Relates to eligibility for participation in the brownfield cleanup program; repealer
download bill text pdf| Date of Action |
Assembly Actions -
Lowercase Senate Actions - UPPERCASE |
|---|---|
| Jun 14, 2010 |
referred to environmental conservation |
S T A T E O F N E W Y O R K
________________________________________________________________________
11435
I N A S S E M B L Y
June 14, 2010
___________
Introduced by COMMITTEE ON RULES -- (at request of M. of A. Sweeney) --
(at request of the Department of Environmental Conservation) -- read
once and referred to the Committee on Environmental Conservation
AN ACT to amend the environmental conservation law, the tax law, the
general municipal law, the public service law and the business law, in
relation to eligibility for participation in the brownfield cleanup
program, the provision for a covenant, and assignment of the brown-
field redevelopment tax; and repealing certain provisions of the envi-
ronmental conservation law relating thereto
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Subdivision (b) of section 27-1318 of the environmental
conservation 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] ONE HUNDRED EIGHTY 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 thirty-six of article seventy-one of this chapter OR AN ENVI-
RONMENTAL COVENANT PURSUANT TO TITLE FORTY-FIVE OF ARTICLE SEVENTY-ONE
OF THIS CHAPTER.
S 2. Subdivisions 2 and 4 of section 27-1405 of the environmental
conservation law, subdivision 2 as amended by section 2 of part A of
chapter 577 of the laws of 2004 and subdivision 4 as added by section 1
of part A of chapter 1 of the laws of 2003, are amended to read as
follows:
2. "Brownfield site" or "site" shall mean any real property[, the
redevelopment or reuse of which may be complicated by the presence or
potential presence of] WHERE a contaminant IS KNOWN TO BE PRESENT AT
LEVELS EXCEEDING APPLICABLE HEALTH-BASED OR ENVIRONMENTAL STANDARDS OR
IS REASONABLY EXPECTED TO BE PRESENT BASED ON HISTORIC COMMERCIAL OR
INDUSTRIAL USE OF THE SITE AS ESTABLISHED BY A PHASE I REPORT AS DEFINED
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD16824-02-0
A. 11435 2
IN REGULATIONS PROMULGATED BY THE DEPARTMENT. Such term shall not
include real property:
(a) listed in the registry of inactive hazardous waste disposal sites
under section 27-1305 of this article at the time of application to this
program and given a classification as described in subparagraph one or
two of paragraph b of subdivision two of section 27-1305 of this arti-
cle; provided, however except until July first, two thousand five, real
property listed in the registry of inactive hazardous waste disposal
sites under subparagraph two of paragraph b of subdivision two 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) listed on the national priorities list established under authority
of 42 U.S.C. section 9605;
(c) 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 "brown-
field site" a hazardous waste treatment, storage or disposal facility
having interim status according to regulations promulgated by the
commissioner;
(d) 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) 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.
4. "Brownfield site cleanup agreement" shall mean: (A) FOR THOSE SITES
WHERE THE DEPARTMENT HAS ISSUED A NOTICE TO THE APPLICANT ON OR BEFORE
JULY FIRST, TWO THOUSAND TEN THAT ITS REQUEST FOR PARTICIPATION HAS BEEN
ACCEPTED UNDER SUBDIVISION SIX OF SECTION 27-1407 OF THIS TITLE, an
agreement executed in accordance with section 27-1409 of this title [by
an applicant and the department for the purpose of completing a brown-
field site remedial program]; (B) FOR THOSE SITES WHERE THE DEPARTMENT
HAS ISSUED SUCH NOTICE AFTER JULY FIRST, TWO THOUSAND TEN, THE APPLI-
CANT'S WRITTEN ACCEPTANCE OF THE TERMS AND CONDITIONS OF PARTICIPATION
PURSUANT TO SECTION 27-1409 OF THIS TITLE, AND THE DATE OF THE APPLI-
CANT'S WRITTEN ACCEPTANCE SHALL BE THE DATE OF THE BROWNFIELD SITE
CLEANUP AGREEMENT.
