Bill Text: NY S05729 | 2013-2014 | General Assembly | Amended
Bill Title: Relates to brownfield site cleanup; establishes environmental covenants; repeals provisions of law relating to brownfield redevelopment tax credits.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2014-01-08 - REFERRED TO ENVIRONMENTAL CONSERVATION [S05729 Detail]
Download: New_York-2013-S05729-Amended.html
S T A T E O F N E W Y O R K
________________________________________________________________________
5729--A
2013-2014 Regular Sessions
I N S E N A T E
June 10, 2013
___________
Introduced by Sen. GRISANTI -- read twice and ordered printed, and when
printed to be committed to the Committee on Environmental Conservation
-- committee discharged, bill amended, ordered reprinted as amended
and recommitted to said committee
AN ACT to amend the environmental conservation law and the tax law, in
relation to brownfield site cleanup; and to repeal section 31 of part
H of chapter 1 of the laws of 2003 amending the tax law relating to
brownfield redevelopment tax credits, relating thereto
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
1 Section 1. Subdivision 2 of section 27-1405 of the environmental
2 conservation law, as amended by section 2 of part A of chapter 577 of
3 the laws of 2004, is amended to read as follows:
4 2. (A) "Brownfield site" or "site" shall mean any real property, the
5 redevelopment or reuse of which may be complicated by the GROUND SURFACE
6 OR BELOW GROUND SURFACE LEVEL presence or [potential] SUSPECTED presence
7 of a contaminant REGARDLESS OF THE SOURCE OF SUCH CONTAMINANT. A BROWN-
8 FIELD SITE MAY BE CHARACTERIZED BY ANY OR ALL OF THE FOLLOWING:
9 (I) A CURRENT AND HISTORICAL LEGACY OF ABANDONMENT FROM PREVIOUS
10 INDUSTRIAL OR COMMERCIAL ACTIVITY.
11 (II) A CURRENT AND HISTORICAL LEGACY OF SEVERE ECONOMIC OR FUNCTIONAL
12 UNDERUTILIZATION INCLUDING USE OF SUCH SITE AS A HAZARDOUS WASTE OR
13 SOLID WASTE FACILITY.
14 (III) IN THE CASE OF A SITE CHARACTERIZED PRIMARILY BY INDUSTRIAL
15 ACTIVITY, FUNCTIONAL OBSOLESCENCE.
16 (IV) HISTORIC FILL MATERIAL, MEANING NON-INDIGENOUS OR NON-NATIVE
17 MATERIAL, HISTORICALLY DEPOSITED OR DISPOSED IN THE GENERAL AREA OF, OR
18 ON, A SITE TO CREATE USABLE LAND BY FILLING WATER BODIES, WETLANDS OR
19 TOPOGRAPHIC DEPRESSIONS, WHICH IS IN NO WAY CONNECTED WITH THE SUBSE-
20 QUENT OPERATIONS AT THE LOCATION OF THE EMPLACEMENT, AND WHICH WAS
21 CONTAMINATED PRIOR TO EMPLACEMENT.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD11406-02-3
S. 5729--A 2
1 (B) Such term shall not include real property:
2 [(a)] (I) listed in the registry of inactive hazardous waste disposal
3 sites under section 27-1305 of this article at the time of application
4 to this program and given a classification as described in subparagraph
5 one or two of paragraph b of subdivision two of section 27-1305 of this
6 article; provided, however except until July first, two thousand five,
7 real property listed in the registry of inactive hazardous waste
8 disposal sites under subparagraph two of paragraph b of subdivision two
9 of section 27-1305 of this article prior to the effective date of this
10 article, where such real property is owned by a volunteer shall not be
11 deemed ineligible to participate and further provided that the status of
12 any such site as listed in the registry shall not be altered prior to
13 the issuance of a certificate of completion pursuant to section 27-1419
14 of this title;
15 [(b)] (II) listed on the national priorities list established under
16 authority of 42 U.S.C. section 9605;
17 [(c)] (III) subject to an enforcement action under title seven or nine
18 of this article, [except] OR PERMITTED AS a treatment, storage or
19 disposal facility [subject to a permit]; provided, that nothing herein
20 contained shall be deemed otherwise to exclude from the scope of the
21 term "brownfield site" a hazardous waste treatment, storage or disposal
22 facility having interim status according to regulations promulgated by
23 the commissioner;
24 [(d)] (IV) subject to an order for cleanup pursuant to article twelve
25 of the navigation law or pursuant to title ten of article seventeen of
26 this chapter except such property shall not be deemed ineligible if it
27 is subject to a stipulation agreement; or
28 [(e)] (V) subject to any other on-going state or federal environmental
29 enforcement action related to the contamination which is at or emanating
30 from the site subject to the present application.
