RETRIEVE BILL Health MHEC - 0102


     Legislative Bill Drafting Commission
                  12021-01-1

     S.        --------
                SENATE
               --------

     IN SENATE--Introduced by Sen

     --read twice and ordered printed,
     and when printed to be committed
     to the Committee on

               -------- A.
               ASSEMBLY
               --------

     IN ASSEMBLY--Introduced by M. of A.

     --read  once  and  referred  to  the
     Committee on

     *BUDGBI*
     (Enacts  provisions of law to imple-
     ment the 2001 - 2002 health,  mental
     hygiene  and  environmental conserva-
     tion budget pursuant to Article 7 of
     the Constitution)

                   --------

     Art 7: health, ment hyg, en con

                    AN ACT

     to amend the environmental conserva-
     tion 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 hazard-
     ous waste  disposal  sites  and  the
     cleanup  and  removal  of  petroleum
     discharges, and  to  repeal  section
     27-1316 of the environmental conser-
     vation law and section 1389-e of the
     public  health law relating thereto;

                                         2                         12021-01-1

     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;  to  amend  the tax law, in
     relation to tax credits  for  brown-
     field   redevelopment  and  for  the
     development  of  remediated   brown-
     fields, and providing for the repeal
     of  certain  provisions of the state
     finance   law   upon   certification
     provided   by   subdivision   15  of
     section 97-b of  such  law  (A);  to
     amend the environmental conservation
     law  and  the  state finance law, in
     relation to requirements  for  envi-
     ronmental  restoration projects (B);
     to amend the state finance law,  the
     environmental  conservation  law and
     the tax  law,  in  relation  to  the
     environmental  protection  fund, and
     repealing subdivision 7  of  section
     92-s of the state finance law relat-
     ing  to  the  application of certain
     state assistance  payments  (C);  to
     amend the environmental conservation
     law,  in relation to the revision of
     pesticides applicator  certification
     fees (D); to amend the environmental
     conservation   law   and  the  state
     finance law, in relation to  hunting
     and  fishing licenses, and to repeal
     certain provisions of  the  environ-
     mental   conservation   law  related
     thereto (E); to amend  the  environ-
     mental conservation law, in relation
     to surf clams and ocean quahogs (F);
     to  amend the real property tax law,
     in relation to  reimbursing  locali-
     ties  for tax revenue losses (G); to
     amend  the  parks,  recreation   and
     historic  preservation  law  and the
     vehicle and traffic law, in relation
     to snowmobile fees and  trails  (H);
     to  amend  the  vehicle  and traffic
     law, in relation to  increasing  the
     triennial  fee for registration of a
     vessel (I); to amend  chapter  2  of
     the   laws  of  1998,  amending  the
     public  health   law,   the   social
     services  law  and the insurance law
     relating  to  expanding  the   child
     health  insurance  plan, in relation
     to extending the provisions thereof;

                                         3                         12021-01-1

     chapter 474 of  the  laws  of  1996,
     amending the education law and other
     laws  relating to rates for residen-
     tial   health  care  facilities,  in
     relation to extending the effective-
     ness  of  such  rates;  the   social
     services law, in relation to expand-
     ing  Medicaid  coverage;  the public
     health law, in relation to rates  of
     payment  for residential health care
     facilities; chapter 483 of the  laws
     of  1978, amending the public health
     law relating to rates of payment for
     residential health care  facilities,
     in relation to making the provisions
     thereof  permanent;  chapter  904 of
     the  laws  of  1984,  amending   the
     public  health  law  and  the social
     services law relating to encouraging
     comprehensive  health  services,  in
     relation to extending the provisions
     thereof  (J); to amend the executive
     law, in relation to the program  for
     elderly   pharmaceutical   insurance
     coverage (K); to  amend  the  public
     health   law,  in  relation  to  the
     establishment of a quality  of  care
     improvement  fund  account  for  the
     benefit of residential  health  care
     facilities (L); to amend chapter 170
     of  the  laws  of  1994 amending the
     executive law relating to creating a
     naturally    occurring    retirement
     community supportive service program
     and providing for the repeal of such
     provisions  upon expiration thereof,
     in  relation  to   extending   until
     December  31, 2003 the effectiveness
     of certain legislative findings  and
     section  536-g  of the executive law
     relating to  the  creation  of  such
     program  (M);  to  amend  the mental
     hygiene  law,  in  relation  to  the
     reinvestment  of funds into communi-
     ty-based programs for  persons  with
     serious  mental  illness,  including
     children and adolescents with  seri-
     ous  emotional  disturbances,  based
     upon inpatient bed closures and  the
     re-location  or closure of state-op-
     erated   psychiatric   centers;   to
     provide   community   mental  health
     support and  workforce  reinvestment
     by redirecting state savings to fund
     fee  increases  and  cost  of living

                                         4                         12021-01-1

     adjustments  for  certain   existing
     community-based     mental    health
     services;   to   establish   certain
     state-operated  services; to transi-
     tion the resources for shared  staff
     services  to  the local auspices; to
     provide for the  repeal  of  certain
     provisions  upon  expiration thereof
     (N); and to amend the mental hygiene
     law, in relation to eliminating  the
     Taconic  Developmental  Disabilities
     Services Office (O)

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

                                         5                         12021-01-1

  1    Section  1.   This act enacts into law major components of legislation

  2  which are necessary to implement the state fiscal plan for the 2001-2002

  3  state fiscal year.  Each component is wholly  contained  within  a  Part

  4  identified  as Parts A through O. 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. Subdivision 2  of  section  17-1009  of  the  environmental

 14  conservation  law,  as  amended  by  chapter  83 of the laws of 1995, is

 15  amended to read as follows:

 16    2. All owners shall register the facility  with  the  department.  The

 17  department  is  authorized to assess a fee according to a schedule based

 18  on the size and type of  facility,  not  to  exceed  two  hundred  fifty

 19  dollars per facility. Such fee shall be paid at the time of registration

 20  or  registration renewal. Registration shall be renewed every five years

 21  or whenever title to a facility is transferred, whichever occurs  first.

 22  All  fees  collected  pursuant to this subdivision shall be deposited in

 23  the New York environmental protection and spill compensation fund estab-

 24  lished pursuant to section one hundred seventy-nine  of  the  navigation

 25  law.    The  department  may waive payment of the registration fee for a

                                         6                         12021-01-1

  1  facility at which the tanks are to be removed or  otherwise  permanently

  2  taken out of service and the facility is the subject of:

  3    (a) An "environmental restoration project," as such term is defined in

  4  subdivision  seven  of section 56-0101 of this chapter, implemented by a

  5  municipality, the cost of which is payable in part by the state pursuant

  6  to a contract authorized by section 56-0503 of this chapter;

  7    (b) An "inactive hazardous waste disposal site remedial  program,"  as

  8  such  term  is  defined  in subdivision three of section 27-1301 of this

  9  chapter, implemented by the department, the cost of which is paid by the

 10  state according to statute;

 11    (c) A "hazardous waste site remediation  project,"  as  such  term  is

 12  defined  in  subdivision nine of section 52-0101 of this chapter, imple-

 13  mented by a municipality, the cost of which is payable in  part  by  the

 14  state pursuant to a contract authorized by section 52-0303 of this chap-

 15  ter;

 16    (d) Any remediation implemented pursuant to an order or agreement with

 17  the  department by any person who is not responsible for the disposal of

 18  hazardous waste or the discharge of petroleum  according  to  applicable

 19  principles of statutory or common law liability, or who is liable solely

 20  as  a result of ownership or operation of the facility subsequent to the

 21  disposal of hazardous waste or the discharge of petroleum; or

 22    (e) Any "cleanup and removal," as such term is defined in  subdivision

 23  four  of  section  one hundred seventy-two of the navigation law, imple-

 24  mented by the department, the cost of which is paid by the state accord-

 25  ing to statute.

 26    § 2. Subdivision 3 of section 27-0923 of the  environmental  conserva-

 27  tion  law,  as  added  by chapter 38 of the laws of 1985, paragraph d as

                                         7                         12021-01-1

  1  added by chapter 512 of the laws of 1986 and paragraph  e  as  added  by

  2  chapter 423 of the laws of 1990, is amended to read as follows:

  3    3.  a.  Notwithstanding any provision of this section to the contrary,

  4  no special assessment  shall  be  imposed  under  this  section  on  the

  5  resource  recovery  of  any hazardous waste; provided, however, that any

  6  materials remaining from resource recovery which  are  hazardous  wastes

  7  and  which  are subsequently disposed of, treated, or incinerated, shall

  8  be subject to the special  assessments  imposed  by  this  section.  For

  9  purposes  of  this  section,  resource  recovery  shall  not include the

 10  removal of water from a hazardous waste.

 11    b. In the case of a fraction of a ton, the special assessments imposed

 12  by this section shall be the same fraction of the amount of such special

 13  assessment imposed on a whole ton.

 14    c. For the purpose of this  section,  generation  of  hazardous  waste

 15  shall not include retrieval or creation of hazardous waste which must be

 16  disposed  of  due to remediation of an inactive hazardous waste disposal

 17  site in New York state as defined in section 27-1301  of  this  chapter 

 18  under  an  order  of  or agreement with the department pursuant to title

 19  thirteen or title fourteen of this article, or under a contract with the

 20  department pursuant to title five of article fifty-six of this chapter.

 21    d. No portion of the special assessments collected  pursuant  to  this

 22  section  shall  be  used for any purpose if such use, under federal law,

 23  would preclude the collection of such special assessment.

 24    e. Notwithstanding any provision of this section to the contrary,  the

 25  actual  method utilized to dispose of or treat any hazardous waste shall

 26  govern the determination of  the  rate  per  ton  applicable  under  the

 27  special  assessments  imposed  by  this  section, even if such hazardous

 28  waste was designated  for  removal,  removed,  stored  or  received  for

                                         8                         12021-01-1

  1  disposal  or  treatment  by  a method different than the method actually

  2  utilized. Where any such special assessment with respect to any  hazard-

  3  ous  waste  is reported and paid on the basis of a rate per ton which is

  4  greater  than  the rate per ton applicable to the actual method utilized

  5  to dispose of or treat such hazardous waste, the difference between  the

  6  amount  reported  and  paid  and  the  amount due using the rate per ton

  7  applicable to the actual method utilized shall be considered an overpay-

  8  ment of such  special  assessment.  The  commissioner  of  taxation  and

  9  finance  shall  credit or refund such overpayment in the manner provided

 10  and subject to the conditions contained in article twenty-seven  of  the

 11  tax law, as incorporated by subdivision six of this section.

 12    §  3.  Subdivisions 1, 3 and 4 of section 27-1301 of the environmental

 13  conservation law, subdivision 1 as amended by chapter 857 of the laws of

 14  1982 and subdivisions 3 and 4 as added by chapter 282  of  the  laws  of

 15  1979, are amended to read as follows:

 16    1. "Hazardous waste" means a waste which appears on the list or satis-

 17  fies  the  characteristics  promulgated  by the commissioner pursuant to

 18  section 27-0903 of this  chapter and, until, but not after, the  promul-

 19  gation  of such list, a waste or combination of wastes, which because of

 20  its quantity, concentration, or physical, chemical or infectious charac-

 21  teristics may:

 22    a. Cause, or significantly contribute to an increase in  mortality  or

 23  an   increase  in  serious  irreversible  or  incapacitating  reversible

 24  illness; or

 25    b. Pose a substantial present or potential hazard to human  health  or

 26  the  environment  when improperly treated, stored, transported, disposed

 27  or otherwise managed  article and any substance  which  appears  on  the

                                         9                         12021-01-1

  1  list  promulgated pursuant to section 37-0103 of this chapter; provided,

  2  however, that the term "hazardous waste" does not include:

  3    a.  Natural gas, natural gas liquids, liquefied natural gas, synthetic

  4  gas usable for fuel, or mixtures of natural gas and such synthetic  gas;

  5  nor

  6    b.  The  residue of emissions from the engine exhaust of a motor vehi-

  7  cle, rolling  stock,  aircraft,  vessel,  or  pipeline  pumping  station

  8  engine; nor

  9    c. Source, byproduct, or special nuclear material from a nuclear inci-

 10  dent,  as  those  terms are defined in the Atomic Energy Act of 1954, if

 11  such release is  subject  to  requirements  with  respect  to  financial

 12  protection  established  under  section 170 of such act (42 U.S.C. 2210)

 13  or, for the purpose of section 104 of  the  comprehensive  environmental

 14  response, compensation and liability act of 1980 (42 U.S.C. 9604) or any

 15  other response action, any source, byproduct, or special nuclear materi-

 16  al from any processing site designated under section 102(a)(1) or 302(a)

 17  of  the  Uranium  Mill Tailings Radiation Control Act of 1978 (42 U.S.C.

 18  7912(a)(1) or 7942(a)); nor

 19    d. Petroleum as defined in section  one  hundred  seventy-two  of  the

 20  navigation  law,  even  if appearing on the list promulgated pursuant to

 21  section 37-0103 of this chapter.

 22    3. "Inactive hazardous waste disposal  site  remedial  program"  means

 23  activities  undertaken  to  eliminate, remove, abate, control or monitor

 24  health and/or environmental hazards or potential hazards  in  connection

 25  with  inactive  hazardous waste disposal sites or to treat or dispose of

 26  wastes and waste contaminated materials from such sites  including,  but

 27  not limited to, grading, contouring, trenching, grouting, capping, exca-

 28  vation,   transporting,  incineration,  chemical  treatment,  biological

                                        10                         12021-01-1

  1  treatment or construction of leachate collection and  treatment  facili-

  2  ties.    The  department may include institutional controls and/or engi-

  3  neering controls as components of an inactive hazardous  waste  disposal

  4  site  remedial program but only if the owner of such real property annu-

  5  ally submits to the department  a  written  statement  certifying  under

  6  penalty  of  perjury  that  the  institutional  controls and engineering

  7  controls employed to remediate such contamination are unchanged from the

  8  previous certification and that nothing has occurred that would  consti-

  9  tute  a violation of any of such controls, and gives access to such real

 10  property reasonable under the circumstances to evaluate continued  main-

 11  tenance  of such controls. The department shall establish and maintain a

 12  database with relevant information on such controls and shall make  such

 13  information  available for public inspection at the office of the county

 14  clerk or register for each county and at the office of  the  town  clerk

 15  for each town in Suffolk and Nassau counties.

 16    4.  "Person"  means  an  individual, trust, firm, joint stock company,

 17  corporation, partnership, association, state, municipality,  commission,

 18  political  subdivision  of  a  state,  public benefit corporation or any

 19  interstate body.

 20    a. Such term includes any  person  owning  or  operating  an  inactive

 21  hazardous  waste  disposal  site but does not include a person that is a

 22  lender that, without participating in the management of such site, holds

 23  indicia of ownership primarily to protect the security interest  of  the

 24  person  in such site; nor does it include a person that is a lender that

 25  did not participate in management of such  site  prior  to  foreclosure,

 26  notwithstanding  that the person forecloses on such site and after fore-

 27  closure, sells, re-leases (in the case of a lease finance  transaction),

 28  or  liquidates  such site, maintains business activities, winds up oper-

                                        11                         12021-01-1

  1  ations, undertakes in a non-negligent manner remedial actions under  the

  2  direction  of  the  department,  with respect to such site, or takes any

  3  other measure to preserve, protect, or prepare such site prior  to  sale

  4  or  disposition, if the person seeks to sell, re-lease (in the case of a

  5  lease finance transaction), or otherwise divest the person of such  site

  6  at the earliest practicable commercially reasonable time, on commercial-

  7  ly reasonable terms, taking into account market conditions and legal and

  8  regulatory requirements. For purposes of this paragraph:

  9    (i)  the term "participate in management" means actually participating

 10  in the management or operational affairs of  such  site;  and  does  not

 11  include  merely  having  the  capacity  to influence, or the unexercised

 12  right to control, such site's operations;

 13    (ii) a person that is a lender and that  holds  indicia  of  ownership

 14  primarily  to  protect a security interest in such site shall be consid-

 15  ered to participate in management only if, while the borrower  is  still

 16  in  possession of such site, the person exercises decisionmaking control

 17  over the environmental compliance related to such site,  such  that  the

 18  person has undertaken responsibility for the hazardous waste handling or

 19  disposal practices related to such site; or exercises control at a level

 20  comparable  to  that of a manager of such site, such that the person has

 21  assumed or manifested responsibility for the overall management of  such

 22  site  encompassing  day-to-day  decisionmaking  with respect to environ-

 23  mental compliance; or over all or substantially all of  the  operational

 24  functions  (as distinguished from financial or administrative functions)

 25  of such site other than the function of environmental compliance;

 26    (iii) the term "participate in management" does not include performing

 27  an act or failing to act prior to the time at which a security  interest

 28  is created in such site;

                                        12                         12021-01-1

  1    (iv)  the  term "participate in management" does not include holding a

  2  security interest  or  abandoning  or  releasing  a  security  interest;

  3  including  in  the  terms of an extension of credit, or in a contract or

  4  security agreement relating to the extension, a covenant,  warranty,  or

  5  other  term or condition that relates to environmental compliance; moni-

  6  toring or enforcing the terms and conditions of the extension of  credit

  7  or  security interest; monitoring or undertaking one or more inspections

  8  of such site; requiring a response  action  or  other  lawful  means  of

  9  addressing  the  release  or  threatened release of a hazardous waste in

 10  connection with  such site prior to, during, or on the expiration of the

 11  term of the extension of credit; providing financial or other advice  or

 12  counseling in an effort to mitigate, prevent, or cure default or diminu-

 13  tion  in the value of such site; restructuring, renegotiating, or other-

 14  wise agreeing to alter the terms and  conditions  of  the  extension  of

 15  credit  or  security  interest; exercising forbearance; exercising other

 16  remedies that may be available under applicable law for the breach of  a

 17  term  or  condition of the extension of credit or security agreement; or

 18  conducting in a non-negligent manner a remedial action directly or under

 19  the direction of the department, if the actions do not rise to the level

 20  of participating in management (within the meaning of subparagraphs  (i)

 21  and (ii) of this paragraph);

 22    (v)  the  term  "extension  of credit" includes a lease finance trans-

 23  action in which the lessor does not initially select  such  leased  site

 24  and does not during the lease term control the daily operations or main-

 25  tenance  of  such site; or that  conforms with regulations issued by the

 26  appropriate federal banking agency (as defined in 12 USC  section  1813)

 27  or  the  superintendent  of  banks  or  with  regulations  issued by the

 28  National Credit Union Administrative Board, as appropriate;

                                        13                         12021-01-1

  1    (vi) the term "financial or administrative function" includes a  func-

  2  tion  such  as  that  of  a  credit  manager,  accounts payable officer,

  3  accounts receivable officer, personnel manager,  comptroller,  or  chief

  4  financial officer, or a similar function;

  5    (vii)  the  terms  "foreclosure"  and  "foreclose" mean, respectively,

  6  acquiring and to acquire, such site through purchase  at  sale  under  a

  7  judgment  or  decree,  power of sale, or nonjudicial foreclosure sale; a

  8  deed in lieu of foreclosure, or similar conveyance from  a  trustee;  or

  9  repossession,  if  such  site  was  security  for an extension of credit

 10  previously contracted; conveyance pursuant to  an  extension  of  credit

 11  previously  contracted,  including the termination of a lease agreement;

 12  or any other formal or informal manner by which the person acquires, for

 13  subsequent disposition, title to or possession of such site in order  to

 14  protect the security interest of the person;

 15    (viii)  the  term "lender" means an insured depository institution (as

 16  defined in 12 USC Section 1813); an insured credit union  (as defined in

 17  12 USC section 1752); a bank or association  chartered  under  the  Farm

 18  Credit Act of 1971 (12 U.S.C.  2001 et seq.); a leasing or trust company

 19  that  is  an  affiliate of an insured depository institution; any person

 20  (including a successor or assignee of any such person) that makes a bona

 21  fide extension of credit to or takes or  acquires  a  security  interest

 22  from  a nonaffiliated person; the Federal National Mortgage Association,

 23  the Federal Home Loan Mortgage  Corporation,  the  Federal  Agricultural

 24  Mortgage  Corporation,  or  any  other entity that in a bona fide manner

 25  buys or sells loans or interests in loans;  a  person  that  insures  or

 26  guarantees against a default in the repayment of an extension of credit,

 27  or  acts as a surety with respect to an extension of credit, to a nonaf-

 28  filiated person; and a person that provides  title  insurance  and  that

                                        14                         12021-01-1

  1  acquires such site as a result of assignment or conveyance in the course

  2  of underwriting claims and claims settlement;

  3    (ix)  the term "operational function" includes a function such as that

  4  of a facility or plant  manager,  operations  manager,  chief  operating

  5  officer, or chief executive officer; and

  6    (x)  the  term  "security interest" includes a right under a mortgage,

  7  deed of trust, assignment, judgment lien,  pledge,  security  agreement,

  8  factoring  agreement,  or lease and any other right accruing to a person

  9  to secure the repayment of money, the performance  of  a  duty,  or  any

 10  other obligation by a nonaffiliated person.

 11    b.  Such  term  includes  any  person  owning or operating an inactive

 12  hazardous waste disposal site but does not include the state of New York

 13  or a public corporation which acquired, and thereafter retained  without

 14  participating  in  the  management  of  such  site, ownership or control

 15  involuntarily by virtue of its function as sovereign. Neither the  state

 16  of  New  York  nor any public corporation shall incur under this chapter

 17  any liability as to matters within the jurisdiction of the department as

 18  a result of actions taken in response to an  emergency  created  by  the

 19  release  or  threatened  release  of  hazardous waste by another person,

 20  provided that such actions by the state or public  corporation  did  not

 21  constitute  reckless, willful, wanton or intentional misconduct. As used

 22  in this paragraph:

 23    (i) "public corporation" means a public corporation as defined in  the

 24  general construction law;

 25    (ii)  involuntary acquisition of ownership or control includes, but is

 26  not limited to, the following:

 27    (A) acquisitions by the state or a public corporation in its  capacity

 28  as   sovereign,   including   acquisitions   pursuant   to   abandonment

                                        15                         12021-01-1

  1  proceedings, or escheat, or any other circumstance of involuntary acqui-

  2  sition in its capacity as sovereign;

  3    (B)  acquisitions  by the state or a public corporation, or its agent,

  4  acting as a conservator or receiver pursuant to a clear and direct stat-

  5  utory mandate or regulatory authority;

  6    (C) acquisitions of assets through foreclosure and its equivalents, or

  7  otherwise, by the state or a public corporation in the course of  admin-

  8  istering a loan, loan guarantee or loan insurance program;

  9    (D)  acquisitions  by  the  state  or a public corporation pursuant to

 10  seizure or forfeiture authority; and

 11    (E) acquisitions by the state or a public corporation as the result of

 12  tax delinquency proceedings, provided, that such ownership or control is

 13  not retained primarily for investment purposes;

 14    (iii) "management participation" means that the state or public corpo-

 15  ration is actually participating  in the management or operation of  the

 16  property but does not include the mere capacity to influence, ability to

 17  influence  or unexercised right to control the operation  of the proper-

 18  ty.

 19    Nothing contained in this paragraph affects the applicability of para-

 20  graph a of this subdivision in favor of a holder of a security  interest

 21  according to the terms thereof.

 22    c.  Such  term  includes  any  person  owning or operating an inactive

 23  hazardous waste disposal site, including a fiduciary; provided, however,

 24  that such liability on the part of a  fiduciary  shall  not  exceed  the

 25  assets held in the fiduciary capacity if such person is not liable inde-

 26  pendently  of such person's ownership as a fiduciary or actions taken in

 27  a fiduciary capacity including, but not limited to, the fiduciary negli-

                                        16                         12021-01-1

  1  gently causing or contributing to the release or threatened  release  of

  2  hazardous waste at such site.

  3    (i) For purposes of this paragraph:

  4    (A)  the  term  "fiduciary"  means  a person acting for the benefit of

  5  another party as a bona fide trustee;  executor;  administrator;  custo-

  6  dian;  guardian  of estates or guardian ad litem; receiver; conservator;

  7  committee of estates of incapacitated person;  personal  representative;

  8  trustee  (including a successor  to a trustee) under an indenture agree-

  9  ment, trust agreement, lease, or similar financing agreement,  for  debt

 10  securities, certificates of interest or certificates of participation in

 11  debt  securities, or other forms of indebtedness as to which the trustee

 12  is not, in the capacity of trustee, the lender; or representative in any

 13  other capacity that  the  department,  after  providing  public  notice,

 14  determines  to be similar to the various capacities previously described

 15  in this paragraph; and does not include either a person that  is  acting

 16  as  a  fiduciary  with respect to a trust or other fiduciary estate that

 17  was organized for the primary purpose of, or  is  engaged  in,  actively

 18  carrying  on  a  trade  or business for profit unless the trust or other

 19  fiduciary estate was created as part of, or to facilitate, one  or  more

 20  estate  plans  or  because  of  the  incapacity of a natural person or a

 21  person that acquires ownership or control of a property with the  objec-

 22  tive purpose of avoiding liability of the person or any other person.

 23    (B)  the  term  "fiduciary capacity" means the capacity of a person in

 24  holding title to a property, or otherwise having control of or an inter-

 25  est in a property, pursuant to the exercise of the  responsibilities  of

 26  the person as a fiduciary.

 27    (ii)  Nothing  in  this  paragraph affects the rights or immunities or

 28  other defenses that are available under law that  are  applicable  to  a

                                        17                         12021-01-1

  1  person  subject  to  this  subdivision;  or  creates any liability for a

  2  person or a private right of action against a  fiduciary  or  any  other

  3  person.

  4    (iii)  Nothing  in  this  paragraph applies to a person if that person

  5  acts in a capacity other than that of a fiduciary or  in  a  beneficiary

  6  capacity  and  in  that capacity, directly or indirectly benefits from a

  7  trust or fiduciary relationship; or is a  beneficiary  and  a  fiduciary

  8  with  respect  to the same fiduciary estate and as a fiduciary, receives

  9  benefits that exceed customary or  reasonable  compensation,  and  inci-

 10  dental benefits, permitted under other applicable law.

 11    (iv)  This  paragraph  does  not  preclude  a claim under this chapter

 12  against the assets of the estate or trust administered by the fiduciary;

 13  or a nonemployee agent or independent contractor retained by  a  fiduci-

 14  ary.

 15    d.  Such  term  includes  any  person  owning or operating an inactive

 16  hazardous waste disposal site, including an industrial development agen-

 17  cy created under the general municipal law, other than  one  that  holds

 18  bare  legal  title  to  such  site;  has not participated with any party

 19  responsible under law for the remediation of contamination  in,  on,  or

 20  from  such  site  to  attempt  to  have  such a party avoid its remedial

 21  liability; has not exercised any contractual rights it may have or  had,

 22  if  any,  under  the  lease, guarantee, or any other financing agreement

 23  pursuant to which the industrial development agency would assume control

 24  over the actual operation of the site; and has not taken  possession  or

 25  control  of  the  site.  Nothing in this paragraph affects the rights or

 26  immunities or other defenses that  are  available  under  law  that  are

 27  applicable to an industrial development agency; or creates any liability

                                        18                         12021-01-1

  1  for a person or a private right of action against an industrial develop-

  2  ment agency or any other person.

  3    §  4.  Subdivision 1 of section 27-1303 of the environmental conserva-

  4  tion law, as added by chapter 282 of the laws of  1979,  is  amended  to

  5  read as follows:

  6    1.     Each  a.   For a period of one year after the effective date of

  7  the chapter of the laws of two thousand one amending  this  subdivision,

  8  each  county shall, for the purpose of locating inactive hazardous waste

  9  disposal sites as that term was defined on January first,  two  thousand

 10  one,  survey its jurisdiction to determine the existence and location of

 11  suspected inactive hazardous waste disposal  sites  and  shall ,  within

 12  four  months  of  the effective date of this title,  annually thereafter

 13  submit a report to the department describing the location of  each  such

 14  suspected site and the reasons for such suspicion.

 15    b.  Commencing one year after the effective date of the chapter of the

 16  laws of two thousand one which added this paragraph, each county  shall,

 17  for  the  purpose  of  locating inactive hazardous waste disposal sites,

 18  survey its jurisdiction to  determine  the  existence  and  location  of

 19  suspected  inactive  hazardous  waste  disposal sites and shall annually

 20  thereafter submit a report to the department describing the location  of

 21  each such suspected site and the reasons for such suspicion.

 22    §  5.  Paragraph b of subdivision 4 of section 27-1305 of the environ-

 23  mental conservation law, as amended by chapter 857 of the laws  of  1982

 24  and the opening paragraph as amended by chapter 649 of the laws of 1988,

 25  is amended to read as follows:

 26    b.  The  department  shall, as part of the registry, assess and, based

 27  upon new information received, reassess by March  thirty-first  of  each

 28  year,  in  cooperation  with the department of health, the relative need

                                        19                         12021-01-1

  1  for action at each site to  remedy  environmental  and  health  problems

  2  resulting from the presence of hazardous wastes at such sites; provided,

  3  however,  that  if  at  the time of such assessment or reassessment, the

  4  department  has not placed a site in classification 1 or 2, as described

  5  in subparagraphs one and two of this paragraph, and  such  site  is  the

  6  subject of negotiations for, or implementation of, a voluntary agreement

  7  pursuant  to  title  fourteen  of  this  article,  obligating the person

  8  subject to such agreement to, at a minimum, eliminate  or  mitigate  all

  9  significant  threats  to  the public health and environment posed by the

 10  hazardous waste pursuant to such agreement, the department  shall  defer

 11  its  assessment or reassessment during the period such person is engaged

 12  in good faith negotiations to enter into such an agreement and,  follow-

 13  ing its execution, is in compliance with the terms of such agreement and

 14  shall assess or reassess such site upon completion of remediation to the

 15  department's  satisfaction.  In  making  its assessments, the department

 16  shall place every site in one of the following classifications:

 17    (1) Causing or presenting an imminent danger of  causing  irreversible

 18  or  irreparable  damage  to  the public health or environment--immediate

 19  action required;

 20    (2) Significant threat to the  public  health  or  environment--action

 21  required;

 22    (3)  Does  not  present  a  significant threat to the public health or

 23  environment--action may be deferred;

 24    (4) Site properly closed--requires continued management;

 25    (5) Site properly closed, no evidence of present or potential  adverse

 26  impact--no further action required.

                                        20                         12021-01-1

  1    §  6. The opening paragraph of subdivision 5 of section 27-1305 of the

  2  environmental conservation law, as added by chapter 857 of the  laws  of

  3  1982, is amended to read as follows:

  4    The  department shall , as soon as possible but in no event later than

  5  January first,  nineteen  hundred  eighty-four,   annually  prepare  and

  6  submit in writing  a  an updated "state inactive hazardous waste remedi-

  7  al  plan," hereinafter referred to as "the plan"  to the state superfund

  8  management board. Such board shall then approve of the plan or make such

  9  modification as it is empowered to do pursuant  to  section  27-1319  of

 10  this  chapter  and  submit  the  approved plan or modified plan , to the

 11  governor and the legislature on or before  March first, nineteen hundred

 12  eighty-four  July first of each year.   In   proposing,   preparing  and

 13  compiling and updating the plan, the department shall:

 14    §  7.  Subdivisions 3, 4 and 5 of section 27-1309 of the environmental

 15  conservation law, as amended by chapter 857 of the  laws  of  1982,  are

 16  amended to read as follows:

 17    3.  Any  duly  designated officer or employee of the department, or of

 18  any state agency, and any agent, consultant, contractor or other person,

 19  including an employee, agent, consultant or contractor of a  responsible

 20  person acting at the direction of the department, so authorized in writ-

 21  ing by the commissioner, may enter any inactive hazardous waste disposal

 22  site  and  areas  near such site and inspect and take samples of wastes,

 23  soils, air, surface  water  and  groundwater.  In  order  to  take  such

 24  samples,  the department or authorized person may utilize or cause to be

 25  utilized such sampling methods as it determines to be necessary  includ-

 26  ing, but not limited to, soil borings and monitoring wells.

 27    4.  The  department  or  authorized person shall not take any samples,

 28  involving the substantial disturbance of the ground surface of any prop-

                                        21                         12021-01-1

  1  erty unless it has made a reasonable effort to identify the owner of the

  2  property and to notify such owner of the  department's  intent  to  take

  3  such  samples.  If  the  owner  can  be identified, the department shall

  4  provide  such  owner  with a minimum of ten days written notice of  its 

  5  the intent to take such samples unless the commissioner makes a  written

  6  determination  that such ten day notice will not allow the department to

  7  protect the environment or public health, in which case two days written

  8  notice shall be sufficient. Any inspection of the property and each such

  9  taking of samples shall take place at  reasonable  times  and  shall  be

 10  commenced  and  completed  with  reasonable  promptness. If any officer,

 11  employee, agent, consultant, contractor, or other person  so  authorized

 12  in  writing by the commissioner obtains any samples prior to leaving the

 13  premises he shall give to the owner or operator a receipt describing the

 14  sample obtained and, if requested, a portion of  such  sample  equal  in

 15  volume  or  weight  to  the portion retained. If any analysis is made of

 16  such samples, a copy of the results of such analysis shall be  furnished

 17  promptly  to  the owner or operator. Upon the completion of all sampling

 18  activities, the department or authorized person shall remove,  or  cause

 19  to  be  removed,  all equipment and well machinery and return the ground

 20  surface of the property to its condition prior to such  sampling  unless

 21  the  department  or  authorized  person  and the owner of property shall

 22  otherwise agree.

 23    5. The expense of any such sampling and analysis shall be paid by  the

 24  department,  but  may  be  recovered  from any responsible person in any

 25  action or proceeding brought pursuant  to  this  title  or  common  law;

 26  provided,  that  if  the  person  so  authorized  in writing shall be an

 27  employee, agent, consultant or contractor of a responsible person acting

                                        22                         12021-01-1

  1  at the direction of the department, then the expense of any such  sampl-

  2  ing and analysis shall be paid by the responsible person.

  3    §  8.  Paragraph b of subdivision 1 of section 27-1313 of the environ-

  4  mental conservation law is relettered paragraph c and a new paragraph  b

  5  is added to read as follows:

  6    b.  The department shall have the authority to require the development

  7  and  implementation  of  a  department-approved inactive hazardous waste

  8  disposal site remedial program; provided, however, that  the  department

  9  will  use  the  following  in  developing and implementing such remedial

 10  program:

 11    (i) The objective of such remedial program shall be the protection  of

 12  the  public  health and environment, with the minimum objective being to

 13  eliminate or mitigate all significant threats to the public  health  and

 14  environment  presented  by hazardous waste through proper application of

 15  scientific and engineering principles and such remedial program must  be

 16  selected upon due consideration of the following factors:

 17    (A)  conformance to standards and criteria that are generally applica-

 18  ble, consistently applied, and officially promulgated, that  are  either

 19  directly  applicable,  or that are not directly applicable but are rele-

 20  vant and appropriate, unless good cause exists why conformity should  be

 21  dispensed  with,  and  with consideration being given to guidance deter-

 22  mined, after the exercise of engineering judgment, to be applicable;

 23    (B) overall protectiveness of the public health and environment;

 24    (C) short-term effectiveness;

 25    (D) long-term effectiveness;

 26    (E) reduction  of  toxicity,  mobility,  and  volume  with  treatment;

 27  addressing  a  hot  spot of hazardous waste that permanently and signif-

 28  icantly reduces the volume, toxicity, and/or mobility of hazardous waste

                                        23                         12021-01-1

  1  is to be preferred over a method that does not do so. The  hierarchy  of

  2  remedial  technologies  shall  be  as set forth under section 27-0105 of

  3  this article;

  4    (F) cost;

  5    (G) implementability;

  6    (H) community acceptance; and

  7    (I) land use: the current, intended, and reasonably anticipated future

  8  land uses for the property and its surroundings, if ascertainable.

  9    (ii)  Notwithstanding  anything  to the contrary in this paragraph, at

 10  sites listed pursuant to section 27-1305 of this title as classification

 11  1 or 2, there shall be a presumption for soil remediation to soil  cate-

 12  gory  2  for  residential  purposes  pursuant to section 27-1316 of this

 13  title where such  remediation  is  conducted  by  a  person  responsible

 14  according  to applicable principles of statutory or common law liability

 15  at a site that is not in active use for industrial  or  commercial  uses

 16  and is adjacent to residential uses. This presumption may be overcome by

 17  written  findings  of  the commissioner after an opportunity for citizen

 18  participation consistent with this title.

 19    § 9. Paragraph a of subdivision 3 and subdivisions 4 and 8 of  section

 20  27-1313  of  the environmental conservation law, paragraph a of subdivi-

 21  sion 3 as amended and subdivision 8 as added by chapter 857 of the  laws

 22  of  1982  and subdivision 4 as added by chapter 282 of the laws of 1979,

 23  are amended to read as follows:

 24    a. Whenever the commissioner finds that hazardous wastes at  an  inac-

 25  tive  hazardous  waste  disposal site constitute a significant threat to

 26  the environment, he may: (i) order the owner of  such  site  and/or  any

 27  person  responsible  for  the  disposal of hazardous wastes at such site

 28   (i)  to develop an inactive  hazardous  waste  disposal  site  remedial

                                        24                         12021-01-1

  1  program,  subject  to  the approval of the department, at such site, and

  2   (ii)  to implement such program within reasonable time limits specified

  3  in the order; or (ii) develop and implement a remedial program for  such

  4  site after a reasonable, but unsuccessful, attempt to obtain the consent

  5  of  the  owner and/or any person responsible to the issuance of an order

  6  to develop and implement such remedial program for such site.

  7    Any remedial program developed and implemented  pursuant  to  subpara-

  8  graph  (i)  or  (ii)  of  this  paragraph shall provide for a reasonable

  9  opportunity for submission of written and oral comments regarding, at  a

 10  minimum,  the  proposed  remedial  program;  and in accordance with such

 11  regulations as it may promulgate, the department may, subject to  appro-

 12  priation  therefor, make grants of up to fifty thousand dollars per site

 13  available to a municipality which is not responsible according to appli-

 14  cable principles of statutory  or  common  law  liability,  a  community

 15  group,  and/or  such a municipality and a community group in partnership

 16  with each other, and which may be affected by a  release  or  threatened

 17  release  of  hazardous  waste  disposed  at such site in order to obtain

 18  technical assistance in interpreting existing information with regard to

 19  the nature and extent of the contamination at the site and the  develop-

 20  ment  and implementation of such remedial program. To qualify to receive

 21  such assistance, a community group must demonstrate that its  membership

 22  represents  the  interests  of the community affected by such site and a

 23  municipality must demonstrate financial  need.  The  proposed  recipient

 24  must  also  contribute a percentage of the total grant, to be determined

 25  by the department in accordance with such regulations as it may  promul-

 26  gate,  which may be satisfied through money or the cash value of donated

 27  supplies or services. Grants awarded under this section may not be  used

 28  for  the  purpose of collecting field sampling data.  Provided, however,

                                        25                         12021-01-1

  1  that in the event the commissioner of health shall issue an order pursu-

  2  ant to subdivision three of section one thousand three  hundred  eighty-

  3  nine-b  of  the  public  health  law,  such order of the commissioner of

  4  health shall supersede any order issued hereunder.

  5    4.  a. Any order issued pursuant to subdivision three of this section,

  6  other than one issued on consent of the person who  is  the  subject  of

  7  such  order, shall be issued only after notice and the opportunity for a

  8  hearing is provided to persons who may be the subject of such order. The

  9  commissioner shall determine which persons are responsible  pursuant  to

 10  said  subdivision  according  to  applicable  principles of statutory or

 11  common law liability. Such persons shall be entitled to raise any statu-

 12  tory or common law defense at any such hearing and such  defenses  shall

 13  have  the same force and effect at such hearings as they would have in a

 14  court of law. In the event a hearing is held, no order shall  be  issued

 15  by  the  commissioner  under  subdivision  three of this section until a

 16  final decision has been rendered. Any such  order  shall  be  reviewable

 17  pursuant  to  article  seventy-eight of the civil practice law and rules

 18  within thirty days after service of such  order.  The  commissioner  may

 19  request the participation of the attorney general in such hearings.

 20    b.  There shall be no liability under this section for a person other-

 21  wise liable who can establish by a preponderance of  the  evidence  that

 22  the  significant  threat  to  the  environment attributable to hazardous

 23  waste disposed at an inactive hazardous waste disposal site  was  caused

 24  solely by an act of God; an act of war; or an act or omission of a third

 25  party  other than an employee or agent of such person, or than one whose

 26  act or omission occurs in connection  with  a  contractual  relationship

 27  existing directly or indirectly, with such person (except where the sole

 28  contractual  arrangement  arises  from a published tariff and acceptance

                                        26                         12021-01-1

  1  for carriage by a common carrier or rail), if such person establishes by

  2  a preponderance of the evidence that such person exercised due care with

  3  respect to the hazardous waste concerned, taking into consideration  the

  4  characteristics  of such hazardous waste, in light of all relevant facts

  5  and circumstances, and took  precautions  against  foreseeable  acts  or

  6  omissions  of any such third party and the consequences that could fore-

  7  seeably result from such acts or omissions; or any combination of  them.

  8  For  purposes  of  this paragraph, the term, "contractual relationship,"

  9  includes, but is not limited to, land contracts, deeds or other  instru-

 10  ments  transferring  title  or  possession,  unless the real property on

 11  which the site concerned is located was acquired by  such  person  after

 12  the  disposal  or  placement  of  the hazardous waste on, in, or at such

 13  site, and such person establishes  one  or  more  of  the  circumstances

 14  described  in  subparagraph  (i),  (ii)  or (iii) of this paragraph by a

 15  preponderance of the evidence:

 16    (i) At the time such person acquired the site such person did not know

 17  and has no reason to know that any hazardous waste which is the  subject

 18  of  the  significant  threat determination was disposed of on, in, or at

 19  the site. To establish that such person has  no  reason  to  know,  such

 20  person must have undertaken, at the time of acquisition, all appropriate

 21  inquiry  into the previous ownership and uses of the property consistent

 22  with good commercial or customary practice  in  an  effort  to  minimize

 23  liability.  For  purposes  of  the  preceding sentence, the commissioner

 24  shall take into account any specialized knowledge or experience  on  the

 25  part of such person, the relationship of the purchase price to the value

 26  of  the  property if uncontaminated, commonly known or reasonably ascer-

 27  tainable information about the property, the obviousness of the presence

                                        27                         12021-01-1

  1  or likely presence of contamination at the property, and the ability  to

  2  detect such contamination by appropriate inspection; or

  3    (ii)  Such  person  is  a government entity which acquired the site by

  4  escheat, or through any other involuntary transfer or acquisition; or

  5    (iii) Such person acquired the site by  inheritance  or  bequest,  and

  6  that  such person exercised due care with respect to the hazardous waste

  7  concerned, taking into consideration the characteristics of such hazard-

  8  ous waste, in light of all relevant facts  and  circumstances  and  took

  9  precautions  against  foreseeable  acts  or  omissions of any such third

 10  party and the consequences that could foreseeably result from such  acts

 11  or omissions.

 12    Nothing in this paragraph shall diminish the liability of any previous

 13  owner  or  operator of the site who would otherwise be liable under this

 14  section. Notwithstanding this paragraph, if such person obtained  actual

 15  knowledge  of  the release or threatened release of a hazardous waste at

 16  the site when such person owned the site and  then  subsequently  trans-

 17  ferred  ownership  of the site to another person without disclosing such

 18  knowledge, such person shall be treated as a person responsible for  the

 19  disposal  of hazardous waste at the site and no defense under this para-

 20  graph shall be available to such person. Nothing in this paragraph shall

 21  affect the liability under this section of a person who, by any  act  or

 22  omission,  caused or contributed to the release or threatened release of

 23  a hazardous waste which is the subject of such  proceeding  relating  to

 24  such site.

 25    8.  Any  duly  designated officer or employee of the department or any

 26  other state agency, and  any  agent,  consultant,  contractor  or  other

 27  person,  including  an  employee,  agent,  consultant or contractor of a

 28  responsible person acting at the direction of the department, so author-

                                        28                         12021-01-1

  1  ized in writing by the commissioner, may enter  any  inactive  hazardous

  2  waste  disposal site and areas near such site to implement , pursuant to

  3  subdivision five of this section,  an inactive hazardous waste  disposal

  4  site  remedial program for such site, provided the commissioner has sent

  5  a written notice to the owners of record or any known  known   occupants

  6  of such site or nearby areas of the intended entry and work at least ten

  7  days prior to such initial entry.

  8    § 10. Section 27-1313 of the environmental conservation law is amended

  9  by adding four new subdivisions 10, 11, 12, and 13 to read as follows:

 10    10. a. If, after the commissioner makes the finding described in para-

 11  graph a of subdivision three of this section and after expending reason-

 12  able  efforts, the department is unable to obtain a voluntary commitment

 13  by the owner of an inactive hazardous waste  disposal  site  and/or  any

 14  person responsible for the disposal of hazardous wastes at such site (i)

 15  to  develop  an inactive hazardous waste disposal site remedial program,

 16  subject to the approval of the department, at such site, and/or (ii)  to

 17  implement such program within reasonable time limits, the department may

 18  undertake  such development or implementation, in which case, subject to

 19  paragraphs b and c of this subdivision, there is hereby created a  right

 20  of the state to recover in any court of competent jurisdiction from such

 21  owner  and/or  any person responsible an amount equal to all costs, both

 22  direct and indirect, respecting such site  that  the  state  shall  have

 23  incurred  plus  a penalty in an amount no less than one and no more than

 24  three times all such costs, both direct and  indirect,  that  the  state

 25  shall  have  incurred  in carrying out same. The department shall not be

 26  entitled to such a penalty unless it proves by a  preponderance  of  the

 27  evidence  that  it  has expended reasonable efforts as set forth in this

 28  paragraph. For purposes of this paragraph, the department  has  expended

                                        29                         12021-01-1

  1  "reasonable efforts" to obtain such a voluntary commitment if such owner

  2  and/or  person  responsible  is  informed in writing of the department's

  3  offer to negotiate a voluntary commitment and such owner  and/or  person

  4  responsible  does  not respond to the department's offer; or responds by

  5  refusing to negotiate; or starts to negotiate and thereafter  discontin-

  6  ues  same; or acts in bad faith in the negotiation process and continues

  7  not to make such commitment after receiving a final written notification

  8  from the department that apprises such owner and/or  person  responsible

  9  that  failure  to enter into the voluntary commitment will result in the

 10  state's recovery of all costs, both direct and indirect, respecting such

 11  site that the state shall have incurred plus a penalty in an  amount  up

 12  to  three  times,  but no less than one time, all costs, both direct and

 13  indirect, the state shall have incurred in carrying out same.

 14    b. Notwithstanding paragraph a of this subdivision, such owner  and/or

 15  person responsible shall only be liable to the state for an amount equal

 16  to  all  costs,  both direct and indirect, the state shall have incurred

 17  respecting such site if such owner and/or person responsible can  estab-

 18  lish  by  a  preponderance of the evidence that for good cause shown, it

 19  failed and refused to enter into  such  voluntary  commitment  with  the

 20  department.

 21    c.  Two  or  more owners and/or persons responsible described in para-

 22  graph a of subdivision three of  this  section  may  claim  contribution

 23  among  themselves in an action brought in a court of competent jurisdic-

 24  tion, and the amount of contribution to which any of  them  is  entitled

 25  shall  be  equal  to the excess paid by that person responsible over and

 26  above such person's equitable share of costs.  However,  the  amount  of

 27  contribution  to  which any of them is entitled shall be three times the

 28  excess paid by that person responsible  over  and  above  such  person's

                                        30                         12021-01-1

  1  equitable  share  of  costs  associated  with  the  carrying out of such

  2  person's obligations under the voluntary commitment with the  department

  3  described  in paragraph a of this subdivision if one-third of such award

  4  shall  be paid to the remedial program transfer fund under section nine-

  5  ty-seven-xxx of the state finance law and the court finds that:

  6    (i) the contribution defendant is a person responsible for such site;

  7    (ii) the  contribution  plaintiff  gave  thirty  days  notice  to  the

  8  contribution defendant of the plaintiff's intention to seek contribution

  9  in  the event that the contribution defendant declined to participate in

 10  the implementation of the contribution plaintiff's voluntary commitment;

 11    (iii) the contribution defendant failed or refused  to  enter  into  a

 12  settlement agreement with the contribution plaintiff; and

 13    (iv)  the  contribution  plaintiff entered into a voluntary commitment

 14  with the department to remediate the site.

 15    d. A person misidentified by the department as an owner and/or  person

 16  responsible  but which entered into a voluntary commitment, other than a

 17  voluntary agreement pursuant to title fourteen of this article, with the

 18  department may recover from the remedial program  transfer  fund  estab-

 19  lished by section ninety-seven-xxx of the state finance law the costs it

 20  shall have incurred that are reasonable in light of the action agreed to

 21  be undertaken.

 22    e. All monies collected by the state pursuant to this section shall be

 23  deposited into the remedial program transfer fund established by section

 24  ninety-seven-xxx of the state finance law.

 25    11.  a. Any person subject to an order issued pursuant to this section

 26  or any person that shall have entered into a  voluntary  agreement  with

 27  the  department under title fourteen of this article may seek in a court

 28  of competent jurisdiction contribution from any other person  who  is  a

                                        31                         12021-01-1

  1  person  responsible  for the disposal of hazardous wastes at an inactive

  2  hazardous waste disposal site or at an  affected  site,  as  defined  by

  3  section  27-1401  of  this article, for costs incurred in developing and

  4  implementing  a  department-approved  inactive  hazardous waste disposal

  5  site remedial program or in negotiating  and  implementing  a  voluntary

  6  agreement.  Nothing  in  this  subdivision  shall be construed to limit,

  7  affect, or impair any  protections  from  or  limitations  on  liability

  8  provided by the department or otherwise.

  9    b.  If the costs of measures undertaken at an inactive hazardous waste

 10  disposal site or at an affected  site  for  the  purpose  of  addressing

 11  hazardous  waste  or petroleum are increased because of design or imple-

 12  mentation considerations or alterations made for the purpose of accommo-

 13  dating, effecting or advancing the redevelopment or reuse of such  site,

 14  the  amount  of such increase shall not be recoverable under paragraph a

 15  of this subdivision. Examples of design or implementation considerations

 16  or alterations that may  be  made  for  the  purpose  of  accommodating,

 17  effecting or advancing the redevelopment or reuse of a site include, but

 18  are  not limited to, such measures as altering the type, amount, quality

 19  or aesthetic character of materials used in construction from the  type,

 20  amount,  quality  or aesthetic character of materials required to imple-

 21  ment a remedial program or voluntary agreement at such site.

 22    c. Any other provision of this subdivision notwithstanding,  no  costs

 23  will  be  deemed  unrecoverable  under  paragraph  a of this subdivision

 24  because they were expended to achieve a higher level of  remediation  at

 25  an  inactive  hazardous  waste  disposal  site or affected site than the

 26  level required by the department.

                                        32                         12021-01-1

  1    d. In any action or proceeding brought pursuant to  this  subdivision,

  2  the  defendant  shall  be  entitled to raise any statutory or common law

  3  defense that he may have.

  4    e.  In resolving contribution claims brought pursuant to this subdivi-

  5  sion, the court may allocate costs among liable parties using such equi-

  6  table factors as the court determines are appropriate.

  7    f. No action for  contribution  pursuant  to  this  provision  may  be

  8  commenced more than six years after the later of:

  9    (i)  the date of judgment in any action under any law, state or feder-

 10  al, respecting the costs that are the subject of the claim for  contrib-

 11  ution; or

 12    (ii)  the date of the issuance of an order or agreement by the depart-

 13  ment respecting the costs that are the subject of the claim for contrib-

 14  ution or respecting activities the conduct of which caused the  expendi-

 15  ture of the costs that are the subject of the claim for contribution.

 16    g. The court shall enter a declaratory judgment on liability for costs

 17  that  will  be  binding  on  any subsequent action or actions to recover

 18  costs incurred in implementing a department-approved inactive  hazardous

 19  waste  disposal  site  remedial  program, or in implementing a voluntary

 20  agreement under title fourteen of this article.

 21    h. Nothing contained in this subdivision shall affect  any  rights  to

 22  recovery  of  costs  to  which  any party may be entitled by contract or

 23  otherwise under law.

 24    12. a. Definition. For purposes of this subdivision, the term "natural

 25  resources" means land, fish, wildlife, biota, air, water, ground  water,

 26  drinking  water supplies, and other such resources belonging to, managed

 27  by, controlled by, or pertaining to the state of New York.

                                        33                         12021-01-1

  1    b. Liability. Any owner of an inactive hazardous waste disposal  site,

  2  and  any person responsible for the disposal of hazardous wastes at such

  3  site, who shall be liable according to applicable principles of statuto-

  4  ry or common law liability and subject to any statutory  or  common  law

  5  defense, shall be liable to the state of New York for damages for injury

  6  to,  destruction  of,  loss  of,  or  loss  of use of natural resources,

  7  including the reasonable costs of assessing  such  injury,  destruction,

  8  loss,  or loss of use resulting from the disposal of hazardous wastes at

  9  such inactive hazardous waste disposal site. Provided, that there  shall

 10  be  no such liability where the owner or other person responsible demon-

 11  strates that the injury to, destruction of, loss of, or loss of  use  of

 12  natural resources complained of were specifically identified as an irre-

 13  versible  and  irretrievable commitment of natural resources in an envi-

 14  ronmental impact statement, or other comparable environmental  analysis,

 15  and the decision to grant a permit or license authorizes such commitment

 16  of  natural  resources,  and the site was otherwise operating within the

 17  terms of its permit or license.

 18    c. Damages. The attorney general shall, at the request of the  commis-

 19  sioner  as trustee of such natural resources, commence a civil action to

 20  recover such damages on behalf of the people of the state of  New  York.

 21  All  damages  recovered  in  any  such  action shall be paid over to the

 22  commissioner for deposit to the credit of the remedial program  transfer

 23  fund  established  pursuant  to  section  ninety-seven-xxx  of the state

 24  finance law.   Any  assessment  of  damages  to  natural  resources  for

 25  purposes of this subdivision made by the commissioner in accordance with

 26  such  regulations  as  may  be promulgated under section 27-1315 of this

 27  title shall have the force and effect of  a  rebuttable  presumption  on

 28  behalf of the commissioner in any such action.

                                        34                         12021-01-1

  1    13.  The department, by and through the commissioner, shall be author-

  2  ized to exempt a person from the requirement  to  obtain  any  state  or

  3  local permit or other authorization for any activity needed to implement

  4  an  inactive  hazardous waste disposal remedial program pursuant to this

  5  title; provided, that the activity is conducted in a manner which satis-

  6  fies  all substantive technical requirements applicable to like activity

  7  conducted pursuant to a permit.

  8    § 11. The environmental conservation law is amended by  adding  a  new

  9  section 27-1314 to read as follows:

 10  § 27-1314. Covenant not to sue.

 11    1.  After  the  successful implementation of an order on consent which

 12  provides for the development and implementation of an inactive hazardous

 13  waste disposal site remedial program, the person subject  to  the  order

 14  shall  submit  to  the department a written certification prepared by an

 15  individual licensed or otherwise authorized in accordance  with  article

 16  one  hundred  forty-five of the education law to practice the profession

 17  of engineering who shall have been in charge of  the  implementation  of

 18  such  remediation undertaken pursuant to such order substantiating that,

 19  at a minimum, such remedial activities satisfied the  remedial  require-

 20  ments for the site.

 21    2. Upon the department's receipt of such certification, the department

 22  shall  review the final engineering report and the data submitted pursu-

 23  ant to the order as well as any other relevant information regarding the

 24  site. The department shall provide the  person,  upon  its  satisfaction

 25  that  the  remedial requirements for the site have been achieved, with a

 26  covenant not to sue, binding upon the state, for any liability,  includ-

 27  ing any future liability or claim for the further remediation of hazard-

 28  ous wastes at or from the site that was the subject of such order except

                                        35                         12021-01-1

  1  that a person responsible for the site's remediation as of the effective

  2  date of the consent order pursuant to applicable principles of statutory

  3  and  common  law  liability  shall  not  receive  a  release for natural

  4  resource  damages. Additionally, the state nonetheless shall reserve all

  5  of its rights concerning, and such covenant shall  not  extend  to,  any

  6  further investigation or remedial action the department deems necessary,

  7  as a result of:

  8    a. a failure to comply with the terms and conditions of the order;

  9    b.  a  fraudulent  demonstration that the cleanup levels identified in

 10  the order were reached;

 11    c. a release or threatened release  at  the  site  subsequent  to  the

 12  effective date of the order;

 13    d.  a change in the site's use subsequent to the effective date of the

 14  order to a use requiring a lower level of residual contamination  unless

 15  additional remedial activities are undertaken which shall meet the stan-

 16  dard for protection of the public health and environment that applies to

 17  remedial actions for such use under this title;

 18    e.  information  received, in whole or in part, after the department's

 19  execution of such order, which indicates that the remediation performed,

 20  or to be performed, under such order will not be, or is not,  protective

 21  of the public health or environment for such use of the site; or

 22    f.  the  department's determination that the remedy implemented is not

 23  protective of the public health or environment.

 24    3. The reservation contained in paragraph d of subdivision two of this

 25  section shall not be reserved in the event that a person remediates soil

 26  contamination to soil category 1, as that term is described in paragraph

 27  a of subdivision three of section 27-1316 of this title.

                                        36                         12021-01-1

  1    4. The reservation contained in paragraph f of subdivision two of this

  2  section shall not be reserved for a person who is  not  responsible  for

  3  the  remediation of the site pursuant to applicable principles of statu-

  4  tory or common law liability, or who is liable solely  as  a  result  of

  5  ownership  or  operation of the affected site subsequent to the disposal

  6  of hazardous waste or the discharge of petroleum, in the event that such

  7  person remediates soil contamination to soil category 1, as that term is

  8  described in paragraph a of subdivision three of section 27-1316 of this

  9  title.

 10    5. The covenant not to sue  issued  pursuant  to  this  section  shall

 11  extend  to  the  person's  successors  or assigns through acquisition of

 12  title to the site to which the covenant applies  and  to  a  person  who

 13  develops  or otherwise occupies the site, provided that such persons act

 14  in good faith to adhere to the requirements of such  order  on  consent.

 15  However,  such covenant does not extend, and cannot be transferred, to a

 16  person who is responsible as of the date of the issuance of an order  on

 17  consent  for the remediation of hazardous waste at the site according to

 18  applicable principles of statutory or common law liability  unless  that

 19  person was party to the order on which such covenant was based. A notice

 20  of the order containing such covenant shall be recorded and indexed as a

 21  declaration  of  covenant in the office of the recording officer for the

 22  county or counties where such site is located in the  manner  prescribed

 23  by  article  nine of the real property law within thirty days of signing

 24  the order if the person is an owner or within thirty days  of  acquiring

 25  title to the site if the person is a prospective purchaser.

 26    6. The provisions of this title shall not affect an action or a claim,

 27  including  a  claim for contribution, that a person who complies with an

 28  order on consent executed by such person and  the  department  providing

                                        37                         12021-01-1

  1  for  the  development  and implementation of an inactive hazardous waste

  2  disposal site remedial program pursuant to this title has  or  may  have

  3  against a third party.

  4    7. Nothing in this subdivision shall be construed to affect either the

  5  liability  of any person with respect to any costs, damages, or investi-

  6  gative or remedial activities that are not included in the order; or the

  7  department's authority to maintain an action or proceeding  against  any

  8  person who is not subject to the order.

  9    8. A person who has settled its liability to the department under this

 10  subdivision  shall  not  be liable for claims for contribution regarding

 11  matters addressed in the order. Such settlement does not  discharge  any

 12  of  the  persons  responsible under law to investigate and remediate the

 13  hazardous waste unless its terms so provide, but it reduces  the  poten-

 14  tial liability of the others by the amount of the settlement.

