STATE OF NEW YORK
________________________________________________________________________
724
2013-2014 Regular Sessions
IN SENATE(Prefiled)
January 9, 2013
___________
Introduced by Sen. AVELLA -- 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
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD03720-01-3
S. 724 2
1 sites under subparagraph two of paragraph b of subdivision two of
2 section 27-1305 of this article prior to the effective date of this
3 article, where such real property is owned by a volunteer shall not be
4 deemed ineligible to participate and further provided that the status of
5 any such site as listed in the registry shall not be altered prior to
6 the issuance of a certificate of completion pursuant to section 27-1419
7 of this title;
8 (b) listed on the national priorities list established under authority
9 of 42 U.S.C. section 9605;
10 (c) subject to an enforcement action under title seven or nine of this
11 article, [except] or permitted as a treatment, storage or disposal
12 facility [subject to a permit]; provided, that nothing herein contained
13 shall be deemed otherwise to exclude from the scope of the term "brown-
14 field site" a hazardous waste treatment, storage or disposal facility
15 having interim status according to regulations promulgated by the
16 commissioner;
17 (d) subject to an order for cleanup pursuant to article twelve of the
18 navigation law or pursuant to title ten of article seventeen of this
19 chapter except such property shall not be deemed ineligible if it is
20 subject to a stipulation agreement; or
21 (e) subject to any other on-going state or federal environmental
22 enforcement action related to the contamination which is at or emanating
23 from the site subject to the present application.
24 4. "Brownfield site cleanup agreement" shall mean an agreement
25 executed in accordance with section 27-1409 of this title by an appli-
26 cant and the department for the purpose of completing a brownfield site
27 remedial program for those sites for which the department has issued a
28 notice to the applicant on or before July first, two thousand fourteen
29 that its request for participation has been accepted under subdivision
30 six of section 27-1407 of this title. For those sites for which the
31 department has issued such notice after July first, two thousand four-
32 teen, a brownfield site cleanup agreement shall mean the acceptance of a
33 request to participate in the brownfield cleanup program pursuant to
34 subdivision six of section 27-1407 of this title and the applicant's
35 acceptance of the terms of such participation pursuant to section
36 27-1409 of this title, with the date of the applicant's acceptance
37 deemed to be the date of the brownfield site cleanup agreement.
38 § 2. Subdivision 1 of section 27-1407 of the environmental conserva-
39 tion law, as amended by section 3 of part A of chapter 577 of the laws
40 of 2004, is amended to read as follows:
41 1. A person who seeks to participate in this program shall submit a
42 request to the department on a form provided by the department. Such
43 form shall include information to be determined by the department suffi-
44 cient to allow the department to determine eligibility and the current,
45 intended and reasonably anticipated future land use of the site pursuant
46 to section 27-1415 of this title. If the person who seeks to partic-
47 ipate in this program is also seeking to receive the tangible property
48 component of the brownfield redevelopment tax credit pursuant to para-
49 graph three of subdivision (a) of section twenty-one of the tax law such
50 person shall:
51 (a) submit information sufficient to demonstrate that (i) the site has
52 been abandoned for a period in excess of fifteen years, (ii) the site or
53 a part thereof is within or immediately adjacent to an environmental
54 zone as defined in paragraph six of subdivision (b) of section twenty-
55 one of the tax law, (iii) the projected cost of the investigation and
56 remediation which is protective for the anticipated use of the site
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1 exceeds the certified appraised value of the property absent contam-
2 ination, or (iv) the site is to be developed as affordable housing with-
3 in a low or moderate income census tract and (A) twenty percent of the
4 units are income restricted; or (B) a low income housing tax credit
5 project and twenty percent of the units are income restricted or a
6 project that has a minimum of fifty percent of the total units income
7 restricted with at least twenty percent of those units at or below
8 eighty percent of area median income (AMI) and subject to an agreement
9 with a municipality, the state, the federal government, or an instrumen-
10 tality thereof, where such agreement restricts occupancy of those units
11 to residents who qualify in accordance with an income test;
12 (b) submit an investigation report sufficient to demonstrate that the
13 site requires remediation in order to meet the remedial requirements of
14 this title; and
15 (c) for any site located within a brownfield opportunity area as
16 designated by the secretary of state pursuant to section nine hundred
17 seventy-r of the general municipal law, a demonstration that the devel-
18 opment of the site will be in conformance with such brownfield opportu-
19 nity area.
20 § 3. Subdivision 3 of section 27-1407 of the environmental conserva-
21 tion law, as amended by section 3 of part A of chapter 577 of the laws
22 of 2004, is amended to read as follows:
23 3. The department shall notify the person requesting participation in
24 this program within [ten] thirty days after receiving such request that
25 such request is either complete or incomplete. In the event the applica-
26 tion is determined to be incomplete the department shall specify in
27 writing the missing necessary information required pursuant to this
28 article to complete the application and shall have ten days after
29 receipt of the missing information to issue a written determination if
30 the application is complete.
31 § 4. Subdivision 6 of section 27-1407 of the environmental conserva-
32 tion law, as added by section 1 of part A of chapter 1 of the laws of
33 2003, is amended to read as follows:
34 6. The department shall use all best efforts to expeditiously notify
35 the applicant within forty-five days after receiving [their] a request
36 for participation that such request is either accepted or rejected, and,
37 for any applicant seeking to receive the tangible property component of
38 the brownfield redevelopment tax credit pursuant to paragraph three of
39 subdivision (a) of section twenty-one of the tax law, a determination
40 whether the criteria for receiving such component as set forth in subdi-
41 vision one of this section have been met.
42 § 5. Paragraphs (c) and (d) of subdivision 8 of section 27-1407 of the
43 environmental conservation law, as amended by section 3 of part A of
44 chapter 577 of the laws of 2004, are amended and a new paragraph (e) is
45 added to read as follows:
46 (c) there is an order providing for the investigation, removal, or
47 remediation of contamination relating to the brownfield site against the
48 person who is requesting participation; [or]
49 (d) [The] the person requesting participation is subject to an
50 outstanding claim as provided in subdivision four of this section[.]; or
51 (e) the person's participation in any remediation program under the
52 department's oversight was terminated by the department for failure to
53 substantially comply with an agreement or order.
54 § 6. Section 27-1409 of the environmental conservation law is REPEALED
55 and a new section 27-1409 is added to read as follows:
56 § 27-1409. Terms of participation.
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1 1. Within fifteen days of receipt of a notice pursuant to subdivision
2 six of section 27-1407 of this title that its request for participation
3 has been accepted, the applicant shall, within fifteen days, advise the
4 department in writing whether it accepts the department's eligibility
5 determination and the terms and conditions of participation as provided
6 in subdivision two of this section, the regulations promulgated and
7 guidance issued pursuant to this title, and other terms and conditions
8 as may be contained in the notice. If the applicant does not so advise
9 the department or declines to accept such terms and conditions, the
10 application shall be deemed denied.
