Legislative Bill Drafting Commission
                  12334-02-0

     S.        --------
                SENATE
               --------

     IN SENATE--Introduced by Sen

     --read twice and ordered printed,
     and when printed to be committed
     to the Committee on

               -------- A.
               ASSEMBLY
               --------

     IN ASSEMBLY--Introduced by M. of A.

     --read  once  and  referred  to  the
     Committee on

     *BUDGBI*
     (Enacts provisions of law to  imple-
     ment  and  impact upon the appropri-
     ations made in the 2000-2001  trans-
     portation,  economic development and
     environmental budget)

                   --------

     Trans. Econ Dev, Art. VII

     A BUDGET BILL submitted by the  Gov-
     ernor in accordance with Article VII
     of the Constitution

                    AN ACT

     to authorize the dormitory authority
     of  the state of New York to provide
     funding for the  Cornell  university
     theory  center  (A);  to provide for
     the use of utility assessment  funds
     (B);   to  amend  the  environmental
     conservation  law,  in  relation  to
     surf clams and ocean quahogs (C); to
     amend  chapter 1 of the laws of 1997
     amending the environmental conserva-

                                         2                         12334-02-0

     tion   law   relating   to   project
     selections, in relation to extending
     the  effectiveness  of  such chapter
     (D);   to  amend  the  environmental
     conservation law, the civil practice
     law and rules, the general municipal
     law, the navigation law, the  public
     authorities  law,  the public health
     law, the real property law  and  the
     state  finance  law,  in relation to
     the remediation of inactive  hazard-
     ous  waste  disposal  sites  and the
     cleanup  and  removal  of  petroleum
     discharges  and  to  repeal  section
     27-1316 of the environmental conser-
     vation law and section 1389-e of the
     public health law relating  thereto;
     to  amend  chapter 83 of the laws of
     1995 amending the state finance  law
     and  other  laws  relating to bonds,
     notes and revenue,  in  relation  to
     making  permanent certain provisions
     thereof; and to amend the  tax  law,
     in  relation  to  a  tax  credit for
     brownfield  redevelopment  (E);   to
     amend the environmental conservation
     law  and  the  state finance law, in
     relation  to  fishing  and   hunting
     licenses  and  fees therefor; and to
     repeal  certain  provisions  of  the
     environmental    conservation    law
     relating thereto (F); to  amend  the
     real  property  tax law, in relation
     to state  reimbursement  for  forest
     tax  exemptions  (G);  to  amend the
     state finance law and  the  environ-
     mental conservation law, in relation
     to the environmental protection fund
     and   repealing   subdivision  7  of
     section 92-s of  the  state  finance
     law  relating  to the application of
     certain  state  assistance  payments
     (H);  to  amend the emergency tenant
     protection act of nineteen  seventy-
     four,  in relation to the obligation
     of the city of New York to fund  its
     administration  (I);  to provide for
     the  use  of  petroleum   overcharge
     restitution  funds (J); to amend the
     transportation law, in  relation  to
     the  deposit of motor carrier regis-
     tration fees (K); and to  amend  the
     public  authorities  law and chapter
     329 of the laws of 1991 amending the
     state finance  law  and  other  laws

                                         3                         12334-02-0

     relating to the establishment of the
     dedicated  bridge and trust fund, in
     relation to the authorization of the
     state's   five-year   transportation
     plan (L)

       The People of  the  State  of  New
     York,   represented  in  Senate  and
     Assembly, do enact as follows:

                                         4                         12334-02-0

  1    Section  1.  This  act enacts into law major components of legislation

  2  which are necessary to implement the state fiscal plan for the 2000-2001

  3  state fiscal year. Each component is  wholly  contained  within  a  Part

  4  identified  as Parts A through L. The effective date for each particular

  5  provision contained within such Part is set forth in the last section of

  6  such Part. Any provision in any section contained within a Part, includ-

  7  ing the effective date of the Part, which makes reference to  a  section

  8  "of  this  act", when used in connection with that particular component,

  9  shall be deemed to mean and refer to the corresponding  section  of  the

 10  Part  in  which  it  is  found. Section three of this act sets forth the

 11  general effective date of this act.

 12                                   PART A

 13    Section 1. The dormitory authority of the state of New York is author-

 14  ized to enter into an agreement with Cornell university for the  support

 15  of  operation  of  the  parallel  computing supercomputers at the theory

 16  center for supercomputers in connection with the business of the  dormi-

 17  tory authority in an amount not to exceed $1,200,000 over amounts previ-

 18  ously authorized.

 19    § 2. This act shall take effect April 1, 2000.

 20                                   PART B

 21    Section  1.  Expenditures  of  moneys appropriated in a chapter of the

 22  laws of 2000 to the energy research and development authority  from  the

 23  special  revenue funds - other / state operations, miscellaneous special

 24  revenue fund - 339, energy  research  and  planning  account  under  the

                                         5                         12334-02-0

  1  research, development and demonstration and policy and planning programs

  2  for  services  and  expenses  for  the  research, development and demon-

  3  stration and policy and  planning  programs  shall  be  subject  to  the

  4  provisions  of this section.  Notwithstanding the provisions of subdivi-

  5  sion 4-a of section 18-a of the public service law all moneys  committed

  6  or  expended  shall be reimbursed by assessment against gas corporations

  7  and electric corporations as defined in section 2 of the public  service

  8  law,  and  the  total amount which may be charged to any gas corporation

  9  and any electric corporation shall not exceed one cent per one  thousand

 10  cubic  feet  of  gas sold and .010 cent per kilowatt-hour of electricity

 11  sold by such corporations in  their  intrastate  utility  operations  in

 12  calendar  year  1998.  Such  amounts  shall be excluded from the general

 13  assessment provisions of subdivision 2 of section  18-a  of  the  public

 14  service  law,  but  shall  be billed and paid in the manner set forth in

 15  such subdivision and upon receipt shall be paid to the state comptroller

 16  for deposit in the  state  treasury  for  credit  to  the  miscellaneous

 17  special  revenue  fund.  The  director  of  the budget shall not issue a

 18  certificate of approval with respect to the commitment  and  expenditure

 19  of  moneys  hereby  appropriated  until the chair of the authority shall

 20  have submitted, and the director of the budget shall  have  approved,  a

 21  comprehensive  financial  plan  encompassing all moneys available to and

 22  all anticipated commitments and expenditures by the authority  from  any

 23  source  for  the  operations  of  the  authority. Copies of the approved

 24  comprehensive financial plan  shall  be  immediately  submitted  by  the

 25  director  of the budget to the chairs and secretaries of the legislative

 26  fiscal committees.

 27    § 2. This act shall take effect April 1, 2000.

                                         6                         12334-02-0

  1                                   PART C

  2    Section  1.  Subdivision  14  of  section 13-0309 of the environmental

  3  conservation law, as amended by section 5 of part A of chapter 58 of the

  4  laws of 1998, is amended to read as follows:

  5    14. The departmentÕ, until January first, two thousand oneå  shall  be

  6  entitled  to  collect  fifteen  cents   per bushel of surf clams and ten

  7  cents per bushel of ocean quahogs taken from all certified waters to  be

  8  deposited  in  the surf clam/ocean quahog account as provided in section

  9  eighty-three of the state finance law.

 10    § 2. This act shall take effect immediately.

 11                                   PART D

 12    Section 1. Section 8 of chapter 1 of the laws of  1997,  amending  the

 13  environmental  conservation  law  relating  to  project  selections,  is

 14  amended to read as follows:

 15    § 8.  This act shall take effect  immediately  except  that  this  act

 16  shall not apply to such projects which are to be funded under the budget

 17  for  fiscal  year 1997-98.  This act shall expire and be deemed repealed

 18  April 1, Õ2000å 2003 provided, however, that such expiration and  repeal

 19  shall  not  affect  or diminish the authority of any department, agency,

 20  public benefit corporation, or public authority to  contract  for  state

 21  assistance  payments,  and  provided  further  that  such expiration and

 22  repeal shall not affect the validity or effectiveness of any regulations

 23  or guidelines promulgated to implement the Clean  Water/Clean  Air  Bond

 24  Act of 1996.

                                         7                         12334-02-0

  1    §  2.  This  act  shall take effect immediately and shall be deemed to

  2  have been in full force and effect on and after April 1, 2000.

  3                                   PART E

  4    Section  1. Subdivisions 1, 3 and 4 of section 27-1301 of the environ-

  5  mental conservation law, subdivision 1 as amended by chapter 857 of  the

  6  laws  of  1982  and  subdivisions 3 and 4 as added by chapter 282 of the

  7  laws of 1979, are amended to read as follows:

  8    1. "Hazardous waste" means a waste which appears on the list or satis-

  9  fies the characteristics promulgated by  the  commissioner  pursuant  to

 10  section  27-0903 of this Õchapter and, until, but not after, the promul-

 11  gation of such list, a waste or combination of wastes, which because  of

 12  its quantity, concentration, or physical, chemical or infectious charac-

 13  teristics may:

 14    a.  Cause,  or significantly contribute to an increase in mortality or

 15  an  increase  in  serious  irreversible  or  incapacitating   reversible

 16  illness; or

 17    b.  Pose  a substantial present or potential hazard to human health or

 18  the environment when improperly treated, stored,  transported,  disposed

 19  or  otherwise  managedå  article  and any substance which appears on the

 20  list promulgated pursuant to section 37-0103 of this chapter;  provided,

 21  however, that the term "hazardous waste" does not include:

 22    a.  Natural gas, natural gas liquids, liquefied natural gas, synthetic

 23  gas usable for fuel, or mixtures of natural gas and such synthetic  gas;

 24  nor

                                         8                         12334-02-0

  1    b.  The  residue of emissions from the engine exhaust of a motor vehi-

  2  cle, rolling  stock,  aircraft,  vessel,  or  pipeline  pumping  station

  3  engine; nor

  4    c. Source, byproduct, or special nuclear material from a nuclear inci-

  5  dent,  as  those  terms are defined in the Atomic Energy Act of 1954, if

  6  such release is  subject  to  requirements  with  respect  to  financial

  7  protection  established  under  section 170 of such act (42 U.S.C. 2210)

  8  or, for the purpose of section 104 of  the  comprehensive  environmental

  9  response, compensation and liability act of 1980 (42 U.S.C. 9604) or any

 10  other response action, any source, byproduct, or special nuclear materi-

 11  al from any processing site designated under section 102(a)(1) or 302(a)

 12  of  the  Uranium  Mill Tailings Radiation Control Act of 1978 (42 U.S.C.

 13  7912(a)(1) or 7942(a)); nor

 14    d. Petroleum as defined in section  one  hundred  seventy-two  of  the

 15  navigation  law,  even  if appearing on the list promulgated pursuant to

 16  section 37-0103 of this chapter.

 17    3. "Inactive hazardous waste disposal  site  remedial  program"  means

 18  activities  undertaken  to  eliminate, remove, abate, control or monitor

 19  health and/or environmental hazards or potential hazards  in  connection

 20  with  inactive  hazardous waste disposal sites or to treat or dispose of

 21  wastes and waste contaminated materials from such sites  including,  but

 22  not limited to, grading, contouring, trenching, grouting, capping, exca-

 23  vation,   transporting,  incineration,  chemical  treatment,  biological

 24  treatment or construction of leachate collection and  treatment  facili-

 25  ties.    The  department may include institutional controls and/or engi-

 26  neering controls as components of an inactive hazardous  waste  disposal

 27  site  remedial program but only if the owner of such real property annu-

 28  ally submits to the department  a  written  statement  certifying  under

                                         9                         12334-02-0

  1  penalty  of  perjury  that  the  institutional  controls and engineering

  2  controls employed to remediate such contamination are unchanged from the

  3  previous certification and that nothing has occurred that would  consti-

  4  tute  a violation of any of such controls, and gives access to such real

  5  property reasonable under the circumstances to evaluate continued  main-

  6  tenance  of such controls. The department shall establish and maintain a

  7  database with relevant information on such controls and shall make  such

  8  information  available for public inspection at the office of the county

  9  clerk or register for each county and at the office of  the  town  clerk

 10  for each town in Suffolk and Nassau counties.

 11    4.  "Person"  means  an  individual, trust, firm, joint stock company,

 12  corporation, partnership, association, state, municipality,  commission,

 13  political  subdivision  of  a  state,  public benefit corporation or any

 14  interstate body.

 15    a. Such term includes any  person  owning  or  operating  an  inactive

 16  hazardous  waste  disposal  site but does not include a person that is a

 17  lender that, without participating in the management of such site, holds

 18  indicia of ownership primarily to protect the security interest  of  the

 19  person  in such site; nor does it include a person that is a lender that

 20  did not participate in management of such  site  prior  to  foreclosure,

 21  notwithstanding  that the person forecloses on such site and after fore-

 22  closure, sells, re-leases (in the case of a lease finance  transaction),

 23  or  liquidates  such site, maintains business activities, winds up oper-

 24  ations, undertakes in a non-negligent manner remedial actions under  the

 25  direction  of  the  department,  with respect to such site, or takes any

 26  other measure to preserve, protect, or prepare such site prior  to  sale

 27  or  disposition, if the person seeks to sell, re-lease (in the case of a

 28  lease finance transaction), or otherwise divest the person of such  site

                                        10                         12334-02-0

  1  at the earliest practicable commercially reasonable time, on commercial-

  2  ly reasonable terms, taking into account market conditions and legal and

  3  regulatory requirements. For purposes of this paragraph:

  4    (i)  the term "participate in management" means actually participating

  5  in the management or operational affairs of  such  site;  and  does  not

  6  include  merely  having  the  capacity  to influence, or the unexercised

  7  right to control, such site's operations;

  8    (ii) a person that is a lender and that  holds  indicia  of  ownership

  9  primarily  to  protect a security interest in such site shall be consid-

 10  ered to participate in management only if, while the borrower  is  still

 11  in  possession of such site, the person exercises decisionmaking control

 12  over the environmental compliance related to such site,  such  that  the

 13  person has undertaken responsibility for the hazardous waste handling or

 14  disposal practices related to such site; or exercises control at a level

 15  comparable  to  that of a manager of such site, such that the person has

 16  assumed or manifested responsibility for the overall management of  such

 17  site  encompassing  day-to-day  decisionmaking  with respect to environ-

 18  mental compliance; or over all or substantially all of  the  operational

 19  functions  (as distinguished from financial or administrative functions)

 20  of such site other than the function of environmental compliance;

 21    (iii) the term "participate in management" does not include performing

 22  an act or failing to act prior to the time at which a security  interest

 23  is created in such site;

 24    (iv)  the  term "participate in management" does not include holding a

 25  security interest  or  abandoning  or  releasing  a  security  interest;

 26  including  in  the  terms of an extension of credit, or in a contract or

 27  security agreement relating to the extension, a covenant,  warranty,  or

 28  other  term or condition that relates to environmental compliance; moni-

                                        11                         12334-02-0

  1  toring or enforcing the terms and conditions of the extension of  credit

  2  or  security interest; monitoring or undertaking one or more inspections

  3  of such site; requiring a response  action  or  other  lawful  means  of

  4  addressing  the  release  or  threatened release of a hazardous waste in

  5  connection with  such site prior to, during, or on the expiration of the

  6  term of the extension of credit; providing financial or other advice  or

  7  counseling in an effort to mitigate, prevent, or cure default or diminu-

  8  tion  in the value of such site; restructuring, renegotiating, or other-

  9  wise agreeing to alter the terms and  conditions  of  the  extension  of

 10  credit  or  security  interest; exercising forbearance; exercising other

 11  remedies that may be available under applicable law for the breach of  a

 12  term  or  condition of the extension of credit or security agreement; or

 13  conducting in a non-negligent manner a remedial action directly or under

 14  the direction of the department, if the actions do not rise to the level

 15  of participating in management (within the meaning of subparagraphs  (i)

 16  and (ii) of this paragraph);

 17    (v)  the  term  "extension  of credit" includes a lease finance trans-

 18  action in which the lessor does not initially select  such  leased  site

 19  and does not during the lease term control the daily operations or main-

 20  tenance  of  such site; or that  conforms with regulations issued by the

 21  appropriate federal banking agency (as defined in 12 USC  section  1813)

 22  or  the  superintendent  of  banks  or  with  regulations  issued by the

 23  National Credit Union Administrative Board, as appropriate;

 24    (vi) the term "financial or administrative function" includes a  func-

 25  tion  such  as  that  of  a  credit  manager,  accounts payable officer,

 26  accounts receivable officer, personnel manager,  comptroller,  or  chief

 27  financial officer, or a similar function;

                                        12                         12334-02-0

  1    (vii)  the  terms  "foreclosure"  and  "foreclose" mean, respectively,

  2  acquiring and to acquire, such site through purchase  at  sale  under  a

  3  judgment  or  decree,  power of sale, or nonjudicial foreclosure sale; a

  4  deed in lieu of foreclosure, or similar conveyance from  a  trustee;  or

  5  repossession,  if  such  site  was  security  for an extension of credit

  6  previously contracted; conveyance pursuant to  an  extension  of  credit

  7  previously  contracted,  including the termination of a lease agreement;

  8  or any other formal or informal manner by which the person acquires, for

  9  subsequent disposition, title to or possession of such site in order  to

 10  protect the security interest of the person;

 11    (viii)  the  term "lender" means an insured depository institution (as

 12  defined in 12 USC Section 1813); an insured credit union  (as defined in

 13  12 USC section 1752); a bank or association  chartered  under  the  Farm

 14  Credit Act of 1971 (12 U.S.C.  2001 et seq.); a leasing or trust company

 15  that  is  an  affiliate of an insured depository institution; any person

 16  (including a successor or assignee of any such person) that makes a bona

 17  fide extension of credit to or takes or  acquires  a  security  interest

 18  from  a nonaffiliated person; the Federal National Mortgage Association,

 19  the Federal Home Loan Mortgage  Corporation,  the  Federal  Agricultural

 20  Mortgage  Corporation,  or  any  other entity that in a bona fide manner

 21  buys or sells loans or interests in loans;  a  person  that  insures  or

 22  guarantees against a default in the repayment of an extension of credit,

 23  or  acts as a surety with respect to an extension of credit, to a nonaf-

 24  filiated person; and a person that provides  title  insurance  and  that

 25  acquires such site as a result of assignment or conveyance in the course

 26  of underwriting claims and claims settlement;

                                        13                         12334-02-0

  1    (ix)  the term "operational function" includes a function such as that

  2  of a facility or plant  manager,  operations  manager,  chief  operating

  3  officer, or chief executive officer; and

  4    (x)  the  term  "security interest" includes a right under a mortgage,

  5  deed of trust, assignment, judgment lien,  pledge,  security  agreement,

  6  factoring  agreement,  or lease and any other right accruing to a person

  7  to secure the repayment of money, the performance  of  a  duty,  or  any

  8  other obligation by a nonaffiliated person.

  9    b.  Such  term  includes  any  person  owning or operating an inactive

 10  hazardous waste disposal site but does not include the state of New York

 11  or a public corporation which acquired, and thereafter retained  without

 12  participating  in  the  management  of  such  site, ownership or control

 13  involuntarily by virtue of its function as sovereign. Neither the  state

 14  of  New  York  nor any public corporation shall incur under this chapter

 15  any liability as to matters within the jurisdiction of the department as

 16  a result of actions taken in response to an  emergency  created  by  the

 17  release  or  threatened  release  of  hazardous waste by another person,

 18  provided that such actions by the state or public  corporation  did  not

 19  constitute  reckless, willful, wanton or intentional misconduct. As used

 20  in this paragraph:

 21    (i) "public corporation" means a public corporation as defined in  the

 22  general construction law;

 23    (ii)  involuntary acquisition of ownership or control includes, but is

 24  not limited to, the following:

 25    (A) acquisitions by the state or a public corporation in its  capacity

 26  as   sovereign,   including   acquisitions   pursuant   to   abandonment

 27  proceedings, or escheat, or any other circumstance of involuntary acqui-

 28  sition in its capacity as sovereign;

                                        14                         12334-02-0

  1    (B) acquisitions by the state or a public corporation, or  its  agent,

  2  acting as a conservator or receiver pursuant to a clear and direct stat-

  3  utory mandate or regulatory authority;

  4    (C) acquisitions of assets through foreclosure and its equivalents, or

  5  otherwise,  by the state or a public corporation in the course of admin-

  6  istering a loan, loan guarantee or loan insurance program;

  7    (D) acquisitions by the state or  a  public  corporation  pursuant  to

  8  seizure or forfeiture authority; and

  9    (E) acquisitions by the state or a public corporation as the result of

 10  tax delinquency proceedings, provided, that such ownership or control is

 11  not retained primarily for investment purposes;

 12    (iii) "management participation" means that the state or public corpo-

 13  ration  is actually participating  in the management or operation of the

 14  property but does not include the mere capacity to influence, ability to

 15  influence or unexercised right to control the operation  of the  proper-

 16  ty.

 17  Nothing  contained  in this paragraph affects the applicability of para-

 18  graph a of this subdivision in favor of a holder of a security  interest

 19  according to the terms thereof.

 20    c.  Such  term  includes  any  person  owning or operating an inactive

 21  hazardous waste disposal site, including a fiduciary; provided, however,

 22  that such liability on the part of a  fiduciary  shall  not  exceed  the

 23  assets held in the fiduciary capacity if such person is not liable inde-

 24  pendently  of such person's ownership as a fiduciary or actions taken in

 25  a fiduciary capacity including, but not limited to, the fiduciary negli-

 26  gently causing or contributing to the release or threatened  release  of

 27  hazardous waste at such site.

 28    (i) For purposes of this paragraph:

                                        15                         12334-02-0

  1    (A)  the  term  "fiduciary"  means  a person acting for the benefit of

  2  another party as a bona fide trustee;  executor;  administrator;  custo-

  3  dian;  guardian  of estates or guardian ad litem; receiver; conservator;

  4  committee of estates of incapacitated person;  personal  representative;

  5  trustee  (including a successor  to a trustee) under an indenture agree-

  6  ment, trust agreement, lease, or similar financing agreement,  for  debt

  7  securities, certificates of interest or certificates of participation in

  8  debt  securities, or other forms of indebtedness as to which the trustee

  9  is not, in the capacity of trustee, the lender; or representative in any

 10  other capacity that  the  department,  after  providing  public  notice,

 11  determines  to be similar to the various capacities previously described

 12  in this paragraph; and does not include either a person that  is  acting

 13  as  a  fiduciary  with respect to a trust or other fiduciary estate that

 14  was organized for the primary purpose of, or  is  engaged  in,  actively

 15  carrying  on  a  trade  or business for profit unless the trust or other

 16  fiduciary estate was created as part of, or to facilitate, one  or  more

 17  estate  plans  or  because  of  the  incapacity of a natural person or a

 18  person that acquires ownership or control of a property with the  objec-

 19  tive purpose of avoiding liability of the person or any other person.

 20    (B)  the  term  "fiduciary capacity" means the capacity of a person in

 21  holding title to a property, or otherwise having control of or an inter-

 22  est in a property, pursuant to the exercise of the  responsibilities  of

 23  the person as a fiduciary.

 24    (ii)  Nothing  in  this  paragraph affects the rights or immunities or

 25  other defenses that are available under law that  are  applicable  to  a

 26  person  subject  to  this  subdivision;  or  creates any liability for a

 27  person or a private right of action against a  fiduciary  or  any  other

 28  person.

                                        16                         12334-02-0

  1    (iii)  Nothing  in  this  paragraph applies to a person if that person

  2  acts in a capacity other than that of a fiduciary or  in  a  beneficiary

  3  capacity  and  in  that capacity, directly or indirectly benefits from a

  4  trust or fiduciary relationship; or is a  beneficiary  and  a  fiduciary

  5  with  respect  to the same fiduciary estate and as a fiduciary, receives

  6  benefits that exceed customary or  reasonable  compensation,  and  inci-

  7  dental benefits, permitted under other applicable law.

  8    (iv)  This  paragraph  does  not  preclude  a claim under this chapter

  9  against the assets of the estate or trust administered by the fiduciary;

 10  or a nonemployee agent or independent contractor retained by  a  fiduci-

 11  ary.

 12    d.  Such  term  includes  any  person  owning or operating an inactive

 13  hazardous waste  disposal  site,  including  an  industrial  development

 14  authority  created under the public authorities law, other than one that

 15  holds bare legal title to such site; has not participated with any party

 16  responsible under law for the remediation of contamination  in,  on,  or

 17  from  such  site  to  attempt  to  have  such a party avoid its remedial

 18  liability; has not exercised any contractual rights it may have or  had,

 19  if  any,  under  the  lease, guarantee, or any other financing agreement

 20  pursuant to which the  industrial  development  authority  would  assume

 21  control  over  the  actual  operation  of  the  site;  and has not taken

 22  possession or control of the site. Nothing in this paragraph affects the

 23  rights or immunities or other defenses that are available under law that

 24  are applicable to an industrial development authority;  or  creates  any

 25  liability  for  a  person or a private right of action against an indus-

 26  trial development authority or any other person.

                                        17                         12334-02-0

  1    § 2. Subdivision 1 of section 27-1303 of the  environmental  conserva-

  2  tion  law,  as  added  by chapter 282 of the laws of 1979, is amended to

  3  read as follows:

  4    1.    ÕEachå  a.  For a period of one year after the effective date of

  5  this chapter, each county shall, for the purpose  of  locating  inactive

  6  hazardous  waste  disposal  sites  as  that  term was defined on January

  7  first, nineteen hundred ninety-nine, survey its jurisdiction  to  deter-

  8  mine  the  existence  and location of suspected inactive hazardous waste

  9  disposal sites and shallÕ, within four months of the effective  date  of

 10  this  title,å  annually  thereafter  submit  a  report to the department

 11  describing the location of each such suspected site and the reasons  for

 12  such suspicion.

 13    b.  Commencing one year after the effective date of the chapter of the

 14  laws of two thousand which added this paragraph, each county shall,  for

 15  the  purpose of locating inactive hazardous waste disposal sites, survey

 16  its jurisdiction to determine the existence and  location  of  suspected

 17  inactive  hazardous  waste  disposal sites and shall annually thereafter

 18  submit a report to the department describing the location of  each  such

 19  suspected site and the reasons for such suspicion.

 20    §  3.  Paragraph b of subdivision 4 of section 27-1305 of the environ-

 21  mental conservation law, as amended by chapter 857 of the laws  of  1982

 22  and the opening paragraph as amended by chapter 649 of the laws of 1988,

 23  is amended to read as follows:

 24    b.  The  department  shall, as part of the registry, assess and, based

 25  upon new information received, reassess by March  thirty-first  of  each

 26  year,  in  cooperation  with the department of health, the relative need

 27  for action at each site to  remedy  environmental  and  health  problems

 28  resulting from the presence of hazardous wastes at such sites; provided,

                                        18                         12334-02-0

  1  however,  that  if  at  the time of such assessment or reassessment, the

  2  department has not placed a site in classification 1 or 2, as  described

  3  in  subparagraphs  one  and  two of this paragraph, and such site is the

  4  subject  of  a  voluntary  agreement  pursuant to title fourteen of this

  5  article, obligating the person subject to such agreement to, at a  mini-

  6  mum,  eliminate or mitigate all significant threats to the public health

  7  and the environment posed by the hazardous waste pursuant to such agree-

  8  ment, the department shall defer its assessment or  reassessment  during

  9  the period such person is in compliance with the terms of such agreement

 10  and shall assess or reassess such site upon completion of remediation to

 11  the department's satisfaction. In making its assessments, the department

 12  shall place every site in one of the following classifications:

 13    (1)  Causing  or presenting an imminent danger of causing irreversible

 14  or irreparable damage to the  public  health  or  environment--immediate

 15  action required;

 16    (2)  Significant  threat  to  the public health or environment--action

 17  required;

 18    (3) Does not present a significant threat  to  the  public  health  or

 19  environment--action may be deferred;

 20    (4) Site properly closed--requires continued management;

 21    (5)  Site properly closed, no evidence of present or potential adverse

 22  impact--no further action required.

 23    § 4. Paragraph b of subdivision 1 of section 27-1313 of  the  environ-

 24  mental  conservation law is relettered paragraph c and a new paragraph b

 25  is added to read as follows:

 26    b.  The department shall have the authority to require the development

 27  and implementation of a  department-approved  inactive  hazardous  waste

 28  disposal  site  remedial program; provided, however, that the department

                                        19                         12334-02-0

  1  will use the following in determining  and  implementing  such  remedial

  2  program:

  3    (i)  The objective of such remedial program shall be the protection of

  4  public health and the environment, with the minimum objective  being  to

  5  eliminate  or  mitigate all significant threats to public health and the

  6  environment presented by hazardous waste through proper  application  of

  7  scientific  and engineering principles and such remedial program must be

  8  selected upon due consideration of the following factors:

  9    (A) conformance to standards and criteria that are generally  applica-

 10  ble,  consistently  applied, and officially promulgated, that are either

 11  directly applicable, or that are not directly applicable but  are  rele-

 12  vant  and appropriate, unless good cause exists why conformity should be

 13  dispensed with, and with consideration being given  to  guidance  deter-

 14  mined, after the exercise of engineering judgment, to be applicable;

 15    (B) overall protectiveness of public health and the environment;

 16    (C) short-term effectiveness;

 17    (D) long-term effectiveness;

 18    (E)  reduction  of  toxicity,  mobility,  and  volume  with treatment;

 19  addressing a hot spot of hazardous waste that  permanently  and  signif-

 20  icantly reduces the volume, toxicity, and/or mobility of hazardous waste

 21  is  to  be preferred over a method that does not do so. The hierarchy of

 22  remedial technologies shall be as set forth  under  section  27-0105  of

 23  this article;

 24    (F) cost;

 25    (G) implementability;

 26    (H) community acceptance; and

 27    (I) land use: the current, intended, and reasonably anticipated future

 28  land uses for the property and its surroundings, if ascertainable.

                                        20                         12334-02-0

  1    (ii)  Notwithstanding  anything  to the contrary in this paragraph, at

  2  sites listed pursuant to section 27-1305 of this article as class  1  or

  3  2,  there shall be a presumption for soil remediation to soil category 2

  4  for residential purposes pursuant to section 27-1316 of this title where

  5  such  remediation  is  conducted  by  a  person responsible according to

  6  applicable principles of statutory or common law  liability  at  a  site

  7  that is not in active use for industrial or commercial uses and is adja-

  8  cent  to residential uses. This presumption may be overcome by a written

  9  finding by the commissioner after citizen participation consistent  with

 10  this title.

 11    § 5. Paragraph a of subdivision 3 and subdivision 4 of section 27-1313

 12  of  the  environmental conservation law, paragraph a of subdivision 3 as

 13  amended by chapter 857 of the laws of 1982 and subdivision 4 as added by

 14  chapter 282 of the laws of 1979, are amended to read as follows:

 15    a. Whenever the commissioner finds that hazardous wastes at  an  inac-

 16  tive  hazardous  waste  disposal site constitute a significant threat to

 17  the environment, he may: (i) order the owner of  such  site  and/or  any

 18  person  responsible  for  the  disposal of hazardous wastes at such site

 19  Õ(i)å to develop an inactive  hazardous  waste  disposal  site  remedial

 20  program,  subject  to  the approval of the department, at such site, and

 21  Õ(ii)å to implement such program within reasonable time limits specified

 22  in the order; or (ii) develop and implement a remedial program for  such

 23  site after a reasonable, but unsuccessful, attempt to obtain the consent

 24  of  such owner and/or such person to the issuance of an order to develop

 25  and implement such remedial program for such site.

 26    Such remedial program developed and implemented pursuant  to  subpara-

 27  graph  (i)  or  (ii)  of  this  paragraph shall provide for a reasonable

 28  opportunity for submission of written and oral comments regarding, at  a

                                        21                         12334-02-0

  1  minimum,  any  proposed  remedial  program;  and in accordance with such

  2  regulations as it may promulgate, the department may, subject to  appro-

  3  priation  therefor, make grants of up to fifty thousand dollars per site

  4  available to a municipality which is not responsible according to appli-

  5  cable  principles  of  statutory  or  common  law liability, a community

  6  group, and/or such a municipality and a community group  in  partnership

  7  with  each  other,  and which may be affected by a release or threatened

  8  release of hazardous waste disposed at such  site  in  order  to  obtain

  9  technical assistance in interpreting existing information with regard to

 10  the  nature and extent of the contamination at the site and the develop-

 11  ment and implementation of such remedial program. To qualify to  receive

 12  such  assistance, a community group must demonstrate that its membership

 13  represents the interests of the community affected by such  site  and  a

 14  municipality  must  demonstrate  financial  need. The proposed recipient

 15  must also contribute a percentage of the total grant, to  be  determined

 16  by  the department in accordance with such regulations as it may promul-

 17  gate, which may be satisfied through money or the cash value of  donated

 18  supplies  or services. Grants awarded under this section may not be used

 19  for the purpose of collecting field sampling data.   Provided,  however,

 20  that in the event the commissioner of health shall issue an order pursu-

 21  ant  to  subdivision three of section one thousand three hundred eighty-

 22  nine-b of the public health law,  such  order  of  the  commissioner  of

 23  health shall supersede any order issued hereunder.

 24    4.  a. Any order issued pursuant to subdivision three of this section,

 25  other than one issued on consent of the person who  is  the  subject  of

 26  such  order, shall be issued only after notice and the opportunity for a

 27  hearing is provided to persons who may be the subject of such order. The

 28  commissioner shall determine which persons are responsible  pursuant  to

                                        22                         12334-02-0

  1  said  subdivision  according  to  applicable  principles of statutory or

  2  common law liability. Such persons shall be entitled to raise any statu-

  3  tory or common law defense at any such hearing and such  defenses  shall

  4  have  the same force and effect at such hearings as they would have in a

  5  court of law. In the event a hearing is held, no order shall  be  issued

  6  by  the  commissioner  under  subdivision  three of this section until a

  7  final decision has been rendered. Any such  order  shall  be  reviewable

  8  pursuant  to  article  seventy-eight of the civil practice law and rules

  9  within thirty days after service of such  order.  The  commissioner  may

 10  request the participation of the attorney general in such hearings.

 11    b.  There shall be no liability under this section for a person other-

 12  wise liable who can establish by a preponderance of  the  evidence  that

 13  the  significant  threat  to  the  environment attributable to hazardous

 14  waste disposed at an inactive hazardous waste disposal site  was  caused

 15  solely by an act of God; an act of war; or an act or omission of a third

 16  party  other than an employee or agent of such person, or than one whose

 17  act or omission occurs in connection  with  a  contractual  relationship

 18  existing directly or indirectly, with such person (except where the sole

 19  contractual  arrangement  arises  from a published tariff and acceptance

 20  for carriage by a common carrier or rail), if such person establishes by

 21  a preponderance of the evidence that such person exercised due care with

 22  respect to the hazardous waste concerned, taking into consideration  the

 23  characteristics  of such hazardous waste, in light of all relevant facts

 24  and circumstances, and took  precautions  against  foreseeable  acts  or

 25  omissions  of any such third party and the consequences that could fore-

 26  seeably result from such acts or omissions; or any combination of  them.

 27  For  purposes  of  this paragraph, the term, "contractual relationship,"

 28  includes, but is not limited to, land contracts, deeds or other  instru-

                                        23                         12334-02-0

  1  ments  transferring  title  or  possession,  unless the real property on

  2  which the site concerned is located was acquired by  such  person  after

  3  the  disposal  or  placement  of  the hazardous waste on, in, or at such

  4  site,  and  such  person  establishes  one  or more of the circumstances

  5  described in subparagraph (i), (ii) or (iii)  of  this  paragraph  by  a

  6  preponderance of the evidence:

  7    (i) At the time such person acquired the site such person did not know

  8  and  has no reason to know that any hazardous waste which is the subject

  9  of the significant threat determination was disposed of on,  in,  or  at

 10  the  site.  To  establish  that  such person has no reason to know, such

 11  person must have undertaken, at the time of acquisition, all appropriate

 12  inquiry into the previous ownership and uses of the property  consistent

 13  with  good  commercial  or  customary  practice in an effort to minimize

 14  liability. For purposes of  the  preceding  sentence,  the  commissioner

 15  shall  take  into account any specialized knowledge or experience on the

 16  part of such person, the relationship of the purchase price to the value

 17  of the property if uncontaminated, commonly known or  reasonably  ascer-

 18  tainable information about the property, the obviousness of the presence

 19  or  likely presence of contamination at the property, and the ability to

 20  detect such contamination by appropriate inspection; or

 21    (ii) Such person is a government entity which  acquired  the  site  by

 22  escheat, or though any other involuntary transfer or acquisition; or

 23    (iii)  Such  person  acquired  the site by inheritance or bequest, and

 24  that such person exercised due care with respect to the hazardous  waste

 25  concerned, taking into consideration the characteristics of such hazard-

 26  ous  waste,  in  light  of all relevant facts and circumstances and took

 27  precautions against foreseeable acts or  omissions  of  any  such  third

                                        24                         12334-02-0

  1  party  and the consequences that could foreseeably result from such acts

  2  or omissions.

  3    Nothing in this paragraph shall diminish the liability of any previous

  4  owner  or  operator of the site who would otherwise be liable under this

  5  section. Notwithstanding this paragraph, if such person obtained  actual

  6  knowledge  of  the release or threatened release of a hazardous waste at

  7  the site when such person owned the site and  then  subsequently  trans-

  8  ferred  ownership  of the site to another person without disclosing such

  9  knowledge, such person shall be treated as a person responsible for  the

 10  disposal  of hazardous waste at the site and no defense under this para-

 11  graph shall be available to such person. Nothing in this paragraph shall

 12  affect the liability under this section of a person who, by any  act  or

 13  omission,  caused or contributed to the release or threatened release of

 14  a hazardous waste which is the subject of such  proceeding  relating  to

 15  such site.

