S. 4422 2
410. LIABILITY LIMITATION AND INDEMNIFICATION.
411. CHANGE OF USE.
412. CONTINUATION OF THE STATE SUPERFUND MANAGEMENT BOARD.
413. COST OF DEMOLITION OF STRUCTURES ON VARIOUS SITES.
414. INDEMNIFICATION FOR RESPONSIBLE DEVELOPER.
415. MUNICIPALITY PARTICIPATION.
S 400. LEGISLATIVE FINDINGS AND DECLARATIONS. THE LEGISLATURE FINDS
THAT THE ECONOMIC DEVELOPMENT OF THE STATE AND ITS VARIOUS SUBDIVISIONS
IS SERIOUSLY IMPAIRED BY THE PRESENCE OF PROPERTIES THAT ARE, OR ARE
SUSPECTED OF BEING, CONTAMINATED WITH HAZARDOUS WASTES OR SUBSTANCES,
INCLUDING PROPERTIES THAT ARE COMMONLY KNOWN AS BROWNFIELD SITES. THE
LEGISLATURE FINDS THAT MANY OF THESE SITES, WHILE LOCATED IN AREAS THAT
WERE USED FOR INDUSTRIAL OR OTHER PURPOSES WHERE CONTAMINATES WERE
EMPLOYED OR USED ON SUCH SITES FOR MANUFACTURING, AGRICULTURAL OR STOR-
AGE PURPOSES, ARE ALSO SITES THAT WOULD BE IDEAL FOR THE LOCATION OF NEW
INDUSTRIAL, MANUFACTURING, SERVICE, STORAGE, RESIDENTIAL PROJECTS OR
OTHER PURPOSES BECAUSE OF THEIR LOCATION, INCLUDING THE CLOSE PROXIMITY
OF TRANSPORTATION, WATER, POWER RESOURCES OR OTHER EXISTING INFRASTRUC-
TURE.
THE LEGISLATURE FURTHER FINDS THAT OWNERS OF SUCH PROPERTIES OR POSSI-
BLE DEVELOPERS, INCLUDING MUNICIPALITIES, ARE FAILING TO UTILIZE, DEVEL-
OP OR REDEVELOP SUCH PROPERTIES OUT OF FEAR THAT THE OWNERSHIP OF ANY
SUCH PROPERTIES MIGHT FORCE UPON THEM EXTENSIVE COSTS, NOT ONLY FOR
REMEDIATING SUCH PROPERTIES, BUT ALSO FROM POSSIBLE EXPOSURE TO GOVERN-
MENTAL OR THIRD PARTY AND/OR PRIVATE PARTY LAWSUITS ARISING FROM PRESENT
OR FUTURE CLAIMS OF INJURY FROM CONTAMINATION ALLEGED TO BE ASSOCIATED
WITH SUCH PROPERTIES.
THE LEGISLATURE FURTHER FINDS THAT THE LOSS OF THE USE OF SUCH PROPER-
TIES HAS AN ADVERSE IMPACT UPON THE ABILITY OF THE COMMUNITIES WHERE
SUCH PROPERTIES ARE LOCATED TO ATTRACT ENTITIES THAT WOULD BRING EMPLOY-
MENT AND OTHER ECONOMIC DEVELOPMENT BENEFITS TO SUCH COMMUNITIES. THE
LOSS OF THE USE OF THESE PROPERTIES ALSO ADVERSELY IMPACTS THE TAX BASE
OF SUCH COMMUNITIES, IMPAIRING THEIR ABILITY TO DELIVER THE MUNICIPAL
SERVICES THEY ARE REQUIRED TO DELIVER. THE LEGISLATURE FURTHER FINDS
THAT THE IMPAIRMENT OF SUCH LOCALITIES TO ATTRACT DEVELOPMENT AND
INCREASE THEIR TAX BASE REQUIRES THEM TO SEEK FURTHER ASSISTANCE FROM
THE STATE WHICH IN TURN REDUCES THE STATE'S ABILITY TO FURTHER REDUCE
ITS TAX BURDEN AND ITS OWN ABILITY TO ATTRACT MORE DEVELOPMENT WITHIN
THE STATE GENERALLY.
THE LEGISLATURE ALSO FINDS THAT THE EARLIER ANY PROBLEM OF CONTAM-
INATION OF PROPERTY WITHIN THE STATE THAT MIGHT OR MIGHT BE SUSPECTED OF
ADVERSELY AFFECTING THE ENVIRONMENT AND THE HEALTH OF THE PEOPLE OF THIS
STATE IS INVESTIGATED AND IF FOUND TO BE A FACT, REMEDIATED, THE BETTER
IT WILL BE FOR THE HEALTH AND ENVIRONMENT OF THE PEOPLE WITHIN OR VISIT-
ING THIS STATE AND WILL ALSO PROVIDE A GREATER OPPORTUNITY TO DEVELOP
SUCH PROPERTIES, PROVIDE MORE WORK CIRCUMSTANCES FOR THE PEOPLE OF THIS
STATE, AND ASSIST GREATLY IN ECONOMIC DEVELOPMENT, NOT MERELY OF THE
LOCALITY WHERE SUCH PROPERTIES HAVE BEEN DEVELOPED, BUT FOR THE STATE AS
A WHOLE.
THE LEGISLATURE FINDS THAT WHILE THOSE WHO WOULD CLEAN UP AND DEVELOP
SUCH PROPERTIES WANT TO BE ASSURED THAT THE COST THAT THEY WILL INCUR
WILL BE LIMITED TO THE COST, IF ANY, OF REMEDIATING THE PROPERTY, SUFFI-
CIENTLY TO PROTECT THE HEALTH AND THE ENVIRONMENT OF THE PEOPLE OF THIS
STATE, TAKING INTO CONSIDERATION THE PURPOSE FOR WHICH THE PROPERTY WILL
BE USED, AND THAT IF THEY ENTER INTO AN AGREEMENT WITH THE STATE TO DO
SUCH REMEDIATION AND ADHERE TO THAT AGREEMENT THAT THEY WILL NOT BE
S. 4422 3
SUBJECTED TO PAY FOR FURTHER REMEDIATION IN THE FUTURE NOT REQUIRED BY
THE AGREEMENT OR THIS ARTICLE OR TO BE SUBJECT TO LAWSUITS BY THE STATE
OR ANYONE ELSE FOR CLAIMS OF INJURY FROM CONTAMINATION FROM SUCH PROPER-
TY EXCEPT CLAIMS FOR DAMAGES FROM THEIR OWN ACTIVITIES SUBSEQUENT TO
SUCH REMEDIATION AND EXCEPT THAT NOTHING IN THIS SECTION SHALL BAR
PRIVATE CLAIMS AGAINST A RESPONSIBLE PARTY FOR INJURIES CLAIMED TO HAVE
BEEN SUFFERED FROM CONTAMINATION FOR WHICH SUCH PARTIES WOULD HAVE BEEN
LIABLE PRIOR TO SUCH CLEANUP.
THE LEGISLATURE FURTHER FINDS THAT THE ENVIRONMENTAL COMMUNITY, ON THE
OTHER HAND, WANTS THE STATE, REGARDLESS OF THE INTENDED USE OF THE PROP-
ERTY TO HAVE THE PROPERTY REMEDIATED TO AS CLEAN A STANDARD AS POSSIBLE
PURSUANT TO PARAGRAPH D OF SUBDIVISION FIVE OF SECTION 27-1313 OF THE
ENVIRONMENTAL CONSERVATION LAW AS IT EXISTED ON JANUARY FIRST, TWO THOU-
SAND NINE, SO THAT SHOULD THE USE CHANGE OR THE SCIENTIFICALLY ACCEPTA-
BLE LEVELS OF EXPOSURE TO CERTAIN TOXIC SUBSTANCES INCREASE THAT SUCH
PROPERTIES WILL NOT PRESENT A DANGER TO HEALTH AND ANY SUCH PROBLEM WILL
BE REMEDIATED OR ELIMINATED.