 15    9.  Nothing  in  this  subdivision  shall  be  construed to affect the

 16  authority of the department  to  reach  settlement  with  other  persons

 17  consistent with its authority under applicable law.

 18    §  12.  Section  27-1315  of  the  environmental  conservation law, as

 19  amended by chapter 857 of the laws  of  1982,  is  amended  to  read  as

 20  follows:

 21  § 27-1315. Rules and regulations.

 22    1. The commissioner shall have the power to promulgate rules and regu-

 23  lations  necessary  and  appropriate  to  carry out the purposes of this

 24  title. Any such regulations shall include provisions which establish the

 25  procedures for a hearing pursuant to paragraph a of subdivision four  of

 26  section  27-1313  of  this   article  title.   Any such provisions shall

 27  ensure a division of functions between the commissioner, the  staff  who

 28  present  the  case  and any hearing officers appointed. In addition, any

                                        38                         12021-01-1

  1  such regulations shall set forth findings  to  be  based  on  a  factual

  2  record  which  must  be  made  before the commissioner determines that a

  3  significant threat to the  environment  exists.  Rules  and  regulations

  4  promulgated pursuant to this title shall be subject to the approval of a

  5  board which shall be known as the inactive hazardous waste disposal site

  6  regulation  review  board  which  shall have the same members, rules and

  7  procedures as the state environmental board.

  8    2. Such rules and regulations of the department as shall be in  effect

  9  on  the  effective  date  of the chapter of the laws of two thousand one

 10  which added this subdivision that shall have been promulgated  to  carry

 11  out  the purposes of this title shall be deemed to be revised, as of the

 12  effective date of the chapter of the laws  of  two  thousand  one  which

 13  added  this  subdivision, to include the definition of "hazardous waste"

 14  as it appears in section 27-1301 of this title.

 15    § 13.  Section  27-1316  of  the  environmental  conservation  law  is

 16  REPEALED and a new section 27-1316 is added to read as follows:

 17  § 27-1316. Soil cleanup levels.

 18    1.  The  commissioner  shall establish a technical advisory panel. The

 19  membership of the panel shall be appointed by the commissioner  and  the

 20  commissioner  of health and shall include representation from the public

 21  health advocacy community, the  environmental  advocacy  community,  the

 22  business  community, municipalities, and others as deemed appropriate by

 23  the commissioner. The commissioner and the commissioner of  the  depart-

 24  ment  of  health shall be co-chairs of such panel. None of the appointed

 25  members shall be officers or employees of any state department or  agen-

 26  cy.  Each member shall have experience in risk assessment methodologies,

 27  remediation technologies, or other appropriate scientific, technical, or

 28  other relevant expertise in regard to the  remediation  of  contaminated

                                        39                         12021-01-1

  1  sites. All meetings of the technical advisory panel shall be open to the

  2  public.  The  recommendations  of  the technical advisory panel shall be

  3  subject to public comment.

  4    2.  The  panel  shall provide advice on the development of, and recom-

  5  mend, soil clean-up levels which provide for a  multi-category  approach

  6  for  the  remediation of soil contamination, as set forth in subdivision

  7  three of this section, at inactive hazardous waste disposal sites, sites

  8  subject to a voluntary agreement under title fourteen of  this  article,

  9  and  cleanup  and removal actions under article twelve of the navigation

 10  law.

 11    3. In the development of soil cleanup levels, the  technical  advisory

 12  panel  shall  consider  the  following as the basis for the soil cleanup

 13  levels: the cancer  and  non-cancer  human  health  effects;  background

 14  concentrations;  exposure to the same contaminant from other routes; the

 15  strength of the toxicological data base; sensitive populations,  includ-

 16  ing  children; protection of groundwater for its classified use, surface

 17  water,  air  (including  indoor  air);  and  protection  of   ecological

 18  resources,  including  fish  and  wildlife.  In addition, the cumulative

 19  effects of contaminants and the possibility that some  contaminants  may

 20  act  through similar toxicological mechanisms shall be considered. Where

 21  toxicological, exposure or other pertinent data are inadequate  or  non-

 22  existent  for  a  specific  chemical, the experiences under the existing

 23  state remedial programs shall be considered. The goals for the level  of

 24  risk associated with soil cleanup levels for individual contaminants are

 25  an  excess cancer risk of one in one million for carcinogenic end points

 26  and a hazard index of one for non-cancer end points for each soil  cate-

 27  gory.

                                        40                         12021-01-1

  1    a.  Soil  category 1: cleanup levels that will be protective of public

  2  health and the environment that would allow the site to be used for  any

  3  purpose  without  restriction  and  without  reliance  on  institutional

  4  controls or engineering controls.

  5    b.  Soil  category 2: cleanup levels that will be protective of public

  6  health and the environment for the site's current, intended, or  reason-

  7  ably  anticipated  residential,  commercial,  or industrial use and with

  8  consideration of use of institutional or engineering controls  to  reach

  9  such levels.

 10    c. Soil category 3: a process to determine cleanup levels that will be

 11  protective of public health and the environment using site specific data

 12  for  the site's current, intended or reasonably anticipated residential,

 13  commercial, or industrial use.

 14    4. The technical advisory panel shall submit its recommendations with-

 15  in eighteen months from the date of the first meeting of such  technical

 16  advisory panel.

 17    5. After the close of the public comment period on the recommendations

 18  of  the  technical advisory panel, the commissioner and the commissioner

 19  of health, where appropriate, shall promulgate regulations setting forth

 20  the soil cleanup levels, taking into consideration such  recommendations

 21  and  any  other  information  deemed  relevant by the department and the

 22  department of health.

 23    6. The department shall determine cleanup levels for  contaminants  in

 24  the  soil  using  site  specific data until the commissioner promulgates

 25  rules and regulations pursuant to this section and thereafter shall  use

 26  the  soil cleanup levels set forth in such rules and regulations, as may

 27  be amended.

                                        41                         12021-01-1

  1    § 14. Article 27 of the environmental conservation law is  amended  by

  2  adding a new title 14 to read as follows:

  3                                  TITLE 14

  4                            VOLUNTARY CLEANUP ACT

  5  Section 27-1400. Declaration of policy and findings of fact.

  6          27-1401. Definitions.

  7          27-1403. Request for participation.

  8          27-1405. Determination of eligibility.

  9          27-1407. Voluntary agreement and work plan requirements.

 10          27-1409. Citizen participation/public notification.

 11          27-1411. Covenant not to sue.

 12          27-1413. Remediation certificate.

 13          27-1415. Payment of state costs.

 14          27-1417. Change of use.

 15          27-1419. Immunity.

 16          27-1421. Permit waivers.

 17          27-1423. Access to sites.

 18  § 27-1400. Declaration of policy and findings of fact.

 19    The  legislature hereby declares and finds that, to advance the policy

 20  of the state of New York to conserve, improve and  protect  its  natural

 21  resources  and  environment and control water, land and air pollution in

 22  order to enhance the health, safety and welfare of  the  people  of  the

 23  state  and their overall economic and social well being, it is appropri-

 24  ate to enact this Voluntary Cleanup Act  to  accomplish  remediation  of

 25  affected  sites  by affected persons without official compulsion; and it

 26  is the intent of the legislature that the provisions of  this  Voluntary

 27  Cleanup  Act  shall  not be construed as limiting or otherwise affecting

 28  any authority conferred upon the department by any  other  provision  of

                                        42                         12021-01-1

  1  law.  The  remedial  goal  of the voluntary cleanup program shall be the

  2  protection of public health and the environment, with the minimum objec-

  3  tive being to eliminate or mitigate all significant  threats  to  public

  4  health  and  the  environment  presented  by  the hazardous waste and/or

  5  petroleum through proper application of scientific and engineering prin-

  6  ciples.

  7  § 27-1401. Definitions.

  8    1. "Affected person" means a person whose request  to  participate  in

  9  the  voluntary cleanup program under this title has been accepted by the

 10  department for consideration.

 11    2. "Affected site" means an area or structure  where  hazardous  waste

 12  and/or  petroleum  has been deposited, disposed of, placed, or otherwise

 13  come to be located that is not a site on the  National  Priorities  List

 14  established  under  authority  of  42  U.S.C.A.  §9605,  nor  subject to

 15  enforcement action, nor subject to a permit issued  pursuant  to  titles

 16  seven or nine of this article.

 17    3.  "Hazardous  waste"  means  hazardous  waste  as defined in section

 18  27-1301 of this article.

 19    4. "Interim remedial measure"  means  "remediation"  consisting  of  a

 20  discrete  set  of activities to address both emergency and non-emergency

 21  site conditions which can be undertaken without extensive  investigation

 22  and evaluation.

 23    5.  "Investigation"  means  all  those  activities to characterize the

 24  nature and extent of a release or threatened release of hazardous  waste

 25  and/or petroleum into the environment.

 26    6.  "Person"  means  an  individual, trust, firm, joint stock company,

 27  corporation, partnership, association, state, municipality,  commission,

                                        43                         12021-01-1

  1  political  subdivision  of  a  state,  public benefit corporation or any

  2  interstate body.

  3    7.  "Petroleum"  means  petroleum  as  defined  in section one hundred

  4  seventy-two of the navigation law, even if appearing on the list promul-

  5  gated pursuant to section 37-0103 of this chapter.

  6    8. "Preliminary  environmental  assessment"  means  a  written  report

  7  submitted  as  part of a request to participate in the voluntary cleanup

  8  program within the department under this title which shall  contain  the

  9  information  described  in  subdivision  two  of section 27-1403 of this

 10  title.

 11    9. "Remediation" means the activities undertaken, except for "investi-

 12  gation" activities, to eliminate,  remove,  abate,  control  or  monitor

 13  health  and/or  environmental hazards or potential hazards in connection

 14  with an affected site or to treat or dispose of wastes and waste contam-

 15  inated materials from the site, including but not limited  to,  grading,

 16  contouring,  trenching,  grouting,  capping,  excavation,  transporting,

 17  incineration, chemical treatment, biological treatment  or  construction

 18  of leachate collection and treatment facilities.

 19    10.  "State costs" means all those costs, obligations, commitments, or

 20  undertakings associated with the administration or  oversight  responsi-

 21  bilities of the department, the department of health, or any other state

 22  agency attributable to carrying out the investigation and/or remediation

 23  of  an  affected  site under a voluntary agreement, as described in this

 24  title. Such expenses shall include administrative  expenses  (wages  and

 25  salaries), fringe benefits, overhead, supplies and materials, equipment,

 26  travel and utilities.

 27    11.  "Voluntary  agreement"  means an agreement executed in accordance

 28  with this title by an affected  person  and  the  department  concerning

                                        44                         12021-01-1

  1  actual,  threatened, or suspected hazardous waste and/or petroleum pres-

  2  ent at or migrating from an affected site.

  3  § 27-1403. Request for participation.

  4    1.  A  person  who  desires  to  participate  in the voluntary cleanup

  5  program under this title concerning a  particular  affected  site  shall

  6  submit a request to the department.

  7    2.  Such  request  shall  be  on a form provided by the department and

  8  shall contain  general  information  concerning  such  person  and  such

  9  person's  relation  to  the affected site, a description of the affected

 10  site, and a copy of a preliminary  environmental  assessment  concerning

 11  such affected site that shall include, but not be limited to:

 12    a.  a  review  of  any  relevant prior environmental studies, property

 13  assessments, or geological studies of such affected site;

 14    b. a legal description of such affected site;

 15    c. the physical characteristics of such affected site;

 16    d. the compliance history of any operations at such affected  site  to

 17  the extent the history is known by such person;

 18    e.  a  review of any existing aerial photographs of such affected site

 19  that may indicate its prior uses;

 20    f. if possible, interviews with any employee who may have knowledge of

 21  environmental conditions at such affected site;

 22    g. an inspection of such affected site  sufficient  to  evaluate  site

 23  conditions and remedial needs;

 24    h.  an  identification  of the past, current, intended, and reasonably

 25  anticipated future uses of such affected site; and

 26    i. any other relevant information concerning the potential  for  human

 27  and environmental exposures to contamination at such affected site.

                                        45                         12021-01-1

  1    3. The department shall determine whether such affected site should be

  2  included  in  the registry of inactive hazardous waste disposal sites as

  3  required by section 27-1305 of this article. If  the  department  deter-

  4  mines  that such affected site is eligible for inclusion in the registry

  5  as  a  classification 1 or 2 site, and if the affected person commits to

  6  enter into a voluntary agreement pursuant to this title  which  requires

  7  the  elimination  or mitigation of all significant threats to the public

  8  health and environment posed by  the  hazardous  waste,  the  department

  9  shall  defer  including  the  affected  site  in  the registry and shall

 10  continue to defer such site for  so  long  as  the  affected  person  is

 11  engaged  in good faith negotiations to enter into such an agreement and,

 12  following its execution, is in compliance with the terms of  the  volun-

 13  tary agreement.

 14  § 27-1405. Determination of eligibility.

 15    1.  The  department  shall  use  its best efforts to notify the person

 16  requesting participation in the voluntary cleanup program  within  sixty

 17  days  after  receiving  such request pursuant to section 27-1403 of this

 18  title that such request is either accepted or rejected.

 19    2. The department shall reject such request if:

 20    a. the request is submitted by the owner and/or any person responsible

 21  for the disposal of hazardous waste according to  applicable  principles

 22  of statutory or common law liability at an affected site which is listed

 23  in the registry of inactive hazardous waste disposal sites under section

 24  27-1305  of  this  article  and  given  a classification as described in

 25  subparagraph one or two of paragraph  b  of  subdivision  four  of  such

 26  section;

                                        46                         12021-01-1

  1    b.  the  request does not contain the information required pursuant to

  2  subdivision two of section 27-1403 of this title in sufficient detail to

  3  assess the conditions of the affected site;

  4    c.  the  department  determines  that there is an action or proceeding

  5  against the person who is  requesting  participation  in  the  voluntary

  6  cleanup  program  that  is pending in any civil or criminal court in any

  7  jurisdiction, or before any state or federal  administrative  agency  or

  8  body,  wherein  the state or federal government seeks the investigation,

  9  removal or remediation of hazardous waste and/or petroleum, or penalties

 10  for the disposal of hazardous waste and/or petroleum; or

 11    d. the department, based on the preliminary  environmental  assessment

 12  and/or  other  information the department possesses, determines that the

 13  request is for a site which does not meet the  definition  of  "affected

 14  site" pursuant to section 27-1401 of this title.

 15    3.  The  department  may  reject such request for participation if the

 16  department determines that the public interest would not  be  served  by

 17  granting such request.

 18    4.  If such request is rejected pursuant to paragraph b of subdivision

 19  two of this section, the department shall provide to the  person  making

 20  such  request, in writing, a list of the additional information required

 21  for the department to determine eligibility under this title.

 22  § 27-1407. Voluntary agreement and work plan requirements.

 23    1. a. The voluntary agreement shall include, but not  be  limited  to,

 24  the following provisions:

 25    (i)  one  requiring  such  affected  person  to  pay  for  state costs

 26  provided, however, that with respect  to  an  affected  site  which  the

 27  department has determined constitutes a significant threat to the public

 28  health  or environment, the department may include a provision requiring

                                        47                         12021-01-1

  1  the  affected  person  to  provide  a  technical  assistance  grant,  as

  2  described  in  subdivision  three of section 27-1313 of this article and

  3  under the conditions described therein, to an eligible party in  accord-

  4  ance  with  procedures  established under such program, with the cost of

  5  such a grant serving as an offset against such state costs;

  6    (ii) one resolving disputes arising from the evaluation, analysis, and

  7  oversight of the implementation of the work plan as described  in  para-

  8  graph b of this subdivision;

  9    (iii) one requiring an indemnification provision which holds the state

 10  harmless  from  any  claim,  suit,  action,  and  cost of every name and

 11  description  arising  out  of  or  resulting  from  the  fulfillment  or

 12  attempted  fulfillment  of  the  voluntary  agreement  except  for those

 13  claims, suits, actions, and costs arising from the state's gross  negli-

 14  gence or willful or intentional misconduct;

 15    (iv) one authorizing the department to terminate a voluntary agreement

 16  at  any time during the implementation of such agreement if the affected

 17  person implementing such agreement fails to  comply  substantially  with

 18  such agreement's terms and conditions;

 19    (v)  one exempting such affected person from the requirement to obtain

 20  any state or local permit or other authorization for any activity satis-

 21  fying the following criteria:

 22    (1) the activity is conducted on the affected  site  or  on  different

 23  premises  that  are  under  common control or are contiguous to or phys-

 24  ically connected with the affected site and the activity manages  exclu-

 25  sively hazardous waste and/or petroleum from such affected site,

 26    (2)  the  activity  satisfies  all  substantive technical requirements

 27  applicable to like activity conducted pursuant to a permit as determined

 28  by the department, and

                                        48                         12021-01-1

  1    (3) the activity is conducted under such voluntary agreement;

  2    (vi)  one stating that the department shall not consider such affected

  3  person an operator of such affected site based solely upon execution  or

  4  implementation  of  such voluntary agreement for purposes of remediation

  5  liability;

  6    (vii) a requirement that the  affected  person  conduct  investigation

  7  and/or  remediation  activities pursuant to one or more work plans which

  8  are approved by the department; and

  9    (viii) the inclusion of other conditions considered necessary  by  the

 10  department concerning the effective and efficient implementation of this

 11  title, and, where the affected person is responsible for the disposal of

 12  hazardous  waste  or  the discharge of petroleum according to applicable

 13  principles of statutory or common law liability, unless  such  liability

 14  arises  solely  from  ownership or operation of the affected site subse-

 15  quent to the disposal of hazardous waste or the discharge of  petroleum,

 16  the  department  shall  include provisions relating to recovery of state

 17  costs incurred before the effective date of such voluntary agreement.

 18    b. A work plan shall include, but not be  limited  to,  the  following

 19  requirements:

 20    (i)  a  work  plan  for  the  investigation of the affected site shall

 21  provide for the investigation and characterization  of  the  nature  and

 22  extent  of the contamination within the boundaries of the affected site,

 23  provided, however, that an affected person that is responsible  for  the

 24  disposal of hazardous waste or the discharge of petroleum under applica-

 25  ble principles of statutory or common law liability, unless such liabil-

 26  ity  arises  solely  from  ownership  or  operation of the affected site

 27  subsequent to the disposal of hazardous waste or the discharge of petro-

 28  leum, shall also be required to investigate and characterize the  nature

                                        49                         12021-01-1

  1  and  extent  of  contamination  emanating  from  such  affected site. An

  2  affected person not responsible for the disposal of hazardous  waste  or

  3  the  discharge  of petroleum under applicable principles of statutory or

  4  common  law  liability, or a person that is liable solely as a result of

  5  ownership or operation of the affected site subsequent to  the  disposal

  6  of  hazardous waste or the discharge of petroleum, must perform an expo-

  7  sure assessment consisting of an evaluation of the pathways by  which  a

  8  receptor  could  be exposed to such contamination, in order to determine

  9  the risk to public health and the  environment  from  any  contamination

 10  emanating from such affected site.  The work plan shall require that the

 11  affected person cause a final report to be prepared and submitted to the

 12  department that identifies the investigation activities completed pursu-

 13  ant to the work plan. Such final report, at a minimum, shall:

 14    A.  fully  characterize  the nature and extent of contamination at the

 15  affected site and, if the affected person  is  required  to  conduct  an

 16  off-site  investigation pursuant to this title, the nature and extent of

 17  contamination that has migrated from the affected site;

 18    B. state whether the completed  investigation  has  demonstrated  that

 19  conditions at the affected site (i) require remediation in order to meet

 20  the  remedial  goal  of  the  voluntary cleanup program or (ii) meet the

 21  remedial goal of the voluntary cleanup  program  without  necessity  for

 22  remediation; and

 23    C.  if  the  final report certifies that no remediation is required to

 24  meet the remedial goal of the voluntary cleanup program, then the  final

 25  report  shall  also  demonstrate  the  same requirements as set forth in

 26  subdivision two of this section.

 27    (ii) a work plan for the remediation of the affected site, other  than

 28  a  work  plan  for  an  interim  remedial measure, shall provide for the

                                        50                         12021-01-1

  1  development and implementation of a remedial program  for  such  contam-

  2  ination  within  the boundaries of such affected site, provided however,

  3  that an affected person that is responsible for the disposal of  hazard-

  4  ous  waste  or the discharge of petroleum under applicable principles of

  5  statutory or common law  liability,  except  an  affected  person  whose

  6  liability arises solely from ownership or operation of the affected site

  7  subsequent to the disposal of hazardous waste or the discharge of petro-

  8  leum, shall also be required to provide in such work plan for the devel-

  9  opment  and  implementation  of  a  remedial  program  for contamination

 10  related to the affected site but located outside the boundaries  of  the

 11  affected  site.  The remedial goal of any such remedial program shall be

 12  the protection of public health and the environment,  with  the  minimum

 13  objective  being  to  eliminate  or  mitigate all significant threats to

 14  public health and the  environment  presented  by  the  hazardous  waste

 15  and/or  petroleum through proper application of scientific and engineer-

 16  ing principles and such remedial  program  must  be  selected  upon  due

 17  consideration  of  the  evaluation  factors  set forth in paragraph b of

 18  subdivision one of section 27-1313 of this article. Such work plan  must

 19  contain  an  analysis  that such proposed remedy was assessed using such

 20  evaluation factors. Such work plan must provide that  the  soil  cleanup

 21  levels be consistent with the soil cleanup levels set forth in rules and

 22  regulations,  as  amended,  promulgated  pursuant to section 27-1315 and

 23  subdivision five of section 27-1316 of this article;  until  such  regu-

 24  lations  are  promulgated, the department shall determine cleanup levels

 25  for contaminants in soil using site specific data.  The  department  may

 26  approve  a  work  plan that includes institutional controls and/or engi-

 27  neering controls as components of an interim remedial measure or a reme-

 28  dial program but only if the work plan requires the owner of  such  real

                                        51                         12021-01-1

  1  property to annually submit to the department a written statement certi-

  2  fying under penalty of perjury that the institutional controls and engi-

  3  neering  controls employed to remediate such contamination are unchanged

  4  from the previous certification and that nothing has occurred that would

  5  constitute  a  violation  of any such controls, and gives access to such

  6  real property reasonable under the circumstances to  evaluate  continued

  7  maintenance  of  such controls. The department shall establish and main-

  8  tain a database with relevant information on  such  controls  and  shall

  9  make  such  information available for public inspection at the office of

 10  the county clerk or register for each county and at the  office  of  the

 11  town clerk for each town in Suffolk and Nassau counties;

 12    (iii)  a  work  plan  for  remediation pursuant to an interim remedial

 13  measure shall contain such provisions as the department deems  appropri-

 14  ate.  The work plan shall require that the affected person cause a final

 15  report to be prepared and submitted to the  department  that  identifies

 16  the activities completed pursuant to such work plan; and

 17    (iv)  at  any  time during the evaluation of a proposed work plan, the

 18  department may request that an  affected  person  submit  additional  or

 19  corrected information to the department. An affected person shall either

 20  comply with the request or withdraw such proposed work plan from consid-

 21  eration.

 22    2.  For  a  work plan requiring remediation, the affected person shall

 23  cause a final report to be prepared and submitted to the department that

 24  identifies the remediation activities completed pursuant  to  such  work

 25  plan.  A  final report for a work plan requiring remediation, other than

 26  an interim remedial measure, shall, at a minimum, demonstrate, as appro-

 27  priate, that:

                                        52                         12021-01-1

  1    a. there is no contamination by hazardous waste or  petroleum  of  the

  2  soil,  sediment,  surface  water,  or  groundwater on or underlying such

  3  affected site or, if required by this title, such areas  off-site  which

  4  are  or  have  been  impacted by on-site contamination in concentrations

  5  exceeding  the  requirements for remediation set forth in such work plan

  6  for remediation of such affected site;

  7    b. the data submitted to the department demonstrates that the applica-

  8  ble remediation requirements set forth in the work  plan  have  been  or

  9  will  be achieved in accordance with the timeframes, if any, established

 10  in such work plan;

 11    c. the use restrictions, if any are required by the  voluntary  agree-

 12  ment, have been recorded and indexed as a declaration of restrictions in

 13  the  office  of  the  recording officer for the county or counties where

 14  such affected site is located in the manner prescribed by  article  nine

 15  of  the real property law. Such declaration of restriction shall contain

 16  the name of the record owner of such affected site along  with  tax  map

 17  parcel  number  or  the  section, block, and lot number of such affected

 18  site; or

 19    d. the department has approved  a  plan  submitted  by  such  affected

 20  person for the proper operation, maintenance and monitoring of engineer-

 21  ing  controls, if any are required by such work plan, used to contain or

 22  control the contamination at or from such affected site.

 23    3. In the event that the affected person is not required by this title

 24  to conduct an investigation or perform remediation outside the  property

 25  boundaries  of  the affected site, then the department shall require the

 26  person responsible according to applicable principles  of  statutory  or

 27  common  law  liability,  other than such affected person, to conduct the

 28  off-site investigation and remediation if hazardous waste and/or  petro-

                                        53                         12021-01-1

  1  leum that have migrated from the affected site pose a significant threat

  2  to  public  health or the environment.  If such responsible person fails

  3  to undertake or undertakes and fails to complete such off-site  investi-

  4  gation  and/or  remediation,  the state is authorized to use moneys from

  5  the remedial program transfer fund established pursuant to section nine-

  6  ty-seven-xxx of the state finance law  to  undertake  the  investigation

  7  and/or  remediation  of such contamination.   The state's costs incurred

  8  relative to such off-site contamination shall be  recoverable  from  the

  9  person or persons responsible.

 10    4.    The  commissioner  shall  use best efforts to approve, modify or

 11  reject a  proposed  work  plan  within  sixty  days  from  its  receipt,

 12  provided,  however,  that  the  commissioner  shall  use best efforts to

 13  approve, modify or reject a proposed work plan  for  remediation,  other

 14  than  a  work  plan  for  an interim remedial measure, within sixty days

 15  after the end of the comment period or the close of the  public  meeting

 16  provided by section 27-1409 of this title, whichever is later, and after

 17  evaluating any comments received.

 18    a.  If the commissioner rejects a proposed work plan, the commissioner

 19  shall notify the affected person and specify the reasons  for  rejecting

 20  same.

 21    b.  If  the commissioner approves or modifies such proposed work plan,

 22  the commissioner shall notify the affected person, in writing, that  the

 23  proposed  work  plan  has been approved or modified. If the commissioner

 24  requires a modification, the affected person may agree  to  modify  such

 25  proposed work plan or withdraw it from consideration.

 26    5.  The affected person shall execute a voluntary agreement that shall

 27  contain  the  matters set forth in this title. The affected person shall

 28  carry out the terms of the voluntary agreement.

                                        54                         12021-01-1

  1    6. Nothing herein shall prohibit or limit the department  from  termi-

  2  nating  a  voluntary  agreement at any time during its implementation if

  3  the affected person subject to such voluntary agreement fails to  comply

  4  substantially with such agreement's terms and conditions.

  5    7.  Nothing herein shall require the department to enter into a volun-

  6  tary agreement with any person.

  7  § 27-1409. Citizen participation/public notification.

  8    1. The department shall place a notification of receipt of  a  request

  9  to  participate  in the voluntary cleanup program pursuant to this title

 10  in the environmental notice bulletin.

 11    2. Upon the department's finalization of  a  work  plan  for  investi-

 12  gation,  the department must notify individuals, groups and/or organiza-

 13  tions that have expressed interest in or are affected by the  work  plan

 14  of such work plan, and must publish a notice in the environmental notice

 15  bulletin. Further, upon the satisfactory completion of the investigation

 16  performed  under  such  voluntary  agreement, the department must notify

 17  individuals, groups and/or organizations that have expressed interest in

 18  or are affected by the voluntary agreement and publish a notice  in  the

 19  environmental notice bulletin regarding such satisfactory completion.

 20    3.  Before  the  department finalizes a proposed work plan for remedi-

 21  ation, other than a work plan  for  an  interim  remedial  measure,  the

 22  department  must  notify individuals, groups and organizations that have

 23  expressed interest in or are affected by the proposed work plan  of  the

 24  proposed  work  plan  for  remediation  and  publish a notice requesting

 25  comments concerning the proposed work plan in the  environmental  notice

 26  bulletin.  Such notice shall provide for a forty-five day public comment

 27  period following publication of the notice required under this  section.

 28  The  department shall hold a public meeting on the proposed work plan if

                                        55                         12021-01-1

  1  the commissioner has found that the affected site constitutes a  signif-

  2  icant threat to the public health or environment.

  3  § 27-1411. Covenant not to sue.

  4    1.  After the affected person has successfully completed the implemen-

  5  tation  of  a  work plan and where such affected person can certify that

  6  the remedial goal of the voluntary cleanup program, both on the affected

  7  site and, if required by this title, such areas off-site  which  are  or

  8  have  been impacted by on-site contamination, has been achieved and that

  9  the requirements of such work plan as well as the relevant provisions of

 10  paragraph b of subdivision two of section 27-1407  of  this  title  have

 11  been  satisfied,  such  affected person shall submit to the department a

 12  written certification prepared by an individual  licensed  or  otherwise

 13  authorized  in  accordance  with  article  one hundred forty-five of the

 14  education law to practice the profession of  engineering  substantiating

 15  that  the affected site meets the remedial goal of the voluntary cleanup

 16  program as set forth in this title and that  the  requirements  of  such

 17  work  plan as well as the relevant provisions of paragraph b of subdivi-

 18  sion two of section 27-1407 of this title have been satisfied.

 19    2. Upon the department's receipt of such certification, the department

 20  shall review the final report, the certification and the data  submitted

 21  pursuant to the voluntary agreement as well as any other relevant infor-

 22  mation  regarding  the  affected  site. The department shall provide the

 23  affected person, upon its satisfaction that the  remedial  goal  of  the

 24  voluntary  cleanup program and the requirements of the work plan as well

 25  as the relevant provisions of paragraph b of subdivision two of  section

 26  27-1407  of this title for the affected site and, if required under this

 27  title, such areas off-site which are or have been  impacted  by  on-site

 28  contamination  have  been  achieved, with a covenant not to sue, binding

                                        56                         12021-01-1

  1  upon the state, for any liability, including  any  future  liability  or

  2  claim for the further remediation of hazardous waste and/or petroleum at

  3  or  from the affected site that was the subject of such voluntary agree-

  4  ment  except  that  a person responsible for the affected site's remedi-

  5  ation pursuant to applicable principles  of  statutory  and  common  law

  6  liability,  unless such liability arises solely from ownership or opera-

  7  tion of the affected site subsequent to the disposal of hazardous  waste

  8  or  the  discharge of petroleum, shall not receive a release for natural

  9  resource damages. Additionally, the state nonetheless shall reserve  all

 10  of  its  rights  concerning,  and such covenant shall not extend to, any

 11  further investigation and/or remediation the department deems necessary,

 12  as a result of:

 13    a. a failure to comply with the terms and conditions of the  voluntary

 14  agreement;

 15    b.  a  fraudulent  demonstration  that  the  cleanup levels identified

 16  pursuant to the voluntary agreement were reached;

 17    c. a release or threatened release at the affected site subsequent  to

 18  the effective date of the voluntary agreement;

 19    d.  a  change  in  the affected site's use subsequent to the effective

 20  date of the voluntary agreement to a use  requiring  a  lower  level  of

 21  residual contamination unless additional remediation is undertaken which

 22  shall meet the standard for protection of the public health and environ-

 23  ment that applies under this title;

 24    e.  information  received, in whole or in part, after the department's

 25  execution of such voluntary agreement, which indicates that  the  activ-

 26  ities performed, or to be performed, under such voluntary agreement will

 27  not  be,  or are not, protective of the public health or environment for

 28  such use of the affected site; or

                                        57                         12021-01-1

  1    f. the department determines  that  environmental  conditions  at  the

  2  affected site are not protective of the public health or environment.

  3    3. The reservation contained in paragraph d of subdivision two of this

  4  section  shall  not  be  reserved  in  the  event that the level of soil

  5  contamination at the affected site is less than that set forth  in  soil

  6  category  1,  as  that  term  is described in paragraph a of subdivision

  7  three of section 27-1316 of this article.

  8    4. The reservation contained in paragraph f of subdivision two of this

  9  section shall not be reserved for an affected person who is not  respon-

 10  sible  for  the  remediation of the affected site pursuant to applicable

 11  principles of statutory or common law liability, or who is liable solely

 12  as a result of ownership or operation of the affected site subsequent to

 13  the disposal of hazardous waste or the discharge of  petroleum,  in  the

 14  event  that  such  affected person remediates soil contamination to soil

 15  category 1, as that term is described  in  paragraph  a  of  subdivision

 16  three of section 27-1316 of this article.

 17    5.  The  covenant  not  to  sue  issued pursuant to this section shall

 18  extend to the affected person's successors or assigns  through  acquisi-

 19  tion  of title to the affected site to which the covenant applies and to

 20  a person who develops or otherwise occupies the affected site,  provided

 21  that  such  persons  act  in good faith to adhere to the requirements of

 22  such voluntary agreement.  However, such covenant does not  extend,  and

 23  cannot  be  transferred, to a person who is responsible for the disposal

 24  of hazardous waste or the discharge of petroleum according to applicable

 25  principles of statutory or common law liability as of the effective date

 26  of the voluntary agreement unless that person was party to the voluntary

 27  agreement on which such covenant was based. A notice  of  the  voluntary

 28  agreement  containing  such  covenant shall be recorded and indexed as a

                                        58                         12021-01-1

  1  declaration of covenant in the office of the recording officer  for  the

  2  county  or  counties  where  such affected site is located in the manner

  3  prescribed by article nine of the real property law within  thirty  days

  4  of signing the voluntary agreement if the affected person is an owner or

  5  within  thirty  days  of  acquiring  title  to  the affected site if the

  6  affected person is a prospective purchaser.

  7    6. The provisions of this title shall not affect an action or a claim,

  8  including a claim for contribution, that an affected person  who  imple-

  9  ments  or  completes  a  voluntary  agreement  executed by such affected

 10  person and the department pursuant to this title has or may have against

 11  a third party.

 12    7. Nothing in this section shall be construed  to  affect  either  the

 13  liability  of any person with respect to any costs, damages, or investi-

 14  gative or remedial activities that are not  included  in  the  voluntary

 15  agreement;  or  the  department's  authority  to  maintain  an action or

 16  proceeding against any person who is not subject to the voluntary agree-

 17  ment.

 18    8. An affected person who has settled its liability to the  department

 19  under  this  section  shall  not  be  liable for claims for contribution

 20  regarding matters addressed in the voluntary agreement.  Such settlement

 21  does not discharge any of the persons responsible under law to  investi-

 22  gate  and remediate the hazardous waste unless its terms so provide, but

 23  it reduces the potential liability of the others by the  amount  of  the

 24  settlement.

 25    9.  Nothing in this section shall be construed to affect the authority

 26  of the department to reach settlement with other persons consistent with

 27  its authority under applicable law.

                                        59                         12021-01-1

  1    10. An affected person who implements a voluntary  agreement  executed

  2  by  such affected person and the department pursuant to this title shall

  3  not be held  liable  for  claims  for  contribution  concerning  matters

  4  addressed in such voluntary agreement.

  5  § 27-1413. Remediation certificate.

  6    1.  Upon the department's determination pursuant to subdivision two of

  7  section  27-1411  of  this title that the remedial goal of the voluntary

  8  cleanup program as well as the requirements of the work plan  and  rele-

  9  vant requirements set forth in paragraph b of subdivision two of section

 10  27-1407  of this title for the affected site and, if required under this

 11  title, such areas off-site which are or have been  impacted  by  on-site

 12  contamination  have  been achieved, the affected person may apply to the

 13  commissioner for a  remediation  certificate  that  certifies  that  the

 14  requirements  under  this title for the affected site have been achieved

 15  which would warrant the allowance of a credit under  section  twenty-one

 16  of the tax law.

 17    2.  Such  application  shall  be on a form provided by the department,

 18  shall be certified under penalty of perjury, and shall include  but  not

 19  be  limited to, a statement from a certified public accountant detailing

 20  the site preparation costs, as that term is defined in  section  twenty-

 21  one  of the tax law, required to be paid or incurred in order to qualify

 22  for a remediation certificate.

 23    3. The commissioner shall issue  a  remediation  certificate  if  such

 24  affected  person  is either (i) not a person responsible for the remedi-

 25  ation of hazardous waste or the discharge of petroleum at  the  affected

 26  site  according  to  applicable  principles  of  statutory or common law

 27  liability, or (ii) a person responsible for the remediation of hazardous

 28  waste or the discharge of petroleum at the affected  site  according  to

                                        60                         12021-01-1

  1  applicable  principles  of  statutory  or  common  law liability if such

  2  person's liability arises solely from  ownership  or  operation  of  the

  3  affected  site  subsequent  to  the  disposal  of hazardous waste or the

  4  discharge of petroleum.

  5    4. Such remediation certificate shall state:

  6    a.  that  the affected person is eligible pursuant to paragraph (i) or

  7  (ii) of subdivision three of this section for  a  credit  under  section

  8  twenty-one of the tax law;

  9    b.  that  the  affected person has satisfactorily completed the activ-

 10  ities required by the voluntary agreement and this title.   Further,  in

 11  the  event  that cleanup of the soil to soil category 2 or soil category

 12  3, as those terms are described in paragraph a of subdivision  three  of

 13  section 27-1316 of this article would be protective of public health and

 14  the  environment  in accordance with subparagraph (ii) of paragraph b of

 15  subdivision one of section 27-1407  of  this  title,  and  the  affected

 16  person  remediated the soil to soil category 1 as that term is described

 17  in paragraph a of subdivision three of section 27-1316 of this  article,

 18  the  remediation  certificate shall indicate that the affected person is

 19  eligible to receive an additional two percent credit pursuant  to  para-

 20  graph four of subdivision (a) of section twenty-one of the tax law; and

 21    c.  the  department's  determination  regarding  the  amount  that the

 22  affected person has expended for site preparation costs, as that term is

 23  defined in section twenty-one of the tax law, required  to  be  paid  or

 24  incurred in order to qualify for a remediation certificate.

 25    5.  If  the affected person has leased the property and such lessee is

 26  (i) not a person responsible for the remediation of hazardous  waste  or

 27  the  discharge of petroleum at the affected site according to applicable

 28  principles of statutory or  common  law  liability,  or  (ii)  a  person

                                        61                         12021-01-1

  1  responsible  for  the remediation of hazardous waste or the discharge of

  2  petroleum at the affected site according  to  applicable  principles  of

  3  statutory  or  common  law  liability  if such person's liability arises

  4  solely  from  ownership  or operation of the affected site subsequent to

  5  the disposal of hazardous waste or the discharge of petroleum, the reme-

  6  diation certificate shall also include a statement indicating  that  the

  7  lessee is a person as set forth in this subdivision.

  8    6.  A  remediation certificate issued pursuant to subdivision three of

  9  this section may be modified or revoked by the commissioner upon a find-

 10  ing that:

 11    a. the affected person has failed to comply with the terms and  condi-

 12  tions of the voluntary agreement;

 13    b.  the  affected  person  fraudulently  demonstrated that the cleanup

 14  levels identified in the voluntary agreement were reached; or

 15    c. there is good cause for such modification or revocation.

 16    7. Upon the commissioner's determination pursuant to subdivision three

 17  or six of this section, the  commissioner  shall  provide  the  affected

 18  person  with  notice  of  such  determination and notice of the right to

 19  appeal such determination. The  commissioner's  determination  shall  be

 20  final unless a hearing is requested by certified mail to the commission-

 21  er  within  thirty  days  after  receiving notice of such determination.

 22  After such hearing the commissioner shall give notice of final  determi-

 23  nation  to  such  affected person. The commissioner may promulgate regu-

 24  lations to effectuate the purposes of this section.    The  commissioner

 25  shall promptly notify the commissioner of taxation and finance when such

 26  a  determination  pursuant  to  such subdivision six of this section has

 27  become final and is no longer subject to judicial appeal.

 28  § 27-1415. Payment of state costs.

                                        62                         12021-01-1

  1    1. Pursuant to timetables contained in the  voluntary  agreement,  the

  2  affected  person  shall  pay all state costs incurred in negotiating and

  3  overseeing implementation  of  such  agreement.  In  addition,  if  such

  4  affected  person  is  responsible for the disposal of hazardous waste or

  5  the  discharge of petroleum according to applicable principles of statu-

  6  tory or common law liability, unless such liability arises  solely  from

  7  ownership  or  operation of the affected site subsequent to the disposal

  8  of hazardous waste or the discharge of petroleum, such  affected  person

  9  shall  pay  all  costs incurred by the state up to the effective date of

 10  such voluntary agreement.

 11    2. Payment of such state costs identified in subdivision one  of  this

 12  section  shall be made to the remedial program transfer fund established

 13  pursuant to section ninety-seven-xxx of the state finance law.

 14    3. In the event that either the  affected  person  or  the  department

 15  withdraw  from a voluntary agreement before such agreement's completion,

 16  or upon completion of the activities undertaken pursuant to  the  volun-

 17  tary  agreement,  all  unexpended moneys which the affected person shall

 18  have paid into such account shall be reimbursed to the  affected  person

 19  after  a  final  accounting  of  all  claims upon such affected person's

 20  payments.

 21  § 27-1417. Change of use.

 22    1. At least sixty days before the  start  of  physical  alteration  or

 23  construction  constituting  a change of use at an affected site which is

 24  the subject of a covenant not to sue issued pursuant to section  27-1411

 25  of  this  title, or at least sixty days before a change of use involving

 26  any physical alteration or construction, as the case may be,  the  owner

 27  or  the  person  or  entity  proposing  to make such change of use shall

 28  provide written notification to the department.

                                        63                         12021-01-1

  1    2. No person shall engage in any activity at an affected site  remedi-

  2  ated  pursuant  to  this  title that is not consistent with restrictions

  3  placed upon the use of the property, or that will, or that reasonably is

  4  anticipated to: prevent or  interfere  significantly  with  a  proposed,

  5  ongoing,  or  completed  project  under this title; or expose the public

  6  health or the environment to a significantly increased threat of harm or

  7  damage at such affected site.

  8    3. For the purposes of this section:

  9    a. "change of use" means the transfer of title to all or  part  of  an

 10  affected  site being addressed under this title, or any activity that is

 11  likely to disrupt or expose  hazardous  waste  and/or  petroleum  or  to

 12  increase  direct  human exposure to hazardous waste and/or petroleum; or

 13  any other conduct that will or may tend to significantly interfere  with

 14  an ongoing or completed project under this title.

 15    b.  "complete  notice"  means  a  notice  that adequately apprises the

 16  department of the contemplated change and how such change may affect the

 17  property's proposed, ongoing, or completed remediation including but not

 18  limited to the ability to implement the  engineering  and  institutional

 19  controls associated with the affected site's remediation.

 20  § 27-1419. Immunity.

 21    Section eight of the court of claims act or any other provision of law

 22  to  the contrary notwithstanding, the state shall be immune from liabil-

 23  ity and action with respect to any act or omission done in the discharge

 24  of the department's responsibilities pursuant to this  title;  provided,

 25  however,  that  this  section  shall  not  limit the liability which may

 26  otherwise exist for the unlawful, willful or malicious acts or omissions

 27  on the part of the state, state agencies, or their  officers,  employees

                                        64                         12021-01-1

  1  or  agents;  or  for the ownership or responsibility for the disposal of

  2  hazardous waste and/or petroleum according to law.

  3  § 27-1421. Permit waivers.

  4    The  department,  by and through the commissioner, shall be authorized

  5  to exempt a person from the requirement to obtain  any  state  or  local

  6  permit  or  other  authorization  for any activity needed to implement a

  7  program for the investigation  and/or  remediation  of  hazardous  waste

  8  and/or  petroleum;  provided, that the activity is conducted in a manner

  9  which satisfies all substantive  technical  requirements  applicable  to

 10  like activity conducted pursuant to a permit.

 11  § 27-1423. Access to sites.

 12    The  department,  by and through the commissioner, shall be authorized

 13  to:

 14    1. Require that any person permit a duly designated officer or employ-

 15  ee of the department or  of  a  municipal  corporation,  or  any  agent,

 16  consultant  or  contractor  of  the  department or of a municipal corpo-

 17  ration, or any other person, including an employee, agent, consultant or

 18  contractor of a responsible  person  acting  at  the  direction  of  the

 19  department,  so authorized in writing by the commissioner, to enter upon

 20  any property which has or may have been  the  site  of  hazardous  waste

 21  and/or  petroleum disposal, and/or areas near such site, for the follow-

 22  ing purposes:

 23    a. to inspect and take samples of such hazardous waste and/or petrole-

 24  um and/or environmental media, utilizing such sampling methods as may be

 25  necessary or appropriate including without limitation soil  borings  and

 26  monitoring  wells;  provided,  that  no  sampling  methods involving the

 27  substantial disturbance of the ground surface of such  property  may  be

 28  utilized  until after a minimum of ten days written notice thereof shall

                                        65                         12021-01-1

  1  have been provided to the owner and operator and occupant of such  prop-

  2  erty,  if  identifiable  by  reasonable efforts, unless the commissioner

  3  makes a written determination  that  such  notice  will  not  allow  the

  4  protection  of  the  public health or the environment, in which case two

  5  days written notice shall be sufficient;

  6    b. to implement the  investigation  and/or  remediation  of  hazardous

  7  waste  and/or  petroleum  and/or  environmental media; provided, that no

  8  such work may be undertaken until after a minimum of  ten  days  written

  9  notice  thereof  shall  have been provided to the owner and operator and

 10  occupant of such property, if identifiable by reasonable efforts, unless

 11  the commissioner makes a written determination that such notice will not

 12  allow the protection of the public health or the environment,  in  which

 13  case two days written notice shall be sufficient.

 14    2. a. Require that any person furnish to the department, in a form and

 15  manner  as  prescribed  by  the  department, information relating to the

 16  current and past hazardous waste and/or petroleum generation, treatment,

 17  storage, disposal and/or transportation activities of such person or any

 18  other person now or formerly under the control of such  person;  in  the

 19  event  such  person  cannot  comply therewith, in whole or in part, such

 20  person shall  furnish  to  the  department  information  describing  all

 21  efforts  made  by  such  person  to comply therewith; any information so

 22  furnished to the department shall be considered a  "written  instrument"

 23  as defined in subdivision three of section 175.00 of the penal law;

 24    b. Require that any person permit a duly designated officer or employ-

 25  ee  of  the  department at all reasonable times to have access to and to

 26  copy all books, papers, documents and records relating  to  the  current

 27  and  past  hazardous waste and/or petroleum generation, treatment, stor-

                                        66                         12021-01-1

  1  age, disposal and/or transportation activities of  such  person  or  any

  2  person now or formerly under the control of such person;

  3    c.  Require,  by  subpoena  issued  in the name of the department, the

  4  production of books, papers, documents and other records, and the rendi-

  5  tion of testimony by deposition under oath of any person relating to the

  6  current and past hazardous waste and/or petroleum generation, treatment,

  7  storage, disposal and/or transportation activities of such person or any

  8  person now or formerly under the control of such person; such  subpoenas

  9  and  depositions shall be regulated by the civil practice law and rules;

 10  the commissioner may invoke the powers of the supreme court of the state

 11  of New York or any other  court  of  competent  jurisdiction  to  compel

 12  compliance therewith.

 13    §  15. Subdivision 8 of section 52-0101 of the environmental conserva-

 14  tion law, as added by chapter 512 of the laws of  1986,  is  amended  to

 15  read as follows:

 16    8.  "Hazardous  waste"  shall  have the definition set forth in  title

 17  nine of article twenty-seven  section 27-1301 of this chapter.

 18    § 16. Subdivision 1 of section 52-0103 of the environmental  conserva-

 19  tion  law,  as  amended  by chapter 9 of the laws of 1994, is amended to

 20  read as follows:

 21    1. For remediation of hazardous waste sites, as  set  forth  in  title

 22  three of this article and for the closure of municipal landfills, as set

 23  forth  in  title five of article fifty-four of this chapter, one billion

 24  two hundred million dollars of which : (i)  up to  one  hundred  million

 25  dollars shall be made available for state assistance payments toward the

 26  cost  of  the closure of municipal landfills, as set forth in title five

 27  of article fifty-four of this chapter;  and (ii) up to one hundred thou-

 28  sand dollars  shall  be  made  available  for  the  study  of  hazardous

                                        67                         12021-01-1

  1  substance  waste  disposal  sites, as defined in section 27-1316 of this

  2  chapter;  and

  3    §  17. Section 71-2705 of the environmental conservation law, as added

  4  by chapter 550 of the laws of 1980 and subdivision 1 as amended by chap-

  5  ter 493 of the laws of 1985, is amended to read as follows:

  6  § 71-2705. Violations of section 27-1423 and titles  9,  11  and  13  of

  7               article 27 of this chapter.

  8    1.  Civil and administrative sanctions. Any person who violates any of

  9  the provisions of, or who fails to perform any duty imposed  by  section

 10  27-1423  and titles 9, 11 and 13 of article 27 or any rule or regulation

 11  promulgated pursuant thereto, or any term or condition  of  any  certif-

 12  icate  or  permit issued pursuant thereto, or any final determination or

 13  order of the commissioner made pursuant to this title shall be liable in

 14  the case of a first violation, for a civil penalty not to  exceed  twen-

 15  ty-five  thousand  dollars  and  an  additional penalty of not more than

 16  twenty-five thousand dollars for each day during  which  such  violation

 17  continues, to be assessed by the commissioner after an opportunity to be

 18  heard  pursuant to the provisions of section 71-1709 of this chapter, or

 19  by the court in any action or proceeding pursuant to section 71-2727  of

 20  this chapter, and, in addition thereto, such person may by similar proc-

 21  ess be enjoined from continuing such violation and any permit or certif-

 22  icate  issued  to  such  person may be revoked or suspended or a pending

 23  renewal application denied. In the case of  a  second  and  any  further

 24  violation,  the  liability  shall  be  for a civil penalty not to exceed

 25  fifty thousand dollars for each such violation and an additional penalty

 26  not to exceed fifty thousand dollars for  each  day  during  which  such

 27  violation continues.

                                        68                         12021-01-1

  1    2.  Criminal  sanctions.  Any  person  who, having any of the culpable

  2  mental states defined in section 15.05 of the penal law,  shall  violate

  3  any  of  the  provisions  of or who fails to perform any duty imposed by

  4  section 27-1423 and titles 9, 11 and 13 of article 27 or any  rules  and

  5  regulations  promulgated  pursuant  thereto, or any term or condition of

  6  any certificate or permit issued pursuant thereto, or any final determi-

  7  nation or order of the commissioner made pursuant to this title shall be

  8  guilty of a misdemeanor and, upon conviction thereof, shall for a  first

  9  conviction  be  punished  by  a  fine not to exceed twenty-five thousand

 10  dollars per day of violation or by imprisonment for a term of  not  more

 11  than  one year, or both such fine and imprisonment. If the conviction is

 12  for an offense committed after a first conviction of such  person  under

 13  this  subdivision,  punishment  shall  be  by a fine not to exceed fifty

 14  thousand dollars per day of violation, or by imprisonment for  not  more

 15  than two years or by both such fine and imprisonment.

 16    §  18. Subdivision 1 of section 71-2727 of the environmental conserva-

 17  tion law, as amended by chapter 671 of the laws of 1986, is  amended  to

 18  read as follows:

 19    1. The commissioner, after investigation, notice and an opportunity to

 20  be  heard, may issue, modify and revoke orders prohibiting violations of

 21  any of the provisions of article  27 or 71  twenty-seven or  seventy-one

 22  of this chapter or of any rule or regulation promulgated pursuant there-

 23  to  and  requiring the taking of such remedial measures as may be neces-

 24  sary or appropriate.   Nothing  herein  contained  shall  be  deemed  to

 25  preclude the disposition of any matter within the department's jurisdic-

 26  tion  under  article twenty-seven of this chapter by stipulation, agreed

 27  settlement, consent order, default, or other informal method, upon  such

                                        69                         12021-01-1

  1  terms and subject to such conditions and limitations as the commissioner

  2  may deem just.

  3    §  19.  Article 71 of the environmental conservation law is amended by

  4  adding a new title 36 to read as follows:

  5                                  TITLE 36

  6                       PROTECTION OF NATURAL RESOURCES

  7  Section 71-3601. Declaration of policy and statement of purpose.

  8          71-3603 Definition.

  9          71-3605. Environmental easements; certain common law rules not

 10                     applicable.

 11          71-3607. Procedures for modifying or extinguishing environmental

 12                     easement.

 13          71-3609. Scope of this title.

 14          71-3611. Severability.

 15  § 71-3601. Declaration of policy and statement of purpose.

 16    The legislature hereby finds and declares that in order  to  implement

 17  the  state  policy  of  conserving,  improving  and  protecting  natural

 18  resources and the  environment  and  controlling  water,  land  and  air

 19  pollution,  the  imposition  of  institutional controls on affected real

 20  property is fundamental to the enhancement of  the  health,  safety  and

 21  welfare of the people of the state and their overall economic and social

 22  well being.

 23  § 71-3603. Definition.

 24    When  used  in this title, "environmental easement" means an easement,

 25  covenant, restriction or other interest in real property, created  under

 26  and  subject  to  the provisions of this title which limits or restricts

 27  development, management or use of such real property for the purpose  of

 28  protecting the public health or safety or natural resources or the envi-

                                        70                         12021-01-1

  1  ronment  from pollution affecting the real property in a manner consist-

  2  ent with the public policy and purpose set forth in section  71-3601  of

  3  this  title; provided that no such easement shall be acquired or held by

  4  the  state which is subject to the provisions of article fourteen of the

  5  constitution.

  6  § 71-3605. Environmental easements; certain common law rules not  appli-

  7               cable.

  8    1.  An  environmental  easement  may be created or conveyed only by an

  9  instrument which complies with the requirements of section 5-703 of  the

 10  general obligations law and which is subscribed by the grantee. It shall

 11  be of perpetual duration unless otherwise provided in such instrument.

 12    2.  An  environmental  easement shall be modified or extinguished only

 13  pursuant to the provisions of section 71-3607 of this  title.  Any  such

 14  modification  or  extinguishment  shall set forth in an instrument which

 15  complies with the requirements of section 5-703  of  the  general  obli-

 16  gations law or in an instrument filed in a manner prescribed for record-

 17  ing  a conveyance of real property pursuant to section two hundred nine-

 18  ty-one of the real property law.

 19    3. (a) An environmental easement shall be  held  only  by  the  state,

 20  except that the state shall not be authorized or empowered to acquire or

 21  hold  any  environmental  easement which is subject to the provisions of

 22  article fourteen of the constitution.

 23    (b) Any environmental easement created pursuant to  this  title  shall

 24  not limit, restrict or modify the right to construct, operate or contin-

 25  ue  the  use  of  any  facility, or impede any activity, duly authorized

 26  under the applicable provisions of  the  federal  natural  gas  act  (15

 27  U.S.C. §§ 717-717w).

                                        71                         12021-01-1

  1    4.  An  environmental  easement  shall be duly recorded and indexed as

  2  such in the office of the recording officer for the county  or  counties

  3  where  the  land  is situate in the manner prescribed by article nine of

  4  the real property law. The easement shall describe the  property  encum-

  5  bered by the easement by adequate legal description or by reference to a

  6  recorded  map  showing its boundaries and bearing the seal and signature

  7  of a licensed land surveyor, or if the  easement  encumbers  the  entire

  8  property  described in a deed of record, the easement may incorporate by

  9  reference the description in such deed, otherwise it shall refer to  the

 10  liber and page of the deed or deeds of the record owner or owners of the

 11  real  property burdened by the environmental easement. An instrument for

 12  the purpose of creating, conveying, modifying or terminating an environ-

 13  mental easement shall not be effective unless recorded.  The  department

 14  shall maintain a file of environmental easements.

 15    5.  An  environmental easement may be enforced in law or equity by its

 16  grantor or by the state, and is enforceable against  the  owner  of  the

 17  burdened  property.  Enforcement  shall  not  be defeated because of any

 18  subsequent adverse possession, laches, estoppel or  waiver.  No  general

 19  law  of the state which operates to defeat the enforcement of any inter-

 20  est in real property shall operate to  defeat  the  enforcement  of  any

 21  environmental  easement  unless  such  general  law expressly states the

 22  intent to defeat the enforcement of such easement or  provides  for  the

 23  exercise  of  the  power  of  eminent domain. It is not a defense in any

 24  action to enforce an environmental easement that:

 25    (a) It is not appurtenant to an interest in real property;

 26    (b) It is not of a character that has been recognized traditionally at

 27  common law;

 28    (c) It imposes a negative burden;

                                        72                         12021-01-1

  1    (d) It imposes affirmative obligations upon the owner of any  interest

  2  in the burdened property;

  3    (e) The benefit does not touch or concern real property; or

  4    (f) There is no privity of estate or of contract.

  5    6.  Agents, employees, or other representatives of the state may enter

  6  and inspect the property burdened by  an  environmental  easement  in  a

  7  reasonable  manner and at reasonable times to assure compliance with the

  8  restriction.

  9    7. The department may promulgate  regulations  establishing  standards

 10  for environmental easements.

 11    8.  Written notice shall be provided to the director of the budget and

 12  notice published in the state  register  and  the  environmental  notice

 13  bulletin  at least thirty days prior to the acquisition, or entry into a

 14  contract for the acquisition, on behalf of the  state  of  any  environ-

 15  mental easement.

 16  § 71-3607. Procedures for modifying or extinguishing environmental ease-

 17               ment.

 18    1. An environmental easement held by the state may only be modified or

 19  extinguished:

 20    (a) as provided in the instrument creating the easement; or

 21    (b)  in a proceeding pursuant to section nineteen hundred fifty-one of

 22  the real property actions and proceedings law; or

 23    (c) upon the exercise of the power of eminent domain; or

 24    (d) where land subject to an environmental easement or an interest  in

 25  such  land  is  required for a major utility transmission facility which

 26  has received a certificate of  environmental  compatibility  and  public

 27  need  pursuant to article seven of the public service law or is required

 28  for a major steam electric generating  facility  which  has  received  a

                                        73                         12021-01-1

  1  certificate  of  environmental compatibility and public need pursuant to

  2  article eight of the public service law or is required for a major elec-

  3  tric generating facility which has received a  certificate  of  environ-

  4  mental  compatibility  and  public  need  pursuant to article ten of the

  5  public service law, upon the filing of  such  certificate  in  a  manner

  6  prescribed  for  recording  a  conveyance  of  real property pursuant to

  7  section two hundred ninety-one of the real property  law  or  any  other

  8  applicable  provision of law; provided, the commissioner shall have made

  9  and filed in the main office of the department a  certificate  that  the

 10  exercise  of  such easement is no longer necessary to the accomplishment

 11  of its purpose, and consenting to  the  modification  or  extinguishment

 12  thereof.

 13    2.  Where an environmental easement is modified or extinguished pursu-

 14  ant to paragraph (d) of subdivision one of this section,  such  easement

 15  shall  be  modified or extinguished only to the minimum extent necessary

 16  to accommodate the facility which is the subject of the  certificate  of

 17  environmental compatibility and public need.

 18    3.  Nothing  in this section shall be construed to preclude the extin-

 19  guishment or modification of an environmental easement pursuant  to  the

 20  applicable  provisions of the federal natural gas act (15 U.S.C. §§ 717-

 21  717w).

 22  § 71-3609. Scope of this title.

 23    This title shall not affect any interests or rights in  real  property

 24  which  are  not environmental easements, and shall not affect the rights

 25  of owners to convey any interests in real property which they could  now

 26  create  under existing law without reference to the terms of this title.

 27  Nothing in this title shall diminish the powers granted by any other law

 28  to acquire interests or rights  in  real  property  by  purchase,  gift,

                                        74                         12021-01-1

  1  eminent  domain  or  otherwise  and to use the same for public purposes.

