2002-03 Budget - Article 7 Bill S6257 - MHEC

                STATE OF NEW YORK 
       ________________________________________________________________________
 
           S. 6257                                                  A. 9759
 
                SENATE - ASSEMBLY
 
                                   January 28, 2002
                                      ___________
 
       IN  SENATE -- A BUDGET BILL, submitted by the Governor pursuant to arti-
         cle seven of the Constitution -- read twice and ordered  printed,  and
         when printed to be committed to the Committee on Finance
 
       IN  ASSEMBLY  --  A  BUDGET  BILL, submitted by the Governor pursuant to
         article seven of the Constitution -- read once  and  referred  to  the
         Committee on Ways and Means
 
       AN  ACT to amend the environmental conservation law, in relation to surf
         clams and ocean quahogs (Part A); to amend chapter 67 of the  laws  of
         1992,  amending  the environmental conservation law relating to pesti-
         cide product registration timetables and  fees,  in  relation  to  the
         effectiveness thereof and to amend the environmental conservation law,
         in  relation  to  review  of  pesticide  registration applications and
         registration fees and the revision of  pesticides  applicator  certif-
         ication  fees  (Part  B); to amend the agriculture and markets law, in
         relation to certain license fees (Part C); to amend the state  finance
         law  and  the vehicle and traffic law, in relation to vessel registra-
         tion fees and boating access facilities (Part D); to amend  the  agri-
         culture  and markets law, in relation to certain pet food brand regis-
         tration and weighmaster license fees (Part E); to amend chapter 259 of
         the laws of 2000, amending the general business law,  the  agriculture
         and  markets  law  and the state finance law, relating to registration
         and regulation of pet dealers, in relation to the implementation ther-
         eof (Part F); 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 environmental conservation law relat-
         ing thereto (Part G); to amend  the  parks,  recreation  and  historic
         preservation law and the vehicle and traffic law, in relation to snow-
         mobile  fees (Part H); to amend the state finance law and the environ-
         mental conservation law, in relation to state parks and lands  infras-
         tructure and stewardship projects, and to repeal certain provisions of
         the  state  finance  law relating to the environmental protection fund
         and certain provisions of the environmental conservation law  relating
         to  nonpoint  source  water  pollution  control (Part I); to amend the
         environmental conservation law, the civil practice law and rules,  the
         general municipal law, the navigation law, the public authorities law,
         the  public  health  law,  the real property law and the state finance
 
        EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD12371-01-2


       S. 6257                             2                            A. 9759
 
         law, in relation  to  the  remediation  of  inactive  hazardous  waste
         disposal  sites  and  the cleanup and removal of petroleum discharges,
         and to repeal section 27-1316 of the  environmental  conservation  law
         and section 1389-e of the public health law relating thereto; to amend
         chapter  83  of  the  laws  of 1995 amending the state finance law and
         other laws relating to bonds, notes and revenue, in relation to making
         permanent certain  provisions  thereof;  to  amend  the  tax  law,  in
         relation  to  tax  credits  for  brownfield  redevelopment and for the
         development of remediated brownfields, 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 (Part J); to
         repeal the youth opportunity program act (Part K)
 
         The People of the State of New York, represented in Senate and  Assem-
       bly, do enact as follows:
 
    1    Section  1.  This  act enacts into law major components of legislation
    2  which are necessary to implement the state fiscal plan for the 2002-2003
    3  state fiscal year. Each component is  wholly  contained  within  a  Part
    4  identified  as Parts A through K. 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 14 of  section  13-0309  of  the  environmental
   14  conservation law, as amended by section 1 of part C of chapter 61 of the
   15  laws of 2000, is amended to read as follows:
   16    14.  The  department[, until January first, two thousand two] shall be
   17  entitled to collect fifteen cents per bushel of surf clams and ten cents
   18  per bushel of ocean quahogs taken from all certified waters to be depos-
   19  ited in the surf clam/ocean quahog account as provided in section eight-
   20  y-three of the state finance law.
   21    § 2. This act shall take effect immediately and  shall  be  deemed  to
   22  have been in full force and effect on and after January 1, 2002.
 
   23                                   PART B
 
   24    Section  1.  Section 9 of chapter 67 of the laws of 1992, amending the
   25  environmental conservation law relating to pesticide  product  registra-
   26  tion  timetables  and fees, as amended by section 2 of part C of chapter
   27  413 of the laws of 1999, is amended to read as follows:
   28    § 9. This act shall take effect April 1, 1992 provided, however,  that
   29  section  3  of this act shall take effect July 1, 1993 [and shall expire
   30  and be deemed repealed on July 1, 2002].
   31    § 2. Section 33-0705 of the environmental conservation law,  as  sepa-
   32  rately  amended by chapters 194 and 309 of the laws of 1996 and subdivi-
   33  sions a, b and c as amended by section 1 of part C of chapter 413 of the
   34  laws of 1999, is amended to read as follows:
   35  § 33-0705. Fee for registration.
 
       S. 6257                             3                            A. 9759
 
    1    The applicant for registration shall pay a fee as follows:
    2    a.  [On  or  before  July  1,  2002, one] One hundred dollars for each
    3  pesticide proposed to be registered, provided  that  the  applicant  has
    4  submitted  to  the  department proof in the form of a federal income tax
    5  return for the previous year showing gross  annual  sales,  for  federal
    6  income  tax  purposes, of three million five hundred thousand dollars or
    7  less;
    8    b. [On or before July 1, 2002  for]  For  all  others,  three  hundred
    9  dollars for each pesticide proposed to be registered[;
   10    c. After July 1, 2002, fifty dollars for each pesticide proposed to be
   11  registered].
   12    §  3.  Subdivision 2 of section 33-0901 of the environmental conserva-
   13  tion law, as amended by chapter 612 of the laws of 1983, is  amended  to
   14  read as follows:
   15    2.  Any  person  desiring  such  a  permit  shall  file an application
   16  containing such information required by the commissioner and in  a  form
   17  prescribed  by  the  commissioner.  The  commissioner  shall examine the
   18  application and shall issue or refuse  to  issue  the  permit  requested
   19  therein.  The  commissioner shall impose whatever restrictions or condi-
   20  tions on the permit he deems appropriate in order to fully  protect  the
   21  public  interest.  Such  a  permit shall not be valid for more than [two
   22  years] one year as determined by the commissioner. A separate permit  is
   23  required  for each location in the state, and a fee for each location in
   24  the state of one hundred fifty dollars is required.
   25    § 4. Paragraph d of subdivision 3 of section 33-0905 of  the  environ-
   26  mental conservation law, as added by chapter 612 of the laws of 1983, is
   27  amended to read as follows:
   28    d.  Pesticide  applicator certifications shall be valid for [six] five
   29  years after which every applicator  shall  recertify  according  to  the
   30  requirements then in effect. Certification identification cards shall be
   31  valid for [three years] one year.
   32    §  5.  Section 33-0911 of the environmental conservation law, as added
   33  by chapter 612 of the laws of 1983, is amended to read as follows:
   34  § 33-0911. Certification and registration fees.
   35    1. Every applicant for pesticide applicator certification shall pay an
   36  examination fee of [ten] fifty dollars for each examination.
   37    2. [Fees] Annual fees for pesticide applicator [certificates]  certif-
   38  ication shall be [fifteen] seventy-five dollars for commercial pesticide
   39  applicator  certification in [each] one individual category, twenty-five
   40  dollars for each additional category and [five] twenty-five dollars  for
   41  each  additional  sub-category  chosen.  For private applicators [a] the
   42  annual fee [of] shall be  fifteen  dollars  for  the  initial  certified
   43  private  applicator  and  five dollars for subsequent applicators on the
   44  same [form of] farm or business [shall be charged at the time of initial
   45  certification, renewal of certification or recertification].
   46    3. Pesticide businesses shall pay an annual registration  fee  of  one
   47  hundred  fifty  dollars. When the applicant regularly maintains or oper-
   48  ates more than one business address a fee may be required  for  each  of
   49  the  applicant's  business addresses in the state. Any agency which is a
   50  state agency, municipal corporation, public authority, or college  shall
   51  be exempt from any fee for registration.
   52    §  6.  This act shall take effect April 1, 2002; provided, however, if
   53  this act shall become a law after such date it shall take  effect  imme-
   54  diately and shall be deemed to have been in full force and effect on and
   55  after April 1, 2002.
 
       S. 6257                             4                            A. 9759
 
    1                                   PART C
 
    2    Section  1.  Section  251-z-3  of  the agriculture and markets law, as
    3  amended by chapter 233 of the laws  of  1996,  is  amended  to  read  as
    4  follows:
    5    § 251-z-3. Licenses; fees.  No person shall maintain or operate a food
    6  processing establishment unless licensed [biennially] by the commission-
    7  er.    Application for a license to operate a food processing establish-
    8  ment shall be made, upon a form prescribed by the  commissioner,  on  or
    9  before the fifteenth of the month preceding the applicable license peri-
   10  od  as  herein  prescribed.  The  beginning of the license period for an
   11  applicant shall be determined by the alphabetical order of an individual
   12  applicant's surname or the first word in the name  of  any  other  legal
   13  entity. The license period shall begin February fifteenth for applicants
   14  A  through D, May fifteenth for applicants E through K, August fifteenth
   15  for applicants L through R, November fifteenth for applicants S  through
   16  Z.    [For  the  license periods beginning September fifteenth, nineteen
   17  hundred ninety-six through September fifteenth, nineteen  hundred  nine-
   18  ty-eight, the commissioner is authorized to stagger license renewals.]
   19    The  applicant  shall  furnish  evidence of his or her good character,
   20  experience and competency, that the establishment has  adequate  facili-
   21  ties and equipment for the business to be conducted, that the establish-
   22  ment  is such that the cleanliness of the premises can be maintained and
   23  that the product produced  therein  will  not  become  adulterated.  The
   24  commissioner,  if  so  satisfied,  shall  issue  to  the applicant, upon
   25  payment of the license fee of [seventy] one hundred dollars,  a  license
   26  to  operate  the food processing establishment described in the applica-
   27  tion for [two years] one year from the applicable  license  commencement
   28  period set forth hereinabove. The commissioner shall prorate the license
   29  fee  for any person applying for a new license after the commencement of
   30  the license period for such applicant's alphabetical group.
   31    Notwithstanding any other  provision  of  law  to  the  contrary,  the
   32  commissioner  is  hereby  authorized  and  directed to deposit all money
   33  received pursuant to this section in an account within the miscellaneous
   34  special revenue fund.
   35    § 2. This act shall take effect immediately.
 
   36                                   PART D
 
   37    Section 1. Subdivisions 1 and 2 of section 97-nn of the state  finance
   38  law,  as amended by chapter 138 of the laws of 1998, are amended to read
   39  as follows:
   40    1. There is hereby established in the joint custody of the commission-
   41  er of parks, recreation and historic preservation and  the  state  comp-
   42  troller  a special fund to be known as the "I love NY waterways" boating
   43  safety fund. The moneys in such fund shall be available  upon  appropri-
   44  ation to the office of parks, recreation and historic preservation for:
   45    (a)  the  administration and enforcement of the boating safety program
   46  including payments to counties for expenditures incurred  in  connection
   47  with  such  county's waterway boating safety program pursuant to section
   48  seventy-nine-b of the navigation law, including costs and expenses inci-
   49  dental and appurtenant thereto; and
   50    (b) the creation, enhancement or maintenance  of  state  or  municipal
   51  facilities  or  services  to provide boating access to the waters of the
   52  state, provided that the state share of the cost of any project for  the
 
       S. 6257                             5                            A. 9759
 
    1  creation, enhancement or maintenance of municipal facilities or services
    2  shall not exceed fifty percent of such cost.
    3    2. The "I love NY waterways" boating safety fund shall consist of:
    4    (a)  the  revenues  required  to  be deposited therein pursuant to the
    5  provisions of sections seventy-eight and two hundred one of the  naviga-
    6  tion  law, and all other moneys credited or transferred thereto from any
    7  other fund or source pursuant to law; and
    8    (b) the vessel access subaccount consisting of  the  revenues  derived
    9  from  the  vessel  access  surcharge  collected upon the registration of
   10  vessels pursuant to section twenty-two hundred fifty-one of the  vehicle
   11  and traffic law.
   12    §  2. Subdivision 3 of section 2251 of the vehicle and traffic law, as
   13  added by chapter 484 of the laws of 1985, is amended to read as follows:
   14    3. Fees. The triennial fee for registration  of  a  vessel  shall  be:
   15  [nine]  eighteen dollars and a vessel access surcharge of three dollars,
   16  if less than sixteen feet in length; [eighteen] thirty-six dollars and a
   17  vessel access surcharge of ten dollars, if sixteen feet or over but less
   18  than twenty-six feet in length; [thirty]  sixty  dollars  and  a  vessel
   19  access  surcharge  of  fifteen dollars, if twenty-six feet or over.  All
   20  funds derived from the collection of the vessel access surcharge  pursu-
   21  ant  to  this subdivision are to be deposited in a sub-account of the "I
   22  love NY waterways" boating safety fund established pursuant  to  section
   23  ninety-seven-nn  of  the  state finance law. The vessel access surcharge
   24  shall not be considered a  registration  fee  for  purposes  of  section
   25  seventy-nine-b of the navigation law.
   26    §  3.  This  act shall take effect on the ninetieth day after it shall
   27  have become a law.
 
   28                                   PART E
 
   29    Section 1. Subdivision 2 of section 129 of the agriculture and markets
   30  law, as added by chapter 816 of the laws of 1974, is amended to read  as
   31  follows:
   32    2.  No person shall distribute in this state any pet food or specialty
   33  pet food unless the brand thereof has been registered  pursuant  to  the
   34  provisions  of  this  section. An application for such registration of a
   35  pet food or specialty pet food shall be accompanied  by  a  registration
   36  fee  of  [twenty-five] one hundred dollars for each brand to be distrib-
   37  uted, said fee to be paid annually thereafter. If any  brand  of  a  pet
   38  food  or specialty pet food changes in any way after such brand has been
   39  registered, a new application therefor shall be  made  pursuant  to  the
   40  provisions of this section.
   41    §  2. Subdivision 2 of section 195 of the agriculture and markets law,
   42  as added by chapter 874 of the laws of  1977,  is  amended  to  read  as
   43  follows:
   44    2.  Upon  application,  a  weighmaster's  license may be issued by the
   45  commissioner to an employee of a person,  firm,  partnership  or  corpo-
   46  ration whose business requires, by contract or otherwise, that materials
   47  or  commodities  manufactured, produced, distributed, sold or handled by
   48  such person, firm, partnership or corporation be weighed by  a  licensed
   49  weighmaster;  or  such license may be issued to an individual engaged in
   50  the weighing of materials or commodities.  The applicant  shall  furnish
   51  satisfactory  evidence  of  good character and of ability to weigh accu-
   52  rately and to  make  correct  weight  tickets.  He  shall  also  furnish
   53  evidence that he owns, leases or has access to a stationary scale within
   54  the  state  suitable  for  weighing  the  materials or commodities to be
 
       S. 6257                             6                            A. 9759
 
    1  weighed by him or that he is regularly employed by a person, firm, part-
    2  nership or corporation who owns, leases or has access to  such  a  scale
    3  which  has  been  tested and sealed by the weights and measures official
    4  charged  with  such duty. The applicant shall pay a fee of [ten] fifteen
    5  dollars. A license shall be for a period not exceeding three  years  and
    6  may be renewed in the discretion of the commissioner upon payment of the
    7  fee  aforesaid. Such license shall be kept at the place where the weigh-
    8  master is engaged in weighing and shall be open to inspection. An appli-
    9  cation may be denied or a license may be revoked  by  the  commissioner,
   10  after  a  hearing  upon  due  notice  to  the applicant or licensee, for
   11  dishonesty, incompetency, inaccuracy or a violation of the provisions of
   12  this article or the rules and regulations adopted pursuant thereto.
   13    § 3. This act shall take effect immediately and  shall  be  deemed  to
   14  have been in full force and effect on and after April 1, 2002.
 
   15                                   PART F
 
   16    Section  1.  Section 6 of chapter 259 of the laws of 2000 amending the
   17  general business law, the agriculture and  markets  law  and  the  state
   18  finance  law, relating to registration and regulation of pet dealers, is
   19  amended to read as follows:
   20    § 6.  This act shall take effect immediately; provided  that  sections
   21  one, two and three of this act shall take effect 180 days after it shall
   22  have  become  a  law;  and sections four and five of this act shall take
   23  effect April 1, [2002] 2003; provided, further, that any rules and regu-
   24  lations necessary for the timely  implementation  of  this  act  on  its
   25  effective date shall be promulgated on or before such date.
   26    § 2. This act shall take effect immediately.
 
   27                                   PART G
 
   28    Section  1.  Subdivision  2  of  section  3-0113  of the environmental
   29  conservation law, as amended by chapter 62  of  the  laws  of  1989,  is
   30  amended to read as follows:
   31    2.  Any  [county,  city,  town  or  village clerk who] entity which is
   32  authorized by section 11-0713 of this chapter to sell hunting,  trapping
   33  and  fishing  licenses  is  hereby authorized, but not required, to sell
   34  annual subscriptions to the department's  official  magazine,  "The  New
   35  York  State  Conservationist."  The fee to be charged [by a clerk] for a
   36  subscription to such magazine shall be such fee as the commissioner may,
   37  after consultation with the division of the budget, deem  necessary  for
   38  the  best  interest  of  the  state. Such fee shall be collected [by the
   39  clerk] from each subscriber at the time  of  receiving  application  for
   40  subscription.  [Each  clerk  shall remit direct to the department on the
   41  first and fifteenth of  each  month  all  fees  collected  by  him  from
   42  subscribers,  less  fifty  cents  for each year's subscription obtained,
   43  which he shall be entitled to retain. Subscription applications,  filled
   44  out to indicate the names and addresses of the persons to whom the maga-
   45  zine  is  to  be  sent, shall also be forwarded to the department by the
   46  clerks on the first of each month. The fifty  cents  which  a  clerk  is
   47  authorized  to  deduct  from  each year's subscription obtained shall be
   48  subject to laws providing for the disposition of other fees arising from
   49  the performance of his official duties as  clerk]  All  collected  fees,
   50  minus a 5.5 percent commission, shall be remitted monthly, on a schedule
   51  to be determined by the department.  All receipts of the department from
   52  subscriptions  shall  be  deposited  in  an account in the miscellaneous
 
       S. 6257                             7                            A. 9759
 
    1  special revenue fund-other. The comptroller is authorized  and  directed
    2  to  permit interest earnings on any balances to accrue to the benefit of
    3  this account.
    4    § 2.  Subdivision 13 of section 11-0305 of the environmental conserva-
    5  tion  law is REPEALED and subdivisions 14, 15, 16 and 17, subdivision 14
    6  as renumbered by chapter 911 of the laws of 1990, are renumbered  subdi-
    7  visions 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 department shall, by rule, establish the fee for the habitat
   14  stamp  which shall not exceed five dollars plus an additional amount for
   15  the issuing agent or officer. The purchase of a stamp is voluntary and a
   16  stamp need not be possessed in order to take fish or wildlife.
   17    § 4. Paragraph (a) of subdivision 3 of section 11-0327 of the environ-
   18  mental conservation law, as added by chapter 308 of the laws of 1994, is
   19  amended to read as follows:
   20    (a) To review the allocations and expenditures of the  department  for
   21  fish  and wildlife purposes as provided in section 11-0303 of this title
   22  and report to the commissioner by [July  first]  November  fifteenth  of
   23  each year. [The commissioner shall, by August first of each year, submit
   24  such  report,  in  its  entirety,  to  the governor, the legislature and
   25  interested individuals and organizations.] To assist the  board  in  its
   26  review, the department shall by September first of each year make avail-
   27  able  to  the  board current and anticipated income and expenditures for
   28  the fish and wildlife programs, including planned expenditures  by  time
   29  and  activity  code  for the next fiscal year. Such report shall include
   30  the findings of  the  advisory  board  regarding  such  allocations  and
   31  expenditures, including expenditures and appropriations from the conser-
   32  vation fund and the extent to which such expenditures and appropriations
   33  are  consistent  with  the  requirements of state law.  The report shall
   34  also include recommended maximum annual fees for the licenses and stamps
   35  identified in subdivision 3 of  section  11-0715  of  this  article.  In
   36  recommending such fees the board shall consider economic indicators, the
   37  status  of  the conservation fund, and such program indicators as it may
   38  deem appropriate. The commissioner shall  submit  such  report,  in  its
   39  entirety, to the governor and the legislature.
   40    § 5. Subparagraph 1 of paragraph a of subdivision 2 of section 11-0701
   41  of the environmental conservation law is REPEALED and a new subparagraph
   42  1 is added to read as follows:
   43    (1)  A small and big game license entitles the resident holder to hunt
   44  wildlife subject to the following:
   45    (i) a holder who is eighteen years of age or older may  hunt  wildlife
   46  as provided in title 9 of this article,
   47    (ii)  a holder who is sixteen years of age or older may hunt wildlife,
   48  except big game, as provided in title 9 of this article, and
   49    (iii) a holder who is between the ages of  sixteen  and  eighteen  may
   50  hunt  big  game  pursuant  to  the provisions of title 9 of this article
   51  while the holder is accompanied by a parent, guardian or person over the
   52  age of eighteen as required by section 11-0929 of this article.
   53    A holder may take fish with a gun or longbow as provided in  titles  9
   54  and 13 of this article.
   55    §  6.  Paragraph b of subdivision 2 of section 11-0701 of the environ-
   56  mental conservation law is amended to read as follows:
 
       S. 6257                             8                            A. 9759
 
    1    b. A special antlerless deer license is applicable to the  hunting  of
    2  wild antlerless deer in a special open season fixed pursuant to subdivi-
    3  sion 6 of section 11-0903 of this article in a tract within a Wilderness
    4  Hunting Area and entitles the holder of a [big game license who is enti-
    5  tled to hunt wild deer as provided in paragraph a] license which author-
    6  izes the holder to hunt big game to hunt antlerless deer in such special
    7  open  season,  as  provided  in title 9 of this article if he has on his
    8  person while so hunting both his [big game] license which authorizes the
    9  holder to hunt big game and his special antlerless deer license.
   10    § 7. Paragraph c of subdivision 2 of section 11-0701 of  the  environ-
   11  mental  conservation  law, as amended by chapter 57 of the laws of 1993,
   12  is amended to read as follows:
   13    c. A junior archery license entitles a resident holder who is  between
   14  the ages of fourteen and sixteen years to hunt wild deer and bear with a
   15  longbow  during the special archery season and during the regular season
   16  [in areas restricted to bowhunting only], as provided in title 9 of this
   17  article, as if such person held a [big game]  license  which  authorizes
   18  the  holder to hunt big game with a bowhunting stamp affixed, subject to
   19  the provisions of section 11-0929  and  subdivision  [6]  3  of  section
   20  11-0713  of  this  article.    It  entitles a non-resident holder who is
   21  between the ages of fourteen and sixteen years to  hunt  wild  deer  and
   22  bear  with  a  longbow  during the special archery season and during the
   23  regular season [in areas restricted to bowhunting only], as provided  in
   24  title  9 of this article, as if such person held a non-resident bowhunt-
   25  ing license, a non-resident license which authorizes the holder to  hunt
   26  deer  and  a non-resident bear tag, subject to the provisions of section
   27  11-0929 and subdivision [six] 3 of section 11-0713 of this article.
   28    § 8. Paragraphs d and e of subdivision 2 of  section  11-0701  of  the
   29  environmental conservation law are REPEALED.
   30    §  9.  Subdivision 3 of section 11-0701 of the environmental conserva-
   31  tion law, as amended by chapter 160 of the laws of 1979, is  amended  to
   32  read as follows:
   33    3.  A  bowhunting  stamp when affixed to a [big game] resident license
   34  which authorizes the holder to hunt big game entitles a  holder  who  is
   35  eighteen  years  of age or older to hunt wild deer and bear with a long-
   36  bow, as provided in title 9  of  this  article,  in  a  special  longbow
   37  season,  and it entitles a holder who is between the ages of sixteen and
   38  eighteen years to exercise the same privileges subject to the provisions
   39  of section 11-0929 and subdivision [6] 3  of  section  11-0713  of  this
   40  article.
   41    §  10. Subdivision 5 of section 11-0701 of the environmental conserva-
   42  tion law, as amended by chapter 57 of the laws of 1993,  is  amended  to
   43  read as follows:
   44    5.  a.  A  combined resident [hunting,] fishing and small and big game
   45  license hereinafter in this article referred to as a sportsman  license,
   46  entitles the holder to the privileges the holder would have if the hold-
   47  er  held  separately  a [hunting, a] fishing license and a small and big
   48  game license.
   49    b. A combined resident fishing, small and  big  game,  bowhunting  and
   50  muzzle-loading  license,  hereinafter  in  this article referred to as a
   51  resident super-sportsman license, entitles the holder to the  privileges
   52  the holder would have if the holder held separately a fishing license, a
   53  small  and big game license, a bowhunting stamp, a muzzle-loading stamp,
   54  and a turkey permit.
   55    § 11. Subdivision 6 of section 11-0701 of the environmental  conserva-
   56  tion  law,  as  amended by chapter 646 of the laws of 1977 and as renum-
 
       S. 6257                             9                            A. 9759
 
    1  bered by chapter 208 of the laws of 1978 and the  opening  paragraph  as
    2  redesignated  by  chapter 450 of the laws of 1991, is amended to read as
    3  follows:
    4    6.  A  [combination] free [hunting-big game hunting-fishing] sportsman
    5  license entitles the holder to the privileges [he] the holder would have
    6  if [he] the holder held[,] separately[,] a [hunting,] small and big game
    7  [hunting] license and a fishing license[, provided, however, if the said
    8  combination free hunting-big game hunting-fishing license is stamped  by
    9  the  issuing  clerk  "FISHING  ONLY"  the holder is entitled only to the
   10  privileges he would have if he 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.
   27    § 15. Subdivision 12 of section 11-0701 of the environmental conserva-
   28  tion law, as added by chapter 450 of the laws of 1991 and as  renumbered
   29  by chapter 470 of the laws of 1994, is amended to read as follows:
   30    12.  a.  A junior [hunting] small game license entitles the holder age
   31  twelve to age [sixteen] thirteen to hunt [small game]  wildlife,  except
   32  big  game, as provided in title 9 of this article subject, specifically,
   33  to the provisions of section 11-0929 of this article. It  entitles  such
   34  holder  to  possess  firearms as provided in section 265.05 of the penal
   35  law.
   36    b. A junior small and big game license entitles the holder  age  four-
   37  teen  to  age sixteen to hunt wildlife, except big game, pursuant to the
   38  provisions of title 9 of this article and to hunt big  game  during  the
   39  special muzzle-loading season and during the regular season, as provided
   40  in  title  9  of  this  article,  as if such person held a license which
   41  authorizes the holder to hunt  big  game  with  a  muzzle-loading  stamp
   42  affixed,  provided  that the holder is accompanied by a parent, guardian
   43  or person over the age of eighteen as required  by  section  11-0929  of
   44  this article.
   45    §  16.  Subdivisions  13, 14 and 15 of section 11-0701 of the environ-
   46  mental conservation law, as added by chapter 57 of the laws of 1993  and
   47  as renumbered by chapter 470 of the laws of 1994, are amended to read as
   48  follows:
   49    13.  A  non-resident  bowhunting license entitles a person who has not
   50  been a resident of the state for more than thirty days to hunt wild deer
   51  with a longbow in a special  longbow  season  [and  during  the  regular
   52  season]  as provided [for] in title 9 of this article and, when accompa-
   53  nied by a non-resident bear tag, entitles the holder to hunt bear with a
   54  longbow during the open bear season.
   55    14. A non-resident muzzle-loading license entitles a  person  who  has
   56  not  been a resident of the state for more than thirty days to hunt wild
 
       S. 6257                            10                            A. 9759
 
    1  deer with a [muzzleloader] muzzle-loading firearm in a  special  muzzle-
    2  loading  season  [and  during  the  regular season] as provided [for] in
    3  title 9 of this article and, when accompanied  by  a  non-resident  bear
    4  tag,  entitles  the  holder  to hunt bear with a muzzleloader during the
    5  open bear season.
    6    15. A non-resident combined hunting, fishing, big game, bowhunting and
    7  muzzle-loading license, hereinafter in this article  referred  to  as  a
    8  non-resident super-sportsman license, entitles a person who has not been
    9  a resident of the state for more than thirty days to the privileges that
   10  the holder would have if the holder held separately a non-resident hunt-
   11  ing  license,  a  non-resident  fishing license, a non-resident big game
   12  license,  a  non-resident  bowhunting  [and]  license,  a   non-resident
   13  muzzle-loading  license[,  except that only one bear may be taken] and a
   14  non-resident turkey permit.
   15    § 17. Section 11-0701 of the environmental conservation law is amended
   16  by adding two new subdivisions 16 and 17 to read as follows:
   17    16. A conservation legacy license entitles the holder  to  fish,  hunt
   18  wildlife,  hunt  big  game  with  a longbow and a muzzle-loading firearm
   19  during special seasons therefor, hunt turkey, enjoy the  benefits  of  a
   20  voluntary habitat stamp and receive the "New York State Conservationist"
   21  magazine  as  if  the  holder of such license held separately a resident
   22  super-sportsman license, a voluntary habitat stamp and a subscription to
   23  the "New York State Conservationist" magazine.
   24    17. A conservation patron license entitles the holder to the  benefits
   25  of  a  voluntary  habitat  stamp  and  a subscription to "New York State
   26  Conservationist" magazine as if the holder of such  license  held  sepa-
   27  rately  a  voluntary  habitat  stamp and a subscription to the "New York
   28  State Conservationist" magazine.
   29    § 18. Subdivisions 1 and 2 of section  11-0702  of  the  environmental
   30  conservation  law, subdivision 1 as amended by chapter 57 of the laws of
   31  1993, paragraph a of subdivision 1 as amended by chapter 245 of the laws
   32  of 1995 and subdivision 2 as added by chapter 352 of the laws  of  1987,
   33  are amended to read as follows:
   34    1.  There  are hereby created the following lifetime hunting, fishing,
   35  trapping, archery and muzzle-loading licenses and fees therefor  subject
   36  to  the  same  privileges  and  obligations  of  a comparable short term
   37  license:
 
   38                Licenses                               Fees
   39         a. Lifetime [resident combined
   40       hunting, fishing and big game]
   41       sportsman license and
   42       turkey permit. If purchased,
   43       for a  child four years of age or younger      [$250.00] $300.00
 
   44         for a child age five through
   45       eleven years of age                            [$350.00] $420.00
 
   46         for a person age twelve through
   47       sixty-four years of age                        [$500.00] $600.00
 
   48         for a person age sixty-five
   49       and over.                                      $ 50.00
 
   50         b. Lifetime [resident hunting]
   51       small and big game license.                    [$250.00] $350.00
 
       S. 6257                            11                            A. 9759
 
    1         c. Lifetime [resident] fishing
    2       license.                                       [$250.00] $350.00
 
    3         d. Lifetime [resident] trapping
    4       license.                                       [$250.00] $300.00
 
    5         e. Lifetime [resident] archery
    6       stamp.                                         [$125.00] $180.00
 
    7         f. Lifetime [resident] muzzle-
    8       loading stamp.                                 [$125.00] $180.00
 
    9         [g. Lifetime resident big game hunting
   10       license.                                       $250.00]
 
   11    The  holder  of  a  lifetime  [resident  hunting,]  small and big game
   12  license or fishing license may, at any time, convert such license  to  a
   13  lifetime  [resident  combined  hunting,  fishing and big game] sportsman
   14  license and turkey permit for an additional fee equal  to  the  existing
   15  differential.
   16    2.   Legal residency within the state of New York shall be a prerequi-
   17  site for persons to obtain, or have  obtained  for  them,  any  lifetime
   18  licenses  included  within this section.   Lifetime licenses so obtained
   19  shall continue to be valid for use within the state  by  the  person  to
   20  whom the lifetime license was issued, regardless of a change in residen-
   21  cy  of that lifetime license holder.  Holders of lifetime licenses which
   22  include lifetime big game privileges who  become  non-residents  of  the
   23  state  may  continue  to  obtain  resident bowhunting and muzzle-loading
   24  stamps, including lifetime archery and muzzle-loading stamps. Holders of
   25  lifetime licenses which include bowhunting and muzzle-loading privileges
   26  who become non-residents of the state may continue  to  obtain  resident
   27  big  game privileges, including lifetime sportsman or small and big game
   28  licenses. An annual turkey permit will be granted at no  additional  fee
   29  as  an additional privilege of all existing lifetime sportsman licenses.
   30  Possession of lifetime licenses is nontransferable.
   31    § 19. Paragraph c of subdivision 3 of section 11-0702 of the  environ-
   32  mental conservation law, as added by chapter 352 of the laws of 1987 and
   33  such  subdivision  as  renumbered by chapter 626 of the laws of 1988, is
   34  amended to read as follows:
   35    c. (i) for the replacement of a lost license upon application  with  a
   36  notarized  affidavit and a fee of five dollars[; (ii) for individualized
   37  selection, up to six digits, of a lifetime license serial number for  an
   38  additional   fee   of  five  dollars;  and  (iii)]  and  (ii)  for  gift
   39  inscriptions, up to twenty-three characters, on lifetime licenses for an
   40  additional fee of five dollars;
   41    § 20. Subdivision 2 of section 11-0703 of the environmental  conserva-
   42  tion  law,  as  amended by chapter 57 of the laws of 1993, is amended to
   43  read as follows:
   44    2. No license, permit, tag or stamp is transferable. No  person  shall
   45  alter,  change,  lend  to  another or attempt to transfer to another any
   46  license or any button, permit, tag or stamp issued therewith. No person,
   47  while hunting, shall possess a license, button,  permit,  tag  or  stamp
   48  which  was  issued  to another person unless actually accompanied by the
   49  person to whom such license, button, permit, tag or stamp was issued. No
   50  person shall purchase, possess or use  more  than  one  junior  archery,
   51  junior small and big game, small and big game, big game, [combined resi-
 
       S. 6257                            12                            A. 9759
 
    1  dent  hunting, fishing and big game] bowhunting, muzzle-loading, sports-
    2  man, or resident super-sportsman license or stamp, non-resident bowhunt-
    3  ing  or  muzzle-loading  license,  [combined]   non-resident   [hunting,
    4  fishing,   big  game,  bowhunting  and  muzzle-loading]  super-sportsman
    5  license, non-resident bear tag or special permit for the current license
    6  year, except as permitted by [rule or] regulation of the department.
    7    § 21. Subdivision 4 of section 11-0703 of the environmental  conserva-
    8  tion  law,  as amended by chapter 450 of the laws of 1991, paragraphs a,
    9  b, c and d as amended by chapter 57 of the laws of 1993 and paragraph  e
   10  as  relettered by chapter 470 of the laws of 1994, is amended to read as
   11  follows:
   12    4. a. [Five-day] Non-resident fishing [licenses, combined],  non-resi-
   13  dent  [hunting, fishing, big game, bowhunting and muzzle-loading] super-
   14  sportsman, non-resident bowhunting or muzzle-loading [and], or non-resi-
   15  dent trapping licenses [and], or non-resident  bear  tags  are  issuable
   16  only  to non-residents and persons who have been residents for less than
   17  thirty days immediately preceding the date of application.
   18    b. A person under the age of  fourteen  years  is  ineligible  for  [a
   19  junior  archery license] any license which authorizes the holder to hunt
   20  big game.  A person under the age of sixteen years is ineligible  for  a
   21  small  and big game [license], [a combined resident hunting, fishing and
   22  big game license]  sportsman  or  resident  super-sportsman,  [combined]
   23  non-resident  [hunting,  fishing, big game, bowhunting, and muzzle-load-
   24  ing] super-sportsman, non-resident big game,  or  non-resident  bowhunt-
   25  ing[,  non-resident]  or  muzzle-loading  license, [a] or muzzle-loading
   26  [stamp] or [a] bowhunting stamp. A person is ineligible for  a  hunting,
   27  small  and  big  game, junior small game, junior small and big game, big
   28  game, junior archery, [combined resident hunting, fishing and big  game]
   29  sportsman  and  resident super-sportsman, [combined] non-resident [hunt-
   30  ing, fishing, big game, bowhunting and muzzle-loading]  super-sportsman,
   31  or  non-resident  bowhunting  or  [non-resident]  muzzle-loading license
   32  unless [he] such person meets the requirements of subdivision [6]  3  of
   33  section 11-0713 of this article.
   34    c.  Only  the following persons are eligible for [a combined] resident
   35  [hunting, fishing and big game license] licenses: (1) persons  who  have
   36  been  residents  in  the  state  for  more  than thirty days immediately
   37  preceding the date of application for the licenses, or who are  enrolled
   38  in  a  full-time  course at a college or university within the state and
   39  who are in residence in the state for the school year, or who are out of
   40  state or foreign exchange high school students enrolled in  a  full-time
   41  course in a high school within the state and who are in residence in the
   42  state  for  the  school year; (2) Indian residents or members of the six
   43  nations residing on any reservation wholly or partly within  the  state;
   44  (3)  members  of  the  United  States  armed  forces  in active service,
   45  stationed in this state, regardless of the place  of  residence  at  the
   46  time  of entry into the service; and (4) persons privileged under subdi-
   47  vision 5 of section 11-0707 of this article to take wildlife, other than
   48  deer and bear, as if they held hunting licenses.
   49    d. Only persons who possess a [resident] small and  big  game  license
   50  [or],  the  big game license portion of the [combination] free [hunting-
   51  big game hunting-fishing license] sportsman, or [the  combined  resident
   52  hunting,  fishing  and big game] a sportsman or resident super-sportsman
   53  license are eligible for a  bowhunting  [stamp]  or  [a]  muzzle-loading
   54  stamp.
   55    e.  A  person under the age of twelve years is ineligible for a junior
   56  [hunting] small game license.
 
       S. 6257                            13                            A. 9759
 
    1    § 22. Paragraph a of subdivision 5 of section 11-0703 of the  environ-
    2  mental  conservation law, as amended by chapter 237 of the laws of 1993,
    3  is amended to read as follows:
    4    a.  One-day[,  three-day]  and  [five-day]  seven-day fishing licenses
    5  expire on the date stated on them.
    6    § 23. Subdivision 6 of section 11-0703 of the environmental  conserva-
    7  tion  law, as added by chapter 57 of the laws of 1993 and subparagraph 4
    8  of paragraph a as renumbered by chapter 470 of  the  laws  of  1994,  is
    9  amended to read as follows:
   10    6.  a.  Except  as  provided in section 11-0707 and section 11-0709 of
   11  this article, no person shall (1) hunt  wildlife,  other  than  deer  or
   12  bear,  or take fish with a gun, unless such person holds and is entitled
   13  to exercise the privileges of  a  hunting,  [combination]  junior  small
   14  game,  junior  small and big game, small and big game, free [hunting-big
   15  game hunting-fishing license] sportsman, [a combined  resident  hunting,
   16  fishing  and big game license] sportsman or resident super-sportsman, or
   17  [a combined] non-resident [hunting, fishing, big  game,  bowhunting  and
   18  muzzle-loading]  super-sportsman  license; (2) hunt antlerless deer in a
   19  special open season  therefor  pursuant  to  subdivision  6  of  section
   20  11-0903  of  this  article  unless  such person holds and is entitled to
   21  exercise the privileges of and has on his or her person while so hunting
   22  [both] a small and big game, big game [or], junior small and  big  game,
   23  junior  archery  [license  or combination], free [hunting-big game hunt-
   24  ing-fishing license] sportsman, [or a combined resident hunting, fishing
   25  and big game license] sportsman, [or combined] resident super-sportsman,
   26  non-resident [hunting, fishing, big game, bowhunting and muzzle-loading]
   27  super-sportsman or non-resident bowhunting  or  muzzle-loading  license,
   28  and  a  special  antlerless  deer license; (3) take fish or frogs in the
   29  manner described in subdivision 4 of section  11-0701  of  this  article
   30  unless  such  person is entitled to exercise the privileges of a fishing
   31  license; (4) trap wildlife unless such person holds a trapping license.
   32    b. Except as provided in section 11-0707 and section 11-0709  of  this
   33  article, no resident shall (1) hunt wild deer or bear unless such person
   34  holds  and  is  entitled  to  exercise the privileges of a small and big
   35  game, junior archery [or combination], junior small and big game,   free
   36  [hunting-big  game  hunting-fishing  license]  sportsman, [or a combined
   37  resident hunting, fishing and big game] sportsman,  or  resident  super-
   38  sportsman  license,  and meets the requirements of [subdivisions 2 and 3
   39  of section 11-0701 or subdivision 2 or 4 of section 11-0715] this  arti-
   40  cle;  (2)  hunt  wild  deer  or bear with a longbow in a special longbow
   41  season unless such person holds and is entitled to exercise  the  privi-
   42  leges of a small and big game [license or combination], junior small and
   43  big   game,  junior  archery,  free  [hunting-big  game  hunting-fishing
   44  license] sportsman, [or a combined resident  hunting,  fishing  and  big
   45  game]  sportsman,  or resident super-sportsman license with a bowhunting
   46  stamp affixed [or junior archery license] and meets the requirements  of
   47  [subdivisions  2  and  3  of  section  11-0701  or subdivision 2 or 4 of
   48  section 11-0715] this article; or (3) hunt wild  deer  or  bear  with  a
   49  muzzle-loading firearm in a special muzzle-loading firearm season unless
   50  such  person holds a small and big game, [or combination] free [hunting-
   51  big game hunting-fishing license or a combined resident hunting, fishing
   52  and big game] sportsman,  sportsman,  resident  super-sportsman  license
   53  with  a  muzzle-loading  stamp  affixed,  or  junior  small and big game
   54  license and meets the requirements of [subdivision 2 of section 11-0701]
   55  this article.
 
       S. 6257                            14                            A. 9759
 
    1    c. Except as provided in section 11-0707 and section 11-0709  of  this
    2  article,  no  non-resident  shall  (1) hunt wild deer unless such person
    3  holds and is entitled to exercise the privileges of a big  game,  junior
    4  archery,  [a combined] junior small and big game, non-resident [hunting,
    5  fishing,   big  game,  bowhunting  and  muzzle-loading]  super-sportsman
    6  [license],  or  non-resident  bowhunting  [license]  or   [non-resident]
    7  muzzle-loading  license;  (2) hunt wild deer with a longbow in a special
    8  longbow season unless such person holds and is entitled to exercise  the
    9  privileges  of  a  [combined]  non-resident [hunting, fishing, big game,
   10  bowhunting and muzzle-loading] super-sportsman, [license or a] non-resi-
   11  dent bowhunting [license], or [a] junior archery license; (3) hunt  wild
   12  deer  with  a muzzle-loading firearm in a special muzzle-loading firearm
   13  season unless such person holds a [combined] junior small and big  game,
   14  non-resident  [hunting, fishing, big game bowhunting and muzzle-loading]
   15  super-sportsman [license] or [a]  non-resident  muzzle-loading  license;
   16  (4)  hunt  wild bear unless such person holds a junior archery or junior
   17  small and big game, license or a non-resident bear  tag  in  combination
   18  with  one  of the non-resident deer licenses listed in subparagraph 1, 2
   19  or 3 of this paragraph.
   20    § 24. Paragraphs a, b and d of subdivision 2 of section 11-0705 of the
   21  environmental conservation law, paragraphs a and b as amended by chapter
   22  57 of the laws of 1993 and paragraph d as amended by chapter 209 of  the
   23  laws of 1980, are amended to read as follows:
   24    a.  Holders of a [hunting, junior hunting, combined non-resident hunt-
   25  ing, fishing, big game, bowhunting and muzzle-loading, combination  free
   26  hunting-big  game  hunting-fishing license or combined resident hunting,
   27  fishing and big game] license which authorizes the holder to hunt  wild-
   28  life other than big game, while exercising the privileges of [a hunting]
   29  such  license,  shall  have  the  [hunting license] back tag issued with
   30  their license attached to and displayed on the back of the outer garment
   31  between the shoulders in such manner that all figures are plainly  visi-
   32  ble at all times.
   33    b.  Holders of a [big game, combination free hunting-big game hunting-
   34  fishing, combined resident hunting, fishing and big game, combined  non-
   35  resident  hunting,  fishing,  big  game,  bowhunting and muzzle-loading,
   36  non-resident bowhunting or muzzle-loading  or  junior  archery]  license
   37  which authorizes the holder to hunt big game, while hunting wild deer or
   38  bear,  shall have the [big game, combination free hunting-big game hunt-
   39  ing-fishing or junior archery license] back tag issued with  their  [big
   40  game,  combination free hunting-big game hunting-fishing, combined resi-
   41  dent hunting, fishing and big game, combined non-resident hunting, fish-
   42  ing, big game, bowhunting and muzzle-loading, non-resident bowhunting or
   43  muzzle-loading or junior archery] license so attached and displayed.
   44    d. Notwithstanding the provisions of paragraphs a, b  and  c  of  this
   45  subdivision, a [hunting] license holder shall not be required to display
   46  such license tag in the Northern Zone or the Catskill Park.
   47    §  25. Subdivision 2 of section 11-0709 of the environmental conserva-
   48  tion law is amended to read as follows:
   49    2. Whenever taking of destructive or menacing wildlife  is  authorized
   50  in  section  11-0523  of  this  article,  such taking is exempt from the
   51  requirement of a [hunting, big game or trapping] license  which  author-
   52  izes the holder to hunt wildlife or trap, unless the provision authoriz-
   53  ing such taking specifies that such license is required.
   54    §  26. Subdivision 2 of section 11-0713 of the environmental conserva-
   55  tion law, as amended by chapter 450 of the laws of 1991  and  as  renum-
 
       S. 6257                            15                            A. 9759
 
    1  bered  by  section  5  of  part  D of chapter 61 of the laws of 2000, is
    2  amended to read as follows:
    3    2.  The  issuing  officer  shall  not issue a junior archery or junior
    4  small and big game license to a person between the ages of fourteen  and
    5  sixteen or a junior [hunting] small game license to a person between the
    6  ages of twelve and [sixteen, years] thirteen unless at the time of issu-
    7  ance  applicant is accompanied by his parent or legal guardian who shall
    8  consent to the issuance of the license and shall so signify  by  signing
    9  his  name  in ink across the face of it. At no time shall [hunting] such
   10  licenses be issued by mail to persons between the  ages  of  twelve  and
   11  sixteen years.
   12    §  27. Paragraphs a, b, c and d of subdivision 3 of section 11-0713 of
   13  the environmental conservation law, paragraphs a, c, d and  subparagraph
   14  1 of paragraph b as amended by chapter 57 of the laws of 1993, paragraph
   15  b  as amended by chapter 450 of the laws of 1991 and such subdivision as
   16  renumbered by section 5 of part D of chapter 61 of the laws of 2000, are
   17  amended to read as follows:
   18    a. Subject to the provisions of paragraphs b and c  of  this  subdivi-
   19  sion,  the  issuing officer shall not issue a [hunting, combination free
   20  hunting-big game hunting-fishing, combined resident hunting, fishing and
   21  big game, big game, junior hunting, junior archery,  combined  non-resi-
   22  dent  hunting, fishing, big game, bowhunting and muzzle-loading, non-re-
   23  sident bowhunting, non-resident muzzle-loading or  trapping  license  or
   24  bowhunting  stamp  or muzzle-loading stamp] license, stamp, tag, button,
   25  permit, or permit application which authorizes the holder to hunt  wild-
   26  life, to any person unless the applicant presents:
   27    (1) a [hunting, five-day hunting, combined hunting and fishing, combi-
   28  nation free hunting-big game hunting-fishing, combined resident hunting,
   29  fishing and big game, combined small game and big game, big game, junior
   30  archery,  junior  hunting,  combined  non-resident hunting, fishing, big
   31  game, bowhunting and muzzle-loading, non-resident bowhunting,  non-resi-
   32  dent  muzzle-loading or trapping] license which authorizes the holder to
   33  hunt wildlife issued to him previously; or
   34    (2) an affidavit from a license issuing officer stating that applicant
   35  previously has been issued a [hunting, five-day hunting, combined  hunt-
   36  ing  and  fishing,  combination  free  hunting-big game hunting-fishing,
   37  combined resident hunting, fishing and big game, combined small game and
   38  big game, big game,  trapping,  junior  hunting,  combined  non-resident
   39  hunting,  fishing, big game, bowhunting and muzzle-loading, non-resident
   40  bowhunting, non-resident muzzle-loading or junior archery] license which
   41  authorizes the holder to hunt wildlife; or
   42    (3) a certificate of qualification in responsible hunting, responsible
   43  bowhunting and responsible trapping practices, including safety,  ethics
   44  and  landowner-hunter  relations,  issued  or honored by the department,
   45  pursuant to this subdivision.
   46    b. (1) The issuing officer shall not  issue  a  [bowhunting  stamp  or
   47  non-resident  bowhunting  or  junior  archery]  license  or  stamp which
   48  authorizes the holder to exercise the privilege of hunting big game with
   49  a longbow to any person unless  the  applicant  presents  a  [bowhunting
   50  stamp  or  a non-resident bowhunting or junior archery license] New York
   51  state license or stamp which authorizes the holder to exercise the priv-
   52  ilege of hunting big game with a longbow issued in  1980  or  later,  an
   53  affidavit  as provided in subparagraph 2 of paragraph a of this subdivi-
   54  sion or a certificate of qualification in responsible  bowhunting  prac-
   55  tices issued or honored by the department.
 