 16    §  6. Section 27-1313 of the environmental conservation law is amended

 17  by adding three new subdivisions 10, 11 and 12 to read as follows:

 18    10. a. If, after the commissioner makes the finding described in para-

 19  graph a of subdivision three of this section and after expending reason-

 20  able efforts, the department is unable to obtain a voluntary  commitment

 21  by  the  owner  of  an inactive hazardous waste disposal site and/or any

 22  person responsible for the disposal of hazardous wastes at such site (i)

 23  to develop an inactive hazardous waste disposal site  remedial  program,

 24  subject  to the approval of the department, at such site, and/or (ii) to

 25  implement such program within reasonable time limits and undertake  such

 26  development  and/or  implementation,  the  department may undertake such

 27  development or implementation, in which case, subject  to  paragraphs  b

 28  and  c of this subdivision, there is hereby created a right of the state

                                        25                         12334-02-0

  1  to recover in any court of competent jurisdiction from such owner and/or

  2  responsible person an amount equal to all costs, both direct  and  indi-

  3  rect,  respecting  such  site  that the state shall have incurred plus a

  4  penalty  in  an amount no less than one and no more than three times all

  5  such costs, both direct and indirect, the state shall have  incurred  in

  6  carrying out same. The department shall not be entitled to such a penal-

  7  ty  unless  it  proves  by  a  preponderance of the evidence that it has

  8  expended reasonable efforts as set forth in this paragraph. For purposes

  9  of this paragraph, the department has expended "reasonable  efforts"  to

 10  obtain  such  a  voluntary  commitment  if such owner and/or responsible

 11  person is informed in writing of the department's offer to  negotiate  a

 12  voluntary  commitment  and such owner and/or responsible person does not

 13  respond to the department's offer; or responds by refusing to negotiate;

 14  or starts to negotiate and thereafter discontinues same; or acts in  bad

 15  faith  in the negotiation process and continues not to make such commit-

 16  ment after receiving a final written notification  from  the  department

 17  that apprizes such owner and/or responsible person that failure to enter

 18  into the voluntary commitment will result in the state's recovery of all

 19  costs,  both  direct  and  indirect, respecting such site that the state

 20  shall have incurred plus a penalty in an amount up to three  times,  but

 21  no  less  than one times, all costs, both direct and indirect, the state

 22  shall have incurred in carrying out same.

 23    b. Notwithstanding paragraph a of this subdivision, such owner  and/or

 24  responsible person shall only be liable to the state for an amount equal

 25  to  all  costs,  both direct and indirect, the state shall have incurred

 26  respecting such site if such owner and/or responsible person can  estab-

 27  lish  by  a  preponderance of the evidence that for good cause shown, it

                                        26                         12334-02-0

  1  failed and refused to enter into  such  voluntary  commitment  with  the

  2  department.

  3    c.  Two  or  more owners and/or responsible persons described in para-

  4  graph a of subdivision three of  this  section  may  claim  contribution

  5  among  themselves in an action brought in a court of competent jurisdic-

  6  tion, and the amount of contribution to which any of  them  is  entitled

  7  shall  be  equal  to the excess paid by that responsible person over and

  8  above such responsible person's equitable share of costs.  However,  the

  9  amount  of  contribution to which any of them is entitled shall be three

 10  times the excess paid by that responsible person  over  and  above  such

 11  responsible person's equitable share of costs associated with the carry-

 12  ing out of such person's obligations under the voluntary commitment with

 13  the department described in paragraph a of this subdivision if one-third

 14  of  such award shall be paid to the remedial program transfer fund under

 15  section ninety-seven-uuu of the state finance law and  the  court  finds

 16  that:

 17    (i) the contribution defendant is a responsible person for such site;

 18    (ii)  the  contribution  plaintiff  gave  thirty  days  notice  to the

 19  contribution defendant of the plaintiff's intention to seek contribution

 20  in the event that the contribution defendant declined to participate  in

 21  the implementation of the contribution plaintiff's voluntary commitment;

 22    (iii)  the  contribution  defendant  failed or refused to enter into a

 23  settlement agreement with the contribution plaintiff; and

 24    (iv) the contribution plaintiff entered into  a  voluntary  commitment

 25  with the department to remediate the site.

 26    d. A person misidentified by the department as an owner and/or respon-

 27  sible person but which entered into a voluntary commitment, other than a

 28  voluntary  commitment  pursuant  to title fourteen of this article, with

                                        27                         12334-02-0

  1  the department may recover  from  the  remedial  program  transfer  fund

  2  established  by  section  ninety-seven-uuu  of the state finance law the

  3  costs it shall have incurred that are reasonable in light of the  action

  4  agreed to be undertaken.

  5    e. All monies collected by the state pursuant to this section shall be

  6  deposited into the remedial program transfer fund established by section

  7  ninety-seven-uuu of the state finance law.

  8    11.  a. Any person subject to an order issued pursuant to this section

  9  or any person that shall have entered into a  voluntary  agreement  with

 10  the  department under title fourteen of this article may seek in a court

 11  of competent jurisdiction contribution from any other person  who  is  a

 12  person  responsible  for  the disposal of hazardous waste at an inactive

 13  hazardous waste disposal site or at an  affected  site,  as  defined  by

 14  section  27-1401  of  this article, for costs incurred in implementing a

 15  department-approved inactive  hazardous  waste  disposal  site  remedial

 16  program or in implementing a voluntary agreement. Nothing in this subdi-

 17  vision  shall  be  construed to limit, affect, or impair any protections

 18  from or limitations on liability provided by the  department  or  other-

 19  wise.

 20    b.  If the costs of measures undertaken at an inactive hazardous waste

 21  disposal site or at an affected  site  for  the  purpose  of  addressing

 22  hazardous  waste  or petroleum are increased because of design or imple-

 23  mentation considerations or alterations made for the purpose of accommo-

 24  dating, effecting or advancing the redevelopment or reuse of such  site,

 25  the  amount  of such increase shall not be recoverable under paragraph a

 26  of this subdivision. Examples of design or implementation considerations

 27  or alterations that may  be  made  for  the  purpose  of  accommodating,

 28  effecting or advancing the redevelopment or reuse of a site include, but

                                        28                         12334-02-0

  1  are  not limited to, such measures as altering the type, amount, quality

  2  or aesthetic character of materials used in construction from the  type,

  3  amount,  quality  or aesthetic character of materials required to imple-

  4  ment a remedial program or voluntary agreement at such site.

  5    c.  Any  other provision of this subdivision notwithstanding, no costs

  6  will be deemed unrecoverable  under  paragraph  a  of  this  subdivision

  7  because  they  were expended to achieve a higher level of remediation at

  8  an inactive hazardous waste disposal site  or  affected  site  than  the

  9  level required by the department.

 10    d.  In  any action or proceeding brought pursuant to this subdivision,

 11  the defendant shall be entitled to raise any  statutory  or  common  law

 12  defense that he may have.

 13    e.  In resolving contribution claims brought pursuant to this subdivi-

 14  sion, the court may allocate costs among liable parties using such equi-

 15  table factors as the court determines are appropriate.

 16    f. No action for  contribution  pursuant  to  this  provision  may  be

 17  commenced more than six years after the later of:

 18    (i)  the date of judgment in any action under any law, state or feder-

 19  al, respecting the costs that are the subject of the claim for  contrib-

 20  ution; or

 21    (ii)  the date of the issuance of an order or agreement by the depart-

 22  ment respecting the costs that are the subject of the claim for contrib-

 23  ution or respecting activities the conduct of which caused the  expendi-

 24  ture of the costs that are the subject of the claim for contribution.

 25    g. The court shall enter a declaratory judgment on liability for costs

 26  that  will  be  binding  on  any subsequent action or actions to recover

 27  costs incurred in implementing a department-approved inactive  hazardous

                                        29                         12334-02-0

  1  waste  disposal  site  remedial  program, or in implementing a voluntary

  2  agreement under title fourteen of this article.

  3    h.  Nothing  contained  in this subdivision shall affect any rights to

  4  recovery of costs to which any party may  be  entitled  by  contract  or

  5  otherwise under law.

  6    12. a. Definition. For purposes of this subdivision, the term "natural

  7  resources"  means land, fish, wildlife, biota, air, water, ground water,

  8  drinking water supplies, and other such resources belonging to,  managed

  9  by, controlled by, or pertaining to the state of New York.

 10    b.  Liability. Any owner of an inactive hazardous waste disposal site,

 11  and any person responsible for the disposal of hazardous wastes at  such

 12  site, who shall be liable according to applicable principles of statuto-

 13  ry  or  common  law liability and subject to any statutory or common law

 14  defense, shall be liable to the state of New York for damages for injury

 15  to, destruction of, loss of,  or  loss  of  use  of  natural  resources,

 16  including  the  reasonable  costs of assessing such injury, destruction,

 17  loss, or loss of use resulting from the disposal of hazardous  waste  at

 18  such  inactive hazardous waste disposal site. Provided, that there shall

 19  be no such liability where the owner or other person responsible  demon-

 20  strates  that  the injury to, destruction of, loss of, or loss of use of

 21  natural resources complained of were specifically identified as an irre-

 22  versible and irretrievable commitment of natural resources in  an  envi-

 23  ronmental  impact statement, or other comparable environmental analysis,

 24  and the decision to grant a permit or license authorizes such commitment

 25  of natural resources, and the site was otherwise  operating  within  the

 26  terms of its permit or license.

 27    c.  Damages. The attorney general shall, at the request of the commis-

 28  sioner as trustee of such natural resources, commence a civil action  to

                                        30                         12334-02-0

  1  recover  such  damages on behalf of the people of the state of New York.

  2  All damages recovered in any such action  shall  be  paid  over  to  the

  3  commissioner  for deposit to the credit of the remedial program transfer

  4  fund  established  pursuant  to  section  ninety-seven-uuu  of the state

  5  finance law.   Any  assessment  of  damages  to  natural  resources  for

  6  purposes of this subdivision made by the commissioner in accordance with

  7  such  regulations  as  may  be promulgated under section 27-1315 of this

  8  title shall have the force and effect of  a  rebuttable  presumption  on

  9  behalf of the commissioner in any such action.

 10    §  7.  The  environmental  conservation law is amended by adding a new

 11  section 27-1314 to read as follows:

 12  § 27-1314. Covenant not to sue.

 13    1. After the successful implementation of an order  on  consent  which

 14  provides for the development and implementation of an inactive hazardous

 15  waste  disposal  site  remedial program, the person subject to the order

 16  shall submit to the department a written certification  prepared  by  an

 17  individual  licensed  or otherwise authorized in accordance with article

 18  one hundred forty-five of the education law to practice  the  profession

 19  of  engineering  who  shall have been in charge of the implementation of

 20  such remediation undertaken pursuant to such order substantiating  that,

 21  at  a  minimum, such remedial activities satisfied the remedial require-

 22  ments for the site.

 23    2. Upon the department's receipt of such certification, the department

 24  shall review the final engineering report and the data submitted  pursu-

 25  ant to the order as well as any other relevant information regarding the

 26  site.  The  department  shall  provide the person, upon its satisfaction

 27  that the remedial requirements for the site have been achieved,  with  a

 28  covenant  not to sue, binding upon the state, for any liability, includ-

                                        31                         12334-02-0

  1  ing any future liability or claim for the further remediation of hazard-

  2  ous waste  at or from the site that was the subject of such order except

  3  that a person responsible for the site's remediation as of the effective

  4  date of the consent order pursuant to applicable principles of statutory

  5  and  common  law  liability  shall  not  receive  a  release for natural

  6  resource damages. Additionally, the state nonetheless shall reserve  all

  7  of  its  rights  concerning,  and such covenant shall not extend to, any

  8  further investigation or remedial action the department deems necessary,

  9  as a result of:

 10    a. a failure to comply with the terms and conditions of the order;

 11    b. a fraudulent demonstration that the cleanup  levels  identified  in

 12  the order were reached;

 13    c.  a  release  or  threatened  release  at the site subsequent to the

 14  effective date of the order;

 15    d. a change in the site's use subsequent to the effective date of  the

 16  order  to a use requiring a lower level of residual contamination unless

 17  additional remedial activities are undertaken which shall meet the stan-

 18  dard for protection of public health and the environment that applies to

 19  remedial actions for such use under this title;

 20    e. information received, in whole or in part, after  the  department's

 21  execution of such order, which indicates that the remediation performed,

 22  or  to be performed, under such order will not be, or is not, protective

 23  of public health or the environment for such use of the site; or

 24    f. the department's determination that the remedy implemented  is  not

 25  protective of public health or the environment.

 26    3. The reservation contained in paragraph d of subdivision two of this

 27  section shall not be reserved in the event that a person remediates soil

                                        32                         12334-02-0

  1  contamination to soil category 1, as that term is described in paragraph

  2  a of subdivision three of section 27-1316 of this title.

  3    4. The reservation contained in paragraph f of subdivision two of this

  4  section  shall  not  be reserved for a person who is not responsible for

  5  the remediation of the site pursuant to applicable principles of  statu-

  6  tory  or  common  law  liability, or who is liable solely as a result of

  7  ownership or operation of the affected site subsequent to  the  disposal

  8  of hazardous waste or the discharge of petroleum, in the event that such

  9  person remediates soil contamination to soil category 1, as that term is

 10  described in paragraph a of subdivision three of section 27-1316 of this

 11  title.

 12    5.  The  covenant  not  to  sue  issued pursuant to this section shall

 13  extend to the person's successors  or  assigns  through  acquisition  of

 14  title  to  the  site  to  which the covenant applies and to a person who

 15  develops or otherwise occupies the site, provided that such persons  act

 16  in  good  faith  to adhere to the requirements of such order on consent.

 17  However, such covenant does not extend, and cannot be transferred, to  a

 18  person  who is responsible as of the date of the issuance of an order on

 19  consent for the remediation of hazardous waste at the site according  to

 20  applicable  principles  of statutory or common law liability unless that

 21  person was party to the order on which such covenant was based. A notice

 22  of the order containing such covenant shall be recorded and indexed as a

 23  declaration of covenant in the office of the recording officer  for  the

 24  county  or  counties where such site is located in the manner prescribed

 25  by article nine of the real property law within thirty days  of  signing

 26  the  order  if the person is an owner or within thirty days of acquiring

 27  title to the site if the person is a prospective purchaser.

                                        33                         12334-02-0

  1    6. The provisions of this title shall not affect an action or a claim,

  2  including a claim for contribution, that  a  person  who  implements  or

  3  completes an order on consent executed by such person and the department

  4  providing  for the development and implementation of an inactive hazard-

  5  ous  waste  disposal site remedial program pursuant to this title has or

  6  may have against a third party.

  7    7. Nothing in this subdivision shall be construed to affect either the

  8  liability of any person with respect to any costs, damages, or  investi-

  9  gative or remedial activities that are not included in the order; or the

 10  department's  authority  to maintain an action or proceeding against any

 11  person who is not subject to the order.

 12    8. A person who has settled its liability to the department under this

 13  subdivision shall not be liable for claims  for  contribution  regarding

 14  matters  addressed  in the order. Such settlement does not discharge any

 15  of the persons responsible under law to investigate  and  remediate  the

 16  hazardous  waste  unless its terms so provide, but it reduces the poten-

 17  tial liability of the others by the amount of the settlement.

 18    9. Nothing in this  subdivision  shall  be  construed  to  affect  the

 19  authority  of  the  department  to  reach  settlement with other persons

 20  consistent with its authority under applicable law.

 21    § 8. Section 27-1315 of the environmental conservation law, as amended

 22  by chapter 857 of the laws of 1982, is amended to read as follows:

 23  § 27-1315. Rules and regulations.

 24    1. The commissioner shall have the power to promulgate rules and regu-

 25  lations necessary and appropriate to carry  out  the  purposes  of  this

 26  title. Any such regulations shall include provisions which establish the

 27  procedures for a hearing pursuant to subdivision four of section 27-1313

 28  of this Õarticleå title.  Any such provisions shall ensure a division of

                                        34                         12334-02-0

  1  functions  between  the commissioner, the staff who present the case and

  2  any hearing officers appointed. In addition, any such regulations  shall

  3  set  forth  findings  to be based on a factual record which must be made

  4  before  the  commissioner  determines  that  a significant threat to the

  5  environment exists. Rules and regulations promulgated pursuant  to  this

  6  title  shall  be subject to the approval of a board which shall be known

  7  as the inactive hazardous waste disposal site  regulation  review  board

  8  which  shall  have  the  same members, rules and procedures as the state

  9  environmental board.

 10    2. Such rules and regulations of the department as shall be in  effect

 11  on  the  effective date of the chapter of the laws of two thousand which

 12  added this subdivision that shall have been promulgated to carry out the

 13  purposes of this title shall be deemed to be revised, as of  the  effec-

 14  tive  date  of  the chapter of the laws of two thousand which added this

 15  subdivision, to include  the  definition  of  "hazardous  waste"  as  it

 16  appears in section 27-1301 of this title.

 17    § 9. Section 27-1316 of the environmental conservation law is REPEALED

 18  and a new section 27-1316 is added to read as follows:

 19  § 27-1316. Soil cleanup levels.

 20    1.  The  commissioner  shall establish a technical advisory panel. The

 21  membership of the panel shall be appointed by the commissioner  and  the

 22  commissioner  of health and shall include representation from the public

 23  health advocacy community, the  environmental  advocacy  community,  the

 24  business  community, municipalities, and others as deemed appropriate by

 25  the commissioner. The commissioner and the commissioner of  the  depart-

 26  ment  of  health shall be co-chairs of such panel. None of the appointed

 27  members shall be officers or employees of any state department or  agen-

 28  cy.  Each member shall have experience in risk assessment methodologies,

                                        35                         12334-02-0

  1  remediation technologies, or other appropriate scientific, technical, or

  2  other relevant expertise in regard to the  remediation  of  contaminated

  3  sites. All meetings of the technical advisory panel shall be open to the

  4  public.  The  recommendations  of  the technical advisory panel shall be

  5  subject to public comment.

  6    2. The panel shall provide advice on the development  of,  and  recom-

  7  mend,  soil  clean-up levels which provide for a multi-category approach

  8  for the remediation of soil contamination, as set forth  in  subdivision

  9  three of this section, at inactive hazardous waste disposal sites, sites

 10  subject  to  a voluntary agreement under title fourteen of this article,

 11  and cleanup and removal actions under article twelve of  the  navigation

 12  law.

 13    3.  In  the development of soil cleanup levels, the technical advisory

 14  panel shall consider the following as the basis  for  the  soil  cleanup

 15  levels:  the  cancer  and  non-cancer  human  health effects; background

 16  concentrations; exposure to the same contaminant from other routes;  the

 17  strength  of the toxicological data base; sensitive populations, includ-

 18  ing children; protection of groundwater for its classified use,  surface

 19  water,   air  (including  indoor  air);  and  protection  of  ecological

 20  resources, including fish and  wildlife.  In  addition,  the  cumulative

 21  effects  of  contaminants and the possibility that some contaminants may

 22  act through similar toxicological mechanisms shall be considered.  Where

 23  toxicological,  exposure  or other pertinent data are inadequate or non-

 24  existent for a specific chemical, the  experiences  under  the  existing

 25  state  remedial programs shall be considered. The goals for the level of

 26  risk associated with soil cleanup levels for individual contaminants are

 27  an excess cancer risk of one in one million for carcinogenic end  points

                                        36                         12334-02-0

  1  and  a hazard index of one for non-cancer end points for each soil cate-

  2  gory.

  3    a.  Soil  category 1: cleanup levels that will be protective of public

  4  health and the environment that would allow the site to be used for  any

  5  purpose  without  restriction  and  without  reliance  on  institutional

  6  controls or engineering controls.

  7    b. Soil category 2: cleanup levels that will be protective  of  public

  8  health  and the environment for the site's current, intended, or reason-

  9  ably anticipated residential, commercial, or  industrial  use  and  with

 10  consideration  of  use of institutional or engineering controls to reach

 11  such levels.

 12    c. Soil category 3: a process to determine cleanup levels that will be

 13  protective of public health and the environment using site specific data

 14  for the site's current, intended or reasonably anticipated  residential,

 15  commercial, or industrial use.

 16    4. The technical advisory panel shall submit its recommendations with-

 17  in  eighteen months from the date of the first meeting of such technical

 18  advisory panel.

 19    5. After the close of the public comment period on the recommendations

 20  of the technical advisory panel, the commissioner and  the  commissioner

 21  of health, where appropriate, shall promulgate regulations setting forth

 22  the  soil cleanup levels, taking into consideration such recommendations

 23  and any other information deemed relevant  by  the  department  and  the

 24  department of health.

 25    6.  The  department shall determine cleanup levels for contaminants in

 26  the soil using site specific data  until  the  commissioner  promulgates

 27  rules  and regulations pursuant to this section and thereafter shall use

                                        37                         12334-02-0

  1  the soil cleanup levels set forth in such rules and regulations, as  may

  2  be amended.

  3    §  10.  Article 27 of the environmental conservation law is amended by

  4  adding a new title 14 to read as follows:

  5                                  TITLE 14

  6                          VOLUNTARY REMEDIATION ACT

  7  Section 27-1401. Definitions.

  8          27-1403. Request for participation.

  9          27-1405. Determination of eligibility.

 10          27-1407. Voluntary agreement requirements.

 11          27-1409. Citizen participation/public notification.

 12          27-1411. Covenant not to sue.

 13          27-1413. Remediation certificate.

 14          27-1415. Payment of state costs.

 15  § 27-1401. Definitions.

 16    1. "Affected person" means a person whose request  to  participate  in

 17  the  voluntary remediation program under this title has been accepted by

 18  the department for consideration.

 19    2. "Affected site" means an area or structure  where  hazardous  waste

 20  and/or  petroleum  has been deposited, disposed of, placed, or otherwise

 21  come to be located that is not a site on the  National  Priorities  List

 22  established  under  authority  of  42  U.S.C.A.  �,  nor  subject to

 23  enforcement action, nor subject to a permit issued  pursuant  to  titles

 24  seven or nine of this article.

 25    3. "Enforcement action" means:

 26    a.  action under this article, under article seventy-one of this chap-

 27  ter, under article twelve of the navigation law, or under  the  criminal

 28  procedure  law,  the  purpose of which includes requiring the subject of

                                        38                         12334-02-0

  1  such action to remove or remediate  hazardous  waste  or  petroleum.  An

  2  enforcement action as defined in this paragraph shall commence against a

  3  particular  person upon commencement of enforcement under article seven-

  4  ty-one  of this chapter, or upon issuance of an accusatory instrument as

  5  that term is defined in section 1.20 of the criminal procedure law; or

  6    b. action under federal law the purpose of  which  includes  requiring

  7  the  subject  of  such  action to remove or remediate hazardous waste or

  8  petroleum. An enforcement action as  defined  in  this  paragraph  shall

  9  commence  against  a particular person upon issuance of any notification

 10  that requires the removal or remediation of hazardous waste or petroleum

 11  that is issued pursuant to federal law.

 12    4. "Hazardous waste" means  hazardous  waste  as  defined  in  section

 13  27-1301 of this article.

 14    5.  "Person"  means  an  individual, trust, firm, joint stock company,

 15  corporation, partnership, association, state, municipality,  commission,

 16  political  subdivision  of  a  state,  public benefit corporation or any

 17  interstate body.

 18    6. "Petroleum" means petroleum  as  defined  in  section  one  hundred

 19  seventy-two of the navigation law, even if appearing on the list promul-

 20  gated pursuant to section 37-0103 of this chapter.

 21    7.  "Preliminary  environmental  assessment"  means  a  written report

 22  submitted as part of a request to participate in the  voluntary  remedi-

 23  ation program within the department under this title which shall contain

 24  the  information described in subdivision two of section 27-1403 of this

 25  title.

 26    8. "Proposed voluntary  agreement"  means  an  agreement  executed  in

 27  accordance  with this title by an affected person but not by the depart-

 28  ment concerning the remediation of an affected site.

                                        39                         12334-02-0

  1    9. "Remediation" or "remedial action" means actions taken to address a

  2  release or threatened release of hazardous waste into  the  environment,

  3  and  may include the investigation of such release or threatened release

  4  in order to determine how such release or threatened release  should  be

  5  addressed.

  6    10.  "State costs" means all those costs, obligations, commitments, or

  7  undertakings associated with the administration or  oversight  responsi-

  8  bilities of the department, the department of health, or any other state

  9  agency attributable to carrying out the investigation and/or remediation

 10  of  an  affected  site under a voluntary agreement, as described in this

 11  title. Such expenses shall include administrative  expenses  (wages  and

 12  salaries), fringe benefits, overhead, supplies and materials, equipment,

 13  travel and utilities.

 14    11.  "Voluntary  agreement"  means an agreement executed in accordance

 15  with this title by an affected person and the department concerning  the

 16  investigation  of  the  nature  and  extent  of  actual,  threatened, or

 17  suspected hazardous  waste  and/or  petroleum  present  at  or  from  an

 18  affected  site;  an  agreement concerning the remediation of an affected

 19  site; or an agreement concerning both the investigation and  remediation

 20  of an affected site.

 21  § 27-1403. Request for participation.

 22    1.  A  person  who desires to participate in the voluntary remediation

 23  program under this title concerning a  particular  affected  site  shall

 24  submit a request to the department.

 25    2.  Such  request  shall  be  on a form provided by the department and

 26  shall contain  general  information  concerning  such  person  and  such

 27  person's  relation  to  the affected site, a description of the affected

                                        40                         12334-02-0

  1  site, and a copy of a preliminary  environmental  assessment  concerning

  2  such affected site that shall include, but not be limited to:

  3    a.  a  review  of  any  relevant prior environmental studies, property

  4  assessments, or geological studies of such affected site;

  5    b. a legal description of such affected site;

  6    c. the physical characteristics of such affected site;

  7    d. the compliance history of any operations at such affected  site  to

  8  the extent the history is known by such person;

  9    e.  a  review of any existing aerial photographs of such affected site

 10  that may indicate its prior uses;

 11    f. if possible, interviews with any employee who may have knowledge of

 12  environmental conditions at such affected site;

 13    g. an inspection of such affected site  sufficient  to  evaluate  site

 14  conditions and remedial needs;

 15    h.  an  identification  of the past, current, intended, and reasonably

 16  anticipated future uses of such affected site; and

 17    i. any other relevant information concerning the potential  for  human

 18  and environmental exposures to contamination at such affected site.

 19    3. The department shall determine whether such affected site should be

 20  included  in  the registry of inactive hazardous waste disposal sites as

 21  required by section 27-1305 of this article. If  the  department  deter-

 22  mines  that such affected site is eligible for inclusion in the registry

 23  as a classification 1 or 2 site, and if the affected person  commits  to

 24  enter  into  a voluntary agreement pursuant to this title which requires

 25  the elimination or mitigation  of  all  significant  threats  to  public

 26  health  and the environment posed by the hazardous waste, the department

 27  shall defer including the  affected  site  in  the  registry  and  shall

                                        41                         12334-02-0

  1  continue  to  defer  such  site for so long as the affected person is in

  2  compliance with the terms of a voluntary agreement.

  3  § 27-1405. Determination of eligibility.

  4    1.  The  department  shall  use  its best efforts to notify the person

  5  requesting participation in the  voluntary  remediation  program  within

  6  sixty  days  after receiving such request pursuant to section 27-1403 of

  7  this title that such request is either accepted or rejected.

  8    2. The department shall reject such request if:

  9    a. the request is submitted by the owner and/or any person responsible

 10  for the disposal of hazardous waste according to  applicable  principles

 11  of statutory or common law liability at an affected site which is listed

 12  in the registry of inactive hazardous waste disposal sites under section

 13  27-1305  of  this  article  and  given  a classification as described in

 14  subparagraph one or two of paragraph  b  of  subdivision  four  of  such

 15  section;

 16    b.  the  request does not contain the information required pursuant to

 17  subdivision two of section 27-1403 of this title in sufficient detail to

 18  assess the conditions of the affected site;

 19    c. the department determines that there is an  enforcement  action  as

 20  defined  under  this title pending against the person requesting partic-

 21  ipation in the voluntary remediation program; or

 22    d. the department, based on the preliminary  environmental  assessment

 23  and/or  other  information the department possesses, determines that the

 24  request is for a site which does not meet the  definition  of  "affected

 25  site" pursuant to section 27-1401 of this title.

 26    3.  If such request is rejected pursuant to paragraph b of subdivision

 27  two of this section, the department shall provide to the  person  making

                                        42                         12334-02-0

  1  such  request, in writing, a list of the additional information required

  2  for the department to determine eligibility under this title.

  3  § 27-1407. Voluntary agreement requirements.

  4    1.  a.  The  voluntary agreement shall include, but not be limited to,

  5  the following provisions:

  6    (i) one  requiring  such  affected  person  to  pay  for  state  costs

  7  provided,  however,  that  with  respect  to  an affected site which the

  8  department has determined constitutes a  significant  threat  to  public

  9  health  or  the  environment,  the  department  may  include a provision

 10  requiring the affected person to provide a technical  assistance  grant,

 11  as described in subdivision three of section 27-1313 of this article and

 12  under  the conditions described therein, to an eligible party in accord-

 13  ance with procedures established under such program, with  the  cost  of

 14  such a grant serving as an offset against such state costs;

 15    (ii) one resolving disputes arising from the evaluation, analysis, and

 16  oversight  of  the  implementation of the workplan as described in para-

 17  graph b of this subdivision;

 18    (iii) one requiring an indemnification provision which holds the state

 19  harmless from any claim, suit,  action,  and  cost  of  every  name  and

 20  description  arising  out  of  or  resulting  from  the  fulfillment  or

 21  attempted fulfillment of the agreement except for those  claims,  suits,

 22  actions,  and  costs  arising  from the state's negligence or willful or

 23  intentional misconduct;

 24    (iv) one authorizing the department to terminate a voluntary agreement

 25  at any time during the implementation of such agreement if the  affected

 26  person  implementing  such  agreement fails to comply substantially with

 27  such agreement's terms and conditions;

                                        43                         12334-02-0

  1    (v) one exempting such affected person from the requirement to  obtain

  2  any  permit  issuable  by the department for any activity satisfying the

  3  following criteria:

  4    (1)  the  activity  is  conducted on the affected site or on different

  5  premises that are under common control or are  contiguous  to  or  phys-

  6  ically  connected with the affected site and the activity manages exclu-

  7  sively hazardous waste or petroleum from such affected site,

  8    (2) the activity  satisfies  all  substantive  technical  requirements

  9  applicable to like activity conducted pursuant to a permit as determined

 10  by the department, and

 11    (3)  the  activity  is  a component of the remediation conducted under

 12  such voluntary remediation agreement;

 13    (vi) one stating that the department shall not consider such  affected

 14  person  an operator of such affected site based solely upon execution or

 15  implementation of such agreement for purposes of remediation  liability;

 16  and

 17    (vii)  the  inclusion  of other conditions considered necessary by the

 18  department or the affected person concerning the effective and efficient

 19  implementation of this title, and, where the affected person is  respon-

 20  sible  for the disposal of hazardous waste or the discharge of petroleum

 21  according to applicable principles of statutory or common law liability,

 22  unless such liability arises solely from ownership or operation  of  the

 23  affected  site  subsequent  to  the  disposal  of hazardous waste or the

 24  discharge of petroleum, the department shall include provisions relating

 25  to recovery of state costs incurred before the effective  date  of  such

 26  voluntary agreement.

 27    b. The proposed voluntary agreement shall also contain a workplan that

 28  shall include, but not be limited to, the following requirements:

                                        44                         12334-02-0

  1    (i)  a  work  plan  for  the  investigation of the affected site shall

  2  provide for the investigation and characterization  of  the  nature  and

  3  extent  of  the contamination within the boundaries of the real property

  4  where the contamination was released  into  the  environment,  provided,

  5  however, that an affected person that is responsible for the disposal of

  6  hazardous  waste  or the discharge of petroleum under applicable princi-

  7  ples of statutory or common law liability, unless such liability  arises

  8  solely  from  ownership  or operation of the affected site subsequent to

  9  the disposal of hazardous waste or the  discharge  of  petroleum,  shall

 10  also  be  required to investigate and characterize the nature and extent

 11  of contamination emanating from such real property. An  affected  person

 12  not  responsible for the disposal of hazardous waste or the discharge of

 13  petroleum under applicable principles of statutory or common law liabil-

 14  ity, or a person that is liable solely as a result of ownership or oper-

 15  ation of the affected site subsequent to the disposal of hazardous waste

 16  or the discharge of  petroleum,  must  perform  an  exposure  assessment

 17  consisting of an evaluation of the pathways by which a receptor could be

 18  exposed  to such contamination, in order to determine the risk to public

 19  health and the environment from any contamination  emanating  from  such

 20  real property;

 21    (ii)  a  work  plan  for  the  remediation  of the affected site shall

 22  provide for the development and implementation of a remedial program for

 23  such contamination within the boundaries of such affected site, provided

 24  however, that an affected person that is responsible for the disposal of

 25  hazardous waste or the discharge of petroleum under  applicable  princi-

 26  ples  of  statutory  or  common law liability, except an affected person

 27  whose liability  arises  solely  from  ownership  or  operation  of  the

 28  affected  site  subsequent  to  the  disposal  of hazardous waste or the

                                        45                         12334-02-0

  1  discharge of petroleum, shall also be required to provide in such  work-

  2  plan  for  the  development and implementation of a remedial program for

  3  contamination related to the affected site but located outside the boun-

  4  daries  of the affected site. The objective of any such remedial program

  5  shall be the protection of public health and the environment,  with  the

  6  minimum objective being to eliminate or mitigate all significant threats

  7  to public health and the environment presented by the hazardous waste or

  8  petroleum through proper application of scientific and engineering prin-

  9  ciples and such remedial program must be selected upon due consideration

 10  of the evaluation factors set forth in paragraph b of subdivision one of

 11  section  27-1313 of this article. The work plan must contain an analysis

 12  that such proposed remedy was assessed using  such  evaluation  factors.

 13  The  workplan  must  provide  that the soil cleanup levels be consistent

 14  with the soil cleanup levels set forth  in  rules  and  regulations,  as

 15  amended, promulgated pursuant to section 27-1315 and subdivision five of

 16  section 27-1316 of this article; until such regulations are promulgated,

 17  the  department  shall determine cleanup levels for contaminants in soil

 18  using site specific data. The department may approve a  work  plan  that

 19  includes  institutional  controls  and/or engineering controls as compo-

 20  nents of a remedial program but only if the work plan requires the owner

 21  of such real property to annually submit to  the  department  a  written

 22  statement  certifying  under  penalty  of perjury that the institutional

 23  controls and engineering controls employed  to  remediate  such  contam-

 24  ination  are  unchanged from the previous certification and that nothing

 25  has occurred that would constitute a violation of any such controls, and

 26  gives access to such real property reasonable under the circumstances to

 27  evaluate continued maintenance of such controls.  The  department  shall

 28  establish  and  maintain  a  database  with relevant information on such

                                        46                         12334-02-0

  1  controls and shall make such information available for public inspection

  2  at the office of the county clerk or register for each county and at the

  3  office of the town clerk for each town in Suffolk and  Nassau  counties;

  4  and

  5    (iii)  at  any  time during the evaluation of a proposed workplan, the

  6  department may request that an  affected  person  submit  additional  or

  7  corrected information to the department. An affected person shall either

  8  comply  with the request or withdraw such proposed workplan from consid-

  9  eration.

 10    2. For a  voluntary  agreement  requiring  remediation,  the  affected

 11  person shall cause a final remediation report to be prepared and submit-

 12  ted  to  the  department  that  identifies  the  remediation  activities

 13  completed pursuant to the voluntary agreement.  Such  final  remediation

 14  report, at a minimum, shall demonstrate, as appropriate, that:

 15    a.  there  is  no contamination by hazardous waste or petroleum of the

 16  soil, sediment, surface water, or  groundwater  on  or  underlying  such

 17  affected  site  in concentrations exceeding the requirements for remedi-

 18  ation set forth in the department-approved work plan for remediation  of

 19  such affected site;

 20    b.  if  remediation  was  conducted  in accordance with such voluntary

 21  agreement and such agreement provides  for  a  timetable  by  which  the

 22  requirements  for  remediation set forth in the department-approved work

 23  plan for remediation of such affected site will be  achieved,  the  data

 24  submitted to the department demonstrate that such applicable remediation

 25  requirements  will  be achieved in accordance with the timeframes estab-

 26  lished in such agreement;

 27    c. if the remediation relies  on  restrictions  on  the  use  of  such

 28  affected  site  to achieve the requirements for remediation set forth in

                                        47                         12334-02-0

  1  the department-approved work plan for remediation of such affected site,

  2  such affected person has caused such use restrictions to be recorded and

  3  indexed as a declaration of restrictions in the office of the  recording

  4  officer  for  the county or counties where such affected site is located

  5  in the manner prescribed by article nine of the real  property  law  and

  6  documented   such   recordation   and   indexing.  Such  declaration  of

  7  restriction shall contain the name of the record owner of such  affected

  8  site  along  with  tax  map parcel number or the section, block, and lot

  9  number of such affected site; or

 10    d. if the remediation was conducted in accordance with such  voluntary

 11  agreement  and  such  voluntary  agreement requires engineering controls

 12  that contain or control the contamination at or from such affected site,

 13  the department has approved a plan submitted by such affected person for

 14  the proper operation and maintenance of those engineering controls.

 15    3. If at an affected site being remediated by an affected  person  who

 16  is  not responsible for the disposal of hazardous waste or the discharge

 17  of petroleum according to applicable principles of statutory  or  common

 18  law liability, or who is liable solely as a result of ownership or oper-

 19  ation of the affected site subsequent to the disposal of hazardous waste

 20  or  the discharge of petroleum, the department determines that hazardous

 21  wastes or petroleum at the affected site have migrated from the site and

 22  pose a significant threat to public health or  the  environment  due  to

 23  such  migration,  the  department  shall  require the person responsible

 24  according to applicable principles of statutory or common law  liability

 25  to  conduct  the  off-site remediation, provided however, the department

 26  shall not require an affected person whose liability arises solely  from

 27  ownership  or  operation at the affected site subsequent to the disposal

 28  of hazardous waste or the discharge of petroleum to  conduct  such  off-

                                        48                         12334-02-0

  1  site  remediation.  If  such  responsible person fails to undertake such

  2  off-site remediation, the state is authorized to  use  moneys  from  the

  3  remedial  program  transfer fund established pursuant to section ninety-

  4  seven-uuu of the state finance law to remediate such contamination.  The

  5  state's costs incurred to remediate such off-site contamination shall be

  6  recoverable from the responsible party or parties.

  7    4.  The  commissioner  shall  use  best  efforts to approve, modify or

  8  reject a proposed voluntary agreement for remediation within sixty  days

  9  after  the  end of the comment period or the close of the public meeting

 10  provided by section 27-1409 of this title, whichever is later, and after

 11  evaluating any comments received.

 12    a. If the commissioner rejects such proposed voluntary agreement,  the

 13  commissioner  shall  notify  the affected person and specify the reasons

 14  for rejecting same.

 15    b. If the commissioner approves or modifies  such  proposed  voluntary

 16  agreement,  the  commissioner shall notify the affected person, in writ-

 17  ing, that the proposed voluntary agreement has been  approved  or  modi-

 18  fied.  If  the commissioner requires a modification, the affected person

 19  may agree to modify such proposed voluntary  agreement  or  withdraw  it

 20  from consideration.

 21    5. Upon finalization of the proposed voluntary agreement's provisions,

 22  as may be modified, the department and the affected person shall execute

 23  a  voluntary  agreement that shall contain the matters set forth in this

 24  title. The affected person shall carry out the terms  of  the  voluntary

 25  agreement.

