S T A T E O F N E W Y O R K
________________________________________________________________________
1160
2009-2010 Regular Sessions
I N A S S E M B L Y
(PREFILED)
January 7, 2009
___________
Introduced by M. of A. SAYWARD, DUPREY -- Multi-Sponsored by -- M. of A.
AMEDORE, BACALLES, BARCLAY, CALHOUN, CROUCH, ERRIGO, FINCH, GIGLIO,
HAYES, KOLB, McDONOUGH, MOLINARO, OAKS, O'MARA, QUINN, RAIA, SALADINO,
SCOZZAFAVA, TEDISCO, THIELE, TOBACCO, WALKER -- read once and referred
to the Committee on Environmental Conservation
AN ACT to amend the environmental conservation law and the general
municipal law, in relation to brownfields and historic fills and mixed
historic fill programs
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Paragraph (a) of subdivision 1 of section 27-1405 of the
environmental conservation law, as amended by section 2 of part A of
chapter 577 of the laws of 2004, is amended to read as follows:
(a) "Participant" shall mean an applicant who either: (i) was the
owner of the site at the time of the disposal or discharge of contam-
inants, UNLESS SUCH PERSON ACTING IN A LANDLORD CAPACITY AND SUCH
PERSON'S TENANTS CAUSED THE DISPOSAL OR DISCHARGE OF CONTAMINANTS
PROVIDED SUCH LANDLORD CAN DEMONSTRATE THROUGH LEASE PROVISIONS THE
TENANTS WERE RESPONSIBLE FOR DISPOSAL OF THEIR OWN HAZARDOUS WASTE AND
ASSOCIATED CONTAMINATION, IN WHICH CASE A LANDLORD IS A VOLUNTEER. FOR
THE PURPOSES OF THIS PARAGRAPH, THE LANDLORD IS ONLY ACTING IN A LAND-
LORD CAPACITY IF SUCH LANDLORD HAS NO PRESENT OWNERSHIP INTEREST OR
WITHIN ONE YEAR PRIOR OWNERSHIP INTEREST IN A TENANT CONNECTED TO THE
SITE AT THE TIME OF THE DISPOSAL OR DISCHARGE; or (ii) is otherwise a
person responsible according to applicable principles of statutory or
common law liability, unless such person's liability arises solely as a
result of such person's ownership or operation of or involvement with
the site subsequent to the disposal or discharge of contaminants.
S 2. The first undesignated paragraph and paragraph (a) of subdivision
2 of section 27-1405 of the environmental conservation law, as amended
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD03837-01-9
A. 1160 2
by section 2 of part A of chapter 577 of the laws of 2004, are amended
and a new paragraph (f) is added to read as follows:
"Brownfield site" or "site" shall mean any real property, the redevel-
opment or reuse of which may be complicated by the presence or potential
presence of a contaminant, INCLUDING, BUT NOT LIMITED TO, ANY REAL PROP-
ERTY, THE REDEVELOPMENT OR REUSE OF WHICH MAY BE COMPLICATED BY THE
PRESENCE OF CONTAMINATED HISTORIC FILL. 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;]
(F) PROVIDED HOWEVER, FOR ALL FIVE CATEGORIES OF INELIGIBLE SITES IN
PARAGRAPHS (A) THROUGH (E) OF THIS SUBDIVISION, A VOLUNTEER SHALL NOT BE
DEEMED INELIGIBLE TO PARTICIPATE IN REGARDS TO ANY SUCH REAL PROPERTY IF
SUCH VOLUNTEER INTENDS TO ACQUIRE SUCH REAL PROPERTY AND ASSUME RESPON-
SIBILITY, NOT FOR PAST COSTS INCURRED PRIOR TO APPLICATION, BUT FOR ALL
FUTURE COSTS TO COMPLETE THE REMEDIATION OF THE SITE SUBJECT TO A REUSE
PLAN AS NEGOTIATED WITH THE DEPARTMENT, AND ENTERS INTO A BROWNFIELD
CLEANUP AGREEMENT IN ACCORDANCE WITH SECTION 27-1409 OF THIS TITLE. IN
THE CASE OF SITES SUBJECT TO FEDERAL JURISDICTION, THE VOLUNTEER MUST
SEEK APPROVAL FROM THE APPROPRIATE FEDERAL AGENCIES TO ENTER THE BROWN-
FIELD CLEANUP PROGRAM PURSUANT TO THIS TITLE. THE ONGOING STATE OR
FEDERAL ENVIRONMENTAL ENFORCEMENT 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 VOLUNTEER
RECEIVES A CERTIFICATE OF COMPLETION PURSUANT TO SECTION 27-1419 OF THIS
TITLE. IN THE EVENT THE VOLUNTEER DOES NOT RECEIVE THE CERTIFICATE OF
COMPLETION OR SUCH CERTIFICATE OF COMPLETION IS REVOKED FOR ANY REASON,
THE STATE OR FEDERAL ENFORCEMENT ACTION WILL RESUME AFTER TIMELY NOTICE
TO ALL PARTIES.
