Bill - 2003-04 TED


              STATE OF NEW YORK
       ________________________________________________________________________
 
           S. 1409                                                  A. 2109
 
              SENATE - ASSEMBLY
 
                                   January 29, 2003
                                      ___________
 
       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 appropriate monies for transportation projects and costs; to
         amend chapter 329 of the laws of 1991 amending the state  finance  law
         and  other laws relating to the establishment of the dedicated highway
         and bridge trust fund; to amend chapter 61 of the laws of 2000  amend-
         ing  the  public  authorities  law and chapter 329 of the laws of 1991
         amending the state finance law and other laws relating to  the  estab-
         lishment  of  the dedicated highway and bridge trust fund, in relation
         to the authorization of  the  state's  five-year  transportation  plan
         (Part A); to amend chapter 3 of the laws of 2002, amending the vehicle
         and traffic law relating to reducing the blood alcohol level threshold
         for  determination  of intoxication, in relation to the effective date
         of such chapter (Part B); to amend the vehicle  and  traffic  law,  in
         relation  to  special  hauling  permits and divisible load permits and
         repealing certain provisions of such law relating thereto (Part C); to
         repeal section 8 of chapter 533 of the laws of 1993 amending the vehi-
         cle and traffic law and the correction law relating to the  suspension
         and  revocation  of driver's licenses upon conviction of certain drug-
         related offenses, and to repeal section 28 of part E of chapter 58  of
         the  laws  of  1998  relating  to a report of the division of criminal
         justice services, in relation to  the  suspension  and  revocation  of
         drivers'  licenses  upon  conviction of certain drug-related offenses,
         and to amend section 9 of chapter 533 of the laws  of  1993,  amending
         the  vehicle  and  traffic  law and the correction law relating to the
         suspension and revocation of  driver's  licenses  upon  conviction  of
         certain drug-related offenses, in relation to the effectiveness there-
         of  (Part  D);  to  amend  the  public authorities law, in relation to
         authorization of an increased voluntary contribution by the  New  York
         power  authority  (Part  E);  to  amend the public authorities law, in
         relation to indebtedness  of  the  battery  park  city  authority  and
         providing for the repeal of certain provisions upon expiration thereof
 
        EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD12113-01-3
       S. 1409                             2                            A. 2109
 
         (Part  F);  to  authorize  the dormitory authority of the State of New
         York to provide funding for the Cornell University theory center (Part
         G); relating to contracts with  neighborhood  and  rural  preservation
         companies  (Part  H);  to  amend  the racing, pari-mutuel wagering and
         breeding law, in relation to the payment of regulatory fees,  revising
         the amounts retained on wagers, expanding simulcast wagering and phone
         betting;  to  amend the state finance law, in relation to establishing
         the racing regulation account; to repeal sections 905-a and 906 of the
         racing, pari-mutuel wagering and breeding  law,  relating  to  certain
         on-track wagers; and to repeal subdivisions 6 and 7 of section 1007 of
         the racing, pari-mutuel wagering and breeding law, relating to certain
         simulcasts  track  to track (Part I); to amend the public service law,
         in relation to the deposit of moneys to the general fund; to amend the
         general business law, in relation to the  deposit  of  moneys  to  the
         general  fund;  and  to repeal certain provisions of the state finance
         law  relating thereto (Part J); to amend the agriculture  and  markets
         law,  in  relation  to  establishing  and  increasing certain fees and
         requiring the registration of certain food establishments (Part K); to
         amend the public authorities law, in relation to  the  assessment  and
         reimbursement of State expenditures (Part L); to amend the vehicle and
         traffic  law,  in  relation  to  vessel registration fees (Part M); to
         authorize the urban development corporation to issue bonds  (Part  N);
         to  amend  chapter 393 of the laws of 1994 amending the New York state
         urban development corporation act, in relation  to  the  effectiveness
         thereof (Part O); to provide for the utilization of utility assessment
         funds  (Part  P);  to  amend  the  environmental  conservation law, in
         relation to mined land reclamation fees (Part Q); to provide  for  the
         transfer  of moneys from the New York state energy research and devel-
         opment authority (Part R); to provide for the utilization  of  utility
         assessment  funds  (Part  S);  to amend the environmental conservation
         law, in relation to oil, gas and solution mining regulation and recla-
         mation fees (Part T); to amend the state finance law and the  environ-
         mental  conservation  law,  in  relation to expanding the purposes for
         which the environmental protection fund can be used; and  in  relation
         to  municipal  landfill closure projects and state assistance payments
         for beneficial end-uses and landfill gas  management  systems  and  to
         provide   state  assistance  for  municipal  landfill  gas  management
         projects at active landfills; and to repeal certain provisions of  the
         state  finance  law  relating  thereto (Part U); to amend the environ-
         mental conservation law, in relation to increasing certain fees  (Part
         V);  to  amend  the vehicle and traffic law, the tax law and the state
         finance law, in relation to increasing certain  motor  vehicle  trans-
         action fees and to repeal section 91 of the state finance law relating
         to  the  transportation safety account (Part W); to amend the environ-
         mental conservation law and the vehicle and traffic law,  in  relation
         to  enacting the waste tire management and recycling act of 2003 (Part
         X); to amend the environmental conservation law, the vehicle and traf-
         fic law and the state finance law, in relation to heavy  duty  vehicle
         emissions  violations  and  to  amend chapter 621 of the laws of 1998,
         amending the environmental conservation law,  the  public  authorities
         law, the state finance law, the transportation law and the vehicle and
         traffic  law  relating  to  heavy duty vehicle emissions reduction, in
         relation to the effectiveness thereof (Part Y); to amend the  environ-
         mental  conservation  law,  the agriculture and markets law, the state
         finance law, and the highway law, in  relation  to  the  Hudson  River
         Valley  Greenway  and repealing sections 44-0111, 44-0113, and 44-0117
       S. 1409                             3                            A. 2109
 
         of the environmental conservation law relating to the Greenway  herit-
         age conservancy for the Hudson river valley (Part Z); and to amend the
         civil  practice  law  and  rules,  in  relation to the commencement of
         certain  causes of action by the state arising under the environmental
         conservation law; to amend  the  environmental  conservation  law,  in
         relation  to  water  pollution,  waste,  inactive hazardous waste site
         remediation, soil cleanup  levels,  the  voluntary  cleanup  act,  the
         implementation  of  the  clean  water/clean  air  bond  act  of  1996,
         violations of article 27 of such law, protection of natural resources,
         environmental regulatory program fees; to amend the general  municipal
         law,  in  relation  to  state  assistance for brownfield redevelopment
         planning; to amend the navigation law, in relation to liability exclu-
         sions in connection with oil spill prevention,  control,  and  compen-
         sation,  in  relation  to the disposition of certain monies of the New
         York environmental protection and spill compensation fund, in relation
         to providing for an audit thereof, and in relation to settlements;  to
         amend  the  public authorities law, in relation to hazardous waste and
         inactive hazardous waste disposal sites for purposes of the  New  York
         state environmental facilities corporation; to amend the public health
         law,  in relation to inactive hazardous waste disposal sites; to amend
         the real property law, in relation to recording  certain  instruments;
         to  amend  the  real  property  tax law, in relation to exemption from
         taxation, in certain  cases;  to  amend  the  state  finance  law,  in
         relation to the hazardous waste remedial fund and the remedial program
         transfer  fund;  to  amend chapter 83 of the laws of 1995 amending the
         state finance law and other laws relating to bonds, notes  and  reven-
         ues,  in  relation  to making certain provisions thereof permanent; to
         repeal section 27-1316 of the environmental conservation law  relating
         to  a  hazardous  substance  waste  disposal site study; and to repeal
         section 1389-e of the  public  health  law  relating  to  a  hazardous
         substance waste disposal site study (Part AA)
 
         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 2003-2004
    3  state  fiscal  year.    Each component is wholly contained within a Part
    4  identified as Parts A through AA. The effective date for each particular
    5  provision contained within such Part is set forth in the last section of
    6  such Part. Any provision in any section contained within a Part, includ-
    7  ing the effective date of the Part, which makes reference to  a  section
    8  "of  this  act", when used in connection with that particular component,
    9  shall be deemed to mean and refer to the corresponding  section  of  the
   10  Part  in  which  it  is  found. Section three of this act sets forth the
   11  general effective date of this act.
 
   12                                   PART A
 
   13    Section 1.  The sum of two hundred  eighty-one  million  four  hundred
   14  eighty-eight  thousand  dollars  ($281,488,000),  or  so much thereof as
   15  shall be necessary, and in addition to amounts  previously  appropriated
   16  by  law,  is  hereby made available, in accordance with subdivision 1 of
   17  section 380 of the public authorities law as amended, according  to  the
   18  following  schedule.    Payments  pursuant  to  subdivision  (a) of this
       S. 1409                             4                            A. 2109
 
    1  section shall be made available as  moneys  become  available  for  such
    2  payments.  Payments pursuant to subdivisions (b) and (c) of this section
    3  shall be made available on the fifteenth day of June, September,  Decem-
    4  ber  and March or as soon thereafter as moneys become available for such
    5  payments. No moneys of the state in the state treasury  or  any  of  its
    6  funds shall be available for payments pursuant to this section:
    7                                  SCHEDULE
    8    (a)  Thirty-nine  million seven hundred thousand dollars ($39,700,000)
    9  to municipalities for repayment of eligible costs of federal aid munici-
   10  pal street and highway projects pursuant to section 15 of chapter 329 of
   11  the laws of 1991, as added by section 9 of chapter 330 of  the  laws  of
   12  1991,  as  amended.  The department of transportation shall provide such
   13  information to the municipalities as may be necessary  to  maintain  the
   14  federal  tax  exempt  status  of  any bonds, notes, or other obligations
   15  issued by such municipalities to provide for the  non-federal  share  of
   16  the  cost  of  projects  pursuant  to chapter 330 of the laws of 1991 or
   17  section 80-b of the highway law.
   18    (b) Two  hundred  seventeen  million  nine  hundred  thousand  dollars
   19  ($217,900,000) to counties, cities, towns and villages for reimbursement
   20  of  eligible  costs  of  local  highway  and bridge projects pursuant to
   21  sections 16 and 16-a of chapter 329 of the laws of  1991,  as  added  by
   22  section  9  of  chapter  330  of  the  laws of 1991, as amended. For the
   23  purposes of computing allocations to municipalities, the amount distrib-
   24  uted pursuant to section 16 of chapter 329 of the laws of 1991 shall  be
   25  deemed  to  be $114,188,000.  The amount distributed pursuant to section
   26  16-a of chapter  329  of  the  laws  of  1991  shall  be  deemed  to  be
   27  $103,712,000.   Notwithstanding the provisions of any general or special
   28  law, the amounts deemed distributed in accordance  with  section  16  of
   29  chapter  329  of the laws of 1991 shall be adjusted so that such amounts
   30  will not be less than 78.750 percent of the "funding level"  as  defined
   31  in  subdivision 5 of section 10-c of the highway law for each such muni-
   32  cipality. In order to achieve the objectives of section  16  of  chapter
   33  329  of the laws of 1991, to the extent necessary, the amounts in excess
   34  of 78.750 percent of the funding level to be deemed distributed to  each
   35  municipality  under  this  subdivision shall be reduced in equal propor-
   36  tion.
   37    (c) Twenty-three million eight hundred eighty-eight  thousand  dollars
   38  ($23,888,000)  to  municipalities for reimbursement of eligible costs of
   39  local highway and bridge projects pursuant to sections 16  and  16-a  of
   40  chapter 329 of the laws of 1991, as added by section 9 of chapter 330 of
   41  the  laws of 1991, as amended. For the purposes of computing allocations
   42  to municipalities, the amount distributed  pursuant  to  section  16  of
   43  chapter  329  of the laws of 1991 shall be deemed to be $30,812,000. The
   44  amount distributed pursuant to section 16-a of chapter 329 of  the  laws
   45  of   1991  shall  be  deemed  to  be  $27,985,000.  Notwithstanding  the
   46  provisions of any general or special law, the amounts deemed distributed
   47  in accordance with section 16 of chapter 329 of the laws of  1991  shall
   48  be adjusted so that such amounts will not be less than 21.250 percent of
   49  the  "funding  level" as defined in subdivision 5 of section 10-c of the
   50  highway law for each such municipality. In order to achieve  the  objec-
   51  tives  of  section  16 of chapter 329 of the laws of 1991, to the extent
   52  necessary, the amounts in excess of 21.250 percent of the funding  level
   53  to be deemed distributed to each municipality under this paragraph shall
   54  be  reduced  in  equal  proportion.  Finally, amounts deemed distributed
   55  under this paragraph shall not be paid to counties or the  city  of  New
   56  York.    To  the  extent that the total of remaining payment allocations
       S. 1409                             5                            A. 2109
 
    1  calculated herein varies from $23,888,000, the payment amounts  to  each
    2  locality  shall  be  adjusted  by a uniform percentage so that the total
    3  payments equal $23,888,000.
    4    § 2. Subdivision (b) of section 11 of chapter 329 of the laws of 1991,
    5  amending the state finance law and other laws relating to the establish-
    6  ment  of  the  dedicated  highway  and  bridge trust fund, as amended by
    7  section 2 of part C of chapter 84 of the laws of  2002,  is  amended  to
    8  read as follows:
    9    (b) Any service contract or contracts for projects authorized pursuant
   10  to  sections  10-c,  10-f,  10-g and 80-b of the highway law and section
   11  14-k of the transportation law, and entered into pursuant to subdivision
   12  (a) of this section, shall provide  for  state  commitments  to  provide
   13  annually  to  the  thruway  authority a sum or sums, upon such terms and
   14  conditions as shall be deemed appropriate by the director of the budget,
   15  to fund, or fund the debt service requirements of any bonds or any obli-
   16  gations of the thruway authority issued to fund such projects  having  a
   17  cost  not in excess of [$3,811.44] $3,835.33 million cumulatively by the
   18  end of fiscal year 2004-05.
   19    § 3. Section 3 of part K of chapter 61 of the laws of  2000,  amending
   20  the  public authorities law and chapter 329 of the laws of 1991 amending
   21  the state finance law and other laws relating to  the  establishment  of
   22  the  dedicated highway and bridge trust fund, as amended by section 3 of
   23  part C of chapter 84 of the laws of 2002, is amended to read as follows:
   24    § 3. The sum of two hundred fifty-seven million six  hundred  thousand
   25  dollars ($257,600,000), or so much thereof as shall be necessary, and in
   26  addition  to  amounts  previously  appropriated  by  law, is hereby made
   27  available, in accordance with subdivision 1 of section 380 of the public
   28  authorities  law  as  amended,  according  to  the  following  schedule.
   29  Payments  pursuant  to  subdivision  (a)  of  this section shall be made
   30  available as moneys become available for such payments. Payments  pursu-
   31  ant  to  subdivision  (b) of this section shall be made on the fifteenth
   32  day of June, September, December and March  or  as  soon  thereafter  as
   33  moneys become available for such payments. No moneys of the state in the
   34  state  treasury  or  any  of  its  funds shall be available for payments
   35  pursuant to this section:
   36                                  SCHEDULE
   37    (a) Thirty-nine million seven hundred thousand  dollars  ($39,700,000)
   38  to municipalities for repayment of eligible costs of federal aid munici-
   39  pal street and highway projects pursuant to section 15 of chapter 329 of
   40  the  laws  of  1991, as added by section 9 of chapter 330 of the laws of
   41  1991, as amended.  The department of transportation shall  provide  such
   42  information  to  the  municipalities as may be necessary to maintain the
   43  federal tax exempt status of any  bonds,  notes,  or  other  obligations
   44  issued  by  such  municipalities to provide for the non-federal share of
   45  the cost of projects pursuant to chapter 330 of  the  laws  of  1991  or
   46  section 80-b of the highway law.
   47    The  program  authorized  pursuant to section 15 of chapter 329 of the
   48  laws of 1991, as added by section 9 of chapter 330 of the laws of  1991,
   49  as amended, shall additionally make payments for reimbursement according
   50  to the following schedule:
   51                 State Fiscal Year             Amount
   52                 2001-02                       $39,700,000
   53                 2002-03                       $39,700,000
   54                 2003-04                       $39,700,000
   55                 2004-05                       $39,700,000
       S. 1409                             6                            A. 2109
 
    1    (b)  Two  hundred  seventeen  million  nine  hundred  thousand dollars
    2  ($217,900,000) to counties, cities, towns and villages for reimbursement
    3  of eligible costs of local  highway  and  bridge  projects  pursuant  to
    4  sections  16  and  16-a  of chapter 329 of the laws of 1991, as added by
    5  section  9  of  chapter  330  of  the  laws of 1991, as amended. For the
    6  purposes of computing allocations to municipalities, the amount distrib-
    7  uted pursuant to section 16 of chapter 329 of the laws of 1991 shall  be
    8  deemed  to  be $114,188,000.  The amount distributed pursuant to section
    9  16-a of chapter  329  of  the  laws  of  1991  shall  be  deemed  to  be
   10  $103,712,000.  Notwithstanding  the provisions of any general or special
   11  law, the amounts deemed distributed in accordance  with  section  16  of
   12  chapter  329  of the laws of 1991 shall be adjusted so that such amounts
   13  will not be less than 78.750 percent of the "funding level"  as  defined
   14  in  subdivision 5 of section 10-c of the highway law for each such muni-
   15  cipality. In order to achieve the objectives of section  16  of  chapter
   16  329  of the laws of 1991, to the extent necessary, the amounts in excess
   17  of 78.750 percent of the funding level to be deemed distributed to  each
   18  municipality under this paragraph shall be reduced in equal proportion.
   19    The program authorized pursuant to sections 16 and 16-a of chapter 329
   20  of the laws of 1991, as added by section 9 of chapter 330 of the laws of
   21  1991,  as  amended,  shall  additionally make payments for reimbursement
   22  according to the following schedule:
   23                 State Fiscal Year             Amount
   24                 2001-02                       $217,900,000
   25                 2002-03                       $241,788,000
   26                 2003-04                       [$217,900,000] $241,788,000
   27                 2004-05                       $217,900,000
   28    § 4. This act shall take effect April 1, 2003; provided,  however,  if
   29  this  act  shall become a law after such date it shall take effect imme-
   30  diately and shall be deemed to have been in full force and effect on and
   31  after April 1, 2003.
 
   32                                   PART B
 
   33    Section 1. Section 5 of chapter 3 of the laws  of  2002  amending  the
   34  vehicle  and  traffic  law  relating to reducing the blood alcohol level
   35  threshold for determination  of  intoxication  is  amended  to  read  as
   36  follows:
   37    §  5.  This  act  shall take effect [on the first day of November next
   38  succeeding the date on which it shall have become a law] July  1,  2003,
   39  provided,  however,  that  the amendments to clauses a and b of subpara-
   40  graph 7 of paragraph (e) of subdivision 2 of section 1193 of the vehicle
   41  and traffic law made by section three of this act shall not  affect  the
   42  repeal of such subparagraph and shall be deemed repealed therewith.
   43    § 2. This act shall take effect immediately.
 
   44                                   PART C
 
   45    Section 1. Paragraph (a) of subdivision 15 of section 385 of the vehi-
   46  cle  and  traffic law, as amended by chapter 659 of the laws of 1995, is
   47  amended to read as follows:
   48    (a) The commissioner of transportation is hereby authorized to contin-
   49  ue to grant permits, and to charge fees therefor, for the  operation  or
   50  movement  of  a  vehicle  or  combination  of vehicles having weights or
   51  dimensions which exceed the limitations provided  for  in  this  section
   52  upon  any  highway  under his or her jurisdiction except in any city not
       S. 1409                             7                            A. 2109
 
    1  wholly included within one county.  Such  permits  shall  be  issued  in
    2  accordance  with  the  terms and conditions contained in rules and regu-
    3  lations governing special hauling permits which have been  or  shall  be
    4  promulgated by the commissioner of transportation and which may include,
    5  but  not  be  limited to, a requirement that a vehicle or combination of
    6  vehicles being issued a permit shall  be  accompanied  by  one  or  more
    7  escort  vehicles which is being operated by an individual having a valid
    8  escort certificate issued  by  the  commissioner.  The  commissioner  of
    9  transportation is authorized to promulgate rules and regulations govern-
   10  ing  the  operation, use and equipment of escort vehicles and the duties
   11  and responsibilities of the operator of an escort vehicle.  Any  finding
   12  by  the  commissioner  of transportation that an individual has violated
   13  such rules and regulations shall be grounds for the cancellation  of  an
   14  individual's escort certificate and a penalty not to exceed five hundred
   15  dollars  per  occurrence  for  the first violation and not to exceed one
   16  thousand dollars per occurrence for each subsequent violation. Prior  to
   17  issuing  such a finding, the commissioner of transportation shall afford
   18  an individual the right to a hearing pursuant  to  section  one  hundred
   19  forty-five  of the transportation law.  Such rules and regulations shall
   20  take into consideration, but shall not be limited to, the safety of  the
   21  traveling public and the protection of the highways and the environment.
   22  Such  rules  and regulations shall also contain a schedule of fees to be
   23  charged for the issuance of such permits which  fees  shall  cover,  but
   24  shall  not  be limited to, the costs to the department of transportation
   25  for the administration of the  permit  program,  and  shall  permit  the
   26  commissioner  of  transportation  to  levy  a  surcharge of up to twenty
   27  dollars for the issuance and distribution of special hauling permits  at
   28  regional offices of the department of transportation. The annual vehicle
   29  fee  for a permit issued pursuant to subparagraphs (i), (ii), (ii-a) and
   30  (iii) of paragraph (f) of this subdivision shall be three hundred  sixty
   31  dollars  for  vehicles  with  less  than five axles [and], seven hundred
   32  fifty dollars for vehicles with  five  or  [more]  six  axles  and  nine
   33  hundred dollars for vehicles with seven or more axles.  The annual vehi-
   34  cle  fee  for  a  permit issued pursuant to subparagraphs (iv), (v), and
   35  (vi) of paragraph (f) of this subdivision shall be four  hundred  eighty
   36  dollars  for vehicles with less than five axles and one thousand dollars
   37  for vehicles with five or more axles.   Additionally,  the  commissioner
   38  shall  establish  a  fee  schedule for the permitting of extra non-power
   39  combination units that may not exceed twenty-five  dollars  per  vehicle
   40  and may offer discounts for multi-trailer registrations. Such fees shall
   41  not  be charged to municipalities in this state. If the permit has rout-
   42  ing requirements, such rules and regulations shall provide that  if  the
   43  routing  anticipates  the  use of highways not under the jurisdiction of
   44  the commissioner of transportation, then he  or  she  shall  immediately
   45  notify the municipality or municipalities, having jurisdiction over such
   46  highway  that  an application for a permit has been received and request
   47  comment thereon.   Said municipality or municipalities  shall  not  have
   48  less than fifteen days to comment. Such rules and regulations shall also
   49  contain  any  other requirements deemed necessary by the commissioner of
   50  transportation.
   51    § 2. Paragraph (f) of subdivision 15 of section 385 of the vehicle and
   52  traffic law, as amended by chapter 656 of the laws of 1993 and the open-
   53  ing paragraph as amended by chapter 83 of the laws of 2000,  is  amended
   54  to read as follows:
   55    (f)  The department of transportation, or other issuing authority, may
   56  issue an annual permit for a vehicle designed and constructed  to  carry
       S. 1409                             8                            A. 2109
 
    1  loads  that  are  not  of one piece or item, which is registered in this
    2  state.  Motor carriers having apportioned vehicles registered under  the
    3  international  registration  plan  must  either  have  a currently valid
    4  permit at the time this provision becomes effective or shall have desig-
    5  nated New York as its base state or one of the eligible jurisdictions of
    6  operation  under  the  international  registration  plan  in order to be
    7  eligible to receive a permit issued pursuant to subparagraph  (i)  [or],
    8  (ii) or (ii-a) of this paragraph.
    9    No vehicle or combination of vehicles issued a permit pursuant to this
   10  paragraph  shall  cross a bridge designated as an R-posted bridge by the
   11  commissioner of transportation or any  other  permit  issuing  authority
   12  absent  a determination by such commissioner or permit issuing authority
   13  that  the  permit  applicant  has  demonstrated  special   circumstances
   14  warranting  the  crossing of such bridge or bridges and that such bridge
   15  or bridges may be crossed safely, provided, however, that  in  no  event
   16  shall  a  vehicle  or combination of vehicles issued a permit under this
   17  paragraph be permitted to cross  a  bridge  designated  as  an  R-posted
   18  bridge  if  such  vehicle or combination of vehicles has a maximum gross
   19  weight exceeding one hundred two thousand pounds.
   20    No vehicle having a model year of two thousand five or newer shall  be
   21  issued  a  permit  pursuant  to  this paragraph unless each axle of such
   22  vehicle or combination of vehicles, other than  steerable  or  trackable
   23  axles,  is  equipped  with  two  tires on each side of the axle, any air
   24  pressure controls for lift axles are located  outside  the  cab  of  the
   25  vehicle and are beyond the reach of occupants of the cab while the vehi-
   26  cle  is  in  motion,  the weight on any grouping of two or more axles is
   27  distributed such that no axle in the grouping carries less  than  eighty
   28  percent  of  any  other  axle  in  the grouping and any liftable axle is
   29  steerable or trackable; and, further provided,  after  December  thirty-
   30  first, two thousand thirteen, no permit shall be issued pursuant to this
   31  paragraph to a vehicle of any model year that does not meet the require-
   32  ments of this provision.
   33    A divisible load permit may only be transferred to a replacement vehi-
   34  cle  by the same registrant or transferred with the permitted vehicle as
   35  part of the sale or transfer of the permit holder's business; or, if the
   36  divisible load permit is issued pursuant to subparagraph  (iv),  (v)  or
   37  (vi) of this paragraph and has been effective for the five years preced-
   38  ing  a  transfer  of such permit, the permit may be transferred with the
   39  permitted vehicle in the sale of the permitted vehicle to the holder  of
   40  a permit issued pursuant to subparagraph (iv), (v) or (vi) of this para-
   41  graph.
   42    If  a  permit  holder operates a vehicle or combination of vehicles in
   43  violation of any posted weight restriction, the permit  issued  to  such
   44  vehicle  or  combination of vehicles shall be deemed void as of the next
   45  day and shall not be reissued for a period of twelve calendar months.
   46    Until June thirtieth,  nineteen  hundred  ninety-four,  no  more  than
   47  sixteen  thousand  power  units  shall  be  issued annual permits by the
   48  department for any twelve-month period in  accordance  with  this  para-
   49  graph.  After June thirtieth, nineteen hundred ninety-four, no more than
   50  sixteen thousand five hundred power units shall be issued annual permits
   51  by the department for any twelve-month period.  After  December  thirty-
   52  first,  nineteen  hundred  ninety-five,  no more than seventeen thousand
   53  power units shall be issued annual permits by  the  department  for  any
   54  twelve-month  period.  After December thirty-first, two thousand two, no
   55  more than twenty-one thousand power units shall be issued annual permits
   56  by the department for any twelve-month period.  After  December  thirty-
       S. 1409                             9                            A. 2109
 
    1  first,  two  thousand four, no more than twenty-two thousand power units
    2  shall be issued annual permits by the department  for  any  twelve-month
    3  period.    After  December thirty-first, two thousand five, no more than
    4  twenty-three  thousand power units shall be issued annual permits by the
    5  department for any twelve-month period. After December thirty-first, two
    6  thousand six, no more than twenty-four thousand  power  units  shall  be
    7  issued  annual  permits  by  the department for any twelve-month period.
    8  After December thirty-first, two thousand seven, no  more  than  twenty-
    9  five  thousand power units shall be issued annual permits by the depart-
   10  ment for any twelve-month period.
   11    Whenever permit application requests exceed permit  availability,  the
   12  department  shall  renew  annual permits that have been expired for less
   13  than four years which meet program requirements, and  then  shall  issue
   14  permit  applicants  having  less  than three divisible load permits such
   15  additional permits as the applicant  may  request,  providing  that  the
   16  total  of  existing  and  new  permits does not exceed three.  Remaining
   17  permits shall be allocated by  lottery  in  accordance  with  procedures
   18  established by the commissioner in rules and regulations.
   19    The  department  of  transportation  may issue a seasonal agricultural
   20  permit in accordance with subparagraphs (i),  (ii)  and  (iii)  of  this
   21  paragraph  that  will  be  valid  for four consecutive months with a fee
   22  equal to one-half the annual permit fees established under this subdivi-
   23  sion.
   24    For a vehicle issued a permit in accordance with subparagraphs  (iii),
   25  (iv),  (v)  and  (vi)  of  this paragraph, such a vehicle must have been
   26  registered in this state prior to January first, nineteen hundred eight-
   27  y-six or be a vehicle or combination of vehicles which replace such type
   28  of vehicle which was  registered  in  this  state  prior  to  such  date
   29  provided that the manufacturer's recommended maximum gross weight of the
   30  replacement  vehicle  or  combination  of  vehicles  does not exceed the
   31  weight for which a permit may be issued  and  the  maximum  load  to  be
   32  carried  on  the replacement vehicle or combination of vehicles does not
   33  exceed the maximum load which could have been  carried  on  the  vehicle
   34  being  replaced  or  the registered weight of such vehicle, whichever is
   35  lower, in accordance with the following subparagraphs:
   36    (i) A permit may be issued for a vehicle having at least  three  axles
   37  and  a  wheelbase  not  less  than sixteen feet and for a vehicle with a
   38  trailer not exceeding forty-eight feet. The maximum gross weight of such
   39  a vehicle shall not exceed forty-two thousand five hundred  pounds  plus
   40  one  thousand  two hundred fifty pounds for each foot and major fraction
   41  of a foot of the distance from the center of the foremost  axle  to  the
   42  center  of the rearmost axle, or one hundred two thousand pounds, which-
   43  ever is more restrictive provided, however, that  any  four  axle  group
   44  weight shall not exceed sixty-two thousand pounds, any tridem axle group
   45  weight  shall  not  exceed  fifty-seven thousand pounds, any tandem axle
   46  weight does not exceed forty-seven thousand pounds and any  single  axle
   47  weight shall not exceed twenty-five thousand pounds.
   48    Any  additional  special authorizations contained in a currently valid
   49  annual permit shall cease upon the expiration  of  such  current  annual
   50  permit.
   51    (ii) A permit may be issued subject to bridge restrictions for a vehi-
   52  cle  or  a combination of vehicles having at least six axles and a wheel
   53  base of at least thirty-six and one-half feet. The maximum gross  weight
   54  of  such vehicle or combination of vehicles shall not exceed one hundred
   55  seven thousand pounds and any tridem axle group weight shall not  exceed
       S. 1409                            10                            A. 2109
 
    1  fifty-eight  thousand  pounds and any tandem axle group weight shall not
    2  exceed forty-eight thousand pounds.
    3    (ii-a)  A  permit  may  be issued subject to bridge restrictions for a
    4  combination of vehicles having at least seven axles and a  wheelbase  of
    5  at  least forty-three feet. The maximum gross weight of such combination
    6  of vehicles shall not exceed one hundred seventeen thousand pounds,  any
    7  four axle group weight shall not exceed sixty-three thousand pounds, any
    8  tridem  axle  group weight shall not exceed fifty-eight thousand pounds,
    9  any tandem axle group  weight  shall  not  exceed  forty-eight  thousand
   10  pounds, and any single axle weight shall not exceed twenty-five thousand
   11  pounds.
   12    Each  axle  of  such  combination of vehicles, other than steerable or
   13  trackable axles, shall be equipped with two tires on each  side  of  the
   14  axle,  any air pressure controls for lift axles shall be located outside
   15  the cab of the combination of vehicles and shall be beyond the reach  of
   16  occupants of the cab while the combination of vehicles is in motion, the
   17  weight  on  any  grouping of two or more axles shall be distributed such
   18  that no axle in the grouping carries less than  eighty  percent  of  any
   19  other axle in the grouping, and any liftable axle of such combination of
   20  vehicles shall be steerable or trackable.
   21    (iii)  A  permit  may  be  issued for a vehicle having two axles and a
   22  wheelbase not less than ten feet, with the maximum gross weight  not  in
   23  excess of one hundred twenty-five percent of the total weight limitation
   24  as  set  forth  in  subdivision  ten of this section. Furthermore, until
   25  December thirty-first, nineteen hundred  ninety-four,  any  single  rear
   26  axle  weight shall not exceed twenty-eight thousand pounds. After Decem-
   27  ber thirty-first, nineteen hundred ninety-four, any  axle  weight  shall
   28  not exceed twenty-seven thousand pounds.
   29    (iv) Within a city not wholly included within one county and the coun-
   30  ties  of  Westchester,  Rockland,  Nassau,  Suffolk,  Putnam, Orange and
   31  Dutchess, a permit may be issued for a vehicle  having  at  least  three
   32  axles and a wheelbase not exceeding forty-four feet nor less than seven-
   33  teen feet or for a vehicle with a trailer not exceeding forty feet.
   34    Until  December  thirty-first,  nineteen hundred ninety-four, a permit
   35  may only be issued for such a vehicle having a maximum gross weight  not
   36  exceeding  eighty-two  thousand  pounds and any tandem axle group weight
   37  shall not exceed sixty-two thousand pounds.
   38    After January first, nineteen hundred ninety-five,  the  operation  of
   39  such  a vehicle shall be further limited and a permit may only be issued
   40  for such a vehicle having a maximum gross weight not exceeding  seventy-
   41  nine  thousand  pounds and any tandem axle group weight shall not exceed
   42  fifty-nine thousand pounds, and any tridem shall not  exceed  sixty-four
   43  thousand pounds.
   44    A  permit  may  be  issued  only until December thirty-first, nineteen
   45  hundred ninety-four for a vehicle having at  least  three  axles  and  a
   46  wheelbase  between  fifteen and seventeen feet. The maximum gross weight
   47  of such a vehicle shall not exceed seventy-three  thousand  two  hundred
   48  eighty  pounds  and any tandem axle group weight shall not exceed fifty-
   49  four thousand pounds.
   50    No vehicle having a model year of two thousand five or newer shall  be
   51  issued a permit pursuant to this subparagraph unless it is equipped with
   52  at  least four axles, and further provided, after December thirty-first,
   53  two thousand thirteen, no  permit  shall  be  issued  pursuant  to  this
   54  subparagraph  to  a  vehicle  of  any  model  year unless the vehicle is
   55  equipped with at least four axles.
       S. 1409                            11                            A. 2109
 
    1    (v) Within a city not wholly included within one county and the  coun-
    2  ties of Westchester, Rockland, Nassau, Suffolk, Putnam, Orange or Dutch-
    3  ess,  a  permit may be issued only until December thirty-first, nineteen
    4  hundred ninety-nine for a vehicle or combination of  vehicles  that  has
    5  been permitted within the past four years having five axles and a wheel-
    6  base  of at least thirty-six and one-half feet. The maximum gross weight
    7  of such a vehicle or  combination  of  vehicles  shall  not  exceed  one
    8  hundred  five thousand pounds and any tandem axle group weight shall not
    9  exceed fifty-one thousand pounds.
   10    Within a city not wholly included within one county and  the  counties
   11  of  Westchester, Rockland, Nassau, Suffolk, Putnam, Orange and Dutchess,
   12  a permit may be issued for a vehicle or combination of  vehicles  having
   13  at least five axles and a wheelbase of at least thirty feet. The maximum
   14  gross weight of such vehicle or combination of vehicles shall not exceed
   15  ninety-three  thousand pounds and any tridem axle group weight shall not
   16  exceed fifty-seven thousand pounds and  any  tandem  axle  group  weight
   17  shall not exceed forty-five thousand pounds.
   18    (vi) Within a city not wholly included within one county and the coun-
   19  ties  of  Westchester,  Rockland,  Nassau,  Suffolk,  Putnam, Orange and
   20  Dutchess, a permit may be issued for a vehicle or combination  of  vehi-
   21  cles  having  at  least  five  axles or more and a wheelbase of at least
   22  thirty-six and one-half feet,  provided  such  permit  contains  routing
   23  restrictions.
   24    Until December thirty-first, nineteen hundred ninety-four, the maximum
   25  gross  weight  of  a  vehicle or combination of vehicles permitted under
   26  this subparagraph shall not exceed one hundred  twenty  thousand  pounds
   27  and  any  tandem or tridem axle group weight shall not exceed sixty-nine
   28  thousand pounds, provided, however,  that  any  replacement  vehicle  or
   29  combination  of  vehicles  permitted  after  the  effective date of this
   30  subparagraph shall have at least six axles, any tandem axle group  shall
   31  not  exceed  fifty  thousand  pounds and any tridem axle group shall not
   32  exceed sixty-nine thousand pounds.
   33    After December thirty-first, nineteen hundred ninety-four, the  tridem
   34  axle  group  weight  of  any vehicle or combination of vehicles issued a
   35  permit under this subparagraph shall  not  exceed  sixty-seven  thousand
   36  pounds,  any  tandem  axle  group weight shall not exceed fifty thousand
   37  pounds and any single axle weight shall not exceed twenty-five  thousand
   38  seven hundred fifty pounds.
   39    After  December  thirty-first, nineteen hundred ninety-nine, all vehi-
   40  cles issued a permit under this subparagraph  must  have  at  least  six
   41  axles.
   42    After  December  thirty-first, two thousand thirteen, all combinations
   43  of vehicles issued a permit under this subparagraph must have  at  least
   44  seven axles and a wheelbase of at least forty-three feet.
   45    After  December  thirty-first,  two thousand five, no permits shall be
   46  issued under this subparagraph for a vehicle or combination of  vehicles
   47  having  less  than seven axles or having a wheelbase of less than forty-
   48  three feet, provided, however, that permits may be issued  for  vehicles
   49  or combinations of vehicles where the permit applicant demonstrates that
   50  the  applicant  acquired the vehicle or combination of vehicles prior to
   51  December thirty-first, two thousand five, and that  if  the  vehicle  or
   52  combination  of  vehicles was acquired by the applicant after the effec-
   53  tive date of this provision, such vehicle or combination of vehicles  is
   54  less than fifteen years old. In instances where the application is for a
   55  combination  of vehicles, the applicant shall demonstrate that the power
   56  unit of such combination satisfies the conditions of this  subparagraph.
       S. 1409                            12                            A. 2109
 
    1  In no event shall a permit be issued under this subparagraph for a vehi-
    2  cle  or combination of vehicles having less than seven axles or having a
    3  wheelbase of less than forty-three feet after December thirty-first, two
    4  thousand thirteen.
    5    Except  as  otherwise  provided  by  this  subparagraph for the period
    6  ending December thirty-first,  two  thousand  thirteen,  after  December
    7  thirty-first,  two  thousand  two,  any combination of vehicles issued a
    8  permit under this subparagraph shall not exceed one hundred twenty thou-
    9  sand pounds, shall have at least seven axles, shall have a wheelbase  of
   10  at least forty-three feet, and single axle weight shall not exceed twen-
   11  ty-five  thousand  seven  hundred  fifty  pounds,  any tandem axle group
   12  weight shall not exceed forty-eight thousand  pounds,  any  tridem  axle
   13  group  weight  shall not exceed sixty-three thousand pounds and any four
   14  axle group shall not exceed sixty-five thousand pounds.
   15    From the date of enactment  of  this  paragraph,  permit  applications
   16  under  subparagraphs (i), (ii), (ii-a), (iii), (iv), (v) and (vi) [here-
   17  of] of this paragraph for vehicles  registered  in  this  state  may  be
   18  honored  by  the  commissioner  of  transportation  or other appropriate
   19  authority. The commissioner  of  transportation  and  other  appropriate
   20  authorities  may  confer  and  develop  a system through rules and regu-
   21  lations to assure compliance herewith.
   22    § 3. Subdivision 15 of section 385 of the vehicle and traffic  law  is
   23  amended by adding two new paragraphs (j) and (k) to read as follows:
   24    (j)  The commissioner of transportation is authorized to conduct hear-
   25  ings with regard to the issuance or revocation of any permit  issued  by
   26  the commissioner of transportation pursuant to this section and relating
   27  to  the violation of any condition applicable to such permit as provided
   28  in subdivision three of section one hundred forty-five of the  transpor-
   29  tation  law.  If  a permit issued by the department of transportation is
   30  seized and the holder of the permit  makes  a  written  request  to  the
   31  department  of  transportation for a hearing, the commissioner of trans-
   32  portation shall schedule a hearing within twenty days of the receipt  of
   33  such request.
   34    (k) Any permit issued pursuant to this section that is seized shall be
   35  forwarded to the issuing authority as soon as practicable.
   36    §  4.  Subdivision 19 of section 385 of the vehicle and traffic law is
   37  REPEALED and a new subdivision 19 is added to read as follows:
   38    19. (a) (i) A violation of the provisions of subdivision eight,  nine,
   39  or  ten  of this section by any vehicle or combination of vehicles whose
   40  weight exceeds the weight limitations as set forth in this section, or a
   41  violation  of  such  rules  and  regulations,  or  a  violation  of  the
   42  provisions  of the rules or regulations of the city department of trans-
   43  portation in a city not wholly included within one county setting  forth
   44  the maximum allowable gross weight, axle weight, or axle grouping weight
   45  for  the  operation  of a vehicle in such city without a permit for such
   46  vehicle, by any vehicle or combination of vehicles whose weight  exceeds
   47  the  weight  limitations  as set forth in this section or such rules and
   48  regulations, or a violation  of  the  weight  limitations  specified  by
   49  permit  issued  pursuant to subdivision fifteen of this section shall be
   50  punishable by fines levied on the registered owner  of  the  vehicle  or
   51  vehicles,  whether  at  the time of the violation the vehicle was in the
   52  charge of the registered owner, or the  owner's  agent,  or  lessee,  in
   53  accordance with the following schedule:
 
   54    Percent of excess weight                                
Amount of fine
   55    (percentage)                                                (dollars)
       S. 1409                            13                            A. 2109
 
    1    greater than                  less than or equal to
    2          0                            2.0                            150
    3          2.0                          4.0                            300
    4          4.0                          6.0                            450
    5          6.0                          7.0                            525
    6          7.0                          8.0                            600
    7          8.0                         10.0                            750
    8         10.0                         12.0                            950
    9         12.0                         14.0                          1,150
   10         14.0                         16.0                          1,350
   11         16.0                         18.0                          1,550
   12         18.0                         20.0                          1,750
   13         20.0                         22.0                          1,950
   14         22.0                         24.0                          2,150
   15         24.0                         26.0                          2,350
   16         26.0                         28.0                          2,550
   17         28.0                         30.0                          2,750
   18         30.0                         32.0                          2,950
   19         32.0                         34.0                          3,150
   20         34.0                         36.0                          3,350
   21         36.0                         38.0                          3,550
   22         38.0                         40.0                          3,750
   23         40.0                                                       3,750
   24         or greater                                         plus $125 for
   25                                                             each percent
   26                                                          over 40 percent
 
   27  (NOTE: Where the total weight or axle or axle grouping weight is greater
   28  than  four  percent including any applicable enforcement scale tolerance
   29  in excess of the limits specified by a  permit  in  a  city  not  wholly
   30  included  in  one  county  or  seven  percent  including  any applicable
   31  enforcement scale tolerance in excess  of  the  limits  specified  by  a
   32  permit  in  areas outside such a city, the permit shall be deemed voided
   33  and then the amount of fine shall be determined in accordance  with  the
   34  maximum weight which would have been in effect for the operation of such
   35  vehicle  if  the  permit  to  exceed  such  maximum  weight had not been
   36  issued.)
   37    (ii) Notwithstanding subparagraph (i) of this paragraph and  only  for
   38  violations  by a vehicle having three or fewer axles and issued a permit
   39  pursuant to subparagraph (iv) of paragraph (f) of subdivision fifteen of
   40  this section or by a vehicle or combination of vehicles  having  six  or
   41  fewer  axles  and issued a permit pursuant to subparagraph (vi) of para-
   42  graph (f) of subdivision fifteen of this section,  a  violation  of  the
   43  provisions  of  subdivision  ten  of  this  section in a city not wholly
   44  included within one county or of the provisions of the  rules  or  regu-
   45  lations  of  the  city department of transportation of such city setting
   46  forth the maximum allowable gross weight for the operation of such vehi-
   47  cle or combination of vehicles in such city without a  permit  for  such
   48  vehicle  or  combination  of vehicles, by such vehicle or combination of
   49  vehicles whose weight exceeds the weight limitations (excluding enforce-
   50  ment scale tolerance as certified by the state department of agriculture
   51  and markets) as set forth in this  section,  or  such  rules  and  regu-
   52  lations,  or  the weight limitations specified by permit issued pursuant
   53  to subdivision fifteen of this section  shall  be  punishable  by  fines
   54  levied  on  the  registered owner of the vehicle or vehicles, whether at
   55  the time of the violation the vehicle was in the charge  of  the  regis-
       S. 1409                            14                            A. 2109
 
    1  tered  owner,  or  his  or  her agent, or lessee, in accordance with the
    2  following schedule:
 
    3            Excess total weight                          Amount of fine
    4            (pounds)                                     (dollars)
    5            greater than        less than or equal to
    6                 0               2,000                      50
    7             2,000               3,000                      75
    8             3,000               4,000                     100
    9             4,000               5,000                     200
   10             5,000               6,000                     300
   11             6,000               7,000                     400
   12             7,000               8,000                     500
   13             8,000               9,000                     600
   14             9,000              10,000                     700
   15            10,000              15,000                   1,200
   16            15,000              20,000                   1,700
   17            20,000              25,000                   2,200
   18            25,000              30,000                   2,700
   19            30,000              35,000                   3,200
   20            35,000              40,000                   3,700
   21            40,000              45,000                   4,200
   22            45,000              50,000 or greater        4,700
   23    (NOTE:  Where  the total weight (excluding enforcement scale tolerance
   24  as certified by the state department  of  agriculture  and  markets)  is
   25  greater  than  the  limits  specified  by  a permit, the permit shall be
   26  deemed voided and then the amount of fine shall be determined in accord-
   27  ance with the maximum weight which would have been  in  effect  for  the
   28  operation  of  such  vehicle if the permit to exceed such maximum weight
   29  had not been issued.)
   30    (iii) Notwithstanding subparagraph (i) of this paragraph and only  for
   31  violations  by a vehicle having three or fewer axles and issued a permit
   32  pursuant to subparagraph (iv) of paragraph (f) of subdivision fifteen of
   33  this section or by a vehicle or combination of vehicles  having  six  or
   34  fewer  axles  and issued a permit pursuant to subparagraph (vi) of para-
   35  graph (f) of subdivision fifteen of this section,  a  violation  of  the
   36  provisions  of subdivisions eight and nine of this section in a city not
   37  wholly included within one county or of the provisions of the  rules  or
   38  regulations  of  the  city  department  of  transportation  of such city
   39  setting forth the maximum allowable axle or tandem axle weight  for  the
   40  operation  of such vehicle or combination of vehicles in such city with-
   41  out a permit for such vehicle or combination of vehicles, by such  vehi-
   42  cle  or  combination of vehicles whose weight exceeds the weight limita-
   43  tions (excluding enforcement scale tolerance as certified by  the  state
   44  department  of agriculture and markets) as set forth in this section, or
   45  such rules or regulations, or the weight limitations specified by permit
   46  issued pursuant to subdivision fifteen of this section shall be punisha-
   47  ble by fines levied on the registered owner of the vehicle or  vehicles,
   48  whether  at  the  time of the violation the vehicle was in the charge of
   49  the registered owner, or his or her agent, or lessee, in accordance with
   50  the following schedule:
 
   51  Percentage of excess                            Amount of fine
   52  weight (percentage)                             (dollars)
   53  greater than            less than or equal to
       S. 1409                            15                            A. 2109
 
    1          0.0                        5.0                 100
    2          5.0                       10.0                 200
    3         10.0                       15.0                 350
    4         15.0                       20.0                 600
    5         20.0                       25.0               1,000
    6         25.0                       30.0               1,600
    7         30.0                       35.0               2,450
    8         35.0                       40.0               3,600
    9         40.0                       45.0               5,100
   10         45.0                                          7,000
 
   11    (NOTE:  Where  the  axle  or axles weight (excluding enforcement scale
   12  tolerance as certified  by  the  state  department  of  agriculture  and
   13  markets)  is  greater  than the limits specified by a permit, the permit
   14  shall be deemed voided and then the amount of fine shall  be  determined
   15  in  accordance  with  the maximum weight which would have been in effect
   16  for the operation of such vehicle if the permit to exceed  such  maximum
   17  weight had not been issued.)
   18    (b) In addition to the fines imposed by paragraph (a) of this subdivi-
   19  sion,  the registration of the vehicle may be suspended for a period not
   20  to exceed one year, whether at the time of the violation of this section
   21  the vehicle was in charge of the owner or the owner's agent, or  lessee.
   22  The  provisions  of section five hundred ten of this chapter shall apply
   23  to such suspension, except as otherwise provided herein.
   24    (c) If the vehicle is the subject of a permit issued pursuant to para-
   25  graph (f) of subdivision fifteen of this section and if  the  registered
   26  owner  of  a  vehicle  fails  to appear on the return date or subsequent
   27  adjourned date of a summons, appearance ticket or  notice  of  violation
   28  issued  pursuant  to  this  subdivision  or  fails to pay a fine imposed
   29  pursuant to this subdivision, the registration of  the  vehicle  or  the
   30  privilege  of operating the vehicle in this state shall be suspended for
   31  a period not to exceed one year. The suspension shall remain  in  effect
   32  until  the  registered  owner's  appearance  or payment of the fine. The
   33  commissioner or the commissioner's agent may deny a registration  appli-
   34  cation  of  any other person for the same vehicle where the commissioner
   35  has reasonable grounds to believe that such registration will  have  the
   36  effect of defeating the purpose of this paragraph.
   37    (d) Except for violations to which the penalties set forth in subpara-
   38  graph  (ii)  or  (iii)  of  paragraph  (a) of this subdivision apply, in
   39  connection with the weighing of a vehicle or combination of vehicles, if
   40  it is found that there is a violation of subdivision ten of this section
   41  and also of subdivision eight or nine of this section, or both  subdivi-
   42  sions  eight  and  nine  of  this  section, there shall be a single fine
   43  imposed and the maximum amount of such fine shall not exceed the highest
   44  fine that could be imposed under this subdivision.
   45    § 5.  This act shall take effect April 1, 2003; provided, however,  if
   46  this  act  shall become a law after such date it shall take effect imme-
   47  diately and shall be deemed to have been in full force and effect on and
   48  after April 1, 2003; provided, further, that sections three and four  of
   49  this  act  shall  take  effect on the ninetieth day after this act shall
   50  have become a law.
 
   51                                   PART D
 
   52    Section 1. Section 8 of chapter 533 of the laws of 1993, amending  the
   53  vehicle  and  traffic law and the correction law relating to the suspen-
       S. 1409                            16                            A. 2109
 
    1  sion and revocation of driver's  licenses  upon  conviction  of  certain
    2  drug-related offenses, is REPEALED.
    3    §  2. Section 9 of chapter 533 of the laws of 1993, amending the vehi-
    4  cle and traffic law and the correction law relating  to  the  suspension
    5  and  revocation of driver's licenses upon conviction of certain drug-re-
    6  lated offenses, as amended by section 1 of part A of chapter 84  of  the
    7  laws of 2002, is amended to read as follows:
    8    §  9. This act shall take effect September 30, 1993 and shall apply to
    9  convictions based on offenses which occurred on or after such date  [and
   10  shall  remain  in  full force and effect until October 1, 2003 when upon
   11  such date the provisions of this act shall be deemed  repealed  and  the
   12  provisions  of law amended by this act shall revert to and be read as if
   13  the provisions of this act had not been enacted].
   14    § 3. Section 28 of part E of chapter 58 of the laws of 1998,  relating
   15  to a report of the division of criminal justice services, is REPEALED.
   16    § 4. This act shall take effect April 1, 2003; provided, however, that
   17  if  this  act  shall  have  become  a law after such date, it shall take
   18  effect immediately and shall be deemed to have been in  full  force  and
   19  effect on and after April 1, 2003.
 
   20                                   PART E
 
   21    Section  1.  Subparagraph  2  of paragraph g of the ninth undesignated
   22  paragraph of section 1005 of the public authorities law, as  amended  by
   23  chapter 226 of the laws of 2002, is amended to read as follows:
   24    2. The authority, as deemed feasible and advisable by the trustees, is
   25  authorized  to make an additional annual voluntary contribution into the
   26  state treasury to the credit of the general fund.  The  authority  shall
   27  make  such  contribution  no later than ninety days after the end of the
   28  calendar year in which a credit under subdivision nine  of  section  one
   29  hundred  eighty-six-a  of  the  tax  law is available for the additional
   30  three hundred megawatts of power under the fourth phase of  the  program
   31  provided under chapter sixty-three of the laws of two thousand and under
   32  the  fifth  phase  for the additional one hundred eighty-three megawatts
   33  provided under [a] chapter two hundred twenty-six of  the  laws  of  two
   34  thousand  two.  Such annual contribution shall be equal to fifty percent
   35  of the total amount of such credits available each  year  to  all  local
   36  distributors   of  electricity.  In  addition,  such  authorization  for
   37  contribution in state fiscal year two thousand two--two  thousand  three
   38  shall  be  equal to the total amount of credit available in two thousand
   39  one and two thousand two; and such  authorization  for  contribution  in
   40  state  fiscal  year two thousand three--two thousand four shall be equal
   41  to the total amount of credit available in  two  thousand  three;  under
   42  subdivision  nine  of  section  one  hundred eighty-six-a of the tax law
   43  under the fourth phase of the program for the additional  three  hundred
   44  megawatts provided under chapter sixty-three of the laws of two thousand
   45  and  under  the  fifth phase for the additional one hundred eighty-three
   46  megawatts provided under [a] chapter two hundred twenty-six of the  laws
   47  of  two  thousand two.   The department of public service shall estimate
   48  the payment due by the end of the calendar year in which the  credit  is
   49  available. In no case shall the amount of the total annual contributions
   50  for  the  years  during  which delivery and sale of phase four and phase
   51  five power takes place exceed the aggregate total of one  hundred  twen-
   52  ty-five  million  dollars.  Such aggregate total shall be in addition to
   53  any contribution made pursuant to subparagraph one of this paragraph.
       S. 1409                            17                            A. 2109
 
    1    § 2. This act shall take effect April 1, 2003; provided, however, that
    2  the amendments to the ninth undesignated paragraph of  section  1005  of
    3  the  public  authorities  law  made by section one of this act shall not
    4  affect the expiration of such paragraph and shall be  deemed  to  expire
    5  therewith.
 
    6                                   PART F
 
    7    Section  1.  Subdivision 1 of section 1977-a of the public authorities
    8  law is amended by adding a new paragraph (c) to read as follows:
    9    (c) Additional authorizations.  (1) For the purpose of financing capi-
   10  tal costs in connection  with  development  of  the  project  area,  the
   11  authority  may, in addition to the authorizations contained elsewhere in
   12  this title, borrow money by issuing bonds or notes in an aggregate prin-
   13  cipal amount not exceeding one hundred  fifty  million  dollars  plus  a
   14  principal  amount  of bonds or notes issued (i) to fund any related debt
   15  service reserve fund, (ii) to provide capitalized interest, and (iii) to
   16  provide for fees and other charges and expenses,  including  any  under-
   17  writers'  discounts, related to the issuance of such bonds or notes, all
   18  as determined by the authority, excluding  bonds  and  notes  issued  to
   19  refund outstanding bonds and notes issued pursuant to this section.
   20    (2)  In  addition  to  the  authorizations contained elsewhere in this
   21  title, the authority may issue indebtedness for the purpose of refunding
   22  outstanding indebtedness of the housing New York  corporation  which  is
   23  secured  by  revenues of the authority, and indebtedness for the purpose
   24  of refunding such refunding indebtedness issued by the authority includ-
   25  ing the funding of reserves and providing for fees and other charges and
   26  expenses, including underwriters' discounts, related to the issuance  of
   27  such refunding bonds or notes, all as determined by the authority.
   28    § 2. Section 1977-a of the public authorities law is amended by adding
   29  a new subdivision 4 to read as follows:
   30    4.  The  authority  shall  have  the power to enter into interest rate
   31  exchange agreements, which shall mean written contracts entered into  in
   32  connection  with  the  issuance  of authority debt or in connection with
   33  such authority debt already outstanding with a counter party to  provide
   34  for  an  exchange  of payments based upon fixed and/or variable interest
   35  rates, and shall be for exchanges in currency of the  United  States  of
   36  America  only.  The  authority  shall  have the power to enter into such
   37  interest rate exchange agreements until December thirty-first, two thou-
   38  sand three.
   39    § 3. This act shall take effect immediately and  shall  apply  to  all
   40  applicable  agreements  entered  into  on  or after such date; provided,
   41  however, that the provisions of section two of this act shall expire and
   42  be deemed repealed on December 31,  2003;  provided,  further  that  the
   43  expiration and repeal of such subdivision shall not affect any agreement
   44  entered into prior to such expiration and repeal.
 
   45                                   PART G
 
   46    Section 1. The dormitory authority of the state of New York is author-
   47  ized  to enter into an agreement with Cornell University for the support
   48  of operation of the parallel  computing  supercomputers  at  the  theory
   49  center  for supercomputers in connection with the business of the dormi-
   50  tory authority in an amount not to exceed $1,200,000 over amounts previ-
   51  ously authorized.
       S. 1409                            18                            A. 2109
 
    1    § 2. This act shall take effect April 1, 2003; provided,  however,  if
    2  this  act  shall become a law after such date it shall take effect imme-
    3  diately and shall be deemed to have been in full force and effect on and
    4  after April 1, 2003.
 
    5                                   PART H
 
    6    Section 1. Notwithstanding any other provision of law, the commission-
    7  er  of  the state division of housing and community renewal shall termi-
    8  nate all contracts with neighborhood and  rural  preservation  companies
    9  entered  into  pursuant  to articles XVI and XVII of the private housing
   10  finance law, effective at the end of the current contract periods but in
   11  any event no later than June 30, 2003 and shall provide  written  notice
   12  of  such termination to all affected companies and, further, the commis-
   13  sioner shall issue a notice of funding availability setting forth crite-
   14  ria for selection of companies to be funded for the period July 1,  2003
   15  through  June  30, 2004 and for future funding. Subdivision 6 of section
   16  903 and subdivision 6 of section 1003 of the private housing finance law
   17  shall not apply to contracts terminated pursuant to this act.
   18    § 2. This act shall take effect immediately and shall be deemed to  be
   19  in full force and effect on and after April 1, 2003.
 
   20                                   PART I
 
   21    Section  1.  The  racing,  pari-mutuel  wagering  and  breeding law is
   22  amended by adding a new section 111 to read as follows:
   23    § 111. Regulatory fees. 1. Payment of the regulatory fees  imposed  by
   24  this  chapter shall be made to the board by each entity required to make
   25  such payments on the last business day of each month and shall cover the
   26  fees due for the period from the sixteenth day of  the  preceding  month
   27  through  the  fifteenth  day of the current month, provided however that
   28  all such payments required  to  be  made  on  March  thirty-first  shall
   29  include  all  fees due and accruing through the last full week of racing
   30  of the current year or as otherwise determined by the board and shall be
   31  accompanied by a report under oath,  showing  such  information  as  the
   32  board  may require.  A penalty of five percent, and interest at the rate
   33  of one percent per month from the date the  report  is  required  to  be
   34  filed to the date of the payment of the fee shall be payable in case any
   35  fee  imposed  by  this chapter is not paid when due. If the board deter-
   36  mines that any regulatory fees received  by it under this  chapter  were
   37  paid  in  error,  the  board  may  cause the same to be refunded without
   38  interest out of any monies collected thereunder, provided an application
   39  therefor is filed with the board within one year from the time the erro-
   40  neous payment is made.
   41    2. The board or its duly authorized  representatives  shall  have  the
   42  power  to  examine or cause to be examined the books and records of each
   43  entity required to pay the regulatory fee imposed by  this  chapter  for
   44  the  purpose of examining and checking the same and ascertaining whether
   45  or not the proper amount or amounts due are being paid. If in the  opin-
   46  ion  of the board, after such examination, any such report is incorrect,
   47  the board is authorized to issue an assessment fixing the correct amount
   48  of such fee. Such assessments may be issued within three years from  the
   49  filing  of any report. Any such assessment shall be final and conclusive
   50  unless an application for a hearing is filed  by  the  reporting  entity
   51  within  thirty  days  of  the  assessment. The action of   the board  in
   52  making such final assessment shall be reviewable in the supreme court in
       S. 1409                            19                            A. 2109
 
    1  the manner provided by and subject to the provisions of  article  seven-
    2  ty-eight of the civil practice law and rules.
    3    3. The board shall submit to the director of the division of the budg-
    4  et  an  annual  plan  that  details  the amount of money the board deems
    5  necessary to maintain the operations, compliance and enforcement of  the
    6  provisions  of this chapter. Contingent upon approval of the director of
    7  the division of the budget, the board shall pay into an account,  to  be
    8  known  as  the racing regulation account, under the joint custody of the
    9  comptroller and the board, the  total  amount  of  the  regulatory  fees
   10  collected pursuant to this chapter. With the approval of the director of
   11  the  budget,  monies to be utilized to maintain the operations necessary
   12  to implement the provisions of this chapter shall be paid  out  of  such
   13  account  on  the audit and warrant of the comptroller on vouchers certi-
   14  fied and approved by the director of the division of the budget  or  his
   15  duly designated official.
   16    §  2. Subdivision 1 of section 228 of the racing, pari-mutuel wagering
   17  and breeding law, as amended by chapter 281 of  the  laws  of  1994,  is
   18  amended to read as follows:
   19    1.  Every  corporation or association authorized under this chapter to
   20  conduct pari-mutuel betting at a race  meeting  on  races  run  thereat,
   21  except  as  provided  in section two hundred twenty-nine of this chapter
   22  with respect to nonprofit racing associations, shall distribute all sums
   23  deposited in any pari-mutuel pool to  the  holders  of  winning  tickets
   24  therein,  providing  such  tickets be presented for payment before April
   25  first of the year following the year of their purchase, less  [seventeen
   26  per  centum  of  the  total  deposits in pools] an amount which shall be
   27  established and retained by such racing association  or  corporation  of
   28  between  fourteen  to  twenty  per centum of the total deposits in pools
   29  resulting from regular on-track bets  and  less  [nineteen  per  centum]
   30  sixteen  to twenty-two per centum of the total deposits in pools result-
   31  ing from multiple on-track bets and less [twenty-five per centum] twenty
   32  to thirty per centum of the total deposits in pools resulting from exot-
   33  ic on-track bets and less twenty to thirty-six per centum of  the  total
   34  pools  resulting  from  super exotic on-track bets, plus the breaks. The
   35  retention rate to be established is subject to the prior approval of the
   36  racing and wagering board. Such rate may not be changed more  than  once
   37  per  calendar  quarter  to be effective on the first day of the calendar
   38  quarter. "Exotic bets" and "multiple bets" shall have the  meanings  set
   39  forth  in  section  five hundred nineteen of this chapter and breaks are
   40  hereby defined as the odd cents over any multiple of ten, or for  exotic
   41  bets  over  any  multiple  of  fifty, or for super exotic bets, over any
   42  multiple of one hundred, calculated on the basis of one  dollar,  other-
   43  wise payable to a patron provided, however, that effective after October
   44  fifteenth, nineteen hundred ninety-four breaks are hereby defined as the
   45  odd  cents over any multiple of five for payoffs greater than one dollar
   46  five cents but less than five dollars, over  any  multiple  of  ten  for
   47  payoffs  greater  than  five  dollars but less than twenty-five dollars,
   48  over any multiple of twenty-five for payoffs  greater  than  twenty-five
   49  dollars but less than two hundred fifty dollars, or over any multiple of
   50  fifty  for  payoffs  over two hundred fifty dollars. "Super exotic bets"
   51  shall have the meaning set forth in section three hundred  one  of  this
   52  chapter.  Of  the  amount so retained there shall be paid by such corpo-
   53  ration or association to the state tax commission as a reasonable tax by
   54  the state for the privilege of conducting  pari-mutuel  betting  on  the
   55  races  run  at the race meeting held by such corporation or association,
   56  which tax is hereby levied, the following percentages of the total pool,
       S. 1409                            20                            A. 2109
 
    1  plus fifty-five per centum of the breaks; the applicable rates for regu-
    2  lar and multiple bets shall be one and one-half per centum; the applica-
    3  ble rates for exotic bets shall be six and three-quarter per centum  and
    4  the applicable rate for super exotic bets shall be seven and three-quar-
    5  ter per centum. Effective on and after September first, nineteen hundred
    6  ninety-four,  the  applicable  tax  rate  shall be one per centum of all
    7  wagers, provided that,  an  amount  equal  to  one-half  the  difference
    8  between the taxation rate for on-track regular, multiple and exotic bets
    9  as of December thirty-first, nineteen hundred ninety-three and the rates
   10  on such on-track wagers as herein provided shall be used exclusively for
   11  purses. Provided, however, that for any twelve-month period beginning on
   12  April  first in nineteen hundred ninety and any year thereafter, each of
   13  the applicable rates set forth above shall be increased  by  one-quarter
   14  of one per centum on all on-track bets of any such racing association or
   15  corporation  that did not expend an amount equal to at least one-half of
   16  one per centum of its on-track bets  during  the  immediately  preceding
   17  calendar  year  for  enhancements  consisting of capital improvements as
   18  defined by section two hundred twenty-eight-a of this  article,  repairs
   19  to  its  physical plant, structures, and equipment used in its racing or
   20  wagering operations as certified by the state racing and wagering  board
   21  to  the  commissioner  of taxation and finance no later than eighty days
   22  after the close of such calendar year, and five special events  at  each
   23  track  in  each  calendar  year, not otherwise conducted in the ordinary
   24  course of business, the purpose of which shall be to encourage,  attract
   25  and  promote track attendance and encourage new and continued patronage,
   26  which events shall be approved by the  racing  and  wagering  board  for
   27  purposes  of  this  subdivision.  In  the  determination  of the amounts
   28  expended for such enhancements, the board may consider  the  immediately
   29  preceding  twelve  month calendar period or the average of the two imme-
   30  diately preceding  twelve  month  calendar  periods.  Provided  further,
   31  however,  that  of the portion of the increased amounts retained by such
   32  association or corporation above  those  amounts  retained  in  nineteen
   33  hundred  eighty-four, an amount of such increase shall be distributed to
   34  purses in the same proportion as commissions and purses were distributed
   35  during nineteen hundred eighty-four as  certified  by  the  board.  Such
   36  corporation  or  association  in  the second zone shall receive a credit
   37  against the daily tax imposed by this subdivision in an amount equal  to
   38  one per centum of total daily pools resulting from the simulcast of such
   39  corporation's  or association's races to licensed facilities operated by
   40  regional off-track betting corporations in accordance with  section  one
   41  thousand  eight of this chapter, provided however, that sixty per centum
   42  of the amount of such credit shall be used exclusively to increase purs-
   43  es for overnight races conducted by  such  corporation  or  association;
   44  and,  provided  further,  that in no event shall such total daily credit
   45  exceed one per centum of the total daily pool  of  such  association  or
   46  corporation. Provided, however, that on and after September first, nine-
   47  teen  hundred  ninety-four  such  credit shall be four-tenths percent of
   48  total daily pools resulting from such simulcasting and that in no  event
   49  shall  such  total  daily  credit equal four-tenths percent of the total
   50  daily pool of such association or corporation. Such corporation or asso-
   51  ciation shall pay to the New York state thoroughbred breeding and devel-
   52  opment fund one-half of one per centum of the total daily on-track pari-
   53  mutuel pools from regular, multiple  and  exotic  bets,  and  three  per
   54  centum  of  super  exotic  bets.  The  corporation  or association shall
   55  receive credit as a reduction of the tax by the state for the  privilege
   56  of  conducting  pari-mutuel betting for the amounts, except amounts paid
       S. 1409                            21                            A. 2109
 
    1  from super exotic betting pools, paid to the New York state thoroughbred
    2  breeding and development fund  after  January  first,  nineteen  hundred
    3  seventy-eight.
    4    Such  corporation  or association shall distribute to purses an amount
    5  equal to fifty per centum of any compensation it  receives  from  simul-
    6  casting  or  from  wagering  conducted  outside  the United States. Such
    7  corporation or association shall pay to the racing and wagering board as
    8  a regulatory fee, which fee is hereby levied, one-half of one per centum
    9  of the total daily on-track pari-mutuel pools  of  such  corporation  or
   10  association.
   11    §  3.  Paragraphs  (a)  and (e) of subdivision 1 of section 229 of the
   12  racing, pari-mutuel wagering and breeding law, paragraph (a) as  amended
   13  by  chapter 94 of the laws of 2001 and paragraph (e) as amended by chap-
   14  ter 277 of the laws of 2001, are amended to read as follows:
   15    (a) Every nonprofit racing association authorized under  this  chapter
   16  to  conduct  pari-mutuel  betting at a race meeting or races run thereat
   17  shall distribute all sums deposited in any pari-mutuel pool to the hold-
   18  ers of winning tickets therein, provided such tickets be  presented  for
   19  payment  before  April  first  of  the  year following the year of their
   20  purchase, less seventeen per centum  of  the  total  deposits  in  pools
   21  resulting  from  on-track  regular and multiple bets and twenty-five per
   22  centum of the total deposits in pools  resulting  from  on-track  exotic
   23  bets  and thirty-six per centum of the total deposits in pools resulting
   24  from on-track super exotic bets,  provided,  however,  that  during  the
   25  period  July  twenty-first,  nineteen  hundred  ninety-five through July
   26  twenty-fourth, two thousand one, fifteen per centum of total deposits in
   27  pools resulting from on-track regular bets  and  twenty  per  centum  of
   28  total deposits in pools resulting from on-track multiple bets; provided,
   29  however,  that  during  the  period  July twenty-fifth, two thousand one
   30  through June thirtieth, two thousand four, [fourteen] an amount shall be
   31  established and retained by such nonprofit racing association of between
   32  twelve to seventeen per centum of total deposits in pools resulting from
   33  on-track regular bets, [seventeen and one-half] fourteen  to  twenty-one
   34  per centum of the total deposits in pools resulting from on-track multi-
   35  ple  bets  and  [twenty]  fifteen to twenty-five per centum of the total
   36  deposits resulting from an exotic wager which requires the selection  of
   37  the  winner  of six designated pari-mutuel races, also known as the pick
   38  six, unless there is a carry-over as defined by the rules of the  board,
   39  shall  be retained by such nonprofit racing association plus the breaks.
   40  The retention rate to be established is subject to the prior approval of
   41  the racing and wagering board. Such rate may not be  changed  more  than
   42  once per calendar quarter to be effective on the first day of the calen-
   43  dar  quarter.  "Exotic bets" and "multiple bets" shall have the meanings
   44  set forth in section five hundred nineteen of this chapter. "Super exot-
   45  ic bets" shall have the meaning set forth in section three  hundred  one
   46  of  this chapter.   For purposes of this section, a "pick six bet" shall
   47  mean a single bet or wager on the outcomes of six races. The breaks  are
   48  hereby  defined  as  the odd cents over any multiple of five for payoffs
   49  greater than one dollar five cents but less than five dollars, over  any
   50  multiple  of  ten  for  payoffs  greater than five dollars but less than
   51  twenty-five dollars, over any multiple of twenty-five for payoffs great-
   52  er than twenty-five dollars but less than two hundred fifty dollars,  or
   53  over  any  multiple of fifty for payoffs over two hundred fifty dollars.
   54  Out of the amount so retained there shall  be  paid  by  such  nonprofit
   55  racing  association  to  the  commissioner of taxation and finance, as a
   56  reasonable tax by the state for the privilege of conducting  pari-mutuel
       S. 1409                            22                            A. 2109
 
