2000-01 RETRIEVE BILL TED - 001

                STATE OF NEW YORK
       ________________________________________________________________________

           S. 6292                                                  A. 9292

                SENATE - ASSEMBLY

                                   January 13, 2000
                                      ___________

       IN  SENATE -- A BUDGET BILL, submitted by the Governor pursuant to arti-
         cle seven of the Constitution -- read twice and ordered  printed,  and
         when printed to be committed to the Committee on Finance

       IN ASSEMBLY -- A BUDGET BILL, submitted pursuant to article seven of the
         Constitution  --  read  once and referred to the Committee on Ways and
         Means

       AN ACT to authorize the dormitory authority of the state of New York  to
         provide  funding  for  the  Cornell  university  theory center (A); to
         provide for the use of utility assessment  funds  (B);  to  amend  the
         environmental  conservation  law,  in relation to surf clams and ocean
         quahogs (C); to amend chapter 1 of the laws of 1997 amending the envi-
         ronmental conservation law relating to project selections, in relation
         to extending the effectiveness of such chapter (D); to amend the envi-
         ronmental conservation law, the civil  practice  law  and  rules,  the
         general municipal law, the navigation law, the public authorities law,
         the  public  health  law,  the real property law and the state finance
         law, in relation  to  the  remediation  of  inactive  hazardous  waste
         disposal sites and the cleanup and removal of petroleum discharges and
         to  repeal  section  27-1316 of the environmental conservation law and
         section 1389-e of the public health law  relating  thereto;  to  amend
         chapter  83  of  the  laws  of 1995 amending the state finance law and
         other laws relating to bonds, notes and revenue, in relation to making
         permanent certain provisions thereof; and to amend  the  tax  law,  in
         relation  to  a  tax credit for brownfield redevelopment (E); to amend
         the environmental conservation law  and  the  state  finance  law,  in
         relation  to  fishing  and  hunting licenses and fees therefor; and to
         repeal certain provisions of the environmental conservation law relat-
         ing thereto (F); to amend the real property tax law,  in  relation  to
         state  reimbursement for forest tax exemptions (G); to amend the state
         finance law and the environmental conservation law, in relation to the
         environmental protection fund and repealing subdivision 7  of  section
         92-s  of  the state finance law relating to the application of certain
         state  assistance  payments  (H);  to  amend  the   emergency   tenant
         protection act of nineteen seventy-four, in relation to the obligation
         of the city of New York to fund its administration (I); to provide for
         the  use  of  petroleum overcharge restitution funds (J); to amend the

        EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD12334-02-0

       S. 6292                             2                            A. 9292

         transportation law, in relation to the deposit of motor carrier regis-
         tration fees (K); and to amend the public authorities law and  chapter
         329  of the laws of 1991 amending the state finance law and other laws
         relating  to the establishment of the dedicated bridge and trust fund,
         in relation to the authorization of the state's five-year  transporta-
         tion plan (L)

         The  People of the State of New York, represented in Senate and Assem-
       bly, do enact as follows:

    1    Section 1. This act enacts into law major  components  of  legislation
    2  which are necessary to implement the state fiscal plan for the 2000-2001
    3  state  fiscal  year.  Each  component  is wholly contained within a Part
    4  identified as Parts A through L. The effective date for each  particular
    5  provision contained within such Part is set forth in the last section of
    6  such Part. Any provision in any section contained within a Part, includ-
    7  ing  the  effective date of the Part, which makes reference to a section
    8  "of this act", when used in connection with that  particular  component,
    9  shall  be  deemed  to mean and refer to the corresponding section of the
   10  Part in which it is found. Section three of  this  act  sets  forth  the
   11  general effective date of this act.

   12                                   PART A

   13    Section 1. The dormitory authority of the state of New York is author-
   14  ized  to enter into an agreement with Cornell university for the support
   15  of operation of the parallel  computing  supercomputers  at  the  theory
   16  center  for supercomputers in connection with the business of the dormi-
   17  tory authority in an amount not to exceed $1,200,000 over amounts previ-
   18  ously authorized.
   19    § 2. This act shall take effect April 1, 2000.

   20                                   PART B

   21    Section 1. Expenditures of moneys appropriated in  a  chapter  of  the
   22  laws  of  2000 to the energy research and development authority from the
   23  special revenue funds - other / state operations, miscellaneous  special
   24  revenue  fund  -  339,  energy  research  and planning account under the
   25  research, development and demonstration and policy and planning programs
   26  for services and expenses  for  the  research,  development  and  demon-
   27  stration  and  policy  and  planning  programs  shall  be subject to the
   28  provisions of this section.  Notwithstanding the provisions of  subdivi-
   29  sion  4-a of section 18-a of the public service law all moneys committed
   30  or expended shall be reimbursed by assessment against  gas  corporations
   31  and  electric corporations as defined in section 2 of the public service
   32  law, and the total amount which may be charged to  any  gas  corporation
   33  and  any electric corporation shall not exceed one cent per one thousand
   34  cubic feet of gas sold and .010 cent per  kilowatt-hour  of  electricity
   35  sold  by  such  corporations  in  their intrastate utility operations in
   36  calendar year 1998. Such amounts shall  be  excluded  from  the  general
   37  assessment  provisions  of  subdivision  2 of section 18-a of the public
   38  service law, but shall be billed and paid in the  manner  set  forth  in
   39  such subdivision and upon receipt shall be paid to the state comptroller
   40  for  deposit  in  the  state  treasury  for  credit to the miscellaneous
   41  special revenue fund. The director of  the  budget  shall  not  issue  a

       S. 6292                             3                            A. 9292

    1  certificate  of  approval with respect to the commitment and expenditure
    2  of moneys hereby appropriated until the chair  of  the  authority  shall
    3  have  submitted,  and  the director of the budget shall have approved, a
    4  comprehensive  financial  plan  encompassing all moneys available to and
    5  all anticipated commitments and expenditures by the authority  from  any
    6  source  for  the  operations  of  the  authority. Copies of the approved
    7  comprehensive financial plan  shall  be  immediately  submitted  by  the
    8  director  of the budget to the chairs and secretaries of the legislative
    9  fiscal committees.
   10    § 2. This act shall take effect April 1, 2000.

   11                                   PART C

   12    Section 1. Subdivision 14 of  section  13-0309  of  the  environmental
   13  conservation law, as amended by section 5 of part A of chapter 58 of the
   14  laws of 1998, is amended to read as follows:
   15    14.  The  department[, until January first, two thousand one] shall be
   16  entitled to collect fifteen cents   per bushel of  surf  clams  and  ten
   17  cents  per bushel of ocean quahogs taken from all certified waters to be
   18  deposited in the surf clam/ocean quahog account as provided  in  section
   19  eighty-three of the state finance law.
   20    § 2. This act shall take effect immediately.

   21                                   PART D

   22    Section  1.  Section  8 of chapter 1 of the laws of 1997, amending the
   23  environmental  conservation  law  relating  to  project  selections,  is
   24  amended to read as follows:
   25    §  8.    This  act  shall take effect immediately except that this act
   26  shall not apply to such projects which are to be funded under the budget
   27  for fiscal year 1997-98.  This act shall expire and be  deemed  repealed
   28  April  1, [2000] 2003 provided, however, that such expiration and repeal
   29  shall not affect or diminish the authority of  any  department,  agency,
   30  public  benefit  corporation,  or public authority to contract for state
   31  assistance payments, and  provided  further  that  such  expiration  and
   32  repeal shall not affect the validity or effectiveness of any regulations
   33  or  guidelines  promulgated  to implement the Clean Water/Clean Air Bond
   34  Act of 1996.
   35    § 2. This act shall take effect immediately and  shall  be  deemed  to
   36  have been in full force and effect on and after April 1, 2000.

   37                                   PART E

   38    Section  1. Subdivisions 1, 3 and 4 of section 27-1301 of the environ-
   39  mental conservation law, subdivision 1 as amended by chapter 857 of  the
   40  laws  of  1982  and  subdivisions 3 and 4 as added by chapter 282 of the
   41  laws of 1979, are amended to read as follows:
   42    1. "Hazardous waste" means a waste which appears on the list or satis-
   43  fies the characteristics promulgated by  the  commissioner  pursuant  to
   44  section  27-0903 of this [chapter and, until, but not after, the promul-
   45  gation of such list, a waste or combination of wastes, which because  of
   46  its quantity, concentration, or physical, chemical or infectious charac-
   47  teristics may:
   48    a.  Cause,  or significantly contribute to an increase in mortality or
   49  an  increase  in  serious  irreversible  or  incapacitating   reversible
   50  illness; or

       S. 6292                             4                            A. 9292

    1    b.  Pose  a substantial present or potential hazard to human health or
    2  the environment when improperly treated, stored,  transported,  disposed
    3  or  otherwise  managed]  article  and any substance which appears on the
    4  list promulgated pursuant to section 37-0103 of this chapter;  provided,
    5  however, that the term "hazardous waste" does not include:
    6    a.  Natural gas, natural gas liquids, liquefied natural gas, synthetic
    7  gas usable for fuel, or mixtures of natural gas and such synthetic  gas;
    8  nor
    9    b.  The  residue of emissions from the engine exhaust of a motor vehi-
   10  cle, rolling  stock,  aircraft,  vessel,  or  pipeline  pumping  station
   11  engine; nor
   12    c. Source, byproduct, or special nuclear material from a nuclear inci-
   13  dent,  as  those  terms are defined in the Atomic Energy Act of 1954, if
   14  such release is  subject  to  requirements  with  respect  to  financial
   15  protection  established  under  section 170 of such act (42 U.S.C. 2210)
   16  or, for the purpose of section 104 of  the  comprehensive  environmental
   17  response, compensation and liability act of 1980 (42 U.S.C. 9604) or any
   18  other response action, any source, byproduct, or special nuclear materi-
   19  al from any processing site designated under section 102(a)(1) or 302(a)
   20  of  the  Uranium  Mill Tailings Radiation Control Act of 1978 (42 U.S.C.
   21  7912(a)(1) or 7942(a)); nor
   22    d. Petroleum as defined in section  one  hundred  seventy-two  of  the
   23  navigation  law,  even  if appearing on the list promulgated pursuant to
   24  section 37-0103 of this chapter.
   25    3. "Inactive hazardous waste disposal  site  remedial  program"  means
   26  activities  undertaken  to  eliminate, remove, abate, control or monitor
   27  health and/or environmental hazards or potential hazards  in  connection
   28  with  inactive  hazardous waste disposal sites or to treat or dispose of
   29  wastes and waste contaminated materials from such sites  including,  but
   30  not limited to, grading, contouring, trenching, grouting, capping, exca-
   31  vation,   transporting,  incineration,  chemical  treatment,  biological
   32  treatment or construction of leachate collection and  treatment  facili-
   33  ties.    The  department may include institutional controls and/or engi-
   34  neering controls as components of an inactive hazardous  waste  disposal
   35  site  remedial program but only if the owner of such real property annu-
   36  ally submits to the department  a  written  statement  certifying  under
   37  penalty  of  perjury  that  the  institutional  controls and engineering
   38  controls employed to remediate such contamination are unchanged from the
   39  previous certification and that nothing has occurred that would  consti-
   40  tute  a violation of any of such controls, and gives access to such real
   41  property reasonable under the circumstances to evaluate continued  main-
   42  tenance  of such controls. The department shall establish and maintain a
   43  database with relevant information on such controls and shall make  such
   44  information  available for public inspection at the office of the county
   45  clerk or register for each county and at the office of  the  town  clerk
   46  for each town in Suffolk and Nassau counties.
   47    4.  "Person"  means  an  individual, trust, firm, joint stock company,
   48  corporation, partnership, association, state, municipality,  commission,
   49  political  subdivision  of  a  state,  public benefit corporation or any
   50  interstate body.
   51    a. Such term includes any  person  owning  or  operating  an  inactive
   52  hazardous  waste  disposal  site but does not include a person that is a
   53  lender that, without participating in the management of such site, holds
   54  indicia of ownership primarily to protect the security interest  of  the
   55  person  in such site; nor does it include a person that is a lender that
   56  did not participate in management of such  site  prior  to  foreclosure,

       S. 6292                             5                            A. 9292

    1  notwithstanding  that the person forecloses on such site and after fore-
    2  closure, sells, re-leases (in the case of a lease finance  transaction),
    3  or  liquidates  such site, maintains business activities, winds up oper-
    4  ations,  undertakes in a non-negligent manner remedial actions under the
    5  direction of the department, with respect to such  site,  or  takes  any
    6  other  measure  to preserve, protect, or prepare such site prior to sale
    7  or disposition, if the person seeks to sell, re-lease (in the case of  a
    8  lease  finance transaction), or otherwise divest the person of such site
    9  at the earliest practicable commercially reasonable time, on commercial-
   10  ly reasonable terms, taking into account market conditions and legal and
   11  regulatory requirements. For purposes of this paragraph:
   12    (i) the term "participate in management" means actually  participating
   13  in  the  management  or  operational  affairs of such site; and does not
   14  include merely having the capacity  to  influence,  or  the  unexercised
   15  right to control, such site's operations;
   16    (ii)  a  person  that  is a lender and that holds indicia of ownership
   17  primarily to protect a security interest in such site shall  be  consid-
   18  ered  to  participate in management only if, while the borrower is still
   19  in possession of such site, the person exercises decisionmaking  control
   20  over  the  environmental  compliance related to such site, such that the
   21  person has undertaken responsibility for the hazardous waste handling or
   22  disposal practices related to such site; or exercises control at a level
   23  comparable to that of a manager of such site, such that the  person  has
   24  assumed  or manifested responsibility for the overall management of such
   25  site encompassing day-to-day decisionmaking  with  respect  to  environ-
   26  mental  compliance;  or over all or substantially all of the operational
   27  functions (as distinguished from financial or administrative  functions)
   28  of such site other than the function of environmental compliance;
   29    (iii) the term "participate in management" does not include performing
   30  an  act or failing to act prior to the time at which a security interest
   31  is created in such site;
   32    (iv) the term "participate in management" does not include  holding  a
   33  security  interest  or  abandoning  or  releasing  a  security interest;
   34  including in the terms of an extension of credit, or in  a  contract  or
   35  security  agreement  relating to the extension, a covenant, warranty, or
   36  other term or condition that relates to environmental compliance;  moni-
   37  toring  or enforcing the terms and conditions of the extension of credit
   38  or security interest; monitoring or undertaking one or more  inspections
   39  of  such  site;  requiring  a  response  action or other lawful means of
   40  addressing the release or threatened release of  a  hazardous  waste  in
   41  connection with  such site prior to, during, or on the expiration of the
   42  term  of the extension of credit; providing financial or other advice or
   43  counseling in an effort to mitigate, prevent, or cure default or diminu-
   44  tion in the value of such site; restructuring, renegotiating, or  other-
   45  wise  agreeing  to  alter  the  terms and conditions of the extension of
   46  credit or security interest; exercising  forbearance;  exercising  other
   47  remedies  that may be available under applicable law for the breach of a
   48  term or condition of the extension of credit or security  agreement;  or
   49  conducting in a non-negligent manner a remedial action directly or under
   50  the direction of the department, if the actions do not rise to the level
   51  of  participating in management (within the meaning of subparagraphs (i)
   52  and (ii) of this paragraph);
   53    (v) the term "extension of credit" includes  a  lease  finance  trans-
   54  action  in  which  the lessor does not initially select such leased site
   55  and does not during the lease term control the daily operations or main-
   56  tenance of such site; or that  conforms with regulations issued  by  the

       S. 6292                             6                            A. 9292

    1  appropriate  federal  banking agency (as defined in 12 USC section 1813)
    2  or the superintendent  of  banks  or  with  regulations  issued  by  the
    3  National Credit Union Administrative Board, as appropriate;
    4    (vi)  the term "financial or administrative function" includes a func-
    5  tion such as  that  of  a  credit  manager,  accounts  payable  officer,
    6  accounts  receivable  officer,  personnel manager, comptroller, or chief
    7  financial officer, or a similar function;
    8    (vii) the terms  "foreclosure"  and  "foreclose"  mean,  respectively,
    9  acquiring  and  to  acquire,  such site through purchase at sale under a
   10  judgment or decree, power of sale, or nonjudicial  foreclosure  sale;  a
   11  deed  in  lieu  of foreclosure, or similar conveyance from a trustee; or
   12  repossession, if such site was  security  for  an  extension  of  credit
   13  previously  contracted;  conveyance  pursuant  to an extension of credit
   14  previously contracted, including the termination of a  lease  agreement;
   15  or any other formal or informal manner by which the person acquires, for
   16  subsequent  disposition, title to or possession of such site in order to
   17  protect the security interest of the person;
   18    (viii) the term "lender" means an insured depository  institution  (as
   19  defined in 12 USC Section 1813); an insured credit union  (as defined in
   20  12  USC  section  1752);  a bank or association chartered under the Farm
   21  Credit Act of 1971 (12 U.S.C.  2001 et seq.); a leasing or trust company
   22  that is an affiliate of an insured depository  institution;  any  person
   23  (including a successor or assignee of any such person) that makes a bona
   24  fide  extension  of  credit  to or takes or acquires a security interest
   25  from a nonaffiliated person; the Federal National Mortgage  Association,
   26  the  Federal  Home  Loan  Mortgage Corporation, the Federal Agricultural
   27  Mortgage Corporation, or any other entity that in  a  bona  fide  manner
   28  buys  or  sells  loans  or  interests in loans; a person that insures or
   29  guarantees against a default in the repayment of an extension of credit,
   30  or acts as a surety with respect to an extension of credit, to a  nonaf-
   31  filiated  person;  and  a  person that provides title insurance and that
   32  acquires such site as a result of assignment or conveyance in the course
   33  of underwriting claims and claims settlement;
   34    (ix) the term "operational function" includes a function such as  that
   35  of  a  facility  or  plant  manager, operations manager, chief operating
   36  officer, or chief executive officer; and
   37    (x) the term "security interest" includes a right  under  a  mortgage,
   38  deed  of  trust,  assignment, judgment lien, pledge, security agreement,
   39  factoring agreement, or lease and any other right accruing to  a  person
   40  to  secure  the  repayment  of  money, the performance of a duty, or any
   41  other obligation by a nonaffiliated person.
   42    b. Such term includes any  person  owning  or  operating  an  inactive
   43  hazardous waste disposal site but does not include the state of New York
   44  or  a public corporation which acquired, and thereafter retained without
   45  participating in the management  of  such  site,  ownership  or  control
   46  involuntarily  by virtue of its function as sovereign. Neither the state
   47  of New York nor any public corporation shall incur  under  this  chapter
   48  any liability as to matters within the jurisdiction of the department as
   49  a  result  of  actions  taken in response to an emergency created by the
   50  release or threatened release of  hazardous  waste  by  another  person,
   51  provided  that  such  actions by the state or public corporation did not
   52  constitute reckless, willful, wanton or intentional misconduct. As  used
   53  in this paragraph:
   54    (i)  "public corporation" means a public corporation as defined in the
   55  general construction law;

       S. 6292                             7                            A. 9292

    1    (ii) involuntary acquisition of ownership or control includes, but  is
    2  not limited to, the following:
    3    (A)  acquisitions by the state or a public corporation in its capacity
    4  as   sovereign,   including   acquisitions   pursuant   to   abandonment
    5  proceedings, or escheat, or any other circumstance of involuntary acqui-
    6  sition in its capacity as sovereign;
    7    (B)  acquisitions  by the state or a public corporation, or its agent,
    8  acting as a conservator or receiver pursuant to a clear and direct stat-
    9  utory mandate or regulatory authority;
   10    (C) acquisitions of assets through foreclosure and its equivalents, or
   11  otherwise, by the state or a public corporation in the course of  admin-
   12  istering a loan, loan guarantee or loan insurance program;
   13    (D)  acquisitions  by  the  state  or a public corporation pursuant to
   14  seizure or forfeiture authority; and
   15    (E) acquisitions by the state or a public corporation as the result of
   16  tax delinquency proceedings, provided, that such ownership or control is
   17  not retained primarily for investment purposes;
   18    (iii) "management participation" means that the state or public corpo-
   19  ration is actually participating  in the management or operation of  the
   20  property but does not include the mere capacity to influence, ability to
   21  influence  or unexercised right to control the operation  of the proper-
   22  ty.
   23  Nothing contained in this paragraph affects the applicability  of  para-
   24  graph  a of this subdivision in favor of a holder of a security interest
   25  according to the terms thereof.
   26    c. Such term includes any  person  owning  or  operating  an  inactive
   27  hazardous waste disposal site, including a fiduciary; provided, however,
   28  that  such  liability  on  the  part of a fiduciary shall not exceed the
   29  assets held in the fiduciary capacity if such person is not liable inde-
   30  pendently of such person's ownership as a fiduciary or actions taken  in
   31  a fiduciary capacity including, but not limited to, the fiduciary negli-
   32  gently  causing  or contributing to the release or threatened release of
   33  hazardous waste at such site.
   34    (i) For purposes of this paragraph:
   35    (A) the term "fiduciary" means a person  acting  for  the  benefit  of
   36  another  party  as  a bona fide trustee; executor; administrator; custo-
   37  dian; guardian of estates or guardian ad litem;  receiver;  conservator;
   38  committee  of  estates of incapacitated person; personal representative;
   39  trustee (including a successor  to a trustee) under an indenture  agree-
   40  ment,  trust  agreement, lease, or similar financing agreement, for debt
   41  securities, certificates of interest or certificates of participation in
   42  debt securities, or other forms of indebtedness as to which the  trustee
   43  is not, in the capacity of trustee, the lender; or representative in any
   44  other  capacity  that  the  department,  after  providing public notice,
   45  determines to be similar to the various capacities previously  described
   46  in  this  paragraph; and does not include either a person that is acting
   47  as a fiduciary with respect to a trust or other  fiduciary  estate  that
   48  was  organized  for  the  primary purpose of, or is engaged in, actively
   49  carrying on a trade or business for profit unless  the  trust  or  other
   50  fiduciary  estate  was created as part of, or to facilitate, one or more
   51  estate plans or because of the incapacity  of  a  natural  person  or  a
   52  person  that acquires ownership or control of a property with the objec-
   53  tive purpose of avoiding liability of the person or any other person.
   54    (B) the term "fiduciary capacity" means the capacity of  a  person  in
   55  holding title to a property, or otherwise having control of or an inter-

       S. 6292                             8                            A. 9292

    1  est  in  a property, pursuant to the exercise of the responsibilities of
    2  the person as a fiduciary.
    3    (ii)  Nothing  in  this  paragraph affects the rights or immunities or
    4  other defenses that are available under law that  are  applicable  to  a
    5  person  subject  to  this  subdivision;  or  creates any liability for a
    6  person or a private right of action against a  fiduciary  or  any  other
    7  person.
    8    (iii)  Nothing  in  this  paragraph applies to a person if that person
    9  acts in a capacity other than that of a fiduciary or  in  a  beneficiary
   10  capacity  and  in  that capacity, directly or indirectly benefits from a
   11  trust or fiduciary relationship; or is a  beneficiary  and  a  fiduciary
   12  with  respect  to the same fiduciary estate and as a fiduciary, receives
   13  benefits that exceed customary or  reasonable  compensation,  and  inci-
   14  dental benefits, permitted under other applicable law.
   15    (iv)  This  paragraph  does  not  preclude  a claim under this chapter
   16  against the assets of the estate or trust administered by the fiduciary;
   17  or a nonemployee agent or independent contractor retained by  a  fiduci-
   18  ary.
   19    d.  Such  term  includes  any  person  owning or operating an inactive
   20  hazardous waste  disposal  site,  including  an  industrial  development
   21  authority  created under the public authorities law, other than one that
   22  holds bare legal title to such site; has not participated with any party
   23  responsible under law for the remediation of contamination  in,  on,  or
   24  from  such  site  to  attempt  to  have  such a party avoid its remedial
   25  liability; has not exercised any contractual rights it may have or  had,
   26  if  any,  under  the  lease, guarantee, or any other financing agreement
   27  pursuant to which the  industrial  development  authority  would  assume
   28  control  over  the  actual  operation  of  the  site;  and has not taken
   29  possession or control of the site. Nothing in this paragraph affects the
   30  rights or immunities or other defenses that are available under law that
   31  are applicable to an industrial development authority;  or  creates  any
   32  liability  for  a  person or a private right of action against an indus-
   33  trial development authority or any other person.
   34    § 2. Subdivision 1 of section 27-1303 of the  environmental  conserva-
   35  tion  law,  as  added  by chapter 282 of the laws of 1979, is amended to
   36  read as follows:
   37    1.  [Each] a. For a period of one year after  the  effective  date  of
   38  this  chapter,  each  county shall, for the purpose of locating inactive
   39  hazardous waste disposal sites as  that  term  was  defined  on  January
   40  first,  nineteen  hundred ninety-nine, survey its jurisdiction to deter-
   41  mine the existence and location of suspected  inactive  hazardous  waste
   42  disposal  sites  and shall[, within four months of the effective date of
   43  this title,] annually thereafter  submit  a  report  to  the  department
   44  describing  the location of each such suspected site and the reasons for
   45  such suspicion.
   46    b. Commencing one year after the effective date of the chapter of  the
   47  laws  of two thousand which added this paragraph, each county shall, for
   48  the purpose of locating inactive hazardous waste disposal sites,  survey
   49  its  jurisdiction  to  determine the existence and location of suspected
   50  inactive hazardous waste disposal sites and  shall  annually  thereafter
   51  submit  a  report to the department describing the location of each such
   52  suspected site and the reasons for such suspicion.
   53    § 3. Paragraph b of subdivision 4 of section 27-1305 of  the  environ-
   54  mental  conservation  law, as amended by chapter 857 of the laws of 1982
   55  and the opening paragraph as amended by chapter 649 of the laws of 1988,
   56  is amended to read as follows:

       S. 6292                             9                            A. 9292

    1    b. The department shall, as part of the registry,  assess  and,  based
    2  upon  new  information  received, reassess by March thirty-first of each
    3  year, in cooperation with the department of health,  the  relative  need
    4  for  action  at  each  site  to remedy environmental and health problems
    5  resulting from the presence of hazardous wastes at such sites; provided,
    6  however,  that  if  at  the time of such assessment or reassessment, the
    7  department has not placed a site in classification 1 or 2, as  described
    8  in  subparagraphs  one  and  two of this paragraph, and such site is the
    9  subject of a voluntary agreement pursuant  to  title  fourteen  of  this
   10  article,  obligating the person subject to such agreement to, at a mini-
   11  mum, eliminate or mitigate all significant threats to the public  health
   12  and the environment posed by the hazardous waste pursuant to such agree-
   13  ment,  the  department shall defer its assessment or reassessment during
   14  the period such person is in compliance with the terms of such agreement
   15  and shall assess or reassess such site upon completion of remediation to
   16  the department's satisfaction. In making its assessments, the department
   17  shall place every site in one of the following classifications:
   18    (1) Causing or presenting an imminent danger of  causing  irreversible
   19  or  irreparable  damage  to  the public health or environment--immediate
   20  action required;
   21    (2) Significant threat to the  public  health  or  environment--action
   22  required;
   23    (3)  Does  not  present  a  significant threat to the public health or
   24  environment--action may be deferred;
   25    (4) Site properly closed--requires continued management;
   26    (5) Site properly closed, no evidence of present or potential  adverse
   27  impact--no further action required.
   28    §  4.  Paragraph b of subdivision 1 of section 27-1313 of the environ-
   29  mental conservation law is relettered paragraph c and a new paragraph  b
   30  is added to read as follows:
   31    b.  The department shall have the authority to require the development
   32  and  implementation  of  a  department-approved inactive hazardous waste
   33  disposal site remedial program; provided, however, that  the  department
   34  will  use  the  following  in determining and implementing such remedial
   35  program:
   36    (i) The objective of such remedial program shall be the protection  of
   37  public  health  and the environment, with the minimum objective being to
   38  eliminate or mitigate all significant threats to public health  and  the
   39  environment  presented  by hazardous waste through proper application of
   40  scientific and engineering principles and such remedial program must  be
   41  selected upon due consideration of the following factors:
   42    (A)  conformance to standards and criteria that are generally applica-
   43  ble, consistently applied, and officially promulgated, that  are  either
   44  directly  applicable,  or that are not directly applicable but are rele-
   45  vant and appropriate, unless good cause exists why conformity should  be
   46  dispensed  with,  and  with consideration being given to guidance deter-
   47  mined, after the exercise of engineering judgment, to be applicable;
   48    (B) overall protectiveness of public health and the environment;
   49    (C) short-term effectiveness;
   50    (D) long-term effectiveness;
   51    (E) reduction  of  toxicity,  mobility,  and  volume  with  treatment;
   52  addressing  a  hot  spot of hazardous waste that permanently and signif-
   53  icantly reduces the volume, toxicity, and/or mobility of hazardous waste
   54  is to be preferred over a method that does not do so. The  hierarchy  of
   55  remedial  technologies  shall  be  as set forth under section 27-0105 of
   56  this article;

       S. 6292                            10                            A. 9292

    1    (F) cost;
    2    (G) implementability;
    3    (H) community acceptance; and
    4    (I) land use: the current, intended, and reasonably anticipated future
    5  land uses for the property and its surroundings, if ascertainable.
    6    (ii)  Notwithstanding  anything  to the contrary in this paragraph, at
    7  sites listed pursuant to section 27-1305 of this article as class  1  or
    8  2,  there shall be a presumption for soil remediation to soil category 2
    9  for residential purposes pursuant to section 27-1316 of this title where
   10  such remediation is conducted  by  a  person  responsible  according  to
   11  applicable  principles  of  statutory  or common law liability at a site
   12  that is not in active use for industrial or commercial uses and is adja-
   13  cent to residential uses. This presumption may be overcome by a  written
   14  finding  by the commissioner after citizen participation consistent with
   15  this title.
   16    § 5. Paragraph a of subdivision 3 and subdivision 4 of section 27-1313
   17  of the environmental conservation law, paragraph a of subdivision  3  as
   18  amended by chapter 857 of the laws of 1982 and subdivision 4 as added by
   19  chapter 282 of the laws of 1979, are amended to read as follows:
   20    a.  Whenever  the commissioner finds that hazardous wastes at an inac-
   21  tive hazardous waste disposal site constitute a  significant  threat  to
   22  the  environment,  he  may:  (i) order the owner of such site and/or any
   23  person responsible for the disposal of hazardous  wastes  at  such  site
   24  [(i)]  to  develop  an  inactive  hazardous waste disposal site remedial
   25  program, subject to the approval of the department, at  such  site,  and
   26  [(ii)] to implement such program within reasonable time limits specified
   27  in  the order; or (ii) develop and implement a remedial program for such
   28  site after a reasonable, but unsuccessful, attempt to obtain the consent
   29  of such owner and/or such person to the issuance of an order to  develop
   30  and implement such remedial program for such site.
   31    Such  remedial  program developed and implemented pursuant to subpara-
   32  graph (i) or (ii) of this  paragraph  shall  provide  for  a  reasonable
   33  opportunity  for submission of written and oral comments regarding, at a
   34  minimum, any proposed remedial program;  and  in  accordance  with  such
   35  regulations  as it may promulgate, the department may, subject to appro-
   36  priation therefor, make grants of up to fifty thousand dollars per  site
   37  available to a municipality which is not responsible according to appli-
   38  cable  principles  of  statutory  or  common  law liability, a community
   39  group, and/or such a municipality and a community group  in  partnership
   40  with  each  other,  and which may be affected by a release or threatened
   41  release of hazardous waste disposed at such  site  in  order  to  obtain
   42  technical assistance in interpreting existing information with regard to
   43  the  nature and extent of the contamination at the site and the develop-
   44  ment and implementation of such remedial program. To qualify to  receive
   45  such  assistance, a community group must demonstrate that its membership
   46  represents the interests of the community affected by such  site  and  a
   47  municipality  must  demonstrate  financial  need. The proposed recipient
   48  must also contribute a percentage of the total grant, to  be  determined
   49  by  the department in accordance with such regulations as it may promul-
   50  gate, which may be satisfied through money or the cash value of  donated
   51  supplies  or services. Grants awarded under this section may not be used
   52  for the purpose of collecting field sampling data.   Provided,  however,
   53  that in the event the commissioner of health shall issue an order pursu-
   54  ant  to  subdivision three of section one thousand three hundred eighty-
   55  nine-b of the public health law,  such  order  of  the  commissioner  of
   56  health shall supersede any order issued hereunder.

       S. 6292                            11                            A. 9292

    1    4.  a. Any order issued pursuant to subdivision three of this section,
    2  other than one issued on consent of the person who  is  the  subject  of
    3  such  order, shall be issued only after notice and the opportunity for a
    4  hearing is provided to persons who may be the subject of such order. The
    5  commissioner  shall  determine which persons are responsible pursuant to
    6  said subdivision according to  applicable  principles  of  statutory  or
    7  common law liability. Such persons shall be entitled to raise any statu-
    8  tory  or  common law defense at any such hearing and such defenses shall
    9  have the same force and effect at such hearings as they would have in  a
   10  court  of  law. In the event a hearing is held, no order shall be issued
   11  by the commissioner under subdivision three  of  this  section  until  a
   12  final  decision  has  been  rendered. Any such order shall be reviewable
   13  pursuant to article seventy-eight of the civil practice  law  and  rules
   14  within  thirty  days  after  service of such order. The commissioner may
   15  request the participation of the attorney general in such hearings.
   16    b. There shall be no liability under this section for a person  other-
   17  wise  liable  who  can establish by a preponderance of the evidence that
   18  the significant threat to  the  environment  attributable  to  hazardous
   19  waste  disposed  at an inactive hazardous waste disposal site was caused
   20  solely by an act of God; an act of war; or an act or omission of a third
   21  party other than an employee or agent of such person, or than one  whose
   22  act  or  omission  occurs  in connection with a contractual relationship
   23  existing directly or indirectly, with such person (except where the sole
   24  contractual arrangement arises from a published  tariff  and  acceptance
   25  for carriage by a common carrier or rail), if such person establishes by
   26  a preponderance of the evidence that such person exercised due care with
   27  respect  to the hazardous waste concerned, taking into consideration the
   28  characteristics of such hazardous waste, in light of all relevant  facts
   29  and  circumstances,  and  took  precautions  against foreseeable acts or
   30  omissions of any such third party and the consequences that could  fore-
   31  seeably  result from such acts or omissions; or any combination of them.
   32  For purposes of this paragraph, the  term,  "contractual  relationship,"
   33  includes,  but is not limited to, land contracts, deeds or other instru-
   34  ments transferring title or possession,  unless  the  real  property  on
   35  which  the  site  concerned is located was acquired by such person after
   36  the disposal or placement of the hazardous waste  on,  in,  or  at  such
   37  site,  and  such  person  establishes  one  or more of the circumstances
   38  described in subparagraph (i), (ii) or (iii)  of  this  paragraph  by  a
   39  preponderance of the evidence:
   40    (i) At the time such person acquired the site such person did not know
   41  and  has no reason to know that any hazardous waste which is the subject
   42  of the significant threat determination was disposed of on,  in,  or  at
   43  the  site.  To  establish  that  such person has no reason to know, such
   44  person must have undertaken, at the time of acquisition, all appropriate
   45  inquiry into the previous ownership and uses of the property  consistent
   46  with  good  commercial  or  customary  practice in an effort to minimize
   47  liability. For purposes of  the  preceding  sentence,  the  commissioner
   48  shall  take  into account any specialized knowledge or experience on the
   49  part of such person, the relationship of the purchase price to the value
   50  of the property if uncontaminated, commonly known or  reasonably  ascer-
   51  tainable information about the property, the obviousness of the presence
   52  or  likely presence of contamination at the property, and the ability to
   53  detect such contamination by appropriate inspection; or
   54    (ii) Such person is a government entity which  acquired  the  site  by
   55  escheat, or though any other involuntary transfer or acquisition; or

       S. 6292                            12                            A. 9292

    1    (iii)  Such  person  acquired  the site by inheritance or bequest, and
    2  that such person exercised due care with respect to the hazardous  waste
    3  concerned, taking into consideration the characteristics of such hazard-
    4  ous  waste,  in  light  of all relevant facts and circumstances and took
    5  precautions  against  foreseeable  acts  or  omissions of any such third
    6  party and the consequences that could foreseeably result from such  acts
    7  or omissions.
    8    Nothing in this paragraph shall diminish the liability of any previous
    9  owner  or  operator of the site who would otherwise be liable under this
   10  section. Notwithstanding this paragraph, if such person obtained  actual
   11  knowledge  of  the release or threatened release of a hazardous waste at
   12  the site when such person owned the site and  then  subsequently  trans-
   13  ferred  ownership  of the site to another person without disclosing such
   14  knowledge, such person shall be treated as a person responsible for  the
   15  disposal  of hazardous waste at the site and no defense under this para-
   16  graph shall be available to such person. Nothing in this paragraph shall
   17  affect the liability under this section of a person who, by any  act  or
   18  omission,  caused or contributed to the release or threatened release of
   19  a hazardous waste which is the subject of such  proceeding  relating  to
   20  such site.
   21    §  6. Section 27-1313 of the environmental conservation law is amended
   22  by adding three new subdivisions 10, 11 and 12 to read as follows:
   23    10. a. If, after the commissioner makes the finding described in para-
   24  graph a of subdivision three of this section and after expending reason-
   25  able efforts, the department is unable to obtain a voluntary  commitment
   26  by  the  owner  of  an inactive hazardous waste disposal site and/or any
   27  person responsible for the disposal of hazardous wastes at such site (i)
   28  to develop an inactive hazardous waste disposal site  remedial  program,
   29  subject  to the approval of the department, at such site, and/or (ii) to
   30  implement such program within reasonable time limits and undertake  such
   31  development  and/or  implementation,  the  department may undertake such
   32  development or implementation, in which case, subject  to  paragraphs  b
   33  and  c of this subdivision, there is hereby created a right of the state
   34  to recover in any court of competent jurisdiction from such owner and/or
   35  responsible person an amount equal to all costs, both direct  and  indi-
   36  rect,  respecting  such  site  that the state shall have incurred plus a
   37  penalty in an amount no less than one and no more than three  times  all
   38  such  costs,  both direct and indirect, the state shall have incurred in
   39  carrying out same. The department shall not be entitled to such a penal-
   40  ty unless it proves by a preponderance  of  the  evidence  that  it  has
   41  expended reasonable efforts as set forth in this paragraph. For purposes
   42  of  this  paragraph, the department has expended "reasonable efforts" to
   43  obtain such a voluntary commitment  if  such  owner  and/or  responsible
   44  person  is  informed in writing of the department's offer to negotiate a
   45  voluntary commitment and such owner and/or responsible person  does  not
   46  respond to the department's offer; or responds by refusing to negotiate;
   47  or  starts to negotiate and thereafter discontinues same; or acts in bad
   48  faith in the negotiation process and continues not to make such  commit-
   49  ment  after  receiving  a final written notification from the department
   50  that apprizes such owner and/or responsible person that failure to enter
   51  into the voluntary commitment will result in the state's recovery of all
   52  costs, both direct and indirect, respecting such  site  that  the  state
   53  shall  have  incurred plus a penalty in an amount up to three times, but
   54  no less than one times, all costs, both direct and indirect,  the  state
   55  shall have incurred in carrying out same.

