Bill Text: NY S08071 | 2009-2010 | General Assembly | Introduced
Bill Title: Relates to eligibility for acceptance into the brownfield cleanup program; relates to the assignment of brownfield redevelopment tax credits.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2010-06-04 - REFERRED TO ENVIRONMENTAL CONSERVATION [S08071 Detail]
Download: New_York-2009-S08071-Introduced.html
S T A T E O F N E W Y O R K
________________________________________________________________________
8071
I N S E N A T E
June 4, 2010
___________
Introduced by Sen. THOMPSON -- read twice and ordered printed, and when
printed to be committed to the Committee on Environmental Conservation
AN ACT to amend the environmental conservation law, the tax law, the
general municipal law, and chapter 174 of the laws of 1968 constitut-
ing the New York state urban development corporation act, in relation
to eligibility for acceptance into the brownfield cleanup program and
assignment of the brownfield redevelopment tax credits provided with
respect to such program; and to repeal certain provisions of the envi-
ronmental conservation law and the tax law relating thereto
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
1 Section 1. Subdivisions 2 and 4 of section 27-1405 of the environ-
2 mental conservation law, subdivision 2 as amended by section 2 of part A
3 of chapter 577 of the laws of 2004 and subdivision 4 as added by section
4 1 of part A of chapter 1 of the laws of 2003, are amended to read as
5 follows:
6 2. "Brownfield site" or "site" shall mean any real property[, the
7 redevelopment or reuse of which may be complicated by the presence or
8 potential presence of] WHERE a contaminant IS KNOWN TO BE PRESENT AT
9 LEVELS EXCEEDING APPLICABLE HEALTH-BASED OR ENVIRONMENTAL STANDARDS OR
10 IS REASONABLY EXPECTED TO BE PRESENT BASED ON HISTORIC COMMERCIAL OR
11 INDUSTRIAL USE OF THE SITE AS ESTABLISHED BY A PHASE I REPORT AS DEFINED
12 IN REGULATIONS PROMULGATED BY THE DEPARTMENT. Such term shall not
13 include real property:
14 (a) listed in the registry of inactive hazardous waste disposal sites
15 under section 27-1305 of this article at the time of application to this
16 program and given a classification as described in subparagraph one or
17 two of paragraph b of subdivision two of section 27-1305 of this arti-
18 cle; provided, however except until July first, two thousand five, real
19 property listed in the registry of inactive hazardous waste disposal
20 sites under subparagraph two of paragraph b of subdivision two of
21 section 27-1305 of this article prior to the effective date of this
22 article, where such real property is owned by a volunteer shall not be
23 deemed ineligible to participate and further provided that the status of
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD14226-04-0
S. 8071 2
1 any such site as listed in the registry shall not be altered prior to
2 the issuance of a certificate of completion pursuant to section 27-1419
3 of this title;
4 (b) listed on the national priorities list established under authority
5 of 42 U.S.C. section 9605;
6 (c) subject to an enforcement action under title seven or nine of this
7 article, [except] OR PERMITTED AS a treatment, storage or disposal
8 facility [subject to a permit]; provided, that nothing herein contained
9 shall be deemed otherwise to exclude from the scope of the term "brown-
10 field site" a hazardous waste treatment, storage or disposal facility
11 having interim status according to regulations promulgated by the
12 commissioner;
13 (d) subject to an order for cleanup pursuant to article twelve of the
14 navigation law or pursuant to title ten of article seventeen of this
15 chapter except such property shall not be deemed ineligible if it is
16 subject to a stipulation agreement; or
17 (e) subject to any other on-going state or federal environmental
18 enforcement action related to the contamination which is at or emanating
19 from the site subject to the present application.
20 4. "Brownfield site cleanup agreement" shall mean an agreement
21 executed in accordance with section 27-1409 of this title by an appli-
22 cant and the department for the purpose of completing a brownfield site
23 remedial program FOR THOSE SITES FOR WHICH THE DEPARTMENT HAS ISSUED A
24 NOTICE TO THE APPLICANT ON OR BEFORE JULY FIRST, TWO THOUSAND TEN THAT
25 ITS REQUEST FOR PARTICIPATION HAS BEEN ACCEPTED UNDER SUBDIVISION SIX OF
26 SECTION 27-1407 OF THIS TITLE. FOR THOSE SITES FOR WHICH THE DEPARTMENT
27 HAS ISSUED SUCH NOTICE AFTER JULY FIRST, TWO THOUSAND TEN, A BROWNFIELD
28 SITE CLEANUP AGREEMENT SHALL MEAN THE ACCEPTANCE OF A REQUEST TO PARTIC-
29 IPATE IN THE BROWNFIELD CLEANUP PROGRAM PURSUANT TO SUBDIVISION SIX OF
30 SECTION 27-1407 OF THIS TITLE AND THE APPLICANT'S ACCEPTANCE OF THE
31 TERMS OF SUCH PARTICIPATION PURSUANT TO SECTION 27-1409 OF THIS TITLE,
32 WITH THE DATE OF THE APPLICANT'S ACCEPTANCE DEEMED TO BE THE DATE OF THE
33 BROWNFIELD SITE CLEANUP AGREEMENT.
34 S 2. Subdivision 1 of section 27-1407 of the environmental conserva-
35 tion law, as amended by section 3 of part A of chapter 577 of the laws
36 of 2004, is amended to read as follows:
37 1. A person who seeks to participate in this program shall submit a
38 request to the department on a form provided by the department. Such
39 form shall include information to be determined by the department suffi-
40 cient to allow the department to determine eligibility and the current,
41 intended and reasonably anticipated future land use of the site pursuant
42 to section 27-1415 of this title. IF THE PERSON WHO SEEKS TO PARTIC-
43 IPATE IN THIS PROGRAM IS ALSO SEEKING TO RECEIVE THE TANGIBLE PROPERTY
44 COMPONENT OF THE BROWNFIELD REDEVELOPMENT TAX CREDIT PURSUANT TO PARA-
45 GRAPH THREE OF SUBDIVISION (A) OF SECTION TWENTY-ONE OF THE TAX LAW SUCH
46 PERSON SHALL:
47 (A) SUBMIT INFORMATION SUFFICIENT TO DEMONSTRATE THAT (I) THE SITE HAS
48 BEEN ABANDONED FOR A PERIOD IN EXCESS OF FIFTEEN YEARS, (II) THE SITE OR
49 A PART THEREOF IS WITHIN OR IMMEDIATELY ADJACENT TO AN ENVIRONMENTAL
50 ZONE AS DEFINED IN PARAGRAPH SIX OF SUBDIVISION (B) OF SECTION
51 TWENTY-ONE OF THE TAX LAW, (III) THE PROJECTED COST OF THE INVESTIGATION
52 AND REMEDIATION WHICH IS PROTECTIVE FOR THE ANTICIPATED USE OF THE SITE
53 EXCEEDS THE CERTIFIED APPRAISED VALUE OF THE PROPERTY ABSENT CONTAM-
54 INATION, OR (IV) THE SITE IS TO BE DEVELOPED AS AFFORDABLE HOUSING WITH-
55 IN A LOW OR MODERATE INCOME CENSUS TRACT AND (A) TWENTY PERCENT OF THE
56 UNITS ARE INCOME RESTRICTED; OR (B) A LOW INCOME HOUSING TAX CREDIT
S. 8071 3
1 PROJECT AND TWENTY PERCENT OF THE UNITS ARE INCOME RESTRICTED OR A
2 PROJECT THAT HAS A MINIMUM OF FIFTY PERCENT OF THE TOTAL UNITS INCOME
3 RESTRICTED WITH AT LEAST TWENTY PERCENT OF THOSE UNITS AT OR BELOW
4 EIGHTY PERCENT OF AREA MEDIAN INCOME (AMI) AND SUBJECT TO AN AGREEMENT
5 WITH A MUNICIPALITY, THE STATE, THE FEDERAL GOVERNMENT, OR AN INSTRUMEN-
6 TALITY THEREOF, WHERE SUCH AGREEMENT RESTRICTS OCCUPANCY OF THOSE UNITS
7 TO RESIDENTS WHO QUALIFY IN ACCORDANCE WITH AN INCOME TEST;
8 (B) SUBMIT AN INVESTIGATION REPORT SUFFICIENT TO DEMONSTRATE THAT THE
9 SITE REQUIRES REMEDIATION IN ORDER TO MEET THE REMEDIAL REQUIREMENTS OF
10 THIS TITLE; AND
11 (C) FOR ANY SITE LOCATED WITHIN A BROWNFIELD OPPORTUNITY AREA AS
12 DESIGNATED BY THE SECRETARY OF STATE PURSUANT TO SECTION NINE HUNDRED
13 SEVENTY-R OF THE GENERAL MUNICIPAL LAW, A DEMONSTRATION THAT THE DEVEL-
14 OPMENT OF THE SITE WILL BE IN CONFORMANCE WITH SUCH BROWNFIELD OPPORTU-
15 NITY AREA.
16 S 3. Subdivision 3 of section 27-1407 of the environmental conserva-
17 tion law, as amended by section 3 of part A of chapter 577 of the laws
18 of 2004, is amended to read as follows:
19 3. The department shall notify the person requesting participation in
20 this program within [ten] THIRTY days after receiving such request that
21 such request is either complete or incomplete. In the event the applica-
22 tion is determined to be incomplete the department shall specify in
23 writing the missing necessary information required pursuant to this
24 article to complete the application and shall have ten days after
25 receipt of the missing information to issue a written determination if
26 the application is complete.