    1  betting  on  the  races  run at the race meetings held by such nonprofit
    2  racing association, the following percentages  of  the  total  pool  for
    3  regular  and  multiple bets five per centum of regular bets and four per
    4  centum of multiple bets plus twenty per centum of the breaks; for exotic
    5  wagers  seven  and  one-half  per  centum  plus twenty per centum of the
    6  breaks, and for super exotic bets seven and  one-half  per  centum  plus
    7  fifty  per  centum  of  the  breaks. For the period June first, nineteen
    8  hundred ninety-five through September ninth,  nineteen  hundred  ninety-
    9  nine,  such tax on regular wagers shall be three per centum and such tax
   10  on multiple wagers shall be two and one-half per centum, plus twenty per
   11  centum of the breaks.  For the period September tenth, nineteen  hundred
   12  ninety-nine  through  March  thirty-first, two thousand one, such tax on
   13  all wagers shall be two and six-tenths per centum  and  for  the  period
   14  April  first,  two thousand one through December thirty-first, two thou-
   15  sand seven, such tax on all wagers  shall  be  one  and  six-tenths  per
   16  centum,  plus,  in  each  such  period, twenty per centum of the breaks.
   17  Payment to the New York state thoroughbred breeding and development fund
   18  by such association shall be one-half of one per centum of  total  daily
   19  on-track  pari-mutuel  pools resulting from regular, multiple and exotic
   20  bets and three per centum of super exotic bets provided,  however,  that
   21  for  the  period  September  tenth, nineteen hundred ninety-nine through
   22  March thirty-first, two thousand one, such payment shall  be  six-tenths
   23  of  one  per  centum  of  regular, multiple and exotic pools and for the
   24  period April first, two thousand one through December thirty-first,  two
   25  thousand  seven, such payment shall be seven-tenths of one per centum of
   26  such pools.
   27    (e) The pari-mutuel tax rate  authorized  by  paragraph  (a)  of  this
   28  subdivision  shall  be  effective so long as a non-profit racing associ-
   29  ation notifies the racing and wagering board by August fifteenth of each
   30  year that such pari-mutuel tax  rate  is  effective  of  its  intent  to
   31  conduct a race meeting at Aqueduct racetrack during the months of Decem-
   32  ber,  January, February, March and April. For purposes of this paragraph
   33  such race meeting shall consist of not less  than  ninety-five  days  of
   34  racing.  Not later than May first of each year that such pari-mutuel tax
   35  rate is effective, the racing and wagering board shall determine whether
   36  a race meeting at Aqueduct racetrack consisted of the number of days  as
   37  required  by  this  paragraph.  In  determining the number of race days,
   38  cancellation of a race day because of an act of God,  which  the  racing
   39  and  wagering  board  approves or because of weather conditions that are
   40  unsafe or hazardous which the racing and wagering board  approves  shall
   41  not  be  construed  as  a  failure to conduct a race day.  Additionally,
   42  cancellation of a race day because of circumstances beyond  the  control
   43  of  such non-profit racing association for which the racing and wagering
   44  board gives approval shall not be construed as a failure  to  conduct  a
   45  race day. If the racing and wagering board determines that the number of
   46  days  of racing as required by this paragraph have not occurred then the
   47  pari-mutuel tax rate in paragraph (a) of this subdivision  shall  revert
   48  to  the pari-mutuel tax rates in effect prior to January first, nineteen
   49  hundred ninety-five.  Such non-profit racing association  shall  pay  to
   50  the  racing  and wagering board as a regulatory fee, which fee is hereby
   51  levied, one-half of one per centum of the total daily on-track  pari-mu-
   52  tuel pools of such association.
   53    §  4. Section 239 of the racing, pari-mutuel wagering and breeding law
   54  is amended to read as follows:
   55    § 239. Approval of plans of corporation or  association.    The  state
   56  racing  and  wagering  board shall not grant to a corporation or associ-
       S. 1409                            23                            A. 2109
 
    1  ation hereafter formed pursuant to sections two hundred one through  two
    2  hundred  twenty-one  of  this chapter, a license to conduct a running or
    3  steeplechase race meeting within the state  until  such  corporation  or
    4  association  shall  have  submitted  to  the  board  a  statement of the
    5  location of its proposed grounds and racetrack, together with a plan  of
    6  such  racetrack,  and  plans  of all buildings, seating stands and other
    7  structures, in such form as the board  may  prescribe,  and  such  plans
    8  shall  have been approved by the board.  The board at the expense of the
    9  applicant may order such engineering examination thereof  as  the  board
   10  may  deem  necessary. [Alterations of buildings, seating stands or other
   11  structures, and the erection of new  or  additional  buildings,  seating
   12  stands  or other structures on the grounds of any corporation or associ-
   13  ation heretofore or hereafter formed pursuant to  sections  two  hundred
   14  one through two hundred twenty-one of this chapter may be made only with
   15  the  approval  of  the board and after examination and inspection of the
   16  plans thereof and the issuance of a permit therefor by such board.]  The
   17  approval  of  the  certificate  of  incorporation of such corporation or
   18  association shall not be deemed to vest in it the right to a license  to
   19  conduct  running  or  steeplechase  race meetings at such race course or
   20  racetrack unless such grounds,  track,  buildings,  seating  stands  and
   21  other  structures  shall  be  completed  in  accordance  with  the plans
   22  approved by the board.
   23    § 5. Subdivision 4 of section 301 of the racing, pari-mutuel  wagering
   24  and  breeding  law,  as  amended  by  chapter  2 of the laws of 1995, is
   25  amended to read as follows:
   26    4. The term "super exotic bet" or "super exotic  wager",  as  used  in
   27  this  chapter,  shall  mean a single bet or wager on six or more horses,
   28  evidenced by a single ticket and representing an interest in  a  betting
   29  pool  hereby  authorized to be conducted by licensed racing associations
   30  or corporations or regional off-track betting corporations  pursuant  to
   31  rules and regulations of the state racing and wagering board. Such rules
   32  and  regulations  shall  provide  the manner in which winning tickets in
   33  such pool shall be determined and may provide that a portion only of the
   34  amounts otherwise available to winners of such pools be paid to  holders
   35  of  consolation tickets combining the most winning horses as provided in
   36  such rules and regulations and that the  balance  of  amounts  otherwise
   37  available  to winners from such pool be carried forward and deposited in
   38  any subsequent super exotic pools. Such rules and regulations shall also
   39  provide that an amount not to exceed six per centum of the total  wagers
   40  in  each  super  exotic pool may be used or accumulated to reimburse any
   41  such association or corporation conducting such pool  for  the  cost  of
   42  assuring an advertised winning pay-out for winning wagers or for a capi-
   43  tal improvement fund or to reimburse any such association or corporation
   44  for  amounts  it  has contributed to the amounts otherwise available for
   45  winning wagers to increase the pay-out therefor. Such  rules  and  regu-
   46  lations  may  further  provide  that  all  of  the amounts available for
   47  winning tickets and accumulations therefor shall be distributed  period-
   48  ically  to  holders  of  tickets  combining  the  most winners in a pool
   49  conducted upon a date specified by the board and, in  any  event,  shall
   50  provide  for  complete  disposition of all amounts available for winning
   51  tickets and accumulations therefor before the end of the  licensed  meet
   52  during which such super exotic pools are conducted.  Notwithstanding the
   53  foregoing or any other provisions of law, [if a nonprofit racing associ-
   54  ation,  a  thoroughbred  racing  association  or  corporation, a harness
   55  racing association or corporation or an  off-track  betting  corporation
   56  chooses  to  reduce the take out on super exotic bets to twenty-five per
       S. 1409                            24                            A. 2109
 
    1  centum,] all distributions [and], taxes and  regulatory  fees  on  super
    2  exotic  bets  shall be distributed as though the bet were an exotic bet,
    3  except that a balance may be retained and deposited in subsequent pools.
    4    §  6.  The  opening  paragraph  of subdivision 1 of section 318 of the
    5  racing, pari-mutuel wagering and breeding law, as amended by chapter 281
    6  of the laws of 1994, is amended and a new paragraph d is added  to  read
    7  as follows:
    8    Except  as otherwise provided by law, every association or corporation
    9  authorized under this  article  to  conduct  pari-mutuel  betting  at  a
   10  harness  horse  race  meeting  on races run thereat shall distribute all
   11  sums deposited in any pari-mutuel pool to the holders of winning tickets
   12  therein, provided such tickets be presented for payment prior  to  April
   13  first  of the year following the year of their purchase, less [seventeen
   14  per centum of the total deposits in pools]  an  amount  which  shall  be
   15  established  and  retained  by such racing association or corporation of
   16  between fourteen and twenty per centum of the total  deposits  in  pools
   17  resulting from regular bets, less [nineteen per centum] sixteen to twen-
   18  ty-two per centum of the total deposits in pools resulting from multiple
   19  bets,  less  [twenty-five per centum] twenty to thirty per centum of the
   20  total deposits in pools resulting from exotic bets, and less [thirty-six
   21  per centum] twenty to thirty-six per centum of the total betting  depos-
   22  its  in  pools  resulting  from  super exotic bets, plus the breaks. [In
   23  accordance with section nine hundred one of this chapter, the board  may
   24  approve  an  application  from  any harness racing association or corpo-
   25  ration to reduce the retained percentages as herein required by no  more
   26  than  six  percentage  points  for  each pari-mutuel pool resulting from
   27  regular, multiple or exotic bets. Except as otherwise provided  in  this
   28  section,  such  application  shall  require  the written consent of such
   29  track's horsemen's association or corporation.] The retention rate to be
   30  established is subject to the prior approval of the racing and  wagering
   31  board.  Such rate may not be changed more than once per calendar quarter
   32  to be effective on the first day of the calendar quarter.
   33    d. Every harness racing association or corporation shall  pay  to  the
   34  board  as  a regulatory fee, which fee is hereby levied, one-half of one
   35  percent of the total daily on-track pari-mutuel pools  of  such  associ-
   36  ation or corporation.
   37    §  7. Section 322 of the racing, pari-mutuel wagering and breeding law
   38  is amended to read as follows:
   39    § 322. Approval of plans of corporation or  association.    The  state
   40  racing  and  wagering  board shall not grant to a corporation or associ-
   41  ation hereafter formed  pursuant  to  sections  two  hundred  twenty-two
   42  through  seven  hundred  five  of  this  chapter, a license to conduct a
   43  harness race meeting at which pari-mutuel betting may be conducted with-
   44  in the state until such corporation or association shall have  submitted
   45  to  the  board  a  statement of the location of its proposed grounds and
   46  racetrack, together with a plan of such  racetrack,  and  plans  of  all
   47  buildings, seating stands and other structures in such form as the board
   48  may prescribe, and such plans shall have been approved in writing by the
   49  board.  [Alterations  of  existing  buildings,  seating stands and other
   50  structures, and the erection of new  or  additional  buildings,  seating
   51  stands or other structures may be made only with the written approval of
   52  the  board and after examination and inspection of the plans thereof and
   53  the issuance of a permit therefor  by  the  state  racing  and  wagering
   54  board.]  The  board at the expense of the applicant may order such engi-
   55  neering examination  thereof  as  the  board  may  deem  necessary.  The
   56  approval  of  the  certificate  of  incorporation of such corporation or
       S. 1409                            25                            A. 2109
 
    1  association shall not be deemed to vest in it the right to a license  to
    2  conduct  harness  race  meetings at such race course or racetrack unless
    3  such grounds, track, buildings,  seating  stands  and  other  structures
    4  shall be completed in accordance with the plans approved by the board.
    5    §  8. Subdivision 1 of section 508 of the racing, pari-mutuel wagering
    6  and breeding law is amended to read as follows:
    7    1. Each corporation shall have the power  and  is  hereby  authorized,
    8  from time to time, [subject to the approval of the board] to issue nego-
    9  tiable  bonds and notes in such aggregate principal amounts as shall, in
   10  the opinion of the corporation, be necessary together  with  such  other
   11  moneys or funds as may be available to the corporation, to provide funds
   12  sufficient  to  enable  the  corporation  to  carry  out  its  corporate
   13  purposes,  including  the  acquisition,  construction,  maintenance  and
   14  repair  of  personal  and  real property, the payment of interest on and
   15  amortization of or payment of such bonds and notes, the establishment of
   16  reserves or sinking funds to secure such bonds and notes, and all  other
   17  expenditures  of  the corporation incident to and necessary or desirable
   18  for the carrying out of its corporate purposes and the exercise  of  its
   19  powers.  Except  as  may  otherwise  be expressly provided by the corpo-
   20  ration, every issue of its bonds and notes shall be general  obligations
   21  of  the  corporation payable out of any revenues or moneys of the corpo-
   22  ration, subject only to any agreements with the  holders  of  particular
   23  bonds  or  notes pledging any particular revenues or moneys.  Whether or
   24  not the bonds or notes are of such form and character as to  be  negoti-
   25  able  instruments  under  the provisions of article eight of the uniform
   26  commercial code, the bonds and notes shall be and are hereby made  nego-
   27  tiable instruments within the meaning of and for all purposes of article
   28  eight  of the uniform commercial code, subject only to the provisions of
   29  the bonds or notes for registration.
   30    § 9. Subdivision 3 of section 524 of the racing, pari-mutuel  wagering
   31  and breeding law is amended to read as follows:
   32    3. [Monthly] Quarterly financial statements shall be submitted by each
   33  corporation  to  the  board  within  fifteen  days after the end of each
   34  [month] calendar quarter, and shall include a balance sheet, a statement
   35  of revenue net of expenses, statement of cash flow, a breakdown of oper-
   36  ating and administrative expenses  for  the  [month]  quarter  preceding
   37  submission  of  the  report  and  for the year to date. All such reports
   38  shall be subject to audit by the state comptroller and shall  be  public
   39  records.
   40    § 10. The opening paragraph and the opening paragraph of subdivision 1
   41  of section 527 of the racing, pari-mutuel wagering and breeding law, the
   42  opening  paragraph  as amended by chapter 94 of the laws of 2001 and the
   43  opening paragraph of subdivision 1 as amended by chapter 116 of the laws
   44  of 2001, are amended to read as follows:
   45    Each regional corporation conducting off-track betting shall  distrib-
   46  ute  all sums deposited in any pari-mutuel pool through such corporation
   47  to the holders of winning tickets therein,  providing  such  tickets  be
   48  presented  for  payment  prior  to April first of the year following the
   49  year of their purchase, less [seventeen per centum of the total deposits
   50  in pools resulting from regular bets, less nineteen per  centum  of  the
   51  total  deposits  in pools resulting from multiple bets except such pools
   52  on races conducted by a nonprofit  racing  association  which  shall  be
   53  seventeen  per centum, less twenty-five per centum of the total deposits
   54  in pools resulting from exotic bets, and less thirty-six per  centum  of
   55  the  total  deposits  in pools resulting from super exotic bets plus the
   56  breaks; less an additional two per centum of the total deposits  in  all
       S. 1409                            26                            A. 2109
 
    1  pools of bets on thoroughbred races conducted by a thoroughbred track in
    2  the Catskill region conducting a mixed meeting. The board may approve an
    3  application  from  any  regional off-track betting corporation to reduce
    4  the  retained  percentages  from  any  regional  harness track as herein
    5  required by no more than six percentage points for each pari-mutuel pool
    6  resulting from regular, multiple or exotic bets. Provided, however, from
    7  July twenty-first, nineteen hundred  ninety-five  through  July  twenty-
    8  fourth,  two  thousand  one, all such regional corporations shall retain
    9  fifteen percent of the total deposits in pools  resulting  from  regular
   10  bets  and  twenty  percent of the total deposits in pools resulting from
   11  multiple bets plus the breaks on races conducted by a  nonprofit  racing
   12  association.  Provided,  however,  for the period July twenty-fifth, two
   13  thousand one through June thirtieth, two thousand four all such regional
   14  corporations shall retain fourteen per centum of the total  deposits  in
   15  pools  resulting from regular bets, seventeen and one-half per centum of
   16  the total deposits in pools resulting from multiple bets and twenty  per
   17  centum  of  the  total  deposits in pools resulting from an exotic wager
   18  which requires the selection of the winner of six designated pari-mutuel
   19  races also known as the pick six unless there is a carry-over as defined
   20  by the rules of the board, plus the  breaks  on  races  conducted  by  a
   21  nonprofit  racing  association]  an  amount which it shall retain at the
   22  same rate established by the sending track.
   23    The disposition of the retained commission from pools  resulting  from
   24  regular,  multiple or exotic bets, as the case may be, whether placed on
   25  races run within a region or outside a region,  conducted  by  nonprofit
   26  racing associations, racing associations, harness racing associations or
   27  corporations, quarter horse racing associations or corporations or races
   28  run  outside  the  state shall be governed by the tables in paragraphs a
   29  and b of this subdivision. The rate denominated "state tax" shall repre-
   30  sent the rate of a reasonable tax imposed upon the  retained  commission
   31  for the privilege of conducting off-track pari-mutuel betting, which tax
   32  is  hereby  levied  and shall be payable in the manner set forth in this
   33  section.  Each off-track betting corporation shall pay to the racing and
   34  wagering board as a regulatory fee, which fee is hereby levied, one-half
   35  of one percent of the total daily pools of such corporation. Each corpo-
   36  ration shall also pay twenty per centum of the breaks derived from  bets
   37  on harness races and fifty per centum of the breaks derived from bets on
   38  all other races to the agriculture and New York State horse breeding and
   39  development  fund and to the thoroughbred breeding and development fund,
   40  the total of such payments to be apportioned fifty per  centum  to  each
   41  such fund. For the purposes of this section, the New York city, Suffolk,
   42  Nassau,  and  the  Catskill regions shall constitute a single region and
   43  any thoroughbred track located within the Capital District region  shall
   44  be  deemed  to be within such single region.  A "regional meeting" shall
   45  refer to either harness or thoroughbred meetings, or both, except that a
   46  nonprofit racing association shall not  be  a  regional  track  for  the
   47  purpose  of  receiving  distributions  from  bets  on thoroughbred races
   48  conducted by a thoroughbred track in the Catskill  region  conducting  a
   49  mixed  meeting.  Racing  associations  or corporations first licensed to
   50  conduct pari-mutuel racing after January first, nineteen hundred  eight-
   51  y-six  or  a harness racing association or corporation first licensed to
   52  conduct pari-mutuel wagering at a track located in Genesee County  after
   53  January  first, two thousand four, and quarter horse tracks shall not be
   54  "regional tracks"; if there is more than  one  harness  track  within  a
   55  region,  such  tracks  shall evenly divide payments made pursuant to the
   56  tables in paragraphs a and b of this subdivision when neither  track  is
       S. 1409                            27                            A. 2109
 
    1  running.  Nothing  in  this  section shall be construed to authorize the
    2  conduct of off-track betting contrary to the provisions of section  five
    3  hundred twenty-three of this article.
    4    §  11.  Section  901  of the racing, pari-mutuel wagering and breeding
    5  law, the opening paragraph and subparagraph (i) of paragraph b of subdi-
    6  vision 5 as amended by chapter 346 of the laws of 1990 and  paragraph  c
    7  of  subdivision  5  as  amended  by  chapter 659 of the laws of 1986, is
    8  amended to read as follows:
    9    § 901. Reduction  in  retained  commission.  1.  [Notwithstanding  any
   10  inconsistent  provision of sections two hundred twenty-two through seven
   11  hundred five of this chapter, any nonprofit racing  association  author-
   12  ized  to  hold a running race meet or meetings within zones one and two,
   13  for the period beginning July twenty-eighth, nineteen hundred eighty-one
   14  and ending June thirtieth, nineteen hundred eighty-three,  shall  reduce
   15  the  percentages  retained  from  all  pari-mutuel  pools of regular and
   16  multiple on-track wagers on races run at any such meet or meetings  from
   17  seventeen  per  centum  to  fifteen  per centum of such pools of regular
   18  bets, and from seventeen per centum to sixteen per centum per centum  of
   19  such  pools of multiple bets. The percentage retained from all such off-
   20  track wagers on such races shall be seventeen per centum of such pools.
   21    2. The rate of tax imposed  and  hereby  levied  upon  such  nonprofit
   22  racing  association  with  respect  to its pools of regular and multiple
   23  wagers for the period ending June thirtieth,  nineteen  hundred  eighty-
   24  three,  for  any  racing  day  for  which  such reduction is applicable,
   25  subject to other provisions of sections two hundred  twenty-two  through
   26  seven  hundred  five  of  this  chapter regarding payment and penalties,
   27  shall be three per centum of such pools of regular wagers and  four  per
   28  centum  of  such pools of multiple wagers, plus twenty per centum of the
   29  breaks allocated to such association in accordance with paragraph  f  of
   30  subdivision  three of this section. The board shall submit comprehensive
   31  reports to the  governor  and  the  legislature  on  the  effects,  both
   32  on-track  and  off-track, of the lower retention on attendance, the size
   33  of the total daily pool, the pattern of wagering and all  other  aspects
   34  of  the  impact  on  thoroughbred  and standardbred racing and wagering,
   35  together with its recommendations for further  action,  prior  to  March
   36  first,  nineteen  hundred eighty-three for the period of reduced takeout
   37  ending June thirtieth, nineteen hundred eighty-three.
   38    3. The distribution of the wagering pools to the  holders  of  winning
   39  tickets  during  such period shall be governed by the provisions of this
   40  subdivision.
   41    a. All off-track wagers shall be combined with  on-track  wagers  into
   42  single pools for calculating the odds.
   43    b.  Tentative  payments on regular and multiple wagers shall be calcu-
   44  lated on the basis of returning eighty-three per centum of the  combined
   45  pool,  less  the breaks as defined in section two hundred twenty-nine of
   46  this chapter, to holders of all winning tickets.
   47    c. Tentative payments on regular and multiple  wagers  shall  also  be
   48  calculated  on  the  basis  of returning eighty-five and eighty-four per
   49  centum, respectively, of the combined pool, less the breaks  as  defined
   50  in  section  two  hundred twenty-nine of this chapter, to holders of all
   51  winning tickets.
   52    d.  Regional  off-track  betting  corporations  shall  distribute  the
   53  amounts  determined  in  paragraph  b  of this subdivision to holders of
   54  winning tickets issued by them retaining the amounts required by  subdi-
   55  vision three of section five hundred thirty-three of this chapter.
       S. 1409                            28                            A. 2109
 
    1    e.  After  deducting  the  amounts  retained by the regional off-track
    2  betting corporations pursuant to subdivision one  of  this  section  and
    3  paragraph d of this subdivision, the balance of the pool remaining after
    4  such  distribution  shall  be available to nonprofit racing associations
    5  for  payment to holders of winning tickets issued by them. Such payments
    6  shall be in the amounts determined in paragraph c of this subdivision.
    7    f. The amount of the total combined pool less the amounts of  combined
    8  retention  and  combined payouts shall be credited to a special breakage
    9  account. The amount in such account at the end of  each  calendar  month
   10  shall  be distributed as breaks to each nonprofit racing association and
   11  regional off-track betting corporation.
   12    g. In the event that distributions required to  be  made  pursuant  to
   13  paragraph  e  of  this  subdivision are in excess of the total amount of
   14  pari-mutuel pool available to the nonprofit  racing  associations,  then
   15  each  such association may withdraw an amount from the breakage account,
   16  established pursuant to paragraph f of this subdivision,  sufficient  to
   17  meet  such excess requirement. To the extent that moneys in the breakage
   18  account are insufficient, then  each  such  association  will  meet  its
   19  excess requirement from its normal operating revenues.
   20    h.  The  operation  of  this section shall be subject to the rules and
   21  regulations of the state racing and wagering board.
   22    4.] Notwithstanding the provisions of subdivision two of section  five
   23  hundred twenty-three of this chapter, the board shall authorize regional
   24  off-track  betting  corporations to accept additional wagers on multiple
   25  betting opportunities on races conducted by any nonprofit racing associ-
   26  ation, provided, however, that from July thirty-first, nineteen  hundred
   27  seventy-eight  through January first, nineteen hundred seventy-nine, the
   28  following wagering opportunities  shall  be  authorized  only  for  such
   29  corporations:
   30    a.  An  "additional daily double," defined as a single bet or wager to
   31  select the winning horses in any two races other  than  the  first  four
   32  races, and
   33    b. A "quinella," defined as a single bet or wager to select the horses
   34  finishing first and second, in either order of finish, in the same race.
   35  The  "quinella"  shall  be offered on as many as three races on each day
   36  racing is conducted.
   37    Provided, however, that on and after January first,  nineteen  hundred
   38  seventy-nine,  nonprofit  racing  associations  may  elect to offer such
   39  similar additional daily double and quinella wagering opportunities.  If
   40  such  associations  offer  two or more quinellas, as defined herein, the
   41  provisions of section five hundred  twenty-three  of  this  chapter,  as
   42  modified  by  the  provisions of subdivisions one, two and three of this
   43  section, with respect to combined pools shall apply with respect to such
   44  wagering opportunities. At any time such associations do  not  offer  at
   45  least  two quinellas, the provisions of this subdivision with respect to
   46  separate authorizations for regional corporations shall remain in effect
   47  with respect to such quinella wagers.
   48    [If such associations offer an additional  daily  double,  as  defined
   49  herein,  the  provisions  of  section  five hundred twenty-three of this
   50  chapter, as modified by the provisions  of  subdivisions  one,  two  and
   51  three  of  this section, with respect to combined pools shall apply with
   52  respect to such wagering opportunities.] At any time  such  associations
   53  do  not  offer  such  an additional daily double, the provisions of this
   54  subdivision with respect to separate authorizations for regional  corpo-
   55  rations  shall remain in effect with respect to such an additional daily
   56  double wager.
       S. 1409                            29                            A. 2109
 
    1    Whenever regional off-track betting corporations offer wagers pursuant
    2  to this subdivision that are not combined in a common pool with  similar
    3  on-track  wagers,  the  provisions  of subdivision eight of section five
    4  hundred twenty-three of this chapter shall apply to such wagers.
    5    [5]2.  a.    In  addition  to  the authority granted under subdivision
    6  [four] one of this section, the board shall  require,  under  conditions
    7  subject  to  its  approval, the track operator for such nonprofit racing
    8  associations to provide  direct  transmissions  into  selected  regional
    9  off-track  facilities  of  a current "live call of the race," defined as
   10  the current positions of the horses at specified  places  on  the  track
   11  during  the  race.  The track operator itself may perform the broadcast;
   12  or, provide appropriate space and facilities to enable a single,  alter-
   13  native  broadcast  to  be  performed solely for the use of regional off-
   14  track betting corporations, the expense of such alternative broadcast to
   15  be borne by such  regional  corporations,  at  the  discretion  of  such
   16  regional  corporations.  In  either  case,  all incremental transmission
   17  costs are to be borne by such regional corporations.
   18    b. The regional off-track betting facilities, each of which shall have
   19  been in operation for six months or more prior to receiving such  trans-
   20  missions and at least forty percent of which shall have had a total pool
   21  on  races of such nonprofit racing associations during such period equal
   22  to or greater than the median pool on such races in all such  facilities
   23  in  such county, that shall receive such transmissions are authorized as
   24  follows, provided that such requirements with  respect  to  duration  of
   25  operation  and  total pool shall not apply to facilities in the New York
   26  city region:
   27    (i) for the New York city region, any facility, located more than five
   28  miles from such operating non-profit racing association track, for which
   29  the New York city off-track betting  corporation  requests  such  trans-
   30  missions of such nonprofit racing associations.
   31    (ii)  for  the  Nassau region, one facility located at least ten miles
   32  from any thoroughbred track operated by such  nonprofit  racing  associ-
   33  ations.
   34    (iii) for the Suffolk region, one facility.
   35    (iv)  for  the  Catskill  and  Western  regions,  six facilities each,
   36  provided, however, that no such transmissions are  authorized  into  the
   37  portion  of the Western and Catskill regions in the thoroughbred special
   38  betting district on those days that a thoroughbred track  is  conducting
   39  racing in such special betting district.
   40    (v)  for the Capital District region, six facilities, provided, howev-
   41  er, that no such transmissions are authorized into the Capital  District
   42  region  on  those days that a nonprofit racing association is conducting
   43  races at a track located within such region. Nothing  in  this  subpara-
   44  graph shall prohibit such region and a nonprofit racing association from
   45  entering  into  an agreement to provide such transmissions in additional
   46  facilities subject to the restrictions in this subparagraph.
   47    c. The board shall approve the request of each such regional off-track
   48  betting corporation to transmit the call of the race, beginning  January
   49  first, nineteen hundred seventy-nine, into an additional, like number of
   50  facilities  as  specified in paragraph b of this subdivision and subject
   51  to the conditions in such paragraph.  Provided,  however,  that  nothing
   52  shall  prohibit  such  nonprofit  racing  association from entering into
   53  agreements with such regional off-track betting corporations designating
   54  additional facilities within the  regions  of  such  regional  off-track
   55  betting  corporations  that  may offer a "live call of the race", except
   56  that no such transmissions are authorized into the portion of the  West-
       S. 1409                            30                            A. 2109
 
    1  ern and Catskill regions in the thoroughbred special betting district on
    2  those  days  that  a  thoroughbred  track  is  conducting racing in such
    3  special betting district.
    4    d. Notwithstanding any provisions to the contrary in this subdivision,
    5  during and only during the period that such nonprofit racing association
    6  shall  conduct  races at a racetrack not within the counties of Suffolk,
    7  Nassau and the five counties comprising the city of New York, the  track
    8  operator  for  such  nonprofit  racing  association shall provide direct
    9  transmissions into all of the facilities operated by  off-track  betting
   10  corporations,  except  those  within the Capital District region and any
   11  facilities within a thoroughbred special betting  district,  other  than
   12  those  facilities authorized to accept wagers on races conducted by such
   13  nonprofit association, on those days that a thoroughbred racing track is
   14  conducting racing in such special betting district, of a  current  "live
   15  call  of  the  race"  as defined, and subject to the conditions provided
   16  for, in paragraph a of  this  subdivision.  Provided,  however,  nothing
   17  shall  prohibit  such nonprofit racing association from entering into an
   18  agreement with the Capital  District  regional  corporation  designating
   19  specific  facilities within the Capital District region that may offer a
   20  "live call of the race".
   21    [6]3.  A nonprofit racing association shall make available such  space
   22  and  facilities  as may be required to enable regional off-track betting
   23  corporations to obtain the information specified in section two  hundred
   24  twenty-six of this chapter for transmission to patrons in the facilities
   25  of  such  corporations.  In  addition, such associations shall cooperate
   26  with such corporations in order to develop a  system  whereby  off-track
   27  wagers  are combined with on-track wagers in a common pool, and the odds
   28  or potential payoff reflecting or based upon that pool are displayed  at
   29  off-track  facilities periodically during the time preceding the race on
   30  which such wagers are made. The purpose  of  the  system  is  to  enable
   31  wagers  placed  off-track to be combined concurrently with wagers placed
   32  on-track until as close to the beginning of the race as  is  technically
   33  feasible,  with due regard for the security and accuracy of such system.
   34  The costs of the changes adopted pursuant to this section shall be borne
   35  by those regional off-track betting  corporations  electing  to  receive
   36  such  information  or  to  combine the on-track and off-track pools on a
   37  more timely basis.
   38    [7] 4.  Notwithstanding any other provision of law, the Western region
   39  off-track betting corporation is hereby authorized to develop a  system,
   40  subject  to approval of the board, whereby off-track wagers are combined
   41  on a current basis with on-track wagers on races conducted by an associ-
   42  ation or corporation licensed to conduct thoroughbred races at  a  track
   43  located within the Western region. Such association or corporation shall
   44  cooperate in the provision of such wagers and shall also provide on such
   45  races  direct  transmission  into the facilities of such regional corpo-
   46  ration of a current "live call of the race" as defined in paragraph a of
   47  subdivision [five] two of this section.
   48    § 12. Paragraphs a and c of  subdivision  1  of  section  905  of  the
   49  racing, pari-mutuel wagering and breeding law, paragraph a as amended by
   50  chapter  919  of  the laws of 1986 and paragraph c as amended by chapter
   51  524 of the laws of 1991, are amended to read as follows:
   52    a. The applicable state tax provided for in  paragraphs  a  and  b  of
   53  subdivision  one  of  section  five hundred twenty-seven of this chapter
   54  shall be one-half per centum for regular, multiple and exotic bets.  Any
   55  harness racing or association or corporation, nonprofit  racing  associ-
   56  ation  or  thoroughbred  racing  association  or  corporation authorized
       S. 1409                            31                            A. 2109
 
    1  pursuant to this section shall pay to the racing and wagering board as a
    2  regulatory fee, which fee is hereby levied, one-half of one  percent  of
    3  the total daily pari-mutuel pools.
    4    c.  Every  association,  corporation and non-profit racing association
    5  shall distribute all sums deposited in any pari-mutuel pool to the hold-
    6  ers of winning tickets therein, providing such tickets be presented  for
    7  payment  before  April  first  of  the  year following the year of their
    8  purchase, less [seventeen per centum of  the  total  deposits  in  pools
    9  resulting  from  regular  bets  and  multiple  bets less twenty-five per
   10  centum of the total deposits in pools resulting from exotic  bets,  and,
   11  with  respect  to  super exotic wagers on the Breeder's Cup events, less
   12  thirty-six per centum] an amount which it shall retain at the same  rate
   13  established by the sending track plus the breaks.
   14    §  13.  Section 905-a of the racing, pari-mutuel wagering and breeding
   15  law is REPEALED.
   16    § 14. Section 906 of the racing, pari-mutuel wagering and breeding law
   17  is REPEALED.
   18    § 15. Subdivisions 3 and 4 of section 907 of the  racing,  pari-mutuel
   19  wagering  and breeding law, subdivision 3 as added by chapter 346 of the
   20  laws of 1990, subparagraph (i)  of  paragraph  a  of  subdivision  3  as
   21  amended  by chapter 524 of the laws of 1991 and subdivision 4 as amended
   22  by chapter 445 of the laws of 1997, are amended to read as follows:
   23    3. Combining New York wagers on horse races conducted in other  states
   24  or foreign countries with wagers on such races made elsewhere.
   25    a.  The board may authorize the combination of wagers made in New York
   26  state upon the outcome of  out-of-state  or  foreign  horse  races  with
   27  wagers made upon such races elsewhere in accordance with rules and regu-
   28  lations  of  the  board  which  shall  include but not be limited to the
   29  following provisions:
   30    (i) [that only races designated as special events pursuant to sections
   31  nine hundred five, nine hundred five-a and  nine  hundred  six  of  this
   32  article shall be eligible for such authorization;
   33    (ii)]  that  if such combination is authorized that all New York state
   34  operators must participate therein to assure uniform New York  odds  and
   35  pay-outs;
   36    [(iii)]  (ii)  that if the out-of-state or foreign computation is made
   37  on the basis of different retention or breakage rates and (A) such  out-
   38  of-state or foreign laws do not permit New York wagers to be computed in
   39  accordance  with  New York retention and breakage rates, that such vari-
   40  ation does not exceed twenty percent and  will  be  allocated  pro  rata
   41  among  winning wagers in New York state and recipients of such retention
   42  and breakage rates in New York state, or (B)  if  such  out-of-state  or
   43  foreign  laws  do permit New York bets to be computed in accordance with
   44  New York retention and breakage rates that such rates  will  be  applied
   45  and that the out-of-state or foreign operator doing such calculations is
   46  willing and able to properly perform such function;
   47    [(iv)]  (iii)  that  the  out-of-state or foreign rules governing such
   48  wagers are understandable to New York wagerers and in the best  judgment
   49  of  the board will not deviate substantially from customary and standard
   50  pari-mutuel practice in general;
   51    [(v)] (iv) that the New York operators are able to perform such trans-
   52  mission and computer retrieval functions as may be required;
   53    [(vi)] (v) that such combination will enhance  the  best  interest  of
   54  racing generally; and
   55    [(vii)]  (vi) such other rules and regulations as may be deemed neces-
   56  sary and appropriate by the board.
       S. 1409                            32                            A. 2109
 
    1    b. Nothing herein shall be construed to authorize or prescribe any act
    2  contrary to federal law.
    3    4. In those instances in which the retention rates of the out-of-state
    4  track are different from the retention rates authorized in this section,
    5  distribution  to  each of the entities entitled to receive payment under
    6  section five hundred twenty-seven or article ten of this  chapter  after
    7  payment of state taxes and regulatory fees shall be adjusted proportion-
    8  ately  in an appropriate manner to account for higher or lower retention
    9  rates. For purposes of determining payment on  out-of-state  wagers  the
   10  retention  rate shall be the amount sufficient to pay holders of winning
   11  wagers plus any payments required to be made to the  out-of-state  track
   12  which exceeds two per centum of handle.
   13    §  16. Subdivision 3 of section 1007 of the racing, pari-mutuel wager-
   14  ing and breeding law is amended by adding a new paragraph g to  read  as
   15  follows:
   16    g. Any harness racing or association or corporation, non-profit racing
   17  association or thoroughbred racing association or corporation authorized
   18  pursuant to this section shall pay to the racing and wagering board as a
   19  regulatory  fee,  which fee is hereby levied, one-half of one percent of
   20  the total daily pari-mutuel pools.
   21    § 17. Subdivisions 6 and 7 of section 1007 of the racing,  pari-mutuel
   22  wagering and breeding law are REPEALED.
   23    §  18.  Paragraph  b  of  subdivision 3 of section 1008 of the racing,
   24  pari-mutuel wagering and breeding law, as amended by chapter 286 of  the
   25  laws of 1985, is amended to read as follows:
   26    b.  Of  the sums received by the sending track, fifty percent shall be
   27  distributed to purses in addition  to  moneys  distributed  pursuant  to
   28  section  five  hundred  twenty-seven  of  this  chapter.   The off-track
   29  betting corporation shall pay to the racing  and  wagering  board  as  a
   30  regulatory  fee,  which fee is hereby levied, one-half of one percent of
   31  the total daily pools.
   32    § 19. Subdivision 4 of section 1009 of the racing, pari-mutuel  wager-
   33  ing  and  breeding law is amended by adding a new paragraph d to read as
   34  follows:
   35    d. The operator shall pay to the racing and wagering board as a  regu-
   36  latory  fee,  which fee is hereby levied, one-half of one percent of the
   37  total daily pools.
   38    § 20. Section 1012 of the racing, pari-mutuel  wagering  and  breeding
   39  law,  as added by chapter 346 of the laws of 1990, subdivisions 1, 2 and
   40  paragraph a of subdivision 3 as amended by chapter 503 of  the  laws  of
   41  1992 and subdivision 6 as amended by chapter 113 of the laws of 2002, is
   42  amended to read as follows:
   43    §  1012.  Telephone accounts and telephone wagering. Any regional off-
   44  track betting corporation, and  any  non-profit  racing  association  or
   45  harness,  thoroughbred,  quarter horse racing association or corporation
   46  licensed to conduct pari-mutuel racing may  maintain  telephone  betting
   47  accounts  for  wagers placed on races and special events offered by such
   48  corporation, corporation or association.
   49    1. [A minimum balance  for  a  telephone  account  maintained  by  any
   50  harness,  thoroughbred,  or  quarter  horse racing association or corpo-
   51  ration shall be not less than three hundred dollars at the time  of  the
   52  wager.]  Any  regional  off-track betting corporation and any non-profit
   53  racing association or harness, thoroughbred, quarter horse racing  asso-
   54  ciation  or  corporation  licensed  to  conduct  pari-mutuel  racing may
   55  require a minimum account balance in an amount to be determined by  such
   56  entity.
       S. 1409                            33                            A. 2109
 
    1    2. [A minimum balance for a telephone account maintained by a non-pro-
    2  fit racing association shall be not less than four hundred fifty dollars
    3  at  the time of the wager for residents of New York or contiguous states
    4  and not less than one hundred dollars at the time of the wager for resi-
    5  dents of other states not contiguous with New York state.
    6    3.]   a.  Any  regional  off-track  betting  corporation  may  suspend
    7  collection of the surcharge imposed under section five  hundred  thirty-
    8  two of this chapter on winning wagers placed in telephone accounts main-
    9  tained  by  such  regional corporation [provided that such account has a
   10  minimum balance of not less than three hundred dollars at  the  time  of
   11  wager].
   12    b.  In  a  city  of one million or more any regional off-track betting
   13  corporation, with the approval of the mayor of such  city,  may  suspend
   14  collection  of  the surcharge imposed under section five hundred thirty-
   15  two of this chapter in winning wagers placed in telephone accounts main-
   16  tained by such regional corporation.
   17    [4.] 3. Any telephone  account  maintained  by  a  regional  off-track
   18  betting corporation, non-profit racing association or harness, thorough-
   19  bred,  quarter  horse  association or corporation, with inactivity for a
   20  period of three years shall be forfeited and paid to the commissioner of
   21  taxation and finance. Such amounts when collected shall be paid  by  the
   22  commissioner  of taxation and finance into the general fund of the state
   23  treasury.
   24    [5.] 4. The maintenance  and  operation  of  such  telephone  accounts
   25  provided  for  in this section shall be subject to rules and regulations
   26  of the state racing and wagering board. The board shall include in  such
   27  regulation  a  requirement that telephone account information pertaining
   28  to surcharge and nonsurcharge telephone  accounts  shall  be  separately
   29  reported.
   30    [6.]  5.  The  provisions  of  this  section shall expire and be of no
   31  further force and effect after June thirtieth, two thousand seven.
   32    § 21. Subdivision 1 of section 1015 of the racing, pari-mutuel  wager-
   33  ing  and  breeding law, as added by chapter 281 of the laws of 1994, the
   34  opening paragraph as amended by chapter 113 of  the  laws  of  2002  and
   35  paragraphs  b  and  j  as  amended  by chapter 2 of the laws of 1995, is
   36  amended to read as follows:
   37    1. The provisions of this section shall  govern  the  simulcasting  of
   38  races conducted at thoroughbred tracks located in another state or coun-
   39  try  on any day during which a non-profit racing association is conduct-
   40  ing a race meeting in Saratoga county at Saratoga thoroughbred racetrack
   41  until June thirtieth, two thousand seven and on any  day  regardless  of
   42  whether  or  not  a  non-profit  racing association is conducting a race
   43  meeting in Saratoga county at Saratoga thoroughbred racetrack after June
   44  thirtieth, two thousand seven. On any day on which a  non-profit  racing
   45  association has not scheduled a racing program but a thoroughbred racing
   46  corporation  located  within  the state is conducting racing, every off-
   47  track betting corporation branch office and every simulcasting  facility
   48  licensed  in  accordance  with  section  one  thousand  seven (that have
   49  entered into a written agreement  with  such  facility's  representative
   50  horsemen's  organization, as approved by the board), one thousand eight,
   51  or one thousand nine of this  article  shall  be  authorized  to  accept
   52  wagers  and  display  the live simulcast signal from thoroughbred tracks
   53  located in another state or foreign country  subject  to  the  following
   54  provisions:
   55    a. Each off-track betting branch office accepting wagers on an out-of-
   56  state  track  shall accept wagers on races run at the in-state track and
       S. 1409                            34                            A. 2109
 
    1  every simulcasting facility licensed in  accordance  with  sections  one
    2  thousand seven, one thousand eight and one thousand nine of this article
    3  which  is  accepting  wagers and displaying the simulcast signal from an
    4  out-of-state  track shall similarly accept wagers and display the signal
    5  from the in-state track.
    6    b. [During those hours that an in-state thoroughbred track is conduct-
    7  ing a racing program, simulcasting]  Simulcasting  facilities  shall  be
    8  [limited]  authorized to [displaying] accept wagers and display the live
    9  simulcast signal from [one] out-of-state thoroughbred  [track,  although
   10  no  limitation  shall be placed on the acceptance of wagers from out-of-
   11  state tracks by off-track betting facilities except as may be imposed by
   12  the racing and wagering board and provided further that no wager may  be
   13  accepted  on  races  run  at  any out-of-state track located closer than
   14  seventeen miles from the state border] tracks.
   15    c. [On any day on which out-of-state simulcasting  is  authorized  for
   16  the time period preceding and following the in-state racing program, the
   17  off-track  betting  branch  offices and simulcast facilities licensed in
   18  accordance with sections one thousand seven, one thousand eight and  one
   19  thousand  nine  of this article may accept wagers and display the signal
   20  from up to three  out-of-state  or  out-of-country  thoroughbred  tracks
   21  provided that not more than two such programs shall be displayed contem-
   22  poraneously  and  that no such signal shall be accepted between 7:30 and
   23  11:59 postmeridian without the written consent of any  regional  harness
   24  track.
   25    d.] If a regional harness track is conducting racing on a day on which
   26  out-of-state  simulcasting  is  authorized, the off-track betting corpo-
   27  ration shall be required to accept wagers and display the live simulcast
   28  signal of such races provided the terms  and  conditions  for  accepting
   29  such  signal  are no less favorable than those in effect on April first,
   30  nineteen hundred ninety-three.
   31    [e] d.  Each off-track betting corporation shall determine the average
   32  daily handle on the in-state thoroughbred corporation, the average daily
   33  handle from out-of-state tracks and the average total daily payment made
   34  to the in-state thoroughbred track on each day from April  first,  nine-
   35  teen   hundred  ninety-three  through  December  thirty-first,  nineteen
   36  hundred ninety-three on which the off-track betting corporation accepted
   37  wagers on races conducted at such track and races conducted on  an  out-
   38  of-state  track on a day on which no scheduled races were conducted by a
   39  non-profit racing association. This calculation shall be provided to the
   40  racing and wagering board  and  the  chief  executive  officers  of  the
   41  in-state thoroughbred track and the horsemen's organization. If there is
   42  a  dispute  as to the amount of such calculations, written documentation
   43  from the off-track betting corporation and the track, shall be  supplied
   44  to the racing and wagering board which shall make a determination of the
   45  correct  amounts  which  determination shall be final and binding on all
   46  parties.
   47    [f] e.  An amount equal to the calculated number shall  be  determined
   48  to be the amount payable to the in-state thoroughbred racing corporation
   49  as  though  such  number  were  calculated  on  actual handle, using the
   50  payment schedules, including distribution to purses, of  article  five-A
   51  and  article  ten of this chapter provided such track conducts a program
   52  of racing equivalent in racing dates and wagering opportunities  to  the
   53  nineteen hundred ninety-three program.
   54    [g]  f.    The  amount  shall  be  distributed  in accordance with the
   55  provisions of this section. The board shall determine the amount of  and
   56  dates  of  such  payments,  which  dates  shall,  as far as practicable,
       S. 1409                            35                            A. 2109
 
    1  reflect the payments made to such track during the comparable period  of
    2  nineteen hundred ninety-three.
    3    [h]  g.  (1) At the conclusion of the thoroughbred track corporation's
    4  nineteen hundred ninety-four racing season or as shortly  thereafter  as
    5  possible  but  not later than December twentieth, nineteen hundred nine-
    6  ty-four, the off-track betting corporations and the racing and  wagering
    7  board  shall  determine  the  average  daily  handle  for  the  in-state
    8  thoroughbred racing corporation and the average daily handle  for  races
    9  conducted  at  out-of-state  or  out-of-country tracks. If average daily
   10  handle for any off-track betting corporation exceeds by ten percent  the
   11  average  daily  handle as calculated in paragraph [e] d of this subdivi-
   12  sion, such off-track betting  corporation  shall  pay  to  the  in-state
   13  thoroughbred  racing corporation an amount calculated by multiplying the
   14  average daily handle in excess of one hundred ten percent of the average
   15  daily handle of nineteen hundred ninety-three by the  effective  commis-
   16  sion  rate  paid  by  such corporation in nineteen hundred ninety-three.
   17  Such calculation shall be computed separately  for  handle  on  in-state
   18  tracks and handle on out-of-state tracks.
   19    (2)  For purposes of this section, the effective commission rate shall
   20  be determined by dividing the total commission paid by the total  handle
   21  rounded to the nearest hundredth.
   22    (3) For purposes of this chapter, total and average daily handle shall
   23  have the same meaning as total and average daily wagers or bets.
   24    [i] h.  (1) Licensed harness tracks shall receive in lieu of any other
   25  payments  on  wagers  placed at off-track betting facilities outside the
   26  special betting district on races conducted by an in-state  thoroughbred
   27  racing corporation, two and eight-tenths percent on regular and multiple
   28  bets  during  a regional meeting and one and nine-tenths percent of such
   29  bets if there is no regional meeting and four and  eight-tenths  percent
   30  on  exotic  bets  on days on which there is a regional meeting and three
   31  and four-tenths percent of such bets if there is no regional meeting.
   32    (2) (i) In addition, licensed harness tracks  shall  receive  one  and
   33  one-half  per  centum  on  total handle on races conducted at an out-of-
   34  state or out-of-country thoroughbred track provided such  harness  track
   35  is  neither  accepting  wagers nor displaying the signal from an out-of-
   36  state track.
   37    (ii) In those regions in which there is more than one licensed harness
   38  track, if no track is accepting wagers or displaying the live  simulcast
   39  signal from the out-of-state track, the total sum shall be divided among
   40  the  tracks  in  proportion  to  the  ratio  the  wagers placed on races
   41  conducted by each track  bears  to  the  corporation's  total  in-region
   42  harness handle. If one or more tracks are accepting wagers or displaying
   43  the live simulcast signal, the total amount shall be divided among those
   44  tracks  not  accepting  wagers or displaying the simulcast signal for an
   45  out-of-state track.
   46    (3) The terms used in this section shall have the  same  applicability
   47  and  meaning as interpreted and applied in sections five hundred twenty-
   48  three and five hundred twenty-seven of this chapter.
   49    [j] i.   Any facility authorized  to  accept  wagers  on  out-of-state
   50  tracks  shall  distribute  all sums deposited in any pari-mutuel pool to
   51  the holders of  winning  tickets  therein,  provided  such  tickets  are
   52  presented  for  payment  prior  to April first of the year following the
   53  year of their purchase less eighteen per centum of the total deposits in
   54  pools resulting from regular bets, less twenty-one  per  centum  of  the
   55  total  deposits  in  pools resulting from multiple bets, less twenty-six
   56  per centum of the total deposits in pools resulting  from  exotic  bets,
       S. 1409                            36                            A. 2109
 
    1  less thirty-six per centum of the total deposits in pools resulting from
    2  super  exotic  bets  plus  the  breaks as defined in section two hundred
    3  twenty-eight of this chapter except that the retention rates and  breaks
    4  shall  be  as  prescribed by another state or country if such wagers are
    5  combined with those in the other state or country  pursuant  to  section
    6  nine hundred seven of this chapter.
    7    (i)  of  the sum so retained, the applicable tax rate shall be one and
    8  one-half percent of all such wagers plus fifty percent  of  the  breaks;
    9  provided,  however,  fifty percent of the breaks accruing from off-track
   10  betting corporations licensed in accordance with  section  one  thousand
   11  eight of this article and from simulcast theaters licensed in accordance
   12  with  section  one  thousand  nine of this article, shall be paid to the
   13  agriculture and New York state horse breeding and development  fund  and
   14  to  the  thoroughbred  breeding  and development fund, the total of such
   15  payments to be apportioned fifty per centum to each such fund.
   16    (ii) of the sums so retained, one-half of one per centum of all wagers
   17  shall be paid to the New York state thoroughbred breeding  and  develop-
   18  ment  fund,  except  that  of  the  sums  so  retained on such wagers at
   19  licensed harness tracks, one-half of one per centum shall be paid to the
   20  agricultural and New York State horse breeding and development fund.
   21    (iii) of the sum so retained, two percent of all wagers shall be  paid
   22  to  a  non-profit  racing  association  to  be  used exclusively for the
   23  purpose of increasing purses, including  stakes,  premiums  and  prizes,
   24  provided  further  that  such amount shall not exceed the amount paid to
   25  such non-profit racing association in nineteen hundred ninety-three from
   26  wagers placed on out-of-state tracks on a day when no racing  was  being
   27  conducted  by the non-profit racing association and a racing program was
   28  being conducted by a thoroughbred  racing  corporation  located  in  the
   29  state. The excess, if any, shall be paid to a thoroughbred racing corpo-
   30  ration  located in the state until August thirty-first, nineteen hundred
   31  ninety-five and on and after July nineteen, nineteen hundred  ninety-six
   32  to  be  used exclusively for the purpose of increasing purses, including
   33  stakes, premiums and prizes. An additional two percent  of  the  sum  so
   34  retained  shall  be  paid  to non-profit racing association until August
   35  thirty-first,  nineteen  hundred  ninety-five,  provided  however  fifty
   36  percent  of  such amounts shall be used exclusively for purses at a non-
   37  profit racing association.
   38    (iv) any thoroughbred racing association or corporation or  non-profit
   39  racing  association or harness racing association or corporation or off-
   40  track betting corporation authorized pursuant to this section shall  pay
   41  to the racing and wagering board as a regulatory fee, which fee is here-
   42  by levied, one-half of one percent of all wagering pools.
   43    [k] j.  (1) All wagers authorized by this section shall be combined so
   44  as  to  produce  common pari-mutuel betting pools for the calculation of
   45  odds and the determination of payouts from  such  pools,  which  payouts
   46  shall be made pursuant to the rules of the board. Every location author-
   47  ized  to  accept wagers or display simulcasting pursuant to this section
   48  shall be subject to all appropriate provisions of this chapter.
   49    (2) Every regional off-track betting  corporation  may  simulcast  all
   50  out-of-state  races authorized by this section at any licensed simulcast
   51  facility except for those facilities located in a  thoroughbred  special
   52  betting district.
   53    Facilities  located  in  such special betting district may display the
   54  simulcast signal with the permission of the thoroughbred  track  located
   55  in  such  district  or if such track displays the signal from an out-of-
   56  state or out-of-country track.
       S. 1409                            37                            A. 2109
 
    1    [l] k.   The provisions of section five  hundred  thirty-two  of  this
    2  chapter shall apply as follows:
    3    (1)  for all wagers placed at facilities licensed to receive such out-
    4  of-state or out-of-country simulcasts in  accordance  with  section  one
    5  thousand  eight  of  this  article,  distribution shall first be made in
    6  accordance with subdivision three-a of section five  hundred  thirty-two
    7  of  this  chapter,  and  then  fifty  percent of the remaining amount in
    8  accordance with paragraph a of subdivision three of section five hundred
    9  thirty-two of this chapter and the other fifty percent shall be retained
   10  by such operator for its general purpose.
   11    (2) upon application of  any  facility  licensed  in  accordance  with
   12  sections  one  thousand seven and one thousand nine of this article, the
   13  board shall authorize the imposition  of  a  sum  equal  to  the  amount
   14  authorized  by  section  five  hundred  thirty-two of this chapter which
   15  shall apply to wagers placed  at  such  facility  [except  those  events
   16  described  as special events]. Such sums received by facilities licensed
   17  in accordance with section one thousand nine of this  article  shall  be
   18  retained  for the general purpose of the corporation. Such sums received
   19  by such facilities licensed in  accordance  with  section  one  thousand
   20  seven of this article shall be distributed as follows:
   21    (i)  fifty  percent  shall  be  used exclusively for purses awarded in
   22  races conducted by such licensed facility; and
   23    (ii) fifty percent shall be retained by such licensed facility for its
   24  general purposes.
   25    2. Nothing in this section shall be construed to prohibit the  accept-
   26  ance  of  wagers  on  races conducted at out-of-state tracks without the
   27  display of the live simulcast  signal  if  authorized  under  any  other
   28  provision of this chapter.
   29    §  22. Subdivisions 2, 3 and 4 of section 1016 of the racing, pari-mu-
   30  tuel wagering and breeding law, as added by chapter 281 of the  laws  of
   31  1994  and  the  opening paragraph of subdivision 2 as amended by chapter
   32  445 of the laws of 1997, are amended to read as follows:
   33    2. Harness racing associations or corporations subject  to  a  written
   34  agreement   with  such  association's  or  corporation's  representative
   35  horsemen's association  and  off-track  betting  facilities  are  hereby
   36  authorized  to accept wagers and display the signal of [up to five] out-
   37  of-state harness tracks provided that [no such signals may be  displayed
   38  prior  to  6:00  post  meridian  without  such track's and the operating
   39  thoroughbred track's written approval and]:
   40    a. the payments to the out-of-state track  for  accepting  wagers  and
   41  displaying  the  live  simulcast signals of these races shall not exceed
   42  two percent of total handle for facilities licensed in  accordance  with
   43  section  one  thousand  eight  and one thousand nine of this chapter and
   44  three percent of total handle for those facilities licensed  in  accord-
   45  ance with section one thousand seven of this chapter.
   46    b.  all off-track betting branches are permitted to accept such wagers
   47  and that all simulcast facilities licensed in accordance  with  sections
   48  one  thousand  eight and one thousand nine of this article are permitted
   49  to display the live simulcast signal under the same terms and conditions
   50  as facilities licensed in accordance with section one thousand seven  of
   51  this article;
   52    c. on any day on which a harness track is conducting a racing program,
   53  it shall offer its signal to all off-track betting facilities authorized
   54  to  receive  such  signals  under terms and conditions no less favorable
   55  than those in effect on March  thirty-first,  nineteen  hundred  ninety-
   56  three;  and  that  in addition to any out-of-state simulcasting program,
       S. 1409                            38                            A. 2109
 
    1  the track shall accept wagers and display the signal from at  least  one
    2  in-state harness track;
    3    d.  on  any  day  on which a harness association or corporation is not
    4  conducting a racing program, it shall accept the signal from  not  fewer
    5  than  two  in-state  harness  tracks  conducting  a  program except this
    6  requirement may be waived by the written consent of those harness tracks
    7  conducting the race meeting;
    8    e. every  off-track  betting  branch  office  and  simulcast  facility
    9  licensed in accordance with sections one thousand eight and one thousand
   10  nine  of  this  article, as a condition to accepting out-of-state wagers
   11  and displaying the live simulcast signal of  such  races,  shall  accept
   12  wagers and display the simulcast signal of its regional harness track at
   13  all  locations  at  which out-of-state wagers are accepted or the signal
   14  displayed. If the regional harness [tack] track is not conducting a race
   15  meeting but another harness association in the  state  is  conducting  a
   16  meeting,  the  off-track  betting facilities as a condition of accepting
   17  out-of-state wagers shall accept wagers and display the signal  from  at
   18  least one in-state harness track;
   19    f.  [no  harness  track  shall  accept wagers or display the simulcast
   20  signal from an out-of-state harness track on more than four days in  any
   21  week  unless  in  the immediately preceding calendar month an average of
   22  four or more live racing programs per week were conducted, nor shall  it
   23  accept  wagers  on  more  than five days in any week unless in the imme-
   24  diately preceding calendar month an average of five or more live harness
   25  racing programs per week were conducted at such track;
   26    g. for purposes of this subdivision, a "live harness  racing  program"
   27  shall  mean  a  program  consisting  of not fewer than nine live harness
   28  races. The provisions of this subdivision shall not be applicable if the
   29  reduction in racing dates results from either weather conditions or  the
   30  lack  of  available  horses at such licensed harness track in accordance
   31  with a certification attesting to such horse shortage  by  the  licensed
   32  harness  track's  horsemen's  organization or association. Exemptions to
   33  this provision shall be approved by the racing and wagering board upon a
   34  request by the affected track;
   35    h.] No off-track betting facility shall accept wagers or  display  the
   36  simulcast signal from an out-of-state harness track without an agreement
   37  with  the  regional  track,  provided,  however,  that off-track betting
   38  facilities  shall  have  the  right  to  display  any  simulcast  signal
   39  displayed  by  a regional harness track and any such agreement shall not
   40  unreasonably be withheld.
   41    3. Any facility authorized to accept  wagers  on  out-of-state  tracks
   42  shall distribute all sums deposited in any pari-mutuel pool to the hold-
   43  ers  of  any  tickets  therein  provided  such tickets are presented for
   44  payment prior to April first of the year following  the  year  of  their
   45  purchase  less  nineteen per centum of total deposits in pools resulting
   46  from regular bets, less twenty-one per centum of total deposits of pools
   47  resulting from multiple bets, less  twenty-seven  per  centum  of  total
   48  deposits of pools resulting from exotic bets, less thirty-six per centum
   49  of  total  deposits  of  pools resulting from super exotic bets plus the
   50  breaks as defined in section three  hundred  eighteen  of  this  chapter
   51  except  that  the  retention  rates and breaks shall be as prescribed by
   52  another state or country if such wagers are combined with those  in  the
   53  other  state  or  country pursuant to section nine hundred seven of this
   54  chapter.
   55    a. Distribution of  retained  commissions  for  all  licensed  harness
   56  tracks shall be in accordance with article three of this chapter.
       S. 1409                            39                            A. 2109
 
    1    b.  For off-track betting facilities, (1) of the sums so retained, the
    2  applicable tax rate shall be one percent of all such wagers;
    3    (2) of the sum so retained, one percent of all wagers shall be paid to
    4  the New York state agricultural and horse breeding and development fund;
    5    (3) of the sum so retained, five percent shall be paid to the regional
    6  licensed  harness  track  to be distributed in the same manner as though
    7  such payments were on races conducted at such track;
    8    (4) of the sum so retained, an additional one percent  of  all  wagers
    9  shall  be paid to the regional licensed harness track for the purpose of
   10  increasing purses.
   11    c. In those regions in which there is more than one regional  licensed
   12  harness  track, the payments required under subparagraphs three and four
   13  of paragraph b of this subdivision shall be made to the  regional  track
   14  conducting a meet on the day out-of-state simulcasting occurs. If either
   15  no  track  is  conducting a meet, or more than one track is conducting a
   16  meet, the distribution shall be made in the proportion that each track's
   17  handle bore to the total regional licensed harness track  handle  during
   18  the  preceding calendar month or in accordance with a contractual agree-
   19  ment between the regional tracks and the off-track betting corporation.
   20    d. For wagers placed at an off-track betting facility in that  portion
   21  of  the  western  region  located  with  a  thoroughbred special betting
   22  district, but not included in a harness special  betting  district,  one
   23  and one-half per centum of such wagers shall be paid to the racing asso-
   24  ciation  located  in  such district provided such association is neither
   25  accepting  wagers  nor  simulcasting  out-of-state  harness  races.  Any
   26  payments  required by this subdivision shall reduce payments required to
   27  be made to the regional licensed harness track under the  provisions  of
   28  subparagraph three of paragraph b of this subdivision.
   29    e.  Any  thoroughbred  racing association or corporation or non-profit
   30  racing association or harness racing association or corporation or  off-
   31  track  betting corporation authorized pursuant to this section shall pay
   32  to the racing and wagering board as a regulatory fee, which fee is here-
   33  by levied, one-half of one percent of all wagering pools.
   34    4. The provisions of section five hundred thirty-two of  this  chapter
   35  shall apply as follows:
   36    a.  for all wagers placed at facilities licensed to receive such [out-
   37  ot-state] out-of-state simulcasts in accordance with section  one  thou-
   38  sand  eight of this article, distribution shall first be made in accord-
   39  ance with subdivision three-a, and then fifty percent of  the  remaining
   40  amount  in  accordance  with paragraph a of subdivision three of section
   41  five hundred thirty-two of this chapter  and  the  other  fifty  percent
   42  shall be retained by such operator for its general purpose.
   43    b.  for  wagers  placed at off-track betting branch offices on out-of-
   44  state tracks where such simulcasting is  not  conducted,  in  accordance
   45  with section five hundred thirty-two of this chapter.
   46    c.  upon  application  of  any  facility  licensed  in accordance with
   47  sections one thousand seven and one thousand nine of this  article,  the
   48  board  shall  authorize  the  imposition  of  a  sum equal to the amount
   49  authorized by section five hundred  thirty-two  of  this  chapter  which
   50  shall  apply  to  wagers  placed  at  such facility [except those events
   51  described as special events]. Such sums received by facilities  licensed
   52  in  accordance  with  section one thousand nine of this article shall be
   53  retained for the general purpose of the corporation. Such sums  received
   54  by  such  facilities  licensed  in  accordance with section one thousand
   55  seven of this article shall be distributed as follows:
       S. 1409                            40                            A. 2109
 
    1    (1) fifty percent shall be used  exclusively  for  purses  awarded  in
    2  races conducted by such licensed facility; and
    3    (2)  fifty percent shall be retained by such licensed facility for its
    4  general purposes.
    5    § 23. Subdivision 1 of section 1017 of the racing, pari-mutuel  wager-
    6  ing  and  breeding law, as added by chapter 445 of the laws of 1997, the
    7  opening paragraph as amended by chapter 113 of the laws of 2002, subpar-
    8  agraphs 4 and 6 of paragraph b as amended by chapter 94 of the  laws  of
    9  2001 and clause (F) of subparagraph 5 of paragraph b as amended by chap-
   10  ter 484 of the laws of 2000, is amended to read as follows:
   11    1.  The  provisions  of  this section shall govern the simulcasting of
   12  races conducted at thoroughbred tracks located in another state or coun-
   13  try on any day during which  a  non-profit  racing  association  is  not
   14  conducting  a  race  meeting in Saratoga county at Saratoga thoroughbred
   15  racetrack until June thirtieth,  two  thousand  seven.  Every  off-track
   16  betting  corporation  branch  office  and  every  simulcasting  facility
   17  licensed in accordance with section one thousand seven that have entered
   18  into a written agreement with such facility's representative  horsemen's
   19  organization  as  approved by the board, one thousand eight or one thou-
   20  sand nine of this article shall  be  authorized  to  accept  wagers  and
   21  display  the  live  full-card  simulcast  signal[, except as provided in
   22  clause (D) of subparagraph four and clause (E) of  subparagraph  six  of
   23  paragraph  b of this subdivision, from up to two] of thoroughbred tracks
   24  (which may include quarter horse or mixed  meetings  provided  that  all
   25  such wagering on such races shall be construed to be thoroughbred races)
   26  located  in  another  state  or  foreign country [except that during the
   27  period from January fifteenth, two thousand two through April fifteenth,
   28  two thousand two, from January fifteenth,  two  thousand  three  through
   29  April  fifteenth,  two  thousand  three, and from January fifteenth, two
   30  thousand four through April fifteenth, two thousand  four,  simulcasting
   31  shall  be  authorized  from  up  to three thoroughbred tracks located in
   32  another state or foreign country], subject to the following  provisions;
   33  provided,  however,  no  such  written  agreement shall be required of a
   34  non-profit racing association licensed in accordance  with  section  one
   35  thousand seven of this article:
   36    a. Each off-track betting branch office accepting wagers on an out-of-
   37  state  track  shall accept wagers on races run at all in-state thorough-
   38  bred tracks which are conducting racing programs and every  simulcasting
   39  facility licensed in accordance with sections one thousand eight and one
   40  thousand  nine  of this article which is accepting wagers and displaying
   41  the simulcast signal from an out-of-state track shall  similarly  accept
   42  wagers  and  display  the  signal  from all in-state thoroughbred tracks
   43  conducting racing programs.
   44    b. Any facility authorized to accept  wagers  on  out-of-state  tracks
   45  shall distribute all sums deposited in any pari-mutuel pool to the hold-
   46  ers  of winning tickets therein, provided such tickets are presented for
   47  payment prior to April first of the year following  the  year  of  their
   48  purchase less eighteen per centum of the total deposits in pools result-
   49  ing  from regular bets, less twenty-one per centum of the total deposits
   50  in pools resulting from multiple bets, less twenty-six per centum of the
   51  total deposits in pools resulting from exotic bets, and less twenty-sev-
   52  en per centum of the total deposits in pools resulting from super exotic
   53  bets, plus the breaks as defined in section two hundred twenty-eight  of
   54  this  chapter  except  that  the  retention rates and breaks shall be as
   55  prescribed by another state or country if such wagers are combined  with
       S. 1409                            41                            A. 2109
 
    1  those  in  the  other  state or country pursuant to section nine hundred
    2  seven of this chapter.
    3    (1)  Of  the  sums  so  retained, the applicable tax rates shall be as
    4  governed by clauses (A) and (B) of subparagraphs [(3), (4), (5) and (6)]
    5  three, four, five and six of paragraph b of this subdivision plus  fifty
    6  percent  of  the  breaks; provided, however, fifty percent of the breaks
    7  accruing from off-track betting corporations licensed in accordance with
    8  section one thousand eight of this article and from  simulcast  theaters
    9  licensed  in  accordance with section one thousand nine of this article,
   10  shall be paid to the agriculture and New York State horse  breeding  and
   11  development  fund and to the thoroughbred breeding and development fund,
   12  the total of such payments to be apportioned fifty per  centum  to  each
   13  such fund.
   14    (2)  (A)  Of  the  sums so retained, one-half of one per centum of all
   15  wagers shall be paid to the New York  State  thoroughbred  breeding  and
   16  development  fund, except that of the sums so retained on such wagers at
   17  licensed harness tracks, one-half of one per centum shall be paid to the
   18  agricultural and New York State horse breeding and development fund.
   19    (B) Any harness  racing  or  association  or  corporation,  non-profit
   20  racing  association  or  thoroughbred  racing association or corporation
   21  authorized pursuant to this section shall pay to the racing and wagering
   22  board as a regulatory fee, which fee is hereby levied, one-half  of  one
   23  percent of the total daily pari-mutuel pools.
   24    (3)   Distribution  of  wagers  placed  on  the  initial  out-of-state
   25  thoroughbred track at facilities licensed in  accordance  with  sections
   26  [1008] one thousand eight and [1009] one thousand nine of this [chapter]
   27  article.
   28    (A)  Of  the sums so retained on days when a non-profit racing associ-
   29  ation is not conducting a race meeting within the state and a  thorough-
   30  bred racing association or corporation is conducting a race meeting
   31                                                                    Super-
   32                                      Regular   Multiple   Exotic   exotic
   33                                       bets      bets       bets     bets
 
   34  State Tax                            1.50      1.50       1.50     1.50
 
   35  Thoroughbred Racing association      0.50      0.50       0.50     0.50
   36  or corporation
 
   37  Thoroughbred Racing association      1.50      2.00       1.50     2.00
   38  or corporation payments to purses
 
   39  Nonprofit racing association         0.50      0.50       0.50     0.50
 
   40  Nonprofit racing association         2.00      2.00       2.50     4.00
   41  payments to purses
 
   42    (B)   Of the sums so retained on days when a non-profit racing associ-
   43  ation is conducting a race meeting within the state
   44                                                                    Super-
   45                                      Regular   Multiple   Exotic   exotic
   46                                       bets      bets       bets     bets
 
   47  State Tax                            1.00      1.00       1.00     1.00
 
   48  Thoroughbred Racing association      0.50      0.50       0.50     0.00
       S. 1409                            42                            A. 2109
 
    1  or corporation
 
    2  Thoroughbred Racing association      0.50      0.50       0.50     0.50
    3  or corporation payments to purses
 
    4  Nonprofit racing association         2.00      1.50       1.50     2.00
 
    5  Nonprofit racing association         2.00      3.00       3.00     5.00
    6  payments to purses
 
    7    (C)  Payments to purses as required under (A) and (B) of this subpara-
    8  graph shall be paid to the thoroughbred  racing  association  or  corpo-
    9  ration  or  to  the non-profit racing association to be used exclusively
   10  for the purpose of increasing purses,  including  stakes,  premiums  and
   11  prizes.
   12    (4) Distribution of wagers placed on [the second and third] other than
   13  the  initial  out-of-state  thoroughbred track at facilities licensed in
   14  accordance with sections [1008] one thousand eight and [1009] one  thou-
   15  sand nine of this [chapter] article.
   16    (A)  Of  the sums so retained on days when a non-profit racing associ-
   17  ation is not conducting a race meeting within the state and a  thorough-
   18  bred racing association or corporation is conducting a race meeting
   19                                                                    Super-
   20                                      Regular   Multiple   Exotic   exotic
   21                                       bets      bets       bets     bets
 