       S. 6292                            13                            A. 9292

    1    b.  Notwithstanding paragraph a of this subdivision, such owner and/or
    2  responsible person shall only be liable to the state for an amount equal
    3  to all costs, both direct and indirect, the state  shall  have  incurred
    4  respecting  such site if such owner and/or responsible person can estab-
    5  lish  by  a  preponderance of the evidence that for good cause shown, it
    6  failed and refused to enter into  such  voluntary  commitment  with  the
    7  department.
    8    c.  Two  or  more owners and/or responsible persons described in para-
    9  graph a of subdivision three of  this  section  may  claim  contribution
   10  among  themselves in an action brought in a court of competent jurisdic-
   11  tion, and the amount of contribution to which any of  them  is  entitled
   12  shall  be  equal  to the excess paid by that responsible person over and
   13  above such responsible person's equitable share of costs.  However,  the
   14  amount  of  contribution to which any of them is entitled shall be three
   15  times the excess paid by that responsible person  over  and  above  such
   16  responsible person's equitable share of costs associated with the carry-
   17  ing out of such person's obligations under the voluntary commitment with
   18  the department described in paragraph a of this subdivision if one-third
   19  of  such award shall be paid to the remedial program transfer fund under
   20  section ninety-seven-uuu of the state finance law and  the  court  finds
   21  that:
   22    (i) the contribution defendant is a responsible person for such site;
   23    (ii)  the  contribution  plaintiff  gave  thirty  days  notice  to the
   24  contribution defendant of the plaintiff's intention to seek contribution
   25  in the event that the contribution defendant declined to participate  in
   26  the implementation of the contribution plaintiff's voluntary commitment;
   27    (iii)  the  contribution  defendant  failed or refused to enter into a
   28  settlement agreement with the contribution plaintiff; and
   29    (iv) the contribution plaintiff entered into  a  voluntary  commitment
   30  with the department to remediate the site.
   31    d. A person misidentified by the department as an owner and/or respon-
   32  sible person but which entered into a voluntary commitment, other than a
   33  voluntary  commitment  pursuant  to title fourteen of this article, with
   34  the department may recover  from  the  remedial  program  transfer  fund
   35  established  by  section  ninety-seven-uuu  of the state finance law the
   36  costs it shall have incurred that are reasonable in light of the  action
   37  agreed to be undertaken.
   38    e. All monies collected by the state pursuant to this section shall be
   39  deposited into the remedial program transfer fund established by section
   40  ninety-seven-uuu of the state finance law.
   41    11.  a. Any person subject to an order issued pursuant to this section
   42  or any person that shall have entered into a  voluntary  agreement  with
   43  the  department under title fourteen of this article may seek in a court
   44  of competent jurisdiction contribution from any other person  who  is  a
   45  person  responsible  for  the disposal of hazardous waste at an inactive
   46  hazardous waste disposal site or at an  affected  site,  as  defined  by
   47  section  27-1401  of  this article, for costs incurred in implementing a
   48  department-approved inactive  hazardous  waste  disposal  site  remedial
   49  program or in implementing a voluntary agreement. Nothing in this subdi-
   50  vision  shall  be  construed to limit, affect, or impair any protections
   51  from or limitations on liability provided by the  department  or  other-
   52  wise.
   53    b.  If the costs of measures undertaken at an inactive hazardous waste
   54  disposal site or at an affected  site  for  the  purpose  of  addressing
   55  hazardous  waste  or petroleum are increased because of design or imple-
   56  mentation considerations or alterations made for the purpose of accommo-

       S. 6292                            14                            A. 9292

    1  dating, effecting or advancing the redevelopment or reuse of such  site,
    2  the  amount  of such increase shall not be recoverable under paragraph a
    3  of this subdivision. Examples of design or implementation considerations
    4  or  alterations  that  may  be  made  for  the purpose of accommodating,
    5  effecting or advancing the redevelopment or reuse of a site include, but
    6  are not limited to, such measures as altering the type, amount,  quality
    7  or  aesthetic character of materials used in construction from the type,
    8  amount, quality or aesthetic character of materials required  to  imple-
    9  ment a remedial program or voluntary agreement at such site.
   10    c.  Any  other provision of this subdivision notwithstanding, no costs
   11  will be deemed unrecoverable  under  paragraph  a  of  this  subdivision
   12  because  they  were expended to achieve a higher level of remediation at
   13  an inactive hazardous waste disposal site  or  affected  site  than  the
   14  level required by the department.
   15    d.  In  any action or proceeding brought pursuant to this subdivision,
   16  the defendant shall be entitled to raise any  statutory  or  common  law
   17  defense that he may have.
   18    e.  In resolving contribution claims brought pursuant to this subdivi-
   19  sion, the court may allocate costs among liable parties using such equi-
   20  table factors as the court determines are appropriate.
   21    f. No action for  contribution  pursuant  to  this  provision  may  be
   22  commenced more than six years after the later of:
   23    (i)  the date of judgment in any action under any law, state or feder-
   24  al, respecting the costs that are the subject of the claim for  contrib-
   25  ution; or
   26    (ii)  the date of the issuance of an order or agreement by the depart-
   27  ment respecting the costs that are the subject of the claim for contrib-
   28  ution or respecting activities the conduct of which caused the  expendi-
   29  ture of the costs that are the subject of the claim for contribution.
   30    g. The court shall enter a declaratory judgment on liability for costs
   31  that  will  be  binding  on  any subsequent action or actions to recover
   32  costs incurred in implementing a department-approved inactive  hazardous
   33  waste  disposal  site  remedial  program, or in implementing a voluntary
   34  agreement under title fourteen of this article.
   35    h. Nothing contained in this subdivision shall affect  any  rights  to
   36  recovery  of  costs  to  which  any party may be entitled by contract or
   37  otherwise under law.
   38    12. a. Definition. For purposes of this subdivision, the term "natural
   39  resources" means land, fish, wildlife, biota, air, water, ground  water,
   40  drinking  water supplies, and other such resources belonging to, managed
   41  by, controlled by, or pertaining to the state of New York.
   42    b. Liability. Any owner of an inactive hazardous waste disposal  site,
   43  and  any person responsible for the disposal of hazardous wastes at such
   44  site, who shall be liable according to applicable principles of statuto-
   45  ry or common law liability and subject to any statutory  or  common  law
   46  defense, shall be liable to the state of New York for damages for injury
   47  to,  destruction  of,  loss  of,  or  loss  of use of natural resources,
   48  including the reasonable costs of assessing  such  injury,  destruction,
   49  loss,  or  loss of use resulting from the disposal of hazardous waste at
   50  such inactive hazardous waste disposal site. Provided, that there  shall
   51  be  no such liability where the owner or other person responsible demon-
   52  strates that the injury to, destruction of, loss of, or loss of  use  of
   53  natural resources complained of were specifically identified as an irre-
   54  versible  and  irretrievable commitment of natural resources in an envi-
   55  ronmental impact statement, or other comparable environmental  analysis,
   56  and the decision to grant a permit or license authorizes such commitment

       S. 6292                            15                            A. 9292

    1  of  natural  resources,  and the site was otherwise operating within the
    2  terms of its permit or license.
    3    c.  Damages. The attorney general shall, at the request of the commis-
    4  sioner as trustee of such natural resources, commence a civil action  to
    5  recover  such  damages on behalf of the people of the state of New York.
    6  All damages recovered in any such action  shall  be  paid  over  to  the
    7  commissioner  for deposit to the credit of the remedial program transfer
    8  fund established pursuant  to  section  ninety-seven-uuu  of  the  state
    9  finance  law.    Any  assessment  of  damages  to  natural resources for
   10  purposes of this subdivision made by the commissioner in accordance with
   11  such regulations as may be promulgated under  section  27-1315  of  this
   12  title  shall  have  the  force and effect of a rebuttable presumption on
   13  behalf of the commissioner in any such action.
   14    § 7. The environmental conservation law is amended  by  adding  a  new
   15  section 27-1314 to read as follows:
   16  § 27-1314. Covenant not to sue.
   17    1.  After  the  successful implementation of an order on consent which
   18  provides for the development and implementation of an inactive hazardous
   19  waste disposal site remedial program, the person subject  to  the  order
   20  shall  submit  to  the department a written certification prepared by an
   21  individual licensed or otherwise authorized in accordance  with  article
   22  one  hundred  forty-five of the education law to practice the profession
   23  of engineering who shall have been in charge of  the  implementation  of
   24  such  remediation undertaken pursuant to such order substantiating that,
   25  at a minimum, such remedial activities satisfied the  remedial  require-
   26  ments for the site.
   27    2. Upon the department's receipt of such certification, the department
   28  shall  review the final engineering report and the data submitted pursu-
   29  ant to the order as well as any other relevant information regarding the
   30  site. The department shall provide the  person,  upon  its  satisfaction
   31  that  the  remedial requirements for the site have been achieved, with a
   32  covenant not to sue, binding upon the state, for any liability,  includ-
   33  ing any future liability or claim for the further remediation of hazard-
   34  ous waste  at or from the site that was the subject of such order except
   35  that a person responsible for the site's remediation as of the effective
   36  date of the consent order pursuant to applicable principles of statutory
   37  and  common  law  liability  shall  not  receive  a  release for natural
   38  resource damages. Additionally, the state nonetheless shall reserve  all
   39  of  its  rights  concerning,  and such covenant shall not extend to, any
   40  further investigation or remedial action the department deems necessary,
   41  as a result of:
   42    a. a failure to comply with the terms and conditions of the order;
   43    b. a fraudulent demonstration that the cleanup  levels  identified  in
   44  the order were reached;
   45    c.  a  release  or  threatened  release  at the site subsequent to the
   46  effective date of the order;
   47    d. a change in the site's use subsequent to the effective date of  the
   48  order  to a use requiring a lower level of residual contamination unless
   49  additional remedial activities are undertaken which shall meet the stan-
   50  dard for protection of public health and the environment that applies to
   51  remedial actions for such use under this title;
   52    e. information received, in whole or in part, after  the  department's
   53  execution of such order, which indicates that the remediation performed,
   54  or  to be performed, under such order will not be, or is not, protective
   55  of public health or the environment for such use of the site; or

       S. 6292                            16                            A. 9292

    1    f. the department's determination that the remedy implemented  is  not
    2  protective of public health or the environment.
    3    3. The reservation contained in paragraph d of subdivision two of this
    4  section shall not be reserved in the event that a person remediates soil
    5  contamination to soil category 1, as that term is described in paragraph
    6  a of subdivision three of section 27-1316 of this title.
    7    4. The reservation contained in paragraph f of subdivision two of this
    8  section  shall  not  be reserved for a person who is not responsible for
    9  the remediation of the site pursuant to applicable principles of  statu-
   10  tory  or  common  law  liability, or who is liable solely as a result of
   11  ownership or operation of the affected site subsequent to  the  disposal
   12  of hazardous waste or the discharge of petroleum, in the event that such
   13  person remediates soil contamination to soil category 1, as that term is
   14  described in paragraph a of subdivision three of section 27-1316 of this
   15  title.
   16    5.  The  covenant  not  to  sue  issued pursuant to this section shall
   17  extend to the person's successors  or  assigns  through  acquisition  of
   18  title  to  the  site  to  which the covenant applies and to a person who
   19  develops or otherwise occupies the site, provided that such persons  act
   20  in  good  faith  to adhere to the requirements of such order on consent.
   21  However, such covenant does not extend, and cannot be transferred, to  a
   22  person  who is responsible as of the date of the issuance of an order on
   23  consent for the remediation of hazardous waste at the site according  to
   24  applicable  principles  of statutory or common law liability unless that
   25  person was party to the order on which such covenant was based. A notice
   26  of the order containing such covenant shall be recorded and indexed as a
   27  declaration of covenant in the office of the recording officer  for  the
   28  county  or  counties where such site is located in the manner prescribed
   29  by article nine of the real property law within thirty days  of  signing
   30  the  order  if the person is an owner or within thirty days of acquiring
   31  title to the site if the person is a prospective purchaser.
   32    6. The provisions of this title shall not affect an action or a claim,
   33  including a claim for contribution, that  a  person  who  implements  or
   34  completes an order on consent executed by such person and the department
   35  providing  for the development and implementation of an inactive hazard-
   36  ous waste disposal site remedial program pursuant to this title  has  or
   37  may have against a third party.
   38    7. Nothing in this subdivision shall be construed to affect either the
   39  liability  of any person with respect to any costs, damages, or investi-
   40  gative or remedial activities that are not included in the order; or the
   41  department's authority to maintain an action or proceeding  against  any
   42  person who is not subject to the order.
   43    8. A person who has settled its liability to the department under this
   44  subdivision  shall  not  be liable for claims for contribution regarding
   45  matters addressed in the order. Such settlement does not  discharge  any
   46  of  the  persons  responsible under law to investigate and remediate the
   47  hazardous waste unless its terms so provide, but it reduces  the  poten-
   48  tial liability of the others by the amount of the settlement.
   49    9.  Nothing  in  this  subdivision  shall  be  construed to affect the
   50  authority of the department  to  reach  settlement  with  other  persons
   51  consistent with its authority under applicable law.
   52    § 8. Section 27-1315 of the environmental conservation law, as amended
   53  by chapter 857 of the laws of 1982, is amended to read as follows:
   54  § 27-1315. Rules and regulations.
   55    1. The commissioner shall have the power to promulgate rules and regu-
   56  lations  necessary  and  appropriate  to  carry out the purposes of this

       S. 6292                            17                            A. 9292

    1  title. Any such regulations shall include provisions which establish the
    2  procedures for a hearing pursuant to subdivision four of section 27-1313
    3  of this [article] title.  Any such provisions shall ensure a division of
    4  functions  between  the commissioner, the staff who present the case and
    5  any hearing officers appointed. In addition, any such regulations  shall
    6  set  forth  findings  to be based on a factual record which must be made
    7  before the commissioner determines that  a  significant  threat  to  the
    8  environment  exists.  Rules and regulations promulgated pursuant to this
    9  title shall be subject to the approval of a board which shall  be  known
   10  as  the  inactive  hazardous waste disposal site regulation review board
   11  which shall have the same members, rules and  procedures  as  the  state
   12  environmental board.
   13    2.  Such rules and regulations of the department as shall be in effect
   14  on the effective date of the chapter of the laws of two  thousand  which
   15  added this subdivision that shall have been promulgated to carry out the
   16  purposes  of  this title shall be deemed to be revised, as of the effec-
   17  tive date of the chapter of the laws of two thousand  which  added  this
   18  subdivision,  to  include  the  definition  of  "hazardous  waste" as it
   19  appears in section 27-1301 of this title.
   20    § 9. Section 27-1316 of the environmental conservation law is REPEALED
   21  and a new section 27-1316 is added to read as follows:
   22  § 27-1316. Soil cleanup levels.
   23    1. The commissioner shall establish a technical  advisory  panel.  The
   24  membership  of  the panel shall be appointed by the commissioner and the
   25  commissioner of health and shall include representation from the  public
   26  health  advocacy  community,  the  environmental advocacy community, the
   27  business community, municipalities, and others as deemed appropriate  by
   28  the  commissioner.  The commissioner and the commissioner of the depart-
   29  ment of health shall be co-chairs of such panel. None of  the  appointed
   30  members  shall be officers or employees of any state department or agen-
   31  cy. Each member shall have experience in risk assessment  methodologies,
   32  remediation technologies, or other appropriate scientific, technical, or
   33  other  relevant  expertise  in regard to the remediation of contaminated
   34  sites. All meetings of the technical advisory panel shall be open to the
   35  public. The recommendations of the technical  advisory  panel  shall  be
   36  subject to public comment.
   37    2.  The  panel  shall provide advice on the development of, and recom-
   38  mend, soil clean-up levels which provide for a  multi-category  approach
   39  for  the  remediation of soil contamination, as set forth in subdivision
   40  three of this section, at inactive hazardous waste disposal sites, sites
   41  subject to a voluntary agreement under title fourteen of  this  article,
   42  and  cleanup  and removal actions under article twelve of the navigation
   43  law.
   44    3. In the development of soil cleanup levels, the  technical  advisory
   45  panel  shall  consider  the  following as the basis for the soil cleanup
   46  levels: the cancer  and  non-cancer  human  health  effects;  background
   47  concentrations;  exposure to the same contaminant from other routes; the
   48  strength of the toxicological data base; sensitive populations,  includ-
   49  ing  children; protection of groundwater for its classified use, surface
   50  water,  air  (including  indoor  air);  and  protection  of   ecological
   51  resources,  including  fish  and  wildlife.  In addition, the cumulative
   52  effects of contaminants and the possibility that some  contaminants  may
   53  act  through similar toxicological mechanisms shall be considered. Where
   54  toxicological, exposure or other pertinent data are inadequate  or  non-
   55  existent  for  a  specific  chemical, the experiences under the existing
   56  state remedial programs shall be considered. The goals for the level  of

       S. 6292                            18                            A. 9292

    1  risk associated with soil cleanup levels for individual contaminants are
    2  an  excess cancer risk of one in one million for carcinogenic end points
    3  and a hazard index of one for non-cancer end points for each soil  cate-
    4  gory.
    5    a.  Soil  category 1: cleanup levels that will be protective of public
    6  health and the environment that would allow the site to be used for  any
    7  purpose  without  restriction  and  without  reliance  on  institutional
    8  controls or engineering controls.
    9    b. Soil category 2: cleanup levels that will be protective  of  public
   10  health  and the environment for the site's current, intended, or reason-
   11  ably anticipated residential, commercial, or  industrial  use  and  with
   12  consideration  of  use of institutional or engineering controls to reach
   13  such levels.
   14    c. Soil category 3: a process to determine cleanup levels that will be
   15  protective of public health and the environment using site specific data
   16  for the site's current, intended or reasonably anticipated  residential,
   17  commercial, or industrial use.
   18    4. The technical advisory panel shall submit its recommendations with-
   19  in  eighteen months from the date of the first meeting of such technical
   20  advisory panel.
   21    5. After the close of the public comment period on the recommendations
   22  of the technical advisory panel, the commissioner and  the  commissioner
   23  of health, where appropriate, shall promulgate regulations setting forth
   24  the  soil cleanup levels, taking into consideration such recommendations
   25  and any other information deemed relevant  by  the  department  and  the
   26  department of health.
   27    6.  The  department shall determine cleanup levels for contaminants in
   28  the soil using site specific data  until  the  commissioner  promulgates
   29  rules  and regulations pursuant to this section and thereafter shall use
   30  the soil cleanup levels set forth in such rules and regulations, as  may
   31  be amended.
   32    §  10.  Article 27 of the environmental conservation law is amended by
   33  adding a new title 14 to read as follows:
   34                                  TITLE 14
   35                          VOLUNTARY REMEDIATION ACT
   36  Section 27-1401. Definitions.
   37          27-1403. Request for participation.
   38          27-1405. Determination of eligibility.
   39          27-1407. Voluntary agreement requirements.
   40          27-1409. Citizen participation/public notification.
   41          27-1411. Covenant not to sue.
   42          27-1413. Remediation certificate.
   43          27-1415. Payment of state costs.
   44  § 27-1401. Definitions.
   45    1. "Affected person" means a person whose request  to  participate  in
   46  the  voluntary remediation program under this title has been accepted by
   47  the department for consideration.
   48    2. "Affected site" means an area or structure  where  hazardous  waste
   49  and/or  petroleum  has been deposited, disposed of, placed, or otherwise
   50  come to be located that is not a site on the  National  Priorities  List
   51  established  under  authority  of  42  U.S.C.A.  §9605,  nor  subject to
   52  enforcement action, nor subject to a permit issued  pursuant  to  titles
   53  seven or nine of this article.
   54    3. "Enforcement action" means:
   55    a.  action under this article, under article seventy-one of this chap-
   56  ter, under article twelve of the navigation law, or under  the  criminal

       S. 6292                            19                            A. 9292

    1  procedure  law,  the  purpose of which includes requiring the subject of
    2  such action to remove or remediate  hazardous  waste  or  petroleum.  An
    3  enforcement action as defined in this paragraph shall commence against a
    4  particular  person upon commencement of enforcement under article seven-
    5  ty-one of this chapter, or upon issuance of an accusatory instrument  as
    6  that term is defined in section 1.20 of the criminal procedure law; or
    7    b.  action  under  federal law the purpose of which includes requiring
    8  the subject of such action to remove or  remediate  hazardous  waste  or
    9  petroleum.  An  enforcement  action  as  defined in this paragraph shall
   10  commence against a particular person upon issuance of  any  notification
   11  that requires the removal or remediation of hazardous waste or petroleum
   12  that is issued pursuant to federal law.
   13    4.  "Hazardous  waste"  means  hazardous  waste  as defined in section
   14  27-1301 of this article.
   15    5. "Person" means an individual, trust,  firm,  joint  stock  company,
   16  corporation,  partnership, association, state, municipality, commission,
   17  political subdivision of a state,  public  benefit  corporation  or  any
   18  interstate body.
   19    6.  "Petroleum"  means  petroleum  as  defined  in section one hundred
   20  seventy-two of the navigation law, even if appearing on the list promul-
   21  gated pursuant to section 37-0103 of this chapter.
   22    7. "Preliminary  environmental  assessment"  means  a  written  report
   23  submitted  as  part of a request to participate in the voluntary remedi-
   24  ation program within the department under this title which shall contain
   25  the information described in subdivision two of section 27-1403 of  this
   26  title.
   27    8.  "Proposed  voluntary  agreement"  means  an  agreement executed in
   28  accordance with this title by an affected person but not by the  depart-
   29  ment concerning the remediation of an affected site.
   30    9. "Remediation" or "remedial action" means actions taken to address a
   31  release  or  threatened release of hazardous waste into the environment,
   32  and may include the investigation of such release or threatened  release
   33  in  order  to determine how such release or threatened release should be
   34  addressed.
   35    10. "State costs" means all those costs, obligations, commitments,  or
   36  undertakings  associated  with the administration or oversight responsi-
   37  bilities of the department, the department of health, or any other state
   38  agency attributable to carrying out the investigation and/or remediation
   39  of an affected site under a voluntary agreement, as  described  in  this
   40  title.  Such  expenses  shall include administrative expenses (wages and
   41  salaries), fringe benefits, overhead, supplies and materials, equipment,
   42  travel and utilities.
   43    11. "Voluntary agreement" means an agreement  executed  in  accordance
   44  with  this title by an affected person and the department concerning the
   45  investigation of  the  nature  and  extent  of  actual,  threatened,  or
   46  suspected  hazardous  waste  and/or  petroleum  present  at  or  from an
   47  affected site; an agreement concerning the remediation  of  an  affected
   48  site;  or an agreement concerning both the investigation and remediation
   49  of an affected site.
   50  § 27-1403. Request for participation.
   51    1. A person who desires to participate in  the  voluntary  remediation
   52  program  under  this  title  concerning a particular affected site shall
   53  submit a request to the department.
   54    2. Such request shall be on a form  provided  by  the  department  and
   55  shall  contain  general  information  concerning  such  person  and such
   56  person's relation to the affected site, a description  of  the  affected

       S. 6292                            20                            A. 9292

    1  site,  and  a  copy of a preliminary environmental assessment concerning
    2  such affected site that shall include, but not be limited to:
    3    a.  a  review  of  any  relevant prior environmental studies, property
    4  assessments, or geological studies of such affected site;
    5    b. a legal description of such affected site;
    6    c. the physical characteristics of such affected site;
    7    d. the compliance history of any operations at such affected  site  to
    8  the extent the history is known by such person;
    9    e.  a  review of any existing aerial photographs of such affected site
   10  that may indicate its prior uses;
   11    f. if possible, interviews with any employee who may have knowledge of
   12  environmental conditions at such affected site;
   13    g. an inspection of such affected site  sufficient  to  evaluate  site
   14  conditions and remedial needs;
   15    h.  an  identification  of the past, current, intended, and reasonably
   16  anticipated future uses of such affected site; and
   17    i. any other relevant information concerning the potential  for  human
   18  and environmental exposures to contamination at such affected site.
   19    3. The department shall determine whether such affected site should be
   20  included  in  the registry of inactive hazardous waste disposal sites as
   21  required by section 27-1305 of this article. If  the  department  deter-
   22  mines  that such affected site is eligible for inclusion in the registry
   23  as a classification 1 or 2 site, and if the affected person  commits  to
   24  enter  into  a voluntary agreement pursuant to this title which requires
   25  the elimination or mitigation  of  all  significant  threats  to  public
   26  health  and the environment posed by the hazardous waste, the department
   27  shall defer including the  affected  site  in  the  registry  and  shall
   28  continue  to  defer  such  site for so long as the affected person is in
   29  compliance with the terms of a voluntary agreement.
   30  § 27-1405. Determination of eligibility.
   31    1. The department shall use its best  efforts  to  notify  the  person
   32  requesting  participation  in  the  voluntary remediation program within
   33  sixty days after receiving such request pursuant to section  27-1403  of
   34  this title that such request is either accepted or rejected.
   35    2. The department shall reject such request if:
   36    a. the request is submitted by the owner and/or any person responsible
   37  for  the  disposal of hazardous waste according to applicable principles
   38  of statutory or common law liability at an affected site which is listed
   39  in the registry of inactive hazardous waste disposal sites under section
   40  27-1305 of this article and  given  a  classification  as  described  in
   41  subparagraph  one  or  two  of  paragraph  b of subdivision four of such
   42  section;
   43    b. the request does not contain the information required  pursuant  to
   44  subdivision two of section 27-1403 of this title in sufficient detail to
   45  assess the conditions of the affected site;
   46    c.  the  department  determines that there is an enforcement action as
   47  defined under this title pending against the person  requesting  partic-
   48  ipation in the voluntary remediation program; or
   49    d.  the  department, based on the preliminary environmental assessment
   50  and/or other information the department possesses, determines  that  the
   51  request  is  for  a site which does not meet the definition of "affected
   52  site" pursuant to section 27-1401 of this title.
   53    3. If such request is rejected pursuant to paragraph b of  subdivision
   54  two  of  this section, the department shall provide to the person making
   55  such request, in writing, a list of the additional information  required
   56  for the department to determine eligibility under this title.

       S. 6292                            21                            A. 9292

    1  § 27-1407. Voluntary agreement requirements.
    2    1.  a.  The  voluntary agreement shall include, but not be limited to,
    3  the following provisions:
    4    (i) one  requiring  such  affected  person  to  pay  for  state  costs
    5  provided,  however,  that  with  respect  to  an affected site which the
    6  department has determined constitutes a  significant  threat  to  public
    7  health  or  the  environment,  the  department  may  include a provision
    8  requiring the affected person to provide a technical  assistance  grant,
    9  as described in subdivision three of section 27-1313 of this article and
   10  under  the conditions described therein, to an eligible party in accord-
   11  ance with procedures established under such program, with  the  cost  of
   12  such a grant serving as an offset against such state costs;
   13    (ii) one resolving disputes arising from the evaluation, analysis, and
   14  oversight  of  the  implementation of the workplan as described in para-
   15  graph b of this subdivision;
   16    (iii) one requiring an indemnification provision which holds the state
   17  harmless from any claim, suit,  action,  and  cost  of  every  name  and
   18  description  arising  out  of  or  resulting  from  the  fulfillment  or
   19  attempted fulfillment of the agreement except for those  claims,  suits,
   20  actions,  and  costs  arising  from the state's negligence or willful or
   21  intentional misconduct;
   22    (iv) one authorizing the department to terminate a voluntary agreement
   23  at any time during the implementation of such agreement if the  affected
   24  person  implementing  such  agreement fails to comply substantially with
   25  such agreement's terms and conditions;
   26    (v) one exempting such affected person from the requirement to  obtain
   27  any  permit  issuable  by the department for any activity satisfying the
   28  following criteria:
   29    (1) the activity is conducted on the affected  site  or  on  different
   30  premises  that  are  under  common control or are contiguous to or phys-
   31  ically connected with the affected site and the activity manages  exclu-
   32  sively hazardous waste or petroleum from such affected site,
   33    (2)  the  activity  satisfies  all  substantive technical requirements
   34  applicable to like activity conducted pursuant to a permit as determined
   35  by the department, and
   36    (3) the activity is a component of  the  remediation  conducted  under
   37  such voluntary remediation agreement;
   38    (vi)  one stating that the department shall not consider such affected
   39  person an operator of such affected site based solely upon execution  or
   40  implementation  of such agreement for purposes of remediation liability;
   41  and
   42    (vii) the inclusion of other conditions considered  necessary  by  the
   43  department or the affected person concerning the effective and efficient
   44  implementation  of this title, and, where the affected person is respon-
   45  sible for the disposal of hazardous waste or the discharge of  petroleum
   46  according to applicable principles of statutory or common law liability,
   47  unless  such  liability arises solely from ownership or operation of the
   48  affected site subsequent to the  disposal  of  hazardous  waste  or  the
   49  discharge of petroleum, the department shall include provisions relating
   50  to  recovery  of  state costs incurred before the effective date of such
   51  voluntary agreement.
   52    b. The proposed voluntary agreement shall also contain a workplan that
   53  shall include, but not be limited to, the following requirements:
   54    (i) a work plan for the  investigation  of  the  affected  site  shall
   55  provide  for  the  investigation  and characterization of the nature and
   56  extent of the contamination within the boundaries of the  real  property

       S. 6292                            22                            A. 9292

    1  where  the  contamination  was  released into the environment, provided,
    2  however, that an affected person that is responsible for the disposal of
    3  hazardous waste or the discharge of petroleum under  applicable  princi-
    4  ples  of statutory or common law liability, unless such liability arises
    5  solely from ownership or operation of the affected  site  subsequent  to
    6  the  disposal  of  hazardous  waste or the discharge of petroleum, shall
    7  also be required to investigate and characterize the nature  and  extent
    8  of  contamination  emanating from such real property. An affected person
    9  not responsible for the disposal of hazardous waste or the discharge  of
   10  petroleum under applicable principles of statutory or common law liabil-
   11  ity, or a person that is liable solely as a result of ownership or oper-
   12  ation of the affected site subsequent to the disposal of hazardous waste
   13  or  the  discharge  of  petroleum,  must  perform an exposure assessment
   14  consisting of an evaluation of the pathways by which a receptor could be
   15  exposed to such contamination, in order to determine the risk to  public
   16  health  and  the  environment from any contamination emanating from such
   17  real property;
   18    (ii) a work plan for  the  remediation  of  the  affected  site  shall
   19  provide for the development and implementation of a remedial program for
   20  such contamination within the boundaries of such affected site, provided
   21  however, that an affected person that is responsible for the disposal of
   22  hazardous  waste  or the discharge of petroleum under applicable princi-
   23  ples of statutory or common law liability,  except  an  affected  person
   24  whose  liability  arises  solely  from  ownership  or  operation  of the
   25  affected site subsequent to the  disposal  of  hazardous  waste  or  the
   26  discharge  of petroleum, shall also be required to provide in such work-
   27  plan for the development and implementation of a  remedial  program  for
   28  contamination related to the affected site but located outside the boun-
   29  daries  of the affected site. The objective of any such remedial program
   30  shall be the protection of public health and the environment,  with  the
   31  minimum objective being to eliminate or mitigate all significant threats
   32  to public health and the environment presented by the hazardous waste or
   33  petroleum through proper application of scientific and engineering prin-
   34  ciples and such remedial program must be selected upon due consideration
   35  of the evaluation factors set forth in paragraph b of subdivision one of
   36  section  27-1313 of this article. The work plan must contain an analysis
   37  that such proposed remedy was assessed using  such  evaluation  factors.
   38  The  workplan  must  provide  that the soil cleanup levels be consistent
   39  with the soil cleanup levels set forth  in  rules  and  regulations,  as
   40  amended, promulgated pursuant to section 27-1315 and subdivision five of
   41  section 27-1316 of this article; until such regulations are promulgated,
   42  the  department  shall determine cleanup levels for contaminants in soil
   43  using site specific data. The department may approve a  work  plan  that
   44  includes  institutional  controls  and/or engineering controls as compo-
   45  nents of a remedial program but only if the work plan requires the owner
   46  of such real property to annually submit to  the  department  a  written
   47  statement  certifying  under  penalty  of perjury that the institutional
   48  controls and engineering controls employed  to  remediate  such  contam-
   49  ination  are  unchanged from the previous certification and that nothing
   50  has occurred that would constitute a violation of any such controls, and
   51  gives access to such real property reasonable under the circumstances to
   52  evaluate continued maintenance of such controls.  The  department  shall
   53  establish  and  maintain  a  database  with relevant information on such
   54  controls and shall make such information available for public inspection
   55  at the office of the county clerk or register for each county and at the

       S. 6292                            23                            A. 9292

    1  office of the town clerk for each town in Suffolk and  Nassau  counties;
    2  and
    3    (iii)  at  any  time during the evaluation of a proposed workplan, the
    4  department may request that an  affected  person  submit  additional  or
    5  corrected information to the department. An affected person shall either
    6  comply  with the request or withdraw such proposed workplan from consid-
    7  eration.
    8    2. For a  voluntary  agreement  requiring  remediation,  the  affected
    9  person shall cause a final remediation report to be prepared and submit-
   10  ted  to  the  department  that  identifies  the  remediation  activities
   11  completed pursuant to the voluntary agreement.  Such  final  remediation
   12  report, at a minimum, shall demonstrate, as appropriate, that:
   13    a.  there  is  no contamination by hazardous waste or petroleum of the
   14  soil, sediment, surface water, or  groundwater  on  or  underlying  such
   15  affected  site  in concentrations exceeding the requirements for remedi-
   16  ation set forth in the department-approved work plan for remediation  of
   17  such affected site;
   18    b.  if  remediation  was  conducted  in accordance with such voluntary
   19  agreement and such agreement provides  for  a  timetable  by  which  the
   20  requirements  for  remediation set forth in the department-approved work
   21  plan for remediation of such affected site will be  achieved,  the  data
   22  submitted to the department demonstrate that such applicable remediation
   23  requirements  will  be achieved in accordance with the timeframes estab-
   24  lished in such agreement;
   25    c. if the remediation relies  on  restrictions  on  the  use  of  such
   26  affected  site  to achieve the requirements for remediation set forth in
   27  the department-approved work plan for remediation of such affected site,
   28  such affected person has caused such use restrictions to be recorded and
   29  indexed as a declaration of restrictions in the office of the  recording
   30  officer  for  the county or counties where such affected site is located
   31  in the manner prescribed by article nine of the real  property  law  and
   32  documented   such   recordation   and   indexing.  Such  declaration  of
   33  restriction shall contain the name of the record owner of such  affected
   34  site  along  with  tax  map parcel number or the section, block, and lot
   35  number of such affected site; or
   36    d. if the remediation was conducted in accordance with such  voluntary
   37  agreement  and  such  voluntary  agreement requires engineering controls
   38  that contain or control the contamination at or from such affected site,
   39  the department has approved a plan submitted by such affected person for
   40  the proper operation and maintenance of those engineering controls.
   41    3. If at an affected site being remediated by an affected  person  who
   42  is  not responsible for the disposal of hazardous waste or the discharge
   43  of petroleum according to applicable principles of statutory  or  common
   44  law liability, or who is liable solely as a result of ownership or oper-
   45  ation of the affected site subsequent to the disposal of hazardous waste
   46  or  the discharge of petroleum, the department determines that hazardous
   47  wastes or petroleum at the affected site have migrated from the site and
   48  pose a significant threat to public health or  the  environment  due  to
   49  such  migration,  the  department  shall  require the person responsible
   50  according to applicable principles of statutory or common law  liability
   51  to  conduct  the  off-site remediation, provided however, the department
   52  shall not require an affected person whose liability arises solely  from
   53  ownership  or  operation at the affected site subsequent to the disposal
   54  of hazardous waste or the discharge of petroleum to  conduct  such  off-
   55  site  remediation.  If  such  responsible person fails to undertake such
   56  off-site remediation, the state is authorized to  use  moneys  from  the

       S. 6292                            24                            A. 9292

    1  remedial  program  transfer fund established pursuant to section ninety-
    2  seven-uuu of the state finance law to remediate such contamination.  The
    3  state's costs incurred to remediate such off-site contamination shall be
    4  recoverable from the responsible party or parties.
    5    4.  The  commissioner  shall  use  best  efforts to approve, modify or
    6  reject a proposed voluntary agreement for remediation within sixty  days
    7  after  the  end of the comment period or the close of the public meeting
    8  provided by section 27-1409 of this title, whichever is later, and after
    9  evaluating any comments received.
   10    a. If the commissioner rejects such proposed voluntary agreement,  the
   11  commissioner  shall  notify  the affected person and specify the reasons
   12  for rejecting same.
   13    b. If the commissioner approves or modifies  such  proposed  voluntary
   14  agreement,  the  commissioner shall notify the affected person, in writ-
   15  ing, that the proposed voluntary agreement has been  approved  or  modi-
   16  fied.  If  the commissioner requires a modification, the affected person
   17  may agree to modify such proposed voluntary  agreement  or  withdraw  it
   18  from consideration.
   19    5. Upon finalization of the proposed voluntary agreement's provisions,
   20  as may be modified, the department and the affected person shall execute
   21  a  voluntary  agreement that shall contain the matters set forth in this
   22  title. The affected person shall carry out the terms  of  the  voluntary
   23  agreement.
   24    6.  Nothing  herein shall prohibit or limit the department from termi-
   25  nating a voluntary agreement at any time during  its  implementation  if
   26  the  affected person subject to such voluntary agreement fails to comply
   27  substantially with such agreement's terms and conditions.
   28    7. Nothing herein shall require the department to enter into a  volun-
   29  tary agreement with an affected party.
   30  § 27-1409. Citizen participation/public notification.
   31    1.  The  department shall place a notification of receipt of a request
   32  to participate in the voluntary remediation  program  pursuant  to  this
   33  title in the environmental notice bulletin.
   34    2.  Upon  the  department's  finalization of a voluntary agreement for
   35  investigation,  the   department   must   notify   individuals,   groups
   36  and/organizations that have expressed interest in or are affected by the
   37  voluntary  agreement of such agreement, and must publish a notice in the
   38  environmental notice bulletin. Further, upon the satisfactory completion
   39  of the investigation  performed  under  such  voluntary  agreement,  the
   40  department  must  notify  individuals,  groups and/or organizations that
   41  have expressed interest in or are affected by  the  voluntary  agreement
   42  and publish a notice in the environmental notice bulletin regarding such
   43  satisfactory completion.
   44    3.  Before the department finalizes a proposed voluntary agreement for
   45  remediation, the department must notify individuals, groups  and  organ-
   46  izations that have expressed interest in or are affected by the proposed
   47  voluntary  agreement of the proposed voluntary agreement for remediation
   48  and publish a notice requesting comments concerning the proposed  volun-
   49  tary  agreement  in the environmental notice bulletin. Such notice shall
   50  provide for a forty-five day public comment period following publication
   51  of the notice required under this section. The department shall  hold  a
   52  public  meeting  on  the proposed voluntary remediation agreement if the
   53  commissioner finds that the  affected  site  constitutes  a  significant
   54  threat to the public health or to the environment.
   55  § 27-1411. Covenant not to sue.