31 (VI) PROVIDED HOWEVER FOR OTHERWISE INELIGIBLE SITES GIVEN A CLASSI-
32 FICATION AS DESCRIBED IN SUBPARAGRAPH TWO OR THREE OF PARAGRAPH B OF
33 SUBDIVISION TWO OF SECTION 27-1305 OF THIS ARTICLE, AND INELIGIBLE SITES
34 DESCRIBED IN SUBPARAGRAPH (III) OF THIS PARAGRAPH, A VOLUNTEER SHALL NOT
35 BE DEEMED INELIGIBLE TO PARTICIPATE IN REGARDS TO ANY SUCH INELIGIBLE
36 SITE IF SUCH VOLUNTEER INTENDS TO ACQUIRE AND REDEVELOP SUCH REAL PROP-
37 ERTY AND ASSUME RESPONSIBILITY FOR ALL FUTURE COSTS TO COMPLETE ANY
38 REMAINING INVESTIGATION AND REMEDIATION UPON ACQUISITION OF SUCH REAL
39 PROPERTY, OR MAINTAIN LONG TERM INSTITUTIONAL AND ENGINEERING CONTROLS
40 OF THE SITE, AND IMPLEMENT A REDEVELOPMENT PROJECT ON THE SITE, THE SITE
41 CONFORMS TO THE DEFINITION OF A BROWNFIELD SITE IN PARAGRAPH (A) OF THIS
42 SUBDIVISION, AND ENTERS INTO A BROWNFIELD CLEANUP AGREEMENT IN ACCORD-
43 ANCE WITH SECTION 27-1409 OF THIS TITLE. ANY ON-GOING STATE ACTIONS
44 AND/OR ORDERS WILL NOT BE SUPERSEDED BY THE VOLUNTEER'S BROWNFIELD
45 CLEANUP AGREEMENT, BUT WILL REMAIN IN FULL FORCE AND EFFECT UNTIL SUCH
46 TIME AS THE VOLUNTEER RECEIVES A CERTIFICATE OF COMPLETION PURSUANT TO
47 SECTION 27-1419 OF THIS TITLE AND THEREAFTER TO THE EXTENT THE VOLUNTEER
48 OR SUBSEQUENT OWNER OR OPERATOR FAIL TO COMPLY WITH THE TERMS OF AN
49 ENVIRONMENTAL EASEMENT IF ONE HAD BEEN CREATED PURSUANT TO TITLE THIR-
50 TY-SIX OF ARTICLE SEVENTY-ONE, OR AN ENVIRONMENTAL COVENANT AS OF THIS
51 CHAPTER PURSUANT TO TITLE FORTY-FIVE OF ARTICLE SEVENTY-ONE OF THIS
52 CHAPTER. IN THE EVENT THE VOLUNTEER DOES NOT RECEIVE THE CERTIFICATE OF
53 COMPLETION OR SUCH CERTIFICATE OF COMPLETION IS REVOKED FOR ANY REASON,
54 ANY AND ALL STATE ENFORCEMENTS ACTION IMMEDIATELY WILL RESUME AFTER
55 TIMELY NOTICE TO ALL PARTIES.
S. 5729--A 3
1 S 2. The opening paragraph of subdivision 2 of section 27-1409 of the
2 environmental conservation law is designated paragraph (a) and a new
3 paragraph (b) is added to read as follows:
4 (B) NOTWITHSTANDING ANY PROVISION OF LAW TO THE CONTRARY, ALL APPLI-
5 CANTS ACCEPTING PARTICIPATION IN THE BROWNFIELD CLEANUP PROGRAM SHALL
6 PAY ALL REASONABLE STATE COSTS, HOWEVER, SUCH STATE COSTS SHALL NOT
7 EXCEED FIVE PERCENT OF THE TOTAL SITE PREPARATION COSTS, AS DEFINED BY
8 PARAGRAPH TWO OF SUBDIVISION (B) OF SECTION TWENTY-ONE OF THE TAX LAW,
9 PAID OR INCURRED BY THE APPLICANT, AND THE TOTAL STATE COSTS OWED SHALL
10 BE PAYABLE UPON NINETY DAYS OF, (I) THE ISSUANCE OF THE CERTIFICATE OF
11 COMPLETION FOR THE PROJECT, OR, (II) UPON TERMINATION OF A PARTICIPANT'S
12 BROWNFIELD CLEANUP AGREEMENT BY THE DEPARTMENT FOR FAILURE TO SUBSTAN-
13 TIALLY COMPLY WITH SUCH AGREEMENT'S TERMS AND CONDITIONS, OR (III), THE
14 VOLUNTARY WITHDRAWAL OF THE APPLICANT. FAILURE TO REMIT DUE PAYMENTS TO
15 THE STATE SHALL RESULT IN THE REVOCATION OF SUCH CERTIFICATE OF
16 COMPLETION, AND WILL PROHIBIT ANY FUTURE PARTICIPATION OF AN APPLICANT
17 IN THE PROGRAM. PAYMENT OF STATE COSTS SHALL BE MADE TO THE HAZARDOUS
18 WASTE REMEDIAL FUND ESTABLISHED PURSUANT TO SECTION NINETY-SEVEN-B OF
19 THE STATE FINANCE LAW.
20 S 3. Subdivision 5 of section 27-1419 of the environmental conserva-
21 tion law, as amended by section 9 of part A of chapter 577 of the laws
22 of 2004, is amended to read as follows:
23 5. A certificate of completion issued pursuant to this section may be
24 transferred [to the applicant's successors or assigns upon transfer or
25 sale of the brownfield site] BY THE APPLICANT OR SUBSEQUENT HOLDER OF
26 THE CERTIFICATE OF COMPLETION TO A SUCCESSOR TO A REAL PROPERTY INTER-
27 EST, INCLUDING LEGAL TITLE, EQUITABLE TITLE OR LEASEHOLD, IN ALL OR A
28 PART OF THE BROWNFIELD SITE FOR WHICH THE CERTIFICATE OF COMPLETION WAS
29 ISSUED. Further, a certificate of completion may be modified or revoked
30 by the commissioner upon a finding that:
31 (a) Either the applicant, or the applicant's successors or assigns,
32 has failed to comply with the terms and conditions of the brownfield
33 site cleanup agreement;
34 (b) The applicant made a misrepresentation of a material fact tending
35 to demonstrate that it was qualified as a volunteer;
36 (c) Either the applicant, or the applicant's successors or assigns
37 made a misrepresentation of a material fact tending to demonstrate that
38 the cleanup levels identified in the brownfield site cleanup agreement
39 were reached; or
40 (d) There is good cause for such modification or revocation.
41 S 4. Article 71 of the environmental conservation law is amended by
42 adding a new title 45 to read as follows:
43 TITLE 45
44 ENVIRONMENTAL COVENANTS
45 SECTION 71-4501. SHORT TITLE.
46 71-4503. DECLARATION OF POLICY AND STATEMENT OF PURPOSE.
47 71-4505. DEFINITIONS.
48 71-4507. NATURE OF RIGHTS; SUBORDINATION OF INTERESTS.
49 71-4509. CONTENTS OF ENVIRONMENTAL COVENANT.
50 71-4511. VALIDITY; EFFECT ON OTHER INSTRUMENTS.
51 71-4513. RELATIONSHIP TO OTHER LAND USE LAW.
52 71-4515. NOTICE.
53 71-4517. RECORDING.
54 71-4519. COORDINATION WITH LOCAL GOVERNMENTS.
55 71-4521. DURATION.
56 71-4523. AMENDMENT OR TERMINATION BY CONSENT.
S. 5729--A 4
1 71-4525. ENFORCEMENT OF ENVIRONMENTAL COVENANT.
2 71-4527. UNIFORMITY OF APPLICATION AND CONSTRUCTION.
3 71-4529. REGULATIONS.
4 71-4531. SEVERABILITY.
