Amd SS27-1405, 27-1409, 27-1318, 27-1415, 27-1419 & 56-0503, add Art 71 SS71-4501 - 71-4531, En Con L; amd
SS21, 22 & 23, Tax L; rpld Part H S31, Chap 1 of 2003
Relates to brownfield site cleanup; establishes environmental covenants; repeals provisions of law relating to brownfield redevelopment tax credits.
STATE OF NEW YORK
________________________________________________________________________
6063
2013-2014 Regular Sessions
IN ASSEMBLY
March 14, 2013
___________
Introduced by M. of A. BRINDISI -- read once and referred to the Commit-
tee on Environmental Conservation
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] is complicated by the ground
6 surface or below ground surface level presence or [potential] suspected
7 presence of a contaminant regardless of the source of such contaminant.
8 A brownfield site is 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 (b) Such term shall not include real property:
17 [(a)] (i) listed in the registry of inactive hazardous waste disposal
18 sites under section 27-1305 of this article at the time of application
19 to this program and given a classification as described in subparagraph
20 one or two of paragraph b of subdivision two of section 27-1305 of this
21 article; provided, however except until July first, two thousand five,
22 real property listed in the registry of inactive hazardous waste
23 disposal sites under subparagraph two of paragraph b of subdivision two
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD04685-02-3
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1 of section 27-1305 of this article prior to the effective date of this
2 article, where such real property is owned by a volunteer shall not be
3 deemed ineligible to participate and further provided that the status of
4 any such site as listed in the registry shall not be altered prior to
5 the issuance of a certificate of completion pursuant to section 27-1419
6 of this title;
7 [(b)] (ii) listed on the national priorities list established under
8 authority of 42 U.S.C. section 9605;
9 [(c)] (iii) subject to an enforcement action under title seven or nine
10 of this article, [except] or permitted as a treatment, storage or
11 disposal facility [subject to a permit]; provided, that nothing herein
12 contained shall be deemed otherwise to exclude from the scope of the
13 term "brownfield site" a hazardous waste treatment, storage or disposal
14 facility having interim status according to regulations promulgated by
15 the commissioner;
16 [(d)] (iv) subject to an order for cleanup pursuant to article twelve
17 of the navigation law or pursuant to title ten of article seventeen of
18 this chapter except such property shall not be deemed ineligible if it
19 is subject to a stipulation agreement; or
20 [(e)] (v) subject to any other on-going state or federal environmental
21 enforcement action related to the contamination which is at or emanating
22 from the site subject to the present application.
23 (vi) provided however for otherwise ineligible sites given a classi-
24 fication as described in subparagraph two or three of paragraph b of
25 subdivision two of section 27-1305 of this article, and ineligible sites
26 described in subparagraph (iii) of this paragraph, a volunteer shall not
27 be deemed ineligible to participate in regards to any such ineligible
28 site if such volunteer intends to acquire and redevelop such real prop-
29 erty and assume responsibility, not for past costs incurred prior to the
30 application, but for all future costs to complete any remaining investi-
31 gation and remediation upon acquisition of such real property, or main-
32 tain long term institutional and engineering controls of the site, and
33 implement a redevelopment project on the site, the site conforms to the
34 definition of a brownfield site in paragraph (a) of this subdivision,
35 and enters into a brownfield cleanup agreement in accordance with
36 section 27-1409 of this title. Any on-going state actions and/or orders
37 will not be superseded by the volunteer's brownfield cleanup agreement,
38 but will remain in full force and effect until such time as the volun-
39 teer receives a certificate of completion pursuant to section 27-1419 of
40 this title and thereafter to the extent the volunteer or subsequent
41 owner or operator fail to comply with the terms of an environmental
42 easement if one had been created pursuant to title thirty-six of article
43 seventy-one, or an environmental covenant as of this chapter pursuant to
44 title forty-five of article seventy-one of this chapter. In the event
45 the volunteer does not receive the certificate of completion or such
46 certificate of completion is revoked for any reason, any and all state
47 enforcements action immediately will resume after timely notice to all
48 parties.
