senate Bill S5228A

2011-2012 Legislative Session

Relates to brownfield site cleanup; repealer

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Archive: Last Bill Status - Passed Senate


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor

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Actions

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Assembly Actions - Lowercase
Senate Actions - UPPERCASE
Jun 22, 2012 referred to environmental conservation
Jun 21, 2012 delivered to assembly
passed senate
ordered to third reading cal.1512
committee discharged and committed to rules
Jun 05, 2012 reported and committed to finance
Jan 09, 2012 print number 5228a
amend (t) and recommit to environmental conservation
Jan 04, 2012 referred to environmental conservation
May 17, 2011 reported and committed to finance
May 03, 2011 referred to environmental conservation

Votes

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Jun 21, 2012 - Rules committee Vote

S5228A
14
2
committee
14
Aye
2
Nay
8
Aye with Reservations
0
Absent
1
Excused
0
Abstained
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Jun 5, 2012 - Environmental Conservation committee Vote

S5228A
7
6
committee
7
Aye
6
Nay
1
Aye with Reservations
0
Absent
0
Excused
0
Abstained
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Environmental Conservation Committee Vote: Jun 5, 2012

aye wr (1)

May 17, 2011 - Environmental Conservation committee Vote

S5228
8
2
committee
8
Aye
2
Nay
4
Aye with Reservations
0
Absent
0
Excused
0
Abstained
show committee vote details

Bill Amendments

Original
A (Active)
Original
A (Active)

S5228 - Bill Details

Current Committee:
Assembly Environmental Conservation
Law Section:
Environmental Conservation Law
Laws Affected:
Amd §§27-1405, 27-1409, 27-1318, 27-1415, 27-1419 & 56-0503, add Art 71 §§71-4501 - 71-4531, En Con L; amd §§21, 22 & 23, Tax L; rpld Part H §31, Chap 1 of 2003

S5228 - Bill Texts

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Relates to brownfield site cleanup; establishes environmental covenants; repeals provisions of law relating to brownfield redevelopment tax credits.

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BILL NUMBER:S5228

TITLE OF BILL:
An act
to amend the environmental conservation law, the public service law, the
general business law and the
tax law, in relation to brownfield site cleanup; to
repeal subparagraph (D) of paragraph 3-a of subdivision (a) of section
21 of the tax law relating thereto; and to repeal section 31 of part H
of chapter 1 of the laws of 2003 amending the tax law relating to
brownfield redevelopment tax credits, relating thereto

PURPOSE OF THE BILL
This bill would further strengthen the State's
Brownfield Cleanup Program (BCP), which is already one of the
nation's premier environmental cleanup and redevelopment programs.
Eligibility standards would be tightened by adding non-discretionary
economic conditions and greater predeterminations of probable
significant contamination. Many of the State's most contaminated and
hard-to-redevelop properties-including Class 2, Class 3, and Resource
Conservation and Recovery Act (RCRA) sites-would again be eligible
for entrance in the BCP if owned and controlled by true volunteers
that pledge to remediate and redevelop these sites to their highest
and best market-based use. Program oversight fees would be capped,
the State would adopt the environmental covenant standards that have
become the national norm for ongoing monitoring and restoration of
sites, and the Department of Environmental Conservation (DEC) would be
granted greater information on and access to contaminated sites. The
tax credits would be refocused on actual cleanups and market-driven
developments, with greater targeting toward proposed manufacturing
projects. The credit sunsets would be eliminated, making the tax
credits congruent to the programmatic aspects
of the program, and the county criteria-based Environmental
Zones (EZs) would be reinstated with updates for all EZs to
reestablish areas according to the new census. Adoption of these
changes will provide greater predictability to DEC about what
properties should get into the BCP, while alleviating the
administrative burdens connected therein, and easing the process for
applicants to enter and complete the program. This would greatly
encourage the equally important overriding public purposes of
protecting the public health by restoring contaminated real estate,
and by creating quality employment for New Yorkers through
redeveloping these sites to the nation's highest standards.

SUMMARY OF PROVISIONS:
Section 1 would amend section 27-1405 of the
Environmental Conservation Law (ECL) to provide potential applicants,
the DEC, and other public and private institutions with guidance on
site eligibility. An eligible brownfield would be characterized as a
site that reasonably demonstrates a strong suspicion of a significant
level of contamination, which is a determination that would
typically, though not exclusively, be determined through the
completion of a phase I environmental report. A determination of
eligibility would require a prima facie showing that redevelopment of
the site would be greatly inhibited by actual or suspected
contamination factors at or below the surface level. Evidence of


non-discretionary market-based economic distress must also be
demonstrated, to determine if a
site merits entrance into the BCP and the as-of-light State financial
support. An eligible site must be primarily abandoned currently or at
any time prior to application, or characterized by any prior and
current severe economic or functional underutilization of a site,
which is evident where the property is used as a parking, storage, or
hazardous or solid waste facility. If the site's primary use has been
and is intended to be a manufacturing or other industrial facility, a
credible market study must show that the building and equipment
presently at the location must be functionally obsolescent on an
internationally comparative basis for the site to be eligible. The
section also would allow current active State Superfund and RCRA sites
in the program if owned and controlled by hue volunteers who pledge
to complete any necessary investigations and remediation. Volunteers
would also assume all future costs related to such sites, and they or
their successors would have to maintain all institutional and
engineer controls as required by DEC.

Section 2 of this bill would amend section 27-1409 of the ECL to limit
the fees that DEC can impose on participants in smaller scale
projects for administering the BCP. DEC and other concerned State
entities can currently impose oversight and administrative fees
related to costs connected to the BCP. There are no current limits on
the extent of these fees related to the size of a potential project.
This bill would cap these fees at no more than five percent of the
site preparation costs related to ground, vapor, and groundwater
cleanups as defined in section twenty-one of the tax law. In
addition, such fees would be payable only upon the receipt of the
certificate of completion for the project, or upon voluntary or other
termination in the program.
This section would also make clear that failure to pay due fees will
result in revocation of such certificate and prohibit future
participation in the program.

Section 3 would enact a new Title 45 to Article 71 the ECL, which
would supersede the existing Title 36 environmental easement program
unique to New York and provide for the use of environmental covenants
as adopted by over twenty other states where brownfields are also a
significant public concern. These covenants present a uniform method
for assuring that title holders and their predecessors and successors
maintain responsibility for ongoing maintenance and controls at a
site that has gone through the BCP. Adoption of the covenant model
will provide assurance and confidence to out-of state lenders and
other interested parties on the status and future disposition of
sites, based on common experiences with the conditions in other
states that have adopted the environmental covenant model legislation.

Section 4 would amend section 27-1318 of the ECL to allow an owner or
other responsible party to execute an environmental covenant in lieu
of an environmental easement.

Section 5 would amend section 27-1415 of the ECL to require the DEC to
record in its database on brownfield sites a copy of any
environmental covenant created under Title 45 of Article 71 of the
ECL.


Section 6 would amend section 27-1419 of the ECL to require that any
site owner of a covered party must certify that an environmental
covenant has been duly created and recorded and any affected
municipality has been duly notified of the existence of the covenant.

Section 7 would amend section 56-0503 of ECL to add to the
requirement under current law that municipalities, to participate in
the environmental restoration program, must place and be bound by
environmental easements as deemed necessary by the DEC.

Section 8 of the bill would amend section 119-b of the Public Service
Law to require a one-call system on excavation work to provide the
DEC with the information received and maintained by the system.

Section 9 of the bill would amend section 761 of the General Business
Law to require that notices of excavation also be relayed
electronically to the DEC.

Section 10 would amend section 21 of the Tax Law to treat taxpayers
filing under Article 22 of the Tax Law (businesses treating income
under the Personal Income Tax such as partnerships and Limited
Liability Companies) the same as other business filers.

Section 11 of the bill would further amend section 21 of the Tax Law
to make a technical correction to the statute regarding caps. When
the caps were placed on development credits in 2008, they guaranteed
the taxpayer a positive basis for the calculation of the credit
limitation, based on a product of the site preparation credit
component and the groundwater remediation credit component, the
outcome of which was independent of the taxpayer's choice to take an
expense deduction of cleanup costs under section 198 of the Internal
Revenue Code. Current law is dependent on this choice as it requires
the taxpayer to choose between the federal expense deduction or the
state cleanup credits. Each taxpayer's circumstance may vary on which
is the most advantageous course to elect. Under the product cap
limiting development credits, which is based on a multiple of
depreciable cleanup costs, if the taxpayer chooses to expense the
costs for a federal deduction, there is no cleanup cost basis to
apply towards the development credit cap.
With no basis for the product, the amount of development credits under
this current scenario is zero. This bill would allow the taxpayer to
compute the maximum allowable development credit regardless of the
treatment of the expenses for federal purposes. In addition, this
section increases the cap for sites redeveloped primarily as a
qualified manufacturing site by .333 percent to provide a maximum
inducement and State support for these globally coveted projects.

Section 12 would repeal the two-percent credit increase for projects
conforming to a Brownfield opportunity Area (BOA) agreement certified
by the Department of State, to keep such agreements from overriding
municipal home-rule wishes and interfering with market driven
highest and best use standards. BOA's were never contemplated to
override local zoning standards and planning desires.

Section 13 would amend subdivision (b) of section 21 of the Tax Law to
reinstate county criteria-based EZs and have all EZs updated to
reflect the recently completed 2010 Census.


Section 14 would make conforming EZ changes to section 22 of the Tax
Law.

Section 15 would triple the existing Environmental Remediation
Insurance credit granted under section 23 of the Tax Law from a
maximum of$30,000 per BCP site to $90,000.

Section 16 would make the tax credits under the BCP permanent and
would allow taxpayers who have not received a certificate of
completion for a qualified site by March 31, 2015, to be eligible for
tax credits under the program. This sunset date is especially
pernicious since qualified sites take at least three and half years
to get through the program, and many applicants asking for a site to
be admitted to the BCP would likely be already ineligible for any
State support through the program.

Section 17 provides for a severability clause for the sections of the
bill.

Section 18 provides for an immediate effective date for the bill and
would apply the new statutes only to all qualified sites accepted
into the BCP on or after July 1, 2011.

EXISTING LAW:
The Brownfield Cleanup Program was enacted in 2003 to
encourage and guide the redevelopment of the State's largest and/or
most economically inhibiting contaminated properties not on the
federal priority list. Title 14 of Article 27 of the ECL was adopted
to define project eligibility and give statutory grounding for
administration of the program. Three new sections of the tax law were
adopted to provide significant incentives through the nation's first
fully refundable large-scale business tax credits. These credits
provide state support for a portion of cleanups and redevelopment
with much greater support for projects in distressed neighborhoods,
provide a full or partial State rebate for property taxes paid on
redeveloped properties based on the location of the site and the
number of jobs created, and give an incentive for the carrying of
environmental remediation insurance. In 2008, the redevelopment
credits were capped to provide a sense of budgetary predictability.

PRIOR LEGISLATIVE HISTORY:
This is a new bill.

STATEMENT IN SUPPORT:
The New York State Brownfield Cleanup Program
has proved to be the nation's best designed and most successful
remediation, smart-growth, sustainability, reclamation, and economic
development tool. Budget concerns and programmatic anxieties have led
to many proposals to amend the program, especially the redevelopment
incentives, proposals that would make credits discretionary, and
programs that would fundamentally interfere with the marketplace.
These proposals threaten the BCP's success in attaining the nation's
highest cleanup standards backed by market-driven and as-of-light
incentives. These proposals would also lead us back toward the old
status quo of permanently abandoned sites, sprawl, urban decay, poor
cleanups and redevelopment, and in doing so would defeat the dream
for true sustainability and the promise of creating livable


communities. A review of all the relevant facts available to date
illustrates the overwhelming triumphs of the current tax credit
program, rather than its shortcomings. The State needs to concentrate
on fixing the administrative and programmatic problems, instead of
focusing on the tax credits that have been the true measure of
success for the program so far, would further strengthen the BCP.