11 2. All applicants accepting participation in the brownfield cleanup
12 program in accordance with subdivision one of this section are subject
13 to the following terms and conditions:
14 (a) The boundaries of the real property that will be considered the
15 participating brownfield site for purposes of this title shall be those
16 set forth in the department's notice pursuant to subdivision six of
17 section 27-1407 of this title;
18 (b) The applicant shall pay for state costs incurred after the date of
19 the department's notice pursuant to subdivision six of section 27-1407
20 of this title; provided, however, that with respect to a brownfield site
21 which the department has determined constitutes a significant threat to
22 the public health or environment the department may include a provision
23 requiring the applicant to provide a technical assistance grant, as
24 described in subdivision four of section 27-1417 of this title and under
25 the conditions described therein, to an eligible party in accordance
26 with procedures established under such program, with the cost of such a
27 grant incurred by a volunteer serving as an offset against such state
28 costs. Where the applicant is a participant, the department shall
29 include provisions relating to recovery of state costs incurred before
30 the date of such notice;
31 (c) Disputes arising from the evaluation, analysis, and oversight of
32 the implementation of the work plan shall be resolved in accordance with
33 regulations promulgated by the department;
34 (d) Section eight of the court of claims act or any other provision of
35 law to the contrary notwithstanding, the state shall be immune from
36 liability and action with respect to any act or omission done in the
37 discharge of the department's responsibilities under this title;
38 provided, however, that this paragraph shall not limit the liability
39 which may otherwise exist for the state's gross negligence or unlawful,
40 willful or malicious acts or omissions on the part of the state, state
41 agencies, or their officers, employees or agents;
42 (e) The department may terminate an applicant's participation in the
43 brownfield cleanup program at any time if the applicant fails to
44 substantially comply with the terms and conditions of this section, any
45 duly promulgated regulations implementing the brownfield cleanup
46 program, any terms and conditions set forth in the department's notice
47 pursuant to subdivision six of section 27-1407 of this title, or any
48 work plan approved by the department;
49 (f) The department shall not consider the applicant an operator of a
50 brownfield site based solely upon participation in the brownfield clean-
51 up program for purposes of remediation liability;
52 (g) The applicant shall conduct investigation and/or remediation
53 activities pursuant to work plans approved by the department and shall
54 begin such investigation and/or remediation activities within ninety
55 days of approval of the work plan by the department;
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1 (h) The applicant shall prepare and implement a citizen participation
2 plan consistent with the requirements of this title as soon as possible
3 following the department's notice pursuant to subdivision six of section
4 27-1407 of this title but prior to the preparation of a draft remedial
5 investigation plan by the applicant which shall include a description of
6 citizen participation activities already performed by the applicant
7 and/or the department; and
8 (i) Effective upon the acceptance into the brownfield cleanup program
9 pursuant to subdivision one of this section, the applicant is deemed to
10 have waived any right such applicant has or may have to make a claim
11 against the state of New York pursuant to article twelve of the naviga-
12 tion law with respect to the brownfield site, is deemed to have released
13 the New York environmental protection and spill compensation fund from
14 any and all legal or equitable claims or causes of action that such
15 applicant may have as a result of participating in the brownfield clean-
16 up program or fulfilling a brownfield site remedial program as such
17 site.
18 § 7. Section 27-1411 of the environmental conservation law is amended
19 by adding two new subdivisions 6 and 7 to read as follows:
20 6. An applicant shall commence implementation of any work plan within
21 ninety days of approval of the plan by the department and complete the
22 activities provided for in such work plan in accordance with the sched-
23 ule set forth therein, or as otherwise approved by the department in
24 writing.
25 7. An applicant shall include with every report submitted to the
26 department a schedule for the submission of any subsequent work plan
27 required to meet the requirements of this title.
28 § 8. Subdivision 3 of section 27-1419 of the environmental conserva-
29 tion law, as amended by chapter 390 of the laws of 2008, is amended to
30 read as follows:
31 3. Upon receipt of the final engineering report, the department shall
32 review such report and the data submitted pursuant to the brownfield
33 site cleanup agreement as well as any other relevant information regard-
34 ing the brownfield site. Upon satisfaction of the commissioner that the
35 remediation requirements set forth in this title have been or will be
36 achieved in accordance with the timeframes, if any, established in the
37 remedial work plan, the commissioner shall issue a written certificate
38 of completion[, such]. Such certificate shall include such information
39 as determined by the department of taxation and finance, including but
40 not limited to the brownfield site boundaries included in the final
41 engineering report, the date of the brownfield site cleanup agreement
42 pursuant to section 27-1409 of this title, and the applicable percent-
43 ages available as of the date of the certificate of completion for that
44 site for purposes of section twenty-one of the tax law[, with such]. For
45 those sites for which the department has issued a notice to the taxpayer
46 after July first, two thousand fourteen that its request for partic-
47 ipation has been accepted under subdivision six of section 27-1407 of
48 this title, the tangible property component of the brownfield redevelop-
49 ment tax credit pursuant to paragraph three of subdivision (a) of
50 section twenty-one of the tax law shall only be available to the taxpay-
51 er if such notice includes a determination that the criteria for receiv-
52 ing such tax component have been met. Applicable percentages [to] for
53 computing the brownfield redevelopment tax credit pursuant to section
54 twenty-one of the tax law shall be determined as follows:
55 (a) with respect to such qualified site for which the department has
56 issued a notice to the taxpayer after June twenty-third, two thousand
S. 724 6
1 eight that its request for participation has been accepted under subdi-
2 vision six of section 27-1407 of this title[: For the purposes of
3 calculating], the applicable percentage for the site preparation credit
4 component pursuant to paragraph two of subdivision (a) of section twen-
5 ty-one of the tax law, and the on-site groundwater remediation credit
6 component pursuant to paragraph four of subdivision (a) of section twen-
7 ty-one of the tax law[, the applicable percentage] shall be based on the
8 level of cleanup achieved pursuant to subdivision four of section
9 27-1415 of this title and the level of cleanup of soils to contaminant-
10 specific soil cleanup objectives promulgated pursuant to subdivision six
11 of section 27-1415 of this title, up to a maximum of fifty percent, as
12 follows:
13 [(a)] (i) soil cleanup for unrestricted use, the protection of ground-
14 water or the protection of ecological resources, the applicable percent-
15 age shall be fifty percent;
16 [(b)] (ii) soil cleanup for residential use, the applicable percentage
17 shall be forty percent, except for Track 4 which shall be twenty-eight
18 percent;
19 [(c)] (iii) soil cleanup for commercial use, the applicable percentage
20 shall be thirty-three percent, except for Track 4 which shall be twen-
21 ty-five percent;
22 [(d)] (iv) soil cleanup for industrial use, the applicable percentage
23 shall be twenty-seven percent, except for Track 4 which shall be twen-
24 ty-two percent.