S 3. Subdivision 1 of section 27-1407 of the environmental conserva-
tion law, as amended by section 3 of part A of chapter 577 of the laws
of 2004, is amended to read as follows:
1. A person who seeks to participate in this program shall submit a
request to the department on a form provided by the department. Such
form shall include information to be determined by the department suffi-
cient to allow the department to determine eligibility and the current,
intended and reasonably anticipated future land use of the site pursuant
to section 27-1415 of this title. IF THE PERSON IS ALSO SEEKING TO
RECEIVE THE TANGIBLE PROPERTY CREDIT COMPONENT OF THE BROWNFIELD REDE-
VELOPMENT TAX CREDIT PURSUANT TO PARAGRAPH THREE OF SUBDIVISION (A) OF
SECTION TWENTY-ONE OF THE TAX LAW SUCH PERSON SHALL:
A. 11435 3
(A) SUBMIT INFORMATION SUFFICIENT TO DEMONSTRATE THAT (I) THE SITE HAS
BEEN A VACANT LOT FOR TEN OR MORE YEARS, OR, IN THE CASE OF A SITE WITH
A BUILDING OR BUILDINGS, HAS BEEN VACANT OR SEVERELY UNDERUTILIZED, AS
DEMONSTRATED BY TWENTY PERCENT OR LESS USE OF ANY BUILDING SPACE FOR THE
PURPOSES FOR WHICH THE BUILDING WAS DESIGNED FOR TEN OR MORE YEARS, (II)
THE SITE OR A PART THEREOF IS WITHIN AN ENVIRONMENTAL ZONE AS DEFINED IN
PARAGRAPH SIX OF SUBDIVISION (B) OF SECTION TWENTY-ONE OF THE TAX LAW,
(III) THE PROJECTED COST OF THE INVESTIGATION AND REMEDIATION WHICH IS
PROTECTIVE FOR THE ANTICIPATED USE OF THE SITE EXCEEDS THE CERTIFIED
APPRAISED VALUE OF THE PROPERTY ABSENT CONTAMINATION, OR (IV) THE SITE
IS TO BE DEVELOPED AS AFFORDABLE HOUSING, DEFINED AS HAVING AT LEAST
TWENTY PERCENT OF ITS RESIDENTIAL UNITS SUBJECT TO AN AGREEMENT WITH A
MUNICIPALITY, THE STATE, THE FEDERAL GOVERNMENT, OR AN INSTRUMENTALITY
THEREOF, WHERE SUCH AGREEMENT RESTRICTS OCCUPANCY OF THOSE UNITS TO
RESIDENTS WHO QUALIFY IN ACCORDANCE WITH AN INCOME TEST;
(B) SUBMIT AN INVESTIGATION REPORT SUFFICIENT TO DEMONSTRATE THAT THE
SITE REQUIRES REMEDIATION IN ORDER TO MEET THE REMEDIAL REQUIREMENTS OF
THIS TITLE; AND
(C) FOR ANY SITE LOCATED WITHIN A BROWNFIELD OPPORTUNITY AREA DESIG-
NATED BY THE SECRETARY OF STATE PURSUANT TO SECTION NINE HUNDRED SEVEN-
TY-R OF THE GENERAL MUNICIPAL LAW, SUBMIT A DEMONSTRATION THAT THE
DEVELOPMENT OF THE SITE WILL BE IN CONFORMANCE WITH SUCH BROWNFIELD
OPPORTUNITY AREA PLAN.
S 4. Subdivision 3 of section 27-1407 of the environmental conserva-
tion law, as amended by section 3 of part A of chapter 577 of the laws
of 2004, is amended to read as follows:
3. The department shall notify the person requesting participation in
this program within [ten] THIRTY days after receiving such request that
such request is either complete or incomplete. In the event the applica-
tion is determined to be incomplete the department shall specify in
writing the missing necessary information required pursuant to this
article to complete the application and shall have ten days after
receipt of the missing information to issue a written determination if
the application is complete.
S 5. Subdivision 6 of section 27-1407 of the environmental conserva-
tion law, as added by section 1 of part A of chapter 1 of the laws of
2003, is amended to read as follows:
6. The department shall use all best efforts to expeditiously notify
the applicant within forty-five days after receiving [their] A request
for participation that such request is either accepted or rejected, AND,
FOR ANY APPLICANT SEEKING TO RECEIVE THE TANGIBLE PROPERTY CREDIT COMPO-
NENT OF THE BROWNFIELD REDEVELOPMENT TAX CREDIT PURSUANT TO PARAGRAPH
THREE OF SUBDIVISION (A) OF SECTION TWENTY-ONE OF THE TAX LAW, WHETHER
THE CRITERIA FOR RECEIVING SUCH COMPONENT AS SET FORTH IN SUBDIVISION
ONE OF THIS SECTION HAVE BEEN MET. IN THE CASE OF A SITE WITHIN A DESIG-
NATED BROWNFIELD OPPORTUNITY AREA, THE NOTICE SHALL INCLUDE A DETERMI-
NATION BY THE SECRETARY OF STATE AS TO WHETHER THE PROPOSED DEVELOPMENT
FOR THE SITE IS IN CONFORMANCE WITH THE DESIGNATED BROWNFIELD OPPORTU-
NITY AREA PLAN PURSUANT TO SECTION NINE HUNDRED SEVENTY-R OF THE GENERAL
MUNICIPAL LAW.
S 6. Subdivision 8 of section 27-1407 of the environmental conserva-
tion law is amended by adding a new paragraph (e) to read as follows:
(E) THE PERSON'S PARTICIPATION IN ANY REMEDIAL PROGRAM UNDER THE
DEPARTMENT'S OVERSIGHT WAS TERMINATED BY THE DEPARTMENT FOR FAILURE TO
SUBSTANTIALLY COMPLY WITH AN AGREEMENT OR ORDER.
A. 11435 4
S 7. Section 27-1409 of the environmental conservation law is REPEALED
and a new section 27-1409 is added to read as follows:
S 27-1409. TERMS OF PARTICIPATION.
1. WITHIN FIFTEEN DAYS OF RECEIPT OF A NOTICE PURSUANT TO SUBDIVISION
SIX OF SECTION 27-1407 OF THIS TITLE THAT ITS REQUEST FOR PARTICIPATION
HAS BEEN ACCEPTED, THE APPLICANT SHALL ADVISE THE DEPARTMENT IN WRITING
WHETHER IT ACCEPTS THE DEPARTMENT'S ELIGIBILITY DETERMINATION AND THE
TERMS AND CONDITIONS OF PARTICIPATION AS PROVIDED IN SUBDIVISION TWO OF
THIS SECTION, THE REGULATIONS PROMULGATED AND GUIDANCE ISSUED PURSUANT
TO THIS TITLE, AND OTHER TERMS AND CONDITIONS AS MAY BE CONTAINED IN THE
NOTICE. IF THE APPLICANT DOES NOT SO ADVISE THE DEPARTMENT OR DECLINES
TO ACCEPT SUCH TERMS AND CONDITIONS, THE APPLICATION SHALL BE DEEMED
WITHDRAWN.