A short recap demonstrates just how revolutionary Chapter 1 of the
Laws of 2003 truly was and continues to be. While the State in the
1980's and 1990's did offer substantial grants to remediate sites-in
many cases offering to pay nearly the entire cost of cleanups-New
York was universally viewed as having one of the poorest cleanup and
redevelopment records in the nation. By 1999, it had become clear to
both houses of the State Legislature, the Executive, and
the environmental and business communities, that New York's Superfund
and other remediation programs were ineffective, underfunded, and
poorly designed. New York State, despite likely having more major
brownfields than any other state-and certainly more major urban and
suburban areas adversely impacted by contaminated sites-also had the
most dysfunctional programs. Despite laudatory goals and objectives,
millions in capital funds and supporting statutes that sought
protective cleanups and redevelopment, and while policies called for
higher standards, shovel ready sites, and various ways to reclaim our
urban cores and satisfy pressing demands for environmental justice,
nearly every site remained unclaimed and toxic, cleanup agreements
that were signed were inadequate, and capital grants and municipal
awards were unproductive at best.

The State should have learned by this point that programs that only
reward cleanup efforts, or that attempt to centrally and rationally
plan the type, location, and scope of future redevelopment do not
work. Only making sites "shovel ready" has demonstrated time and time
again to result in corrupted or incomplete cleanups that have always
left sites de-industrialized, poorly reused, and often still hazardous.

The BCP relies on a market-based approach. This mechanism will not
unfairly prejudice one geographic sector of the State in preference
of another, and tax incentives would be the most generous offered
through any program in the State if not the nation. These properties
need to employ the "highest and best use" test as determined by
private sector specialists and risk takers.

The program's remediation and redevelopment incentives have proven
beyond doubt to be the most paradigm shattering. For the first time
anywhere, a completely market-driven, fully refundable tax credit
system was adopted that would get sites cleaned-up to the highest
standards, get projects done at a level of quality and job creation
happening nowhere else, and getting sites done that have sat idle for
decades.

The BCP has resulted in more private dollars being spent on cleanups
and redevelopment than the rest of the nation combined.

The BCP is not designed, and cannot reasonably be altered, to cover
the multitude of very small sites throughout the State. The program
was meant to cover the State's largest or most problematical
properties that justified private redevelopment. However, the State


should anticipate at least forty projects a year through the program,
four times more than previously obtained. Also, no projects from Long
Island, home to some of the State's worst environmental sites, have
come completely through the program. The reforms in this bill would
aid the reclamation and redevelopment of this crucial sector of the
State.

What is more, the BCP has proved to be a much better mechanism to
getting sites cleaned up and redeveloped than the State Superfund and
registry programs at a much lower cost to the taxpayers. These sites
originally were allowed into the BCP for a very short window. It is
time to open these sites in the BCP on a permanent basis.

Since enactment of the BCP, the State so far has spent $365,118,000 on
the superfund program-$220,118,000 on actual cleanup and $145
million on administrative costs. (Included
within the $365 million is about $85 million that was rolled into old
hazardous waste programs and paid for by current indebtedness.)
Despite this large commitment of State resources, Superfund and RCRA
sites still take decades to reclaim at merely industrial standards,
are still bound up with years of litigation, and remain undeveloped
once the agreed upon cleanup is completed. Comparatively, BCP site
reclaims at the nation's highest and best cleanup standards are
completed within an average of 3.2 years. It is therefore in the
State's interest once more to allow superfund and other regulated
sites that are owned and controlled by hue volunteers back into the
BCP.

In contrast, on the 92 sites that have gone through BCP and have been
awarded Certificates of Completion through tax year 2010, $403
million in private funds have been spent on cleanups. This has cost
state taxpayers under $40 million in "pay go" cleanup credits. Nearly
$3 billion in private funds have been spent on redevelopment of these
sites. State taxpayers have provided nearly $461 million in support
for buildings and equipment on these projects that have resulted in
thousands of good jobs throughout the State. These redeveloped sites
have more than repaid the State's taxpayers investment with increased
income, sales, and property taxes and elevated real estate values.

In addition, the BCP has not favored one geographic area of the State
over any other. Although New York City and Westchester projects on
average have been larger in scope, actually more projects from
Upstate have come through the program-hence, an equilibrium.

The overriding problems in the program have come, not from the tax
credits, but from issues of eligibility and the administration of the
program. The original definition of a brownfield came from the
Federal Environmental Protection Agency description that is extremely
broad and was intended to aid states and localities in creating a
site inventory, not to actually cleanup and redevelop identified
sites. This definition had produced an impossible burden on DEC.
These definitional problems have resulted in endless litigation,
process delays, and a sense that the State cannot keep its commitments.

This bill would provide DEC with a definition that will focus the
program on sites that the market has determined are in great distress
rather than eliminating the strengths of the program through giving


government officials discretionary powers of the location, number,
and types of cleanups and redevelopments. Except for globally
hyper-competitive manufacturing projects, the program should remain
neutral over the type of developments meriting support.
The State cannot forget that the BCP is as much an economic
development as an environmental program. The BCP should also not be
used as an experiment for unproven sustainability and low-income
housing programs.

Furthermore, the bill would give private lenders more security about
the programmatic requirements in the BCP and help assure that the
State will keep its promises on incentives.
Finally, it is absolutely essential that the sunsets in the current
program be eliminated, as it is currently past the timeframe for a
taxpayer to receive credits if these sunsets remain.

FISCAL IMPLICATIONS:
The bill is designed to be revenue neutral.
Tighter eligibility standards would be offset by allowing State
Superfund and RCRA sites into the program.

Providing Personal Income Tax filers parity would be counterbalanced
by removing incentives not driven by market criteria. Capping
oversight fees on small projects would be more than made up by
increased penalties for non-payment. The program would continue to
expend approximately an estimated $400 million a year on around forty
new projects per year throughout the State.

EFFECTIVE DATE:
This bill has an immediate effective date. However,
the provisions of the bill would only apply to applications that have
been accepted into the BCP on or after July 1, 2011.

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                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  5228

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                               May 3, 2011
                               ___________

Introduced  by Sen. GRISANTI -- read twice and ordered printed, and when
  printed to be committed to the Committee on Environmental Conservation

AN ACT to amend the environmental conservation law, the  public  service
  law,  the  general business law and the tax law, in relation to brown-
  field site cleanup; to repeal subparagraph (D)  of  paragraph  3-a  of
  subdivision  (a) of section 21 of the tax law relating thereto; and to
  repeal section 31 of part H of chapter 1 of the laws of 2003  amending
  the tax law relating to brownfield redevelopment tax credits, relating
  thereto

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Subdivision 2  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:
  2. (A) "Brownfield site" or "site" shall mean any real  property,  the
redevelopment  or  reuse  of which [may be] IS complicated by the GROUND
SURFACE OR BELOW GROUND SURFACE LEVEL presence or [potential]  SUSPECTED
presence  of a contaminant REGARDLESS OF THE SOURCE OF SUCH CONTAMINANT.
A BROWNFIELD SITE IS CHARACTERIZED BY ANY OR ALL OF THE FOLLOWING:
  (I) A CURRENT AND  HISTORICAL  LEGACY  OF  ABANDONMENT  FROM  PREVIOUS
INDUSTRIAL OR COMMERCIAL ACTIVITY.
  (II)  A CURRENT AND HISTORICAL LEGACY OF SEVERE ECONOMIC OR FUNCTIONAL
UNDERUTILIZATION INCLUDING USE OF SUCH SITE  AS  A  HAZARDOUS  WASTE  OR
SOLID WASTE FACILITY.
  (III)  IN  THE  CASE  OF  A SITE CHARACTERIZED PRIMARILY BY INDUSTRIAL
ACTIVITY, FUNCTIONAL OBSOLESCENCE.
  (B) Such term shall not include real property:
  [(a)] (I) 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

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD11103-03-1

S. 5228                             2

article; 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)]  (II)  listed  on the national priorities list established under
authority of 42 U.S.C. section 9605;
  [(c)] (III) subject to an enforcement action under title seven or nine
of this article, [except]  OR  PERMITTED  AS  a  treatment,  storage  or
disposal  facility  [subject to a permit]; provided, that nothing herein
contained shall be deemed otherwise to exclude from  the  scope  of  the
term  "brownfield site" a hazardous waste treatment, storage or disposal
facility having interim status according to regulations  promulgated  by
the commissioner;
  [(d)]  (IV) subject to an order for cleanup pursuant to article twelve
of the navigation law or pursuant to title ten of article  seventeen  of
this  chapter  except such property shall not be deemed ineligible if it
is subject to a stipulation agreement; or
  [(e)] (V) subject to any other on-going state or federal environmental
enforcement action related to the contamination which is at or emanating
from the site subject to the present application.
  (VI) PROVIDED HOWEVER FOR OTHERWISE INELIGIBLE SITES GIVEN  A  CLASSI-
FICATION  AS  DESCRIBED  IN  SUBPARAGRAPH TWO OR THREE OF PARAGRAPH B OF
SUBDIVISION TWO OF SECTION 27-1305 OF THIS ARTICLE, AND INELIGIBLE SITES
DESCRIBED IN SUBPARAGRAPH (III) OF THIS PARAGRAPH, A VOLUNTEER SHALL NOT
BE DEEMED INELIGIBLE TO PARTICIPATE IN REGARDS TO  ANY  SUCH  INELIGIBLE
SITE  IF SUCH VOLUNTEER INTENDS TO ACQUIRE AND REDEVELOP SUCH REAL PROP-
ERTY AND ASSUME RESPONSIBILITY, NOT FOR PAST COSTS INCURRED PRIOR TO THE
APPLICATION, BUT FOR ALL FUTURE COSTS TO COMPLETE ANY REMAINING INVESTI-
GATION AND REMEDIATION UPON ACQUISITION OF SUCH REAL PROPERTY, OR  MAIN-
TAIN  LONG  TERM INSTITUTIONAL AND ENGINEERING CONTROLS OF THE SITE, AND
IMPLEMENT A REDEVELOPMENT PROJECT ON THE SITE, THE SITE CONFORMS TO  THE
DEFINITION  OF  A  BROWNFIELD SITE IN PARAGRAPH (A) OF THIS SUBDIVISION,
AND ENTERS INTO  A  BROWNFIELD  CLEANUP  AGREEMENT  IN  ACCORDANCE  WITH
SECTION  27-1409 OF THIS TITLE. ANY ON-GOING STATE ACTIONS AND/OR ORDERS
WILL NOT BE SUPERSEDED BY THE VOLUNTEER'S BROWNFIELD CLEANUP  AGREEMENT,
BUT  WILL  REMAIN IN FULL FORCE AND EFFECT UNTIL SUCH TIME AS THE VOLUN-
TEER RECEIVES A CERTIFICATE OF COMPLETION PURSUANT TO SECTION 27-1419 OF
THIS TITLE AND THEREAFTER TO THE  EXTENT  THE  VOLUNTEER  OR  SUBSEQUENT
OWNER  OR  OPERATOR  FAIL  TO  COMPLY WITH THE TERMS OF AN ENVIRONMENTAL
EASEMENT IF ONE HAD BEEN CREATED PURSUANT TO TITLE THIRTY-SIX OF ARTICLE
SEVENTY-ONE, OR AN ENVIRONMENTAL COVENANT AS OF THIS CHAPTER PURSUANT TO
TITLE FORTY-FIVE OF ARTICLE SEVENTY-ONE OF THIS CHAPTER.  IN  THE  EVENT
THE  VOLUNTEER  DOES  NOT  RECEIVE THE CERTIFICATE OF COMPLETION OR SUCH
CERTIFICATE OF COMPLETION IS REVOKED FOR ANY REASON, ANY AND  ALL  STATE
ENFORCEMENTS  ACTION  IMMEDIATELY WILL RESUME AFTER TIMELY NOTICE TO ALL
PARTIES.
  S 2. The opening paragraph of subdivision 2 of section 27-1409 of  the
environmental  conservation  law  is  designated paragraph (a) and a new
paragraph (b) is added to read as follows:
  (B) NOTWITHSTANDING ANY PROVISION OF LAW TO THE CONTRARY,  ALL  APPLI-
CANTS  ACCEPTING  PARTICIPATION  IN THE BROWNFIELD CLEANUP PROGRAM SHALL