25 (b) with respect to such qualified site for which the department has
26 issued a notice to the taxpayer after July first, two thousand fourteen
27 that its request for participation has been accepted under subdivision
28 six of section 27-1407 of this title, the applicable percentage for the
29 tangible property credit component of the brownfield redevelopment tax
30 pursuant to paragraph three of subdivision (a) of section twenty-one of
31 the tax law the applicable percentage shall be the sum of six percent
32 and the following additional percentages, provided that the total
33 percentage of the tangible property credit component shall not exceed
34 twenty-four percent and is otherwise subject to the limitations set
35 forth in paragraph three-a of subdivision (a) of section twenty-one of
36 the tax law:
37 (i) ten percent for a site within and in conformance with a brownfield
38 opportunity area designated as such by the secretary of state pursuant
39 to section nine hundred seventy-r of the general municipal law. For any
40 site within an environmental zone and within and in conformance with a
41 brownfield opportunity area, the applicable percentage under this
42 subparagraph shall be twelve percent;
43 (ii) four percent for sites on which the primary development is a
44 building or buildings constructed in conformance with green building
45 regulations promulgated pursuant to section nineteen of the tax law or
46 section eighteen hundred seventy-two of the public authorities law; and
47 (iii) eight percent for sites within an environmental zone as defined
48 in paragraph six of subdivision (b) of section twenty-one of the tax law
49 or in a census tract that is immediately adjacent to an environmental
50 zone; or the site is to be developed as affordable housing defined as
51 having at least twenty percent of its residential units subject to an
52 agreement with a municipality, the state, the federal government or an
53 instrumentality thereof, where such agreement restricts occupancy of
54 those units to residents who qualify in accordance with an income test
55 and are located within a qualified community development block grant
56 (CDBG) eligible census tract as defined by the federal government or the
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1 site is to be developed for affordable housing with at least fifty
2 percent of its residential units at or below eighty percent of area
3 median income as defined by the United States Department of Housing and
4 Urban Development for the metropolitan statistical area or county in
5 which the site is located and subject to an agreement with a munici-
6 pality, the state, the federal government, or an instrumentality there-
7 of, where such agreement restricts occupancy of those units to residents
8 who qualify in accordance with an income test.
9 (c) All other applicable percentages are set forth in paragraph five
10 of subdivision (a) of section twenty-one of the tax law.
11 § 9. Subdivision 5 of section 27-1419 of the environmental conserva-
12 tion law, as amended by section 9 of part A of chapter 577 of the laws
13 of 2004, is amended to read as follows:
14 5. A certificate of completion issued pursuant to this section may be
15 transferred to the applicant's successors or assigns upon transfer or
16 sale of the brownfield site. Further, a certificate of completion may be
17 modified or revoked by the commissioner upon a finding that:
18 (a) Either the applicant, or the applicant's successors or assigns,
19 has failed to comply with the terms and conditions of the brownfield
20 site cleanup agreement;
21 (b) The applicant made a misrepresentation of a material fact tending
22 to demonstrate that it (i) was qualified as a volunteer or (ii) met the
23 criteria set forth in subdivision one of section 27-1407 of this title
24 for the purpose of receiving the tangible property component of the
25 brownfield redevelopment tax credit pursuant to paragraph three of
26 subdivision (a) of section twenty-one of the tax law;
27 (c) Either the applicant, or the applicant's successors or assigns,
28 made a misrepresentation of a material fact tending to demonstrate that
29 the cleanup levels identified in the brownfield site cleanup agreement
30 were reached; [or]
31 (d) The environmental easement granted to the department pursuant to
32 title thirty-six of article seventy-one of this chapter does not provide
33 an effective or enforceable means of ensuring the performance of mainte-
34 nance, monitoring or operating requirements, or the restrictions on
35 future land uses, including restrictions on drilling for or withdrawing
36 groundwater; or
37 (e) There is good cause for such modification or revocation.
38 § 10. Subdivision 1 of section 27-1423 of the environmental conserva-
39 tion law, as amended by section 11 of part A of chapter 577 of the laws
40 of 2004, is amended to read as follows:
41 1. Pursuant to timetables contained in the brownfield site cleanup
42 agreement, the [volunteer] applicant shall pay all state costs incurred
43 in negotiating and overseeing implementation of such agreement,
44 provided, however, as set forth in a brownfield site cleanup agreement
45 pursuant to this title, that such costs may be based upon a reasonable
46 flat-fee for oversight, which shall reflect the projected future state
47 costs to be incurred in negotiating and overseeing implementation of
48 such agreement. In addition, a participant shall pay all costs incurred
49 by the state up to the effective date of such agreement.
50 § 11. Section 27-1429 of the environmental conservation law, as
51 amended by section 13 of part A of chapter 577 of the laws of 2004, is
52 amended to read as follows:
53 § 27-1429. Permit waivers.
54 The department[, by and through the commissioner,] shall be exempt,
55 and shall be authorized to exempt a person from the requirement to
56 obtain any state or local permit or other authorization for any activity
S. 724 8
1 needed to implement a program for the investigation and/or remediation
2 of contamination at or emanating from a brownfield site; provided that
3 the activity is conducted in a manner which satisfies all substantive
4 technical requirements applicable to like activity conducted pursuant to
5 a permit.
6 § 12. Subdivision 1 of section 27-1431 of the environmental conserva-
7 tion law is amended by adding a new paragraph c to read as follows:
8 c. to inspect for compliance with the site management plan approved by
9 the department, including (i) inspection of the performance of mainte-
10 nance, monitoring and operational activities required as part of the
11 remedial program for the site, (ii) inspection for the purpose of ascer-
12 taining current uses of the site, and (iii) taking samples in accordance
13 with paragraph a of this subdivision.
14 § 13. Chapter 174 of the laws of 1968 constituting the New York state
15 urban development corporation act, is amended by adding a new section
16 16-v to read as follows:
17 § 16-v. Brownfields shovel-ready program. 1. Notwithstanding any other
18 provision of this act or any other law to the contrary, the provisions
19 of this section shall govern any project under the auspices of the
20 corporation for urban development and research of New York or its
21 successor in interest. It is the intent of the legislature and the
22 purpose of this legislation to stimulate economic development, afforda-
23 ble housing, community revitalization, and the siting of public amen-
24 ities on brownfield sites in distressed urban areas.