49 § 2. The opening paragraph of subdivision 2 of section 27-1409 of the
50 environmental conservation law is designated paragraph (a) and a new
51 paragraph (b) is added to read as follows:
52 (b) Notwithstanding any provision of law to the contrary, all appli-
53 cants accepting participation in the brownfield cleanup program shall
54 pay all reasonable state costs, however, such state costs shall not
55 exceed five percent of the total site preparation costs, as defined by
56 paragraph two of subdivision (b) of section twenty-one of the tax law,
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1 paid or incurred by the applicant, and the total state costs owed shall
2 be payable upon ninety days of, (i) the issuance of the certificate of
3 completion for the project, or, (ii) upon termination of a participant's
4 brownfield cleanup agreement by the department for failure to substan-
5 tially comply with such agreement's terms and conditions, or (iii), the
6 voluntary withdrawal of the applicant. Failure to remit due payments to
7 the state shall result in the revocation of such certificate of
8 completion, and will prohibit any future participation of an applicant
9 in the program. Payment of state costs shall be made to the hazardous
10 waste remedial fund established pursuant to section ninety-seven-b of
11 the state finance law.
12 § 3. Article 71 of the environmental conservation law is amended by
13 adding a new title 45 to read as follows:
14 TITLE 45
15 ENVIRONMENTAL COVENANTS
16 Section 71-4501. Short title.
17 71-4503. Declaration of policy and statement of purpose.
18 71-4505. Definitions.
19 71-4507. Nature of rights; subordination of interests.
20 71-4509. Contents of environmental covenant.
21 71-4511. Validity; effect on other instruments.
22 71-4513. Relationship to other land use law.
23 71-4515. Notice.
24 71-4517. Recording.
25 71-4519. Coordination with local governments.
26 71-4521. Duration.
27 71-4523. Amendment or termination by consent.
28 71-4525. Enforcement of environmental covenant.
29 71-4527. Uniformity of application and construction.
30 71-4529. Regulations.
31 71-4531. Severability.
32 § 71-4501. Short title.
33 This title shall be known and may be cited as the "uniform environ-
34 mental covenants act".
35 § 71-4503. Declaration of policy and statement of purpose.
36 The legislature hereby finds and declares that contaminated site reme-
37 dial programs are an important and necessary component of the state's
38 policy of restoring and revitalizing real property located throughout
39 New York state. The legislature further finds that when an environmental
40 remediation project leaves residual contamination at levels that have
41 been determined to be safe for a specific use, but not all uses, or
42 includes engineered structures that must be maintained or protected
43 against damage to be effective, it is necessary to provide an effective
44 and enforceable means of ensuring the performance of maintenance, moni-
45 toring or operation requirements, and of ensuring the potential
46 restriction of future uses of the land, including restrictions on drill-
47 ing for or pumping groundwater, for as long as any residual contam-
48 ination remains hazardous. The legislature declares, therefore, that it
49 is in the public interest to create land use controls in the form of
50 environmental covenants because such environmental covenants are neces-
51 sary for the protection of human health and the environment and to
52 achieve the requirements for remediation established at contaminated
53 sites. It is the intent of the legislature that the provisions of this
54 section shall not be construed as limiting or otherwise affecting any
55 authority conferred upon the department by any other provision of law.
56 § 71-4505. Definitions.
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1 When used in this title:
2 1. "Activity and use limitations" means restrictions or obligations
3 created under this title with respect to real property.
4 2. "Affected local government" means every municipality in which land
5 subject to an environmental covenant is located.
6 3. "Common interest community" means a condominium, cooperative, or
7 other real property association or organization with respect to which a
8 person, by virtue of the person's common interest, as that term is
9 defined in section three hundred thirty-nine-e of the real property law,
10 or ownership of a unit, share or parcel of real property, is obligated
11 to pay property taxes or insurance premiums, or for maintenance, or
12 improvement of other real property described in a recorded declaration
13 or covenant that creates the common interest community.
14 4. "Environmental covenant" means a servitude running with the land
15 arising under an environmental remedial program that imposes activity
16 and use limitations as well as maintenance, monitoring or operation
17 requirements associated with the environmental remedial program.