5 S 71-4501. SHORT TITLE.
6 THIS TITLE SHALL BE KNOWN AND MAY BE CITED AS THE "UNIFORM ENVIRON-
7 MENTAL COVENANTS ACT".
8 S 71-4503. DECLARATION OF POLICY AND STATEMENT OF PURPOSE.
9 THE LEGISLATURE HEREBY FINDS AND DECLARES THAT CONTAMINATED SITE REME-
10 DIAL PROGRAMS ARE AN IMPORTANT AND NECESSARY COMPONENT OF THE STATE'S
11 POLICY OF RESTORING AND REVITALIZING REAL PROPERTY LOCATED THROUGHOUT
12 NEW YORK STATE. THE LEGISLATURE FURTHER FINDS THAT WHEN AN ENVIRONMENTAL
13 REMEDIATION PROJECT LEAVES RESIDUAL CONTAMINATION AT LEVELS THAT HAVE
14 BEEN DETERMINED TO BE SAFE FOR A SPECIFIC USE, BUT NOT ALL USES, OR
15 INCLUDES ENGINEERED STRUCTURES THAT MUST BE MAINTAINED OR PROTECTED
16 AGAINST DAMAGE TO BE EFFECTIVE, IT IS NECESSARY TO PROVIDE AN EFFECTIVE
17 AND ENFORCEABLE MEANS OF ENSURING THE PERFORMANCE OF MAINTENANCE, MONI-
18 TORING OR OPERATION REQUIREMENTS, AND OF ENSURING THE POTENTIAL
19 RESTRICTION OF FUTURE USES OF THE LAND, INCLUDING RESTRICTIONS ON DRILL-
20 ING FOR OR PUMPING GROUNDWATER, FOR AS LONG AS ANY RESIDUAL CONTAM-
21 INATION REMAINS HAZARDOUS. THE LEGISLATURE DECLARES, THEREFORE, THAT IT
22 IS IN THE PUBLIC INTEREST TO CREATE LAND USE CONTROLS IN THE FORM OF
23 ENVIRONMENTAL COVENANTS BECAUSE SUCH ENVIRONMENTAL COVENANTS ARE NECES-
24 SARY FOR THE PROTECTION OF HUMAN HEALTH AND THE ENVIRONMENT AND TO
25 ACHIEVE THE REQUIREMENTS FOR REMEDIATION ESTABLISHED AT CONTAMINATED
26 SITES. IT IS THE INTENT OF THE LEGISLATURE THAT THE PROVISIONS OF THIS
27 SECTION SHALL NOT BE CONSTRUED AS LIMITING OR OTHERWISE AFFECTING ANY
28 AUTHORITY CONFERRED UPON THE DEPARTMENT BY ANY OTHER PROVISION OF LAW.
29 S 71-4505. DEFINITIONS.
30 WHEN USED IN THIS TITLE:
31 1. "ACTIVITY AND USE LIMITATIONS" MEANS RESTRICTIONS OR OBLIGATIONS
32 CREATED UNDER THIS TITLE WITH RESPECT TO REAL PROPERTY.
33 2. "AFFECTED LOCAL GOVERNMENT" MEANS EVERY MUNICIPALITY IN WHICH LAND
34 SUBJECT TO AN ENVIRONMENTAL COVENANT IS LOCATED.
35 3. "COMMON INTEREST COMMUNITY" MEANS A CONDOMINIUM, COOPERATIVE, OR
36 OTHER REAL PROPERTY ASSOCIATION OR ORGANIZATION WITH RESPECT TO WHICH A
37 PERSON, BY VIRTUE OF THE PERSON'S COMMON INTEREST, AS THAT TERM IS
38 DEFINED IN SECTION THREE HUNDRED THIRTY-NINE-E OF THE REAL PROPERTY LAW,
39 OR OWNERSHIP OF A UNIT, SHARE OR PARCEL OF REAL PROPERTY, IS OBLIGATED
40 TO PAY PROPERTY TAXES OR INSURANCE PREMIUMS, OR FOR MAINTENANCE, OR
41 IMPROVEMENT OF OTHER REAL PROPERTY DESCRIBED IN A RECORDED DECLARATION
42 OR COVENANT THAT CREATES THE COMMON INTEREST COMMUNITY.
43 4. "ENVIRONMENTAL COVENANT" MEANS A SERVITUDE RUNNING WITH THE LAND
44 ARISING UNDER AN ENVIRONMENTAL REMEDIAL PROGRAM THAT IMPOSES ACTIVITY
45 AND USE LIMITATIONS AS WELL AS MAINTENANCE, MONITORING OR OPERATION
46 REQUIREMENTS ASSOCIATED WITH THE ENVIRONMENTAL REMEDIAL PROGRAM.
47 5. "ENVIRONMENTAL REMEDIAL PROGRAM" MEANS A REMEDIAL PROGRAM CONDUCTED
48 AT REAL PROPERTY:
49 (A) UNDER A FEDERAL OR STATE PROGRAM GOVERNING ENVIRONMENTAL REMEDI-
50 ATION OF REAL PROPERTY, INCLUDING REMEDIAL PROGRAMS PURSUANT TO TITLES
51 THIRTEEN AND FOURTEEN OF ARTICLE TWENTY-SEVEN OF THIS CHAPTER, TITLE
52 FIVE OF ARTICLE FIFTY-SIX OF THIS CHAPTER AND ARTICLE TWELVE OF THE
53 NAVIGATION LAW;
54 (B) INCIDENT TO A DEPARTMENT-APPROVED CLOSURE OF A SOLID OR HAZARDOUS
55 WASTE MANAGEMENT UNIT;
S. 5729--A 5
1 (C) UNDER A CORRECTIVE ACTION PLAN PURSUANT TO TITLE NINE OF ARTICLE
2 TWENTY-SEVEN OF THIS CHAPTER; OR
3 (D) UNDER OTHER DEPARTMENT REMEDIAL PROGRAMS.
