A. 6063 2
of section 27-1305 of this article prior to the effective date of this
article, where such real property is owned by a volunteer shall not be
deemed ineligible to participate and further provided that the status of
any such site as listed in the registry shall not be altered prior to
the issuance of a certificate of completion pursuant to section 27-1419
of this title;
[(b)] (II) listed on the national priorities list established under
authority of 42 U.S.C. section 9605;
[(c)] (III) subject to an enforcement action under title seven or nine
of this article, [except] OR PERMITTED AS a treatment, storage or
disposal facility [subject to a permit]; provided, that nothing herein
contained shall be deemed otherwise to exclude from the scope of the
term "brownfield site" a hazardous waste treatment, storage or disposal
facility having interim status according to regulations promulgated by
the commissioner;
[(d)] (IV) subject to an order for cleanup pursuant to article twelve
of the navigation law or pursuant to title ten of article seventeen of
this chapter except such property shall not be deemed ineligible if it
is subject to a stipulation agreement; or
[(e)] (V) subject to any other on-going state or federal environmental
enforcement action related to the contamination which is at or emanating
from the site subject to the present application.
(VI) PROVIDED HOWEVER FOR OTHERWISE INELIGIBLE SITES GIVEN A CLASSI-
FICATION AS DESCRIBED IN SUBPARAGRAPH TWO OR THREE OF PARAGRAPH B OF
SUBDIVISION TWO OF SECTION 27-1305 OF THIS ARTICLE, AND INELIGIBLE SITES
DESCRIBED IN SUBPARAGRAPH (III) OF THIS PARAGRAPH, A VOLUNTEER SHALL NOT
BE DEEMED INELIGIBLE TO PARTICIPATE IN REGARDS TO ANY SUCH INELIGIBLE
SITE IF SUCH VOLUNTEER INTENDS TO ACQUIRE AND REDEVELOP SUCH REAL PROP-
ERTY AND ASSUME RESPONSIBILITY, NOT FOR PAST COSTS INCURRED PRIOR TO THE
APPLICATION, BUT FOR ALL FUTURE COSTS TO COMPLETE ANY REMAINING INVESTI-
GATION AND REMEDIATION UPON ACQUISITION OF SUCH REAL PROPERTY, OR MAIN-
TAIN LONG TERM INSTITUTIONAL AND ENGINEERING CONTROLS OF THE SITE, AND
IMPLEMENT A REDEVELOPMENT PROJECT ON THE SITE, THE SITE CONFORMS TO THE
DEFINITION OF A BROWNFIELD SITE IN PARAGRAPH (A) OF THIS SUBDIVISION,
AND ENTERS INTO A BROWNFIELD CLEANUP AGREEMENT IN ACCORDANCE WITH
SECTION 27-1409 OF THIS TITLE. ANY ON-GOING STATE ACTIONS AND/OR ORDERS
WILL NOT BE SUPERSEDED BY THE VOLUNTEER'S BROWNFIELD CLEANUP AGREEMENT,
BUT WILL REMAIN IN FULL FORCE AND EFFECT UNTIL SUCH TIME AS THE VOLUN-
TEER RECEIVES A CERTIFICATE OF COMPLETION PURSUANT TO SECTION 27-1419 OF
THIS TITLE AND THEREAFTER TO THE EXTENT THE VOLUNTEER OR SUBSEQUENT
OWNER OR OPERATOR FAIL TO COMPLY WITH THE TERMS OF AN ENVIRONMENTAL
EASEMENT IF ONE HAD BEEN CREATED PURSUANT TO TITLE THIRTY-SIX OF ARTICLE
SEVENTY-ONE, OR AN ENVIRONMENTAL COVENANT AS OF THIS CHAPTER PURSUANT TO
TITLE FORTY-FIVE OF ARTICLE SEVENTY-ONE OF THIS CHAPTER. IN THE EVENT
THE VOLUNTEER DOES NOT RECEIVE THE CERTIFICATE OF COMPLETION OR SUCH
CERTIFICATE OF COMPLETION IS REVOKED FOR ANY REASON, ANY AND ALL STATE
ENFORCEMENTS ACTION IMMEDIATELY WILL RESUME AFTER TIMELY NOTICE TO ALL
PARTIES.
S 2. The opening paragraph of subdivision 2 of section 27-1409 of the
environmental conservation law is designated paragraph (a) and a new
paragraph (b) is added to read as follows:
(B) NOTWITHSTANDING ANY PROVISION OF LAW TO THE CONTRARY, ALL APPLI-
CANTS ACCEPTING PARTICIPATION IN THE BROWNFIELD CLEANUP PROGRAM SHALL
PAY ALL REASONABLE STATE COSTS, HOWEVER, SUCH STATE COSTS SHALL NOT
EXCEED FIVE PERCENT OF THE TOTAL SITE PREPARATION COSTS, AS DEFINED BY
PARAGRAPH TWO OF SUBDIVISION (B) OF SECTION TWENTY-ONE OF THE TAX LAW,
A. 6063 3
PAID OR INCURRED BY THE APPLICANT, AND THE TOTAL STATE COSTS OWED SHALL
BE PAYABLE UPON NINETY DAYS OF, (I) THE ISSUANCE OF THE CERTIFICATE OF
COMPLETION FOR THE PROJECT, OR, (II) UPON TERMINATION OF A PARTICIPANT'S
BROWNFIELD CLEANUP AGREEMENT BY THE DEPARTMENT FOR FAILURE TO SUBSTAN-
TIALLY COMPLY WITH SUCH AGREEMENT'S TERMS AND CONDITIONS, OR (III), THE
VOLUNTARY WITHDRAWAL OF THE APPLICANT. FAILURE TO REMIT DUE PAYMENTS TO
THE STATE SHALL RESULT IN THE REVOCATION OF SUCH CERTIFICATE OF
COMPLETION, AND WILL PROHIBIT ANY FUTURE PARTICIPATION OF AN APPLICANT
IN THE PROGRAM. PAYMENT OF STATE COSTS SHALL BE MADE TO THE HAZARDOUS
WASTE REMEDIAL FUND ESTABLISHED PURSUANT TO SECTION NINETY-SEVEN-B OF
THE STATE FINANCE LAW.
S 3. Article 71 of the environmental conservation law is amended by
adding a new title 45 to read as follows:
TITLE 45
ENVIRONMENTAL COVENANTS
SECTION 71-4501. SHORT TITLE.
71-4503. DECLARATION OF POLICY AND STATEMENT OF PURPOSE.
71-4505. DEFINITIONS.
71-4507. NATURE OF RIGHTS; SUBORDINATION OF INTERESTS.