  2  Nothing in this title shall be construed to alter the  authority  other-

  3  wise  available  to the state to acquire environmental easements for the

  4  purposes of section 71-3601 of this title by eminent domain.

  5  § 71-3611. Severability.

  6    The  provisions  of  this title shall be severable, and if any clause,

  7  sentence, paragraph, subdivision or part of this title shall be adjudged

  8  by any court of competent jurisdiction  to  be  invalid,  such  judgment

  9  shall not affect, impair or invalidate the remainder  thereof, but shall

 10  be  confined in its operation to the clause, sentence, paragraph, subdi-

 11  vision or part thereof directly involved in  the  controversy  in  which

 12  such  judgment  shall  have  been rendered; provided that if an environ-

 13  mental easement created pursuant to this  title  is  determined  by  any

 14  court  of  competent  jurisdiction to be land or water or an interest in

 15  land or water subject to the  provisions  of  article  fourteen  of  the

 16  constitution  then  the  authority  of the state to hold or acquire such

 17  easement and the conveyance to the state of such easement shall be  void

 18  ab initio.

 19    §  20.  The section   heading of section 213 of the civil practice law

 20  and rules, as amended by chapter 43 of the laws of 1975, is  amended  to

 21  read as follows:

 22    Actions to be commenced within six years: where not otherwise provided

 23  for;  on  contract;  on sealed instrument; on bond or note, and mortgage

 24  upon real property; by state based on misappropriation of public proper-

 25  ty; based on mistake; by corporation against director, officer or stock-

 26  holder; based on fraud; by state based on claims pursuant to subdivision

 27  ten of section 27-1313 of the environmental conservation law;  by  state

                                        75                         12021-01-1

  1  based  on  injury  to,  or destruction of, or loss of, or loss of use of

  2  natural resources.

  3    §  21.  Section  213 of the civil practice law and rules is amended by

  4  adding three new subdivisions 9, 10 and 11 to read as follows:

  5    9. an action by the  state  under  authority  of  subdivision  ten  of

  6  section  27-1313  of the environmental conservation law; the time within

  7  which the action must be commenced shall be computed from the initiation

  8  of physical on-site construction of the remedial program.

  9    10. an action for contribution under authority of  subdivision  eleven

 10  of section 27-1313 of the environmental conservation law; the time with-

 11  in  which such action must be commenced shall be computed from the later

 12  of:

 13    a. the date of judgment in any action under any law, state or federal,

 14  respecting the costs that are the subject of the claim for contribution;

 15  or

 16    b. the date of the issuance of an order or agreement by the department

 17  of environmental conservation respecting the costs that are the  subject

 18  of  the  claim  for contribution or respecting activities the conduct of

 19  which caused  the expenditure of the costs that are the subject  of  the

 20  claim for contribution.

 21    11. an action under authority of subdivision twelve of section 27-1313

 22  of  the environmental conservation law; the time within which the action

 23  must  be  commenced  shall  be  computed  from  the  completion  of  the

 24  construction  of  the  inactive  hazardous  waste disposal site remedial

 25  program.

 26    § 22. The general municipal law is amended by  adding  a  new  section

 27  970-r to read as follows:

                                        76                         12021-01-1

  1    § 970-r. State assistance: brownfield redevelopment area planning.  1.

  2  Definitions.    a.  "Brownfield  redevelopment area" is an area where: a

  3  number of abandoned, idled or under-utilized properties are clustered in

  4  a geographic location; contamination by hazardous waste  as  defined  in

  5  section  27-1301  of  the environmental conservation law or petroleum as

  6  defined in section one hundred seventy-two  of  the  navigation  law  is

  7  suspected    of  being  widespread;  and the remediation of any one site

  8  would not address all suspected  sources  of  contamination  and  enable

  9  beneficial environmental and economic use.

 10    b.  A  "brownfield  redevelopment area plan" is a plan undertaken by a

 11  municipality or not-for-profit corporation  to  develop  a  strategy  to

 12  return  a brownfield redevelopment area to productive economic use while

 13  protecting human health and the environment.

 14    2. The secretary of state is authorized to provide  technical  assist-

 15  ance to municipalities and not-for-profit corporations acting in cooper-

 16  ation  with  municipalities,  to  enhance their capabilities to plan the

 17  redevelopment of brownfield redevelopment areas.

 18    3. Within the limits of  appropriations  therefor,  the  secretary  of

 19  state  is  authorized  to  provide,  on  a  competitive basis, financial

 20  assistance to municipalities and not-for-profit corporations  acting  in

 21  cooperation  with municipalities, to advance plans for the redevelopment

 22  of brownfield redevelopment areas, as follows:

 23    a. in the preparation of a pre-planning study to  develop  information

 24  necessary for designating a brownfield redevelopment area.  Pre-planning

 25  activities  include, but are not limited to, basic information about the

 26  boundaries of the area, the number and size  of  brownfield  sites,  the

 27  current  and  anticipated  uses of the properties and groundwater in the

 28  area, known data about the environmental conditions of  the  properties,

                                        77                         12021-01-1

  1  ownership of the sites in the area and other information deemed relevant

  2  by the secretary of state.  Such study, when completed, shall be submit-

  3  ted  to  the  secretary  of  state.   The municipality or not-for-profit

  4  corporation with the approval of the municipality may then file  a peti-

  5  tion  requesting  designation  of the area as a brownfield redevelopment

  6  area for the approval of the secretary of state;

  7    b. in the preparation of a brownfield redevelopment area plan.   Plan-

  8  ning activities eligible to receive funding include, but are not limited

  9  to,  a  strategy which defines the end uses of the brownfield redevelop-

 10  ment area once the properties  have  been  remediated  and  revitalized,

 11  including  any  infrastructure needs, and identifies actions required to

 12  reach such proposed end-uses, and other information deemed  relevant  by

 13  the  secretary  of state.   Such plan must be formulated in consultation

 14  with community based organizations and affected landowners. The  munici-

 15  pality  or  not-for-profit  corporation with the approval of the munici-

 16  pality shall submit such plan for  the  approval  of  the  secretary  of

 17  state.

 18    c.  in  the  preparation  of site assessments of properties owned by a

 19  municipality or a party not responsible for the remediation of hazardous

 20  waste or petroleum according to applicable principles  of  statutory  or

 21  common  law  liability,  or  a responsible party according to applicable

 22  principles of statutory or common law liability if such person's liabil-

 23  ity arises solely from ownership or operation of the site subsequent  to

 24  the  disposal  of  hazardous  waste or the discharge of petroleum in the

 25  brownfield redevelopment area. Assessment activities  include,  but  are

 26  not limited to, testing of properties to determine the nature and extent

 27  of  the  contamination  (including  soil and groundwater), environmental

 28  assessments, the development  of  a  proposed  remediation  strategy  to

                                        78                         12021-01-1

  1  address  any  identified  contamination  and any other activities deemed

  2  appropriate by the secretary in consultation with  the  commissioner  of

  3  environmental   conservation.  Any  environmental  assessment  shall  be

  4  subject  to the review and approval of the commissioner of environmental

  5  conservation. State assistance payments shall  not  exceed  seventy-five

  6  percent  of the cost of such plans. The secretary of state, in consulta-

  7  tion with the commissioner of environmental conservation, may enter into

  8  a contract with a municipality or not-for-profit corporation,  including

  9  such  terms and conditions as the secretary of state and commissioner of

 10  environmental conservation may deem appropriate, to  provide  the  state

 11  assistance.

 12    4.  When determining the eligibility of a municipality or not-for-pro-

 13  fit corporation for such assistance, the secretary of state, in  consul-

 14  tation  with  the  commissioner  of environmental conservation and other

 15  appropriate agencies, shall consider, among other matters,  the  follow-

 16  ing:  benefit  to human health, benefit to the environment, the economic

 17  benefit to the state (including new  employment  opportunities  and  new

 18  public  recreational  resources),  and  the  strength  of local support.

 19  Funding preferences shall be given to proposals for areas: with a demon-

 20  strated need for restoration; that would yield economic benefit  to  the

 21  state  and  create  new  jobs  or  a new public resource; that receive a

 22  strong level of local support; and where a majority  of  the  properties

 23  are owned by a municipality or party not responsible for the remediation

 24  of  hazardous  waste  or petroleum according to applicable principles of

 25  statutory or common law liability or a responsible  party  according  to

 26  applicable  principles  of  statutory  or  common  law liability if such

 27  person's liability arises solely from ownership or operation of the site

                                        79                         12021-01-1

  1  subsequent to the disposal of hazardous waste or the discharge of petro-

  2  leum.

  3    5.  The secretary of state shall provide from available monies techni-

  4  cal support to municipalities and not-for-profit corporations to prepare

  5  their brownfield redevelopment areas program. Such support includes  but

  6  is not limited to personal and non-personal services.

  7    §  23.  The navigation law is amended by adding a new section 172-a to

  8  read as follows:

  9    § 172-a. Liability exclusions.  1. Notwithstanding  subdivision  thir-

 10  teen  of section one hundred seventy-two of this article the term "owner

 11  or operator" does not include a person that is a  lender  that,  without

 12  participating  in the management of property, holds indicia of ownership

 13  primarily to protect the security interest of the person in that proper-

 14  ty; nor does it include a person that is a lender that did  not  partic-

 15  ipate  in  management  of property prior to foreclosure, notwithstanding

 16  that the person forecloses  on  such  property  and  after  foreclosure,

 17  sells, re-leases (in the case of a lease finance transaction), or liqui-

 18  dates  the property, maintains business activities, winds up operations,

 19  undertakes in a non-negligent manner remedial actions under  the  direc-

 20  tion  of  the  department,  with  respect to such property, or takes any

 21  other measure to preserve, protect, or prepare such  property  prior  to

 22  sale  or disposition, if the person seeks to sell, re-lease (in the case

 23  of a lease finance transaction), or otherwise divest the person  of  the

 24  property    at the earliest practicable commercially reasonable time, on

 25  commercially reasonable terms, taking into account market conditions and

 26  legal and regulatory requirements; provided, however, that  such  lender

 27  shall not make a claim against the fund arising out of a discharge asso-

 28  ciated with such property.  For purposes of this subdivision:

                                        80                         12021-01-1

  1    (a)  the term "participate in management" means actually participating

  2  in the management or operational affairs of a  property;  and  does  not

  3  include  merely  having  the  capacity  to influence, or the unexercised

  4  right to control, property operations;

  5    (b)  a  person  that  is  a lender and that holds indicia of ownership

  6  primarily to protect a security interest in a property shall be  consid-

  7  ered  to  participate in management only if, while the borrower is still

  8  in possession of the property encumbered by the security  interest,  the

  9  person  exercises  decisionmaking control over the environmental compli-

 10  ance related to the  property,  such  that  the  person  has  undertaken

 11  responsibility  for  the  hazardous waste handling or disposal practices

 12  related to the property; or exercises control at a level  comparable  to

 13  that  of  a manager of the property, such that the person has assumed or

 14  manifested responsibility for the overall  management  of  the  property

 15  encompassing  day-to-day  decisionmaking  with  respect to environmental

 16  compliance; or over all or substantially all of  the  operational  func-

 17  tions  (as  distinguished from financial or administrative functions) of

 18  the property other than the function of environmental compliance;

 19    (c) the term "participate in management" does not  include  performing

 20  an  act or failing to act prior to the time at which a security interest

 21  is created in a property; and

 22    (d) the term "participate in management" does not  include  holding  a

 23  security  interest  or  abandoning  or  releasing  a  security interest;

 24  including in the terms of an extension of credit, or in  a  contract  or

 25  security  agreement  relating to the extension, a covenant, warranty, or

 26  other term or condition that relates to environmental compliance;  moni-

 27  toring  or enforcing the terms and conditions of the extension of credit

 28  or security interest; monitoring or undertaking one or more  inspections

                                        81                         12021-01-1

  1  of  the  property;  requiring a response action or other lawful means of

  2  addressing the release or threatened release of  a  hazardous  waste  in

  3  connection  with  the property prior to, during, or on the expiration of

  4  the term of the extension of credit; providing financial or other advice

  5  or  counseling  in  an  effort  to mitigate, prevent, or cure default or

  6  diminution in the value of the property;  restructuring,  renegotiating,

  7  or otherwise agreeing to alter the terms and conditions of the extension

  8  of credit or security interest, exercising forbearance; exercising other

  9  remedies  that may be available under applicable law for the breach of a

 10  term or condition of the extension of credit or security  agreement;  or

 11  conducting in a non-negligent manner a remedial action directly or under

 12  the  direction  of  the department of environmental conservation, if the

 13  actions do not rise to the level of participating in management  (within

 14  the meaning of this subdivision);

 15    (e)  the  term  "extension  of credit" includes a lease finance trans-

 16  action in which the lessor does not initially select the leased property

 17  and does not during the lease term control the daily operations or main-

 18  tenance of the property; or that conforms with regulations issued by the

 19  appropriate federal banking agency (as defined in 12 USC  section  1813)

 20  or  the  superintendent  of  banks  or  with  regulations  issued by the

 21  National Credit Union Administrative Board, as appropriate;

 22    (f) the term "financial or administrative function" includes  a  func-

 23  tion  such  as  that  of  a  credit  manager,  accounts payable officer,

 24  accounts receivable officer, personnel manager,  comptroller,  or  chief

 25  financial officer, or a similar function;

 26    (g)  the  term  "foreclosure"  and  "foreclose"  means,  respectively,

 27  acquiring and to acquire, a property through purchase at  sale  under  a

 28  judgment  or  decree,  power of sale, or nonjudicial foreclosure sale; a

                                        82                         12021-01-1

  1  deed in lieu of foreclosure, or similar conveyance from  a  trustee;  or

  2  repossession,  if  the  property was security for an extension of credit

  3  previously contracted; conveyance pursuant to  an  extension  of  credit

  4  previously  contracted,  including the termination of a lease agreement;

  5  or any other formal or informal manner by which the person acquires, for

  6  subsequent disposition, title to or possession of a property in order to

  7  protect the security interest of the person;

  8    (h) the term "lender" means  an  insured  depository  institution  (as

  9  defined  in 12 USC section 1813); an insured credit union (as defined in

 10  12 USC section 1752); a bank or association  chartered  under  the  Farm

 11  Credit  Act of 1971 (12 U.S.C. 2001 et seq.); a leasing or trust company

 12  that is an affiliate of an insured depository  institution;  any  person

 13  (including a successor or assignee of any such person) that makes a bona

 14  fide  extension  of  credit  to or takes or acquires a security interest

 15  from a nonaffiliated person; the Federal National Mortgage  Association,

 16  the  Federal  Home  Loan  Mortgage Corporation, the Federal Agricultural

 17  Mortgage Corporation, or any other entity that in  a  bona  fide  manner

 18  buys  or  sells  loans  or  interests in loans; a person that insures or

 19  guarantees against a default in the repayment of an extension of credit,

 20  or acts as a surety with respect to an extension of credit, to a  nonaf-

 21  filiated  person;  and  a  person that provides title insurance and that

 22  acquires a property as a result  of  assignment  or  conveyance  in  the

 23  course of underwriting claims and claims settlement;

 24    (i)  the  term "operational function" includes a function such as that

 25  of a facility or plant  manager,  operations  manager,  chief  operating

 26  officer, or chief executive officer; and

 27    (j)  the  term  "security interest" includes a right under a mortgage,

 28  deed of trust, assignment, judgment lien,  pledge,  security  agreement,

                                        83                         12021-01-1

  1  factoring  agreement,  or lease and any other right accruing to a person

  2  to secure the repayment of money, the performance  of  a  duty,  or  any

  3  other obligation by a nonaffiliated person.

  4    2.  Notwithstanding subdivision thirteen of section one hundred seven-

  5  ty-two of this article the term, "owner or operator"  does  not  include

  6  the  state  or  a  public  corporation  which  acquired,  and thereafter

  7  retained without participating  in  the  management  of  such  property,

  8  ownership or control involuntarily or voluntarily by virtue of its func-

  9  tion as sovereign; provided, however, that such public corporation shall

 10  not make  a claim against the fund arising out of a discharge associated

 11  with  such  property. Neither the state nor any public corporation shall

 12  incur under this chapter any liability as to matters within  the  juris-

 13  diction of the department as a result of actions taken in response to an

 14  emergency  created by the discharge or threatened discharge of petroleum

 15  by another person, provided that such actions by  the  state  or  public

 16  corporation  did not constitute reckless, willful, wanton or intentional

 17  misconduct.  As used in this subdivision:

 18    (a) "public corporation" means a public corporation as defined in  the

 19  general construction law;

 20    (b) "involuntary acquisition of ownership or control" includes, but is

 21  not limited to, the following:

 22    (i)  acquisitions  by the state or a public corporation, or its agent,

 23  acting as a conservator or receiver pursuant to a clear and direct stat-

 24  utory mandate or regulatory authority;

 25    (ii) acquisitions of assets through foreclosure and its equivalents as

 26  defined in paragraph (g) of subdivision one of this section,  or  other-

 27  wise,  by the state or a public corporation in the course of administer-

 28  ing a loan, loan guarantee or loan insurance program;

                                        84                         12021-01-1

  1    (iii) acquisitions by the state or a public  corporation  pursuant  to

  2  seizure or forfeiture authority;

  3    (iv)  acquisitions  by the state or a public corporation as the result

  4  of tax delinquency purposes; provided, that such ownership or control is

  5  not retained primarily for investment purposes.

  6    (c) "management participation" means that the state or a public corpo-

  7  ration is actually participating in the management or operation  of  the

  8  property but does not include the mere capacity to influence, ability to

  9  influence or unexercised right to control the operation of the property.

 10  Nothing  contained in this subdivision affects the applicability of this

 11  section in favor of a holder of a security  interest  according  to  the

 12  terms thereof.

 13    3.  Notwithstanding subdivision thirteen of section one hundred seven-

 14  ty-two of this article the term, "owner or operator" includes a  fiduci-

 15  ary;  provided,  however, that such liability on the part of a fiduciary

 16  shall not exceed the assets held  in  the  fiduciary  capacity  if  such

 17  person is not liable independently of such person's ownership as a fidu-

 18  ciary  or actions taken in a fiduciary capacity; provided, however, that

 19  such fiduciary shall not make a claim against the fund arising out of  a

 20  discharge associated with such property.

 21    (a) For purposes of this subdivision, (i) the term "fiduciary" means a

 22  person  acting  for the benefit of another party as a bona fide trustee;

 23  executor; administrator; custodian; guardian of estates or  guardian  ad

 24  litem;  receiver;  conservator;  committee  of  estates of incapacitated

 25  persons; personal representative; trustee (including a  successor  to  a

 26  trustee)  under an indenture agreement, trust agreement, lease, or simi-

 27  lar financing agreement, for debt securities, certificates  of  interest

 28  or  certificates  of participation in debt securities, or other forms of

                                        85                         12021-01-1

  1  indebtedness as to which the trustee is not, in the capacity of trustee,

  2  the lender; or representative in any other capacity that the department,

  3  after providing public notice, determines to be similar to  the  various

  4  capacities  previously described in this paragraph; and does not include

  5  either a person that is acting as a fiduciary with respect to a trust or

  6  other fiduciary estate that was organized for the primary purpose of, or

  7  is engaged in, actively carrying on a trade or business for  profit,  or

  8  to  facilitate one or more estate plans, or because of the incapacity of

  9  a natural person or a person that acquires ownership  or  control  of  a

 10  property  with the objective purpose of avoiding liability of the person

 11  or any other person;

 12    (ii) the term "fiduciary capacity" means the capacity of a  person  in

 13  holding title to a property, or otherwise having control of or an inter-

 14  est  in  a property, pursuant to the exercise of the responsibilities of

 15  the person as a fiduciary.

 16    (b) Nothing in this subdivision affects the rights  or  immunities  or

 17  other  defenses  that  are  available under law that are applicable to a

 18  person subject to this subdivision or creates any liability for a person

 19  or a private right of action against a fiduciary or any other person.

 20    (c) Nothing in this subdivision applies to a person  if  that  person,

 21  acts  in  a  capacity  other  than that of a fiduciary or in a fiduciary

 22  capacity and in that capacity, directly or indirectly  benefits  from  a

 23  trust  or fiduciary relationship; or is a beneficiary and fiduciary with

 24  respect to the same fiduciary estate and as a fiduciary, receives  bene-

 25  fits  that  exceed  customary or reasonable compensation, and incidental

 26  benefits, permitted under other applicable law.

 27    (d) This subdivision does not preclude  a  claim  under  this  chapter

 28  against the assets of the estate or trust administered by the fiduciary;

                                        86                         12021-01-1

  1  or  a  nonemployee agent or independent contractor retained by a fiduci-

  2  ary.

  3    4.  Notwithstanding subdivision thirteen of section one hundred seven-

  4  ty-two of this article the term, "owner or operator" includes an  indus-

  5  trial  development agency created under the general municipal law, other

  6  than one that holds bare legal title to such property; has  not  partic-

  7  ipated  with  any  party  responsible  under  law for the remediation of

  8  contamination in, on, or from such property to attempt to  have  such  a

  9  party  avoid  its  remedial liability; has not exercised any contractual

 10  rights it may have or had, if any, under the lease,  guarantee,  or  any

 11  other  financing  agreement pursuant to which the industrial development

 12  agency would assume control over the actual operation of  the  property;

 13  has not taken possession or control of the property; and does not make a

 14  claim  against  the fund arising out of a discharge associated with such

 15  property. Nothing in this subdivision affects the rights  or  immunities

 16  or  other defenses that are available under law that are applicable to a

 17  person subject to this subdivision or creates any liability for a person

 18  or a private right of action against an industrial development agency or

 19  any other person.

 20    5. Notwithstanding the  foregoing,  a  person  receiving  a  liability

 21  exemption  or  liability limitation under subdivision one, two, three or

 22  four of this section shall be deemed to have waived any  claim  pursuant

 23  to  section  one hundred eighty-one of this article that such person may

 24  have against the New York environmental  protection  and  spill  compen-

 25  sation fund.

 26    §  24. Paragraph (a) of subdivision 2 of section 176 of the navigation

 27  law, as amended by chapter 584 of the laws of 1992, is amended  to  read

 28  as follows:

                                        87                         12021-01-1

  1    (a)  Upon  the  occurrence of a discharge of petroleum, the department

  2  shall respond promptly and proceed to cleanup and remove  the  discharge

  3  in  accordance  with environmental priorities or may, at its discretion,

  4  direct the discharger to promptly cleanup and remove the discharge.  The

  5  department  shall  be responsible for cleanup and removal or as the case

  6  may be, for retaining agents and contractors who shall operate under the

  7  direction of that department for such purposes. Implementation of clean-

  8  up and removal procedures after each discharge  shall  be  conducted  in

  9  accordance  with  environmental priorities and procedures established by

 10  the department.  Such procedures shall provide:

 11    (i) the objective of a cleanup and removal that the department  deter-

 12  mines  does  not  constitute  an immediate response cleanup shall be the

 13  protection of public health and the environment, with the minimum objec-

 14  tive being to eliminate or mitigate all significant  threats  to  public

 15  health  and  the  environment presented by such discharge through proper

 16  application of scientific and engineering principles; and that the reme-

 17  dy must be selected upon due consideration of the following factors:

 18    (A) conformance to standards and criteria that are generally  applica-

 19  ble,  consistently  applied, and officially promulgated, that are either

 20  directly applicable, or that are not directly applicable but  are  rele-

 21  vant  and appropriate, unless good cause exists why conformity should be

 22  dispensed with, and with consideration being given  to  guidance  deter-

 23  mined, after the exercise of engineering judgement, to be applicable;

 24    (B) overall protectiveness of public health and the environment;

 25    (C) short-term effectiveness;

 26    (D) long-term effectiveness;

 27    (E)  reduction  of  toxicity,  mobility,  and  volume  with treatment;

 28  addressing a hot spot of petroleum that  permanently  and  significantly

                                        88                         12021-01-1

  1  reduces  the volume, toxicity, and/or mobility of the petroleum is to be

  2  preferred over a method that does not do so. The hierarchy  of  remedial

  3  technologies shall be as set forth under section 27-0105 of the environ-

  4  mental conservation law;

  5    (F) cost;

  6    (G) implementability;

  7    (H) community acceptance; and

  8    (I) land use: the current, intended, and reasonably anticipated future

  9  land uses for the property and its surroundings, if ascertainable.

 10    (ii) the objective of a cleanup and removal that the department deter-

 11  mines does constitute an immediate response cleanup shall be to effectu-

 12  ate  a prompt cleanup and removal of contamination to ensure restoration

 13  of the environment to pre-spill conditions.  For purposes of this  para-

 14  graph,  an  immediate  response  cleanup  shall  be one that comprises a

 15  discrete set of activities which can  be  undertaken  without  extensive

 16  investigation  and  evaluation, to prevent, mitigate, or remedy environ-

 17  mental damage or the consequences of environmental  damage  attributable

 18  to the discharge.

 19    (iii)  the remediation of soil as part of any cleanup and removal of a

 20  discharge under this article shall be performed in accordance  with  the

 21  soil cleanup levels promulgated pursuant to section 27-1316 of the envi-

 22  ronmental conservation law.

 23    (iv) for all cleanup and removal actions other than immediate response

 24  cleanups, the department shall place a notification in the environmental

 25  notice  bulletin  and shall notify individuals, groups, and/or organiza-

 26  tions that have expressed interest in or are affected  by  such  cleanup

 27  and  removal  actions  upon the initiation of an investigation, upon the

 28  successful completion of such investigation, and upon the submission  of

                                        89                         12021-01-1

  1  a  proposed  remedy.  The  department  shall  accept public comments for

  2  forty-five days prior to approving such remedy.

  3    §  25. Paragraph (b) of subdivision 2 of section 176 of the navigation

  4  law is relettered paragraph (c) and a new paragraph (b) is added to read

  5  as follows:

  6    (b) The department shall determine cleanup levels for contaminants  in

  7  the  soil  using  site  specific data until the commissioner promulgates

  8  rules and regulations pursuant to section 27-1315 and  subdivision  five

  9  of  section 27-1316 of the environmental conservation law and thereafter

 10  shall use the soil cleanup levels set forth  in  such  rules  and  regu-

 11  lations, as may be amended.

 12    §  26.  Section  176  of the navigation law is amended by adding a new

 13  subdivision 9 to read as follows:

 14    9. The department, by and through the commissioner, shall  be  author-

 15  ized  to  exempt  a  person  from the requirement to obtain any state or

 16  local permit or other authorization for any activity needed to implement

 17  a program for the cleanup and removal  of  petroleum  pursuant  to  this

 18  article;  provided,  that  the  activity  is conducted in a manner which

 19  satisfies all substantive  technical  requirements  applicable  to  like

 20  activity conducted pursuant to a permit.

 21    §  27.  Subdivision 1 of section 181 of the navigation law, as amended

 22  by chapter 712 of the laws of 1989, is amended to read as follows:

 23    1.  Any  (a) Except as provided in paragraph (e) of this  subdivision,

 24  any  person who has discharged petroleum shall be strictly liable, with-

 25  out regard to fault, for all cleanup and removal costs  and  all  direct

 26  and  indirect  damages,  no matter by whom sustained, as defined in this

 27  section. In addition to cleanup and removal costs and damages, any  such

 28  person  who  is notified of such release and who did not undertake relo-

                                        90                         12021-01-1

  1  cation of persons residing in the area of the  discharge  in  accordance

  2  with  paragraph (c) of subdivision seven of section one hundred seventy-

  3  six of this article, shall be liable to the fund for an amount equal  to

  4  two times the actual and necessary expense incurred by the fund for such

  5  relocation pursuant to section one hundred seventy-seven-a of this arti-

  6  cle.   Additionally, the department shall be entitled to a penalty in an

  7  amount no less than one and no more than three  times  all  cleanup  and

  8  removal  costs  if  it proves by a preponderance of the evidence that it

  9  has expended reasonable efforts as set forth in  this  subdivision.  For

 10  purposes  of  this  subdivision,  the department has expended reasonable

 11  efforts to obtain a voluntary commitment if such person is  informed  in

 12  writing  of  the  department's offer to negotiate a voluntary commitment

 13  and such responsible person does not respond to the department's  offer;

 14  or  responds by refusing to negotiate; or starts to negotiate and there-

 15  after discontinues same; or acts in bad faith in the  negotiation  proc-

 16  ess,  and  continues not to make such commitment after receiving a final

 17  written notification from the department that apprises such  responsible

 18  person  that  failure to enter into the voluntary commitment will result

 19  in the state's recovery of all costs, both direct and indirect, respect-

 20  ing such discharge; then the state shall  be  entitled  to  recover  all

 21  costs,  both  direct  and  indirect,  respecting such discharge that the

 22  state shall have incurred plus, to the extent that the state can show by

 23  a preponderance of the evidence that it  has  fulfilled  the  procedural

 24  steps  in  this paragraph, a penalty in an amount up to three times, but

 25  no less than one time, all costs, both direct and  indirect,  the  state

 26  shall have incurred in carrying out same.

 27    (b)  Notwithstanding  paragraph  (a)  of this subdivision, such person

 28  shall only be liable to the state for an amount equal to all costs, both

                                        91                         12021-01-1

  1  direct and indirect, the  state  shall  have  incurred  respecting  such

  2  discharge  if  such  person  can  establish  by  a  preponderance of the

  3  evidence that for good cause shown, it failed and refused to enter  into

  4  such voluntary commitment with the department.

  5    (c)  Two  or  more owners and/or persons described in paragraph (a) of

  6  subdivision three of this section may  claim  contribution  among  them-

  7  selves  in  an  action brought in a court of competent jurisdiction, and

  8  the amount of contribution to which any of them  is  entitled  shall  be

  9  equal  to  the  excess  paid by that person over and above such person's

 10  equitable share of costs. However, the amount of contribution  to  which

 11  any  of  them  is  entitled shall be three times the excess paid by that

 12  person over and above such person's equitable share of costs  associated

 13  with  the  carrying out of such person's obligations under the voluntary

 14  commitment with the department described in paragraph (a) of this subdi-

 15  vision if one-third of such award shall be paid to the remedial  program

 16  transfer  fund  established  pursuant to section ninety-seven-xxx of the

 17  state finance law and the court finds that:

 18    (i) the contribution defendant is a person described in paragraph  (a)

 19  of this subdivision for such site;

 20    (ii)  the  contribution  plaintiff  gave  thirty  days  notice  to the

 21  contribution defendant of the plaintiff's intention to seek contribution

 22  in the event that the contribution defendant declined to participate  in

 23  the implementation of the contribution plaintiff's voluntary commitment;

 24    (iii)  the  contribution  defendant  failed or refused to enter into a

 25  settlement agreement with the contribution plaintiff; and

 26    (iv) the contribution plaintiff entered into  a  voluntary  commitment

 27  with the department to remediate the site.

                                        92                         12021-01-1

  1    (d)  A person misidentified by the department as a person described in

  2  paragraph (a) of this subdivision but which  entered  into  a  voluntary

  3  commitment  with  the  department may recover from the New York environ-

  4  mental protection and spill compensation fund created under section  one

  5  hundred  seventy-nine  of  this article the costs it shall have incurred

  6  that are reasonable in light of the action agreed to be undertaken.

  7    (e) There shall be no liability under this subdivision  for  a  person

  8  otherwise  liable  who  can establish by a preponderance of the evidence

  9  that the discharge was caused solely by an act of God; an act of war; or

 10  an act or omission of a third party other than an employee or  agent  of

 11  such person, or than one whose act or omission occurs in connection with

 12  a  contractual  relationship, existing directly or indirectly, with such

 13  person (except where the sole  contractual  arrangement  arises  from  a

 14  published  tariff  and  acceptance  for  carriage by a common carrier or

 15  rail), if such person establishes by a  preponderance  of  the  evidence

 16  that such person is other than one that transports or supplies petroleum

 17  and  exercised  due care with respect to the petroleum concerned, taking

 18  into consideration the characteristics of such petroleum,  in  light  of

 19  all relevant facts and circumstances, and took precautions against fore-

 20  seeable  acts  or omissions of any such third party and the consequences

 21  that could foreseeably result from such acts or omissions; or any combi-

 22  nation of them. For purposes of this paragraph, the  term,  "contractual

 23  relationship," includes, but is not limited to, land contracts, deeds or

 24  other  instruments transferring title or possession, unless the property

 25  on which the discharge concerned is located was acquired by such  person

 26  after  the discharge on, in, or at such property, and such person estab-

 27  lishes one or more of the circumstances described in  subparagraph  (i),

 28  (ii) or (iii) of this paragraph by a preponderance of the evidence:

                                        93                         12021-01-1

  1    (i)  At the time such person acquired the property such person did not

  2  know and had no reason to know that any petroleum was discharged on, in,

  3  or at the property. To establish that such person had no reason to know,

  4  such person must have undertaken, at the time of acquisition, all appro-

  5  priate  inquiry  into  the  previous  ownership and uses of the property

  6  consistent with good commercial or customary practice in  an  effort  to

  7  minimize  liability. For purposes of the preceding sentence, the commis-

  8  sioner shall take into account any specialized knowledge  or  experience

  9  on  the  part  of such person, the relationship of the purchase price to

 10  the value of the property if uncontaminated, commonly known  or  reason-

 11  ably  ascertainable  information  about the property, the obviousness of

 12  the presence or likely presence of contamination at  the  property,  and

 13  the ability to detect such contamination by appropriate inspection; or

 14    (ii) Such person is a government entity which acquired the property by

 15  escheat, or through any other involuntary transfer or acquisition; or

 16    (iii) Such person acquired the property by inheritance or bequest, and

 17  that  such  person  exercised  due  care  with  respect to the petroleum

 18  concerned, taking into consideration the characteristics of such  petro-

 19  leum,  in light of all relevant facts and circumstances and took precau-

 20  tions against foreseeable acts or omissions of any such third party  and

 21  the  consequences  that could foreseeably result from such acts or omis-

 22  sions.

 23    (f) Nothing in this subdivision shall diminish the  liability  of  any

 24  previous owner or operator of the property who would otherwise be liable

 25  under  this  subdivision. Notwithstanding this paragraph, if such person

 26  obtained actual knowledge of the discharge at  the  property  when  such

 27  person owned the property and then subsequently transferred ownership of

 28  the  property  to another person without disclosing such knowledge, such

                                        94                         12021-01-1

  1  person shall be treated as a person responsible for the discharge and no

  2  defense under this paragraph shall be available to such person.  Nothing

  3  in this paragraph shall affect the liability under this subdivision of a

  4  person  who,  by  any  act  or  omission,  caused or contributed to such

  5  discharge of petroleum.

  6    § 28. Subdivision 5 of section 180 of the navigation law,  as  amended

  7  by chapter 35 of the laws of 1985, is amended and a new subdivision 6 is

  8  added to read as follows:

  9    5.  To  disburse  moneys  from  the fund for cleanup and removal costs

 10  pursuant to a certification of claims by the commissioner . ;

 11    6. To submit on an annual basis to the governor and legislature within

 12  sixty days of the end of the state fiscal year an independent  audit  of

 13  the New York environmental protection and spill compensation fund.

 14    §  29.  Subdivision 4 of section 181 of the navigation law, as amended

 15  by chapter 458 of the laws of 1978, is amended and a new  subdivision  7

 16  is added to read as follows:

 17    4.   An   Notwithstanding subdivision one of this section and subdivi-

 18  sions one, two, three and four of section one hundred  seventy-two-a  of

 19  this  article,  an  act  or  omission caused solely by war, sabotage, or

 20  governmental negligence shall be the only defenses which may  be  raised

 21  by any owner or operator of a major facility or vessel responsible for a

 22  discharge in any action arising under the provisions of this article.

 23    7.  Notwithstanding  the  foregoing,  a  person  receiving a liability

 24  exemption or liability limitation under subdivision one of this  section

 25  or  under  subdivision  one,  two,  three or four of section one hundred

 26  seventy-two-a of this article shall be deemed to have waived  any  claim

 27  pursuant  to  subdivision  two of this section that such person may have

                                        95                         12021-01-1

  1  against the New York environmental  protection  and  spill  compensation

  2  fund.

  3    §  30.  Section  183 of the navigation law, as added by chapter 845 of

  4  the laws of 1977, is amended to read as follows:

  5    § 183. Settlements.  1. The administrator shall attempt to promote and

  6  arrange a settlement between the claimant and the person responsible for

  7  the discharge. If the source of the  discharge  can  be  determined  and

  8  liability is conceded, the claimant and the alleged discharger may agree

  9  to  a  settlement  which shall be final and binding upon the parties and

 10  which will waive all recourse against the fund.

 11    2. After the successful implementation of an order  on  consent  which

 12  provides  for  the  cleanup  and  removal  of  the discharge, the person

 13  subject to the order shall submit to the department  a  written  certif-

 14  ication  prepared  by  an individual licensed or otherwise authorized in

 15  accordance with article one hundred forty-five of the education  law  to

 16  practice  the profession of engineering who shall have been in charge of

 17  the implementation of the  cleanup  and  removal  activities  undertaken

 18  pursuant  to such order substantiating that, at a minimum, such remedial

 19  activities satisfied the remedial requirements set forth in such order.

 20    3. Upon the department's receipt of such certification, the department

 21  shall  review the final engineering report and the data submitted pursu-

 22  ant to the order as well as any other relevant information regarding the

 23  discharge. The department shall provide the person, upon  its  satisfac-

 24  tion  that  the  remedial  requirements  for  the  discharge  have  been

 25  achieved, with a covenant not to sue, binding upon the  state,  for  any

 26  liability,  including  any  future  liability  or  claim for the further

 27  cleanup or removal of petroleum relating to the discharge that  was  the

 28  subject  of  such order except that a person responsible for the cleanup

                                        96                         12021-01-1

  1  and removal of the discharge pursuant to section one hundred  eighty-one

  2  of  this  article  shall  not  receive  a  release  for natural resource

  3  damages. Additionally, the state nonetheless shall reserve  all  of  its

  4  rights  concerning,  and  such covenant shall not extend to, any further

  5  investigation or remedial action the department deems  necessary,  as  a

  6  result of:

  7    (a) a failure to comply with the terms and conditions of the order;

  8    (b)  a  fraudulent demonstration that the cleanup levels identified in

  9  the order were reached;

 10    (c) a release or threatened release at  the  site  subsequent  to  the

 11  effective date of the order;

 12    (d) a change in the site's use subsequent to the effective date of the

 13  order  to a use requiring a lower level of residual contamination unless

 14  additional remedial activities are undertaken which shall meet the stan-

 15  dard for protection of public health and the environment that applies to

 16  remedial actions for such use under this article;

 17    (e) information received, in whole or in part, after the  department's

 18  execution  of  such  order, which indicates that the cleanup and removal

 19  performed, or to be performed, under such order will not be, or is  not,

 20  protective of public health or the environment for such use of the site;

 21  or

 22    (f)  the  department  determines  that  the  remedy implemented is not

 23  protective of public health or the environment.

 24    4. The reservation contained in paragraph (d) of subdivision three  of

 25  this section shall not be reserved in the event a person remediates soil

 26  contamination to soil category 1, as that term is described in paragraph

 27  a of subdivision three of section 27-1316 of the environmental conserva-

 28  tion law.

                                        97                         12021-01-1

  1    5.  The reservation contained in paragraph (f) of subdivision three of

  2  this section shall not be reserved for a person who is  not  responsible

  3  for  the  cleanup  and  removal  of the discharge pursuant to applicable

  4  principles of statutory or common law liability, or who is liable solely

  5  as a result of ownership or operation of the affected site subsequent to

  6  the  disposal  of  hazardous waste or the discharge of petroleum, in the

  7  event that such person remediates soil contamination to soil category 1,

  8  as that term is described in paragraph a of subdivision three of section

  9  27-1316 of the environmental conservation law.

 10    6. The covenant not to sue  issued  pursuant  to  this  section  shall

 11  extend  to  the  person's  successors  or assigns through acquisition of

 12  title to the site to which the liability release applies and to a person

 13  who develops or otherwise occupies the site, provided that such  persons

 14  act  in good faith to adhere to the requirements of such order and work-

 15  plan. However, such covenant does not extend, and cannot be transferred,

 16  to a person who is responsible as of the date  of  the  issuance  of  an

 17  order on consent for the discharge of petroleum according to section one

 18  hundred  eighty-one  of this article unless that person was party to the

 19  order on which such covenant was based. A notice of the order containing

 20  such covenant shall be recorded and indexed as a declaration of covenant

 21  in the office of the recording officer for the county or counties  where

 22  such  site  is  located  in the manner prescribed by article nine of the

 23  real property law within thirty days of signing the order if the  person

 24  is  an owner or within thirty days of acquiring title of the site if the

 25  person is a prospective purchaser.

 26    7. The provisions of this title shall not affect an action or a claim,

 27  including a claim for contribution, that  a  person  who  implements  or

 28  completes  an order executed by such person and the department providing

                                        98                         12021-01-1

  1  for the cleanup and removal of the discharge pursuant  to  this  article

  2  has or may have against a third party.

  3    8.  Nothing  in  this  section shall be construed to affect either the

  4  liability of any person with respect to any costs, damages, or  investi-

  5  gative or remedial activities that are not included in the order; or the

  6  department's  authority  to maintain an action or proceeding against any

  7  person who is not subject to the order.

  8    9. A person who has settled its liability to the department under this

  9  section shall not  be  liable  for  claims  for  contribution  regarding

 10  matters  addressed  in the order. Such settlement does not discharge any

 11  of the persons responsible under law for the cleanup and removal of  the

 12  discharge  unless  its  terms  so  provide, but it reduces the potential

 13  liability of the others by the amount of the settlement.

 14    10. Nothing in this section shall be construed to affect the authority

 15  of the department to reach settlement with other persons consistent with

 16  its authority under applicable law.

 17    § 31.   Subdivisions 24, 25 and 26  of  section  1281  of  the  public

 18  authorities law, subdivision 24 as amended by chapter 857 of the laws of

 19  1982,  subdivision  25 as amended by chapter 295 of the laws of 1994 and

 20  subdivision 26 as added by chapter 282 of the laws of 1979, are  amended

 21  to read as follows:

 22    24. "Hazardous waste" shall  mean a waste which appears on the list or

 23  satisfies  the  characteristics promulgated by the commissioner of envi-

 24  ronmental conservation pursuant to section 27-0903 of the  environmental

 25  conservation  law  and  until,  but  not after, the promulgation of such

 26  list, a waste or combination of wastes, which because of  its  quantity,

 27  concentration, or physical, chemical or infectious characteristics may:

                                        99                         12021-01-1

  1    a.  Cause,  or significantly contribute to an increase in mortality or

  2  an  increase  in  serious  irreversible  or  incapacitating   reversible

  3  illness; or

  4    b.  Pose  a substantial present or potential hazard to human health or

  5  the environment when improperly treated, stored,  transported,  disposed

  6  or  otherwise  managed   have  the  same meaning as set forth in section

  7  27-1301 of the environmental conservation law.

  8    25. "Inactive hazardous waste disposal site" shall  mean any  area  or

  9  structure used for the long term storage or final placement of hazardous

 10  waste including, but not limited to, dumps, landfills, lagoons and arti-

 11  ficial  treatment  ponds,  as  to  which  area or structure no permit or

 12  authorization issued by the department of environmental conservation  or

 13  a federal agency for the disposal of hazardous waste was in effect after

 14  the  effective  date of this title and any inactive area or structure on

 15  the National Priorities List  established  under  the  authority  of  42

 16  U.S.C.A.  Section  9605   have  the same meaning as set forth in section

 17  27-1301 of the environmental conservation law.

 18    26. "Inactive hazardous waste disposal site  remedial  program"  shall

 19   mean  activities  undertaken  to  eliminate,  remove, abate, control or

 20  monitor health and/or environmental  hazards  or  potential  hazards  in

 21  connection  with  inactive hazardous waste disposal sites or to treat or

 22  dispose of wastes and  waste  contaminated  materials  from  such  sites

 23  including, but not limited to, grading, contouring, trenching, grouting,

 24  capping,  excavation,  transporting,  incineration,  chemical treatment,

 25  biological treatment or the  construction  of  leachate  collection  and

 26  treatment  facilities   have  the  same  meaning as set forth in section

 27  27-1301 of the environmental conservation law.

                                        100                        12021-01-1

  1    § 32. Section 1389-a of the public health law, as added by chapter 282

  2  of the laws of 1979, subdivision 1 as amended by chapter 857 of the laws

  3  of 1982 and subdivision 2 as amended by chapter 295 of the laws of 1994,

  4  is amended to read as follows:

  5    §  1389-a.  Definitions.    1.  "Hazardous waste" means  a waste which

  6  appears on the list or satisfies the characteristics promulgated by  the

  7  commissioner  of  environmental conservation pursuant to section 27-0903

  8  of the environmental conservation law and  until,  but  not  after,  the

  9  promulgation  of  such  list, or a waste or combination of wastes, which

 10  because of its quantity, concentration, or physical, chemical or  infec-

 11  tious characteristics may:

 12    a.  Cause,  or significantly contribute to an increase in mortality or

 13  an  increase  in  serious  irreversible  or  incapacitating   reversible

 14  illness; or

 15    b.  Pose  a substantial present or potential hazard to human health or

 16  the environment when improperly treated, stored,  transported,  disposed

 17  or  otherwise  managed  hazardous waste as defined in section 27-1301 of

 18  the environmental conservation law.

 19    2. "Inactive hazardous waste disposal site" means  any area or  struc-

 20  ture  used  for  the  long  term storage or final placement of hazardous

 21  waste including, but not limited to, dumps, landfills, lagoons and arti-

 22  ficial treatment ponds, as to which  area  or  structure  no  permit  or

 23  authorization  issued by the department of environmental conservation or

 24  a federal agency for the disposal of hazardous waste was in effect after

 25  the effective date of this title and any inactive area or  structure  on

 26  the  National  Priorities  List  established  under  the authority of 42

 27  U.S.C.A. Section 9605  an inactive hazardous waste disposal site as that

                                        101                        12021-01-1

  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

                                        102                        12021-01-1

  1  other measure to preserve, protect, or prepare such site prior  to  sale

  2  or  disposition, if the person seeks to sell, re-lease (in the case of a

  3  lease finance transaction), or otherwise divest the person of such  site

  4  at the earliest practicable commercially reasonable time, on commercial-

  5  ly reasonable terms, taking into account market conditions and legal and

  6  regulatory requirements. For purposes of this paragraph:

  7    (i)  the term "participate in management" means actually participating

  8  in the management or operational affairs of  such  site;  and  does  not

  9  include  merely  having  the  capacity  to influence, or the unexercised

 10  right to control, such site's operations;

 11    (ii) a person that is a lender and that  holds  indicia  of  ownership

 12  primarily  to  protect a security interest in such site shall be consid-

 13  ered to participate in management only if, while the borrower  is  still

 14  in  possession of such site, the person exercises decisionmaking control

 15  over the environmental compliance related to such site,  such  that  the

 16  person has undertaken responsibility for the hazardous waste handling or

 17  disposal practices related to such site; or exercises control at a level

 18  comparable  to  that of a manager of such site, such that the person has

 19  assumed or manifested responsibility for the overall management of  such

 20  site  encompassing  day-to-day  decisionmaking  with respect to environ-

 21  mental compliance; or over all or substantially all of  the  operational

 22  functions  (as distinguished from financial or administrative functions)

 23  of such site other than the function of environmental compliance;

 24    (iii) the term "participate in management" does not include performing

 25  an act or failing to act prior to the time at which a security  interest

 26  is created in such site;

 27    (iv)  the  term "participate in management" does not include holding a

 28  security interest  or  abandoning  or  releasing  a  security  interest;

                                        103                        12021-01-1

  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,

                                        104                        12021-01-1

  1  accounts receivable officer, personal  manager,  comptroller,  or  chief

  2  financial officer, or a similar function;

  3    (vii)  the  terms  "foreclosure"  and  "foreclose" mean, respectively,

  4  acquiring and to acquire, such site through purchase  at  sale  under  a

  5  judgement  or  decree, power of sale, or nonjudicial foreclosure sale; a

  6  deed in lieu of foreclosure, or similar conveyance from  a  trustee;  or

  7  repossession,  if  such  site  was  security  for an extension of credit

  8  previously contracted; conveyance pursuant to  an  extension  of  credit

  9  previously  contracted,  including the termination of a lease agreement;

 10  or any other formal or informal manner by which the person acquires, for

 11  subsequent disposition, title to or possession of such site in order  to

 12  protect the security interest of the person;

 13    (viii)  the  term "lender" means an insured depository institution (as

 14  defined in 12 USC section 1813); an insured credit union (as defined  in

 15  12  USC  section  1752);  a bank or association chartered under the Farm

 16  Credit Act of 1971 (12 U.S.C. 2001 et seq.); a leasing or trust  company

 17  that  is  an  affiliate of an insured depository institution; any person

 18  (including a successor or assignee of any such person) that makes a bona

 19  fide extension of credit to or takes or  acquires  a  security  interest

 20  from  a nonaffiliated person; the Federal National Mortgage Association,

 21  the Federal Home Loan Mortgage  Corporation,  the  Federal  Agricultural

 22  Mortgage  Corporation,  or  any  other entity that in a bona fide manner

 23  buys or sells loans or interests in loans;  a  person  that  insures  or

 24  guarantees against a default in the repayment of an extension of credit,

 25  or  acts as a surety with respect to an extension of credit, to a nonaf-

 26  filiated person; and a person that provides  title  insurance  and  that

 27  acquires such site as a result of assignment or conveyance in the course

 28  of underwriting claims and claims settlements;

                                        105                        12021-01-1

  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;

                                        106                        12021-01-1

  1    (B)  acquisitions  by the state or a public corporation, or its agent,

  2  acting as a conservator or receiver pursuant to a clear and direct stat-

  3  utory mandate or regulatory authority;

  4    (C) acquisitions of assets through foreclosure and its equivalents, or

  5  otherwise,  by the state or a public corporation in the course of admin-

  6  istering a loan, loan guarantee or loan insurance program;

  7    (D) acquisitions by the state or  a  public  corporation  pursuant  to

  8  seizure or forfeiture authority; and

  9    (E) acquisitions by the state or a public corporation as the result of

 10  tax  delinquency  purposes,  provided, that such ownership or control is

 11  not retained primarily for investment purposes.

 12    (iii) "management participation" means that the state or public corpo-

 13  ration is actually participating in the management or operation  of  the

 14  property but does not include the mere capacity to influence, ability to

 15  influence or unexercised right to control the operation of the property.

 16  Nothing  contained  in this paragraph affects the applicability of para-

 17  graph a  of this subdivision in favor of a holder of a security interest

 18  according to the terms thereof.

 19    c. Such term includes any  person  owning  or  operating  an  inactive

 20  hazardous waste disposal site, including a fiduciary; provided, however,

 21  that  such  liability  on  the  part of a fiduciary shall not exceed the

 22  assets held in the fiduciary capacity if such person is not liable inde-

 23  pendently of such person's ownership as a fiduciary or actions taken  in

 24  a fiduciary capacity including, but not limited to, the fiduciary negli-

 25  gently  causing  or contributing to the release or threatened release of

 26  hazardous waste at such site.

 27    (i) For purposes of this paragraph:

                                        107                        12021-01-1

  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.

                                        108                        12021-01-1

  1    (iii)  Nothing  in  this  paragraph applies to a person if that person

  2  acts in a capacity other than that of a fiduciary or  in  a  beneficiary

  3  capacity  and  in  that capacity, directly or indirectly benefits from a

  4  trust or fiduciary relationship; or is a  beneficiary  and  a  fiduciary

  5  with  respect  to the same fiduciary estate and as a fiduciary, receives

  6  benefits that exceed customary or  reasonable  compensation,  and  inci-

  7  dental benefits, permitted under other applicable law.

  8    d.  Such  term  includes  any  person  owning or operating an inactive

  9  hazardous waste disposal site, including an industrial development agen-

 10  cy created under the general municipal law, other than  one  that  holds

 11  bare  legal  title  to  such  site;  has not participated with any party

 12  responsible under law for the remediation of contamination  in,  on,  or

 13  from  such  site  to  attempt  to  have  such a party avoid its remedial

 14  liability; has not exercised any contractual rights it may have or  had,

 15  if  any,  under  the  lease, guarantee, or any other financing agreement

 16  pursuant to which the industrial development agency would assume control

 17  over the actual operation of the site; and has not taken  possession  or

 18  control  of  the  site.  Nothing in this paragraph affects the rights or

 19  immunities or other defenses that  are  available  under  law  that  are

 20  applicable to an industrial development agency; or creates any liability

 21  for a person or a private right of action against an industrial develop-

 22  ment agency or any other person.

 23    5.  "Waste"  means  any garbage, refuse, sludge from a waste treatment

 24  plant, water supply treatment plant, or air pollution control  facility,

 25  and other discarded material, whether or not such material may eventual-

 26  ly  be  used for some other purpose, including solid, liquid, semisolid,

 27  or contained gaseous material  resulting  from  industrial,  commercial,

 28  mining  and  agricultural  operations  or from community activities, and

                                        109                        12021-01-1

  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    § 33. 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

                                        110                        12021-01-1

  1  the  significant  threat  to  the  environment attributable to hazardous

  2  waste disposed at an inactive hazardous waste disposal site  was  caused

  3  solely by an act of God; an act of war; or an act or omission of a third

  4  party  other than an employee or agent of such person, or than one whose

  5  act or omission occurs in connection with  a  contractual  relationship,

  6  existing directly or indirectly, with such person (except where the sole

  7  contractual  arrangement  arises  from a published tariff and acceptance

  8  for carriage by a common carrier or rail), if such person establishes by

  9  a preponderance of the evidence that such person exercised due care with

 10  respect to the hazardous waste concerned, taking into consideration  the

 11  characteristics  of such hazardous waste, in light of all relevant facts

 12  and circumstances and took precautions against foreseeable acts or omis-

 13  sions of any such third party and the consequences that  could  foresee-

 14  ably result from such acts or omissions; or any combination of them. For

 15  purposes  of  this  paragraph,  the  term,  "contractual  relationship,"

 16  includes, but is not limited to, land contracts, deeds or other  instru-

 17  ments  transferring  title  or  possession,  unless the real property on

 18  which the site concerned is located was acquired by  such  person  after

 19  the  disposal  or  placement  of  the hazardous waste on, in, or at such

 20  site, and such person establishes  one  or  more  of  the  circumstances

 21  described  in  subparagraph  (i),  (ii)  or (iii) of this paragraph by a

 22  preponderance of the evidence:

 23    (i) At the time such person acquired the site such person did not know

 24  and had no reason to know that any hazardous waste which is the  subject

 25  of  the  significant  threat determination was disposed of on, in, or at

 26  the site.  To establish that such person has no  reason  to  know,  such

 27  person must have undertaken, at the time of acquisition, all appropriate

 28  inquiry  into  the  previous  ownership and uses of such site consistent

                                        111                        12021-01-1

  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    § 34. Section 1389-e of the public health law is REPEALED.

 19    §  35.  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    § 36. 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)  of subdivision 3 as added by chapter 413 of the laws of 1996, para-

                                        112                        12021-01-1

  1  graph (e) of subdivision 3 as amended by chapter 9 of the laws of  1994,

  2  subdivision  6  as  amended by chapter 38 of the laws of 1985, paragraph

  3  (a) of subdivision 12 as amended by section 13 of part C of chapter  389

  4  of the laws of 1997 and subdivision 3 as amended and subdivisions 13, 14

  5  and  15  as  added  by  chapter 512 of the laws of 1986, are amended and

  6  three new subdivisions 15, 16 and 17 are added to read as follows:

  7    1. There is hereby established in the custody of the state comptroller

  8  a nonlapsing revolving fund to be known as the "hazardous waste remedial

  9  fund" which shall consist of  a  "site  investigation  and  construction

 10  account"   and ,  an "industry fee transfer account,"  and  an "environ-

 11  mental restoration project account,"  and  a  "hazardous  waste  cleanup

 12  account".

 13    2. Such fund shall consist of all of the following:

 14    (a)  all  moneys  appropriated for transfer  transferred to the fund's

 15  site investigation and construction account; (b)  all  fines  and  other

 16  sums  accumulated  in  the  fund  prior to April first, nineteen hundred

 17  eighty-eight pursuant to section 71-2725 of the environmental  conserva-

 18  tion  law  for deposit in the fund's site investigation and construction

 19  account; (c)  all moneys collected or  received  by  the  department  of

 20  taxation  and  finance  pursuant to section 27-0923 of the environmental

 21  conservation law  for  deposit  in  the  fund's  industry  fee  transfer

 22  account;  (d)  all moneys paid into the fund pursuant to section 72-0201

 23  of the environmental conservation law which shall be  deposited  in  the

 24  fund's industry fee transfer account; (e)  all moneys paid into the fund

 25  pursuant  to  section one hundred eighty-six of the navigation law which

 26  shall be deposited in the fund's industry fee  transfer  account;   (f) 

 27  (d)  all  moneys  paid  into the fund by municipalities for repayment of

 28  landfill closure loans made pursuant to former  title  five  of  article

                                        113                        12021-01-1

  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-xxx of  this  chap-

  7  ter, to the fund's hazardous waste cleanup account; and (g) other moneys

  8  credited or transferred thereto from any other fund or source for depos-

  9  it in the fund's site investigation and construction account.

 10    3.  Moneys  of  the hazardous waste remedial fund except monies in the

 11  industry fee transfer account, when allocated,  shall  be  available  to

 12   the department of environmental conservation  all state departments and

 13  agencies for the following purposes:

 14    (a)  inactive hazardous waste disposal site remedial programs pursuant

 15  to section 27-1313 of the environmental  conservation  law  and  section

 16  thirteen hundred eighty-nine-b of the public health law;

 17    (b)  cleaning  up  or  restoring  to its original state any area where

 18  hazardous wastes were disposed of or possessed unlawfully  in  violation

 19  of  article  twenty-seven of the environmental conservation law. For the

 20  purposes of this section "the original state of the area" shall mean the

 21  reasonably ascertainable condition of the property immediately prior  to

 22  the  unlawful  disposal  or,  if  it  is impracticable to determine such

 23  condition, then it is the reasonable environmentally sound condition  of

 24  the area;

 25    (c)  inactive  hazardous waste site identification, classification and

 26  investigation actions including testing, analyses, record  searches  and

 27  other  expenditures  necessary  to  develop the state inactive hazardous

                                        114                        12021-01-1

  1  waste disposal site remedial plan required pursuant to  section  27-1305

  2  of the environmental conservation law;

  3    (d)  financing the non-federal share of the cost of clean up, and site

  4  remediation activities as well as post-closure operation and maintenance

  5  costs, pursuant to the  federal  Comprehensive  Environmental  Response,

  6  Compensation and Liability Act of 1980;

  7    (e) emergency response action to clean up spills or abate other public

  8  health  or environmental hazards involving hazardous wastes except those

  9  provided for under the New York state environmental protection and spill

 10  compensation fund;

 11    (f)  the study of hazardous substance waste disposal sites pursuant to

 12  section 27-1316 of the environmental conservation law  and  section  one

 13  thousand three hundred eighty-nine-e of the public health law; and

 14    (g)  to undertake such remedial measures as the department of environ-

 15  mental  conservation may determine necessary due to environmental condi-

 16  tions related to the property subject to an agreement to  provide  state

 17  assistance  under  title  five of article fifty-six of the environmental

 18  conservation law that were unknown to such department at the time of its

 19  approval of such agreement which indicates that conditions on such prop-

 20  erty are not sufficiently protective of human health for its  reasonably

 21  anticipated  uses  or  due to information received, in whole or in part,

 22  after such department's approval of such agreement's  final  engineering

 23  report and certification, which indicates that such agreement's remedial

 24  activities  are  not  sufficiently  protective  of human health for such

 25  property's reasonably anticipated uses; and, respecting  the  monies  in

 26  the  environmental  restoration project account in excess of ten million

 27  dollars, shall provide state assistance  under  title  five  of  article

 28  fifty-six of the environmental conservation law;

                                        115                        12021-01-1

  1    (g)  with respect to moneys in the hazardous waste cleanup account, to

  2  pay the reasonable costs incurred by the state in negotiating and  over-

  3  seeing implementation of voluntary agreements and conducting remediation

  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  thirteen of  this

 23  section  are  imposed, estimate the amount of revenues to be received by

 24  the industry fee transfer account of this fund in  the  next  succeeding

 25  twenty months and the transfers which will be required to be made during

 26  the  same period. When calculating the estimate of industry fee transfer

 27  account revenues available for the purpose of  certifying,  pursuant  to

 28  this  subdivision,  when  such account's balance will be insufficient to

                                        116                        12021-01-1

  1  make the transfer required by subdivision eleven of  this  section,  the

  2  comptroller  shall  add to the amount estimated to actually be available

  3  an additional credit factor as  determined  by  paragraph  (b)  of  this

  4  subdivision.  If the comptroller determines that the industry fee trans-

  5  fer account will, at any time during the succeeding twenty month period,

  6  lack sufficient funds to make the transfer required by subdivision elev-

  7  en of this section, the comptroller shall so certify to the  state super

  8  fund management board, created pursuant to section 27-1319 of the  envi-

  9  ronmental conservation law, and to the  governor and the legislature.