THE LEGISLATURE FURTHER FINDS THAT THE STANDARDS SET FOR THE CLEANUP
OF CONTAMINATION TODAY ARE BASED ON THE BEST SCIENTIFIC ADVICE CURRENTLY
AVAILABLE BUT THAT NO ONE CAN PREDICT WHAT SCIENCE MAY TURN UP IN THE
FUTURE TO REQUIRE EITHER THAT NEWLY DISCOVERED TOXINS MUST BE REMEDIATED
OR GREATER LEVELS OF REMEDIATION OF VARIOUS TOXINS MAY BE DISCOVERED TO
BE NEEDED TO PROTECT HUMAN HEALTH AND THE ENVIRONMENT AND A SYSTEM OF
LAND USE CONTROLS TO MONITOR SUCH EVENTUALITIES AND BE ABLE TO ADDRESS
SUCH EVENTUALITIES WITHOUT REQUIRING DEVELOPERS OR OTHERS WHO ARE ACTING
IN GOOD FAITH TO COMPLY WITH THE REQUIREMENTS OF THE LAW TO BE PENALIZED
FOR SUCH CHANGED CONDITIONS.
THE LEGISLATURE THEREFORE, DETERMINES THAT IN ORDER TO ADVANCE THE
ECONOMIC DEVELOPMENT OF THIS STATE AND PROTECT THE HUMAN HEALTH AND
ENVIRONMENT OF THE PEOPLE OF THE STATE, A DIVISION OF DEVELOPMENT
ASSISTANCE, LAND USE CONTROLS AND ENVIRONMENTAL INDEMNIFICATION SHOULD
BE ESTABLISHED WITHIN THE DEPARTMENT TO IMPLEMENT A PROGRAM OF INDEMNI-
FICATION FOR DEVELOPERS OF SUCH PROPERTIES, AND INDEMNIFICATION OF THE
ENVIRONMENTAL INTEGRITY OF SUCH PROPERTIES, INCLUDING OVERSIGHT OF LAND
USE CONTROLS.
S 401. DEFINITIONS. 1. "DIVISION" SHALL MEAN THE DIVISION OF DEVELOP-
MENT ASSISTANCE, ENVIRONMENTAL INDEMNIFICATION AND LAND USE CONTROL AS
ESTABLISHED BY SECTION FOUR HUNDRED TWO OF THIS ARTICLE.
2. "DEVELOPER" SHALL MEAN AN INDIVIDUAL, A PARTNERSHIP, A CO-PARTNER-
SHIP, A LIMITED LIABILITY COMPANY, A FOR PROFIT CORPORATION OR A
NOT-FOR-PROFIT CORPORATION OR A GOVERNMENTAL ENTITY INCLUDING MUNICI-
PALITIES, AGENCIES, AUTHORITIES OR OTHER PUBLIC CORPORATIONS.
3. "OFFICE OF INDEMNIFICATION" SHALL MEAN THE OFFICE OF INDEMNIFICA-
TION CREATED BY SECTION FOUR HUNDRED FOUR OF THIS ARTICLE AND SHALL
INCLUDE ANY INDEMNIFICATION COMPANY, INSURANCE PROVIDER, CASUALTY OR
BONDING COMPANY ACTING ON BEHALF OF SUCH OFFICE OF INDEMNIFICATION.
4. "LAND USE CONTROLS" SHALL MEAN ENGINEERING, AND/OR INSTITUTIONAL
CONTROLS (INCLUDING DEED RESTRICTIONS).
5. EXCEPT TO THE EXTENT INCONSISTENT WITH THIS ARTICLE, ALL DEFI-
NITIONS OF HAZARDOUS WASTE, HAZARDOUS SUBSTANCES, BROWNFIELDS OR OTHER
DEFINITIONS AFFECTING THE ENVIRONMENT OR AN ENVIRONMENTAL STANDARD
ESTABLISHED IN THE ENVIRONMENTAL CONSERVATION LAW OR THE PUBLIC HEALTH
LAW NOW OR AS AMENDED FROM TIME TO TIME, OR THE RULES AND REGULATIONS OF
THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION OR THE DEPARTMENT OF HEALTH
APPLICABLE THERETO SHALL BE DEEMED TO APPLY TO THE MATTERS TO BE CONSID-
ERED BY THE DIVISION, EXCEPT THAT THE DIVISION SHALL HAVE STANDING TO
S. 4422 4
CHALLENGE ANY SUCH RULE OR REGULATION OF EITHER DEPARTMENT IN AN ADMIN-
ISTRATIVE HEARING IN SUCH DEPARTMENT PROMULGATING SUCH RULE OR REGU-
LATION OR IN A COURT OF LAW AFTER A DETERMINATION IS MADE AS A RESULT OF
SUCH DEPARTMENTAL HEARING.
S 402. DIVISION OF DEVELOPMENT ASSISTANCE, ENVIRONMENTAL INDEMNIFICA-
TION AND LAND USE CONTROL. THE COMMISSIONER, IN CONCERT WITH THE
COMMISSIONER OF ENVIRONMENTAL CONSERVATION, THE COMMISSIONER OF HEALTH,
THE STATE COMPTROLLER AND THE DIRECTOR OF THE BUDGET, SHALL ESTABLISH
WITHIN THE DEPARTMENT, A DIVISION OF DEVELOPMENT ASSISTANCE, ENVIRON-
MENTAL INDEMNIFICATION AND LAND USE CONTROL WITH AN EXECUTIVE DIRECTOR
AND SUCH OTHER PERSONNEL, FROM THE DEPARTMENT, THE DEPARTMENT OF ENVI-
RONMENTAL CONSERVATION, THE DEPARTMENT OF HEALTH, THE DEPARTMENT OF
AUDIT AND CONTROL AND THE DIVISION OF THE BUDGET AS MAY BE REQUIRED TO
PERFORM THE DUTIES OF THE DIVISION.
S 403. EXECUTIVE BOARD. THE DIVISION SHALL HAVE AN EXECUTIVE BOARD
CONSISTING OF THE COMMISSIONER, WHO SHALL ACT AS CHAIR, THE COMMISSIONER
OF ENVIRONMENTAL CONSERVATION, THE COMMISSIONER OF HEALTH, THE STATE
COMPTROLLER AND THE DIRECTOR OF THE BUDGET. EXCEPT AS MAY OTHERWISE BE
PROVIDED IN THIS ARTICLE, EACH BOARD MEMBER SHALL HAVE AN EQUAL VOTE IN
ANY EXECUTIVE BOARD DECISION.
S 404. ESTABLISHMENT OF A PLAN OF INDEMNIFICATION AND AN OFFICE OF
INDEMNIFICATION. THE DIVISION SHALL HAVE AN OFFICE OF INDEMNIFICATION
AND ESTABLISH A PLAN TO CARRY OUT THE INDEMNIFICATION PROVISIONS OF THIS
ARTICLE. IN SO DOING THE DIVISION MAY CONTRACT OUT ONE OR MORE DUTIES OF
THE OFFICE SUCH AS ACTUARIAL STUDIES, RATE PROJECTIONS, INSPECTION
PROGRAMS, AND CLAIMS ADJUSTMENT WITH ONE OR MORE INDEMNIFICATION, INSUR-
ANCE, CASUALTY OR BONDING COMPANIES AUTHORIZED TO DO BUSINESS IN THE
STATE, AND WITH OFFICES IN THE STATE OR THE STATE INSURANCE FUND, FOR
ITS PROGRAM OF INDEMNIFICATION OF ANY DEVELOPER IN ACCORDANCE WITH THE
TERMS OF THIS ARTICLE THAT UNDERTAKES A PROJECT TO AND DOES REMEDIATE
ANY PROPERTY IN THE STATE TO THE LEVEL REQUIRED BY THE STATE FOR THE
INTENDED USE OF THE PROPERTY IN ACCORDANCE WITH A PLAN AGREED TO BY THE
DEPARTMENT, THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION AND THE DEPART-
MENT OF HEALTH.
S 405. ENVIRONMENTAL REMEDIATION PROJECTS PURSUANT TO THIS ARTICLE. 1.
THE DIVISION WITH THE APPROVAL OF THE EXECUTIVE BOARD, PROVIDED THE
COMMISSIONER OF ENVIRONMENTAL CONSERVATION AND THE COMMISSIONER OF
HEALTH VOTE IN THE AFFIRMATIVE, MAY ENTER INTO A CONTRACT WITH A DEVEL-
OPER TO UNDERTAKE AN ENVIRONMENTAL REMEDIATION PROJECT.