 26    6.  Nothing  herein shall prohibit or limit the department from termi-

 27  nating a voluntary agreement at any time during  its  implementation  if

                                        49                         12334-02-0

  1  the  affected person subject to such voluntary agreement fails to comply

  2  substantially with such agreement's terms and conditions.

  3    7.  Nothing herein shall require the department to enter into a volun-

  4  tary agreement with an affected party.

  5  § 27-1409. Citizen participation/public notification.

  6    1. The department shall place a notification of receipt of  a  request

  7  to  participate  in  the  voluntary remediation program pursuant to this

  8  title in the environmental notice bulletin.

  9    2. Upon the department's finalization of  a  voluntary  agreement  for

 10  investigation,   the   department   must   notify   individuals,  groups

 11  and/organizations that have expressed interest in or are affected by the

 12  voluntary agreement of such agreement, and must publish a notice in  the

 13  environmental notice bulletin. Further, upon the satisfactory completion

 14  of  the  investigation  performed  under  such  voluntary agreement, the

 15  department must notify individuals,  groups  and/or  organizations  that

 16  have  expressed  interest  in or are affected by the voluntary agreement

 17  and publish a notice in the environmental notice bulletin regarding such

 18  satisfactory completion.

 19    3. Before the department finalizes a proposed voluntary agreement  for

 20  remediation,  the  department must notify individuals, groups and organ-

 21  izations that have expressed interest in or are affected by the proposed

 22  voluntary agreement of the proposed voluntary agreement for  remediation

 23  and  publish a notice requesting comments concerning the proposed volun-

 24  tary agreement in the environmental notice bulletin. Such  notice  shall

 25  provide for a forty-five day public comment period following publication

 26  of  the  notice required under this section. The department shall hold a

 27  public meeting on the proposed voluntary remediation  agreement  if  the

                                        50                         12334-02-0

  1  commissioner  finds  that  the  affected  site constitutes a significant

  2  threat to the public health or to the environment.

  3  § 27-1411. Covenant not to sue.

  4    1.  After the affected person has successfully implemented a voluntary

  5  agreement which provides for the remediation of the affected site,  such

  6  affected  person  shall submit to the department a written certification

  7  prepared by an individual licensed or otherwise authorized in accordance

  8  with article one hundred forty-five of the education law to practice the

  9  profession of engineering who shall have been in charge of the implemen-

 10  tation  of  such  remediation  undertaken  pursuant  to  such  agreement

 11  substantiating  that,  at  a minimum, such remedial activities satisfied

 12  the requirements set forth in paragraph b of subdivision two of  section

 13  27-1407 of this title.

 14    2. Upon the department's receipt of such certification, the department

 15  shall  review the final engineering report and the data submitted pursu-

 16  ant to the voluntary agreement as well as any other relevant information

 17  regarding the affected site. The department shall provide  the  affected

 18  person,  upon  its  satisfaction  that the remedial requirements for the

 19  affected site have been achieved, with a covenant not  to  sue,  binding

 20  upon  the  state,  for  any liability, including any future liability or

 21  claim for the further remediation of hazardous waste or petroleum at  or

 22  from  the affected site that was the subject of such voluntary agreement

 23  except that a person responsible for  the  affected  site's  remediation

 24  pursuant to applicable principles of statutory and common law liability,

 25  unless  such  liability arises solely from ownership or operation of the

 26  affected site subsequent to the  disposal  of  hazardous  waste  or  the

 27  discharge of petroleum, shall not receive a release for natural resource

 28  damages.  Additionally,  the  state nonetheless shall reserve all of its

                                        51                         12334-02-0

  1  rights concerning, and such covenant shall not extend  to,  any  further

  2  investigation  or  remedial  action the department deems necessary, as a

  3  result of:

  4    a.  a failure to comply with the terms and conditions of the voluntary

  5  agreement;

  6    b. a fraudulent demonstration that the cleanup  levels  identified  in

  7  the voluntary agreement were reached;

  8    c.  a release or threatened release at the affected site subsequent to

  9  the effective date of the voluntary agreement;

 10    d. a change in the affected site's use  subsequent  to  the  effective

 11  date  of  the  voluntary  agreement  to a use requiring a lower level of

 12  residual contamination unless additional remedial activities are  under-

 13  taken  which shall meet the standard for protection of public health and

 14  the environment that applies to remedial actions for such use under this

 15  article;

 16    e. information received, in whole or in part, after  the  department's

 17  execution  of such voluntary agreement, which indicates that the remedi-

 18  ation performed, or to be performed, under such voluntary agreement will

 19  not be, or is not, protective of public health or  the  environment  for

 20  such use of the affected site; or

 21    f.  the  department  determines  that  the  remedy  implemented is not

 22  protective of public health or the environment.

 23    3. The reservation contained in paragraph d of subdivision two of this

 24  section shall not be reserved in the event an affected person remediates

 25  soil contamination to soil category 1, as  that  term  is  described  in

 26  paragraph a of subdivision three of section 27-1316 of this article.

 27    4. The reservation contained in paragraph f of subdivision two of this

 28  section  shall not be reserved for an affected person who is not respon-

                                        52                         12334-02-0

  1  sible for the remediation of the site pursuant to applicable  principles

  2  of  statutory  or  common  law  liability,  or who is liable solely as a

  3  result of ownership or operation of the affected site subsequent to  the

  4  disposal  of hazardous waste or the discharge of petroleum, in the event

  5  that such person remediates soil contamination to soil  category  1,  as

  6  that  term  is  described in paragraph a of subdivision three of section

  7  27-1316 of this article.

  8    5. The covenant not to sue  issued  pursuant  to  this  section  shall

  9  extend  to  the  person's  successors  or assigns through acquisition of

 10  title to the affected site to which the covenant applies and to a person

 11  who develops or otherwise occupies the affected site, provided that such

 12  persons act in good faith to adhere to the requirements of  such  volun-

 13  tary agreement and workplan. However, such covenant does not extend, and

 14  cannot  be  transferred, to a person who is responsible for the disposal

 15  of hazardous waste or the discharge of petroleum according to applicable

 16  principles of statutory or common law liability as of the effective date

 17  of the voluntary agreement unless that person was party to the voluntary

 18  agreement on which such covenant was based. A notice  of  the  agreement

 19  containing  such covenant shall be recorded and indexed as a declaration

 20  of covenant in the office of the recording officer  for  the  county  or

 21  counties where such affected site is located in the manner prescribed by

 22  article  nine of the real property law within thirty days of signing the

 23  agreement if the person is an owner or within thirty days  of  acquiring

 24  title to the affected site if the person is a prospective purchaser.

 25    6. The provisions of this title shall not affect an action or a claim,

 26  including  a  claim  for  contribution,  that a person who implements or

 27  completes an agreement  executed  by  such  person  and  the  department

                                        53                         12334-02-0

  1  providing  for  the  remediation  of  the affected site pursuant to this

  2  title has or may have against a third party.

  3    7.  Nothing  in  this  section shall be construed to affect either the

  4  liability of any person with respect to any costs, damages, or  investi-

  5  gative or remedial activities that are not included in the agreement; or

  6  the  department's  authority to maintain an action or proceeding against

  7  any person who is not subject to the agreement.

  8    8. A person who has settled its liability to the department under this

  9  section shall not  be  liable  for  claims  for  contribution  regarding

 10  matters  addressed in the agreement.  Such settlement does not discharge

 11  any of the persons responsible under law to  investigate  and  remediate

 12  the  hazardous  waste  unless  its  terms so provide, but it reduces the

 13  potential liability of the others by the amount of the settlement.

 14    9. Nothing in this section shall be construed to affect the  authority

 15  of the department to reach settlement with other persons consistent with

 16  its authority under applicable law.

 17    10.  An  affected person who implements a voluntary agreement executed

 18  by such affected person and the department pursuant to this title  shall

 19  not  be  held  liable  for  claims  for  contribution concerning matters

 20  addressed in such voluntary agreement.

 21  § 27-1413. Remediation certificate.

 22    1.  Upon the department's determination pursuant to subdivision two of

 23  section 27-1411 of this title that the  remedial  requirements  for  the

 24  affected  site  have been achieved, the affected person may apply to the

 25  commissioner for a remediation certificate that certifies that the reme-

 26  dial requirements for the affected site have been achieved  pursuant  to

 27  this  title  which would warrant the allowance of a credit under section

 28  fourteen of the tax law.

                                        54                         12334-02-0

  1    2. Such application shall be on a form  provided  by  the  department,

  2  shall  be certified under penalty of perjury, and shall, include but not

  3  be limited to, a statement from a certified public accountant  detailing

  4  the  site preparation costs; as that term is defined in section thirteen

  5  of  the tax law, required to be paid or incurred in order to qualify for

  6  a remediation certificate.

  7    3. The commissioner shall issue  a  remediation  certificate  if  such

  8  affected  person  is either (i) not a person responsible for the remedi-

  9  ation of hazardous waste or the discharge of petroleum at  the  affected

 10  site  according  to  applicable  principles  of  statutory or common law

 11  liability, or (ii) a person responsible for the remediation of hazardous

 12  waste or the discharge of petroleum at the affected  site  according  to

 13  applicable  principles  of  statutory  or  common  law liability if such

 14  person's liability arises solely from  ownership  or  operation  of  the

 15  affected  site  subsequent  to  the  disposal  of hazardous waste or the

 16  discharge of petroleum.

 17    4. Such remediation certificate shall state:

 18    a. that the affected person is eligible pursuant to paragraph  (i)  or

 19  (ii)  of  subdivision  three  of this section for a credit under section

 20  fourteen of the tax law;

 21    b. that the affected person has satisfactorily completed the  remedial

 22  program  required by the voluntary agreement. Further, in the event that

 23  cleanup of the soil to soil category 2 or  soil  category  3,  as  those

 24  terms  are  described  in  paragraph  a  of subdivision three of section

 25  27-1316 of this article would be protective of  public  health  and  the

 26  environment  in  accordance  with  subparagraph  (ii)  of paragraph b of

 27  subdivision one of section 27-1407  of  this  title,  and  the  affected

 28  person  remediated the soil to soil category 1 as that term is described

                                        55                         12334-02-0

  1  in paragraph a of subdivision three of section 27-1316 of this  article,

  2  the  remediation  certificate shall indicate that the affected person is

  3  eligible to receive an additional two percent credit pursuant  to  para-

  4  graph four of subdivision (a) of section fourteen of the tax law; and

  5    c.  the  department's  determination  regarding  the  amount  that the

  6  affected person has expended for site preparation costs as that term  is

  7  defined  in  section  fourteen  of  the  tax law, required to be paid or

  8  incurred in order to qualify for a remediation certificate.

  9    5. If the affected person has leased the property and such  lessee  is

 10  (i)  not  a person responsible for the remediation of hazardous waste or

 11  the discharge of petroleum at the affected site according to  applicable

 12  principles  of  statutory  or  common  law  liability,  or (ii) a person

 13  responsible for the remediation of hazardous waste or the  discharge  of

 14  petroleum  at  the  affected  site according to applicable principles of

 15  statutory or common law liability  if  such  person's  liability  arises

 16  solely  from  ownership  or operation of the affected site subsequent to

 17  the disposal of hazardous wastes or  the  discharge  of  petroleum,  the

 18  remediation  certificate  shall also include a statement indicating that

 19  the lessee is a person as set forth in this subdivision.

 20    6. A remediation certificate issued pursuant to subdivision  three  of

 21  this section may be modified or revoked by the commissioner upon a find-

 22  ing that:

 23    a.  the affected person has failed to comply with the terms and condi-

 24  tions of the voluntary agreement;

 25    b. the affected person  fraudulently  demonstrated  that  the  cleanup

 26  levels identified in the voluntary agreement were reached; or

 27    c. there is good cause for such modification or revocation.

                                        56                         12334-02-0

  1    7. Upon the commissioner's determination pursuant to subdivision three

  2  or  six  of  this  section,  the commissioner shall provide the affected

  3  person with notice of such determination and  notice  of  the  right  to

  4  appeal  such  determination.  The  commissioner's determination shall be

  5  final unless a hearing is requested by certified mail to the commission-

  6  er  within  thirty  days  after  receiving notice of such determination.

  7  After such hearing the commissioner shall give notice of final  determi-

  8  nation  to  such  affected person. The commissioner may promulgate regu-

  9  lations to effectuate the purposes of this section.    The  commissioner

 10  shall promptly notify the commissioner of taxation and finance when such

 11  a  determination  pursuant  to  such subdivision six of this section has

 12  become final and is no longer subject to judicial appeal.

 13  § 27-1415. Payment of state costs.

 14    1. Pursuant to timetables contained in the  voluntary  agreement,  the

 15  affected  person shall pay all state costs incurred in overseeing imple-

 16  mentation of such agreement. In addition, if  such  affected  person  is

 17  responsible  for  the  disposal  of  hazardous waste or the discharge of

 18  petroleum according to applicable principles of statutory or common  law

 19  liability,  unless such liability arises solely from ownership or opera-

 20  tion of the affected site subsequent to the disposal of hazardous  waste

 21  or  the discharge of petroleum, such affected person shall pay all costs

 22  incurred by the state up to the effective date of such voluntary  agree-

 23  ment.

 24    2.  Payment  of such state costs identified in subdivision one of this

 25  section shall be made to the remedial program transfer fund  established

 26  pursuant to section ninety-seven-uuu of the state finance law.

 27    3.  In  the  event  that  either the affected person or the department

 28  withdraw from a voluntary agreement before such agreement's  completion,

                                        57                         12334-02-0

  1  or  upon  completion of the activities undertaken pursuant to the volun-

  2  tary agreement, all unexpended moneys which the  affected  person  shall

  3  have  paid  into such account shall be reimbursed to the affected person

  4  after  a  final  accounting  of  all  claims upon such affected person's

  5  payments.

  6    § 11. Subdivision 8 of section 52-0101 of the environmental  conserva-

  7  tion  law,  as  added  by chapter 512 of the laws of 1986, is amended to

  8  read as follows:

  9    8. "Hazardous waste" shall have the definition  set  forth  in  Õtitle

 10  nine of article twenty-sevenå section 27-1301 of this chapter.

 11    §  12. Subdivision 1 of section 52-0103 of the environmental conserva-

 12  tion law, as amended by chapter 9 of the laws of  1994,  is  amended  to

 13  read as follows:

 14    1.  For  remediation  of  hazardous waste sites, as set forth in title

 15  three of this article and for the closure of municipal landfills, as set

 16  forth in title five of article fifty-four of this chapter,  one  billion

 17  two  hundred  million  dollars of whichÕ: (i)å up to one hundred million

 18  dollars shall be made available for state assistance payments toward the

 19  cost of the closure of municipal landfills, as set forth in  title  five

 20  of article fifty-four of this chapter; Õand (ii) up to one hundred thou-

 21  sand  dollars  shall  be  made  available  for  the  study  of hazardous

 22  substance waste disposal sites, as defined in section  27-1316  of  this

 23  chapter;å and

 24    §  13. Subdivision 1 of section 71-2727 of the environmental conserva-

 25  tion law, as amended by chapter 671 of the laws of 1986, is  amended  to

 26  read as follows:

 27    1. The commissioner, after investigation, notice and an opportunity to

 28  be  heard, may issue, modify and revoke orders prohibiting violations of

                                        58                         12334-02-0

  1  any of the provisions of article 27 or 71 or of any rule  or  regulation

  2  promulgated  pursuant  thereto and requiring the taking of such remedial

  3  measures as may be necessary or appropriate.   Nothing herein  contained

  4  shall  be  deemed  to  preclude the disposition of any matter within the

  5  department's jurisdiction under article twenty-seven of this chapter  by

  6  stipulation,   agreed  settlement,  consent  order,  default,  or  other

  7  informal method, upon such terms and  subject  to  such  conditions  and

  8  limitations as the commissioner may deem just.

  9    §  14.  The section   heading of section 213 of the civil practice law

 10  and rules, as amended by chapter 43 of the laws of 1975, is  amended  to

 11  read as follows:

 12    Actions to be commenced within six years: where not otherwise provided

 13  for;  on  contract;  on sealed instrument; on bond or note, and mortgage

 14  upon real property; by state based on misappropriation of public proper-

 15  ty; based on mistake; by corporation against director, officer or stock-

 16  holder; based on fraud; by state based on claims  pursuant  to  subdivi-

 17  sions   ten   and   eleven  of  section  27-1313  of  the  environmental

 18  conservation law; by state based on injury to,  or  destruction  of,  or

 19  loss of, or loss of use of natural resources.

 20    §  15.  Section  213 of the civil practice law and rules is amended by

 21  adding three new subdivisions 9, 10 and 11 to read as follows:

 22    9. an action by the  state  under  authority  of  subdivision  ten  of

 23  section  27-1313  of the environmental conservation law; the time within

 24  which the action must be commenced shall be computed from the initiation

 25  of physical on-site construction of the remedial program.

 26    10. an action for contribution under authority of  subdivision  eleven

 27  of section 27-1313 of the environmental conservation law; the time with-

                                        59                         12334-02-0

  1  in  which such action must be commenced shall be computed from the later

  2  of:

  3    a. the date of judgment in any action under any law, state or federal,

  4  respecting the costs that are the subject of the claim for contribution;

  5  or

  6    b. the date of the issuance of an order or agreement by the department

  7  of  environmental conservation respecting the costs that are the subject

  8  of the claim for contribution or respecting activities  the  conduct  of

  9  which  caused   the expenditure of the costs that are the subject of the

 10  claim for contribution.

 11    11. an action under authority of subdivision twelve of section 27-1313

 12  of the environmental conservation law; the time within which the  action

 13  must  be  commenced  shall  be  computed  from  the  completion  of  the

 14  construction of the inactive  hazardous  waste  disposal  site  remedial

 15  program.

 16    §  16.  The  general  municipal law is amended by adding a new section

 17  970-r to read as follows:

 18    § 970-r. State assistance: brownfield redevelopment area planning.  1.

 19  Definitions.  a. "Brownfield redevelopment area" is  an  area  where:  a

 20  number of abandoned, idled or under-utilized properties are clustered in

 21  a  geographic  location;  contamination by hazardous waste as defined in

 22  section 27-1301 of the environmental conservation law  or  petroleum  as

 23  defined  in  section  one  hundred  seventy-two of the navigation law is

 24  suspected  of being widespread; and the  remediation  of  any  one  site

 25  would  not  address  all  suspected  sources of contamination and enable

 26  beneficial environmental and economic use.

 27    b. A "brownfield redevelopment area plan" is a plan  undertaken  by  a

 28  municipality  or  not-for-profit  corporation  to  develop a strategy to

                                        60                         12334-02-0

  1  return a brownfield redevelopment area to productive economic use  while

  2  protecting human health and the environment.

  3    2.  The  secretary of state is authorized to provide technical assist-

  4  ance to municipalities and not-for-profit corporations acting in cooper-

  5  ation with municipalities, to enhance their  capabilities  to  plan  the

  6  redevelopment of brownfield redevelopment areas.

  7    3.  Within  the  limits  of  appropriations therefor, the secretary of

  8  state is authorized  to  provide,  on  a  competitive  basis,  financial

  9  assistance  to  municipalities and not-for-profit corporations acting in

 10  cooperation with municipalities, to advance plans for the  redevelopment

 11  of brownfield redevelopment areas, as follows:

 12    a.  in  the preparation of a pre-planning study to develop information

 13  necessary for designating a brownfield redevelopment area.  Pre-planning

 14  activities include, but are not limited to, basic information about  the

 15  boundaries  of  the  area,  the number and size of brownfield sites, the

 16  current and anticipated uses of the properties and  groundwater  in  the

 17  area,  known  data about the environmental conditions of the properties,

 18  ownership of the sites in the area and other information deemed relevant

 19  by the secretary of state.  Such study, when completed, shall be submit-

 20  ted to the secretary of  state.    The  municipality  or  not-for-profit

 21  corporation with the approval of the municipality may then file  a peti-

 22  tion  requesting  designation  of the area as a brownfield redevelopment

 23  area for the approval of the secretary of state;

 24    b. in the preparation of a brownfield redevelopment area plan.   Plan-

 25  ning activities eligible to receive funding include, but are not limited

 26  to,  a  strategy which defines the end uses of the brownfield redevelop-

 27  ment area once the properties  have  been  remediated  and  revitalized,

 28  including  any  infrastructure needs, and identifies actions required to

                                        61                         12334-02-0

  1  reach such proposed end-uses, and other information deemed  relevant  by

  2  the  secretary  of state.   Such plan must be formulated in consultation

  3  with community based organizations and affected landowners. The  munici-

  4  pality  or  not-for-profit  corporation with the approval of the munici-

  5  pality shall submit such plan for  the  approval  of  the  secretary  of

  6  state.

  7    c.  in  the  preparation  of site assessments of properties owned by a

  8  municipality or a party not responsible for the remediation of hazardous

  9  waste or petroleum according to applicable principles  of  statutory  or

 10  common  law  liability,  or  a responsible party according to applicable

 11  principles of statutory or common law liability if such person's liabil-

 12  ity arises solely from ownership or operation of the site subsequent  to

 13  the  disposal  of  hazardous  waste or the discharge of petroleum in the

 14  brownfield redevelopment area. Assessment activities  include,  but  are

 15  not limited to, testing of properties to determine the nature and extent

 16  of  the  contamination  (including  soil and groundwater), environmental

 17  assessments, the development  of  a  proposed  remediation  strategy  to

 18  address  any  identified  contamination  and any other activities deemed

 19  appropriate by the secretary in consultation with  the  commissioner  of

 20  environmental   conservation.  Any  environmental  assessment  shall  be

 21  subject to the review and approval of the commissioner of  environmental

 22  conservation.  State  assistance  payments shall not exceed seventy-five

 23  percent of the cost of such plans. The secretary of state, in  consulta-

 24  tion with the commissioner of environmental conservation, may enter into

 25  a  contract with a municipality or not-for-profit corporation, including

 26  such terms and conditions as the secretary of state and commissioner  of

 27  environmental  conservation  may  deem appropriate, to provide the state

 28  assistance.

                                        62                         12334-02-0

  1    4. When determining the eligibility of a municipality or  not-for-pro-

  2  fit  corporation for such assistance, the secretary of state, in consul-

  3  tation with the commissioner of  environmental  conservation  and  other

  4  appropriate  agencies,  shall consider, among other matters, the follow-

  5  ing:  benefit  to human health, benefit to the environment, the economic

  6  benefit to the state (including new  employment  opportunities  and  new

  7  public  recreational  resources),  and  the  strength  of local support.

  8  Funding preferences shall be given to proposals for areas: with a demon-

  9  strated need for restoration; that would yield economic benefit  to  the

 10  state  and  create  new  jobs  or  a new public resource; that receive a

 11  strong level of local support; and where a majority  of  the  properties

 12  are owned by a municipality or party not responsible for the remediation

 13  of  hazardous  waste  or petroleum according to applicable principles of

 14  statutory or common law liability or a responsible  party  according  to

 15  applicable  principles  of  statutory  or  common  law liability if such

 16  person's liability arises solely from ownership or operation of the site

 17  subsequent to the disposal of hazardous waste or the discharge of petro-

 18  leum.

 19    5. The secretary of state shall provide from available monies  techni-

 20  cal support to municipalities and not-for-profit corporations to prepare

 21  their brownfield development areas program. Such support includes but is

 22  not limited to personal and non-personal services.

 23    §  17.  The navigation law is amended by adding a new section 172-a to

 24  read as follows:

 25    § 172-a. Liability exclusions.  1. Notwithstanding  subdivision  thir-

 26  teen  of section one hundred seventy-two of this article the term "owner

 27  or operator" does not include a person that is a  lender  that,  without

 28  participating  in the management of property, holds indicia of ownership

                                        63                         12334-02-0

  1  primarily to protect the security interest of the person in that proper-

  2  ty; nor does it include a person that is a lender that did  not  partic-

  3  ipate  in  management  of property prior to foreclosure, notwithstanding

  4  that  the  person  forecloses  on  such  property and after foreclosure,

  5  sells, re-leases (in the case of a lease finance transaction), or liqui-

  6  dates the property, maintains business activities, winds up  operations,

  7  undertakes  in  a non-negligent manner remedial actions under the direc-

  8  tion of the department, with respect to  such  property,  or  takes  any

  9  other  measure  to  preserve, protect, or prepare such property prior to

 10  sale or disposition, if the person seeks to sell, re-lease (in the  case

 11  of  a  lease finance transaction), or otherwise divest the person of the

 12  property  at the earliest practicable commercially reasonable  time,  on

 13  commercially reasonable terms, taking into account market conditions and

 14  legal  and  regulatory requirements; provided, however, that such lender

 15  shall not make a claim against the fund arising out of a discharge asso-

 16  ciated with such property.  For purposes of this subdivision:

 17    (a) the term "participate in management" means actually  participating

 18  in  the  management  or  operational affairs of a property; and does not

 19  include merely having the capacity  to  influence,  or  the  unexercised

 20  right to control, property operations;

 21    (b)  a  person  that  is  a lender and that holds indicia of ownership

 22  primarily to protect a security interest in a property shall be  consid-

 23  ered  to  participate in management only if, while the borrower is still

 24  in possession of the property encumbered by the security  interest,  the

 25  person  exercises  decisionmaking control over the environmental compli-

 26  ance related to the  property,  such  that  the  person  has  undertaken

 27  responsibility  for  the  hazardous waste handling or disposal practices

 28  related to the property; or exercises control at a level  comparable  to

                                        64                         12334-02-0

  1  that  of  a manager of the property, such that the person has assumed or

  2  manifested responsibility for the overall  management  of  the  property

  3  encompassing  day-to-day  decisionmaking  with  respect to environmental

  4  compliance;  or  over  all or substantially all of the operational func-

  5  tions (as distinguished from financial or administrative  functions)  of

  6  the property other than the function of environmental compliance;

  7    (c)  the  term "participate in management" does not include performing

  8  an act or failing to act prior to the time at which a security  interest

  9  is created in a property; and

 10    (d)  the  term  "participate in management" does not include holding a

 11  security interest  or  abandoning  or  releasing  a  security  interest;

 12  including  in  the  terms of an extension of credit, or in a contract or

 13  security agreement relating to the extension, a covenant,  warranty,  or

 14  other  term or condition that relates to environmental compliance; moni-

 15  toring or enforcing the terms and conditions of the extension of  credit

 16  or  security interest; monitoring or undertaking one or more inspections

 17  of the property; requiring a response action or other  lawful  means  of

 18  addressing  the  release  or  threatened release of a hazardous waste in

 19  connection with the property prior to, during, or on the  expiration  of

 20  the term of the extension of credit; providing financial or other advice

 21  or  counseling  in  an  effort  to mitigate, prevent, or cure default or

 22  dimunition in the value of the property;  restructuring,  renegotiating,

 23  or otherwise agreeing to alter the terms and conditions of the extension

 24  of credit or security interest, exercising forbearance; exercising other

 25  remedies  that may be available under applicable law for the breach of a

 26  term or condition of the extension of credit or security  agreement;  or

 27  conducting in a non-negligent manner a remedial action directly or under

 28  the  direction  of  the department of environmental conservation, if the

                                        65                         12334-02-0

  1  actions do not rise to the level of participating in management  (within

  2  the meaning of this subdivision);

  3    (e)  the  term  "extension  of credit" includes a lease finance trans-

  4  action in which the lessor does not initially select the leased property

  5  and does not during the lease term control the daily operations or main-

  6  tenance of the property; or that conforms with regulations issued by the

  7  appropriate federal banking agency (as defined in 12 USC  section  1813)

  8  or  the  superintendent  of  banks  or  with  regulations  issued by the

  9  National Credit Union Administrative Board, as appropriate;

 10    (f) the term "financial or administrative function" includes  a  func-

 11  tion  such  as  that  of  a  credit  manager,  accounts payable officer,

 12  accounts receivable officer, personnel manager,  comptroller,  or  chief

 13  financial officer, or a similar function;

 14    (g)  the  term  "foreclosure"  and  "foreclose"  means,  respectively,

 15  acquiring and to acquire, a property through purchase at  sale  under  a

 16  judgment  or  decree,  power of sale, or nonjudicial foreclosure sale; a

 17  deed in lieu of foreclosure, or similar conveyance from  a  trustee;  or

 18  repossession,  if  the  property was security for an extension of credit

 19  previously contracted; conveyance pursuant to  an  extension  of  credit

 20  previously  contracted,  including the termination of a lease agreement;

 21  or any other formal or informal manner by which the person acquires, for

 22  subsequent disposition, title to or possession of a property in order to

 23  protect the security interest of the person;

 24    (h) the term "lender" means  an  insured  depository  institution  (as

 25  defined  in 12 USC section 1813); an insured credit union (as defined in

 26  12 USC section 1752); a bank or association  chartered  under  the  Farm

 27  Credit  Act of 1971 (12 U.S.C. 2001 et seq.); a leasing or trust company

 28  that is an affiliate of an insured depository  institution;  any  person

                                        66                         12334-02-0

  1  (including a successor or assignee of any such person) that makes a bona

  2  fide  extension  of  credit  to or takes or acquires a security interest

  3  from a nonaffiliated person; the Federal National Mortgage  Association,

  4  the  Federal  Home  Loan  Mortgage Corporation, the Federal Agricultural

  5  Mortgage Corporation, or any other entity that in  a  bona  fide  manner

  6  buys  or  sells  loans  or  interests in loans; a person that insures or

  7  guarantees against a default in the repayment of an extension of credit,

  8  or acts as a surety with respect to an extension of credit, to a  nonaf-

  9  filiated  person;  and  a  person that provides title insurance and that

 10  acquires a property as a result  of  assignment  or  conveyance  in  the

 11  course of underwriting claims and claims settlement;

 12    (i)  the  term "operational function" includes a function such as that

 13  of a facility or plant  manager,  operations  manager,  chief  operating

 14  officer, or chief executive officer; and

 15    (j)  the  term  "security interest" includes a right under a mortgage,

 16  deed of trust, assignment, judgment lien,  pledge,  security  agreement,

 17  factoring  agreement,  or lease and any other right accruing to a person

 18  to secure the repayment of money, the performance  of  a  duty,  or  any

 19  other obligation by a nonaffiliated person.

 20    2.  Notwithstanding subdivision thirteen of section one hundred seven-

 21  ty-two of this article the term, "owner or operator"  does  not  include

 22  the  state  or  a  public  corporation  which  acquired,  and thereafter

 23  retained without participating  in  the  management  of  such  property,

 24  ownership or control involuntarily or voluntarily by virtue of its func-

 25  tion as sovereign; provided, however, that such public corporation shall

 26  not make  a claim against the fund arising out of a discharge associated

 27  with  such  property. Neither the state nor any public corporation shall

 28  incur under this chapter any liability as to matters within  the  juris-

                                        67                         12334-02-0

  1  diction of the department as a result of actions taken in response to an

  2  emergency  created by the discharge or threatened discharge of petroleum

  3  by another person, provided that such actions by  the  state  or  public

  4  corporation  did not constitute reckless, willful, wanton or intentional

  5  misconduct.  As used in this subdivision:

  6    (a) "public corporation" means a public corporation as defined in  the

  7  general construction law;

  8    (b) "involuntary acquisition of ownership or control" includes, but is

  9  not limited to, the following:

 10    (i)  acquisitions  by the state or a public corporation, or its agent,

 11  acting as a conservator or receiver pursuant to a clear and direct stat-

 12  utory mandate or regulatory authority;

 13    (ii) acquisitions of assets through foreclosure and its equivalents as

 14  defined in paragraph (g) of subdivision one of this section,  or  other-

 15  wise,  by the state or a public corporation in the course of administer-

 16  ing a loan, loan guarantee or loan insurance program;

 17    (iii) acquisitions by the state or a public  corporation  pursuant  to

 18  seizure or forfeiture authority;

 19    (iv)  acquisitions  by the state or a public corporation as the result

 20  of tax delinquency purposes; provided, that such ownership or control is

 21  not retained primarily for investment purposes.

 22    (c) "management participation" means that the state or a public corpo-

 23  ration is actually participating in the management or operation  of  the

 24  property but does not include the mere capacity to influence, ability to

 25  influence or unexercised right to control the operation of the property.

 26  Nothing  contained in this subdivision affects the applicability of this

 27  section in favor of a holder of a security  interest  according  to  the

 28  terms thereof.

                                        68                         12334-02-0

  1    3.  Notwithstanding subdivision thirteen of section one hundred seven-

  2  ty-two of this article the term, "owner or operator" includes a  fiduci-

  3  ary;  provided,  however, that such liability on the part of a fiduciary

  4  shall not exceed the assets held  in  the  fiduciary  capacity  if  such

  5  person is not liable independently of such person's ownership as a fidu-

  6  ciary  or actions taken in a fiduciary capacity; provided, however, that

  7  such fiduciary shall not make a claim against the fund arising out of  a

  8  discharge associated with such property.

  9    (a) For purposes of this subdivision, (i) the term "fiduciary" means a

 10  person  acting  for the benefit of another party as a bona fide trustee;

 11  executor; administrator; custodian; guardian of estates or  guardian  ad

 12  litem;  receiver;  conservator;  committee  of  estates of incapacitated

 13  persons; personal representative; trustee (including a  successor  to  a

 14  trustee)  under an indenture agreement, trust agreement, lease, or simi-

 15  lar financing agreement, for debt securities, certificates  of  interest

 16  or  certificates  of participation in debt securities, or other forms of

 17  indebtedness as to which the trustee is not, in the capacity of trustee,

 18  the lender; or representative in any other capacity that the department,

 19  after providing public notice, determines to be similar to  the  various

 20  capacities  previously described in this paragraph; and does not include

 21  either a person that is acting as a fiduciary with respect to a trust or

 22  other fiduciary estate that was organized for the primary purpose of, or

 23  is engaged in, actively carrying on a trade or business for  profit,  or

 24  to  facilitate one or more estate plans, or because of the incapacity of

 25  a natural person or a person that acquires ownership  or  control  of  a

 26  property  with the objective purpose of avoiding liability of the person

 27  or any other person;

                                        69                         12334-02-0

  1    (ii) the term "fiduciary capacity" means the capacity of a  person  in

  2  holding title to a property, or otherwise having control of or an inter-

  3  est  in  a property, pursuant to the exercise of the responsibilities of

  4  the person as a fiduciary.

  5    (b)  Nothing  in  this subdivision affects the rights or immunities or

  6  other defenses that are available under law that  are  applicable  to  a

  7  person subject to this subdivision or creates any liability for a person

  8  or a private right of action against a fiduciary or any other person.

  9    (c)  Nothing  in  this subdivision applies to a person if that person,

 10  acts in a capacity other than that of a  fiduciary  or  in  a  fiduciary

 11  capacity  and  in  that capacity, directly or indirectly benefits from a

 12  trust or fiduciary relationship; or is a beneficiary and fiduciary  with

 13  respect  to the same fiduciary estate and as a fiduciary, receives bene-

 14  fits that exceed customary or reasonable  compensation,  and  incidental

 15  benefits, permitted under other applicable law.

 16    (d)  This  subdivision  does  not  preclude a claim under this chapter

 17  against the assets of the estate or trust administered by the fiduciary;

 18  or a nonemployee agent or independent contractor retained by  a  fiduci-

 19  ary.

 20    4.  Notwithstanding subdivision thirteen of section one hundred seven-

 21  ty-two of this article the term, "owner or operator" includes an  indus-

 22  trial  development  authority  created under the public authorities law,

 23  other than one that holds bare legal title to  such  property;  has  not

 24  participated with any party responsible under law for the remediation of

 25  contamination  in,  on,  or from such property to attempt to have such a

 26  party avoid its remedial liability; has not  exercised  any  contractual

 27  rights  it  may  have or had, if any, under the lease, guarantee, or any

 28  other financing agreement pursuant to which the  industrial  development

                                        70                         12334-02-0

  1  authority  would assume control over the actual operation of the proper-

  2  ty; has not taken possession or control of the property;  and  does  not

  3  make a claim against the fund arising out of a discharge associated with

  4  such  property. Nothing in this subdivision, affects the rights or immu-

  5  nities or other defenses that are available under law that are  applica-

  6  ble  to  a  person subject to this subdivision; or creates any liability

  7  for a person or a private right of action against an industrial develop-

  8  ment authority or any other person.

  9    5. Notwithstanding the  foregoing,  a  person  receiving  a  liability

 10  exemption  or  liability limitation under subdivision one, two, three or

 11  four of this section shall be deemed to have waived any  claim  pursuant

 12  to  section  one hundred eighty-one of this article that such person may

 13  have against the New York environmental  protection  and  spill  compen-

 14  sation fund.

 15    §  18. Paragraph (a) of subdivision 2 of section 176 of the navigation

 16  law, as amended by chapter 584 of the laws of 1992, is amended  to  read

 17  as follows:

 18    (a)  Upon  the  occurrence of a discharge of petroleum, the department

 19  shall respond promptly and proceed to cleanup and remove  the  discharge

 20  in  accordance  with environmental priorities or may, at its discretion,

 21  direct the discharger to promptly cleanup and remove the discharge.  The

 22  department  shall  be responsible for cleanup and removal or as the case

 23  may be, for retaining agents and contractors who shall operate under the

 24  direction of that department for such purposes. Implementation of clean-

 25  up and removal procedures after each discharge  shall  be  conducted  in

 26  accordance  with  environmental priorities and procedures established by

 27  the department.  Such procedures shall provide:

                                        71                         12334-02-0

  1    (i) the objective of a cleanup and removal that the department  deter-

  2  mines  does  not  constitute  an immediate response cleanup shall be the

  3  protection of public health and the environment, with the minimum objec-

  4  tive being to eliminate or mitigate all significant  threats  to  public

  5  health  and  the  environment presented by such discharge through proper

  6  application of scientific and engineering principles; and that the reme-

  7  dy must be selected upon due consideration of the following factors:

  8    (A) conformance to standards and criteria that are generally  applica-

  9  ble,  consistently  applied, and officially promulgated, that are either

 10  directly applicable, or that are not directly applicable but  are  rele-

 11  vant  and appropriate, unless good cause exists why conformity should be

 12  dispensed with, and with consideration being given  to  guidance  deter-

 13  mined, after the exercise of engineering judgement, to be applicable;

 14    (B) overall protectiveness of public health and the environment;

 15    (C) short-term effectiveness;

 16    (D) long-term effectiveness;

 17    (E)  reduction  of  toxicity,  mobility,  and  volume  with treatment;

 18  addressing a hot spot of petroleum that  permanently  and  significantly

 19  reduces  the volume, toxicity, and/or mobility of the petroleum is to be

 20  preferred over a method that does not do so. The hierarchy  of  remedial

 21  technologies shall be as set forth under section 27-0105 of the environ-

 22  mental conservation law;

 23    (F) cost;

 24    (G) implementability;

 25    (H) community acceptance; and

 26    (I) land use: the current, intended, and reasonably anticipated future

 27  land uses for the property and its surroundings, if ascertainable.