4 6. "HOLDER" MEANS THE GRANTEE OF AN ENVIRONMENTAL COVENANT AS SPECI-
5 FIED IN SUBDIVISION ONE OF SECTION 71-4507 OF THIS TITLE.
6 7. "PERSON" MEANS AN INDIVIDUAL, CORPORATION, BUSINESS TRUST, ESTATE,
7 TRUST, PARTNERSHIP, LIMITED LIABILITY COMPANY, ASSOCIATION, JOINT
8 VENTURE, PUBLIC CORPORATION, GOVERNMENT, GOVERNMENTAL SUBDIVISION, AGEN-
9 CY, OR INSTRUMENTALITY, OR ANY OTHER LEGAL OR COMMERCIAL ENTITY.
10 8. "RECORD", USED AS A NOUN, MEANS INFORMATION THAT IS INSCRIBED ON A
11 TANGIBLE MEDIUM OR THAT IS STORED IN AN ELECTRONIC OR OTHER MEDIUM AND
12 IS RETRIEVABLE IN PERCEIVABLE FORM.
13 S 71-4507. NATURE OF RIGHTS; SUBORDINATION OF INTERESTS.
14 1. THE DEPARTMENT SHALL BE A HOLDER AND MAY IDENTIFY ONE OR MORE ADDI-
15 TIONAL HOLDERS OR BENEFICIARIES. THE INTEREST OF A HOLDER IS AN INTEREST
16 IN REAL PROPERTY.
17 2. A RIGHT OF THE DEPARTMENT OR OTHER INTENDED BENEFICIARY UNDER THIS
18 TITLE OR UNDER AN ENVIRONMENTAL COVENANT, OTHER THAN A RIGHT AS A HOLD-
19 ER, IS NOT AN INTEREST IN REAL PROPERTY.
20 3. THE DEPARTMENT IS BOUND BY ANY OBLIGATION IT ASSUMES IN AN ENVIRON-
21 MENTAL COVENANT, BUT THE DEPARTMENT DOES NOT ASSUME OBLIGATIONS MERELY
22 BY SIGNING AN ENVIRONMENTAL COVENANT. ANY OTHER PERSON THAT SIGNS AN
23 ENVIRONMENTAL COVENANT IS BOUND BY THE OBLIGATIONS THE PERSON ASSUMES IN
24 THE COVENANT, BUT SIGNING THE COVENANT DOES NOT CHANGE OBLIGATIONS,
25 RIGHTS, OR PROTECTIONS GRANTED OR IMPOSED UNDER LAW OTHER THAN THIS
26 TITLE EXCEPT AS PROVIDED IN THE COVENANT.
27 4. THE FOLLOWING RULES APPLY TO INTERESTS IN REAL PROPERTY IN EXIST-
28 ENCE AT THE TIME AN ENVIRONMENTAL COVENANT IS CREATED OR AMENDED:
29 (A) AN INTEREST THAT HAS PRIORITY UNDER OTHER LAW IS NOT AFFECTED BY
30 AN ENVIRONMENTAL COVENANT UNLESS THE PERSON THAT OWNS THE INTEREST
31 SUBORDINATES THAT INTEREST TO THE COVENANT.
32 (B) THIS TITLE DOES NOT REQUIRE A PERSON THAT OWNS A PRIOR INTEREST TO
33 SUBORDINATE THAT INTEREST TO AN ENVIRONMENTAL COVENANT OR TO AGREE TO BE
34 BOUND BY THE COVENANT.
35 (C) A SUBORDINATION AGREEMENT MAY BE CONTAINED IN AN ENVIRONMENTAL
36 COVENANT COVERING REAL PROPERTY OR IN A SEPARATE RECORD. IF THE ENVIRON-
37 MENTAL COVENANT COVERS COMMONLY OWNED PROPERTY IN A COMMON INTEREST
38 COMMUNITY, THE SUBORDINATE AGREEMENT OR RECORD MAY BE SIGNED BY ANY
39 PERSON AUTHORIZED BY LAW, A RECORDED INSTRUMENT, OR THE GOVERNING BOARD
40 OF THE OWNERS' ASSOCIATION TO BIND THE COMMON INTEREST COMMUNITY.
41 (D) AN AGREEMENT BY A PERSON TO SUBORDINATE A PRIOR INTEREST TO AN
42 ENVIRONMENTAL COVENANT AFFECTS THE PRIORITY OF THAT PERSON'S INTEREST
43 BUT DOES NOT BY ITSELF IMPOSE ANY AFFIRMATIVE OBLIGATION ON THE PERSON
44 WITH RESPECT TO THE ENVIRONMENTAL COVENANT.
45 5. THE DEPARTMENT MAY REQUIRE THAT A SUBORDINATION AGREEMENT BE
46 OBTAINED AS A CONDITION OF ACCEPTING AN ENVIRONMENTAL COVENANT TO
47 PROTECT PUBLIC HEALTH AND THE ENVIRONMENT.
48 S 71-4509. CONTENTS OF ENVIRONMENTAL COVENANT.
49 1. AN ENVIRONMENTAL COVENANT MUST BE ON A FORM PRESCRIBED BY THE
50 DEPARTMENT AND:
51 (A) BE GRANTED BY THE TITLE OWNERS OF THE RELEVANT REAL ESTATE ONLY BY
52 AN INSTRUMENT THAT COMPLIES WITH THE REQUIREMENTS OF SECTION 5-703 OF
53 THE GENERAL OBLIGATIONS LAW AND IS SIGNED AND ACKNOWLEDGED IN THE MANNER
54 OF A DEED TO BE RECORDED;
55 (B) STATE THAT THE INSTRUMENT IS AN ENVIRONMENTAL COVENANT EXECUTED
56 PURSUANT TO THIS TITLE;
S. 5729--A 6
1 (C) DESCRIBE THE PROPERTY ENCUMBERED BY THE ENVIRONMENTAL COVENANT BY
2 ADEQUATE LEGAL DESCRIPTION OR BY REFERENCE TO A RECORDED MAP SHOWING ITS
3 BOUNDARIES AND BEARING THE SEAL AND SIGNATURE OF A LICENSED LAND
4 SURVEYOR OR, IF THE COVENANT ENCUMBERS THE ENTIRE PROPERTY DESCRIBED IN
5 A DEED OF RECORD, THE COVENANT MAY INCORPORATE BY REFERENCE THE
6 DESCRIPTION IN SUCH DEED, OTHERWISE IT SHALL REFER TO THE LIBER AND PAGE
7 OF THE DEED OR DEEDS OF THE RECORD OWNER OR OWNERS OF THE REAL PROPERTY
8 BURDENED BY THE ENVIRONMENTAL COVENANT;
9 (D) DESCRIBE THE ACTIVITY AND USE LIMITATIONS ON THE REAL PROPERTY;
10 (E) INCLUDE ANY ENGINEERING CONTROLS AND/OR MAINTENANCE REQUIRED FOR
11 THE ENVIRONMENTAL COVENANT OR PROVIDE A REFERENCE TO PUBLICLY AVAILABLE
12 DOCUMENTS CONTAINING SUCH INFORMATION;
13 (F) DESCRIBE THE REQUIREMENTS FOR NOTICE FOLLOWING TRANSFER OF A SPEC-
14 IFIED INTEREST IN, OR CONCERNING PROPOSED CHANGES IN USE OF, APPLICA-
15 TIONS FOR BUILDING PERMITS FOR, OR PROPOSALS FOR ANY SITE WORK AFFECTING
16 THE CONTAMINATION ON THE PROPERTY SUBJECT TO THE COVENANT;
17 (G) DESCRIBE THE REQUIREMENTS FOR PERIODIC REPORTING DESCRIBING
18 COMPLIANCE WITH THE COVENANT;
19 (H) DESCRIBE THE RIGHTS OF ACCESS TO THE PROPERTY GRANTED IN
20 CONNECTION WITH IMPLEMENTATION OR ENFORCEMENT OF THE COVENANT, INCLUDING
21 BUT NOT LIMITED TO THE RIGHT OF AGENTS, EMPLOYEES, OR OTHER REPRESEN-
22 TATIVES OF THE STATE TO ENTER AND INSPECT THE PROPERTY BURDENED BY AN
23 ENVIRONMENTAL COVENANT IN A REASONABLE MANNER AND AT REASONABLE TIMES TO
24 ASSURE COMPLIANCE WITH THE RESTRICTION;
25 (I) IDENTIFY THE DEPARTMENT AS THE HOLDER AND, IF APPROPRIATE, THE
26 FEDERAL GOVERNMENT OR OTHER APPROPRIATE PARTY AS AN ADDITIONAL HOLDER OR
27 INTENDED THIRD PARTY BENEFICIARY. IF THERE IS A HOLDER IN ADDITION TO
28 THE DEPARTMENT, THE DEPARTMENT MUST APPROVE THE HOLDER, AND THE HOLDER
29 MUST AGREE TO THE TERMS OF THE COVENANT;
30 (J) INCLUDE AN ACKNOWLEDGMENT BY THE DEPARTMENT OF ITS ACCEPTANCE OF
31 THE ENVIRONMENTAL COVENANT;
32 (K) BE SIGNED BY EVERY HOLDER AND, UNLESS WAIVED BY THE DEPARTMENT,
33 EVERY OWNER OF THE FEE SIMPLE OF THE REAL PROPERTY SUBJECT TO THE COVEN-
34 ANT;
35 (L) IDENTIFY THE NAME AND LOCATION OF ANY ADMINISTRATIVE RECORD FOR
36 THE ENVIRONMENTAL REMEDIAL PROGRAM REFLECTED IN THE ENVIRONMENTAL COVEN-
37 ANT;
38 (M) INCLUDE AN AGREEMENT TO INCORPORATE, EITHER IN FULL OR BY REFER-
39 ENCE, THE ENVIRONMENTAL COVENANT IN ANY LEASES, LICENSES, OR OTHER
40 INSTRUMENTS GRANTING A RIGHT TO USE THE PROPERTY THAT MAY BE AFFECTED BY
41 SUCH COVENANT; AND
42 (N) THE DEPARTMENT MAY REQUIRE THAT INFORMATION DELINEATED IN PARA-
43 GRAPHS (D), (E), (F), (G) AND (H) OF THIS SUBDIVISION BE ENUMERATED IN A
44 SITE MANAGEMENT PLAN IN LIEU OF BEING SET FORTH IN THE ENVIRONMENTAL
45 COVENANT.
46 2. IN ADDITION TO THE INFORMATION REQUIRED BY SUBDIVISION ONE OF THIS
47 SECTION, AN ENVIRONMENTAL COVENANT MAY CONTAIN OTHER INFORMATION,
48 RESTRICTIONS, AND REQUIREMENTS AGREED TO BY THE PERSONS WHO SIGNED IT,
49 INCLUDING ANY:
50 (A) LIMITATION ON AMENDMENT OR TERMINATION OF THE COVENANT IN ADDITION
51 TO THOSE CONTAINED IN SECTIONS 71-4521 AND 71-4523 OF THIS TITLE; AND
52 (B) RIGHTS OF THE HOLDER IN ADDITION TO ITS RIGHT TO ENFORCE THE
53 COVENANT PURSUANT TO SECTION 71-4525 OF THIS TITLE.
54 3. IN ADDITION TO OTHER CONDITIONS FOR ITS APPROVAL OF AN ENVIRON-
55 MENTAL COVENANT, THE DEPARTMENT MAY REQUIRE THOSE PERSONS SPECIFIED BY
S. 5729--A 7
1 THE DEPARTMENT WHO HAVE INTERESTS IN THE REAL PROPERTY TO SIGN THE
2 COVENANT.
3 4. THE TITLE OWNERS SHALL FURNISH TO THE DEPARTMENT ABSTRACTS OF TITLE
4 AND OTHER DOCUMENTS SUFFICIENT TO ENABLE THE DEPARTMENT TO DETERMINE
5 THAT THE ENVIRONMENTAL COVENANTS SHALL BE AN EFFECTIVE AND ENFORCEABLE
6 MEANS OF ENSURING:
7 (A) THE PERFORMANCE OF MAINTENANCE, MONITORING AND OPERATING REQUIRE-
8 MENTS; AND
9 (B) ACTIVITIES AND USE LIMITATIONS.