 10    13.  Upon the receipt of a certification provided pursuant to subdivi-

 11  sion  twelve of this section, the state superfund management board shall

 12  review and analyze the historical pattern of  revenue  received  by  the

 13  industry  fee  transfer  account  and the long term projection of future

 14  transfers from such account, and shall  report  on  or  before  December

 15  first  of  such year to the governor and the legislature its recommenda-

 16  tions, if any, as to the sources of additional revenues which  could  be

 17  used  to supplement the revenues to be received by such fund in order to

 18  achieve the equal sharing of debt service costs as implemented in subdi-

 19  vision nine of this section.

 20    14.  In the absence of further direction by law, effective April first

 21  of the fiscal year immediately following the certification by the  comp-

 22  troller  made pursuant to subdivision twelve of this section, surcharges

 23  in the following amount shall be imposed: (a) twenty-five percent of the

 24  fees imposed by  sections  72-0402  and  72-0502  of  the  environmental

 25  conservation  law.  Notwithstanding  any  other  provision of law to the

 26  contrary, moneys collected from such surcharge  shall  be  deposited  in

 27  their entirety to the industry fee transfer account established pursuant

 28  to  subdivision  one  of  this  section;  (b)  fifty percent of the fees

                                        117                        12021-01-1

  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

                                        118                        12021-01-1

  1  subdivision fifteen of this section, all moneys currently  deposited  in

  2  the  industry  fee transfer account of the hazardous waste remedial fund

  3  pursuant to subdivision two of this section shall be  deposited  in  the

  4  remedial  program  transfer fund.  Further, effective April first of the

  5  state fiscal year following such  certification,  subdivisions  thirteen

  6  and fourteen of this section shall be deemed repealed.

  7    17.  Notwithstanding  any  law to the contrary, and in accordance with

  8  section four of this chapter, the comptroller is hereby  authorized  and

  9  directed,  upon  the  request of the director of the budget, to transfer

 10  moneys from the site  investigation  and  construction  account  of  the

 11  hazardous  waste remedial fund to the hazardous waste cleanup account of

 12  the hazardous waste remedial fund.

 13    § 37. The state finance law is amended by adding a new section  97-xxx

 14  to read as follows:

 15    §  97-xxx.  Remedial  program transfer fund. 1. There is hereby estab-

 16  lished in the joint custody of the comptroller and the  commissioner  of

 17  taxation and finance a special fund to be known as the "remedial program

 18  transfer fund".

 19    2. Such fund shall consist of all of the following:

 20    (a) registration fees collected pursuant to subdivision two of section

 21  17-1009 of the environmental conservation law for deposit in this fund;

 22    (b)  all license fees, fines and penalties collected pursuant to para-

 23  graph (b) of subdivision one and paragraph (a) of  subdivision  four  of

 24  section  one  hundred  seventy-four  of  the  navigation  law, penalties

 25  collected pursuant to paragraphs (b) and  (c)  of  subdivision  four  of

 26  section  one  hundred  seventy-four-a  of  the  navigation  law,  moneys

 27  collected pursuant to section one hundred eighty-seven of the navigation

                                        119                        12021-01-1

  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.

                                        120                        12021-01-1

  1    3. Notwithstanding any law to the contrary,  and  in  accordance  with

  2  section  four  of this chapter, the comptroller is hereby authorized and

  3  directed, upon the request of the director of the budget, for each state

  4  fiscal year to transfer from the general fund to  this  fund  up  to  an

  5  amount  equivalent  to the projected amount of moneys to be deposited or

  6  transferred into this fund pursuant to paragraphs (a),  (b),  (c),  (d),

  7  (e),  (f),  (g), (h), (i) and (l) of subdivision two of this section for

  8  each such state fiscal year.

  9    4. Revenues in the remedial program transfer fund shall be kept  sepa-

 10  rate and shall not be commingled with any other moneys in the custody of

 11  the comptroller. All deposits of such revenues shall, if required by the

 12  comptroller,  be  secured  by obligations of the United States or of the

 13  state having a market value equal at all times to  the  amount  of  such

 14  deposits  and all banks and trust companies are authorized to give secu-

 15  rity for such deposits. Any such revenues in such  fund  may,  upon  the

 16  discretion  of  the comptroller, be invested in obligations in which the

 17  comptroller is authorized to invest pursuant to section ninety-eight  of

 18  this article.

 19    5.  Notwithstanding  any  law  to the contrary, and in accordance with

 20  section four of this chapter, the comptroller is hereby  authorized  and

 21  directed,  upon  the  request of the director of the budget, to transfer

 22  moneys deposited in the remedial program  transfer  fund,  and  interest

 23  accrued  thereon,  to the environmental protection and oil spill compen-

 24  sation fund or to the hazardous waste cleanup account of  the  hazardous

 25  waste remedial fund.

 26    §  38. Paragraph (a) of subdivision 2 of section 179 of the navigation

 27  law, as amended by chapter 83 of the laws of 1995, is amended and a  new

 28  subdivision 3 is added to read as follows:

                                        121                        12021-01-1

  1    (a)  An  account  which  shall  be  credited with all license fees and

  2  penalties collected pursuant to paragraph (b)  of  subdivision  one  and

  3  paragraph (a) of subdivision four of section one hundred seventy-four of

  4  this  article, penalties collected pursuant to paragraph (b) of subdivi-

  5  sion  four  of section one hundred seventy-four-a of this article, money

  6  collected pursuant to section one hundred eighty-seven of this  article,

  7  all  penalties  collected  pursuant to section one hundred ninety-two of

  8  this article, all moneys transferred from the remedial program  transfer

  9  fund  pursuant  to  subdivision  five of section ninety-seven-xxx of the

 10  state finance law for deposit in the New York  environmental  protection

 11  and  spill compensation fund and registration fees collected pursuant to

 12  subdivision two of section 17-1009  of  the  environmental  conservation

 13  law.

 14    3.  Notwithstanding  any  general  or special law to the contrary, all

 15  monies collected pursuant to paragraph (b) of subdivision one and  para-

 16  graph  (a)  of  subdivision  four of section one hundred seventy-four of

 17  this article, penalties collected pursuant to paragraph (c) of  subdivi-

 18  sion  one  and  paragraph (b) of subdivision four of section one hundred

 19  seventy-four of this article effective April first of the  state  fiscal

 20  year  succeeding  the state fiscal year certified in subdivision fifteen

 21  of section ninety-seven-b of the state finance law, penalties  collected

 22  pursuant  to  paragraphs  (b) and (c) of subdivision four of section one

 23  hundred seventy-four-a of this  article,  money  collected  pursuant  to

 24  section   one  hundred  eighty-seven  of  this  article,  all  penalties

 25  collected pursuant to section one hundred ninety-two  of  this  article,

 26  and  registration  fees collected pursuant to subdivision two of section

 27  17-1009 of the environmental conservation law shall be deposited in  the

                                        122                        12021-01-1

  1  remedial program transfer fund in the fiscal year beginning April first,

  2  two thousand one, and for each fiscal year thereafter.

  3    §  39. Subdivision 2 of section 17-1009 of the environmental conserva-

  4  tion law, as amended by chapter 83 of the laws of 1995,  is  amended  to

  5  read as follows:

  6    2.  All  owners  shall  register the facility with the department. The

  7  department is authorized to assess a fee according to a  schedule  based

  8  on the size and type of facility, not to exceed  two hundred fifty  five

  9  hundred  dollars  per  facility.  Such  fee shall be paid at the time of

 10  registration or registration  renewal.  Registration  shall  be  renewed

 11  every  five years or whenever title to a facility is transferred, which-

 12  ever occurs first.   All fees collected  pursuant  to  this  subdivision

 13  shall  be deposited in the New York environmental and spill compensation

 14  fund established pursuant to section one  hundred  seventy-nine  of  the

 15  navigation  law . ; provided, however, that such fees shall be deposited

 16  in the remedial program transfer fund in the fiscal year beginning April

 17  first, two thousand one, and for each fiscal year thereafter.  The owner

 18  must submit with  each  application  for  registration  or  registration

 19  renewal, a five-year fee as follows:

 20  Combined Storage Capacity at Facility             5- Year Fee

 21  Greater than 1,000 to 2,000 gallons               $100 per facility

 22  Greater than 2,000 gallons to                     $300 per facility

 23  Less than 5,000 gallons

 24  5,000 gallons to less than 400,000 gallons        $500 per facility

 25    §  40.  Subdivision 3 of section 362 of chapter 83 of the laws of 1995

 26  amending the state finance law and other laws relating to  bonds,  notes

 27  and  revenues,  as  amended by section 2 of part E of chapter 413 of the

 28  laws of 1999, is amended to read as follows:

                                        123                        12021-01-1

  1    3. Sections fifteen through seventeen of this act  shall  take  effect

  2  immediately and shall be deemed to have been in full force and effect on

  3  and  after April 1, 1995 , and shall expire and be deemed repealed April

  4  1, 2004 ;

  5    §  41. Paragraph b of subdivision 1 of section 71-2725 of the environ-

  6  mental conservation law, as amended by chapter 60 of the laws  of  1993,

  7  is amended to read as follows:

  8    b.  All  penalties  and  fines collected pursuant to sections 71-2705,

  9  71-2721 and 71-2723 of this title shall be paid  into the  general  fund

 10  to  the credit of the state purposes account  to the credit of the reme-

 11  dial program transfer fund established by  section  ninety-seven-xxx  of

 12  the state finance law.

 13    §  42.  Paragraph b of subdivision 1, subdivision 9 and paragraph a of

 14  subdivision 11 of section 72-0201 of the environmental conservation law,

 15  paragraph b of subdivision 1 and subdivision 9 as added by chapter 38 of

 16  the laws of 1985 and paragraph a of subdivision 11 as amended by section

 17  24 of part A of chapter 58 of the laws of 1998, are amended and subdivi-

 18  sion 1 is amended by adding a new paragraph e to read as follows:

 19    b. Notwithstanding any general or special law to  the  contrary,  one-

 20  half  of  all  monies  collected  by  the department pursuant to section

 21  72-0402 and section 72-0502 of this article shall be  deposited  in  the

 22   hazardous  waste   remedial  program transfer fund, created pursuant to

 23  section  ninety-seven-b  ninety-seven-xxx of the state finance law.

 24    e.  Notwithstanding any general or special law to  the  contrary,  all

 25  monies  collected  by the department pursuant to section 72-0403 of this

 26  article shall be deposited in the remedial program transfer fund  estab-

 27  lished pursuant to section ninety-seven-xxx of the state finance law.

                                        124                        12021-01-1

  1    9.  a.  In  the  event  a penalty or interest is collected pursuant to

  2  subdivision five or six of this  section  for  fees  due  under  section

  3  72-0402,  or section 72-0502 of this article, one-half of the penalty or

  4  interest shall be deposited by the department in the   hazardous  waste 

  5  remedial program transfer fund.

  6    b.  In the event a penalty or interest is collected pursuant to subdi-

  7  vision five or six of this section for fees due under section 72-0403 of

  8  this article, such penalty or interest shall be deposited in the remedi-

  9  al program transfer fund.

 10    a. All fees collected pursuant to this article  except fees  collected

 11  pursuant  to  paragraphs  b, c and d of subdivision one of this section 

 12  shall be paid into the environmental conservation special  revenue  fund

 13  to  the  credit  of  the environmental regulatory account, unless herein

 14  provided otherwise.

 15    § 43. Section 72-0202 of the environmental conservation law is amended

 16  by adding a new subdivision 4 to read as follows:

 17    4. Bills issued for the hazardous  waste  generator  remedial  program

 18  surcharge due for the state fiscal year beginning April first, two thou-

 19  sand  one  shall  cover the period April first, two thousand one through

 20  December thirty-first, two thousand one. The surcharge  for  the  period

 21  April  first,  two thousand one through December thirty-first, two thou-

 22  sand one shall be equal to three-quarters of the  amount  calculated  in

 23  the  manner  prescribed  by  section  72-0403 of this article. Hazardous

 24  waste generator remedial program surcharges for periods beginning  after

 25  December  thirty-first,  two thousand one shall be calculated based upon

 26  the calendar year.

 27    § 44. The environmental conservation law is amended by  adding  a  new

 28  section 72-0403 to read as follows:

                                        125                        12021-01-1

  1  § 72-0403. Remedial program surcharges.

  2    1. All generators shall submit annually to the department a fee in the

  3  amount to be determined as follows:

  4    a.  Four  thousand  dollars for generators of equal to or greater than

  5  fifteen tons per year and less than or equal  to  twenty-five  tons  per

  6  year of hazardous waste;

  7    b.  Nine  thousand  dollars for generators of greater than twenty-five

  8  tons per year and less than or equal to fifty tons per year of hazardous

  9  waste;

 10    c. Fourteen thousand dollars for generators of greater than fifty tons

 11  per year and less than or equal to seventy-five tons per year of hazard-

 12  ous waste;

 13    d. Nineteen thousand dollars for generators of greater  than  seventy-

 14  five  tons  per year and less than or equal to one hundred tons per year

 15  of hazardous waste;

 16    e. Twenty-four thousand dollars for generators  of  greater  than  one

 17  hundred  tons  per  year and less than or equal to five hundred tons per

 18  year of hazardous waste;

 19    f. Eighty thousand dollars for generators of greater than five hundred

 20  tons per year and less than or equal to one thousand tons  per  year  of

 21  hazardous waste;

 22    g.  Eighty-five  thousand  dollars  for generators of greater than one

 23  thousand tons per year and less than or equal to two thousand  tons  per

 24  year of hazardous waste;

 25    h. One hundred ten thousand dollars for generators of greater than two

 26  thousand tons per year and less than or equal to three thousand tons per

 27  year of hazardous waste;

                                        126                        12021-01-1

  1    i.  One hundred thirty-five thousand dollars for generators of greater

  2  than three thousand tons per year and less than or equal to  five  thou-

  3  sand tons per year of hazardous waste;

  4    j.  One  hundred sixty thousand dollars for generators of greater than

  5  five thousand tons per year and less than or equal to ten thousand  tons

  6  per year of hazardous waste;

  7    k. Three hundred sixty thousand dollars for generators of greater than

  8  ten thousand tons per year of hazardous waste;

  9    l.  Six  thousand  dollars  for generators of equal to or greater than

 10  fifteen tons per year of hazardous wastewater, payable  in  addition  to

 11  the  fees  for  hazardous  wastes, other than wastewater, as required by

 12  this subdivision.

 13    2. No fee shall be payable for waste resulting from services which are

 14  provided:

 15    a. under a contract with the  department,  or  with  the  department's

 16  approval  and  in compliance with department regulations, or pursuant to

 17  an order of the department, the United States  environmental  protection

 18  agency  or a court, related to the cleanup or remediation of a hazardous

 19  materials or hazardous waste spill,  discharge,  or  surficial  cleanup,

 20  pursuant  to this chapter, other than section 27-1313 of this chapter or

 21  a removal action pursuant to the Comprehensive  Environmental  Response,

 22  Compensation and Liability Act (42 U.S.C.  9601 et seq.); or

 23    b.  under  a  contract  for,  or with the department's approval and in

 24  compliance with department regulations for, the cleanup and removal of a

 25  petroleum spill or discharge, pursuant to subdivision seven  of  section

 26  one hundred seventy-six of the navigation law; or

 27    c.  under  the  order  of a court, the department or the department of

 28  health, or the United States environmental protection agency related  to

                                        127                        12021-01-1

  1  an inactive hazardous waste disposal site pursuant to section 27-1313 of

  2  this  chapter,  section  thirteen  hundred  eighty-nine-b  of the public

  3  health law, or the Comprehensive  Environmental  Response,  Compensation

  4  and Liability Act (42 U.S.C. 9601 et seq.); or

  5    d.  voluntarily  and  without  expectation of monetary compensation in

  6  accordance with subdivision one of section 27-1321 of this chapter; or

  7    e. under permit or order requiring corrective action pursuant to title

  8  nine of article twenty-seven of this chapter or the  Resource  Conserva-

  9  tion and Recovery Act (42 U.S.C. 6901 et seq.).

 10    §  45. Paragraph b of subdivision 4 of section 27-0923 of the environ-

 11  mental conservation law, as added by chapter 38 of the laws of 1985,  is

 12  amended to read as follows:

 13    b.  All moneys collected or received by the department of taxation and

 14  finance pursuant to this section shall be deposited daily to the  credit

 15  of  the comptroller with such responsible banks, banking houses or trust

 16  companies as may be designated by the comptroller. Such  deposits  shall

 17  be  kept  separate  and apart from all other moneys in the possession of

 18  the comptroller. The comptroller shall require  adequate  security  from

 19  all such depositories. Of the revenues collected under this section, the

 20  comptroller  shall  retain in his hands such amounts as the commissioner

 21  of taxation and finance may determine to be necessary for refunds  under

 22  this  section  and  the comptroller shall pay any refunds to which those

 23  liable for special assessments shall be entitled under the provisions of

 24  this section. The comptroller, after reserving the amount  to  pay  such

 25  refunds,  shall,  on  or  before  the  tenth  day of each month, pay all

 26  special assessments, interest and penalties collected under this section

 27  and remaining to his credit in  such  banks,  banking  houses  or  trust

 28  companies  at  the  close  of  business on the last day of the preceding

                                        128                        12021-01-1

  1  month into the  hazardous waste  remedial program transfer fund  created

  2  pursuant  to  section   ninety-seven-b   ninety-seven-xxx  of  the state

  3  finance law. Within thirty days after each quarterly reporting date, the

  4  comptroller  shall  certify the amount of special assessments under this

  5  section deposited in the  hazardous  waste   remedial  program  transfer

  6  fund  during  the  preceding quarter and the cumulative amount collected

  7  since the start of the current calendar  year,  and  shall  submit  such

  8  certification  to  the  governor  and the chairman of the senate finance

  9  committee and the chairman of the assembly ways and means committee.

 10    § 46. The tax law is amended by adding a new section  21  to  read  as

 11  follows:

 12    §  21.  Brownfield  redevelopment tax credit. (a) Allowance of credit.

 13  (1) General. A taxpayer subject to tax under article nine, nine-A, twen-

 14  ty-two, thirty-two or thirty-three of this chapter shall  be  allowed  a

 15  credit against such tax, pursuant to the provisions referenced in subdi-

 16  vision  (e)  of this section.  Such credit shall be allowed with respect

 17  to a qualified site, as such term is defined in paragraph one of  subdi-

 18  vision (b) of this section. The amount of the credit shall be the sum of

 19  the  credit  components  specified  in  paragraphs two and three of this

 20  subdivision.

 21    (2) Site preparation credit component.  The  site  preparation  credit

 22  component shall be equal to the applicable percentage of the site prepa-

 23  ration  costs  paid or incurred by the taxpayer with respect to a quali-

 24  fied site. The credit component amount so determined with respect  to  a

 25  site's  qualification for a remediation certificate shall be allowed for

 26  the taxable year in which the effective date of the remediation  certif-

 27  icate  occurs.    The credit component amount determined other than with

 28  respect to such qualification shall be allowed for the taxable  year  in

                                        129                        12021-01-1

  1  which  the  improvement to which the applicable costs apply is placed in

  2  service.

  3    (3)  Tangible  property credit component. The tangible property credit

  4  component shall be equal to the applicable percentage  of  the  cost  or

  5  other basis for federal income tax purposes of tangible personal proper-

  6  ty  and  other  tangible  property,  including  buildings and structural

  7  components of buildings, which constitute qualified  tangible  property.

  8  The credit component amount so determined shall be allowed for the taxa-

  9  ble  year in which such qualified tangible property is placed in service

 10  on a qualified site with respect to which a remediation certificate  has

 11  been  issued  to  the  taxpayer.  The tangible property credit component

 12  shall be allowed with respect to property leased to a second party  only

 13  if  such  second  party  is  either  (i) not a party responsible for the

 14  disposal of hazardous waste or the discharge of petroleum  at  the  site

 15  according to applicable principles of statutory or common law liability,

 16  or (ii) a party responsible according to applicable principles of statu-

 17  tory  or  common  law  liability if such party's liability arises solely

 18  from operation of the site subsequent to the disposal of hazardous waste

 19  or the discharge of petroleum, and is so certified by  the  commissioner

 20  of  environmental  conservation at the request of the taxpayer, pursuant

 21  to section 27-1413 of the environmental conservation law.  Notwithstand-

 22  ing any other provision of law to the contrary, in the case of allowance

 23  of credit under this section to such a lessor,  the  commissioner  shall

 24  have  the  authority  to  reveal  to  such  lessor any information, with

 25  respect to the issue of qualified use of property by the  lessee,  which

 26  is  the  basis for the denial in whole or in part, or for the recapture,

 27  of the credit claimed by such lessor.

                                        130                        12021-01-1

  1    (4) Applicable percentage.  For purposes of paragraphs two  and  three

  2  of  this  subdivision, the applicable percentage shall be ten percent in

  3  the case of credits claimed under article nine,  nine-A,  thirty-two  or

  4  thirty-three,  and  eight  percent  in the case of credits claimed under

  5  article  twenty-two  of  this chapter. Provided, however, as provided in

  6  section 27-1413 of the environmental conservation law,  if  the  remedi-

  7  ation certificate indicates that the soil on the qualified site has been

  8  remediated  to  soil category 1 as that term is described in paragraph a

  9  of subdivision three of section 27-1316 of the  environmental  conserva-

 10  tion  law, the applicable percentage shall be twelve percent in the case

 11  of credits claimed under article nine,  nine-A,  thirty-two  or  thirty-

 12  three,  and  ten  percent  in  the case of credits claimed under article

 13  twenty-two of this chapter.

 14    (b) Definitions. As used in this section, the  following  terms  shall

 15  have the following meanings:

 16    (1) Qualified site. A "qualified site" is a site with respect to which

 17  a remediation certificate has been issued to the taxpayer by the commis-

 18  sioner  of environmental conservation pursuant to section 27-1413 of the

 19  environmental conservation law.

 20    (2) Site preparation costs. The term "site  preparation  costs"  shall

 21  mean all amounts properly chargeable to capital account, under generally

 22  accepted  accounting  principles,  (i)  which  are  paid  or incurred in

 23  connection with a site's qualification for  a  remediation  certificate,

 24  and (ii) all other site preparation costs paid or incurred in connection

 25  with preparing a site for the erection of a building or a component of a

 26  building, or otherwise to establish a site as usable for its industrial,

 27  commercial  (including  the  commercial development of residential hous-

 28  ing), recreational or conservation purposes.    Site  preparation  costs

                                        131                        12021-01-1

  1  shall include, but not be limited to, the costs of excavation, temporary

  2  electric wiring, scaffolding, demolition costs, and the costs of fencing

  3  and  security  facilities.  Site preparation costs shall not include the

  4  cost of acquiring the site and shall not include amounts included in the

  5  cost  or other basis for federal income tax purposes of qualified tangi-

  6  ble property, as described in paragraph three of this subdivision.

  7    (3) Qualified tangible  property.  "Qualified  tangible  property"  is

  8  property which:

  9    (A)  is depreciable pursuant to section one hundred sixty-seven of the

 10  internal revenue code,

 11    (B) has a useful life of four years or more,

 12    (C) has been acquired by purchase as defined in  section  one  hundred

 13  seventy-nine (d) of the internal revenue code,

 14    (D) has a situs on a qualified site in this state,

 15    (E)  is  principally  used by the taxpayer for industrial, commercial,

 16  recreational  or  environmental  conservation  purposes  (including  the

 17  commercial development of residential housing), and

 18    (F)  is placed in service within three years following the issuance of

 19  a remediation certificate with respect to such qualified site.

 20    (4) Remediation certificate. The term "remediation certificate"  shall

 21  refer  to  the certificate so denominated which is issued by the commis-

 22  sioner of environmental conservation pursuant to section 27-1413 of  the

 23  environmental conservation law.

 24    (5)  Corporate  new business. A "corporate new business" shall include

 25  any corporation, except a corporation:

 26    (A) over fifty percent of the number of shares of stock of which enti-

 27  tling the holders thereof to vote for the election of directors or trus-

 28  tees is owned or controlled, either directly or indirectly, by a taxpay-

                                        132                        12021-01-1

  1  er  subject  to  tax  under  article   nine-A;   section   one   hundred

  2  eighty-three,  one  hundred  eighty-four  or  one hundred eighty-five of

  3  article nine; article thirty-two or thirty-three of this chapter; or

  4    (B)  which is substantially similar in operation and in ownership to a

  5  business entity (or entities)  taxable,  or  previously  taxable,  under

  6  article  nine-A;  section  one hundred eighty-three, one hundred eighty-

  7  four, one hundred eighty-five or one hundred eighty-six of article nine;

  8  article thirty-two or thirty-three of this chapter; article twenty-three

  9  of this chapter or which would have been subject to tax under such arti-

 10  cle twenty-three (as such article was in effect on January first,  nine-

 11  teen  hundred  eighty)  or  the  income (or losses) of which is (or was)

 12  includable under article twenty-two of this chapter whereby  the  intent

 13  and purpose of this paragraph and the applicable provision of this chap-

 14  ter relating to refunding of credit to new business would be evaded; or

 15    (C)  which  has  been subject to tax under the article or section with

 16  respect to which the credit provided for under this section  is  claimed

 17  for  more  than four taxable years (excluding short taxable years) prior

 18  to the taxable year during which the taxpayer first becomes eligible for

 19  such credit.

 20    (c) Property which qualifies for the credit provided  for  under  this

 21  section  and also for a credit provided for (1) under either subdivision

 22  twelve or subdivision twelve-B of section two hundred ten of this  chap-

 23  ter,  or  both,  (2)  subsection  (a)  or  subsection (j) of section six

 24  hundred six of this chapter, or both, (3) the credit provided for  under

 25  subsection (i) of section fourteen hundred fifty-six of this chapter, or

 26  (4) the credit provided under subdivision (q) of section fifteen hundred

 27  eleven  of  this chapter may be the basis for either the credit provided

                                        133                        12021-01-1

  1  for under this section or one of the  credits  enumerated  in  paragraph

  2  one, two or three of this subdivision, but not both.

  3    (d)(1)  With respect to qualified tangible property which is deprecia-

  4  ble pursuant to section one hundred sixty-seven of the internal  revenue

  5  code  but is not subject to the provisions of section one hundred sixty-

  6  eight of such code and which is disposed of or ceases to be in qualified

  7  use prior to the end of the taxable year in which the credit  is  to  be

  8  taken,  the  amount  of  the  credit shall be that portion of the credit

  9  provided for in this subdivision which represents the  ratio  which  the

 10  months  of  qualified use bear to the months of useful life. If property

 11  on which credit has been taken is disposed of or ceases to be in  quali-

 12  fied use prior to the end of its useful life, the difference between the

 13  credit taken and the credit allowed for actual use must be added back in

 14  the year of disposition. Provided, however, if such property is disposed

 15  of  or  ceases to be in qualified use after it has been in qualified use

 16  for more than twelve consecutive years, it shall not be necessary to add

 17  back the credit as provided in this  paragraph.  The  amount  of  credit

 18  allowed  for  actual use shall be determined by multiplying the original

 19  credit by the ratio which the months of qualified use bear to the months

 20  of useful life. For purposes of this paragraph, useful life of  property

 21  shall  be  the  same as the taxpayer uses for depreciation purposes when

 22  computing his federal income tax liability.

 23    (2) Except with respect to that property to which  paragraph  four  of

 24  this  subdivision  applies,  with respect to qualified tangible property

 25  which is three-year property, as defined in subsection  (e)  of  section

 26  one  hundred sixty-eight of the internal revenue code, 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

                                        134                        12021-01-1

  1  that portion of the credit provided for in this section which represents

  2  the ratio which the months of qualified use bear to thirty-six. If prop-

  3  erty  on  which  credit has been taken is disposed of or ceases to be in

  4  qualified  use  prior  to  the  end of thirty-six months, the difference

  5  between the credit taken and the credit allowed for actual use  must  be

  6  added  back in the year of disposition. The amount of credit allowed for

  7  actual use shall be determined by multiplying the original credit by the

  8  ratio which the months of qualified use bear to thirty-six.

  9    (3) Except with respect to that property to which  paragraph  four  of

 10  this  subdivision  applies,  with respect to qualified tangible property

 11  which is subject to the provisions of section one hundred sixty-eight of

 12  the internal revenue code other than three-year property as  defined  in

 13  subsection (e) of such section one hundred sixty-eight which is disposed

 14  of or ceases to be in qualified use prior to the end of the taxable year

 15  in  which  the  credit is to be taken, the amount of the credit shall be

 16  that portion of the credit provided for in this section which represents

 17  the ratio which the months of qualified use bear to sixty.  If  property

 18  on  which credit has been taken is disposed of or ceases to be in quali-

 19  fied use prior to the end of sixty months, the  difference  between  the

 20  credit taken and the credit allowed for actual use must be added back in

 21  the  year  of  disposition.  The amount of credit allowed for actual use

 22  shall be determined by multiplying the  original  credit  by  the  ratio

 23  which the months of qualified use bear to sixty.

 24    (4)  With  respect to any qualified tangible property to which section

 25  one hundred sixty-eight of the internal revenue code applies, which is a

 26  building or a structural component of a building and 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

                                        135                        12021-01-1

  1  that portion of the credit provided for in this section which represents

  2  the ratio which the months of qualified use bear to the total number  of

  3  months  over which the taxpayer chooses to deduct the property under the

  4  internal  revenue  code.  If  property on which credit has been taken is

  5  disposed of or ceases to be in qualified use prior to  the  end  of  the

  6  period  over which the taxpayer chooses to deduct the property under the

  7  internal revenue code, the difference between the credit taken  and  the

  8  credit allowed for actual use must be added back in the year of disposi-

  9  tion. Provided, however, if such property is disposed of or ceases to be

 10  in qualified use after it has been in qualified use for more than twelve

 11  consecutive  years,  it shall not be necessary to add back the credit as

 12  provided in this paragraph. The amount of credit allowed for actual  use

 13  shall  be  determined  by  multiplying  the original credit by the ratio

 14  which the months of qualified use bear to the  total  number  of  months

 15  over  which the taxpayer chooses to deduct the property under the inter-

 16  nal revenue code.

 17    (e) Cross-references. For application of the credit  provided  for  in

 18  this section, see the following provisions of this chapter:

 19    (1) Article 9: Section 187-f

 20    (2) Article 9-A: Section 210, subdivision 33

 21    (3) Article 22: Section 606, subsections (i) and (ff)

 22    (4) Article 32: Section 1456, subsection (q)

 23    (5) Article 33: Section 1511, subdivision (u).

 24    §  47. The tax law is amended by adding a new section 187-f to read as

 25  follows:

 26    § 187-f. Brownfield redevelopment tax credit. 1. Allowance of  credit.

 27  A  taxpayer  shall  be  allowed  a credit, to be computed as provided in

 28  section twenty-one  of  this  chapter,  against  the  taxes  imposed  by

                                        136                        12021-01-1

  1  sections  one  hundred  eighty-three,  one  hundred  eighty-four and one

  2  hundred eighty-five of this article. Provided, however, that the  amount

  3  of  such credit allowable against the tax imposed by section one hundred

  4  eighty-four  of  this  article shall be the excess of the amount of such

  5  credit over the amount of any credit allowed by this section against the

  6  tax imposed by section one hundred eighty-three of this article.

  7    2. Carryovers. In no event shall the  credit  under  this  section  be

  8  allowed  in an amount which will reduce the tax payable to less than the

  9  applicable minimum tax fixed by section one hundred eighty-three or  one

 10  hundred  eighty-five  of this article. If, however, the amount of credit

 11  allowable under this section for any taxable year  reduces  the  tax  to

 12  such  amount,  any  amount of credit not deductible in such taxable year

 13  may be carried over to the following year or years and may  be  deducted

 14  from  the  taxpayer's tax for such year or years. In lieu of such carry-

 15  over, any such taxpayer which qualifies  as  a  corporate  new  business

 16  under  paragraph  five  of subdivision (b) of section twenty-one of this

 17  chapter may elect, on its report for its taxable year  with  respect  to

 18  which  such  credit  is allowed, to treat fifty percent of the amount of

 19  such carryover as an overpayment of tax to be credited  or  refunded  in

 20  accordance with the provisions of section ten hundred eighty-six of this

 21  chapter.  Provided, however, the provisions of subsection (c) of section

 22  ten hundred eighty-eight of this chapter  notwithstanding,  no  interest

 23  shall be paid thereon.

 24    §  48.  Section 210 of the tax law is amended by adding a new subdivi-

 25  sion 33 to read as follows:

 26    33. Brownfield redevelopment tax credit. (a) Allowance  of  credit.  A

 27  taxpayer  shall  be  allowed  a  credit,  to  be computed as provided in

                                        137                        12021-01-1

  1  section twenty-one of this chapter, against  the  tax  imposed  by  this

  2  article.

  3    (b) Carryovers. The credit and carryovers of such credit allowed under

  4  this  subdivision  for  any  taxable  year  shall not, in the aggregate,

  5  reduce the tax due for such year to less than the higher of the  amounts

  6  prescribed in paragraphs (c) and (d) of subdivision one of this section.

  7  However,  if the amount of credit or carryovers of such credit, or both,

  8  allowed under this subdivision for any taxable year reduces the  tax  to

  9  such  amount, any amount of credit or carryovers of such credit thus not

 10  deductible in such taxable year may be carried  over  to  the  following

 11  year  or  years and may be deducted from the tax for such year or years.

 12  In lieu of such carryover, any such taxpayer which qualifies as a corpo-

 13  rate new business under paragraph five of  subdivision  (b)  of  section

 14  twenty-one of this chapter may elect, on its report for its taxable year

 15  with  respect to which such credit is allowed, to treat fifty percent of

 16  the amount of such carryover as an overpayment of tax to be credited  or

 17  refunded in accordance with the provisions of section ten hundred eight-

 18  y-six  of  this chapter. Provided, however, the provisions of subsection

 19  (c) of section ten hundred eighty-eight of this chapter notwithstanding,

 20  no interest shall be paid thereon.

 21    § 49. Paragraph 1 of subsection (i) of section 606 of the tax law,  as

 22  separately amended by section 4 of part I, section 47 of part Y, section

 23  4  of  part  CC,  sections 4 and 15 of part GG, section 5 of part II and

 24  section 3 of part E of chapter 63 of the laws of  2000,  is  amended  to

 25  read as follows:

 26    (1)  For purposes of determining the application under this section of

 27  the credit provisions enumerated in the following table,  a  shareholder

 28  of a New York S corporation:

                                        138                        12021-01-1

  1    (A)  shall  be  treated as the taxpayer with respect to his or her pro

  2  rata share of the corresponding credit base of such corporation,  deter-

  3  mined  for  the  corporation's  taxable  year  ending with or within the

  4  shareholder's taxable year and

  5    (B)  shall  be  treated as the owner of a new business with respect to

  6  such share if the corporation qualifies as a new  business  pursuant  to

  7  paragraph  (j)  of subdivision twelve of section two hundred ten of this

  8  chapter, unless the shareholder has  previously  received  a  refund  by

  9  reason of the application of this subparagraph, or this subsection as it

 10  was  in effect for taxable years beginning before nineteen hundred nine-

 11  ty-four.

 12                                          The corporation's

 13  With respect to the                     credit base under

 14  following credit                        section two hundred ten

 15  under this section:                     or section fourteen

 16                                          hundred fifty-six of this

 17                                          chapter is:

 18  Investment tax credit                   Investment credit base

 19  under subsection (a)                    or qualified

 20                                          rehabilitation

 21                                          expenditures under

 22                                          subdivision twelve of

 23                                          section two hundred ten

 24  Empire zone                             Cost or other basis

 25  investment tax credit                   under subdivision

                                        139                        12021-01-1

  1  under subsection (j)                    twelve-B

  2                                          of section two hundred

  3                                          ten

  4  Empire zone                             Eligible wages under

  5  wage tax credit                         subdivision nineteen of

  6  under subsection (k)                    section two hundred ten

  7                                          or subsection (e) of

  8                                          section fourteen hundred

  9                                          fifty-six

 10  Empire zone                             Qualified investments

 11  capital tax credit                      and contributions under

 12  under subsection (1)                    subdivision twenty of

 13                                          section two hundred ten

 14                                          or subsection (d) of

 15                                          section fourteen hundred

 16                                          fifty-six

 17  Agricultural property tax               Allowable school

 18  credit under subsection (n)             district property taxes under

 19                                          subdivision twenty-two of

 20                                          section two hundred ten

 21  Credit for employment                   Qualified first-year wages or

 22  of persons with dis-                    qualified second-year wages

 23  abilities under                         under subdivision

 24  subsection (o)                          twenty-three of section

                                        140                        12021-01-1

  1                                          two hundred ten

  2                                          or subsection (f)

  3                                          of section fourteen

  4                                          hundred fifty-six

  5  Employment incentive                    Applicable investment credit

  6  credit under subsec-                    base under subdivision

  7  tion (a-1)                              twelve-D of section two

  8                                          hundred ten

  9  Empire zone                             Applicable investment

 10  employment                              credit under sub-

 11  incentive credit under                  division twelve-C

 12  subsection (j-1)

 13  Alternative fuels credit                Cost under subdivision

 14  under subsection (p)                    twenty-four of section two

 15                                          hundred ten

 16  Qualified emerging                      Applicable credit base

 17  technology company                      under subdivision twelve-E

 18  employment credit                       of section two hundred ten

 19  under subsection (q)

 20  Qualified emerging                      Qualified investments under

 21  technology company                      subdivision twelve-F of

 22  capital tax credit                      section two hundred ten

 23  under subsection (r)

                                        141                        12021-01-1

  1  Credit for purchase of an               Cost of an automated

  2  automated external defibrillator        external defibrillator under

  3  under subsection (s)                    subdivision twenty-five of

  4                                          section two hundred ten

  5                                          or subsection (j) of section

  6                                          fourteen hundred fifty-six

  7  Low-income housing                      Credit amount under

  8  credit under subsection (x)             subdivision thirty

  9                                          of section two hundred ten or

 10                                          subsection (1) of section

 11                                          fourteen hundred fifty-six

 12  Credit for transportation               Amount of credit under sub-

 13  improvement contributions               division thirty-two of section

 14  under subsection (z)                    two hundred ten or subsection

 15                                          (n) of section fourteen

 16                                          hundred fifty-six

 17  IMB credit for energy                   Amount of credit

 18  taxes under sub-                        under subdivision

 19  section (t-1)                           twenty-six-a of

 20                                          section two hundred ten

 21  QEZE credit for real property           Amount of credit under

 22  taxes under subsection (bb)             subdivision twenty-seven of

 23                                          section two hundred ten or

 24                                          subsection (o) of section

                                        142                        12021-01-1

  1                                          fourteen hundred fifty-six

  2  QEZE tax reduction credit               Amount of credit under

  3  under subsection (cc)                   subdivision twenty-eight of

  4                                          section two hundred ten or

  5                                          subsection (p) of section

  6                                          fourteen hundred fifty-six

  7  Green building credit                   Amount of green building credit

  8  under subsection (y)                    under subdivision thirty-one

  9                                          of section two hundred ten

 10                                          or subsection (m) of section

 11                                          fourteen hundred fifty-six

 12  Credit for long-term                    Qualified costs under

 13  care insurance premiums                 subdivision twenty-five-a of

 14  under subsection (aa)                   section two hundred ten

 15                                          or subsection (k) of section

 16                                          fourteen hundred fifty-six

 17  Brownfield redevelopment                Applicable cost

 18  credit under subsection                 or other basis

 19  (ff)                                    under subdivision

 20                                          thirty-three of section

 21                                          two hundred ten

 22                                          or subsection (q) of

 23                                          section fourteen hundred

 24                                          fifty-six

                                        143                        12021-01-1

  1    §  50. Paragraph 1 of subsection (i) of section 606 of the tax law, as

  2  separately amended by section 4  of  part  I,  section  4  of  part  CC,

  3  sections 4 and 15 of part GG, section 5 of part II and section 3 of part

  4  E of chapter 63 of the laws of 2000, is amended to read as follows:

  5    (1)  For purposes of determining the application under this section of

  6  the credit provisions enumerated in the following table,  a  shareholder

  7  of a New York S corporation:

  8    (A)  shall  be  treated as the taxpayer with respect to his or her pro

  9  rata share of the corresponding credit base of such corporation,  deter-

 10  mined  for  the  corporation's  taxable  year  ending with or within the

 11  shareholder's taxable year and

 12    (B) shall be treated as the owner of a new business  with  respect  to

 13  such  share  if  the corporation qualifies as a new business pursuant to

 14  paragraph (j) of subdivision twelve of section two hundred ten  of  this

 15  chapter,  unless  the  shareholder  has  previously received a refund by

 16  reason of the application of this subparagraph, or this subsection as it

 17  was in effect for taxable years beginning before nineteen hundred  nine-

 18  ty-four.

 19                                          The corporation's

 20  With respect to the                     credit base under

 21  following credit                        section two hundred ten

 22  under this section:                     or section fourteen

 23                                          hundred fifty-six of this

 24                                          chapter is:

 25  Investment tax credit                   Investment credit base

 26  under subsection (a)                    or qualified

                                        144                        12021-01-1

  1                                          rehabilitation

  2                                          expenditures under

  3                                          subdivision twelve of

  4                                          section two hundred ten

  5  Empire zone                             Cost or other basis

  6  investment tax credit                   under subdivision

  7  under subsection (j)                    twelve-B

  8                                          of section two hundred

  9                                          ten

 10  Empire zone                             Eligible wages under

 11  wage tax credit                         subdivision nineteen of

 12  under subsection (k)                    section two hundred ten

 13                                          or subsection (e) of

 14                                          section fourteen hundred

 15                                          fifty-six

 16  Empire zone                             Qualified investments

 17  capital tax credit                      and contributions under

 18  under subsection (1)                    subdivision twenty of

 19                                          section two hundred ten

 20                                          or subsection (d) of

 21                                          section fourteen hundred

 22                                          fifty-six

 23  Agricultural property tax               Allowable school

 24  credit under subsection (n)             district property taxes under

                                        145                        12021-01-1

  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  Empire zone                             Applicable investment

 15  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)

                                        146                        12021-01-1

  1  Qualified emerging                      Qualified investments under

  2  technology company                      subdivision twelve-F of

  3  capital tax credit                      section two hundred ten

  4  under subsection (r)

  5  Credit for purchase of an               Cost of an automated

  6  automated external defibrillator        external defibrillator under

  7  under subsection (s)                    subdivision twenty-five of

  8                                          section two hundred ten

  9                                          or subsection (j) of section

 10                                          fourteen hundred fifty-six

 11  Low-income housing                      Credit amount under

 12  credit under subsection (x)             subdivision thirty

 13                                          of section two hundred ten or

 14                                          subsection (1) of section

 15                                          fourteen hundred fifty-six

 16  Credit for transportation               Amount of credit under sub-

 17  improvement contributions               division thirty-two of section

 18  under subsection (z)                    two hundred ten or subsection

 19                                          (n) of section fourteen

 20                                          hundred fifty-six

 21  QEZE credit for real property           Amount of credit under

 22  taxes under subsection (bb)             subdivision twenty-seven of

 23                                          section two hundred ten or

 24                                          subsection (o) of section

                                        147                        12021-01-1

  1                                          fourteen hundred fifty-six

  2  QEZE tax reduction credit               Amount of credit under

  3  under subsection (cc)                   subdivision twenty-eight of

  4                                          section two hundred ten or

  5                                          subsection (p) of section

  6                                          fourteen hundred fifty-six

  7  Green building credit                   Amount of green building credit

  8  under subsection (y)                    under subdivision thirty-one

  9                                          of section two hundred ten

 10                                          or subsection (m) of section

 11                                          fourteen hundred fifty-six

 12  Credit for long-term                    Qualified costs under

 13  care insurance premiums                 subdivision twenty-five-a of

 14  under subsection (aa)                   section two hundred ten

 15                                          or subsection (k) of section

 16                                          fourteen hundred fifty-six

 17  Brownfield redevelopment                Applicable cost

 18  credit under subsection                 or other basis

 19  (ff)                                    under subdivision

 20                                          thirty-three of section

 21                                          two hundred ten

 22                                          or subsection (q) of

 23                                          section fourteen hundred

 24                                          fifty-six

                                        148                        12021-01-1

  1    §  51.    Section  606  of  the  tax  law  is  amended by adding a new

  2  subsection (ff) to read as follows:

  3    (ff)  Brownfield  redevelopment tax credit. (1) Allowance of credit. A

  4  taxpayer shall be allowed a  credit,  to  be  computed  as  provided  in

  5  section  twenty-one  of  this  chapter,  against the tax imposed by this

  6  article.

  7    (2) Carryovers. If the amount of the credit  and  carryovers  of  such

  8  credit  allowed  under this subsection for any taxable year shall exceed

  9  the taxpayer's tax for such year, the excess, as well as any part of the

 10  credit or carryovers of such credit, or both, may be carried over to the

 11  following year or years and may be deducted from the taxpayer's tax  for

 12  such year or years. In lieu of carrying over any such excess, a taxpayer

 13  who  qualifies  as  an owner of a new business for purposes of paragraph

 14  ten of subsection (a) of this section may, at his option, receive  fifty

 15  percent  of  such  excess  as a refund. Any refund paid pursuant to this

 16  paragraph shall be deemed to be a refund of an  overpayment  of  tax  as

 17  provided  in  section  six hundred eighty-six of this article, provided,

 18  however, that no interest shall be paid thereon. For  purposes  of  this

 19  section,  in  reading  such  paragraph  ten,  references  therein to the

 20  investment tax credit provided for under subsection (a) of this  section

 21  shall  be  deemed  to  refer  to  the  credit  provided  for  under this

 22  subsection, and shall be read accordingly.

 23    § 52. Subsection (c) of section 683 of  the  tax  law  is  amended  by

 24  adding a new paragraph 10 to read as follows:

 25    (10)  Reports  concerning  a  remediation certificate. If a taxpayer's

 26  remediation certificate issued pursuant to section 27-1413 of the  envi-

 27  ronmental  conservation  law  is  modified or revoked by a determination

 28  issued pursuant to subdivision six of section 27-1413  of  the  environ-

                                        149                        12021-01-1

  1  mental  conservation  law, any tax liability generated by reason of such

  2  modification or revocation may be assessed within one  year  after  such

  3  determination  is  final and is no longer subject to judicial review and

  4  the  taxpayer  shall be allowed to offset against such tax liability the

  5  amount of any of the credits provided for under subsection (a) or (j) of

  6  section six hundred six of this article which the  taxpayer  would  have

  7  been allowed with respect to amounts which were the basis for the credit

  8  provided  for under such section twenty-one which is the subject of such

  9  assessment.

 10    § 53. Subsection (a) of section 687 of the  tax  law,  as  amended  by

 11  chapter 309 of the laws of 1996, is amended to read as follows:

 12    (a)  General.--Claim  for credit or refund of an overpayment of income

 13  tax shall be filed by the taxpayer within (i) three years from the  time

 14  the  return  was  filed   or ,  (ii) two years from the time the tax was

 15  paid, or (iii) in the case of any overpayment arising from an  erroneous

 16  denial  by the department of environmental conservation of a remediation

 17  certificate pursuant to section 27-1413 of the  environmental  conserva-

 18  tion  law,  two  years from the time a final determination to the effect

 19  that such denial was erroneous is made and is no longer subject to judi-

 20  cial review, whichever of such periods expires the  later  latest, or if

 21  no return was filed, within two years from the time the tax was paid. If

 22  the claim is filed within the three year period, the amount of the cred-

 23  it or refund shall not exceed the portion of the  tax  paid  within  the

 24  three years immediately preceding the filing of the claim plus the peri-

 25  od  of  any extension of time for filing the return unless such claim is

 26  for a credit or a portion thereof provided pursuant to paragraph two  or

 27  four  of  subsection  (c),  paragraph  two  or four of subsection (d) or

 28  subsection (e) of section six hundred six of this chapter.  If the claim

                                        150                        12021-01-1

  1  is not filed within the three year period, but is filed within  the  two

  2  year  period,  the  amount  of the credit or refund shall not exceed the

  3  portion of the tax paid during the two years immediately  preceding  the

  4  filing of the claim unless such claim is for a credit or a portion ther-

  5  eof  provided pursuant to paragraph two or four of subsection (c), para-

  6  graph two or four of subsection (d) or subsection  (e)  of  section  six

  7  hundred  six  of  this  chapter.    In the case of a claim for credit or

  8  refund filed within the period prescribed in  paragraph  (iii)  of  this

  9  subsection, the amount of the credit or refund may exceed the portion of

 10  the  tax  paid  within  the applicable period specified in the two imme-

 11  diately preceding sentences, but only to the extent of the amount of the

 12  overpayment attributable to  the  denial  described  in  such  paragraph

 13  (iii).  Except  as  otherwise  provided  in this section, if no claim is

 14  filed, the amount of a credit or refund  shall  not  exceed  the  amount

 15  which would be allowable if a claim had been filed on the date the cred-

 16  it or refund is allowed.

 17    §  54.  Subsection  (c)  of  section 1083 of the tax law is amended by

 18  adding a new paragraph 10  to read as follows:

 19    (10) Reports concerning a remediation  certificate.  If  a  taxpayer's

 20  remediation  certificate issued pursuant to section 27-1413 of the envi-

 21  ronmental conservation law is modified or  revoked  by  a  determination

 22  issued  pursuant  to  subdivision six of section 27-1413 of the environ-

 23  mental conservation law, any tax liability generated by reason  of  such

 24  modification  or  revocation  may be assessed within one year after such

 25  determination is final and is no longer subject to judicial  review  and

 26  the  taxpayer  shall be allowed to offset against such tax liability the

 27  amount of any of the credits provided for under  subdivision  twelve  or

 28  twelve-B  of section two hundred ten, or subsection (i) of section four-

                                        151                        12021-01-1

  1  teen hundred fifty-six of this chapter or  subdivision  (q)  of  section

  2  fifteen  hundred  eleven  of  this chapter which the taxpayer would have

  3  been allowed with respect to amounts which were the basis for the credit

  4  provided  for under such section twenty-one which is the subject of such

  5  assessment.

  6    § 55. Subsection (a) of section 1087 of the tax  law,  as  amended  by

  7  chapter 55 of the laws of 1982, is amended  to read as follows:

  8    (a)  General.--Claim  for  credit  or  refund of an overpayment of tax

  9  under article nine , nine-a, nine-b or nine-c  or nine-A shall be  filed

 10  by  the  taxpayer  within  (i)  three years from the time the return was

 11  filed  or , (ii) two years from the time the tax was paid  or  (iii)  in

 12  the  case  of  any  overpayment  arising from an erroneous denial by the

 13  department of environmental conservation of  a  remediation  certificate

 14  pursuant  to  section 27-1413 of the environmental conservation law, two

 15  years from the time a final determination to the effect that such denial

 16  was erroneous is made and is  no  longer  subject  to  judicial  review,

 17  whichever  of  such  periods expires the  later  latest, or if no return

 18  was filed, within two years from the time the tax  was  paid.    If  the

 19  claim is filed within the three year period, the amount of the credit or

 20  refund  shall  not  exceed  the portion of the tax paid within the three

 21  years immediately preceding the filing of the claim plus the  period  of

 22  any  extension  of time for filing the return. If the claim is not filed

 23  within the three year period, but is filed within the two  year  period,

 24  the  amount  of the credit or refund shall not exceed the portion of the

 25  tax paid during the two years immediately preceding the  filing  of  the

 26  claim.    In  the  case of a claim for credit or refund filed within the

 27  period prescribed in paragraph (iii) of this subsection, the  amount  of

 28  the  credit  or refund may exceed the portion of the tax paid within the

                                        152                        12021-01-1

  1  applicable period specified in the two immediately preceding  sentences,

  2  but  only to the extent of the amount of the overpayment attributable to

  3  the denial described in such paragraph (iii) of this subsection.  Except

  4  as  otherwise provided in this section, if no claim is filed, the amount

  5  of a credit or refund shall not exceed the amount which would be  allow-

  6  able  if  a  claim  had  been  filed on the date the credit or refund is

  7  allowed. For special restriction in a proceeding on a claim  for  refund

  8  of  tax  paid  pursuant  to  an assessment made as a result of (i) a net

  9  operating loss carryback or capital loss carryback, or (ii) an  increase

 10  or decrease in federal taxable income or federal tax, or (iii) a federal

 11  change  or  correction or renegotiation, or computation or recomputation

 12  of tax, which is treated in the same manner as if it were  a  deficiency

 13  for  federal income tax purposes, see paragraph (7) of subsection (c) of

 14  section one thousand eighty-three.

 15    § 56. Section 1456  of  the  tax  law  is  amended  by  adding  a  new

 16  subsection (q) to read as follows:

 17    (q)  Brownfield  redevelopment  tax credit. (1) Allowance of credit. A

 18  taxpayer shall be allowed a  credit,  to  be  computed  as  provided  in

 19  section  twenty-one  of  this  chapter,  against the tax imposed by this

 20  article.

 21    (2) Carryover. The credit and carryovers of such credit allowed  under

 22  this subsection for any taxable year shall not, in the aggregate, reduce

 23  the  tax  due  for such year to less than the minimum tax fixed by para-

 24  graph three of subsection (b) of section fourteen hundred fifty-five  of

 25  this  article.  However,  if  the amount of credit or carryovers of such

 26  credit, or both, allowed under this  subsection  for  any  taxable  year

 27  reduces  the tax to such amount, then any amount of credit or carryovers

 28  of such credit thus not deductible in such taxable year may  be  carried

                                        153                        12021-01-1

  1  over to the following year or years and may be deducted from the taxpay-

  2  er's  tax  for  such  year or years. In lieu of such carryover, any such

  3  taxpayer which qualifies as a corporate new business under paragraph six

  4  of  subdivision  (b) of section twenty-one of this chapter may elect, on

  5  its report for its taxable year with respect to  which  such  credit  is

  6  allowed,  to  treat  fifty percent of the amount of such carryover as an

  7  overpayment of tax to be credited or refunded  in  accordance  with  the

  8  provisions  of section ten hundred eighty-six of this chapter. Provided,

  9  however, the provisions of subsection (c) of section ten hundred  eight-

 10  y-eight of this chapter notwithstanding, no interest shall be paid ther-

 11  eon.

 12    §  57. Section 1511 of the tax law is amended by adding a new subdivi-

 13  sion (u) to read as follows:

 14    (u) Brownfield redevelopment tax credit. (1) Allowance  of  credit.  A

 15  taxpayer  shall  be  allowed  a  credit,  to  be computed as provided in

 16  section twenty-one of this chapter, against the taxes  imposed  by  this

 17  article.

 18    (2)  Carryover. The credit and carryovers of such credit allowed under

 19  this subdivision for any taxable  year  shall  not,  in  the  aggregate,

 20  reduce the tax due for such year to less than the minimum fixed by para-

 21  graph  four  of  subdivision  (a) of section fifteen hundred two of this

 22  article. However, if the amount of credit or carryovers of such  credit,

 23  or both, allowed under this subdivision for any taxable year reduces the

 24  tax  to  such  amount,  then  any amount of credit or carryovers of such

 25  credit thus not deductible in such taxable year may be carried  over  to

 26  the  following year or years and may be deducted from the taxpayer's tax

 27  for such year or years. In lieu of such  carryover,  any  such  taxpayer

 28  which  qualifies  as  a  corporate  new  business under paragraph six of

                                        154                        12021-01-1

  1  subdivision (b) of section twenty-one of this chapter may elect, on  its

  2  report  for  its  taxable  year  with  respect  to  which such credit is

  3  allowed, to treat fifty percent of the amount of such  carryover  as  an

  4  overpayment  of  tax  to  be credited or refunded in accordance with the

  5  provisions of section ten hundred eighty-six of this chapter.  Provided,

  6  however,  the provisions of subsection (c) of section ten hundred eight-

  7  y-eight of this chapter notwithstanding, no interest shall be paid ther-

  8  eon.

  9    § 58. The tax law is amended by adding a new section  25  to  read  as

 10  follows:

 11    §  25.  Tax  credits  for remediated brownfields. (a) Definitions.  As

 12  used in this section the following terms shall have the following  mean-

 13  ings:

 14    (1)  Remediation certificate. A "remediation certificate" is a certif-

 15  icate issued by the commissioner of environmental conservation  pursuant

 16  to section 27-1413 of the environmental conservation law.

 17    (2)  Qualified  site. For purposes of this section, a "qualified site"

 18  is a site with respect to  which  a  remediation  certificate  has  been

 19  issued  and  which  is  located in its entirety outside the metropolitan

 20  commuter transportation district created  and  established  pursuant  to

 21  section twelve hundred sixty-two of the public authorities law.

 22    (3) Small qualified site. A "small qualified site" is a qualified site

 23  which,  on the effective date of the remediation certificate issued with

 24  respect to such site, consists of at least ten  but  no  more  than  one

 25  hundred  acres  and  is located at least partially within a city in this

 26  state.

                                        155                        12021-01-1

  1    (4) Large qualified site. A "large qualified site is a qualified  site

  2  which,  on the effective date of the remediation certificate issued with

  3  respect to such site, consists of more than one hundred acres.

  4    (5)  Developer.  (i)  A  "developer" is a taxpayer under article nine,

  5  nine-A, twenty-two, thirty-two or thirty-three of this  chapter  who  or

  6  which  either (I) has been issued a remediation certificate with respect

  7  to a qualified site or (II) has purchased all or any portion of a quali-

  8  fied site from a taxpayer who or which has  been  issued  a  remediation

  9  certificate  with  respect to such site provided, in the case of a small

 10  qualified site, such purchase occurs within five years of the  effective

 11  date  of  the  remediation certificate issued with respect to such small

 12  qualified site, and in the case of a large qualified site, such purchase

 13  occurs within ten years of the effective date of the remediation certif-

 14  icate issued  with  respect  to  such  large  qualified  site.  Provided

 15  further, that the taxpayer who or which is purchasing all or any portion

 16  of  a  qualified  site  and  the taxpayer who or which has been issued a

 17  remediation certificate with respect to such site  may  not  be  related

 18  persons,  as such term is defined in subparagraph (C) of paragraph three

 19  of subsection (b) of section four hundred  sixty-five  of  the  internal

 20  revenue code.