S. 5228                             3

PAY ALL REASONABLE STATE COSTS, HOWEVER,  SUCH  STATE  COSTS  SHALL  NOT
EXCEED  FIVE  PERCENT OF THE TOTAL SITE PREPARATION COSTS, AS DEFINED BY
PARAGRAPH TWO OF SUBDIVISION (B) OF SECTION TWENTY-ONE OF THE  TAX  LAW,
PAID  OR INCURRED BY THE APPLICANT, AND THE TOTAL STATE COSTS OWED SHALL
BE PAYABLE UPON NINETY DAYS OF, (I) THE ISSUANCE OF THE  CERTIFICATE  OF
COMPLETION FOR THE PROJECT, OR, (II) UPON TERMINATION OF A PARTICIPANT'S
BROWNFIELD  CLEANUP  AGREEMENT BY THE DEPARTMENT FOR FAILURE TO SUBSTAN-
TIALLY COMPLY WITH SUCH AGREEMENT'S TERMS AND CONDITIONS, OR (III),  THE
VOLUNTARY WITHDRAWAL OF THE APPLICANT.  FAILURE TO REMIT DUE PAYMENTS TO
THE  STATE  SHALL  RESULT  IN  THE  REVOCATION  OF  SUCH  CERTIFICATE OF
COMPLETION, AND WILL PROHIBIT ANY FUTURE PARTICIPATION OF  AN  APPLICANT
IN  THE  PROGRAM.  PAYMENT OF STATE COSTS SHALL BE MADE TO THE HAZARDOUS
WASTE REMEDIAL FUND ESTABLISHED PURSUANT TO  SECTION  NINETY-SEVEN-B  OF
THE STATE FINANCE LAW.
  S  3.  Article  71 of the environmental conservation law is amended by
adding a new title 45 to read as follows:
                                TITLE 45
                         ENVIRONMENTAL COVENANTS
SECTION 71-4501. SHORT TITLE.
        71-4503. DECLARATION OF POLICY AND STATEMENT OF PURPOSE.
        71-4505. DEFINITIONS.
        71-4507. NATURE OF RIGHTS; SUBORDINATION OF INTERESTS.
        71-4509. CONTENTS OF ENVIRONMENTAL COVENANT.
        71-4511. VALIDITY; EFFECT ON OTHER INSTRUMENTS.
        71-4513. RELATIONSHIP TO OTHER LAND USE LAW.
        71-4515. NOTICE.
        71-4517. RECORDING.
        71-4519. COORDINATION WITH LOCAL GOVERNMENTS.
        71-4521. DURATION.
        71-4523. AMENDMENT OR TERMINATION BY CONSENT.
        71-4525. ENFORCEMENT OF ENVIRONMENTAL COVENANT.
        71-4527. UNIFORMITY OF APPLICATION AND CONSTRUCTION.
        71-4529. REGULATIONS.
        71-4531. SEVERABILITY.
S 71-4501. SHORT TITLE.
  THIS TITLE SHALL BE KNOWN AND MAY BE CITED AS  THE  "UNIFORM  ENVIRON-
MENTAL COVENANTS ACT".
S 71-4503. DECLARATION OF POLICY AND STATEMENT OF PURPOSE.
  THE LEGISLATURE HEREBY FINDS AND DECLARES THAT CONTAMINATED SITE REME-
DIAL  PROGRAMS  ARE  AN IMPORTANT AND NECESSARY COMPONENT OF THE STATE'S
POLICY OF RESTORING AND REVITALIZING REAL  PROPERTY  LOCATED  THROUGHOUT
NEW YORK STATE. THE LEGISLATURE FURTHER FINDS THAT WHEN AN ENVIRONMENTAL
REMEDIATION  PROJECT  LEAVES  RESIDUAL CONTAMINATION AT LEVELS THAT HAVE
BEEN DETERMINED TO BE SAFE FOR A SPECIFIC USE,  BUT  NOT  ALL  USES,  OR
INCLUDES  ENGINEERED  STRUCTURES  THAT  MUST  BE MAINTAINED OR PROTECTED
AGAINST DAMAGE TO BE EFFECTIVE, IT IS NECESSARY TO PROVIDE AN  EFFECTIVE
AND  ENFORCEABLE MEANS OF ENSURING THE PERFORMANCE OF MAINTENANCE, MONI-
TORING  OR  OPERATION  REQUIREMENTS,  AND  OF  ENSURING  THE   POTENTIAL
RESTRICTION OF FUTURE USES OF THE LAND, INCLUDING RESTRICTIONS ON DRILL-
ING  FOR  OR  PUMPING  GROUNDWATER,  FOR AS LONG AS ANY RESIDUAL CONTAM-
INATION REMAINS HAZARDOUS. THE LEGISLATURE DECLARES, THEREFORE, THAT  IT
IS  IN  THE  PUBLIC  INTEREST TO CREATE LAND USE CONTROLS IN THE FORM OF
ENVIRONMENTAL COVENANTS BECAUSE SUCH ENVIRONMENTAL COVENANTS ARE  NECES-
SARY  FOR  THE  PROTECTION  OF  HUMAN  HEALTH AND THE ENVIRONMENT AND TO
ACHIEVE THE REQUIREMENTS FOR  REMEDIATION  ESTABLISHED  AT  CONTAMINATED
SITES.  IT  IS THE INTENT OF THE LEGISLATURE THAT THE PROVISIONS OF THIS

S. 5228                             4

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) 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.

S. 5228                             5

  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.
  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

S. 5228                             6

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 OF  THIS
SECTION,  AN  ENVIRONMENTAL  COVENANT  MAY  CONTAIN  OTHER  INFORMATION,
RESTRICTIONS, AND REQUIREMENTS AGREED TO BY THE PERSONS WHO  SIGNED  IT,
INCLUDING ANY:
  (A) LIMITATION ON AMENDMENT OR TERMINATION OF THE COVENANT IN ADDITION
TO THOSE CONTAINED IN SECTIONS 71-4521 AND 71-4523 OF THIS TITLE; AND
  (B)  RIGHTS  OF  THE  HOLDER  IN  ADDITION TO ITS RIGHT TO ENFORCE THE
COVENANT PURSUANT TO SECTION 71-4525 OF THIS TITLE.
  3. IN ADDITION TO OTHER CONDITIONS FOR ITS  APPROVAL  OF  AN  ENVIRON-
MENTAL  COVENANT,  THE DEPARTMENT MAY REQUIRE THOSE PERSONS SPECIFIED BY
THE DEPARTMENT WHO HAVE INTERESTS IN  THE  REAL  PROPERTY  TO  SIGN  THE
COVENANT.
  4. THE TITLE OWNERS SHALL FURNISH TO THE DEPARTMENT ABSTRACTS OF TITLE
AND  OTHER  DOCUMENTS  SUFFICIENT  TO ENABLE THE DEPARTMENT TO DETERMINE
THAT THE ENVIRONMENTAL COVENANTS SHALL BE AN EFFECTIVE  AND  ENFORCEABLE
MEANS OF ENSURING:
  (A)  THE PERFORMANCE OF MAINTENANCE, MONITORING AND OPERATING REQUIRE-
MENTS; AND
  (B) ACTIVITIES AND USE LIMITATIONS.
  5. UNTIL SUCH TIME AS THE ENVIRONMENTAL COVENANT IS EXTINGUISHED,  THE
PROPERTY  DEED  AND ALL SUBSEQUENT INSTRUMENTS OF CONVEYANCE RELATING TO
THE SUBJECT PROPERTY SHALL STATE IN AT  LEAST  FIFTEEN-POINT  BOLD-FACED
TYPE:    "THIS  PROPERTY IS SUBJECT TO AN ENVIRONMENTAL COVENANT HELD BY
THE NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION PURSUANT  TO
TITLE 45 OF ARTICLE 71 OF THE ENVIRONMENTAL CONSERVATION LAW." THE PROP-
ERTY  DEED  AND ALL SUBSEQUENT INSTRUMENTS OF CONVEYANCE RELATING TO THE
PROPERTY ENCUMBERED BY THE COVENANT SHALL REFERENCE, BY  BOOK  AND  PAGE
NUMBER,  THE ENVIRONMENTAL COVENANT. SUCH DEED AND INSTRUMENT SHALL ALSO
SPECIFY THAT THE  ELIGIBLE  PROPERTY  IS  SUBJECT  TO  THE  RESTRICTIONS
CONTAINED  IN  SUCH COVENANT. AN INSTRUMENT FOR THE PURPOSE OF CREATING,
CONVEYING, MODIFYING, OR TERMINATING AN ENVIRONMENTAL COVENANT SHALL NOT
BE EFFECTIVE UNLESS RECORDED.
S 71-4511. VALIDITY; EFFECT ON OTHER INSTRUMENTS.
  1. AN ENVIRONMENTAL COVENANT THAT COMPLIES WITH THIS TITLE  RUNS  WITH
THE LAND.
  2.  AN ENVIRONMENTAL COVENANT THAT IS OTHERWISE EFFECTIVE IS VALID AND
ENFORCEABLE EVEN IF:

S. 5228                             7

  (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
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

S. 5228                             8

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.
  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.