71-4509. CONTENTS OF ENVIRONMENTAL COVENANT.
71-4511. VALIDITY; EFFECT ON OTHER INSTRUMENTS.
71-4513. RELATIONSHIP TO OTHER LAND USE LAW.
71-4515. NOTICE.
71-4517. RECORDING.
71-4519. COORDINATION WITH LOCAL GOVERNMENTS.
71-4521. DURATION.
71-4523. AMENDMENT OR TERMINATION BY CONSENT.
71-4525. ENFORCEMENT OF ENVIRONMENTAL COVENANT.
71-4527. UNIFORMITY OF APPLICATION AND CONSTRUCTION.
71-4529. REGULATIONS.
71-4531. SEVERABILITY.
S 71-4501. SHORT TITLE.
THIS TITLE SHALL BE KNOWN AND MAY BE CITED AS THE "UNIFORM ENVIRON-
MENTAL COVENANTS ACT".
S 71-4503. DECLARATION OF POLICY AND STATEMENT OF PURPOSE.
THE LEGISLATURE HEREBY FINDS AND DECLARES THAT CONTAMINATED SITE REME-
DIAL PROGRAMS ARE AN IMPORTANT AND NECESSARY COMPONENT OF THE STATE'S
POLICY OF RESTORING AND REVITALIZING REAL PROPERTY LOCATED THROUGHOUT
NEW YORK STATE. THE LEGISLATURE FURTHER FINDS THAT WHEN AN ENVIRONMENTAL
REMEDIATION PROJECT LEAVES RESIDUAL CONTAMINATION AT LEVELS THAT HAVE
BEEN DETERMINED TO BE SAFE FOR A SPECIFIC USE, BUT NOT ALL USES, OR
INCLUDES ENGINEERED STRUCTURES THAT MUST BE MAINTAINED OR PROTECTED
AGAINST DAMAGE TO BE EFFECTIVE, IT IS NECESSARY TO PROVIDE AN EFFECTIVE
AND ENFORCEABLE MEANS OF ENSURING THE PERFORMANCE OF MAINTENANCE, MONI-
TORING OR OPERATION REQUIREMENTS, AND OF ENSURING THE POTENTIAL
RESTRICTION OF FUTURE USES OF THE LAND, INCLUDING RESTRICTIONS ON DRILL-
ING FOR OR PUMPING GROUNDWATER, FOR AS LONG AS ANY RESIDUAL CONTAM-
INATION REMAINS HAZARDOUS. THE LEGISLATURE DECLARES, THEREFORE, THAT IT
IS IN THE PUBLIC INTEREST TO CREATE LAND USE CONTROLS IN THE FORM OF
ENVIRONMENTAL COVENANTS BECAUSE SUCH ENVIRONMENTAL COVENANTS ARE NECES-
SARY FOR THE PROTECTION OF HUMAN HEALTH AND THE ENVIRONMENT AND TO
ACHIEVE THE REQUIREMENTS FOR REMEDIATION ESTABLISHED AT CONTAMINATED
SITES. IT IS THE INTENT OF THE LEGISLATURE THAT THE PROVISIONS OF THIS
SECTION SHALL NOT BE CONSTRUED AS LIMITING OR OTHERWISE AFFECTING ANY
AUTHORITY CONFERRED UPON THE DEPARTMENT BY ANY OTHER PROVISION OF LAW.
S 71-4505. DEFINITIONS.
A. 6063 4
WHEN USED IN THIS TITLE:
1. "ACTIVITY AND USE LIMITATIONS" MEANS RESTRICTIONS OR OBLIGATIONS
CREATED UNDER THIS TITLE WITH RESPECT TO REAL PROPERTY.
2. "AFFECTED LOCAL GOVERNMENT" MEANS EVERY MUNICIPALITY IN WHICH LAND
SUBJECT TO AN ENVIRONMENTAL COVENANT IS LOCATED.
3. "COMMON INTEREST COMMUNITY" MEANS A CONDOMINIUM, COOPERATIVE, OR
OTHER REAL PROPERTY ASSOCIATION OR ORGANIZATION WITH RESPECT TO WHICH A
PERSON, BY VIRTUE OF THE PERSON'S COMMON INTEREST, AS THAT TERM IS
DEFINED IN SECTION THREE HUNDRED THIRTY-NINE-E OF THE REAL PROPERTY LAW,
OR OWNERSHIP OF A UNIT, SHARE OR PARCEL OF REAL PROPERTY, IS OBLIGATED
TO PAY PROPERTY TAXES OR INSURANCE PREMIUMS, OR FOR MAINTENANCE, OR
IMPROVEMENT OF OTHER REAL PROPERTY DESCRIBED IN A RECORDED DECLARATION
OR COVENANT THAT CREATES THE COMMON INTEREST COMMUNITY.
4. "ENVIRONMENTAL COVENANT" MEANS A SERVITUDE RUNNING WITH THE LAND
ARISING UNDER AN ENVIRONMENTAL REMEDIAL PROGRAM THAT IMPOSES ACTIVITY
AND USE LIMITATIONS AS WELL AS MAINTENANCE, MONITORING OR OPERATION
REQUIREMENTS ASSOCIATED WITH THE ENVIRONMENTAL REMEDIAL PROGRAM.
5. "ENVIRONMENTAL REMEDIAL PROGRAM" MEANS A REMEDIAL PROGRAM CONDUCTED
AT REAL PROPERTY:
(A) UNDER A FEDERAL OR STATE PROGRAM GOVERNING ENVIRONMENTAL REMEDI-
ATION OF REAL PROPERTY, INCLUDING REMEDIAL PROGRAMS PURSUANT TO TITLES
THIRTEEN AND FOURTEEN OF ARTICLE TWENTY-SEVEN OF THIS CHAPTER, TITLE
FIVE OF ARTICLE FIFTY-SIX OF THIS CHAPTER AND ARTICLE TWELVE OF THE
NAVIGATION LAW;
(B) INCIDENT TO A DEPARTMENT-APPROVED CLOSURE OF A SOLID OR HAZARDOUS
WASTE MANAGEMENT UNIT;
(C) UNDER A CORRECTIVE ACTION PLAN PURSUANT TO TITLE NINE OF ARTICLE
TWENTY-SEVEN OF THIS CHAPTER; OR
(D) UNDER OTHER DEPARTMENT REMEDIAL PROGRAMS.
6. "HOLDER" MEANS THE GRANTEE OF AN ENVIRONMENTAL COVENANT AS SPECI-
FIED IN SUBDIVISION ONE OF SECTION 71-4507 OF THIS TITLE.