                                        72                         12334-02-0

  1    (ii) the objective of a cleanup and removal that the department deter-

  2  mines does constitute an immediate response cleanup shall be to effectu-

  3  ate  a prompt cleanup and removal of contamination to ensure restoration

  4  of the environment to pre-spill conditions.  For purposes of this  para-

  5  graph,  an  immediate  response  cleanup  shall  be one that comprises a

  6  discrete set of activities which can  be  undertaken  without  extensive

  7  investigation  and  evaluation, to prevent, mitigate, or remedy environ-

  8  mental damage or the consequences of environmental  damage  attributable

  9  to the discharge.

 10    (iii)  the remediation of soil as part of any cleanup and removal of a

 11  discharge under this article shall be performed in accordance  with  the

 12  soil cleanup levels promulgated pursuant to section 27-1316 of the envi-

 13  ronmental conservation law.

 14    (iv) for all cleanup and removal actions other than immediate response

 15  cleanups, the department shall place a notification in the environmental

 16  notice  bulletin  and shall notify individuals, groups, and/or organiza-

 17  tions that have expressed interest in or are affected  by  such  cleanup

 18  and  removal  actions upon: the initiation of an investigation, upon the

 19  successful completion of such investigation, and upon the submission  of

 20  a  proposed  remedy.  The  department  shall  accept public comments for

 21  forty-five days prior to approving such remedy.

 22    § 19. Paragraph (b) of subdivision 2 of section 176 of the  navigation

 23  law is relettered paragraph (c) and a new paragraph (b) is added to read

 24  as follows:

 25    (b)  The department shall determine cleanup levels for contaminants in

 26  the soil using site specific data  until  the  commissioner  promulgates

 27  rules  and  regulations pursuant to section 27-1315 and subdivision five

 28  of section 27-1316 of the environmental conservation law and  thereafter

                                        73                         12334-02-0

  1  shall  use  the  soil  cleanup  levels set forth in such rules and regu-

  2  lations, as may be amended.

  3    §  20.  Subdivision 1 of section 181 of the navigation law, as amended

  4  by chapter 712 of the laws of 1989, is amended to read as follows:

  5    1. ÕAnyå (a) Except as provided in paragraph (e) of this  subdivision,

  6  any  person who has discharged petroleum shall be strictly liable, with-

  7  out regard to fault, for all cleanup and removal costs  and  all  direct

  8  and  indirect  damages,  no matter by whom sustained, as defined in this

  9  section. In addition to cleanup and removal costs and damages, any  such

 10  person  who  is notified of such release and who did not undertake relo-

 11  cation of persons residing in the area of the  discharge  in  accordance

 12  with  paragraph (c) of subdivision seven of section one hundred seventy-

 13  six of this article, shall be liable to the fund for an amount equal  to

 14  two times the actual and necessary expense incurred by the fund for such

 15  relocation pursuant to section one hundred seventy-seven-a of this arti-

 16  cle.   Additionally, the department shall be entitled to a penalty in an

 17  amount no less than one and no more than three  times  all  cleanup  and

 18  removal  costs  if  it proves by a preponderance of the evidence that it

 19  has expended reasonable efforts as set forth in  this  subdivision.  For

 20  purposes  of  this  subdivision,  the department has expended reasonable

 21  efforts to obtain a voluntary commitment if such person is  informed  in

 22  writing  of  the  department's offer to negotiate a voluntary commitment

 23  and such responsible person does not respond to the department's  offer;

 24  or  responds by refusing to negotiate; or starts to negotiate and there-

 25  after discontinues same; or acts in bad faith in the  negotiation  proc-

 26  ess,  and  continues not to make such commitment after receiving a final

 27  written notification from the department that apprizes such  responsible

 28  person  that  failure to enter into the voluntary commitment will result

                                        74                         12334-02-0

  1  in the state's recovery of all costs, both direct and indirect, respect-

  2  ing such discharge; then the state shall  be  entitled  to  recover  all

  3  costs,  both  direct  and  indirect,  respecting such discharge that the

  4  state shall have incurred plus, to the extent that the state can show by

  5  a  preponderance  of  the  evidence that it has fulfilled the procedural

  6  steps in this paragraph, a penalty in an amount up to three  times,  but

  7  no  less  than one times, all costs, both direct and indirect, the state

  8  shall have incurred in carrying out same.

  9    (b) Notwithstanding paragraph (a) of  this  subdivision,  such  person

 10  shall only be liable to the state for an amount equal to all costs, both

 11  direct  and  indirect,  the  state  shall  have incurred respecting such

 12  discharge if such  person  can  establish  by  a  preponderance  of  the

 13  evidence  that for good cause shown, it failed and refused to enter into

 14  such voluntary commitment with the department.

 15    (c) Two or more owners and/or persons described in  paragraph  (a)  of

 16  subdivision  three  of  this  section may claim contribution among them-

 17  selves in an action brought in a court of  competent  jurisdiction,  and

 18  the  amount  of  contribution  to which any of them is entitled shall be

 19  equal to the excess paid by that person over  and  above  such  person's

 20  equitable  share  of costs. However, the amount of contribution to which

 21  any of them is entitled shall be three times the  excess  paid  by  that

 22  person  over and above such person's equitable share of costs associated

 23  with the carrying out of such person's obligations under  the  voluntary

 24  commitment with the department described in paragraph (a) of this subdi-

 25  vision  if one-third of such award shall be paid to the remedial program

 26  transfer fund established pursuant to section  ninety-seven-uuu  of  the

 27  state finance law and the court finds that:

                                        75                         12334-02-0

  1    (i)  the contribution defendant is a person described in paragraph (a)

  2  of this subdivision for such site;

  3    (ii)  the  contribution  plaintiff  gave  thirty  days  notice  to the

  4  contribution defendant of the plaintiff's intention to seek contribution

  5  in the event that the contribution defendant declined to participate  in

  6  the implementation of the contribution plaintiff's voluntary commitment;

  7    (iii)  the  contribution  defendant  failed or refused to enter into a

  8  settlement agreement with the contribution plaintiff; and

  9    (iv) the contribution plaintiff entered into  a  voluntary  commitment

 10  with the department to remediate the site.

 11    (d)  A person misidentified by the department as a person described in

 12  paragraph (a) of this subdivision but which  entered  into  a  voluntary

 13  commitment  with  the  department may recover from the New York environ-

 14  mental protection and spill compensation fund created under section  one

 15  hundred  seventy-nine  of  this article the costs it shall have incurred

 16  that are reasonable in light of the action agreed to be undertaken.

 17    (e) There shall be no liability under this subdivision  for  a  person

 18  otherwise  liable  who  can establish by a preponderance of the evidence

 19  that the discharge was caused solely by an act of God; an act of war; or

 20  an act or omission of a third party other than an employee or  agent  of

 21  such person, or than one whose act or omission occurs in connection with

 22  a  contractual  relationship, existing directly or indirectly, with such

 23  person (except where the sole  contractual  arrangement  arises  from  a

 24  published  tariff  and  acceptance  for  carriage by a common carrier or

 25  rail), if such person establishes by a  preponderance  of  the  evidence

 26  that such person is other than one that transports or supplies petroleum

 27  and  exercised  due care with respect to the petroleum concerned, taking

 28  into consideration the characteristics of such petroleum,  in  light  of

                                        76                         12334-02-0

  1  all relevant facts and circumstances, and took precautions against fore-

  2  seeable  acts  or omissions of any such third party and the consequences

  3  that could foreseeably result from such acts or omissions; or any combi-

  4  nation  of  them. For purposes of this paragraph, the term, "contractual

  5  relationship," includes, but is not limited to, land contracts, deeds or

  6  other instruments transferring title or possession, unless the  property

  7  on  which the discharge concerned is located was acquired by such person

  8  after the discharge on, in, or at such property, and such person  estab-

  9  lishes  one  or more of the circumstances described in subparagraph (i),

 10  (ii) or (iii) of this paragraph by a preponderance of the evidence:

 11    (i) At the time such person acquired the property such person did  not

 12  know and had no reason to know that any petroleum was discharged on, in,

 13  or at the property. To establish that such person has no reason to know,

 14  such person must have undertaken, at the time of acquisition, all appro-

 15  priate  inquiry  into  the  previous  ownership and uses of the property

 16  consistent with good commercial or customary practice in  an  effort  to

 17  minimize  liability. For purposes of the preceding sentence, the commis-

 18  sioner shall take into account any specialized knowledge  or  experience

 19  on  the  part  of such person, the relationship of the purchase price to

 20  the value of the property if uncontaminated, commonly known  or  reason-

 21  ably  ascertainable  information  about the property, the obviousness of

 22  the presence or likely presence of contamination at  the  property,  and

 23  the ability to detect such contamination by appropriate inspection; or

 24    (ii) Such person is a government entity which acquired the property by

 25  escheat, or through any other involuntary transfer or acquisition; or

 26    (iii) Such person acquired the property by inheritance or bequest, and

 27  that  such  person  exercised  due  care  with  respect to the petroleum

 28  concerned, taking into consideration the characteristics of such  petro-

                                        77                         12334-02-0

  1  leum,  in light of all relevant facts and circumstances and took precau-

  2  tions against foreseeable acts or omissions of any such third party  and

  3  the  consequences  that could foreseeably result from such acts or omis-

  4  sions.

  5    (f)  Nothing  in  this subdivision shall diminish the liability of any

  6  previous owner or operator of the property who would otherwise be liable

  7  under this subdivision. Notwithstanding this paragraph, if  such  person

  8  obtained  actual  knowledge  of  the discharge at the property when such

  9  person owned the property and then subsequently transferred ownership of

 10  the property to another person without disclosing such  knowledge,  such

 11  person shall be treated as a person responsible for the discharge and no

 12  defense  under this paragraph shall be available to such person. Nothing

 13  in this paragraph shall affect the liability under this subdivision of a

 14  person who, by any act  or  omission,  caused  or  contributed  to  such

 15  discharge of petroleum.

 16    §  21.  Subdivision 5 of section 180 of the navigation law, as amended

 17  by chapter 35 of the laws of 1985, is amended and a new subdivision 6 is

 18  added to read as follows:

 19    5. To disburse moneys from the fund  for  cleanup  and  removal  costs

 20  pursuant to a certification of claims by the commissionerÕ.å;

 21    6. To submit on an annual basis to the governor and legislature within

 22  sixty  days  of the end of the state fiscal year an independent audit of

 23  the New York environmental protection and spill compensation fund.

 24    § 22. Subdivision 4 of section 181 of the navigation law,  as  amended

 25  by  chapter  458 of the laws of 1978, is amended and a new subdivision 7

 26  is added to read as follows:

 27    4. ÕAnå Notwithstanding subdivision one of this section  and  subdivi-

 28  sions  one,  two, three and four of section one hundred seventy-two-a of

                                        78                         12334-02-0

  1  this article, an act or omission caused  solely  by  war,  sabotage,  or

  2  governmental  negligence  shall be the only defenses which may be raised

  3  by any owner or operator of a major facility or vessel responsible for a

  4  discharge in any action arising under the provisions of this article.

  5    7.  Notwithstanding  the  foregoing,  a  person  receiving a liability

  6  exemption or liability limitation under subdivision one of this  section

  7  or  under  subdivision  one,  two,  three or four of section one hundred

  8  seventy-two-a of this article shall be deemed to have waived  any  claim

  9  pursuant  to  subdivision  two of this section that such person may have

 10  against the New York environmental  protection  and  spill  compensation

 11  fund.

 12    §  23.  Section  183 of the navigation law, as added by chapter 845 of

 13  the laws of 1977, is amended to read as follows:

 14    § 183. Settlements.  1. The administrator shall attempt to promote and

 15  arrange a settlement between the claimant and the person responsible for

 16  the discharge. If the source of the  discharge  can  be  determined  and

 17  liability is conceded, the claimant and the alleged discharger may agree

 18  to  a  settlement  which shall be final and binding upon the parties and

 19  which will waive all recourse against the fund.

 20    2. After the successful implementation of an order  on  consent  which

 21  provides  for  the  cleanup  and  removal  of  the discharge, the person

 22  subject to the order shall submit to the department  a  written  certif-

 23  ication  prepared  by  an individual licensed or otherwise authorized in

 24  accordance with article one hundred forty-five of the education  law  to

 25  practice  the profession of engineering who shall have been in charge of

 26  the implementation of the  cleanup  and  removal  activities  undertaken

 27  pursuant  to such order substantiating that, at a minimum, such remedial

 28  activities satisfied the remedial requirements set forth in such order.

                                        79                         12334-02-0

  1    3. Upon the department's receipt of such certification, the department

  2  shall  review the final engineering report and the data submitted pursu-

  3  ant to the order as well as any other relevant information regarding the

  4  discharge. The department shall provide the person, upon  its  satisfac-

  5  tion  that  the  remedial  requirements  for  the  discharge  have  been

  6  achieved, with a covenant not to sue, binding upon the  state,  for  any

  7  liability,  including  any  future  liability  or  claim for the further

  8  cleanup or removal of petroleum relating to the discharge that  was  the

  9  subject  of  such order except that a person responsible for the cleanup

 10  and removal of the discharge pursuant to section one hundred  eighty-one

 11  of  this  article  shall  not  receive  a  release  for natural resource

 12  damages. Additionally, the state nonetheless shall reserve  all  of  its

 13  rights  concerning,  and  such covenant shall not extend to, any further

 14  investigation or remedial action the department deems  necessary,  as  a

 15  result of:

 16    (a) a failure to comply with the terms and conditions of the order;

 17    (b)  a  fraudulent demonstration that the cleanup levels identified in

 18  the order were reached;

 19    (c) a release or threatened release at  the  site  subsequent  to  the

 20  effective date of the order;

 21    (d) a change in the site's use subsequent to the effective date of the

 22  order  to a use requiring a lower level of residual contamination unless

 23  additional remedial activities are undertaken which shall meet the stan-

 24  dard for protection of public health and the environment that applies to

 25  remedial actions for such use under this article;

 26    (e) information received, in whole or in part, after the  department's

 27  execution  of  such  order, which indicates that the cleanup and removal

 28  performed, or to be performed, under such order will not be, or is  not,

                                        80                         12334-02-0

  1  protective of public health or the environment for such use of the site;

  2  or

  3    (f)  the  department  determines  that  the  remedy implemented is not

  4  protective of public health or the environment.

  5    4. The reservation contained in paragraph (d) of subdivision three  of

  6  this section shall not be reserved in the event a person remediates soil

  7  contamination to soil category 1, as that term is described in paragraph

  8  a of subdivision three of section 27-1316 of the environmental conserva-

  9  tion law.

 10    5.  The reservation contained in paragraph (f) of subdivision three of

 11  this section shall not be reserved for a person who is  not  responsible

 12  for  the  cleanup  and  removal  of the discharge pursuant to applicable

 13  principles of statutory or common law liability, or who is liable solely

 14  as a result of ownership or operation of the affected site subsequent to

 15  the disposal of hazardous waste or the discharge of  petroleum,  in  the

 16  event that such person remediates soil contamination to soil category 1,

 17  as that term is described in paragraph a of subdivision three of section

 18  27-1316 of the environmental conservation law.

 19    6.  The  covenant  not  to  sue  issued pursuant to this section shall

 20  extend to the person's successors  or  assigns  through  acquisition  of

 21  title to the site to which the liability release applies and to a person

 22  who  develops or otherwise occupies the site, provided that such persons

 23  act in good faith to adhere to the requirements of such order and  work-

 24  plan. However, such covenant does not extend, and cannot be transferred,

 25  to  a  person  who  is  responsible as of the date of the issuance of an

 26  order on consent for the discharge of petroleum according to section one

 27  hundred eighty-one of this article unless that person was party  to  the

 28  order on which such covenant was based. A notice of the order containing

                                        81                         12334-02-0

  1  such covenant shall be recorded and indexed as a declaration of covenant

  2  in  the office of the recording officer for the county or counties where

  3  such site is located in the manner prescribed by  article  nine  of  the

  4  real  property law within thirty days of signing the order if the person

  5  is an owner or within thirty days of acquiring title of the site if  the

  6  person is a prospective purchaser.

  7    7. The provisions of this title shall not affect an action or a claim,

  8  including  a  claim  for  contribution,  that a person who implements or

  9  completes an order executed by such person and the department  providing

 10  for  the  cleanup  and removal of the discharge pursuant to this article

 11  has or may have against a third party.

 12    8. Nothing in this section shall be construed  to  affect  either  the

 13  liability  of any person with respect to any costs, damages, or investi-

 14  gative or remedial activities that are not included in the order; or the

 15  department's authority to maintain an action or proceeding  against  any

 16  person who is not subject to the order.

 17    9. A person who has settled its liability to the department under this

 18  section  shall  not  be  liable  for  claims  for contribution regarding

 19  matters addressed in the order. Such settlement does not  discharge  any

 20  of  the persons responsible under law for the cleanup and removal of the

 21  discharge unless its terms so provide,  but  it  reduces  the  potential

 22  liability of the others by the amount of the settlement.

 23    10. Nothing in this section shall be construed to affect the authority

 24  of the department to reach settlement with other persons consistent with

 25  its authority under applicable law.

 26    §  24.    Subdivisions  24,  25  and  26 of section 1281 of the public

 27  authorities law, subdivision 24 as amended by chapter 857 of the laws of

 28  1982, subdivision 25 as amended by chapter 295 of the laws of  1994  and

                                        82                         12334-02-0

  1  subdivision  26 as added by chapter 282 of the laws of 1979, are amended

  2  to read as follows:

  3    24. "Hazardous waste" shall Õmean a waste which appears on the list or

  4  satisfies  the  characteristics promulgated by the commissioner of envi-

  5  ronmental conservation pursuant to section 27-0903 of the  environmental

  6  conservation  law  and  until,  but  not after, the promulgation of such

  7  list, a waste or combination of wastes, which because of  its  quantity,

  8  concentration, or physical, chemical or infectious characteristics may:

  9    a.  Cause,  or significantly contribute to an increase in mortality or

 10  an  increase  in  serious  irreversible  or  incapacitating   reversible

 11  illness; or

 12    b.  Pose  a substantial present or potential hazard to human health or

 13  the environment when improperly treated, stored,  transported,  disposed

 14  or  otherwise  managedå  have  the  same meaning as set forth in section

 15  27-1301 of the environmental conservation law.

 16    25. "Inactive hazardous waste disposal site" shall Õmean any  area  or

 17  structure used for the long term storage or final placement of hazardous

 18  waste including, but not limited to, dumps, landfills, lagoons and arti-

 19  ficial  treatment  ponds,  as  to  which  area or structure no permit or

 20  authorization issued by the department of environmental conservation  or

 21  a federal agency for the disposal of hazardous waste was in effect after

 22  the  effective  date of this title and any inactive area or structure on

 23  the National Priorities List  established  under  the  authority  of  42

 24  U.S.C.A.  Section  9605å  have  the same meaning as set forth in section

 25  27-1301 of the environmental conservation law.

 26    26. "Inactive hazardous waste disposal site  remedial  program"  shall

 27  Õmean  activities  undertaken  to  eliminate,  remove, abate, control or

 28  monitor health and/or environmental  hazards  or  potential  hazards  in

                                        83                         12334-02-0

  1  connection  with  inactive hazardous waste disposal sites or to treat or

  2  dispose of wastes and  waste  contaminated  materials  from  such  sites

  3  including, but not limited to, grading, contouring, trenching, grouting,

  4  capping,  excavation,  transporting,  incineration,  chemical treatment,

  5  biological treatment or the  construction  of  leachate  collection  and

  6  treatment  facilitieså  have  the  same  meaning as set forth in section

  7  27-1301 of the environmental conservation law.

  8    § 25. Section 1389-a of the public health law, as added by chapter 282

  9  of the laws of 1979, subdivision 1 as amended by chapter 857 of the laws

 10  of 1982 and subdivision 2 as amended by chapter 295 of the laws of 1994,

 11  is amended to read as follows:

 12    § 1389-a. Definitions.   1. "Hazardous waste"  means  Õa  waste  which

 13  appears  on the list or satisfies the characteristics promulgated by the

 14  commissioner of environmental conservation pursuant to  section  27-0903

 15  of  the  environmental  conservation  law  and until, but not after, the

 16  promulgation of such list, or a waste or combination  of  wastes,  which

 17  because  of its quantity, concentration, or physical, chemical or infec-

 18  tious characteristics may:

 19    a. Cause, or significantly contribute to an increase in  mortality  or

 20  an   increase  in  serious  irreversible  or  incapacitating  reversible

 21  illness; or

 22    b. Pose a substantial present or potential hazard to human  health  or

 23  the  environment  when improperly treated, stored, transported, disposed

 24  or otherwise managedå hazardous waste as defined in section  27-1301  of

 25  the environmental conservation law.

 26    2.  "Inactive hazardous waste disposal site" means Õany area or struc-

 27  ture used for the long term storage  or  final  placement  of  hazardous

 28  waste including, but not limited to, dumps, landfills, lagoons and arti-

                                        84                         12334-02-0

  1  ficial  treatment  ponds,  as  to  which  area or structure no permit or

  2  authorization issued by the department of environmental conservation  or

  3  a federal agency for the disposal of hazardous waste was in effect after

  4  the  effective  date of this title and any inactive area or structure on

  5  the National Priorities List  established  under  the  authority  of  42

  6  U.S.C.A. Section 9605å an inactive hazardous waste disposal site as that

  7  term  is  defined  in  section 27-1301 of the environmental conservation

  8  law.

  9    3. "Inactive hazardous waste disposal  site  remedial  program"  means

 10  Õactivities  undertaken  to eliminate, remove, abate, control or monitor

 11  health and/or environmental hazards or potential hazards  in  connection

 12  with  inactive  hazardous waste disposal sites or to treat or dispose of

 13  wastes and waste contaminated materials from such sites  including,  but

 14  not limited to, grading, contouring, trenching, grouting, capping, exca-

 15  vation,   transporting,  incineration,  chemical  treatment,  biological

 16  treatment or construction of leachate collection and  treatment  facili-

 17  tieså an inactive hazardous waste disposal site remedial program as that

 18  term  is  defined  in  section 27-1301 of the environmental conservation

 19  law.

 20    4. "Person" means an individual, trust,  firm,  joint  stock  company,

 21  corporation,  partnership, association, state, municipality, commission,

 22  political subdivision of a state,  public  benefit  corporation  or  any

 23  interstate body.

 24    a.  Such  term  includes  any  person  owning or operating an inactive

 25  hazardous waste disposal site but does not include a person  that  is  a

 26  lender that, without participating in the management of such site, holds

 27  indicia  of  ownership primarily to protect the security interest of the

 28  person in such site; nor does it include a person that is a lender  that

                                        85                         12334-02-0

  1  did  not  participate  in  management of such site prior to foreclosure,

  2  notwithstanding that the person forecloses on such site and after  fore-

  3  closure,  sells, re-leases (in the case of a lease finance transaction),

  4  or  liquidates  such site, maintains business activities, winds up oper-

  5  ations, undertakes in a non-negligent manner remedial actions under  the

  6  direction  of  the  department,  with respect to such site, or takes any

  7  other measure to preserve, protect, or prepare such site prior  to  sale

  8  or  disposition, if the person seeks to sell, re-lease (in the case of a

  9  lease finance transaction), or otherwise divest the person of such  site

 10  at the earliest practicable commercially reasonable time, on commercial-

 11  ly reasonable terms, taking into account market conditions and legal and

 12  regulatory requirements. For purposes of this paragraph:

 13    (i)  the term "participate in management" means actually participating

 14  in the management or operational affairs of  such  site;  and  does  not

 15  include  merely  having  the  capacity  to influence, or the unexercised

 16  right to control, such site's operations;

 17    (ii) a person that is a lender and that  holds  indicia  of  ownership

 18  primarily  to  protect a security interest in such site shall be consid-

 19  ered to participate in management only if, while the borrower  is  still

 20  in  possession of such site, the person exercises decisionmaking control

 21  over the environmental compliance related to such site,  such  that  the

 22  person has undertaken responsibility for the hazardous waste handling or

 23  disposal practices related to such site; or exercises control at a level

 24  comparable  to  that of a manager of such site, such that the person has

 25  assumed or manifested responsibility for the overall management of  such

 26  site  encompassing  day-to-day  decisionmaking  with respect to environ-

 27  mental compliance; or over all or substantially all of  the  operational

                                        86                         12334-02-0

  1  functions  (as distinguished from financial or administrative functions)

  2  of such site other than the function of environmental compliance;

  3    (iii) the term "participate in management" does not include performing

  4  an  act or failing to act prior to the time at which a security interest

  5  is created in such site;

  6    (iv) the term "participate in management" does not include  holding  a

  7  security  interest  or  abandoning  or  releasing  a  security interest;

  8  including in the terms of an extension of credit, or in  a  contract  or

  9  security  agreement  relating to the extension, a covenant, warranty, or

 10  other term or condition that relates to environmental compliance;  moni-

 11  toring  or enforcing the terms and conditions of the extension or credit

 12  or security interest; monitoring or undertaking one or more  inspections

 13  of  such  site;  requiring  a  response  action or other lawful means of

 14  addressing the release or threatened release of  a  hazardous  waste  in

 15  connection  with such site prior to, during, or on the expiration of the

 16  term of the extension of credit; providing financial or other advice  or

 17  counseling in an effort to mitigate, prevent, or cure default or diminu-

 18  tion  in the value of such site; restructuring, renegotiating, or other-

 19  wise agreeing to alter the terms and  conditions  of  the  extension  of

 20  credit  or  security  interest; exercising forbearance; exercising other

 21  remedies that may be available under applicable law for the breach of  a

 22  term  or  condition of the extension of credit or security agreement; or

 23  conducting in a non-negligent manner a remedial action directly or under

 24  the direction of the department, if the actions do not rise to the level

 25  of participating in management (within the meaning of subparagraphs  (i)

 26  and (ii) of this paragraph);

 27    (v)  the  term  "extension  of credit" includes a lease finance trans-

 28  action in which the lessor does not initially select  such  leased  site

                                        87                         12334-02-0

  1  and does not during the lease term control the daily operations or main-

  2  tenance  of  such  site; or that conforms with regulations issued by the

  3  appropriate federal banking agency (as defined in 12 USC  section  1813)

  4  or  the  superintendent  of  banks  or  with  regulations  issued by the

  5  National Credit Union Administrative Board, as appropriate;

  6    (vi) the term "financial or administrative function" includes a  func-

  7  tion  such  as  that  of  a  credit  manager,  accounts payable officer,

  8  accounts receivable officer, personal  manager,  comptroller,  or  chief

  9  financial officer, or a similar function;

 10    (vii)  the  terms  "foreclosure"  and  "foreclose" mean, respectively,

 11  acquiring and to acquire, such site through purchase  at  sale  under  a

 12  judgement  or  decree, power of sale, or nonjudicial foreclosure sale; a

 13  deed in lieu of foreclosure, or similar conveyance from  a  trustee;  or

 14  repossession,  if  such  site  was  security  for an extension of credit

 15  previously contracted; conveyance pursuant to  an  extension  of  credit

 16  previously  contracted,  including the termination of a lease agreement;

 17  or any other formal or informal manner by which the person acquires, for

 18  subsequent disposition, title to or possession of such site in order  to

 19  protect the security interest of the person;

 20    (viii)  the  term "lender" means an insured depository institution (as

 21  defined in 12 USC section 1813); an insured credit union (as defined  in

 22  12  USC  section  1752);  a bank or association chartered under the Farm

 23  Credit Act of 1971 (12 U.S.C. 2001 et seq.); a leasing or trust  company

 24  that  is  an  affiliate of an insured depository institution; any person

 25  (including a successor or assignee of any such person) that makes a bona

 26  fide extension of credit to or takes or  acquires  a  security  interest

 27  from  a nonaffiliated person; the Federal National Mortgage Association,

 28  the Federal Home Loan Mortgage  Corporation,  the  Federal  Agricultural

                                        88                         12334-02-0

  1  Mortgage  Corporation,  or  any  other entity that in a bona fide manner

  2  buys or sells loans or interests in loans;  a  person  that  insures  or

  3  guarantees against a default in the repayment of an extension of credit,

  4  or  acts as a surety with respect to an extension of credit, to a nonaf-

  5  filiated person; and a person that provides  title  insurance  and  that

  6  acquires such site as a result of assignment or conveyance in the course

  7  of underwriting claims and claims settlements;

  8    (ix)  the term "operational function" includes a function such as that

  9  of a facility or plant  manager,  operations  manager,  chief  operating

 10  officer, or chief executive officer; and

 11    (x)  the  term  "security interest" includes a right under a mortgage,

 12  deed of trust, assignment, judgment lien,  pledge,  security  agreement,

 13  factoring  agreement,  or lease and any other right accruing to a person

 14  to secure the repayment of money, the performance  of  a  duty,  or  any

 15  other obligation by a nonaffiliated person.

 16    b.  Such  term  includes  any  person  owning or operating an inactive

 17  hazardous waste disposal site but does not include the state of New York

 18  or a public corporation which acquired, and thereafter retained  without

 19  participating  in  the  management  of  such  site, ownership or control

 20  involuntarily by virtue of its function as sovereign. Neither the  state

 21  of  New  York  nor any public corporation shall incur under this chapter

 22  any liability as to matters within the jurisdiction of the department as

 23  a result of actions taken in response to an  emergency  created  by  the

 24  release  or  threatened  release  of  hazardous waste by another person,

 25  provided that such actions by the state or public  corporation  did  not

 26  constitute  reckless, willful, wanton or intentional misconduct. As used

 27  in this paragraph:

                                        89                         12334-02-0

  1    (i) "public corporation" means a public corporation as defined in  the

  2  general construction law;

  3    (ii) "involuntary acquisition of ownership or control" includes but is

  4  not limited to the following:

  5    (A)  acquisitions by the state or a public corporation in its capacity

  6  as   sovereign,   including   acquisitions   pursuant   to   abandonment

  7  proceedings, or escheat, or any other circumstance of involuntary acqui-

  8  sition in its capacity as sovereign;

  9    (B)  acquisitions  by the state or a public corporation, or its agent,

 10  acting as a conservator or receiver pursuant to a clear and direct stat-

 11  utory mandate or regulatory authority;

 12    (C) acquisitions of assets through foreclosure and its equivalents, or

 13  otherwise, by the state or a public corporation in the course of  admin-

 14  istering a loan, loan guarantee or loan insurance program;

 15    (D)  acquisitions  by  the  state  or a public corporation pursuant to

 16  seizure or forfeiture authority; and

 17    (E) acquisitions by the state or a public corporation as the result of

 18  tax delinquency purposes, provided, that such ownership  or  control  is

 19  not retained primarily for investment purposes.

 20    (iii) "management participation" means that the state or public corpo-

 21  ration  is  actually participating in the management or operation of the

 22  property but does not include the mere capacity to influence, ability to

 23  influence or unexercised right to control the operation of the property.

 24  Nothing contained in this paragraph affects the applicability  of  para-

 25  graph a  of this subdivision in favor of a holder of a security interest

 26  according to the terms thereof.

 27    c.  Such  term  includes  any  person  owning or operating an inactive

 28  hazardous waste disposal site, including a fiduciary; provided, however,

                                        90                         12334-02-0

  1  that such liability on the part of a  fiduciary  shall  not  exceed  the

  2  assets held in the fiduciary capacity if such person is not liable inde-

  3  pendently  of such person's ownership as a fiduciary or actions taken in

  4  a fiduciary capacity including, but not limited to, the fiduciary negli-

  5  gently  causing  or contributing to the release or threatened release of

  6  hazardous waste at such site.

  7    (i) For purposes of this paragraph:

  8    (A) the term, "fiduciary," means a person acting for  the  benefit  of

  9  another  party  as  a bona fide trustee; executor; administrator; custo-

 10  dian; guardian of estates or guardian ad litem;  receiver;  conservator;

 11  committee  of estates of incapacitated persons; personal representative;

 12  trustee (including a successor to a trustee) under an  indenture  agree-

 13  ment,  trust  agreement, lease, or similar financing agreement, for debt

 14  securities, certificates of interest or certificates of participation in

 15  debt securities, or other forms of indebtedness as to which the  trustee

 16  is not, in the capacity of trustee, the lender; or representative in any

 17  other  capacity  that  the  department,  after  providing public notice,

 18  determines to be similar to the various capacities previously  described

 19  in  this  paragraph; and does not include either a person that is acting

 20  as a fiduciary with respect to a trust or other  fiduciary  estate  that

 21  was  organized  for  the  primary purpose of, or is engaged in, actively

 22  carrying on a trade or business for profit unless  the  trust  or  other

 23  fiduciary  estate  was created as part of, or to facilitate, one or more

 24  estate plans or because of the incapacity  of  a  natural  person  or  a

 25  person  that acquires ownership or control of a property with the objec-

 26  tive purpose of avoiding liability of the person or any other person.

 27    (B) the term, "fiduciary capacity," means the capacity of a person  in

 28  holding title to a property, or otherwise having control of or an inter-

                                        91                         12334-02-0

  1  est  in  a property, pursuant to the exercise of the responsibilities of

  2  the person as a fiduciary.

  3    (ii)  Nothing  in  this  paragraph affects the rights or immunities or

  4  other defenses that are available under law  that  is  applicable  to  a

  5  person  subject  to  this  subdivision;  or  creates any liability for a

  6  person or a private right of action against a  fiduciary  or  any  other

  7  person.

  8    (iii)  Nothing  in  this  paragraph applies to a person if that person

  9  acts in a capacity other than that of a fiduciary or  in  a  beneficiary

 10  capacity  and  in  that capacity, directly or indirectly benefits from a

 11  trust or fiduciary relationship; or is a  beneficiary  and  a  fiduciary

 12  with  respect  to the same fiduciary estate and as a fiduciary, receives

 13  benefits that exceed customary or  reasonable  compensation,  and  inci-

 14  dental benefits, permitted under other applicable law.

 15    d.  Such  term  includes  any  person  owning or operating an inactive

 16  hazardous waste  disposal  site,  including  an  industrial  development

 17  authority  created  under  this  chapter, other than one that holds bare

 18  legal title to such site; has not participated with any party  responsi-

 19  ble  under law for the remediation of contamination in, on, or from such

 20  site to attempt to have such a party avoid its remedial  liability;  has

 21  not  exercised  any contractual rights it may have or had, if any, under

 22  the lease, guarantee, or any other financing agreement pursuant to which

 23  the industrial development authority would assume control over the actu-

 24  al operation of the site; and has not taken possession or control of the

 25  site. Nothing in this paragraph affects  the  rights  or  immunities  or

 26  other  defenses  that  are available under law that are applicable to an

 27  industrial development authority; or creates any liability for a  person

                                        92                         12334-02-0

  1  or a private right of action against an industrial development authority

  2  or any other person.

  3    5.  "Waste"  means Õany garbage, refuse, sludge from a waste treatment

  4  plant, water supply treatment plant, or air pollution control  facility,

  5  and other discarded material, whether or not such material may eventual-

  6  ly  be  used for some other purpose, including solid, liquid, semisolid,

  7  or contained gaseous material  resulting  from  industrial,  commercial,

  8  mining  and  agricultural  operations  or from community activities, and

  9  source, special nuclear or by-product material as defined in the  Atomic

 10  Energy  Act  of  1954, as amended, except as may be provided by existing

 11  agreements between the state of New  York  and  the  government  of  the

 12  United  States,  but  does  not  include  solid or dissolved material in

 13  domestic sewage, or solid or dissolved materials  in  irrigation  return

 14  flows  or  industrial  discharges  which  are  point  sources subject to

 15  permits under article seventeen of the environmental  conservation  lawå

 16  waste  as  that  term is defined in section 27-1301 of the environmental

 17  conservation law.

 18    § 26. Subdivision 4 of section 1389-b of the  public  health  law,  as

 19  added by chapter 282 of the laws of 1979, is amended to read as follows:

 20    4. (a) Any order issued pursuant to subdivision three of this section,

 21  other  than  one  issued  on consent of the person, shall be issued only

 22  after notice and the opportunity for hearing is provided to the  persons

 23  who  may  be the subject of such order. The commissioner shall determine

 24  which persons are responsible pursuant to said subdivision according  to

 25  applicable principles of statutory or common law liability. Such persons

 26  shall  be  entitled to raise any statutory or common law defenses at any

 27  such hearing and such defenses shall have the same force and  effect  at

 28  such hearings as they would have in a court of law. In the event a hear-

                                        93                         12334-02-0

  1  ing is held, no order shall be issued by the commissioner under subdivi-

  2  sion three of this section until a final decision has been rendered. Any

  3  such  order shall be reviewable pursuant to article seventy-eight of the

  4  civil  practice  law  and rules within thirty days after service of said

  5  order. The commissioner may request the participation  of  the  attorney

  6  general in such hearings.

  7    (b) There shall be no liability under this section for a person other-

  8  wise  liable  who  can establish by a preponderance of the evidence that

  9  the significant threat to  the  environment  attributable  to  hazardous

 10  waste  disposed  at an inactive hazardous waste disposal site was caused

 11  solely by an act of God; an act of war; or an act or omission of a third

 12  party other than an employee or agent of such person, or then one  whose

 13  act  or  omission  occurs in connection with a contractual relationship,

 14  existing directly or indirectly, with such person (except where the sole

 15  contractual arrangement arises from a published  tariff  and  acceptance

 16  for carriage by a common carrier or rail), if such person establishes by

 17  a preponderance of the evidence that such person exercised due care with

 18  respect  to the hazardous waste concerned, taking into consideration the

 19  characteristics of such hazardous waste, in light of all relevant  facts

 20  and circumstances and took precautions against foreseeable acts or omis-

 21  sions  of  any such third party and the consequences that could foresee-

 22  ably result from such acts or omissions; or any combination of them. For

 23  purposes  of  this  paragraph,  the  term,  "contractual  relationship,"

 24  includes,  but is not limited to, land contracts, deeds or other instru-

 25  ments transferring title or possession,  unless  the  real  property  on

 26  which  the  site  concerned is located was acquired by such person after

 27  the disposal or placement of the hazardous waste  on,  in,  or  at  such

 28  site,  and  such  person  establishes  one  or more of the circumstances

                                        94                         12334-02-0

  1  described in subparagraph (i), (ii) or (iii)  of  this  paragraph  by  a

  2  preponderance of the evidence:

  3    (i) At the time such person acquired the site such person did not know

  4  and  had no reason to know that any hazardous waste which is the subject

  5  of the significant threat determination was disposed of on,  in,  or  at

  6  the  site.    To  establish that such person has no reason to know, such

  7  person must have undertaken, at the time of acquisition, all appropriate

  8  inquiry into the previous ownership and uses  of  such  site  consistent

  9  with  good  commercial  or  customary  practice in an effort to minimize

 10  liability. For purposes of  the  preceding  sentence,  the  commissioner

 11  shall  take  into account any specialized knowledge or experience on the

 12  part of such person, the relationship of the purchase price to the value

 13  of the property if uncontaminated, commonly known  or reasonably  ascer-

 14  tainable information about the property, the obviousness of the presence

 15  or  likely presence of contamination at the property, and the ability to

 16  detect such contamination by appropriate inspection; or

 17    (ii) Such person is a government entity which  acquired  the  site  by

 18  escheat, or through any other involuntary transfer or acquisition; or

 19    (iii)  Such  person  acquired  the site by inheritance or bequest, and

 20  that such person exercised due care with respect to the hazardous  waste

 21  concerned, taking into consideration the characteristics of such hazard-

 22  ous  waste,  in  light  of all relevant facts and circumstances and took

 23  precautions against foreseeable acts or  omissions  of  any  such  third

 24  party  and the consequences that could foreseeably result from such acts

 25  or omissions.