S. 5228                             9

  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-
GRAPH, SUBDIVISION, OR PART THEREOF DIRECTLY INVOLVED IN THE CONTROVERSY
IN  WHICH  SUCH  JUDGMENT  SHALL HAVE BEEN RENDERED; PROVIDED THAT IF AN
ENVIRONMENTAL COVENANT CREATED PURSUANT TO THIS TITLE IS  DETERMINED  BY
ANY  COURT  OF COMPETENT JURISDICTION TO BE LAND OR WATER OR AN INTEREST
IN LAND OR WATER SUBJECT TO THE PROVISIONS OF ARTICLE  FOURTEEN  OF  THE
CONSTITUTION,  THEN  THE  AUTHORITY OF THE STATE TO HOLD OR ACQUIRE SUCH
COVENANT AND THE CONVEYANCE TO THE STATE OF SUCH COVENANT SHALL BE  VOID
AB INITIO.
  S 4. Subdivision (b) of section 27-1318 of the environmental conserva-
tion  law,  as amended by section 2 of part E of chapter 577 of the laws
of 2004, is amended to read as follows:
  (b) Within sixty days of commencement  of  the  remedial  design,  the
owner  of  an  inactive hazardous waste disposal site, and/or any person
responsible for implementing a remedial  program  at  such  site,  where
institutional  or  engineering  controls  are  employed pursuant to this
title, shall execute an environmental easement pursuant to  title  thir-
ty-six of article seventy-one of this chapter OR AN ENVIRONMENTAL COVEN-
ANT PURSUANT TO TITLE FORTY-FIVE OF ARTICLE SEVENTY-ONE OF THIS CHAPTER.
  S 5. Paragraph (d) of subdivision 7 of section 27-1415 of the environ-
mental conservation law, as added by section 1 of part A of chapter 1 of
the laws of 2003, is amended to read as follows:
  (d)  The  commissioner  shall  create, update, and maintain a database
system for public information purposes and  to  monitor  and  track  all
brownfield  sites  subject  to  this  title. Data incorporated into such
system for each site for which information has been  collected  pursuant
to  this title shall include, but shall not be limited to, a site summa-
ry, name of site owner, location,  status  of  site  remedial  activity,
[and,  if  one  has been created pursuant to title thirty-six of article
seventy-one of this chapter, a copy of the environmental easement,]  and
a  contact  number  to obtain additional information. THE DATABASE SHALL

S. 5228                            10

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-
tronically.    Information from this database shall be incorporated into
the geographic information system created and maintained by the  depart-
ment pursuant to section 3-0315 of this chapter.
  S 6. Paragraph (e) of subdivision 2 of section 27-1419 of the environ-
mental conservation law, as added by section 1 of part A of chapter 1 of
the laws of 2003, is amended to read as follows:
  (e) a certification that any use restrictions, institutional controls,
engineering  controls  and/or any operation and maintenance requirements
applicable to the  site  are  contained  in  an  environmental  easement
created and recorded pursuant to title thirty-six of article seventy-one
of this chapter OR AN ENVIRONMENTAL COVENANT CREATED AND RECORDED PURSU-
ANT  TO  TITLE  FORTY-FIVE  OF  SUCH ARTICLE and that any affected local
governments, as defined in title thirty-six of SUCH article [seventy-one
of this chapter] have been notified that such easement OR  COVENANT  has
been recorded;
  S 7. Paragraph (g) of subdivision 2 of section 56-0503 of the environ-
mental  conservation law, as amended by section 4 of part D of chapter 1
of the laws of 2003, is amended to read as follows:
  (g) An agreement by the municipality that it shall put into place  any
engineering and/or institutional controls (including environmental ease-
ments  pursuant to title thirty-six of article seventy-one of this chap-
ter OR ENVIRONMENTAL COVENANTS PURSUANT  TO  TITLE  FORTY-FIVE  OF  SUCH
ARTICLE)  that  the  department  may deem necessary to allow the contem-
plated use  to  proceed,  that  such  engineering  and/or  institutional
controls  shall be binding on such municipality, any successor in title,
and any lessees and that any successors in title and any lessees  cannot
challenge state enforcement of such controls;
  S  8.  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. 5228                            11

  S  9. 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  10. Paragraph 5 of subdivision (a) of section 21 of the tax law, as
amended by section 1 of part H of chapter 577 of the laws  of  2004,  is
amended to read as follows:
  (5)  Applicable  percentage. For purposes of paragraphs two, three and
four of this subdivision, the  applicable  percentage  shall  be  twelve
percent  [in  the  case  of  credits claimed under article nine, nine-A,
thirty-two or thirty-three of this chapter, and ten percent in the  case
of  credits  claimed  under  article twenty-two of this chapter,] except
that where at least fifty percent of the  area  of  the  qualified  site
relating  to  the  credit  provided for in this section is located in an
environmental zone as defined in paragraph six  of  subdivision  (b)  of
this  section,  the applicable percentage shall be increased by an addi-
tional eight percent. Provided, however, as afforded in section  27-1419
of  the environmental conservation law, if the certificate of completion
indicates that the qualified site has been remediated to Track 1 as that
term is described in subdivision four of section 27-1415 of the environ-
mental conservation law, the applicable  percentage  set  forth  in  the
first sentence of this paragraph shall be increased by an additional two
percent.
  S  11. Subparagraph (A) of paragraph 3-a of subdivision (a) of section
21 of the tax law, as added by chapter 390  of  the  laws  of  2008,  is
amended to read as follows:
  (A)  Notwithstanding  any  other provision of law to the contrary, the
tangible property credit component  available  for  any  qualified  site
pursuant  to  paragraph three of this subdivision shall not exceed thir-
ty-five million dollars or three times THE SUM OF the costs included  in
the calculation of the site preparation credit component and the on-site
groundwater  remediation credit component under paragraphs two and four,
respectively, of this subdivision, AND THE COSTS THAT  WOULD  HAVE  BEEN
INCLUDED  IN  THE  CALCULATION  OF  SUCH COMPONENTS IF NOT TREATED AS AN
EXPENSE AND DEDUCTED PURSUANT TO SECTION 198  OF  THE  INTERNAL  REVENUE
CODE,  whichever  is less; provided, however, that: (1) in the case of a
qualified site to be used primarily for  manufacturing  activities,  the
tangible  property  credit  component  available  for any qualified site
pursuant to  paragraph  three  of  this  subdivision  shall  not  exceed
[forty-five] ONE HUNDRED FIFTY million dollars or [six] TWENTY times THE
SUM  OF  the  costs  included in the calculation of the site preparation
credit component and the on-site groundwater remediation  credit  compo-
nent  under  paragraphs two and four, respectively, of this subdivision,
AND THE COSTS THAT WOULD HAVE BEEN INCLUDED IN THE CALCULATION  OF  SUCH
COMPONENTS IF NOT TREATED AS AN EXPENSE AND DEDUCTED PURSUANT TO SECTION
198  OF  THE  INTERNAL  REVENUE  CODE,  whichever  is  less; and (2) the
provisions of this paragraph shall not apply to any qualified  site  for
which  the  department of environmental conservation has issued a notice
to the taxpayer before June twenty-third, two thousand  eight  that  its
request  for  participation  has  been accepted under subdivision six of
section 27-1407 of the environmental conservation law.

S. 5228                            12

  S 12. Subparagraph (D) of paragraph 3-a of subdivision (a) of  section
21 of the tax law is REPEALED.
  S  13. Paragraph 6 of subdivision (b) of section 21 of the tax law, as
amended by section 1 of part H of chapter  577  of  the  laws  of  2004,
subparagraph  (B)  and  the closing paragraph as amended by section 1 of
part G of chapter 62 of the laws of 2006, is amended to read as follows:
  (6) Environmental zones (EN-Zones). An "environmental zone" shall mean
an area designated as such by the commissioner of economic  development.
Such  areas  so  designated  are areas which are census tracts and block
numbering areas which, as of the  [two  thousand]  MOST  RECENT  census,
satisfy either of the following criteria:
  (A) areas that have both:
  (i)  a  poverty  rate of at least twenty percent for the year to which
the data relate; and
  (ii) an unemployment rate of at least one and  one-quarter  times  the
statewide unemployment rate for the year to which the data relate, or;
  (B)  areas  that have a poverty rate of at least two times the poverty
rate for the county in which the areas are located for the year to which
the data relate [provided, however, that a qualified site shall only  be
deemed  to  be  located in an environmental zone under this subparagraph
(B) if such site was the subject of a brownfield site cleanup  agreement
pursuant  to  section 27-1409 of the environmental conservation law that
was entered into prior to September first, two thousand ten].
  Such designation shall be made and a list of  all  such  environmental
zones  shall  be established by the commissioner of economic development
no later than December thirty-first, two thousand [four provided, howev-
er, that a qualified site shall only be deemed to be located in an envi-
ronmental zone under subparagraph (B) of this paragraph if such site was
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] ELEVEN.
  S 14. Paragraph 5 of subdivision (a) of section 22 of the tax law,  as
amended  by  section  4  of  part  H of chapter 577 of the laws of 2004,
subparagraph (B) and the closing paragraph as amended by  section  2  of
part G of chapter 62 of the laws of 2006, is amended to read as follows:
  (5) Environmental zones (EN-Zones). An "environmental zone" shall mean
an  area designated as such by the commissioner of economic development.
Such areas so designated are areas which are  census  tracts  and  block
numbering  areas  which,  as  of  the [two thousand] MOST RECENT census,
satisfy either of the following criteria:
  (A) areas that have both:
  (i) a poverty rate of at least twenty percent for the  year  to  which
the data relate;
  (ii)  an  unemployment  rate of at least one and one-quarter times the
statewide unemployment rate for the year to which the data relate, or;
  (B) areas that have a poverty rate of at least two times  the  poverty
rate for the county in which the areas are located for the year to which
the data relate[, provided, however, that a qualified site shall only be
deemed  to  be  located in an environmental zone under this subparagraph
(B) if such site was the subject of a brownfield site cleanup  agreement
pursuant  to  section 27-1409 of the environmental conservation law that
was entered into prior to September first, two thousand ten].
  Such designation shall be made and a list of  all  such  environmental
zones  shall  be established by the commissioner of economic development
no later than December thirty-first, two thousand [four provided, howev-
er, that a qualified site shall only be deemed to be located in an envi-

S. 5228                            13

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] ELEVEN.
  S  15.  Subdivision  (a)  of  section 23 of the tax law, as amended by
section 10 of part H of chapter 577 of the laws of 2004, is  amended  to
read as follows:
  (a)  Allowance  of  credit.  General.  A taxpayer subject to tax under
article nine, nine-A, twenty-two, thirty-two  or  thirty-three  of  this
chapter  shall  be  allowed  a  credit against such tax, pursuant to the
provisions referenced in subdivision (e) of this section. The amount  of
such  credit  shall  be  equal to the lesser of [thirty] NINETY thousand
dollars or fifty percent of the premiums paid on or after  the  date  of
the  brownfield  site cleanup agreement executed by the taxpayer and the
department of environmental conservation pursuant to section 27-1409  of
the  environmental  conservation  law  by the taxpayer for environmental
remediation insurance issued with respect to a qualified site.
  S 16. Section 31 of part H of chapter 1 of the laws of  2003  amending
the  tax  law  relating  to  brownfield  redevelopment  tax  credits, is
REPEALED.
  S 17. 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  18.  This  act  shall  take effect immediately and shall apply to a
qualified site for which the commissioner of environmental  conservation
has  issued  a  notice  to the taxpayer or other applicant after July 1,
2011 that its request for participation has been accepted under subdivi-
sion six of section 27-1407 of the environmental conservation law.