18 5. "Environmental remedial program" means a remedial program conducted
19 at real property:
20 (a) under a federal or state program governing environmental remedi-
21 ation of real property, including remedial programs pursuant to titles
22 thirteen and fourteen of article twenty-seven of this chapter, title
23 five of article fifty-six of this chapter and article twelve of the
24 navigation law;
25 (b) incident to a department-approved closure of a solid or hazardous
26 waste management unit;
27 (c) under a corrective action plan pursuant to title nine of article
28 twenty-seven of this chapter; or
29 (d) under other department remedial programs.
30 6. "Holder" means the grantee of an environmental covenant as speci-
31 fied in subdivision one of section 71-4507 of this title.
32 7. "Person" means an individual, corporation, business trust, estate,
33 trust, partnership, limited liability company, association, joint
34 venture, public corporation, government, governmental subdivision, agen-
35 cy, or instrumentality, or any other legal or commercial entity.
36 8. "Record", used as a noun, means information that is inscribed on a
37 tangible medium or that is stored in an electronic or other medium and
38 is retrievable in perceivable form.
39 § 71-4507. Nature of rights; subordination of interests.
40 1. The department shall be a holder and may identify one or more addi-
41 tional holders or beneficiaries. The interest of a holder is an interest
42 in real property.
43 2. A right of the department or other intended beneficiary under this
44 title or under an environmental covenant, other than a right as a hold-
45 er, is not an interest in real property.
46 3. The department is bound by any obligation it assumes in an environ-
47 mental covenant, but the department does not assume obligations merely
48 by signing an environmental covenant. Any other person that signs an
49 environmental covenant is bound by the obligations the person assumes in
50 the covenant, but signing the covenant does not change obligations,
51 rights, or protections granted or imposed under law other than this
52 title except as provided in the covenant.
53 4. The following rules apply to interests in real property in exist-
54 ence at the time an environmental covenant is created or amended:
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1 (a) An interest that has priority under other law is not affected by
2 an environmental covenant unless the person that owns the interest
3 subordinates that interest to the covenant.
4 (b) This title does not require a person that owns a prior interest to
5 subordinate that interest to an environmental covenant or to agree to be
6 bound by the covenant.
7 (c) A subordination agreement may be contained in an environmental
8 covenant covering real property or in a separate record. If the environ-
9 mental covenant covers commonly owned property in a common interest
10 community, the subordinate agreement or record may be signed by any
11 person authorized by law, a recorded instrument, or the governing board
12 of the owners' association to bind the common interest community.
13 (d) An agreement by a person to subordinate a prior interest to an
14 environmental covenant affects the priority of that person's interest
15 but does not by itself impose any affirmative obligation on the person
16 with respect to the environmental covenant.
17 5. The department may require that a subordination agreement be
18 obtained as a condition of accepting an environmental covenant to
19 protect public health and the environment.
20 § 71-4509. Contents of environmental covenant.
21 1. An environmental covenant must be on a form prescribed by the
22 department and:
23 (a) be granted by the title owners of the relevant real estate only by
24 an instrument that complies with the requirements of section 5-703 of
25 the general obligations law and is signed and acknowledged in the manner
26 of a deed to be recorded;
27 (b) state that the instrument is an environmental covenant executed
28 pursuant to this title;
29 (c) describe the property encumbered by the environmental covenant by
30 adequate legal description or by reference to a recorded map showing its
31 boundaries and bearing the seal and signature of a licensed land
32 surveyor or, if the covenant encumbers the entire property described in
33 a deed of record, the covenant may incorporate by reference the
34 description in such deed, otherwise it shall refer to the liber and page
35 of the deed or deeds of the record owner or owners of the real property
36 burdened by the environmental covenant;
37 (d) describe the activity and use limitations on the real property;
38 (e) include any engineering controls and/or maintenance required for
39 the environmental covenant or provide a reference to publicly available
40 documents containing such information;
41 (f) describe the requirements for notice following transfer of a spec-
42 ified interest in, or concerning proposed changes in use of, applica-
43 tions for building permits for, or proposals for any site work affecting
44 the contamination on the property subject to the covenant;
45 (g) describe the requirements for periodic reporting describing