2. IN ADDITION TO SUCH OTHER TERMS AND CONDITIONS AS THE DIVISION MAY
DEEM APPROPRIATE, SUCH CONTRACT SHALL PROVIDE AS FOLLOWS:
(A) AN ESTIMATE OF THE COST OF SUCH PROJECT AS DETERMINED BY THE DIVI-
SION, THE COMMISSIONER OF ENVIRONMENTAL CONSERVATION AND THE COMMISSION-
ER OF HEALTH;
(B) AN AGREEMENT BY THE DEVELOPER TO PROCEED EXPEDITIOUSLY WITH AND
COMPLETE SUCH PROJECT IN ACCORDANCE WITH SUCH AN AGREEMENT BY THE DEVEL-
OPER;
(C) AN AGREEMENT BY THE DEVELOPER THAT IT SHALL PREPARE AND IMPLEMENT
A PUBLIC PARTICIPATION PLAN PRIOR TO REMEDIAL ACTIVITIES UNDERTAKEN
PURSUANT TO THIS SECTION. THE PLAN SHALL PROVIDE OPPORTUNITIES FOR
EARLY, INCLUSIVE PARTICIPATION PRIOR TO THE SELECTION OF A PREFERRED
COURSE OF ACTION, SHALL FACILITATE COMMUNICATION, INCLUDING DIALOGUE
AMONG THE DEVELOPER, THE MUNICIPALITY WHERE THE REMEDIATION PROJECT
SHALL TAKE PLACE, THE DIVISION AND THE INTERESTED PUBLIC, AND SHALL
PROVIDE TIMELY AND ACCESSIBLE DISCLOSURE OF INFORMATION. AT A MINIMUM,
THE DESIGN OF THE PLAN SHALL TAKE INTO ACCOUNT THE SCOPE AND SCALE OF
S. 4422 5
THE PROPOSED ENVIRONMENTAL REMEDIATION PROJECT, LOCAL INTEREST AND OTHER
RELEVANT FACTORS. THE PLAN SHALL ALSO PROVIDE FOR: ADEQUATE PUBLIC
NOTICE OF THE AVAILABILITY OF A DRAFT REMEDIAL PLAN; A FORTY-FIVE DAY
PERIOD FOR SUBMISSION OF WRITTEN COMMENTS; A PUBLIC HEARING ON SUCH PLAN
IF SUBSTANTIVE ISSUES ARE RAISED BY MEMBERS OF THE AFFECTED COMMUNITY;
AND TECHNICAL ASSISTANCE IF SO REQUESTED BY MEMBERS OF THE AFFECTED
COMMUNITY. PROVIDED, HOWEVER, THAT THE REQUIREMENTS OF THIS PARAGRAPH
SHALL NOT APPLY TO INTERIM REMEDIAL MEASURES UNDERTAKEN AS PART OF AN
ENVIRONMENTAL REMEDIATION PROJECT TO ADDRESS EMERGENCY SITE CONDITIONS.
IN SUCH INSTANCE, THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION OR THE
DEPARTMENT OF HEALTH OR SUCH PERSONS IMPLEMENTING THE INTERIM REMEDIAL
MEASURE OR MAKING THE REQUEST SHALL CONDUCT PUBLIC PARTICIPATION ACTIV-
ITIES AS SUCH DEPARTMENTS OR THE DIVISION DEEM NECESSARY AND APPROPRIATE
UNDER SUCH CIRCUMSTANCES;
(D) AN AGREEMENT BY THE DEVELOPER THAT IT SHALL PUT INTO PLACE ANY
ENGINEERING AND/OR INSTITUTIONAL CONTROLS (INCLUDING DEED RESTRICTIONS)
THAT THE DIVISION, THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION AND THE
DEPARTMENT OF HEALTH MAY DEEM NECESSARY TO ALLOW THE CONTEMPLATED USE TO
PROCEED, THAT SUCH ENGINEERING AND/OR INSTITUTIONAL CONTROLS SHALL BE
BINDING ON SUCH DEVELOPER, ANY SUCCESSOR IN TITLE, AND ANY LESSEES AND
THAT ANY SUCCESSORS IN TITLE AND ANY LESSEES CANNOT CHALLENGE STATE OR
DIVISION ENFORCEMENT OF SUCH CONTROLS;
(E) IN THE EVENT THAT ENGINEERING CONTROLS AND/OR INSTITUTIONAL
CONTROLS ARE NECESSARY, THE DEVELOPER AND ITS SUCCESSORS IN TITLE SHALL
AGREE TO DEVELOP A PLAN APPROVED BY THE DIVISION, WITH THE CONSENT OF
THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION AND THE DEPARTMENT OF
HEALTH, WHICH ENSURES THAT SUCH ENGINEERING AND/OR INSTITUTIONAL
CONTROLS BE CONTINUALLY MAINTAINED IN THE MANNER REQUIRED BY THE PLAN.
FAILURE TO IMPLEMENT SUCH PLAN OR MAINTAIN SUCH CONTROLS SHALL CONSTI-
TUTE A VIOLATION OF SUCH CONTRACT AND SHALL TERMINATE FOR THE DURATION
OF SUCH FAILURE THE PROTECTION AFFORDED UNDER THIS ARTICLE;
(F) IN THE EVENT THAT DEED RESTRICTIONS ARE REQUIRED, SUCH DEVELOPER
SHALL AGREE TO CAUSE SUCH DEED RESTRICTIONS TO BE RECORDED AND INDEXED
AS DECLARATIONS OF RESTRICTIONS IN THE OFFICE OF THE RECORDING OFFICER
OF THE COUNTY OR COUNTIES WHERE THE REAL PROPERTY SUBJECT TO SUCH ENVI-
RONMENTAL REMEDIATION PROJECT IS LOCATED IN THE MANNER PRESCRIBED BY
ARTICLE NINE OF THE REAL PROPERTY LAW. SUCH DECLARATION OF RESTRICTION
SHALL CONTAIN THE NAME OF THE OWNER OF THE SECTION, BLOCK, AND LOT
NUMBER OF SUCH PROPERTY; AND
(G) A PROVISION THAT EXEMPTS A DEVELOPER AND ANY SUCCESSOR IN TITLE
FROM THE REQUIREMENT TO OBTAIN ANY STATE OR LOCAL PERMIT OR OTHER
AUTHORIZATION FOR ANY ACTIVITY NEEDED TO IMPLEMENT SUCH PROJECT THAT IS
CONDUCTED ON THE REAL PROPERTY SUBJECT TO SUCH PROJECT SO LONG AS THE
ACTIVITY IS CONDUCTED IN A MANNER WHICH SATISFIES ALL SUBSTANTIVE TECH-
NICAL REQUIREMENTS APPLICABLE TO LIKE ACTIVITY CONDUCTED PURSUANT TO A
PERMIT.
S 406. CRITERIA OF PROGRAM OF INDEMNIFICATION. THE PROGRAM OF INDEMNI-
FICATION FOR ANY DEVELOPER SHALL BE THAT THE DEVELOPER UNDERTAKES TO AND
DOES REMEDIATE ANY PROPERTY TO THE ENVIRONMENTAL REQUIREMENTS FOR THE
INTENDED USE OF THE PROPERTY IN ACCORDANCE WITH THE PLAN, WHICH IS
PROTECTIVE OF HUMAN HEALTH AND THE ENVIRONMENT, AGREED TO BY THE DEPART-
MENT, DIVISION, DEPARTMENT OF ENVIRONMENTAL CONSERVATION AND DEPARTMENT
OF HEALTH.