7. "PERSON" MEANS AN INDIVIDUAL, CORPORATION, BUSINESS TRUST, ESTATE,
TRUST, PARTNERSHIP, LIMITED LIABILITY COMPANY, ASSOCIATION, JOINT
VENTURE, PUBLIC CORPORATION, GOVERNMENT, GOVERNMENTAL SUBDIVISION, AGEN-
CY, OR INSTRUMENTALITY, OR ANY OTHER LEGAL OR COMMERCIAL ENTITY.
8. "RECORD", USED AS A NOUN, MEANS INFORMATION THAT IS INSCRIBED ON A
TANGIBLE MEDIUM OR THAT IS STORED IN AN ELECTRONIC OR OTHER MEDIUM AND
IS RETRIEVABLE IN PERCEIVABLE FORM.
S 71-4507. NATURE OF RIGHTS; SUBORDINATION OF INTERESTS.
1. THE DEPARTMENT SHALL BE A HOLDER AND MAY IDENTIFY ONE OR MORE ADDI-
TIONAL HOLDERS OR BENEFICIARIES. THE INTEREST OF A HOLDER IS AN INTEREST
IN REAL PROPERTY.
2. A RIGHT OF THE DEPARTMENT OR OTHER INTENDED BENEFICIARY UNDER THIS
TITLE OR UNDER AN ENVIRONMENTAL COVENANT, OTHER THAN A RIGHT AS A HOLD-
ER, IS NOT AN INTEREST IN REAL PROPERTY.
3. THE DEPARTMENT IS BOUND BY ANY OBLIGATION IT ASSUMES IN AN ENVIRON-
MENTAL COVENANT, BUT THE DEPARTMENT DOES NOT ASSUME OBLIGATIONS MERELY
BY SIGNING AN ENVIRONMENTAL COVENANT. ANY OTHER PERSON THAT SIGNS AN
ENVIRONMENTAL COVENANT IS BOUND BY THE OBLIGATIONS THE PERSON ASSUMES IN
THE COVENANT, BUT SIGNING THE COVENANT DOES NOT CHANGE OBLIGATIONS,
RIGHTS, OR PROTECTIONS GRANTED OR IMPOSED UNDER LAW OTHER THAN THIS
TITLE EXCEPT AS PROVIDED IN THE COVENANT.
4. THE FOLLOWING RULES APPLY TO INTERESTS IN REAL PROPERTY IN EXIST-
ENCE AT THE TIME AN ENVIRONMENTAL COVENANT IS CREATED OR AMENDED:
A. 6063 5
(A) AN INTEREST THAT HAS PRIORITY UNDER OTHER LAW IS NOT AFFECTED BY
AN ENVIRONMENTAL COVENANT UNLESS THE PERSON THAT OWNS THE INTEREST
SUBORDINATES THAT INTEREST TO THE COVENANT.
(B) THIS TITLE DOES NOT REQUIRE A PERSON THAT OWNS A PRIOR INTEREST TO
SUBORDINATE THAT INTEREST TO AN ENVIRONMENTAL COVENANT OR TO AGREE TO BE
BOUND BY THE COVENANT.
(C) A SUBORDINATION AGREEMENT MAY BE CONTAINED IN AN ENVIRONMENTAL
COVENANT COVERING REAL PROPERTY OR IN A SEPARATE RECORD. IF THE ENVIRON-
MENTAL COVENANT COVERS COMMONLY OWNED PROPERTY IN A COMMON INTEREST
COMMUNITY, THE SUBORDINATE AGREEMENT OR RECORD MAY BE SIGNED BY ANY
PERSON AUTHORIZED BY LAW, A RECORDED INSTRUMENT, OR THE GOVERNING BOARD
OF THE OWNERS' ASSOCIATION TO BIND THE COMMON INTEREST COMMUNITY.
(D) AN AGREEMENT BY A PERSON TO SUBORDINATE A PRIOR INTEREST TO AN
ENVIRONMENTAL COVENANT AFFECTS THE PRIORITY OF THAT PERSON'S INTEREST
BUT DOES NOT BY ITSELF IMPOSE ANY AFFIRMATIVE OBLIGATION ON THE PERSON
WITH RESPECT TO THE ENVIRONMENTAL COVENANT.
5. THE DEPARTMENT MAY REQUIRE THAT A SUBORDINATION AGREEMENT BE
OBTAINED AS A CONDITION OF ACCEPTING AN ENVIRONMENTAL COVENANT TO
PROTECT PUBLIC HEALTH AND THE ENVIRONMENT.
S 71-4509. CONTENTS OF ENVIRONMENTAL COVENANT.