46 compliance with the covenant;
47 (h) describe the rights of access to the property granted in
48 connection with implementation or enforcement of the covenant, including
49 but not limited to the right of agents, employees, or other represen-
50 tatives of the state to enter and inspect the property burdened by an
51 environmental covenant in a reasonable manner and at reasonable times to
52 assure compliance with the restriction;
53 (i) identify the department as the holder and, if appropriate, the
54 federal government or other appropriate party as an additional holder or
55 intended third party beneficiary. If there is a holder in addition to
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1 the department, the department must approve the holder, and the holder
2 must agree to the terms of the covenant;
3 (j) include an acknowledgment by the department of its acceptance of
4 the environmental covenant;
5 (k) be signed by every holder and, unless waived by the department,
6 every owner of the fee simple of the real property subject to the coven-
7 ant;
8 (l) identify the name and location of any administrative record for
9 the environmental remedial program reflected in the environmental coven-
10 ant;
11 (m) include an agreement to incorporate, either in full or by refer-
12 ence, the environmental covenant in any leases, licenses, or other
13 instruments granting a right to use the property that may be affected by
14 such covenant; and
15 (n) the department may require that information delineated in para-
16 graphs (d), (e), (f), (g) and (h) of this subdivision be enumerated in a
17 site management plan in lieu of being set forth in the environmental
18 covenant.
19 2. In addition to the information required by subdivision one of this
20 section, an environmental covenant may contain other information,
21 restrictions, and requirements agreed to by the persons who signed it,
22 including any:
23 (a) limitation on amendment or termination of the covenant in addition
24 to those contained in sections 71-4521 and 71-4523 of this title; and
25 (b) rights of the holder in addition to its right to enforce the
26 covenant pursuant to section 71-4525 of this title.
27 3. In addition to other conditions for its approval of an environ-
28 mental covenant, the department may require those persons specified by
29 the department who have interests in the real property to sign the
30 covenant.
31 4. The title owners shall furnish to the department abstracts of title
32 and other documents sufficient to enable the department to determine
33 that the environmental covenants shall be an effective and enforceable
34 means of ensuring:
35 (a) the performance of maintenance, monitoring and operating require-
36 ments; and
37 (b) activities and use limitations.
38 5. Until such time as the environmental covenant is extinguished, the
39 property deed and all subsequent instruments of conveyance relating to
40 the subject property shall state in at least fifteen-point bold-faced
41 type: "This property is subject to an environmental covenant held by
42 the New York state department of environmental conservation pursuant to
43 title 45 of article 71 of the environmental conservation law." The prop-
44 erty deed and all subsequent instruments of conveyance relating to the
45 property encumbered by the covenant shall reference, by book and page
46 number, the environmental covenant. Such deed and instrument shall also
47 specify that the eligible property is subject to the restrictions
48 contained in such covenant. An instrument for the purpose of creating,
49 conveying, modifying, or terminating an environmental covenant shall not
50 be effective unless recorded.
51 § 71-4511. Validity; effect on other instruments.
52 1. An environmental covenant that complies with this title runs with
53 the land.
54 2. An environmental covenant that is otherwise effective is valid and
55 enforceable even if:
56 (a) it is not appurtenant to an interest in real property;
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1 (b) it is not of a character that has been recognized traditionally at
2 common law;
3 (c) it imposes a negative burden;
4 (d) it imposes an affirmative obligation on a person having an inter-
5 est in the real property or on the holder;
6 (e) the benefit or burden does not touch or concern real property; or
7 (f) there is no privity of estate or contract.
8 3. An instrument that creates restrictions or obligations with respect
9 to real property that would qualify as activity and use limitations
10 except for the fact that the instrument was recorded before the effec-
11 tive date of this title is not invalid or unenforceable because of any
12 of the limitations on enforcement of interests described in subdivision
13 two of this section or because it was identified as an easement, servi-
14 tude, deed restriction, or other interest. This title does not apply in
15 any other respect to such an instrument.
16 4. This title does not invalidate or render unenforceable any inter-
17 est, whether designated as an environmental covenant or other interest,
18 that is otherwise enforceable under the laws of this state.
