409 55 A. 2109
1 financing of projects authorized pursuant to subdivision (a) of this
2 section, the director of the budget is hereby authorized to enter into
3 one or more service contracts with the corporation, none of which shall
4 exceed more than 15 years in duration, upon such terms and conditions as
5 the director of the budget and the corporation agree, so as to annually
6 provide to the corporation, in the aggregate, a sum not to exceed the
7 annual debt service payments and related expenses required for the bonds
8 and notes issued pursuant to this section. Any service contract entered
9 into pursuant to this subdivision shall provide that the obligation of
10 the state to pay the amount therein provided shall not constitute a debt
11 of the state within the meaning of any constitutional or statutory
12 provision and shall be deemed executory only to the extent of monies
13 available and that no liability shall be incurred by the state beyond
14 the monies available for such purposes, subject to annual appropriation
15 by the legislature. Any such contract or any payments made or to be made
16 thereunder may be assigned or pledged by the corporation as security for
17 its bonds and notes, as authorized by this section.
18 § 2. This act shall take effect April 1, 2003; provided, however, that
19 if this act shall become a law after such date it shall take effect
20 immediately and shall be deemed to have been in full force and effect on
21 and after April 1, 2003.
22 PART O
23 Section 1. Section 2 of chapter 393 of the laws of 1994, amending the
24 New York state urban development corporation act, as amended by section
25 1 of part K of chapter 84 of the laws of 2002, is amended to read as
26 follows:
27 § 2. This act shall take effect immediately [provided, however, that
28 section one of this act shall expire on July 1, 2003, at which time the
29 provisions of subdivision 26 of section 5 of the New York state urban
30 development corporation act shall be deemed repealed; provided, however,
31 that neither the expiration nor the repeal of such subdivision as
32 provided for herein shall be deemed to affect or impair in any manner
33 any loan made pursuant to the authority of such subdivision prior to
34 such expiration and repeal].
35 § 2. This act shall take effect April 1, 2003; provided, however, if
36 this act shall become a law after such date it shall take effect imme-
37 diately and shall be deemed to have been in full force and effect on and
38 after April 1, 2003.
39 PART P
40 Section 1. Notwithstanding any other law, rule or regulation to the
41 contrary, expenses of the department of health public service education
42 program incurred pursuant to appropriations from the cable television
43 account of the state miscellaneous special revenue funds shall be deemed
44 expenses of the department of public service.
45 § 2. Expenditures of moneys appropriated in a chapter of the laws of
46 2003 to the department of agriculture and markets from the special
47 revenue funds-other/state operations, miscellaneous special revenue
48 fund-339, public service account for the agricultural business services
49 program shall be subject to the provisions of this section. Notwith-
50 standing any law to the contrary, expenditures from the miscellaneous
51 special revenue fund appropriation, and indirect costs under the comp-
52 troller's statewide cost allocation plan, shall be deemed expenses of
S. 1409 56 A. 2109
1 the department of public service within the meaning of section 18-a of
2 the public service law and assessed accordingly. Expenditures subject
3 to assessment shall include those for direct and indirect participation
4 in certification proceedings pursuant to article 7 of the public service
5 law.
6 § 3. Expenditures of moneys appropriated in a chapter of the laws of
7 2003 to the department of economic development from the special revenue
8 funds-other/state operations, miscellaneous special revenue fund-339,
9 public service account for the administration program shall be subject
10 to the provisions of this section. Notwithstanding any law to the
11 contrary, expenditures from the miscellaneous special revenue fund
12 appropriations and indirect costs under the comptroller's statewide cost
13 allocation plan, shall be deemed expenses of the department of public
14 service within the meaning of section 18-a of the public service law and
15 assessed accordingly. Expenditures subject to assessment shall include
16 those for direct and indirect participation in certification proceedings
17 pursuant to article 7 of the public service law.
18 § 4. Expenditures of moneys appropriated in a chapter of the laws of
19 2003 to the office of parks, recreation and historic preservation from
20 the special revenue funds - other/state operations, miscellaneous
21 special revenue fund - 339, public service account under the historic
22 preservation program shall be subject to the provisions of this section.
23 Notwithstanding any law to the contrary, expenditures from the miscella-
24 neous special revenue fund appropriations, and indirect costs under the
25 comptroller's statewide cost allocation plan, shall be deemed expenses
26 of the department of public service within the meaning of section 18-a
27 of the public service law and assessed accordingly. Expenditures
28 subject to assessment shall include those for direct and indirect
29 participation in certification proceedings pursuant to article 7 of the
30 public service law.
31 § 5. Expenditures of moneys appropriated in a chapter of the laws of
32 2003 to the consumer protection board from the special revenue funds -
33 other/state operations, miscellaneous special revenue fund - 339, public
34 service account for the consumer protection program for services and
35 expenses related to consumer protection activities, including travel
36 outside the state, shall be subject to the provisions of this section.
37 Notwithstanding any provision of law to the contrary, such expenditures
38 shall be deemed an expense of the department of public service within
39 the meaning of section 18-a of the public service law.
40 § 6. Expenditures of moneys appropriated in a chapter of the laws of
41 2003 to the department of environmental conservation from the special
42 revenue funds - other/state operations, environmental conservation
43 special revenue fund - 301, utility environmental regulation account
44 shall be subject to the provisions of this section. Notwithstanding any
45 law to the contrary, expenditures from the miscellaneous special revenue
46 fund and indirect costs under the comptroller's statewide cost allo-
47 cation plan, shall be deemed expenses of the department of public
48 service within the meaning of section 18-a of the public service law and
49 assessed accordingly. Expenditures subject to assessment shall include
50 those for direct and indirect participation in certification proceedings
51 pursuant to article 7 of the public service law; oil and gas, coal and
52 nuclear regulatory and planning activities; and small hydropower, cogen-
53 eration, alternate energy and electric generation facility sitings.
54 § 7. Expenditure of moneys appropriated in a chapter of the laws of
55 2003 to the office of public security from the special revenue funds-
56 other/state operations, miscellaneous special revenue fund-339, public
S. 1409 57 A. 2109
1 service account for the cyber security and critical infrastructure coor-
2 dination office shall be subject to the provisions of this section.
3 Notwithstanding any law to the contrary, expenditures from the miscella-
4 neous special revenue fund appropriation, and indirect costs under the
5 comptroller's statewide cost allocation plan, shall be deemed expenses
6 of the department of public service within the meaning of section 18-a
7 of the public service law and assessed accordingly.
8 § 8. This act shall take effect April 1, 2003; provided, however, that
9 if this act shall become a law after such date, it shall take effect
10 immediately and shall be deemed to have been in full force and effect on
11 and after April 1, 2003.
12 PART Q
13 Section 1. Section 72-1003 of the environmental conservation law, as
14 added by chapter 166 of the laws of 1991, is amended to read as follows:
15 § 72-1003. Fees.
16 All persons required to obtain a permit or approval or subject to
17 regulation under this title shall submit annually to the department a
18 fee in the amount to be determined for affected land as follows:
19 1. four hundred dollars for minor projects; or
20 2. seven hundred dollars for affected land of an acreage equal to or
21 less than five acres; or
22 3. nine hundred dollars for affected land of an acreage greater than
23 five acres and equal to or less than ten acres; or
24 4. [twelve] fifteen hundred dollars for affected land of an acreage
25 greater than ten acres and equal to or less than twenty acres; or
26 5. [one thousand five hundred] two thousand dollars for affected land
27 of an acreage greater than twenty acres and equal to or less than thirty
28 acres; or
29 6. [two] four thousand dollars for affected land of an acreage greater
30 than thirty acres.
31 § 2. This act shall take effect immediately and shall be deemed to
32 have been in full force and effect on and after April 1, 2003.
33 PART R
34 Section 1. Notwithstanding any provision of section 1854-d of the
35 public authorities law, the New York state energy research and develop-
36 ment authority is hereby authorized and directed, upon the request of
37 the director of the division of the budget, to transfer to the state
38 comptroller for deposit in the state general fund the amount of
39 $1,800,000 from the interest earnings on assessments paid to the author-
40 ity pursuant to paragraph c of subdivision 2 of such section.
41 § 2. Notwithstanding any law to the contrary, the comptroller is here-
42 by authorized and directed to receive for deposit to the credit of the
43 environmental conservation special revenue fund-301 low level radioac-
44 tive waste account from the New York state energy research and develop-
45 ment authority $330,000 received pursuant to subparagraph (ii) of para-
46 graph a of subdivision 2 of section 1854-d of the public authorities law
47 for the purposes specified in a chapter of the laws of 2003.
48 § 3. Notwithstanding any law to the contrary, the comptroller is here-
49 by authorized and directed to receive for deposit to the credit of the
50 general fund the amount of $913,000 from the New York state energy
51 research and development authority.
52 § 4. This act shall take effect April 1, 2003; provided however, if
53 this act shall become a law after such date it shall take effect imme-
S. 1409 58 A. 2109
1 diately and shall be deemed to have been in full force and effect on and
2 after April 1, 2003.
3 PART S
4 Section 1. Expenditures of moneys appropriated in a chapter of the
5 laws of 2003 to the energy research and development authority from the
6 special revenue funds - other/state operations, miscellaneous special
7 revenue fund-339, energy research and planning account under the
8 research, development and demonstration and policy and planning programs
9 for services and expenses for the research, development and demon-
10 stration and policy and planning programs shall be subject to the
11 provisions of this section. Notwithstanding the provisions of subdivi-
12 sion 4-a of section 18-a of the public service law all moneys committed
13 or expended shall be reimbursed by assessment against gas corporations
14 and electric corporations as defined in section 2 of the public service
15 law, and the total amount which may be charged to any gas corporation
16 and any electric corporation shall not exceed one cent per one thousand
17 cubic feet of gas sold and .010 cent per kilowatt-hour of electricity
18 sold by such corporations in their intrastate utility operations in
19 calendar year 2001. Such amounts shall be excluded from the general
20 assessment provisions of subdivision 2 of section 18-a of the public
21 service law, but shall be billed and paid in the manner set forth in
22 such subdivision and upon receipt shall be paid to the state comptroller
23 for deposit in the state treasury for credit to the miscellaneous
24 special revenue fund. The director of the budget shall not issue a
25 certificate of approval with respect to the commitment and expenditure
26 of moneys hereby appropriated until the chair of the authority shall
27 have submitted, and the director of the budget shall have approved, a
28 comprehensive financial plan encompassing all moneys available to and
29 all anticipated commitments and expenditures by the authority from any
30 source for the operations of the authority. Copies of the approved
31 comprehensive financial plan shall be immediately submitted by the
32 director of the budget to the chairs and secretaries of the legislative
33 fiscal committees.
34 § 2. This act shall take effect April 1, 2003; provided, however, if
35 this act shall become a law after such date it shall take effect imme-
36 diately and shall be deemed to have been in full force and effect on and
37 after April 1, 2003.
38 PART T
39 Section 1. Section 23-1903 of the environmental conservation law, as
40 amended by chapter 891 of the laws of 1984, subdivision 1 as amended by
41 chapter 410 of the laws of 1987, is amended to read as follows:
42 § 23-1903. Imposition of oil, gas and solution mining regulation and
43 reclamation fees.
44 1. When a permit is granted to a person by the department pursuant to
45 section 23-0305 of this article to drill a well or when a person
46 converts a well to one subject to the oil, gas and solution mining law,
47 such person shall pay to the department:
48 a. A one hundred dollar fee to be credited to the oil and gas account
49 established under chapter fifty-eight of the laws of nineteen hundred
50 eighty-two; and
51 b. A fee in accordance with the depth drilled or expected to be
52 drilled as set forth below:
S. 1409 59 A. 2109
1 0- 500ft. - [$ 125] $ 190
2 501- 1000ft. - [$ 250] $ 380
3 1001- 1500ft. - [$ 375] $ 570
4 1501- 2000ft. - [$ 500] $ 760
5 2001- 2500ft. - [$ 625] $ 950
6 2501- 3000ft. - [$ 750] $1,140
7 3001- 3500ft. - [$ 875] $1,330
8 3501- 4000ft. - [$1000] $1,520
9 4001- 4500ft. - [$1125] $1,710
10 4501- 5000ft. - [$1250] $1,900
11 5001- 5500ft. - [$1375] $2,090
12 5501- 6000ft. - [$1500] $2,280
13 6001- 6500ft. - [$1625] $2,470
14 6501- 7000ft. - [$1750] $2,660
15 7001- 7500ft. - [$1875] $2,850
16 7501- 8000ft. - [$2000] $3,040
17 8001- 8500ft. - [$2125] $3,230
18 8501- 9000ft. - [$2250] $3,420
19 9001- 9500ft. - [$2375] $3,610
20 9501-10,000ft.- [$2500] $3,800
21 over 10,000ft.- [$2625] $3,800 plus $190 for each incremental 500 feet
22 of depth over 10,000 feet.
23 A person who has paid the fees described shall not be required to pay
24 any additional fee for a well conversion. The fee for well deepening
25 permits pertaining to wells for which a well drilling permit was issued
26 after August twenty-fifth, nineteen hundred eighty-one, shall be calcu-
27 lated on the basis of the additional depth drilled.
28 In the event the actual depth drilled exceeds the depth expected to be
29 drilled, an additional amount shall be paid such that the total fee paid
30 shall be in accordance with the schedule set forth in this paragraph.
31 2. Upon requesting from the department any determination under the
32 Natural Gas Policy Act, such person shall pay a fifty dollar fee per
33 well for each such determination.
34 § 2. This act shall take effect on the ninetieth day after it shall
35 have become a law.
36 PART U
37 Section 1. Paragraphs (b), (c) and (d) of subdivision 6 of section
38 92-s of the state finance law, paragraphs (b) and (c) as amended by
39 chapter 432 of the laws of 1997, and paragraph (d) as amended by section
40 13 of part E of chapter 61 of the laws of 2000, are amended to read as
41 follows:
42 (b) Moneys from the solid waste account shall be available, pursuant
43 to appropriation and upon certificate of approval of availability by the
44 director of the budget, for any non-hazardous municipal landfill closure
45 project; municipal waste reduction or recycling project, as defined in
46 article fifty-four of the environmental conservation law; for the
47 purposes of section two hundred sixty-one and section two hundred
48 sixty-four of the economic development law; any project for the develop-
49 ment, updating or revision of local solid waste management plans pursu-
50 ant to sections 27-0107 and 27-0109 of the environmental conservation
51 law; [and] for the development of the pesticide sales and use data base
52 in conjunction with Cornell University pursuant to title twelve of arti-
53 cle thirty-three of the environmental conservation law; and for any
S. 1409 60 A. 2109
1 projects to assess and recover any natural resource damages to the
2 Hudson River.
3 (c) Moneys from the parks, recreation and historic preservation
4 account shall be available, pursuant to appropriation, for any municipal
5 park project, historic preservation project, urban cultural park
6 project, waterfront revitalization program, coastal rehabilitation
7 project, state parks and lands infrastructure and stewardship project,
8 Hudson River Park project consistent with chapter five hundred ninety-
9 two of the laws of nineteen hundred ninety-eight, and historic barn
10 projects.
11 (d) Moneys from the open space account shall be available, pursuant to
12 appropriation, (i) for any open space land conservation project[,]; (ii)
13 for bio-diversity stewardship and research pursuant to chapter five
14 hundred fifty-four of the laws of nineteen hundred ninety-three[,];
15 (iii) for the purposes of agricultural and farmland protection activ-
16 ities as authorized by article twenty-five-AAA of the agriculture and
17 markets law[,]; (iv) for non-point source abatement and control projects
18 pursuant to section 17-1409 of the environmental conservation law and
19 section eleven-b of the soil and water conservation districts law[,];
20 (v) for soil and water conservation district activities authorized for
21 reimbursement pursuant to section eleven-a of the soil and water conser-
22 vation districts law; (vi) for projects to implement the Hudson River
23 estuary management plan prepared pursuant to section 11-0306 of the
24 environmental conservation law; (vii) for Long Island Central Pine
25 Barrens area planning or Long Island south shore estuary reserve plan-
26 ning pursuant to title thirteen of article fifty-four of the environ-
27 mental conservation law[, and]; (viii) for operation and management of
28 the Albany Pine Bush preserve commission pursuant to subdivision two of
29 section 54-0303 of the environmental conservation law; and for the oper-
30 ation of the Hudson River Valley Greenway Commission pursuant to article
31 forty-four of the environmental conservation law, as amended by a chap-
32 ter of the laws of two thousand three.
33 § 2. Subdivision 9 of section 92-s of the state finance law, as added
34 by section 3 of part H of chapter 82 of the laws of 2002, is amended to
35 read as follows:
36 9. Notwithstanding any other law to the contrary and in accordance
37 with section four of this chapter, the comptroller is hereby authorized
38 at the direction of the director of the division of the budget to trans-
39 fer moneys from the general fund to the environmental protection fund
40 for the purpose of maintaining the solvency of the environmental
41 protection fund. If, in any fiscal year, moneys in the environmental
42 protection fund are deemed insufficient by the director of the division
43 of the budget to meet actual and anticipated disbursements from enacted
44 appropriations or reappropriations made pursuant to this section, the
45 comptroller shall at the direction of the director of the division of
46 the budget, transfer from the general fund to the environmental
47 protection fund moneys sufficient to meet such disbursements. Such
48 transfers shall be made only upon certification of need by the director
49 of the division of the budget, with copies of such certification filed
50 with the [chairmen] chairperson of the senate finance committee, the
51 chairperson of the assembly ways and means committee and the state comp-
52 troller. The aggregate amount of all transfers shall not exceed two
53 hundred [thirty-five] fifty-five million dollars.
54 § 3. Article 54 of the environmental conservation law is amended by
55 adding a new title 14 to read as follows:
S. 1409 61 A. 2109
1 TITLE 14
2 STATE PARKS AND LANDS INFRASTRUCTURE AND STEWARDSHIP PROJECTS
3 Section 54-1401. Definitions.
4 54-1402. State parks and lands infrastructure and stewardship
5 projects.
6 § 54-1401. Definitions.
7 As used in this title:
8 1. "Stewardship" shall mean the care of the lands, facilities and
9 natural and cultural resources under the jurisdiction of the department
10 and the office of parks, recreation and historic preservation on behalf
11 of the public, and the provision of public access thereto.
12 2. "State parks and lands infrastructure" shall mean state park
13 resources, recreational facilities and historic sites and any other
14 property, real or personal, under the jurisdiction of the department and
15 the office of parks, recreation and historic preservation, together with
16 machinery, equipment, furnishings and fixtures relating thereto or used
17 in connection therewith.
18 3. "State parks and lands infrastructure and stewardship projects"
19 shall mean all costs incurred or to be incurred by or on behalf of the
20 department and the office of parks, recreation and historic preservation
21 for the purpose of preserving, improving or rehabilitating state parks
22 and lands infrastructure. Such projects may include, but are not limited
23 to: natural resource and habitat restoration and protection such as the
24 protection and management of biological, land, geological, archeological
25 and other natural resources, survey and inventory, scientific research,
26 planning and analysis, and development of unit management plans;
27 projects to improve public access including access opportunities for
28 people with disabilities by developing, restoring, reconstructing, reha-
29 bilitating and maintaining physical facilities, including but not limit-
30 ed to buildings, roads, bridges and waste disposal systems; projects to
31 develop, maintain, or improve marine resource facilities, water access
32 facilities, recreational trails, campgrounds, day use areas, fish hatch-
33 eries, public beach facilities, visitor centers, interpretive and
34 conservation education facilities; and historic preservation projects to
35 improve, restore or rehabilitate property listed on the state or
36 national registers of historic places to protect the historic, cultural
37 or architectural significance thereof.
38 § 54-1402. State parks and lands infrastructure and stewardship
39 projects.
40 1. The commissioner and the commissioner of parks, recreation and
41 historic preservation are authorized to undertake state parks and lands
42 infrastructure and stewardship projects.
43 2. No monies shall be expended for state parks and lands infrastruc-
44 ture and stewardship projects except pursuant to an appropriation there-
45 for.
46 § 4. Subdivision 7 of section 92-s of the state finance law is
47 REPEALED.
48 § 5. The title heading of title 5 of article 54 of the environmental
49 conservation law, as added by chapter 610 of the laws of 1993, is
50 amended to read as follows:
51 NON-HAZARDOUS MUNICIPAL LANDFILL CLOSURE PROJECTS
52 AND MUNICIPAL LANDFILL GAS MANAGEMENT PROJECTS
53 § 6. Subdivisions 2, 3 and 4 of section 54-0501 of the environmental
54 conservation law, subdivision 2 as amended and subdivision 4 as added by
55 section 17 of part A of chapter 58 of the laws of 1998, subdivision 3 as
S. 1409 62 A. 2109
1 added by chapter 610 of the laws of 1993, are amended and two new subdi-
2 visions 5 and 6 are added to read as follows:
3 2. "Municipal [Landfill] landfill closure project" means activities
4 undertaken to close, including by reclamation, a landfill owned or oper-
5 ated by a municipality to achieve compliance with regulations promulgat-
6 ed by the department, [or] activities undertaken to implement a landfill
7 gas management system [project], or activities undertaken to implement a
8 beneficial end-use.
9 3. "Cost" means the capital cost of a municipal landfill closure
10 project or a municipal landfill gas management project, including engi-
11 neering and architectural services, plans and specifications, consultant
12 and legal services, and other direct capital expenses incident to such
13 project, less any federal or other assistance for such project received
14 or to be received.
15 4. "Landfill gas management system" means [a] an active system for the
16 control, capture, and management of gas created within and emitted from
17 a solid waste landfill.
18 5. "Beneficial end-use" means a public recreational use, such as a
19 park, hiking trail, golf course, nature area, baseball field, ski slope,
20 or sledding hill, or other public use demonstrated to the department to
21 be beneficial to a community.
22 6. "Municipal landfill gas management project" means activities under-
23 taken to implement a landfill gas management system at an active land-
24 fill which is owned or operated by a municipality.
25 § 7. The section heading of section 54-0503 of the environmental
26 conservation law, as added by chapter 610 of the laws of 1993, is
27 amended and a new subdivision 5 is added to read as follows:
28 Eligibility to receive state assistance payments for municipal land-
29 fill closure projects.
30 5. For a beneficial end-use, the landfill must have been closed, and
31 currently be, in compliance with the department's solid waste management
32 regulations which became effective on December thirty-first, nineteen
33 hundred eighty-eight or any subsequent revisions to such regulations.
34 § 8. The environmental conservation law is amended by adding a new
35 section 54-0504 to read as follows:
36 § 54-0504. Eligibility to receive state assistance payments for munici-
37 pal landfill gas management projects.
38 Any municipality which is the owner or operator of a landfill may
39 apply for state assistance payments toward the cost of a municipal land-
40 fill gas management project. Any application for a municipal landfill
41 gas management project must comply with all applicable rules and regu-
42 lations promulgated by the department.
43 § 9. Subdivision 1 of section 54-0505 of the environmental conserva-
44 tion law, as added by chapter 610 of the laws of 1993, is amended to
45 read as follows:
46 1. State assistance payments shall be approved only for closure
47 projects that include plans for closure, post-closure and construction
48 in accordance with the department's solid waste management regulations
49 applicable to new projects[,] which were in effect six months prior to
50 the date of submittal of the final application.
51 § 10. The environmental conservation law is amended by adding a new
52 section 54-0506 to read as follows:
53 § 54-0506. Criteria for municipal landfill gas management projects.
54 Municipal landfill gas management project costs incurred prior to
55 April first, nineteen hundred ninety-three shall not be eligible for
56 state assistance payments funded pursuant to this article.
S. 1409 63 A. 2109
1 § 11. Paragraphs b and c of subdivision 2 and subdivision 3 of section
2 54-0507 of the environmental conservation law, as added by chapter 610
3 of the laws of 1993, are amended and a new paragraph d is added to
4 subdivision 2 to read as follows:
5 b. any adverse environmental impact resulting from the municipal land-
6 fill, including effects on groundwater; [and]
7 c. the ability of the municipality to pay for the costs of the munici-
8 pal landfill closure[.] project; and
9 d. for beneficial end-uses, the community value of the recreational
10 use to be provided to the public.
11 3. No monies shall be expended for non-hazardous municipal landfill
12 closure projects or municipal landfill gas management projects except
13 pursuant to an appropriation therefor.
14 § 12. The section heading and subdivision 2 of section 54-0509 of the
15 environmental conservation law, the section heading as added by chapter
16 610 of the laws of 1993, and subdivision 2 as amended by section 1 of
17 part H of chapter 82 of the laws of 2002, are amended to read as
18 follows:
19 Contracts for state assistance payments for municipal landfill closure
20 projects and municipal landfill gas management projects.
21 2. An agreement by the commissioner to make state assistance payments
22 toward the cost of the project by periodically reimbursing the munici-
23 pality for costs incurred during the progress of the project [to]. For a
24 municipal landfill closure project, which does not include a landfill
25 gas management system or beneficial end-use, such reimbursement shall be
26 a maximum of either fifty percent of the cost, or ninety percent of the
27 cost for a municipality with a population smaller than thirty-five
28 hundred as determined by the current federal decennial census, or two
29 million dollars, whichever is less. [The commissioner may consider land-
30 fill gas management system projects separately from landfill closure
31 projects.] For a landfill gas management system, which is part of a
32 municipal landfill closure project, reimbursement shall be a maximum of
33 either fifty percent of the cost, or 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, which is part of a
37 municipal landfill closure project, reimbursement shall be a maximum of
38 either fifty percent of the cost, or ninety percent of the cost for a
39 municipality with a population smaller than thirty-five hundred as
40 determined by the current federal decennial census, or five hundred
41 thousand dollars, whichever is less. For a municipal landfill gas
42 management project, reimbursement shall be a maximum of either fifty
43 percent of the cost, or ninety percent of the cost for a municipality
44 with a population smaller than thirty-five hundred as determined by the
45 current federal decennial census, or two million dollars, whichever is
46 less. Project costs are subject to final computation and determination
47 by the commissioner upon completion of the project, and shall not exceed
48 the maximum cost set forth in the contract. For purposes of this subdi-
49 vision, the approved project cost shall be reduced by the amount of any
50 specific state assistance payments for municipal landfill closure or
51 municipal landfill gas management project purposes received by the muni-
52 cipality from any source; provided, however, that non-specific state
53 assistance payments, such as amounts paid pursuant to section fifty-four
54 of the state finance law, shall not be included in such cost reduction.
S. 1409 64 A. 2109
1 § 13. The section heading of section 54-0511 of the environmental
2 conservation law, as added by chapter 610 of the laws of 1993, is
3 amended to read as follows:
4 Loans for municipal landfill closure projects and municipal landfill
5 gas management projects.
6 § 14. This act shall take effect April 1, 2003; provided, however, if
7 this act shall become a law after such date it shall take effect imme-
8 diately and sections one, two, three and four of this act shall be
9 deemed to have been in full force and effect on and after April 1, 2003.
10 PART V
11 Section 1. Subdivisions c, d, e, f, g, h and i of section 72-0602 of
12 the environmental conservation law, as amended by chapter 62 of the laws
13 of 1989, is amended to read as follows:
14 c. [$375.00] $475.00 for industrial facilities having a permit to
15 discharge or discharging at an average daily rate of less than 10,000
16 gallons;
17 d. [$1,250.00] $1,575.00 for industrial facilities having a permit to
18 discharge or discharging at an average daily rate of between 10,000
19 gallons and 99,999 gallons;
20 e. [$3,750.00] $4,750.00 for industrial facilities having a permit to
21 discharge or discharging at an average daily rate of between 100,000
22 gallons and 499,999 gallons;
23 f. [$12,500.00] $15,750.00 for industrial facilities having a permit
24 to discharge or discharging at an average daily rate of between 500,000
25 and 999,999 gallons;
26 g. [$18,750.00] $23,500.00 for industrial facilities having a permit
27 to discharge or discharging at an average daily rate of between
28 1,000,000 and 9,999,999 gallons;
29 h. [$37,500.00] $47,000.00 for industrial facilities having a permit
30 to discharge or discharging at an average daily rate of 10,000,000
31 gallons or more;
32 i. [$40,000.00] $50,000.00 for any power plant;
33 § 2. This act shall take effect April 1, 2003.
34 PART W
35 Section 1. Paragraphs (a), (b) and (c) of subdivision 2 of section 202
36 of the vehicle and traffic law, paragraph (a) as amended by chapter 61
37 of the laws of 1989 and paragraphs (b) and (c) as amended by chapter 166
38 of the laws of 1991, are amended to read as follows:
39 (a) The fee for a search which is made manually by the department
40 shall be [five] six dollars.
41 (b) The fee for a search which is made by direct entry by a requester
42 who has been approved for such entry by the commissioner shall be [four]
43 five dollars.
44 (c) The fee for a search which is made by means of an electronic medi-
45 um which has been prepared by a requester who has been approved for such
46 service by the commissioner and which is processed by the department
47 shall be [four] five dollars.
48 § 2. Notwithstanding any other law, rule or regulation to the contra-
49 ry, all receipts collected by the commissioner of motor vehicles after
50 March 31, 2003 pursuant to section 202 of the vehicle and traffic law
51 are to be deposited to the credit of the dedicated highway and bridge
52 trust fund, with the exception of the one dollar per search increase
S. 1409 65 A. 2109
1 collected pursuant to section one of this act, which are to be deposited
2 to the credit of the general fund from April 1, 2003 to March 31, 2004
3 and to the credit of the dedicated highway and bridge trust fund from
4 April 1, 2004 and thereafter.
5 § 3. Subdivision (d) of section 304-a of the vehicle and traffic law,
6 as added by chapter 309 of the laws of 1996, is amended to read as
7 follows:
8 (d) Fees, deposited. Fees assessed under this section shall be paid to
9 the commissioner for deposit to the transportation safety account estab-
10 lished pursuant to section ninety-one of the state finance law through
11 March thirty-first, two thousand four and from April first, two thousand
12 four and thereafter shall be deposited to the dedicated highway and
13 bridge trust fund.
14 § 4. Paragraphs 1 and 2 of subdivision (a) and subdivision (d) of
15 section 305 of the vehicle and traffic law, as amended by chapter 608 of
16 the laws of 1993, are amended to read as follows:
17 (1) The fee for a certificate representing that a safety inspection
18 has been performed shall be two dollars, which shall be deposited into
19 the transportation safety account established pursuant to section nine-
20 ty-one of the state finance law through March thirty-first, two thousand
21 four and to the dedicated highway and bridge trust fund from April
22 first, two thousand four and thereafter, and
23 (2) The fee for a certificate representing that an emissions
24 inspection has been successfully completed shall be set by the commis-
25 sioner through regulation, at an amount not to exceed [two] four dollars
26 or [four] eight dollars if performed on a biennial basis. Such fees
27 shall be deposited into the mobile source account of the clean air fund
28 established by section ninety-seven-oo of the state finance law.
29 (d) Fees assessed under this article shall be paid to the commissioner
30 for deposit to the transportation safety account established pursuant to
31 section ninety-one of the state finance law through March thirty-first,
32 two thousand four and from April first, two thousand four and thereafter
33 shall be deposited into the dedicated highway and bridge trust fund,
34 except that fees that are authorized to be collected for each certif-
35 icate of emissions inspection issued by the commissioner, collected
36 pursuant to paragraph two of subdivision (a) of this section, shall be
37 deposited into the mobile source account of the clean air fund, as
38 established by section ninety-seven-oo of the state finance law.
39 § 5. Subdivisions 6 and 6-a of section 415 of the vehicle and traffic
40 law, as amended by chapter 7 of the laws of 2000, are amended to read as
41 follows:
42 6. Fees. Every original application for registration as a dealer or
43 transporter shall be accompanied by an application fee of twenty-five
44 dollars, which shall in no event be refunded. The annual fee for regis-
45 tration as a dealer or transporter or for renewal thereof shall be one
46 hundred fifty dollars. The annual fee for any other registration under
47 this section shall be fifty dollars. However, the commissioner may, in
48 his discretion, issue a renewal of either registration for a period of
49 two years. The fee for a two-year renewal shall be twice the annual fee.
50 The annual fee for dealer or transporter number plates shall be twenty
51 dollars for each set. If the commissioner issues to dealers a document
52 which is required to be used by a dealer to sell or transfer a vehicle,
53 the fee for the issuance of each such document shall be [one dollar]
54 five dollars. There shall be no refund of registration fee or fees for
55 number plates in the event of suspension, revocation or voluntary
56 cancellation of registration. The fee for any such transfer document
S. 1409 66 A. 2109
1 issued by the commissioner shall be refunded only upon the surrender of
2 such document upon voluntary cancellation of registration.
3 6-a. Fees; deposited. Fees assessed under this section shall be paid
4 to the commissioner for deposit to the general fund, with the exception
5 of the four dollar increase in the fee for issuance of a document to be
6 used by a dealer to sell or transfer a vehicle collected pursuant to
7 subdivision six of this section, which shall be deposited to the general
8 fund through March thirty-first, two thousand four and from April first,
9 two thousand four and thereafter to the dedicated highway and bridge
10 trust fund.
11 § 6. Paragraph 1 of subdivision (a) of section 2125 of the vehicle and
12 traffic law, as amended by chapter 322 of the laws of 1993, is amended
13 and a new subdivision (g) is added to read as follows:
14 (1) for filing an application for a certificate of title, [five] ten
15 dollars except where the application relates to a mobile home or a manu-
16 factured home as defined in section one hundred twenty-two-c of this
17 chapter, in which case the fee shall be twenty-five dollars;
18 (g) Fees assessed for filing an application for a certificate of title
19 shall be deposited to the credit of the general fund, with the exception
20 of the five dollar per application increase collected pursuant to para-
21 graph one of subdivision (a) of this section, which shall be deposited
22 in the general fund through March thirty-first, two thousand four and
23 from April first, two thousand four and thereafter shall be deposited to
24 the credit of the dedicated highway and bridge trust fund.
25 § 7. Notwithstanding any other law, rule or regulation to the contra-
26 ry, the comptroller is hereby authorized and directed to deposit to the
27 credit of the dedicated highway and bridge trust fund from taxes now
28 deposited in the general fund pursuant to the provisions of the vehicle
29 and traffic law the amount of fifty-nine million nine hundred thousand
30 dollars in twelve equal monthly installments from April 1, 2004 to March
31 31, 2005.
32 § 8. Subdivision 2 of section 205 of the tax law, as amended by
33 section 125 of part A of chapter 389 of the laws of 1997, is amended and
34 a new subdivision 3 is added to read as follows:
35 2. Of moneys collected from taxes imposed by sections one hundred
36 eighty-three and one hundred eighty-four of this [chapter] article
37 subsequent to June thirtieth, nineteen hundred eighty-two, sixty percent
38 shall be deposited pursuant to the provisions of section one hundred
39 seventy-one-a of this chapter, provided that after April first, nineteen
40 hundred ninety-six, fifty-two percent of such moneys collected on or
41 after such date shall be so deposited; provided, further, that after
42 January first, nineteen hundred ninety-seven, fifty and one-half percent
43 of such moneys collected on or after such date shall be so deposited;
44 provided, further, that after January first, nineteen hundred ninety-
45 eight, forty-six percent of such moneys collected on or after such date
46 shall be so deposited; provided, further, that after January first, two
47 thousand, thirty-six percent of such moneys collected on or after such
48 date shall be so deposited; provided, further, that after January first,
49 two thousand one but before April first, two thousand four, twenty
50 percent of such moneys collected on or after such date shall be so
51 deposited; and the balance of such collections shall be deposited in the
52 mass transportation operating assistance fund to the credit of the
53 metropolitan mass transportation operating assistance account; provided,
54 however, for taxable years commencing on or after January first, nine-
55 teen hundred eighty-five and ending on or before December thirty-first,
56 nineteen hundred eighty-nine, all of the moneys collected from the tax
S. 1409 67 A. 2109
1 imposed by section one hundred eighty-four of this chapter on corpo-
2 rations, joint-stock companies or associations formed for or principally
3 engaged in the conduct of telephone or telegraph business shall be
4 deposited in the mass transportation operating assistance fund to the
5 credit of the metropolitan mass transportation operating assistance
6 account; and provided, further, that the actual amount of moneys from
7 the taxes imposed by sections one hundred eighty-three and one hundred
8 eighty-four of this [chapter] article which shall be deposited in such
9 mass transportation operating assistance fund to the credit of the
10 metropolitan mass transportation operating assistance account, pursuant
11 to this subdivision, during the twelve month period from April first,
12 nineteen hundred eighty-five, to and including March thirty-first, nine-
13 teen hundred eighty-six, shall not be less than sixty million dollars;
14 provided, further, that for the twenty-four month period from April
15 first, nineteen hundred ninety-four, to and including March thirty-
16 first, nineteen hundred ninety-six, of the moneys so collected, sixty
17 percent shall be deposited in the general fund pursuant to the
18 provisions of section one hundred seventy-one-a of this chapter, thir-
19 ty-four and four-tenths percent shall be deposited in the revenue accu-
20 mulation fund and five and six-tenths percent shall be deposited in such
21 mass transportation operating assistance fund to the credit of such
22 metropolitan mass transportation operating assistance account.
23 3. From the moneys collected from the taxes imposed by sections one
24 hundred eighty-three and one hundred eighty-four of this article on and
25 after April first, two thousand four, after reserving amounts for
26 refunds or reimbursements, twenty percent of such moneys shall be depos-
27 ited to the credit of the dedicated highway and bridge trust fund estab-
28 lished by section eighty-nine-b of the state finance law. The remainder
29 shall be deposited in the mass transportation operating assistance fund
30 to the credit of the metropolitan mass transportation operating assist-
31 ance account created pursuant to section eighty-eight-a of the state
32 finance law.
33 § 9. Paragraph (a) of subdivision 3 of section 89-b of the state
34 finance law, as amended by section 1 of part D of chapter 85 of the laws
35 of 2002, is amended to read as follows:
36 (a) The special obligation reserve and payment account shall consist
37 (i) of all moneys required to be deposited in the dedicated highway and
38 bridge trust fund pursuant to the provisions of sections two hundred
39 five, two hundred eighty-nine-e, three hundred one-j, five hundred
40 fifteen and eleven hundred sixty-seven of the tax law, section four
41 hundred one of the vehicle and traffic law, and section thirty-one of
42 chapter fifty-six of the laws of nineteen hundred ninety-three, (ii) all
43 fees, fines or penalties collected by the commissioner of transportation
44 pursuant to section fifty-two and subdivisions five, eight and twelve of
45 section eighty-eight of the highway law, subdivision fifteen of section
46 three hundred eighty-five of the vehicle and traffic law, section two of
47 the chapter of the laws of two thousand three that amended this para-
48 graph, subdivision (d) of section three hundred four-a, paragraph one of
49 subdivision (a) and subdivision (d) of section three hundred five,
50 subdivision six-a of section four hundred fifteen and subdivision (g) of
51 section twenty-one hundred twenty-five of the vehicle and traffic law,
52 section fifteen of this chapter, excepting moneys deposited with the
53 state on account of betterments performed pursuant to subdivision twen-
54 ty-seven or subdivision thirty-five of section ten of the highway law,
55 and (iii) any other moneys collected therefor or credited or transferred
56 thereto from any other fund, account or source.
S. 1409 68 A. 2109
1 § 10. Section 91 of the state finance law is REPEALED.
2 § 11. This act shall take effect immediately; provided, however, that
3 section ten of this act shall take effect April 1, 2004.
4 PART X
5 Section 1. Short title. This act shall be known and may be cited as
6 the "Waste Tire Management and Recycling Act of 2003".
7 § 2. Subdivision 6 of section 27-0703 of the environmental conserva-
8 tion law, as added by chapter 88 of the laws of 1989, is amended to read
9 as follows:
10 6. Notwithstanding any other provision of law or rule or regulation to
11 the contrary, the owner or operator of a solid waste management facility
12 engaged in the storage of one thousand or more waste tires in existence
13 on or after the effective date of this subdivision shall submit to the
14 department a completed application for a permit to continue to operate
15 such facility, or cease operations and begin removal of the waste tires
16 from the facility and dispose of or treat them in a lawful manner pursu-
17 ant to a removal plan approved by the department. The owner or operator
18 must provide financial assurance to cover the cost of closure of the
19 facility at its maximum capacity, in a form and amount acceptable to the
20 department, before a permit will be issued.
21 § 3. Article 27 of the environmental conservation law is amended by
22 adding a new title 19 to read as follows:
23 TITLE 19
24 WASTE TIRE MANAGEMENT AND RECYCLING
25 Section 27-1901. Definitions.
26 27-1903. Waste tire management priorities.
27 27-1905. Mandatory tire acceptance.
28 27-1907. Abatement of noncompliant waste tire stockpiles.
29 27-1909. Market development.
30 27-1911. Prohibition on land burial.
31 27-1913. Waste tire management and recycling fee.
32 27-1915. Use of funds.
33 § 27-1901. Definitions.
34 When used in this title:
35 1. "Abatement" means the removal of a sufficient number of waste tires
36 from a noncompliant waste tire stockpile and restoration of the site to
37 a condition that is in substantial compliance with the rules and regu-
38 lations administered by the department for waste tire storage facili-
39 ties.
40 2. "Beneficial use" means the use of solid waste material, which would
41 otherwise need to be placed in a landfill or disposed of through alter-
42 native means, in such a manner that the nature of the use of the materi-
43 al constitutes a reuse rather than disposal. Beneficial uses include
44 incorporation of a solid waste material, which is a legitimate substi-
45 tute for a raw material, into a product marketable to an end user.
46 Waste tires which are burned as a fuel for the purposes of recovering
47 useable energy are considered to be beneficially used only at the point
48 at which they are burned.
49 3. "End use" means that a product requires no further processing or
50 manufacturing and is used by a consumer for the product's intended
51 application.
52 4. "End user" means the ultimate customer of a finished product.
S. 1409 69 A. 2109
1 5. "New tire" means a tire that has never been placed on a motor vehi-
2 cle wheel rim. It does not include recapped or resold tires or tires
3 placed on a motor vehicle prior to its original retail sale.
4 6. "Noncompliant waste tire stockpile" means a facility, including a
5 waste tire storage facility, parcel of property, or site so designated
6 by the department in accordance with this title, where one thousand or
7 more waste tires or mechanically processed waste tires have been accumu-
8 lated, stored or buried in a manner that the department has determined
9 is not in accordance with departmental regulations governing waste
10 tires, or any applicable law.
11 7. "Recycle" means to use recyclables in manufacturing a product for
12 an end use other than burning for recovery of useable energy.
13 8. "Recyclables" means solid waste materials that exhibit the poten-
14 tial to be used to make marketable products for end users.
15 9. "Tire service" means any person or business in New York state who
16 sells or installs new tires for use on any vehicle. A person who is not
17 the end point of sale and any governmental agency or political subdivi-
18 sion are excluded from this term.