1. AN ENVIRONMENTAL COVENANT MUST BE ON A FORM PRESCRIBED BY THE
DEPARTMENT AND:
(A) BE GRANTED BY THE TITLE OWNERS OF THE RELEVANT REAL ESTATE ONLY BY
AN INSTRUMENT THAT COMPLIES WITH THE REQUIREMENTS OF SECTION 5-703 OF
THE GENERAL OBLIGATIONS LAW AND IS SIGNED AND ACKNOWLEDGED IN THE MANNER
OF A DEED TO BE RECORDED;
(B) STATE THAT THE INSTRUMENT IS AN ENVIRONMENTAL COVENANT EXECUTED
PURSUANT TO THIS TITLE;
(C) DESCRIBE THE PROPERTY ENCUMBERED BY THE ENVIRONMENTAL COVENANT BY
ADEQUATE LEGAL DESCRIPTION OR BY REFERENCE TO A RECORDED MAP SHOWING ITS
BOUNDARIES AND BEARING THE SEAL AND SIGNATURE OF A LICENSED LAND
SURVEYOR OR, IF THE COVENANT ENCUMBERS THE ENTIRE PROPERTY DESCRIBED IN
A DEED OF RECORD, THE COVENANT MAY INCORPORATE BY REFERENCE THE
DESCRIPTION IN SUCH DEED, OTHERWISE IT SHALL REFER TO THE LIBER AND PAGE
OF THE DEED OR DEEDS OF THE RECORD OWNER OR OWNERS OF THE REAL PROPERTY
BURDENED BY THE ENVIRONMENTAL COVENANT;
(D) DESCRIBE THE ACTIVITY AND USE LIMITATIONS ON THE REAL PROPERTY;
(E) INCLUDE ANY ENGINEERING CONTROLS AND/OR MAINTENANCE REQUIRED FOR
THE ENVIRONMENTAL COVENANT OR PROVIDE A REFERENCE TO PUBLICLY AVAILABLE
DOCUMENTS CONTAINING SUCH INFORMATION;
(F) DESCRIBE THE REQUIREMENTS FOR NOTICE FOLLOWING TRANSFER OF A SPEC-
IFIED INTEREST IN, OR CONCERNING PROPOSED CHANGES IN USE OF, APPLICA-
TIONS FOR BUILDING PERMITS FOR, OR PROPOSALS FOR ANY SITE WORK AFFECTING
THE CONTAMINATION ON THE PROPERTY SUBJECT TO THE COVENANT;
(G) DESCRIBE THE REQUIREMENTS FOR PERIODIC REPORTING DESCRIBING
COMPLIANCE WITH THE COVENANT;
(H) DESCRIBE THE RIGHTS OF ACCESS TO THE PROPERTY GRANTED IN
CONNECTION WITH IMPLEMENTATION OR ENFORCEMENT OF THE COVENANT, INCLUDING
BUT NOT LIMITED TO THE RIGHT OF AGENTS, EMPLOYEES, OR OTHER REPRESEN-
TATIVES OF THE STATE TO ENTER AND INSPECT THE PROPERTY BURDENED BY AN
ENVIRONMENTAL COVENANT IN A REASONABLE MANNER AND AT REASONABLE TIMES TO
ASSURE COMPLIANCE WITH THE RESTRICTION;
(I) IDENTIFY THE DEPARTMENT AS THE HOLDER AND, IF APPROPRIATE, THE
FEDERAL GOVERNMENT OR OTHER APPROPRIATE PARTY AS AN ADDITIONAL HOLDER OR
INTENDED THIRD PARTY BENEFICIARY. IF THERE IS A HOLDER IN ADDITION TO
A. 6063 6
THE DEPARTMENT, THE DEPARTMENT MUST APPROVE THE HOLDER, AND THE HOLDER
MUST AGREE TO THE TERMS OF THE COVENANT;
(J) INCLUDE AN ACKNOWLEDGMENT BY THE DEPARTMENT OF ITS ACCEPTANCE OF
THE ENVIRONMENTAL COVENANT;
(K) BE SIGNED BY EVERY HOLDER AND, UNLESS WAIVED BY THE DEPARTMENT,
EVERY OWNER OF THE FEE SIMPLE OF THE REAL PROPERTY SUBJECT TO THE COVEN-
ANT;
(L) IDENTIFY THE NAME AND LOCATION OF ANY ADMINISTRATIVE RECORD FOR
THE ENVIRONMENTAL REMEDIAL PROGRAM REFLECTED IN THE ENVIRONMENTAL COVEN-
ANT;
(M) INCLUDE AN AGREEMENT TO INCORPORATE, EITHER IN FULL OR BY REFER-
ENCE, THE ENVIRONMENTAL COVENANT IN ANY LEASES, LICENSES, OR OTHER
INSTRUMENTS GRANTING A RIGHT TO USE THE PROPERTY THAT MAY BE AFFECTED BY
SUCH COVENANT; AND
(N) THE DEPARTMENT MAY REQUIRE THAT INFORMATION DELINEATED IN PARA-
GRAPHS (D), (E), (F), (G) AND (H) OF THIS SUBDIVISION BE ENUMERATED IN A
SITE MANAGEMENT PLAN IN LIEU OF BEING SET FORTH IN THE ENVIRONMENTAL
COVENANT.
2. IN ADDITION TO THE INFORMATION REQUIRED BY SUBDIVISION ONE OF THIS
SECTION, AN ENVIRONMENTAL COVENANT MAY CONTAIN OTHER INFORMATION,
RESTRICTIONS, AND REQUIREMENTS AGREED TO BY THE PERSONS WHO SIGNED IT,
INCLUDING ANY:
(A) LIMITATION ON AMENDMENT OR TERMINATION OF THE COVENANT IN ADDITION
TO THOSE CONTAINED IN SECTIONS 71-4521 AND 71-4523 OF THIS TITLE; AND
(B) RIGHTS OF THE HOLDER IN ADDITION TO ITS RIGHT TO ENFORCE THE
COVENANT PURSUANT TO SECTION 71-4525 OF THIS TITLE.
3. IN ADDITION TO OTHER CONDITIONS FOR ITS APPROVAL OF AN ENVIRON-
MENTAL COVENANT, THE DEPARTMENT MAY REQUIRE THOSE PERSONS SPECIFIED BY
THE DEPARTMENT WHO HAVE INTERESTS IN THE REAL PROPERTY TO SIGN THE
COVENANT.
4. THE TITLE OWNERS SHALL FURNISH TO THE DEPARTMENT ABSTRACTS OF TITLE
AND OTHER DOCUMENTS SUFFICIENT TO ENABLE THE DEPARTMENT TO DETERMINE
THAT THE ENVIRONMENTAL COVENANTS SHALL BE AN EFFECTIVE AND ENFORCEABLE
MEANS OF ENSURING:
(A) THE PERFORMANCE OF MAINTENANCE, MONITORING AND OPERATING REQUIRE-
MENTS; AND
(B) ACTIVITIES AND USE LIMITATIONS.
5. UNTIL SUCH TIME AS THE ENVIRONMENTAL COVENANT IS EXTINGUISHED, THE
PROPERTY DEED AND ALL SUBSEQUENT INSTRUMENTS OF CONVEYANCE RELATING TO
THE SUBJECT PROPERTY SHALL STATE IN AT LEAST FIFTEEN-POINT BOLD-FACED
TYPE: "THIS PROPERTY IS SUBJECT TO AN ENVIRONMENTAL COVENANT HELD BY
THE NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION PURSUANT TO
TITLE 45 OF ARTICLE 71 OF THE ENVIRONMENTAL CONSERVATION LAW." THE PROP-
ERTY DEED AND ALL SUBSEQUENT INSTRUMENTS OF CONVEYANCE RELATING TO THE
PROPERTY ENCUMBERED BY THE COVENANT SHALL REFERENCE, BY BOOK AND PAGE
NUMBER, THE ENVIRONMENTAL COVENANT. SUCH DEED AND INSTRUMENT SHALL ALSO
SPECIFY THAT THE ELIGIBLE PROPERTY IS SUBJECT TO THE RESTRICTIONS
CONTAINED IN SUCH COVENANT. AN INSTRUMENT FOR THE PURPOSE OF CREATING,
CONVEYING, MODIFYING, OR TERMINATING AN ENVIRONMENTAL COVENANT SHALL NOT
BE EFFECTIVE UNLESS RECORDED.
S 71-4511. VALIDITY; EFFECT ON OTHER INSTRUMENTS.