19 5. This title shall not affect any interests or rights in real proper-
20 ty which are not environmental covenants, and shall not affect the
21 rights of owners to convey any interests in real property which they
22 could now create under existing law without reference to the terms of
23 this title. Nothing in this title shall diminish the powers granted by
24 any other law to acquire interests or rights in real property by
25 purchase, gift, eminent domain, or otherwise and to use the same for
26 public purposes.
27 § 71-4513. Relationship to other land use law.
28 This title does not authorize a use of real property that is otherwise
29 prohibited by zoning, by law other than this title regulating use of
30 real property, or by a recorded instrument that has priority over the
31 environmental covenant. An environmental covenant may prohibit or
32 restrict uses of real property which are authorized by zoning or by law
33 other than this title.
34 § 71-4515. Notice.
35 1. A copy of an environmental covenant, and any amendment or termi-
36 nation thereof, shall be provided in the manner required by the depart-
37 ment to:
38 (a) each person that signed the covenant;
39 (b) each person holding a recorded interest in the real property
40 subject to the covenant;
41 (c) each person in possession of the real property subject to the
42 covenant;
43 (d) each affected local government; and
44 (e) any other person the department requires.
45 2. The validity of a covenant is not affected by failure to provide a
46 copy of the covenant as required under this section.
47 3. The department shall include a copy of each environmental covenant
48 in the database created pursuant to section 27-1415 of this chapter and
49 make such database readily searchable.
50 § 71-4517. Recording.
51 1. An environmental covenant and any amendment or termination of the
52 covenant must be recorded in the office of the recording officer in the
53 manner prescribed by article nine of the real property law in every
54 county in which any portion of the real property subject to the covenant
55 is located. For purposes of indexing, a holder shall be treated as a
56 grantee.
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1 2. Except as otherwise provided in subdivision two of section 71-4521
2 of this title, an environmental covenant is subject to the laws of this
3 state governing recording and priority of interests in real property.
4 § 71-4519. Coordination with local governments.
5 Whenever an affected local government receives an application for a
6 building permit or any other application affecting land use or develop-
7 ment of land that is subject to an environmental covenant and that may
8 relate to or impact such covenant, the affected local government shall
9 notify the department and refer such application to the department. The
10 department shall evaluate whether the application is consistent with the
11 environmental covenant and shall notify the affected local government of
12 its determination in a timely fashion, considering the time frame for
13 the local government's review of the application. The affected local
14 government shall not approve the application until it receives approval
15 from the department.
16 § 71-4521. Duration.
17 1. An environmental covenant is perpetual unless it is:
18 (a) by its terms limited to a specific duration or terminated by the
19 occurrence of a specific event; or
20 (b) extinguished or amended by a release or amendment of the environ-
21 mental covenant executed by the department and filed with the office of
22 the recording officer for the county or counties where the land is situ-
23 ated in the manner prescribed by article nine of the real property law.
24 2. Except as otherwise provided in subdivision one of this section, an
25 environmental covenant may not be extinguished, limited, or impaired
26 through foreclosure of a lien, issuance of a tax deed, foreclosure of a
27 tax lien, or application of the doctrine of adverse possession,
28 prescription, eminent domain, abandonment, waiver, lack of enforcement,
29 or acquiescence, or a similar doctrine.
30 § 71-4523. Amendment or termination by consent.
31 1. An environmental covenant may be amended or terminated by consent
32 only if the amendment or termination is signed in the manner prescribed
33 by section 71-4509 of this title by:
34 (a) the department; and
35 (b) unless waived by the department, the current owner of the fee
36 simple of the real property subject to the covenant.
37 2. If an interest in real property is subject to an environmental
38 covenant, the interest is not affected by an amendment of the covenant
39 unless the current owner of the interest consents to the amendment or
40 has waived in a writing, signed in the manner prescribed by section
41 71-4509 of this title, the right to consent to amendments.
42 § 71-4525. Enforcement of environmental covenant.
43 1. A civil action for injunctive or other equitable relief for
44 violation of an environmental covenant may be maintained by:
45 (a) a party to the covenant;
46 (b) the department;
47 (c) any affected local government;
48 (d) any person to whom the covenant expressly grants power to enforce,
49 or is identified in the covenant as an intended beneficiary; or
50 (e) a person whose interest in the real property or whose collateral
51 or liability may be affected by the alleged violation of the covenant.