S5228A (ACTIVE) - Bill Details

Current Committee:
Assembly Environmental Conservation
Law Section:
Environmental Conservation Law
Laws Affected:
Amd §§27-1405, 27-1409, 27-1318, 27-1415, 27-1419 & 56-0503, add Art 71 §§71-4501 - 71-4531, En Con L; amd §§21, 22 & 23, Tax L; rpld Part H §31, Chap 1 of 2003

S5228A (ACTIVE) - Bill Texts

view summary

Relates to brownfield site cleanup; establishes environmental covenants; repeals provisions of law relating to brownfield redevelopment tax credits.

view sponsor memo
BILL NUMBER:S5228A

TITLE OF BILL:
An act
to amend the environmental conservation law, the public service law, the
general business law and the
tax law, in relation to brownfield site cleanup;
and to repeal section 31 of part H
of chapter 1 of the laws of 2003 amending the tax law relating to
brownfield redevelopment tax credits, relating thereto

PURPOSE OF THE BILL:
This bill would further strengthen the State's
Brownfield Cleanup Program (BCP), which is already one of the
nation's premier environmental cleanup and redevelopment programs.
Eligibility standards would be tightened by adding non-discretionary
economic conditions and greater predeterminations of probable
significant contamination. Many of the State's most contaminated and
hard-to-redevelop properties-including Class 2, Class 3, and Resource
Conservation and Recovery Act (RCRA) sites-would again be eligible
for entrance in the BCP if owned and controlled by true volunteers
that pledge to remediate and redevelop these sites to their highest
and best market-based use. Program oversight fees would be capped and
the State would adopt the environmental covenant standards that have
become the national norm for ongoing monitoring and restoration of
sites. The tax credits would be refocused on actual cleanups and
market-driven developments, with greater targeting toward proposed
manufacturing projects. The credit sunsets would be eliminated,
making the tax credits congruent to the programmatic aspects of the
program, and the county criteria-based Environmental Zones (EZs)
would be reinstated with updates for all EZs
to reestablish areas according to the new census. Adoption of these
changes will provide greater predictability to the Department of
Environmental Conservation (DEC) about what properties should get
into the BCP, while alleviating the administrative burdens connected
therein, and easing the process for applicants to enter and complete
the program. This would greatly encourage the equally important
overriding public purposes of protecting the public health by
restoring contaminated real estate, and by creating quality
employment for New Yorkers through redeveloping these sites to the
nation's highest standards.

SUMMARY OF PROVISIONS:
Section 1 would amend section 27-1405 of the Environmental
Conservation Law (ECL) to provide potential applicants, the DEC, and
other public and private institutions with guidance on site
eligibility. An eligible brownfield would be characterized as a site
that reasonably demonstrates a strong suspicion of a significant
level of contamination, which is a determination that would
typically, though not exclusively, be determined through the
completion of a phase I environmental report. A determination of

eligibility would require a prima facie showing that rede-
velopment of the site would be greatly inhibited by actual or
suspected contamination factors at or below the surface level.
Evidence of non-discretionary market-based economic distress must also
be demonstrated, to determine if a site merits entrance into the BCP
and the as-of-light State financial support. An eligible site must
be primarily abandoned currently or at any time prior to application,
or characterized by any prior and current severe economic or
functional underutilization of a site, which is evident where the
property is used as a parking, storage, or hazardous or solid waste
facility. If the site's primary use has been and is intended to be a
manufacturing or other industrial facility, a credible market study
must show that the building and equipment presently at the location
must be functionally obsolescent on an internationally comparative
basis for the site to be eligible. The section also would allow
current active State Superfund and RCRA sites in the program if owned
and controlled by hue volunteers who pledge to complete any necessary
investigations and remediation. Volunteers would also assume all
future costs related to such sites, and they or their successors
would have to maintain all institutional and engineer
controls as required by DEC.

Section 2 of this bill would amend section 27-1409 of the ECL to limit
the fees that DEC can impose on participants in smaller scale
projects for administering the BCP. DEC and other concerned State
entities can currently impose oversight and administrative fees
related to costs connected to the BCP. There are no current limits on
the extent of these fees related to the size of a potential project.
This bill would cap these fees at no more than five percent of the
site preparation costs related to ground, vapor, and groundwater
cleanups as defined in section twenty-one of the tax law. In
addition, such fees would be payable only upon the receipt of the
certificate of completion for the project, or upon voluntary or other
termination in the program. This section would also make clear that
failure to pay due fees will result in revocation of such certificate
and prohibit future participation in the program.

Section 3 would enact a new Title 45 to Article 71 the ECL, which
would supersede the existing Title 36 environmental easement program
unique to New York and provide for the use of environmental covenants
as adopted by over twenty other states where brownfields are also a
significant public concern. These covenants present a uniform method
for assuring that title holders and their predecessors and successors
maintain responsibility for ongoing maintenance and controls at a
site that has gone through the BCP. Adoption of the covenant model
will provide assurance and confidence to out-of state lenders and
other interested parties on the status and future disposition of
sites, based on common experiences with the conditions in other
states that have adopted the environmental covenant model legislation.

Section 4 would amend section 27-1318 of the ECL to allow an owner or
other responsible party to execute an environmental covenant in lieu
of an environmental easement.

Section 5 would amend section 27-1415 of the ECL to require the DEC to
record in its database on brownfield sites a copy of any
environmental covenant created under Title 45 of Article 71 of the ECL.

Section 6 would amend section 27-1419 of the ECL to require that any
site owner of a covered party must certify that an environmental coven-
ant has been duly created and recorded and any affected municipality
has been duly notified of the existence of the covenant.

Section 7 would amend section 56-0503 of ECL to add to the requirement
under current law that municipalities, to participate in the
environmental restoration program, must place and be bound by
environmental easements as deemed necessary by the DEC.

Section 8 would amend section 21 of the Tax Law to treat taxpayers
filing under Article 22 of the Tax Law (businesses treating income
under the Personal Income Tax such as partnerships and Limited
Liability Companies) the same as other business filers.

Section 9 of the bill would further amend section 21 of the Tax Law to
make a technical correction to the statute regarding caps. When the
caps were placed on development credits in 2008, they guaranteed the
taxpayer a positive basis for the calculation of the credit
limitation, based on a product of the site preparation credit
component and the groundwater remediation credit component, the
outcome of which was independent of the taxpayer's choice to take an
expense deduction of cleanup costs under section 198 of the Internal
Revenue Code. Current law is dependent on this choice as it requires
the taxpayer to choose between the federal expense deduction or the
state cleanup credits. Each taxpayer's circumstance may vary on
which is the most advantageous course to elect. Under the product cap
limiting development credits, which is based on a multiple of
depreciable cleanup costs, if the taxpayer chooses to expense the
costs for a federal deduction, there is no cleanup cost basis to
apply towards the development credit cap. With no basis for the
product, the amount of development credits under this current
scenario is zero. This bill would allow the taxpayer to compute the
maximum allowable development credit regardless of the
treatment of the expenses for federal purposes. In addition, this
section increases the cap for sites redeveloped primarily as a
qualified manufacturing site by .333 percent to provide a maximum
inducement and State support for these globally coveted projects.

Section 10 would amend subdivision (b) of section 21 of the Tax Law to
reinstate county criteria-based EZs and have all EZs updated to
reflect the recently completed 2010 Census.

Section 11 would make conforming EZ changes to section 22 of the Tax
Law.

Section 12 would triple the existing Environmental Remediation
Insurance credit granted under section 23 of the Tax Law from a
maximum of $30,000 per BCP site to $90,000.

Section 13 would make the tax credits under the BCP permanent and
would
allow taxpayers who have not received a certificate of completion for
a qualified site by March 31, 2015, to be eligible for tax credits
under the program. This sunset date is especially pernicious since
qualified sites take at least three and half years to get through
the program, and many applicants asking for a site to be admitted to
the BCP would likely be already ineligible for any State support
through the program.

Section 14 provides for a severability clause for the sections of the
bill.

Section 15 provides for an immediate effective date for the bill and
would apply the new statutes only to all qualified sites accepted
into the BCP on or after July 1, 2012.

EXISTING LAW:
The Brownfield Cleanup Program was enacted in 2003 to encourage and
guide the redevelopment of the State's largest and/or most
economically inhibiting contaminated properties not on the federal
priority list.
Title 14 of Article 27 of the ECL was adopted to define project
eligibility and give statutory grounding for administration of the
program. Three new sections of the tax law were adopted to provide
significant incentives through the nation's first fully refundable
large-scale business tax credits. These credits provide state support
for a portion of cleanups and redevelopment with much greater support
for projects in distressed neighborhoods, provide a full or partial
State rebate for property taxes paid on redeveloped properties based
on the location of the site and the number of jobs created, and give
an incentive for the carrying of environmental remediation insurance.
In 2008, the redevelopment credits were capped to provide a sense of
budgetary predictability.

PRIOR LEGISLATIVE HISTORY:
This is a new bill.

STATEMENT IN SUPPORT:
The New York State Brownfield Cleanup Program has proved to be the
nation's best designed and most successful remediation, smart-growth,
sustainability, reclamation, and economic development tool. Budget
concerns and programmatic anxieties have led to many proposals to
amend the program, especially the redevelopment incentives, proposals
that would make credits discretionary, and programs that would

fundamentally interfere with the marketplace. These proposals
threaten the BCP's success in attaining the nation's highest cleanup
standards backed by market-driven and as-of-light incentives. These
proposals would also lead us back toward the old status quo of
permanently abandoned sites, sprawl, urban decay, poor cleanups and
redevelopment, and in doing so would defeat the dream for true
sustainability and the promise of creating livable communities. A
review of all the relevant facts available to date illustrates the
overwhelming triumphs of the current tax credit program, rather than
its shortcomings. The State needs to concentrate on fixing the
administrative and programmatic problems, instead of focusing on the
tax credits that have been the true measure of success for the
program so far, would further strengthen the BCP.

A short recap demonstrates just how revolutionary Chapter 1 of the
Laws of 2003 truly was and continues to be. While the State in the
1980's and 1990's did offer substantial grants to remediate sites-in
many cases offering to pay nearly the entire cost of cleanups-New
York was universally viewed as having one of the poorest cleanup and
redevelopment records in the nation. By 1999, it had become clear to
both houses of the State Legislature, the Executive, and the
environmental and business communities, that New York's Superfund and
other remediation
programs were ineffective, underfunded, and poorly designed. New York
State, despite likely having more major brownfields than any other
state-and certainly more major urban and suburban areas adversely
impacted by contaminated sites-also had the most dysfunctional
programs.
Despite laudatory goals and objectives, millions in capital funds and
supporting statutes that sought protective cleanups and
redevelopment, and while policies called for higher standards, shovel
ready sites, and various ways to reclaim our urban cores and satisfy
pressing demands for environmental justice, nearly every site
remained unclaimed and toxic, cleanup agreements that were signed
were inadequate, and capital grants and municipal awards were
unproductive at best.

The State should have learned by this point that programs that. only
reward cleanup efforts, or that attempt to centrally and rationally
plan the type, location, and Scope of future redevelopment do not
work. Only making sites "shovel ready" has demonstrated time and time
again to result in corrupted or incomplete cleanups that have always
left sites de-industrialized, poorly reused, and often still hazardous.

The BCP relies on a market-based approach. This mechanism will not
unfairly prejudice one geographic sector of the State in preference
of another, and tax incentives would be the most generous offered
through any program in the State if not the nation. These properties
need to employ the "highest and best use" test as determined by
private sector specialists and risk takers.

The program's remediation and redevelopment incentives have proven
beyond doubt to be the most paradigm shattering. For the first time
anywhere, a completely market-driven, fully refundable tax credit
system was adopted that would get sites cleaned-up to the highest
standards, get projects done at a level of quality and job creation
happening nowhere else, and getting sites done that have sat idle for
decades.

The BCP has resulted in more private dollars being spent on cleanups
and redevelopment than the rest of the nation combined.

The BCP is not designed, and cannot reasonably be altered, to cover
the multitude of very small sites throughout the State. The program
was meant to cover the State's largest or most problematical
properties that justified private redevelopment. However, the State
should anticipate at least forty projects a year through the program,
four times more than previously obtained. Also, no projects from Long
Island, home .o some of the State's worst environmental sites, have
come completely through the program. The reforms in this bill would
aid the reclamation and redevelopment of this crucial sector of the
State.

What is more, the BCP has proved to be a much better mechanism to
getting sites cleaned up and redeveloped than the State Superfund and
registry programs at a much lower cost to the taxpayers. These sites
originally were allowed into the BCP for a very short window. It is
time to open these sites in the BCP on a permanent basis.