2. ALL APPLICANTS ACCEPTING PARTICIPATION IN THE BROWNFIELD CLEANUP
PROGRAM IN ACCORDANCE WITH SUBDIVISION ONE OF THIS SECTION ARE SUBJECT
TO THE FOLLOWING TERMS AND CONDITIONS:
(A) THE BOUNDARIES OF THE REAL PROPERTY THAT WILL BE CONSIDERED THE
PARTICIPATING BROWNFIELD SITE FOR PURPOSES OF THIS TITLE SHALL BE THOSE
SET FORTH IN THE DEPARTMENT'S NOTICE PURSUANT TO SUBDIVISION SIX OF
SECTION 27-1407 OF THIS TITLE;
(B) THE PARTICIPANT SHALL PAY ALL COSTS INCURRED BY THE STATE UP TO
THE EFFECTIVE DATE OF SUCH AGREEMENT AND ALL STATE COSTS INCURRED IN
NEGOTIATING AND OVERSEEING IMPLEMENTATION OF SUCH AGREEMENT, PROVIDED,
HOWEVER, THAT SUCH COSTS MAY BE BASED UPON A REASONABLE FLAT-FEE FOR
OVERSIGHT, WHICH SHALL REFLECT THE PROJECTED FUTURE STATE COSTS TO BE
INCURRED IN NEGOTIATING AND OVERSEEING IMPLEMENTATION OF SUCH AGREEMENT.
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;
(C) WITH RESPECT TO A BROWNFIELD SITE WHICH THE DEPARTMENT HAS DETER-
MINED CONSTITUTES A SIGNIFICANT THREAT TO THE PUBLIC HEALTH OR ENVIRON-
MENT, THE DEPARTMENT MAY INCLUDE A PROVISION REQUIRING THE PARTICIPANT
TO PROVIDE A TECHNICAL ASSISTANCE GRANT, AS DESCRIBED IN SUBDIVISION
FOUR OF SECTION 27-1417 OF THIS TITLE, TO AN ELIGIBLE PARTY;
(D) DISPUTES ARISING FROM THE EVALUATION, ANALYSIS, AND OVERSIGHT OF
THE IMPLEMENTATION OF THE WORK PLAN SHALL BE RESOLVED IN ACCORDANCE WITH
REGULATIONS PROMULGATED BY THE DEPARTMENT;
(E) NOTWITHSTANDING SECTION EIGHT OF THE COURT OF CLAIMS ACT OR ANY
OTHER PROVISION OF LAW TO THE CONTRARY, THE STATE SHALL BE IMMUNE FROM
LIABILITY AND ACTION WITH RESPECT TO ANY ACT OR OMISSION DONE IN THE
DISCHARGE OF THE DEPARTMENT'S RESPONSIBILITIES UNDER THIS TITLE;
PROVIDED, HOWEVER, THAT THIS PARAGRAPH SHALL NOT LIMIT THE LIABILITY
WHICH MAY OTHERWISE EXIST FOR THE STATE'S GROSS NEGLIGENCE OR UNLAWFUL,
WILLFUL OR MALICIOUS ACTS OR OMISSIONS ON THE PART OF THE STATE, STATE
AGENCIES, OR THEIR OFFICERS, EMPLOYEES OR AGENTS;
(F) THE DEPARTMENT MAY TERMINATE AN APPLICANT'S PARTICIPATION IN THE
BROWNFIELD CLEANUP PROGRAM AT ANY TIME IF THE APPLICANT FAILS TO
SUBSTANTIALLY COMPLY WITH THE TERMS AND CONDITIONS OF THIS SUBDIVISION,
ANY DULY PROMULGATED REGULATIONS IMPLEMENTING THE BROWNFIELD CLEANUP
PROGRAM, ANY TERMS AND CONDITIONS SET FORTH IN THE DEPARTMENT'S NOTICE
PURSUANT TO SUBDIVISION SIX OF SECTION 27-1407 OF THIS TITLE, OR ANY
WORK PLAN APPROVED BY THE DEPARTMENT;
(G) THE DEPARTMENT SHALL NOT CONSIDER THE APPLICANT AN OPERATOR OF A
BROWNFIELD SITE BASED SOLELY UPON PARTICIPATION IN THE BROWNFIELD CLEAN-
UP PROGRAM FOR PURPOSES OF REMEDIATION LIABILITY;
A. 11435 5
(H) THE APPLICANT SHALL CONDUCT INVESTIGATION AND/OR REMEDIATION
ACTIVITIES PURSUANT TO WORK PLANS APPROVED BY THE DEPARTMENT AND SHALL
BEGIN SUCH INVESTIGATION AND/OR REMEDIATION ACTIVITIES WITHIN NINETY
DAYS OF APPROVAL OF THE WORK PLAN BY THE DEPARTMENT;
(I) THE APPLICANT SHALL PREPARE AND IMPLEMENT A CITIZEN PARTICIPATION
PLAN CONSISTENT WITH THE REQUIREMENTS OF THIS TITLE AS SOON AS POSSIBLE
FOLLOWING THE DEPARTMENT'S NOTICE PURSUANT TO SUBDIVISION SIX OF SECTION
27-1407 OF THIS TITLE BUT PRIOR TO THE PREPARATION OF A DRAFT REMEDIAL
INVESTIGATION PLAN BY THE APPLICANT WHICH SHALL INCLUDE A DESCRIPTION OF
CITIZEN PARTICIPATION ACTIVITIES ALREADY PERFORMED BY THE APPLICANT
AND/OR THE DEPARTMENT; AND
(J) EFFECTIVE UPON THE ACCEPTANCE INTO THE BROWNFIELD CLEANUP PROGRAM
PURSUANT TO SUBDIVISION ONE OF THIS SECTION, THE APPLICANT IS DEEMED TO
HAVE WAIVED ANY RIGHT SUCH APPLICANT HAS OR MAY HAVE TO MAKE A CLAIM
AGAINST THE STATE OF NEW YORK PURSUANT TO ARTICLE TWELVE OF THE NAVIGA-
TION LAW WITH RESPECT TO THE BROWNFIELD SITE, AND RELEASED THE NEW YORK
ENVIRONMENTAL PROTECTION AND SPILL COMPENSATION FUND FROM ANY AND ALL
LEGAL OR EQUITABLE CLAIMS OR CAUSES OF ACTION THAT SUCH APPLICANT MAY
HAVE AS A RESULT OF PARTICIPATING IN THE BROWNFIELD CLEANUP PROGRAM OR
FULFILLING A BROWNFIELD SITE REMEDIAL PROGRAM AT SUCH SITE.