       S. 6292                            25                            A. 9292

    1    1.  After the affected person has successfully implemented a voluntary
    2  agreement which provides for the remediation of the affected site,  such
    3  affected  person  shall submit to the department a written certification
    4  prepared by an individual licensed or otherwise authorized in accordance
    5  with article one hundred forty-five of the education law to practice the
    6  profession of engineering who shall have been in charge of the implemen-
    7  tation  of  such  remediation  undertaken  pursuant  to  such  agreement
    8  substantiating that, at a minimum, such  remedial  activities  satisfied
    9  the  requirements set forth in paragraph b of subdivision two of section
   10  27-1407 of this title.
   11    2. Upon the department's receipt of such certification, the department
   12  shall review the final engineering report and the data submitted  pursu-
   13  ant to the voluntary agreement as well as any other relevant information
   14  regarding  the  affected site. The department shall provide the affected
   15  person, upon its satisfaction that the  remedial  requirements  for  the
   16  affected  site  have  been achieved, with a covenant not to sue, binding
   17  upon the state, for any liability, including  any  future  liability  or
   18  claim  for the further remediation of hazardous waste or petroleum at or
   19  from the affected site that was the subject of such voluntary  agreement
   20  except  that  a  person  responsible for the affected site's remediation
   21  pursuant to applicable principles of statutory and common law liability,
   22  unless such liability arises solely from ownership or operation  of  the
   23  affected  site  subsequent  to  the  disposal  of hazardous waste or the
   24  discharge of petroleum, shall not receive a release for natural resource
   25  damages. Additionally, the state nonetheless shall reserve  all  of  its
   26  rights  concerning,  and  such covenant shall not extend to, any further
   27  investigation or remedial action the department deems  necessary,  as  a
   28  result of:
   29    a.  a failure to comply with the terms and conditions of the voluntary
   30  agreement;
   31    b. a fraudulent demonstration that the cleanup  levels  identified  in
   32  the voluntary agreement were reached;
   33    c.  a release or threatened release at the affected site subsequent to
   34  the effective date of the voluntary agreement;
   35    d. a change in the affected site's use  subsequent  to  the  effective
   36  date  of  the  voluntary  agreement  to a use requiring a lower level of
   37  residual contamination unless additional remedial activities are  under-
   38  taken  which shall meet the standard for protection of public health and
   39  the environment that applies to remedial actions for such use under this
   40  article;
   41    e. information received, in whole or in part, after  the  department's
   42  execution  of such voluntary agreement, which indicates that the remedi-
   43  ation performed, or to be performed, under such voluntary agreement will
   44  not be, or is not, protective of public health or  the  environment  for
   45  such use of the affected site; or
   46    f.  the  department  determines  that  the  remedy  implemented is not
   47  protective of public health or the environment.
   48    3. The reservation contained in paragraph d of subdivision two of this
   49  section shall not be reserved in the event an affected person remediates
   50  soil contamination to soil category 1, as  that  term  is  described  in
   51  paragraph a of subdivision three of section 27-1316 of this article.
   52    4. The reservation contained in paragraph f of subdivision two of this
   53  section  shall not be reserved for an affected person who is not respon-
   54  sible for the remediation of the site pursuant to applicable  principles
   55  of  statutory  or  common  law  liability,  or who is liable solely as a
   56  result of ownership or operation of the affected site subsequent to  the

       S. 6292                            26                            A. 9292

    1  disposal  of hazardous waste or the discharge of petroleum, in the event
    2  that such person remediates soil contamination to soil  category  1,  as
    3  that  term  is  described in paragraph a of subdivision three of section
    4  27-1316 of this article.
    5    5.  The  covenant  not  to  sue  issued pursuant to this section shall
    6  extend to the person's successors  or  assigns  through  acquisition  of
    7  title to the affected site to which the covenant applies and to a person
    8  who develops or otherwise occupies the affected site, provided that such
    9  persons  act  in good faith to adhere to the requirements of such volun-
   10  tary agreement and workplan. However, such covenant does not extend, and
   11  cannot be transferred, to a person who is responsible for  the  disposal
   12  of hazardous waste or the discharge of petroleum according to applicable
   13  principles of statutory or common law liability as of the effective date
   14  of the voluntary agreement unless that person was party to the voluntary
   15  agreement  on  which  such covenant was based. A notice of the agreement
   16  containing such covenant shall be recorded and indexed as a  declaration
   17  of  covenant  in  the  office of the recording officer for the county or
   18  counties where such affected site is located in the manner prescribed by
   19  article nine of the real property law within thirty days of signing  the
   20  agreement  if  the person is an owner or within thirty days of acquiring
   21  title to the affected site if the person is a prospective purchaser.
   22    6. The provisions of this title shall not affect an action or a claim,
   23  including a claim for contribution, that  a  person  who  implements  or
   24  completes  an  agreement  executed  by  such  person  and the department
   25  providing for the remediation of the  affected  site  pursuant  to  this
   26  title has or may have against a third party.
   27    7.  Nothing  in  this  section shall be construed to affect either the
   28  liability of any person with respect to any costs, damages, or  investi-
   29  gative or remedial activities that are not included in the agreement; or
   30  the  department's  authority to maintain an action or proceeding against
   31  any person who is not subject to the agreement.
   32    8. A person who has settled its liability to the department under this
   33  section shall not  be  liable  for  claims  for  contribution  regarding
   34  matters  addressed in the agreement.  Such settlement does not discharge
   35  any of the persons responsible under law to  investigate  and  remediate
   36  the  hazardous  waste  unless  its  terms so provide, but it reduces the
   37  potential liability of the others by the amount of the settlement.
   38    9. Nothing in this section shall be construed to affect the  authority
   39  of the department to reach settlement with other persons consistent with
   40  its authority under applicable law.
   41    10.  An  affected person who implements a voluntary agreement executed
   42  by such affected person and the department pursuant to this title  shall
   43  not  be  held  liable  for  claims  for  contribution concerning matters
   44  addressed in such voluntary agreement.
   45  § 27-1413. Remediation certificate.
   46    1.  Upon the department's determination pursuant to subdivision two of
   47  section 27-1411 of this title that the  remedial  requirements  for  the
   48  affected  site  have been achieved, the affected person may apply to the
   49  commissioner for a remediation certificate that certifies that the reme-
   50  dial requirements for the affected site have been achieved  pursuant  to
   51  this  title  which would warrant the allowance of a credit under section
   52  fourteen of the tax law.
   53    2. Such application shall be on a form  provided  by  the  department,
   54  shall  be certified under penalty of perjury, and shall, include but not
   55  be limited to, a statement from a certified public accountant  detailing
   56  the  site preparation costs; as that term is defined in section thirteen

       S. 6292                            27                            A. 9292

    1  of the tax law, required to be paid or incurred in order to qualify  for
    2  a remediation certificate.
    3    3.  The  commissioner  shall  issue  a remediation certificate if such
    4  affected person is either (i) not a person responsible for  the  remedi-
    5  ation  of  hazardous waste or the discharge of petroleum at the affected
    6  site according to applicable  principles  of  statutory  or  common  law
    7  liability, or (ii) a person responsible for the remediation of hazardous
    8  waste  or  the  discharge of petroleum at the affected site according to
    9  applicable principles of statutory  or  common  law  liability  if  such
   10  person's  liability  arises  solely  from  ownership or operation of the
   11  affected site subsequent to the  disposal  of  hazardous  waste  or  the
   12  discharge of petroleum.
   13    4. Such remediation certificate shall state:
   14    a.  that  the affected person is eligible pursuant to paragraph (i) or
   15  (ii) of subdivision three of this section for  a  credit  under  section
   16  fourteen of the tax law;
   17    b.  that the affected person has satisfactorily completed the remedial
   18  program required by the voluntary agreement. Further, in the event  that
   19  cleanup  of  the  soil  to  soil category 2 or soil category 3, as those
   20  terms are described in paragraph  a  of  subdivision  three  of  section
   21  27-1316  of  this  article  would be protective of public health and the
   22  environment in accordance with  subparagraph  (ii)  of  paragraph  b  of
   23  subdivision  one  of  section  27-1407  of  this title, and the affected
   24  person remediated the soil to soil category 1 as that term is  described
   25  in  paragraph a of subdivision three of section 27-1316 of this article,
   26  the remediation certificate shall indicate that the affected  person  is
   27  eligible  to  receive an additional two percent credit pursuant to para-
   28  graph four of subdivision (a) of section fourteen of the tax law; and
   29    c. the  department's  determination  regarding  the  amount  that  the
   30  affected  person has expended for site preparation costs as that term is
   31  defined in section fourteen of the tax  law,  required  to  be  paid  or
   32  incurred in order to qualify for a remediation certificate.
   33    5.  If  the affected person has leased the property and such lessee is
   34  (i) not a person responsible for the remediation of hazardous  waste  or
   35  the  discharge of petroleum at the affected site according to applicable
   36  principles of statutory or  common  law  liability,  or  (ii)  a  person
   37  responsible  for  the remediation of hazardous waste or the discharge of
   38  petroleum at the affected site according  to  applicable  principles  of
   39  statutory  or  common  law  liability  if such person's liability arises
   40  solely from ownership or operation of the affected  site  subsequent  to
   41  the  disposal  of  hazardous  wastes  or the discharge of petroleum, the
   42  remediation certificate shall also include a statement  indicating  that
   43  the lessee is a person as set forth in this subdivision.
   44    6.  A  remediation certificate issued pursuant to subdivision three of
   45  this section may be modified or revoked by the commissioner upon a find-
   46  ing that:
   47    a. the affected person has failed to comply with the terms and  condi-
   48  tions of the voluntary agreement;
   49    b.  the  affected  person  fraudulently  demonstrated that the cleanup
   50  levels identified in the voluntary agreement were reached; or
   51    c. there is good cause for such modification or revocation.
   52    7. Upon the commissioner's determination pursuant to subdivision three
   53  or six of this section, the  commissioner  shall  provide  the  affected
   54  person  with  notice  of  such  determination and notice of the right to
   55  appeal such determination. The  commissioner's  determination  shall  be
   56  final unless a hearing is requested by certified mail to the commission-

       S. 6292                            28                            A. 9292

    1  er  within  thirty  days  after  receiving notice of such determination.
    2  After such hearing the commissioner shall give notice of final  determi-
    3  nation  to  such  affected person. The commissioner may promulgate regu-
    4  lations  to  effectuate  the purposes of this section.  The commissioner
    5  shall promptly notify the commissioner of taxation and finance when such
    6  a determination pursuant to such subdivision six  of  this  section  has
    7  become final and is no longer subject to judicial appeal.
    8  § 27-1415. Payment of state costs.
    9    1.  Pursuant  to  timetables contained in the voluntary agreement, the
   10  affected person shall pay all state costs incurred in overseeing  imple-
   11  mentation  of  such  agreement.  In addition, if such affected person is
   12  responsible for the disposal of hazardous  waste  or  the  discharge  of
   13  petroleum  according to applicable principles of statutory or common law
   14  liability, unless such liability arises solely from ownership or  opera-
   15  tion  of the affected site subsequent to the disposal of hazardous waste
   16  or the discharge of petroleum, such affected person shall pay all  costs
   17  incurred  by the state up to the effective date of such voluntary agree-
   18  ment.
   19    2. Payment of such state costs identified in subdivision one  of  this
   20  section  shall be made to the remedial program transfer fund established
   21  pursuant to section ninety-seven-uuu of the state finance law.
   22    3. In the event that either the  affected  person  or  the  department
   23  withdraw  from a voluntary agreement before such agreement's completion,
   24  or upon completion of the activities undertaken pursuant to  the  volun-
   25  tary  agreement,  all  unexpended moneys which the affected person shall
   26  have paid into such account shall be reimbursed to the  affected  person
   27  after  a  final  accounting  of  all  claims upon such affected person's
   28  payments.
   29    § 11. Subdivision 8 of section 52-0101 of the environmental  conserva-
   30  tion  law,  as  added  by chapter 512 of the laws of 1986, is amended to
   31  read as follows:
   32    8. "Hazardous waste" shall have the definition  set  forth  in  [title
   33  nine of article twenty-seven] section 27-1301 of this chapter.
   34    §  12. Subdivision 1 of section 52-0103 of the environmental conserva-
   35  tion law, as amended by chapter 9 of the laws of  1994,  is  amended  to
   36  read as follows:
   37    1.  For  remediation  of  hazardous waste sites, as set forth in title
   38  three of this article and for the closure of municipal landfills, as set
   39  forth in title five of article fifty-four of this chapter,  one  billion
   40  two  hundred  million  dollars of which[: (i)] up to one hundred million
   41  dollars shall be made available for state assistance payments toward the
   42  cost of the closure of municipal landfills, as set forth in  title  five
   43  of article fifty-four of this chapter; [and (ii) up to one hundred thou-
   44  sand  dollars  shall  be  made  available  for  the  study  of hazardous
   45  substance waste disposal sites, as defined in section  27-1316  of  this
   46  chapter;] and
   47    §  13. Subdivision 1 of section 71-2727 of the environmental conserva-
   48  tion law, as amended by chapter 671 of the laws of 1986, is  amended  to
   49  read as follows:
   50    1. The commissioner, after investigation, notice and an opportunity to
   51  be  heard, may issue, modify and revoke orders prohibiting violations of
   52  any of the provisions of article 27 or 71 or of any rule  or  regulation
   53  promulgated  pursuant  thereto and requiring the taking of such remedial
   54  measures as may be necessary or appropriate.   Nothing herein  contained
   55  shall  be  deemed  to  preclude the disposition of any matter within the
   56  department's jurisdiction under article twenty-seven of this chapter  by

       S. 6292                            29                            A. 9292

    1  stipulation,   agreed  settlement,  consent  order,  default,  or  other
    2  informal method, upon such terms and  subject  to  such  conditions  and
    3  limitations as the commissioner may deem just.
    4    §  14.  The section   heading of section 213 of the civil practice law
    5  and rules, as amended by chapter 43 of the laws of 1975, is  amended  to
    6  read as follows:
    7    Actions to be commenced within six years: where not otherwise provided
    8  for;  on  contract;  on sealed instrument; on bond or note, and mortgage
    9  upon real property; by state based on misappropriation of public proper-
   10  ty; based on mistake; by corporation against director, officer or stock-
   11  holder; based on fraud; by state based on claims  pursuant  to  subdivi-
   12  sions   ten   and   eleven  of  section  27-1313  of  the  environmental
   13  conservation law; by state based on injury to,  or  destruction  of,  or
   14  loss of, or loss of use of natural resources.
   15    §  15.  Section  213 of the civil practice law and rules is amended by
   16  adding three new subdivisions 9, 10 and 11 to read as follows:
   17    9. an action by the  state  under  authority  of  subdivision  ten  of
   18  section  27-1313  of the environmental conservation law; the time within
   19  which the action must be commenced shall be computed from the initiation
   20  of physical on-site construction of the remedial program.
   21    10. an action for contribution under authority of  subdivision  eleven
   22  of section 27-1313 of the environmental conservation law; the time with-
   23  in  which such action must be commenced shall be computed from the later
   24  of:
   25    a. the date of judgment in any action under any law, state or federal,
   26  respecting the costs that are the subject of the claim for contribution;
   27  or
   28    b. the date of the issuance of an order or agreement by the department
   29  of environmental conservation respecting the costs that are the  subject
   30  of  the  claim  for contribution or respecting activities the conduct of
   31  which caused  the expenditure of the costs that are the subject  of  the
   32  claim for contribution.
   33    11. an action under authority of subdivision twelve of section 27-1313
   34  of  the environmental conservation law; the time within which the action
   35  must  be  commenced  shall  be  computed  from  the  completion  of  the
   36  construction  of  the  inactive  hazardous  waste disposal site remedial
   37  program.
   38    § 16. The general municipal law is amended by  adding  a  new  section
   39  970-r to read as follows:
   40    § 970-r. State assistance: brownfield redevelopment area planning.  1.
   41  Definitions.    a.  "Brownfield  redevelopment area" is an area where: a
   42  number of abandoned, idled or under-utilized properties are clustered in
   43  a geographic location; contamination by hazardous waste  as  defined  in
   44  section  27-1301  of  the environmental conservation law or petroleum as
   45  defined in section one hundred seventy-two  of  the  navigation  law  is
   46  suspected    of  being  widespread;  and the remediation of any one site
   47  would not address all suspected  sources  of  contamination  and  enable
   48  beneficial environmental and economic use.
   49    b.  A  "brownfield  redevelopment area plan" is a plan undertaken by a
   50  municipality or not-for-profit corporation  to  develop  a  strategy  to
   51  return  a brownfield redevelopment area to productive economic use while
   52  protecting human health and the environment.
   53    2. The secretary of state is authorized to provide  technical  assist-
   54  ance to municipalities and not-for-profit corporations acting in cooper-
   55  ation  with  municipalities,  to  enhance their capabilities to plan the
   56  redevelopment of brownfield redevelopment areas.

       S. 6292                            30                            A. 9292

    1    3. Within the limits of  appropriations  therefor,  the  secretary  of
    2  state  is  authorized  to  provide,  on  a  competitive basis, financial
    3  assistance to municipalities and not-for-profit corporations  acting  in
    4  cooperation  with municipalities, to advance plans for the redevelopment
    5  of brownfield redevelopment areas, as follows:
    6    a.  in  the preparation of a pre-planning study to develop information
    7  necessary for designating a brownfield redevelopment area.  Pre-planning
    8  activities include, but are not limited to, basic information about  the
    9  boundaries  of  the  area,  the number and size of brownfield sites, the
   10  current and anticipated uses of the properties and  groundwater  in  the
   11  area,  known  data about the environmental conditions of the properties,
   12  ownership of the sites in the area and other information deemed relevant
   13  by the secretary of state.  Such study, when completed, shall be submit-
   14  ted to the secretary of  state.    The  municipality  or  not-for-profit
   15  corporation with the approval of the municipality may then file  a peti-
   16  tion  requesting  designation  of the area as a brownfield redevelopment
   17  area for the approval of the secretary of state;
   18    b. in the preparation of a brownfield redevelopment area plan.   Plan-
   19  ning activities eligible to receive funding include, but are not limited
   20  to,  a  strategy which defines the end uses of the brownfield redevelop-
   21  ment area once the properties  have  been  remediated  and  revitalized,
   22  including  any  infrastructure needs, and identifies actions required to
   23  reach such proposed end-uses, and other information deemed  relevant  by
   24  the  secretary  of state.   Such plan must be formulated in consultation
   25  with community based organizations and affected landowners. The  munici-
   26  pality  or  not-for-profit  corporation with the approval of the munici-
   27  pality shall submit such plan for  the  approval  of  the  secretary  of
   28  state.
   29    c.  in  the  preparation  of site assessments of properties owned by a
   30  municipality or a party not responsible for the remediation of hazardous
   31  waste or petroleum according to applicable principles  of  statutory  or
   32  common  law  liability,  or  a responsible party according to applicable
   33  principles of statutory or common law liability if such person's liabil-
   34  ity arises solely from ownership or operation of the site subsequent  to
   35  the  disposal  of  hazardous  waste or the discharge of petroleum in the
   36  brownfield redevelopment area. Assessment activities  include,  but  are
   37  not limited to, testing of properties to determine the nature and extent
   38  of  the  contamination  (including  soil and groundwater), environmental
   39  assessments, the development  of  a  proposed  remediation  strategy  to
   40  address  any  identified  contamination  and any other activities deemed
   41  appropriate by the secretary in consultation with  the  commissioner  of
   42  environmental   conservation.  Any  environmental  assessment  shall  be
   43  subject to the review and approval of the commissioner of  environmental
   44  conservation.  State  assistance  payments shall not exceed seventy-five
   45  percent of the cost of such plans. The secretary of state, in  consulta-
   46  tion with the commissioner of environmental conservation, may enter into
   47  a  contract with a municipality or not-for-profit corporation, including
   48  such terms and conditions as the secretary of state and commissioner  of
   49  environmental  conservation  may  deem appropriate, to provide the state
   50  assistance.
   51    4. When determining the eligibility of a municipality or  not-for-pro-
   52  fit  corporation for such assistance, the secretary of state, in consul-
   53  tation with the commissioner of  environmental  conservation  and  other
   54  appropriate  agencies,  shall consider, among other matters, the follow-
   55  ing: benefit to human health, benefit to the environment,  the  economic
   56  benefit  to  the  state  (including new employment opportunities and new

       S. 6292                            31                            A. 9292

    1  public recreational resources),  and  the  strength  of  local  support.
    2  Funding preferences shall be given to proposals for areas: with a demon-
    3  strated  need  for restoration; that would yield economic benefit to the
    4  state  and  create  new  jobs  or  a new public resource; that receive a
    5  strong level of local support; and where a majority  of  the  properties
    6  are owned by a municipality or party not responsible for the remediation
    7  of  hazardous  waste  or petroleum according to applicable principles of
    8  statutory or common law liability or a responsible  party  according  to
    9  applicable  principles  of  statutory  or  common  law liability if such
   10  person's liability arises solely from ownership or operation of the site
   11  subsequent to the disposal of hazardous waste or the discharge of petro-
   12  leum.
   13    5. The secretary of state shall provide from available monies  techni-
   14  cal support to municipalities and not-for-profit corporations to prepare
   15  their brownfield development areas program. Such support includes but is
   16  not limited to personal and non-personal services.
   17    §  17.  The navigation law is amended by adding a new section 172-a to
   18  read as follows:
   19    § 172-a. Liability exclusions.  1. Notwithstanding  subdivision  thir-
   20  teen  of section one hundred seventy-two of this article the term "owner
   21  or operator" does not include a person that is a  lender  that,  without
   22  participating  in the management of property, holds indicia of ownership
   23  primarily to protect the security interest of the person in that proper-
   24  ty; nor does it include a person that is a lender that did  not  partic-
   25  ipate  in  management  of property prior to foreclosure, notwithstanding
   26  that the person forecloses  on  such  property  and  after  foreclosure,
   27  sells, re-leases (in the case of a lease finance transaction), or liqui-
   28  dates  the property, maintains business activities, winds up operations,
   29  undertakes in a non-negligent manner remedial actions under  the  direc-
   30  tion  of  the  department,  with  respect to such property, or takes any
   31  other measure to preserve, protect, or prepare such  property  prior  to
   32  sale  or disposition, if the person seeks to sell, re-lease (in the case
   33  of a lease finance transaction), or otherwise divest the person  of  the
   34  property    at the earliest practicable commercially reasonable time, on
   35  commercially reasonable terms, taking into account market conditions and
   36  legal and regulatory requirements; provided, however, that  such  lender
   37  shall not make a claim against the fund arising out of a discharge asso-
   38  ciated with such property.  For purposes of this subdivision:
   39    (a)  the term "participate in management" means actually participating
   40  in the management or operational affairs of a  property;  and  does  not
   41  include  merely  having  the  capacity  to influence, or the unexercised
   42  right to control, property operations;
   43    (b) a person that is a lender and  that  holds  indicia  of  ownership
   44  primarily  to protect a security interest in a property shall be consid-
   45  ered to participate in management only if, while the borrower  is  still
   46  in  possession  of the property encumbered by the security interest, the
   47  person exercises decisionmaking control over the  environmental  compli-
   48  ance  related  to  the  property,  such  that  the person has undertaken
   49  responsibility for the hazardous waste handling  or  disposal  practices
   50  related  to  the property; or exercises control at a level comparable to
   51  that of a manager of the property, such that the person has  assumed  or
   52  manifested  responsibility  for  the  overall management of the property
   53  encompassing day-to-day decisionmaking  with  respect  to  environmental
   54  compliance;  or  over  all or substantially all of the operational func-
   55  tions (as distinguished from financial or administrative  functions)  of
   56  the property other than the function of environmental compliance;

       S. 6292                            32                            A. 9292

    1    (c)  the  term "participate in management" does not include performing
    2  an act or failing to act prior to the time at which a security  interest
    3  is created in a property; and
    4    (d)  the  term  "participate in management" does not include holding a
    5  security interest  or  abandoning  or  releasing  a  security  interest;
    6  including  in  the  terms of an extension of credit, or in a contract or
    7  security agreement relating to the extension, a covenant,  warranty,  or
    8  other  term or condition that relates to environmental compliance; moni-
    9  toring or enforcing the terms and conditions of the extension of  credit
   10  or  security interest; monitoring or undertaking one or more inspections
   11  of the property; requiring a response action or other  lawful  means  of
   12  addressing  the  release  or  threatened release of a hazardous waste in
   13  connection with the property prior to, during, or on the  expiration  of
   14  the term of the extension of credit; providing financial or other advice
   15  or  counseling  in  an  effort  to mitigate, prevent, or cure default or
   16  diminution in the value of the property;  restructuring,  renegotiating,
   17  or otherwise agreeing to alter the terms and conditions of the extension
   18  of credit or security interest, exercising forbearance; exercising other
   19  remedies  that may be available under applicable law for the breach of a
   20  term or condition of the extension of credit or security  agreement;  or
   21  conducting in a non-negligent manner a remedial action directly or under
   22  the  direction  of  the department of environmental conservation, if the
   23  actions do not rise to the level of participating in management  (within
   24  the meaning of this subdivision);
   25    (e)  the  term  "extension  of credit" includes a lease finance trans-
   26  action in which the lessor does not initially select the leased property
   27  and does not during the lease term control the daily operations or main-
   28  tenance of the property; or that conforms with regulations issued by the
   29  appropriate federal banking agency (as defined in 12 USC  section  1813)
   30  or  the  superintendent  of  banks  or  with  regulations  issued by the
   31  National Credit Union Administrative Board, as appropriate;
   32    (f) the term "financial or administrative function" includes  a  func-
   33  tion  such  as  that  of  a  credit  manager,  accounts payable officer,
   34  accounts receivable officer, personnel manager,  comptroller,  or  chief
   35  financial officer, or a similar function;
   36    (g)  the  term  "foreclosure"  and  "foreclose"  means,  respectively,
   37  acquiring and to acquire, a property through purchase at  sale  under  a
   38  judgment  or  decree,  power of sale, or nonjudicial foreclosure sale; a
   39  deed in lieu of foreclosure, or similar conveyance from  a  trustee;  or
   40  repossession,  if  the  property was security for an extension of credit
   41  previously contracted; conveyance pursuant to  an  extension  of  credit
   42  previously  contracted,  including the termination of a lease agreement;
   43  or any other formal or informal manner by which the person acquires, for
   44  subsequent disposition, title to or possession of a property in order to
   45  protect the security interest of the person;
   46    (h) the term "lender" means  an  insured  depository  institution  (as
   47  defined  in 12 USC section 1813); an insured credit union (as defined in
   48  12 USC section 1752); a bank or association  chartered  under  the  Farm
   49  Credit  Act of 1971 (12 U.S.C. 2001 et seq.); a leasing or trust company
   50  that is an affiliate of an insured depository  institution;  any  person
   51  (including a successor or assignee of any such person) that makes a bona
   52  fide  extension  of  credit  to or takes or acquires a security interest
   53  from a nonaffiliated person; the Federal National Mortgage  Association,
   54  the  Federal  Home  Loan  Mortgage Corporation, the Federal Agricultural
   55  Mortgage Corporation, or any other entity that in  a  bona  fide  manner
   56  buys  or  sells  loans  or  interests in loans; a person that insures or

       S. 6292                            33                            A. 9292

    1  guarantees against a default in the repayment of an extension of credit,
    2  or acts as a surety with respect to an extension of credit, to a  nonaf-
    3  filiated  person;  and  a  person that provides title insurance and that
    4  acquires  a  property  as  a  result  of assignment or conveyance in the
    5  course of underwriting claims and claims settlement;
    6    (i) the term "operational function" includes a function such  as  that
    7  of  a  facility  or  plant  manager, operations manager, chief operating
    8  officer, or chief executive officer; and
    9    (j) the term "security interest" includes a right  under  a  mortgage,
   10  deed  of  trust,  assignment, judgment lien, pledge, security agreement,
   11  factoring agreement, or lease and any other right accruing to  a  person
   12  to  secure  the  repayment  of  money, the performance of a duty, or any
   13  other obligation by a nonaffiliated person.
   14    2. Notwithstanding subdivision thirteen of section one hundred  seven-
   15  ty-two  of  this  article the term, "owner or operator" does not include
   16  the state  or  a  public  corporation  which  acquired,  and  thereafter
   17  retained  without  participating  in  the  management  of such property,
   18  ownership or control involuntarily or voluntarily by virtue of its func-
   19  tion as sovereign; provided, however, that such public corporation shall
   20  not make  a claim against the fund arising out of a discharge associated
   21  with such property. Neither the state nor any public  corporation  shall
   22  incur  under  this chapter any liability as to matters within the juris-
   23  diction of the department as a result of actions taken in response to an
   24  emergency created by the discharge or threatened discharge of  petroleum
   25  by  another  person,  provided  that such actions by the state or public
   26  corporation did not constitute reckless, willful, wanton or  intentional
   27  misconduct.  As used in this subdivision:
   28    (a)  "public corporation" means a public corporation as defined in the
   29  general construction law;
   30    (b) "involuntary acquisition of ownership or control" includes, but is
   31  not limited to, the following:
   32    (i) acquisitions by the state or a public corporation, or  its  agent,
   33  acting as a conservator or receiver pursuant to a clear and direct stat-
   34  utory mandate or regulatory authority;
   35    (ii) acquisitions of assets through foreclosure and its equivalents as
   36  defined  in  paragraph (g) of subdivision one of this section, or other-
   37  wise, by the state or a public corporation in the course of  administer-
   38  ing a loan, loan guarantee or loan insurance program;
   39    (iii)  acquisitions  by  the state or a public corporation pursuant to
   40  seizure or forfeiture authority;
   41    (iv) acquisitions by the state or a public corporation as  the  result
   42  of tax delinquency purposes; provided, that such ownership or control is
   43  not retained primarily for investment purposes.
   44    (c) "management participation" means that the state or a public corpo-
   45  ration  is  actually participating in the management or operation of the
   46  property but does not include the mere capacity to influence, ability to
   47  influence or unexercised right to control the operation of the property.
   48  Nothing contained in this subdivision affects the applicability of  this
   49  section  in  favor  of  a holder of a security interest according to the
   50  terms thereof.
   51    3. Notwithstanding subdivision thirteen of section one hundred  seven-
   52  ty-two  of this article the term, "owner or operator" includes a fiduci-
   53  ary; provided, however, that such liability on the part of  a  fiduciary
   54  shall  not  exceed  the  assets  held  in the fiduciary capacity if such
   55  person is not liable independently of such person's ownership as a fidu-
   56  ciary or actions taken in a fiduciary capacity; provided, however,  that

       S. 6292                            34                            A. 9292

    1  such  fiduciary shall not make a claim against the fund arising out of a
    2  discharge associated with such property.
    3    (a) For purposes of this subdivision, (i) the term "fiduciary" means a
    4  person  acting  for the benefit of another party as a bona fide trustee;
    5  executor; administrator; custodian; guardian of estates or  guardian  ad
    6  litem;  receiver;  conservator;  committee  of  estates of incapacitated
    7  persons; personal representative; trustee (including a  successor  to  a
    8  trustee)  under an indenture agreement, trust agreement, lease, or simi-
    9  lar financing agreement, for debt securities, certificates  of  interest
   10  or  certificates  of participation in debt securities, or other forms of
   11  indebtedness as to which the trustee is not, in the capacity of trustee,
   12  the lender; or representative in any other capacity that the department,
   13  after providing public notice, determines to be similar to  the  various
   14  capacities  previously described in this paragraph; and does not include
   15  either a person that is acting as a fiduciary with respect to a trust or
   16  other fiduciary estate that was organized for the primary purpose of, or
   17  is engaged in, actively carrying on a trade or business for  profit,  or
   18  to  facilitate one or more estate plans, or because of the incapacity of
   19  a natural person or a person that acquires ownership  or  control  of  a
   20  property  with the objective purpose of avoiding liability of the person
   21  or any other person;
   22    (ii) the term "fiduciary capacity" means the capacity of a  person  in
   23  holding title to a property, or otherwise having control of or an inter-
   24  est  in  a property, pursuant to the exercise of the responsibilities of
   25  the person as a fiduciary.
   26    (b) Nothing in this subdivision affects the rights  or  immunities  or
   27  other  defenses  that  are  available under law that are applicable to a
   28  person subject to this subdivision or creates any liability for a person
   29  or a private right of action against a fiduciary or any other person.
   30    (c) Nothing in this subdivision applies to a person  if  that  person,
   31  acts  in  a  capacity  other  than that of a fiduciary or in a fiduciary
   32  capacity and in that capacity, directly or indirectly  benefits  from  a
   33  trust  or fiduciary relationship; or is a beneficiary and fiduciary with
   34  respect to the same fiduciary estate and as a fiduciary, receives  bene-
   35  fits  that  exceed  customary or reasonable compensation, and incidental
   36  benefits, permitted under other applicable law.
   37    (d) This subdivision does not preclude  a  claim  under  this  chapter
   38  against the assets of the estate or trust administered by the fiduciary;
   39  or  a  nonemployee agent or independent contractor retained by a fiduci-
   40  ary.
   41    4. Notwithstanding subdivision thirteen of section one hundred  seven-
   42  ty-two  of this article the term, "owner or operator" includes an indus-
   43  trial development authority created under the  public  authorities  law,
   44  other  than  one  that  holds bare legal title to such property; has not
   45  participated with any party responsible under law for the remediation of
   46  contamination in, on, or from such property to attempt to  have  such  a
   47  party  avoid  its  remedial liability; has not exercised any contractual
   48  rights it may have or had, if any, under the lease,  guarantee,  or  any
   49  other  financing  agreement pursuant to which the industrial development
   50  authority would assume control over the actual operation of the  proper-
   51  ty;  has  not  taken possession or control of the property; and does not
   52  make a claim against the fund arising out of a discharge associated with
   53  such property. Nothing in this subdivision, affects the rights or  immu-
   54  nities  or other defenses that are available under law that are applica-
   55  ble to a person subject to this subdivision; or  creates  any  liability

       S. 6292                            35                            A. 9292

    1  for a person or a private right of action against an industrial develop-
    2  ment authority or any other person.
    3    5.  Notwithstanding  the  foregoing,  a  person  receiving a liability
    4  exemption or liability limitation under subdivision one, two,  three  or
    5  four  of  this section shall be deemed to have waived any claim pursuant
    6  to section one hundred eighty-one of this article that such  person  may
    7  have  against  the  New  York environmental protection and spill compen-
    8  sation fund.
    9    § 18. Paragraph (a) of subdivision 2 of section 176 of the  navigation
   10  law,  as  amended by chapter 584 of the laws of 1992, is amended to read
   11  as follows:
   12    (a) Upon the occurrence of a discharge of  petroleum,  the  department
   13  shall  respond  promptly and proceed to cleanup and remove the discharge
   14  in accordance with environmental priorities or may, at  its  discretion,
   15  direct  the discharger to promptly cleanup and remove the discharge. The
   16  department shall be responsible for cleanup and removal or as  the  case
   17  may be, for retaining agents and contractors who shall operate under the
   18  direction of that department for such purposes. Implementation of clean-
   19  up  and  removal  procedures  after each discharge shall be conducted in
   20  accordance with environmental priorities and procedures  established  by
   21  the department.  Such procedures shall provide:
   22    (i)  the objective of a cleanup and removal that the department deter-
   23  mines does not constitute an immediate response  cleanup  shall  be  the
   24  protection of public health and the environment, with the minimum objec-
   25  tive  being  to  eliminate or mitigate all significant threats to public
   26  health and the environment presented by such  discharge  through  proper
   27  application of scientific and engineering principles; and that the reme-
   28  dy must be selected upon due consideration of the following factors:
   29    (A)  conformance to standards and criteria that are generally applica-
   30  ble, consistently applied, and officially promulgated, that  are  either
   31  directly  applicable,  or that are not directly applicable but are rele-
   32  vant and appropriate, unless good cause exists why conformity should  be
   33  dispensed  with,  and  with consideration being given to guidance deter-
   34  mined, after the exercise of engineering judgement, to be applicable;
   35    (B) overall protectiveness of public health and the environment;
   36    (C) short-term effectiveness;
   37    (D) long-term effectiveness;
   38    (E) reduction  of  toxicity,  mobility,  and  volume  with  treatment;
   39  addressing  a  hot  spot of petroleum that permanently and significantly
   40  reduces the volume, toxicity, and/or mobility of the petroleum is to  be
   41  preferred  over  a method that does not do so. The hierarchy of remedial
   42  technologies shall be as set forth under section 27-0105 of the environ-
   43  mental conservation law;
   44    (F) cost;
   45    (G) implementability;
   46    (H) community acceptance; and
   47    (I) land use: the current, intended, and reasonably anticipated future
   48  land uses for the property and its surroundings, if ascertainable.
   49    (ii) the objective of a cleanup and removal that the department deter-
   50  mines does constitute an immediate response cleanup shall be to effectu-
   51  ate a prompt cleanup and removal of contamination to ensure  restoration
   52  of  the environment to pre-spill conditions.  For purposes of this para-
   53  graph, an immediate response cleanup  shall  be  one  that  comprises  a
   54  discrete  set  of  activities  which can be undertaken without extensive
   55  investigation and evaluation, to prevent, mitigate, or  remedy  environ-