Since enactment of the BCP, the State so far has spent $365,118,000 on
the superfund program-$220,118,000 on actual cleanup and $145 million
on administrative costs. (Included within the $365 million is about
$85 million that was rolled into old hazardous waste programs and
paid for by current indebtedness.) Despite this large commitment of
State resources, Superfund and RCRA sites still take decades
to reclaim at
merely industrial standards, are still bound up with years of
litigation, and remain undeveloped once the agreed upon cleanup is
completed. Comparatively, BCP site reclaims at the nation's highest
and best cleanup standards are completed within an average of 3.2
years. It is therefore in the State's interest once more to allow
superfund and other regulated sites that are owned and controlled by
hue volunteers back into the BCP.

In contrast, on the 92 sites that have gone through BCP and have been
awarded Certificates of Completion through tax year 2010, $403
million in private funds have been spent on cleanups. This has cost
state taxpayers under $40 million in "pay go" cleanup credits. Nearly
$3 billion in private funds have been spent on redevelopment of these
sites. State taxpayers have provided nearly $461 million in support
for buildings and equipment on these projects that have resulted in
thousands of good jobs throughout the State. These redeveloped sites

have more than repaid the State's taxpayers investment with increased
income, sales, and property taxes and elevated real estate values.

In addition, the BCP has not favored one geographic area of the State
over any other. Although New York City and Westchester projects on
average have been larger in scope, actually more projects from
Upstate have come through the program-hence, an equilibrium.

The overriding problems in the program have come, not from the tax
credits, but from issues of eligibility and the administration of the
program. The original definition of a brownfield came from the
Federal Environmental Protection Agency description that is extremely
broad and was intended to aid states and localities in creating a
site inventory, not to actually cleanup and redevelop identified
sites. This definition had produced an impossible burden on DEC.
These definitional problems have resulted in endless litigation,
process delays, and a sense that the State cannot keep its commitments.

This bill would provide DEC with a definition that will focus the
program on sites that the market has determined are in great distress
rather than eliminating the strengths of the program through giving
government officials discretionary powers of the location, number,
and types of cleanups and redevelopments. Except for globally
hyper-competitive manufacturing projects, the program should remain
neutral over the type of developments meriting support. The State
cannot forget that the BCP is as much an economic development as an
environmental program. The BCP should also not be used as an
experiment for unproven sustainability and low-income housing programs.

Furthermore, the bill would give private lenders more security about
the programmatic requirements in the BCP and help assure that the
State will keep its promises on incentives. Finally, it is absolutely
essential that the sunsets in the current program be eliminated, as
it is currently past the timeframe for a taxpayer to receive credits
if these sunsets remain.

FISCAL IMPLICATIONS:
The bill is designed to be revenue neutral. Tighter eligibility
standards would be offset by allowing State Superfund and RCRA sites
into the program.

Providing Personal Income Tax filers parity would be counterbalanced
by removing incentives not driven by market criteria. Capping
oversight fees on small projects would be more than made up by
increased penalties for non-payment. The program would continue to
expend approximately an estimated $400 million a year on around forty
new projects per year throughout the State.

EFFECTIVE DATE:
This bill has an immediate effective date. However, the provisions of
the bill would only apply to applications that have been accepted
into the BCP on or after July 1, 2012.

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                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 5228--A

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                               May 3, 2011
                               ___________

Introduced  by Sen. GRISANTI -- read twice and ordered printed, and when
  printed to be committed to the Committee on Environmental Conservation
  -- recommitted to  the  Committee  on  Environmental  Conservation  in
  accordance  with  Senate  Rule 6, sec. 8 -- committee discharged, bill
  amended, ordered reprinted as amended and recommitted to said  commit-
  tee

AN  ACT  to amend the environmental conservation law, the public service
  law, the general business law and the tax law, in relation  to  brown-
  field site cleanup; and to repeal section 31 of part H of chapter 1 of
  the  laws of 2003 amending the tax law relating to brownfield redevel-
  opment tax credits, relating thereto

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  Subdivision  2  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:
  2.  (A)  "Brownfield site" or "site" shall mean any real property, the
redevelopment or reuse of which [may be] IS complicated  by  the  GROUND
SURFACE  OR BELOW GROUND SURFACE LEVEL presence or [potential] SUSPECTED
presence of a contaminant REGARDLESS OF THE SOURCE OF SUCH  CONTAMINANT.
A BROWNFIELD SITE IS CHARACTERIZED BY ANY OR ALL OF THE FOLLOWING:
  (I)  A  CURRENT  AND  HISTORICAL  LEGACY  OF ABANDONMENT FROM PREVIOUS
INDUSTRIAL OR COMMERCIAL ACTIVITY.
  (II) A CURRENT AND HISTORICAL LEGACY OF SEVERE ECONOMIC OR  FUNCTIONAL
UNDERUTILIZATION  INCLUDING  USE  OF  SUCH  SITE AS A HAZARDOUS WASTE OR
SOLID WASTE FACILITY.
  (III) IN THE CASE OF A  SITE  CHARACTERIZED  PRIMARILY  BY  INDUSTRIAL
ACTIVITY, FUNCTIONAL OBSOLESCENCE.
  (B) Such term shall not include real property:
  [(a)]  (I) listed in the registry of inactive hazardous waste disposal
sites under section 27-1305 of this article at the time  of  application

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD11103-05-2

S. 5228--A                          2

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
article;  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)]  (II)  listed  on the national priorities list established under
authority of 42 U.S.C. section 9605;
  [(c)] (III) subject to an enforcement action under title seven or nine
of this article, [except]  OR  PERMITTED  AS  a  treatment,  storage  or
disposal  facility  [subject to a permit]; provided, that nothing herein
contained shall be deemed otherwise to exclude from  the  scope  of  the
term  "brownfield site" a hazardous waste treatment, storage or disposal
facility having interim status according to regulations  promulgated  by
the commissioner;
  [(d)]  (IV) subject to an order for cleanup pursuant to article twelve
of the navigation law or pursuant to title ten of article  seventeen  of
this  chapter  except such property shall not be deemed ineligible if it
is subject to a stipulation agreement; or
  [(e)] (V) subject to any other on-going state or federal environmental
enforcement action related to the contamination which is at or emanating
from the site subject to the present application.
  (VI) PROVIDED HOWEVER FOR OTHERWISE INELIGIBLE SITES GIVEN  A  CLASSI-
FICATION  AS  DESCRIBED  IN  SUBPARAGRAPH TWO OR THREE OF PARAGRAPH B OF
SUBDIVISION TWO OF SECTION 27-1305 OF THIS ARTICLE, AND INELIGIBLE SITES
DESCRIBED IN SUBPARAGRAPH (III) OF THIS PARAGRAPH, A VOLUNTEER SHALL NOT
BE DEEMED INELIGIBLE TO PARTICIPATE IN REGARDS TO  ANY  SUCH  INELIGIBLE
SITE  IF SUCH VOLUNTEER INTENDS TO ACQUIRE AND REDEVELOP SUCH REAL PROP-
ERTY AND ASSUME RESPONSIBILITY, NOT FOR PAST COSTS INCURRED PRIOR TO THE
APPLICATION, BUT FOR ALL FUTURE COSTS TO COMPLETE ANY REMAINING INVESTI-
GATION AND REMEDIATION UPON ACQUISITION OF SUCH REAL PROPERTY, OR  MAIN-
TAIN  LONG  TERM INSTITUTIONAL AND ENGINEERING CONTROLS OF THE SITE, AND
IMPLEMENT A REDEVELOPMENT PROJECT ON THE SITE, THE SITE CONFORMS TO  THE
DEFINITION  OF  A  BROWNFIELD SITE IN PARAGRAPH (A) OF THIS SUBDIVISION,
AND ENTERS INTO  A  BROWNFIELD  CLEANUP  AGREEMENT  IN  ACCORDANCE  WITH
SECTION  27-1409 OF THIS TITLE. ANY ON-GOING STATE ACTIONS AND/OR ORDERS
WILL NOT BE SUPERSEDED BY THE VOLUNTEER'S BROWNFIELD CLEANUP  AGREEMENT,
BUT  WILL  REMAIN IN FULL FORCE AND EFFECT UNTIL SUCH TIME AS THE VOLUN-
TEER RECEIVES A CERTIFICATE OF COMPLETION PURSUANT TO SECTION 27-1419 OF
THIS TITLE AND THEREAFTER TO THE  EXTENT  THE  VOLUNTEER  OR  SUBSEQUENT
OWNER  OR  OPERATOR  FAIL  TO  COMPLY WITH THE TERMS OF AN ENVIRONMENTAL
EASEMENT IF ONE HAD BEEN CREATED PURSUANT TO TITLE THIRTY-SIX OF ARTICLE
SEVENTY-ONE, OR AN ENVIRONMENTAL COVENANT AS OF THIS CHAPTER PURSUANT TO
TITLE FORTY-FIVE OF ARTICLE SEVENTY-ONE OF THIS CHAPTER.  IN  THE  EVENT
THE  VOLUNTEER  DOES  NOT  RECEIVE THE CERTIFICATE OF COMPLETION OR SUCH
CERTIFICATE OF COMPLETION IS REVOKED FOR ANY REASON, ANY AND  ALL  STATE
ENFORCEMENTS  ACTION  IMMEDIATELY WILL RESUME AFTER TIMELY NOTICE TO ALL
PARTIES.
  S 2. The opening paragraph of subdivision 2 of section 27-1409 of  the
environmental  conservation  law  is  designated paragraph (a) and a new
paragraph (b) is added to read as follows:

S. 5228--A                          3

  (B) NOTWITHSTANDING ANY PROVISION OF LAW TO THE CONTRARY,  ALL  APPLI-
CANTS  ACCEPTING  PARTICIPATION  IN THE BROWNFIELD CLEANUP PROGRAM SHALL
PAY ALL REASONABLE STATE COSTS, HOWEVER,  SUCH  STATE  COSTS  SHALL  NOT
EXCEED  FIVE  PERCENT OF THE TOTAL SITE PREPARATION COSTS, AS DEFINED BY
PARAGRAPH  TWO  OF SUBDIVISION (B) OF SECTION TWENTY-ONE OF THE TAX LAW,
PAID OR INCURRED BY THE APPLICANT, AND THE TOTAL STATE COSTS OWED  SHALL
BE  PAYABLE  UPON NINETY DAYS OF, (I) THE ISSUANCE OF THE CERTIFICATE OF
COMPLETION FOR THE PROJECT, OR, (II) UPON TERMINATION OF A PARTICIPANT'S
BROWNFIELD CLEANUP AGREEMENT BY THE DEPARTMENT FOR FAILURE  TO  SUBSTAN-
TIALLY  COMPLY WITH SUCH AGREEMENT'S TERMS AND CONDITIONS, OR (III), THE
VOLUNTARY WITHDRAWAL OF THE APPLICANT.  FAILURE TO REMIT DUE PAYMENTS TO
THE STATE  SHALL  RESULT  IN  THE  REVOCATION  OF  SUCH  CERTIFICATE  OF
COMPLETION,  AND  WILL PROHIBIT ANY FUTURE PARTICIPATION OF AN APPLICANT
IN THE PROGRAM. PAYMENT OF STATE COSTS SHALL BE MADE  TO  THE  HAZARDOUS
WASTE  REMEDIAL  FUND  ESTABLISHED PURSUANT TO SECTION NINETY-SEVEN-B OF
THE STATE FINANCE LAW.
  S 3. Article 71 of the environmental conservation law  is  amended  by
adding a new title 45 to read as follows:
                                TITLE 45
                         ENVIRONMENTAL COVENANTS
SECTION 71-4501. SHORT TITLE.
        71-4503. DECLARATION OF POLICY AND STATEMENT OF PURPOSE.
        71-4505. DEFINITIONS.
        71-4507. NATURE OF RIGHTS; SUBORDINATION OF INTERESTS.
        71-4509. CONTENTS OF ENVIRONMENTAL COVENANT.
        71-4511. VALIDITY; EFFECT ON OTHER INSTRUMENTS.
        71-4513. RELATIONSHIP TO OTHER LAND USE LAW.
        71-4515. NOTICE.
        71-4517. RECORDING.
        71-4519. COORDINATION WITH LOCAL GOVERNMENTS.
        71-4521. DURATION.
        71-4523. AMENDMENT OR TERMINATION BY CONSENT.
        71-4525. ENFORCEMENT OF ENVIRONMENTAL COVENANT.
        71-4527. UNIFORMITY OF APPLICATION AND CONSTRUCTION.
        71-4529. REGULATIONS.
        71-4531. SEVERABILITY.
S 71-4501. SHORT TITLE.
  THIS  TITLE  SHALL  BE KNOWN AND MAY BE CITED AS THE "UNIFORM ENVIRON-
MENTAL COVENANTS ACT".
S 71-4503. DECLARATION OF POLICY AND STATEMENT OF PURPOSE.
  THE LEGISLATURE HEREBY FINDS AND DECLARES THAT CONTAMINATED SITE REME-
DIAL PROGRAMS ARE AN IMPORTANT AND NECESSARY COMPONENT  OF  THE  STATE'S
POLICY  OF  RESTORING  AND REVITALIZING REAL PROPERTY LOCATED THROUGHOUT
NEW YORK STATE. THE LEGISLATURE FURTHER FINDS THAT WHEN AN ENVIRONMENTAL
REMEDIATION PROJECT LEAVES RESIDUAL CONTAMINATION AT  LEVELS  THAT  HAVE
BEEN  DETERMINED  TO  BE  SAFE  FOR A SPECIFIC USE, BUT NOT ALL USES, OR
INCLUDES ENGINEERED STRUCTURES THAT  MUST  BE  MAINTAINED  OR  PROTECTED
AGAINST  DAMAGE TO BE EFFECTIVE, IT IS NECESSARY TO PROVIDE AN EFFECTIVE
AND ENFORCEABLE MEANS OF ENSURING THE PERFORMANCE OF MAINTENANCE,  MONI-
TORING   OR  OPERATION  REQUIREMENTS,  AND  OF  ENSURING  THE  POTENTIAL
RESTRICTION OF FUTURE USES OF THE LAND, INCLUDING RESTRICTIONS ON DRILL-
ING FOR OR PUMPING GROUNDWATER, FOR AS  LONG  AS  ANY  RESIDUAL  CONTAM-
INATION  REMAINS HAZARDOUS. THE LEGISLATURE DECLARES, THEREFORE, THAT IT
IS IN THE PUBLIC INTEREST TO CREATE LAND USE CONTROLS  IN  THE  FORM  OF
ENVIRONMENTAL  COVENANTS BECAUSE SUCH ENVIRONMENTAL COVENANTS ARE NECES-
SARY FOR THE PROTECTION OF HUMAN  HEALTH  AND  THE  ENVIRONMENT  AND  TO

S. 5228--A                          4

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) 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,

S. 5228--A                          5

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.
  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;

S. 5228--A                          6

  (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 OF  THIS
SECTION,  AN  ENVIRONMENTAL  COVENANT  MAY  CONTAIN  OTHER  INFORMATION,
RESTRICTIONS, AND REQUIREMENTS AGREED TO BY THE PERSONS WHO  SIGNED  IT,
INCLUDING ANY:
  (A) LIMITATION ON AMENDMENT OR TERMINATION OF THE COVENANT IN ADDITION
TO THOSE CONTAINED IN SECTIONS 71-4521 AND 71-4523 OF THIS TITLE; AND
  (B)  RIGHTS  OF  THE  HOLDER  IN  ADDITION TO ITS RIGHT TO ENFORCE THE
COVENANT PURSUANT TO SECTION 71-4525 OF THIS TITLE.
  3. IN ADDITION TO OTHER CONDITIONS FOR ITS  APPROVAL  OF  AN  ENVIRON-
MENTAL  COVENANT,  THE DEPARTMENT MAY REQUIRE THOSE PERSONS SPECIFIED BY
THE DEPARTMENT WHO HAVE INTERESTS IN  THE  REAL  PROPERTY  TO  SIGN  THE
COVENANT.
  4. THE TITLE OWNERS SHALL FURNISH TO THE DEPARTMENT ABSTRACTS OF TITLE
AND  OTHER  DOCUMENTS  SUFFICIENT  TO ENABLE THE DEPARTMENT TO DETERMINE
THAT THE ENVIRONMENTAL COVENANTS SHALL BE AN EFFECTIVE  AND  ENFORCEABLE
MEANS OF ENSURING:
  (A)  THE PERFORMANCE OF MAINTENANCE, MONITORING AND OPERATING REQUIRE-
MENTS; AND
  (B) ACTIVITIES AND USE LIMITATIONS.
  5. UNTIL SUCH TIME AS THE ENVIRONMENTAL COVENANT IS EXTINGUISHED,  THE
PROPERTY  DEED  AND ALL SUBSEQUENT INSTRUMENTS OF CONVEYANCE RELATING TO
THE SUBJECT PROPERTY SHALL STATE IN AT  LEAST  FIFTEEN-POINT  BOLD-FACED
TYPE:    "THIS  PROPERTY IS SUBJECT TO AN ENVIRONMENTAL COVENANT HELD BY
THE NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION PURSUANT  TO
TITLE 45 OF ARTICLE 71 OF THE ENVIRONMENTAL CONSERVATION LAW." THE PROP-
ERTY  DEED  AND ALL SUBSEQUENT INSTRUMENTS OF CONVEYANCE RELATING TO THE
PROPERTY ENCUMBERED BY THE COVENANT SHALL REFERENCE, BY  BOOK  AND  PAGE
NUMBER,  THE ENVIRONMENTAL COVENANT. SUCH DEED AND INSTRUMENT SHALL ALSO
SPECIFY THAT THE  ELIGIBLE  PROPERTY  IS  SUBJECT  TO  THE  RESTRICTIONS
CONTAINED  IN  SUCH COVENANT. AN INSTRUMENT FOR THE PURPOSE OF CREATING,
CONVEYING, MODIFYING, OR TERMINATING AN ENVIRONMENTAL COVENANT SHALL NOT
BE EFFECTIVE UNLESS RECORDED.
S 71-4511. VALIDITY; EFFECT ON OTHER INSTRUMENTS.
  1. AN ENVIRONMENTAL COVENANT THAT COMPLIES WITH THIS TITLE  RUNS  WITH
THE LAND.

S. 5228--A                          7

  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 OF THIS SECTION OR BECAUSE IT WAS IDENTIFIED AS AN EASEMENT,  SERVI-
TUDE, DEED RESTRICTION, OR OTHER INTEREST.  THIS TITLE DOES NOT APPLY IN
ANY OTHER RESPECT TO SUCH AN INSTRUMENT.
  4.  THIS  TITLE DOES NOT INVALIDATE OR RENDER UNENFORCEABLE ANY INTER-
EST, WHETHER DESIGNATED AS AN ENVIRONMENTAL COVENANT OR OTHER  INTEREST,
THAT IS OTHERWISE ENFORCEABLE UNDER THE LAWS OF THIS STATE.
  5. THIS TITLE SHALL NOT AFFECT ANY INTERESTS OR RIGHTS IN REAL PROPER-
TY  WHICH  ARE  NOT  ENVIRONMENTAL  COVENANTS,  AND SHALL NOT AFFECT THE
RIGHTS OF OWNERS TO CONVEY ANY INTERESTS IN  REAL  PROPERTY  WHICH  THEY
COULD  NOW  CREATE  UNDER EXISTING LAW WITHOUT REFERENCE TO THE TERMS OF
THIS TITLE. NOTHING IN THIS TITLE SHALL DIMINISH THE POWERS  GRANTED  BY
ANY  OTHER  LAW  TO  ACQUIRE  INTERESTS  OR  RIGHTS  IN REAL PROPERTY BY
PURCHASE, GIFT, EMINENT DOMAIN, OR OTHERWISE AND TO  USE  THE  SAME  FOR
PUBLIC PURPOSES.
S 71-4513. RELATIONSHIP TO OTHER LAND USE LAW.
  THIS TITLE DOES NOT AUTHORIZE A USE OF REAL PROPERTY THAT IS OTHERWISE
PROHIBITED  BY  ZONING,  BY  LAW OTHER THAN THIS TITLE REGULATING USE OF
REAL PROPERTY, OR BY A RECORDED INSTRUMENT THAT HAS  PRIORITY  OVER  THE
ENVIRONMENTAL  COVENANT.  AN  ENVIRONMENTAL  COVENANT  MAY  PROHIBIT  OR
RESTRICT USES OF REAL PROPERTY WHICH ARE AUTHORIZED BY ZONING OR BY  LAW
OTHER THAN THIS TITLE.
S 71-4515. NOTICE.
  1.  A  COPY  OF AN ENVIRONMENTAL COVENANT, AND ANY AMENDMENT OR TERMI-
NATION THEREOF, SHALL BE PROVIDED IN THE MANNER REQUIRED BY THE  DEPART-
MENT TO:
  (A) EACH PERSON THAT SIGNED THE COVENANT;
  (B)  EACH  PERSON  HOLDING  A  RECORDED  INTEREST IN THE REAL PROPERTY
SUBJECT TO THE COVENANT;
  (C) EACH PERSON IN POSSESSION OF THE  REAL  PROPERTY  SUBJECT  TO  THE
COVENANT;
  (D) EACH AFFECTED LOCAL GOVERNMENT; AND
  (E) ANY OTHER PERSON THE DEPARTMENT REQUIRES.
  2.  THE VALIDITY OF A COVENANT IS NOT AFFECTED BY FAILURE TO PROVIDE A
COPY OF THE COVENANT AS REQUIRED UNDER THIS SECTION.
  3. THE DEPARTMENT SHALL INCLUDE A COPY OF EACH ENVIRONMENTAL  COVENANT
IN  THE DATABASE CREATED PURSUANT TO SECTION 27-1415 OF THIS CHAPTER AND
MAKE SUCH DATABASE READILY SEARCHABLE.
S 71-4517. RECORDING.
  1. AN ENVIRONMENTAL COVENANT AND ANY AMENDMENT OR TERMINATION  OF  THE
COVENANT  MUST BE RECORDED IN THE OFFICE OF THE RECORDING OFFICER IN THE
MANNER PRESCRIBED BY ARTICLE NINE OF THE  REAL  PROPERTY  LAW  IN  EVERY

S. 5228--A                          8

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.
  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.