S 407. APPLICATION OF INDEMNIFICATION AND LAND USE CONTROLS. 1. IF THE
PLAN OF REMEDIATION IS LESS THAN ONE OF COMPLETE REMEDIATION AND ANY
LAND USE CONTROLS ARE REQUIRED, IN ADDITION TO ANY OTHER POWERS THE
S. 4422 6
DEPARTMENT, THE DIVISION, THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION
OR THE DEPARTMENT OF HEALTH MAY POSSESS BY OPERATION OF LAW, THE DIVI-
SION OR ITS OFFICE OF INDEMNIFICATION SHALL HAVE THE RIGHT AND SHALL
MAKE AT LEAST ONE ANNUAL ANNOUNCED INSPECTION AND ONE ANNUAL UNANNOUNCED
INSPECTION OF SUCH PROPERTY TO EVALUATE THE EFFECTIVENESS OF SUCH LAND
USE CONTROLS AND MAY INSPECT SUCH LAND USE CONTROLS AT ANY OTHER TIME AS
IT DEEMS NECESSARY. IN THE EVENT SUCH CONTROLS ARE NOT WORKING OR FOR
ANY OTHER REASON THE REMEDIATION IS NOT EFFECTIVE AS SET FORTH IN THE
AGREEMENT BETWEEN THE DEVELOPER AND THE DIVISION, THE STATE SHALL
REQUIRE THE DEVELOPER (UNLESS OTHERWISE INDEMNIFIED PURSUANT TO SECTION
FOUR HUNDRED TEN OF THIS ARTICLE), OR IF THE DEVELOPER IS NOT RESPONSI-
BLE FOR THE FAILURE OF SUCH CONTROLS BECAUSE OF THE ACT OF A THIRD
PARTY, THEN SUCH RESPONSIBLE THIRD PARTY TO REMEDIATE THE PROPERTY, AND
IF THE DEVELOPER WHO IS NOT INDEMNIFIED PURSUANT TO THIS ARTICLE OR THE
THIRD PARTY RESPONSIBLE FOR THE FAILURE OF SUCH CONTROLS AND FURTHER
CONTAMINATION FAILS OR REFUSES TO CORRECT THE LAND USE CONTROL AND REME-
DIATE THE PROPERTY WITHIN THE TIME LIMIT SET BY THE DIVISION, THE DIVI-
SION SHALL REFER THE MATTER TO THE DEPARTMENT OF ENVIRONMENTAL CONSERVA-
TION AND THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION SHALL IMMEDIATELY
UNDERTAKE TO REMEDIATE THE PROPERTY PURSUANT TO SECTION 27-1313 OF THE
ENVIRONMENTAL CONSERVATION LAW WITH ITS STAFF AND ITS STANDBY CONTRAC-
TORS FOR SUCH REMEDIATION WORK, AND THE COST OF SUCH WORK INCLUDING THE
DEPARTMENT'S OVERSIGHT AND MANAGEMENT SHALL BE PAID FROM THE INDEMNIFI-
CATION FUND PROVIDED BY THIS ARTICLE; PROVIDED, HOWEVER THAT THE LEVEL
OF CLEAN UP SHALL BE THE LEVEL REQUIRED FOR PURPOSE OF THE USE OF THE
PROPERTY PURSUANT TO THE AGREEMENT BETWEEN THE DEVELOPER AND THE DIVI-
SION MADE PURSUANT TO THIS ARTICLE AND NOT THE LEVEL REQUIRED BY PARA-
GRAPH D OF SUBDIVISION FIVE OF SECTION 27-1313 OF THE ENVIRONMENTAL
CONSERVATION LAW AS IT EXISTED ON JANUARY FIRST, TWO THOUSAND NINE. THE
COST OF CORRECTING THE LAND USE CONTROLS AND REMEDIATION IF DONE PURSU-
ANT TO THIS SECTION SHALL BE A CHARGE AGAINST THE PARTY CAUSING SUCH
PROBLEM UNLESS OTHERWISE INDEMNIFIED UNDER THIS ARTICLE AND THE STATE ON
BEHALF OF THE INDEMNIFICATION FUND MAY INSTITUTE A CLAIM OR CAUSE OF
ACTION FOR PAYMENT AGAINST SUCH DEVELOPER OR PARTY IN THE SUPREME COURT
OF THIS STATE FOR RECOVERY OF SUCH COSTS FROM SUCH PARTY.
2. IF THE PLAN OF REMEDIATION IS ONE THAT REQUIRES COMPLETE REMEDI-
ATION OR OTHERWISE IS NOT SUBJECT TO LAND USE CONTROL REQUIREMENTS, THE
OFFICE OF INDEMNIFICATION SHALL HAVE THE RIGHT AND THE DUTY TO INSPECT
SUCH PROPERTY FROM TIME TO TIME TO OBSERVE AND REPORT IF THERE ARE ANY
CHANGE OF CONDITIONS THAT REQUIRE REMEDIATION. IF THE REPORT FINDS THAT
BECAUSE OF CHANGED CONDITIONS FURTHER REMEDIATION IS NEEDED AND THE
DEVELOPER OR ITS SUCCESSOR IN TITLE IS INDEMNIFIED UNDER THIS ARTICLE,
THE OFFICE OF INDEMNIFICATION SHALL NOTIFY SUCH PARTY AND THE DEPARTMENT
OF ENVIRONMENTAL CONSERVATION, THE DEPARTMENT OF HEALTH AND THE DIVISION
AND ENTER INTO AN AGREEMENT WITH THE DEVELOPER OR THE SUCCESSOR IN TITLE
TO REMEDIATE SUCH PROPERTY THROUGH THE DEPARTMENT OF ENVIRONMENTAL
CONSERVATION'S STANDBY CONTRACTORS AT THE EXPENSE OF THE OFFICE OF
INDEMNIFICATION. IF THE CONTAMINATION WAS THE RESULT OF THE ACTS OF THE
DEVELOPER OR ITS SUCCESSOR IN INTEREST AFTER THE REMEDIATION PROJECT
COVERED BY THE AGREEMENT BETWEEN THE DEVELOPER AND THE DIVISION AND IS
NOT COVERED BY THE INDEMNIFICATION SET FORTH IN THIS ARTICLE THEN THE
COST OF SUCH A REMEDIATION SHALL BE BORNE BY THE RESPONSIBLE PARTY.
S 408. COSTS OF INDEMNIFICATION. TO DEFRAY THE COST OF INDEMNIFICA-
TION, AN ACTUARIAL STUDY SHALL BE MADE BY THE OFFICE OF INDEMNIFICATION
AND A SURCHARGE SHALL BE ADDED TO THE COST OF THE REMEDIATION IN THE
AGREEMENT REFERRED TO IN SECTION FOUR HUNDRED FIVE OF THIS ARTICLE.
S. 4422 7
SUCH SURCHARGE MAY BE IN THE FORM OF A ONE TIME LUMP SUM PAYMENT OR A
YEARLY PAYMENT AS DETERMINED BY THE EXECUTIVE BOARD. THE MONIES FROM
SUCH SURCHARGE SHALL BE PLACED IN THE ENVIRONMENTAL REMEDIATION INDEMNI-
FICATION FUND ESTABLISHED PURSUANT TO SECTION NINETY-NINE-Q OF THE STATE
FINANCE LAW AND MAY BE INVESTED AND REINVESTED PURSUANT TO THE LAWS OF
THIS STATE TO BUILD A FUND ACTUARIALLY SUFFICIENT TO COVER THE ANTIC-
IPATED NEEDS OF SUCH FUND. THE EXECUTIVE BOARD MAY FROM TIME TO TIME
ADJUST SUCH SURCHARGE IN ACCORDANCE WITH ANY CHANGED CONDITIONS, AND THE
STATE MAY FROM TIME TO TIME THROUGH ITS BUDGETARY PROCESS MAKE APPROPRI-
ATIONS TO THE FUND TO MAINTAIN THE FUND'S INTEGRITY.