       S. 6292                            36                            A. 9292

    1  mental  damage  or the consequences of environmental damage attributable
    2  to the discharge.
    3    (iii)  the remediation of soil as part of any cleanup and removal of a
    4  discharge under this article shall be performed in accordance  with  the
    5  soil cleanup levels promulgated pursuant to section 27-1316 of the envi-
    6  ronmental conservation law.
    7    (iv) for all cleanup and removal actions other than immediate response
    8  cleanups, the department shall place a notification in the environmental
    9  notice  bulletin  and shall notify individuals, groups, and/or organiza-
   10  tions that have expressed interest in or are affected  by  such  cleanup
   11  and  removal  actions upon: the initiation of an investigation, upon the
   12  successful completion of such investigation, and upon the submission  of
   13  a  proposed  remedy.  The  department  shall  accept public comments for
   14  forty-five days prior to approving such remedy.
   15    § 19. Paragraph (b) of subdivision 2 of section 176 of the  navigation
   16  law is relettered paragraph (c) and a new paragraph (b) is added to read
   17  as follows:
   18    (b)  The department shall determine cleanup levels for contaminants in
   19  the soil using site specific data  until  the  commissioner  promulgates
   20  rules  and  regulations pursuant to section 27-1315 and subdivision five
   21  of section 27-1316 of the environmental conservation law and  thereafter
   22  shall  use  the  soil  cleanup  levels set forth in such rules and regu-
   23  lations, as may be amended.
   24    § 20. Subdivision 1 of section 181 of the navigation law,  as  amended
   25  by chapter 712 of the laws of 1989, is amended to read as follows:
   26    1.  [Any] (a) Except as provided in paragraph (e) of this subdivision,
   27  any person who has discharged petroleum shall be strictly liable,  with-
   28  out  regard  to  fault, for all cleanup and removal costs and all direct
   29  and indirect damages, no matter by whom sustained, as  defined  in  this
   30  section.  In addition to cleanup and removal costs and damages, any such
   31  person who is notified of such release and who did not  undertake  relo-
   32  cation  of  persons  residing in the area of the discharge in accordance
   33  with paragraph (c) of subdivision seven of section one hundred  seventy-
   34  six  of this article, shall be liable to the fund for an amount equal to
   35  two times the actual and necessary expense incurred by the fund for such
   36  relocation pursuant to section one hundred seventy-seven-a of this arti-
   37  cle.  Additionally, the department shall be entitled to a penalty in  an
   38  amount  no  less  than  one and no more than three times all cleanup and
   39  removal costs if it proves by a preponderance of the  evidence  that  it
   40  has  expended  reasonable  efforts as set forth in this subdivision. For
   41  purposes of this subdivision, the  department  has  expended  reasonable
   42  efforts  to  obtain a voluntary commitment if such person is informed in
   43  writing of the department's offer to negotiate  a  voluntary  commitment
   44  and  such responsible person does not respond to the department's offer;
   45  or responds by refusing to negotiate; or starts to negotiate and  there-
   46  after  discontinues  same; or acts in bad faith in the negotiation proc-
   47  ess, and continues not to make such commitment after receiving  a  final
   48  written  notification from the department that apprizes such responsible
   49  person that failure to enter into the voluntary commitment  will  result
   50  in the state's recovery of all costs, both direct and indirect, respect-
   51  ing  such  discharge;  then  the  state shall be entitled to recover all
   52  costs, both direct and indirect,  respecting  such  discharge  that  the
   53  state shall have incurred plus, to the extent that the state can show by
   54  a  preponderance  of  the  evidence that it has fulfilled the procedural
   55  steps in this paragraph, a penalty in an amount up to three  times,  but

       S. 6292                            37                            A. 9292

    1  no  less  than one times, all costs, both direct and indirect, the state
    2  shall have incurred in carrying out same.
    3    (b)  Notwithstanding  paragraph  (a)  of this subdivision, such person
    4  shall only be liable to the state for an amount equal to all costs, both
    5  direct and indirect, the  state  shall  have  incurred  respecting  such
    6  discharge  if  such  person  can  establish  by  a  preponderance of the
    7  evidence that for good cause shown, it failed and refused to enter  into
    8  such voluntary commitment with the department.
    9    (c)  Two  or  more owners and/or persons described in paragraph (a) of
   10  subdivision three of this section may  claim  contribution  among  them-
   11  selves  in  an  action brought in a court of competent jurisdiction, and
   12  the amount of contribution to which any of them  is  entitled  shall  be
   13  equal  to  the  excess  paid by that person over and above such person's
   14  equitable share of costs. However, the amount of contribution  to  which
   15  any  of  them  is  entitled shall be three times the excess paid by that
   16  person over and above such person's equitable share of costs  associated
   17  with  the  carrying out of such person's obligations under the voluntary
   18  commitment with the department described in paragraph (a) of this subdi-
   19  vision if one-third of such award shall be paid to the remedial  program
   20  transfer  fund  established  pursuant to section ninety-seven-uuu of the
   21  state finance law and the court finds that:
   22    (i) the contribution defendant is a person described in paragraph  (a)
   23  of this subdivision for such site;
   24    (ii)  the  contribution  plaintiff  gave  thirty  days  notice  to the
   25  contribution defendant of the plaintiff's intention to seek contribution
   26  in the event that the contribution defendant declined to participate  in
   27  the implementation of the contribution plaintiff's voluntary commitment;
   28    (iii)  the  contribution  defendant  failed or refused to enter into a
   29  settlement agreement with the contribution plaintiff; and
   30    (iv) the contribution plaintiff entered into  a  voluntary  commitment
   31  with the department to remediate the site.
   32    (d)  A person misidentified by the department as a person described in
   33  paragraph (a) of this subdivision but which  entered  into  a  voluntary
   34  commitment  with  the  department may recover from the New York environ-
   35  mental protection and spill compensation fund created under section  one
   36  hundred  seventy-nine  of  this article the costs it shall have incurred
   37  that are reasonable in light of the action agreed to be undertaken.
   38    (e) There shall be no liability under this subdivision  for  a  person
   39  otherwise  liable  who  can establish by a preponderance of the evidence
   40  that the discharge was caused solely by an act of God; an act of war; or
   41  an act or omission of a third party other than an employee or  agent  of
   42  such person, or than one whose act or omission occurs in connection with
   43  a  contractual  relationship, existing directly or indirectly, with such
   44  person (except where the sole  contractual  arrangement  arises  from  a
   45  published  tariff  and  acceptance  for  carriage by a common carrier or
   46  rail), if such person establishes by a  preponderance  of  the  evidence
   47  that such person is other than one that transports or supplies petroleum
   48  and  exercised  due care with respect to the petroleum concerned, taking
   49  into consideration the characteristics of such petroleum,  in  light  of
   50  all relevant facts and circumstances, and took precautions against fore-
   51  seeable  acts  or omissions of any such third party and the consequences
   52  that could foreseeably result from such acts or omissions; or any combi-
   53  nation of them. For purposes of this paragraph, the  term,  "contractual
   54  relationship," includes, but is not limited to, land contracts, deeds or
   55  other  instruments transferring title or possession, unless the property
   56  on which the discharge concerned is located was acquired by such  person

       S. 6292                            38                            A. 9292

    1  after  the discharge on, in, or at such property, and such person estab-
    2  lishes one or more of the circumstances described in  subparagraph  (i),
    3  (ii) or (iii) of this paragraph by a preponderance of the evidence:
    4    (i)  At the time such person acquired the property such person did not
    5  know and had no reason to know that any petroleum was discharged on, in,
    6  or at the property. To establish that such person has no reason to know,
    7  such person must have undertaken, at the time of acquisition, all appro-
    8  priate inquiry into the previous ownership  and  uses  of  the  property
    9  consistent  with  good  commercial or customary practice in an effort to
   10  minimize liability. For purposes of the preceding sentence, the  commis-
   11  sioner  shall  take into account any specialized knowledge or experience
   12  on the part of such person, the relationship of the  purchase  price  to
   13  the  value  of the property if uncontaminated, commonly known or reason-
   14  ably ascertainable information about the property,  the  obviousness  of
   15  the  presence  or  likely presence of contamination at the property, and
   16  the ability to detect such contamination by appropriate inspection; or
   17    (ii) Such person is a government entity which acquired the property by
   18  escheat, or through any other involuntary transfer or acquisition; or
   19    (iii) Such person acquired the property by inheritance or bequest, and
   20  that such person exercised  due  care  with  respect  to  the  petroleum
   21  concerned,  taking into consideration the characteristics of such petro-
   22  leum, in light of all relevant facts and circumstances and took  precau-
   23  tions  against foreseeable acts or omissions of any such third party and
   24  the consequences that could foreseeably result from such acts  or  omis-
   25  sions.
   26    (f)  Nothing  in  this subdivision shall diminish the liability of any
   27  previous owner or operator of the property who would otherwise be liable
   28  under this subdivision. Notwithstanding this paragraph, if  such  person
   29  obtained  actual  knowledge  of  the discharge at the property when such
   30  person owned the property and then subsequently transferred ownership of
   31  the property to another person without disclosing such  knowledge,  such
   32  person shall be treated as a person responsible for the discharge and no
   33  defense  under this paragraph shall be available to such person. Nothing
   34  in this paragraph shall affect the liability under this subdivision of a
   35  person who, by any act  or  omission,  caused  or  contributed  to  such
   36  discharge of petroleum.
   37    §  21.  Subdivision 5 of section 180 of the navigation law, as amended
   38  by chapter 35 of the laws of 1985, is amended and a new subdivision 6 is
   39  added to read as follows:
   40    5. To disburse moneys from the fund  for  cleanup  and  removal  costs
   41  pursuant to a certification of claims by the commissioner[.];
   42    6. To submit on an annual basis to the governor and legislature within
   43  sixty  days  of the end of the state fiscal year an independent audit of
   44  the New York environmental protection and spill compensation fund.
   45    § 22. Subdivision 4 of section 181 of the navigation law,  as  amended
   46  by  chapter  458 of the laws of 1978, is amended and a new subdivision 7
   47  is added to read as follows:
   48    4. [An] Notwithstanding subdivision one of this section  and  subdivi-
   49  sions  one,  two, three and four of section one hundred seventy-two-a of
   50  this article, an act or omission caused  solely  by  war,  sabotage,  or
   51  governmental  negligence  shall be the only defenses which may be raised
   52  by any owner or operator of a major facility or vessel responsible for a
   53  discharge in any action arising under the provisions of this article.
   54    7. Notwithstanding the  foregoing,  a  person  receiving  a  liability
   55  exemption  or liability limitation under subdivision one of this section
   56  or under subdivision one, two, three or  four  of  section  one  hundred

       S. 6292                            39                            A. 9292

    1  seventy-two-a  of  this article shall be deemed to have waived any claim
    2  pursuant to subdivision two of this section that such  person  may  have
    3  against  the  New  York  environmental protection and spill compensation
    4  fund.
    5    §  23.  Section  183 of the navigation law, as added by chapter 845 of
    6  the laws of 1977, is amended to read as follows:
    7    § 183. Settlements.  1. The administrator shall attempt to promote and
    8  arrange a settlement between the claimant and the person responsible for
    9  the discharge. If the source of the  discharge  can  be  determined  and
   10  liability is conceded, the claimant and the alleged discharger may agree
   11  to  a  settlement  which shall be final and binding upon the parties and
   12  which will waive all recourse against the fund.
   13    2. After the successful implementation of an order  on  consent  which
   14  provides  for  the  cleanup  and  removal  of  the discharge, the person
   15  subject to the order shall submit to the department  a  written  certif-
   16  ication  prepared  by  an individual licensed or otherwise authorized in
   17  accordance with article one hundred forty-five of the education  law  to
   18  practice  the profession of engineering who shall have been in charge of
   19  the implementation of the  cleanup  and  removal  activities  undertaken
   20  pursuant  to such order substantiating that, at a minimum, such remedial
   21  activities satisfied the remedial requirements set forth in such order.
   22    3. Upon the department's receipt of such certification, the department
   23  shall  review the final engineering report and the data submitted pursu-
   24  ant to the order as well as any other relevant information regarding the
   25  discharge. The department shall provide the person, upon  its  satisfac-
   26  tion  that  the  remedial  requirements  for  the  discharge  have  been
   27  achieved, with a covenant not to sue, binding upon the  state,  for  any
   28  liability,  including  any  future  liability  or  claim for the further
   29  cleanup or removal of petroleum relating to the discharge that  was  the
   30  subject  of  such order except that a person responsible for the cleanup
   31  and removal of the discharge pursuant to section one hundred  eighty-one
   32  of  this  article  shall  not  receive  a  release  for natural resource
   33  damages. Additionally, the state nonetheless shall reserve  all  of  its
   34  rights  concerning,  and  such covenant shall not extend to, any further
   35  investigation or remedial action the department deems  necessary,  as  a
   36  result of:
   37    (a) a failure to comply with the terms and conditions of the order;
   38    (b)  a  fraudulent demonstration that the cleanup levels identified in
   39  the order were reached;
   40    (c) a release or threatened release at  the  site  subsequent  to  the
   41  effective date of the order;
   42    (d) a change in the site's use subsequent to the effective date of the
   43  order  to a use requiring a lower level of residual contamination unless
   44  additional remedial activities are undertaken which shall meet the stan-
   45  dard for protection of public health and the environment that applies to
   46  remedial actions for such use under this article;
   47    (e) information received, in whole or in part, after the  department's
   48  execution  of  such  order, which indicates that the cleanup and removal
   49  performed, or to be performed, under such order will not be, or is  not,
   50  protective of public health or the environment for such use of the site;
   51  or
   52    (f)  the  department  determines  that  the  remedy implemented is not
   53  protective of public health or the environment.
   54    4. The reservation contained in paragraph (d) of subdivision three  of
   55  this section shall not be reserved in the event a person remediates soil
   56  contamination to soil category 1, as that term is described in paragraph

       S. 6292                            40                            A. 9292

    1  a of subdivision three of section 27-1316 of the environmental conserva-
    2  tion law.
    3    5.  The reservation contained in paragraph (f) of subdivision three of
    4  this section shall not be reserved for a person who is  not  responsible
    5  for  the  cleanup  and  removal  of the discharge pursuant to applicable
    6  principles of statutory or common law liability, or who is liable solely
    7  as a result of ownership or operation of the affected site subsequent to
    8  the disposal of hazardous waste or the discharge of  petroleum,  in  the
    9  event that such person remediates soil contamination to soil category 1,
   10  as that term is described in paragraph a of subdivision three of section
   11  27-1316 of the environmental conservation law.
   12    6.  The  covenant  not  to  sue  issued pursuant to this section shall
   13  extend to the person's successors  or  assigns  through  acquisition  of
   14  title to the site to which the liability release applies and to a person
   15  who  develops or otherwise occupies the site, provided that such persons
   16  act in good faith to adhere to the requirements of such order and  work-
   17  plan. However, such covenant does not extend, and cannot be transferred,
   18  to  a  person  who  is  responsible as of the date of the issuance of an
   19  order on consent for the discharge of petroleum according to section one
   20  hundred eighty-one of this article unless that person was party  to  the
   21  order on which such covenant was based. A notice of the order containing
   22  such covenant shall be recorded and indexed as a declaration of covenant
   23  in  the office of the recording officer for the county or counties where
   24  such site is located in the manner prescribed by  article  nine  of  the
   25  real  property law within thirty days of signing the order if the person
   26  is an owner or within thirty days of acquiring title of the site if  the
   27  person is a prospective purchaser.
   28    7. The provisions of this title shall not affect an action or a claim,
   29  including  a  claim  for  contribution,  that a person who implements or
   30  completes an order executed by such person and the department  providing
   31  for  the  cleanup  and removal of the discharge pursuant to this article
   32  has or may have against a third party.
   33    8. Nothing in this section shall be construed  to  affect  either  the
   34  liability  of any person with respect to any costs, damages, or investi-
   35  gative or remedial activities that are not included in the order; or the
   36  department's authority to maintain an action or proceeding  against  any
   37  person who is not subject to the order.
   38    9. A person who has settled its liability to the department under this
   39  section  shall  not  be  liable  for  claims  for contribution regarding
   40  matters addressed in the order. Such settlement does not  discharge  any
   41  of  the persons responsible under law for the cleanup and removal of the
   42  discharge unless its terms so provide,  but  it  reduces  the  potential
   43  liability of the others by the amount of the settlement.
   44    10. Nothing in this section shall be construed to affect the authority
   45  of the department to reach settlement with other persons consistent with
   46  its authority under applicable law.
   47    §  24.    Subdivisions  24,  25  and  26 of section 1281 of the public
   48  authorities law, subdivision 24 as amended by chapter 857 of the laws of
   49  1982, subdivision 25 as amended by chapter 295 of the laws of  1994  and
   50  subdivision  26 as added by chapter 282 of the laws of 1979, are amended
   51  to read as follows:
   52    24. "Hazardous waste" shall [mean a waste which appears on the list or
   53  satisfies the characteristics promulgated by the commissioner  of  envi-
   54  ronmental  conservation pursuant to section 27-0903 of the environmental
   55  conservation law and until, but not  after,  the  promulgation  of  such

       S. 6292                            41                            A. 9292

    1  list,  a  waste or combination of wastes, which because of its quantity,
    2  concentration, or physical, chemical or infectious characteristics may:
    3    a.  Cause,  or significantly contribute to an increase in mortality or
    4  an  increase  in  serious  irreversible  or  incapacitating   reversible
    5  illness; or
    6    b.  Pose  a substantial present or potential hazard to human health or
    7  the environment when improperly treated, stored,  transported,  disposed
    8  or  otherwise  managed]  have  the  same meaning as set forth in section
    9  27-1301 of the environmental conservation law.
   10    25. "Inactive hazardous waste disposal site" shall [mean any  area  or
   11  structure used for the long term storage or final placement of hazardous
   12  waste including, but not limited to, dumps, landfills, lagoons and arti-
   13  ficial  treatment  ponds,  as  to  which  area or structure no permit or
   14  authorization issued by the department of environmental conservation  or
   15  a federal agency for the disposal of hazardous waste was in effect after
   16  the  effective  date of this title and any inactive area or structure on
   17  the National Priorities List  established  under  the  authority  of  42
   18  U.S.C.A.  Section  9605]  have  the same meaning as set forth in section
   19  27-1301 of the environmental conservation law.
   20    26. "Inactive hazardous waste disposal site  remedial  program"  shall
   21  [mean  activities  undertaken  to  eliminate,  remove, abate, control or
   22  monitor health and/or environmental  hazards  or  potential  hazards  in
   23  connection  with  inactive hazardous waste disposal sites or to treat or
   24  dispose of wastes and  waste  contaminated  materials  from  such  sites
   25  including, but not limited to, grading, contouring, trenching, grouting,
   26  capping,  excavation,  transporting,  incineration,  chemical treatment,
   27  biological treatment or the  construction  of  leachate  collection  and
   28  treatment  facilities]  have  the  same  meaning as set forth in section
   29  27-1301 of the environmental conservation law.
   30    § 25. Section 1389-a of the public health law, as added by chapter 282
   31  of the laws of 1979, subdivision 1 as amended by chapter 857 of the laws
   32  of 1982 and subdivision 2 as amended by chapter 295 of the laws of 1994,
   33  is amended to read as follows:
   34    § 1389-a. Definitions.   1. "Hazardous waste"  means  [a  waste  which
   35  appears  on the list or satisfies the characteristics promulgated by the
   36  commissioner of environmental conservation pursuant to  section  27-0903
   37  of  the  environmental  conservation  law  and until, but not after, the
   38  promulgation of such list, or a waste or combination  of  wastes,  which
   39  because  of its quantity, concentration, or physical, chemical or infec-
   40  tious characteristics may:
   41    a. Cause, or significantly contribute to an increase in  mortality  or
   42  an   increase  in  serious  irreversible  or  incapacitating  reversible
   43  illness; or
   44    b. Pose a substantial present or potential hazard to human  health  or
   45  the  environment  when improperly treated, stored, transported, disposed
   46  or otherwise managed] hazardous waste as defined in section  27-1301  of
   47  the environmental conservation law.
   48    2.  "Inactive hazardous waste disposal site" means [any area or struc-
   49  ture used for the long term storage  or  final  placement  of  hazardous
   50  waste including, but not limited to, dumps, landfills, lagoons and arti-
   51  ficial  treatment  ponds,  as  to  which  area or structure no permit or
   52  authorization issued by the department of environmental conservation  or
   53  a federal agency for the disposal of hazardous waste was in effect after
   54  the  effective  date of this title and any inactive area or structure on
   55  the National Priorities List  established  under  the  authority  of  42
   56  U.S.C.A. Section 9605] an inactive hazardous waste disposal site as that

       S. 6292                            42                            A. 9292

    1  term  is  defined  in  section 27-1301 of the environmental conservation
    2  law.
    3    3.  "Inactive  hazardous  waste  disposal site remedial program" means
    4  [activities undertaken to eliminate, remove, abate, control  or  monitor
    5  health  and/or  environmental hazards or potential hazards in connection
    6  with inactive hazardous waste disposal sites or to treat or  dispose  of
    7  wastes  and  waste contaminated materials from such sites including, but
    8  not limited to, grading, contouring, trenching, grouting, capping, exca-
    9  vation,  transporting,  incineration,  chemical  treatment,   biological
   10  treatment  or  construction of leachate collection and treatment facili-
   11  ties] an inactive hazardous waste disposal site remedial program as that
   12  term is defined in section 27-1301  of  the  environmental  conservation
   13  law.
   14    4.  "Person"  means  an  individual, trust, firm, joint stock company,
   15  corporation, partnership, association, state, municipality,  commission,
   16  political  subdivision  of  a  state,  public benefit corporation or any
   17  interstate body.
   18    a. Such term includes any  person  owning  or  operating  an  inactive
   19  hazardous  waste  disposal  site but does not include a person that is a
   20  lender that, without participating in the management of such site, holds
   21  indicia of ownership primarily to protect the security interest  of  the
   22  person  in such site; nor does it include a person that is a lender that
   23  did not participate in management of such  site  prior  to  foreclosure,
   24  notwithstanding  that the person forecloses on such site and after fore-
   25  closure, sells, re-leases (in the case of a lease finance  transaction),
   26  or  liquidates  such site, maintains business activities, winds up oper-
   27  ations, undertakes in a non-negligent manner remedial actions under  the
   28  direction  of  the  department,  with respect to such site, or takes any
   29  other measure to preserve, protect, or prepare such site prior  to  sale
   30  or  disposition, if the person seeks to sell, re-lease (in the case of a
   31  lease finance transaction), or otherwise divest the person of such  site
   32  at the earliest practicable commercially reasonable time, on commercial-
   33  ly reasonable terms, taking into account market conditions and legal and
   34  regulatory requirements. For purposes of this paragraph:
   35    (i)  the term "participate in management" means actually participating
   36  in the management or operational affairs of  such  site;  and  does  not
   37  include  merely  having  the  capacity  to influence, or the unexercised
   38  right to control, such site's operations;
   39    (ii) a person that is a lender and that  holds  indicia  of  ownership
   40  primarily  to  protect a security interest in such site shall be consid-
   41  ered to participate in management only if, while the borrower  is  still
   42  in  possession of such site, the person exercises decisionmaking control
   43  over the environmental compliance related to such site,  such  that  the
   44  person has undertaken responsibility for the hazardous waste handling or
   45  disposal practices related to such site; or exercises control at a level
   46  comparable  to  that of a manager of such site, such that the person has
   47  assumed or manifested responsibility for the overall management of  such
   48  site  encompassing  day-to-day  decisionmaking  with respect to environ-
   49  mental compliance; or over all or substantially all of  the  operational
   50  functions  (as distinguished from financial or administrative functions)
   51  of such site other than the function of environmental compliance;
   52    (iii) the term "participate in management" does not include performing
   53  an act or failing to act prior to the time at which a security  interest
   54  is created in such site;
   55    (iv)  the  term "participate in management" does not include holding a
   56  security interest  or  abandoning  or  releasing  a  security  interest;

       S. 6292                            43                            A. 9292

    1  including  in  the  terms of an extension of credit, or in a contract or
    2  security agreement relating to the extension, a covenant,  warranty,  or
    3  other  term or condition that relates to environmental compliance; moni-
    4  toring  or enforcing the terms and conditions of the extension or credit
    5  or security interest; monitoring or undertaking one or more  inspections
    6  of  such  site;  requiring  a  response  action or other lawful means of
    7  addressing the release or threatened release of  a  hazardous  waste  in
    8  connection  with such site prior to, during, or on the expiration of the
    9  term of the extension of credit; providing financial or other advice  or
   10  counseling in an effort to mitigate, prevent, or cure default or diminu-
   11  tion  in the value of such site; restructuring, renegotiating, or other-
   12  wise agreeing to alter the terms and  conditions  of  the  extension  of
   13  credit  or  security  interest; exercising forbearance; exercising other
   14  remedies that may be available under applicable law for the breach of  a
   15  term  or  condition of the extension of credit or security agreement; or
   16  conducting in a non-negligent manner a remedial action directly or under
   17  the direction of the department, if the actions do not rise to the level
   18  of participating in management (within the meaning of subparagraphs  (i)
   19  and (ii) of this paragraph);
   20    (v)  the  term  "extension  of credit" includes a lease finance trans-
   21  action in which the lessor does not initially select  such  leased  site
   22  and does not during the lease term control the daily operations or main-
   23  tenance  of  such  site; or that conforms with regulations issued by the
   24  appropriate federal banking agency (as defined in 12 USC  section  1813)
   25  or  the  superintendent  of  banks  or  with  regulations  issued by the
   26  National Credit Union Administrative Board, as appropriate;
   27    (vi) the term "financial or administrative function" includes a  func-
   28  tion  such  as  that  of  a  credit  manager,  accounts payable officer,
   29  accounts receivable officer, personal  manager,  comptroller,  or  chief
   30  financial officer, or a similar function;
   31    (vii)  the  terms  "foreclosure"  and  "foreclose" mean, respectively,
   32  acquiring and to acquire, such site through purchase  at  sale  under  a
   33  judgement  or  decree, power of sale, or nonjudicial foreclosure sale; a
   34  deed in lieu of foreclosure, or similar conveyance from  a  trustee;  or
   35  repossession,  if  such  site  was  security  for an extension of credit
   36  previously contracted; conveyance pursuant to  an  extension  of  credit
   37  previously  contracted,  including the termination of a lease agreement;
   38  or any other formal or informal manner by which the person acquires, for
   39  subsequent disposition, title to or possession of such site in order  to
   40  protect the security interest of the person;
   41    (viii)  the  term "lender" means an insured depository institution (as
   42  defined in 12 USC section 1813); an insured credit union (as defined  in
   43  12  USC  section  1752);  a bank or association chartered under the Farm
   44  Credit Act of 1971 (12 U.S.C. 2001 et seq.); a leasing or trust  company
   45  that  is  an  affiliate of an insured depository institution; any person
   46  (including a successor or assignee of any such person) that makes a bona
   47  fide extension of credit to or takes or  acquires  a  security  interest
   48  from  a nonaffiliated person; the Federal National Mortgage Association,
   49  the Federal Home Loan Mortgage  Corporation,  the  Federal  Agricultural
   50  Mortgage  Corporation,  or  any  other entity that in a bona fide manner
   51  buys or sells loans or interests in loans;  a  person  that  insures  or
   52  guarantees against a default in the repayment of an extension of credit,
   53  or  acts as a surety with respect to an extension of credit, to a nonaf-
   54  filiated person; and a person that provides  title  insurance  and  that
   55  acquires such site as a result of assignment or conveyance in the course
   56  of underwriting claims and claims settlements;

       S. 6292                            44                            A. 9292

    1    (ix)  the term "operational function" includes a function such as that
    2  of a facility or plant  manager,  operations  manager,  chief  operating
    3  officer, or chief executive officer; and
    4    (x)  the  term  "security interest" includes a right under a mortgage,
    5  deed of trust, assignment, judgment lien,  pledge,  security  agreement,
    6  factoring  agreement,  or lease and any other right accruing to a person
    7  to secure the repayment of money, the performance  of  a  duty,  or  any
    8  other obligation by a nonaffiliated person.
    9    b.  Such  term  includes  any  person  owning or operating an inactive
   10  hazardous waste disposal site but does not include the state of New York
   11  or a public corporation which acquired, and thereafter retained  without
   12  participating  in  the  management  of  such  site, ownership or control
   13  involuntarily by virtue of its function as sovereign. Neither the  state
   14  of  New  York  nor any public corporation shall incur under this chapter
   15  any liability as to matters within the jurisdiction of the department as
   16  a result of actions taken in response to an  emergency  created  by  the
   17  release  or  threatened  release  of  hazardous waste by another person,
   18  provided that such actions by the state or public  corporation  did  not
   19  constitute  reckless, willful, wanton or intentional misconduct. As used
   20  in this paragraph:
   21    (i) "public corporation" means a public corporation as defined in  the
   22  general construction law;
   23    (ii) "involuntary acquisition of ownership or control" includes but is
   24  not limited to the following:
   25    (A)  acquisitions by the state or a public corporation in its capacity
   26  as   sovereign,   including   acquisitions   pursuant   to   abandonment
   27  proceedings, or escheat, or any other circumstance of involuntary acqui-
   28  sition in its capacity as sovereign;
   29    (B)  acquisitions  by the state or a public corporation, or its agent,
   30  acting as a conservator or receiver pursuant to a clear and direct stat-
   31  utory mandate or regulatory authority;
   32    (C) acquisitions of assets through foreclosure and its equivalents, or
   33  otherwise, by the state or a public corporation in the course of  admin-
   34  istering a loan, loan guarantee or loan insurance program;
   35    (D)  acquisitions  by  the  state  or a public corporation pursuant to
   36  seizure or forfeiture authority; and
   37    (E) acquisitions by the state or a public corporation as the result of
   38  tax delinquency purposes, provided, that such ownership  or  control  is
   39  not retained primarily for investment purposes.
   40    (iii) "management participation" means that the state or public corpo-
   41  ration  is  actually participating in the management or operation of the
   42  property but does not include the mere capacity to influence, ability to
   43  influence or unexercised right to control the operation of the property.
   44  Nothing contained in this paragraph affects the applicability  of  para-
   45  graph a  of this subdivision in favor of a holder of a security interest
   46  according to the terms thereof.
   47    c.  Such  term  includes  any  person  owning or operating an inactive
   48  hazardous waste disposal site, including a fiduciary; provided, however,
   49  that such liability on the part of a  fiduciary  shall  not  exceed  the
   50  assets held in the fiduciary capacity if such person is not liable inde-
   51  pendently  of such person's ownership as a fiduciary or actions taken in
   52  a fiduciary capacity including, but not limited to, the fiduciary negli-
   53  gently causing or contributing to the release or threatened  release  of
   54  hazardous waste at such site.
   55    (i) For purposes of this paragraph:

       S. 6292                            45                            A. 9292

    1    (A)  the  term,  "fiduciary," means a person acting for the benefit of
    2  another party as a bona fide trustee;  executor;  administrator;  custo-
    3  dian;  guardian  of estates or guardian ad litem; receiver; conservator;
    4  committee of estates of incapacitated persons; personal  representative;
    5  trustee  (including  a successor to a trustee) under an indenture agree-
    6  ment, trust agreement, lease, or similar financing agreement,  for  debt
    7  securities, certificates of interest or certificates of participation in
    8  debt  securities, or other forms of indebtedness as to which the trustee
    9  is not, in the capacity of trustee, the lender; or representative in any
   10  other capacity that  the  department,  after  providing  public  notice,
   11  determines  to be similar to the various capacities previously described
   12  in this paragraph; and does not include either a person that  is  acting
   13  as  a  fiduciary  with respect to a trust or other fiduciary estate that
   14  was organized for the primary purpose of, or  is  engaged  in,  actively
   15  carrying  on  a  trade  or business for profit unless the trust or other
   16  fiduciary estate was created as part of, or to facilitate, one  or  more
   17  estate  plans  or  because  of  the  incapacity of a natural person or a
   18  person that acquires ownership or control of a property with the  objec-
   19  tive purpose of avoiding liability of the person or any other person.
   20    (B)  the term, "fiduciary capacity," means the capacity of a person in
   21  holding title to a property, or otherwise having control of or an inter-
   22  est in a property, pursuant to the exercise of the  responsibilities  of
   23  the person as a fiduciary.
   24    (ii)  Nothing  in  this  paragraph affects the rights or immunities or
   25  other defenses that are available under law  that  is  applicable  to  a
   26  person  subject  to  this  subdivision;  or  creates any liability for a
   27  person or a private right of action against a  fiduciary  or  any  other
   28  person.
   29    (iii)  Nothing  in  this  paragraph applies to a person if that person
   30  acts in a capacity other than that of a fiduciary or  in  a  beneficiary
   31  capacity  and  in  that capacity, directly or indirectly benefits from a
   32  trust or fiduciary relationship; or is a  beneficiary  and  a  fiduciary
   33  with  respect  to the same fiduciary estate and as a fiduciary, receives
   34  benefits that exceed customary or  reasonable  compensation,  and  inci-
   35  dental benefits, permitted under other applicable law.
   36    d.  Such  term  includes  any  person  owning or operating an inactive
   37  hazardous waste  disposal  site,  including  an  industrial  development
   38  authority  created  under  this  chapter, other than one that holds bare
   39  legal title to such site; has not participated with any party  responsi-
   40  ble  under law for the remediation of contamination in, on, or from such
   41  site to attempt to have such a party avoid its remedial  liability;  has
   42  not  exercised  any contractual rights it may have or had, if any, under
   43  the lease, guarantee, or any other financing agreement pursuant to which
   44  the industrial development authority would assume control over the actu-
   45  al operation of the site; and has not taken possession or control of the
   46  site. Nothing in this paragraph affects  the  rights  or  immunities  or
   47  other  defenses  that  are available under law that are applicable to an
   48  industrial development authority; or creates any liability for a  person
   49  or a private right of action against an industrial development authority
   50  or any other person.
   51    5.  "Waste"  means [any garbage, refuse, sludge from a waste treatment
   52  plant, water supply treatment plant, or air pollution control  facility,
   53  and other discarded material, whether or not such material may eventual-
   54  ly  be  used for some other purpose, including solid, liquid, semisolid,
   55  or contained gaseous material  resulting  from  industrial,  commercial,
   56  mining  and  agricultural  operations  or from community activities, and

       S. 6292                            46                            A. 9292

    1  source, special nuclear or by-product material as defined in the  Atomic
    2  Energy  Act  of  1954, as amended, except as may be provided by existing
    3  agreements between the state of New  York  and  the  government  of  the
    4  United  States,  but  does  not  include  solid or dissolved material in
    5  domestic sewage, or solid or dissolved materials  in  irrigation  return
    6  flows  or  industrial  discharges  which  are  point  sources subject to
    7  permits under article seventeen of the environmental  conservation  law]
    8  waste  as  that  term is defined in section 27-1301 of the environmental
    9  conservation law.
   10    § 26. Subdivision 4 of section 1389-b of the  public  health  law,  as
   11  added by chapter 282 of the laws of 1979, is amended to read as follows:
   12    4. (a) Any order issued pursuant to subdivision three of this section,
   13  other  than  one  issued  on consent of the person, shall be issued only
   14  after notice and the opportunity for hearing is provided to the  persons
   15  who  may  be the subject of such order. The commissioner shall determine
   16  which persons are responsible pursuant to said subdivision according  to
   17  applicable principles of statutory or common law liability. Such persons
   18  shall  be  entitled to raise any statutory or common law defenses at any
   19  such hearing and such defenses shall have the same force and  effect  at
   20  such hearings as they would have in a court of law. In the event a hear-
   21  ing is held, no order shall be issued by the commissioner under subdivi-
   22  sion three of this section until a final decision has been rendered. Any
   23  such  order shall be reviewable pursuant to article seventy-eight of the
   24  civil practice law and rules within thirty days after  service  of  said
   25  order.  The  commissioner  may request the participation of the attorney
   26  general in such hearings.
   27    (b) There shall be no liability under this section for a person other-
   28  wise liable who can establish by a preponderance of  the  evidence  that
   29  the  significant  threat  to  the  environment attributable to hazardous
   30  waste disposed at an inactive hazardous waste disposal site  was  caused
   31  solely by an act of God; an act of war; or an act or omission of a third
   32  party  other than an employee or agent of such person, or then one whose
   33  act or omission occurs in connection with  a  contractual  relationship,
   34  existing directly or indirectly, with such person (except where the sole
   35  contractual  arrangement  arises  from a published tariff and acceptance
   36  for carriage by a common carrier or rail), if such person establishes by
   37  a preponderance of the evidence that such person exercised due care with
   38  respect to the hazardous waste concerned, taking into consideration  the
   39  characteristics  of such hazardous waste, in light of all relevant facts
   40  and circumstances and took precautions against foreseeable acts or omis-
   41  sions of any such third party and the consequences that  could  foresee-
   42  ably result from such acts or omissions; or any combination of them. For
   43  purposes  of  this  paragraph,  the  term,  "contractual  relationship,"
   44  includes, but is not limited to, land contracts, deeds or other  instru-
   45  ments  transferring  title  or  possession,  unless the real property on
   46  which the site concerned is located was acquired by  such  person  after
   47  the  disposal  or  placement  of  the hazardous waste on, in, or at such
   48  site, and such person establishes  one  or  more  of  the  circumstances
   49  described  in  subparagraph  (i),  (ii)  or (iii) of this paragraph by a
   50  preponderance of the evidence:
   51    (i) At the time such person acquired the site such person did not know
   52  and had no reason to know that any hazardous waste which is the  subject
   53  of  the  significant  threat determination was disposed of on, in, or at
   54  the site.  To establish that such person has no  reason  to  know,  such
   55  person must have undertaken, at the time of acquisition, all appropriate
   56  inquiry  into  the  previous  ownership and uses of such site consistent