       S. 6257                            16                            A. 9759
 
    1    (2)  The  issuing  officer  shall  not issue a trapping license to any
    2  person unless the applicant presents a trapping license  issued  to  him
    3  previously,  an  affidavit  as provided in subparagraph [(2)] 2 of para-
    4  graph a of this subdivision or a certificate of qualification in respon-
    5  sible trapping practices.
    6    c.  The  issuing officer shall not issue a bowhunting stamp or muzzle-
    7  loading stamp to any resident unless the applicant presents a small  and
    8  big  game, [combination] free [hunting-big game hunting-fishing] sports-
    9  man, or [combined resident hunting, fishing and big game]  sportsman  or
   10  resident  super-sportsman  license  issued to that person for the corre-
   11  sponding license year.
   12    d. Certifications of qualification in responsible hunting, responsible
   13  bowhunting and responsible trapping practices may be made by duly quali-
   14  fied and designated persons, whose fitness to give instructions in  said
   15  practices has been determined by an agent of the department. The depart-
   16  ment  may designate any person it deems qualified to act as its agent in
   17  the giving of instruction and the making  of  certification.  No  charge
   18  shall  be  made  for any certificate or instruction given to a person to
   19  qualify him or her to obtain  a  [hunting,  combined  resident  hunting,
   20  fishing and big game, big game, combined non-resident, hunting, fishing,
   21  big   game,   bowhunting,  muzzle-loading,  non-resident  bowhunting  or
   22  muzzle-loading, junior hunting, junior archery or trapping]  license  or
   23  [bowhunting]  stamp  other  than  for  certain instruction and materials
   24  accredited by the department to provide preparation for  final  instruc-
   25  tion  and  testing by agents of the department or for replacement educa-
   26  tion certificates for a commission of one dollar to the  issuing  agent.
   27  The department shall make available to the public courses without charge
   28  which  do not require additional preparation at the expense of students,
   29  and may also offer optional courses which require  preparatory  instruc-
   30  tion  which  may  be  at the expense of the student.  The department may
   31  make rules and regulations which in  its  opinion  [are  calculated  to]
   32  effectuate better the purpose of this subdivision.
   33    §  28. Subdivision 4 of section 11-0713 of the environmental conserva-
   34  tion law, as amended by chapter 450 of the laws of 1991  and  as  renum-
   35  bered by section 5 of part D of chapter 61 of the laws of 2000 and para-
   36  graph  a  as  amended  by chapter 470 of the laws of 1994, is amended to
   37  read as follows:
   38    4. a. A person who has lost  or  accidentally  destroyed  a  [hunting,
   39  fishing,  combination  free  hunting-big  game hunting-fishing, combined
   40  resident hunting, fishing and big game, big game, junior archery, junior
   41  hunting, combined non-resident hunting, fishing,  big  game,  bowhunting
   42  and muzzle-loading, non-resident bowhunting, non-resident muzzle-loading
   43  or  trapping]  license[,  bowhunting  stamp  or muzzle-loading] or stamp
   44  authorizing the holder to hunt, fish, or trap may apply to  the  officer
   45  who  issued  it  for  a  certificate in lieu thereof. Such officer shall
   46  issue a certificate stating the name and address of the  applicant,  the
   47  type  of  license issued and the fee, if any, paid for it.  Applications
   48  and certificates furnished by the department  shall  be  used  for  this
   49  purpose.
   50    b.  A  person  who  has lost or accidentally destroyed a button or tag
   51  issued with such a license [or a hunting, junior hunting,  junior  arch-
   52  ery, combination free hunting-big game hunting, combined hunting and big
   53  game,  or  big  game license tag] or stamp may apply to [the department]
   54  any license issuing officer for a duplicate  and  the  department  shall
   55  issue  a  duplicate button or tag when satisfied that the application is
 
       S. 6257                            17                            A. 9759
 
    1  made in good faith. A duplicate  [combination]  free  [hunting-big  game
    2  hunting] sportsman tag shall be issued free of charge.
    3    c.  A  person who has lost or accidentally destroyed a deer management
    4  permit may apply to any license issuing officer for  a  duplicate.  Such
    5  officer  shall issue a duplicate tag when satisfied that the application
    6  is made in good faith. The officer shall also issue a certificate  stat-
    7  ing the name and address of the applicant, the identifying number of the
    8  tag  that is being issued and the fee, if any, paid for it. Applications
    9  and tags furnished by the department shall be used for this purpose.
   10    § 29. Subdivision 2 of section 11-0715 of the environmental  conserva-
   11  tion  law,  as amended by chapter 450 of the laws of 1991, is amended to
   12  read as follows:
   13    2. A resident in the state for thirty days immediately  prior  to  the
   14  date  of  application who has attained the age of seventy is entitled to
   15  receive [a fishing license, a hunting license, a bow  hunting  stamp,  a
   16  muzzle-loading  stamp, a trapping license, a special second deer permit,
   17  a big game hunting license and combination hunting, big game and fishing
   18  license for the license year beginning October first,  nineteen  hundred
   19  ninety-one,  and  annually  thereafter,]  all  licenses,  stamps,  tags,
   20  buttons, and permits authorized by this title for which  he  or  she  is
   21  eligible,  except  turkey permits, renewable each year for a [four] five
   22  dollar [license] fee [and one dollar to the issuing clerk]; a member  of
   23  the  Shinnecock  tribe  or  the  Poospatuck tribe or a member of the six
   24  nations, residing on any reservation wholly or partly within the  state,
   25  is  entitled  to  receive  free of charge a fishing license, a [hunting]
   26  small and big game license, a sportsman license, a muzzle-loading stamp,
   27  [a big game license,] a trapping license, [a special second deer permit]
   28  and a bow hunting stamp; and a resident who  is  blind  is  entitled  to
   29  receive  a  fishing  license  free  of  charge. For the purposes of this
   30  subdivision a person is blind only if either:  (a)  his  central  visual
   31  acuity  does not exceed 20/200 in the better eye with correcting lenses,
   32  or (b) his visual acuity is greater than 20/200 but is accompanied by  a
   33  limitation  of  the field of vision such that the widest diameter of the
   34  visual field subtends an angle no greater than 20 degrees.
   35    [A person entitled to a free license as provided in  this  subdivision
   36  shall  be  issued  a  combination  free hunting-big game hunting-fishing
   37  license renewable each year.  Those  free  licensees  not  qualified  to
   38  receive  a  hunting  license  shall have stamped across the face thereof
   39  "FISHING ONLY", and the issuing clerk  shall  destroy  the  accompanying
   40  back tag for such license.]
   41    A  resident in the state for a period of thirty days immediately prior
   42  to the date of application who has attained the  age  of  sixty-five  is
   43  entitled to receive a [combined hunting, fishing and big game] sportsman
   44  license  at  the  cost  of [four] five dollars as a license fee [and one
   45  dollar to the issuing clerk].
   46    § 30. Subdivision 3 of section 11-0715 of the environmental  conserva-
   47  tion  law  is  REPEALED  and  a  new  subdivision  3 is added to read as
   48  follows:
   49    3. Each applicant for a license, permit or  stamp  shall  pay  to  the
   50  issuing  officer a fee, according to the license, permit or stamp issued
   51  and the residence or other qualification of the applicant.
   52    a. In the case of persons who have been residents  of  the  state  for
   53  more  than  thirty days immediately preceding the date of application or
   54  who are enrolled in a full-time course at a college or university within
   55  the state and who are in residence in the state  for  the  school  year,
   56  Indians residing off reservations in the state and members of the United
 
       S. 6257                            18                            A. 9759
 
    1  States armed forces in active service stationed in this state regardless
    2  of place of residence at the time of entry into service:
    3          License                                   Fee
    4          (1) Super-sportsman                       $68.00
    5          (2) Sportsman                             $37.00
    6          (3) Small and big game                    $19.00
    7          (4) Fishing                               $19.00
    8          (5) Trapping                              $16.00
    9          (6) Hunting                               $16.00
   10          (7) Junior trapping                       $ 6.00
   11          (8) Muzzle-loading stamp                  $16.00
   12          (9) Bowhunting stamp                      $16.00
   13          (10) Turkey permit                        $ 5.00
   14          (11) Seven-day fishing                    $12.00
   15          (12) Conservation legacy                  $76.00
   16    b. In the case of a non-resident and persons resident in the state for
   17  less  than  thirty  days, other than persons who are enrolled in a full-
   18  time course at a college or university within the state and who  are  in
   19  residence  in  the  state  for  the school year and those members of the
   20  United States armed forces as to whom fees are specified in paragraph  a
   21  of this subdivision:
   22          License                                   Fee
   23          (1) Big game                              $110.00
   24          (2) Hunting                               $ 55.00
   25          (3) Fishing                               $ 40.00
   26          (4) Seven-day fishing                     $ 25.00
   27          (5) Trapping                              $255.00
   28          (6) Super-sportsman                       $250.00
   29          (7) Bowhunting                            $110.00
   30          (8) Muzzle-loading                        $110.00
   31          (9) Bear tag                              $ 30.00
   32          (10) Turkey permit                        $ 30.00
   33    c. In all cases:
   34          (1) Certificates in lieu of lost license or stamp   $ 5.00
   35          (2) Duplicate for lost or destroyed permit, button or tag
   36                                                              $10.00
   37          (3) Junior small game license                       $ 5.00
   38          (4) Junior small and big game license               $ 9.00
   39          (5) Junior archery license                          $ 9.00
   40          (6) One-day fishing license                         $15.00
   41          (7) Conservation patron license                     $12.00
   42    §  31. Subdivision 4 of section 11-0715 of the environmental conserva-
   43  tion law, as amended by chapter 450 of the laws of 1991, is  amended  to
   44  read as follows:
   45    4. A person resident in the state for at least thirty days immediately
   46  prior to the date of application, who has been honorably discharged from
   47  service in the armed forces of the United States and certified as having
   48  a  forty  [per  cent] percent or greater service-connected disability is
   49  entitled to receive  [a  combination  hunting-big  game  hunting-fishing
   50  license,  a  bow  hunting  stamp,  a muzzle loading stamp and a trapping
   51  license] all licenses, stamps, tags, buttons, and permits authorized  by
   52  this  title  for  which  he  or  she is eligible, except turkey permits,
   53  renewable each year for a [four] five dollar fee [and one dollar to  the
   54  issuing clerk].
   55    § 32. Section 11-0715 of the environmental conservation law is amended
   56  by adding a new subdivision 6 to read as follows:
 
       S. 6257                            19                            A. 9759
 
    1    6.  a.  License  issuing  officers may retain 1.1 percent of the gross
    2  proceeds from the sale of the following:
    3    (1) non-resident hunting license
    4    (2) non-resident big game license
    5    (3) non-resident trapping license
    6    (4) bear tag
    7    (5) non-resident bowhunting license
    8    (6) non-resident muzzle-loading license
    9    (7) non-resident super-sportsman license
   10    (8) non-resident turkey permit
   11    (9) all lifetime licenses listed in section 11-0702 of this title.
   12    b.  License  issuing  officers  may  retain  5.5  percent of the gross
   13  proceeds from sale  of  all  other  license,  stamps,  certificates  and
   14  permits,  including  any application fees associated with such licenses,
   15  stamps, certificates and permits.
   16    § 33. The opening paragraph of paragraph a of subdivision 2 of section
   17  11-0719 of the environmental conservation law, as amended by chapter 119
   18  of the laws of 1999, is amended to read as follows:
   19    The department may revoke the [hunting, big game,  junior  archery  or
   20  trapping  license  or  the  hunting and big game hunting portions of the
   21  combination free hunting-big game hunting-fishing license, or any or all
   22  of them, or any stamp or tag, and]  licenses,  tags,  and  stamps  which
   23  authorize  the  holder  to  hunt  and/or trap wildlife, and may deny the
   24  privilege of obtaining such [license or such portions of the combination
   25  free hunting-big game hunting-fishing license and of hunting or of trap-
   26  ping anywhere in the state,] licenses, tags, and stamps and may deny the
   27  privileges of hunting and/or trapping with or without a license[,].
   28    § 34. Subdivision 3 of section 11-0719 of the environmental  conserva-
   29  tion  law,  as amended by chapter 158 of the laws of 1999, is amended to
   30  read as follows:
   31    3. A junior [hunting] small game license issued to  a  person  who  is
   32  between  the  ages  of  twelve  and [sixteen] fourteen years or a junior
   33  archery or junior small and big game license issued to a person  who  is
   34  between  the  ages  of  fourteen and sixteen years may be revoked by the
   35  department upon proof satisfactory to the department that  such  person,
   36  while  under  the age of sixteen, has engaged in hunting wildlife with a
   37  gun or longbow, in circumstances in which a license is  required,  while
   38  not  accompanied  by  his parent, guardian or other adult as provided in
   39  either subdivision 1 or subdivision 3 of section 11-0929 of  this  arti-
   40  cle.  If  such  license or privilege is revoked the department shall fix
   41  the period of such revocation, which is not to exceed four years.    The
   42  department  may require that such person successfully complete a depart-
   43  ment sponsored course and  obtain  a  certificate  of  qualification  in
   44  responsible  hunting  or  responsible  bowhunting practices before being
   45  issued another hunting or bowhunting license.
   46    § 35. Paragraph b of subdivision 7 of section 11-0903 of the  environ-
   47  mental  conservation  law, as amended by chapter 57 of the laws of 1993,
   48  is amended to read as follows:
   49    b. Deer may be taken only by holders of [big game or combined resident
   50  hunting, fishing and big game or combination free hunting-big game hunt-
   51  ing-fishing  or  combined  non-resident  hunting,  fishing,  big   game,
   52  bowhunting  and  muzzle-loading or non-resident bowhunting and non-resi-
   53  dent muzzle-loading licenses] a license authorizing the  taking  of  big
   54  game  who have also obtained a special permit provided by the department
   55  and issued by the town clerk of each town where such season is fixed;
 
       S. 6257                            20                            A. 9759
 
    1    § 36. Subparagraph 1 of  paragraph  e  of  subdivision  9  of  section
    2  11-0903 of the environmental conservation law, as amended by chapter 911
    3  of the laws of 1990, is amended to read as follows:
    4    (1)  a  requirement that hunting deer during such special season shall
    5  be only by holders of both a [big game] license authorizing  the  taking
    6  of  big  game and a special permit for the area where hunting is permit-
    7  ted,
    8    § 37. Paragraph a of subdivision 1 of section 11-0907 of the  environ-
    9  mental  conservation law, as amended by chapter 330 of the laws of 1994,
   10  is amended to read as follows:
   11    a. Wild deer without antlers or having  antlers  measuring  less  than
   12  three inches in length shall not be taken unless it is taken (1) by long
   13  bow  in  a  special long bow season established in subdivision 3 of this
   14  section, or (2) by muzzle-loading firearm in  a  special  muzzle-loading
   15  firearm  season  established in subdivision 8 of this section, or (3) by
   16  long bow in Westchester and Suffolk Counties in a year in which a  regu-
   17  lar  season  for deer of either sex is established for such counties, or
   18  (4) in a special open season for deer of either  sex  fixed  by  [order]
   19  regulation  pursuant  to  subdivision  5 or 7 of section 11-0903 of this
   20  title, or (5) pursuant to a special antlerless deer license in a special
   21  open season for antlerless deer in a tract within a  Wilderness  Hunting
   22  Area fixed by regulation pursuant to subdivision 6 of section 11-0903 of
   23  this  title,  or  (6)  pursuant  to a deer management permit by a person
   24  eligible to take such deer  pursuant  thereto  as  provided  in  section
   25  11-0913 of this title, or (7) pursuant to a permit issued to an eligible
   26  non-ambulatory  person,  pursuant  to  subdivision  [two]  2  of section
   27  11-0931 of this title, while in possession of a valid [big game] license
   28  issued by the department which authorizes the holder to hunt  big  game.
   29  Nothing  in  this  subparagraph shall be construed to limit the power of
   30  the department to designate by regulation an area or areas of the  state
   31  consisting of a county or part of a county where such season shall apply
   32  and whether the number of such special permits shall be limited.
   33    §  38. Paragraph c of subdivision 1 of section 11-0907 of the environ-
   34  mental conservation law, as amended by chapter 600 of the laws of  1993,
   35  is amended to read as follows:
   36    c.  The  limit  for wild deer is one deer per person in a license year
   37  except that (1) a person  entitled  to  exercise  the  privileges  of  a
   38  special  antlerless deer license may take an antlerless deer while hunt-
   39  ing pursuant to such license in addition to the limit of one deer  in  a
   40  license year otherwise applicable, [and] (2) a person who is a member of
   41  a  hunting  group  holding  a  deer  management permit or permits issued
   42  pursuant to section 11-0913 of this article  may  take  additional  deer
   43  while  hunting  in  accordance  with  the  conditions  of  the permit or
   44  permits, [and] (3)  the holder of a bowhunting license  or  stamp  or  a
   45  muzzle-loading  license  or  stamp  may  take up to two additional deer,
   46  pursuant to regulations promulgated by the department, and (4) an eligi-
   47  ble non-ambulatory person, pursuant to subdivision [two]  2  of  section
   48  11-0931  of  this [chapter] article may take a deer of either sex in any
   49  [deer] wildlife management unit area where deer management permits  have
   50  been issued by the department, while in possession of a valid [big game]
   51  license  [and a special big game permit, issued by the department, for a
   52  fee of five dollars] which authorizes  the  holder  to  hunt  big  game.
   53  Nothing  contained in this section shall be construed to limit the power
   54  of the department to designate by regulation an area  or  areas  of  the
   55  state consisting of a county or part of a county where such season shall
   56  apply and whether the number of such special permits shall be limited.
 
       S. 6257                            21                            A. 9759
 
    1    §  39. Paragraph c of subdivision 1 of section 11-0907 of the environ-
    2  mental conservation law, as amended by chapter 911 of the laws  of  1990
    3  and  subparagraph  2  as  amended by chapter 119 of the laws of 1991, is
    4  amended to read as follows:
    5    c.  The  limit  for  wild  deer  and bear is one deer and one bear per
    6  person in a license year except that (1) a person entitled  to  exercise
    7  the  privileges of a special antlerless deer license may take an antler-
    8  less deer while hunting pursuant to such  license  in  addition  to  the
    9  limit  of  one  deer in a license year otherwise applicable, [and] (2) a
   10  person who is a member of a hunting  group  holding  a  deer  management
   11  permit or permits issued pursuant to section 11-0913 of this article may
   12  take  additional deer while hunting in accordance with the conditions of
   13  the permit or permits, [and] (3)  the holder of a bowhunting license  or
   14  stamp or a muzzle-loading license or stamp may take up to two additional
   15  deer,  pursuant to regulations promulgated by the department, and (4) an
   16  eligible non-ambulatory person,  pursuant  to  subdivision  [two]  2  of
   17  section  11-0931 of this [chapter] article may take a deer of either sex
   18  in any [deer]  wildlife  management  unit  area  where  deer  management
   19  permits  have  been  issued  by the department, while in possession of a
   20  valid [big game] license [and a special big game permit, issued  by  the
   21  department,  for  a  fee of five dollars] which authorizes the holder to
   22  hunt big game. Nothing contained in this section shall be  construed  to
   23  limit  the power of the department to designate by regulation an area or
   24  areas of the state consisting of a county or part of a county where such
   25  season shall apply and whether the number of such special permits  shall
   26  be limited.
   27    §  40.  Paragraphs  d and e of subdivision 1 of section 11-0907 of the
   28  environmental conservation law are REPEALED and two new paragraphs d and
   29  e are added to read as follows:
   30    d.  (1) A person who holds licenses or stamps authorizing  the  holder
   31  to hunt deer during a special archery season and the regular open season
   32  and  who has taken a deer by longbow in a special archery season and who
   33  has not taken a deer in a regular open season may, in  addition  to  the
   34  limit  of  one  deer in a license year otherwise applicable, take during
   35  the same license year additional deer as specified by  department  regu-
   36  lation  in  a  special archery season following the close of the regular
   37  open deer season.
   38    (2) A person who holds licenses or stamps authorizing  the  holder  to
   39  hunt  deer  during  a special archery season and the regular open season
   40  and who has taken a deer by longbow in the regular open season for  deer
   41  in  Westchester or Suffolk counties may, in addition to the limit of one
   42  deer in a license  year  otherwise  applicable,  take  during  the  same
   43  license  year  additional  deer  as  specified  by department regulation
   44  during such Westchester or Suffolk county regular open deer season.
   45    e. A person who holds licenses or stamps  authorizing  the  holder  to
   46  hunt  deer  during  a special muzzle-loading season and the regular open
   47  season and who has taken a deer by muzzle-loading firearm in  a  muzzle-
   48  loading  season  and  who  has not taken a deer in a regular open season
   49  may, in addition to the limit of one deer in a  license  year  otherwise
   50  applicable,  take  during  the same year additional deer as specified by
   51  department regulation in a special muzzle-loading season  following  the
   52  close of the regular deer season.
   53    §  41. Paragraph a of subdivision 3 of section 11-0907 of the environ-
   54  mental conservation law, as amended by chapter 600 of the laws of  1993,
   55  is amended to read as follows:
 
       S. 6257                            22                            A. 9759
 
    1    a.  In  every  area identified in column one of the table set forth in
    2  subdivision 2 of this section, except Westchester and  Suffolk  Counties
    3  in  which  a  regular  open season for taking deer by firearms is estab-
    4  lished and effective, a special open season is  established  for  taking
    5  deer  of  either sex, by the use of a long bow only by holders of a [big
    6  game, combined small game and big game, combined  hunting,  fishing  and
    7  big  game]  small  and big game, sportsman, or [combination] free [hunt-
    8  ing-big  game  hunting-fishing]  sportsman  license  to  which  a  valid
    9  bowhunting  stamp is affixed or to holders of a junior archery, resident
   10  or non-resident super-sportsman, or non-resident bowhunting license.
   11    § 42. Paragraph a of subdivision 3 of section 11-0907 of the  environ-
   12  mental  conservation law, as amended by chapter 694 of the laws of 1980,
   13  is amended to read as follows:
   14    a. In every area identified in column one of the table  set  forth  in
   15  subdivision  2  of this section, except Westchester and Suffolk Counties
   16  in which a regular open season for taking deer  by  firearms  is  estab-
   17  lished  and  effective,  a special open season is established for taking
   18  deer of either sex, and bear, by the use of a long bow only  by  holders
   19  of  a  [big  game,  combined  small game and big game, combined hunting,
   20  fishing and big game] small and big game,  sportsman,  or  [combination]
   21  free  [hunting-big  game  hunting-fishing]  sportsman license to which a
   22  valid bowhunting stamp is affixed or to holders  of  a  junior  archery,
   23  resident  or  non-resident  super-sportsman,  or non-resident bowhunting
   24  license.
   25    § 43. Paragraph a of subdivision 5 of section 11-0907 of the  environ-
   26  mental  conservation law, as amended by chapter 768 of the laws of 1978,
   27  is amended to read as follows:
   28    a. In Monroe County, the area bounded and described as follows: On the
   29  west by Route 261 (Manitou Road) beginning  at  Manitou  Beach  on  Lake
   30  Ontario  in  the town of Greece and continuing southerly along such road
   31  to its intersection with the Barge Canal,  thence  easterly  along  such
   32  canal  to  East Avenue in the village of Pittsford, thence northeasterly
   33  along East Avenue to Allen Creek in the town of Brighton, thence  north-
   34  erly  along  Allen  Creek  to  Irondequoit Creek, thence northerly along
   35  Irondequoit Creek to Irondequoit Bay, thence northerly along the easter-
   36  ly shore of Irondequoit Bay to Lake Ontario; except that deer of  either
   37  sex  may  be  taken  during the regular and special deer hunting seasons
   38  provided for in this title by the use of a [long bow] longbow by holders
   39  of [a big game license to which a valid bow  hunting  stamp  is  affixed
   40  during the regular and special deer hunting seasons provided for in this
   41  title] licenses which authorize the holder to hunt deer during a special
   42  archery  season  and provided further that this exception permitting the
   43  taking of deer by a [long bow] longbow shall not apply within an area in
   44  the town of Greece bounded and described as follows: On the west by Long
   45  Pond Road beginning at Latta Road and continuing  southerly  along  such
   46  road  to its intersection with Maiden Lane, thence easterly along Maiden
   47  Lane to its intersection with Mt. Read Blvd., thence northerly along Mt.
   48  Read Blvd. to its intersection with Latta Road,  thence  westerly  along
   49  Latta  Road  to  its  intersection  with  Long Pond Road at the point of
   50  beginning.
   51    § 44. Paragraph a of subdivision 7 of section 11-0907 of the  environ-
   52  mental  conservation law, as amended by chapter 272 of the laws of 1983,
   53  is amended to read as follows:
   54    a. The area described in this subdivision is closed to the  taking  of
   55  deer  and bear by firearms, but shall be open for taking deer by the use
   56  of a [long bow] longbow only by holders of [a big game,  combined  small
 
       S. 6257                            23                            A. 9759
 
    1  game and big game, combined hunting, fishing and big game or combination
    2  free  hunting-big game hunting-fishing license to which a valid bowhunt-
    3  ing stamp is affixed  or  a  junior  archery  license,]  licenses  which
    4  authorize  the  holders  to hunt deer during a special archery season as
    5  follows: during the special deer season stated in subdivision [three]  3
    6  of  this  section  and  during  the regular season stated in subdivision
    7  [two] 2 of this section, deer of either sex may be taken.
    8    § 45. Paragraph a of subdivision 8 of section 11-0907 of the  environ-
    9  mental  conservation law, as amended by chapter 241 of the laws of 1997,
   10  is amended to read as follows:
   11    a. In every area identified in column one of the table  set  forth  in
   12  subdivision  2 of this section, except those areas restricted to special
   13  seasons for taking deer by longbow only, special  open  seasons  may  be
   14  established  by  regulation  for  taking deer and/or bear, by the use of
   15  muzzle-loading firearms, of not less than .44 caliber shooting a  single
   16  projectile, by the holders of a small and big game, [combined small game
   17  and  big  game,  combined hunting, fishing and big game or] sportsman or
   18  [combination] free [hunting-big game hunting-fishing] sportsman  license
   19  to  which  a  valid  muzzle-loading  stamp is affixed or to holders of a
   20  junior small and big game, resident or non-resident super-sportsman,  or
   21  non-resident muzzle-loading license.
   22    §  46. Paragraph b of subdivision 1 of section 11-0913 of the environ-
   23  mental conservation law, as amended by chapter 401 of the laws of  1985,
   24  is amended to read as follows:
   25    b.  In  the issuance of permits, the department may give preference to
   26  [state residents] resident license holders and may give preference[,  to
   27  the  extent of not more than 50 per cent of the permits to be issued for
   28  a specified area,] to disabled veterans having  40  percent  or  greater
   29  disability,  and to the applications of groups which include a person or
   30  the spouse of a person, provided that such  spouse  lives  in  the  same
   31  household, who owns at least 50 acres of land in one parcel in the spec-
   32  ified area [and which are postmarked not later than midnight of the last
   33  day  of  the  period  prescribed by department order for making applica-
   34  tion].
   35    § 47. Paragraph d of subdivision 2 of section 11-0913 is REPEALED  and
   36  paragraphs e, f and g are relettered paragraphs d, e and f.
   37    §  48. Subdivisions 3, 4 and 7 of section 11-0913 of the environmental
   38  conservation law, as amended by chapter 57 of  the  laws  of  1993,  are
   39  amended to read as follows:
   40    3.  Each  member  of  a group issued a permit pursuant to this section
   41  shall possess a [big game, combined resident hunting,  fishing  and  big
   42  game,  combination  free  hunting-big  game  hunting-fishing  license or
   43  combined  non-resident  hunting,  fishing,  big  game,  bowhunting   and
   44  muzzle-loading]  license which authorizes the holder to hunt deer during
   45  the regular open season before the permit may be validated.
   46    4. During a license year, no person shall use more than one [big game,
   47  combined resident hunting, fishing and big game, combination free  hunt-
   48  ing-big  game  hunting-fishing license or combined non-resident hunting,
   49  fishing, big game, bowhunting and muzzle-loading] license which  author-
   50  izes  the  holder  to hunt deer during the regular open season in making
   51  application for a deer management permit.
   52    7. The department shall charge and receive a fee of  ten  dollars  for
   53  the  application  and  the processing of such permit or permits.  Appli-
   54  cants who are successful in the computerized selection shall receive the
   55  permit or permits free of any additional  charge.  The  application  fee
   56  shall  be  non-refundable.  The department may waive the application fee
 
       S. 6257                            24                            A. 9759
 
    1  for holders of a [combined  resident  hunting,  fishing  and  big  game]
    2  junior  archery,  junior  small and big game, sportsman, resident super-
    3  sportsman conservation legacy license  or  non-resident  super-sportsman
    4  license [or a combined non-resident hunting, fishing, big game, bowhunt-
    5  ing and muzzle-loading license].
    6    §  49.  Section  11-0929  of  the  environmental  conservation law, as
    7  amended by chapter 694 of the laws of 1980,  subdivisions  1  and  3  as
    8  amended  by  chapter  450  of  the  laws  of 1991, is amended to read as
    9  follows:
   10  § 11-0929. Hunting by minors.
   11    1. A licensee between the ages of twelve and fourteen years shall  not
   12  hunt wildlife with a gun or a longbow unless he or she is accompanied by
   13  his  or her parent or legal guardian or relative over the age of twenty-
   14  one designated in writing by his or her parent who holds a [hunting,  or
   15  combined  hunting,  fishing and big game or combination free hunting-big
   16  game hunting-fishing] license which authorizes the holder to hunt  wild-
   17  life; a licensee between the ages of fourteen and sixteen shall not hunt
   18  wildlife with a gun or longbow unless he or she is accompanied by his or
   19  her parent holding such license, or a person over eighteen years of age,
   20  designated  in  writing  by his or her parent or legal guardian, holding
   21  such license.
   22    2. A licensee under the age of eighteen years who has  not  previously
   23  had  a  [big game, combined small game and big game or combined hunting,
   24  fishing and big game] license which authorizes the holder  to  hunt  big
   25  game  issued  to  him or her and engaged in hunting pursuant to it shall
   26  not hunt deer or bear unless he or she is accompanied by his  parent  or
   27  legal guardian, or by a person over eighteen years of age who has had at
   28  least one year's experience in hunting deer or bear, and such accompany-
   29  ing  parent,  guardian  or person holds a [big game, combined small game
   30  and big game, combined hunting, fishing and big game or combination free
   31  hunting-big game hunting-fishing] license which authorizes the holder to
   32  hunt big game.
   33    3. A junior archery licensee, between the ages of fourteen and sixteen
   34  years, shall not hunt deer or bear unless he or she  is  accompanied  by
   35  his  or her parent or legal guardian, or by a person over eighteen years
   36  of age who has had at least one year's experience  in  hunting  deer  or
   37  bear  by longbow, and such accompanying parent, guardian or person holds
   38  a [big game, combined hunting, fishing and big game or combination  free
   39  hunting-big   game  hunting-fishing  license  with  a  bowhunting  stamp
   40  affixed] license which authorizes the holder to hunt big game  during  a
   41  special archery season and the regular open season.
   42    §  50. Subdivision 2 of section 11-0931 of the environmental conserva-
   43  tion law is amended to read as follows:
   44    2. No firearm  except  a  pistol  or  revolver  shall  be  carried  or
   45  possessed  in  or  on  a motor vehicle unless it is unloaded in both the
   46  chamber and the magazine, except that a  loaded  firearm  which  may  be
   47  legally used for taking migratory game birds may be carried or possessed
   48  in a motorboat while being legally used in hunting migratory game birds,
   49  and no person except a law enforcement officer in the performance of his
   50  official  duties shall, while in or on a motor vehicle, use a jacklight,
   51  spotlight or other artificial light upon lands inhabited by deer  if  he
   52  is  in possession or is accompanied by a person who is in possession, at
   53  the time of such use, of a longbow, crossbow or a firearm  of  any  kind
   54  except  a  pistol  or  revolver, unless such longbow is unstrung or such
   55  firearm is taken down or securely fastened in a case or  locked  in  the
   56  trunk  of  the vehicle.  For purposes of this subdivision, motor vehicle
 
       S. 6257                            25                            A. 9759
 
    1  shall mean every vehicle or other device operated  by  any  power  other
    2  than muscle power, and which shall include but not be limited to automo-
    3  biles,  trucks,  motorcycles, tractors, trailers and motorboats, snowmo-
    4  biles  and  snowtravelers,  whether  operated on or off public highways.
    5  Notwithstanding the provisions of this subdivision, the  department  may
    6  issue  a permit to any person who is non-ambulatory, except with the use
    7  of a mechanized aid, to possess a loaded firearm in or on a motor  vehi-
    8  cle  as  defined  in  this  section, subject to such restrictions as the
    9  department may deem necessary in the interest of public safety, and  for
   10  a  fee  of five dollars.  Nothing in this section permits the possession
   11  of a pistol or a revolver contrary to the [Penal Law] penal law.
   12    § 51. Section  11-1003  of  the  environmental  conservation  law,  as
   13  amended  by  chapter  325  of  the  laws  of 1989, is amended to read as
   14  follows:
   15  § 11-1003. Falconry license.
   16    Any resident of this state may  be  issued  a  falconry  license.  The
   17  department  shall  prescribe  and furnish forms for application for such
   18  license. The fee for the  license  shall  be  twenty  dollars.  Falconry
   19  licenses  shall  expire  on  December  31 every second year and shall be
   20  renewable at the discretion of the department. A falconry license  shall
   21  authorize  the  licensee to obtain, buy, sell, barter, possess and train
   22  raptors for falconry and to engage in falconry, provided  that  no  game
   23  shall  be  taken  or  killed  except during an open season therefor, and
   24  further provided that such  licensee  shall  also  possess  a  [hunting,
   25  combined hunting and fishing, combined small game and big game, combined
   26  hunting, fishing and big game or combination free hunting-big game hunt-
   27  ing-fishing] license pursuant to this chapter which authorizes the hold-
   28  er  to  hunt wildlife.  Any non-resident, who legally possesses a raptor
   29  where he or she resides and who may legally engage in falconry where  he
   30  or  she  resides,  may engage in falconry in New York without a falconry
   31  license provided he or she possesses a valid  non-resident  hunting  [or
   32  three-day hunting] license.
   33    §  52. Subdivision 4 of section 11-1201 of the environmental conserva-
   34  tion law, as added by chapter 726 of the laws of  1977,  is  amended  to
   35  read as follows:
   36    4.  "License  to hunt", "stamp to hunt", or "permit to hunt" means any
   37  license, permit, or other  privilege  granted  [within  the  meaning  of
   38  subdivisions  one,  two-a,  two-b, three, five, or eight of] pursuant to
   39  section 11-0701 of this [chapter] article which authorizes the holder to
   40  hunt wildlife.
   41    § 53. Subdivision 3 of section 71-0923 of the environmental  conserva-
   42  tion  law,  as amended by chapter 694 of the laws of 1980, is amended to
   43  read as follows:
   44    3. A violation of subdivision 2 of section  11-0705  of  this  chapter
   45  shall  be  punishable  by forfeiture of [the hunting, three-day hunting,
   46  combined hunting and fishing,  combined  small  game  and  big  game  or
   47  combined  hunting,  fishing and big game or combination free hunting-big
   48  game hunting-fishing license, or of the big game license,  as  the  case
   49  may be, and of the hunting license tag or big game license tag] licenses
   50  and  tags issued pursuant to this chapter which authorizes the holder to
   51  hunt wildlife and by a fine of not more than twenty-five dollars.
   52    § 54. Section 83 of the state finance law is amended by adding  a  new
   53  subdivision (h) to read as follows:
   54    (h)  All moneys, revenues and interest thereon received as a result of
   55  the application of subdivision seventeen of section 11-0305 of the envi-
   56  ronmental conservation law authorizing the issuance and sale  of  volun-
 
       S. 6257                            26                            A. 9759
 
    1  tary habitat stamps, other than the amount retained by the issuing agent
    2  or officer, shall be deposited in a special account within the conserva-
    3  tion fund to be known as the habitat account. All of such moneys, reven-
    4  ues  and  interest shall be available to the department of environmental
    5  conservation, pursuant to appropriation, exclusively for fish and  wild-
    6  life  habitat  management  and the improvement and development of public
    7  access for hunting, fishing, trapping and other fish and wildlife-relat-
    8  ed recreation and study.
    9    § 55. This act shall take effect on October 1, 2002, provided that any
   10  regulations necessary for the timely implementation of this act  on  its
   11  effective date may be promulgated before such date, and further provided
   12  that  the  amendments to paragraph c of subdivision 1 of section 11-0907
   13  of the environmental conservation law made by  section  thirty-eight  of
   14  this  act shall be subject to the expiration and reversion of such para-
   15  graph pursuant to section 13 of chapter 600 of  the  laws  of  1993,  as
   16  amended,  when  upon  such date the provisions of section thirty-nine of
   17  this act shall take effect, provided that the amendments to paragraph  a
   18  of  subdivision  3  of section 11-0907 of the environmental conservation
   19  law made by section forty-one of this act shall be subject to the  expi-
   20  ration and reversion of such paragraph pursuant to section 13 of chapter
   21  600  of the laws of 1993, as amended, when upon such date the provisions
   22  of section forty-two of this act shall take effect.
 
   23                                   PART H
 
   24    Section 1. Section 21.07 of the parks, recreation and historic preser-
   25  vation law, as amended by chapter 773 of the laws of 1992, is amended to
   26  read as follows:
   27    § 21.07 Fee for snowmobile trail development and maintenance.   A  fee
   28  of  [ten] twenty dollars is hereby imposed upon the resident, and [twen-
   29  ty] thirty dollars upon the nonresident, owner of a snowmobile  for  the
   30  snowmobile  trail  development  and  maintenance  fund to be paid to the
   31  commissioner of motor vehicles upon the registration thereof in addition
   32  to the registration fee required by the vehicle  and  traffic  law,  the
   33  payment  of  which  fee hereby imposed shall be a condition precedent to
   34  such individual resident, individual nonresident or dealer registration.
   35    § 2. Subdivisions 2 and 3 of section 27.17 of  the  parks,  recreation
   36  and  historic  preservation law, as amended by chapter 88 of the laws of
   37  1988, are amended to read as follows:
   38    2. Notwithstanding any other provision of law  to  the  contrary,  the
   39  commissioner  shall establish a plan for the development and maintenance
   40  of snowmobile trails and facilities in the  various  counties  or  where
   41  applicable, cities, towns or villages of the state as may be appropriate
   42  and  shall  take whatever action he or she deems necessary to foster and
   43  promote the safe utilization of such trails and  facilities;  for  these
   44  purposes, he or she may draw upon the moneys deposited in the snowmobile
   45  trail  development and maintenance fund for expenses, including personal
   46  services, as approved by the comptroller and  is  hereby  authorized  to
   47  assign  [two]  three  employees  of  his or her office to carry out such
   48  responsibilities and to pay their salaries, benefits and expenses out of
   49  such fund.
   50    3. Every county or, where applicable, any city, town or village within
   51  such county, shall be eligible for a grant for the development and main-
   52  tenance of a system of snowmobile trails and  a  program  with  relation
   53  thereto  within its boundaries. Such grants shall be made by the commis-
   54  sioner and may constitute up to one hundred percent of the cost of  such
 
       S. 6257                            27                            A. 9759
 
    1  program including expenditures incurred for signs and markers of snowmo-
    2  bile  trails. Any county or, where applicable, any city, town or village
    3  within such county, applying for such grant shall submit to the  commis-
    4  sioner  by September first of each year an estimate of such expenditures
    5  for the current fiscal year, in such form and containing  such  informa-
    6  tion  as  the  commissioner  may require.   No city, town or village may
    7  apply for such grant where the county within which it is  contained  has
    8  submitted  an  application  for the same fiscal year. For the purpose of
    9  this section, "fiscal year" shall  mean  the  period  from  April  first
   10  through  March  thirty-first.  The  commissioner  shall  review all such
   11  applications and shall determine the amount of state aid to be allocated
   12  to each county or, where applicable, any city, town  or  village  within
   13  such  county  in  accordance  with the provisions of subdivision five of
   14  this section.  Of the amount the commissioner determines each county or,
   15  where applicable, any city, town or village within such county is eligi-
   16  ble to receive, seventy percent shall be made available for distribution
   17  by November first and thirty percent for distribution upon demonstration
   18  of completion, submitted by June first, of the program.
   19    § 3. Subdivisions 4-a and 11 of section 2222 of the vehicle and  traf-
   20  fic  law,  subdivision 4-a as amended by chapter 337 of the laws of 1997
   21  and subdivision 11 as amended by chapter 773 of the laws  of  1992,  are
   22  amended to read as follows:
   23    4-a.  Additional  fee.  In  addition to the other fees provided for in
   24  paragraphs (a), (b) and (c) of subdivision  four  of  this  section  the
   25  commissioner  shall, upon application in such cases for the registration
   26  of a snowmobile or the renewal thereof, collect the annual [ten]  twenty
   27  dollar fee for residents and [twenty] thirty dollar fee for nonresidents
   28  imposed by section 21.07 of the parks, recreation and historic preserva-
   29  tion  law.  This fee shall also be collected from dealers at the time of
   30  original registration and at the time of each [biennial] renewal.
   31    11. Exemption. No registrations shall be required  for  the  following
   32  described snowmobiles:
   33    (a) Snowmobiles owned and used by the United States.
   34    (b)  Snowmobiles covered by a valid registration or license of another
   35  state, province or country, as provided in subdivision  twelve  of  this
   36  section.
   37    (c)  Snowmobiles  operated on lands owned by the owner of such snowmo-
   38  bile, or on lands to which such owner has a contractual right other than
   39  as a member of a club or association provided (i) the snowmobile is  not
   40  operated  elsewhere  within the state, and (ii) no consideration, either
   41  direct or indirect, is paid to the owner of the snowmobile with  respect
   42  to such operation.
   43    §  4. Subdivision 1 of section 2230 of the vehicle and traffic law, as
   44  added by chapter 839 of the laws of 1973, is amended to read as follows:
   45    1. The commissioner may suspend or revoke a registration issued pursu-
   46  ant to the provisions of this article,  upon  satisfactory  proof  of  a
   47  violation  of  any  provision  of  this  article, or of the parks [and],
   48  recreation and historic preservation law at the request of  the  commis-
   49  sioner  of  parks [and], recreation and historic preservation, or of any
   50  rule, regulation, order, local law or ordinance adopted  or  promulgated
   51  pursuant  thereto.  Such  suspension  or revocation shall be issued only
   52  after a hearing unless such a hearing is waived by the registrant.  Upon
   53  said  suspension  or  revocation,  all rights and privileges accruing to
   54  such registrant shall terminate.
   55    § 5. This act shall take effect on the ninetieth day  after  it  shall
   56  have become a law.
 
       S. 6257                            28                            A. 9759
 
    1                                   PART I
 
    2    Section  1.  Paragraphs  (b),  (c) and (d) of subdivision 6 of section
    3  92-s of the state finance law, paragraphs (b)  and  (c)  as  amended  by
    4  chapter  432 of the laws of 1997 and paragraph (d) as amended by section
    5  13 of part E of chapter 61 of the laws of 2000, are amended to  read  as
    6  follows:
    7    (b)  Moneys  from the solid waste account shall be available, pursuant
    8  to appropriation and upon certificate of approval of availability by the
    9  director of the budget, for any non-hazardous municipal landfill closure
   10  project; municipal waste reduction or recycling project, as  defined  in
   11  article  fifty-four  of  the  environmental  conservation  law;  for the
   12  purposes of section  two  hundred  sixty-one  and  section  two  hundred
   13  sixty-four of the economic development law; any project for the develop-
   14  ment,  updating or revision of local solid waste management plans pursu-
   15  ant to sections 27-0107 and 27-0109 of  the  environmental  conservation
   16  law;  [and] for the development of the pesticide sales and use data base
   17  in conjunction with Cornell University pursuant to title twelve of arti-
   18  cle thirty-three of the environmental  conservation  law;  and  for  any
   19  projects  to  assess  and  recover  any  natural resource damages to the
   20  Hudson River.
   21    (c) Moneys  from  the  parks,  recreation  and  historic  preservation
   22  account shall be available, pursuant to appropriation, for any municipal
   23  park   project,  historic  preservation  project,  urban  cultural  park
   24  project,  waterfront  revitalization  program,  coastal   rehabilitation
   25  project,  state  parks and lands infrastructure and stewardship project,
   26  Hudson River Park project consistent with chapter five  hundred  ninety-
   27  two  of  the  laws  of  nineteen hundred ninety-eight, and historic barn
   28  projects.
   29    (d) Moneys from the open space account shall be available, pursuant to
   30  appropriation, (i) for any open space land conservation project[,]; (ii)
   31  for bio-diversity stewardship and  research  pursuant  to  chapter  five
   32  hundred  fifty-four  of  the  laws  of nineteen hundred ninety-three[,];
   33  (iii) for the purposes of agricultural and  farmland  protection  activ-
   34  ities  as  authorized  by article twenty-five-AAA of the agriculture and
   35  markets law[,]; (iv) for non-point source abatement and control projects
   36  pursuant to section 17-1409 of the environmental  conservation  law  and
   37  section  eleven-b  of  the soil and water conservation districts law[,];
   38  (v) for soil and water conservation district activities  authorized  for
   39  reimbursement pursuant to section eleven-a of the soil and water conser-
   40  vation  districts  law;  (vi) for projects to implement the Hudson River
   41  estuary management plan prepared pursuant  to  section  11-0306  of  the
   42  environmental  conservation  law;  (vii)  for  Long  Island Central Pine
   43  Barrens area planning or Long Island south shore estuary  reserve  plan-
   44  ning  pursuant  to  title thirteen of article fifty-four of the environ-
   45  mental conservation law[, and]; (viii) for operation and  management  of
   46  the  Albany Pine Bush preserve commission pursuant to subdivision two of
   47  section 54-0303 of the environmental  conservation  law;  and  (ix)  for
   48  Peconic Bay projects.
   49    §  2.  Article  54 of the environmental conservation law is amended by
   50  adding a new title 14 to read as follows:
   51                                  TITLE 14
   52        STATE PARKS AND LANDS INFRASTRUCTURE AND STEWARDSHIP PROJECTS
   53  Section 54-1401. Definitions.
   54          54-1402. State parks and lands  infrastructure  and  stewardship
   55                     projects.
 