1. AN ENVIRONMENTAL COVENANT THAT COMPLIES WITH THIS TITLE RUNS WITH
THE LAND.
2. AN ENVIRONMENTAL COVENANT THAT IS OTHERWISE EFFECTIVE IS VALID AND
ENFORCEABLE EVEN IF:
(A) IT IS NOT APPURTENANT TO AN INTEREST IN REAL PROPERTY;
A. 6063 7
(B) IT IS NOT OF A CHARACTER THAT HAS BEEN RECOGNIZED TRADITIONALLY AT
COMMON LAW;
(C) IT IMPOSES A NEGATIVE BURDEN;
(D) IT IMPOSES AN AFFIRMATIVE OBLIGATION ON A PERSON HAVING AN INTER-
EST IN THE REAL PROPERTY OR ON THE HOLDER;
(E) THE BENEFIT OR BURDEN DOES NOT TOUCH OR CONCERN REAL PROPERTY; OR
(F) THERE IS NO PRIVITY OF ESTATE OR CONTRACT.
3. AN INSTRUMENT THAT CREATES RESTRICTIONS OR OBLIGATIONS WITH RESPECT
TO REAL PROPERTY THAT WOULD QUALIFY AS ACTIVITY AND USE LIMITATIONS
EXCEPT FOR THE FACT THAT THE INSTRUMENT WAS RECORDED BEFORE THE EFFEC-
TIVE DATE OF THIS TITLE IS NOT INVALID OR UNENFORCEABLE BECAUSE OF ANY
OF THE LIMITATIONS ON ENFORCEMENT OF INTERESTS DESCRIBED IN SUBDIVISION
TWO OF THIS SECTION OR BECAUSE IT WAS IDENTIFIED AS AN EASEMENT, SERVI-
TUDE, DEED RESTRICTION, OR OTHER INTEREST. THIS TITLE DOES NOT APPLY IN
ANY OTHER RESPECT TO SUCH AN INSTRUMENT.
4. THIS TITLE DOES NOT INVALIDATE OR RENDER UNENFORCEABLE ANY INTER-
EST, WHETHER DESIGNATED AS AN ENVIRONMENTAL COVENANT OR OTHER INTEREST,
THAT IS OTHERWISE ENFORCEABLE UNDER THE LAWS OF THIS STATE.
5. THIS TITLE SHALL NOT AFFECT ANY INTERESTS OR RIGHTS IN REAL PROPER-
TY WHICH ARE NOT ENVIRONMENTAL COVENANTS, AND SHALL NOT AFFECT THE
RIGHTS OF OWNERS TO CONVEY ANY INTERESTS IN REAL PROPERTY WHICH THEY
COULD NOW CREATE UNDER EXISTING LAW WITHOUT REFERENCE TO THE TERMS OF
THIS TITLE. NOTHING IN THIS TITLE SHALL DIMINISH THE POWERS GRANTED BY
ANY OTHER LAW TO ACQUIRE INTERESTS OR RIGHTS IN REAL PROPERTY BY
PURCHASE, GIFT, EMINENT DOMAIN, OR OTHERWISE AND TO USE THE SAME FOR
PUBLIC PURPOSES.
S 71-4513. RELATIONSHIP TO OTHER LAND USE LAW.
THIS TITLE DOES NOT AUTHORIZE A USE OF REAL PROPERTY THAT IS OTHERWISE
PROHIBITED BY ZONING, BY LAW OTHER THAN THIS TITLE REGULATING USE OF
REAL PROPERTY, OR BY A RECORDED INSTRUMENT THAT HAS PRIORITY OVER THE
ENVIRONMENTAL COVENANT. AN ENVIRONMENTAL COVENANT MAY PROHIBIT OR
RESTRICT USES OF REAL PROPERTY WHICH ARE AUTHORIZED BY ZONING OR BY LAW
OTHER THAN THIS TITLE.
S 71-4515. NOTICE.
1. A COPY OF AN ENVIRONMENTAL COVENANT, AND ANY AMENDMENT OR TERMI-
NATION THEREOF, SHALL BE PROVIDED IN THE MANNER REQUIRED BY THE DEPART-
MENT TO:
(A) EACH PERSON THAT SIGNED THE COVENANT;
(B) EACH PERSON HOLDING A RECORDED INTEREST IN THE REAL PROPERTY
SUBJECT TO THE COVENANT;
(C) EACH PERSON IN POSSESSION OF THE REAL PROPERTY SUBJECT TO THE
COVENANT;
(D) EACH AFFECTED LOCAL GOVERNMENT; AND
(E) ANY OTHER PERSON THE DEPARTMENT REQUIRES.
2. THE VALIDITY OF A COVENANT IS NOT AFFECTED BY FAILURE TO PROVIDE A
COPY OF THE COVENANT AS REQUIRED UNDER THIS SECTION.
3. THE DEPARTMENT SHALL INCLUDE A COPY OF EACH ENVIRONMENTAL COVENANT
IN THE DATABASE CREATED PURSUANT TO SECTION 27-1415 OF THIS CHAPTER AND
MAKE SUCH DATABASE READILY SEARCHABLE.
S 71-4517. RECORDING.
1. AN ENVIRONMENTAL COVENANT AND ANY AMENDMENT OR TERMINATION OF THE
COVENANT MUST BE RECORDED IN THE OFFICE OF THE RECORDING OFFICER IN THE
MANNER PRESCRIBED BY ARTICLE NINE OF THE REAL PROPERTY LAW IN EVERY
COUNTY IN WHICH ANY PORTION OF THE REAL PROPERTY SUBJECT TO THE COVENANT
IS LOCATED. FOR PURPOSES OF INDEXING, A HOLDER SHALL BE TREATED AS A
GRANTEE.
A. 6063 8
2. EXCEPT AS OTHERWISE PROVIDED IN SUBDIVISION TWO OF SECTION 71-4521
OF THIS TITLE, AN ENVIRONMENTAL COVENANT IS SUBJECT TO THE LAWS OF THIS
STATE GOVERNING RECORDING AND PRIORITY OF INTERESTS IN REAL PROPERTY.
S 71-4519. COORDINATION WITH LOCAL GOVERNMENTS.