S 8. Section 27-1411 of the environmental conservation law is amended
by adding two new subdivisions 6 and 7 to read as follows:
6. AN APPLICANT SHALL COMMENCE IMPLEMENTATION OF ANY WORK PLAN WITHIN
NINETY DAYS OF APPROVAL OF THE PLAN BY THE DEPARTMENT AND COMPLETE THE
ACTIVITIES PROVIDED FOR IN SUCH WORK PLAN IN ACCORDANCE WITH THE SCHED-
ULE SET FORTH THEREIN, OR AS OTHERWISE APPROVED BY THE DEPARTMENT IN
WRITING.
7. AN APPLICANT SHALL INCLUDE WITH EVERY REPORT SUBMITTED TO THE
DEPARTMENT A SCHEDULE FOR THE SUBMISSION OF ANY SUBSEQUENT WORK PLAN
REQUIRED TO MEET THE REQUIREMENTS OF THIS TITLE.
S 9. 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
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-
A. 11435 6
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 10. Paragraph (e) of subdivision 2 of section 27-1419 of the envi-
ronmental 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 ARTICLE SEVENTY-ONE OF THIS CHAPTER and that
any affected local governments, as defined in title thirty-six of arti-
cle seventy-one of this chapter have been notified that such easement OR
COVENANT has been recorded;
S 11. Subdivision 3 of section 27-1419 of the environmental conserva-
tion law, as amended by chapter 390 of the laws of 2008, is amended to
read as follows:
3. Upon receipt of the final engineering report, the department shall
review such report and the data submitted pursuant to the brownfield
site cleanup agreement as well as any other relevant information regard-
ing the brownfield site. Upon satisfaction of the commissioner that the
remediation requirements set forth in this title have been or will be
achieved in accordance with the timeframes, if any, established in the
remedial work plan, the commissioner shall issue a written certificate
of completion[, such]. SUCH certificate shall include such information
as determined by the department of taxation and finance, including but
not limited to the brownfield site boundaries included in the final
engineering report, the date of the brownfield site CLEANUP agreement
[pursuant to section 27-1409 of this title], and the applicable percent-
ages available AS OF THE DATE OF THE CERTIFICATE OF COMPLETION for that
site for purposes of section twenty-one of the tax law[, with such]. FOR
THOSE SITES FOR WHICH THE DEPARTMENT HAS ISSUED A NOTICE TO THE TAXPAYER
AFTER JULY FIRST, TWO THOUSAND TEN THAT ITS REQUEST FOR PARTICIPATION
HAS BEEN ACCEPTED UNDER SUBDIVISION SIX OF SECTION 27-1407 OF THIS
TITLE, THE TANGIBLE PROPERTY CREDIT COMPONENT OF THE BROWNFIELD REDEVEL-
OPMENT TAX CREDIT PURSUANT TO PARAGRAPH THREE OF SUBDIVISION (A) OF
SECTION TWENTY-ONE OF THE TAX LAW SHALL ONLY BE AVAILABLE TO THE TAXPAY-
ER IF SUCH NOTICE INCLUDES A DETERMINATION THAT THE CRITERIA FOR RECEIV-
ING SUCH TAX COMPONENT HAVE BEEN MET. APPLICABLE percentages [to] FOR
COMPUTING THE BROWNFIELD REDEVELOPMENT TAX CREDIT PURSUANT TO SECTION
TWENTY-ONE OF THE TAX LAW SHALL be determined as follows:
(A) with respect to such qualified site for which the department has
issued a notice to the taxpayer after June twenty-third, two thousand
eight that its request for participation has been accepted under subdi-
vision six of section 27-1407 of this title[:
For the purposes of calculating], THE APPLICABLE PERCENTAGE FOR the
site preparation credit component pursuant to paragraph two of subdivi-
sion (a) of section twenty-one of the tax law, and the on-site groundwa-
ter remediation credit component pursuant to paragraph four of subdivi-
sion (a) of section twenty-one of the tax law[, the applicable
percentage] shall be based on the level of cleanup achieved pursuant to
subdivision four of section 27-1415 of this title and the level of
cleanup of soils to contaminant-specific soil cleanup objectives promul-
gated pursuant to subdivision six of section 27-1415 of this title, up
to a maximum of fifty percent, as follows:
A. 11435 7
[(a)] (I) soil cleanup for unrestricted use, the protection of ground-
water or the protection of ecological resources, the applicable percent-
age shall be fifty percent;
[(b)] (II) soil cleanup for residential use, the applicable percentage
shall be forty percent, except for Track 4 which shall be twenty-eight
percent;
[(c)] (III) soil cleanup for commercial use, the applicable percentage
shall be thirty-three percent, except for Track 4 which shall be twen-
ty-five percent;
[(d)](IV) soil cleanup for industrial use, the applicable percentage
shall be twenty-seven percent, except for Track 4 which shall be twen-
ty-two percent.