19 10. "Vehicle" means any device which by virtue of its design could
20 qualify for registration pursuant to section four hundred one of the
21 vehicle and traffic law.
22 11. "Waste tire" means any solid waste which consists of whole tires
23 or portions of tires. Tire casings separated for retreading and tires
24 with sufficient tread for resale shall be included under this term,
25 however, crumb rubber shall not be considered a solid waste.
26 12. "Waste tire storage facility" means a facility at which waste
27 tires are stored and for which a permit or registration has been issued,
28 pursuant to department regulations.
29 § 27-1903. Waste tire management priorities.
30 In the interest of public health, safety and welfare and in order to
31 conserve natural resources and to promote recycling and market develop-
32 ment for waste tires, the state of New York establishes a policy on the
33 management of waste tires that states:
34 1. The waste tire management priorities in this state are:
35 (a) first, to reduce the number of waste tires generated;
36 (b) second, to recycle waste tires into value-added products;
37 (c) third, to beneficially use waste tires in an environmentally
38 acceptable manner, including the beneficial use in civil engineering
39 applications; and
40 (d) fourth, to recover, in an environmentally acceptable manner, ener-
41 gy from waste tires that cannot be economically recycled or otherwise
42 beneficially used.
43 2. State government must make a contribution to the development and
44 implementation of environmentally, economically and technically viable
45 waste tire management programs. The department shall cooperate with
46 other state agencies to ensure that waste tires are effectively managed
47 and used in environmentally acceptable ways.
48 § 27-1905. Mandatory tire acceptance.
49 Any tire service shall:
50 1. Accept from a customer, waste tires of approximately the same size
51 and in a quantity equal to the number of new tires purchased or
52 installed by the customer; and
53 2. Post written notice in a prominent location, which must be at least
54 eight and one-half inches by fourteen inches in size and contain the
55 following language:
S. 1409 70 A. 2109
1 "New York State law requires us to accept and manage waste tires from
2 vehicles in exchange for an equal number of new tires that we sell or
3 install. We are required to charge a separate and distinct waste tire
4 management and recycling fee of two dollars and fifty cents for each new
5 tire we sell. Any additional tire management and recycling costs are
6 included in the advertised price of the new tire."
7 § 27-1907. Abatement of noncompliant waste tire stockpiles.
8 1. No later than one year from the effective date of this title, the
9 department shall prepare a comprehensive plan designed to abate all
10 noncompliant waste tire stockpiles. This plan shall establish a noncom-
11 pliant waste tire stockpile abatement priority list and schedule for
12 abatement of each noncompliant waste tire stockpile based on potential
13 adverse impacts upon public health, safety or welfare, the environment,
14 or natural resources.
15 2. The owner or operator of a noncompliant waste tire stockpile shall,
16 at the department's request, submit to and/or cooperate with any and all
17 remedial measures necessary for the abatement of noncompliant waste tire
18 stockpiles paid for with funds appropriated by the state.
19 3. The department shall publish requests for proposals to seek
20 contractors to prepare whole and mechanically processed waste tires
21 situated at noncompliant waste tire stockpiles for arrangement in
22 accordance with fire safety requirements and for removal for appropriate
23 processing, recycling or beneficial use. Disposal will be considered
24 only as a last option. The expenses of abatement and fire safety activ-
25 ities at a noncompliant waste tire stockpile shall be paid by the person
26 or persons who owned, operated or maintained the noncompliant waste tire
27 stockpile, or from funds appropriated by the state and shall be a debt
28 recoverable by the state from all persons who owned, operated or main-
29 tained the noncompliant waste tire stockpile, and a lien and charge may
30 be placed on the premises upon which the noncompliant waste tire stock-
31 pile is maintained. Moneys recovered shall be paid to the environmental
32 conservation special revenue fund, waste tire management and recycling
33 account.
34 4. If execution upon a judgment for the recovery of the expenses of
35 any such abatement and fire safety activities at a noncompliant waste
36 tire stockpile is returned wholly or partially unsatisfied, such judg-
37 ment, if docketed in the place and manner required by law to make a
38 judgment of a court of record a lien upon real property, shall be a
39 first lien upon such premises, having preference over all other liens
40 and encumbrances whatever. Notwithstanding the foregoing, such lien
41 shall not have preference over any mortgage or other encumbrance for the
42 benefit of the state of New York or a public benefit corporation there-
43 of.
44 5. The department shall have authority to enter all noncompliant waste
45 tire stockpiles for the purpose of investigation and abatement.
46 § 27-1909. Market development.
47 No later than one year after the effective date of this title and
48 continuing annually thereafter, the department of economic development
49 shall:
50 1. assist private market development with new technologies for waste
51 tire reuse and recycling with an emphasis on higher-value end uses in
52 order to further create and enhance sustainable markets;
53 2. provide industrial and consumer education on other benefits of
54 recycled waste tire product through the preparation of fact sheets and
55 public workshops; and
S. 1409 71 A. 2109
1 3. prepare an annual summary report and analysis of markets and dispo-
2 sition of both New York state stockpiled tires and New York state annu-
3 ally generated waste tires. This report shall be submitted to the
4 department and legislature by the last day of March of each year.
5 § 27-1911. Prohibition on land burial.
6 No moneys from the environmental conservation special revenue fund,
7 waste tire management and recycling account shall be used to dispose of
8 waste tires in a landfill unless the department has determined that it
9 is not feasible to convert the waste tires to a beneficial use. Depart-
10 ment-approved beneficial uses of scrap-tire-derived material for leac-
11 hate collection systems, or gas collection systems in the construction
12 or operation of a landfill are not considered disposal.
13 § 27-1913. Waste tire management and recycling fee.
14 1. A waste tire management and recycling fee of two dollars and fifty
15 cents shall be charged on each new tire sold. The fee shall be paid by
16 the purchaser to the tire service at the time the new tire is purchased.
17 The fee does not apply to:
18 (a) recapped or resold tires;
19 (b) mail-order sales; or
20 (c) the sale of new motor vehicle tires to a person solely for the
21 purpose of resale provided the subsequent retail sale in this state is
22 subject to such fee.
23 2. The tire service shall collect the fee from the purchaser at the
24 time of the sale and shall remit such fee to the department of taxation
25 and finance with the quarterly report filed pursuant to subdivision
26 three of this section.
27 (a) The fee imposed shall be stated as an invoice item separate and
28 distinct from the selling price of the tire.
29 (b) The tire service shall be entitled to retain an allowance of twen-
30 ty-five cents per tire from fees collected.
31 (c) Any additional management and recycling costs of the retailer
32 shall be included in the published selling price of the new tire.
33 3. Each tire service maintaining a place of business in this state
34 shall make a return to the department of taxation and finance on a quar-
35 terly basis, with the return for January, February, and March of a given
36 year being due by April thirtieth of that year; the return for April,
37 May, and June of a given year being due by July thirty-first of that
38 year; the return for July, August, and September of a given year being
39 due by October thirty-first of that year; and the return for October,
40 November, and December of a given year being due by January thirty-first
41 of the following year.
42 (a) Each return shall include:
43 (i) the name of the tire service;
44 (ii) the address of the tire service's principal place of business and
45 the address of the principal place of business (if that is a different
46 address) from which the tire service engages in the business of making
47 retail sales of tires;
48 (iii) the name and signature of the person preparing the return;
49 (iv) the total number of new tires sold at retail for the preceding
50 quarter;
51 (v) the amount of waste tire management and recycling fees due; and
52 (vi) such other reasonable information as the department of taxation
53 and finance may require.
54 (b) Copies of each report shall be retained by the tire service for
55 three years.
S. 1409 72 A. 2109
1 If a tire service ceases business, it shall file a final return and
2 remit all fees due under this title with the department of taxation and
3 finance not more than one month after discontinuing that business.
4 4. All waste tire management and recycling fees collected by the
5 department of taxation and finance shall be transferred to the general
6 fund state purposes account established pursuant to section seventy-two
7 of the state finance law.
8 § 27-1915. Use of funds.
9 Funds from the environmental conservation special revenue fund, waste
10 tire management and recycling account, shall be made available for the
11 following purposes:
12 1. scoping and assessment costs:
13 (a). enumeration and assessment of noncompliant waste tire stockpiles;
14 and
15 (b). aerial reconnaissance to locate, survey and characterize sites
16 environmentally, for remote sensing, spacial analysis and scanning;
17 2. abatement of noncompliant waste tire stockpiles;
18 3. administration of the requirements of this article;
19 4. conducting an updated market analysis of outlets for waste tire
20 utilization including recycling and energy recovery opportunities;
21 5. establishment of a program to provide funds to businesses to devel-
22 op technology that leads to increased markets for waste tires;
23 6. funding of demonstration projects to develop markets for waste
24 tires;
25 7. funding of demonstration and other projects for road base, paving
26 and other civil engineering uses;
27 8. funding research projects which will enhance sustainable waste tire
28 recycling activities;
29 9. study of noncompliant waste tire stockpiles for the presence of
30 mosquitos and other vectors capable of transmitting diseases; and
31 10. development of recommendations to protect public health.
32 § 4. Subparagraph (a) of paragraph 1 of subdivision (c) of section 301
33 of the vehicle and traffic law, as amended by chapter 161 of the laws of
34 1996, is amended and a new paragraph 3 is added to read as follows:
35 (a) A safety inspection shall be made with respect to the brakes[,];
36 steering mechanism[,]; wheel alignment[,]; lights, including but not
37 limited to the lights which are designed and placed on a vehicle for the
38 purpose of illuminating the vehicle's license plates[,]; odometer[,];
39 tire pressure; seat safety belts[,]; shoulder harness safety belts and
40 such other mechanisms and equipment as shall be determined by the
41 commissioner to be necessary for proper and safe operations. Such
42 inspection shall also be made with respect to vehicle identification
43 number. Upon inspection, the mileage appearing on the odometer shall be
44 recorded upon the inspection sticker.
45 (3) Improper tire pressure shall not be reason for failure of the
46 inspection, but, rather, shall be corrected by the inspection station.
47 § 5. This act shall take effect on the one hundred twentieth day after
48 it shall have become a law and shall apply to taxable years beginning
49 on or after January 1, 2003.
50 PART Y
51 Section 1. The opening paragraph and the opening paragraph of the
52 second unlettered paragraph of subdivision 4 of section 19-0320 of the
53 environmental conservation law, as added by chapter 621 of the laws of
54 1998, are amended to read as follows:
S. 1409 73 A. 2109
1 [It shall be a violation of this section to operate] Notwithstanding
2 the provisions of title twenty-one of article seventy-one of this chap-
3 ter, operation of a heavy duty vehicle which, when tested, exceeds emis-
4 sion levels set forth in regulations promulgated pursuant to this
5 section shall be a violation.
6 [Notwithstanding the provisions of title twenty-one of article seven-
7 ty-one of this chapter, the] The following penalties shall apply to any
8 violation found as a result of roadside emissions inspections:
9 § 2. The opening paragraph of subdivision 5 of section 19-0320 of the
10 environmental conservation law, as added by chapter 621 of the laws of
11 1998, is amended to read as follows:
12 [It shall be a violation of this section to operate] Notwithstanding
13 the provisions of title twenty-one of article seventy-one of this chap-
14 ter, operation of any heavy duty vehicle registered or required to be
15 registered in this state without a certificate of inspection resulting
16 from an annual inspection as required by regulations adopted pursuant to
17 this section[. Notwithstanding the provisions of title twenty-one of
18 article seventy-one of this chapter, the] shall be a violation.
19 The following violation structure shall apply to such violations:
20 § 3. The vehicle and traffic law is amended by adding a new section
21 301-b to read as follows:
22 § 301-b. Heavy duty vehicle emissions. 1. It shall be a violation to
23 operate a heavy duty vehicle which, when tested, exceeds emissions
24 levels set forth in section 19-0320 of the environmental conservation
25 law or regulations adopted thereunder. The following penalties shall
26 apply to any violation found as a result of roadside emissions
27 inspections:
28 a. First violation: $700.00
29 Second and subsequent violations: $1300.00.
30 b. The penalties set forth in paragraph a of this subdivision shall be
31 reduced to one hundred fifty dollars for the first violation and five
32 hundred dollars for the second and subsequent violations by the court or
33 administrative tribunal before which the summons or appearance ticket is
34 returnable if the violation set forth in the summons or appearance tick-
35 et is corrected not later than thirty days after the issuance of the
36 summons or appearance ticket and proof of such correction, as defined in
37 paragraph c of this subdivision, is submitted to the court or adminis-
38 trative tribunal. The penalties described in this section shall not
39 apply to vehicles defined by section one hundred forty-two of this chap-
40 ter or owned by a county, town, city, or village for a first violation
41 provided the vehicle is repaired within thirty days of ticket issuance.
42 c. Acceptable proof of repair or adjustment shall be submitted to the
43 court or administrative tribunal on or before the return date of the
44 summons or appearance ticket in a form and manner prescribed by regu-
45 lations adopted pursuant to this section.
46 2. It shall be a violation to operate any heavy duty vehicle regis-
47 tered or required to be registered in this state without a certificate
48 of inspection resulting from an annual inspection as required by the
49 heavy duty vehicle emissions reduction act or regulations adopted there-
50 under. The following violation structure shall apply to such violations:
51 a. First violation: $ 700.00
52 Second and subsequent violations: $1300.00.
53 b. The penalties defined in paragraph a of this subdivision shall be
54 reduced to three hundred fifty dollars for the first violation and seven
55 hundred fifty dollars for second and subsequent violations, provided
56 that the vehicle in question bears a certificate which was valid within
S. 1409 74 A. 2109
1 the last thirty days. The penalties described in this section shall not
2 apply to vehicles defined by section one hundred forty-two of this chap-
3 ter or owned by a county, town, city, or village for a first violation
4 provided the vehicle is inspected within thirty days of ticket issuance.
5 3. Any fines collected for violations of this section shall be depos-
6 ited in the clean air fund, to the credit of the mobile source account
7 in accordance with the provisions of section ninety-seven-oo of the
8 state finance law.
9 § 4. Subdivision 4 of section 97-oo of the state finance law, as
10 amended by chapter 621 of the laws of 1998, is amended to read as
11 follows:
12 4. The mobile source account shall consist of monies collected pursu-
13 ant to section three hundred one-b of the vehicle and traffic law, para-
14 graph two of subdivision (a) of section three hundred five of the vehi-
15 cle and traffic law, any monies collected pursuant to paragraph K of
16 subdivision seven of section four hundred one of the vehicle and traffic
17 law and subdivision four of section 71-2103 of the environmental conser-
18 vation law, and all interest accrued on any such monies deposited into
19 the account.
20 § 5. Section 10 of chapter 621 of the laws of 1998, amending the envi-
21 ronmental conservation law, the public authorities law, the state
22 finance law, the transportation law and the vehicle and traffic law
23 relating to heavy duty vehicle emissions reduction, is amended to read
24 as follows:
25 § 10. This act shall take effect immediately provided that it shall
26 not apply to vehicles defined by section one hundred forty-two of the
27 vehicle and traffic law or vehicles owned by counties, towns, cities, or
28 villages, and vehicles defined by section one hundred four of the vehi-
29 cle and traffic law until June 1, 2000[, and provided further that this
30 act shall expire five years after such effective date].
31 § 6. This act shall take effect immediately and shall be deemed to
32 have been in full force and effect on and after April 1, 2003.
33 PART Z
34 Section 1. Section 44-0101 of the environmental conservation law, as
35 added by chapter 748 of the laws of 1991, is amended to read as follows:
36 § 44-0101. Legislative intent.
37 The Hudson river valley region possesses unique scenic beauty, natural
38 and cultural resources of state and national significance. Efforts
39 including the creation of a state management program for the Hudson
40 estuarine district and fishery, establishment of the [heritage task
41 force] National Heritage Area for the Hudson river valley, establishment
42 of five state designated [urban cultural parks] Heritage Areas in the
43 valley [and], the preparation of numerous local government waterfront
44 revitalization programs in the valley, and the designation of the entire
45 Hudson river as an American Heritage River have been undertaken in
46 recent years to protect and enhance the special places of scenic,
47 cultural and ecological importance. It is the intention of the legisla-
48 ture that these efforts be continued and strengthened under the cooper-
49 ative program of the Hudson river valley greenway in order to continue
50 and advance the state's commitment to the preservation, enhancement and
51 development of the world-renowned scenic, natural, historic, cultural
52 and recreational resources of the Hudson river valley while continuing
53 to emphasize economic development activities and remaining consistent
54 with the tradition of municipal home rule.
S. 1409 75 A. 2109
1 § 2. The opening paragraph and subdivisions 2, 3, 4 and 8 of section
2 44-0103 of the environmental conservation law, the opening paragraph as
3 amended and subdivisions 2, 3, 4 and 8 as added by chapter 748 of the
4 laws of 1991, are amended to read as follows:
5 As used in this article, the following words and terms shall have the
6 following meanings [unless the context indicates another or different
7 meaning or intent]:
8 2. "Compact" or "greenway compact" shall mean the overall greenway
9 plan adopted by the [council] commission pursuant to section [44-0119]
10 44-0113 of this article.
11 [3. "Conservancy" or "greenway heritage conservancy" shall mean the
12 greenway heritage conservancy for the Hudson river valley, a public
13 benefit corporation, reestablished pursuant to section 44-0111 of this
14 article.]
15 4. ["Council"] "Commission" shall mean the Hudson river valley green-
16 way [communities council reenacted] commission enacted pursuant to
17 section 44-0105 of this article.
18 8. "Greenway districts" or "districts" shall mean areas made of neigh-
19 boring communities within the greenway and designated by the [council]
20 commission for the purpose of regional planning.
21 § 3. Section 44-0105 of the environmental conservation law, as added
22 by chapter 748 of the laws of 1991, subdivision 1 as amended by chapter
23 284 of the laws of 1996 and subdivision 3 as amended by chapter 749 of
24 the laws of 1991, is amended to read as follows:
25 § 44-0105. Hudson river valley greenway [communities council]
26 commission.
27 1. The [governor's council on the] Hudson river valley greenway
28 commission is hereby [recreated] created within the executive department
29 [to be the Hudson river valley greenway communities council]. The [coun-
30 cil] commission shall consist of a total of [twenty-seven] thirty voting
31 members. The governor shall appoint [two] three members, one of whom
32 shall be the chairperson. The legislative body of each town, city or
33 village other than the city of New York which is adjacent to the Hudson
34 river may forward the names of a recommended [council] commission
35 appointee to the chief elected official of the county in which it is
36 incorporated. One voting member shall be appointed from among the names
37 forwarded by the towns, cities and villages by the chief elected offi-
38 cial of each of the ten counties of Westchester, Putnam, Dutchess,
39 Columbia, Rensselaer, Albany, Greene, Ulster, Orange and Rockland, and
40 two voting members shall be appointed by the mayor of the city of New
41 York after consultation with the presidents of the boroughs of the Bronx
42 and Manhattan. Two voting members shall be appointed by the temporary
43 president of the senate, one of whom must reside in the countryside and
44 two voting members shall be appointed by the speaker of the assembly,
45 one of whom must reside in the countryside. One voting member shall be
46 appointed by the minority leader of the senate and one voting member
47 shall be appointed by the minority leader of the assembly. Such
48 appointed legislative representatives may designate a duly authorized
49 representative to attend [council] commission meetings and to act in
50 their place. The following [seven] nine members shall be ex officio
51 members: the commissioner, the commissioner of parks, recreation and
52 historic preservation, the secretary of state [and], the commissioners
53 of general services, transportation, agriculture and markets and econom-
54 ic development, the chair of the senate committee on environmental
55 conservation and the chair of the assembly committee on environmental
56 conservation, or their designated representatives [who, to the extent
S. 1409 76 A. 2109
1 practicable, shall be residents of the Hudson valley]. All persons
2 responsible for appointing members of the [council] commission shall be
3 mindful of the importance of assuring adequate representation on the
4 [council] commission of the interests of various municipal entities,
5 conservationists, business owners and operators, persons engaged in
6 agricultural pursuits, minorities and educators. Notwithstanding the
7 foregoing provisions of this subdivision, in the event that there is no
8 vacancy in the membership of the [council] commission and there is no
9 member of the [council] commission who is a member of an organized
10 sporting association, club or society, the membership of the [council]
11 commission shall be increased to [twenty-eight] thirty-one voting
12 members. The [twenty-eighth] thirty-first voting member shall be a
13 representative of the organized sporting community and shall be selected
14 from the population of the Hudson river valley by a vote of the [coun-
15 cil] commission. In the event of a vacancy occurring in the office of
16 any member, such vacancy shall be filled in the same manner as the
17 original appointment. The members of the [council] commission shall
18 serve without compensation, except that members shall be allowed their
19 necessary and actual expenses incurred in the performance of their
20 duties under this article. [Any person other than an ex officio member
21 who serves as a member of the council, shall not serve as a member of
22 the conservancy.] No officer, member or employee of the commission shall
23 receive or may be lawfully entitled to receive any pecuniary profit from
24 the operation thereof except, to the extent available from the fund, for
25 expenses actually and necessarily incurred, including reasonable compen-
26 sation to employees for services in effecting one or more of the
27 purposes set forth in this article.
28 2. The [council] commission shall meet at least once every two months
29 and shall encourage attendance at such meetings of representatives from
30 local governments in the greenway and other interested parties. Copies
31 of the minutes of each meeting with the date of the next scheduled meet-
32 ing shall be made available to interested parties at their request.
33 3. Every state agency and public corporation having jurisdiction of
34 land or water within the greenway or of programs relating to the
35 purposes and goals of this article shall, to the fullest extent practi-
36 cable, offer full cooperation and assistance to the [council] commission
37 in carrying out the provisions of this article.
38 4. Every local agency with programs relating to the greenway may offer
39 assistance to the [council] commission in carrying out the provisions of
40 this article.
41 § 4. Section 44-0107 of the environmental conservation law, as added
42 by chapter 748 of the laws of 1991, subdivisions 7, 9, 11, 13 and 19 as
43 amended and subdivision 22 as added by chapter 749 of the laws of 1991
44 and subdivisions 14, 15 and 23 as amended by chapter 225 of the laws of
45 1995, is amended to read as follows:
46 § 44-0107. Powers and duties of the [council] commission.
47 The [council] commission shall have the power:
48 1. To make by-laws for the management and regulation of its affairs.
49 2. To make and execute contracts and all other instruments necessary
50 or convenient for the exercise of its powers and functions under this
51 article.
52 3. To appoint an executive officer, officers, agents and employees,
53 and prescribe their duties and qualifications and fix their compen-
54 sation.
S. 1409 77 A. 2109
1 4. To utilize, to the extent feasible, the staff and facilities of
2 existing state agencies, pursuant to an allocation to be made by the
3 state division of the budget.
4 5. To contract for professional and technical assistance and advice.
5 6. To contract for and to accept assistance, including but not limited
6 to gifts, grants, or loans of funds or personal property from the feder-
7 al government or any agency or instrumentality thereof, or from any
8 agency or instrumentality of the state, or from any other public or
9 private source and to comply, subject to the provisions of this article,
10 with the terms and conditions thereof. Notwithstanding the provision of
11 section eleven of the state finance law, the [council] commission may
12 accept gifts, grants, devises and bequests, whether conditional or
13 unconditional providing that any gifts, grants, devises and bequests be
14 consistent with greenway criteria.
15 7. To sue on causes of action consistent with the purposes and its
16 responsibilities under this article and with respect to contracts to
17 which it is a party, but not for general enforcement of state or local
18 environmental or planning laws, provided that the right to sue, other
19 than with respect to contracts, to which it is a party, shall be limited
20 to causes of action arising within the boundaries of the greenway; and
21 to be sued.
22 8. To establish and maintain such facilities as may be necessary for
23 the transacting of its business.
24 9. To hold hearings in the exercise of its powers, functions and
25 duties provided for by this article.
26 10. To encourage individuals, corporations, associations, organiza-
27 tions and public agencies to preserve and enhance the natural scenic
28 beauty and heritage of the Hudson river valley and the lands, water,
29 exemplary natural communities, aesthetic and cultural resources of the
30 Hudson river valley, as well as manage and conserve the fish, wildlife
31 and endangered plant and animal species, and to increase public access
32 to the waters of the Hudson river.
33 11. To conduct scientific, environmental, economic, tourism and
34 cultural studies within the valley that are germane to the greenway
35 criteria.
36 [8] 12. To annually [review and update the recommendations of the
37 governor's council on the Hudson river valley and] prepare objectives to
38 advance each of the five greenway criteria: natural and cultural
39 resources protection, regional planning, economic development including
40 agriculture and urban redevelopment, public access and heritage educa-
41 tion.
42 [9] 13. To review and comment as an interested agency during the
43 environmental review process pursuant to article eight of this chapter
44 on proposed actions within the greenway, and upon the filing of a draft
45 environmental impact statement for any such action to require the lead
46 agency to conduct a hearing under article eight of this chapter.
47 [10] 14. To review and comment on capital and long range plans of
48 state agencies as they affect the criteria, objectives and plans of the
49 greenway.
50 [11] 15. To review and comment on actions pursuant to section seven-
51 ty-five of the public lands law within the greenway for their consisten-
52 cy with the public's right and interest in land under water for the
53 purposes of navigation and commerce, fishing, bathing, natural resource
54 conservation, recreation and access to the waters and lands underwater
55 of the state.
S. 1409 78 A. 2109
1 [12. To review and comment upon the annual work plan submitted by the
2 conservancy.
3 13.] 16. To intervene in proceedings before state agencies including
4 the department on matters affecting the Hudson river valley.
5 17. To encourage and assist in the creation of special local improve-
6 ment districts consistent with the purposes of this article.
7 18. To identify land and water areas in the Hudson river valley that
8 are suited for designation as scenic areas under the provisions of arti-
9 cle forty-nine of this chapter and for subsequent development of
10 resource management plans.
11 19. To provide technical assistance to county and local officials,
12 landowners and interested organizations with regard to resource
13 protection, conservation and management of renewable natural resources
14 and preservation methods and techniques, including but not limited to:
15 natural resource inventories, scenic and conservation easements, deed
16 restrictions, local land trust, innovative zoning techniques, establish-
17 ment of heritage areas, historic preservation methods and viewshed anal-
18 ysis.
19 20. To encourage and assist state, county and local governments with
20 the implementation of procedures for identifying and designating crit-
21 ical areas under the state environmental quality review act, and to
22 provide similar support for utilization of scenic impact project review
23 guidelines.
24 21. To help to advance, guide and coordinate on a priority basis the
25 acquisition of land and water areas possessed of scenic, natural,
26 historical, recreational or cultural significance, for the purpose of
27 preserving or enhancing such areas; and to do so in cooperation with
28 appropriate public and private agencies.
29 22. To support the preparation of comprehensive and systematic inven-
30 tories and studies of the natural, scenic, historic, cultural and recre-
31 ational resources of the Hudson river valley and to do so in cooperation
32 with appropriate public and private agencies.
33 23. To provide local governments and the private sector with improved
34 liaison, interpretation and focus relative to a variety of state and
35 federal programs which bear on the Hudson river valley and its shore-
36 lands, including coastal management; wild, scenic and recreational
37 rivers; heritage area; fisheries management; estuarine sanctuaries;
38 areas of national concern; historic preservation; tourism and outdoor
39 recreation; and grants-in-aid.
40 24. To help develop and implement a comprehensive program and plan at
41 the state, county and local levels for resource preservation, renewable
42 natural resource management and enhancement in scenic highway corridors.
43 25. To promote the greenway as a single, tourism destination site in
44 conjunction with the designation and development of the greenway trail.
45 26. To assist in the preservation of farmlands within the greenway
46 for continued agricultural use.
47 27. Notwithstanding any other section of law, the commission may
48 exercise its powers within the county of New York only for the purposes
49 of designating, developing, or causing to be developed a trail pursuant
50 to section 44-0115 of this article. For the purposes of this subdivi-
51 sion, "trail" means a linear corridor or pathway, walkway or bikeway
52 used solely for public transportation and recreation. The commission
53 shall not develop, construct or cause to be developed or constructed any
54 landfill, pier or structure over water located west of the existing
55 bulkhead or shoreline; nor shall the commission develop, construct or
S. 1409 79 A. 2109
1 cause to be developed or constructed any commercial or residential uses
2 on any trail developed pursuant to this subdivision.
3 28. To [jointly] designate and develop [in agreement with the conser-
4 vancy] model greenway projects to demonstrate the implementation of
5 greenway planning and make contracts for assistance to municipalities
6 and nonprofit entities within the greenway therefor.
7 [14] 29. To designate multi-county planning districts or subregions
8 based on environmental, economic and social factors linking counties,
9 cities, towns and villages and the recommendations of municipal offi-
10 cials from such counties and their political subdivisions for the
11 purpose of development of the greenway compact, provided that the areas
12 of Bronx and New York counties designated pursuant to section 44-0109 of
13 this article shall be deemed to be a multi-county planning district and
14 region and shall not be linked with any other county, city, town or
15 village in a multi-county planning district or region.
16 [15] 30. To make recommendations on expanding the geographical area
17 of the greenway to include Washington county and the remainder of Sara-
18 toga county.
19 [16] 31. To encourage individuals, corporations, associations and
20 public entities to protect and preserve the unique resources of the
21 greenway and make grants to municipalities and nonprofit entities within
22 the greenway therefor.
23 [17] 32. To make available or to cause to make available dispute
24 resolution services for conflicts over land use regulation between units
25 of government and/or between interests including development, conserva-
26 tion and neighborhood interests upon request of all parties in dispute.
27 [18] 33. To organize and meet with a committee of county planners
28 within the greenway regarding regional projects and the provision of
29 planning services.
30 [19] 34. To prepare an annual report on the conduct of its activities
31 which shall include a recommended budget for the next year to be sent to
32 the governor and the legislature.
33 [20] 35. To exercise and perform such other powers and duties as
34 shall have been or may be from time to time conferred by law.
35 [21. To utilize the staff and facilities of existing local agencies to
36 the extent that local agencies make them available.
37 22.] 36. To whenever in the opinion of the commission it would be in
38 the public interest, after prior approval of the director of the budget,
39 request the temporary assignment and transfer of certain employees of
40 any board, commission, agency or department of the state or its poli-
41 tical subdivisions, and said board, commission, agency or department, if
42 in its opinion such transfer will not interfere with the performance of
43 its duties and functions may make such assignment and transfer of said
44 employees to the commission. Such assignment and transfer or extension
45 thereof shall not in any way affect the civil service status, continuity
46 of service, retirement plan status, right to compensation, grade or
47 compensation or other rights or privileges of any employee so trans-
48 ferred.
49 37. To carry out all authorities and duties imposed by the Hudson
50 River Valley National Heritage Area Act of 1996, PL - 104 - 333.
51 38. To take any actions necessary to carry out the functions, powers
52 and duties imposed by this article.
53 [23] 39. To purchase the maximum insurance coverage practicable and
54 affordable from revenues in the fund, to be effective upon the adoption
55 by a community of a regional plan, from any duly authorized insurer in
56 this state, against any liability of any participating community or its
S. 1409 80 A. 2109
1 agents that may result from its acquisition of land, consistent with its
2 regional plan, or the adoption or implementation of any land use control
3 including, but not limited to, a zoning law or ordinance; provided,
4 however, such insurance shall not apply to any such claim that results
5 from the intentional wrongdoing, recklessness, gross negligence or an
6 unlawful discriminatory practice as provided in subdivisions two, two-a,
7 three-b, four, paragraphs (a) and (b) of subdivision five and subdivi-
8 sions six, seven, fourteen and eighteen of section two hundred ninety-
9 six of the executive law and 42 U.S.C. § § 1981, 1983 by such community
10 or its agents. Except with respect to New York city, the [council]
11 commission shall purchase such insurance and begin coverage upon the
12 adoption by a community of a regional plan, and maintain such insurance
13 for all participating communities. Nothing herein shall require the
14 [council] commission to purchase or provide coverage for New York city.
15 40. To enforce that no officer, member or employee of the commission
16 shall receive or may be lawfully entitled to receive any pecuniary
17 profit from the operation thereof except, to the extent available from
18 the fund, for expenses actually and necessarily incurred, including
19 reasonable compensation to employees for services in effecting one or
20 more of the purposes set forth in this article.
21 § 5. Section 44-0109 of the environmental conservation law, as amended
22 by chapter 225 of the laws of 1995, is amended to read as follows:
23 § 44-0109. Designation.
24 The Hudson river valley greenway is hereby designated to include the
25 counties, including all cities, towns and villages therein, of Westches-
26 ter, Rockland, Orange, Putnam, Dutchess, Ulster, Columbia, Greene, Alba-
27 ny, Rensselaer and in Saratoga county, the town and village of Water-
28 ford; provided the greenway shall not include any area of Greene and
29 Ulster counties within the Catskill park as defined in subdivision two
30 of section 9-0101 of this chapter. In addition, in the city of New York
31 the greenway shall include the areas of Bronx and New York counties that
32 are both adjacent to the Hudson River and included as of the effective
33 date of this section within the boundaries of such city's waterfront
34 revitalization program prepared pursuant to article forty-two of the
35 executive law. For purposes of the powers and duties of the [council and
36 conservancy] commission regarding the Hudson river valley, such powers
37 and duties shall be limited to the geographic area of the greenway as
38 designated in this section.
39 § 6. Sections 44-0111, 44-0113, and 44-0117 of the environmental
40 conservation law are REPEALED.
41 § 7. Section 44-0115 of the environmental conservation law, as added
42 by chapter 748 of the laws of 1991, subdivision 3 as amended by chapter
43 749 of the laws of 1991 and subdivision 4 as added by chapter 412 of the
44 laws of 1993, is amended to read as follows:
45 § [44-0115] 44-0111. State agency reports and consistency.
46 1. The [council] commission in carrying out its functions and respon-
47 sibilities under this article, shall consult with, cooperate with, and,
48 to the maximum extent practicable, coordinate its activities with other
49 interested state agencies.
50 2. The following officers of state agencies with program responsibil-
51 ities that affect aspects of the greenway criteria shall prepare and
52 submit to the [council] commission a program statement which shall
53 detail actions in the areas of planning, development, use, assistance
54 and regulation that can support and assist or would conflict with the
55 establishment and management of the greenway including the compact and
56 development of the trail:
S. 1409 81 A. 2109
1 a. commissioner of the office of parks, recreation and historic pres-
2 ervation regarding the state historic preservation program, the state
3 [urban cultural park] Heritage Area program, state parks within the
4 greenway, outdoor recreation and trail planning;
5 b. commissioner of economic development regarding the state tourism
6 program including the identification of potential tourism destination
7 areas within the greenway and recommendations for a system of interac-
8 tive information outlets throughout the greenway and the impact of
9 greenway criteria on economic development activities;
10 c. commissioner of environmental conservation regarding the management
11 of natural resources including plants, fish and wildlife and natural
12 communities and protecting environmental quality;
13 d. commissioner of transportation regarding access and transportation;
14 e. secretary of state regarding the coastal zone management program
15 and other planning programs administered by the department of state;
16 f. commissioner of the office of general services regarding the
17 stewardship and disposition of state property; and
18 g. the commissioner of agriculture and markets regarding the contrib-
19 ution of agricultural activities and programs to greenway criteria.
20 Each such officer shall annually review such statements and submit
21 revisions and updates to the [council] commission as appropriate.
22 3. After the compact is in effect, any state agency conducting, fund-
23 ing or approving activities directly affecting greenway resources shall,
24 to the fullest extent practicable, consult with, cooperate with, and
25 coordinate its activities with the [council] commission and the appro-
26 priate participating community. Any such state agency shall conduct or
27 support such activities in a manner which is, to the maximum extent
28 practicable, consistent with the compact in addition to requirements of
29 other laws, including those of article forty-two of the executive law.
30 The compact shall be incorporated as part of the reviews of actions
31 pursuant to the state environmental quality review act as provided in
32 article eight of this chapter and the New York state historic preserva-
33 tion act of 1980. For purposes of section 8-0113 of this chapter, the
34 commissioner shall incorporate consideration of the greenway in rules
35 and regulations adopted pursuant to such section. The [council] commis-
36 sion shall review and comment in writing upon the statement and effects
37 on the greenway program, made pursuant to section 8-0109 of this chapter
38 and section 14.09 of the parks, recreation and historic preservation
39 law.
40 4. Nothing in this article shall preempt the authority and responsi-
41 bilities of the department pursuant to article eleven of this chapter.
42 § 8. Section 44-0119 of the environmental conservation law, as added
43 by chapter 748 of the laws of 1991, subdivisions 1, 2, 8, 9 and 11 as
44 amended by chapter 412 of the laws of 1993, subdivisions 3 and 7 as
45 amended and subdivisions 4-a and 4-b as added by chapter 225 of the laws
46 of 1995, subdivision 5 as amended and subdivision 10 as added and subdi-
47 visions 12 and 13 as renumbered by chapter 749 of the laws of 1991, is
48 amended to read as follows:
49 § [44-0119] 44-0113. Greenway compact.
50 1. The [council] commission shall guide and support a cooperative
51 planning process to establish a voluntary regional compact among the
52 counties, cities, towns and villages of the greenway to further the
53 recommended criteria of natural and cultural resource protection,
54 conservation and management of renewable natural resources, regional
55 planning, economic development, public access and heritage education.
S. 1409 82 A. 2109
1 2. [Initially, the council] The commission shall offer technical
2 assistance [from the conservancy and state agencies] to the riverside
3 communities in attaining the goal of establishing and having maximum
4 effective implementation of local planning and zoning through natural
5 and cultural resources inventories, the adoption of a comprehensive
6 zoning ordinance or local law, master plan, site plan and subdivision
7 plat review consistent with the greenway criteria. The [council] commis-
8 sion shall also encourage the use of cluster zoning, historic preserva-
9 tion ordinances, transfer of development rights, conservation easements,
10 designation of critical environmental areas and other zoning techniques
11 where appropriate to attain local planning and environmental objectives
12 and participation in the coastal management program and the [state urban
13 cultural park] state heritage area program. The [council and the
14 conservancy] commission may [each, consistent with their respective
15 responsibilities as provided in this article,] enter into contracts not
16 to exceed fifty percent of project cost with riverside communities and
17 in consultation with appropriate state agencies for purposes of adminis-
18 trating grants pursuant to this subdivision including, but not limited
19 to, grants to conduct natural and cultural resources inventories,
20 prepare or update a master plan, a zoning ordinance, a transfer of
21 development rights ordinance, a local government waterfront revitaliza-
22 tion program, [an urban cultural park] a heritage area feasibility study
23 or management plan or a tourism development feasibility study or plan.
24 Any community which receives a grant pursuant to this subdivision may,
25 at the discretion of the [council or the conservancy] commission,
26 contribute its fifty percent of the project cost in the form of an in
27 kind or other non-monetary contribution.
28 3. [Not later than four years after the effective date of this arti-
29 cle, the council] The commission shall convene meetings of the chief
30 elected officials of counties, cities, towns and villages or their
31 designated representatives for each of the subregional districts desig-
32 nated by the [council] commission. Such officials in each district
33 shall organize to prepare, or cause to be prepared [within twenty-four
34 months], a comprehensive regional plan for their district to be submit-
35 ted to the [council] commission. The [conservancy] commission shall
36 offer technical assistance in preparation of such plans and amendments
37 thereof. Within funds available therefor, the [council] commission shall
38 grant funds to meet the cost of each regional plan and amendments there-
39 of. Each such regional plan shall address the greenway criteria and the
40 objectives adopted by the [council] commission by provisions including,
41 but not limited to, identifying developments of regional impact and
42 areas of regional concern including, but not limited to identifying
43 necessary public facilities and infrastructure consistent with such
44 criteria and objectives and providing for the voluntary adoption by
45 action of a local legislative body and implementation of relevant
46 provisions by each participating county, city, town and village. The
47 [council] commission shall review each regional plan for its consistency
48 with the greenway criteria and objectives and to assure that the
49 regional plans conform to establish an overall greenway compact. Upon
50 finding such consistency and conformance, the [council] commission shall
51 approve the regional plan and, upon approving all the regional plans,
52 shall produce an overall greenway plan to be known as the compact. If
53 the local officials in any district fail to produce a regional plan for
54 their district or submit such plan which the [council] commission cannot
55 approve, the [council] commission may prepare or cause to be prepared a
56 district plan which cities, towns and villages in such district may
S. 1409 83 A. 2109
1 voluntarily adopt by local law to become participating communities. The
2 [council's] commission's actions shall not be inconsistent with the
3 requirements of article forty-two of the executive law in approving any
4 regional plan.
5 4. Upon approval by the [council] commission of a regional plan, each
6 county, city, town or village within the district for which the plan was
7 prepared and which adopted the plan by its local legislative body shall
8 become a participating community in the greenway compact by adopting the
9 regional plan as provided in such plan.
10 4-a. Notwithstanding any other provision of this article, the mayor of
11 the city of New York may submit those portions of such city's waterfront
12 revitalization program, prepared pursuant to article forty-two of the
13 executive law and adopted through the process for the adoption and
14 amendment of plans contained in the charter of such city, as such
15 program applies to areas within the greenway, as the regional plan for
16 the region comprised of the areas of Bronx and New York counties desig-
17 nated pursuant to section 44-0109 of this article. The mayor of such
18 city may submit amendments to such regional plan adopted through the
19 process for the adoption and amendment of plans contained in the charter
20 of such city. Any such plan or amendment thereof submitted pursuant to
21 this subdivision shall be deemed to have been approved pursuant to this
22 section and, upon submission of such plan, the areas of the city of New
23 York designated pursuant to section 44-0109 of this article and which
24 are also included within such plan shall be deemed to be a participating
25 community and, unless otherwise specified, the mayor of such city shall
26 exercise the authority granted to such participating community. Solely
27 for purposes of subdivision five of this section the plan submitted by
28 the city of New York pursuant to this section and any amendments thereto
29 shall not be deemed a generic environmental impact statement or regional
30 plan.
31 4-b. Nothing contained in this article shall be deemed to affect,
32 impair or supersede the provisions of any city charter, local law, rule
33 or other local requirements and procedures heretofore or hereafter
34 adopted, including, but not limited to, any such provisions relating to
35 the zoning and use of land.
36 5. A regional plan prepared consistent with the procedures of section
37 8-0109 of this chapter relating to the preparation and contents of an
38 environmental impact statement shall be considered a generic environ-
39 mental impact statement. Actions proposed in conformance with the condi-
40 tions and thresholds established in such regional plan will require no
41 further compliance with article eight of this chapter.
42 6. Notwithstanding any other provision of law, any state agency may
43 provide in implementing a ranking system for allocating funds for
44 infrastructure, land acquisition or park assistance projects a prefer-
45 ence not to exceed the equivalent of an advantage of five percent for
46 such projects which are identified in a regional plan approved pursuant
47 to this section.