       S. 6292                            47                            A. 9292

    1  with good commercial or customary practice  in  an  effort  to  minimize
    2  liability.  For  purposes  of  the  preceding sentence, the commissioner
    3  shall take into account any specialized knowledge or experience  on  the
    4  part of such person, the relationship of the purchase price to the value
    5  of  the property if uncontaminated, commonly known  or reasonably ascer-
    6  tainable information about the property, the obviousness of the presence
    7  or likely presence of contamination at the property, and the ability  to
    8  detect such contamination by appropriate inspection; or
    9    (ii)  Such  person  is  a government entity which acquired the site by
   10  escheat, or through any other involuntary transfer or acquisition; or
   11    (iii) Such person acquired the site by  inheritance  or  bequest,  and
   12  that  such person exercised due care with respect to the hazardous waste
   13  concerned, taking into consideration the characteristics of such hazard-
   14  ous waste, in light of all relevant facts  and  circumstances  and  took
   15  precautions  against  foreseeable  acts  or  omissions of any such third
   16  party and the consequences that could foreseeably result from such  acts
   17  or omissions.
   18    § 27. Section 1389-e of the public health law is REPEALED.
   19    §  28.  Section  316-b of the real property law is amended by adding a
   20  new subdivision 3 to read as follows:
   21    3. Each recording officer shall record and index each  declaration  of
   22  restriction or any other declaration of covenants that shall be recorded
   23  under  title  fourteen  of  article  twenty-seven  of  the environmental
   24  conservation law or under any other provision of such law.
   25    § 29. Subdivisions 1, 2, 3, 6, paragraph (a) of subdivision 12, subdi-
   26  visions 13, 14 and 15 of section 97-b of the state finance law, subdivi-
   27  sions 1, 2 and paragraph (f) of subdivision 3 as amended  and  paragraph
   28  (g) as added by chapter 413 of the laws of 1996, paragraph (e) of subdi-
   29  vision  3  as amended by chapter 9 of the laws of 1994, subdivision 6 as
   30  amended by chapter 38 of the laws of 1985, paragraph (a) of  subdivision
   31  12 as amended by section 13 of part C of chapter 389 of the laws of 1997
   32  and  subdivision 3 as amended and subdivisions 13, 14 and 15 as added by
   33  chapter 512 of the laws of 1986, are amended and two new subdivisions 16
   34  and 17 are added to read as follows:
   35    1. There is hereby established in the custody of the state comptroller
   36  a nonlapsing revolving fund to be known as the "hazardous waste remedial
   37  fund" which shall consist of  a  "site  investigation  and  construction
   38  account"  [and],  an "industry fee transfer account," [and] an "environ-
   39  mental restoration project account,"  and  a  "hazardous  waste  cleanup
   40  account".
   41    2. Such fund shall consist of all of the following:
   42    (a)  all  moneys [appropriated for transfer] transferred to the fund's
   43  site investigation and construction account; (b)  all  fines  and  other
   44  sums  accumulated  in  the  fund  prior to April first, nineteen hundred
   45  eighty-eight pursuant to section 71-2725 of the environmental  conserva-
   46  tion  law  for deposit in the fund's site investigation and construction
   47  account; (c) [all moneys collected or  received  by  the  department  of
   48  taxation  and  finance  pursuant to section 27-0923 of the environmental
   49  conservation law  for  deposit  in  the  fund's  industry  fee  transfer
   50  account;  (d)  all moneys paid into the fund pursuant to section 72-0201
   51  of the environmental conservation law which shall be  deposited  in  the
   52  fund's industry fee transfer account; (e)] all moneys paid into the fund
   53  pursuant  to  section one hundred eighty-six of the navigation law which
   54  shall be deposited in the fund's industry fee  transfer  account;  [(f)]
   55  (d)  all  moneys  paid  into the fund by municipalities for repayment of
   56  landfill closure loans made pursuant to former  title  five  of  article

       S. 6292                            48                            A. 9292

    1  fifty-two  of  the  environmental  conservation  law  for deposit in the
    2  fund's site investigation and construction account; [(g)] (e) all monies
    3  recovered under section 56-0507 of the  environmental  conservation  law
    4  into the fund's environmental restoration project account; [and (h)] (f)
    5  all  monies transferred from the remedial program transfer fund, created
    6  pursuant to subdivision five of section ninety-seven-uuu  of  the  state
    7  finance  law,  to  the  fund's  hazardous waste cleanup account; and (g)
    8  other moneys credited or transferred thereto  from  any  other  fund  or
    9  source  for  deposit  in  the fund's site investigation and construction
   10  account.
   11    3. Moneys of the hazardous waste remedial fund except  monies  in  the
   12  industry  fee  transfer  account,  when allocated, shall be available to
   13  [the department of environmental conservation] all state departments and
   14  agencies for the following purposes:
   15    (a) inactive hazardous waste disposal site remedial programs  pursuant
   16  to  section  27-1313  of  the environmental conservation law and section
   17  thirteen hundred eighty-nine-b of the public health law;
   18    (b) cleaning up or restoring to its  original  state  any  area  where
   19  hazardous  wastes  were disposed of or possessed unlawfully in violation
   20  of article twenty-seven of the environmental conservation law.  For  the
   21  purposes of this section "the original state of the area" shall mean the
   22  reasonably  ascertainable condition of the property immediately prior to
   23  the unlawful disposal or, if  it  is  impracticable  to  determine  such
   24  condition,  then it is the reasonable environmentally sound condition of
   25  the area;
   26    (c) inactive hazardous waste site identification,  classification  and
   27  investigation  actions  including testing, analyses, record searches and
   28  other expenditures necessary to develop  the  state  inactive  hazardous
   29  waste  disposal  site remedial plan required pursuant to section 27-1305
   30  of the environmental conservation law;
   31    (d) financing the non-federal share of the cost of clean up, and  site
   32  remediation activities as well as post-closure operation and maintenance
   33  costs,  pursuant  to  the  federal Comprehensive Environmental Response,
   34  Compensation and Liability Act of 1980;
   35    (e) emergency response action to clean up spills or abate other public
   36  health or environmental hazards involving hazardous wastes except  those
   37  provided for under the New York state environmental protection and spill
   38  compensation fund;
   39    (f) [the study of hazardous substance waste disposal sites pursuant to
   40  section  27-1316  of  the environmental conservation law and section one
   41  thousand three hundred eighty-nine-e of the public health law; and
   42    (g)] to undertake such remedial measures as the department of environ-
   43  mental conservation may determine necessary due to environmental  condi-
   44  tions  related  to the property subject to an agreement to provide state
   45  assistance under title five of article fifty-six  of  the  environmental
   46  conservation law that were unknown to such department at the time of its
   47  approval of such agreement which indicates that conditions on such prop-
   48  erty  are not sufficiently protective of human health for its reasonably
   49  anticipated uses or due to information received, in whole  or  in  part,
   50  after  such  department's approval of such agreement's final engineering
   51  report and certification, which indicates that such agreement's remedial
   52  activities are not sufficiently protective  of  human  health  for  such
   53  property's  reasonably  anticipated  uses; and, respecting the monies in
   54  the environmental restoration project account in excess of  ten  million
   55  dollars,  shall  provide  state  assistance  under title five of article
   56  fifty-six of the environmental conservation law;

       S. 6292                            49                            A. 9292

    1    (g) with respect to moneys in the hazardous waste cleanup account,  to
    2  pay the reasonable costs incurred by the state in overseeing implementa-
    3  tion  of  voluntary  agreements and conducting state remediation actions
    4  under title  fourteen  of  article  twenty-seven  of  the  environmental
    5  conservation law;
    6    (h)  with respect to moneys in the hazardous waste cleanup account, to
    7  provide state assistance pursuant to section nine hundred  seventy-r  of
    8  the general municipal law.
    9    6.  The  commissioner  of the department of environmental conservation
   10  shall make all reasonable efforts to recover  the  full  amount  of  any
   11  funds  expended  from  the fund pursuant to paragraph (a) of subdivision
   12  three of this section through litigation or cooperative agreements  with
   13  responsible persons. Any and all moneys recovered or reimbursed pursuant
   14  to  this  section  through voluntary agreements or court orders shall be
   15  deposited with the comptroller and credited to the account of such  fund
   16  from  which  such  expenditures  were  made; provided, however, that any
   17  moneys recovered or reimbursed for funds  expended  from  the  hazardous
   18  waste  cleanup account shall be deposited in the remedial program trans-
   19  fer fund.
   20    (a) The comptroller shall, on July  first,  nineteen  hundred  eighty-
   21  eight  and  on  each  succeeding  July  first  until  such  time  as the
   22  surcharges required pursuant to subdivision fourteen of this section are
   23  imposed, estimate the amount of revenues to be received by the  industry
   24  fee  transfer  account of this fund in the next succeeding twenty months
   25  and the transfers which will be required to  be  made  during  the  same
   26  period.  When  calculating the estimate of industry fee transfer account
   27  revenues available for the  purpose  of  certifying,  pursuant  to  this
   28  subdivision,  when  such  account's balance will be insufficient to make
   29  the transfer required by subdivision eleven of this section,  the  comp-
   30  troller  shall  add  to the amount estimated to actually be available an
   31  additional credit factor as determined by paragraph (b) of this subdivi-
   32  sion. If the comptroller  determines  that  the  industry  fee  transfer
   33  account  will,  at  any  time during the succeeding twenty month period,
   34  lack sufficient funds to make the transfer required by subdivision elev-
   35  en of this section, the comptroller shall so certify to the [state super
   36  fund management board, created pursuant to section 27-1319 of the  envi-
   37  ronmental conservation law, and to the] governor and the legislature.
   38    13. [Upon the receipt of a certification provided pursuant to subdivi-
   39  sion  twelve of this section, the state superfund management board shall
   40  review and analyze the historical pattern of  revenue  received  by  the
   41  industry  fee  transfer  account  and the long term projection of future
   42  transfers from such account, and shall  report  on  or  before  December
   43  first  of  such year to the governor and the legislature its recommenda-
   44  tions, if any, as to the sources of additional revenues which  could  be
   45  used  to supplement the revenues to be received by such fund in order to
   46  achieve the equal sharing of debt service costs as implemented in subdi-
   47  vision nine of this section.
   48    14.] In the absence of further direction by law, effective April first
   49  of the fiscal year immediately following the certification by the  comp-
   50  troller  made pursuant to subdivision twelve of this section, surcharges
   51  in the following amount shall be imposed: (a) twenty-five percent of the
   52  fees imposed by  sections  72-0402  and  72-0502  of  the  environmental
   53  conservation  law.  Notwithstanding  any  other  provision of law to the
   54  contrary, moneys collected from such surcharge  shall  be  deposited  in
   55  their entirety to the industry fee transfer account established pursuant
   56  to  subdivision  one  of  this  section;  (b)  fifty percent of the fees

       S. 6292                            50                            A. 9292

    1  imposed by section 27-0923 of the environmental conservation law, except
    2  for those fees contained in paragraphs b and c of subdivision  one,  and
    3  paragraph  b  of  subdivision two of such section, which shall be exempt
    4  from  such  surcharge.  Moneys  collected  from  such surcharge shall be
    5  deposited to the industry fee transfer account established  pursuant  to
    6  subdivision one of this section.
    7    [15.] 14. On and after the date of such certification, the comptroller
    8  shall  maintain  records  with  respect  to such account to reflect each
    9  unpaid transfer for the period during which it is unpaid. On  and  after
   10  such  date,  any  deposits in the industry fee transfer account shall be
   11  immediately transferred to the general fund of the state until an amount
   12  equal to the total of any  unpaid  transfers  and  accumulated  interest
   13  shall have been transferred to the general fund.
   14    15.  The  comptroller  shall,  on the first day of July succeeding the
   15  state fiscal year during which the bonds  and  notes  issued  under  the
   16  environmental quality bond act of nineteen hundred eighty-six to finance
   17  the  cleanup  of  inactive  hazardous  waste disposal sites in aggregate
   18  exceed ninety-five percent of the amount  authorized  pursuant  to  such
   19  bond  act,  estimate the total debt service of such bonds and notes. The
   20  comptroller shall also estimate the state fiscal year in which  the  sum
   21  of  the transfers required by subdivision eleven of this section and the
   22  additional credit factor as determined by paragraph (b)  of  subdivision
   23  twelve  of  this  section  exceeds  fifty  percent of the estimated debt
   24  service for such bonds and notes. The comptroller shall certify  to  the
   25  governor  and the legislature the estimated state fiscal year when fifty
   26  percent of such estimated debt service will be exceeded.
   27    16. Notwithstanding any law to the contrary, effective April first  of
   28  the  state  fiscal  year  succeeding  the state fiscal year certified in
   29  subdivision fifteen of this section, all moneys currently  deposited  in
   30  the  industry  fee transfer account of the hazardous waste remedial fund
   31  pursuant to subdivision two of this section shall be  deposited  in  the
   32  remedial  program  transfer fund.  Further, effective April first of the
   33  state fiscal year following such  certification,  subdivisions  thirteen
   34  and fourteen of this section shall be deemed repealed.
   35    17.  Notwithstanding  any  law to the contrary, and in accordance with
   36  section four of the state finance law, the comptroller is hereby author-
   37  ized and directed, upon the request of the director of  the  budget,  to
   38  transfer  moneys from the site investigation and construction account of
   39  the hazardous waste remedial fund to the hazardous waste cleanup account
   40  of the hazardous waste remedial fund.
   41    § 30. The state finance law is amended by adding a new section  97-uuu
   42  to read as follows:
   43    §  97-uuu.  Remedial  program transfer fund. 1. There is hereby estab-
   44  lished in the joint custody of the comptroller and the  commissioner  of
   45  taxation  and finance a special fund to be known as the remedial program
   46  transfer fund.
   47    2. Such fund shall consist of all of the following:
   48    (a) registration fees collected pursuant to subdivision two of section
   49  17-1009 of the environmental conservation law for deposit in this fund;
   50    (b) all license fees, fines and penalties collected pursuant to  para-
   51  graph  (b)  of  subdivision one and paragraph (a) of subdivision four of
   52  section one  hundred  seventy-four  of  the  navigation  law,  penalties
   53  collected  pursuant  to  paragraphs  (b)  and (c) of subdivision four of
   54  section  one  hundred  seventy-four-a  of  the  navigation  law,  moneys
   55  collected pursuant to section one hundred eighty-seven of the navigation

       S. 6292                            51                            A. 9292

    1  law,  and  all penalties collected pursuant to section one hundred nine-
    2  ty-two of the navigation law;
    3    (c)  all  penalties collected pursuant to paragraph (c) of subdivision
    4  one and paragraph (b) of subdivision four of section one hundred  seven-
    5  ty-four  of the navigation law effective April first of the state fiscal
    6  year succeeding the state fiscal year certified in  subdivision  fifteen
    7  of section ninety-seven-b of this article;
    8    (d)  moneys  recovered  pursuant to subdivision six of section ninety-
    9  seven-b of this article for deposit in this fund;
   10    (e) all fees paid into the fund pursuant to paragraph b of subdivision
   11  one of section 72-0201 of the environmental conservation law;
   12    (f) all moneys collected or received by the department of taxation and
   13  finance pursuant to section 27-0923 of  the  environmental  conservation
   14  law;
   15    (g)  all  moneys paid into the fund pursuant to subdivision sixteen of
   16  section ninety-seven-b of this article;
   17    (h) all fees paid into the fund pursuant to  section  72-0403  of  the
   18  environmental conservation law;
   19    (i)  all  moneys paid into the fund pursuant to section 27-1415 of the
   20  environmental conservation law;
   21    (j) other moneys credited or transferred thereto from any  other  fund
   22  or source for deposit in the fund;
   23    (k)  all  interest accrued on any such moneys deposited into the fund;
   24  and
   25    (l) all moneys paid pursuant to subdivision ten of section 27-1313  of
   26  the  environmental  conservation  law and subdivision one of section one
   27  hundred eighty-one of the navigation law.
   28    3. Notwithstanding any law to the contrary,  and  in  accordance  with
   29  section  four  of this chapter, the comptroller is hereby authorized and
   30  directed, upon the request of the director of the budget, for each state
   31  fiscal year to transfer from the general fund to  this  fund  up  to  an
   32  amount  equivalent  to the projected amount of moneys to be deposited or
   33  transferred into this fund pursuant to subdivision two of  this  section
   34  for each such state fiscal year.
   35    4.  Revenues in the remedial program transfer fund shall be kept sepa-
   36  rate and shall not be commingled with any other moneys in the custody of
   37  the comptroller. All deposits of such revenues shall, if required by the
   38  comptroller, be secured by obligations of the United States  or  of  the
   39  state  having  a  market  value equal at all times to the amount of such
   40  deposits and all banks and trust companies are authorized to give  secu-
   41  rity  for  such  deposits.  Any such revenues in such fund may, upon the
   42  discretion of the comptroller, be invested in obligations in  which  the
   43  comptroller  is authorized to invest pursuant to section ninety-eight of
   44  this article.
   45    5. Notwithstanding any law to the contrary,  and  in  accordance  with
   46  section  four  of this chapter, the comptroller is hereby authorized and
   47  directed, upon the request of the director of the  budget,  to  transfer
   48  moneys  deposited  in  the  remedial program transfer fund, and interest
   49  accrued thereon, to the environmental protection and oil  spill  compen-
   50  sation  fund  or to the hazardous waste cleanup account of the hazardous
   51  waste remedial fund.
   52    § 31. Paragraph (a) of subdivision 2 of section 179 of the  navigation
   53  law,  as amended by chapter 83 of the laws of 1995, is amended and a new
   54  subdivision 3 is added to read as follows:
   55    (a) An account which shall be  credited  with  all  license  fees  and
   56  penalties  collected  pursuant  to  paragraph (b) of subdivision one and

       S. 6292                            52                            A. 9292

    1  paragraph (a) of subdivision four of section one hundred seventy-four of
    2  this article, penalties collected pursuant to paragraph (b) of  subdivi-
    3  sion  four  of section one hundred seventy-four-a of this article, money
    4  collected  pursuant to section one hundred eighty-seven of this article,
    5  all penalties collected pursuant to section one  hundred  ninety-two  of
    6  this  article, all moneys transferred from the remedial program transfer
    7  fund pursuant to subdivision five of  section  ninety-seven-uuu  of  the
    8  state  finance  law for deposit in the New York environmental protection
    9  and spill compensation fund and registration fees collected pursuant  to
   10  subdivision  two  of  section  17-1009 of the environmental conservation
   11  law.
   12    3. Notwithstanding any general or special law  to  the  contrary,  all
   13  monies  collected pursuant to paragraph (b) of subdivision one and para-
   14  graph (a) of subdivision four of section  one  hundred  seventy-four  of
   15  this  article, penalties collected pursuant to paragraph (c) of subdivi-
   16  sion one and paragraph (b) of subdivision four of  section  one  hundred
   17  seventy-four  of  this article effective April first of the state fiscal
   18  year succeeding the state fiscal year certified in  subdivision  fifteen
   19  of  section ninety-seven-b of the state finance law, penalties collected
   20  pursuant to paragraphs (b) and (c) of subdivision four  of  section  one
   21  hundred  seventy-four-a  of  this  article,  money collected pursuant to
   22  section  one  hundred  eighty-seven  of  this  article,  all   penalties
   23  collected  pursuant  to  section one hundred ninety-two of this article,
   24  and registration fees collected pursuant to subdivision two  of  section
   25  17-1009  of the environmental conservation law shall be deposited in the
   26  remedial program transfer fund in the fiscal year beginning April first,
   27  two thousand one, and for each fiscal year thereafter.
   28    § 32. Subdivision 2 of section 17-1009 of the environmental  conserva-
   29  tion  law,  as  amended by chapter 83 of the laws of 1995, is amended to
   30  read as follows:
   31    2. All owners shall register the facility  with  the  department.  The
   32  department  is  authorized to assess a fee according to a schedule based
   33  on the size and type of facility, not to exceed [two hundred fifty] five
   34  hundred dollars per facility. Such fee shall be  paid  at  the  time  of
   35  registration  or  registration  renewal.  Registration  shall be renewed
   36  every five years or whenever title to a facility is transferred,  which-
   37  ever  occurs  first.    All  fees collected pursuant to this subdivision
   38  shall be deposited in the New York environmental and spill  compensation
   39  fund  established  pursuant  to  section one hundred seventy-nine of the
   40  navigation law[.]; provided, however, that such fees shall be  deposited
   41  in the remedial program transfer fund in the fiscal year beginning April
   42  first, two thousand one, and for each fiscal year thereafter.  The owner
   43  must  submit  with  each  application  for  registration or registration
   44  renewal, a five-year fee as follows:
   45  Combined Storage Capacity at Facility             5- Year Fee
   46  Greater than 1,000 to 2,000 gallons               $100 per facility
   47  Greater than 2,000 gallons to                     $300 per facility
   48  Less than 5,000 gallons
   49  5,000 gallons to less than 400,000 gallons        $500 per facility
   50    § 33. Subdivision 3 of section 362 of chapter 83 of the laws  of  1995
   51  amending  the  state finance law and other laws relating to bonds, notes
   52  and revenues, as amended by section 2 of part E of chapter  413  of  the
   53  laws of 1999, is amended to read as follows:
   54    3.  Sections  fifteen  through seventeen of this act shall take effect
   55  immediately and shall be deemed to have been in full force and effect on

       S. 6292                            53                            A. 9292

    1  and after April 1, 1995 [, and shall expire and be deemed repealed April
    2  1, 2004];
    3    §  34. Paragraph b of subdivision 1 of section 71-2725 of the environ-
    4  mental conservation law, as amended by chapter 60 of the laws  of  1993,
    5  is amended to read as follows:
    6    b.  All  penalties  and  fines collected pursuant to sections 71-2705,
    7  71-2721 and 71-2723 of this title shall be paid [into the  general  fund
    8  to  the credit of the state purposes account] to the credit of the reme-
    9  dial program transfer fund established by  section  ninety-seven-uuu  of
   10  the state finance law.
   11    §  35.  Paragraph b of subdivision 1, subdivision 9 and paragraph a of
   12  subdivision 11 of section 72-0201 of the environmental conservation law,
   13  paragraph b of subdivision 1 and subdivision 9 as added by chapter 38 of
   14  the laws of 1985 and paragraph a of subdivision 11 as amended by section
   15  24 of part A of chapter 58 of the laws of 1998, are amended  and  a  new
   16  paragraph e of subdivision 1 is added to read as follows:
   17    b.  Notwithstanding  any  general or special law to the contrary, one-
   18  half of all monies collected  by  the  department  pursuant  to  section
   19  72-0402  and  section  72-0502 of this article shall be deposited in the
   20  [hazardous waste] remedial program transfer fund,  created  pursuant  to
   21  section [ninety-seven-b] ninety-seven-uuu of the state finance law.
   22    e.    Notwithstanding  any general or special law to the contrary, all
   23  monies collected by the department pursuant to section 72-0403  of  this
   24  article  shall be deposited in the remedial program transfer fund estab-
   25  lished pursuant to section ninety-seven-uuu of the state finance law.
   26    9. a. In the event a penalty or  interest  is  collected  pursuant  to
   27  subdivision  five  or  six  of  this  section for fees due under section
   28  72-0402, or section 72-0502 of this article, one-half of the penalty  or
   29  interest  shall  be deposited by the department in the [hazardous waste]
   30  remedial program transfer fund.
   31    b. In the event a penalty or interest is collected pursuant to  subdi-
   32  vision five or six of this section for fees due under section 72-0403 of
   33  this article, such penalty or interest shall be deposited in the remedi-
   34  al program transfer fund.
   35    a.  All fees collected pursuant to this article [except fees collected
   36  pursuant to paragraphs b, c and d of subdivision one  of  this  section]
   37  shall  be  paid into the environmental conservation special revenue fund
   38  to the credit of the environmental  regulatory  account,  unless  herein
   39  provided otherwise.
   40    §  36.  The  environmental conservation law is amended by adding a new
   41  section 72-0403 to read as follows:
   42  § 72-0403. Remedial program surcharges.
   43    1. All generators shall submit annually to the department a fee in the
   44  amount to be determined as follows:
   45    a. Four thousand dollars for generators of equal to  or  greater  than
   46  fifteen  tons  per  year  and less than or equal to twenty-five tons per
   47  year of hazardous waste;
   48    b. Nine thousand dollars for generators of  greater  than  twenty-five
   49  tons per year and less than or equal to fifty tons per year of hazardous
   50  waste;
   51    c. Fourteen thousand dollars for generators of greater than fifty tons
   52  per year and less than or equal to seventy-five tons per year of hazard-
   53  ous waste;
   54    d.  Nineteen  thousand dollars for generators of greater than seventy-
   55  five tons per year and less than or equal to one hundred tons  per  year
   56  of hazardous waste;

       S. 6292                            54                            A. 9292

    1    e.  Twenty-four  thousand  dollars  for generators of greater than one
    2  hundred tons per year and less than or equal to five  hundred  tons  per
    3  year of hazardous waste;
    4    f. Eighty thousand dollars for generators of greater than five hundred
    5  tons  per  year  and less than or equal to one thousand tons per year of
    6  hazardous waste;
    7    g. Eighty-five thousand dollars for generators  of  greater  than  one
    8  thousand  tons  per year and less than or equal to two thousand tons per
    9  year of hazardous waste;
   10    h. One hundred ten thousand dollars for generators of greater than two
   11  thousand tons per year and less than or equal to three thousand tons per
   12  year of hazardous waste;
   13    i. One hundred thirty-five thousand dollars for generators of  greater
   14  than  three  thousand tons per year and less than or equal to five thou-
   15  sand tons per year of hazardous waste;
   16    j. One hundred sixty thousand dollars for generators of  greater  than
   17  five  thousand tons per year and less than or equal to ten thousand tons
   18  per year of hazardous waste;
   19    k. Three hundred sixty thousand dollars for generators of greater than
   20  ten thousand tons per year of hazardous waste;
   21    l. Six thousand dollars for generators of equal  to  or  greater  than
   22  fifteen  tons  per  year of hazardous wastewater, payable in addition to
   23  the fees for hazardous wastes, other than  wastewater,  as  required  by
   24  this subdivision.
   25    2. No fee shall be payable for waste resulting from services which are
   26  provided:
   27    a.  under  a  contract  with  the department, or with the department's
   28  approval and in compliance with department regulations, or  pursuant  to
   29  an  order  of the department, the United States environmental protection
   30  agency or a court, related to the cleanup or remediation of a  hazardous
   31  materials  or  hazardous  waste  spill, discharge, or surficial cleanup,
   32  pursuant to this chapter, other than section 27-1313 of this chapter  or
   33  a  removal  action pursuant to the Comprehensive Environmental Response,
   34  Compensation and Liability Act (42 U.S.C.  9601 et seq.); or
   35    b. under a contract for, or with  the  department's  approval  and  in
   36  compliance with department regulations for, the cleanup and removal of a
   37  petroleum  spill  or discharge, pursuant to subdivision seven of section
   38  one hundred seventy-six of the navigation law; or
   39    c. under the order of a court, the department  or  the  department  of
   40  health,  or the United States environmental protection agency related to
   41  an inactive hazardous waste disposal site pursuant to section 27-1313 of
   42  this chapter, section  thirteen  hundred  eighty-nine-b  of  the  public
   43  health  law,  or  the Comprehensive Environmental Response, Compensation
   44  and Liability Act (42 U.S.C. 9601 et seq.); or
   45    d. voluntarily and without expectation  of  monetary  compensation  in
   46  accordance with subdivision one of section 27-1321 of this chapter; or
   47    e. under permit or order requiring corrective action pursuant to title
   48  nine  of  article twenty-seven of this chapter or the Resource Conserva-
   49  tion and Recovery Act (42 U.S.C. 6901 et seq.).
   50    § 37. Paragraph b of subdivision 4 of section 27-0923 of the  environ-
   51  mental  conservation law, as added by chapter 38 of the laws of 1985, is
   52  amended to read as follows:
   53    b. All moneys collected or received by the department of taxation  and
   54  finance  pursuant to this section shall be deposited daily to the credit
   55  of the comptroller with such responsible banks, banking houses or  trust
   56  companies  as  may be designated by the comptroller. Such deposits shall

       S. 6292                            55                            A. 9292

    1  be kept separate and apart from all other moneys in  the  possession  of
    2  the  comptroller.  The  comptroller shall require adequate security from
    3  all such depositories. Of the revenues collected under this section, the
    4  comptroller  shall  retain in his hands such amounts as the commissioner
    5  of taxation and finance may determine to be necessary for refunds  under
    6  this  section  and  the comptroller shall pay any refunds to which those
    7  liable for special assessments shall be entitled under the provisions of
    8  this section. The comptroller, after reserving the amount  to  pay  such
    9  refunds,  shall,  on  or  before  the  tenth  day of each month, pay all
   10  special assessments, interest and penalties collected under this section
   11  and remaining to his credit in  such  banks,  banking  houses  or  trust
   12  companies  at  the  close  of  business on the last day of the preceding
   13  month into the [hazardous waste] remedial program transfer fund  created
   14  pursuant  to  section  [ninety-seven-b]  ninety-seven-uuu  of  the state
   15  finance law. Within thirty days after each quarterly reporting date, the
   16  comptroller shall certify the amount of special assessments  under  this
   17  section  deposited  in  the  [hazardous waste] remedial program transfer
   18  fund during the preceding quarter and the  cumulative  amount  collected
   19  since  the  start  of  the  current calendar year, and shall submit such
   20  certification to the governor and the chairman  of  the  senate  finance
   21  committee and the chairman of the assembly ways and means committee.
   22    § 38. Intentionally omitted.
   23    §  39.  The  tax  law is amended by adding a new section 21 to read as
   24  follows:
   25    § 21. Brownfield redevelopment tax credit. (a)  Allowance  of  credit.
   26  (1) General. A taxpayer subject to tax under article nine, nine-A, twen-
   27  ty-two,  thirty-two  or  thirty-three of this chapter shall be allowed a
   28  credit against such tax, pursuant to the provisions referenced in subdi-
   29  vision (e) of this section.  Such credit shall be allowed  with  respect
   30  to  a qualified site, as such term is defined in paragraph one of subdi-
   31  vision (b) of this section. The amount of the credit shall be the sum of
   32  the credit components specified in paragraphs  two  and  three  of  this
   33  subdivision.
   34    (2)  Site  preparation  credit  component. The site preparation credit
   35  component shall be equal to the applicable percentage of the site prepa-
   36  ration costs paid or incurred by the taxpayer with respect to  a  quali-
   37  fied  site.  The credit component amount so determined with respect to a
   38  site's qualification for a remediation certificate shall be allowed  for
   39  the  taxable year in which the effective date of the remediation certif-
   40  icate occurs.  The credit component amount determined  other  than  with
   41  respect  to  such qualification shall be allowed for the taxable year in
   42  which the improvement to which the applicable costs apply is  placed  in
   43  service.
   44    (3)  Tangible  property credit component. The tangible property credit
   45  component shall be equal to the applicable percentage  of  the  cost  or
   46  other basis for federal income tax purposes of tangible personal proper-
   47  ty  and  other  tangible  property,  including  buildings and structural
   48  components of buildings, which constitute qualified  tangible  property.
   49  The credit component amount so determined shall be allowed for the taxa-
   50  ble  year in which such qualified tangible property is placed in service
   51  on a qualified site with respect to which a remediation certificate  has
   52  been  issued  to  the  taxpayer.  The tangible property credit component
   53  shall be allowed with respect to property leased to a second party  only
   54  if  such  second  party  is  either  (i) not a party responsible for the
   55  disposal of hazardous waste or the discharge of petroleum  at  the  site
   56  according to applicable principles of statutory or common law liability,

       S. 6292                            56                            A. 9292

    1  or (ii) a party responsible according to applicable principles of statu-
    2  tory  or  common  law  liability if such party's liability arises solely
    3  from operation of the site subsequent to the disposal of hazardous waste
    4  or  the  discharge of petroleum, and is so certified by the commissioner
    5  of environmental conservation at the request of the  taxpayer,  pursuant
    6  to section 27-1413 of the environmental conservation law.  Notwithstand-
    7  ing any other provision of law to the contrary, in the case of allowance
    8  of  credit  under  this section to such a lessor, the commissioner shall
    9  have the authority to  reveal  to  such  lessor  any  information,  with
   10  respect  to  the issue of qualified use of property by the lessee, which
   11  is the basis for the denial in whole or in part, or for  the  recapture,
   12  of the credit claimed by such lessor.
   13    (4)  Applicable percentage.   For purposes of paragraphs two and three
   14  of this subdivision, the applicable percentage shall be ten  percent  in
   15  the  case  of  credits claimed under article nine, nine-A, thirty-two or
   16  thirty-three, and eight percent in the case  of  credits  claimed  under
   17  article  twenty-two,  of this chapter. Provided, however, as provided in
   18  section 27-1413 of the environmental conservation law,  if  the  remedi-
   19  ation certificate indicates that the soil on the qualified site has been
   20  remediated  to  soil category 1 as that term is described in paragraph a
   21  of subdivision three of section 27-1316 of the  environmental  conserva-
   22  tion  law, the applicable percentage shall be twelve percent in the case
   23  of credits claimed under article nine,  nine-A,  thirty-two  or  thirty-
   24  three,  and  ten  percent  in  the case of credits claimed under article
   25  twenty-two, of this chapter.
   26    (b) Definitions. As used in this section, the  following  terms  shall
   27  have the following meanings:
   28    (1) Qualified site. A "qualified site" is a site with respect to which
   29  a remediation certificate has been issued to the taxpayer by the commis-
   30  sioner  of environmental conservation pursuant to section 27-1413 of the
   31  environmental conservation law.
   32    (2) Site preparation costs. The term "site  preparation  costs"  shall
   33  mean all amounts properly chargeable to capital account, under generally
   34  accepted  accounting  principles,  (i)  which  are  paid  or incurred in
   35  connection with a site's qualification for  a  remediation  certificate,
   36  and (ii) all other site preparation costs paid or incurred in connection
   37  with preparing a site for the erection of a building or a component of a
   38  building, or otherwise to establish a site as usable for its industrial,
   39  commercial  (including  the  commercial development of residential hous-
   40  ing), recreational or conservation purposes.    Site  preparation  costs
   41  shall include, but not be limited to, the costs of excavation, temporary
   42  electric wiring, scaffolding, demolition costs, and the costs of fencing
   43  and  security  facilities.  Site preparation costs shall not include the
   44  cost of acquiring the site and shall not include amounts included in the
   45  cost or other basis for federal income tax purposes of qualified  tangi-
   46  ble property, as described in paragraph three of this subdivision.
   47    (3)  Qualified  tangible  property.  "Qualified  tangible property" is
   48  property which:
   49    (A) is depreciable pursuant to section one hundred sixty- seven of the
   50  internal revenue code,
   51    (B) has a useful life of four years or more,
   52    (C) has been acquired by purchase as defined in  section  one  hundred
   53  seventy-nine(d) of the internal revenue code,
   54    (D) has a situs on a qualified site in this state,

       S. 6292                            57                            A. 9292

    1    (E)  is  principally  used by the taxpayer for industrial, commercial,
    2  recreational  or  environmental  conservation  purposes  (including  the
    3  commercial development of residential housing), and
    4    (F)  is placed in service within three years following the issuance of
    5  a remediation certificate with respect to such qualified site.
    6    (4) Remediation certificate. The term "remediation certificate"  shall
    7  refer  to  the certificate so denominated which is issued by the commis-
    8  sioner of environmental conservation pursuant to section 27-1413 of  the
    9  environmental conservation law.
   10    (5)  Corporate  new business. A "corporate new business" shall include
   11  any corporation, except a corporation:
   12    (A) over fifty percent of the number of shares of stock of which enti-
   13  tling the holders thereof to vote for the election of directors or trus-
   14  tees is owned or controlled, either directly or indirectly, by a taxpay-
   15  er  subject  to  tax  under  article   nine-A;   section   one   hundred
   16  eighty-three,  one  hundred  eighty-four, one hundred eighty-five or one
   17  hundred eighty-six of article nine; article thirty-two  or  thirty-three
   18  of this chapter; or
   19    (B)  which is substantially similar in operation and in ownership to a
   20  business entity (or entities)  taxable,  or  previously  taxable,  under
   21  article  nine-A;  section  one hundred eighty-three, one hundred eighty-
   22  four, one hundred eighty-five or one hundred eighty-six of article nine;
   23  article thirty-two or thirty-three of this chapter; article twenty-three
   24  of this chapter or which would have been subject to tax under such arti-
   25  cle twenty-three (as such article was in effect on January first,  nine-
   26  teen  hundred  eighty)  or  the  income (or losses) of which is (or was)
   27  includable under article twenty-two of this chapter whereby  the  intent
   28  and purpose of this paragraph and the applicable provision of this chap-
   29  ter relating to refunding of credit to new business would be evaded; or
   30    (C)  which  has  been subject to tax under the article or section with
   31  respect to which the credit provided for under this section  is  claimed
   32  for  more  than four taxable years (excluding short taxable years) prior
   33  to the taxable year during which the taxpayer first becomes eligible for
   34  such credit.
   35    (c) Property which qualifies for the credit provided  for  under  this
   36  section  and also for a credit provided for (1) under either subdivision
   37  twelve or subdivision twelve-B of section two hundred ten of this  chap-
   38  ter,  or  both,  (2)  subsection  (a)  or  subsection (j) of section six
   39  hundred six of this chapter, or both, or (3)  the  credit  provided  for
   40  under subsection (i) of section fourteen hundred fifty-six of this chap-
   41  ter,  may  be  the  basis  for either the credit provided for under this
   42  section or one of the credits enumerated in paragraph one, two or  three
   43  of this subdivision, but not both.
   44    (d)(1)  With respect to qualified tangible property which is deprecia-
   45  ble pursuant to section one hundred sixty-seven of the internal  revenue
   46  code  but is not subject to the provisions of section one hundred sixty-
   47  eight of such code and which is disposed of or ceases to be in qualified
   48  use prior to the end of the taxable year in which the credit  is  to  be
   49  taken,  the  amount  of  the  credit shall be that portion of the credit
   50  provided for in this subdivision which represents the  ratio  which  the
   51  months  of  qualified use bear to the months of useful life. If property
   52  on which credit has been taken is disposed of or ceases to be in  quali-
   53  fied use prior to the end of its useful life, the difference between the
   54  credit taken and the credit allowed for actual use must be added back in
   55  the year of disposition. Provided, however, if such property is disposed
   56  of  or  ceases to be in qualified use after it has been in qualified use