WHENEVER AN AFFECTED LOCAL GOVERNMENT RECEIVES AN APPLICATION FOR A
BUILDING PERMIT OR ANY OTHER APPLICATION AFFECTING LAND USE OR DEVELOP-
MENT OF LAND THAT IS SUBJECT TO AN ENVIRONMENTAL COVENANT AND THAT MAY
RELATE TO OR IMPACT SUCH COVENANT, THE AFFECTED LOCAL GOVERNMENT SHALL
NOTIFY THE DEPARTMENT AND REFER SUCH APPLICATION TO THE DEPARTMENT. THE
DEPARTMENT SHALL EVALUATE WHETHER THE APPLICATION IS CONSISTENT WITH THE
ENVIRONMENTAL COVENANT AND SHALL NOTIFY THE AFFECTED LOCAL GOVERNMENT OF
ITS DETERMINATION IN A TIMELY FASHION, CONSIDERING THE TIME FRAME FOR
THE LOCAL GOVERNMENT'S REVIEW OF THE APPLICATION. THE AFFECTED LOCAL
GOVERNMENT SHALL NOT APPROVE THE APPLICATION UNTIL IT RECEIVES APPROVAL
FROM THE DEPARTMENT.
S 71-4521. DURATION.
1. AN ENVIRONMENTAL COVENANT IS PERPETUAL UNLESS IT IS:
(A) BY ITS TERMS LIMITED TO A SPECIFIC DURATION OR TERMINATED BY THE
OCCURRENCE OF A SPECIFIC EVENT; OR
(B) EXTINGUISHED OR AMENDED BY A RELEASE OR AMENDMENT OF THE ENVIRON-
MENTAL COVENANT EXECUTED BY THE DEPARTMENT AND FILED WITH THE OFFICE OF
THE RECORDING OFFICER FOR THE COUNTY OR COUNTIES WHERE THE LAND IS SITU-
ATED IN THE MANNER PRESCRIBED BY ARTICLE NINE OF THE REAL PROPERTY LAW.
2. EXCEPT AS OTHERWISE PROVIDED IN SUBDIVISION ONE OF THIS SECTION, AN
ENVIRONMENTAL COVENANT MAY NOT BE EXTINGUISHED, LIMITED, OR IMPAIRED
THROUGH FORECLOSURE OF A LIEN, ISSUANCE OF A TAX DEED, FORECLOSURE OF A
TAX LIEN, OR APPLICATION OF THE DOCTRINE OF ADVERSE POSSESSION,
PRESCRIPTION, EMINENT DOMAIN, ABANDONMENT, WAIVER, LACK OF ENFORCEMENT,
OR ACQUIESCENCE, OR A SIMILAR DOCTRINE.
S 71-4523. AMENDMENT OR TERMINATION BY CONSENT.
1. AN ENVIRONMENTAL COVENANT MAY BE AMENDED OR TERMINATED BY CONSENT
ONLY IF THE AMENDMENT OR TERMINATION IS SIGNED IN THE MANNER PRESCRIBED
BY SECTION 71-4509 OF THIS TITLE BY:
(A) THE DEPARTMENT; AND
(B) UNLESS WAIVED BY THE DEPARTMENT, THE CURRENT OWNER OF THE FEE
SIMPLE OF THE REAL PROPERTY SUBJECT TO THE COVENANT.
2. IF AN INTEREST IN REAL PROPERTY IS SUBJECT TO AN ENVIRONMENTAL
COVENANT, THE INTEREST IS NOT AFFECTED BY AN AMENDMENT OF THE COVENANT
UNLESS THE CURRENT OWNER OF THE INTEREST CONSENTS TO THE AMENDMENT OR
HAS WAIVED IN A WRITING, SIGNED IN THE MANNER PRESCRIBED BY SECTION
71-4509 OF THIS TITLE, THE RIGHT TO CONSENT TO AMENDMENTS.
S 71-4525. ENFORCEMENT OF ENVIRONMENTAL COVENANT.
1. A CIVIL ACTION FOR INJUNCTIVE OR OTHER EQUITABLE RELIEF FOR
VIOLATION OF AN ENVIRONMENTAL COVENANT MAY BE MAINTAINED BY:
(A) A PARTY TO THE COVENANT;
(B) THE DEPARTMENT;
(C) ANY AFFECTED LOCAL GOVERNMENT;
(D) ANY PERSON TO WHOM THE COVENANT EXPRESSLY GRANTS POWER TO ENFORCE,
OR IS IDENTIFIED IN THE COVENANT AS AN INTENDED BENEFICIARY; OR
(E) A PERSON WHOSE INTEREST IN THE REAL PROPERTY OR WHOSE COLLATERAL
OR LIABILITY MAY BE AFFECTED BY THE ALLEGED VIOLATION OF THE COVENANT.
2. THE ENVIRONMENTAL COVENANT IS ENFORCEABLE AGAINST THE OWNER OF THE
BURDENED PROPERTY, ANY LESSEES, AND ANY PERSON USING THE LAND.
3. A PERSON IS NOT RESPONSIBLE FOR OR SUBJECT TO LIABILITY FOR ENVI-
RONMENTAL REMEDIATION SOLELY BECAUSE IT HAS THE RIGHT TO ENFORCE AN
ENVIRONMENTAL COVENANT.
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4. ENFORCEMENT SHALL NOT BE DEFEATED BECAUSE OF ANY SUBSEQUENT ADVERSE
POSSESSION, LACHES, ESTOPPEL, OR WAIVER. NO GENERAL LAW OF THE STATE
WHICH OPERATES TO DEFEAT THE ENFORCEMENT OF ANY INTEREST IN REAL PROPER-
TY SHALL OPERATE TO DEFEAT THE ENFORCEMENT OF ANY ENVIRONMENTAL COVENANT
UNLESS SUCH GENERAL LAW EXPRESSLY STATES THE INTENT TO DEFEAT THE
ENFORCEMENT OF SUCH COVENANT OR PROVIDES FOR THE EXERCISE OF THE POWER
OF EMINENT DOMAIN.
5. FOR ANY PERSON WHO INTENTIONALLY VIOLATES AN ENVIRONMENTAL COVENANT
THE DEPARTMENT MAY REVOKE THE CERTIFICATE OF COMPLETION PROVIDED BY
SECTION 27-1419 OF THIS CHAPTER AS TO THE RELEVANT REAL ESTATE.
S 71-4527. UNIFORMITY OF APPLICATION AND CONSTRUCTION.
IN APPLYING AND CONSTRUING THIS TITLE, CONSIDERATION MUST BE GIVEN TO
THE NEED TO PROMOTE UNIFORMITY OF THE LAW WITH RESPECT TO ITS SUBJECT
MATTER AMONG STATES THAT ENACT IT.
S 71-4529. REGULATIONS.
THE DEPARTMENT IS AUTHORIZED TO PROMULGATE RULES AND REGULATIONS
NECESSARY AND APPROPRIATE TO CARRY OUT THE PURPOSES OF THIS TITLE.