       S. 6257                            29                            A. 9759
 
    1  § 54-1401. Definitions.
    2    As used in this title:
    3    1.  "Stewardship"  shall  mean  the  care of the lands, facilities and
    4  natural and cultural resources under the jurisdiction of the  department
    5  and  the office of parks, recreation and historic preservation on behalf
    6  of the public, and the provision of public access thereto.
    7    2. "State parks  and  lands  infrastructure"  shall  mean  state  park
    8  resources,  recreational  facilities  and  historic  sites and any other
    9  property, real or personal, under the jurisdiction of the department and
   10  the office of parks, recreation and historic preservation, together with
   11  machinery, equipment, furnishings and fixtures relating thereto or  used
   12  in connection therewith.
   13    3.  "State  parks  and  lands infrastructure and stewardship projects"
   14  shall mean all costs incurred or to be incurred by or on behalf  of  the
   15  department and the office of parks, recreation and historic preservation
   16  for  the  purpose of preserving, improving or rehabilitating state parks
   17  and lands infrastructure. Such projects may include, but are not limited
   18  to: natural resource and habitat restoration and protection such as  the
   19  protection and management of biological, land, geological, archeological
   20  and  other natural resources, survey and inventory, scientific research,
   21  planning  and  analysis,  and  development  of  unit  management  plans;
   22  projects  to  improve  public  access including access opportunities for
   23  people with disabilities by developing, restoring, reconstructing, reha-
   24  bilitating and maintaining physical facilities, including but not limit-
   25  ed to buildings, roads, bridges and waste disposal systems; projects  to
   26  develop,  maintain,  or improve marine resource facilities, water access
   27  facilities, recreational trails, campgrounds, day use areas, fish hatch-
   28  eries,  public  beach  facilities,  visitor  centers,  interpretive  and
   29  conservation education facilities; and historic preservation projects to
   30  improve,  restore  or  rehabilitate  property  listed  on  the  state or
   31  national registers of historic places to protect the historic,  cultural
   32  or architectural significance thereof.
   33  § 54-1402. State   parks   and   lands  infrastructure  and  stewardship
   34               projects.
   35    1. The commissioner and the  commissioner  of  parks,  recreation  and
   36  historic  preservation are authorized to undertake state parks and lands
   37  infrastructure and stewardship projects.
   38    2. No monies shall be expended for state parks and  lands  infrastruc-
   39  ture and stewardship projects except pursuant to an appropriation there-
   40  for.
   41    §  3.  Subdivision  7  of  section  92-s  of  the state finance law is
   42  REPEALED.
   43    § 4. Subdivision 2 of section 54-0501 of the  environmental  conserva-
   44  tion  law,  as amended by section 17 of part A of chapter 58 of the laws
   45  of 1998, is amended and a new subdivision 5 is added to read as follows:
   46    2.  "Municipal [Landfill] landfill closure project"  means  activities
   47  undertaken to close, including by reclamation, a landfill owned or oper-
   48  ated by a municipality to achieve compliance with regulations promulgat-
   49  ed by the department, [or] activities undertaken to implement a landfill
   50  gas  management  system project, or activities undertaken to implement a
   51  beneficial end-use project.
   52    5. "Beneficial end-use" means a public recreational  use,  such  as  a
   53  park, hiking trail, golf course, nature area, baseball field, ski slope,
   54  or  sledding hill, or other public use demonstrated to the department to
   55  be beneficial to a community.
 
       S. 6257                            30                            A. 9759
 
    1    § 5. Section 54-0503 of the environmental conservation law is  amended
    2  by adding a new subdivision 5 to read as follows:
    3    5.  For  beneficial  end-use  projects,  the  landfill  must have been
    4  closed, and currently be, in  compliance  with  the  department's  solid
    5  waste  management regulations which became effective on December thirty-
    6  first, nineteen hundred eighty-eight or any subsequent revisions to such
    7  regulations.
    8    § 6. Subdivision 1 of section 54-0505 of the  environmental  conserva-
    9  tion  law,  as  added  by chapter 610 of the laws of 1993, is amended to
   10  read as follows:
   11    1. State assistance  payments  shall  be  approved  only  for  closure
   12  projects  that  include plans for closure, post-closure and construction
   13  in accordance with the department's solid waste  management  regulations
   14  applicable  to  new projects[,] which were in effect six months prior to
   15  the date of submittal of the final application.
   16    § 7. Paragraphs b and c of subdivision 2 of  section  54-0507  of  the
   17  environmental  conservation  law, as added by chapter 610 of the laws of
   18  1993, are amended and a new paragraph d is added to read as follows:
   19    b. any adverse environmental impact resulting from the municipal land-
   20  fill, including effects on groundwater; [and]
   21    c. the ability of the municipality to pay for the costs of the munici-
   22  pal landfill closure[.] project; and
   23    d. for beneficial end-use projects, the community value of the  recre-
   24  ational use to be provided to the public.
   25    §  8.  Subdivision 2 of section 54-0509 of the environmental conserva-
   26  tion law, as amended by section 18 of part A of chapter 58 of  the  laws
   27  of 1998, is amended to read as follows:
   28    2.  An agreement by the commissioner to make state assistance payments
   29  toward  the  cost of the project by periodically reimbursing the munici-
   30  pality for costs incurred during the progress of the project [to]. For a
   31  municipal landfill closure project which does not include  a  beneficial
   32  end-use  project,  such reimbursement shall be a maximum of either fifty
   33  percent of the cost, or [seventy-five] ninety percent of the cost for  a
   34  municipality  with  a  population  smaller  than  thirty-five hundred as
   35  determined by the current  federal  decennial  census,  or  two  million
   36  dollars,   whichever  is  less.    For  a  beneficial  end-use  project,
   37  reimbursement shall be a maximum of either fifty percent of the cost, or
   38  ninety percent of the cost for a municipality with a population  smaller
   39  than  thirty-five hundred as determined by the current federal decennial
   40  census, or five hundred thousand dollars, whichever is less. The commis-
   41  sioner may consider landfill gas management system projects and  benefi-
   42  cial end-use projects separately from landfill closure projects.  [Such]
   43  Project  costs are subject to final computation and determination by the
   44  commissioner upon completion of the project, and shall  not  exceed  the
   45  maximum  cost  set forth in the contract.  For purposes of this subdivi-
   46  sion, the approved project cost shall be reduced by the  amount  of  any
   47  specific  state  assistance  payments  for  municipal  landfill  closure
   48  project purposes received by the municipality from any source; provided,
   49  however, that non-specific state assistance payments,  such  as  amounts
   50  paid  pursuant to section fifty-four of the state finance law, shall not
   51  be included in such cost reduction.
   52    § 9. Subdivision 2 of section 17-1403 of the  environmental  conserva-
   53  tion  law  is  REPEALED  and  a  new  subdivision  2 is added to read as
   54  follows:
   55    2. "Municipality" means a local public  authority  or  public  benefit
   56  corporation;  county;  city;  town; village; soil and water conservation
 
       S. 6257                            31                            A. 9759
 
    1  district; school district; supervisory district;  district  corporation;
    2  improvement  district  within a county, city, town or village; or Indian
    3  nation or tribe recognized by the state or  the  United  States  with  a
    4  reservation wholly or partly within the boundaries of New York state; or
    5  any combination thereof.
    6    §  10. Subdivision 3 of section 17-1403 of the environmental conserva-
    7  tion law, as added by chapter 436 of the laws of  1989,  is  amended  to
    8  read as follows:
    9    3. "Nonpoint source" means any source of water pollution or pollutants
   10  which  is not a discrete conveyance or a permitted point source [permit-
   11  ted pursuant to title seven or eight of this article].
   12    § 11. Paragraphs b and e of subdivision 1 and subdivision 5 of section
   13  17-1409 of the environmental conservation law, as added by  chapter  436
   14  of the laws of 1989, are amended to read as follows:
   15    b.  the  project  must  be proposed for implementation by a [municipal
   16  corporation, or by a district at the formal request of such corporation]
   17  municipality;
   18    e. the [municipal corporation] municipality must have funds  available
   19  to pay for its share of the eligible project costs.
   20    5.  Matching  grants  awarded  pursuant to this section shall be up to
   21  [fifty] seventy-five percent of the eligible  costs  for  any  specified
   22  project.
   23    § 12.  This act shall take effect April 1, 2002; provided, however, if
   24  this  act  shall become a law after such date it shall take effect imme-
   25  diately and shall be deemed to have been in full force and effect on and
   26  after April 1, 2002.
 
   27                                   PART J
 
   28    Section 1. Subdivision 2  of  section  17-1009  of  the  environmental
   29  conservation  law,  as  amended  by  chapter 442 of the laws of 2001, is
   30  amended to read as follows:
   31    2. All owners shall register the facility  with  the  department.  The
   32  department  is  authorized to assess a fee according to a schedule based
   33  on the size and type of  facility,  not  to  exceed  two  hundred  fifty
   34  dollars per facility. Such fee shall be paid at the time of registration
   35  or  registration renewal. Registration shall be renewed every five years
   36  or whenever title to a facility is transferred, whichever occurs  first.
   37  In  addition  to  such  registration  requirements  and pursuant to leak
   38  detection requirements set forth  in  section  17-1005  of  this  title,
   39  notwithstanding  any  other  provision  of  law, rule or regulation, the
   40  department shall duly notify the facility owner of the  requirement  for
   41  such  owner  to  perform the required tightness test on a petroleum bulk
   42  storage tank no less than forty-five days prior to the date of the  test
   43  expiration  on the tank. All fees collected pursuant to this subdivision
   44  shall be deposited in the New York environmental  protection  and  spill
   45  compensation  fund  established pursuant to section one hundred seventy-
   46  nine of the navigation law.   The department may waive  payment  of  the
   47  registration  fee for a facility at which the tanks are to be removed or
   48  otherwise permanently taken out of  service  and  the  facility  is  the
   49  subject of:
   50    (a) An "environmental restoration project," as such term is defined in
   51  subdivision  seven  of section 56-0101 of this chapter, implemented by a
   52  municipality, the cost of which is payable in part by the state pursuant
   53  to a contract authorized by section 56-0503 of this chapter;
 
       S. 6257                            32                            A. 9759
 
    1    (b) An "inactive hazardous waste disposal site remedial  program,"  as
    2  such  term  is  defined  in subdivision three of section 27-1301 of this
    3  chapter, implemented by the department, the cost of which is paid by the
    4  state according to statute;
    5    (c)  A  "hazardous  waste  site  remediation project," as such term is
    6  defined in subdivision nine of section 52-0101 of this  chapter,  imple-
    7  mented  by  a  municipality, the cost of which is payable in part by the
    8  state pursuant to a contract authorized by section 52-0303 of this chap-
    9  ter;
   10    (d) Any remediation implemented pursuant to an order or agreement with
   11  the department by any person who is not responsible for the disposal  of
   12  hazardous  waste  or  the discharge of petroleum according to applicable
   13  principles of statutory or common law liability, or who is liable solely
   14  as a result of ownership or operation of the facility subsequent to  the
   15  disposal of hazardous waste or the discharge of petroleum; or
   16    (e)  Any "cleanup and removal," as such term is defined in subdivision
   17  four of section one hundred seventy-two of the  navigation  law,  imple-
   18  mented by the department, the cost of which is paid by the state accord-
   19  ing to statute.
   20    §  2.  Subdivision 3 of section 27-0923 of the environmental conserva-
   21  tion law, as added by chapter 38 of the laws of  1985,  paragraph  d  as
   22  added  by  chapter  512  of the laws of 1986 and paragraph e as added by
   23  chapter 423 of the laws of 1990, is amended to read as follows:
   24    3. a. Notwithstanding any provision of this section to  the  contrary,
   25  no  special  assessment  shall  be  imposed  under  this  section on the
   26  resource recovery of any hazardous waste; provided,  however,  that  any
   27  materials  remaining  from  resource recovery which are hazardous wastes
   28  and which are subsequently disposed of, treated, or  incinerated,  shall
   29  be  subject  to  the  special  assessments  imposed by this section. For
   30  purposes of this  section,  resource  recovery  shall  not  include  the
   31  removal of water from a hazardous waste.
   32    b. In the case of a fraction of a ton, the special assessments imposed
   33  by this section shall be the same fraction of the amount of such special
   34  assessment imposed on a whole ton.
   35    c.  For  the  purpose  of  this section, generation of hazardous waste
   36  shall not include retrieval or creation of hazardous waste which must be
   37  disposed of [due to remediation of an inactive hazardous waste  disposal
   38  site  in  New  York state as defined in section 27-1301 of this chapter]
   39  under an order of or agreement with the  department  pursuant  to  title
   40  thirteen or title fourteen of this article, or under a contract with the
   41  department pursuant to title five of article fifty-six of this chapter.
   42    d.  No  portion  of the special assessments collected pursuant to this
   43  section shall be used for any purpose if such use,  under  federal  law,
   44  would preclude the collection of such special assessment.
   45    e.  Notwithstanding any provision of this section to the contrary, the
   46  actual method utilized to dispose of or treat any hazardous waste  shall
   47  govern  the  determination  of  the  rate  per  ton applicable under the
   48  special assessments imposed by this  section,  even  if  such  hazardous
   49  waste  was  designated  for  removal,  removed,  stored  or received for
   50  disposal or treatment by a method different  than  the  method  actually
   51  utilized.  Where any such special assessment with respect to any hazard-
   52  ous waste is reported and paid on the basis of a rate per ton  which  is
   53  greater  than  the rate per ton applicable to the actual method utilized
   54  to dispose of or treat such hazardous waste, the difference between  the
   55  amount  reported  and  paid  and  the  amount due using the rate per ton
   56  applicable to the actual method utilized shall be considered an overpay-
 
       S. 6257                            33                            A. 9759
 
    1  ment of such  special  assessment.  The  commissioner  of  taxation  and
    2  finance  shall  credit or refund such overpayment in the manner provided
    3  and subject to the conditions contained in article twenty-seven  of  the
    4  tax law, as incorporated by subdivision six of this section.
    5    §  3.  Subdivisions 1, 3 and 4 of section 27-1301 of the environmental
    6  conservation law, subdivision 1 as amended by chapter 857 of the laws of
    7  1982 and subdivisions 3 and 4 as added by chapter 282  of  the  laws  of
    8  1979, are amended to read as follows:
    9    1. "Hazardous waste" means a waste which appears on the list or satis-
   10  fies  the  characteristics  promulgated  by the commissioner pursuant to
   11  section 27-0903 of this [chapter and, until, but not after, the  promul-
   12  gation  of such list, a waste or combination of wastes, which because of
   13  its quantity, concentration, or physical, chemical or infectious charac-
   14  teristics may:
   15    a. Cause, or significantly contribute to an increase in  mortality  or
   16  an   increase  in  serious  irreversible  or  incapacitating  reversible
   17  illness; or
   18    b. Pose a substantial present or potential hazard to human  health  or
   19  the  environment  when improperly treated, stored, transported, disposed
   20  or otherwise managed] article and any substance  which  appears  on  the
   21  list  promulgated pursuant to section 37-0103 of this chapter; provided,
   22  however, that the term "hazardous waste" does not include:
   23    a. Natural gas, natural gas liquids, liquefied natural gas,  synthetic
   24  gas  usable for fuel, or mixtures of natural gas and such synthetic gas;
   25  nor
   26    b. The residue of emissions from the engine exhaust of a  motor  vehi-
   27  cle,  rolling  stock,  aircraft,  vessel,  or  pipeline  pumping station
   28  engine; nor
   29    c. Source, byproduct, or special nuclear material from a nuclear inci-
   30  dent, as those terms are defined in the Atomic Energy Act  of  1954,  if
   31  such  release  is  subject  to  requirements  with  respect to financial
   32  protection established under section 170 of such act  (42  U.S.C.  2210)
   33  or,  for  the  purpose of section 104 of the comprehensive environmental
   34  response, compensation and liability act of 1980 (42 U.S.C. 9604) or any
   35  other response action, any source, byproduct, or special nuclear materi-
   36  al from any processing site designated under section 102(a)(1) or 302(a)
   37  of the Uranium Mill Tailings Radiation Control Act of  1978  (42  U.S.C.
   38  7912(a)(1) or 7942(a)); nor
   39    d.  Petroleum  as  defined  in  section one hundred seventy-two of the
   40  navigation law, even if appearing on the list  promulgated  pursuant  to
   41  section 37-0103 of this chapter.
   42    3.  "Inactive  hazardous  waste  disposal site remedial program" means
   43  activities undertaken to eliminate, remove, abate,  control  or  monitor
   44  health  and/or  environmental hazards or potential hazards in connection
   45  with inactive hazardous waste disposal sites or to treat or  dispose  of
   46  wastes  and  waste contaminated materials from such sites including, but
   47  not limited to, grading, contouring, trenching, grouting, capping, exca-
   48  vation,  transporting,  incineration,  chemical  treatment,   biological
   49  treatment  or  construction of leachate collection and treatment facili-
   50  ties.  The department may include institutional  controls  and/or  engi-
   51  neering  controls  as components of an inactive hazardous waste disposal
   52  site remedial program but only if the owner of such real property  annu-
   53  ally  submits  to  the  department  a written statement certifying under
   54  penalty of perjury  that  the  institutional  controls  and  engineering
   55  controls employed to remediate such contamination are unchanged from the
   56  previous  certification and that nothing has occurred that would consti-
 
       S. 6257                            34                            A. 9759
 
    1  tute a violation of any of such controls, and gives access to such  real
    2  property  reasonable under the circumstances to evaluate continued main-
    3  tenance of such controls. The department shall establish and maintain  a
    4  database  with relevant information on such controls and shall make such
    5  information available for public inspection at the office of the  county
    6  clerk  or  register  for each county and at the office of the town clerk
    7  for each town in Suffolk and Nassau counties.
    8    4. "Person" means an individual, trust,  firm,  joint  stock  company,
    9  corporation,  partnership, association, state, municipality, commission,
   10  political subdivision of a state,  public  benefit  corporation  or  any
   11  interstate body.
   12    a.  Such  term  includes  any  person  owning or operating an inactive
   13  hazardous waste disposal site but does not include a person  that  is  a
   14  lender that, without participating in the management of such site, holds
   15  indicia  of  ownership primarily to protect the security interest of the
   16  person in such site; nor does it include a person that is a lender  that
   17  did  not  participate  in  management of such site prior to foreclosure,
   18  notwithstanding that the person forecloses on such site and after  fore-
   19  closure,  sells, re-leases (in the case of a lease finance transaction),
   20  or liquidates such site, maintains business activities, winds  up  oper-
   21  ations,  undertakes in a non-negligent manner remedial actions under the
   22  direction of the department, with respect to such  site,  or  takes  any
   23  other  measure  to preserve, protect, or prepare such site prior to sale
   24  or disposition, if the person seeks to sell, re-lease (in the case of  a
   25  lease  finance transaction), or otherwise divest the person of such site
   26  at the earliest practicable commercially reasonable time, on commercial-
   27  ly reasonable terms, taking into account market conditions and legal and
   28  regulatory requirements. For purposes of this paragraph:
   29    (i) the term "participate in management" means actually  participating
   30  in  the  management  or  operational  affairs of such site; and does not
   31  include merely having the capacity  to  influence,  or  the  unexercised
   32  right to control, such site's operations;
   33    (ii)  a  person  that  is a lender and that holds indicia of ownership
   34  primarily to protect a security interest in such site shall  be  consid-
   35  ered  to  participate in management only if, while the borrower is still
   36  in possession of such site, the person exercises decisionmaking  control
   37  over  the  environmental  compliance related to such site, such that the
   38  person has undertaken responsibility for the hazardous waste handling or
   39  disposal practices related to such site; or exercises control at a level
   40  comparable to that of a manager of such site, such that the  person  has
   41  assumed  or manifested responsibility for the overall management of such
   42  site encompassing day-to-day decisionmaking  with  respect  to  environ-
   43  mental  compliance;  or over all or substantially all of the operational
   44  functions (as distinguished from financial or administrative  functions)
   45  of such site other than the function of environmental compliance;
   46    (iii) the term "participate in management" does not include performing
   47  an  act or failing to act prior to the time at which a security interest
   48  is created in such site;
   49    (iv) the term "participate in management" does not include  holding  a
   50  security  interest  or  abandoning  or  releasing  a  security interest;
   51  including in the terms of an extension of credit, or in  a  contract  or
   52  security  agreement  relating to the extension, a covenant, warranty, or
   53  other term or condition that relates to environmental compliance;  moni-
   54  toring  or enforcing the terms and conditions of the extension of credit
   55  or security interest; monitoring or undertaking one or more  inspections
   56  of  such  site;  requiring  a  response  action or other lawful means of
 
       S. 6257                            35                            A. 9759
 
    1  addressing the release or threatened release of  a  hazardous  waste  in
    2  connection with  such site prior to, during, or on the expiration of the
    3  term  of the extension of credit; providing financial or other advice or
    4  counseling in an effort to mitigate, prevent, or cure default or diminu-
    5  tion  in the value of such site; restructuring, renegotiating, or other-
    6  wise agreeing to alter the terms and  conditions  of  the  extension  of
    7  credit  or  security  interest; exercising forbearance; exercising other
    8  remedies that may be available under applicable law for the breach of  a
    9  term  or  condition of the extension of credit or security agreement; or
   10  conducting in a non-negligent manner a remedial action directly or under
   11  the direction of the department, if the actions do not rise to the level
   12  of participating in management (within the meaning of subparagraphs  (i)
   13  and (ii) of this paragraph);
   14    (v)  the  term  "extension  of credit" includes a lease finance trans-
   15  action in which the lessor does not initially select  such  leased  site
   16  and does not during the lease term control the daily operations or main-
   17  tenance  of  such site; or that  conforms with regulations issued by the
   18  appropriate federal banking agency (as defined in 12 USC  section  1813)
   19  or  the  superintendent  of  banks  or  with  regulations  issued by the
   20  National Credit Union Administrative Board, as appropriate;
   21    (vi) the term "financial or administrative function" includes a  func-
   22  tion  such  as  that  of  a  credit  manager,  accounts payable officer,
   23  accounts receivable officer, personnel manager,  comptroller,  or  chief
   24  financial officer, or a similar function;
   25    (vii)  the  terms  "foreclosure"  and  "foreclose" mean, respectively,
   26  acquiring and to acquire, such site through purchase  at  sale  under  a
   27  judgment  or  decree,  power of sale, or nonjudicial foreclosure sale; a
   28  deed in lieu of foreclosure, or similar conveyance from  a  trustee;  or
   29  repossession,  if  such  site  was  security  for an extension of credit
   30  previously contracted; conveyance pursuant to  an  extension  of  credit
   31  previously  contracted,  including the termination of a lease agreement;
   32  or any other formal or informal manner by which the person acquires, for
   33  subsequent disposition, title to or possession of such site in order  to
   34  protect the security interest of the person;
   35    (viii)  the  term "lender" means an insured depository institution (as
   36  defined in 12 USC Section 1813); an insured credit union  (as defined in
   37  12 USC section 1752); a bank or association  chartered  under  the  Farm
   38  Credit Act of 1971 (12 U.S.C.  2001 et seq.); a leasing or trust company
   39  that  is  an  affiliate of an insured depository institution; any person
   40  (including a successor or assignee of any such person) that makes a bona
   41  fide extension of credit to or takes or  acquires  a  security  interest
   42  from  a nonaffiliated person; the Federal National Mortgage Association,
   43  the Federal Home Loan Mortgage  Corporation,  the  Federal  Agricultural
   44  Mortgage  Corporation,  or  any  other entity that in a bona fide manner
   45  buys or sells loans or interests in loans;  a  person  that  insures  or
   46  guarantees against a default in the repayment of an extension of credit,
   47  or  acts as a surety with respect to an extension of credit, to a nonaf-
   48  filiated person; and a person that provides  title  insurance  and  that
   49  acquires such site as a result of assignment or conveyance in the course
   50  of underwriting claims and claims settlement;
   51    (ix)  the term "operational function" includes a function such as that
   52  of a facility or plant  manager,  operations  manager,  chief  operating
   53  officer, or chief executive officer; and
   54    (x)  the  term  "security interest" includes a right under a mortgage,
   55  deed of trust, assignment, judgment lien,  pledge,  security  agreement,
   56  factoring  agreement,  or lease and any other right accruing to a person
 
       S. 6257                            36                            A. 9759
 
    1  to secure the repayment of money, the performance  of  a  duty,  or  any
    2  other obligation by a nonaffiliated person.
    3    b.  Such  term  includes  any  person  owning or operating an inactive
    4  hazardous waste disposal site but does not include the state of New York
    5  or a public corporation which acquired, and thereafter retained  without
    6  participating  in  the  management  of  such  site, ownership or control
    7  involuntarily by virtue of its function as sovereign. Neither the  state
    8  of  New  York  nor any public corporation shall incur under this chapter
    9  any liability as to matters within the jurisdiction of the department as
   10  a result of actions taken in response to an  emergency  created  by  the
   11  release  or  threatened  release  of  hazardous waste by another person,
   12  provided that such actions by the state or public  corporation  did  not
   13  constitute  reckless, willful, wanton or intentional misconduct. As used
   14  in this paragraph:
   15    (i) "public corporation" means a public corporation as defined in  the
   16  general construction law;
   17    (ii)  involuntary acquisition of ownership or control includes, but is
   18  not limited to, the following:
   19    (A) acquisitions by the state or a public corporation in its  capacity
   20  as   sovereign,   including   acquisitions   pursuant   to   abandonment
   21  proceedings, or escheat, or any other circumstance of involuntary acqui-
   22  sition in its capacity as sovereign;
   23    (B) acquisitions by the state or a public corporation, or  its  agent,
   24  acting as a conservator or receiver pursuant to a clear and direct stat-
   25  utory mandate or regulatory authority;
   26    (C) acquisitions of assets through foreclosure and its equivalents, or
   27  otherwise,  by the state or a public corporation in the course of admin-
   28  istering a loan, loan guarantee or loan insurance program;
   29    (D) acquisitions by the state or  a  public  corporation  pursuant  to
   30  seizure or forfeiture authority; and
   31    (E) acquisitions by the state or a public corporation as the result of
   32  tax delinquency proceedings, provided, that such ownership or control is
   33  not retained primarily for investment purposes;
   34    (iii) "management participation" means that the state or public corpo-
   35  ration  is actually participating  in the management or operation of the
   36  property but does not include the mere capacity to influence, ability to
   37  influence or unexercised right to control the operation  of the  proper-
   38  ty.
   39    Nothing contained in this paragraph affects the applicability of para-
   40  graph  a of this subdivision in favor of a holder of a security interest
   41  according to the terms thereof.
   42    c. Such term includes any  person  owning  or  operating  an  inactive
   43  hazardous waste disposal site, including a fiduciary; provided, however,
   44  that  such  liability  on  the  part of a fiduciary shall not exceed the
   45  assets held in the fiduciary capacity if such person is not liable inde-
   46  pendently of such person's ownership as a fiduciary or actions taken  in
   47  a fiduciary capacity including, but not limited to, the fiduciary negli-
   48  gently  causing  or contributing to the release or threatened release of
   49  hazardous waste at such site.
   50    (i) For purposes of this paragraph:
   51    (A) the term "fiduciary" means a person  acting  for  the  benefit  of
   52  another  party  as  a bona fide trustee; executor; administrator; custo-
   53  dian; guardian of estates or guardian ad litem;  receiver;  conservator;
   54  committee  of  estates of incapacitated person; personal representative;
   55  trustee (including a successor  to a trustee) under an indenture  agree-
   56  ment,  trust  agreement, lease, or similar financing agreement, for debt
 
       S. 6257                            37                            A. 9759
 
    1  securities, certificates of interest or certificates of participation in
    2  debt securities, or other forms of indebtedness as to which the  trustee
    3  is not, in the capacity of trustee, the lender; or representative in any
    4  other  capacity  that  the  department,  after  providing public notice,
    5  determines to be similar to the various capacities previously  described
    6  in  this  paragraph; and does not include either a person that is acting
    7  as a fiduciary with respect to a trust or other  fiduciary  estate  that
    8  was  organized  for  the  primary purpose of, or is engaged in, actively
    9  carrying on a trade or business for profit unless  the  trust  or  other
   10  fiduciary  estate  was created as part of, or to facilitate, one or more
   11  estate plans or because of the incapacity  of  a  natural  person  or  a
   12  person  that acquires ownership or control of a property with the objec-
   13  tive purpose of avoiding liability of the person or any other person.
   14    (B) the term "fiduciary capacity" means the capacity of  a  person  in
   15  holding title to a property, or otherwise having control of or an inter-
   16  est  in  a property, pursuant to the exercise of the responsibilities of
   17  the person as a fiduciary.
   18    (ii) Nothing in this paragraph affects the  rights  or  immunities  or
   19  other  defenses  that  are  available under law that are applicable to a
   20  person subject to this subdivision;  or  creates  any  liability  for  a
   21  person  or  a  private  right of action against a fiduciary or any other
   22  person.
   23    (iii) Nothing in this paragraph applies to a  person  if  that  person
   24  acts  in  a  capacity other than that of a fiduciary or in a beneficiary
   25  capacity and in that capacity, directly or indirectly  benefits  from  a
   26  trust  or  fiduciary  relationship;  or is a beneficiary and a fiduciary
   27  with respect to the same fiduciary estate and as a  fiduciary,  receives
   28  benefits  that  exceed  customary  or reasonable compensation, and inci-
   29  dental benefits, permitted under other applicable law.
   30    (iv) This paragraph does not  preclude  a  claim  under  this  chapter
   31  against the assets of the estate or trust administered by the fiduciary;
   32  or  a  nonemployee agent or independent contractor retained by a fiduci-
   33  ary.
   34    d. Such term includes any  person  owning  or  operating  an  inactive
   35  hazardous waste disposal site, including an industrial development agen-
   36  cy  created  under  the general municipal law, other than one that holds
   37  bare legal title to such site;  has  not  participated  with  any  party
   38  responsible  under  law  for the remediation of contamination in, on, or
   39  from such site to attempt to  have  such  a  party  avoid  its  remedial
   40  liability;  has not exercised any contractual rights it may have or had,
   41  if any, under the lease, guarantee, or  any  other  financing  agreement
   42  pursuant to which the industrial development agency would assume control
   43  over  the  actual operation of the site; and has not taken possession or
   44  control of the site. Nothing in this paragraph  affects  the  rights  or
   45  immunities  or  other  defenses  that  are  available under law that are
   46  applicable to an industrial development agency; or creates any liability
   47  for a person or a private right of action against an industrial develop-
   48  ment agency or any other person.
   49    § 4. Subdivision 1 of section 27-1303 of the  environmental  conserva-
   50  tion  law,  as  added  by chapter 282 of the laws of 1979, is amended to
   51  read as follows:
   52    1.  [Each] a.  For a period of one year after the  effective  date  of
   53  the  chapter  of  the  laws of two thousand two enacting this provision,
   54  each county shall, for the purpose of locating inactive hazardous  waste
   55  disposal  sites  as that term was defined on January first, two thousand
   56  two, survey its jurisdiction to determine the existence and location  of
 
       S. 6257                            38                            A. 9759
 
    1  suspected  inactive  hazardous  waste  disposal sites and shall[, within
    2  four months of the effective date of this  title,]  annually  thereafter
    3  submit  a  report to the department describing the location of each such
    4  suspected site and the reasons for such suspicion.
    5    b.  Commencing one year after the effective date of the chapter of the
    6  laws of two thousand two which added this paragraph, each county  shall,
    7  for  the  purpose  of  locating inactive hazardous waste disposal sites,
    8  survey its jurisdiction to  determine  the  existence  and  location  of
    9  suspected  inactive  hazardous  waste  disposal sites and shall annually
   10  thereafter submit a report to the department describing the location  of
   11  each such suspected site and the reasons for such suspicion.
   12    §  5.  Paragraph b of subdivision 4 of section 27-1305 of the environ-
   13  mental conservation law, as amended by chapter 857 of the laws  of  1982
   14  and the opening paragraph as amended by chapter 649 of the laws of 1988,
   15  is amended to read as follows:
   16    b.  The  department  shall, as part of the registry, assess and, based
   17  upon new information received, reassess by March  thirty-first  of  each
   18  year,  in  cooperation  with the department of health, the relative need
   19  for action at each site to  remedy  environmental  and  health  problems
   20  resulting from the presence of hazardous wastes at such sites; provided,
   21  however,  that  if  at  the time of such assessment or reassessment, the
   22  department has not placed a site in classification 1 or 2, as  described
   23  in  subparagraphs  one  and  two of this paragraph, and such site is the
   24  subject of negotiations for, or implementation of, a voluntary agreement
   25  pursuant to title  fourteen  of  this  article,  obligating  the  person
   26  subject  to  such  agreement to, at a minimum, eliminate or mitigate all
   27  significant threats to the public health and environment  posed  by  the
   28  hazardous  waste  pursuant to such agreement, the department shall defer
   29  its assessment or reassessment during the period such person is  engaged
   30  in  good faith negotiations to enter into such an agreement and, follow-
   31  ing its execution, is in compliance with the terms of such agreement and
   32  shall assess or reassess such site upon completion of remediation to the
   33  department's satisfaction. In making  its  assessments,  the  department
   34  shall place every site in one of the following classifications:
   35    (1)  Causing  or presenting an imminent danger of causing irreversible
   36  or irreparable damage to the  public  health  or  environment--immediate
   37  action required;
   38    (2)  Significant  threat  to  the public health or environment--action
   39  required;
   40    (3) Does not present a significant threat  to  the  public  health  or
   41  environment--action may be deferred;
   42    (4) Site properly closed--requires continued management;
   43    (5)  Site properly closed, no evidence of present or potential adverse
   44  impact--no further action required.
   45    § 6. The opening paragraph of subdivision 5 of section 27-1305 of  the
   46  environmental  conservation  law, as added by chapter 857 of the laws of
   47  1982, is amended to read as follows:
   48    The department shall[, as soon as possible but in no event later  than
   49  January  first,  nineteen  hundred  eighty-four,]  annually  prepare and
   50  submit in writing [a] an updated "state inactive hazardous waste remedi-
   51  al plan," hereinafter referred to as "the plan" [to the state  superfund
   52  management board. Such board shall then approve of the plan or make such
   53  modification  as  it  is  empowered to do pursuant to section 27-1319 of
   54  this chapter and submit the approved plan  or  modified  plan],  to  the
   55  governor and the legislature on or before [March first, nineteen hundred
 
       S. 6257                            39                            A. 9759
 
    1  eighty-four]  July  first  of each year.   In [proposing,] preparing and
    2  compiling and updating the plan, the department shall:
    3    §  7.  Subdivisions 3, 4 and 5 of section 27-1309 of the environmental
    4  conservation law, as amended by chapter 857 of the  laws  of  1982,  are
    5  amended to read as follows:
    6    3.  Any  duly  designated officer or employee of the department, or of
    7  any state agency, and any agent, consultant, contractor or other person,
    8  including an employee, agent, consultant or contractor of a  responsible
    9  person acting at the direction of the department, so authorized in writ-
   10  ing by the commissioner, may enter any inactive hazardous waste disposal
   11  site  and  areas  near such site and inspect and take samples of wastes,
   12  soils, air, surface  water  and  groundwater.  In  order  to  take  such
   13  samples,  the department or authorized person may utilize or cause to be
   14  utilized such sampling methods as it determines to be necessary  includ-
   15  ing, but not limited to, soil borings and monitoring wells.
   16    4.  The  department  or  authorized person shall not take any samples,
   17  involving the substantial disturbance of the ground surface of any prop-
   18  erty unless it has made a reasonable effort to identify the owner of the
   19  property and to notify such owner of the [department's] intent  to  take
   20  such  samples.  If  the  owner  can  be identified, the department shall
   21  provide such owner with a minimum of ten days written  notice  of  [its]
   22  the  intent to take such samples unless the commissioner makes a written
   23  determination that such ten day notice will not allow the department  to
   24  protect the environment or public health, in which case two days written
   25  notice shall be sufficient. Any inspection of the property and each such
   26  taking  of  samples  shall  take  place at reasonable times and shall be
   27  commenced and completed with  reasonable  promptness.  If  any  officer,
   28  employee,  agent,  consultant, contractor, or other person so authorized
   29  in writing by the commissioner obtains any samples prior to leaving  the
   30  premises he shall give to the owner or operator a receipt describing the
   31  sample  obtained  and,  if  requested, a portion of such sample equal in
   32  volume or weight to the portion retained. If any  analysis  is  made  of
   33  such  samples, a copy of the results of such analysis shall be furnished
   34  promptly to the owner or operator. Upon the completion of  all  sampling
   35  activities,  the  department or authorized person shall remove, or cause
   36  to be removed, all equipment and well machinery and  return  the  ground
   37  surface  of  the property to its condition prior to such sampling unless
   38  the department or authorized person and  the  owner  of  property  shall
   39  otherwise agree.
   40    5.  The expense of any such sampling and analysis shall be paid by the
   41  department, but may be recovered from  any  responsible  person  in  any
   42  action  or  proceeding  brought  pursuant  to  this title or common law;
   43  provided, that if the person  so  authorized  in  writing  shall  be  an
   44  employee, agent, consultant or contractor of a responsible person acting
   45  at  the direction of the department, then the expense of any such sampl-
   46  ing and analysis shall be paid by the responsible person.
   47    § 8. Paragraph b of subdivision 1 of section 27-1313 of  the  environ-
   48  mental  conservation law is relettered paragraph c and a new paragraph b
   49  is added to read as follows:
   50    b.  The department shall have the authority to require the development
   51  and implementation of a  department-approved  inactive  hazardous  waste
   52  disposal  site  remedial program; provided, however, that the department
   53  will use the following in  developing  and  implementing  such  remedial
   54  program:
   55    (i)  The objective of such remedial program shall be the protection of
   56  the public health and environment, with the minimum objective  being  to
 
       S. 6257                            40                            A. 9759
 
    1  eliminate  or  mitigate all significant threats to the public health and
    2  environment presented by hazardous waste through proper  application  of
    3  scientific  and engineering principles and such remedial program must be
    4  selected upon due consideration of the following factors:
    5    (A)  conformance to standards and criteria that are generally applica-
    6  ble, consistently applied, and officially promulgated, that  are  either
    7  directly  applicable,  or that are not directly applicable but are rele-
    8  vant and appropriate, unless good cause exists why conformity should  be
    9  dispensed  with,  and  with consideration being given to guidance deter-
   10  mined, after the exercise of engineering judgment, to be applicable;
   11    (B) overall protectiveness of the public health and environment;
   12    (C) short-term effectiveness;
   13    (D) long-term effectiveness;
   14    (E) reduction  of  toxicity,  mobility,  and  volume  with  treatment;
   15  addressing  a  hot  spot of hazardous waste that permanently and signif-
   16  icantly reduces the volume, toxicity, and/or mobility of hazardous waste
   17  is to be preferred over a method that does not do so. The  hierarchy  of
   18  remedial  technologies  shall  be  as set forth under section 27-0105 of
   19  this article;
   20    (F) cost;
   21    (G) implementability;
   22    (H) community acceptance; and
   23    (I) land use: the current, intended, and reasonably anticipated future
   24  land uses for the property and its surroundings, if ascertainable.
   25    (ii) Notwithstanding anything to the contrary in  this  paragraph,  at
   26  sites listed pursuant to section 27-1305 of this title as classification
   27  1  or 2, there shall be a presumption for soil remediation to soil cate-
   28  gory 2 for residential purposes pursuant  to  section  27-1316  of  this
   29  title  where  such  remediation  is  conducted  by  a person responsible
   30  according to applicable principles of statutory or common law  liability
   31  at  a  site  that is not in active use for industrial or commercial uses
   32  and is adjacent to residential uses. This presumption may be overcome by
   33  written findings of the commissioner after an  opportunity  for  citizen
   34  participation consistent with this title.
   35    §  9. Paragraph a of subdivision 3 and subdivisions 4 and 8 of section
   36  27-1313 of the environmental conservation law, paragraph a  of  subdivi-
   37  sion  3 as amended and subdivision 8 as added by chapter 857 of the laws
   38  of 1982 and subdivision 4 as added by chapter 282 of the laws  of  1979,
   39  are amended to read as follows:
   40    a.  Whenever  the commissioner finds that hazardous wastes at an inac-
   41  tive hazardous waste disposal site constitute a  significant  threat  to
   42  the  environment,  he  may:  (i) order the owner of such site and/or any
   43  person responsible for the disposal of hazardous  wastes  at  such  site
   44  [(i)]  to  develop  an  inactive  hazardous waste disposal site remedial
   45  program, subject to the approval of the department, at  such  site,  and
   46  [(ii)] to implement such program within reasonable time limits specified
   47  in  the order; or (ii) develop and implement a remedial program for such
   48  site after a reasonable, but unsuccessful, attempt to obtain the consent
   49  of the owner and/or any person responsible to the issuance of  an  order
   50  to develop and implement such remedial program for such site.
   51    Any  remedial  program  developed and implemented pursuant to subpara-
   52  graph (i) or (ii) of this  paragraph  shall  provide  for  a  reasonable
   53  opportunity  for submission of written and oral comments regarding, at a
   54  minimum, the proposed remedial program;  and  in  accordance  with  such
   55  regulations  as it may promulgate, the department may, subject to appro-
   56  priation therefor, make grants of up to fifty thousand dollars per  site
 
       S. 6257                            41                            A. 9759
 
    1  available to a municipality which is not responsible according to appli-
    2  cable  principles  of  statutory  or  common  law liability, a community
    3  group, and/or such a municipality and a community group  in  partnership
    4  with  each  other,  and which may be affected by a release or threatened
    5  release of hazardous waste disposed at such  site  in  order  to  obtain
    6  technical assistance in interpreting existing information with regard to
    7  the  nature and extent of the contamination at the site and the develop-
    8  ment and implementation of such remedial program. To qualify to  receive
    9  such  assistance, a community group must demonstrate that its membership
   10  represents the interests of the community affected by such  site  and  a
   11  municipality  must  demonstrate  financial  need. The proposed recipient
   12  must also contribute a percentage of the total grant, to  be  determined
   13  by  the department in accordance with such regulations as it may promul-
   14  gate, which may be satisfied through money or the cash value of  donated
   15  supplies  or services. Grants awarded under this section may not be used
   16  for the purpose of collecting field sampling data.   Provided,  however,
   17  that in the event the commissioner of health shall issue an order pursu-
   18  ant  to  subdivision three of section one thousand three hundred eighty-
   19  nine-b of the public health law,  such  order  of  the  commissioner  of
   20  health shall supersede any order issued hereunder.
   21    4.  a. Any order issued pursuant to subdivision three of this section,
   22  other than one issued on consent of the person who  is  the  subject  of
   23  such  order, shall be issued only after notice and the opportunity for a
   24  hearing is provided to persons who may be the subject of such order. The
   25  commissioner shall determine which persons are responsible  pursuant  to
   26  said  subdivision  according  to  applicable  principles of statutory or
   27  common law liability. Such persons shall be entitled to raise any statu-
   28  tory or common law defense at any such hearing and such  defenses  shall
   29  have  the same force and effect at such hearings as they would have in a
   30  court of law. In the event a hearing is held, no order shall  be  issued
   31  by  the  commissioner  under  subdivision  three of this section until a
   32  final decision has been rendered. Any such  order  shall  be  reviewable
   33  pursuant  to  article  seventy-eight of the civil practice law and rules
   34  within thirty days after service of such  order.  The  commissioner  may
   35  request the participation of the attorney general in such hearings.
   36    b.  There shall be no liability under this section for a person other-
   37  wise liable who can establish by a preponderance of  the  evidence  that
   38  the  significant  threat  to  the  environment attributable to hazardous
   39  waste disposed at an inactive hazardous waste disposal site  was  caused
   40  solely by an act of God; an act of war; or an act or omission of a third
   41  party  other than an employee or agent of such person, or than one whose
   42  act or omission occurs in connection  with  a  contractual  relationship
   43  existing directly or indirectly, with such person (except where the sole
   44  contractual  arrangement  arises  from a published tariff and acceptance
   45  for carriage by a common carrier or rail), if such person establishes by
   46  a preponderance of the evidence that such person exercised due care with
   47  respect to the hazardous waste concerned, taking into consideration  the
   48  characteristics  of such hazardous waste, in light of all relevant facts
   49  and circumstances, and took  precautions  against  foreseeable  acts  or
   50  omissions  of any such third party and the consequences that could fore-
   51  seeably result from such acts or omissions; or any combination of  them.
   52  For  purposes  of  this paragraph, the term, "contractual relationship,"
   53  includes, but is not limited to, land contracts, deeds or other  instru-
   54  ments  transferring  title  or  possession,  unless the real property on
   55  which the site concerned is located was acquired by  such  person  after
   56  the  disposal  or  placement  of  the hazardous waste on, in, or at such
 
       S. 6257                            42                            A. 9759
 
    1  site, and such person establishes  one  or  more  of  the  circumstances
    2  described  in  subparagraph  (i),  (ii)  or (iii) of this paragraph by a
    3  preponderance of the evidence:
    4    (i) At the time such person acquired the site such person did not know
    5  and  has no reason to know that any hazardous waste which is the subject
    6  of the significant threat determination was disposed of on,  in,  or  at
    7  the  site.  To  establish  that  such person has no reason to know, such
    8  person must have undertaken, at the time of acquisition, all appropriate
    9  inquiry into the previous ownership and uses of the property  consistent
   10  with  good  commercial  or  customary  practice in an effort to minimize
   11  liability. For purposes of  the  preceding  sentence,  the  commissioner
   12  shall  take  into account any specialized knowledge or experience on the
   13  part of such person, the relationship of the purchase price to the value
   14  of the property if uncontaminated, commonly known or  reasonably  ascer-
   15  tainable information about the property, the obviousness of the presence
   16  or  likely presence of contamination at the property, and the ability to
   17  detect such contamination by appropriate inspection; or
   18    (ii) Such person is a government entity which  acquired  the  site  by
   19  escheat, or through any other involuntary transfer or acquisition; or
   20    (iii)  Such  person  acquired  the site by inheritance or bequest, and
   21  that such person exercised due care with respect to the hazardous  waste
   22  concerned, taking into consideration the characteristics of such hazard-
   23  ous  waste,  in  light  of all relevant facts and circumstances and took
   24  precautions against foreseeable acts or  omissions  of  any  such  third
   25  party  and the consequences that could foreseeably result from such acts
   26  or omissions.
   27    Nothing in this paragraph shall diminish the liability of any previous
   28  owner or operator of the site who would otherwise be liable  under  this
   29  section.  Notwithstanding this paragraph, if such person obtained actual
   30  knowledge of the release or threatened release of a hazardous  waste  at
   31  the  site  when  such person owned the site and then subsequently trans-
   32  ferred ownership of the site to another person without  disclosing  such
   33  knowledge,  such person shall be treated as a person responsible for the
   34  disposal of hazardous waste at the site and no defense under this  para-
   35  graph shall be available to such person. Nothing in this paragraph shall
   36  affect  the  liability under this section of a person who, by any act or
   37  omission, caused or contributed to the release or threatened release  of
   38  a  hazardous  waste  which is the subject of such proceeding relating to
   39  such site.
   40    8. Any duly designated officer or employee of the  department  or  any
   41  other  state  agency,  and  any  agent,  consultant, contractor or other
   42  person, including an employee, agent,  consultant  or  contractor  of  a
   43  responsible person acting at the direction of the department, so author-
   44  ized  in  writing  by the commissioner, may enter any inactive hazardous
   45  waste disposal site and areas near such site to implement[, pursuant  to
   46  subdivision  five of this section,] an inactive hazardous waste disposal
   47  site remedial program for such site, provided the commissioner has  sent
   48  a  written notice to the owners of record or any known [known] occupants
   49  of such site or nearby areas of the intended entry and work at least ten
   50  days prior to such initial entry.
   51    § 10. Section 27-1313 of the environmental conservation law is amended
   52  by adding four new subdivisions 10, 11, 12, and 13 to read as follows:
   53    10. a. If, after the commissioner makes the finding described in para-
   54  graph a of subdivision three of this section and after expending reason-
   55  able efforts, the department is unable to obtain a voluntary  commitment
   56  by  the  owner  of  an inactive hazardous waste disposal site and/or any
 