27 S 4. Subdivision 6 of section 27-1407 of the environmental conserva-
28 tion law, as added by section 1 of part A of chapter 1 of the laws of
29 2003, is amended to read as follows:
30 6. The department shall use all best efforts to expeditiously notify
31 the applicant within forty-five days after receiving [their] A request
32 for participation that such request is either accepted or rejected, AND,
33 FOR ANY APPLICANT SEEKING TO RECEIVE THE TANGIBLE PROPERTY COMPONENT OF
34 THE BROWNFIELD REDEVELOPMENT TAX CREDIT PURSUANT TO PARAGRAPH THREE OF
35 SUBDIVISION (A) OF SECTION TWENTY-ONE OF THE TAX LAW, A DETERMINATION
36 WHETHER THE CRITERIA FOR RECEIVING SUCH COMPONENT AS SET FORTH IN SUBDI-
37 VISION ONE OF THIS SECTION HAVE BEEN MET.
38 S 5. Paragraphs (c) and (d) of subdivision 8 of section 27-1407 of the
39 environmental conservation law, as amended by section 3 of part A of
40 chapter 577 of the laws of 2004, are amended and a new paragraph (e) is
41 added to read as follows:
42 (c) there is an order providing for the investigation, removal, or
43 remediation of contamination relating to the brownfield site against the
44 person who is requesting participation; [or]
45 (d) [The] THE person requesting participation is subject to an
46 outstanding claim as provided in subdivision four of this section[.]; OR
47 (E) THE PERSON'S PARTICIPATION IN ANY REMEDIATION PROGRAM UNDER THE
48 DEPARTMENT'S OVERSIGHT WAS TERMINATED BY THE DEPARTMENT FOR FAILURE TO
49 SUBSTANTIALLY COMPLY WITH AN AGREEMENT OR ORDER.
50 S 6. Section 27-1409 of the environmental conservation law is REPEALED
51 and a new section 27-1409 is added to read as follows:
52 S 27-1409. TERMS OF PARTICIPATION.
53 1. WITHIN FIFTEEN DAYS OF RECEIPT OF A NOTICE PURSUANT TO SUBDIVISION
54 SIX OF SECTION 27-1407 OF THIS TITLE THAT ITS REQUEST FOR PARTICIPATION
55 HAS BEEN ACCEPTED, THE APPLICANT SHALL, WITHIN FIFTEEN DAYS, ADVISE THE
56 DEPARTMENT IN WRITING WHETHER IT ACCEPTS THE DEPARTMENT'S ELIGIBILITY
S. 8071 4
1 DETERMINATION AND THE TERMS AND CONDITIONS OF PARTICIPATION AS PROVIDED
2 IN SUBDIVISION TWO OF THIS SECTION, THE REGULATIONS PROMULGATED AND
3 GUIDANCE ISSUED PURSUANT TO THIS TITLE, AND OTHER TERMS AND CONDITIONS
4 AS MAY BE CONTAINED IN THE NOTICE. IF THE APPLICANT DOES NOT SO ADVISE
5 THE DEPARTMENT OR DECLINES TO ACCEPT SUCH TERMS AND CONDITIONS, THE
6 APPLICATION SHALL BE DEEMED DENIED.
7 2. ALL APPLICANTS ACCEPTING PARTICIPATION IN THE BROWNFIELD CLEANUP
8 PROGRAM IN ACCORDANCE WITH SUBDIVISION ONE OF THIS SECTION ARE SUBJECT
9 TO THE FOLLOWING TERMS AND CONDITIONS:
10 (A) THE BOUNDARIES OF THE REAL PROPERTY THAT WILL BE CONSIDERED THE
11 PARTICIPATING BROWNFIELD SITE FOR PURPOSES OF THIS TITLE SHALL BE THOSE
12 SET FORTH IN THE DEPARTMENT'S NOTICE PURSUANT TO SUBDIVISION SIX OF
13 SECTION 27-1407 OF THIS TITLE;
14 (B) THE APPLICANT SHALL PAY FOR STATE COSTS INCURRED AFTER THE DATE OF
15 THE DEPARTMENT'S NOTICE PURSUANT TO SUBDIVISION SIX OF SECTION 27-1407
16 OF THIS TITLE; PROVIDED, HOWEVER, THAT WITH RESPECT TO A BROWNFIELD SITE
17 WHICH THE DEPARTMENT HAS DETERMINED CONSTITUTES A SIGNIFICANT THREAT TO
18 THE PUBLIC HEALTH OR ENVIRONMENT THE DEPARTMENT MAY INCLUDE A PROVISION
19 REQUIRING THE APPLICANT TO PROVIDE A TECHNICAL ASSISTANCE GRANT, AS
20 DESCRIBED IN SUBDIVISION FOUR OF SECTION 27-1417 OF THIS TITLE AND UNDER
21 THE CONDITIONS DESCRIBED THEREIN, TO AN ELIGIBLE PARTY IN ACCORDANCE
22 WITH PROCEDURES ESTABLISHED UNDER SUCH PROGRAM, WITH THE COST OF SUCH A
23 GRANT INCURRED BY A VOLUNTEER SERVING AS AN OFFSET AGAINST SUCH STATE
24 COSTS. WHERE THE APPLICANT IS A PARTICIPANT, THE DEPARTMENT SHALL
25 INCLUDE PROVISIONS RELATING TO RECOVERY OF STATE COSTS INCURRED BEFORE
26 THE DATE OF SUCH NOTICE;
27 (C) DISPUTES ARISING FROM THE EVALUATION, ANALYSIS, AND OVERSIGHT OF
28 THE IMPLEMENTATION OF THE WORK PLAN SHALL BE RESOLVED IN ACCORDANCE WITH
29 REGULATIONS PROMULGATED BY THE DEPARTMENT;
30 (D) SECTION EIGHT OF THE COURT OF CLAIMS ACT OR ANY OTHER PROVISION OF
31 LAW TO THE CONTRARY NOTWITHSTANDING, THE STATE SHALL BE IMMUNE FROM
32 LIABILITY AND ACTION WITH RESPECT TO ANY ACT OR OMISSION DONE IN THE
33 DISCHARGE OF THE DEPARTMENT'S RESPONSIBILITIES UNDER THIS TITLE;
34 PROVIDED, HOWEVER, THAT THIS PARAGRAPH SHALL NOT LIMIT THE LIABILITY
35 WHICH MAY OTHERWISE EXIST FOR THE STATE'S GROSS NEGLIGENCE OR UNLAWFUL,
36 WILLFUL OR MALICIOUS ACTS OR OMISSIONS ON THE PART OF THE STATE, STATE
37 AGENCIES, OR THEIR OFFICERS, EMPLOYEES OR AGENTS;
38 (E) THE DEPARTMENT MAY TERMINATE AN APPLICANT'S PARTICIPATION IN THE
39 BROWNFIELD CLEANUP PROGRAM AT ANY TIME IF THE APPLICANT FAILS TO
40 SUBSTANTIALLY COMPLY WITH THE TERMS AND CONDITIONS OF THIS SECTION, ANY
41 DULY PROMULGATED REGULATIONS IMPLEMENTING THE BROWNFIELD CLEANUP
42 PROGRAM, ANY TERMS AND CONDITIONS SET FORTH IN THE DEPARTMENT'S NOTICE
43 PURSUANT TO SUBDIVISION SIX OF SECTION 27-1407 OF THIS TITLE, OR ANY
44 WORK PLAN APPROVED BY THE DEPARTMENT;
45 (F) THE DEPARTMENT SHALL NOT CONSIDER THE APPLICANT AN OPERATOR OF A
46 BROWNFIELD SITE BASED SOLELY UPON PARTICIPATION IN THE BROWNFIELD CLEAN-
47 UP PROGRAM FOR PURPOSES OF REMEDIATION LIABILITY;
48 (G) THE APPLICANT SHALL CONDUCT INVESTIGATION AND/OR REMEDIATION
49 ACTIVITIES PURSUANT TO WORK PLANS APPROVED BY THE DEPARTMENT AND SHALL
50 BEGIN SUCH INVESTIGATION AND/OR REMEDIATION ACTIVITIES WITHIN NINETY
51 DAYS OF APPROVAL OF THE WORK PLAN BY THE DEPARTMENT;
52 (H) THE APPLICANT SHALL PREPARE AND IMPLEMENT A CITIZEN PARTICIPATION
53 PLAN CONSISTENT WITH THE REQUIREMENTS OF THIS TITLE AS SOON AS POSSIBLE
54 FOLLOWING THE DEPARTMENT'S NOTICE PURSUANT TO SUBDIVISION SIX OF SECTION
55 27-1407 OF THIS TITLE BUT PRIOR TO THE PREPARATION OF A DRAFT REMEDIAL
56 INVESTIGATION PLAN BY THE APPLICANT WHICH SHALL INCLUDE A DESCRIPTION OF
S. 8071 5
1 CITIZEN PARTICIPATION ACTIVITIES ALREADY PERFORMED BY THE APPLICANT
2 AND/OR THE DEPARTMENT; AND
3 (I) EFFECTIVE UPON THE ACCEPTANCE INTO THE BROWNFIELD CLEANUP PROGRAM
4 PURSUANT TO SUBDIVISION ONE OF THIS SECTION, THE APPLICANT IS DEEMED TO
5 HAVE WAIVED ANY RIGHT SUCH APPLICANT HAS OR MAY HAVE TO MAKE A CLAIM
6 AGAINST THE STATE OF NEW YORK PURSUANT TO ARTICLE TWELVE OF THE NAVIGA-
7 TION LAW WITH RESPECT TO THE BROWNFIELD SITE, IS DEEMED TO HAVE RELEASED
8 THE NEW YORK ENVIRONMENTAL PROTECTION AND SPILL COMPENSATION FUND FROM
9 ANY AND ALL LEGAL OR EQUITABLE CLAIMS OR CAUSES OF ACTION THAT SUCH
10 APPLICANT MAY HAVE AS A RESULT OF PARTICIPATING IN THE BROWNFIELD CLEAN-
11 UP PROGRAM OR FULFILLING A BROWNFIELD SITE REMEDIAL PROGRAM AS SUCH
12 SITE.
13 S 7. Section 27-1411 of the environmental conservation law is amended
14 by adding two new subdivisions 6 and 7 to read as follows:
15 6. AN APPLICANT SHALL COMMENCE IMPLEMENTATION OF ANY WORK PLAN WITHIN
16 NINETY DAYS OF APPROVAL OF THE PLAN BY THE DEPARTMENT AND COMPLETE THE
17 ACTIVITIES PROVIDED FOR IN SUCH WORK PLAN IN ACCORDANCE WITH THE SCHED-
18 ULE SET FORTH THEREIN, OR AS OTHERWISE APPROVED BY THE DEPARTMENT IN
19 WRITING.
20 7. AN APPLICANT SHALL INCLUDE WITH EVERY REPORT SUBMITTED TO THE
21 DEPARTMENT A SCHEDULE FOR THE SUBMISSION OF ANY SUBSEQUENT WORK PLAN
22 REQUIRED TO MEET THE REQUIREMENTS OF THIS TITLE.
23 S 8. Subdivision 3 of section 27-1419 of the environmental conserva-
24 tion law, as amended by chapter 390 of the laws of 2008, is amended to
25 read as follows:
26 3. Upon receipt of the final engineering report, the department shall
27 review such report and the data submitted pursuant to the brownfield
28 site cleanup agreement as well as any other relevant information regard-
29 ing the brownfield site. Upon satisfaction of the commissioner that the
30 remediation requirements set forth in this title have been or will be
31 achieved in accordance with the timeframes, if any, established in the
32 remedial work plan, the commissioner shall issue a written certificate
33 of completion[, such]. SUCH certificate shall include such information
34 as determined by the department of taxation and finance, including but
35 not limited to the brownfield site boundaries included in the final
36 engineering report, the date of the brownfield site CLEANUP agreement
37 pursuant to section 27-1409 of this title, and the applicable percent-
38 ages available AS OF THE DATE OF THE CERTIFICATE OF COMPLETION for that
39 site for purposes of section twenty-one of the tax law[, with such]. FOR
40 THOSE SITES FOR WHICH THE DEPARTMENT HAS ISSUED A NOTICE TO THE TAXPAYER
41 AFTER JULY FIRST, TWO THOUSAND TEN THAT ITS REQUEST FOR PARTICIPATION
42 HAS BEEN ACCEPTED UNDER SUBDIVISION SIX OF SECTION 27-1407 OF THIS
43 TITLE, THE TANGIBLE PROPERTY COMPONENT OF THE BROWNFIELD REDEVELOPMENT
44 TAX CREDIT PURSUANT TO PARAGRAPH THREE OF SUBDIVISION (A) OF SECTION
45 TWENTY-ONE OF THE TAX LAW SHALL ONLY BE AVAILABLE TO THE TAXPAYER IF
46 SUCH NOTICE INCLUDES A DETERMINATION THAT THE CRITERIA FOR RECEIVING
47 SUCH TAX COMPONENT HAVE BEEN MET. APPLICABLE percentages [to] FOR
48 COMPUTING THE BROWNFIELD REDEVELOPMENT TAX CREDIT PURSUANT TO SECTION
49 TWENTY-ONE OF THE TAX LAW SHALL be determined as follows:
50 (A) with respect to such qualified site for which the department has
51 issued a notice to the taxpayer after June twenty-third, two thousand
52 eight that its request for participation has been accepted under subdi-
53 vision six of section 27-1407 of this title[: For the purposes of
54 calculating], THE APPLICABLE PERCENTAGE FOR the site preparation credit
55 component pursuant to paragraph two of subdivision (a) of section twen-
56 ty-one of the tax law, and the on-site groundwater remediation credit
S. 8071 6
1 component pursuant to paragraph four of subdivision (a) of section twen-
2 ty-one of the tax law[, the applicable percentage] shall be based on the
3 level of cleanup achieved pursuant to subdivision four of section
4 27-1415 of this title and the level of cleanup of soils to contaminant-
5 specific soil cleanup objectives promulgated pursuant to subdivision six
6 of section 27-1415 of this title, up to a maximum of fifty percent, as
7 follows:
8 [(a)] (I) soil cleanup for unrestricted use, the protection of ground-
9 water or the protection of ecological resources, the applicable percent-
10 age shall be fifty percent;
11 [(b)] (II) soil cleanup for residential use, the applicable percentage
12 shall be forty percent, except for Track 4 which shall be twenty-eight
13 percent;
14 [(c)] (III) soil cleanup for commercial use, the applicable percentage
15 shall be thirty-three percent, except for Track 4 which shall be twen-
16 ty-five percent;
17 [(d)] (IV) soil cleanup for industrial use, the applicable percentage
18 shall be twenty-seven percent, except for Track 4 which shall be twen-
19 ty-two percent.
20 (B) WITH RESPECT TO SUCH QUALIFIED SITE FOR WHICH THE DEPARTMENT HAS
21 ISSUED A NOTICE TO THE TAXPAYER AFTER JULY FIRST, TWO THOUSAND TEN THAT
22 ITS REQUEST FOR PARTICIPATION HAS BEEN ACCEPTED UNDER SUBDIVISION SIX OF
23 SECTION 27-1407 OF THIS TITLE, THE APPLICABLE PERCENTAGE FOR THE TANGI-
24 BLE PROPERTY CREDIT COMPONENT OF THE BROWNFIELD REDEVELOPMENT TAX PURSU-
25 ANT TO PARAGRAPH THREE OF SUBDIVISION (A) OF SECTION TWENTY-ONE OF THE
26 TAX LAW THE APPLICABLE PERCENTAGE SHALL BE THE SUM OF SIX PERCENT AND
27 THE FOLLOWING ADDITIONAL PERCENTAGES, PROVIDED THAT THE TOTAL PERCENTAGE
28 OF THE TANGIBLE PROPERTY CREDIT COMPONENT SHALL NOT EXCEED TWENTY-FOUR
29 PERCENT AND IS OTHERWISE SUBJECT TO THE LIMITATIONS SET FORTH IN PARA-
30 GRAPH THREE-A OF SUBDIVISION (A) OF SECTION TWENTY-ONE OF THE TAX LAW:
31 (I) TEN PERCENT FOR A SITE WITHIN AND IN CONFORMANCE WITH A BROWNFIELD
32 OPPORTUNITY AREA DESIGNATED AS SUCH BY THE SECRETARY OF STATE PURSUANT
33 TO SECTION NINE HUNDRED SEVENTY-R OF THE GENERAL MUNICIPAL LAW. FOR ANY
34 SITE WITHIN AN ENVIRONMENTAL ZONE AND WITHIN AND IN CONFORMANCE WITH A
35 BROWNFIELD OPPORTUNITY AREA, THE APPLICABLE PERCENTAGE UNDER THIS
36 SUBPARAGRAPH SHALL BE TWELVE PERCENT;
37 (II) FOUR PERCENT FOR SITES ON WHICH THE PRIMARY DEVELOPMENT IS A
38 BUILDING OR BUILDINGS CONSTRUCTED IN CONFORMANCE WITH GREEN BUILDING
39 REGULATIONS PROMULGATED PURSUANT TO SECTION NINETEEN OF THE TAX LAW OR
40 SECTION EIGHTEEN HUNDRED SEVENTY-TWO OF THE PUBLIC AUTHORITIES LAW; AND
41 (III) EIGHT PERCENT FOR SITES WITHIN AN ENVIRONMENTAL ZONE AS DEFINED
42 IN PARAGRAPH SIX OF SUBDIVISION (B) OF SECTION TWENTY-ONE OF THE TAX LAW
43 OR IN A CENSUS TRACT THAT IS IMMEDIATELY ADJACENT TO AN ENVIRONMENTAL
44 ZONE; OR THE SITE IS TO BE DEVELOPED AS AFFORDABLE HOUSING DEFINED AS
45 HAVING AT LEAST TWENTY PERCENT OF ITS RESIDENTIAL UNITS SUBJECT TO AN
46 AGREEMENT WITH A MUNICIPALITY, THE STATE, THE FEDERAL GOVERNMENT OR AN
47 INSTRUMENTALITY THEREOF, WHERE SUCH AGREEMENT RESTRICTS OCCUPANCY OF
48 THOSE UNITS TO RESIDENTS WHO QUALIFY IN ACCORDANCE WITH AN INCOME TEST
49 AND ARE LOCATED WITHIN A QUALIFIED COMMUNITY DEVELOPMENT BLOCK GRANT
50 (CDBG) ELIGIBLE CENSUS TRACT AS DEFINED BY THE FEDERAL GOVERNMENT OR THE
51 SITE IS TO BE DEVELOPED FOR AFFORDABLE HOUSING WITH AT LEAST FIFTY
52 PERCENT OF ITS RESIDENTIAL UNITS AT OR BELOW EIGHTY PERCENT OF AREA
53 MEDIAN INCOME AS DEFINED BY THE UNITED STATES DEPARTMENT OF HOUSING AND
54 URBAN DEVELOPMENT FOR THE METROPOLITAN STATISTICAL AREA OR COUNTY IN
55 WHICH THE SITE IS LOCATED AND SUBJECT TO AN AGREEMENT WITH A MUNICI-
56 PALITY, THE STATE, THE FEDERAL GOVERNMENT, OR AN INSTRUMENTALITY THERE-
S. 8071 7
1 OF, WHERE SUCH AGREEMENT RESTRICTS OCCUPANCY OF THOSE UNITS TO RESIDENTS
2 WHO QUALIFY IN ACCORDANCE WITH AN INCOME TEST.
3 (C) ALL OTHER APPLICABLE PERCENTAGES ARE SET FORTH IN PARAGRAPH FIVE
4 OF SUBDIVISION (A) OF SECTION TWENTY-ONE OF THE TAX LAW.
5 S 9. Subdivision 5 of section 27-1419 of the environmental conserva-
6 tion law, as amended by section 9 of part A of chapter 577 of the laws
7 of 2004, is amended to read as follows:
8 5. A certificate of completion issued pursuant to this section may be
9 transferred to the applicant's successors or assigns upon transfer or
10 sale of the brownfield site. Further, a certificate of completion may be
11 modified or revoked by the commissioner upon a finding that:
12 (a) Either the applicant, or the applicant's successors or assigns,
13 has failed to comply with the terms and conditions of the brownfield
14 site cleanup agreement;
15 (b) The applicant made a misrepresentation of a material fact tending
16 to demonstrate that it (I) was qualified as a volunteer OR (II) MET THE
17 CRITERIA SET FORTH IN SUBDIVISION ONE OF SECTION 27-1407 OF THIS TITLE
18 FOR THE PURPOSE OF RECEIVING THE TANGIBLE PROPERTY COMPONENT OF THE
19 BROWNFIELD REDEVELOPMENT TAX CREDIT PURSUANT TO PARAGRAPH THREE OF
20 SUBDIVISION (A) OF SECTION TWENTY-ONE OF THE TAX LAW;
21 (c) Either the applicant, or the applicant's successors or assigns,
22 made a misrepresentation of a material fact tending to demonstrate that
23 the cleanup levels identified in the brownfield site cleanup agreement
24 were reached; [or]
25 (d) THE ENVIRONMENTAL EASEMENT GRANTED TO THE DEPARTMENT PURSUANT TO
26 TITLE THIRTY-SIX OF ARTICLE SEVENTY-ONE OF THIS CHAPTER DOES NOT PROVIDE
27 AN EFFECTIVE OR ENFORCEABLE MEANS OF ENSURING THE PERFORMANCE OF MAINTE-
28 NANCE, MONITORING OR OPERATING REQUIREMENTS, OR THE RESTRICTIONS ON
29 FUTURE LAND USES, INCLUDING RESTRICTIONS ON DRILLING FOR OR WITHDRAWING
30 GROUNDWATER; OR
31 (E) There is good cause for such modification or revocation.