25 2. The chairman, in cooperation with the commissioner of environmental
26 conservation, and the secretary of state, shall develop a program to
27 produce new jobs, affordable housing and public amenities on brownfield
28 sites in distressed urban areas, the "Brownfields shovel-ready program".
29 The chairman is authorized to carry out a program which will include the
30 acquisition assessment, demolition, cleanup, and other site preparation
31 costs necessary to achieve the reuse for these purposes by the urban
32 development corporation.
33 3. Eligible sites are limited to brownfield sites, as such term is
34 defined in section 27-1405 of the environmental conservation law; and
35 a. Sites that are part of a brownfield opportunity area or brownfield
36 opportunity study area pursuant to section 970-r of the general munici-
37 pal law. The development and future use of such site shall be limited to
38 uses consistent with an adopted brownfield opportunity area plan; or
39 b. Sites identified by the chairman which have not attracted private
40 redevelopment interest due to the degree of contamination and cost of
41 correction, provided that such acquisition and redevelopment is consist-
42 ent with uses established, through a local process and any restrictions
43 or limitations regarding such uses.
44 4. The chairman shall give priority to:
45 a. Sites located within a brownfield opportunity area, pursuant to
46 section 970-r of the general municipal law. Specifically, the chairman
47 will give priority to the consideration of sites referred pursuant to
48 section 970-r of the general municipal law; and
49 b. Projects in which the end use will be low- and moderate-income
50 residential property.
51 5. Eminent domain restrictions. a. For sites located within a brown-
52 field opportunity area, pursuant to section 970-r of the general munici-
53 pal law, the chairman shall only use eminent domain powers if the use of
54 such power has been specifically discussed and supported by the local
55 community through the comprehensive brownfield opportunity area planning
56 process, and identified in a designated brownfield opportunity area.
S. 724 9
1 b. For all other projects the chairman shall not exercise any eminent
2 domain powers provided for in this act.
3 6. The chairman is authorized to enter into contracts to prepare the
4 site; including the site assessment, demolition, cleanup and other site
5 preparation necessary to achieve the satisfaction of the commissioner of
6 environmental conservation.
7 7. By December thirty-first, two thousand fourteen the chairman shall
8 develop regulations for the implementation of this program. At a mini-
9 mum, such regulations shall include provisions stipulating:
10 a. That to achieve the preparation and remediation of brownfield sites
11 to be offered to developers or manufacturers for one dollar and other
12 good and valuable consideration. Such sites may be subdivided prior to
13 being offered.
14 b. In return for a remediated site sold for one dollar, developers
15 would agree to:
16 i. build quality buildings at a minimum cost of thirty-eight dollars
17 per square foot;
18 ii. meet the leadership in energy and environmental design (LEED)
19 green building rating system in the building construction;
20 iii. provide a minimum of one new job per one thousand square feet of
21 building space;
22 iv. pay a minimum of ten dollars and fifty cents per hour plus bene-
23 fits;
24 v. hire at least seventy percent of its workforce from the local
25 community; and
26 vi. all reasonable restrictions and limitations established by the
27 corporation for the brownfield site identified in the citizen partic-
28 ipation activities.
29 c. In the case that a remediated site is sold to an affordable housing
30 developer, the developer shall build housing units in accordance with
31 the state's affordability guidelines.
32 d. The corporation's citizen participation plan. The citizen partic-
33 ipation plan shall consider the level of citizen involvement, local
34 interest and history, and other relevant factors. While retaining flexi-
35 bility, citizen participation plans shall embody the following princi-
36 ples of meaningful citizen participation, and at a minimum shall
37 include:
38 i. an identification of the interested public and preparation of a
39 brownfield site contact list;
40 ii. identification of major issues of public concern related to the
41 brownfield site;
42 iii. a description and schedule of any additional public participation
43 activities needed to address public concerns;
44 iv. provisions for notice with respect to the acquisition, assessment,
45 demolition, cleanup, and other site preparation costs and intended reuse
46 of a site;
47 v. specific consultation regarding support for the corporation's
48 acquiring the brownfield site, intended reuse and any reasonable limita-
49 tions or conditions on the redevelopment of the brownfield site; and
50 vi. provisions to provide separate notice of all reasonable limita-
51 tions or conditions identified in the public participation that the
52 corporation has, will be required for the development of the brownfield
53 site.
54 § 14. Paragraph 3 of subdivision (a) of section 21 of the tax law, as
55 amended by chapter 390 of the laws of 2008, is amended to read as
56 follows:
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1 (3) Tangible property credit component. The tangible property credit
2 component shall be equal to the applicable percentage of the cost or
3 other basis for federal income tax purposes of tangible personal proper-
4 ty and other tangible property, including buildings and structural
5 components of buildings, which constitute qualified tangible property;
6 provided[, however,] that in determining the cost or other basis of such
7 property[,] the taxpayer may include the costs incurred in connection
8 with preparing a site for the erection of a building or a component of a
9 building, such as the cost of excavation, temporary electric wiring,
10 scaffolding, fencing and security facilities, to the extent that such
11 costs are not used as a basis for computing the site preparation compo-
12 nent of the brownfield redevelopment tax credit pursuant to paragraph
13 two of this subdivision; and provided further that the taxpayer shall
14 exclude the acquisition cost of any item of property with respect to
15 which a credit under this section was allowable to another taxpayer. The
16 credit component amount so determined shall be allowed for the taxable
17 year in which such qualified tangible property is placed in service on a
18 qualified site with respect to which a certificate of completion has
19 been issued to the taxpayer, or for the taxable year in which the
20 certificate of completion is issued if the qualified tangible property
21 is placed in service prior to the issuance of the certificate of
22 completion, for up to ten taxable years after the date of the issuance
23 of such certificate of completion. The tangible property credit compo-
24 nent shall be allowed with respect to property leased to a second party
25 only if such second party is either (i) not a party responsible for the
26 disposal of hazardous waste or the discharge of petroleum at the site
27 according to applicable principles of statutory or common law liability,
28 or (ii) a party responsible according to applicable principles of statu-
29 tory or common law liability if such party's liability arises solely
30 from operation of the site subsequent to the disposal of hazardous waste
31 or the discharge of petroleum, and is so certified by the commissioner
32 of environmental conservation at the request of the taxpayer, pursuant
33 to section 27-1419 of the environmental conservation law. Notwithstand-
34 ing any other provision of law to the contrary, in the case of allowance
35 of credit under this section to such a lessor, the commissioner shall
36 have the authority to reveal to such lessor any information, with
37 respect to the issue of qualified use of property by the lessee, which
38 is the basis for the denial in whole or in part, or for the recapture,
39 of the credit claimed by such lessor. For purposes of the tangible prop-
40 erty credit component allowed under this section the taxpayer to whom
41 the certificate of completion is issued, as provided for under subdivi-
42 sion five of section 27-1419 of the environmental conservation law, may
43 transfer the benefits and burdens of the certificate of completion,
44 which run with the land and to the applicant's successors or assigns
45 upon transfer or sale of all or any portion of an interest or estate in
46 the qualified site. However, the taxpayer to whom certificate's benefits
47 and burdens are transferred shall not include the cost of acquiring all
48 or any portion of an interest or estate in the site and the amounts
49 included in the cost or other basis for federal income tax purposes of
50 qualified tangible property already claimed by the previous taxpayer
51 pursuant to this section.