   22  State Tax                            1.00      1.00       1.00     1.00
 
   23  Thoroughbred Racing association      2.00      2.00       2.00     2.50
   24  or corporation payments to purses
 
   25  Nonprofit racing association         1.00      1.00       1.00     1.00
 
   26  Nonprofit racing association         2.00      2.00       2.50     4.00
   27  payments to purses
 
   28    [The  state  tax  on  such  third  out-of-state track shall be .25 per
   29  centum of all wagers.]
   30    (B)  Of the sums so retained on days when a non-profit racing  associ-
   31  ation is conducting a race meeting within the state
   32                                                                    Super-
   33                                      Regular   Multiple   Exotic   exotic
   34                                       bets      bets       bets     bets
 
   35  State Tax                            0.50      0.50       0.50     0.50
 
   36  Thoroughbred racing association      0.50      0.25       0.50     0.50
   37  or corporation
 
   38  Thoroughbred racing association      0.50      0.25       0.50     0.50
   39  or corporation payments to purses
 
   40  Nonprofit racing association         2.25      2.25       2.00     2.50
 
   41  Nonprofit racing association         2.25      3.25       3.00     4.50
   42  payments to purses
       S. 1409                            43                            A. 2109
 
    1    [The  state  tax  on  such  third  out-of-state track shall be .25 per
    2  centum of all wagers.]
    3    (C)  Payments to purses as required under (A) and (B) of this subpara-
    4  graph shall be paid to the thoroughbred  racing  association  or  corpo-
    5  ration  or  to  the non-profit racing association to be used exclusively
    6  for the purpose of increasing purses,  including  stakes,  premiums  and
    7  prizes.
    8    (D)  On  days when no thoroughbred track is conducting a race meeting,
    9  facilities licensed in accordance  with  sections  [1008]  one  thousand
   10  eight and [1009] one thousand nine of this [chapter] article are author-
   11  ized  to  accept  the  simulcast  signal from more than two out-of-state
   12  thoroughbred tracks. The distribution of  wagers  on  such  out-of-state
   13  thoroughbred  track  or tracks shall be in accordance with clause (B) of
   14  this subparagraph.
   15    (5)  Distribution  of  wagers  placed  on  the  initial   out-of-state
   16  thoroughbred  track  at  facilities  licensed in accordance with section
   17  [1007] one thousand seven of this [chapter] article.
   18    (A) Of the sums so retained on days when a non-profit  racing  associ-
   19  ation  is not conducting a race meeting within the state and a thorough-
   20  bred racing association or corporation is conducting a race meeting
   21                                                                    Super-
   22                                      Regular   Multiple   Exotic   exotic
   23                                       bets      bets       bets     bets
 
   24  State Tax                            1.50      1.50       1.50     1.50
 
   25  Thoroughbred racing association      0.25      0.25       0.25     0.50
   26  or corporation
 
   27  Thoroughbred racing association      0.75      1.00       0.75     1.00
   28  or corporation payments to purses
 
   29  Nonprofit racing association         0.25      0.25       0.25     0.25
 
   30  Nonprofit racing association         1.00      1.00       2.25     2.00
   31  payments to purses
 
   32    (B)  Of the sums so retained on days when a non-profit racing  associ-
   33  ation is conducting a race meeting within the state
   34                                                                    Super-
   35                                      Regular   Multiple   Exotic   exotic
   36                                       bets      bets       bets     bets
 
   37  State Tax                            1.00      1.00       1.00     1.00
 
   38  Thoroughbred racing association      0.25      0.25       0.25     0.25
   39  or corporation
 
   40  Thoroughbred racing association      0.25      0.25       0.25     0.25
   41  or corporation payments to purses
 
   42  Nonprofit racing association         1.00      0.75       0.75     1.00
 
   43  Nonprofit racing association         1.00      1.50       1.50     2.50
   44  payments to purses
       S. 1409                            44                            A. 2109
 
    1    (C)  Payments to purses as required under (A) and (B) of this subpara-
    2  graph shall be paid to the thoroughbred  racing  association  or  corpo-
    3  ration  or  to  the non-profit racing association to be used exclusively
    4  for the purpose of increasing purses,  including  stakes,  premiums  and
    5  prizes.
    6    (D)  For  wagers  placed  at  a  non-profit  racing  association  or a
    7  thoroughbred racing association or corporation the state  tax  shall  be
    8  the  amounts specified in (A) and (B) of this subparagraph and retention
    9  thereafter shall be identical to sums retained for each type of on-track
   10  wager.
   11    (E) On days when a non-profit racing association is not  conducting  a
   12  race  meeting  and  when  a  licensed harness track is neither accepting
   13  wagers nor displaying the signal from an  in-state  thoroughbred  corpo-
   14  ration or association or an out-of-state thoroughbred track:
   15    (i)  Such licensed regional harness track shall receive in lieu of any
   16  other payments on wagers placed at off-track betting facilities  outside
   17  the special betting district on races conducted by an in-state thorough-
   18  bred  racing  corporation,  two  and eight-tenths percent on regular and
   19  multiple bets during a regional meeting and one and nine-tenths  percent
   20  of  such  bets if there is no regional meeting and four and eight-tenths
   21  percent on exotic bets on days on which there is a regional meeting  and
   22  three and four-tenths percent of such bets if there is no regional meet-
   23  ing.
   24    (ii)  Such  licensed regional harness track shall receive one and one-
   25  half per centum on total regional handle on races conducted  at  out-of-
   26  state or out-of-country thoroughbred tracks.
   27    (iii)  In  those  regions  in  which  there  is more than one licensed
   28  regional harness track, if no track is accepting  wagers  or  displaying
   29  the  live  simulcast  signal  from the out-of-state track, the total sum
   30  shall be divided among the tracks in proportion to the ratio the  wagers
   31  placed on races conducted by each track bears to the corporation's total
   32  in-region  harness handle. If one or more tracks are accepting wagers or
   33  displaying the live simulcast signal, the total amount shall be  divided
   34  among  those  tracks  not  accepting  wagers or displaying the simulcast
   35  signal for an out-of-state track or in-state thoroughbred corporation or
   36  association.
   37    (F) Of the sums retained by a licensed harness facility, fifty percent
   38  shall be used exclusively for purses awarded in races conducted by  such
   39  licensed  facility  and the remaining fifty percent shall be retained by
   40  such licensed facility for its general purposes, provided, however, that
   41  in a harness special betting district the portion of the  sums  retained
   42  by  a licensed harness facility to be used for purses or the methodology
   43  for calculating the amount to be used for purses may be specified  in  a
   44  written contract between a harness racing association or corporation and
   45  its representative horsemen's association.
   46    (6) Distribution of wagers placed on [the second and third] other than
   47  the  initial  out-of-state  thoroughbred track at facilities licensed in
   48  accordance with section [1007] one  thousand  seven  of  this  [chapter]
   49  article.
   50    (A)  Of  the sums so retained on days when a non-profit racing associ-
   51  ation is not conducting a race meeting within the state and a  thorough-
   52  bred racing association or corporation is conducting a race meeting
   53                                                                    Super-
   54                                      Regular   Multiple   Exotic   exotic
   55                                       bets      bets       bets     bets
       S. 1409                            45                            A. 2109
 
    1  State Tax                            1.00      1.00       1.00     1.00
 
    2  Thoroughbred Racing association      1.00      1.00       1.00     1.25
    3  or corporation payments to purses
 
    4  Nonprofit racing association         0.50      0.50       0.50     0.50
 
    5  Nonprofit racing association         1.00      1.00       1.25     2.00
    6  payments to purses
 
    7    [The  state  tax  on  such  third  out-of-state track shall be .25 per
    8  centum of all wagers.]
    9    (B)  Of the sums so retained on days when a non-profit racing  associ-
   10  ation is conducting a race meeting within the state
   11                                                                    Super-
   12                                      Regular   Multiple   Exotic   exotic
   13                                       bets      bets       bets     bets
 
   14  State Tax                            0.50      0.50       0.50     0.50
 
   15  Thoroughbred Racing association      0.25      0.25       0.25     0.25
   16  or corporation
 
   17  Thoroughbred Racing association      0.25      0.25       0.25     0.25
   18  or corporation payments to purses
 
   19  Nonprofit racing association         1.25      1.25       1.00     1.25
 
   20  Nonprofit racing association         1.25      2.00       1.50     2.25
   21  payments to purses
 
   22    [The  state  tax  on  such  third  out-of-state track shall be .25 per
   23  centum of all wagers.]
   24    (C) Payments to purses as required under (A) and (B) of this  subpara-
   25  graph  shall  be  paid  to the thoroughbred racing association or corpo-
   26  ration or to the non-profit racing association to  be  used  exclusively
   27  for  the  purpose  of  increasing purses, including stakes, premiums and
   28  prizes.
   29    (D) For  wagers  placed  at  a  non-profit  racing  association  or  a
   30  thoroughbred  racing  association  or corporation the state tax shall be
   31  the amounts specified in (A) and (B) of this subparagraph and  retention
   32  thereafter shall be identical to sums retained for each type of on-track
   33  wager.
   34    (E)  On  days when no thoroughbred track is conducting a race meeting,
   35  facilities licensed in accordance with section [1007] one thousand seven
   36  of this [chapter] article are authorized to accept the simulcast  signal
   37  from  [more than two] out-of-state thoroughbred tracks. The distribution
   38  of wagers on such out-of-state thoroughbred track or tracks shall be  in
   39  accordance with clause (B) of this subparagraph.
   40    (F)  On  days when a non-profit racing association is not conducting a
   41  race meeting and when a licensed  harness  track  is  neither  accepting
   42  wagers  nor  displaying  the signal from an in-state thoroughbred corpo-
   43  ration or association or an out-of-state thoroughbred track:
   44    (i) Such licensed regional harness track shall receive in lieu of  any
   45  other  payments on wagers placed at off-track betting facilities outside
   46  the special betting district on races conducted by an in-state thorough-
       S. 1409                            46                            A. 2109
 
    1  bred racing corporation, two and eight-tenths  percent  on  regular  and
    2  multiple  bets during a regional meeting and one and nine-tenths percent
    3  of such bets if there is no regional meeting and four  and  eight-tenths
    4  percent  on exotic bets on days on which there is a regional meeting and
    5  three and four-tenths percent of such bets if there is no regional meet-
    6  ing.
    7    (ii) Such licensed regional harness track shall receive one  and  one-
    8  half  per  centum on total regional handle on races conducted at out-of-
    9  state or out-of-country thoroughbred tracks.
   10    (iii) In those regions in  which  there  is  more  than  one  licensed
   11  regional  harness  track,  if no track is accepting wagers or displaying
   12  the live simulcast signal from the out-of-state  track,  the  total  sum
   13  shall  be divided among the tracks in proportion to the ratio the wagers
   14  placed on races conducted by each track bears to the corporation's total
   15  in-region harness handle. If one or more tracks are accepting wagers  or
   16  displaying  the live simulcast signal, the total amount shall be divided
   17  among those tracks not accepting  wagers  or  displaying  the  simulcast
   18  signal for an out-of-state track or in-state thoroughbred corporation or
   19  association.
   20    (G) Of the sums retained by a licensed harness facility, fifty percent
   21  shall  be used exclusively for purses awarded in races conducted by such
   22  licensed facility and the remaining fifty percent shall be  retained  by
   23  such licensed facility for its general purposes, provided, however, that
   24  in  a  harness special betting district the portion of the sums retained
   25  by a licensed harness facility to be used for purses or the  methodology
   26  for  calculating  the amount to be used for purses may be specified in a
   27  written contract between a harness racing association or corporation and
   28  its representative horsemen's association.
   29    c. (1) All wagers authorized by this section shall be combined  so  as
   30  to  produce  common  pari-mutuel  betting pools, which shall be combined
   31  with the sending track, for the calculation of  odds  and  the  determi-
   32  nation  of payouts from such pools, which payouts shall be made pursuant
   33  to the rules of the board. Every location authorized to accept wagers or
   34  display simulcasting pursuant to this section shall be  subject  to  all
   35  appropriate provisions of this chapter.
   36    (2)  Every  regional  off-track  betting corporation may simulcast all
   37  out-of-state races authorized by this section at any licensed  simulcast
   38  facility  except  for those facilities located in a thoroughbred special
   39  betting district. Facilities located in such  special  betting  district
   40  may display the simulcast signal with the permission of the thoroughbred
   41  track located in such district or if such track displays the signal from
   42  an out-of-state or out-of-country track.
   43    d.  The  provisions of section five hundred thirty-two of this chapter
   44  shall apply as follows:
   45    (1) for all wagers placed at facilities licensed to receive such  out-
   46  of-state  or  out-of-country  simulcasts  in accordance with section one
   47  thousand eight of this article, distribution  shall  first  be  made  in
   48  accordance  with  subdivision three-a of section five hundred thirty-two
   49  of this chapter, and then fifty  percent  of  the  remaining  amount  in
   50  accordance with paragraph a of subdivision three of section five hundred
   51  thirty-two of this chapter and the other fifty percent shall be retained
   52  by such operator for its general purpose.
   53    (2)  upon  application  of  any  facility  licensed in accordance with
   54  sections one thousand seven and one thousand nine of this  article,  the
   55  board  shall  authorize  the  imposition  of  a  sum equal to the amount
   56  authorized by section five hundred  thirty-two  of  this  chapter  which
       S. 1409                            47                            A. 2109
 
    1  shall  apply  to  wagers  placed  at  such facility [except those events
    2  described as special events]. Such sums received by facilities  licensed
    3  in  accordance  with  section one thousand nine of this article shall be
    4  retained  for the general purpose of the corporation. Such sums received
    5  by such facilities licensed in  accordance  with  section  one  thousand
    6  seven of this article shall be distributed as follows:
    7    (A)  fifty  percent  shall  be  used exclusively for purses awarded in
    8  races conducted by such licensed facility; and
    9    (B) fifty percent shall be retained by such licensed facility for  its
   10  general purposes.
   11    e.  Nothing in this section shall be construed to prohibit the accept-
   12  ance of wagers on races conducted at  out-of-state  tracks  without  the
   13  display  of  the  live  simulcast  signal  if authorized under any other
   14  provision of this chapter.
   15    § 24. Section 1017-a of the racing, pari-mutuel wagering and  breeding
   16  law, as amended by chapter 94 of the laws of 2001, is amended to read as
   17  follows:
   18    §  1017-a.  Out-of-state  or  out-of-country  races. [1. All licensed]
   19  Licensed simulcast facilities may accept wagers and display  the  signal
   20  of  out-of-state  or  out-of-country  thoroughbred tracks [following the
   21  conclusion of a regularly scheduled race program conducted by a non-pro-
   22  fit racing association or a thoroughbred racing  association  or  corpo-
   23  ration  until]  after  7:30 P.M.[, and after 11:59 P.M. but prior to the
   24  commencement of an in-state thoroughbred track's next calendar day  race
   25  program]  in  accordance  with  the  provisions  of  this section. [Upon
   26  approval from the board, if  a  non-profit  racing  association  is  not
   27  conducting  a  race  program,  such  simulcasting  shall commence at the
   28  approximate time such association's  regularly  scheduled  race  program
   29  concludes.  Any  such  out-of-state  or out-of-country signal and wagers
   30  shall not be accepted past 7:30 P.M. and before 11:59 P.M.] Such  simul-
   31  casting may include mixed meetings if such meetings are integral to such
   32  racing  programs  and all such wagering on such races shall be construed
   33  to be thoroughbred races. For  facilities  located  within  the  special
   34  betting  district, such approval shall also be required from a thorough-
   35  bred racing association  or  corporation  during  the  period  a  racing
   36  program  is  being  conducted  at such track. Such approval shall not be
   37  required on any day such thoroughbred racing association or  corporation
   38  is also accepting an out-of-state or out-of-country signal and wager, as
   39  authorized  by  this  section.  The  provisions  of section one thousand
   40  seventeen of this article shall be applicable to  the  conduct  of  such
   41  simulcasting  and  the provisions of clauses (A) and (B) of subparagraph
   42  four of paragraph b of subdivision one  of  section  [ten  hundred]  one
   43  thousand  seventeen  of  this  article  shall  apply to those facilities
   44  licensed in accordance with sections [ten hundred]  one  thousand  eight
   45  and  [ten  hundred] one thousand nine of this article and the provisions
   46  of clauses (A) and (B) of subparagraph (6) of paragraph b of subdivision
   47  one of section [ten hundred] one  thousand  seventeen  of  this  article
   48  shall apply to those facilities licensed in accordance with section [ten
   49  hundred] one thousand seven of this article, when such provisions are in
   50  full  force  and effect pursuant to such section. Provided, however, the
   51  provisions of section [ten hundred] one thousand fifteen of this article
   52  shall be applicable to the  conduct  of  such  simulcasting,  when  such
   53  provisions are in full force and effect pursuant to such section.
   54    [2.  For  the  period  commencing  September  fourth, two thousand one
   55  through June thirtieth, two thousand four on any day on which a  nonpro-
   56  fit  racing  association  conducting  racing at Belmont Park schedules a
       S. 1409                            48                            A. 2109
 
    1  racing program which commences later than one-thirty post meridian,  the
    2  simulcasting program authorized by subdivision one of this section shall
    3  commence at five-thirty post meridian and will be limited to the accept-
    4  ance  of  wages and displaying the signal of one out-of-state or out-of-
    5  country thoroughbred track.]
    6    § 25. The opening paragraph and subdivision 2 of section 1017-b of the
    7  racing, pari-mutuel wagering and breeding law, as added by chapter 94 of
    8  the laws of 2001, are amended to read as follows:
    9    Notwithstanding any other provision of this chapter,  for  the  period
   10  July  twenty-fifth,  two thousand one through September first, two thou-
   11  sand three, when a nonprofit racing association  is  conducting  a  race
   12  meeting  within  the  state  at  Saratoga  Race  Course, every off-track
   13  betting  corporation  branch  office  and  every  simulcasting  facility
   14  licensed in accordance with section one thousand seven (that has entered
   15  into  a written agreement with such facility's representative horsemen's
   16  organization as approved by the board), one thousand eight or one  thou-
   17  sand  nine  of  this  article  shall  be authorized to accept wagers and
   18  display the live simulcast signal from [no more than  two]  thoroughbred
   19  tracks  located  in  another  state,  provided  that such facility shall
   20  accept wagers on races run at all in-state thoroughbred tracks which are
   21  conducting  racing  programs  subject  to  the   following   provisions;
   22  provided,  however,  no  such  written  agreement shall be required of a
   23  nonprofit racing association licensed in  accordance  with  section  one
   24  thousand seven of this article.
   25    2.  a.  Of  the  sums  so  retained, one-half of one per centum of all
   26  wagers shall be paid to the New York  state  thoroughbred  breeding  and
   27  development  fund, except that of the sums so retained on such wagers at
   28  licensed harness tracks, one-half of one per centum shall be paid to the
   29  agriculture and New York state horse breeding and development fund.
   30    b. Any thoroughbred racing association or  corporation  or  non-profit
   31  racing  association or harness racing association or corporation or off-
   32  track betting corporation shall pay to the racing and wagering board  as
   33  a regulatory fee, which fee is hereby levied, one-half of one percent of
   34  all wagering pools.
   35    § 26. The state finance law is amended by adding a new section 99-i to
   36  read as follows:
   37    §  99-i.  Racing regulation account. 1. There is hereby established in
   38  the joint custody of the comptroller and the racing and wagering board a
   39  special revenue fund to be known as the "racing regulation account".
   40    2. The racing revenue account shall consist of all money  received  by
   41  the  board  as regulatory fees pursuant to the provisions of the racing,
   42  pari-mutuel wagering and breeding law.
   43    3. Moneys of this account shall be available to the board to  pay  for
   44  the costs of carrying out the purposes of the racing, pari-mutuel wager-
   45  ing and breeding law.
   46    4.  All  payments from the fund shall be made on the audit and warrant
   47  of the comptroller.
   48    § 27. This act shall take effect immediately.
 
   49                                   PART J
 
   50    Section 1. Paragraph (d) of subdivision  2  of  section  18-a  of  the
   51  public  service  law,  as  amended by chapter 15 of the laws of 1983, is
   52  amended to read as follows:
   53    (d) The amount of such bill for fiscal years  beginning  on  or  after
   54  April  first, nineteen hundred eighty-three so rendered shall be paid by
       S. 1409                            49                            A. 2109
 
    1  such public utility company to the department on or before April  first;
    2  provided,  however,  that  a  utility  company may elect to make partial
    3  payments for such costs and expenses on March  tenth  of  the  preceding
    4  fiscal  year  and on [June tenth,] September tenth[, and December tenth]
    5  of such fiscal year. Provided  further,  however,  that  [the]  for  the
    6  fiscal year beginning April two thousand three payment will be due March
    7  tenth,  [nineteen  hundred  eighty-three  for  the fiscal year beginning
    8  April first, nineteen hundred eighty-three shall not be required  to  be
    9  paid  until]  two  thousand  three at twenty-five percentum; June tenth,
   10  [nineteen hundred eighty-three. Each] two thousand three at  twenty-five
   11  percentum;  and  September tenth, two thousand three at fifty percentum.
   12  Thereafter, each such partial payment shall be a sum equal  to  [twenty-
   13  five]  fifty  percentum  of  the  estimate  of  costs and expenses to be
   14  assessed against such utility  company  under  the  provisions  of  this
   15  subdivision and shall not be less than ten dollars.
   16    §  2.  Subdivision  11  of  section 92-c of the public service law, as
   17  amended by chapter 730 of the laws  of  1994,  is  amended  to  read  as
   18  follows:
   19    11. A fee of twenty-five cents per month per access line assigned to a
   20  COCOT  is  hereby  imposed upon each and every COCOT. The local exchange
   21  company shall, act as a collection agent for such fees,  and  remit  the
   22  funds  collected  to  the department no later than the fifteenth of each
   23  and every month. The department shall  deposit  the  funds  as  soon  as
   24  received  in the [COCOT enforcement fund established pursuant to section
   25  ninety-two-w of the state finance law] state treasury to the  credit  of
   26  the general fund.
   27    §  3. Paragraph c of subdivision 1 of section 765 of the general busi-
   28  ness law, as amended by chapter 522 of the laws of 2000, is  amended  to
   29  read as follows:
   30    c. An action to recover a penalty under this article may be brought in
   31  the  supreme  court  in the judicial district in which the violation was
   32  alleged to have occurred which shall be commenced and prosecuted by  the
   33  attorney  general.  The  public  service  commission  shall, pursuant to
   34  section one hundred nineteen-b of the public service law, forward to the
   35  attorney general its determination of the  amount  of  the  penalty  for
   36  violations  of  rules  and regulations adopted to implement the require-
   37  ments of this article. Upon receipt of such determination, the  attorney
   38  general  may  commence  an  action  to  recover such penalty. All moneys
   39  recovered in any such action, together with the costs thereof,  and  all
   40  moneys  recovered  as  the  result of any such public service commission
   41  determination shall be paid  into  the  [underground  facilities  safety
   42  training account established pursuant to section ninety-seven-www of the
   43  state finance law] state treasury to the credit of the general fund.
   44    §  4. Section 92-w of the state finance law, as amended by chapter 730
   45  of the laws of 1994, is REPEALED.
   46    § 5. Section 97-www of the state finance law, as added by chapter  522
   47  of the laws of 2000, is REPEALED.
   48    §  6.  This act shall take effect on April 1, 2003; provided, however,
   49  that if this act shall become a law  after  such  date,  it  shall  take
   50  effect  immediately  and be deemed to have been in full force and effect
   51  on and after April 1, 2003; and provided, further that the amendments to
   52  paragraph c of subdivision 1 of section 765 of the general business  law
   53  made  by  section  three  of this act shall not affect the expiration of
   54  such paragraph and shall expire and be deemed repealed therewith.
         REPEAL NOTE.--Section 92-w of the state finance  law,  as  amended  by
       chapter 730 of the laws of 1994, establishes the customer owned currency
       S. 1409                            50                            A. 2109
 
       operated  telephone enforcement fund. Moneys from the fund are available
       for payment of costs and expenditures incurred  in  the  enforcement  of
       section 92-c of the public service law.
         Section  97-www,  as  added by chapter 522 of the laws of 2000, estab-
       lishes the underground facilities safety training account.  Moneys  from
       the account are available for training and education programs, regarding
       requirements  and  procedures  for the protection of underground facili-
       ties, conducted by certified one-call notification systems.
 
    1                                   PART K
 
    2    Section 1. Section 16 of the agriculture and markets law is amended by
    3  adding a new subdivision 25-b to read as follows:
    4    25-b. Require and receive the payment of a fee of  fifty  dollars  for
    5  the  issuance  of  certificates  of  compliance  with  the  food related
    6  provisions of this chapter  and  the  regulations  promulgated  pursuant
    7  thereto. Notwithstanding any other provision of law to the contrary, the
    8  commissioner  is  hereby  authorized  and  directed to deposit all money
    9  received pursuant to this subdivision in an account within the miscella-
   10  neous special revenue fund.
   11    § 2. Section 96-b of the agriculture and markets law,  as  amended  by
   12  chapter 573 of the laws of 2002, is amended to read as follows:
   13    § 96-b.  License required. No person, firm, partnership or corporation
   14  not granted inspection pursuant to the federal meat inspection act,  the
   15  federal  poultry  products  inspection  act,  article  five-B or article
   16  five-D of this chapter shall operate any place  or  establishment  where
   17  animals  or  fowls  are  slaughtered  or  butchered for food unless such
   18  person, firm, partnership or corporation be licensed by the  commission-
   19  er. In addition to any other requirements established by the commission-
   20  er,  such license shall prohibit the slaughter or butchering by slaught-
   21  erhouses of domesticated dog and domesticated cat to create food,  meat,
   22  meat  by-products or meat food products for human or animal consumption.
   23  An application for license shall be made upon a form prescribed  by  the
   24  commissioner  on or before the first day of May in every other year, for
   25  a two year license period commencing upon the  following  first  day  of
   26  June. With the application there shall be paid a license fee of [twenty]
   27  two hundred dollars.
   28    §  3. Subdivision 1 of section 129 of the agriculture and markets law,
   29  as added by chapter 816 of the laws of  1974,  is  amended  to  read  as
   30  follows:
   31    1.  No  person  shall  manufacture or hold in any facility within this
   32  state any commercial feed [in  this  state]  for  sale  or  distribution
   33  unless [the facility where such feed is manufactured has been] he or she
   34  is  registered  pursuant to the provisions of this section. [Such regis-
   35  tration once approved shall be permanent unless revoked pursuant to  the
   36  provisions  of this section.] The biennial registration fee shall be one
   37  hundred dollars.  Application, upon a form prescribed by the commission-
   38  er, shall be made on or before June first of every other  year  for  the
   39  registration period beginning July first following.
   40    § 4. Section 135 of the agriculture and markets law, as added by chap-
   41  ter 816 of the laws of 1974, is amended to read as follows:
   42    § 135. Rules  and  regulations. The commissioner is hereby authorized,
   43  after public hearing, to adopt and promulgate such rules and regulations
   44  to supplement and give full effect to the provisions of this article  as
   45  he  may  deem  necessary,  provided, that the commissioner may adopt and
   46  promulgate, insofar as appropriate, without public  hearing,  any  rules
       S. 1409                            51                            A. 2109
 
    1  and  regulations  promulgated under any federal act or acts or change or
    2  amend the regulations promulgated hereunder so as to conform, insofar as
    3  appropriate, to those promulgated under such federal act or acts.    The
    4  commissioner  may,  if  he  or she determines that the protection of the
    5  consumers of the state is not impaired by such action, provide by  regu-
    6  lation  for  exemption from registration of small feed distributors when
    7  he or she finds that such an exemption  would  avoid  unnecessary  regu-
    8  lation and assist in the administration of the article without impairing
    9  such article's purpose.
   10    §  5.  Section 163-a of the agriculture and markets law, as amended by
   11  chapter 233 of the laws of 1995, is amended to read as follows:
   12    § 163-a. Application.  Any nursery grower or  nursery  dealer,  except
   13  those  nursery  dealers  selling,  transporting, or handling for sale or
   14  otherwise disposing of nursery stock, exclusively consisting  of  indoor
   15  plants, at a retail level, desiring to sell, or selling, or handling for
   16  sale,  or  otherwise disposing of nursery stock in this state shall make
   17  application in writing to the commissioner upon a form prescribed by the
   18  commissioner. The application shall be made on or before the  first  day
   19  of  November[,  nineteen  hundred ninety-six for nursery growers and the
   20  first day of November, nineteen hundred ninety-five  for  nursery  deal-
   21  ers,]  and  every  other  year thereafter for the [license] registration
   22  period beginning in December and  shall  be  accompanied  by  a  fee  of
   23  [forty]  one hundred dollars [for a registration fee as a nursery grower
   24  or twenty dollars for a registration  fee  as  a  nursery  dealer].  The
   25  commissioner  may  exempt  from  the  payment  of  such fees agencies or
   26  authorities of the state; county, city, town, or village governments; or
   27  other entities providing benefit to the general  public,  including  but
   28  not limited to, botanical gardens.
   29    §  6.  Subdivision  1  of section 163-b of the agriculture and markets
   30  law, as amended by chapter 55 of the laws of 1992, is amended to read as
   31  follows:
   32    1. The commissioner after a nursery has been found  to  be  apparently
   33  free from injurious insects and plant diseases shall register each nurs-
   34  ery grower desiring to sell, or selling, or handling for sale, or other-
   35  wise  disposing  of  nursery  stock in this state in accordance with the
   36  intent disclosed in the application and shall issue a certificate,  upon
   37  a form to be prescribed by the commissioner, declaring that such nursery
   38  grower  is  duly registered and authorized to do business in this state.
   39  If  such  nursery  grower  is  maintaining  or  operating  premises   in
   40  connection  with  his  or her business in more than one place within the
   41  state then he or she shall obtain an additional  registration  for  each
   42  place  of  business [at an additional fee of ten dollars each], provided
   43  there shall be no additional fee for such additional registrations.
   44    § 7. Section 219 of the agriculture and markets  law,  as  amended  by
   45  chapter 122 of the laws of 1988, is amended to read as follows:
   46    § 219. Application and fee.  Application for license as a food salvag-
   47  er,  upon  a  form  prescribed  by the commissioner, shall be made on or
   48  before June first in every other year for the license  period  beginning
   49  July  first  following.  The applicant shall satisfy the commissioner of
   50  his character and that he has adequate physical facilities for salvaging
   51  food and food products. If so satisfied,  the  commissioner  shall  upon
   52  receipt  of the license fee issue to the applicant a license which shall
   53  be non-transferable. The biennial license fee shall be [one] two hundred
   54  dollars.  Where a person operates more  than  one  salvage  warehouse  a
   55  separate license is required for each location.
       S. 1409                            52                            A. 2109
 
    1    §  8.  Section  231  of the agriculture and markets law, as amended by
    2  chapter 122 of the laws of 1988, is amended to read as follows:
    3    § 231. Licenses,  issuance of. No person or corporation shall maintain
    4  or  operate  any  refrigerated  warehouse  and/or  locker  plant  unless
    5  licensed  by  the commissioner.   Application, upon a form prescribed by
    6  the commissioner, shall be made on or before September  first  of  every
    7  other year for the license period beginning October first following. The
    8  applicant shall satisfy the commissioner of his or its character, finan-
    9  cial  responsibility, and competency to operate a refrigerated warehouse
   10  or locker plant. The commissioner, if so satisfied, shall, upon  receipt
   11  of the license fee or fees, issue to the applicant a license or licenses
   12  to  operate  the refrigerated warehouse or warehouses or locker plant or
   13  locker plants described in the application until the first day of  Octo-
   14  ber of the year following the year in which such license was issued. The
   15  biennial  license  fee  shall  be  [fifty]  two hundred dollars for each
   16  refrigerated warehouse[, except that the  biennial  license  fee  for  a
   17  refrigerated  warehouse storing fresh fruit and vegetables, or either of
   18  them, and no other articles of food, shall be ten dollars].  If a locker
   19  plant is operated as part of a refrigerated warehouse and upon the  same
   20  premises, no additional license fee shall be required.
   21    §  9. The agriculture and markets law is amended by adding a new arti-
   22  cle 20-B to read as follows:
   23                                ARTICLE 20-B
   24                                FOOD SECURITY
   25  Section 251-o. Declaration of policy and purpose.
   26          251-p. Definitions.
   27          251-q. Registration.
   28          251-r. Exemptions.
   29          251-s. Food establishment preventative measures.
   30          251-t. Rules and regulations.
 
   31    § 251-o. Declaration of policy and purpose. The  general  purposes  of
   32  this  article  are to assure food security by requiring the registration
   33  of food establishments located within the state and requiring the opera-
   34  tors of such establishments to take preventative  measures  to  minimize
   35  the  risk  of  food  under their control being subjected to tampering or
   36  criminal or terrorist actions.
   37    § 251-p. Definitions. As used in this  article,  the  following  defi-
   38  nitions shall apply:
   39    1.  "Food  establishment" shall mean any facility within this state in
   40  which food  is  possessed,  stored,  manufactured,  compounded,  brewed,
   41  distilled,  produced,  processed,  packed,  labeled or relabeled, trans-
   42  ported, sold, offered or exposed for sale, or served.
   43    2. "Food warehouse" shall mean any food establishment in which food is
   44  held for commercial distribution.
   45    § 251-q. Registration. No person shall  maintain  or  operate  a  food
   46  establishment  unless  such  establishment is registered pursuant to the
   47  provisions of  this  article,  provided,  however,  that  establishments
   48  registered,  permitted  or  licensed by the department pursuant to other
   49  provisions of this chapter, under permit and  inspection  by  the  state
   50  department  of  health  or  by  a  local health agency which maintains a
   51  program certified and approved by the state commissioner of  health,  or
   52  subject  to  inspection  by  the United States department of agriculture
   53  pursuant to the federal meat, poultry or egg inspection programs,  shall
   54  be  exempt  from registration under this article. Application for regis-
   55  tration of a food establishment shall be made, upon a form prescribed by
       S. 1409                            53                            A. 2109
 
    1  the commissioner, on or before December first of every  other  year  for
    2  the   registration   period  beginning  January  first  following.  Upon
    3  submission of a completed  application,  together  with  the  applicable
    4  registration fee, the commissioner shall register the food establishment
    5  described in the application for two years from the applicable registra-
    6  tion  commencement  period  set forth hereinabove.  The registration fee
    7  shall be one hundred dollars  for  all  food  establishments  registered
    8  under this article except food warehouses, which establishments shall be
    9  subject  to  a registration fee of two hundred dollars. The commissioner
   10  shall prorate the registration fee for any person registering after  the
   11  commencement of the registration period.
   12    Notwithstanding  any  other  provision  of  law  to  the contrary, the
   13  commissioner is hereby authorized and  directed  to  deposit  all  money
   14  received pursuant to this article in an account within the miscellaneous
   15  special revenue fund.
   16    §  251-r.  Exemptions.  The  commissioner may, if he or she determines
   17  that the protection of the consumers of the state as a whole will not be
   18  impaired by such action, provide by regulation for exemption from regis-
   19  tration of small food establishments when he or she finds that  such  an
   20  exemption  would avoid unnecessary regulation and assist in the adminis-
   21  tration of the article without impairing its purposes.
   22    § 251-s. Food establishment preventative measures.  Each operator of a
   23  food establishment shall take such preventative measures as the  commis-
   24  sioner  may require, pursuant to duly promulgated rules and regulations,
   25  to minimize the  risk  of  food  under  such  operator's  control  being
   26  subjected to tampering or criminal or terrorist actions.
   27    §  251-t. Rules and regulations. The commissioner is hereby authorized
   28  and directed, after public hearing, to promulgate and  issue  rules  and
   29  regulations,  including  but  not  limited  to  regulations establishing
   30  preventative measures to minimize the risk of food  being  subjected  to
   31  tampering or criminal or terrorist actions.
   32    § 10. This act shall take effect immediately, except that section nine
   33  of  this act shall take effect on the one hundred eightieth day after it
   34  shall have become a law; provided, however, that effective  immediately,
   35  the  addition,  amendment and/or repeal of any rule or regulation neces-
   36  sary for the implementation of this act on its effective date is author-
   37  ized and directed to be made and completed on or before  such  effective
   38  date.
 
   39                                   PART L
 
   40    Section  1.  Paragraph  (b)  of  subdivision  2 of section 2975 of the
   41  public authorities law, as amended by chapter 55 of the laws of 1992, is
   42  amended to read as follows:
   43    (b) On or before [August] November first,  [nineteen  hundred  eighty-
   44  nine  and  on  or before August first each year thereafter] two thousand
   45  three and on or before November  first  of  each  year  thereafter,  the
   46  director  of  the  budget  shall  [prorate  the lesser of: (i) the total
   47  amount of the annual expenses determined pursuant to  paragraph  (a)  of
   48  this  subdivision; or (ii) twenty million dollars annually. Public bene-
   49  fit corporations shall be assessed such prorated amounts based upon  the
   50  proportion of the outstanding debt, consisting of bonds, notes and other
   51  obligations  of  each  public  benefit corporation, to the total of such
   52  debt for such public benefit corporations, as determined by the director
   53  of the budget] determine the amount owed  under  this  section  by  each
   54  public  benefit corporation.   The director of the budget may reduce, in
       S. 1409                            54                            A. 2109
 
    1  whole or part, the amount of such  assessment  if  the  payment  thereof
    2  would necessitate a state appropriation for the purpose, or would other-
    3  wise  impose  an extraordinary hardship upon the affected public benefit
    4  corporation.    The  aggregate amount assessed under this section in any
    5  given state fiscal year may not exceed forty million dollars.
    6    § 2. Subdivision 3 of section 2975 of the public authorities  law,  as
    7  added by chapter 62 of the laws of 1989, is amended to read as follows:
    8    3.  The  state  treasurer  shall  impose and collect such assessments,
    9  which shall be paid no later than [December] March thirty-first  follow-
   10  ing  the  imposition of the assessments, and pay the same into the state
   11  treasury to the credit of the general fund.
   12    § 3. This act shall take effect April 1, 2003.
 
   13                                   PART M
 
   14    Section 1. Subdivision 3 of section 2251 of the  vehicle  and  traffic
   15  law,  as added by chapter 484 of the laws of 1985, is amended to read as
   16  follows:
   17    3. Fees. The triennial fee for registration  of  a  vessel  shall  be:
   18  [nine] eighteen dollars, if less than sixteen feet in length; [eighteen]
   19  thirty-six  dollars,  if  sixteen  feet or over but less than twenty-six
   20  feet in length; [thirty] sixty dollars, if twenty-six feet or over.
   21    § 2. This act shall take effect on the ninetieth day  after  it  shall
   22  have become a law.
 
   23                                   PART N
 
   24    Section 1.  (a) Subject to the provisions of chapter 59 of the laws of
   25  2000,  but  notwithstanding the provisions of section 18 of the New York
   26  state urban development corporation act, the  urban  development  corpo-
   27  ration  is  hereby  authorized  to  issue  bonds or notes in one or more
   28  series in an aggregate  principal  amount  not  to  exceed  $50,000,000,
   29  excluding  bonds  issued to fund one or more debt service reserve funds,
   30  to pay costs of issuance of such bonds, and bonds  or  notes  issued  to
   31  refund or otherwise repay such bonds or notes previously issued, for the
   32  purpose  of  making  grants, loans or combinations thereof in accordance
   33  with a programmatic and financial plan to be approved by the director of
   34  the budget for economic development projects which will  facilitate  the
   35  creation or retention of jobs or increase business activity within down-
   36  town Buffalo, the Buffalo inner harbor area or surrounding environs; and
   37  to  reimburse  the  state  capital  projects fund for disbursements made
   38  therefor. Eligible project costs may include, but not be limited to  the
   39  costs  of  design,  financing, site acquisition and preparation, working
   40  capital,  demolition,  construction,  rehabilitation,   acquisition   of
   41  machinery  and  equipment,  parking facilities, and infrastructure. Such
   42  bonds and notes of the corporation shall not be a debt of the state  and
   43  the  state shall not be liable thereon, nor shall they be payable out of
   44  any funds other than those appropriated by the state to the  corporation
   45  for  debt  service and related expenses pursuant to any service contract
   46  executed pursuant to subdivision (b) of this section, and such bonds and
   47  notes shall contain on the face thereof  a  statement  to  such  effect.
   48  Except  for  purposes  of  complying with the internal revenue code, any
   49  interest income earned on bond proceeds shall only be used to  pay  debt
   50  service on such bonds.
   51    (b) Notwithstanding any other law, rule or regulation to the contrary,
   52  in order to assist the corporation in undertaking the administration and
       S. 1409                            55                            A. 2109
 
    1  financing  of  projects  authorized  pursuant to subdivision (a) of this
    2  section, the director of the budget is hereby authorized to  enter  into
    3  one  or more service contracts with the corporation, none of which shall
    4  exceed more than 15 years in duration, upon such terms and conditions as
    5  the  director of the budget and the corporation agree, so as to annually
    6  provide to the corporation, in the aggregate, a sum not  to  exceed  the
    7  annual debt service payments and related expenses required for the bonds
    8  and  notes issued pursuant to this section. Any service contract entered
    9  into pursuant to this subdivision shall provide that the  obligation  of
   10  the state to pay the amount therein provided shall not constitute a debt
   11  of  the  state  within  the  meaning  of any constitutional or statutory
   12  provision and shall be deemed executory only to  the  extent  of  monies
   13  available  and  that  no liability shall be incurred by the state beyond
   14  the monies available for such purposes, subject to annual  appropriation
   15  by the legislature. Any such contract or any payments made or to be made
   16  thereunder may be assigned or pledged by the corporation as security for
   17  its bonds and notes, as authorized by this section.
   18    § 2. This act shall take effect April 1, 2003; provided, however, that
   19  if  this  act  shall  become  a law after such date it shall take effect
   20  immediately and shall be deemed to have been in full force and effect on
   21  and after April 1, 2003.
 
   22                                   PART O
 
   23    Section 1. Section 2 of chapter 393 of the laws of 1994, amending  the
   24  New  York state urban development corporation act, as amended by section
   25  1 of part K of chapter 84 of the laws of 2002, is  amended  to  read  as
   26  follows:
   27    §  2.  This act shall take effect immediately [provided, however, that
   28  section one of this act shall expire on July 1, 2003, at which time  the
   29  provisions  of  subdivision  26 of section 5 of the New York state urban
   30  development corporation act shall be deemed repealed; provided, however,
   31  that neither the expiration  nor  the  repeal  of  such  subdivision  as
   32  provided  for  herein  shall be deemed to affect or impair in any manner
   33  any loan made pursuant to the authority of  such  subdivision  prior  to
   34  such expiration and repeal].
   35    §  2.  This act shall take effect April 1, 2003; provided, however, if
   36  this act shall become a law after such date it shall take  effect  imme-
   37  diately and shall be deemed to have been in full force and effect on and
   38  after April 1, 2003.
 
   39                                   PART P
 
   40    Section  1.  Notwithstanding  any other law, rule or regulation to the
   41  contrary, expenses of the department of health public service  education
   42  program  incurred  pursuant  to appropriations from the cable television
   43  account of the state miscellaneous special revenue funds shall be deemed
   44  expenses of the department of public service.
   45    § 2. Expenditures of moneys appropriated in a chapter of the  laws  of
   46  2003  to  the  department  of  agriculture  and markets from the special
   47  revenue  funds-other/state  operations,  miscellaneous  special  revenue
   48  fund-339,  public service account for the agricultural business services
   49  program shall be subject to the provisions of this  section.    Notwith-
   50  standing  any  law  to the contrary, expenditures from the miscellaneous
   51  special revenue fund appropriation, and indirect costs under  the  comp-
   52  troller's  statewide  cost  allocation plan, shall be deemed expenses of
       S. 1409                            56                            A. 2109
 
    1  the department of public service within the meaning of section  18-a  of
    2  the  public  service law and assessed accordingly.  Expenditures subject
    3  to assessment shall include those for direct and indirect  participation
    4  in certification proceedings pursuant to article 7 of the public service
    5  law.
    6    §  3.  Expenditures of moneys appropriated in a chapter of the laws of
    7  2003 to the department of economic development from the special  revenue
    8  funds-other/state  operations,  miscellaneous  special revenue fund-339,
    9  public service account for the administration program shall  be  subject
   10  to  the  provisions  of  this  section.  Notwithstanding  any law to the
   11  contrary, expenditures  from  the  miscellaneous  special  revenue  fund
   12  appropriations and indirect costs under the comptroller's statewide cost
   13  allocation  plan,  shall  be deemed expenses of the department of public
   14  service within the meaning of section 18-a of the public service law and
   15  assessed accordingly. Expenditures subject to assessment  shall  include
   16  those for direct and indirect participation in certification proceedings
   17  pursuant to article 7 of the public service law.
   18    §  4.  Expenditures of moneys appropriated in a chapter of the laws of
   19  2003 to the office of parks, recreation and historic  preservation  from
   20  the  special  revenue  funds  -  other/state  operations,  miscellaneous
   21  special revenue fund - 339, public service account  under  the  historic
   22  preservation program shall be subject to the provisions of this section.
   23  Notwithstanding any law to the contrary, expenditures from the miscella-
   24  neous  special revenue fund appropriations, and indirect costs under the
   25  comptroller's statewide cost allocation plan, shall be  deemed  expenses
   26  of  the  department of public service within the meaning of section 18-a
   27  of the public  service  law  and  assessed  accordingly.    Expenditures
   28  subject  to  assessment  shall  include  those  for  direct and indirect
   29  participation in certification proceedings pursuant to article 7 of  the
   30  public service law.
   31    §  5.  Expenditures of moneys appropriated in a chapter of the laws of
   32  2003 to the consumer protection board from the special revenue  funds  -
   33  other/state operations, miscellaneous special revenue fund - 339, public
   34  service  account  for  the  consumer protection program for services and
   35  expenses related to consumer  protection  activities,  including  travel
   36  outside  the  state, shall be subject to the provisions of this section.
   37  Notwithstanding any provision of law to the contrary, such  expenditures
   38  shall  be  deemed  an expense of the department of public service within
   39  the meaning of section 18-a of the public service law.
   40    § 6. Expenditures of moneys appropriated in a chapter of the  laws  of
   41  2003  to  the  department of environmental conservation from the special
   42  revenue  funds  -  other/state  operations,  environmental  conservation
   43  special  revenue  fund  -  301, utility environmental regulation account
   44  shall be subject to the provisions of this section. Notwithstanding  any
   45  law to the contrary, expenditures from the miscellaneous special revenue
   46  fund  and  indirect  costs  under the comptroller's statewide cost allo-
   47  cation plan, shall be  deemed  expenses  of  the  department  of  public
   48  service within the meaning of section 18-a of the public service law and
   49  assessed  accordingly.  Expenditures subject to assessment shall include
   50  those for direct and indirect participation in certification proceedings
   51  pursuant to article 7 of the public service law; oil and gas,  coal  and
   52  nuclear regulatory and planning activities; and small hydropower, cogen-
   53  eration, alternate energy and electric generation facility sitings.
   54    §  7.  Expenditure  of moneys appropriated in a chapter of the laws of
   55  2003 to the office of public security from the  special  revenue  funds-
   56  other/state  operations,  miscellaneous special revenue fund-339, public
       S. 1409                            57                            A. 2109
 
    1  service account for the cyber security and critical infrastructure coor-
    2  dination office shall be subject to  the  provisions  of  this  section.
    3  Notwithstanding any law to the contrary, expenditures from the miscella-
    4  neous  special  revenue fund appropriation, and indirect costs under the
    5  comptroller's statewide cost allocation plan, shall be  deemed  expenses
    6  of  the  department of public service within the meaning of section 18-a
    7  of the public service law and assessed accordingly.
    8    § 8. This act shall take effect April 1, 2003; provided, however, that
    9  if this act shall become a law after such date,  it  shall  take  effect
   10  immediately and shall be deemed to have been in full force and effect on
   11  and after April 1, 2003.
 
   12                                   PART Q
 
   13    Section  1.  Section 72-1003 of the environmental conservation law, as
   14  added by chapter 166 of the laws of 1991, is amended to read as follows:
   15  § 72-1003. Fees.
   16    All persons required to obtain a permit  or  approval  or  subject  to
   17  regulation  under  this  title shall submit annually to the department a
   18  fee in the amount to be determined for affected land as follows:
   19    1. four hundred dollars for minor projects; or
   20    2. seven hundred dollars for affected land of an acreage equal  to  or
   21  less than five acres; or
   22    3.  nine  hundred dollars for affected land of an acreage greater than
   23  five acres and equal to or less than ten acres; or
   24    4. [twelve] fifteen hundred dollars for affected land  of  an  acreage
   25  greater than ten acres and equal to or less than twenty acres; or
   26    5.  [one thousand five hundred] two thousand dollars for affected land
   27  of an acreage greater than twenty acres and equal to or less than thirty
   28  acres; or
   29    6. [two] four thousand dollars for affected land of an acreage greater
   30  than thirty acres.
   31    § 2. This act shall take effect immediately and  shall  be  deemed  to
   32  have been in full force and effect on and after April 1, 2003.
 
   33                                   PART R
   34    Section  1.  Notwithstanding  any  provision  of section 1854-d of the
   35  public authorities law, the New York state energy research and  develop-
   36  ment  authority  is  hereby authorized and directed, upon the request of
   37  the director of the division of the budget, to  transfer  to  the  state
   38  comptroller  for  deposit  in  the  state  general  fund  the  amount of
   39  $1,800,000 from the interest earnings on assessments paid to the author-
   40  ity pursuant to paragraph c of subdivision 2 of such section.
   41    § 2. Notwithstanding any law to the contrary, the comptroller is here-
   42  by authorized and directed to receive for deposit to the credit  of  the
   43  environmental  conservation  special revenue fund-301 low level radioac-
   44  tive waste account from the New York state energy research and  develop-
   45  ment  authority $330,000 received pursuant to subparagraph (ii) of para-
   46  graph a of subdivision 2 of section 1854-d of the public authorities law
   47  for the purposes specified in a chapter of the laws of 2003.
   48    § 3. Notwithstanding any law to the contrary, the comptroller is here-
   49  by authorized and directed to receive for deposit to the credit  of  the
   50  general  fund  the  amount  of  $913,000  from the New York state energy
   51  research and development authority.
   52    § 4. This act shall take effect April 1, 2003;  provided  however,  if
   53  this  act  shall become a law after such date it shall take effect imme-
       S. 1409                            58                            A. 2109
 
    1  diately and shall be deemed to have been in full force and effect on and
    2  after April 1, 2003.
 
    3                                   PART S
 
    4    Section  1.  Expenditures  of  moneys appropriated in a chapter of the
    5  laws of 2003 to the energy research and development authority  from  the
    6  special  revenue  funds  - other/state operations, miscellaneous special
    7  revenue  fund-339,  energy  research  and  planning  account  under  the
    8  research, development and demonstration and policy and planning programs
    9  for  services  and  expenses  for the research, development   and demon-
   10  stration and policy and  planning  programs  shall  be  subject  to  the
   11  provisions  of  this section. Notwithstanding the provisions of subdivi-
   12  sion 4-a of section 18-a of the public service law all moneys  committed
   13  or  expended  shall be reimbursed by assessment against gas corporations
   14  and electric corporations as defined in section 2 of the public  service
   15  law,  and  the  total amount which may be charged to any gas corporation
   16  and any electric corporation shall not exceed one cent per one  thousand
   17  cubic  feet  of  gas sold and .010 cent per kilowatt-hour of electricity
   18  sold by such corporations in  their  intrastate  utility  operations  in
   19  calendar  year  2001.  Such  amounts  shall be excluded from the general
   20  assessment provisions of subdivision 2 of section  18-a  of  the  public
   21  service  law,  but  shall  be billed and paid in the manner set forth in
   22  such subdivision and upon receipt shall be paid to the state comptroller
   23  for deposit in the  state  treasury  for  credit  to  the  miscellaneous
   24  special  revenue  fund.  The  director  of  the budget shall not issue a
   25  certificate of approval with respect to the commitment  and  expenditure
   26  of  moneys  hereby  appropriated  until the chair of the authority shall
   27  have submitted, and the director of the budget shall  have  approved,  a
   28  comprehensive  financial  plan  encompassing all moneys available to and
   29  all anticipated commitments and expenditures by the authority  from  any
   30  source  for  the  operations  of  the  authority. Copies of the approved
   31  comprehensive financial plan  shall  be  immediately  submitted  by  the
   32  director  of the budget to the chairs and secretaries of the legislative
   33  fiscal committees.
   34    § 2. This act shall take effect April 1, 2003; provided,  however,  if
   35  this  act  shall become a law after such date it shall take effect imme-
   36  diately and shall be deemed to have been in full force and effect on and
   37  after April 1, 2003.
 
   38                                   PART T
 
   39    Section 1. Section 23-1903 of the environmental conservation  law,  as
   40  amended  by chapter 891 of the laws of 1984, subdivision 1 as amended by
   41  chapter 410 of the laws of 1987, is amended to read as follows:
   42  § 23-1903. Imposition of oil, gas and  solution  mining  regulation  and
   43               reclamation fees.
   44    1.  When a permit is granted to a person by the department pursuant to
   45  section 23-0305 of this article  to  drill  a  well  or  when  a  person
   46  converts  a well to one subject to the oil, gas and solution mining law,
   47  such person shall pay to the department:
   48    a. A one hundred dollar fee to be credited to the oil and gas  account
   49  established  under  chapter  fifty-eight of the laws of nineteen hundred
   50  eighty-two; and
   51    b. A fee in accordance with  the  depth  drilled  or  expected  to  be
   52  drilled as set forth below:
       S. 1409                            59                            A. 2109
 
    1     0- 500ft. - [$ 125] $ 190
    2    501- 1000ft. - [$ 250] $ 380
    3    1001- 1500ft. - [$ 375] $ 570
    4    1501- 2000ft. - [$ 500] $ 760
    5    2001- 2500ft. - [$ 625] $ 950
    6    2501- 3000ft. - [$ 750] $1,140
    7    3001- 3500ft. - [$ 875] $1,330
    8    3501- 4000ft. - [$1000] $1,520
    9    4001- 4500ft. - [$1125] $1,710
   10    4501- 5000ft. - [$1250] $1,900
   11    5001- 5500ft. - [$1375] $2,090
   12    5501- 6000ft. - [$1500] $2,280
   13    6001- 6500ft. - [$1625] $2,470
   14    6501- 7000ft. - [$1750] $2,660
   15    7001- 7500ft. - [$1875] $2,850
   16    7501- 8000ft. - [$2000] $3,040
   17    8001- 8500ft. - [$2125] $3,230
   18    8501- 9000ft. - [$2250] $3,420
   19    9001- 9500ft. - [$2375] $3,610
   20    9501-10,000ft.- [$2500] $3,800
   21    over 10,000ft.- [$2625] $3,800 plus $190 for each incremental 500 feet
   22  of depth over 10,000 feet.
 
   23    A  person who has paid the fees described shall not be required to pay
   24  any additional fee for a well conversion.   The fee for  well  deepening
   25  permits  pertaining to wells for which a well drilling permit was issued
   26  after August twenty-fifth, nineteen hundred eighty-one, shall be  calcu-
   27  lated on the basis of the additional depth drilled.
   28    In the event the actual depth drilled exceeds the depth expected to be
   29  drilled, an additional amount shall be paid such that the total fee paid
   30  shall be in accordance with the schedule set forth in this paragraph.
   31    2.  Upon  requesting  from  the department any determination under the
   32  Natural Gas Policy Act, such person shall pay a  fifty  dollar  fee  per
   33  well for each such determination.
   34    §  2.  This  act shall take effect on the ninetieth day after it shall
   35  have become a law.
 
   36                                   PART U
 
   37    Section 1.  Paragraphs (b), (c) and (d) of subdivision  6  of  section
   38  92-s  of  the  state  finance  law, paragraphs (b) and (c) as amended by
   39  chapter 432 of the laws of 1997, and paragraph (d) as amended by section
   40  13 of part E of chapter 61 of the laws of 2000, are amended to  read  as
   41  follows:
   42    (b)  Moneys  from the solid waste account shall be available, pursuant
   43  to appropriation and upon certificate of approval of availability by the
   44  director of the budget, for any non-hazardous municipal landfill closure
   45  project; municipal waste reduction or recycling project, as  defined  in
   46  article  fifty-four  of  the  environmental  conservation  law;  for the
   47  purposes of section  two  hundred  sixty-one  and  section  two  hundred
   48  sixty-four of the economic development law; any project for the develop-
   49  ment,  updating or revision of local solid waste management plans pursu-
   50  ant to sections 27-0107 and 27-0109 of  the  environmental  conservation
   51  law;  [and] for the development of the pesticide sales and use data base
   52  in conjunction with Cornell University pursuant to title twelve of arti-
   53  cle thirty-three of the environmental  conservation  law;  and  for  any
       S. 1409                            60                            A. 2109
 
    1  projects  to  assess  and  recover  any  natural resource damages to the
    2  Hudson River.
    3    (c)  Moneys  from  the  parks,  recreation  and  historic preservation
    4  account shall be available, pursuant to appropriation, for any municipal
    5  park  project,  historic  preservation  project,  urban  cultural   park
    6  project,   waterfront  revitalization  program,  coastal  rehabilitation
    7  project, state parks and lands infrastructure and  stewardship  project,
    8  Hudson  River  Park project consistent with chapter five hundred ninety-
    9  two of the laws of nineteen  hundred  ninety-eight,  and  historic  barn
   10  projects.
   11    (d) Moneys from the open space account shall be available, pursuant to
   12  appropriation, (i) for any open space land conservation project[,]; (ii)
   13  for  bio-diversity  stewardship  and  research  pursuant to chapter five
   14  hundred fifty-four of the  laws  of  nineteen  hundred  ninety-three[,];
   15  (iii)  for  the  purposes of agricultural and farmland protection activ-
   16  ities as authorized by article twenty-five-AAA of  the  agriculture  and
   17  markets law[,]; (iv) for non-point source abatement and control projects
   18  pursuant  to  section  17-1409 of the environmental conservation law and
   19  section eleven-b of the soil and water  conservation  districts  law[,];
   20  (v)  for  soil and water conservation district activities authorized for
   21  reimbursement pursuant to section eleven-a of the soil and water conser-
   22  vation districts law; (vi) for projects to implement  the  Hudson  River
   23  estuary  management  plan  prepared  pursuant  to section 11-0306 of the
   24  environmental conservation law;  (vii)  for  Long  Island  Central  Pine
   25  Barrens  area  planning or Long Island south shore estuary reserve plan-
   26  ning pursuant to title thirteen of article fifty-four  of  the  environ-
   27  mental  conservation  law[, and]; (viii) for operation and management of
   28  the Albany Pine Bush preserve commission pursuant to subdivision two  of
   29  section 54-0303 of the environmental conservation law; and for the oper-
   30  ation of the Hudson River Valley Greenway Commission pursuant to article
   31  forty-four  of the environmental conservation law, as amended by a chap-
   32  ter of the laws of two thousand three.
   33    § 2. Subdivision 9 of section 92-s of the state finance law, as  added
   34  by  section 3 of part H of chapter 82 of the laws of 2002, is amended to
   35  read as follows:
   36    9. Notwithstanding any other law to the  contrary  and  in  accordance
   37  with  section four of this chapter, the comptroller is hereby authorized
   38  at the direction of the director of the division of the budget to trans-
   39  fer moneys from the general fund to the  environmental  protection  fund
   40  for  the  purpose  of  maintaining  the  solvency  of  the environmental
   41  protection fund. If, in any fiscal year,  moneys  in  the  environmental
   42  protection  fund are deemed insufficient by the director of the division
   43  of the budget to meet actual and anticipated disbursements from  enacted
   44  appropriations  or  reappropriations  made pursuant to this section, the
   45  comptroller shall at the direction of the director of  the  division  of
   46  the  budget,  transfer  from  the  general  fund  to  the  environmental
   47  protection fund moneys  sufficient  to  meet  such  disbursements.  Such
   48  transfers  shall be made only upon certification of need by the director
   49  of the division of the budget, with copies of such  certification  filed
   50  with  the  [chairmen]  chairperson  of the senate finance committee, the
   51  chairperson of the assembly ways and means committee and the state comp-
   52  troller. The aggregate amount of all  transfers  shall  not  exceed  two
   53  hundred [thirty-five] fifty-five million dollars.
   54    §  3.  Article  54 of the environmental conservation law is amended by
   55  adding a new title 14 to read as follows:
       S. 1409                            61                            A. 2109
 
    1                                  TITLE 14
    2        STATE PARKS AND LANDS INFRASTRUCTURE AND STEWARDSHIP PROJECTS
    3  Section 54-1401. Definitions.
    4          54-1402. State  parks  and  lands infrastructure and stewardship
    5                     projects.
    6  § 54-1401. Definitions.
    7    As used in this title:
    8    1. "Stewardship" shall mean the care  of  the  lands,  facilities  and
    9  natural  and cultural resources under the jurisdiction of the department
   10  and the office of parks, recreation and historic preservation on  behalf
   11  of the public, and the provision of public access thereto.
   12    2.  "State  parks  and  lands  infrastructure"  shall  mean state park
   13  resources, recreational facilities and  historic  sites  and  any  other
   14  property, real or personal, under the jurisdiction of the department and
   15  the office of parks, recreation and historic preservation, together with
   16  machinery,  equipment, furnishings and fixtures relating thereto or used
   17  in connection therewith.
   18    3. "State parks and lands  infrastructure  and  stewardship  projects"
   19  shall  mean  all costs incurred or to be incurred by or on behalf of the
   20  department and the office of parks, recreation and historic preservation
   21  for the purpose of preserving, improving or rehabilitating  state  parks
   22  and lands infrastructure. Such projects may include, but are not limited
   23  to:  natural resource and habitat restoration and protection such as the
   24  protection and management of biological, land, geological, archeological
   25  and other natural resources, survey and inventory, scientific  research,
   26  planning  and  analysis,  and  development  of  unit  management  plans;
   27  projects to improve public access  including  access  opportunities  for
   28  people with disabilities by developing, restoring, reconstructing, reha-
   29  bilitating and maintaining physical facilities, including but not limit-
   30  ed  to buildings, roads, bridges and waste disposal systems; projects to
   31  develop, maintain, or improve marine resource facilities,  water  access
   32  facilities, recreational trails, campgrounds, day use areas, fish hatch-
   33  eries,  public  beach  facilities,  visitor  centers,  interpretive  and
   34  conservation education facilities; and historic preservation projects to
   35  improve, restore  or  rehabilitate  property  listed  on  the  state  or
   36  national  registers of historic places to protect the historic, cultural
   37  or architectural significance thereof.
   38  § 54-1402. State  parks  and  lands   infrastructure   and   stewardship
   39               projects.
   40    1.  The  commissioner  and  the  commissioner of parks, recreation and
   41  historic preservation are authorized to undertake state parks and  lands
   42  infrastructure and stewardship projects.
   43    2.  No  monies shall be expended for state parks and lands infrastruc-
   44  ture and stewardship projects except pursuant to an appropriation there-
   45  for.
   46    § 4. Subdivision 7 of  section  92-s  of  the  state  finance  law  is
   47  REPEALED.
   48    §  5.  The title heading of title 5 of article 54 of the environmental
   49  conservation law, as added by chapter  610  of  the  laws  of  1993,  is
   50  amended to read as follows:
   51              NON-HAZARDOUS MUNICIPAL LANDFILL CLOSURE PROJECTS
   52               AND MUNICIPAL LANDFILL GAS MANAGEMENT PROJECTS
   53    §  6.  Subdivisions 2, 3 and 4 of section 54-0501 of the environmental
   54  conservation law, subdivision 2 as amended and subdivision 4 as added by
   55  section 17 of part A of chapter 58 of the laws of 1998, subdivision 3 as
       S. 1409                            62                            A. 2109
 
    1  added by chapter 610 of the laws of 1993, are amended and two new subdi-
    2  visions 5 and 6 are added to read as follows:
    3    2.    "Municipal [Landfill] landfill closure project" means activities
    4  undertaken to close, including by reclamation, a landfill owned or oper-
    5  ated by a municipality to achieve compliance with regulations promulgat-
    6  ed by the department, [or] activities undertaken to implement a landfill
    7  gas management system [project], or activities undertaken to implement a
    8  beneficial end-use.
    9    3. "Cost" means the capital  cost  of  a  municipal  landfill  closure
   10  project  or a municipal landfill gas management project, including engi-
   11  neering and architectural services, plans and specifications, consultant
   12  and legal services, and other direct capital expenses incident  to  such
   13  project,  less any federal or other assistance for such project received
   14  or to be received.
   15    4. "Landfill gas management system" means [a] an active system for the
   16  control, capture, and management of gas created within and emitted  from
   17  a solid waste landfill.
   18    5.  "Beneficial  end-use"  means  a public recreational use, such as a
   19  park, hiking trail, golf course, nature area, baseball field, ski slope,
   20  or sledding hill, or other public use demonstrated to the department  to
   21  be beneficial to a community.
   22    6. "Municipal landfill gas management project" means activities under-
   23  taken  to  implement a landfill gas management system at an active land-
   24  fill which is owned or operated by a municipality.
   25    § 7. The section heading  of  section  54-0503  of  the  environmental
   26  conservation  law,  as  added  by  chapter  610  of the laws of 1993, is
   27  amended and a new subdivision 5 is added to read as follows:
   28    Eligibility to receive state assistance payments for  municipal  land-
   29      fill closure projects.
   30    5.  For  a beneficial end-use, the landfill must have been closed, and
   31  currently be, in compliance with the department's solid waste management
   32  regulations which became effective on  December  thirty-first,  nineteen
   33  hundred eighty-eight or any subsequent revisions to such regulations.
   34    §  8.  The  environmental  conservation law is amended by adding a new
   35  section 54-0504 to read as follows:
   36  § 54-0504. Eligibility to receive state assistance payments for  munici-
   37               pal landfill gas management projects.
   38    Any  municipality  which  is  the  owner or operator of a landfill may
   39  apply for state assistance payments toward the cost of a municipal land-
   40  fill gas management project. Any application for  a  municipal  landfill
   41  gas  management  project must comply with all applicable rules and regu-
   42  lations promulgated by the department.
   43    § 9. Subdivision 1 of section 54-0505 of the  environmental  conserva-
   44  tion  law,  as  added  by chapter 610 of the laws of 1993, is amended to
   45  read as follows:
   46    1. State assistance  payments  shall  be  approved  only  for  closure
   47  projects  that  include plans for closure, post-closure and construction
   48  in accordance with the department's solid waste  management  regulations
   49  applicable  to  new projects[,] which were in effect six months prior to
   50  the date of submittal of the final application.
   51    § 10. The environmental conservation law is amended by  adding  a  new
   52  section 54-0506 to read as follows:
   53  § 54-0506. Criteria for municipal landfill gas management projects.
   54    Municipal  landfill  gas  management  project  costs incurred prior to
   55  April first, nineteen hundred ninety-three shall  not  be  eligible  for
   56  state assistance payments funded pursuant to this article.
       S. 1409                            63                            A. 2109
 
    1    § 11. Paragraphs b and c of subdivision 2 and subdivision 3 of section
    2  54-0507  of  the environmental conservation law, as added by chapter 610
    3  of the laws of 1993, are amended and a  new  paragraph  d  is  added  to
    4  subdivision 2 to read as follows:
    5    b. any adverse environmental impact resulting from the municipal land-
    6  fill, including effects on groundwater; [and]
    7    c. the ability of the municipality to pay for the costs of the munici-
    8  pal landfill closure[.] project; and
    9    d.  for  beneficial  end-uses, the community value of the recreational
   10  use to be provided to the public.
   11    3. No monies shall be expended for  non-hazardous  municipal  landfill
   12  closure  projects  or  municipal landfill gas management projects except
   13  pursuant to an appropriation therefor.
   14    § 12. The section heading and subdivision 2 of section 54-0509 of  the
   15  environmental  conservation law, the section heading as added by chapter
   16  610 of the laws of 1993, and subdivision 2 as amended by  section  1  of
   17  part  H  of  chapter  82  of  the  laws  of 2002, are amended to read as
   18  follows:
   19    Contracts for state assistance payments for municipal landfill closure
   20      projects and municipal landfill gas management projects.
   21    2. An agreement by the commissioner to make state assistance  payments
   22  toward  the  cost of the project by periodically reimbursing the munici-
   23  pality for costs incurred during the progress of the project [to]. For a
   24  municipal landfill closure project, which does not  include  a  landfill
   25  gas management system or beneficial end-use, such reimbursement shall be
   26  a  maximum of either fifty percent of the cost, or ninety percent of the
   27  cost for a municipality  with  a  population  smaller  than  thirty-five
   28  hundred  as  determined  by the current federal decennial census, or two
   29  million dollars, whichever is less. [The commissioner may consider land-
   30  fill gas management system projects  separately  from  landfill  closure
   31  projects.]  For  a  landfill  gas  management system, which is part of a
   32  municipal landfill closure project, reimbursement shall be a maximum  of
   33  either  fifty  percent  of the cost, or 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, which is part of a
   37  municipal landfill closure project, reimbursement shall be a maximum  of
   38  either  fifty  percent  of the cost, or ninety percent of the cost for a
   39  municipality with a  population  smaller  than  thirty-five  hundred  as
   40  determined  by  the  current  federal  decennial census, or five hundred
   41  thousand dollars, whichever  is  less.  For  a  municipal  landfill  gas
   42  management  project,  reimbursement  shall  be a maximum of either fifty
   43  percent of the cost, or ninety percent of the cost  for  a  municipality
   44  with  a population smaller than thirty-five hundred as determined by the
   45  current federal decennial census, or two million dollars,  whichever  is
   46  less.  Project  costs are subject to final computation and determination
   47  by the commissioner upon completion of the project, and shall not exceed
   48  the maximum cost set forth in the contract. For purposes of this  subdi-
   49  vision,  the approved project cost shall be reduced by the amount of any
   50  specific state assistance payments for  municipal  landfill  closure  or
   51  municipal landfill gas management project purposes received by the muni-
   52  cipality  from  any  source;  provided, however, that non-specific state
   53  assistance payments, such as amounts paid pursuant to section fifty-four
   54  of the state finance law, shall not be included in such cost reduction.
       S. 1409                            64                            A. 2109
 
    1    § 13. The section heading of  section  54-0511  of  the  environmental
    2  conservation  law,  as  added  by  chapter  610  of the laws of 1993, is
    3  amended to read as follows:
    4    Loans  for  municipal landfill closure projects and municipal landfill
    5      gas management projects.
    6    § 14.  This act shall take effect April 1, 2003; provided, however, if
    7  this act shall become a law after such date it shall take  effect  imme-
    8  diately  and  sections  one,  two,  three  and four of this act shall be
    9  deemed to have been in full force and effect on and after April 1, 2003.
 