32 S 10. Subdivision 1 of section 27-1423 of the environmental conserva-
33 tion law, as amended by section 11 of part A of chapter 577 of the laws
34 of 2004, is amended to read as follows:
35 1. Pursuant to timetables contained in the brownfield site cleanup
36 agreement, the [volunteer] APPLICANT shall pay all state costs incurred
37 in negotiating and overseeing implementation of such agreement,
38 provided, however, as set forth in a brownfield site cleanup agreement
39 pursuant to this title, that such costs may be based upon a reasonable
40 flat-fee for oversight, which shall reflect the projected future state
41 costs to be incurred in negotiating and overseeing implementation of
42 such agreement. In addition, a participant shall pay all costs incurred
43 by the state up to the effective date of such agreement.
44 S 11. Section 27-1429 of the environmental conservation law, as
45 amended by section 13 of part A of chapter 577 of the laws of 2004, is
46 amended to read as follows:
47 S 27-1429. Permit waivers.
48 The department[, by and through the commissioner,] shall be EXEMPT,
49 AND SHALL BE authorized to exempt a person from the requirement to
50 obtain any state or local permit or other authorization for any activity
51 needed to implement a program for the investigation and/or remediation
52 of contamination AT OR EMANATING FROM A BROWNFIELD SITE; provided that
53 the activity is conducted in a manner which satisfies all substantive
54 technical requirements applicable to like activity conducted pursuant to
55 a permit.
S. 8071 8
1 S 12. Subdivision 1 of section 27-1431 of the environmental conserva-
2 tion law is amended by adding a new paragraph c to read as follows:
3 C. TO INSPECT FOR COMPLIANCE WITH THE SITE MANAGEMENT PLAN APPROVED BY
4 THE DEPARTMENT, INCLUDING (I) INSPECTION OF THE PERFORMANCE OF MAINTE-
5 NANCE, MONITORING AND OPERATIONAL ACTIVITIES REQUIRED AS PART OF THE
6 REMEDIAL PROGRAM FOR THE SITE, (II) INSPECTION FOR THE PURPOSE OF ASCER-
7 TAINING CURRENT USES OF THE SITE, AND (III) TAKING SAMPLES IN ACCORDANCE
8 WITH PARAGRAPH (A) OF THIS SUBDIVISION.
9 S 13. Chapter 174 of the laws of 1968 constituting the New York state
10 urban development corporation act, is amended by adding a new section
11 16-t to read as follows:
12 S 16-T. BROWNFIELDS SHOVEL-READY PROGRAM. 1. NOTWITHSTANDING ANY OTHER
13 PROVISION OF THIS ACT OR ANY OTHER LAW TO THE CONTRARY, THE PROVISIONS
14 OF THIS SECTION SHALL GOVERN ANY PROJECT UNDER THE AUSPICES OF THE
15 CORPORATION FOR URBAN DEVELOPMENT AND RESEARCH OF NEW YORK OR ITS
16 SUCCESSOR IN INTEREST. IT IS THE INTENT OF THE LEGISLATURE AND THE
17 PURPOSE OF THIS LEGISLATION TO STIMULATE ECONOMIC DEVELOPMENT, AFFORDA-
18 BLE HOUSING, COMMUNITY REVITALIZATION, AND THE SITING OF PUBLIC AMEN-
19 ITIES ON BROWNFIELD SITES IN DISTRESSED URBAN AREAS.
20 2. THE CHAIRMAN, IN COOPERATION WITH THE COMMISSIONER OF ENVIRONMENTAL
21 CONSERVATION, AND THE SECRETARY OF STATE, SHALL DEVELOP A PROGRAM TO
22 PRODUCE NEW JOBS, AFFORDABLE HOUSING AND PUBLIC AMENITIES ON BROWNFIELD
23 SITES IN DISTRESSED URBAN AREAS, THE "BROWNFIELDS SHOVEL-READY PROGRAM".
24 THE CHAIRMAN IS AUTHORIZED TO CARRY OUT A PROGRAM WHICH WILL INCLUDE THE
25 ACQUISITION ASSESSMENT, DEMOLITION, CLEANUP, AND OTHER SITE PREPARATION
26 COSTS NECESSARY TO ACHIEVE THE REUSE FOR THESES PURPOSES BY THE URBAN
27 DEVELOPMENT CORPORATION.
28 3. ELIGIBLE SITES ARE LIMITED TO BROWNFIELD SITES, AS SUCH TERM IS
29 DEFINED IN SECTION 27-1405 OF THE ENVIRONMENTAL CONSERVATION LAW; AND
30 A. SITES THAT ARE PART OF A BROWNFIELD OPPORTUNITY AREA OR BROWNFIELD
31 OPPORTUNITY STUDY AREA PURSUANT TO SECTION 970-R OF THE GENERAL MUNICI-
32 PAL LAW. THE DEVELOPMENT AND FUTURE USE OF SUCH SITE SHALL BE LIMITED TO
33 USES CONSISTENT WITH AN ADOPTED BROWNFIELD OPPORTUNITY AREA PLAN; OR
34 B. SITES IDENTIFIED BY THE CHAIRMAN WHICH HAVE NOT ATTRACTED PRIVATE
35 REDEVELOPMENT INTEREST DUE TO THE DEGREE OF CONTAMINATION AND COST OF
36 CORRECTION, PROVIDED THAT SUCH ACQUISITION AND REDEVELOPMENT IS CONSIST-
37 ENT WITH USES ESTABLISHED, THROUGH A LOCAL PROCESS AND ANY RESTRICTIONS
38 OR LIMITATIONS REGARDING SUCH USES.
39 4. THE CHAIRMAN SHALL GIVE PRIORITY TO:
40 A. SITES LOCATED WITHIN A BROWNFIELD OPPORTUNITY AREA, PURSUANT TO
41 SECTION 970-R OF THE GENERAL MUNICIPAL LAW. SPECIFICALLY, THE CHAIRMAN
42 WILL GIVE PRIORITY TO THE CONSIDERATION OF SITES REFERRED PURSUANT TO
43 SECTION 970-R OF THE GENERAL MUNICIPAL LAW; AND
44 B. PROJECTS IN WHICH THE END USE WILL BE LOW- AND MODERATE-INCOME
45 RESIDENTIAL PROPERTY.
46 5. EMINENT DOMAIN RESTRICTIONS. A. FOR SITES LOCATED WITHIN A BROWN-
47 FIELD OPPORTUNITY AREA, PURSUANT TO SECTION 970-R OF THE GENERAL MUNICI-
48 PAL LAW, THE CHAIRMAN SHALL ONLY USE EMINENT DOMAIN POWERS IF THE USE OF
49 SUCH POWER HAS BEEN SPECIFICALLY DISCUSSED AND SUPPORTED BY THE LOCAL
50 COMMUNITY THROUGH THE COMPREHENSIVE BROWNFIELD OPPORTUNITY AREA PLANNING
51 PROCESS, AND IDENTIFIED IN A DESIGNATED BROWNFIELD OPPORTUNITY AREA.
52 B. FOR ALL OTHER PROJECTS THE CHAIRMAN SHALL NOT EXERCISE ANY EMINENT
53 DOMAIN POWERS PROVIDED FOR IN THIS ACT.
54 6. THE CHAIRMAN IS AUTHORIZED TO ENTER INTO CONTRACTS TO PREPARE THE
55 SITE; INCLUDING THE SITE ASSESSMENT, DEMOLITION, CLEANUP AND OTHER SITE
S. 8071 9
1 PREPARATION NECESSARY TO ACHIEVE THE SATISFACTION OF THE COMMISSIONER OF
2 ENVIRONMENTAL CONSERVATION.
3 7. BY DECEMBER 31, 2010 THE CHAIRMAN SHALL DEVELOP REGULATIONS FOR THE
4 IMPLEMENTATION OF THIS PROGRAM. AT A MINIMUM, SUCH REGULATIONS SHALL
5 INCLUDE PROVISIONS STIPULATING:
6 A. THAT TO ACHIEVE THE PREPARATION AND REMEDIATION OF BROWNFIELD SITES
7 TO BE OFFERED TO DEVELOPERS OR MANUFACTURERS FOR ONE DOLLAR AND OTHER
8 GOOD AND VALUABLE CONSIDERATION. SUCH SITES MAY BE SUBDIVIDED PRIOR TO
9 BEING OFFERED.
10 B. IN RETURN FOR A REMEDIATED SITE SOLD FOR ONE DOLLAR, DEVELOPERS
11 WOULD AGREE TO:
12 I. BUILD QUALITY BUILDINGS AT A MINIMUM COST OF THIRTY-EIGHT DOLLARS
13 PER SQUARE FOOT;
14 II. MEET THE LEADERSHIP IN ENERGY AND ENVIRONMENTAL DESIGN (LEED)
15 GREEN BUILDING RATING SYSTEM IN THE BUILDING CONSTRUCTION;
16 III. PROVIDE A MINIMUM OF ONE NEW JOB PER ONE THOUSAND SQUARE FEET OF
17 BUILDING SPACE;
18 IV. PAY A MINIMUM OF TEN DOLLARS AND FIFTY CENTS PER HOUR PLUS BENE-
19 FITS;
20 V. HIRE AT LEAST SEVENTY PERCENT OF ITS WORKFORCE FROM THE LOCAL
21 COMMUNITY; AND
22 VI. ALL REASONABLE RESTRICTIONS AND LIMITATIONS ESTABLISHED BY THE
23 CORPORATION FOR THE BROWNFIELD SITE IDENTIFIED IN THE CITIZEN PARTIC-
24 IPATION ACTIVITIES.
25 C. IN THE CASE THAT A REMEDIATED SITE IS SOLD TO AN AFFORDABLE HOUSING
26 DEVELOPER, THE DEVELOPER SHALL BUILD HOUSING UNITS IN ACCORDANCE WITH
27 THE STATE'S AFFORDABILITY GUIDELINES.
28 D. THE CORPORATION'S CITIZEN PARTICIPATION PLAN. THE CITIZEN PARTIC-
29 IPATION PLAN SHALL CONSIDER THE LEVEL OF CITIZEN INVOLVEMENT; LOCAL
30 INTEREST AND HISTORY, AND OTHER RELEVANT FACTORS. WHILE RETAINING FLEXI-
31 BILITY, CITIZEN PARTICIPATION PLANS SHALL EMBODY THE FOLLOWING PRINCI-
32 PLES OF MEANINGFUL CITIZEN PARTICIPATION, AND AT A MINIMUM SHALL
33 INCLUDE:
34 I. AN IDENTIFICATION OF THE INTERESTED PUBLIC AND PREPARATION OF A
35 BROWNFIELD SITE CONTACT LIST;
36 II. IDENTIFICATION OF MAJOR ISSUES OF PUBLIC CONCERN RELATED TO THE
37 BROWNFIELD SITE;
38 III. A DESCRIPTION AND SCHEDULE OF ANY ADDITIONAL PUBLIC PARTICIPATION
39 ACTIVITIES NEEDED TO ADDRESS PUBLIC CONCERNS;
40 IV. PROVISIONS FOR NOTICE WITH RESPECT TO THE ACQUISITION, ASSESSMENT,
41 DEMOLITION, CLEANUP, AND OTHER SITE PREPARATION COSTS AND INTENDED REUSE
42 OF A SITE;
43 V. SPECIFIC CONSULTATION REGARDING SUPPORT FOR THE CORPORATION'S
44 ACQUIRING THE BROWNFIELD SITE, INTENDED REUSE AND ANY REASONABLE LIMITA-
45 TIONS OR CONDITIONS ON THE REDEVELOPMENT OF THE BROWNFIELD SITE; AND
46 VI. PROVISIONS TO PROVIDE SEPARATE NOTICE OF ALL REASONABLE LIMITA-
47 TIONS OR CONDITIONS IDENTIFIED IN THE PUBLIC PARTICIPATION THAT THE
48 CORPORATION HAS, WILL BE REQUIRED FOR THE DEVELOPMENT OF THE BROWNFIELD
49 SITE.
50 S 14. Paragraph 3 of subdivision (a) of section 21 of the tax law, as
51 amended by chapter 390 of the laws of 2008, is amended to read as
52 follows:
53 (3) Tangible property credit component. The tangible property credit
54 component shall be equal to the applicable percentage of the cost or
55 other basis for federal income tax purposes of tangible personal proper-
56 ty and other tangible property, including buildings and structural
S. 8071 10
1 components of buildings, which constitute qualified tangible property;
2 provided[, however,] that in determining the cost or other basis of such
3 property[,] the taxpayer MAY INCLUDE THE COSTS INCURRED IN CONNECTION
4 WITH PREPARING A SITE FOR THE ERECTION OF A BUILDING OR A COMPONENT OF A
5 BUILDING, SUCH AS THE COST OF EXCAVATION, TEMPORARY ELECTRIC WIRING,
6 SCAFFOLDING, FENCING AND SECURITY FACILITIES, TO THE EXTENT THAT SUCH
7 COSTS ARE NOT USED AS A BASIS FOR COMPUTING THE SITE PREPARATION COMPO-
8 NENT OF THE BROWNFIELD REDEVELOPMENT TAX CREDIT PURSUANT TO PARAGRAPH
9 TWO OF THIS SUBDIVISION; AND PROVIDED FURTHER THAT THE TAXPAYER shall
10 exclude the acquisition cost of any item of property with respect to
11 which a credit under this section was allowable to another taxpayer. The
12 credit component amount so determined shall be allowed for the taxable
13 year in which such qualified tangible property is placed in service on a
14 qualified site with respect to which a certificate of completion has
15 been issued to the taxpayer, OR FOR THE TAXABLE YEAR IN WHICH THE
16 CERTIFICATE OF COMPLETION IS ISSUED IF THE QUALIFIED TANGIBLE PROPERTY
17 IS PLACED IN SERVICE PRIOR TO THE ISSUANCE OF THE CERTIFICATE OF
18 COMPLETION, for up to ten taxable years after the date of the issuance
19 of such certificate of completion. The tangible property credit compo-
20 nent shall be allowed with respect to property leased to a second party
21 only if such second party is either (i) not a party responsible for the
22 disposal of hazardous waste or the discharge of petroleum at the site
23 according to applicable principles of statutory or common law liability,
24 or (ii) a party responsible according to applicable principles of statu-
25 tory or common law liability if such party's liability arises solely
26 from operation of the site subsequent to the disposal of hazardous waste
27 or the discharge of petroleum, and is so certified by the commissioner
28 of environmental conservation at the request of the taxpayer, pursuant
29 to section 27-1419 of the environmental conservation law. Notwithstand-
30 ing any other provision of law to the contrary, in the case of allowance
31 of credit under this section to such a lessor, the commissioner shall
32 have the authority to reveal to such lessor any information, with
33 respect to the issue of qualified use of property by the lessee, which
34 is the basis for the denial in whole or in part, or for the recapture,
35 of the credit claimed by such lessor. For purposes of the tangible prop-
36 erty credit component allowed under this section the taxpayer to whom
37 the certificate of completion is issued, as provided for under subdivi-
38 sion five of section 27-1419 of the environmental conservation law, may
39 transfer the benefits and burdens of the certificate of completion,
40 which run with the land and to the applicant's successors or assigns
41 upon transfer or sale of all or any portion of an interest or estate in
42 the qualified site. However, the taxpayer to whom certificate's benefits
43 and burdens are transferred shall not include the cost of acquiring all
44 or any portion of an interest or estate in the site and the amounts
45 included in the cost or other basis for federal income tax purposes of
46 qualified tangible property already claimed by the previous taxpayer
47 pursuant to this section.
48 S 15. Subparagraph (D) of paragraph 3-a of subdivision (a) of section
49 21 of the tax law is REPEALED.
50 S 16. Paragraphs 5 and 6 of subdivision (a) of section 21 of the tax
51 law, as amended by section 1 of part H of chapter 577 of the laws of
52 2004, are amended to read as follows:
53 (5) Applicable percentage. For purposes of COMPUTING THE SITE PREPARA-
54 TION AND ON-SITE GROUNDWATER REMEDIATION COMPONENTS PURSUANT TO para-
55 graphs two[, three] and four of this subdivision, WITH RESPECT TO SUCH
56 QUALIFIED SITES FOR WHICH THE DEPARTMENT HAS ISSUED A NOTICE TO THE
S. 8071 11
1 TAXPAYER BEFORE JUNE TWENTY-THIRD, TWO THOUSAND NINE THAT ITS REQUEST
2 FOR PARTICIPATION HAS BEEN ACCEPTED UNDER SUBDIVISION SIX OF SECTION
3 27-1407 OF THE ENVIRONMENTAL CONSERVATION LAW, OR WHERE THE TAXPAYER HAS
4 EITHER BEEN ISSUED OR RECEIVED A CERTIFICATE OF COMPLETION FROM ANOTHER
5 TAXPAYER UNDER SECTION 27-1419 OF THE ENVIRONMENTAL CONSERVATION LAW
6 BEFORE JUNE TWENTY-THIRD, TWO THOUSAND EIGHT, AND, FOR PURPOSES OF
7 COMPUTING THE TANGIBLE PROPERTY COMPONENT PURSUANT TO PARAGRAPH THREE OF
8 THIS SUBDIVISION WITH RESPECT TO SUCH QUALIFIED SITES FOR WHICH THE
9 DEPARTMENT HAS ISSUED A NOTICE TO THE TAXPAYER BEFORE JULY FIRST, TWO
10 THOUSAND TEN THAT ITS REQUEST FOR PARTICIPATION HAS BEEN ACCEPTED UNDER
11 SUBDIVISION SIX OF SECTION 27-1407 OF THE ENVIRONMENTAL CONSERVATION
12 LAW, OR WHERE THE TAXPAYER HAS EITHER BEEN ISSUED OR RECEIVED A CERTIF-
13 ICATE OF COMPLETION FROM ANOTHER TAXPAYER UNDER SECTION 27-1419 OF THE
14 ENVIRONMENTAL CONSERVATION LAW BEFORE JULY FIRST, TWO THOUSAND TEN, the
15 applicable percentage shall be twelve percent in the case of credits
16 claimed under article nine, nine-A, thirty-two or thirty-three of this
17 chapter, and ten percent in the case of credits claimed under article
18 twenty-two of this chapter, except that where at least fifty percent of
19 the area of the qualified site relating to the credit provided for in
20 this section is located in an environmental zone as defined in paragraph
21 six of subdivision (b) of this section, the applicable percentage shall
22 be increased by an additional eight percent. Provided, however, as
23 afforded in section 27-1419 of the environmental conservation law, if
24 the certificate of completion indicates that the qualified site has been
25 remediated to Track 1 as that term is described in subdivision four of
26 section 27-1415 of the environmental conservation law, the applicable
27 percentage set forth in the first sentence of this paragraph shall be
28 increased by an additional two percent. ALL OTHER APPLICABLE PERCENT-
29 AGES ARE SET FORTH IN SECTION 27-1419 OF THE ENVIRONMENTAL CONSERVATION
30 LAW.
31 (6) Site preparation costs and on-site groundwater remediation costs
32 paid or incurred by the taxpayer with respect to a qualified site and
33 the cost or other basis for federal income tax purposes of tangible
34 personal property and other tangible property, including buildings and
35 structural components of buildings, which constitute qualified tangible
36 property shall only include costs [paid or] incurred by the taxpayer on
37 or after the date of the brownfield site cleanup agreement executed by
38 the taxpayer and the department of environmental conservation pursuant
39 to section 27-1409 of the environmental conservation law.