52 § 15. Subparagraph (D) of paragraph 3-a of subdivision (a) of section
53 21 of the tax law is REPEALED.
54 § 16. Paragraphs 5 and 6 of subdivision (a) of section 21 of the tax
55 law, as amended by section 1 of part H of chapter 577 of the laws of
56 2004, are amended to read as follows:
S. 724 11
1 (5) Applicable percentage. For purposes of computing the site prepara-
2 tion and on-site groundwater remediation components pursuant to para-
3 graphs two[, three] and four of this subdivision, with respect to such
4 qualified sites for which the department has issued a notice to the
5 taxpayer before June twenty-third, two thousand eleven that its request
6 for participation has been accepted under subdivision six of section
7 27-1407 of the environmental conservation law, or where the taxpayer has
8 either been issued or received a certificate of completion from another
9 taxpayer under section 27-1419 of the environmental conservation law
10 before June twenty-third, two thousand ten, and, for purposes of comput-
11 ing the tangible property component pursuant to paragraph three of this
12 subdivision with respect to such qualified sites for which the depart-
13 ment has issued a notice to the taxpayer before July first, two thousand
14 fourteen that its request for participation has been accepted under
15 subdivision six of section 27-1407 of the environmental conservation
16 law, or where the taxpayer has either been issued or received a certif-
17 icate of completion from another taxpayer under section 27-1419 of the
18 environmental conservation law before July first, two thousand fourteen,
19 the applicable percentage shall be twelve percent in the case of credits
20 claimed under article nine, nine-A, thirty-two or thirty-three of this
21 chapter, and ten percent in the case of credits claimed under article
22 twenty-two of this chapter, except that where at least fifty percent of
23 the area of the qualified site relating to the credit provided for in
24 this section is located in an environmental zone as defined in paragraph
25 six of subdivision (b) of this section, the applicable percentage shall
26 be increased by an additional eight percent. Provided, however, as
27 afforded in section 27-1419 of the environmental conservation law, if
28 the certificate of completion indicates that the qualified site has been
29 remediated to Track 1 as that term is described in subdivision four of
30 section 27-1415 of the environmental conservation law, the applicable
31 percentage set forth in the first sentence of this paragraph shall be
32 increased by an additional two percent. All other applicable percent-
33 ages are set forth in section 27-1419 of the environmental conservation
34 law.
35 (6) Site preparation costs and on-site groundwater remediation costs
36 paid or incurred by the taxpayer with respect to a qualified site and
37 the cost or other basis for federal income tax purposes of tangible
38 personal property and other tangible property, including buildings and
39 structural components of buildings, which constitute qualified tangible
40 property shall only include costs [paid or] incurred by the taxpayer on
41 or after the date of the brownfield site cleanup agreement executed by
42 the taxpayer and the department of environmental conservation pursuant
43 to section 27-1409 of the environmental conservation law.
44 § 17. Paragraphs 2 and 6 of subdivision (b) of section 21 of the tax
45 law, as amended by section 1 of part H of chapter 577 of the laws of
46 2004, subparagraph (B) and the closing paragraph of paragraph 6 as
47 amended by section 1 of part G of chapter 62 of the laws of 2006, are
48 amended to read as follows:
49 (2) Site preparation costs. The term "site preparation costs" shall
50 mean all amounts properly chargeable to a capital account, (i) which are
51 [paid or] incurred in connection with a site's qualification for a
52 certificate of completion and attributable to activities specified in a
53 remedial work plan approved by the commissioner of environmental conser-
54 vation under section 27-1411 of the environmental conservation law, and
55 (ii) with respect to any qualified site for which the department has
56 issued a notice to the taxpayer before July first, two thousand fourteen
S. 724 12
1 that its request for participation has been accepted under subdivision
2 six of section 27-1407 of the environmental conservation law, or where
3 the taxpayer received a certificate of completion from another taxpayer
4 under section 27-1419 of the environmental conservation law before July
5 first, two thousand fourteen, all other site preparation costs paid or
6 incurred in connection with preparing a site for the erection of a
7 building or a component of a building, or otherwise to establish a site
8 as usable for its industrial, commercial (including the commercial
9 development of residential housing), recreational or conservation
10 purposes. [Site] For purposes of this paragraph, site preparation costs
11 shall include, but not be limited to, the costs of excavation, temporary
12 electric wiring, scaffolding, demolition costs, and the costs of fencing
13 and security facilities. Site preparation costs shall not include the
14 cost of acquiring the site and shall not include amounts included in the
15 cost or other basis for federal income tax purposes of qualified tangi-
16 ble property, as described in paragraph three of this subdivision.
17 (6) Environmental zones (EN-Zones). An "environmental zone" shall mean
18 an area designated as such by the commissioner of economic development.
19 Such areas so designated are areas which are census tracts and block
20 numbering areas which, as of the [two thousand] most recent census,
21 satisfy either of the following criteria:
22 (A) areas that have both:
23 (i) a poverty rate of at least twenty percent for the year to which
24 the data relate; and
25 (ii) an unemployment rate of at least one and one-quarter times the
26 statewide unemployment rate for the year to which the data relate, or;
27 (B) areas that have a poverty rate of at least two times the poverty
28 rate for the county in which the areas are located for the year to which
29 the data relate [provided, however, that a qualified site shall only be
30 deemed to be located in an environmental zone under this subparagraph
31 (B) if such site was the subject of a brownfield site cleanup agreement
32 pursuant to section 27-1409 of the environmental conservation law that
33 was entered into prior to September first, two thousand ten].
34 Such designation shall be made and a list of all such environmental
35 zones shall be established by the commissioner of economic development
36 no later than [December thirty-first, two thousand four provided, howev-
37 er, that a qualified site shall only be deemed to be located in an envi-
38 ronmental zone under subparagraph (B) of this paragraph if such site was
39 the subject of a brownfield site cleanup agreement pursuant to section
40 27-1409 of the environmental conservation law that was entered into
41 prior to September first, two thousand ten] ninety days following the
42 official publication of the most recent census.