 26    § 27. Section 1389-e of the public health law is REPEALED.

 27    § 28. Section 316-b of the real property law is amended  by  adding  a

 28  new subdivision 3 to read as follows:

                                        95                         12334-02-0

  1    3.  Each  recording officer shall record and index each declaration of

  2  restriction or any other declaration of covenants that shall be recorded

  3  under title  fourteen  of  article  twenty-seven  of  the  environmental

  4  conservation law or under any other provision of such law.

  5    § 29. Subdivisions 1, 2, 3, 6, paragraph (a) of subdivision 12, subdi-

  6  visions 13, 14 and 15 of section 97-b of the state finance law, subdivi-

  7  sions  1,  2 and paragraph (f) of subdivision 3 as amended and paragraph

  8  (g) as added by chapter 413 of the laws of 1996, paragraph (e) of subdi-

  9  vision 3 as amended by chapter 9 of the laws of 1994, subdivision  6  as

 10  amended  by chapter 38 of the laws of 1985, paragraph (a) of subdivision

 11  12 as amended by section 13 of part C of chapter 389 of the laws of 1997

 12  and subdivision 3 as amended and subdivisions 13, 14 and 15 as added  by

 13  chapter 512 of the laws of 1986, are amended and two new subdivisions 16

 14  and 17 are added to read as follows:

 15    1. There is hereby established in the custody of the state comptroller

 16  a nonlapsing revolving fund to be known as the "hazardous waste remedial

 17  fund"  which  shall  consist  of  a "site investigation and construction

 18  account" Õandå, an "industry fee transfer account," Õandå  an  "environ-

 19  mental  restoration  project  account,"  and  a "hazardous waste cleanup

 20  account".

 21    2. Such fund shall consist of all of the following:

 22    (a) all moneys Õappropriated for transferå transferred to  the  fund's

 23  site  investigation  and  construction  account; (b) all fines and other

 24  sums accumulated in the fund prior  to  April  first,  nineteen  hundred

 25  eighty-eight  pursuant to section 71-2725 of the environmental conserva-

 26  tion law for deposit in the fund's site investigation  and  construction

 27  account;  (c)  Õall  moneys  collected  or received by the department of

 28  taxation and finance pursuant to section 27-0923  of  the  environmental

                                        96                         12334-02-0

  1  conservation  law  for  deposit  in  the  fund's  industry  fee transfer

  2  account; (d) all moneys paid into the fund pursuant to  section  72-0201

  3  of  the  environmental  conservation law which shall be deposited in the

  4  fund's industry fee transfer account; (e)å all moneys paid into the fund

  5  pursuant  to  section one hundred eighty-six of the navigation law which

  6  shall be deposited in the fund's industry fee  transfer  account;  Õ(f)å

  7  (d)  all  moneys  paid  into the fund by municipalities for repayment of

  8  landfill closure loans made pursuant to former  title  five  of  article

  9  fifty-two  of  the  environmental  conservation  law  for deposit in the

 10  fund's site investigation and construction account; Õ(g)å (e) all monies

 11  recovered under section 56-0507 of the  environmental  conservation  law

 12  into the fund's environmental restoration project account; Õand (h)å (f)

 13  all  monies transferred from the remedial program transfer fund, created

 14  pursuant to subdivision five of section ninety-seven-uuu  of  the  state

 15  finance  law,  to  the  fund's  hazardous waste cleanup account; and (g)

 16  other moneys credited or transferred thereto  from  any  other  fund  or

 17  source  for  deposit  in  the fund's site investigation and construction

 18  account.

 19    3. Moneys of the hazardous waste remedial fund except  monies  in  the

 20  industry  fee  transfer  account,  when allocated, shall be available to

 21  Õthe department of environmental conservationå all state departments and

 22  agencies for the following purposes:

 23    (a) inactive hazardous waste disposal site remedial programs  pursuant

 24  to  section  27-1313  of  the environmental conservation law and section

 25  thirteen hundred eighty-nine-b of the public health law;

 26    (b) cleaning up or restoring to its  original  state  any  area  where

 27  hazardous  wastes  were disposed of or possessed unlawfully in violation

 28  of article twenty-seven of the environmental conservation law.  For  the

                                        97                         12334-02-0

  1  purposes of this section "the original state of the area" shall mean the

  2  reasonably  ascertainable condition of the property immediately prior to

  3  the unlawful disposal or, if  it  is  impracticable  to  determine  such

  4  condition,  then it is the reasonable environmentally sound condition of

  5  the area;

  6    (c) inactive hazardous waste site identification,  classification  and

  7  investigation  actions  including testing, analyses, record searches and

  8  other expenditures necessary to develop  the  state  inactive  hazardous

  9  waste  disposal  site remedial plan required pursuant to section 27-1305

 10  of the environmental conservation law;

 11    (d) financing the non-federal share of the cost of clean up, and  site

 12  remediation activities as well as post-closure operation and maintenance

 13  costs,  pursuant  to  the  federal Comprehensive Environmental Response,

 14  Compensation and Liability Act of 1980;

 15    (e) emergency response action to clean up spills or abate other public

 16  health or environmental hazards involving hazardous wastes except  those

 17  provided for under the New York state environmental protection and spill

 18  compensation fund;

 19    (f) Õthe study of hazardous substance waste disposal sites pursuant to

 20  section  27-1316  of  the environmental conservation law and section one

 21  thousand three hundred eighty-nine-e of the public health law; and

 22    (g)å to undertake such remedial measures as the department of environ-

 23  mental conservation may determine necessary due to environmental  condi-

 24  tions  related  to the property subject to an agreement to provide state

 25  assistance under title five of article fifty-six  of  the  environmental

 26  conservation law that were unknown to such department at the time of its

 27  approval of such agreement which indicates that conditions on such prop-

 28  erty  are not sufficiently protective of human health for its reasonably

                                        98                         12334-02-0

  1  anticipated uses or due to information received, in whole  or  in  part,

  2  after  such  department's approval of such agreement's final engineering

  3  report and certification, which indicates that such agreement's remedial

  4  activities  are  not  sufficiently  protective  of human health for such

  5  property's reasonably anticipated uses; and, respecting  the  monies  in

  6  the  environmental  restoration project account in excess of ten million

  7  dollars, shall provide state assistance  under  title  five  of  article

  8  fifty-six of the environmental conservation law;

  9    (g)  with respect to moneys in the hazardous waste cleanup account, to

 10  pay the reasonable costs incurred by the state in overseeing implementa-

 11  tion of voluntary agreements and conducting  state  remediation  actions

 12  under  title  fourteen  of  article  twenty-seven  of  the environmental

 13  conservation law;

 14    (h) with respect to moneys in the hazardous waste cleanup account,  to

 15  provide  state  assistance pursuant to section nine hundred seventy-r of

 16  the general municipal law.

 17    6. The commissioner of the department  of  environmental  conservation

 18  shall  make  all  reasonable  efforts  to recover the full amount of any

 19  funds expended from the fund pursuant to paragraph  (a)  of  subdivision

 20  three  of this section through litigation or cooperative agreements with

 21  responsible persons. Any and all moneys recovered or reimbursed pursuant

 22  to this section through voluntary agreements or court  orders  shall  be

 23  deposited  with the comptroller and credited to the account of such fund

 24  from which such expenditures were  made;  provided,  however,  that  any

 25  moneys  recovered  or  reimbursed  for funds expended from the hazardous

 26  waste cleanup account shall be deposited in the remedial program  trans-

 27  fer fund.

                                        99                         12334-02-0

  1    (a)  The  comptroller  shall,  on July first, nineteen hundred eighty-

  2  eight and  on  each  succeeding  July  first  until  such  time  as  the

  3  surcharges required pursuant to subdivision fourteen of this section are

  4  imposed,  estimate the amount of revenues to be received by the industry

  5  fee  transfer  account of this fund in the next succeeding twenty months

  6  and the transfers which will be required to  be  made  during  the  same

  7  period.  When  calculating the estimate of industry fee transfer account

  8  revenues available for the  purpose  of  certifying,  pursuant  to  this

  9  subdivision,  when  such  account's balance will be insufficient to make

 10  the transfer required by subdivision eleven of this section,  the  comp-

 11  troller  shall  add  to the amount estimated to actually be available an

 12  additional credit factor as determined by paragraph (b) of this subdivi-

 13  sion. If the comptroller  determines  that  the  industry  fee  transfer

 14  account  will,  at  any  time during the succeeding twenty month period,

 15  lack sufficient funds to make the transfer required by subdivision elev-

 16  en of this section, the comptroller shall so certify to the Õstate super

 17  fund management board, created pursuant to section 27-1319 of the  envi-

 18  ronmental conservation law, and to theå governor and the legislature.

 19    13. ÕUpon the receipt of a certification provided pursuant to subdivi-

 20  sion  twelve of this section, the state superfund management board shall

 21  review and analyze the historical pattern of  revenue  received  by  the

 22  industry  fee  transfer  account  and the long term projection of future

 23  transfers from such account, and shall  report  on  or  before  December

 24  first  of  such year to the governor and the legislature its recommenda-

 25  tions, if any, as to the sources of additional revenues which  could  be

 26  used  to supplement the revenues to be received by such fund in order to

 27  achieve the equal sharing of debt service costs as implemented in subdi-

 28  vision nine of this section.

                                        100                        12334-02-0

  1    14.å In the absence of further direction by law, effective April first

  2  of the fiscal year immediately following the certification by the  comp-

  3  troller  made pursuant to subdivision twelve of this section, surcharges

  4  in the following amount shall be imposed: (a) twenty-five percent of the

  5  fees  imposed  by  sections  72-0402  and  72-0502  of the environmental

  6  conservation law. Notwithstanding any other  provision  of  law  to  the

  7  contrary,  moneys  collected  from  such surcharge shall be deposited in

  8  their entirety to the industry fee transfer account established pursuant

  9  to subdivision one of this  section;  (b)  fifty  percent  of  the  fees

 10  imposed by section 27-0923 of the environmental conservation law, except

 11  for  those  fees contained in paragraphs b and c of subdivision one, and

 12  paragraph b of subdivision two of such section, which  shall  be  exempt

 13  from  such  surcharge.  Moneys  collected  from  such surcharge shall be

 14  deposited to the industry fee transfer account established  pursuant  to

 15  subdivision one of this section.

 16    Õ15.å 14. On and after the date of such certification, the comptroller

 17  shall  maintain  records  with  respect  to such account to reflect each

 18  unpaid transfer for the period during which it is unpaid. On  and  after

 19  such  date,  any  deposits in the industry fee transfer account shall be

 20  immediately transferred to the general fund of the state until an amount

 21  equal to the total of any  unpaid  transfers  and  accumulated  interest

 22  shall have been transferred to the general fund.

 23    15.  The  comptroller  shall,  on the first day of July succeeding the

 24  state fiscal year during which the bonds  and  notes  issued  under  the

 25  environmental quality bond act of nineteen hundred eighty-six to finance

 26  the  cleanup  of  inactive  hazardous  waste disposal sites in aggregate

 27  exceed ninety-five percent of the amount  authorized  pursuant  to  such

 28  bond  act,  estimate the total debt service of such bonds and notes. The

                                        101                        12334-02-0

  1  comptroller shall also estimate the state fiscal year in which  the  sum

  2  of  the transfers required by subdivision eleven of this section and the

  3  additional credit factor as determined by paragraph (b)  of  subdivision

  4  twelve  of  this  section  exceeds  fifty  percent of the estimated debt

  5  service for such bonds and notes. The comptroller shall certify  to  the

  6  governor  and the legislature the estimated state fiscal year when fifty

  7  percent of such estimated debt service will be exceeded.

  8    16. Notwithstanding any law to the contrary, effective April first  of

  9  the  state  fiscal  year  succeeding  the state fiscal year certified in

 10  subdivision fifteen of this section, all moneys currently  deposited  in

 11  the  industry  fee transfer account of the hazardous waste remedial fund

 12  pursuant to subdivision two of this section shall be  deposited  in  the

 13  remedial  program  transfer fund.  Further, effective April first of the

 14  state fiscal year following such  certification,  subdivisions  thirteen

 15  and fourteen of this section shall be deemed repealed.

 16    17.  Notwithstanding  any  law to the contrary, and in accordance with

 17  section four of the state finance law, the comptroller is hereby author-

 18  ized and directed, upon the request of the director of  the  budget,  to

 19  transfer  moneys from the site investigation and construction account of

 20  the hazardous waste remedial fund to the hazardous waste cleanup account

 21  of the hazardous waste remedial fund.

 22    § 30. The state finance law is amended by adding a new section  97-uuu

 23  to read as follows:

 24    §  97-uuu.  Remedial  program transfer fund. 1. There is hereby estab-

 25  lished in the joint custody of the comptroller and the  commissioner  of

 26  taxation  and finance a special fund to be known as the remedial program

 27  transfer fund.

 28    2. Such fund shall consist of all of the following:

                                        102                        12334-02-0

  1    (a) registration fees collected pursuant to subdivision two of section

  2  17-1009 of the environmental conservation law for deposit in this fund;

  3    (b)  all license fees, fines and penalties collected pursuant to para-

  4  graph (b) of subdivision one and paragraph (a) of  subdivision  four  of

  5  section  one  hundred  seventy-four  of  the  navigation  law, penalties

  6  collected pursuant to paragraphs (b) and  (c)  of  subdivision  four  of

  7  section  one  hundred  seventy-four-a  of  the  navigation  law,  moneys

  8  collected pursuant to section one hundred eighty-seven of the navigation

  9  law, and all penalties collected pursuant to section one  hundred  nine-

 10  ty-two of the navigation law;

 11    (c)  all  penalties collected pursuant to paragraph (c) of subdivision

 12  one and paragraph (b) of subdivision four of section one hundred  seven-

 13  ty-four  of the navigation law effective April first of the state fiscal

 14  year succeeding the state fiscal year certified in  subdivision  fifteen

 15  of section ninety-seven-b of this article;

 16    (d)  moneys  recovered  pursuant to subdivision six of section ninety-

 17  seven-b of this article for deposit in this fund;

 18    (e) all fees paid into the fund pursuant to paragraph b of subdivision

 19  one of section 72-0201 of the environmental conservation law;

 20    (f) all moneys collected or received by the department of taxation and

 21  finance pursuant to section 27-0923 of  the  environmental  conservation

 22  law;

 23    (g)  all  moneys paid into the fund pursuant to subdivision sixteen of

 24  section ninety-seven-b of this article;

 25    (h) all fees paid into the fund pursuant to  section  72-0403  of  the

 26  environmental conservation law;

 27    (i)  all  moneys paid into the fund pursuant to section 27-1415 of the

 28  environmental conservation law;

                                        103                        12334-02-0

  1    (j) other moneys credited or transferred thereto from any  other  fund

  2  or source for deposit in the fund;

  3    (k)  all  interest accrued on any such moneys deposited into the fund;

  4  and

  5    (l) all moneys paid pursuant to subdivision ten of section 27-1313  of

  6  the  environmental  conservation  law and subdivision one of section one

  7  hundred eighty-one of the navigation law.

  8    3. Notwithstanding any law to the contrary,  and  in  accordance  with

  9  section  four  of this chapter, the comptroller is hereby authorized and

 10  directed, upon the request of the director of the budget, for each state

 11  fiscal year to transfer from the general fund to  this  fund  up  to  an

 12  amount  equivalent  to the projected amount of moneys to be deposited or

 13  transferred into this fund pursuant to subdivision two of  this  section

 14  for each such state fiscal year.

 15    4.  Revenues in the remedial program transfer fund shall be kept sepa-

 16  rate and shall not be commingled with any other moneys in the custody of

 17  the comptroller. All deposits of such revenues shall, if required by the

 18  comptroller, be secured by obligations of the United States  or  of  the

 19  state  having  a  market  value equal at all times to the amount of such

 20  deposits and all banks and trust companies are authorized to give  secu-

 21  rity  for  such  deposits.  Any such revenues in such fund may, upon the

 22  discretion of the comptroller, be invested in obligations in  which  the

 23  comptroller  is authorized to invest pursuant to section ninety-eight of

 24  this article.

 25    5. Notwithstanding any law to the contrary,  and  in  accordance  with

 26  section  four  of this chapter, the comptroller is hereby authorized and

 27  directed, upon the request of the director of the  budget,  to  transfer

 28  moneys  deposited  in  the  remedial program transfer fund, and interest

                                        104                        12334-02-0

  1  accrued thereon, to the environmental protection and oil  spill  compen-

  2  sation  fund  or to the hazardous waste cleanup account of the hazardous

  3  waste remedial fund.

  4    §  31. Paragraph (a) of subdivision 2 of section 179 of the navigation

  5  law, as amended by chapter 83 of the laws of 1995, is amended and a  new

  6  subdivision 3 is added to read as follows:

  7    (a)  An  account  which  shall  be  credited with all license fees and

  8  penalties collected pursuant to paragraph (b)  of  subdivision  one  and

  9  paragraph (a) of subdivision four of section one hundred seventy-four of

 10  this  article, penalties collected pursuant to paragraph (b) of subdivi-

 11  sion four of section one hundred seventy-four-a of this  article,  money

 12  collected  pursuant to section one hundred eighty-seven of this article,

 13  all penalties collected pursuant to section one  hundred  ninety-two  of

 14  this  article, all moneys transferred from the remedial program transfer

 15  fund pursuant to subdivision five of  section  ninety-seven-uuu  of  the

 16  state  finance  law for deposit in the New York environmental protection

 17  and spill compensation fund and registration fees collected pursuant  to

 18  subdivision  two  of  section  17-1009 of the environmental conservation

 19  law.

 20    3. Notwithstanding any general or special law  to  the  contrary,  all

 21  monies  collected pursuant to paragraph (b) of subdivision one and para-

 22  graph (a) of subdivision four of section  one  hundred  seventy-four  of

 23  this  article, penalties collected pursuant to paragraph (c) of subdivi-

 24  sion one and paragraph (b) of subdivision four of  section  one  hundred

 25  seventy-four  of  this article effective April first of the state fiscal

 26  year succeeding the state fiscal year certified in  subdivision  fifteen

 27  of  section ninety-seven-b of the state finance law, penalties collected

 28  pursuant to paragraphs (b) and (c) of subdivision four  of  section  one

                                        105                        12334-02-0

  1  hundred  seventy-four-a  of  this  article,  money collected pursuant to

  2  section  one  hundred  eighty-seven  of  this  article,  all   penalties

  3  collected  pursuant  to  section one hundred ninety-two of this article,

  4  and  registration  fees collected pursuant to subdivision two of section

  5  17-1009 of the environmental conservation law shall be deposited in  the

  6  remedial program transfer fund in the fiscal year beginning April first,

  7  two thousand one, and for each fiscal year thereafter.

  8    §  32. Subdivision 2 of section 17-1009 of the environmental conserva-

  9  tion law, as amended by chapter 83 of the laws of 1995,  is  amended  to

 10  read as follows:

 11    2.  All  owners  shall  register the facility with the department. The

 12  department is authorized to assess a fee according to a  schedule  based

 13  on the size and type of facility, not to exceed Õtwo hundred fiftyå five

 14  hundred  dollars  per  facility.  Such  fee shall be paid at the time of

 15  registration or registration  renewal.  Registration  shall  be  renewed

 16  every  five years or whenever title to a facility is transferred, which-

 17  ever occurs first.   All fees collected  pursuant  to  this  subdivision

 18  shall  be deposited in the New York environmental and spill compensation

 19  fund established pursuant to section one  hundred  seventy-nine  of  the

 20  navigation  lawÕ.å; provided, however, that such fees shall be deposited

 21  in the remedial program transfer fund in the fiscal year beginning April

 22  first, two thousand one, and for each fiscal year thereafter.  The owner

 23  must submit with  each  application  for  registration  or  registration

 24  renewal, a five-year fee as follows:

 25  Combined Storage Capacity at Facility             5- Year Fee

 26  Greater than 1,000 to 2,000 gallons               $100 per facility

 27  Greater than 2,000 gallons to                     $300 per facility

 28  Less than 5,000 gallons

                                        106                        12334-02-0

  1  5,000 gallons to less than 400,000 gallons        $500 per facility

  2    §  33.  Subdivision 3 of section 362 of chapter 83 of the laws of 1995

  3  amending the state finance law and other laws relating to  bonds,  notes

  4  and  revenues,  as  amended by section 2 of part E of chapter 413 of the

  5  laws of 1999, is amended to read as follows:

  6    3. Sections fifteen through seventeen of this act  shall  take  effect

  7  immediately and shall be deemed to have been in full force and effect on

  8  and after April 1, 1995 Õ, and shall expire and be deemed repealed April

  9  1, 2004å;

 10    §  34. Paragraph b of subdivision 1 of section 71-2725 of the environ-

 11  mental conservation law, as amended by chapter 60 of the laws  of  1993,

 12  is amended to read as follows:

 13    b.  All  penalties  and  fines collected pursuant to sections 71-2705,

 14  71-2721 and 71-2723 of this title shall be paid Õinto the  general  fund

 15  to  the credit of the state purposes accountå to the credit of the reme-

 16  dial program transfer fund established by  section  ninety-seven-uuu  of

 17  the state finance law.

 18    §  35.  Paragraph b of subdivision 1, subdivision 9 and paragraph a of

 19  subdivision 11 of section 72-0201 of the environmental conservation law,

 20  paragraph b of subdivision 1 and subdivision 9 as added by chapter 38 of

 21  the laws of 1985 and paragraph a of subdivision 11 as amended by section

 22  24 of part A of chapter 58 of the laws of 1998, are amended  and  a  new

 23  paragraph e of subdivision 1 is added to read as follows:

 24    b.  Notwithstanding  any  general or special law to the contrary, one-

 25  half of all monies collected  by  the  department  pursuant  to  section

 26  72-0402  and  section  72-0502 of this article shall be deposited in the

 27  Õhazardous wasteå remedial program transfer fund,  created  pursuant  to

 28  section Õninety-seven-bå ninety-seven-uuu of the state finance law.

                                        107                        12334-02-0

  1    e.    Notwithstanding  any general or special law to the contrary, all

  2  monies collected by the department pursuant to section 72-0403  of  this

  3  article  shall be deposited in the remedial program transfer fund estab-

  4  lished pursuant to section ninety-seven-uuu of the state finance law.

  5    9.  a.  In  the  event  a penalty or interest is collected pursuant to

  6  subdivision five or six of this  section  for  fees  due  under  section

  7  72-0402,  or section 72-0502 of this article, one-half of the penalty or

  8  interest shall be deposited by the department in the  Õhazardous  wasteå

  9  remedial program transfer fund.

 10    b.  In the event a penalty or interest is collected pursuant to subdi-

 11  vision five or six of this section for fees due under section 72-0403 of

 12  this article, such penalty or interest shall be deposited in the remedi-

 13  al program transfer fund.

 14    a. All fees collected pursuant to this article Õexcept fees  collected

 15  pursuant  to  paragraphs  b, c and d of subdivision one of this sectionå

 16  shall be paid into the environmental conservation special  revenue  fund

 17  to  the  credit  of  the environmental regulatory account, unless herein

 18  provided otherwise.

 19    § 36. The environmental conservation law is amended by  adding  a  new

 20  section 72-0403 to read as follows:

 21  § 72-0403. Remedial program surcharges.

 22    1. All generators shall submit annually to the department a fee in the

 23  amount to be determined as follows:

 24    a.  Four  thousand  dollars for generators of equal to or greater than

 25  fifteen tons per year and less than or equal  to  twenty-five  tons  per

 26  year of hazardous waste;

                                        108                        12334-02-0

  1    b.  Nine  thousand  dollars for generators of greater than twenty-five

  2  tons per year and less than or equal to fifty tons per year of hazardous

  3  waste;

  4    c. Fourteen thousand dollars for generators of greater than fifty tons

  5  per year and less than or equal to seventy-five tons per year of hazard-

  6  ous waste;

  7    d.  Nineteen  thousand dollars for generators of greater than seventy-

  8  five tons per year and less than or equal to one hundred tons  per  year

  9  of hazardous waste;

 10    e.  Twenty-four  thousand  dollars  for generators of greater than one

 11  hundred tons per year and less than or equal to five  hundred  tons  per

 12  year of hazardous waste;

 13    f. Eighty thousand dollars for generators of greater than five hundred

 14  tons  per  year  and less than or equal to one thousand tons per year of

 15  hazardous waste;

 16    g. Eighty-five thousand dollars for generators  of  greater  than  one

 17  thousand  tons  per year and less than or equal to two thousand tons per

 18  year of hazardous waste;

 19    h. One hundred ten thousand dollars for generators of greater than two

 20  thousand tons per year and less than or equal to three thousand tons per

 21  year of hazardous waste;

 22    i. One hundred thirty-five thousand dollars for generators of  greater

 23  than  three  thousand tons per year and less than or equal to five thou-

 24  sand tons per year of hazardous waste;

 25    j. One hundred sixty thousand dollars for generators of  greater  than

 26  five  thousand tons per year and less than or equal to ten thousand tons

 27  per year of hazardous waste;

                                        109                        12334-02-0

  1    k. Three hundred sixty thousand dollars for generators of greater than

  2  ten thousand tons per year of hazardous waste;

  3    l.  Six  thousand  dollars  for generators of equal to or greater than

  4  fifteen tons per year of hazardous wastewater, payable  in  addition  to

  5  the  fees  for  hazardous  wastes, other than wastewater, as required by

  6  this subdivision.

  7    2. No fee shall be payable for waste resulting from services which are

  8  provided:

  9    a. under a contract with the  department,  or  with  the  department's

 10  approval  and  in compliance with department regulations, or pursuant to

 11  an order of the department, the United States  environmental  protection

 12  agency  or a court, related to the cleanup or remediation of a hazardous

 13  materials or hazardous waste spill,  discharge,  or  surficial  cleanup,

 14  pursuant  to this chapter, other than section 27-1313 of this chapter or

 15  a removal action pursuant to the Comprehensive  Environmental  Response,

 16  Compensation and Liability Act (42 U.S.C.  9601 et seq.); or

 17    b.  under  a  contract  for,  or with the department's approval and in

 18  compliance with department regulations for, the cleanup and removal of a

 19  petroleum spill or discharge, pursuant to subdivision seven  of  section

 20  one hundred seventy-six of the navigation law; or

 21    c.  under  the  order  of a court, the department or the department of

 22  health, or the United States environmental protection agency related  to

 23  an inactive hazardous waste disposal site pursuant to section 27-1313 of

 24  this  chapter,  section  thirteen  hundred  eighty-nine-b  of the public

 25  health law, or the Comprehensive  Environmental  Response,  Compensation

 26  and Liability Act (42 U.S.C. 9601 et seq.); or

 27    d.  voluntarily  and  without  expectation of monetary compensation in

 28  accordance with subdivision one of section 27-1321 of this chapter; or

                                        110                        12334-02-0

  1    e. under permit or order requiring corrective action pursuant to title

  2  nine of article twenty-seven of this chapter or the  Resource  Conserva-

  3  tion and Recovery Act (42 U.S.C. 6901 et seq.).

  4    §  37. Paragraph b of subdivision 4 of section 27-0923 of the environ-

  5  mental conservation law, as added by chapter 38 of the laws of 1985,  is

  6  amended to read as follows:

  7    b.  All moneys collected or received by the department of taxation and

  8  finance pursuant to this section shall be deposited daily to the  credit

  9  of  the comptroller with such responsible banks, banking houses or trust

 10  companies as may be designated by the comptroller. Such  deposits  shall

 11  be  kept  separate  and apart from all other moneys in the possession of

 12  the comptroller. The comptroller shall require  adequate  security  from

 13  all such depositories. Of the revenues collected under this section, the

 14  comptroller  shall  retain in his hands such amounts as the commissioner

 15  of taxation and finance may determine to be necessary for refunds  under

 16  this  section  and  the comptroller shall pay any refunds to which those

 17  liable for special assessments shall be entitled under the provisions of

 18  this section. The comptroller, after reserving the amount  to  pay  such

 19  refunds,  shall,  on  or  before  the  tenth  day of each month, pay all

 20  special assessments, interest and penalties collected under this section

 21  and remaining to his credit in  such  banks,  banking  houses  or  trust

 22  companies  at  the  close  of  business on the last day of the preceding

 23  month into the Õhazardous wasteå remedial program transfer fund  created

 24  pursuant  to  section  Õninety-seven-bå  ninety-seven-uuu  of  the state

 25  finance law. Within thirty days after each quarterly reporting date, the

 26  comptroller shall certify the amount of special assessments  under  this

 27  section  deposited  in  the  Õhazardous wasteå remedial program transfer

 28  fund during the preceding quarter and the  cumulative  amount  collected

                                        111                        12334-02-0

  1  since  the  start  of  the  current calendar year, and shall submit such

  2  certification to the governor and the chairman  of  the  senate  finance

  3  committee and the chairman of the assembly ways and means committee.

  4    § 38. Intentionally omitted.

  5    §  39.  The  tax  law is amended by adding a new section 21 to read as

  6  follows:

  7    § 21. Brownfield redevelopment tax credit. (a)  Allowance  of  credit.

  8  (1) General. A taxpayer subject to tax under article nine, nine-A, twen-

  9  ty-two,  thirty-two  or  thirty-three of this chapter shall be allowed a

 10  credit against such tax, pursuant to the provisions referenced in subdi-

 11  vision (e) of this section.  Such credit shall be allowed  with  respect

 12  to  a qualified site, as such term is defined in paragraph one of subdi-

 13  vision (b) of this section. The amount of the credit shall be the sum of

 14  the credit components specified in paragraphs  two  and  three  of  this

 15  subdivision.

 16    (2)  Site  preparation  credit  component. The site preparation credit

 17  component shall be equal to the applicable percentage of the site prepa-

 18  ration costs paid or incurred by the taxpayer with respect to  a  quali-

 19  fied  site.  The credit component amount so determined with respect to a

 20  site's qualification for a remediation certificate shall be allowed  for

 21  the  taxable year in which the effective date of the remediation certif-

 22  icate occurs.  The credit component amount determined  other  than  with

 23  respect  to  such qualification shall be allowed for the taxable year in

 24  which the improvement to which the applicable costs apply is  placed  in

 25  service.

 26    (3)  Tangible  property credit component. The tangible property credit

 27  component shall be equal to the applicable percentage  of  the  cost  or

 28  other basis for federal income tax purposes of tangible personal proper-

                                        112                        12334-02-0

  1  ty  and  other  tangible  property,  including  buildings and structural

  2  components of buildings, which constitute qualified  tangible  property.

  3  The credit component amount so determined shall be allowed for the taxa-

  4  ble  year in which such qualified tangible property is placed in service

  5  on a qualified site with respect to which a remediation certificate  has

  6  been  issued  to  the  taxpayer.  The tangible property credit component

  7  shall be allowed with respect to property leased to a second party  only

  8  if  such  second  party  is  either  (i) not a party responsible for the

  9  disposal of hazardous waste or the discharge of petroleum  at  the  site

 10  according to applicable principles of statutory or common law liability,

 11  or (ii) a party responsible according to applicable principles of statu-

 12  tory  or  common  law  liability if such party's liability arises solely

 13  from operation of the site subsequent to the disposal of hazardous waste

 14  or the discharge of petroleum, and is so certified by  the  commissioner

 15  of  environmental  conservation at the request of the taxpayer, pursuant

 16  to section 27-1413 of the environmental conservation law.  Notwithstand-

 17  ing any other provision of law to the contrary, in the case of allowance

 18  of credit under this section to such a lessor,  the  commissioner  shall

 19  have  the  authority  to  reveal  to  such  lessor any information, with

 20  respect to the issue of qualified use of property by the  lessee,  which

 21  is  the  basis for the denial in whole or in part, or for the recapture,

 22  of the credit claimed by such lessor.

 23    (4) Applicable percentage.  For purposes of paragraphs two  and  three

 24  of  this  subdivision, the applicable percentage shall be ten percent in

 25  the case of credits claimed under article nine,  nine-A,  thirty-two  or

 26  thirty-three,  and  eight  percent  in the case of credits claimed under

 27  article twenty-two, of this chapter. Provided, however, as  provided  in

 28  section  27-1413  of  the environmental conservation law, if the remedi-

                                        113                        12334-02-0

  1  ation certificate indicates that the soil on the qualified site has been

  2  remediated to soil category 1 as that term is described in  paragraph  a

  3  of  subdivision  three of section 27-1316 of the environmental conserva-

  4  tion  law, the applicable percentage shall be twelve percent in the case

  5  of credits claimed under article nine,  nine-A,  thirty-two  or  thirty-

  6  three,  and  ten  percent  in  the case of credits claimed under article

  7  twenty-two, of this chapter.

  8    (b) Definitions. As used in this section, the  following  terms  shall

  9  have the following meanings:

 10    (1) Qualified site. A "qualified site" is a site with respect to which

 11  a remediation certificate has been issued to the taxpayer by the commis-

 12  sioner  of environmental conservation pursuant to section 27-1413 of the

 13  environmental conservation law.

 14    (2) Site preparation costs. The term "site  preparation  costs"  shall

 15  mean all amounts properly chargeable to capital account, under generally

 16  accepted  accounting  principles,  (i)  which  are  paid  or incurred in

 17  connection with a site's qualification for  a  remediation  certificate,

 18  and (ii) all other site preparation costs paid or incurred in connection

 19  with preparing a site for the erection of a building or a component of a

 20  building, or otherwise to establish a site as usable for its industrial,

 21  commercial  (including  the  commercial development of residential hous-

 22  ing), recreational or conservation purposes.    Site  preparation  costs

 23  shall include, but not be limited to, the costs of excavation, temporary

 24  electric wiring, scaffolding, demolition costs, and the costs of fencing

 25  and  security  facilities.  Site preparation costs shall not include the

 26  cost of acquiring the site and shall not include amounts included in the

 27  cost or other basis for federal income tax purposes of qualified  tangi-

 28  ble property, as described in paragraph three of this subdivision.

                                        114                        12334-02-0

  1    (3)  Qualified  tangible  property.  "Qualified  tangible property" is

  2  property which:

  3    (A) is depreciable pursuant to section one hundred sixty- seven of the

  4  internal revenue code,

  5    (B) has a useful life of four years or more,

  6    (C)  has  been  acquired by purchase as defined in section one hundred

  7  seventy-nine(d) of the internal revenue code,

  8    (D) has a situs on a qualified site in this state,

  9    (E) is principally used by the taxpayer  for  industrial,  commercial,

 10  recreational  or  environmental  conservation  purposes  (including  the

 11  commercial development of residential housing), and

 12    (F) is placed in service within three years following the issuance  of

 13  a remediation certificate with respect to such qualified site.

 14    (4)  Remediation certificate. The term "remediation certificate" shall

 15  refer to the certificate so denominated which is issued by  the  commis-

 16  sioner  of environmental conservation pursuant to section 27-1413 of the

 17  environmental conservation law.

 18    (5) Corporate new business. A "corporate new business"  shall  include

 19  any corporation, except a corporation:

 20    (A) over fifty percent of the number of shares of stock of which enti-

 21  tling the holders thereof to vote for the election of directors or trus-

 22  tees is owned or controlled, either directly or indirectly, by a taxpay-

 23  er   subject   to   tax   under  article  nine-A;  section  one  hundred

 24  eighty-three, one hundred eighty-four, one hundred  eighty-five  or  one

 25  hundred  eighty-six  of article nine; article thirty-two or thirty-three

 26  of this chapter; or

 27    (B) which is substantially similar in operation and in ownership to  a

 28  business  entity  (or  entities)  taxable,  or previously taxable, under

                                        115                        12334-02-0

  1  article nine-A; section one hundred eighty-three,  one  hundred  eighty-

  2  four, one hundred eighty-five or one hundred eighty-six of article nine;

  3  article thirty-two or thirty-three of this chapter; article twenty-three

  4  of this chapter or which would have been subject to tax under such arti-

  5  cle  twenty-three (as such article was in effect on January first, nine-

  6  teen hundred eighty) or the income (or losses)  of  which  is  (or  was)

  7  includable  under  article twenty-two of this chapter whereby the intent

  8  and purpose of this paragraph and the applicable provision of this chap-

  9  ter relating to refunding of credit to new business would be evaded; or

 10    (C) which has been subject to tax under the article  or  section  with

 11  respect  to  which the credit provided for under this section is claimed

 12  for more than four taxable years (excluding short taxable  years)  prior

 13  to the taxable year during which the taxpayer first becomes eligible for

 14  such credit.

 15    (c)  Property  which  qualifies for the credit provided for under this

 16  section and also for a credit provided for (1) under either  subdivision

 17  twelve  or subdivision twelve-B of section two hundred ten of this chap-

 18  ter, or both, (2) subsection  (a)  or  subsection  (j)  of  section  six

 19  hundred  six  of  this  chapter, or both, or (3) the credit provided for

 20  under subsection (i) of section fourteen hundred fifty-six of this chap-

 21  ter, may be the basis for either the  credit  provided  for  under  this

 22  section  or one of the credits enumerated in paragraph one, two or three

 23  of this subdivision, but not both.

 24    (d)(1) With respect to qualified tangible property which is  deprecia-

 25  ble  pursuant to section one hundred sixty-seven of the internal revenue

 26  code but is not subject to the provisions of section one hundred  sixty-

 27  eight of such code and which is disposed of or ceases to be in qualified

 28  use  prior  to  the end of the taxable year in which the credit is to be

                                        116                        12334-02-0

  1  taken, the amount of the credit shall be  that  portion  of  the  credit

  2  provided  for  in  this subdivision which represents the ratio which the

  3  months of qualified use bear to the months of useful life.  If  property

  4  on  which credit has been taken is disposed of or ceases to be in quali-

  5  fied use prior to the end of its useful life, the difference between the

  6  credit taken and the credit allowed for actual use must be added back in

  7  the year of disposition. Provided, however, if such property is disposed

  8  of or ceases to be in qualified use after it has been in  qualified  use

  9  for more than twelve consecutive years, it shall not be necessary to add

 10  back  the  credit  as  provided  in this paragraph. The amount of credit

 11  allowed for actual use shall be determined by multiplying  the  original

 12  credit by the ratio which the months of qualified use bear to the months

 13  of  useful life. For purposes of this paragraph, useful life of property

 14  shall be the same as the taxpayer uses for  depreciation  purposes  when

 15  computing his federal income tax liability.