S 3. Section 27-1405 of the environmental conservation law is amended
by adding three new subdivisions 17-a, 17-b and 17-c to read as follows:
17-A. "CONTAMINATED HISTORIC FILL" MEANS NON-INDIGENOUS OR NON-NATIVE
MATERIAL, HISTORICALLY DEPOSITED OR DISPOSED IN THE GENERAL AREA OF, OR
ON, A SITE INTENDED TO CREATE USEABLE LAND BY FILLING WATER BODIES,
WETLANDS OR TOPOGRAPHIC DEPRESSIONS, WHICH IS IN NO WAY CONNECTED WITH
THE SUBSEQUENT OPERATIONS AT THE LOCATION OF THE EMPLACEMENT, AND WHICH
WAS CONTAMINATED PRIOR TO EMPLACEMENT, AND CONTAINS CONTAMINANTS ABOVE
THE UNRESTRICTED SOIL CLEANUP OBJECTIVES PURSUANT TO 6 NYCRR SECTION
375-6.8(A). "CONTAMINATED HISTORIC FILL" GENERALLY INCLUDES INCINERATOR
RESIDUE, COAL, COAL ASH OR CINDERS, MUNICIPAL SOLID WASTE INCINERATOR
ASH, FLY ASH AND OTHER FORMS OF ASH AND CINDERS, INCLUDING BUT NOT
LIMITED TO WOOD ASH, RAILROAD BALLAST, ASBESTOS, CONSTRUCTION DEBRIS AND
DEMOLITION DEBRIS CONTAMINATED WITH SIGNIFICANT PETROLEUM COMPOUNDS, AND
MUNICIPAL SOLID WASTE PLACED IN LANDFILLS THAT HAVE NOT BEEN PROPERLY
CLOSED PURSUANT TO 6 NYCRR PART 360, WHICH IS DETERMINED TO BE LEACHING
A. 1160 3
CONTAMINANTS INTO THE ENVIRONMENT ABOVE THE UNRESTRICTED SOIL CLEANUP
OBJECTIVE PURSUANT TO 6 NYCRR SECTION 375-6.8(A). "CONTAMINATED HISTORIC
FILL" DOES NOT INCLUDE ANY MATERIAL WHICH IS CHEMICAL PRODUCTION WASTE
OR WASTE PRODUCED ON THE SITE FROM PROCESSING OF METAL OR MINERAL ORES,
RESIDUES, SLAG OR TAILINGS, WHICH OTHERWISE FALL UNDER THE DEFINITION OF
CONTAMINANTS.
17-B. "UNCONTAMINATED HISTORIC FILL" MEANS CONSTRUCTION DEBRIS AND
DEMOLITION DEBRIS NOT CONTAMINATED WITH SIGNIFICANT PETROLEUM COMPOUNDS,
DREDGE SPOILS NOT CONTAMINATED WITH CONTAMINANTS ABOVE THE UNRESTRICTED
SOIL CLEANUP OBJECTIVES PURSUANT TO 6 NYCRR SECTION 375-6.8(A), AND
MUNICIPAL SOLID WASTE USED TO FILL LAND WHICH IS NOT A LANDFILL AS
DEFINED UNDER 6 NYCRR PART 360, OR PLACED IN A LANDFILL PROPERLY CLOSED
AND BEING MAINTAINED PURSUANT TO 6 NYCRR PART 360.