43 § 18. Section 171-r of the tax law is amended by adding a new subdivi-
44 sion (e) to read as follows:
45 (e) The commissioner in consultation with the commissioner of environ-
46 mental conservation, shall publish by September thirty-first, two thou-
47 sand fourteen a supplemental brownfield credit report containing the
48 information required by this section about the credits claimed for the
49 years two thousand seven, two thousand nine, and two thousand eleven.
50 § 19. Subdivision 1 of section 970-r of the general municipal law, as
51 amended by section 1 of part F of chapter 577 of the laws of 2004, para-
52 graph a as amended and paragraph h as added by chapter 386 of the laws
53 of 2007 and paragraph e as amended and paragraph i as added by chapter
54 390 of the laws of 2008, is amended to read as follows:
S. 724 13
1 1. Definitions. a. "Applicant" shall mean the municipality, community
2 board and/or community based organization submitting an application in
3 the manner authorized by this section.
4 b. "Brownfield opportunity area" shall mean a study area accepted by
5 the secretary in connection with a funding award made pursuant to this
6 section or a brownfield opportunity area designated by the secretary
7 pursuant to this section.
8 c. "Commissioner" shall mean the commissioner of the department of
9 environmental conservation.
10 [c.] d. "Community based organization" shall mean a not-for-profit
11 corporation exempt from taxation under section 501(c)(3) of the internal
12 revenue code whose stated mission is promoting reuse of brownfield sites
13 within a specified geographic area in which the community based organ-
14 ization is located; which has twenty-five percent or more of its board
15 of directors residing in the community in such area; and represents a
16 community with a demonstrated financial need. "Community based organiza-
17 tion" shall not include any not-for-profit corporation that has caused
18 or contributed to the release or threatened release of a contaminant
19 from or onto the brownfield site, or any not-for-profit corporation that
20 generated, transported, or disposed of, or that arranged for, or caused,
21 the generation, transportation, or disposal of contamination from or
22 onto the brownfield site. This definition shall not apply if more than
23 twenty-five percent of the members, officers or directors of the not-
24 for-profit corporation are or were employed or receiving compensation
25 from any person responsible for a site under title thirteen or title
26 fourteen of article twenty-seven of the environmental conservation law,
27 article twelve of the navigation law or under applicable principles of
28 statutory or common law liability.
29 [d.] e. "Brownfield site" shall have the same meaning as set forth in
30 section 27-1405 of the environmental conservation law.
31 [e.] f. "Department" shall mean the department of state.
32 [f.] g. "Contamination" or "contaminated" shall have the same meaning
33 as provided in section 27-1405 of the environmental conservation law.
34 [g.] h. "Municipality" shall have the same meaning as set forth in
35 subdivision fifteen of section 56-0101 of the environmental conservation
36 law.
37 [h.] i. "Community board" shall have the same meaning as set forth in
38 section twenty-eight hundred of the New York city charter.
39 [i.] j. "Secretary" shall mean the secretary of state.
40 § 20. Paragraph b of subdivision 2 of section 970-r of the general
41 municipal law, as added by section 1 of part F of chapter 1 of the laws
42 of 2003, is amended to read as follows:
43 b. Activities eligible to receive such assistance shall include, but
44 are not limited to, the assembly and development of basic information
45 about:
46 (1) the borders of the [proposed] brownfield opportunity area;
47 (2) the number and size of brownfield sites;
48 (3) current and anticipated uses of the properties in the [proposed]
49 brownfield opportunity area;
50 (4) current and anticipated future conditions of groundwater in the
51 [proposed] brownfield opportunity area;
52 (5) known data about the environmental conditions of the properties in
53 the [proposed] brownfield opportunity area;
54 (6) ownership of the properties in the [proposed] brownfield opportu-
55 nity area; and
S. 724 14
1 (7) preliminary descriptions of possible remediation strategies, reuse
2 opportunities, necessary infrastructure improvements and other public or
3 private measures needed to stimulate investment, promote revitalization,
4 and enhance community health and environmental conditions.
5 § 21. Subdivision 2 of section 970-r of the general municipal law is
6 amended by adding a new paragraph h to read as follows:
7 h. To the extent that there are unexpended funds appropriated to the
8 department of environmental conservation for financial assistance
9 authorized in this subdivision, the commissioner shall allocate such
10 funds to the secretary.
11 § 22. Paragraphs b and d of subdivision 3 of section 970-r of the
12 general municipal law, paragraph b as amended by chapter 390 of the laws
13 of 2008 and paragraph d as added by section 1 of part F of chapter 1 of
14 the laws of 2003, are amended and a new paragraph j is added to read as
15 follows:
16 b. An application for such financial assistance shall include an indi-
17 cation of support from owners of brownfield sites in the proposed brown-
18 field opportunity area. All residents and property owners in the
19 proposed brownfield opportunity area shall receive notice of the appli-
20 cation in such form and manner as the secretary shall prescribe.
21 d. Activities eligible to receive such financial assistance shall
22 include the identification, preparation, creation, development and
23 assembly of information and elements to be included in a nomination for
24 designation of a brownfield opportunity area, including but not limited
25 to:
26 (1) a plan for the redevelopment and revitalization of the brownfield
27 opportunity area, that contains but is not limited to:
28 (i) the borders of the proposed brownfield opportunity area;
29 [(2)] (ii) the location of each known or suspected brownfield site in
30 the proposed brownfield opportunity area;
31 [(3)] (iii) existing detailed assessments of individual brownfield
32 sites and, where the consent of the site owner has been obtained, the
33 need for conducting on-site assessments;
34 (iv) known data about the environmental conditions of properties in
35 the brownfield opportunity area;
36 (v) ownership of the properties in the brownfield opportunity area;
37 (vi) the goals and objectives, both short term and long term, for the
38 economic revitalization of the brownfield opportunity area;
39 (vii) identification of the publicly controlled and developable land
40 and buildings within the brownfield opportunity area which are or could
41 be made available for development; and
42 (viii) the identification of strategic sites within the proposed
43 brownfield opportunity area and the development of strategies for
44 improving the likelihood that such strategic sites are reused or devel-
45 oped consistent with the brownfield opportunity area;
46 [(4)] (2) and implementation strategy that includes but is not limited
47 to:
48 (i) the type of potential developments anticipated for sites within
49 the proposed brownfield opportunity area proposed by either the current
50 or the prospective owners of such sites;
51 [(5)] (ii) local legislative or regulatory action which may be
52 required to implement a plan for the redevelopment of the proposed
53 brownfield opportunity area;
54 [(6)] (iii) priorities for public and private investment in infras-
55 tructure, open space, economic development, housing, or community facil-
56 ities in the proposed brownfield opportunity area, including those areas
S. 724 15
1 that may be eligible for priority or preference in accordance with
2 subdivision five of this section;
3 [(7)] (iv) mapping of current and anticipated uses of the properties
4 and groundwater in the proposed brownfield opportunity area;
5 [(8) existing detailed assessments of individual brownfield sites and,
6 where the consent of the site owner has been obtained, the need for
7 conducting on-site assessments;
8 (9) known data about the environmental conditions of properties in the
9 proposed brownfield opportunity area;
10 (10) ownership of the properties in the proposed brownfield opportu-
11 nity area;] and
12 [(11)] (v) descriptions of possible remediation strategies, brownfield
13 redevelopment, necessary infrastructure improvements and other public or
14 private measures needed to stimulate investment, promote revitalization,
15 and enhance community health and environmental conditions[;
16 (12) the goals and objectives, both short term and long term, for the
17 economic revitalization of the proposed brownfield opportunity area; and
18 (13) the publicly controlled and other developable lands and buildings
19 within the proposed brownfield opportunity area which are or could be
20 made available for residential, industrial and commercial development].