       S. 6292                            58                            A. 9292

    1  for more than twelve consecutive years, it shall not be necessary to add
    2  back the credit as provided in this  paragraph.  The  amount  of  credit
    3  allowed  for  actual use shall be determined by multiplying the original
    4  credit by the ratio which the months of qualified use bear to the months
    5  of  useful life. For purposes of this paragraph, useful life of property
    6  shall be the same as the taxpayer uses for  depreciation  purposes  when
    7  computing his federal income tax liability.
    8    (2)  Except  with  respect to that property to which paragraph four of
    9  this subdivision applies, with respect to  qualified  tangible  property
   10  which  is  three-year  property, as defined in subsection (e) of section
   11  one hundred sixty-eight of the internal revenue code, which is  disposed
   12  of or ceases to be in qualified use prior to the end of the taxable year
   13  in  which  the  credit is to be taken, the amount of the credit shall be
   14  that portion of the credit provided for in this section which represents
   15  the ratio which the months of qualified use bear to thirty-six. If prop-
   16  erty on which credit has been taken is disposed of or ceases  to  be  in
   17  qualified  use  prior  to  the  end of thirty-six months, the difference
   18  between the credit taken and the credit allowed for actual use  must  be
   19  added  back in the year of disposition. The amount of credit allowed for
   20  actual use shall be determined by multiplying the original credit by the
   21  ratio which the months of qualified use bear to thirty-six.
   22    (3) Except with respect to that property to which  paragraph  four  of
   23  this  subdivision  applies,  with respect to qualified tangible property
   24  which is subject to the provisions of section one hundred sixty-eight of
   25  the internal revenue code other than three-year property as  defined  in
   26  subsection (e) of such section one hundred sixty-eight which is disposed
   27  of or ceases to be in qualified use prior to the end of the taxable year
   28  in  which  the  credit is to be taken, the amount of the credit shall be
   29  that portion of the credit provided for in this section which represents
   30  the ratio which the months of qualified use bear to sixty.  If  property
   31  on  which credit has been taken is disposed of or ceases to be in quali-
   32  fied use prior to the end of sixty months, the  difference  between  the
   33  credit taken and the credit allowed for actual use must be added back in
   34  the  year  of  disposition.  The amount of credit allowed for actual use
   35  shall be determined by multiplying the  original  credit  by  the  ratio
   36  which the months of qualified use bear to sixty.
   37    (4)  With  respect to any qualified tangible property to which section
   38  one hundred sixty-eight of the internal revenue code applies, which is a
   39  building or a structural component of a building and which  is  disposed
   40  of or ceases to be in qualified use prior to the end of the taxable year
   41  in  which  the  credit is to be taken, the amount of the credit shall be
   42  that portion of the credit provided for in this section which represents
   43  the ratio which the months of qualified use bear to the total number  of
   44  months  over which the taxpayer chooses to deduct the property under the
   45  internal revenue code. If property on which credit  has  been  taken  is
   46  disposed  of  or  ceases  to be in qualified use prior to the end of the
   47  period over which the taxpayer chooses to deduct the property under  the
   48  internal  revenue  code, the difference between the credit taken and the
   49  credit allowed for actual use must be added back in the year of disposi-
   50  tion. Provided, however, if such property is disposed of or ceases to be
   51  in qualified use after it has been in qualified use for more than twelve
   52  consecutive years, it shall not be necessary to add back the  credit  as
   53  provided  in this paragraph. The amount of credit allowed for actual use
   54  shall be determined by multiplying the  original  credit  by  the  ratio
   55  which  the  months  of  qualified use bear to the total number of months

       S. 6292                            59                            A. 9292

    1  over which the taxpayer chooses to deduct the property under the  inter-
    2  nal revenue code.
    3    (e)  Cross-references.  For  application of the credit provided for in
    4  this section, see the following provisions of this chapter:
    5    (1) Article 9: Section 187-f
    6    (2) Article 9-A: Section 210, subdivision (33)
    7    (3) Article 22: Section 606, subdivisions (i) and (aa)
    8    (4) Article 32: Section 1456, subdivision (k)
    9    (5) Article 33: Section 1511, subdivision (q).
   10    § 40. The tax law is amended by adding a new section 187-f to read  as
   11  follows:
   12    §  187-f. Brownfield redevelopment tax credit. 1. Allowance of credit.
   13  A taxpayer shall be allowed a credit, to  be  computed  as  provided  in
   14  section  twenty-one  of  this  chapter,  against  the  taxes  imposed by
   15  sections one hundred eighty-three, one hundred eighty-four, one  hundred
   16  eighty-five and one hundred eighty-six of this article. Provided, howev-
   17  er,  that the amount of such credit allowable against the tax imposed by
   18  section one hundred eighty-four of this article shall be the  excess  of
   19  the  amount of such credit over the amount of any credit allowed by this
   20  section against the tax imposed by section one hundred  eighty-three  of
   21  this article.
   22    2.  Carryovers.  In  no  event  shall the credit under this section be
   23  allowed in an amount which will reduce the tax payable to less than  the
   24  applicable  minimum  tax  fixed by section one hundred eighty-three, one
   25  hundred eighty-five or one  hundred  eighty-six  of  this  article.  If,
   26  however, the amount of credit allowable under this section for any taxa-
   27  ble year reduces the tax to such amount, any amount of credit not deduc-
   28  tible  in such taxable year may be carried over to the following year or
   29  years and may be deducted from the  taxpayer's  tax  for  such  year  or
   30  years. In lieu of such carryover, any such taxpayer which qualifies as a
   31  corporate  new  business  under  paragraph  five  of  subdivision (b) of
   32  section twenty-one of this chapter may elect,  on  its  report  for  its
   33  taxable  year  with  respect  to  which such credit is allowed, to treat
   34  fifty percent of the amount of such carryover as an overpayment  of  tax
   35  to  be credited or refunded in accordance with the provisions of section
   36  ten  hundred  eighty-six  of  this  chapter.  Provided,   however,   the
   37  provisions of subsection (c) of section ten hundred eighty-eight of this
   38  chapter notwithstanding, no interest shall be paid thereon.
   39    §  41.  Section 210 of the tax law is amended by adding a new subdivi-
   40  sion 33 to read as follows:
   41    33. Brownfield redevelopment tax credit. (a) Allowance  of  credit.  A
   42  taxpayer  shall  be  allowed  a  credit,  to  be computed as provided in
   43  section twenty-one of this chapter, against  the  tax  imposed  by  this
   44  article.
   45    (b) Carryovers. The credit and carryovers of such credit allowed under
   46  this  subdivision  for  any  taxable  year  shall not, in the aggregate,
   47  reduce the tax due for such year to less than the higher of the  amounts
   48  prescribed in paragraphs (c) and (d) of subdivision one of this section.
   49  However,  if the amount of credit or carryovers of such credit, or both,
   50  allowed under this subdivision for any taxable year reduces the  tax  to
   51  such  amount, any amount of credit or carryovers of such credit thus not
   52  deductible in such taxable year may be carried  over  to  the  following
   53  year  or  years and may be deducted from the tax for such year or years.
   54  In lieu of such carryover, any such taxpayer which qualifies as a corpo-
   55  rate new business under paragraph six  of  subdivision  (b)  of  section
   56  twenty-one of this chapter may elect, on its report for its taxable year

       S. 6292                            60                            A. 9292

    1  with  respect to which such credit is allowed, to treat fifty percent of
    2  the amount of such carryover as an overpayment of tax to be credited  or
    3  refunded in accordance with the provisions of section ten hundred eight-
    4  y-six  of  this chapter. Provided, however, the provisions of subsection
    5  (c) of section ten hundred eighty-eight of this chapter notwithstanding,
    6  no interest shall be paid thereon.
    7    § 42. Paragraph 1 of subsection (i) of section 606 of the tax law,  as
    8  amended  by  section  1 of part I of chapter 407 of the laws of 1999, is
    9  amended to read as follows:
   10    (1) For purposes of determining the application under this section  of
   11  the  credit  provisions enumerated in the following table, a shareholder
   12  of a New York S corporation:
   13    (A) shall be treated as the taxpayer with respect to his  or  her  pro
   14  rata  share of the corresponding credit base of such corporation, deter-
   15  mined for the corporation's taxable  year  ending  with  or  within  the
   16  shareholder's taxable year and
   17    (B)  shall  be  treated as the owner of a new business with respect to
   18  such share if the corporation qualifies as a new  business  pursuant  to
   19  paragraph  (j)  of subdivision twelve of section two hundred ten of this
   20  chapter, unless the shareholder has  previously  received  a  refund  by
   21  reason of the application of this subparagraph, or this subsection as it
   22  was  in effect for taxable years beginning before nineteen hundred nine-
   23  ty-four.

   24                                          The corporation's
   25  With respect to the                     credit base under
   26  following credit                        section two hundred ten
   27  under this section:                     or section fourteen
   28                                          hundred fifty-six of this
   29                                          chapter is:
   30  Investment tax credit                   Investment credit base
   31  under subsection (a)                    or qualified
   32                                          rehabilitation
   33                                          expenditures under
   34                                          subdivision twelve of
   35                                          section two hundred ten
   36  Economic development                    Cost or other basis
   37  zone investment tax credit              under subdivision
   38  under subsection (j)                    twelve-B
   39                                          of section two hundred
   40                                          ten
   41  Economic development                    Eligible wages under
   42  zone wage tax credit                    subdivision nineteen of
   43  under subsection (k)                    section two hundred ten
   44                                          or subsection (e) of
   45                                          section fourteen hundred
   46                                          fifty-six
   47  Economic development zone               Qualified investments
   48  capital tax credit                      and contributions under
   49  under subsection (1)                    subdivision twenty of
   50                                          section two hundred ten
   51                                          or subsection (d) of
   52                                          section fourteen hundred
   53                                          fifty-six
   54  Agricultural property tax               Allowable school
   55  credit under subsection (n)             district property taxes under

       S. 6292                            61                            A. 9292

    1                                          subdivision twenty-two of
    2                                          section two hundred ten
    3  Credit for employment                   Qualified first-year wages or
    4  of persons with dis-                    qualified second-year wages
    5  abilities under                         under subdivision
    6  subsection (o)                          twenty-three of section
    7                                          two hundred ten
    8                                          or subsection (f)
    9                                          of section fourteen
   10                                          hundred fifty-six
   11  Employment incentive                    Applicable investment credit
   12  credit under subsec-                    base under subdivision
   13  tion (a-1)                              twelve-D
   14  Economic develop-                       Applicable investment
   15  ment zone employment                    credit under sub-
   16  incentive credit under                  division twelve-C
   17  subsection (j-1)
   18  Alternative fuels credit                Cost under subdivision
   19  under subsection (p)                    twenty-four
   20  Qualified emerging                      Applicable credit base
   21  technology company                      under subdivision twelve-E
   22  employment credit                       of section two hundred ten
   23  under subsection (q)
   24  Qualified emerging                      Qualified investments under
   25  technology company                      subdivision twelve-F of
   26  capital tax credit                      section two hundred ten
   27  under subsection (r)
   28  Brownfield redevelopment                Applicable cost
   29  credit under subsection (aa)            or other basis
   30                                          under subdivision thirty-three
   31                                          of section two hundred ten
   32                                          or subsection (o) of section
   33                                          fourteen hundred fifty-six
   34    §  42-a.  Paragraph 1 of subsection (i) of section 606 of the tax law,
   35  as amended by section 2 of part J of chapter 407 of the laws of 1999, is
   36  amended to read as follows:
   37     (1) For purposes of determining the application under this section of
   38  the credit provisions enumerated in the following table,  a  shareholder
   39  of a New York S corporation:
   40    (A)  shall  be  treated as the taxpayer with respect to his or her pro
   41  rata share of the corresponding credit base of such corporation,  deter-
   42  mined  for  the  corporation's  taxable  year  ending with or within the
   43  shareholder's taxable year and
   44    (B) shall be treated as the owner of a new business  with  respect  to
   45  such  share  if  the corporation qualifies as a new business pursuant to
   46  paragraph (j) of subdivision twelve of section two hundred ten  of  this
   47  chapter,  unless  the  shareholder  has  previously received a refund by
   48  reason of the application of this subparagraph, or this subsection as it
   49  was in effect for taxable years beginning before nineteen hundred  nine-
   50  ty-four.

   51                                          The corporation's
   52  With respect to the                     credit base under
   53  following credit                        section two hundred ten
   54  under this section:                     or section fourteen
   55                                          hundred fifty-six of this

       S. 6292                            62                            A. 9292

    1                                          chapter is:

    2  Investment tax credit                   Investment credit base
    3  under subsection (a)                    or qualified
    4                                          rehabilitation
    5                                          expenditures under
    6                                          subdivision twelve of
    7                                          section two hundred ten

    8  Economic development                    Cost or other basis
    9  zone investment tax credit              under subdivision
   10  under subsection (j)                    twelve-B
   11                                          of section two hundred
   12                                          ten

   13  Economic development                    Eligible wages under
   14  zone wage tax credit                    subdivision nineteen of
   15  under subsection (k)                    section two hundred ten
   16                                          or subsection (e) of
   17                                          section fourteen hundred
   18                                          fifty-six

   19  Economic development zone               Qualified investments
   20  capital tax credit                      and contributions under
   21  under subsection (1)                    subdivision twenty of
   22                                          section two hundred ten
   23                                          or subsection (d) of
   24                                          section fourteen hundred
   25                                          fifty-six

   26  Agricultural property tax               Allowable school
   27  credit under subsection (n)             district property taxes under
   28                                          subdivision twenty-two of
   29                                          section two hundred ten

   30  Credit for employment                   Qualified first-year wages or
   31  of persons with dis-                    qualified second-year wages
   32  abilities under                         under subdivision
   33  subsection (o)                          twenty-three of section
   34                                          two hundred ten
   35                                          or subsection (f)
   36                                          of section fourteen
   37                                          hundred fifty-six

   38  Employment incentive                    Applicable investment credit
   39  credit under subsec-                    base under subdivision
   40  tion (a-1)                              twelve-D

   41  Economic develop-                       Applicable investment
   42  ment zone employment                    credit under sub-
   43  incentive credit under                  division twelve-C
   44  subsection (j-1)

   45  Alternative fuels credit                Cost under subdivision
   46  under subsection (p)                    twenty-four

       S. 6292                            63                            A. 9292

    1  Qualified emerging                      Applicable credit base
    2  technology company                      under subdivision twelve-E
    3  employment credit                       of section two hundred ten
    4  under subsection (q)

    5  Qualified emerging                      Qualified investments under
    6  technology company                      subdivision twelve-F of
    7  capital tax credit                      section two hundred ten
    8  under subsection (r)

    9  Credit for purchase of an               Cost of an automated
   10  automated external defibrillator        external defibrillator under
   11  under subsection (s)                    subdivision twenty-five of
   12                                          section two hundred ten
   13                                          or subsection (j) of section
   14                                          fourteen hundred fifty-six
   15  Brownfield redevelopment                Applicable cost
   16  credit under subsection (aa)            or other basis
   17                                          under subdivision thirty-three
   18                                          of section two hundred ten
   19                                          or subsection (o) of section
   20                                          fourteen hundred fifty-six
   21    § 43. Section 606 of the tax law is amended by adding a new subsection
   22  (aa) to read as follows:
   23    (aa)  Brownfield  redevelopment tax credit. (1) Allowance of credit. A
   24  taxpayer shall be allowed a  credit,  to  be  computed  as  provided  in
   25  section  twenty-one  of  this  chapter,  against the tax imposed by this
   26  article.
   27    (2) Carryovers. If the amount of the credit  and  carryovers  of  such
   28  credit  allowed  under this subsection for any taxable year shall exceed
   29  the taxpayer's tax for such year, the excess, as well as any part of the
   30  credit or carryovers of such credit, or both, may be carried over to the
   31  following year or years and may be deducted from the taxpayer's tax  for
   32  such year or years. In lieu of carrying over any such excess, a taxpayer
   33  who  qualifies  as  an owner of a new business for purposes of paragraph
   34  ten of subsection (a) of this section may, at his option, receive  fifty
   35  percent  of  such  excess  as a refund. Any refund paid pursuant to this
   36  paragraph shall be deemed to be a refund of an  overpayment  of  tax  as
   37  provided  in  section  six hundred eighty-six of this article, provided,
   38  however, that no interest shall be paid thereon. For  purposes  of  this
   39  section,  in  reading  such  paragraph  ten,  references  therein to the
   40  investment tax credit provided for under subsection (a) of this  section
   41  shall  be  deemed  to  refer  to  the  credit  provided  for  under this
   42  subsection, and shall be read accordingly.
   43    § 44. Subsection (c) of section 683 of  the  tax  law  is  amended  by
   44  adding a new paragraph 10 to read as follows:
   45    (10)  Reports  concerning  a  remediation certificate. If a taxpayer's
   46  remediation certificate issued pursuant to section 27-1413 of the  envi-
   47  ronmental  conservation  law  is  modified or revoked by a determination
   48  issued pursuant to subdivision six of section 27-1413  of  the  environ-
   49  mental  conservation  law, any tax liability generated by reason of such
   50  modification or revocation may be assessed within one  year  after  such
   51  determination  is  final and is no longer subject to judicial review and
   52  the taxpayer shall be allowed to offset against such tax  liability  the
   53  amount of any of the credits provided for under subsection (a) or (j) of
   54  section  six  hundred  six of this article which the taxpayer would have

       S. 6292                            64                            A. 9292

    1  been allowed with respect to amounts which were the basis for the credit
    2  provided for under such section twenty-one which is the subject of  such
    3  assessment.
    4    §  45.  Subsection  (a)  of  section 687 of the tax law, as amended by
    5  chapter 309 of the laws of 1996, is amended to read as follows:
    6    (a) General.--Claim for credit or refund of an overpayment  of  income
    7  tax  shall be filed by the taxpayer within (i) three years from the time
    8  the return was filed [or], (ii) two years from  the  time  the  tax  was
    9  paid,  or (iii) in the case of any overpayment arising from an erroneous
   10  denial by the department of environmental conservation of a  remediation
   11  certificate  pursuant  to section 27-1413 of the environmental conserva-
   12  tion law, two years from the time a final determination  to  the  effect
   13  that such denial was erroneous is made and is no longer subject to judi-
   14  cial review, whichever of such periods expires the [later] latest, or if
   15  no return was filed, within two years from the time the tax was paid. If
   16  the claim is filed within the three year period, the amount of the cred-
   17  it  or  refund  shall  not exceed the portion of the tax paid within the
   18  three years immediately preceding the filing of the claim plus the peri-
   19  od of any extension of time for filing the return unless such  claim  is
   20  for  a credit or a portion thereof provided pursuant to paragraph two or
   21  four of subsection (c), paragraph two  or  four  of  subsection  (d)  or
   22  subsection (e) of section six hundred six of this chapter.  If the claim
   23  is  not  filed within the three year period, but is filed within the two
   24  year period, the amount of the credit or refund  shall  not  exceed  the
   25  portion  of  the tax paid during the two years immediately preceding the
   26  filing of the claim unless such claim is for a credit or a portion ther-
   27  eof provided pursuant to paragraph two or four of subsection (c),  para-
   28  graph  two  or  four  of subsection (d) or subsection (e) of section six
   29  hundred six of this chapter.   In the case of  a  claim  for  credit  or
   30  refund  filed  within  the  period prescribed in paragraph (iii) of this
   31  subsection, the amount of the credit or refund may exceed the portion of
   32  the tax paid within the applicable period specified  in  the  two  imme-
   33  diately preceding sentences, but only to the extent of the amount of the
   34  overpayment  attributable  to  the  denial  described  in such paragraph
   35  (iii). Except as otherwise provided in this  section,  if  no  claim  is
   36  filed,  the  amount  of  a  credit or refund shall not exceed the amount
   37  which would be allowable if a claim had been filed on the date the cred-
   38  it or refund is allowed.
   39    § 46. Subsection (c) of section 1083 of the  tax  law  is  amended  by
   40  adding a new paragraph 10  to read as follows:
   41    (10)  Reports  concerning  a  remediation certificate. If a taxpayer's
   42  remediation certificate issued pursuant to section 27-1413 of the  envi-
   43  ronmental  conservation  law  is  modified or revoked by a determination
   44  issued pursuant to subdivision six of section 27-1413  of  the  environ-
   45  mental  conservation  law, any tax liability generated by reason of such
   46  modification or revocation may be assessed within one  year  after  such
   47  determination  is  final and is no longer subject to judicial review and
   48  the taxpayer shall be allowed to offset against such tax  liability  the
   49  amount  of  any  of the credits provided for under subdivision twelve or
   50  twelve-B of section two hundred ten, or subsection (i) of section  four-
   51  teen  hundred  fifty-six  of  this chapter which the taxpayer would have
   52  been allowed with respect to amounts which were the basis for the credit
   53  provided for under such section twenty-one which is the subject of  such
   54  assessment.
   55    §  47.  Subsection  (a)  of section 1087 of the tax law, as amended by
   56  chapter 55 of the laws of 1982, is amended  to read as follows:

       S. 6292                            65                            A. 9292

    1    (a) General.--Claim for credit or refund  of  an  overpayment  of  tax
    2  under  article nine[, nine-a, nine-b or nine-c] or nine-A shall be filed
    3  by the taxpayer within (i) three years from  the  time  the  return  was
    4  filed  [or],  (ii)  two years from the time the tax was paid or (iii) in
    5  the  case  of  any  overpayment  arising from an erroneous denial by the
    6  department of environmental conservation of  a  remediation  certificate
    7  pursuant  to  section 27-1413 of the environmental conservation law, two
    8  years from the time a final determination to the effect that such denial
    9  was erroneous is made and is  no  longer  subject  to  judicial  review,
   10  whichever  of  such  periods expires the [later] latest, or if no return
   11  was filed, within two years from the time the tax  was  paid.    If  the
   12  claim is filed within the three year period, the amount of the credit or
   13  refund  shall  not  exceed  the portion of the tax paid within the three
   14  years immediately preceding the filing of the claim plus the  period  of
   15  any  extension  of time for filing the return. If the claim is not filed
   16  within the three year period, but is filed within the two  year  period,
   17  the  amount  of the credit or refund shall not exceed the portion of the
   18  tax paid during the two years immediately preceding the  filing  of  the
   19  claim.    In  the  case of a claim for credit or refund filed within the
   20  period prescribed in paragraph (iii) of this subsection, the  amount  of
   21  the  credit  or refund may exceed the portion of the tax paid within the
   22  applicable period specified in the two immediately preceding  sentences,
   23  but  only to the extent of the amount of the overpayment attributable to
   24  the denial described in such paragraph (iii) of this subsection.  Except
   25  as  otherwise provided in this section, if no claim is filed, the amount
   26  of a credit or refund shall not exceed the amount which would be  allow-
   27  able  if  a  claim  had  been  filed on the date the credit or refund is
   28  allowed. For special restriction in a proceeding on a claim  for  refund
   29  of  tax  paid  pursuant  to  an assessment made as a result of (i) a net
   30  operating loss carryback or capital loss carryback, or (ii) an  increase
   31  or decrease in federal taxable income or federal tax, or (iii) a federal
   32  change  or  correction or renegotiation, or computation or recomputation
   33  of tax, which is treated in the same manner as if it were  a  deficiency
   34  for  federal income tax purposes, see paragraph (7) of subsection (c) of
   35  section one thousand eighty-three.
   36    § 48. Section 1456  of  the  tax  law  is  amended  by  adding  a  new
   37  subsection (o) to read as follows:
   38    (o)  Brownfield  redevelopment  tax credit. (1) Allowance of credit. A
   39  taxpayer shall be allowed a  credit,  to  be  computed  as  provided  in
   40  section  twenty-one  of  this  chapter,  against the tax imposed by this
   41  article.
   42    (2) Carryover. The credit and carryovers of such credit allowed  under
   43  this subsection for any taxable year shall not, in the aggregate, reduce
   44  the  tax  due  for  such  year  to  less  than  the minimum tax fixed by
   45  subsection (b) of section fourteen hundred fifty-five of  this  article.
   46  However,  if the amount of credit or carryovers of such credit, or both,
   47  allowed under this subsection for any taxable year reduces  the  tax  to
   48  such amount, then any amount of credit or carryovers of such credit thus
   49  not deductible in such taxable year may be carried over to the following
   50  year  or years and may be deducted from the taxpayer's tax for such year
   51  or years. In lieu of such carryover, any such taxpayer  which  qualifies
   52  as  a  corporate  new business under paragraph six of subdivision (b) of
   53  section twenty-one of this chapter may elect,  on  its  report  for  its
   54  taxable  year  with  respect  to  which such credit is allowed, to treat
   55  fifty percent of the amount of such carryover as an overpayment  of  tax
   56  to  be credited or refunded in accordance with the provisions of section

       S. 6292                            66                            A. 9292

    1  ten  hundred  eighty-six  of  this  chapter.  Provided,   however,   the
    2  provisions of subsection (c) of section ten hundred eighty-eight of this
    3  chapter notwithstanding, no interest shall be paid thereon.
    4    §  49. Section 1511 of the tax law is amended by adding a new subdivi-
    5  sion (q) to read as follows:
    6    (q) Brownfield redevelopment tax credit. (1) Allowance  of  credit.  A
    7  taxpayer  shall  be  allowed  a  credit,  to  be computed as provided in
    8  section twenty-one of this chapter, against the taxes  imposed  by  this
    9  article.
   10    (2)  Carryover. The credit and carryovers of such credit allowed under
   11  this subdivision for any taxable  year  shall  not,  in  the  aggregate,
   12  reduce the tax due for such year to less than the minimum fixed by para-
   13  graph  four  of  subdivision  (a) of section fifteen hundred two of this
   14  article. However, if the amount of credit or carryovers of such  credit,
   15  or both, allowed under this subdivision for any taxable year reduces the
   16  tax  to  such  amount,  then  any amount of credit or carryovers of such
   17  credit thus not deductible in such taxable year may be carried  over  to
   18  the  following year or years and may be deducted from the taxpayer's tax
   19  for such year or years. In lieu of such  carryover,  any  such  taxpayer
   20  which  qualifies  as  a  corporate  new  business under paragraph six of
   21  subdivision (b) of section twenty-one of this chapter may elect, on  its
   22  report  for  its  taxable  year  with  respect  to  which such credit is
   23  allowed, to treat fifty percent of the amount of such  carryover  as  an
   24  overpayment  of  tax  to  be credited or refunded in accordance with the
   25  provisions of section ten hundred eighty-six of this chapter.  Provided,
   26  however,  the provisions of subsection (c) of section ten hundred eight-
   27  y-eight of this chapter notwithstanding, no interest shall be paid ther-
   28  eon.
   29    § 50. This act shall take effect immediately, provided  that  sections
   30  twenty-nine,  thirty,  thirty-four,  thirty-five, thirty-six and thirty-
   31  seven of this act shall take effect April 1, 2001, and provided  further
   32  that  sections  thirty-nine,  forty,  forty-one, forty-two, forty-three,
   33  forty-eight and forty-nine of this act  shall  apply  to  taxable  years
   34  beginning  on  or  after January 1, 2000 and section forty-two-a of this
   35  act shall apply to taxable years beginning on or after January 1,  2001,
   36  but only to site costs incurred and property placed in service after the
   37  date  this  act shall have become a law.  Provided further, subdivisions
   38  13 and 14 of section 97-b of the state finance  law,  as  designated  by
   39  section  twenty-nine  of  this  act,  shall be deemed repealed effective
   40  April first  of  the  state  fiscal  year  following  the  certification
   41  provided  for  in    subdivision  15  of such section 97-b; and provided
   42  further that the state comptroller shall  notify  the  legislative  bill
   43  drafting  commission  upon  the occurrence of the certification provided
   44  for in subdivision 15 of section 97-b of the state finance law in  order
   45  that  the  commission may maintain an accurate and timely effective data
   46  base of the official text of the laws of the state of New York in furth-
   47  erance of effecting the provisions of section 44 of the legislative  law
   48  and section 70-b of the public officers law.

   49                                   PART F

   50    Section  1.  Subdivision  2  of  section  11-0305 of the environmental
   51  conservation law is amended to read as follows:
   52    2. To issue the licenses and permits provided for by law, to fix their
   53  terms, and the fees therefor, when no statutory provision  is  made,  to
   54  designate  agents  to  sell  and  promote the sale of licenses, to adopt

       S. 6292                            67                            A. 9292

    1  procedures for the issuance of licenses, to  establish  the  design  and
    2  format  of  licenses  and  the  information  to be contained thereon, to
    3  provide where it deems appropriate for tags and buttons, to adopt proce-
    4  dures   respecting  tagging  or  identifying  fish  and  wildlife  being
    5  possessed or transported, to establish procedures and  requirements  for
    6  reporting  license sales and handling and remittance of license revenues
    7  by persons or entities issuing such licenses, to provide for  acceptable
    8  methods  of  payment of license fees, and to revoke licenses and permits
    9  as provided by law;
   10    § 2. Section 11-0305 of the environmental conservation law is  amended
   11  by adding a new subdivision 18 to read as follows:
   12    18.    To prepare or cause to be prepared voluntary habitat stamps and
   13  furnish such stamps annually to license issuing agents and officers  for
   14  sale  and  issuance  in  the  same manner as licenses and other types of
   15  stamps.  The department shall, by rule, establish the fee for the  habi-
   16  tat  stamp which shall not exceed five dollars plus an additional amount
   17  for the issuing agent or officer. The purchase of a stamp  is  voluntary
   18  and a stamp need not be possessed in order to take fish or wildlife.
   19    §  3.  Subdivision 3 of section 11-0327 of the environmental conserva-
   20  tion law is amended by adding a new paragraph (g) to read as follows:
   21    (g) To review the department's planned expenditures for fish and wild-
   22  life purposes. The department shall, by the first day of October of each
   23  year, submit to the board for its review planned  expenditures  by  time
   24  and activity code for all fish and wildlife programs for the next fiscal
   25  year.
   26    § 4. Subparagraph 1 of paragraph a of subdivision 2 of section 11-0701
   27  of the environmental conservation law is REPEALED and a new subparagraph
   28  1 is added to read as follows:
   29    (1)  A small and big game license entitles the resident holder to hunt
   30  wildlife subject to the following:
   31    (i) a holder who is eighteen years of age or older may  hunt  wildlife
   32  as provided in title 9 of this article,
   33    (ii)  a holder who is sixteen years of age or older may hunt wildlife,
   34  except big game, as provided in title 9 of this article, and
   35    (iii) a holder who is between the ages of  sixteen  and  eighteen  may
   36  hunt  big  game  pursuant  to  the provisions of title 9 of this article
   37  while the holder is accompanied by a parent, guardian or person over the
   38  age of eighteen as required by section 11-0929 of this article.
   39    A holder may take fish with a gun or longbow as provided in  titles  9
   40  and 13 of this article.
   41    §  5.  Paragraph b of subdivision 2 of section 11-0701 of the environ-
   42  mental conservation law is amended to read as follows:
   43    b. A special antlerless deer license is applicable to the  hunting  of
   44  wild antlerless deer in a special open season fixed pursuant to subdivi-
   45  sion 6 of section 11-0903 of this article in a tract within a Wilderness
   46  Hunting Area and entitles the holder of a small and big game license who
   47  is entitled to hunt wild deer as provided in paragraph a to hunt antler-
   48  less  deer  in  such special open season, as provided in title 9 of this
   49  article if he has on his person while so hunting both his small and  big
   50  game license and his special antlerless deer license.
   51    §  6.  Paragraph c of subdivision 2 of section 11-0701 of the environ-
   52  mental conservation law, as amended by chapter 57 of the laws  of  1993,
   53  is amended to read as follows:
   54    c.  A junior archery license entitles a resident holder who is between
   55  the ages of fourteen and sixteen years to hunt wild deer and bear with a
   56  longbow during the special archery season and during the regular  season

       S. 6292                            68                            A. 9292

    1  [in areas restricted to bowhunting only], as provided in title 9 of this
    2  article,  as  if  such  person held a big game license with a bowhunting
    3  stamp affixed, subject to the provisions of section 11-0929 and subdivi-
    4  sion  6  of section 11-0713 of this article.  It entitles a non-resident
    5  holder who is between the ages of fourteen and  sixteen  years  to  hunt
    6  wild  deer and bear with a longbow during the special archery season and
    7  during the regular season [in areas restricted to bowhunting  only],  as
    8  provided  in title 9 of this article, as if such person held a non-resi-
    9  dent bowhunting license, a non-resident big game license and a non-resi-
   10  dent bear tag, subject to the provisions of section 11-0929 and subdivi-
   11  sion [six] 6 of section 11-0713 of this article.
   12    § 7. Paragraphs d and e of subdivision 2 of  section  11-0701  of  the
   13  environmental conservation law are REPEALED.
   14    §  8.  Subdivision 3 of section 11-0701 of the environmental conserva-
   15  tion law, as amended by chapter 160 of the laws of 1979, is  amended  to
   16  read as follows:
   17    3.  A  bowhunting  stamp  when affixed to a small and big game license
   18  entitles a holder who is eighteen years of age or  older  to  hunt  wild
   19  deer and bear with a longbow, as provided in title 9 of this article, in
   20  a  special  longbow  season, and it entitles a holder who is between the
   21  ages of sixteen and eighteen  years  to  exercise  the  same  privileges
   22  subject  to  the  provisions  of  section  11-0929  and subdivision 6 of
   23  section 11-0713 of this article.
   24    § 9. Subdivision 5 of section 11-0701 of the  environmental  conserva-
   25  tion  law,  as  amended by chapter 57 of the laws of 1993, is amended to
   26  read as follows:
   27    5. a. A combined resident [hunting,] fishing and small  and  big  game
   28  license, hereinafter in this article referred to as a sportsman license,
   29  entitles the holder to the privileges the holder would have if the hold-
   30  er  held  separately  a  [hunting,  a]  fishing and a small and big game
   31  license.
   32    b. A combined resident small and big  game,  fishing,  bowhunting  and
   33  muzzle-loading  license,  hereinafter  in  this article referred to as a
   34  super-sportsman license, entitles the holder to the privileges the hold-
   35  er would have if the  holder  held  separately  a  small  and  big  game
   36  license,  a  fishing  license,  and a bowhunting stamp, a muzzle-loading
   37  stamp and a turkey permit.
   38    § 10. Subdivision 6 of section 11-0701 of the environmental  conserva-
   39  tion  law,  as  amended by chapter 646 of the laws of 1977 and as renum-
   40  bered by chapter 208 of the laws of 1978 and the  opening  paragraph  as
   41  redesignated  by  chapter 450 of the laws of 1991, is amended to read as
   42  follows:
   43    6. A combination free [hunting-big] small and big game hunting-fishing
   44  license entitles the holder to the privileges he would have if he  held,
   45  separately, a [hunting,] small and big game hunting and fishing license,
   46  provided,  however, if the said combination free [hunting-big] small and
   47  big game hunting-fishing license is stamped by the issuing clerk  "FISH-
   48  ING ONLY" the holder is entitled only to the privileges he would have if
   49  he held a fishing license.
   50    §  11. Subdivision 8 of section 11-0701 of the environmental conserva-
   51  tion law, as amended by chapter 450 of the laws of 1991, is  amended  to
   52  read as follows:
   53    8.  A [five-day] seven-day fishing license entitles the [non-resident]
   54  holder to exercise the privileges of a fishing license  for  the  [five]
   55  seven consecutive days specified in the license.