10 5. UNTIL SUCH TIME AS THE ENVIRONMENTAL COVENANT IS EXTINGUISHED, THE
11 PROPERTY DEED AND ALL SUBSEQUENT INSTRUMENTS OF CONVEYANCE RELATING TO
12 THE SUBJECT PROPERTY SHALL STATE IN AT LEAST FIFTEEN-POINT BOLD-FACED
13 TYPE: "THIS PROPERTY IS SUBJECT TO AN ENVIRONMENTAL COVENANT HELD BY
14 THE NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION PURSUANT TO
15 TITLE 45 OF ARTICLE 71 OF THE ENVIRONMENTAL CONSERVATION LAW." THE PROP-
16 ERTY DEED AND ALL SUBSEQUENT INSTRUMENTS OF CONVEYANCE RELATING TO THE
17 PROPERTY ENCUMBERED BY THE COVENANT SHALL REFERENCE, BY BOOK AND PAGE
18 NUMBER, THE ENVIRONMENTAL COVENANT. SUCH DEED AND INSTRUMENT SHALL ALSO
19 SPECIFY THAT THE ELIGIBLE PROPERTY IS SUBJECT TO THE RESTRICTIONS
20 CONTAINED IN SUCH COVENANT. AN INSTRUMENT FOR THE PURPOSE OF CREATING,
21 CONVEYING, MODIFYING, OR TERMINATING AN ENVIRONMENTAL COVENANT SHALL NOT
22 BE EFFECTIVE UNLESS RECORDED.
23 S 71-4511. VALIDITY; EFFECT ON OTHER INSTRUMENTS.
24 1. AN ENVIRONMENTAL COVENANT THAT COMPLIES WITH THIS TITLE RUNS WITH
25 THE LAND.
26 2. AN ENVIRONMENTAL COVENANT THAT IS OTHERWISE EFFECTIVE IS VALID AND
27 ENFORCEABLE EVEN IF:
28 (A) IT IS NOT APPURTENANT TO AN INTEREST IN REAL PROPERTY;
29 (B) IT IS NOT OF A CHARACTER THAT HAS BEEN RECOGNIZED TRADITIONALLY AT
30 COMMON LAW;
31 (C) IT IMPOSES A NEGATIVE BURDEN;
32 (D) IT IMPOSES AN AFFIRMATIVE OBLIGATION ON A PERSON HAVING AN INTER-
33 EST IN THE REAL PROPERTY OR ON THE HOLDER;
34 (E) THE BENEFIT OR BURDEN DOES NOT TOUCH OR CONCERN REAL PROPERTY; OR
35 (F) THERE IS NO PRIVITY OF ESTATE OR CONTRACT.
36 3. AN INSTRUMENT THAT CREATES RESTRICTIONS OR OBLIGATIONS WITH RESPECT
37 TO REAL PROPERTY THAT WOULD QUALIFY AS ACTIVITY AND USE LIMITATIONS
38 EXCEPT FOR THE FACT THAT THE INSTRUMENT WAS RECORDED BEFORE THE EFFEC-
39 TIVE DATE OF THIS TITLE IS NOT INVALID OR UNENFORCEABLE BECAUSE OF ANY
40 OF THE LIMITATIONS ON ENFORCEMENT OF INTERESTS DESCRIBED IN SUBDIVISION
41 TWO OF THIS SECTION OR BECAUSE IT WAS IDENTIFIED AS AN EASEMENT, SERVI-
42 TUDE, DEED RESTRICTION, OR OTHER INTEREST. THIS TITLE DOES NOT APPLY IN
43 ANY OTHER RESPECT TO SUCH AN INSTRUMENT.
44 4. THIS TITLE DOES NOT INVALIDATE OR RENDER UNENFORCEABLE ANY INTER-
45 EST, WHETHER DESIGNATED AS AN ENVIRONMENTAL COVENANT OR OTHER INTEREST,
46 THAT IS OTHERWISE ENFORCEABLE UNDER THE LAWS OF THIS STATE.
47 5. THIS TITLE SHALL NOT AFFECT ANY INTERESTS OR RIGHTS IN REAL PROPER-
48 TY WHICH ARE NOT ENVIRONMENTAL COVENANTS, AND SHALL NOT AFFECT THE
49 RIGHTS OF OWNERS TO CONVEY ANY INTERESTS IN REAL PROPERTY WHICH THEY
50 COULD NOW CREATE UNDER EXISTING LAW WITHOUT REFERENCE TO THE TERMS OF
51 THIS TITLE. NOTHING IN THIS TITLE SHALL DIMINISH THE POWERS GRANTED BY
52 ANY OTHER LAW TO ACQUIRE INTERESTS OR RIGHTS IN REAL PROPERTY BY
53 PURCHASE, GIFT, EMINENT DOMAIN, OR OTHERWISE AND TO USE THE SAME FOR
54 PUBLIC PURPOSES.
55 S 71-4513. RELATIONSHIP TO OTHER LAND USE LAW.
S. 5729--A 8
1 THIS TITLE DOES NOT AUTHORIZE A USE OF REAL PROPERTY THAT IS OTHERWISE
2 PROHIBITED BY ZONING, BY LAW OTHER THAN THIS TITLE REGULATING USE OF
3 REAL PROPERTY, OR BY A RECORDED INSTRUMENT THAT HAS PRIORITY OVER THE
4 ENVIRONMENTAL COVENANT. AN ENVIRONMENTAL COVENANT MAY PROHIBIT OR
5 RESTRICT USES OF REAL PROPERTY WHICH ARE AUTHORIZED BY ZONING OR BY LAW
6 OTHER THAN THIS TITLE.
7 S 71-4515. NOTICE.
8 1. A COPY OF AN ENVIRONMENTAL COVENANT, AND ANY AMENDMENT OR TERMI-
9 NATION THEREOF, SHALL BE PROVIDED IN THE MANNER REQUIRED BY THE DEPART-
10 MENT TO:
11 (A) EACH PERSON THAT SIGNED THE COVENANT;
12 (B) EACH PERSON HOLDING A RECORDED INTEREST IN THE REAL PROPERTY
13 SUBJECT TO THE COVENANT;
14 (C) EACH PERSON IN POSSESSION OF THE REAL PROPERTY SUBJECT TO THE
15 COVENANT;
16 (D) EACH AFFECTED LOCAL GOVERNMENT; AND
17 (E) ANY OTHER PERSON THE DEPARTMENT REQUIRES.