S 409. RESPONSIBILITY OF RESPONSIBLE PARTIES. NOTHING IN THIS ARTICLE
SHALL RELIEVE A RESPONSIBLE PARTY FROM THE COST OF REMEDIATION EXCEPT
THAT THE EXECUTIVE BOARD MAY COMPROMISE ANY CLAIM ON ADVICE OF COUNSEL
FOR GOOD AND SUFFICIENT REASON, SUCH AS FUTILITY OF RECOVERY OR DECI-
SIONS AS TO THE STRENGTH OR WEAKNESS OF EACH INDIVIDUAL CASE. THE EXECU-
TIVE BOARD MAY ALSO FOR GOOD AND SUFFICIENT REASONS RELIEVE A MUNICI-
PALITY FROM ALL OR A PART OF SUCH COSTS. SHOULD THE MUNICIPALITY SELL
SUCH PROPERTY, THE BOARD MAY REQUIRE THE PAYMENT TO THE STATE OF SUCH
AMOUNT AS IT DEEMS FEASIBLE TO OFFSET THE COST OF REMEDIATION, THE VALUE
OF THE PROPERTY AND THE ADDED VALUE OF THE POTENTIAL ECONOMIC DEVELOP-
MENT. NOTHING IN THIS ARTICLE SHALL RELIEVE A RESPONSIBLE PARTY THAT HAS
NOT CONTRIBUTED TO THE COST OF REMEDIATION FROM AN ACTION BY THE RESPON-
SIBLE PARTY OR PARTIES THAT HAVE PAID FOR SUCH REMEDIATION FOR THE EQUI-
TABLE SHARE SUCH PARTY SHOULD HAVE PAID AND SUCH PARTY SHALL NOT BE
ACCORDED INDEMNIFICATION UNDER THIS ARTICLE OR THE INDEMNIFICATION
AGREEMENT WITH THE DEVELOPERS THAT HAVE PAID FOR THE REMEDIATION OF SUCH
PROPERTY.
S 410. LIABILITY LIMITATION AND INDEMNIFICATION. 1. (A) NOTWITHSTAND-
ING ANY OTHER PROVISION OF LAW AND EXCEPT AS PROVIDED IN SUBDIVISION TWO
OF THIS SECTION AND IN PARAGRAPH (E) OF SUBDIVISION TWO OF SECTION FOUR
HUNDRED FIVE OF THIS ARTICLE, THE FOLLOWING SHALL NOT BE LIABLE TO THE
STATE UPON ANY STATUTORY OR COMMON LAW CAUSE OF ACTION, OR TO ANY PERSON
UPON STATUTORY CAUSE OF ACTION ARISING OUT OF THE PRESENCE OF ANY
HAZARDOUS SUBSTANCE IN OR ON PROPERTY AT ANY TIME BEFORE THE EFFECTIVE
DATE OF A CONTRACT ENTERED INTO PURSUANT TO THIS ARTICLE:
(I) A DEVELOPER WHO HAS ENTERED INTO AN AGREEMENT WITH THE DIVISION TO
UNDERTAKE AND HAS UNDERTAKEN AN ENVIRONMENTAL REMEDIATION PROJECT PURSU-
ANT TO THIS ARTICLE AND HAS COMPLIED WITH THE TERMS AND CONDITIONS OF
THE AGREEMENT PROVIDED THAT THE DEVELOPER DID NOT GENERATE, ARRANGE FOR,
TRANSPORT FOR DISPOSAL OF ANY HAZARDOUS SUBSTANCE LOCATED AT SUCH PROP-
ERTY AND DID NOT OWN SUCH PROPERTY DURING ANY SUCH TIME WHEN PROPERTY
WAS CONTAMINATED; AND
(II) A SUCCESSOR IN TITLE TO THE REAL PROPERTY SUBJECT TO SUCH
PROJECT; ANY LESSEE OF SUCH PROPERTY; AND ANY PERSON THAT PROVIDES
FINANCING TO SUCH DEVELOPER RELATIVE TO THE REMEDIATION, RESTORATION, OR
REDEVELOPMENT OF SUCH PROPERTY, PROVIDED THAT SUCH SUCCESSOR IN TITLE,
LESSEE, OR LENDER DID NOT GENERATE, ARRANGE FOR, TRANSPORT, OR DISPOSE,
AND DID NOT CAUSE THE GENERATION, ARRANGEMENT FOR, TRANSPORTATION, OR
DISPOSAL OF ANY HAZARDOUS SUBSTANCE LOCATED AT SUCH PROPERTY, AND DID
NOT OWN SUCH PROPERTY DURING ANY SUCH TIME WHEN PROPERTY WAS CONTAM-
INATED.
(B) NOTWITHSTANDING ANY OTHER PROVISION OF THIS ARTICLE, ANY PERSON
SEEKING THE BENEFIT OF THIS SUBDIVISION SHALL BEAR THE BURDEN OF PROVING
THAT A CAUSE OF ACTION, OR ANY PART THEREOF, IS ATTRIBUTABLE SOLELY TO
HAZARDOUS SUBSTANCES PRESENT IN OR ON SUCH PARCEL BEFORE THE EFFECTIVE
DATE OF SUCH CONTRACT.
S. 4422 8
2. SUBDIVISION ONE OF THIS SECTION SHALL NOT APPLY TO RELIEVE ANY
DEVELOPER, SUCCESSOR IN TITLE, LESSEE OR LENDER FROM LIABILITY ARISING
FROM:
(A) FAILING TO IMPLEMENT SUCH PROJECT TO THE DIVISION, THE DEPARTMENT
OF ENVIRONMENTAL CONSERVATION AND THE DEPARTMENT OF HEALTH'S SATISFAC-
TION OR FAILING TO COMPLY WITH THE TERMS AND CONDITIONS OF THE CONTRACT;
(B) FRAUDULENTLY DEMONSTRATING THE CLEANUP LEVELS IDENTIFIED IN OR TO
BE IDENTIFIED IN ACCORDANCE WITH SUCH PROJECT WERE REACHED;
(C) CAUSING THE RELEASE OR THREAT OF RELEASE AT THE PROPERTY SUBJECT
TO SUCH PROJECT OF ANY HAZARDOUS SUBSTANCE AFTER THE EFFECTIVE DATE OF
SUCH CONTRACT; OR
(D) CHANGING SUCH PROPERTY'S USE FROM THE INTENDED USE AS IDENTIFIED
IN THE CONTRACT PURSUANT TO THIS ARTICLE TO A USE REQUIRING A LOWER
LEVEL OF RESIDUAL CONTAMINATION UNLESS THE ADDITIONAL REMEDIAL ACTIV-
ITIES ARE UNDERTAKEN WHICH SHALL MEET THE SAME STANDARD FOR PROTECTION
OF HUMAN HEALTH AND THE ENVIRONMENT THAT APPLIES TO REMEDIAL ACTIONS
UNDERTAKEN PURSUANT TO THE INTENDED USE OF THE PROPERTY AS AGREED TO BY
THE DIVISION, THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION AND THE
DEPARTMENT OF HEALTH SO THAT SUCH USE CAN BE IMPLEMENTED WITH SUFFICIENT
PROTECTION OF PUBLIC HEALTH AND THE ENVIRONMENT.
3. THE OFFICE OF INDEMNIFICATION SHALL INDEMNIFY AND SAVE HARMLESS,
THE DEVELOPER, ANY SUCCESSOR IN TITLE, LESSEE, OR LENDER IDENTIFIED IN
PARAGRAPH (A) OF SUBDIVISION ONE OF THIS SECTION IN THE AMOUNT OF ANY
JUDGMENT, OR SETTLEMENT, OBTAINED AGAINST SUCH DEVELOPER, SUCCESSOR IN
TITLE, LESSEE OR LENDER IN ANY COURT FOR ANY COMMON LAW CAUSE OF ACTION
ARISING OUT OF THE PRESENCE OF ANY HAZARDOUS SUBSTANCE IN OR ON SUCH
PROPERTY AND IS THE SUBJECT OF THE AGREEMENT BETWEEN THE DEVELOPER AND
THE DIVISION AT ANYTIME BEFORE THE EFFECTIVE DATE OF A CONTRACT ENTERED
INTO PURSUANT TO THIS ARTICLE. SUCH DEVELOPER, SUCCESSOR IN TITLE,
LESSEE OR LENDER SHALL BE ENTITLED TO LEGAL REPRESENTATION TO BE
PROVIDED BY, OR THE COST OF WHICH SHALL BE PAID FOR BY, THE OFFICE OF
INDEMNIFICATION AS SUCH OFFICE SHALL DETERMINE PROVIDED SUCH DETERMI-
NATION OF SUCH REPRESENTATION SHALL BE CONSISTENT WITH THE CODE OF
PROFESSIONAL RESPONSIBILITY APPLICABLE TO LEGAL REPRESENTATION IN THIS
STATE AND ANY SETTLEMENT OF SUCH AN ACTION SHALL BE SUBJECT TO THE
APPROVAL OF THE DIVISION, THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION
AND THE DEPARTMENT OF HEALTH AS TO FORM AND AMOUNT, AND THIS SUBDIVISION
SHALL NOT APPLY TO ANY SETTLEMENT OF ANY SUCH ACTION WHICH HAS NOT
RECEIVED SUCH APPROVAL.