   10                                   PART V
 
   11    Section 1. Subdivisions c, d, e, f, g, h and i of section  72-0602  of
   12  the environmental conservation law, as amended by chapter 62 of the laws
   13  of 1989, is amended to read as follows:
   14    c.  [$375.00]  $475.00  for  industrial  facilities having a permit to
   15  discharge or discharging at an average daily rate of  less  than  10,000
   16  gallons;
   17    d.  [$1,250.00] $1,575.00 for industrial facilities having a permit to
   18  discharge or discharging at an average  daily  rate  of  between  10,000
   19  gallons and 99,999 gallons;
   20    e.  [$3,750.00] $4,750.00 for industrial facilities having a permit to
   21  discharge or discharging at an average daily  rate  of  between  100,000
   22  gallons and 499,999 gallons;
   23    f.  [$12,500.00]  $15,750.00 for industrial facilities having a permit
   24  to discharge or discharging at an average daily rate of between  500,000
   25  and 999,999 gallons;
   26    g.  [$18,750.00]  $23,500.00 for industrial facilities having a permit
   27  to discharge  or  discharging  at  an  average  daily  rate  of  between
   28  1,000,000 and 9,999,999 gallons;
   29    h.  [$37,500.00]  $47,000.00 for industrial facilities having a permit
   30  to discharge or discharging at  an  average  daily  rate  of  10,000,000
   31  gallons or more;
   32    i. [$40,000.00] $50,000.00 for any power plant;
   33    § 2. This act shall take effect April 1, 2003.
 
   34                                   PART W
 
   35    Section 1. Paragraphs (a), (b) and (c) of subdivision 2 of section 202
   36  of  the  vehicle and traffic law, paragraph (a) as amended by chapter 61
   37  of the laws of 1989 and paragraphs (b) and (c) as amended by chapter 166
   38  of the laws of 1991, are amended to read as follows:
   39    (a) The fee for a search which is  made  manually  by  the  department
   40  shall be [five] six dollars.
   41    (b)  The fee for a search which is made by direct entry by a requester
   42  who has been approved for such entry by the commissioner shall be [four]
   43  five dollars.
   44    (c) The fee for a search which is made by means of an electronic medi-
   45  um which has been prepared by a requester who has been approved for such
   46  service by the commissioner and which is  processed  by  the  department
   47  shall be [four] five dollars.
   48    §  2. Notwithstanding any other law, rule or regulation to the contra-
   49  ry, all receipts collected by the commissioner of motor  vehicles  after
   50  March  31,  2003  pursuant to section 202 of the vehicle and traffic law
   51  are to be deposited to the credit of the dedicated  highway  and  bridge
   52  trust  fund,  with  the  exception of the one dollar per search increase
       S. 1409                            65                            A. 2109
 
    1  collected pursuant to section one of this act, which are to be deposited
    2  to the credit of the general fund from April 1, 2003 to March  31,  2004
    3  and  to  the  credit of the dedicated highway and bridge trust fund from
    4  April 1, 2004 and thereafter.
    5    §  3. Subdivision (d) of section 304-a of the vehicle and traffic law,
    6  as added by chapter 309 of the laws of  1996,  is  amended  to  read  as
    7  follows:
    8    (d) Fees, deposited. Fees assessed under this section shall be paid to
    9  the commissioner for deposit to the transportation safety account estab-
   10  lished  pursuant  to section ninety-one of the state finance law through
   11  March thirty-first, two thousand four and from April first, two thousand
   12  four and thereafter shall be deposited  to  the  dedicated  highway  and
   13  bridge trust fund.
   14    §  4.  Paragraphs  1  and  2 of subdivision (a) and subdivision (d) of
   15  section 305 of the vehicle and traffic law, as amended by chapter 608 of
   16  the laws of 1993, are amended to read as follows:
   17    (1) The fee for a certificate representing that  a  safety  inspection
   18  has  been  performed shall be two dollars, which shall be deposited into
   19  the transportation safety account established pursuant to section  nine-
   20  ty-one of the state finance law through March thirty-first, two thousand
   21  four  and  to  the  dedicated  highway  and bridge trust fund from April
   22  first, two thousand four and thereafter, and
   23    (2)  The  fee  for  a  certificate  representing  that  an   emissions
   24  inspection  has  been successfully completed shall be set by the commis-
   25  sioner through regulation, at an amount not to exceed [two] four dollars
   26  or [four] eight dollars if performed on  a  biennial  basis.  Such  fees
   27  shall  be deposited into the mobile source account of the clean air fund
   28  established by section ninety-seven-oo of the state finance law.
   29    (d) Fees assessed under this article shall be paid to the commissioner
   30  for deposit to the transportation safety account established pursuant to
   31  section ninety-one of the state finance law through March  thirty-first,
   32  two thousand four and from April first, two thousand four and thereafter
   33  shall  be  deposited  into  the dedicated highway and bridge trust fund,
   34  except that fees that are authorized to be collected  for  each  certif-
   35  icate  of  emissions  inspection  issued  by the commissioner, collected
   36  pursuant to paragraph two of subdivision (a) of this section,  shall  be
   37  deposited  into  the  mobile  source  account  of the clean air fund, as
   38  established by section ninety-seven-oo of the state finance law.
   39    § 5. Subdivisions 6 and 6-a of section 415 of the vehicle and  traffic
   40  law, as amended by chapter 7 of the laws of 2000, are amended to read as
   41  follows:
   42    6.  Fees.  Every  original application for registration as a dealer or
   43  transporter shall be accompanied by an application  fee  of  twenty-five
   44  dollars,  which shall in no event be refunded. The annual fee for regis-
   45  tration as a dealer or transporter or for renewal thereof shall  be  one
   46  hundred  fifty  dollars. The annual fee for any other registration under
   47  this section shall be fifty dollars. However, the commissioner  may,  in
   48  his  discretion,  issue a renewal of either registration for a period of
   49  two years. The fee for a two-year renewal shall be twice the annual fee.
   50  The annual fee for dealer or transporter number plates shall  be  twenty
   51  dollars  for  each set. If the commissioner issues to dealers a document
   52  which is required to be used by a dealer to sell or transfer a  vehicle,
   53  the  fee  for  the  issuance of each such document shall be [one dollar]
   54  five dollars. There shall be no refund of registration fee or  fees  for
   55  number  plates  in  the  event  of  suspension,  revocation or voluntary
   56  cancellation of registration. The fee for  any  such  transfer  document
       S. 1409                            66                            A. 2109
 
    1  issued  by the commissioner shall be refunded only upon the surrender of
    2  such document upon voluntary cancellation of registration.
    3    6-a.  Fees;  deposited. Fees assessed under this section shall be paid
    4  to the commissioner for deposit to the general fund, with the  exception
    5  of  the four dollar increase in the fee for issuance of a document to be
    6  used by a dealer to sell or transfer a  vehicle  collected  pursuant  to
    7  subdivision six of this section, which shall be deposited to the general
    8  fund through March thirty-first, two thousand four and from April first,
    9  two  thousand  four  and  thereafter to the dedicated highway and bridge
   10  trust fund.
   11    § 6. Paragraph 1 of subdivision (a) of section 2125 of the vehicle and
   12  traffic law, as amended by chapter 322 of the laws of 1993,  is  amended
   13  and a new subdivision (g) is added to read as follows:
   14    (1)  for  filing an application for a certificate of title, [five] ten
   15  dollars except where the application relates to a mobile home or a manu-
   16  factured home as defined in section one  hundred  twenty-two-c  of  this
   17  chapter, in which case the fee shall be twenty-five dollars;
   18    (g) Fees assessed for filing an application for a certificate of title
   19  shall be deposited to the credit of the general fund, with the exception
   20  of  the five dollar per application increase collected pursuant to para-
   21  graph one of subdivision (a) of this section, which shall  be  deposited
   22  in  the  general  fund through March thirty-first, two thousand four and
   23  from April first, two thousand four and thereafter shall be deposited to
   24  the credit of the dedicated highway and bridge trust fund.
   25    § 7. Notwithstanding any other law, rule or regulation to the  contra-
   26  ry,  the comptroller is hereby authorized and directed to deposit to the
   27  credit of the dedicated highway and bridge trust  fund  from  taxes  now
   28  deposited  in the general fund pursuant to the provisions of the vehicle
   29  and traffic law the amount of fifty-nine million nine  hundred  thousand
   30  dollars in twelve equal monthly installments from April 1, 2004 to March
   31  31, 2005.
   32    §  8.  Subdivision  2  of  section  205  of the tax law, as amended by
   33  section 125 of part A of chapter 389 of the laws of 1997, is amended and
   34  a new subdivision 3 is added to read as follows:
   35    2. Of moneys collected from taxes  imposed  by  sections  one  hundred
   36  eighty-three  and  one  hundred  eighty-four  of  this [chapter] article
   37  subsequent to June thirtieth, nineteen hundred eighty-two, sixty percent
   38  shall be deposited pursuant to the provisions  of  section  one  hundred
   39  seventy-one-a of this chapter, provided that after April first, nineteen
   40  hundred  ninety-six,  fifty-two  percent  of such moneys collected on or
   41  after such date shall be so deposited;  provided,  further,  that  after
   42  January first, nineteen hundred ninety-seven, fifty and one-half percent
   43  of  such  moneys  collected on or after such date shall be so deposited;
   44  provided, further, that after January first,  nineteen  hundred  ninety-
   45  eight,  forty-six percent of such moneys collected on or after such date
   46  shall be so deposited; provided, further, that after January first,  two
   47  thousand,  thirty-six  percent of such moneys collected on or after such
   48  date shall be so deposited; provided, further, that after January first,
   49  two thousand one but before  April  first,  two  thousand  four,  twenty
   50  percent  of  such  moneys  collected  on  or after such date shall be so
   51  deposited; and the balance of such collections shall be deposited in the
   52  mass transportation operating assistance  fund  to  the  credit  of  the
   53  metropolitan mass transportation operating assistance account; provided,
   54  however,  for  taxable years commencing on or after January first, nine-
   55  teen hundred eighty-five and ending on or before December  thirty-first,
   56  nineteen  hundred  eighty-nine, all of the moneys collected from the tax
       S. 1409                            67                            A. 2109
 
    1  imposed by section one hundred eighty-four of  this  chapter  on  corpo-
    2  rations, joint-stock companies or associations formed for or principally
    3  engaged  in  the  conduct  of  telephone  or telegraph business shall be
    4  deposited  in  the  mass transportation operating assistance fund to the
    5  credit of the  metropolitan  mass  transportation  operating  assistance
    6  account;  and  provided,  further, that the actual amount of moneys from
    7  the taxes imposed by sections one hundred eighty-three and  one  hundred
    8  eighty-four  of  this [chapter] article which shall be deposited in such
    9  mass transportation operating assistance  fund  to  the  credit  of  the
   10  metropolitan  mass transportation operating assistance account, pursuant
   11  to this subdivision, during the twelve month period  from  April  first,
   12  nineteen hundred eighty-five, to and including March thirty-first, nine-
   13  teen  hundred  eighty-six, shall not be less than sixty million dollars;
   14  provided, further, that for the  twenty-four  month  period  from  April
   15  first,  nineteen  hundred  ninety-four,  to  and including March thirty-
   16  first, nineteen hundred ninety-six, of the moneys  so  collected,  sixty
   17  percent  shall  be  deposited  in  the  general  fund  pursuant  to  the
   18  provisions of section one hundred seventy-one-a of this  chapter,  thir-
   19  ty-four  and four-tenths percent shall be deposited in the revenue accu-
   20  mulation fund and five and six-tenths percent shall be deposited in such
   21  mass transportation operating assistance fund  to  the  credit  of  such
   22  metropolitan mass transportation operating assistance account.
   23    3.  From  the  moneys collected from the taxes imposed by sections one
   24  hundred eighty-three and one hundred eighty-four of this article on  and
   25  after  April  first,  two  thousand  four,  after  reserving amounts for
   26  refunds or reimbursements, twenty percent of such moneys shall be depos-
   27  ited to the credit of the dedicated highway and bridge trust fund estab-
   28  lished by section eighty-nine-b of the state finance law. The  remainder
   29  shall  be deposited in the mass transportation operating assistance fund
   30  to the credit of the metropolitan mass transportation operating  assist-
   31  ance  account  created  pursuant  to section eighty-eight-a of the state
   32  finance law.
   33    § 9. Paragraph (a) of subdivision 3  of  section  89-b  of  the  state
   34  finance law, as amended by section 1 of part D of chapter 85 of the laws
   35  of 2002, is amended to read as follows:
   36    (a)  The  special obligation reserve and payment account shall consist
   37  (i) of all moneys required to be deposited in the dedicated highway  and
   38  bridge  trust  fund  pursuant  to the provisions of sections two hundred
   39  five, two hundred  eighty-nine-e,  three  hundred  one-j,  five  hundred
   40  fifteen  and  eleven  hundred  sixty-seven  of the tax law, section four
   41  hundred one of the vehicle and traffic law, and  section  thirty-one  of
   42  chapter fifty-six of the laws of nineteen hundred ninety-three, (ii) all
   43  fees, fines or penalties collected by the commissioner of transportation
   44  pursuant to section fifty-two and subdivisions five, eight and twelve of
   45  section  eighty-eight of the highway law, subdivision fifteen of section
   46  three hundred eighty-five of the vehicle and traffic law, section two of
   47  the chapter of the laws of two thousand three that  amended  this  para-
   48  graph, subdivision (d) of section three hundred four-a, paragraph one of
   49  subdivision  (a)  and  subdivision  (d)  of  section three hundred five,
   50  subdivision six-a of section four hundred fifteen and subdivision (g) of
   51  section twenty-one hundred twenty-five of the vehicle and  traffic  law,
   52  section  fifteen  of  this  chapter, excepting moneys deposited with the
   53  state on account of betterments performed pursuant to subdivision  twen-
   54  ty-seven  or  subdivision thirty-five of section ten of the highway law,
   55  and (iii) any other moneys collected therefor or credited or transferred
   56  thereto from any other fund, account or source.
       S. 1409                            68                            A. 2109
 
    1    § 10. Section 91 of the state finance law is REPEALED.
    2    §  11. This act shall take effect immediately; provided, however, that
    3  section ten of this act shall take effect April 1, 2004.
 
    4                                   PART X
 
    5    Section 1. Short title. This act shall be known and may  be  cited  as
    6  the "Waste Tire Management and Recycling Act of 2003".
    7    §  2.  Subdivision 6 of section 27-0703 of the environmental conserva-
    8  tion law, as added by chapter 88 of the laws of 1989, is amended to read
    9  as follows:
   10    6. Notwithstanding any other provision of law or rule or regulation to
   11  the contrary, the owner or operator of a solid waste management facility
   12  engaged in the storage of one thousand or more waste tires in  existence
   13  on  or  after the effective date of this subdivision shall submit to the
   14  department a completed application for a permit to continue  to  operate
   15  such  facility, or cease operations and begin removal of the waste tires
   16  from the facility and dispose of or treat them in a lawful manner pursu-
   17  ant to a removal plan approved by the department.  The owner or operator
   18  must provide financial assurance to cover the cost  of  closure  of  the
   19  facility at its maximum capacity, in a form and amount acceptable to the
   20  department, before a permit will be issued.
   21    §  3.  Article  27 of the environmental conservation law is amended by
   22  adding a new title 19 to read as follows:
 
   23                                  TITLE 19
   24                     WASTE TIRE MANAGEMENT AND RECYCLING
 
   25  Section 27-1901. Definitions.
   26          27-1903. Waste tire management priorities.
   27          27-1905. Mandatory tire acceptance.
   28          27-1907. Abatement of noncompliant waste tire stockpiles.
   29          27-1909. Market development.
   30          27-1911. Prohibition on land burial.
   31          27-1913. Waste tire management and recycling fee.
   32          27-1915. Use of funds.
   33  § 27-1901. Definitions.
   34    When used in this title:
   35    1. "Abatement" means the removal of a sufficient number of waste tires
   36  from a noncompliant waste tire stockpile and restoration of the site  to
   37  a  condition  that is in substantial compliance with the rules and regu-
   38  lations administered by the department for waste  tire  storage  facili-
   39  ties.
   40    2. "Beneficial use" means the use of solid waste material, which would
   41  otherwise  need to be placed in a landfill or disposed of through alter-
   42  native means, in such a manner that the nature of the use of the materi-
   43  al constitutes a reuse rather than  disposal.  Beneficial  uses  include
   44  incorporation  of  a solid waste material, which is a legitimate substi-
   45  tute for a raw material, into a  product  marketable  to  an  end  user.
   46  Waste  tires  which  are burned as a fuel for the purposes of recovering
   47  useable energy are considered to be beneficially used only at the  point
   48  at which they are burned.
   49    3.  "End  use"  means that a product requires no further processing or
   50  manufacturing and is used by  a  consumer  for  the  product's  intended
   51  application.
   52    4. "End user" means the ultimate customer of a finished product.
       S. 1409                            69                            A. 2109
 
    1    5. "New tire" means a tire that has never been placed on a motor vehi-
    2  cle  wheel  rim.  It  does not include recapped or resold tires or tires
    3  placed on a motor vehicle prior to its original retail sale.
    4    6.  "Noncompliant  waste tire stockpile" means a facility, including a
    5  waste tire storage facility, parcel of property, or site  so  designated
    6  by  the  department in accordance with this title, where one thousand or
    7  more waste tires or mechanically processed waste tires have been accumu-
    8  lated, stored or buried in a manner that the department  has  determined
    9  is  not  in  accordance  with  departmental  regulations governing waste
   10  tires, or any applicable law.
   11    7. "Recycle" means to use recyclables in manufacturing a  product  for
   12  an end use other than burning for recovery of useable energy.
   13    8.  "Recyclables"  means solid waste materials that exhibit the poten-
   14  tial to be used to make marketable products for end users.
   15    9. "Tire service" means any person or business in New York  state  who
   16  sells or installs new tires for use on any vehicle.  A person who is not
   17  the  end point of sale and any governmental agency or political subdivi-
   18  sion are excluded from this term.
   19    10. "Vehicle" means any device which by virtue  of  its  design  could
   20  qualify  for  registration  pursuant  to section four hundred one of the
   21  vehicle and traffic law.
   22    11. "Waste tire" means any solid waste which consists of  whole  tires
   23  or  portions  of  tires. Tire casings separated for retreading and tires
   24  with sufficient tread for resale shall  be  included  under  this  term,
   25  however, crumb rubber shall not be considered a solid waste.
   26    12.  "Waste  tire  storage  facility"  means a facility at which waste
   27  tires are stored and for which a permit or registration has been issued,
   28  pursuant to department regulations.
   29  § 27-1903. Waste tire management priorities.
   30    In the interest of public health, safety and welfare and in  order  to
   31  conserve  natural resources and to promote recycling and market develop-
   32  ment for waste tires, the state of New York establishes a policy on  the
   33  management of waste tires that states:
   34    1. The waste tire management priorities in this state are:
   35    (a) first, to reduce the number of waste tires generated;
  36    (b) second, to recycle waste tires into value-added products;
   37    (c)  third,  to  beneficially  use  waste  tires in an environmentally
   38  acceptable manner, including the beneficial  use  in  civil  engineering
   39  applications; and
   40    (d) fourth, to recover, in an environmentally acceptable manner, ener-
   41  gy  from  waste  tires that cannot be economically recycled or otherwise
   42  beneficially used.
   43    2. State government must make a contribution to  the  development  and
   44  implementation  of  environmentally, economically and technically viable
   45  waste tire management programs.  The  department  shall  cooperate  with
   46  other  state agencies to ensure that waste tires are effectively managed
   47  and used in environmentally acceptable ways.
   48  § 27-1905. Mandatory tire acceptance.
   49    Any tire service shall:
   50    1. Accept from a customer, waste tires of approximately the same  size
   51  and  in  a  quantity  equal  to  the  number  of  new tires purchased or
   52  installed by the customer; and
   53    2. Post written notice in a prominent location, which must be at least
   54  eight and one-half inches by fourteen inches in  size  and  contain  the
   55  following language:
       S. 1409                            70                            A. 2109
 
    1    "New  York State law requires us to accept and manage waste tires from
    2  vehicles in exchange for an equal number of new tires that  we  sell  or
    3  install.    We are required to charge a separate and distinct waste tire
    4  management and recycling fee of two dollars and fifty cents for each new
    5  tire  we  sell.  Any  additional tire management and recycling costs are
    6  included in the advertised price of the new tire."
    7  § 27-1907. Abatement of noncompliant waste tire stockpiles.
    8    1. No later than one year from the effective date of this  title,  the
    9  department  shall  prepare  a  comprehensive  plan designed to abate all
   10  noncompliant waste tire stockpiles.  This plan shall establish a noncom-
   11  pliant waste tire stockpile abatement priority  list  and  schedule  for
   12  abatement  of  each noncompliant waste tire stockpile based on potential
   13  adverse impacts upon public health, safety or welfare, the  environment,
   14  or natural resources.
   15    2. The owner or operator of a noncompliant waste tire stockpile shall,
   16  at the department's request, submit to and/or cooperate with any and all
   17  remedial measures necessary for the abatement of noncompliant waste tire
   18  stockpiles paid for with funds appropriated by the state.
   19    3.  The  department  shall  publish  requests  for  proposals  to seek
   20  contractors to prepare whole  and  mechanically  processed  waste  tires
   21  situated  at  noncompliant  waste  tire  stockpiles  for  arrangement in
   22  accordance with fire safety requirements and for removal for appropriate
   23  processing, recycling or beneficial use.  Disposal  will  be  considered
   24  only  as a last option. The expenses of abatement and fire safety activ-
   25  ities at a noncompliant waste tire stockpile shall be paid by the person
   26  or persons who owned, operated or maintained the noncompliant waste tire
   27  stockpile, or from funds appropriated by the state and shall be  a  debt
   28  recoverable  by  the state from all persons who owned, operated or main-
   29  tained the noncompliant waste tire stockpile, and a lien and charge  may
   30  be  placed on the premises upon which the noncompliant waste tire stock-
   31  pile is maintained. Moneys recovered shall be paid to the  environmental
   32  conservation  special  revenue fund, waste tire management and recycling
   33  account.
   34    4. If execution upon a judgment for the recovery of  the  expenses  of
   35  any  such  abatement  and fire safety activities at a noncompliant waste
   36  tire stockpile is returned wholly or partially unsatisfied,  such  judg-
   37  ment,  if  docketed  in  the  place and manner required by law to make a
   38  judgment of a court of record a lien upon  real  property,  shall  be  a
   39  first  lien  upon  such premises, having preference over all other liens
   40  and encumbrances whatever.  Notwithstanding  the  foregoing,  such  lien
   41  shall not have preference over any mortgage or other encumbrance for the
   42  benefit  of the state of New York or a public benefit corporation there-
   43  of.
   44    5. The department shall have authority to enter all noncompliant waste
   45  tire stockpiles for the purpose of investigation and abatement.
   46  § 27-1909. Market development.
   47    No later than one year after the effective  date  of  this  title  and
   48  continuing  annually  thereafter, the department of economic development
   49  shall:
   50    1. assist private market development with new technologies  for  waste
   51  tire  reuse  and  recycling with an emphasis on higher-value end uses in
   52  order to further create and enhance sustainable markets;
   53    2. provide industrial and consumer  education  on  other  benefits  of
   54  recycled  waste  tire product through the preparation of fact sheets and
   55  public workshops; and
       S. 1409                            71                            A. 2109
 
    1    3. prepare an annual summary report and analysis of markets and dispo-
    2  sition of both New York state stockpiled tires and New York state  annu-
    3  ally  generated  waste  tires.  This  report  shall  be submitted to the
    4  department and legislature by the last day of March of each year.
    5  § 27-1911. Prohibition on land burial.
    6    No  moneys  from  the environmental conservation special revenue fund,
    7  waste tire management and recycling account shall be used to dispose  of
    8  waste  tires  in a landfill unless the department has determined that it
    9  is not feasible to convert the waste tires to a beneficial use.  Depart-
   10  ment-approved  beneficial  uses of scrap-tire-derived material for leac-
   11  hate collection systems, or gas collection systems in  the  construction
   12  or operation of a landfill are not considered disposal.
   13  § 27-1913. Waste tire management and recycling fee.
   14    1.  A waste tire management and recycling fee of two dollars and fifty
   15  cents shall be charged on each new tire sold. The fee shall be  paid  by
   16  the purchaser to the tire service at the time the new tire is purchased.
   17    The fee does not apply to:
   18    (a) recapped or resold tires;
   19    (b) mail-order sales; or
   20    (c)  the  sale  of  new motor vehicle tires to a person solely for the
   21  purpose of resale provided the subsequent retail sale in this  state  is
   22  subject to such fee.
   23    2.  The  tire  service shall collect the fee from the purchaser at the
   24  time of the sale and shall remit such fee to the department of  taxation
   25  and  finance  with  the  quarterly  report filed pursuant to subdivision
   26  three of this section.
   27    (a) The fee imposed shall be stated as an invoice  item  separate  and
   28  distinct from the selling price of the tire.
   29    (b) The tire service shall be entitled to retain an allowance of twen-
   30  ty-five cents per tire from fees collected.
   31    (c)  Any  additional  management  and  recycling costs of the retailer
   32  shall be included in the published selling price of the new tire.
   33    3. Each tire service maintaining a place of  business  in  this  state
   34  shall make a return to the department of taxation and finance on a quar-
   35  terly basis, with the return for January, February, and March of a given
   36  year  being  due  by April thirtieth of that year; the return for April,
   37  May, and June of a given year being due by  July  thirty-first  of  that
   38  year;  the  return for July, August, and September of a given year being
   39  due by October thirty-first of that year; and the  return  for  October,
   40  November, and December of a given year being due by January thirty-first
   41  of the following year.
   42    (a) Each return shall include:
   43    (i) the name of the tire service;
   44    (ii) the address of the tire service's principal place of business and
   45  the  address  of the principal place of business (if that is a different
   46  address) from which the tire service engages in the business  of  making
   47  retail sales of tires;
   48    (iii) the name and signature of the person preparing the return;
   49    (iv)  the  total  number of new tires sold at retail for the preceding
   50  quarter;
   51    (v) the amount of waste tire management and recycling fees due; and
   52    (vi) such other reasonable information as the department  of  taxation
   53  and finance may require.
   54    (b)  Copies  of  each report shall be retained by the tire service for
   55  three years.
       S. 1409                            72                            A. 2109
 
    1    If a tire service ceases business, it shall file a  final  return  and
    2  remit  all fees due under this title with the department of taxation and
    3  finance not more than one month after discontinuing that business.
    4    4.  All  waste  tire  management  and  recycling fees collected by the
    5  department of taxation and finance shall be transferred to  the  general
    6  fund  state purposes account established pursuant to section seventy-two
    7  of the state finance law.
    8  § 27-1915. Use of funds.
    9    Funds from the environmental conservation special revenue fund,  waste
   10  tire  management  and recycling account, shall be made available for the
   11  following purposes:
   12    1. scoping and assessment costs:
   13    (a). enumeration and assessment of noncompliant waste tire stockpiles;
   14  and
   15    (b). aerial reconnaissance to locate, survey  and  characterize  sites
   16  environmentally, for remote sensing, spacial analysis and scanning;
   17    2. abatement of noncompliant waste tire stockpiles;
   18    3. administration of the requirements of this article;
   19    4.  conducting  an  updated  market analysis of outlets for waste tire
   20  utilization including recycling and energy recovery opportunities;
   21    5. establishment of a program to provide funds to businesses to devel-
   22  op technology that leads to increased markets for waste tires;
   23    6. funding of demonstration projects  to  develop  markets  for  waste
   24  tires;
   25    7.  funding  of demonstration and other projects for road base, paving
   26  and other civil engineering uses;
   27    8. funding research projects which will enhance sustainable waste tire
   28  recycling activities;
   29    9. study of noncompliant waste tire stockpiles  for  the  presence  of
   30  mosquitos and other vectors capable of transmitting diseases; and
   31    10. development of recommendations to protect public health.
   32    § 4. Subparagraph (a) of paragraph 1 of subdivision (c) of section 301
   33  of the vehicle and traffic law, as amended by chapter 161 of the laws of
   34  1996, is amended and a new paragraph 3 is added to read as follows:
   35    (a)  A  safety inspection shall be made with respect to the brakes[,];
   36  steering mechanism[,];  wheel alignment[,]; lights,  including  but  not
   37  limited to the lights which are designed and placed on a vehicle for the
   38  purpose  of  illuminating  the vehicle's license plates[,]; odometer[,];
   39  tire pressure; seat safety belts[,]; shoulder harness safety  belts  and
   40  such  other  mechanisms  and  equipment  as  shall  be determined by the
   41  commissioner to be  necessary  for  proper  and  safe  operations.  Such
   42  inspection  shall  also  be  made with respect to vehicle identification
   43  number. Upon inspection, the mileage appearing on the odometer shall  be
   44  recorded upon the inspection sticker.
   45    (3)  Improper  tire  pressure  shall  not be reason for failure of the
   46  inspection, but, rather, shall be corrected by the inspection station.
   47    § 5. This act shall take effect on the one hundred twentieth day after
   48  it shall have become a law and  shall apply to taxable  years  beginning
   49  on or after January 1, 2003.
 
   50                                   PART Y
 
   51    Section  1.  The  opening  paragraph  and the opening paragraph of the
   52  second unlettered paragraph of subdivision 4 of section 19-0320  of  the
   53  environmental  conservation  law, as added by chapter 621 of the laws of
   54  1998, are amended to read as follows:
       S. 1409                            73                            A. 2109
 
    1    [It shall be a violation of this section to  operate]  Notwithstanding
    2  the  provisions of title twenty-one of article seventy-one of this chap-
    3  ter, operation of a heavy duty vehicle which, when tested, exceeds emis-
    4  sion levels set  forth  in  regulations  promulgated  pursuant  to  this
    5  section shall be a violation.
    6    [Notwithstanding  the provisions of title twenty-one of article seven-
    7  ty-one of this chapter, the] The following penalties shall apply to  any
    8  violation found as a result of roadside emissions inspections:
    9    §  2. The opening paragraph of subdivision 5 of section 19-0320 of the
   10  environmental conservation law, as added by chapter 621 of the  laws  of
   11  1998, is amended to read as follows:
   12    [It  shall  be a violation of this section to operate] Notwithstanding
   13  the provisions of title twenty-one of article seventy-one of this  chap-
   14  ter,  operation  of  any heavy duty vehicle registered or required to be
   15  registered in this state without a certificate of  inspection  resulting
   16  from an annual inspection as required by regulations adopted pursuant to
   17  this  section[.    Notwithstanding the provisions of title twenty-one of
   18  article seventy-one of this chapter, the] shall be a violation.
   19    The following violation structure shall apply to such violations:
   20    § 3. The vehicle and traffic law is amended by adding  a  new  section
   21  301-b to read as follows:
   22    §  301-b.  Heavy duty vehicle emissions. 1. It shall be a violation to
   23  operate a heavy duty  vehicle  which,  when  tested,  exceeds  emissions
   24  levels  set  forth  in section 19-0320 of the environmental conservation
   25  law or regulations adopted thereunder.  The  following  penalties  shall
   26  apply  to  any  violation  found  as  a  result  of  roadside  emissions
   27  inspections:
   28    a.     First violation:                    $700.00
   29           Second and subsequent violations:   $1300.00.
   30    b. The penalties set forth in paragraph a of this subdivision shall be
   31  reduced to one hundred fifty dollars for the first  violation  and  five
   32  hundred dollars for the second and subsequent violations by the court or
   33  administrative tribunal before which the summons or appearance ticket is
   34  returnable if the violation set forth in the summons or appearance tick-
   35  et  is  corrected  not  later than thirty days after the issuance of the
   36  summons or appearance ticket and proof of such correction, as defined in
   37  paragraph c of this subdivision, is submitted to the court  or  adminis-
   38  trative  tribunal.  The  penalties  described  in this section shall not
   39  apply to vehicles defined by section one hundred forty-two of this chap-
   40  ter or owned by a county, town, city, or village for a  first  violation
   41  provided the vehicle is repaired within thirty days of ticket issuance.
   42    c.  Acceptable proof of repair or adjustment shall be submitted to the
   43  court or administrative tribunal on or before the  return  date  of  the
   44  summons  or  appearance  ticket in a form and manner prescribed by regu-
   45  lations adopted pursuant to this section.
   46    2. It shall be a violation to operate any heavy  duty  vehicle  regis-
   47  tered  or  required to be registered in this state without a certificate
   48  of inspection resulting from an annual inspection  as  required  by  the
   49  heavy duty vehicle emissions reduction act or regulations adopted there-
   50  under. The following violation structure shall apply to such violations:
   51    a.     First violation:                    $ 700.00
   52           Second and subsequent violations:   $1300.00.
   53    b.  The  penalties defined in paragraph a of this subdivision shall be
   54  reduced to three hundred fifty dollars for the first violation and seven
   55  hundred fifty dollars for second  and  subsequent  violations,  provided
   56  that  the vehicle in question bears a certificate which was valid within
       S. 1409                            74                            A. 2109
 
    1  the last thirty days. The penalties described in this section shall  not
    2  apply to vehicles defined by section one hundred forty-two of this chap-
    3  ter  or  owned by a county, town, city, or village for a first violation
    4  provided the vehicle is inspected within thirty days of ticket issuance.
    5    3.  Any fines collected for violations of this section shall be depos-
    6  ited in the clean air fund, to the credit of the mobile  source  account
    7  in  accordance  with  the  provisions  of section ninety-seven-oo of the
    8  state finance law.
    9    § 4. Subdivision 4 of section 97-oo  of  the  state  finance  law,  as
   10  amended  by  chapter  621  of  the  laws  of 1998, is amended to read as
   11  follows:
   12    4. The mobile source account shall consist of monies collected  pursu-
   13  ant to section three hundred one-b of the vehicle and traffic law, para-
   14  graph  two of subdivision (a) of section three hundred five of the vehi-
   15  cle and traffic law, any monies collected pursuant  to  paragraph  K  of
   16  subdivision seven of section four hundred one of the vehicle and traffic
   17  law and subdivision four of section 71-2103 of the environmental conser-
   18  vation  law,  and all interest accrued on any such monies deposited into
   19  the account.
   20    § 5. Section 10 of chapter 621 of the laws of 1998, amending the envi-
   21  ronmental conservation  law,  the  public  authorities  law,  the  state
   22  finance  law,  the  transportation  law  and the vehicle and traffic law
   23  relating to heavy duty vehicle emissions reduction, is amended  to  read
   24  as follows:
   25    §  10.  This  act shall take effect immediately provided that it shall
   26  not apply to vehicles defined by section one hundred  forty-two  of  the
   27  vehicle and traffic law or vehicles owned by counties, towns, cities, or
   28  villages,  and vehicles defined by section one hundred four of the vehi-
   29  cle and traffic law until June 1, 2000[, and provided further that  this
   30  act shall expire five years after such effective date].
   31    §  6.  This  act  shall take effect immediately and shall be deemed to
   32  have been in full force and effect on and after April 1, 2003.
 
   33                                   PART Z
 
   34    Section 1. Section 44-0101 of the environmental conservation  law,  as
   35  added by chapter 748 of the laws of 1991, is amended to read as follows:
   36  § 44-0101. Legislative intent.
   37    The Hudson river valley region possesses unique scenic beauty, natural
   38  and  cultural  resources  of  state  and  national significance. Efforts
   39  including the creation of a state  management  program  for  the  Hudson
   40  estuarine  district  and  fishery,  establishment  of the [heritage task
   41  force] National Heritage Area for the Hudson river valley, establishment
   42  of five state designated [urban cultural parks] Heritage  Areas  in  the
   43  valley  [and],  the  preparation of numerous local government waterfront
   44  revitalization programs in the valley, and the designation of the entire
   45  Hudson river as an American  Heritage  River  have  been  undertaken  in
   46  recent  years  to  protect  and  enhance  the  special places of scenic,
   47  cultural and ecological importance. It is the intention of the  legisla-
   48  ture  that these efforts be continued and strengthened under the cooper-
   49  ative program of the Hudson river valley greenway in order  to  continue
   50  and  advance the state's commitment to the preservation, enhancement and
   51  development of the world-renowned scenic,  natural,  historic,  cultural
   52  and  recreational  resources of the Hudson river valley while continuing
   53  to emphasize economic development activities  and  remaining  consistent
   54  with the tradition of municipal home rule.
       S. 1409                            75                            A. 2109
 
    1    §  2.  The opening paragraph and subdivisions 2, 3, 4 and 8 of section
    2  44-0103 of the environmental conservation law, the opening paragraph  as
    3  amended  and  subdivisions  2, 3, 4 and 8 as added by chapter 748 of the
    4  laws of 1991, are amended to read as follows:
    5    As  used in this article, the following words and terms shall have the
    6  following meanings [unless the context indicates  another  or  different
    7  meaning or intent]:
    8    2. "Compact"  or  "greenway  compact"  shall mean the overall greenway
    9  plan adopted by the [council] commission pursuant to  section  [44-0119]
   10  44-0113 of this article.
   11    [3. "Conservancy"  or  "greenway  heritage conservancy" shall mean the
   12  greenway heritage conservancy for the  Hudson  river  valley,  a  public
   13  benefit  corporation,  reestablished pursuant to section 44-0111 of this
   14  article.]
   15    4. ["Council"] "Commission" shall mean the Hudson river valley  green-
   16  way  [communities  council  reenacted]  commission  enacted  pursuant to
   17  section 44-0105 of this article.
   18    8. "Greenway districts" or "districts" shall mean areas made of neigh-
   19  boring communities within the greenway and designated by  the  [council]
   20  commission for the purpose of regional planning.
   21    §  3.  Section 44-0105 of the environmental conservation law, as added
   22  by chapter 748 of the laws of 1991, subdivision 1 as amended by  chapter
   23  284  of  the laws of 1996 and subdivision 3 as amended by chapter 749 of
   24  the laws of 1991, is amended to read as follows:
   25  § 44-0105. Hudson   river   valley   greenway   [communities    council]
   26               commission.
   27    1.  The  [governor's  council  on  the]  Hudson  river valley greenway
   28  commission is hereby [recreated] created within the executive department
   29  [to be the Hudson river valley greenway communities council]. The [coun-
   30  cil] commission shall consist of a total of [twenty-seven] thirty voting
   31  members. The governor shall appoint [two] three  members,  one  of  whom
   32  shall  be  the chairperson.   The legislative body of each town, city or
   33  village other than the city of New York which is adjacent to the  Hudson
   34  river  may  forward  the  names  of  a  recommended [council] commission
   35  appointee to the chief elected official of the county  in  which  it  is
   36  incorporated.  One voting member shall be appointed from among the names
   37  forwarded by the towns, cities and villages by the chief  elected  offi-
   38  cial  of  each  of  the  ten  counties of Westchester, Putnam, Dutchess,
   39  Columbia, Rensselaer, Albany, Greene, Ulster, Orange and  Rockland,  and
   40  two  voting  members  shall be appointed by the mayor of the city of New
   41  York after consultation with the presidents of the boroughs of the Bronx
   42  and Manhattan.  Two voting members shall be appointed by  the  temporary
   43  president  of the senate, one of whom must reside in the countryside and
   44  two voting members shall be appointed by the speaker  of  the  assembly,
   45  one  of whom must reside in the countryside.  One voting member shall be
   46  appointed by the minority leader of the senate  and  one  voting  member
   47  shall  be  appointed  by  the  minority  leader  of  the  assembly. Such
   48  appointed legislative representatives may designate  a  duly  authorized
   49  representative  to  attend  [council]  commission meetings and to act in
   50  their place. The following [seven] nine  members  shall  be  ex  officio
   51  members:  the  commissioner,  the  commissioner of parks, recreation and
   52  historic preservation, the secretary of state [and],  the  commissioners
   53  of general services, transportation, agriculture and markets and econom-
   54  ic  development,  the  chair  of  the  senate committee on environmental
   55  conservation and the chair of the assembly  committee  on  environmental
   56  conservation,  or  their  designated representatives [who, to the extent
       S. 1409                            76                            A. 2109
 
    1  practicable, shall be residents  of  the  Hudson  valley].  All  persons
    2  responsible  for appointing members of the [council] commission shall be
    3  mindful of the importance of assuring  adequate  representation  on  the
    4  [council]  commission  of  the  interests of various municipal entities,
    5  conservationists, business owners  and  operators,  persons  engaged  in
    6  agricultural  pursuits,  minorities and educators.   Notwithstanding the
    7  foregoing provisions of this subdivision, in the event that there is  no
    8  vacancy  in  the  membership of the [council] commission and there is no
    9  member of the [council] commission who  is  a  member  of  an  organized
   10  sporting  association,  club or society, the membership of the [council]
   11  commission  shall  be  increased  to  [twenty-eight]  thirty-one  voting
   12  members.  The  [twenty-eighth]  thirty-first  voting  member  shall be a
   13  representative of the organized sporting community and shall be selected
   14  from the population of the Hudson river valley by a vote of  the  [coun-
   15  cil]  commission.   In the event of a vacancy occurring in the office of
   16  any member, such vacancy shall be filled  in  the  same  manner  as  the
   17  original  appointment.    The  members of the [council] commission shall
   18  serve without compensation, except that members shall be  allowed  their
   19  necessary  and  actual  expenses  incurred  in  the performance of their
   20  duties under this article. [Any person other than an ex  officio  member
   21  who  serves  as  a member of the council, shall not serve as a member of
   22  the conservancy.] No officer, member or employee of the commission shall
   23  receive or may be lawfully entitled to receive any pecuniary profit from
   24  the operation thereof except, to the extent available from the fund, for
   25  expenses actually and necessarily incurred, including reasonable compen-
   26  sation to employees for  services  in  effecting  one  or  more  of  the
   27  purposes set forth in this article.
   28    2.  The [council] commission shall meet at least once every two months
   29  and shall encourage attendance at such meetings of representatives  from
   30  local  governments  in the greenway and other interested parties. Copies
   31  of the minutes of each meeting with the date of the next scheduled meet-
   32  ing shall be made available to interested parties at their request.
   33    3. Every state agency and public corporation  having  jurisdiction  of
   34  land  or  water  within  the  greenway  or  of  programs relating to the
   35  purposes and goals of this article shall, to the fullest extent  practi-
   36  cable, offer full cooperation and assistance to the [council] commission
   37  in carrying out the provisions of this article.
   38    4. Every local agency with programs relating to the greenway may offer
   39  assistance to the [council] commission in carrying out the provisions of
   40  this article.
   41    §  4.  Section 44-0107 of the environmental conservation law, as added
   42  by chapter 748 of the laws of 1991, subdivisions 7, 9, 11, 13 and 19  as
   43  amended  and  subdivision 22 as added by chapter 749 of the laws of 1991
   44  and subdivisions 14, 15 and 23 as amended by chapter 225 of the laws  of
   45  1995, is amended to read as follows:
   46  § 44-0107. Powers and duties of the [council] commission.
   47    The [council] commission shall have the power:
   48    1. To make by-laws for the management and regulation of its affairs.
   49    2.  To  make and execute contracts and all other instruments necessary
   50  or convenient for the exercise of its powers and  functions  under  this
   51  article.
   52    3.  To  appoint  an executive officer, officers, agents and employees,
   53  and prescribe their duties and  qualifications  and  fix  their  compen-
   54  sation.
       S. 1409                            77                            A. 2109
 
    1    4.  To  utilize,  to  the extent feasible, the staff and facilities of
    2  existing state agencies, pursuant to an allocation to  be  made  by  the
    3  state division of the budget.
    4    5. To contract for professional and technical assistance and advice.
    5    6. To contract for and to accept assistance, including but not limited
    6  to gifts, grants, or loans of funds or personal property from the feder-
    7  al  government  or  any  agency  or instrumentality thereof, or from any
    8  agency or instrumentality of the state, or  from  any  other  public  or
    9  private source and to comply, subject to the provisions of this article,
   10  with  the terms and conditions thereof. Notwithstanding the provision of
   11  section eleven of the state finance law, the  [council]  commission  may
   12  accept  gifts,  grants,  devises  and  bequests,  whether conditional or
   13  unconditional providing that any gifts, grants, devises and bequests  be
   14  consistent with greenway criteria.
   15    7.    To  sue on causes of action consistent with the purposes and its
   16  responsibilities under this article and with  respect  to  contracts  to
   17  which  it  is a party, but not for general enforcement of state or local
   18  environmental or planning laws, provided that the right  to  sue,  other
   19  than with respect to contracts, to which it is a party, shall be limited
   20  to  causes  of action arising within the boundaries of the greenway; and
   21  to be sued.
   22    8.  To establish and maintain such facilities as may be necessary  for
   23  the transacting of its business.
   24    9.    To  hold  hearings  in the exercise of its powers, functions and
   25  duties provided for by this article.
   26    10.  To encourage individuals, corporations,  associations,  organiza-
   27  tions  and  public  agencies  to preserve and enhance the natural scenic
   28  beauty and heritage of the Hudson river valley  and  the  lands,  water,
   29  exemplary  natural  communities, aesthetic and cultural resources of the
   30  Hudson river valley, as well as manage and conserve the  fish,  wildlife
   31  and  endangered  plant and animal species, and to increase public access
   32  to the waters of the Hudson river.
   33    11.  To  conduct  scientific,  environmental,  economic,  tourism  and
   34  cultural  studies  within  the  valley  that are germane to the greenway
   35  criteria.
   36    [8] 12.  To annually [review and update  the  recommendations  of  the
   37  governor's council on the Hudson river valley and] prepare objectives to
   38  advance  each  of  the  five  greenway  criteria:  natural  and cultural
   39  resources protection, regional planning, economic development  including
   40  agriculture  and  urban redevelopment, public access and heritage educa-
   41  tion.
   42    [9] 13.  To review and comment as  an  interested  agency  during  the
   43  environmental  review  process pursuant to article eight of this chapter
   44  on proposed actions within the greenway, and upon the filing of a  draft
   45  environmental  impact  statement for any such action to require the lead
   46  agency to conduct a hearing under article eight of this chapter.
   47    [10] 14.  To review and comment on capital and  long  range  plans  of
   48  state  agencies as they affect the criteria, objectives and plans of the
   49  greenway.
   50    [11] 15.  To review and comment on actions pursuant to section  seven-
   51  ty-five of the public lands law within the greenway for their consisten-
   52  cy  with  the  public's  right  and interest in land under water for the
   53  purposes of navigation and commerce, fishing, bathing, natural  resource
   54  conservation,  recreation  and access to the waters and lands underwater
   55  of the state.
       S. 1409                            78                            A. 2109
 
    1    [12. To review and comment upon the annual work plan submitted by  the
    2  conservancy.
    3    13.]  16.  To intervene in proceedings before state agencies including
    4  the department on matters affecting the Hudson river valley.
    5    17.  To encourage and assist in the creation of special local improve-
    6  ment districts consistent with the purposes of this article.
    7    18.  To identify land and water areas in the Hudson river valley  that
    8  are suited for designation as scenic areas under the provisions of arti-
    9  cle  forty-nine  of  this  chapter  and  for  subsequent  development of
   10  resource management plans.
   11    19.  To provide technical assistance to county  and  local  officials,
   12  landowners   and   interested  organizations  with  regard  to  resource
   13  protection, conservation and management of renewable  natural  resources
   14  and  preservation  methods and techniques, including but not limited to:
   15  natural resource inventories, scenic and  conservation  easements,  deed
   16  restrictions, local land trust, innovative zoning techniques, establish-
   17  ment of heritage areas, historic preservation methods and viewshed anal-
   18  ysis.
   19    20.   To encourage and assist state, county and local governments with
   20  the implementation of procedures for identifying and  designating  crit-
   21  ical  areas  under  the  state  environmental quality review act, and to
   22  provide similar support for utilization of scenic impact project  review
   23  guidelines.
   24    21.   To help to advance, guide and coordinate on a priority basis the
   25  acquisition of land  and  water  areas  possessed  of  scenic,  natural,
   26  historical,  recreational  or  cultural significance, for the purpose of
   27  preserving or enhancing such areas; and to do  so  in  cooperation  with
   28  appropriate public and private agencies.
   29    22.  To support the preparation of comprehensive and systematic inven-
   30  tories and studies of the natural, scenic, historic, cultural and recre-
   31  ational resources of the Hudson river valley and to do so in cooperation
   32  with appropriate public and private agencies.
   33    23.  To provide local governments and the private sector with improved
   34  liaison,  interpretation  and  focus  relative to a variety of state and
   35  federal programs which bear on the Hudson river valley  and  its  shore-
   36  lands,  including  coastal  management;  wild,  scenic  and recreational
   37  rivers; heritage  area;  fisheries  management;  estuarine  sanctuaries;
   38  areas  of  national  concern; historic preservation; tourism and outdoor
   39  recreation; and grants-in-aid.
   40    24.  To help develop and implement a comprehensive program and plan at
   41  the state, county and local levels for resource preservation,  renewable
   42  natural resource management and enhancement in scenic highway corridors.
   43    25.   To promote the greenway as a single, tourism destination site in
   44  conjunction with the designation and development of the greenway trail.
   45    26.  To assist in the preservation of farmlands  within  the  greenway
   46  for continued agricultural use.
   47    27.    Notwithstanding  any  other  section of law, the commission may
   48  exercise its powers within the county of New York only for the  purposes
   49  of  designating, developing, or causing to be developed a trail pursuant
   50  to section 44-0115 of this article. For the purposes  of  this  subdivi-
   51  sion,  "trail"  means  a  linear corridor or pathway, walkway or bikeway
   52  used solely for public transportation  and  recreation.  The  commission
   53  shall not develop, construct or cause to be developed or constructed any
   54  landfill,  pier  or  structure  over  water located west of the existing
   55  bulkhead or shoreline; nor shall the commission  develop,  construct  or
       S. 1409                            79                            A. 2109
 
    1  cause  to be developed or constructed any commercial or residential uses
    2  on any trail developed pursuant to this subdivision.
    3    28.  To [jointly] designate and develop [in agreement with the conser-
    4  vancy] model greenway projects  to  demonstrate  the  implementation  of
    5  greenway  planning  and  make contracts for assistance to municipalities
    6  and nonprofit entities within the greenway therefor.
    7    [14] 29.  To designate multi-county planning districts  or  subregions
    8  based  on  environmental,  economic and social factors linking counties,
    9  cities, towns and villages and the recommendations  of  municipal  offi-
   10  cials  from  such  counties  and  their  political  subdivisions for the
   11  purpose of development of the greenway compact, provided that the  areas
   12  of Bronx and New York counties designated pursuant to section 44-0109 of
   13  this  article shall be deemed to be a multi-county planning district and
   14  region and shall not be linked with any  other  county,  city,  town  or
   15  village in a multi-county planning district or region.
   16    [15]  30.   To make recommendations on expanding the geographical area
   17  of the greenway to include Washington county and the remainder of  Sara-
   18  toga county.
   19    [16]  31.    To  encourage individuals, corporations, associations and
   20  public entities to protect and preserve  the  unique  resources  of  the
   21  greenway and make grants to municipalities and nonprofit entities within
   22  the greenway therefor.
   23    [17]  32.    To  make  available or to cause to make available dispute
   24  resolution services for conflicts over land use regulation between units
   25  of government and/or between interests including development,  conserva-
   26  tion and neighborhood interests upon request of all parties in dispute.
   27    [18]  33.    To  organize and meet with a committee of county planners
   28  within the greenway regarding regional projects  and  the  provision  of
   29  planning services.
   30    [19] 34.  To prepare an annual report on the conduct of its activities
   31  which shall include a recommended budget for the next year to be sent to
   32  the governor and the legislature.
   33    [20]  35.    To  exercise  and perform such other powers and duties as
   34  shall have been or may be from time to time conferred by law.
   35    [21. To utilize the staff and facilities of existing local agencies to
   36  the extent that local agencies make them available.
   37    22.] 36.  To whenever in the opinion of the commission it would be  in
   38  the public interest, after prior approval of the director of the budget,
   39  request  the  temporary  assignment and transfer of certain employees of
   40  any board, commission, agency or department of the state  or  its  poli-
   41  tical subdivisions, and said board, commission, agency or department, if
   42  in  its opinion such transfer will not interfere with the performance of
   43  its duties and functions may make such assignment and transfer  of  said
   44  employees  to  the commission. Such assignment and transfer or extension
   45  thereof shall not in any way affect the civil service status, continuity
   46  of service, retirement plan status,  right  to  compensation,  grade  or
   47  compensation  or  other  rights  or privileges of any employee so trans-
   48  ferred.
   49    37. To carry out all authorities and  duties  imposed  by  the  Hudson
   50  River Valley National Heritage Area Act of 1996, PL - 104 - 333.
   51    38.  To  take any actions necessary to carry out the functions, powers
   52  and duties imposed by this article.
   53    [23] 39.  To purchase the maximum insurance coverage  practicable  and
   54  affordable  from revenues in the fund, to be effective upon the adoption
   55  by a community of a regional plan, from any duly authorized  insurer  in
   56  this  state, against any liability of any participating community or its
       S. 1409                            80                            A. 2109
 
    1  agents that may result from its acquisition of land, consistent with its
    2  regional plan, or the adoption or implementation of any land use control
    3  including, but not limited to, a  zoning  law  or  ordinance;  provided,
    4  however,  such  insurance shall not apply to any such claim that results
    5  from the intentional wrongdoing, recklessness, gross  negligence  or  an
    6  unlawful discriminatory practice as provided in subdivisions two, two-a,
    7  three-b,  four,  paragraphs (a) and (b) of subdivision five and subdivi-
    8  sions six, seven, fourteen and eighteen of section two  hundred  ninety-
    9  six  of the executive law and 42 U.S.C. § § 1981, 1983 by such community
   10  or its agents. Except with respect  to  New  York  city,  the  [council]
   11  commission  shall  purchase  such  insurance and begin coverage upon the
   12  adoption by a community of a regional plan, and maintain such  insurance
   13  for  all  participating  communities.  Nothing  herein shall require the
   14  [council] commission to purchase or provide coverage for New York city.
   15    40.  To enforce that no officer, member or employee of the  commission
   16  shall  receive  or  may  be  lawfully  entitled to receive any pecuniary
   17  profit from the operation thereof except, to the extent  available  from
   18  the  fund,  for  expenses  actually  and necessarily incurred, including
   19  reasonable compensation to employees for services in  effecting  one  or
   20  more of the purposes set forth in this article.
   21    § 5. Section 44-0109 of the environmental conservation law, as amended
   22  by chapter 225 of the laws of 1995, is amended to read as follows:
   23  § 44-0109. Designation.
   24    The  Hudson  river valley greenway is hereby designated to include the
   25  counties, including all cities, towns and villages therein, of Westches-
   26  ter, Rockland, Orange, Putnam, Dutchess, Ulster, Columbia, Greene, Alba-
   27  ny, Rensselaer and in Saratoga county, the town and  village  of  Water-
   28  ford;  provided  the  greenway  shall not include any area of Greene and
   29  Ulster counties within the Catskill park as defined in  subdivision  two
   30  of  section 9-0101 of this chapter. In addition, in the city of New York
   31  the greenway shall include the areas of Bronx and New York counties that
   32  are both adjacent to the Hudson River and included as of  the  effective
   33  date  of  this  section  within the boundaries of such city's waterfront
   34  revitalization program prepared pursuant to  article  forty-two  of  the
   35  executive law. For purposes of the powers and duties of the [council and
   36  conservancy]  commission  regarding the Hudson river valley, such powers
   37  and duties shall be limited to the geographic area of  the  greenway  as
   38  designated in this section.
   39    §  6.  Sections  44-0111,  44-0113,  and  44-0117 of the environmental
   40  conservation law are REPEALED.
   41    § 7. Section 44-0115 of the environmental conservation law,  as  added
   42  by  chapter 748 of the laws of 1991, subdivision 3 as amended by chapter
   43  749 of the laws of 1991 and subdivision 4 as added by chapter 412 of the
   44  laws of 1993, is amended to read as follows:
   45  § [44-0115] 44-0111. State agency reports and consistency.
   46    1. The [council] commission in carrying out its functions and  respon-
   47  sibilities  under this article, shall consult with, cooperate with, and,
   48  to the maximum extent practicable, coordinate its activities with  other
   49  interested state agencies.
   50    2.  The following officers of state agencies with program responsibil-
   51  ities that affect aspects of the greenway  criteria  shall  prepare  and
   52  submit  to  the  [council]  commission  a  program statement which shall
   53  detail actions in the areas of planning,  development,  use,  assistance
   54  and  regulation  that  can support and assist or would conflict with the
   55  establishment and management of the greenway including the  compact  and
   56  development of the trail:
       S. 1409                            81                            A. 2109
 
    1    a.  commissioner of the office of parks, recreation and historic pres-
    2  ervation regarding the state historic preservation  program,  the  state
    3  [urban  cultural  park]  Heritage  Area  program, state parks within the
    4  greenway, outdoor recreation and trail planning;
    5    b.  commissioner  of  economic development regarding the state tourism
    6  program including the identification of  potential  tourism  destination
    7  areas  within  the greenway and recommendations for a system of interac-
    8  tive information outlets throughout  the  greenway  and  the  impact  of
    9  greenway criteria on economic development activities;
   10    c. commissioner of environmental conservation regarding the management
   11  of  natural  resources  including  plants, fish and wildlife and natural
   12  communities and protecting environmental quality;
   13    d. commissioner of transportation regarding access and transportation;
   14    e. secretary of state regarding the coastal  zone  management  program
   15  and other planning programs administered by the department of state;
   16    f.  commissioner  of  the  office  of  general  services regarding the
   17  stewardship and disposition of state property; and
   18    g. the commissioner of agriculture and markets regarding the  contrib-
   19  ution of agricultural activities and programs to greenway criteria.
   20    Each  such  officer  shall  annually review such statements and submit
   21  revisions and updates to the [council] commission as appropriate.
   22    3. After the compact is in effect, any state agency conducting,  fund-
   23  ing or approving activities directly affecting greenway resources shall,
   24  to  the  fullest  extent  practicable, consult with, cooperate with, and
   25  coordinate its activities with the [council] commission and  the  appro-
   26  priate  participating  community. Any such state agency shall conduct or
   27  support such activities in a manner which  is,  to  the  maximum  extent
   28  practicable,  consistent with the compact in addition to requirements of
   29  other laws, including those of article forty-two of the  executive  law.
   30  The  compact  shall  be  incorporated  as part of the reviews of actions
   31  pursuant to the state environmental quality review act  as  provided  in
   32  article  eight of this chapter and the New York state historic preserva-
   33  tion act of 1980. For purposes of section 8-0113 of  this  chapter,  the
   34  commissioner  shall  incorporate  consideration of the greenway in rules
   35  and regulations adopted pursuant to such section. The [council]  commis-
   36  sion  shall review and comment in writing upon the statement and effects
   37  on the greenway program, made pursuant to section 8-0109 of this chapter
   38  and section 14.09 of the parks,  recreation  and  historic  preservation
   39  law.
   40    4.  Nothing  in this article shall preempt the authority and responsi-
   41  bilities of the department pursuant to article eleven of this chapter.
   42    § 8. Section 44-0119 of the environmental conservation law,  as  added
   43  by  chapter  748  of the laws of 1991, subdivisions 1, 2, 8, 9 and 11 as
   44  amended by chapter 412 of the laws of 1993,  subdivisions  3  and  7  as
   45  amended and subdivisions 4-a and 4-b as added by chapter 225 of the laws
   46  of 1995, subdivision 5 as amended and subdivision 10 as added and subdi-
   47  visions  12  and 13 as renumbered by chapter 749 of the laws of 1991, is
   48  amended to read as follows:
   49  § [44-0119] 44-0113. Greenway compact.
   50    1. The [council] commission shall  guide  and  support  a  cooperative
   51  planning  process  to  establish  a voluntary regional compact among the
   52  counties, cities, towns and villages of  the  greenway  to  further  the
   53  recommended  criteria  of  natural  and  cultural  resource  protection,
   54  conservation and management of  renewable  natural  resources,  regional
   55  planning, economic development, public access and heritage education.
       S. 1409                            82                            A. 2109
 
    1    2.  [Initially,  the  council]  The  commission  shall offer technical
    2  assistance [from the conservancy and state agencies]  to  the  riverside
    3  communities  in  attaining  the  goal of establishing and having maximum
    4  effective implementation of local planning and  zoning  through  natural
    5  and  cultural  resources  inventories,  the  adoption of a comprehensive
    6  zoning ordinance or local law, master plan, site  plan  and  subdivision
    7  plat review consistent with the greenway criteria. The [council] commis-
    8  sion  shall also encourage the use of cluster zoning, historic preserva-
    9  tion ordinances, transfer of development rights, conservation easements,
   10  designation of critical environmental areas and other zoning  techniques
   11  where  appropriate to attain local planning and environmental objectives
   12  and participation in the coastal management program and the [state urban
   13  cultural park] state heritage  area  program.    The  [council  and  the
   14  conservancy]  commission  may  [each,  consistent  with their respective
   15  responsibilities as provided in this article,] enter into contracts  not
   16  to  exceed  fifty percent of project cost with riverside communities and
   17  in consultation with appropriate state agencies for purposes of adminis-
   18  trating grants pursuant to this subdivision including, but  not  limited
   19  to,  grants  to  conduct  natural  and  cultural  resources inventories,
   20  prepare or update a master plan,  a  zoning  ordinance,  a  transfer  of
   21  development  rights ordinance, a local government waterfront revitaliza-
   22  tion program, [an urban cultural park] a heritage area feasibility study
   23  or management plan or a tourism development feasibility study  or  plan.
   24  Any  community  which receives a grant pursuant to this subdivision may,
   25  at the discretion  of  the  [council  or  the  conservancy]  commission,
   26  contribute  its  fifty  percent of the project cost in the form of an in
   27  kind or other non-monetary contribution.
   28    3. [Not later than four years after the effective date of  this  arti-
   29  cle,  the  council]  The  commission shall convene meetings of the chief
   30  elected officials of counties,  cities,  towns  and  villages  or  their
   31  designated  representatives for each of the subregional districts desig-
   32  nated by the [council] commission.   Such  officials  in  each  district
   33  shall  organize  to prepare, or cause to be prepared [within twenty-four
   34  months], a comprehensive regional plan for their district to be  submit-
   35  ted  to  the  [council] commission.   The [conservancy] commission shall
   36  offer technical assistance in preparation of such plans  and  amendments
   37  thereof. Within funds available therefor, the [council] commission shall
   38  grant funds to meet the cost of each regional plan and amendments there-
   39  of.  Each such regional plan shall address the greenway criteria and the
   40  objectives adopted by the [council] commission by provisions  including,
   41  but  not  limited  to,  identifying  developments of regional impact and
   42  areas of regional concern including,  but  not  limited  to  identifying
   43  necessary  public  facilities  and  infrastructure  consistent with such
   44  criteria and objectives and providing  for  the  voluntary  adoption  by
   45  action  of  a  local  legislative  body  and  implementation of relevant
   46  provisions by each participating county, city,  town  and  village.  The
   47  [council] commission shall review each regional plan for its consistency
   48  with  the  greenway  criteria  and  objectives  and  to  assure that the
   49  regional plans conform to establish an overall  greenway  compact.  Upon
   50  finding such consistency and conformance, the [council] commission shall
   51  approve  the  regional  plan and, upon approving all the regional plans,
   52  shall produce an overall greenway plan to be known as  the  compact.  If
   53  the  local officials in any district fail to produce a regional plan for
   54  their district or submit such plan which the [council] commission cannot
   55  approve, the [council] commission may prepare or cause to be prepared  a
   56  district  plan  which  cities,  towns  and villages in such district may
       S. 1409                            83                            A. 2109
 
    1  voluntarily adopt by local law to become participating communities.  The
    2  [council's]  commission's  actions  shall  not  be inconsistent with the
    3  requirements of article forty-two of the executive law in approving  any
    4  regional plan.
    5    4.  Upon approval by the [council] commission of a regional plan, each
    6  county, city, town or village within the district for which the plan was
    7  prepared and which adopted the plan by its local legislative body  shall
    8  become a participating community in the greenway compact by adopting the
    9  regional plan as provided in such plan.
   10    4-a. Notwithstanding any other provision of this article, the mayor of
   11  the city of New York may submit those portions of such city's waterfront
   12  revitalization  program,  prepared  pursuant to article forty-two of the
   13  executive law and adopted through  the  process  for  the  adoption  and
   14  amendment  of  plans  contained  in  the  charter  of such city, as such
   15  program applies to areas within the greenway, as the regional  plan  for
   16  the  region comprised of the areas of Bronx and New York counties desig-
   17  nated pursuant to section 44-0109 of this article.   The mayor  of  such
   18  city  may  submit  amendments  to such regional plan adopted through the
   19  process for the adoption and amendment of plans contained in the charter
   20  of such city. Any such plan or amendment thereof submitted  pursuant  to
   21  this  subdivision shall be deemed to have been approved pursuant to this
   22  section and, upon submission of such plan, the areas of the city of  New
   23  York  designated  pursuant  to section 44-0109 of this article and which
   24  are also included within such plan shall be deemed to be a participating
   25  community and, unless otherwise specified, the mayor of such city  shall
   26  exercise  the  authority granted to such participating community. Solely
   27  for purposes of subdivision five of this section the plan  submitted  by
   28  the city of New York pursuant to this section and any amendments thereto
   29  shall not be deemed a generic environmental impact statement or regional
   30  plan.
   31    4-b.  Nothing  contained  in  this  article shall be deemed to affect,
   32  impair or supersede the provisions of any city charter, local law,  rule
   33  or  other  local  requirements  and  procedures  heretofore or hereafter
   34  adopted, including, but not limited to, any such provisions relating  to
   35  the zoning and use of land.
   36    5.  A regional plan prepared consistent with the procedures of section
   37  8-0109 of this chapter relating to the preparation and  contents  of  an
   38  environmental  impact  statement  shall be considered a generic environ-
   39  mental impact statement. Actions proposed in conformance with the condi-
   40  tions and thresholds established in such regional plan will  require  no
   41  further compliance with article eight of this chapter.
   42    6.  Notwithstanding  any  other provision of law, any state agency may
   43  provide in implementing  a  ranking  system  for  allocating  funds  for
   44  infrastructure,  land  acquisition or park assistance projects a prefer-
   45  ence not to exceed the equivalent of an advantage of  five  percent  for
   46  such  projects which are identified in a regional plan approved pursuant
   47  to this section.
   48    7. For each such participating community there shall be indemnity from
   49  the state in the event of legal actions brought against the community or
   50  its agents that may result from  the  community's  acquisition  of  land
   51  consistent  with  its regional plan or the adoption or implementation of
   52  any land use control including, but not limited  to,  a  zoning  law  or
   53  ordinance.  Such  indemnity  shall not apply to the counties of New York
   54  and Bronx for such legal actions brought as a result of New York  City's
   55  adoption  of  a regional plan or amendments thereto pursuant to subdivi-
   56  sion four-a of this section. Such indemnity shall apply  to  the  extent
       S. 1409                            84                            A. 2109
 
    1  that  any  such  claim  exceeds  the  insurance coverage obtained by the
    2  [council] commission pursuant to subdivision [twenty-three]  thirty-nine
    3  of  section  44-0107  of this article; provided, however, such indemnity
    4  shall not apply to any such claim that results from intentional wrongdo-
    5  ing,  recklessness, gross negligence or an unlawful discriminatory prac-
    6  tice as provided in subdivisions two, two-a, three-b,  four,  paragraphs
    7  (a)  and  (b)  of subdivision five and subdivisions six, seven, fourteen
    8  and eighteen of section two hundred ninety-six of the executive law  and
    9  42  U.S.C.  § § 1981, 1983 by such community or its agents. In any claim
   10  against a participating community of unlawful  discriminatory  practice,
   11  the  attorney  general  shall not represent the defendant or defendants;
   12  provided, however, that if the plaintiff is not  the  prevailing  party,
   13  the  defendant  or  defendants  shall be reimbursed by the state for all
   14  reasonable attorneys' fees  and  litigation  expenses  incurred  in  the
   15  defense of the action.
   16    8.  Pursuant  to  a  chapter  of  the  laws of New York to be enacted,
   17  authority shall be granted for a community to utilize  other  innovative
   18  zoning techniques in carrying out the compact.
   19    9.  In  addition  to any other funds available from the state, partic-
   20  ipating communities and nonprofit entities designated by  such  communi-
   21  ties shall be eligible for capital, program and planning matching grants
   22  from  the  [council  and  the conservancy] commission including, but not
   23  limited to  grants  for  municipal  historic  preservation  projects  to
   24  acquire,  restore  or  rehabilitate  property  listed  on  the  state or
   25  national registers  of  historic  places  or  for  educational  programs
   26  related  to such historic places, municipal park projects for the acqui-
   27  sition, development or improvement of  recreational  facilities  or  the
   28  acquisition of land for open space conservation and management of renew-
   29  able  natural  resources  and  natural resource protection including the
   30  preservation of endangered species and their natural communities, water-
   31  front revitalization projects to acquire land for public access  to  the
   32  Hudson  river or to protect river resources or to clear waterfront sites
   33  for public or private water dependent uses or  to  develop,  improve  or
   34  rehabilitate  water  dependent or waterfront facilities including wharfs
   35  and piers, consistent with a local  waterfront  revitalization  program,
   36  [urban  cultural  park]  Heritage  Area  projects for planning, program,
   37  acquisition or development consistent with the purposes of article thir-
   38  ty-five of the parks, recreation and historic preservation law,  tourism
   39  marketing projects, development and commercial revitalization and commu-
   40  nity  development  programs and projects, natural resources inventories,
   41  agriculture preservation projects and public and private  infrastructure
   42  improvement related to the development of the greenway trail, from money
   43  appropriated from the Hudson river valley greenway fund. The state share
   44  of the cost of such projects shall not exceed fifty percent of the total
   45  project  cost. Such grants shall be made by the [council and the conser-
   46  vancy] commission consistent with [their  respective]  its  responsibil-
   47  ities as provided in this article. The [council and conservancy] commis-
   48  sion  shall  enter  into contracts with participating communities and in
   49  consultation with appropriate state agencies for the purpose of adminis-
   50  tering these grants.
   51    10. The [council and conservancy] commission shall create a  committee
   52  comprised  of  three members [from each] who shall establish a procedure
   53  by which other grants not delineated herein, which are  consistent  with
   54  the greenway criteria, shall be made.
   55    11. Notwithstanding any other provision of law, participating communi-
   56  ties shall be eligible to take part in and receive grants and loans from
       S. 1409                            85                            A. 2109
 