(B) WITH RESPECT TO SUCH QUALIFIED SITE FOR WHICH THE DEPARTMENT HAS
ISSUED A NOTICE TO THE TAXPAYER AFTER JULY FIRST, TWO THOUSAND TEN THAT
ITS REQUEST FOR PARTICIPATION HAS BEEN ACCEPTED UNDER SUBDIVISION SIX OF
SECTION 27-1407 OF THIS TITLE, THE APPLICABLE PERCENTAGE FOR THE TANGI-
BLE PROPERTY CREDIT COMPONENT OF THE BROWNFIELD REDEVELOPMENT TAX PURSU-
ANT TO PARAGRAPH THREE OF SUBDIVISION (A) OF SECTION TWENTY-ONE OF THE
TAX LAW SHALL BE THE SUM OF TEN PERCENT AND THE FOLLOWING ADDITIONAL
PERCENTAGES, PROVIDED THAT THE TOTAL PERCENTAGE OF THE TANGIBLE PROPERTY
CREDIT COMPONENT SHALL NOT EXCEED TWENTY-FOUR PERCENT AND IS OTHERWISE
SUBJECT TO THE LIMITATIONS SET FORTH IN PARAGRAPHS THREE AND THREE-A OF
SUBDIVISION (A) OF SECTION TWENTY-ONE OF THE TAX LAW:
(I) TEN PERCENT FOR A SITE WITHIN AN ENVIRONMENTAL ZONE OR FOR A SITE
LOCATED WITHIN A DESIGNATED BROWNFIELD OPPORTUNITY AREA WHERE THE SECRE-
TARY OF STATE HAS DETERMINED THAT THE PROPOSED DEVELOPMENT OF THE SITE
IS IN CONFORMANCE WITH SUCH BROWNFIELD OPPORTUNITY AREA PLAN PURSUANT TO
SECTION NINE HUNDRED SEVENTY-R OF THE GENERAL MUNICIPAL LAW. FOR ANY
SITE WITHIN AN ENVIRONMENTAL ZONE AND WITHIN AND IN CONFORMANCE WITH A
BROWNFIELD OPPORTUNITY AREA, THE APPLICABLE PERCENTAGE UNDER THIS
SUBPARAGRAPH SHALL BE TWELVE PERCENT;
(II) FOUR PERCENT FOR SITES ON WHICH THE PRIMARY DEVELOPMENT IS A
BUILDING OR BUILDINGS CONSTRUCTED IN CONFORMANCE WITH GREEN BUILDING
REGULATIONS PROMULGATED PURSUANT TO SECTION NINETEEN OF THE TAX LAW OR
SECTION EIGHTEEN HUNDRED SEVENTY-TWO OF THE PUBLIC AUTHORITIES LAW; AND
(III) FOUR PERCENT FOR SITES DEVELOPED AS AFFORDABLE HOUSING, DEFINED
AS HAVING AT LEAST TWENTY PERCENT OF ITS RESIDENTIAL UNITS SUBJECT TO AN
AGREEMENT WITH A MUNICIPALITY, THE STATE, THE FEDERAL GOVERNMENT, OR AN
INSTRUMENTALITY THEREOF, WHERE SUCH AGREEMENT RESTRICTS OCCUPANCY OF
THOSE UNITS TO RESIDENTS WHO QUALIFY IN ACCORDANCE WITH AN INCOME TEST.
(C) ALL OTHER APPLICABLE PERCENTAGES ARE SET FORTH IN PARAGRAPH FIVE
OF SUBDIVISION (A) OF SECTION TWENTY-ONE OF THE TAX LAW.
S 12. Subdivision 5 of section 27-1419 of the environmental conserva-
tion law, as amended by section 9 of part A of chapter 577 of the laws
of 2004, is amended to read as follows:
5. A certificate of completion issued pursuant to this section may be
transferred to the applicant's successors or assigns upon transfer or
sale of the brownfield site. Further, a certificate of completion may be
modified or revoked by the commissioner upon a finding that:
(a) Either the applicant, or the applicant's successors or assigns,
has failed to comply with the terms and conditions of the brownfield
site cleanup agreement;
(b) The applicant made a misrepresentation of a material fact tending
to demonstrate that it (I) was qualified as a volunteer OR (II) MET THE
CRITERIA SET FORTH IN SUBDIVISION ONE OF SECTION 27-1407 OF THIS TITLE
FOR THE PURPOSE OF RECEIVING THE TANGIBLE PROPERTY CREDIT COMPONENT OF
A. 11435 8
THE BROWNFIELD REDEVELOPMENT TAX CREDIT PURSUANT TO PARAGRAPH THREE OF
SUBDIVISION (A) OF SECTION TWENTY-ONE OF THE TAX LAW;
(c) Either the applicant, or the applicant's successors or assigns,
made a misrepresentation of a material fact tending to demonstrate that
the cleanup levels identified in the brownfield site cleanup agreement
were reached; [or]
(d) THE ENVIRONMENTAL EASEMENT CREATED AND RECORDED PURSUANT TO TITLE
THIRTY-SIX OF ARTICLE SEVENTY-ONE OF THIS CHAPTER OR ENVIRONMENTAL
COVENANT CREATED AND RECORDED PURSUANT TO TITLE FORTY-FIVE OF ARTICLE
SEVENTY-ONE OF THIS CHAPTER DOES NOT PROVIDE AN EFFECTIVE OR ENFORCEABLE
MEANS OF ENSURING THE PERFORMANCE OF MAINTENANCE, MONITORING OR OPERAT-
ING REQUIREMENTS, OR THE RESTRICTIONS ON FUTURE LAND USES, INCLUDING
RESTRICTIONS ON DRILLING FOR OR WITHDRAWING GROUNDWATER; OR
(E) There is good cause for such modification or revocation.