 21    (ii)  Where  the  entity  to  whom  a remediation certificate has been

 22  issued is a partnership, or where the entity which has purchased all  or

 23  any  portion  of  a small or large qualified site from a taxpayer who or

 24  which has been issued a remediation certificate  with  respect  to  such

 25  site  within  the applicable time limit is a partnership, any partner in

 26  such partnership who or which is taxable  under  article  nine,  nine-A,

 27  twenty-two, thirty-two or thirty-three of this chapter shall be a devel-

 28  oper  under  this  paragraph.  Where  the  entity  to whom a remediation

                                        156                        12021-01-1

  1  certificate has been issued is a New York S corporation,  or  where  the

  2  entity which has purchased all or any portion of a small or large quali-

  3  fied  site  from  a  taxpayer who or which has been issued a remediation

  4  certificate  with  respect to such site within the applicable time limit

  5  is a New York S corporation, any shareholder in such New York  S  corpo-

  6  ration shall be a developer under this paragraph.

  7    (iii)  In  order  for  a  taxpayer to be a "developer" for purposes of

  8  clause (II) of subparagraph (i) of this paragraph, such  taxpayer  shall

  9  not be a person that would have been ineligible to receive a remediation

 10  certificate  with  respect  to such site for the reasons stated in para-

 11  graphs a and c of subdivision two of section  27-1405  of  the  environ-

 12  mental conservation law.

 13    (6)  Business  tax  benefit period. The "business tax benefit period",

 14  with regard to the credits described in subdivisions (b) and (c) of this

 15  section, shall be (i) in the case of a developer of  a  small  qualified

 16  site,  a  period of fourteen consecutive taxable years of such developer

 17  or (ii) in the case of a developer of a large qualified site,  a  period

 18  of  nineteen  consecutive  taxable  years of such developer. Such period

 19  shall commence (i) in the taxable year next following the year in  which

 20  such  developer  is  issued  a remediation certificate with respect to a

 21  qualified site or (ii) in the case of a developer who has purchased  all

 22  or  any  portion  of a qualified site, in the taxable year in which such

 23  developer purchases such qualified site.

 24    (b) Remediated brownfield credit for real  property  taxes  for  small

 25  qualified  sites. (1) Allowance of credit. A developer of a small quali-

 26  fied site who or which is subject to tax  under  article  nine,  nine-A,

 27  twenty-two, thirty-two or thirty-three of this chapter, shall be allowed

 28  a  credit  against  such  tax,  pursuant to the provisions referenced in

                                        157                        12021-01-1

  1  paragraph eight of this subdivision, for eligible  real  property  taxes

  2  imposed on such small qualified site.

  3    (2) Amount of credit. The amount of the credit shall be the product of

  4  (i)  the  benefit  period factor, (ii) the employment number factor, and

  5  (iii) the eligible real property taxes paid or incurred by the developer

  6  of the small qualified site during the taxable year  (or  the  pro  rata

  7  share of such taxes in the case of a partner in a partnership).

  8    (3) Benefit period factor. The benefit period factors are set forth in

  9  the following table:

 10  Taxable year of the business            Benefit period factor:

 11      tax benefit period:

 12            1-10                                  1.0

 13            11                                     .8

 14            12                                     .6

 15            13                                     .4

 16            14                                     .2

 17    (4)  Employment  number  factor. (i) The employment number factors are

 18  set forth in the following table:

 19  Average number of full-time             Employment number factor:

 20  employees employed by the

 21  developer of a qualified

 22  site at such site during the

 23  taxable year:

 24  at least 25 but less than 50                     .25

 25  at least 50 but less than 75                     .50

 26  at least 75 but less than 100                    .75

 27  at least 100                                    1.00

                                        158                        12021-01-1

  1    (ii) For purposes of this paragraph, the average number  of  full-time

  2  employees  employed  by a developer at a qualified site during a taxable

  3  year shall be computed by determining the  number  of  such  individuals

  4  employed  by the developer on the thirty-first day of March, the thirti-

  5  eth day of June, the thirtieth day of September and the thirty-first day

  6  of  December during the taxable year, adding together the number of such

  7  individuals determined to be so employed  on  each  of  such  dates  and

  8  dividing the sum so obtained by the number of such dates occurring with-

  9  in  such  applicable  taxable  year.  For  purposes of this calculation,

 10  general executive officers  in  the  case  of  a  corporation  shall  be

 11  excluded.  Where the developer is a partner in a partnership or a share-

 12  holder in a New York S corporation, the number of full-time employees of

 13  the partnership or New York S corporation, respectively, at such  quali-

 14  fied site shall be used for purposes of this calculation.

 15    (5)  Eligible  real  property  taxes. The term "eligible real property

 16  taxes" means taxes imposed on the real property which  consists  of  the

 17  small  qualified  site  owned  by the developer, provided such taxes are

 18  imposed for a period during which the real property is a qualified site.

 19  Where the developer is a partner in a partnership or a shareholder in  a

 20  New  York  S corporation, such real property shall be owned by the part-

 21  nership or New York S corporation, respectively.

 22    (6) Credit recapture. Where a taxpayer's eligible real property  taxes

 23  which  were the basis for the allowance of the credit provided for under

 24  this subdivision are subsequently reduced as a result of a  final  order

 25  in  any  proceeding  under article seven of the real property tax law or

 26  other provision of law, the taxpayer shall add back, in the taxable year

 27  in which such final order is issued, the excess of  (i)  the  amount  of

 28  credit  originally  allowed  for  a taxable year over (ii) the amount of

                                        159                        12021-01-1

  1  credit determined based upon the reduced eligible real  property  taxes.

  2  If  such final order reduces real property taxes for more than one year,

  3  the taxpayer must determine how much of such reduction  is  attributable

  4  to  each  year  covered  by such final order and calculate the amount of

  5  credit which is required by this paragraph to  be  recaptured  for  each

  6  year based on such reduction.

  7    (7)  Credit option. If the small qualified site is located in whole or

  8  in part in an area designated as an  empire  zone  pursuant  to  article

  9  eighteen-B of the general municipal law, and a taxpayer meets the eligi-

 10  bility requirements for both the credit provided for under this subdivi-

 11  sion  and  the  QEZE  credit  for real property taxes provided for under

 12  section fifteen of this chapter, with respect to all  or  part  of  such

 13  site, such taxpayer shall not be allowed to claim both such credits. The

 14  taxpayer  shall  be required, in the first taxable year such taxpayer is

 15  allowed to claim a credit under this subdivision, to  elect  whether  to

 16  claim  the  credit  provided  for  under  this subdivision or the credit

 17  provided for under section fifteen of this chapter. Such election  shall

 18  be  made  with the filing of the return or report required under article

 19  nine, nine-A, twenty-two, thirty-two or thirty-three  of  this  chapter,

 20  whichever  is  applicable,  for  such  taxable year. Such election shall

 21  apply to and be binding in each subsequent taxable year in the  business

 22  tax  benefit  period  applicable to the credit provided for under either

 23  this section or section fifteen of this chapter. A taxpayer who or which

 24  has been allowed a credit under section fifteen of this  chapter,  in  a

 25  taxable  year  preceding the first taxable year such taxpayer is allowed

 26  to claim a credit under this subdivision, shall not  be  precluded  from

 27  making the election provided for in this paragraph.

                                        160                        12021-01-1

  1    (8)  Cross-references.  For  application of the credit provided for in

  2  this subdivision, see the following provisions of this chapter:

  3    (i) Article 9: Section 187-g.

  4    (ii) Article 9-A: Section 210: subdivision thirty-six.

  5    (iii) Article 22: Section 606: subsections (i) and (jj).

  6    (iv) Article 32: Section 1456: subsection (r).

  7    (v) Article 33: Section 1511: subdivision (v).

  8    (c)  Remediated  brownfield  credit  for real property taxes for large

  9  qualified sites. (1) Allowance of credit. A developer of a large  quali-

 10  fied  site  who  or  which is subject to tax under article nine, nine-A,

 11  twenty-two, thirty-two or thirty-three of this chapter, shall be allowed

 12  a credit against such tax, pursuant  to  the  provisions  referenced  in

 13  paragraph  eight  of  this subdivision, for eligible real property taxes

 14  imposed on such large qualified site.

 15    (2) Amount of credit. The amount of the credit shall be the product of

 16  (i) the benefit period factor, (ii) the employment  number  factor,  and

 17  (iii) the eligible real property taxes paid or incurred by the developer

 18  of  the  large  qualified  site during the taxable year (or the pro rata

 19  share of such taxes in the case of a partner in a partnership).

 20    (3) Benefit period factor. The benefit period factors are set forth in

 21  the following table:

 22  Taxable year of the business tax benefit period:  Benefit period factor:

 23                 1-15                                    1.0

 24                 16                                      .8

 25                 17                                      .6

 26                 18                                      .4

 27                 19                                      .2

                                        161                        12021-01-1

  1    (4) Employment number factor. The employment number factor shall be as

  2  prescribed in paragraph four of subdivision (b) of this section.

  3    (5)  Eligible  real  property  taxes. The term "eligible real property

  4  taxes" means taxes imposed on the real property which  consists  of  the

  5  large  qualified  site  owned  by the developer, provided such taxes are

  6  imposed for a period during which the real property is a large qualified

  7  site. Where the developer is a partner in a partnership or a shareholder

  8  in a New York S corporation, such real property shall be  owned  by  the

  9  partnership or New York S corporation, respectively.

 10    (6)  Credit recapture. Where a taxpayer's eligible real property taxes

 11  which were the basis for the allowance of the credit provided for  under

 12  this  subdivision  are subsequently reduced as a result of a final order

 13  in any proceeding under article seven of the real property  tax  law  or

 14  other provision of law, the taxpayer shall add back, in the taxable year

 15  in  which  such  final  order is issued, the excess of (i) the amount of

 16  credit originally allowed for a taxable year over  (ii)  the  amount  of

 17  credit  determined  based upon the reduced eligible real property taxes.

 18  If such final order reduces real property taxes for more than one  year,

 19  the  taxpayer  must determine how much of such reduction is attributable

 20  to each year covered by such final order and  calculate  the  amount  of

 21  credit  which  is  required  by this paragraph to be recaptured for each

 22  year based on such reduction.

 23    (7) Credit option. If the large qualified site is located in whole  or

 24  in  part  in  an  area  designated as an empire zone pursuant to article

 25  eighteen-B of the general municipal law, and a taxpayer meets the eligi-

 26  bility requirements for both the credit provided for under this subdivi-

 27  sion and the QEZE credit for real  property  taxes  provided  for  under

 28  section  fifteen  of  this  chapter, with respect to all or part of such

                                        162                        12021-01-1

  1  site, such taxpayer shall not be allowed to claim both such credits. The

  2  taxpayer shall be required, in the first taxable year such  taxpayer  is

  3  allowed  to  claim  a credit under this subdivision, to elect whether to

  4  claim  the  credit  provided  for  under  this subdivision or the credit

  5  provided for under section fifteen of this chapter. Such election  shall

  6  be  made  with the filing of the return or report required under article

  7  nine, nine-A, twenty-two, thirty-two or thirty-three  of  this  chapter,

  8  whichever  is  applicable,  for  such  taxable year. Such election shall

  9  apply to and be binding in each subsequent taxable year in the  business

 10  tax  benefit  period  applicable to the credit provided for under either

 11  this section or section fifteen of this chapter. A taxpayer who or which

 12  has been allowed a credit under section fifteen of this  chapter,  in  a

 13  taxable  year  preceding the first taxable year such taxpayer is allowed

 14  to claim a credit under this subdivision, shall not  be  precluded  from

 15  making the election provided for in this paragraph.

 16    (8)  Cross-references.  For  application of the credit provided for in

 17  this subdivision, see the following provisions of this chapter:

 18    (i) Article 9: Section 187-h.

 19    (ii) Article 9-A: Section 210: subdivision thirty-seven.

 20    (iii) Article 22: Section 606: subsections (i) and (kk).

 21    (iv) Article 32: Section 1456: subsection (s).

 22    (v) Article 33: Section 1511: subdivision (w).

 23    § 59. The tax law is amended by adding  two  new  sections  187-g  and

 24  187-h to read as follows:

 25    §  187-g.  Remediated  brownfield  credit  for real property taxes for

 26  small qualified sites. 1. Allowance  of  credit.  A  taxpayer  shall  be

 27  allowed  a  credit,  to  be  computed  as provided in subdivision (b) of

 28  section twenty-five of  this  chapter,  against  the  taxes  imposed  by

                                        163                        12021-01-1

  1  sections  one  hundred  eighty-three,  one  hundred  eighty-four and one

  2  hundred eighty-five of this article. Provided, however, that the  amount

  3  of  such  credit  allowed against the tax imposed by section one hundred

  4  eighty-four  of  this  article shall be the excess of the amount of such

  5  credit over the amount of any credit allowed by this section against the

  6  tax imposed by section one hundred eighty-three of this article.

  7    2. Application of credit. In no event  shall  the  credit  under  this

  8  section  be  allowed  in  an amount which will reduce the tax payable to

  9  less than the applicable minimum tax fixed by section one hundred eight-

 10  y-three or one hundred eighty-five of this  article.  If,  however,  the

 11  amount of credit allowed under this section for any taxable year reduces

 12  the tax to such amount, any amount of credit not thus deductible in such

 13  taxable year shall be treated as an overpayment of tax to be credited or

 14  refunded in accordance with the provisions of section ten hundred eight-

 15  y-six  of  this chapter. Provided, however, the provisions of subsection

 16  (c) of section ten hundred eighty-eight of this chapter notwithstanding,

 17  no interest shall be paid thereon.

 18    § 187-h. Remediated brownfield credit  for  real  property  taxes  for

 19  large  qualified  sites.  1.  Allowance  of  credit. A taxpayer shall be

 20  allowed a credit, to be computed  as  provided  in  subdivision  (b)  of

 21  section  twenty-five  of  this  chapter,  against  the  taxes imposed by

 22  section one  hundred  eighty-three,  one  hundred  eighty-four  and  one

 23  hundred  eighty-five of this article. Provided, however, that the amount

 24  of such credit allowed against the tax imposed by  section  one  hundred

 25  eighty-four  of  this  article shall be the excess of the amount of such

 26  credit over the amount of any credit allowed by this section against the

 27  tax imposed by section one hundred eighty-three of this article.

                                        164                        12021-01-1

  1    2. Application of credit. In no event  shall  the  credit  under  this

  2  section  be  allowed  in  an amount which will reduce the tax payable to

  3  less than the applicable minimum tax fixed by section one hundred eight-

  4  y-three or one hundred eighty-five of this  article.  If,  however,  the

  5  amount of credit allowed under this section for any taxable year reduces

  6  the tax to such amount, any amount of credit not thus deductible in such

  7  taxable year shall be treated as an overpayment of tax to be credited or

  8  refunded in accordance with the provisions of section ten hundred eight-

  9  y-six  of  this chapter. Provided, however, the provisions of subsection

 10  (c) of section ten hundred eighty-eight of this chapter notwithstanding,

 11  no interest shall be paid thereon.

 12    § 60. Section 210 of the tax law is amended by adding two new subdivi-

 13  sions 36 and 37 to read as follows:

 14    36. Remediated brownfield credit for real  property  taxes  for  small

 15  qualified sites. (a) Allowance of credit. A taxpayer which is a develop-

 16  er of a small qualified site shall be allowed a credit for eligible real

 17  property taxes, to be computed as provided in subdivision (b) of section

 18  twenty-five  of  this  chapter, against the tax imposed by this article.

 19  For purposes of this subdivision, the terms "small qualified  site"  and

 20  "developer" shall have the same meaning as set forth in paragraphs three

 21  and  five,  respectively,  of  subdivision (a) of section twenty-five of

 22  this chapter.

 23    (b) Application of credit. The credit allowed under  this  subdivision

 24  for  any taxable year shall not reduce the tax due for such year to less

 25  than the higher of the amounts prescribed in paragraphs (c) and  (d)  of

 26  subdivision  one  of  this  section.  However,  if  the amount of credit

 27  allowed under this subdivision for any taxable year reduces the  tax  to

 28  such  amount,  any  amount of credit thus not deductible in such taxable

                                        165                        12021-01-1

  1  year shall be treated as  an  overpayment  of  tax  to  be  credited  or

  2  refunded in accordance with the provisions of section ten hundred eight-

  3  y-six  of  this chapter. Provided, however, the provisions of subsection

  4  (c) of section ten hundred eighty-eight of this chapter notwithstanding,

  5  no interest shall be paid thereon.

  6    37.  Remediated  brownfield  credit  for real property taxes for large

  7  qualified sites. (a) Allowance of credit. A taxpayer which is a develop-

  8  er of a large qualified site shall be allowed a credit for eligible real

  9  property taxes, to be computed as provided in subdivision (c) of section

 10  twenty-five of this chapter, against the tax imposed  by  this  article.

 11  For  purposes  of this subdivision, the terms "large qualified site" and

 12  "developer" shall have the same meaning as set forth in paragraphs  four

 13  and  five,  respectively,  of  subdivision (a) of section twenty-five of

 14  this chapter.

 15    (b) Application of credit. The credit allowed under  this  subdivision

 16  for  any taxable year shall not reduce the tax due for such year to less

 17  than the higher of the amounts prescribed in paragraphs (c) and  (d)  of

 18  subdivision  one  of  this  section.  However,  if  the amount of credit

 19  allowed under this subdivision for any taxable year reduces the  tax  to

 20  such  amount,  any  amount of credit thus not deductible in such taxable

 21  year shall be treated as  an  overpayment  of  tax  to  be  credited  or

 22  refunded in accordance with the provisions of section ten hundred eight-

 23  y-six  of  this chapter. Provided, however, the provisions of subsection

 24  (c) of section ten hundred eighty-eight of this chapter notwithstanding,

 25  no interest shall be paid thereon.

 26    § 61. Subparagraph (B) of paragraph 1 of subsection (i) of section 606

 27  of the tax law, as separately amended by section 4 of part I, section 47

 28  of part Y, section 4 of part CC, sections 4 and 15 of part GG, section 5

                                        166                        12021-01-1

  1  of part II and section 3 of part E of chapter 63 of the laws of 2000, is

  2  amended to read as follows:

  3    (B)  shall  be  treated as the owner of a new business with respect to

  4  such share if the corporation qualifies as a new  business  pursuant  to

  5  paragraph  (j)  of subdivision twelve of section two hundred ten of this

  6  chapter , unless the shareholder has previously  received  a  refund  by

  7  reason of the application of this subparagraph, or this subsection as it

  8  was  in effect for taxable years beginning before nineteen hundred nine-

  9  ty-four .

 10                                          The corporation's

 11  With respect to the                     credit base under

 12  following credit                        section two hundred ten

 13  under this section:                     or section fourteen

 14                                          hundred fifty-six of this

 15                                          chapter is:

 16  Investment tax credit                   Investment credit base

 17  under subsection (a)                    or qualified

 18                                          rehabilitation

 19                                          expenditures under

 20                                          subdivision twelve of

 21                                          section two hundred ten

 22  Empire zone                             Cost or other basis

 23  investment tax credit                   under subdivision

 24  under subsection (j)                    twelve-B

 25                                          of section two hundred

                                        167                        12021-01-1

  1                                          ten

  2  Empire zone                             Eligible wages under

  3  wage tax credit                         subdivision nineteen of

  4  under subsection (k)                    section two hundred ten

  5                                          or subsection (e) of

  6                                          section fourteen hundred

  7                                          fifty-six

  8  Empire zone                             Qualified investments

  9  capital tax credit                      and contributions under

 10  under subsection (1)                    subdivision twenty of

 11                                          section two hundred ten

 12                                          or subsection (d) of

 13                                          section fourteen hundred

 14                                          fifty-six

 15  Agricultural property tax               Allowable school

 16  credit under subsection (n)             district property taxes under

 17                                          subdivision twenty-two of

 18                                          section two hundred ten

 19  Credit for employment                   Qualified first-year wages or

 20  of persons with dis-                    qualified second-year wages

 21  abilities under                         under subdivision

 22  subsection (o)                          twenty-three of section

 23                                          two hundred ten

 24                                          or subsection (f)

                                        168                        12021-01-1

  1                                          of section fourteen

  2                                          hundred fifty-six

  3  Employment incentive                    Applicable investment credit

  4  credit under subsec-                    base under subdivision

  5  tion (a-1)                              twelve-D of section two

  6                                          hundred ten

  7  Empire zone                             Applicable investment

  8  employment                              credit under sub-

  9  incentive credit under                  division twelve-C

 10  subsection (j-1)

 11  Alternative fuels credit                Cost under subdivision

 12  under subsection (p)                    twenty-four of section two

 13                                          hundred ten

 14  Qualified emerging                      Applicable credit base

 15  technology company                      under subdivision twelve-E

 16  employment credit                       of section two hundred ten

 17  under subsection (q)

 18  Qualified emerging                      Qualified investments under

 19  technology company                      subdivision twelve-F of

 20  capital tax credit                      section two hundred ten

 21  under subsection (r)

                                        169                        12021-01-1

  1  Credit for purchase of an               Cost of an automated

  2  automated external defibrillator        external defibrillator under

  3  under subsection (s)                    subdivision twenty-five of

  4                                          section two hundred ten

  5                                          or subsection (j) of section

  6                                          fourteen hundred fifty-six

  7  Low-income housing                      Credit amount under

  8  credit under subsection (x)             subdivision thirty

  9                                          of section two hundred ten or

 10                                          subsection (1) of section

 11                                          fourteen hundred fifty-six

 12  Credit for transportation               Amount of credit under sub-

 13  improvement contributions               division thirty-two of section

 14  under subsection (z)                    two hundred ten or subsection

 15                                          (n) of section fourteen

 16                                          hundred fifty-six

 17  IMB credit for energy                   Amount of credit

 18  taxes under sub-                        under subdivision

 19  section (t-1)                           twenty-six-a of

 20                                          section two hundred ten

 21  QEZE credit for real property           Amount of credit under

 22  taxes under subsection (bb)             subdivision twenty-seven of

 23                                          section two hundred ten or

 24                                          subsection (o) of section

                                        170                        12021-01-1

  1                                          fourteen hundred fifty-six

  2  QEZE tax reduction credit               Amount of credit under

  3  under subsection (cc)                   subdivision twenty-eight of

  4                                          section two hundred ten or

  5                                          subsection (p) of section

  6                                          fourteen hundred fifty-six

  7  Green building credit                   Amount of green building credit

  8  under subsection (y)                    under subdivision thirty-one

  9                                          of section two hundred ten

 10                                          or subsection (m) of section

 11                                          fourteen hundred fifty-six

 12  Credit for long-term                    Qualified costs under

 13  care insurance premiums                 subdivision twenty-five-a of

 14  under subsection (aa)                   section two hundred ten

 15                                          or subsection (k) of section

 16                                          fourteen hundred fifty-six

 17  Remediated brownfield                   Amount of credit under

 18  credit for real property                subdivision thirty-six

 19  taxes for small qualified               of section two hundred

 20  sites under subsection                  ten or subsection (r) of

 21  (jj)                                    section fourteen hundred

 22                                          fifty-six

                                        171                        12021-01-1

  1  Remediated brownfield                   Amount of credit under

  2  credit for real property                subdivision thirty-seven

  3  taxes for large qualified               of section two hundred

  4  sites under subsection                  ten or subsection (s) of

  5  (kk)                                    section fourteen hundred

  6                                          fifty-six

  7    § 62. Subparagraph (B) of paragraph 1 of subsection (i) of section 606

  8  of  the tax law, as separately amended by section 4 of part I, section 4

  9  of part CC, sections 4 and 15 of part GG,  section  5  of  part  II  and

 10  section  3  of  part  E of chapter 63 of the laws of 2000, is amended to

 11  read as follows:

 12    (B) shall be treated as the owner of a new business  with  respect  to

 13  such  share  if  the corporation qualifies as a new business pursuant to

 14  paragraph (j) of subdivision twelve of section two hundred ten  of  this

 15  chapter ,  unless  the  shareholder  has previously received a refund by

 16  reason of the application of this subparagraph, or this subsection as it

 17  was in effect for taxable years beginning before nineteen hundred  nine-

 18  ty-four .

 19                                          The corporation's

 20  With respect to the                     credit base under

 21  following credit                        section two hundred ten

 22  under this section:                     or section fourteen

 23                                          hundred fifty-six of this

 24                                          chapter is:

 25  Investment tax credit                   Investment credit base

 26  under subsection (a)                    or qualified

                                        172                        12021-01-1

  1                                          rehabilitation

  2                                          expenditures under

  3                                          subdivision twelve of

  4                                          section two hundred ten

  5  Empire zone                             Cost or other basis

  6  investment tax credit                   under subdivision

  7  under subsection (j)                    twelve-B

  8                                          of section two hundred

  9                                          ten

 10  Empire zone                             Eligible wages under

 11  wage tax credit                         subdivision nineteen of

 12  under subsection (k)                    section two hundred ten

 13                                          or subsection (e) of

 14                                          section fourteen hundred

 15                                          fifty-six

 16  Empire zone                             Qualified investments

 17  capital tax credit                      and contributions under

 18  under subsection (1)                    subdivision twenty of

 19                                          section two hundred ten

 20                                          or subsection (d) of

 21                                          section fourteen hundred

 22                                          fifty-six

 23  Agricultural property tax               Allowable school

 24  credit under subsection (n)             district property taxes under

                                        173                        12021-01-1

  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  Empire zone                             Applicable investment

 15  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)

                                        174                        12021-01-1

  1  Qualified emerging                      Qualified investments under

  2  technology company                      subdivision twelve-F of

  3  capital tax credit                      section two hundred ten

  4  under subsection (r)

  5  Credit for purchase of an               Cost of an automated

  6  automated external defibrillator        external defibrillator under

  7  under subsection (s)                    subdivision twenty-five of

  8                                          section two hundred ten

  9                                          or subsection (j) of section

 10                                          fourteen hundred fifty-six

 11  Low-income housing                      Credit amount under

 12  credit under subsection (x)             subdivision thirty

 13                                          of section two hundred ten or

 14                                          subsection (1) of section

 15                                          fourteen hundred fifty-six

 16  Credit for transportation               Amount of credit under sub-

 17  improvement contributions               division thirty-two of section

 18  under subsection (z)                    two hundred ten or subsection

 19                                          (n) of section fourteen

 20                                          hundred fifty-six

 21  QEZE credit for real property           Amount of credit under

 22  taxes under subsection (bb)             subdivision twenty-seven of

 23                                          section two hundred ten or

 24                                          subsection (o) of section

                                        175                        12021-01-1

  1                                          fourteen hundred fifty-six

  2  QEZE tax reduction credit               Amount of credit under

  3  under subsection (cc)                   subdivision twenty-eight of

  4                                          section two hundred ten or

  5                                          subsection (p) of section

  6                                          fourteen hundred fifty-six

  7  Green building credit                   Amount of green building credit

  8  under subsection (y)                    under subdivision thirty-one

  9                                          of section two hundred ten

 10                                          or subsection (m) of section

 11                                          fourteen hundred fifty-six

 12  Credit for long-term                    Qualified costs under

 13  care insurance premiums                 subdivision twenty-five-a of

 14  under subsection (aa)                   section two hundred ten

 15                                          or subsection (k) of section

 16                                          fourteen hundred fifty-six

 17  Remediated brownfield                   Amount of credit under

 18  credit for real property                subdivision thirty-six

 19  taxes for small qualified               of section two hundred

 20  sites under subsection                  ten or subsection (r) of

 21  (jj)                                    section fourteen hundred

 22                                          fifty-six

                                        176                        12021-01-1

  1  Remediated brownfield                   Amount of credit under

  2  credit for real property                subdivision thirty-seven

  3  taxes for large qualified               of section two hundred

  4  sites under subsection                  ten or subsection (s) of

  5  (kk)                                    section fourteen hundred

  6                                          fifty-six

  7    §  63.  Section  606  of  the  tax  law  is  amended by adding two new

  8  subsections (jj) and (kk) to read as follows:

  9    (jj) Remediated brownfield credit for real property  taxes  for  small

 10  qualified sites. (1) Allowance of credit. A taxpayer which is a develop-

 11  er of a small qualified site shall be allowed a credit for eligible real

 12  property taxes, to be computed as provided in subdivision (b) of section

 13  twenty-five  of  this  chapter, against the tax imposed by this article.

 14  For purposes of this subsection, the terms "small  qualified  site"  and

 15  "developer" shall have the same meaning as set forth in paragraphs three

 16  and  five,  respectively,  of  subdivision (a) of section twenty-five of

 17  this chapter.

 18    (2) Application of credit. If the amount of the credit  allowed  under

 19  this subsection for any taxable year shall exceed the taxpayer's tax for

 20  such  year,  the  excess shall be treated as an overpayment of tax to be

 21  credited or refunded in accordance with the provisions  of  section  six

 22  hundred  eighty-six of this article, provided, however, that no interest

 23  shall be paid thereon.

 24    (kk) Remediated brownfield tax credit  for  real  property  taxes  for

 25  large  qualified  sites.  (1) Allowance of credit. A taxpayer which is a

 26  developer of a large qualified site shall be allowed a credit for eligi-

 27  ble real property taxes, to be computed as provided in  subdivision  (c)

 28  of  section twenty-five of this chapter, against the tax imposed by this

                                        177                        12021-01-1

  1  article. For purposes of this subsection,  the  terms  "large  qualified

  2  site"  and "developer" shall have the same meaning as set forth in para-

  3  graphs four and five, respectively, of subdivision (a) of section  twen-

  4  ty-five of this chapter.

  5    (2)  Application  of credit. If the amount of the credit allowed under

  6  this subsection for any taxable year shall exceed the taxpayer's tax for

  7  such year, the excess shall be treated as an overpayment of  tax  to  be

  8  credited  or  refunded  in accordance with the provisions of section six

  9  hundred eighty-six of this article, provided, however, that no  interest

 10  shall be paid thereon.

 11    §  64.  Section  1456  of  the  tax  law  is amended by adding two new

 12  subsections (r) and (s) to read as follows:

 13    (r) Remediated brownfield credit for real  property  taxes  for  small

 14  qualified sites. (1) Allowance of credit. A taxpayer which is a develop-

 15  er of a small qualified site shall be allowed a credit for eligible real

 16  property taxes, to be computed as provided in subdivision (b) of section

 17  twenty-five  of  this  chapter, against the tax imposed by this article.

 18  For purposes of this subsection, the terms "small  qualified  site"  and

 19  "developer" shall have the same meaning as set forth in paragraphs three

 20  and  five,  respectively,  of  subdivision (a) of section twenty-five of

 21  this chapter.

 22    (2) Application of credit. The  credit allowed under  this  subsection

 23  for  any taxable year shall not reduce the tax due for such year to less

 24  than the minimum tax fixed by  paragraph  three  of  subsection  (b)  of

 25  section  fourteen  hundred  fifty-five  of  this article. However,if the

 26  amount of credit allowed under this  subsection  for  any  taxable  year

 27  reduces the tax to such amount, any amount of credit thus not deductible

 28  in  such  taxable  year  shall be treated as an overpayment of tax to be

                                        178                        12021-01-1

  1  credited or refunded in accordance with the provisions  of  section  ten

  2  hundred eighty-six of this chapter. Provided, however, the provisions of

  3  subsection  (c)  of  section  ten  hundred  eighty-eight of this chapter

  4  notwithstanding, no interest shall be paid thereon.

  5    (s)  Remediated  brownfield  credit  for real property taxes for large

  6  qualified sites. (1) Allowance of credit. A taxpayer which is a develop-

  7  er of a large qualified site shall be allowed a credit for eligible real

  8  property taxes, to   be computed  as  provided  in  subdivision  (c)  of

  9  section  twenty-five  of  this  chapter, against the tax imposed by this

 10  article. For purposes of this subsection,  the  terms  "large  qualified

 11  site" and  "developer" shall have the same meaning as set forth in para-

 12  graphs  four and five, respectively, of subdivision (a) of section twen-

 13  ty-five of this chapter.

 14    (2) Application of credit. The credit allowed  under  this  subsection

 15  for  any taxable year shall not reduce the tax due for such year to less

 16  than the minimum tax fixed by  paragraph  three  of  subsection  (b)  of

 17  section  fourteen  hundred  fifty-five  of this article. However, if the

 18  amount of credit allowed under this  subsection  for  any  taxable  year

 19  reduces the tax to such amount, any amount of credit thus not deductible

 20  in  such  taxable  year  shall be treated as an overpayment of tax to be

 21  credited or refunded in accordance with the provisions  of  section  ten

 22  hundred eighty-six of this chapter. Provided, however, the provisions of

 23  subsection  (c)  of  section  ten  hundred  eighty-eight of this chapter

 24  notwithstanding, no interest shall be paid thereon.

 25    § 65. Section 1511 of the tax law is amended by adding two new  subdi-

 26  visions (v) and (w) to read as follows:

 27    (v)  Remediated  brownfield  credit  for real property taxes for small

 28  qualified sites. (1) Allowance of credit. A taxpayer which is a develop-

                                        179                        12021-01-1

  1  er of a small qualified site shall be allowed a credit for eligible real

  2  property taxes, to be computed as provided in subdivision (b) of section

  3  twenty-five of this chapter, against the tax imposed  by  this  article.

  4  For  purposes  of this subdivision, the terms "small qualified site" and

  5  "developer" shall have the same meaning as set forth in paragraphs three

  6  and five, respectively, of subdivision (a)  of  section  twenty-five  of

  7  this chapter.

  8    (2)  Application  of credit. The credit allowed under this subdivision

  9  for any taxable year shall not reduce the tax due for such year to  less

 10  than  the  minimum  tax  fixed  by  paragraph four of subdivision (a) of

 11  section fifteen hundred two of this article. However, if the  amount  of

 12  credit  allowed  under this subdivision for any taxable year reduces the

 13  tax to such amount, any amount of credit thus  not  deductible  in  such

 14  taxable year shall be treated as an overpayment of tax to be credited or

 15  refunded in accordance with the provisions of section ten hundred eight-

 16  y-six  of  this chapter. Provided, however, the provisions of subsection

 17  (c) of section ten hundred eighty-eight of this chapter notwithstanding,

 18  no interest shall be paid thereon.

 19    (w) Remediated brownfield credit for real  property  taxes  for  large

 20  qualified sites. (1) Allowance of credit. A taxpayer which is a develop-

 21  er of a large qualified site shall be allowed a credit for eligible real

 22  property taxes, to be computed as provided in subdivision (c) of section

 23  twenty-five  of  this  chapter, against the tax imposed by this article.

 24  For purposes of this subdivision, the terms "large qualified  site"  and

 25  "developer"  shall have the same meaning as set forth in paragraphs four

 26  and five, respectively, of subdivision (a)  of  section  twenty-five  of

 27  this chapter.

                                        180                        12021-01-1

  1    (2)  Application  of credit. The credit allowed under this subdivision

  2  for any taxable year shall not reduce the tax due for such year to  less

  3  than  the  minimum  tax  fixed  by  paragraph four of subdivision (a) of

  4  section fifteen hundred two of this article. However, if the  amount  of

  5  credit  allowed  under this subdivision for any taxable year reduces the

  6  tax to such amount, any amount of credit thus  not  deductible  in  such

  7  taxable year shall be treated as an overpayment of tax to be credited or

  8  refunded in accordance with the provisions of section ten hundred eight-

  9  y-six  of  this chapter. Provided, however, the provisions of subsection

 10  (c) of section ten hundred eighty-eight of this chapter notwithstanding,

 11  no interest shall be paid thereon.

 12    § 66. This act shall take effect immediately, provided  that  sections

 13  thirty-six,  thirty-seven,  thirty-eight, thirty-nine, forty-one, forty-

 14  two, forty-three, forty-four and forty-five of this act shall be  deemed

 15  to have been in full force and effect as if the sections were enacted on

 16  April  1, 2001, and provided further that sections forty-six, forty-sev-

 17  en, forty-eight, fifty-one, fifty-six and fifty-seven of this act  shall

 18  apply  to  taxable years beginning on or after January 1, 2002, but only

 19  to site costs incurred and property placed in service on or after  Janu-

 20  ary  1,  2001; provided, however, that nothing contained herein shall be

 21  deemed to affect the application, qualification,  expiration,  reversion

 22  or repeal of any provision of law amended by any section of this act and

 23  the provisions of this act shall be applied or qualified or shall expire

 24  or  revert  or be deemed repealed in the same manner, to the same extent

 25  and on the same date as the case may be as otherwise  provided  by  law.

 26  Provided  that  sections  fifty-eight,  fifty-nine,  sixty, sixty-three,

 27  sixty-four and sixty-five of this act shall apply to tax years beginning

 28  on or after January 1, 2003.  Provided further that sections  forty-nine

                                        181                        12021-01-1

  1  and  sixty-one of this act shall take effect on the same date as section

  2  3 of part E of chapter  63  of  the  laws  of  2000  takes  effect;  and

  3  provided,  further  that  sections fifty and sixty-two of this act shall

  4  take  effect  on  the same date as the repeal of section 47 of part Y of

  5  chapter 63 of the laws of 2000.  Provided further, subdivisions  13  and

  6  14  of  section  97-b of the state finance law, as designated by section

  7  thirty-six of this act, shall be deemed repealed effective  April  first

  8  of  the  state  fiscal  year following the certification provided for in

  9  subdivision 15 of such section 97-b; and provided further that the state

 10  comptroller shall notify the legislative bill drafting  commission  upon

 11  the  occurrence  of  the certification provided for in subdivision 15 of

 12  section 97-b of the state finance law in order that the  commission  may

 13  maintain an accurate and timely effective data base of the official text

 14  of  the  laws  of  the state of New York in furtherance of effecting the

 15  provisions of section 44 of the legislative law and section 70-b of  the

 16  public officers law.

 17                                   PART B

 18    Section  1.  Subdivision  7  of  section  56-0101 of the environmental

 19  conservation law, as added by chapter  413  of  the  laws  of  1996,  is

 20  amended to read as follows:

 21    7.  "Environmental restoration project" means a project to investigate

 22  or to remediate hazardous substances  located on real property  held  in

 23  title by a municipality,  pursuant to title five of this article.

 24    §  2.  Section 56-0502 of the environmental conservation law, as added

 25  by chapter 413 of the laws of 1996, is amended to read as follows:

 26  § 56-0502. Definitions.

                                        182                        12021-01-1

  1     For  1. "Municipality", for purposes of this title   "municipality" ,

  2  shall  have the same meaning as provided in subdivision  twelve  fifteen

  3  of section 56-0101 of this article, except  that  such  term  shall  not

  4  refer  to  a  municipality  that  generated, transported or disposed of,

  5  arranged  for, or that caused the generation, transportation or disposal

  6  of hazardous substance located at real property proposed to be  investi-

  7  gated or to be remediated under an environmental restoration project.

  8    2.  "Cost", for purposes of this title, shall have the same meaning as

  9  provided in subdivision four of section 56-0101 of this article,  except

 10  that  such  term shall not include the requirement to reduce the cost of

 11  an approved project in accordance with any federal or  state  funds  for

 12  the project received or to be received by the municipality.

 13    3.  "Environmental  restoration  investigation  project", shall mean a

 14  project, undertaken in accordance with the requirements of  this  title,

 15  to  investigate  hazardous  substances  located in, on or emanating from

 16  real property either held in title by a municipality or  for  which  fee

 17  title may be acquired by a municipality.

 18    4.  "Environmental  restoration  remediation  project",  shall  mean a

 19  project, undertaken in accordance with the requirements of  this  title,

 20  to  remediate hazardous substances located in, on or emanating from real

 21  property held in title by a municipality.

 22    § 3. Section 56-0503 of the environmental conservation law,  as  added

 23  by chapter 413 of the laws of 1996, is amended to read as follows:

 24  § 56-0503. Environmental restoration projects; state assistance.

 25    1.   The commissioner may enter into a contract with a municipality to

 26  provide state assistance to such municipality to undertake  an  environ-

 27  mental  restoration project.  The amount of state assistance payment for

 28  such project shall be up to an amount of:

                                        183                        12021-01-1

  1    (a)  seventy-five  ninety  percent  of  the  eligible  costs  of  such

  2  project,  subject  to  the provisions set forth in paragraph (b) of this

  3  subdivision;

  4    (b)  one  hundred  percent  of  the  eligible costs of any remediation

  5  directed by the department to be undertaken outside  the  boundaries  of

  6  the  real  property  that  is  subject  to  an environmental restoration

  7  project approved by the department.

  8    2.  In addition to such other terms and conditions  that  the  commis-

  9  sioner  may  deem  to  be  appropriate,  such  contract shall provide as

 10  follows:

 11    (a) An estimate of the cost of  such  project  as  determined  by  the

 12  commissioner at the time of such contract's execution;

 13    (b)    An  agreement by the commissioner to periodically reimburse the

 14  municipality for eligible costs incurred during  the  progress  of  such

 15  project.  Such payments shall be subject to final computation and deter-

 16  mination  of  the  total state assistance share of the eligible costs of

 17  the entire environmental restoration project;

 18    (c)   A provision  providing   that  if   any  federal  payments ,  in

 19  accordance  with the required department approval of any settlement with

 20  a responsible party, any responsible party  payments ,  and/or  payments

 21  received  from  the disposition of the real property subject to an envi-

 22  ronmental restoration project  become  available  to  the  municipality,

 23  before,  during  or after the completion of an environmental restoration

 24  project, which were not included when the  state  share  was  calculated

 25  pursuant  to  this section, the state assistance share shall be recalcu-

 26  lated and the municipality shall pay to the state, for deposit into  the

 27  environmental restoration project account of the hazardous waste remedi-

 28  al  fund  established  under section ninety-seven-b of the state finance

                                        184                        12021-01-1

  1  law, the difference between the original state  assistance  payment  and

  2  the recalculated state share.  Recalculation of the state share shall be

  3  done  each  time a  federal payment,  payment from a responsible party ,

  4  or  payment  received from the disposition of such property  is received

  5  by the municipality;

  6    (d)   A provision that  if  any  monies  received  from   any  federal

  7  payments,  payments  from  a responsible party, and/or payments received

  8  from  the disposition of  such property  the real property subject to an

  9  environmental restoration project exceed the municipality's cost of such

 10  property, including taxes owed to the municipality upon acquisition, and

 11  the municipality's cost of the environmental  restoration  project,  the

 12  amount  of  such excess necessary to reimburse the state of New York for

 13  the state assistance provided to the municipality under this title shall

 14  be  divided equally between the municipality and the state of New  York,

 15  the  state  share  of  which  shall  be deposited into the environmental

 16  restoration project account of the hazardous waste remedial fund  estab-

 17  lished  under  section  ninety-seven-b of the state finance law  paid to

 18  the state of New York for deposit  into  the  environmental  restoration

 19  project  account  of the hazardous waste remedial fund established under

 20  section ninety-seven-b of the state finance law;

 21    (e)  An agreement by the municipality to  proceed  expeditiously  with

 22  and  complete such project in accordance with plans approved for payment

 23  of the municipality's share of such project's cost;

 24    (f) An agreement by the municipality that it shall prepare and  imple-

 25  ment a public participation plan  prior to remedial activities undertak-

 26  en pursuant to this section. The  for environmental restoration projects

 27  undertaken  pursuant to this title. The requirements of the plan will be

 28  governed by decision of the municipality to proceed with remediation  of

                                        185                        12021-01-1

  1  the  property under this title. However, in all cases, implementation of

  2  the plan shall be completed as part of the project. In those cases where

  3  the municipality does not intend to  proceed  with  remediation  of  the

  4  property, the plan shall provide timely and accessible disclosure of the

  5  results  of  the  investigation to the interested public. The plan shall

  6  provide for adequate public notice of the availability of  the  investi-

  7  gation results; an opportunity for submission of written comments; and a

  8  filing  of a notice of the results of the investigation as authorized by

  9  section two hundred ninety-one-i of the real  property  law.  Where  the

 10  municipality  intends  to proceed with remediation of the property under

 11  this title, the plan shall provide opportunities  for  early,  inclusive

 12  participation  prior  to  the selection of a preferred course of action,

 13  facilitate communication, including dialogue among the municipality, the

 14  department, and the interested public, and provide timely and accessible

 15  disclosure of information. At a minimum, the design of  the  plan  shall

 16  take  into  account  the  scope  and scale of the proposed environmental

 17  restoration remediation project,  local  interest,  and  other  relevant

 18  factors.  The plan shall also provide for: adequate public notice of the

 19  availability of a draft remedial  plan;  a  forty-five  day  period  for

 20  submission  of  written  comments;  a  public  hearing  on  such plan if

 21  substantive issues are raised by members of the affected community;  and

 22  technical assistance if so requested by members of the affected communi-

 23  ty.  Provided,  however, that the requirements of this subdivision shall

 24  not apply to interim remedial measures undertaken as part of an environ-

 25  mental restoration project  to address emergency  site  conditions .  In

 26  such  instance,  the department or such persons implementing the interim

 27  remedial measure or making the  request  shall  conduct  public  partic-

                                        186                        12021-01-1

  1  ipation  activities  as  the  department deems necessary and appropriate

  2  under such circumstances.

  3    (g)  An agreement by the municipality that it shall put into place any

  4  engineering and/or institutional controls (including deed  restrictions)

  5  that  the department may deem necessary to allow the contemplated use to

  6  proceed, that such engineering and/or institutional  controls  shall  be

  7  binding  on  such  municipality, any successor in title, and any lessees

  8  and that any successors in title and any lessees cannot challenge  state

  9  enforcement of such controls;

 10    (h)  In  the event that such engineering controls and/or institutional

 11  controls are necessary the municipality  and  its  successors  in  title

 12  shall agree to develop a plan which ensures that such engineering and/or

 13  institutional  controls be continually maintained in the manner required

 14  by the department. Such plan shall be approved by the department.  Fail-

 15  ure to implement the plan or maintain such controls shall  constitute  a

 16  violation  of such contract and shall terminate for the duration of such

 17  failure the protection afforded under subdivision one of section 56-0509

 18  of this title;

 19    (i) In the event that deed restrictions  are  required,  such  munici-

 20  pality  shall  agree  to cause such deed restrictions to be recorded and

 21  indexed as declarations of restrictions in the office of  the  recording

 22  officer  of  the  county  or counties where the real property subject to

 23  such  environmental  restoration  project  is  located  in  the   manner

 24  prescribed by article nine of the real property law. Such declaration of

 25  restriction  shall contain the name of the owner of record of such prop-

 26  erty, along with the tax map parcel number or the  section,  block,  and

 27  lot number of such property; and

                                        187                        12021-01-1

  1    (j)    A  provision  that  exempts a municipality and any successor in

  2  title, lender, or lessee from the requirement to  obtain  any  state  or

  3  local permit or other authorization for any activity needed to implement

  4   such  a project  that is conducted on the real property subject to such

  5  project  so  long  as   to investigate or remediate hazardous substances

  6  pursuant to this title, provided that the activity  is  conducted  in  a

  7  manner which satisfies all substantive technical requirements applicable

  8  to like activity conducted pursuant to a permit.

  9    §  4.  Section 56-0505 of the environmental conservation law, as added

 10  by chapter 413 of the laws of 1996, is amended to read as follows:

 11  § 56-0505. Environmental restoration projects; criteria.

 12    1. The department shall determine the eligibility of an  environmental

 13  restoration project for state assistance under this title based upon the

 14  following criteria:

 15    (a) the benefit to the environment realized by the expeditious remedi-

 16  ation of the property proposed to be subject to such project;

 17    (b)  the  economic benefit to the state by the expeditious remediation

 18  of the property proposed to be subject to such project; and

 19    (c) the potential opportunity of the property proposed to  be  subject

 20  to such project to be used for public recreational purposes ; and

 21    (d)  the opportunity for other funding sources to be available for the

 22  remediation of such property, including, but not limited to, enforcement

 23  actions against responsible parties  (other  than  the  municipality  to

 24  which  state assistance was provided under this title; or a successor in

 25  title, lender, or lessee who was not otherwise a responsible party prior

 26  to such municipality taking title to  the  property),  state  assistance

 27  payments  pursuant  to  title  thirteen  of article twenty-seven of this

 28  chapter, and the existence of private parties willing to remediate  such

                                        188                        12021-01-1

  1  property using private funding sources. Highest priority shall be grant-

  2  ed to projects for which other such funding sources are not available .

  3    2.  The department shall not enter into a contract with a municipality

  4  pursuant to section 56-0503 for an environmental restoration project for

  5  any site listed in the registry of inactive hazardous waste sites  under

  6  section  27-1305 of this chapter and given a classification as described

  7  in subparagraph one or two of paragraph b of subdivision  four  of  such

  8  section 27-1305.

  9    3.  The  remediation objective of an environmental restoration remedi-

 10  ation project shall meet the same  standard  for  protection  of  public

 11  health  and  the environment that applies to remedial actions undertaken

 12  pursuant to section 27-1313 of this chapter.

 13    4.  After completion of such project, the  municipality  may  use  the

 14  property  for  public purposes or may dispose of it. If the municipality

 15  shall dispose of such property by sale  to  a  responsible  party,  such

 16  party  shall pay to such municipality, in addition to such other consid-

 17  eration, an amount of money constituting the amount of state  assistance

 18  provided  to the municipality under this title plus accrued interest and

 19  transaction costs and the municipality shall deposit that money into the

 20  environmental restoration project account of the hazardous waste remedi-

 21  al fund established under section ninety-seven-b of  the  state  finance

 22  law   Property  may  continue to be used for the purpose for which it is

 23  being  used  prior  to  achievement  of  the  environmental  restoration

 24  project's  objectives  if  the  department  determines that the existing

 25  state of contamination does not pose a risk sufficient to prohibit  such

 26  use  from  continuing, giving due regard to human health and protection,

 27  and if the department determines that such use does not  interfere  with

 28  the environmental restoration project.

                                        189                        12021-01-1

  1    5.  In  the  event  that  such  an environmental restoration project's

  2  remediation objective shall not have been attained to  the  department's

  3  satisfaction at the time of the municipality's disposition of such prop-

  4  erty, such municipality shall be liable to ensure that such objective is

  5  attained within the time called for in the state assistance contract.

  6    6.  If  the municipality shall dispose of property subject to an envi-

  7  ronmental restoration project by sale to a responsible party, such party

  8  shall pay to such municipality, in addition to such other consideration,

  9  an amount of money constituting the amount of state assistance  provided

 10  to  the  municipality  under this title plus accrued interest and trans-

 11  action costs, which the municipality shall then pay  to  the  state  for

 12  deposit  into  the  environmental  restoration  project  account  of the

 13  hazardous waste remedial fund established under  section  ninety-seven-b

 14  of the state finance law.

 15    §  5.  Section 56-0507 of the environmental conservation law, as added

 16  by chapter 413 of the laws of 1996, is amended to read as follows:

 17  § 56-0507. Recovery of state assistance.

 18    1.  A municipality receiving state assistance under this title  under-

 19  takes  an  environmental  restoration project as agent of the state with

 20  respect to the incurrence of eligible costs.

 21    2.  The state shall make all reasonable efforts to  recover  the  full

 22  amount  of  any state assistance provided under this title through liti-

 23  gation brought under this section or other statute or under  the  common

 24  law,  or through cooperative agreements, with responsible parties (other

 25  than the municipality to which state assistance was provided under  this

 26  title; or a successor in title, lender or lessee who was not otherwise a

 27  responsible party prior to the municipality taking title to such proper-

 28  ty).   Notwithstanding nay requirement under this section, the state may

                                        190                        12021-01-1

  1  elect not to recover all or any  portion  of  its  costs  from  a  party

  2  responsible  according  to  applicable principles of statutory or common

  3  law liability where such party's liability arises solely from  ownership

  4  or  operation  of  the  subject  property  subsequent to the disposal of

  5  hazardous substances at such property.

  6    3. Any and all monies recovered or reimbursed pursuant to this section

  7  shall be deposited into the environmental restoration project account of

  8  the  hazardous  waste   remediation   remedial  fund  established  under

  9  section ninety-seven-b of the state finance law.

 10    §  6.  Subdivisions  1,  2, 3 and 5 of section 56-0509 of the environ-

 11  mental conservation law, as added by chapter 413 of the  laws  of  1996,

 12  are amended to read as follows:

 13    1.  (a)  Notwithstanding  any  other  provision  of  law and except as

 14  provided in subdivision two of this section  and  in  paragraph  (h)  of

 15  subdivision  two  of  section 56-0503 of this title, the following shall

 16  not be liable to the state upon any statutory or  common  law  cause  of

 17  action,  or to any person upon any statutory cause of action arising out

 18  of the presence of any hazardous substance in or on property at any time

 19  before the effective date of a contract entered into  pursuant  to  this

 20  title:

 21    (i)  a  municipality  receiving  state  assistance under this title to

 22  undertake an environmental restoration project and  complying  with  the

 23  terms and conditions of the contract providing such assistance; and

 24    (ii) a successor in title to the real property subject to such project

 25  where  the  municipality  holds  or held title to the real property; any

 26  lessee of such property; and any person that provides financing to  such

 27  party relative to the remediation, restoration, or redevelopment of such

 28  property,  provided  that such successor in title, lessee, or lender did

                                        191                        12021-01-1

  1  not generate, arrange for, transport, or dispose, and did not cause  the

  2  generation,  arrangement for, transportation, or disposal of any hazard-

  3  ous substance located at such property, and did not own such property.

  4    (b)  Notwithstanding  any  other  provision  of this title, any person

  5  seeking the benefit of this subdivision shall bear the burden of proving

  6  that a cause of action, or any part thereof, is attributable  solely  to

  7  hazardous  substances  present in or on such parcel before the effective

  8  date of such contract.

  9    2.  Subdivision one of this section shall not  apply  to  relieve  any

 10  municipality, successor in title, lessee, or lender from liability aris-

 11  ing from:  Any municipality, successor in title, lessee, or lender iden-

 12  tified  in  paragraph  (a)  of subdivision one of this section shall not

 13  receive the liability protections identified  in  subdivisions  one  and

 14  three of this section where liability results from:

 15    (a) failing to implement such project to the department's satisfaction

 16  or failing to comply with the terms and conditions of the contract;

 17    (b)  fraudulently  demonstrating that the cleanup levels identified in

 18  or to be identified in accordance with such project were reached;

 19    (c) causing the release or threat of release at the  property  subject

 20  to  such  project of any hazardous substance after the effective date of

 21  such contract;  or 

 22    (d)  changing such property's use from the intended use as  identified

 23  in  the  contract pursuant to section 56-0503 to a use requiring a lower

 24  level of residual contamination unless the  additional  remedial  activ-

 25  ities  are  undertaken which shall meet the same standard for protection

 26  of public health and the environment that applies  to  remedial  actions

 27  undertaken  pursuant  to 27-1313 of this chapter so that such use can be

                                        192                        12021-01-1

  1  implemented with sufficient protection of public health and the environ-

  2  ment.  violating the provisions of section 56-0511 of this title;

  3    (e)  failing  to  implement  the plan or to implement and maintain the

  4  engineering and/or institutional controls required by the department  in

  5  accordance  with  paragraph (h) of subdivision two of section 56-0503 of

  6  this title; or

  7    (f) using property subject to an environmental restoration project  in

  8  violation of the requirements of this title.

  9    3.  The  state  shall  indemnify  and  save harmless any municipality,

 10  successor in title, lessee, or lender  indentified  identified in  para-

 11  graph  (a) of subdivision one of this section in the amount of any judg-

 12  ment, or settlement, obtained against such  municipality,  successor  in

 13  title,  lessee or lender in any court for any common law cause of action

 14  arising out of the presence of any hazardous substance in or on property

 15  at anytime before the effective date of a contract entered into pursuant

 16  to this title. Such municipality, successor in title, lessee  or  lender

 17  shall  be entitled to representation by the attorney general, unless the

 18  attorney general determines, or a court of competent jurisdiction deter-

 19  mines, that such representation would constitute a conflict of interest,

 20  in which case the attorney general shall certify to the comptroller that

 21  such party is entitled to private counsel of its choice, and  reasonable

 22  attorneys'  fees  and  expenses  shall  be  reimbursed by the state. Any

 23  settlement of such an action shall be subject to  the  approval  of  the

 24  attorney  general  as to form and amount, and this subdivision shall not

 25  apply to any settlement of any such action which has not  received  such

 26  approval.

 27    5. In addition to any other powers the department may have, including,

 28  but  not  limited  to,  the  powers set forth in section 56-0517 of this

                                        193                        12021-01-1

  1  title, the department shall have the authority to  periodically  inspect

  2   each  project  site   property  to  ensure that the use of the property

  3  complies with the terms and conditions of  the contract  any engineering

  4  and/or institutional controls placed on the property.

  5    §  7.  Section 56-0511 of the environmental conservation law, as added

  6  by chapter 413 of the laws of 1996, is amended to read as follows:

  7  § 56-0511. Change of use.

  8    1. At least sixty days before the  start  of  physical  alteration  or

  9  construction  constituting a change of use at a property investigated or

 10  remediated under an environmental restoration project, or at least sixty

 11  days before a change of use at such a property not involving  any  phys-

 12  ical alteration or construction, as the case may be, the person or enti-

 13  ty  proposing to make a change of use shall provide written notification

 14  to the department and the clerks of the county and other  municipalities

 15  in which such property is located.

 16    2.  No  person shall engage in any activity at a property investigated

 17  or remediated under an environmental restoration  project  that  is  not

 18  consistent  with  restrictions  placed  upon the use of the property, or

 19  that will, or that reasonably is anticipated to:  prevent  or  interfere

 20  significantly  with a proposed, ongoing, or completed project; or expose

 21  the public health or the environment to a significantly increased threat

 22  of harm or damage  at  from such property. If  the  commissioner  deter-

 23  mines  that  a  proposed  change  of  use is prohibited pursuant to this

 24  section, he shall, within forty-five days after receipt of the  complete

 25  notice  required  by this section, provide the person giving such notice

 26  with a written determination that such change of use will not be author-

 27  ized, together with the reasons for such determination.

 28    3. For the purposes of this section:

                                        194                        12021-01-1

  1    (i) "change of use" means the transfer of title  to  all  or  part  of

  2  property  subject  to  an environmental restoration  agreement  project,

  3  the erection of any structure on such  property,   the  paving  of  such

  4  property  for  use  as  a roadway or parking lot,  and the creation of a

  5  park  or other public or private recreational facility on such property,

  6  or any activity that is likely to disrupt or expose hazardous substances

  7  or to increase direct human exposure; or any other conduct that will  or

  8  may  tend  to significantly interfere with an ongoing or completed envi-

  9  ronmental restoration project.   "Change of use"  shall  not  include  a

 10  transfer  of  property where physical alteration of the property subject

 11  to an environmental restoration project is not contemplated. In the case

 12  of title transfers with no physical alteration of property subject to an

 13  environmental restoration project,  owners  of  property  shall  provide

 14  notice  of  proposed  transfers  of  title  within  a reasonable time in

 15  advance of the transfer.

 16    (ii) "complete notice" means a notice  that  adequately  apprises  the

 17  department  of  the contemplated physical alteration of the property and

 18  how such alteration may affect  the  property's  proposed,  ongoing,  or

 19  completed   remediation  project, or of the proposed new owner's ability

 20  to implement the engineering and institutional controls associated  with

 21  the  property's remediation  property.

 22    § 8. The environmental conservation law is amended by adding three new

 23  sections 56-0513, 56-0515, and 56-0517 to read as follows:

 24  § 56-0513. Immunity.

 25    Section eight of the court of claims act or any other provision of law

 26  to  the contrary notwithstanding, the state shall be immune from liabil-

 27  ity and action with respect to any act or omission done in the discharge

 28  of the department's responsibilities pursuant to this  title;  provided,

                                        195                        12021-01-1

  1  however,  that  this  section  shall  not  limit the liability which may

  2  otherwise exist for the unlawful, willful or malicious acts or omissions

  3  on the part of the state, state agencies, or their  officers,  employees

  4  or  agents;  or  for the ownership or responsibility for the disposal of

  5  hazardous substances according to law.

  6  § 56-0515. Permit Waivers.

  7    The department, by and through the commissioner, shall  be  authorized

  8  to  exempt  a  person  from the requirement to obtain any state or local

  9  permit or other authorization for any activity  needed  to  implement  a

 10  project  to  investigate  or  remediate hazardous substances pursuant to

 11  this title; provided, that the activity is conducted in a  manner  which

 12  satisfies  all  substantive  technical  requirements  applicable to like

 13  activity conducted pursuant to a permit.