52 2. The environmental covenant is enforceable against the owner of the
53 burdened property, any lessees, and any person using the land.
54 3. A person is not responsible for or subject to liability for envi-
55 ronmental remediation solely because it has the right to enforce an
56 environmental covenant.
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1 4. Enforcement shall not be defeated because of any subsequent adverse
2 possession, laches, estoppel, or waiver. No general law of the state
3 which operates to defeat the enforcement of any interest in real proper-
4 ty shall operate to defeat the enforcement of any environmental covenant
5 unless such general law expressly states the intent to defeat the
6 enforcement of such covenant or provides for the exercise of the power
7 of eminent domain.
8 5. For any person who intentionally violates an environmental covenant
9 the department may revoke the certificate of completion provided by
10 section 27-1419 of this chapter as to the relevant real estate.
11 § 71-4527. Uniformity of application and construction.
12 In applying and construing this title, consideration must be given to
13 the need to promote uniformity of the law with respect to its subject
14 matter among states that enact it.
15 § 71-4529. Regulations.
16 The department is authorized to promulgate rules and regulations
17 necessary and appropriate to carry out the purposes of this title.
18 § 71-4531. Severability.
19 The provisions of this title shall be severable, and if any clause,
20 sentence, paragraph, subdivision, or part of this title shall be
21 adjudged by any court of competent jurisdiction to be invalid, such
22 judgment shall not affect, impair or invalidate the remainder thereof,
23 but shall be confined in its operation to the clause, sentence, para-
24 graph, subdivision, or part thereof directly involved in the controversy
25 in which such judgment shall have been rendered; provided that if an
26 environmental covenant created pursuant to this title is determined by
27 any court of competent jurisdiction to be land or water or an interest
28 in land or water subject to the provisions of article fourteen of the
29 constitution, then the authority of the state to hold or acquire such
30 covenant and the conveyance to the state of such covenant shall be void
31 ab initio.
32 § 4. Subdivision (b) of section 27-1318 of the environmental conserva-
33 tion law, as amended by section 2 of part E of chapter 577 of the laws
34 of 2004, is amended to read as follows:
35 (b) Within sixty days of commencement of the remedial design, the
36 owner of an inactive hazardous waste disposal site, and/or any person
37 responsible for implementing a remedial program at such site, where
38 institutional or engineering controls are employed pursuant to this
39 title, shall execute an environmental easement pursuant to title thir-
40 ty-six of article seventy-one of this chapter or an environmental coven-
41 ant pursuant to title forty-five of article seventy-one of this chapter.
42 § 5. Paragraph (d) of subdivision 7 of section 27-1415 of the environ-
43 mental conservation law, as added by section 1 of part A of chapter 1 of
44 the laws of 2003, is amended to read as follows:
45 (d) The commissioner shall create, update, and maintain a database
46 system for public information purposes and to monitor and track all
47 brownfield sites subject to this title. Data incorporated into such
48 system for each site for which information has been collected pursuant
49 to this title shall include, but shall not be limited to, a site summa-
50 ry, name of site owner, location, status of site remedial activity,
51 [and, if one has been created pursuant to title thirty-six of article
52 seventy-one of this chapter, a copy of the environmental easement,] and
53 a contact number to obtain additional information. The database shall
54 also include for each site a copy of the environmental easement, if one
55 has been created pursuant to title thirty-six of article seventy-one of
56 this chapter, or a copy of the environmental covenant, if one has been
A. 6063 10
1 created pursuant to title forty-five of article seventy-one of this
2 chapter. Sites shall be added to such system upon the execution of a
3 brownfield site cleanup agreement [pursuant to section 27-1409 of this
4 title]. If and when an environmental easement or covenant is modified or
5 extinguished, the copy of the environmental easement or covenant
6 contained in the database shall be updated accordingly. Such database
7 shall be in such a format that it can be readily searched by affected
8 local governments and the public for purposes including but not limited
9 to determining whether an environmental easement or covenant has been
10 recorded for a site pursuant to title thirty-six or forty-five of arti-
11 cle seventy-one of this chapter. The database shall be available elec-
12 tronically. Information from this database shall be incorporated into
13 the geographic information system created and maintained by the depart-
14 ment pursuant to section 3-0315 of this chapter.