S 13. Section 27-1423 of the environmental conservation law is
REPEALED.
S 14. Section 27-1429 of the environmental conservation law, as
amended by section 13 of part A of chapter 577 of the laws of 2004, is
amended to read as follows:
S 27-1429. Permit waivers.
The department[, by and through the commissioner,] shall be EXEMPT,
AND SHALL BE authorized to exempt a person from the requirement to
obtain any state or local permit or other authorization for any activity
needed to implement a program for the investigation and/or remediation
of contamination AT OR EMANATING FROM A BROWNFIELD SITE; provided that
the activity is conducted in a manner which satisfies all substantive
technical requirements applicable to like activity conducted pursuant to
a permit.
S 15. Subdivision 1 of section 27-1431 of the environmental conserva-
tion law is amended by adding a new paragraph c to read as follows:
C. TO INSPECT FOR COMPLIANCE WITH THE SITE MANAGEMENT PLAN APPROVED BY
THE DEPARTMENT, INCLUDING (I) INSPECTION OF THE PERFORMANCE OF MAINTE-
NANCE, MONITORING AND OPERATIONAL ACTIVITIES REQUIRED AS PART OF THE
REMEDIAL PROGRAM FOR THE SITE, (II) INSPECTION FOR THE PURPOSE OF ASCER-
TAINING CURRENT USES OF THE SITE, AND (III) TAKING SAMPLES IN ACCORDANCE
WITH PARAGRAPH A OF THIS SUBDIVISION.
S 16. Paragraph (g) of subdivision 2 of section 56-0503 of the envi-
ronmental 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 ARTICLE
SEVENTY-ONE OF THIS CHAPTER) that the department may deem necessary to
allow the contemplated 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 17. 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.
A. 11435 9
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.
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. 11435 10
(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) 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.
A. 11435 11
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
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, AN
ENVIRONMENTAL COVENANT MAY CONTAIN OTHER INFORMATION, RESTRICTIONS, AND
REQUIREMENTS AGREED TO BY THE PERSONS WHO SIGNED IT, INCLUDING ANY:
A. 11435 12
(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 REQUIREMENTS, 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;
(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 OR BECAUSE IT WAS IDENTIFIED AS AN EASEMENT, SERVITUDE, 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
A. 11435 13
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.
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.
A. 11435 14
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.
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-
A. 11435 15
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 18. Paragraph 3 of subdivision (a) of section 21 of the tax law, as
amended by chapter 390 of the laws of 2008, is amended to read as
follows:
(3) Tangible property credit component. The tangible property credit
component shall be equal to the applicable percentage of the cost or
other basis for federal income tax purposes of tangible personal proper-
ty and other tangible property, including buildings and structural
components of buildings, which constitute qualified tangible property;
provided[, however,] that in determining the cost or other basis of such
property[,] the taxpayer MAY INCLUDE THE COSTS INCURRED IN CONNECTION
WITH PREPARING A SITE FOR THE ERECTION OF A BUILDING OR A COMPONENT OF A
BUILDING, SUCH AS THE COST OF EXCAVATION, DEMOLITION, TEMPORARY ELECTRIC
WIRING, SCAFFOLDING, FENCING AND SECURITY FACILITIES, TO THE EXTENT THAT
SUCH COSTS ARE NOT USED AS A BASIS FOR COMPUTING THE SITE PREPARATION
COMPONENT OF THE BROWNFIELD REDEVELOPMENT TAX CREDIT PURSUANT TO PARA-
GRAPH TWO OF THIS SUBDIVISION; AND PROVIDED FURTHER THAT, IN THE CASE OF
QUALIFIED SITES ELIGIBLE FOR THE TANGIBLE PROPERTY CREDIT COMPONENT
SOLELY ON THE BASIS OF THE AFFORDABLE HOUSING CRITERION AS SET FORTH IN
SUBDIVISION ONE OF SECTION 27-1407 OF THE ENVIRONMENTAL CONSERVATION
LAW, THE TANGIBLE PROPERTY CREDIT COMPONENT WILL BE LIMITED TO THE
APPLICABLE PERCENTAGE OF THE COSTS ATTRIBUTABLE TO THE AFFORDABLE UNITS
OF THE DEVELOPMENT. THE TAXPAYER shall exclude the acquisition cost of
any item of property with respect to which a credit under this section
was allowable to another taxpayer. The credit component amount so deter-
mined shall be allowed for the taxable year in which such qualified
tangible property is placed in service on a qualified site with respect
to which a certificate of completion has been issued to the taxpayer, OR
FOR THE TAXABLE YEAR IN WHICH THE CERTIFICATE OF COMPLETION IS ISSUED IF
THE QUALIFIED TANGIBLE PROPERTY IS PLACED IN SERVICE PRIOR TO THE ISSU-
ANCE OF THE CERTIFICATE OF COMPLETION, for up to ten taxable years after
the date of the issuance of such certificate of completion. The tangible
property credit component shall be allowed with respect to property
leased to a second party only if such second party is either (i) not a
party responsible for the disposal of hazardous waste or the discharge
of petroleum at the site according to applicable principles of statutory
or common law liability, or (ii) a party responsible according to appli-
cable principles of statutory or common law liability if such party's
liability arises solely from operation of the site subsequent to the
disposal of hazardous waste or the discharge of petroleum, and is so
certified by the commissioner of environmental conservation at the
request of the taxpayer, pursuant to section 27-1419 of the environ-
mental conservation law. Notwithstanding any other provision of law to
the contrary, in the case of allowance of credit under this section to
such a lessor, the commissioner shall have the authority to reveal to
such lessor any information, with respect to the issue of qualified use
of property by the lessee, which is the basis for the denial in whole or
in part, or for the recapture, of the credit claimed by such lessor. For
purposes of the tangible property credit component allowed under this
A. 11435 16
section the taxpayer to whom the certificate of completion is issued, as
provided for under subdivision five of section 27-1419 of the environ-
mental conservation law, may transfer the benefits and burdens of the
certificate of completion, which run with the land and to the appli-
cant's successors or assigns upon transfer or sale of all or any portion
of an interest or estate in the qualified site. However, the taxpayer to
whom certificate's benefits and burdens are transferred shall not
include the cost of acquiring all or any portion of an interest or
estate in the site and the amounts included in the cost or other basis
for federal income tax purposes of qualified tangible property already
claimed by the previous taxpayer pursuant to this section.