 14  § 56-0517. Access to sites.

 15    The department, by and through the commissioner, shall  be  authorized

 16  to:

 17    1. Require that any person permit a duly designated officer or employ-

 18  ee  of  the  department  or  of  a  municipal corporation, or any agent,

 19  consultant or contractor of the department  or  of  a  municipal  corpo-

 20  ration, or any other person, including an employee, agent, consultant or

 21  contractor  of  a  responsible  person  acting  at  the direction of the

 22  department, so authorized in writing by the commissioner, to enter  upon

 23  any property which has or may have a hazardous substance on such proper-

 24  ty, and/or areas near such property, for the following purposes:

 25    a.  To  inspect  and  take  samples of such hazardous substance and/or

 26  environmental media, utilizing such sampling methods as may be necessary

 27  or appropriate including without limitation soil borings and  monitoring

 28  wells;  provided,  that  no  sampling  methods involving the substantial

                                        196                        12021-01-1

  1  disturbance of the ground surface of such property may be utilized until

  2  after a minimum of ten days  written  notice  thereof  shall  have  been

  3  provided  to  the  owner  and operator and occupant of such property, if

  4  identifiable  by  reasonable  efforts,  unless  the commissioner makes a

  5  written determination that such notice will not allow the protection  of

  6  the  public  health  or  the environment, in which case two days written

  7  notice shall be sufficient;

  8    b. To implement the cleanup, removal, remediation  or  restoration  of

  9  hazardous  substances and/or environmental media; provided, that no such

 10  work may be undertaken until after a minimum of ten days written  notice

 11  thereof  shall have been provided to the owner and operator and occupant

 12  of such property, if identifiable  by  reasonable  efforts,  unless  the

 13  commissioner  makes  a  written  determination that such notice will not

 14  allow the protection of the public health or the environment,  in  which

 15  case two days written notice shall be sufficient.

 16    2. a. Require that any person furnish to the department, in a form and

 17  manner  as  prescribed  by  the  department, information relating to the

 18  current and past hazardous  substance  generation,  treatment,  storage,

 19  disposal  and/or  transportation  activities of such person or any other

 20  person now or formerly under the control of such person;  in  the  event

 21  such  person  cannot  comply therewith, in whole or in part, such person

 22  shall furnish to the department information describing all efforts  made

 23  by  such person to comply therewith; any information so furnished to the

 24  department shall be considered a  "written  instrument"  as  defined  in

 25  subdivision three of section 175.00 of the penal law;

 26    b. Require that any person permit a duly designated officer or employ-

 27  ee  of  the  department at all reasonable times to have access to and to

 28  copy all books, papers, documents and records relating  to  the  current

                                        197                        12021-01-1

  1  and  past  hazardous  substance generation, treatment, storage, disposal

  2  and/or transportation activities of such person or  any  person  now  or

  3  formerly under the control of such person;

  4    c.  Require,  by  subpoena  issued  in the name of the department, the

  5  production of books, papers, documents and other records, and the rendi-

  6  tion of testimony by deposition under oath of any person relating to the

  7  current and past hazardous  substance  generation,  treatment,  storage,

  8  disposal  and/or  transportation activities of such person or any person

  9  now or formerly under the control of such  person;  such  subpoenas  and

 10  depositions  shall be regulated by the civil practice law and rules; the

 11  commissioner may invoke the powers of the supreme court of the state  of

 12  New York to compel compliance therewith.

 13    §  9.  Subdivision  2  of  section  97-b  of the state finance law, as

 14  amended by chapter 413 of the laws  of  1996,  is  amended  to  read  as

 15  follows:

 16    2. Such fund shall consist of all of the following:

 17    (a)  moneys appropriated for transfer to the fund's site investigation

 18  and construction account; (b) all fines and other  sums  accumulated  in

 19  the fund prior to April first, nineteen hundred eighty-eight pursuant to

 20  section 71-2725 of the environmental conservation law for deposit in the

 21  fund's  site  investigation  and  construction  account;  (c) all moneys

 22  collected or received by the department of taxation and finance pursuant

 23  to section 27-0923 of the environmental conservation law for deposit  in

 24  the  fund's  industry fee transfer account; (d) all moneys paid into the

 25  fund pursuant to section 72-0201 of the environmental  conservation  law

 26  which  shall  be  deposited in the fund's industry fee transfer account;

 27  (e) all moneys paid into the fund pursuant to section one hundred eight-

 28  y-six of the navigation law which  shall  be  deposited  in  the  fund's

                                        198                        12021-01-1

  1  industry  fee  transfer  account;  (f)  all moneys paid into the fund by

  2  municipalities for repayment of landfill closure loans made pursuant  to

  3  title  five  of  article fifty-two of the environmental conservation law

  4  for  deposit  in the fund's site investigation and construction account;

  5  (g) all monies recovered under  section  sections 56-0503,  56-0505  and

  6  56-0507  of  the  environmental  conservation  law  for deposit into the

  7  fund's environmental restoration project account; and (h)  other  moneys

  8  credited or transferred thereto from any other fund or source for depos-

  9  it in the fund's site investigation and construction account.

 10    §  10.  This  act shall take effect immediately and shall be deemed to

 11  have been in full force and effect on and after April 1, 2001.

 12                                   PART C

 13    Section 1.  Subdivision 3 of section 92-s of the state finance law, as

 14  amended by chapter 309 of the laws  of  1996,  is  amended  to  read  as

 15  follows:

 16    3.  Such  fund shall consist of the amount of revenue collected within

 17  the state from the amount of revenue, interest and  penalties  deposited

 18  pursuant  to  section  fourteen  hundred  twenty-one of the tax law, the

 19  amount of fees and penalties received from easements or leases  pursuant

 20  to  subdivision fourteen of section seventy-five of the public lands law

 21  and the money received as annual service  charges  pursuant  to  section

 22  four  hundred four-l of the vehicle and traffic law, all moneys required

 23  to be deposited therein from the contingency reserve  fund  pursuant  to

 24  section  two  hundred  ninety-four of chapter fifty-seven of the laws of

 25  nineteen hundred ninety-three,  all  moneys  required  to  be  deposited

 26  pursuant  to  section thirteen of chapter six hundred ten of the laws of

                                        199                        12021-01-1

  1  nineteen hundred ninety-three, repayments  of  loans  made  pursuant  to

  2  section  54-0511  of  the  environmental  conservation  law,  all moneys

  3  received as consideration, royalties, rentals, bonuses or other  compen-

  4  sation from oil and gas production leases pursuant to section 23-1101 of

  5  the  environmental conservation law, except those moneys which are to be

  6  deposited in the conservation fund as provided by  section  eighty-three

  7  of  this article, all moneys to be deposited from the Northville settle-

  8  ment pursuant to section thirteen of the chapter of the laws of nineteen

  9  hundred ninety-six which enacted this provision, provided however,  that

 10  such  moneys  shall only be used for the cost of the purchase of private

 11  lands in the core area of the central Suffolk pine barrens pursuant to a

 12  consent order with the Northville industries  signed  on  October  thir-

 13  teenth,  nineteen  hundred ninety-four and the related resource restora-

 14  tion and replacement plan, and all other moneys credited or  transferred

 15  thereto  from any other fund or source pursuant to law. All such revenue

 16  shall be initially deposited into the environmental protection fund, for

 17  application as provided in subdivision five of this section.

 18    § 2. Paragraphs (b), (c) and (d) of subdivision 6 of section  92-s  of

 19  the  state finance law, paragraphs (b) and (c) as amended by chapter 432

 20  of the laws of 1997 and paragraph (d) as amended by section 13 of part E

 21  of chapter 61 of the laws of 2000, are amended to read as follows:

 22    (b) Moneys from the solid waste account shall be  available,  pursuant

 23  to appropriation and upon certificate of approval of availability by the

 24  director of the budget, for any non-hazardous municipal landfill closure

 25  project;  municipal  waste reduction or recycling project, as defined in

 26  article fifty-four  of  the  environmental  conservation  law;  for  the

 27  purposes  of  section  two  hundred  sixty-one  and  section two hundred

 28  sixty-four of the economic development law; any project for the develop-

                                        200                        12021-01-1

  1  ment, updating or revision of local solid waste management plans  pursu-

  2  ant  to  sections  27-0107 and 27-0109 of the environmental conservation

  3  law; and for the development of the pesticide sales and use data base in

  4  conjunction  with Cornell University pursuant to title twelve of article

  5  thirty-three of the environmental conservation law; and for any  project

  6  to assess and recover any natural resource damages to the Hudson River.

  7    (c)  Moneys  from  the  parks,  recreation  and  historic preservation

  8  account shall be available, pursuant to appropriation, for any municipal

  9  park  project,  historic  preservation  project,  urban  cultural   park

 10  project,   waterfront  revitalization  program,  coastal  rehabilitation

 11  project, state parks and lands infrastructure and  stewardship  project,

 12  Hudson  River  Park project consistent with chapter five hundred ninety-

 13  two of the laws of nineteen  hundred  ninety-eight,  and  historic  barn

 14  project.

 15    (d) Moneys from the open space account shall be available, pursuant to

 16  appropriation,  for any open space land conservation project, bio-diver-

 17  sity stewardship and research pursuant to chapter  five  hundred  fifty-

 18  four  of  the laws of nineteen hundred ninety-three, for the purposes of

 19  agricultural and farmland protection activities as authorized by article

 20  twenty-five-AAA of the agriculture and  markets  law,  non-point  source

 21  abatement  and control projects pursuant to section 17-1409 of the envi-

 22  ronmental conservation law and section eleven-b of the  soil  and  water

 23  conservation  districts law, soil and water conservation district activ-

 24  ities authorized for reimbursement pursuant to section eleven-a  of  the

 25  soil and water conservation districts law, for projects to implement the

 26  Hudson  River  estuary  management  plan  prepared  pursuant  to section

 27  11-0306 of the environmental conservation law, for Long  Island  Central

 28  Pine  Barrens  area  planning or Long Island south shore estuary reserve

                                        201                        12021-01-1

  1  planning pursuant to title thirteen of article fifty-four of  the  envi-

  2  ronmental  conservation  law,   and  for operation and management of the

  3  Albany Pine Bush preserve commission  pursuant  to  subdivision  two  of

  4  section 54-0303 of the environmental conservation law.

  5    §  3.  Paragraph a of subdivision 3 of section 23-1101 of the environ-

  6  mental conservation law, as added by chapter 722 of the laws of 1977, is

  7  amended and a new subdivision 7 is added to read as follows:

  8    a. Provide for payment to the  general fund  of  the  state   environ-

  9  mental  protection fund as provided in section ninety-two-s of the state

 10  finance law such consideration, royalties,  rentals,  bonuses  or  other

 11  compensation  as  shall,  in the discretion of the department, be in the

 12  best interests of the people of the state of New York.

 13    7. All moneys received pursuant to this section shall be deposited  in

 14  the environmental protection fund as provided in section ninety-two-s of

 15  the state finance law, except for those moneys which are to be deposited

 16  in  the  conservation  fund  as  provided by section eighty-three of the

 17  state finance law.

 18    § 4. Article 54 of the environmental conservation law  is  amended  by

 19  adding a new title 14 to read as follows:

 20                                   TITLE 14

 21        STATE PARKS AND LANDS INFRASTRUCTURE AND STEWARDSHIP PROJECTS

 22  Section 54-1401. Definitions.

 23          54-1402. State  parks  and  lands infrastructure and stewardship

 24                     projects.

 25  § 54-1401. Definitions.

 26    As used in this title:

 27    1. "Stewardship" shall mean the care  of  the  lands,  facilities  and

 28  natural  and cultural resources under the jurisdiction of the department

                                        202                        12021-01-1

  1  and the office of parks, recreation and historic preservation on  behalf

  2  of the public, and the provision of public access thereto.

  3    2.  "State  parks  and  lands  infrastructure"  shall  mean state park

  4  resources, recreational facilities and  historic  sites  and  any  other

  5  property, real or personal, under the jurisdiction of the department and

  6  the office of parks, recreation and historic preservation, together with

  7  machinery,  equipment, furnishings and fixtures relating thereto or used

  8  in connection therewith.

  9    3. "State parks and lands  infrastructure  and  stewardship  projects"

 10  shall  mean  all costs incurred or to be incurred by or on behalf of the

 11  department and the office of parks, recreation and historic preservation

 12  for the purpose of preserving, improving or rehabilitating  state  parks

 13  and  lands infrastructure. Such projects may include, but are not limit-

 14  ed to: natural resource and habitat restoration and protection  such  as

 15  the  protection  and management of biological, land, geological, archeo-

 16  logical and other natural resources, survey  and  inventory,  scientific

 17  research,  planning  and  analysis,  and  development of unit management

 18  plans; projects to improve public access including access  opportunities

 19  for  people  with disabilities by developing, restoring, reconstructing,

 20  rehabilitating and maintaining physical facilities,  including  but  not

 21  limited  to  buildings,  roads,  bridges  and  waste  disposal  systems;

 22  projects to develop, maintain, or improve  marine  resource  facilities,

 23  water  access  facilities,  recreational  trails,  campgrounds,  day use

 24  areas, fish hatcheries, public beach facilities, visitor centers, inter-

 25  pretive and conservation education facilities; and historic preservation

 26  projects to improve, restore or  rehabilitate  property  listed  on  the

 27  state  or national registers of historic places to protect the historic,

 28  cultural or architectural significance thereof.

                                        203                        12021-01-1

  1  § 54-1402. State  parks  and  lands   infrastructure   and   stewardship

  2               projects.

  3    1.  The  commissioner  and  the  commissioner of parks, recreation and

  4  historic preservation are authorized to undertake state parks and  lands

  5  infrastructure and stewardship projects.

  6    2.  No  monies shall be expended for state parks and lands infrastruc-

  7  ture and stewardship projects except pursuant to an appropriation there-

  8  for.

  9    § 5. Subdivision 7 of  section  92-s  of  the  state  finance  law  is

 10  REPEALED.

 11    §  6.  Subdivision 2 of section 54-0509 of the environmental conserva-

 12  tion law, as amended by section 18 of part A of chapter 58 of  the  laws

 13  of 1998, is amended to read as follows:

 14    2.  An agreement by the commissioner to make state assistance payments

 15  toward the cost of the project by periodically reimbursing  the  munici-

 16  pality  for costs incurred during the progress of the project to a maxi-

 17  mum of either fifty  percent  of  the  cost,  or   seventy-five   ninety

 18  percent  of  the  cost for a municipality with a population smaller than

 19  thirty-five hundred as  determined  by  the  current  federal  decennial

 20  census,  or two million dollars, whichever is less. The commissioner may

 21  consider landfill  gas  management  projects  separately  from  landfill

 22  closure  projects.    Such  costs  are  subject to final computation and

 23  determination by the commissioner upon completion of  the  project,  and

 24  shall  not  exceed  the  maximum  cost  set forth in the contract.   For

 25  purposes of this subdivision, the approved project cost shall be reduced

 26  by the amount of any specific state  assistance  payments  for  landfill

 27  closure  project  purposes received by the municipality from any source;

 28  provided, however, that non-specific state assistance payments, such  as

                                        204                        12021-01-1

  1  amounts  paid  pursuant  to section fifty-four of the state finance law,

  2  shall not be included in such cost reduction.

  3    § 7. Section 1421 of the tax law, as amended by section 7 of part A of

  4  chapter 58 of the laws of 1998, is amended to read as follows:

  5    §  1421. Deposit and dispositions of revenues.  From the taxes, inter-

  6  est and penalties attributable to the tax imposed  pursuant  to  section

  7  fourteen  hundred  two  of  this article, the amount of thirty-three and

  8  one-half million dollars shall be deposited by the  comptroller  in  the

  9  environmental  protection  fund  established pursuant to section ninety-

 10  two-s of the state finance law  for  the  fiscal  year  beginning  April

 11  first,  nineteen hundred ninety-five; the amount of eighty-seven million

 12  dollars shall be deposited in such fund for the fiscal  years  beginning

 13  April  first,  nineteen  hundred ninety-six and nineteen hundred ninety-

 14  seven, and the amount of one hundred twelve  million  dollars  shall  be

 15  deposited  in such fund for the fiscal year beginning April first, nine-

 16  teen hundred ninety-eight and  the  amount  of  one  hundred  thirty-two

 17  million  dollars  shall  be  deposited  in such fund for the fiscal year

 18  beginning April first, two thousand one and for each fiscal year  there-

 19  after,  for  disposition  as  provided under such section.  On or before

 20  June twelfth, nineteen hundred ninety-five and on or before the  twelfth

 21  day  of  each month thereafter (excepting the first and second months of

 22  each fiscal year), the comptroller shall deposit into such fund from the

 23  taxes, interest and penalties collected pursuant to such  section  four-

 24  teen hundred two of this article which have been deposited and remain to

 25  the comptroller's credit in the banks, banking houses or trust companies

 26  referred  to in section one hundred seventy-one-a of this chapter at the

 27  close of business on the last day of  the  preceding  month,  an  amount

 28  equal to one-tenth of the annual amount required to be deposited in such

                                        205                        12021-01-1

  1  fund  pursuant to this section for the fiscal year in which such deposit

  2  is required to be made.  In the event such amount of taxes, interest and

  3  penalties so remaining to the comptroller's  credit  is  less  than  the

  4  amount  required  to  be  deposited  in such fund by the comptroller, an

  5  amount equal to the shortfall shall be deposited in  such  fund  by  the

  6  comptroller  with  subsequent deposits, as soon as the revenue is avail-

  7  able. Beginning April first, nineteen hundred  ninety-seven,  the  comp-

  8  troller  shall transfer monthly to the clean water/clean air fund estab-

  9  lished pursuant to section ninety-seven-bbb of the  state  finance  law,

 10  all  moneys  remaining from such taxes, interest and penalties collected

 11  that are not required for deposit in the environmental protection fund.

 12    § 8. This act shall take effect immediately and  shall  be  deemed  to

 13  have been in full force and effect on and after April 1, 2001.

 14                                   PART D

 15    Section  1.  Subdivision  2  of  section  33-0901 of the environmental

 16  conservation law, as amended by chapter 612 of  the  laws  of  1983,  is

 17  amended to read as follows:

 18    2.  Any  person  desiring  such  a  permit  shall  file an application

 19  containing such information required by the commissioner and in  a  form

 20  prescribed  by  the  commissioner.  The  commissioner  shall examine the

 21  application and shall issue or refuse  to  issue  the  permit  requested

 22  therein.  The  commissioner shall impose whatever restrictions or condi-

 23  tions on the permit he deems appropriate in order to fully  protect  the

 24  public  interest.  Such  a  permit shall not be valid for more than  two

 25  years  one year as determined by the commissioner. A separate permit  is

                                        206                        12021-01-1

  1  required  for each location in the state, and a fee for each location in

  2  the state of one  hundred fifty dollars is required.

  3    §  2.  Paragraph  d  of  subdivision 3 of section 33-0905, as added by

  4  chapter 612 of the laws of 1983, is amended to read as follows:

  5    d. Pesticide applicator certifications shall be valid for   six   five

  6  years  after  which  every  applicator  shall recertify according to the

  7  requirements then in effect. Certification identification cards shall be

  8  valid for  three years  one year.

  9    § 3. Section 33-0911 of the environmental conservation law,  as  added

 10  by chapter 612 of the laws of 1983, is amended to read as follows:

 11  § 33-0911. Certification and registration fees.

 12    1. Every applicant for pesticide applicator certification shall pay an

 13  examination fee of  ten  fifty dollars for each examination.

 14    2.   Fees  Annual fees for pesticide applicator  certificates  certif-

 15  ication shall be  fifteen  seventy-five dollars for commercial pesticide

 16  applicator certification in  each  one individual category,  twenty-five

 17  dollars  for each additional category and  five  twenty-five dollars for

 18  each additional sub-category chosen.  For  private  applicators   a   an

 19  annual fee of fifteen dollars for the initial certified private applica-

 20  tor  and  five  dollars for subsequent applicators on the same  form of 

 21  farm or business  shall be charged at the time of initial certification,

 22  renewal of certification or recertification .

 23    3. Pesticide businesses shall pay an annual registration  fee  of  one

 24  hundred  fifty  dollars. When the applicant regularly maintains or oper-

 25  ates more than one business address a fee may be required  for  each  of

 26  the  applicant's  business addresses in the state. Any agency which is a

 27  state agency, municipal corporation, public authority, or college  shall

 28  be exempt from any fee for registration.

                                        207                        12021-01-1

  1    § 4. This act shall take effect April 1, 2001.

  2                                   PART E

  3    Section  1.  Subdivision  2  of  section  3-0113  of the environmental

  4  conservation law, as amended by chapter 62  of  the  laws  of  1989,  is

  5  amended to read as follows:

  6    2.  Any   county,  city,  town  or  village clerk who  entity which is

  7  authorized by section 11-0713 of this chapter to sell hunting,  trapping

  8  and  fishing  licenses  is  hereby authorized, but not required, to sell

  9  annual subscriptions to the department's  official  magazine,  "The  New

 10  York  State  Conservationist."  The fee to be charged  by a clerk  for a

 11  subscription to such magazine shall be such fee as the commissioner may,

 12  after consultation with the division of the budget, deem  necessary  for

 13  the  best  interest  of  the  state. Such fee shall be collected  by the

 14  clerk  from each subscriber at the time  of  receiving  application  for

 15  subscription.   Each  clerk  shall remit direct to the department on the

 16  first and fifteenth of  each  month  all  fees  collected  by  him  from

 17  subscribers,  less  fifty  cents  for each year's subscription obtained,

 18  which he shall be entitled to retain. Subscription applications,  filled

 19  out to indicate the names and addresses of the persons to whom the maga-

 20  zine  is  to  be  sent, shall also be forwarded to the department by the

 21  clerks on the first of each month. The fifty  cents  which  a  clerk  is

 22  authorized  to  deduct  from  each year's subscription obtained shall be

 23  subject to laws providing for the disposition of other fees arising from

 24  the performance of his official duties as  clerk   All  collected  fees,

 25  minus a 5.5 percent commission, shall be remitted monthly, on a schedule

 26  to  be  determined  by the department.  All  of the  receipts department

                                        208                        12021-01-1

  1  from subscriptions shall be deposited in an account in the miscellaneous

  2  special revenue fund-other. The comptroller is authorized  and  directed

  3  to  permit interest earnings on any balances to accrue to the benefit of

  4  this account.

  5    §  2. Subdivision 13 of section 11-0305 of the environmental conserva-

  6  tion law is REPEALED and subdivisions 14, 15, 16 and 17  are  renumbered

  7  subdivisions 13, 14, 15 and 16.

  8    §  3. Section 11-0305 of the environmental conservation law is amended

  9  by adding a new subdivision 17 to read as follows:

 10    17. To prepare or cause to be prepared voluntary  habitat  stamps  and

 11  furnish  such stamps annually to license issuing agents and officers for

 12  sale and issuance in the same manner as  licenses  and  other  types  of

 13  stamps.  The  purchase  of  a stamp is voluntary and a stamp need not be

 14  possessed in order to take fish or wildlife.

 15    § 4. Paragraph (a) of subdivision 3 of section 11-0327 of the environ-

 16  mental conservation law, as added by chapter 308 of the laws of 1994, is

 17  amended to read as follows:

 18    (a) To review the allocations and expenditures of the  department  for

 19  fish  and wildlife purposes as provided in section 11-0303 of this title

 20  and report to the commissioner by  July  first   November  fifteenth  of

 21  each year.  The commissioner shall, by August first of each year, submit

 22  such  report,  in  its  entirety,  to  the governor, the legislature and

 23  interested individuals and organizations.  To assist the  board  in  its

 24  review  the department shall by September first of each year make avail-

 25  able to the board current and anticipated income  and  expenditures  for

 26  the  fish  and wildlife programs, including planned expenditures by time

 27  and activity code for the next fiscal year. Such  report  shall  include

 28  the  findings  of  the  advisory  board  regarding  such allocations and

                                        209                        12021-01-1

  1  expenditures, including expenditures and appropriations from the conser-

  2  vation fund and the extent to which such expenditures and appropriations

  3  are consistent with the requirements of state law.    The  report  shall

  4  also include recommended maximum annual fees for the licenses and stamps

  5  identified  in  subdivision  3  of  section  11-0715 of this article. In

  6  recommending such fees the board shall consider economic indicators, the

  7  status of the conservation fund, and such program indicators as  it  may

  8  deem  appropriate.  The  commissioner  shall  submit such report, in its

  9  entirety, to the governor and the legislature.

 10    § 5. Subparagraph 1 of paragraph a of subdivision 2 of section 11-0701

 11  of the environmental conservation law is REPEALED and a new subparagraph

 12  1 is added to read as follows:

 13    (1) A small and big game license entitles the resident holder to  hunt

 14  wildlife subject to the following:

 15    (i)  a  holder who is eighteen years of age or older may hunt wildlife

 16  as provided in title 9 of this article,

 17    (ii) a holder who is sixteen years of age or older may hunt  wildlife,

 18  except big game, as provided in title 9 of this article, and

 19    (iii)  a  holder  who  is between the ages of sixteen and eighteen may

 20  hunt big game pursuant to the provisions of  title  9  of  this  article

 21  while the holder is accompanied by a parent, guardian or person over the

 22  age of eighteen as required by section 11-0929 of this article.

 23    A  holder  may take fish with a gun or longbow as provided in titles 9

 24  and 13 of this article.

 25    § 6. Paragraph b of subdivision 2 of section 11-0701 of  the  environ-

 26  mental conservation law is amended to read as follows:

 27    b.  A  special antlerless deer license is applicable to the hunting of

 28  wild antlerless deer in a special open season fixed pursuant to subdivi-

                                        210                        12021-01-1

  1  sion 6 of section 11-0903 of this article in a tract within a Wilderness

  2  Hunting Area and entitles the holder of a  big game license who is enti-

  3  tled to hunt wild deer as provided in paragraph a  license which author-

  4  izes the holder to hunt big game to hunt antlerless deer in such special

  5  open  season,  as  provided  in title 9 of this article if he has on his

  6  person while so hunting both his  big game  license which authorizes the

  7  holder to hunt big game and his special antlerless deer license.

  8    § 7. Paragraph c of subdivision 2 of section 11-0701 of  the  environ-

  9  mental  conservation  law, as amended by chapter 57 of the laws of 1993,

 10  is amended to read as follows:

 11    c. A junior archery license entitles a resident holder who is  between

 12  the ages of fourteen and sixteen years to hunt wild deer and bear with a

 13  longbow  during the special archery season and during the regular season

 14   in areas restricted to bowhunting only , as provided in title 9 of this

 15  article, as if such person held a  big game   license  which  authorizes

 16  the  holder to hunt big game with a bowhunting stamp affixed, subject to

 17  the provisions of section 11-0929  and  subdivision   6   3  of  section

 18  11-0713  of  this  article.  It  entitles  a  non-resident holder who is

 19  between the ages of fourteen and sixteen years to  hunt  wild  deer  and

 20  bear  with  a  longbow  during the special archery season and during the

 21  regular season  in areas restricted to bowhunting only , as provided  in

 22  title  9 of this article, as if such person held a non-resident bowhunt-

 23  ing license a non-resident license which authorizes the holder  to  hunt

 24  deer  and  a non-resident bear tag, subject to the provisions of section

 25  11-0929 and subdivision  six  3 of section 11-0713 of this article.

 26    § 8. Paragraphs d and e of subdivision 2 of  section  11-0701  of  the

 27  environmental conservation law are REPEALED.

                                        211                        12021-01-1

  1    §  9.  Subdivision 3 of section 11-0701 of the environmental conserva-

  2  tion law, as amended by chapter 160 of the laws of 1979, is  amended  to

  3  read as follows:

  4    3.  A  bowhunting  stamp when affixed to a  big game  resident license

  5  which authorizes the holder to hunt big game entitles a  holder  who  is

  6  eighteen  years  of age or older to hunt wild deer and bear with a long-

  7  bow, as provided in title 9  of  this  article,  in  a  special  longbow

  8  season,  and it entitles a holder who is between the ages of sixteen and

  9  eighteen years to exercise the same privileges subject to the provisions

 10  of section 11-0929 and subdivision  6  3  of  section  11-0713  of  this

 11  article.

 12    §  10. Subdivision 5 of section 11-0701 of the environmental conserva-

 13  tion law, as amended by chapter 57 of the laws of 1993,  is  amended  to

 14  read as follows:

 15    5.  a.  A  combined resident  hunting,  fishing and small and big game

 16  license hereinafter in this article referred to as a sportsman  license,

 17  entitles the holder to the privileges the holder would have if the hold-

 18  er  held  separately  a  hunting, a  fishing license and a small and big

 19  game license.

 20    b. A combined resident fishing, small and  big  game,  bowhunting  and

 21  muzzle-loading  license,  hereinafter  in  this article referred to as a

 22  resident super-sportsman license, entitles the holder to the  privileges

 23  the holder would have if the holder held separately a fishing license, a

 24  small  and big game license, a bowhunting stamp, a muzzle-loading stamp,

 25  and a turkey permit.

 26    § 11. Subdivision 6 of section 11-0701 of the environmental  conserva-

 27  tion  law,  as  amended by chapter 646 of the laws of 1977 and as renum-

 28  bered by chapter 208 of the laws of 1978 and the  opening  paragraph  as

                                        212                        12021-01-1

  1  redesignated  by  chapter 450 of the laws of 1991, is amended to read as

  2  follows:

  3    6. A combination free  hunting-big  small and big game hunting-fishing

  4  license entitles the holder to the privileges  he  the holder would have

  5  if  he  the holder held ,  separately ,  a  hunting,  small and big game

  6   hunting   license and a fishing license, provided, however, if the said

  7  combination  free   hunting-big   small  and  big  game  hunting-fishing

  8  license  is  stamped  by  the issuing clerk "FISHING ONLY" the holder is

  9  entitled only to the privileges  he  the holder would have if   he   the

 10  holder held a fishing license.

 11    §  12. Subdivision 8 of section 11-0701 of the environmental conserva-

 12  tion law, as amended by chapter 450 of the laws of 1991, is  amended  to

 13  read as follows:

 14    8.  A  five-day  seven-day fishing license entitles the  non-resident 

 15  holder to exercise the privileges of a fishing license  for  the   five 

 16  seven consecutive days specified in the license.

 17    §  13. Subdivision 9 of section 11-0701 of the environmental conserva-

 18  tion law is REPEALED.

 19    § 14. Subdivision 11 of section 11-0701 of the environmental conserva-

 20  tion law, as added by chapter 198 of the laws of 1977 and as  renumbered

 21  by chapter 470 of the laws of 1994, is amended to read as follows:

 22    11.  A  muzzle-loading  stamp  when  affixed  to a  big game  resident

 23  license which authorizes the holder to hunt big game entitles  a  holder

 24  who  is  sixteen years of age or older to hunt wild deer and bear with a

 25  muzzle-loading firearm, as provided in title  nine  9 of  this  article,

 26  in a special muzzle-loading firearm season.

                                        213                        12021-01-1

  1    § 15. Subdivision 12 of section 11-0701 of the environmental conserva-

  2  tion  law, as added by chapter 450 of the laws of 1991 and as renumbered

  3  by chapter 470 of the laws of 1994, is amended to read as follows:

  4    12.  a.  A junior  hunting  small game license entitles the holder age

  5  twelve to age  sixteen  thirteen to hunt  small game   wildlife,  except

  6  big  game, as provided in title 9 of this article subject, specifically,

  7  to the provisions of section 11-0929 of this article. It  entitles  such

  8  holder  to  possess  firearms as provided in section 265.05 of the penal

  9  law.

 10    b. A junior small and big game license entitles the holder  age  four-

 11  teen  to  age sixteen to hunt wildlife, except big game, pursuant to the

 12  provisions of title 9 of this article and to hunt big  game  during  the

 13  special muzzle-loading season and during the regular season, as provided

 14  in  title  9  of  this  article,  as if such person held a license which

 15  authorizes the holder to hunt  big  game  with  a  muzzle-loading  stamp

 16  affixed,  provided  that the holder is accompanied by a parent, guardian

 17  or person over the age of eighteen as required  by  section  11-0929  of

 18  this article.

 19    §  16.  Subdivisions  13, 14 and 15 of section 11-0701 of the environ-

 20  mental conservation law, as added by chapter 57 of the laws of 1993  and

 21  as renumbered by chapter 470 of the laws of 1994, are amended to read as

 22  follows:

 23    13.  A  non-resident  bowhunting license entitles a person who has not

 24  been a resident of the state for more than thirty days to hunt wild deer

 25  with a longbow in a special  longbow  season   and  during  the  regular

 26  season   as provided  for  in title 9 of this article and, when accompa-

 27  nied by a non-resident bear tag, entitles the holder to hunt bear with a

 28  longbow during the open bear season.

                                        214                        12021-01-1

  1    14. A non-resident muzzle-loading license entitles a  person  who  has

  2  not  been a resident of the state for more than thirty days to hunt wild

  3  deer with a  muzzleloader  muzzle-loading firearm in a  special  muzzle-

  4  loading  season   and  during  the  regular season  as provided  for  in

  5  title  9  of  this  article and, when accompanied by a non-resident bear

  6  tag, entitles the holder to hunt bear with  a  muzzleloader  during  the

  7  open bear season.

  8    15. A non-resident combined hunting, fishing, big game, bowhunting and

  9  muzzle-loading  license,  hereinafter  in  this article referred to as a

 10  non-resident super sportsman license, entitles a person who has not been

 11  a resident of the state for more than thirty days to the privileges that

 12  the holder would have if the holder held separately a non-resident hunt-

 13  ing license, a non-resident fishing license,  a  non-resident  big  game

 14  license,  a non-resident bowhunting  and  license a non-resident muzzle-

 15  loading license , except that only one bear may be taken and a non-resi-

 16  dent turkey permit.

 17    § 17. Section 11-0701 of the environmental conservation law is amended

 18  by adding two new subdivisions 16 and 17 to read as follows:

 19    16. A conservation legacy license entitles the holder  to  fish,  hunt

 20  wildlife,  hunt  big  game  with  a longbow and a muzzle-loading firearm

 21  during special seasons therefor, hunt turkey, enjoy the  benefits  of  a

 22  voluntary habitat stamp and receive the "New York State Conservationist"

 23  magazine  as  if  the  holder of such license held separately a resident

 24  super-sportsman license, a voluntary habitat stamp and a subscription to

 25  the "New York State Conservationist" magazine.

 26    17. A conservation patron license entitles the holder to the  benefits

 27  of  a  voluntary  habitat  stamp  and  a subscription to "New York State

 28  Conservationist" magazine as if the holder of such  license  held  sepa-

                                        215                        12021-01-1

  1  rately  a  voluntary  habitat  stamp and a subscription to the "New York

  2  State Conservationist" magazine.

  3    §  18.  Subdivisions  1  and 2 of section 11-0702 of the environmental

  4  conservation law, subdivision 1 as amended by chapter 57 of the laws  of

  5  1993, paragraph a of subdivision 1 as amended by chapter 245 of the laws

  6  of  1995  and subdivision 2 as added by chapter 352 of the laws of 1987,

  7  are amended to read as follows:

  8    1. There are hereby created the following lifetime  hunting,  fishing,

  9  trapping,  archery  and  muzzle-loading  licenses   and  fees  therefor 

 10  subject to the same privileges and obligations  of  a  comparable  short

 11  term license:

 12                Licenses                                Fees 

 13         a. Lifetime  resident combined

 14            hunting, fishing and big game 

 15            sportsman license and turkey permit.

 16             If purchased, for a

 17            child four years of age or younger        $250.00

 18            for a child age five through

 19            eleven years of age                       $350.00

 20            for a person age twelve through

 21            sixty-four years of age                   $500.00

 22            for a person age sixty-five

 23            and over.                                 $ 50.00 

                                        216                        12021-01-1

  1         b. Lifetime  resident hunting 

  2            small and big game license.               $250.00 

  3         c. Lifetime  resident  fishing

  4            license.                                  $250.00 

  5         d. Lifetime  resident  trapping

  6            license.                                  $250.00 

  7         e. Lifetime  resident  archery

  8            stamp.                                    $125.00 

  9         f. Lifetime  resident  muzzle-

 10            loading stamp.                            $125.00 

 11         g. Lifetime resident big game hunting

 12            license.                                  $250.00 

 13    The  holder  of  a  lifetime   resident  hunting,   small and big game

 14  license or fishing license may, at any time, convert such license  to  a

 15  lifetime   resident  combined  hunting,  fishing and big game  sportsman

 16  license and turkey permit for an additional fee equal  to  the  existing

 17  differential.

 18    2.  Legal  residency within the state of New York shall be a prerequi-

 19  site for persons to obtain, or have  obtained  for  them,  any  lifetime

 20  licenses  included  within this section.   Lifetime licenses so obtained

 21  shall continue to be valid for use within the state  by  the  person  to

 22  whom the lifetime license was issued, regardless of a change in residen-

                                        217                        12021-01-1

  1  cy  of that lifetime license holder.  Holders of lifetime licenses which

  2  include lifetime big game privileges who  become  non-residents  of  the

  3  state  may  continue  to  obtain  resident bowhunting and muzzle-loading

  4  stamps, including lifetime archery and muzzle-loading stamps. Holders of

  5  lifetime licenses which include bowhunting and muzzle-loading privileges

  6  who  become  non-residents  of the state may continue to obtain resident

  7  big game privileges, including lifetime sportsman or small and big  game

  8  licenses.   An annual turkey permit will be granted at no additional fee

  9  as an additional privilege of all existing lifetime sportsman  licenses.

 10  Possession of lifetime licenses is nontransferable.

 11    §  19.  Paragraphs  c and e of subdivision 3 of section 11-0702 of the

 12  environmental conservation law, as added by chapter 352 of the  laws  of

 13  1987  and  such  subdivision as renumbered by chapter 626 of the laws of

 14  1988, are amended to read as follows:

 15    c. (i) for the replacement of a lost license upon application  with  a

 16  notarized  affidavit and a fee of five dollars ; (ii) for individualized

 17  selection, up to six digits, of a lifetime license serial number for  an

 18  additional   fee   of  five  dollars;  and  (iii)   and  (ii)  for  gift

 19  inscriptions, up to twenty-three characters, on lifetime licenses for an

 20  additional fee of five dollars;

 21    e. that lifetime license fees  shall  be  set  by  regulation  of  the

 22  department  and  shall  be  increased  only  when  short  term or annual

 23  licenses are increased and shall be increased  at  the  same  percentage

 24  level and that such increases shall not be retroactive.

 25    §  20. Subdivision 2 of section 11-0703 of the environmental conserva-

 26  tion law, as amended by chapter 57 of the laws of 1993,  is  amended  to

 27  read as follows:

                                        218                        12021-01-1

  1    2.  No  license, permit, tag or stamp is transferable. No person shall

  2  alter, change, lend to another or attempt to  transfer  to  another  any

  3  license or any button, permit, tag or stamp issued therewith. No person,

  4  while  hunting,  shall  possess  a license, button, permit, tag or stamp

  5  which  was  issued  to another person unless actually accompanied by the

  6  person to whom such license, button, permit, tag or stamp was issued. No

  7  person shall purchase, possess or use  more  than  one  junior  archery,

  8  junior small and big game, small and big game, big game,  combined resi-

  9  dent  hunting, fishing and big game  bowhunting, muzzle-loading, sports-

 10  man, or resident super-sportsman license or stamp, non-resident bowhunt-

 11  ing  or  muzzle-loading  license,   combined    non-resident    hunting,

 12  fishing,   big  game,  bowhunting  and  muzzle-loading   super-sportsman

 13  license, non-resident bear tag or special permit for the current license

 14  year, except as permitted by  rule or  regulation of the department.

 15    § 21. Subdivision 4 of section 11-0703 of the environmental  conserva-

 16  tion  law,  as amended by chapter 450 of the laws of 1991, paragraphs a,

 17  b, c, and d as amended by chapter 57 of the laws of 1993 and paragraph e

 18  as relettered by chapter 470 of the laws of 1994, is amended to read  as

 19  follows:

 20    4.  a.  Five-day  Non-resident fishing  licenses, combined , non-resi-

 21  dent  hunting, fishing,  big game,  bowhunting and muzzle-loading   non-

 22  resident  super-sportsman,  non-resident  bowhunting  or  muzzle-loading

 23   and , or non-resident trapping licenses   and ,  or  non-resident  bear

 24  tags  are issuable only to non-residents and persons who have been resi-

 25  dents for less than thirty days immediately preceding the date of appli-

 26  cation.

 27    b. A person under the age of  fourteen  years  is  ineligible  for   a

 28  junior  archery license  any license which authorizes the holder to hunt

                                        219                        12021-01-1

  1  big game.  A person under the age of sixteen years is ineligible  for  a

  2  small  and big game  license ,  a combined resident hunting, fishing and

  3  big game license   sportsman  or  resident  super-sportsman,   combined 

  4  non-resident   hunting,  fishing, big game, bowhunting, and muzzle-load-

  5  ing  super-sportsman, non-resident big game,  or  non-resident  bowhunt-

  6  ing ,  non-resident   or  muzzle-loading  license, or  a  muzzle-loading

  7   stamp  or  a  bowhunting stamp. A person is ineligible for  a  hunting,

  8  small  and  big  game, junior small game, junior small and big game, big

  9  game, junior archery,  combined resident hunting, fishing and big  game 

 10  sportsman  and  resident super-sportsman,  combined  non-resident  hunt-

 11  ing, fishing, big game, bowhunting and muzzle-loading   super-sportsman,

 12  or  non-resident  bowhunting  or   non-resident   muzzle-loading license

 13  unless  he  such person meets the requirements of subdivision  6   3  of

 14  section 11-0713 of this article.

 15    c.  Only  the following persons are eligible for  a combined  resident

 16   hunting, fishing and big game license  licenses: (1) persons  who  have

 17  been  residents  in  the  state  for  more  than thirty days immediately

 18  preceding the date of application for the licenses, or who are  enrolled

 19  in  a  full-time  course at a college or university within the state and

 20  who are in residence in the state for the school year, or who are out of

 21  state or foreign exchange high school students enrolled in  a  full-time

 22  course in a high school within the state and who are in residence in the

 23  state  for  the  school year; (2) Indian residents or members of the six

 24  nations residing on any reservation wholly or partly within  the  state;

 25  (3)  members  of  the  United  States  armed  forces  in active service,

 26  stationed in this state, regardless of the place  of  residence  at  the

 27  time  of entry into the service; and (4) persons privileged under subdi-

                                        220                        12021-01-1

  1  vision 5 of section 11-0707 of this article to take wildlife, other than

  2  deer and bear, as if they held hunting licenses.

  3    d.  Only  persons  who possess a  resident  small and big game license

  4   or , the big game license portion of the combination free  hunting-big 

  5  small and big game hunting-fishing license, or   the  combined  resident

  6  hunting,  fishing  and big game  a sportsman or resident super-sportsman

  7  license are eligible for a  bowhunting   stamp   or   a   muzzle-loading

  8  stamp.

  9    e.  A  person under the age of twelve years is ineligible for a junior

 10   hunting  small game license.

 11    § 22. Paragraph a of subdivision 5 of section 11-0703 of the  environ-

 12  mental  conservation law, as amended by chapter 237 of the laws of 1993,

 13  is amended to read as follows:

 14    a. One-day , three-day   and   five-day   seven-day  fishing  licenses

 15  expire on the date stated on them.

 16    § 23. Paragraphs a, b and c of subdivision 6 of section 11-0703 of the

 17  environmental  conservation  law,  as added by chapter 57 of the laws of

 18  1993 and subparagraph 4 of paragraph a as renumbered by chapter  470  of

 19  the laws of 1994, are amended to read as follows:

 20    a.  Except  as provided in section 11-0707 and section 11-0709 of this

 21  article, no person shall (1) hunt wildlife, other than deer or bear,  or

 22  take  fish with a gun, unless such person holds and is entitled to exer-

 23  cise the privileges of a hunting, junior small game,  junior  small  and

 24  big  game,  small and big game, combination free  hunting-big  small and

 25  big game hunting-fishing  license ,  a combined resident hunting,  fish-

 26  ing  and  big game license  sportsman or resident super-sportsman, or  a

 27  combined  non-resident   hunting,  fishing,  big  game,  bowhunting  and

 28  muzzle-loading   super-sportsman  license; (2) hunt antlerless deer in a

                                        221                        12021-01-1

  1  special open season  therefor  pursuant  to  subdivision  6  of  section

  2  11-0903  of  this  article  unless  such person holds and is entitled to

  3  exercise the privileges of and has on his or her person while so hunting

  4   both   a  small and big game, big game  or , junior small and big game,

  5  junior archery  license or , combination free  hunting-big  game   small

  6  and big game hunting-fishing  license ,  or a combined resident hunting,

  7  fishing  and  big game license  sportsman,  or combined  resident super-

  8  sportsman, non-resident  hunting,  fishing,  big  game,  bowhunting  and

  9  muzzle-loading   super-sportsman  or  non-resident bowhunting or muzzle-

 10  loading license, and a special antlerless deer license; (3) take fish or

 11  frogs in the manner described in subdivision 4  of  section  11-0701  of

 12  this  article  unless such person is entitled to exercise the privileges

 13  of a fishing license; (4) trap wildlife unless such person holds a trap-

 14  ping license.

 15    b. Except as provided in section 11-0707 and section 11-0709  of  this

 16  article, no resident shall (1) hunt wild deer or bear unless such person

 17  holds  and  is  entitled  to  exercise the privileges of a small and big

 18  game, junior archery  or , junior small and big game,  combination  free

 19   hunting-big   small  and  big  game  hunting-fishing   license ,   or a

 20  combined resident hunting, fishing and big game  sportsman, or  resident

 21  super-sportsman  license,  and meets the requirements of  subdivisions 2

 22  and 3 of section 11-0701 or subdivision 2 or 4 of section 11-0715   this

 23  article;  (2) hunt wild deer or bear with a longbow in a special longbow

 24  season unless such person holds and is entitled to exercise  the  privi-

 25  leges  of  a small and big game  license or , junior small and big game,

 26  junior archery, combination free  hunting-big game  small and  big  game

 27  hunting-fishing   license ,  or a combined resident hunting, fishing and

 28  big game  sportsman, or resident super-sportsman license with a bowhunt-

                                        222                        12021-01-1

  1  ing stamp affixed  or junior archery license  and meets the requirements

  2  of  subdivisions 2 and 3 of section 11-0701 or subdivision  2  or  4  of

  3  section  11-0715   this  article;  or  (3) hunt wild deer or bear with a

  4  muzzle-loading firearm in a special muzzle-loading firearm season unless

  5  such  person holds a small and big game,  or  combination free  hunting-

  6  big  small and big game hunting-fishing  license or a combined  resident

  7  hunting,  fishing  and  big  game ,  sportsman, resident super-sportsman

  8  license with a muzzle-loading stamp affixed, or  junior  small  and  big

  9  game  license  and  meets  the requirements of  subdivision 2 of section

 10  11-0701  this article.

 11    c. Except as provided in section 11-0707 and section 11-0709, no  non-

 12  resident  shall (1) hunt wild deer unless such person holds and is enti-

 13  tled to exercise the privileges  of  a  big  game,  junior  archery,   a

 14  combined  junior small and big game, non-resident  hunting, fishing, big

 15  game, bowhunting and muzzle-loading license  super-sportsman, or non-re-

 16  sident  bowhunting   license   or  non-resident  muzzle-loading license;

 17  (2) hunt wild deer with a longbow in a  special  longbow  season  unless

 18  such  person  holds  and  is  entitled  to  exercise the privileges of a

 19   combined  non-resident  hunting,  fishing,  big  game,  bowhunting  and

 20  muzzle-loading license  super-sportsman, non-resident bowhunting, or  a 

 21  junior archery license; (3) hunt wild deer with a muzzle-loading firearm

 22  in  a  special  muzzle-loading firearm season unless such person holds a

 23   combined  junior small and big game,  non-resident   hunting,  fishing,

 24  big  game  bowhunting and muzzle-loading license  super-sportsman or  a 

 25  non-resident muzzle-loading license; (4)  hunt  wild  bear  unless  such

 26  person holds a junior archery or junior small and big game, license or a

 27  non-resident  bear  tag in combination with one of the non-resident deer

 28  licenses listed in subparagraph 1, 2 or 3 of this paragraph.

                                        223                        12021-01-1

  1    § 24. Paragraphs a, b and d of subdivision 2 of section 11-0705 of the

  2  environmental conservation law, paragraphs a and b as amended by chapter

  3  57 of the laws of 1993 and paragraph d as amended by chapter 209 of  the

  4  laws of 1980, are amended to read as follows:

  5    a.  Holders of a  hunting, junior hunting, combined non-resident hunt-

  6  ing, fishing, big game, bowhunting and muzzle-loading, combination  free

  7  hunting-big  game  hunting-fishing license or combined resident hunting,

  8  fishing and big game  license, which authorizes the holder to hunt wild-

  9  life other than big game while exercising the privileges of  a  hunting 

 10  such  license,  shall  have  the   hunting license  back tag issued with

 11  their license attached to and displayed on the back of the outer garment

 12  between the shoulders in such manner that all figures are plainly  visi-

 13  ble at all times.

 14    b.  Holders of a  big game, combination free hunting-big game hunting-

 15  fishing, combined resident hunting, fishing and big game, combined  non-

 16  resident  hunting,  fishing,  big  game,  bowhunting and muzzle-loading,

 17  non-resident bowhunting or muzzle-loading  or  junior  archery   license

 18  which authorizes the holder to hunt big game, while hunting wild deer or

 19  bear,  shall have the  big game, combination free hunting-big game hunt-

 20  ing-fishing or junior archery license  back tag issued with  their   big

 21  game,  combination free hunting-big game hunting-fishing, combined resi-

 22  dent hunting, fishing and big game, combined non-resident hunting, fish-

 23  ing, big game, bowhunting and muzzle-loading, non-resident bowhunting or

 24  muzzle-loading or junior archery  license so attached and displayed.

 25    d. Notwithstanding the provisions of paragraphs a, b  and  c  of  this

 26  subdivision, a  hunting  license holder shall not be required to display

 27  such license tag in the Northern Zone or the Catskill Park.

                                        224                        12021-01-1

  1    §  25. Subdivision 2 of section 11-0709 of the environmental conserva-

  2  tion law is amended to read as follows:

  3    2.  Whenever  taking of destructive or menacing wildlife is authorized

  4  in section 11-0523 of this article,  such  taking  is  exempt  from  the

  5  requirement  of  a  hunting, big game or trapping  license which author-

  6  izes the holder to hunt wildlife or trap, unless the provision authoriz-

  7  ing such taking specifies that such license is required.

  8    § 26. Subdivision 2 of section 11-0713 of the environmental  conserva-

  9  tion  law,  as  amended by chapter 450 of the laws of 1991 and as renum-

 10  bered by section 5 of part D of chapter 61  of  the  laws  of  2000,  is

 11  amended to read as follows:

 12    2.  The  issuing  officer  shall  not issue a junior archery or junior

 13  small and big game license to a person between the ages of fourteen  and

 14  sixteen or a junior  hunting  small game license to a person between the

 15  ages of twelve and  sixteen, years  thirteen unless at the time of issu-

 16  ance  applicant is accompanied by his parent or legal guardian who shall

 17  consent to the issuance of the license and shall so signify  by  signing

 18  his  name  in ink across the face of it. At no time shall  hunting  such

 19  licenses be issued by mail to persons between the  ages  of  twelve  and

 20  sixteen years.

 21    §  27. Paragraphs a, b, c and d of subdivision 3 of section 11-0713 of

 22  the environmental conservation law, as amended by  chapter  450  of  the

 23  laws  of  1991 and such subdivision as renumbered by section 5 of part D

 24  of chapter 61 of the laws of 2000, paragraph a, subparagraph 1 of  para-

 25  graph  b  and paragraphs c and d as amended by chapter 57 of the laws of

 26  1993, are amended to read as follows:

 27    a. Subject to the provisions of paragraphs b and c  of  this  subdivi-

 28  sion,  the  issuing officer shall not issue a  hunting, combination free

                                        225                        12021-01-1

  1  hunting-big game hunting-fishing, combined resident hunting, fishing and

  2  big game, big game, junior hunting, junior archery,  combined  non-resi-

  3  dent  hunting, fishing, big game, bowhunting and muzzle-loading, non-re-

  4  sident  bowhunting,  non-resident  muzzle-loading or trapping license or

  5  bowhunting stamp or muzzle-loading stamp  license, stamp,  tag,  button,

  6  permit,  or permit application which authorizes the holder to hunt wild-

  7  life, to any person unless the applicant presents:

  8    (1) a  hunting, five-day hunting, combined hunting and fishing, combi-

  9  nation free hunting-big game hunting-fishing, combined resident hunting,

 10  fishing and big game, combined small game and big game, big game, junior

 11  archery, junior hunting, combined  non-resident  hunting,  fishing,  big

 12  game,  bowhunting and muzzle-loading, non-resident bowhunting, non-resi-

 13  dent muzzle-loading or trapping  license which authorizes the holder  to

 14  hunt wildlife issued to him previously; or

 15    (2) an affidavit from a license issuing officer stating that applicant

 16  previously  has been issued a  hunting, five-day hunting, combined hunt-

 17  ing and fishing,  combination  free  hunting-big  game  hunting-fishing,

 18  combined resident hunting, fishing and big game, combined small game and

 19  big  game,  big  game,  trapping,  junior hunting, combined non-resident

 20  hunting, fishing, big game, bowhunting and muzzle-loading,  non-resident

 21  bowhunting, non-resident muzzle-loading or junior archery  license which

 22  authorizes the holder to hunt wildlife; or

 23    (3) a certificate of qualification in responsible hunting, responsible

 24  bowhunting  and responsible trapping practices, including safety, ethics

 25  and landowner-hunter relations, issued or  honored  by  the  department,

 26  pursuant to this subdivision.

 27    b.  (1)  The  issuing  officer  shall not issue a  bowhunting stamp or

 28  non-resident bowhunting  or  junior  archery   license  or  stamp  which

                                        226                        12021-01-1

  1  authorizes the holder to exercise the privilege of hunting big game with

  2  a  longbow  to  any  person  unless the applicant presents a  bowhunting

  3  stamp or a non-resident bowhunting or junior archery license   New  York

  4  state license or stamp which authorizes the holder to exercise the priv-

  5  ilege  of  hunting  big  game with a longbow issued in 1980 or later, an

  6  affidavit as provided in subparagraph (2) of paragraph a of this  subdi-

  7  vision or a certificate of qualification in responsible bowhunting prac-

  8  tices issued or honored by the department.

  9    (2)  The  issuing  officer  shall  not issue a trapping license to any

 10  person unless the applicant presents a trapping license  issued  to  him

 11  previously,  an affidavit as provided in subparagraph (2) of paragraph a

 12  of this subdivision or a certificate  of  qualification  in  responsible

 13  trapping practices.

 14    c.  The  issuing officer shall not issue a bowhunting stamp or muzzle-

 15  loading stamp to any resident unless the applicant presents a small  and

 16  big  game,  combination  free   hunting-big  small and big game hunting-

 17  fishing, or  combined resident hunting, fishing and big game   sportsman

 18  or resident super-sportsman license issued to that person for the corre-

 19  sponding license year.

 20    d. Certifications of qualification in responsible hunting, responsible

 21  bowhunting and responsible trapping practices may be made by duly quali-

 22  fied  and designated persons, whose fitness to give instructions in said

 23  practices has been determined by an agent of the department. The depart-

 24  ment may designate any person it deems qualified to act as its agent  in

 25  the  giving  of  instruction  and the making of certification. No charge

 26  shall be made for any certificate or instruction given to  a  person  to

 27  qualify  him  or  her  to  obtain a  hunting, combined resident hunting,

 28  fishing and big game, big game, combined non-resident, hunting, fishing,

                                        227                        12021-01-1

  1  big  game,  bowhunting,  muzzle-loading,  non-resident   bowhunting   or

  2  muzzle-loading,  junior  hunting, junior archery or trapping  license or

  3   bowhunting  stamp other than  for  certain  instruction  and  materials

  4  accredited  by  the department to provide preparation for final instruc-

  5  tion and testing by agents of the department or for  replacement  educa-

  6  tion  certificates  for a commission of one dollar to the issuing agent.

  7  The department shall make available to the public courses without charge

  8  which do not require additional preparation at the expense of  students,

  9  and  may  also offer optional courses which require preparatory instruc-

 10  tion which may be at the expense of the student.    The  department  may

 11  make  rules  and  regulations  which  in its opinion  are calculated to 

 12  effectuate better the purpose of this subdivision.

 13    § 28. Subdivision 4 of section 11-0713 of the environmental  conserva-

 14  tion  law, as amended by chapter 450 of the laws of 1991, paragraph a as

 15  amended by chapter 470 of the laws  of  1994  and  such  subdivision  as

 16  renumbered  by  chapter  61  of  the laws of 2000, is amended to read as

 17  follows:

 18    4. a. A person who has lost  or  accidentally  destroyed  a   hunting,

 19  fishing,  combination  free  hunting-big  game hunting-fishing, combined

 20  resident hunting, fishing and big game, big game, junior archery, junior

 21  hunting, combined non-resident hunting, fishing,  big  game,  bowhunting

 22  and muzzle-loading, non-resident bowhunting, non-resident muzzle-loading

 23  or  trapping   license ,  bowhunting  stamp  or muzzle-loading  or stamp

 24  authorizing the holder to hunt, fish, or trap may apply to  the  officer

 25  who  issued  it  for  a  certificate in lieu thereof. Such officer shall

 26  issue a certificate stating the name and address of the  applicant,  the

 27  type  of  license issued and the fee, if any, paid for it.  Applications

                                        228                        12021-01-1

  1  and certificates furnished by the department  shall  be  used  for  this

  2  purpose.

  3    b.  A  person  who  has lost or accidentally destroyed a button or tag

  4  issued with such a license  or a hunting, junior hunting,  junior  arch-

  5  ery, combination free hunting-big game hunting, combined hunting and big

  6  game,  or  big  game license tag  or stamp may apply to  the department 

  7  any license issuing officer for a duplicate  and  the  department  shall

  8  issue  a  duplicate button or tag when satisfied that the application is

  9  made in good faith. A duplicate combination free  hunting-big  small and

 10  big game hunting-fishing tag shall be issued free of charge.

 11    c. A person who has lost or accidentally destroyed a  deer  management

 12  permit  may  apply  to any license issuing officer for a duplicate. Such

 13  officer shall issue a duplicate tag when satisfied that the  application

 14  is  made in good faith. The officer shall also issue a certificate stat-

 15  ing the name and address of the applicant, the identifying number of the

 16  tag that is being issued and the fee, if any, paid for it.  Applications

 17  and tags furnished by the department shall be used for this purpose.

 18    §  29. Subdivision 1 of section 11-0715 of the environmental conserva-

 19  tion law, is amended to read as follows:

 20    1. When any license or stamp listed in this section is issued  by  the

 21  department  or an officer or employee of the department, the license fee

 22  is the amount specified in this section or regulations of the department

 23  adopted pursuant to this section plus the amount, if any, specified as a

 24  fee to the issuing clerk.