       S. 6292                            69                            A. 9292

    1    §  12. Subdivision 9 of section 11-0701 of the environmental conserva-
    2  tion law is REPEALED.
    3    § 13. Subdivision 11 of section 11-0701 of the environmental conserva-
    4  tion  law, as added by chapter 198 of the laws of 1977 and as renumbered
    5  by chapter 470 of the laws of 1994, is amended to read as follows:
    6    11. A muzzle-loading stamp when  affixed  to  a  small  and  big  game
    7  license  entitles  a holder who is sixteen years of age or older to hunt
    8  wild deer and bear with a muzzle-loading firearm, as provided  in  title
    9  [nine] 9 of this article, in a special muzzle-loading firearm season.
   10    § 14. Subdivision 12 of section 11-0701 of the environmental conserva-
   11  tion  law, as added by chapter 450 of the laws of 1991 and as renumbered
   12  by chapter 470 of the laws of 1994, is amended to read as follows:
   13    12. a. A junior [hunting] small game license entitles the  holder  age
   14  twelve  to  age [sixteen] thirteen to hunt [small game] wildlife, except
   15  big game, as provided in title 9 of this article subject,  specifically,
   16  to  the  provisions of section 11-0929 of this article. It entitles such
   17  holder to possess firearms as provided in section 265.05  of  the  penal
   18  law.
   19    b.   A junior small and big game license entitles the holder age four-
   20  teen to age sixteen to hunt wildlife, except big game, pursuant  to  the
   21  provisions  of  title  9 of this article and to hunt big game during the
   22  special muzzle-loading season and during the regular season, as provided
   23  in title 9 of this article, as if such person held a  big  game  license
   24  with  a muzzle-loading stamp affixed, provided that the holder is accom-
   25  panied by a parent, guardian or person  over  the  age  of  eighteen  as
   26  required by section 11-0929 of this article.
   27    §  15.  Subdivisions  13, 14 and 15 of section 11-0701 of the environ-
   28  mental conservation law, as added by chapter 57 of the laws of 1993  and
   29  as renumbered by chapter 470 of the laws of 1994, are amended to read as
   30  follows:
   31    13.  A  non-resident  bowhunting license entitles a person who has not
   32  been a resident of the state for more than thirty days to hunt wild deer
   33  with a longbow in a special  longbow  season  [and  during  the  regular
   34  season] as provided for in title 9 of this article and, when accompanied
   35  by  a  non-resident  bear  tag,  entitles the holder to hunt bear with a
   36  longbow during the open bear season.
   37    14. A non-resident muzzle-loading license entitles a  person  who  has
   38  not  been a resident of the state for more than thirty days to hunt wild
   39  deer with a muzzleloader in a special muzzle-loading season [and  during
   40  the regular season] as provided for in title 9 of this article and, when
   41  accompanied by a non-resident bear tag, entitles the holder to hunt bear
   42  with a muzzleloader during the open bear season.
   43    15. A non-resident combined hunting, fishing, big game, bowhunting and
   44  muzzle-loading  license,  hereinafter  in  this article referred to as a
   45  super-sportsman license, entitles a person who has not been  a  resident
   46  of the state for more than thirty days to the privileges that the holder
   47  would  have if the holder held separately a non-resident hunting, a non-
   48  resident fishing, a non-resident big game, a non-resident bowhunting and
   49  a non-resident muzzle-loading license, except that only one bear may  be
   50  taken.
   51    §  16. Subdivision 1 of section 11-0702 of the environmental conserva-
   52  tion law, as amended by chapter 57 of the laws of 1993 and  paragraph  a
   53  as  amended  by  chapter  245 of the laws of 1995, is amended to read as
   54  follows:
   55    1. There are hereby created the following lifetime  hunting,  fishing,
   56  trapping,  archery and muzzle-loading licenses and fees therefor subject

       S. 6292                            70                            A. 9292

    1  to the same privileges  and  obligations  of  a  comparable  short  term
    2  license:

    3                Licenses                               Fees
    4         a. Lifetime resident combined
    5       [hunting,] fishing and small
    6       and big game license.
    7       If purchased, for a child four
    8       years of age or younger              [$250.00] $285.00

    9         for a child age five through
   10       eleven years of age                  [$350.00] $395.00

   11         for a person age twelve through
   12       sixty-four years of age              [$500.00] $565.00

   13         for a person age sixty-five
   14       and over.                                      $ 50.00

   15         b. Lifetime resident [hunting]
   16       small and big game license.          [$250.00] $340.00

   17         c. Lifetime resident fishing
   18       license.                             [$250.00] $340.00

   19         d. Lifetime resident trapping
   20       license.                             [$250.00] $290.00

   21         e. Lifetime resident archery
   22       stamp.                               [$125.00] $170.00

   23         f. Lifetime resident muzzle-
   24       loading stamp.                       [$125.00

   25         g. Lifetime resident big game hunting
   26       license.                              $250.00] $170.00

   27    The holder of a lifetime resident hunting, big game or fishing license
   28  may,  at  any time, convert such license to a lifetime resident combined
   29  hunting, fishing and big game license for an additional fee equal to the
   30  existing differential.
   31    § 17. Subdivision 2 of section 11-0703 of the environmental  conserva-
   32  tion  law,  as  amended by chapter 57 of the laws of 1993, is amended to
   33  read as follows:
   34    2. No license, permit, tag or stamp is transferable. No  person  shall
   35  alter,  change,  lend  to  another or attempt to transfer to another any
   36  license or any button, permit, tag or stamp issued therewith. No person,
   37  while hunting, shall possess a license, button,  permit,  tag  or  stamp
   38  which  was  issued  to another person unless actually accompanied by the
   39  person to whom such license, button, permit, tag or stamp was issued. No
   40  person shall purchase, possess or use  more  than  one  junior  archery,
   41  junior  small and big game, small game and big game, big game, [combined
   42  resident hunting, fishing  and  big  game]  bowhunting,  muzzle-loading,
   43  sportsman,  super-sportsman,  non-resident bowhunting or muzzle-loading,
   44  combined  non-resident  hunting,  fishing,  big  game,  bowhunting   and
   45  muzzle-loading  license, non-resident bear tag or special permit for the

       S. 6292                            71                            A. 9292

    1  current license year, except as permitted by rule or regulation  of  the
    2  department.
    3    §  18. Subdivision 3 of section 11-0703 of the environmental conserva-
    4  tion law, paragraph b as amended by 646 of the laws of 1977 and subpara-
    5  graph 1 of paragraph b as amended by chapter 57 of the laws of 1993,  is
    6  amended to read as follows:
    7    3.  [a.]  Any  license,  stamp  or  certificate  in  lieu of a lost or
    8  destroyed license, obtained by fraud, or by a person not  authorized  to
    9  hold it, or who makes a false statement in applying for it, is void.
   10    [b.  (1)  A  big  game,  junior  archery,  non-resident  bowhunting or
   11  muzzle-loading license or the big game license  portion  of  a  combined
   12  resident  hunting, fishing and big game license or combined non-resident
   13  hunting, fishing, big game, bowhunting  and  muzzle-loading  license  is
   14  void  for  the  taking of deer if the license tag or tags marked "dupli-
   15  cate" provided for in section 11-0713 is detached from the  license  tag
   16  marked "original".
   17    (2)  The  big  game  license portion of a combination free hunting-big
   18  game hunting-fishing license is void for  the  taking  of  deer  if  the
   19  license  tag  marked  "duplicate"  provided  for  in  section 11-0713 is
   20  detached from the license tag marked "original".]
   21    § 19. Subdivision 4 of section 11-0703 of the environmental  conserva-
   22  tion  law,  as amended by chapter 450 of the laws of 1991, paragraphs a,
   23  b, c and d as amended by chapter 57 of the laws of 1993 and paragraph  e
   24  as  relettered by chapter 470 of the laws of 1994, is amended to read as
   25  follows:
   26    4. a. [Five-day] Non-resident fishing licenses, combined  non-resident
   27  hunting,  fishing, big game, bowhunting and muzzle-loading, non-resident
   28  bowhunting or muzzle-loading  and  non-resident  trapping  licenses  and
   29  non-resident  bear  tags  are issuable only to non-residents and persons
   30  who have been residents for less than thirty days immediately  preceding
   31  the date of application.
   32    b. A person under the age of fourteen years is ineligible for a junior
   33  small  and  big game or a junior archery license. A person under the age
   34  of sixteen years is ineligible for a  small  and  big  game  license,  a
   35  [combined  resident  hunting,  fishing and big game] sportsman or super-
   36  sportsman license, combined non-resident  hunting,  fishing,  big  game,
   37  bowhunting,  and  muzzle-loading,  non-resident bowhunting, non-resident
   38  muzzle-loading license, a muzzle-loading stamp or a bowhunting stamp.  A
   39  person is ineligible for a hunting, small and big game, junior small and
   40  big  game, big game, junior archery, [combined resident hunting, fishing
   41  and big game] sportsman and super-sportsman, combined non-resident hunt-
   42  ing, fishing, big  game,  bowhunting  and  muzzle-loading,  non-resident
   43  bowhunting  or  non-resident  muzzle-loading license unless he meets the
   44  requirements of subdivision 6 of section 11-0713 of this article.
   45    c. Only the following persons are eligible for [a  combined]  resident
   46  [hunting,  fishing  and big game license] licenses: (1) persons who have
   47  been residents in the  state  for  more  than  thirty  days  immediately
   48  preceding  the date of application for the licenses, or who are enrolled
   49  in a full-time course at a college or university within  the  state  and
   50  who are in residence in the state for the school year, or who are out of
   51  state  or  foreign exchange high school students enrolled in a full-time
   52  course in a high school within the state and who are in residence in the
   53  state for the school year; (2) Indian residents or members  of  the  six
   54  nations  residing  on any reservation wholly or partly within the state;
   55  (3) members of  the  United  States  armed  forces  in  active  service,
   56  stationed  in  this  state,  regardless of the place of residence at the

       S. 6292                            72                            A. 9292

    1  time of entry into the service; and (4) persons privileged under  subdi-
    2  vision 5 of section 11-0707 of this article to take wildlife, other than
    3  deer and bear, as if they held hunting licenses.
    4    d.  Only  persons who possess a [resident] small and big game license,
    5  junior small and big game license or the big game license portion of the
    6  combination  free  hunting-big  game  hunting-fishing  license,  or  the
    7  [combined  resident  hunting,  fishing and big game] sportsman or super-
    8  sportsman license are eligible for a bowhunting stamp or a  muzzle-load-
    9  ing stamp.
   10    e.  A  person under the age of twelve years is ineligible for a junior
   11  [hunting] small game license.
   12    § 20. Paragraph a of subdivision 5 of section 11-0703 of the  environ-
   13  mental  conservation law, as amended by chapter 237 of the laws of 1993,
   14  is amended to read as follows:
   15    a. One-day[, three-day]  and  [five-day]  seven-day  fishing  licenses
   16  expire on the date stated on them.
   17    §  21.  Paragraphs  a and b of subdivision 6 of section 11-0703 of the
   18  environmental conservation law, as added by chapter 57 of  the  laws  of
   19  1993  and  subparagraph 4 of paragraph a as renumbered by chapter 470 of
   20  the laws of 1994, are amended to read as follows:
   21    a. Except as provided in section 11-0707 and section 11-0709  of  this
   22  article,  no person shall (1) hunt wildlife, other than deer or bear, or
   23  take fish with a gun, unless such person holds and is entitled to  exer-
   24  cise  the  privileges  of a hunting, junior small game, junior small and
   25  big game, small and big game, combination free  hunting-big  game  hunt-
   26  ing-fishing license, a [combined resident hunting, fishing and big game]
   27  sportsman or super-sportsman license or a combined non-resident hunting,
   28  fishing,  big  game,  bowhunting  and  muzzle-loading  license; (2) hunt
   29  antlerless deer in a special open season therefor pursuant  to  subdivi-
   30  sion  6  of section 11-0903 of this article unless such person holds and
   31  is entitled to exercise the privileges of and has on his or  her  person
   32  while  so  hunting  both a small and big game, junior small and big game
   33  license, or junior archery license or bowhunting, muzzle-loading, combi-
   34  nation free hunting-big game hunting-fishing  license,  or  a  [combined
   35  resident  hunting,  fishing  and  big game] sportsman or super-sportsman
   36  license, or combined non-resident hunting, fishing, big game, bowhunting
   37  and muzzle-loading license and a special antlerless  deer  license;  (3)
   38  take  fish  or frogs in the manner described in subdivision 4 of section
   39  11-0701 of this article unless such person is entitled to  exercise  the
   40  privileges  of  a  fishing license; (4) trap wildlife unless such person
   41  holds a trapping license.
   42    b. Except as provided in section 11-0707 and section 11-0709  of  this
   43  article, no resident shall (1) hunt wild deer or bear unless such person
   44  holds  and  is  entitled  to  exercise the privileges of a small and big
   45  game, junior archery, junior small and  big  game,  bowhunting,  muzzle-
   46  loading or combination free hunting-big game hunting-fishing license, or
   47  a  [combined resident hunting, fishing and big game] sportsman or super-
   48  sportsman license and meets the requirements of subdivisions 2 and 3  of
   49  section  11-0701  or  subdivision  2  or  4  of  section 11-0715 of this
   50  article; (2) hunt wild deer or bear with a longbow in a special  longbow
   51  season  unless  such person holds and is entitled to exercise the privi-
   52  leges of a small and big game license  or  junior  small  and  big  game
   53  license or combination free hunting-big game hunting-fishing license, or
   54  a  [combined  resident  hunting,  fishing  and  big  game] sportsman and
   55  super-sportsman license with a bowhunting stamp affixed or junior  arch-
   56  ery  license  and  meets  the  requirements  of  subdivisions 2 and 3 of

       S. 6292                            73                            A. 9292

    1  section 11-0701 or subdivision  2  or  4  of  section  11-0715  of  this
    2  article;  or (3) hunt wild deer or bear with a muzzle-loading firearm in
    3  a special muzzle-loading firearm season unless such person holds a small
    4  and  big  game,  or  combination  free  hunting-big game hunting-fishing
    5  license or a [combined resident hunting, fishing and big game] sportsman
    6  or super-sportsman license with a  muzzle-loading  stamp  affixed  or  a
    7  junior small and big game license and meets the requirements of subdivi-
    8  sion 2 of section 11-0701 of this article.
    9    § 22. Paragraphs a, b and d of subdivision 2 of section 11-0705 of the
   10  environmental conservation law, paragraphs a and b as amended by chapter
   11  57  of the laws of 1993 and paragraph d as amended by chapter 209 of the
   12  laws of 1980, are amended to read as follows:
   13    a. Holders of a hunting, junior [hunting] small game,  small  and  big
   14  game, junior small and big game, combined non-resident hunting, fishing,
   15  big  game,  bowhunting  and muzzle-loading, combination free hunting-big
   16  game hunting-fishing license or [combined resident hunting, fishing  and
   17  big  game]  sportsman  or  super-sportsman license, while exercising the
   18  privileges of a hunting or small and big game license,  shall  have  the
   19  [hunting  license]  back  tag  issued with their license attached to and
   20  displayed on the back of the outer garment between the shoulders in such
   21  manner that all figures are plainly visible at all times.
   22    b. Holders of a big game, small and big game,  junior  small  and  big
   23  game, combination free hunting-big game hunting-fishing, [combined resi-
   24  dent  hunting,  fishing  and  big  game]  sportsman and super-sportsman,
   25  combined  non-resident  hunting,  fishing,  big  game,  bowhunting   and
   26  muzzle-loading,  non-resident  bowhunting  or  muzzle-loading  or junior
   27  archery license, while hunting wild deer or bear, shall  have  the  [big
   28  game,  combination free hunting-big game hunting-fishing or junior arch-
   29  ery] license tag issued with their [big game, combination free  hunting-
   30  big  game  hunting-fishing,  combined  resident hunting, fishing and big
   31  game, combined non-resident hunting, fishing, big game,  bowhunting  and
   32  muzzle-loading,  non-resident  bowhunting  or  muzzle-loading  or junior
   33  archery] license so attached and displayed.
   34    d. Notwithstanding the provisions of paragraphs a, b  and  c  of  this
   35  subdivision, a [hunting] license holder shall not be required to display
   36  such license tag in the Northern Zone or the Catskill Park.
   37    §  23. Subdivision 2 of section 11-0709 of the environmental conserva-
   38  tion law is amended to read as follows:
   39    2. Whenever taking of destructive or menacing wildlife  is  authorized
   40  in  section  11-0523  of  this  article,  such taking is exempt from the
   41  requirement of a hunting, small and  big  game,  big  game  or  trapping
   42  license,  unless  the  provision  authorizing such taking specifies that
   43  such license is required.
   44    § 24.  Section  11-0711  of  the  environmental  conservation  law  is
   45  REPEALED.
   46    §  25. Paragraph a of subdivision 1 of section 11-0713 of the environ-
   47  mental conservation law, the opening paragraph as amended by chapter 309
   48  of the laws of 1996 and subparagraphs 1 and 4 as amended by chapter  911
   49  of the laws of 1990, is amended to read as follows:
   50    a.  Hunting,  junior  small game, small and big game, junior small and
   51  big game, fishing, combination free  hunting-big  game  hunting-fishing,
   52  [combined  resident  hunting, fishing and big game] sportsman and super-
   53  sportsman, one-day[, three-day and five-day] and seven-day fishing,  big
   54  game, junior archery[, junior hunting] and trapping licenses, bowhunting
   55  stamps,  muzzle-loading  stamps,  turkey  permits, combined non-resident
   56  hunting, fishing, big  game,  bowhunting  and  muzzle-loading  licenses,

       S. 6292                            74                            A. 9292

    1  non-resident  hunting,  bowhunting or muzzle-loading licenses, non-resi-
    2  dent bear tags and license tags provided for in paragraph c of  subdivi-
    3  sion four of this section shall be issued by:
    4    (1)  environmental  conservation  officers  and regional and assistant
    5  regional environmental conservation officers,
    6    (2) clerks of a county, town or city, except a  city  having  a  popu-
    7  lation of one million or more, [and]
    8    (3)  clerks  of  a  village  having more than one thousand inhabitants
    9  according to the last preceding federal census, or of  a  village  in  a
   10  county  of less than five hundred thousand inhabitants, adjoining a city
   11  of over one million inhabitants, both according to such census[.], and
   12    (4) License issuing officers as may be appointed by the  commissioner.
   13  Applicants for designation as license issuing officers shall be over the
   14  age  of  eighteen  years  [who have been residents of the state for more
   15  than six months immediately preceding  the  date  of  application,]  and
   16  shall  meet  such  other  requirements of eligibility, including posting
   17  bond, as the department may by regulation specify. Such issuing officers
   18  shall be entitled to receive and keep the same fees for issuing licenses
   19  and stamps that are specified in section 11-0715  of  this  article  for
   20  issuing  clerks,  and  shall  file reports and remit license fees to the
   21  appropriate regional environmental conservation officer or  the  depart-
   22  ment  as  required  by  subdivision  [one]  1 of section 11-0717 of this
   23  [chapter] article for environmental conservation officers.
   24    § 26. Subdivisions 2, 3 and 4 of section 11-0713 of the  environmental
   25  conservation law are REPEALED.
   26    §  27. Subdivision 5 of section 11-0713 of the environmental conserva-
   27  tion law, as amended by chapter 450 of the laws of 1991,  is  renumbered
   28  subdivision 2 and amended to read as follows:
   29    2.  The  issuing  officer shall not issue a junior archery or a junior
   30  small and big game license to a person between the ages of fourteen  and
   31  sixteen or a junior [hunting] small game license to a person between the
   32  ages of twelve and [sixteen, years] thirteen unless at the time of issu-
   33  ance  applicant is accompanied by his parent or legal guardian who shall
   34  consent to the issuance of the license and shall so signify  by  signing
   35  his  name  in ink across the face of it. At no time shall [hunting] such
   36  licenses be issued by mail to persons between the  ages  of  twelve  and
   37  sixteen years.
   38    §  28. Subdivision 6 of section 11-0713 of the environmental conserva-
   39  tion law is renumbered subdivision 3 and  paragraphs  a,  c  and  d,  as
   40  amended  by  chapter  57  of  the  laws  of 1993, are amended to read as
   41  follows:
   42    a. Subject to the provisions of paragraphs b and c  of  this  subdivi-
   43  sion,  the issuing officer shall not issue a hunting, junior small game,
   44  small and big game, junior small and big game,  combination  free  hunt-
   45  ing-big  game  hunting-fishing,  [combined resident hunting, fishing and
   46  big game, big game] sportsman  and  super-sportsman,  [junior  hunting,]
   47  junior  archery,  combined  non-resident  hunting,  fishing,  big  game,
   48  bowhunting  and  muzzle-loading,  non-resident   hunting,   non-resident
   49  bowhunting,  non-resident muzzle-loading or trapping license or bowhunt-
   50  ing stamp or muzzle-loading stamp to any  person  unless  the  applicant
   51  presents:
   52    (1)  a  hunting, small and big game, junior small and big game, junior
   53  small game, five-day hunting, combined hunting and fishing,  combination
   54  free hunting-big game hunting-fishing, [combined resident hunting, fish-
   55  ing and big game] sportsman and super-sportsman, combined small game and
   56  big  game,  big game, junior archery, junior hunting, combined non-resi-

       S. 6292                            75                            A. 9292

    1  dent hunting, fishing, big game, bowhunting and muzzle-loading,  non-re-
    2  sident  bowhunting,  non-resident  muzzle-loading  or  trapping  license
    3  issued to him previously; or
    4    (2) an affidavit from a license issuing officer stating that applicant
    5  previously  has  been issued a hunting, junior small game, small and big
    6  game, junior small and big game, or five-day hunting,  combined  hunting
    7  and   fishing,   combination   free  hunting-big  game  hunting-fishing,
    8  [combined resident hunting, fishing and big game] sportsman  and  super-
    9  sportsman,  combined small game and big game, big game, trapping, junior
   10  hunting, combined non-resident hunting, fishing,  big  game,  bowhunting
   11  and muzzle-loading, non-resident bowhunting, non-resident muzzle-loading
   12  or junior archery license; or
   13    (3) a certificate of qualification in responsible hunting, responsible
   14  bowhunting  and responsible trapping practices, including safety, ethics
   15  and landowner-hunter relations, issued or  honored  by  the  department,
   16  pursuant to this subdivision.
   17    c.  The  issuing officer shall not issue a bowhunting stamp or muzzle-
   18  loading stamp to any resident unless the applicant presents a small  and
   19  big   game,   combination  free  hunting-big  game  hunting-fishing,  or
   20  [combined resident hunting, fishing and big game] sportsman  and  super-
   21  sportsman  license  issued  to that person for the corresponding license
   22  year.
   23    d. Certifications of qualification in responsible hunting, responsible
   24  bowhunting and responsible trapping practices may be made by duly quali-
   25  fied and designated persons, whose fitness to give instructions in  said
   26  practices has been determined by an agent of the department. The depart-
   27  ment  may designate any person it deems qualified to act as its agent in
   28  the giving of instruction and the making  of  certification.  No  charge
   29  shall  be  made  for any certificate or instruction given to a person to
   30  qualify him or her to obtain  a  [hunting,  combined  resident  hunting,
   31  fishing and big game, big game, combined non-resident, hunting, fishing,
   32  big   game,   bowhunting,  muzzle-loading,  non-resident  bowhunting  or
   33  muzzle-loading, junior hunting, junior archery or trapping]  license  or
   34  [bowhunting]  stamp  other  than  for  certain instruction and materials
   35  accredited by the department to provide preparation for  final  instruc-
   36  tion  and testing by agents of the department. The department shall make
   37  available to the public courses without  charge  which  do  not  require
   38  additional  preparation  at  the expense of students, and may also offer
   39  optional courses which require preparatory instruction which may  be  at
   40  the  expense  of  the student.   The department may make rules and regu-
   41  lations which in its opinion are calculated  to  effectuate  better  the
   42  purpose of this subdivision.
   43    §  29. Paragraph e of subdivision 3 of section 11-0713 of the environ-
   44  mental conservation law, such subdivision as renumbered by section twen-
   45  ty-eight of this act, is REPEALED.
   46    § 30. Subdivision 7 of section 11-0713 of the environmental  conserva-
   47  tion  law, as amended by chapter 450 of the laws of 1991 and paragraph a
   48  as amended by chapter 470 of the laws of 1994, is renumbered subdivision
   49  4 and amended to read as follows:
   50    4. a. A person who has  lost  or  accidentally  destroyed  a  hunting,
   51  junior  small game, small and big game, junior small and big game, fish-
   52  ing, combination free hunting-big game hunting-fishing, [combined  resi-
   53  dent  hunting,  fishing  and  big game] sportsman, super-sportsman, [big
   54  game, junior archery, junior  hunting]  non-resident  hunting,  combined
   55  non-resident  hunting, fishing, big game, bowhunting and muzzle-loading,
   56  non-resident  bowhunting,  non-resident   muzzle-loading   or   trapping

       S. 6292                            76                            A. 9292

    1  license, bowhunting stamp or muzzle-loading stamp may apply to the offi-
    2  cer  who issued it for a certificate in lieu thereof. Such officer shall
    3  issue a certificate stating the name and address of the  applicant,  the
    4  type  of  license issued and the fee, if any, paid for it.  Applications
    5  and certificates furnished by the department  shall  be  used  for  this
    6  purpose.
    7    b.  A  person  who  has lost or accidentally destroyed a button issued
    8  with such a license or a  hunting,  [junior  hunting,]  junior  archery,
    9  junior small game, small and big game, junior small and big game, combi-
   10  nation  free hunting-big game hunting, combined hunting and big game, or
   11  big game license tag may apply to the department for a duplicate and the
   12  department shall issue a duplicate button or tag when satisfied that the
   13  application is made in good faith. A duplicate  combination  free  hunt-
   14  ing-big game hunting tag shall be issued free of charge.
   15    §  31. Subdivision 8 of section 11-0713 of the environmental conserva-
   16  tion law is renumbered subdivision 5.
   17    § 32. Subdivision 2 of section 11-0715 of the environmental  conserva-
   18  tion  law,  as amended by chapter 450 of the laws of 1991, is amended to
   19  read as follows:
   20    2. A resident in the state for thirty days immediately  prior  to  the
   21  date  of  application who has attained the age of seventy is entitled to
   22  receive a fishing license, a [hunting] small and big game license, a bow
   23  hunting stamp, a muzzle-loading stamp, a trapping  license,  [a  special
   24  second  deer  permit, a big game hunting license] and [combination hunt-
   25  ing, big game and fishing]  sportsman  license  [for  the  license  year
   26  beginning October first, nineteen hundred ninety-one, and annually ther-
   27  eafter,]  for  a  [four]  five dollar license fee [and one dollar to the
   28  issuing clerk]; a member of the Shinnecock tribe or the Poospatuck tribe
   29  or a member of the six nations, residing on any  reservation  wholly  or
   30  partly within the state, is entitled to receive free of charge a fishing
   31  license, a [hunting] small and big game license, a muzzle-loading stamp,
   32  [a big game license,] a trapping license, [a special second deer permit]
   33  and  a  bow  hunting  stamp;  and a resident who is blind is entitled to
   34  receive a fishing license free of  charge.  For  the  purposes  of  this
   35  subdivision  a  person  is  blind only if either: (a) his central visual
   36  acuity does not exceed 20/200 in the better eye with correcting  lenses,
   37  or  (b) his visual acuity is greater than 20/200 but is accompanied by a
   38  limitation of the field of vision such that the widest diameter  of  the
   39  visual field subtends an angle no greater than 20 degrees.
   40    A  person  entitled  to a free license as provided in this subdivision
   41  shall be issued a  combination  free  hunting-big  game  hunting-fishing
   42  license  renewable  each  year.  Those  free  licensees not qualified to
   43  receive a hunting license shall have stamped  across  the  face  thereof
   44  "FISHING  ONLY",  and  the  issuing clerk shall destroy the accompanying
   45  back tag for such license.
   46    A resident in the state for a period of thirty days immediately  prior
   47  to  the  date  of  application who has attained the age of sixty-five is
   48  entitled to receive a combined hunting, fishing and big game license  at
   49  the  cost of [four] five dollars as a license fee [and one dollar to the
   50  issuing clerk].
   51    § 33. Subdivision 3 of section 11-0715 of the environmental  conserva-
   52  tion  law  is  REPEALED  and  a  new  subdivision  3 is added to read as
   53  follows:
   54    3. Applicants for licenses or stamps shall pay to the issuing  officer
   55  fees,  according  to  the  license  or stamp issued and the residence or
   56  other qualification of the applicant, as follows:

       S. 6292                            77                            A. 9292

    1    a. In the case of persons who have been residents  of  the  state  for
    2  more  than  thirty days immediately preceding the date of application or
    3  who are enrolled in a full-time course at a college or university within
    4  the state and who are in residence in the state  for  the  school  year,
    5  Indians residing off reservations in the state and members of the United
    6  States armed forces in active service stationed in this state regardless
    7  of place of residence at the time of entry into service:
    8        License                           Fee
    9       (1) Super-sportsman                $64.00
   10       (2) Sportsman                      $34.00
   11       (3) Small and big game             $18.00
   12       (4) Fishing                        $19.00
   13       (5) Trapping                       $15.00
   14       (6) Hunting                        $14.00
   15       (7) Junior trapping                $ 6.00
   16       (8) Muzzle-loading stamp           $15.00
   17       (9) Bowhunting stamp               $15.00
   18       (10) Turkey permit                 $ 5.00
   19       (11) Seven-day fishing             $10.00
   20    b. In the case of a non-resident and persons resident in the state for
   21  less  than  thirty  days, other than persons who are enrolled in a full-
   22  time course at a college or university within the state and who  are  in
   23  residence  in  the  state  for  the school year and those members of the
   24  United States armed forces as to whom fees are specified in paragraph  a
   25  of this subdivision:
   26        License                           Fee
   27       (1) Big game                       $110.00
   28       (2) Hunting                        $ 55.00
   29       (3) Fishing                        $ 40.00
   30       (4) Seven-day fishing              $ 25.00
   31       (5) Trapping                       $255.00
   32       (6) Super-sportsman                $250.00
   33       (7) Bowhunting                     $110.00
   34       (8) Muzzle-loading                 $110.00
   35       (9) Bear tag                       $ 30.00
   36       (10) Turkey permit                 $ 30.00
   37    c.  In all cases:
   38       (1) Certificates in lieu of lost license or stamp      $ 5.00
   39       (2) Duplicate for lost or destroyed button or tag      $10.00
   40       (3) Junior small game license                          $ 5.00
   41       (4) Junior small and big game                          $ 9.00
   42       (5) Junior archery                                     $ 9.00
   43       (6) One-day fishing license                            $15.00
   44    §  34. Subdivision 4 of section 11-0715 of the environmental conserva-
   45  tion law, as amended by chapter 450 of the laws of 1991, is  amended  to
   46  read as follows:
   47    4. A person resident in the state for at least thirty days immediately
   48  prior to the date of application, who has been honorably discharged from
   49  service in the armed forces of the United States and certified as having
   50  a  forty per cent or greater service-connected disability is entitled to
   51  receive a combination hunting-big game hunting-fishing  license,  a  bow
   52  hunting  stamp,  a muzzle loading stamp and a trapping license renewable
   53  each year for a [four] five dollar fee [and one dollar  to  the  issuing
   54  clerk].
   55    § 35. Section 11-0715 of the environmental conservation law is amended
   56  by adding a new subdivision 6 to read as follows:

       S. 6292                            78                            A. 9292

    1    6.  a.  License  issuing  officers may retain 1.1 percent of the gross
    2  proceeds from the sale of the following:
    3       (1) non-resident hunting license
    4       (2) big game license
    5       (3) non-resident trapping license
    6       (4) bear tag
    7       (5) non-resident bowhunting license
    8       (6) non-resident muzzle-loading license
    9       (7) non-resident super-sportsman license
   10       (8) non-resident turkey permit.
   11    b.  License  issuing  officers  may  retain  5.5  percent of the gross
   12  proceeds from sale of  all  other  licenses,  stamps,  certificates  and
   13  permits,  including  any application fees associated with such licenses,
   14  stamps, certificates and permits.
   15    § 36.  Section  11-0717  of  the  environmental  conservation  law  is
   16  REPEALED.
   17    § 37. The opening paragraph of paragraph a of subdivision 2 of section
   18  11-0719 of the environmental conservation law, as amended by chapter 119
   19  of the laws of 1999, is amended to read as follows:
   20    The  department  may revoke [the] any hunting, small and big game, big
   21  game, junior archery, bowhunting, muzzle-loading, the small and big game
   22  portion of the sportsman license, the small and big game, bowhunting  or
   23  muzzle-loading  portion  of  the  super-sportsman  license,  or trapping
   24  license or stamp or the hunting and big game  hunting  portions  of  the
   25  combination free hunting-big game hunting-fishing license, or any or all
   26  of  them,  or any stamp or tag, and deny the privilege of obtaining such
   27  license or stamp or such portions of [the combination  free  hunting-big
   28  game  hunting-fishing]  such  license  and  of  hunting  or  of trapping
   29  anywhere in the state, with or without a license,
   30    § 38. Subdivision 3 of section 11-0719 of the environmental  conserva-
   31  tion  law,  as amended by chapter 158 of the laws of 1999, is amended to
   32  read as follows:
   33    3. A junior hunting license issued to a person who is between the ages
   34  of twelve and sixteen years or junior archery,  junior  small  game,  or
   35  junior  small and big game license issued to a person who is between the
   36  ages of [fourteen] twelve and  sixteen  years  may  be  revoked  by  the
   37  department  upon  proof satisfactory to the department that such person,
   38  while under the age of sixteen, has engaged in hunting wildlife  with  a
   39  gun  or  longbow, in circumstances in which a license is required, while
   40  not accompanied by his parent, guardian or other adult  as  provided  in
   41  either  subdivision  1 or subdivision 3 of section 11-0929 of this arti-
   42  cle. If such license or privilege is revoked the  department  shall  fix
   43  the  period  of such revocation, which is not to exceed four years.  The
   44  department may require that such person successfully complete a  depart-
   45  ment  sponsored  course  and  obtain  a  certificate of qualification in
   46  responsible hunting or responsible  bowhunting  practices  before  being
   47  issued another hunting or bowhunting license.
   48    §  39. Paragraph b of subdivision 7 of section 11-0903 of the environ-
   49  mental conservation law, as amended by chapter 57 of the laws  of  1993,
   50  is amended to read as follows:
   51    b. Deer may be taken only by holders of [big game or combined resident
   52  hunting, fishing and big game or combination free hunting-big game hunt-
   53  ing-fishing   or  combined  non-resident  hunting,  fishing,  big  game,
   54  bowhunting and muzzle-loading or non-resident bowhunting  and  non-resi-
   55  dent  muzzle-loading  licenses]  a license authorizing the taking of big

       S. 6292                            79                            A. 9292

    1  game who have also obtained a special permit provided by the  department
    2  and issued by the town clerk of each town where such season is fixed;
    3    §  40.  Subparagraph  1  of  paragraph  e  of subdivision 9 of section
    4  11-0903 of the environmental conservation law, as amended by chapter 911
    5  of the laws of 1990, is amended to read as follows:
    6    (1) a requirement that hunting deer during such special  season  shall
    7  be  only  by holders of both a [big game] license authorizing the taking
    8  of big game and a special permit for the area where hunting  is  permit-
    9  ted,
   10    §  41. Paragraph a of subdivision 1 of section 11-0907 of the environ-
   11  mental conservation law, as amended by chapter 330 of the laws of  1994,
   12  is amended to read as follows:
   13    a.  Wild  deer  without  antlers or having antlers measuring less than
   14  three inches in length shall not be taken unless it is taken (1) by long
   15  bow in a special long bow season established in subdivision  3  of  this
   16  section,  or  (2)  by muzzle-loading firearm in a special muzzle-loading
   17  firearm season established in subdivision 8 of this section, or  (3)  by
   18  long  bow in Westchester and Suffolk Counties in a year in which a regu-
   19  lar season for deer of either sex is established for such  counties,  or
   20  (4)  in  a  special  open  season  for deer of either sex fixed by order
   21  pursuant to subdivision 5 or 7 of section 11-0903 of this title, or  (5)
   22  pursuant  to  a special antlerless deer license in a special open season
   23  for antlerless deer in a tract within a Wilderness Hunting Area fixed by
   24  regulation pursuant to subdivision 6 of section 11-0903 of  this  title,
   25  or (6) pursuant to a deer management permit by a person eligible to take
   26  such deer pursuant thereto as provided in section 11-0913 of this title,
   27  or (7) pursuant to a permit issued to an eligible non-ambulatory person,
   28  pursuant  to subdivision [two] 2 of section 11-0931 of this title, while
   29  in possession of a valid small and big game, junior small and big  game,
   30  sportsman,  super-sportsman  or a big game license issued by the depart-
   31  ment. Nothing in this subparagraph shall be construed to limit the power
   32  of the department to designate by regulation an area  or  areas  of  the
   33  state consisting of a county or part of a county where such season shall
   34  apply and whether the number of such special permits shall be limited.
   35    §  42. Paragraph c of subdivision 1 of section 11-0907 of the environ-
   36  mental conservation law, as amended by chapter 600 of the laws of  1993,
   37  is amended to read as follows:
   38    c.  The  limit  for wild deer is one deer per person in a license year
   39  except that (1) a person  entitled  to  exercise  the  privileges  of  a
   40  special  antlerless deer license may take an antlerless deer while hunt-
   41  ing pursuant to such license in addition to the limit of one deer  in  a
   42  license year otherwise applicable, and (2) a person who is a member of a
   43  hunting  group holding a deer management permit or permits issued pursu-
   44  ant to section 11-0913 may take additional deer while hunting in accord-
   45  ance with the conditions of the permit or permits, [and] (3) the  holder
   46  of  a  bowhunting  stamp  and a muzzle-loading stamp may take additional
   47  deer in accordance with the conditions  of  those  stamps,  and  (4)  an
   48  eligible  non-ambulatory  person,  pursuant  to  subdivision  [two] 2 of
   49  section 11-0931 of this chapter may take a deer of  either  sex  in  any
   50  deer management unit area where deer management permits have been issued
   51  by  the  department,  while in possession of a valid small and big game,
   52  junior small and  big  game,  sportsman,  super-sportsman  or  big  game
   53  license  and  a special big game permit, issued by the department, for a
   54  fee of  five  dollars.  Nothing  contained  in  this  section  shall  be
   55  construed  to  limit  the  power of the department to designate by regu-
   56  lation an area or areas of the state consisting of a county or part of a

       S. 6292                            80                            A. 9292

    1  county where such season shall apply and  whether  the  number  of  such
    2  special permits shall be limited.
    3    §  43. Paragraph c of subdivision 1 of section 11-0907 of the environ-
    4  mental conservation law, as amended by chapter 911 of the laws  of  1990
    5  and  subparagraph  2  as  amended by chapter 119 of the laws of 1991, is
    6  amended to read as follows:
    7    c. The limit for wild deer and bear is  one  deer  and  one  bear  per
    8  person  in  a license year except that (1) a person entitled to exercise
    9  the privileges of a special antlerless deer license may take an  antler-
   10  less  deer  while  hunting  pursuant  to such license in addition to the
   11  limit of one deer in a license year  otherwise  applicable,  and  (2)  a
   12  person  who  is  a  member  of a hunting group holding a deer management
   13  permit or permits issued pursuant to section 11-0913 may take additional
   14  deer while hunting in accordance with the conditions of  the  permit  or
   15  permits, [and] (3) the holder of a bowhunting stamp and a muzzle-loading
   16  stamp  may  take  additional  deer  in accordance with the conditions of
   17  those stamps, and (4) an eligible  non-ambulatory  person,  pursuant  to
   18  subdivision  [two]  2 of section 11-0931 of this chapter may take a deer
   19  of either sex in any deer management unit  area  where  deer  management
   20  permits  have  been  issued  by the department, while in possession of a
   21  valid small and big game, junior small and big game,  sportsman,  super-
   22  sportsman  or  big game license and a special big game permit, issued by
   23  the department, for a fee of five dollars.  Nothing  contained  in  this
   24  section  shall  be  construed  to  limit  the power of the department to
   25  designate by regulation an area or areas of the state  consisting  of  a
   26  county or part of a county where such season shall apply and whether the
   27  number of such special permits shall be limited.
   28    §  44.  Paragraphs  d and e of subdivision 1 of section 11-0907 of the
   29  environmental conservation law are REPEALED and two new paragraphs d and
   30  e are added to read as follows:
   31    d. (1) A person who holds a super-sportsman license or a small and big
   32  game or sportsman license to which a valid bowhunting stamp  is  affixed
   33  or  a non-resident bowhunting or combined non-resident hunting, fishing,
   34  big game, bowhunting and muzzle-loading license and who has taken a deer
   35  by longbow in a special archery season and who  has  not  taken  a  deer
   36  pursuant  to  the  privileges of a license authorizing the taking of big
   37  game in a regular open season may, in addition to the limit of one  deer
   38  in  a  license  year  otherwise applicable, take during the same license
   39  year an additional deer in a special archery season following the  close
   40  of the regular open deer season.
   41    (2)  A  person  who holds a super-sportsman license or a small and big
   42  game license or sportsman license to which a valid bowhunting  stamp  is
   43  affixed  or  a non-resident bowhunting or combined non-resident hunting,
   44  fishing, big game, bowhunting and muzzle-loading  license  and  who  has
   45  taken a deer by longbow in the regular open season for deer in Westches-
   46  ter  or  Suffolk counties may, in addition to the limit of one deer in a
   47  license year otherwise applicable, take during the same license year  an
   48  additional  deer  during such Westchester or Suffolk county regular open
   49  deer season.
   50    e. A person who holds a super-sportsman license or  a  small  and  big
   51  game,  combination  free  hunting-big  game hunting-fishing or sportsman
   52  license to which a valid muzzle-loading stamp is affixed, or a non-resi-
   53  dent muzzle-loading or combined non-resident hunting, fishing, big game,
   54  bowhunting and muzzle-loading license  and  who  has  taken  a  deer  by
   55  muzzle-loading  firearm in a muzzle-loading season and who has not taken
   56  a deer pursuant to the privileges of a license authorizing the taking of

       S. 6292                            81                            A. 9292

    1  big game in a regular open season may, in addition to the limit  of  one
    2  deer  in  a license year otherwise applicable, take during the same year
    3  an additional deer in a  special  muzzle-loading  season  following  the
    4  close of the regular deer season.
    5    §  45. Paragraph a of subdivision 3 of section 11-0907 of the environ-
    6  mental conservation law, as amended by chapter 600 of the laws of  1993,
    7  is amended to read as follows:
    8    a.  In  every  area identified in column one of the table set forth in
    9  subdivision 2 of this section, except Westchester and  Suffolk  Counties
   10  in  which  a  regular  open season for taking deer by firearms is estab-
   11  lished and effective, a special open season is  established  for  taking
   12  deer  of  either sex, by the use of a long bow only by holders of a [big
   13  game, combined small game and big game, combined  hunting,  fishing  and
   14  big  game] small and big game, sportsman, super-sportsman or combination
   15  free hunting-big game hunting-fishing license to which a valid  bowhunt-
   16  ing  stamp  is  affixed  or  a junior archery license or to holders of a
   17  non-resident bowhunting license.
   18    § 46. Paragraph a of subdivision 3 of section 11-0907 of the  environ-
   19  mental  conservation law, as amended by chapter 694 of the laws of 1980,
   20  is amended to read as follows:
   21    a. In every area identified in column one of the table  set  forth  in
   22  subdivision  2  of this section, except Westchester and Suffolk Counties
   23  in which a regular open season for taking deer  by  firearms  is  estab-
   24  lished  and  effective,  a special open season is established for taking
   25  deer of either sex, and bear, by the use of a long bow only  by  holders
   26  of  a  [big  game,  combined  small game and big game, combined hunting,
   27  fishing and big game] small and big game, sportsman, super-sportsman  or
   28  combination  free  hunting-big  game  hunting-fishing license to which a
   29  valid bowhunting stamp is affixed or a  junior  archery  license  or  to
   30  holders of a non-resident bowhunting license.
   31    §  47. Paragraph a of subdivision 5 of section 11-0907 of the environ-
   32  mental conservation law, as amended by chapter 768 of the laws of  1978,
   33  is amended to read as follows:
   34    a.  In  Monroe  County, the area bounded and described as follows:  On
   35  the west by Route 261 (Manitou Road) beginning at Manitou Beach on  Lake
   36  Ontario  in  the town of Greece and continuing southerly along such road
   37  to its intersection with the Barge Canal,  thence  easterly  along  such
   38  canal  to  East Avenue in the village of Pittsford, thence northeasterly
   39  along East Avenue to Allen Creek in the town of Brighton, thence  north-
   40  erly  along  Allen  Creek  to  Irondequoit Creek, thence northerly along
   41  Irondequoit Creek to Irondequoit Bay, thence northerly along the easter-
   42  ly shore of Irondequoit Bay to Lake Ontario; except that deer of  either
   43  sex  may be taken by the use of a long bow by holders of a small and big
   44  game or sportsman or super-sportsman license to which a valid bow  hunt-
   45  ing  stamp is affixed or a junior archery license during the regular and
   46  special deer hunting seasons provided for in  this  title  and  provided
   47  further  that this exception permitting the taking of deer by a long bow
   48  shall not apply within an  area  in  the  town  of  Greece  bounded  and
   49  described  as  follows: On the west by Long Pond Road beginning at Latta
   50  Road and continuing southerly along such road to its  intersection  with
   51  Maiden  Lane, thence easterly along Maiden Lane to its intersection with
   52  Mt. Read Blvd., thence northerly along Mt.  Read  Blvd.  to  its  inter-
   53  section  with Latta Road, thence westerly along Latta Road to its inter-
   54  section with Long Pond Road at the point of beginning.