17-C. "MIXED HISTORIC FILL" SHALL MEAN UNCONTAMINATED HISTORIC FILL
THAT IS MIXED WITH CONTAMINATED HISTORIC FILL AND SUCH CONTAMINATED
HISTORIC FILL CANNOT BE SEPARATED OUT FROM THE TOTAL HISTORIC FILL; THE
ORIGINAL HISTORIC FILL SHALL BE DEEMED CONTAMINATED HISTORIC FILL.
S 4. 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 request for
participation, OR WITHIN FIFTEEN DAYS OF THE CLOSE OF THE INITIAL PUBLIC
COMMENT PERIOD, WHICHEVER IS LATER, that such request is either accepted
or rejected. "BEST EFFORTS" MEANS THAT THE DEPARTMENT PROJECT COUNSEL
AND PROJECT MANAGER ASSIGNED TO THE APPLICATION ARE DILIGENTLY EVALUAT-
ING THE APPLICATION AND HAVE ISSUED A NOTICE TO THE APPLICANT WITHIN
THIS TIME FRAME. IN THE EVENT A NOTICE IS NOT ISSUED DURING THIS TIME
FRAME, THE APPLICATION IS DEEMED APPROVED NO LATER THAN THIRTY DAYS
AFTER THE TERMINATION OF THIS TIME FRAME FOR REVIEW.
S 5. Subdivision 1, the second undesignated paragraph of subdivision 4
and paragraph (b) of subdivision 7 of section 27-1415 of the environ-
mental conservation law, as amended by section 7 of part A of chapter
577 of the laws of 2004, are amended to read as follows:
1. Remedial programs. All remedial programs shall be protective of
public health and the environment including but not limited to groundwa-
ter according to its classification pursuant to section 17-0301 of this
chapter; drinking water, surface water and air (including indoor air);
sensitive populations, including children; and ecological resources,
including fish and wildlife. In all cases, the target risk of residual
contamination at a site shall not exceed an excess cancer risk of one in
one million for carcinogenic end points and a hazard index of one for
non-cancer end points. WITH RESPECT TO INDOOR AIR, THE DEPARTMENT OF
HEALTH SHALL ASSESS WHICH CONTAMINANTS ARE MOST HARMFUL TO PUBLIC HEALTH
COMMONLY PRESENT AT BROWNFIELD SITES AND PRIORITIZE SUCH CONTAMINANTS
BASED ON TOXICITY AND CONCENTRATION FOR PURPOSES OF THIS PROGRAM.
Track 1: The remedial program shall achieve a cleanup level that will
allow the site to be used for any purpose without restriction and with-
out reliance on the long-term employment of institutional or engineering
controls, and shall achieve contaminant-specific remedial action objec-
tives for soil which conform with those contained in the generic table
of contaminant-specific remedial action objectives for unrestricted use
developed pursuant to subdivision six of this section. Provided, howev-
er, that APPLICANTS WHO MUST INSTALL A VAPOR MITIGATION SYSTEM EVEN
AFTER ACHIEVING TRACK 1 SOIL CLEANUP OBJECTIVES, OR volunteers whose
proposed remedial program for the remediation of groundwater may require
A. 1160 4
the long-term employment of institutional or engineering controls after
the bulk reduction of groundwater contamination to asymptotic levels has
been achieved but whose program would otherwise conform with the
requirements necessary to qualify for Track 1, shall qualify for Track
1.
(b) The owner of a brownfield site at which institutional or engineer-
ing controls, OR VAPOR MITIGATION SYSTEMS, are employed pursuant to this
title shall, unless otherwise provided in writing by the department,
annually submit to the department a written statement by an individual
licensed or otherwise authorized in accordance with article one hundred
forty-five of the education law to practice the profession of engineer-
ing, or by such other expert as the department may find acceptable
certifying under penalty of perjury that the institutional controls
and/or engineering controls, OR VAPOR MITIGATION SYSTEMS, employed at
such site are unchanged from the previous certification and that nothing
has occurred that would impair the ability of such control to protect
the public health and environment, or constitute a violation or failure
to comply with any operation and maintenance plan for such controls, OR
VAPOR MITIGATION SYSTEMS, and giving access to the department to such
real property to evaluate continued maintenance of such controls.