40 S 17. Paragraphs 2 and 6 of subdivision (b) of section 21 of the tax
41 law, as amended by section 1 of part H of chapter 577 of the laws of
42 2004, subparagraph (B) and the closing paragraph of paragraph 6 as
43 amended by section 1 of part G of chapter 62 of the laws of 2006, are
44 amended to read as follows:
45 (2) Site preparation costs. The term "site preparation costs" shall
46 mean all amounts properly chargeable to a capital account, (i) which are
47 [paid or] incurred in connection with a site's qualification for a
48 certificate of completion AND ATTRIBUTABLE TO ACTIVITIES SPECIFIED IN A
49 REMEDIAL WORK PLAN APPROVED BY THE COMMISSIONER OF ENVIRONMENTAL CONSER-
50 VATION UNDER SECTION 27-1411 OF THE ENVIRONMENTAL CONSERVATION LAW, and
51 (ii) WITH RESPECT TO ANY QUALIFIED SITE FOR WHICH THE DEPARTMENT HAS
52 ISSUED A NOTICE TO THE TAXPAYER BEFORE JULY FIRST, TWO THOUSAND TEN THAT
53 ITS REQUEST FOR PARTICIPATION HAS BEEN ACCEPTED UNDER SUBDIVISION SIX OF
54 SECTION 27-1407 OF THE ENVIRONMENTAL CONSERVATION LAW, OR WHERE THE
55 TAXPAYER RECEIVED A CERTIFICATE OF COMPLETION FROM ANOTHER TAXPAYER
56 UNDER SECTION 27-1419 OF THE ENVIRONMENTAL CONSERVATION LAW BEFORE JULY
S. 8071 12
1 FIRST, TWO THOUSAND TEN, all other site preparation costs paid or
2 incurred in connection with preparing a site for the erection of a
3 building or a component of a building, or otherwise to establish a site
4 as usable for its industrial, commercial (including the commercial
5 development of residential housing), recreational or conservation
6 purposes. [Site] FOR PURPOSES OF THIS PARAGRAPH, SITE preparation costs
7 shall include, but not be limited to, the costs of excavation, temporary
8 electric wiring, scaffolding, demolition costs, and the costs of fencing
9 and security facilities. Site preparation costs shall not include the
10 cost of acquiring the site and shall not include amounts included in the
11 cost or other basis for federal income tax purposes of qualified tangi-
12 ble property, as described in paragraph three of this subdivision.
13 (6) Environmental zones (EN-Zones). An "environmental zone" shall mean
14 an area designated as such by the commissioner of economic development.
15 Such areas so designated are areas which are census tracts and block
16 numbering areas which, as of the [two thousand] MOST RECENT census,
17 satisfy either of the following criteria:
18 (A) areas that have both:
19 (i) a poverty rate of at least twenty percent for the year to which
20 the data relate; and
21 (ii) an unemployment rate of at least one and one-quarter times the
22 statewide unemployment rate for the year to which the data relate, or;
23 (B) areas that have a poverty rate of at least two times the poverty
24 rate for the county in which the areas are located for the year to which
25 the data relate [provided, however, that a qualified site shall only be
26 deemed to be located in an environmental zone under this subparagraph
27 (B) if such site was the subject of a brownfield site cleanup agreement
28 pursuant to section 27-1409 of the environmental conservation law that
29 was entered into prior to September first, two thousand ten].
30 Such designation shall be made and a list of all such environmental
31 zones shall be established by the commissioner of economic development
32 no later than [December thirty-first, two thousand four provided, howev-
33 er, that a qualified site shall only be deemed to be located in an envi-
34 ronmental zone under subparagraph (B) of this paragraph if such site was
35 the subject of a brownfield site cleanup agreement pursuant to section
36 27-1409 of the environmental conservation law that was entered into
37 prior to September first, two thousand ten] NINETY DAYS FOLLOWING THE
38 OFFICIAL PUBLICATION OF THE MOST RECENT CENSUS.
39 S 18. Section 171-r of the tax law is amended by adding a new subdivi-
40 sion (e) to read as follows:
41 (E) THE COMMISSIONER IN CONSULTATION WITH THE COMMISSIONER OF ENVIRON-
42 MENTAL CONSERVATION, SHALL PUBLISH BY SEPTEMBER THIRTY-FIRST, TWO THOU-
43 SAND TEN A SUPPLEMENTAL BROWNFIELD CREDIT REPORT CONTAINING THE INFORMA-
44 TION REQUIRED BY THIS SECTION ABOUT THE CREDITS CLAIMED FOR THE YEARS
45 TWO THOUSAND FIVE, TWO THOUSAND SIX, AND TWO THOUSAND SEVEN.
46 S 19. Subdivision 1 of section 970-r of the general municipal law, as
47 amended by section 1 of part F of chapter 577 of the laws of 2004, para-
48 graph a as amended and paragraph h as added by chapter 386 of the laws
49 of 2007 and paragraph e as amended and paragraph i as added by chapter
50 390 of the laws of 2008, is amended to read as follows:
51 1. Definitions. a. "Applicant" shall mean the municipality, community
52 board and/or community based organization submitting an application in
53 the manner authorized by this section.
54 b. "BROWNFIELD OPPORTUNITY AREA" SHALL MEAN A STUDY AREA ACCEPTED BY
55 THE SECRETARY IN CONNECTION WITH A FUNDING AWARD MADE PURSUANT TO THIS
S. 8071 13
1 SECTION OR A BROWNFIELD OPPORTUNITY AREA DESIGNATED BY THE SECRETARY
2 PURSUANT TO THIS SECTION.
3 C. "Commissioner" shall mean the commissioner of the department of
4 environmental conservation.
5 [c.] D. "Community based organization" shall mean a not-for-profit
6 corporation exempt from taxation under section 501(c)(3) of the internal
7 revenue code whose stated mission is promoting reuse of brownfield sites
8 within a specified geographic area in which the community based organ-
9 ization is located; which has twenty-five percent or more of its board
10 of directors residing in the community in such area; and represents a
11 community with a demonstrated financial need. "Community based organiza-
12 tion" shall not include any not-for-profit corporation that has caused
13 or contributed to the release or threatened release of a contaminant
14 from or onto the brownfield site, or any not-for-profit corporation that
15 generated, transported, or disposed of, or that arranged for, or caused,
16 the generation, transportation, or disposal of contamination from or
17 onto the brownfield site. This definition shall not apply if more than
18 twenty-five percent of the members, officers or directors of the not-
19 for-profit corporation are or were employed or receiving compensation
20 from any person responsible for a site under title thirteen or title
21 fourteen of article twenty-seven of the environmental conservation law,
22 article twelve of the navigation law or under applicable principles of
23 statutory or common law liability.
24 [d.] E. "Brownfield site" shall have the same meaning as set forth in
25 section 27-1405 of the environmental conservation law.
26 [e.] F. "Department" shall mean the department of state.
27 [f.] G. "Contamination" or "contaminated" shall have the same meaning
28 as provided in section 27-1405 of the environmental conservation law.
29 [g.] H. "Municipality" shall have the same meaning as set forth in
30 subdivision fifteen of section 56-0101 of the environmental conservation
31 law.
32 [h.] I. "Community board" shall have the same meaning as set forth in
33 section twenty-eight hundred of the New York city charter.
34 [i.] J. "Secretary" shall mean the secretary of state.
35 S 20. Paragraph b of subdivision 2 of section 970-r of the general
36 municipal law, as added by section 1 of part F of chapter 1 of the laws
37 of 2003, is amended to read as follows:
38 b. Activities eligible to receive such assistance shall include, but
39 are not limited to, the assembly and development of basic information
40 about:
41 (1) the borders of the [proposed] brownfield opportunity area;
42 (2) the number and size of brownfield sites;
43 (3) current and anticipated uses of the properties in the [proposed]
44 BROWNFIELD OPPORTUNITY area;
45 (4) current and anticipated future conditions of groundwater in the
46 [proposed] BROWNFIELD OPPORTUNITY area;
47 (5) known data about the environmental conditions of the properties in
48 the [proposed] BROWNFIELD OPPORTUNITY area;
49 (6) ownership of the properties in the [proposed] BROWNFIELD OPPORTU-
50 NITY area; and
51 (7) preliminary descriptions of possible remediation strategies, reuse
52 opportunities, necessary infrastructure improvements and other public or
53 private measures needed to stimulate investment, promote revitalization,
54 and enhance community health and environmental conditions.
55 S 21. Subdivision 2 of section 970-r of the general municipal law is
56 amended by adding a new paragraph h to read as follows:
S. 8071 14
1 H. TO THE EXTENT THAT THERE ARE UNEXPENDED FUNDS APPROPRIATED TO THE
2 DEPARTMENT OF ENVIRONMENTAL CONSERVATION FOR FINANCIAL ASSISTANCE
3 AUTHORIZED IN THIS SUBDIVISION, THE COMMISSIONER SHALL ALLOCATE SUCH
4 FUNDS TO THE SECRETARY.
5 S 22. Paragraphs b and d of subdivision 3 of section 970-r of the
6 general municipal law, paragraph b as amended by chapter 390 of the laws
7 of 2008 and paragraph d as added by section 1 of part F of chapter 1 of
8 the laws of 2003, are amended and a new paragraph j is added to read as
9 follows:
10 b. An application for such financial assistance shall include an indi-
11 cation of support from owners of brownfield sites in the proposed brown-
12 field opportunity area. All residents and property owners in the
13 proposed brownfield opportunity area shall receive notice OF THE APPLI-
14 CATION in such form and manner as the secretary shall prescribe.
15 d. Activities eligible to receive such financial assistance shall
16 include the identification, preparation, creation, development and
17 assembly of information and elements to be included in a nomination for
18 designation of a brownfield opportunity area, including but not limited
19 to:
20 (1) A PLAN FOR THE REDEVELOPMENT AND REVITALIZATION OF THE BROWNFIELD
21 OPPORTUNITY AREA, THAT CONTAINS BUT IS NOT LIMITED TO:
22 (I) the borders of the proposed brownfield opportunity area;
23 [(2)] (II) the location of each known or suspected brownfield site in
24 the proposed brownfield opportunity area;
25 [(3)] (III) EXISTING DETAILED ASSESSMENTS OF INDIVIDUAL BROWNFIELD
26 SITES AND, WHERE THE CONSENT OF THE SITE OWNER HAS BEEN OBTAINED, THE
27 NEED FOR CONDUCTING ON-SITE ASSESSMENTS;
28 (IV) KNOWN DATA ABOUT THE ENVIRONMENTAL CONDITIONS OF PROPERTIES IN
29 THE BROWNFIELD OPPORTUNITY AREA;
30 (V) OWNERSHIP OF THE PROPERTIES IN THE BROWNFIELD OPPORTUNITY AREA;
31 (VI) THE GOALS AND OBJECTIVES, BOTH SHORT TERM AND LONG TERM, FOR THE
32 ECONOMIC REVITALIZATION OF THE BROWNFIELD OPPORTUNITY AREA;
33 (VII) IDENTIFICATION OF THE PUBLICLY CONTROLLED AND DEVELOPABLE LAND
34 AND BUILDINGS WITHIN THE BROWNFIELD OPPORTUNITY AREA WHICH ARE OR COULD
35 BE MADE AVAILABLE FOR DEVELOPMENT; AND
36 (VIII) the identification of strategic sites within the proposed
37 brownfield opportunity area AND THE DEVELOPMENT OF STRATEGIES FOR
38 IMPROVING THE LIKELIHOOD THAT SUCH STRATEGIC SITES ARE REUSED OR DEVEL-
39 OPED CONSISTENT WITH THE BROWNFIELD OPPORTUNITY AREA;
40 [(4)] (2) AND IMPLEMENTATION STRATEGY THAT INCLUDES BUT IS NOT LIMITED
41 TO:
42 (I) the type of potential developments anticipated for sites within
43 the proposed brownfield opportunity area proposed by either the current
44 or the prospective owners of such sites;
45 [(5)] (II) local legislative or regulatory action which may be
46 required to implement a plan for the redevelopment of the proposed
47 brownfield opportunity area;
48 [(6)] (III) priorities for public and private investment in infras-
49 tructure, open space, economic development, housing, or community facil-
50 ities in the proposed brownfield opportunity area, INCLUDING THOSE AREAS
51 THAT MAY BE ELIGIBLE FOR PRIORITY OR PREFERENCE IN ACCORDANCE WITH
52 SUBDIVISION FIVE OF THIS SECTION;
53 [(7)] (IV) mapping of current and anticipated uses of the properties
54 and groundwater in the proposed brownfield opportunity area;
S. 8071 15
1 [(8) existing detailed assessments of individual brownfield sites and,
2 where the consent of the site owner has been obtained, the need for
3 conducting on-site assessments;
4 (9) known data about the environmental conditions of properties in the
5 proposed brownfield opportunity area;
6 (10) ownership of the properties in the proposed brownfield opportu-
7 nity area;] AND
8 [(11)] (V) descriptions of possible remediation strategies, brownfield
9 redevelopment, necessary infrastructure improvements and other public or
10 private measures needed to stimulate investment, promote revitalization,
11 and enhance community health and environmental conditions[;
12 (12) the goals and objectives, both short term and long term, for the
13 economic revitalization of the proposed brownfield opportunity area; and
14 (13) the publicly controlled and other developable lands and buildings
15 within the proposed brownfield opportunity area which are or could be
16 made available for residential, industrial and commercial development].
17 J. TO THE EXTENT THAT THERE ARE UNEXPENDED FUNDS APPROPRIATED TO THE
18 DEPARTMENT OF ENVIRONMENTAL CONSERVATION FOR FINANCIAL ASSISTANCE
19 AUTHORIZED IN THIS SUBDIVISION, THE COMMISSIONER SHALL SUBALLOCATE SUCH
20 FUNDS TO THE SECRETARY.
21 S 23. Subdivision 4 of section 970-r of the general municipal law, as
22 amended by chapter 390 of the laws of 2008, is amended to read as
23 follows:
24 4. Designation of brownfield opportunity area. A. Upon completion of a
25 nomination for designation of a brownfield opportunity area, it shall be
26 forwarded by the applicant to the secretary, who shall determine whether
27 it is consistent with the provisions of this section. If the secretary
28 determines that the nomination is consistent with the provisions of this
29 section, the brownfield opportunity area shall be designated. If the
30 secretary determines that the nomination is not consistent with the
31 provisions of this section, the secretary shall make recommendations in
32 writing to the applicant of the manner and nature in which the nomi-
33 nation should be amended.
34 B. THE SECRETARY SHALL MAKE THE DETERMINATION REGARDING WHETHER A
35 QUALIFIED SITE SUBJECT TO A BROWNFIELD SITE CLEANUP AGREEMENT PURSUANT
36 TO SECTION 27-1409 OF THE ENVIRONMENTAL CONSERVATION LAW IS CONSISTENT
37 WITH A DESIGNATED BROWNFIELD OPPORTUNITY AREA. THE SECRETARY SHALL
38 PROMULGATE REGULATIONS TO ESTABLISH THE PROCESS, CRITERIA AND TIMING IT
39 SHALL APPLY IN MAKING DETERMINATIONS WHETHER A QUALIFIED SITE IS
40 CONSISTENT WITH A DESIGNATED BROWNFIELD OPPORTUNITY AREA.
41 S 24. Subdivision 5 of section 970-r of the general municipal law, as
42 added by section 1 of part F of chapter 1 of the laws of 2003, is
43 amended to read as follows:
44 5. Priority and preference. The designation of a brownfield opportu-
45 nity area pursuant to this section is intended to serve as a planning
46 tool. It alone shall not impose any new obligations on any property or
47 property owner.
48 A. UPON THE AWARD OF FINANCIAL ASSISTANCE PURSUANT TO THIS SECTION,
49 THE SECRETARY SHALL NOTIFY THE DIVISION OF HOUSING AND COMMUNITY
50 RENEWAL, THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, THE DEPARTMENT OF
51 TRANSPORTATION, THE DEPARTMENT OF PARKS, RECREATION AND HISTORIC PRESER-
52 VATION, AND THE EMPIRE STATE DEVELOPMENT CORPORATION OF SUCH ASSISTANCE,
53 AND INCLUDE IN SUCH NOTIFICATION A DESCRIPTION OF THE BROWNFIELD OPPOR-
54 TUNITY AREA STUDY AREA AND A REQUEST FOR RELEVANT INFORMATION CONCERN-
55 ING, WITHOUT LIMITATION, LAND USES, CAPITAL PROJECTS AND PLANS RELATING
56 TO PROPERTIES OR THE COMMUNITY WITHIN SUCH BROWNFIELD OPPORTUNITY AREA
S. 8071 16
1 STUDY AREA, EXISTING PLANS AND PLANNING DOCUMENTS, DEMOGRAPHICS, AND
2 LOCATION, MAPS AND DESCRIPTION OF EXISTING AND PROPOSED PUBLIC FACILI-
3 TIES AND INFRASTRUCTURE.
4 B. UPON THE AWARD OF FINANCIAL ASSISTANCE PURSUANT TO THIS SECTION,
5 THE SECRETARY SHALL NOTIFY RELEVANT FEDERAL AND LOCAL AGENCIES OF SUCH
6 ASSISTANCE, AND INCLUDE IN SUCH NOTIFICATION A DESCRIPTION OF THE BROWN-
7 FIELD OPPORTUNITY AREA STUDY AREA AND A REQUEST FOR RELEVANT INFORMATION
8 CONCERNING, WITHOUT LIMITATION, LAND USES, CAPITAL PROJECTS AND PLANS
9 RELATING TO PROPERTIES OR THE COMMUNITY WITHIN SUCH BROWNFIELD OPPORTU-
10 NITY AREA, EXISTING PLANS AND PLANNING DOCUMENTS, DEMOGRAPHICS, AND
11 LOCATION, MAPS AND DESCRIPTION OF EXISTING AND PROPOSED PUBLIC FACILI-
12 TIES AND INFRASTRUCTURE.
13 C. WITHIN SIX MONTHS OF AN AWARD OF FINANCIAL ASSISTANCE PURSUANT TO
14 THIS SECTION, THE SECRETARY SHALL SEEK COOPERATION FROM RELEVANT FEDER-
15 AL, STATE AND LOCAL AGENCIES IN THE GATHERING OF INFORMATION ABOUT
16 RESOURCES AND/OR PROGRAMS THAT MAY BE RELEVANT TO THE BROWNFIELD OPPOR-
17 TUNITY AREA STUDY AREA.
18 D. To the extent authorized by law, projects in brownfield opportunity
19 areas designated pursuant to this section shall receive a priority and
20 preference when considered for financial assistance pursuant to articles
21 fifty-four and fifty-six of the environmental conservation law.
22 E. To the extent authorized by law, projects in brownfield opportunity
23 areas designated pursuant to this section may receive a priority and
24 preference when considered for financial AND OTHER assistance pursuant
25 to any other state, federal or local law.