    1  the  urban  development  corporation's  urban  and community development
    2  program and regional economic development program.
    3    12.  The  [council]  commission may, after holding a public hearing in
    4  the appropriate district, withdraw its approval of a regional plan where
    5  it finds that there has been a significant  failure  to  implement  such
    6  plan  by  a  majority  of  the participating counties, cities, towns and
    7  villages within the district. When approval has been  withdrawn  from  a
    8  regional  plan,  the  communities  therein  may not have the benefits of
    9  participating communities pursuant to subdivisions five through nine  of
   10  this  section.  The [council] commission shall report such withdrawal of
   11  approval to the governor and the legislature  stating  the  reasons  for
   12  such  action  consistent  with  subdivisions  one  through  six  of this
   13  section.
   14    13. The [council] commission  may  promulgate  rules  and  regulations
   15  providing for maintaining and updating the compact.
   16    §  9.  Section 44-0121 of the environmental conservation law, as added
   17  by chapter 748 of the laws of 1991 and the opening paragraph of subdivi-
   18  sion 1 as amended by chapter 225 of the laws of 1995, is amended to read
   19  as follows:
   20  § [44-0121] 44-0115. Greenway trail.
   21    1. The [conservancy] commission shall designate and develop  or  cause
   22  to  be  developed a trail or pathway system consistent with the greenway
   23  criteria connecting the city of New York from the southernmost  boundary
   24  of  the  area designated as the greenway to the Erie canal lock two park
   25  in the town of Waterford, Saratoga county to  be  known  as  the  Hudson
   26  river  valley  greenway  trail.  To  the fullest extent practicable, the
   27  trail shall:
   28    a. be located with direct physical or, if not physical, visual  access
   29  to the Hudson river;
   30    b. be planned for both sides of the Hudson river;
   31    c. have segments that can be restricted to non-motorized use;
   32    d.  utilize existing heritage trails, bikeways, scenic highways, rail-
   33  road rights of way and esplanades and make connections with other trails
   34  including trails along tributaries of the Hudson river;
   35    e. highlight and link existing parks, [urban cultural parks]  heritage
   36  areas and historic sites;
   37    f.  provide  for  interpretive signage and opportunities to experience
   38  the unique natural and cultural heritage of the valley;
   39    g. reflect the natural and cultural diversity;
   40    h. involve state and local agencies and private organizations  in  the
   41  planning, development and maintenance of the trail of the greenway;
   42    i.  use the services of local school districts and the youth conserva-
   43  tion corps to participate in trail development and maintenance;
   44    j. have segment management plans prepared  for  each  segment  of  the
   45  trail to assure uniform maintenance and upkeep; and
   46    k.  have  connections  to  pathways  that  highlight the character and
   47  resources of the countryside communities.
   48    2. The greenway trail to the extent practicable shall be completed  on
   49  or  before June first, two thousand five[; provided that the conservancy
   50  shall submit a plan for the trail to the governor and legislature within
   51  twenty-four months of the effective date of this section  and  shall  to
   52  the  extent  practicable  dedicate  and open significant sections of the
   53  trail on or before June first, two  thousand.  Planning  for  the  trail
   54  shall  commence with the council and the conservancy sponsoring a Hudson
   55  river valley greenway trail symposium to prepare a plan  of  action  for
   56  the  planning  and  development  of  the trail. Representatives of local
       S. 1409                            86                            A. 2109
 
    1  governments in the greenway, interested nonprofit organizations,  repre-
    2  sentatives  of  the state and federal government, planners and landscape
    3  architects along with any other interested parties shall be  invited  to
    4  participate in the symposium].
    5    3.  The  department  and  the office of parks, recreation and historic
    6  preservation, the department of transportation and the office of general
    7  services are hereby authorized and directed to support and assist in the
    8  planning and development of the trail.
    9    § 10. The environmental conservation law is amended  by  adding  eight
   10  new  sections  44-0117,  44-0119,  44-0121,  44-0123,  44-0125, 44-0127,
   11  44-0129 and 44-0131 to read as follows:
   12  § 44-0117. Transfer of assets and liabilities.
   13    All assets and liabilities of the Hudson river valley greenway  commu-
   14  nities  council  and  the  greenway  heritage conservancy for the Hudson
   15  river valley are hereby transferred to and assumed by the commission.
   16  § 44-0119. Transfer of records.
   17    All books, papers, records and property pertaining to the Hudson river
   18  valley greenway communities council and the greenway heritage conservan-
   19  cy for the Hudson river valley shall be transferred to and maintained by
   20  the commission.
   21  § 44-0121. Completion of unfinished business.
   22    Any business or other matter undertaken or  commenced  by  the  Hudson
   23  river  valley  greenway  communities  council  and the greenway heritage
   24  conservancy for the Hudson river valley pertaining to or connected  with
   25  their  functions,  powers,  obligations  and  duties may be conducted or
   26  completed by the commission.
   27  § 44-0123. Terms occurring in laws, contracts or other documents.
   28    Whenever the functions, powers, obligations and duties of  the  Hudson
   29  river  valley  greenway  communities  council  and the greenway heritage
   30  conservancy for the Hudson river valley which  are  transferred  to  the
   31  commission  are  referred to or designated in any law, contract or docu-
   32  ment such reference or designation shall  be  deemed  to  refer  to  the
   33  commission.
   34  § 44-0125. Existing rights and remedies preserved.
   35    No  existing  right or remedy of the state, including the Hudson river
   36  valley greenway communities council and the greenway heritage conservan-
   37  cy for the Hudson river valley, shall be lost, impaired or  affected  by
   38  reason of this article.
   39  § 44-0127. Pending actions and proceedings.
   40    No action or proceeding pending on the effective date of this article,
   41  brought by or against the Hudson river valley greenway communities coun-
   42  cil and the greenway heritage conservancy for the Hudson river valley or
   43  executive  officer  thereof  shall  be affected by any provision of this
   44  article, but the same may be prosecuted or defended in the name  of  the
   45  commission   or   its   executive  officer.  In  all  such  actions  and
   46  proceedings, the commission, upon application to  the  court,  shall  be
   47  substituted as a party.
   48  § 44-0129. Continuance of rules and regulations.
   49    All rules and regulations of the Hudson river valley greenway communi-
   50  ties  council and the greenway heritage conservancy for the Hudson river
   51  valley, pertaining to the functions transferred  and  assigned  by  this
   52  article to the commission in force at the time of such transfer, assign-
   53  ment,  assumption  or  devolution  shall continue in force and effect as
   54  rules, regulations, acts, determinations and decisions of the commission
   55  until duly modified or repealed.
       S. 1409                            87                            A. 2109
 
    1  § 44-0131. Transfer of appropriations  heretofore  made  to  the  Hudson
    2               river  valley greenway communities council and the greenway
    3               heritage conservancy for the Hudson river valley.
    4    All  appropriations  and  reappropriations  which shall have been made
    5  available to the Hudson river valley greenway  communities  council  and
    6  the  greenway heritage conservancy for the Hudson river valley or segre-
    7  gated pursuant to law, to the extent of remaining unexpected or unencum-
    8  bered balances thereof, whether allocated  or  unallocated  and  whether
    9  obligated or unobligated, shall be transferred to and made available for
   10  use  and  expenditure  by  the commission of the same purposes for which
   11  originally appropriated or reappropriated and shall be payable on vouch-
   12  ers certified or approved by the commissioner of taxation  and  finance,
   13  on  audit  and  warrant  of the comptroller. Payments of liabilities for
   14  expenses of personal service, maintenance and operation which shall have
   15  been incurred as of the date of such operations which  shall  have  been
   16  incurred  as  of the date of such transfer, and for liabilities incurred
   17  and to be incurred in completing its  affairs  shall  also  be  made  on
   18  vouchers  certified  or approved by the executive officer of the commis-
   19  sion, on audit and warrant of the comptroller.
   20    § 11. Section 285-b of the agriculture and markets law,  as  added  by
   21  chapter 748 of the laws of 1991, subdivision 1 as amended by chapter 412
   22  of  the laws of 1993 and subdivisions 2 and 3 as amended by section 2 of
   23  part Z of chapter 383 of the  laws  of  2001,  is  amended  to  read  as
   24  follows:
   25    § 285-b. Hudson  valley  agricultural  advisory council. 1. The Hudson
   26  valley agricultural advisory council shall be appointed by  the  commis-
   27  sioner,  and  composed  of  representatives  from  consumer and producer
   28  organizations, county governments, conservation organizations and  tour-
   29  ism  organizations of the Hudson valley region. For the purposes of this
   30  section, the term "Hudson valley" shall mean  the  counties  of  Albany,
   31  Greene, Ulster, Orange, Rockland, Rensselaer, Columbia, Dutchess, Putnam
   32  and  Westchester. The membership of the council shall consist of no more
   33  than eleven persons, who shall be residents of the  Hudson  valley,  and
   34  who  shall  meet  at  least  three times annually. Council members shall
   35  serve without pay but shall be reimbursed for  allowable  and  necessary
   36  travel expenses.
   37    2.  The advisory council, in consultation with the Hudson river valley
   38  greenway [communities council] commission, the upstate New York  tourism
   39  council  and  the  downstate  New  York  tourism  council, may recommend
   40  programs and promotional activities designed  to  preserve  and  enhance
   41  Hudson valley region tourism and agricultural open space, address issues
   42  affecting the viability of agriculture including real property tax poli-
   43  cies and promote greater agricultural marketing and promotional opportu-
   44  nities for the region's agricultural producers to the department.
   45    3. From time to time, but at least every two years, the advisory coun-
   46  cil shall issue a report evaluating such programs and promotional activ-
   47  ities  to  be  transmitted  to  the commissioner, the chairperson of the
   48  Hudson river  valley  greenway  [communities  council]  commission,  the
   49  chairperson of the upstate New York tourism council, and the chairperson
   50  of  the  downstate New York tourism council and, upon request, any other
   51  interested party.  The advisory council shall also do all  other  things
   52  necessary and proper for the completion of a feasibility study of devel-
   53  oping  a  tour of the Hudson valley to be known as "The Hudson Valley Ag
   54  Trail" to highlight the unique and significant agricultural and  natural
   55  resources of the Hudson valley region.
       S. 1409                            88                            A. 2109
 
    1    §  12.  Section 97-n of the state finance law, as added by chapter 748
    2  of the laws of 1991, and subdivision 3 as amended by chapter 170 of  the
    3  laws of 1994, is amended to read as follows:
    4    §  97-n.  Hudson river valley greenway fund. 1. There is hereby estab-
    5  lished in the joint custody of the state comptroller and the commission-
    6  er of taxation and finance a special revenue fund to  be  known  as  the
    7  Hudson river valley greenway fund.
    8    2. [The comptroller shall establish two separate and distinct accounts
    9  within  the  fund:    the  greenway  communities council account and the
   10  greenway heritage conservancy account.
   11    3.] Such fund shall consist of all moneys appropriated for the purpose
   12  of such fund and all moneys transferred to such fund  pursuant  to  law.
   13  Any  interest  earned  by the investment of moneys in such fund shall be
   14  added to such fund, become a part of such fund,  and  be  used  for  the
   15  purpose of such fund.
   16    [4.]  3.  Moneys of such fund shall be available for appropriation and
   17  allocation only to the Hudson river valley greenway [communities council
   18  and the greenway  heritage  conservancy  of  the  Hudson  river  valley]
   19  commission  for  the  purposes of carrying out the provisions of article
   20  forty-four of the environmental conservation law.
   21    [5.] 4. The moneys of the fund shall be paid  out  on  the  audit  and
   22  warrant  of  the  comptroller  on  vouchers certified or approved by the
   23  [chairman] chairperson of the Hudson river valley greenway  [communities
   24  council or his duly designated representative from the greenway communi-
   25  ties  council  account  and  by  the  chairman  of the greenway heritage
   26  conservancy from the greenway heritage conservancy  account]  commission
   27  or his or her duly designated representative.
   28    [6.]  5. Notwithstanding the provisions of any general or special law,
   29  no moneys shall be available from the fund until a certificate of  allo-
   30  cation  and  a  schedule  of amounts to be available therefor shall have
   31  been issued by the director of the budget, and a copy  of  such  certif-
   32  icate  filed  with the comptroller. Such certificate may be amended from
   33  time to time by the director of the budget  and  a  copy  of  each  such
   34  amendment shall be filed with the comptroller.
   35    §  13.  Subdivision 1 of section 349-cc of the highway law, as amended
   36  by section 6 of part Z of chapter 383 of the laws of 2001, is amended to
   37  read as follows:
   38    1. An advisory board of state agencies with  responsibilities  related
   39  to  the  designation  and management of scenic byways and not-for-profit
   40  organizations related to the promotion and development of scenic  byways
   41  is hereby formed to advise and assist the department in the operation of
   42  its  scenic  byways  program.  The  advisory  board shall consist of the
   43  secretary of state, and the commissioners of the department of  agricul-
   44  ture  and  markets,  the  department  of  economic  development, and the
   45  department of environmental  conservation,  and  the  office  of  parks,
   46  recreation  and historic preservation or their duly designated represen-
   47  tatives. The commissioner shall appoint as members of the advisory board
   48  the chief executive officer, or his or  her  duly  authorized  represen-
   49  tative,  of  not-for-profit  organizations  related to the promotion and
   50  development of a scenic byway designated pursuant to this article, three
   51  representatives of organizations  concerned  with  the  preservation  of
   52  scenic  qualities,  the  motoring  public  and  tourism  development and
   53  members or representatives of the upstate New York tourism  council  and
   54  of  the  downstate New York tourism council. The commissioner, or his or
   55  her duly designated representative, shall serve as chair. Members of the
   56  advisory board shall receive no pay, but shall be  eligible  to  receive
       S. 1409                            89                            A. 2109
 
    1  actual and necessary expenses from their respective agencies, or for the
    2  expenses  of  representatives  of organizations related to the promotion
    3  and development of a scenic byway, the preservation of scenic qualities,
    4  the  motoring  public  and tourism development, from the department. The
    5  advisory board shall consult with the Adirondack Park  Agency  regarding
    6  scenic  byways within the Adirondack Park. The advisory board shall also
    7  consult with the Hudson  River  Valley  [Communities  Council]  greenway
    8  commission regarding scenic byways within the Hudson River Valley Green-
    9  way  as  defined in article forty-four of the environmental conservation
   10  law. The advisory board shall consult with the upstate New York  tourism
   11  council regarding scenic byways in the upstate New York region, and with
   12  the  downstate  New  York tourism council regarding scenic byways in the
   13  downstate New York region.
   14    § 14. Paragraph (g) of subdivision 1 of section 17 of the public offi-
   15  cers law, as amended by chapter 749 of the laws of 1991, is  amended  to
   16  read as follows:
   17    (g)  For  the  purposes  of  this  section,  the term "employee" shall
   18  include the members of the board, officers and employees of the  [green-
   19  way  heritage  conservancy  for  the Hudson river valley or the greenway
   20  council] Hudson river valley greenway commission.
   21    § 15. This act shall take effect April  1,  2003;  provided,  however,
   22  that the amendment made to subdivision 7 of section 44-0119 of the envi-
   23  ronmental conservation law by section eight of this act shall not affect
   24  the repeal of such subdivision and shall be deemed repealed therewith.
 
   25                                   PART AA
 
   26    Section  1.  The section  heading of section 213 of the civil practice
   27  law and rules, as amended by chapter 43 of the laws of 1975, is  amended
   28  and two new subdivisions 9 and 10 are added to read as follows:
   29    Actions to be commenced within six years: where not otherwise provided
   30  for;  on  contract;  on sealed instrument; on bond or note, and mortgage
   31  upon real property; by state based on misappropriation of public proper-
   32  ty; based on mistake; by corporation against director, officer or stock-
   33  holder; based on fraud; by state based on claims pursuant to subdivision
   34  ten of section  27-1313  of  the  environmental  conservation  law;  for
   35  contribution  pursuant  to  subdivision eleven of section 27-1313 of the
   36  environmental conservation law.
   37    9. an action by the  state  under  authority  of  subdivision  ten  of
   38  section  27-1313  of the environmental conservation law; the time within
   39  which the action must be commenced shall be computed from the initiation
   40  of physical on-site construction of the remedial program.
   41    10. an action for contribution under authority of  subdivision  eleven
   42  of section 27-1313 of the environmental conservation law; the time with-
   43  in  which such action must be commenced shall be computed from the later
   44  of:
   45    a. the date of judgment in any action under any law, state or federal,
   46  respecting the costs that are the subject of the claim for contribution;
   47  or
   48    b. the date of the issuance of an order or agreement by the department
   49  of environmental conservation respecting the costs that are the  subject
   50  of  the  claim  for contribution or respecting activities the conduct of
   51  which caused  the expenditure of the costs that are the subject  of  the
   52  claim for contribution.
   53    §  2.  Section 3-0305 of the environmental conservation law is amended
   54  by adding a new subdivision 2-a to read as follows:
       S. 1409                            90                            A. 2109
 
    1    2-a. Any other provision of law to the contrary  notwithstanding,  the
    2  commissioner  may  acquire  an "environmental easement", as such term is
    3  defined in section 71-3603 of this  chapter,  only  on  consent,  or  as
    4  provided  for  in  the  eminent  domain procedure law but only after the
    5  department  shall  have  exercised  reasonable  efforts  to  obtain such
    6  consent.
    7    § 3. Subdivision 2 of section 17-1009 of the  environmental  conserva-
    8  tion law, as amended by section 1 of chapter 442 of the laws of 2001, is
    9  amended to read as follows:
   10    2.  All  owners  shall  register the facility with the department. The
   11  department is authorized to assess a fee according to a  schedule  based
   12  on  the  size  and  type  of  facility, not to exceed [two] five hundred
   13  [fifty] dollars per facility. Such fee shall be  paid  at  the  time  of
   14  registration  or  registration  renewal.  Registration  shall be renewed
   15  every five years or whenever title to a facility is transferred,  which-
   16  ever  occurs  first.   In addition to such registration requirements and
   17  pursuant to leak detection requirements set forth in section 17-1005  of
   18  this  title,  notwithstanding  any other provision of law, rule or regu-
   19  lation, the department shall duly  notify  the  facility  owner  of  the
   20  requirement  for  such owner to perform the required tightness test on a
   21  petroleum bulk storage tank no less than forty-five days  prior  to  the
   22  date  of the test expiration on the tank. All fees collected pursuant to
   23  this subdivision shall  be  deposited  in  the  New  York  environmental
   24  protection  and  spill compensation fund established pursuant to section
   25  one hundred seventy-nine of the navigation  law[.];  provided,  however,
   26  that  such fees shall be deposited in the remedial program transfer fund
   27  in the fiscal year beginning April first, two thousand  three,  and  for
   28  each  fiscal  year thereafter. The owner must submit, with each applica-
   29  tion for registration  or  registration  renewal,  a  five-year  fee  as
   30  follows:
   31  Combined Storage Capacity at Facility              5-Year Fee
   32  Greater than 1,000 to 2,000 gallons                $100 per facility
   33  Greater than 2,000 gallons to                      $300 per facility
   34  less than 5,000 gallons
   35  5,000 gallons to less than
   36  400,000 gallons                                    $500 per facility
   37    The department may waive payment of the registration fee for a facili-
   38  ty  at  which the tanks are to be removed or otherwise permanently taken
   39  out of service and the facility is the subject of:
   40    (a) An "environmental restoration project", as such term is defined in
   41  subdivision seven of section 56-0101 of this chapter, implemented  by  a
   42  municipality, the cost of which is payable in part by the state pursuant
   43  to a contract authorized by section 56-0503 of this chapter;
   44    (b)  An  "inactive hazardous waste disposal site remedial program", as
   45  such term is defined in subdivision three of  section  27-1301  of  this
   46  chapter, implemented by the department, the cost of which is paid by the
   47  state according to statute;
   48    (c)  A  "hazardous  waste  site  remediation project", as such term is
   49  defined in subdivision nine of section 52-0101 of this  chapter,  imple-
   50  mented  by  a  municipality, the cost of which is payable in part by the
   51  state pursuant to a contract authorized by section 52-0303 of this chap-
   52  ter;
   53    (d) Any remediation implemented pursuant to an order or agreement with
   54  the department by any person who is not responsible for the disposal  of
   55  hazardous  waste  or  the discharge of petroleum according to applicable
   56  principles of statutory or common law liability, or who is liable solely
       S. 1409                            91                            A. 2109
 
    1  as a result of ownership or operation of the facility subsequent to  the
    2  disposal of hazardous waste or the discharge of petroleum; or
    3    (e)  Any "cleanup and removal", as such term is defined in subdivision
    4  four of section one hundred seventy-two of the  navigation  law,  imple-
    5  mented by the department, the cost of which is paid by the state accord-
    6  ing to statute.
    7    § 4. Subdivision 3 and paragraph b of subdivision 4 of section 27-0923
    8  of  the  environmental  conservation  law, as added by chapter 38 of the
    9  laws of 1985, paragraph d of subdivision 3 as added by  chapter  512  of
   10  the  laws  of  1986 and paragraph e of subdivision 3 as added by chapter
   11  423 of the laws of 1990, are amended to read as follows:
   12    3. a. Notwithstanding any provision of this section to  the  contrary,
   13  no  special  assessment  shall  be  imposed  under  this  section on the
   14  resource recovery of any hazardous waste; provided,  however,  that  any
   15  materials  remaining  from  resource recovery which are hazardous wastes
   16  and which are subsequently disposed of, treated, or incinerated[,] shall
   17  be subject to the special  assessments  imposed  by  this  section.  For
   18  purposes  of  this  section,  resource  recovery  shall  not include the
   19  removal of water from a hazardous waste.
   20    b. In the case of a fraction of a ton, the special assessments imposed
   21  by this section shall be the same fraction of the amount of such special
   22  assessment imposed on a whole ton.
   23    c. For the purpose of this  section,  generation  of  hazardous  waste
   24  shall not include retrieval or creation of hazardous waste which must be
   25  disposed  of [due to remediation of an inactive hazardous waste disposal
   26  site in New York state as defined in section 27-1301  of  this  chapter]
   27  under  an  order  of  or agreement with the department pursuant to title
   28  thirteen or title fourteen of this article or under a contract with  the
   29  department pursuant to title five of article fifty-six of this chapter.
   30    d.  No  portion  of the special assessments collected pursuant to this
   31  section shall be used for any purpose if such use,  under  federal  law,
   32  would preclude the collection of such special assessment.
   33    e.  Notwithstanding any provision of this section to the contrary, the
   34  actual method utilized to dispose of or treat any hazardous waste  shall
   35  govern  the  determination  of  the  rate  per  ton applicable under the
   36  special assessments imposed by this  section,  even  if  such  hazardous
   37  waste  was  designated  for  removal,  removed,  stored, or received for
   38  disposal or treatment by a method different  than  the  method  actually
   39  utilized.  Where any such special assessment with respect to any hazard-
   40  ous waste is reported and paid on the basis of a rate per ton  which  is
   41  greater  than  the rate per ton applicable to the actual method utilized
   42  to dispose of or treat such hazardous waste, the difference between  the
   43  amount  reported  and  paid  and  the  amount due using the rate per ton
   44  applicable to the actual method utilized shall be considered an overpay-
   45  ment of such  special  assessment.  The  commissioner  of  taxation  and
   46  finance  shall  credit or refund such overpayment in the manner provided
   47  and subject to the conditions contained in article twenty-seven  of  the
   48  tax law, as incorporated by subdivision six of this section.
   49    b.  All moneys collected or received by the department of taxation and
   50  finance pursuant to this section shall be deposited daily to the  credit
   51  of the comptroller with such responsible banks, banking houses, or trust
   52  companies  as  may be designated by the comptroller. Such deposits shall
   53  be kept separate and apart from all other moneys in  the  possession  of
   54  the  comptroller.  The  comptroller shall require adequate security from
   55  all such depositories. Of the revenues collected under this section, the
   56  comptroller shall retain in his or her hands such amounts as the commis-
       S. 1409                            92                            A. 2109
 
    1  sioner of taxation and finance may determine to be necessary for refunds
    2  under this section and the comptroller shall pay any  refunds  to  which
    3  those  liable  for  special  assessments  shall  be  entitled  under the
    4  provisions  of this section. The comptroller, after reserving the amount
    5  to pay such refunds, shall, on or before the tenth day  of  each  month,
    6  pay  all  special  assessments,  interest, and penalties collected under
    7  this section and remaining to his or her credit in such  banks,  banking
    8  houses,  or  trust companies at the close of business on the last day of
    9  the preceding month into the [hazardous waste] remedial program transfer
   10  fund created pursuant to section [ninety-seven-b]  ninety-seven-cccc  of
   11  the state finance law. Within thirty days after each quarterly reporting
   12  date,  the  comptroller  shall certify the amount of special assessments
   13  under this section deposited in the [hazardous waste]  remedial  program
   14  transfer  fund  during  the  preceding quarter and the cumulative amount
   15  collected since the start of the current calendar year, and shall submit
   16  such certification to the governor and the [chairman] chairperson of the
   17  senate finance committee and the [chairman] chairperson of the  assembly
   18  ways and means committee.
   19    §  5.  Subdivisions 1, 3 and 4 of section 27-1301 of the environmental
   20  conservation law, subdivision 1 as amended by chapter 857 of the laws of
   21  1982 and subdivisions 3 and 4 as added by chapter 282  of  the  laws  of
   22  1979, are amended and a new subdivision 8 is added to read as follows:
   23    1. "Hazardous waste" means a waste which appears on the list or satis-
   24  fies  the  characteristics  promulgated  by the commissioner pursuant to
   25  section 27-0903 of this [chapter and, until, but not after, the  promul-
   26  gation  of such list, a waste or combination of wastes, which because of
   27  its quantity, concentration, or physical, chemical or infectious charac-
   28  teristics may:
   29    a. Cause, or significantly contribute to an increase in  mortality  or
   30  an   increase  in  serious  irreversible  or  incapacitating  reversible
   31  illness; or
   32    b. Pose a substantial present or potential hazard to human  health  or
   33  the  environment  when improperly treated, stored, transported, disposed
   34  or otherwise managed] article and any substance  which  appears  on  the
   35  list  promulgated pursuant to section 37-0103 of this chapter; provided,
   36  however, that the term "hazardous waste" does not include:
   37    a. Natural gas, natural gas liquids, liquefied natural gas,  synthetic
   38  gas  usable for fuel, or mixtures of natural gas and such synthetic gas;
   39  nor
   40    b. The residue of emissions from the engine exhaust of a  motor  vehi-
   41  cle,  rolling  stock,  aircraft,  vessel,  or  pipeline  pumping station
   42  engine; nor
   43    c. Source, byproduct, or special nuclear material from a nuclear inci-
   44  dent, as those terms are defined in the Atomic Energy Act  of  1954,  if
   45  such  release  is  subject  to  requirements  with  respect to financial
   46  protection established under section 170 of such act  (42  U.S.C.  2210)
   47  or,  for  the  purpose of section 104 of the comprehensive environmental
   48  response, compensation and liability act of 1980 (42  U.S.C.  9604),  or
   49  any  other  response  action,  any source, byproduct, or special nuclear
   50  material from any processing site designated under section 102(a)(1)  or
   51  302(a)  of  the  Uranium Mill Tailings Radiation Control Act of 1978 (42
   52  U.S.C. 7912(a)(1) or 7942(a)); nor
   53    d. Petroleum as defined in section  one  hundred  seventy-two  of  the
   54  navigation  law,  even  if appearing on the list promulgated pursuant to
   55  section 37-0103 of this chapter.
       S. 1409                            93                            A. 2109
 
    1    3. "Inactive hazardous waste disposal  site  remedial  program"  means
    2  activities  undertaken  to eliminate, remove, abate, control, or monitor
    3  health and/or environmental hazards or potential hazards  in  connection
    4  with  inactive  hazardous waste disposal sites or to treat or dispose of
    5  wastes  and  waste contaminated materials from such sites including, but
    6  not limited to, grading, contouring, trenching, grouting, capping, exca-
    7  vation,  transporting,  incineration,  chemical  treatment,   biological
    8  treatment,  or construction of leachate collection and treatment facili-
    9  ties.  The department may include institutional  controls  and/or  engi-
   10  neering  controls  as components of an inactive hazardous waste disposal
   11  site remedial program, but only if the owner of such real property annu-
   12  ally submits to the department a  written  statement  by  an  individual
   13  licensed  or otherwise authorized in accordance with article one hundred
   14  forty-five of the education law to practice the profession of  engineer-
   15  ing,  or  by  such  other  expert as the department may find acceptable,
   16  certifying under penalty of perjury that the institutional controls  and
   17  engineering  controls  employed  to  remediate  such  contamination  are
   18  unchanged from the previous certification and that nothing has  occurred
   19  that  would  constitute  a  violation of any of such controls, and gives
   20  access to such real property reasonable under the circumstances to eval-
   21  uate continued maintenance of such controls. The department shall estab-
   22  lish and maintain a database with relevant information on such  controls
   23  and  shall  include such information on its homepage on the internet and
   24  make such information available for public inspection at the  office  of
   25  the  county  clerk  or register for each county and at the office of the
   26  town clerk for each town in Suffolk and Nassau counties.
   27    4. "Person" means an individual, trust,  firm,  joint  stock  company,
   28  limited  liability  company,  corporation,  joint  venture, partnership,
   29  association, state, municipality, commission, political subdivision of a
   30  state, public benefit corporation or any interstate body.
   31    a. Such term includes any  person  owning  or  operating  an  inactive
   32  hazardous  waste  disposal  site but does not include a person that is a
   33  lender that, without participating in the management of such site, holds
   34  indicia of ownership primarily to protect the security interest  of  the
   35  person  in such site; nor does it include a person that is a lender that
   36  did not participate in management of such  site  prior  to  foreclosure,
   37  notwithstanding  that the person forecloses on such site and after fore-
   38  closure sells, re-leases (in the case of a lease  finance  transaction),
   39  or  liquidates  such site, maintains business activities, winds up oper-
   40  ations, undertakes in a non-negligent manner remedial actions under  the
   41  direction  of  the  department,  with respect to such site, or takes any
   42  other measure to preserve, protect, or prepare such site prior  to  sale
   43  or  disposition, if the person seeks to sell, re-lease (in the case of a
   44  lease finance transaction), or otherwise divest the person of such  site
   45  at the earliest practicable commercially reasonable time, on commercial-
   46  ly reasonable terms, taking into account market conditions and legal and
   47  regulatory requirements. For purposes of this paragraph:
   48    (i)  the term "participate in management" means actually participating
   49  in the management or operational affairs of  such  site;  and  does  not
   50  include  merely  having  the  capacity  to influence, or the unexercised
   51  right to control, such site's operations;
   52    (ii) a person that is a lender and that  holds  indicia  of  ownership
   53  primarily  to  protect a security interest in such site shall be consid-
   54  ered to participate in management only if, while the borrower  is  still
   55  in  possession of such site, the person exercises decisionmaking control
   56  over the environmental compliance related to such site,  such  that  the
       S. 1409                            94                            A. 2109
 
    1  person has undertaken responsibility for the hazardous waste handling or
    2  disposal practices related to such site; or exercises control at a level
    3  comparable  to  that of a manager of such site, such that the person has
    4  assumed  or manifested responsibility for the overall management of such
    5  site encompassing day-to-day decisionmaking  with  respect  to  environ-
    6  mental  compliance;  or over all or substantially all of the operational
    7  functions (as distinguished from financial or administrative  functions)
    8  of such site other than the function of environmental compliance;
    9    (iii) the term "participate in management" does not include performing
   10  an  act or failing to act prior to the time at which a security interest
   11  is created in such site;
   12    (iv) the term "participate in management" does not include  holding  a
   13  security  interest  or  abandoning  or  releasing  a  security interest;
   14  including in the terms of an extension of credit, or in  a  contract  or
   15  security  agreement  relating to the extension, a covenant, warranty, or
   16  other term or condition that relates to environmental compliance;  moni-
   17  toring  or enforcing the terms and conditions of the extension of credit
   18  or security interest; monitoring or undertaking one or more  inspections
   19  of  such  site;  requiring  a  response  action or other lawful means of
   20  addressing the release or threatened release of  a  hazardous  waste  in
   21  connection with  such site prior to, during, or on the expiration of the
   22  term  of the extension of credit; providing financial or other advice or
   23  counseling in an effort to mitigate, prevent, or cure default or diminu-
   24  tion in the value of such site; restructuring, renegotiating, or  other-
   25  wise  agreeing  to  alter  the  terms and conditions of the extension of
   26  credit or security interest; exercising  forbearance;  exercising  other
   27  remedies  that may be available under applicable law for the breach of a
   28  term or condition of the extension of credit or security  agreement;  or
   29  conducting in a non-negligent manner a remedial action directly or under
   30  the direction of the department, if the actions do not rise to the level
   31  of  participating in management (within the meaning of subparagraphs (i)
   32  and (ii) of this paragraph);
   33    (v) the term "extension of credit" includes  a  lease  finance  trans-
   34  action  in  which  the lessor does not initially select such leased site
   35  and does not during the lease term control the daily operations or main-
   36  tenance of such site; or that  conforms with regulations issued  by  the
   37  appropriate  federal  banking agency (as defined in 12 USC section 1813)
   38  or the superintendent  of  banks  or  with  regulations  issued  by  the
   39  National Credit Union Administrative Board, as appropriate;
   40    (vi)  the term "financial or administrative function" includes a func-
   41  tion such as  that  of  a  credit  manager,  accounts  payable  officer,
   42  accounts  receivable  officer,  personnel manager, comptroller, or chief
   43  financial officer, or a similar function;
   44    (vii) the terms  "foreclosure"  and  "foreclose"  mean,  respectively,
   45  acquiring  and  to  acquire,  such site through purchase at sale under a
   46  judgment or decree, power of sale, or nonjudicial  foreclosure  sale;  a
   47  deed  in  lieu  of foreclosure, or similar conveyance from a trustee; or
   48  repossession, if such site was  security  for  an  extension  of  credit
   49  previously  contracted;  conveyance  pursuant  to an extension of credit
   50  previously contracted, including the termination of a  lease  agreement;
   51  or any other formal or informal manner by which the person acquires, for
   52  subsequent  disposition, title to or possession of such site in order to
   53  protect the security interest of the person;
   54    (viii) the term "lender" means an insured depository  institution  (as
   55  defined in 12 USC Section 1813); an insured credit union  (as defined in
   56  12  USC  section  1752);  a bank or association chartered under the Farm
       S. 1409                            95                            A. 2109
 
    1  Credit Act of 1971 (12 U.S.C.  2001 et seq.); a leasing or trust company
    2  that is an affiliate of an insured depository  institution;  any  person
    3  (including a successor or assignee of any such person) that makes a bona
    4  fide  extension  of  credit  to or takes or acquires a security interest
    5  from a nonaffiliated person; the Federal National Mortgage  Association,
    6  the  Federal  Home  Loan  Mortgage Corporation, the Federal Agricultural
    7  Mortgage Corporation, or any other entity that in  a  bona  fide  manner
    8  buys  or  sells  loans  or  interests in loans; a person that insures or
    9  guarantees against a default in the repayment of an extension of credit,
   10  or acts as a surety with respect to an extension of credit, to a  nonaf-
   11  filiated  person;  and  a  person that provides title insurance and that
   12  acquires such site as a result of assignment or conveyance in the course
   13  of underwriting claims and claims settlement;
   14    (ix) the term "operational function" includes a function such as  that
   15  of  a  facility  or  plant  manager, operations manager, chief operating
   16  officer, or chief executive officer; and
   17    (x) the term "security interest" includes a right  under  a  mortgage,
   18  deed  of  trust,  assignment, judgment lien, pledge, security agreement,
   19  factoring agreement, or lease, and any other right accruing to a  person
   20  to  secure  the  repayment  of  money, the performance of a duty, or any
   21  other obligation by a nonaffiliated person.
   22    b. Such term includes any  person  owning  or  operating  an  inactive
   23  hazardous waste disposal site but does not include the state of New York
   24  or  a public corporation which acquired, and thereafter retained without
   25  participating in the management  of  such  site,  ownership  or  control
   26  involuntarily  by virtue of its function as sovereign. Neither the state
   27  of New York nor any public corporation shall incur  under  this  chapter
   28  any liability as to matters within the jurisdiction of the department as
   29  a  result  of  actions  taken in response to an emergency created by the
   30  release or threatened release of  hazardous  waste  by  another  person;
   31  provided  that  such  actions by the state or public corporation did not
   32  constitute reckless, willful, wanton, or intentional misconduct. As used
   33  in this paragraph:
   34    (i) "public corporation" means a public corporation as defined in  the
   35  general construction law;
   36    (ii)  involuntary acquisition of ownership or control includes, but is
   37  not limited to, the following:
   38    (A) acquisitions by the state or a public corporation in its  capacity
   39  as   sovereign,   including   acquisitions   pursuant   to   abandonment
   40  proceedings, or escheat, or any other circumstance of involuntary acqui-
   41  sition in its capacity as sovereign;
   42    (B) acquisitions by the state or a public corporation, or  its  agent,
   43  acting as a conservator or receiver pursuant to a clear and direct stat-
   44  utory mandate or regulatory authority;
   45    (C) acquisitions of assets through foreclosure and its equivalents, or
   46  otherwise,  by the state or a public corporation in the course of admin-
   47  istering a loan, loan guarantee, or loan insurance program;
   48    (D) acquisitions by the state or  a  public  corporation  pursuant  to
   49  seizure or forfeiture authority; and
   50    (E) acquisitions by the state or a public corporation as the result of
   51  tax delinquency proceedings; provided, that such ownership or control is
   52  not retained primarily for investment purposes;
   53    (iii) "management participation" means that the state or public corpo-
   54  ration  is actually participating  in the management or operation of the
   55  property but does not include the mere capacity to influence, ability to
       S. 1409                            96                            A. 2109
 
    1  influence, or unexercised right to control the operation  of the proper-
    2  ty.
    3    Nothing contained in this paragraph affects the applicability of para-
    4  graph  a of this subdivision in favor of a holder of a security interest
    5  according to the terms thereof.
    6    c. Such term includes any  person  owning  or  operating  an  inactive
    7  hazardous waste disposal site, including a fiduciary; provided, however,
    8  that  such  liability  on  the  part of a fiduciary shall not exceed the
    9  assets held in the fiduciary capacity if such person is not liable inde-
   10  pendently of such person's ownership as a fiduciary or actions taken  in
   11  a  fiduciary  capacity  including,  but  not limited to, the fiduciary's
   12  negligently causing or contributing to the release or threatened release
   13  of hazardous waste at such site.
   14    (i) For purposes of this paragraph:
   15    (A) the term "fiduciary" means a person  acting  for  the  benefit  of
   16  another  party  as  a bona fide trustee; executor; administrator; custo-
   17  dian; guardian of estates or guardian ad litem;  receiver;  conservator;
   18  committee  of  estates of incapacitated person; personal representative;
   19  trustee (including a successor  to a trustee) under an indenture  agree-
   20  ment,  trust  agreement, lease, or similar financing agreement, for debt
   21  securities, certificates of interest or certificates of participation in
   22  debt securities, or other forms of indebtedness as to which the  trustee
   23  is not, in the capacity of trustee, the lender; or representative in any
   24  other  capacity  that  the  department,  after  providing public notice,
   25  determines to be similar to the various capacities previously  described
   26  in  this  paragraph; and does not include either a person that is acting
   27  as a fiduciary with respect to a trust or other  fiduciary  estate  that
   28  was  organized  for  the  primary purpose of, or is engaged in, actively
   29  carrying on a trade or business for profit, unless the  trust  or  other
   30  fiduciary  estate  was created as part of, or to facilitate, one or more
   31  estate plans or because of the incapacity  of  a  natural  person  or  a
   32  person  that acquires ownership or control of a property with the objec-
   33  tive purpose of avoiding liability of the person or any other person.
   34    (B) the term "fiduciary capacity" means the capacity of  a  person  in
   35  holding title to a property, or otherwise having control of or an inter-
   36  est  in  a property, pursuant to the exercise of the responsibilities of
   37  the person as a fiduciary.
   38    (ii) Nothing in this paragraph affects the  rights  or  immunities  or
   39  other  defenses  that  are  available under law that are applicable to a
   40  person subject to this subdivision;  or  creates  any  liability  for  a
   41  person  or  a  private  right of action against a fiduciary or any other
   42  person.
   43    (iii) Nothing in this paragraph applies to a  person  if  that  person
   44  acts  in  a  capacity other than that of a fiduciary or in a beneficiary
   45  capacity and in that capacity, directly or indirectly  benefits  from  a
   46  trust  or  fiduciary  relationship;  or is a beneficiary and a fiduciary
   47  with respect to the same fiduciary estate and, as a fiduciary,  receives
   48  benefits  that  exceed  customary  or reasonable compensation, and inci-
   49  dental benefits, permitted under other applicable law.
   50    (iv) This paragraph does not  preclude  a  claim  under  this  chapter
   51  against the assets of the estate or trust administered by the fiduciary;
   52  or  a  nonemployee agent or independent contractor retained by a fiduci-
   53  ary.
   54    d. Such term includes any  person  owning  or  operating  an  inactive
   55  hazardous waste disposal site, including an industrial development agen-
   56  cy  created  under  the general municipal law, other than one that holds
       S. 1409                            97                            A. 2109
 
    1  bare legal title to such site;  has  not  participated  with  any  party
    2  responsible  under  law  for the remediation of contamination in, on, or
    3  from such site to attempt to  have  such  a  party  avoid  its  remedial
    4  liability;  has not exercised any contractual rights it may have or had,
    5  if any, under the lease, guarantee, or  any  other  financing  agreement
    6  pursuant to which the industrial development agency would assume control
    7  over  the  actual operation of the site; and has not taken possession or
    8  control of the site. Nothing in this paragraph  affects  the  rights  or
    9  immunities  or  other  defenses  that  are  available under law that are
   10  applicable to an industrial development agency; or creates any liability
   11  for a person or a private right of action against an industrial develop-
   12  ment agency or any other person.
   13    8. a. Any other provision of law to the contrary  notwithstanding,  no
   14  not-for-profit  corporation  shall incur any liability for any statutory
   15  claims of the state under this title as an owner or operator of an inac-
   16  tive hazardous waste disposal site  or  a  person  responsible  for  the
   17  disposal  of  hazardous  waste  at or onto such site, if such site is or
   18  will be used for community purposes and if  such  not-for-profit  corpo-
   19  ration  acquired  and  retains  such  site  without participating in the
   20  development of such site.
   21    b. The exemption from liability set forth in this  section  shall  not
   22  limit any other defense, indemnification or privilege under local, state
   23  or federal law.
   24    c. When used in this section:
   25    (i) "Community purposes" shall mean an activity that the local munici-
   26  pal  corporation has certified as being undertaken by the not-for-profit
   27  corporation acting on behalf of such municipal corporation, or as  being
   28  in  the  public  interest, including without limitation, creation of new
   29  permanent  jobs,  construction  or  renovation  of  affordable  housing,
   30  historic  preservation  activities, provision of new or revitalized open
   31  space, or establishment of other community facilities  such  as  medical
   32  facilities or community centers; provided, that nothing herein contained
   33  shall  be  deemed  to  establish  a  relationship of principal and agent
   34  between  the  municipality  and  the  not-for-profit  corporation.  Such
   35  certification  may  be  withdrawn at any time if the municipality deter-
   36  mines that the certification was made as a result of a misrepresentation
   37  of a material fact by the not-for-profit corporation;
   38    (ii) "Participating in development" means carrying out, or causing  or
   39  permitting  the  carrying  out,  of  any above-grade improvements to the
   40  affected site; but does not include licensing, regulatory oversight,  or
   41  the  mere capacity to regulate or influence, or the unexercised right to
   42  control the operation of the site. For purposes of this section, partic-
   43  ipating in development does not include:
   44    (A) having the capacity to influence management of such site;
   45    (B) having the unexercised right to control such  site  or  operations
   46  thereof;
   47    (C)  holding,  abandoning or releasing a security interest or tax lien
   48  on such site;
   49    (D) including a condition relating to environmental  compliance  in  a
   50  contract, permit, license or security agreement;
   51    (E) monitoring the terms and conditions of an agreement;
   52    (F) monitoring one or more inspections of such site;
   53    (G)  participating  in the marketing or determination of creditworthi-
   54  ness or income eligibility of prospective homeowners;
   55    (H) participating in development and allocation of sources and uses of
   56  project funding;
       S. 1409                            98                            A. 2109
 
    1    (I) exercising other remedies available under applicable laws;
    2    (J) applying for federal or state statutory site benefits.
    3    d.  The  exemption  under  this section shall not apply if any member,
    4  officer or director of the not-for-profit corporation is or was an offi-
    5  cer or director of any person responsible for the site under  applicable
    6  principles of statutory or common law liability, or any subsequent owner
    7  of  such  site,  whether  by election, designation, ex officio or in any
    8  other capacity or manner.
    9    e. Notwithstanding any other subdivision of this section,  a  not-for-
   10  profit corporation shall be subject to:
   11    (i)  all  summary  abatement  powers  of the commissioner set forth in
   12  section 71-0301 of this chapter; and
   13    (ii) liability as an owner or operator of a site or a person responsi-
   14  ble for the disposal of hazardous waste at or onto  such  site,  if  the
   15  not-for-profit  corporation  by  willful  or  intentional  misconduct or
   16  negligence allows a release of hazardous waste onto other property.
   17    f. The exemptions  from  liability  provided  by  this  section  shall
   18  continue  to be effective with respect to a not-for-profit corporation's
   19  ownership of an affected site only  if  the  not-for-profit  corporation
   20  which  takes  possession  of such site seeks to sell, lease or otherwise
   21  divest itself of such site within five years or at the earliest  practi-
   22  cable  and  reasonable  time  taking into account the market conditions,
   23  legal and regulatory requirements, zoning and planned usage of the site,
   24  and the best interest of the not-for-profit corporation and the  public,
   25  including  the  surrounding community. Sale of the site shall be conclu-
   26  sive proof of the not-for-profit  corporation's  reasonable  efforts  to
   27  divest  itself  of the site. If the not-for-profit corporation is unable
   28  to divest itself of the site within five years of the date on which  the
   29  remediation  of  the  site is completed, such not-for-profit corporation
   30  shall provide a report annually to the municipal  corporation  in  which
   31  such  site  is located to establish that its efforts to divest itself of
   32  such site within the preceding twelve months have  been  diligent.  Such
   33  report  shall  document the actions of the not-for-profit corporation to
   34  comply with this subdivision, market conditions, the effects, if any, of
   35  contamination on the site's  marketability,  and  the  reasonable  steps
   36  taken by such not-for-profit corporation to render such site marketable.
   37    g.  Any  not-for-profit  corporation  that  has taken possession of an
   38  affected site shall notify the department of any  release  of  hazardous
   39  waste or petroleum within ten days of obtaining actual knowledge of such
   40  release,  unless  a  shorter  notice  period is required under any other
   41  provision of law, in which case  the  shorter  notice  period  controls.
   42  Failure to notify the department within the ten day or shorter notifica-
   43  tion  period shall result in the loss of the exemption set forth in this
   44  section.
   45    h. The exemptions from liability provided by this section shall not be
   46  assignable to any third party.
   47    § 6. Subdivision 1 of section 27-1303 of the  environmental  conserva-
   48  tion  law,  as  added  by chapter 282 of the laws of 1979, is amended to
   49  read as follows:
   50    1.  [Each] a.  For a period of one year after the  effective  date  of
   51  the  chapter  of the laws of two thousand three designating and amending
   52  this paragraph, each county shall, for the purpose of locating  inactive
   53  hazardous  waste  disposal  sites,  as  that term was defined on January
   54  first, two thousand three, survey  its  jurisdiction  to  determine  the
   55  existence  and  location  of suspected inactive hazardous waste disposal
   56  sites and shall[, within four months  of  the  effective  date  of  this
       S. 1409                            99                            A. 2109
 
    1  title,] annually thereafter submit a report to the department describing
    2  the location of each such suspected site and the reasons for such suspi-
    3  cion.
    4    b.  Commencing  one  year  after the effective date of this paragraph,
    5  each county shall, for the purpose of locating inactive hazardous  waste
    6  disposal  sites,  survey its jurisdiction to determine the existence and
    7  location of suspected inactive hazardous waste disposal sites and  shall
    8  annually  thereafter  submit  a  report to the department describing the
    9  location of each such suspected site and the reasons for such suspicion.
   10    § 7. Section 27-1305 of the environmental conservation law, as amended
   11  by chapter 857 of the laws of 1982, subdivision 1, paragraphs n and o of
   12  subdivision 3 as amended and paragraph p of subdivision 3  as  added  by
   13  chapter 476 of the laws of 2000, paragraph b of subdivision 3 as amended
   14  by chapter 140 of the laws of 1991, the opening paragraph of paragraph b
   15  and  paragraph  f of subdivision 4 as amended by chapter 649 of the laws
   16  of 1988, paragraph c of subdivision 4 as amended by chapter 416  of  the
   17  laws of 1993, paragraph e of subdivision 4 as added by chapter 38 of the
   18  laws of 1985, and subdivision 6 as amended by chapter 484 of the laws of
   19  1994, is amended to read as follows:
   20  § 27-1305. Reports by the department; registry of sites.
   21    1. [The department shall, on or before May fifteenth, nineteen hundred
   22  eighty, and annually thereafter on the first day of May of each succeed-
   23  ing  year, transmit a report to the legislature and the governor identi-
   24  fying every inactive hazardous waste disposal site in the state known to
   25  the department. Such reports shall reflect information available to  the
   26  department  as of March thirty-first of each year. A copy of such report
   27  shall be sent to the department of health and the chief executive  offi-
   28  cer  of every county. Upon identification of an inactive hazardous waste
   29  disposal site not included in the report for the  immediately  preceding
   30  year, the department shall notify in writing the chief executive officer
   31  of  each  county,  city,  town and village and the public water supplier
   32  which services the area in which such site is located that such site has
   33  been so identified. For the purposes of this section,  "water  supplier"
   34  shall  mean  any  public  water  system  as such term is defined for the
   35  purposes of the sanitary code of the state of New York as authorized  by
   36  section two hundred twenty-five of the public health law.
   37    2.  Each  annual  report  shall include but need not be limited to the
   38  following information with respect to each site:
   39    a. A general description of the site, which shall include the name, if
   40  any, of the site, the address of the site, the type and quantity of  the
   41  hazardous  waste  disposed  of  at  the site and the name of the current
   42  owners of the site;
   43    b. An assessment by the department of  any  significant  environmental
   44  problems at and near the site;
   45    c. An assessment prepared by the department of health of (i) any seri-
   46  ous  health  problems in the immediate vicinity of the site and (ii) any
   47  health problems deemed by the department of  health  to  be  related  to
   48  conditions at the site;
   49    d.  The  status  of  any  testing,  monitoring  or remedial actions in
   50  progress or recommended by the department;
   51    e. The status of any pending legal actions and any federal,  state  or
   52  local government permits or approvals concerning the site; and
   53    f.  An  assessment  of the relative priority of the need for action at
   54  each site to remedy environmental and health problems resulting from the
   55  presence of wastes at such site.
       S. 1409                            100                           A. 2109
 
    1    3.] The department  shall  maintain  and  make  available  for  public
    2  inspection, either at each of its regional offices and regional sub-off-
    3  ices,  at the office of the county clerk or register for each county and
    4  at the office of the town clerk for each  town  in  Suffolk  and  Nassau
    5  counties,  or  on  its  homepage on the internet, a registry of inactive
    6  hazardous waste disposal sites in such region or, with  respect  to  the
    7  office  of  the county clerk or register, in such county. The department
    8  shall take all necessary action to ensure that the registry  provides  a
    9  complete  and  up-to-date  listing  of all such sites within the region.
   10  Such registry shall include but need not be limited to those items among
   11  the following which the commissioner determines to be necessary:
   12    a. [The] A description of the sites [included in the latest report  by
   13  the department to the governor and legislature] consisting of:
   14    (i)  a  general description of the site, which shall include the name,
   15  if any, of the site, the address of the site, the type and  quantity  of
   16  the  hazardous waste disposed of at the site and the name of the current
   17  owners of the site;
   18    (ii) an assessment by the department of any significant  environmental
   19  problems at and near the site;
   20    (iii)  an assessment prepared by the department of health of any seri-
   21  ous health problems in the immediate vicinity of the site and any health
   22  problems deemed by the department of health to be related to  conditions
   23  at the site;
   24    (iv)  the  status  of  any  testing, monitoring or remedial actions in
   25  progress or recommended by the department;
   26    (v) the status of any pending legal actions and any federal, state  or
   27  local government permits or approvals concerning the site; and
   28    (vi)  an assessment of the relative priority of the need for action at
   29  each site to remedy environmental and health problems resulting from the
   30  presence of wastes at such site;
   31    b. Address and site boundaries including tax  map  parcel  numbers  or
   32  section, block and lot numbers;
   33    c. Time period of use for disposal of hazardous waste;
   34    d.  Name  of  the current owner and operator and names of any past and
   35  reported owners and operators during the time period of use for disposal
   36  of hazardous waste;
   37    e. Names of persons responsible for the generation and  transportation
   38  of hazardous waste disposed of;
   39    f. Type and quantity of hazardous waste disposed of;
   40    g. Manner of disposal of hazardous waste;
   41    h. Nature of soils at the site;
   42    i. Depth of water table at the site;
   43    j. Location, nature and size of aquifers at the site;
   44    k. Direction of present and historic groundwater flows at the site;
   45    l.  Location,  nature  and  size of all surface waters at and near the
   46  site;
   47    m. Levels of contaminants, if any, in groundwater, surface water,  air
   48  and  soils at and near the site resulting from hazardous wastes disposed
   49  of at the site or from any other cause and areas known  to  be  directly
   50  affected or contaminated by wastes from the site;
   51    n.  As  determined by the department of health, current quality of all
   52  drinking water drawn from or distributed through the area in  which  the
   53  site  is  located  when  the  department of health determines that water
   54  quality may have been affected by the site in  question  and  any  known
   55  change in the quality of such drinking water over time;
       S. 1409                            101                           A. 2109
 
    1    o.  Proximity  of  the site to private residences, public buildings or
    2  property, school facilities, places of work or other areas  where  indi-
    3  viduals may be present; and
    4    p. The name, address and telephone number of the public water supplier
    5  which services the area in which such site is located.
    6    [4.]  2.  a.  The department shall conduct investigations of the sites
    7  listed in the registry and shall investigate areas or sites which it has
    8  reason to believe should be included in the  registry.  The  purpose  of
    9  these  investigations  shall  be  to develop the information required by
   10  [subdivisions two and three] subdivision  one  of  this  section  to  be
   11  included in the [annual report by the department] registry.
   12    b.  The  department  shall, as part of the registry, assess and, based
   13  upon new information received, reassess by March  thirty-first  of  each
   14  year,  in  cooperation  with the department of health, the relative need
   15  for action at each site to  remedy  environmental  and  health  problems
   16  resulting  from  the  presence  of  hazardous  wastes  at  such  sites 
;
   17  provided, however, that if at the time of such assessment  or  reassess-
   18  ment,  the department has not placed a site in classification 1 or 2, as
   19  described in subparagraphs one and two of this paragraph, and such  site
   20  is  the  subject  of negotiations for, or implementation of, a voluntary
   21  agreement pursuant to title fourteen of  this  article,  obligating  the
   22  person subject to such agreement to, at a minimum, eliminate or mitigate
   23  all  significant  threats  to the public health and environment posed by
   24  the hazardous waste pursuant to such  agreement,  the  department  shall
   25  defer  its  assessment  or reassessment during the period such person is
   26  engaged in good faith negotiations to enter into such an agreement  and,
   27  following  its execution, is in compliance with the terms of such agree-
   28  ment, and shall assess or reassess such site upon completion of  remedi-
   29  ation  to the department's satisfaction.  In making its assessments, the
   30  department shall place every site in one of  the  following  classifica-
   31  tions:
   32    (1)  Causing  or presenting an imminent danger of causing irreversible
   33  or irreparable damage to the  public  health  or  environment--immediate
   34  action required;
   35    (2)  Significant  threat  to  the public health or environment--action
   36  required;
   37    (3) Does not present a significant threat  to  the  public  health  or
   38  environment--action may be deferred;
   39    (4) Site properly closed--requires continued management;
   40    (5)  Site properly closed, no evidence of present or potential adverse
   41  impact--no further action required.
   42    c. (1) Any owner or operator of a site listed pursuant to this section
   43  may petition the commissioner for deletion of such site, modification of
   44  the site classification, or modification of  any  information  regarding
   45  such  site by submitting a written statement in such form as the commis-
   46  sioner may require setting forth the grounds of the petition.
   47    (2) Within ninety days after  the  submittal  of  such  petition,  the
   48  commissioner  may convene an administrative hearing to determine whether
   49  a particular site should be deleted from the registry, receive  a  modi-
   50  fied  site  classification or whether any information regarding the site
   51  should be modified. In any such hearing the burden of proof shall be  on
   52  the  petitioner.  No  less  than  thirty  days  prior to the hearing the
   53  commissioner shall cause a notice of hearing to be published in the next
   54  available environmental notice bulletin and in a  newspaper  of  general
   55  circulation in the county in which the site is located. The commissioner
   56  shall  also  notify in writing any owner or operator of the site no less
       S. 1409                            102                           A. 2109
 
    1  than thirty days prior to the hearing. The cost  of  any  such  hearing,
    2  including  the  cost  of  any  public  notification,  shall  be  at  the
    3  petitioner's expense.
    4    (3) No later than thirty days following receipt of the complete record
    5  as  that  term  is defined in the state administrative procedure act, or
    6  following the decision not to hold  a  hearing  the  commissioner  shall
    7  provide  the  owner or operator with a written determination accompanied
    8  by reason therefor regarding the deletion of such site, modification  of
    9  the  site  classification  or  modification of any information regarding
   10  such site. Any decision rendered by the commissioner shall be reviewable
   11  under article seventy-eight of the civil practice law and rules.
   12    (4) The commissioner may not delete any site from the registry without
   13  providing public notice no less than sixty days prior  to  the  proposed
   14  deletion.  Such notice of deletion shall be published in the next avail-
   15  able environmental notice bulletin and in a newspaper of general  circu-
   16  lation  in  the  county  in  which the site is located. The commissioner
   17  shall also notify in writing any owner  or  operator  of  the  site,  if
   18  applicable,  no less than sixty days prior to the proposed deletion. The
   19  commissioner shall provide a thirty-day period for submission of written
   20  comments and may provide an opportunity for submission of oral  comments
   21  at  a  public meeting at or near the site. The commissioner shall summa-
   22  rize any comments received and make the summary available to the public.
   23  The commissioner may convene  an  administrative  hearing  to  determine
   24  whether a particular site should be deleted from the registry, receive a
   25  modified  site  classification  or whether any information regarding the
   26  site should be modified.
   27    (5) The department shall notify, as soon as possible and within avail-
   28  able resources all public repositories of the registry of any  modifica-
   29  tions  or deletions to such registry. The department shall also note any
   30  such deletions or modifications in the next annual report  and  publica-
   31  tion of the registry.
   32    (6)  The department shall, within ten days of any determination notify
   33  the local governments of jurisdiction whenever a change is made  in  the
   34  registry pursuant to this subdivision.
   35    d.  (1)  Within seven months after the effective date of this subdivi-
   36  sion the department shall notify by certified mail the owner of  all  or
   37  any part of each site or area included in the registry, of the inclusion
   38  of  the site or area by mailing notice to such owner at the owner's last
   39  known address. Thereafter, fifteen days before any site or area is added
   40  to the registry, the department shall notify  in  writing  by  certified
   41  mail  the owner of all or any part of such site or area of the inclusion
   42  of such site or area by mailing notice to each such owner at the owner's
   43  last known address.
   44    (2) Notice pursuant to paragraph a of this subdivision  shall  include
   45  but  not  be  limited  to  a  description of the duties and restrictions
   46  imposed by section 27-1317 of this title and  by  section  one  thousand
   47  three hundred eighty-nine-d of the public health law.
   48    (3)  Non-receipt  of  any  notice  mailed to an owner pursuant to this
   49  subdivision shall in no  way  affect  the  responsibilities,  duties  or
   50  liabilities  imposed on any person by this title or title XII-A of arti-
   51  cle thirteen of the public health law.
   52    e. The department  shall,  in  consultation  with  the  department  of
   53  health,  evaluate  existing  site evaluation systems and shall develop a
   54  system to select and prioritize sites for remedial action.  Such  system
   55  shall  incorporate  environmental,  natural  resource  and public health
   56  concerns.
       S. 1409                            103                           A. 2109
 
    1    f. The department shall  develop  a  site  status  reporting  system[.
    2  Utilizing  such  system,  the  department shall report by October first,
    3  nineteen hundred eighty-five and quarterly thereafter  to  the  governor
    4  and  to the legislature for each site listed in the registry. The report
    5  shall include:
    6    (1)  the  classification  and, when available, the priority ranking of
    7  each site;
    8    (2) the status of the investigatory, design or  construction  work  at
    9  each  site  including  the dates on which such work was commenced and is
   10  expected to be completed or, if known, the date on which  such  work  is
   11  expected to be commenced and completed;
   12    (3)  the  status  of  any  remedial  enforcement  actions taken by the
   13  department, the attorney-general or, if  known,  any  other  party  with
   14  respect to each site;
   15    (4) the status of any health department inspection at each site;
   16    (5) the status of the actions, if any, taken with respect to each site
   17  by the department's solid waste or hazardous waste regulatory programs;
   18    (6)  such  other information as the department may provide to indicate
   19  the status of remedial actions at each site; and
   20    (7) an identification of monies expended or encumbered pursuant  to  a
   21  state  contract  from either the environmental quality bond act of nine-
   22  teen hundred eighty-six or the hazardous waste remedial  fund  for  each
   23  site]  and  utilize  such system to ensure that the registry required by
   24  subdivision one of this section provides a complete and up-to-date list-
   25  ing of all sites in each region.
   26    [5.] 3. The department shall[, as soon as possible  but  in  no  event
   27  later  than  January  first,  nineteen  hundred  eighty-four,]  annually
   28  prepare and submit in writing [a], or by posting on its homepage on  the
   29  internet  an  updated  "state  inactive  hazardous waste remedial plan,"
   30  hereinafter referred to as "the plan" [to the state superfund management
   31  board. Such board shall then approve of the plan or make such  modifica-
   32  tion  as it is empowered to do pursuant to section 27-1319 of this chap-
   33  ter and submit the approved plan or modified plan], to the governor  and
   34  the legislature on or before [March first, nineteen hundred eighty-four]
   35  July  first of each year. In [proposing,] preparing [and], compiling and
   36  updating the plan, the department shall:
   37    a. Conduct or cause to  be  conducted  field  investigations  of  high
   38  priority  sites  listed  in  the inactive hazardous waste disposal sites
   39  registry for the purpose of further defining necessary remedial  action.
   40  To the maximum extent practicable, the department shall utilize existing
   41  information  including,  but  not limited to, subsurface borings and any
   42  analyses or tests of samples taken from such sites by owners  or  opera-
   43  tors, other responsible persons and any federal or non-federal agencies.
   44    b.  Make  any  subsurface borings and any analyses or tests of samples
   45  taken as may be necessary or desirable to effectuate the field  investi-
   46  gations  of sites as required under this section subject to the require-
   47  ments of this title.
   48    c. Make any record searches or document reviews as may be necessary or
   49  desirable to effectuate the purposes of  this  section  subject  to  the
   50  requirements of this title.
   51    d.  Consider the effects on the health, environment and economy of the
   52  state when assessing the relative priority of sites as required by  this
   53  section,  especially  any  actual  or significant threat of direct human
   54  contact or contamination of groundwater or drinking water.
   55    e. Detail the recommended strategy, methods and time  frame  by  which
   56  remedial  action  at sites shall be carried out, except that no informa-
       S. 1409                            104                           A. 2109
 
    1  tion or work product associated with actual or pending litigation  shall
    2  be divulged unless otherwise required by law.
    3    f.  Estimate, with reasonable specificity, based upon the field inves-
    4  tigations, assessments, analyses, document reviews and other appropriate
    5  data gathering, the costs of remedial action for sites included  in  the
    6  plan,  considering  the  appropriate methods and techniques as currently
    7  exist in the field of hazardous waste management and any such  estimates
    8  or  recommendations shall reflect such costs as are reasonably necessary
    9  to contain, alleviate or end the threat to life  or  health  or  to  the
   10  environment.
   11    [6.]  4. On or before July first, nineteen hundred eighty-six and July
   12  first of each succeeding year, the department  shall  prepare  a  status
   13  report on the implementation of the plan, and an update of the policies,
   14  program objectives, methods and strategies as outlined in the plan which
   15  guide  the  overall  inactive  hazardous waste site remediation program.
   16  Such status report shall reflect information available to the department
   17  as of March thirty-first of each year, and shall include  an  accounting
   18  of all monies expended or encumbered from the environmental quality bond
   19  act  of nineteen hundred eighty-six or the hazardous waste remedial fund
   20  during the preceding fiscal year, such accounting to separately list:
   21    a. monies expended or encumbered for the purpose  of  conducting  site
   22  investigations;
   23    b. monies expended or encumbered for the purpose of conducting remedi-
   24  al investigations and feasibility studies;
   25    c. monies expended or encumbered for the purpose of conducting remedi-
   26  al design studies;
   27    d. monies expended or encumbered for the purpose of conducting remedi-
   28  al construction activities;
   29    e. monies expended or encumbered for operation, maintenance, and moni-
   30  toring activities;
   31    f. monies expended or encumbered for interim remedial measures;
   32    g.  monies  expended  or encumbered for administrative personnel costs
   33  associated  with  activities  conducted  at  inactive  hazardous   waste
   34  disposal sites;
   35    h.  monies expended or encumbered for oversight activities at inactive
   36  hazardous waste disposal sites;
   37    i. monies expended or encumbered in stand-by  contracts  entered  into
   38  pursuant  to  section  3-0309 of this chapter and the purposes for which
   39  these stand-by contracts were entered into; and
   40    j. an accounting of payments received and  payments  obligated  to  be
   41  received  pursuant  to  this  title,  and  a  report of the department's
   42  attempts to secure such obligations.
   43    § 7-a. Paragraph e of subdivision 1 of section 27-1307 of the environ-
   44  mental conservation law, as added by chapter 282 of the laws of 1979, is
   45  amended to read as follows:
   46    e. Any other information that the department  may  deem  necessary  to
   47  prepare  the  [annual report or] registry required by section 27-1305 of
   48  this article.
   49    § 8. Subdivisions 3, 4, and 5 of section 27-1309 of the  environmental
   50  conservation  law,  as  amended  by chapter 857 of the laws of 1982, are
   51  amended to read as follows:
   52    3. Any duly designated officer or employee of the  department,  or  of
   53  any  state  agency,  and  any  agent,  consultant,  contractor, or other
   54  person, including an employee, agent, consultant,  or  contractor  of  a
   55  responsible person acting at the direction of the department, so author-
   56  ized  in  writing  by the commissioner, may enter any inactive hazardous
       S. 1409                            105                           A. 2109
 
    1  waste disposal site and areas  near  such  site  and  inspect  and  take
    2  samples  of wastes, soils, air, surface water, and groundwater. In order
    3  to take such samples, the department or authorized person may utilize or
    4  cause to be utilized such sampling methods as it determines to be neces-
    5  sary including, but not limited to, soil borings and monitoring wells.
    6    4.  The  department or authorized person shall not take any samples[,]
    7  involving the substantial disturbance of the ground surface of any prop-
    8  erty unless it has made a reasonable effort to identify the owner of the
    9  property and to notify such owner of the [department's] intent  to  take
   10  such  samples.  If  the  owner  can  be identified, the department shall
   11  provide such owner with a minimum of ten [days] days' written notice  of
   12  [its]  the  intent to take such samples, unless the commissioner makes a
   13  written determination that such  ten  day  notice  will  not  allow  the
   14  department  to  protect  the environment or public health, in which case
   15  two [days] days' written notice shall be sufficient. Any  inspection  of
   16  the property and each such taking of samples shall take place at reason-
   17  able  times and shall be commenced and completed with reasonable prompt-
   18  ness. If any officer, employee, agent, consultant, contractor, or  other
   19  person  so authorized in writing by the commissioner obtains any samples
   20  prior to leaving the premises, he or she shall  give  to  the  owner  or
   21  operator  a  receipt describing the sample obtained and, if requested, a
   22  portion of such  sample  equal  in  volume  or  weight  to  the  portion
   23  retained. If any analysis is made of such samples, a copy of the results
   24  of  such  analysis shall be furnished promptly to the owner or operator.
   25  Upon the completion  of  all  sampling  activities,  the  department  or
   26  authorized  person  shall  remove, or cause to be removed, all equipment
   27  and well machinery and return the ground surface of the property to  its
   28  condition  prior  to  such sampling, unless the department or authorized
   29  person and the owner of property shall otherwise agree.
   30    5. The expense of any such sampling and analysis shall be paid by  the
   31  department,  but  may  be  recovered  from any responsible person in any
   32  action or proceeding brought pursuant  to  this  title  or  common  law;
   33  provided,  that  if  the  person  so  authorized  in writing shall be an
   34  employee, agent, consultant,  or  contractor  of  a  responsible  person
   35  acting  at the direction of the department, then the expense of any such
   36  sampling and analysis shall be paid by the responsible person.
   37    § 9. Paragraph b of subdivision 1 of section 27-1313 of  the  environ-
   38  mental conservation law is relettered paragraph c, and a new paragraph b
   39  is added to read as follows:
   40    b.  The department shall have the authority to require the development
   41  and  implementation  of  a  department-approved inactive hazardous waste
   42  disposal site remedial program; provided, however, that  the  department
   43  shall  use  the  following  in developing and implementing such remedial
   44  program:
   45    (i) The objective of such remedial program shall be the protection  of
   46  the  public  health and environment, with the minimum objective being to
   47  eliminate or mitigate all significant threats to the public  health  and
   48  environment  presented  by hazardous waste through proper application of
   49  scientific and engineering principles, and such remedial program must be
   50  selected upon due consideration of the following factors:
   51    (A) conformance to standards and criteria that are generally  applica-
   52  ble,  consistently  applied, and officially promulgated, that are either
   53  directly applicable, or that are not directly applicable but  are  rele-
   54  vant  and appropriate, unless good cause exists why conformity should be
   55  dispensed with, and with consideration being given  to  guidance  deter-
   56  mined, after the exercise of engineering judgment, to be applicable;
       S. 1409                            106                           A. 2109
 
    1    (B) overall protectiveness of the public health and environment;
    2    (C) short-term effectiveness;
    3    (D) long-term effectiveness;
    4    (E)  reduction  of  toxicity,  mobility,  and volume with treatment; a
    5  remedial program that permanently and significantly reduces the  toxici-
    6  ty,  mobility and/or volume of hazardous waste is to be preferred over a
    7  remedial program that does not do so; the following is the hierarchy  of
    8  remedial  technologies  ranked from most preferable to least preferable:
    9  (1) destruction, onsite or offsite; (2) separation or treatment,  onsite
   10  or  offsite; (3) solidification or chemical fixation, onsite or offsite;
   11  (4) control and isolation, onsite or offsite;
   12    (F) cost;
   13    (G) implementability;
   14    (H) community acceptance; and
   15    (I) land use: the current, intended, and reasonably anticipated future
   16  land uses for the property and its surroundings, to  the  extent  ascer-
   17  tainable  from  consideration  of current use, zoning laws, zoning maps,
   18  comprehensive community master plans,  population  growth  patterns  and
   19  projections,  accessibility to existing infrastructure, current institu-
   20  tional controls, location in  relation  to  urban  and  residential  and
   21  commercial  and  industrial  and  agricultural  and  recreational areas,
   22  federal and state use designations, historical and/or recent development
   23  patterns, cultural factors, natural resources,  potential  vulnerability
   24  of  groundwater  to  contamination,  environmental  justice, location of
   25  wetlands, proximity to floodplains, proximity to  critical  habitats  of
   26  endangered  or threatened species, geography and geology, and, locations
   27  of wellhead protection areas and recharge areas and other areas  identi-
   28  fied in the state's comprehensive groundwater protection program.
   29    (ii)  Notwithstanding  anything  to the contrary in this paragraph, at
   30  sites listed pursuant to section 27-1305 of this title as classification
   31  1 or 2, there shall be a presumption for soil remediation to soil  cate-
   32  gory  2  for  residential  purposes  pursuant to section 27-1316 of this
   33  title where such  remediation  is  conducted  by  a  person  responsible
   34  according  to applicable principles of statutory or common law liability
   35  at a site that is not in active use for industrial  or  commercial  uses
   36  and is adjacent to residential uses. This presumption may be overcome by
   37  written  findings  of  the commissioner after an opportunity for citizen
   38  participation consistent with this title.
   39    (iii) No remedial program may be selected except upon the  commission-
   40  er's  finding  that the same will be adequately protective of the public
   41  health and the environment.
   42    (iv) Nothing herein contained shall be deemed to require site-specific
   43  remedy selection, and the commissioner shall have the power to develop a
   44  list of presumptive remedial strategies that are appropriate for specif-
   45  ic site types and/or contaminants  based  upon  historical  patterns  of
   46  remedy  selection and the department's scientific and engineering evalu-
   47  ation of performance data on technology implementation.
   48    § 10.   Paragraph a of subdivision 3  and  subdivisions  4  and  8  of
   49  section  27-1313  of  the environmental conservation law, paragraph a of
   50  subdivision 3 as amended and subdivision 8 as added by  chapter  857  of
   51  the  laws  of 1982, subdivision 4 as added by chapter 282 of the laws of
   52  1979, are amended, and three new subdivisions 10, 11, and 12  are  added
   53  to read as follows:
   54    a.  Whenever  the commissioner finds that hazardous wastes at an inac-
   55  tive hazardous waste disposal site constitute a  significant  threat  to
   56  the  environment, he or she may: (i) order the owner of such site and/or
       S. 1409                            107                           A. 2109
 