S 6. Subdivision 3 and the first undesignated paragraph and paragraph
(d) of subdivision 5 of section 27-1419 of the environmental conserva-
tion law, subdivision 3 as amended by chapter 390 of the laws of 2008
and the first undesignated paragraph and paragraph (d) of subdivision 5
as amended by section 9 of part A of chapter 577 of the laws of 2004,
are 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 WITHIN THIRTY DAYS OF RECEIPT. 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 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 agreement pursuant to section 27-1409 of this title, and the appli-
cable percentages available for that site for purposes of section twen-
ty-one of the tax law, with such percentages to be determined as follows
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 subdivision
six of section 27-1407 of this title:
For the purposes of calculating the site preparation credit component
pursuant to paragraph two of subdivision (a) of section twenty-one of
the tax law, and the on-site groundwater remediation credit component
pursuant to paragraph four of subdivision (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 promulgated pursuant to subdivision six of section
27-1415 of this title, up to a maximum of fifty percent, as follows:
(a) soil cleanup for unrestricted use, the protection of groundwater
or the protection of ecological resources, the applicable percentage
shall be fifty percent;
A. 1160 5
(b) soil cleanup for residential use, the applicable percentage shall
be forty percent, except for Track 4 which shall be twenty-eight
percent;
(c) soil cleanup for commercial use, the applicable percentage shall
be thirty-three percent, except for Track 4 which shall be twenty-five
percent;
(d) soil cleanup for industrial use, the applicable percentage shall
be twenty-seven percent, except for Track 4 which shall be twenty-two
percent.
IN THE EVENT THE DEPARTMENT OR THE DEPARTMENT OF HEALTH CONCLUDES THAT
IT IS NECESSARY FOR THE APPLICANT TO PERFORM ADDITIONAL REMEDIAL WORK
NOT INCLUDED IN THE APPROVED REMEDIAL WORK PLAN, BUT WHICH THE DEPART-
MENT HAS CONCLUDED IS NECESSARY TO SATISFY THE TECHNICAL REQUIREMENTS OF
THE PROGRAM PURSUANT TO SECTION 27-1415 OF THIS TITLE, THE CERTIFICATE
OF COMPLETION WILL STILL BE ISSUED WITHIN THIRTY DAYS OF RECEIPT OF THE
FINAL ENGINEERING REPORT FOR THE WORK PERFORMED UNDER THE APPROVED REME-
DIAL ACTION WORK PLAN AND A SUPPLEMENTAL REMEDIAL ACTION WORK PLAN MUST
BE SUBMITTED INCLUDING A SCHEDULE FOR PERFORMANCE FOR ANY ADDITIONAL
ACTIONS THE DEPARTMENT OR THE DEPARTMENT OF HEALTH DEEM NECESSARY. IN
THE EVENT THE SUPPLEMENTAL WORK REQUIRED IN THE REMEDIAL ACTION WORK
PLAN IS NOT COMPLETED PURSUANT TO ANY SUPPLEMENTAL WORK PLAN, THE
DEPARTMENT MAY REOPEN THE CERTIFICATE OF COMPLETION PURSUANT TO THE
REOPENER IN SUBPARAGRAPH (I) OF PARAGRAPH (A) OF SUBDIVISION TWO OF
SECTION 27-1421 OF THIS TITLE AFTER ALL ADMINISTRATIVE JUDICIAL REVIEWS
HAVE BEEN EXHAUSTED.
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, AT WHICH TIME THE SUCCESSORS AND ASSIGNS
ASSUME ALL REMAINING RESPONSIBILITY FOR THE BROWNFIELD SITE. Further, a
certificate of completion may be modified or revoked by the commissioner
upon a finding that:
(d) There is good cause for such modification or revocation BASED ON
THE APPLICANT OR THEIR SUCCESSOR AND ASSIGNS FAILURE TO MAINTAIN THE
CONTROLS IN THE ENVIRONMENTAL EASEMENT OR ANY FUTURE CONTAMINATION ON OR
EMANATING FROM THE SITE.