26 F. THE SECRETARY SHALL TAKE SUCH MEASURES AS MAY BE NECESSARY TO
27 DETERMINE THE AVAILABILITY OF SUCH FINANCIAL AND OTHER ASSISTANCE AND TO
28 SEEK COOPERATION WITH OTHER STATE, FEDERAL AND LOCAL OFFICIALS IN
29 PROVIDING A PRIORITY AND PREFERENCE TO APPLICANTS PURSUANT TO THIS
30 SUBDIVISION.
31 G. THE SECRETARY SHALL, IN CONSULTATION WITH OTHER STATE AGENCIES,
32 ISSUE A BROWNFIELD OPPORTUNITY AREA PREFERENCE AND PRIORITY REPORT WITH-
33 IN ONE YEAR OF THE EFFECTIVE DATE OF THIS PARAGRAPH AND EACH SUBSEQUENT
34 YEAR THEREAFTER, IDENTIFYING FUNDING PROGRAMS AND RESOURCES RELEVANT TO
35 AND UTILIZED IN THE IMPLEMENTATION OF BROWNFIELD OPPORTUNITY AREAS.
36 STATE AGENCIES SHALL PROVIDE PREFERENCE AND PRIORITY FOR PROJECTS BUILT
37 CONSISTENT WITH A DESIGNATED BROWNFIELD OPPORTUNITY AREA IN FUNDING
38 PROGRAMS IDENTIFIED IN THE REPORT, INCLUDING BUT NOT LIMITED TO, MODIFY-
39 ING PROGRAM ELIGIBILITY AND RANKING CRITERIA TO PROVIDE FOR PREFERENCE
40 AND PRIORITY FOR PROJECTS BUILT CONSISTENT WITH A DESIGNATED BROWNFIELD
41 OPPORTUNITY AREA.
42 H. FOR TEN YEARS FOLLOWING NOTIFICATION OF FINANCIAL ASSISTANCE, MUNI-
43 CIPALITIES, COMMUNITY BASED ORGANIZATIONS AND COMMUNITY BOARDS AWARDED
44 FINANCIAL ASSISTANCE PURSUANT TO THIS SECTION SHALL SUBMIT AN ANNUAL
45 REPORT TO THE SECRETARY PROJECTING THE FUNDING, AND ANY OTHER RESOURCES
46 NEEDED TO ADVANCE THE OBJECTIVES OF THEIR BROWNFIELD OPPORTUNITY AREA
47 PLANS.
48 S 25. Subdivision 6 of section 970-r of the general municipal law, as
49 added by section 1 of part F of chapter 1 of the laws of 2003, paragraph
50 a as amended by chapter 386 of the laws of 2007 and paragraph h as
51 amended by section 1 of part F of chapter 577 of the laws of 2004, is
52 amended to read as follows:
53 6. State assistance for [brownfield site assessments in] IMPLEMENTA-
54 TION STRATEGIES FOR brownfield opportunity areas. a. Within the limits
55 of appropriations therefor, the [commissioner, in consultation with the]
56 secretary [of state,] is authorized to provide, on a competitive basis,
S. 8071 17
1 financial assistance to municipalities, to community based organiza-
2 tions, to community boards, or to municipalities and community based
3 organizations acting in cooperation to conduct [brownfield site assess-
4 ments] IMPLEMENTATION STRATEGIES in a brownfield opportunity area
5 [designated pursuant to this section]. Such financial assistance shall
6 not exceed ninety percent of the costs of such brownfield [site assess-
7 ment] OPPORTUNITY AREA IMPLEMENTATION STRATEGIES.
8 b. [Brownfield sites eligible for such assistance must be owned by a
9 municipality, or volunteer as such term is defined in section 27-1405 of
10 the environmental conservation law.
11 c. Brownfield site assessment] IMPLEMENTATION STRATEGIES activities
12 eligible for funding include, but are not limited to[,]:
13 (I) testing of properties to determine the nature and extent of the
14 contamination (including soil and groundwater), environmental assess-
15 ments, IN CONFORMANCE WITH APPLICABLE REQUIREMENTS OF THE COMMISSIONER,
16 the development of a proposed remediation strategy to address any iden-
17 tified contamination, IN CONFORMANCE WITH APPLICABLE REQUIREMENTS OF THE
18 COMMISSIONER, and any other activities deemed appropriate by the
19 [commissioner in consultation with the] secretary [of state]. [Any envi-
20 ronmental assessment shall be subject to the review and approval of such
21 commissioner] BROWNFIELD SITES ELIGIBLE FOR SUCH ASSISTANCE MUST BE
22 OWNED BY A MUNICIPALITY OR VOLUNTEER AS SUCH TERM IS DEFINED IN SECTION
23 27-1405 OF THE ENVIRONMENTAL CONSERVATION LAW;
24 (II) ACTIONS TO EFFECTUATE LOCAL LAND USE CHANGES, INCLUDING ZONING
25 AND NECESSARY LOCAL LAW AMENDMENTS IDENTIFIED IN THE BROWNFIELD OPPORTU-
26 NITY AREA;
27 (III) ESTABLISHING DESIGN STANDARDS AND DESIGN GUIDELINES, INCLUDING
28 REQUIREMENTS FOR ENERGY EFFICIENCY, GREEN INFRASTRUCTURE AND WATER
29 RE-USE AND OTHER SUSTAINABILITY AND GREEN DESIGN ELEMENTS;
30 (IV) THE CARRYING OUT OF ACTIVITIES TO MARKET STRATEGIC SITES IN A
31 BROWNFIELD OPPORTUNITY AREA AND OTHER ACTIVITIES TO ATTRACT DEVELOPER
32 INTEREST; AND
33 (V) CARRYING OUT OF OTHER PRE-DEVELOPMENT ACTIVITIES TO ADVANCE THE
34 BROWNFIELD OPPORTUNITY AREA.
35 [d.] C. Applications for such assistance shall be submitted to the
36 [commissioner] SECRETARY in a format, and containing such information,
37 as prescribed by the [commissioner in consultation with the] secretary
38 [of state].
39 [e.] D. Funding preferences shall be given to applications for such
40 assistance that relate to areas having one or more of the following
41 characteristics:
42 (1) areas for which the application is a partnered application by a
43 municipality and a community based organization;
44 (2) areas with concentrations of brownfield sites;
45 (3) areas for which the application demonstrates support from a muni-
46 cipality and a community based organization;
47 (4) areas showing indicators of economic distress including low resi-
48 dent incomes, high unemployment, high commercial vacancy rates,
49 depressed property values; and
50 (5) areas with brownfield sites presenting strategic opportunities to
51 stimulate economic development, community revitalization or the siting
52 of public amenities.
53 [f.] E. The [commissioner] SECRETARY, upon the receipt of an applica-
54 tion for such assistance from a community based organization not in
55 cooperation with the local government having jurisdiction over the
56 proposed brownfield opportunity area, shall request the municipal
S. 8071 18
1 government to review and state the municipal government's support or
2 lack of support. The municipal government's statement shall be consid-
3 ered a part of the application.
4 [g.] F. Prior to making an award for assistance, the [commissioner]
5 SECRETARY shall notify the temporary president of the senate and the
6 speaker of the assembly.
7 [h.] G. Following notification to the applicant that assistance has
8 been awarded, and prior to disbursement of funds, a contract shall be
9 executed between the department and the applicant or co-applicants. The
10 [commissioner] SECRETARY shall establish terms and conditions for such
11 contracts as the [commissioner] SECRETARY deems appropriate [in consul-
12 tation with the secretary of state], including provisions to define:
13 applicant's work scope, work schedule, and deliverables; fiscal reports
14 on budgeted and actual use of funds expended; and requirements for
15 submission of a final fiscal report. The contract shall also require the
16 distribution of work products to the department, and, for community
17 based organizations, to the applicant's municipality. Applicants shall
18 be required to make the results publicly available. Such contract shall
19 further include a provision providing that if any responsible party
20 payments become available to the applicant, the amount of such payments
21 attributable to expenses paid by the award shall be paid to the depart-
22 ment by the applicant; provided that the applicant may first apply such
23 responsible party payments towards actual project costs incurred by the
24 applicant.
25 H. TO THE EXTENT THAT THERE ARE UNEXPENDED FUNDS APPROPRIATED TO THE
26 DEPARTMENT OF ENVIRONMENTAL CONSERVATION FOR FINANCIAL ASSISTANCE
27 AUTHORIZED IN THIS SUBDIVISION, THE COMMISSIONER SHALL SUBALLOCATE SUCH
28 FUNDS TO THE SECRETARY.
29 S 26. Subdivision 7 of section 970-r of the general municipal law, as
30 amended by chapter 390 of the laws of 2008, is amended to read as
31 follows:
32 7. Amendments to designated area. Any proposed amendment to a brown-
33 field opportunity area designated pursuant to this section shall be
34 proposed TO, and reviewed by the secretary[, in the same manner and
35 using the same criteria set forth in this section and applicable to an
36 initial nomination for the designation of a brownfield opportunity
37 area]. THE SECRETARY SHALL PROMULGATE RULES THAT CONTAIN CRITERIA AND
38 TIMEFRAMES FOR REVIEW AND APPROVAL OF AMENDMENTS.
39 S 27. Subdivision 8 of section 970-r of the general municipal law, as
40 added by section 1 of part F of chapter 1 of the laws of 2003, is
41 amended to read as follows:
42 8. Applications. a. All applications for pre-nomination study assist-
43 ance or applications for designation of a brownfield opportunity area
44 shall demonstrate that the following community participation activities
45 have been or will be performed by the applicant:
46 (1) identification of the interested public and preparation of a
47 contact list;
48 (2) identification of major issues of public concern;
49 (3) provision [to] FOR access to the draft and final application for
50 pre-nomination assistance and brownfield opportunity area designation
51 supporting documents in a manner convenient to the public;
52 (4) public notice and newspaper notice of (i) the intent of the muni-
53 cipality and/or community based organization to undertake a pre-nomina-
54 tion process or prepare a brownfield opportunity area plan, and (ii) the
55 availability of such application.
S. 8071 19
1 b. Application for nomination of a brownfield opportunity area shall
2 provide the following minimum community participation activities:
3 (1) a comment period of at least thirty days on a draft application;
4 (2) a public meeting on a brownfield opportunity area draft applica-
5 tion.
6 C. AN APPLICANT THAT HAS SATISFACTORILY SUBMITTED INFORMATION EQUIV-
7 ALENT TO A PRE-NOMINATION STUDY MAY FORGO A PRE-NOMINATION STUDY AND IS
8 ELIGIBLE TO APPLY FOR STATE ASSISTANCE FOR NOMINATIONS TO DESIGNATE A
9 BROWNFIELD OPPORTUNITY AREA.
10 D. APPLICATIONS FOR PRE-NOMINATION OR NOMINATION PURSUANT TO THIS
11 SECTION MAY BE SUBMITTED TO THE SECRETARY AT ANY TIME DURING THE CALEN-
12 DAR YEAR.
13 S 28. Severability clause. If any clause, sentence, paragraph, subdi-
14 vision, section or part of this act shall be adjudged by any court of
15 competent jurisdiction to be invalid, such judgment shall not affect,
16 impair or invalidate the remainder thereof, but shall be confined in its
17 operation to the clause, sentence, paragraph, subdivision, section or
18 part thereof directly involved in the controversy in which such judgment
19 shall have been rendered. It is hereby declared to be the intent of the
20 legislature that this act would have been enacted even if such invalid
21 provisions had not been included herein.
22 S 29. This act shall take effect immediately.