48 7. For each such participating community there shall be indemnity from
49 the state in the event of legal actions brought against the community or
50 its agents that may result from the community's acquisition of land
51 consistent with its regional plan or the adoption or implementation of
52 any land use control including, but not limited to, a zoning law or
53 ordinance. Such indemnity shall not apply to the counties of New York
54 and Bronx for such legal actions brought as a result of New York City's
55 adoption of a regional plan or amendments thereto pursuant to subdivi-
56 sion four-a of this section. Such indemnity shall apply to the extent
S. 1409 84 A. 2109
1 that any such claim exceeds the insurance coverage obtained by the
2 [council] commission pursuant to subdivision [twenty-three] thirty-nine
3 of section 44-0107 of this article; provided, however, such indemnity
4 shall not apply to any such claim that results from intentional wrongdo-
5 ing, recklessness, gross negligence or an unlawful discriminatory prac-
6 tice as provided in subdivisions two, two-a, three-b, four, paragraphs
7 (a) and (b) of subdivision five and subdivisions six, seven, fourteen
8 and eighteen of section two hundred ninety-six of the executive law and
9 42 U.S.C. § § 1981, 1983 by such community or its agents. In any claim
10 against a participating community of unlawful discriminatory practice,
11 the attorney general shall not represent the defendant or defendants;
12 provided, however, that if the plaintiff is not the prevailing party,
13 the defendant or defendants shall be reimbursed by the state for all
14 reasonable attorneys' fees and litigation expenses incurred in the
15 defense of the action.
16 8. Pursuant to a chapter of the laws of New York to be enacted,
17 authority shall be granted for a community to utilize other innovative
18 zoning techniques in carrying out the compact.
19 9. In addition to any other funds available from the state, partic-
20 ipating communities and nonprofit entities designated by such communi-
21 ties shall be eligible for capital, program and planning matching grants
22 from the [council and the conservancy] commission including, but not
23 limited to grants for municipal historic preservation projects to
24 acquire, restore or rehabilitate property listed on the state or
25 national registers of historic places or for educational programs
26 related to such historic places, municipal park projects for the acqui-
27 sition, development or improvement of recreational facilities or the
28 acquisition of land for open space conservation and management of renew-
29 able natural resources and natural resource protection including the
30 preservation of endangered species and their natural communities, water-
31 front revitalization projects to acquire land for public access to the
32 Hudson river or to protect river resources or to clear waterfront sites
33 for public or private water dependent uses or to develop, improve or
34 rehabilitate water dependent or waterfront facilities including wharfs
35 and piers, consistent with a local waterfront revitalization program,
36 [urban cultural park] Heritage Area projects for planning, program,
37 acquisition or development consistent with the purposes of article thir-
38 ty-five of the parks, recreation and historic preservation law, tourism
39 marketing projects, development and commercial revitalization and commu-
40 nity development programs and projects, natural resources inventories,
41 agriculture preservation projects and public and private infrastructure
42 improvement related to the development of the greenway trail, from money
43 appropriated from the Hudson river valley greenway fund. The state share
44 of the cost of such projects shall not exceed fifty percent of the total
45 project cost. Such grants shall be made by the [council and the conser-
46 vancy] commission consistent with [their respective] its responsibil-
47 ities as provided in this article. The [council and conservancy] commis-
48 sion shall enter into contracts with participating communities and in
49 consultation with appropriate state agencies for the purpose of adminis-
50 tering these grants.
51 10. The [council and conservancy] commission shall create a committee
52 comprised of three members [from each] who shall establish a procedure
53 by which other grants not delineated herein, which are consistent with
54 the greenway criteria, shall be made.
55 11. Notwithstanding any other provision of law, participating communi-
56 ties shall be eligible to take part in and receive grants and loans from
S. 1409 85 A. 2109
1 the urban development corporation's urban and community development
2 program and regional economic development program.
3 12. The [council] commission may, after holding a public hearing in
4 the appropriate district, withdraw its approval of a regional plan where
5 it finds that there has been a significant failure to implement such
6 plan by a majority of the participating counties, cities, towns and
7 villages within the district. When approval has been withdrawn from a
8 regional plan, the communities therein may not have the benefits of
9 participating communities pursuant to subdivisions five through nine of
10 this section. The [council] commission shall report such withdrawal of
11 approval to the governor and the legislature stating the reasons for
12 such action consistent with subdivisions one through six of this
13 section.
14 13. The [council] commission may promulgate rules and regulations
15 providing for maintaining and updating the compact.
16 § 9. Section 44-0121 of the environmental conservation law, as added
17 by chapter 748 of the laws of 1991 and the opening paragraph of subdivi-
18 sion 1 as amended by chapter 225 of the laws of 1995, is amended to read
19 as follows:
20 § [44-0121] 44-0115. Greenway trail.
21 1. The [conservancy] commission shall designate and develop or cause
22 to be developed a trail or pathway system consistent with the greenway
23 criteria connecting the city of New York from the southernmost boundary
24 of the area designated as the greenway to the Erie canal lock two park
25 in the town of Waterford, Saratoga county to be known as the Hudson
26 river valley greenway trail. To the fullest extent practicable, the
27 trail shall:
28 a. be located with direct physical or, if not physical, visual access
29 to the Hudson river;
30 b. be planned for both sides of the Hudson river;
31 c. have segments that can be restricted to non-motorized use;
32 d. utilize existing heritage trails, bikeways, scenic highways, rail-
33 road rights of way and esplanades and make connections with other trails
34 including trails along tributaries of the Hudson river;
35 e. highlight and link existing parks, [urban cultural parks] heritage
36 areas and historic sites;
37 f. provide for interpretive signage and opportunities to experience
38 the unique natural and cultural heritage of the valley;
39 g. reflect the natural and cultural diversity;
40 h. involve state and local agencies and private organizations in the
41 planning, development and maintenance of the trail of the greenway;
42 i. use the services of local school districts and the youth conserva-
43 tion corps to participate in trail development and maintenance;
44 j. have segment management plans prepared for each segment of the
45 trail to assure uniform maintenance and upkeep; and
46 k. have connections to pathways that highlight the character and
47 resources of the countryside communities.
48 2. The greenway trail to the extent practicable shall be completed on
49 or before June first, two thousand five[; provided that the conservancy
50 shall submit a plan for the trail to the governor and legislature within
51 twenty-four months of the effective date of this section and shall to
52 the extent practicable dedicate and open significant sections of the
53 trail on or before June first, two thousand. Planning for the trail
54 shall commence with the council and the conservancy sponsoring a Hudson
55 river valley greenway trail symposium to prepare a plan of action for
56 the planning and development of the trail. Representatives of local
S. 1409 86 A. 2109
1 governments in the greenway, interested nonprofit organizations, repre-
2 sentatives of the state and federal government, planners and landscape
3 architects along with any other interested parties shall be invited to
4 participate in the symposium].
5 3. The department and the office of parks, recreation and historic
6 preservation, the department of transportation and the office of general
7 services are hereby authorized and directed to support and assist in the
8 planning and development of the trail.
9 § 10. The environmental conservation law is amended by adding eight
10 new sections 44-0117, 44-0119, 44-0121, 44-0123, 44-0125, 44-0127,
11 44-0129 and 44-0131 to read as follows:
12 § 44-0117. Transfer of assets and liabilities.
13 All assets and liabilities of the Hudson river valley greenway commu-
14 nities council and the greenway heritage conservancy for the Hudson
15 river valley are hereby transferred to and assumed by the commission.
16 § 44-0119. Transfer of records.
17 All books, papers, records and property pertaining to the Hudson river
18 valley greenway communities council and the greenway heritage conservan-
19 cy for the Hudson river valley shall be transferred to and maintained by
20 the commission.
21 § 44-0121. Completion of unfinished business.
22 Any business or other matter undertaken or commenced by the Hudson
23 river valley greenway communities council and the greenway heritage
24 conservancy for the Hudson river valley pertaining to or connected with
25 their functions, powers, obligations and duties may be conducted or
26 completed by the commission.
27 § 44-0123. Terms occurring in laws, contracts or other documents.
28 Whenever the functions, powers, obligations and duties of the Hudson
29 river valley greenway communities council and the greenway heritage
30 conservancy for the Hudson river valley which are transferred to the
31 commission are referred to or designated in any law, contract or docu-
32 ment such reference or designation shall be deemed to refer to the
33 commission.
34 § 44-0125. Existing rights and remedies preserved.
35 No existing right or remedy of the state, including the Hudson river
36 valley greenway communities council and the greenway heritage conservan-
37 cy for the Hudson river valley, shall be lost, impaired or affected by
38 reason of this article.
39 § 44-0127. Pending actions and proceedings.
40 No action or proceeding pending on the effective date of this article,
41 brought by or against the Hudson river valley greenway communities coun-
42 cil and the greenway heritage conservancy for the Hudson river valley or
43 executive officer thereof shall be affected by any provision of this
44 article, but the same may be prosecuted or defended in the name of the
45 commission or its executive officer. In all such actions and
46 proceedings, the commission, upon application to the court, shall be
47 substituted as a party.
48 § 44-0129. Continuance of rules and regulations.
49 All rules and regulations of the Hudson river valley greenway communi-
50 ties council and the greenway heritage conservancy for the Hudson river
51 valley, pertaining to the functions transferred and assigned by this
52 article to the commission in force at the time of such transfer, assign-
53 ment, assumption or devolution shall continue in force and effect as
54 rules, regulations, acts, determinations and decisions of the commission
55 until duly modified or repealed.
S. 1409 87 A. 2109
1 § 44-0131. Transfer of appropriations heretofore made to the Hudson
2 river valley greenway communities council and the greenway
3 heritage conservancy for the Hudson river valley.
4 All appropriations and reappropriations which shall have been made
5 available to the Hudson river valley greenway communities council and
6 the greenway heritage conservancy for the Hudson river valley or segre-
7 gated pursuant to law, to the extent of remaining unexpected or unencum-
8 bered balances thereof, whether allocated or unallocated and whether
9 obligated or unobligated, shall be transferred to and made available for
10 use and expenditure by the commission of the same purposes for which
11 originally appropriated or reappropriated and shall be payable on vouch-
12 ers certified or approved by the commissioner of taxation and finance,
13 on audit and warrant of the comptroller. Payments of liabilities for
14 expenses of personal service, maintenance and operation which shall have
15 been incurred as of the date of such operations which shall have been
16 incurred as of the date of such transfer, and for liabilities incurred
17 and to be incurred in completing its affairs shall also be made on
18 vouchers certified or approved by the executive officer of the commis-
19 sion, on audit and warrant of the comptroller.
20 § 11. Section 285-b of the agriculture and markets law, as added by
21 chapter 748 of the laws of 1991, subdivision 1 as amended by chapter 412
22 of the laws of 1993 and subdivisions 2 and 3 as amended by section 2 of
23 part Z of chapter 383 of the laws of 2001, is amended to read as
24 follows:
25 § 285-b. Hudson valley agricultural advisory council. 1. The Hudson
26 valley agricultural advisory council shall be appointed by the commis-
27 sioner, and composed of representatives from consumer and producer
28 organizations, county governments, conservation organizations and tour-
29 ism organizations of the Hudson valley region. For the purposes of this
30 section, the term "Hudson valley" shall mean the counties of Albany,
31 Greene, Ulster, Orange, Rockland, Rensselaer, Columbia, Dutchess, Putnam
32 and Westchester. The membership of the council shall consist of no more
33 than eleven persons, who shall be residents of the Hudson valley, and
34 who shall meet at least three times annually. Council members shall
35 serve without pay but shall be reimbursed for allowable and necessary
36 travel expenses.
37 2. The advisory council, in consultation with the Hudson river valley
38 greenway [communities council] commission, the upstate New York tourism
39 council and the downstate New York tourism council, may recommend
40 programs and promotional activities designed to preserve and enhance
41 Hudson valley region tourism and agricultural open space, address issues
42 affecting the viability of agriculture including real property tax poli-
43 cies and promote greater agricultural marketing and promotional opportu-
44 nities for the region's agricultural producers to the department.
45 3. From time to time, but at least every two years, the advisory coun-
46 cil shall issue a report evaluating such programs and promotional activ-
47 ities to be transmitted to the commissioner, the chairperson of the
48 Hudson river valley greenway [communities council] commission, the
49 chairperson of the upstate New York tourism council, and the chairperson
50 of the downstate New York tourism council and, upon request, any other
51 interested party. The advisory council shall also do all other things
52 necessary and proper for the completion of a feasibility study of devel-
53 oping a tour of the Hudson valley to be known as "The Hudson Valley Ag
54 Trail" to highlight the unique and significant agricultural and natural
55 resources of the Hudson valley region.
S. 1409 88 A. 2109
1 § 12. Section 97-n of the state finance law, as added by chapter 748
2 of the laws of 1991, and subdivision 3 as amended by chapter 170 of the
3 laws of 1994, is amended to read as follows:
4 § 97-n. Hudson river valley greenway fund. 1. There is hereby estab-
5 lished in the joint custody of the state comptroller and the commission-
6 er of taxation and finance a special revenue fund to be known as the
7 Hudson river valley greenway fund.
8 2. [The comptroller shall establish two separate and distinct accounts
9 within the fund: the greenway communities council account and the
10 greenway heritage conservancy account.
11 3.] Such fund shall consist of all moneys appropriated for the purpose
12 of such fund and all moneys transferred to such fund pursuant to law.
13 Any interest earned by the investment of moneys in such fund shall be
14 added to such fund, become a part of such fund, and be used for the
15 purpose of such fund.
16 [4.] 3. Moneys of such fund shall be available for appropriation and
17 allocation only to the Hudson river valley greenway [communities council
18 and the greenway heritage conservancy of the Hudson river valley]
19 commission for the purposes of carrying out the provisions of article
20 forty-four of the environmental conservation law.
21 [5.] 4. The moneys of the fund shall be paid out on the audit and
22 warrant of the comptroller on vouchers certified or approved by the
23 [chairman] chairperson of the Hudson river valley greenway [communities
24 council or his duly designated representative from the greenway communi-
25 ties council account and by the chairman of the greenway heritage
26 conservancy from the greenway heritage conservancy account] commission
27 or his or her duly designated representative.
28 [6.] 5. Notwithstanding the provisions of any general or special law,
29 no moneys shall be available from the fund until a certificate of allo-
30 cation and a schedule of amounts to be available therefor shall have
31 been issued by the director of the budget, and a copy of such certif-
32 icate filed with the comptroller. Such certificate may be amended from
33 time to time by the director of the budget and a copy of each such
34 amendment shall be filed with the comptroller.
35 § 13. Subdivision 1 of section 349-cc of the highway law, as amended
36 by section 6 of part Z of chapter 383 of the laws of 2001, is amended to
37 read as follows:
38 1. An advisory board of state agencies with responsibilities related
39 to the designation and management of scenic byways and not-for-profit
40 organizations related to the promotion and development of scenic byways
41 is hereby formed to advise and assist the department in the operation of
42 its scenic byways program. The advisory board shall consist of the
43 secretary of state, and the commissioners of the department of agricul-
44 ture and markets, the department of economic development, and the
45 department of environmental conservation, and the office of parks,
46 recreation and historic preservation or their duly designated represen-
47 tatives. The commissioner shall appoint as members of the advisory board
48 the chief executive officer, or his or her duly authorized represen-
49 tative, of not-for-profit organizations related to the promotion and
50 development of a scenic byway designated pursuant to this article, three
51 representatives of organizations concerned with the preservation of
52 scenic qualities, the motoring public and tourism development and
53 members or representatives of the upstate New York tourism council and
54 of the downstate New York tourism council. The commissioner, or his or
55 her duly designated representative, shall serve as chair. Members of the
56 advisory board shall receive no pay, but shall be eligible to receive
S. 1409 89 A. 2109
1 actual and necessary expenses from their respective agencies, or for the
2 expenses of representatives of organizations related to the promotion
3 and development of a scenic byway, the preservation of scenic qualities,
4 the motoring public and tourism development, from the department. The
5 advisory board shall consult with the Adirondack Park Agency regarding
6 scenic byways within the Adirondack Park. The advisory board shall also
7 consult with the Hudson River Valley [Communities Council] greenway
8 commission regarding scenic byways within the Hudson River Valley Green-
9 way as defined in article forty-four of the environmental conservation
10 law. The advisory board shall consult with the upstate New York tourism
11 council regarding scenic byways in the upstate New York region, and with
12 the downstate New York tourism council regarding scenic byways in the
13 downstate New York region.
14 § 14. Paragraph (g) of subdivision 1 of section 17 of the public offi-
15 cers law, as amended by chapter 749 of the laws of 1991, is amended to
16 read as follows:
17 (g) For the purposes of this section, the term "employee" shall
18 include the members of the board, officers and employees of the [green-
19 way heritage conservancy for the Hudson river valley or the greenway
20 council] Hudson river valley greenway commission.
21 § 15. This act shall take effect April 1, 2003; provided, however,
22 that the amendment made to subdivision 7 of section 44-0119 of the envi-
23 ronmental conservation law by section eight of this act shall not affect
24 the repeal of such subdivision and shall be deemed repealed therewith.
25 PART AA
26 Section 1. The section heading of section 213 of the civil practice
27 law and rules, as amended by chapter 43 of the laws of 1975, is amended
28 and two new subdivisions 9 and 10 are added to read as follows:
29 Actions to be commenced within six years: where not otherwise provided
30 for; on contract; on sealed instrument; on bond or note, and mortgage
31 upon real property; by state based on misappropriation of public proper-
32 ty; based on mistake; by corporation against director, officer or stock-
33 holder; based on fraud; by state based on claims pursuant to subdivision
34 ten of section 27-1313 of the environmental conservation law; for
35 contribution pursuant to subdivision eleven of section 27-1313 of the
36 environmental conservation law.
37 9. an action by the state under authority of subdivision ten of
38 section 27-1313 of the environmental conservation law; the time within
39 which the action must be commenced shall be computed from the initiation
40 of physical on-site construction of the remedial program.
41 10. an action for contribution under authority of subdivision eleven
42 of section 27-1313 of the environmental conservation law; the time with-
43 in which such action must be commenced shall be computed from the later
44 of:
45 a. the date of judgment in any action under any law, state or federal,
46 respecting the costs that are the subject of the claim for contribution;
47 or
48 b. the date of the issuance of an order or agreement by the department
49 of environmental conservation respecting the costs that are the subject
50 of the claim for contribution or respecting activities the conduct of
51 which caused the expenditure of the costs that are the subject of the
52 claim for contribution.
53 § 2. Section 3-0305 of the environmental conservation law is amended
54 by adding a new subdivision 2-a to read as follows:
S. 1409 90 A. 2109
1 2-a. Any other provision of law to the contrary notwithstanding, the
2 commissioner may acquire an "environmental easement", as such term is
3 defined in section 71-3603 of this chapter, only on consent, or as
4 provided for in the eminent domain procedure law but only after the
5 department shall have exercised reasonable efforts to obtain such
6 consent.
7 § 3. Subdivision 2 of section 17-1009 of the environmental conserva-
8 tion law, as amended by section 1 of chapter 442 of the laws of 2001, is
9 amended to read as follows:
10 2. All owners shall register the facility with the department. The
11 department is authorized to assess a fee according to a schedule based
12 on the size and type of facility, not to exceed [two] five hundred
13 [fifty] dollars per facility. Such fee shall be paid at the time of
14 registration or registration renewal. Registration shall be renewed
15 every five years or whenever title to a facility is transferred, which-
16 ever occurs first. In addition to such registration requirements and
17 pursuant to leak detection requirements set forth in section 17-1005 of
18 this title, notwithstanding any other provision of law, rule or regu-
19 lation, the department shall duly notify the facility owner of the
20 requirement for such owner to perform the required tightness test on a
21 petroleum bulk storage tank no less than forty-five days prior to the
22 date of the test expiration on the tank. All fees collected pursuant to
23 this subdivision shall be deposited in the New York environmental
24 protection and spill compensation fund established pursuant to section
25 one hundred seventy-nine of the navigation law[.]; provided, however,
26 that such fees shall be deposited in the remedial program transfer fund
27 in the fiscal year beginning April first, two thousand three, and for
28 each fiscal year thereafter. The owner must submit, with each applica-
29 tion for registration or registration renewal, a five-year fee as
30 follows:
31 Combined Storage Capacity at Facility 5-Year Fee
32 Greater than 1,000 to 2,000 gallons $100 per facility
33 Greater than 2,000 gallons to $300 per facility
34 less than 5,000 gallons
35 5,000 gallons to less than
36 400,000 gallons $500 per facility
37 The department may waive payment of the registration fee for a facili-
38 ty at which the tanks are to be removed or otherwise permanently taken
39 out of service and the facility is the subject of:
40 (a) An "environmental restoration project", as such term is defined in
41 subdivision seven of section 56-0101 of this chapter, implemented by a
42 municipality, the cost of which is payable in part by the state pursuant
43 to a contract authorized by section 56-0503 of this chapter;
44 (b) An "inactive hazardous waste disposal site remedial program", as
45 such term is defined in subdivision three of section 27-1301 of this
46 chapter, implemented by the department, the cost of which is paid by the
47 state according to statute;
48 (c) A "hazardous waste site remediation project", as such term is
49 defined in subdivision nine of section 52-0101 of this chapter, imple-
50 mented by a municipality, the cost of which is payable in part by the
51 state pursuant to a contract authorized by section 52-0303 of this chap-
52 ter;
53 (d) Any remediation implemented pursuant to an order or agreement with
54 the department by any person who is not responsible for the disposal of
55 hazardous waste or the discharge of petroleum according to applicable
56 principles of statutory or common law liability, or who is liable solely
S. 1409 91 A. 2109
1 as a result of ownership or operation of the facility subsequent to the
2 disposal of hazardous waste or the discharge of petroleum; or
3 (e) Any "cleanup and removal", as such term is defined in subdivision
4 four of section one hundred seventy-two of the navigation law, imple-
5 mented by the department, the cost of which is paid by the state accord-
6 ing to statute.
7 § 4. Subdivision 3 and paragraph b of subdivision 4 of section 27-0923
8 of the environmental conservation law, as added by chapter 38 of the
9 laws of 1985, paragraph d of subdivision 3 as added by chapter 512 of
10 the laws of 1986 and paragraph e of subdivision 3 as added by chapter
11 423 of the laws of 1990, are amended to read as follows:
12 3. a. Notwithstanding any provision of this section to the contrary,
13 no special assessment shall be imposed under this section on the
14 resource recovery of any hazardous waste; provided, however, that any
15 materials remaining from resource recovery which are hazardous wastes
16 and which are subsequently disposed of, treated, or incinerated[,] shall
17 be subject to the special assessments imposed by this section. For
18 purposes of this section, resource recovery shall not include the
19 removal of water from a hazardous waste.
20 b. In the case of a fraction of a ton, the special assessments imposed
21 by this section shall be the same fraction of the amount of such special
22 assessment imposed on a whole ton.
23 c. For the purpose of this section, generation of hazardous waste
24 shall not include retrieval or creation of hazardous waste which must be
25 disposed of [due to remediation of an inactive hazardous waste disposal
26 site in New York state as defined in section 27-1301 of this chapter]
27 under an order of or agreement with the department pursuant to title
28 thirteen or title fourteen of this article or under a contract with the
29 department pursuant to title five of article fifty-six of this chapter.
30 d. No portion of the special assessments collected pursuant to this
31 section shall be used for any purpose if such use, under federal law,
32 would preclude the collection of such special assessment.
33 e. Notwithstanding any provision of this section to the contrary, the
34 actual method utilized to dispose of or treat any hazardous waste shall
35 govern the determination of the rate per ton applicable under the
36 special assessments imposed by this section, even if such hazardous
37 waste was designated for removal, removed, stored, or received for
38 disposal or treatment by a method different than the method actually
39 utilized. Where any such special assessment with respect to any hazard-
40 ous waste is reported and paid on the basis of a rate per ton which is
41 greater than the rate per ton applicable to the actual method utilized
42 to dispose of or treat such hazardous waste, the difference between the
43 amount reported and paid and the amount due using the rate per ton
44 applicable to the actual method utilized shall be considered an overpay-
45 ment of such special assessment. The commissioner of taxation and
46 finance shall credit or refund such overpayment in the manner provided
47 and subject to the conditions contained in article twenty-seven of the
48 tax law, as incorporated by subdivision six of this section.
49 b. All moneys collected or received by the department of taxation and
50 finance pursuant to this section shall be deposited daily to the credit
51 of the comptroller with such responsible banks, banking houses, or trust
52 companies as may be designated by the comptroller. Such deposits shall
53 be kept separate and apart from all other moneys in the possession of
54 the comptroller. The comptroller shall require adequate security from
55 all such depositories. Of the revenues collected under this section, the
56 comptroller shall retain in his or her hands such amounts as the commis-
S. 1409 92 A. 2109
1 sioner of taxation and finance may determine to be necessary for refunds
2 under this section and the comptroller shall pay any refunds to which
3 those liable for special assessments shall be entitled under the
4 provisions of this section. The comptroller, after reserving the amount
5 to pay such refunds, shall, on or before the tenth day of each month,
6 pay all special assessments, interest, and penalties collected under
7 this section and remaining to his or her credit in such banks, banking
8 houses, or trust companies at the close of business on the last day of
9 the preceding month into the [hazardous waste] remedial program transfer
10 fund created pursuant to section [ninety-seven-b] ninety-seven-cccc of
11 the state finance law. Within thirty days after each quarterly reporting
12 date, the comptroller shall certify the amount of special assessments
13 under this section deposited in the [hazardous waste] remedial program
14 transfer fund during the preceding quarter and the cumulative amount
15 collected since the start of the current calendar year, and shall submit
16 such certification to the governor and the [chairman] chairperson of the
17 senate finance committee and the [chairman] chairperson of the assembly
18 ways and means committee.
19 § 5. Subdivisions 1, 3 and 4 of section 27-1301 of the environmental
20 conservation law, subdivision 1 as amended by chapter 857 of the laws of
21 1982 and subdivisions 3 and 4 as added by chapter 282 of the laws of
22 1979, are amended and a new subdivision 8 is added to read as follows:
23 1. "Hazardous waste" means a waste which appears on the list or satis-
24 fies the characteristics promulgated by the commissioner pursuant to
25 section 27-0903 of this [chapter and, until, but not after, the promul-
26 gation of such list, a waste or combination of wastes, which because of
27 its quantity, concentration, or physical, chemical or infectious charac-
28 teristics may:
29 a. Cause, or significantly contribute to an increase in mortality or
30 an increase in serious irreversible or incapacitating reversible
31 illness; or
32 b. Pose a substantial present or potential hazard to human health or
33 the environment when improperly treated, stored, transported, disposed
34 or otherwise managed] article and any substance which appears on the
35 list promulgated pursuant to section 37-0103 of this chapter; provided,
36 however, that the term "hazardous waste" does not include:
37 a. Natural gas, natural gas liquids, liquefied natural gas, synthetic
38 gas usable for fuel, or mixtures of natural gas and such synthetic gas;
39 nor
40 b. The residue of emissions from the engine exhaust of a motor vehi-
41 cle, rolling stock, aircraft, vessel, or pipeline pumping station
42 engine; nor
43 c. Source, byproduct, or special nuclear material from a nuclear inci-
44 dent, as those terms are defined in the Atomic Energy Act of 1954, if
45 such release is subject to requirements with respect to financial
46 protection established under section 170 of such act (42 U.S.C. 2210)
47 or, for the purpose of section 104 of the comprehensive environmental
48 response, compensation and liability act of 1980 (42 U.S.C. 9604), or
49 any other response action, any source, byproduct, or special nuclear
50 material from any processing site designated under section 102(a)(1) or
51 302(a) of the Uranium Mill Tailings Radiation Control Act of 1978 (42
52 U.S.C. 7912(a)(1) or 7942(a)); nor
53 d. Petroleum as defined in section one hundred seventy-two of the
54 navigation law, even if appearing on the list promulgated pursuant to
55 section 37-0103 of this chapter.
S. 1409 93 A. 2109
1 3. "Inactive hazardous waste disposal site remedial program" means
2 activities undertaken to eliminate, remove, abate, control, or monitor
3 health and/or environmental hazards or potential hazards in connection
4 with inactive hazardous waste disposal sites or to treat or dispose of
5 wastes and waste contaminated materials from such sites including, but
6 not limited to, grading, contouring, trenching, grouting, capping, exca-
7 vation, transporting, incineration, chemical treatment, biological
8 treatment, or construction of leachate collection and treatment facili-
9 ties. The department may include institutional controls and/or engi-
10 neering controls as components of an inactive hazardous waste disposal
11 site remedial program, but only if the owner of such real property annu-
12 ally submits to the department a written statement by an individual
13 licensed or otherwise authorized in accordance with article one hundred
14 forty-five of the education law to practice the profession of engineer-
15 ing, or by such other expert as the department may find acceptable,
16 certifying under penalty of perjury that the institutional controls and
17 engineering controls employed to remediate such contamination are
18 unchanged from the previous certification and that nothing has occurred
19 that would constitute a violation of any of such controls, and gives
20 access to such real property reasonable under the circumstances to eval-
21 uate continued maintenance of such controls. The department shall estab-
22 lish and maintain a database with relevant information on such controls
23 and shall include such information on its homepage on the internet and
24 make such information available for public inspection at the office of
25 the county clerk or register for each county and at the office of the
26 town clerk for each town in Suffolk and Nassau counties.
27 4. "Person" means an individual, trust, firm, joint stock company,
28 limited liability company, corporation, joint venture, partnership,
29 association, state, municipality, commission, political subdivision of a
30 state, public benefit corporation or any interstate body.
31 a. Such term includes any person owning or operating an inactive
32 hazardous waste disposal site but does not include a person that is a
33 lender that, without participating in the management of such site, holds
34 indicia of ownership primarily to protect the security interest of the
35 person in such site; nor does it include a person that is a lender that
36 did not participate in management of such site prior to foreclosure,
37 notwithstanding that the person forecloses on such site and after fore-
38 closure sells, re-leases (in the case of a lease finance transaction),
39 or liquidates such site, maintains business activities, winds up oper-
40 ations, undertakes in a non-negligent manner remedial actions under the
41 direction of the department, with respect to such site, or takes any
42 other measure to preserve, protect, or prepare such site prior to sale
43 or disposition, if the person seeks to sell, re-lease (in the case of a
44 lease finance transaction), or otherwise divest the person of such site
45 at the earliest practicable commercially reasonable time, on commercial-
46 ly reasonable terms, taking into account market conditions and legal and
47 regulatory requirements. For purposes of this paragraph:
48 (i) the term "participate in management" means actually participating
49 in the management or operational affairs of such site; and does not
50 include merely having the capacity to influence, or the unexercised
51 right to control, such site's operations;
52 (ii) a person that is a lender and that holds indicia of ownership
53 primarily to protect a security interest in such site shall be consid-
54 ered to participate in management only if, while the borrower is still
55 in possession of such site, the person exercises decisionmaking control
56 over the environmental compliance related to such site, such that the
S. 1409 94 A. 2109
1 person has undertaken responsibility for the hazardous waste handling or
2 disposal practices related to such site; or exercises control at a level
3 comparable to that of a manager of such site, such that the person has
4 assumed or manifested responsibility for the overall management of such
5 site encompassing day-to-day decisionmaking with respect to environ-
6 mental compliance; or over all or substantially all of the operational
7 functions (as distinguished from financial or administrative functions)
8 of such site other than the function of environmental compliance;
9 (iii) the term "participate in management" does not include performing
10 an act or failing to act prior to the time at which a security interest
11 is created in such site;
12 (iv) the term "participate in management" does not include holding a
13 security interest or abandoning or releasing a security interest;
14 including in the terms of an extension of credit, or in a contract or
15 security agreement relating to the extension, a covenant, warranty, or
16 other term or condition that relates to environmental compliance; moni-
17 toring or enforcing the terms and conditions of the extension of credit
18 or security interest; monitoring or undertaking one or more inspections
19 of such site; requiring a response action or other lawful means of
20 addressing the release or threatened release of a hazardous waste in
21 connection with such site prior to, during, or on the expiration of the
22 term of the extension of credit; providing financial or other advice or
23 counseling in an effort to mitigate, prevent, or cure default or diminu-
24 tion in the value of such site; restructuring, renegotiating, or other-
25 wise agreeing to alter the terms and conditions of the extension of
26 credit or security interest; exercising forbearance; exercising other
27 remedies that may be available under applicable law for the breach of a
28 term or condition of the extension of credit or security agreement; or
29 conducting in a non-negligent manner a remedial action directly or under
30 the direction of the department, if the actions do not rise to the level
31 of participating in management (within the meaning of subparagraphs (i)
32 and (ii) of this paragraph);
33 (v) the term "extension of credit" includes a lease finance trans-
34 action in which the lessor does not initially select such leased site
35 and does not during the lease term control the daily operations or main-
36 tenance of such site; or that conforms with regulations issued by the
37 appropriate federal banking agency (as defined in 12 USC section 1813)
38 or the superintendent of banks or with regulations issued by the
39 National Credit Union Administrative Board, as appropriate;
40 (vi) the term "financial or administrative function" includes a func-
41 tion such as that of a credit manager, accounts payable officer,
42 accounts receivable officer, personnel manager, comptroller, or chief
43 financial officer, or a similar function;
44 (vii) the terms "foreclosure" and "foreclose" mean, respectively,
45 acquiring and to acquire, such site through purchase at sale under a
46 judgment or decree, power of sale, or nonjudicial foreclosure sale; a
47 deed in lieu of foreclosure, or similar conveyance from a trustee; or
48 repossession, if such site was security for an extension of credit
49 previously contracted; conveyance pursuant to an extension of credit
50 previously contracted, including the termination of a lease agreement;
51 or any other formal or informal manner by which the person acquires, for
52 subsequent disposition, title to or possession of such site in order to
53 protect the security interest of the person;
54 (viii) the term "lender" means an insured depository institution (as
55 defined in 12 USC Section 1813); an insured credit union (as defined in
56 12 USC section 1752); a bank or association chartered under the Farm
S. 1409 95 A. 2109
1 Credit Act of 1971 (12 U.S.C. 2001 et seq.); a leasing or trust company
2 that is an affiliate of an insured depository institution; any person
3 (including a successor or assignee of any such person) that makes a bona
4 fide extension of credit to or takes or acquires a security interest
5 from a nonaffiliated person; the Federal National Mortgage Association,
6 the Federal Home Loan Mortgage Corporation, the Federal Agricultural
7 Mortgage Corporation, or any other entity that in a bona fide manner
8 buys or sells loans or interests in loans; a person that insures or
9 guarantees against a default in the repayment of an extension of credit,
10 or acts as a surety with respect to an extension of credit, to a nonaf-
11 filiated person; and a person that provides title insurance and that
12 acquires such site as a result of assignment or conveyance in the course
13 of underwriting claims and claims settlement;
14 (ix) the term "operational function" includes a function such as that
15 of a facility or plant manager, operations manager, chief operating
16 officer, or chief executive officer; and
17 (x) the term "security interest" includes a right under a mortgage,
18 deed of trust, assignment, judgment lien, pledge, security agreement,
19 factoring agreement, or lease, and any other right accruing to a person
20 to secure the repayment of money, the performance of a duty, or any
21 other obligation by a nonaffiliated person.
22 b. Such term includes any person owning or operating an inactive
23 hazardous waste disposal site but does not include the state of New York
24 or a public corporation which acquired, and thereafter retained without
25 participating in the management of such site, ownership or control
26 involuntarily by virtue of its function as sovereign. Neither the state
27 of New York nor any public corporation shall incur under this chapter
28 any liability as to matters within the jurisdiction of the department as
29 a result of actions taken in response to an emergency created by the
30 release or threatened release of hazardous waste by another person;
31 provided that such actions by the state or public corporation did not
32 constitute reckless, willful, wanton, or intentional misconduct. As used
33 in this paragraph:
34 (i) "public corporation" means a public corporation as defined in the
35 general construction law;
36 (ii) involuntary acquisition of ownership or control includes, but is
37 not limited to, the following:
38 (A) acquisitions by the state or a public corporation in its capacity
39 as sovereign, including acquisitions pursuant to abandonment
40 proceedings, or escheat, or any other circumstance of involuntary acqui-
41 sition in its capacity as sovereign;
42 (B) acquisitions by the state or a public corporation, or its agent,
43 acting as a conservator or receiver pursuant to a clear and direct stat-
44 utory mandate or regulatory authority;
45 (C) acquisitions of assets through foreclosure and its equivalents, or
46 otherwise, by the state or a public corporation in the course of admin-
47 istering a loan, loan guarantee, or loan insurance program;
48 (D) acquisitions by the state or a public corporation pursuant to
49 seizure or forfeiture authority; and
50 (E) acquisitions by the state or a public corporation as the result of
51 tax delinquency proceedings; provided, that such ownership or control is
52 not retained primarily for investment purposes;
53 (iii) "management participation" means that the state or public corpo-
54 ration is actually participating in the management or operation of the
55 property but does not include the mere capacity to influence, ability to
S. 1409 96 A. 2109
1 influence, or unexercised right to control the operation of the proper-
2 ty.
3 Nothing contained in this paragraph affects the applicability of para-
4 graph a of this subdivision in favor of a holder of a security interest
5 according to the terms thereof.
6 c. Such term includes any person owning or operating an inactive
7 hazardous waste disposal site, including a fiduciary; provided, however,
8 that such liability on the part of a fiduciary shall not exceed the
9 assets held in the fiduciary capacity if such person is not liable inde-
10 pendently of such person's ownership as a fiduciary or actions taken in
11 a fiduciary capacity including, but not limited to, the fiduciary's
12 negligently causing or contributing to the release or threatened release
13 of hazardous waste at such site.
14 (i) For purposes of this paragraph:
15 (A) the term "fiduciary" means a person acting for the benefit of
16 another party as a bona fide trustee; executor; administrator; custo-
17 dian; guardian of estates or guardian ad litem; receiver; conservator;
18 committee of estates of incapacitated person; personal representative;
19 trustee (including a successor to a trustee) under an indenture agree-
20 ment, trust agreement, lease, or similar financing agreement, for debt
21 securities, certificates of interest or certificates of participation in
22 debt securities, or other forms of indebtedness as to which the trustee
23 is not, in the capacity of trustee, the lender; or representative in any
24 other capacity that the department, after providing public notice,
25 determines to be similar to the various capacities previously described
26 in this paragraph; and does not include either a person that is acting
27 as a fiduciary with respect to a trust or other fiduciary estate that
28 was organized for the primary purpose of, or is engaged in, actively
29 carrying on a trade or business for profit, unless the trust or other
30 fiduciary estate was created as part of, or to facilitate, one or more
31 estate plans or because of the incapacity of a natural person or a
32 person that acquires ownership or control of a property with the objec-
33 tive purpose of avoiding liability of the person or any other person.
34 (B) the term "fiduciary capacity" means the capacity of a person in
35 holding title to a property, or otherwise having control of or an inter-
36 est in a property, pursuant to the exercise of the responsibilities of
37 the person as a fiduciary.
38 (ii) Nothing in this paragraph affects the rights or immunities or
39 other defenses that are available under law that are applicable to a
40 person subject to this subdivision; or creates any liability for a
41 person or a private right of action against a fiduciary or any other
42 person.
43 (iii) Nothing in this paragraph applies to a person if that person
44 acts in a capacity other than that of a fiduciary or in a beneficiary
45 capacity and in that capacity, directly or indirectly benefits from a
46 trust or fiduciary relationship; or is a beneficiary and a fiduciary
47 with respect to the same fiduciary estate and, as a fiduciary, receives
48 benefits that exceed customary or reasonable compensation, and inci-
49 dental benefits, permitted under other applicable law.
50 (iv) This paragraph does not preclude a claim under this chapter
51 against the assets of the estate or trust administered by the fiduciary;
52 or a nonemployee agent or independent contractor retained by a fiduci-
53 ary.
54 d. Such term includes any person owning or operating an inactive
55 hazardous waste disposal site, including an industrial development agen-
56 cy created under the general municipal law, other than one that holds
S. 1409 97 A. 2109
1 bare legal title to such site; has not participated with any party
2 responsible under law for the remediation of contamination in, on, or
3 from such site to attempt to have such a party avoid its remedial
4 liability; has not exercised any contractual rights it may have or had,
5 if any, under the lease, guarantee, or any other financing agreement
6 pursuant to which the industrial development agency would assume control
7 over the actual operation of the site; and has not taken possession or
8 control of the site. Nothing in this paragraph affects the rights or
9 immunities or other defenses that are available under law that are
10 applicable to an industrial development agency; or creates any liability
11 for a person or a private right of action against an industrial develop-
12 ment agency or any other person.
13 8. a. Any other provision of law to the contrary notwithstanding, no
14 not-for-profit corporation shall incur any liability for any statutory
15 claims of the state under this title as an owner or operator of an inac-
16 tive hazardous waste disposal site or a person responsible for the
17 disposal of hazardous waste at or onto such site, if such site is or
18 will be used for community purposes and if such not-for-profit corpo-
19 ration acquired and retains such site without participating in the
20 development of such site.
21 b. The exemption from liability set forth in this section shall not
22 limit any other defense, indemnification or privilege under local, state
23 or federal law.
24 c. When used in this section:
25 (i) "Community purposes" shall mean an activity that the local munici-
26 pal corporation has certified as being undertaken by the not-for-profit
27 corporation acting on behalf of such municipal corporation, or as being
28 in the public interest, including without limitation, creation of new
29 permanent jobs, construction or renovation of affordable housing,
30 historic preservation activities, provision of new or revitalized open
31 space, or establishment of other community facilities such as medical
32 facilities or community centers; provided, that nothing herein contained
33 shall be deemed to establish a relationship of principal and agent
34 between the municipality and the not-for-profit corporation. Such
35 certification may be withdrawn at any time if the municipality deter-
36 mines that the certification was made as a result of a misrepresentation
37 of a material fact by the not-for-profit corporation;
38 (ii) "Participating in development" means carrying out, or causing or
39 permitting the carrying out, of any above-grade improvements to the
40 affected site; but does not include licensing, regulatory oversight, or
41 the mere capacity to regulate or influence, or the unexercised right to
42 control the operation of the site. For purposes of this section, partic-
43 ipating in development does not include:
44 (A) having the capacity to influence management of such site;
45 (B) having the unexercised right to control such site or operations
46 thereof;
47 (C) holding, abandoning or releasing a security interest or tax lien
48 on such site;
49 (D) including a condition relating to environmental compliance in a
50 contract, permit, license or security agreement;
51 (E) monitoring the terms and conditions of an agreement;
52 (F) monitoring one or more inspections of such site;
53 (G) participating in the marketing or determination of creditworthi-
54 ness or income eligibility of prospective homeowners;
55 (H) participating in development and allocation of sources and uses of
56 project funding;
S. 1409 98 A. 2109
1 (I) exercising other remedies available under applicable laws;
2 (J) applying for federal or state statutory site benefits.