15 § 6. Paragraph (e) of subdivision 2 of section 27-1419 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 (e) a certification that any use restrictions, institutional controls,
19 engineering controls and/or any operation and maintenance requirements
20 applicable to the site are contained in an environmental easement
21 created and recorded pursuant to title thirty-six of article seventy-one
22 of this chapter or an environmental covenant created and recorded pursu-
23 ant to title forty-five of such article and that any affected local
24 governments, as defined in title thirty-six of such article [seventy-one
25 of this chapter] have been notified that such easement or covenant has
26 been recorded;
27 § 7. Paragraph (g) of subdivision 2 of section 56-0503 of the environ-
28 mental conservation law, as amended by section 4 of part D of chapter 1
29 of the laws of 2003, is amended to read as follows:
30 (g) An agreement by the municipality that it shall put into place any
31 engineering and/or institutional controls (including environmental ease-
32 ments pursuant to title thirty-six of article seventy-one of this chap-
33 ter or environmental covenants pursuant to title forty-five of such
34 article) that the department may deem necessary to allow the contem-
35 plated use to proceed, that such engineering and/or institutional
36 controls shall be binding on such municipality, any successor in title,
37 and any lessees and that any successors in title and any lessees cannot
38 challenge state enforcement of such controls;
39 § 8. Paragraph 5 of subdivision (a) of section 21 of the tax law, as
40 amended by section 1 of part H of chapter 577 of the laws of 2004, is
41 amended to read as follows:
42 (5) Applicable percentage. For purposes of paragraphs two, three and
43 four of this subdivision, the applicable percentage shall be twelve
44 percent [in the case of credits claimed under article nine, nine-A,
45 thirty-two or thirty-three of this chapter, and ten percent in the case
46 of credits claimed under article twenty-two of this chapter,] except
47 that where at least fifty percent of the area of the qualified site
48 relating to the credit provided for in this section is located in an
49 environmental zone as defined in paragraph six of subdivision (b) of
50 this section, the applicable percentage shall be increased by an addi-
51 tional eight percent. Provided, however, as afforded in section 27-1419
52 of the environmental conservation law, if the certificate of completion
53 indicates that the qualified site has been remediated to Track 1 as that
54 term is described in subdivision four of section 27-1415 of the environ-
55 mental conservation law, the applicable percentage set forth in the
A. 6063 11
1 first sentence of this paragraph shall be increased by an additional two
2 percent.
3 § 9. Subparagraph (A) of paragraph 3-a of subdivision (a) of section
4 21 of the tax law, as added by chapter 390 of the laws of 2008, is
5 amended to read as follows:
6 (A) Notwithstanding any other provision of law to the contrary, the
7 tangible property credit component available for any qualified site
8 pursuant to paragraph three of this subdivision shall not exceed thir-
9 ty-five million dollars or three times the sum of the costs included in
10 the calculation of the site preparation credit component and the on-site
11 groundwater remediation credit component under paragraphs two and four,
12 respectively, of this subdivision, and the costs that would have been
13 included in the calculation of such components if not treated as an
14 expense and deducted pursuant to section 198 of the internal revenue
15 code, whichever is less; provided, however, that: (1) in the case of a
16 qualified site to be used primarily for manufacturing activities, the
17 tangible property credit component available for any qualified site
18 pursuant to paragraph three of this subdivision shall not exceed
19 [forty-five] one hundred fifty million dollars or [six] twenty times the
20 sum of the costs included in the calculation of the site preparation
21 credit component and the on-site groundwater remediation credit compo-
22 nent under paragraphs two and four, respectively, of this subdivision,
23 and the costs that would have been included in the calculation of such
24 components if not treated as an expense and deducted pursuant to section
25 198 of the internal revenue code, whichever is less; and (2) the
26 provisions of this paragraph shall not apply to any qualified site for
27 which the department of environmental conservation has issued a notice
28 to the taxpayer before June twenty-third, two thousand eight that its
29 request for participation has been accepted under subdivision six of
30 section 27-1407 of the environmental conservation law.