    1  any person responsible for the disposal of hazardous wastes at such site
    2  [(i)] to develop an inactive  hazardous  waste  disposal  site  remedial
    3  program,  subject  to  the approval of the department, at such site, and
    4  [(ii)] to implement such program within reasonable time limits specified
    5  in  the order; or (ii) develop and implement a remedial program for such
    6  site after a reasonable, but unsuccessful, attempt to obtain the consent
    7  of the owner and/or any person responsible to the issuance of  an  order
    8  to develop and implement such remedial program for such site.
    9    Any  remedial  program  developed and implemented pursuant to subpara-
   10  graph (i) or (ii) of this  paragraph  shall  provide  for  a  reasonable
   11  opportunity  for submission of written and oral comments regarding, at a
   12  minimum, the proposed remedial program;  and  in  accordance  with  such
   13  regulations  as it may promulgate, the department may, subject to appro-
   14  priation therefor, make grants of up to fifty thousand dollars per  site
   15  available to a municipality which is not responsible according to appli-
   16  cable  principles  of  statutory  or  common  law liability, a community
   17  group, and/or such a municipality and a community group  in  partnership
   18  with  each  other,  and which may be affected by a release or threatened
   19  release of hazardous waste disposed at such  site  in  order  to  obtain
   20  technical assistance in interpreting existing information with regard to
   21  the  nature and extent of the contamination at the site and the develop-
   22  ment and implementation of such remedial program. To qualify to  receive
   23  such  assistance, a community group must demonstrate that its membership
   24  represents the interests of the community affected  by  such  site,  and
   25  that  members'  health, economic well-being or enjoyment of the environ-
   26  ment are potentially threatened by such site  and  a  municipality  must
   27  demonstrate  financial need. The proposed recipient must also contribute
   28  twenty percent of the total grant, or such other amount to be determined
   29  by the department in accordance with such regulations as it may  promul-
   30  gate,  which may be satisfied through money or the cash value of donated
   31  supplies or services. Grants awarded under this section may not be  used
   32  for the purpose of collecting field sampling data, political activity or
   33  lobbying.    Provided,  however,  that  in the event the commissioner of
   34  health shall issue an order pursuant to subdivision three of section one
   35  thousand three hundred eighty-nine-b of  the  public  health  law,  such
   36  order  of  the  commissioner  of health shall supersede any order issued
   37  hereunder.
   38    4. a. Any order issued pursuant to subdivision three of this  section,
   39  other  than  one  issued  on consent of the person who is the subject of
   40  such order, shall be issued only after notice and the opportunity for  a
   41  hearing is provided to persons who may be the subject of such order. The
   42  commissioner  shall  determine which persons are responsible pursuant to
   43  said subdivision according to  applicable  principles  of  statutory  or
   44  common law liability. Such persons shall be entitled to raise any statu-
   45  tory  or  common law defense at any such hearing and such defenses shall
   46  have the same force and effect at such hearings as they would have in  a
   47  court  of  law. In the event a hearing is held, no order shall be issued
   48  by the commissioner under subdivision three  of  this  section  until  a
   49  final  decision  has  been  rendered. Any such order shall be reviewable
   50  pursuant to article seventy-eight of the civil practice  law  and  rules
   51  within  thirty  days  after  service of such order. The commissioner may
   52  request the participation of the attorney general in such hearings.
   53    b. There shall be no liability under this section for a person  other-
   54  wise  liable  who  can establish by a preponderance of the evidence that
   55  the significant threat to  the  environment  attributable  to  hazardous
   56  waste  disposed  at an inactive hazardous waste disposal site was caused
       S. 1409                            108                           A. 2109
 
    1  solely by an act of God; an act of war; or an act or omission of a third
    2  party other than an employee or agent of such person, or than one  whose
    3  act  or  omission  occurs  in connection with a contractual relationship
    4  existing  directly or indirectly with such person (except where the sole
    5  contractual arrangement arises from a published  tariff  and  acceptance
    6  for carriage by a common carrier or rail), if such person establishes by
    7  a preponderance of the evidence that such person exercised due care with
    8  respect  to the hazardous waste concerned, taking into consideration the
    9  characteristics of such hazardous waste, in light of all relevant  facts
   10  and  circumstances,  and  took  precautions  against foreseeable acts or
   11  omissions of any such third party and the consequences that could  fore-
   12  seeably  result from such acts or omissions; or any combination of them.
   13  For purposes of this paragraph, the  term,  "contractual  relationship,"
   14  includes, but is not limited to, land contracts, deeds, or other instru-
   15  ments  transferring  title  or  possession,  unless the real property on
   16  which the site concerned is located was acquired by  such  person  after
   17  the  disposal  or  placement  of  the hazardous waste on, in, or at such
   18  site, and such person establishes  one  or  more  of  the  circumstances
   19  described  in  subparagraph  (i),  (ii), or (iii) of this paragraph by a
   20  preponderance of the evidence:
   21    (i) At the time such person acquired the site such person did not know
   22  and has no reason to know that any hazardous waste which is the  subject
   23  of  the  significant  threat determination was disposed of on, in, or at
   24  the site. To establish that such person has  no  reason  to  know,  such
   25  person must have undertaken, at the time of acquisition, all appropriate
   26  inquiry  into the previous ownership and uses of the property consistent
   27  with good commercial or customary practice  in  an  effort  to  minimize
   28  liability.  For  purposes  of  the  preceding sentence, the commissioner
   29  shall take into account any specialized knowledge or experience  on  the
   30  part of such person, the relationship of the purchase price to the value
   31  of  the  property if uncontaminated, commonly known or reasonably ascer-
   32  tainable information about the property, the obviousness of the presence
   33  or likely presence of contamination at the property, and the ability  to
   34  detect such contamination by appropriate inspection; or
   35    (ii)  Such  person  is  a government entity which acquired the site by
   36  escheat, or through any other involuntary transfer or acquisition; or
   37    (iii) Such person acquired the site by  inheritance  or  bequest,  and
   38  that  such person exercised due care with respect to the hazardous waste
   39  concerned, taking into consideration the characteristics of such hazard-
   40  ous waste, in light of all relevant facts and  circumstances,  and  took
   41  precautions  against  foreseeable  acts  or  omissions of any such third
   42  party and the consequences that could foreseeably result from such  acts
   43  or omissions.
   44    Nothing in this paragraph shall diminish the liability of any previous
   45  owner  or  operator of the site who would otherwise be liable under this
   46  section. Notwithstanding this paragraph, if such person obtained  actual
   47  knowledge  of  the release or threatened release of a hazardous waste at
   48  the site when such person owned the site and  then  subsequently  trans-
   49  ferred  ownership  of the site to another person without disclosing such
   50  knowledge, such person shall be treated as a person responsible for  the
   51  disposal of hazardous waste at the site, and no defense under this para-
   52  graph shall be available to such person. Nothing in this paragraph shall
   53  affect  the  liability under this section of a person who, by any act or
   54  omission, caused or contributed to the release or threatened release  of
   55  a  hazardous  waste  which is the subject of such proceeding relating to
   56  such site.
       S. 1409                            109                           A. 2109
 
    1    8. Any duly designated officer or employee of the  department  or  any
    2  other  state  agency,  and  any  agent, consultant, contractor, or other
    3  person, including an employee, agent, consultant,  or  contractor  of  a
    4  responsible person acting at the direction of the department, so author-
    5  ized  in  writing  by the commissioner, may enter any inactive hazardous
    6  waste disposal site and areas near such site to implement[, pursuant  to
    7  subdivision  five of this section,] an inactive hazardous waste disposal
    8  site remedial program for such site, provided the commissioner has  sent
    9  a  written notice to the owners of record or any known [known] occupants
   10  of such site or nearby areas of the intended entry and work at least ten
   11  days prior to such initial entry.
   12    10. a. If, after the commissioner makes the finding described in para-
   13  graph a of subdivision three of this section and after expending reason-
   14  able efforts, the department is unable to obtain a voluntary  commitment
   15  by  the  owner  of  an inactive hazardous waste disposal site and/or any
   16  person responsible for the disposal of hazardous wastes at such site (i)
   17  to develop an inactive hazardous waste disposal site  remedial  program,
   18  subject  to the approval of the department, at such site, and/or (ii) to
   19  implement such program within reasonable time limits, the department may
   20  undertake such development or implementation, in which case, subject  to
   21  paragraphs  b and c of this subdivision, there is hereby created a right
   22  of the state to recover in any court of competent jurisdiction from such
   23  owner and/or any person responsible an amount equal to all  costs,  both
   24  direct  and  indirect,  respecting  such  site that the state shall have
   25  incurred.
   26    b. Two or more owners and/or persons responsible  described  in  para-
   27  graph  a  of  subdivision  three  of this section may claim contribution
   28  among themselves in an action brought in a court of competent  jurisdic-
   29  tion,  and  the  amount of contribution to which any of them is entitled
   30  shall be equal to the excess paid by that person  responsible  over  and
   31  above such person's equitable share of costs.
   32    c.  A person misidentified by the department as an owner and/or person
   33  responsible but which entered into a voluntary commitment, other than  a
   34  voluntary agreement pursuant to title fourteen of this article, with the
   35  department  may  recover  from the remedial program transfer fund estab-
   36  lished by section ninety-seven-cccc of the state finance law  the  costs
   37  it shall have incurred that are reasonable in light of the action agreed
   38  to be undertaken.
   39    d. All monies collected by the state pursuant to this section shall be
   40  deposited into the remedial program transfer fund established by section
   41  ninety-seven-cccc of the state finance law.
   42    11.  a. Any person subject to an order issued pursuant to this section
   43  or any person that shall have entered into a  voluntary  agreement  with
   44  the  department under title fourteen of this article may seek in a court
   45  of competent jurisdiction contribution from any other person  who  is  a
   46  person  responsible  for the disposal of hazardous wastes at an inactive
   47  hazardous waste disposal site or at an  affected  site,  as  defined  by
   48  section  27-1401  of  this article, for costs incurred in developing and
   49  implementing a department-approved  inactive  hazardous  waste  disposal
   50  site  remedial  program  or  in negotiating and implementing a voluntary
   51  agreement. Nothing in this subdivision  shall  be  construed  to  limit,
   52  affect,  or  impair  any  protections  from  or limitations on liability
   53  provided by the department or otherwise.
   54    b. If the costs of measures undertaken at an inactive hazardous  waste
   55  disposal  site  or  at  an  affected  site for the purpose of addressing
   56  hazardous waste or petroleum are increased because of design  or  imple-
       S. 1409                            110                           A. 2109
 
    1  mentation considerations or alterations made for the purpose of accommo-
    2  dating, effecting, or advancing the redevelopment or reuse of such site,
    3  the  amount  of such increase shall not be recoverable under paragraph a
    4  of this subdivision. Examples of design or implementation considerations
    5  or  alterations  that  may  be  made  for  the purpose of accommodating,
    6  effecting, or advancing the redevelopment or reuse of  a  site  include,
    7  but  are  not  limited  to,  such measures as altering the type, amount,
    8  quality, or aesthetic character of materials used in  construction  from
    9  the  type, amount, quality, or aesthetic character of materials required
   10  to implement a remedial program or voluntary agreement at such site.
   11    c. Any other provision of this subdivision notwithstanding,  no  costs
   12  shall  be  deemed  unrecoverable  under  paragraph a of this subdivision
   13  because they were expended to achieve a higher level of  remediation  at
   14  an  inactive  hazardous  waste  disposal  site or affected site than the
   15  level required by the department.
   16    d. In any action or proceeding brought pursuant to  this  subdivision,
   17  the  defendant  shall  be  entitled to raise any statutory or common law
   18  defense that he or she may have.
   19    e. In resolving contribution claims brought pursuant to this  subdivi-
   20  sion, the court may allocate costs among liable parties using such equi-
   21  table factors as the court determines are appropriate.
   22    f.  No  action  for  contribution  pursuant  to  this provision may be
   23  commenced more than six years after the later of:
   24    (i) the date of judgment in any action under any law, state or  feder-
   25  al,  respecting the costs that are the subject of the claim for contrib-
   26  ution; or
   27    (ii) the date of the issuance of an order or agreement by the  depart-
   28  ment respecting the costs that are the subject of the claim for contrib-
   29  ution  or respecting activities the conduct of which caused the expendi-
   30  ture of the costs that are the subject of the claim for contribution.
   31    g. The court shall enter a declaratory judgment on liability for costs
   32  that will be binding on any subsequent  action  or  actions  to  recover
   33  costs  incurred in implementing a department-approved inactive hazardous
   34  waste disposal site remedial program, or  in  implementing  a  voluntary
   35  agreement under title fourteen of this article.
   36    h.  Nothing  contained  in this subdivision shall affect any rights to
   37  recovery of costs to which any party may  be  entitled  by  contract  or
   38  otherwise under law.
   39    12.  The department, by and through the commissioner, shall be author-
   40  ized to exempt a person from the requirement  to  obtain  any  state  or
   41  local permit or other authorization for any activity needed to implement
   42  an  inactive  hazardous waste disposal remedial program pursuant to this
   43  title; provided, that the activity is conducted in a manner which satis-
   44  fies all substantive technical requirements applicable to like  activity
   45  conducted pursuant to a permit.
   46    §  11.  The  environmental conservation law is amended by adding a new
   47  section 27-1314 to read as follows:
   48  § 27-1314. Covenant not to sue.
   49    1. After the successful implementation of an order  on  consent  which
   50  provides for the development and implementation of an inactive hazardous
   51  waste  disposal  site  remedial program, the person subject to the order
   52  shall submit to the department a written certification  prepared  by  an
   53  individual  licensed  or otherwise authorized in accordance with article
   54  one hundred forty-five of the education law to practice  the  profession
   55  of  engineering  who  shall have been in charge of the implementation of
   56  such remediation undertaken pursuant to such order substantiating  that,
       S. 1409                            111                           A. 2109
 
    1  at  a  minimum, such remedial activities satisfied the remedial require-
    2  ments for the site.
    3    2. Upon the department's receipt of such certification, the department
    4  shall  review the final engineering report and the data submitted pursu-
    5  ant to the order as well as any other relevant information regarding the
    6  site. The department shall provide the  person,  upon  its  satisfaction
    7  that  the  remedial requirements for the site have been achieved, with a
    8  covenant not to sue, binding upon the state, for any liability,  includ-
    9  ing any future liability or claim for the further remediation of hazard-
   10  ous  wastes  at  or  from  the  site that was the subject of such order,
   11  except that a person responsible for the site's remediation  as  of  the
   12  effective date of the consent order pursuant to applicable principles of
   13  statutory  and  common  law  liability  shall  not receive a release for
   14  natural resource damages that may be available under federal law.  Addi-
   15  tionally, the state nonetheless shall reserve all of its rights concern-
   16  ing, and such covenant shall not extend to, any further investigation or
   17  remedial action the department deems necessary, as a result of:
   18    a. a failure to comply with the terms and conditions of the order;
   19    b.  a  fraudulent  demonstration that the cleanup levels identified in
   20  the order were reached;
   21    c. a release or threatened release  at  the  site  subsequent  to  the
   22  effective date of the order;
   23    d.  a change in the site's use subsequent to the effective date of the
   24  order to a use requiring a lower level of residual contamination, unless
   25  additional remedial activities are undertaken which shall meet the stan-
   26  dard for protection of the public health and environment that applies to
   27  remedial actions for such use under this title; or
   28    e. information received, in whole or in part, after  the  department's
   29  execution of such order, which indicates that the remediation performed,
   30  or  to be performed, under such order will not be, or is not, protective
   31  of the public health or environment for such use of the site.
   32    3. The reservation contained in paragraph d of subdivision two of this
   33  section shall not be reserved in the event that a person remediates soil
   34  contamination to soil category 1, as that term is described in paragraph
   35  a of subdivision three of section 27-1316 of this title.
   36    4. The covenant not to sue  issued  pursuant  to  this  section  shall
   37  extend  to  the  person's  successors  or assigns through acquisition of
   38  title to the site to which the covenant applies  and  to  a  person  who
   39  develops  or otherwise occupies the site; provided that such persons act
   40  in good faith to adhere to the requirements of such  order  on  consent.
   41  However,  such covenant does not extend, and cannot be transferred, to a
   42  person who is responsible as of the date of the issuance of an order  on
   43  consent  for the remediation of hazardous waste at the site according to
   44  applicable principles of statutory or common law liability, unless  that
   45  person was party to the order on which such covenant was based. A notice
   46  of the order containing such covenant shall be recorded and indexed as a
   47  declaration  of  covenant in the office of the recording officer for the
   48  county or counties where such site is located in the  manner  prescribed
   49  by  article  nine of the real property law within thirty days of signing
   50  the order if the person is an owner or within thirty days  of  acquiring
   51  title to the site if the person is a prospective purchaser.
   52    5. The provisions of this title shall not affect an action or a claim,
   53  including  a  claim for contribution, that a person who complies with an
   54  order on consent executed by such person and  the  department  providing
   55  for  the  development  and implementation of an inactive hazardous waste
       S. 1409                            112                           A. 2109
 
    1  disposal site remedial program pursuant to this title has  or  may  have
    2  against a third party.
    3    6.  Nothing  in  this  section shall be construed to affect either the
    4  liability of any person with respect to any costs, damages, or  investi-
    5  gative or remedial activities that are not included in the order; or the
    6  department's  authority  to maintain an action or proceeding against any
    7  person who is not subject to the order.
    8    7. A person who has settled such person's liability to the  department
    9  under  this  subdivision shall not be liable for claims for contribution
   10  regarding matters addressed in  the  order.  Such  settlement  does  not
   11  discharge  any  of  the persons responsible under law to investigate and
   12  remediate the hazardous waste  unless  its  terms  so  provide,  but  it
   13  reduces  the  potential  liability  of  the  others by the amount of the
   14  settlement.
   15    8. Nothing in this section shall be construed to affect the  authority
   16  of the department to reach settlement with other persons consistent with
   17  its authority under applicable law.
   18    §  12.  Section  27-1315  of  the  environmental  conservation law, as
   19  amended by chapter 857 of the laws  of  1982,  is  amended  to  read  as
   20  follows:
   21  § 27-1315. Rules and regulations.
   22    1. The commissioner shall have the power to promulgate rules and regu-
   23  lations  necessary  and  appropriate  to  carry out the purposes of this
   24  title. Any such regulations shall include provisions which establish the
   25  procedures for a hearing pursuant to paragraph a of subdivision four  of
   26  section  27-1313  of  this  [article] title.   Any such provisions shall
   27  ensure a division of functions between the commissioner, the  staff  who
   28  present  the  case, and any hearing officers appointed. In addition, any
   29  such regulations shall set forth findings  to  be  based  on  a  factual
   30  record,  which  must  be  made before the commissioner determines that a
   31  significant threat to the  environment  exists.  Rules  and  regulations
   32  promulgated pursuant to this title shall be subject to the approval of a
   33  board,  which  shall  be  known as the inactive hazardous waste disposal
   34  site regulation review board, which shall have the same members,  rules,
   35  and procedures as the state environmental board.
   36    2.  Such rules and regulations of the department as shall be in effect
   37  on the effective date of this subdivision that shall have  been  promul-
   38  gated  to  carry  out  the  purposes of this title shall be deemed to be
   39  revised, as of the effective date of this subdivision,  to  include  the
   40  definition of "hazardous waste" as it appears in section 27-1301 of this
   41  title.
   42    §  13.  Section  27-1316  of  the  environmental  conservation  law is
   43  REPEALED and a new section 27-1316 is added to read as follows:
   44  § 27-1316. Soil cleanup levels.
   45    1. The commissioner shall establish a technical  advisory  panel.  The
   46  membership  of  the panel shall be appointed by the commissioner and the
   47  commissioner of health and shall include representation from the  public
   48  health  advocacy  community, the environmental advocacy community, citi-
   49  zens' organizations having among their purposes advocacy  on  behalf  of
   50  person affected by sites contaminated with hazardous waste and/or petro-
   51  leum,  the  business  community,  municipalities,  and  others as deemed
   52  appropriate by the commissioner. The commissioner and  the  commissioner
   53  of  the  department  of  health  shall  be  co-chairs of such panel. The
   54  appointed members shall receive one hundred dollars  per  diem,  not  to
   55  exceed  five  thousand dollars per annum compensation for their services
   56  as members of the panel. None of the appointed members shall be officers
       S. 1409                            113                           A. 2109
 
    1  or employees of any state department  or  agency,  provided,  that  such
    2  appointed  members shall be considered officers or employees of a public
    3  entity and shall be afforded such defense and  indemnification  provided
    4  pursuant  to  section  eighteen  of the public officers law. Each member
    5  shall have experience  in  risk  assessment  methodologies,  remediation
    6  technologies, or other appropriate scientific, technical, or other rele-
    7  vant  expertise  in  regard  to  the  remediation of contaminated sites.
    8  Staff services for the panel shall be  performed  by  personnel  of  the
    9  department  and/or  of  the  department  of  health,  and the reasonable
   10  expenses of the panel shall be paid from  any  funds  available  to  the
   11  department  and/or to the department of health, all as the co-chairs may
   12  direct. All meetings of the technical advisory panel shall  be  open  to
   13  the public. The recommendations of the technical advisory panel shall be
   14  subject to public comment.
   15    2.  The  panel  shall provide advice on the development of, and recom-
   16  mend, soil clean-up levels which provide for a  multi-category  approach
   17  for  the  remediation of soil contamination, as set forth in subdivision
   18  three of this section, at inactive hazardous waste disposal sites, sites
   19  subject to a voluntary agreement under title fourteen of  this  article,
   20  and  cleanup  and removal actions under article twelve of the navigation
   21  law.
   22    3. In the development of soil cleanup levels, the  technical  advisory
   23  panel  shall  consider  the  following as the basis for the soil cleanup
   24  levels: the cancer  and  non-cancer  human  health  effects;  background
   25  concentrations;  exposure to the same contaminant from other routes; the
   26  strength of the toxicological data base; sensitive populations,  includ-
   27  ing  children; protection of groundwater for its classified use, surface
   28  water,  air  (including  indoor  air);  and  protection  of   ecological
   29  resources,  including  fish  and  wildlife.  In addition, the cumulative
   30  effects of contaminants and the possibility that some  contaminants  may
   31  act  through  similar toxicological mechanisms shall be considered.  The
   32  experiences under the existing state remedial programs shall be  consid-
   33  ered.  The  goals  for  the  level  of risk associated with soil cleanup
   34  levels for individual contaminants are an excess cancer risk of  one  in
   35  one  million  for  carcinogenic end points and a hazard index of one for
   36  non-cancer end points for each soil category.
   37    a. Soil category 1: cleanup levels that will be protective  of  public
   38  health  and the environment that would allow the site to be used for any
   39  purpose  without  restriction  and  without  reliance  on  institutional
   40  controls or engineering controls.
   41    b.  Soil  category 2: cleanup levels that will be protective of public
   42  health and the environment for the site's current, intended, or  reason-
   43  ably  anticipated  residential,  commercial,  or industrial use and with
   44  consideration of use of institutional or engineering controls  to  reach
   45  such levels.
   46    c. Soil category 3: a process to determine cleanup levels that will be
   47  protective of public health and the environment using site specific data
   48  for the site's current, intended, or reasonably anticipated residential,
   49  commercial, or industrial use.
   50    4. The technical advisory panel shall submit its recommendations with-
   51  in  eighteen months from the date of the first meeting of such technical
   52  advisory panel.
   53    5. After the close of the public comment period on the recommendations
   54  of the technical advisory panel, the commissioner and  the  commissioner
   55  of health, where appropriate, shall promulgate regulations setting forth
   56  the  soil cleanup levels, considering the factors identified in subdivi-
       S. 1409                            114                           A. 2109
 
    1  sion three of this section, taking into consideration  such  recommenda-
    2  tions,  comments  received  on  such  recommendations  during the public
    3  comment period, and any other information deemed relevant by the depart-
    4  ment  and  the  department  of  health. Such regulations shall include a
    5  provision requiring that soil category 3 may be selected for the remedi-
    6  ation of a particular site only upon the commissioner's finding  that  a
    7  rational  basis  exists  therefor  and  that  such  remediation  will be
    8  adequately protective of the public health and the environment.
    9    6. The department shall determine cleanup levels for  contaminants  in
   10  the  soil  using  site  specific data until the commissioner promulgates
   11  rules and regulations pursuant to this section and thereafter shall  use
   12  the soil cleanup levels set forth in such rules and regulations, as they
   13  may be amended.
   14    §  14.  Article 27 of the environmental conservation law is amended by
   15  adding a new title 14 to read as follows:
   16                                  TITLE 14
   17                            VOLUNTARY CLEANUP ACT
   18  Section 27-1400. Declaration of policy and findings of fact.
   19          27-1401. Definitions.
   20          27-1403. Request for participation.
   21          27-1405. Determination of eligibility.
   22          27-1407. Voluntary agreement and work plan requirements.
   23          27-1409. Citizen participation/public notification.
   24          27-1411. Covenant not to sue.
   25          27-1413. Remediation certificate.
   26          27-1415. Payment of state costs.
   27          27-1417. Change of use.
   28          27-1419. Immunity.
   29          27-1421. Permit waivers.
   30          27-1423. Access to sites.
   31  § 27-1400. Declaration of policy and findings of fact.
   32    The legislature hereby declares and finds that, to advance the  policy
   33  of  the  state of New York to conserve, improve, and protect its natural
   34  resources and environment and control water, land, and air pollution  in
   35  order  to  enhance  the health, safety, and welfare of the people of the
   36  state and their overall economic and social well being, it is  appropri-
   37  ate  to  enact  this  Voluntary Cleanup Act to accomplish remediation of
   38  affected sites by affected persons without official compulsion;  and  it
   39  is  the  intent of the legislature that the provisions of this Voluntary
   40  Cleanup Act shall not be construed as limiting  or  otherwise  affecting
   41  any  authority  conferred  upon the department by any other provision of
   42  law. The remedial goal of the voluntary cleanup  program  shall  be  the
   43  protection of public health and the environment, with the minimum objec-
   44  tive  being  to  eliminate or mitigate all significant threats to public
   45  health and the environment  presented  by  the  hazardous  waste  and/or
   46  petroleum through proper application of scientific and engineering prin-
   47  ciples.
   48  § 27-1401. Definitions.
   49    1.  "Affected  person"  means a person whose request to participate in
   50  the voluntary cleanup program under this title has been accepted by  the
   51  department:
   52    a.  "Type A affected person" means an affected person who either:  (i)
   53  was the owner of the affected site  at  the  time  of  the  disposal  of
   54  hazardous  waste or discharge of petroleum or (ii) is otherwise a person
   55  responsible according to applicable principles of  statutory  or  common
   56  law  liability, unless such person's liability arises solely as a result
       S. 1409                            115                           A. 2109
 
    1  of such person's ownership or  operation  of  or  involvement  with  the
    2  affected site subsequent to the disposal of hazardous waste or discharge
    3  of petroleum.
    4    b.  "Type  B  affected  person"  means an affected person other than a
    5  "Type A affected person", including without limitation  a  person  whose
    6  liability arises solely as a result of such person's ownership or opera-
    7  tion of or involvement with the affected site subsequent to the disposal
    8  of hazardous waste or discharge of petroleum.
    9    2.  "Affected  site"  means an area or structure where hazardous waste
   10  and/or petroleum has been deposited, disposed of, placed,  or  otherwise
   11  come  to  be  located that is not a site on the National Priorities List
   12  established under authority of 42 U.S.C.A. chapter  103,  subchapter  1,
   13  nor  a  site  on the registry of inactive hazardous waste disposal sites
   14  under section 27-1305 of this article  and  given  a  classification  as
   15  described  in subparagraph one or two of paragraph b of subdivision four
   16  of such section unless the application for participation is received  no
   17  later than one hundred eighty days after the enactment of this title and
   18  the  applicant would qualify as a Type B affected person, nor subject to
   19  enforcement action, nor subject to a permit issued  pursuant  to  titles
   20  seven or nine of this article.
   21    3.  "Hazardous  waste"  means  hazardous  waste  as defined in section
   22  27-1301 of this article.
   23    4. "Interim remedial measure"  means  "remediation"  consisting  of  a
   24  discrete  set  of activities to address both emergency and non-emergency
   25  site conditions which can be undertaken without extensive  investigation
   26  and evaluation.
   27    5.  "Investigation"  means  all  those  activities to characterize the
   28  nature and extent of a release or threatened release of hazardous  waste
   29  and/or petroleum into the environment.
   30    6.  "Person"  means  an  individual, trust, firm, joint venture, joint
   31  stock company,  corporation,  limited  liability  company,  partnership,
   32  association, state, municipality, commission, political subdivision of a
   33  state, public benefit corporation or any interstate body.
   34    7.  "Petroleum"  means  petroleum  as  defined  in section one hundred
   35  seventy-two of the navigation law, even if appearing on the list promul-
   36  gated pursuant to section 37-0103 of this chapter.
   37    8. "Preliminary  environmental  assessment"  means  a  written  report
   38  submitted  as  part of a request to participate in the voluntary cleanup
   39  program within the department under this title which shall  contain  the
   40  information  described  in  subdivision  two  of section 27-1403 of this
   41  title.
   42    9. "Remediation" means the activities undertaken, except for "investi-
   43  gation" activities, to eliminate, remove,  abate,  control,  or  monitor
   44  health  and/or  environmental hazards or potential hazards in connection
   45  with an affected site or to treat or dispose of wastes and waste contam-
   46  inated materials from the site, including but not limited  to,  grading,
   47  contouring,  trenching,  grouting,  capping,  excavation,  transporting,
   48  incineration, chemical treatment, biological treatment, or  construction
   49  of leachate collection and treatment facilities.
   50    10.  "State costs" means all those costs, obligations, commitments, or
   51  undertakings associated with the administration or  oversight  responsi-
   52  bilities of the department, the department of health, or any other state
   53  agency attributable to carrying out the investigation and/or remediation
   54  of  an  affected  site under a voluntary agreement, as described in this
   55  title. Such expenses shall include administrative  expenses  (wages  and
       S. 1409                            116                           A. 2109
 
    1  salaries), fringe benefits, overhead, supplies and materials, equipment,
    2  travel, and utilities.
    3    11.  "Voluntary  agreement"  means an agreement executed in accordance
    4  with this title by an affected  person  and  the  department  concerning
    5  actual,  threatened, or suspected hazardous waste and/or petroleum pres-
    6  ent at or migrating from an affected site.
    7  § 27-1403. Request for participation.
    8    1. A person who  desires  to  participate  in  the  voluntary  cleanup
    9  program  under  this  title  concerning a particular affected site shall
   10  submit a request to the department.
   11    2. Such request shall be on a form  provided  by  the  department  and
   12  shall  contain  general  information  concerning  such  person  and such
   13  person's relation to the affected site, a description  of  the  affected
   14  site,  and  a  copy of a preliminary environmental assessment concerning
   15  such affected site that shall include, but not be limited to:
   16    a. a review of any  relevant  prior  environmental  studies,  property
   17  assessments, or geological studies of such affected site;
   18    b. a legal description of such affected site;
   19    c. the physical characteristics of such affected site;
   20    d.  the  compliance history of any operations at such affected site to
   21  the extent the history is known by such person;
   22    e. a review of any existing aerial photographs of such  affected  site
   23  that may indicate its prior uses;
   24    f. if possible, interviews with any employee who may have knowledge of
   25  environmental conditions at such affected site;
   26    g.  an  inspection  of  such affected site sufficient to evaluate site
   27  conditions and remedial needs;
   28    h. an identification of the past, current,  intended,  and  reasonably
   29  anticipated future uses of such affected site and its surroundings; and
   30    i.  any  other relevant information concerning the potential for human
   31  and environmental exposures to contamination at such affected site.
   32    3. The department shall determine whether such affected site should be
   33  included in the registry of inactive hazardous waste disposal  sites  as
   34  required  by  section  27-1305 of this article. If the department deter-
   35  mines that such affected site is eligible for inclusion in the  registry
   36  as  a  classification 1 or 2 site, and if the affected person commits to
   37  enter into a voluntary agreement pursuant to this title  which  requires
   38  the  elimination  or mitigation of all significant threats to the public
   39  health and environment posed by  the  hazardous  waste,  the  department
   40  shall  defer  including  the  affected  site  in  the registry and shall
   41  continue to defer such site for  so  long  as  the  affected  person  is
   42  engaged  in good faith negotiations to enter into such an agreement and,
   43  following its execution, is in compliance with the terms of  the  volun-
   44  tary agreement.
   45  § 27-1405. Determination of eligibility.
   46    1.  The  department  shall  use  its best efforts to notify the person
   47  requesting participation in the voluntary cleanup program  within  sixty
   48  days  after  receiving  such request pursuant to section 27-1403 of this
   49  title that such request is either accepted or rejected.
   50    2. The department shall reject such request if:
   51    a. the request does not contain the information required  pursuant  to
   52  subdivision two of section 27-1403 of this title in sufficient detail to
   53  assess the conditions of the affected site;
   54    b.  the  department  determines  that there is an action or proceeding
   55  against the person who is  requesting  participation  in  the  voluntary
   56  cleanup  program  that  is pending in any civil or criminal court in any
       S. 1409                            117                           A. 2109
 
    1  jurisdiction, or before any state or federal  administrative  agency  or
    2  body,  wherein  the state or federal government seeks the investigation,
    3  removal, or remediation of hazardous waste and/or petroleum,  or  penal-
    4  ties for the disposal of hazardous waste and/or petroleum; or
    5    c.  the  department, based on the preliminary environmental assessment
    6  and/or other information the department possesses, determines  that  the
    7  request  is  for  a site which does not meet the definition of "affected
    8  site" pursuant to section 27-1401 of this title.
    9    3. The department may reject such request  for  participation  if  the
   10  department  determines  that  the public interest would not be served by
   11  granting such request.
   12    4. If such request is rejected pursuant to paragraph b of  subdivision
   13  two  of  this section, the department shall provide to the person making
   14  such request, in writing, a list of the additional information  required
   15  for the department to determine eligibility under this title.
   16  § 27-1407. Voluntary agreement and work plan requirements.
   17    1.  a.  The  voluntary agreement shall include, but not be limited to,
   18  the following provisions:
   19    (i) one requiring  such  affected  person  to  pay  for  state  costs;
   20  provided,  however,  that  with  respect  to  an affected site which the
   21  department has determined constitutes a significant threat to the public
   22  health or environment, the department may include a provision  requiring
   23  the  affected  person  to  provide  a  technical  assistance  grant,  as
   24  described in subdivision three of section 27-1313 of  this  article  and
   25  under  the conditions described therein, to an eligible party in accord-
   26  ance with procedures established under such program, with  the  cost  of
   27  such a grant serving as an offset against such state costs;
   28    (ii) one resolving disputes arising from the evaluation, analysis, and
   29  oversight  of  the implementation of the work plan as described in para-
   30  graph b of this subdivision;
   31    (iii) one requiring an indemnification provision which holds the state
   32  harmless from any claim, suit,  action,  and  cost  of  every  name  and
   33  description  arising  out  of  or  resulting  from  the  fulfillment  or
   34  attempted fulfillment of  the  voluntary  agreement,  except  for  those
   35  claims,  suits, actions, and costs arising from the state's gross negli-
   36  gence or willful or intentional misconduct;
   37    (iv) one authorizing the department to terminate a voluntary agreement
   38  at any time during the implementation of such agreement if the  affected
   39  person  implementing  such  agreement fails to comply substantially with
   40  such agreement's terms and conditions;
   41    (v) one exempting such affected person from the requirement to  obtain
   42  any state or local permit or other authorization for any activity satis-
   43  fying the following criteria:
   44    (1)  the  activity  is  conducted on the affected site or on different
   45  premises that are under common control or are  contiguous  to  or  phys-
   46  ically  connected with the affected site and the activity manages exclu-
   47  sively hazardous waste and/or petroleum from such affected site,
   48    (2) the activity  satisfies  all  substantive  technical  requirements
   49  applicable to like activity conducted pursuant to a permit as determined
   50  by the department, and
   51    (3) the activity is conducted under such voluntary agreement;
   52    (vi)  one stating that the department shall not consider such affected
   53  person an operator of such affected site based solely upon execution  or
   54  implementation  of  such voluntary agreement for purposes of remediation
   55  liability;
       S. 1409                            118                           A. 2109
 
    1    (vii) a requirement that the  affected  person  conduct  investigation
    2  and/or  remediation  activities pursuant to one or more work plans which
    3  are approved by the department;
    4    (viii)  a  requirement that the affected person shall submit, upon the
    5  department's request, one or more remedial alternatives consistent  with
    6  soil  category  1  where the department has determined that the affected
    7  site constitutes a significant threat to the public health or the  envi-
    8  ronment; and
    9    (ix)  the  inclusion  of  other conditions considered necessary by the
   10  department concerning the effective and efficient implementation of this
   11  title, and, where the affected person is a type A affected  person,  the
   12  department  shall include provisions relating to recovery of state costs
   13  incurred before the effective date of such voluntary agreement.
   14    b. A work plan shall include, but not be  limited  to,  the  following
   15  requirements:
   16    (i)  a  work  plan  for  the  investigation of the affected site shall
   17  provide for the investigation and characterization  of  the  nature  and
   18  extent  of the contamination within the boundaries of the affected site;
   19  provided, however, that a type A affected person shall also be  required
   20  to  investigate  and characterize the nature and extent of contamination
   21  emanating from such affected site. A type B affected person must perform
   22  an exposure assessment consisting of an evaluation of  the  pathways  by
   23  which  a  receptor  could  be exposed to such contamination, in order to
   24  determine the risk to public health and the environment from any contam-
   25  ination emanating from such affected site.  The work plan shall  require
   26  that the affected person cause a final report to be prepared and submit-
   27  ted  to  the  department  that  identifies  the investigation activities
   28  completed pursuant to the work plan. Such final report,  at  a  minimum,
   29  shall:
   30    A.  fully  characterize  the nature and extent of contamination at the
   31  affected site: a type A affected person shall  also  fully  characterize
   32  the  nature  and  extent  of  contamination  that  has migrated from the
   33  affected site; and a type B affected person shall identify  the  results
   34  of the off-site exposure assessments;
   35    B.  state  whether  the  completed investigation has demonstrated that
   36  conditions at the affected site (i) require remediation in order to meet
   37  the remedial goal of the voluntary cleanup  program  or  (ii)  meet  the
   38  remedial  goal  of  the  voluntary cleanup program without necessity for
   39  remediation; and
   40    C. if the final report certifies that no remediation  is  required  to
   41  meet  the remedial goal of the voluntary cleanup program, then the final
   42  report shall also demonstrate the same  requirements  as  set  forth  in
   43  subdivision two of this section;
   44    (ii)  a work plan for the remediation of the affected site, other than
   45  a work plan for an interim  remedial  measure,  shall  provide  for  the
   46  development  and  implementation  of a remedial program for such contam-
   47  ination within the boundaries of such affected site; provided,  however,
   48  that  a type A affected person shall also be required to provide in such
   49  work plan for the development and implementation of a  remedial  program
   50  for  contamination  related to the affected site but located outside the
   51  boundaries of the affected site. The remedial goal of any such  remedial
   52  program  shall  be  the protection of public health and the environment,
   53  with the minimum objective being to eliminate or  mitigate  all  signif-
   54  icant  threats  to  public  health  and the environment presented by the
   55  hazardous waste and/or petroleum through proper application of scientif-
   56  ic and  engineering  principles,  and  such  remedial  program  must  be
       S. 1409                            119                           A. 2109
 
    1  selected  upon  due consideration of the evaluation factors set forth in
    2  paragraph b of subdivision one of section 27-1313 of this article.  Such
    3  work  plan  must  contain  an  analysis  that  such  proposed remedy was
    4  assessed using such evaluation factors. Such work plan must provide that
    5  the  soil  cleanup levels be consistent with the soil cleanup levels set
    6  forth in rules and regulations,  as  amended,  promulgated  pursuant  to
    7  section 27-1315 and subdivision five of section 27-1316 of this article;
    8  until  such  regulations are promulgated, the department shall determine
    9  cleanup levels for contaminants in soil using site  specific  data.  The
   10  department  may approve a work plan that includes institutional controls
   11  and/or engineering controls as components of an interim remedial measure
   12  or a remedial program, but only if the work plan requires the  owner  of
   13  such real property to annually submit to the department a written state-
   14  ment  by  an  individual  licensed or otherwise authorized in accordance
   15  with article one hundred forty-five of the education law to practice the
   16  profession of engineering, or by such other expert as the department may
   17  find acceptable certifying under penalty of perjury  that  the  institu-
   18  tional  controls  and  engineering  controls  employed to remediate such
   19  contamination are unchanged from the  previous  certification  and  that
   20  nothing  has  occurred  that  would  constitute  a violation of any such
   21  controls, and gives access to such real property  reasonable  under  the
   22  circumstances  to  evaluate  continued maintenance of such controls. The
   23  department shall establish and maintain a database with relevant  infor-
   24  mation  on such controls and shall include such information on its home-
   25  page on the internet and make  such  information  available  for  public
   26  inspection at the office of the county clerk or register for each county
   27  and  at the office of the town clerk for each town in Suffolk and Nassau
   28  counties;
   29    (iii) a work plan for remediation  pursuant  to  an  interim  remedial
   30  measure  shall contain such provisions as the department deems appropri-
   31  ate. The work plan shall require that the affected person cause a  final
   32  report  to  be  prepared and submitted to the department that identifies
   33  the activities completed pursuant to such work plan; and
   34    (iv) at any time during the evaluation of a proposed  work  plan,  the
   35  department  may  request  that  an  affected person submit additional or
   36  corrected information to the department. An affected person shall either
   37  comply with the request or withdraw such proposed work plan from consid-
   38  eration.
   39    2. For a work plan requiring remediation, the  affected  person  shall
   40  cause a final report to be prepared and submitted to the department that
   41  identifies  the  remediation  activities completed pursuant to such work
   42  plan. A final report for a work plan requiring remediation,  other  than
   43  an interim remedial measure, shall, at a minimum, demonstrate, as appro-
   44  priate, that:
   45    a.  there  is  no contamination by hazardous waste or petroleum of the
   46  soil, sediment, surface water, or  groundwater  on  or  underlying  such
   47  affected  site  or, if required by this title, such areas off-site which
   48  are or have been impacted by  on-site  contamination  in  concentrations
   49  exceeding  the  requirements for remediation set forth in such work plan
   50  for remediation of such affected site;
   51    b. the data submitted to the department demonstrates that the applica-
   52  ble remediation requirements set forth in the work  plan  have  been  or
   53  will  be achieved in accordance with the timeframes, if any, established
   54  in such work plan;
   55    c. the use restrictions, if any are required by the  voluntary  agree-
   56  ment, have been recorded and indexed as a declaration of restrictions in
       S. 1409                            120                           A. 2109
 
    1  the  office  of  the  recording officer for the county or counties where
    2  such affected site is located in the manner prescribed by  article  nine
    3  of  the real property law. Such declaration of restriction shall contain
    4  the  name  of  the record owner of such affected site along with tax map
    5  parcel number or the section, block, and lot  number  of  such  affected
    6  site; or
    7    d.  the  department  has  approved  a  plan submitted by such affected
    8  person for the proper operation, maintenance, and  monitoring  of  engi-
    9  neering controls, if any are required by such work plan, used to contain
   10  or control the contamination at or from such affected site.
   11    3. In the event that the affected person is not required by this title
   12  to  conduct an investigation or perform remediation outside the property
   13  boundaries of the affected site, then the department shall  require  the
   14  person  responsible  according  to applicable principles of statutory or
   15  common law liability, other than such affected person,  to  conduct  the
   16  off-site  investigation and remediation if hazardous waste and/or petro-
   17  leum that have migrated from the affected site pose a significant threat
   18  to public health or the environment.  If such responsible  person  fails
   19  to  undertake or undertakes and fails to complete such off-site investi-
   20  gation and/or remediation, the state shall use moneys from the  remedial
   21  program  transfer fund established pursuant to section ninety-seven-cccc
   22  of the state finance law to undertake the investigation  and/or  remedi-
   23  ation  of  such  contamination.   The state's costs incurred relative to
   24  such off-site contamination shall be  recoverable  from  the  person  or
   25  persons responsible.
   26    4.    The  commissioner  shall use best efforts to approve, modify, or
   27  reject a  proposed  work  plan  within  sixty  days  from  its  receipt;
   28  provided,  however,  that  the  commissioner  shall  use best efforts to
   29  approve, modify, or reject a proposed work plan for  remediation,  other
   30  than  a  work  plan  for  an interim remedial measure, within sixty days
   31  after the end of the comment period or the close of the  public  meeting
   32  provided by section 27-1409 of this title, whichever is later, and after
   33  evaluating any comments received.
   34    a.  If the commissioner rejects a proposed work plan, the commissioner
   35  shall notify the affected person and specify the reasons  for  rejecting
   36  same.
   37    b.  If  the commissioner approves or modifies such proposed work plan,
   38  the commissioner shall notify the affected person, in writing, that  the
   39  proposed  work  plan  has been approved or modified. If the commissioner
   40  requires a modification, the affected person may agree  to  modify  such
   41  proposed work plan or withdraw it from consideration.
   42    5.  The affected person shall execute a voluntary agreement that shall
   43  contain  the  matters set forth in this title. The affected person shall
   44  carry out the terms of the voluntary agreement.
   45    6. Nothing herein shall prohibit or limit the department  from  termi-
   46  nating  a  voluntary  agreement at any time during its implementation if
   47  the affected person subject to such voluntary agreement fails to  comply
   48  substantially with such agreement's terms and conditions.
   49    7.  Nothing herein shall require the department to enter into a volun-
   50  tary agreement with any person.
   51  § 27-1409. Citizen participation/public notification.
   52    1. The department shall place a notification of receipt of  a  request
   53  to  participate  in the voluntary cleanup program pursuant to this title
   54  in the environmental notice bulletin and a newspaper in  general  circu-
   55  lation  in  the  municipality wherein such affected site is located. The
   56  department shall also provide notice thereof in  writing  to  the  chief
       S. 1409                            121                           A. 2109
 
    1  executive  officer  of each county, city, town and village in which such
    2  affected site is located, the public water supplier which  services  the
    3  area  in  which  such  affected  site is located, and any person who has
    4  requested  to  be  placed on the site contact list. For purposes of this
    5  section "water supplier" means any public water system as such  term  is
    6  defined  for  the purposes of the sanitary code of the state of New York
    7  as authorized by section two hundred twenty-five of  the  public  health
    8  law.
    9    2.  Upon  the  department's  finalization  of a work plan for investi-
   10  gation, the department must notify individuals, groups and/or  organiza-
   11  tions  that  have expressed interest in or are affected by the work plan
   12  of such work plan, and must publish a notice in the environmental notice
   13  bulletin. Further, upon the satisfactory completion of the investigation
   14  performed under such voluntary agreement,  the  department  must  notify
   15  individuals, groups and/or organizations that have expressed interest in
   16  or  are  affected by the voluntary agreement and publish a notice in the
   17  environmental notice bulletin regarding such satisfactory completion.
   18    3. Before the department finalizes a proposed work  plan  for  remedi-
   19  ation,  other  than  a  work  plan  for an interim remedial measure, the
   20  department must notify individuals, groups, and organizations that  have
   21  expressed  interest  in or are affected by the proposed work plan of the
   22  proposed work plan for  remediation  and  publish  a  notice  requesting
   23  comments  concerning  the proposed work plan in the environmental notice
   24  bulletin. Such notice shall provide for a forty-five day public  comment
   25  period  following publication of the notice required under this section.
   26  The department shall hold a public meeting on the proposed work plan  if
   27  the  commissioner has found that the affected site constitutes a signif-
   28  icant threat to the public health or environment.
   29  § 27-1411. Covenant not to sue.
   30    1.  After the affected person has successfully completed the implemen-
   31  tation of a work plan and where such affected person  can  certify  that
   32  the remedial goal of the voluntary cleanup program, both on the affected
   33  site  and,  if  required by this title, such areas off-site which are or
   34  have been impacted by on-site contamination, has been achieved and  that
   35  the requirements of such work plan as well as the relevant provisions of
   36  paragraph  b  of  subdivision  two of section 27-1407 of this title have
   37  been satisfied, such affected person shall submit to  the  department  a
   38  written  certification  prepared  by an individual licensed or otherwise
   39  authorized in accordance with article  one  hundred  forty-five  of  the
   40  education  law  to practice the profession of engineering substantiating
   41  that the affected site meets the remedial goal of the voluntary  cleanup
   42  program  as  set  forth  in this title and that the requirements of such
   43  work plan as well as the relevant provisions of paragraph b of  subdivi-
   44  sion two of section 27-1407 of this title have been satisfied.
   45    2. Upon the department's receipt of such certification, the department
   46  shall review the final report, the certification, and the data submitted
   47  pursuant  to  the  voluntary  agreement,  as  well as any other relevant
   48  information regarding the affected site. The  department  shall  provide
   49  the affected person, upon its satisfaction that the remedial goal of the
   50  voluntary  cleanup program and the requirements of the work plan as well
   51  as the relevant provisions of paragraph b of subdivision two of  section
   52  27-1407  of this title for the affected site and, if required under this
   53  title, such areas off-site which are or have been  impacted  by  on-site
   54  contamination  have  been  achieved, with a covenant not to sue, binding
   55  upon the state, for any liability, including  any  future  liability  or
   56  claim for the further remediation of hazardous waste and/or petroleum at
       S. 1409                            122                           A. 2109
 
    1  or  from the affected site that was the subject of such voluntary agree-
    2  ment, except that a type A affected person shall not receive  a  release
    3  for  natural  resource  damages that may be available under federal law.
    4  Additionally,  the  state  nonetheless  shall  reserve all of its rights
    5  concerning, and such covenant shall not extend to, any further  investi-
    6  gation  and/or  remediation  the department deems necessary, as a result
    7  of:
    8    a. a failure to comply with the terms and conditions of the  voluntary
    9  agreement;
   10    b.  a  fraudulent  demonstration  that  the  cleanup levels identified
   11  pursuant to the voluntary agreement were reached;
   12    c. a release or threatened release at the affected site subsequent  to
   13  the effective date of the voluntary agreement;
   14    d.  a  change  in  the affected site's use subsequent to the effective
   15  date of the voluntary agreement to a use  requiring  a  lower  level  of
   16  residual  contamination,  unless  additional  remediation  is undertaken
   17  which shall meet the standard for protection of the  public  health  and
   18  environment that applies under this title; or
   19    e.  information  received, in whole or in part, after the department's
   20  execution of such voluntary agreement, which indicates that  the  activ-
   21  ities performed, or to be performed, under such voluntary agreement will
   22  not  be,  or are not, protective of the public health or environment for
   23  such use of the affected site.
   24    3. The reservation contained in paragraph d of subdivision two of this
   25  section shall not be reserved in  the  event  that  the  level  of  soil
   26  contamination  at  the affected site is less than that set forth in soil
   27  category 1, as that term is described  in  paragraph  a  of  subdivision
   28  three of section 27-1316 of this article.
   29    4.  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  volun-
   39  tary  agreement on which such covenant was based. A notice of the volun-
   40  tary agreement containing such covenant shall be recorded and indexed as
   41  a 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    5. 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    6.  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. 1409                            123                           A. 2109
 
    1  proceeding against any person who is not subject to the voluntary agree-
    2  ment.
    3    7.  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    8. 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    9. An affected person who implements a voluntary agreement executed by
   14  such affected person and the department pursuant to this title shall not
   15  be  held liable for claims for contribution concerning matters addressed
   16  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    2. Such application shall be on a form provided by the department  and
   28  shall be certified under penalty of perjury.
   29    3. The commissioner shall only issue a remediation certificate if such
   30  affected person is a type B affected person.
   31    4. Such remediation certificate shall state:
   32    a. that the affected person is a type B affected person;
   33    b.  that  the  affected person has satisfactorily completed the activ-
   34  ities required by the voluntary agreement and this title.
   35    5. A remediation certificate issued pursuant to subdivision  three  of
   36  this section may be modified or revoked by the commissioner upon a find-
   37  ing that:
   38    a.  the affected person has failed to comply with the terms and condi-
   39  tions of the voluntary agreement;
   40    b. the affected person made a misrepresentation  of  a  material  fact
   41  tending to demonstrate that it was qualified as a type B affected person
   42  or  that  the  cleanup levels identified in the voluntary agreement were
   43  reached; or
   44    c. there is good cause for such modification or revocation.
   45    6. Upon the commissioner's determination pursuant to subdivision three
   46  or five of this section, the commissioner  shall  provide  the  affected
   47  person  with  notice  of  such  determination and notice of the right to
   48  appeal such determination. The  commissioner's  determination  shall  be
   49  final  unless  a  hearing  is  requested  by  certified mail sent to the
   50  commissioner within thirty days after receiving notice of such  determi-
   51  nation.  After such hearing, the commissioner shall give notice of final
   52  determination to such affected person. The commissioner  may  promulgate
   53  regulations to effectuate the purposes of this section.
   54  § 27-1415. Payment of state costs.
   55    1.  Pursuant  to  timetables contained in the voluntary agreement, the
   56  affected person shall pay all state costs incurred  in  negotiating  and
       S. 1409                            124                           A. 2109
 
    1  overseeing  implementation  of  such  agreement.  In  addition, a type A
    2  affected person shall pay all costs incurred by  the  state  up  to  the
    3  effective date of such voluntary agreement.
    4    2.  Payment  of such state costs identified in subdivision one of this
    5  section shall be made to the remedial program transfer fund  established
    6  pursuant to section ninety-seven-cccc of the state finance law.
    7    3.  In  the  event  that  either the affected person or the department
    8  withdraws from a voluntary agreement before such agreement's completion,
    9  or upon completion of the activities undertaken pursuant to  the  volun-
   10  tary  agreement,  all  unexpended moneys which the affected person shall
   11  have paid into such account shall be reimbursed to the  affected  person
   12  after  a  final  accounting  of  all  claims upon such affected person's
   13  payments.
   14  § 27-1417. Change of use.
   15    1. At least sixty days before the  start  of  physical  alteration  or
   16  construction  constituting  a change of use at an affected site which is
   17  the subject of a covenant not to sue issued pursuant to section  27-1411
   18  of  this  title, or at least sixty days before a change of use involving
   19  any physical alteration or construction, as the case may be,  the  owner
   20  or  the  person  or  entity  proposing  to make such change of use shall
   21  provide written notification to the department.
   22    2. No person shall engage in any activity at an affected site  remedi-
   23  ated  pursuant  to  this  title that is not consistent with restrictions
   24  placed upon the use of the property, or that will, or that reasonably is
   25  anticipated to: prevent or  interfere  significantly  with  a  proposed,
   26  ongoing,  or  completed  project  under this title; or expose the public
   27  health or the environment to a significantly increased threat of harm or
   28  damage at such affected site.
   29    3. For the purposes of this section:
   30    a. "change of use" means the transfer of title to all or  part  of  an
   31  affected  site being addressed under this title, or any activity that is
   32  likely to disrupt or expose  hazardous  waste  and/or  petroleum  or  to
   33  increase  direct  human exposure to hazardous waste and/or petroleum; or
   34  any other conduct that will or may tend to significantly interfere  with
   35  an ongoing or completed project under this title.
   36    b.  "complete  notice"  means  a  notice  that adequately apprises the
   37  department of the contemplated change and how such change may affect the
   38  property's proposed, ongoing, or completed remediation including but not
   39  limited to the ability to implement the  engineering  and  institutional
   40  controls associated with the affected site's remediation.
   41  § 27-1419. Immunity.
   42    Section eight of the court of claims act or any other provision of law
   43  to  the contrary notwithstanding, the state shall be immune from liabil-
   44  ity and action with respect to any act or omission done in the discharge
   45  of the department's responsibilities pursuant to this  title;  provided,
   46  however,  that  this  section  shall  not  limit the liability which may
   47  otherwise exist for the unlawful, willful, or malicious  acts  or  omis-
   48  sions  on  the  part  of  the  state, state agencies, or their officers,
   49  employees, or agents; or for the ownership  or  responsibility  for  the
   50  disposal of hazardous waste and/or petroleum according to law.
   51  § 27-1421. Permit waivers.
   52    The  department,  by and through the commissioner, shall be authorized
   53  to exempt a person from the requirement to obtain  any  state  or  local
   54  permit  or  other  authorization  for any activity needed to implement a
   55  program for the investigation  and/or  remediation  of  hazardous  waste
   56  and/or  petroleum;  provided  that the activity is conducted in a manner
       S. 1409                            125                           A. 2109
 
    1  which satisfies all substantive  technical  requirements  applicable  to
    2  like activity conducted pursuant to a permit.
    3  § 27-1423. Access to sites.
    4    The  department,  by and through the commissioner, shall be authorized
    5  to:
    6    1. Require that any person permit a duly designated officer or employ-
    7  ee of the department or  of  a  municipal  corporation,  or  any  agent,
    8  consultant,  or  contractor  of  the department or of a municipal corpo-
    9  ration, or any other person, including an employee,  agent,  consultant,
   10  or  contractor  of  a  responsible person acting at the direction of the
   11  department, so authorized in writing by the commissioner, to enter  upon
   12  any  property  which  has  or  may have been the site of hazardous waste
   13  and/or petroleum disposal, and/or areas near such site, for the  follow-
   14  ing purposes:
   15    a. to inspect and take samples of such hazardous waste and/or petrole-
   16  um and/or environmental media, utilizing such sampling methods as may be
   17  necessary  or appropriate, including without limitation soil borings and
   18  monitoring wells; provided,  that  no  sampling  methods  involving  the
   19  substantial  disturbance  of  the ground surface of such property may be
   20  utilized until after a minimum of ten days' written notice thereof shall
   21  have been provided to the owner and operator and occupant of such  prop-
   22  erty,  if  identifiable  by  reasonable efforts, unless the commissioner
   23  makes a written determination  that  such  notice  will  not  allow  the
   24  protection  of  the  public health or the environment, in which case two
   25  days' written notice shall be sufficient;
   26    b. to implement the  investigation  and/or  remediation  of  hazardous
   27  waste and/or petroleum and/or environmental media; provided that no such
   28  work may be undertaken until after a minimum of ten days' written notice
   29  thereof  shall have been provided to the owner and operator and occupant
   30  of such property, if identifiable  by  reasonable  efforts,  unless  the
   31  commissioner  makes  a  written  determination that such notice will not
   32  allow the protection of the public health or the environment,  in  which
   33  case two days' written notice shall be sufficient.
   34    2. a. Require that any person furnish to the department, in a form and
   35  manner  as  prescribed  by  the  department, information relating to the
   36  current and past hazardous waste and/or petroleum generation, treatment,
   37  storage, disposal, and/or transportation activities of  such  person  or
   38  any  other  person  now or formerly under the control of such person; in
   39  the event such person cannot comply therewith, in whole or in part, such
   40  person shall  furnish  to  the  department  information  describing  all
   41  efforts  made  by  such  person  to comply therewith; any information so
   42  furnished to the department shall be considered a  "written  instrument"
   43  as defined in subdivision three of section 175.00 of the penal law;
   44    b. Require that any person permit a duly designated officer or employ-
   45  ee  of  the  department at all reasonable times to have access to and to
   46  copy all books, papers, documents, and records relating to  the  current
   47  and  past  hazardous waste and/or petroleum generation, treatment, stor-
   48  age, disposal, and/or transportation activities of such  person  or  any
   49  person now or formerly under the control of such person;
   50    c.  Require,  by  subpoena  issued  in the name of the department, the
   51  production of books, papers,  documents,  and  other  records,  and  the
   52  rendition  of  testimony by deposition under oath of any person relating
   53  to the current and past hazardous  waste  and/or  petroleum  generation,
   54  treatment,  storage,  disposal, and/or transportation activities of such
   55  person or any person now or formerly under the control of  such  person;
   56  such  subpoenas and depositions shall be regulated by the civil practice
       S. 1409                            126                           A. 2109
 
    1  law and rules; the commissioner may invoke the  powers  of  the  supreme
    2  court of the state of New York or any other court of competent jurisdic-
    3  tion to compel compliance therewith.
    4    §  15. Subdivision 8 of section 52-0101 of the environmental conserva-
    5  tion law, as added by chapter 512 of the laws of  1986,  is  amended  to
    6  read as follows:
    7    8.  "Hazardous  waste"  shall  have the definition set forth in [title
    8  nine of article twenty-seven] section 27-1301 of this chapter.
    9    § 16. Subdivision 1 of section 52-0103 of the environmental  conserva-
   10  tion  law,  as  amended  by chapter 9 of the laws of 1994, is amended to
   11  read as follows:
   12    1. For remediation of hazardous waste sites, as  set  forth  in  title
   13  three of this article and for the closure of municipal landfills, as set
   14  forth  in  title five of article fifty-four of this chapter, one billion
   15  two hundred million dollars, of which[: (i)] up to one  hundred  million
   16  dollars shall be made available for state assistance payments toward the
   17  cost  of  the closure of municipal landfills, as set forth in title five
   18  of article fifty-four of this chapter; [and (ii) up to one hundred thou-
   19  sand dollars  shall  be  made  available  for  the  study  of  hazardous
   20  substance  waste  disposal  sites, as defined in section 27-1316 of this
   21  chapter;] and
   22    § 16-a. Subdivision 1 of section 54-0503 of the environmental  conser-
   23  vation  law,  as added by chapter 610 of the laws of 1993, is amended to
   24  read as follows:
   25    1. The landfill site has not been classified pursuant to  subparagraph
   26  one  or  two of paragraph b of subdivision [four] two of section 27-1305
   27  of this chapter. Sites which have been removed  from  the  registry  may
   28  apply for state assistance payments.
   29    §  17. Subdivision 7 of section 56-0101 of the environmental conserva-
   30  tion law, as added by chapter 413 of the laws of  1996,  is  amended  to
   31  read as follows:
   32    7.  "Environmental restoration project" means a project to investigate
   33  or to remediate hazardous substances [located on real property  held  in
   34  title by a municipality,] pursuant to title five of this article.
   35    §  18. Section 56-0502 of the environmental conservation law, as added
   36  by chapter 413 of the laws of 1996, is amended to read as follows:
   37  § 56-0502. Definitions.
   38    [For] 1. "Municipality", for purposes of this title  ["municipality"],
   39  shall  have the same meaning as provided in subdivision [twelve] fifteen
   40  of section 56-0101 of this article, except  that  such  term  shall  not
   41  refer  to  a  municipality  that generated, transported, or disposed of,
   42  arranged for, or that caused the generation, transportation, or disposal
   43  of hazardous substance located at real property proposed to be  investi-
   44  gated or to be remediated under an environmental restoration project.
   45    2.  "Cost", for purposes of this title, shall have the same meaning as
   46  provided in subdivision four of section 56-0101 of this article,  except
   47  that  such  term shall not include the requirement to reduce the cost of
   48  an approved project in accordance with any federal or  state  funds  for
   49  the project received or to be received by the municipality.
   50    3.  "Environmental  restoration  investigation  project"  shall mean a
   51  project, undertaken in accordance with the requirements of  this  title,
   52  to  investigate  hazardous  substances located in, on, or emanating from
   53  real property either held in title by a municipality or  for  which  fee
   54  title may be acquired by a municipality.
   55    4.  "Environmental  restoration  remediation  project"  shall  mean  a
   56  project, undertaken in accordance with the requirements of  this  title,
       S. 1409                            127                           A. 2109
 
    1  to remediate hazardous substances located in, on, or emanating from real
    2  property held in title by a municipality.
    3    5. "State assistance", for purposes of this title, shall mean:
    4    (a) in the case of a contract authorized by subdivision one of section
    5  56-0503  of this title, payments made to a municipality to reimburse the
    6  municipality for the state share of the costs incurred  by  the  munici-
    7  pality to undertake an environmental restoration project;
    8    (b)  in  the  case  of  a  contract authorized by subdivision one-a of
    9  section 56-0503 of this title, payments made for the benefit of a  muni-
   10  cipality  for  the  state  share  of  the costs incurred by the state to
   11  undertake an environmental restoration project.
   12    § 19. Section 56-0503 of the environmental conservation law, as  added
   13  by chapter 413 of the laws of 1996, is amended to read as follows:
   14  § 56-0503. Environmental restoration projects; state assistance.
   15    1.  The  commissioner may enter into a contract with a municipality to
   16  provide state assistance to such municipality to undertake  an  environ-
   17  mental  restoration project.  The amount of state assistance payment for
   18  such project shall be up to an amount of [seventy-five]:
   19    (a) ninety percent of the eligible costs of such project,  subject  to
   20  the provisions set forth in paragraph (b) of this subdivision;
   21    (b)  one  hundred  percent  of  the  eligible costs of any remediation
   22  directed by the department to be undertaken outside  the  boundaries  of
   23  the  real  property  that  is  subject  to  an environmental restoration
   24  project approved by the department.
   25    1-a. The commissioner may enter into a contract with a municipality to
   26  undertake an environmental restoration project if, in the discretion  of
   27  the  commissioner,  it  is  cost-effective  for the department to do so,
   28  considering such factors as may be appropriate.   The  amount  of  state
   29  assistance payment for such project shall be up to an amount of:
   30    (a)  ninety  percent of the eligible costs of such project, subject to
   31  the provisions set forth in paragraph (b) of this subdivision;
   32    (b) one hundred percent of  the  eligible  costs  of  any  remediation
   33  undertaken  outside  the boundaries of the real property that is subject
   34  to an environmental restoration project.
   35    2. In addition to such other terms and conditions that the commission-
   36  er may deem to be appropriate, [such] a contract authorized by  subdivi-
   37  sion one of this section shall provide as follows:
   38    (a)  An  estimate  of  the  cost  of such project as determined by the
   39  commissioner at the time of such contract's execution;
   40    (b) An agreement by the commissioner  to  periodically  reimburse  the
   41  municipality  for  eligible  costs  incurred during the progress of such
   42  project.  Such payments shall be subject to final computation and deter-
   43  mination of the total state assistance share of the  eligible  costs  of
   44  the entire environmental restoration project;
   45    (c) A provision [providing] that if [any federal payments], in accord-
   46  ance  with  the  required departmental approval of any settlement with a
   47  responsible party, any  responsible  party  payments[,  and/or  payments
   48  received  from  the disposition of the real property subject to an envi-
   49  ronmental restoration project] become  available  to  the  municipality,
   50  before,  during  or after the completion of an environmental restoration
   51  project, which were not included when the  state  share  was  calculated
   52  pursuant  to  this section, the state assistance share shall be recalcu-
   53  lated, and the municipality shall pay to the state, for deposit into the
   54  environmental restoration project account of the hazardous waste remedi-
   55  al fund established under section ninety-seven-b of  the  state  finance
   56  law,  the  difference  between the original state assistance payment and
       S. 1409                            128                           A. 2109
 
    1  the recalculated state share.  Recalculation of the state share shall be
    2  done each time a [federal payment,]  payment from a responsible  party[,
    3  or  payment  received from the disposition of such property] is received
    4  by the municipality;
    5    (d)    A  provision  that  if  any  monies  received from [any federal
    6  payments, payments from a responsible party,  and/or  payments  received
    7  from] the disposition of [such property] the real property subject to an
    8  environmental restoration project exceed the municipality's cost of such
    9  property, including taxes owed to the municipality upon acquisition, and
   10  the  municipality's  cost  of the environmental restoration project, the
   11  amount of such excess necessary to reimburse the state of New  York  for
   12  the state assistance provided to the municipality under this title shall
   13  be  [divided equally between the municipality and the state of New York,
   14  the state share of which shall be deposited] paid to the  state  of  New
   15  York  for  deposit into the environmental restoration project account of
   16  the hazardous waste remedial fund established under section  ninety-sev-
   17  en-b of the state finance law;
   18    (e)    An  agreement by the municipality to proceed expeditiously with
   19  and complete such project in accordance with plans approved for  payment
   20  of the municipality's share of such project's cost;
   21    (f)  An agreement by the municipality that it shall prepare and imple-
   22  ment a public participation plan [prior to remedial activities undertak-
   23  en pursuant to this section. The] for environmental restoration projects
   24  undertaken pursuant to this title. The requirements of the plan shall be
   25  governed by decision of the municipality to proceed with remediation  of
   26  the  property under this title. However, in all cases, implementation of
   27  the plan shall be completed as part of the project. In those cases where
   28  the municipality does not intend to  proceed  with  remediation  of  the
   29  property, the plan shall provide timely and accessible disclosure of the
   30  results  of  the  investigation to the interested public. The plan shall
   31  provide for adequate public notice of the availability of  the  investi-
   32  gation results; an opportunity for submission of written comments; and a
   33  filing  of a notice of the results of the investigation as authorized by
   34  subdivision three of section three hundred sixteen-b of the real proper-
   35  ty law. Where the municipality intends to proceed  with  remediation  of
   36  the  property under this title, the plan shall provide opportunities for
   37  early, inclusive participation prior to the  selection  of  a  preferred
   38  course of action, facilitate communication, including dialogue among the
   39  municipality,  the  department,  and  the interested public, and provide
   40  timely and accessible disclosure  of  information.  At  a  minimum,  the
   41  design  of  the  plan shall take into account the scope and scale of the
   42  proposed environmental restoration remediation project, local  interest,
   43  and  other  relevant  factors. The plan shall also provide for: adequate
   44  public notice of the availability of a draft remedial plan; a forty-five
   45  day period for submission of written comments; a public hearing on  such
   46  plan  if substantive issues are raised by members of the affected commu-
   47  nity; and technical  assistance  if  so  requested  by  members  of  the
   48  affected  community.  Provided,  however,  that the requirements of this
   49  subdivision shall not apply to interim remedial measures  undertaken  as
   50  part  of an environmental restoration project [to address emergency site
   51  conditions]. In such instance, the department or such persons implement-
   52  ing the interim remedial measure or making  the  request  shall  conduct
   53  public  participation  activities  as the department deems necessary and
   54  appropriate under such circumstances.
   55    (g) An agreement by the municipality that it shall put into place  any
   56  engineering  and/or institutional controls (including deed restrictions)
       S. 1409                            129                           A. 2109
 