3 d. The exemption under this section shall not apply if any member,
4 officer or director of the not-for-profit corporation is or was an offi-
5 cer or director of any person responsible for the site under applicable
6 principles of statutory or common law liability, or any subsequent owner
7 of such site, whether by election, designation, ex officio or in any
8 other capacity or manner.
9 e. Notwithstanding any other subdivision of this section, a not-for-
10 profit corporation shall be subject to:
11 (i) all summary abatement powers of the commissioner set forth in
12 section 71-0301 of this chapter; and
13 (ii) liability as an owner or operator of a site or a person responsi-
14 ble for the disposal of hazardous waste at or onto such site, if the
15 not-for-profit corporation by willful or intentional misconduct or
16 negligence allows a release of hazardous waste onto other property.
17 f. The exemptions from liability provided by this section shall
18 continue to be effective with respect to a not-for-profit corporation's
19 ownership of an affected site only if the not-for-profit corporation
20 which takes possession of such site seeks to sell, lease or otherwise
21 divest itself of such site within five years or at the earliest practi-
22 cable and reasonable time taking into account the market conditions,
23 legal and regulatory requirements, zoning and planned usage of the site,
24 and the best interest of the not-for-profit corporation and the public,
25 including the surrounding community. Sale of the site shall be conclu-
26 sive proof of the not-for-profit corporation's reasonable efforts to
27 divest itself of the site. If the not-for-profit corporation is unable
28 to divest itself of the site within five years of the date on which the
29 remediation of the site is completed, such not-for-profit corporation
30 shall provide a report annually to the municipal corporation in which
31 such site is located to establish that its efforts to divest itself of
32 such site within the preceding twelve months have been diligent. Such
33 report shall document the actions of the not-for-profit corporation to
34 comply with this subdivision, market conditions, the effects, if any, of
35 contamination on the site's marketability, and the reasonable steps
36 taken by such not-for-profit corporation to render such site marketable.
37 g. Any not-for-profit corporation that has taken possession of an
38 affected site shall notify the department of any release of hazardous
39 waste or petroleum within ten days of obtaining actual knowledge of such
40 release, unless a shorter notice period is required under any other
41 provision of law, in which case the shorter notice period controls.
42 Failure to notify the department within the ten day or shorter notifica-
43 tion period shall result in the loss of the exemption set forth in this
44 section.
45 h. The exemptions from liability provided by this section shall not be
46 assignable to any third party.
47 § 6. Subdivision 1 of section 27-1303 of the environmental conserva-
48 tion law, as added by chapter 282 of the laws of 1979, is amended to
49 read as follows:
50 1. [Each] a. For a period of one year after the effective date of
51 the chapter of the laws of two thousand three designating and amending
52 this paragraph, each county shall, for the purpose of locating inactive
53 hazardous waste disposal sites, as that term was defined on January
54 first, two thousand three, survey its jurisdiction to determine the
55 existence and location of suspected inactive hazardous waste disposal
56 sites and shall[, within four months of the effective date of this
S. 1409 99 A. 2109
1 title,] annually thereafter submit a report to the department describing
2 the location of each such suspected site and the reasons for such suspi-
3 cion.
4 b. Commencing one year after the effective date of this paragraph,
5 each county shall, for the purpose of locating inactive hazardous waste
6 disposal sites, survey its jurisdiction to determine the existence and
7 location of suspected inactive hazardous waste disposal sites and shall
8 annually thereafter submit a report to the department describing the
9 location of each such suspected site and the reasons for such suspicion.
10 § 7. Section 27-1305 of the environmental conservation law, as amended
11 by chapter 857 of the laws of 1982, subdivision 1, paragraphs n and o of
12 subdivision 3 as amended and paragraph p of subdivision 3 as added by
13 chapter 476 of the laws of 2000, paragraph b of subdivision 3 as amended
14 by chapter 140 of the laws of 1991, the opening paragraph of paragraph b
15 and paragraph f of subdivision 4 as amended by chapter 649 of the laws
16 of 1988, paragraph c of subdivision 4 as amended by chapter 416 of the
17 laws of 1993, paragraph e of subdivision 4 as added by chapter 38 of the
18 laws of 1985, and subdivision 6 as amended by chapter 484 of the laws of
19 1994, is amended to read as follows:
20 § 27-1305. Reports by the department; registry of sites.
21 1. [The department shall, on or before May fifteenth, nineteen hundred
22 eighty, and annually thereafter on the first day of May of each succeed-
23 ing year, transmit a report to the legislature and the governor identi-
24 fying every inactive hazardous waste disposal site in the state known to
25 the department. Such reports shall reflect information available to the
26 department as of March thirty-first of each year. A copy of such report
27 shall be sent to the department of health and the chief executive offi-
28 cer of every county. Upon identification of an inactive hazardous waste
29 disposal site not included in the report for the immediately preceding
30 year, the department shall notify in writing the chief executive officer
31 of each county, city, town and village and the public water supplier
32 which services the area in which such site is located that such site has
33 been so identified. For the purposes of this section, "water supplier"
34 shall mean any public water system as such term is defined for the
35 purposes of the sanitary code of the state of New York as authorized by
36 section two hundred twenty-five of the public health law.
37 2. Each annual report shall include but need not be limited to the
38 following information with respect to each site:
39 a. A general description of the site, which shall include the name, if
40 any, of the site, the address of the site, the type and quantity of the
41 hazardous waste disposed of at the site and the name of the current
42 owners of the site;
43 b. An assessment by the department of any significant environmental
44 problems at and near the site;
45 c. An assessment prepared by the department of health of (i) any seri-
46 ous health problems in the immediate vicinity of the site and (ii) any
47 health problems deemed by the department of health to be related to
48 conditions at the site;
49 d. The status of any testing, monitoring or remedial actions in
50 progress or recommended by the department;
51 e. The status of any pending legal actions and any federal, state or
52 local government permits or approvals concerning the site; and
53 f. An assessment of the relative priority of the need for action at
54 each site to remedy environmental and health problems resulting from the
55 presence of wastes at such site.
S. 1409 100 A. 2109
1 3.] The department shall maintain and make available for public
2 inspection, either at each of its regional offices and regional sub-off-
3 ices, at the office of the county clerk or register for each county and
4 at the office of the town clerk for each town in Suffolk and Nassau
5 counties, or on its homepage on the internet, a registry of inactive
6 hazardous waste disposal sites in such region or, with respect to the
7 office of the county clerk or register, in such county. The department
8 shall take all necessary action to ensure that the registry provides a
9 complete and up-to-date listing of all such sites within the region.
10 Such registry shall include but need not be limited to those items among
11 the following which the commissioner determines to be necessary:
12 a. [The] A description of the sites [included in the latest report by
13 the department to the governor and legislature] consisting of:
14 (i) a general description of the site, which shall include the name,
15 if any, of the site, the address of the site, the type and quantity of
16 the hazardous waste disposed of at the site and the name of the current
17 owners of the site;
18 (ii) an assessment by the department of any significant environmental
19 problems at and near the site;
20 (iii) an assessment prepared by the department of health of any seri-
21 ous health problems in the immediate vicinity of the site and any health
22 problems deemed by the department of health to be related to conditions
23 at the site;
24 (iv) the status of any testing, monitoring or remedial actions in
25 progress or recommended by the department;
26 (v) the status of any pending legal actions and any federal, state or
27 local government permits or approvals concerning the site; and
28 (vi) an assessment of the relative priority of the need for action at
29 each site to remedy environmental and health problems resulting from the
30 presence of wastes at such site;
31 b. Address and site boundaries including tax map parcel numbers or
32 section, block and lot numbers;
33 c. Time period of use for disposal of hazardous waste;
34 d. Name of the current owner and operator and names of any past and
35 reported owners and operators during the time period of use for disposal
36 of hazardous waste;
37 e. Names of persons responsible for the generation and transportation
38 of hazardous waste disposed of;
39 f. Type and quantity of hazardous waste disposed of;
40 g. Manner of disposal of hazardous waste;
41 h. Nature of soils at the site;
42 i. Depth of water table at the site;
43 j. Location, nature and size of aquifers at the site;
44 k. Direction of present and historic groundwater flows at the site;
45 l. Location, nature and size of all surface waters at and near the
46 site;
47 m. Levels of contaminants, if any, in groundwater, surface water, air
48 and soils at and near the site resulting from hazardous wastes disposed
49 of at the site or from any other cause and areas known to be directly
50 affected or contaminated by wastes from the site;
51 n. As determined by the department of health, current quality of all
52 drinking water drawn from or distributed through the area in which the
53 site is located when the department of health determines that water
54 quality may have been affected by the site in question and any known
55 change in the quality of such drinking water over time;
S. 1409 101 A. 2109
1 o. Proximity of the site to private residences, public buildings or
2 property, school facilities, places of work or other areas where indi-
3 viduals may be present; and
4 p. The name, address and telephone number of the public water supplier
5 which services the area in which such site is located.
6 [4.] 2. a. The department shall conduct investigations of the sites
7 listed in the registry and shall investigate areas or sites which it has
8 reason to believe should be included in the registry. The purpose of
9 these investigations shall be to develop the information required by
10 [subdivisions two and three] subdivision one of this section to be
11 included in the [annual report by the department] registry.
12 b. The department shall, as part of the registry, assess and, based
13 upon new information received, reassess by March thirty-first of each
14 year, in cooperation with the department of health, the relative need
15 for action at each site to remedy environmental and health problems
16 resulting from the presence of hazardous wastes at such sites
;
17 provided, however, that if at the time of such assessment or reassess-
18 ment, the department has not placed a site in classification 1 or 2, as
19 described in subparagraphs one and two of this paragraph, and such site
20 is the subject of negotiations for, or implementation of, a voluntary
21 agreement pursuant to title fourteen of this article, obligating the
22 person subject to such agreement to, at a minimum, eliminate or mitigate
23 all significant threats to the public health and environment posed by
24 the hazardous waste pursuant to such agreement, the department shall
25 defer its assessment or reassessment during the period such person is
26 engaged in good faith negotiations to enter into such an agreement and,
27 following its execution, is in compliance with the terms of such agree-
28 ment, and shall assess or reassess such site upon completion of remedi-
29 ation to the department's satisfaction. In making its assessments, the
30 department shall place every site in one of the following classifica-
31 tions:
32 (1) Causing or presenting an imminent danger of causing irreversible
33 or irreparable damage to the public health or environment--immediate
34 action required;
35 (2) Significant threat to the public health or environment--action
36 required;
37 (3) Does not present a significant threat to the public health or
38 environment--action may be deferred;
39 (4) Site properly closed--requires continued management;
40 (5) Site properly closed, no evidence of present or potential adverse
41 impact--no further action required.
42 c. (1) Any owner or operator of a site listed pursuant to this section
43 may petition the commissioner for deletion of such site, modification of
44 the site classification, or modification of any information regarding
45 such site by submitting a written statement in such form as the commis-
46 sioner may require setting forth the grounds of the petition.
47 (2) Within ninety days after the submittal of such petition, the
48 commissioner may convene an administrative hearing to determine whether
49 a particular site should be deleted from the registry, receive a modi-
50 fied site classification or whether any information regarding the site
51 should be modified. In any such hearing the burden of proof shall be on
52 the petitioner. No less than thirty days prior to the hearing the
53 commissioner shall cause a notice of hearing to be published in the next
54 available environmental notice bulletin and in a newspaper of general
55 circulation in the county in which the site is located. The commissioner
56 shall also notify in writing any owner or operator of the site no less
S. 1409 102 A. 2109
1 than thirty days prior to the hearing. The cost of any such hearing,
2 including the cost of any public notification, shall be at the
3 petitioner's expense.
4 (3) No later than thirty days following receipt of the complete record
5 as that term is defined in the state administrative procedure act, or
6 following the decision not to hold a hearing the commissioner shall
7 provide the owner or operator with a written determination accompanied
8 by reason therefor regarding the deletion of such site, modification of
9 the site classification or modification of any information regarding
10 such site. Any decision rendered by the commissioner shall be reviewable
11 under article seventy-eight of the civil practice law and rules.
12 (4) The commissioner may not delete any site from the registry without
13 providing public notice no less than sixty days prior to the proposed
14 deletion. Such notice of deletion shall be published in the next avail-
15 able environmental notice bulletin and in a newspaper of general circu-
16 lation in the county in which the site is located. The commissioner
17 shall also notify in writing any owner or operator of the site, if
18 applicable, no less than sixty days prior to the proposed deletion. The
19 commissioner shall provide a thirty-day period for submission of written
20 comments and may provide an opportunity for submission of oral comments
21 at a public meeting at or near the site. The commissioner shall summa-
22 rize any comments received and make the summary available to the public.
23 The commissioner may convene an administrative hearing to determine
24 whether a particular site should be deleted from the registry, receive a
25 modified site classification or whether any information regarding the
26 site should be modified.
27 (5) The department shall notify, as soon as possible and within avail-
28 able resources all public repositories of the registry of any modifica-
29 tions or deletions to such registry. The department shall also note any
30 such deletions or modifications in the next annual report and publica-
31 tion of the registry.
32 (6) The department shall, within ten days of any determination notify
33 the local governments of jurisdiction whenever a change is made in the
34 registry pursuant to this subdivision.
35 d. (1) Within seven months after the effective date of this subdivi-
36 sion the department shall notify by certified mail the owner of all or
37 any part of each site or area included in the registry, of the inclusion
38 of the site or area by mailing notice to such owner at the owner's last
39 known address. Thereafter, fifteen days before any site or area is added
40 to the registry, the department shall notify in writing by certified
41 mail the owner of all or any part of such site or area of the inclusion
42 of such site or area by mailing notice to each such owner at the owner's
43 last known address.
44 (2) Notice pursuant to paragraph a of this subdivision shall include
45 but not be limited to a description of the duties and restrictions
46 imposed by section 27-1317 of this title and by section one thousand
47 three hundred eighty-nine-d of the public health law.
48 (3) Non-receipt of any notice mailed to an owner pursuant to this
49 subdivision shall in no way affect the responsibilities, duties or
50 liabilities imposed on any person by this title or title XII-A of arti-
51 cle thirteen of the public health law.
52 e. The department shall, in consultation with the department of
53 health, evaluate existing site evaluation systems and shall develop a
54 system to select and prioritize sites for remedial action. Such system
55 shall incorporate environmental, natural resource and public health
56 concerns.
S. 1409 103 A. 2109
1 f. The department shall develop a site status reporting system[.
2 Utilizing such system, the department shall report by October first,
3 nineteen hundred eighty-five and quarterly thereafter to the governor
4 and to the legislature for each site listed in the registry. The report
5 shall include:
6 (1) the classification and, when available, the priority ranking of
7 each site;
8 (2) the status of the investigatory, design or construction work at
9 each site including the dates on which such work was commenced and is
10 expected to be completed or, if known, the date on which such work is
11 expected to be commenced and completed;
12 (3) the status of any remedial enforcement actions taken by the
13 department, the attorney-general or, if known, any other party with
14 respect to each site;
15 (4) the status of any health department inspection at each site;
16 (5) the status of the actions, if any, taken with respect to each site
17 by the department's solid waste or hazardous waste regulatory programs;
18 (6) such other information as the department may provide to indicate
19 the status of remedial actions at each site; and
20 (7) an identification of monies expended or encumbered pursuant to a
21 state contract from either the environmental quality bond act of nine-
22 teen hundred eighty-six or the hazardous waste remedial fund for each
23 site] and utilize such system to ensure that the registry required by
24 subdivision one of this section provides a complete and up-to-date list-
25 ing of all sites in each region.
26 [5.] 3. The department shall[, as soon as possible but in no event
27 later than January first, nineteen hundred eighty-four,] annually
28 prepare and submit in writing [a], or by posting on its homepage on the
29 internet an updated "state inactive hazardous waste remedial plan,"
30 hereinafter referred to as "the plan" [to the state superfund management
31 board. Such board shall then approve of the plan or make such modifica-
32 tion as it is empowered to do pursuant to section 27-1319 of this chap-
33 ter and submit the approved plan or modified plan], to the governor and
34 the legislature on or before [March first, nineteen hundred eighty-four]
35 July first of each year. In [proposing,] preparing [and], compiling and
36 updating the plan, the department shall:
37 a. Conduct or cause to be conducted field investigations of high
38 priority sites listed in the inactive hazardous waste disposal sites
39 registry for the purpose of further defining necessary remedial action.
40 To the maximum extent practicable, the department shall utilize existing
41 information including, but not limited to, subsurface borings and any
42 analyses or tests of samples taken from such sites by owners or opera-
43 tors, other responsible persons and any federal or non-federal agencies.
44 b. Make any subsurface borings and any analyses or tests of samples
45 taken as may be necessary or desirable to effectuate the field investi-
46 gations of sites as required under this section subject to the require-
47 ments of this title.
48 c. Make any record searches or document reviews as may be necessary or
49 desirable to effectuate the purposes of this section subject to the
50 requirements of this title.
51 d. Consider the effects on the health, environment and economy of the
52 state when assessing the relative priority of sites as required by this
53 section, especially any actual or significant threat of direct human
54 contact or contamination of groundwater or drinking water.
55 e. Detail the recommended strategy, methods and time frame by which
56 remedial action at sites shall be carried out, except that no informa-
S. 1409 104 A. 2109
1 tion or work product associated with actual or pending litigation shall
2 be divulged unless otherwise required by law.
3 f. Estimate, with reasonable specificity, based upon the field inves-
4 tigations, assessments, analyses, document reviews and other appropriate
5 data gathering, the costs of remedial action for sites included in the
6 plan, considering the appropriate methods and techniques as currently
7 exist in the field of hazardous waste management and any such estimates
8 or recommendations shall reflect such costs as are reasonably necessary
9 to contain, alleviate or end the threat to life or health or to the
10 environment.
11 [6.] 4. On or before July first, nineteen hundred eighty-six and July
12 first of each succeeding year, the department shall prepare a status
13 report on the implementation of the plan, and an update of the policies,
14 program objectives, methods and strategies as outlined in the plan which
15 guide the overall inactive hazardous waste site remediation program.
16 Such status report shall reflect information available to the department
17 as of March thirty-first of each year, and shall include an accounting
18 of all monies expended or encumbered from the environmental quality bond
19 act of nineteen hundred eighty-six or the hazardous waste remedial fund
20 during the preceding fiscal year, such accounting to separately list:
21 a. monies expended or encumbered for the purpose of conducting site
22 investigations;
23 b. monies expended or encumbered for the purpose of conducting remedi-
24 al investigations and feasibility studies;
25 c. monies expended or encumbered for the purpose of conducting remedi-
26 al design studies;
27 d. monies expended or encumbered for the purpose of conducting remedi-
28 al construction activities;
29 e. monies expended or encumbered for operation, maintenance, and moni-
30 toring activities;
31 f. monies expended or encumbered for interim remedial measures;
32 g. monies expended or encumbered for administrative personnel costs
33 associated with activities conducted at inactive hazardous waste
34 disposal sites;
35 h. monies expended or encumbered for oversight activities at inactive
36 hazardous waste disposal sites;
37 i. monies expended or encumbered in stand-by contracts entered into
38 pursuant to section 3-0309 of this chapter and the purposes for which
39 these stand-by contracts were entered into; and
40 j. an accounting of payments received and payments obligated to be
41 received pursuant to this title, and a report of the department's
42 attempts to secure such obligations.
43 § 7-a. Paragraph e of subdivision 1 of section 27-1307 of the environ-
44 mental conservation law, as added by chapter 282 of the laws of 1979, is
45 amended to read as follows:
46 e. Any other information that the department may deem necessary to
47 prepare the [annual report or] registry required by section 27-1305 of
48 this article.
49 § 8. Subdivisions 3, 4, and 5 of section 27-1309 of the environmental
50 conservation law, as amended by chapter 857 of the laws of 1982, are
51 amended to read as follows:
52 3. Any duly designated officer or employee of the department, or of
53 any state agency, and any agent, consultant, contractor, or other
54 person, including an employee, agent, consultant, or contractor of a
55 responsible person acting at the direction of the department, so author-
56 ized in writing by the commissioner, may enter any inactive hazardous
S. 1409 105 A. 2109
1 waste disposal site and areas near such site and inspect and take
2 samples of wastes, soils, air, surface water, and groundwater. In order
3 to take such samples, the department or authorized person may utilize or
4 cause to be utilized such sampling methods as it determines to be neces-
5 sary including, but not limited to, soil borings and monitoring wells.
6 4. The department or authorized person shall not take any samples[,]
7 involving the substantial disturbance of the ground surface of any prop-
8 erty unless it has made a reasonable effort to identify the owner of the
9 property and to notify such owner of the [department's] intent to take
10 such samples. If the owner can be identified, the department shall
11 provide such owner with a minimum of ten [days] days' written notice of
12 [its] the intent to take such samples, unless the commissioner makes a
13 written determination that such ten day notice will not allow the
14 department to protect the environment or public health, in which case
15 two [days] days' written notice shall be sufficient. Any inspection of
16 the property and each such taking of samples shall take place at reason-
17 able times and shall be commenced and completed with reasonable prompt-
18 ness. If any officer, employee, agent, consultant, contractor, or other
19 person so authorized in writing by the commissioner obtains any samples
20 prior to leaving the premises, he or she shall give to the owner or
21 operator a receipt describing the sample obtained and, if requested, a
22 portion of such sample equal in volume or weight to the portion
23 retained. If any analysis is made of such samples, a copy of the results
24 of such analysis shall be furnished promptly to the owner or operator.
25 Upon the completion of all sampling activities, the department or
26 authorized person shall remove, or cause to be removed, all equipment
27 and well machinery and return the ground surface of the property to its
28 condition prior to such sampling, unless the department or authorized
29 person and the owner of property shall otherwise agree.
30 5. The expense of any such sampling and analysis shall be paid by the
31 department, but may be recovered from any responsible person in any
32 action or proceeding brought pursuant to this title or common law;
33 provided, that if the person so authorized in writing shall be an
34 employee, agent, consultant, or contractor of a responsible person
35 acting at the direction of the department, then the expense of any such
36 sampling and analysis shall be paid by the responsible person.
37 § 9. Paragraph b of subdivision 1 of section 27-1313 of the environ-
38 mental conservation law is relettered paragraph c, and a new paragraph b
39 is added to read as follows:
40 b. The department shall have the authority to require the development
41 and implementation of a department-approved inactive hazardous waste
42 disposal site remedial program; provided, however, that the department
43 shall use the following in developing and implementing such remedial
44 program:
45 (i) The objective of such remedial program shall be the protection of
46 the public health and environment, with the minimum objective being to
47 eliminate or mitigate all significant threats to the public health and
48 environment presented by hazardous waste through proper application of
49 scientific and engineering principles, and such remedial program must be
50 selected upon due consideration of the following factors:
51 (A) conformance to standards and criteria that are generally applica-
52 ble, consistently applied, and officially promulgated, that are either
53 directly applicable, or that are not directly applicable but are rele-
54 vant and appropriate, unless good cause exists why conformity should be
55 dispensed with, and with consideration being given to guidance deter-
56 mined, after the exercise of engineering judgment, to be applicable;
S. 1409 106 A. 2109
1 (B) overall protectiveness of the public health and environment;
2 (C) short-term effectiveness;
3 (D) long-term effectiveness;
4 (E) reduction of toxicity, mobility, and volume with treatment; a
5 remedial program that permanently and significantly reduces the toxici-
6 ty, mobility and/or volume of hazardous waste is to be preferred over a
7 remedial program that does not do so; the following is the hierarchy of
8 remedial technologies ranked from most preferable to least preferable:
9 (1) destruction, onsite or offsite; (2) separation or treatment, onsite
10 or offsite; (3) solidification or chemical fixation, onsite or offsite;
11 (4) control and isolation, onsite or offsite;
12 (F) cost;
13 (G) implementability;
14 (H) community acceptance; and
15 (I) land use: the current, intended, and reasonably anticipated future
16 land uses for the property and its surroundings, to the extent ascer-
17 tainable from consideration of current use, zoning laws, zoning maps,
18 comprehensive community master plans, population growth patterns and
19 projections, accessibility to existing infrastructure, current institu-
20 tional controls, location in relation to urban and residential and
21 commercial and industrial and agricultural and recreational areas,
22 federal and state use designations, historical and/or recent development
23 patterns, cultural factors, natural resources, potential vulnerability
24 of groundwater to contamination, environmental justice, location of
25 wetlands, proximity to floodplains, proximity to critical habitats of
26 endangered or threatened species, geography and geology, and, locations
27 of wellhead protection areas and recharge areas and other areas identi-
28 fied in the state's comprehensive groundwater protection program.
29 (ii) Notwithstanding anything to the contrary in this paragraph, at
30 sites listed pursuant to section 27-1305 of this title as classification
31 1 or 2, there shall be a presumption for soil remediation to soil cate-
32 gory 2 for residential purposes pursuant to section 27-1316 of this
33 title where such remediation is conducted by a person responsible
34 according to applicable principles of statutory or common law liability
35 at a site that is not in active use for industrial or commercial uses
36 and is adjacent to residential uses. This presumption may be overcome by
37 written findings of the commissioner after an opportunity for citizen
38 participation consistent with this title.
39 (iii) No remedial program may be selected except upon the commission-
40 er's finding that the same will be adequately protective of the public
41 health and the environment.
42 (iv) Nothing herein contained shall be deemed to require site-specific
43 remedy selection, and the commissioner shall have the power to develop a
44 list of presumptive remedial strategies that are appropriate for specif-
45 ic site types and/or contaminants based upon historical patterns of
46 remedy selection and the department's scientific and engineering evalu-
47 ation of performance data on technology implementation.
48 § 10. Paragraph a of subdivision 3 and subdivisions 4 and 8 of
49 section 27-1313 of the environmental conservation law, paragraph a of
50 subdivision 3 as amended and subdivision 8 as added by chapter 857 of
51 the laws of 1982, subdivision 4 as added by chapter 282 of the laws of
52 1979, are amended, and three new subdivisions 10, 11, and 12 are added
53 to read as follows:
54 a. Whenever the commissioner finds that hazardous wastes at an inac-
55 tive hazardous waste disposal site constitute a significant threat to
56 the environment, he or she may: (i) order the owner of such site and/or
S. 1409 107 A. 2109
1 any person responsible for the disposal of hazardous wastes at such site
2 [(i)] to develop an inactive hazardous waste disposal site remedial
3 program, subject to the approval of the department, at such site, and
4 [(ii)] to implement such program within reasonable time limits specified
5 in the order; or (ii) develop and implement a remedial program for such
6 site after a reasonable, but unsuccessful, attempt to obtain the consent
7 of the owner and/or any person responsible to the issuance of an order
8 to develop and implement such remedial program for such site.
9 Any remedial program developed and implemented pursuant to subpara-
10 graph (i) or (ii) of this paragraph shall provide for a reasonable
11 opportunity for submission of written and oral comments regarding, at a
12 minimum, the proposed remedial program; and in accordance with such
13 regulations as it may promulgate, the department may, subject to appro-
14 priation therefor, make grants of up to fifty thousand dollars per site
15 available to a municipality which is not responsible according to appli-
16 cable principles of statutory or common law liability, a community
17 group, and/or such a municipality and a community group in partnership
18 with each other, and which may be affected by a release or threatened
19 release of hazardous waste disposed at such site in order to obtain
20 technical assistance in interpreting existing information with regard to
21 the nature and extent of the contamination at the site and the develop-
22 ment and implementation of such remedial program. To qualify to receive
23 such assistance, a community group must demonstrate that its membership
24 represents the interests of the community affected by such site, and
25 that members' health, economic well-being or enjoyment of the environ-
26 ment are potentially threatened by such site and a municipality must
27 demonstrate financial need. The proposed recipient must also contribute
28 twenty percent of the total grant, or such other amount to be determined
29 by the department in accordance with such regulations as it may promul-
30 gate, which may be satisfied through money or the cash value of donated
31 supplies or services. Grants awarded under this section may not be used
32 for the purpose of collecting field sampling data, political activity or
33 lobbying. Provided, however, that in the event the commissioner of
34 health shall issue an order pursuant to subdivision three of section one
35 thousand three hundred eighty-nine-b of the public health law, such
36 order of the commissioner of health shall supersede any order issued
37 hereunder.
38 4. a. Any order issued pursuant to subdivision three of this section,
39 other than one issued on consent of the person who is the subject of
40 such order, shall be issued only after notice and the opportunity for a
41 hearing is provided to persons who may be the subject of such order. The
42 commissioner shall determine which persons are responsible pursuant to
43 said subdivision according to applicable principles of statutory or
44 common law liability. Such persons shall be entitled to raise any statu-
45 tory or common law defense at any such hearing and such defenses shall
46 have the same force and effect at such hearings as they would have in a
47 court of law. In the event a hearing is held, no order shall be issued
48 by the commissioner under subdivision three of this section until a
49 final decision has been rendered. Any such order shall be reviewable
50 pursuant to article seventy-eight of the civil practice law and rules
51 within thirty days after service of such order. The commissioner may
52 request the participation of the attorney general in such hearings.
53 b. There shall be no liability under this section for a person other-
54 wise liable who can establish by a preponderance of the evidence that
55 the significant threat to the environment attributable to hazardous
56 waste disposed at an inactive hazardous waste disposal site was caused
S. 1409 108 A. 2109
1 solely by an act of God; an act of war; or an act or omission of a third
2 party other than an employee or agent of such person, or than one whose
3 act or omission occurs in connection with a contractual relationship
4 existing directly or indirectly with such person (except where the sole
5 contractual arrangement arises from a published tariff and acceptance
6 for carriage by a common carrier or rail), if such person establishes by
7 a preponderance of the evidence that such person exercised due care with
8 respect to the hazardous waste concerned, taking into consideration the
9 characteristics of such hazardous waste, in light of all relevant facts
10 and circumstances, and took precautions against foreseeable acts or
11 omissions of any such third party and the consequences that could fore-
12 seeably result from such acts or omissions; or any combination of them.
13 For purposes of this paragraph, the term, "contractual relationship,"
14 includes, but is not limited to, land contracts, deeds, or other instru-
15 ments transferring title or possession, unless the real property on
16 which the site concerned is located was acquired by such person after
17 the disposal or placement of the hazardous waste on, in, or at such
18 site, and such person establishes one or more of the circumstances
19 described in subparagraph (i), (ii), or (iii) of this paragraph by a
20 preponderance of the evidence:
21 (i) At the time such person acquired the site such person did not know
22 and has no reason to know that any hazardous waste which is the subject
23 of the significant threat determination was disposed of on, in, or at
24 the site. To establish that such person has no reason to know, such
25 person must have undertaken, at the time of acquisition, all appropriate
26 inquiry into the previous ownership and uses of the property consistent
27 with good commercial or customary practice in an effort to minimize
28 liability. For purposes of the preceding sentence, the commissioner
29 shall take into account any specialized knowledge or experience on the
30 part of such person, the relationship of the purchase price to the value
31 of the property if uncontaminated, commonly known or reasonably ascer-
32 tainable information about the property, the obviousness of the presence
33 or likely presence of contamination at the property, and the ability to
34 detect such contamination by appropriate inspection; or
35 (ii) Such person is a government entity which acquired the site by
36 escheat, or through any other involuntary transfer or acquisition; or
37 (iii) Such person acquired the site by inheritance or bequest, and
38 that such person exercised due care with respect to the hazardous waste
39 concerned, taking into consideration the characteristics of such hazard-
40 ous waste, in light of all relevant facts and circumstances, and took
41 precautions against foreseeable acts or omissions of any such third
42 party and the consequences that could foreseeably result from such acts
43 or omissions.
44 Nothing in this paragraph shall diminish the liability of any previous
45 owner or operator of the site who would otherwise be liable under this
46 section. Notwithstanding this paragraph, if such person obtained actual
47 knowledge of the release or threatened release of a hazardous waste at
48 the site when such person owned the site and then subsequently trans-
49 ferred ownership of the site to another person without disclosing such
50 knowledge, such person shall be treated as a person responsible for the
51 disposal of hazardous waste at the site, and no defense under this para-
52 graph shall be available to such person. Nothing in this paragraph shall
53 affect the liability under this section of a person who, by any act or
54 omission, caused or contributed to the release or threatened release of
55 a hazardous waste which is the subject of such proceeding relating to
56 such site.
S. 1409 109 A. 2109
1 8. Any duly designated officer or employee of the department or any
2 other state agency, and any agent, consultant, contractor, or other
3 person, including an employee, agent, consultant, or contractor of a
4 responsible person acting at the direction of the department, so author-
5 ized in writing by the commissioner, may enter any inactive hazardous
6 waste disposal site and areas near such site to implement[, pursuant to
7 subdivision five of this section,] an inactive hazardous waste disposal
8 site remedial program for such site, provided the commissioner has sent
9 a written notice to the owners of record or any known [known] occupants
10 of such site or nearby areas of the intended entry and work at least ten
11 days prior to such initial entry.
12 10. a. If, after the commissioner makes the finding described in para-
13 graph a of subdivision three of this section and after expending reason-
14 able efforts, the department is unable to obtain a voluntary commitment
15 by the owner of an inactive hazardous waste disposal site and/or any
16 person responsible for the disposal of hazardous wastes at such site (i)
17 to develop an inactive hazardous waste disposal site remedial program,
18 subject to the approval of the department, at such site, and/or (ii) to
19 implement such program within reasonable time limits, the department may
20 undertake such development or implementation, in which case, subject to
21 paragraphs b and c of this subdivision, there is hereby created a right
22 of the state to recover in any court of competent jurisdiction from such
23 owner and/or any person responsible an amount equal to all costs, both
24 direct and indirect, respecting such site that the state shall have
25 incurred.
26 b. Two or more owners and/or persons responsible described in para-
27 graph a of subdivision three of this section may claim contribution
28 among themselves in an action brought in a court of competent jurisdic-
29 tion, and the amount of contribution to which any of them is entitled
30 shall be equal to the excess paid by that person responsible over and
31 above such person's equitable share of costs.
32 c. A person misidentified by the department as an owner and/or person
33 responsible but which entered into a voluntary commitment, other than a
34 voluntary agreement pursuant to title fourteen of this article, with the
35 department may recover from the remedial program transfer fund estab-
36 lished by section ninety-seven-cccc of the state finance law the costs
37 it shall have incurred that are reasonable in light of the action agreed
38 to be undertaken.
39 d. All monies collected by the state pursuant to this section shall be
40 deposited into the remedial program transfer fund established by section
41 ninety-seven-cccc of the state finance law.
42 11. a. Any person subject to an order issued pursuant to this section
43 or any person that shall have entered into a voluntary agreement with
44 the department under title fourteen of this article may seek in a court
45 of competent jurisdiction contribution from any other person who is a
46 person responsible for the disposal of hazardous wastes at an inactive
47 hazardous waste disposal site or at an affected site, as defined by
48 section 27-1401 of this article, for costs incurred in developing and
49 implementing a department-approved inactive hazardous waste disposal
50 site remedial program or in negotiating and implementing a voluntary
51 agreement. Nothing in this subdivision shall be construed to limit,
52 affect, or impair any protections from or limitations on liability
53 provided by the department or otherwise.
54 b. If the costs of measures undertaken at an inactive hazardous waste
55 disposal site or at an affected site for the purpose of addressing
56 hazardous waste or petroleum are increased because of design or imple-
S. 1409 110 A. 2109
1 mentation considerations or alterations made for the purpose of accommo-
2 dating, effecting, or advancing the redevelopment or reuse of such site,
3 the amount of such increase shall not be recoverable under paragraph a
4 of this subdivision. Examples of design or implementation considerations
5 or alterations that may be made for the purpose of accommodating,
6 effecting, or advancing the redevelopment or reuse of a site include,
7 but are not limited to, such measures as altering the type, amount,
8 quality, or aesthetic character of materials used in construction from
9 the type, amount, quality, or aesthetic character of materials required
10 to implement a remedial program or voluntary agreement at such site.
11 c. Any other provision of this subdivision notwithstanding, no costs
12 shall be deemed unrecoverable under paragraph a of this subdivision
13 because they were expended to achieve a higher level of remediation at
14 an inactive hazardous waste disposal site or affected site than the
15 level required by the department.
16 d. In any action or proceeding brought pursuant to this subdivision,
17 the defendant shall be entitled to raise any statutory or common law
18 defense that he or she may have.
19 e. In resolving contribution claims brought pursuant to this subdivi-
20 sion, the court may allocate costs among liable parties using such equi-
21 table factors as the court determines are appropriate.
22 f. No action for contribution pursuant to this provision may be
23 commenced more than six years after the later of:
24 (i) the date of judgment in any action under any law, state or feder-
25 al, respecting the costs that are the subject of the claim for contrib-
26 ution; or
27 (ii) the date of the issuance of an order or agreement by the depart-
28 ment respecting the costs that are the subject of the claim for contrib-
29 ution or respecting activities the conduct of which caused the expendi-
30 ture of the costs that are the subject of the claim for contribution.
31 g. The court shall enter a declaratory judgment on liability for costs
32 that will be binding on any subsequent action or actions to recover
33 costs incurred in implementing a department-approved inactive hazardous
34 waste disposal site remedial program, or in implementing a voluntary
35 agreement under title fourteen of this article.
36 h. Nothing contained in this subdivision shall affect any rights to
37 recovery of costs to which any party may be entitled by contract or
38 otherwise under law.
39 12. The department, by and through the commissioner, shall be author-
40 ized to exempt a person from the requirement to obtain any state or
41 local permit or other authorization for any activity needed to implement
42 an inactive hazardous waste disposal remedial program pursuant to this
43 title; provided, that the activity is conducted in a manner which satis-
44 fies all substantive technical requirements applicable to like activity
45 conducted pursuant to a permit.
46 § 11. The environmental conservation law is amended by adding a new
47 section 27-1314 to read as follows:
48 § 27-1314. Covenant not to sue.
49 1. After the successful implementation of an order on consent which
50 provides for the development and implementation of an inactive hazardous
51 waste disposal site remedial program, the person subject to the order
52 shall submit to the department a written certification prepared by an
53 individual licensed or otherwise authorized in accordance with article
54 one hundred forty-five of the education law to practice the profession
55 of engineering who shall have been in charge of the implementation of
56 such remediation undertaken pursuant to such order substantiating that,
S. 1409 111 A. 2109
1 at a minimum, such remedial activities satisfied the remedial require-
2 ments for the site.
3 2. Upon the department's receipt of such certification, the department
4 shall review the final engineering report and the data submitted pursu-
5 ant to the order as well as any other relevant information regarding the
6 site. The department shall provide the person, upon its satisfaction
7 that the remedial requirements for the site have been achieved, with a
8 covenant not to sue, binding upon the state, for any liability, includ-
9 ing any future liability or claim for the further remediation of hazard-
10 ous wastes at or from the site that was the subject of such order,
11 except that a person responsible for the site's remediation as of the
12 effective date of the consent order pursuant to applicable principles of
13 statutory and common law liability shall not receive a release for
14 natural resource damages that may be available under federal law. Addi-
15 tionally, the state nonetheless shall reserve all of its rights concern-
16 ing, and such covenant shall not extend to, any further investigation or
17 remedial action the department deems necessary, as a result of:
18 a. a failure to comply with the terms and conditions of the order;
19 b. a fraudulent demonstration that the cleanup levels identified in
20 the order were reached;
21 c. a release or threatened release at the site subsequent to the
22 effective date of the order;
23 d. a change in the site's use subsequent to the effective date of the
24 order to a use requiring a lower level of residual contamination, unless
25 additional remedial activities are undertaken which shall meet the stan-
26 dard for protection of the public health and environment that applies to
27 remedial actions for such use under this title; or
28 e. information received, in whole or in part, after the department's
29 execution of such order, which indicates that the remediation performed,
30 or to be performed, under such order will not be, or is not, protective
31 of the public health or environment for such use of the site.
32 3. The reservation contained in paragraph d of subdivision two of this
33 section shall not be reserved in the event that a person remediates soil
34 contamination to soil category 1, as that term is described in paragraph
35 a of subdivision three of section 27-1316 of this title.
36 4. The covenant not to sue issued pursuant to this section shall
37 extend to the person's successors or assigns through acquisition of
38 title to the site to which the covenant applies and to a person who
39 develops or otherwise occupies the site; provided that such persons act
40 in good faith to adhere to the requirements of such order on consent.
41 However, such covenant does not extend, and cannot be transferred, to a
42 person who is responsible as of the date of the issuance of an order on
43 consent for the remediation of hazardous waste at the site according to
44 applicable principles of statutory or common law liability, unless that
45 person was party to the order on which such covenant was based. A notice
46 of the order containing such covenant shall be recorded and indexed as a
47 declaration of covenant in the office of the recording officer for the
48 county or counties where such site is located in the manner prescribed
49 by article nine of the real property law within thirty days of signing
50 the order if the person is an owner or within thirty days of acquiring
51 title to the site if the person is a prospective purchaser.
52 5. The provisions of this title shall not affect an action or a claim,
53 including a claim for contribution, that a person who complies with an
54 order on consent executed by such person and the department providing
55 for the development and implementation of an inactive hazardous waste
S. 1409 112 A. 2109
1 disposal site remedial program pursuant to this title has or may have
2 against a third party.
3 6. Nothing in this section shall be construed to affect either the
4 liability of any person with respect to any costs, damages, or investi-
5 gative or remedial activities that are not included in the order; or the
6 department's authority to maintain an action or proceeding against any
7 person who is not subject to the order.
8 7. A person who has settled such person's liability to the department
9 under this subdivision shall not be liable for claims for contribution
10 regarding matters addressed in the order. Such settlement does not
11 discharge any of the persons responsible under law to investigate and
12 remediate the hazardous waste unless its terms so provide, but it
13 reduces the potential liability of the others by the amount of the
14 settlement.
15 8. Nothing in this section shall be construed to affect the authority
16 of the department to reach settlement with other persons consistent with
17 its authority under applicable law.
18 § 12. Section 27-1315 of the environmental conservation law, as
19 amended by chapter 857 of the laws of 1982, is amended to read as
20 follows:
21 § 27-1315. Rules and regulations.
22 1. The commissioner shall have the power to promulgate rules and regu-
23 lations necessary and appropriate to carry out the purposes of this
24 title. Any such regulations shall include provisions which establish the
25 procedures for a hearing pursuant to paragraph a of subdivision four of
26 section 27-1313 of this [article] title. Any such provisions shall
27 ensure a division of functions between the commissioner, the staff who
28 present the case, and any hearing officers appointed. In addition, any
29 such regulations shall set forth findings to be based on a factual
30 record, which must be made before the commissioner determines that a
31 significant threat to the environment exists. Rules and regulations
32 promulgated pursuant to this title shall be subject to the approval of a
33 board, which shall be known as the inactive hazardous waste disposal
34 site regulation review board, which shall have the same members, rules,
35 and procedures as the state environmental board.
36 2. Such rules and regulations of the department as shall be in effect
37 on the effective date of this subdivision that shall have been promul-
38 gated to carry out the purposes of this title shall be deemed to be
39 revised, as of the effective date of this subdivision, to include the
40 definition of "hazardous waste" as it appears in section 27-1301 of this
41 title.