31 § 10. Paragraph 6 of subdivision (b) of section 21 of the tax law, as
32 amended by section 1 of part H of chapter 577 of the laws of 2004,
33 subparagraph (B) and the closing paragraph as amended by section 1 of
34 part G of chapter 62 of the laws of 2006, is amended to read as follows:
35 (6) Environmental zones (EN-Zones). An "environmental zone" shall mean
36 an area designated as such by the commissioner of economic development.
37 Such areas so designated are areas which are census tracts and block
38 numbering areas which, as of the [two thousand] most recent census,
39 satisfy either of the following criteria:
40 (A) areas that have both:
41 (i) a poverty rate of at least twenty percent for the year to which
42 the data relate; and
43 (ii) an unemployment rate of at least one and one-quarter times the
44 statewide unemployment rate for the year to which the data relate, or;
45 (B) areas that have a poverty rate of at least two times the poverty
46 rate for the county in which the areas are located for the year to which
47 the data relate [provided, however, that a qualified site shall only be
48 deemed to be located in an environmental zone under this subparagraph
49 (B) if such site was the subject of a brownfield site cleanup agreement
50 pursuant to section 27-1409 of the environmental conservation law that
51 was entered into prior to September first, two thousand ten].
52 Such designation shall be made and a list of all such environmental
53 zones shall be established by the commissioner of economic development
54 no later than December thirty-first, two thousand [four provided, howev-
55 er, that a qualified site shall only be deemed to be located in an envi-
56 ronmental zone under subparagraph (B) of this paragraph if such site was
A. 6063 12
1 the subject of a brownfield site cleanup agreement pursuant to section
2 27-1409 of the environmental conservation law that was entered into
3 prior to September first, two thousand ten] twelve.
4 § 11. Paragraph 5 of subdivision (a) of section 22 of the tax law, as
5 amended by section 4 of part H of chapter 577 of the laws of 2004,
6 subparagraph (B) and the closing paragraph as amended by section 2 of
7 part G of chapter 62 of the laws of 2006, is amended to read as follows:
8 (5) 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;
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] twelve.
33 § 12. Subdivision (a) of section 23 of the tax law, as amended by
34 section 10 of part H of chapter 577 of the laws of 2004, is amended to
35 read as follows:
36 (a) Allowance of credit. General. A taxpayer subject to tax under
37 article nine, nine-A, twenty-two, thirty-two or thirty-three of this
38 chapter shall be allowed a credit against such tax, pursuant to the
39 provisions referenced in subdivision (e) of this section. The amount of
40 such credit shall be equal to the lesser of [thirty] ninety thousand
41 dollars or fifty percent of the premiums paid on or after the date of
42 the brownfield site cleanup agreement executed by the taxpayer and the
43 department of environmental conservation pursuant to section 27-1409 of
44 the environmental conservation law by the taxpayer for environmental
45 remediation insurance issued with respect to a qualified site.
46 § 13. Section 31 of part H of chapter 1 of the laws of 2003 amending
47 the tax law relating to brownfield redevelopment tax credits, is
48 REPEALED.
49 § 14. Severability. If any clause, sentence, paragraph, subdivision,
50 section or part of this act shall be adjudged by any court of competent
51 jurisdiction to be invalid, such judgment shall not affect, impair or
52 invalidate the remainder thereof, but shall be confined in its operation
53 to the clause, sentence, paragraph, subdivision, section or part thereof
54 directly involved in the controversy in which such judgment shall have
55 been rendered. It is hereby declared to be the intent of the legislature
A. 6063 13
1 that this act would have been enacted even if such invalid provisions
2 had not been included herein.
3 § 15. This act shall take effect immediately and shall apply to a
4 qualified site for which the commissioner of environmental conservation
5 has issued a notice to the taxpayer or other applicant after July 1,
6 2013 that its request for participation has been accepted under subdivi-
7 sion 6 of section 27-1407 of the environmental conservation law.