S 71-4531. SEVERABILITY.
THE PROVISIONS OF THIS TITLE SHALL BE SEVERABLE, AND IF ANY CLAUSE,
SENTENCE, PARAGRAPH, SUBDIVISION, OR PART OF THIS TITLE SHALL BE
ADJUDGED BY ANY COURT OF COMPETENT JURISDICTION TO BE INVALID, SUCH
JUDGMENT SHALL NOT AFFECT, IMPAIR OR INVALIDATE THE REMAINDER THEREOF,
BUT SHALL BE CONFINED IN ITS OPERATION TO THE CLAUSE, SENTENCE, PARA-
GRAPH, SUBDIVISION, OR PART THEREOF DIRECTLY INVOLVED IN THE CONTROVERSY
IN WHICH SUCH JUDGMENT SHALL HAVE BEEN RENDERED; PROVIDED THAT IF AN
ENVIRONMENTAL COVENANT CREATED PURSUANT TO THIS TITLE IS DETERMINED BY
ANY COURT OF COMPETENT JURISDICTION TO BE LAND OR WATER OR AN INTEREST
IN LAND OR WATER SUBJECT TO THE PROVISIONS OF ARTICLE FOURTEEN OF THE
CONSTITUTION, THEN THE AUTHORITY OF THE STATE TO HOLD OR ACQUIRE SUCH
COVENANT AND THE CONVEYANCE TO THE STATE OF SUCH COVENANT SHALL BE VOID
AB INITIO.
S 4. Subdivision (b) of section 27-1318 of the environmental conserva-
tion law, as amended by section 2 of part E of chapter 577 of the laws
of 2004, is amended to read as follows:
(b) Within sixty days of commencement of the remedial design, the
owner of an inactive hazardous waste disposal site, and/or any person
responsible for implementing a remedial program at such site, where
institutional or engineering controls are employed pursuant to this
title, shall execute an environmental easement pursuant to title thir-
ty-six of article seventy-one of this chapter OR AN ENVIRONMENTAL COVEN-
ANT PURSUANT TO TITLE FORTY-FIVE OF ARTICLE SEVENTY-ONE OF THIS CHAPTER.
S 5. Paragraph (d) of subdivision 7 of section 27-1415 of the environ-
mental conservation law, as added by section 1 of part A of chapter 1 of
the laws of 2003, is amended to read as follows:
(d) The commissioner shall create, update, and maintain a database
system for public information purposes and to monitor and track all
brownfield sites subject to this title. Data incorporated into such
system for each site for which information has been collected pursuant
to this title shall include, but shall not be limited to, a site summa-
ry, name of site owner, location, status of site remedial activity,
[and, if one has been created pursuant to title thirty-six of article
seventy-one of this chapter, a copy of the environmental easement,] and
a contact number to obtain additional information. THE DATABASE SHALL
ALSO INCLUDE FOR EACH SITE A COPY OF THE ENVIRONMENTAL EASEMENT, IF ONE
HAS BEEN CREATED PURSUANT TO TITLE THIRTY-SIX OF ARTICLE SEVENTY-ONE OF
THIS CHAPTER, OR A COPY OF THE ENVIRONMENTAL COVENANT, IF ONE HAS BEEN
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CREATED PURSUANT TO TITLE FORTY-FIVE OF ARTICLE SEVENTY-ONE OF THIS
CHAPTER. Sites shall be added to such system upon the execution of a
brownfield site cleanup agreement [pursuant to section 27-1409 of this
title]. If and when an environmental easement OR COVENANT is modified or
extinguished, the copy of the environmental easement OR COVENANT
contained in the database shall be updated accordingly. Such database
shall be in such a format that it can be readily searched by affected
local governments and the public for purposes including but not limited
to determining whether an environmental easement OR COVENANT has been
recorded for a site pursuant to title thirty-six OR FORTY-FIVE of arti-
cle seventy-one of this chapter. The database shall be available elec-
tronically. Information from this database shall be incorporated into
the geographic information system created and maintained by the depart-
ment pursuant to section 3-0315 of this chapter.
S 6. Paragraph (e) of subdivision 2 of section 27-1419 of the environ-
mental conservation law, as added by section 1 of part A of chapter 1 of
the laws of 2003, is amended to read as follows:
(e) a certification that any use restrictions, institutional controls,
engineering controls and/or any operation and maintenance requirements
applicable to the site are contained in an environmental easement
created and recorded pursuant to title thirty-six of article seventy-one
of this chapter OR AN ENVIRONMENTAL COVENANT CREATED AND RECORDED PURSU-
ANT TO TITLE FORTY-FIVE OF SUCH ARTICLE and that any affected local
governments, as defined in title thirty-six of SUCH article [seventy-one
of this chapter] have been notified that such easement OR COVENANT has
been recorded;
S 7. Paragraph (g) of subdivision 2 of section 56-0503 of the environ-
mental conservation law, as amended by section 4 of part D of chapter 1
of the laws of 2003, is amended to read as follows:
(g) An agreement by the municipality that it shall put into place any
engineering and/or institutional controls (including environmental ease-
ments pursuant to title thirty-six of article seventy-one of this chap-
ter OR ENVIRONMENTAL COVENANTS PURSUANT TO TITLE FORTY-FIVE OF SUCH
ARTICLE) that the department may deem necessary to allow the contem-
plated use to proceed, that such engineering and/or institutional
controls shall be binding on such municipality, any successor in title,
and any lessees and that any successors in title and any lessees cannot
challenge state enforcement of such controls;
S 8. Paragraph 5 of subdivision (a) of section 21 of the tax law, as
amended by section 1 of part H of chapter 577 of the laws of 2004, is
amended to read as follows:
(5) Applicable percentage. For purposes of paragraphs two, three and
four of this subdivision, the applicable percentage shall be twelve
percent [in the case of credits claimed under article nine, nine-A,
thirty-two or thirty-three of this chapter, and ten percent in the case
of credits claimed under article twenty-two of this chapter,] except
that where at least fifty percent of the area of the qualified site
relating to the credit provided for in this section is located in an
environmental zone as defined in paragraph six of subdivision (b) of
this section, the applicable percentage shall be increased by an addi-
tional eight percent. Provided, however, as afforded in section 27-1419
of the environmental conservation law, if the certificate of completion
indicates that the qualified site has been remediated to Track 1 as that
term is described in subdivision four of section 27-1415 of the environ-
mental conservation law, the applicable percentage set forth in the
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first sentence of this paragraph shall be increased by an additional two
percent.