    1  that the department may deem necessary to allow the contemplated use  to
    2  proceed,  that  such  engineering and/or institutional controls shall be
    3  binding on such municipality, any successor in title,  and  any  lessees
    4  and  that any successors in title and any lessees cannot challenge state
    5  enforcement of such controls;
    6    (h) In the event that such engineering controls  and/or  institutional
    7  controls  are  necessary,  the  municipality and its successors in title
    8  shall agree to develop a plan which ensures that such engineering and/or
    9  institutional controls shall be continually  maintained  in  the  manner
   10  required  by  the department. Such plan shall be approved by the depart-
   11  ment.  Failure to implement the plan or  maintain  such  controls  shall
   12  constitute  a  violation  of  such  contract and shall terminate for the
   13  duration of such failure the protection afforded under  subdivision  one
   14  of section 56-0509 of this title;
   15    (i)  In  the  event  that deed restrictions are required, such munici-
   16  pality shall agree to cause such deed restrictions to  be  recorded  and
   17  indexed  as  declarations of restrictions in the office of the recording
   18  officer of the county or counties where the  real  property  subject  to
   19  such   environmental  restoration  project  is  located  in  the  manner
   20  prescribed by article nine of the real property law. Such declaration of
   21  restriction shall contain the name of the owner of record of such  prop-
   22  erty,  along  with  the tax map parcel number or the section, block, and
   23  lot number of such property; and
   24    (j)  A provision that exempts a  municipality  and  any  successor  in
   25  title,  lender,  or  lessee  from the requirement to obtain any state or
   26  local permit or other authorization for any activity needed to implement
   27  [such] a project [that is conducted on the real property subject to such
   28  project so long as] to investigate  or  remediate  hazardous  substances
   29  pursuant  to  this  title;  provided that the activity is conducted in a
   30  manner which satisfies all substantive technical requirements applicable
   31  to like activity conducted pursuant to a permit.
   32    3. In addition to such other terms and conditions that the commission-
   33  er may deem to be appropriate,  a  contract  authorized  by  subdivision
   34  one-a of this section shall provide as follows:
   35    (a)  An  estimate  of  the  cost  of such project as determined by the
   36  commissioner at the time of such contract's execution;
   37    (b) An agreement by the municipality  to  periodically  reimburse  the
   38  state  for  eligible costs incurred during the progress of such project.
   39  Such payments shall be subject to final computation and determination of
   40  the total state assistance share of the eligible  costs  of  the  entire
   41  environmental restoration project;
   42    (c)  A provision that if, in accordance with the required departmental
   43  approval of any settlement with a  responsible  party,  any  responsible
   44  party  payments  become available to the municipality, before, during or
   45  after the completion of an environmental restoration project, which were
   46  not included when the  state  share  was  calculated  pursuant  to  this
   47  section, the state assistance share shall be recalculated, and the muni-
   48  cipality  shall  pay  to  the  state, for deposit into the environmental
   49  restoration project account of the hazardous waste remedial fund  estab-
   50  lished  under  section  ninety-seven-b  of  the  state  finance law, the
   51  difference between the original state assistance payment and the  recal-
   52  culated state share. Recalculation of the state share shall be done each
   53  time a payment from a responsible party is received by the municipality;
   54    (d)  A  provision  that if any monies received from the disposition of
   55  the real property subject to an environmental restoration project exceed
   56  the municipality's cost of such property, including taxes  owed  to  the
       S. 1409                            130                           A. 2109
 
    1  municipality  upon acquisition, and the municipality's cost of the envi-
    2  ronmental restoration project, the amount of such  excess  necessary  to
    3  reimburse the state of New York for the state assistance provided to the
    4  municipality under this title shall be paid to the state of New York for
    5  deposit  into  the  environmental  restoration  project  account  of the
    6  hazardous waste remedial fund established under  section  ninety-seven-b
    7  of the state finance law;
    8    (e)  An agreement by the municipality that it shall prepare and imple-
    9  ment a public participation plan for environmental restoration  projects
   10  undertaken pursuant to this title. The requirements of the plan shall be
   11  governed  by  decision  of the department to proceed with remediation of
   12  the property under this title. However, in all cases, implementation  of
   13  the plan shall be completed as part of the project. In those cases where
   14  the  department does not intend to proceed with remediation of the prop-
   15  erty, the plan shall provide timely and  accessible  disclosure  of  the
   16  results  of  the  investigation to the interested public. The plan shall
   17  provide for adequate public notice of the availability of  the  investi-
   18  gation results; an opportunity for submission of written comments; and a
   19  filing  of a notice of the results of the investigation as authorized by
   20  subdivision three of section three hundred sixteen-b of the real proper-
   21  ty law. Where the department intends to proceed with remediation of  the
   22  property  under  this  title,  the  plan shall provide opportunities for
   23  early, inclusive participation prior to the  selection  of  a  preferred
   24  course of action, facilitate communication, including dialogue among the
   25  municipality,  the  department,  and  the interested public, and provide
   26  timely and accessible disclosure  of  information.  At  a  minimum,  the
   27  design  of  the  plan shall take into account the scope and scale of the
   28  proposed environmental restoration remediation project, local  interest,
   29  and  other  relevant factors. The plan shall also provide for:  adequate
   30  public notice of the availability of a draft remedial plan; a forty-five
   31  day period for submission of written comments; a public hearing on  such
   32  plan  if substantive issues are raised by members of the affected commu-
   33  nity; and technical  assistance  if  so  requested  by  members  of  the
   34  affected  community.  Provided,  however,  that the requirements of this
   35  subdivision shall not apply to interim remedial measures  undertaken  as
   36  part  of  an  environmental  restoration  project. In such instance, the
   37  department or such persons implementing the interim remedial measure  or
   38  making  the request shall conduct public participation activities as the
   39  department deems necessary and appropriate under such circumstances;
   40    (f) An agreement by the municipality that it will allow the department
   41  to put into place any engineering controls that the department may  deem
   42  necessary  to  allow  the contemplated use to proceed, that it shall put
   43  into place any institutional controls (including deed restrictions) that
   44  the department may deem necessary  to  allow  the  contemplated  use  to
   45  proceed,  that  such  engineering and/or institutional controls shall be
   46  binding on such municipality, any successor in title,  and  any  lessees
   47  and  that any successors in title and any lessees cannot challenge state
   48  enforcement of such controls;
   49    (g) In the event that such engineering controls  and/or  institutional
   50  controls  are  necessary,  the  municipality and its successors in title
   51  shall agree to develop a plan which ensures that such engineering and/or
   52  institutional controls shall be continually  maintained  in  the  manner
   53  required  by  the department. Such plan shall be approved by the depart-
   54  ment. Failure to implement the plan  or  maintain  such  controls  shall
   55  constitute  a  violation  of  such  contract and shall terminate for the
       S. 1409                            131                           A. 2109
 
    1  duration of such failure the protection afforded under  subdivision  one
    2  of section 56-0509 of this title;
    3    (h)  In  the  event  that deed restrictions are required, such munici-
    4  pality shall agree to cause such deed restrictions to  be  recorded  and
    5  indexed  as  declarations of restrictions in the office of the recording
    6  officer of the county or counties where the  real  property  subject  to
    7  such   environmental  restoration  project  is  located  in  the  manner
    8  prescribed by article nine of the real property law. Such declaration of
    9  restriction shall contain the name of the owner or record of such  prop-
   10  erty,  along  with  the tax map parcel number or the section, block, and
   11  lot number of such property; and
   12    (i) A provision that exempts  a  municipality  and  any  successor  in
   13  title,  lender,  or  lessee  from the requirement to obtain any state or
   14  local permit or other authorization for any activity needed to implement
   15  a project to investigate or remediate hazardous substances  pursuant  to
   16  this  title;  provided  that the activity is conducted in a manner which
   17  satisfies all substantive  technical  requirements  applicable  to  like
   18  activity conducted pursuant to a permit.
   19    §  20. Section 56-0505 of the environmental conservation law, as added
   20  by chapter 413 of the laws of 1996, is amended to read as follows:
   21  § 56-0505. Environmental restoration projects; criteria.
   22    1. The department shall determine the eligibility of an  environmental
   23  restoration project for state assistance under this title based upon the
   24  following criteria:
   25    (a) the benefit to the environment realized by the expeditious remedi-
   26  ation of the property proposed to be subject to such project;
   27    (b)  the  economic benefit to the state by the expeditious remediation
   28  of the property proposed to be subject to such project; and
   29    (c) the potential opportunity of the property proposed to  be  subject
   30  to such project to be used for public recreational purposes[; and
   31    (d)  the opportunity for other funding sources to be available for the
   32  remediation of such property, including, but not limited to, enforcement
   33  actions against responsible parties  (other  than  the  municipality  to
   34  which  state assistance was provided under this title; or a successor in
   35  title, lender, or lessee who was not otherwise a responsible party prior
   36  to such municipality taking title to  the  property),  state  assistance
   37  payments  pursuant  to  title  thirteen  of article twenty-seven of this
   38  chapter, and the existence of private parties willing to remediate  such
   39  property using private funding sources. Highest priority shall be grant-
   40  ed to projects for which other such funding sources are not available].
   41    2.  The department shall not enter into a contract with a municipality
   42  pursuant to section 56-0503 for an environmental restoration project for
   43  any site listed in the registry of inactive hazardous waste sites  under
   44  section  27-1305 of this chapter and given a classification as described
   45  in subparagraph one or two of paragraph b of subdivision [four]  two  of
   46  such section 27-1305.
   47    3.  The  remediation objective of an environmental restoration remedi-
   48  ation project shall meet the same  standard  for  protection  of  public
   49  health  and  the environment that applies to remedial actions undertaken
   50  pursuant to section 27-1313 of this chapter.
   51    4. [After completion of such project, the  municipality  may  use  the
   52  property  for  public purposes or may dispose of it. If the municipality
   53  shall dispose of such property by sale  to  a  responsible  party,  such
   54  party  shall pay to such municipality, in addition to such other consid-
   55  eration, an amount of money constituting the amount of state  assistance
   56  provided  to the municipality under this title plus accrued interest and
       S. 1409                            132                           A. 2109
 
    1  transaction costs and the municipality shall deposit that money into the
    2  environmental restoration project account of the hazardous waste remedi-
    3  al fund established under section ninety-seven-b of  the  state  finance
    4  law]  Property  may  continue to be used for the purpose for which it is
    5  being  used  prior  to  achievement  of  the  environmental  restoration
    6  project's  objectives  if  the  department  determines that the existing
    7  state of contamination does not pose a risk sufficient to prohibit  such
    8  use  from  continuing, giving due regard to human health and protection,
    9  and if the department determines that such use does not  interfere  with
   10  the environmental restoration project.
   11    5.  In  the  event  that [such] an environmental restoration project's
   12  remediation objective shall not have been attained to  the  department's
   13  satisfaction at the time of the municipality's disposition of such prop-
   14  erty, such municipality shall be liable to ensure that such objective is
   15  attained within the time called for in the state assistance contract.
   16    6.  If  the municipality shall dispose of property subject to an envi-
   17  ronmental restoration project by sale to a responsible party, such party
   18  shall pay to such municipality, in addition to such other consideration,
   19  an amount of money constituting the amount of state assistance  provided
   20  to  the  municipality  under this title plus accrued interest and trans-
   21  action costs, which the municipality shall then pay  to  the  state  for
   22  deposit  into  the  environmental  restoration  project  account  of the
   23  hazardous waste remedial fund established under  section  ninety-seven-b
   24  of the state finance law.
   25    §  21. Section 56-0507 of the environmental conservation law, as added
   26  by chapter 413 of the laws of 1996, is amended to read as follows:
   27  § 56-0507. Recovery of state assistance.
   28    1. A municipality receiving state assistance under this  title  under-
   29  takes  an  environmental  restoration project as agent of the state with
   30  respect to the incurrence of eligible costs.
   31    2. The state shall make all reasonable efforts  to  recover  the  full
   32  amount  of  any state assistance provided under this title through liti-
   33  gation brought under this section or other statute or under  the  common
   34  law,  or through cooperative agreements, with responsible parties (other
   35  than the municipality to which state assistance was provided under  this
   36  title;  or a successor in title, lender, or lessee who was not otherwise
   37  a responsible party prior to the  [municipality]  municipality's  taking
   38  title  to  such  property).  Notwithstanding  any requirement under this
   39  section, the state may elect not to recover all or any  portion  of  its
   40  costs  from  a  party  responsible according to applicable principles of
   41  statutory or common law liability where such  party's  liability  arises
   42  solely from ownership or operation of the subject property subsequent to
   43  the disposal of hazardous substances at such property.
   44    3. Any and all monies recovered or reimbursed pursuant to this section
   45  shall be deposited into the environmental restoration project account of
   46  the  hazardous  waste  [remediation]  remedial  fund  established  under
   47  section ninety-seven-b of the state finance law.
   48    § 22. Subdivisions 1, 2, 3 and 5 of section 56-0509  of  the  environ-
   49  mental  conservation  law,  as added by chapter 413 of the laws of 1996,
   50  are amended to read as follows:
   51    1. (a) Notwithstanding any  other  provision  of  law  and  except  as
   52  provided  in  subdivision  two  of  this section and in paragraph (h) of
   53  subdivision two of section 56-0503 of this title,  the  following  shall
   54  not  be  liable  to  the state upon any statutory or common law cause of
   55  action, or to any person upon any statutory cause of action arising  out
   56  of the presence of any hazardous substance in or on property at any time
       S. 1409                            133                           A. 2109
 
    1  before  the  effective  date of a contract entered into pursuant to this
    2  title:
    3    (i)  a  municipality  receiving  state  assistance under this title to
    4  undertake an environmental restoration project and  complying  with  the
    5  terms and conditions of the contract providing such assistance; and
    6    (ii) a successor in title to the real property subject to such project
    7  where  the  municipality  holds  or held title to the real property; any
    8  lessee of such property; and any person that provides financing to  such
    9  party relative to the remediation, restoration, or redevelopment of such
   10  property[,];  provided  that  such successor in title, lessee, or lender
   11  did not generate, arrange for, transport, or dispose, and did not  cause
   12  the  generation,  arrangement  for,  transportation,  or disposal of any
   13  hazardous substance located at such property, and did not own such prop-
   14  erty.
   15    (b) Notwithstanding any other provision  of  this  title,  any  person
   16  seeking the benefit of this subdivision shall bear the burden of proving
   17  that  a  cause of action, or any part thereof, is attributable solely to
   18  hazardous substances present in or on such parcel before  the  effective
   19  date of such contract.
   20    2.  [Subdivision  one  of  this section shall not apply to relieve any
   21  municipality, successor in title, lessee, or lender from liability aris-
   22  ing from:] Any municipality, successor in title, lessee, or lender iden-
   23  tified in paragraph (a) of subdivision one of  this  section  shall  not
   24  receive  the  liability  protections  identified in subdivisions one and
   25  three of this section where liability results from:
   26    (a) failing to implement such project to the department's satisfaction
   27  or failing to comply with the terms and conditions of the contract;
   28    (b) fraudulently demonstrating that the cleanup levels  identified  in
   29  or to be identified in accordance with such project were reached;
   30    (c)  causing  the release or threat of release at the property subject
   31  to such project of any hazardous substance after the effective  date  of
   32  such contract; [or]
   33    (d)  [changing such property's use from the intended use as identified
   34  in the contract pursuant to section 56-0503 to a use requiring  a  lower
   35  level  of  residual  contamination unless the additional remedial activ-
   36  ities are undertaken which shall meet the same standard  for  protection
   37  of  public  health  and the environment that applies to remedial actions
   38  undertaken pursuant to 27-1313 of this chapter so that such use  can  be
   39  implemented with sufficient protection of public health and the environ-
   40  ment.] violating the provisions of section 56-0511 of this title;
   41    (e)  failing  to  implement  the plan or to implement and maintain the
   42  engineering and/or institutional controls required by the department  in
   43  accordance  with  paragraph (h) of subdivision two of section 56-0503 of
   44  this title; or
   45    (f) using property subject to an environmental restoration project  in
   46  violation of the requirements of this title.
   47    3.  The  state  shall  indemnify  and  save harmless any municipality,
   48  successor in title, lessee, or lender [indentified] identified in  para-
   49  graph  (a) of subdivision one of this section in the amount of any judg-
   50  ment[,] or settlement, obtained against such municipality, successor  in
   51  title, lessee, or lender in any court for any common law cause of action
   52  arising out of the presence of any hazardous substance in or on property
   53  at anytime before the effective date of a contract entered into pursuant
   54  to this title.  Such municipality, successor in title, lessee, or lender
   55  shall  be entitled to representation by the attorney general, unless the
   56  attorney general determines, or a court of competent jurisdiction deter-
       S. 1409                            134                           A. 2109
 
    1  mines, that such representation would constitute a conflict of interest,
    2  in which case the attorney general shall certify to the comptroller that
    3  such party is entitled to private counsel of its choice, and  reasonable
    4  attorneys'  fees  and  expenses  shall  be  reimbursed by the state. Any
    5  settlement of such an action shall be subject to  the  approval  of  the
    6  attorney  general  as to form and amount, and this subdivision shall not
    7  apply to any settlement of any such action which has not  received  such
    8  approval.
    9    5. In addition to any other powers the department may have, including,
   10  but  not  limited  to,  the  powers set forth in section 56-0517 of this
   11  title, the department shall have the authority to  periodically  inspect
   12  [each  project  site]  property  to  ensure that the use of the property
   13  complies with the terms and conditions of [the contract] any engineering
   14  and/or institutional controls placed on the property.
   15    § 23. Section 56-0511 of the environmental conservation law, as  added
   16  by chapter 413 of the laws of 1996, is amended to read as follows:
   17  § 56-0511. Change of use.
   18    1.  At  least  sixty  days  before the start of physical alteration or
   19  construction constituting a change of use at a property investigated  or
   20  remediated under an environmental restoration project, or at least sixty
   21  days  before  a change of use at such a property not involving any phys-
   22  ical alteration or construction, as the case may be, the person or enti-
   23  ty proposing to make a change of use shall provide written  notification
   24  to  the department and the clerks of the county and other municipalities
   25  in which such property is located.
   26    2. No person shall engage in any activity at a  property  investigated
   27  or  remediated  under  an  environmental restoration project that is not
   28  consistent with restrictions placed upon the use  of  the  property,  or
   29  that  will,  or  that reasonably is anticipated to: prevent or interfere
   30  significantly with a proposed, ongoing, or completed project; or  expose
   31  the public health or the environment to a significantly increased threat
   32  of  harm  or  damage [at] from such property. If the commissioner deter-
   33  mines that a proposed change of  use  is  prohibited  pursuant  to  this
   34  section,  he  or  she shall, within forty-five days after receipt of the
   35  complete notice required by this section, provide the person giving such
   36  notice with a written determination that such change of use will not  be
   37  authorized, together with the reasons for such determination.
   38    3. For the purposes of this section:
   39    (i)  "change  of  use"  means  the transfer of title to all or part of
   40  property subject to an environmental  restoration  [agreement]  project,
   41  the  erection  of  any  structure  on such property, [the paving of such
   42  property for use as a roadway or parking lot,] and  the  creation  of  a
   43  park  or other public or private recreational facility on such property,
   44  or any activity that is likely to disrupt or expose hazardous substances
   45  or to increase direct human exposure; or any other conduct that will  or
   46  may  tend  to significantly interfere with an ongoing or completed envi-
   47  ronmental restoration project. "Change  of  use"  shall  not  include  a
   48  transfer  of  property where physical alteration of the property subject
   49  to an environmental restoration project is not contemplated. In the case
   50  of title transfers with no physical alteration of property subject to an
   51  environmental restoration project,  owners  of  property  shall  provide
   52  notice  of  proposed  transfers  of  title  within  a reasonable time in
   53  advance of the transfer.
   54    (ii) "complete notice" means a notice  that  adequately  apprises  the
   55  department  of  the contemplated physical alteration of the property and
   56  how such alteration may affect  the  property's  proposed,  ongoing,  or
       S. 1409                            135                           A. 2109
 
    1  completed  [remediation] project, or of the proposed new owner's ability
    2  to implement the engineering and institutional controls associated  with
    3  the [property's remediation] property.
    4    §  24.  The  environmental conservation law is amended by adding three
    5  new sections 56-0513, 56-0515 and 56-0517 to read as follows:
    6  § 56-0513. Immunity.
    7    Section eight of the court of claims act or any other provision of law
    8  to the contrary notwithstanding, the state shall be immune from  liabil-
    9  ity and action with respect to any act or omission done in the discharge
   10  of  the  department's responsibilities pursuant to this title; provided,
   11  however, that this section shall  not  limit  the  liability  which  may
   12  otherwise  exist  for  the unlawful, willful, or malicious acts or omis-
   13  sions on the part of the  state,  state  agencies,  or  their  officers,
   14  employees,  or  agents;  or  for the ownership or responsibility for the
   15  disposal of hazardous substances according to law.
   16  § 56-0515. Permit waivers.
   17    1. The department shall be exempt from the requirement to  obtain  any
   18  state  or local permit or other authorization for any activity needed to
   19  implement a project to investigate  or  remediate  hazardous  substances
   20  pursuant  to  this  title;  provided that the activity is conducted in a
   21  manner which satisfies all substantive technical requirements applicable
   22  to like activity conducted pursuant to a permit.
   23    2. The department, by and through the commissioner, shall  be  author-
   24  ized  to  exempt  a  person  from the requirement to obtain any state or
   25  local permit or other authorization for any activity needed to implement
   26  a project to investigate or remediate hazardous substances  pursuant  to
   27  this  title;  provided  that the activity is conducted in a manner which
   28  satisfies all substantive  technical  requirements  applicable  to  like
   29  activity conducted pursuant to a permit.
   30  § 56-0517. Access to sites.
   31    The  department,  by and through the commissioner, shall be authorized
   32  to:
   33    1. Require that any person permit a duly designated officer or employ-
   34  ee of the department or  of  a  municipal  corporation,  or  any  agent,
   35  consultant,  or  contractor  of  the department or of a municipal corpo-
   36  ration, or any other person, including an employee,  agent,  consultant,
   37  or  contractor  of  a  responsible person acting at the direction of the
   38  department, so authorized in writing by the commissioner, to enter  upon
   39  any property which has or may have and hazardous substance on such prop-
   40  erty, and/or areas near such property, for the following purposes:
   41    (a)  To  inspect  and  take samples of such hazardous substance and/or
   42  environmental media, utilizing such sampling methods as may be necessary
   43  or appropriate, including without limitation soil borings and monitoring
   44  wells; provided that  no  sampling  methods  involving  the  substantial
   45  disturbance of the ground surface of such property may be utilized until
   46  after  a  minimum  of  ten  days' written notice thereof shall have been
   47  provided to the owner and operator and occupant  of  such  property,  if
   48  identifiable  by  reasonable  efforts,  unless  the commissioner makes a
   49  written determination that such notice will not allow the protection  of
   50  the  public  health  or the environment, in which case two days' written
   51  notice shall be sufficient;
   52    (b) To implement the cleanup, removal, remediation, or restoration  of
   53  hazardous  substances and/or environmental media; provided, that no such
   54  work may be undertaken until after a minimum of ten days' written notice
   55  thereof shall have been provided to the owner and operator and  occupant
   56  of  such  property,  if  identifiable  by reasonable efforts, unless the
       S. 1409                            136                           A. 2109
 
    1  commissioner makes a written determination that  such  notice  will  not
    2  allow  the  protection of the public health or the environment, in which
    3  case two days' written notice shall be sufficient.
    4    2.  (a)  Require  that any person furnish to the department, in a form
    5  and manner as prescribed by the department, information relating to  the
    6  current  and  past  hazardous  substance generation, treatment, storage,
    7  disposal, and/or transportation activities of such person or  any  other
    8  person  now  or  formerly under the control of such person; in the event
    9  such person cannot comply therewith, in whole or in  part,  such  person
   10  shall  furnish to the department information describing all efforts made
   11  by such person to comply therewith; any information so furnished to  the
   12  department  shall  be  considered  a  "written instrument" as defined in
   13  subdivision three of section 175.00 of the penal law;
   14    (b) Require that any  person  permit  a  duly  designated  officer  or
   15  employee of the department at all reasonable times to have access to and
   16  to  copy  all  books,  papers,  documents,  and  records relating to the
   17  current and past hazardous  substance  generation,  treatment,  storage,
   18  disposal,  and/or transportation activities of such person or any person
   19  now or formerly under the control of such person;
   20    (c) Require, by subpoena issued in the name  of  the  department,  the
   21  production  of  books,  papers,  documents,  and  other records, and the
   22  rendition of testimony by deposition under oath of any  person  relating
   23  to the current and past hazardous substance generation, treatment, stor-
   24  age,  disposal,  and/or  transportation activities of such person or any
   25  person now or formerly under the control of such person; such  subpoenas
   26  and  depositions shall be regulated by the civil practice law and rules;
   27  the commissioner may invoke the powers of the supreme court of the state
   28  of New York to compel compliance therewith.
   29    § 25. Section 71-2705 of the environmental conservation law, as  added
   30  by chapter 550 of the laws of 1980 and subdivision 1 as amended by chap-
   31  ter 493 of the laws of 1985, is amended to read as follows:
   32  § 71-2705. Violations  of  section  27-1423  and  titles 9, 11 and 13 of
   33               article 27 of this chapter.
   34    1. Civil and administrative sanctions. Any person who violates any  of
   35  the  provisions  of, or who fails to perform any duty imposed by section
   36  27-1423 and titles 9, 11 and 13 of article 27 or any rule or  regulation
   37  promulgated  pursuant  thereto,  or any term or condition of any certif-
   38  icate or permit issued pursuant thereto, or any final  determination  or
   39  order  of  the commissioner made pursuant to this title shall be liable,
   40  in the case of a first violation, for a  civil  penalty  not  to  exceed
   41  twenty-five  thousand dollars and an additional penalty of not more than
   42  twenty-five thousand dollars for each day during  which  such  violation
   43  continues, to be assessed by the commissioner after an opportunity to be
   44  heard  pursuant  to  the provisions of section 71-1709 of this [chapter]
   45  article, or by the court in any action or proceeding pursuant to section
   46  71-2727 of this [chapter] article, and, in addition thereto, such person
   47  may by similar process be enjoined from continuing such  violation,  and
   48  any  permit  or  certificate  issued  to  such  person may be revoked or
   49  suspended or a pending renewal application denied.  In  the  case  of  a
   50  second  and  any  further  violation, the liability shall be for a civil
   51  penalty not to exceed fifty thousand dollars for each such violation and
   52  an additional penalty not to exceed fifty thousand dollars for each  day
   53  during which such violation continues.
   54    2.  Criminal  sanctions.  Any  person  who, having any of the culpable
   55  mental states defined in section 15.05 of the penal law,  shall  violate
   56  any  of  the  provisions  of or who fails to perform any duty imposed by
       S. 1409                            137                           A. 2109
 
    1  section 27-1423 and titles 9, 11 and 13 of article 27 or any  rules  and
    2  regulations  promulgated  pursuant  thereto, or any term or condition of
    3  any certificate or permit issued pursuant thereto, or any final determi-
    4  nation or order of the commissioner made pursuant to this title shall be
    5  guilty  of a misdemeanor and, upon conviction thereof, shall for a first
    6  conviction be punished by a fine  not  to  exceed  twenty-five  thousand
    7  dollars  per  day of violation or by imprisonment for a term of not more
    8  than one year, or both such fine and imprisonment. If the conviction  is
    9  for  an  offense committed after a first conviction of such person under
   10  this subdivision, punishment shall be by a  fine  not  to  exceed  fifty
   11  thousand  dollars  per day of violation, or by imprisonment for not more
   12  than two years or by both such fine and imprisonment.
   13    § 26. Paragraph b of subdivision 1 of section 71-2725 of the  environ-
   14  mental  conservation  law, as amended by chapter 60 of the laws of 1993,
   15  is amended to read as follows:
   16    b. All penalties and fines collected  pursuant  to  sections  71-2705,
   17  71-2721  and  71-2723 of this title shall be paid [into the general fund
   18  to the credit of the state purposes account] to the credit of the  reme-
   19  dial  program  transfer fund established by section ninety-seven-cccc of
   20  the state finance law.
   21    § 27. Subdivision 1 of section 71-2727 of the environmental  conserva-
   22  tion  law,  as amended by chapter 671 of the laws of 1986, is amended to
   23  read as follows:
   24    1. The commissioner, after investigation, notice, and  an  opportunity
   25  to be heard, may issue, modify, and revoke orders prohibiting violations
   26  of  any of the provisions of article [27 or 71] twenty-seven or seventy-
   27  one of this chapter or of any rule or  regulation  promulgated  pursuant
   28  thereto  and  requiring  the  taking of such remedial measures as may be
   29  necessary or appropriate.  Nothing herein contained shall be  deemed  to
   30  preclude the disposition of any matter within the department's jurisdic-
   31  tion  under  article twenty-seven of this chapter by stipulation, agreed
   32  settlement, consent order, default, or other informal method, upon  such
   33  terms and subject to such conditions and limitations as the commissioner
   34  may deem just.
   35    §  28.  Article 71 of the environmental conservation law is amended by
   36  adding a new title 36 to read as follows:
   37                                  TITLE 36
   38                       PROTECTION OF NATURAL RESOURCES
   39  Section 71-3601. Declaration of policy and statement of purpose.
   40          71-3603. Definition.
   41          71-3605. Environmental easements; certain common law rules not
   42                     applicable.
   43          71-3607. Procedures for modifying or extinguishing environmental
   44                     easement.
   45          71-3609. Scope of this title.
   46          71-3611. Severability.
   47  § 71-3601. Declaration of policy and statement of purpose.
   48    The legislature hereby finds and declares that in order  to  implement
   49  the  state  policy  of  conserving,  improving,  and  protecting natural
   50  resources and the environment  and  controlling  water,  land,  and  air
   51  pollution,  the  imposition  of  institutional controls on affected real
   52  property is fundamental to the enhancement of the  health,  safety,  and
   53  welfare of the people of the state and their overall economic and social
   54  well being.
   55  § 71-3603. Definition.
       S. 1409                            138                           A. 2109
 
    1    When  used  in this title, "environmental easement" means an easement,
    2  covenant, restriction, or other interest in real property, created under
    3  and subject to the provisions of this title, which limits  or  restricts
    4  development, management, or use of such real property for the purpose of
    5  protecting the public health or safety or natural resources or the envi-
    6  ronment  from pollution affecting the real property in a manner consist-
    7  ent with the public policy and purpose set forth in section  71-3601  of
    8  this  title; provided that no such easement shall be acquired or held by
    9  the state which is subject to the provisions of article fourteen of  the
   10  constitution.
   11  § 71-3605. Environmental  easements; certain common law rules not appli-
   12               cable.
   13    1. An environmental easement may be created or  conveyed  only  by  an
   14  instrument  which complies with the requirements of section 5-703 of the
   15  general obligations law and which is subscribed by the grantee. It shall
   16  be of perpetual duration, unless otherwise provided in such instrument.
   17    2. An environmental easement shall be modified  or  extinguished  only
   18  pursuant  to  the  provisions of section 71-3607 of this title. Any such
   19  modification or extinguishment shall be set forth in an instrument which
   20  complies with the requirements of section 5-703  of  the  general  obli-
   21  gations law or in an instrument filed in a manner prescribed for record-
   22  ing  a conveyance of real property pursuant to section two hundred nine-
   23  ty-one of the real property law.
   24    3. (a) An environmental easement shall be  held  only  by  the  state,
   25  except that the state shall not be authorized or empowered to acquire or
   26  hold  any  environmental  easement which is subject to the provisions of
   27  article fourteen of the constitution.
   28    (b) Any environmental easement created pursuant to  this  title  shall
   29  not  limit,  restrict,  or  modify  the  right to construct, operate, or
   30  continue the use of any facility, or impede any activity,  duly  author-
   31  ized  under the applicable provisions of the federal natural gas act (15
   32  U.S.C. §§ 717-717w).
   33    4. An environmental easement shall be duly  recorded  and  indexed  as
   34  such  in  the office of the recording officer for the county or counties
   35  where the land is situate in the manner prescribed by  article  nine  of
   36  the  real  property law. The easement shall describe the property encum-
   37  bered by the easement by adequate legal description or by reference to a
   38  recorded map showing its boundaries and bearing the seal  and  signature
   39  of  a  licensed  land  surveyor, or if the easement encumbers the entire
   40  property described in a deed of record, the easement may incorporate  by
   41  reference  the description in such deed, otherwise it shall refer to the
   42  liber and page of the deed or deeds of the record owner or owners of the
   43  real property burdened by the environmental easement. An instrument  for
   44  the  purpose  of creating, conveying, modifying, or terminating an envi-
   45  ronmental easement shall not be effective unless recorded.  The  depart-
   46  ment shall maintain a file of environmental easements.
   47    5.  An  environmental easement may be enforced in law or equity by its
   48  grantor or by the state, and is enforceable against  the  owner  of  the
   49  burdened  property.  Enforcement  shall  not  be defeated because of any
   50  subsequent adverse possession, laches, estoppel, or waiver.  No  general
   51  law  of the state which operates to defeat the enforcement of any inter-
   52  est in real property shall operate to  defeat  the  enforcement  of  any
   53  environmental  easement  unless  such  general  law expressly states the
   54  intent to defeat the enforcement of such easement or  provides  for  the
   55  exercise  of  the  power  of  eminent domain. It is not a defense in any
   56  action to enforce an environmental easement that:
       S. 1409                            139                           A. 2109
 
    1    (a) It is not appurtenant to an interest in real property;
    2    (b) It is not of a character that has been recognized traditionally at
    3  common law;
    4    (c) It imposes a negative burden;
    5    (d)  It imposes affirmative obligations upon the owner of any interest
    6  in the burdened property;
    7    (e) The benefit does not touch or concern real property; or
    8    (f) There is no privity of estate or of contract.
    9    6. Agents, employees, or other representatives of the state may  enter
   10  and  inspect  the  property  burdened  by an environmental easement in a
   11  reasonable manner and at reasonable times to assure compliance with  the
   12  restriction.
   13    7.  The  department  may promulgate regulations establishing standards
   14  for environmental easements.
   15    8. Written notice shall be provided to the director of the budget  and
   16  notice  published  in  the  state  register and the environmental notice
   17  bulletin at least thirty days prior to the acquisition, or entry into  a
   18  contract  for  the  acquisition,  on behalf of the state of any environ-
   19  mental easement.
   20  § 71-3607. Procedures for modifying or extinguishing environmental ease-
   21               ment.
   22    1. An environmental easement held by the state may only be modified or
   23  extinguished:
   24    (a) as provided in the instrument creating the easement; or
   25    (b) in a proceeding pursuant to section nineteen hundred fifty-one  of
   26  the real property actions and proceedings law; or
   27    (c) upon the exercise of the power of eminent domain; or
   28    (d)  where land subject to an environmental easement or an interest in
   29  such land is required for a major utility  transmission  facility  which
   30  has  received  a  certificate  of environmental compatibility and public
   31  need pursuant to article seven of the public service law or is  required
   32  for  a  major  steam  electric  generating facility which has received a
   33  certificate of environmental compatibility and public need  pursuant  to
   34  article eight of the public service law or is required for a major elec-
   35  tric  generating  facility  which has received a certificate of environ-
   36  mental  compatibility  and  public  need  pursuant  to  any   applicable
   37  provision  of  law,  upon  the  filing  of  such certificate in a manner
   38  prescribed for recording a  conveyance  of  real  property  pursuant  to
   39  section  two  hundred  ninety-one  of the real property law or any other
   40  applicable provision of law; provided that the commissioner  shall  have
   41  made  and  filed in the main office of the department a certificate that
   42  the exercise of such easement is no longer necessary to the  accomplish-
   43  ment of its purpose and consenting to the modification or extinguishment
   44  thereof.
   45    2.  Where an environmental easement is modified or extinguished pursu-
   46  ant to paragraph (d) of subdivision one of this section,  such  easement
   47  shall  be  modified or extinguished only to the minimum extent necessary
   48  to accommodate the facility which is the subject of the  certificate  of
   49  environmental compatibility and public need.
   50    3.  Nothing  in this section shall be construed to preclude the extin-
   51  guishment or modification of an environmental easement pursuant  to  the
   52  applicable  provisions of the federal natural gas act (15 U.S.C. §§ 717-
   53  717w).
   54  § 71-3609. Scope of this title.
   55    This title shall not affect any interests or rights in  real  property
   56  which are not environmental easements and shall not affect the rights of
       S. 1409                            140                           A. 2109
 
    1  owners  to  convey  any  interests in real property which they could now
    2  create under existing law without reference to the terms of this  title.
    3  Nothing in this title shall diminish the powers granted by any other law
    4  to  acquire  interests  or  rights  in  real property by purchase, gift,
    5  eminent domain, or otherwise and to use the same  for  public  purposes.
    6  Nothing  in  this title shall be construed to alter the authority other-
    7  wise available to the state to acquire environmental easements  for  the
    8  purposes of section 71-3601 of this title by eminent domain.
    9  § 71-3611. Severability.
   10    The  provisions  of  this title shall be severable, and if any clause,
   11  sentence, paragraph,  subdivision,  or  part  of  this  title  shall  be
   12  adjudged  by  any  court  of  competent jurisdiction to be invalid, such
   13  judgment shall not affect, impair, or invalidate the remainder  thereof,
   14  but shall be confined in its operation to the  clause,  sentence,  para-
   15  graph, subdivision, or part thereof directly involved in the controversy
   16  in  which  such  judgment  shall have been rendered; provided that if an
   17  environmental easement created pursuant to this title is  determined  by
   18  any  court  of competent jurisdiction to be land or water or an interest
   19  in land or water subject to the provisions of article  fourteen  of  the
   20  constitution,  then  the  authority of the state to hold or acquire such
   21  easement and the conveyance to the state of such easement shall be  void
   22  ab initio.
   23    §  29.  Paragraph b of subdivision 1, subdivision 9 and paragraph a of
   24  subdivision 11 of section 72-0201 of the environmental conservation law,
   25  paragraph b of subdivision 1 and subdivision 9 as added by chapter 38 of
   26  the laws of 1985 and paragraph a of subdivision 11 as amended by section
   27  24 of part A of chapter 58 of the laws of 1998, are amended and subdivi-
   28  sion 1 is amended by adding a new paragraph e to read as follows:
   29    b. Notwithstanding any general or special law to  the  contrary,  one-
   30  half  of  all  monies  collected  by  the department pursuant to section
   31  72-0402 and section 72-0502 of this article shall be  deposited  in  the
   32  [hazardous  waste]  remedial  program transfer fund, created pursuant to
   33  section [ninety-seven-b] ninety-seven-cccc of the state finance law.
   34    e.  Notwithstanding any general or special law to  the  contrary,  all
   35  monies  collected  by the department pursuant to section 72-0403 of this
   36  article shall be deposited in the remedial program transfer fund  estab-
   37  lished pursuant to section ninety-seven-cccc of the state finance law.
   38    9.  a.  In  the  event  a penalty or interest is collected pursuant to
   39  subdivision five or six of this  section  for  fees  due  under  section
   40  72-0402,  or section 72-0502 of this article, one-half of the penalty or
   41  interest shall be deposited by the department in the  [hazardous  waste]
   42  remedial program transfer fund.
   43    b.  In the event a penalty or interest is collected pursuant to subdi-
   44  vision five or six of this section for fees due under section 72-0403 of
   45  this article, such penalty or interest shall be deposited in the remedi-
   46  al program transfer fund.
   47    a. All fees collected pursuant to this article [except fees  collected
   48  pursuant  to  paragraphs  b, c and d of subdivision one of this section]
   49  shall be paid into the environmental conservation special  revenue  fund
   50  to  the  credit  of the environmental regulatory account, unless in this
   51  article provided otherwise.
   52    § 30. Section 72-0202 of the environmental conservation law is amended
   53  by adding a new subdivision 4 to read as follows:
   54    4. Bills issued for the hazardous  waste  generator  remedial  program
   55  surcharge due for the state fiscal year beginning April first, two thou-
   56  sand  three  shall  cover  the  period  April  first, two thousand three
       S. 1409                            141                           A. 2109
 
    1  through December thirty-first, two thousand three. The surcharge for the
    2  period April first, two thousand three  through  December  thirty-first,
    3  two thousand three shall be equal to three-quarters of the amount calcu-
    4  lated  in  the  manner  prescribed  by  section 72-0403 of this article.
    5  Hazardous waste generator remedial program surcharges for periods begin-
    6  ning after December thirty-first, two thousand three shall be calculated
    7  based upon the calendar year.
    8    § 31. The environmental conservation law is amended by  adding  a  new
    9  section 72-0403 to read as follows:
   10  § 72-0403. Remedial program surcharges.
   11    1. All generators shall submit annually to the department a fee in the
   12  amount to be determined as follows:
   13    a.  Four  thousand  dollars for generators of equal to or greater than
   14  fifteen tons per year and less than or equal  to  twenty-five  tons  per
   15  year of hazardous waste;
   16    b.  Nine  thousand  dollars for generators of greater than twenty-five
   17  tons per year and less than or equal to fifty tons per year of hazardous
   18  waste;
   19    c. Fourteen thousand dollars for generators of greater than fifty tons
   20  per year and less than or equal to seventy-five tons per year of hazard-
   21  ous waste;
   22    d. Nineteen thousand dollars for generators of greater  than  seventy-
   23  five  tons  per year and less than or equal to one hundred tons per year
   24  of hazardous waste;
   25    e. Twenty-four thousand dollars for generators  of  greater  than  one
   26  hundred  tons  per  year and less than or equal to five hundred tons per
   27  year of hazardous waste;
   28    f. Eighty thousand dollars for generators of greater than five hundred
   29  tons per year and less than or equal to one thousand tons  per  year  of
   30  hazardous waste;
   31    g.  Eighty-five  thousand  dollars  for generators of greater than one
   32  thousand tons per year and less than or equal to two thousand  tons  per
   33  year of hazardous waste;
   34    h. One hundred ten thousand dollars for generators of greater than two
   35  thousand tons per year and less than or equal to three thousand tons per
   36  year of hazardous waste;
   37    i.  One hundred thirty-five thousand dollars for generators of greater
   38  than three thousand tons per year and less than or equal to  five  thou-
   39  sand tons per year of hazardous waste;
   40    j.  One  hundred sixty thousand dollars for generators of greater than
   41  five thousand tons per year and less than or equal to ten thousand  tons
   42  per year of hazardous waste;
   43    k. Three hundred sixty thousand dollars for generators of greater than
   44  ten thousand tons per year of hazardous waste; or
   45    l.  Six  thousand  dollars  for generators of equal to or greater than
   46  fifteen tons per year of hazardous wastewater, payable  in  addition  to
   47  the  fees  for  hazardous  wastes, other than wastewater, as required by
   48  this subdivision.
   49    2. No fee shall be payable for waste resulting from services which are
   50  provided:
   51    a. under a contract with the  department,  or  with  the  department's
   52  approval and in compliance with departmental regulations, or pursuant to
   53  an  order  of the department, the United States environmental protection
   54  agency, or a court related to the cleanup or remediation of a  hazardous
   55  materials  or  hazardous  waste  spill, discharge, or surficial cleanup,
   56  pursuant to this chapter, other than section 27-1313 of this chapter  or
       S. 1409                            142                           A. 2109
 
    1  a  removal  action pursuant to the Comprehensive Environmental Response,
    2  Compensation and Liability Act (42 U.S.C.  9601 et seq.); or
    3    b.  under  a  contract  for,  or with the department's approval and in
    4  compliance with departmental regulations for, the cleanup and removal of
    5  a petroleum spill or discharge, pursuant to subdivision seven of section
    6  one hundred seventy-six of the navigation law; or
    7    c. under the order of a court, the department, or  the  department  of
    8  health,  or the United States environmental protection agency related to
    9  an inactive hazardous waste disposal site pursuant to section 27-1313 of
   10  this chapter, section  thirteen  hundred  eighty-nine-b  of  the  public
   11  health  law,  or  the Comprehensive Environmental Response, Compensation
   12  and Liability Act (42 U.S.C. 9601 et seq.); or
   13    d. voluntarily and without expectation  of  monetary  compensation  in
   14  accordance with subdivision one of section 27-1321 of this chapter; or
   15    e. under permit or order requiring corrective action pursuant to title
   16  nine  of  article twenty-seven of this chapter or the Resource Conserva-
   17  tion and Recovery Act (42 U.S.C. 6901 et seq.).
   18    3. In any case where a generator recycles more than ninety percent  of
   19  the amount of hazardous waste or hazardous wastewater it produces in any
   20  year,  or  if it produces both hazardous waste and hazardous wastewater,
   21  in any case where in any year it recycles more than  ninety  percent  of
   22  the amount of hazardous waste or hazardous wastewater upon which a reme-
   23  dial program surcharge fee is to be imposed, as certified to the commis-
   24  sioner, any such remedial program surcharge fee imposed or to be imposed
   25  in  such case shall be determined based upon the net amount of hazardous
   26  waste or hazardous wastewater generated which is not so recycled in such
   27  year, rather than upon the gross amount of hazardous waste or  hazardous
   28  wastewater, or both, generated in such year.
   29    §  32.  The  general  municipal law is amended by adding a new section
   30  970-r to read as follows:
   31    § 970-r. State assistance: brownfield redevelopment area planning.  1.
   32  Definitions.  a. "Brownfield redevelopment area" is  an  area  where:  a
   33  number of abandoned, idled or under-utilized properties are clustered in
   34  a  geographic  location;  contamination by hazardous waste as defined in
   35  section 27-1301 of the environmental conservation law  or  petroleum  as
   36  defined  in  section  one  hundred  seventy-two of the navigation law is
   37  suspected  of being widespread; and the  remediation  of  any  one  site
   38  would  not  address  all  suspected  sources of contamination and enable
   39  beneficial environmental and economic use.
   40    b. A "brownfield redevelopment area plan" is a plan  undertaken  by  a
   41  municipality  or  not-for-profit  corporation  to  develop a strategy to
   42  return a brownfield redevelopment area to productive economic use  while
   43  protecting  human  health and the environment; provided, that nothing in
   44  this section shall be deemed to establish a  relationship  of  principal
   45  and agent between the municipality and the not-for-profit corporation.
   46    2.  The  secretary of state is authorized to provide technical assist-
   47  ance to municipalities and not-for-profit corporations acting in cooper-
   48  ation with municipalities, to enhance their  capabilities  to  plan  the
   49  redevelopment of brownfield redevelopment areas.
   50    3.  Within  the  limits  of  appropriations therefor, the secretary of
   51  state is authorized  to  provide,  on  a  competitive  basis,  financial
   52  assistance  to  municipalities and not-for-profit corporations acting in
   53  cooperation with municipalities, to advance plans for the  redevelopment
   54  of brownfield redevelopment areas, as follows:
   55    a.  in  the preparation of a pre-planning study to develop information
   56  necessary for designating a brownfield redevelopment area.  Pre-planning
       S. 1409                            143                           A. 2109
 
    1  activities include, but are not limited to, basic information about  the
    2  boundaries  of  the  area,  the number and size of brownfield sites, the
    3  current and anticipated uses of the properties and  groundwater  in  the
    4  area,  known  data about the environmental conditions of the properties,
    5  ownership of the sites in the area and other information deemed relevant
    6  by the secretary of state.  Such study, when completed, shall be submit-
    7  ted to the secretary of state and filed with the municipal clerk.  After
    8  the  filing of the completed study in the office of the municipal clerk,
    9  the municipal legislative body may adopt a resolution  and  shall  enter
   10  the same in the minutes of its proceedings. The resolution shall contain
   11  a  copy  of  the  completed  study,  a  statement  of  the fact that the
   12  completed study is on file in the office  of  the  municipal  clerk  for
   13  public  inspection, and a statement of the time when and the place where
   14  the legislative body will meet and hold a public  meeting  to  hear  all
   15  persons  interested  in  the  subject  thereof;  and  the resolution may
   16  further state the place, other than the office of the  municipal  clerk,
   17  where the completed study may be inspected in advance of the meeting, if
   18  the  legislative body determines that, in the public interest, any addi-
   19  tional place of inspection is necessary or  desirable.    The  municipal
   20  legislative body shall cause a copy of the resolution or a summary ther-
   21  eof  to  be published at least once in the official paper or a newspaper
   22  in general circulation in the municipality, the first publication to  be
   23  not  less  than ten nor more than thirty days before the day set for the
   24  meeting required by this paragraph. If the  municipal  legislative  body
   25  publishes  a  summary  of the resolution, such summary shall include the
   26  business address of the municipal clerk, a statement that copies of  the
   27  resolution shall be made available free of charge to the public, and the
   28  cost  to  the  municipality of activities proposed to be undertaken. The
   29  municipality, or not-for-profit corporation with  the  approval  of  the
   30  municipality,  after  the  conclusion  of the public meeting required by
   31  this paragraph, may then file a petition requesting designation  of  the
   32  area  as  a brownfield redevelopment area for the approval of the secre-
   33  tary of state;
   34    b. in the preparation of a brownfield redevelopment area plan.   Plan-
   35  ning activities eligible to receive funding include, but are not limited
   36  to,  a  strategy which defines the end-uses of the brownfield redevelop-
   37  ment area once the properties  have  been  remediated  and  revitalized,
   38  including  any  infrastructure needs, and identifies actions required to
   39  reach such proposed end-uses, and other information deemed  relevant  by
   40  the  secretary  of state.   Such plan must be formulated in consultation
   41  with community based organizations and affected landowners. The  munici-
   42  pality  or  not-for-profit  corporation with the approval of the munici-
   43  pality shall submit such plan for  the  approval  of  the  secretary  of
   44  state;
   45    c.  in  the  preparation  of site assessments of properties owned by a
   46  municipality or a party not responsible for the remediation of hazardous
   47  waste or petroleum according to applicable principles  of  statutory  or
   48  common  law  liability,  or  a responsible party according to applicable
   49  principles of statutory or common law liability if such person's liabil-
   50  ity arises solely from ownership or operation of the site subsequent  to
   51  the  disposal  of  hazardous  waste or the discharge of petroleum in the
   52  brownfield redevelopment area. Assessment activities  include,  but  are
   53  not limited to, testing of properties to determine the nature and extent
   54  of  the  contamination  (including  soil and groundwater), environmental
   55  assessments, the development  of  a  proposed  remediation  strategy  to
   56  address  any  identified  contamination  and any other activities deemed
       S. 1409                            144                           A. 2109
 
    1  appropriate by the secretary in consultation with  the  commissioner  of
    2  environmental   conservation.  Any  environmental  assessment  shall  be
    3  subject to the review and approval of the commissioner of  environmental
    4  conservation.  State  assistance  payments shall not exceed seventy-five
    5  percent of the cost of such plans. The secretary of state, in  consulta-
    6  tion with the commissioner of environmental conservation, may enter into
    7  a  contract with a municipality or not-for-profit corporation, including
    8  such terms and conditions as the secretary of state and commissioner  of
    9  environmental  conservation  may  deem appropriate, to provide the state
   10  assistance.
   11    4. When determining the eligibility of a municipality or  not-for-pro-
   12  fit  corporation for such assistance, the secretary of state, in consul-
   13  tation with the commissioner of  environmental  conservation  and  other
   14  appropriate  agencies,  shall consider, among other matters, the follow-
   15  ing: benefit to human health, benefit to the environment,  the  economic
   16  benefit  to  the  state  (including new employment opportunities and new
   17  public recreational resources),  and  the  strength  of  local  support.
   18  Funding preferences shall be given to proposals for areas: with a demon-
   19  strated  need  for restoration; that would yield economic benefit to the
   20  state and create new jobs or a  new  public  resource;  that  receive  a
   21  strong  level  of  local support; and where a majority of the properties
   22  are owned by a municipality or party not responsible for the remediation
   23  of hazardous waste or petroleum according to  applicable  principles  of
   24  statutory  or  common  law liability or a responsible party according to
   25  applicable principles of statutory  or  common  law  liability  if  such
   26  person's liability arises solely from ownership or operation of the site
   27  subsequent to the disposal of hazardous waste or the discharge of petro-
   28  leum.
   29    5.  The secretary of state shall provide from available monies techni-
   30  cal support to municipalities and not-for-profit corporations to prepare
   31  their brownfield redevelopment areas program. Such support includes  but
   32  is not limited to personal and non-personal services.
   33    §  33.  The navigation law is amended by adding a new section 172-a to
   34  read as follows:
   35    § 172-a. Liability exclusions.  1. Notwithstanding  subdivision  thir-
   36  teen  of section one hundred seventy-two of this article the term "owner
   37  or operator" does not include a person that is a  lender  that,  without
   38  participating  in the management of property, holds indicia of ownership
   39  primarily to protect the security interest of the person in that proper-
   40  ty; nor does it include a person that is a lender that did  not  partic-
   41  ipate  in  management  of property prior to foreclosure, notwithstanding
   42  that the person forecloses on such property and after foreclosure sells,
   43  re-leases (in the case of a lease finance  transaction),  or  liquidates
   44  the property, maintains business activities, winds up operations, under-
   45  takes  in a non-negligent manner remedial actions under the direction of
   46  the department, with respect to such property, or takes any other  meas-
   47  ure  to  preserve,  protect,  or  prepare such property prior to sale or
   48  disposition, if the person seeks to sell, re-lease (in  the  case  of  a
   49  lease  finance transaction), or otherwise divest the person of the prop-
   50  erty   at the earliest  practicable  commercially  reasonable  time,  on
   51  commercially reasonable terms, taking into account market conditions and
   52  legal  and  regulatory requirements; provided, however, that such lender
   53  shall not make a claim against the fund arising out of a discharge asso-
   54  ciated with such property.  For purposes of this subdivision:
   55    (a) the term "participate in management" means actually  participating
   56  in  the  management  or  operational affairs of a property; and does not
       S. 1409                            145                           A. 2109
 
    1  include merely having the capacity  to  influence,  or  the  unexercised
    2  right to control, property operations;
    3    (b)  a  person  that  is  a lender and that holds indicia of ownership
    4  primarily to protect a security interest in a property shall be  consid-
    5  ered  to  participate in management only if, while the borrower is still
    6  in possession of the property encumbered by the security  interest,  the
    7  person  exercises  decisionmaking control over the environmental compli-
    8  ance related to the  property,  such  that  the  person  has  undertaken
    9  responsibility  for  the  hazardous waste handling or disposal practices
   10  related to the property; or exercises control at a level  comparable  to
   11  that  of  a manager of the property, such that the person has assumed or
   12  manifested responsibility for the overall  management  of  the  property
   13  encompassing  day-to-day  decisionmaking  with  respect to environmental
   14  compliance; or over all or substantially all of  the  operational  func-
   15  tions  (as  distinguished from financial or administrative functions) of
   16  the property other than the function of environmental compliance;
   17    (c) the term "participate in management" does not  include  performing
   18  an  act or failing to act prior to the time at which a security interest
   19  is created in a property; and
   20    (d) the term "participate in management" does not  include  holding  a
   21  security  interest  or  abandoning  or  releasing  a  security interest;
   22  including in the terms of an extension of credit, or in  a  contract  or
   23  security  agreement  relating to the extension, a covenant, warranty, or
   24  other term or condition that relates to environmental compliance;  moni-
   25  toring  or enforcing the terms and conditions of the extension of credit
   26  or security interest; monitoring or undertaking one or more  inspections
   27  of  the  property;  requiring a response action or other lawful means of
   28  addressing the release or threatened release of  a  hazardous  waste  in
   29  connection  with  the property prior to, during, or on the expiration of
   30  the term of the extension of credit; providing financial or other advice
   31  or counseling in an effort to mitigate, prevent,  or  cure  default,  or
   32  diminution  in  the value of the property; restructuring, renegotiating,
   33  or otherwise agreeing to alter the terms and conditions of the extension
   34  of credit or security interest, exercising forbearance; exercising other
   35  remedies that may be available under applicable law for the breach of  a
   36  term  or  condition of the extension of credit or security agreement; or
   37  conducting in a non-negligent manner a remedial action directly or under
   38  the direction of the department of environmental  conservation,  if  the
   39  actions  do not rise to the level of participating in management (within
   40  the meaning of this subdivision);
   41    (e) the term "extension of credit" includes  a  lease  finance  trans-
   42  action in which the lessor does not initially select the leased property
   43  and does not during the lease term control the daily operations or main-
   44  tenance of the property; or that conforms with regulations issued by the
   45  appropriate  federal  banking agency (as defined in 12 USC section 1813)
   46  or the superintendent  of  banks  or  with  regulations  issued  by  the
   47  National Credit Union Administrative Board, as appropriate;
   48    (f)  the  term "financial or administrative function" includes a func-
   49  tion such as  that  of  a  credit  manager,  accounts  payable  officer,
   50  accounts  receivable  officer,  personnel manager, comptroller, or chief
   51  financial officer, or a similar function;
   52    (g)  the  terms  "foreclosure"  and  "foreclose"  mean,  respectively,
   53  acquiring  and  to  acquire, a property through purchase at sale under a
   54  judgment or decree, power of sale, or nonjudicial  foreclosure  sale;  a
   55  deed  in  lieu  of foreclosure, or similar conveyance from a trustee; or
   56  repossession, if the property was security for an  extension  of  credit
       S. 1409                            146                           A. 2109
 
    1  previously  contracted;  conveyance  pursuant  to an extension of credit
    2  previously contracted, including the termination of a  lease  agreement;
    3  or any other formal or informal manner by which the person acquires, for
    4  subsequent disposition, title to or possession of a property in order to
    5  protect the security interest of the person;
    6    (h)  the  term  "lender"  means  an insured depository institution (as
    7  defined in 12 USC section 1813); an insured credit union (as defined  in
    8  12  USC  section  1752);  a bank or association chartered under the Farm
    9  Credit Act of 1971 (12 U.S.C. 2001 et seq.); a leasing or trust  company
   10  that  is  an  affiliate of an insured depository institution; any person
   11  (including a successor or assignee of any such person) that makes a bona
   12  fide extension of credit to or takes or  acquires  a  security  interest
   13  from  a nonaffiliated person; the Federal National Mortgage Association,
   14  the Federal Home Loan Mortgage  Corporation,  the  Federal  Agricultural
   15  Mortgage  Corporation,  or  any  other entity that in a bona fide manner
   16  buys or sells loans or interests in loans;  a  person  that  insures  or
   17  guarantees against a default in the repayment of an extension of credit,
   18  or  acts as a surety with respect to an extension of credit, to a nonaf-
   19  filiated person; and a person that provides  title  insurance  and  that
   20  acquires  a  property  as  a  result  of assignment or conveyance in the
   21  course of underwriting claims and claims settlement;
   22    (i) the term "operational function" includes a function such  as  that
   23  of  a  facility  or  plant  manager, operations manager, chief operating
   24  officer, or chief executive officer; and
   25    (j) the term "security interest" includes a right  under  a  mortgage,
   26  deed  of  trust,  assignment, judgment lien, pledge, security agreement,
   27  factoring agreement, or lease and any other right accruing to  a  person
   28  to  secure  the  repayment  of  money, the performance of a duty, or any
   29  other obligation by a nonaffiliated person.
   30    2. Notwithstanding subdivision thirteen of section one hundred  seven-
   31  ty-two  of  this  article the term, "owner or operator" does not include
   32  the state  or  a  public  corporation  which  acquired,  and  thereafter
   33  retained  without  participating  in  the  management  of such property,
   34  ownership or control involuntarily or voluntarily by virtue of its func-
   35  tion as sovereign; provided, however, that such public corporation shall
   36  not make  a claim against the fund arising out of a discharge associated
   37  with such property. Neither the state nor any public  corporation  shall
   38  incur  under  this chapter any liability as to matters within the juris-
   39  diction of the department as a result of actions taken in response to an
   40  emergency created by the discharge or threatened discharge of  petroleum
   41  by  another  person;  provided  that such actions by the state or public
   42  corporation did not constitute reckless, willful, wanton or  intentional
   43  misconduct.  As used in this subdivision:
   44    (a)  "public corporation" means a public corporation as defined in the
   45  general construction law;
   46    (b) "involuntary acquisition of ownership or control" includes, but is
   47  not limited to, the following:
   48    (i) acquisitions by the state or a public corporation, or  its  agent,
   49  acting as a conservator or receiver pursuant to a clear and direct stat-
   50  utory mandate or regulatory authority;
   51    (ii) acquisitions of assets through foreclosure and its equivalents as
   52  defined  in  paragraph (g) of subdivision one of this section, or other-
   53  wise, by the state or a public corporation in the course of  administer-
   54  ing a loan, loan guarantee, or loan insurance program;
   55    (iii)  acquisitions  by  the state or a public corporation pursuant to
   56  seizure or forfeiture authority;
       S. 1409                            147                           A. 2109
 
    1    (iv) acquisitions by the state or a public corporation as  the  result
    2  of tax delinquency purposes; provided, that such ownership or control is
    3  not retained primarily for investment purposes.
    4    (c) "management participation" means that the state or a public corpo-
    5  ration  is  actually participating in the management or operation of the
    6  property but does not include the mere capacity to influence, ability to
    7  influence, or unexercised right to control the operation of the  proper-
    8  ty.   Nothing contained in this subdivision affects the applicability of
    9  this section in favor of a holder of a security  interest  according  to
   10  the terms thereof.
   11    3.  Notwithstanding subdivision thirteen of section one hundred seven-
   12  ty-two of this article the term, "owner or operator" includes a  fiduci-
   13  ary;  provided,  however, that such liability on the part of a fiduciary
   14  shall not exceed the assets held  in  the  fiduciary  capacity  if  such
   15  person is not liable independently of such person's ownership as a fidu-
   16  ciary  or actions taken in a fiduciary capacity; provided, however, that
   17  such fiduciary shall not make a claim against the fund arising out of  a
   18  discharge associated with such property.
   19    (a) For purposes of this subdivision, (i) the term "fiduciary" means a
   20  person  acting  for the benefit of another party as a bona fide trustee;
   21  executor; administrator; custodian; guardian of estates or  guardian  ad
   22  litem;  receiver;  conservator;  committee  of  estates of incapacitated
   23  persons; personal representative; trustee (including a  successor  to  a
   24  trustee)  under an indenture agreement, trust agreement, lease, or simi-
   25  lar financing agreement, for debt securities, certificates  of  interest
   26  or  certificates  of participation in debt securities, or other forms of
   27  indebtedness as to which the trustee is not, in the capacity of trustee,
   28  the lender; or representative in any other capacity that the department,
   29  after providing public notice, determines to be similar to  the  various
   30  capacities  previously described in this paragraph; and does not include
   31  either a person that is acting as a fiduciary with respect to a trust or
   32  other fiduciary estate that was organized for the primary purpose of, or
   33  is engaged in, actively carrying on a trade or business for  profit,  or
   34  to  facilitate one or more estate plans, or because of the incapacity of
   35  a natural person or a person that acquires ownership  or  control  of  a
   36  property  with the objective purpose of avoiding liability of the person
   37  or any other person;
   38    (ii) the term "fiduciary capacity" means the capacity of a  person  in
   39  holding title to a property, or otherwise having control of or an inter-
   40  est  in  a property, pursuant to the exercise of the responsibilities of
   41  the person as a fiduciary.
   42    (b) Nothing in this subdivision affects the rights  or  immunities  or
   43  other  defenses  that  are  available under law that are applicable to a
   44  person subject to this subdivision or creates any liability for a person
   45  or a private right of action against a fiduciary or any other person.
   46    (c) Nothing in this subdivision applies to a  person  if  that  person
   47  acts  in  a  capacity  other  than that of a fiduciary or in a fiduciary
   48  capacity and, in that capacity, directly or indirectly benefits  from  a
   49  trust  or fiduciary relationship; or is a beneficiary and fiduciary with
   50  respect to the same fiduciary estate and as a fiduciary, receives  bene-
   51  fits  that  exceed  customary or reasonable compensation, and incidental
   52  benefits, permitted under other applicable law.
   53    (d) This subdivision does not preclude  a  claim  under  this  chapter
   54  against the assets of the estate or trust administered by the fiduciary;
   55  or  a  nonemployee agent or independent contractor retained by a fiduci-
   56  ary.
       S. 1409                            148                           A. 2109
 
    1    4. Notwithstanding subdivision thirteen of section one hundred  seven-
    2  ty-two  of this article the term, "owner or operator" includes an indus-
    3  trial development agency created under the general municipal law,  other
    4  than  one  that holds bare legal title to such property; has not partic-
    5  ipated  with  any  party  responsible  under  law for the remediation of
    6  contamination in, on, or from such property to attempt to  have  such  a
    7  party  avoid  its  remedial liability; has not exercised any contractual
    8  rights it may have or had, if any, under the lease,  guarantee,  or  any
    9  other  financing  agreement pursuant to which the industrial development
   10  agency would assume control over the actual operation of  the  property;
   11  has not taken possession or control of the property; and does not make a
   12  claim  against  the fund arising out of a discharge associated with such
   13  property. Nothing in this subdivision affects the rights  or  immunities
   14  or  other defenses that are available under law that are applicable to a
   15  person subject to this subdivision or creates any liability for a person
   16  or a private right of action against an industrial development agency or
   17  any other person.
   18    5. (a) Any other provision of law to the contrary notwithstanding,  no
   19  not-for-profit  corporation  shall incur any liability for any statutory
   20  claims of the state under this article as an owner or operator  if  such
   21  property  is or will be used for community purposes and if such not-for-
   22  profit corporation acquired and retains such  property  without  partic-
   23  ipating in the development of such property.
   24    (b)  The  exemption from liability set forth in this section shall not
   25  limit any other defense, indemnification or privilege under local, state
   26  or federal law.
   27    (c) When used in this section:
   28    (i) "Community purposes" shall mean an activity that the local munici-
   29  pal corporation has certified as being undertaken by the  not-for-profit
   30  corporation  acting on behalf of such municipal corporation, or as being
   31  in the public interest, including without limitation,  creation  of  new
   32  permanent  jobs,  construction  or  renovation  of  affordable  housing,
   33  historic preservation activities, provision of new or  revitalized  open
   34  space,  or  establishment  of other community facilities such as medical
   35  facilities or community centers; provided, that nothing in this  section
   36  shall  be  deemed  to  establish  a  relationship of principal and agent
   37  between  the  municipality  and  the  not-for-profit  corporation.  Such
   38  certification  may  be  withdrawn at any time if the municipality deter-
   39  mines that the certification was made as a result of a misrepresentation
   40  of a material fact by the not-for-profit corporation;
   41    (ii) "Participating in development" means carrying out, or causing  or
   42  permitting  the  carrying  out,  of  any above-grade improvements to the
   43  property; but does not include licensing, regulatory oversight,  or  the
   44  mere  capacity  to  regulate  or  influence, or the unexercised right to
   45  control the operation of the property. For purposes hereof,  participat-
   46  ing in development does not include:
   47    A. having the capacity to influence management of such property;
   48    B. having the unexercised right to control such property or operations
   49  thereof;
   50    C. holding, abandoning or releasing a security interest or tax lien on
   51  such property;
   52    D.  including  a  condition  relating to environmental compliance in a
   53  contract, permit, license or security agreement;
   54    E. monitoring the terms and conditions of an agreement;
   55    F. monitoring one or more inspections of such property;
       S. 1409                            149                           A. 2109
 
    1    G. participating in the marketing or determination of creditworthiness
    2  or income eligibility of prospective homeowners;
    3    H.  participating in development and allocation of sources and uses of
    4  project funding;
    5    I. exercising other remedies available under applicable laws;
    6    J. applying for federal or state statutory property benefits.
    7    (d) The exemption under this section shall not apply  if  any  member,
    8  officer or director of the not-for-profit corporation is or was an offi-
    9  cer or director of any owner or operator or other person responsible for
   10  the  discharge  of petroleum at the property under applicable principles
   11  of statutory or common law liability, or any subsequent  owner  of  such
   12  property,  whether  by election, designation, ex officio or in any other
   13  capacity or manner.
   14    (e) Notwithstanding any other subdivision of this section, a  not-for-
   15  profit corporation shall be subject to:
   16    (i)  all  summary  abatement  powers  of the commissioner set forth in
   17  section 71-0301 of the environmental conservation law; and
   18    (ii) liability as an owner or operator of a property or  as  a  person
   19  responsible  for the discharge of petroleum at or onto such property, if
   20  the not-for-profit corporation by willful or intentional  misconduct  or
   21  negligence allows a release of petroleum onto other property.
   22    (f)  The  exemptions  from  liability  provided  by this section shall
   23  continue to be effective with respect to a not-for-profit  corporation's
   24  ownership  of  a  property  only if the not-for-profit corporation which
   25  takes possession of such property seeks  to  sell,  lease  or  otherwise
   26  divest  itself  of  such  property  within five years or at the earliest
   27  practicable and reasonable time taking into account  the  market  condi-
   28  tions,  legal  and  regulatory requirements, zoning and planned usage of
   29  the property, and the best interest of  the  not-for-profit  corporation
   30  and the public, including the surrounding community. Sale of the proper-
   31  ty shall be conclusive proof of the not-for-profit corporation's reason-
   32  able  efforts  to  divest  itself of the property. If the not-for-profit
   33  corporation is unable to divest itself of the property within five years
   34  of the date on which the remediation of the property is completed,  such
   35  not-for-profit corporation shall provide a report annually to the munic-
   36  ipal corporation in which such property is located to establish that its
   37  efforts  to  divest  itself of such property within the preceding twelve
   38  months have been diligent. Such report shall document the actions of the
   39  not-for-profit corporation  to  comply  with  this  subdivision,  market
   40  conditions,  the  effects,  if  any,  of contamination on the property's
   41  marketability, and the reasonable steps  taken  by  such  not-for-profit
   42  corporation to render such property marketable.
   43    (g)  Any  not-for-profit  corporation  that  has taken possession of a
   44  property shall notify the department of  any  release  of  petroleum  or
   45  hazardous  waste  within  ten days of obtaining actual knowledge of such
   46  release, unless a shorter notice period  is  required  under  any  other
   47  provision  of  law,  in  which  case the shorter notice period controls.
   48  Failure to notify the department within such time period shall result in
   49  the loss of the exemption set forth in this section.
   50    (h) The exemptions from liability provided by this section  shall  not
   51  be assignable to any third party.
   52    6.  Notwithstanding the foregoing provisions of this section, a person
   53  receiving a liability exemption or liability limitation  under  subdivi-
   54  sion  one,  two,  three, four or five of this section shall be deemed to
   55  have waived any claim pursuant to section one hundred eighty-one of this
       S. 1409                            150                           A. 2109
 