42 § 13. Section 27-1316 of the environmental conservation law is
43 REPEALED and a new section 27-1316 is added to read as follows:
44 § 27-1316. Soil cleanup levels.
45 1. The commissioner shall establish a technical advisory panel. The
46 membership of the panel shall be appointed by the commissioner and the
47 commissioner of health and shall include representation from the public
48 health advocacy community, the environmental advocacy community, citi-
49 zens' organizations having among their purposes advocacy on behalf of
50 person affected by sites contaminated with hazardous waste and/or petro-
51 leum, the business community, municipalities, and others as deemed
52 appropriate by the commissioner. The commissioner and the commissioner
53 of the department of health shall be co-chairs of such panel. The
54 appointed members shall receive one hundred dollars per diem, not to
55 exceed five thousand dollars per annum compensation for their services
56 as members of the panel. None of the appointed members shall be officers
S. 1409 113 A. 2109
1 or employees of any state department or agency, provided, that such
2 appointed members shall be considered officers or employees of a public
3 entity and shall be afforded such defense and indemnification provided
4 pursuant to section eighteen of the public officers law. Each member
5 shall have experience in risk assessment methodologies, remediation
6 technologies, or other appropriate scientific, technical, or other rele-
7 vant expertise in regard to the remediation of contaminated sites.
8 Staff services for the panel shall be performed by personnel of the
9 department and/or of the department of health, and the reasonable
10 expenses of the panel shall be paid from any funds available to the
11 department and/or to the department of health, all as the co-chairs may
12 direct. All meetings of the technical advisory panel shall be open to
13 the public. The recommendations of the technical advisory panel shall be
14 subject to public comment.
15 2. The panel shall provide advice on the development of, and recom-
16 mend, soil clean-up levels which provide for a multi-category approach
17 for the remediation of soil contamination, as set forth in subdivision
18 three of this section, at inactive hazardous waste disposal sites, sites
19 subject to a voluntary agreement under title fourteen of this article,
20 and cleanup and removal actions under article twelve of the navigation
21 law.
22 3. In the development of soil cleanup levels, the technical advisory
23 panel shall consider the following as the basis for the soil cleanup
24 levels: the cancer and non-cancer human health effects; background
25 concentrations; exposure to the same contaminant from other routes; the
26 strength of the toxicological data base; sensitive populations, includ-
27 ing children; protection of groundwater for its classified use, surface
28 water, air (including indoor air); and protection of ecological
29 resources, including fish and wildlife. In addition, the cumulative
30 effects of contaminants and the possibility that some contaminants may
31 act through similar toxicological mechanisms shall be considered. The
32 experiences under the existing state remedial programs shall be consid-
33 ered. The goals for the level of risk associated with soil cleanup
34 levels for individual contaminants are an excess cancer risk of one in
35 one million for carcinogenic end points and a hazard index of one for
36 non-cancer end points for each soil category.
37 a. Soil category 1: cleanup levels that will be protective of public
38 health and the environment that would allow the site to be used for any
39 purpose without restriction and without reliance on institutional
40 controls or engineering controls.
41 b. Soil category 2: cleanup levels that will be protective of public
42 health and the environment for the site's current, intended, or reason-
43 ably anticipated residential, commercial, or industrial use and with
44 consideration of use of institutional or engineering controls to reach
45 such levels.
46 c. Soil category 3: a process to determine cleanup levels that will be
47 protective of public health and the environment using site specific data
48 for the site's current, intended, or reasonably anticipated residential,
49 commercial, or industrial use.
50 4. The technical advisory panel shall submit its recommendations with-
51 in eighteen months from the date of the first meeting of such technical
52 advisory panel.
53 5. After the close of the public comment period on the recommendations
54 of the technical advisory panel, the commissioner and the commissioner
55 of health, where appropriate, shall promulgate regulations setting forth
56 the soil cleanup levels, considering the factors identified in subdivi-
S. 1409 114 A. 2109
1 sion three of this section, taking into consideration such recommenda-
2 tions, comments received on such recommendations during the public
3 comment period, and any other information deemed relevant by the depart-
4 ment and the department of health. Such regulations shall include a
5 provision requiring that soil category 3 may be selected for the remedi-
6 ation of a particular site only upon the commissioner's finding that a
7 rational basis exists therefor and that such remediation will be
8 adequately protective of the public health and the environment.
9 6. The department shall determine cleanup levels for contaminants in
10 the soil using site specific data until the commissioner promulgates
11 rules and regulations pursuant to this section and thereafter shall use
12 the soil cleanup levels set forth in such rules and regulations, as they
13 may be amended.
14 § 14. Article 27 of the environmental conservation law is amended by
15 adding a new title 14 to read as follows:
16 TITLE 14
17 VOLUNTARY CLEANUP ACT
18 Section 27-1400. Declaration of policy and findings of fact.
19 27-1401. Definitions.
20 27-1403. Request for participation.
21 27-1405. Determination of eligibility.
22 27-1407. Voluntary agreement and work plan requirements.
23 27-1409. Citizen participation/public notification.
24 27-1411. Covenant not to sue.
25 27-1413. Remediation certificate.
26 27-1415. Payment of state costs.
27 27-1417. Change of use.
28 27-1419. Immunity.
29 27-1421. Permit waivers.
30 27-1423. Access to sites.
31 § 27-1400. Declaration of policy and findings of fact.
32 The legislature hereby declares and finds that, to advance the policy
33 of the state of New York to conserve, improve, and protect its natural
34 resources and environment and control water, land, and air pollution in
35 order to enhance the health, safety, and welfare of the people of the
36 state and their overall economic and social well being, it is appropri-
37 ate to enact this Voluntary Cleanup Act to accomplish remediation of
38 affected sites by affected persons without official compulsion; and it
39 is the intent of the legislature that the provisions of this Voluntary
40 Cleanup Act shall not be construed as limiting or otherwise affecting
41 any authority conferred upon the department by any other provision of
42 law. The remedial goal of the voluntary cleanup program shall be the
43 protection of public health and the environment, with the minimum objec-
44 tive being to eliminate or mitigate all significant threats to public
45 health and the environment presented by the hazardous waste and/or
46 petroleum through proper application of scientific and engineering prin-
47 ciples.
48 § 27-1401. Definitions.
49 1. "Affected person" means a person whose request to participate in
50 the voluntary cleanup program under this title has been accepted by the
51 department:
52 a. "Type A affected person" means an affected person who either: (i)
53 was the owner of the affected site at the time of the disposal of
54 hazardous waste or discharge of petroleum or (ii) is otherwise a person
55 responsible according to applicable principles of statutory or common
56 law liability, unless such person's liability arises solely as a result
S. 1409 115 A. 2109
1 of such person's ownership or operation of or involvement with the
2 affected site subsequent to the disposal of hazardous waste or discharge
3 of petroleum.
4 b. "Type B affected person" means an affected person other than a
5 "Type A affected person", including without limitation a person whose
6 liability arises solely as a result of such person's ownership or opera-
7 tion of or involvement with the affected site subsequent to the disposal
8 of hazardous waste or discharge of petroleum.
9 2. "Affected site" means an area or structure where hazardous waste
10 and/or petroleum has been deposited, disposed of, placed, or otherwise
11 come to be located that is not a site on the National Priorities List
12 established under authority of 42 U.S.C.A. chapter 103, subchapter 1,
13 nor a site on the registry of inactive hazardous waste disposal sites
14 under section 27-1305 of this article and given a classification as
15 described in subparagraph one or two of paragraph b of subdivision four
16 of such section unless the application for participation is received no
17 later than one hundred eighty days after the enactment of this title and
18 the applicant would qualify as a Type B affected person, nor subject to
19 enforcement action, nor subject to a permit issued pursuant to titles
20 seven or nine of this article.
21 3. "Hazardous waste" means hazardous waste as defined in section
22 27-1301 of this article.
23 4. "Interim remedial measure" means "remediation" consisting of a
24 discrete set of activities to address both emergency and non-emergency
25 site conditions which can be undertaken without extensive investigation
26 and evaluation.
27 5. "Investigation" means all those activities to characterize the
28 nature and extent of a release or threatened release of hazardous waste
29 and/or petroleum into the environment.
30 6. "Person" means an individual, trust, firm, joint venture, joint
31 stock company, corporation, limited liability company, partnership,
32 association, state, municipality, commission, political subdivision of a
33 state, public benefit corporation or any interstate body.
34 7. "Petroleum" means petroleum as defined in section one hundred
35 seventy-two of the navigation law, even if appearing on the list promul-
36 gated pursuant to section 37-0103 of this chapter.
37 8. "Preliminary environmental assessment" means a written report
38 submitted as part of a request to participate in the voluntary cleanup
39 program within the department under this title which shall contain the
40 information described in subdivision two of section 27-1403 of this
41 title.
42 9. "Remediation" means the activities undertaken, except for "investi-
43 gation" activities, to eliminate, remove, abate, control, or monitor
44 health and/or environmental hazards or potential hazards in connection
45 with an affected site or to treat or dispose of wastes and waste contam-
46 inated materials from the site, including but not limited to, grading,
47 contouring, trenching, grouting, capping, excavation, transporting,
48 incineration, chemical treatment, biological treatment, or construction
49 of leachate collection and treatment facilities.
50 10. "State costs" means all those costs, obligations, commitments, or
51 undertakings associated with the administration or oversight responsi-
52 bilities of the department, the department of health, or any other state
53 agency attributable to carrying out the investigation and/or remediation
54 of an affected site under a voluntary agreement, as described in this
55 title. Such expenses shall include administrative expenses (wages and
S. 1409 116 A. 2109
1 salaries), fringe benefits, overhead, supplies and materials, equipment,
2 travel, and utilities.
3 11. "Voluntary agreement" means an agreement executed in accordance
4 with this title by an affected person and the department concerning
5 actual, threatened, or suspected hazardous waste and/or petroleum pres-
6 ent at or migrating from an affected site.
7 § 27-1403. Request for participation.
8 1. A person who desires to participate in the voluntary cleanup
9 program under this title concerning a particular affected site shall
10 submit a request to the department.
11 2. Such request shall be on a form provided by the department and
12 shall contain general information concerning such person and such
13 person's relation to the affected site, a description of the affected
14 site, and a copy of a preliminary environmental assessment concerning
15 such affected site that shall include, but not be limited to:
16 a. a review of any relevant prior environmental studies, property
17 assessments, or geological studies of such affected site;
18 b. a legal description of such affected site;
19 c. the physical characteristics of such affected site;
20 d. the compliance history of any operations at such affected site to
21 the extent the history is known by such person;
22 e. a review of any existing aerial photographs of such affected site
23 that may indicate its prior uses;
24 f. if possible, interviews with any employee who may have knowledge of
25 environmental conditions at such affected site;
26 g. an inspection of such affected site sufficient to evaluate site
27 conditions and remedial needs;
28 h. an identification of the past, current, intended, and reasonably
29 anticipated future uses of such affected site and its surroundings; and
30 i. any other relevant information concerning the potential for human
31 and environmental exposures to contamination at such affected site.
32 3. The department shall determine whether such affected site should be
33 included in the registry of inactive hazardous waste disposal sites as
34 required by section 27-1305 of this article. If the department deter-
35 mines that such affected site is eligible for inclusion in the registry
36 as a classification 1 or 2 site, and if the affected person commits to
37 enter into a voluntary agreement pursuant to this title which requires
38 the elimination or mitigation of all significant threats to the public
39 health and environment posed by the hazardous waste, the department
40 shall defer including the affected site in the registry and shall
41 continue to defer such site for so long as the affected person is
42 engaged in good faith negotiations to enter into such an agreement and,
43 following its execution, is in compliance with the terms of the volun-
44 tary agreement.
45 § 27-1405. Determination of eligibility.
46 1. The department shall use its best efforts to notify the person
47 requesting participation in the voluntary cleanup program within sixty
48 days after receiving such request pursuant to section 27-1403 of this
49 title that such request is either accepted or rejected.
50 2. The department shall reject such request if:
51 a. the request does not contain the information required pursuant to
52 subdivision two of section 27-1403 of this title in sufficient detail to
53 assess the conditions of the affected site;
54 b. the department determines that there is an action or proceeding
55 against the person who is requesting participation in the voluntary
56 cleanup program that is pending in any civil or criminal court in any
S. 1409 117 A. 2109
1 jurisdiction, or before any state or federal administrative agency or
2 body, wherein the state or federal government seeks the investigation,
3 removal, or remediation of hazardous waste and/or petroleum, or penal-
4 ties for the disposal of hazardous waste and/or petroleum; or
5 c. the department, based on the preliminary environmental assessment
6 and/or other information the department possesses, determines that the
7 request is for a site which does not meet the definition of "affected
8 site" pursuant to section 27-1401 of this title.
9 3. The department may reject such request for participation if the
10 department determines that the public interest would not be served by
11 granting such request.
12 4. If such request is rejected pursuant to paragraph b of subdivision
13 two of this section, the department shall provide to the person making
14 such request, in writing, a list of the additional information required
15 for the department to determine eligibility under this title.
16 § 27-1407. Voluntary agreement and work plan requirements.
17 1. a. The voluntary agreement shall include, but not be limited to,
18 the following provisions:
19 (i) one requiring such affected person to pay for state costs;
20 provided, however, that with respect to an affected site which the
21 department has determined constitutes a significant threat to the public
22 health or environment, the department may include a provision requiring
23 the affected person to provide a technical assistance grant, as
24 described in subdivision three of section 27-1313 of this article and
25 under the conditions described therein, to an eligible party in accord-
26 ance with procedures established under such program, with the cost of
27 such a grant serving as an offset against such state costs;
28 (ii) one resolving disputes arising from the evaluation, analysis, and
29 oversight of the implementation of the work plan as described in para-
30 graph b of this subdivision;
31 (iii) one requiring an indemnification provision which holds the state
32 harmless from any claim, suit, action, and cost of every name and
33 description arising out of or resulting from the fulfillment or
34 attempted fulfillment of the voluntary agreement, except for those
35 claims, suits, actions, and costs arising from the state's gross negli-
36 gence or willful or intentional misconduct;
37 (iv) one authorizing the department to terminate a voluntary agreement
38 at any time during the implementation of such agreement if the affected
39 person implementing such agreement fails to comply substantially with
40 such agreement's terms and conditions;
41 (v) one exempting such affected person from the requirement to obtain
42 any state or local permit or other authorization for any activity satis-
43 fying the following criteria:
44 (1) the activity is conducted on the affected site or on different
45 premises that are under common control or are contiguous to or phys-
46 ically connected with the affected site and the activity manages exclu-
47 sively hazardous waste and/or petroleum from such affected site,
48 (2) the activity satisfies all substantive technical requirements
49 applicable to like activity conducted pursuant to a permit as determined
50 by the department, and
51 (3) the activity is conducted under such voluntary agreement;
52 (vi) one stating that the department shall not consider such affected
53 person an operator of such affected site based solely upon execution or
54 implementation of such voluntary agreement for purposes of remediation
55 liability;
S. 1409 118 A. 2109
1 (vii) a requirement that the affected person conduct investigation
2 and/or remediation activities pursuant to one or more work plans which
3 are approved by the department;
4 (viii) a requirement that the affected person shall submit, upon the
5 department's request, one or more remedial alternatives consistent with
6 soil category 1 where the department has determined that the affected
7 site constitutes a significant threat to the public health or the envi-
8 ronment; and
9 (ix) the inclusion of other conditions considered necessary by the
10 department concerning the effective and efficient implementation of this
11 title, and, where the affected person is a type A affected person, the
12 department shall include provisions relating to recovery of state costs
13 incurred before the effective date of such voluntary agreement.
14 b. A work plan shall include, but not be limited to, the following
15 requirements:
16 (i) a work plan for the investigation of the affected site shall
17 provide for the investigation and characterization of the nature and
18 extent of the contamination within the boundaries of the affected site;
19 provided, however, that a type A affected person shall also be required
20 to investigate and characterize the nature and extent of contamination
21 emanating from such affected site. A type B affected person must perform
22 an exposure assessment consisting of an evaluation of the pathways by
23 which a receptor could be exposed to such contamination, in order to
24 determine the risk to public health and the environment from any contam-
25 ination emanating from such affected site. The work plan shall require
26 that the affected person cause a final report to be prepared and submit-
27 ted to the department that identifies the investigation activities
28 completed pursuant to the work plan. Such final report, at a minimum,
29 shall:
30 A. fully characterize the nature and extent of contamination at the
31 affected site: a type A affected person shall also fully characterize
32 the nature and extent of contamination that has migrated from the
33 affected site; and a type B affected person shall identify the results
34 of the off-site exposure assessments;
35 B. state whether the completed investigation has demonstrated that
36 conditions at the affected site (i) require remediation in order to meet
37 the remedial goal of the voluntary cleanup program or (ii) meet the
38 remedial goal of the voluntary cleanup program without necessity for
39 remediation; and
40 C. if the final report certifies that no remediation is required to
41 meet the remedial goal of the voluntary cleanup program, then the final
42 report shall also demonstrate the same requirements as set forth in
43 subdivision two of this section;
44 (ii) a work plan for the remediation of the affected site, other than
45 a work plan for an interim remedial measure, shall provide for the
46 development and implementation of a remedial program for such contam-
47 ination within the boundaries of such affected site; provided, however,
48 that a type A affected person shall also be required to provide in such
49 work plan for the development and implementation of a remedial program
50 for contamination related to the affected site but located outside the
51 boundaries of the affected site. The remedial goal of any such remedial
52 program shall be the protection of public health and the environment,
53 with the minimum objective being to eliminate or mitigate all signif-
54 icant threats to public health and the environment presented by the
55 hazardous waste and/or petroleum through proper application of scientif-
56 ic and engineering principles, and such remedial program must be
S. 1409 119 A. 2109
1 selected upon due consideration of the evaluation factors set forth in
2 paragraph b of subdivision one of section 27-1313 of this article. Such
3 work plan must contain an analysis that such proposed remedy was
4 assessed using such evaluation factors. Such work plan must provide that
5 the soil cleanup levels be consistent with the soil cleanup levels set
6 forth in rules and regulations, as amended, promulgated pursuant to
7 section 27-1315 and subdivision five of section 27-1316 of this article;
8 until such regulations are promulgated, the department shall determine
9 cleanup levels for contaminants in soil using site specific data. The
10 department may approve a work plan that includes institutional controls
11 and/or engineering controls as components of an interim remedial measure
12 or a remedial program, but only if the work plan requires the owner of
13 such real property to annually submit to the department a written state-
14 ment by an individual licensed or otherwise authorized in accordance
15 with article one hundred forty-five of the education law to practice the
16 profession of engineering, or by such other expert as the department may
17 find acceptable certifying under penalty of perjury that the institu-
18 tional controls and engineering controls employed to remediate such
19 contamination are unchanged from the previous certification and that
20 nothing has occurred that would constitute a violation of any such
21 controls, and gives access to such real property reasonable under the
22 circumstances to evaluate continued maintenance of such controls. The
23 department shall establish and maintain a database with relevant infor-
24 mation on such controls and shall include such information on its home-
25 page on the internet and make such information available for public
26 inspection at the office of the county clerk or register for each county
27 and at the office of the town clerk for each town in Suffolk and Nassau
28 counties;
29 (iii) a work plan for remediation pursuant to an interim remedial
30 measure shall contain such provisions as the department deems appropri-
31 ate. The work plan shall require that the affected person cause a final
32 report to be prepared and submitted to the department that identifies
33 the activities completed pursuant to such work plan; and
34 (iv) at any time during the evaluation of a proposed work plan, the
35 department may request that an affected person submit additional or
36 corrected information to the department. An affected person shall either
37 comply with the request or withdraw such proposed work plan from consid-
38 eration.
39 2. For a work plan requiring remediation, the affected person shall
40 cause a final report to be prepared and submitted to the department that
41 identifies the remediation activities completed pursuant to such work
42 plan. A final report for a work plan requiring remediation, other than
43 an interim remedial measure, shall, at a minimum, demonstrate, as appro-
44 priate, that:
45 a. there is no contamination by hazardous waste or petroleum of the
46 soil, sediment, surface water, or groundwater on or underlying such
47 affected site or, if required by this title, such areas off-site which
48 are or have been impacted by on-site contamination in concentrations
49 exceeding the requirements for remediation set forth in such work plan
50 for remediation of such affected site;
51 b. the data submitted to the department demonstrates that the applica-
52 ble remediation requirements set forth in the work plan have been or
53 will be achieved in accordance with the timeframes, if any, established
54 in such work plan;
55 c. the use restrictions, if any are required by the voluntary agree-
56 ment, have been recorded and indexed as a declaration of restrictions in
S. 1409 120 A. 2109
1 the office of the recording officer for the county or counties where
2 such affected site is located in the manner prescribed by article nine
3 of the real property law. Such declaration of restriction shall contain
4 the name of the record owner of such affected site along with tax map
5 parcel number or the section, block, and lot number of such affected
6 site; or
7 d. the department has approved a plan submitted by such affected
8 person for the proper operation, maintenance, and monitoring of engi-
9 neering controls, if any are required by such work plan, used to contain
10 or control the contamination at or from such affected site.
11 3. In the event that the affected person is not required by this title
12 to conduct an investigation or perform remediation outside the property
13 boundaries of the affected site, then the department shall require the
14 person responsible according to applicable principles of statutory or
15 common law liability, other than such affected person, to conduct the
16 off-site investigation and remediation if hazardous waste and/or petro-
17 leum that have migrated from the affected site pose a significant threat
18 to public health or the environment. If such responsible person fails
19 to undertake or undertakes and fails to complete such off-site investi-
20 gation and/or remediation, the state shall use moneys from the remedial
21 program transfer fund established pursuant to section ninety-seven-cccc
22 of the state finance law to undertake the investigation and/or remedi-
23 ation of such contamination. The state's costs incurred relative to
24 such off-site contamination shall be recoverable from the person or
25 persons responsible.
26 4. The commissioner shall use best efforts to approve, modify, or
27 reject a proposed work plan within sixty days from its receipt;
28 provided, however, that the commissioner shall use best efforts to
29 approve, modify, or reject a proposed work plan for remediation, other
30 than a work plan for an interim remedial measure, within sixty days
31 after the end of the comment period or the close of the public meeting
32 provided by section 27-1409 of this title, whichever is later, and after
33 evaluating any comments received.
34 a. If the commissioner rejects a proposed work plan, the commissioner
35 shall notify the affected person and specify the reasons for rejecting
36 same.
37 b. If the commissioner approves or modifies such proposed work plan,
38 the commissioner shall notify the affected person, in writing, that the
39 proposed work plan has been approved or modified. If the commissioner
40 requires a modification, the affected person may agree to modify such
41 proposed work plan or withdraw it from consideration.
42 5. The affected person shall execute a voluntary agreement that shall
43 contain the matters set forth in this title. The affected person shall
44 carry out the terms of the voluntary agreement.
45 6. Nothing herein shall prohibit or limit the department from termi-
46 nating a voluntary agreement at any time during its implementation if
47 the affected person subject to such voluntary agreement fails to comply
48 substantially with such agreement's terms and conditions.
49 7. Nothing herein shall require the department to enter into a volun-
50 tary agreement with any person.
51 § 27-1409. Citizen participation/public notification.
52 1. The department shall place a notification of receipt of a request
53 to participate in the voluntary cleanup program pursuant to this title
54 in the environmental notice bulletin and a newspaper in general circu-
55 lation in the municipality wherein such affected site is located. The
56 department shall also provide notice thereof in writing to the chief
S. 1409 121 A. 2109
1 executive officer of each county, city, town and village in which such
2 affected site is located, the public water supplier which services the
3 area in which such affected site is located, and any person who has
4 requested to be placed on the site contact list. For purposes of this
5 section "water supplier" means any public water system as such term is
6 defined for the purposes of the sanitary code of the state of New York
7 as authorized by section two hundred twenty-five of the public health
8 law.
9 2. Upon the department's finalization of a work plan for investi-
10 gation, the department must notify individuals, groups and/or organiza-
11 tions that have expressed interest in or are affected by the work plan
12 of such work plan, and must publish a notice in the environmental notice
13 bulletin. Further, upon the satisfactory completion of the investigation
14 performed under such voluntary agreement, the department must notify
15 individuals, groups and/or organizations that have expressed interest in
16 or are affected by the voluntary agreement and publish a notice in the
17 environmental notice bulletin regarding such satisfactory completion.
18 3. Before the department finalizes a proposed work plan for remedi-
19 ation, other than a work plan for an interim remedial measure, the
20 department must notify individuals, groups, and organizations that have
21 expressed interest in or are affected by the proposed work plan of the
22 proposed work plan for remediation and publish a notice requesting
23 comments concerning the proposed work plan in the environmental notice
24 bulletin. Such notice shall provide for a forty-five day public comment
25 period following publication of the notice required under this section.
26 The department shall hold a public meeting on the proposed work plan if
27 the commissioner has found that the affected site constitutes a signif-
28 icant threat to the public health or environment.
29 § 27-1411. Covenant not to sue.
30 1. After the affected person has successfully completed the implemen-
31 tation of a work plan and where such affected person can certify that
32 the remedial goal of the voluntary cleanup program, both on the affected
33 site and, if required by this title, such areas off-site which are or
34 have been impacted by on-site contamination, has been achieved and that
35 the requirements of such work plan as well as the relevant provisions of
36 paragraph b of subdivision two of section 27-1407 of this title have
37 been satisfied, such affected person shall submit to the department a
38 written certification prepared by an individual licensed or otherwise
39 authorized in accordance with article one hundred forty-five of the
40 education law to practice the profession of engineering substantiating
41 that the affected site meets the remedial goal of the voluntary cleanup
42 program as set forth in this title and that the requirements of such
43 work plan as well as the relevant provisions of paragraph b of subdivi-
44 sion two of section 27-1407 of this title have been satisfied.
45 2. Upon the department's receipt of such certification, the department
46 shall review the final report, the certification, and the data submitted
47 pursuant to the voluntary agreement, as well as any other relevant
48 information regarding the affected site. The department shall provide
49 the affected person, upon its satisfaction that the remedial goal of the
50 voluntary cleanup program and the requirements of the work plan as well
51 as the relevant provisions of paragraph b of subdivision two of section
52 27-1407 of this title for the affected site and, if required under this
53 title, such areas off-site which are or have been impacted by on-site
54 contamination have been achieved, with a covenant not to sue, binding
55 upon the state, for any liability, including any future liability or
56 claim for the further remediation of hazardous waste and/or petroleum at
S. 1409 122 A. 2109
1 or from the affected site that was the subject of such voluntary agree-
2 ment, except that a type A affected person shall not receive a release
3 for natural resource damages that may be available under federal law.
4 Additionally, the state nonetheless shall reserve all of its rights
5 concerning, and such covenant shall not extend to, any further investi-
6 gation and/or remediation the department deems necessary, as a result
7 of:
8 a. a failure to comply with the terms and conditions of the voluntary
9 agreement;
10 b. a fraudulent demonstration that the cleanup levels identified
11 pursuant to the voluntary agreement were reached;
12 c. a release or threatened release at the affected site subsequent to
13 the effective date of the voluntary agreement;
14 d. a change in the affected site's use subsequent to the effective
15 date of the voluntary agreement to a use requiring a lower level of
16 residual contamination, unless additional remediation is undertaken
17 which shall meet the standard for protection of the public health and
18 environment that applies under this title; or
19 e. information received, in whole or in part, after the department's
20 execution of such voluntary agreement, which indicates that the activ-
21 ities performed, or to be performed, under such voluntary agreement will
22 not be, or are not, protective of the public health or environment for
23 such use of the affected site.
24 3. The reservation contained in paragraph d of subdivision two of this
25 section shall not be reserved in the event that the level of soil
26 contamination at the affected site is less than that set forth in soil
27 category 1, as that term is described in paragraph a of subdivision
28 three of section 27-1316 of this article.
29 4. 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 volun-
39 tary agreement on which such covenant was based. A notice of the volun-
40 tary agreement containing such covenant shall be recorded and indexed as
41 a 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 5. 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 6. 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. 1409 123 A. 2109
1 proceeding against any person who is not subject to the voluntary agree-
2 ment.
3 7. 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 8. 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 9. An affected person who implements a voluntary agreement executed by
14 such affected person and the department pursuant to this title shall not
15 be held liable for claims for contribution concerning matters addressed
16 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 2. Such application shall be on a form provided by the department and
28 shall be certified under penalty of perjury.
29 3. The commissioner shall only issue a remediation certificate if such
30 affected person is a type B affected person.
31 4. Such remediation certificate shall state:
32 a. that the affected person is a type B affected person;
33 b. that the affected person has satisfactorily completed the activ-
34 ities required by the voluntary agreement and this title.
35 5. A remediation certificate issued pursuant to subdivision three of
36 this section may be modified or revoked by the commissioner upon a find-
37 ing that:
38 a. the affected person has failed to comply with the terms and condi-
39 tions of the voluntary agreement;
40 b. the affected person made a misrepresentation of a material fact
41 tending to demonstrate that it was qualified as a type B affected person
42 or that the cleanup levels identified in the voluntary agreement were
43 reached; or
44 c. there is good cause for such modification or revocation.
45 6. Upon the commissioner's determination pursuant to subdivision three
46 or five of this section, the commissioner shall provide the affected
47 person with notice of such determination and notice of the right to
48 appeal such determination. The commissioner's determination shall be
49 final unless a hearing is requested by certified mail sent to the
50 commissioner within thirty days after receiving notice of such determi-
51 nation. After such hearing, the commissioner shall give notice of final
52 determination to such affected person. The commissioner may promulgate
53 regulations to effectuate the purposes of this section.
54 § 27-1415. Payment of state costs.
55 1. Pursuant to timetables contained in the voluntary agreement, the
56 affected person shall pay all state costs incurred in negotiating and
S. 1409 124 A. 2109
1 overseeing implementation of such agreement. In addition, a type A
2 affected person shall pay all costs incurred by the state up to the
3 effective date of such voluntary agreement.
4 2. Payment of such state costs identified in subdivision one of this
5 section shall be made to the remedial program transfer fund established
6 pursuant to section ninety-seven-cccc of the state finance law.
7 3. In the event that either the affected person or the department
8 withdraws from a voluntary agreement before such agreement's completion,
9 or upon completion of the activities undertaken pursuant to the volun-
10 tary agreement, all unexpended moneys which the affected person shall
11 have paid into such account shall be reimbursed to the affected person
12 after a final accounting of all claims upon such affected person's
13 payments.
14 § 27-1417. Change of use.
15 1. At least sixty days before the start of physical alteration or
16 construction constituting a change of use at an affected site which is
17 the subject of a covenant not to sue issued pursuant to section 27-1411
18 of this title, or at least sixty days before a change of use involving
19 any physical alteration or construction, as the case may be, the owner
20 or the person or entity proposing to make such change of use shall
21 provide written notification to the department.
22 2. No person shall engage in any activity at an affected site remedi-
23 ated pursuant to this title that is not consistent with restrictions
24 placed upon the use of the property, or that will, or that reasonably is
25 anticipated to: prevent or interfere significantly with a proposed,
26 ongoing, or completed project under this title; or expose the public
27 health or the environment to a significantly increased threat of harm or
28 damage at such affected site.
29 3. For the purposes of this section:
30 a. "change of use" means the transfer of title to all or part of an
31 affected site being addressed under this title, or any activity that is
32 likely to disrupt or expose hazardous waste and/or petroleum or to
33 increase direct human exposure to hazardous waste and/or petroleum; or
34 any other conduct that will or may tend to significantly interfere with
35 an ongoing or completed project under this title.
36 b. "complete notice" means a notice that adequately apprises the
37 department of the contemplated change and how such change may affect the
38 property's proposed, ongoing, or completed remediation including but not
39 limited to the ability to implement the engineering and institutional
40 controls associated with the affected site's remediation.
41 § 27-1419. Immunity.
42 Section eight of the court of claims act or any other provision of law
43 to the contrary notwithstanding, the state shall be immune from liabil-
44 ity and action with respect to any act or omission done in the discharge
45 of the department's responsibilities pursuant to this title; provided,
46 however, that this section shall not limit the liability which may
47 otherwise exist for the unlawful, willful, or malicious acts or omis-
48 sions on the part of the state, state agencies, or their officers,
49 employees, or agents; or for the ownership or responsibility for the
50 disposal of hazardous waste and/or petroleum according to law.
51 § 27-1421. Permit waivers.
52 The department, by and through the commissioner, shall be authorized
53 to exempt a person from the requirement to obtain any state or local
54 permit or other authorization for any activity needed to implement a
55 program for the investigation and/or remediation of hazardous waste
56 and/or petroleum; provided that the activity is conducted in a manner
S. 1409 125 A. 2109
1 which satisfies all substantive technical requirements applicable to
2 like activity conducted pursuant to a permit.
3 § 27-1423. Access to sites.
4 The department, by and through the commissioner, shall be authorized
5 to:
6 1. Require that any person permit a duly designated officer or employ-
7 ee of the department or of a municipal corporation, or any agent,
8 consultant, or contractor of the department or of a municipal corpo-
9 ration, or any other person, including an employee, agent, consultant,
10 or contractor of a responsible person acting at the direction of the
11 department, so authorized in writing by the commissioner, to enter upon
12 any property which has or may have been the site of hazardous waste
13 and/or petroleum disposal, and/or areas near such site, for the follow-
14 ing purposes:
15 a. to inspect and take samples of such hazardous waste and/or petrole-
16 um and/or environmental media, utilizing such sampling methods as may be
17 necessary or appropriate, including without limitation soil borings and
18 monitoring wells; provided, that no sampling methods involving the
19 substantial disturbance of the ground surface of such property may be
20 utilized until after a minimum of ten days' written notice thereof shall
21 have been provided to the owner and operator and occupant of such prop-
22 erty, if identifiable by reasonable efforts, unless the commissioner
23 makes a written determination that such notice will not allow the
24 protection of the public health or the environment, in which case two
25 days' written notice shall be sufficient;
26 b. to implement the investigation and/or remediation of hazardous
27 waste and/or petroleum and/or environmental media; provided that no such
28 work may be undertaken until after a minimum of ten days' written notice
29 thereof shall have been provided to the owner and operator and occupant
30 of such property, if identifiable by reasonable efforts, unless the
31 commissioner makes a written determination that such notice will not
32 allow the protection of the public health or the environment, in which
33 case two days' written notice shall be sufficient.
34 2. a. Require that any person furnish to the department, in a form and
35 manner as prescribed by the department, information relating to the
36 current and past hazardous waste and/or petroleum generation, treatment,
37 storage, disposal, and/or transportation activities of such person or
38 any other person now or formerly under the control of such person; in
39 the event such person cannot comply therewith, in whole or in part, such
40 person shall furnish to the department information describing all
41 efforts made by such person to comply therewith; any information so
42 furnished to the department shall be considered a "written instrument"
43 as defined in subdivision three of section 175.00 of the penal law;
44 b. Require that any person permit a duly designated officer or employ-
45 ee of the department at all reasonable times to have access to and to
46 copy all books, papers, documents, and records relating to the current
47 and past hazardous waste and/or petroleum generation, treatment, stor-
48 age, disposal, and/or transportation activities of such person or any
49 person now or formerly under the control of such person;
50 c. Require, by subpoena issued in the name of the department, the
51 production of books, papers, documents, and other records, and the
52 rendition of testimony by deposition under oath of any person relating
53 to the current and past hazardous waste and/or petroleum generation,
54 treatment, storage, disposal, and/or transportation activities of such
55 person or any person now or formerly under the control of such person;
56 such subpoenas and depositions shall be regulated by the civil practice
S. 1409 126 A. 2109
1 law and rules; the commissioner may invoke the powers of the supreme
2 court of the state of New York or any other court of competent jurisdic-
3 tion to compel compliance therewith.
4 § 15. Subdivision 8 of section 52-0101 of the environmental conserva-
5 tion law, as added by chapter 512 of the laws of 1986, is amended to
6 read as follows:
7 8. "Hazardous waste" shall have the definition set forth in [title
8 nine of article twenty-seven] section 27-1301 of this chapter.
9 § 16. Subdivision 1 of section 52-0103 of the environmental conserva-
10 tion law, as amended by chapter 9 of the laws of 1994, is amended to
11 read as follows:
12 1. For remediation of hazardous waste sites, as set forth in title
13 three of this article and for the closure of municipal landfills, as set
14 forth in title five of article fifty-four of this chapter, one billion
15 two hundred million dollars, of which[: (i)] up to one hundred million
16 dollars shall be made available for state assistance payments toward the
17 cost of the closure of municipal landfills, as set forth in title five
18 of article fifty-four of this chapter; [and (ii) up to one hundred thou-
19 sand dollars shall be made available for the study of hazardous
20 substance waste disposal sites, as defined in section 27-1316 of this
21 chapter;] and
22 § 16-a. Subdivision 1 of section 54-0503 of the environmental conser-
23 vation law, as added by chapter 610 of the laws of 1993, is amended to
24 read as follows:
25 1. The landfill site has not been classified pursuant to subparagraph
26 one or two of paragraph b of subdivision [four] two of section 27-1305
27 of this chapter. Sites which have been removed from the registry may
28 apply for state assistance payments.
29 § 17. Subdivision 7 of section 56-0101 of the environmental conserva-
30 tion law, as added by chapter 413 of the laws of 1996, is amended to
31 read as follows:
32 7. "Environmental restoration project" means a project to investigate
33 or to remediate hazardous substances [located on real property held in
34 title by a municipality,] pursuant to title five of this article.
35 § 18. Section 56-0502 of the environmental conservation law, as added
36 by chapter 413 of the laws of 1996, is amended to read as follows:
37 § 56-0502. Definitions.
38 [For] 1. "Municipality", for purposes of this title ["municipality"],
39 shall have the same meaning as provided in subdivision [twelve] fifteen
40 of section 56-0101 of this article, except that such term shall not
41 refer to a municipality that generated, transported, or disposed of,
42 arranged for, or that caused the generation, transportation, or disposal
43 of hazardous substance located at real property proposed to be investi-
44 gated or to be remediated under an environmental restoration project.
45 2. "Cost", for purposes of this title, shall have the same meaning as
46 provided in subdivision four of section 56-0101 of this article, except
47 that such term shall not include the requirement to reduce the cost of
48 an approved project in accordance with any federal or state funds for
49 the project received or to be received by the municipality.
50 3. "Environmental restoration investigation project" shall mean a
51 project, undertaken in accordance with the requirements of this title,
52 to investigate hazardous substances located in, on, or emanating from
53 real property either held in title by a municipality or for which fee
54 title may be acquired by a municipality.
55 4. "Environmental restoration remediation project" shall mean a
56 project, undertaken in accordance with the requirements of this title,
S. 1409 127 A. 2109
1 to remediate hazardous substances located in, on, or emanating from real
2 property held in title by a municipality.
3 5. "State assistance", for purposes of this title, shall mean:
4 (a) in the case of a contract authorized by subdivision one of section
5 56-0503 of this title, payments made to a municipality to reimburse the
6 municipality for the state share of the costs incurred by the munici-
7 pality to undertake an environmental restoration project;
8 (b) in the case of a contract authorized by subdivision one-a of
9 section 56-0503 of this title, payments made for the benefit of a muni-
10 cipality for the state share of the costs incurred by the state to
11 undertake an environmental restoration project.
12 § 19. Section 56-0503 of the environmental conservation law, as added
13 by chapter 413 of the laws of 1996, is amended to read as follows:
14 § 56-0503. Environmental restoration projects; state assistance.
15 1. The commissioner may enter into a contract with a municipality to
16 provide state assistance to such municipality to undertake an environ-
17 mental restoration project. The amount of state assistance payment for
18 such project shall be up to an amount of [seventy-five]:
19 (a) ninety percent of the eligible costs of such project, subject to
20 the provisions set forth in paragraph (b) of this subdivision;
21 (b) one hundred percent of the eligible costs of any remediation
22 directed by the department to be undertaken outside the boundaries of
23 the real property that is subject to an environmental restoration
24 project approved by the department.
25 1-a. The commissioner may enter into a contract with a municipality to
26 undertake an environmental restoration project if, in the discretion of
27 the commissioner, it is cost-effective for the department to do so,
28 considering such factors as may be appropriate. The amount of state
29 assistance payment for such project shall be up to an amount of:
30 (a) ninety percent of the eligible costs of such project, subject to
31 the provisions set forth in paragraph (b) of this subdivision;
32 (b) one hundred percent of the eligible costs of any remediation
33 undertaken outside the boundaries of the real property that is subject
34 to an environmental restoration project.
35 2. In addition to such other terms and conditions that the commission-
36 er may deem to be appropriate, [such] a contract authorized by subdivi-
37 sion one of this section shall provide as follows:
38 (a) An estimate of the cost of such project as determined by the
39 commissioner at the time of such contract's execution;
40 (b) An agreement by the commissioner to periodically reimburse the
41 municipality for eligible costs incurred during the progress of such
42 project. Such payments shall be subject to final computation and deter-
43 mination of the total state assistance share of the eligible costs of
44 the entire environmental restoration project;
45 (c) A provision [providing] that if [any federal payments], in accord-
46 ance with the required departmental approval of any settlement with a
47 responsible party, any responsible party payments[, and/or payments
48 received from the disposition of the real property subject to an envi-
49 ronmental restoration project] become available to the municipality,
50 before, during or after the completion of an environmental restoration
51 project, which were not included when the state share was calculated
52 pursuant to this section, the state assistance share shall be recalcu-
53 lated, and the municipality shall pay to the state, for deposit into the
54 environmental restoration project account of the hazardous waste remedi-
55 al fund established under section ninety-seven-b of the state finance
56 law, the difference between the original state assistance payment and
S. 1409 128 A. 2109
1 the recalculated state share. Recalculation of the state share shall be
2 done each time a [federal payment,] payment from a responsible party[,
3 or payment received from the disposition of such property] is received
4 by the municipality;
5 (d) A provision that if any monies received from [any federal
6 payments, payments from a responsible party, and/or payments received
7 from] the disposition of [such property] the real property subject to an
8 environmental restoration project exceed the municipality's cost of such
9 property, including taxes owed to the municipality upon acquisition, and
10 the municipality's cost of the environmental restoration project, the
11 amount of such excess necessary to reimburse the state of New York for
12 the state assistance provided to the municipality under this title shall
13 be [divided equally between the municipality and the state of New York,
14 the state share of which shall be deposited] paid to the state of New
15 York for deposit into the environmental restoration project account of
16 the hazardous waste remedial fund established under section ninety-sev-
17 en-b of the state finance law;
18 (e) An agreement by the municipality to proceed expeditiously with
19 and complete such project in accordance with plans approved for payment
20 of the municipality's share of such project's cost;
21 (f) An agreement by the municipality that it shall prepare and imple-
22 ment a public participation plan [prior to remedial activities undertak-
23 en pursuant to this section. The] for environmental restoration projects
24 undertaken pursuant to this title. The requirements of the plan shall be
25 governed by decision of the municipality to proceed with remediation of
26 the property under this title. However, in all cases, implementation of
27 the plan shall be completed as part of the project. In those cases where
28 the municipality does not intend to proceed with remediation of the
29 property, the plan shall provide timely and accessible disclosure of the
30 results of the investigation to the interested public. The plan shall
31 provide for adequate public notice of the availability of the investi-
32 gation results; an opportunity for submission of written comments; and a
33 filing of a notice of the results of the investigation as authorized by
34 subdivision three of section three hundred sixteen-b of the real proper-
35 ty law. Where the municipality intends to proceed with remediation of
36 the property under this title, the plan shall provide opportunities for
37 early, inclusive participation prior to the selection of a preferred
38 course of action, facilitate communication, including dialogue among the
39 municipality, the department, and the interested public, and provide
40 timely and accessible disclosure of information. At a minimum, the
41 design of the plan shall take into account the scope and scale of the
42 proposed environmental restoration remediation project, local interest,
43 and other relevant factors. The plan shall also provide for: adequate
44 public notice of the availability of a draft remedial plan; a forty-five
45 day period for submission of written comments; a public hearing on such
46 plan if substantive issues are raised by members of the affected commu-
47 nity; and technical assistance if so requested by members of the
48 affected community. Provided, however, that the requirements of this
49 subdivision shall not apply to interim remedial measures undertaken as
50 part of an environmental restoration project [to address emergency site
51 conditions]. In such instance, the department or such persons implement-
52 ing the interim remedial measure or making the request shall conduct
53 public participation activities as the department deems necessary and
54 appropriate under such circumstances.