S 9. Subparagraph (A) of paragraph 3-a of subdivision (a) of section
21 of the tax law, as added by chapter 390 of the laws of 2008, is
amended to read as follows:
(A) Notwithstanding any other provision of law to the contrary, the
tangible property credit component available for any qualified site
pursuant to paragraph three of this subdivision shall not exceed thir-
ty-five million dollars or three times THE SUM OF the costs included in
the calculation of the site preparation credit component and the on-site
groundwater remediation credit component under paragraphs two and four,
respectively, of this subdivision, AND THE COSTS THAT WOULD HAVE BEEN
INCLUDED IN THE CALCULATION OF SUCH COMPONENTS IF NOT TREATED AS AN
EXPENSE AND DEDUCTED PURSUANT TO SECTION 198 OF THE INTERNAL REVENUE
CODE, whichever is less; provided, however, that: (1) in the case of a
qualified site to be used primarily for manufacturing activities, the
tangible property credit component available for any qualified site
pursuant to paragraph three of this subdivision shall not exceed
[forty-five] ONE HUNDRED FIFTY million dollars or [six] TWENTY times THE
SUM OF the costs included in the calculation of the site preparation
credit component and the on-site groundwater remediation credit compo-
nent under paragraphs two and four, respectively, of this subdivision,
AND THE COSTS THAT WOULD HAVE BEEN INCLUDED IN THE CALCULATION OF SUCH
COMPONENTS IF NOT TREATED AS AN EXPENSE AND DEDUCTED PURSUANT TO SECTION
198 OF THE INTERNAL REVENUE CODE, whichever is less; and (2) the
provisions of this paragraph shall not apply to any qualified site for
which the department of environmental conservation has issued a notice
to the taxpayer before June twenty-third, two thousand eight that its
request for participation has been accepted under subdivision six of
section 27-1407 of the environmental conservation law.
S 10. Paragraph 6 of subdivision (b) of section 21 of the tax law, as
amended by section 1 of part H of chapter 577 of the laws of 2004,
subparagraph (B) and the closing paragraph as amended by section 1 of
part G of chapter 62 of the laws of 2006, is amended to read as follows:
(6) Environmental zones (EN-Zones). An "environmental zone" shall mean
an area designated as such by the commissioner of economic development.
Such areas so designated are areas which are census tracts and block
numbering areas which, as of the [two thousand] MOST RECENT census,
satisfy either of the following criteria:
(A) areas that have both:
(i) a poverty rate of at least twenty percent for the year to which
the data relate; and
(ii) an unemployment rate of at least one and one-quarter times the
statewide unemployment rate for the year to which the data relate, or;
(B) areas that have a poverty rate of at least two times the poverty
rate for the county in which the areas are located for the year to which
the data relate [provided, however, that a qualified site shall only be
deemed to be located in an environmental zone under this subparagraph
(B) if such site was the subject of a brownfield site cleanup agreement
pursuant to section 27-1409 of the environmental conservation law that
was entered into prior to September first, two thousand ten].
Such designation shall be made and a list of all such environmental
zones shall be established by the commissioner of economic development
no later than December thirty-first, two thousand [four provided, howev-
er, that a qualified site shall only be deemed to be located in an envi-
ronmental zone under subparagraph (B) of this paragraph if such site was
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the subject of a brownfield site cleanup agreement pursuant to section
27-1409 of the environmental conservation law that was entered into
prior to September first, two thousand ten] TWELVE.
S 11. Paragraph 5 of subdivision (a) of section 22 of the tax law, as
amended by section 4 of part H of chapter 577 of the laws of 2004,
subparagraph (B) and the closing paragraph as amended by section 2 of
part G of chapter 62 of the laws of 2006, is amended to read as follows:
(5) Environmental zones (EN-Zones). An "environmental zone" shall mean
an area designated as such by the commissioner of economic development.
Such areas so designated are areas which are census tracts and block
numbering areas which, as of the [two thousand] MOST RECENT census,
satisfy either of the following criteria:
(A) areas that have both:
(i) a poverty rate of at least twenty percent for the year to which
the data relate;
(ii) an unemployment rate of at least one and one-quarter times the
statewide unemployment rate for the year to which the data relate, or;
(B) areas that have a poverty rate of at least two times the poverty
rate for the county in which the areas are located for the year to which
the data relate[, provided, however, that a qualified site shall only be
deemed to be located in an environmental zone under this subparagraph
(B) if such site was the subject of a brownfield site cleanup agreement
pursuant to section 27-1409 of the environmental conservation law that
was entered into prior to September first, two thousand ten].
Such designation shall be made and a list of all such environmental
zones shall be established by the commissioner of economic development
no later than December thirty-first, two thousand [four provided, howev-
er, that a qualified site shall only be deemed to be located in an envi-
ronmental zone under subparagraph (B) of this paragraph if such site was
the subject of a brownfield site cleanup agreement pursuant to section
27-1409 of the environmental conservation law that was entered into
prior to September first, two thousand ten] TWELVE.
S 12. Subdivision (a) of section 23 of the tax law, as amended by
section 10 of part H of chapter 577 of the laws of 2004, is amended to
read as follows:
(a) Allowance of credit. General. A taxpayer subject to tax under
article nine, nine-A, twenty-two, thirty-two or thirty-three of this
chapter shall be allowed a credit against such tax, pursuant to the
provisions referenced in subdivision (e) of this section. The amount of
such credit shall be equal to the lesser of [thirty] NINETY thousand
dollars or fifty percent of the premiums paid on or after the date of
the brownfield site cleanup agreement executed by the taxpayer and the
department of environmental conservation pursuant to section 27-1409 of
the environmental conservation law by the taxpayer for environmental
remediation insurance issued with respect to a qualified site.
S 13. Section 31 of part H of chapter 1 of the laws of 2003 amending
the tax law relating to brownfield redevelopment tax credits, is
REPEALED.
S 14. Severability. If any clause, sentence, paragraph, subdivision,
section or part of this act shall be adjudged by any court of competent
jurisdiction to be invalid, such judgment shall not affect, impair or
invalidate the remainder thereof, but shall be confined in its operation
to the clause, sentence, paragraph, subdivision, section or part thereof
directly involved in the controversy in which such judgment shall have
been rendered. It is hereby declared to be the intent of the legislature
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that this act would have been enacted even if such invalid provisions
had not been included herein.
S 15. This act shall take effect immediately and shall apply to a
qualified site for which the commissioner of environmental conservation
has issued a notice to the taxpayer or other applicant after July 1,
2013 that its request for participation has been accepted under subdivi-
sion 6 of section 27-1407 of the environmental conservation law.