4. THE DEVELOPER AND ANY SUCCESSOR IN TITLE SHALL IMPLEMENT AN ENVI-
RONMENTAL SAMPLING PROGRAM APPROVED BY THE DIVISION AND THE DEPARTMENT
OF ENVIRONMENTAL CONSERVATION AND THE DEPARTMENT OF HEALTH AND, IN THE
EVENT THAT CONDITIONS ON SUCH PROPERTY ARE NOT SUFFICIENTLY PROTECTIVE
OF HUMAN HEALTH FOR ITS CURRENT USE DUE TO ENVIRONMENTAL CONDITIONS
RELATED TO THE PROPERTY SUBJECT TO SUCH PROJECT THAT WERE UNKNOWN TO THE
DIVISION, THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION AND THE DEPART-
MENT OF HEALTH AS OF THE EFFECTIVE DATE OF SUCH CONTRACT OR DUE TO
INFORMATION RECEIVED IN WHOLE OR IN PART AFTER THE DIVISION, THE DEPART-
MENT OF ENVIRONMENTAL CONSERVATION AND THE DEPARTMENT OF HEALTH APPROVAL
OF SUCH PROJECT FINAL ENGINEERING REPORT AND CERTIFICATION, SHALL TAKE
SUCH EMERGENCY MEASURES THAT ARE NECESSARY TO MAINTAIN SUFFICIENT
PROTECTION OF HUMAN HEALTH FOR SUCH PROPERTY'S CURRENT USE UNTIL SUCH
CONDITIONS ARE ADDRESSED; AND THE OFFICE OF REMEDIATION SHALL TAKE SUCH
MEASURES AS IT MAY DETERMINE THROUGH THE DEPARTMENT OF ENVIRONMENTAL
CONSERVATION AND ITS STANDBY CONTRACTORS TO RETURN SUCH PROPERTY TO
S. 4422 9
CONDITIONS SUFFICIENTLY PROTECTIVE OF HUMAN HEALTH AND THE COST OF SUCH
WORK SHALL BE PAID BY THE OFFICE OF INDEMNIFICATION.
5. IN ADDITION TO ANY OTHER POWERS THE DEPARTMENT MAY HAVE, THE DIVI-
SION, THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION AND THE DEPARTMENT OF
HEALTH SHALL HAVE THE AUTHORITY TO PERIODICALLY INSPECT EACH PROJECT
SITE TO ENSURE THAT THE USE OF THE PROPERTY COMPLIES WITH THE TERMS AND
CONDITIONS OF THE CONTRACT.
S 411. CHANGE OF USE. 1. AT LEAST SIXTY DAYS BEFORE THE START OF PHYS-
ICAL ALTERATION OR CONSTRUCTION CONSTITUTING A CHANGE OF SUCH AT A PROP-
ERTY REMEDIATED UNDER AN ENVIRONMENTAL REMEDIATION AGREEMENT OR PROJECT,
OR AT LEAST SIXTY DAYS BEFORE A CHANGE OF USE AT SUCH A PROPERTY NOT
INVOLVING ANY PHYSICAL ALTERATION OR CONSTRUCTION, AS THE CASE MAY BE,
THE PERSON PROPOSING TO MAKE A CHANGE OF USE SHALL PROVIDE WRITTEN
NOTIFICATION TO THE DIVISION, THE DEPARTMENT OF ENVIRONMENTAL CONSERVA-
TION, THE DEPARTMENT OF HEALTH AND THE CLERKS OF THE COUNTY AND OTHER
MUNICIPALITIES IN WHICH SUCH PROPERTY IS LOCATED.
2. NO PERSON SHALL ENGAGE IN ANY ACTIVITY AT A PROPERTY REMEDIATED
UNDER AN ENVIRONMENTAL REMEDIATION PROJECT THAT IS NOT CONSISTENT WITH
RESTRICTIONS PLACED UPON THE USE OF THE PROPERTY, OR THAT WILL, OR THAT
REASONABLY IS ANTICIPATED TO PREVENT OR INTERFERE SIGNIFICANTLY WITH A
PROPOSED, ONGOING, OR COMPLETED PROJECT; OR EXPOSE THE PUBLIC HEALTH OR
THE ENVIRONMENT TO A SIGNIFICANTLY INCREASED THREAT OF HARM DONE OR
DAMAGE AT SUCH PROPERTY. IF THE DIVISION TOGETHER WITH THE COMMISSIONER
OF ENVIRONMENTAL CONSERVATION AND THE COMMISSIONER OF HEALTH DETERMINE
THAT A PROPOSED CHANGE OF USE IS PROHIBITED PURSUANT TO THIS SECTION, IT
SHALL, WITHIN FORTY-FIVE DAYS AFTER RECEIPT OF THE COMPLETE NOTICE
REQUIRED BY THIS SECTION, PROVIDE THE PERSON GIVING SUCH NOTICE WITH A
WRITTEN DETERMINATION THAT SUCH CHANGE OF USE WILL NOT BE AUTHORIZED,
TOGETHER WITH THE REASONS FOR SUCH DETERMINATION.
3. FOR THE PURPOSES OF THIS SECTION:
(A) "CHANGE OF USE" MEANS THE TRANSFER OF TITLE TO ALL OR PART OF
PROPERTY SUBJECT TO AN ENVIRONMENTAL REMEDIATION AGREEMENT WITH THE
DIVISION, THE ERECTION OF ANY STRUCTURE ON SUCH PROPERTY, THE PAVING OF
SUCH PROPERTY FOR USE AS A ROADWAY OR PARKING LOT, AND THE CREATION OF A
PARK OR OTHER PUBLIC OR PRIVATE RECREATIONAL FACILITY ON SUCH PROPERTY,
OR ANY ACTIVITY THAT IS LIKELY TO DISRUPT OR EXPOSE HAZARDOUS SUBSTANCES
OR TO INCREASE DIRECT HUMAN EXPOSURE; OR ANY OTHER CONDUCT THAT WILL OR
MAY TEND TO SIGNIFICANTLY INTERFERE WITH AN ONGOING OR COMPLETED ENVI-
RONMENTAL REMEDIATION PROJECT; AND
(B) "COMPLETE NOTICE" MEANS A NOTICE THAT ADEQUATELY APPRISES THE
DIVISION AND THE EXECUTIVE BOARD OF THE CONTEMPLATED PHYSICAL ALTERATION
OF THE PROPERTY AND HOW SUCH ALTERATION MAY AFFECT THE PROPERTY'S
PROPOSED, ONGOING, OR COMPLETED REMEDIATION, OR OF THE PROPOSED NEW
OWNER'S ABILITY TO IMPLEMENT THE ENGINEERING AND INSTITUTIONAL CONTROLS
ASSOCIATED WITH THE PROPERTY'S REMEDIATION.
S 412. CONTINUATION OF THE STATE SUPERFUND MANAGEMENT BOARD. THE STATE
SUPERFUND MANAGEMENT BOARD, CREATED PURSUANT TO SECTION 27-1319 OF THE
ENVIRONMENTAL CONSERVATION LAW, SHALL BE CONTINUED AS THE ADVISORY BOARD
TO THE DIVISION AND THE COMMISSIONER SHALL BE AN EX OFFICIO MEMBER OF
SUCH BOARD WHEN IT MEETS TO ADVISE THE DIVISION.
S 413. COST OF DEMOLITION OF STRUCTURES ON VARIOUS SITES. IN THE EVENT
THAT THE SURCHARGE RECEIPTS REFERRED TO IN SECTION FOUR HUNDRED EIGHT OF
THIS ARTICLE SHALL EXCEED THE ACTUARIAL ESTIMATES OF FUTURE COSTS OF THE
INDEMNIFICATION PROCESS, OR BECAUSE OF OTHER DEVELOPMENTAL OPPORTU-
NITIES, SUCH MONIES MAY BE AUTHORIZED BY THE DIVISION TO BE USED FOR
DEMOLITION OF STRUCTURES ON THE SITES COVERED BY THIS ARTICLE, INCLUDING
S. 4422 10
ANY DEFINED AS BROWNFIELDS, EVEN THOUGH SUCH STRUCTURES MAY NOT IN AND
OF THEMSELVES BE THE SOURCE OF CONTAMINATION OR BE REQUIRED TO BE
REMOVED TO GET AT THE SOURCE OF SUCH CONTAMINATION.