       S. 6257                            43                            A. 9759
 
    1  person responsible for the disposal of hazardous wastes at such site (i)
    2  to develop an inactive hazardous waste disposal site  remedial  program,
    3  subject  to the approval of the department, at such site, and/or (ii) to
    4  implement such program within reasonable time limits, the department may
    5  undertake  such development or implementation, in which case, subject to
    6  paragraphs b and c of this subdivision, there is hereby created a  right
    7  of the state to recover in any court of competent jurisdiction from such
    8  owner  and/or  any person responsible an amount equal to all costs, both
    9  direct and indirect, respecting such site  that  the  state  shall  have
   10  incurred  plus  a penalty in an amount no less than one and no more than
   11  three times all such costs, both direct and  indirect,  that  the  state
   12  shall  have  incurred  in carrying out same. The department shall not be
   13  entitled to such a penalty unless it proves by a  preponderance  of  the
   14  evidence  that  it  has expended reasonable efforts as set forth in this
   15  paragraph. For purposes of this paragraph, the department  has  expended
   16  "reasonable efforts" to obtain such a voluntary commitment if such owner
   17  and/or  person  responsible  is  informed in writing of the department's
   18  offer to negotiate a voluntary commitment and such owner  and/or  person
   19  responsible  does  not respond to the department's offer; or responds by
   20  refusing to negotiate; or starts to negotiate and thereafter  discontin-
   21  ues  same; or acts in bad faith in the negotiation process and continues
   22  not to make such commitment after receiving a final written notification
   23  from the department that apprises such owner and/or  person  responsible
   24  that  failure  to enter into the voluntary commitment will result in the
   25  state's recovery of all costs, both direct and indirect, respecting such
   26  site that the state shall have incurred plus a penalty in an  amount  up
   27  to  three  times,  but no less than one time, all costs, both direct and
   28  indirect, the state shall have incurred in carrying out same.
   29    b. Notwithstanding paragraph a of this subdivision, such owner  and/or
   30  person responsible shall only be liable to the state for an amount equal
   31  to  all  costs,  both direct and indirect, the state shall have incurred
   32  respecting such site if such owner and/or person responsible can  estab-
   33  lish  by  a  preponderance of the evidence that for good cause shown, it
   34  failed and refused to enter into  such  voluntary  commitment  with  the
   35  department.
   36    c.  Two  or  more owners and/or persons responsible described in para-
   37  graph a of subdivision three of  this  section  may  claim  contribution
   38  among  themselves in an action brought in a court of competent jurisdic-
   39  tion, and the amount of contribution to which any of  them  is  entitled
   40  shall  be  equal  to the excess paid by that person responsible over and
   41  above such person's equitable share of costs.  However,  the  amount  of
   42  contribution  to  which any of them is entitled shall be three times the
   43  excess paid by that person responsible  over  and  above  such  person's
   44  equitable  share  of  costs  associated  with  the  carrying out of such
   45  person's obligations under the voluntary commitment with the  department
   46  described  in paragraph a of this subdivision if one-third of such award
   47  shall be paid to the remedial program transfer fund under section  nine-
   48  ty-seven-yyy of the state finance law and the court finds that:
   49    (i) the contribution defendant is a person responsible for such site;
   50    (ii)  the  contribution  plaintiff  gave  thirty  days  notice  to the
   51  contribution defendant of the plaintiff's intention to seek contribution
   52  in the event that the contribution defendant declined to participate  in
   53  the implementation of the contribution plaintiff's voluntary commitment;
   54    (iii)  the  contribution  defendant  failed or refused to enter into a
   55  settlement agreement with the contribution plaintiff; and
 
       S. 6257                            44                            A. 9759
 
    1    (iv) the contribution plaintiff entered into  a  voluntary  commitment
    2  with the department to remediate the site.
    3    d.  A person misidentified by the department as an owner and/or person
    4  responsible but which entered into a voluntary commitment, other than  a
    5  voluntary agreement pursuant to title fourteen of this article, with the
    6  department  may  recover  from the remedial program transfer fund estab-
    7  lished by section ninety-seven-yyy of the state finance law the costs it
    8  shall have incurred that are reasonable in light of the action agreed to
    9  be undertaken.
   10    e. All monies collected by the state pursuant to this section shall be
   11  deposited into the remedial program transfer fund established by section
   12  ninety-seven-yyy of the state finance law.
   13    11. a. Any person subject to an order issued pursuant to this  section
   14  or  any  person  that shall have entered into a voluntary agreement with
   15  the department under title fourteen of this article may seek in a  court
   16  of  competent  jurisdiction  contribution from any other person who is a
   17  person responsible for the disposal of hazardous wastes at  an  inactive
   18  hazardous  waste  disposal  site  or  at an affected site, as defined by
   19  section 27-1401 of this article, for costs incurred  in  developing  and
   20  implementing  a  department-approved  inactive  hazardous waste disposal
   21  site remedial program or in negotiating  and  implementing  a  voluntary
   22  agreement.  Nothing  in  this  subdivision  shall be construed to limit,
   23  affect, or impair any  protections  from  or  limitations  on  liability
   24  provided by the department or otherwise.
   25    b.  If the costs of measures undertaken at an inactive hazardous waste
   26  disposal site or at an affected  site  for  the  purpose  of  addressing
   27  hazardous  waste  or petroleum are increased because of design or imple-
   28  mentation considerations or alterations made for the purpose of accommo-
   29  dating, effecting or advancing the redevelopment or reuse of such  site,
   30  the  amount  of such increase shall not be recoverable under paragraph a
   31  of this subdivision. Examples of design or implementation considerations
   32  or alterations that may  be  made  for  the  purpose  of  accommodating,
   33  effecting or advancing the redevelopment or reuse of a site include, but
   34  are  not limited to, such measures as altering the type, amount, quality
   35  or aesthetic character of materials used in construction from the  type,
   36  amount,  quality  or aesthetic character of materials required to imple-
   37  ment a remedial program or voluntary agreement at such site.
   38    c. Any other provision of this subdivision notwithstanding,  no  costs
   39  will  be  deemed  unrecoverable  under  paragraph  a of this subdivision
   40  because they were expended to achieve a higher level of  remediation  at
   41  an  inactive  hazardous  waste  disposal  site or affected site than the
   42  level required by the department.
   43    d. In any action or proceeding brought pursuant to  this  subdivision,
   44  the  defendant  shall  be  entitled to raise any statutory or common law
   45  defense that he may have.
   46    e. In resolving contribution claims brought pursuant to this  subdivi-
   47  sion, the court may allocate costs among liable parties using such equi-
   48  table factors as the court determines are appropriate.
   49    f.  No  action  for  contribution  pursuant  to  this provision may be
   50  commenced more than six years after the later of:
   51    (i) the date of judgment in any action under any law, state or  feder-
   52  al,  respecting the costs that are the subject of the claim for contrib-
   53  ution; or
   54    (ii) the date of the issuance of an order or agreement by the  depart-
   55  ment respecting the costs that are the subject of the claim for contrib-
 
       S. 6257                            45                            A. 9759
 
    1  ution  or respecting activities the conduct of which caused the expendi-
    2  ture of the costs that are the subject of the claim for contribution.
    3    g. The court shall enter a declaratory judgment on liability for costs
    4  that  will  be  binding  on  any subsequent action or actions to recover
    5  costs incurred in implementing a department-approved inactive  hazardous
    6  waste  disposal  site  remedial  program, or in implementing a voluntary
    7  agreement under title fourteen of this article.
    8    h. Nothing contained in this subdivision shall affect  any  rights  to
    9  recovery  of  costs  to  which  any party may be entitled by contract or
   10  otherwise under law.
   11    12. a. Definition. For purposes of this subdivision, the term "natural
   12  resources" means land, fish, wildlife, biota, air, water, ground  water,
   13  drinking  water supplies, and other such resources belonging to, managed
   14  by, controlled by, or pertaining to the state of New York.
   15    b. Liability. Any owner of an inactive hazardous waste disposal  site,
   16  and  any person responsible for the disposal of hazardous wastes at such
   17  site, who shall be liable according to applicable principles of statuto-
   18  ry or common law liability and subject to any statutory  or  common  law
   19  defense, shall be liable to the state of New York for damages for injury
   20  to,  destruction  of,  loss  of,  or  loss  of use of natural resources,
   21  including the reasonable costs of assessing  such  injury,  destruction,
   22  loss,  or loss of use resulting from the disposal of hazardous wastes at
   23  such inactive hazardous waste disposal site. Provided, that there  shall
   24  be  no such liability where the owner or other person responsible demon-
   25  strates that the injury to, destruction of, loss of, or loss of  use  of
   26  natural resources complained of were specifically identified as an irre-
   27  versible  and  irretrievable commitment of natural resources in an envi-
   28  ronmental impact statement, or other comparable environmental  analysis,
   29  and the decision to grant a permit or license authorizes such commitment
   30  of  natural  resources,  and the site was otherwise operating within the
   31  terms of its permit or license.
   32    c. Damages. The attorney general shall, at the request of the  commis-
   33  sioner  as trustee of such natural resources, commence a civil action to
   34  recover such damages on behalf of the people of the state of  New  York.
   35  All  damages  recovered  in  any  such  action shall be paid over to the
   36  commissioner for deposit to the credit of the remedial program  transfer
   37  fund  established  pursuant  to  section  ninety-seven-yyy  of the state
   38  finance law.   Any  assessment  of  damages  to  natural  resources  for
   39  purposes of this subdivision made by the commissioner in accordance with
   40  such  regulations  as  may  be promulgated under section 27-1315 of this
   41  title shall have the force and effect of  a  rebuttable  presumption  on
   42  behalf of the commissioner in any such action.
   43    13.  The department, by and through the commissioner, shall be author-
   44  ized to exempt a person from the requirement  to  obtain  any  state  or
   45  local permit or other authorization for any activity needed to implement
   46  an  inactive  hazardous waste disposal remedial program pursuant to this
   47  title; provided, that the activity is conducted in a manner which satis-
   48  fies all substantive technical requirements applicable to like  activity
   49  conducted pursuant to a permit.
   50    §  11.  The  environmental conservation law is amended by adding a new
   51  section 27-1314 to read as follows:
   52  § 27-1314. Covenant not to sue.
   53    1. After the successful implementation of an order  on  consent  which
   54  provides for the development and implementation of an inactive hazardous
   55  waste  disposal  site  remedial program, the person subject to the order
   56  shall submit to the department a written certification  prepared  by  an
 
       S. 6257                            46                            A. 9759
 
    1  individual  licensed  or otherwise authorized in accordance with article
    2  one hundred forty-five of the education law to practice  the  profession
    3  of  engineering  who  shall have been in charge of the implementation of
    4  such  remediation undertaken pursuant to such order substantiating that,
    5  at a minimum, such remedial activities satisfied the  remedial  require-
    6  ments for the site.
    7    2. Upon the department's receipt of such certification, the department
    8  shall  review the final engineering report and the data submitted pursu-
    9  ant to the order as well as any other relevant information regarding the
   10  site. The department shall provide the  person,  upon  its  satisfaction
   11  that  the  remedial requirements for the site have been achieved, with a
   12  covenant not to sue, binding upon the state, for any liability,  includ-
   13  ing any future liability or claim for the further remediation of hazard-
   14  ous wastes at or from the site that was the subject of such order except
   15  that a person responsible for the site's remediation as of the effective
   16  date of the consent order pursuant to applicable principles of statutory
   17  and  common  law  liability  shall  not  receive  a  release for natural
   18  resource damages. Additionally, the state nonetheless shall reserve  all
   19  of  its  rights  concerning,  and such covenant shall not extend to, any
   20  further investigation or remedial action the department deems necessary,
   21  as a result of:
   22    a. a failure to comply with the terms and conditions of the order;
   23    b. a fraudulent demonstration that the cleanup  levels  identified  in
   24  the order were reached;
   25    c.  a  release  or  threatened  release  at the site subsequent to the
   26  effective date of the order;
   27    d. a change in the site's use subsequent to the effective date of  the
   28  order  to a use requiring a lower level of residual contamination unless
   29  additional remedial activities are undertaken which shall meet the stan-
   30  dard for protection of the public health and environment that applies to
   31  remedial actions for such use under this title;
   32    e. information received, in whole or in part, after  the  department's
   33  execution of such order, which indicates that the remediation performed,
   34  or  to be performed, under such order will not be, or is not, protective
   35  of the public health or environment for such use of the site; or
   36    f. the department's determination that the remedy implemented  is  not
   37  protective of the public health or environment.
   38    3. The reservation contained in paragraph d of subdivision two of this
   39  section shall not be reserved in the event that a person remediates soil
   40  contamination to soil category 1, as that term is described in paragraph
   41  a of subdivision three of section 27-1316 of this title.
   42    4. The reservation contained in paragraph f of subdivision two of this
   43  section  shall  not  be reserved for a person who is not responsible for
   44  the remediation of the site pursuant to applicable principles of  statu-
   45  tory  or  common  law  liability, or who is liable solely as a result of
   46  ownership or operation of the affected site subsequent to  the  disposal
   47  of hazardous waste or the discharge of petroleum, in the event that such
   48  person remediates soil contamination to soil category 1, as that term is
   49  described in paragraph a of subdivision three of section 27-1316 of this
   50  title.
   51    5.  The  covenant  not  to  sue  issued pursuant to this section shall
   52  extend to the person's successors  or  assigns  through  acquisition  of
   53  title  to  the  site  to  which the covenant applies and to a person who
   54  develops or otherwise occupies the site, provided that such persons  act
   55  in  good  faith  to adhere to the requirements of such order on consent.
   56  However, such covenant does not extend, and cannot be transferred, to  a
 
       S. 6257                            47                            A. 9759
 
    1  person  who is responsible as of the date of the issuance of an order on
    2  consent for the remediation of hazardous waste at the site according  to
    3  applicable  principles  of statutory or common law liability unless that
    4  person was party to the order on which such covenant was based. A notice
    5  of the order containing such covenant shall be recorded and indexed as a
    6  declaration  of  covenant in the office of the recording officer for the
    7  county or counties where such site is located in the  manner  prescribed
    8  by  article  nine of the real property law within thirty days of signing
    9  the order if the person is an owner or within thirty days  of  acquiring
   10  title to the site if the person is a prospective purchaser.
   11    6. The provisions of this title shall not affect an action or a claim,
   12  including  a  claim for contribution, that a person who complies with an
   13  order on consent executed by such person and  the  department  providing
   14  for  the  development  and implementation of an inactive hazardous waste
   15  disposal site remedial program pursuant to this title has  or  may  have
   16  against a third party.
   17    7. Nothing in this subdivision shall be construed to affect either the
   18  liability  of any person with respect to any costs, damages, or investi-
   19  gative or remedial activities that are not included in the order; or the
   20  department's authority to maintain an action or proceeding  against  any
   21  person who is not subject to the order.
   22    8. A person who has settled its liability to the department under this
   23  subdivision  shall  not  be liable for claims for contribution regarding
   24  matters addressed in the order. Such settlement does not  discharge  any
   25  of  the  persons  responsible under law to investigate and remediate the
   26  hazardous waste unless its terms so provide, but it reduces  the  poten-
   27  tial liability of the others by the amount of the settlement.
   28    9.  Nothing  in  this  subdivision  shall  be  construed to affect the
   29  authority of the department  to  reach  settlement  with  other  persons
   30  consistent with its authority under applicable law.
   31    §  12.  Section  27-1315  of  the  environmental  conservation law, as
   32  amended by chapter 857 of the laws  of  1982,  is  amended  to  read  as
   33  follows:
   34  § 27-1315. Rules and regulations.
   35    1. The commissioner shall have the power to promulgate rules and regu-
   36  lations  necessary  and  appropriate  to  carry out the purposes of this
   37  title. Any such regulations shall include provisions which establish the
   38  procedures for a hearing pursuant to paragraph a of subdivision four  of
   39  section  27-1313  of  this  [article] title.   Any such provisions shall
   40  ensure a division of functions between the commissioner, the  staff  who
   41  present  the  case  and any hearing officers appointed. In addition, any
   42  such regulations shall set forth findings  to  be  based  on  a  factual
   43  record  which  must  be  made  before the commissioner determines that a
   44  significant threat to the  environment  exists.  Rules  and  regulations
   45  promulgated pursuant to this title shall be subject to the approval of a
   46  board which shall be known as the inactive hazardous waste disposal site
   47  regulation  review  board  which  shall have the same members, rules and
   48  procedures as the state environmental board.
   49    2. Such rules and regulations of the department as shall be in  effect
   50  on  the  effective  date  of the chapter of the laws of two thousand two
   51  which added this subdivision that shall have been promulgated  to  carry
   52  out  the purposes of this title shall be deemed to be revised, as of the
   53  effective date of the chapter of the laws  of  two  thousand  two  which
   54  added  this  subdivision, to include the definition of "hazardous waste"
   55  as it appears in section 27-1301 of this title.
 
       S. 6257                            48                            A. 9759
 
    1    § 13.  Section  27-1316  of  the  environmental  conservation  law  is
    2  REPEALED and a new section 27-1316 is added to read as follows:
    3  § 27-1316. Soil cleanup levels.
    4    1.  The  commissioner  shall establish a technical advisory panel. The
    5  membership of the panel shall be appointed by the commissioner  and  the
    6  commissioner  of health and shall include representation from the public
    7  health advocacy community, the  environmental  advocacy  community,  the
    8  business  community, municipalities, and others as deemed appropriate by
    9  the commissioner. The commissioner and the commissioner of  the  depart-
   10  ment  of  health shall be co-chairs of such panel. None of the appointed
   11  members shall be officers or employees of any state department or  agen-
   12  cy.  Each member shall have experience in risk assessment methodologies,
   13  remediation technologies, or other appropriate scientific, technical, or
   14  other relevant expertise in regard to the  remediation  of  contaminated
   15  sites. All meetings of the technical advisory panel shall be open to the
   16  public.  The  recommendations  of  the technical advisory panel shall be
   17  subject to public comment.
   18    2. The panel shall provide advice on the development  of,  and  recom-
   19  mend,  soil  clean-up levels which provide for a multi-category approach
   20  for the remediation of soil contamination, as set forth  in  subdivision
   21  three of this section, at inactive hazardous waste disposal sites, sites
   22  subject  to  a voluntary agreement under title fourteen of this article,
   23  and cleanup and removal actions under article twelve of  the  navigation
   24  law.
   25    3.  In  the development of soil cleanup levels, the technical advisory
   26  panel shall consider the following as the basis  for  the  soil  cleanup
   27  levels:  the  cancer  and  non-cancer  human  health effects; background
   28  concentrations; exposure to the same contaminant from other routes;  the
   29  strength  of the toxicological data base; sensitive populations, includ-
   30  ing children; protection of groundwater for its classified use,  surface
   31  water,   air  (including  indoor  air);  and  protection  of  ecological
   32  resources, including fish and  wildlife.  In  addition,  the  cumulative
   33  effects  of  contaminants and the possibility that some contaminants may
   34  act through similar toxicological mechanisms shall be considered.  Where
   35  toxicological,  exposure  or other pertinent data are inadequate or non-
   36  existent for a specific chemical, the  experiences  under  the  existing
   37  state  remedial programs shall be considered. The goals for the level of
   38  risk associated with soil cleanup levels for individual contaminants are
   39  an excess cancer risk of one in one million for carcinogenic end  points
   40  and  a hazard index of one for non-cancer end points for each soil cate-
   41  gory.
   42    a. Soil category 1: cleanup levels that will be protective  of  public
   43  health  and the environment that would allow the site to be used for any
   44  purpose  without  restriction  and  without  reliance  on  institutional
   45  controls or engineering controls.
   46    b.  Soil  category 2: cleanup levels that will be protective of public
   47  health and the environment for the site's current, intended, or  reason-
   48  ably  anticipated  residential,  commercial,  or industrial use and with
   49  consideration of use of institutional or engineering controls  to  reach
   50  such levels.
   51    c. Soil category 3: a process to determine cleanup levels that will be
   52  protective of public health and the environment using site specific data
   53  for  the site's current, intended or reasonably anticipated residential,
   54  commercial, or industrial use.
 
       S. 6257                            49                            A. 9759
 
    1    4. The technical advisory panel shall submit its recommendations with-
    2  in eighteen months from the date of the first meeting of such  technical
    3  advisory panel.
    4    5. After the close of the public comment period on the recommendations
    5  of  the  technical advisory panel, the commissioner and the commissioner
    6  of health, where appropriate, shall promulgate regulations setting forth
    7  the soil cleanup levels, taking into consideration such  recommendations
    8  and  any  other  information  deemed  relevant by the department and the
    9  department of health.
   10    6. The department shall determine cleanup levels for  contaminants  in
   11  the  soil  using  site  specific data until the commissioner promulgates
   12  rules and regulations pursuant to this section and thereafter shall  use
   13  the  soil cleanup levels set forth in such rules and regulations, as may
   14  be amended.
   15    § 14. Article 27 of the environmental conservation law is  amended  by
   16  adding a new title 14 to read as follows:
   17                                  TITLE 14
   18                            VOLUNTARY CLEANUP ACT
   19  Section 27-1400. Declaration of policy and findings of fact.
   20          27-1401. Definitions.
   21          27-1403. Request for participation.
   22          27-1405. Determination of eligibility.
   23          27-1407. Voluntary agreement and work plan requirements.
   24          27-1409. Citizen participation/public notification.
   25          27-1411. Covenant not to sue.
   26          27-1413. Remediation certificate.
   27          27-1415. Payment of state costs.
   28          27-1417. Change of use.
   29          27-1419. Immunity.
   30          27-1421. Permit waivers.
   31          27-1423. Access to sites.
   32  § 27-1400. Declaration of policy and findings of fact.
   33    The  legislature hereby declares and finds that, to advance the policy
   34  of the state of New York to conserve, improve and  protect  its  natural
   35  resources  and  environment and control water, land and air pollution in
   36  order to enhance the health, safety and welfare of  the  people  of  the
   37  state  and their overall economic and social well being, it is appropri-
   38  ate to enact this Voluntary Cleanup Act  to  accomplish  remediation  of
   39  affected  sites  by affected persons without official compulsion; and it
   40  is the intent of the legislature that the provisions of  this  Voluntary
   41  Cleanup  Act  shall  not be construed as limiting or otherwise affecting
   42  any authority conferred upon the department by any  other  provision  of
   43  law.  The  remedial  goal  of the voluntary cleanup program shall be the
   44  protection of public health and the environment, with the minimum objec-
   45  tive being to eliminate or mitigate all significant  threats  to  public
   46  health  and  the  environment  presented  by  the hazardous waste and/or
   47  petroleum through proper application of scientific and engineering prin-
   48  ciples.
   49  § 27-1401. Definitions.
   50    1. "Affected person" means a person whose request  to  participate  in
   51  the  voluntary cleanup program under this title has been accepted by the
   52  department for consideration.
   53    2. "Affected site" means an area or structure  where  hazardous  waste
   54  and/or  petroleum  has been deposited, disposed of, placed, or otherwise
   55  come to be located that is not a site on the  National  Priorities  List
   56  established  under  authority of 42 U.S.C.A., nor subject to enforcement
 
       S. 6257                            50                            A. 9759
 
    1  action, nor subject to a permit issued pursuant to titles seven or  nine
    2  of this article.
    3    3.  "Hazardous  waste"  means  hazardous  waste  as defined in section
    4  27-1301 of this article.
    5    4. "Interim remedial measure"  means  "remediation"  consisting  of  a
    6  discrete  set  of activities to address both emergency and non-emergency
    7  site conditions which can be undertaken without extensive  investigation
    8  and evaluation.
    9    5.  "Investigation"  means  all  those  activities to characterize the
   10  nature and extent of a release or threatened release of hazardous  waste
   11  and/or petroleum into the environment.
   12    6.  "Person"  means  an  individual, trust, firm, joint stock company,
   13  corporation, partnership, association, state, municipality,  commission,
   14  political  subdivision  of  a  state,  public benefit corporation or any
   15  interstate body.
   16    7. "Petroleum" means petroleum  as  defined  in  section  one  hundred
   17  seventy-two of the navigation law, even if appearing on the list promul-
   18  gated pursuant to section 37-0103 of this chapter.
   19    8.  "Preliminary  environmental  assessment"  means  a  written report
   20  submitted as part of a request to participate in the  voluntary  cleanup
   21  program  within  the department under this title which shall contain the
   22  information described in subdivision two  of  section  27-1403  of  this
   23  title.
   24    9. "Remediation" means the activities undertaken, except for "investi-
   25  gation"  activities,  to  eliminate,  remove,  abate, control or monitor
   26  health and/or environmental hazards or potential hazards  in  connection
   27  with an affected site or to treat or dispose of wastes and waste contam-
   28  inated  materials  from the site, including but not limited to, grading,
   29  contouring,  trenching,  grouting,  capping,  excavation,  transporting,
   30  incineration,  chemical  treatment, biological treatment or construction
   31  of leachate collection and treatment facilities.
   32    10. "State costs" means all those costs, obligations, commitments,  or
   33  undertakings  associated  with the administration or oversight responsi-
   34  bilities of the department, the department of health, or any other state
   35  agency attributable to carrying out the investigation and/or remediation
   36  of an affected site under a voluntary agreement, as  described  in  this
   37  title.  Such  expenses  shall include administrative expenses (wages and
   38  salaries), fringe benefits, overhead, supplies and materials, equipment,
   39  travel and utilities.
   40    11. "Voluntary agreement" means an agreement  executed  in  accordance
   41  with  this  title  by  an  affected person and the department concerning
   42  actual, threatened, or suspected hazardous waste and/or petroleum  pres-
   43  ent at or migrating from an affected site.
   44  § 27-1403. Request for participation.
   45    1.  A  person  who  desires  to  participate  in the voluntary cleanup
   46  program under this title concerning a  particular  affected  site  shall
   47  submit a request to the department.
   48    2.  Such  request  shall  be  on a form provided by the department and
   49  shall contain  general  information  concerning  such  person  and  such
   50  person's  relation  to  the affected site, a description of the affected
   51  site, and a copy of a preliminary  environmental  assessment  concerning
   52  such affected site that shall include, but not be limited to:
   53    a.  a  review  of  any  relevant prior environmental studies, property
   54  assessments, or geological studies of such affected site;
   55    b. a legal description of such affected site;
   56    c. the physical characteristics of such affected site;
 
       S. 6257                            51                            A. 9759
 
    1    d. the compliance history of any operations at such affected  site  to
    2  the extent the history is known by such person;
    3    e.  a  review of any existing aerial photographs of such affected site
    4  that may indicate its prior uses;
    5    f. if possible, interviews with any employee who may have knowledge of
    6  environmental conditions at such affected site;
    7    g. an inspection of such affected site  sufficient  to  evaluate  site
    8  conditions and remedial needs;
    9    h.  an  identification  of the past, current, intended, and reasonably
   10  anticipated future uses of such affected site; and
   11    i. any other relevant information concerning the potential  for  human
   12  and environmental exposures to contamination at such affected site.
   13    3. The department shall determine whether such affected site should be
   14  included  in  the registry of inactive hazardous waste disposal sites as
   15  required by section 27-1305 of this article. If  the  department  deter-
   16  mines  that such affected site is eligible for inclusion in the registry
   17  as a classification 1 or 2 site, and if the affected person  commits  to
   18  enter  into  a voluntary agreement pursuant to this title which requires
   19  the elimination or mitigation of all significant threats to  the  public
   20  health  and  environment  posed  by  the hazardous waste, the department
   21  shall defer including the  affected  site  in  the  registry  and  shall
   22  continue  to  defer  such  site  for  so  long as the affected person is
   23  engaged in good faith negotiations to enter into such an agreement  and,
   24  following  its  execution, is in compliance with the terms of the volun-
   25  tary agreement.
   26  § 27-1405. Determination of eligibility.
   27    1. The department shall use its best  efforts  to  notify  the  person
   28  requesting  participation  in the voluntary cleanup program within sixty
   29  days after receiving such request pursuant to section  27-1403  of  this
   30  title that such request is either accepted or rejected.
   31    2. The department shall reject such request if:
   32    a. the request is submitted by the owner and/or any person responsible
   33  for  the  disposal of hazardous waste according to applicable principles
   34  of statutory or common law liability at an affected site which is listed
   35  in the registry of inactive hazardous waste disposal sites under section
   36  27-1305 of this article and  given  a  classification  as  described  in
   37  subparagraph  one  or  two  of  paragraph  b of subdivision four of such
   38  section;
   39    b. the request does not contain the information required  pursuant  to
   40  subdivision two of section 27-1403 of this title in sufficient detail to
   41  assess the conditions of the affected site;
   42    c.  the  department  determines  that there is an action or proceeding
   43  against the person who is  requesting  participation  in  the  voluntary
   44  cleanup  program  that  is pending in any civil or criminal court in any
   45  jurisdiction, or before any state or federal  administrative  agency  or
   46  body,  wherein  the state or federal government seeks the investigation,
   47  removal or remediation of hazardous waste and/or petroleum, or penalties
   48  for the disposal of hazardous waste and/or petroleum; or
   49    d. the department, based on the preliminary  environmental  assessment
   50  and/or  other  information the department possesses, determines that the
   51  request is for a site which does not meet the  definition  of  "affected
   52  site" pursuant to section 27-1401 of this title.
   53    3.  The  department  may  reject such request for participation if the
   54  department determines that the public interest would not  be  served  by
   55  granting such request.
 
       S. 6257                            52                            A. 9759
 
    1    4.  If such request is rejected pursuant to paragraph b of subdivision
    2  two of this section, the department shall provide to the  person  making
    3  such  request, in writing, a list of the additional information required
    4  for the department to determine eligibility under this title.
    5  § 27-1407. Voluntary agreement and work plan requirements.
    6    1.  a.  The  voluntary agreement shall include, but not be limited to,
    7  the following provisions:
    8    (i) one  requiring  such  affected  person  to  pay  for  state  costs
    9  provided,  however,  that  with  respect  to  an affected site which the
   10  department has determined constitutes a significant threat to the public
   11  health or environment, the department may include a provision  requiring
   12  the  affected  person  to  provide  a  technical  assistance  grant,  as
   13  described in subdivision three of section 27-1313 of  this  article  and
   14  under  the conditions described therein, to an eligible party in accord-
   15  ance with procedures established under such program, with  the  cost  of
   16  such a grant serving as an offset against such state costs;
   17    (ii) one resolving disputes arising from the evaluation, analysis, and
   18  oversight  of  the implementation of the work plan as described in para-
   19  graph b of this subdivision;
   20    (iii) one requiring an indemnification provision which holds the state
   21  harmless from any claim, suit,  action,  and  cost  of  every  name  and
   22  description  arising  out  of  or  resulting  from  the  fulfillment  or
   23  attempted fulfillment  of  the  voluntary  agreement  except  for  those
   24  claims,  suits, actions, and costs arising from the state's gross negli-
   25  gence or willful or intentional misconduct;
   26    (iv) one authorizing the department to terminate a voluntary agreement
   27  at any time during the implementation of such agreement if the  affected
   28  person  implementing  such  agreement fails to comply substantially with
   29  such agreement's terms and conditions;
   30    (v) one exempting such affected person from the requirement to  obtain
   31  any state or local permit or other authorization for any activity satis-
   32  fying the following criteria:
   33    (1)  the  activity  is  conducted on the affected site or on different
   34  premises that are under common control or are  contiguous  to  or  phys-
   35  ically  connected with the affected site and the activity manages exclu-
   36  sively hazardous waste and/or petroleum from such affected site,
   37    (2) the activity  satisfies  all  substantive  technical  requirements
   38  applicable to like activity conducted pursuant to a permit as determined
   39  by the department, and
   40    (3) the activity is conducted under such voluntary agreement;
   41    (vi)  one stating that the department shall not consider such affected
   42  person an operator of such affected site based solely upon execution  or
   43  implementation  of  such voluntary agreement for purposes of remediation
   44  liability;
   45    (vii) a requirement that the  affected  person  conduct  investigation
   46  and/or  remediation  activities pursuant to one or more work plans which
   47  are approved by the department; and
   48    (viii) the inclusion of other conditions considered necessary  by  the
   49  department concerning the effective and efficient implementation of this
   50  title, and, where the affected person is responsible for the disposal of
   51  hazardous  waste  or  the discharge of petroleum according to applicable
   52  principles of statutory or common law liability, unless  such  liability
   53  arises  solely  from  ownership or operation of the affected site subse-
   54  quent to the disposal of hazardous waste or the discharge of  petroleum,
   55  the  department  shall  include provisions relating to recovery of state
   56  costs incurred before the effective date of such voluntary agreement.
 
       S. 6257                            53                            A. 9759
 
    1    b. A work plan shall include, but not be  limited  to,  the  following
    2  requirements:
    3    (i)  a  work  plan  for  the  investigation of the affected site shall
    4  provide for the investigation and characterization  of  the  nature  and
    5  extent  of the contamination within the boundaries of the affected site,
    6  provided, however, that an affected person that is responsible  for  the
    7  disposal of hazardous waste or the discharge of petroleum under applica-
    8  ble principles of statutory or common law liability, unless such liabil-
    9  ity  arises  solely  from  ownership  or  operation of the affected site
   10  subsequent to the disposal of hazardous waste or the discharge of petro-
   11  leum, shall also be required to investigate and characterize the  nature
   12  and  extent  of  contamination  emanating  from  such  affected site. An
   13  affected person not responsible for the disposal of hazardous  waste  or
   14  the  discharge  of petroleum under applicable principles of statutory or
   15  common law liability, or a person that is liable solely as a  result  of
   16  ownership  or  operation of the affected site subsequent to the disposal
   17  of hazardous waste or the discharge of petroleum, must perform an  expo-
   18  sure  assessment  consisting of an evaluation of the pathways by which a
   19  receptor could be exposed to such contamination, in order  to  determine
   20  the  risk  to  public  health and the environment from any contamination
   21  emanating from such affected site.  The work plan shall require that the
   22  affected person cause a final report to be prepared and submitted to the
   23  department that identifies the investigation activities completed pursu-
   24  ant to the work plan. Such final report, at a minimum, shall:
   25    A. fully characterize the nature and extent of  contamination  at  the
   26  affected  site  and,  if  the  affected person is required to conduct an
   27  off-site investigation pursuant to this title, the nature and extent  of
   28  contamination that has migrated from the affected site;
   29    B.  state  whether  the  completed investigation has demonstrated that
   30  conditions at the affected site (i) require remediation in order to meet
   31  the remedial goal of the voluntary cleanup  program  or  (ii)  meet  the
   32  remedial  goal  of  the  voluntary cleanup program without necessity for
   33  remediation; and
   34    C. if the final report certifies that no remediation  is  required  to
   35  meet  the remedial goal of the voluntary cleanup program, then the final
   36  report shall also demonstrate the same  requirements  as  set  forth  in
   37  subdivision two of this section.
   38    (ii)  a work plan for the remediation of the affected site, other than
   39  a work plan for an interim  remedial  measure,  shall  provide  for  the
   40  development  and  implementation  of a remedial program for such contam-
   41  ination within the boundaries of such affected site,  provided  however,
   42  that  an affected person that is responsible for the disposal of hazard-
   43  ous waste or the discharge of petroleum under applicable  principles  of
   44  statutory  or  common  law  liability,  except  an affected person whose
   45  liability arises solely from ownership or operation of the affected site
   46  subsequent to the disposal of hazardous waste or the discharge of petro-
   47  leum, shall also be required to provide in such work plan for the devel-
   48  opment and  implementation  of  a  remedial  program  for  contamination
   49  related  to  the affected site but located outside the boundaries of the
   50  affected site. The remedial goal of any such remedial program  shall  be
   51  the  protection  of  public health and the environment, with the minimum
   52  objective being to eliminate or  mitigate  all  significant  threats  to
   53  public  health  and  the  environment  presented  by the hazardous waste
   54  and/or petroleum through proper application of scientific and  engineer-
   55  ing  principles  and  such  remedial  program  must be selected upon due
   56  consideration of the evaluation factors set  forth  in  paragraph  b  of
 
       S. 6257                            54                            A. 9759
 
    1  subdivision  one of section 27-1313 of this article. Such work plan must
    2  contain an analysis that such proposed remedy was  assessed  using  such
    3  evaluation  factors.  Such  work plan must provide that the soil cleanup
    4  levels be consistent with the soil cleanup levels set forth in rules and
    5  regulations,  as  amended,  promulgated  pursuant to section 27-1315 and
    6  subdivision five of section 27-1316 of this article;  until  such  regu-
    7  lations  are  promulgated, the department shall determine cleanup levels
    8  for contaminants in soil using site specific data.  The  department  may
    9  approve  a  work  plan that includes institutional controls and/or engi-
   10  neering controls as components of an interim remedial measure or a reme-
   11  dial program but only if the work plan requires the owner of  such  real
   12  property to annually submit to the department a written statement certi-
   13  fying under penalty of perjury that the institutional controls and engi-
   14  neering  controls employed to remediate such contamination are unchanged
   15  from the previous certification and that nothing has occurred that would
   16  constitute a violation of any such controls, and gives  access  to  such
   17  real  property  reasonable under the circumstances to evaluate continued
   18  maintenance of such controls. The department shall establish  and  main-
   19  tain  a  database  with  relevant information on such controls and shall
   20  make such information available for public inspection at the  office  of
   21  the  county  clerk  or register for each county and at the office of the
   22  town clerk for each town in Suffolk and Nassau counties;
   23    (iii) a work plan for remediation  pursuant  to  an  interim  remedial
   24  measure  shall contain such provisions as the department deems appropri-
   25  ate. The work plan shall require that the affected person cause a  final
   26  report  to  be  prepared and submitted to the department that identifies
   27  the activities completed pursuant to such work plan; and
   28    (iv) at any time during the evaluation of a proposed  work  plan,  the
   29  department  may  request  that  an  affected person submit additional or
   30  corrected information to the department. An affected person shall either
   31  comply with the request or withdraw such proposed work plan from consid-
   32  eration.
   33    2. For a work plan requiring remediation, the  affected  person  shall
   34  cause a final report to be prepared and submitted to the department that
   35  identifies  the  remediation  activities completed pursuant to such work
   36  plan. A final report for a work plan requiring remediation,  other  than
   37  an interim remedial measure, shall, at a minimum, demonstrate, as appro-
   38  priate, that:
   39    a.  there  is  no contamination by hazardous waste or petroleum of the
   40  soil, sediment, surface water, or  groundwater  on  or  underlying  such
   41  affected  site  or, if required by this title, such areas off-site which
   42  are or have been impacted by  on-site  contamination  in  concentrations
   43  exceeding  the  requirements for remediation set forth in such work plan
   44  for remediation of such affected site;
   45    b. the data submitted to the department demonstrates that the applica-
   46  ble remediation requirements set forth in the work  plan  have  been  or
   47  will  be achieved in accordance with the timeframes, if any, established
   48  in such work plan;
   49    c. the use restrictions, if any are required by the  voluntary  agree-
   50  ment, have been recorded and indexed as a declaration of restrictions in
   51  the  office  of  the  recording officer for the county or counties where
   52  such affected site is located in the manner prescribed by  article  nine
   53  of  the real property law. Such declaration of restriction shall contain
   54  the name of the record owner of such affected site along  with  tax  map
   55  parcel  number  or  the  section, block, and lot number of such affected
   56  site; or
 
       S. 6257                            55                            A. 9759
 
    1    d. the department has approved  a  plan  submitted  by  such  affected
    2  person for the proper operation, maintenance and monitoring of engineer-
    3  ing  controls, if any are required by such work plan, used to contain or
    4  control the contamination at or from such affected site.
    5    3. In the event that the affected person is not required by this title
    6  to  conduct an investigation or perform remediation outside the property
    7  boundaries of the affected site, then the department shall  require  the
    8  person  responsible  according  to applicable principles of statutory or
    9  common law liability, other than such affected person,  to  conduct  the
   10  off-site  investigation and remediation if hazardous waste and/or petro-
   11  leum that have migrated from the affected site pose a significant threat
   12  to public health or the environment.  If such responsible  person  fails
   13  to  undertake or undertakes and fails to complete such off-site investi-
   14  gation and/or remediation, the state is authorized to  use  moneys  from
   15  the remedial program transfer fund established pursuant to section nine-
   16  ty-seven-yyy  of  the  state  finance law to undertake the investigation
   17  and/or remediation of such contamination.   The state's  costs  incurred
   18  relative  to  such  off-site contamination shall be recoverable from the
   19  person or persons responsible.
   20    4.  The commissioner shall use best  efforts  to  approve,  modify  or
   21  reject  a  proposed  work  plan  within  sixty  days  from  its receipt,
   22  provided, however, that the  commissioner  shall  use  best  efforts  to
   23  approve,  modify  or  reject a proposed work plan for remediation, other
   24  than a work plan for an interim  remedial  measure,  within  sixty  days
   25  after  the  end of the comment period or the close of the public meeting
   26  provided by section 27-1409 of this title, whichever is later, and after
   27  evaluating any comments received.
   28    a. If the commissioner rejects a proposed work plan, the  commissioner
   29  shall  notify  the affected person and specify the reasons for rejecting
   30  same.
   31    b. If the commissioner approves or modifies such proposed  work  plan,
   32  the  commissioner shall notify the affected person, in writing, that the
   33  proposed work plan has been approved or modified.  If  the  commissioner
   34  requires  a  modification,  the affected person may agree to modify such
   35  proposed work plan or withdraw it from consideration.
   36    5.  The affected person shall execute a voluntary agreement that shall
   37  contain the matters set forth in this title. The affected  person  shall
   38  carry out the terms of the voluntary agreement.
   39    6.  Nothing  herein shall prohibit or limit the department from termi-
   40  nating a voluntary agreement at any time during  its  implementation  if
   41  the  affected person subject to such voluntary agreement fails to comply
   42  substantially with such agreement's terms and conditions.
   43    7. Nothing herein shall require the department to enter into a  volun-
   44  tary agreement with any person.
   45  § 27-1409. Citizen participation/public notification.
   46    1.  The  department shall place a notification of receipt of a request
   47  to participate in the voluntary cleanup program pursuant to  this  title
   48  in the environmental notice bulletin.
   49    2.  Upon  the  department's  finalization  of a work plan for investi-
   50  gation, the department must notify individuals, groups and/or  organiza-
   51  tions  that  have expressed interest in or are affected by the work plan
   52  of such work plan, and must publish a notice in the environmental notice
   53  bulletin. Further, upon the satisfactory completion of the investigation
   54  performed under such voluntary agreement,  the  department  must  notify
   55  individuals, groups and/or organizations that have expressed interest in
 
       S. 6257                            56                            A. 9759
 
    1  or  are  affected by the voluntary agreement and publish a notice in the
    2  environmental notice bulletin regarding such satisfactory completion.
    3    3.  Before  the  department finalizes a proposed work plan for remedi-
    4  ation, other than a work plan  for  an  interim  remedial  measure,  the
    5  department  must  notify individuals, groups and organizations that have
    6  expressed interest in or are affected by the proposed work plan  of  the
    7  proposed  work  plan  for  remediation  and  publish a notice requesting
    8  comments concerning the proposed work plan in the  environmental  notice
    9  bulletin.  Such notice shall provide for a forty-five day public comment
   10  period following publication of the notice required under this  section.
   11  The  department shall hold a public meeting on the proposed work plan if
   12  the commissioner has found that the affected site constitutes a  signif-
   13  icant threat to the public health or environment.
   14  § 27-1411. Covenant not to sue.
   15    1.  After the affected person has successfully completed the implemen-
   16  tation  of  a  work plan and where such affected person can certify that
   17  the remedial goal of the voluntary cleanup program, both on the affected
   18  site and, if required by this title, such areas off-site  which  are  or
   19  have  been impacted by on-site contamination, has been achieved and that
   20  the requirements of such work plan as well as the relevant provisions of
   21  paragraph b of subdivision two of section 27-1407  of  this  title  have
   22  been  satisfied,  such  affected person shall submit to the department a
   23  written certification prepared by an individual  licensed  or  otherwise
   24  authorized  in  accordance  with  article  one hundred forty-five of the
   25  education law to practice the profession of  engineering  substantiating
   26  that  the affected site meets the remedial goal of the voluntary cleanup
   27  program as set forth in this title and that  the  requirements  of  such
   28  work  plan as well as the relevant provisions of paragraph b of subdivi-
   29  sion two of section 27-1407 of this title have been satisfied.
   30    2. Upon the department's receipt of such certification, the department
   31  shall review the final report, the certification and the data  submitted
   32  pursuant to the voluntary agreement as well as any other relevant infor-
   33  mation  regarding  the  affected  site. The department shall provide the
   34  affected person, upon its satisfaction that the  remedial  goal  of  the
   35  voluntary  cleanup program and the requirements of the work plan as well
   36  as the relevant provisions of paragraph b of subdivision two of  section
   37  27-1407  of this title for the affected site and, if required under this
   38  title, such areas off-site which are or have been  impacted  by  on-site
   39  contamination  have  been  achieved, with a covenant not to sue, binding
   40  upon the state, for any liability, including  any  future  liability  or
   41  claim for the further remediation of hazardous waste and/or petroleum at
   42  or  from the affected site that was the subject of such voluntary agree-
   43  ment except that a person responsible for the  affected  site's  remedi-
   44  ation  pursuant  to  applicable  principles  of statutory and common law
   45  liability, unless such liability arises solely from ownership or  opera-
   46  tion  of the affected site subsequent to the disposal of hazardous waste
   47  or the discharge of petroleum, shall not receive a release  for  natural
   48  resource  damages. Additionally, the state nonetheless shall reserve all
   49  of its rights concerning, and such covenant shall  not  extend  to,  any
   50  further investigation and/or remediation the department deems necessary,
   51  as a result of:
   52    a.  a failure to comply with the terms and conditions of the voluntary
   53  agreement;
   54    b. a fraudulent  demonstration  that  the  cleanup  levels  identified
   55  pursuant to the voluntary agreement were reached;
 
       S. 6257                            57                            A. 9759
 
    1    c.  a release or threatened release at the affected site subsequent to
    2  the effective date of the voluntary agreement;
    3    d.  a  change  in  the affected site's use subsequent to the effective
    4  date of the voluntary agreement to a use  requiring  a  lower  level  of
    5  residual contamination unless additional remediation is undertaken which
    6  shall meet the standard for protection of the public health and environ-
    7  ment that applies under this title;
    8    e.  information  received, in whole or in part, after the department's
    9  execution of such voluntary agreement, which indicates that  the  activ-
   10  ities performed, or to be performed, under such voluntary agreement will
   11  not  be,  or are not, protective of the public health or environment for
   12  such use of the affected site; or
   13    f. the department determines  that  environmental  conditions  at  the
   14  affected site are not protective of the public health or environment.
   15    3. The reservation contained in paragraph d of subdivision two of this
   16  section  shall  not  be  reserved  in  the  event that the level of soil
   17  contamination at the affected site is less than that set forth  in  soil
   18  category  1,  as  that  term  is described in paragraph a of subdivision
   19  three of section 27-1316 of this article.
   20    4. The reservation contained in paragraph f of subdivision two of this
   21  section shall not be reserved for an affected person who is not  respon-
   22  sible  for  the  remediation of the affected site pursuant to applicable
   23  principles of statutory or common law liability, or who is liable solely
   24  as a result of ownership or operation of the affected site subsequent to
   25  the disposal of hazardous waste or the discharge of  petroleum,  in  the
   26  event  that  such  affected person remediates soil contamination to soil
   27  category 1, as that term is described  in  paragraph  a  of  subdivision
   28  three of section 27-1316 of this article.
   29    5.  The  covenant  not  to  sue  issued pursuant to this section shall
   30  extend to the affected person's successors or assigns  through  acquisi-
   31  tion  of title to the affected site to which the covenant applies and to
   32  a person who develops or otherwise occupies the affected site,  provided
   33  that  such  persons  act  in good faith to adhere to the requirements of
   34  such voluntary agreement.  However, such covenant does not  extend,  and
   35  cannot  be  transferred, to a person who is responsible for the disposal
   36  of hazardous waste or the discharge of petroleum according to applicable
   37  principles of statutory or common law liability as of the effective date
   38  of the voluntary agreement unless that person was party to the voluntary
   39  agreement on which such covenant was based. A notice  of  the  voluntary
   40  agreement  containing  such  covenant shall be recorded and indexed as a
   41  declaration of covenant in the office of the recording officer  for  the
   42  county  or  counties  where  such affected site is located in the manner
   43  prescribed by article nine of the real property law within  thirty  days
   44  of signing the voluntary agreement if the affected person is an owner or
   45  within  thirty  days  of  acquiring  title  to  the affected site if the
   46  affected person is a prospective purchaser.
   47    6. The provisions of this title shall not affect an action or a claim,
   48  including a claim for contribution, that an affected person  who  imple-
   49  ments  or  completes  a  voluntary  agreement  executed by such affected
   50  person and the department pursuant to this title has or may have against
   51  a third party.
   52    7. Nothing in this section shall be construed  to  affect  either  the
   53  liability  of any person with respect to any costs, damages, or investi-
   54  gative or remedial activities that are not  included  in  the  voluntary
   55  agreement;  or  the  department's  authority  to  maintain  an action or
 