S. 5228--A                          9

  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-
GRAPH, SUBDIVISION, OR PART THEREOF DIRECTLY INVOLVED IN THE CONTROVERSY
IN  WHICH  SUCH  JUDGMENT  SHALL HAVE BEEN RENDERED; PROVIDED THAT IF AN
ENVIRONMENTAL COVENANT CREATED PURSUANT TO THIS TITLE IS  DETERMINED  BY
ANY  COURT  OF COMPETENT JURISDICTION TO BE LAND OR WATER OR AN INTEREST
IN LAND OR WATER SUBJECT TO THE PROVISIONS OF ARTICLE  FOURTEEN  OF  THE
CONSTITUTION,  THEN  THE  AUTHORITY OF THE STATE TO HOLD OR ACQUIRE SUCH
COVENANT AND THE CONVEYANCE TO THE STATE OF SUCH COVENANT SHALL BE  VOID
AB INITIO.
  S 4. Subdivision (b) of section 27-1318 of the environmental conserva-
tion  law,  as amended by section 2 of part E of chapter 577 of the laws
of 2004, is amended to read as follows:
  (b) Within sixty days of commencement  of  the  remedial  design,  the
owner  of  an  inactive hazardous waste disposal site, and/or any person
responsible for implementing a remedial  program  at  such  site,  where
institutional  or  engineering  controls  are  employed pursuant to this
title, shall execute an environmental easement pursuant to  title  thir-
ty-six of article seventy-one of this chapter OR AN ENVIRONMENTAL COVEN-
ANT PURSUANT TO TITLE FORTY-FIVE OF ARTICLE SEVENTY-ONE OF THIS CHAPTER.
  S 5. Paragraph (d) of subdivision 7 of section 27-1415 of the environ-
mental conservation law, as added by section 1 of part A of chapter 1 of
the laws of 2003, is amended to read as follows:
  (d)  The  commissioner  shall  create, update, and maintain a database
system for public information purposes and  to  monitor  and  track  all
brownfield  sites  subject  to  this  title. Data incorporated into such
system for each site for which information has been  collected  pursuant
to  this title shall include, but shall not be limited to, a site summa-
ry, name of site owner, location,  status  of  site  remedial  activity,
[and,  if  one  has been created pursuant to title thirty-six of article
seventy-one of this chapter, a copy of the environmental easement,]  and
a  contact  number  to obtain additional information. THE DATABASE SHALL

S. 5228--A                         10

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-
tronically.    Information from this database shall be incorporated into
the geographic information system created and maintained by the  depart-
ment pursuant to section 3-0315 of this chapter.
  S 6. Paragraph (e) of subdivision 2 of section 27-1419 of the environ-
mental conservation law, as added by section 1 of part A of chapter 1 of
the laws of 2003, is amended to read as follows:
  (e) a certification that any use restrictions, institutional controls,
engineering  controls  and/or any operation and maintenance requirements
applicable to the  site  are  contained  in  an  environmental  easement
created and recorded pursuant to title thirty-six of article seventy-one
of this chapter OR AN ENVIRONMENTAL COVENANT CREATED AND RECORDED PURSU-
ANT  TO  TITLE  FORTY-FIVE  OF  SUCH ARTICLE and that any affected local
governments, as defined in title thirty-six of SUCH article [seventy-one
of this chapter] have been notified that such easement OR  COVENANT  has
been recorded;
  S 7. Paragraph (g) of subdivision 2 of section 56-0503 of the environ-
mental  conservation law, as amended by section 4 of part D of chapter 1
of the laws of 2003, is amended to read as follows:
  (g) An agreement by the municipality that it shall put into place  any
engineering and/or institutional controls (including environmental ease-
ments  pursuant to title thirty-six of article seventy-one of this chap-
ter OR ENVIRONMENTAL COVENANTS PURSUANT  TO  TITLE  FORTY-FIVE  OF  SUCH
ARTICLE)  that  the  department  may deem necessary to allow the contem-
plated use  to  proceed,  that  such  engineering  and/or  institutional
controls  shall be binding on such municipality, any successor in title,
and any lessees and that any successors in title and any lessees  cannot
challenge state enforcement of such controls;
  S  8.  Paragraph 5 of subdivision (a) of section 21 of the tax law, as
amended by section 1 of part H of chapter 577 of the laws  of  2004,  is
amended to read as follows:
  (5)  Applicable  percentage. For purposes of paragraphs two, three and
four of this subdivision, the  applicable  percentage  shall  be  twelve
percent  [in  the  case  of  credits claimed under article nine, nine-A,
thirty-two or thirty-three of this chapter, and ten percent in the  case
of  credits  claimed  under  article twenty-two of this chapter,] except
that where at least fifty percent of the  area  of  the  qualified  site
relating  to  the  credit  provided for in this section is located in an
environmental zone as defined in paragraph six  of  subdivision  (b)  of
this  section,  the applicable percentage shall be increased by an addi-
tional eight percent. Provided, however, as afforded in section  27-1419
of  the environmental conservation law, if the certificate of completion
indicates that the qualified site has been remediated to Track 1 as that

S. 5228--A                         11

term is described in subdivision four of section 27-1415 of the environ-
mental conservation law, the applicable  percentage  set  forth  in  the
first sentence of this paragraph shall be increased by an additional two
percent.
  S  9.  Subparagraph (A) of paragraph 3-a of subdivision (a) of section
21 of the tax law, as added by chapter 390  of  the  laws  of  2008,  is
amended to read as follows:
  (A)  Notwithstanding  any  other provision of law to the contrary, the
tangible property credit component  available  for  any  qualified  site
pursuant  to  paragraph three of this subdivision shall not exceed thir-
ty-five million dollars or three times THE SUM OF the costs included  in
the calculation of the site preparation credit component and the on-site
groundwater  remediation credit component under paragraphs two and four,
respectively, of this subdivision, AND THE COSTS THAT  WOULD  HAVE  BEEN
INCLUDED  IN  THE  CALCULATION  OF  SUCH COMPONENTS IF NOT TREATED AS AN
EXPENSE AND DEDUCTED PURSUANT TO SECTION 198  OF  THE  INTERNAL  REVENUE
CODE,  whichever  is less; provided, however, that: (1) in the case of a
qualified site to be used primarily for  manufacturing  activities,  the
tangible  property  credit  component  available  for any qualified site
pursuant to  paragraph  three  of  this  subdivision  shall  not  exceed
[forty-five] ONE HUNDRED FIFTY million dollars or [six] TWENTY times THE
SUM  OF  the  costs  included in the calculation of the site preparation
credit component and the on-site groundwater remediation  credit  compo-
nent  under  paragraphs two and four, respectively, of this subdivision,
AND THE COSTS THAT WOULD HAVE BEEN INCLUDED IN THE CALCULATION  OF  SUCH
COMPONENTS IF NOT TREATED AS AN EXPENSE AND DEDUCTED PURSUANT TO SECTION
198  OF  THE  INTERNAL  REVENUE  CODE,  whichever  is  less; and (2) the
provisions of this paragraph shall not apply to any qualified  site  for
which  the  department of environmental conservation has issued a notice
to the taxpayer before June twenty-third, two thousand  eight  that  its
request  for  participation  has  been accepted under subdivision six of
section 27-1407 of the environmental conservation law.
  S 10. Paragraph 6 of subdivision (b) of section 21 of the tax law,  as
amended  by  section  1  of  part  H of chapter 577 of the laws of 2004,
subparagraph (B) and the closing paragraph as amended by  section  1  of
part G of chapter 62 of the laws of 2006, is amended to read as follows:
  (6) Environmental zones (EN-Zones). An "environmental zone" shall mean
an  area designated as such by the commissioner of economic development.
Such areas so designated are areas which are  census  tracts  and  block
numbering  areas  which,  as  of  the [two thousand] MOST RECENT census,
satisfy either of the following criteria:
  (A) areas that have both:
  (i) a poverty rate of at least twenty percent for the  year  to  which
the data relate; and
  (ii)  an  unemployment  rate of at least one and one-quarter times the
statewide unemployment rate for the year to which the data relate, or;
  (B) areas that have a poverty rate of at least two times  the  poverty
rate for the county in which the areas are located for the year to which
the  data relate [provided, however, that a qualified site shall only be
deemed to be located in an environmental zone  under  this  subparagraph
(B)  if such site was the subject of a brownfield site cleanup agreement
pursuant to section 27-1409 of the environmental conservation  law  that
was entered into prior to September first, two thousand ten].
  Such  designation  shall  be made and a list of all such environmental
zones shall be established by the commissioner of  economic  development
no later than December thirty-first, two thousand [four provided, howev-

S. 5228--A                         12

er, that a qualified site shall only be deemed to be located in an envi-
ronmental zone under subparagraph (B) of this paragraph if such site was
the  subject  of a brownfield site cleanup agreement pursuant to section
27-1409  of  the  environmental  conservation  law that was entered into
prior to September first, two thousand ten] TWELVE.
  S 11. Paragraph 5 of subdivision (a) of section 22 of the tax law,  as
amended  by  section  4  of  part  H of chapter 577 of the laws of 2004,
subparagraph (B) and the closing paragraph as amended by  section  2  of
part G of chapter 62 of the laws of 2006, is amended to read as follows:
  (5) Environmental zones (EN-Zones). An "environmental zone" shall mean
an  area designated as such by the commissioner of economic development.
Such areas so designated are areas which are  census  tracts  and  block
numbering  areas  which,  as  of  the [two thousand] MOST RECENT census,
satisfy either of the following criteria:
  (A) areas that have both:
  (i) a poverty rate of at least twenty percent for the  year  to  which
the data relate;
  (ii)  an  unemployment  rate of at least one and one-quarter times the
statewide unemployment rate for the year to which the data relate, or;
  (B) areas that have a poverty rate of at least two times  the  poverty
rate for the county in which the areas are located for the year to which
the data relate[, provided, however, that a qualified site shall only be
deemed  to  be  located in an environmental zone under this subparagraph
(B) if such site was the subject of a brownfield site cleanup  agreement
pursuant  to  section 27-1409 of the environmental conservation law that
was entered into prior to September first, two thousand ten].
  Such designation shall be made and a list of  all  such  environmental
zones  shall  be established by the commissioner of economic development
no later than December thirty-first, two thousand [four provided, howev-
er, that a qualified site shall only be deemed to be located in an envi-
ronmental zone under subparagraph (B) of this paragraph if such site was
the subject of a brownfield site cleanup agreement pursuant  to  section
27-1409  of  the  environmental  conservation  law that was entered into
prior to September first, two thousand ten] TWELVE.
  S 12. Subdivision (a) of section 23 of the  tax  law,  as  amended  by
section  10  of part H of chapter 577 of the laws of 2004, is amended to
read as follows:
  (a) Allowance of credit. General. A  taxpayer  subject  to  tax  under
article  nine,  nine-A,  twenty-two,  thirty-two or thirty-three of this
chapter shall be allowed a credit against  such  tax,  pursuant  to  the
provisions  referenced in subdivision (e) of this section. The amount of
such credit shall be equal to the lesser  of  [thirty]  NINETY  thousand
dollars  or  fifty  percent of the premiums paid on or after the date of
the brownfield site cleanup agreement executed by the taxpayer  and  the
department  of environmental conservation pursuant to section 27-1409 of
the environmental conservation law by  the  taxpayer  for  environmental
remediation insurance issued with respect to a qualified site.
  S  13.  Section 31 of part H of chapter 1 of the laws of 2003 amending
the tax  law  relating  to  brownfield  redevelopment  tax  credits,  is
REPEALED.
  S  14.  Severability. If any clause, sentence, paragraph, subdivision,
section or part of this act shall be adjudged by any court of  competent
jurisdiction  to  be  invalid, such judgment shall not affect, impair or
invalidate the remainder thereof, but shall be confined in its operation
to the clause, sentence, paragraph, subdivision, section or part thereof
directly involved in the controversy in which such judgment  shall  have

S. 5228--A                         13

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  15.  This  act  shall  take effect immediately and shall apply to a
qualified site for which the commissioner of environmental  conservation
has  issued  a  notice  to the taxpayer or other applicant after July 1,
2012 that its request for participation has been accepted under subdivi-
sion 6 of section 27-1407 of the environmental conservation law.

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