S 7. The environmental conservation law is amended by adding a new
section 27-1437 to read as follows:
S 27-1437. UNCONTAMINATED HISTORIC FILL AND MIXED HISTORIC FILL
PROGRAMS.
THE DEPARTMENT OR ANY DELEGATED MUNICIPALITY IS AUTHORIZED TO CREATE A
BENEFICIAL USE DETERMINATION PROGRAM FOR THE REUSE AND RECYCLING OF
UNCONTAMINATED HISTORIC FILL AND THE MANAGEMENT OF MIXED HISTORIC FILL.
IN THE EVENT A MUNICIPALITY REQUESTS DELEGATION TO ADMINISTER SUCH A
BENEFICIAL USE DETERMINATION PROGRAM FOR UNCONTAMINATED HISTORIC FILL
AND MIXED HISTORIC FILL, THE MUNICIPALITY MUST PROPOSE A PROGRAM THAT
WILL BE SUBJECT TO APPROVAL BY THE DEPARTMENT. AT A MINIMUM, THE PROGRAM
MUST INCLUDE SAMPLING REQUIREMENTS DESIGNED TO FULLY CHARACTERIZE THE
NATURE OF THE MATERIAL, A PROCEDURE TO APPLY FOR AND RECEIVE APPROVAL
FOR EXCAVATION AND TRANSPORTATION OF SUCH MATERIAL FOR REUSE AS FILL ON
ANOTHER SITE PROVIDED SUCH MATERIAL IS REUSED IN A MANNER AND IN
LOCATIONS APPROPRIATE FOR SUCH REUSE. IN ADDITION THE DEPARTMENT SHALL
ISSUE A NO FURTHER ACTION LETTER TO THE PARTY ATTEMPTING TO USE SUCH
MATERIAL AND THE PROPOSED END USE DEPOSITION SITE OWNER PROVIDED THE
MATERIAL HAS BEEN PROPERLY REUSED. THE PROCESS FOR DETERMINING ACCEPT-
ANCE OF THIS MATERIAL AT THE END USE SITE GIVEN THE INTENDED USE WILL
CONSIDER A COMPARISON OF ANALYTICAL DATA FROM THE SIDEWALLS OF THE END
A. 1160 6
USE SITE OF FINAL DEPOSITION AND THE SOURCE SITE UNCONTAMINATED AND/OR
MIXED HISTORIC FILL MATERIAL. IF THE COMPARISON INDICATES THAT:
1. THE GROUP AND CATEGORY OF COMPOUNDS IDENTIFIED IN ANALYTICAL DATA
FROM BOTH SITES ARE SIMILAR ON BOTH SITES; AND
2. CONCENTRATIONS ARE SIMILAR IN THE SOURCE MATERIAL TO THE DEPOSITION
SITE AND WILL NOT CREATE A NEGATIVE IMPACT TO THE FINAL DISPOSAL SITE,
THEN, AND ONLY THEN, THE FILL CAN BE ACCEPTED FOR REUSE. THE NO FURTHER
ACTION LETTER BY THE DEPARTMENT SHALL CONFIRM THE MATERIAL HAS BEEN
PROPERLY REUSED AND NO FURTHER ACTION BY THE DEPARTMENT IS REQUIRED.
S 8. The environmental conservation law is amended by adding a new
section 27-1439 to read as follows:
S 27-1439. EXPEDITED REMEDIATION PROGRAM FOR MINIMALLY CONTAMINATED
SITES.