55 (g) An agreement by the municipality that it shall put into place any
56 engineering and/or institutional controls (including deed restrictions)
S. 1409 129 A. 2109
1 that the department may deem necessary to allow the contemplated use to
2 proceed, that such engineering and/or institutional controls shall be
3 binding on such municipality, any successor in title, and any lessees
4 and that any successors in title and any lessees cannot challenge state
5 enforcement of such controls;
6 (h) In the event that such engineering controls and/or institutional
7 controls are necessary, the municipality and its successors in title
8 shall agree to develop a plan which ensures that such engineering and/or
9 institutional controls shall be continually maintained in the manner
10 required by the department. Such plan shall be approved by the depart-
11 ment. Failure to implement the plan or maintain such controls shall
12 constitute a violation of such contract and shall terminate for the
13 duration of such failure the protection afforded under subdivision one
14 of section 56-0509 of this title;
15 (i) In the event that deed restrictions are required, such munici-
16 pality shall agree to cause such deed restrictions to be recorded and
17 indexed as declarations of restrictions in the office of the recording
18 officer of the county or counties where the real property subject to
19 such environmental restoration project is located in the manner
20 prescribed by article nine of the real property law. Such declaration of
21 restriction shall contain the name of the owner of record of such prop-
22 erty, along with the tax map parcel number or the section, block, and
23 lot number of such property; and
24 (j) A provision that exempts a municipality and any successor in
25 title, lender, or lessee from the requirement to obtain any state or
26 local permit or other authorization for any activity needed to implement
27 [such] a project [that is conducted on the real property subject to such
28 project so long as] to investigate or remediate hazardous substances
29 pursuant to this title; provided that the activity is conducted in a
30 manner which satisfies all substantive technical requirements applicable
31 to like activity conducted pursuant to a permit.
32 3. In addition to such other terms and conditions that the commission-
33 er may deem to be appropriate, a contract authorized by subdivision
34 one-a of this section shall provide as follows:
35 (a) An estimate of the cost of such project as determined by the
36 commissioner at the time of such contract's execution;
37 (b) An agreement by the municipality to periodically reimburse the
38 state for eligible costs incurred during the progress of such project.
39 Such payments shall be subject to final computation and determination of
40 the total state assistance share of the eligible costs of the entire
41 environmental restoration project;
42 (c) A provision that if, in accordance with the required departmental
43 approval of any settlement with a responsible party, any responsible
44 party payments become available to the municipality, before, during or
45 after the completion of an environmental restoration project, which were
46 not included when the state share was calculated pursuant to this
47 section, the state assistance share shall be recalculated, and the muni-
48 cipality shall pay to the state, for deposit into the environmental
49 restoration project account of the hazardous waste remedial fund estab-
50 lished under section ninety-seven-b of the state finance law, the
51 difference between the original state assistance payment and the recal-
52 culated state share. Recalculation of the state share shall be done each
53 time a payment from a responsible party is received by the municipality;
54 (d) A provision that if any monies received from the disposition of
55 the real property subject to an environmental restoration project exceed
56 the municipality's cost of such property, including taxes owed to the
S. 1409 130 A. 2109
1 municipality upon acquisition, and the municipality's cost of the envi-
2 ronmental restoration project, the amount of such excess necessary to
3 reimburse the state of New York for the state assistance provided to the
4 municipality under this title shall be paid to the state of New York for
5 deposit into the environmental restoration project account of the
6 hazardous waste remedial fund established under section ninety-seven-b
7 of the state finance law;
8 (e) An agreement by the municipality that it shall prepare and imple-
9 ment a public participation plan for environmental restoration projects
10 undertaken pursuant to this title. The requirements of the plan shall be
11 governed by decision of the department to proceed with remediation of
12 the property under this title. However, in all cases, implementation of
13 the plan shall be completed as part of the project. In those cases where
14 the department does not intend to proceed with remediation of the prop-
15 erty, the plan shall provide timely and accessible disclosure of the
16 results of the investigation to the interested public. The plan shall
17 provide for adequate public notice of the availability of the investi-
18 gation results; an opportunity for submission of written comments; and a
19 filing of a notice of the results of the investigation as authorized by
20 subdivision three of section three hundred sixteen-b of the real proper-
21 ty law. Where the department intends to proceed with remediation of the
22 property under this title, the plan shall provide opportunities for
23 early, inclusive participation prior to the selection of a preferred
24 course of action, facilitate communication, including dialogue among the
25 municipality, the department, and the interested public, and provide
26 timely and accessible disclosure of information. At a minimum, the
27 design of the plan shall take into account the scope and scale of the
28 proposed environmental restoration remediation project, local interest,
29 and other relevant factors. The plan shall also provide for: adequate
30 public notice of the availability of a draft remedial plan; a forty-five
31 day period for submission of written comments; a public hearing on such
32 plan if substantive issues are raised by members of the affected commu-
33 nity; and technical assistance if so requested by members of the
34 affected community. Provided, however, that the requirements of this
35 subdivision shall not apply to interim remedial measures undertaken as
36 part of an environmental restoration project. In such instance, the
37 department or such persons implementing the interim remedial measure or
38 making the request shall conduct public participation activities as the
39 department deems necessary and appropriate under such circumstances;
40 (f) An agreement by the municipality that it will allow the department
41 to put into place any engineering controls that the department may deem
42 necessary to allow the contemplated use to proceed, that it shall put
43 into place any institutional controls (including deed restrictions) that
44 the department may deem necessary to allow the contemplated use to
45 proceed, that such engineering and/or institutional controls shall be
46 binding on such municipality, any successor in title, and any lessees
47 and that any successors in title and any lessees cannot challenge state
48 enforcement of such controls;
49 (g) In the event that such engineering controls and/or institutional
50 controls are necessary, the municipality and its successors in title
51 shall agree to develop a plan which ensures that such engineering and/or
52 institutional controls shall be continually maintained in the manner
53 required by the department. Such plan shall be approved by the depart-
54 ment. Failure to implement the plan or maintain such controls shall
55 constitute a violation of such contract and shall terminate for the
S. 1409 131 A. 2109
1 duration of such failure the protection afforded under subdivision one
2 of section 56-0509 of this title;
3 (h) In the event that deed restrictions are required, such munici-
4 pality shall agree to cause such deed restrictions to be recorded and
5 indexed as declarations of restrictions in the office of the recording
6 officer of the county or counties where the real property subject to
7 such environmental restoration project is located in the manner
8 prescribed by article nine of the real property law. Such declaration of
9 restriction shall contain the name of the owner or record of such prop-
10 erty, along with the tax map parcel number or the section, block, and
11 lot number of such property; and
12 (i) A provision that exempts a municipality and any successor in
13 title, lender, or lessee from the requirement to obtain any state or
14 local permit or other authorization for any activity needed to implement
15 a project to investigate or remediate hazardous substances pursuant to
16 this title; provided that the activity is conducted in a manner which
17 satisfies all substantive technical requirements applicable to like
18 activity conducted pursuant to a permit.
19 § 20. Section 56-0505 of the environmental conservation law, as added
20 by chapter 413 of the laws of 1996, is amended to read as follows:
21 § 56-0505. Environmental restoration projects; criteria.
22 1. The department shall determine the eligibility of an environmental
23 restoration project for state assistance under this title based upon the
24 following criteria:
25 (a) the benefit to the environment realized by the expeditious remedi-
26 ation of the property proposed to be subject to such project;
27 (b) the economic benefit to the state by the expeditious remediation
28 of the property proposed to be subject to such project; and
29 (c) the potential opportunity of the property proposed to be subject
30 to such project to be used for public recreational purposes[; and
31 (d) the opportunity for other funding sources to be available for the
32 remediation of such property, including, but not limited to, enforcement
33 actions against responsible parties (other than the municipality to
34 which state assistance was provided under this title; or a successor in
35 title, lender, or lessee who was not otherwise a responsible party prior
36 to such municipality taking title to the property), state assistance
37 payments pursuant to title thirteen of article twenty-seven of this
38 chapter, and the existence of private parties willing to remediate such
39 property using private funding sources. Highest priority shall be grant-
40 ed to projects for which other such funding sources are not available].
41 2. The department shall not enter into a contract with a municipality
42 pursuant to section 56-0503 for an environmental restoration project for
43 any site listed in the registry of inactive hazardous waste sites under
44 section 27-1305 of this chapter and given a classification as described
45 in subparagraph one or two of paragraph b of subdivision [four] two of
46 such section 27-1305.
47 3. The remediation objective of an environmental restoration remedi-
48 ation project shall meet the same standard for protection of public
49 health and the environment that applies to remedial actions undertaken
50 pursuant to section 27-1313 of this chapter.
51 4. [After completion of such project, the municipality may use the
52 property for public purposes or may dispose of it. If the municipality
53 shall dispose of such property by sale to a responsible party, such
54 party shall pay to such municipality, in addition to such other consid-
55 eration, an amount of money constituting the amount of state assistance
56 provided to the municipality under this title plus accrued interest and
S. 1409 132 A. 2109
1 transaction costs and the municipality shall deposit that money into the
2 environmental restoration project account of the hazardous waste remedi-
3 al fund established under section ninety-seven-b of the state finance
4 law] Property may continue to be used for the purpose for which it is
5 being used prior to achievement of the environmental restoration
6 project's objectives if the department determines that the existing
7 state of contamination does not pose a risk sufficient to prohibit such
8 use from continuing, giving due regard to human health and protection,
9 and if the department determines that such use does not interfere with
10 the environmental restoration project.
11 5. In the event that [such] an environmental restoration project's
12 remediation objective shall not have been attained to the department's
13 satisfaction at the time of the municipality's disposition of such prop-
14 erty, such municipality shall be liable to ensure that such objective is
15 attained within the time called for in the state assistance contract.
16 6. If the municipality shall dispose of property subject to an envi-
17 ronmental restoration project by sale to a responsible party, such party
18 shall pay to such municipality, in addition to such other consideration,
19 an amount of money constituting the amount of state assistance provided
20 to the municipality under this title plus accrued interest and trans-
21 action costs, which the municipality shall then pay to the state for
22 deposit into the environmental restoration project account of the
23 hazardous waste remedial fund established under section ninety-seven-b
24 of the state finance law.
25 § 21. Section 56-0507 of the environmental conservation law, as added
26 by chapter 413 of the laws of 1996, is amended to read as follows:
27 § 56-0507. Recovery of state assistance.
28 1. A municipality receiving state assistance under this title under-
29 takes an environmental restoration project as agent of the state with
30 respect to the incurrence of eligible costs.
31 2. The state shall make all reasonable efforts to recover the full
32 amount of any state assistance provided under this title through liti-
33 gation brought under this section or other statute or under the common
34 law, or through cooperative agreements, with responsible parties (other
35 than the municipality to which state assistance was provided under this
36 title; or a successor in title, lender, or lessee who was not otherwise
37 a responsible party prior to the [municipality] municipality's taking
38 title to such property). Notwithstanding any requirement under this
39 section, the state may elect not to recover all or any portion of its
40 costs from a party responsible according to applicable principles of
41 statutory or common law liability where such party's liability arises
42 solely from ownership or operation of the subject property subsequent to
43 the disposal of hazardous substances at such property.
44 3. Any and all monies recovered or reimbursed pursuant to this section
45 shall be deposited into the environmental restoration project account of
46 the hazardous waste [remediation] remedial fund established under
47 section ninety-seven-b of the state finance law.
48 § 22. Subdivisions 1, 2, 3 and 5 of section 56-0509 of the environ-
49 mental conservation law, as added by chapter 413 of the laws of 1996,
50 are amended to read as follows:
51 1. (a) Notwithstanding any other provision of law and except as
52 provided in subdivision two of this section and in paragraph (h) of
53 subdivision two of section 56-0503 of this title, the following shall
54 not be liable to the state upon any statutory or common law cause of
55 action, or to any person upon any statutory cause of action arising out
56 of the presence of any hazardous substance in or on property at any time
S. 1409 133 A. 2109
1 before the effective date of a contract entered into pursuant to this
2 title:
3 (i) a municipality receiving state assistance under this title to
4 undertake an environmental restoration project and complying with the
5 terms and conditions of the contract providing such assistance; and
6 (ii) a successor in title to the real property subject to such project
7 where the municipality holds or held title to the real property; any
8 lessee of such property; and any person that provides financing to such
9 party relative to the remediation, restoration, or redevelopment of such
10 property[,]; provided that such successor in title, lessee, or lender
11 did not generate, arrange for, transport, or dispose, and did not cause
12 the generation, arrangement for, transportation, or disposal of any
13 hazardous substance located at such property, and did not own such prop-
14 erty.
15 (b) Notwithstanding any other provision of this title, any person
16 seeking the benefit of this subdivision shall bear the burden of proving
17 that a cause of action, or any part thereof, is attributable solely to
18 hazardous substances present in or on such parcel before the effective
19 date of such contract.
20 2. [Subdivision one of this section shall not apply to relieve any
21 municipality, successor in title, lessee, or lender from liability aris-
22 ing from:] Any municipality, successor in title, lessee, or lender iden-
23 tified in paragraph (a) of subdivision one of this section shall not
24 receive the liability protections identified in subdivisions one and
25 three of this section where liability results from:
26 (a) failing to implement such project to the department's satisfaction
27 or failing to comply with the terms and conditions of the contract;
28 (b) fraudulently demonstrating that the cleanup levels identified in
29 or to be identified in accordance with such project were reached;
30 (c) causing the release or threat of release at the property subject
31 to such project of any hazardous substance after the effective date of
32 such contract; [or]
33 (d) [changing such property's use from the intended use as identified
34 in the contract pursuant to section 56-0503 to a use requiring a lower
35 level of residual contamination unless the additional remedial activ-
36 ities are undertaken which shall meet the same standard for protection
37 of public health and the environment that applies to remedial actions
38 undertaken pursuant to 27-1313 of this chapter so that such use can be
39 implemented with sufficient protection of public health and the environ-
40 ment.] violating the provisions of section 56-0511 of this title;
41 (e) failing to implement the plan or to implement and maintain the
42 engineering and/or institutional controls required by the department in
43 accordance with paragraph (h) of subdivision two of section 56-0503 of
44 this title; or
45 (f) using property subject to an environmental restoration project in
46 violation of the requirements of this title.
47 3. The state shall indemnify and save harmless any municipality,
48 successor in title, lessee, or lender [indentified] identified in para-
49 graph (a) of subdivision one of this section in the amount of any judg-
50 ment[,] or settlement, obtained against such municipality, successor in
51 title, lessee, or lender in any court for any common law cause of action
52 arising out of the presence of any hazardous substance in or on property
53 at anytime before the effective date of a contract entered into pursuant
54 to this title. Such municipality, successor in title, lessee, or lender
55 shall be entitled to representation by the attorney general, unless the
56 attorney general determines, or a court of competent jurisdiction deter-
S. 1409 134 A. 2109
1 mines, that such representation would constitute a conflict of interest,
2 in which case the attorney general shall certify to the comptroller that
3 such party is entitled to private counsel of its choice, and reasonable
4 attorneys' fees and expenses shall be reimbursed by the state. Any
5 settlement of such an action shall be subject to the approval of the
6 attorney general as to form and amount, and this subdivision shall not
7 apply to any settlement of any such action which has not received such
8 approval.
9 5. In addition to any other powers the department may have, including,
10 but not limited to, the powers set forth in section 56-0517 of this
11 title, the department shall have the authority to periodically inspect
12 [each project site] property to ensure that the use of the property
13 complies with the terms and conditions of [the contract] any engineering
14 and/or institutional controls placed on the property.
15 § 23. Section 56-0511 of the environmental conservation law, as added
16 by chapter 413 of the laws of 1996, is amended to read as follows:
17 § 56-0511. Change of use.
18 1. At least sixty days before the start of physical alteration or
19 construction constituting a change of use at a property investigated or
20 remediated under an environmental restoration project, or at least sixty
21 days before a change of use at such a property not involving any phys-
22 ical alteration or construction, as the case may be, the person or enti-
23 ty proposing to make a change of use shall provide written notification
24 to the department and the clerks of the county and other municipalities
25 in which such property is located.
26 2. No person shall engage in any activity at a property investigated
27 or remediated under an environmental restoration project that is not
28 consistent with restrictions placed upon the use of the property, or
29 that will, or that reasonably is anticipated to: prevent or interfere
30 significantly with a proposed, ongoing, or completed project; or expose
31 the public health or the environment to a significantly increased threat
32 of harm or damage [at] from such property. If the commissioner deter-
33 mines that a proposed change of use is prohibited pursuant to this
34 section, he or she shall, within forty-five days after receipt of the
35 complete notice required by this section, provide the person giving such
36 notice with a written determination that such change of use will not be
37 authorized, together with the reasons for such determination.
38 3. For the purposes of this section:
39 (i) "change of use" means the transfer of title to all or part of
40 property subject to an environmental restoration [agreement] project,
41 the erection of any structure on such property, [the paving of such
42 property for use as a roadway or parking lot,] and the creation of a
43 park or other public or private recreational facility on such property,
44 or any activity that is likely to disrupt or expose hazardous substances
45 or to increase direct human exposure; or any other conduct that will or
46 may tend to significantly interfere with an ongoing or completed envi-
47 ronmental restoration project. "Change of use" shall not include a
48 transfer of property where physical alteration of the property subject
49 to an environmental restoration project is not contemplated. In the case
50 of title transfers with no physical alteration of property subject to an
51 environmental restoration project, owners of property shall provide
52 notice of proposed transfers of title within a reasonable time in
53 advance of the transfer.
54 (ii) "complete notice" means a notice that adequately apprises the
55 department of the contemplated physical alteration of the property and
56 how such alteration may affect the property's proposed, ongoing, or
S. 1409 135 A. 2109
1 completed [remediation] project, or of the proposed new owner's ability
2 to implement the engineering and institutional controls associated with
3 the [property's remediation] property.
4 § 24. The environmental conservation law is amended by adding three
5 new sections 56-0513, 56-0515 and 56-0517 to read as follows:
6 § 56-0513. Immunity.
7 Section eight of the court of claims act or any other provision of law
8 to the contrary notwithstanding, the state shall be immune from liabil-
9 ity and action with respect to any act or omission done in the discharge
10 of the department's responsibilities pursuant to this title; provided,
11 however, that this section shall not limit the liability which may
12 otherwise exist for the unlawful, willful, or malicious acts or omis-
13 sions on the part of the state, state agencies, or their officers,
14 employees, or agents; or for the ownership or responsibility for the
15 disposal of hazardous substances according to law.
16 § 56-0515. Permit waivers.
17 1. The department shall be exempt from the requirement to obtain any
18 state or local permit or other authorization for any activity needed to
19 implement a project to investigate or remediate hazardous substances
20 pursuant to this title; provided that the activity is conducted in a
21 manner which satisfies all substantive technical requirements applicable
22 to like activity conducted pursuant to a permit.
23 2. The department, by and through the commissioner, shall be author-
24 ized to exempt a person from the requirement to obtain any state or
25 local permit or other authorization for any activity needed to implement
26 a project to investigate or remediate hazardous substances pursuant to
27 this title; provided that the activity is conducted in a manner which
28 satisfies all substantive technical requirements applicable to like
29 activity conducted pursuant to a permit.
30 § 56-0517. Access to sites.
31 The department, by and through the commissioner, shall be authorized
32 to:
33 1. Require that any person permit a duly designated officer or employ-
34 ee of the department or of a municipal corporation, or any agent,
35 consultant, or contractor of the department or of a municipal corpo-
36 ration, or any other person, including an employee, agent, consultant,
37 or contractor of a responsible person acting at the direction of the
38 department, so authorized in writing by the commissioner, to enter upon
39 any property which has or may have and hazardous substance on such prop-
40 erty, and/or areas near such property, for the following purposes:
41 (a) To inspect and take samples of such hazardous substance and/or
42 environmental media, utilizing such sampling methods as may be necessary
43 or appropriate, including without limitation soil borings and monitoring
44 wells; provided that no sampling methods involving the substantial
45 disturbance of the ground surface of such property may be utilized until
46 after a minimum of ten days' written notice thereof shall have been
47 provided to the owner and operator and occupant of such property, if
48 identifiable by reasonable efforts, unless the commissioner makes a
49 written determination that such notice will not allow the protection of
50 the public health or the environment, in which case two days' written
51 notice shall be sufficient;
52 (b) To implement the cleanup, removal, remediation, or restoration of
53 hazardous substances and/or environmental media; provided, that no such
54 work may be undertaken until after a minimum of ten days' written notice
55 thereof shall have been provided to the owner and operator and occupant
56 of such property, if identifiable by reasonable efforts, unless the
S. 1409 136 A. 2109
1 commissioner makes a written determination that such notice will not
2 allow the protection of the public health or the environment, in which
3 case two days' written notice shall be sufficient.
4 2. (a) Require that any person furnish to the department, in a form
5 and manner as prescribed by the department, information relating to the
6 current and past hazardous substance generation, treatment, storage,
7 disposal, and/or transportation activities of such person or any other
8 person now or formerly under the control of such person; in the event
9 such person cannot comply therewith, in whole or in part, such person
10 shall furnish to the department information describing all efforts made
11 by such person to comply therewith; any information so furnished to the
12 department shall be considered a "written instrument" as defined in
13 subdivision three of section 175.00 of the penal law;
14 (b) Require that any person permit a duly designated officer or
15 employee of the department at all reasonable times to have access to and
16 to copy all books, papers, documents, and records relating to the
17 current and past hazardous substance generation, treatment, storage,
18 disposal, and/or transportation activities of such person or any person
19 now or formerly under the control of such person;
20 (c) Require, by subpoena issued in the name of the department, the
21 production of books, papers, documents, and other records, and the
22 rendition of testimony by deposition under oath of any person relating
23 to the current and past hazardous substance generation, treatment, stor-
24 age, disposal, and/or transportation activities of such person or any
25 person now or formerly under the control of such person; such subpoenas
26 and depositions shall be regulated by the civil practice law and rules;
27 the commissioner may invoke the powers of the supreme court of the state
28 of New York to compel compliance therewith.
29 § 25. Section 71-2705 of the environmental conservation law, as added
30 by chapter 550 of the laws of 1980 and subdivision 1 as amended by chap-
31 ter 493 of the laws of 1985, is amended to read as follows:
32 § 71-2705. Violations of section 27-1423 and titles 9, 11 and 13 of
33 article 27 of this chapter.
34 1. Civil and administrative sanctions. Any person who violates any of
35 the provisions of, or who fails to perform any duty imposed by section
36 27-1423 and titles 9, 11 and 13 of article 27 or any rule or regulation
37 promulgated pursuant thereto, or any term or condition of any certif-
38 icate or permit issued pursuant thereto, or any final determination or
39 order of the commissioner made pursuant to this title shall be liable,
40 in the case of a first violation, for a civil penalty not to exceed
41 twenty-five thousand dollars and an additional penalty of not more than
42 twenty-five thousand dollars for each day during which such violation
43 continues, to be assessed by the commissioner after an opportunity to be
44 heard pursuant to the provisions of section 71-1709 of this [chapter]
45 article, or by the court in any action or proceeding pursuant to section
46 71-2727 of this [chapter] article, and, in addition thereto, such person
47 may by similar process be enjoined from continuing such violation, and
48 any permit or certificate issued to such person may be revoked or
49 suspended or a pending renewal application denied. In the case of a
50 second and any further violation, the liability shall be for a civil
51 penalty not to exceed fifty thousand dollars for each such violation and
52 an additional penalty not to exceed fifty thousand dollars for each day
53 during which such violation continues.
54 2. Criminal sanctions. Any person who, having any of the culpable
55 mental states defined in section 15.05 of the penal law, shall violate
56 any of the provisions of or who fails to perform any duty imposed by
S. 1409 137 A. 2109
1 section 27-1423 and titles 9, 11 and 13 of article 27 or any rules and
2 regulations promulgated pursuant thereto, or any term or condition of
3 any certificate or permit issued pursuant thereto, or any final determi-
4 nation or order of the commissioner made pursuant to this title shall be
5 guilty of a misdemeanor and, upon conviction thereof, shall for a first
6 conviction be punished by a fine not to exceed twenty-five thousand
7 dollars per day of violation or by imprisonment for a term of not more
8 than one year, or both such fine and imprisonment. If the conviction is
9 for an offense committed after a first conviction of such person under
10 this subdivision, punishment shall be by a fine not to exceed fifty
11 thousand dollars per day of violation, or by imprisonment for not more
12 than two years or by both such fine and imprisonment.
13 § 26. Paragraph b of subdivision 1 of section 71-2725 of the environ-
14 mental conservation law, as amended by chapter 60 of the laws of 1993,
15 is amended to read as follows:
16 b. All penalties and fines collected pursuant to sections 71-2705,
17 71-2721 and 71-2723 of this title shall be paid [into the general fund
18 to the credit of the state purposes account] to the credit of the reme-
19 dial program transfer fund established by section ninety-seven-cccc of
20 the state finance law.
21 § 27. Subdivision 1 of section 71-2727 of the environmental conserva-
22 tion law, as amended by chapter 671 of the laws of 1986, is amended to
23 read as follows:
24 1. The commissioner, after investigation, notice, and an opportunity
25 to be heard, may issue, modify, and revoke orders prohibiting violations
26 of any of the provisions of article [27 or 71] twenty-seven or seventy-
27 one of this chapter or of any rule or regulation promulgated pursuant
28 thereto and requiring the taking of such remedial measures as may be
29 necessary or appropriate. Nothing herein contained shall be deemed to
30 preclude the disposition of any matter within the department's jurisdic-
31 tion under article twenty-seven of this chapter by stipulation, agreed
32 settlement, consent order, default, or other informal method, upon such
33 terms and subject to such conditions and limitations as the commissioner
34 may deem just.
35 § 28. Article 71 of the environmental conservation law is amended by
36 adding a new title 36 to read as follows:
37 TITLE 36
38 PROTECTION OF NATURAL RESOURCES
39 Section 71-3601. Declaration of policy and statement of purpose.
40 71-3603. Definition.
41 71-3605. Environmental easements; certain common law rules not
42 applicable.
43 71-3607. Procedures for modifying or extinguishing environmental
44 easement.
45 71-3609. Scope of this title.
46 71-3611. Severability.
47 § 71-3601. Declaration of policy and statement of purpose.
48 The legislature hereby finds and declares that in order to implement
49 the state policy of conserving, improving, and protecting natural
50 resources and the environment and controlling water, land, and air
51 pollution, the imposition of institutional controls on affected real
52 property is fundamental to the enhancement of the health, safety, and
53 welfare of the people of the state and their overall economic and social
54 well being.
55 § 71-3603. Definition.
S. 1409 138 A. 2109
1 When used in this title, "environmental easement" means an easement,
2 covenant, restriction, or other interest in real property, created under
3 and subject to the provisions of this title, which limits or restricts
4 development, management, or use of such real property for the purpose of
5 protecting the public health or safety or natural resources or the envi-
6 ronment from pollution affecting the real property in a manner consist-
7 ent with the public policy and purpose set forth in section 71-3601 of
8 this title; provided that no such easement shall be acquired or held by
9 the state which is subject to the provisions of article fourteen of the
10 constitution.
11 § 71-3605. Environmental easements; certain common law rules not appli-
12 cable.
13 1. An environmental easement may be created or conveyed only by an
14 instrument which complies with the requirements of section 5-703 of the
15 general obligations law and which is subscribed by the grantee. It shall
16 be of perpetual duration, unless otherwise provided in such instrument.
17 2. An environmental easement shall be modified or extinguished only
18 pursuant to the provisions of section 71-3607 of this title. Any such
19 modification or extinguishment shall be set forth in an instrument which
20 complies with the requirements of section 5-703 of the general obli-
21 gations law or in an instrument filed in a manner prescribed for record-
22 ing a conveyance of real property pursuant to section two hundred nine-
23 ty-one of the real property law.
24 3. (a) An environmental easement shall be held only by the state,
25 except that the state shall not be authorized or empowered to acquire or
26 hold any environmental easement which is subject to the provisions of
27 article fourteen of the constitution.
28 (b) Any environmental easement created pursuant to this title shall
29 not limit, restrict, or modify the right to construct, operate, or
30 continue the use of any facility, or impede any activity, duly author-
31 ized under the applicable provisions of the federal natural gas act (15
32 U.S.C. §§ 717-717w).
33 4. An environmental easement shall be duly recorded and indexed as
34 such in the office of the recording officer for the county or counties
35 where the land is situate in the manner prescribed by article nine of
36 the real property law. The easement shall describe the property encum-
37 bered by the easement by adequate legal description or by reference to a
38 recorded map showing its boundaries and bearing the seal and signature
39 of a licensed land surveyor, or if the easement encumbers the entire
40 property described in a deed of record, the easement may incorporate by
41 reference the description in such deed, otherwise it shall refer to the
42 liber and page of the deed or deeds of the record owner or owners of the
43 real property burdened by the environmental easement. An instrument for
44 the purpose of creating, conveying, modifying, or terminating an envi-
45 ronmental easement shall not be effective unless recorded. The depart-
46 ment shall maintain a file of environmental easements.
47 5. An environmental easement may be enforced in law or equity by its
48 grantor or by the state, and is enforceable against the owner of the
49 burdened property. Enforcement shall not be defeated because of any
50 subsequent adverse possession, laches, estoppel, or waiver. No general
51 law of the state which operates to defeat the enforcement of any inter-
52 est in real property shall operate to defeat the enforcement of any
53 environmental easement unless such general law expressly states the
54 intent to defeat the enforcement of such easement or provides for the
55 exercise of the power of eminent domain. It is not a defense in any
56 action to enforce an environmental easement that:
S. 1409 139 A. 2109
1 (a) It is not appurtenant to an interest in real property;
2 (b) It is not of a character that has been recognized traditionally at
3 common law;
4 (c) It imposes a negative burden;
5 (d) It imposes affirmative obligations upon the owner of any interest
6 in the burdened property;
7 (e) The benefit does not touch or concern real property; or
8 (f) There is no privity of estate or of contract.
9 6. Agents, employees, or other representatives of the state may enter
10 and inspect the property burdened by an environmental easement in a
11 reasonable manner and at reasonable times to assure compliance with the
12 restriction.
13 7. The department may promulgate regulations establishing standards
14 for environmental easements.
15 8. Written notice shall be provided to the director of the budget and
16 notice published in the state register and the environmental notice
17 bulletin at least thirty days prior to the acquisition, or entry into a
18 contract for the acquisition, on behalf of the state of any environ-
19 mental easement.
20 § 71-3607. Procedures for modifying or extinguishing environmental ease-
21 ment.
22 1. An environmental easement held by the state may only be modified or
23 extinguished:
24 (a) as provided in the instrument creating the easement; or
25 (b) in a proceeding pursuant to section nineteen hundred fifty-one of
26 the real property actions and proceedings law; or
27 (c) upon the exercise of the power of eminent domain; or
28 (d) where land subject to an environmental easement or an interest in
29 such land is required for a major utility transmission facility which
30 has received a certificate of environmental compatibility and public
31 need pursuant to article seven of the public service law or is required
32 for a major steam electric generating facility which has received a
33 certificate of environmental compatibility and public need pursuant to
34 article eight of the public service law or is required for a major elec-
35 tric generating facility which has received a certificate of environ-
36 mental compatibility and public need pursuant to any applicable
37 provision of law, upon the filing of such certificate in a manner
38 prescribed for recording a conveyance of real property pursuant to
39 section two hundred ninety-one of the real property law or any other
40 applicable provision of law; provided that the commissioner shall have
41 made and filed in the main office of the department a certificate that
42 the exercise of such easement is no longer necessary to the accomplish-
43 ment of its purpose and consenting to the modification or extinguishment
44 thereof.
45 2. Where an environmental easement is modified or extinguished pursu-
46 ant to paragraph (d) of subdivision one of this section, such easement
47 shall be modified or extinguished only to the minimum extent necessary
48 to accommodate the facility which is the subject of the certificate of
49 environmental compatibility and public need.
50 3. Nothing in this section shall be construed to preclude the extin-
51 guishment or modification of an environmental easement pursuant to the
52 applicable provisions of the federal natural gas act (15 U.S.C. §§ 717-
53 717w).
54 § 71-3609. Scope of this title.
55 This title shall not affect any interests or rights in real property
56 which are not environmental easements and shall not affect the rights of
S. 1409 140 A. 2109
1 owners to convey any interests in real property which they could now
2 create under existing law without reference to the terms of this title.
3 Nothing in this title shall diminish the powers granted by any other law
4 to acquire interests or rights in real property by purchase, gift,
5 eminent domain, or otherwise and to use the same for public purposes.
6 Nothing in this title shall be construed to alter the authority other-
7 wise available to the state to acquire environmental easements for the
8 purposes of section 71-3601 of this title by eminent domain.
9 § 71-3611. Severability.
10 The provisions of this title shall be severable, and if any clause,
11 sentence, paragraph, subdivision, or part of this title shall be
12 adjudged by any court of competent jurisdiction to be invalid, such
13 judgment shall not affect, impair, or invalidate the remainder thereof,
14 but shall be confined in its operation to the clause, sentence, para-
15 graph, subdivision, or part thereof directly involved in the controversy
16 in which such judgment shall have been rendered; provided that if an
17 environmental easement created pursuant to this title is determined by
18 any court of competent jurisdiction to be land or water or an interest
19 in land or water subject to the provisions of article fourteen of the
20 constitution, then the authority of the state to hold or acquire such
21 easement and the conveyance to the state of such easement shall be void
22 ab initio.
23 § 29. Paragraph b of subdivision 1, subdivision 9 and paragraph a of
24 subdivision 11 of section 72-0201 of the environmental conservation law,
25 paragraph b of subdivision 1 and subdivision 9 as added by chapter 38 of
26 the laws of 1985 and paragraph a of subdivision 11 as amended by section
27 24 of part A of chapter 58 of the laws of 1998, are amended and subdivi-
28 sion 1 is amended by adding a new paragraph e to read as follows:
29 b. Notwithstanding any general or special law to the contrary, one-
30 half of all monies collected by the department pursuant to section
31 72-0402 and section 72-0502 of this article shall be deposited in the
32 [hazardous waste] remedial program transfer fund, created pursuant to
33 section [ninety-seven-b] ninety-seven-cccc of the state finance law.
34 e. Notwithstanding any general or special law to the contrary, all
35 monies collected by the department pursuant to section 72-0403 of this
36 article shall be deposited in the remedial program transfer fund estab-
37 lished pursuant to section ninety-seven-cccc of the state finance law.
38 9. a. In the event a penalty or interest is collected pursuant to
39 subdivision five or six of this section for fees due under section
40 72-0402, or section 72-0502 of this article, one-half of the penalty or
41 interest shall be deposited by the department in the [hazardous waste]
42 remedial program transfer fund.
43 b. In the event a penalty or interest is collected pursuant to subdi-
44 vision five or six of this section for fees due under section 72-0403 of
45 this article, such penalty or interest shall be deposited in the remedi-
46 al program transfer fund.
47 a. All fees collected pursuant to this article [except fees collected
48 pursuant to paragraphs b, c and d of subdivision one of this section]
49 shall be paid into the environmental conservation special revenue fund
50 to the credit of the environmental regulatory account, unless in this
51 article provided otherwise.
52 § 30. Section 72-0202 of the environmental conservation law is amended
53 by adding a new subdivision 4 to read as follows:
54 4. Bills issued for the hazardous waste generator remedial program
55 surcharge due for the state fiscal year beginning April first, two thou-
56 sand three shall cover the period April first, two thousand three
S. 1409 141 A. 2109
1 through December thirty-first, two thousand three. The surcharge for the
2 period April first, two thousand three through December thirty-first,
3 two thousand three shall be equal to three-quarters of the amount calcu-
4 lated in the manner prescribed by section 72-0403 of this article.
5 Hazardous waste generator remedial program surcharges for periods begin-
6 ning after December thirty-first, two thousand three shall be calculated
7 based upon the calendar year.
8 § 31. The environmental conservation law is amended by adding a new
9 section 72-0403 to read as follows:
10 § 72-0403. Remedial program surcharges.
11 1. All generators shall submit annually to the department a fee in the
12 amount to be determined as follows:
13 a. Four thousand dollars for generators of equal to or greater than
14 fifteen tons per year and less than or equal to twenty-five tons per
15 year of hazardous waste;
16 b. Nine thousand dollars for generators of greater than twenty-five
17 tons per year and less than or equal to fifty tons per year of hazardous
18 waste;
19 c. Fourteen thousand dollars for generators of greater than fifty tons
20 per year and less than or equal to seventy-five tons per year of hazard-
21 ous waste;
22 d. Nineteen thousand dollars for generators of greater than seventy-
23 five tons per year and less than or equal to one hundred tons per year
24 of hazardous waste;
25 e. Twenty-four thousand dollars for generators of greater than one
26 hundred tons per year and less than or equal to five hundred tons per
27 year of hazardous waste;
28 f. Eighty thousand dollars for generators of greater than five hundred
29 tons per year and less than or equal to one thousand tons per year of
30 hazardous waste;
31 g. Eighty-five thousand dollars for generators of greater than one
32 thousand tons per year and less than or equal to two thousand tons per
33 year of hazardous waste;
34 h. One hundred ten thousand dollars for generators of greater than two
35 thousand tons per year and less than or equal to three thousand tons per
36 year of hazardous waste;
37 i. One hundred thirty-five thousand dollars for generators of greater
38 than three thousand tons per year and less than or equal to five thou-
39 sand tons per year of hazardous waste;
40 j. One hundred sixty thousand dollars for generators of greater than
41 five thousand tons per year and less than or equal to ten thousand tons
42 per year of hazardous waste;
43 k. Three hundred sixty thousand dollars for generators of greater than
44 ten thousand tons per year of hazardous waste; or
45 l. Six thousand dollars for generators of equal to or greater than
46 fifteen tons per year of hazardous wastewater, payable in addition to
47 the fees for hazardous wastes, other than wastewater, as required by
48 this subdivision.
49 2. No fee shall be payable for waste resulting from services which are
50 provided:
51 a. under a contract with the department, or with the department's
52 approval and in compliance with departmental regulations, or pursuant to
53 an order of the department, the United States environmental protection
54 agency, or a court related to the cleanup or remediation of a hazardous
55 materials or hazardous waste spill, discharge, or surficial cleanup,
56 pursuant to this chapter, other than section 27-1313 of this chapter or
S. 1409 142 A. 2109
1 a removal action pursuant to the Comprehensive Environmental Response,
2 Compensation and Liability Act (42 U.S.C. 9601 et seq.); or
3 b. under a contract for, or with the department's approval and in
4 compliance with departmental regulations for, the cleanup and removal of
5 a petroleum spill or discharge, pursuant to subdivision seven of section
6 one hundred seventy-six of the navigation law; or
7 c. under the order of a court, the department, or the department of
8 health, or the United States environmental protection agency related to
9 an inactive hazardous waste disposal site pursuant to section 27-1313 of
10 this chapter, section thirteen hundred eighty-nine-b of the public
11 health law, or the Comprehensive Environmental Response, Compensation
12 and Liability Act (42 U.S.C. 9601 et seq.); or
13 d. voluntarily and without expectation of monetary compensation in
14 accordance with subdivision one of section 27-1321 of this chapter; or
15 e. under permit or order requiring corrective action pursuant to title
16 nine of article twenty-seven of this chapter or the Resource Conserva-
17 tion and Recovery Act (42 U.S.C. 6901 et seq.).
18 3. In any case where a generator recycles more than ninety percent of
19 the amount of hazardous waste or hazardous wastewater it produces in any
20 year, or if it produces both hazardous waste and hazardous wastewater,
21 in any case where in any year it recycles more than ninety percent of
22 the amount of hazardous waste or hazardous wastewater upon which a reme-
23 dial program surcharge fee is to be imposed, as certified to the commis-
24 sioner, any such remedial program surcharge fee imposed or to be imposed
25 in such case shall be determined based upon the net amount of hazardous
26 waste or hazardous wastewater generated which is not so recycled in such
27 year, rather than upon the gross amount of hazardous waste or hazardous
28 wastewater, or both, generated in such year.
29 § 32. The general municipal law is amended by adding a new section
30 970-r to read as follows:
31 § 970-r. State assistance: brownfield redevelopment area planning. 1.
32 Definitions. a. "Brownfield redevelopment area" is an area where: a
33 number of abandoned, idled or under-utilized properties are clustered in
34 a geographic location; contamination by hazardous waste as defined in
35 section 27-1301 of the environmental conservation law or petroleum as
36 defined in section one hundred seventy-two of the navigation law is
37 suspected of being widespread; and the remediation of any one site
38 would not address all suspected sources of contamination and enable
39 beneficial environmental and economic use.
40 b. A "brownfield redevelopment area plan" is a plan undertaken by a
41 municipality or not-for-profit corporation to develop a strategy to
42 return a brownfield redevelopment area to productive economic use while
43 protecting human health and the environment; provided, that nothing in
44 this section shall be deemed to establish a relationship of principal
45 and agent between the municipality and the not-for-profit corporation.
46 2. The secretary of state is authorized to provide technical assist-
47 ance to municipalities and not-for-profit corporations acting in cooper-
48 ation with municipalities, to enhance their capabilities to plan the
49 redevelopment of brownfield redevelopment areas.