       S. 6257                            58                            A. 9759
 
    1  proceeding against any person who is not subject to the voluntary agree-
    2  ment.
    3    8.  An affected person who has settled its liability to the department
    4  under this section shall not  be  liable  for  claims  for  contribution
    5  regarding matters addressed in the voluntary agreement.  Such settlement
    6  does  not discharge any of the persons responsible under law to investi-
    7  gate and remediate the hazardous waste unless its terms so provide,  but
    8  it  reduces  the  potential liability of the others by the amount of the
    9  settlement.
   10    9. Nothing in this section shall be construed to affect the  authority
   11  of the department to reach settlement with other persons consistent with
   12  its authority under applicable law.
   13    10.  An  affected person who implements a voluntary agreement executed
   14  by such affected person and the department pursuant to this title  shall
   15  not  be  held  liable  for  claims  for  contribution concerning matters
   16  addressed in such voluntary agreement.
   17  § 27-1413. Remediation certificate.
   18    1.  Upon the department's determination pursuant to subdivision two of
   19  section 27-1411 of this title that the remedial goal  of  the  voluntary
   20  cleanup  program  as well as the requirements of the work plan and rele-
   21  vant requirements set forth in paragraph b of subdivision two of section
   22  27-1407 of this title for the affected site and, if required under  this
   23  title,  such  areas  off-site which are or have been impacted by on-site
   24  contamination have been achieved, the affected person may apply  to  the
   25  commissioner  for  a  remediation  certificate  that  certifies that the
   26  requirements under this title for the affected site have  been  achieved
   27  which  would  warrant the allowance of a credit under section twenty-one
   28  of the tax law.
   29    2. Such application shall be on a form  provided  by  the  department,
   30  shall  be  certified under penalty of perjury, and shall include but not
   31  be limited to, a statement from a certified public accountant  detailing
   32  the  site  preparation costs, as that term is defined in section twenty-
   33  one of the tax law, required to be paid or incurred in order to  qualify
   34  for a remediation certificate.
   35    3.  The  commissioner  shall  issue  a remediation certificate if such
   36  affected person is either (i) not a person responsible for  the  remedi-
   37  ation  of  hazardous waste or the discharge of petroleum at the affected
   38  site according to applicable  principles  of  statutory  or  common  law
   39  liability, or (ii) a person responsible for the remediation of hazardous
   40  waste  or  the  discharge of petroleum at the affected site according to
   41  applicable principles of statutory  or  common  law  liability  if  such
   42  person's  liability  arises  solely  from  ownership or operation of the
   43  affected site subsequent to the  disposal  of  hazardous  waste  or  the
   44  discharge of petroleum.
   45    4. Such remediation certificate shall state:
   46    a.  that  the affected person is eligible pursuant to paragraph (i) or
   47  (ii) of subdivision three of this section for  a  credit  under  section
   48  twenty-one of the tax law;
   49    b.  that  the  affected person has satisfactorily completed the activ-
   50  ities required by the voluntary agreement and this title.   Further,  in
   51  the  event  that cleanup of the soil to soil category 2 or soil category
   52  3, as those terms are described in paragraph a of subdivision  three  of
   53  section 27-1316 of this article would be protective of public health and
   54  the  environment  in accordance with subparagraph (ii) of paragraph b of
   55  subdivision one of section 27-1407  of  this  title,  and  the  affected
   56  person  remediated the soil to soil category 1 as that term is described
 
       S. 6257                            59                            A. 9759
 
    1  in paragraph a of subdivision three of section 27-1316 of this  article,
    2  the  remediation  certificate shall indicate that the affected person is
    3  eligible to receive an additional two percent credit pursuant  to  para-
    4  graph four of subdivision (a) of section twenty-one of the tax law; and
    5    c.  the  department's  determination  regarding  the  amount  that the
    6  affected person has expended for site preparation costs, as that term is
    7  defined in section twenty-one of the tax law, required  to  be  paid  or
    8  incurred in order to qualify for a remediation certificate.
    9    5.  If  the affected person has leased the property and such lessee is
   10  (i) not a person responsible for the remediation of hazardous  waste  or
   11  the  discharge of petroleum at the affected site according to applicable
   12  principles of statutory or  common  law  liability,  or  (ii)  a  person
   13  responsible  for  the remediation of hazardous waste or the discharge of
   14  petroleum at the affected site according  to  applicable  principles  of
   15  statutory  or  common  law  liability  if such person's liability arises
   16  solely from ownership or operation of the affected  site  subsequent  to
   17  the disposal of hazardous waste or the discharge of petroleum, the reme-
   18  diation  certificate  shall also include a statement indicating that the
   19  lessee is a person as set forth in this subdivision.
   20    6. A remediation certificate issued pursuant to subdivision  three  of
   21  this section may be modified or revoked by the commissioner upon a find-
   22  ing that:
   23    a.  the affected person has failed to comply with the terms and condi-
   24  tions of the voluntary agreement;
   25    b. the affected person  fraudulently  demonstrated  that  the  cleanup
   26  levels identified in the voluntary agreement were reached; or
   27    c. there is good cause for such modification or revocation.
   28    7. Upon the commissioner's determination pursuant to subdivision three
   29  or  six  of  this  section,  the commissioner shall provide the affected
   30  person with notice of such determination and  notice  of  the  right  to
   31  appeal  such  determination.  The  commissioner's determination shall be
   32  final unless a hearing is requested by certified mail to the commission-
   33  er within thirty days after  receiving  notice  of  such  determination.
   34  After  such hearing the commissioner shall give notice of final determi-
   35  nation to such affected person. The commissioner  may  promulgate  regu-
   36  lations  to  effectuate  the purposes of this section.  The commissioner
   37  shall promptly notify the commissioner of taxation and finance when such
   38  a determination pursuant to such subdivision six  of  this  section  has
   39  become final and is no longer subject to judicial appeal.
   40  § 27-1415. Payment of state costs.
   41    1.  Pursuant  to  timetables contained in the voluntary agreement, the
   42  affected person shall pay all state costs incurred  in  negotiating  and
   43  overseeing  implementation  of  such  agreement.  In  addition,  if such
   44  affected person is responsible for the disposal of  hazardous  waste  or
   45  the  discharge of petroleum according to applicable principles of statu-
   46  tory or common law liability, unless such liability arises  solely  from
   47  ownership  or  operation of the affected site subsequent to the disposal
   48  of hazardous waste or the discharge of petroleum, such  affected  person
   49  shall  pay  all  costs incurred by the state up to the effective date of
   50  such voluntary agreement.
   51    2. Payment of such state costs identified in subdivision one  of  this
   52  section  shall be made to the remedial program transfer fund established
   53  pursuant to section ninety-seven-yyy of the state finance law.
   54    3. In the event that either the  affected  person  or  the  department
   55  withdraw  from a voluntary agreement before such agreement's completion,
   56  or upon completion of the activities undertaken pursuant to  the  volun-
 
       S. 6257                            60                            A. 9759
 
    1  tary  agreement,  all  unexpended moneys which the affected person shall
    2  have paid into such account shall be reimbursed to the  affected  person
    3  after  a  final  accounting  of  all  claims upon such affected person's
    4  payments.
    5  § 27-1417. Change of use.
    6    1.  At  least  sixty  days  before the start of physical alteration or
    7  construction constituting a change of use at an affected site  which  is
    8  the  subject of a covenant not to sue issued pursuant to section 27-1411
    9  of this title, or at least sixty days before a change of  use  involving
   10  any  physical  alteration or construction, as the case may be, the owner
   11  or the person or entity proposing to  make  such  change  of  use  shall
   12  provide written notification to the department.
   13    2.  No person shall engage in any activity at an affected site remedi-
   14  ated pursuant to this title that is  not  consistent  with  restrictions
   15  placed upon the use of the property, or that will, or that reasonably is
   16  anticipated  to:  prevent  or  interfere  significantly with a proposed,
   17  ongoing, or completed project under this title;  or  expose  the  public
   18  health or the environment to a significantly increased threat of harm or
   19  damage at such affected site.
   20    3. For the purposes of this section:
   21    a.  "change  of  use" means the transfer of title to all or part of an
   22  affected site being addressed under this title, or any activity that  is
   23  likely  to  disrupt  or  expose  hazardous  waste and/or petroleum or to
   24  increase direct human exposure to hazardous waste and/or  petroleum;  or
   25  any  other conduct that will or may tend to significantly interfere with
   26  an ongoing or completed project under this title.
   27    b. "complete notice" means  a  notice  that  adequately  apprises  the
   28  department of the contemplated change and how such change may affect the
   29  property's proposed, ongoing, or completed remediation including but not
   30  limited  to  the  ability to implement the engineering and institutional
   31  controls associated with the affected site's remediation.
   32  § 27-1419. Immunity.
   33    Section eight of the court of claims act or any other provision of law
   34  to the contrary notwithstanding, the state shall be immune from  liabil-
   35  ity and action with respect to any act or omission done in the discharge
   36  of  the  department's responsibilities pursuant to this title; provided,
   37  however, that this section shall  not  limit  the  liability  which  may
   38  otherwise exist for the unlawful, willful or malicious acts or omissions
   39  on  the  part of the state, state agencies, or their officers, employees
   40  or agents; or for the ownership or responsibility for  the  disposal  of
   41  hazardous waste and/or petroleum according to law.
   42  § 27-1421. Permit waivers.
   43    The  department,  by and through the commissioner, shall be authorized
   44  to exempt a person from the requirement to obtain  any  state  or  local
   45  permit  or  other  authorization  for any activity needed to implement a
   46  program for the investigation  and/or  remediation  of  hazardous  waste
   47  and/or  petroleum;  provided, that the activity is conducted in a manner
   48  which satisfies all substantive  technical  requirements  applicable  to
   49  like activity conducted pursuant to a permit.
   50  § 27-1423. Access to sites.
   51    The  department,  by and through the commissioner, shall be authorized
   52  to:
   53    1. Require that any person permit a duly designated officer or employ-
   54  ee of the department or  of  a  municipal  corporation,  or  any  agent,
   55  consultant  or  contractor  of  the  department or of a municipal corpo-
   56  ration, or any other person, including an employee, agent, consultant or
 
       S. 6257                            61                            A. 9759
 
    1  contractor of a responsible  person  acting  at  the  direction  of  the
    2  department,  so authorized in writing by the commissioner, to enter upon
    3  any property which has or may have been  the  site  of  hazardous  waste
    4  and/or  petroleum disposal, and/or areas near such site, for the follow-
    5  ing purposes:
    6    a. to inspect and take samples of such hazardous waste and/or petrole-
    7  um and/or environmental media, utilizing such sampling methods as may be
    8  necessary or appropriate including without limitation soil  borings  and
    9  monitoring  wells;  provided,  that  no  sampling  methods involving the
   10  substantial disturbance of the ground surface of such  property  may  be
   11  utilized  until after a minimum of ten days written notice thereof shall
   12  have been provided to the owner and operator and occupant of such  prop-
   13  erty,  if  identifiable  by  reasonable efforts, unless the commissioner
   14  makes a written determination  that  such  notice  will  not  allow  the
   15  protection  of  the  public health or the environment, in which case two
   16  days written notice shall be sufficient;
   17    b. to implement the  investigation  and/or  remediation  of  hazardous
   18  waste  and/or  petroleum  and/or  environmental media; provided, that no
   19  such work may be undertaken until after a minimum of  ten  days  written
   20  notice  thereof  shall  have been provided to the owner and operator and
   21  occupant of such property, if identifiable by reasonable efforts, unless
   22  the commissioner makes a written determination that such notice will not
   23  allow the protection of the public health or the environment,  in  which
   24  case two days written notice shall be sufficient.
   25    2. a. Require that any person furnish to the department, in a form and
   26  manner  as  prescribed  by  the  department, information relating to the
   27  current and past hazardous waste and/or petroleum generation, treatment,
   28  storage, disposal and/or transportation activities of such person or any
   29  other person now or formerly under the control of such  person;  in  the
   30  event  such  person  cannot  comply therewith, in whole or in part, such
   31  person shall  furnish  to  the  department  information  describing  all
   32  efforts  made  by  such  person  to comply therewith; any information so
   33  furnished to the department shall be considered a  "written  instrument"
   34  as defined in subdivision three of section 175.00 of the penal law;
   35    b. Require that any person permit a duly designated officer or employ-
   36  ee  of  the  department at all reasonable times to have access to and to
   37  copy all books, papers, documents and records relating  to  the  current
   38  and  past  hazardous waste and/or petroleum generation, treatment, stor-
   39  age, disposal and/or transportation activities of  such  person  or  any
   40  person now or formerly under the control of such person;
   41    c.  Require,  by  subpoena  issued  in the name of the department, the
   42  production of books, papers, documents and other records, and the rendi-
   43  tion of testimony by deposition under oath of any person relating to the
   44  current and past hazardous waste and/or petroleum generation, treatment,
   45  storage, disposal and/or transportation activities of such person or any
   46  person now or formerly under the control of such person; such  subpoenas
   47  and  depositions shall be regulated by the civil practice law and rules;
   48  the commissioner may invoke the powers of the supreme court of the state
   49  of New York or any other  court  of  competent  jurisdiction  to  compel
   50  compliance therewith.
   51    §  15. Subdivision 8 of section 52-0101 of the environmental conserva-
   52  tion law, as added by chapter 512 of the laws of  1986,  is  amended  to
   53  read as follows:
   54    8.  "Hazardous  waste"  shall  have the definition set forth in [title
   55  nine of article twenty-seven] section 27-1301 of this chapter.
 
       S. 6257                            62                            A. 9759
 
    1    § 16. Subdivision 1 of section 52-0103 of the environmental  conserva-
    2  tion  law,  as  amended  by chapter 9 of the laws of 1994, is amended to
    3  read as follows:
    4    1.  For  remediation  of  hazardous waste sites, as set forth in title
    5  three of this article and for the closure of municipal landfills, as set
    6  forth in title five of article fifty-four of this chapter,  one  billion
    7  two  hundred  million  dollars of which[: (i)] up to one hundred million
    8  dollars shall be made available for state assistance payments toward the
    9  cost of the closure of municipal landfills, as set forth in  title  five
   10  of article fifty-four of this chapter; [and (ii) up to one hundred thou-
   11  sand  dollars  shall  be  made  available  for  the  study  of hazardous
   12  substance waste disposal sites, as defined in section  27-1316  of  this
   13  chapter;] and
   14    §  17. Section 71-2705 of the environmental conservation law, as added
   15  by chapter 550 of the laws of 1980 and subdivision 1 as amended by chap-
   16  ter 493 of the laws of 1985, is amended to read as follows:
   17  § 71-2705. Violations of section 27-1423 and titles  9,  11  and  13  of
   18               article 27 of this chapter.
   19    1.  Civil and administrative sanctions. Any person who violates any of
   20  the provisions of, or who fails to perform any duty imposed  by  section
   21  27-1423  and titles 9, 11 and 13 of article 27 or any rule or regulation
   22  promulgated pursuant thereto, or any term or condition  of  any  certif-
   23  icate  or  permit issued pursuant thereto, or any final determination or
   24  order of the commissioner made pursuant to this title shall be liable in
   25  the case of a first violation, for a civil penalty not to  exceed  twen-
   26  ty-five  thousand  dollars  and  an  additional penalty of not more than
   27  twenty-five thousand dollars for each day during  which  such  violation
   28  continues, to be assessed by the commissioner after an opportunity to be
   29  heard  pursuant  to  the provisions of section 71-1709 of this [chapter]
   30  article, or by the court in any action or proceeding pursuant to section
   31  71-2727 of this [chapter] article, and, in addition thereto, such person
   32  may by similar process be enjoined from continuing  such  violation  and
   33  any  permit  or  certificate  issued  to  such  person may be revoked or
   34  suspended or a pending renewal application denied.  In  the  case  of  a
   35  second  and  any  further  violation, the liability shall be for a civil
   36  penalty not to exceed fifty thousand dollars for each such violation and
   37  an additional penalty not to exceed fifty thousand dollars for each  day
   38  during which such violation continues.
   39    2.  Criminal  sanctions.  Any  person  who, having any of the culpable
   40  mental states defined in section 15.05 of the penal law,  shall  violate
   41  any  of  the  provisions  of or who fails to perform any duty imposed by
   42  section 27-1423 and titles 9, 11 and 13 of article 27 or any  rules  and
   43  regulations  promulgated  pursuant  thereto, or any term or condition of
   44  any certificate or permit issued pursuant thereto, or any final determi-
   45  nation or order of the commissioner made pursuant to this title shall be
   46  guilty of a misdemeanor and, upon conviction thereof, shall for a  first
   47  conviction  be  punished  by  a  fine not to exceed twenty-five thousand
   48  dollars per day of violation or by imprisonment for a term of  not  more
   49  than  one year, or both such fine and imprisonment. If the conviction is
   50  for an offense committed after a first conviction of such  person  under
   51  this  subdivision,  punishment  shall  be  by a fine not to exceed fifty
   52  thousand dollars per day of violation, or by imprisonment for  not  more
   53  than two years or by both such fine and imprisonment.
   54    §  18. Subdivision 1 of section 71-2727 of the environmental conserva-
   55  tion law, as amended by chapter 671 of the laws of 1986, is  amended  to
   56  read as follows:
 
       S. 6257                            63                            A. 9759
 
    1    1. The commissioner, after investigation, notice and an opportunity to
    2  be  heard, may issue, modify and revoke orders prohibiting violations of
    3  any of the provisions of article [27 or 71] twenty-seven or  seventy-one
    4  of this chapter or of any rule or regulation promulgated pursuant there-
    5  to  and  requiring the taking of such remedial measures as may be neces-
    6  sary or appropriate.   Nothing  herein  contained  shall  be  deemed  to
    7  preclude the disposition of any matter within the department's jurisdic-
    8  tion  under  article twenty-seven of this chapter by stipulation, agreed
    9  settlement, consent order, default, or other informal method, upon  such
   10  terms and subject to such conditions and limitations as the commissioner
   11  may deem just.
   12    §  19.  Article 71 of the environmental conservation law is amended by
   13  adding a new title 36 to read as follows:
   14                                  TITLE 36
   15                       PROTECTION OF NATURAL RESOURCES
   16  Section 71-3601. Declaration of policy and statement of purpose.
   17          71-3603. Definition.
   18          71-3605. Environmental easements; certain common law rules not
   19                     applicable.
   20          71-3607. Procedures for modifying or extinguishing environmental
   21                     easement.
   22          71-3609. Scope of this title.
   23          71-3611. Severability.
   24  § 71-3601. Declaration of policy and statement of purpose.
   25    The legislature hereby finds and declares that in order  to  implement
   26  the  state  policy  of  conserving,  improving  and  protecting  natural
   27  resources and the  environment  and  controlling  water,  land  and  air
   28  pollution,  the  imposition  of  institutional controls on affected real
   29  property is fundamental to the enhancement of  the  health,  safety  and
   30  welfare of the people of the state and their overall economic and social
   31  well being.
   32  § 71-3603. Definition.
   33    When  used  in this title, "environmental easement" means an easement,
   34  covenant, restriction or other interest in real property, created  under
   35  and  subject  to  the provisions of this title which limits or restricts
   36  development, management or use of such real property for the purpose  of
   37  protecting the public health or safety or natural resources or the envi-
   38  ronment  from pollution affecting the real property in a manner consist-
   39  ent with the public policy and purpose set forth in section  71-3601  of
   40  this  title; provided that no such easement shall be acquired or held by
   41  the state which is subject to the provisions of article fourteen of  the
   42  constitution.
   43  § 71-3605. Environmental  easements; certain common law rules not appli-
   44               cable.
   45    1. An environmental easement may be created or  conveyed  only  by  an
   46  instrument  which complies with the requirements of section 5-703 of the
   47  general obligations law and which is subscribed by the grantee. It shall
   48  be of perpetual duration unless otherwise provided in such instrument.
   49    2. An environmental easement shall be modified  or  extinguished  only
   50  pursuant  to  the  provisions of section 71-3607 of this title. Any such
   51  modification or extinguishment shall set forth in  an  instrument  which
   52  complies  with  the  requirements  of section 5-703 of the general obli-
   53  gations law or in an instrument filed in a manner prescribed for record-
   54  ing a conveyance of real property pursuant to section two hundred  nine-
   55  ty-one of the real property law.
 
       S. 6257                            64                            A. 9759
 
    1    3.  (a)  An  environmental  easement  shall be held only by the state,
    2  except that the state shall not be authorized or empowered to acquire or
    3  hold any environmental easement which is subject to  the  provisions  of
    4  article fourteen of the constitution.
    5    (b)  Any  environmental  easement created pursuant to this title shall
    6  not limit, restrict or modify the right to construct, operate or contin-
    7  ue the use of any facility, or  impede  any  activity,  duly  authorized
    8  under  the  applicable  provisions  of  the  federal natural gas act (15
    9  U.S.C. §§ 717-717w).
   10    4. An environmental easement shall be duly  recorded  and  indexed  as
   11  such  in  the office of the recording officer for the county or counties
   12  where the land is situate in the manner prescribed by  article  nine  of
   13  the  real  property law. The easement shall describe the property encum-
   14  bered by the easement by adequate legal description or by reference to a
   15  recorded map showing its boundaries and bearing the seal  and  signature
   16  of  a  licensed  land  surveyor, or if the easement encumbers the entire
   17  property described in a deed of record, the easement may incorporate  by
   18  reference  the description in such deed, otherwise it shall refer to the
   19  liber and page of the deed or deeds of the record owner or owners of the
   20  real property burdened by the environmental easement. An instrument  for
   21  the purpose of creating, conveying, modifying or terminating an environ-
   22  mental  easement  shall not be effective unless recorded. The department
   23  shall maintain a file of environmental easements.
   24    5. An environmental easement may be enforced in law or equity  by  its
   25  grantor  or  by  the  state, and is enforceable against the owner of the
   26  burdened property. Enforcement shall not  be  defeated  because  of  any
   27  subsequent  adverse  possession,  laches, estoppel or waiver. No general
   28  law of the state which operates to defeat the enforcement of any  inter-
   29  est  in  real  property  shall  operate to defeat the enforcement of any
   30  environmental easement unless such  general  law  expressly  states  the
   31  intent  to  defeat  the enforcement of such easement or provides for the
   32  exercise of the power of eminent domain. It is  not  a  defense  in  any
   33  action to enforce an environmental easement that:
   34    (a) It is not appurtenant to an interest in real property;
   35    (b) It is not of a character that has been recognized traditionally at
   36  common law;
   37    (c) It imposes a negative burden;
   38    (d)  It imposes affirmative obligations upon the owner of any interest
   39  in the burdened property;
   40    (e) The benefit does not touch or concern real property; or
   41    (f) There is no privity of estate or of contract.
   42    6. Agents, employees, or other representatives of the state may  enter
   43  and  inspect  the  property  burdened  by an environmental easement in a
   44  reasonable manner and at reasonable times to assure compliance with  the
   45  restriction.
   46    7.  The  department  may promulgate regulations establishing standards
   47  for environmental easements.
   48    8. Written notice shall be provided to the director of the budget  and
   49  notice  published  in  the  state  register and the environmental notice
   50  bulletin at least thirty days prior to the acquisition, or entry into  a
   51  contract  for  the  acquisition,  on behalf of the state of any environ-
   52  mental easement.
   53  § 71-3607. Procedures for modifying or extinguishing environmental ease-
   54               ment.
   55    1. An environmental easement held by the state may only be modified or
   56  extinguished:
 
       S. 6257                            65                            A. 9759
 
    1    (a) as provided in the instrument creating the easement; or
    2    (b)  in a proceeding pursuant to section nineteen hundred fifty-one of
    3  the real property actions and proceedings law; or
    4    (c) upon the exercise of the power of eminent domain; or
    5    (d) where land subject to an environmental easement or an interest  in
    6  such  land  is  required for a major utility transmission facility which
    7  has received a certificate of  environmental  compatibility  and  public
    8  need  pursuant to article seven of the public service law or is required
    9  for a major steam electric generating  facility  which  has  received  a
   10  certificate  of  environmental compatibility and public need pursuant to
   11  article eight of the public service law or is required for a major elec-
   12  tric generating facility which has received a  certificate  of  environ-
   13  mental  compatibility  and  public  need  pursuant to article ten of the
   14  public service law, upon the filing of  such  certificate  in  a  manner
   15  prescribed  for  recording  a  conveyance  of  real property pursuant to
   16  section two hundred ninety-one of the real property  law  or  any  other
   17  applicable  provision of law; provided, the commissioner shall have made
   18  and filed in the main office of the department a  certificate  that  the
   19  exercise  of  such easement is no longer necessary to the accomplishment
   20  of its purpose, and consenting to  the  modification  or  extinguishment
   21  thereof.
   22    2.  Where an environmental easement is modified or extinguished pursu-
   23  ant to paragraph (d) of subdivision one of this section,  such  easement
   24  shall  be  modified or extinguished only to the minimum extent necessary
   25  to accommodate the facility which is the subject of the  certificate  of
   26  environmental compatibility and public need.
   27    3.  Nothing  in this section shall be construed to preclude the extin-
   28  guishment or modification of an environmental easement pursuant  to  the
   29  applicable  provisions of the federal natural gas act (15 U.S.C. §§ 717-
   30  717w).
   31  § 71-3609. Scope of this title.
   32    This title shall not affect any interests or rights in  real  property
   33  which  are  not environmental easements, and shall not affect the rights
   34  of owners to convey any interests in real property which they could  now
   35  create  under existing law without reference to the terms of this title.
   36  Nothing in this title shall diminish the powers granted by any other law
   37  to acquire interests or rights  in  real  property  by  purchase,  gift,
   38  eminent  domain  or  otherwise  and to use the same for public purposes.
   39  Nothing in this title shall be construed to alter the  authority  other-
   40  wise  available  to the state to acquire environmental easements for the
   41  purposes of section 71-3601 of this title by eminent domain.
   42  § 71-3611. Severability.
   43    The provisions of this title shall be severable, and  if  any  clause,
   44  sentence, paragraph, subdivision or part of this title shall be adjudged
   45  by  any  court  of  competent  jurisdiction to be invalid, such judgment
   46  shall not affect, impair or invalidate the remainder  thereof, but shall
   47  be confined in its operation to the clause, sentence, paragraph,  subdi-
   48  vision  or  part  thereof  directly involved in the controversy in which
   49  such judgment shall have been rendered; provided  that  if  an  environ-
   50  mental  easement  created  pursuant  to  this title is determined by any
   51  court of competent jurisdiction to be land or water or  an  interest  in
   52  land  or  water  subject  to  the  provisions of article fourteen of the
   53  constitution then the authority of the state to  hold  or  acquire  such
   54  easement  and the conveyance to the state of such easement shall be void
   55  ab initio.
 
       S. 6257                            66                            A. 9759
 
    1    § 20. The section  heading of section 213 of the  civil  practice  law
    2  and  rules,  as amended by chapter 43 of the laws of 1975, is amended to
    3  read as follows:
    4    Actions to be commenced within six years: where not otherwise provided
    5  for;  on  contract;  on sealed instrument; on bond or note, and mortgage
    6  upon real property; by state based on misappropriation of public proper-
    7  ty; based on mistake; by corporation against director, officer or stock-
    8  holder; based on fraud; by state based on claims pursuant to subdivision
    9  ten of section 27-1313 of the environmental conservation law;  by  state
   10  based  on  injury  to,  or destruction of, or loss of, or loss of use of
   11  natural resources.
   12    § 21. Section 213 of the civil practice law and rules  is  amended  by
   13  adding three new subdivisions 9, 10 and 11 to read as follows:
   14    9.  an  action  by  the  state  under  authority of subdivision ten of
   15  section 27-1313 of the environmental conservation law; the  time  within
   16  which the action must be commenced shall be computed from the initiation
   17  of physical on-site construction of the remedial program.
   18    10.  an  action for contribution under authority of subdivision eleven
   19  of section 27-1313 of the environmental conservation law; the time with-
   20  in which such action must be commenced shall be computed from the  later
   21  of:
   22    a. the date of judgment in any action under any law, state or federal,
   23  respecting the costs that are the subject of the claim for contribution;
   24  or
   25    b. the date of the issuance of an order or agreement by the department
   26  of  environmental conservation respecting the costs that are the subject
   27  of the claim for contribution or respecting activities  the  conduct  of
   28  which  caused   the expenditure of the costs that are the subject of the
   29  claim for contribution.
   30    11. an action under authority of subdivision twelve of section 27-1313
   31  of the environmental conservation law; the time within which the  action
   32  must  be  commenced  shall  be  computed  from  the  completion  of  the
   33  construction of the inactive  hazardous  waste  disposal  site  remedial
   34  program.
   35    §  22.  The  general  municipal law is amended by adding a new section
   36  970-r to read as follows:
   37    § 970-r. State assistance: brownfield redevelopment area planning.  1.
   38  Definitions.  a. "Brownfield redevelopment area" is  an  area  where:  a
   39  number of abandoned, idled or under-utilized properties are clustered in
   40  a  geographic  location;  contamination by hazardous waste as defined in
   41  section 27-1301 of the environmental conservation law  or  petroleum  as
   42  defined  in  section  one  hundred  seventy-two of the navigation law is
   43  suspected  of being widespread; and the  remediation  of  any  one  site
   44  would  not  address  all  suspected  sources of contamination and enable
   45  beneficial environmental and economic use.
   46    b. A "brownfield redevelopment area plan" is a plan  undertaken  by  a
   47  municipality  or  not-for-profit  corporation  to  develop a strategy to
   48  return a brownfield redevelopment area to productive economic use  while
   49  protecting human health and the environment.
   50    2.  The  secretary of state is authorized to provide technical assist-
   51  ance to municipalities and not-for-profit corporations acting in cooper-
   52  ation with municipalities, to enhance their  capabilities  to  plan  the
   53  redevelopment of brownfield redevelopment areas.
   54    3.  Within  the  limits  of  appropriations therefor, the secretary of
   55  state is authorized  to  provide,  on  a  competitive  basis,  financial
   56  assistance  to  municipalities and not-for-profit corporations acting in
 
       S. 6257                            67                            A. 9759
 
    1  cooperation with municipalities, to advance plans for the  redevelopment
    2  of brownfield redevelopment areas, as follows:
    3    a.  in  the preparation of a pre-planning study to develop information
    4  necessary for designating a brownfield redevelopment area.  Pre-planning
    5  activities include, but are not limited to, basic information about  the
    6  boundaries  of  the  area,  the number and size of brownfield sites, the
    7  current and anticipated uses of the properties and  groundwater  in  the
    8  area,  known  data about the environmental conditions of the properties,
    9  ownership of the sites in the area and other information deemed relevant
   10  by the secretary of state.  Such study, when completed, shall be submit-
   11  ted to the secretary of  state.    The  municipality  or  not-for-profit
   12  corporation with the approval of the municipality may then file  a peti-
   13  tion  requesting  designation  of the area as a brownfield redevelopment
   14  area for the approval of the secretary of state;
   15    b. in the preparation of a brownfield redevelopment area plan.   Plan-
   16  ning activities eligible to receive funding include, but are not limited
   17  to,  a  strategy which defines the end uses of the brownfield redevelop-
   18  ment area once the properties  have  been  remediated  and  revitalized,
   19  including  any  infrastructure needs, and identifies actions required to
   20  reach such proposed end-uses, and other information deemed  relevant  by
   21  the  secretary  of state.   Such plan must be formulated in consultation
   22  with community based organizations and affected landowners. The  munici-
   23  pality  or  not-for-profit  corporation with the approval of the munici-
   24  pality shall submit such plan for  the  approval  of  the  secretary  of
   25  state.
   26    c.  in  the  preparation  of site assessments of properties owned by a
   27  municipality or a party not responsible for the remediation of hazardous
   28  waste or petroleum according to applicable principles  of  statutory  or
   29  common  law  liability,  or  a responsible party according to applicable
   30  principles of statutory or common law liability if such person's liabil-
   31  ity arises solely from ownership or operation of the site subsequent  to
   32  the  disposal  of  hazardous  waste or the discharge of petroleum in the
   33  brownfield redevelopment area. Assessment activities  include,  but  are
   34  not limited to, testing of properties to determine the nature and extent
   35  of  the  contamination  (including  soil and groundwater), environmental
   36  assessments, the development  of  a  proposed  remediation  strategy  to
   37  address  any  identified  contamination  and any other activities deemed
   38  appropriate by the secretary in consultation with  the  commissioner  of
   39  environmental   conservation.  Any  environmental  assessment  shall  be
   40  subject to the review and approval of the commissioner of  environmental
   41  conservation.  State  assistance  payments shall not exceed seventy-five
   42  percent of the cost of such plans. The secretary of state, in  consulta-
   43  tion with the commissioner of environmental conservation, may enter into
   44  a  contract with a municipality or not-for-profit corporation, including
   45  such terms and conditions as the secretary of state and commissioner  of
   46  environmental  conservation  may  deem appropriate, to provide the state
   47  assistance.
   48    4. When determining the eligibility of a municipality or  not-for-pro-
   49  fit  corporation for such assistance, the secretary of state, in consul-
   50  tation with the commissioner of  environmental  conservation  and  other
   51  appropriate  agencies,  shall consider, among other matters, the follow-
   52  ing: benefit to human health, benefit to the environment,  the  economic
   53  benefit  to  the  state  (including new employment opportunities and new
   54  public recreational resources),  and  the  strength  of  local  support.
   55  Funding preferences shall be given to proposals for areas: with a demon-
   56  strated  need  for restoration; that would yield economic benefit to the
 
       S. 6257                            68                            A. 9759
 
    1  state and create new jobs or a  new  public  resource;  that  receive  a
    2  strong  level  of  local support; and where a majority of the properties
    3  are owned by a municipality or party not responsible for the remediation
    4  of  hazardous  waste  or petroleum according to applicable principles of
    5  statutory or common law liability or a responsible  party  according  to
    6  applicable  principles  of  statutory  or  common  law liability if such
    7  person's liability arises solely from ownership or operation of the site
    8  subsequent to the disposal of hazardous waste or the discharge of petro-
    9  leum.
   10    5. The secretary of state shall provide from available monies  techni-
   11  cal support to municipalities and not-for-profit corporations to prepare
   12  their  brownfield redevelopment areas program. Such support includes but
   13  is not limited to personal and non-personal services.
   14    § 23. The navigation law is amended by adding a new section  172-a  to
   15  read as follows:
   16    §  172-a.  Liability exclusions.  1. Notwithstanding subdivision thir-
   17  teen of section one hundred seventy-two of this article the term  "owner
   18  or  operator"  does  not include a person that is a lender that, without
   19  participating in the management of property, holds indicia of  ownership
   20  primarily to protect the security interest of the person in that proper-
   21  ty;  nor  does it include a person that is a lender that did not partic-
   22  ipate in management of property prior  to  foreclosure,  notwithstanding
   23  that  the  person  forecloses  on  such  property and after foreclosure,
   24  sells, re-leases (in the case of a lease finance transaction), or liqui-
   25  dates the property, maintains business activities, winds up  operations,
   26  undertakes  in  a non-negligent manner remedial actions under the direc-
   27  tion of the department, with respect to  such  property,  or  takes  any
   28  other  measure  to  preserve, protect, or prepare such property prior to
   29  sale or disposition, if the person seeks to sell, re-lease (in the  case
   30  of  a  lease finance transaction), or otherwise divest the person of the
   31  property  at the earliest practicable commercially reasonable  time,  on
   32  commercially reasonable terms, taking into account market conditions and
   33  legal  and  regulatory requirements; provided, however, that such lender
   34  shall not make a claim against the fund arising out of a discharge asso-
   35  ciated with such property.  For purposes of this subdivision:
   36    (a) the term "participate in management" means actually  participating
   37  in  the  management  or  operational affairs of a property; and does not
   38  include merely having the capacity  to  influence,  or  the  unexercised
   39  right to control, property operations;
   40    (b)  a  person  that  is  a lender and that holds indicia of ownership
   41  primarily to protect a security interest in a property shall be  consid-
   42  ered  to  participate in management only if, while the borrower is still
   43  in possession of the property encumbered by the security  interest,  the
   44  person  exercises  decisionmaking control over the environmental compli-
   45  ance related to the  property,  such  that  the  person  has  undertaken
   46  responsibility  for  the  hazardous waste handling or disposal practices
   47  related to the property; or exercises control at a level  comparable  to
   48  that  of  a manager of the property, such that the person has assumed or
   49  manifested responsibility for the overall  management  of  the  property
   50  encompassing  day-to-day  decisionmaking  with  respect to environmental
   51  compliance; or over all or substantially all of  the  operational  func-
   52  tions  (as  distinguished from financial or administrative functions) of
   53  the property other than the function of environmental compliance;
   54    (c) the term "participate in management" does not  include  performing
   55  an  act or failing to act prior to the time at which a security interest
   56  is created in a property; and
 