 16    (2)  Except  with  respect to that property to which paragraph four of

 17  this subdivision applies, with respect to  qualified  tangible  property

 18  which  is  three-year  property, as defined in subsection (e) of section

 19  one hundred sixty-eight of the internal revenue code, which is  disposed

 20  of or ceases to be in qualified use prior to the end of the taxable year

 21  in  which  the  credit is to be taken, the amount of the credit shall be

 22  that portion of the credit provided for in this section which represents

 23  the ratio which the months of qualified use bear to thirty-six. If prop-

 24  erty on which credit has been taken is disposed of or ceases  to  be  in

 25  qualified  use  prior  to  the  end of thirty-six months, the difference

 26  between the credit taken and the credit allowed for actual use  must  be

 27  added  back in the year of disposition. The amount of credit allowed for

                                        117                        12334-02-0

  1  actual use shall be determined by multiplying the original credit by the

  2  ratio which the months of qualified use bear to thirty-six.

  3    (3)  Except  with  respect to that property to which paragraph four of

  4  this subdivision applies, with respect to  qualified  tangible  property

  5  which is subject to the provisions of section one hundred sixty-eight of

  6  the  internal  revenue code other than three-year property as defined in

  7  subsection (e) of such section one hundred sixty-eight which is disposed

  8  of or ceases to be in qualified use prior to the end of the taxable year

  9  in which the credit is to be taken, the amount of the  credit  shall  be

 10  that portion of the credit provided for in this section which represents

 11  the  ratio  which the months of qualified use bear to sixty. If property

 12  on which credit has been taken is disposed of or ceases to be in  quali-

 13  fied  use  prior  to the end of sixty months, the difference between the

 14  credit taken and the credit allowed for actual use must be added back in

 15  the year of disposition. The amount of credit  allowed  for  actual  use

 16  shall  be  determined  by  multiplying  the original credit by the ratio

 17  which the months of qualified use bear to sixty.

 18    (4) With respect to any qualified tangible property to  which  section

 19  one hundred sixty-eight of the internal revenue code applies, which is a

 20  building  or  a structural component of a building and which is disposed

 21  of or ceases to be in qualified use prior to the end of the taxable year

 22  in which the credit is to be taken, the amount of the  credit  shall  be

 23  that portion of the credit provided for in this section which represents

 24  the  ratio which the months of qualified use bear to the total number of

 25  months over which the taxpayer chooses to deduct the property under  the

 26  internal  revenue  code.  If  property on which credit has been taken is

 27  disposed of or ceases to be in qualified use prior to  the  end  of  the

 28  period  over which the taxpayer chooses to deduct the property under the

                                        118                        12334-02-0

  1  internal revenue code, the difference between the credit taken  and  the

  2  credit allowed for actual use must be added back in the year of disposi-

  3  tion. Provided, however, if such property is disposed of or ceases to be

  4  in qualified use after it has been in qualified use for more than twelve

  5  consecutive  years,  it shall not be necessary to add back the credit as

  6  provided in this paragraph. The amount of credit allowed for actual  use

  7  shall  be  determined  by  multiplying  the original credit by the ratio

  8  which the months of qualified use bear to the  total  number  of  months

  9  over  which the taxpayer chooses to deduct the property under the inter-

 10  nal revenue code.

 11    (e) Cross-references. For application of the credit  provided  for  in

 12  this section, see the following provisions of this chapter:

 13    (1) Article 9: Section 187-f

 14    (2) Article 9-A: Section 210, subdivision (33)

 15    (3) Article 22: Section 606, subdivisions (i) and (aa)

 16    (4) Article 32: Section 1456, subdivision (k)

 17    (5) Article 33: Section 1511, subdivision (q).

 18    §  40. The tax law is amended by adding a new section 187-f to read as

 19  follows:

 20    § 187-f. Brownfield redevelopment tax credit. 1. Allowance of  credit.

 21  A  taxpayer  shall  be  allowed  a credit, to be computed as provided in

 22  section twenty-one  of  this  chapter,  against  the  taxes  imposed  by

 23  sections  one hundred eighty-three, one hundred eighty-four, one hundred

 24  eighty-five and one hundred eighty-six of this article. Provided, howev-

 25  er, that the amount of such credit allowable against the tax imposed  by

 26  section  one  hundred eighty-four of this article shall be the excess of

 27  the amount of such credit over the amount of any credit allowed by  this

                                        119                        12334-02-0

  1  section  against  the tax imposed by section one hundred eighty-three of

  2  this article.

  3    2.  Carryovers.  In  no  event  shall the credit under this section be

  4  allowed in an amount which will reduce the tax payable to less than  the

  5  applicable  minimum  tax  fixed by section one hundred eighty-three, one

  6  hundred eighty-five or one  hundred  eighty-six  of  this  article.  If,

  7  however, the amount of credit allowable under this section for any taxa-

  8  ble year reduces the tax to such amount, any amount of credit not deduc-

  9  tible  in such taxable year may be carried over to the following year or

 10  years and may be deducted from the  taxpayer's  tax  for  such  year  or

 11  years. In lieu of such carryover, any such taxpayer which qualifies as a

 12  corporate  new  business  under  paragraph  five  of  subdivision (b) of

 13  section twenty-one of this chapter may elect,  on  its  report  for  its

 14  taxable  year  with  respect  to  which such credit is allowed, to treat

 15  fifty percent of the amount of such carryover as an overpayment  of  tax

 16  to  be credited or refunded in accordance with the provisions of section

 17  ten  hundred  eighty-six  of  this  chapter.  Provided,   however,   the

 18  provisions of subsection (c) of section ten hundred eighty-eight of this

 19  chapter notwithstanding, no interest shall be paid thereon.

 20    §  41.  Section 210 of the tax law is amended by adding a new subdivi-

 21  sion 33 to read as follows:

 22    33. Brownfield redevelopment tax credit. (a) Allowance  of  credit.  A

 23  taxpayer  shall  be  allowed  a  credit,  to  be computed as provided in

 24  section twenty-one of this chapter, against  the  tax  imposed  by  this

 25  article.

 26    (b) Carryovers. The credit and carryovers of such credit allowed under

 27  this  subdivision  for  any  taxable  year  shall not, in the aggregate,

 28  reduce the tax due for such year to less than the higher of the  amounts

                                        120                        12334-02-0

  1  prescribed in paragraphs (c) and (d) of subdivision one of this section.

  2  However,  if the amount of credit or carryovers of such credit, or both,

  3  allowed under this subdivision for any taxable year reduces the  tax  to

  4  such  amount, any amount of credit or carryovers of such credit thus not

  5  deductible in such taxable year may be carried  over  to  the  following

  6  year  or  years and may be deducted from the tax for such year or years.

  7  In lieu of such carryover, any such taxpayer which qualifies as a corpo-

  8  rate new business under paragraph six  of  subdivision  (b)  of  section

  9  twenty-one of this chapter may elect, on its report for its taxable year

 10  with  respect to which such credit is allowed, to treat fifty percent of

 11  the amount of such carryover as an overpayment of tax to be credited  or

 12  refunded in accordance with the provisions of section ten hundred eight-

 13  y-six  of  this chapter. Provided, however, the provisions of subsection

 14  (c) of section ten hundred eighty-eight of this chapter notwithstanding,

 15  no interest shall be paid thereon.

 16    § 42. Paragraph 1 of subsection (i) of section 606 of the tax law,  as

 17  amended  by  section  1 of part I of chapter 407 of the laws of 1999, is

 18  amended to read as follows:

 19    (1) For purposes of determining the application under this section  of

 20  the  credit  provisions enumerated in the following table, a shareholder

 21  of a New York S corporation:

 22    (A) shall be treated as the taxpayer with respect to his  or  her  pro

 23  rata  share of the corresponding credit base of such corporation, deter-

 24  mined for the corporation's taxable  year  ending  with  or  within  the

 25  shareholder's taxable year and

 26    (B)  shall  be  treated as the owner of a new business with respect to

 27  such share if the corporation qualifies as a new  business  pursuant  to

 28  paragraph  (j)  of subdivision twelve of section two hundred ten of this

                                        121                        12334-02-0

  1  chapter, unless the shareholder has  previously  received  a  refund  by

  2  reason of the application of this subparagraph, or this subsection as it

  3  was  in effect for taxable years beginning before nineteen hundred nine-

  4  ty-four.

  5                                          The corporation's

  6  With respect to the                     credit base under

  7  following credit                        section two hundred ten

  8  under this section:                     or section fourteen

  9                                          hundred fifty-six of this

 10                                          chapter is:

 11  Investment tax credit                   Investment credit base

 12  under subsection (a)                    or qualified

 13                                          rehabilitation

 14                                          expenditures under

 15                                          subdivision twelve of

 16                                          section two hundred ten

 17  Economic development                    Cost or other basis

 18  zone investment tax credit              under subdivision

 19  under subsection (j)                    twelve-B

 20                                          of section two hundred

 21                                          ten

 22  Economic development                    Eligible wages under

 23  zone wage tax credit                    subdivision nineteen of

 24  under subsection (k)                    section two hundred ten

 25                                          or subsection (e) of

 26                                          section fourteen hundred

 27                                          fifty-six

                                        122                        12334-02-0

  1  Economic development zone               Qualified investments

  2  capital tax credit                      and contributions under

  3  under subsection (1)                    subdivision twenty of

  4                                          section two hundred ten

  5                                          or subsection (d) of

  6                                          section fourteen hundred

  7                                          fifty-six

  8  Agricultural property tax               Allowable school

  9  credit under subsection (n)             district property taxes under

 10                                          subdivision twenty-two of

 11                                          section two hundred ten

 12  Credit for employment                   Qualified first-year wages or

 13  of persons with dis-                    qualified second-year wages

 14  abilities under                         under subdivision

 15  subsection (o)                          twenty-three of section

 16                                          two hundred ten

 17                                          or subsection (f)

 18                                          of section fourteen

 19                                          hundred fifty-six

 20  Employment incentive                    Applicable investment credit

 21  credit under subsec-                    base under subdivision

 22  tion (a-1)                              twelve-D

 23  Economic develop-                       Applicable investment

 24  ment zone employment                    credit under sub-

 25  incentive credit under                  division twelve-C

 26  subsection (j-1)

 27  Alternative fuels credit                Cost under subdivision

 28  under subsection (p)                    twenty-four

                                        123                        12334-02-0

  1  Qualified emerging                      Applicable credit base

  2  technology company                      under subdivision twelve-E

  3  employment credit                       of section two hundred ten

  4  under subsection (q)

  5  Qualified emerging                      Qualified investments under

  6  technology company                      subdivision twelve-F of

  7  capital tax credit                      section two hundred ten

  8  under subsection (r)

  9  Brownfield redevelopment                Applicable cost

 10  credit under subsection (aa)            or other basis

 11                                          under subdivision thirty-three

 12                                          of section two hundred ten

 13                                          or subsection (o) of section

 14                                          fourteen hundred fifty-six

 15    §  42-a.  Paragraph 1 of subsection (i) of section 606 of the tax law,

 16  as amended by section 2 of part J of chapter 407 of the laws of 1999, is

 17  amended to read as follows:

 18     (1) For purposes of determining the application under this section of

 19  the credit provisions enumerated in the following table,  a  shareholder

 20  of a New York S corporation:

 21    (A)  shall  be  treated as the taxpayer with respect to his or her pro

 22  rata share of the corresponding credit base of such corporation,  deter-

 23  mined  for  the  corporation's  taxable  year  ending with or within the

 24  shareholder's taxable year and

 25    (B) shall be treated as the owner of a new business  with  respect  to

 26  such  share  if  the corporation qualifies as a new business pursuant to

 27  paragraph (j) of subdivision twelve of section two hundred ten  of  this

 28  chapter,  unless  the  shareholder  has  previously received a refund by

                                        124                        12334-02-0

  1  reason of the application of this subparagraph, or this subsection as it

  2  was in effect for taxable years beginning before nineteen hundred  nine-

  3  ty-four.

  4                                          The corporation's

  5  With respect to the                     credit base under

  6  following credit                        section two hundred ten

  7  under this section:                     or section fourteen

  8                                          hundred fifty-six of this

  9                                          chapter is:

 10  Investment tax credit                   Investment credit base

 11  under subsection (a)                    or qualified

 12                                          rehabilitation

 13                                          expenditures under

 14                                          subdivision twelve of

 15                                          section two hundred ten

 16  Economic development                    Cost or other basis

 17  zone investment tax credit              under subdivision

 18  under subsection (j)                    twelve-B

 19                                          of section two hundred

 20                                          ten

 21  Economic development                    Eligible wages under

 22  zone wage tax credit                    subdivision nineteen of

 23  under subsection (k)                    section two hundred ten

 24                                          or subsection (e) of

                                        125                        12334-02-0

  1                                          section fourteen hundred

  2                                          fifty-six

  3  Economic development zone               Qualified investments

  4  capital tax credit                      and contributions under

  5  under subsection (1)                    subdivision twenty of

  6                                          section two hundred ten

  7                                          or subsection (d) of

  8                                          section fourteen hundred

  9                                          fifty-six

 10  Agricultural property tax               Allowable school

 11  credit under subsection (n)             district property taxes under

 12                                          subdivision twenty-two of

 13                                          section two hundred ten

 14  Credit for employment                   Qualified first-year wages or

 15  of persons with dis-                    qualified second-year wages

 16  abilities under                         under subdivision

 17  subsection (o)                          twenty-three of section

 18                                          two hundred ten

 19                                          or subsection (f)

 20                                          of section fourteen

 21                                          hundred fifty-six

 22  Employment incentive                    Applicable investment credit

 23  credit under subsec-                    base under subdivision

 24  tion (a-1)                              twelve-D

                                        126                        12334-02-0

  1  Economic develop-                       Applicable investment

  2  ment zone employment                    credit under sub-

  3  incentive credit under                  division twelve-C

  4  subsection (j-1)

  5  Alternative fuels credit                Cost under subdivision

  6  under subsection (p)                    twenty-four

  7  Qualified emerging                      Applicable credit base

  8  technology company                      under subdivision twelve-E

  9  employment credit                       of section two hundred ten

 10  under subsection (q)

 11  Qualified emerging                      Qualified investments under

 12  technology company                      subdivision twelve-F of

 13  capital tax credit                      section two hundred ten

 14  under subsection (r)

 15  Credit for purchase of an               Cost of an automated

 16  automated external defibrillator        external defibrillator under

 17  under subsection (s)                    subdivision twenty-five of

 18                                          section two hundred ten

 19                                          or subsection (j) of section

 20                                          fourteen hundred fifty-six

 21  Brownfield redevelopment                Applicable cost

 22  credit under subsection (aa)            or other basis

 23                                          under subdivision thirty-three

 24                                          of section two hundred ten

                                        127                        12334-02-0

  1                                          or subsection (o) of section

  2                                          fourteen hundred fifty-six

  3    § 43. Section 606 of the tax law is amended by adding a new subsection

  4  (aa) to read as follows:

  5    (aa)  Brownfield  redevelopment tax credit. (1) Allowance of credit. A

  6  taxpayer shall be allowed a  credit,  to  be  computed  as  provided  in

  7  section  twenty-one  of  this  chapter,  against the tax imposed by this

  8  article.

  9    (2) Carryovers. If the amount of the credit  and  carryovers  of  such

 10  credit  allowed  under this subsection for any taxable year shall exceed

 11  the taxpayer's tax for such year, the excess, as well as any part of the

 12  credit or carryovers of such credit, or both, may be carried over to the

 13  following year or years and may be deducted from the taxpayer's tax  for

 14  such year or years. In lieu of carrying over any such excess, a taxpayer

 15  who  qualifies  as  an owner of a new business for purposes of paragraph

 16  ten of subsection (a) of this section may, at his option, receive  fifty

 17  percent  of  such  excess  as a refund. Any refund paid pursuant to this

 18  paragraph shall be deemed to be a refund of an  overpayment  of  tax  as

 19  provided  in  section  six hundred eighty-six of this article, provided,

 20  however, that no interest shall be paid thereon. For  purposes  of  this

 21  section,  in  reading  such  paragraph  ten,  references  therein to the

 22  investment tax credit provided for under subsection (a) of this  section

 23  shall  be  deemed  to  refer  to  the  credit  provided  for  under this

 24  subsection, and shall be read accordingly.

 25    § 44. Subsection (c) of section 683 of  the  tax  law  is  amended  by

 26  adding a new paragraph 10 to read as follows:

 27    (10)  Reports  concerning  a  remediation certificate. If a taxpayer's

 28  remediation certificate issued pursuant to section 27-1413 of the  envi-

                                        128                        12334-02-0

  1  ronmental  conservation  law  is  modified or revoked by a determination

  2  issued pursuant to subdivision six of section 27-1413  of  the  environ-

  3  mental  conservation  law, any tax liability generated by reason of such

  4  modification  or  revocation  may be assessed within one year after such

  5  determination is final and is no longer subject to judicial  review  and

  6  the  taxpayer  shall be allowed to offset against such tax liability the

  7  amount of any of the credits provided for under subsection (a) or (j) of

  8  section six hundred six of this article which the  taxpayer  would  have

  9  been allowed with respect to amounts which were the basis for the credit

 10  provided  for under such section twenty-one which is the subject of such

 11  assessment.

 12    § 45. Subsection (a) of section 687 of the  tax  law,  as  amended  by

 13  chapter 309 of the laws of 1996, is amended to read as follows:

 14    (a)  General.--Claim  for credit or refund of an overpayment of income

 15  tax shall be filed by the taxpayer within (i) three years from the  time

 16  the  return  was  filed  Õorå,  (ii) two years from the time the tax was

 17  paid, or (iii) in the case of any overpayment arising from an  erroneous

 18  denial  by the department of environmental conservation of a remediation

 19  certificate pursuant to section 27-1413 of the  environmental  conserva-

 20  tion  law,  two  years from the time a final determination to the effect

 21  that such denial was erroneous is made and is no longer subject to judi-

 22  cial review, whichever of such periods expires the Õlaterå latest, or if

 23  no return was filed, within two years from the time the tax was paid. If

 24  the claim is filed within the three year period, the amount of the cred-

 25  it or refund shall not exceed the portion of the  tax  paid  within  the

 26  three years immediately preceding the filing of the claim plus the peri-

 27  od  of  any extension of time for filing the return unless such claim is

 28  for a credit or a portion thereof provided pursuant to paragraph two  or

                                        129                        12334-02-0

  1  four  of  subsection  (c),  paragraph  two  or four of subsection (d) or

  2  subsection (e) of section six hundred six of this chapter.  If the claim

  3  is not filed within the three year period, but is filed within  the  two

  4  year  period,  the  amount  of the credit or refund shall not exceed the

  5  portion of the tax paid during the two years immediately  preceding  the

  6  filing of the claim unless such claim is for a credit or a portion ther-

  7  eof  provided pursuant to paragraph two or four of subsection (c), para-

  8  graph two or four of subsection (d) or subsection  (e)  of  section  six

  9  hundred  six  of  this  chapter.    In the case of a claim for credit or

 10  refund filed within the period prescribed in  paragraph  (iii)  of  this

 11  subsection, the amount of the credit or refund may exceed the portion of

 12  the  tax  paid  within  the applicable period specified in the two imme-

 13  diately preceding sentences, but only to the extent of the amount of the

 14  overpayment attributable to  the  denial  described  in  such  paragraph

 15  (iii).  Except  as  otherwise  provided  in this section, if no claim is

 16  filed, the amount of a credit or refund  shall  not  exceed  the  amount

 17  which would be allowable if a claim had been filed on the date the cred-

 18  it or refund is allowed.

 19    §  46.  Subsection  (c)  of  section 1083 of the tax law is amended by

 20  adding a new paragraph 10  to read as follows:

 21    (10) Reports concerning a remediation  certificate.  If  a  taxpayer's

 22  remediation  certificate issued pursuant to section 27-1413 of the envi-

 23  ronmental conservation law is modified or  revoked  by  a  determinaiton

 24  issued  pursuant  to  subdivision six of section 27-1413 of the environ-

 25  mental conservation law, any tax liability generated by reason  of  such

 26  modification  or  revocation  may be assessed within one year after such

 27  determination is final and is no longer subject to judicial  review  and

 28  the  taxpayer  shall be allowed to offset against such tax liability the

                                        130                        12334-02-0

  1  amount of any of the credits provided for under  subdivision  twelve  or

  2  twelve-B  of section two hundred ten, or subsection (i) of section four-

  3  teen hundred fifty-six of this chapter which  the  taxpayer  would  have

  4  been allowed with respect to amounts which were the basis for the credit

  5  provided  for under such section twenty-one which is the subject of such

  6  assessment.

  7    § 47. Subsection (a) of section 1087 of the tax  law,  as  amended  by

  8  chapter 55 of the laws of 1982, is amended  to read as follows:

  9    (a)  General.--Claim  for  credit  or  refund of an overpayment of tax

 10  under article nineÕ, nine-a, nine-b or nine-cå or nine-A shall be  filed

 11  by  the  taxpayer  within  (i)  three years from the time the return was

 12  filed Õorå, (ii) two years from the time the tax was paid  or  (iii)  in

 13  the  case  of  any  overpayment  arising from an erroneous denial by the

 14  department of environmental conservation of  a  remediation  certificate

 15  pursuant  to  section 27-1413 of the environmental conservation law, two

 16  years from the time a final determination to the effect that such denial

 17  was erroneous is made and is  no  longer  subject  to  judicial  review,

 18  whichever  of  such  periods expires the Õlaterå latest, or if no return

 19  was filed, within two years from the time the tax  was  paid.    If  the

 20  claim is filed within the three year period, the amount of the credit or

 21  refund  shall  not  exceed  the portion of the tax paid within the three

 22  years immediately preceding the filing of the claim plus the  period  of

 23  any  extension  of time for filing the return. If the claim is not filed

 24  within the three year period, but is filed within the two  year  period,

 25  the  amount  of the credit or refund shall not exceed the portion of the

 26  tax paid during the two years immediately preceding the  filing  of  the

 27  claim.    In  the  case of a claim for credit or refund filed within the

 28  period prescribed in paragraph (iii) of this subsection, the  amount  of

                                        131                        12334-02-0

  1  the  credit  or refund may exceed the portion of the tax paid within the

  2  applicable period specified in the two immediately preceding  sentences,

  3  but  only to the extent of the amount of the overpayment attributable to

  4  the  denial described in such paragraph (iii) of this subsection. Except

  5  as otherwise provided in this section, if no claim is filed, the  amount

  6  of  a credit or refund shall not exceed the amount which would be allow-

  7  able if a claim had been filed on the  date  the  credit  or  refund  is

  8  allowed.  For  special restriction in a proceeding on a claim for refund

  9  of tax paid pursuant to an assessment made as a  result  of  (i)  a  net

 10  operating  loss carryback or capital loss carryback, or (ii) an increase

 11  or decrease in federal taxable income or federal tax, or (iii) a federal

 12  change or correction or renegotiation, or computation  or  recomputation

 13  of  tax,  which is treated in the same manner as if it were a deficiency

 14  for federal income tax purposes, see paragraph (7) of subsection (c)  of

 15  section one thousand eighty-three.

 16    §  48.  Section  1456  of  the  tax  law  is  amended  by adding a new

 17  subsection (o) to read as follows:

 18    (o) Brownfield redevelopment tax credit. (1) Allowance  of  credit.  A

 19  taxpayer  shall  be  allowed  a  credit,  to  be computed as provided in

 20  section twenty-one of this chapter, against  the  tax  imposed  by  this

 21  article.

 22    (2)  Carryover. The credit and carryovers of such credit allowed under

 23  this subsection for any taxable year shall not, in the aggregate, reduce

 24  the tax due for such  year  to  less  than  the  minimum  tax  fixed  by

 25  subsection  (b)  of section fourteen hundred fifty-five of this article.

 26  However, if the amount of credit or carryovers of such credit, or  both,

 27  allowed  under  this  subsection for any taxable year reduces the tax to

 28  such amount, then any amount of credit or carryovers of such credit thus

                                        132                        12334-02-0

  1  not deductible in such taxable year may be carried over to the following

  2  year or years and may be deducted from the taxpayer's tax for such  year

  3  or  years.  In lieu of such carryover, any such taxpayer which qualifies

  4  as  a  corporate  new business under paragraph six of subdivision (b) of

  5  section twenty-one of this chapter may elect,  on  its  report  for  its

  6  taxable  year  with  respect  to  which such credit is allowed, to treat

  7  fifty percent of the amount of such carryover as an overpayment  of  tax

  8  to  be credited or refunded in accordance with the provisions of section

  9  ten  hundred  eighty-six  of  this  chapter.  Provided,   however,   the

 10  provisions of subsection (c) of section ten hundred eighty-eight of this

 11  chapter notwithstanding, no interest shall be paid thereon.

 12    §  49. Section 1511 of the tax law is amended by adding a new subdivi-

 13  sion (q) to read as follows:

 14    (q) Brownfield redevelopment tax credit. (1) Allowance  of  credit.  A

 15  taxpayer  shall  be  allowed  a  credit,  to  be computed as provided in

 16  section twenty-one of this chapter, against the taxes  imposed  by  this

 17  article.

 18    (2)  Carryover. The credit and carryovers of such credit allowed under

 19  this subdivision for any taxable  year  shall  not,  in  the  aggregate,

 20  reduce the tax due for such year to less than the minimum fixed by para-

 21  graph  four  of  subdivision  (a) of section fifteen hundred two of this

 22  article. However, if the amount of credit or carryovers of such  credit,

 23  or both, allowed under this subdivision for any taxable year reduces the

 24  tax  to  such  amount,  then  any amount of credit or carryovers of such

 25  credit thus not deductible in such taxable year may be carried  over  to

 26  the  following year or years and may be deducted from the taxpayer's tax

 27  for such year or years. In lieu of such  carryover,  any  such  taxpayer

 28  which  qualifies  as  a  corporate  new  business under paragraph six of

                                        133                        12334-02-0

  1  subdivision (b) of section twenty-one of this chapter may elect, on  its

  2  report  for  its  taxable  year  with  respect  to  which such credit is

  3  allowed, to treat fifty percent of the amount of such  carryover  as  an

  4  overpayment  of  tax  to  be credited or refunded in accordance with the

  5  provisions of section ten hundred eighty-six of this chapter.  Provided,

  6  however,  the provisions of subsection (c) of section ten hundred eight-

  7  y-eight of this chapter notwithstanding, no interest shall be paid ther-

  8  eon.

  9    § 50. This act shall take effect immediately, provided  that  sections

 10  twenty-nine,  thirty,  thirty-four,  thirty-five, thirty-six and thirty-

 11  seven of this act shall take effect April 1, 2001, and provided  further

 12  that  sections  thirty-nine,  forty,  forty-one, forty-two, forty-three,

 13  forty-eight and forty-nine of this act  shall  apply  to  taxable  years

 14  beginning  on  or  after January 1, 2000 and section forty-two-a of this

 15  act shall apply to taxable years beginning on or after January 1,  2001,

 16  but only to site costs incurred and property placed in service after the

 17  date  this  act shall have become a law.  Provided further, subdivisions

 18  13 and 14 of section 97-b of the state finance  law,  as  designated  by

 19  section  twenty-nine  of  this  act,  shall be deemed repealed effective

 20  April first  of  the  state  fiscal  year  following  the  certification

 21  provided  for  in    subdivision  15  of such section 97-b; and provided

 22  further that the state comptroller shall  notify  the  legislative  bill

 23  drafting  commission  upon  the occurrence of the certification provided

 24  for in subdivision 15 of section 97-b of the state finance law in  order

 25  that  the  commission may maintain an accurate and timely effective data

 26  base of the official text of the laws of the state of New York in furth-

 27  erance of effecting the provisions of section 44 of the legislative  law

 28  and section 70-b of the public officers law.

                                        134                        12334-02-0

  1                                   PART F

  2    Section  1.  Subdivision  2  of  section  11-0305 of the environmental

  3  conservation law is amended to read as follows:

  4    2. To issue the licenses and permits provided for by law, to fix their

  5  terms, and the fees therefor, when no statutory provision  is  made,  to

  6  designate  agents  to  sell  and  promote the sale of licenses, to adopt

  7  procedures for the issuance of licenses, to  establish  the  design  and

  8  format  of  licenses  and  the  information  to be contained thereon, to

  9  provide where it deems appropriate for tags and buttons, to adopt proce-

 10  dures  respecting  tagging  or  identifying  fish  and  wildlife   being

 11  possessed  or  transported, to establish procedures and requirements for

 12  reporting license sales and handling and remittance of license  revenues

 13  by  persons or entities issuing such licenses, to provide for acceptable

 14  methods of payment of license fees, and to revoke licenses  and  permits

 15  as provided by law;

 16    §  2. Section 11-0305 of the environmental conservation law is amended

 17  by adding a new subdivision 18 to read as follows:

 18    18.  To prepare or cause to be prepared voluntary habitat  stamps  and

 19  furnish  such stamps annually to license issuing agents and officers for

 20  sale and issuance in the same manner as  licenses  and  other  types  of

 21  stamps.   The department shall, by rule, establish the fee for the habi-

 22  tat stamp which shall not exceed five dollars plus an additional  amount

 23  for  the  issuing agent or officer. The purchase of a stamp is voluntary

 24  and a stamp need not be possessed in order to take fish or wildlife.

 25    § 3. Subdivision 3 of section 11-0327 of the  environmental  conserva-

 26  tion law is amended by adding a new paragraph (g) to read as follows:

                                        135                        12334-02-0

  1    (g) To review the department's planned expenditures for fish and wild-

  2  life purposes. The department shall, by the first day of October of each

  3  year,  submit  to  the board for its review planned expenditures by time

  4  and activity code for all fish and wildlife programs for the next fiscal

  5  year.

  6    § 4. Subparagraph 1 of paragraph a of subdivision 2 of section 11-0701

  7  of the environmental conservation law is REPEALED and a new subparagraph

  8  1 is added to read as follows:

  9    (1)  A small and big game license entitles the resident holder to hunt

 10  wildlife subject to the following:

 11    (i) a holder who is eighteen years of age or older may  hunt  wildlife

 12  as provided in title 9 of this article,

 13    (ii)  a holder who is sixteen years of age or older may hunt wildlife,

 14  except big game, as provided in title 9 of this article, and

 15    (iii) a holder who is between the ages of  sixteen  and  eighteen  may

 16  hunt  big  game  pursuant  to  the provisions of title 9 of this article

 17  while the holder is accompanied by a parent, guardian or person over the

 18  age of eighteen as required by section 11-0929 of this article.

 19    A holder may take fish with a gun or longbow as provided in  titles  9

 20  and 13 of this article.

 21    §  5.  Paragraph b of subdivision 2 of section 11-0701 of the environ-

 22  mental conservation law is amended to read as follows:

 23    b. A special antlerless deer license is applicable to the  hunting  of

 24  wild antlerless deer in a special open season fixed pursuant to subdivi-

 25  sion 6 of section 11-0903 of this article in a tract within a Wilderness

 26  Hunting Area and entitles the holder of a small and big game license who

 27  is entitled to hunt wild deer as provided in paragraph a to hunt antler-

 28  less  deer  in  such special open season, as provided in title 9 of this

                                        136                        12334-02-0

  1  article if he has on his person while so hunting both his small and  big

  2  game license and his special antlerless deer license.

  3    §  6.  Paragraph c of subdivision 2 of section 11-0701 of the environ-

  4  mental conservation law, as amended by chapter 57 of the laws  of  1993,

  5  is amended to read as follows:

  6    c.  A junior archery license entitles a resident holder who is between

  7  the ages of fourteen and sixteen years to hunt wild deer and bear with a

  8  longbow during the special archery season and during the regular  season

  9  Õin areas restricted to bowhunting onlyå, as provided in title 9 of this

 10  article,  as  if  such  person held a big game license with a bowhunting

 11  stamp affixed, subject to the provisions of section 11-0929 and subdivi-

 12  sion 6 of section 11-0713 of this article.  It entitles  a  non-resident

 13  holder  who  is  between  the ages of fourteen and sixteen years to hunt

 14  wild deer and bear with a longbow during the special archery season  and

 15  during  the  regular season Õin areas restricted to bowhunting onlyå, as

 16  provided in title 9 of this article, as if such person held a  non-resi-

 17  dent bowhunting license, a non-resident big game license and a non-resi-

 18  dent bear tag, subject to the provisions of section 11-0929 and subdivi-

 19  sion Õsixå 6 of section 11-0713 of this article.

 20    §  7.  Paragraphs  d  and e of subdivision 2 of section 11-0701 of the

 21  environmental conservation law are REPEALED.

 22    § 8. Subdivision 3 of section 11-0701 of the  environmental  conserva-

 23  tion  law,  as amended by chapter 160 of the laws of 1979, is amended to

 24  read as follows:

 25    3. A bowhunting stamp when affixed to a small  and  big  game  license

 26  entitles  a  holder  who  is eighteen years of age or older to hunt wild

 27  deer and bear with a longbow, as provided in title 9 of this article, in

 28  a special longbow season, and it entitles a holder who  is  between  the

                                        137                        12334-02-0

  1  ages  of  sixteen  and  eighteen  years  to exercise the same privileges

  2  subject to the provisions  of  section  11-0929  and  subdivision  6  of

  3  section 11-0713 of this article.

  4    §  9.  Subdivision 5 of section 11-0701 of the environmental conserva-

  5  tion law, as amended by chapter 57 of the laws of 1993,  is  amended  to

  6  read as follows:

  7    5.  a.  A  combined resident Õhunting,å fishing and small and big game

  8  license, hereinafter in this article referred to as a sportsman license,

  9  entitles the holder to the privileges the holder would have if the hold-

 10  er held separately a Õhunting, aå fishing  and  a  small  and  big  game

 11  license.

 12    b.  A  combined  resident  small and big game, fishing, bowhunting and

 13  muzzle-loading license, hereinafter in this article  referred  to  as  a

 14  super-sportsman license, entitles the holder to the privileges the hold-

 15  er  would  have  if  the  holder  held  separately  a small and big game

 16  license, a fishing license, and a  bowhunting  stamp,  a  muzzle-loading

 17  stamp and a turkey permit.

 18    §  10. Subdivision 6 of section 11-0701 of the environmental conserva-

 19  tion law, as amended by chapter 646 of the laws of 1977  and  as  renum-

 20  bered  by  chapter  208 of the laws of 1978 and the opening paragraph as

 21  redesignated by chapter 450 of the laws of 1991, is amended to  read  as

 22  follows:

 23    6. A combination free Õhunting-bigå small and big game hunting-fishing

 24  license  entitles the holder to the privileges he would have if he held,

 25  separately, a Õhunting,å small and big game hunting and fishing license,

 26  provided, however, if the said combination free Õhunting-bigå small  and

 27  big  game hunting-fishing license is stamped by the issuing clerk "FISH-

                                        138                        12334-02-0

  1  ING ONLY" the holder is entitled only to the privileges he would have if

  2  he held a fishing license.

  3    §  11. Subdivision 8 of section 11-0701 of the environmental conserva-

  4  tion law, as amended by chapter 450 of the laws of 1991, is  amended  to

  5  read as follows:

  6    8.  A Õfive-dayå seven-day fishing license entitles the Õnon-residentå

  7  holder to exercise the privileges of a fishing license  for  the  Õfiveå

  8  seven consecutive days specified in the license.

  9    §  12. Subdivision 9 of section 11-0701 of the environmental conserva-

 10  tion law is REPEALED.

 11    § 13. Subdivision 11 of section 11-0701 of the environmental conserva-

 12  tion law, as added by chapter 198 of the laws of 1977 and as  renumbered

 13  by chapter 470 of the laws of 1994, is amended to read as follows:

 14    11.  A  muzzle-loading  stamp  when  affixed  to  a small and big game

 15  license entitles a holder who is sixteen years of age or older  to  hunt

 16  wild  deer  and bear with a muzzle-loading firearm, as provided in title

 17  Õnineå 9 of this article, in a special muzzle-loading firearm season.

 18    § 14. Subdivision 12 of section 11-0701 of the environmental conserva-

 19  tion law, as added by chapter 450 of the laws of 1991 and as  renumbered

 20  by chapter 470 of the laws of 1994, is amended to read as follows:

 21    12.  a.  A junior Õhuntingå small game license entitles the holder age

 22  twelve to age Õsixteenå thirteen to hunt Õsmall gameå  wildlife,  except

 23  big  game, as provided in title 9 of this article subject, specifically,

 24  to the provisions of section 11-0929 of this article. It  entitles  such

 25  holder  to  possess  firearms as provided in section 265.05 of the penal

 26  law.

 27    b.  A junior small and big game license entitles the holder age  four-

 28  teen  to  age sixteen to hunt wildlife, except big game, pursuant to the

                                        139                        12334-02-0

  1  provisions of title 9 of this article and to hunt big  game  during  the

  2  special muzzle-loading season and during the regular season, as provided

  3  in  title  9  of this article, as if such person held a big game license

  4  with  a muzzle-loading stamp affixed, provided that the holder is accom-

  5  panied by a parent, guardian or person  over  the  age  of  eighteen  as

  6  required by section 11-0929 of this article.

  7    §  15.  Subdivisions  13, 14 and 15 of section 11-0701 of the environ-

  8  mental conservation law, as added by chapter 57 of the laws of 1993  and

  9  as renumbered by chapter 470 of the laws of 1994, are amended to read as

 10  follows:

 11    13.  A  non-resident  bowhunting license entitles a person who has not

 12  been a resident of the state for more than thirty days to hunt wild deer

 13  with a longbow in a special  longbow  season  Õand  during  the  regular

 14  seasonå as provided for in title 9 of this article and, when accompanied

 15  by  a  non-resident  bear  tag,  entitles the holder to hunt bear with a

 16  longbow during the open bear season.

 17    14. A non-resident muzzle-loading license entitles a  person  who  has

 18  not  been a resident of the state for more than thirty days to hunt wild

 19  deer with a muzzleloader in a special muzzle-loading season Õand  during

 20  the regular seasonå as provided for in title 9 of this article and, when

 21  accompanied by a non-resident bear tag, entitles the holder to hunt bear

 22  with a muzzleloader during the open bear season.

 23    15. A non-resident combined hunting, fishing, big game, bowhunting and

 24  muzzle-loading  license,  hereinafter  in  this article referred to as a

 25  super-sportsman license, entitles a person who has not been  a  resident

 26  of the state for more than thirty days to the privileges that the holder

 27  would  have if the holder held separately a non-resident hunting, a non-

 28  resident fishing, a non-resident big game, a non-resident bowhunting and

                                        140                        12334-02-0

  1  a non-resident muzzle-loading license, except that only one bear may  be

  2  taken.