S 19. 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 ONE HUNDRED NINETY-EIGHT 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 million dollars or six 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 ONE HUNDRED NINE-
TY-EIGHT 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 20. Subparagraph (D) 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 follow:
(D) [If] WITH RESPECT TO ANY QUALIFIED SITE FOR WHICH THE DEPARTMENT
OF ENVIRONMENTAL CONSERVATION HAS ISSUED A NOTICE TO THE TAXPAYER ON OR
BEFORE JULY FIRST, TWO THOUSAND TEN THAT ITS REQUEST FOR PARTICIPATION
HAS BEEN ACCEPTED UNDER SUBDIVISION SIX OF SECTION 27-1407 OF THE ENVI-
RONMENTAL CONSERVATION LAW, OR WHERE THE TAXPAYER HAS EITHER BEEN ISSUED
OR RECEIVED A CERTIFICATE OF COMPLETION FROM ANOTHER TAXPAYER UNDER
SECTION 27-1419 OF THE ENVIRONMENTAL CONSERVATION LAW ON OR BEFORE JULY
FIRST, TWO THOUSAND TEN, IF the qualifying site is located in a brown-
field opportunity area and is developed in conformance with the goals
and priorities established for that applicable brownfield opportunity
area as designated pursuant to section nine hundred seventy-r of the
general municipal law, the applicable percentage of the tangible proper-
ty credit component will be increased by two percent.
A. 11435 17
S 21. 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 COMPUTING THE SITE PREPARA-
TION AND ON-SITE GROUNDWATER REMEDIATION CREDIT COMPONENTS PURSUANT TO
paragraphs two[, three] and four of this subdivision, WITH RESPECT TO
SUCH QUALIFIED SITES FOR WHICH THE DEPARTMENT OF ENVIRONMENTAL CONSERVA-
TION 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 CONSERVA-
TION LAW, OR WHERE THE TAXPAYER HAS EITHER BEEN ISSUED OR RECEIVED A
CERTIFICATE OF COMPLETION FROM ANOTHER TAXPAYER UNDER SECTION 27-1419 OF
THE ENVIRONMENTAL CONSERVATION LAW BEFORE JUNE TWENTY-THIRD, TWO THOU-
SAND EIGHT, AND, FOR PURPOSES OF COMPUTING THE TANGIBLE PROPERTY COMPO-
NENT PURSUANT TO PARAGRAPH THREE OF THIS SUBDIVISION WITH RESPECT TO
SUCH QUALIFIED SITES FOR WHICH THE DEPARTMENT OF ENVIRONMENTAL CONSERVA-
TION HAS ISSUED A NOTICE TO THE TAXPAYER ON OR BEFORE JULY FIRST, TWO
THOUSAND TEN THAT ITS REQUEST FOR PARTICIPATION HAS BEEN ACCEPTED UNDER
SUBDIVISION SIX OF SECTION 27-1407 OF THE ENVIRONMENTAL CONSERVATION
LAW, OR WHERE THE TAXPAYER HAS EITHER BEEN ISSUED OR RECEIVED A CERTIF-
ICATE OF COMPLETION FROM ANOTHER TAXPAYER UNDER SECTION 27-1419 OF THE
ENVIRONMENTAL CONSERVATION LAW ON OR BEFORE JULY FIRST, TWO THOUSAND
TEN, 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 appli-
cable percentage shall be increased by an additional 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 environmental conservation
law, the applicable percentage set forth in the first sentence of this
paragraph shall be increased by an additional two percent. ALL OTHER
APPLICABLE PERCENTAGES ARE SET FORTH IN SECTION 27-1419 OF THE ENVIRON-
MENTAL CONSERVATION LAW.
S 22. Paragraphs 2 and 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 and subparagraph (B) and the closing paragraph of paragraph 6 as
amended by section 1 of part G of chapter 62 of the laws of 2006, are
amended to read as follows:
(2) Site preparation costs. The term "site preparation costs" shall
mean all amounts properly chargeable to a capital account, (i) which are
paid or incurred in connection with a site's qualification for a certif-
icate of completion AND ATTRIBUTABLE TO ACTIVITIES SPECIFIED IN A REME-
DIAL WORK PLAN APPROVED BY THE COMMISSIONER OF ENVIRONMENTAL CONSERVA-
TION UNDER SECTION 27-1411 OF THE ENVIRONMENTAL CONSERVATION LAW, and
(ii) WITH RESPECT TO ANY QUALIFIED SITE FOR WHICH THE DEPARTMENT OF
ENVIRONMENTAL CONSERVATION HAS ISSUED A NOTICE TO THE TAXPAYER ON OR
BEFORE JULY FIRST, TWO THOUSAND TEN THAT ITS REQUEST FOR PARTICIPATION
HAS BEEN ACCEPTED UNDER SUBDIVISION SIX OF SECTION 27-1407 OF THE ENVI-
RONMENTAL CONSERVATION LAW, all other site preparation costs paid or
incurred in connection with preparing a site for the erection of a
building or a component of a building, or otherwise to establish a site
A. 11435 18
as usable for its industrial, commercial (including the commercial
development of residential housing), recreational or conservation
purposes. [Site] FOR PURPOSES OF SUBPARAGRAPH (II) OF THIS PARAGRAPH,
SITE preparation costs shall include, but not be limited to, the costs
of excavation, temporary electric wiring, scaffolding, demolition costs,
and the costs of fencing and security facilities. Site preparation costs
shall not include the cost of acquiring the site and shall not include
amounts included in the cost or other basis for federal income tax
purposes of qualified tangible property, as described in paragraph three
of this subdivision.