18 2. THE VALIDITY OF A COVENANT IS NOT AFFECTED BY FAILURE TO PROVIDE A
19 COPY OF THE COVENANT AS REQUIRED UNDER THIS SECTION.
20 3. THE DEPARTMENT SHALL INCLUDE A COPY OF EACH ENVIRONMENTAL COVENANT
21 IN THE DATABASE CREATED PURSUANT TO SECTION 27-1415 OF THIS CHAPTER AND
22 MAKE SUCH DATABASE READILY SEARCHABLE.
23 S 71-4517. RECORDING.
24 1. AN ENVIRONMENTAL COVENANT AND ANY AMENDMENT OR TERMINATION OF THE
25 COVENANT MUST BE RECORDED IN THE OFFICE OF THE RECORDING OFFICER IN THE
26 MANNER PRESCRIBED BY ARTICLE NINE OF THE REAL PROPERTY LAW IN EVERY
27 COUNTY IN WHICH ANY PORTION OF THE REAL PROPERTY SUBJECT TO THE COVENANT
28 IS LOCATED. FOR PURPOSES OF INDEXING, A HOLDER SHALL BE TREATED AS A
29 GRANTEE.
30 2. EXCEPT AS OTHERWISE PROVIDED IN SUBDIVISION TWO OF SECTION 71-4521
31 OF THIS TITLE, AN ENVIRONMENTAL COVENANT IS SUBJECT TO THE LAWS OF THIS
32 STATE GOVERNING RECORDING AND PRIORITY OF INTERESTS IN REAL PROPERTY.
33 S 71-4519. COORDINATION WITH LOCAL GOVERNMENTS.
34 WHENEVER AN AFFECTED LOCAL GOVERNMENT RECEIVES AN APPLICATION FOR A
35 BUILDING PERMIT OR ANY OTHER APPLICATION AFFECTING LAND USE OR DEVELOP-
36 MENT OF LAND THAT IS SUBJECT TO AN ENVIRONMENTAL COVENANT AND THAT MAY
37 RELATE TO OR IMPACT SUCH COVENANT, THE AFFECTED LOCAL GOVERNMENT SHALL
38 NOTIFY THE DEPARTMENT AND REFER SUCH APPLICATION TO THE DEPARTMENT. THE
39 DEPARTMENT SHALL EVALUATE WHETHER THE APPLICATION IS CONSISTENT WITH THE
40 ENVIRONMENTAL COVENANT AND SHALL NOTIFY THE AFFECTED LOCAL GOVERNMENT OF
41 ITS DETERMINATION IN A TIMELY FASHION, CONSIDERING THE TIME FRAME FOR
42 THE LOCAL GOVERNMENT'S REVIEW OF THE APPLICATION. THE AFFECTED LOCAL
43 GOVERNMENT SHALL NOT APPROVE THE APPLICATION UNTIL IT RECEIVES APPROVAL
44 FROM THE DEPARTMENT.
45 S 71-4521. DURATION.
46 1. AN ENVIRONMENTAL COVENANT IS PERPETUAL UNLESS IT IS:
47 (A) BY ITS TERMS LIMITED TO A SPECIFIC DURATION OR TERMINATED BY THE
48 OCCURRENCE OF A SPECIFIC EVENT; OR
49 (B) EXTINGUISHED OR AMENDED BY A RELEASE OR AMENDMENT OF THE ENVIRON-
50 MENTAL COVENANT EXECUTED BY THE DEPARTMENT AND FILED WITH THE OFFICE OF
51 THE RECORDING OFFICER FOR THE COUNTY OR COUNTIES WHERE THE LAND IS SITU-
52 ATED IN THE MANNER PRESCRIBED BY ARTICLE NINE OF THE REAL PROPERTY LAW.
53 2. EXCEPT AS OTHERWISE PROVIDED IN SUBDIVISION ONE OF THIS SECTION, AN
54 ENVIRONMENTAL COVENANT MAY NOT BE EXTINGUISHED, LIMITED, OR IMPAIRED
55 THROUGH FORECLOSURE OF A LIEN, ISSUANCE OF A TAX DEED, FORECLOSURE OF A
56 TAX LIEN, OR APPLICATION OF THE DOCTRINE OF ADVERSE POSSESSION,
S. 5729--A 9
1 PRESCRIPTION, EMINENT DOMAIN, ABANDONMENT, WAIVER, LACK OF ENFORCEMENT,
2 OR ACQUIESCENCE, OR A SIMILAR DOCTRINE.
3 S 71-4523. AMENDMENT OR TERMINATION BY CONSENT.
4 1. AN ENVIRONMENTAL COVENANT MAY BE AMENDED OR TERMINATED BY CONSENT
5 ONLY IF THE AMENDMENT OR TERMINATION IS SIGNED IN THE MANNER PRESCRIBED
6 BY SECTION 71-4509 OF THIS TITLE BY:
7 (A) THE DEPARTMENT; AND
8 (B) UNLESS WAIVED BY THE DEPARTMENT, THE CURRENT OWNER OF THE FEE
9 SIMPLE OF THE REAL PROPERTY SUBJECT TO THE COVENANT.
10 2. IF AN INTEREST IN REAL PROPERTY IS SUBJECT TO AN ENVIRONMENTAL
11 COVENANT, THE INTEREST IS NOT AFFECTED BY AN AMENDMENT OF THE COVENANT
12 UNLESS THE CURRENT OWNER OF THE INTEREST CONSENTS TO THE AMENDMENT OR
13 HAS WAIVED IN A WRITING, SIGNED IN THE MANNER PRESCRIBED BY SECTION
14 71-4509 OF THIS TITLE, THE RIGHT TO CONSENT TO AMENDMENTS.
15 S 71-4525. ENFORCEMENT OF ENVIRONMENTAL COVENANT.
16 1. A CIVIL ACTION FOR INJUNCTIVE OR OTHER EQUITABLE RELIEF FOR
17 VIOLATION OF AN ENVIRONMENTAL COVENANT MAY BE MAINTAINED BY:
18 (A) A PARTY TO THE COVENANT;
19 (B) THE DEPARTMENT;
20 (C) ANY AFFECTED LOCAL GOVERNMENT;