  3    §  16. Subdivision 1 of section 11-0702 of the environmental conserva-

  4  tion law, as amended by chapter 57 of the laws of 1993 and  paragraph  a

  5  as  amended  by  chapter  245 of the laws of 1995, is amended to read as

  6  follows:

  7    1. There are hereby created the following lifetime  hunting,  fishing,

  8  trapping,  archery and muzzle-loading licenses and fees therefor subject

  9  to the same privileges  and  obligations  of  a  comparable  short  term

 10  license:

 11                Licenses                               Fees

 12         a. Lifetime resident combined

 13       Õhunting,å fishing and small

 14       and big game license.

 15       If purchased, for a child four

 16       years of age or younger              Õ$250.00å $285.00

 17         for a child age five through

 18       eleven years of age                  Õ$350.00å $395.00

 19         for a person age twelve through

 20       sixty-four years of age              Õ$500.00å $565.00

 21         for a person age sixty-five

 22       and over.                                      $ 50.00

                                        141                        12334-02-0

  1         b. Lifetime resident Õhuntingå

  2       small and big game license.          Õ$250.00å $340.00

  3         c. Lifetime resident fishing

  4       license.                             Õ$250.00å $340.00

  5         d. Lifetime resident trapping

  6       license.                             Õ$250.00å $290.00

  7         e. Lifetime resident archery

  8       stamp.                               Õ$125.00å $170.00

  9         f. Lifetime resident muzzle-

 10       loading stamp.                       Õ$125.00

 11         g. Lifetime resident big game hunting

 12       license.                              $250.00å $170.00

 13    The holder of a lifetime resident hunting, big game or fishing license

 14  may,  at  any time, convert such license to a lifetime resident combined

 15  hunting, fishing and big game license for an additional fee equal to the

 16  existing differential.

 17    § 17. Subdivision 2 of section 11-0703 of the environmental  conserva-

 18  tion  law,  as  amended by chapter 57 of the laws of 1993, is amended to

 19  read as follows:

 20    2. No license, permit, tag or stamp is transferable. No  person  shall

 21  alter,  change,  lend  to  another or attempt to transfer to another any

 22  license or any button, permit, tag or stamp issued therewith. No person,

                                        142                        12334-02-0

  1  while hunting, shall possess a license, button,  permit,  tag  or  stamp

  2  which  was  issued  to another person unless actually accompanied by the

  3  person to whom such license, button, permit, tag or stamp was issued. No

  4  person  shall  purchase,  possess  or  use more than one junior archery,

  5  junior small and big game, small game and big game, big game,  Õcombined

  6  resident  hunting,  fishing  and  big  gameå bowhunting, muzzle-loading,

  7  sportsman, super-sportsman, non-resident bowhunting  or  muzzle-loading,

  8  combined   non-resident  hunting,  fishing,  big  game,  bowhunting  and

  9  muzzle-loading license, non-resident bear tag or special permit for  the

 10  current  license  year, except as permitted by rule or regulation of the

 11  department.

 12    § 18. Subdivision 3 of section 11-0703 of the environmental  conserva-

 13  tion law, paragraph b as amended by 646 of the laws of 1977 and subpara-

 14  graph  1 of paragraph b as amended by chapter 57 of the laws of 1993, is

 15  amended to read as follows:

 16    3. Õa.å Any license, stamp  or  certificate  in  lieu  of  a  lost  or

 17  destroyed  license,  obtained by fraud, or by a person not authorized to

 18  hold it, or who makes a false statement in applying for it, is void.

 19    Õb. (1)  A  big  game,  junior  archery,  non-resident  bowhunting  or

 20  muzzle-loading  license  or  the  big game license portion of a combined

 21  resident hunting, fishing and big game license or combined  non-resident

 22  hunting,  fishing,  big  game,  bowhunting and muzzle-loading license is

 23  void for the taking of deer if the license tag or  tags  marked  "dupli-

 24  cate"  provided  for in section 11-0713 is detached from the license tag

 25  marked "original".

 26    (2) The big game license portion of  a  combination  free  hunting-big

 27  game  hunting-fishing  license  is  void  for  the taking of deer if the

                                        143                        12334-02-0

  1  license tag marked  "duplicate"  provided  for  in  section  11-0713  is

  2  detached from the license tag marked "original".å

  3    §  19. Subdivision 4 of section 11-0703 of the environmental conserva-

  4  tion law, as amended by chapter 450 of the laws of 1991,  paragraphs  a,

  5  b,  c and d as amended by chapter 57 of the laws of 1993 and paragraph e

  6  as relettered by chapter 470 of the laws of 1994, is amended to read  as

  7  follows:

  8    4.  a. ÕFive-dayå Non-resident fishing licenses, combined non-resident

  9  hunting, fishing, big game, bowhunting and muzzle-loading,  non-resident

 10  bowhunting  or  muzzle-loading  and  non-resident  trapping licenses and

 11  non-resident bear tags are issuable only to  non-residents  and  persons

 12  who  have been residents for less than thirty days immediately preceding

 13  the date of application.

 14    b. A person under the age of fourteen years is ineligible for a junior

 15  small and big game or a junior archery license. A person under  the  age

 16  of  sixteen  years  is  ineligible  for  a small and big game license, a

 17  Õcombined resident hunting, fishing and big gameå  sportsman  or  super-

 18  sportsman  license,  combined  non-resident  hunting, fishing, big game,

 19  bowhunting, and muzzle-loading,  non-resident  bowhunting,  non-resident

 20  muzzle-loading  license, a muzzle-loading stamp or a bowhunting stamp. A

 21  person is ineligible for a hunting, small and big game, junior small and

 22  big game, big game, junior archery, Õcombined resident hunting,  fishing

 23  and big gameå sportsman and super-sportsman, combined non-resident hunt-

 24  ing,  fishing,  big  game,  bowhunting  and muzzle-loading, non-resident

 25  bowhunting or non-resident muzzle-loading license unless  he  meets  the

 26  requirements of subdivision 6 of section 11-0713 of this article.

 27    c.  Only  the following persons are eligible for Õa combinedå resident

 28  Õhunting, fishing and big game licenseå licenses: (1) persons  who  have

                                        144                        12334-02-0

  1  been  residents  in  the  state  for  more  than thirty days immediately

  2  preceding the date of application for the licenses, or who are  enrolled

  3  in  a  full-time  course at a college or university within the state and

  4  who are in residence in the state for the school year, or who are out of

  5  state  or  foreign exchange high school students enrolled in a full-time

  6  course in a high school within the state and who are in residence in the

  7  state for the school year; (2) Indian residents or members  of  the  six

  8  nations  residing  on any reservation wholly or partly within the state;

  9  (3) members of  the  United  States  armed  forces  in  active  service,

 10  stationed  in  this  state,  regardless of the place of residence at the

 11  time of entry into the service; and (4) persons privileged under  subdi-

 12  vision 5 of section 11-0707 of this article to take wildlife, other than

 13  deer and bear, as if they held hunting licenses.

 14    d.  Only  persons who possess a Õresidentå small and big game license,

 15  junior small and big game license or the big game license portion of the

 16  combination  free  hunting-big  game  hunting-fishing  license,  or  the

 17  Õcombined  resident  hunting,  fishing and big gameå sportsman or super-

 18  sportsman license are eligible for a bowhunting stamp or a  muzzle-load-

 19  ing stamp.

 20    e.  A  person under the age of twelve years is ineligible for a junior

 21  Õhuntingå small game license.

 22    § 20. Paragraph a of subdivision 5 of section 11-0703 of the  environ-

 23  mental  conservation law, as amended by chapter 237 of the laws of 1993,

 24  is amended to read as follows:

 25    a. One-dayÕ, three-dayå  and  Õfive-dayå  seven-day  fishing  licenses

 26  expire on the date stated on them.

 27    §  21.  Paragraphs  a and b of subdivision 6 of section 11-0703 of the

 28  environmental conservation law, as added by chapter 57 of  the  laws  of

                                        145                        12334-02-0

  1  1993  and  subparagraph 4 of paragraph a as renumbered by chapter 470 of

  2  the laws of 1994, are amended to read as follows:

  3    a.  Except  as provided in section 11-0707 and section 11-0709 of this

  4  article, no person shall (1) hunt wildlife, other than deer or bear,  or

  5  take  fish with a gun, unless such person holds and is entitled to exer-

  6  cise the privileges of a hunting, junior small game,  junior  small  and

  7  big  game,  small  and big game, combination free hunting-big game hunt-

  8  ing-fishing license, a Õcombined resident hunting, fishing and big gameå

  9  sportsman or super-sportsman license or a combined non-resident hunting,

 10  fishing, big game,  bowhunting  and  muzzle-loading  license;  (2)  hunt

 11  antlerless  deer  in a special open season therefor pursuant to subdivi-

 12  sion 6 of section 11-0903 of this article unless such person  holds  and

 13  is  entitled  to exercise the privileges of and has on his or her person

 14  while so hunting both a small and big game, junior small  and  big  game

 15  license, or junior archery license or bowhunting, muzzle-loading, combi-

 16  nation  free  hunting-big  game  hunting-fishing license, or a Õcombined

 17  resident hunting, fishing and big  gameå  sportsman  or  super-sportsman

 18  license, or combined non-resident hunting, fishing, big game, bowhunting

 19  and  muzzle-loading  license  and a special antlerless deer license; (3)

 20  take fish or frogs in the manner described in subdivision 4  of  section

 21  11-0701  of  this article unless such person is entitled to exercise the

 22  privileges of a fishing license; (4) trap wildlife  unless  such  person

 23  holds a trapping license.

 24    b.  Except  as provided in section 11-0707 and section 11-0709 of this

 25  article, no resident shall (1) hunt wild deer or bear unless such person

 26  holds and is entitled to exercise the privileges  of  a  small  and  big

 27  game,  junior  archery,  junior  small and big game, bowhunting, muzzle-

 28  loading or combination free hunting-big game hunting-fishing license, or

                                        146                        12334-02-0

  1  a Õcombined resident hunting, fishing and big gameå sportsman or  super-

  2  sportsman  license and meets the requirements of subdivisions 2 and 3 of

  3  section 11-0701 or subdivision  2  or  4  of  section  11-0715  of  this

  4  article;  (2) hunt wild deer or bear with a longbow in a special longbow

  5  season unless such person holds and is entitled to exercise  the  privi-

  6  leges  of  a  small  and  big  game license or junior small and big game

  7  license or combination free hunting-big game hunting-fishing license, or

  8  a Õcombined resident  hunting,  fishing  and  big  gameå  sportsman  and

  9  super-sportsman  license with a bowhunting stamp affixed or junior arch-

 10  ery license and meets the  requirements  of  subdivisions  2  and  3  of

 11  section  11-0701  or  subdivision  2  or  4  of  section 11-0715 of this

 12  article; or (3) hunt wild deer or bear with a muzzle-loading firearm  in

 13  a special muzzle-loading firearm season unless such person holds a small

 14  and  big  game,  or  combination  free  hunting-big game hunting-fishing

 15  license or a Õcombined resident hunting, fishing and big gameå sportsman

 16  or super-sportsman license with a  muzzle-loading  stamp  affixed  or  a

 17  junior small and big game license and meets the requirements of subdivi-

 18  sion 2 of section 11-0701 of this article.

 19    § 22. Paragraphs a, b and d of subdivision 2 of section 11-0705 of the

 20  environmental conservation law, paragraphs a and b as amended by chapter

 21  57  of the laws of 1993 and paragraph d as amended by chapter 209 of the

 22  laws of 1980, are amended to read as follows:

 23    a. Holders of a hunting, junior Õhuntingå small game,  small  and  big

 24  game, junior small and big game, combined non-resident hunting, fishing,

 25  big  game,  bowhunting  and muzzle-loading, combination free hunting-big

 26  game hunting-fishing license or Õcombined resident hunting, fishing  and

 27  big  gameå  sportsman  or  super-sportsman license, while exercising the

 28  privileges of a hunting or small and big game license,  shall  have  the

                                        147                        12334-02-0

  1  Õhunting  licenseå  back  tag  issued with their license attached to and

  2  displayed on the back of the outer garment between the shoulders in such

  3  manner that all figures are plainly visible at all times.

  4    b.  Holders  of  a  big game, small and big game, junior small and big

  5  game, combination free hunting-big game hunting-fishing, Õcombined resi-

  6  dent hunting, fishing  and  big  gameå  sportsman  and  super-sportsman,

  7  combined   non-resident  hunting,  fishing,  big  game,  bowhunting  and

  8  muzzle-loading, non-resident  bowhunting  or  muzzle-loading  or  junior

  9  archery  license,  while  hunting wild deer or bear, shall have the Õbig

 10  game, combination free hunting-big game hunting-fishing or junior  arch-

 11  eryå  license tag issued with their Õbig game, combination free hunting-

 12  big game hunting-fishing, combined resident  hunting,  fishing  and  big

 13  game,  combined  non-resident hunting, fishing, big game, bowhunting and

 14  muzzle-loading, non-resident  bowhunting  or  muzzle-loading  or  junior

 15  archeryå license so attached and displayed.

 16    d.  Notwithstanding  the  provisions  of paragraphs a, b and c of this

 17  subdivision, a Õhuntingå license holder shall not be required to display

 18  such license tag in the Northern Zone or the Catskill Park.

 19    § 23. Subdivision 2 of section 11-0709 of the environmental  conserva-

 20  tion law is amended to read as follows:

 21    2.  Whenever  taking of destructive or menacing wildlife is authorized

 22  in section 11-0523 of this article,  such  taking  is  exempt  from  the

 23  requirement  of  a  hunting,  small  and  big game, big game or trapping

 24  license, unless the provision authorizing  such  taking  specifies  that

 25  such license is required.

 26    §  24.  Section  11-0711  of  the  environmental  conservation  law is

 27  REPEALED.

                                        148                        12334-02-0

  1    § 25. Paragraph a of subdivision 1 of section 11-0713 of the  environ-

  2  mental conservation law, the opening paragraph as amended by chapter 309

  3  of  the laws of 1996 and subparagraphs 1 and 4 as amended by chapter 911

  4  of the laws of 1990, is amended to read as follows:

  5    a.  Hunting,  junior  small game, small and big game, junior small and

  6  big game, fishing, combination free  hunting-big  game  hunting-fishing,

  7  Õcombined  resident  hunting, fishing and big gameå sportsman and super-

  8  sportsman, one-dayÕ, three-day and five-dayå and seven-day fishing,  big

  9  game, junior archeryÕ, junior huntingå and trapping licenses, bowhunting

 10  stamps,  muzzle-loading  stamps,  turkey  permits, combined non-resident

 11  hunting, fishing, big  game,  bowhunting  and  muzzle-loading  licenses,

 12  non-resident  hunting,  bowhunting or muzzle-loading licenses, non-resi-

 13  dent bear tags and license tags provided for in paragraph c of  subdivi-

 14  sion four of this section shall be issued by:

 15    (1)  environmental  conservation  officers  and regional and assistant

 16  regional environmental conservation officers,

 17    (2) clerks of a county, town or city, except a  city  having  a  popu-

 18  lation of one million or more, Õandå

 19    (3)  clerks  of  a  village  having more than one thousand inhabitants

 20  according to the last preceding federal census, or of  a  village  in  a

 21  county  of less than five hundred thousand inhabitants, adjoining a city

 22  of over one million inhabitants, both according to such censusÕ.å, and

 23    (4) License issuing officers as may be appointed by the  commissioner.

 24  Applicants for designation as license issuing officers shall be over the

 25  age  of  eighteen  years  Õwho have been residents of the state for more

 26  than six months immediately preceding  the  date  of  application,å  and

 27  shall  meet  such  other  requirements of eligibility, including posting

 28  bond, as the department may by regulation specify. Such issuing officers

                                        149                        12334-02-0

  1  shall be entitled to receive and keep the same fees for issuing licenses

  2  and stamps that are specified in section 11-0715  of  this  article  for

  3  issuing  clerks,  and  shall  file reports and remit license fees to the

  4  appropriate  regional  environmental conservation officer or the depart-

  5  ment as required by subdivision Õoneå  1  of  section  11-0717  of  this

  6  Õchapterå article for environmental conservation officers.

  7    §  26. Subdivisions 2, 3 and 4 of section 11-0713 of the environmental

  8  conservation law are REPEALED.

  9    § 27. Subdivision 5 of section 11-0713 of the environmental  conserva-

 10  tion  law,  as amended by chapter 450 of the laws of 1991, is renumbered

 11  subdivision 2 and amended to read as follows:

 12    2. The issuing officer shall not issue a junior archery  or  a  junior

 13  small  and big game license to a person between the ages of fourteen and

 14  sixteen or a junior Õhuntingå small game license to a person between the

 15  ages of twelve and Õsixteen, yearså thirteen unless at the time of issu-

 16  ance applicant is accompanied by his parent or legal guardian who  shall

 17  consent  to  the issuance of the license and shall so signify by signing

 18  his name in ink across the face of it. At no time shall  Õhuntingå  such

 19  licenses  be  issued  by  mail to persons between the ages of twelve and

 20  sixteen years.

 21    § 28. Subdivision 6 of section 11-0713 of the environmental  conserva-

 22  tion  law  is  renumbered  subdivision  3  and paragraphs a, c and d, as

 23  amended by chapter 57 of the laws  of  1993,  are  amended  to  read  as

 24  follows:

 25    a.  Subject  to  the provisions of paragraphs b and c of this subdivi-

 26  sion, the issuing officer shall not issue a hunting, junior small  game,

 27  small  and  big  game, junior small and big game, combination free hunt-

 28  ing-big game hunting-fishing, Õcombined resident  hunting,  fishing  and

                                        150                        12334-02-0

  1  big  game,  big  gameå  sportsman and super-sportsman, Õjunior hunting,å

  2  junior  archery,  combined  non-resident  hunting,  fishing,  big  game,

  3  bowhunting   and   muzzle-loading,  non-resident  hunting,  non-resident

  4  bowhunting,  non-resident muzzle-loading or trapping license or bowhunt-

  5  ing stamp or muzzle-loading stamp to any  person  unless  the  applicant

  6  presents:

  7    (1)  a  hunting, small and big game, junior small and big game, junior

  8  small game, five-day hunting, combined hunting and fishing,  combination

  9  free hunting-big game hunting-fishing, Õcombined resident hunting, fish-

 10  ing and big gameå sportsman and super-sportsman, combined small game and

 11  big  game,  big game, junior archery, junior hunting, combined non-resi-

 12  dent hunting, fishing, big game, bowhunting and muzzle-loading,  non-re-

 13  sident  bowhunting,  non-resident  muzzle-loading  or  trapping  license

 14  issued to him previously; or

 15    (2) an affidavit from a license issuing officer stating that applicant

 16  previously has been issued a hunting, junior small game, small  and  big

 17  game,  junior  small and big game, or five-day hunting, combined hunting

 18  and  fishing,  combination  free   hunting-big   game   hunting-fishing,

 19  Õcombined  resident  hunting, fishing and big gameå sportsman and super-

 20  sportsman, combined small game and big game, big game, trapping,  junior

 21  hunting,  combined  non-resident  hunting, fishing, big game, bowhunting

 22  and muzzle-loading, non-resident bowhunting, non-resident muzzle-loading

 23  or junior archery license; or

 24    (3) a certificate of qualification in responsible hunting, responsible

 25  bowhunting and responsible trapping practices, including safety,  ethics

 26  and  landowner-hunter  relations,  issued  or honored by the department,

 27  pursuant to this subdivision.

                                        151                        12334-02-0

  1    c. The issuing officer shall not issue a bowhunting stamp  or  muzzle-

  2  loading  stamp to any resident unless the applicant presents a small and

  3  big  game,  combination  free  hunting-big  game   hunting-fishing,   or

  4  Õcombined  resident  hunting, fishing and big gameå sportsman and super-

  5  sportsman  license  issued  to that person for the corresponding license

  6  year.

  7    d. Certifications of qualification in responsible hunting, responsible

  8  bowhunting and responsible trapping practices may be made by duly quali-

  9  fied and designated persons, whose fitness to give instructions in  said

 10  practices has been determined by an agent of the department. The depart-

 11  ment  may designate any person it deems qualified to act as its agent in

 12  the giving of instruction and the making  of  certification.  No  charge

 13  shall  be  made  for any certificate or instruction given to a person to

 14  qualify him or her to obtain  a  Õhunting,  combined  resident  hunting,

 15  fishing and big game, big game, combined non-resident, hunting, fishing,

 16  big   game,   bowhunting,  muzzle-loading,  non-resident  bowhunting  or

 17  muzzle-loading, junior hunting, junior archery or trappingå  license  or

 18  Õbowhuntingå  stamp  other  than  for  certain instruction and materials

 19  accredited by the department to provide preparation for  final  instruc-

 20  tion  and testing by agents of the department. The department shall make

 21  available to the public courses without  charge  which  do  not  require

 22  additional  preparation  at  the expense of students, and may also offer

 23  optional courses which require preparatory instruction which may  be  at

 24  the  expense  of  the student.   The department may make rules and regu-

 25  lations which in its opinion are calculated  to  effectuate  better  the

 26  purpose of this subdivision.

                                        152                        12334-02-0

  1    §  29. Paragraph e of subdivision 3 of section 11-0713 of the environ-

  2  mental conservation law, such subdivision as renumbered by section twen-

  3  ty-eight of this act, is REPEALED.

  4    §  30. Subdivision 7 of section 11-0713 of the environmental conserva-

  5  tion law, as amended by chapter 450 of the laws of 1991 and paragraph  a

  6  as amended by chapter 470 of the laws of 1994, is renumbered subdivision

  7  4 and amended to read as follows:

  8    4.  a.  A  person  who  has  lost or accidentally destroyed a hunting,

  9  junior small game, small and big game, junior small and big game,  fish-

 10  ing,  combination free hunting-big game hunting-fishing, Õcombined resi-

 11  dent hunting, fishing and big  gameå  sportsman,  super-sportsman,  Õbig

 12  game,  junior  archery,  junior  huntingå non-resident hunting, combined

 13  non-resident hunting, fishing, big game, bowhunting and  muzzle-loading,

 14  non-resident   bowhunting,   non-resident   muzzle-loading  or  trapping

 15  license, bowhunting stamp or muzzle-loading stamp may apply to the offi-

 16  cer who issued it for a certificate in lieu thereof. Such officer  shall

 17  issue  a  certificate stating the name and address of the applicant, the

 18  type of license issued and the fee, if any, paid for it.    Applications

 19  and  certificates  furnished  by  the  department shall be used for this

 20  purpose.

 21    b. A person who has lost or accidentally  destroyed  a  button  issued

 22  with  such  a  license  or  a hunting, Õjunior hunting,å junior archery,

 23  junior small game, small and big game, junior small and big game, combi-

 24  nation free hunting-big game hunting, combined hunting and big game,  or

 25  big game license tag may apply to the department for a duplicate and the

 26  department shall issue a duplicate button or tag when satisfied that the

 27  application  is  made  in good faith. A duplicate combination free hunt-

 28  ing-big game hunting tag shall be issued free of charge.

                                        153                        12334-02-0

  1    § 31. Subdivision 8 of section 11-0713 of the environmental  conserva-

  2  tion law is renumbered subdivision 5.

  3    §  32. Subdivision 2 of section 11-0715 of the environmental conserva-

  4  tion law, as amended by chapter 450 of the laws of 1991, is  amended  to

  5  read as follows:

  6    2.  A  resident  in the state for thirty days immediately prior to the

  7  date of application who has attained the age of seventy is  entitled  to

  8  receive a fishing license, a Õhuntingå small and big game license, a bow

  9  hunting  stamp,  a  muzzle-loading stamp, a trapping license, Õa special

 10  second deer permit, a big game hunting licenseå and  Õcombination  hunt-

 11  ing,  big  game  and  fishingå  sportsman  license Õfor the license year

 12  beginning October first, nineteen hundred ninety-one, and annually ther-

 13  eafter,å for a Õfourå five dollar license fee Õand  one  dollar  to  the

 14  issuing clerkå; a member of the Shinnecock tribe or the Poospatuck tribe

 15  or  a  member  of the six nations, residing on any reservation wholly or

 16  partly within the state, is entitled to receive free of charge a fishing

 17  license, a Õhuntingå small and big game license, a muzzle-loading stamp,

 18  Õa big game license,å a trapping license, Õa special second deer permitå

 19  and a bow hunting stamp; and a resident who  is  blind  is  entitled  to

 20  receive  a  fishing  license  free  of  charge. For the purposes of this

 21  subdivision a person is blind only if either:  (a)  his  central  visual

 22  acuity  does not exceed 20/200 in the better eye with correcting lenses,

 23  or (b) his visual acuity is greater than 20/200 but is accompanied by  a

 24  limitation  of  the field of vision such that the widest diameter of the

 25  visual field subtends an angle no greater than 20 degrees.

 26    A person entitled to a free license as provided  in  this  subdivision

 27  shall  be  issued  a  combination  free hunting-big game hunting-fishing

 28  license renewable each year.  Those  free  licensees  not  qualified  to

                                        154                        12334-02-0

  1  receive  a  hunting  license  shall have stamped across the face thereof

  2  "FISHING ONLY", and the issuing clerk  shall  destroy  the  accompanying

  3  back tag for such license.

  4    A  resident in the state for a period of thirty days immediately prior

  5  to the date of application who has attained the  age  of  sixty-five  is

  6  entitled  to receive a combined hunting, fishing and big game license at

  7  the cost of Õfourå five dollars as a license fee Õand one dollar to  the

  8  issuing clerkå.

  9    §  33. Subdivision 3 of section 11-0715 of the environmental conserva-

 10  tion law is REPEALED and a  new  subdivision  3  is  added  to  read  as

 11  follows:

 12    3.  Applicants for licenses or stamps shall pay to the issuing officer

 13  fees, according to the license or stamp  issued  and  the  residence  or

 14  other qualification of the applicant, as follows:

 15    a.  In  the  case  of persons who have been residents of the state for

 16  more than thirty days immediately preceding the date of  application  or

 17  who are enrolled in a full-time course at a college or university within

 18  the  state  and  who  are in residence in the state for the school year,

 19  Indians residing off reservations in the state and members of the United

 20  States armed forces in active service stationed in this state regardless

 21  of place of residence at the time of entry into service:

 22        License                           Fee

 23       (1) Super-sportsman                $64.00

 24       (2) Sportsman                      $34.00

 25       (3) Small and big game             $18.00

 26       (4) Fishing                        $19.00

 27       (5) Trapping                       $15.00

 28       (6) Hunting                        $14.00

                                        155                        12334-02-0

  1       (7) Junior trapping                $ 6.00

  2       (8) Muzzle-loading stamp           $15.00

  3       (9) Bowhunting stamp               $15.00

  4       (10) Turkey permit                 $ 5.00

  5       (11) Seven-day fishing             $10.00

  6    b. In the case of a non-resident and persons resident in the state for

  7  less  than  thirty  days, other than persons who are enrolled in a full-

  8  time course at a college or university within the state and who  are  in

  9  residence  in  the  state  for  the school year and those members of the

 10  United States armed forces as to whom fees are specified in paragraph  a

 11  of this subdivision:

 12        License                           Fee

 13       (1) Big game                       $110.00

 14       (2) Hunting                        $ 55.00

 15       (3) Fishing                        $ 40.00

 16       (4) Seven-day fishing              $ 25.00

 17       (5) Trapping                       $255.00

 18       (6) Super-sportsman                $250.00

 19       (7) Bowhunting                     $110.00

 20       (8) Muzzle-loading                 $110.00

 21       (9) Bear tag                       $ 30.00

 22       (10) Turkey permit                 $ 30.00

 23    c.  In all cases:

 24       (1) Certificates in lieu of lost license or stamp      $ 5.00

 25       (2) Duplicate for lost or destroyed button or tag      $10.00

 26       (3) Junior small game license                          $ 5.00

 27       (4) Junior small and big game                          $ 9.00

 28       (5) Junior archery                                     $ 9.00

                                        156                        12334-02-0

  1       (6) One-day fishing license                            $15.00

  2    §  34. Subdivision 4 of section 11-0715 of the environmental conserva-

  3  tion law, as amended by chapter 450 of the laws of 1991, is  amended  to

  4  read as follows:

  5    4. A person resident in the state for at least thirty days immediately

  6  prior to the date of application, who has been honorably discharged from

  7  service in the armed forces of the United States and certified as having

  8  a  forty per cent or greater service-connected disability is entitled to

  9  receive a combination hunting-big game hunting-fishing  license,  a  bow

 10  hunting  stamp,  a muzzle loading stamp and a trapping license renewable

 11  each year for a Õfourå five dollar fee Õand one dollar  to  the  issuing

 12  clerkå.

 13    § 35. Section 11-0715 of the environmental conservation law is amended

 14  by adding a new subdivision 6 to read as follows:

 15    6.  a.  License  issuing  officers may retain 1.1 percent of the gross

 16  proceeds from the sale of the following:

 17       (1) non-resident hunting license

 18       (2) big game license

 19       (3) non-resident trapping license

 20       (4) bear tag

 21       (5) non-resident bowhunting license

 22       (6) non-resident muzzle-loading license

 23       (7) non-resident super-sportsman license

 24       (8) non-resident turkey permit.

 25    b. License issuing officers  may  retain  5.5  percent  of  the  gross

 26  proceeds  from  sale  of  all  other  licenses, stamps, certificates and

 27  permits, including any application fees associated with  such  licenses,

 28  stamps, certificates and permits.

                                        157                        12334-02-0

  1    §  36.  Section  11-0717  of  the  environmental  conservation  law is

  2  REPEALED.

  3    § 37. The opening paragraph of paragraph a of subdivision 2 of section

  4  11-0719 of the environmental conservation law, as amended by chapter 119

  5  of the laws of 1999, is amended to read as follows:

  6    The  department  may revoke Õtheå any hunting, small and big game, big

  7  game, junior archery, bowhunting, muzzle-loading, the small and big game

  8  portion of the sportsman license, the small and big game, bowhunting  or

  9  muzzle-loading  portion  of  the  super-sportsman  license,  or trapping

 10  license or stamp or the hunting and big game  hunting  portions  of  the

 11  combination free hunting-big game hunting-fishing license, or any or all

 12  of  them,  or any stamp or tag, and deny the privilege of obtaining such

 13  license or stamp or such portions of Õthe combination  free  hunting-big

 14  game  hunting-fishingå  such  license  and  of  hunting  or  of trapping

 15  anywhere in the state, with or without a license,

 16    § 38. Subdivision 3 of section 11-0719 of the environmental  conserva-

 17  tion  law,  as amended by chapter 158 of the laws of 1999, is amended to

 18  read as follows:

 19    3. A junior hunting license issued to a person who is between the ages

 20  of twelve and sixteen years or junior archery,  junior  small  game,  or

 21  junior  small and big game license issued to a person who is between the

 22  ages of Õfourteenå twelve and  sixteen  years  may  be  revoked  by  the

 23  department  upon  proof satisfactory to the department that such person,

 24  while under the age of sixteen, has engaged in hunting wildlife  with  a

 25  gun  or  longbow, in circumstances in which a license is required, while

 26  not accompanied by his parent, guardian or other adult  as  provided  in

 27  either  subdivision  1 or subdivision 3 of section 11-0929 of this arti-

 28  cle. If such license or privilege is revoked the  department  shall  fix

                                        158                        12334-02-0

  1  the  period  of such revocation, which is not to exceed four years.  The

  2  department may require that such person successfully complete a  depart-

  3  ment  sponsored  course  and  obtain  a  certificate of qualification in

  4  responsible  hunting  or  responsible  bowhunting practices before being

  5  issued another hunting or bowhunting license.

  6    § 39. Paragraph b of subdivision 7 of section 11-0903 of the  environ-

  7  mental  conservation  law, as amended by chapter 57 of the laws of 1993,

  8  is amended to read as follows:

  9    b. Deer may be taken only by holders of Õbig game or combined resident

 10  hunting, fishing and big game or combination free hunting-big game hunt-

 11  ing-fishing  or  combined  non-resident  hunting,  fishing,  big   game,

 12  bowhunting  and  muzzle-loading or non-resident bowhunting and non-resi-

 13  dent muzzle-loading licenseså a license authorizing the  taking  of  big

 14  game  who have also obtained a special permit provided by the department

 15  and issued by the town clerk of each town where such season is fixed;

 16    § 40. Subparagraph 1 of  paragraph  e  of  subdivision  9  of  section

 17  11-0903 of the environmental conservation law, as amended by chapter 911

 18  of the laws of 1990, is amended to read as follows:

 19    (1)  a  requirement that hunting deer during such special season shall

 20  be only by holders of both a Õbig gameå license authorizing  the  taking

 21  of  big  game and a special permit for the area where hunting is permit-

 22  ted,

 23    § 41. Paragraph a of subdivision 1 of section 11-0907 of the  environ-

 24  mental  conservation law, as amended by chapter 330 of the laws of 1994,

 25  is amended to read as follows:

 26    a. Wild deer without antlers or having  antlers  measuring  less  than

 27  three inches in length shall not be taken unless it is taken (1) by long

 28  bow  in  a  special long bow season established in subdivision 3 of this

                                        159                        12334-02-0

  1  section, or (2) by muzzle-loading firearm in  a  special  muzzle-loading

  2  firearm  season  established in subdivision 8 of this section, or (3) by

  3  long bow in Westchester and Suffolk Counties in a year in which a  regu-

  4  lar  season  for deer of either sex is established for such counties, or

  5  (4) in a special open season for deer  of  either  sex  fixed  by  order

  6  pursuant  to subdivision 5 or 7 of section 11-0903 of this title, or (5)

  7  pursuant to a special antlerless deer license in a special  open  season

  8  for antlerless deer in a tract within a Wilderness Hunting Area fixed by

  9  regulation  pursuant  to subdivision 6 of section 11-0903 of this title,

 10  or (6) pursuant to a deer management permit by a person eligible to take

 11  such deer pursuant thereto as provided in section 11-0913 of this title,

 12  or (7) pursuant to a permit issued to an eligible non-ambulatory person,

 13  pursuant to subdivision Õtwoå 2 of section 11-0931 of this title,  while

 14  in  possession of a valid small and big game, junior small and big game,

 15  sportsman, super-sportsman or a big game license issued by  the  depart-

 16  ment. Nothing in this subparagraph shall be construed to limit the power

 17  of  the  department  to  designate by regulation an area or areas of the

 18  state consisting of a county or part of a county where such season shall

 19  apply and whether the number of such special permits shall be limited.

 20    § 42. Paragraph c of subdivision 1 of section 11-0907 of the  environ-

 21  mental  conservation law, as amended by chapter 600 of the laws of 1993,

 22  is amended to read as follows:

 23    c. The limit for wild deer is one deer per person in  a  license  year

 24  except  that  (1)  a  person  entitled  to  exercise the privileges of a

 25  special antlerless deer license may take an antlerless deer while  hunt-

 26  ing  pursuant  to such license in addition to the limit of one deer in a

 27  license year otherwise applicable, and (2) a person who is a member of a

 28  hunting group holding a deer management permit or permits issued  pursu-

                                        160                        12334-02-0

  1  ant to section 11-0913 may take additional deer while hunting in accord-

  2  ance  with the conditions of the permit or permits, Õandå (3) the holder

  3  of a bowhunting stamp and a muzzle-loading  stamp  may  take  additional

  4  deer  in  accordance  with  the  conditions  of those stamps, and (4) an

  5  eligible non-ambulatory person,  pursuant  to  subdivision  Õtwoå  2  of

  6  section  11-0931  of  this  chapter may take a deer of either sex in any

  7  deer management unit area where deer management permits have been issued

  8  by the department, while in possession of a valid small  and  big  game,

  9  junior  small  and  big  game,  sportsman,  super-sportsman  or big game

 10  license and a special big game permit, issued by the department,  for  a

 11  fee  of  five  dollars.  Nothing  contained  in  this  section  shall be

 12  construed to limit the power of the department  to  designate  by  regu-

 13  lation an area or areas of the state consisting of a county or part of a

 14  county  where  such  season  shall  apply and whether the number of such

 15  special permits shall be limited.

 16    § 43. Paragraph c of subdivision 1 of section 11-0907 of the  environ-

 17  mental  conservation  law, as amended by chapter 911 of the laws of 1990

 18  and subparagraph 2 as amended by chapter 119 of the  laws  of  1991,  is

 19  amended to read as follows:

 20    c.  The  limit  for  wild  deer  and bear is one deer and one bear per

 21  person in a license year except that (1) a person entitled  to  exercise

 22  the  privileges of a special antlerless deer license may take an antler-

 23  less deer while hunting pursuant to such  license  in  addition  to  the

 24  limit  of  one  deer  in  a license year otherwise applicable, and (2) a

 25  person who is a member of a hunting  group  holding  a  deer  management

 26  permit or permits issued pursuant to section 11-0913 may take additional

 27  deer  while  hunting  in accordance with the conditions of the permit or

 28  permits, Õandå (3) the holder of a bowhunting stamp and a muzzle-loading

                                        161                        12334-02-0

  1  stamp may take additional deer in  accordance  with  the  conditions  of

  2  those  stamps,  and  (4)  an eligible non-ambulatory person, pursuant to

  3  subdivision Õtwoå 2 of section 11-0931 of this chapter may take  a  deer

  4  of  either  sex  in  any deer management unit area where deer management

  5  permits have been issued by the department, while  in  possession  of  a

  6  valid  small  and big game, junior small and big game, sportsman, super-

  7  sportsman or big game license and a special big game permit,  issued  by

  8  the  department,  for  a  fee of five dollars. Nothing contained in this

  9  section shall be construed to limit  the  power  of  the  department  to

 10  designate  by  regulation  an area or areas of the state consisting of a

 11  county or part of a county where such season shall apply and whether the

 12  number of such special permits shall be limited.

 13    § 44. Paragraphs d and e of subdivision 1 of section  11-0907  of  the

 14  environmental conservation law are REPEALED and two new paragraphs d and

 15  e are added to read as follows:

 16    d. (1) A person who holds a super-sportsman license or a small and big

 17  game  or  sportsman license to which a valid bowhunting stamp is affixed

 18  or a non-resident bowhunting or combined non-resident hunting,  fishing,

 19  big game, bowhunting and muzzle-loading license and who has taken a deer

 20  by  longbow  in  a  special  archery season and who has not taken a deer

 21  pursuant to the privileges of a license authorizing the  taking  of  big

 22  game  in a regular open season may, in addition to the limit of one deer

 23  in a license year otherwise applicable, take  during  the  same  license

 24  year  an additional deer in a special archery season following the close

 25  of the regular open deer season.