 25    § 30. Subdivision 2 of section 11-0715 of the environmental  conserva-

 26  tion  law,  as amended by chapter 450 of the laws of 1991, is amended to

 27  read as follows:

                                        229                        12021-01-1

  1    2. A resident in the state for thirty days immediately  prior  to  the

  2  date  of  application who has attained the age of seventy is entitled to

  3  receive  a fishing license, a hunting license, a bow  hunting  stamp,  a

  4  muzzle-loading  stamp, a trapping license, a special second deer permit,

  5  a big game hunting license and combination hunting, big game and fishing

  6  license  for  the license year beginning October first, nineteen hundred

  7  ninety-one,  and  annually  thereafter,   all  licenses,  stamps,  tags,

  8  buttons,  and  permits  authorized  by this title for which he or she is

  9  eligible, except turkey permits, renewable each year for a   four   five

 10  dollar   license  fee  and one dollar to the issuing clerk ; a member of

 11  the Shinnecock tribe or the Poospatuck tribe or  a  member  of  the  six

 12  nations,  residing on any reservation wholly or partly within the state,

 13  is entitled to receive free of charge a  fishing  license,  a   hunting 

 14  small  and  big  game  license,  a  muzzle-loading  stamp,   a  big game

 15  license,  a trapping license,  a special second deer permit  and  a  bow

 16  hunting  stamp;  and  a  resident  who is blind is entitled to receive a

 17  fishing license free of charge. For the purposes of this  subdivision  a

 18  person  is  blind only if either: (a) his central visual acuity does not

 19  exceed 20/200 in the better eye with correcting lenses, or (b) his visu-

 20  al acuity is greater than 20/200 but is accompanied by a  limitation  of

 21  the  field  of  vision such that the widest diameter of the visual field

 22  subtends an angle no greater than 20 degrees.

 23    A person entitled to a free license as provided  in  this  subdivision

 24  shall  be  issued  a  combination  free  hunting-big  small and big game

 25  hunting-fishing license renewable each year. Those  free  licensees  not

 26  qualified  to  receive  a  hunting license shall have stamped across the

 27  face thereof "FISHING ONLY", and the issuing  clerk  shall  destroy  the

 28  accompanying back tag for such license.

                                        230                        12021-01-1

  1    A  resident in the state for a period of thirty days immediately prior

  2  to the date of application who has attained the  age  of  sixty-five  is

  3  entitled to receive a  combined hunting, fishing and big game  sportsman

  4  license  at  the  cost  of  four  five dollars as a license fee  and one

  5  dollar to the issuing clerk .

  6    §  31. Subdivision 3 of section 11-0715 of the environmental conserva-

  7  tion law is REPEALED and a  new  subdivision  3  is  added  to  read  as

  8  follows:

  9    3.  Each  applicant  for  a  license, permit or stamp shall pay to the

 10  issuing officer a fee, according to the license, permit or stamp  issued

 11  and the residence or other qualification of the applicant.

 12                                      Fee

 13    Fee  amounts shall be set by regulation of the department. In no event

 14  shall such amounts exceed the amounts recommended  by  the  conservation

 15  fund  advisory  board  pursuant to section 11-0327 of this article. Fees

 16  for the 2001-2002 license year only shall be amounts which do not exceed

 17  the maximum fee amounts recommended by the  conservation  fund  advisory

 18  board  at  a regular meeting held between December 1, 2000 and April 15,

 19  2001.

 20    § 32. Subdivision 4 of section 11-0715 of the environmental  conserva-

 21  tion  law,  as amended by chapter 450 of the laws of 1991, is amended to

 22  read as follows:

 23    4. A person resident in the state for at least thirty days immediately

 24  prior to the date of application, who has been honorably discharged from

 25  service in the armed forces of the United States and certified as having

 26  a forty per cent or greater service-connected disability is entitled  to

 27  receive   a  combination hunting-big game hunting-fishing license, a bow

 28  hunting stamp, a muzzle  loading  stamp  and  a  trapping  license   all

                                        231                        12021-01-1

  1  licenses,  stamps,  tags,  buttons, and permits authorized by this title

  2  for which he or she is eligible, except turkey permits,  renewable  each

  3  year for a  four  five dollar fee  and one dollar to the issuing clerk .

  4    §33.  Subdivision  5 of section 11-0715 of the environmental conserva-

  5  tion law is REPEALED and a  new  subdivision  5  is  added  to  read  as

  6  follows:

  7    5.  a.  License  issuing  officers may retain 1.1 percent of the gross

  8  proceeds from the sale of the following:

  9    (1) non-resident hunting license

 10    (2) non-resident big game license

 11    (3) non-resident trapping license

 12    (4) bear tag

 13    (5) non-resident bowhunting license

 14    (6) non-resident muzzle-loading license

 15    (7) non-resident super-sportsman license

 16    (8) non-resident turkey permit

 17    (9) all lifetime licenses listed in section 11-0702 of this title.

 18    b. License issuing officers  may  retain  5.5  percent  of  the  gross

 19  proceeds  from  sale  of  all  other  licenses, stamps, certificates and

 20  permits, including any application fees associated with  such  licenses,

 21  stamps, certificates and permits.

 22    § 34. The opening paragraph of paragraph a of subdivision 2 of section

 23  11-0719 of the environmental conservation law, as amended by chapter 119

 24  of the laws of 1999, is amended to read as follows:

 25    The  department  may  revoke the  hunting, big game, junior archery or

 26  trapping license or the hunting and big game  hunting  portions  of  the

 27  combination free hunting-big game hunting-fishing license, or any or all

 28  of  them,  or  any  stamp  or tag, and  licenses, tags, and stamps which

                                        232                        12021-01-1

  1  authorize the holder to hunt and/or trap  wildlife,  and  may  deny  the

  2  privilege of obtaining such  license or such portions of the combination

  3  free hunting-big game hunting-fishing license and of hunting or of trap-

  4  ping anywhere in the state,  licenses, tags, and stamps and may deny the

  5  privileges of hunting and/or trapping with or without a license , .

  6    §  35. Subdivision 3 of section 11-0719 of the environmental conserva-

  7  tion law, as amended by chapter 158 of the laws of 1999, is  amended  to

  8  read as follows:

  9    3.  A  junior   hunting   small game license issued to a person who is

 10  between the ages of twelve and  sixteen   fourteen  years  or  a  junior

 11  archery  or  junior small and big game license issued to a person who is

 12  between the ages of fourteen and sixteen years may  be  revoked  by  the

 13  department  upon  proof satisfactory to the department that such person,

 14  while under the age of sixteen, has engaged in hunting wildlife  with  a

 15  gun  or  longbow, in circumstances in which a license is required, while

 16  not accompanied by his parent, guardian or other adult  as  provided  in

 17  either  subdivision  1 or subdivision 3 of section 11-0929 of this arti-

 18  cle. If such license or privilege is revoked the  department  shall  fix

 19  the  period  of such revocation, which is not to exceed four years.  The

 20  department may require that such person successfully complete a  depart-

 21  ment  sponsored  course  and  obtain  a  certificate of qualification in

 22  responsible hunting or responsible  bowhunting  practices  before  being

 23  issued another hunting or bowhunting license.

 24    §  36. Paragraph b of subdivision 7 of section 11-0903 of the environ-

 25  mental conservation law, as amended by chapter 57 of the laws  of  1993,

 26  is amended to read as follows:

 27    b. Deer may be taken only by holders of  big game or combined resident

 28  hunting, fishing and big game or combination free hunting-big game hunt-

                                        233                        12021-01-1

  1  ing-fishing   or  combined  non-resident  hunting,  fishing,  big  game,

  2  bowhunting and muzzle-loading or non-resident bowhunting  and  non-resi-

  3  dent  muzzle-loading  licenses   a license authorizing the taking of big

  4  game  who have also obtained a special permit provided by the department

  5  and issued by the town clerk of each town where such season is fixed;

  6    § 37. Subparagraph 1 of  paragraph  e  of  subdivision  9  of  section

  7  11-0903 of the environmental conservation law, as amended by chapter 911

  8  of the laws of 1990, is amended to read as follows:

  9    (1)  a  requirement that hunting deer during such special season shall

 10  be only by holders of both a  big game  license authorizing  the  taking

 11  of  big  game and a special permit for the area where hunting is permit-

 12  ted , .

 13    § 38. Paragraph a of subdivision 1 of section 11-0907 of the  environ-

 14  mental  conservation law, as amended by chapter 330 of the laws of 1994,

 15  is amended to read as follows:

 16    a. Wild deer without antlers or having  antlers  measuring  less  than

 17  three inches in length shall not be taken unless it is taken (1) by long

 18  bow  in  a  special long bow season established in subdivision 3 of this

 19  section, or (2) by muzzle-loading firearm in  a  special  muzzle-loading

 20  firearm  season  established in subdivision 8 of this section, or (3) by

 21  long bow in Westchester and Suffolk Counties in a year in which a  regu-

 22  lar  season  for deer of either sex is established for such counties, or

 23  (4) in a special open season for deer of either  sex  fixed  by   order 

 24  regulation  pursuant  to  subdivision  5 or 7 of section 11-0903 of this

 25  title, or (5) pursuant to a special antlerless deer license in a special

 26  open season for antlerless deer in a tract within a  Wilderness  Hunting

 27  Area fixed by regulation pursuant to subdivision 6 of section 11-0903 of

 28  this  title,  or  (6)  pursuant  to a deer management permit by a person

                                        234                        12021-01-1

  1  eligible to take such deer  pursuant  thereto  as  provided  in  section

  2  11-0913 of this title, or (7) pursuant to a permit issued to an eligible

  3  non-ambulatory  person,  pursuant  to  subdivision   two   2  of section

  4  11-0931 of this title, while in possession of a valid  big game  license

  5  issued  by  the department which authorizes the holder to hunt big game.

  6  Nothing in this subparagraph shall be construed to limit  the  power  of

  7  the  department to designate by regulation an area or areas of the state

  8  consisting of a county or part of a county where such season shall apply

  9  and whether the number of such special permits shall be limited.

 10    § 39. Paragraph c of subdivision 1 of section 11-0907 of the  environ-

 11  mental  conservation law, as amended by chapter 600 of the laws of 1993,

 12  is amended to read as follows:

 13    c. The limit for wild deer is one deer per person in  a  license  year

 14  except  that  (1)  a  person  entitled  to  exercise the privileges of a

 15  special antlerless deer license may take an antlerless deer while  hunt-

 16  ing  pursuant  to such license in addition to the limit of one deer in a

 17  license year otherwise applicable,  and  (2) a person who is a member of

 18  a hunting group holding a  deer  management  permit  or  permits  issued

 19  pursuant  to  section  11-0913 may take additional deer while hunting in

 20  accordance with the conditions of the permit or permits,  and   (3)  the

 21  holder  of  a bowhunting license or stamp or a muzzle-loading license or

 22  stamp may take up  to  two  additional  deer,  pursuant  to  regulations

 23  promulgated  by  the  department,  and  (4)  an  eligible non-ambulatory

 24  person, pursuant to subdivision  two  2 of section 11-0931 of this chap-

 25  ter may take a deer of either sex in any  deer  wildlife management unit

 26  area where deer management permits have been issued by  the  department,

 27  while  in  possession  of  a valid  big game  license  and a special big

 28  game permit, issued by the department, for a fee of five dollars   which

                                        235                        12021-01-1

  1  authorizes  the  holder  to  hunt  big  game.  Nothing contained in this

  2  section shall be construed to limit  the  power  of  the  department  to

  3  designate  by  regulation  an area or areas of the state consisting of a

  4  county or part of a county where such season shall apply and whether the

  5  number of such special permits shall be limited.

  6    §  40. Paragraph c of subdivision 1 of section 11-0907 of the environ-

  7  mental conservation law, as amended by chapter 911 of the laws  of  1990

  8  and  subparagraph  2  as  amended by chapter 119 of the laws of 1991, is

  9  amended to read as follows:

 10    c. The limit for wild deer and bear is  one  deer  and  one  bear  per

 11  person  in  a license year except that (1) a person entitled to exercise

 12  the privileges of a special antlerless deer license may take an  antler-

 13  less  deer  while  hunting  pursuant  to such license in addition to the

 14  limit of one deer in a license year  otherwise  applicable,  and  (2)  a

 15  person  who  is  a  member  of a hunting group holding a deer management

 16  permit or permits issued pursuant to section 11-0913 may take additional

 17  deer while hunting in accordance with the conditions of  the  permit  or

 18  permits,   and   (3)  the  holder  of a bowhunting license or stamp or a

 19  muzzle-loading license or stamp may take  up  to  two  additional  deer,

 20  pursuant to regulations promulgated by the department, and (4) an eligi-

 21  ble  non-ambulatory  person,  pursuant to subdivision  two  2 of section

 22  11-0931 of this chapter may take a deer of  either  sex  in  any   deer 

 23  wildlife  management  unit  area where deer management permits have been

 24  issued by the department, while in possession  of  a  valid   big  game 

 25  license   and a special big game permit, issued by the department, for a

 26  fee of five dollars  which authorizes the holder to hunt big game. Noth-

 27  ing contained in this section shall be construed to limit the  power  of

 28  the  department to designate by regulation an area or areas of the state

                                        236                        12021-01-1

  1  consisting of a county or part of a county where such season shall apply

  2  and whether the number of such special permits shall be limited.

  3    §  41.  Paragraphs  d and e of subdivision 1 of section 11-0907 of the

  4  environmental conservation law are REPEALED and new paragraphs d  and  e

  5  are added to read as follows:

  6    d. (1) A person who holds licenses or stamps authorizing the holder to

  7  hunt  deer  during  a special archery season and the regular open season

  8  and who has taken a deer by longbow in a special archery season and  who

  9  has  not  taken  a deer in a regular open season may, in addition to the

 10  limit of one deer in a license year otherwise  applicable,  take  during

 11  the  same  license year additional deer as specified by department regu-

 12  lation in a special archery season following the close  of  the  regular

 13  open deer season.

 14    (2)  A  person  who holds licenses or stamps authorizing the holder to

 15  hunt deer during a special archery season and the  regular  open  season

 16  and  who has taken a deer by longbow in the regular open season for deer

 17  in Westchester or Suffolk counties may, in addition to the limit of  one

 18  deer  in  a  license  year  otherwise  applicable,  take during the same

 19  license year additional  deer  as  specified  by  department  regulation

 20  during such Westchester or Suffolk county regular open deer season.

 21    e.  A  person  who  holds licenses or stamps authorizing the holder to

 22  hunt deer during a special muzzle-loading season and  the  regular  open

 23  season  and  who has taken a deer by muzzle-loading firearm in a muzzle-

 24  loading season and who has not taken a deer in  a  regular  open  season

 25  may,  in  addition  to the limit of one deer in a license year otherwise

 26  applicable, take during the same year additional deer  as  specified  by

 27  department  regulation  in a special muzzle-loading season following the

 28  close of the regular deer season.

                                        237                        12021-01-1

  1    § 42. Paragraph a of subdivision 3 of section 11-0907 of the  environ-

  2  mental  conservation law, as amended by chapter 600 of the laws of 1993,

  3  is amended to read as follows:

  4    a.  In  every  area identified in column one of the table set forth in

  5  subdivision 2 of this section, except Westchester and  Suffolk  Counties

  6  in  which  a  regular  open season for taking deer by firearms is estab-

  7  lished and effective, a special open season is  established  for  taking

  8  deer  of  either sex, by the use of a long bow only by holders of a  big

  9  game, combined small game and big game, combined  hunting,  fishing  and

 10  big  game   small and big game, sportsman, or combination free  hunting-

 11  big  small and  big  game  hunting-fishing  license  to  which  a  valid

 12  bowhunting  stamp is affixed or to holders of a junior archery, resident

 13  or non-resident super-sportsman, or non-resident bowhunting license.

 14    § 43. Paragraph a of subdivision 3 of section 11-0907 of the  environ-

 15  mental  conservation law, as amended by chapter 694 of the laws of 1980,

 16  is amended to read as follows:

 17    a. In every area identified in column one of the table  set  forth  in

 18  subdivision  2  of this section, except Westchester and Suffolk Counties

 19  in which a regular open season for taking deer  by  firearms  is  estab-

 20  lished  and  effective,  a special open season is established for taking

 21  deer of either sex, and bear, by the use of a long bow only  by  holders

 22  of  a   big  game,  combined  small game and big game, combined hunting,

 23  fishing and big game  small and big game, sportsman, or combination free

 24   hunting-big  small and big game  hunting-fishing  license  to  which  a

 25  valid  bowhunting  stamp  is  affixed or to holders of a junior archery,

 26  resident or non-resident  super-sportsman,  or  non-resident  bowhunting

 27  license.

                                        238                        12021-01-1

  1    § 44. Paragraph a  of subdivision 5 of section 11-0907 of the environ-

  2  mental  conservation law, as amended by chapter 768 of the laws of 1978,

  3  is amended to read as follows:

  4    a.  In  Monroe  County, the area bounded and described as follows:  On

  5  the west by Route 261 (Manitou Road) beginning at Manitou Beach on  Lake

  6  Ontario  in  the town of Greece and continuing southerly along such road

  7  to its intersection with the Barge Canal,  thence  easterly  along  such

  8  canal  to  East Avenue in the village of Pittsford, thence northeasterly

  9  along East Avenue to Allen Creek in the town of Brighton, thence  north-

 10  erly  along  Allen  Creek  to  Irondequoit Creek, thence northerly along

 11  Irondequoit Creek to Irondequoit Bay, thence northerly along the easter-

 12  ly shore of Irondequoit Bay to Lake Ontario; except that deer of  either

 13  sex  may  be  taken  during the regular and special deer hunting seasons

 14  provided for in this title by the use of a  long bow  longbow by holders

 15  of  a big game license to which a valid bow  hunting  stamp  is  affixed

 16  during the regular and special deer hunting seasons provided for in this

 17  title  licenses which authorize the holder to hunt deer during a special

 18  archery  season  and provided further that this exception permitting the

 19  taking of deer by a  long bow  longbow shall not apply within an area in

 20  the town of Greece bounded and described as follows: On the west by Long

 21  Pond Road beginning at Latta Road and continuing  southerly  along  such

 22  road  to its intersection with Maiden Lane, thence easterly along Maiden

 23  Lane to its intersection with Mt. Read Blvd., thence northerly along Mt.

 24  Read Blvd. to its intersection with Latta Road,  thence  westerly  along

 25  Latta  Road  to  its  intersection  with  Long Pond Road at the point of

 26  beginning.

                                        239                        12021-01-1

  1    § 45. 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  longbow only by holders of  a big game, combined small

  7  game and big game, combined hunting, fishing and big game or combination

  8  free hunting-big game hunting-fishing license to which a valid  bowhunt-

  9  ing  stamp  is  affixed  or  a  junior  archery license,  licenses which

 10  authorize the holders to hunt deer during a special  archery  season  as

 11  follows:  during the special deer season stated in subdivision three and

 12  during the regular season stated in subdivision  two  2 of this section,

 13  deer of either sex may be taken.

 14    § 46. Paragraph a of subdivision 8 of section 11-0907 of the  environ-

 15  mental  conservation law, as amended by chapter 241 of the laws of 1997,

 16  is amended to read as follows:

 17    a. In every area identified in column one of the table  set  forth  in

 18  subdivision  2 of this section, except those areas restricted to special

 19  seasons for taking deer by longbow only, special  open  seasons  may  be

 20  established  by  regulation  for  taking deer and/or bear, by the use of

 21  muzzle-loading firearms, of not less than .44 caliber shooting a  single

 22  projectile, by the holders of a small and big game,  combined small game

 23  and  big  game,  combined hunting, fishing and big game or  sportsman or

 24  combination  free   hunting-big   small  and  big  game  hunting-fishing

 25  license  to  which a valid muzzle-loading stamp is affixed or to holders

 26  of a junior small and big game, resident or  non-resident  super-sports-

 27  man, or non-resident muzzle-loading license.

                                        240                        12021-01-1

  1    §  47. Paragraph b of subdivision 1 of section 11-0913 of the environ-

  2  mental conservation law, as amended by chapter 401 of the laws of  1985,

  3  is amended to read as follows:

  4    b.  In  the issuance of permits, the department may give preference to

  5   state residents  resident license holders and may give preference ,  to

  6  the  extent of not more than 50 per cent of the permits to be issued for

  7  a specified area,  to disabled veterans having  40  percent  or  greater

  8  disability,  and to the applications of groups which include a person or

  9  the spouse of a person, provided that such  spouse  lives  in  the  same

 10  household, who owns at least 50 acres of land in one parcel in the spec-

 11  ified area  and which are postmarked not later than midnight of the last

 12  day  of  the  period  prescribed by department order for making applica-

 13  tion .

 14    § 48. Paragraph d of subdivision 2 of section 11-0913 of the  environ-

 15  mental conservation law is REPEALED and paragraphs e, f and g are renum-

 16  bered paragraphs d, e and f.

 17    §  49. Subdivisions 3, 4 and 7 of section 11-0913 of the environmental

 18  conservation law, as amended by chapter 57 of  the  laws  of  1993,  are

 19  amended to read as follows:

 20    3.  Each  member  of  a group issued a permit pursuant to this section

 21  shall possess a  big game, combined resident hunting,  fishing  and  big

 22  game,  combination  free  hunting-big  game  hunting-fishing  license or

 23  combined  non-resident  hunting,  fishing,  big  game,  bowhunting   and

 24  muzzle-loading license  license which authorizes the holder to hunt deer

 25  during the regular open season before the permit may be validated.

 26    4. During a license year, no person shall use more than one  big game,

 27  combined  resident hunting, fishing and big game, combination free hunt-

 28  ing-big game hunting-fishing license or combined  non-resident  hunting,

                                        241                        12021-01-1

  1  fishing,  big game, bowhunting and muzzle-loading license  license which

  2  authorizes the holder to hunt deer during the  regular  open  season  in

  3  making application for a deer management permit.

  4    7.  The  department  shall charge and receive a fee of ten dollars for

  5  the application and the processing of such permit or  permits.    Appli-

  6  cants who are successful in the computerized selection shall receive the

  7  permit  or  permits  free  of any additional charge. The application fee

  8  shall be non-refundable. The department may waive  the  application  fee

  9  for  holders  of  a   combined  resident  hunting, fishing and big game 

 10  junior archery, junior small and big game,  sportsman,  resident  super-

 11  sportsman,  conservation  legacy license or non-resident super-sportsman

 12  license  or a combined non-resident hunting, fishing, big game, bowhunt-

 13  ing and muzzle-loading license .

 14    § 50. Section  11-0929  of  the  environmental  conservation  law,  as

 15  amended  by  chapter  694  of  the laws of 1980, subdivisions 1 and 3 as

 16  amended by chapter 450 of the laws  of  1991,  is  amended  to  read  as

 17  follows:

 18  § 11-0929. Hunting by minors.

 19    1.  A licensee between the ages of twelve and fourteen years shall not

 20  hunt wildlife with a gun or a longbow unless he or she is accompanied by

 21  his or her parent or legal guardian or relative over the age of  twenty-

 22  one  designated in writing by his or her parent who holds a  hunting, or

 23  combined hunting, fishing and big game or combination  free  hunting-big

 24  game  hunting-fishing  license which authorizes the holder to hunt wild-

 25  life; a licensee between the ages of fourteen and sixteen shall not hunt

 26  wildlife with a gun or longbow unless he or she is accompanied by his or

 27  her parent holding such license, or a person over eighteen years of age,

                                        242                        12021-01-1

  1  designated in writing by his or her parent or  legal  guardian,  holding

  2  such license.

  3    2.  A  licensee under the age of eighteen years who has not previously

  4  had a  big game, combined small game and big game or  combined  hunting,

  5  fishing  and  big  game  license  license which authorizes the holder to

  6  hunt big game issued to him and engaged in hunting pursuant to it  shall

  7  not  hunt  deer or bear unless he or she is accompanied by his parent or

  8  legal guardian, or by a person over eighteen years of age who has had at

  9  least one year's experience in hunting deer or bear, and such accompany-

 10  ing parent, guardian or person holds a  big game,  combined  small  game

 11  and big game, combined hunting, fishing and big game or combination free

 12  hunting-big  game  hunting-fishing license  license which authorizes the

 13  holder to hunt big game.

 14    3. A junior archery licensee, between the ages of fourteen and sixteen

 15  years, shall not hunt deer or bear  unless  he  is  accompanied  by  his

 16  parent  or legal guardian, or by a person over eighteen years of age who

 17  has had at least one year's experience in hunting deer or bear by  long-

 18  bow, and such accompanying parent, guardian or person holds a  big game,

 19  combined  hunting,  fishing and big game or combination free hunting-big

 20  game hunting-fishing license with a bowhunting  stamp  affixed   license

 21  which  authorizes  the  holder to hunt big game during a special archery

 22  season and the regular open season.

 23    § 51. Subdivision 2 of section 11-0931 of the environmental  conserva-

 24  tion law is amended to read as follows:

 25    2.  No  firearm  except  a  pistol  or  revolver  shall  be carried or

 26  possessed in or on a motor vehicle unless it is  unloaded  in  both  the

 27  chamber  and  the  magazine,  except  that a loaded firearm which may be

 28  legally used for taking migratory game birds may be carried or possessed

                                        243                        12021-01-1

  1  in a motorboat while being legally used in hunting migratory game birds,

  2  and no person except a law enforcement officer in the performance of his

  3  official duties shall, while in or on a motor vehicle, use a  jacklight,

  4  spotlight  or  other artificial light upon lands inhabited by deer if he

  5  is in possession or is accompanied by a person who is in possession,  at

  6  the  time  of  such use, of a longbow, crossbow or a firearm of any kind

  7  except a pistol or revolver, unless such longbow  is  unstrung  or  such

  8  firearm  is  taken  down or securely fastened in a case or locked in the

  9  trunk of the vehicle.  For purposes of this subdivision,  motor  vehicle

 10  shall  mean  every  vehicle  or other device operated by any power other

 11  than muscle power, and which shall include but not be limited to automo-

 12  biles, trucks, motorcycles, tractors, trailers and  motorboats,  snowmo-

 13  biles  and  snowtravelers,  whether  operated on or off public highways.

 14  Notwithstanding the provisions of this subdivision, the  department  may

 15  issue  a permit to any person who is non-ambulatory, except with the use

 16  of a mechanized aid, to possess a loaded firearm in or on a motor  vehi-

 17  cle  as  defined  in  this  section, subject to such restrictions as the

 18  department may deem necessary in the interest of public safety, and  for

 19  a  fee  of five dollars.  Nothing in this section permits the possession

 20  of a pistol or a revolver contrary to the Penal Law.

 21    § 52. Section  11-1003  of  the  environmental  conservation  law,  as

 22  amended  by  chapter  325  of  the  laws  of 1989, is amended to read as

 23  follows:

 24  § 11-1003. Falconry license.

 25    Any resident of this state may  be  issued  a  falconry  license.  The

 26  department  shall  prescribe  and furnish forms for application for such

 27  license. The fee for the  license  shall  be  twenty  dollars.  Falconry

 28  licenses  shall  expire  on  December  31 every second year and shall be

                                        244                        12021-01-1

  1  renewable at the discretion of the department. A falconry license  shall

  2  authorize  the  licensee to obtain, buy, sell, barter, possess and train

  3  raptors for falconry and to engage in falconry, provided  that  no  game

  4  shall  be  taken  or  killed  except during an open season therefor, and

  5  further provided that such  licensee  shall  also  possess  a   hunting,

  6  combined hunting and fishing, combined small game and big game, combined

  7  hunting, fishing and big game or combination free hunting-big game hunt-

  8  ing-fishing  license pursuant to this chapter which authorizes the hold-

  9  er  to  hunt  wildlife. Any non-resident, who legally possesses a raptor

 10  where he or she resides and who may legally engage in falconry where  he

 11  or  she  resides,  may engage in falconry in New York without a falconry

 12  license provided he or she possesses a valid  non-resident  hunting   or

 13  three-day hunting  license.

 14    §  53. Subdivision 4 of section 11-1201 of the environmental conserva-

 15  tion law, as added by chapter 726 of the laws of  1977,  is  amended  to

 16  read as follows:

 17    4.  "License  to hunt", "stamp to hunt", or "permit to hunt" means any

 18  license, permit, or other  privilege  granted   within  the  meaning  of

 19  subdivisions  one,  two-a,  two-b, three, five, or eight of  pursuant to

 20  section 11-0701 of this chapter which  authorizes  the  holder  to  hunt

 21  wildlife.

 22    §  54. Subdivision 3 of section 71-0923 of the environmental conserva-

 23  tion law, as amended by chapter 694 of the laws of 1980, is  amended  to

 24  read as follows:

 25    3.  A  violation  of  subdivision 2 of section 11-0705 of this chapter

 26  shall be punishable by forfeiture of  the  hunting,  three-day  hunting,

 27  combined  hunting  and  fishing,  combined  small  game  and big game or

 28  combined hunting, fishing and big game or combination  free  hunting-big

                                        245                        12021-01-1

  1  game  hunting-fishing  license,  or of the big game license, as the case

  2  may be, and of the hunting license tag or big game license tag  licenses

  3  and tags issued pursuant to this chapter which authorize the  holder  to

  4  hunt wildlife and by a fine of not more than twenty-five dollars.

  5    §  55.  Section 83 of the state finance law is amended by adding a new

  6  subdivision (h) to read as follows:

  7    (h) All moneys, revenues and interest thereon received as a result  of

  8  the application of subdivision seventeen of section 11-0305 of the envi-

  9  ronmental  conservation  law authorizing the issuance and sale of volun-

 10  tary habitat stamps, other than the amount retained by the issuing agent

 11  or officer, shall be deposited in a special account within the conserva-

 12  tion fund to be known as the habitat account. All of such moneys, reven-

 13  ues and interest shall be available to the department  of  environmental

 14  conservation,  pursuant to appropriation, exclusively for fish and wild-

 15  life habitat management and the improvement and  development  of  public

 16  access for hunting, fishing, trapping and other fish and wildlife-relat-

 17  ed recreation and study.

 18    § 56. This act shall take effect on October 1, 2001, provided that any

 19  regulations  necessary  for the timely implementation of this act on its

 20  effective date  may  be  promulgated  before  such  date  and  provided,

 21  further, that regulations adopted to implement the provisions of section

 22  thirty-one  of this act, adopted in the year in which this act becomes a

 23  law, shall be adopted pursuant to the emergency adoption procedures  set

 24  forth in subdivision 6 of section 202 of the state administrative proce-

 25  dure  act;  provided that the amendments to paragraph c of subdivision 1

 26  of section 11-0907 of the environmental conservation law made by section

 27  thirty-nine of this act shall be subject to the expiration and reversion

 28  of such paragraph pursuant to section 13 of chapter 600 of the  laws  of

                                        246                        12021-01-1

  1  1993, as amended, when upon such date the provisions of section forty of

  2  this  act  shall  take effect; provided, further, that the amendments to

  3  paragraph a of subdivision 3 of section  11-0907  of  the  environmental

  4  conservation  law made by section forty-two of this act shall be subject

  5  to the expiration and reversion of such paragraph pursuant to section 13

  6  of chapter 600 of the laws of 1993, as amended, when upon such date  the

  7  provisions of section forty-three of this act shall take effect.

  8                                   PART F

  9    Section  1.  Subdivision  14  of  section 13-0309 of the environmental

 10  conservation law, as amended by section 1 of part C of chapter 61 of the

 11  laws of 2000, is amended to read as follows:

 12    14. The department , until January first, two thousand two   shall  be

 13  entitled to collect fifteen cents per bushel of surf clams and ten cents

 14  per bushel of ocean quahogs taken from all certified waters to be depos-

 15  ited in the surf clam/ocean quahog account as provided in section eight-

 16  y-three of the state finance law.

 17    § 2. This act shall take effect immediately.

 18                                   PART G

 19    Section  1.  The  real  property  tax  law  is amended by adding a new

 20  section 480-b to read as follows:

 21    § 480-b. State reimbursement for forest tax exemptions. 1.  A  county,

 22  town  or  school district containing eligible private forest lands shall

 23  be eligible for state reimbursement as provided by this  section.    For

 24  purposes  of this section, "eligible private forest lands" means private

                                        247                        12021-01-1

  1  forest tracts receiving an exemption pursuant to  section  four  hundred

  2  eighty or four hundred eighty-a of this title, excluding any tract which

  3  is or had been a certified tract on which penalties are imposed pursuant

  4  to section four hundred eighty or four hundred eighty-a of this title.

  5    2.  The  county  treasurer  of  any county containing eligible private

  6  forest lands shall submit to the state board a list of  any  changes  to

  7  the  assessed  value,  taxable  status or acreage of all such lands made

  8  subsequent to the filing of those assessment  rolls  upon  which  county

  9  taxes  are  extended, and the county tax rate and town tax rate extended

 10  against any parcel receiving one of those exemptions.

 11    3. The business manager of any  school  district  containing  eligible

 12  private  forest  lands  shall  submit  to  the state board a list of any

 13  changes to the assessed value, taxable status or  acreage  of  all  such

 14  lands made subsequent to the filing of those assessment rolls upon which

 15  school  taxes are extended, and the school tax rate extended against any

 16  parcel receiving one of those exemptions.

 17    4. The state board shall compute the amount of state assistance  paya-

 18  ble  to  or  for  the  benefit  of  a county, town or school district on

 19  account of eligible private forest lands.

 20    5. (a) The amount of state assistance paid to a county, town or school

 21  district pursuant to this section shall equal the taxes which would have

 22  been levied for county,  town  or  school  district  purposes  upon  the

 23  assessed  valuation  partially  exempt from taxation on the latest final

 24  assessment roll of the eligible private forest lands, minus one  percent

 25  of  the total real property tax levy for county, town or school district

 26  purposes for the current year, provided that the amount payable  to  any

 27  county,  town  or  school  district  pursuant  to this section shall not

                                        248                        12021-01-1

  1  exceed the maximum payment prescribed by paragraph (b) of this  subdivi-

  2  sion.

  3    (b)  The maximum payment to a county, town or school district pursuant

  4  to this section shall be determined as follows:

  5    (i) Multiply the total acreage of the eligible private forest lands in

  6  the county, town or school district on the latest final assessment  roll

  7  by  the  average  forest land value per acre, as determined by the state

  8  board based on sales of forest parcels of at least fifty acres  through-

  9  out the region;

 10    (ii)  Multiply  the result by the full value tax rate for county, town

 11  or school district purposes for the current year; and

 12    (iii) Subtract from the product one percent of the total real property

 13  tax levy for county, town or school district purposes  for  the  current

 14  year.

 15    6.  The  state board shall certify to the state comptroller the amount

 16  of state assistance payable pursuant to this section, and shall  mail  a

 17  copy  of  such  certification to the county treasurer of each county and

 18  business manager of each school  district  containing  eligible  private

 19  forest  tracts. Such state assistance shall be paid on audit and warrant

 20  of the comptroller out of monies appropriated  by  the  legislature  for

 21  state  assistance  to  counties,  towns  and school districts containing

 22  eligible private forest tracts.

 23    7. If it should appear to the state board that an error  was  made  in

 24  the calculation of state assistance pursuant to subdivision five of this

 25  section  and  as  a  result  of  that error an incorrect amount of state

 26  assistance was paid to a county, town  or  school  district,  the  state

 27  board shall determine the difference between the assistance paid and the

 28  assistance  that  should  have been paid and shall adjust the next state

                                        249                        12021-01-1

  1  assistance certified for such county, town or school  district  by  that

  2  difference.

  3    §  2.  This  act  shall  take  effect immediately, provided that state

  4  assistance payments made pursuant to section 480-b of the real  property

  5  tax  law,  as  added by section one of this act, shall be limited to the

  6  amounts appropriated by the legislature for this purpose, and  shall  be

  7  submitted based upon the assessment rolls with final completion dates on

  8  or after July 1, 2001.

  9                                   PART H

 10    Section 1. Section 21.07 of the parks, recreation and historic preser-

 11  vation law, as amended by chapter 773 of the laws of 1992, is amended to

 12  read as follows:

 13    §  21.07  Fee for snowmobile trail development and maintenance.  A fee

 14  of  ten  twenty dollars is hereby imposed upon the resident, and   twen-

 15  ty   thirty  dollars upon the nonresident, owner of a snowmobile for the

 16  snowmobile trail development and maintenance fund  to  be  paid  to  the

 17  commissioner of motor vehicles upon the registration thereof in addition

 18  to  the  registration  fee  required by the vehicle and traffic law, the

 19  payment of which fee hereby imposed shall be a  condition  precedent  to

 20  such individual resident, individual nonresident or dealer registration.

 21    §  2.   Subdivisions 2 and 3 of section 27.17 of the parks, recreation

 22  and historic preservation law, as amended by chapter 88 of the  laws  of

 23  1988, are amended to read as follows:

 24    2.  Notwithstanding  any  other  provision of law to the contrary, the

 25  commissioner shall establish a plan for the development and  maintenance

 26  of  snowmobile  trails  and  facilities in the various counties or where

                                        250                        12021-01-1

  1  applicable, cities, towns or villages of the state as may be appropriate

  2  and shall take whatever action he or she deems necessary to  foster  and

  3  promote  the  safe  utilization of such trails and facilities; for these

  4  purposes, he or she may draw upon the moneys deposited in the snowmobile

  5  trail  development and maintenance fund for expenses, including personal

  6  services, as approved by the comptroller and  is  hereby  authorized  to

  7  assign   two   three  employees  of  his or her office to carry out such

  8  responsibilities and to pay their salaries, benefits and expenses out of

  9  such fund.

 10    3. Every county or, where applicable, any city, town or village within

 11  such county, shall be eligible for a grant for the development and main-

 12  tenance of a system of snowmobile trails and  a  program  with  relation

 13  thereto  within its boundaries. Such grants shall be made by the commis-

 14  sioner and may constitute up to one hundred percent of the cost of  such

 15  program including expenditures incurred for signs and markers of snowmo-

 16  bile  trails. Any county or, where applicable, any city, town or village

 17  within such county, applying for such grant shall submit to the  commis-

 18  sioner  by September first of each year an estimate of such expenditures

 19  for the current fiscal year, in such form and containing  such  informa-

 20  tion  as  the  commissioner  may require.   No city, town or village may

 21  apply for such grant where the county within which it is  contained  has

 22  submitted  an  application for the same fiscal year.  For the purpose of

 23  this section, "fiscal year" shall  mean  the  period  from  April  first

 24  through  March  thirty-first.  The  commissioner  shall  review all such

 25  applications and shall determine the amount of state aid to be allocated

 26  to each county or, where applicable, any city, town  or  village  within

 27  such  county  in  accordance  with the provisions of subdivision five of

 28  this section.  Of the amount the commissioner determines each county or,

                                        251                        12021-01-1

  1  where applicable, any city, town or village within such county is eligi-

  2  ble to receive, seventy percent shall be made available for distribution

  3  by November first and thirty percent for distribution upon demonstration

  4  of completion, submitted by June first, of the program.

  5    §  3. Subdivisions 4-a and 11 of section 2222 of the vehicle and traf-

  6  fic law, subdivision 4-a as amended by chapter 337 of the laws  of  1997

  7  and  subdivision  11  as amended by chapter 773 of the laws of 1992, are

  8  amended to read as follows:

  9    4-a. Additional fee. In addition to the other  fees  provided  for  in

 10  paragraphs  (a),  (b)  and  (c)  of subdivision four of this section the

 11  commissioner shall, upon application in such cases for the  registration

 12  of  a snowmobile or the renewal thereof, collect the annual  ten  twenty

 13  dollar fee for residents and  twenty  thirty dollar fee for nonresidents

 14  imposed by section 21.07 of the parks, recreation and historic preserva-

 15  tion law.  This fee shall also be collected from dealers at the time  of

 16  original registration and at the time of each  biennial  renewal.

 17    11.  Exemption.  No  registrations shall be required for the following

 18  described snowmobiles:

 19    (a) Snowmobiles owned and used by the United States.

 20    (b) Snowmobiles covered by a valid registration or license of  another

 21  state,  province  or  country, as provided in subdivision twelve of this

 22  section.

 23    (c) Snowmobiles operated on lands owned by the owner of  such  snowmo-

 24  bile, or on lands to which such owner has a contractual right other than

 25  as  a member of a club or association provided (i) the snowmobile is not

 26  operated elsewhere within the state, and (ii) no  consideration,  either

 27  direct  or indirect, is paid to the owner of the snowmobile with respect

 28  to such operation.

                                        252                        12021-01-1

  1    § 4. Subdivision 1 of section 2230 of the vehicle and traffic law,  as

  2  added by chapter 839 of the laws of 1973, is amended to read as follows:

  3    1. The commissioner may suspend or revoke a registration issued pursu-

  4  ant  to  the  provisions  of  this article, upon satisfactory proof of a

  5  violation of any provision of this  article,  or  of  the  parks   and ,

  6  recreation  and  historic preservation law at the request of the commis-

  7  sioner of parks  and , recreation and historic preservation, or  of  any

  8  rule,  regulation,  order, local law or ordinance adopted or promulgated

  9  pursuant thereto. Such suspension or revocation  shall  be  issued  only

 10  after  a hearing unless such a hearing is waived by the registrant. Upon

 11  said suspension or revocation, all rights  and  privileges  accruing  to

 12  such registrant shall terminate.

 13    § 5. This act shall take effect on the one hundred twentieth day after

 14  it shall have become a law.

 15                                   PART I

 16    Section  1.  Subdivision  3 of section 2251 of the vehicle and traffic

 17  law, as added by chapter 484 of the laws of 1985, is amended to read  as

 18  follows:

 19    3.  Fees.  The  triennial  fee  for registration of a vessel shall be:

 20   nine  eighteen dollars, if less than sixteen feet in length;  eighteen 

 21  thirty-six dollars, if sixteen feet or over  but  less  than  twenty-six

 22  feet in length;  thirty  sixty dollars, if twenty-six feet or over.

 23    § 2. This act shall take effect on the one hundred twentieth day after

 24  it shall have become a law.

 25                                   PART J

                                        253                        12021-01-1

  1    Section  1.  Subdivisions  3, 4, 5 and 6 of section 47 of chapter 2 of

  2  the laws of 1998, amending the public health law,  the  social  services

  3  law and the insurance law, relating to expanding the child health insur-

  4  ance plan, are amended to read as follows:

  5    3.  section  six  of  this  act  shall  take  effect  January 1, 1999;

  6  provided, however, that subparagraph (iii) of paragraph (c) of  subdivi-

  7  sion  9 of section 2510 of the public health law, as added by this arti-

  8  cle, shall expire  and be deemed repealed on March 31, 2001  on July  1,

  9  2003;

 10    4.  sections  two, three, four, seven, eight, nine, fourteen, fifteen,

 11  sixteen, eighteen, eighteen-a,  twenty-three,  twenty-four,  twenty-five

 12  and  twenty-nine of this act shall take effect January 1, 1999 and shall

 13  expire  and be deemed repealed on March 31, 2001  on July 1, 2003;

 14    5. section twelve of this act  shall  take  effect  January  1,  1999;

 15  provided,  however,  paragraphs  (g) and (h) of subdivision 2 of section

 16  2511 of the public health law, as added by this  section,  shall  expire

 17   and be deemed repealed March 31, 2001  on July 1, 2003;

 18    6.  section  twenty-four-a,  twenty-six  and  twenty-six-a of this act

 19  shall expire  and be deemed repealed March 31, 2001  on July 1, 2003;

 20    § 2. Subdivision 1 of section 211 of chapter 474 of the laws  of  1996

 21  amending the education law and other laws relating to rates for residen-

 22  tial  health care facilities is amended by adding a new paragraph (e) to

 23  read as follows:

 24    (e) Notwithstanding any inconsistent provision of law or regulation to

 25  the contrary, effective for the state fiscal  year  beginning  April  1,

 26  2001, and annually thereafter, the department of health is authorized to

 27  pay  public general hospitals, other than those operated by the state of

 28  New York or the state university of New York, as defined in  subdivision

                                        254                        12021-01-1

  1  10  of  section  2801 of the public health law, located in a city with a

  2  population of over one million, additional payments  pursuant  to  para-

  3  graph  (c)  of this subdivision for inpatient hospital services of up to

  4  113 million dollars annually, as medical assistance pursuant to title 11

  5  of article 5 of the social services law for patients eligible for feder-

  6  al financial participation under title XIX of the federal social securi-

  7  ty  act,  pursuant  to federal laws and regulations governing dispropor-

  8  tionate share payments to hospitals, based on the relative share of each

  9  such non-state operated public general hospital  of  medical  assistance

 10  and uninsured patient losses after all other medical assistance, includ-

 11  ing disproportionate share payments to such general hospitals.

 12    §  3.  Notwithstanding any inconsistent provision of law or regulation

 13  to the contrary, and subject to the availability  of  federal  financial

 14  participation  pursuant to title XIX of the federal social security act,

 15  effective for state fiscal years beginning April 1, 2001, and  April  1,

 16  2002,  the department of health is authorized to make a specialty hospi-

 17  tal adjustment to public general hospitals, as defined in subdivision 10

 18  of section 2801 of the public health law, other than those  operated  by

 19  the  state  of  New  York or the state university of New York, receiving

 20  reimbursement for all inpatient services under title XIX of the  federal

 21  social  security  act  pursuant  to  paragraph  (e)  of subdivision 4 of

 22  section 2807-c of the public health law, and located in a  city  with  a

 23  population  of  over 1 million, of up to two hundred forty-eight million

 24  dollars annually as medical assistance pursuant to title 11 of article 5

 25  of the social services law for patients eligible for  federal  financial

 26  participation  under  title XIX of the federal social security act based

 27  on each such hospital's proportionate share of the sum of all  inpatient

 28  discharges  for  all  facilities  eligible for an adjustment pursuant to

                                        255                        12021-01-1

  1  this section during any annual period. Such proportionate share  payment

  2  may be added to rates of payment or made as aggregate payments to eligi-

  3  ble public general hospitals.

  4    §  3-a.  Notwithstanding  any inconsistent provision of   law or regu-

  5  lation to the contrary, the social services district in which an  eligi-

  6  ble  public  general hospital is physically located shall be responsible

  7  for the payments for such  public  general  hospital  as  determined  in

  8  accordance  with  section  three  of  this act for all hospital services

  9  provided by such public general  hospital  in  accordance  with  section

 10  365-a  of  the  social  services  law, regardless whether another social

 11  services district or the department of health may otherwise be responsi-

 12  ble for furnishing medical assistance to the eligible persons  receiving

 13  such services.

 14    § 3-b. Notwithstanding any inconsistent provision of law or regulation

 15  to  the  contrary, reimbursement by the state for payments made, whether

 16  by the department of health on behalf  of  a  social  services  district

 17  pursuant  to  section  367-b  of  the social services law or by a social

 18  services district directly, for a payment determined in accordance  with

 19  section  three  of  this  act  for  general  hospital inpatient hospital

 20  services provided in accordance with paragraph (b) of subdivision  2  of

 21  section  365-a of the social services law shall be limited to the amount

 22  of federal funds properly received or to be received on account of  such

 23  expenditures.

 24    §  3-c.  Any  amounts  provided  pursuant to section three of this act

 25  shall be effective for  purposes  of  determining  payments  for  public

 26  general  hospitals  contingent  on  receipt of all approvals required by

 27  federal law  or  regulations  for  federal  financial  participation  in

 28  payments  made pursuant to title XIX of the federal social security act.

                                        256                        12021-01-1

  1  If federal approvals are not granted for payments based on such  amounts

  2  or  components  thereof,  payments to public general hospitals shall  be

  3  determined without consideration of such  amounts  or  such  components.

  4  Public  general  hospitals  shall  refund to the state, or the state may

  5  recoup from prospective payments,  any  overpayment  received  including

  6  those based on a retroactive reduction in the payments. Any reduction in

  7  federal  financial  participation  pursuant  to title XIX of the federal

  8  social security act related to federal upper  payment  limits  shall  be

  9  deemed  to  apply first to amounts provided pursuant to section three of

 10  this act.

 11    § 4. 1. Notwithstanding the provisions of paragraph (c) of subdivision

 12  1 of section 366 of the social services law, or any other  provision  of

 13  law,  and subject to federal approval and to the availability of federal

 14  financial participation pursuant to title  XIX  of  the  federal  social

 15  security act, reimbursement shall be made for the federal funds properly

 16  expended  for  the  medical services enumerated in subdivision 2 of this

 17  section that (a) are provided to (i) individuals who  are  residents  of

 18  public  institutions  operated  by  the state department of correctional

 19  services, (ii) individuals who are involuntarily confined or residing in

 20  any correctional facility owned or operated by the New York city depart-

 21  ment of corrections, (iii) individuals who are involuntarily confined or

 22  residing in any correctional facility owned or operated by a  county  or

 23  other  municipality  within a social services district, or (iv) individ-

 24  uals who are involuntarily confined or residing in a correctional facil-

 25  ity operated under a contract with a county, a municipality other than a

 26  county, or the state, (b) so  long  as  the  medical  services  are  not

 27  provided  by  or  in  (i) a facility operated by the state department of

 28  correctional services, (ii) a facility operated by  the  New  York  city

                                        257                        12021-01-1

  1  department of corrections, (iii) a facility located in or on the grounds

  2  of  a correctional facility owned or operated by a county or other muni-

  3  cipality within a social services district, or (iv) a  facility  located

  4  in  a  correctional  facility operated under a contract with a county, a

  5  municipality other than a county, or the state.

  6    2. For the purposes of subdivision 1 of this section, medical services

  7  eligible for reimbursement of federal financial  participation  pursuant

  8  to  title  XIX  of  the  social  security act include only the following

  9  services: (a) inpatient hospital services provided in a general hospital

 10  licensed pursuant to article 28 of the public health  law;  (b)  nursing

 11  care  and health related services provided while in a residential health

 12  care facility licensed pursuant to article 28 of the public health  law;

 13  (c)  inpatient  hospital  services  provided to persons under twenty-one

 14  years of age, while in a residential treatment facility for children and

 15  youth licensed pursuant to article 31 of the  mental  hygiene  law;  (d)

 16  inpatient  hospital  services provided to persons under twenty-one years

 17  of age, while in an acute care psychiatric hospital established pursuant

 18  to article 7 of the mental hygiene law;  and  (e)  residential  services

 19  provided  while  in an intermediate care facility operated by the office

 20  of mental retardation and developmental disabilities pursuant to article

 21  13 of the mental hygiene law or licensed pursuant to article 16  of  the

 22  mental hygiene law.

 23    §  5. 1. Notwithstanding any other provision of law, the department of

 24  health shall review claims for  expenditures  made  in  accordance  with

 25  section  four  of  this  act  by  the  state  department of correctional

 26  services for the services enumerated in subdivision two of section  four

 27  of  this  act provided to individuals who are residents of public insti-

 28  tutions operated by the state department of correctional services or who

                                        258                        12021-01-1

  1  are residents of a correctional facility operated under a contract  with

  2  the  state.  If  approved  by the department of health, payment for such

  3  services which are furnished in accordance with title XIX of the federal

  4  social  security  act  shall  be made by the department of health in the

  5  amount of any federal financial participation properly expended for such

  6  services. The amount of  federal  financial  participation  received  on

  7  account of expenditures for such services shall be credited by the comp-

  8  troller  to  the medical assistance program, general fund/aid to locali-

  9  ties, local assistance account - 001.

 10    2. Claims for payment under this section shall be made  in  such  form

 11  and  manner,  at  such  times, and for such periods as the department of

 12  health may require.

 13    § 5-a. Notwithstanding any other provision of law, and to  the  extent

 14  federal financial participation is available therefor, reimbursement for

 15  payments  made  by  the  office  of mental health for inpatient hospital

 16  services provided in acute care psychiatric hospitals established pursu-

 17  ant to article 7 of the mental hygiene law,  or  the  office  of  mental

 18  retardation  and  developmental  disabilities  for  residential services

 19  provided in intermediate care facilities licensed pursuant to article 16

 20  of the mental hygiene law, to individuals who are  residents  of  public

 21  institutions operated as described in subdivision one of section four of

 22  this  act,  shall  be made only for the amount of federal funds properly

 23  expended for such services.

 24    § 5-b. Notwithstanding any other provision of law, and to  the  extent

 25  federal financial participation is available therefor, reimbursement for

 26  payments made for services enumerated in subdivision two of section four

 27  of  this  act provided to (i) persons involuntarily confined or residing

 28  in public institutions under the  jurisdiction  of  the  New  York  city

                                        259                        12021-01-1

  1  department of corrections, (ii) persons involuntarily confined or resid-

  2  ing  in  a  correctional facility owned or operated by a county or other

  3  municipality within a social services district, or (iii) persons  invol-

  4  untarily  confined or residing in a correctional facility operated under

  5  a contract with a county or a municipality other than a county, shall be

  6  made only for the amount of federal funds  properly  expended  for  such

  7  services.

  8    §  6. Subparagraph 11 of paragraph (a) of subdivision 1 of section 366

  9  of the social services law, as added by section 1 of part E  of  chapter

 10  57 of the laws of 2000, is amended to read as follows:

 11    (11)  for  purposes of receiving family planning services eligible for

 12  reimbursement by the federal government at a rate of ninety percent,  is

 13  not  otherwise  eligible  for medical assistance and whose income is two

 14  hundred percent or less of the comparable federal income official pover-

 15  ty line (as defined and annually revised by the United States department

 16  of health and human services). The commissioner of health  shall  submit

 17  whatever  waiver  applications  as  may  be necessary to receive federal

 18  financial participation for services provided  under  this  subparagraph

 19  and  the  provisions  of  this subparagraph shall be effective if and so

 20  long as such federal financial participation shall be  available;   and 

 21  or

 22    §  7.  Paragraph  (a)  of  subdivision  1 of section 366 of the social

 23  services law is amended by adding two new subparagraphs  12  and  13  to

 24  read as follows:

 25    (12) is a disabled person at least sixteen years of age, but under the

 26  age of sixty-five, who: would be eligible for benefits under the supple-

 27  mental  security income program but for earnings in excess of the allow-

 28  able limit; has net available income that does not  exceed  two  hundred

                                        260                        12021-01-1

  1  fifty percent of the applicable federal income official poverty line, as

  2  defined  and updated by the United States department of health and human

  3  services, for a one-person or two-person household, as  defined  by  the

  4  commissioner in regulation; has household resources, as defined in para-

  5  graph  (e)  of  subdivision  two of section three hundred sixty-six-c of

  6  this title, that do not exceed ten thousand dollars; and contributes  to

  7  the cost of medical assistance provided pursuant to this subparagraph in

  8  accordance  with  subdivision twelve of section three hundred sixty-sev-

  9  en-a of this title; for purposes of this  subparagraph,  disabled  means

 10  having  a  medically  determinable impairment of sufficient severity and

 11  duration to qualify for benefits under section 1902(a)(10)(A)(ii)(xv) of

 12  the social security act; or

 13    (13) is a person at least sixteen years of age, but under the  age  of

 14  sixty-five, who: is employed; ceases to be in receipt of medical assist-

 15  ance  under subparagraph twelve of this paragraph because the person, by

 16  reason of medical improvement, is determined at the time of a  regularly

 17  scheduled  continuing  disability  review  to  no longer be eligible for

 18  supplemental security income program benefits  or  disability  insurance

 19  benefits  under  the  social  security  act;  continues to have a severe

 20  medically determinable impairment, to be determined in  accordance  with

 21  applicable  federal  regulations; and contributes to the cost of medical

 22  assistance provided pursuant to this  subparagraph  in  accordance  with

 23  subdivision twelve of section three hundred sixty-seven-a of this title;

 24  for purposes of this subparagraph, a person is considered to be employed

 25  if  the  person  is  earning  at least the applicable minimum wage under

 26  section six of the federal fair labor standards act and working at least

 27  forty hours per month; and

                                        261                        12021-01-1

  1    § 8. Section 366 of the social services law is amended by adding a new

  2  subdivision 11 to read as follows:

  3    11. The commissioner of health shall, consistent with this title, make

  4  any  necessary  amendments  to  the  state  plan  for medical assistance

  5  submitted pursuant to section three hundred sixty-three-a of this title,

  6  in order to ensure federal financial participation in expenditures under

  7  subparagraphs twelve and thirteen of paragraph (a) of subdivision one of

  8  this section.  Notwithstanding any other provision of law to the contra-

  9  ry, medical assistance under subparagraphs twelve and thirteen of  para-

 10  graph  (a)  of subdivision one of this section shall be provided only to

 11  the extent permitted under federal law, if, for so long as, and  to  the

 12  extent that federal financial participation is available therefor.

 13    §  9.  Section 367-a of the social services law is amended by adding a

 14  new subdivision 12 to read as follows:

 15    12. Prior to receiving medical assistance under  subparagraphs  twelve

 16  and  thirteen  of  paragraph  (a)  of  subdivision  one of section three

 17  hundred sixty-six of this title, a person whose net available income  is

 18  at  least  one  hundred  fifty  percent of the applicable federal income

 19  official poverty line, as defined  and  updated  by  the  United  States

 20  department  of health and human services, must pay a premium, in accord-

 21  ance with a procedure to be established by the commissioner. The  amount

 22  of  such  premium  shall  be  equal  to  the sum of three percent of the

 23  person's net earned  income  and  seven  and  one-half  percent  of  the

 24  person's  net  unearned  income.    No  premium shall be required from a

 25  person whose net available income is less than one hundred fifty percent

 26  of the applicable federal income official poverty line, as  defined  and

 27  updated by the United States department of health and human services.

                                        262                        12021-01-1

  1    §  10.  Subdivision  1  of section 368-a of the social services law is

  2  amended by adding a new paragraph (v) to read as follows:

  3    (v)  One  hundred  per  centum of the amount expended for the adminis-

  4  tration of medical assistance furnished pursuant to subparagraphs twelve

  5  and thirteen of paragraph  (a)  of  subdivision  one  of  section  three

  6  hundred sixty-six of this title, after first deducting any federal funds

  7  properly received or to be received on account of such expenditures.

  8    §  11.  Subdivision  4  of  section  366 of the social services law is

  9  amended by adding a new paragraph (v) to read as follows:

 10    (v)(1) Persons who are not otherwise eligible for  medical  assistance

 11  are  eligible  for  medical  assistance coverage during the treatment of

 12  breast or cervical cancer, subject to the provisions of this paragraph.

 13    (2)(i) Medical assistance is available under this paragraph to persons

 14  who are under sixty-five years of age, have  been  screened  for  breast

 15  and/or  cervical  cancer  under  the  Centers  for  Disease  Control and

 16  Prevention breast and cervical cancer early detection program  and  need

 17  treatment  for  breast or cervical cancer, and are not otherwise covered

 18  under creditable coverage  as  defined  in  the  federal  public  health

 19  service act; provided however that medical assistance shall be furnished

 20  pursuant  to this clause only to the extent permitted under federal law,

 21  if, for so long as, and to the extent  that  federal  financial  partic-

 22  ipation is available therefor.

 23    (ii)  Medical  assistance is available under this paragraph to persons

 24  who meet the requirements of clause (i) but for their age, who have been

 25  screened for breast and/or cervical cancer under the  program  described

 26  in  title  I-A  of article twenty-four of the public health law and need

 27  treatment for breast or cervical cancer, and are not  otherwise  covered

 28  under  creditable  coverage  as  defined  in  the  federal public health

                                        263                        12021-01-1

  1  service act; provided however that medical assistance shall be furnished

  2  pursuant to this clause only if and for so  long  as  federal  financial

  3  participation  pursuant to the provisions of clause (i) of this subpara-

  4  graph is available thereunder.

  5    (3) Medical assistance provided to a person under this paragraph shall

  6  be  limited  to  the  period in which such person requires treatment for

  7  breast or cervical cancer.

  8    (4) The commissioner of health shall promulgate  such  regulations  as

  9  may  be  necessary  to  carry out the provisions of this paragraph. Such

 10  regulations shall include, but not be limited to:  eligibility  require-

 11  ments;  a  description of the scope and duration of the medical services

 12  which are covered; and a process for providing  presumptive  eligibility

 13  when  a  qualified entity, as defined by the commissioner, determines on

 14  the basis of preliminary information that a person  meets  the  require-

 15  ments for eligibility under this paragraph.

 16    (5) The commissioner of health shall, consistent with this title, make

 17  any  necessary  amendments  to  the  state  plan  for medical assistance

 18  submitted pursuant to section three hundred sixty-three-a of this title,

 19  in order to ensure federal financial participation in expenditures under

 20  this paragraph.  Notwithstanding any provision of law to  the  contrary,

 21  the provisions of clause (i) of subparagraph two of this paragraph shall

 22  be  effective only if and for so long as federal financial participation

 23  is available in the costs of medical assistance furnished thereunder.