50 3. Within the limits of appropriations therefor, the secretary of
51 state is authorized to provide, on a competitive basis, financial
52 assistance to municipalities and not-for-profit corporations acting in
53 cooperation with municipalities, to advance plans for the redevelopment
54 of brownfield redevelopment areas, as follows:
55 a. in the preparation of a pre-planning study to develop information
56 necessary for designating a brownfield redevelopment area. Pre-planning
S. 1409 143 A. 2109
1 activities include, but are not limited to, basic information about the
2 boundaries of the area, the number and size of brownfield sites, the
3 current and anticipated uses of the properties and groundwater in the
4 area, known data about the environmental conditions of the properties,
5 ownership of the sites in the area and other information deemed relevant
6 by the secretary of state. Such study, when completed, shall be submit-
7 ted to the secretary of state and filed with the municipal clerk. After
8 the filing of the completed study in the office of the municipal clerk,
9 the municipal legislative body may adopt a resolution and shall enter
10 the same in the minutes of its proceedings. The resolution shall contain
11 a copy of the completed study, a statement of the fact that the
12 completed study is on file in the office of the municipal clerk for
13 public inspection, and a statement of the time when and the place where
14 the legislative body will meet and hold a public meeting to hear all
15 persons interested in the subject thereof; and the resolution may
16 further state the place, other than the office of the municipal clerk,
17 where the completed study may be inspected in advance of the meeting, if
18 the legislative body determines that, in the public interest, any addi-
19 tional place of inspection is necessary or desirable. The municipal
20 legislative body shall cause a copy of the resolution or a summary ther-
21 eof to be published at least once in the official paper or a newspaper
22 in general circulation in the municipality, the first publication to be
23 not less than ten nor more than thirty days before the day set for the
24 meeting required by this paragraph. If the municipal legislative body
25 publishes a summary of the resolution, such summary shall include the
26 business address of the municipal clerk, a statement that copies of the
27 resolution shall be made available free of charge to the public, and the
28 cost to the municipality of activities proposed to be undertaken. The
29 municipality, or not-for-profit corporation with the approval of the
30 municipality, after the conclusion of the public meeting required by
31 this paragraph, may then file a petition requesting designation of the
32 area as a brownfield redevelopment area for the approval of the secre-
33 tary of state;
34 b. in the preparation of a brownfield redevelopment area plan. Plan-
35 ning activities eligible to receive funding include, but are not limited
36 to, a strategy which defines the end-uses of the brownfield redevelop-
37 ment area once the properties have been remediated and revitalized,
38 including any infrastructure needs, and identifies actions required to
39 reach such proposed end-uses, and other information deemed relevant by
40 the secretary of state. Such plan must be formulated in consultation
41 with community based organizations and affected landowners. The munici-
42 pality or not-for-profit corporation with the approval of the munici-
43 pality shall submit such plan for the approval of the secretary of
44 state;
45 c. in the preparation of site assessments of properties owned by a
46 municipality or a party not responsible for the remediation of hazardous
47 waste or petroleum according to applicable principles of statutory or
48 common law liability, or a responsible party according to applicable
49 principles of statutory or common law liability if such person's liabil-
50 ity arises solely from ownership or operation of the site subsequent to
51 the disposal of hazardous waste or the discharge of petroleum in the
52 brownfield redevelopment area. Assessment activities include, but are
53 not limited to, testing of properties to determine the nature and extent
54 of the contamination (including soil and groundwater), environmental
55 assessments, the development of a proposed remediation strategy to
56 address any identified contamination and any other activities deemed
S. 1409 144 A. 2109
1 appropriate by the secretary in consultation with the commissioner of
2 environmental conservation. Any environmental assessment shall be
3 subject to the review and approval of the commissioner of environmental
4 conservation. State assistance payments shall not exceed seventy-five
5 percent of the cost of such plans. The secretary of state, in consulta-
6 tion with the commissioner of environmental conservation, may enter into
7 a contract with a municipality or not-for-profit corporation, including
8 such terms and conditions as the secretary of state and commissioner of
9 environmental conservation may deem appropriate, to provide the state
10 assistance.
11 4. When determining the eligibility of a municipality or not-for-pro-
12 fit corporation for such assistance, the secretary of state, in consul-
13 tation with the commissioner of environmental conservation and other
14 appropriate agencies, shall consider, among other matters, the follow-
15 ing: benefit to human health, benefit to the environment, the economic
16 benefit to the state (including new employment opportunities and new
17 public recreational resources), and the strength of local support.
18 Funding preferences shall be given to proposals for areas: with a demon-
19 strated need for restoration; that would yield economic benefit to the
20 state and create new jobs or a new public resource; that receive a
21 strong level of local support; and where a majority of the properties
22 are owned by a municipality or party not responsible for the remediation
23 of hazardous waste or petroleum according to applicable principles of
24 statutory or common law liability or a responsible party according to
25 applicable principles of statutory or common law liability if such
26 person's liability arises solely from ownership or operation of the site
27 subsequent to the disposal of hazardous waste or the discharge of petro-
28 leum.
29 5. The secretary of state shall provide from available monies techni-
30 cal support to municipalities and not-for-profit corporations to prepare
31 their brownfield redevelopment areas program. Such support includes but
32 is not limited to personal and non-personal services.
33 § 33. The navigation law is amended by adding a new section 172-a to
34 read as follows:
35 § 172-a. Liability exclusions. 1. Notwithstanding subdivision thir-
36 teen of section one hundred seventy-two of this article the term "owner
37 or operator" does not include a person that is a lender that, without
38 participating in the management of property, holds indicia of ownership
39 primarily to protect the security interest of the person in that proper-
40 ty; nor does it include a person that is a lender that did not partic-
41 ipate in management of property prior to foreclosure, notwithstanding
42 that the person forecloses on such property and after foreclosure sells,
43 re-leases (in the case of a lease finance transaction), or liquidates
44 the property, maintains business activities, winds up operations, under-
45 takes in a non-negligent manner remedial actions under the direction of
46 the department, with respect to such property, or takes any other meas-
47 ure to preserve, protect, or prepare such property prior to sale or
48 disposition, if the person seeks to sell, re-lease (in the case of a
49 lease finance transaction), or otherwise divest the person of the prop-
50 erty at the earliest practicable commercially reasonable time, on
51 commercially reasonable terms, taking into account market conditions and
52 legal and regulatory requirements; provided, however, that such lender
53 shall not make a claim against the fund arising out of a discharge asso-
54 ciated with such property. For purposes of this subdivision:
55 (a) the term "participate in management" means actually participating
56 in the management or operational affairs of a property; and does not
S. 1409 145 A. 2109
1 include merely having the capacity to influence, or the unexercised
2 right to control, property operations;
3 (b) a person that is a lender and that holds indicia of ownership
4 primarily to protect a security interest in a property shall be consid-
5 ered to participate in management only if, while the borrower is still
6 in possession of the property encumbered by the security interest, the
7 person exercises decisionmaking control over the environmental compli-
8 ance related to the property, such that the person has undertaken
9 responsibility for the hazardous waste handling or disposal practices
10 related to the property; or exercises control at a level comparable to
11 that of a manager of the property, such that the person has assumed or
12 manifested responsibility for the overall management of the property
13 encompassing day-to-day decisionmaking with respect to environmental
14 compliance; or over all or substantially all of the operational func-
15 tions (as distinguished from financial or administrative functions) of
16 the property other than the function of environmental compliance;
17 (c) the term "participate in management" does not include performing
18 an act or failing to act prior to the time at which a security interest
19 is created in a property; and
20 (d) the term "participate in management" does not include holding a
21 security interest or abandoning or releasing a security interest;
22 including in the terms of an extension of credit, or in a contract or
23 security agreement relating to the extension, a covenant, warranty, or
24 other term or condition that relates to environmental compliance; moni-
25 toring or enforcing the terms and conditions of the extension of credit
26 or security interest; monitoring or undertaking one or more inspections
27 of the property; requiring a response action or other lawful means of
28 addressing the release or threatened release of a hazardous waste in
29 connection with the property prior to, during, or on the expiration of
30 the term of the extension of credit; providing financial or other advice
31 or counseling in an effort to mitigate, prevent, or cure default, or
32 diminution in the value of the property; restructuring, renegotiating,
33 or otherwise agreeing to alter the terms and conditions of the extension
34 of credit or security interest, exercising forbearance; exercising other
35 remedies that may be available under applicable law for the breach of a
36 term or condition of the extension of credit or security agreement; or
37 conducting in a non-negligent manner a remedial action directly or under
38 the direction of the department of environmental conservation, if the
39 actions do not rise to the level of participating in management (within
40 the meaning of this subdivision);
41 (e) the term "extension of credit" includes a lease finance trans-
42 action in which the lessor does not initially select the leased property
43 and does not during the lease term control the daily operations or main-
44 tenance of the property; or that conforms with regulations issued by the
45 appropriate federal banking agency (as defined in 12 USC section 1813)
46 or the superintendent of banks or with regulations issued by the
47 National Credit Union Administrative Board, as appropriate;
48 (f) the term "financial or administrative function" includes a func-
49 tion such as that of a credit manager, accounts payable officer,
50 accounts receivable officer, personnel manager, comptroller, or chief
51 financial officer, or a similar function;
52 (g) the terms "foreclosure" and "foreclose" mean, respectively,
53 acquiring and to acquire, a property through purchase at sale under a
54 judgment or decree, power of sale, or nonjudicial foreclosure sale; a
55 deed in lieu of foreclosure, or similar conveyance from a trustee; or
56 repossession, if the property was security for an extension of credit
S. 1409 146 A. 2109
1 previously contracted; conveyance pursuant to an extension of credit
2 previously contracted, including the termination of a lease agreement;
3 or any other formal or informal manner by which the person acquires, for
4 subsequent disposition, title to or possession of a property in order to
5 protect the security interest of the person;
6 (h) the term "lender" means an insured depository institution (as
7 defined in 12 USC section 1813); an insured credit union (as defined in
8 12 USC section 1752); a bank or association chartered under the Farm
9 Credit Act of 1971 (12 U.S.C. 2001 et seq.); a leasing or trust company
10 that is an affiliate of an insured depository institution; any person
11 (including a successor or assignee of any such person) that makes a bona
12 fide extension of credit to or takes or acquires a security interest
13 from a nonaffiliated person; the Federal National Mortgage Association,
14 the Federal Home Loan Mortgage Corporation, the Federal Agricultural
15 Mortgage Corporation, or any other entity that in a bona fide manner
16 buys or sells loans or interests in loans; a person that insures or
17 guarantees against a default in the repayment of an extension of credit,
18 or acts as a surety with respect to an extension of credit, to a nonaf-
19 filiated person; and a person that provides title insurance and that
20 acquires a property as a result of assignment or conveyance in the
21 course of underwriting claims and claims settlement;
22 (i) the term "operational function" includes a function such as that
23 of a facility or plant manager, operations manager, chief operating
24 officer, or chief executive officer; and
25 (j) the term "security interest" includes a right under a mortgage,
26 deed of trust, assignment, judgment lien, pledge, security agreement,
27 factoring agreement, or lease and any other right accruing to a person
28 to secure the repayment of money, the performance of a duty, or any
29 other obligation by a nonaffiliated person.
30 2. Notwithstanding subdivision thirteen of section one hundred seven-
31 ty-two of this article the term, "owner or operator" does not include
32 the state or a public corporation which acquired, and thereafter
33 retained without participating in the management of such property,
34 ownership or control involuntarily or voluntarily by virtue of its func-
35 tion as sovereign; provided, however, that such public corporation shall
36 not make a claim against the fund arising out of a discharge associated
37 with such property. Neither the state nor any public corporation shall
38 incur under this chapter any liability as to matters within the juris-
39 diction of the department as a result of actions taken in response to an
40 emergency created by the discharge or threatened discharge of petroleum
41 by another person; provided that such actions by the state or public
42 corporation did not constitute reckless, willful, wanton or intentional
43 misconduct. As used in this subdivision:
44 (a) "public corporation" means a public corporation as defined in the
45 general construction law;
46 (b) "involuntary acquisition of ownership or control" includes, but is
47 not limited to, the following:
48 (i) acquisitions by the state or a public corporation, or its agent,
49 acting as a conservator or receiver pursuant to a clear and direct stat-
50 utory mandate or regulatory authority;
51 (ii) acquisitions of assets through foreclosure and its equivalents as
52 defined in paragraph (g) of subdivision one of this section, or other-
53 wise, by the state or a public corporation in the course of administer-
54 ing a loan, loan guarantee, or loan insurance program;
55 (iii) acquisitions by the state or a public corporation pursuant to
56 seizure or forfeiture authority;
S. 1409 147 A. 2109
1 (iv) acquisitions by the state or a public corporation as the result
2 of tax delinquency purposes; provided, that such ownership or control is
3 not retained primarily for investment purposes.
4 (c) "management participation" means that the state or a public corpo-
5 ration is actually participating in the management or operation of the
6 property but does not include the mere capacity to influence, ability to
7 influence, or unexercised right to control the operation of the proper-
8 ty. Nothing contained in this subdivision affects the applicability of
9 this section in favor of a holder of a security interest according to
10 the terms thereof.
11 3. Notwithstanding subdivision thirteen of section one hundred seven-
12 ty-two of this article the term, "owner or operator" includes a fiduci-
13 ary; provided, however, that such liability on the part of a fiduciary
14 shall not exceed the assets held in the fiduciary capacity if such
15 person is not liable independently of such person's ownership as a fidu-
16 ciary or actions taken in a fiduciary capacity; provided, however, that
17 such fiduciary shall not make a claim against the fund arising out of a
18 discharge associated with such property.
19 (a) For purposes of this subdivision, (i) the term "fiduciary" means a
20 person acting for the benefit of another party as a bona fide trustee;
21 executor; administrator; custodian; guardian of estates or guardian ad
22 litem; receiver; conservator; committee of estates of incapacitated
23 persons; personal representative; trustee (including a successor to a
24 trustee) under an indenture agreement, trust agreement, lease, or simi-
25 lar financing agreement, for debt securities, certificates of interest
26 or certificates of participation in debt securities, or other forms of
27 indebtedness as to which the trustee is not, in the capacity of trustee,
28 the lender; or representative in any other capacity that the department,
29 after providing public notice, determines to be similar to the various
30 capacities previously described in this paragraph; and does not include
31 either a person that is acting as a fiduciary with respect to a trust or
32 other fiduciary estate that was organized for the primary purpose of, or
33 is engaged in, actively carrying on a trade or business for profit, or
34 to facilitate one or more estate plans, or because of the incapacity of
35 a natural person or a person that acquires ownership or control of a
36 property with the objective purpose of avoiding liability of the person
37 or any other person;
38 (ii) the term "fiduciary capacity" means the capacity of a person in
39 holding title to a property, or otherwise having control of or an inter-
40 est in a property, pursuant to the exercise of the responsibilities of
41 the person as a fiduciary.
42 (b) Nothing in this subdivision affects the rights or immunities or
43 other defenses that are available under law that are applicable to a
44 person subject to this subdivision or creates any liability for a person
45 or a private right of action against a fiduciary or any other person.
46 (c) Nothing in this subdivision applies to a person if that person
47 acts in a capacity other than that of a fiduciary or in a fiduciary
48 capacity and, in that capacity, directly or indirectly benefits from a
49 trust or fiduciary relationship; or is a beneficiary and fiduciary with
50 respect to the same fiduciary estate and as a fiduciary, receives bene-
51 fits that exceed customary or reasonable compensation, and incidental
52 benefits, permitted under other applicable law.
53 (d) This subdivision does not preclude a claim under this chapter
54 against the assets of the estate or trust administered by the fiduciary;
55 or a nonemployee agent or independent contractor retained by a fiduci-
56 ary.
S. 1409 148 A. 2109
1 4. Notwithstanding subdivision thirteen of section one hundred seven-
2 ty-two of this article the term, "owner or operator" includes an indus-
3 trial development agency created under the general municipal law, other
4 than one that holds bare legal title to such property; has not partic-
5 ipated with any party responsible under law for the remediation of
6 contamination in, on, or from such property to attempt to have such a
7 party avoid its remedial liability; has not exercised any contractual
8 rights it may have or had, if any, under the lease, guarantee, or any
9 other financing agreement pursuant to which the industrial development
10 agency would assume control over the actual operation of the property;
11 has not taken possession or control of the property; and does not make a
12 claim against the fund arising out of a discharge associated with such
13 property. Nothing in this subdivision affects the rights or immunities
14 or other defenses that are available under law that are applicable to a
15 person subject to this subdivision or creates any liability for a person
16 or a private right of action against an industrial development agency or
17 any other person.
18 5. (a) Any other provision of law to the contrary notwithstanding, no
19 not-for-profit corporation shall incur any liability for any statutory
20 claims of the state under this article as an owner or operator if such
21 property is or will be used for community purposes and if such not-for-
22 profit corporation acquired and retains such property without partic-
23 ipating in the development of such property.
24 (b) The exemption from liability set forth in this section shall not
25 limit any other defense, indemnification or privilege under local, state
26 or federal law.
27 (c) When used in this section:
28 (i) "Community purposes" shall mean an activity that the local munici-
29 pal corporation has certified as being undertaken by the not-for-profit
30 corporation acting on behalf of such municipal corporation, or as being
31 in the public interest, including without limitation, creation of new
32 permanent jobs, construction or renovation of affordable housing,
33 historic preservation activities, provision of new or revitalized open
34 space, or establishment of other community facilities such as medical
35 facilities or community centers; provided, that nothing in this section
36 shall be deemed to establish a relationship of principal and agent
37 between the municipality and the not-for-profit corporation. Such
38 certification may be withdrawn at any time if the municipality deter-
39 mines that the certification was made as a result of a misrepresentation
40 of a material fact by the not-for-profit corporation;
41 (ii) "Participating in development" means carrying out, or causing or
42 permitting the carrying out, of any above-grade improvements to the
43 property; but does not include licensing, regulatory oversight, or the
44 mere capacity to regulate or influence, or the unexercised right to
45 control the operation of the property. For purposes hereof, participat-
46 ing in development does not include:
47 A. having the capacity to influence management of such property;
48 B. having the unexercised right to control such property or operations
49 thereof;
50 C. holding, abandoning or releasing a security interest or tax lien on
51 such property;
52 D. including a condition relating to environmental compliance in a
53 contract, permit, license or security agreement;
54 E. monitoring the terms and conditions of an agreement;
55 F. monitoring one or more inspections of such property;
S. 1409 149 A. 2109
1 G. participating in the marketing or determination of creditworthiness
2 or income eligibility of prospective homeowners;
3 H. participating in development and allocation of sources and uses of
4 project funding;
5 I. exercising other remedies available under applicable laws;
6 J. applying for federal or state statutory property benefits.
7 (d) The exemption under this section shall not apply if any member,
8 officer or director of the not-for-profit corporation is or was an offi-
9 cer or director of any owner or operator or other person responsible for
10 the discharge of petroleum at the property under applicable principles
11 of statutory or common law liability, or any subsequent owner of such
12 property, whether by election, designation, ex officio or in any other
13 capacity or manner.
14 (e) Notwithstanding any other subdivision of this section, a not-for-
15 profit corporation shall be subject to:
16 (i) all summary abatement powers of the commissioner set forth in
17 section 71-0301 of the environmental conservation law; and
18 (ii) liability as an owner or operator of a property or as a person
19 responsible for the discharge of petroleum at or onto such property, if
20 the not-for-profit corporation by willful or intentional misconduct or
21 negligence allows a release of petroleum onto other property.
22 (f) The exemptions from liability provided by this section shall
23 continue to be effective with respect to a not-for-profit corporation's
24 ownership of a property only if the not-for-profit corporation which
25 takes possession of such property seeks to sell, lease or otherwise
26 divest itself of such property within five years or at the earliest
27 practicable and reasonable time taking into account the market condi-
28 tions, legal and regulatory requirements, zoning and planned usage of
29 the property, and the best interest of the not-for-profit corporation
30 and the public, including the surrounding community. Sale of the proper-
31 ty shall be conclusive proof of the not-for-profit corporation's reason-
32 able efforts to divest itself of the property. If the not-for-profit
33 corporation is unable to divest itself of the property within five years
34 of the date on which the remediation of the property is completed, such
35 not-for-profit corporation shall provide a report annually to the munic-
36 ipal corporation in which such property is located to establish that its
37 efforts to divest itself of such property within the preceding twelve
38 months have been diligent. Such report shall document the actions of the
39 not-for-profit corporation to comply with this subdivision, market
40 conditions, the effects, if any, of contamination on the property's
41 marketability, and the reasonable steps taken by such not-for-profit
42 corporation to render such property marketable.
43 (g) Any not-for-profit corporation that has taken possession of a
44 property shall notify the department of any release of petroleum or
45 hazardous waste within ten days of obtaining actual knowledge of such
46 release, unless a shorter notice period is required under any other
47 provision of law, in which case the shorter notice period controls.
48 Failure to notify the department within such time period shall result in
49 the loss of the exemption set forth in this section.
50 (h) The exemptions from liability provided by this section shall not
51 be assignable to any third party.
52 6. Notwithstanding the foregoing provisions of this section, a person
53 receiving a liability exemption or liability limitation under subdivi-
54 sion one, two, three, four or five of this section shall be deemed to
55 have waived any claim pursuant to section one hundred eighty-one of this
S. 1409 150 A. 2109
1 article that such person may have against the New York environmental
2 protection and spill compensation fund.
3 § 34. Subdivision 2 of section 176 of the navigation law, as amended
4 by chapter 536 of the laws of 1987, paragraph (a) as amended by chapter
5 584 of the laws of 1992, is amended and a new subdivision 9 is added to
6 read as follows:
7 2. (a) Upon the occurrence of a discharge of petroleum, the department
8 shall respond promptly and proceed to cleanup and remove the discharge
9 in accordance with environmental priorities or may, at its discretion,
10 direct the discharger to promptly cleanup and remove the discharge. The
11 department shall be responsible for cleanup and removal or as the case
12 may be, for retaining agents and contractors who shall operate under the
13 direction of that department for such purposes. Implementation of clean-
14 up and removal procedures after each discharge shall be conducted in
15 accordance with environmental priorities and procedures established by
16 the department. Such procedures shall provide:
17 (i) the objective of a cleanup and removal that the department deter-
18 mines does not constitute an immediate response cleanup shall be the
19 protection of public health and the environment, with the minimum objec-
20 tive being to eliminate or mitigate all significant threats to public
21 health and the environment presented by such discharge through proper
22 application of scientific and engineering principles; and that the reme-
23 dy must be selected upon due consideration of the following factors:
24 (A) conformance to standards and criteria that are generally applica-
25 ble, consistently applied, and officially promulgated, that are either
26 directly applicable, or that are not directly applicable but are rele-
27 vant and appropriate, unless good cause exists why conformity should be
28 dispensed with, and with consideration being given to guidance deter-
29 mined, after the exercise of engineering judgment, to be applicable;
30 (B) overall protectiveness of public health and the environment;
31 (C) short-term effectiveness;
32 (D) long-term effectiveness;
33 (E) reduction of toxicity, mobility, and volume with treatment; a
34 remedial program that permanently and significantly reduces the toxici-
35 ty, mobility and/or volume of hazardous waste is to be preferred over a
36 remedial program that does not do so; the following is the hierarchy of
37 remedial technologies ranked from most preferable to least preferable:
38 (i) destruction, onsite or offsite; (ii) separation or treatment, onsite
39 or offsite; (iii) solidification or chemical fixation, onsite or
40 offsite; (iv) control and isolation, onsite or offsite;
41 (F) cost;
42 (G) implementability;
43 (H) community acceptance; and
44 (I) land use: the current, intended, and reasonably anticipated future
45 land uses for the property and its surroundings, to the extent ascer-
46 tainable from consideration of current use, zoning laws, zoning maps,
47 comprehensive community master plans, population growth patterns and
48 projections, accessibility to existing infrastructure, current institu-
49 tional controls, location in relation to urban and residential and
50 commercial and industrial and agricultural and recreational areas,
51 federal and state use designations, historical and/or recent development
52 patterns, cultural factors, natural resources, potential vulnerability
53 of groundwater to contamination, environmental justice, location of
54 wetlands, proximity to floodplains, proximity to critical habitats of
55 endangered or threatened species, geography and geology, and, locations
S. 1409 151 A. 2109
1 of wellhead protection areas and recharge areas and other areas identi-
2 fied in the state's comprehensive groundwater protection program.
3 (ii) the objective of a cleanup and removal that the department deter-
4 mines does constitute an immediate response cleanup shall be to effectu-
5 ate a prompt cleanup and removal of contamination to ensure restoration
6 of the environment to pre-spill conditions. For purposes of this para-
7 graph, an immediate response cleanup shall be one that comprises a
8 discrete set of activities which can be undertaken without extensive
9 investigation and evaluation, to prevent, mitigate, or remedy environ-
10 mental damage or the consequences of environmental damage attributable
11 to the discharge.
12 (iii) the remediation of soil as part of any cleanup and removal of a
13 discharge under this article shall be performed in accordance with the
14 soil cleanup levels promulgated pursuant to section 27-1316 of the envi-
15 ronmental conservation law.
16 (iv) for all cleanup and removal actions other than immediate response
17 cleanups, the department shall place a notification in the environmental
18 notice bulletin and shall notify individuals, groups, and/or organiza-
19 tions that have expressed interest in or are affected by such cleanup
20 and removal actions upon the initiation of an investigation, upon the
21 successful completion of such investigation, and upon the submission of
22 a proposed remedy. The department shall accept public comments for
23 forty-five days prior to approving such remedy.
24 (v) no cleanup and removal may be selected except upon the commission-
25 er's finding that the same will be adequately protective of the public
26 health and the environment.
27 (vi) nothing herein contained shall be deemed to require site-specific
28 remedy selection, and the commissioner shall have the power to develop a
29 list of presumptive remedial strategies that are appropriate for specif-
30 ic site types and/or contaminants based upon historical patterns of
31 remedy selection and the department's scientific and engineering evalu-
32 ation of performance data on technology implementation.
33 (b) The department shall determine cleanup levels for contaminants in
34 the soil using site specific data until the commissioner promulgates
35 rules and regulations pursuant to section 27-1315 and subdivision five
36 of section 27-1316 of the environmental conservation law and thereafter
37 shall use the soil cleanup levels set forth in such rules and regu-
38 lations, as they may be amended.
39 (c) Section eight of the court of claims act or any other provision of
40 law to the contrary notwithstanding, the state shall be immune from
41 liability and action with respect to any act or omission done in the
42 discharge of the department's responsibility pursuant to this article;
43 provided, however, that this subdivision shall not limit any liability
44 which may otherwise exist for unlawful, willful, or malicious acts or
45 omissions on the part of the state, state agencies, or their officers,
46 employees, or agents or for a discharge in violation of section one
47 hundred seventy-three of this article.
48 9. The department, by and through the commissioner, shall be author-
49 ized to exempt a person from the requirement to obtain any state or
50 local permit or other authorization for any activity needed to implement
51 a program for the cleanup and removal of petroleum pursuant to this
52 article; provided that the activity is conducted in a manner which
53 satisfies all substantive technical requirements applicable to like
54 activity conducted pursuant to a permit.
S. 1409 152 A. 2109
1 § 35. Paragraph (a) of subdivision 2 of section 179 of the navigation
2 law, as amended by chapter 83 of the laws of 1995, is amended and a new
3 subdivision 3 is added to read as follows:
4 (a) An account which shall be credited with all license fees and
5 penalties collected pursuant to paragraph (b) of subdivision one and
6 paragraph (a) of subdivision four of section one hundred seventy-four of
7 this article, penalties collected pursuant to paragraph (b) of subdivi-
8 sion four of section one hundred seventy-four-a of this article, money
9 collected pursuant to section one hundred eighty-seven of this article,
10 all penalties collected pursuant to section one hundred ninety-two of
11 this article, all moneys transferred from the remedial program transfer
12 fund pursuant to subdivision five of section ninety-seven-cccc of the
13 state finance law for deposit in the New York environmental protection
14 and spill compensation fund, and registration fees collected pursuant to
15 subdivision two of section 17-1009 of the environmental conservation
16 law.
17 3. Notwithstanding any general or special law to the contrary, all
18 monies collected pursuant to paragraph (b) of subdivision one and para-
19 graph (a) of subdivision four of section one hundred seventy-four of
20 this article, penalties collected pursuant to paragraph (c) of subdivi-
21 sion one and paragraph (b) of subdivision four of section one hundred
22 seventy-four of this article effective April first of the state fiscal
23 year succeeding the state fiscal year certified in subdivision fifteen
24 of section ninety-seven-b of the state finance law, penalties collected
25 pursuant to paragraphs (b) and (c) of subdivision four of section one
26 hundred seventy-four-a of this article, money collected pursuant to
27 section one hundred eighty-seven of this article, all penalties
28 collected pursuant to section one hundred ninety-two of this article,
29 and registration fees collected pursuant to subdivision two of section
30 17-1009 of the environmental conservation law shall be deposited in the
31 remedial program transfer fund in the fiscal year beginning April first,
32 two thousand three, and for each fiscal year thereafter.
33 § 36. Subdivision 5 of section 180 of the navigation law, as amended
34 by chapter 35 of the laws of 1985, is amended and a new subdivision 6 is
35 added to read as follows:
36 5. To disburse moneys from the fund for cleanup and removal costs
37 pursuant to a certification of claims by the commissioner[.]; and
38 6. To submit on an annual basis to the governor and legislature within
39 sixty days of the end of the state fiscal year an independent audit of
40 the New York environmental protection and spill compensation fund.
41 § 37. Subdivisions 1 and 4 of section 181 of the navigation law,
42 subdivision 1 as amended by chapter 712 of the laws of 1989 and subdivi-
43 sion 4 as amended by chapter 458 of the laws of 1978, are amended and a
44 new subdivision 7 is added to read as follows:
45 1. [Any] (a) Except as provided in paragraph (d) of this subdivision,
46 any person who has discharged petroleum shall be strictly liable, with-
47 out regard to fault, for all cleanup and removal costs and all direct
48 and indirect damages, no matter by whom sustained, as defined in this
49 section. In addition to cleanup and removal costs and damages, any such
50 person who is notified of such release, and who did not undertake relo-
51 cation of persons residing in the area of the discharge in accordance
52 with paragraph (c) of subdivision seven of section one hundred seventy-
53 six of this article, shall be liable to the fund for an amount equal to
54 two times the actual and necessary expense incurred by the fund for such
55 relocation pursuant to section one hundred seventy-seven-a of this arti-
56 cle.
S. 1409 153 A. 2109
1 (b) Two or more owners and/or persons described in paragraph (a) of
2 subdivision three of this section may claim contribution among them-
3 selves in an action brought in a court of competent jurisdiction, and
4 the amount of contribution to which any of them is entitled shall be
5 equal to the excess paid by that person over and above such person's
6 equitable share of costs.
7 (c) A person misidentified by the department as a person described in
8 paragraph (a) of this subdivision but who entered into a voluntary
9 commitment with the department may recover from the New York environ-
10 mental protection and spill compensation fund created under section one
11 hundred seventy-nine of this article the costs that such person shall
12 have incurred that are reasonable in light of the action agreed to be
13 undertaken.
14 (d) There shall be no liability under this subdivision for a person
15 otherwise liable who can establish by a preponderance of the evidence
16 that the discharge was caused solely by an act of God; an act of war; or
17 an act or omission of a third party other than an employee or agent of
18 such person, or one whose act or omission occurs in connection with a
19 contractual relationship, existing directly or indirectly, with such
20 person (except where the sole contractual arrangement arises from a
21 published tariff and acceptance for carriage by a common carrier or
22 rail), if such person establishes by a preponderance of the evidence
23 that such person is other than one that transports or supplies petroleum
24 and exercised due care with respect to the petroleum concerned, taking
25 into consideration the characteristics of such petroleum, in light of
26 all relevant facts and circumstances, and took precautions against fore-
27 seeable acts or omissions of any such third party and the consequences
28 that could foreseeably result from such acts or omissions; or any combi-
29 nation of them. For purposes of this paragraph, the term "contractual
30 relationship" includes, but is not limited to, land contracts, deeds, or
31 other instruments transferring title or possession, unless the property
32 on which the discharge concerned is located was acquired by such person
33 after the discharge on, in, or at such property, and such person estab-
34 lishes one or more of the circumstances described in subparagraph (i),
35 (ii), or (iii) of this paragraph by a preponderance of the evidence:
36 (i) At the time such person acquired the property, such person did not
37 know and had no reason to know that any petroleum was discharged on, in,
38 or at the property. To establish that such person had no reason to know,
39 such person must have undertaken, at the time of acquisition, all appro-
40 priate inquiry into the previous ownership and uses of the property
41 consistent with good commercial or customary practice in an effort to
42 minimize liability. For purposes of the preceding sentence, the commis-
43 sioner shall take into account any specialized knowledge or experience
44 on the part of such person, the relationship of the purchase price to
45 the value of the property if uncontaminated, commonly known or reason-
46 ably ascertainable information about the property, the obviousness of
47 the presence or likely presence of contamination at the property, and
48 the ability to detect such contamination by appropriate inspection; or
49 (ii) Such person is a government entity which acquired the property by
50 escheat, or through any other involuntary transfer or acquisition; or
51 (iii) Such person acquired the property by inheritance or bequest, and
52 that such person exercised due care with respect to the petroleum
53 concerned, taking into consideration the characteristics of such petro-
54 leum, in light of all relevant facts and circumstances, and took precau-
55 tions against foreseeable acts or omissions of any such third party and
S. 1409 154 A. 2109
1 the consequences that could foreseeably result from such acts or omis-
2 sions.
3 (e) Nothing in this subdivision shall diminish the liability of any
4 previous owner or operator of the property who would otherwise be liable
5 under this subdivision. Notwithstanding this paragraph, if such person
6 obtained actual knowledge of the discharge at the property when such
7 person owned the property and then subsequently transferred ownership of
8 the property to another person without disclosing such knowledge, such
9 person shall be treated as a person responsible for the discharge, and
10 no defense under this paragraph shall be available to such person. Noth-
11 ing in this paragraph shall affect the liability under this subdivision
12 of a person who, by any act or omission, caused or contributed to such
13 discharge of petroleum.
14 4. [An] Notwithstanding subdivision one of this section and subdivi-
15 sions one, two, three, and four of section one hundred seventy-two-a of
16 this article, an act or omission caused solely by war, sabotage, or
17 governmental negligence shall be the only defenses which may be raised
18 by any owner or operator of a major facility or vessel responsible for a
19 discharge in any action arising under the provisions of this article.
20 7. Notwithstanding the foregoing provisions of this section, a person
21 receiving a liability exemption or liability limitation under subdivi-
22 sion one of this section or under subdivision one, two, three, or four
23 of section one hundred seventy-two-a of this article shall be deemed to
24 have waived any claim pursuant to subdivision two of this section that
25 such person may have against the New York environmental protection and
26 spill compensation fund.
27 § 38. Section 183 of the navigation law, as added by chapter 845 of
28 the laws of 1977, is amended to read as follows:
29 § 183. Settlements. 1. The administrator shall attempt to promote and
30 arrange a settlement between the claimant and the person responsible for
31 the discharge. If the source of the discharge can be determined and
32 liability is conceded, the claimant and the alleged discharger may agree
33 to a settlement which shall be final and binding upon the parties and
34 which will waive all recourse against the fund.
35 2. After the successful implementation of an order on consent which
36 provides for the cleanup and removal of the discharge, the person
37 subject to the order shall submit to the department a written certif-
38 ication prepared by an individual licensed or otherwise authorized in
39 accordance with article one hundred forty-five of the education law to
40 practice the profession of engineering who shall have been in charge of
41 the implementation of the cleanup and removal activities undertaken
42 pursuant to such order substantiating that, at a minimum, such remedial
43 activities satisfied the remedial requirements set forth in such order.
44 3. Upon the department's receipt of such certification, the department
45 shall review the final engineering report and the data submitted pursu-
46 ant to the order, as well as any other relevant information regarding
47 the discharge. The department shall provide the person, upon its satis-
48 faction that the remedial requirements for the discharge have been
49 achieved, with a covenant not to sue, binding upon the state, for any
50 liability, including any future liability or claim for the further
51 cleanup or removal of petroleum relating to the discharge that was the
52 subject of such order, except that a person responsible for the cleanup
53 and removal of the discharge pursuant to section one hundred eighty-one
54 of this article shall not receive a release for natural resource damages
55 that may be available under federal law. Additionally, the state none-
56 theless shall reserve all of its rights concerning, and such covenant
S. 1409 155 A. 2109
1 shall not extend to, any further investigation or remedial action the
2 department deems necessary, as a result of:
3 (a) a failure to comply with the terms and conditions of the order;
4 (b) a fraudulent demonstration that the cleanup levels identified in
5 the order were reached;
6 (c) a release or threatened release at the site subsequent to the
7 effective date of the order;
8 (d) a change in the site's use subsequent to the effective date of the
9 order to a use requiring a lower level of residual contamination, unless
10 additional remedial activities are undertaken which shall meet the stan-
11 dard for protection of public health and the environment that applies to
12 remedial actions for such use under this article; or
13 (e) information received, in whole or in part, after the department's
14 execution of such order, which indicates that the cleanup and removal
15 performed, or to be performed, under such order will not be, or is not,
16 protective of public health or the environment for such use of the site.
17 4. The reservation contained in paragraph (d) of subdivision three of
18 this section shall not be reserved in the event a person remediates soil
19 contamination to soil category 1, as that term is described in paragraph
20 a of subdivision three of section 27-1316 of the environmental conserva-
21 tion law.
22 5. The covenant not to sue issued pursuant to this section shall
23 extend to the person's successors or assigns through acquisition of
24 title to the site to which the liability release applies and to a person
25 who develops or otherwise occupies the site; provided that such persons
26 act in good faith to adhere to the requirements of such order and work-
27 plan. However, such covenant does not extend, and cannot be transferred,
28 to a person who is responsible as of the date of the issuance of an
29 order on consent for the discharge of petroleum according to section one
30 hundred eighty-one of this article, unless that person was party to the
31 order on which such covenant was based. A notice of the order containing
32 such covenant shall be recorded and indexed as a declaration of covenant
33 in the office of the recording officer for the county or counties where
34 such site is located in the manner prescribed by article nine of the
35 real property law within thirty days of signing the order if the person
36 is an owner or within thirty days of acquiring title to the site if the
37 person is a prospective purchaser.
38 6. The provisions of this title shall not affect an action or a claim,
39 including a claim for contribution, that a person who implements or
40 completes an order executed by such person and the department providing
41 for the cleanup and removal of the discharge pursuant to this article
42 has or may have against a third party.
43 7. Nothing in this section shall be construed to affect either the
44 liability of any person with respect to any costs, damages, or investi-
45 gative or remedial activities that are not included in the order; or the
46 department's authority to maintain an action or proceeding against any
47 person who is not subject to the order.
48 8. A person who has settled such person's liability to the department
49 under this section shall not be liable for claims for contribution
50 regarding matters addressed in the order. Such settlement does not
51 discharge any of the persons responsible under law for the cleanup and
52 removal of the discharge unless its terms so provide, but it reduces the
53 potential liability of the others by the amount of the settlement.
54 9. Nothing in this section shall be construed to affect the authority
55 of the department to reach settlement with other persons consistent with
56 its authority under applicable law.
S. 1409 156 A. 2109
1 § 39. Subdivisions 24, 25 and 26 of section 1281 of the public
2 authorities law, subdivision 24 as amended by chapter 857 of the laws of
3 1982, subdivision 25 as amended by chapter 295 of the laws of 1994 and
4 subdivision 26 as added by chapter 282 of the laws of 1979, are amended
5 to read as follows:
6 24. "Hazardous waste" shall [mean a waste which appears on the list or
7 satisfies the characteristics promulgated by the commissioner of envi-
8 ronmental conservation pursuant to section 27-0903 of the environmental
9 conservation law and until, but not after, the promulgation of such
10 list, a waste or combination of wastes, which because of its quantity,
11 concentration, or physical, chemical or infectious characteristics may:
12 a. Cause, or significantly contribute to an increase in mortality or
13 an increase in serious irreversible or incapacitating reversible
14 illness; or
15 b. Pose a substantial present or potential hazard to human health or
16 the environment when improperly treated, stored, transported, disposed
17 or otherwise managed] have the same meaning as set forth in section
18 27-1301 of the environmental conservation law.
19 25. "Inactive hazardous waste disposal site" shall [mean any area or
20 structure used for the long term storage or final placement of hazardous
21 waste including, but not limited to, dumps, landfills, lagoons and arti-
22 ficial treatment ponds, as to which area or structure no permit or
23 authorization issued by the department of environmental conservation or
24 a federal agency for the disposal of hazardous waste was in effect after
25 the effective date of this title and any inactive area or structure on
26 the National Priorities List established under the authority of 42
27 U.S.C.A. Section 9605] have the same meaning as set forth in section
28 27-1301 of the environmental conservation law.
29 26. "Inactive hazardous waste disposal site remedial program" shall
30 [mean activities undertaken to eliminate, remove, abate, control or
31 monitor health and/or environmental hazards or potential hazards in
32 connection with inactive hazardous waste disposal sites or to treat or
33 dispose of wastes and waste contaminated materials from such sites
34 including, but not limited to, grading, contouring, trenching, grouting,
35 capping, excavation, transporting, incineration, chemical treatment,
36 biological treatment or the construction of leachate collection and
37 treatment facilities] have the same meaning as set forth in section
38 27-1301 of the environmental conservation law.
39 § 40. Section 1389-a of the public health law, as added by chapter 282
40 of the laws of 1979, subdivision 1 as amended by chapter 857 of the laws
41 of 1982 and subdivision 2 as amended by chapter 295 of the laws of 1994,
42 is amended to read as follows:
43 § 1389-a. Definitions. 1. "Hazardous waste" means [a waste which
44 appears on the list or satisfies the characteristics promulgated by the
45 commissioner of environmental conservation pursuant to section 27-0903
46 of the environmental conservation law and until, but not after, the
47 promulgation of such list, or a waste or combination of wastes, which
48 because of its quantity, concentration, or physical, chemical or infec-
49 tious characteristics may:
50 a. Cause, or significantly contribute to an increase in mortality or
51 an increase in serious irreversible or incapacitating reversible
52 illness; or
53 b. Pose a substantial present or potential hazard to human health or
54 the environment when improperly treated, stored, transported, disposed
55 or otherwise managed] hazardous waste as defined in section 27-1301 of
56 the environmental conservation law.