21 (D) ANY PERSON TO WHOM THE COVENANT EXPRESSLY GRANTS POWER TO ENFORCE,
22 OR IS IDENTIFIED IN THE COVENANT AS AN INTENDED BENEFICIARY; OR
23 (E) A PERSON WHOSE INTEREST IN THE REAL PROPERTY OR WHOSE COLLATERAL
24 OR LIABILITY MAY BE AFFECTED BY THE ALLEGED VIOLATION OF THE COVENANT.
25 2. THE ENVIRONMENTAL COVENANT IS ENFORCEABLE AGAINST THE OWNER OF THE
26 BURDENED PROPERTY, ANY LESSEES, AND ANY PERSON USING THE LAND.
27 3. A PERSON IS NOT RESPONSIBLE FOR OR SUBJECT TO LIABILITY FOR ENVI-
28 RONMENTAL REMEDIATION SOLELY BECAUSE IT HAS THE RIGHT TO ENFORCE AN
29 ENVIRONMENTAL COVENANT.
30 4. ENFORCEMENT SHALL NOT BE DEFEATED BECAUSE OF ANY SUBSEQUENT ADVERSE
31 POSSESSION, LACHES, ESTOPPEL, OR WAIVER. NO GENERAL LAW OF THE STATE
32 WHICH OPERATES TO DEFEAT THE ENFORCEMENT OF ANY INTEREST IN REAL PROPER-
33 TY SHALL OPERATE TO DEFEAT THE ENFORCEMENT OF ANY ENVIRONMENTAL COVENANT
34 UNLESS SUCH GENERAL LAW EXPRESSLY STATES THE INTENT TO DEFEAT THE
35 ENFORCEMENT OF SUCH COVENANT OR PROVIDES FOR THE EXERCISE OF THE POWER
36 OF EMINENT DOMAIN.
37 5. FOR ANY PERSON WHO INTENTIONALLY VIOLATES AN ENVIRONMENTAL COVENANT
38 THE DEPARTMENT MAY REVOKE THE CERTIFICATE OF COMPLETION PROVIDED BY
39 SECTION 27-1419 OF THIS CHAPTER AS TO THE RELEVANT REAL ESTATE.
40 S 71-4527. UNIFORMITY OF APPLICATION AND CONSTRUCTION.
41 IN APPLYING AND CONSTRUING THIS TITLE, CONSIDERATION MUST BE GIVEN TO
42 THE NEED TO PROMOTE UNIFORMITY OF THE LAW WITH RESPECT TO ITS SUBJECT
43 MATTER AMONG STATES THAT ENACT IT.
44 S 71-4529. REGULATIONS.
45 THE DEPARTMENT IS AUTHORIZED TO PROMULGATE RULES AND REGULATIONS
46 NECESSARY AND APPROPRIATE TO CARRY OUT THE PURPOSES OF THIS TITLE.
47 S 71-4531. SEVERABILITY.
48 THE PROVISIONS OF THIS TITLE SHALL BE SEVERABLE, AND IF ANY CLAUSE,
49 SENTENCE, PARAGRAPH, SUBDIVISION, OR PART OF THIS TITLE SHALL BE
50 ADJUDGED BY ANY COURT OF COMPETENT JURISDICTION TO BE INVALID, SUCH
51 JUDGMENT SHALL NOT AFFECT, IMPAIR OR INVALIDATE THE REMAINDER THEREOF,
52 BUT SHALL BE CONFINED IN ITS OPERATION TO THE CLAUSE, SENTENCE, PARA-
53 GRAPH, SUBDIVISION, OR PART THEREOF DIRECTLY INVOLVED IN THE CONTROVERSY
54 IN WHICH SUCH JUDGMENT SHALL HAVE BEEN RENDERED; PROVIDED THAT IF AN
55 ENVIRONMENTAL COVENANT CREATED PURSUANT TO THIS TITLE IS DETERMINED BY
56 ANY COURT OF COMPETENT JURISDICTION TO BE LAND OR WATER OR AN INTEREST
S. 5729--A 10
1 IN LAND OR WATER SUBJECT TO THE PROVISIONS OF ARTICLE FOURTEEN OF THE
2 CONSTITUTION, THEN THE AUTHORITY OF THE STATE TO HOLD OR ACQUIRE SUCH
3 COVENANT AND THE CONVEYANCE TO THE STATE OF SUCH COVENANT SHALL BE VOID
4 AB INITIO.
5 S 5. Subdivision (b) of section 27-1318 of the environmental conserva-
6 tion law, as amended by section 2 of part E of chapter 577 of the laws
7 of 2004, is amended to read as follows:
8 (b) Within sixty days of commencement of the remedial design, the
9 owner of an inactive hazardous waste disposal site, and/or any person
10 responsible for implementing a remedial program at such site, where
11 institutional or engineering controls are employed pursuant to this
12 title, shall execute an environmental easement pursuant to title thir-
13 ty-six of article seventy-one of this chapter OR AN ENVIRONMENTAL COVEN-
14 ANT PURSUANT TO TITLE FORTY-FIVE OF ARTICLE SEVENTY-ONE OF THIS CHAPTER.
15 S 6. Paragraph (d) of subdivision 7 of section 27-1415 of the environ-
16 mental conservation law, as added by section 1 of part A of chapter 1 of
17 the laws of 2003, is amended to read as follows:
18 (d) The commissioner shall create, update, and maintain a database
19 system for public information purposes and to monitor and track all
20 brownfield sites subject to this title. Data incorporated into such
21 system for each site for which information has been collected pursuant
22 to this title shall include, but shall not be limited to, a site summa-
23 ry, name of site owner, location, status of site remedial activity,
24 [and, if one has been created pursuant to title thirty-six of article
25 seventy-one of this chapter, a copy of the environmental easement,] and
26 a contact number to obtain additional information. THE DATABASE SHALL
27 ALSO INCLUDE FOR EACH SITE A COPY OF THE ENVIRONMENTAL EASEMENT, IF ONE
28 HAS BEEN CREATED PURSUANT TO TITLE THIRTY-SIX OF ARTICLE SEVENTY-ONE OF
29 THIS CHAPTER, OR A COPY OF THE ENVIRONMENTAL COVENANT, IF ONE HAS BEEN
30 CREATED PURSUANT TO TITLE FORTY-FIVE OF ARTICLE SEVENTY-ONE OF THIS
31 CHAPTER. Sites shall be added to such system upon the execution of a
32 brownfield site cleanup agreement [pursuant to section 27-1409 of this
33 title]. If and when an environmental easement OR COVENANT is modified or
34 extinguished, the copy of the environmental easement OR COVENANT
35 contained in the database shall be updated accordingly. Such database
36 shall be in such a format that it can be readily searched by affected
37 local governments and the public for purposes including but not limited
38 to determining whether an environmental easement OR COVENANT has been
39 recorded for a site pursuant to title thirty-six OR FORTY-FIVE of arti-
40 cle seventy-one of this chapter. The database shall be available elec-
41 tronically. Information from this database shall be incorporated into
42 the geographic information system created and maintained by the depart-
43 ment pursuant to section 3-0315 of this chapter.
44 S 7. Paragraph (e) of subdivision 2 of section 27-1419 of the environ-
45 mental conservation law, as added by section 1 of part A of chapter 1 of
46 the laws of 2003, is amended to read as follows:
47 (e) a certification that any use restrictions, institutional controls,
48 engineering controls and/or any operation and maintenance requirements
49 applicable to the site are contained in an environmental easement
50 created and recorded pursuant to title thirty-six of article seventy-one
51 of this chapter OR AN ENVIRONMENTAL COVENANT CREATED AND RECORDED PURSU-
52 ANT TO TITLE FORTY-FIVE OF SUCH ARTICLE and that any affected local
53 governments, as defined in title thirty-six of SUCH article [seventy-one
54 of this chapter] have been notified that such easement OR COVENANT has
55 been recorded;
S. 5729--A 11
1 S 8. Paragraph (g) of subdivision 2 of section 56-0503 of the environ-
2 mental conservation law, as amended by section 4 of part D of chapter 1
3 of the laws of 2003, is amended to read as follows:
4 (g) An agreement by the municipality that it shall put into place any
5 engineering and/or institutional controls (including environmental ease-
6 ments pursuant to title thirty-six of article seventy-one of this chap-
7 ter OR ENVIRONMENTAL COVENANTS PURSUANT TO TITLE FORTY-FIVE OF SUCH
8 ARTICLE) that the department may deem necessary to allow the contem-
9 plated use to proceed, that such engineering and/or institutional
10 controls shall be binding on such municipality, any successor in title,
11 and any lessees and that any successors in title and any lessees cannot
12 challenge state enforcement of such controls;
13 S 9. Paragraph 5 of subdivision (a) of section 21 of the tax law, as
14 amended by section 1 of part H of chapter 577 of the laws of 2004, is
15 amended to read as follows:
16 (5) Applicable percentage. For purposes of paragraphs two, three and
17 four of this subdivision, the applicable percentage shall be twelve
18 percent [in the case of credits claimed under article nine, nine-A,
19 thirty-two or thirty-three of this chapter, and ten percent in the case
20 of credits claimed under article twenty-two of this chapter,] except
21 that where at least fifty percent of the area of the qualified site
22 relating to the credit provided for in this section is located in an
23 environmental zone as defined in paragraph six of subdivision (b) of
24 this section, the applicable percentage shall be increased by an addi-
25 tional eight percent. Provided, however, as afforded in section 27-1419
26 of the environmental conservation law, if the certificate of completion
27 indicates that the qualified site has been remediated to Track 1 as that
28 term is described in subdivision four of section 27-1415 of the environ-
29 mental conservation law, the applicable percentage set forth in the
30 first sentence of this paragraph shall be increased by an additional two
31 percent.