TO THE EXTENT THAT A PARTY DOES NOT DESIRE TO PARTICIPATE IN THE
BROWNFIELD CLEANUP PROGRAM, BUT DOES DESIRE THE LIABILITY LIMITATION
GRANTED UNDER SECTION 27-1421 OF THIS TITLE, SUCH PARTY MAY ELECT TO
PARTICIPATE IN AN EXPEDITED REMEDIATION PROGRAM RESERVED FOR MINIMALLY
CONTAMINATED SITES SUBJECT TO A STIPULATION AGREEMENT AND REMEDIAL WORK
PLAN SUBSEQUENT TO COMPLETION OF A SITE INVESTIGATION REPORT. THE SITES
ELIGIBLE TO THIS PROGRAM ARE DEFINED AS SITES WHERE: 1. THE SUSPECT
CONTAMINATION IS NOT KNOWN BUT THE HISTORIC SOURCE OF CONTAMINATION IS
NOT LIKELY TO HAVE GENERATED SIGNIFICANT LEVELS OF CONTAMINATION, OR 2.
THE CONTAMINATION LEVELS ARE KNOWN BUT ARE MINIMAL. CONTAMINATION LEVELS
ARE CONSIDERED MINIMAL IF THE ANTICIPATED COST OF REMEDIATION OF THE
CONTAMINANT OR CONTAMINATED HISTORIC FILL IS MERELY CONSIDERED BY THE
PARTY TO BE A COST OF CONSTRUCTION RATHER THAN A REMEDIAL COST. THE
DEPARTMENT SHALL DEVELOP REGULATIONS TO ESTABLISH THE EXPEDITED PROGRAM,
WHICH WILL INCLUDE PROCEDURES THAT ARE LESS FORMAL THAN THE BROWNFIELD
CLEANUP PROGRAM BUT PROTECTIVE OF THE PUBLIC HEALTH AND THE ENVIRONMENT.
THE INTENT OF THIS PROGRAM IS TO ENABLE PROJECTS TO PROCEED ON MINIMALLY
CONTAMINATED SITES IN AN EXPEDITED FASHION WITH ALL NECESSARY DEPARTMENT
OVERSIGHT IN EXCHANGE FOR A STATE LIABILITY LIMITATION GRANTED AT THE
COMPLETION OF THE REQUIRED REMEDIATION.
S 9. Subdivision 2 of section 71-3607 of the environmental conserva-
tion law, as added by section 2 of part A of chapter 1 of the laws of
2003, is amended to read as follows:
2. Whenever an affected local government receives an application for a
building permit or any other application affecting [land use or develop-
ment of land] ANY OF THE INSTITUTIONAL AND/OR ENVIRONMENTAL CONTROLS IN
THE EASEMENT INCLUDING CHANGE OF USE, CHANGE OR IMPACT ON ANY SUBSURFACE
CONDITIONS OR CHANGE OR IMPACT ON ANY INDOOR AIR RELATED SYSTEMS INCLUD-
ING VAPOR MITIGATION SYSTEMS OR HEATING AND COOLING SYSTEMS, that is
subject to an environmental easement and that may relate to or impact
such easement, the affected local government shall notify the department
and refer such application to the department. The department shall eval-
uate whether the application is consistent with the environmental ease-
ment and shall notify the affected local government of its determination
in a timely fashion, considering the time frame for the local govern-
ment's review of the application. The affected local government shall
not approve the application until it receives approval from the depart-
ment. THE DEPARTMENT AND THE LOCAL GOVERNMENT SHALL DEVELOP AN EXPE-
DITED PROCESS FOR IDENTIFYING THOSE PERMITS THAT COULD IN ANY MANNER
AFFECT AN ENVIRONMENTAL EASEMENT FROM THOSE PERMITS THAT COULD NOT
POSSIBLY HAVE ANY IMPACT. THE DEPARTMENT WILL NOT NEED TO APPROVE ANY
PERMITS THAT ARE UNRELATED TO ENVIRONMENTAL EASEMENT INSTITUTIONAL OR
ENGINEERING CONTROLS.