S. 1409 157 A. 2109
1 2. "Inactive hazardous waste disposal site" means [any area or struc-
2 ture used for the long term storage or final placement of hazardous
3 waste including, but not limited to, dumps, landfills, lagoons and arti-
4 ficial treatment ponds, as to which area or structure no permit or
5 authorization issued by the department of environmental conservation or
6 a federal agency for the disposal of hazardous waste was in effect after
7 the effective date of this title and any inactive area or structure on
8 the National Priorities List established under the authority of 42
9 U.S.C.A. Section 9605] an inactive hazardous waste disposal site as that
10 term is defined in section 27-1301 of the environmental conservation
11 law.
12 3. "Inactive hazardous waste disposal site remedial program" means
13 [activities undertaken to eliminate, remove, abate, control or monitor
14 health and/or environmental hazards or potential hazards in connection
15 with inactive hazardous waste disposal sites or to treat or dispose of
16 wastes and waste contaminated materials from such sites including, but
17 not limited to, grading, contouring, trenching, grouting, capping, exca-
18 vation, transporting, incineration, chemical treatment, biological
19 treatment or construction of leachate collection and treatment facili-
20 ties] an inactive hazardous waste disposal site remedial program as that
21 term is defined in section 27-1301 of the environmental conservation
22 law.
23 4. "Person" means an individual, trust, firm, joint venture, joint
24 stock company, corporation, limited liability company, partnership,
25 association, state, municipality, commission, political subdivision of a
26 state, public benefit corporation, or any interstate body.
27 a. Such term includes any person owning or operating an inactive
28 hazardous waste disposal site but does not include a person that is a
29 lender that, without participating in the management of such site, holds
30 indicia of ownership primarily to protect the security interest of the
31 person in such site; nor does it include a person that is a lender that
32 did not participate in management of such site prior to foreclosure,
33 notwithstanding that the person forecloses on such site and after fore-
34 closure sells, re-leases (in the case of a lease finance transaction),
35 or liquidates such site, maintains business activities, winds up oper-
36 ations, undertakes in a non-negligent manner remedial actions under the
37 direction of the department, with respect to such site, or takes any
38 other measure to preserve, protect, or prepare such site prior to sale
39 or disposition, if the person seeks to sell, re-lease (in the case of a
40 lease finance transaction), or otherwise divest the person of such site
41 at the earliest practicable commercially reasonable time, on commercial-
42 ly reasonable terms, taking into account market conditions and legal and
43 regulatory requirements. For purposes of this paragraph:
44 (i) the term "participate in management" means actually participating
45 in the management or operational affairs of such site; and does not
46 include merely having the capacity to influence, or the unexercised
47 right to control, such site's operations;
48 (ii) a person that is a lender and that holds indicia of ownership
49 primarily to protect a security interest in such site shall be consid-
50 ered to participate in management only if, while the borrower is still
51 in possession of such site, the person exercises decisionmaking control
52 over the environmental compliance related to such site such that the
53 person has undertaken responsibility for the hazardous waste handling or
54 disposal practices related to such site; or exercises control at a level
55 comparable to that of a manager of such site such that the person has
56 assumed or manifested responsibility for the overall management of such
S. 1409 158 A. 2109
1 site encompassing day-to-day decisionmaking with respect to environ-
2 mental compliance; or over all or substantially all of the operational
3 functions (as distinguished from financial or administrative functions)
4 of such site other than the function of environmental compliance;
5 (iii) the term "participate in management" does not include performing
6 an act or failing to act prior to the time at which a security interest
7 is created in such site;
8 (iv) the term "participate in management" does not include holding a
9 security interest or abandoning or releasing a security interest;
10 including in the terms of an extension of credit, or in a contract or
11 security agreement relating to the extension, a covenant, warranty, or
12 other term or condition that relates to environmental compliance; moni-
13 toring or enforcing the terms and conditions of the extension of credit
14 or security interest; monitoring or undertaking one or more inspections
15 of such site; requiring a response action or other lawful means of
16 addressing the release or threatened release of a hazardous waste in
17 connection with such site prior to, during, or on the expiration of the
18 term of the extension of credit; providing financial or other advice or
19 counseling in an effort to mitigate, prevent, or cure default or diminu-
20 tion in the value of such site; restructuring, renegotiating, or other-
21 wise agreeing to alter the terms and conditions of the extension of
22 credit or security interest; exercising forbearance; exercising other
23 remedies that may be available under applicable law for the breach of a
24 term or condition of the extension of credit or security agreement; or
25 conducting in a non-negligent manner a remedial action directly or under
26 the direction of the department, if the actions do not rise to the level
27 of participating in management (within the meaning of subparagraphs (i)
28 and (ii) of this paragraph);
29 (v) the term "extension of credit" includes a lease finance trans-
30 action in which the lessor does not initially select such leased site
31 and does not during the lease term control the daily operations or main-
32 tenance of such site; or that conforms with regulations issued by the
33 appropriate federal banking agency (as defined in 12 USC section 1813)
34 or the superintendent of banks or with regulations issued by the
35 National Credit Union Administrative Board, as appropriate;
36 (vi) the term "financial or administrative function" includes a func-
37 tion such as that of a credit manager, accounts payable officer,
38 accounts receivable officer, personnel manager, comptroller, or chief
39 financial officer, or a similar function;
40 (vii) the terms "foreclosure" and "foreclose" mean, respectively,
41 acquiring and to acquire, such site through purchase at sale under a
42 judgment or decree, power of sale, or nonjudicial foreclosure sale; a
43 deed in lieu of foreclosure, or similar conveyance from a trustee; or
44 repossession, if such site was security for an extension of credit
45 previously contracted; conveyance pursuant to an extension of credit
46 previously contracted, including the termination of a lease agreement;
47 or any other formal or informal manner by which the person acquires, for
48 subsequent disposition, title to or possession of such site in order to
49 protect the security interest of the person;
50 (viii) the term "lender" means an insured depository institution (as
51 defined in 12 USC section 1813); an insured credit union (as defined in
52 12 USC section 1752); a bank or association chartered under the Farm
53 Credit Act of 1971 (12 U.S.C. 2001 et seq.); a leasing or trust company
54 that is an affiliate of an insured depository institution; any person
55 (including a successor or assignee of any such person) that makes a bona
56 fide extension of credit to or takes or acquires a security interest
S. 1409 159 A. 2109
1 from a nonaffiliated person; the Federal National Mortgage Association,
2 the Federal Home Loan Mortgage Corporation, the Federal Agricultural
3 Mortgage Corporation, or any other entity that in a bona fide manner
4 buys or sells loans or interests in loans; a person that insures or
5 guarantees against a default in the repayment of an extension of credit,
6 or acts as a surety with respect to an extension of credit, to a nonaf-
7 filiated person; and a person that provides title insurance and that
8 acquires such site as a result of assignment or conveyance in the course
9 of underwriting claims and claims settlements;
10 (ix) the term "operational function" includes a function such as that
11 of a facility or plant manager, operations manager, chief operating
12 officer, or chief executive officer; and
13 (x) the term "security interest" includes a right under a mortgage,
14 deed of trust, assignment, judgment lien, pledge, security agreement,
15 factoring agreement, or lease and any other right accruing to a person
16 to secure the repayment of money, the performance of a duty, or any
17 other obligation by a nonaffiliated person.
18 b. Such term includes any person owning or operating an inactive
19 hazardous waste disposal site but does not include the state of New York
20 or a public corporation which acquired, and thereafter retained without
21 participating in the management of such site, ownership or control
22 involuntarily by virtue of its function as sovereign. Neither the state
23 of New York nor any public corporation shall incur under this chapter
24 any liability as to matters within the jurisdiction of the department as
25 a result of actions taken in response to an emergency created by the
26 release or threatened release of hazardous waste by another person;
27 provided that such actions by the state or public corporation did not
28 constitute reckless, willful, wanton, or intentional misconduct. As used
29 in this paragraph:
30 (i) "public corporation" means a public corporation as defined in the
31 general construction law;
32 (ii) "involuntary acquisition of ownership or control" includes but is
33 not limited to the following:
34 (A) acquisitions by the state or a public corporation in its capacity
35 as sovereign, including acquisitions pursuant to abandonment
36 proceedings, or escheat, or any other circumstance of involuntary acqui-
37 sition in its capacity as sovereign;
38 (B) acquisitions by the state or a public corporation, or its agent,
39 acting as a conservator or receiver pursuant to a clear and direct stat-
40 utory mandate or regulatory authority;
41 (C) acquisitions of assets through foreclosure and its equivalents, or
42 otherwise, by the state or a public corporation in the course of admin-
43 istering a loan, loan guarantee, or loan insurance program;
44 (D) acquisitions by the state or a public corporation pursuant to
45 seizure or forfeiture authority; and
46 (E) acquisitions by the state or a public corporation as the result of
47 tax delinquency purposes; provided, that such ownership or control is
48 not retained primarily for investment purposes.
49 (iii) "management participation" means that the state or public corpo-
50 ration is actually participating in the management or operation of the
51 property but does not include the mere capacity to influence, ability to
52 influence, or unexercised right to control the operation of the proper-
53 ty. Nothing contained in this paragraph affects the applicability of
54 paragraph a of this subdivision in favor of a holder of a security
55 interest according to the terms thereof.
S. 1409 160 A. 2109
1 c. Such term includes any person owning or operating an inactive
2 hazardous waste disposal site, including a fiduciary; provided, however,
3 that such liability on the part of a fiduciary shall not exceed the
4 assets held in the fiduciary capacity if such person is not liable inde-
5 pendently of such person's ownership as a fiduciary or actions taken in
6 a fiduciary capacity including, but not limited to, the fiduciary's
7 negligently causing or contributing to the release or threatened release
8 of hazardous waste at such site.
9 (i) For purposes of this paragraph:
10 (A) the term "fiduciary" means a person acting for the benefit of
11 another party as a bona fide trustee; executor; administrator; custo-
12 dian; guardian of estates or guardian ad litem; receiver; conservator;
13 committee of estates of incapacitated persons; personal representative;
14 trustee (including a successor to a trustee) under an indenture agree-
15 ment, trust agreement, lease, or similar financing agreement, for debt
16 securities, certificates of interest or certificates of participation in
17 debt securities, or other forms of indebtedness as to which the trustee
18 is not, in the capacity of trustee, the lender; or representative in any
19 other capacity that the department, after providing public notice,
20 determines to be similar to the various capacities previously described
21 in this paragraph; and does not include either a person that is acting
22 as a fiduciary with respect to a trust or other fiduciary estate that
23 was organized for the primary purpose of, or is engaged in, actively
24 carrying on a trade or business for profit, unless the trust or other
25 fiduciary estate was created as part of, or to facilitate, one or more
26 estate plans or because of the incapacity of a natural person or a
27 person that acquires ownership or control of a property with the objec-
28 tive purpose of avoiding liability of the person or any other person.
29 (B) the term "fiduciary capacity" means the capacity of a person in
30 holding title to a property, or otherwise having control of or an inter-
31 est in a property, pursuant to the exercise of the responsibilities of
32 the person as a fiduciary.
33 (ii) Nothing in this paragraph affects the rights or immunities or
34 other defenses that are available under law that is applicable to a
35 person subject to this subdivision; or creates any liability for a
36 person or a private right of action against a fiduciary or any other
37 person.
38 (iii) Nothing in this paragraph applies to a person if that person
39 acts in a capacity other than that of a fiduciary or in a beneficiary
40 capacity and in that capacity, directly or indirectly benefits from a
41 trust or fiduciary relationship; or is a beneficiary and a fiduciary
42 with respect to the same fiduciary estate and as a fiduciary, receives
43 benefits that exceed customary or reasonable compensation, and inci-
44 dental benefits, permitted under other applicable law.
45 d. Such term includes any person owning or operating an inactive
46 hazardous waste disposal site, including an industrial development agen-
47 cy created under the general municipal law, other than one that holds
48 bare legal title to such site; has not participated with any party
49 responsible under law for the remediation of contamination in, on, or
50 from such site to attempt to have such a party avoid its remedial
51 liability; has not exercised any contractual rights it may have or had,
52 if any, under the lease, guarantee, or any other financing agreement
53 pursuant to which the industrial development agency would assume control
54 over the actual operation of the site; and has not taken possession or
55 control of the site. Nothing in this paragraph affects the rights or
56 immunities or other defenses that are available under law that are
S. 1409 161 A. 2109
1 applicable to an industrial development agency; or creates any liability
2 for a person or a private right of action against an industrial develop-
3 ment agency or any other person.
4 e. (i) Any other provision of law to the contrary notwithstanding, no
5 not-for-profit corporation shall incur any liability for any statutory
6 claims of the state under this title as an owner or operator of an inac-
7 tive hazardous waste disposal site or a person responsible for the
8 disposal of hazardous waste at or onto such site, if such site is or
9 will be used for community purposes and if such not-for-profit corpo-
10 ration acquired and retains such site without participating in the
11 development of such site.
12 (ii) The exemption from liability set forth in this section shall not
13 limit any other defense, indemnification or privilege under local, state
14 or federal law.
15 (iii) When used in this section:
16 (A) "Community purposes" shall mean an activity that the local munici-
17 pal corporation has certified as being undertaken by the not-for-profit
18 corporation acting on behalf of such municipal corporation, or as being
19 in the public interest, including without limitation, creation of new
20 permanent jobs, construction or renovation of affordable housing,
21 historic preservation activities, provision of new or revitalized open
22 space, or establishment of other community facilities such as medical
23 facilities or community centers; provided, that nothing in this section
24 shall be deemed to establish a relationship of principal and agent
25 between the municipality and the not-for-profit corporation. Such
26 certification may be withdrawn at any time if the municipality deter-
27 mines that the certification was made as a result of a misrepresentation
28 of a material fact by the not-for-profit corporation.
29 (B) "Participating in development" means carrying out, or causing or
30 permitting the carrying out, of any above-grade improvements to the
31 affected site; but does not include licensing, regulatory oversight, or
32 the mere capacity to regulate or influence, or the unexercised right to
33 control the operation of the site. For purposes hereof, participating in
34 development does not include:
35 (I) having the capacity to influence management of such site;
36 (II) having the unexercised right to control such site or operations
37 thereof;
38 (III) holding, abandoning or releasing a security interest or tax lien
39 on such site;
40 (IV) including a condition relating to environmental compliance in a
41 contract, permit, license or security agreement;
42 (V) monitoring the terms and conditions of an agreement;
43 (VI) monitoring one or more inspections of such site;
44 (VII) participating in the marketing or determination of creditworthi-
45 ness or income eligibility of prospective homeowners;
46 (VIII) participating in development and allocation of sources and uses
47 of project funding;
48 (IX) exercising other remedies available under applicable laws;
49 (X) applying for federal or state statutory site benefits.
50 (iv) The exemption under this section shall not apply if any member,
51 officer or director of the not-for-profit corporation is or was an offi-
52 cer or director of any person responsible for the site under applicable
53 principles of statutory or common law liability, or any subsequent owner
54 of such site, whether by election, designation , ex officio or in any
55 other capacity or manner.
S. 1409 162 A. 2109
1 (v) Notwithstanding any other subdivision of this section, a not-for-
2 profit corporation shall be subject to:
3 (A) all summary abatement powers of the commissioner set forth in
4 section 71-0301 of the environmental conservation law; and
5 (B) liability as an owner or operator of a site or a person responsi-
6 ble for the disposal of hazardous waste at or onto such site, if the
7 not-for-profit corporation by willful or intentional misconduct or
8 negligence allows a release of hazardous waste onto other property.
9 (vi) The exemptions from liability provided by this section shall
10 continue to be effective with respect to a not-for-profit corporation's
11 ownership of an affected site only if the not-for-profit corporation
12 which takes possession of such site seeks to sell, lease or otherwise
13 divest itself of such site within five years or at the earliest practi-
14 cable and reasonable time taking into account the market conditions,
15 legal and regulatory requirements, zoning and planned usage of the site,
16 and the best interest of the not-for-profit corporation and the public,
17 including the surrounding community. Sale of this site shall be conclu-
18 sive proof of the not-for-profit corporation's reasonable efforts to
19 divest itself of the site. If the not-for-profit corporation is unable
20 to divest itself of the site within five years of the date on which the
21 remediation of the site is completed, such not-for-profit corporation
22 shall provide a report annually to the municipal corporation in which
23 such site is located to establish that its efforts to divest itself of
24 such site within the preceding twelve months have been diligent. Such
25 report shall document the actions of the not-for-profit corporation to
26 comply with this subdivision, market conditions, the effects, if any, of
27 contamination on the site's marketability, and the reasonable steps
28 taken by such not-for-profit corporation to render such site marketable.
29 (vii) Any not-for-profit corporation that has taken possession of an
30 affected site shall notify the department of any release of hazardous
31 waste or petroleum within ten days of obtaining actual knowledge of such
32 release, unless a shorter notice period is required under any other
33 provision of law, in which case the shorter notice period controls.
34 Failure to notify the department within the ten day or shorter notifica-
35 tion period shall result in the loss of the exemption set forth in this
36 section.
37 (viii) The exemptions from liability provided by this section shall
38 not be assignable to any third party.
39 5. "Waste" means [any garbage, refuse, sludge from a waste treatment
40 plant, water supply treatment plant, or air pollution control facility,
41 and other discarded material, whether or not such material may eventual-
42 ly be used for some other purpose, including solid, liquid, semisolid,
43 or contained gaseous material resulting from industrial, commercial,
44 mining and agricultural operations or from community activities, and
45 source, special nuclear or by-product material as defined in the Atomic
46 Energy Act of 1954, as amended, except as may be provided by existing
47 agreements between the state of New York and the government of the
48 United States, but does not include solid or dissolved material in
49 domestic sewage, or solid or dissolved materials in irrigation return
50 flows or industrial discharges which are point sources subject to
51 permits under article seventeen of the environmental conservation law]
52 waste as that term is defined in section 27-1301 of the environmental
53 conservation law.
54 § 41. Subdivision 4 of section 1389-b of the public health law, as
55 added by chapter 282 of the laws of 1979, is amended to read as follows:
S. 1409 163 A. 2109
1 4. (a) Any order issued pursuant to subdivision three of this section
,
2 other than one issued on consent of the person, shall be issued only
3 after notice and the opportunity for hearing is provided to the persons
4 who may be the subject of such order. The commissioner shall determine
5 which persons are responsible pursuant to said subdivision according to
6 applicable principles of statutory or common law liability. Such persons
7 shall be entitled to raise any statutory or common law defenses at any
8 such hearing, and such defenses shall have the same force and effect at
9 such hearings as they would have in a court of law. In the event a hear-
10 ing is held, no order shall be issued by the commissioner under subdivi-
11 sion three of this section until a final decision has been rendered. Any
12 such order shall be reviewable pursuant to article seventy-eight of the
13 civil practice law and rules within thirty days after service of said
14 order. The commissioner may request the participation of the attorney
15 general in such hearings.
16 (b) There shall be no liability under this section for a person other-
17 wise liable who can establish by a preponderance of the evidence that
18 the significant threat to the environment attributable to hazardous
19 waste disposed at an inactive hazardous waste disposal site was caused
20 solely by an act of God; an act of war; or an act or omission of a third
21 party other than an employee or agent of such person, or other than one
22 whose act or omission occurs in connection with a contractual relation-
23 ship, existing directly or indirectly, with such person (except where
24 the sole contractual arrangement arises from a published tariff and
25 acceptance for carriage by a common carrier or rail), if such person
26 establishes by a preponderance of the evidence that such person exer-
27 cised due care with respect to the hazardous waste concerned, taking
28 into consideration the characteristics of such hazardous waste, in light
29 of all relevant facts and circumstances, and took precautions against
30 foreseeable acts or omissions of any such third party and the conse-
31 quences that could foreseeably result from such acts or omissions; or
32 any combination of them. For purposes of this paragraph, the term,
33 "contractual relationship" includes, but is not limited to, land
34 contracts, deeds, or other instruments transferring title or possession,
35 unless the real property on which the site concerned is located was
36 acquired by such person after the disposal or placement of the hazardous
37 waste on, in, or at such site, and such person establishes one or more
38 of the circumstances described in subparagraph (i), (ii), or (iii) of
39 this paragraph by a preponderance of the evidence:
40 (i) At the time such person acquired the site, such person did not
41 know and had no reason to know that any hazardous waste which is the
42 subject of the significant threat determination was disposed of on, in,
43 or at the site. To establish that such person has no reason to know,
44 such person must have undertaken, at the time of acquisition, all appro-
45 priate inquiry into the previous ownership and uses of such site
46 consistent with good commercial or customary practice in an effort to
47 minimize liability. For purposes of the preceding sentence, the commis-
48 sioner shall take into account any specialized knowledge or experience
49 on the part of such person, the relationship of the purchase price to
50 the value of the property if uncontaminated, commonly known or reason-
51 ably ascertainable information about the property, the obviousness of
52 the presence or likely presence of contamination at the property, and
53 the ability to detect such contamination by appropriate inspection; or
54 (ii) Such person is a government entity which acquired the site by
55 escheat, or through any other involuntary transfer or acquisition; or
S. 1409 164 A. 2109
1 (iii) Such person acquired the site by inheritance or bequest, and
2 that such person exercised due care with respect to the hazardous waste
3 concerned, taking into consideration the characteristics of such hazard-
4 ous waste, in light of all relevant facts and circumstances, and took
5 precautions against foreseeable acts or omissions of any such third
6 party and the consequences that could foreseeably result from such acts
7 or omissions.
8 § 42. Section 1389-e of the public health law is REPEALED.
9 § 43. Subdivision 1 of section 316-b of the real property law, as
10 amended by chapter 140 of the laws of 1991, is amended and a new subdi-
11 vision 3 is added to read as follows:
12 1. On and after July first, nineteen hundred ninety-three, each
13 recording officer must provide, at the expense of his county, proper
14 books for making an index of present owners of inactive hazardous waste
15 disposal sites contained in the [annual report] registry required by
16 section 27-1305 of the environmental conservation law. The index shall
17 contain an alphabetical listing of all owners listed in such annual
18 report completed by the department of environmental conservation,
19 together with a reference, for each present owner, to the page and year
20 of the report where information regarding the inactive hazardous waste
21 site may be located. The index shall also contain the tax map parcel
22 number or the section, block and lot number of the site.
23 3. Each recording officer shall record and index such instruments as
24 may be required to be recorded pursuant to title thirteen or fourteen of
25 article twenty-seven of the environmental conservation law, or title
26 five of article fifty-six of the environmental conservation law, or part
27 two of article twelve of the navigation law, or any regulation promul-
28 gated pursuant thereto, or any order or agreement entered into under
29 authority thereof or of any such regulations.
30 § 44. The real property tax law is amended by adding a new section
31 485-i to read as follows:
32 § 485-i. Brownfield site redevelopment exemption. 1. (a) Real property
33 that is the subject of a voluntary agreement pursuant to title fourteen
34 of article twenty-seven of the environmental conservation law, and any
35 improvements made on such property after the date that a request for
36 participation is accepted pursuant to section 27-1405 of the environ-
37 mental conservation law, shall be exempt from taxation and special ad
38 valorem levies by any municipal corporation in which it is located for
39 the period and to the extent herein provided.
40 (b) For the first three years following the acceptance of a request
41 for participation, the amount of such exemption shall be one hundred
42 percent of the "base amount", determined pursuant to subdivision two of
43 this section. In the fourth year the amount shall be seventy-five
44 percent of the base amount, in the fifth year the amount shall be sixty
45 percent of the base amount, and the amount of the exemption shall
46 decline by ten percentage points in each of the next six years resulting
47 in an exemption of ten percent of the base amount in the tenth and final
48 year.
49 2. (a) The base amount of the exemption shall be the extent of the
50 increase in assessed value attributable to such construction, alter-
51 ation, installation, remediation or improvement as determined in the
52 initial year for which application for exemption is made pursuant to
53 this section. The base amount shall remain constant for the authorized
54 term of the exemption, subject to the following:
55 (i) if there is subsequent construction, alteration, installation,
56 remediation or improvement during the term of exemption, the base amount
S. 1409 165 A. 2109
1 shall be revised to include the increase in assessed value attributable
2 to such construction, alteration, installation, remediation or improve-
3 ment.
4 (ii) if a change in level of assessment of fifteen percent or more is
5 certified for an assessment roll pursuant to the rules of the state
6 board, the base amount shall be adjusted by such change in level of
7 assessment. The exemption on that assessment roll shall thereupon be
8 recomputed, notwithstanding the fact that the assessor receives the
9 certification after the completion, verification and filing of the final
10 assessment roll. In the event the assessor does not have custody of the
11 roll when such certification is received, the assessor shall certify the
12 recomputed exemption to the local officers having custody and control of
13 the roll, and such local officers are hereby directed and authorized to
14 enter the recomputed exemption certified by the assessor on the roll.
15 (b) No such exemption shall be granted pursuant to this subdivision
16 concurrent with or subsequent to any other real property tax exemption
17 granted to the same improvements to real property, except, where during
18 the period of such previous exemption, payments in lieu of taxes or
19 other payments were made to the local government in an amount that would
20 have been equal to or greater than the amount of real property taxes
21 that would have been paid on such improvements had such property been
22 granted an exemption pursuant to this section. In such case, an
23 exemption shall be granted for a number of years equal to the ten year
24 exemption granted pursuant to this section less the number of years the
25 property would have been previously exempt from real property taxes.
26 3. Such exemption shall be granted only upon application by the owner
27 of such real property on a form prescribed by the state board. The
28 application shall be filed with the assessor of the assessing unit on or
29 before the appropriate taxable status date of such assessing unit and no
30 later than one year from the date of completion of such construction,
31 alteration, installation, remediation or improvement.
32 4. If the assessor receives a timely and complete application by the
33 owner of the real property, the assessor shall approve the application
34 and such real property shall thereafter be exempt from taxation as here-
35 in provided commencing with the assessment roll prepared after the taxa-
36 ble status date referred to in subdivision three of this section. The
37 assessed value of any exemption granted pursuant to this section shall
38 be entered by the assessor on the assessment roll with the taxable prop-
39 erty, with the amount of the exemption entered in a separate column.
40 5. Such exemption shall only be available if, after a public hearing,
41 the governing board of a county, city, town or village adopts a local
42 law, or a school district, other than a school district subject to arti-
43 cle fifty-two of the education law, adopts a resolution providing that
44 such exemptions shall be given under this section to voluntary agree-
45 ments relating to properties within the municipality. Such local law or
46 resolution may be subsequently repealed; provided, however, that a
47 project in the course of construction and exemptions existing prior to
48 such repeal shall not be subject to such repeal.
49 6. If at any time the governing body of the municipality finds that
50 the voluntary agreement has been terminated or that such voluntary
51 agreement is not being materially complied with, the tax exemption shall
52 be terminated.
53 § 45. Subdivisions 1, 2, 3, 6, paragraph (a) of subdivision 12, subdi-
54 visions 13, 14 and 15 of section 97-b of the state finance law, subdivi-
55 sions 1, 2 and paragraph (f) of subdivision 3 as amended and paragraph
56 (g) of subdivision 3 as added by chapter 413 of the laws of 1996, subdi-
S. 1409 166 A. 2109
1 vision 3 as amended and subdivisions 13, 14 and 15 as added by chapter
2 512 of the laws of 1986, paragraph (e) of subdivision 3 as amended by
3 chapter 9 of the laws of 1994, subdivision 6 as amended by chapter 38 of
4 the laws of 1985, paragraph (a) of subdivision 12 as amended by section
5 13 of part C of chapter 389 of the laws of 1997, are amended and three
6 new subdivisions 15, 16 and 17 are added to read as follows:
7 1. There is hereby established in the custody of the state comptroller
8 a nonlapsing revolving fund to be known as the "hazardous waste remedial
9 fund", which shall consist of a "site investigation and construction
10 account" [and], an "industry fee transfer account[," and]", an "environ-
11 mental restoration project account", and a "hazardous waste cleanup
12 account".
13 2. Such fund shall consist of all of the following:
14 (a) all moneys [appropriated for transfer] transferred to the fund's
15 site investigation and construction account; (b) all fines and other
16 sums accumulated in the fund prior to April first, nineteen hundred
17 eighty-eight pursuant to section 71-2725 of the environmental conserva-
18 tion law for deposit in the fund's site investigation and construction
19 account; (c) [all moneys collected or received by the department of
20 taxation and finance pursuant to section 27-0923 of the environmental
21 conservation law for deposit in the fund's industry fee transfer
22 account; (d) all moneys paid into the fund pursuant to section 72-0201
23 of the environmental conservation law which shall be deposited in the
24 fund's industry fee transfer account; (e)] all moneys paid into the fund
25 pursuant to section one hundred eighty-six of the navigation law which
26 shall be deposited in the fund's industry fee transfer account; [(f)]
27 (d) all moneys paid into the fund by municipalities for repayment of
28 landfill closure loans made pursuant to former title five of article
29 fifty-two of the environmental conservation law for deposit in the
30 fund's site investigation and construction account; [(g)] (e) all monies
31 recovered under [section] sections 56-0503, 56-0505 and 56-0507 of the
32 environmental conservation law for deposit into the fund's environmental
33 restoration project account; [and (h)] (f) all monies transferred from
34 the remedial program transfer fund, created pursuant to subdivision five
35 of section ninety-seven-cccc of this chapter, for deposit into the
36 fund's hazardous waste cleanup account; and (g) other moneys credited or
37 transferred thereto from any other fund or source for deposit in the
38 fund's site investigation and construction account.
39 3. Moneys of the hazardous waste remedial fund, except monies in the
40 industry fee transfer account, when allocated, shall be available to
41 [the department of environmental conservation] all state departments and
42 agencies for the following purposes:
43 (a) inactive hazardous waste disposal site remedial programs pursuant
44 to section 27-1313 of the environmental conservation law and section
45 thirteen hundred eighty-nine-b of the public health law;
46 (b) cleaning up or restoring to its original state any area where
47 hazardous wastes were disposed of or possessed unlawfully in violation
48 of article twenty-seven of the environmental conservation law. For the
49 purposes of this section "the original state of the area" shall mean the
50 reasonably ascertainable condition of the property immediately prior to
51 the unlawful disposal or, if it is impracticable to determine such
52 condition, then it is the reasonable environmentally sound condition of
53 the area;
54 (c) inactive hazardous waste site identification, classification, and
55 investigation actions including testing, analyses, record searches, and
56 other expenditures necessary to develop the state inactive hazardous
S. 1409 167 A. 2109
1 waste disposal site remedial plan required pursuant to section 27-1305
2 of the environmental conservation law;
3 (d) financing the non-federal share of the cost of clean up[,] and
4 site remediation activities, as well as post-closure operation and main-
5 tenance costs, pursuant to the federal Comprehensive Environmental
6 Response, Compensation and Liability Act of 1980;
7 (e) emergency response action to clean up spills or abate other public
8 health or environmental hazards involving hazardous wastes, except those
9 provided for under the New York state environmental protection and spill
10 compensation fund;
11 (f) [the study of hazardous substance waste disposal sites pursuant to
12 section 27-1316 of the environmental conservation law and section one
13 thousand three hundred eighty-nine-e of the public health law; and
14 (g)] to undertake such remedial measures as the department of environ-
15 mental conservation may determine necessary due to environmental condi-
16 tions related to the property subject to an agreement to provide state
17 assistance under title five of article fifty-six of the environmental
18 conservation law that were unknown to such department at the time of its
19 approval of such agreement which indicates that conditions on such prop-
20 erty are not sufficiently protective of human health for its reasonably
21 anticipated uses or due to information received, in whole or in part,
22 after such department's approval of such agreement's final engineering
23 report and certification, which indicates that such agreement's remedial
24 activities are not sufficiently protective of human health for such
25 property's reasonably anticipated uses; and, respecting the monies in
26 the environmental restoration project account in excess of ten million
27 dollars, shall provide state assistance under title five of article
28 fifty-six of the environmental conservation law;
29 (g) with respect to moneys in the hazardous waste cleanup account, to
30 pay the reasonable costs incurred by the state in negotiating and over-
31 seeing implementation of voluntary agreements and conducting remediation
32 under title fourteen of article twenty-seven of the environmental
33 conservation law; and
34 (h) with respect to moneys in the hazardous waste cleanup account, to
35 provide state assistance pursuant to section nine hundred seventy-r of
36 the general municipal law.
37 6. The commissioner of the department of environmental conservation
38 shall make all reasonable efforts to recover the full amount of any
39 funds expended from the fund pursuant to paragraph (a) of subdivision
40 three of this section through litigation or cooperative agreements with
41 responsible persons. Any and all moneys recovered or reimbursed pursuant
42 to this section through voluntary agreements or court orders shall be
43 deposited with the comptroller and credited to the account of such fund
44 from which such expenditures were made; provided, however, that any
45 moneys recovered or reimbursed for funds expended from the hazardous
46 waste cleanup account shall be deposited in the remedial program trans-
47 fer fund.
48 (a) The comptroller shall, on July first, nineteen hundred eighty-
49 eight and on each succeeding July first until such time as the
50 surcharges required pursuant to subdivision [fourteen] thirteen of this
51 section are imposed, estimate the amount of revenues to be received by
52 the industry fee transfer account of this fund in the next succeeding
53 twenty months and the transfers which will be required to be made during
54 the same period. When calculating the estimate of industry fee transfer
55 account revenues available for the purpose of certifying, pursuant to
56 this subdivision, when such account's balance will be insufficient to
S. 1409 168 A. 2109
1 make the transfer required by subdivision eleven of this section, the
2 comptroller shall add to the amount estimated to actually be available
3 an additional credit factor as determined by paragraph (b) of this
4 subdivision. If the comptroller determines that the industry fee trans-
5 fer account will, at any time during the succeeding twenty month period,
6 lack sufficient funds to make the transfer required by subdivision elev-
7 en of this section, the comptroller shall so certify to the [state super
8 fund management board, created pursuant to section 27-1319 of the envi-
9 ronmental conservation law, and to the] governor and the legislature.
10 13. [Upon the receipt of a certification provided pursuant to subdivi-
11 sion twelve of this section, the state superfund management board shall
12 review and analyze the historical pattern of revenue received by the
13 industry fee transfer account and the long term projection of future
14 transfers from such account, and shall report on or before December
15 first of such year to the governor and the legislature its recommenda-
16 tions, if any, as to the sources of additional revenues which could be
17 used to supplement the revenues to be received by such fund in order to
18 achieve the equal sharing of debt service costs as implemented in subdi-
19 vision nine of this section.
20 14.] In the absence of further direction by law, effective April first
21 of the fiscal year immediately following the certification by the comp-
22 troller made pursuant to subdivision twelve of this section, surcharges
23 in the following amount shall be imposed: (a) twenty-five percent of the
24 fees imposed by sections 72-0402 and 72-0502 of the environmental
25 conservation law. Notwithstanding any other provision of law to the
26 contrary, moneys collected from such surcharge shall be deposited in
27 their entirety to the industry fee transfer account established pursuant
28 to subdivision one of this section; (b) fifty percent of the fees
29 imposed by section 27-0923 of the environmental conservation law, except
30 for those fees contained in paragraphs b and c of subdivision one, and
31 paragraph b of subdivision two of such section, which shall be exempt
32 from such surcharge. Moneys collected from such surcharge shall be
33 deposited to the industry fee transfer account established pursuant to
34 subdivision one of this section.
35 [15.] 14. On and after the date of such certification, the comptroller
36 shall maintain records with respect to such account to reflect each
37 unpaid transfer for the period during which it is unpaid. On and after
38 such date, any deposits in the industry fee transfer account shall be
39 immediately transferred to the general fund of the state until an amount
40 equal to the total of any unpaid transfers and accumulated interest
41 shall have been transferred to the general fund.
42 15. The comptroller shall, on the first day of July succeeding the
43 state fiscal year during which the bonds and notes issued under the
44 environmental quality bond act of nineteen hundred eighty-six to finance
45 the cleanup of inactive hazardous waste disposal sites in aggregate
46 exceed ninety-five percent of the amount authorized pursuant to such
47 bond act, estimate the total debt service of such bonds and notes. The
48 comptroller shall also estimate the state fiscal year in which the sum
49 of the transfers required by subdivision eleven of this section and the
50 additional credit factor as determined by paragraph (b) of subdivision
51 twelve of this section exceeds fifty percent of the estimated debt
52 service for such bonds and notes. The comptroller shall certify to the
53 governor and the legislature the estimated state fiscal year when fifty
54 percent of such estimated debt service will be exceeded.
55 16. Notwithstanding any law to the contrary, effective April first of
56 the state fiscal year succeeding the state fiscal year certified in
S. 1409 169 A. 2109
1 subdivision fifteen of this section, all moneys currently deposited in
2 the industry fee transfer account of the hazardous waste remedial fund
3 pursuant to subdivision two of this section shall be deposited in the
4 remedial program transfer fund. Further, effective April first of the
5 state fiscal year following such certification, subdivisions thirteen
6 and fourteen of this section shall be deemed repealed.
7 17. Notwithstanding any law to the contrary, and in accordance with
8 section four of this chapter, the comptroller is hereby authorized and
9 directed, upon the request of the director of the budget, to transfer
10 moneys from the site investigation and construction account of the
11 hazardous waste remedial fund to the hazardous waste cleanup account of
12 the hazardous waste remedial fund.
13 § 46. The state finance law is amended by adding a new section 97-cccc
14 to read as follows:
15 § 97-cccc. Remedial program transfer fund. 1. There is hereby estab-
16 lished in the joint custody of the comptroller and the commissioner of
17 taxation and finance a special fund to be known as the "remedial program
18 transfer fund".
19 2. Such fund shall consist of all of the following:
20 (a) registration fees collected pursuant to subdivision two of section
21 17-1009 of the environmental conservation law for deposit in this fund;
22 (b) all license fees, fines, and penalties collected pursuant to para-
23 graph (b) of subdivision one and paragraph (a) of subdivision four of
24 section one hundred seventy-four of the navigation law, penalties
25 collected pursuant to paragraphs (b) and (c) of subdivision four of
26 section one hundred seventy-four-a of the navigation law, moneys
27 collected pursuant to section one hundred eighty-seven of the navigation
28 law, and all penalties collected pursuant to section one hundred nine-
29 ty-two of the navigation law;
30 (c) all penalties collected pursuant to paragraph (c) of subdivision
31 one and paragraph (b) of subdivision four of section one hundred seven-
32 ty-four of the navigation law effective April first of the state fiscal
33 year succeeding the state fiscal year certified in subdivision fifteen
34 of section ninety-seven-b of this article;
35 (d) moneys recovered pursuant to subdivision six of section ninety-
36 seven-b of this article for deposit in this fund;
37 (e) all fees paid into the fund pursuant to paragraph b of subdivision
38 one of section 72-0201 of the environmental conservation law;
39 (f) all moneys collected or received by the department of taxation and
40 finance pursuant to section 27-0923 of the environmental conservation
41 law;
42 (g) all moneys paid into the fund pursuant to subdivision sixteen of
43 section ninety-seven-b of this article;
44 (h) all fees paid into the fund pursuant to section 72-0403 of the
45 environmental conservation law;
46 (i) all moneys paid into the fund pursuant to section 27-1415 of the
47 environmental conservation law;
48 (j) other moneys credited or transferred thereto from any other fund
49 or source for deposit in the fund;
50 (k) all interest accrued on any such moneys deposited into the fund;
51 and
52 (l) all moneys paid pursuant to subdivision ten of section 27-1313 of
53 the environmental conservation law and subdivision one of section one
54 hundred eighty-one of the navigation law.
55 3. Notwithstanding any law to the contrary, and in accordance with
56 section four of this chapter, the comptroller is hereby authorized and
S. 1409 170 A. 2109
1 directed, upon the request of the director of the budget, for each state
2 fiscal year to transfer from the general fund to this fund up to an
3 amount equivalent to the projected amount of moneys to be deposited or
4 transferred into this fund pursuant to paragraphs (a), (b), (c), (d),
5 (e), (f), (g), (h), (i), and (l) of subdivision two of this section for
6 each such state fiscal year.
7 4. Revenues in the remedial program transfer fund shall be kept sepa-
8 rate and shall not be commingled with any other moneys in the custody of
9 the comptroller. All deposits of such revenues shall, if required by the
10 comptroller, be secured by obligations of the United States or of the
11 state having a market value equal at all times to the amount of such
12 deposits, and all banks and trust companies are authorized to give secu-
13 rity for such deposits. Any such revenues in such fund may, upon the
14 discretion of the comptroller, be invested in obligations in which the
15 comptroller is authorized to invest pursuant to section ninety-eight of
16 this article.
17 5. Notwithstanding any law to the contrary, and in accordance with
18 section four of this chapter, the comptroller is hereby authorized and
19 directed, upon the request of the director of the budget, to transfer
20 moneys deposited in the remedial program transfer fund, and interest
21 accrued thereon, to the environmental protection and oil spill compen-
22 sation fund or to the hazardous waste cleanup account of the hazardous
23 waste remedial fund.
24 § 47. Subdivision 3 of section 362 of chapter 83 of the laws of 1995
25 amending the state finance law and other laws relating to bonds, notes
26 and revenues, as amended by section 2 of part E of chapter 413 of the
27 laws of 1999, is amended to read as follows:
28 3. Sections fifteen through seventeen of this act shall take effect
29 immediately and shall be deemed to have been in full force and effect on
30 and after April 1, 1995[, and shall expire and be deemed repealed April
31 1, 2004];
32 § 48. This act shall take effect immediately; provided, that sections
33 three, four, seventeen, eighteen, nineteen, twenty, twenty-one, twenty-
34 two, twenty-three, twenty-four, twenty-six, twenty-nine, thirty, thir-
35 ty-one, thirty-five, forty-five and forty-six of this act shall be
36 deemed to have been in full force and effect on and after April 1, 2003;
37 provided further, that subdivisions 13 and 14 of section 97-b of the
38 state finance law, as designated by section forty-five of this act,
39 shall be deemed repealed effective April first of the state fiscal year
40 following the certification provided for in subdivision 15 of such
41 section 97-b; and provided further, that the state comptroller shall
42 notify the legislative bill drafting commission upon the occurrence of
43 the certification provided for in subdivision 15 of section 97-b of the
44 state finance law in order that the commission may maintain an accurate
45 and timely effective data base of the official text of the laws of the
46 state of New York in furtherance of effecting the provisions of section
47 44 of the legislative law and section 70-b of the public officers law.
48 § 2. Severability clause. If any clause, sentence, paragraph, subdivi-
49 sion, section or part of this act shall be adjudged by any court of
50 competent jurisdiction to be invalid, such judgment shall not affect,
51 impair, or invalidate the remainder thereof, but shall be confined in
52 its operation to the clause, sentence, paragraph, subdivision, section
53 or part thereof directly involved in the controversy in which such judg-
54 ment shall have been rendered. It is hereby declared to be the intent of
55 the legislature that this act would have been enacted even if such
56 invalid provisions had not been included herein.
S. 1409 171 A. 2109
1 § 3. This act shall take effect immediately provided, however, that
2 the applicable effective date of Parts A through AA of this act shall be
3 as specifically set forth in the last section of such Parts.