21 j. To the extent that there are unexpended funds appropriated to the
22 department of environmental conservation for financial assistance
23 authorized in this subdivision, the commissioner shall suballocate such
24 funds to the secretary.
25 § 23. Subdivision 4 of section 970-r of the general municipal law, as
26 amended by chapter 390 of the laws of 2008, is amended to read as
27 follows:
28 4. Designation of brownfield opportunity area. a. Upon completion of a
29 nomination for designation of a brownfield opportunity area, it shall be
30 forwarded by the applicant to the secretary, who shall determine whether
31 it is consistent with the provisions of this section. If the secretary
32 determines that the nomination is consistent with the provisions of this
33 section, the brownfield opportunity area shall be designated. If the
34 secretary determines that the nomination is not consistent with the
35 provisions of this section, the secretary shall make recommendations in
36 writing to the applicant of the manner and nature in which the nomi-
37 nation should be amended.
38 b. The secretary shall make the determination regarding whether a
39 qualified site subject to a brownfield site cleanup agreement pursuant
40 to section 27-1409 of the environmental conservation law is consistent
41 with a designated brownfield opportunity area. The secretary shall
42 promulgate regulations to establish the process, criteria and timing it
43 shall apply in making determinations whether a qualified site is
44 consistent with a designated brownfield opportunity area.
45 § 24. Subdivision 5 of section 970-r of the general municipal law, as
46 added by section 1 of part F of chapter 1 of the laws of 2003, is
47 amended to read as follows:
48 5. Priority and preference. The designation of a brownfield opportu-
49 nity area pursuant to this section is intended to serve as a planning
50 tool. It alone shall not impose any new obligations on any property or
51 property owner.
52 a. Upon the award of financial assistance pursuant to this section,
53 the secretary shall notify the division of housing and community
54 renewal, the department of environmental conservation, the department of
55 transportation, the department of parks, recreation and historic preser-
56 vation, and the empire state development corporation of such assistance,
S. 724 16
1 and include in such notification a description of the brownfield oppor-
2 tunity area study area and a request for relevant information concern-
3 ing, without limitation, land uses, capital projects and plans relating
4 to properties or the community within such brownfield opportunity area
5 study area, existing plans and planning documents, demographics, and
6 location, maps and description of existing and proposed public facili-
7 ties and infrastructure.
8 b. Upon the award of financial assistance pursuant to this section,
9 the secretary shall notify relevant federal and local agencies of such
10 assistance, and include in such notification a description of the brown-
11 field opportunity area study area and a request for relevant information
12 concerning, without limitation, land uses, capital projects and plans
13 relating to properties or the community within such brownfield opportu-
14 nity area, existing plans and planning documents, demographics, and
15 location, maps and description of existing and proposed public facili-
16 ties and infrastructure.
17 c. Within six months of an award of financial assistance pursuant to
18 this section, the secretary shall seek cooperation from relevant feder-
19 al, state and local agencies in the gathering of information about
20 resources and/or programs that may be relevant to the brownfield oppor-
21 tunity area study area.
22 d. To the extent authorized by law, projects in brownfield opportunity
23 areas designated pursuant to this section shall receive a priority and
24 preference when considered for financial assistance pursuant to articles
25 fifty-four and fifty-six of the environmental conservation law.
26 e. To the extent authorized by law, projects in brownfield opportunity
27 areas designated pursuant to this section may receive a priority and
28 preference when considered for financial and other assistance pursuant
29 to any other state, federal or local law.
30 f. The secretary shall take such measures as may be necessary to
31 determine the availability of such financial and other assistance and to
32 seek cooperation with other state, federal and local officials in
33 providing a priority and preference to applicants pursuant to this
34 subdivision.
35 g. The secretary shall, in consultation with other state agencies,
36 issue a brownfield opportunity area preference and priority report with-
37 in one year of the effective date of this paragraph and each subsequent
38 year thereafter, identifying funding programs and resources relevant to
39 and utilized in the implementation of brownfield opportunity areas.
40 State agencies shall provide preference and priority for projects built
41 consistent with a designated brownfield opportunity area in funding
42 programs identified in the report, including but not limited to, modify-
43 ing program eligibility and ranking criteria to provide for preference
44 and priority for projects built consistent with a designated brownfield
45 opportunity area.
46 h. For ten years following notification of financial assistance, muni-
47 cipalities, community based organizations and community boards awarded
48 financial assistance pursuant to this section shall submit an annual
49 report to the secretary projecting the funding, and any other resources
50 needed to advance the objectives of their brownfield opportunity area
51 plans.
52 § 25. Subdivision 6 of section 970-r of the general municipal law, as
53 added by section 1 of part F of chapter 1 of the laws of 2003, paragraph
54 a as amended by chapter 386 of the laws of 2007 and paragraph h as
55 amended by section 1 of part F of chapter 577 of the laws of 2004, is
56 amended to read as follows:
S. 724 17
1 6. State assistance for [brownfield site assessments in] implementa-
2 tion strategies for brownfield opportunity areas. a. Within the limits
3 of appropriations therefor, the [commissioner, in consultation with the]
4 secretary [of state,] is authorized to provide, on a competitive basis,
5 financial assistance to municipalities, to community based organiza-
6 tions, to community boards, or to municipalities and community based
7 organizations acting in cooperation to conduct [brownfield site assess-
8 ments] implementation strategies in a brownfield opportunity area
9 [designated pursuant to this section]. Such financial assistance shall
10 not exceed ninety percent of the costs of such brownfield [site assess-
11 ment] opportunity area implementation strategies.