    1  article that such person may have against  the  New  York  environmental
    2  protection and spill compensation fund.
    3    §  34.  Subdivision 2 of section 176 of the navigation law, as amended
    4  by chapter 536 of the laws of 1987, paragraph (a) as amended by  chapter
    5  584  of the laws of 1992, is amended and a new subdivision 9 is added to
    6  read as follows:
    7    2. (a) Upon the occurrence of a discharge of petroleum, the department
    8  shall respond promptly and proceed to cleanup and remove  the  discharge
    9  in  accordance  with environmental priorities or may, at its discretion,
   10  direct the discharger to promptly cleanup and remove the discharge.  The
   11  department  shall  be responsible for cleanup and removal or as the case
   12  may be, for retaining agents and contractors who shall operate under the
   13  direction of that department for such purposes. Implementation of clean-
   14  up and removal procedures after each discharge  shall  be  conducted  in
   15  accordance  with  environmental priorities and procedures established by
   16  the department.  Such procedures shall provide:
   17    (i) the objective of a cleanup and removal that the department  deter-
   18  mines  does  not  constitute  an immediate response cleanup shall be the
   19  protection of public health and the environment, with the minimum objec-
   20  tive being to eliminate or mitigate all significant  threats  to  public
   21  health  and  the  environment presented by such discharge through proper
   22  application of scientific and engineering principles; and that the reme-
   23  dy must be selected upon due consideration of the following factors:
   24    (A) conformance to standards and criteria that are generally  applica-
   25  ble,  consistently  applied, and officially promulgated, that are either
   26  directly applicable, or that are not directly applicable but  are  rele-
   27  vant  and appropriate, unless good cause exists why conformity should be
   28  dispensed with, and with consideration being given  to  guidance  deter-
   29  mined, after the exercise of engineering judgment, to be applicable;
   30    (B) overall protectiveness of public health and the environment;
   31    (C) short-term effectiveness;
   32    (D) long-term effectiveness;
   33    (E)  reduction  of  toxicity,  mobility,  and volume with treatment; a
   34  remedial program that permanently and significantly reduces the  toxici-
   35  ty,  mobility and/or volume of hazardous waste is to be preferred over a
   36  remedial program that does not do so; the following is the hierarchy  of
   37  remedial  technologies  ranked from most preferable to least preferable:
   38  (i) destruction, onsite or offsite; (ii) separation or treatment, onsite
   39  or  offsite;  (iii)  solidification  or  chemical  fixation,  onsite  or
   40  offsite; (iv) control and isolation, onsite or offsite;
   41    (F) cost;
   42    (G) implementability;
   43    (H) community acceptance; and
   44    (I) land use: the current, intended, and reasonably anticipated future
   45  land  uses  for  the property and its surroundings, to the extent ascer-
   46  tainable from consideration of current use, zoning  laws,  zoning  maps,
   47  comprehensive  community  master  plans,  population growth patterns and
   48  projections, accessibility to existing infrastructure, current  institu-
   49  tional  controls,  location  in  relation  to  urban and residential and
   50  commercial and  industrial  and  agricultural  and  recreational  areas,
   51  federal and state use designations, historical and/or recent development
   52  patterns,  cultural  factors, natural resources, potential vulnerability
   53  of groundwater to  contamination,  environmental  justice,  location  of
   54  wetlands,  proximity  to  floodplains, proximity to critical habitats of
   55  endangered or threatened species, geography and geology, and,  locations
       S. 1409                            151                           A. 2109
 
    1  of  wellhead protection areas and recharge areas and other areas identi-
    2  fied in the state's comprehensive groundwater protection program.
    3    (ii) the objective of a cleanup and removal that the department deter-
    4  mines does constitute an immediate response cleanup shall be to effectu-
    5  ate  a prompt cleanup and removal of contamination to ensure restoration
    6  of the environment to pre-spill conditions.  For purposes of this  para-
    7  graph,  an  immediate  response  cleanup  shall  be one that comprises a
    8  discrete set of activities which can  be  undertaken  without  extensive
    9  investigation  and  evaluation, to prevent, mitigate, or remedy environ-
   10  mental damage or the consequences of environmental  damage  attributable
   11  to the discharge.
   12    (iii)  the remediation of soil as part of any cleanup and removal of a
   13  discharge under this article shall be performed in accordance  with  the
   14  soil cleanup levels promulgated pursuant to section 27-1316 of the envi-
   15  ronmental conservation law.
   16    (iv) for all cleanup and removal actions other than immediate response
   17  cleanups, the department shall place a notification in the environmental
   18  notice  bulletin  and shall notify individuals, groups, and/or organiza-
   19  tions that have expressed interest in or are affected  by  such  cleanup
   20  and  removal  actions  upon the initiation of an investigation, upon the
   21  successful completion of such investigation, and upon the submission  of
   22  a  proposed  remedy.  The  department  shall  accept public comments for
   23  forty-five days prior to approving such remedy.
   24    (v) no cleanup and removal may be selected except upon the commission-
   25  er's finding that the same will be adequately protective of  the  public
   26  health and the environment.
   27    (vi) nothing herein contained shall be deemed to require site-specific
   28  remedy selection, and the commissioner shall have the power to develop a
   29  list of presumptive remedial strategies that are appropriate for specif-
   30  ic  site  types  and/or  contaminants  based upon historical patterns of
   31  remedy selection and the department's scientific and engineering  evalu-
   32  ation of performance data on technology implementation.
   33    (b)  The department shall determine cleanup levels for contaminants in
   34  the soil using site specific data  until  the  commissioner  promulgates
   35  rules  and  regulations pursuant to section 27-1315 and subdivision five
   36  of section 27-1316 of the environmental conservation law and  thereafter
   37  shall  use  the  soil  cleanup  levels set forth in such rules and regu-
   38  lations, as they may be amended.
   39    (c) Section eight of the court of claims act or any other provision of
   40  law to the contrary notwithstanding, the  state  shall  be  immune  from
   41  liability  and  action  with  respect to any act or omission done in the
   42  discharge of the department's responsibility pursuant to  this  article;
   43  provided,  however,  that this subdivision shall not limit any liability
   44  which may otherwise exist for unlawful, willful, or  malicious  acts  or
   45  omissions  on  the part of the state, state agencies, or their officers,
   46  employees, or agents or for a discharge  in  violation  of  section  one
   47  hundred seventy-three of this article.
   48    9.  The  department, by and through the commissioner, shall be author-
   49  ized to exempt a person from the requirement  to  obtain  any  state  or
   50  local permit or other authorization for any activity needed to implement
   51  a  program  for  the  cleanup  and removal of petroleum pursuant to this
   52  article; provided that the activity  is  conducted  in  a  manner  which
   53  satisfies  all  substantive  technical  requirements  applicable to like
   54  activity conducted pursuant to a permit.
       S. 1409                            152                           A. 2109
 
    1    § 35. Paragraph (a) of subdivision 2 of section 179 of the  navigation
    2  law,  as amended by chapter 83 of the laws of 1995, is amended and a new
    3  subdivision 3 is added to read as follows:
    4    (a)  An  account  which  shall  be  credited with all license fees and
    5  penalties collected pursuant to paragraph (b)  of  subdivision  one  and
    6  paragraph (a) of subdivision four of section one hundred seventy-four of
    7  this  article, penalties collected pursuant to paragraph (b) of subdivi-
    8  sion four of section one hundred seventy-four-a of this  article,  money
    9  collected  pursuant to section one hundred eighty-seven of this article,
   10  all penalties collected pursuant to section one  hundred  ninety-two  of
   11  this  article, all moneys transferred from the remedial program transfer
   12  fund pursuant to subdivision five of section  ninety-seven-cccc  of  the
   13  state  finance  law for deposit in the New York environmental protection
   14  and spill compensation fund, and registration fees collected pursuant to
   15  subdivision two of section 17-1009  of  the  environmental  conservation
   16  law.
   17    3.  Notwithstanding  any  general  or special law to the contrary, all
   18  monies collected pursuant to paragraph (b) of subdivision one and  para-
   19  graph  (a)  of  subdivision  four of section one hundred seventy-four of
   20  this article, penalties collected pursuant to paragraph (c) of  subdivi-
   21  sion  one  and  paragraph (b) of subdivision four of section one hundred
   22  seventy-four of this article effective April first of the  state  fiscal
   23  year  succeeding  the state fiscal year certified in subdivision fifteen
   24  of section ninety-seven-b of the state finance law, penalties  collected
   25  pursuant  to  paragraphs  (b) and (c) of subdivision four of section one
   26  hundred seventy-four-a of this  article,  money  collected  pursuant  to
   27  section   one  hundred  eighty-seven  of  this  article,  all  penalties
   28  collected pursuant to section one hundred ninety-two  of  this  article,
   29  and  registration  fees collected pursuant to subdivision two of section
   30  17-1009 of the environmental conservation law shall be deposited in  the
   31  remedial program transfer fund in the fiscal year beginning April first,
   32  two thousand three, and for each fiscal year thereafter.
   33    §  36.  Subdivision 5 of section 180 of the navigation law, as amended
   34  by chapter 35 of the laws of 1985, is amended and a new subdivision 6 is
   35  added to read as follows:
   36    5. To disburse moneys from the fund  for  cleanup  and  removal  costs
   37  pursuant to a certification of claims by the commissioner[.]; and
   38    6. To submit on an annual basis to the governor and legislature within
   39  sixty  days  of the end of the state fiscal year an independent audit of
   40  the New York environmental protection and spill compensation fund.
   41    § 37.  Subdivisions 1 and 4 of section  181  of  the  navigation  law,
   42  subdivision 1 as amended by chapter 712 of the laws of 1989 and subdivi-
   43  sion  4 as amended by chapter 458 of the laws of 1978, are amended and a
   44  new subdivision 7 is added to read as follows:
   45    1. [Any] (a) Except as provided in paragraph (d) of this  subdivision,
   46  any  person who has discharged petroleum shall be strictly liable, with-
   47  out regard to fault, for all cleanup and removal costs  and  all  direct
   48  and  indirect  damages,  no matter by whom sustained, as defined in this
   49  section. In addition to cleanup and removal costs and damages, any  such
   50  person  who is notified of such release, and who did not undertake relo-
   51  cation of persons residing in the area of the  discharge  in  accordance
   52  with  paragraph (c) of subdivision seven of section one hundred seventy-
   53  six of this article, shall be liable to the fund for an amount equal  to
   54  two times the actual and necessary expense incurred by the fund for such
   55  relocation pursuant to section one hundred seventy-seven-a of this arti-
   56  cle.
       S. 1409                            153                           A. 2109
 
    1    (b)  Two  or  more owners and/or persons described in paragraph (a) of
    2  subdivision three of this section may  claim  contribution  among  them-
    3  selves  in  an  action brought in a court of competent jurisdiction, and
    4  the amount of contribution to which any of them  is  entitled  shall  be
    5  equal  to  the  excess  paid by that person over and above such person's
    6  equitable share of costs.
    7    (c) A person misidentified by the department as a person described  in
    8  paragraph  (a)  of  this  subdivision  but  who entered into a voluntary
    9  commitment with the department may recover from the  New  York  environ-
   10  mental  protection and spill compensation fund created under section one
   11  hundred seventy-nine of this article the costs that  such  person  shall
   12  have  incurred  that  are reasonable in light of the action agreed to be
   13  undertaken.
   14    (d) There shall be no liability under this subdivision  for  a  person
   15  otherwise  liable  who  can establish by a preponderance of the evidence
   16  that the discharge was caused solely by an act of God; an act of war; or
   17  an act or omission of a third party other than an employee or  agent  of
   18  such  person,  or  one whose act or omission occurs in connection with a
   19  contractual relationship, existing directly  or  indirectly,  with  such
   20  person  (except  where  the  sole  contractual arrangement arises from a
   21  published tariff and acceptance for carriage  by  a  common  carrier  or
   22  rail),  if  such  person  establishes by a preponderance of the evidence
   23  that such person is other than one that transports or supplies petroleum
   24  and exercised due care with respect to the petroleum  concerned,  taking
   25  into  consideration  the  characteristics of such petroleum, in light of
   26  all relevant facts and circumstances, and took precautions against fore-
   27  seeable acts or omissions of any such third party and  the  consequences
   28  that could foreseeably result from such acts or omissions; or any combi-
   29  nation  of  them.  For purposes of this paragraph, the term "contractual
   30  relationship" includes, but is not limited to, land contracts, deeds, or
   31  other instruments transferring title or possession, unless the  property
   32  on  which the discharge concerned is located was acquired by such person
   33  after the discharge on, in, or at such property, and such person  estab-
   34  lishes  one  or more of the circumstances described in subparagraph (i),
   35  (ii), or (iii) of this paragraph by a preponderance of the evidence:
   36    (i) At the time such person acquired the property, such person did not
   37  know and had no reason to know that any petroleum was discharged on, in,
   38  or at the property. To establish that such person had no reason to know,
   39  such person must have undertaken, at the time of acquisition, all appro-
   40  priate inquiry into the previous ownership  and  uses  of  the  property
   41  consistent  with  good  commercial or customary practice in an effort to
   42  minimize liability. For purposes of the preceding sentence, the  commis-
   43  sioner  shall  take into account any specialized knowledge or experience
   44  on the part of such person, the relationship of the  purchase  price  to
   45  the  value  of the property if uncontaminated, commonly known or reason-
   46  ably ascertainable information about the property,  the  obviousness  of
   47  the  presence  or  likely presence of contamination at the property, and
   48  the ability to detect such contamination by appropriate inspection; or
   49    (ii) Such person is a government entity which acquired the property by
   50  escheat, or through any other involuntary transfer or acquisition; or
   51    (iii) Such person acquired the property by inheritance or bequest, and
   52  that such person exercised  due  care  with  respect  to  the  petroleum
   53  concerned,  taking into consideration the characteristics of such petro-
   54  leum, in light of all relevant facts and circumstances, and took precau-
   55  tions against foreseeable acts or omissions of any such third party  and
       S. 1409                            154                           A. 2109
 
    1  the  consequences  that could foreseeably result from such acts or omis-
    2  sions.
    3    (e)  Nothing  in  this subdivision shall diminish the liability of any
    4  previous owner or operator of the property who would otherwise be liable
    5  under this subdivision. Notwithstanding this paragraph, if  such  person
    6  obtained  actual  knowledge  of  the discharge at the property when such
    7  person owned the property and then subsequently transferred ownership of
    8  the property to another person without disclosing such  knowledge,  such
    9  person  shall  be treated as a person responsible for the discharge, and
   10  no defense under this paragraph shall be available to such person. Noth-
   11  ing in this paragraph shall affect the liability under this  subdivision
   12  of  a  person who, by any act or omission, caused or contributed to such
   13  discharge of petroleum.
   14    4. [An] Notwithstanding subdivision one of this section  and  subdivi-
   15  sions  one, two, three, and four of section one hundred seventy-two-a of
   16  this article, an act or omission caused  solely  by  war,  sabotage,  or
   17  governmental  negligence  shall be the only defenses which may be raised
   18  by any owner or operator of a major facility or vessel responsible for a
   19  discharge in any action arising under the provisions of this article.
   20    7. Notwithstanding the foregoing provisions of this section, a  person
   21  receiving  a  liability exemption or liability limitation under subdivi-
   22  sion one of this section or under subdivision one, two, three,  or  four
   23  of  section one hundred seventy-two-a of this article shall be deemed to
   24  have waived any claim pursuant to subdivision two of this  section  that
   25  such  person  may have against the New York environmental protection and
   26  spill compensation fund.
   27    § 38. Section 183 of the navigation law, as added by  chapter  845  of
   28  the laws of 1977, is amended to read as follows:
   29    § 183. Settlements.  1. The administrator shall attempt to promote and
   30  arrange a settlement between the claimant and the person responsible for
   31  the  discharge.  If  the  source  of the discharge can be determined and
   32  liability is conceded, the claimant and the alleged discharger may agree
   33  to a settlement which shall be final and binding upon  the  parties  and
   34  which will waive all recourse against the fund.
   35    2.  After  the  successful implementation of an order on consent which
   36  provides for the cleanup  and  removal  of  the  discharge,  the  person
   37  subject  to  the  order shall submit to the department a written certif-
   38  ication prepared by an individual licensed or  otherwise  authorized  in
   39  accordance  with  article one hundred forty-five of the education law to
   40  practice the profession of engineering who shall have been in charge  of
   41  the  implementation  of  the  cleanup  and removal activities undertaken
   42  pursuant to such order substantiating that, at a minimum, such  remedial
   43  activities satisfied the remedial requirements set forth in such order.
   44    3. Upon the department's receipt of such certification, the department
   45  shall  review the final engineering report and the data submitted pursu-
   46  ant  to  the  order, as well as any other relevant information regarding
   47  the discharge. The department shall provide the person, upon its  satis-
   48  faction  that  the  remedial  requirements  for  the discharge have been
   49  achieved, with a covenant not to sue, binding upon the  state,  for  any
   50  liability,  including  any  future  liability  or  claim for the further
   51  cleanup or removal of petroleum relating to the discharge that  was  the
   52  subject  of such order, except that a person responsible for the cleanup
   53  and removal of the discharge pursuant to section one hundred  eighty-one
   54  of this article shall not receive a release for natural resource damages
   55  that  may be available under federal law.  Additionally, the state none-
   56  theless shall reserve all of its rights concerning,  and  such  covenant
       S. 1409                            155                           A. 2109
 
    1  shall  not  extend  to, any further investigation or remedial action the
    2  department deems necessary, as a result of:
    3    (a) a failure to comply with the terms and conditions of the order;
    4    (b)  a  fraudulent demonstration that the cleanup levels identified in
    5  the order were reached;
    6    (c) a release or threatened release at  the  site  subsequent  to  the
    7  effective date of the order;
    8    (d) a change in the site's use subsequent to the effective date of the
    9  order to a use requiring a lower level of residual contamination, unless
   10  additional remedial activities are undertaken which shall meet the stan-
   11  dard for protection of public health and the environment that applies to
   12  remedial actions for such use under this article; or
   13    (e)  information received, in whole or in part, after the department's
   14  execution of such order, which indicates that the  cleanup  and  removal
   15  performed,  or to be performed, under such order will not be, or is not,
   16  protective of public health or the environment for such use of the site.
   17    4. The reservation contained in paragraph (d) of subdivision three  of
   18  this section shall not be reserved in the event a person remediates soil
   19  contamination to soil category 1, as that term is described in paragraph
   20  a of subdivision three of section 27-1316 of the environmental conserva-
   21  tion law.
   22    5.  The  covenant  not  to  sue  issued pursuant to this section shall
   23  extend to the person's successors  or  assigns  through  acquisition  of
   24  title to the site to which the liability release applies and to a person
   25  who  develops or otherwise occupies the site; provided that such persons
   26  act in good faith to adhere to the requirements of such order and  work-
   27  plan. However, such covenant does not extend, and cannot be transferred,
   28  to  a  person  who  is  responsible as of the date of the issuance of an
   29  order on consent for the discharge of petroleum according to section one
   30  hundred eighty-one of this article, unless that person was party to  the
   31  order on which such covenant was based. A notice of the order containing
   32  such covenant shall be recorded and indexed as a declaration of covenant
   33  in  the office of the recording officer for the county or counties where
   34  such site is located in the manner prescribed by  article  nine  of  the
   35  real  property law within thirty days of signing the order if the person
   36  is an owner or within thirty days of acquiring title to the site if  the
   37  person is a prospective purchaser.
   38    6. The provisions of this title shall not affect an action or a claim,
   39  including  a  claim  for  contribution,  that a person who implements or
   40  completes an order executed by such person and the department  providing
   41  for  the  cleanup  and removal of the discharge pursuant to this article
   42  has or may have against a third party.
   43    7. Nothing in this section shall be construed  to  affect  either  the
   44  liability  of any person with respect to any costs, damages, or investi-
   45  gative or remedial activities that are not included in the order; or the
   46  department's authority to maintain an action or proceeding  against  any
   47  person who is not subject to the order.
   48    8.  A person who has settled such person's liability to the department
   49  under this section shall not  be  liable  for  claims  for  contribution
   50  regarding  matters  addressed  in  the  order.  Such settlement does not
   51  discharge any of the persons responsible under law for the  cleanup  and
   52  removal of the discharge unless its terms so provide, but it reduces the
   53  potential liability of the others by the amount of the settlement.
   54    9.  Nothing in this section shall be construed to affect the authority
   55  of the department to reach settlement with other persons consistent with
   56  its authority under applicable law.
       S. 1409                            156                           A. 2109
 
    1    § 39.   Subdivisions 24, 25 and 26  of  section  1281  of  the  public
    2  authorities law, subdivision 24 as amended by chapter 857 of the laws of
    3  1982,  subdivision  25 as amended by chapter 295 of the laws of 1994 and
    4  subdivision 26 as added by chapter 282 of the laws of 1979, are  amended
    5  to read as follows:
    6    24. "Hazardous waste" shall [mean a waste which appears on the list or
    7  satisfies  the  characteristics promulgated by the commissioner of envi-
    8  ronmental conservation pursuant to section 27-0903 of the  environmental
    9  conservation  law  and  until,  but  not after, the promulgation of such
   10  list, a waste or combination of wastes, which because of  its  quantity,
   11  concentration, or physical, chemical or infectious characteristics may:
   12    a.  Cause,  or significantly contribute to an increase in mortality or
   13  an  increase  in  serious  irreversible  or  incapacitating   reversible
   14  illness; or
   15    b.  Pose  a substantial present or potential hazard to human health or
   16  the environment when improperly treated, stored,  transported,  disposed
   17  or  otherwise  managed]  have  the  same meaning as set forth in section
   18  27-1301 of the environmental conservation law.
   19    25. "Inactive hazardous waste disposal site" shall [mean any  area  or
   20  structure used for the long term storage or final placement of hazardous
   21  waste including, but not limited to, dumps, landfills, lagoons and arti-
   22  ficial  treatment  ponds,  as  to  which  area or structure no permit or
   23  authorization issued by the department of environmental conservation  or
   24  a federal agency for the disposal of hazardous waste was in effect after
   25  the  effective  date of this title and any inactive area or structure on
   26  the National Priorities List  established  under  the  authority  of  42
   27  U.S.C.A.  Section  9605]  have  the same meaning as set forth in section
   28  27-1301 of the environmental conservation law.
   29    26. "Inactive hazardous waste disposal site  remedial  program"  shall
   30  [mean  activities  undertaken  to  eliminate,  remove, abate, control or
   31  monitor health and/or environmental  hazards  or  potential  hazards  in
   32  connection  with  inactive hazardous waste disposal sites or to treat or
   33  dispose of wastes and  waste  contaminated  materials  from  such  sites
   34  including, but not limited to, grading, contouring, trenching, grouting,
   35  capping,  excavation,  transporting,  incineration,  chemical treatment,
   36  biological treatment or the  construction  of  leachate  collection  and
   37  treatment  facilities]  have  the  same  meaning as set forth in section
   38  27-1301 of the environmental conservation law.
   39    § 40. Section 1389-a of the public health law, as added by chapter 282
   40  of the laws of 1979, subdivision 1 as amended by chapter 857 of the laws
   41  of 1982 and subdivision 2 as amended by chapter 295 of the laws of 1994,
   42  is amended to read as follows:
   43    § 1389-a. Definitions.   1. "Hazardous waste"  means  [a  waste  which
   44  appears  on the list or satisfies the characteristics promulgated by the
   45  commissioner of environmental conservation pursuant to  section  27-0903
   46  of  the  environmental  conservation  law  and until, but not after, the
   47  promulgation of such list, or a waste or combination  of  wastes,  which
   48  because  of its quantity, concentration, or physical, chemical or infec-
   49  tious characteristics may:
   50    a. Cause, or significantly contribute to an increase in  mortality  or
   51  an   increase  in  serious  irreversible  or  incapacitating  reversible
   52  illness; or
   53    b. Pose a substantial present or potential hazard to human  health  or
   54  the  environment  when improperly treated, stored, transported, disposed
   55  or otherwise managed] hazardous waste as defined in section  27-1301  of
   56  the environmental conservation law.
       S. 1409                            157                           A. 2109
 
    1    2.  "Inactive hazardous waste disposal site" means [any area or struc-
    2  ture used for the long term storage  or  final  placement  of  hazardous
    3  waste including, but not limited to, dumps, landfills, lagoons and arti-
    4  ficial  treatment  ponds,  as  to  which  area or structure no permit or
    5  authorization  issued by the department of environmental conservation or
    6  a federal agency for the disposal of hazardous waste was in effect after
    7  the effective date of this title and any inactive area or  structure  on
    8  the  National  Priorities  List  established  under  the authority of 42
    9  U.S.C.A. Section 9605] an inactive hazardous waste disposal site as that
   10  term is defined in section 27-1301  of  the  environmental  conservation
   11  law.
   12    3.  "Inactive  hazardous  waste  disposal site remedial program" means
   13  [activities undertaken to eliminate, remove, abate, control  or  monitor
   14  health  and/or  environmental hazards or potential hazards in connection
   15  with inactive hazardous waste disposal sites or to treat or  dispose  of
   16  wastes  and  waste contaminated materials from such sites including, but
   17  not limited to, grading, contouring, trenching, grouting, capping, exca-
   18  vation,  transporting,  incineration,  chemical  treatment,   biological
   19  treatment  or  construction of leachate collection and treatment facili-
   20  ties] an inactive hazardous waste disposal site remedial program as that
   21  term is defined in section 27-1301  of  the  environmental  conservation
   22  law.
   23    4.  "Person"  means  an  individual, trust, firm, joint venture, joint
   24  stock company,  corporation,  limited  liability  company,  partnership,
   25  association, state, municipality, commission, political subdivision of a
   26  state, public benefit corporation, or any interstate body.
   27    a.  Such  term  includes  any  person  owning or operating an inactive
   28  hazardous waste disposal site but does not include a person  that  is  a
   29  lender that, without participating in the management of such site, holds
   30  indicia  of  ownership primarily to protect the security interest of the
   31  person in such site; nor does it include a person that is a lender  that
   32  did  not  participate  in  management of such site prior to foreclosure,
   33  notwithstanding that the person forecloses on such site and after  fore-
   34  closure  sells,  re-leases (in the case of a lease finance transaction),
   35  or liquidates such site, maintains business activities, winds  up  oper-
   36  ations,  undertakes in a non-negligent manner remedial actions under the
   37  direction of the department, with respect to such  site,  or  takes  any
   38  other  measure  to preserve, protect, or prepare such site prior to sale
   39  or disposition, if the person seeks to sell, re-lease (in the case of  a
   40  lease  finance transaction), or otherwise divest the person of such site
   41  at the earliest practicable commercially reasonable time, on commercial-
   42  ly reasonable terms, taking into account market conditions and legal and
   43  regulatory requirements. For purposes of this paragraph:
   44    (i) the term "participate in management" means actually  participating
   45  in  the  management  or  operational  affairs of such site; and does not
   46  include merely having the capacity  to  influence,  or  the  unexercised
   47  right to control, such site's operations;
   48    (ii)  a  person  that  is a lender and that holds indicia of ownership
   49  primarily to protect a security interest in such site shall  be  consid-
   50  ered  to  participate in management only if, while the borrower is still
   51  in possession of such site, the person exercises decisionmaking  control
   52  over  the  environmental  compliance  related to such site such that the
   53  person has undertaken responsibility for the hazardous waste handling or
   54  disposal practices related to such site; or exercises control at a level
   55  comparable to that of a manager of such site such that  the  person  has
   56  assumed  or manifested responsibility for the overall management of such
       S. 1409                            158                           A. 2109
 
    1  site encompassing day-to-day decisionmaking  with  respect  to  environ-
    2  mental  compliance;  or over all or substantially all of the operational
    3  functions (as distinguished from financial or administrative  functions)
    4  of such site other than the function of environmental compliance;
    5    (iii) the term "participate in management" does not include performing
    6  an  act or failing to act prior to the time at which a security interest
    7  is created in such site;
    8    (iv) the term "participate in management" does not include  holding  a
    9  security  interest  or  abandoning  or  releasing  a  security interest;
   10  including in the terms of an extension of credit, or in  a  contract  or
   11  security  agreement  relating to the extension, a covenant, warranty, or
   12  other term or condition that relates to environmental compliance;  moni-
   13  toring  or enforcing the terms and conditions of the extension of credit
   14  or security interest; monitoring or undertaking one or more  inspections
   15  of  such  site;  requiring  a  response  action or other lawful means of
   16  addressing the release or threatened release of  a  hazardous  waste  in
   17  connection  with such site prior to, during, or on the expiration of the
   18  term of the extension of credit; providing financial or other advice  or
   19  counseling in an effort to mitigate, prevent, or cure default or diminu-
   20  tion  in the value of such site; restructuring, renegotiating, or other-
   21  wise agreeing to alter the terms and  conditions  of  the  extension  of
   22  credit  or  security  interest; exercising forbearance; exercising other
   23  remedies that may be available under applicable law for the breach of  a
   24  term  or  condition of the extension of credit or security agreement; or
   25  conducting in a non-negligent manner a remedial action directly or under
   26  the direction of the department, if the actions do not rise to the level
   27  of participating in management (within the meaning of subparagraphs  (i)
   28  and (ii) of this paragraph);
   29    (v)  the  term  "extension  of credit" includes a lease finance trans-
   30  action in which the lessor does not initially select  such  leased  site
   31  and does not during the lease term control the daily operations or main-
   32  tenance  of  such  site; or that conforms with regulations issued by the
   33  appropriate federal banking agency (as defined in 12 USC  section  1813)
   34  or  the  superintendent  of  banks  or  with  regulations  issued by the
   35  National Credit Union Administrative Board, as appropriate;
   36    (vi) the term "financial or administrative function" includes a  func-
   37  tion  such  as  that  of  a  credit  manager,  accounts payable officer,
   38  accounts receivable officer, personnel manager,  comptroller,  or  chief
   39  financial officer, or a similar function;
   40    (vii)  the  terms  "foreclosure"  and  "foreclose" mean, respectively,
   41  acquiring and to acquire, such site through purchase  at  sale  under  a
   42  judgment  or  decree,  power of sale, or nonjudicial foreclosure sale; a
   43  deed in lieu of foreclosure, or similar conveyance from  a  trustee;  or
   44  repossession,  if  such  site  was  security  for an extension of credit
   45  previously contracted; conveyance pursuant to  an  extension  of  credit
   46  previously  contracted,  including the termination of a lease agreement;
   47  or any other formal or informal manner by which the person acquires, for
   48  subsequent disposition, title to or possession of such site in order  to
   49  protect the security interest of the person;
   50    (viii)  the  term "lender" means an insured depository institution (as
   51  defined in 12 USC section 1813); an insured credit union (as defined  in
   52  12  USC  section  1752);  a bank or association chartered under the Farm
   53  Credit Act of 1971 (12 U.S.C. 2001 et seq.); a leasing or trust  company
   54  that  is  an  affiliate of an insured depository institution; any person
   55  (including a successor or assignee of any such person) that makes a bona
   56  fide extension of credit to or takes or  acquires  a  security  interest
       S. 1409                            159                           A. 2109
 
    1  from  a nonaffiliated person; the Federal National Mortgage Association,
    2  the Federal Home Loan Mortgage  Corporation,  the  Federal  Agricultural
    3  Mortgage  Corporation,  or  any  other entity that in a bona fide manner
    4  buys  or  sells  loans  or  interests in loans; a person that insures or
    5  guarantees against a default in the repayment of an extension of credit,
    6  or acts as a surety with respect to an extension of credit, to a  nonaf-
    7  filiated  person;  and  a  person that provides title insurance and that
    8  acquires such site as a result of assignment or conveyance in the course
    9  of underwriting claims and claims settlements;
   10    (ix) the term "operational function" includes a function such as  that
   11  of  a  facility  or  plant  manager, operations manager, chief operating
   12  officer, or chief executive officer; and
   13    (x) the term "security interest" includes a right  under  a  mortgage,
   14  deed  of  trust,  assignment, judgment lien, pledge, security agreement,
   15  factoring agreement, or lease and any other right accruing to  a  person
   16  to  secure  the  repayment  of  money, the performance of a duty, or any
   17  other obligation by a nonaffiliated person.
   18    b. Such term includes any  person  owning  or  operating  an  inactive
   19  hazardous waste disposal site but does not include the state of New York
   20  or  a public corporation which acquired, and thereafter retained without
   21  participating in the management  of  such  site,  ownership  or  control
   22  involuntarily  by virtue of its function as sovereign. Neither the state
   23  of New York nor any public corporation shall incur  under  this  chapter
   24  any liability as to matters within the jurisdiction of the department as
   25  a  result  of  actions  taken in response to an emergency created by the
   26  release or threatened release of  hazardous  waste  by  another  person;
   27  provided  that  such  actions by the state or public corporation did not
   28  constitute reckless, willful, wanton, or intentional misconduct. As used
   29  in this paragraph:
   30    (i) "public corporation" means a public corporation as defined in  the
   31  general construction law;
   32    (ii) "involuntary acquisition of ownership or control" includes but is
   33  not limited to the following:
   34    (A)  acquisitions by the state or a public corporation in its capacity
   35  as   sovereign,   including   acquisitions   pursuant   to   abandonment
   36  proceedings, or escheat, or any other circumstance of involuntary acqui-
   37  sition in its capacity as sovereign;
   38    (B)  acquisitions  by the state or a public corporation, or its agent,
   39  acting as a conservator or receiver pursuant to a clear and direct stat-
   40  utory mandate or regulatory authority;
   41    (C) acquisitions of assets through foreclosure and its equivalents, or
   42  otherwise, by the state or a public corporation in the course of  admin-
   43  istering a loan, loan guarantee, or loan insurance program;
   44    (D)  acquisitions  by  the  state  or a public corporation pursuant to
   45  seizure or forfeiture authority; and
   46    (E) acquisitions by the state or a public corporation as the result of
   47  tax delinquency purposes; provided, that such ownership  or  control  is
   48  not retained primarily for investment purposes.
   49    (iii) "management participation" means that the state or public corpo-
   50  ration  is  actually participating in the management or operation of the
   51  property but does not include the mere capacity to influence, ability to
   52  influence, or unexercised right to control the operation of the  proper-
   53  ty.  Nothing  contained  in  this paragraph affects the applicability of
   54  paragraph a  of this subdivision in favor of  a  holder  of  a  security
   55  interest according to the terms thereof.
       S. 1409                            160                           A. 2109
 
    1    c.  Such  term  includes  any  person  owning or operating an inactive
    2  hazardous waste disposal site, including a fiduciary; provided, however,
    3  that such liability on the part of a  fiduciary  shall  not  exceed  the
    4  assets held in the fiduciary capacity if such person is not liable inde-
    5  pendently  of such person's ownership as a fiduciary or actions taken in
    6  a fiduciary capacity including, but  not  limited  to,  the  fiduciary's
    7  negligently causing or contributing to the release or threatened release
    8  of hazardous waste at such site.
    9    (i) For purposes of this paragraph:
   10    (A)  the  term  "fiduciary"  means  a person acting for the benefit of
   11  another party as a bona fide trustee;  executor;  administrator;  custo-
   12  dian;  guardian  of estates or guardian ad litem; receiver; conservator;
   13  committee of estates of incapacitated persons; personal  representative;
   14  trustee  (including  a successor to a trustee) under an indenture agree-
   15  ment, trust agreement, lease, or similar financing agreement,  for  debt
   16  securities, certificates of interest or certificates of participation in
   17  debt  securities, or other forms of indebtedness as to which the trustee
   18  is not, in the capacity of trustee, the lender; or representative in any
   19  other capacity that  the  department,  after  providing  public  notice,
   20  determines  to be similar to the various capacities previously described
   21  in this paragraph; and does not include either a person that  is  acting
   22  as  a  fiduciary  with respect to a trust or other fiduciary estate that
   23  was organized for the primary purpose of, or  is  engaged  in,  actively
   24  carrying  on  a  trade or business for profit, unless the trust or other
   25  fiduciary estate was created as part of, or to facilitate, one  or  more
   26  estate  plans  or  because  of  the  incapacity of a natural person or a
   27  person that acquires ownership or control of a property with the  objec-
   28  tive purpose of avoiding liability of the person or any other person.
   29    (B)  the  term  "fiduciary capacity" means the capacity of a person in
   30  holding title to a property, or otherwise having control of or an inter-
   31  est in a property, pursuant to the exercise of the  responsibilities  of
   32  the person as a fiduciary.
   33    (ii)  Nothing  in  this  paragraph affects the rights or immunities or
   34  other defenses that are available under law  that  is  applicable  to  a
   35  person  subject  to  this  subdivision;  or  creates any liability for a
   36  person or a private right of action against a  fiduciary  or  any  other
   37  person.
   38    (iii)  Nothing  in  this  paragraph applies to a person if that person
   39  acts in a capacity other than that of a fiduciary or  in  a  beneficiary
   40  capacity  and  in  that capacity, directly or indirectly benefits from a
   41  trust or fiduciary relationship; or is a  beneficiary  and  a  fiduciary
   42  with  respect  to the same fiduciary estate and as a fiduciary, receives
   43  benefits that exceed customary or  reasonable  compensation,  and  inci-
   44  dental benefits, permitted under other applicable law.
   45    d.  Such  term  includes  any  person  owning or operating an inactive
   46  hazardous waste disposal site, including an industrial development agen-
   47  cy created under the general municipal law, other than  one  that  holds
   48  bare  legal  title  to  such  site;  has not participated with any party
   49  responsible under law for the remediation of contamination  in,  on,  or
   50  from  such  site  to  attempt  to  have  such a party avoid its remedial
   51  liability; has not exercised any contractual rights it may have or  had,
   52  if  any,  under  the  lease, guarantee, or any other financing agreement
   53  pursuant to which the industrial development agency would assume control
   54  over the actual operation of the site; and has not taken  possession  or
   55  control  of  the  site.  Nothing in this paragraph affects the rights or
   56  immunities or other defenses that  are  available  under  law  that  are
       S. 1409                            161                           A. 2109
 
    1  applicable to an industrial development agency; or creates any liability
    2  for a person or a private right of action against an industrial develop-
    3  ment agency or any other person.
    4    e.  (i) Any other provision of law to the contrary notwithstanding, no
    5  not-for-profit corporation shall incur any liability for  any  statutory
    6  claims of the state under this title as an owner or operator of an inac-
    7  tive  hazardous  waste  disposal  site  or  a person responsible for the
    8  disposal of hazardous waste at or onto such site, if  such  site  is  or
    9  will  be  used  for community purposes and if such not-for-profit corpo-
   10  ration acquired and retains  such  site  without  participating  in  the
   11  development of such site.
   12    (ii)  The exemption from liability set forth in this section shall not
   13  limit any other defense, indemnification or privilege under local, state
   14  or federal law.
   15    (iii) When used in this section:
   16    (A) "Community purposes" shall mean an activity that the local munici-
   17  pal corporation has certified as being undertaken by the  not-for-profit
   18  corporation  acting on behalf of such municipal corporation, or as being
   19  in the public interest, including without limitation,  creation  of  new
   20  permanent  jobs,  construction  or  renovation  of  affordable  housing,
   21  historic preservation activities, provision of new or  revitalized  open
   22  space,  or  establishment  of other community facilities such as medical
   23  facilities or community centers; provided, that nothing in this  section
   24  shall  be  deemed  to  establish  a  relationship of principal and agent
   25  between  the  municipality  and  the  not-for-profit  corporation.  Such
   26  certification  may  be  withdrawn at any time if the municipality deter-
   27  mines that the certification was made as a result of a misrepresentation
   28  of a material fact by the not-for-profit corporation.
   29    (B) "Participating in development" means carrying out, or  causing  or
   30  permitting  the  carrying  out,  of  any above-grade improvements to the
   31  affected site; but does not include licensing, regulatory oversight,  or
   32  the  mere capacity to regulate or influence, or the unexercised right to
   33  control the operation of the site. For purposes hereof, participating in
   34  development does not include:
   35    (I) having the capacity to influence management of such site;
   36    (II) having the unexercised right to control such site  or  operations
   37  thereof;
   38    (III) holding, abandoning or releasing a security interest or tax lien
   39  on such site;
   40    (IV)  including  a condition relating to environmental compliance in a
   41  contract, permit, license or security agreement;
   42    (V) monitoring the terms and conditions of an agreement;
   43    (VI) monitoring one or more inspections of such site;
   44    (VII) participating in the marketing or determination of creditworthi-
   45  ness or income eligibility of prospective homeowners;
   46    (VIII) participating in development and allocation of sources and uses
   47  of project funding;
   48    (IX) exercising other remedies available under applicable laws;
   49    (X) applying for federal or state statutory site benefits.
   50    (iv) The exemption under this section shall not apply if  any  member,
   51  officer or director of the not-for-profit corporation is or was an offi-
   52  cer  or director of any person responsible for the site under applicable
   53  principles of statutory or common law liability, or any subsequent owner
   54  of such site, whether by election, designation , ex officio  or  in  any
   55  other capacity or manner.
       S. 1409                            162                           A. 2109
 
    1    (v)  Notwithstanding any other subdivision of this section, a not-for-
    2  profit corporation shall be subject to:
    3    (A)  all  summary  abatement  powers  of the commissioner set forth in
    4  section 71-0301 of the environmental conservation law; and
    5    (B) liability as an owner or operator of a site or a person  responsi-
    6  ble  for  the  disposal  of hazardous waste at or onto such site, if the
    7  not-for-profit corporation  by  willful  or  intentional  misconduct  or
    8  negligence allows a release of hazardous waste onto other property.
    9    (vi)  The  exemptions  from  liability  provided by this section shall
   10  continue to be effective with respect to a not-for-profit  corporation's
   11  ownership  of  an  affected  site only if the not-for-profit corporation
   12  which takes possession of such site seeks to sell,  lease  or  otherwise
   13  divest  itself of such site within five years or at the earliest practi-
   14  cable and reasonable time taking into  account  the  market  conditions,
   15  legal and regulatory requirements, zoning and planned usage of the site,
   16  and  the best interest of the not-for-profit corporation and the public,
   17  including the surrounding community. Sale of this site shall be  conclu-
   18  sive  proof  of  the  not-for-profit corporation's reasonable efforts to
   19  divest itself of the site. If the not-for-profit corporation  is  unable
   20  to  divest itself of the site within five years of the date on which the
   21  remediation of the site is completed,  such  not-for-profit  corporation
   22  shall  provide  a  report annually to the municipal corporation in which
   23  such site is located to establish that its efforts to divest  itself  of
   24  such  site  within  the preceding twelve months have been diligent. Such
   25  report shall document the actions of the not-for-profit  corporation  to
   26  comply with this subdivision, market conditions, the effects, if any, of
   27  contamination  on  the  site's  marketability,  and the reasonable steps
   28  taken by such not-for-profit corporation to render such site marketable.
   29    (vii) Any not-for-profit corporation that has taken possession  of  an
   30  affected  site  shall  notify the department of any release of hazardous
   31  waste or petroleum within ten days of obtaining actual knowledge of such
   32  release, unless a shorter notice period  is  required  under  any  other
   33  provision  of  law,  in  which  case the shorter notice period controls.
   34  Failure to notify the department within the ten day or shorter notifica-
   35  tion period shall result in the loss of the exemption set forth in  this
   36  section.
   37    (viii)  The  exemptions  from liability provided by this section shall
   38  not be assignable to any third party.
   39    5. "Waste" means [any garbage, refuse, sludge from a  waste  treatment
   40  plant,  water supply treatment plant, or air pollution control facility,
   41  and other discarded material, whether or not such material may eventual-
   42  ly be used for some other purpose, including solid,  liquid,  semisolid,
   43  or  contained  gaseous  material  resulting from industrial, commercial,
   44  mining and agricultural operations or  from  community  activities,  and
   45  source,  special nuclear or by-product material as defined in the Atomic
   46  Energy Act of 1954, as amended, except as may be  provided  by  existing
   47  agreements  between  the  state  of  New  York and the government of the
   48  United States, but does not  include  solid  or  dissolved  material  in
   49  domestic  sewage,  or  solid or dissolved materials in irrigation return
   50  flows or industrial  discharges  which  are  point  sources  subject  to
   51  permits  under  article seventeen of the environmental conservation law]
   52  waste as that term is defined in section 27-1301  of  the  environmental
   53  conservation law.
   54    §  41.  Subdivision  4  of section 1389-b of the public health law, as
   55  added by chapter 282 of the laws of 1979, is amended to read as follows:
       S. 1409                            163                           A. 2109
 
    1    4. (a) Any order issued pursuant to subdivision three of this section
,
    2  other than one issued on consent of the person,  shall  be  issued  only
    3  after  notice and the opportunity for hearing is provided to the persons
    4  who may be the subject of such order. The commissioner  shall  determine
    5  which  persons are responsible pursuant to said subdivision according to
    6  applicable principles of statutory or common law liability. Such persons
    7  shall be entitled to raise any statutory or common law defenses  at  any
    8  such  hearing, and such defenses shall have the same force and effect at
    9  such hearings as they would have in a court of law. In the event a hear-
   10  ing is held, no order shall be issued by the commissioner under subdivi-
   11  sion three of this section until a final decision has been rendered. Any
   12  such order shall be reviewable pursuant to article seventy-eight of  the
   13  civil  practice  law  and rules within thirty days after service of said
   14  order. The commissioner may request the participation  of  the  attorney
   15  general in such hearings.
   16    (b) There shall be no liability under this section for a person other-
   17  wise  liable  who  can establish by a preponderance of the evidence that
   18  the significant threat to  the  environment  attributable  to  hazardous
   19  waste  disposed  at an inactive hazardous waste disposal site was caused
   20  solely by an act of God; an act of war; or an act or omission of a third
   21  party other than an employee or agent of such person, or other than  one
   22  whose  act or omission occurs in connection with a contractual relation-
   23  ship, existing directly or indirectly, with such  person  (except  where
   24  the  sole  contractual  arrangement  arises  from a published tariff and
   25  acceptance for carriage by a common carrier or  rail),  if  such  person
   26  establishes  by  a  preponderance of the evidence that such person exer-
   27  cised due care with respect to the  hazardous  waste  concerned,  taking
   28  into consideration the characteristics of such hazardous waste, in light
   29  of  all  relevant  facts and circumstances, and took precautions against
   30  foreseeable acts or omissions of any such third  party  and  the  conse-
   31  quences  that  could  foreseeably result from such acts or omissions; or
   32  any combination of them. For  purposes  of  this  paragraph,  the  term,
   33  "contractual  relationship"  includes,  but  is  not  limited  to,  land
   34  contracts, deeds, or other instruments transferring title or possession,
   35  unless the real property on which the  site  concerned  is  located  was
   36  acquired by such person after the disposal or placement of the hazardous
   37  waste  on,  in, or at such site, and such person establishes one or more
   38  of the circumstances described in subparagraph (i), (ii),  or  (iii)  of
   39  this paragraph by a preponderance of the evidence:
   40    (i)  At  the  time  such person acquired the site, such person did not
   41  know and had no reason to know that any hazardous  waste  which  is  the
   42  subject  of the significant threat determination was disposed of on, in,
   43  or at the site.  To establish that such person has no  reason  to  know,
   44  such person must have undertaken, at the time of acquisition, all appro-
   45  priate  inquiry  into  the  previous  ownership  and  uses  of such site
   46  consistent with good commercial or customary practice in  an  effort  to
   47  minimize  liability. For purposes of the preceding sentence, the commis-
   48  sioner shall take into account any specialized knowledge  or  experience
   49  on  the  part  of such person, the relationship of the purchase price to
   50  the value of the property if uncontaminated, commonly known  or  reason-
   51  ably  ascertainable  information  about the property, the obviousness of
   52  the presence or likely presence of contamination at  the  property,  and
   53  the ability to detect such contamination by appropriate inspection; or
   54    (ii)  Such  person  is  a government entity which acquired the site by
   55  escheat, or through any other involuntary transfer or acquisition; or
       S. 1409                            164                           A. 2109
 
    1    (iii) Such person acquired the site by  inheritance  or  bequest,  and
    2  that  such person exercised due care with respect to the hazardous waste
    3  concerned, taking into consideration the characteristics of such hazard-
    4  ous waste, in light of all relevant facts and  circumstances,  and  took
    5  precautions  against  foreseeable  acts  or  omissions of any such third
    6  party and the consequences that could foreseeably result from such  acts
    7  or omissions.
    8    § 42. Section 1389-e of the public health law is REPEALED.
    9    §  43.  Subdivision  1  of  section 316-b of the real property law, as
   10  amended by chapter 140 of the laws of 1991, is amended and a new  subdi-
   11  vision 3 is added to read as follows:
   12    1.  On  and  after  July  first,  nineteen  hundred ninety-three, each
   13  recording officer must provide, at the expense  of  his  county,  proper
   14  books  for making an index of present owners of inactive hazardous waste
   15  disposal sites contained in the [annual  report]  registry  required  by
   16  section  27-1305  of the environmental conservation law. The index shall
   17  contain an alphabetical listing of all  owners  listed  in  such  annual
   18  report  completed  by  the  department  of  environmental  conservation,
   19  together with a reference, for each present owner, to the page and  year
   20  of  the  report where information regarding the inactive hazardous waste
   21  site may be located. The index shall also contain  the  tax  map  parcel
   22  number or the section, block and lot number of the site.
   23    3.  Each  recording officer shall record and index such instruments as
   24  may be required to be recorded pursuant to title thirteen or fourteen of
   25  article twenty-seven of the environmental  conservation  law,  or  title
   26  five of article fifty-six of the environmental conservation law, or part
   27  two  of  article twelve of the navigation law, or any regulation promul-
   28  gated pursuant thereto, or any order or  agreement  entered  into  under
   29  authority thereof or of any such regulations.
   30    §  44.  The  real  property tax law is amended by adding a new section
   31  485-i to read as follows:
   32    § 485-i. Brownfield site redevelopment exemption. 1. (a) Real property
   33  that is the subject of a voluntary agreement pursuant to title  fourteen
   34  of  article  twenty-seven of the environmental conservation law, and any
   35  improvements made on such property after the date  that  a  request  for
   36  participation  is  accepted  pursuant to section 27-1405 of the environ-
   37  mental conservation law, shall be exempt from taxation  and  special  ad
   38  valorem  levies  by any municipal corporation in which it is located for
   39  the period and to the extent herein provided.
   40    (b) For the first three years following the acceptance  of  a  request
   41  for  participation,  the  amount  of such exemption shall be one hundred
   42  percent of the "base amount", determined pursuant to subdivision two  of
   43  this  section.  In  the  fourth  year  the  amount shall be seventy-five
   44  percent of the base amount, in the fifth year the amount shall be  sixty
   45  percent  of  the  base  amount,  and  the  amount of the exemption shall
   46  decline by ten percentage points in each of the next six years resulting
   47  in an exemption of ten percent of the base amount in the tenth and final
   48  year.
   49    2. (a) The base amount of the exemption shall be  the  extent  of  the
   50  increase  in  assessed  value  attributable to such construction, alter-
   51  ation, installation, remediation or improvement  as  determined  in  the
   52  initial  year  for  which  application for exemption is made pursuant to
   53  this section. The base amount shall remain constant for  the  authorized
   54  term of the exemption, subject to the following:
   55    (i)  if  there  is  subsequent construction, alteration, installation,
   56  remediation or improvement during the term of exemption, the base amount
       S. 1409                            165                           A. 2109
 
    1  shall be revised to include the increase in assessed value  attributable
    2  to  such construction, alteration, installation, remediation or improve-
    3  ment.
    4    (ii)  if a change in level of assessment of fifteen percent or more is
    5  certified for an assessment roll pursuant to  the  rules  of  the  state
    6  board,  the  base  amount  shall  be adjusted by such change in level of
    7  assessment. The exemption on that assessment  roll  shall  thereupon  be
    8  recomputed,  notwithstanding  the  fact  that  the assessor receives the
    9  certification after the completion, verification and filing of the final
   10  assessment roll. In the event the assessor does not have custody of  the
   11  roll when such certification is received, the assessor shall certify the
   12  recomputed exemption to the local officers having custody and control of
   13  the  roll, and such local officers are hereby directed and authorized to
   14  enter the recomputed exemption certified by the assessor on the roll.
   15    (b) No such exemption shall be granted pursuant  to  this  subdivision
   16  concurrent  with  or subsequent to any other real property tax exemption
   17  granted to the same improvements to real property, except, where  during
   18  the  period  of  such  previous  exemption, payments in lieu of taxes or
   19  other payments were made to the local government in an amount that would
   20  have been equal to or greater than the amount  of  real  property  taxes
   21  that  would  have  been paid on such improvements had such property been
   22  granted an  exemption  pursuant  to  this  section.  In  such  case,  an
   23  exemption  shall  be granted for a number of years equal to the ten year
   24  exemption granted pursuant to this section less the number of years  the
   25  property would have been previously exempt from real property taxes.
   26    3.  Such exemption shall be granted only upon application by the owner
   27  of such real property on a form  prescribed  by  the  state  board.  The
   28  application shall be filed with the assessor of the assessing unit on or
   29  before the appropriate taxable status date of such assessing unit and no
   30  later  than  one  year from the date of completion of such construction,
   31  alteration, installation, remediation or improvement.
   32    4. If the assessor receives a timely and complete application  by  the
   33  owner  of  the real property, the assessor shall approve the application
   34  and such real property shall thereafter be exempt from taxation as here-
   35  in provided commencing with the assessment roll prepared after the taxa-
   36  ble status date referred to in subdivision three of  this  section.  The
   37  assessed  value  of any exemption granted pursuant to this section shall
   38  be entered by the assessor on the assessment roll with the taxable prop-
   39  erty, with the amount of the exemption entered in a separate column.
   40    5. Such exemption shall only be available if, after a public  hearing,
   41  the  governing  board  of a county, city, town or village adopts a local
   42  law, or a school district, other than a school district subject to arti-
   43  cle fifty-two of the education law, adopts a resolution  providing  that
   44  such  exemptions  shall  be given under this section to voluntary agree-
   45  ments relating to properties within the municipality. Such local law  or
   46  resolution  may  be  subsequently  repealed;  provided,  however, that a
   47  project in the course of construction and exemptions existing  prior  to
   48  such repeal shall not be subject to such repeal.
   49    6.  If  at  any time the governing body of the municipality finds that
   50  the voluntary agreement has  been  terminated  or  that  such  voluntary
   51  agreement is not being materially complied with, the tax exemption shall
   52  be terminated.
   53    § 45. Subdivisions 1, 2, 3, 6, paragraph (a) of subdivision 12, subdi-
   54  visions 13, 14 and 15 of section 97-b of the state finance law, subdivi-
   55  sions  1,  2 and paragraph (f) of subdivision 3 as amended and paragraph
   56  (g) of subdivision 3 as added by chapter 413 of the laws of 1996, subdi-
       S. 1409                            166                           A. 2109
 
    1  vision 3 as amended and subdivisions 13, 14 and 15 as added  by  chapter
    2  512  of  the  laws of 1986, paragraph (e) of subdivision 3 as amended by
    3  chapter 9 of the laws of 1994, subdivision 6 as amended by chapter 38 of
    4  the  laws of 1985, paragraph (a) of subdivision 12 as amended by section
    5  13 of part C of chapter 389 of the laws of 1997, are amended  and  three
    6  new subdivisions 15, 16 and 17 are added to read as follows:
    7    1. There is hereby established in the custody of the state comptroller
    8  a nonlapsing revolving fund to be known as the "hazardous waste remedial
    9  fund",  which  shall  consist  of a "site investigation and construction
   10  account" [and], an "industry fee transfer account[," and]", an "environ-
   11  mental restoration project account",  and  a  "hazardous  waste  cleanup
   12  account".
   13    2. Such fund shall consist of all of the following:
   14    (a)  all  moneys [appropriated for transfer] transferred to the fund's
   15  site investigation and construction account; (b)  all  fines  and  other
   16  sums  accumulated  in  the  fund  prior to April first, nineteen hundred
   17  eighty-eight pursuant to section 71-2725 of the environmental  conserva-
   18  tion  law  for deposit in the fund's site investigation and construction
   19  account; (c) [all moneys collected or  received  by  the  department  of
   20  taxation  and  finance  pursuant to section 27-0923 of the environmental
   21  conservation law  for  deposit  in  the  fund's  industry  fee  transfer
   22  account;  (d)  all moneys paid into the fund pursuant to section 72-0201
   23  of the environmental conservation law which shall be  deposited  in  the
   24  fund's industry fee transfer account; (e)] all moneys paid into the fund
   25  pursuant  to  section one hundred eighty-six of the navigation law which
   26  shall be deposited in the fund's industry fee  transfer  account;  [(f)]
   27  (d)  all  moneys  paid  into the fund by municipalities for repayment of
   28  landfill closure loans made pursuant to former  title  five  of  article
   29  fifty-two  of  the  environmental  conservation  law  for deposit in the
   30  fund's site investigation and construction account; [(g)] (e) all monies
   31  recovered under [section] sections 56-0503, 56-0505 and 56-0507  of  the
   32  environmental conservation law for deposit into the fund's environmental
   33  restoration  project  account; [and (h)] (f) all monies transferred from
   34  the remedial program transfer fund, created pursuant to subdivision five
   35  of section ninety-seven-cccc of  this  chapter,  for  deposit  into  the
   36  fund's hazardous waste cleanup account; and (g) other moneys credited or
   37  transferred  thereto  from  any  other fund or source for deposit in the
   38  fund's site investigation and construction account.
   39    3. Moneys of the hazardous waste remedial fund, except monies  in  the
   40  industry  fee  transfer  account,  when allocated, shall be available to
   41  [the department of environmental conservation] all state departments and
   42  agencies for the following purposes:
   43    (a) inactive hazardous waste disposal site remedial programs  pursuant
   44  to  section  27-1313  of  the environmental conservation law and section
   45  thirteen hundred eighty-nine-b of the public health law;
   46    (b) cleaning up or restoring to its  original  state  any  area  where
   47  hazardous  wastes  were disposed of or possessed unlawfully in violation
   48  of article twenty-seven of the environmental conservation law.  For  the
   49  purposes of this section "the original state of the area" shall mean the
   50  reasonably  ascertainable condition of the property immediately prior to
   51  the unlawful disposal or, if  it  is  impracticable  to  determine  such
   52  condition,  then it is the reasonable environmentally sound condition of
   53  the area;
   54    (c) inactive hazardous waste site identification, classification,  and
   55  investigation  actions including testing, analyses, record searches, and
   56  other expenditures necessary to develop  the  state  inactive  hazardous
       S. 1409                            167                           A. 2109
 
    1  waste  disposal  site remedial plan required pursuant to section 27-1305
    2  of the environmental conservation law;
    3    (d)  financing  the  non-federal  share of the cost of clean up[,] and
    4  site remediation activities, as well as post-closure operation and main-
    5  tenance costs,  pursuant  to  the  federal  Comprehensive  Environmental
    6  Response, Compensation and Liability Act of 1980;
    7    (e) emergency response action to clean up spills or abate other public
    8  health or environmental hazards involving hazardous wastes, except those
    9  provided for under the New York state environmental protection and spill
   10  compensation fund;
   11    (f) [the study of hazardous substance waste disposal sites pursuant to
   12  section  27-1316  of  the environmental conservation law and section one
   13  thousand three hundred eighty-nine-e of the public health law; and
   14    (g)] to undertake such remedial measures as the department of environ-
   15  mental conservation may determine necessary due to environmental  condi-
   16  tions  related  to the property subject to an agreement to provide state
   17  assistance under title five of article fifty-six  of  the  environmental
   18  conservation law that were unknown to such department at the time of its
   19  approval of such agreement which indicates that conditions on such prop-
   20  erty  are not sufficiently protective of human health for its reasonably
   21  anticipated uses or due to information received, in whole  or  in  part,
   22  after  such  department's approval of such agreement's final engineering
   23  report and certification, which indicates that such agreement's remedial
   24  activities are not sufficiently protective  of  human  health  for  such
   25  property's  reasonably  anticipated  uses; and, respecting the monies in
   26  the environmental restoration project account in excess of  ten  million
   27  dollars,  shall  provide  state  assistance  under title five of article
   28  fifty-six of the environmental conservation law;
   29    (g) with respect to moneys in the hazardous waste cleanup account,  to
   30  pay  the reasonable costs incurred by the state in negotiating and over-
   31  seeing implementation of voluntary agreements and conducting remediation
   32  under title  fourteen  of  article  twenty-seven  of  the  environmental
   33  conservation law; and
   34    (h)  with respect to moneys in the hazardous waste cleanup account, to
   35  provide state assistance pursuant to section nine hundred  seventy-r  of
   36  the general municipal law.
   37    6.  The  commissioner  of the department of environmental conservation
   38  shall make all reasonable efforts to recover  the  full  amount  of  any
   39  funds  expended  from  the fund pursuant to paragraph (a) of subdivision
   40  three of this section through litigation or cooperative agreements  with
   41  responsible persons. Any and all moneys recovered or reimbursed pursuant
   42  to  this  section  through voluntary agreements or court orders shall be
   43  deposited with the comptroller and credited to the account of such  fund
   44  from  which  such  expenditures  were  made; provided, however, that any
   45  moneys recovered or reimbursed for funds  expended  from  the  hazardous
   46  waste  cleanup account shall be deposited in the remedial program trans-
   47  fer fund.
   48    (a) The comptroller shall, on July  first,  nineteen  hundred  eighty-
   49  eight  and  on  each  succeeding  July  first  until  such  time  as the
   50  surcharges required pursuant to subdivision [fourteen] thirteen of  this
   51  section  are  imposed, estimate the amount of revenues to be received by
   52  the industry fee transfer account of this fund in  the  next  succeeding
   53  twenty months and the transfers which will be required to be made during
   54  the  same period. When calculating the estimate of industry fee transfer
   55  account revenues available for the purpose of  certifying,  pursuant  to
   56  this  subdivision,  when  such account's balance will be insufficient to
       S. 1409                            168                           A. 2109
 
    1  make the transfer required by subdivision eleven of  this  section,  the
    2  comptroller  shall  add to the amount estimated to actually be available
    3  an additional credit factor as  determined  by  paragraph  (b)  of  this
    4  subdivision.  If the comptroller determines that the industry fee trans-
    5  fer account will, at any time during the succeeding twenty month period,
    6  lack sufficient funds to make the transfer required by subdivision elev-
    7  en of this section, the comptroller shall so certify to the [state super
    8  fund management board, created pursuant to section 27-1319 of the  envi-
    9  ronmental conservation law, and to the] governor and the legislature.
   10    13. [Upon the receipt of a certification provided pursuant to subdivi-
   11  sion  twelve of this section, the state superfund management board shall
   12  review and analyze the historical pattern of  revenue  received  by  the
   13  industry  fee  transfer  account  and the long term projection of future
   14  transfers from such account, and shall  report  on  or  before  December
   15  first  of  such year to the governor and the legislature its recommenda-
   16  tions, if any, as to the sources of additional revenues which  could  be
   17  used  to supplement the revenues to be received by such fund in order to
   18  achieve the equal sharing of debt service costs as implemented in subdi-
   19  vision nine of this section.
   20    14.] In the absence of further direction by law, effective April first
   21  of the fiscal year immediately following the certification by the  comp-
   22  troller  made pursuant to subdivision twelve of this section, surcharges
   23  in the following amount shall be imposed: (a) twenty-five percent of the
   24  fees imposed by  sections  72-0402  and  72-0502  of  the  environmental
   25  conservation  law.  Notwithstanding  any  other  provision of law to the
   26  contrary, moneys collected from such surcharge  shall  be  deposited  in
   27  their entirety to the industry fee transfer account established pursuant
   28  to  subdivision  one  of  this  section;  (b)  fifty percent of the fees
   29  imposed by section 27-0923 of the environmental conservation law, except
   30  for those fees contained in paragraphs b and c of subdivision  one,  and
   31  paragraph  b  of  subdivision two of such section, which shall be exempt
   32  from such surcharge. Moneys  collected  from  such  surcharge  shall  be
   33  deposited  to  the industry fee transfer account established pursuant to
   34  subdivision one of this section.
   35    [15.] 14. On and after the date of such certification, the comptroller
   36  shall maintain records with respect to  such  account  to  reflect  each
   37  unpaid  transfer  for the period during which it is unpaid. On and after
   38  such date, any deposits in the industry fee transfer  account  shall  be
   39  immediately transferred to the general fund of the state until an amount
   40  equal  to  the  total  of  any unpaid transfers and accumulated interest
   41  shall have been transferred to the general fund.
   42    15. The comptroller shall, on the first day  of  July  succeeding  the
   43  state  fiscal  year  during  which  the bonds and notes issued under the
   44  environmental quality bond act of nineteen hundred eighty-six to finance
   45  the cleanup of inactive hazardous  waste  disposal  sites  in  aggregate
   46  exceed  ninety-five  percent  of  the amount authorized pursuant to such
   47  bond act, estimate the total debt service of such bonds and  notes.  The
   48  comptroller  shall  also estimate the state fiscal year in which the sum
   49  of the transfers required by subdivision eleven of this section and  the
   50  additional  credit  factor as determined by paragraph (b) of subdivision
   51  twelve of this section exceeds  fifty  percent  of  the  estimated  debt
   52  service  for  such bonds and notes. The comptroller shall certify to the
   53  governor and the legislature the estimated state fiscal year when  fifty
   54  percent of such estimated debt service will be exceeded.
   55    16.  Notwithstanding any law to the contrary, effective April first of
   56  the state fiscal year succeeding the  state  fiscal  year  certified  in
       S. 1409                            169                           A. 2109
 
    1  subdivision  fifteen  of this section, all moneys currently deposited in
    2  the industry fee transfer account of the hazardous waste  remedial  fund
    3  pursuant  to  subdivision  two of this section shall be deposited in the
    4  remedial  program  transfer fund.  Further, effective April first of the
    5  state fiscal year following such  certification,  subdivisions  thirteen
    6  and fourteen of this section shall be deemed repealed.
    7    17.  Notwithstanding  any  law to the contrary, and in accordance with
    8  section four of this chapter, the comptroller is hereby  authorized  and
    9  directed,  upon  the  request of the director of the budget, to transfer
   10  moneys from the site  investigation  and  construction  account  of  the
   11  hazardous  waste remedial fund to the hazardous waste cleanup account of
   12  the hazardous waste remedial fund.
   13    § 46. The state finance law is amended by adding a new section 97-cccc
   14  to read as follows:
   15    § 97-cccc. Remedial program transfer fund. 1. There is  hereby  estab-
   16  lished  in  the joint custody of the comptroller and the commissioner of
   17  taxation and finance a special fund to be known as the "remedial program
   18  transfer fund".
   19    2. Such fund shall consist of all of the following:
   20    (a) registration fees collected pursuant to subdivision two of section
   21  17-1009 of the environmental conservation law for deposit in this fund;
   22    (b) all license fees, fines, and penalties collected pursuant to para-
   23  graph (b) of subdivision one and paragraph (a) of  subdivision  four  of
   24  section  one  hundred  seventy-four  of  the  navigation  law, penalties
   25  collected pursuant to paragraphs (b) and  (c)  of  subdivision  four  of
   26  section  one  hundred  seventy-four-a  of  the  navigation  law,  moneys
   27  collected pursuant to section one hundred eighty-seven of the navigation
   28  law, and all penalties collected pursuant to section one  hundred  nine-
   29  ty-two of the navigation law;
   30    (c)  all  penalties collected pursuant to paragraph (c) of subdivision
   31  one and paragraph (b) of subdivision four of section one hundred  seven-
   32  ty-four  of the navigation law effective April first of the state fiscal
   33  year succeeding the state fiscal year certified in  subdivision  fifteen
   34  of section ninety-seven-b of this article;
   35    (d)  moneys  recovered  pursuant to subdivision six of section ninety-
   36  seven-b of this article for deposit in this fund;
   37    (e) all fees paid into the fund pursuant to paragraph b of subdivision
   38  one of section 72-0201 of the environmental conservation law;
   39    (f) all moneys collected or received by the department of taxation and
   40  finance pursuant to section 27-0923 of  the  environmental  conservation
   41  law;
   42    (g)  all  moneys paid into the fund pursuant to subdivision sixteen of
   43  section ninety-seven-b of this article;
   44    (h) all fees paid into the fund pursuant to  section  72-0403  of  the
   45  environmental conservation law;
   46    (i)  all  moneys paid into the fund pursuant to section 27-1415 of the
   47  environmental conservation law;
   48    (j) other moneys credited or transferred thereto from any  other  fund
   49  or source for deposit in the fund;
   50    (k)  all  interest accrued on any such moneys deposited into the fund;
   51  and
   52    (l) all moneys paid pursuant to subdivision ten of section 27-1313  of
   53  the  environmental  conservation  law and subdivision one of section one
   54  hundred eighty-one of the navigation law.
   55    3. Notwithstanding any law to the contrary,  and  in  accordance  with
   56  section  four  of this chapter, the comptroller is hereby authorized and
       S. 1409                            170                           A. 2109
 
    1  directed, upon the request of the director of the budget, for each state
    2  fiscal year to transfer from the general fund to  this  fund  up  to  an
    3  amount  equivalent  to the projected amount of moneys to be deposited or
    4  transferred  into  this  fund pursuant to paragraphs (a), (b), (c), (d),
    5  (e), (f), (g), (h), (i), and (l) of subdivision two of this section  for
    6  each such state fiscal year.
    7    4.  Revenues in the remedial program transfer fund shall be kept sepa-
    8  rate and shall not be commingled with any other moneys in the custody of
    9  the comptroller. All deposits of such revenues shall, if required by the
   10  comptroller, be secured by obligations of the United States  or  of  the
   11  state  having  a  market  value equal at all times to the amount of such
   12  deposits, and all banks and trust companies are authorized to give secu-
   13  rity for such deposits. Any such revenues in such  fund  may,  upon  the
   14  discretion  of  the comptroller, be invested in obligations in which the
   15  comptroller is authorized to invest pursuant to section ninety-eight  of
   16  this article.
   17    5.  Notwithstanding  any  law  to the contrary, and in accordance with
   18  section four of this chapter, the comptroller is hereby  authorized  and
   19  directed,  upon  the  request of the director of the budget, to transfer
   20  moneys deposited in the remedial program  transfer  fund,  and  interest
   21  accrued  thereon,  to the environmental protection and oil spill compen-
   22  sation fund or to the hazardous waste cleanup account of  the  hazardous
   23  waste remedial fund.
   24    §  47.  Subdivision 3 of section 362 of chapter 83 of the laws of 1995
   25  amending the state finance law and other laws relating to  bonds,  notes
   26  and  revenues,  as  amended by section 2 of part E of chapter 413 of the
   27  laws of 1999, is amended to read as follows:
   28    3. Sections fifteen through seventeen of this act  shall  take  effect
   29  immediately and shall be deemed to have been in full force and effect on
   30  and  after April 1, 1995[, and shall expire and be deemed repealed April
   31  1, 2004];
   32    § 48. This act shall take effect immediately; provided, that  sections
   33  three,  four, seventeen, eighteen, nineteen, twenty, twenty-one, twenty-
   34  two, twenty-three, twenty-four, twenty-six, twenty-nine,  thirty,  thir-
   35  ty-one,  thirty-five,  forty-five  and  forty-six  of  this act shall be
   36  deemed to have been in full force and effect on and after April 1, 2003;
   37  provided further, that subdivisions 13 and 14 of  section  97-b  of  the
   38  state  finance  law,  as  designated  by section forty-five of this act,
   39  shall be deemed repealed effective April first of the state fiscal  year
   40  following  the  certification  provided  for  in  subdivision 15 of such
   41  section 97-b; and provided further, that  the  state  comptroller  shall
   42  notify  the  legislative bill drafting commission upon the occurrence of
   43  the certification provided for in subdivision 15 of section 97-b of  the
   44  state  finance law in order that the commission may maintain an accurate
   45  and timely effective data base of the official text of the laws  of  the
   46  state  of New York in furtherance of effecting the provisions of section
   47  44 of the legislative law and section 70-b of the public officers law.
   48    § 2. Severability clause. If any clause, sentence, paragraph, subdivi-
   49  sion, section or part of this act shall be  adjudged  by  any  court  of
   50  competent  jurisdiction  to  be invalid, such judgment shall not affect,
   51  impair, or invalidate the remainder thereof, but shall  be  confined  in
   52  its  operation  to the clause, sentence, paragraph, subdivision, section
   53  or part thereof directly involved in the controversy in which such judg-
   54  ment shall have been rendered. It is hereby declared to be the intent of
   55  the legislature that this act would  have  been  enacted  even  if  such
   56  invalid provisions had not been included herein.
       S. 1409                            171                           A. 2109
 
    1    §  3.  This  act shall take effect immediately provided, however, that
    2  the applicable effective date of Parts A through AA of this act shall be
    3  as specifically set forth in the last section of such Parts.