       S. 6257                            69                            A. 9759
 
    1    (d) 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 the property; requiring a response action or other  lawful  means  of
    9  addressing  the  release  or  threatened release of a hazardous waste in
   10  connection with the property prior to, during, or on the  expiration  of
   11  the term of the extension of credit; providing financial or other advice
   12  or  counseling  in  an  effort  to mitigate, prevent, or cure default or
   13  diminution in the value of the property;  restructuring,  renegotiating,
   14  or otherwise agreeing to alter the terms and conditions of the extension
   15  of 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 of environmental conservation, if the
   20  actions do not rise to the level of participating in management  (within
   21  the meaning of this subdivision);
   22    (e)  the  term  "extension  of credit" includes a lease finance trans-
   23  action in which the lessor does not initially select the leased property
   24  and does not during the lease term control the daily operations or main-
   25  tenance of the property; 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; 29 (f) the term "financial or administrative function" includes a func- 30 tion such as that of a credit manager, accounts payable officer, 31 accounts receivable officer, personnel manager, comptroller, or chief 32 financial officer, or a similar function; 33 (g) the term "foreclosure" and "foreclose" means, respectively, 34 acquiring and to acquire, a property through purchase at sale under a 35 judgment or decree, power of sale, or nonjudicial foreclosure sale; a 36 deed in lieu of foreclosure, or similar conveyance from a trustee; or 37 repossession, if the property was security for an extension of credit 38 previously contracted; conveyance pursuant to an extension of credit 39 previously contracted, including the termination of a lease agreement; 40 or any other formal or informal manner by which the person acquires, for 41 subsequent disposition, title to or possession of a property in order to 42 protect the security interest of the person; 43 (h) the term "lender" means an insured depository institution (as 44 defined in 12 USC section 1813); an insured credit union (as defined in 45 12 USC section 1752); a bank or association chartered under the Farm 46 Credit Act of 1971 (12 U.S.C. 2001 et seq.); a leasing or trust company 47 that is an affiliate of an insured depository institution; any person 48 (including a successor or assignee of any such person) that makes a bona 49 fide extension of credit to or takes or acquires a security interest 50 from a nonaffiliated person; the Federal National Mortgage Association, 51 the Federal Home Loan Mortgage Corporation, the Federal Agricultural 52 Mortgage Corporation, or any other entity that in a bona fide manner 53 buys or sells loans or interests in loans; a person that insures or 54 guarantees against a default in the repayment of an extension of credit, 55 or acts as a surety with respect to an extension of credit, to a nonaf- 56 filiated person; and a person that provides title insurance and that   S. 6257 70 A. 9759 1 acquires a property as a result of assignment or conveyance in the 2 course of underwriting claims and claims settlement; 3 (i) 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 (j) 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 2. Notwithstanding subdivision thirteen of section one hundred seven- 12 ty-two of this article the term, "owner or operator" does not include 13 the state or a public corporation which acquired, and thereafter 14 retained without participating in the management of such property, 15 ownership or control involuntarily or voluntarily by virtue of its func- 16 tion as sovereign; provided, however, that such public corporation shall 17 not make a claim against the fund arising out of a discharge associated 18 with such property. Neither the state nor any public corporation shall 19 incur under this chapter any liability as to matters within the juris- 20 diction of the department as a result of actions taken in response to an 21 emergency created by the discharge or threatened discharge of petroleum 22 by another person, provided that such actions by the state or public 23 corporation did not constitute reckless, willful, wanton or intentional 24 misconduct. As used in this subdivision: 25 (a) "public corporation" means a public corporation as defined in the 26 general construction law; 27 (b) "involuntary acquisition of ownership or control" includes, but is 28 not limited to, the following: 29 (i) acquisitions by the state or a public corporation, or its agent, 30 acting as a conservator or receiver pursuant to a clear and direct stat- 31 utory mandate or regulatory authority; 32 (ii) acquisitions of assets through foreclosure and its equivalents as 33 defined in paragraph (g) of subdivision one of this section, or other- 34 wise, by the state or a public corporation in the course of administer- 35 ing a loan, loan guarantee or loan insurance program; 36 (iii) acquisitions by the state or a public corporation pursuant to 37 seizure or forfeiture authority; 38 (iv) acquisitions by the state or a public corporation as the result 39 of tax delinquency purposes; provided, that such ownership or control is 40 not retained primarily for investment purposes. 41 (c) "management participation" means that the state or a public corpo- 42 ration is actually participating in the management or operation of the 43 property but does not include the mere capacity to influence, ability to 44 influence or unexercised right to control the operation of the property. 45 Nothing contained in this subdivision affects the applicability of this 46 section in favor of a holder of a security interest according to the 47 terms thereof. 48 3. Notwithstanding subdivision thirteen of section one hundred seven- 49 ty-two of this article the term, "owner or operator" includes a fiduci- 50 ary; provided, however, that such liability on the part of a fiduciary 51 shall not exceed the assets held in the fiduciary capacity if such 52 person is not liable independently of such person's ownership as a fidu- 53 ciary or actions taken in a fiduciary capacity; provided, however, that 54 such fiduciary shall not make a claim against the fund arising out of a 55 discharge associated with such property.   S. 6257 71 A. 9759 1 (a) For purposes of this subdivision, (i) the term "fiduciary" means a 2 person acting for the benefit of another party as a bona fide trustee; 3 executor; administrator; custodian; guardian of estates or guardian ad 4 litem; receiver; conservator; committee of estates of incapacitated 5 persons; personal representative; trustee (including a successor to a 6 trustee) under an indenture agreement, trust agreement, lease, or simi- 7 lar financing agreement, for debt securities, certificates of interest 8 or certificates of participation in debt securities, or other forms of 9 indebtedness as to which the trustee is not, in the capacity of trustee, 10 the lender; or representative in any other capacity that the department, 11 after providing public notice, determines to be similar to the various 12 capacities previously described in this paragraph; and does not include 13 either a person that is acting as a fiduciary with respect to a trust or 14 other fiduciary estate that was organized for the primary purpose of, or 15 is engaged in, actively carrying on a trade or business for profit, or 16 to facilitate one or more estate plans, or because of the incapacity of 17 a natural person or a person that acquires ownership or control of a 18 property with the objective purpose of avoiding liability of the person 19 or any other person; 20 (ii) 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 (b) Nothing in this subdivision affects the rights or immunities or 25 other defenses that are available under law that are applicable to a 26 person subject to this subdivision or creates any liability for a person 27 or a private right of action against a fiduciary or any other person. 28 (c) Nothing in this subdivision applies to a person if that person, 29 acts in a capacity other than that of a fiduciary or in a fiduciary 30 capacity and in that capacity, directly or indirectly benefits from a 31 trust or fiduciary relationship; or is a beneficiary and fiduciary with 32 respect to the same fiduciary estate and as a fiduciary, receives bene- 33 fits that exceed customary or reasonable compensation, and incidental 34 benefits, permitted under other applicable law. 35 (d) This subdivision does not preclude a claim under this chapter 36 against the assets of the estate or trust administered by the fiduciary; 37 or a nonemployee agent or independent contractor retained by a fiduci- 38 ary. 39 4. Notwithstanding subdivision thirteen of section one hundred seven- 40 ty-two of this article the term, "owner or operator" includes an indus- 41 trial development agency created under the general municipal law, other 42 than one that holds bare legal title to such property; has not partic- 43 ipated with any party responsible under law for the remediation of 44 contamination in, on, or from such property to attempt to have such a 45 party avoid its remedial liability; has not exercised any contractual 46 rights it may have or had, if any, under the lease, guarantee, or any 47 other financing agreement pursuant to which the industrial development 48 agency would assume control over the actual operation of the property; 49 has not taken possession or control of the property; and does not make a 50 claim against the fund arising out of a discharge associated with such 51 property. Nothing in this subdivision affects the rights or immunities 52 or other defenses that are available under law that are applicable to a 53 person subject to this subdivision or creates any liability for a person 54 or a private right of action against an industrial development agency or 55 any other person.   S. 6257 72 A. 9759 1 5. Notwithstanding the foregoing, a person receiving a liability 2 exemption or liability limitation under subdivision one, two, three or 3 four of this section shall be deemed to have waived any claim pursuant 4 to section one hundred eighty-one of this article that such person may 5 have against the New York environmental protection and spill compen- 6 sation fund. 7 § 24. Paragraph (a) of subdivision 2 of section 176 of the navigation 8 law, as amended by chapter 584 of the laws of 1992, is amended to read 9 as follows: 10 (a) Upon the occurrence of a discharge of petroleum, the department 11 shall respond promptly and proceed to cleanup and remove the discharge 12 in accordance with environmental priorities or may, at its discretion, 13 direct the discharger to promptly cleanup and remove the discharge. The 14 department shall be responsible for cleanup and removal or as the case 15 may be, for retaining agents and contractors who shall operate under the 16 direction of that department for such purposes. Implementation of clean- 17 up and removal procedures after each discharge shall be conducted in 18 accordance with environmental priorities and procedures established by 19 the department. Such procedures shall provide: 20 (i) the objective of a cleanup and removal that the department deter- 21 mines does not constitute an immediate response cleanup shall be the 22 protection of public health and the environment, with the minimum objec- 23 tive being to eliminate or mitigate all significant threats to public 24 health and the environment presented by such discharge through proper 25 application of scientific and engineering principles; and that the reme- 26 dy must be selected upon due consideration of the following factors: 27 (A) conformance to standards and criteria that are generally applica- 28 ble, consistently applied, and officially promulgated, that are either 29 directly applicable, or that are not directly applicable but are rele- 30 vant and appropriate, unless good cause exists why conformity should be 31 dispensed with, and with consideration being given to guidance deter- 32 mined, after the exercise of engineering judgment, to be applicable; 33 (B) overall protectiveness of public health and the environment; 34 (C) short-term effectiveness; 35 (D) long-term effectiveness; 36 (E) reduction of toxicity, mobility, and volume with treatment; 37 addressing a hot spot of petroleum that permanently and significantly 38 reduces the volume, toxicity, and/or mobility of the petroleum is to be 39 preferred over a method that does not do so. The hierarchy of remedial 40 technologies shall be as set forth under section 27-0105 of the environ- 41 mental conservation law; 42 (F) cost; 43 (G) implementability; 44 (H) community acceptance; and 45 (I) land use: the current, intended, and reasonably anticipated future 46 land uses for the property and its surroundings, if ascertainable. 47 (ii) the objective of a cleanup and removal that the department deter- 48 mines does constitute an immediate response cleanup shall be to effectu- 49 ate a prompt cleanup and removal of contamination to ensure restoration 50 of the environment to pre-spill conditions. For purposes of this para- 51 graph, an immediate response cleanup shall be one that comprises a 52 discrete set of activities which can be undertaken without extensive 53 investigation and evaluation, to prevent, mitigate, or remedy environ- 54 mental damage or the consequences of environmental damage attributable 55 to the discharge.   S. 6257 73 A. 9759 1 (iii) the remediation of soil as part of any cleanup and removal of a 2 discharge under this article shall be performed in accordance with the 3 soil cleanup levels promulgated pursuant to section 27-1316 of the envi- 4 ronmental conservation law. 5 (iv) for all cleanup and removal actions other than immediate response 6 cleanups, the department shall place a notification in the environmental 7 notice bulletin and shall notify individuals, groups, and/or organiza- 8 tions that have expressed interest in or are affected by such cleanup 9 and removal actions upon the initiation of an investigation, upon the 10 successful completion of such investigation, and upon the submission of 11 a proposed remedy. The department shall accept public comments for 12 forty-five days prior to approving such remedy. 13 § 25. Paragraph (b) of subdivision 2 of section 176 of the navigation 14 law is relettered paragraph (c) and a new paragraph (b) is added to read 15 as follows: 16 (b) The department shall determine cleanup levels for contaminants in 17 the soil using site specific data until the commissioner promulgates 18 rules and regulations pursuant to section 27-1315 and subdivision five 19 of section 27-1316 of the environmental conservation law and thereafter 20 shall use the soil cleanup levels set forth in such rules and regu- 21 lations, as may be amended. 22 § 26. Section 176 of the navigation law is amended by adding a new 23 subdivision 9 to read as follows: 24 9. The department, by and through the commissioner, shall be author- 25 ized to exempt a person from the requirement to obtain any state or 26 local permit or other authorization for any activity needed to implement 27 a program for the cleanup and removal of petroleum pursuant to this 28 article; provided, that the activity is conducted in a manner which 29 satisfies all substantive technical requirements applicable to like 30 activity conducted pursuant to a permit. 31 § 27. Subdivision 1 of section 181 of the navigation law, as amended 32 by chapter 712 of the laws of 1989, is amended to read as follows: 33 1. [Any] (a) Except as provided in paragraph (e) of this subdivision, 34 any person who has discharged petroleum shall be strictly liable, with- 35 out regard to fault, for all cleanup and removal costs and all direct 36 and indirect damages, no matter by whom sustained, as defined in this 37 section. In addition to cleanup and removal costs and damages, any such 38 person who is notified of such release and who did not undertake relo- 39 cation of persons residing in the area of the discharge in accordance 40 with paragraph (c) of subdivision seven of section one hundred seventy- 41 six of this article, shall be liable to the fund for an amount equal to 42 two times the actual and necessary expense incurred by the fund for such 43 relocation pursuant to section one hundred seventy-seven-a of this arti- 44 cle. Additionally, the department shall be entitled to a penalty in an 45 amount no less than one and no more than three times all cleanup and 46 removal costs if it proves by a preponderance of the evidence that it 47 has expended reasonable efforts as set forth in this subdivision. For 48 purposes of this subdivision, the department has expended reasonable 49 efforts to obtain a voluntary commitment if such person is informed in 50 writing of the department's offer to negotiate a voluntary commitment 51 and such responsible person does not respond to the department's offer; 52 or responds by refusing to negotiate; or starts to negotiate and there- 53 after discontinues same; or acts in bad faith in the negotiation proc- 54 ess, and continues not to make such commitment after receiving a final 55 written notification from the department that apprises such responsible 56 person that failure to enter into the voluntary commitment will result   S. 6257 74 A. 9759 1 in the state's recovery of all costs, both direct and indirect, respect- 2 ing such discharge; then the state shall be entitled to recover all 3 costs, both direct and indirect, respecting such discharge that the 4 state shall have incurred plus, to the extent that the state can show by 5 a preponderance of the evidence that it has fulfilled the procedural 6 steps in this paragraph, a penalty in an amount up to three times, but 7 no less than one time, all costs, both direct and indirect, the state 8 shall have incurred in carrying out same. 9 (b) Notwithstanding paragraph (a) of this subdivision, such person 10 shall only be liable to the state for an amount equal to all costs, both 11 direct and indirect, the state shall have incurred respecting such 12 discharge if such person can establish by a preponderance of the 13 evidence that for good cause shown, it failed and refused to enter into 14 such voluntary commitment with the department. 15 (c) Two or more owners and/or persons described in paragraph (a) of 16 subdivision three of this section may claim contribution among them- 17 selves in an action brought in a court of competent jurisdiction, and 18 the amount of contribution to which any of them is entitled shall be 19 equal to the excess paid by that person over and above such person's 20 equitable share of costs. However, the amount of contribution to which 21 any of them is entitled shall be three times the excess paid by that 22 person over and above such person's equitable share of costs associated 23 with the carrying out of such person's obligations under the voluntary 24 commitment with the department described in paragraph (a) of this subdi- 25 vision if one-third of such award shall be paid to the remedial program 26 transfer fund established pursuant to section ninety-seven-yyy of the 27 state finance law and the court finds that: 28 (i) the contribution defendant is a person described in paragraph (a) 29 of this subdivision for such site; 30 (ii) the contribution plaintiff gave thirty days notice to the 31 contribution defendant of the plaintiff's intention to seek contribution 32 in the event that the contribution defendant declined to participate in 33 the implementation of the contribution plaintiff's voluntary commitment; 34 (iii) the contribution defendant failed or refused to enter into a 35 settlement agreement with the contribution plaintiff; and 36 (iv) the contribution plaintiff entered into a voluntary commitment 37 with the department to remediate the site. 38 (d) A person misidentified by the department as a person described in 39 paragraph (a) of this subdivision but which entered into a voluntary 40 commitment with the department may recover from the New York environ- 41 mental protection and spill compensation fund created under section one 42 hundred seventy-nine of this article the costs it shall have incurred 43 that are reasonable in light of the action agreed to be undertaken. 44 (e) There shall be no liability under this subdivision for a person 45 otherwise liable who can establish by a preponderance of the evidence 46 that the discharge was caused solely by an act of God; an act of war; or 47 an act or omission of a third party other than an employee or agent of 48 such person, or than one whose act or omission occurs in connection with 49 a contractual relationship, existing directly or indirectly, with such 50 person (except where the sole contractual arrangement arises from a 51 published tariff and acceptance for carriage by a common carrier or 52 rail), if such person establishes by a preponderance of the evidence 53 that such person is other than one that transports or supplies petroleum 54 and exercised due care with respect to the petroleum concerned, taking 55 into consideration the characteristics of such petroleum, in light of 56 all relevant facts and circumstances, and took precautions against fore-   S. 6257 75 A. 9759 1 seeable acts or omissions of any such third party and the consequences 2 that could foreseeably result from such acts or omissions; or any combi- 3 nation of them. For purposes of this paragraph, the term "contractual 4 relationship" includes, but is not limited to, land contracts, deeds or 5 other instruments transferring title or possession, unless the property 6 on which the discharge concerned is located was acquired by such person 7 after the discharge on, in, or at such property, and such person estab- 8 lishes one or more of the circumstances described in subparagraph (i), 9 (ii) or (iii) of this paragraph by a preponderance of the evidence: 10 (i) At the time such person acquired the property such person did not 11 know and had no reason to know that any petroleum was discharged on, in, 12 or at the property. To establish that such person had no reason to know, 13 such person must have undertaken, at the time of acquisition, all appro- 14 priate inquiry into the previous ownership and uses of the property 15 consistent with good commercial or customary practice in an effort to 16 minimize liability. For purposes of the preceding sentence, the commis- 17 sioner shall take into account any specialized knowledge or experience 18 on the part of such person, the relationship of the purchase price to 19 the value of the property if uncontaminated, commonly known or reason- 20 ably ascertainable information about the property, the obviousness of 21 the presence or likely presence of contamination at the property, and 22 the ability to detect such contamination by appropriate inspection; or 23 (ii) Such person is a government entity which acquired the property by 24 escheat, or through any other involuntary transfer or acquisition; or 25 (iii) Such person acquired the property by inheritance or bequest, and 26 that such person exercised due care with respect to the petroleum 27 concerned, taking into consideration the characteristics of such petro- 28 leum, in light of all relevant facts and circumstances and took precau- 29 tions against foreseeable acts or omissions of any such third party and 30 the consequences that could foreseeably result from such acts or omis- 31 sions. 32 (f) Nothing in this subdivision shall diminish the liability of any 33 previous owner or operator of the property who would otherwise be liable 34 under this subdivision. Notwithstanding this paragraph, if such person 35 obtained actual knowledge of the discharge at the property when such 36 person owned the property and then subsequently transferred ownership of 37 the property to another person without disclosing such knowledge, such 38 person shall be treated as a person responsible for the discharge and no 39 defense under this paragraph shall be available to such person. Nothing 40 in this paragraph shall affect the liability under this subdivision of a 41 person who, by any act or omission, caused or contributed to such 42 discharge of petroleum. 43 § 28. Subdivision 5 of section 180 of the navigation law, as amended 44 by chapter 35 of the laws of 1985, is amended and a new subdivision 6 is 45 added to read as follows: 46 5. To disburse moneys from the fund for cleanup and removal costs 47 pursuant to a certification of claims by the commissioner[.]; 48 6. To submit on an annual basis to the governor and legislature within 49 sixty days of the end of the state fiscal year an independent audit of 50 the New York environmental protection and spill compensation fund. 51 § 29. Subdivision 4 of section 181 of the navigation law, as amended 52 by chapter 458 of the laws of 1978, is amended and a new subdivision 7 53 is added to read as follows: 54 4. [An] Notwithstanding subdivision one of this section and subdivi- 55 sions one, two, three and four of section one hundred seventy-two-a of 56 this article, an act or omission caused solely by war, sabotage, or   S. 6257 76 A. 9759 1 governmental negligence shall be the only defenses which may be raised 2 by any owner or operator of a major facility or vessel responsible for a 3 discharge in any action arising under the provisions of this article. 4 7. Notwithstanding the foregoing, a person receiving a liability 5 exemption or liability limitation under subdivision one of this section 6 or under subdivision one, two, three or four of section one hundred 7 seventy-two-a of this article shall be deemed to have waived any claim 8 pursuant to subdivision two of this section that such person may have 9 against the New York environmental protection and spill compensation 10 fund. 11 § 30. Section 183 of the navigation law, as added by chapter 845 of 12 the laws of 1977, is amended to read as follows: 13 § 183. Settlements. 1. The administrator shall attempt to promote and 14 arrange a settlement between the claimant and the person responsible for 15 the discharge. If the source of the discharge can be determined and 16 liability is conceded, the claimant and the alleged discharger may agree 17 to a settlement which shall be final and binding upon the parties and 18 which will waive all recourse against the fund. 19 2. After the successful implementation of an order on consent which 20 provides for the cleanup and removal of the discharge, the person 21 subject to the order shall submit to the department a written certif- 22 ication prepared by an individual licensed or otherwise authorized in 23 accordance with article one hundred forty-five of the education law to 24 practice the profession of engineering who shall have been in charge of 25 the implementation of the cleanup and removal activities undertaken 26 pursuant to such order substantiating that, at a minimum, such remedial 27 activities satisfied the remedial requirements set forth in such order. 28 3. Upon the department's receipt of such certification, the department 29 shall review the final engineering report and the data submitted pursu- 30 ant to the order as well as any other relevant information regarding the 31 discharge. The department shall provide the person, upon its satisfac- 32 tion that the remedial requirements for the discharge have been 33 achieved, with a covenant not to sue, binding upon the state, for any 34 liability, including any future liability or claim for the further 35 cleanup or removal of petroleum relating to the discharge that was the 36 subject of such order except that a person responsible for the cleanup 37 and removal of the discharge pursuant to section one hundred eighty-one 38 of this article shall not receive a release for natural resource 39 damages. Additionally, the state nonetheless shall reserve all of its 40 rights concerning, and such covenant shall not extend to, any further 41 investigation or remedial action the department deems necessary, as a 42 result of: 43 (a) a failure to comply with the terms and conditions of the order; 44 (b) a fraudulent demonstration that the cleanup levels identified in 45 the order were reached; 46 (c) a release or threatened release at the site subsequent to the 47 effective date of the order; 48 (d) a change in the site's use subsequent to the effective date of the 49 order to a use requiring a lower level of residual contamination unless 50 additional remedial activities are undertaken which shall meet the stan- 51 dard for protection of public health and the environment that applies to 52 remedial actions for such use under this article; 53 (e) information received, in whole or in part, after the department's 54 execution of such order, which indicates that the cleanup and removal 55 performed, or to be performed, under such order will not be, or is not,   S. 6257 77 A. 9759 1 protective of public health or the environment for such use of the site; 2 or 3 (f) the department determines that the remedy implemented is not 4 protective of public health or the environment. 5 4. The reservation contained in paragraph (d) of subdivision three of 6 this section shall not be reserved in the event a person remediates soil 7 contamination to soil category 1, as that term is described in paragraph 8 a of subdivision three of section 27-1316 of the environmental conserva- 9 tion law. 10 5. The reservation contained in paragraph (f) of subdivision three of 11 this section shall not be reserved for a person who is not responsible 12 for the cleanup and removal of the discharge pursuant to applicable 13 principles of statutory or common law liability, or who is liable solely 14 as a result of ownership or operation of the affected site subsequent to 15 the disposal of hazardous waste or the discharge of petroleum, in the 16 event that such person remediates soil contamination to soil category 1, 17 as that term is described in paragraph a of subdivision three of section 18 27-1316 of the environmental conservation law. 19 6. The covenant not to sue issued pursuant to this section shall 20 extend to the person's successors or assigns through acquisition of 21 title to the site to which the liability release applies and to a person 22 who develops or otherwise occupies the site, provided that such persons 23 act in good faith to adhere to the requirements of such order and work- 24 plan. However, such covenant does not extend, and cannot be transferred, 25 to a person who is responsible as of the date of the issuance of an 26 order on consent for the discharge of petroleum according to section one 27 hundred eighty-one of this article unless that person was party to the 28 order on which such covenant was based. A notice of the order containing 29 such covenant shall be recorded and indexed as a declaration of covenant 30 in the office of the recording officer for the county or counties where 31 such site is located in the manner prescribed by article nine of the 32 real property law within thirty days of signing the order if the person 33 is an owner or within thirty days of acquiring title of the site if the 34 person is a prospective purchaser. 35 7. The provisions of this title shall not affect an action or a claim, 36 including a claim for contribution, that a person who implements or 37 completes an order executed by such person and the department providing 38 for the cleanup and removal of the discharge pursuant to this article 39 has or may have against a third party. 40 8. Nothing in this section shall be construed to affect either the 41 liability of any person with respect to any costs, damages, or investi- 42 gative or remedial activities that are not included in the order; or the 43 department's authority to maintain an action or proceeding against any 44 person who is not subject to the order. 45 9. A person who has settled its liability to the department under this 46 section shall not be liable for claims for contribution regarding 47 matters addressed in the order. Such settlement does not discharge any 48 of the persons responsible under law for the cleanup and removal of the 49 discharge unless its terms so provide, but it reduces the potential 50 liability of the others by the amount of the settlement. 51 10. Nothing in this section shall be construed to affect the authority 52 of the department to reach settlement with other persons consistent with 53 its authority under applicable law. 54 § 31. Subdivisions 24, 25 and 26 of section 1281 of the public 55 authorities law, subdivision 24 as amended by chapter 857 of the laws of 56 1982, subdivision 25 as amended by chapter 295 of the laws of 1994 and   S. 6257 78 A. 9759 1 subdivision 26 as added by chapter 282 of the laws of 1979, are amended 2 to read as follows: 3 24. "Hazardous waste" shall [mean a waste which appears on the list or 4 satisfies the characteristics promulgated by the commissioner of envi- 5 ronmental conservation pursuant to section 27-0903 of the environmental 6 conservation law and until, but not after, the promulgation of such 7 list, a waste or combination of wastes, which because of its quantity, 8 concentration, or physical, chemical or infectious characteristics may: 9 a. Cause, or significantly contribute to an increase in mortality or 10 an increase in serious irreversible or incapacitating reversible 11 illness; or 12 b. Pose a substantial present or potential hazard to human health or 13 the environment when improperly treated, stored, transported, disposed 14 or otherwise managed] have the same meaning as set forth in section 15 27-1301 of the environmental conservation law. 16 25. "Inactive hazardous waste disposal site" shall [mean any area or 17 structure used for the long term storage or final placement of hazardous 18 waste including, but not limited to, dumps, landfills, lagoons and arti- 19 ficial treatment ponds, as to which area or structure no permit or 20 authorization issued by the department of environmental conservation or 21 a federal agency for the disposal of hazardous waste was in effect after 22 the effective date of this title and any inactive area or structure on 23 the National Priorities List established under the authority of 42 24 U.S.C.A. Section 9605] have the same meaning as set forth in section 25 27-1301 of the environmental conservation law. 26 26. "Inactive hazardous waste disposal site remedial program" shall 27 [mean activities undertaken to eliminate, remove, abate, control or 28 monitor health and/or environmental hazards or potential hazards in 29 connection with inactive hazardous waste disposal sites or to treat or 30 dispose of wastes and waste contaminated materials from such sites 31 including, but not limited to, grading, contouring, trenching, grouting, 32 capping, excavation, transporting, incineration, chemical treatment, 33 biological treatment or the construction of leachate collection and 34 treatment facilities] have the same meaning as set forth in section 35 27-1301 of the environmental conservation law. 36 § 32. Section 1389-a of the public health law, as added by chapter 282 37 of the laws of 1979, subdivision 1 as amended by chapter 857 of the laws 38 of 1982 and subdivision 2 as amended by chapter 295 of the laws of 1994, 39 is amended to read as follows: 40 § 1389-a. Definitions. 1. "Hazardous waste" means [a waste which 41 appears on the list or satisfies the characteristics promulgated by the 42 commissioner of environmental conservation pursuant to section 27-0903 43 of the environmental conservation law and until, but not after, the 44 promulgation of such list, or a waste or combination of wastes, which 45 because of its quantity, concentration, or physical, chemical or infec- 46 tious characteristics may: 47 a. Cause, or significantly contribute to an increase in mortality or 48 an increase in serious irreversible or incapacitating reversible 49 illness; or 50 b. Pose a substantial present or potential hazard to human health or 51 the environment when improperly treated, stored, transported, disposed 52 or otherwise managed] hazardous waste as defined in section 27-1301 of 53 the environmental conservation law. 54 2. "Inactive hazardous waste disposal site" means [any area or struc- 55 ture used for the long term storage or final placement of hazardous 56 waste including, but not limited to, dumps, landfills, lagoons and arti-   S. 6257 79 A. 9759 1 ficial treatment ponds, as to which area or structure no permit or 2 authorization issued by the department of environmental conservation or 3 a federal agency for the disposal of hazardous waste was in effect after 4 the effective date of this title and any inactive area or structure on 5 the National Priorities List established under the authority of 42 6 U.S.C.A. Section 9605] an inactive hazardous waste disposal site as that 7 term is defined in section 27-1301 of the environmental conservation 8 law. 9 3. "Inactive hazardous waste disposal site remedial program" means 10 [activities undertaken to eliminate, remove, abate, control or monitor 11 health and/or environmental hazards or potential hazards in connection 12 with inactive hazardous waste disposal sites or to treat or dispose of 13 wastes and waste contaminated materials from such sites including, but 14 not limited to, grading, contouring, trenching, grouting, capping, exca- 15 vation, transporting, incineration, chemical treatment, biological 16 treatment or construction of leachate collection and treatment facili- 17 ties] an inactive hazardous waste disposal site remedial program as that 18 term is defined in section 27-1301 of the environmental conservation 19 law. 20 4. "Person" means an individual, trust, firm, joint stock company, 21 corporation, partnership, association, state, municipality, commission, 22 political subdivision of a state, public benefit corporation or any 23 interstate body. 24 a. Such term includes any person owning or operating an inactive 25 hazardous waste disposal site but does not include a person that is a 26 lender that, without participating in the management of such site, holds 27 indicia of ownership primarily to protect the security interest of the 28 person in such site; nor does it include a person that is a lender that 29 did not participate in management of such site prior to foreclosure, 30 notwithstanding that the person forecloses on such site and after fore- 31 closure, sells, re-leases (in the case of a lease finance transaction), 32 or liquidates such site, maintains business activities, winds up oper- 33 ations, undertakes in a non-negligent manner remedial actions under the 34 direction of the department, with respect to such site, or takes any 35 other measure to preserve, protect, or prepare such site prior to sale 36 or disposition, if the person seeks to sell, re-lease (in the case of a 37 lease finance transaction), or otherwise divest the person of such site 38 at the earliest practicable commercially reasonable time, on commercial- 39 ly reasonable terms, taking into account market conditions and legal and 40 regulatory requirements. For purposes of this paragraph: 41 (i) the term "participate in management" means actually participating 42 in the management or operational affairs of such site; and does not 43 include merely having the capacity to influence, or the unexercised 44 right to control, such site's operations; 45 (ii) a person that is a lender and that holds indicia of ownership 46 primarily to protect a security interest in such site shall be consid- 47 ered to participate in management only if, while the borrower is still 48 in possession of such site, the person exercises decisionmaking control 49 over the environmental compliance related to such site, such that the 50 person has undertaken responsibility for the hazardous waste handling or 51 disposal practices related to such site; or exercises control at a level 52 comparable to that of a manager of such site, such that the person has 53 assumed or manifested responsibility for the overall management of such 54 site encompassing day-to-day decisionmaking with respect to environ- 55 mental compliance; or over all or substantially all of the operational   S. 6257 80 A. 9759 1 functions (as distinguished from financial or administrative functions) 2 of such site other than the function of environmental compliance; 3 (iii) the term "participate in management" does not include performing 4 an act or failing to act prior to the time at which a security interest 5 is created in such site; 6 (iv) the term "participate in management" does not include holding a 7 security interest or abandoning or releasing a security interest; 8 including in the terms of an extension of credit, or in a contract or 9 security agreement relating to the extension, a covenant, warranty, or 10 other term or condition that relates to environmental compliance; moni- 11 toring or enforcing the terms and conditions of the extension or credit 12 or security interest; monitoring or undertaking one or more inspections 13 of such site; requiring a response action or other lawful means of 14 addressing the release or threatened release of a hazardous waste in 15 connection with such site prior to, during, or on the expiration of the 16 term of the extension of credit; providing financial or other advice or 17 counseling in an effort to mitigate, prevent, or cure default or diminu- 18 tion in the value of such site; restructuring, renegotiating, or other- 19 wise agreeing to alter the terms and conditions of the extension of 20 credit or security interest; exercising forbearance; exercising other 21 remedies that may be available under applicable law for the breach of a 22 term or condition of the extension of credit or security agreement; or 23 conducting in a non-negligent manner a remedial action directly or under 24 the direction of the department, if the actions do not rise to the level 25 of participating in management (within the meaning of subparagraphs (i) 26 and (ii) of this paragraph); 27 (v) the term "extension of credit" includes a lease finance trans- 28 action in which the lessor does not initially select such leased site 29 and does not during the lease term control the daily operations or main- 30 tenance of such site; or that conforms with regulations issued by the 31 appropriate federal banking agency (as defined in 12 USC section 1813) 32 or the superintendent of banks or with regulations issued by the 33 National Credit Union Administrative Board, as appropriate; 34 (vi) the term "financial or administrative function" includes a func- 35 tion such as that of a credit manager, accounts payable officer, 36 accounts receivable officer, personal manager, comptroller, or chief 37 financial officer, or a similar function; 38 (vii) the terms "foreclosure" and "foreclose" mean, respectively, 39 acquiring and to acquire, such site through purchase at sale under a 40 judgment or decree, power of sale, or nonjudicial foreclosure sale; a 41 deed in lieu of foreclosure, or similar conveyance from a trustee; or 42 repossession, if such site was security for an extension of credit 43 previously contracted; conveyance pursuant to an extension of credit 44 previously contracted, including the termination of a lease agreement; 45 or any other formal or informal manner by which the person acquires, for 46 subsequent disposition, title to or possession of such site in order to 47 protect the security interest of the person; 48 (viii) the term "lender" means an insured depository institution (as 49 defined in 12 USC section 1813); an insured credit union (as defined in 50 12 USC section 1752); a bank or association chartered under the Farm 51 Credit Act of 1971 (12 U.S.C. 2001 et seq.); a leasing or trust company 52 that is an affiliate of an insured depository institution; any person 53 (including a successor or assignee of any such person) that makes a bona 54 fide extension of credit to or takes or acquires a security interest 55 from a nonaffiliated person; the Federal National Mortgage Association, 56 the Federal Home Loan Mortgage Corporation, the Federal Agricultural   S. 6257 81 A. 9759 1 Mortgage Corporation, or any other entity that in a bona fide manner 2 buys or sells loans or interests in loans; a person that insures or 3 guarantees against a default in the repayment of an extension of credit, 4 or acts as a surety with respect to an extension of credit, to a nonaf- 5 filiated person; and a person that provides title insurance and that 6 acquires such site as a result of assignment or conveyance in the course 7 of underwriting claims and claims settlements; 8 (ix) the term "operational function" includes a function such as that 9 of a facility or plant manager, operations manager, chief operating 10 officer, or chief executive officer; and 11 (x) the term "security interest" includes a right under a mortgage, 12 deed of trust, assignment, judgment lien, pledge, security agreement, 13 factoring agreement, or lease and any other right accruing to a person 14 to secure the repayment of money, the performance of a duty, or any 15 other obligation by a nonaffiliated person. 16 b. Such term includes any person owning or operating an inactive 17 hazardous waste disposal site but does not include the state of New York 18 or a public corporation which acquired, and thereafter retained without 19 participating in the management of such site, ownership or control 20 involuntarily by virtue of its function as sovereign. Neither the state 21 of New York nor any public corporation shall incur under this chapter 22 any liability as to matters within the jurisdiction of the department as 23 a result of actions taken in response to an emergency created by the 24 release or threatened release of hazardous waste by another person, 25 provided that such actions by the state or public corporation did not 26 constitute reckless, willful, wanton or intentional misconduct. As used 27 in this paragraph: 28 (i) "public corporation" means a public corporation as defined in the 29 general construction law; 30 (ii) "involuntary acquisition of ownership or control" includes but is 31 not limited to the following: 32 (A) acquisitions by the state or a public corporation in its capacity 33 as sovereign, including acquisitions pursuant to abandonment 34 proceedings, or escheat, or any other circumstance of involuntary acqui- 35 sition in its capacity as sovereign; 36 (B) acquisitions by the state or a public corporation, or its agent, 37 acting as a conservator or receiver pursuant to a clear and direct stat- 38 utory mandate or regulatory authority; 39 (C) acquisitions of assets through foreclosure and its equivalents, or 40 otherwise, by the state or a public corporation in the course of admin- 41 istering a loan, loan guarantee or loan insurance program; 42 (D) acquisitions by the state or a public corporation pursuant to 43 seizure or forfeiture authority; and 44 (E) acquisitions by the state or a public corporation as the result of 45 tax delinquency purposes, provided, that such ownership or control is 46 not retained primarily for investment purposes. 47 (iii) "management participation" means that the state or public corpo- 48 ration is actually participating in the management or operation of the 49 property but does not include the mere capacity to influence, ability to 50 influence or unexercised right to control the operation of the property. 51 Nothing contained in this paragraph affects the applicability of para- 52 graph a of this subdivision in favor of a holder of a security interest 53 according to the terms thereof. 54 c. Such term includes any person owning or operating an inactive 55 hazardous waste disposal site, including a fiduciary; provided, however, 56 that such liability on the part of a fiduciary shall not exceed the   S. 6257 82 A. 9759 1 assets held in the fiduciary capacity if such person is not liable inde- 2 pendently of such person's ownership as a fiduciary or actions taken in 3 a fiduciary capacity including, but not limited to, the fiduciary negli- 4 gently causing or contributing to the release or threatened release of 5 hazardous waste at such site. 6 (i) For purposes of this paragraph: 7 (A) the term, "fiduciary," means a person acting for the benefit of 8 another party as a bona fide trustee; executor; administrator; custo- 9 dian; guardian of estates or guardian ad litem; receiver; conservator; 10 committee of estates of incapacitated persons; personal representative; 11 trustee (including a successor to a trustee) under an indenture agree- 12 ment, trust agreement, lease, or similar financing agreement, for debt 13 securities, certificates of interest or certificates of participation in 14 debt securities, or other forms of indebtedness as to which the trustee 15 is not, in the capacity of trustee, the lender; or representative in any 16 other capacity that the department, after providing public notice, 17 determines to be similar to the various capacities previously described 18 in this paragraph; and does not include either a person that is acting 19 as a fiduciary with respect to a trust or other fiduciary estate that 20 was organized for the primary purpose of, or is engaged in, actively 21 carrying on a trade or business for profit unless the trust or other 22 fiduciary estate was created as part of, or to facilitate, one or more 23 estate plans or because of the incapacity of a natural person or a 24 person that acquires ownership or control of a property with the objec- 25 tive purpose of avoiding liability of the person or any other person. 26 (B) the term, "fiduciary capacity," means the capacity of a person in 27 holding title to a property, or otherwise having control of or an inter- 28 est in a property, pursuant to the exercise of the responsibilities of 29 the person as a fiduciary. 30 (ii) Nothing in this paragraph affects the rights or immunities or 31 other defenses that are available under law that is applicable to a 32 person subject to this subdivision; or creates any liability for a 33 person or a private right of action against a fiduciary or any other 34 person. 35 (iii) Nothing in this paragraph applies to a person if that person 36 acts in a capacity other than that of a fiduciary or in a beneficiary 37 capacity and in that capacity, directly or indirectly benefits from a 38 trust or fiduciary relationship; or is a beneficiary and a fiduciary 39 with respect to the same fiduciary estate and as a fiduciary, receives 40 benefits that exceed customary or reasonable compensation, and inci- 41 dental benefits, permitted under other applicable law. 42 d. Such term includes any person owning or operating an inactive 43 hazardous waste disposal site, including an industrial development agen- 44 cy created under the general municipal law, other than one that holds 45 bare legal title to such site; has not participated with any party 46 responsible under law for the remediation of contamination in, on, or 47 from such site to attempt to have such a party avoid its remedial 48 liability; has not exercised any contractual rights it may have or had, 49 if any, under the lease, guarantee, or any other financing agreement 50 pursuant to which the industrial development agency would assume control 51 over the actual operation of the site; and has not taken possession or 52 control of the site. Nothing in this paragraph affects the rights or 53 immunities or other defenses that are available under law that are 54 applicable to an industrial development agency; or creates any liability 55 for a person or a private right of action against an industrial develop- 56 ment agency or any other person.   S. 6257 83 A. 9759 1 5. "Waste" means [any garbage, refuse, sludge from a waste treatment 2 plant, water supply treatment plant, or air pollution control facility, 3 and other discarded material, whether or not such material may eventual- 4 ly be used for some other purpose, including solid, liquid, semisolid, 5 or contained gaseous material resulting from industrial, commercial, 6 mining and agricultural operations or from community activities, and 7 source, special nuclear or by-product material as defined in the Atomic 8 Energy Act of 1954, as amended, except as may be provided by existing 9 agreements between the state of New York and the government of the 10 United States, but does not include solid or dissolved material in 11 domestic sewage, or solid or dissolved materials in irrigation return 12 flows or industrial discharges which are point sources subject to 13 permits under article seventeen of the environmental conservation law] 14 waste as that term is defined in section 27-1301 of the environmental 15 conservation law. 16 § 33. Subdivision 4 of section 1389-b of the public health law, as 17 added by chapter 282 of the laws of 1979, is amended to read as follows: 18 4. (a) Any order issued pursuant to subdivision three of this section, 19 other than one issued on consent of the person, shall be issued only 20 after notice and the opportunity for hearing is provided to the persons 21 who may be the subject of such order. The commissioner shall determine 22 which persons are responsible pursuant to said subdivision according to 23 applicable principles of statutory or common law liability. Such persons 24 shall be entitled to raise any statutory or common law defenses at any 25 such hearing and such defenses shall have the same force and effect at 26 such hearings as they would have in a court of law. In the event a hear- 27 ing is held, no order shall be issued by the commissioner under subdivi- 28 sion three of this section until a final decision has been rendered. Any 29 such order shall be reviewable pursuant to article seventy-eight of the 30 civil practice law and rules within thirty days after service of said 31 order. The commissioner may request the participation of the attorney 32 general in such hearings. 33 (b) There shall be no liability under this section for a person other- 34 wise liable who can establish by a preponderance of the evidence that 35 the significant threat to the environment attributable to hazardous 36 waste disposed at an inactive hazardous waste disposal site was caused 37 solely by an act of God; an act of war; or an act or omission of a third 38 party other than an employee or agent of such person, or than one whose 39 act or omission occurs in connection with a contractual relationship, 40 existing directly or indirectly, with such person (except where the sole 41 contractual arrangement arises from a published tariff and acceptance 42 for carriage by a common carrier or rail), if such person establishes by 43 a preponderance of the evidence that such person exercised due care with 44 respect to the hazardous waste concerned, taking into consideration the 45 characteristics of such hazardous waste, in light of all relevant facts 46 and circumstances and took precautions against foreseeable acts or omis- 47 sions of any such third party and the consequences that could foresee- 48 ably result from such acts or omissions; or any combination of them. For 49 purposes of this paragraph, the term, "contractual relationship," 50 includes, but is not limited to, land contracts, deeds or other instru- 51 ments transferring title or possession, unless the real property on 52 which the site concerned is located was acquired by such person after 53 the disposal or placement of the hazardous waste on, in, or at such 54 site, and such person establishes one or more of the circumstances 55 described in subparagraph (i), (ii) or (iii) of this paragraph by a 56 preponderance of the evidence:   S. 6257 84 A. 9759 1 (i) At the time such person acquired the site such person did not know 2 and had no reason to know that any hazardous waste which is the subject 3 of the significant threat determination was disposed of on, in, or at 4 the site. To establish that such person has no reason to know, such 5 person must have undertaken, at the time of acquisition, all appropriate 6 inquiry into the previous ownership and uses of such site consistent 7 with good commercial or customary practice in an effort to minimize 8 liability. For purposes of the preceding sentence, the commissioner 9 shall take into account any specialized knowledge or experience on the 10 part of such person, the relationship of the purchase price to the value 11 of the property if uncontaminated, commonly known or reasonably ascer- 12 tainable information about the property, the obviousness of the presence 13 or likely presence of contamination at the property, and the ability to 14 detect such contamination by appropriate inspection; or 15 (ii) Such person is a government entity which acquired the site by 16 escheat, or through any other involuntary transfer or acquisition; or 17 (iii) Such person acquired the site by inheritance or bequest, and 18 that such person exercised due care with respect to the hazardous waste 19 concerned, taking into consideration the characteristics of such hazard- 20 ous waste, in light of all relevant facts and circumstances and took 21 precautions against foreseeable acts or omissions of any such third 22 party and the consequences that could foreseeably result from such acts 23 or omissions. 24 § 34. Section 1389-e of the public health law is REPEALED. 25 § 35. Section 316-b of the real property law is amended by adding a 26 new subdivision 3 to read as follows: 27 3. Each recording officer shall record and index such instruments as 28 may be required to be recorded pursuant to title thirteen or fourteen of 29 article twenty-seven of the environmental conservation law, or title 30 five of article fifty-six of the environmental conservation law, or part 31 two of article twelve of the navigation law, or any regulation promul- 32 gated pursuant thereto, or any order or agreement entered into under 33 authority thereof or of any such regulations. 34 § 36. Subdivisions 1, 2, 3, 6, paragraph (a) of subdivision 12, subdi- 35 visions 13, 14 and 15 of section 97-b of the state finance law, subdivi- 36 sions 1, 2 and paragraph (f) of subdivision 3 as amended and paragraph 37 (g) of subdivision 3 as added by chapter 413 of the laws of 1996, para- 38 graph (e) of subdivision 3 as amended by chapter 9 of the laws of 1994, 39 subdivision 6 as amended by chapter 38 of the laws of 1985, paragraph 40 (a) of subdivision 12 as amended by section 13 of part C of chapter 389 41 of the laws of 1997 and subdivision 3 as amended and subdivisions 13, 14 42 and 15 as added by chapter 512 of the laws of 1986, are amended and 43 three new subdivisions 15, 16 and 17 are added to read as follows: 44 1. There is hereby established in the custody of the state comptroller 45 a nonlapsing revolving fund to be known as the "hazardous waste remedial 46 fund" which shall consist of a "site investigation and construction 47 account" [and], an "industry fee transfer account," [and] an "environ- 48 mental restoration project account," and a "hazardous waste cleanup 49 account". 50 2. Such fund shall consist of all of the following: 51 (a) all moneys [appropriated for transfer] transferred to the fund's 52 site investigation and construction account; (b) all fines and other 53 sums accumulated in the fund prior to April first, nineteen hundred 54 eighty-eight pursuant to section 71-2725 of the environmental conserva- 55 tion law for deposit in the fund's site investigation and construction 56 account; (c) [all moneys collected or received by the department of   S. 6257 85 A. 9759 1 taxation and finance pursuant to section 27-0923 of the environmental 2 conservation law for deposit in the fund's industry fee transfer 3 account; (d) all moneys paid into the fund pursuant to section 72-0201 4 of the environmental conservation law which shall be deposited in the 5 fund's industry fee transfer account; (e)] all moneys paid into the fund 6 pursuant to section one hundred eighty-six of the navigation law which 7 shall be deposited in the fund's industry fee transfer account; [(f)] 8 (d) all moneys paid into the fund by municipalities for repayment of 9 landfill closure loans made pursuant to former title five of article 10 fifty-two of the environmental conservation law for deposit in the 11 fund's site investigation and construction account; [(g)] (e) all monies 12 recovered under section 56-0507 of the environmental conservation law 13 into the fund's environmental restoration project account; [and (h)] (f) 14 all monies transferred from the remedial program transfer fund, created 15 pursuant to subdivision five of section ninety-seven-yyy of this chap- 16 ter, to the fund's hazardous waste cleanup account; and (g) other moneys 17 credited or transferred thereto from any other fund or source for depos- 18 it in the fund's site investigation and construction account. 19 3. Moneys of the hazardous waste remedial fund except monies in the 20 industry fee transfer account, when allocated, shall be available to 21 [the department of environmental conservation] all state departments and 22 agencies for the following purposes: 23 (a) inactive hazardous waste disposal site remedial programs pursuant 24 to section 27-1313 of the environmental conservation law and section 25 thirteen hundred eighty-nine-b of the public health law; 26 (b) cleaning up or restoring to its original state any area where 27 hazardous wastes were disposed of or possessed unlawfully in violation 28 of article twenty-seven of the environmental conservation law. For the 29 purposes of this section "the original state of the area" shall mean the 30 reasonably ascertainable condition of the property immediately prior to 31 the unlawful disposal or, if it is impracticable to determine such 32 condition, then it is the reasonable environmentally sound condition of 33 the area; 34 (c) inactive hazardous waste site identification, classification and 35 investigation actions including testing, analyses, record searches and 36 other expenditures necessary to develop the state inactive hazardous 37 waste disposal site remedial plan required pursuant to section 27-1305 38 of the environmental conservation law; 39 (d) financing the non-federal share of the cost of clean up, and site 40 remediation activities as well as post-closure operation and maintenance 41 costs, pursuant to the federal Comprehensive Environmental Response, 42 Compensation and Liability Act of 1980; 43 (e) emergency response action to clean up spills or abate other public 44 health or environmental hazards involving hazardous wastes except those 45 provided for under the New York state environmental protection and spill 46 compensation fund; 47 (f) [the study of hazardous substance waste disposal sites pursuant to 48 section 27-1316 of the environmental conservation law and section one 49 thousand three hundred eighty-nine-e of the public health law; and 50 (g)] to undertake such remedial measures as the department of environ- 51 mental conservation may determine necessary due to environmental condi- 52 tions related to the property subject to an agreement to provide state 53 assistance under title five of article fifty-six of the environmental 54 conservation law that were unknown to such department at the time of its 55 approval of such agreement which indicates that conditions on such prop- 56 erty are not sufficiently protective of human health for its reasonably   S. 6257 86 A. 9759 1 anticipated uses or due to information received, in whole or in part, 2 after such department's approval of such agreement's final engineering 3 report and certification, which indicates that such agreement's remedial 4 activities are not sufficiently protective of human health for such 5 property's reasonably anticipated uses; and, respecting the monies in 6 the environmental restoration project account in excess of ten million 7 dollars, shall provide state assistance under title five of article 8 fifty-six of the environmental conservation law; 9 (g) with respect to moneys in the hazardous waste cleanup account, to 10 pay the reasonable costs incurred by the state in negotiating and over- 11 seeing implementation of voluntary agreements and conducting remediation 12 under title fourteen of article twenty-seven of the environmental 13 conservation law; 14 (h) with respect to moneys in the hazardous waste cleanup account, to 15 provide state assistance pursuant to section nine hundred seventy-r of 16 the general municipal law. 17 6. The commissioner of the department of environmental conservation 18 shall make all reasonable efforts to recover the full amount of any 19 funds expended from the fund pursuant to paragraph (a) of subdivision 20 three of this section through litigation or cooperative agreements with 21 responsible persons. Any and all moneys recovered or reimbursed pursuant 22 to this section through voluntary agreements or court orders shall be 23 deposited with the comptroller and credited to the account of such fund 24 from which such expenditures were made; provided, however, that any 25 moneys recovered or reimbursed for funds expended from the hazardous 26 waste cleanup account shall be deposited in the remedial program trans- 27 fer fund. 28 (a) The comptroller shall, on July first, nineteen hundred eighty- 29 eight and on each succeeding July first until such time as the 30 surcharges required pursuant to subdivision [fourteen] thirteen of this 31 section are imposed, estimate the amount of revenues to be received by 32 the industry fee transfer account of this fund in the next succeeding 33 twenty months and the transfers which will be required to be made during 34 the same period. When calculating the estimate of industry fee transfer 35 account revenues available for the purpose of certifying, pursuant to 36 this subdivision, when such account's balance will be insufficient to 37 make the transfer required by subdivision eleven of this section, the 38 comptroller shall add to the amount estimated to actually be available 39 an additional credit factor as determined by paragraph (b) of this 40 subdivision. If the comptroller determines that the industry fee trans- 41 fer account will, at any time during the succeeding twenty month period, 42 lack sufficient funds to make the transfer required by subdivision elev- 43 en of this section, the comptroller shall so certify to the [state super 44 fund management board, created pursuant to section 27-1319 of the envi- 45 ronmental conservation law, and to the] governor and the legislature. 