32 S 10. Subparagraph (A) of paragraph 3-a of subdivision (a) of section
33 21 of the tax law, as added by chapter 390 of the laws of 2008, is
34 amended to read as follows:
35 (A) Notwithstanding any other provision of law to the contrary, the
36 tangible property credit component available for any qualified site
37 pursuant to paragraph three of this subdivision shall not exceed thir-
38 ty-five million dollars or three times THE SUM OF the costs included in
39 the calculation of the site preparation credit component and the on-site
40 groundwater remediation credit component under paragraphs two and four,
41 respectively, of this subdivision, AND THE COSTS THAT WOULD HAVE BEEN
42 INCLUDED IN THE CALCULATION OF SUCH COMPONENTS IF NOT TREATED AS AN
43 EXPENSE AND DEDUCTED PURSUANT TO SECTION 198 OF THE INTERNAL REVENUE
44 CODE, whichever is less; provided, however, that: (1) in the case of a
45 qualified site to be used primarily for manufacturing activities, the
46 tangible property credit component available for any qualified site
47 pursuant to paragraph three of this subdivision shall not exceed
48 [forty-five] ONE HUNDRED FIFTY million dollars or [six] TWENTY times THE
49 SUM OF the costs included in the calculation of the site preparation
50 credit component and the on-site groundwater remediation credit compo-
51 nent under paragraphs two and four, respectively, of this subdivision,
52 AND THE COSTS THAT WOULD HAVE BEEN INCLUDED IN THE CALCULATION OF SUCH
53 COMPONENTS IF NOT TREATED AS AN EXPENSE AND DEDUCTED PURSUANT TO SECTION
54 198 OF THE INTERNAL REVENUE CODE, whichever is less; and (2) the
55 provisions of this paragraph shall not apply to any qualified site for
56 which the department of environmental conservation has issued a notice
S. 5729--A 12
1 to the taxpayer before June twenty-third, two thousand eight that its
2 request for participation has been accepted under subdivision six of
3 section 27-1407 of the environmental conservation law.
4 S 11. Paragraph 6 of subdivision (b) of section 21 of the tax law, as
5 amended by section 1 of part H of chapter 577 of the laws of 2004,
6 subparagraph (B) and the closing paragraph as amended by section 1 of
7 part G of chapter 62 of the laws of 2006, is amended to read as follows:
8 (6) Environmental zones (EN-Zones). An "environmental zone" shall mean
9 an area designated as such by the commissioner of economic development.
10 Such areas so designated are areas which are census tracts and block
11 numbering areas which, as of the [two thousand] MOST RECENT census,
12 satisfy either of the following criteria:
13 (A) areas that have both:
14 (i) a poverty rate of at least twenty percent for the year to which
15 the data relate; and
16 (ii) an unemployment rate of at least one and one-quarter times the
17 statewide unemployment rate for the year to which the data relate, or;
18 (B) areas that have a poverty rate of at least two times the poverty
19 rate for the county in which the areas are located for the year to which
20 the data relate [provided, however, that a qualified site shall only be
21 deemed to be located in an environmental zone under this subparagraph
22 (B) if such site was the subject of a brownfield site cleanup agreement
23 pursuant to section 27-1409 of the environmental conservation law that
24 was entered into prior to September first, two thousand ten].
25 Such designation shall be made and a list of all such environmental
26 zones shall be established by the commissioner of economic development
27 no later than December thirty-first, two thousand [four provided, howev-
28 er, that a qualified site shall only be deemed to be located in an envi-
29 ronmental zone under subparagraph (B) of this paragraph if such site was
30 the subject of a brownfield site cleanup agreement pursuant to section
31 27-1409 of the environmental conservation law that was entered into
32 prior to September first, two thousand ten] FIFTEEN.
33 S 12. Paragraph 5 of subdivision (a) of section 22 of the tax law, as
34 amended by section 4 of part H of chapter 577 of the laws of 2004,
35 subparagraph (B) and the closing paragraph as amended by section 2 of
36 part G of chapter 62 of the laws of 2006, is amended to read as follows:
37 (5) Environmental zones (EN-Zones). An "environmental zone" shall mean
38 an area designated as such by the commissioner of economic development.
39 Such areas so designated are areas which are census tracts and block
40 numbering areas which, as of the [two thousand] MOST RECENT census,
41 satisfy either of the following criteria:
42 (A) areas that have both:
43 (i) a poverty rate of at least twenty percent for the year to which
44 the data relate;
45 (ii) an unemployment rate of at least one and one-quarter times the
46 statewide unemployment rate for the year to which the data relate, or;
47 (B) areas that have a poverty rate of at least two times the poverty
48 rate for the county in which the areas are located for the year to which
49 the data relate[, provided, however, that a qualified site shall only be
50 deemed to be located in an environmental zone under this subparagraph
51 (B) if such site was the subject of a brownfield site cleanup agreement
52 pursuant to section 27-1409 of the environmental conservation law that
53 was entered into prior to September first, two thousand ten].
54 Such designation shall be made and a list of all such environmental
55 zones shall be established by the commissioner of economic development
56 no later than December thirty-first, two thousand [four provided, howev-
S. 5729--A 13
1 er, that a qualified site shall only be deemed to be located in an envi-
2 ronmental zone under subparagraph (B) of this paragraph if such site was
3 the subject of a brownfield site cleanup agreement pursuant to section
4 27-1409 of the environmental conservation law that was entered into
5 prior to September first, two thousand ten] FIFTEEN.
6 S 13. Subdivision (a) of section 23 of the tax law, as amended by
7 section 10 of part H of chapter 577 of the laws of 2004, is amended to
8 read as follows:
9 (a) Allowance of credit. General. A taxpayer subject to tax under
10 article nine, nine-A, twenty-two, thirty-two or thirty-three of this
11 chapter shall be allowed a credit against such tax, pursuant to the
12 provisions referenced in subdivision (e) of this section. The amount of
13 such credit shall be equal to the lesser of [thirty] NINETY thousand
14 dollars or fifty percent of the premiums paid on or after the date of
15 the brownfield site cleanup agreement executed by the taxpayer and the
16 department of environmental conservation pursuant to section 27-1409 of
17 the environmental conservation law by the taxpayer for environmental
18 remediation insurance issued with respect to a qualified site.
19 S 14. Section 31 of part H of chapter 1 of the laws of 2003 amending
20 the tax law relating to brownfield redevelopment tax credits, is
21 REPEALED.
22 S 15. Severability. If any clause, sentence, paragraph, subdivision,
23 section or part of this act shall be adjudged by any court of competent
24 jurisdiction to be invalid, such judgment shall not affect, impair or
25 invalidate the remainder thereof, but shall be confined in its operation
26 to the clause, sentence, paragraph, subdivision, section or part thereof
27 directly involved in the controversy in which such judgment shall have
28 been rendered. It is hereby declared to be the intent of the legislature
29 that this act would have been enacted even if such invalid provisions
30 had not been included herein.
31 S 16. This act shall take effect immediately and shall apply to a
32 qualified site for which the commissioner of environmental conservation
33 has issued a notice to the taxpayer or other applicant after July 1,
34 2014 that its request for participation has been accepted under subdivi-
35 sion 6 of section 27-1407 of the environmental conservation law.