(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 EITHER MUNICIPALITIES OR
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
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] NINETY DAYS FOLLOWING THE
OFFICIAL PUBLICATION OF THE MOST RECENT CENSUS.
S 23. Section 171-r of the tax law is amended by adding a new subdivi-
sion (e) to read as follows:
(E) THE COMMISSIONER, IN CONSULTATION WITH THE COMMISSIONER OF ENVI-
RONMENTAL CONSERVATION, SHALL PUBLISH BY SEPTEMBER THIRTIETH, TWO THOU-
SAND TEN A SUPPLEMENTAL BROWNFIELD CREDIT REPORT CONTAINING THE INFORMA-
TION REQUIRED BY THIS SECTION ABOUT THE CREDITS CLAIMED FOR THE YEARS
TWO THOUSAND FIVE, TWO THOUSAND SIX, AND TWO THOUSAND SEVEN.
S 24. Section 970-r of the general municipal law is amended by adding
a new subdivision 10 to read as follows:
10. FOR PURPOSES OF ASSISTING THE COMMISSIONER OF ENVIRONMENTAL
CONSERVATION IN DETERMINING THE BASIS FOR BROWNFIELD REDEVELOPMENT TAX
CREDITS AVAILABLE UNDER THE BROWNFIELD CLEANUP PROGRAM PURSUANT TO TITLE
FOURTEEN OF ARTICLE TWENTY-SEVEN OF THE ENVIRONMENTAL CONSERVATION LAW,
FOR ANY SITE LOCATED WITHIN A DESIGNATED BROWNFIELD OPPORTUNITY AREA FOR
WHICH SUCH TAX CREDITS ARE SOUGHT, THE SECRETARY SHALL MAKE A DETERMI-
NATION ABOUT THE CONFORMANCE OF THE PROPOSED DEVELOPMENT WITH THE BROWN-
FIELD OPPORTUNITY AREA PLAN. THE SECRETARY SHALL ESTABLISH CRITERIA AND
APPLICANT SUBMISSION REQUIREMENTS FOR BROWNFIELD OPPORTUNITY AREA
CONFORMANCE DETERMINATIONS. IN MAKING CONFORMANCE DETERMINATIONS, THE
SECRETARY SHALL BE GUIDED BY, BUT NOT LIMITED TO, THE FOLLOWING CONSID-
A. 11435 19
ERATIONS: HOW THE PROPOSED USE AND DEVELOPMENT ADVANCES THE DESIGNATED
BROWNFIELD OPPORTUNITY AREA PLAN'S VISION STATEMENT, GOALS AND OBJEC-
TIVES FOR REVITALIZATION; HOW THE DENSITY OF DEVELOPMENT AND ASSOCIATED
BUILDINGS AND STRUCTURES ADVANCES THE PLAN'S OBJECTIVES FOR FUTURE LAND
USE, DESIRED REDEVELOPMENT AND PRIORITIES FOR INVESTMENT; AND HOW THE
PROJECT COMPLIES WITH ZONING AND OTHER LOCAL LAWS AND STANDARDS TO GUIDE
AND ENSURE APPROPRIATE DEVELOPMENT ON THE PROJECT SITE.
S 25. Subdivision 5 of section 119-b of the public service law, as
amended by chapter 445 of the laws of 1995, is amended to read as
follows:
5. Any person operating a one-call system in the state shall (A)
register with and obtain certification from the commission. The commis-
sion shall have the power to grant, amend, or revoke certificates of any
such system. Any one-call system engaged in business on or before the
effective date of this subdivision, after registration with the commis-
sion, shall be registered, certified and authorized to continue its
business operations; AND (B) PROVIDE THE COMMISSIONER OF THE DEPARTMENT
OF ENVIRONMENTAL CONSERVATION, AT NO COST, THE INFORMATION RECEIVED AND
MAINTAINED BY SUCH ONE-CALL SYSTEM IN AN ELECTRONIC FORMAT NO LESS
FREQUENTLY THAN ONE TIME PER WEEK.
S 26. Paragraph a of subdivision 2 of section 761 of the general busi-
ness law, as amended by chapter 445 of the laws of 1995, is amended to
read as follows:
a. Receive notices from excavators of proposed excavation and demoli-
tion activities and transmit the information contained in such notices
to every member that operates an underground facility in the area of the
proposed activities AS WELL AS ELECTRONICALLY TRANSMITTING THE INFORMA-
TION CONTAINED IN SUCH NOTICES TO THE COMMISSIONER OF THE DEPARTMENT OF
ENVIRONMENTAL CONSERVATION;
S 27. 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
that this act would have been enacted even if such invalid provisions
had not been included herein.
S 28. This act shall take effect July 1, 2010.
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