       S. 6292                            82                            A. 9292

    1    § 48. Paragraph a of subdivision 7 of section 11-0907 of the  environ-
    2  mental  conservation law, as amended by chapter 272 of the laws of 1983,
    3  is amended to read as follows:
    4    a.  The  area described in this subdivision is closed to the taking of
    5  deer and bear by firearms, but shall be open for taking deer by the  use
    6  of  a  long bow only by holders of a small and big game, [combined small
    7  game and big game, combined hunting, fishing and  big  game]  sportsman,
    8  super-sportsman  or  combination  free  hunting-big game hunting-fishing
    9  license to which a valid bowhunting stamp is affixed or a junior archery
   10  license, as follows: during the special deer season stated  in  subdivi-
   11  sion  three  and during the regular season stated in subdivision [two] 2
   12  of this section, deer of either sex may be taken.
   13    § 49. Paragraph a of subdivision 8 of section 11-0907 of the  environ-
   14  mental  conservation law, as amended by chapter 241 of the laws of 1997,
   15  is amended to read as follows:
   16    a. In every area identified in column one of the table  set  forth  in
   17  subdivision  2 of this section, except those areas restricted to special
   18  seasons for taking deer by longbow only, special  open  seasons  may  be
   19  established  by  regulation  for  taking deer and/or bear, by the use of
   20  muzzle-loading firearms, of not less than .44 caliber shooting a  single
   21  projectile, by the holders of a small and big game, [combined small game
   22  and  big  game,  combined  hunting,  fishing  and big game] sportsman or
   23  super-sportsman or combination  free  hunting-big  game  hunting-fishing
   24  license  to  which  a  valid muzzle-loading stamp is affixed or a junior
   25  small and big game license.
   26    § 50. Paragraphs a and b of subdivision 1 of section  11-0911  of  the
   27  environmental conservation law are REPEALED and two new paragraphs a and
   28  b are added to read as follows:
   29    a.  When  a  wild  deer  is taken the taker shall immediately fill in,
   30  using ink, ball point pen or indelible pencil, the deer tags  issued  to
   31  the  taker as provided in regulations of the department. The taker shall
   32  immediately cut out or mark the month and date of kill on  the  tag  and
   33  shall  attach it to the deer, except that it need not be attached to the
   34  deer while it is being dragged or physically carried by the taker  to  a
   35  camp  or  point where other transportation is available. The taker shall
   36  report details of the location and date of harvest and data on the  deer
   37  as required by regulation.
   38    b. When a bear is taken, the taker shall fill out the bear report form
   39  issued  to  the taker as provided in regulations of the department.  The
   40  taker shall send the report form to  the  department  within  five  days
   41  after  the  close  of  the  open season in the county where the bear was
   42  taken.
   43    § 51. Subdivision 3 of section 11-0911 of the environmental  conserva-
   44  tion  law,  as amended by chapter 600 of the laws of 1993, is amended to
   45  read as follows:
   46    3. If a taker is a member of a party of deer hunters, after  attaching
   47  the  deer  tag  [marked  "Original"]  issued to the taker as provided in
   48  regulations of the department to his deer, he may, for the  duration  of
   49  the  joint  hunt only, continue to assist the other members of the party
   50  to take deer if he carries no firearm or long bow and has his license on
   51  his person, or he may hunt bear as permitted by the  regulations  estab-
   52  lished pursuant to subdivision 8 of section 11-0903.
   53    §  52. Subdivisions 3, 4 and 7 of section 11-0913 of the environmental
   54  conservation law, as amended by chapter 57 of  the  laws  of  1993,  are
   55  amended to read as follows:

       S. 6292                            83                            A. 9292

    1    3.  Each  member  of  a group issued a permit pursuant to this section
    2  shall possess a small and big game, a junior small and big game,  a  big
    3  game,  [combined  resident  hunting,  fishing  and  big game] sportsman,
    4  super-sportsman,  combination  free  hunting-big  game   hunting-fishing
    5  license  or combined non-resident hunting, fishing, big game, bowhunting
    6  and muzzle-loading license before the permit may be validated.
    7    4. During a license year, no person shall use more than one small  and
    8  big  game, junior small and big game, big game, [combined resident hunt-
    9  ing, fishing and big game] sportsman, super-sportsman, combination  free
   10  hunting-big game hunting-fishing license or [combined non-resident hunt-
   11  ing, fishing, big game, bowhunting and muzzle-loading license] in making
   12  application for a deer management permit.
   13    7.  The  department  shall charge and receive a fee of ten dollars for
   14  the application and the processing of such permit or  permits.    Appli-
   15  cants who are successful in the computerized selection shall receive the
   16  permit  or  permits  free  of any additional charge. The application fee
   17  shall be non-refundable. The department may waive  the  application  fee
   18  for  holders  of  a  [combined  resident  hunting, fishing and big game]
   19  junior small and big game, sportsman, or super-sportsman license  [or  a
   20  combined   non-resident  hunting,  fishing,  big  game,  bowhunting  and
   21  muzzle-loading license].
   22    § 53. Section  11-0929  of  the  environmental  conservation  law,  as
   23  amended  by  chapter 694 of the laws of 1980 and subdivisions 1 and 3 as
   24  amended by chapter 450 of the laws  of  1991,  is  amended  to  read  as
   25  follows:
   26  § 11-0929. Hunting by minors.
   27    1.  A licensee between the ages of twelve and fourteen years shall not
   28  hunt wildlife with a gun or a longbow unless he or she is accompanied by
   29  his or her parent or legal guardian or relative over the age of  twenty-
   30  one designated in writing by his or her parent who holds a small and big
   31  game,  hunting,  [or  combined hunting, fishing and big game] sportsman,
   32  super-sportsman or combination  free  hunting-big  game  hunting-fishing
   33  license;  a  licensee between the ages of fourteen and sixteen shall not
   34  hunt wildlife with a gun or longbow unless he or she is  accompanied  by
   35  his  or her parent holding such license, or a person over eighteen years
   36  of age, designated in writing by his or her parent  or  legal  guardian,
   37  holding such license.
   38    2.  A  licensee under the age of eighteen years who has not previously
   39  had a junior small and big game, small and big game, big game, [combined
   40  small game and big game  or  combined  hunting,  fishing  and  big  game
   41  license] sportsman or super-sportsman issued to him and engaged in hunt-
   42  ing  pursuant  to  it  shall  not  hunt deer or bear unless he or she is
   43  accompanied by his parent or legal guardian, or by a person  over  eigh-
   44  teen  years of age who has had at least one year's experience in hunting
   45  deer or bear, and such accompanying parent, guardian or person  holds  a
   46  small  and  big  game,  big  game,  [combined  small  game and big game,
   47  combined hunting, fishing and big game] or sportsman or  super-sportsman
   48  or combination free hunting-big game hunting-fishing license.
   49    3. A junior archery licensee, between the ages of fourteen and sixteen
   50  years,  shall  not  hunt  deer  or  bear unless he is accompanied by his
   51  parent or legal guardian, or by a person over eighteen years of age  who
   52  has  had at least one year's experience in hunting deer or bear by long-
   53  bow, and such accompanying parent, guardian or person holds a small  and
   54  big  game,  big game, [combined hunting, fishing and big game] sportsman
   55  or super-sportsman or combination free hunting-big game  hunting-fishing
   56  license with a bowhunting stamp affixed.

       S. 6292                            84                            A. 9292

    1    §  54.  Section 83 of the state finance law is amended by adding a new
    2  subdivision (h) to read as follows:
    3    (h)  All moneys, revenues and interest thereon received as a result of
    4  the application of subdivision eighteen of section 11-0305 of the  envi-
    5  ronmental  conservation  law authorizing the issuance and sale of volun-
    6  tary habitat stamps, other than the amount retained by the issuing agent
    7  or officer, shall be deposited in a special account within the conserva-
    8  tion fund to be known as the habitat account. All of such moneys, reven-
    9  ues and interest shall be available to the department  of  environmental
   10  conservation,  pursuant to appropriation, exclusively for fish and wild-
   11  life habitat management and the improvement and  development  of  public
   12  access for hunting, fishing, trapping and other fish and wildlife-relat-
   13  ed recreation and study.
   14    §  55.  This  act  shall  take effect on the first day of October next
   15  succeeding the date on which it shall have become a law;  provided  that
   16  the amendments to paragraph c of subdivision 1 of section 11-0907 of the
   17  environmental  conservation  law, made by section forty-two of this act,
   18  shall not affect the expiration and reversion of such paragraph,  pursu-
   19  ant  to  chapter 600 of the laws of 1993 as amended, when upon such date
   20  the provisions of section forty-three of this  act  shall  take  effect;
   21  provided,  further,  that the amendments to paragraph a of subdivision 3
   22  of section 11-0907  of  the  environmental  conservation  law,  made  by
   23  section  forty-five  of  this  act,  shall not affect the expiration and
   24  reversion of such paragraph, pursuant to chapter 600 of the laws of 1993
   25  as amended, when upon such date the provisions of section  forty-six  of
   26  this  act  shall  take  effect;  provided, further that subdivision 3 of
   27  section 11-0911 of the environmental conservation law  made  by  section
   28  fifty-one  of  this act shall not affect the expiration and reversion of
   29  such subdivision and shall be deemed to expire therewith.

   30                                   PART G

   31    Section 1.    The real property tax law is amended  by  adding  a  new
   32  section 480-b to read as follows:
   33    §  480-b.  State reimbursement for forest tax exemptions. 1. A county,
   34  town or school district containing eligible private forest  lands  shall
   35  be  eligible  for  state reimbursement as provided by this section.  For
   36  purposes of this section, "eligible private forest lands" means  private
   37  forest  tracts  receiving  an exemption pursuant to section four hundred
   38  eighty or four hundred eighty-a of this title, excluding any tract which
   39  is or had been a certified tract on which penalties are imposed pursuant
   40  to section four hundred eighty or four hundred eighty-a of this title.
   41    2. The county treasurer of  any  county  containing  eligible  private
   42  forest  lands  shall  submit to the state board a list of any changes to
   43  the assessed value, taxable status or acreage of  all  such  lands  made
   44  subsequent  to  the  filing  of those assessment rolls upon which county
   45  taxes are extended, and the county tax rate and town tax  rate  extended
   46  against any parcel receiving one of those exemptions.
   47    3.  The  business  manager  of any school district containing eligible
   48  private forest lands shall submit to the  state  board  a  list  of  any
   49  changes  to  the  assessed  value, taxable status or acreage of all such
   50  lands made subsequent to the filing of those assessment rolls upon which
   51  school taxes are extended, and the school tax rate extended against  any
   52  parcel receiving one of those exemptions.

       S. 6292                            85                            A. 9292

    1    4.  The state board shall compute the amount of state assistance paya-
    2  ble to or for the benefit of  a  county,  town  or  school  district  on
    3  account of eligible private forest lands.
    4    5. (a) The amount of state assistance paid to a county, town or school
    5  district pursuant to this section shall equal the taxes which would have
    6  been  levied  for  county,  town  or  school  district purposes upon the
    7  assessed valuation partially exempt from taxation on  the  latest  final
    8  assessment  roll of the eligible private forest lands, minus one percent
    9  of the total real property tax levy for county, town or school  district
   10  purposes  for  the current year, provided that the amount payable to any
   11  county, town or school district  pursuant  to  this  section  shall  not
   12  exceed  the maximum payment prescribed by paragraph (b) of this subdivi-
   13  sion.
   14    (b) The maximum payment to a county, town or school district  pursuant
   15  to this section shall be determined as follows:
   16    (i) Multiply the total acreage of the eligible private forest lands in
   17  the  county, town or school district on the latest final assessment roll
   18  by the average forest land value per acre, as determined  by  the  state
   19  board  based on sales of forest parcels of at least fifty acres through-
   20  out the region;
   21    (ii) Multiply the result by the full value tax rate for  county,  town
   22  or school district purposes for the current year; and
   23    (iii) Subtract from the product one percent of the total real property
   24  tax  levy  for  county, town or school district purposes for the current
   25  year.
   26    6. The state board shall certify to the state comptroller  the  amount
   27  of  state  assistance payable pursuant to this section, and shall mail a
   28  copy of such certification to the county treasurer of  each  county  and
   29  business  manager  of  each  school district containing eligible private
   30  forest tracts. Such state assistance shall be paid on audit and  warrant
   31  of  the  comptroller  out  of monies appropriated by the legislature for
   32  state assistance to counties,  towns  and  school  districts  containing
   33  eligible private forest tracts.
   34    7.  If  it  should appear to the state board that an error was made in
   35  the calculation of state assistance pursuant to subdivision five of this
   36  section and as a result of that  error  an  incorrect  amount  of  state
   37  assistance  was  paid  to  a  county, town or school district, the state
   38  board shall determine the difference between the assistance paid and the
   39  assistance that should have been paid and shall adjust  the  next  state
   40  assistance  certified  for  such county, town or school district by that
   41  difference.
   42    § 2. This act shall  take  effect  immediately,  provided  that  state
   43  assistance  payments  pursuant to section 480-b of the real property tax
   44  law, as added by section one of  this  act,  shall  be  limited  to  the
   45  amounts  appropriated  by the legislature for this purpose, and shall be
   46  submitted based upon the assessment rolls with final completion dates on
   47  or after July 1, 2000.

   48                                   PART H

   49    Section 1. Paragraph a of subdivision 2 of section 92-s of  the  state
   50  finance  law, as added by chapter 610 of the laws of 1993, is amended to
   51  read as follows:
   52    a. The comptroller shall establish the following separate and distinct
   53  accounts within the environmental protection fund:
   54    (i) solid waste account;

       S. 6292                            86                            A. 9292

    1    (ii) parks, recreation and historic preservation account;
    2    (iii) open space account; [and]
    3    (iv) Hudson River estuary trust account; and
    4    (v) environmental protection transfer account.
    5    § 2. Paragraphs (a), (b), (c) and (d) of subdivision 6 of section 92-s
    6  of the state finance law, as amended by chapter 432 of the laws of 1997,
    7  are amended to read as follows:
    8    (a) All moneys heretofore and hereafter deposited in the environmental
    9  protection  transfer  account shall be transferred by the comptroller to
   10  the solid waste account, the parks, recreation and historic preservation
   11  account [or], the open space account or the Hudson River  estuary  trust
   12  account upon the request of the director of the budget.
   13    (b)  Moneys  from the solid waste account shall be available, pursuant
   14  to appropriation and upon certificate of approval of availability by the
   15  director of the budget, for any non-hazardous municipal landfill closure
   16  project; municipal waste reduction or recycling project, as  defined  in
   17  article  fifty-four  of  the  environmental  conservation  law;  for the
   18  purposes of section  two  hundred  sixty-one  and  section  two  hundred
   19  sixty-four of the economic development law; any project for the develop-
   20  ment,  updating or revision of local solid waste management plans pursu-
   21  ant to sections 27-0107 and 27-0109 of  the  environmental  conservation
   22  law;  [and] for the development of the pesticide sales and use data base
   23  in conjunction with Cornell University pursuant to title twelve of arti-
   24  cle thirty-three of the environmental  conservation  law;  and  for  any
   25  project to assess and recover any natural resource damages to the Hudson
   26  River.
   27    (c)  Moneys  from  the  parks,  recreation  and  historic preservation
   28  account shall be available, pursuant to appropriation, for any municipal
   29  park  project,  historic  preservation  project,  urban  cultural   park
   30  project,   waterfront  revitalization  program,  coastal  rehabilitation
   31  project, state parks and lands infrastructure and  stewardship  project,
   32  Hudson  River  Park project consistent with chapter five hundred ninety-
   33  two of the laws of nineteen hundred ninety-eight.
   34    (d) Moneys from the open space account shall be available, pursuant to
   35  appropriation, for any open space land conservation project,  bio-diver-
   36  sity  stewardship  and  research pursuant to chapter five hundred fifty-
   37  four of the laws of nineteen hundred ninety-three, for the  purposes  of
   38  agricultural and farmland protection activities as authorized by article
   39  twenty-five-AAA  of  the  agriculture  and markets law, non-point source
   40  abatement and control projects pursuant to section 17-1409 of the  envi-
   41  ronmental  conservation  law  and section eleven-b of the soil and water
   42  conservation districts law, soil and water conservation district  activ-
   43  ities  authorized  for reimbursement pursuant to section eleven-a of the
   44  soil and water conservation districts law, for Long Island Central  Pine
   45  Barrens  area  planning or Long Island south shore estuary reserve plan-
   46  ning pursuant to title thirteen of article fifty-four  of  the  environ-
   47  mental conservation law[.  Moneys from the open space account shall also
   48  be  available  until  March  thirty-first, nineteen hundred ninety-nine,
   49  pursuant to appropriation], for the state reimbursement for  forest  tax
   50  exemptions pursuant to section four hundred eighty-b of the real proper-
   51  ty  tax  law,  for  operation  and  management  of  the Albany Pine Bush
   52  preserve commission pursuant to subdivision two of  section  54-0303  of
   53  the  environmental conservation law, and for New York state's membership
   54  in the following interstate pollution control commissions set  forth  in
   55  article  twenty-one of the environmental conservation law:  the Delaware
   56  River basin commission, the Susquehanna River basin commission, the Ohio

       S. 6292                            87                            A. 9292

    1  River valley water sanitation commission, the Great Lakes basin  commis-
    2  sion,  the  interstate  sanitation commission and the New England inter-
    3  state water pollution control commission.
    4    § 3. Subdivision 6 of section 92-s of the state finance law is amended
    5  by adding a new paragraph (f) to read as follows:
    6    (f) Moneys from the Hudson River estuary trust account shall be avail-
    7  able,  pursuant  to  appropriation, for projects to implement the Hudson
    8  River estuary management plan prepared pursuant to  section  11-0306  of
    9  the environmental conservation law.
   10    §  4.  Article  54 of the environmental conservation law is amended by
   11  adding a new title 14 to read as follows:
   12                                  TITLE 14
   13        STATE PARKS AND LANDS INFRASTRUCTURE AND STEWARDSHIP PROJECTS
   14  Section 54-1401. Definitions.
   15          54-1402. State parks and lands  infrastructure  and  stewardship
   16          projects.
   17  § 54-1401. Definitions.
   18    As used in this title:
   19    1.  "Stewardship"  shall  mean  the  care of the lands, facilities and
   20  natural and cultural resources under the jurisdiction of the  department
   21  and  the office of parks, recreation and historic preservation on behalf
   22  of the public, and the provision of public access thereto.
   23    2. "State parks  and  lands  infrastructure"  shall  mean  state  park
   24  resources,  recreational  facilities  and  historic  sites and any other
   25  property, real or personal, under the jurisdiction of the department and
   26  the office of parks, recreation and historic preservation, together with
   27  machinery, equipment, furnishings and fixtures relating thereto or  used
   28  in connection therewith.
   29    3.  "State  parks  and  lands infrastructure and stewardship projects"
   30  shall mean all costs incurred or to be incurred by or on behalf  of  the
   31  department and the office of parks, recreation and historic preservation
   32  for  the  purpose of preserving, improving or rehabilitating state parks
   33  and lands infrastructure.  Such projects may include, but are not limit-
   34  ed to: natural resource and habitat restoration and protection  such  as
   35  the  protection  and management of biological, land, geological, archeo-
   36  logical and other natural resources, survey  and  inventory,  scientific
   37  research,  planning  and  analysis,  and  development of unit management
   38  plans; projects to improve public access including access  opportunities
   39  for  people  with disabilities by developing, restoring, reconstructing,
   40  rehabilitating and maintaining physical facilities,  including  but  not
   41  limited  to  buildings,  roads,  bridges  and  waste  disposal  systems;
   42  projects to develop, maintain, or improve  marine  resource  facilities,
   43  water  access  facilities,  recreational  trails,  campgrounds,  day use
   44  areas, fish hatcheries, public beach facilities, visitor centers, inter-
   45  pretive and conservation education facilities; and historic preservation
   46  projects to improve, restore or  rehabilitate  property  listed  on  the
   47  state  or national registers of historic places to protect the historic,
   48  cultural or architectural significance thereof.
   49  §  54-1402.  State  parks  and  lands  infrastructure  and   stewardship
   50  projects.  1. The commissioner and the commissioner of parks, recreation
   51  and  historic  preservation  are authorized to undertake state parks and
   52  lands infrastructure and stewardship projects.
   53    2. No monies shall be expended for state parks and  lands  infrastruc-
   54  ture and stewardship projects except pursuant to an appropriation there-
   55  for.

       S. 6292                            88                            A. 9292

    1    §  5.  Subdivision  7  of  section  92-s  of  the state finance law is
    2  REPEALED.
    3    §  6.  Subdivision 2 of section 54-0509 of the environmental conserva-
    4  tion law, as amended by section 18 of part A of chapter 58 of  the  laws
    5  of 1998, is amended to read as follows:
    6    2.  An agreement by the commissioner to make state assistance payments
    7  toward  the  cost of the project by periodically reimbursing the munici-
    8  pality for costs incurred during the progress of the project to a  maxi-
    9  mum  of  either  fifty  percent  of  the  cost, or [seventy-five] ninety
   10  percent of the cost for a municipality with a  population  smaller  than
   11  thirty-five  hundred  as  determined  by  the  current federal decennial
   12  census, or two million dollars, whichever is less. The commissioner  may
   13  consider  landfill  gas  management  projects  separately  from landfill
   14  closure projects.   Such costs are  subject  to  final  computation  and
   15  determination  by  the  commissioner upon completion of the project, and
   16  shall not exceed the maximum cost  set  forth  in  the  contract.    For
   17  purposes of this subdivision, the approved project cost shall be reduced
   18  by  the  amount  of  any specific state assistance payments for landfill
   19  closure project purposes received by the municipality from  any  source;
   20  provided,  however, that non-specific state assistance payments, such as
   21  amounts paid pursuant to section fifty-four of the  state  finance  law,
   22  shall not be included in such cost reduction.
   23    §  7.  This  act  shall take effect immediately and shall be deemed to
   24  have been in full force and effect on and after April 1, 2000.

   25                                   PART I

   26    Section 1. Subdivision c of section 8 of section 4 of chapter  576  of
   27  the  laws  of 1974 constituting the emergency protection act of nineteen
   28  seventy-four, as amended by chapter 403 of the laws of 1983, is  amended
   29  to read as follows:
   30    c.  Whenever  a  city  having  a population of one million or more has
   31  determined the existence of an emergency pursuant to  section  three  of
   32  this act, the provisions of this act and the New York city rent stabili-
   33  zation  law  of nineteen hundred sixty-nine shall be administered by the
   34  state division of housing and community renewal as provided in  the  New
   35  York  city  rent  stabilization  law  of nineteen hundred sixty-nine, as
   36  amended, or as otherwise provided by law.  The  costs  incurred  by  the
   37  state  division  of  housing and community renewal in administering such
   38  regulation shall be paid by such city. All payments  for  such  adminis-
   39  tration shall be transmitted to the state division of housing and commu-
   40  nity renewal as follows: on or after April first of each year commencing
   41  with  April,  nineteen  hundred eighty-four, the commissioner of housing
   42  and community renewal shall determine an amount necessary to defray  the
   43  division's anticipated annual cost, and one-quarter of such amount shall
   44  be  paid  by such city on or before July first of such year, one-quarter
   45  of such amount on or before October first of such year,  one-quarter  of
   46  such  amount  on  or before January first of the following year and one-
   47  quarter of such amount on or before March thirty-first of the  following
   48  year.  After the close of the fiscal year of the state, the commissioner
   49  shall determine the amount of all actual costs incurred in  such  fiscal
   50  year  and  shall  certify  such  amount  to such city. If such certified
   51  amount shall differ from the amount paid by the  city  for  such  fiscal
   52  year,  appropriate  adjustments  shall  be  made  in  the next quarterly
   53  payment to be made by such city. In the event that the amount thereof is
   54  not paid to the commissioner  as  herein  prescribed,  the  commissioner

       S. 6292                            89                            A. 9292

    1  shall  certify the unpaid amount to the comptroller, and the comptroller
    2  shall, to the extent not otherwise  prohibited  by  law,  withhold  such
    3  amount  from  the next succeeding payment of per capita assistance to be
    4  apportioned  to  such  city. In no event shall the amount imposed on the
    5  owners [or certified by the division to the city] exceed ten dollars per
    6  unit per year.
    7    § 2. This act shall take effect April 1, 2000.

    8                                   PART J

    9    Section 1.  Funds appropriated from the statewide  energy  improvement
   10  account,  special revenue fund - other, for services and expenses of the
   11  power authority of the state of New York, shall be available for  energy
   12  efficiency projects. The use of these funds is not intended to limit the
   13  right  or  obligation of the power authority of the state of New York to
   14  comply with the provisions  of  any  contract,  including  any  existing
   15  contract  with  or  for the benefit of the holders of any obligations of
   16  the power authority.
   17    § 2. The power authority of the  state  of  New  York  shall  transfer
   18  $1,500,000 to New York state on or before March 31, 2001.
   19    § 3. Notwithstanding section 1010-a of the public authorities law, the
   20  comptroller  is  hereby authorized and directed to transfer to the power
   21  authority of the state  of  New  York  $1,500,000,  constituting  monies
   22  appropriated  to  the statewide energy improvement account for the power
   23  authority of the state of New York pursuant to a chapter of the laws  of
   24  2000 enacting the transportation, economic development and environmental
   25  conservation  bill,  and the power authority of the state of New York is
   26  authorized to hold such monies for the purposes specified in  a  chapter
   27  of the laws of 2000.
   28    §  4. In accordance with section 4 of the state finance law, the comp-
   29  troller is hereby authorized and directed to transfer, upon  request  of
   30  the  director of the budget, up to $1,500,000 from the federal operating
   31  grants fund (290) to  the  miscellaneous  special  revenue  fund  (339),
   32  statewide energy improvement account, on or before March 31, 2001.
   33    § 5. This act shall take effect April 1, 2000.

   34                                   PART K

   35    Section  1.  Subdivision 4 of section 94 of the transportation law, as
   36  added by chapter 15 of the laws of 1983, is amended to read as follows:
   37    4. All fees charged and collected by the commissioner hereunder  shall
   38  be  [paid  into  the  state  treasury to the credit of the general fund]
   39  deposited to the miscellaneous special  revenue  fund  -  transportation
   40  regulation account for the purposes established in this section.
   41    § 2. This act shall take effect April 1, 2000.

   42                                   PART L

   43    Section  1.    Paragraph  (b)  of  subdivision 1 of section 385 of the
   44  public authorities law, as added by chapter 56 of the laws of 1993,  and
   45  subparagraph  (iii)  as  amended  by chapter 637 of the laws of 1996, is
   46  amended to read as follows:
   47    (b) The  authority  is  hereby  authorized,  as  additional  corporate
   48  purposes  thereof solely upon the request of the director of the budget:
   49  (i) to issue special emergency highway and bridge trust fund  bonds  and
   50  notes  for  a  term  not to exceed thirty years and to incur obligations

       S. 6292                            90                            A. 9292

    1  secured by the moneys appropriated from the dedicated highway and bridge
    2  trust fund established in section eighty-nine-b  of  the  state  finance
    3  law; (ii) to make available the proceeds in accordance with instructions
    4  provided  by  the  director  of the budget from the sale of such special
    5  emergency highway and bridge trust fund  bonds,  notes  or  other  obli-
    6  gations,  net of all costs to the authority in connection therewith, for
    7  the purposes of financing all or a portion of the  costs  of  activities
    8  for  which  moneys in the dedicated highway and bridge trust fund estab-
    9  lished in section eighty-nine-b of the state finance law are  authorized
   10  to  be  utilized or for the financing of disbursements made by the state
   11  for the activities authorized pursuant to section eighty-nine-b  of  the
   12  state  finance  law; and (iii) to enter into agreements with the commis-
   13  sioner of transportation pursuant to section ten-e of  the  highway  law
   14  with  respect  to  financing  for  any activities authorized pursuant to
   15  section eighty-nine-b of the state finance law, or agreements  with  the
   16  commissioner  of  transportation pursuant to sections ten-f and ten-g of
   17  the highway law in connection with activities on state highways pursuant
   18  to these sections, and (iv) to enter into service contracts,  contracts,
   19  agreements,  deeds  and  leases  with  the director of the budget or the
   20  commissioner of  transportation  and  project  sponsors  and  others  to
   21  provide  for  the  financing  by  the authority of activities authorized
   22  pursuant to section eighty-nine-b of the state finance law, and each  of
   23  the  director  of  the budget and the commissioner of transportation are
   24  hereby authorized to enter into  service  contracts,  contracts,  agree-
   25  ments,  deeds  and leases with the authority, project sponsors or others
   26  to provide for such financing.  The authority shall not issue any  bonds
   27  or  notes in an amount in excess of [$4.75] $10.25 billion, plus a prin-
   28  cipal amount of bonds or notes: (A) to fund capital reserve  funds;  (B)
   29  to  provide  capitalized interest; and, (C) to fund other costs of issu-
   30  ance. In computing for the purposes of this subdivision,  the  aggregate
   31  amount  of  indebtedness  evidenced  by bonds and notes of the authority
   32  issued pursuant to this section, as amended by a chapter of the laws  of
   33  nineteen hundred ninety-six, there shall be excluded the amount of bonds
   34  or  notes  issued that would constitute interest under the United States
   35  Internal Revenue Code of 1986, as amended, and  the  amount  of  indebt-
   36  edness issued to refund or otherwise repay bonds or notes.
   37    §  2.  Paragraph (b) of section 11 of chapter 329 of the laws of 1991,
   38  amending the state finance law and other laws relating to the establish-
   39  ment of the dedicated highway and bridge trust fund, as amended by chap-
   40  ter 432 of the laws of 1997, is amended to read as follows:
   41    (b) Any service contract or contracts for projects authorized pursuant
   42  to sections 10-c, 10-f, 10-g and 80-b of the  highway  law  and  section
   43  14-k of the transportation law, and entered into pursuant to subdivision
   44  (a)  of  this  section,  shall  provide for state commitments to provide
   45  annually to the thruway authority a sum or sums,  upon  such  terms  and
   46  conditions as shall be deemed appropriate by the director of the budget,
   47  to fund, or fund the debt service requirements of any bonds or any obli-
   48  gations  of  the thruway authority issued to fund such projects having a
   49  cost not in excess of [$2,499.55 million  cumulatively  by  the  end  of
   50  fiscal year 1999-00] $3,787.55 million cumulatively by the end of fiscal
   51  year 2004-05.
   52    §  3.  The sum of two hundred fifty-seven million six hundred thousand
   53  dollars ($257,600,000), or so much thereof as shall be necessary, and in
   54  addition to amounts previously  appropriated  by  law,  is  hereby  made
   55  available, in accordance with subdivision 1 of section 380 of the public
   56  authorities  law  as  amended,  according  to  the  following  schedule.

       S. 6292                            91                            A. 9292

    1  Payments pursuant to subdivision (a)  of  this  section  shall  be  made
    2  available  as moneys become available for such payments. Payments pursu-
    3  ant to subdivision (b) of this section shall be made  on  the  fifteenth
    4  day  of  June,  September,  December  and March or as soon thereafter as
    5  moneys become available for such payments. No moneys of the state in the
    6  state treasury or any of its  funds  shall  be  available  for  payments
    7  pursuant to this section:
    8                                  SCHEDULE
    9    (a)  Thirty-nine  million seven hundred thousand dollars ($39,700,000)
   10  to municipalities for repayment of eligible costs of federal aid munici-
   11  pal street and highway projects pursuant to section 15 of chapter 329 of
   12  the laws of 1991, as added by section 9 of chapter 330 of  the  laws  of
   13  1991,  as amended.   The department of transportation shall provide such
   14  information to the municipalities as may be necessary  to  maintain  the
   15  federal  tax  exempt  status  of  any bonds, notes, or other obligations
   16  issued by such municipalities to provide for the  non-federal  share  of
   17  the  cost  of  projects  pursuant  to chapter 330 of the laws of 1991 or
   18  section 80-b of the highway law.
   19    The program authorized pursuant to section 15 of chapter  329  of  the
   20  laws  of 1991, as added by section 9 of chapter 330 of the laws of 1991,
   21  as amended, shall additionally make payments for reimbursement according
   22  to the following schedule:
   23                 State Fiscal Year             Amount
   24                 2001-02                       $39,700,000
   25                 2002-03                       $39,700,000
   26                 2003-04                       $39,700,000
   27                 2004-05                       $39,700,000
   28    (b) Two  hundred  seventeen  million  nine  hundred  thousand  dollars
   29  ($217,900,000) to counties, cities, towns and villages for reimbursement
   30  of  eligible  costs  of  local  highway  and bridge projects pursuant to
   31  sections 16 and 16-a of chapter 329 of the laws of  1991,  as  added  by
   32  section  9  of  chapter  330  of  the  laws of 1991, as amended. For the
   33  purposes of computing allocations to municipalities, the amount distrib-
   34  uted pursuant to section 16 of chapter 329 of the laws of 1991 shall  be
   35  deemed  to  be $114,188,000.  The amount distributed pursuant to section
   36  16-a of chapter  329  of  the  laws  of  1991  shall  be  deemed  to  be
   37  $103,712,000.  Notwithstanding  the provisions of any general or special
   38  law, the amounts deemed distributed in accordance  with  section  16  of
   39  chapter  329  of the laws of 1991 shall be adjusted so that such amounts
   40  will not be less than 78.750 percent of the "funding level"  as  defined
   41  in  subdivision 5 of section 10-c of the highway law for each such muni-
   42  cipality. In order to achieve the objectives of section  16  of  chapter
   43  329  of the laws of 1991, to the extent necessary, the amounts in excess
   44  of 78.750 percent of the funding level to be deemed distributed to  each
   45  municipality under this paragraph shall be reduced in equal proportion.
   46    The program authorized pursuant to sections 16 and 16-a of chapter 329
   47  of the laws of 1991, as added by section 9 of chapter 330 of the laws of
   48  1991,  as  amended,  shall  additionally make payments for reimbursement
   49  according to the following schedule:
   50                 State Fiscal Year             Amount
   51                 2001-02                       $217,900,000
   52                 2002-03                       $217,900,000
   53                 2003-04                       $217,900,000
   54                 2004-05                       $217,900,000
   55    § 4. This act shall take effect April 1, 2000.

       S. 6292                            92                            A. 9292

    1    § 2. Severability clause. If any clause, sentence, paragraph, subdivi-
    2  sion, section or part contained  in  any  part  of  this  act  shall  be
    3  adjudged  by  any  court  of  competent jurisdiction to be invalid, such
    4  judgment shall not affect, impair, or invalidate the remainder  thereof,
    5  but  shall  be  confined in its operation to the clause, sentence, para-
    6  graph, subdivision, section  or  part  contained  in  any  part  thereof
    7  directly  involved  in the controversy in which such judgment shall have
    8  been rendered. It is hereby declared to be the intent of the legislature
    9  that this act would have been enacted even if  such  invalid  provisions
   10  had not been included herein.
   11    §  3.  This  act shall take effect immediately provided, however, that
   12  the applicable effective date for Parts A through L of this act shall be
   13  as specifically set forth in the last section of such Part.