12 b. [Brownfield sites eligible for such assistance must be owned by a
13 municipality, or volunteer as such term is defined in section 27-1405 of
14 the environmental conservation law.
15 c. Brownfield site assessment activities] Implementation strategies
16 eligible for funding include, but are not limited to[,]:
17 (i) testing of properties to determine the nature and extent of the
18 contamination (including soil and groundwater), environmental assess-
19 ments, in conformance with applicable requirements of the commissioner,
20 the development of a proposed remediation strategy to address any iden-
21 tified contamination, in conformance with applicable requirements of the
22 commissioner, and any other activities deemed appropriate by the
23 [commissioner in consultation with the] secretary [of state]. [Any envi-
24 ronmental assessment shall be subject to the review and approval of such
25 commissioner] Brownfield sites eligible for such assistance must be
26 owned by a municipality or volunteer as such term is defined in section
27 27-1405 of the environmental conservation law;
28 (ii) actions to effectuate local land use changes, including zoning
29 and necessary local law amendments identified in the brownfield opportu-
30 nity area;
31 (iii) establishing design standards and design guidelines, including
32 requirements for energy efficiency, green infrastructure and water
33 re-use and other sustainability and green design elements;
34 (iv) the carrying out of activities to market strategic sites in a
35 brownfield opportunity area and other activities to attract developer
36 interest; and
37 (v) carrying out of other pre-development activities to advance the
38 brownfield opportunity area.
39 [d.] c. Applications for such assistance shall be submitted to the
40 [commissioner] secretary in a format, and containing such information,
41 as prescribed by the [commissioner in consultation with the] secretary
42 [of state].
43 [e.] d. Funding preferences shall be given to applications for such
44 assistance that relate to areas having one or more of the following
45 characteristics:
46 (1) areas for which the application is a partnered application by a
47 municipality and a community based organization;
48 (2) areas with concentrations of brownfield sites;
49 (3) areas for which the application demonstrates support from a muni-
50 cipality and a community based organization;
51 (4) areas showing indicators of economic distress including low resi-
52 dent incomes, high unemployment, high commercial vacancy rates,
53 depressed property values; and
54 (5) areas with brownfield sites presenting strategic opportunities to
55 stimulate economic development, community revitalization or the siting
56 of public amenities.
S. 724 18
1 [f.] e. The [commissioner] secretary, upon the receipt of an applica-
2 tion for such assistance from a community based organization not in
3 cooperation with the local government having jurisdiction over the
4 proposed brownfield opportunity area, shall request the municipal
5 government to review and state the municipal government's support or
6 lack of support. The municipal government's statement shall be consid-
7 ered a part of the application.
8 [g.] f. Prior to making an award for assistance, the [commissioner]
9 secretary shall notify the temporary president of the senate and the
10 speaker of the assembly.
11 [h.] g. Following notification to the applicant that assistance has
12 been awarded, and prior to disbursement of funds, a contract shall be
13 executed between the department and the applicant or co-applicants. The
14 [commissioner] secretary shall establish terms and conditions for such
15 contracts as the [commissioner] secretary deems appropriate [in consul-
16 tation with the secretary of state], including provisions to define:
17 applicant's work scope, work schedule, and deliverables; fiscal reports
18 on budgeted and actual use of funds expended; and requirements for
19 submission of a final fiscal report. The contract shall also require the
20 distribution of work products to the department, and, for community
21 based organizations, to the applicant's municipality. Applicants shall
22 be required to make the results publicly available. Such contract shall
23 further include a provision providing that if any responsible party
24 payments become available to the applicant, the amount of such payments
25 attributable to expenses paid by the award shall be paid to the depart-
26 ment by the applicant; provided that the applicant may first apply such
27 responsible party payments towards actual project costs incurred by the
28 applicant.
29 h. To the extent that there are unexpended funds appropriated to the
30 department of environmental conservation for financial assistance
31 authorized in this subdivision, the commissioner shall suballocate such
32 funds to the secretary.
33 § 26. Subdivision 7 of section 970-r of the general municipal law, as
34 amended by chapter 390 of the laws of 2008, is amended to read as
35 follows:
36 7. Amendments to designated area. Any proposed amendment to a brown-
37 field opportunity area designated pursuant to this section shall be
38 proposed to, and reviewed by the secretary[, in the same manner and
39 using the same criteria set forth in this section and applicable to an
40 initial nomination for the designation of a brownfield opportunity
41 area]. The secretary shall promulgate rules that contain criteria and
42 timeframes for review and approval of amendments.
43 § 27. Subdivision 8 of section 970-r of the general municipal law, as
44 added by section 1 of part F of chapter 1 of the laws of 2003, is
45 amended to read as follows:
46 8. Applications. a. All applications for pre-nomination study assist-
47 ance or applications for designation of a brownfield opportunity area
48 shall demonstrate that the following community participation activities
49 have been or will be performed by the applicant:
50 (1) identification of the interested public and preparation of a
51 contact list;
52 (2) identification of major issues of public concern;
53 (3) provision [to] for access to the draft and final application for
54 pre-nomination assistance and brownfield opportunity area designation
55 supporting documents in a manner convenient to the public;
S. 724 19
1 (4) public notice and newspaper notice of (i) the intent of the muni-
2 cipality and/or community based organization to undertake a pre-nomina-
3 tion process or prepare a brownfield opportunity area plan, and (ii) the
4 availability of such application.
5 b. Application for nomination of a brownfield opportunity area shall
6 provide the following minimum community participation activities:
7 (1) a comment period of at least thirty days on a draft application;
8 (2) a public meeting on a brownfield opportunity area draft applica-
9 tion.
10 c. An applicant that has satisfactorily submitted information equiv-
11 alent to a pre-nomination study may forgo a pre-nomination study and is
12 eligible to apply for state assistance for nominations to designate a
13 brownfield opportunity area.
14 d. Applications for pre-nomination or nomination pursuant to this
15 section may be submitted to the secretary at any time during the calen-
16 dar year.
17 § 28. Severability clause. If any clause, sentence, paragraph, subdi-
18 vision, section or part of this act shall be adjudged by any court of
19 competent jurisdiction to be invalid, such judgment shall not affect,
20 impair or invalidate the remainder thereof, but shall be confined in its
21 operation to the clause, sentence, paragraph, subdivision, section or
22 part thereof directly involved in the controversy in which such judgment
23 shall have been rendered. It is hereby declared to be the intent of the
24 legislature that this act would have been enacted even if such invalid
25 provisions had not been included herein.
26 § 29. This act shall take effect immediately.