S 414. INDEMNIFICATION FOR RESPONSIBLE DEVELOPER. NOTWITHSTANDING ANY
CONTRARY OR INCONSISTENT PROVISION OF THIS ARTICLE, IF A DEVELOPER WHO
WAS A RESPONSIBLE PARTY FOR THE CONTAMINATION OF ANY PROPERTY INCLUDING
PROPERTY WHICH IT OWNS, ENTERS AN AGREEMENT WITH THE DIVISION TO UNDER-
TAKE A REMEDIATION PROJECT PURSUANT TO THIS ARTICLE AND PROVIDED THAT
THE LEVEL OF REMEDIATION OF SUCH PROPERTY SHALL BE CONSISTENT WITH THAT
REQUIRED BY SECTION 27-1313 OF THE ENVIRONMENTAL CONSERVATION LAW THE
INDEMNIFICATION PORTION PROVIDED IN SUBDIVISION FOUR OF SECTION FOUR
HUNDRED TEN OF THIS ARTICLE SHALL APPLY TO SUCH DEVELOPER AND ANY
SUCCESSOR IN TITLE TO SUCH REMEDIATED PROPERTY IF SUCH DEVELOPER
COMPLIES WITH SUCH SECTION IN ITS AGREEMENT WITH THE STATE AND REMEDI-
ATES ITS CONTAMINATED PROPERTY PURSUANT TO SUCH AGREEMENT AND PAYS A
SURCHARGE FOR SUCH INDEMNIFICATION PROVIDED IN THIS ARTICLE TO THE
OFFICE OF INDEMNIFICATION AND SUCH PARTY SHALL BE SUBJECT TO ALL THE
OTHER TERMS AND CONDITIONS OF THIS ARTICLE EXCEPT THE INDEMNIFICATION
AND RELIEF OF LIABILITY PROVIDED BY THIS ARTICLE SHALL ONLY EXTEND TO
THE PROPERTY THAT WAS THE SUBJECT OF THE REMEDIATION AGREEMENT BETWEEN
THE STATE AS TO CLAIMS DESCRIBED IN SUBDIVISION FOUR OF SECTION FOUR
HUNDRED TEN OF THIS ARTICLE AND SHALL NOT APPLY TO CLAIMS FOR NATURAL
RESOURCE DAMAGES OR THIRD PARTY CLAIMS DESCRIBED IN SUBDIVISION THREE OF
SECTION FOUR HUNDRED TEN OF THIS ARTICLE, EXCEPT THAT LEGAL REPRESEN-
TATION AS PROVIDED IN SUBDIVISION THREE OF SECTION FOUR HUNDRED TEN OF
THIS ARTICLE SHALL BE PROVIDED TO SUCH DEVELOPER FOR CLAIMS MADE AGAINST
SUCH DEVELOPER AS DESCRIBED IN SUBDIVISION FOUR OF SECTION FOUR HUNDRED
TEN OF THIS ARTICLE AS IT WOULD FOR ANY OTHER DEVELOPERS DESCRIBED IN
SUCH SECTION.
S 415. MUNICIPALITY PARTICIPATION. NOTWITHSTANDING ANY OTHER LAW TO
THE CONTRARY, A MUNICIPALITY AS DEFINED IN TITLE FIVE OF ARTICLE FIFTY-
SIX OF THE ENVIRONMENTAL CONSERVATION LAW MAY UTILIZE THIS ARTICLE FOR
ANY PROJECT AND STILL BE ENTITLED TO STATE AID FROM THE CLEAN
WATER/CLEAN AIR BOND ACT OF 1996 ACCORDING TO SUCH TITLE.
S 2. The state finance law is amended by adding a new section 99-q to
read as follows:
S 99-Q. ENVIRONMENTAL REMEDIATION INDEMNIFICATION FUND. 1. THERE IS
HEREBY ESTABLISHED IN THE JOINT CUSTODY OF THE STATE COMPTROLLER AND THE
COMMISSIONER OF TAXATION AND FINANCE A SPECIAL REVENUE FUND TO BE KNOWN
AS THE "ENVIRONMENTAL REMEDIATION INDEMNIFICATION FUND".
2. (A) SUCH FUND SHALL CONSIST OF, AND THE STATE COMPTROLLER IS HEREBY
AUTHORIZED AND DIRECTED TO RECEIVE FOR DEPOSIT TO THE CREDIT OF SUCH
FUND, MONIES COLLECTED PURSUANT TO SECTIONS FOUR HUNDRED FOUR AND FOUR
HUNDRED EIGHT OF THE ECONOMIC DEVELOPMENT LAW INCLUDING, BUT NOT LIMITED
TO, ALL SURCHARGES AND CLAIMS ADJUSTMENTS AND SETTLEMENTS RECEIVED FROM
ONE OR MORE INDEMNIFICATION, INSURANCE, CASUALTY OR BONDING COMPANIES OR
THE STATE INSURANCE FUND RELATING TO THE REQUIREMENTS OF SUCH ARTICLE
AND ALL OTHER MONEYS CREDITED OR TRANSFERRED TO SUCH FUND FROM ANY OTHER
FUND OR SOURCE PURSUANT TO LAW.
(B) THE STATE COMPTROLLER IS HEREBY AUTHORIZED AND DIRECTED TO PERMIT
INTEREST EARNINGS ON ANY FUND BALANCES TO ACCRUE TO THE BENEFIT OF SUCH
FUND.
3. MONIES OF THE FUND, FOLLOWING APPROPRIATION BY THE LEGISLATURE,
SHALL BE AVAILABLE TO THE DIVISION OF DEVELOPMENT ASSISTANCE, ENVIRON-
MENTAL INDEMNIFICATION AND LAND USE CONTROL IN THE DEPARTMENT OF ECONOM-
S. 4422 11
IC DEVELOPMENT AND SHALL BE EXPENDED EXCLUSIVELY FOR THE PURPOSES OF
ARTICLE SEVENTEEN OF THE ECONOMIC DEVELOPMENT LAW.
4. MONIES SHALL BE PAID OUT OF SUCH FUND ON THE AUDIT AND WARRANT OF
THE STATE COMPTROLLER ON VOUCHERS APPROVED AND CERTIFIED BY THE COMMIS-
SIONER OF ECONOMIC DEVELOPMENT.
S 3. Section 27-1319 of the environmental conservation law is REPEALED
and a new section 27-1319 is added to read as follows:
S 27-1319. STATE SUPERFUND MANAGEMENT BOARD.
1. A. THERE IS HEREBY CREATED WITHIN THE DEPARTMENT THE "STATE SUPER-
FUND MANAGEMENT BOARD" HEREINAFTER REFERRED TO IN THIS SECTION AS THE
BOARD. SUCH BOARD SHALL CONSIST OF FOURTEEN MEMBERS, INCLUDING THE
COMMISSIONER AND THE COMMISSIONER OF HEALTH, OR THEIR DESIGNEES, AND
TWELVE AT LARGE MEMBERS APPOINTED BY THE GOVERNOR, TWO OF WHOM SHALL BE
APPOINTED UPON RECOMMENDATION OF THE TEMPORARY PRESIDENT OF THE SENATE
AND TWO OF WHOM SHALL BE APPOINTED UPON RECOMMENDATION OF THE SPEAKER OF
THE ASSEMBLY, ONE OF WHOM SHALL BE APPOINTED UPON RECOMMENDATION OF THE
MINORITY LEADER OF THE SENATE AND ONE OF WHOM SHALL BE APPOINTED UPON
RECOMMENDATION OF THE MINORITY LEADER OF THE ASSEMBLY, AND, OF THE
REMAINING SIX, TWO SHALL LIVE WITHIN A MUNICIPALITY WITHIN WHICH EXISTS
AN INACTIVE HAZARDOUS WASTE SITE, OR SITES, AS LISTED PURSUANT TO
SECTION 27-1305 OF THIS TITLE, AND HAVE BEEN INVOLVED IN A CITIZEN'S
ORGANIZATION THAT HAS A PURPOSE RELATING TO THE SITE OR SITES WITHIN
THAT MUNICIPALITY, TWO SHALL BE REPRESENTATIVES OF ORGANIZATIONS WHOSE
PRIME FUNCTION IS THE PROTECTION OF NATURAL RESOURCES AND ENHANCEMENT OF
THE ENVIRONMENTAL QUALITY OF THE STATE AND TWO SHALL BE REPRESENTATIVES
OF INDUSTRIES THAT GENERATE HAZARDOUS WASTE IN THE STATE. NONE OF THE
MEMBERS APPOINTED BY THE GOVERNOR SHALL BE OFFICERS OR EMPLOYEES OF ANY
STATE DEPARTMENT OR AGENCY AND EACH SHALL BE, BY PROFESSIONAL TRAINING
OR EXPERIENCE AND ATTAINMENT, QUALIFIED TO ANALYZE AND INTERPRET MATTERS
PERTAINING TO HAZARDOUS WASTE MANAGEMENT AND THE REMEDIATION OF INACTIVE
HAZARDOUS WASTE DISPOSAL SITES.