 24    § 12. Subdivision 1 of section 368-a of the  social  services  law  is

 25  amended by adding a new paragraph (w) to read as follows:

 26    (w)  One  hundred  per  centum of the amount expended for the adminis-

 27  tration of medical assistance furnished pursuant  to  paragraph  (v)  of

 28  subdivision four of section three hundred sixty-six of this title, after

                                        264                        12021-01-1

  1  first deducting any federal funds properly received or to be received on

  2  account of such expenditures.

  3    §  13.  Subdivision 13 of section 367-b of the social services law, as

  4  added by section 1 of part C of chapter 57  of  the  laws  of  2000,  is

  5  amended to read as follows:

  6    13.  Notwithstanding  any  inconsistent  provision  of law, in lieu of

  7  payments authorized by this chapter and/or any of the  general  fund  or

  8  special revenue other appropriations made to the office of temporary and

  9  disability  assistance  and  the office of children and family services,

 10  from funds otherwise due to local social services districts or  in  lieu

 11  of  payments  of  federal  funds  otherwise due to local social services

 12  districts for programs provided under the federal social security act or

 13  the federal food stamp act or the  low  income  home  energy  assistance

 14  program, funds in amounts certified by the commissioner of the office of

 15  temporary and disability assistance or the commissioner of the office of

 16  children  and  family services or the commissioner of health as due from

 17  local social services districts as their share of payments made pursuant

 18  to this section, may be set-aside by the state comptroller in an  inter-

 19  est-bearing  account  with  such  interest accruing to the credit of the

 20  locality, pursuant to an estimate provided by the commissioner of health

 21  of a local  social  services  district's  share  of  medical  assistance

 22  payments,  except  that in the case of the city of New York, such set-a-

 23  side shall be subject first to the requirements  of  a  section  of  the

 24  chapter  of  the  laws of two thousand one which enacted this provision,

 25  and then subject to the requirements of paragraph (i) of subdivision (b)

 26  of section two hundred twenty-two-a of chapter four hundred seventy-four

 27  of the laws of nineteen hundred ninety-six prior to the  application  of

 28  this  subdivision.    Should  funds  otherwise payable to a local social

                                        265                        12021-01-1

  1  services district from appropriations made to the  office  of  temporary

  2  and  disability  assistance, the office of children and family services,

  3  and the department of health be insufficient to fully fund  the  amounts

  4  identified  by  the commissioner of health as necessary to liquidate the

  5  local share of payments to be made pursuant to this section on behalf of

  6  the local social services district, the commissioner of health may iden-

  7  tify other state or  federal  payments  payable  to  that  local  social

  8  services  district or any other county agency including, but not limited

  9  to the county department of health,  from  appropriations  made  to  the

 10  state  department  of  health,  and may authorize the state comptroller,

 11  upon no less than five days written notice to such local social services

 12  district or such other county agency, to set-aside such payments in  the

 13  interest-bearing  account  with  such interest accruing to the credit of

 14  the locality. Upon such determination by the commissioner of health that

 15  insufficient funds are payable to a local social services  district  and

 16  any  other county agency receiving payments from the office of temporary

 17  and disability assistance, the office of children and  family  services,

 18  and  the  state  department  of health from appropriations made to these

 19  agencies, the state comptroller shall, upon no less than five days writ-

 20  ten notice to such local social services district or such  other  county

 21  agency,  withhold  payments from any of the general fund - local assist-

 22  ance accounts or payments made from any of the special revenue - federal

 23  local assistance accounts, provided, however, that such federal payments

 24  shall be withheld only after such federal funds are properly credited to

 25  the county through vouchers, claims or other warrants properly received,

 26  approved,  and  paid  by  the  state  comptroller,  and  set-aside  such

 27  disbursements  in the interest-bearing account with such interest accru-

 28  ing to the credit of the locality until such time that the amount  with-

                                        266                        12021-01-1

  1  held  from each county is determined by the commissioner of health to be

  2  sufficient to fully liquidate the local share of payments, as  estimated

  3  by  the  commissioner  of health, to be made pursuant to this section on

  4  behalf of that local social services district.

  5    § 14. Paragraph (i) of subdivision (b) of section 222-a of chapter 474

  6  of  the  laws of 1996 amending the education law and other laws relating

  7  to rates for residential care facilities, as added by chapter 433 of the

  8  laws of 1997, is amended to read as follows:

  9    (i) in the case of a county or in the case of the city  of  New  York,

 10  subject  to  the requirements of a section of the chapter of the laws of

 11  two thousand one which enacted this provision, in which a public general

 12  hospital, other than a public general hospital operated by the state  of

 13  New  York or state university of New York, is participating in a payment

 14  pursuant to sections two hundred eleven and two hundred twelve  of  this

 15  act,  state reimbursement pursuant to (A) subdivision 1 of section 368-a

 16  of the social services law, except for reimbursement pursuant  to  para-

 17  graph  (a)  of such subdivision, and (B) subdivision 1 of section 153 of

 18  the social services law shall be reduced by  a  total  amount  equal  to

 19  forty percent of the projected amount reconciled to the actual amount of

 20  such  payments  for  such  public  general  hospital. The departments of

 21  health and social services shall cooperate in  effecting  the  reduction

 22  authorized by this section; and

 23    §  15. Notwithstanding any inconsistent provision of law or regulation

 24  to the contrary, for each annual state fiscal year  beginning  April  1,

 25  2001,  through  March  31,  2003,  payments pursuant to paragraph (h) of

 26  subdivision 1 of section 368-a of the social services  law  due  to  the

 27  city of New York, shall be reduced by the sum of 85 million dollars.

                                        267                        12021-01-1

  1    §  16.  Subparagraph (iv) of paragraph (f) of subdivision 1 of section

  2  2807-1 of the public health law, as amended by section 6 of  part  A  of

  3  chapter 57 of the laws of 2000, is amended to read as follows:

  4    (iv)  from the pool for the period January first, two thousand through

  5  December thirty-first, two thousand  two ,  eighty-two  million  dollars

  6   annually,  and for the period January first, two thousand three through

  7  June thirtieth, two thousand three, forty-one million dollars  shall  be

  8  deposited  by  the  commissioner,  and  the  state comptroller is hereby

  9  authorized and directed to receive for deposit  to  the  credit  of  the

 10  state  special revenue fund - other, HCRA transfer fund, medical assist-

 11  ance account.

 12    § 17. Subdivision 3 of section 2807-1 of the  public  health  law,  as

 13  amended  by  chapter  419  of  the  laws  of 2000, is amended to read as

 14  follows:

 15    3. (a) Notwithstanding any inconsistent  provision  of  law,  rule  or

 16  regulation,  any  sixty-nine million dollars of the funds accumulated in

 17  the  health care initiatives pools pursuant to paragraph (b) of subdivi-

 18  sion nine of section twenty-eight hundred seven-j of this article, as  a

 19  result  of surcharges, assessments or other obligations during the peri-

 20  ods January first, nineteen hundred ninety-seven through December  thir-

 21  ty-first,  nineteen hundred ninety-nine, which are unused or uncommitted

 22  for distributions pursuant to this section shall be reserved and accumu-

 23  lated from year to year by the commissioner and, within  amounts  appro-

 24  priated,  transferred  and  deposited  into  the special revenue funds -

 25  other, miscellaneous special revenue fund - 339, child health  insurance

 26  account,  for  purposes  of  distributions to implement the child health

 27  insurance program established pursuant to sections  twenty-five  hundred

 28  ten  and  twenty-five  hundred eleven of this chapter for periods on and

                                        268                        12021-01-1

  1  after January first, two thousand one; provided, however, funds reserved

  2  and accumulated for  priority  distributions  pursuant  to  subparagraph

  3  (iii)  of  paragraph (c) of subdivision one of this section shall not be

  4  transferred  and  deposited  into such account pursuant to this subdivi-

  5  sion; and provided further, however, the primary  health  care  services

  6  grant  program pursuant to section twenty-eight hundred seven-bb of this

  7  article, as in effect prior to January first,  two  thousand,  shall  be

  8  funded up to allocated amounts set forth in paragraph (g) of subdivision

  9  one  of  this  section  less  amounts  set  aside and distributed by the

 10  commissioner in accordance with section thirty-two-c of part F of  chap-

 11  ter four hundred twelve of the laws of nineteen hundred ninety-nine, and

 12  shall  not  be  transferred  and deposited into such account pursuant to

 13  this subdivision.

 14    (b) Any unused or uncommitted funds  remaining  after  the  sixty-nine

 15  million dollar transfer to the child health insurance account in accord-

 16  ance  with  paragraph  (a) of this subdivision shall be available in the

 17  health care initiatives pool and added to funds accumulated pursuant  to

 18  paragraph  (b)  of  subdivision  nine  of  section  twenty-eight hundred

 19  seven-j of this article for distribution in accordance with this section

 20  for periods on and after January first, two thousand one.

 21    § 18. Subparagraph (i) of paragraph (o) of subdivision  1  of  section

 22  2807-v  of  the  public health law, as added by chapter 1 of the laws of

 23  1999, is amended to read as follows:

 24    (i) up to  ninety  sixty million dollars for the period January first,

 25  two thousand through December thirty-first, two thousand;

 26    § 19. Paragraph (r) of subdivision 1 of section 2807-v of  the  public

 27  health law, as added by chapter 1 of the laws of 1999, the opening para-

                                        269                        12021-01-1

  1  graph  as amended by chapter 419 of the laws of 2000, is amended to read

  2  as follows:

  3    (r) Funds shall be deposited by the commissioner within amounts appro-

  4  priated,  and the state comptroller is hereby authorized and directed to

  5  receive for deposit to the credit of the state special revenue  funds  -

  6  other,  HCRA  transfer fund, medical assistance account, for purposes of

  7  providing distributions for supplementary medical insurance for Medicare

  8  part B  premiums,  physicians  services,  outpatient  services,  medical

  9  equipment,  supplies and other health services, from the tobacco control

 10  and insurance initiatives pool established for the following periods  in

 11  the following amounts:

 12    (i)   forty-three   eighteen  million  dollars  for the period January

 13  first, two thousand through December thirty-first, two thousand;

 14    (ii)  sixty-one  thirty-six million dollars  for  the  period  January

 15  first, two thousand one through December thirty-first, two thousand one;

 16    (iii)   sixty-five   thirty-one million dollars for the period January

 17  first, two thousand two through December thirty-first, two thousand two;

 18  and

 19    (iv)  thirty-four  seventeen million dollars for  the  period  January

 20  first, two thousand three through June thirtieth, two thousand three.

 21    §  20.  Subdivision  4  of section 2807-v of the public health law, as

 22  added by chapter 419 of the laws of 2000, is amended to read as follows:

 23    4. In the event residual funds are available in  the  tobacco  control

 24  and  insurance  initiatives  pool  established  for the  period  periods

 25  January first, two thousand through  December  thirty-first,  two  thou-

 26  sand   June  thirtieth,  two thousand three, after allocations have been

 27  made pursuant to this section for the  period   periods  January  first,

 28  two  thousand through  December thirty-first, two thousand, up to forty-

                                        270                        12021-01-1

  1  five million dollars  June thirtieth, two thousand three, any amount  of

  2  such funds may be transferred to the health care initiatives pool estab-

  3  lished  pursuant to section twenty-eight hundred seven-l of this article

  4  for  the   period  periods January first, two thousand through  December

  5  thirty-first, two thousand  June thirtieth, two thousand  three,  to  be

  6  allocated  and distributed proportionally among affected programs by the

  7  commissioner to cover any shortfall in programs and purposes  set  forth

  8  in subdivision one of section twenty-eight hundred seven-l of this arti-

  9  cle.

 10    § 21. Notwithstanding any inconsistent provision of law, rule or regu-

 11  lation,  section sixteen of this act and the amendments to subparagraphs

 12  (ii), (iii) and (iv) of paragraph (r) of subdivision 1 of section 2807-v

 13  of the public health law, as set forth in section nineteen of this  act,

 14  shall not take effect unless and until sections twenty-two through twen-

 15  ty-four of this act are enacted by the legislature.

 16    §  22. Notwithstanding any inconsistent provision of law or regulation

 17  to the contrary, effective for periods beginning April 1,  2001  through

 18  June  30, 2003, the capital cost component of every proprietary residen-

 19  tial health care facility rate of payment determined pursuant to article

 20  28 of the public health law shall not include a payment factor to pay an

 21  annual rate of return on owner's equity or a payment factor  to  pay  an

 22  annual rate of return on average equity capital.

 23    §  23.  1.  Notwithstanding any inconsistent provision of law or regu-

 24  lation, the trend factors used to project reimbursable  operating  costs

 25  to the rate period for purposes of determining rates of payment pursuant

 26  to  article  28  of  the  public  health law for residential health care

 27  facilities for reimbursement of inpatient services provided to  patients

 28  eligible  for  payments  made by state governmental agencies on or after

                                        271                        12021-01-1

  1  April 1, 2001 through June  30,  2003  shall  reflect  no  trend  factor

  2  projections  or  adjustments  for the period April 1, 2001 through March

  3  31, 2002.

  4    2.  The  commissioner  of health shall adjust such rates of payment to

  5  reflect the exclusion pursuant to this section of such  specified  trend

  6  factor projections or adjustments.

  7    §  24. Notwithstanding any inconsistent provision of law or regulation

  8  to the contrary, residential  health  care  facility  rates  of  payment

  9  determined  pursuant to article 28 of the public health law for services

 10  provided on and after April 1, 2001 through June 30,  2003,  except  for

 11  the  establishment  of  any  statewide  or any peer group base, mean, or

 12  ceiling prices per day, shall be calculated utilizing only the number of

 13  residents properly assessed and reported in each patient  classification

 14  group  and eligible for medical assistance pursuant to title 11 of arti-

 15  cle 5 of the social services law.

 16    § 25. Paragraph (b) of subdivision 6 of section 367-a  of  the  social

 17  services  law,  as  added by chapter 41 of the laws of 1992 and subpara-

 18  graph (iii) of paragraph (b) as amended by chapter 843 of  the  laws  of

 19  1992, is amended to read as follows:

 20    (b)  Co-payments  shall apply to all eligible persons for the services

 21  defined in paragraph (d) of this subdivision with the exception of:

 22    (i) individuals under twenty-one years of age;

 23    (ii) pregnant women;

 24    (iii) individuals who are inpatients in a medical  facility  who  have

 25  been  required  to  spend  all  of their income for medical care, except

 26  their personal needs allowance or residents of community based  residen-

 27  tial facilities licensed by the office of mental health or the office of

                                        272                        12021-01-1

  1  mental retardation and developmental disabilities who have been required

  2  to spend all of their income, except their personal needs allowance; and

  3    (iv)   individuals  enrolled  in  health  maintenance organizations or

  4  other entities which provide comprehensive  health  services,  or  other

  5  managed care programs for services covered by such programs; and

  6    (v)   any  other individuals required to be excluded by federal law or

  7  regulations.

  8    § 26. Notwithstanding any inconsistent provision of law or  regulation

  9  to  the  contrary,  no government agency shall pay or make reimbursement

 10  for any costs associated with the real property or capital costs of  any

 11  residential  health  care facility which has not received final approval

 12  to commence construction, as of January 1,  2001,  with  respect  to  an

 13  application  to  add any new residential health care facility beds under

 14  article 28 of the public health law.

 15    § 27. Section 3 of chapter 483 of the laws of 1978 amending the public

 16  health law relating to rate of payment for each residential health  care

 17  facility  to  real property costs, as amended by chapter 520 of the laws

 18  of 2000, is amended to read as follows:

 19    § 3. This act shall take effect immediately  provided,  however,  that

 20  the  provisions  of subdivision 2-a of section 2808 of the public health

 21  law, as added by section one of this act, shall remain in full force and

 22  effect until December 31, 2001 .

 23    § 28. Section 18 of chapter 904 of the  laws  of  1984,  amending  the

 24  public  health  law  and the social services law relating to encouraging

 25  comprehensive health services, as amended by section  9  of  part  B  of

 26  chapter 57 of the laws of 2000, is amended to read as follows:

 27    §  18.  This  act  shall take effect immediately, except that sections

 28  six, nine, ten and eleven of this act shall take effect on the  sixtieth

                                        273                        12021-01-1

  1  day  after  it shall have become a law, sections three, four and nine of

  2  this act shall expire and be of no further force or effect on  or  after

  3  July 1,  2001   2002, section two of this act shall take effect on April

  4  1,  1985  or  seventy-five  days  following the submission of the report

  5  required by section one of this  act,  whichever  is  later,  and  shall

  6  expire  and  be  of no further force or effect after July 1,  2001  2002

  7  and sections eleven and thirteen of this act shall expire and be  of  no

  8  further force or effect on or after March 31, 1988.

  9    § 29. Notwithstanding any inconsistent provision of law, rule or regu-

 10  lation,  the  effectiveness of subdivisions 4, 7, 7-a and 7-b of section

 11  2807 of the public health law and section 18 of chapter 2 of the laws of

 12  1998, as they relate to time frames  for  notice,  approval  or  certif-

 13  ication  of  rates of payment, and to the requirement of prior notice of

 14  rates of payment, are hereby suspended and shall for purposes of  imple-

 15  menting  the  provisions  of the act, be deemed to have been without any

 16  force and effect from and after November 1, 2000 for such  rates  effec-

 17  tive for the period January 1, 2001 through December 31, 2001.

 18    §  30.  Severability.  If  any clause, sentence, paragraph, section or

 19  part of this act shall be adjudged by any court of  competent  jurisdic-

 20  tion to be invalid, such judgment shall not affect, impair or invalidate

 21  the  remainder  thereof,  but  shall be confined in its operation to the

 22  clause, sentence, paragraph, section or part thereof  directly  involved

 23  in the controversy in which such judgment shall have been rendered.

 24    §  31.  This  act shall take effect immediately and shall be deemed to

 25  have been in full force and effect on and after April 1, 2001,  provided

 26  that  section  one of this act shall take effect March 31, 2001 provided

 27  however that sections four and five of this act shall be deemed to  have

 28  been  in full force and effect on and after January 1, 1997, as if their

                                        274                        12021-01-1

  1  provisions were included in the appropriate amendments in chapter 639 of

  2  the laws of 1996, sections six and seven of this act shall  take  effect

  3  January 1, 2002, or as soon thereafter as practicable, and section elev-

  4  en  of  this  act shall take effect October 1, 2001. The commissioner of

  5  health may take any steps, including the promulgation of regulations  on

  6  an emergency basis, which he or she determines to be necessary to imple-

  7  ment  any  provisions  of  this  act;  provided,  however,  that nothing

  8  contained herein shall be deemed to affect the  application,  qualifica-

  9  tion, expiration, reversion or repeal of any provision of law amended by

 10  any  section of this act and the provisions of this act shall be applied

 11  or qualified or shall expire or revert or be deemed repealed in the same

 12  manner, to the same extent and on the same date as the case  may  be  as

 13  otherwise  provided  by  law.    The provisions of this act shall become

 14  effective notwithstanding the failure of the commissioner of  health  to

 15  promulgate regulations implementing this act.

 16                                   PART K

 17    Section  1.  Paragraph  (a)  of  subdivision 3 of section 547-b of the

 18  executive law, as amended by chapter 692 of the laws of 1996, is amended

 19  to read as follows:

 20    (a) Eligibility for assistance under this article shall not be granted

 21  to any person who at the  time  an  application  is  made  is  receiving

 22  medical  assistance  under section three hundred sixty-six of the social

 23  services law , or to any person receiving equivalent or better  coverage

 24  from any other public or private third party payment source or insurance

 25  plan than those benefits provided for under this article .

                                        275                        12021-01-1

  1    §  2. Subdivision 1 of section 547-j of the executive law, as added by

  2  chapter 913 of the laws of 1986, is amended to read as follows:

  3    1.  The  amount of reimbursement which shall be paid by the state to a

  4  participating provider pharmacy for any covered drug filled or  refilled

  5  for  any  eligible  program participant shall be equal to the  lower of 

  6  allowed amount defined as follows, minus the point of sale co-payment as

  7  required by sections five hundred forty-seven-g and five hundred  forty-

  8  seven-h of this article:

  9    (a)   The  usual  and  customary charge of the pharmacy for such drugs

 10  minus the point of sale co-payment as required by sections five  hundred

 11  forty-seven-g and five hundred forty-seven-h of this article; or

 12    (b)  The  pharmacy's  charge  to  the  general  public  at the time of

 13  purchase,  taking  into  consideration  any  quantity  and   promotional

 14  discounts;  minus  the  point of sale co-payment as required by sections

 15  five hundred forty-seven-g and five hundred forty-seven-h of this  arti-

 16  cle; or

 17    (c)  The average wholesale price based on the quantities participating

 18  pharmacies buy most frequently,  provided  however,  that  such  average

 19  wholesale prices shall be discounted by five percent for any participat-

 20  ing provider pharmacy or group of provider pharmacies with common owner-

 21  ship whose total prescription volume for the preceding calendar year was

 22  at  least one hundred thousand prescriptions dispensed; and a dispensing

 23  fee of two dollars and seventy-five cents, except that it shall be three

 24  dollars for participating provider pharmacies which provide  twenty-four

 25  hour  emergency  prescription  service, emergency delivery service at no

 26  cost to the consumer, maintain a  patient  drug  profile  card  on  each

 27  eligible  program  participant,  and provide direct patient consultation

 28  with each prescription; minus the point of sale co-payment  as  required

                                        276                        12021-01-1

  1  by sections five hundred forty-seven-g and five hundred forty-seven-h of

  2  this article. 

  3     Multiple  source covered drugs.  Except for brand name drugs that are

  4  required by the prescriber to  be  dispensed  as  written,  the  allowed

  5  amount  for  a  multiple  source covered drug shall equal the sum of the

  6  upper limit set by the federal health care financing administration  for

  7  such multiple source drug, plus a dispensing fee as defined in paragraph

  8  (c) of this subdivision.  If an upper limit has not been established for

  9  such  drug, then the allowed amount for "other covered drugs" defined in

 10  paragraph (b) of this subdivision applies.

 11    (b) Other covered drugs.   The allowed amount  for  brand  name  drugs

 12  required  by  the prescriber to be dispensed as written, and for covered

 13  drugs other than multiple source drugs, shall be determined by  applying

 14  the lower of:

 15    (i) Average wholesale price discounted by ten percent, plus a dispens-

 16  ing fee as defined in paragraph (c) of this subdivision, or

 17    (ii)  The pharmacy's usual and customary charge to the general public,

 18  taking into consideration any quantity and promotional discounts to  the

 19  general public at the time of purchase.

 20    (c)  As  required  by  paragraphs  (a)  and (b) of this subdivision, a

 21  dispensing fee of four dollars and fifty cents  will  apply  to  generic

 22  drugs  and  a dispensing fee of three dollars and fifty cents will apply

 23  to brand name drugs.

 24    § 3. Paragraphs (a) and (b) of subdivision 3 of section 547-j  of  the

 25  executive  law,  paragraph  (a) as amended by chapter 474 of the laws of

 26  1996 and paragraph (b) as amended by section 8 of part J of  chapter  57

 27  of the laws of 2000, are amended to read as follows:

                                        277                        12021-01-1

  1    (a)  Notwithstanding any inconsistent provision of law,  if a manufac-

  2  turer (as defined under section 1927 of the federal social security act)

  3  has entered into a  rebate  agreement  with  the  department  of  social

  4  services  or  with the federal secretary of health and human services on

  5  behalf  of  the  department of social services under section 1927 of the

  6  federal social security act,  the  program  for  elderly  pharmaceutical

  7  insurance coverage shall reimburse for covered drugs which are dispensed

  8  under  the  program by a provider pharmacy only pursuant to the terms of

  9   the  a rebate agreement between the program and  such  the manufacturer

 10  (as defined under section 1927 of the federal social  security  act)  of

 11  such covered drugs; provided, however, that:

 12    (i)  any agreement between the program and a manufacturer entered into

 13  before August first, nineteen hundred ninety-one,  shall  be  deemed  to

 14  have  been entered into on April first, nineteen hundred ninety-one; and

 15  provided further, that if a manufacturer has not entered into an  agree-

 16  ment  with  the department before August first, nineteen hundred ninety-

 17  one, such agreement shall not be effective until April  first,  nineteen

 18  hundred  ninety-two, unless such agreement provides that rebates will be

 19  retroactively calculated as if the agreement had been in effect on April

 20  first, nineteen hundred ninety-one; and

 21    (ii) the program may reimburse  for  any  covered  drugs  pursuant  to

 22  subdivisions  one  and  two of this section,  which are rated 1-A by the

 23  federal food and drug administration and  for which a  rebate  agreement

 24  does  not  exist  and which are determined by the elderly pharmaceutical

 25  insurance coverage panel to  be  essential  to  the  health  of  persons

 26  participating  in  the  program;  and either likely to provide effective

 27  therapy or diagnosis for a disease not adequately treated  or  diagnosed

 28  by any other covered drug or to provide substantially improved treatment

                                        278                        12021-01-1

  1  of  a  disease  through  improved effectiveness or safety; and which are

  2  recommended for reimbursement by the panel and approved by  the  commis-

  3  sioner of health.

  4    (b) The rebate agreement between such manufacturer and the program for

  5  elderly  pharmaceutical  insurance  coverage  shall  utilize for covered

  6   single source  drugs  and innovator multiple source drugs  the  identi-

  7  cal  formula  used to determine the  basic  rebate for federal financial

  8  participation for  single source drugs and  innovator  multiple  source 

  9  drugs, pursuant to  paragraph one of  subdivision (c) of section 1927 of

 10  the  federal social security act, to determine the amount of the  basic 

 11  rebate pursuant to this subdivision.  The rebate agreement between  such

 12  manufacturer and the program for elderly pharmaceutical insurance cover-

 13  age shall utilize for non-innovator multiple source drugs, the identical

 14  formula used to determine the basic rebate for federal financial partic-

 15  ipation  for  non-innovator multiple source drugs, pursuant to paragraph

 16  three of subdivision (c) of section 1927 of the federal social  security

 17  act,  to determine the amount of the basic rebate pursuant to this para-

 18  graph. For the rebate quarters beginning on or after October first,  two

 19  thousand,  the  basic  rebate  pursuant  to  this  subdivision  will  be

 20  increased by an additional rebate for  all  covered  drugs.  The  rebate

 21  agreement  between such manufacturer and the program for elderly pharma-

 22  ceutical insurance coverage shall utilize the following formula for  all

 23  covered  drugs  to  determine  the  amount  of additional rebate due the

 24  program pursuant to this paragraph:

 25    (i) For each quarter for which a rebate is to  be  paid,  the  average

 26  manufacturer  price  for each dosage form and strength of a covered drug

 27  shall be compared to the average manufacturer price for  the  same  drug

                                        279                        12021-01-1

  1  for  the base quarter defined pursuant to subparagraph (v) of this para-

  2  graph and a percentage increase shall be calculated.

  3    (ii)  For  each quarter for which a rebate is to be paid, the consumer

  4  price index for all urban consumers for  the  month  before  the  rebate

  5  quarter  shall  be  compared  to  the consumer price index for all urban

  6  consumers for the base CPI month defined pursuant to subparagraph (v) of

  7  this paragraph and a percentage increase shall be calculated.

  8    (iii) If the calculation under subparagraph (i) of this  paragraph  is

  9  greater  than the calculation under subparagraph (ii) of this paragraph,

 10  the additional rebate amount per unit for each quarter shall be equal to

 11  the product of  the  difference  between  the  calculations  under  such

 12  subparagraphs (i) and (ii), multiplied by the average manufacturer price

 13  reported  by  the  manufacturer for the base quarter defined pursuant to

 14  subparagraph (v) of this paragraph.

 15    (iv) For new covered drugs approved by  the  food  and  drug  adminis-

 16  tration  after  the  first  day  of the base quarter defined pursuant to

 17  subparagraph (v) of this  paragraph,  the  additional  rebate  shall  be

 18  applied by substituting "the calendar quarter after the day on which the

 19  drug  was  first  marketed"  for  "the  base quarter defined pursuant to

 20  subparagraph (v) of this paragraph" and "the month prior  to  the  first

 21  month of the first full calendar quarter after the day on which the drug

 22  was  marketed"  for "the base CPI month defined pursuant to subparagraph

 23  (v) of this paragraph" in subparagraphs (i),  (ii)  and  (iii)  of  this

 24  paragraph.

 25    (v)  The  initial base quarter shall be the calendar quarter beginning

 26  October first, nineteen hundred ninety-eight. This base quarter shall be

 27  updated by twenty-four months biennially. The  initial  base  CPI  month

                                        280                        12021-01-1

  1  shall  be  September, nineteen hundred ninety-eight. This base CPI month

  2  shall be updated by twenty-four months biennially. 

  3    §  4.  Section  547-j  of the executive law is amended by adding a new

  4  subdivision 4 to read as follows:

  5    4. Notwithstanding any other provision of law,  entities  which  offer

  6  insurance  coverage for provision of and/or reimbursement for pharmaceu-

  7  tical   expenses,   including   but    not    limited,    to    entities

  8  licensed/certified  pursuant  to  article  thirty-two, forty-two, forty-

  9  three or forty-four of the insurance law (employees  welfare  funds)  or

 10  article  forty-four  of  the  public  health law, shall participate in a

 11  benefit recovery  program  with  the  elderly  pharmaceutical  insurance

 12  coverage  (EPIC)  program which includes, but is not limited to, a semi-

 13  annual match of EPIC's file of enrollees against the  entity's  file  of

 14  insured  to  identify  individuals  enrolled in both plans.  Such entity

 15  shall provide the extent and status of the pharmaceutical benefits under

 16  the entity's plan for those identified individuals and  shall  reimburse

 17  EPIC  for  pharmaceutical  expenses  paid by EPIC that are covered under

 18  contract between the entity and its insured.  Reimbursement will be made

 19  to EPIC within sixty days of receipt from  EPIC  of  the  standard  data

 20  necessary  for  the entity to adjudicate the claim, and shall detail any

 21  adjustments made thereto by the entity.

 22    § 5. This act shall take effect immediately; provided,  however,  that

 23  section  one  of this act shall take effect 120 days after it shall have

 24  become a law and section four of this act shall be deemed to  have  been

 25  in full force and effect on and after January 1, 1999.

 26                                   PART L

                                        281                        12021-01-1

  1    Section  1. Section 2803 of the public health law is amended by adding

  2  a new subdivision 10 to read as follows:

  3    10.  (a)  There  shall be established within the miscellaneous special

  4  revenue fund a quality of care improvement  account.  All  penalties  or

  5  fines  received  by  the  department  pursuant to section twelve of this

  6  chapter and funds collected  by  the  department  of  health  and  human

  7  services as a result of the imposition of fines for violations of any of

  8  the  requirements  for participation in the Medicaid program which occur

  9  in a residential health care facility and penalties or fines received by

 10  the department pursuant to section twenty-eight hundred three-d of  this

 11  article shall be deposited in the quality of care improvement account.

 12    (b)  Moneys available in the quality of care improvement account shall

 13  be applied to the protection of the health or property of  residents  of

 14  residential  health  care  facilities  that  are  found to be deficient,

 15  including but not limited to, payment for  the  cost  of  relocation  of

 16  residents  to  other  facilities  and  the maintenance of operation of a

 17  facility pending correction of deficiencies or closure.

 18    § 2. This act shall take effect immediately.

 19                                   PART M

 20    Section 1. Subdivision 51 of section 564 of chapter 170 of the laws of

 21  1994 amending the executive law relating to creating a naturally  occur-

 22  ring  retirement  community supportive service program and providing for

 23  the repeal of such provisions upon expiration  thereof,  as  amended  by

 24  chapter 191 of the laws of 1999, is amended to read as follows:

                                        282                        12021-01-1

  1    51. The provisions of sections four hundred ten and four hundred elev-

  2  en  of  this act shall expire and be deemed repealed December 31,  2001 

  3  2003.

  4    § 2. This act shall take effect immediately.

  5                                   PART N

  6    Section 1. Section 1.03 of the mental hygiene law is amended by adding

  7  two new subdivisions 52 and 53 to read as follows:

  8    52.  "Persons  with serious mental illness" means individuals who meet

  9  criteria established by the commissioner of mental health,  which  shall

 10  include  persons  who  are  in psychiatric crisis, or persons who have a

 11  designated diagnosis of mental illness under the most recent edition  of

 12  the  Diagnostic  and  Statistical  Manual  of Mental Disorders and whose

 13  severity and duration of mental illness  results  in  substantial  func-

 14  tional  disability.  Persons  with  serious mental illness shall include

 15  children and adolescents with serious emotional disturbances.

 16    53. "Children and adolescents  with  serious  emotional  disturbances"

 17  means  individuals  under eighteen years of age who meet criteria estab-

 18  lished by the commissioner of mental health, which shall  include  chil-

 19  dren  and  adolescents  who  are  in psychiatric crisis, or children and

 20  adolescents who have a designated diagnosis of mental illness under  the

 21  most  recent  edition of the Diagnostic and Statistical Manual of Mental

 22  Disorders and whose severity and duration of mental illness  results  in

 23  substantial functional disability.

 24    §  2.  Subdivision  (b)  of section 7.17 of the mental hygiene law, as

 25  amended by chapter 333 of the laws  of  1998,  is  amended  to  read  as

 26  follows:

                                        283                        12021-01-1

  1    (b)  There  shall  be  in the office the hospitals named below for the

  2  care, treatment and rehabilitation of  the  mentally  disabled  and  for

  3  research  and  teaching in the science and skills required for the care,

  4  treatment and rehabilitation of such mentally disabled.

  5    Binghamton Psychiatric Center

  6    Bronx Psychiatric Center

  7    Buffalo Psychiatric Center

  8    Capital District Psychiatric Center

  9    Central New York Psychiatric Center

 10    Creedmoor Psychiatric Center

 11    Elmira Psychiatric Center

 12    Hudson River Psychiatric Center

 13    Kingsboro Psychiatric Center

 14    Kirby Forensic Psychiatric Center

 15    Manhattan Psychiatric Center

 16     Middletown Psychiatric Center 

 17    Mid-Hudson Forensic Psychiatric Center

 18    Mohawk Valley Psychiatric Center

 19    Nathan S. Kline Institute for Psychiatric Research

 20    New York State Psychiatric Institute

 21    Pilgrim Psychiatric Center

 22     Richard H. Hutchings Psychiatric Center 

 23    Rochester Psychiatric Center

 24    Rockland Psychiatric Center

 25    St. Lawrence Psychiatric Center

 26    South Beach Psychiatric Center

 27    Bronx Children's Psychiatric Center

 28    Brooklyn Children's Psychiatric Center

                                        284                        12021-01-1

  1    Queens Children's Psychiatric Center

  2    Rockland Children's Psychiatric Center

  3    Sagamore Children's Psychiatric Center

  4    Western New York Children's Psychiatric Center

  5    The  New  York  State  Psychiatric  Institute  and The Nathan S. Kline

  6  Institute for Psychiatric Research are designated as institutes for  the

  7  conduct  of medical research and other scientific investigation directed

  8  towards furthering knowledge of the etiology, diagnosis,  treatment  and

  9  prevention of mental illness.

 10    §  3.  Paragraph  3  of  subdivision (e) of section 7.17 of the mental

 11  hygiene law, as amended by chapter 83 of the laws of 1995, is amended to

 12  read as follows:

 13    3. provide for a mechanism which may reasonably be expected to provide

 14  notice to local governments,  community  organizations,  employee  labor

 15  organizations, managerial and confidential employees, consumer and advo-

 16  cacy  groups of the potential for significant service reductions at such

 17  state-operated hospitals and state-operated research institutes at least

 18  twelve months prior to  commencing  such  service  reduction,  provided,

 19  however, that this requirement shall be deemed satisfied with respect to

 20  reductions  at  Central  Islip  Psychiatric  Center, Gowanda Psychiatric

 21  Center, Harlem Valley Psychiatric Center, Kings Park Psychiatric Center,

 22  Willard  Psychiatric  Center   and ,  Manhattan  Children's  Psychiatric

 23  Center, Richard H.  Hutchings Psychiatric Center, and Middletown Psychi-

 24  atric Center; and

 25    §  4.  Subdivisions (a) and (b) of section 41.11 of the mental hygiene

 26  law, subdivision (a) as amended by chapter 672 of the laws of  1982  and

 27  subdivision  (b)  as  amended  by  chapter  206 of the laws of 1989, are

 28  amended to read as follows:

                                        285                        12021-01-1

  1    (a) In all local governments with a population less than  one  hundred

  2  thousand,  community  services board, at the option of the local govern-

  3  ment, shall have either nine or fifteen members appointed by  the  local

  4  government.  In  all other local governments, a community services board

  5  shall have fifteen members appointed by the local government.

  6    Whenever practicable at least one member shall be a licensed physician

  7  and  one member shall be a certified psychologist and otherwise at least

  8  two members shall be licensed physicians, such members  to  have  demon-

  9  strated  an interest in the field of services for the mentally disabled.

 10  The other members shall represent the  community  interest  in  all  the

 11  problems of the mentally disabled and shall include representatives from

 12  community  agencies  for  the  mentally  ill,  the mentally retarded and

 13  developmentally  disabled,  and  those  suffering  from  alcoholism  and

 14  substance  abuse.  The  community  services  board  shall  have separate

 15  subcommittees for mental health, mental  retardation  and  developmental

 16  disabilities,  and alcoholism or, at the discretion of the local govern-

 17  ment, alcoholism and substance abuse. Each separate  subcommittee  shall

 18  have  no  more  than  nine  members  appointed  by the local government,

 19  provided that each subcommittee for mental health  shall  have  no  more

 20  than  eleven  members  appointed by the local government.  Three of each

 21  such subcommittee shall be members of the board. Each  separate  subcom-

 22  mittee shall be composed of persons who have demonstrated an interest in

 23  the  field of services for the particular class of mentally disabled and

 24  shall include former patients, parents or  relatives  of  such  mentally

 25  disabled  persons and community agencies serving the particular class of

 26  mentally disabled, provided that each  subcommittee  for  mental  health

 27  shall  include  at least two members who are or were consumers of mental

 28  health services, and two members who are parents or relatives of persons

                                        286                        12021-01-1

  1  with mental illness.  Each separate subcommittee shall advise the commu-

  2  nity services board and the director of community services regarding the

  3  exercise of all policy-making functions vested in such board  or  direc-

  4  tor,  as such functions pertain to the field of services for the partic-

  5  ular class of mentally disabled individuals represented by such  subcom-

  6  mittee.  In addition, each subcommittee for mental health shall annually

  7  evaluate the local services plan or the unified services plan, as appro-

  8  priate,  and annually shall report on the consistency of such plans with

  9  the needs of persons with serious mental illness, including children and

 10  adolescents with serious emotional disturbances, and on the  consistency

 11  of  such plans with the goals and objectives of the statewide comprehen-

 12  sive five-year plan for persons with mental illness  developed  pursuant

 13  to  section 5.07 of this chapter. The report shall be forwarded annually

 14  to the community services board and the director of  community  services

 15  and a copy shall also be sent to the commissioner of mental health prior

 16  to  the submission to the commissioner of the local services plan or the

 17  unified services plan. Provided however  that  the  provisions  of  this

 18  paragraph shall not apply to cities of over a million in population.

 19    (b) In  cities  of  over  a  million  a community services board shall

 20  consist of fifteen members to be appointed by the mayor. There shall  be

 21  at  least  two residents of each county within such cities on the board.

 22  At least one shall be a licensed physician and at least one shall  be  a

 23  certified  psychologist. The other members shall represent the community

 24  interest in all of the problems  of  the  mentally  disabled  and  shall

 25  include  representatives  from  community agencies for the mentally ill,

 26  the mentally retarded and developmentally disabled, and those  suffering

 27  from  alcoholism and substance abuse. The community services board shall

 28  have separate subcommittees for mental health,  mental  retardation  and

                                        287                        12021-01-1

  1  developmental  disabilities, and alcoholism or, at the discretion of the

  2  local government, alcoholism and substance abuse. Each separate  subcom-

  3  mittee  shall  have  no  more  than  nine members appointed by the local

  4  government, provided that each subcommittee for mental health shall have

  5  no  more  than  eleven  members appointed by the local government. Three

  6  members of each such subcommittee shall be members of  the  board.  Each

  7  separate subcommittee shall be composed of persons who have demonstrated

  8  an interest in the field of services for the particular class of mental-

  9  ly  disabled  and shall include former patients, parents or relatives of

 10  such mentally  disabled  persons  and  community  agencies  serving  the

 11  particular  class  of mentally disabled, provided that each subcommittee

 12  for mental health shall include at least two members  who  are  or  were

 13  consumers  of mental health services, and two members who are parents or

 14  relatives of persons with mental illness.   Each  separate  subcommittee

 15  shall  advise the community services board and the director of community

 16  services regarding the exercise of all policy-making functions vested in

 17  such board or director, as  such  functions  pertain  to  the  field  of

 18  services  for  the  particular  class  of  mentally disabled individuals

 19  represented by such subcommittee.   In addition, each  subcommittee  for

 20  mental  health  shall  annually  evaluate the local services plan or the

 21  unified services plan, as appropriate, and annually shall report on  the

 22  consistency  of such plans with the needs of persons with serious mental

 23  illness, including  children  and  adolescents  with  serious  emotional

 24  disturbances,  and  on  the consistency of such plans with the goals and

 25  objectives of the statewide comprehensive  five-year  plan  for  persons

 26  with  mental illness developed pursuant to section 5.07 of this chapter.

 27  The report shall be forwarded annually to the community  services  board

 28  and  the director of community services and a copy shall also be sent to

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  1  the commissioner of mental health prior to the submission to the commis-

  2  sioner of the local services plan or the unified services plan.

  3    §  5.  The mental hygiene law is amended by adding a new section 41.56

  4  to read as follows:

  5  § 41.56 Community  mental  health  support  and  workforce  reinvestment

  6            program.

  7    (a)  Funds  shall be made available for the provision of fee increases

  8  and cost-of-living adjustments for certain community-based mental health

  9  services, pursuant to subdivisions (b), (c) and  (d)  of  this  section,

 10  subject to annual appropriations made therefor. Such funds shall also be

 11  made available to pay for the state share of medical assistance payments

 12  for  such  services made pursuant to title eleven of article five of the

 13  social services law.

 14    (b) Funds made available to the office of mental  health  pursuant  to

 15  this  section shall increase the fees for basic reimbursement paid under

 16  the medical assistance program to  outpatient  programs  licensed  under

 17  article thirty-one of this chapter, provided, however, such fee increase

 18  shall  not  pertain to supplemental reimbursement made under the medical

 19  assistance program to comprehensive outpatient programs; to supplemental

 20  reimbursement made under the medical assistance program to programs  not

 21  eligible  to  be  comprehensive  outpatient programs; or to supplemental

 22  reimbursement made under the medical assistance  program  for  community

 23  support program services. Provided, further, such fee increase shall not

 24  apply  to  clinic  treatment, day treatment, or continuing day treatment

 25  programs dually licensed by the  department  of  health  and  office  of

 26  mental  health,  and  such  fees  for basic reimbursement paid under the

 27  medical assistance program to outpatient programs licensed under article

 28  thirty-one of this chapter shall not be included in the  calculation  of

                                        289                        12021-01-1

  1  any  cost-of-living  adjustments  to  be received by any such outpatient

  2  mental health program pursuant to subdivision (c) of this section.

  3    (c)  Funds  made  available to the office of mental health pursuant to

  4  this section shall also be used for payment of an annual  cost-of-living

  5  adjustment  for  certain community mental health services provided under

  6  this article or article forty-three of this chapter or for operators  of

  7  family  care  homes  licensed pursuant to article 31.03 of this chapter,

  8  provided, however, such cost-of-living adjustment  shall  not  apply  to

  9  fees  for  basic reimbursement paid under the medical assistance program

 10  to outpatient programs licensed under article thirty-one of this chapter

 11  or services which are funded  by  federal  grants,  other  than  medical

 12  assistance,  administered  or  received  by the office of mental health.

 13  Provided, further, such cost-of-living adjustment shall not be  made  to

 14  any  rate,  fee  or  other funding if the commissioner determines that a

 15  mechanism exists to provide  a  similar  cost-of-living  adjustment,  or

 16  determines  that  such  rate,  fee  or  other  funding  is  adjusted for

 17  inflation or is based upon the cost of services  provided.  The  commis-

 18  sioner  of  mental  health shall submit a plan for implementation of the

 19  cost-of-living adjustment, subject to the approval of  the  director  of

 20  the budget, limited to annual appropriations made therefor.

 21    (d)  Prior  to increasing funds for contracts or reimbursement for the

 22  provision of services or providing  cost-of-living  adjustments  or  fee

 23  increases funded pursuant to subdivision (b) or (c) of this section, the

 24  office  of mental health shall be authorized to consider the reliability

 25  and capability of the provider, including its expertise,  prior  experi-

 26  ence,  financial  responsibility,  record of adherence to law, record of

 27  providing quality care and services, and ability to deliver  appropriate

 28  services  in a cost-effective and efficient manner to persons with seri-

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  1  ous mental illness, including  children  and  adolescents  with  serious

  2  emotional  disturbances.  The  commissioner  of  mental health is hereby

  3  authorized to deny cost-of-living adjustments or fee increases or reduce

  4  or  deny reimbursement of funds otherwise due pursuant to such contracts

  5  where the provider fails to meet conditions of this subdivision or other

  6  related regulations, standards or contractual obligations.

  7    (e) (1) The commissioner of mental health is authorized and  empowered

  8  to make inspections, examine records and conduct on-site audits of books

  9  and  records  of  a  local  governmental  unit or a provider of services

 10  receiving such funds pursuant to subdivision (b) or (c) of this section.

 11  Such inspections, examination or audits shall be authorized  to  include

 12  all financial, statistical or program information that such commissioner

 13  may determine to be necessary, including but not limited to all medical,

 14  service and financial records, receipts, disbursements, contracts, loans

 15  and  other  moneys  relating  to  the  financial  operation of the local

 16  governmental unit or provider; and

 17    (2) The commissioner of mental  health  is  authorized  to  promulgate

 18  regulations  setting  limits on the total or component forms of adminis-

 19  trative  expenses,  projected  or  actual,  that  may  be  approved   in

 20  connection with providers of community mental health services.

 21    (f)  No  provision of this section shall create or be deemed to create

 22  any right, interest or entitlement for any individual, locality, provid-

 23  er or others to receive community mental health  support  and  workforce

 24  reinvestment  funds,  or  any  other  services or funds, individually or

 25  collectively.

 26    § 6. (a) Subject to the provisions of this  section,  for  the  fiscal

 27  years  2001-2002  through 2003-2004, amounts shall be made available for

 28  appropriation for community mental health support  and  workforce  rein-

                                        291                        12021-01-1

  1  vestment  for  fee increases and cost-of-living adjustments as described

  2  in section 41.56 of the mental hygiene law, as added by section five  of

  3  this  act.  Such amounts shall be calculated in accordance with subdivi-

  4  sions (b), (c) and (d) of this section.

  5    (b)  The amount of community mental health support and workforce rein-

  6  vestment funds for the office of mental health shall be determined annu-

  7  ally in the executive budget and shall  include  the  amount  of  actual

  8  state  operations  general fund appropriation reductions directly attri-

  9  buted to each adult inpatient bed  closed.  For  the  purposes  of  this

 10  section  a  bed shall be considered to be closed upon the elimination of

 11  funding  for  such  bed  in  the  executive  budget.  The  appropriation

 12  reductions  as a result of adult inpatient bed closures shall be no less

 13  than $65,500 on a full annual basis,  as  annually  recommended  by  the

 14  commissioner  of mental health,  subject to the approval of the director

 15  of the budget, in the executive budget request prior to the fiscal  year

 16  for which the executive budget is being submitted, provided, however, in

 17  no  event shall the full annual value of community mental health support

 18  and workforce reinvestment funds attributable to beds closed as a result

 19  of adult inpatient bed closures exceed the twelve  month  value  of  the

 20  office of mental health state operations general fund reductions result-

 21  ing  from  such bed closures. Such funds made available pursuant to this

 22  subdivision shall be at the same amount by which the  office  of  mental

 23  health's  state  operations general fund appropriations are reduced each

 24  year as a result of adult inpatient bed closures, provided,  however  in

 25  fiscal  year  2001-2002  the amount of such funds shall be calculated by

 26  adding the sum of: (i) half the amount of the  appropriation  reductions

 27  attributed  to  non-geriatric adult inpatient bed closures; and (ii) the

                                        292                        12021-01-1

  1  full amount of appropriation  reductions  attributed  to  geriatric  bed

  2  closures.

  3    (c)  An additional amount of community mental health support and work-

  4  force reinvestment shall be made  available  for  appropriation  in  the

  5  executive  budget based upon state operations general fund appropriation

  6  reductions directly attributed to the re-location or closure of  psychi-

  7  atric centers pursuant to sections two and eight of this act. Such funds

  8  shall be made available at the same amount by which the office of mental

  9  health's  state  operations general fund appropriations are reduced each

 10  year as a result of the re-location of the Queens Children's Psychiatric

 11  Center, the Rockland Children's Psychiatric Center, the  Sagamore  Chil-

 12  dren's  Psychiatric Center,  the Western New York Children's Psychiatric

 13  Center and the Kirby Forensic Psychiatric Center, and the closure of the

 14  Richard H. Hutchings Psychiatric Center and the  Middletown  Psychiatric

 15  Center.

 16    (d)  Such  amounts appropriated each year pursuant to community mental

 17  health support and workforce reinvestment shall reflect  the  amount  of

 18  the  state  operations  general  fund appropriation reductions resulting

 19  from subdivisions (b) and (c) of this section. In  no  event  shall  the

 20  cumulative amount of community mental health support and workforce rein-

 21  vestment  exceed  the  cumulative  amount of the office of mental health

 22  state operations general fund reductions resulting from subdivisions (b)

 23  and (c) of this section, provided, however, the total  community  mental

 24  health support and workforce reinvestment appropriation shall include an

 25  additional amount, subject to approval of the director of the budget and

 26  appropriation  in  the  executive  budget,  which  shall  not exceed the

 27  following: (1) for fiscal year 2001-2002 the additional amount shall not

 28  exceed the value of total appropriation reductions, referenced in subdi-

                                        293                        12021-01-1

  1  visions (b) and (c) of this section, multiplied by a factor of 1.5;  (2)

  2  for fiscal year 2002-2003 the additional amount shall not exceed the sum

  3  of  the  value of appropriation reductions in fiscal years 2001-2002 and

  4  2002-2003,  referenced  in  subdivisions  (b)  and  (c) of this section,

  5  multiplied by a factor of 0.7; and (3) for  fiscal  year  2003-2004  the

  6  additional amount shall not exceed the sum of the value of appropriation

  7  reductions  in  fiscal  years 2001-2002, 2002-2003 and 2003-2004, refer-

  8  enced in subdivisions (b) and (c)  of  this  section,  multiplied  by  a

  9  factor of 0.14.

 10    (e)  Subject  to annual appropriations made therefor, community mental

 11  health support and workforce reinvestment  made  available  pursuant  to

 12  subdivisions (b), (c) and (d) of this section shall be made available to

 13  the  office  of mental health as follows: (1) for fiscal year 2001-2002,

 14  funds shall first be used to provide a ten percent fee  increase  effec-

 15  tive  October  1,  2001 for services authorized to receive such increase

 16  pursuant to subdivision (b) of section 41.56 of the mental hygiene  law,

 17  as added by section five of this act; and (2) for fiscal years 2001-2002

 18  through 2003-2004, funds which have not been allocated pursuant to para-

 19  graph  one  of this subdivision shall be used to provide up to a two and

 20  one-half percent cost-of-living adjustment to the  nearest  tenth  of  a

 21  percent  effective  October 1, 2001, October 1, 2002 and October 1, 2003

 22  for services authorized to receive such cost-of-living adjustment pursu-

 23  ant to subdivision (c) of section 41.56 of the mental  hygiene  law,  as

 24  added by section five of this act.

 25    (f)  An  additional amount shall be made available to the commissioner

 26  of mental health, subject to annual appropriations  made  therefor,  for

 27  the  development,  staffing,  and  operation of up to 104 state-operated

 28  transitional residence beds for adults with mental illness and up to  40

                                        294                        12021-01-1

  1  state-operated crisis beds for children and adolescents with serious and

  2  emotional  disturbances, provided, however, by the end of 2003-2004 such

  3  amount shall be equivalent to at least 15 percent, but not more than  20

  4  percent  of the cumulative value of appropriation reductions, calculated

  5  on a full annual basis, for fiscal years 2001-2002 through 2003-2004, as

  6  referenced in subdivision (b) of this section.   Such amount  shall  not

  7  reduce the amount made available for community mental health support and

  8  workforce  reinvestment  pursuant  to  subdivisions (b), (c), and (d) of

  9  this section.

 10    (g) For purposes of this section, the term "state  operations  general

 11  fund"  shall  mean  the office of mental health state operations general

 12  fund appropriations before any offset from the  special  revenue  funds-

 13  other, miscellaneous special revenue fund, mental hygiene patient income

 14  account.

 15    (h) Nothing in this act shall create or be deemed to create any right,

 16  interest  or  entitlement  to  services or funds that are the subject of

 17  this act, or to any other services or  funds,  whether  to  individuals,

 18  localities, providers or others, individually or collectively.

 19    (i)  Notwithstanding any other provision of law, any reconciliation on

 20  or after the effective date of this section for the variance between the

 21  initial and revised estimates of census reductions, pursuant to subdivi-

 22  sion (j) of section 19 of chapter  723  of  the  laws  of  1993  and  as

 23  extended  by  chapter  358  of the laws of 1998, shall be made available

 24  exclusively for community mental health support and workforce  reinvest-

 25  ment  pursuant  to  section 41.56 of the mental hygiene law, as added by

 26  section five of this act.

 27    (j) All methodologies used to determine allocation amounts made pursu-

 28  ant to this section and section 41.56 of  the  mental  hygiene  law,  as

                                        295                        12021-01-1

  1  added  by  section  five  of  this  act,  shall be developed in the sole

  2  discretion of the commissioner of the office of mental  health  and  the

  3  director of the budget.

  4    §  7.  As used in this section, the term "shared staff services" shall

  5  mean mental health services provided  by  employees  of  the  office  of

  6  mental  health  who have been assigned to provide mental health services

  7  in programs operated by counties, not-for-profit agencies, or hospitals,

  8  except such term shall not include those state employees whose positions

  9  were assigned to provide such services and  were  originally  funded  by

 10  amounts   made available pursuant to subdivision (d) of section nineteen

 11  of chapter 723 of the laws of 1993, as extended by chapter  358  of  the

 12  laws of 1998. Appropriations made to the office of mental health related

 13  to  shared  staff  services shall be made available to the local govern-

 14  mental unit in which such  services  were  provided,  as  the  positions

 15  providing  such  services  become  vacant.  Such local governmental unit

 16  shall utilize such funds for the provision of services pursuant  to  the

 17  local  services  plan or unified services plan, as applicable, developed

 18  pursuant to article forty-one of  the  mental  hygiene  law.  Any  state

 19  employee who shall be providing shared staff services on March 31, 2004,

 20  shall  be  reassigned  to  state-operated programs, as determined by the

 21  commissioner of mental health, in a manner  consistent  with  applicable

 22  law,  and  the  funds be made available to the appropriate local govern-

 23  mental unit, pursuant to this section.

 24    § 8. This act shall take effect on October 1, 2001; except that:

 25    (a) notwithstanding any other law to the contrary, including  but  not

 26  limited  to  subdivision  (e) of section 7.17 of the mental hygiene law,

 27  the re-location of Western New York  Children's  Psychiatric  Center  to

 28  Buffalo  Psychiatric  Center,  shall  take  effect on April 1, 2002; the

                                        296                        12021-01-1

  1  closure of Richard H.  Hutchings  Psychiatric  Center,  as  directed  by

  2  section  two  of  this  act,  shall  take effect on January 1, 2003; the

  3  re-location of Sagamore Children's Psychiatric Center to Pilgrim Psychi-

  4  atric  Center,  shall take effect on January 1, 2003; the re-location of

  5  Rockland Children's  Psychiatric Center to Rockland Psychiatric  Center,

  6  shall  take effect on January 1, 2003; the re-location of Kirby Forensic

  7  Psychiatric Center to Manhattan Psychiatric Center, shall take effect on

  8  July 1, 2003; the re-location of Queens Children's Psychiatric Center to

  9  Creedmoor Psychiatric Center, shall take effect on October 1, 2003;  the

 10  closure  of Middletown Psychiatric Center, as directed by section two of

 11  this act, shall take effect on January 1, 2004;

 12    (b) sections one and four of this act shall take effect  on  September

 13  30, 2002;

 14    (c)  subdivisions  (a),  (b), (c), (d), and (e) of section six of this

 15  act shall expire and be deemed repealed March 31, 2004;

 16    (d) section five of this act, and subdivisions (f), (g), (h), (i)  and

 17  (j) of section six of this act shall expire and be deemed repealed March

 18  31, 2005; and

 19    (e)  section  seven of this act shall take effect on April 1, 2001 and

 20  shall expire and be deemed repealed March 31, 2004.

 21                                   PART O

 22    Section 1. Subdivision (b) of section 13.17 of the mental hygiene law,

 23  as amended by section 1 of part N of chapter 57 of the laws of 2000,  is

 24  amended to read as follows:

 25    (b)  There  shall  be  in  the  office  the developmental disabilities

 26  services offices named below  serving  the  areas  either  currently  or

                                        297                        12021-01-1

  1  previously served by a school, for the care and treatment of the mental-

  2  ly  retarded  and developmentally disabled and for research and teaching

  3  in the science and skills required for the care and  treatment  of  such

  4  mentally retarded and developmentally disabled:

  5    Bernard M. Fineson Developmental Disabilities Services Office

  6    Brooklyn Developmental Disabilities Services Office

  7    Broome Developmental Disabilities Services Office

  8    Capital District Developmental Disabilities Services Office

  9    Central New York Developmental Disabilities Services Office

 10    Finger Lakes Developmental Disabilities Services Office

 11    Institute for Basic Research in Developmental Disabilities

 12    Hudson Valley Developmental Disabilities Services Office

 13    Metro New York Developmental Disabilities Services Office

 14    Long Island Developmental Disabilities Services Office

 15    Sunmount Developmental Disabilities Services Office

 16     Taconic Developmental Disabilities Services Office 

 17    Western New York Developmental Disabilities Services Office

 18    Staten Island Developmental Disabilities Services Office

 19    Valley Ridge Center for Intensive Treatment

 20    The New York State Institute for Basic Research in Developmental Disa-

 21  bilities  is  designated  as  an  institute  for  the conduct of medical

 22  research and other scientific investigation directed towards  furthering

 23  knowledge of the etiology, diagnosis, treatment and prevention of mental

 24  retardation and developmental disabilities.

 25    § 2. This act shall take effect April 1, 2001.

 26    § 2. Severability clause. If any clause, sentence, paragraph, subdivi-

 27  sion,  section  or  part  of  this act shall be adjudged by any court of

 28  competent jurisdiction to be invalid, such judgment  shall  not  affect,

                                        298                        12021-01-1

  1  impair,  or  invalidate  the remainder thereof, but shall be confined in

  2  its operation to the clause, sentence, paragraph,  subdivision,  section

  3  or part thereof directly involved in the controversy in which such judg-

  4  ment shall have been rendered. It is hereby declared to be the intent of

  5  the  legislature  that  this  act  would  have been enacted even if such

  6  invalid provisions had not been included herein.

  7    § 3. This act shall take effect immediately  provided,  however,  that

  8  the  applicable effective date of Parts A through O of this act shall be

  9  as specifically set forth in the last section of such Parts.