46 13. [Upon the receipt of a certification provided pursuant to subdivi- 47 sion twelve of this section, the state superfund management board shall 48 review and analyze the historical pattern of revenue received by the 49 industry fee transfer account and the long term projection of future 50 transfers from such account, and shall report on or before December 51 first of such year to the governor and the legislature its recommenda- 52 tions, if any, as to the sources of additional revenues which could be 53 used to supplement the revenues to be received by such fund in order to 54 achieve the equal sharing of debt service costs as implemented in subdi- 55 vision nine of this section.   S. 6257 87 A. 9759 1 14.] In the absence of further direction by law, effective April first 2 of the fiscal year immediately following the certification by the comp- 3 troller made pursuant to subdivision twelve of this section, surcharges 4 in the following amount shall be imposed: (a) twenty-five percent of the 5 fees imposed by sections 72-0402 and 72-0502 of the environmental 6 conservation law. Notwithstanding any other provision of law to the 7 contrary, moneys collected from such surcharge shall be deposited in 8 their entirety to the industry fee transfer account established pursuant 9 to subdivision one of this section; (b) fifty percent of the fees 10 imposed by section 27-0923 of the environmental conservation law, except 11 for those fees contained in paragraphs b and c of subdivision one, and 12 paragraph b of subdivision two of such section, which shall be exempt 13 from such surcharge. Moneys collected from such surcharge shall be 14 deposited to the industry fee transfer account established pursuant to 15 subdivision one of this section. 16 [15.] 14. On and after the date of such certification, the comptroller 17 shall maintain records with respect to such account to reflect each 18 unpaid transfer for the period during which it is unpaid. On and after 19 such date, any deposits in the industry fee transfer account shall be 20 immediately transferred to the general fund of the state until an amount 21 equal to the total of any unpaid transfers and accumulated interest 22 shall have been transferred to the general fund. 23 15. The comptroller shall, on the first day of July succeeding the 24 state fiscal year during which the bonds and notes issued under the 25 environmental quality bond act of nineteen hundred eighty-six to finance 26 the cleanup of inactive hazardous waste disposal sites in aggregate 27 exceed ninety-five percent of the amount authorized pursuant to such 28 bond act, estimate the total debt service of such bonds and notes. The 29 comptroller shall also estimate the state fiscal year in which the sum 30 of the transfers required by subdivision eleven of this section and the 31 additional credit factor as determined by paragraph (b) of subdivision 32 twelve of this section exceeds fifty percent of the estimated debt 33 service for such bonds and notes. The comptroller shall certify to the 34 governor and the legislature the estimated state fiscal year when fifty 35 percent of such estimated debt service will be exceeded. 36 16. Notwithstanding any law to the contrary, effective April first of 37 the state fiscal year succeeding the state fiscal year certified in 38 subdivision fifteen of this section, all moneys currently deposited in 39 the industry fee transfer account of the hazardous waste remedial fund 40 pursuant to subdivision two of this section shall be deposited in the 41 remedial program transfer fund. Further, effective April first of the 42 state fiscal year following such certification, subdivisions thirteen 43 and fourteen of this section shall be deemed repealed. 44 17. Notwithstanding any law to the contrary, and in accordance with 45 section four of this chapter, the comptroller is hereby authorized and 46 directed, upon the request of the director of the budget, to transfer 47 moneys from the site investigation and construction account of the 48 hazardous waste remedial fund to the hazardous waste cleanup account of 49 the hazardous waste remedial fund. 50 § 37. The state finance law is amended by adding a new section 97-yyy 51 to read as follows: 52 § 97-yyy. Remedial program transfer fund. 1. There is hereby estab- 53 lished in the joint custody of the comptroller and the commissioner of 54 taxation and finance a special fund to be known as the "remedial program 55 transfer fund". 56 2. Such fund shall consist of all of the following:   S. 6257 88 A. 9759 1 (a) registration fees collected pursuant to subdivision two of section 2 17-1009 of the environmental conservation law for deposit in this fund; 3 (b) all license fees, fines and penalties collected pursuant to para- 4 graph (b) of subdivision one and paragraph (a) of subdivision four of 5 section one hundred seventy-four of the navigation law, penalties 6 collected pursuant to paragraphs (b) and (c) of subdivision four of 7 section one hundred seventy-four-a of the navigation law, moneys 8 collected pursuant to section one hundred eighty-seven of the navigation 9 law, and all penalties collected pursuant to section one hundred nine- 10 ty-two of the navigation law; 11 (c) all penalties collected pursuant to paragraph (c) of subdivision 12 one and paragraph (b) of subdivision four of section one hundred seven- 13 ty-four of the navigation law effective April first of the state fiscal 14 year succeeding the state fiscal year certified in subdivision fifteen 15 of section ninety-seven-b of this article; 16 (d) moneys recovered pursuant to subdivision six of section ninety- 17 seven-b of this article for deposit in this fund; 18 (e) all fees paid into the fund pursuant to paragraph b of subdivision 19 one of section 72-0201 of the environmental conservation law; 20 (f) all moneys collected or received by the department of taxation and 21 finance pursuant to section 27-0923 of the environmental conservation 22 law; 23 (g) all moneys paid into the fund pursuant to subdivision sixteen of 24 section ninety-seven-b of this article; 25 (h) all fees paid into the fund pursuant to section 72-0403 of the 26 environmental conservation law; 27 (i) all moneys paid into the fund pursuant to section 27-1415 of the 28 environmental conservation law; 29 (j) other moneys credited or transferred thereto from any other fund 30 or source for deposit in the fund; 31 (k) all interest accrued on any such moneys deposited into the fund; 32 and 33 (l) all moneys paid pursuant to subdivision ten of section 27-1313 of 34 the environmental conservation law and subdivision one of section one 35 hundred eighty-one of the navigation law. 36 3. Notwithstanding any law to the contrary, and in accordance with 37 section four of this chapter, the comptroller is hereby authorized and 38 directed, upon the request of the director of the budget, for each state 39 fiscal year to transfer from the general fund to this fund up to an 40 amount equivalent to the projected amount of moneys to be deposited or 41 transferred into this fund pursuant to paragraphs (a), (b), (c), (d), 42 (e), (f), (g), (h), (i) and (l) of subdivision two of this section for 43 each such state fiscal year. 44 4. Revenues in the remedial program transfer fund shall be kept sepa- 45 rate and shall not be commingled with any other moneys in the custody of 46 the comptroller. All deposits of such revenues shall, if required by the 47 comptroller, be secured by obligations of the United States or of the 48 state having a market value equal at all times to the amount of such 49 deposits and all banks and trust companies are authorized to give secu- 50 rity for such deposits. Any such revenues in such fund may, upon the 51 discretion of the comptroller, be invested in obligations in which the 52 comptroller is authorized to invest pursuant to section ninety-eight of 53 this article. 54 5. Notwithstanding any law to the contrary, and in accordance with 55 section four of this chapter, the comptroller is hereby authorized and 56 directed, upon the request of the director of the budget, to transfer   S. 6257 89 A. 9759 1 moneys deposited in the remedial program transfer fund, and interest 2 accrued thereon, to the environmental protection and oil spill compen- 3 sation fund or to the hazardous waste cleanup account of the hazardous 4 waste remedial fund. 5 § 38. Paragraph (a) of subdivision 2 of section 179 of the navigation 6 law, as amended by chapter 83 of the laws of 1995, is amended and a new 7 subdivision 3 is added to read as follows: 8 (a) An account which shall be credited with all license fees and 9 penalties collected pursuant to paragraph (b) of subdivision one and 10 paragraph (a) of subdivision four of section one hundred seventy-four of 11 this article, penalties collected pursuant to paragraph (b) of subdivi- 12 sion four of section one hundred seventy-four-a of this article, money 13 collected pursuant to section one hundred eighty-seven of this article, 14 all penalties collected pursuant to section one hundred ninety-two of 15 this article, all moneys transferred from the remedial program transfer 16 fund pursuant to subdivision five of section ninety-seven-yyy of the 17 state finance law for deposit in the New York environmental protection 18 and spill compensation fund and registration fees collected pursuant to 19 subdivision two of section 17-1009 of the environmental conservation 20 law. 21 3. Notwithstanding any general or special law to the contrary, all 22 monies collected pursuant to paragraph (b) of subdivision one and para- 23 graph (a) of subdivision four of section one hundred seventy-four of 24 this article, penalties collected pursuant to paragraph (c) of subdivi- 25 sion one and paragraph (b) of subdivision four of section one hundred 26 seventy-four of this article effective April first of the state fiscal 27 year succeeding the state fiscal year certified in subdivision fifteen 28 of section ninety-seven-b of the state finance law, penalties collected 29 pursuant to paragraphs (b) and (c) of subdivision four of section one 30 hundred seventy-four-a of this article, money collected pursuant to 31 section one hundred eighty-seven of this article, all penalties 32 collected pursuant to section one hundred ninety-two of this article, 33 and registration fees collected pursuant to subdivision two of section 34 17-1009 of the environmental conservation law shall be deposited in the 35 remedial program transfer fund in the fiscal year beginning April first, 36 two thousand two, and for each fiscal year thereafter. 37 § 39. Subdivision 2 of section 17-1009 of the environmental conserva- 38 tion law, as amended by chapter 442 of the laws of 2001, is amended to 39 read as follows: 40 2. All owners shall register the facility with the department. The 41 department is authorized to assess a fee according to a schedule based 42 on the size and type of facility, not to exceed [two hundred fifty] five 43 hundred dollars per facility. Such fee shall be paid at the time of 44 registration or registration renewal. Registration shall be renewed 45 every five years or whenever title to a facility is transferred, which- 46 ever occurs first. In addition to such registration requirements and 47 pursuant to leak detection requirements set forth in section 17-1005 of 48 this title, notwithstanding any other provision of law, rule or regu- 49 lation, the department shall duly notify the facility owner of the 50 requirement for such owner to perform the required tightness test on a 51 petroleum bulk storage tank no less than forty-five days prior to the 52 date of the test expiration on the tank. All fees collected pursuant to 53 this subdivision shall be deposited in the New York environmental and 54 spill compensation fund established pursuant to section one hundred 55 seventy-nine of the navigation law[.]; provided, however, that such fees 56 shall be deposited in the remedial program transfer fund in the fiscal   S. 6257 90 A. 9759 1 year beginning April first, two thousand two, and for each fiscal year 2 thereafter. The owner must submit with each application for registra- 3 tion or registration renewal, a five-year fee as follows: 4 Combined Storage Capacity at Facility 5-Year Fee 5 Greater than 1,000 to 2,000 gallons $100 per facility 6 Greater than 2,000 gallons to $300 per facility 7 Less than 5,000 gallons 8 5,000 gallons to less than 400,000 gallons $500 per facility 9 § 40. Subdivision 3 of section 362 of chapter 83 of the laws of 1995 10 amending the state finance law and other laws relating to bonds, notes 11 and revenues, as amended by section 2 of part E of chapter 413 of the 12 laws of 1999, is amended to read as follows: 13 3. Sections fifteen through seventeen of this act shall take effect 14 immediately and shall be deemed to have been in full force and effect on 15 and after April 1, 1995[, and shall expire and be deemed repealed April 16 1, 2004]; 17 § 41. Paragraph b of subdivision 1 of section 71-2725 of the environ- 18 mental conservation law, as amended by chapter 60 of the laws of 1993, 19 is amended to read as follows: 20 b. All penalties and fines collected pursuant to sections 71-2705, 21 71-2721 and 71-2723 of this title shall be paid [into the general fund 22 to the credit of the state purposes account] to the credit of the reme- 23 dial program transfer fund established by section ninety-seven-yyy of 24 the state finance law. 25 § 42. Paragraph b of subdivision 1, subdivision 9 and paragraph a of 26 subdivision 11 of section 72-0201 of the environmental conservation law, 27 paragraph b of subdivision 1 as amended and subdivision 9 as added by 28 chapter 38 of the laws of 1985 and paragraph a of subdivision 11 as 29 amended by section 24 of part A of chapter 58 of the laws of 1998, are 30 amended and subdivision 1 is amended by adding a new paragraph e to read 31 as follows: 32 b. Notwithstanding any general or special law to the contrary, one- 33 half of all monies collected by the department pursuant to section 34 72-0402 and section 72-0502 of this article shall be deposited in the 35 [hazardous waste] remedial program transfer fund, created pursuant to 36 section [ninety-seven-b] ninety-seven-yyy of the state finance law. 37 e. Notwithstanding any general or special law to the contrary, all 38 monies collected by the department pursuant to section 72-0403 of this 39 article shall be deposited in the remedial program transfer fund estab- 40 lished pursuant to section ninety-seven-yyy of the state finance law. 41 9. a. In the event a penalty or interest is collected pursuant to 42 subdivision five or six of this section for fees due under section 43 72-0402, or section 72-0502 of this article, one-half of the penalty or 44 interest shall be deposited by the department in the [hazardous waste] 45 remedial program transfer fund. 46 b. In the event a penalty or interest is collected pursuant to subdi- 47 vision five or six of this section for fees due under section 72-0403 of 48 this article, such penalty or interest shall be deposited in the remedi- 49 al program transfer fund. 50 a. All fees collected pursuant to this article [except fees collected 51 pursuant to paragraphs b, c and d of subdivision one of this section] 52 shall be paid into the environmental conservation special revenue fund 53 to the credit of the environmental regulatory account, unless herein 54 provided otherwise. 55 § 43. Section 72-0202 of the environmental conservation law is amended 56 by adding a new subdivision 4 to read as follows:   S. 6257 91 A. 9759 1 4. Bills issued for the hazardous waste generator remedial program 2 surcharge due for the state fiscal year beginning April first, two thou- 3 sand two shall cover the period April first, two thousand two through 4 December thirty-first, two thousand two. The surcharge for the period 5 April first, two thousand two through December thirty-first, two thou- 6 sand two shall be equal to three-quarters of the amount calculated in 7 the manner prescribed by section 72-0403 of this article. Hazardous 8 waste generator remedial program surcharges for periods beginning after 9 December thirty-first, two thousand two shall be calculated based upon 10 the calendar year. 11 § 44. The environmental conservation law is amended by adding a new 12 section 72-0403 to read as follows: 13 § 72-0403. Remedial program surcharges. 14 1. All generators shall submit annually to the department a fee in the 15 amount to be determined as follows: 16 a. Four thousand dollars for generators of equal to or greater than 17 fifteen tons per year and less than or equal to twenty-five tons per 18 year of hazardous waste; 19 b. Nine thousand dollars for generators of greater than twenty-five 20 tons per year and less than or equal to fifty tons per year of hazardous 21 waste; 22 c. Fourteen thousand dollars for generators of greater than fifty tons 23 per year and less than or equal to seventy-five tons per year of hazard- 24 ous waste; 25 d. Nineteen thousand dollars for generators of greater than seventy- 26 five tons per year and less than or equal to one hundred tons per year 27 of hazardous waste; 28 e. Twenty-four thousand dollars for generators of greater than one 29 hundred tons per year and less than or equal to five hundred tons per 30 year of hazardous waste; 31 f. Eighty thousand dollars for generators of greater than five hundred 32 tons per year and less than or equal to one thousand tons per year of 33 hazardous waste; 34 g. Eighty-five thousand dollars for generators of greater than one 35 thousand tons per year and less than or equal to two thousand tons per 36 year of hazardous waste; 37 h. One hundred ten thousand dollars for generators of greater than two 38 thousand tons per year and less than or equal to three thousand tons per 39 year of hazardous waste; 40 i. One hundred thirty-five thousand dollars for generators of greater 41 than three thousand tons per year and less than or equal to five thou- 42 sand tons per year of hazardous waste; 43 j. One hundred sixty thousand dollars for generators of greater than 44 five thousand tons per year and less than or equal to ten thousand tons 45 per year of hazardous waste; 46 k. Three hundred sixty thousand dollars for generators of greater than 47 ten thousand tons per year of hazardous waste; 48 l. Six thousand dollars for generators of equal to or greater than 49 fifteen tons per year of hazardous wastewater, payable in addition to 50 the fees for hazardous wastes, other than wastewater, as required by 51 this subdivision. 52 2. No fee shall be payable for waste resulting from services which are 53 provided: 54 a. under a contract with the department, or with the department's 55 approval and in compliance with department regulations, or pursuant to 56 an order of the department, the United States environmental protection   S. 6257 92 A. 9759 1 agency or a court, related to the cleanup or remediation of a hazardous 2 materials or hazardous waste spill, discharge, or surficial cleanup, 3 pursuant to this chapter, other than section 27-1313 of this chapter or 4 a removal action pursuant to the Comprehensive Environmental Response, 5 Compensation and Liability Act (42 U.S.C. 9601 et seq.); or 6 b. under a contract for, or with the department's approval and in 7 compliance with department regulations for, the cleanup and removal of a 8 petroleum spill or discharge, pursuant to subdivision seven of section 9 one hundred seventy-six of the navigation law; or 10 c. under the order of a court, the department or the department of 11 health, or the United States environmental protection agency related to 12 an inactive hazardous waste disposal site pursuant to section 27-1313 of 13 this chapter, section thirteen hundred eighty-nine-b of the public 14 health law, or the Comprehensive Environmental Response, Compensation 15 and Liability Act (42 U.S.C. 9601 et seq.); or 16 d. voluntarily and without expectation of monetary compensation in 17 accordance with subdivision one of section 27-1321 of this chapter; or 18 e. under permit or order requiring corrective action pursuant to title 19 nine of article twenty-seven of this chapter or the Resource Conserva- 20 tion and Recovery Act (42 U.S.C. 6901 et seq.). 21 § 45. Paragraph b of subdivision 4 of section 27-0923 of the environ- 22 mental conservation law, as added by chapter 38 of the laws of 1985, is 23 amended to read as follows: 24 b. All moneys collected or received by the department of taxation and 25 finance pursuant to this section shall be deposited daily to the credit 26 of the comptroller with such responsible banks, banking houses or trust 27 companies as may be designated by the comptroller. Such deposits shall 28 be kept separate and apart from all other moneys in the possession of 29 the comptroller. The comptroller shall require adequate security from 30 all such depositories. Of the revenues collected under this section, the 31 comptroller shall retain in his hands such amounts as the commissioner 32 of taxation and finance may determine to be necessary for refunds under 33 this section and the comptroller shall pay any refunds to which those 34 liable for special assessments shall be entitled under the provisions of 35 this section. The comptroller, after reserving the amount to pay such 36 refunds, shall, on or before the tenth day of each month, pay all 37 special assessments, interest and penalties collected under this section 38 and remaining to his credit in such banks, banking houses or trust 39 companies at the close of business on the last day of the preceding 40 month into the [hazardous waste] remedial program transfer fund created 41 pursuant to section [ninety-seven-b] ninety-seven-yyy of the state 42 finance law. Within thirty days after each quarterly reporting date, the 43 comptroller shall certify the amount of special assessments under this 44 section deposited in the [hazardous waste] remedial program transfer 45 fund during the preceding quarter and the cumulative amount collected 46 since the start of the current calendar year, and shall submit such 47 certification to the governor and the chairman of the senate finance 48 committee and the chairman of the assembly ways and means committee. 49 § 46. The tax law is amended by adding a new section 21 to read as 50 follows: 51 § 21. Brownfield redevelopment tax credit. (a) Allowance of credit. 52 (1) General. A taxpayer subject to tax under article nine, nine-A, twen- 53 ty-two, thirty-two or thirty-three of this chapter shall be allowed a 54 credit against such tax, pursuant to the provisions referenced in subdi- 55 vision (e) of this section. Such credit shall be allowed with respect 56 to a qualified site, as such term is defined in paragraph one of subdi-   S. 6257 93 A. 9759 1 vision (b) of this section. The amount of the credit shall be the sum of 2 the credit components specified in paragraphs two and three of this 3 subdivision. 4 (2) Site preparation credit component. The site preparation credit 5 component shall be equal to the applicable percentage of the site prepa- 6 ration costs paid or incurred by the taxpayer with respect to a quali- 7 fied site. The credit component amount so determined with respect to a 8 site's qualification for a remediation certificate shall be allowed for 9 the taxable year in which the effective date of the remediation certif- 10 icate occurs. The credit component amount determined other than with 11 respect to such qualification shall be allowed for the taxable year in 12 which the improvement to which the applicable costs apply is placed in 13 service. 14 (3) Tangible property credit component. The tangible property credit 15 component shall be equal to the applicable percentage of the cost or 16 other basis for federal income tax purposes of tangible personal proper- 17 ty and other tangible property, including buildings and structural 18 components of buildings, which constitute qualified tangible property. 19 The credit component amount so determined shall be allowed for the taxa- 20 ble year in which such qualified tangible property is placed in service 21 on a qualified site with respect to which a remediation certificate has 22 been issued to the taxpayer. The tangible property credit component 23 shall be allowed with respect to property leased to a second party only 24 if such second party is either (i) not a party responsible for the 25 disposal of hazardous waste or the discharge of petroleum at the site 26 according to applicable principles of statutory or common law liability, 27 or (ii) a party responsible according to applicable principles of statu- 28 tory or common law liability if such party's liability arises solely 29 from operation of the site subsequent to the disposal of hazardous waste 30 or the discharge of petroleum, and is so certified by the commissioner 31 of environmental conservation at the request of the taxpayer, pursuant 32 to section 27-1413 of the environmental conservation law. Notwithstand- 33 ing any other provision of law to the contrary, in the case of allowance 34 of credit under this section to such a lessor, the commissioner shall 35 have the authority to reveal to such lessor any information, with 36 respect to the issue of qualified use of property by the lessee, which 37 is the basis for the denial in whole or in part, or for the recapture, 38 of the credit claimed by such lessor. 39 (4) Applicable percentage. For purposes of paragraphs two and three 40 of this subdivision, the applicable percentage shall be ten percent in 41 the case of credits claimed under article nine, nine-A, thirty-two or 42 thirty-three, and eight percent in the case of credits claimed under 43 article twenty-two of this chapter. Provided, however, as provided in 44 section 27-1413 of the environmental conservation law, if the remedi- 45 ation certificate indicates that the soil on the qualified site has been 46 remediated to soil category 1 as that term is described in paragraph a 47 of subdivision three of section 27-1316 of the environmental conserva- 48 tion law, the applicable percentage shall be twelve percent in the case 49 of credits claimed under article nine, nine-A, thirty-two or thirty- 50 three, and ten percent in the case of credits claimed under article 51 twenty-two of this chapter. 52 (b) Definitions. As used in this section, the following terms shall 53 have the following meanings: 54 (1) Qualified site. A "qualified site" is a site with respect to which 55 a remediation certificate has been issued to the taxpayer by the commis-   S. 6257 94 A. 9759 1 sioner of environmental conservation pursuant to section 27-1413 of the 2 environmental conservation law. 3 (2) Site preparation costs. The term "site preparation costs" shall 4 mean all amounts properly chargeable to capital account, under generally 5 accepted accounting principles, (i) which are paid or incurred in 6 connection with a site's qualification for a remediation certificate, 7 and (ii) all other site preparation costs paid or incurred in connection 8 with preparing a site for the erection of a building or a component of a 9 building, or otherwise to establish a site as usable for its industrial, 10 commercial (including the commercial development of residential hous- 11 ing), recreational or conservation purposes. Site preparation costs 12 shall include, but not be limited to, the costs of excavation, temporary 13 electric wiring, scaffolding, demolition costs, and the costs of fencing 14 and security facilities. Site preparation costs shall not include the 15 cost of acquiring the site and shall not include amounts included in the 16 cost or other basis for federal income tax purposes of qualified tangi- 17 ble property, as described in paragraph three of this subdivision. 18 (3) Qualified tangible property. "Qualified tangible property" is 19 property which: 20 (A) is depreciable pursuant to section one hundred sixty-seven of the 21 internal revenue code, 22 (B) has a useful life of four years or more, 23 (C) has been acquired by purchase as defined in section one hundred 24 seventy-nine (d) of the internal revenue code, 25 (D) has a situs on a qualified site in this state, 26 (E) is principally used by the taxpayer for industrial, commercial, 27 recreational or environmental conservation purposes (including the 28 commercial development of residential housing), and 29 (F) is placed in service within three years following the issuance of 30 a remediation certificate with respect to such qualified site. 31 (4) Remediation certificate. The term "remediation certificate" shall 32 refer to the certificate so denominated which is issued by the commis- 33 sioner of environmental conservation pursuant to section 27-1413 of the 34 environmental conservation law. 35 (5) Corporate new business. A "corporate new business" shall include 36 any corporation, except a corporation: 37 (A) over fifty percent of the number of shares of stock of which enti- 38 tling the holders thereof to vote for the election of directors or trus- 39 tees is owned or controlled, either directly or indirectly, by a taxpay- 40 er subject to tax under article nine-A; section one hundred 41 eighty-three, one hundred eighty-four or one hundred eighty-five of 42 article nine; article thirty-two or thirty-three of this chapter; or 43 (B) which is substantially similar in operation and in ownership to a 44 business entity (or entities) taxable, or previously taxable, under 45 article nine-A; section one hundred eighty-three, one hundred eighty- 46 four, one hundred eighty-five or one hundred eighty-six of article nine; 47 article thirty-two or thirty-three of this chapter; article twenty-three 48 of this chapter or which would have been subject to tax under such arti- 49 cle twenty-three (as such article was in effect on January first, nine- 50 teen hundred eighty) or the income (or losses) of which is (or was) 51 includable under article twenty-two of this chapter whereby the intent 52 and purpose of this paragraph and the applicable provision of this chap- 53 ter relating to refunding of credit to new business would be evaded; or 54 (C) which has been subject to tax under the article or section with 55 respect to which the credit provided for under this section is claimed 56 for more than four taxable years (excluding short taxable years) prior   S. 6257 95 A. 9759 1 to the taxable year during which the taxpayer first becomes eligible for 2 such credit. 3 (c) Property which qualifies for the credit provided for under this 4 section and also for a credit provided for (1) under either subdivision 5 twelve or subdivision twelve-B of section two hundred ten of this chap- 6 ter, or both, (2) subsection (a) or subsection (j) of section six 7 hundred six of this chapter, or both, (3) the credit provided for under 8 subsection (i) of section fourteen hundred fifty-six of this chapter, or 9 (4) the credit provided under subdivision (q) of section fifteen hundred 10 eleven of this chapter may be the basis for either the credit provided 11 for under this section or one of the credits enumerated in paragraph 12 one, two or three of this subdivision, but not both. 13 (d)(1) With respect to qualified tangible property which is deprecia- 14 ble pursuant to section one hundred sixty-seven of the internal revenue 15 code but is not subject to the provisions of section one hundred sixty- 16 eight of such code and which is disposed of or ceases to be in qualified 17 use prior to the end of the taxable year in which the credit is to be 18 taken, the amount of the credit shall be that portion of the credit 19 provided for in this subdivision which represents the ratio which the 20 months of qualified use bear to the months of useful life. If property 21 on which credit has been taken is disposed of or ceases to be in quali- 22 fied use prior to the end of its useful life, the difference between the 23 credit taken and the credit allowed for actual use must be added back in 24 the year of disposition. Provided, however, if such property is disposed 25 of or ceases to be in qualified use after it has been in qualified use 26 for more than twelve consecutive years, it shall not be necessary to add 27 back the credit as provided in this paragraph. The amount of credit 28 allowed for actual use shall be determined by multiplying the original 29 credit by the ratio which the months of qualified use bear to the months 30 of useful life. For purposes of this paragraph, useful life of property 31 shall be the same as the taxpayer uses for depreciation purposes when 32 computing his federal income tax liability. 33 (2) Except with respect to that property to which paragraph four of 34 this subdivision applies, with respect to qualified tangible property 35 which is three-year property, as defined in subsection (e) of section 36 one hundred sixty-eight of the internal revenue code, which is disposed 37 of or ceases to be in qualified use prior to the end of the taxable year 38 in which the credit is to be taken, the amount of the credit shall be 39 that portion of the credit provided for in this section which represents 40 the ratio which the months of qualified use bear to thirty-six. If prop- 41 erty on which credit has been taken is disposed of or ceases to be in 42 qualified use prior to the end of thirty-six months, the difference 43 between the credit taken and the credit allowed for actual use must be 44 added back in the year of disposition. The amount of credit allowed for 45 actual use shall be determined by multiplying the original credit by the 46 ratio which the months of qualified use bear to thirty-six. 47 (3) Except with respect to that property to which paragraph four of 48 this subdivision applies, with respect to qualified tangible property 49 which is subject to the provisions of section one hundred sixty-eight of 50 the internal revenue code other than three-year property as defined in 51 subsection (e) of such section one hundred sixty-eight which is disposed 52 of or ceases to be in qualified use prior to the end of the taxable year 53 in which the credit is to be taken, the amount of the credit shall be 54 that portion of the credit provided for in this section which represents 55 the ratio which the months of qualified use bear to sixty. If property 56 on which credit has been taken is disposed of or ceases to be in quali-   S. 6257 96 A. 9759 1 fied use prior to the end of sixty months, the difference between the 2 credit taken and the credit allowed for actual use must be added back in 3 the year of disposition. The amount of credit allowed for actual use 4 shall be determined by multiplying the original credit by the ratio 5 which the months of qualified use bear to sixty. 6 (4) With respect to any qualified tangible property to which section 7 one hundred sixty-eight of the internal revenue code applies, which is a 8 building or a structural component of a building and which is disposed 9 of or ceases to be in qualified use prior to the end of the taxable year 10 in which the credit is to be taken, the amount of the credit shall be 11 that portion of the credit provided for in this section which represents 12 the ratio which the months of qualified use bear to the total number of 13 months over which the taxpayer chooses to deduct the property under the 14 internal revenue code. If property on which credit has been taken is 15 disposed of or ceases to be in qualified use prior to the end of the 16 period over which the taxpayer chooses to deduct the property under the 17 internal revenue code, the difference between the credit taken and the 18 credit allowed for actual use must be added back in the year of disposi- 19 tion. Provided, however, if such property is disposed of or ceases to be 20 in qualified use after it has been in qualified use for more than twelve 21 consecutive years, it shall not be necessary to add back the credit as 22 provided in this paragraph. The amount of credit allowed for actual use 23 shall be determined by multiplying the original credit by the ratio 24 which the months of qualified use bear to the total number of months 25 over which the taxpayer chooses to deduct the property under the inter- 26 nal revenue code. 27 (e) Cross-references. For application of the credit provided for in 28 this section, see the following provisions of this chapter: 29 (1) Article 9: Section 187-f 30 (2) Article 9-A: Section 210, subdivision 33 31 (3) Article 22: Section 606, subsections (i) and (dd) 32 (4) Article 32: Section 1456, subsection (q) 33 (5) Article 33: Section 1511, subdivision (u). 34 § 47. The tax law is amended by adding a new section 187-f to read as 35 follows: 36 § 187-f. Brownfield redevelopment tax credit. 1. Allowance of credit. 37 A taxpayer shall be allowed a credit, to be computed as provided in 38 section twenty-one of this chapter, against the taxes imposed by 39 sections one hundred eighty-three, one hundred eighty-four and one 40 hundred eighty-five of this article. Provided, however, that the amount 41 of such credit allowable against the tax imposed by section one hundred 42 eighty-four of this article shall be the excess of the amount of such 43 credit over the amount of any credit allowed by this section against the 44 tax imposed by section one hundred eighty-three of this article. 45 2. Carryovers. In no event shall the credit under this section be 46 allowed in an amount which will reduce the tax payable to less than the 47 applicable minimum tax fixed by section one hundred eighty-three or one 48 hundred eighty-five of this article. If, however, the amount of credit 49 allowable under this section for any taxable year reduces the tax to 50 such amount, any amount of credit not deductible in such taxable year 51 may be carried over to the following year or years and may be deducted 52 from the taxpayer's tax for such year or years. In lieu of such carry- 53 over, any such taxpayer which qualifies as a corporate new business 54 under paragraph five of subdivision (b) of section twenty-one of this 55 chapter may elect, on its report for its taxable year with respect to 56 which such credit is allowed, to treat fifty percent of the amount of   S. 6257 97 A. 9759 1 such carryover as an overpayment of tax to be credited or refunded in 2 accordance with the provisions of section ten hundred eighty-six of this 3 chapter. Provided, however, the provisions of subsection (c) of section 4 ten hundred eighty-eight of this chapter notwithstanding, no interest 5 shall be paid thereon. 6 § 48. Section 210 of the tax law is amended by adding a new subdivi- 7 sion 33 to read as follows: 8 33. Brownfield redevelopment tax credit. (a) Allowance of credit. A 9 taxpayer shall be allowed a credit, to be computed as provided in 10 section twenty-one of this chapter, against the tax imposed by this 11 article. 12 (b) Carryovers. The credit and carryovers of such credit allowed under 13 this subdivision for any taxable year shall not, in the aggregate, 14 reduce the tax due for such year to less than the higher of the amounts 15 prescribed in paragraphs (c) and (d) of subdivision one of this section. 16 However, if the amount of credit or carryovers of such credit, or both, 17 allowed under this subdivision for any taxable year reduces the tax to 18 such amount, any amount of credit or carryovers of such credit thus not 19 deductible in such taxable year may be carried over to the following 20 year or years and may be deducted from the tax for such year or years. 21 In lieu of such carryover, any such taxpayer which qualifies as a corpo- 22 rate new business under paragraph five of subdivision (b) of section 23 twenty-one of this chapter may elect, on its report for its taxable year 24 with respect to which such credit is allowed, to treat fifty percent of 25 the amount of such carryover as an overpayment of tax to be credited or 26 refunded in accordance with the provisions of section ten hundred eight- 27 y-six of this chapter. Provided, however, the provisions of subsection 28 (c) of section ten hundred eighty-eight of this chapter notwithstanding, 29 no interest shall be paid thereon. 30 § 49. Paragraph 1 of subsection (i) of section 606 of the tax law, as 31 separately amended by section 4 of part I, section 47 of part Y, section 32 4 of part CC, sections 4 and 15 of part GG, section 5 of part II and 33 section 3 of part E of chapter 63 of the laws of 2000, is amended to 34 read as follows: 35 (1) For purposes of determining the application under this section of 36 the credit provisions enumerated in the following table, a shareholder 37 of a New York S corporation: 38 (A) shall be treated as the taxpayer with respect to his or her pro 39 rata share of the corresponding credit base of such corporation, deter- 40 mined for the corporation's taxable year ending with or within the 41 shareholder's taxable year and 42 (B) shall be treated as the owner of a new business with respect to 43 such share if the corporation qualifies as a new business pursuant to 44 paragraph (j) of subdivision twelve of section two hundred ten of this 45 chapter, unless the shareholder has previously received a refund by 46 reason of the application of this subparagraph, or this subsection as it 47 was in effect for taxable years beginning before nineteen hundred nine- 48 ty-four. 49 The corporation's 50 With respect to the credit base under 51 following credit section two hundred ten 52 under this section: or section fourteen 53 hundred fifty-six of this 54 chapter is:   S. 6257 98 A. 9759 1 Investment tax credit Investment credit base 2 under subsection (a) or qualified 3 rehabilitation 4 expenditures under 5 subdivision twelve of 6 section two hundred ten 7 Empire zone Cost or other basis 8 investment tax credit under subdivision 9 under subsection (j) twelve-B 10 of section two hundred 11 ten 12 Empire zone Eligible wages under 13 wage tax credit subdivision nineteen of 14 under subsection (k) section two hundred ten 15 or subsection (e) of 16 section fourteen hundred 17 fifty-six 18 Empire zone Qualified investments 19 capital tax credit and contributions under 20 under subsection (1) subdivision twenty of 21 section two hundred ten 22 or subsection (d) of 23 section fourteen hundred 24 fifty-six 25 Agricultural property tax Allowable school 26 credit under subsection (n) district property taxes under 27 subdivision twenty-two of 28 section two hundred ten 29 Credit for employment Qualified first-year wages or 30 of persons with dis- qualified second-year wages 31 abilities under under subdivision 32 subsection (o) twenty-three of section 33 two hundred ten 34 or subsection (f) 35 of section fourteen 36 hundred fifty-six 37 Employment incentive Applicable investment credit 38 credit under subsec- base under subdivision 39 tion (a-1) twelve-D of section two 40 hundred ten 41 Empire zone Applicable investment 42 employment credit under sub- 43 incentive credit under division twelve-C 44 subsection (j-1) of section two hundred ten 45 Alternative fuels credit Cost under subdivision 46 under subsection (p) twenty-four of section two 47 hundred ten   S. 6257 99 A. 9759 1 Qualified emerging Applicable credit base 2 technology company under subdivision twelve-E 3 employment credit of section two hundred ten 4 under subsection (q) 5 Qualified emerging Qualified investments under 6 technology company subdivision twelve-F of 7 capital tax credit section two hundred ten 8 under subsection (r) 9 Credit for purchase of an Cost of an automated 10 automated external defibrillator external defibrillator under 11 under subsection (s) subdivision twenty-five of 12 section two hundred ten 13 or subsection (j) of section 14 fourteen hundred fifty-six 15 Low-income housing Credit amount under 16 credit under subsection (x) subdivision thirty 17 of section two hundred ten or 18 subsection (1) of section 19 fourteen hundred fifty-six 20 Credit for transportation Amount of credit under sub- 21 improvement contributions division thirty-two of section 22 under subsection (z) two hundred ten or subsection 23 (n) of section fourteen 24 hundred fifty-six 25 IMB credit for energy Amount of credit 26 taxes under sub- under subdivision 27 section (t-1) twenty-six-a of 28 section two hundred ten 29 QEZE credit for real property Amount of credit under 30 taxes under subsection (bb) subdivision twenty-seven of 31 section two hundred ten or 32 subsection (o) of section 33 fourteen hundred fifty-six 34 QEZE tax reduction credit Amount of credit under 35 under subsection (cc) subdivision twenty-eight of 36 section two hundred ten or 37 subsection (p) of section 38 fourteen hundred fifty-six 39 Green building credit Amount of green building credit 40 under subsection (y) under subdivision thirty-one 41 of section two hundred ten 42 or subsection (m) of section 43 fourteen hundred fifty-six 44 Credit for long-term Qualified costs under 45 care insurance premiums subdivision twenty-five-a of 46 under subsection (aa) section two hundred ten 47 or subsection (k) of section   S. 6257 100 A. 9759 1 fourteen hundred fifty-six 2 Brownfield redevelopment Applicable cost 3 credit under subsection or other basis 4 (dd) under subdivision 5 thirty-three of section 6 two hundred ten 7 or subsection (q) of 8 section fourteen hundred 9 fifty-six 10 § 50. Subsections (dd) and (ee) of section 606 of the tax law, as 11 relettered by section 1 of part DD of chapter 63 of the laws of 2000, 12 are relettered subsections (yy) and (zz) and a new subsection (dd) is 13 added to read as follows: 14 (dd) 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 tax imposed by this 17 article. 18 (2) Carryovers. If the amount of the credit and carryovers of such 19 credit allowed under this subsection for any taxable year shall exceed 20 the taxpayer's tax for such year, the excess, as well as any part of the 21 credit or carryovers of such credit, or both, may be carried over to the 22 following year or years and may be deducted from the taxpayer's tax for 23 such year or years. In lieu of carrying over any such excess, a taxpayer 24 who qualifies as an owner of a new business for purposes of paragraph 25 ten of subsection (a) of this section may, at his option, receive fifty 26 percent of such excess as a refund. Any refund paid pursuant to this 27 paragraph shall be deemed to be a refund of an overpayment of tax as 28 provided in section six hundred eighty-six of this article, provided, 29 however, that no interest shall be paid thereon. For purposes of this 30 section, in reading such paragraph ten, references therein to the 31 investment tax credit provided for under subsection (a) of this section 32 shall be deemed to refer to the credit provided for under this 33 subsection, and shall be read accordingly. 34 § 51. Subsection (c) of section 683 of the tax law is amended by 35 adding a new paragraph 10 to read as follows: 36 (10) Reports concerning a remediation certificate. If a taxpayer's 37 remediation certificate issued pursuant to section 27-1413 of the envi- 38 ronmental conservation law is modified or revoked by a determination 39 issued pursuant to subdivision six of section 27-1413 of the environ- 40 mental conservation law, any tax liability generated by reason of such 41 modification or revocation may be assessed within one year after such 42 determination is final and is no longer subject to judicial review and 43 the taxpayer shall be allowed to offset against such tax liability the 44 amount of any of the credits provided for under subsection (a) or (j) of 45 section six hundred six of this article which the taxpayer would have 46 been allowed with respect to amounts which were the basis for the credit 47 provided for under such section twenty-one which is the subject of such 48 assessment. 49 § 52. Subsection (a) of section 687 of the tax law, as amended by 50 chapter 309 of the laws of 1996, is amended to read as follows: 51 (a) General.--Claim for credit or refund of an overpayment of income 52 tax shall be filed by the taxpayer within (i) three years from the time 53 the return was filed [or], (ii) two years from the time the tax was 54 paid, or (iii) in the case of any overpayment arising from an erroneous 55 denial by the department of environmental conservation of a remediation   S. 6257 101 A. 9759 1 certificate pursuant to section 27-1413 of the environmental conserva- 2 tion law, two years from the time a final determination to the effect 3 that such denial was erroneous is made and is no longer subject to judi- 4 cial review, whichever of such periods expires the [later] latest, or if 5 no return was filed, within two years from the time the tax was paid. If 6 the claim is filed within the three year period, the amount of the cred- 7 it or refund shall not exceed the portion of the tax paid within the 8 three years immediately preceding the filing of the claim plus the peri- 9 od of any extension of time for filing the return unless such claim is 10 for a credit or a portion thereof provided pursuant to paragraph two or 11 four of subsection (c), paragraph two or four of subsection (d) or 12 subsection (e) of section six hundred six of this chapter. If the claim 13 is not filed within the three year period, but is filed within the two 14 year period, the amount of the credit or refund shall not exceed the 15 portion of the tax paid during the two years immediately preceding the 16 filing of the claim unless such claim is for a credit or a portion ther- 17 eof provided pursuant to paragraph two or four of subsection (c), para- 18 graph two or four of subsection (d) or subsection (e) of section six 19 hundred six of this chapter. In the case of a claim for credit or 20 refund filed within the period prescribed in paragraph (iii) of this 21 subsection, the amount of the credit or refund may exceed the portion of 22 the tax paid within the applicable period specified in the two imme- 23 diately preceding sentences, but only to the extent of the amount of the 24 overpayment attributable to the denial described in such paragraph 25 (iii). Except as otherwise provided in this section, if no claim is 26 filed, the amount of a credit or refund shall not exceed the amount 27 which would be allowable if a claim had been filed on the date the cred- 28 it or refund is allowed. 29 § 53. Subsection (c) of section 1083 of the tax law is amended by 30 adding a new paragraph 10 to read as follows: 31 (10) Reports concerning a remediation certificate. If a taxpayer's 32 remediation certificate issued pursuant to section 27-1413 of the envi- 33 ronmental conservation law is modified or revoked by a determination 34 issued pursuant to subdivision six of section 27-1413 of the environ- 35 mental conservation law, any tax liability generated by reason of such 36 modification or revocation may be assessed within one year after such 37 determination is final and is no longer subject to judicial review and 38 the taxpayer shall be allowed to offset against such tax liability the 39 amount of any of the credits provided for under subdivision twelve or 40 twelve-B of section two hundred ten, or subsection (i) of section four- 41 teen hundred fifty-six of this chapter or subdivision (q) of section 42 fifteen hundred eleven of this chapter which the taxpayer would have 43 been allowed with respect to amounts which were the basis for the credit 44 provided for under such section twenty-one which is the subject of such 45 assessment. 46 § 54. Subsection (a) of section 1087 of the tax law, as amended by 47 chapter 55 of the laws of 1982, is amended to read as follows: 48 (a) General.--Claim for credit or refund of an overpayment of tax 49 under article nine[, nine-a, nine-b or nine-c] or nine-A shall be filed 50 by the taxpayer within (i) three years from the time the return was 51 filed [or], (ii) two years from the time the tax was paid or (iii) in 52 the case of any overpayment arising from an erroneous denial by the 53 department of environmental conservation of a remediation certificate 54 pursuant to section 27-1413 of the environmental conservation law, two 55 years from the time a final determination to the effect that such denial 56 was erroneous is made and is no longer subject to judicial review,   S. 6257 102 A. 9759 1 whichever of such periods expires the [later] latest, or if no return 2 was filed, within two years from the time the tax was paid. If the 3 claim is filed within the three year period, the amount of the credit or 4 refund shall not exceed the portion of the tax paid within the three 5 years immediately preceding the filing of the claim plus the period of 6 any extension of time for filing the return. If the claim is not filed 7 within the three year period, but is filed within the two year period, 8 the amount of the credit or refund shall not exceed the portion of the 9 tax paid during the two years immediately preceding the filing of the 10 claim. In the case of a claim for credit or refund filed within the 11 period prescribed in paragraph (iii) of this subsection, the amount of 12 the credit or refund may exceed the portion of the tax paid within the 13 applicable period specified in the two immediately preceding sentences, 14 but only to the extent of the amount of the overpayment attributable to 15 the denial described in such paragraph (iii) of this subsection. Except 16 as otherwise provided in this section, if no claim is filed, the amount 17 of a credit or refund shall not exceed the amount which would be allow- 18 able if a claim had been filed on the date the credit or refund is 19 allowed. For special restriction in a proceeding on a claim for refund 20 of tax paid pursuant to an assessment made as a result of (i) a net 21 operating loss carryback or capital loss carryback, or (ii) an increase 22 or decrease in federal taxable income or federal tax, or (iii) a federal 23 change or correction or renegotiation, or computation or recomputation 24 of tax, which is treated in the same manner as if it were a deficiency 25 for federal income tax purposes, see paragraph (7) of subsection (c) of 26 section one thousand eighty-three. 27 § 55. Section 1456 of the tax law is amended by adding a new 28 subsection (q) to read as follows: 29 (q) Brownfield redevelopment tax credit. (1) Allowance of credit. A 30 taxpayer shall be allowed a credit, to be computed as provided in 31 section twenty-one of this chapter, against the tax imposed by this 32 article. 33 (2) Carryover. The credit and carryovers of such credit allowed under 34 this subsection for any taxable year shall not, in the aggregate, reduce 35 the tax due for such year to less than the minimum tax fixed by para- 36 graph three of subsection (b) of section fourteen hundred fifty-five of 37 this article. However, if the amount of credit or carryovers of such 38 credit, or both, allowed under this subsection for any taxable year 39 reduces the tax to such amount, then any amount of credit or carryovers 40 of such credit thus not deductible in such taxable year may be carried 41 over to the following year or years and may be deducted from the taxpay- 42 er's tax for such year or years. In lieu of such carryover, any such 43 taxpayer which qualifies as a corporate new business under paragraph 44 five of subdivision (b) of section twenty-one of this chapter may elect, 45 on its report for its taxable year with respect to which such credit is 46 allowed, to treat fifty percent of the amount of such carryover as an 47 overpayment of tax to be credited or refunded in accordance with the 48 provisions of section ten hundred eighty-six of this chapter. Provided, 49 however, the provisions of subsection (c) of section ten hundred eight- 50 y-eight of this chapter notwithstanding, no interest shall be paid ther- 51 eon. 52 § 56. Section 1511 of the tax law is amended by adding a new subdivi- 53 sion (u) to read as follows: 54 (u) Brownfield redevelopment tax credit. (1) Allowance of credit. A 55 taxpayer shall be allowed a credit, to be computed as provided in   S. 6257 103 A. 9759 1 section twenty-one of this chapter, against the taxes imposed by this 2 article. 3 (2) Carryover. 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 minimum fixed by para- 6 graph four of subdivision (a) of section fifteen hundred two of this 7 article. However, if the amount of credit or carryovers of such credit, 8 or both, allowed under this subdivision for any taxable year reduces the 9 tax to such amount, then any amount of credit or carryovers of such 10 credit thus not deductible in such taxable year may be carried over to 11 the following year or years and may be deducted from the taxpayer's tax 12 for such year or years. In lieu of such carryover, any such taxpayer 13 which qualifies as a corporate new business under paragraph five of 14 subdivision (b) of section twenty-one of this chapter may elect, on its 15 report for its taxable year with respect to which such credit is 16 allowed, to treat fifty percent of the amount of such carryover as an 17 overpayment of tax to be credited or refunded in accordance with the 18 provisions of section ten hundred eighty-six of this chapter. Provided, 19 however, the provisions of subsection (c) of section ten hundred eight- 20 y-eight of this chapter notwithstanding, no interest shall be paid ther- 21 eon. 22 § 57. The tax law is amended by adding a new section 25 to read as 23 follows: 24 § 25. Tax credits for remediated brownfields. (a) Definitions. As 25 used in this section the following terms shall have the following mean- 26 ings: 27 (1) Remediation certificate. A "remediation certificate" is a certif- 28 icate issued by the commissioner of environmental conservation pursuant 29 to section 27-1413 of the environmental conservation law. 30 (2) Qualified site. For purposes of this section, a "qualified site" 31 is a site with respect to which a remediation certificate has been 32 issued and which is located in its entirety outside the metropolitan 33 commuter transportation district created and established pursuant to 34 section twelve hundred sixty-two of the public authorities law. 35 (3) Small qualified site. A "small qualified site" is a qualified site 36 which, on the effective date of the remediation certificate issued with 37 respect to such site, consists of at least ten but no more than one 38 hundred acres and is located at least partially within a city in this 39 state. 40 (4) Large qualified site. A "large qualified site" is a qualified site 41 which, on the effective date of the remediation certificate issued with 42 respect to such site, consists of more than one hundred acres. 43 (5) Developer. (i) A "developer" is a taxpayer under article nine, 44 nine-A, twenty-two, thirty-two or thirty-three of this chapter who or 45 which either (I) has been issued a remediation certificate with respect 46 to a qualified site or (II) has purchased all or any portion of a quali- 47 fied site from a taxpayer who or which has been issued a remediation 48 certificate with respect to such site provided, in the case of a small 49 qualified site, such purchase occurs within five years of the effective 50 date of the remediation certificate issued with respect to such small 51 qualified site, and in the case of a large qualified site, such purchase 52 occurs within ten years of the effective date of the remediation certif- 53 icate issued with respect to such large qualified site. Provided 54 further, that the taxpayer who or which is purchasing all or any portion 55 of a qualified site and the taxpayer who or which has been issued a 56 remediation certificate with respect to such site may not be related   S. 6257 104 A. 9759 1 persons, as such term is defined in subparagraph (C) of paragraph three 2 of subsection (b) of section four hundred sixty-five of the internal 3 revenue code. 4 (ii) Where the entity to whom a remediation certificate has been 5 issued is a partnership, or where the entity which has purchased all or 6 any portion of a small or large qualified site from a taxpayer who or 7 which has been issued a remediation certificate with respect to such 8 site within the applicable time limit is a partnership, any partner in 9 such partnership who or which is taxable under article nine, nine-A, 10 twenty-two, thirty-two or thirty-three of this chapter shall be a devel- 11 oper under this paragraph. Where the entity to whom a remediation 12 certificate has been issued is a New York S corporation, or where the 13 entity which has purchased all or any portion of a small or large quali- 14 fied site from a taxpayer who or which has been issued a remediation 15 certificate with respect to such site within the applicable time limit 16 is a New York S corporation, any shareholder in such New York S corpo- 17 ration shall be a developer under this paragraph. 18 (iii) In order for a taxpayer to be a "developer" for purposes of 19 clause (II) of subparagraph (i) of this paragraph, such taxpayer shall 20 not be a person that would have been ineligible to receive a remediation 21 certificate with respect to such site for the reasons stated in para- 22 graphs a and c of subdivision two of section 27-1405 of the environ- 23 mental conservation law. 24 (6) Business tax benefit period. The "business tax benefit period", 25 with regard to the credits described in subdivisions (b) and (c) of this 26 section, shall be (i) in the case of a developer of a small qualified 27 site, a period of fourteen consecutive taxable years of such developer 28 or (ii) in the case of a developer of a large qualified site, a period 29 of nineteen consecutive taxable years of such developer. Such period 30 shall commence (i) in the taxable year next following the year in which 31 such developer is issued a remediation certificate with respect to a 32 qualified site or (ii) in the case of a developer who has purchased all 33 or any portion of a qualified site, in the taxable year in which such 34 developer purchases such qualified site. 35 (b) Remediated brownfield credit for real property taxes for small 36 qualified sites. (1) Allowance of credit. A developer of a small quali- 37 fied site who or which is subject to tax under article nine, nine-A, 38 twenty-two, thirty-two or thirty-three of this chapter, shall be allowed 39 a credit against such tax, pursuant to the provisions referenced in 40 paragraph eight of this subdivision, for eligible real property taxes 41 imposed on such small qualified site. 42 (2) Amount of credit. The amount of the credit shall be the product of 43 (i) the benefit period factor, (ii) the employment number factor, and 44 (iii) the eligible real property taxes paid or incurred by the developer 45 of the small qualified site during the taxable year (or the pro rata 46 share of such taxes in the case of a partner in a partnership). Howev- 47 er, the amount of the credit may not exceed the credit limitation set 48 forth in paragraph seven of this subdivision. 