A. 1160 7
S 10. Paragraph a of subdivision 3 and subdivisions 4 and 5 of section
970-r of the general municipal law, paragraph a of subdivision 3 and
subdivision 4 as amended by chapter 390 of the laws of 2008 and subdivi-
sion 5 as added by section 1 of part F of chapter 1 of the laws of 2003,
are amended to read as follows:
a. Within the limits of appropriations therefor, the secretary is
authorized to provide, on a competitive basis, financial assistance to
municipalities, to community based organizations, to community boards,
or to municipalities and community based organizations acting in cooper-
ation to prepare a nomination for designation of a brownfield opportu-
nity area. A NOMINATION STUDY MUST INCLUDE SUFFICIENT INFORMATION TO
DESIGNATE THE BROWNFIELD OPPORTUNITY AREA DISTRICT. THE CONTENTS OF THE
NOMINATION STUDY SHALL BE DEVELOPED BASED ON AN AREA-WIDE ASTM PHASE I
SITE INVESTIGATION STUDY DOCUMENTING THE HISTORIC USES IN THE DISTRICT.
A NOMINATION STUDY IS NOT EQUIVALENT TO AND MAY NOT SERVE AS A MASTER
PLAN OR OTHER EQUIVALENT LAND USE STUDY. SUCH POSSIBLE MASTER PLAN OR
EQUIVALENT LAND USE STUDY MAY BE SEPARATELY DEVELOPED UNDER THIS PROGRAM
AS AN IMPLEMENTATION STRATEGY THAT MAY BE ATTACHED TO A FINAL BROWNFIELD
OPPORTUNITY AREA PLAN. NO SUCH NOMINATION STUDY SHALL SUPERSEDE AN
EXISTING MASTER PLAN OR EQUIVALENT LAND USE STUDY. Such financial
assistance shall not exceed ninety percent of the costs of such nomi-
nation for any such area.
4. Designation of brownfield opportunity area. Upon completion of a
nomination for designation of a brownfield opportunity area, it shall be
forwarded by the applicant to the secretary, who shall determine whether
it is consistent with the provisions of this section. If the secretary
determines that the nomination is consistent with the provisions of this
section, the brownfield opportunity area shall be designated. A NOMI-
NATION STUDY DOES NOT REQUIRE REVIEW UNDER THE STATE ENVIRONMENTAL QUAL-
ITY REVIEW ACT PURSUANT TO ARTICLE EIGHT OF THE ENVIRONMENTAL CONSERVA-
TION LAW. IN THE EVENT THE MUNICIPALITY AND/OR COMMUNITY BASED
ORGANIZATION ELECT TO DEVELOP IMPLEMENTATION STRATEGIES, INCLUDING BUT
NOT LIMITED TO A MASTER PLAN OR URBAN RENEWAL PLAN, REVIEW UNDER THE
STATE ENVIRONMENTAL QUALITY REVIEW ACT PURSUANT TO ARTICLE EIGHT OF THE
ENVIRONMENTAL CONSERVATION LAW IS REQUIRED. If the secretary determines
that the nomination is not consistent with the provisions of this
section, the secretary shall make recommendations in writing to the
applicant of the manner and nature in which the nomination should be
amended.
5. Priority and preference. The designation of a brownfield opportu-
nity area pursuant to this section is intended to serve as a planning
tool. It alone shall not impose any new obligations on any property or
property owner. To the extent authorized by law, projects in brownfield
opportunity areas designated pursuant to this section shall receive a
priority and preference when considered for financial assistance pursu-
ant to articles fifty-four and fifty-six of the environmental conserva-
tion law. To the extent authorized by law, projects in brownfield oppor-
tunity areas designated pursuant to this section may receive a priority
and preference when considered for financial assistance pursuant to any
other state, federal or local law. ANY STATE AGENCY WITH PROGRAMS THAT
COULD ASSIST DESIGNATED BROWNFIELD OPPORTUNITY AREAS SHALL CONTACT SUCH
MUNICIPALITIES AND/OR COMMUNITY BASED ORGANIZATIONS SUBSEQUENT TO A
DESIGNATION AND SHALL OFFER ASSISTANCE TO ACCESS ANY POSSIBLE SUPPORTING
PROGRAMS OR FUNDING SOURCES.
S 11. This act shall take effect immediately; provided that the amend-
ments to paragraph a of subdivision 3 and subdivision 4 of section 970-r
A. 1160 8
of the general municipal law made by section ten of this act shall take
effect on the same date and in the same manner as chapter 390 of the
laws of 2008, takes effect.