B. NO AT LARGE MEMBER OF THE BOARD MAY APPOINT A DESIGNEE TO TEMPORAR-
ILY OR PERMANENTLY ASSUME HIS OR HER PLACE ON THE BOARD.
2. A. THE COMMISSIONER SHALL SERVE AS CHAIRPERSON OF THE BOARD AND THE
BOARD SHALL ELECT A VICE CHAIRPERSON FROM AMONG THE APPOINTED MEMBERS TO
PRESIDE IN THE ABSENCE OF THE CHAIRPERSON.
B. OF THE TWELVE AT LARGE MEMBERS APPOINTED BY THE GOVERNOR, EACH
SHALL BE REAFFIRMED OR REAPPOINTED ON JANUARY THIRTY-FIRST, TWO THOUSAND
TWELVE AND EVERY TWO YEARS THEREAFTER AND EACH SHALL HOLD OFFICE UNTIL
SUCH TIME AS HE OR SHE SHALL RESIGN OR BE REMOVED IN THE MANNER PROVIDED
BY LAW. ANY VACANCY ON THE BOARD SHALL BE FILLED BY APPOINTMENT PURSUANT
TO SUBDIVISION ONE OF THIS SECTION FOR THE UNEXPIRED BALANCE OF THE
TERM.
3. THE MEMBERS OF THE BOARD SHALL SERVE WITHOUT COMPENSATION FOR THEIR
SERVICES AS MEMBERS OF THE BOARD, EXCEPT THAT EACH OF THEM SHALL BE
ALLOWED THE NECESSARY AND ACTUAL EXPENSES WHICH HE OR SHE SHALL INCUR IN
THE PERFORMANCE OF HIS OR HER DUTIES UNDER THIS SECTION.
4. THE BOARD SHALL HAVE THE POWER, DUTY AND RESPONSIBILITY TO:
A. SERVE AS A WORKING FORUM FOR THE EXCHANGE OF VIEWS, CONCERNS,
IDEAS, INFORMATION AND RECOMMENDATIONS RELATING TO HAZARDOUS WASTE
MANAGEMENT AND THE REMEDIATION OF INACTIVE HAZARDOUS WASTE DISPOSAL
SITES.
B. REQUEST AND RECEIVE FROM THE DEPARTMENT AT EACH MEETING OF THE
BOARD ANY PORTIONS OF THE PLAN OR ANY REVISIONS, AMENDMENTS OR CHANGES
AVAILABLE FOR REVIEW, AND ANY SUPPORTING DOCUMENTS OR OTHER PERTINENT
DATA. ALL INFORMATION REQUESTED BY OR PROVIDED TO THE BOARD SHALL ALSO
S. 4422 12
BE PROVIDED TO THE TEMPORARY PRESIDENT OF THE SENATE, THE SPEAKER OF THE
ASSEMBLY, AND THE CHAIRPERSONS OF THE SENATE AND ASSEMBLY ENVIRONMENTAL
CONSERVATION COMMITTEES.
C. COMPEL THE ATTENDANCE AT EACH MEETING OF THE BOARD OF SUCH PERSON-
NEL OF THE DEPARTMENT, OR OF OTHER APPROPRIATE STATE DEPARTMENTS OR
AGENCIES, AS MAY REASONABLY BE EXPECTED TO SUPPLY ANY PERTINENT DATA THE
BOARD MAY REQUEST.
D. MONITOR AND REVIEW THE IMPLEMENTATION OF THE INACTIVE HAZARDOUS
WASTE SITE REMEDIATION PROGRAM AND THE POLICIES, PROGRAM OBJECTIVES,
METHODS, AND STRATEGIES OUTLINED IN THE PLAN, THE ANNUAL IMPLEMENTATION
STATUS REPORT, ANY PLAN UPDATE, THE REGISTRY, AND THE QUARTERLY SITE
STATUS REPORTS BY THE DEPARTMENT, AS WELL AS INFORMATION WHICH THE BOARD
MAY ACQUIRE FROM OTHER SOURCES.
E. REVIEW THE HAZARDOUS WASTE SITE REMEDIATION REMAINING TO BE
COMPLETED UNDER THE STATE INACTIVE HAZARDOUS WASTE REMEDIAL PLAN AS
UPDATED, THE ESTIMATE OF THE COSTS WHICH WOULD BE INCURRED IN THE
COMPLETION OF THIS REMEDIATION, THE SCHEDULE UNDER WHICH THE COSTS WILL
BE INCURRED, THE REVENUES AND RESOURCES EXPECTED TO BE AVAILABLE TO MEET
THESE COSTS.
F. REVIEW AND EVALUATE THE MUNICIPAL COST SHARING PROGRAM ESTABLISHED
PURSUANT TO PARAGRAPH G OF SUBDIVISION FIVE OF SECTION 27-1313 OF THIS
TITLE AND REVIEW THE APPROPRIATE STATE AND INDUSTRY CONTRIBUTION TO THE
INACTIVE HAZARDOUS WASTE SITE REMEDIAL PROGRAM.
G. BASED UPON ITS MONITORING, REVIEWING AND OTHER INFORMATION AVAIL-
ABLE TO IT, THE BOARD SHALL REPORT TO THE GOVERNOR AND TO THE LEGISLA-
TURE ON OR BEFORE JANUARY FIRST OF EACH YEAR ITS ASSESSMENT OF THE
IMPLEMENTATION OF THE REMEDIATION PROGRAM, TOGETHER WITH ITS COMMENTS,
SUGGESTIONS, AND RECOMMENDATIONS REGARDING THE PROGRAM, ITS IMPLEMENTA-
TION, AVAILABLE FUNDING AND RESOURCES, AND THE NEED FOR STEPS TO ASSURE
THE FUTURE AVAILABILITY OF FUNDING.
5. A. THE BOARD SHALL:
1. MEET AT LEAST QUARTERLY;
2. KEEP A RECORD OF ALL ITS PROCEEDINGS AND PROVIDE SUCH RECORD TO THE
PUBLIC UPON REQUEST; AND
3. DETERMINE THE RULES OF ITS OWN PROCEDURES.
B. SEVEN MEMBERS OF THE BOARD SHALL CONSTITUTE A QUORUM FOR THE TRANS-
ACTION OF ANY BUSINESS OF THE BOARD.
6. STAFF SERVICES, INCLUDING RECORDING OF BOARD PROCEEDINGS, SHALL BE
PERFORMED BY PERSONNEL OF THE DEPARTMENT, OR SUCH STATE DEPARTMENTS OR
OTHER AGENCIES AS THE CHAIRPERSON DEEMS APPROPRIATE OR DESIRABLE.
7. FOR THE PURPOSES OF THIS SECTION, THE AT LARGE MEMBERS OF THE BOARD
SHALL BE CONSIDERED OFFICERS OR EMPLOYEES OF PUBLIC ENTITIES AND SHALL
BE AFFORDED SUCH DEFENSE AND INDEMNIFICATION PROVIDED PURSUANT TO
SECTION EIGHTEEN OF THE PUBLIC OFFICERS LAW.
S 4. Severability clause. If any clause, sentence, paragraph, subdivi-
sion, 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
provision had not been included herein.
S 5. This act shall take effect immediately.