49 (3) Benefit period factor. The benefit period factors are set forth in 50 the following table: 51 Taxable year of the business Benefit period factor: 52 tax benefit period: 53 1-10 1.0 54 11 .8 55 12 .6 56 13 .4   S. 6257 105 A. 9759 1 14 .2 2 (4) Employment number factor. (i) The employment number factors are 3 set forth in the following table: 4 Average number of full-time Employment number factor: 5 employees employed by the 6 developer of a qualified 7 site at such site during the 8 taxable year: 9 at least 25 but less than 50 .25 10 at least 50 but less than 75 .50 11 at least 75 but less than 100 .75 12 at least 100 1.00 13 (ii) For purposes of this paragraph, the average number of full-time 14 employees employed by a developer at a qualified site during a taxable 15 year shall be computed by determining the number of such individuals 16 employed by the developer on the thirty-first day of March, the thirti- 17 eth day of June, the thirtieth day of September and the thirty-first day 18 of December during the taxable year, adding together the number of such 19 individuals determined to be so employed on each of such dates and 20 dividing the sum so obtained by the number of such dates occurring with- 21 in such applicable taxable year. For purposes of this calculation, 22 general executive officers in the case of a corporation shall be 23 excluded. Where the developer is a partner in a partnership or a share- 24 holder in a New York S corporation, the number of full-time employees of 25 the partnership or New York S corporation, respectively, at such quali- 26 fied site shall be used for purposes of this calculation. 27 (5) Eligible real property taxes. The term "eligible real property 28 taxes" means taxes imposed on the real property which consists of the 29 small qualified site owned by the developer, provided such taxes become 30 a lien on the real property in a period during which the real property 31 is a qualified site. Where the developer is a partner in a partnership 32 or a shareholder in a New York S corporation, such real property shall 33 be owned by the partnership or New York S corporation, respectively. 34 (6) Credit recapture. Where a developer's eligible real property taxes 35 which were the basis for the allowance of the credit provided for under 36 this subdivision are subsequently reduced as a result of a final order 37 in any proceeding under article seven of the real property tax law or 38 other provision of law, the taxpayer shall add back, in the taxable year 39 in which such final order is issued, the excess of (i) the amount of 40 credit originally allowed for a taxable year over (ii) the amount of 41 credit determined based upon the reduced eligible real property taxes. 42 If such final order reduces real property taxes for more than one year, 43 the taxpayer must determine how much of such reduction is attributable 44 to each year covered by such final order and calculate the amount of 45 credit which is required by this paragraph to be recaptured for each 46 year based on such reduction. 47 (7) The credit limitation shall be the greater of the employment 48 increase limitation or the capital investment limitation. 49 (i) The employment increase limitation shall be the product of (A) ten 50 thousand dollars and (B) the average number of full-time employees 51 employed by the developer of a qualified site at such site during the 52 taxable year in excess of twenty-five. 53 (ii) The capital investment limitation shall be ten percent of the 54 cost or other basis for federal income tax purposes, determined on the 55 last day of the taxable year, of the real property, including buildings   S. 6257 106 A. 9759 1 and structural components of buildings, which consists of the small 2 qualified site owned by the developer. 3 (8) Credit option. If the small qualified site is located in whole or 4 in part in an area designated as an empire zone pursuant to article 5 eighteen-B of the general municipal law, and a taxpayer meets the eligi- 6 bility requirements for both the credit provided for under this subdivi- 7 sion and the QEZE credit for real property taxes provided for under 8 section fifteen of this chapter, with respect to all or part of such 9 site, such taxpayer shall not be allowed to claim both such credits. The 10 taxpayer shall be required, in the first taxable year such taxpayer is 11 allowed to claim a credit under this subdivision, to elect whether to 12 claim the credit provided for under this subdivision or the credit 13 provided for under section fifteen of this article. Such election shall 14 be made with the filing of the return or report required under article 15 nine, nine-A, twenty-two, thirty-two or thirty-three of this chapter, 16 whichever is applicable, for such taxable year. Such election shall 17 apply to and be binding in each subsequent taxable year in the business 18 tax benefit period applicable to the credit provided for under either 19 this section or section fifteen of this article. A taxpayer who or which 20 has been allowed a credit under section fifteen of this chapter, in a 21 taxable year preceding the first taxable year such taxpayer is allowed 22 to claim a credit under this subdivision, shall not be precluded from 23 making the election provided for in this paragraph. 24 (9) Cross-references. For application of the credit provided for in 25 this subdivision, see the following provisions of this chapter: 26 (i) Article 9: Section 187-g. 27 (ii) Article 9-A: Section 210: subdivision thirty-six. 28 (iii) Article 22: Section 606: subsections (i) and (jj). 29 (iv) Article 32: Section 1456: subsection (r). 30 (v) Article 33: Section 1511: subdivision (v). 31 (c) Remediated brownfield credit for real property taxes for large 32 qualified sites. (1) Allowance of credit. A developer of a large quali- 33 fied site who or which is subject to tax under article nine, nine-A, 34 twenty-two, thirty-two or thirty-three of this chapter, shall be allowed 35 a credit against such tax, pursuant to the provisions referenced in 36 paragraph eight of this subdivision, for eligible real property taxes 37 imposed on such large qualified site. 38 (2) Amount of credit. The amount of the credit shall be the product of 39 (i) the benefit period factor, (ii) the employment number factor, and 40 (iii) the eligible real property taxes paid or incurred by the developer 41 of the large qualified site during the taxable year (or the pro rata 42 share of such taxes in the case of a partner in a partnership). Howev- 43 er, the amount of the credit may not exceed the credit limitation set 44 forth in paragraph seven of this subdivision. 45 (3) Benefit period factor. The benefit period factors are set forth in 46 the following table: 47 Taxable year of the business tax benefit period: Benefit period factor: 48 1-15 1.0 49 16 .8 50 17 .6 51 18 .4 52 19 .2 53 (4) Employment number factor. The employment number factor shall be as 54 prescribed in paragraph four of subdivision (b) of this section. 55 (5) Eligible real property taxes. The term "eligible real property 56 taxes" means taxes imposed on the real property which consists of the   S. 6257 107 A. 9759 1 large qualified site owned by the developer, provided such taxes become 2 a lien on the real property in a period during which the real property 3 is a large qualified site. Where the developer is a partner in a part- 4 nership or a shareholder in a New York S corporation, such real property 5 shall be owned by the partnership or New York S corporation, respective- 6 ly. 7 (6) Credit recapture. Where a developer's eligible real property taxes 8 which were the basis for the allowance of the credit provided for under 9 this subdivision are subsequently reduced as a result of a final order 10 in any proceeding under article seven of the real property tax law or 11 other provision of law, the taxpayer shall add back, in the taxable year 12 in which such final order is issued, the excess of (i) the amount of 13 credit originally allowed for a taxable year over (ii) the amount of 14 credit determined based upon the reduced eligible real property taxes. 15 If such final order reduces real property taxes for more than one year, 16 the taxpayer must determine how much of such reduction is attributable 17 to each year covered by such final order and calculate the amount of 18 credit which is required by this paragraph to be recaptured for each 19 year based on such reduction. 20 (7) The credit limitation shall be the greater of the employment 21 increase limitation or the capital investment limitation. 22 (i) The employment increase limitation shall be the product of (A) ten 23 thousand dollars and (B) the average number of full-time employees 24 employed by the developer of a qualified site at such site during the 25 taxable year in excess of twenty-five. 26 (ii) The capital investment limitation shall be ten percent of the 27 cost or other basis for federal income tax purposes, determined on the 28 last day of the taxable year, of the real property, including buildings 29 and structural components of buildings, which consists of the large 30 qualified site owned by the developer. 31 (8) Credit option. If the large qualified site is located in whole or 32 in part in an area designated as an empire zone pursuant to article 33 eighteen-B of the general municipal law, and a taxpayer meets the eligi- 34 bility requirements for both the credit provided for under this subdivi- 35 sion and the QEZE credit for real property taxes provided for under 36 section fifteen of this chapter, with respect to all or part of such 37 site, such taxpayer shall not be allowed to claim both such credits. The 38 taxpayer shall be required, in the first taxable year such taxpayer is 39 allowed to claim a credit under this subdivision, to elect whether to 40 claim the credit provided for under this subdivision or the credit 41 provided for under section fifteen of this article. Such election shall 42 be made with the filing of the return or report required under article 43 nine, nine-A, twenty-two, thirty-two or thirty-three of this chapter, 44 whichever is applicable, for such taxable year. Such election shall 45 apply to and be binding in each subsequent taxable year in the business 46 tax benefit period applicable to the credit provided for under either 47 this section or section fifteen of this article. A taxpayer who or which 48 has been allowed a credit under section fifteen of this article, in a 49 taxable year preceding the first taxable year such taxpayer is allowed 50 to claim a credit under this subdivision, shall not be precluded from 51 making the election provided for in this paragraph. 52 (9) Cross-references. For application of the credit provided for in 53 this subdivision, see the following provisions of this chapter: 54 (i) Article 9: Section 187-h. 55 (ii) Article 9-A: Section 210: subdivision thirty-seven. 56 (iii) Article 22: Section 606: subsections (i) and (kk).   S. 6257 108 A. 9759 1 (iv) Article 32: Section 1456: subsection (s). 2 (v) Article 33: Section 1511: subdivision (w). 3 § 58. The tax law is amended by adding two new sections 187-g and 4 187-h to read as follows: 5 § 187-g. Remediated brownfield credit for real property taxes for 6 small qualified sites. 1. Allowance of credit. A taxpayer shall be 7 allowed a credit, to be computed as provided in subdivision (b) of 8 section twenty-five of this chapter, against the taxes imposed by 9 sections one hundred eighty-three, one hundred eighty-four and one 10 hundred eighty-five of this article. Provided, however, that the amount 11 of such credit allowed against the tax imposed by section one hundred 12 eighty-four of this article shall be the excess of the amount of such 13 credit over the amount of any credit allowed by this section against the 14 tax imposed by section one hundred eighty-three of this article. 15 2. Application of credit. In no event shall the credit under this 16 section be allowed in an amount which will reduce the tax payable to 17 less than the applicable minimum tax fixed by section one hundred eight- 18 y-three or one hundred eighty-five of this article. If, however, the 19 amount of credit allowed under this section for any taxable year reduces 20 the tax to such amount, any amount of credit not thus deductible in such 21 taxable 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 § 187-h. Remediated brownfield credit for real property taxes for 27 large qualified sites. 1. Allowance of credit. A taxpayer shall be 28 allowed a credit, to be computed as provided in subdivision (b) of 29 section twenty-five of this chapter, against the taxes imposed by 30 section one hundred eighty-three, one hundred eighty-four and one 31 hundred eighty-five of this article. Provided, however, that the amount 32 of such credit allowed against the tax imposed by section one hundred 33 eighty-four of this article shall be the excess of the amount of such 34 credit over the amount of any credit allowed by this section against the 35 tax imposed by section one hundred eighty-three of this article. 36 2. Application of credit. In no event shall the credit under this 37 section be allowed in an amount which will reduce the tax payable to 38 less than the applicable minimum tax fixed by section one hundred eight- 39 y-three or one hundred eighty-five of this article. If, however, the 40 amount of credit allowed under this section for any taxable year reduces 41 the tax to such amount, any amount of credit not thus deductible in such 42 taxable year shall be treated as an overpayment of tax to be credited or 43 refunded in accordance with the provisions of section ten hundred eight- 44 y-six of this chapter. Provided, however, the provisions of subsection 45 (c) of section ten hundred eighty-eight of this chapter notwithstanding, 46 no interest shall be paid thereon. 47 § 59. Section 210 of the tax law is amended by adding two new subdivi- 48 sions 36 and 37 to read as follows: 49 36. Remediated brownfield credit for real property taxes for small 50 qualified sites. (a) Allowance of credit. A taxpayer which is a develop- 51 er of a small qualified site shall be allowed a credit for eligible real 52 property taxes, to be computed as provided in subdivision (b) of section 53 twenty-five of this chapter, against the tax imposed by this article. 54 For purposes of this subdivision, the terms "small qualified site" and 55 "developer" shall have the same meaning as set forth in paragraphs three   S. 6257 109 A. 9759 1 and five, respectively, of subdivision (a) of section twenty-five of 2 this chapter. 3 (b) Application of credit. The credit allowed under this subdivision 4 for any taxable year shall not reduce the tax due for such year to less 5 than the higher of the amounts prescribed in paragraphs (c) and (d) of 6 subdivision one of this section. However, if the amount of credit 7 allowed under this subdivision for any taxable year reduces the tax to 8 such amount, any amount of credit thus not deductible in such taxable 9 year shall be treated as an overpayment of tax to be credited or 10 refunded in accordance with the provisions of section ten hundred eight- 11 y-six of this chapter. Provided, however, the provisions of subsection 12 (c) of section ten hundred eighty-eight of this chapter notwithstanding, 13 no interest shall be paid thereon. 14 37. Remediated brownfield credit for real property taxes for large 15 qualified sites. (a) Allowance of credit. A taxpayer which is a develop- 16 er of a large qualified site shall be allowed a credit for eligible real 17 property taxes, to be computed as provided in subdivision (c) of section 18 twenty-five of this chapter, against the tax imposed by this article. 19 For purposes of this subdivision, the terms "large qualified site" and 20 "developer" shall have the same meaning as set forth in paragraphs four 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 29 year shall be treated as an overpayment of tax to be credited or 30 refunded in accordance with the provisions of section ten hundred eight- 31 y-six of this chapter. Provided, however, the provisions of subsection 32 (c) of section ten hundred eighty-eight of this chapter notwithstanding, 33 no interest shall be paid thereon. 34 § 60. Subparagraph (B) of paragraph 1 of subsection (i) of section 606 35 of the tax law, as separately amended by section 4 of part I, section 47 36 of part Y, section 4 of part CC, sections 4 and 15 of part GG, section 5 37 of part II and section 3 of part E of chapter 63 of the laws of 2000, is 38 amended to read as follows: 39 (B) shall be treated as the owner of a new business with respect to 40 such share if the corporation qualifies as a new business pursuant to 41 paragraph (j) of subdivision twelve of section two hundred ten of this 42 chapter[, unless the shareholder has previously received a refund by 43 reason of the application of this subparagraph, or this subsection as it 44 was in effect for taxable years beginning before nineteen hundred nine- 45 ty-four]. 46 The corporation's 47 With respect to the credit base under 48 following credit section two hundred ten 49 under this section: or section fourteen 50 hundred fifty-six of this 51 chapter is: 52 Investment tax credit Investment credit base 53 under subsection (a) or qualified 54 rehabilitation   S. 6257 110 A. 9759 1 expenditures under 2 subdivision twelve of 3 section two hundred ten 4 Empire zone Cost or other basis 5 investment tax credit under subdivision 6 under subsection (j) twelve-B 7 of section two hundred 8 ten 9 Empire zone Eligible wages under 10 wage tax credit subdivision nineteen of 11 under subsection (k) section two hundred ten 12 or subsection (e) of 13 section fourteen hundred 14 fifty-six 15 Empire zone Qualified investments 16 capital tax credit and contributions under 17 under subsection (1) subdivision twenty of 18 section two hundred ten 19 or subsection (d) of 20 section fourteen hundred 21 fifty-six 22 Agricultural property tax Allowable school 23 credit under subsection (n) district property taxes under 24 subdivision twenty-two of 25 section two hundred ten 26 Credit for employment Qualified first-year wages or 27 of persons with dis- qualified second-year wages 28 abilities under under subdivision 29 subsection (o) twenty-three of section 30 two hundred ten 31 or subsection (f) 32 of section fourteen 33 hundred fifty-six 34 Employment incentive Applicable investment credit 35 credit under subsec- base under subdivision 36 tion (a-1) twelve-D of section two 37 hundred ten 38 Empire zone Applicable investment 39 employment credit under sub- 40 incentive credit under division twelve-C 41 subsection (j-1) of section two hundred ten 42 Alternative fuels credit Cost under subdivision 43 under subsection (p) twenty-four of section two 44 hundred ten 45 Qualified emerging Applicable credit base 46 technology company under subdivision twelve-E   S. 6257 111 A. 9759 1 employment credit of section two hundred ten 2 under subsection (q) 3 Qualified emerging Qualified investments under 4 technology company subdivision twelve-F of 5 capital tax credit section two hundred ten 6 under subsection (r) 7 Credit for purchase of an Cost of an automated 8 automated external defibrillator external defibrillator under 9 under subsection (s) subdivision twenty-five of 10 section two hundred ten 11 or subsection (j) of section 12 fourteen hundred fifty-six 13 Low-income housing Credit amount under 14 credit under subsection (x) subdivision thirty 15 of section two hundred ten or 16 subsection (1) of section 17 fourteen hundred fifty-six 18 Credit for transportation Amount of credit under sub- 19 improvement contributions division thirty-two of section 20 under subsection (z) two hundred ten or subsection 21 (n) of section fourteen 22 hundred fifty-six 23 IMB credit for energy Amount of credit 24 taxes under sub- under subdivision 25 section (t-1) twenty-six-a of 26 section two hundred ten 27 QEZE credit for real property Amount of credit under 28 taxes under subsection (bb) subdivision twenty-seven of 29 section two hundred ten or 30 subsection (o) of section 31 fourteen hundred fifty-six 32 QEZE tax reduction credit Amount of credit under 33 under subsection (cc) subdivision twenty-eight of 34 section two hundred ten or 35 subsection (p) of section 36 fourteen hundred fifty-six 37 Green building credit Amount of green building credit 38 under subsection (y) under subdivision thirty-one 39 of section two hundred ten 40 or subsection (m) of section 41 fourteen hundred fifty-six 42 Credit for long-term Qualified costs under 43 care insurance premiums subdivision twenty-five-a of 44 under subsection (aa) section two hundred ten 45 or subsection (k) of section 46 fourteen hundred fifty-six   S. 6257 112 A. 9759 1 Remediated brownfield Amount of credit under 2 credit for real property subdivision thirty-six 3 taxes for small qualified of section two hundred 4 sites under subsection ten or subsection (r) of 5 (jj) section fourteen hundred 6 fifty-six 7 Remediated brownfield Amount of credit under 8 credit for real property subdivision thirty-seven 9 taxes for large qualified of section two hundred 10 sites under subsection ten or subsection (s) of 11 (kk) section fourteen hundred 12 fifty-six 13 § 61. Section 606 of the tax law is amended by adding two new 14 subsections (jj) and (kk) to read as follows: 15 (jj) Remediated brownfield credit for real property taxes for small 16 qualified sites. (1) Allowance of credit. A taxpayer which is a develop- 17 er of a small qualified site shall be allowed a credit for eligible real 18 property taxes, to be computed as provided in subdivision (b) of section 19 twenty-five of this chapter, against the tax imposed by this article. 20 For purposes of this subsection, the terms "small qualified site" and 21 "developer" shall have the same meaning as set forth in paragraphs three 22 and five, respectively, of subdivision (a) of section twenty-five of 23 this chapter. 24 (2) Application of credit. If the amount of the credit allowed under 25 this subsection for any taxable year shall exceed the taxpayer's tax for 26 such year, the excess shall be treated as an overpayment of tax to be 27 credited or refunded in accordance with the provisions of section six 28 hundred eighty-six of this article, provided, however, that no interest 29 shall be paid thereon. 30 (kk) Remediated brownfield tax credit for real property taxes for 31 large qualified sites. (1) Allowance of credit. A taxpayer which is a 32 developer of a large qualified site shall be allowed a credit for eligi- 33 ble real property taxes, to be computed as provided in subdivision (c) 34 of section twenty-five of this chapter, against the tax imposed by this 35 article. For purposes of this subsection, the terms "large qualified 36 site" and "developer" shall have the same meaning as set forth in para- 37 graphs four and five, respectively, of subdivision (a) of section twen- 38 ty-five of this chapter. 39 (2) Application of credit. If the amount of the credit allowed under 40 this subsection for any taxable year shall exceed the taxpayer's tax for 41 such year, the excess shall be treated as an overpayment of tax to be 42 credited or refunded in accordance with the provisions of section six 43 hundred eighty-six of this article, provided, however, that no interest 44 shall be paid thereon. 45 § 62. Section 1456 of the tax law is amended by adding two new 46 subsections (r) and (s) to read as follows: 47 (r) Remediated brownfield credit for real property taxes for small 48 qualified sites. (1) Allowance of credit. A taxpayer which is a develop- 49 er of a small qualified site shall be allowed a credit for eligible real 50 property taxes, to be computed as provided in subdivision (b) of section 51 twenty-five of this chapter, against the tax imposed by this article. 52 For purposes of this subsection, the terms "small qualified site" and 53 "developer" shall have the same meaning as set forth in paragraphs three 54 and five, respectively, of subdivision (a) of section twenty-five of 55 this chapter.   S. 6257 113 A. 9759 1 (2) Application of credit. The credit allowed under this subsection 2 for any taxable year shall not reduce the tax due for such year to less 3 than the minimum tax fixed by paragraph three of subsection (b) of 4 section fourteen hundred fifty-five of this article. However,if the 5 amount of credit allowed under this subsection for any taxable year 6 reduces the tax to such amount, any amount of credit thus not deductible 7 in such taxable year shall be treated as an overpayment of tax to be 8 credited or refunded in accordance with the provisions of section ten 9 hundred eighty-six of this chapter. Provided, however, the provisions of 10 subsection (c) of section ten hundred eighty-eight of this chapter 11 notwithstanding, no interest shall be paid thereon. 12 (s) Remediated brownfield credit for real property taxes for large 13 qualified sites. (1) Allowance of credit. A taxpayer which is a develop- 14 er of a large qualified site shall be allowed a credit for eligible real 15 property taxes, to be computed as provided in subdivision (c) of 16 section twenty-five of this chapter, against the tax imposed by this 17 article. For purposes of this subsection, the terms "large qualified 18 site" and "developer" shall have the same meaning as set forth in para- 19 graphs four and five, respectively, of subdivision (a) of section twen- 20 ty-five of this chapter. 21 (2) Application of credit. The credit allowed under this subsection 22 for any taxable year shall not reduce the tax due for such year to less 23 than the minimum tax fixed by paragraph three of subsection (b) of 24 section fourteen hundred fifty-five of this article. However, if the 25 amount of credit allowed under this subsection for any taxable year 26 reduces the tax to such amount, any amount of credit thus not deductible 27 in such taxable year shall be treated as an overpayment of tax to be 28 credited or refunded in accordance with the provisions of section ten 29 hundred eighty-six of this chapter. Provided, however, the provisions of 30 subsection (c) of section ten hundred eighty-eight of this chapter 31 notwithstanding, no interest shall be paid thereon. 32 § 63. Section 1511 of the tax law is amended by adding two new subdi- 33 visions (v) and (w) to read as follows: 34 (v) Remediated brownfield credit for real property taxes for small 35 qualified sites. (1) Allowance of credit. A taxpayer which is a develop- 36 er of a small qualified site shall be allowed a credit for eligible real 37 property taxes, to be computed as provided in subdivision (b) of section 38 twenty-five of this chapter, against the tax imposed by this article. 39 For purposes of this subdivision, the terms "small qualified site" and 40 "developer" shall have the same meaning as set forth in paragraphs three 41 and five, respectively, of subdivision (a) of section twenty-five of 42 this chapter. 43 (2) Application of credit. The credit allowed under this subdivision 44 for any taxable year shall not reduce the tax due for such year to less 45 than the minimum tax fixed by paragraph four of subdivision (a) of 46 section fifteen hundred two of this article. However, if the amount of 47 credit allowed under this subdivision for any taxable year reduces the 48 tax to such amount, any amount of credit thus not deductible in such 49 taxable year shall be treated as an overpayment of tax to be credited or 50 refunded in accordance with the provisions of section ten hundred eight- 51 y-six of this chapter. Provided, however, the provisions of subsection 52 (c) of section ten hundred eighty-eight of this chapter notwithstanding, 53 no interest shall be paid thereon. 54 (w) Remediated brownfield credit for real property taxes for large 55 qualified sites. (1) Allowance of credit. A taxpayer which is a develop- 56 er of a large qualified site shall be allowed a credit for eligible real   S. 6257 114 A. 9759 1 property taxes, to be computed as provided in subdivision (c) of section 2 twenty-five of this chapter, against the tax imposed by this article. 3 For purposes of this subdivision, the terms "large qualified site" and 4 "developer" shall have the same meaning as set forth in paragraphs four 5 and five, respectively, of subdivision (a) of section twenty-five of 6 this chapter. 7 (2) Application of credit. The credit allowed under this subdivision 8 for any taxable year shall not reduce the tax due for such year to less 9 than the minimum tax fixed by paragraph four of subdivision (a) of 10 section fifteen hundred two of this article. However, if the amount of 11 credit allowed under this subdivision for any taxable year reduces the 12 tax to such amount, any amount of credit thus not 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 § 64. Subdivision 7 of section 56-0101 of the environmental conserva- 19 tion law, as added by chapter 413 of the laws of 1996, is amended to 20 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 § 65. 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. 27 [For] 1. "Municipality", for purposes of this title ["municipality"], 28 shall have the same meaning as provided in subdivision [twelve] fifteen 29 of section 56-0101 of this article, except that such term shall not 30 refer to a municipality that generated, transported or disposed of, 31 arranged for, or that caused the generation, transportation or disposal 32 of hazardous substance located at real property proposed to be investi- 33 gated or to be remediated under an environmental restoration project. 34 2. "Cost", for purposes of this title, shall have the same meaning as 35 provided in subdivision four of section 56-0101 of this article, except 36 that such term shall not include the requirement to reduce the cost of 37 an approved project in accordance with any federal or state funds for 38 the project received or to be received by the municipality. 39 3. "Environmental restoration investigation project", shall mean a 40 project, undertaken in accordance with the requirements of this title, 41 to investigate hazardous substances located in, on or emanating from 42 real property either held in title by a municipality or for which fee 43 title may be acquired by a municipality. 44 4. "Environmental restoration remediation project", shall mean a 45 project, undertaken in accordance with the requirements of this title, 46 to remediate hazardous substances located in, on or emanating from real 47 property held in title by a municipality. 48 § 66. Section 56-0503 of the environmental conservation law, as added 49 by chapter 413 of the laws of 1996, is amended to read as follows: 50 § 56-0503. Environmental restoration projects; state assistance. 51 1. The commissioner may enter into a contract with a municipality to 52 provide state assistance to such municipality to undertake an environ- 53 mental restoration project. The amount of state assistance payment for 54 such project shall be up to an amount of [seventy-five]: 55 (a) ninety percent of the eligible costs of such project, subject to 56 the provisions set forth in paragraph (b) of this subdivision;   S. 6257 115 A. 9759 1 (b) one hundred percent of the eligible costs of any remediation 2 directed by the department to be undertaken outside the boundaries of 3 the real property that is subject to an environmental restoration 4 project approved by the department. 5 2. In addition to such other terms and conditions that the commis- 6 sioner may deem to be appropriate, such contract shall provide as 7 follows: 8 (a) An estimate of the cost of such project as determined by the 9 commissioner at the time of such contract's execution; 10 (b) An agreement by the commissioner to periodically reimburse the 11 municipality for eligible costs incurred during the progress of such 12 project. Such payments shall be subject to final computation and deter- 13 mination of the total state assistance share of the eligible costs of 14 the entire environmental restoration project; 15 (c) A provision [providing] that if [any federal payments], in accord- 16 ance with the required department approval of any settlement with a 17 responsible party, any responsible party payments[, and/or payments 18 received from the disposition of the real property subject to an envi- 19 ronmental restoration project] become available to the municipality, 20 before, during or after the completion of an environmental restoration 21 project, which were not included when the state share was calculated 22 pursuant to this section, the state assistance share shall be recalcu- 23 lated and the municipality shall pay to the state, for deposit into the 24 environmental restoration project account of the hazardous waste remedi- 25 al fund established under section ninety-seven-b of the state finance 26 law, the difference between the original state assistance payment and 27 the recalculated state share. Recalculation of the state share shall be 28 done each time a [federal payment,] payment from a responsible party[, 29 or payment received from the disposition of such property] is received 30 by the municipality; 31 (d) A provision that if any monies received from [any federal 32 payments, payments from a responsible party, and/or payments received 33 from] the disposition of [such property] the real property subject to an 34 environmental restoration project exceed the municipality's cost of such 35 property, including taxes owed to the municipality upon acquisition, and 36 the municipality's cost of the environmental restoration project, the 37 amount of such excess necessary to reimburse the state of New York for 38 the state assistance provided to the municipality under this title shall 39 be [divided equally between the municipality and the state of New York, 40 the state share of which shall be deposited] paid to the state of New 41 York for deposit into the environmental restoration project account of 42 the hazardous waste remedial fund established under section ninety-sev- 43 en-b of the state finance law; 44 (e) An agreement by the municipality to proceed expeditiously with 45 and complete such project in accordance with plans approved for payment 46 of the municipality's share of such project's cost; 47 (f) An agreement by the municipality that it shall prepare and imple- 48 ment a public participation plan [prior to remedial activities undertak- 49 en pursuant to this section. The] for environmental restoration projects 50 undertaken pursuant to this title. The requirements of the plan will be 51 governed by decision of the municipality to proceed with remediation of 52 the property under this title. However, in all cases, implementation of 53 the plan shall be completed as part of the project. In those cases where   54 the municipality does not intend to proceed with remediation of the 55 property, the plan shall provide timely and accessible disclosure of the 56 results of the investigation to the interested public. The plan shall   S. 6257 116 A. 9759 1 provide for adequate public notice of the availability of the investi- 2 gation results; an opportunity for submission of written comments; and a 3 filing of a notice of the results of the investigation as authorized by 4 subdivision three of section three hundred sixteen-b of the real proper- 5 ty law. Where the municipality intends to proceed with remediation of 6 the property under this title, the plan shall provide opportunities for 7 early, inclusive participation prior to the selection of a preferred 8 course of action, facilitate communication, including dialogue among the 9 municipality, the department, and the interested public, and provide 10 timely and accessible disclosure of information. At a minimum, the 11 design of the plan shall take into account the scope and scale of the 12 proposed environmental restoration remediation project, local interest, 13 and other relevant factors. The plan shall also provide for: adequate 14 public notice of the availability of a draft remedial plan; a forty-five 15 day period for submission of written comments; a public hearing on such 16 plan if substantive issues are raised by members of the affected commu- 17 nity; and technical assistance if so requested by members of the 18 affected community. Provided, however, that the requirements of this 19 subdivision shall not apply to interim remedial measures undertaken as 20 part of an environmental restoration project [to address emergency site 21 conditions]. In such instance, the department or such persons implement- 22 ing the interim remedial measure or making the request shall conduct 23 public participation activities as the department deems necessary and 24 appropriate under such circumstances. 25 (g) An agreement by the municipality that it shall put into place any 26 engineering and/or institutional controls (including deed restrictions) 27 that the department may deem necessary to allow the contemplated use to 28 proceed, that such engineering and/or institutional controls shall be 29 binding on such municipality, any successor in title, and any lessees 30 and that any successors in title and any lessees cannot challenge state 31 enforcement of such controls; 32 (h) In the event that such engineering controls and/or institutional 33 controls are necessary the municipality and its successors in title 34 shall agree to develop a plan which ensures that such engineering and/or 35 institutional controls be continually maintained in the manner required 36 by the department. Such plan shall be approved by the department. Fail- 37 ure to implement the plan or maintain such controls shall constitute a 38 violation of such contract and shall terminate for the duration of such 39 failure the protection afforded under subdivision one of section 56-0509 40 of this title; 41 (i) In the event that deed restrictions are required, such munici- 42 pality shall agree to cause such deed restrictions to be recorded and 43 indexed as declarations of restrictions in the office of the recording 44 officer of the county or counties where the real property subject to 45 such environmental restoration project is located in the manner 46 prescribed by article nine of the real property law. Such declaration of 47 restriction shall contain the name of the owner of record of such prop- 48 erty, along with the tax map parcel number or the section, block, and 49 lot number of such property; and 50 (j) A provision that exempts a municipality and any successor in 51 title, lender, or lessee from the requirement to obtain any state or 52 local permit or other authorization for any activity needed to implement 53 [such] a project [that is conducted on the real property subject to such 54 project so long as] to investigate or remediate hazardous substances 55 pursuant to this title, provided that the activity is conducted in a   S. 6257 117 A. 9759 1 manner which satisfies all substantive technical requirements applicable 2 to like activity conducted pursuant to a permit. 3 § 67. Section 56-0505 of the environmental conservation law, as added 4 by chapter 413 of the laws of 1996, is amended to read as follows: 5 § 56-0505. Environmental restoration projects; criteria. 6 1. The department shall determine the eligibility of an environmental 7 restoration project for state assistance under this title based upon the 8 following criteria: 9 (a) the benefit to the environment realized by the expeditious remedi- 10 ation of the property proposed to be subject to such project; 11 (b) the economic benefit to the state by the expeditious remediation 12 of the property proposed to be subject to such project; and 13 (c) the potential opportunity of the property proposed to be subject 14 to such project to be used for public recreational purposes[; and 15 (d) the opportunity for other funding sources to be available for the 16 remediation of such property, including, but not limited to, enforcement 17 actions against responsible parties (other than the municipality to 18 which state assistance was provided under this title; or a successor in 19 title, lender, or lessee who was not otherwise a responsible party prior 20 to such municipality taking title to the property), state assistance 21 payments pursuant to title thirteen of article twenty-seven of this 22 chapter, and the existence of private parties willing to remediate such 23 property using private funding sources. Highest priority shall be grant- 24 ed to projects for which other such funding sources are not available]. 25 2. The department shall not enter into a contract with a municipality 26 pursuant to section 56-0503 for an environmental restoration project for 27 any site listed in the registry of inactive hazardous waste sites under 28 section 27-1305 of this chapter and given a classification as described 29 in subparagraph one or two of paragraph b of subdivision four of such 30 section 27-1305. 31 3. The remediation objective of an environmental restoration remedi- 32 ation project shall meet the same standard for protection of public 33 health and the environment that applies to remedial actions undertaken 34 pursuant to section 27-1313 of this chapter. 35 4. [After completion of such project, the municipality may use the 36 property for public purposes or may dispose of it. If the municipality 37 shall dispose of such property by sale to a responsible party, such 38 party shall pay to such municipality, in addition to such other consid- 39 eration, an amount of money constituting the amount of state assistance 40 provided to the municipality under this title plus accrued interest and 41 transaction costs and the municipality shall deposit that money into the 42 environmental restoration project account of the hazardous waste remedi- 43 al fund established under section ninety-seven-b of the state finance 44 law] Property may continue to be used for the purpose for which it is 45 being used prior to achievement of the environmental restoration 46 project's objectives if the department determines that the existing 47 state of contamination does not pose a risk sufficient to prohibit such 48 use from continuing, giving due regard to human health and protection, 49 and if the department determines that such use does not interfere with 50 the environmental restoration project. 51 5. In the event that [such] an environmental restoration project's 52 remediation objective shall not have been attained to the department's 53 satisfaction at the time of the municipality's disposition of such prop- 54 erty, such municipality shall be liable to ensure that such objective is 55 attained within the time called for in the state assistance contract.   S. 6257 118 A. 9759 1 6. If the municipality shall dispose of property subject to an envi- 2 ronmental restoration project by sale to a responsible party, such party 3 shall pay to such municipality, in addition to such other consideration, 4 an amount of money constituting the amount of state assistance provided 5 to the municipality under this title plus accrued interest and trans- 6 action costs, which the municipality shall then pay to the state for 7 deposit into the environmental restoration project account of the 8 hazardous waste remedial fund established under section ninety-seven-b 9 of the state finance law. 10 § 68. Section 56-0507 of the environmental conservation law, as added 11 by chapter 413 of the laws of 1996, is amended to read as follows: 12 § 56-0507. Recovery of state assistance. 13 1. A municipality receiving state assistance under this title under- 14 takes an environmental restoration project as agent of the state with 15 respect to the incurrence of eligible costs. 16 2. The state shall make all reasonable efforts to recover the full 17 amount of any state assistance provided under this title through liti- 18 gation brought under this section or other statute or under the common 19 law, or through cooperative agreements, with responsible parties (other 20 than the municipality to which state assistance was provided under this 21 title; or a successor in title, lender or lessee who was not otherwise a 22 responsible party prior to the municipality taking title to such proper- 23 ty). Notwithstanding any requirement under this section, the state may 24 elect not to recover all or any portion of its costs from a party 25 responsible according to applicable principles of statutory or common 26 law liability where such party's liability arises solely from ownership 27 or operation of the subject property subsequent to the disposal of 28 hazardous substances at such property. 29 3. Any and all monies recovered or reimbursed pursuant to this section 30 shall be deposited into the environmental restoration project account of 31 the hazardous waste [remediation] remedial fund established under 32 section ninety-seven-b of the state finance law. 33 § 69. Subdivisions 1, 2, 3 and 5 of section 56-0509 of the environ- 34 mental conservation law, as added by chapter 413 of the laws of 1996, 35 are amended to read as follows: 36 1. (a) Notwithstanding any other provision of law and except as 37 provided in subdivision two of this section and in paragraph (h) of 38 subdivision two of section 56-0503 of this title, the following shall 39 not be liable to the state upon any statutory or common law cause of 40 action, or to any person upon any statutory cause of action arising out 41 of the presence of any hazardous substance in or on property at any time 42 before the effective date of a contract entered into pursuant to this 43 title: 44 (i) a municipality receiving state assistance under this title to 45 undertake an environmental restoration project and complying with the 46 terms and conditions of the contract providing such assistance; and 47 (ii) a successor in title to the real property subject to such project 48 where the municipality holds or held title to the real property; any 49 lessee of such property; and any person that provides financing to such 50 party relative to the remediation, restoration, or redevelopment of such 51 property, provided that such successor in title, lessee, or lender did 52 not generate, arrange for, transport, or dispose, and did not cause the 53 generation, arrangement for, transportation, or disposal of any hazard- 54 ous substance located at such property, and did not own such property. 55 (b) Notwithstanding any other provision of this title, any person 56 seeking the benefit of this subdivision shall bear the burden of proving   S. 6257 119 A. 9759 1 that a cause of action, or any part thereof, is attributable solely to 2 hazardous substances present in or on such parcel before the effective 3 date of such contract. 4 2. [Subdivision one of this section shall not apply to relieve any 5 municipality, successor in title, lessee, or lender from liability aris- 6 ing from:] Any municipality, successor in title, lessee, or lender iden- 7 tified in paragraph (a) of subdivision one of this section shall not 8 receive the liability protections identified in subdivisions one and 9 three of this section where liability results from: 10 (a) failing to implement such project to the department's satisfaction 11 or failing to comply with the terms and conditions of the contract; 12 (b) fraudulently demonstrating that the cleanup levels identified in 13 or to be identified in accordance with such project were reached; 14 (c) causing the release or threat of release at the property subject 15 to such project of any hazardous substance after the effective date of 16 such contract; [or] 17 (d) [changing such property's use from the intended use as identified 18 in the contract pursuant to section 56-0503 to a use requiring a lower 19 level of residual contamination unless the additional remedial activ- 20 ities are undertaken which shall meet the same standard for protection 21 of public health and the environment that applies to remedial actions 22 undertaken pursuant to 27-1313 of this chapter so that such use can be 23 implemented with sufficient protection of public health and the environ- 24 ment.] violating the provisions of section 56-0511 of this title; 25 (e) failing to implement the plan or to implement and maintain the 26 engineering and/or institutional controls required by the department in 27 accordance with paragraph (h) of subdivision two of section 56-0503 of 28 this title; or 29 (f) using property subject to an environmental restoration project in 30 violation of the requirements of this title. 31 3. The state shall indemnify and save harmless any municipality, 32 successor in title, lessee, or lender [indentified] identified in para- 33 graph (a) of subdivision one of this section in the amount of any judg- 34 ment, or settlement, obtained against such municipality, successor in 35 title, lessee or lender in any court for any common law cause of action 36 arising out of the presence of any hazardous substance in or on property 37 at anytime before the effective date of a contract entered into pursuant 38 to this title. Such municipality, successor in title, lessee or lender 39 shall be entitled to representation by the attorney general, unless the 40 attorney general determines, or a court of competent jurisdiction deter- 41 mines, that such representation would constitute a conflict of interest, 42 in which case the attorney general shall certify to the comptroller that 43 such party is entitled to private counsel of its choice, and reasonable 44 attorneys' fees and expenses shall be reimbursed by the state. Any 45 settlement of such an action shall be subject to the approval of the 46 attorney general as to form and amount, and this subdivision shall not 47 apply to any settlement of any such action which has not received such 48 approval. 49 5. In addition to any other powers the department may have, including, 50 but not limited to, the powers set forth in section 56-0517 of this 51 title, the department shall have the authority to periodically inspect 52 [each project site] property to ensure that the use of the property 53 complies with the terms and conditions of [the contract] any engineering 54 and/or institutional controls placed on the property. 55 § 70. Section 56-0511 of the environmental conservation law, as added 56 by chapter 413 of the laws of 1996, is amended to read as follows:   S. 6257 120 A. 9759 1 § 56-0511. Change of use. 2 1. At least sixty days before the start of physical alteration or 3 construction constituting a change of use at a property investigated or 4 remediated under an environmental restoration project, or at least sixty 5 days before a change of use at such a property not involving any phys- 6 ical alteration or construction, as the case may be, the person or enti- 7 ty proposing to make a change of use shall provide written notification 8 to the department and the clerks of the county and other municipalities 9 in which such property is located. 10 2. No person shall engage in any activity at a property investigated 11 or remediated under an environmental restoration project that is not 12 consistent with restrictions placed upon the use of the property, or 13 that will, or that reasonably is anticipated to: prevent or interfere 14 significantly with a proposed, ongoing, or completed project; or expose 15 the public health or the environment to a significantly increased threat 16 of harm or damage [at] from such property. If the commissioner deter- 17 mines that a proposed change of use is prohibited pursuant to this 18 section, he shall, within forty-five days after receipt of the complete 19 notice required by this section, provide the person giving such notice 20 with a written determination that such change of use will not be author- 21 ized, together with the reasons for such determination. 22 3. For the purposes of this section: 23 (i) "change of use" means the transfer of title to all or part of 24 property subject to an environmental restoration [agreement] project, 25 the erection of any structure on such property, [the paving of such 26 property for use as a roadway or parking lot,] and the creation of a 27 park or other public or private recreational facility on such property, 28 or any activity that is likely to disrupt or expose hazardous substances 29 or to increase direct human exposure; or any other conduct that will or 30 may tend to significantly interfere with an ongoing or completed envi- 31 ronmental restoration project. "Change of use" shall not include a 32 transfer of property where physical alteration of the property subject 33 to an environmental restoration project is not contemplated. In the case 34 of title transfers with no physical alteration of property subject to an 35 environmental restoration project, owners of property shall provide 36 notice of proposed transfers of title within a reasonable time in 37 advance of the transfer. 38 (ii) "complete notice" means a notice that adequately apprises the 39 department of the contemplated physical alteration of the property and 40 how such alteration may affect the property's proposed, ongoing, or 41 completed [remediation] project, or of the proposed new owner's ability 42 to implement the engineering and institutional controls associated with 43 the [property's remediation] property. 44 § 71. The environmental conservation law is amended by adding three 45 new sections 56-0513, 56-0515 and 56-0517 to read as follows: 46 § 56-0513. Immunity. 47 Section eight of the court of claims act or any other provision of law 48 to the contrary notwithstanding, the state shall be immune from liabil- 49 ity and action with respect to any act or omission done in the discharge 50 of the department's responsibilities pursuant to this title; provided, 51 however, that this section shall not limit the liability which may 52 otherwise exist for the unlawful, willful or malicious acts or omissions 53 on the part of the state, state agencies, or their officers, employees 54 or agents; or for the ownership or responsibility for the disposal of 55 hazardous substances according to law. 56 § 56-0515. Permit waivers.   S. 6257 121 A. 9759 1 The department, by and through the commissioner, shall be authorized 2 to exempt a person from the requirement to obtain any state or local 3 permit or other authorization for any activity needed to implement a 4 project to investigate or remediate hazardous substances pursuant to 5 this title; provided, that the activity is conducted in a manner which 6 satisfies all substantive technical requirements applicable to like 7 activity conducted pursuant to a permit. 8 § 56-0517. Access to sites. 9 The department, by and through the commissioner, shall be authorized 10 to: 11 1. Require that any person permit a duly designated officer or employ- 12 ee of the department or of a municipal corporation, or any agent, 13 consultant or contractor of the department or of a municipal corpo- 14 ration, or any other person, including an employee, agent, consultant or 15 contractor of a responsible person acting at the direction of the 16 department, so authorized in writing by the commissioner, to enter upon 17 any property which has or may have hazardous substance on such property, 18 and/or areas near such property, for the following purposes: 19 (a) To inspect and take samples of such hazardous substance and/or 20 environmental media, utilizing such sampling methods as may be necessary 21 or appropriate including without limitation soil borings and monitoring 22 wells; provided, that no sampling methods involving the substantial 23 disturbance of the ground surface of such property may be utilized until 24 after a minimum of ten days' written notice thereof shall have been 25 provided to the owner and operator and occupant of such property, if 26 identifiable by reasonable efforts, unless the commissioner makes a 27 written determination that such notice will not allow the protection of 28 the public health or the environment, in which case two days' written 29 notice shall be sufficient; 30 (b) To implement the cleanup, removal, remediation or restoration of 31 hazardous substances and/or environmental media; provided, that no such 32 work may be undertaken until after a minimum of ten days' written notice 33 thereof shall have been provided to the owner and operator and occupant 34 of such property, if identifiable by reasonable efforts, unless the 35 commissioner makes a written determination that such notice will not 36 allow the protection of the public health or the environment, in which 37 case two days' written notice shall be sufficient. 38 2. (a) Require that any person furnish to the department, in a form 39 and manner as prescribed by the department, information relating to the 40 current and past hazardous substance generation, treatment, storage, 41 disposal and/or transportation activities of such person or any other 42 person now or formerly under the control of such person; in the event 43 such person cannot comply therewith, in whole or in part, such person 44 shall furnish to the department information describing all efforts made 45 by such person to comply therewith; any information so furnished to the 46 department shall be considered a "written instrument" as defined in 47 subdivision three of section 175.00 of the penal law; 48 (b) Require that any person permit a duly designated officer or 49 employee of the department at all reasonable times to have access to and 50 to copy all books, papers, documents and records relating to the current 51 and past hazardous substance generation, treatment, storage, disposal 52 and/or transportation activities of such person or any person now or 53 formerly under the control of such person; 54 (c) Require, by subpoena issued in the name of the department, the 55 production of books, papers, documents and other records, and the rendi- 56 tion of testimony by deposition under oath of any person relating to the   S. 6257 122 A. 9759 1 current and past hazardous substance generation, treatment, storage, 2 disposal and/or transportation activities of such person or any person 3 now or formerly under the control of such person; such subpoenas and 4 depositions shall be regulated by the civil practice law and rules; the 5 commissioner may invoke the powers of the supreme court of the state of 6 New York to compel compliance therewith. 7 § 72. Subdivision 2 of section 97-b of the state finance law, as 8 amended by chapter 413 of the laws of 1996, is amended to read as 9 follows: 10 2. Such fund shall consist of all of the following: 11 (a) moneys appropriated for transfer to the fund's site investigation 12 and construction account; (b) all fines and other sums accumulated in 13 the fund prior to April first, nineteen hundred eighty-eight pursuant to 14 section 71-2725 of the environmental conservation law for deposit in the 15 fund's site investigation and construction account; (c) all moneys 16 collected or received by the department of taxation and finance pursuant 17 to section 27-0923 of the environmental conservation law for deposit in 18 the fund's industry fee transfer account; (d) all moneys paid into the 19 fund pursuant to section 72-0201 of the environmental conservation law 20 which shall be deposited in the fund's industry fee transfer account; 21 (e) all moneys paid into the fund pursuant to section one hundred eight- 22 y-six of the navigation law which shall be deposited in the fund's 23 industry fee transfer account; (f) all moneys paid into the fund by 24 municipalities for repayment of landfill closure loans made pursuant to 25 former title five of article fifty-two of the environmental conservation 26 law for deposit in the fund's site investigation and construction 27 account; (g) all monies recovered under [section] sections 56-0503, 28 56-0505 and 56-0507 of the environmental conservation law for deposit 29 into the fund's environmental restoration project account; and (h) other 30 moneys credited or transferred thereto from any other fund or source for 31 deposit in the fund's site investigation and construction account. 32 § 73. This act shall take effect immediately, provided that sections 33 one, thirty-six, thirty-seven, thirty-eight, thirty-nine, forty-one, 34 forty-two, forty-three, forty-four, forty-five, sixty-four, sixty-five, 35 sixty-six, sixty-seven, sixty-eight, sixty-nine, seventy, seventy-one 36 and seventy-two of this act shall take effect April 1, 2002; provided, 37 however, if this act shall become a law after such date it shall take 38 effect immediately and shall be deemed to have been in full force and 39 effect on and after April 1, 2002, and provided further that sections 40 forty-six, forty-seven, forty-eight, fifty, fifty-five and fifty-six of 41 this act shall apply to taxable years beginning on or after January 1, 42 2003, but only to site costs incurred and property placed in service on 43 or after January 1, 2002; provided that sections fifty-seven, fifty- 44 eight, fifty-nine, sixty-one, sixty-two and sixty-three of this act 45 shall apply to tax years beginning on or after January 1, 2004. 46 Provided further that the IMB credit for energy taxes under subsection 47 (t-1) of section 606 of the tax law referenced in sections forty-nine 48 and sixty of this act shall apply to taxable years commencing on and 49 after January 1, 2002 and shall expire on the same date as provided in 50 subdivision (a) of section 49 of part Y of chapter 63 of the laws of 51 2000. Provided further, subdivisions 13 and 14 of section 97-b of the 52 state finance law, as designated by section thirty-six of this act, 53 shall be deemed repealed effective April first of the state fiscal year 54 following the certification provided for in subdivision 15 of such 55 section 97-b; and provided further that the state comptroller shall 56 notify the legislative bill drafting commission upon the occurrence of   S. 6257 123 A. 9759 1 the certification provided for in subdivision 15 of section 97-b of the 2 state finance law in order that the commission may maintain an accurate 3 and timely effective data base of the official text of the laws of the 4 state of New York in furtherance of effecting the provisions of section 5 44 of the legislative law and section 70-b of the public officers law. 6 PART K 7 Section 1. Chapter 174 of the laws of 1990, constituting the youth 8 opportunity program act, is REPEALED. 9 § 2. This act shall take effect April 1, 2002; provided, however, if 10 this act shall become a law after such date it shall take effect imme- 11 diately and shall be deemed to have been in full force and effect on and 12 after April 1, 2002. 13 § 2. Severability clause. If any clause, sentence, paragraph, subdivi- 14 sion, section or part of this act shall be adjudged by any court of 15 competent jurisdiction to be invalid, such judgment shall not affect, 16 impair, or invalidate the remainder thereof, but shall be confined in 17 its operation to the clause, sentence, paragraph, subdivision, section 18 or part of this act directly involved in the controversy in which the 19 judgment shall have been rendered. 20 § 3. This act shall take effect immediately provided, however, that 21 the applicable effective date of Parts A through K of this act shall be 22 as specifically set forth in the last section of such Parts.

Memorandum in Support