 26    (2) A person who holds a super-sportsman license or a  small  and  big

 27  game  license  or sportsman license to which a valid bowhunting stamp is

 28  affixed or a non-resident bowhunting or combined  non-resident  hunting,

                                        162                        12334-02-0

  1  fishing,  big  game,  bowhunting  and muzzle-loading license and who has

  2  taken a deer by longbow in the regular open season for deer in Westches-

  3  ter or Suffolk counties may, in addition to the limit of one deer  in  a

  4  license  year otherwise applicable, take during the same license year an

  5  additional deer during such Westchester or Suffolk county  regular  open

  6  deer season.

  7    e.  A  person  who  holds a super-sportsman license or a small and big

  8  game, combination free hunting-big  game  hunting-fishing  or  sportsman

  9  license to which a valid muzzle-loading stamp is affixed, or a non-resi-

 10  dent muzzle-loading or combined non-resident hunting, fishing, big game,

 11  bowhunting  and  muzzle-loading  license  and  who  has  taken a deer by

 12  muzzle-loading firearm in a muzzle-loading season and who has not  taken

 13  a deer pursuant to the privileges of a license authorizing the taking of

 14  big  game  in a regular open season may, in addition to the limit of one

 15  deer in a license year otherwise applicable, take during the  same  year

 16  an  additional  deer  in  a  special muzzle-loading season following the

 17  close of the regular deer season.

 18    § 45. Paragraph a of subdivision 3 of section 11-0907 of the  environ-

 19  mental  conservation law, as amended by chapter 600 of the laws of 1993,

 20  is amended to read as follows:

 21    a. In every area identified in column one of the table  set  forth  in

 22  subdivision  2  of this section, except Westchester and Suffolk Counties

 23  in which a regular open season for taking deer  by  firearms  is  estab-

 24  lished  and  effective,  a special open season is established for taking

 25  deer of either sex, by the use of a long bow only by holders of  a  Õbig

 26  game,  combined  small  game and big game, combined hunting, fishing and

 27  big gameå small and big game, sportsman, super-sportsman or  combination

 28  free  hunting-big game hunting-fishing license to which a valid bowhunt-

                                        163                        12334-02-0

  1  ing stamp is affixed or a junior archery license  or  to  holders  of  a

  2  non-resident bowhunting license.

  3    §  46. Paragraph a of subdivision 3 of section 11-0907 of the environ-

  4  mental conservation law, as amended by chapter 694 of the laws of  1980,

  5  is amended to read as follows:

  6    a.  In  every  area identified in column one of the table set forth in

  7  subdivision 2 of this section, except Westchester and  Suffolk  Counties

  8  in  which  a  regular  open season for taking deer by firearms is estab-

  9  lished and effective, a special open season is  established  for  taking

 10  deer  of  either sex, and bear, by the use of a long bow only by holders

 11  of a Õbig game, combined small game  and  big  game,  combined  hunting,

 12  fishing  and big gameå small and big game, sportsman, super-sportsman or

 13  combination free hunting-big game hunting-fishing  license  to  which  a

 14  valid  bowhunting  stamp  is  affixed  or a junior archery license or to

 15  holders of a non-resident bowhunting license.

 16    § 47. Paragraph a of subdivision 5 of section 11-0907 of the  environ-

 17  mental  conservation law, as amended by chapter 768 of the laws of 1978,

 18  is amended to read as follows:

 19    a. In Monroe County, the area bounded and described as  follows:    On

 20  the  west by Route 261 (Manitou Road) beginning at Manitou Beach on Lake

 21  Ontario in the town of Greece and continuing southerly along  such  road

 22  to  its  intersection  with  the Barge Canal, thence easterly along such

 23  canal to East Avenue in the village of Pittsford,  thence  northeasterly

 24  along  East Avenue to Allen Creek in the town of Brighton, thence north-

 25  erly along Allen Creek to  Irondequoit  Creek,  thence  northerly  along

 26  Irondequoit Creek to Irondequoit Bay, thence northerly along the easter-

 27  ly  shore of Irondequoit Bay to Lake Ontario; except that deer of either

 28  sex may be taken by the use of a long bow by holders of a small and  big

                                        164                        12334-02-0

  1  game  or sportsman or super-sportsman license to which a valid bow hunt-

  2  ing stamp is affixed or a junior archery license during the regular  and

  3  special  deer  hunting  seasons  provided for in this title and provided

  4  further  that this exception permitting the taking of deer by a long bow

  5  shall not apply within an  area  in  the  town  of  Greece  bounded  and

  6  described  as  follows: On the west by Long Pond Road beginning at Latta

  7  Road and continuing southerly along such road to its  intersection  with

  8  Maiden  Lane, thence easterly along Maiden Lane to its intersection with

  9  Mt. Read Blvd., thence northerly along Mt.  Read  Blvd.  to  its  inter-

 10  section  with Latta Road, thence westerly along Latta Road to its inter-

 11  section with Long Pond Road at the point of beginning.

 12    § 48. Paragraph a of subdivision 7 of section 11-0907 of the  environ-

 13  mental  conservation law, as amended by chapter 272 of the laws of 1983,

 14  is amended to read as follows:

 15    a. The area described in this subdivision is closed to the  taking  of

 16  deer  and bear by firearms, but shall be open for taking deer by the use

 17  of a long bow only by holders of a small and big game,  Õcombined  small

 18  game  and  big  game, combined hunting, fishing and big gameå sportsman,

 19  super-sportsman or combination  free  hunting-big  game  hunting-fishing

 20  license to which a valid bowhunting stamp is affixed or a junior archery

 21  license,  as  follows: during the special deer season stated in subdivi-

 22  sion three and during the regular season stated in subdivision  Õtwoå  2

 23  of this section, deer of either sex may be taken.

 24    §  49. Paragraph a of subdivision 8 of section 11-0907 of the environ-

 25  mental conservation law, as amended by chapter 241 of the laws of  1997,

 26  is amended to read as follows:

 27    a.  In  every  area identified in column one of the table set forth in

 28  subdivision 2 of this section, except those areas restricted to  special

                                        165                        12334-02-0

  1  seasons  for  taking  deer  by longbow only, special open seasons may be

  2  established by regulation for taking deer and/or bear,  by  the  use  of

  3  muzzle-loading  firearms, of not less than .44 caliber shooting a single

  4  projectile, by the holders of a small and big game, Õcombined small game

  5  and  big  game,  combined  hunting,  fishing  and big gameå sportsman or

  6  super-sportsman or combination  free  hunting-big  game  hunting-fishing

  7  license  to  which  a  valid muzzle-loading stamp is affixed or a junior

  8  small and big game license.

  9    § 50. Paragraphs a and b of subdivision 1 of section  11-0911  of  the

 10  environmental conservation law are REPEALED and two new paragraphs a and

 11  b are added to read as follows:

 12    a.  When  a  wild  deer  is taken the taker shall immediately fill in,

 13  using ink, ball point pen or indelible pencil, the deer tags  issued  to

 14  the  taker as provided in regulations of the department. The taker shall

 15  immediately cut out or mark the month and date of kill on  the  tag  and

 16  shall  attach it to the deer, except that it need not be attached to the

 17  deer while it is being dragged or physically carried by the taker  to  a

 18  camp  or  point where other transportation is available. The taker shall

 19  report details of the location and date of harvest and data on the  deer

 20  as required by regulation.

 21    b. When a bear is taken, the taker shall fill out the bear report form

 22  issued  to  the taker as provided in regulations of the department.  The

 23  taker shall send the report form to  the  department  within  five  days

 24  after  the  close  of  the  open season in the county where the bear was

 25  taken.

 26    § 51. Subdivision 3 of section 11-0911 of the environmental  conserva-

 27  tion  law,  as amended by chapter 600 of the laws of 1993, is amended to

 28  read as follows:

                                        166                        12334-02-0

  1    3. If a taker is a member of a party of deer hunters, after  attaching

  2  the  deer  tag  Õmarked  "Original"å  issued to the taker as provided in

  3  regulations of the department to his deer, he may, for the  duration  of

  4  the  joint  hunt only, continue to assist the other members of the party

  5  to take deer if he carries no firearm or long bow and has his license on

  6  his  person,  or he may hunt bear as permitted by the regulations estab-

  7  lished pursuant to subdivision 8 of section 11-0903.

  8    § 52. Subdivisions 3, 4 and 7 of section 11-0913 of the  environmental

  9  conservation  law,  as  amended  by  chapter 57 of the laws of 1993, are

 10  amended to read as follows:

 11    3. Each member of a group issued a permit  pursuant  to  this  section

 12  shall  possess  a small and big game, a junior small and big game, a big

 13  game, Õcombined resident  hunting,  fishing  and  big  gameå  sportsman,

 14  super-sportsman,   combination  free  hunting-big  game  hunting-fishing

 15  license or combined non-resident hunting, fishing, big game,  bowhunting

 16  and muzzle-loading license before the permit may be validated.

 17    4.  During a license year, no person shall use more than one small and

 18  big game, junior small and big game, big game, Õcombined resident  hunt-

 19  ing,  fishing and big gameå sportsman, super-sportsman, combination free

 20  hunting-big game hunting-fishing license or Õcombined non-resident hunt-

 21  ing, fishing, big game, bowhunting and muzzle-loading licenseå in making

 22  application for a deer management permit.

 23    7. The department shall charge and receive a fee of  ten  dollars  for

 24  the  application  and  the processing of such permit or permits.  Appli-

 25  cants who are successful in the computerized selection shall receive the

 26  permit or permits free of any additional  charge.  The  application  fee

 27  shall  be  non-refundable.  The department may waive the application fee

 28  for holders of a Õcombined  resident  hunting,  fishing  and  big  gameå

                                        167                        12334-02-0

  1  junior  small  and big game, sportsman, or super-sportsman license Õor a

  2  combined  non-resident  hunting,  fishing,  big  game,  bowhunting   and

  3  muzzle-loading licenseå.

  4    §  53.  Section  11-0929  of  the  environmental  conservation law, as

  5  amended by chapter 694 of the laws of 1980 and subdivisions 1 and  3  as

  6  amended  by  chapter  450  of  the  laws  of 1991, is amended to read as

  7  follows:

  8  § 11-0929. Hunting by minors.

  9    1. A licensee between the ages of twelve and fourteen years shall  not

 10  hunt wildlife with a gun or a longbow unless he or she is accompanied by

 11  his  or her parent or legal guardian or relative over the age of twenty-

 12  one designated in writing by his or her parent who holds a small and big

 13  game, hunting, Õor combined hunting, fishing and  big  gameå  sportsman,

 14  super-sportsman  or  combination  free  hunting-big game hunting-fishing

 15  license; a licensee between the ages of fourteen and sixteen  shall  not

 16  hunt  wildlife  with a gun or longbow unless he or she is accompanied by

 17  his or her parent holding such license, or a person over eighteen  years

 18  of  age,  designated  in writing by his or her parent or legal guardian,

 19  holding such license.

 20    2. A licensee under the age of eighteen years who has  not  previously

 21  had a junior small and big game, small and big game, big game, Õcombined

 22  small  game  and  big  game  or  combined  hunting, fishing and big game

 23  licenseå sportsman or super-sportsman issued to him and engaged in hunt-

 24  ing pursuant to it shall not hunt deer or  bear  unless  he  or  she  is

 25  accompanied  by  his parent or legal guardian, or by a person over eigh-

 26  teen years of age who has had at least one year's experience in  hunting

 27  deer  or  bear, and such accompanying parent, guardian or person holds a

 28  small and big game,  big  game,  Õcombined  small  game  and  big  game,

                                        168                        12334-02-0

  1  combined  hunting, fishing and big gameå or sportsman or super-sportsman

  2  or combination free hunting-big game hunting-fishing license.

  3    3. A junior archery licensee, between the ages of fourteen and sixteen

  4  years,  shall  not  hunt  deer  or  bear unless he is accompanied by his

  5  parent or legal guardian, or by a person over eighteen years of age  who

  6  has  had at least one year's experience in hunting deer or bear by long-

  7  bow, and such accompanying parent, guardian or person holds a small  and

  8  big  game,  big game, Õcombined hunting, fishing and big gameå sportsman

  9  or super-sportsman or combination free hunting-big game  hunting-fishing

 10  license with a bowhunting stamp affixed.

 11    §  54.  Section 83 of the state finance law is amended by adding a new

 12  subdivision (h) to read as follows:

 13    (h) All moneys, revenues and interest thereon received as a result  of

 14  the  application of subdivision eighteen of section 11-0305 of the envi-

 15  ronmental conservation law authorizing the issuance and sale  of  volun-

 16  tary habitat stamps, other than the amount retained by the issuing agent

 17  or officer, shall be deposited in a special account within the conserva-

 18  tion fund to be known as the habitat account. All of such moneys, reven-

 19  ues  and  interest shall be available to the department of environmental

 20  conservation, pursuant to appropriation, exclusively for fish and  wild-

 21  life  habitat  management  and the improvement and development of public

 22  access for hunting, fishing, trapping and other fish and wildlife-relat-

 23  ed recreation and study.

 24    § 55. This act shall take effect on the  first  day  of  October  next

 25  succeeding  the  date on which it shall have become a law; provided that

 26  the amendments to paragraph c of subdivision 1 of section 11-0907 of the

 27  environmental conservation law, made by section forty-two of  this  act,

 28  shall  not affect the expiration and reversion of such paragraph, pursu-

                                        169                        12334-02-0

  1  ant to chapter 600 of the laws of 1993 as amended, when upon  such  date

  2  the  provisions  of  section  forty-three of this act shall take effect;

  3  provided, further, that the amendments to paragraph a of  subdivision  3

  4  of  section  11-0907  of  the  environmental  conservation  law, made by

  5  section forty-five of this act, shall  not  affect  the  expiration  and

  6  reversion of such paragraph, pursuant to chapter 600 of the laws of 1993

  7  as  amended,  when upon such date the provisions of section forty-six of

  8  this act shall take effect; provided,  further  that  subdivision  3  of

  9  section  11-0911  of  the environmental conservation law made by section

 10  fifty-one of this act shall not affect the expiration and  reversion  of

 11  such subdivision and shall be deemed to expire therewith.

 12                                   PART G

 13    Section  1.      The  real property tax law is amended by adding a new

 14  section 480-b to read as follows:

 15    § 480-b.  State reimbursement for forest tax exemptions. 1. A  county,

 16  town  or  school district containing eligible private forest lands shall

 17  be eligible for state reimbursement as provided by this  section.    For

 18  purposes  of this section, "eligible private forest lands" means private

 19  forest tracts receiving an exemption pursuant to  section  four  hundred

 20  eighty or four hundred eighty-a of this title, excluding any tract which

 21  is or had been a certified tract on which penalties are imposed pursuant

 22  to section four hundred eighty or four hundred eighty-a of this title.

 23    2.  The  county  treasurer  of  any county containing eligible private

 24  forest lands shall submit to the state board a list of  any  changes  to

 25  the  assessed  value,  taxable  status or acreage of all such lands made

 26  subsequent to the filing of those assessment  rolls  upon  which  county

                                        170                        12334-02-0

  1  taxes  are  extended, and the county tax rate and town tax rate extended

  2  against any parcel receiving one of those exemptions.

  3    3.  The  business  manager  of any school district containing eligible

  4  private forest lands shall submit to the  state  board  a  list  of  any

  5  changes  to  the  assessed  value, taxable status or acreage of all such

  6  lands made subsequent to the filing of those assessment rolls upon which

  7  school taxes are extended, and the school tax rate extended against  any

  8  parcel receiving one of those exemptions.

  9    4.  The state board shall compute the amount of state assistance paya-

 10  ble to or for the benefit of  a  county,  town  or  school  district  on

 11  account of eligible private forest lands.

 12    5. (a) The amount of state assistance paid to a county, town or school

 13  district pursuant to this section shall equal the taxes which would have

 14  been  levied  for  county,  town  or  school  district purposes upon the

 15  assessed valuation partially exempt from taxation on  the  latest  final

 16  assessment  roll of the eligible private forest lands, minus one percent

 17  of the total real property tax levy for county, town or school  district

 18  purposes  for  the current year, provided that the amount payable to any

 19  county, town or school district  pursuant  to  this  section  shall  not

 20  exceed  the maximum payment prescribed by paragraph (b) of this subdivi-

 21  sion.

 22    (b) The maximum payment to a county, town or school district  pursuant

 23  to this section shall be determined as follows:

 24    (i) Multiply the total acreage of the eligible private forest lands in

 25  the  county, town or school district on the latest final assessment roll

 26  by the average forest land value per acre, as determined  by  the  state

 27  board  based on sales of forest parcels of at least fifty acres through-

 28  out the region;

                                        171                        12334-02-0

  1    (ii) Multiply the result by the full value tax rate for  county,  town

  2  or school district purposes for the current year; and

  3    (iii) Subtract from the product one percent of the total real property

  4  tax  levy  for  county, town or school district purposes for the current

  5  year.

  6    6. The state board shall certify to the state comptroller  the  amount

  7  of  state  assistance payable pursuant to this section, and shall mail a

  8  copy of such certification to the county treasurer of  each  county  and

  9  business  manager  of  each  school district containing eligible private

 10  forest tracts. Such state assistance shall be paid on audit and  warrant

 11  of  the  comptroller  out  of monies appropriated by the legislature for

 12  state assistance to counties,  towns  and  school  districts  containing

 13  eligible private forest tracts.

 14    7.  If  it  should appear to the state board that an error was made in

 15  the calculation of state assistance pursuant to subdivision five of this

 16  section and as a result of that  error  an  incorrect  amount  of  state

 17  assistance  was  paid  to  a  county, town or school district, the state

 18  board shall determine the difference between the assistance paid and the

 19  assistance that should have been paid and shall adjust  the  next  state

 20  assistance  certified  for  such county, town or school district by that

 21  difference.

 22    § 2. This act shall  take  effect  immediately,  provided  that  state

 23  assistance  payments  pursuant to section 480-b of the real property tax

 24  law, as added by section one of  this  act,  shall  be  limited  to  the

 25  amounts  appropriated  by the legislature for this purpose, and shall be

 26  submitted based upon the assessment rolls with final completion dates on

 27  or after July 1, 2000.

                                        172                        12334-02-0

  1                                   PART H

  2    Section  1.  Paragraph a of subdivision 2 of section 92-s of the state

  3  finance law, as added by chapter 610 of the laws of 1993, is amended  to

  4  read as follows:

  5    a. The comptroller shall establish the following separate and distinct

  6  accounts within the environmental protection fund:

  7    (i) solid waste account;

  8    (ii) parks, recreation and historic preservation account;

  9    (iii) open space account; Õandå

 10    (iv) Hudson River estuary trust account; and

 11    (v) environmental protection transfer account.

 12    § 2. Paragraphs (a), (b), (c) and (d) of subdivision 6 of section 92-s

 13  of the state finance law, as amended by chapter 432 of the laws of 1997,

 14  are amended to read as follows:

 15    (a) All moneys heretofore and hereafter deposited in the environmental

 16  protection  transfer  account shall be transferred by the comptroller to

 17  the solid waste account, the parks, recreation and historic preservation

 18  account Õorå, the open space account or the Hudson River  estuary  trust

 19  account upon the request of the director of the budget.

 20    (b)  Moneys  from the solid waste account shall be available, pursuant

 21  to appropriation and upon certificate of approval of availability by the

 22  director of the budget, for any non-hazardous municipal landfill closure

 23  project; municipal waste reduction or recycling project, as  defined  in

 24  article  fifty-four  of  the  environmental  conservation  law;  for the

 25  purposes of section  two  hundred  sixty-one  and  section  two  hundred

 26  sixty-four of the economic development law; any project for the develop-

 27  ment,  updating or revision of local solid waste management plans pursu-

                                        173                        12334-02-0

  1  ant to sections 27-0107 and 27-0109 of  the  environmental  conservation

  2  law;  Õandå for the development of the pesticide sales and use data base

  3  in conjunction with Cornell University pursuant to title twelve of arti-

  4  cle  thirty-three  of  the  environmental  conservation law; and for any

  5  project to assess and recover any natural resource damages to the Hudson

  6  River.

  7    (c) Moneys  from  the  parks,  recreation  and  historic  preservation

  8  account shall be available, pursuant to appropriation, for any municipal

  9  park   project,  historic  preservation  project,  urban  cultural  park

 10  project,  waterfront  revitalization  program,  coastal   rehabilitation

 11  project,  state  parks and lands infrastructure and stewardship project,

 12  Hudson River Park project consistent with chapter five  hundred  ninety-

 13  two of the laws of nineteen hundred ninety-eight.

 14    (d) Moneys from the open space account shall be available, pursuant to

 15  appropriation,  for any open space land conservation project, bio-diver-

 16  sity stewardship and research pursuant to chapter  five  hundred  fifty-

 17  four  of  the laws of nineteen hundred ninety-three, for the purposes of

 18  agricultural and farmland protection activities as authorized by article

 19  twenty-five-AAA of the agriculture and  markets  law,  non-point  source

 20  abatement  and control projects pursuant to section 17-1409 of the envi-

 21  ronmental conservation law and section eleven-b of the  soil  and  water

 22  conservation  districts law, soil and water conservation district activ-

 23  ities authorized for reimbursement pursuant to section eleven-a  of  the

 24  soil  and water conservation districts law, for Long Island Central Pine

 25  Barrens area planning or Long Island south shore estuary  reserve  plan-

 26  ning  pursuant  to  title thirteen of article fifty-four of the environ-

 27  mental conservation lawÕ.  Moneys from the open space account shall also

 28  be available until March  thirty-first,  nineteen  hundred  ninety-nine,

                                        174                        12334-02-0

  1  pursuant  to  appropriationå, for the state reimbursement for forest tax

  2  exemptions pursuant to section four hundred eighty-b of the real proper-

  3  ty tax law, for  operation  and  management  of  the  Albany  Pine  Bush

  4  preserve  commission  pursuant  to subdivision two of section 54-0303 of

  5  the environmental conservation law, and for New York state's  membership

  6  in  the  following interstate pollution control commissions set forth in

  7  article twenty-one of the environmental conservation law:  the  Delaware

  8  River basin commission, the Susquehanna River basin commission, the Ohio

  9  River  valley water sanitation commission, the Great Lakes basin commis-

 10  sion, the interstate sanitation commission and the  New  England  inter-

 11  state water pollution control commission.

 12    § 3. Subdivision 6 of section 92-s of the state finance law is amended

 13  by adding a new paragraph (f) to read as follows:

 14    (f) Moneys from the Hudson River estuary trust account shall be avail-

 15  able,  pursuant  to  appropriation, for projects to implement the Hudson

 16  River estuary management plan prepared pursuant to  section  11-0306  of

 17  the environmental conservation law.

 18    §  4.  Article  54 of the environmental conservation law is amended by

 19  adding a new title 14 to read as follows:

 20                                  TITLE 14

 21        STATE PARKS AND LANDS INFRASTRUCTURE AND STEWARDSHIP PROJECTS

 22  Section 54-1401. Definitions.

 23          54-1402. State parks and lands  infrastructure  and  stewardship

 24          projects.

 25  § 54-1401. Definitions.

 26    As used in this title:

 27    1.  "Stewardship"  shall  mean  the  care of the lands, facilities and

 28  natural and cultural resources under the jurisdiction of the  department

                                        175                        12334-02-0

  1  and  the office of parks, recreation and historic preservation on behalf

  2  of the public, and the provision of public access thereto.

  3    2.  "State  parks  and  lands  infrastructure"  shall  mean state park

  4  resources, recreational facilities and  historic  sites  and  any  other

  5  property, real or personal, under the jurisdiction of the department and

  6  the office of parks, recreation and historic preservation, together with

  7  machinery,  equipment, furnishings and fixtures relating thereto or used

  8  in connection therewith.

  9    3. "State parks and lands  infrastructure  and  stewardship  projects"

 10  shall  mean  all costs incurred or to be incurred by or on behalf of the

 11  department and the office of parks, recreation and historic preservation

 12  for the purpose of preserving, improving or rehabilitating  state  parks

 13  and lands infrastructure.  Such projects may include, but are not limit-

 14  ed  to:  natural resource and habitat restoration and protection such as

 15  the protection and management of biological, land,  geological,  archeo-

 16  logical  and  other  natural resources, survey and inventory, scientific

 17  research, planning and analysis,  and  development  of  unit  management

 18  plans;  projects to improve public access including access opportunities

 19  for people with disabilities by developing,  restoring,  reconstructing,

 20  rehabilitating  and  maintaining  physical facilities, including but not

 21  limited  to  buildings,  roads,  bridges  and  waste  disposal  systems;

 22  projects  to  develop,  maintain, or improve marine resource facilities,

 23  water access  facilities,  recreational  trails,  campgrounds,  day  use

 24  areas, fish hatcheries, public beach facilities, visitor centers, inter-

 25  pretive and conservation education facilities; and historic preservation

 26  projects  to  improve,  restore  or  rehabilitate property listed on the

 27  state or national registers of historic places to protect the  historic,

 28  cultural or architectural significance thereof.

                                        176                        12334-02-0

  1  §   54-1402.  State  parks  and  lands  infrastructure  and  stewardship

  2  projects.  1. The commissioner and the commissioner of parks, recreation

  3  and historic preservation are authorized to undertake  state  parks  and

  4  lands infrastructure and stewardship projects.

  5    2.  No  monies shall be expended for state parks and lands infrastruc-

  6  ture and stewardship projects except pursuant to an appropriation there-

  7  for.

  8    § 5. Subdivision 7 of  section  92-s  of  the  state  finance  law  is

  9  REPEALED.

 10    §  6.  Subdivision 2 of section 54-0509 of the environmental conserva-

 11  tion law, as amended by section 18 of part A of chapter 58 of  the  laws

 12  of 1998, is amended to read as follows:

 13    2.  An agreement by the commissioner to make state assistance payments

 14  toward  the  cost of the project by periodically reimbursing the munici-

 15  pality for costs incurred during the progress of the project to a  maxi-

 16  mum  of  either  fifty  percent  of  the  cost, or Õseventy-fiveå ninety

 17  percent of the cost for a municipality with a  population  smaller  than

 18  thirty-five  hundred  as  determined  by  the  current federal decennial

 19  census, or two million dollars, whichever is less. The commissioner  may

 20  consider  landfill  gas  management  projects  separately  from landfill

 21  closure projects.   Such costs are  subject  to  final  computation  and

 22  determination  by  the  commissioner upon completion of the project, and

 23  shall not exceed the maximum cost  set  forth  in  the  contract.    For

 24  purposes of this subdivision, the approved project cost shall be reduced

 25  by  the  amount  of  any specific state assistance payments for landfill

 26  closure project purposes received by the municipality from  any  source;

 27  provided,  however, that non-specific state assistance payments, such as

                                        177                        12334-02-0

  1  amounts paid pursuant to section fifty-four of the  state  finance  law,

  2  shall not be included in such cost reduction.

  3    §  7.  This  act  shall take effect immediately and shall be deemed to

  4  have been in full force and effect on and after April 1, 2000.

  5                                   PART I

  6    Section 1. Subdivision c of section 8 of section 4 of chapter  576  of

  7  the  laws  of 1974 constituting the emergency protection act of nineteen

  8  seventy-four, as amended by chapter 403 of the laws of 1983, is  amended

  9  to read as follows:

 10    c.  Whenever  a  city  having  a population of one million or more has

 11  determined the existence of an emergency pursuant to  section  three  of

 12  this act, the provisions of this act and the New York city rent stabili-

 13  zation  law  of nineteen hundred sixty-nine shall be administered by the

 14  state division of housing and community renewal as provided in  the  New

 15  York  city  rent  stabilization  law  of nineteen hundred sixty-nine, as

 16  amended, or as otherwise provided by law.  The  costs  incurred  by  the

 17  state  division  of  housing and community renewal in administering such

 18  regulation shall be paid by such city. All payments  for  such  adminis-

 19  tration shall be transmitted to the state division of housing and commu-

 20  nity renewal as follows: on or after April first of each year commencing

 21  with  April,  nineteen  hundred eighty-four, the commissioner of housing

 22  and community renewal shall determine an amount necessary to defray  the

 23  division's anticipated annual cost, and one-quarter of such amount shall

 24  be  paid  by such city on or before July first of such year, one-quarter

 25  of such amount on or before October first of such year,  one-quarter  of

 26  such  amount  on  or before January first of the following year and one-

                                        178                        12334-02-0

  1  quarter of such amount on or before March thirty-first of the  following

  2  year.  After the close of the fiscal year of the state, the commissioner

  3  shall determine the amount of all actual costs incurred in  such  fiscal

  4  year  and  shall  certify  such  amount  to such city. If such certified

  5  amount shall differ from the amount paid by the  city  for  such  fiscal

  6  year,  appropriate  adjustments  shall  be  made  in  the next quarterly

  7  payment to be made by such city. In the event that the amount thereof is

  8  not paid to the commissioner  as  herein  prescribed,  the  commissioner

  9  shall  certify the unpaid amount to the comptroller, and the comptroller

 10  shall, to the extent not otherwise  prohibited  by  law,  withhold  such

 11  amount  from  the next succeeding payment of per capita assistance to be

 12  apportioned to such city. In no event shall the amount  imposed  on  the

 13  owners Õor certified by the division to the cityå exceed ten dollars per

 14  unit per year.

 15    § 2. This act shall take effect April 1, 2000.

 16                                   PART J

 17    Section  1.   Funds appropriated from the statewide energy improvement

 18  account, special revenue fund - other, for services and expenses of  the

 19  power  authority of the state of New York, shall be available for energy

 20  efficiency projects. The use of these funds is not intended to limit the

 21  right or obligation of the power authority of the state of New  York  to

 22  comply  with  the  provisions  of  any  contract, including any existing

 23  contract with or for the benefit of the holders of  any  obligations  of

 24  the power authority.

 25    §  2.  The  power  authority  of  the state of New York shall transfer

 26  $1,500,000 to New York state on or before March 31, 2001.

                                        179                        12334-02-0

  1    § 3. Notwithstanding section 1010-a of the public authorities law, the

  2  comptroller is hereby authorized and directed to transfer to  the  power

  3  authority  of  the  state  of  New  York $1,500,000, constituting monies

  4  appropriated to the statewide energy improvement account for  the  power

  5  authority  of the state of New York pursuant to a chapter of the laws of

  6  2000 enacting the transportation, economic development and environmental

  7  conservation bill, and the power authority of the state of New  York  is

  8  authorized  to  hold such monies for the purposes specified in a chapter

  9  of the laws of 2000.

 10    § 4. In accordance with section 4 of the state finance law, the  comp-

 11  troller  is  hereby authorized and directed to transfer, upon request of

 12  the director of the budget, up to $1,500,000 from the federal  operating

 13  grants  fund  (290)  to  the  miscellaneous  special revenue fund (339),

 14  statewide energy improvement account, on or before March 31, 2001.

 15    § 5. This act shall take effect April 1, 2000.

 16                                   PART K

 17    Section 1. Subdivision 4 of section 94 of the transportation  law,  as

 18  added by chapter 15 of the laws of 1983, is amended to read as follows:

 19    4.  All fees charged and collected by the commissioner hereunder shall

 20  be Õpaid into the state treasury to the  credit  of  the  general  fundå

 21  deposited  to  the  miscellaneous  special revenue fund - transportation

 22  regulation account for the purposes established in this section.

 23    § 2. This act shall take effect April 1, 2000.

 24                                   PART L

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  1    Section 1.   Paragraph (b) of subdivision 1  of  section  385  of  the

  2  public  authorities law, as added by chapter 56 of the laws of 1993, and

  3  subparagraph (iii) as amended by chapter 637 of the  laws  of  1996,  is

  4  amended to read as follows:

  5    (b)  The  authority  is  hereby  authorized,  as  additional corporate

  6  purposes thereof solely upon the request of the director of the  budget:

  7  (i)  to  issue special emergency highway and bridge trust fund bonds and

  8  notes for a term not to exceed thirty years  and  to  incur  obligations

  9  secured by the moneys appropriated from the dedicated highway and bridge

 10  trust  fund  established  in  section eighty-nine-b of the state finance

 11  law; (ii) to make available the proceeds in accordance with instructions

 12  provided by the director of the budget from the  sale  of  such  special

 13  emergency  highway  and  bridge  trust  fund bonds, notes or other obli-

 14  gations, net of all costs to the authority in connection therewith,  for

 15  the  purposes  of  financing all or a portion of the costs of activities

 16  for which moneys in the dedicated highway and bridge trust  fund  estab-

 17  lished  in section eighty-nine-b of the state finance law are authorized

 18  to be utilized or for the financing of disbursements made by  the  state

 19  for  the  activities authorized pursuant to section eighty-nine-b of the

 20  state finance law; and (iii) to enter into agreements with  the  commis-

 21  sioner  of  transportation  pursuant to section ten-e of the highway law

 22  with respect to financing for  any  activities  authorized  pursuant  to

 23  section  eighty-nine-b  of the state finance law, or agreements with the

 24  commissioner of transportation pursuant to sections ten-f and  ten-g  of

 25  the highway law in connection with activities on state highways pursuant

 26  to  these sections, and (iv) to enter into service contracts, contracts,

 27  agreements, deeds and leases with the director  of  the  budget  or  the

 28  commissioner  of  transportation  and  project  sponsors  and  others to

                                        181                        12334-02-0

  1  provide for the financing by  the  authority  of  activities  authorized

  2  pursuant  to section eighty-nine-b of the state finance law, and each of

  3  the director of the budget and the commissioner  of  transportation  are

  4  hereby  authorized  to  enter  into service contracts, contracts, agree-

  5  ments, deeds and leases with the authority, project sponsors  or  others

  6  to  provide for such financing.  The authority shall not issue any bonds

  7  or notes in an amount in excess of Õ$4.75å $10.25 billion, plus a  prin-

  8  cipal  amount  of bonds or notes: (A) to fund capital reserve funds; (B)

  9  to provide capitalized interest; and, (C) to fund other costs  of  issu-

 10  ance.  In  computing for the purposes of this subdivision, the aggregate

 11  amount of indebtedness evidenced by bonds and  notes  of  the  authority

 12  issued  pursuant to this section, as amended by a chapter of the laws of

 13  nineteen hundred ninety-six, there shall be excluded the amount of bonds

 14  or notes issued that would constitute interest under the  United  States

 15  Internal  Revenue  Code  of  1986, as amended, and the amount of indebt-

 16  edness issued to refund or otherwise repay bonds or notes.

 17    § 2. Paragraph (b) of section 11 of chapter 329 of the laws  of  1991,

 18  amending the state finance law and other laws relating to the establish-

 19  ment of the dedicated highway and bridge trust fund, as amended by chap-

 20  ter 432 of the laws of 1997, is amended to read as follows:

 21    (b) Any service contract or contracts for projects authorized pursuant

 22  to  sections  10-c,  10-f,  10-g and 80-b of the highway law and section

 23  14-k of the transportation law, and entered into pursuant to subdivision

 24  (a) of this section, shall provide  for  state  commitments  to  provide

 25  annually  to  the  thruway  authority a sum or sums, upon such terms and

 26  conditions as shall be deemed appropriate by the director of the budget,

 27  to fund, or fund the debt service requirements of any bonds or any obli-

 28  gations of the thruway authority issued to fund such projects  having  a

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  1  cost  not  in  excess  of  Õ$2,499.55 million cumulatively by the end of

  2  fiscal year 1999-00å $3,787.55 million cumulatively by the end of fiscal

  3  year 2004-05.

  4    §  3.  The sum of two hundred fifty-seven million six hundred thousand

  5  dollars ($257,600,000), or so much thereof as shall be necessary, and in

  6  addition to amounts previously  appropriated  by  law,  is  hereby  made

  7  available, in accordance with subdivision 1 of section 380 of the public

  8  authorities  law  as  amended,  according  to  the  following  schedule.

  9  Payments pursuant to subdivision (a)  of  this  section  shall  be  made

 10  available  as moneys become available for such payments. Payments pursu-

 11  ant to subdivision (b) of this section shall be made  on  the  fifteenth

 12  day  of  June,  September,  December  and March or as soon thereafter as

 13  moneys become available for such payments. No moneys of the state in the

 14  state treasury or any of its  funds  shall  be  available  for  payments

 15  pursuant to this section:

 16                                  SCHEDULE

 17    (a)  Thirty-nine  million seven hundred thousand dollars ($39,700,000)

 18  to municipalities for repayment of eligible costs of federal aid munici-

 19  pal street and highway projects pursuant to section 15 of chapter 329 of

 20  the laws of 1991, as added by section 9 of chapter 330 of  the  laws  of

 21  1991,  as amended.   The department of transportation shall provide such

 22  information to the municipalities as may be necessary  to  maintain  the

 23  federal  tax  exempt  status  of  any bonds, notes, or other obligations

 24  issued by such municipalities to provide for the  non-federal  share  of

 25  the  cost  of  projects  pursuant  to chapter 330 of the laws of 1991 or

 26  section 80-b of the highway law.

 27    The program authorized pursuant to section 15 of chapter  329  of  the

 28  laws  of 1991, as added by section 9 of chapter 330 of the laws of 1991,

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  1  as amended, shall additionally make payments for reimbursement according

  2  to the following schedule:

  3                 State Fiscal Year             Amount

  4                 2001-02                       $39,700,000

  5                 2002-03                       $39,700,000

  6                 2003-04                       $39,700,000

  7                 2004-05                       $39,700,000

  8    (b)  Two  hundred  seventeen  million  nine  hundred  thousand dollars

  9  ($217,900,000) to counties, cities, towns and villages for reimbursement

 10  of eligible costs of local  highway  and  bridge  projects  pursuant  to

 11  sections  16  and  16-a  of chapter 329 of the laws of 1991, as added by

 12  section 9 of chapter 330 of the  laws  of  1991,  as  amended.  For  the

 13  purposes of computing allocations to municipalities, the amount distrib-

 14  uted  pursuant to section 16 of chapter 329 of the laws of 1991 shall be

 15  deemed to be $114,188,000.  The amount distributed pursuant  to  section

 16  16-a  of  chapter  329  of  the  laws  of  1991  shall  be  deemed to be

 17  $103,712,000. Notwithstanding the provisions of any general  or  special

 18  law,  the  amounts  deemed  distributed in accordance with section 16 of

 19  chapter 329 of the laws of 1991 shall be adjusted so that  such  amounts

 20  will  not  be less than 78.750 percent of the "funding level" as defined

 21  in subdivision 5 of section 10-c of the highway law for each such  muni-

 22  cipality.  In  order  to achieve the objectives of section 16 of chapter

 23  329 of the laws of 1991, to the extent necessary, the amounts in  excess

 24  of  78.750 percent of the funding level to be deemed distributed to each

 25  municipality under this paragraph shall be reduced in equal proportion.

 26    The program authorized pursuant to sections 16 and 16-a of chapter 329

 27  of the laws of 1991, as added by section 9 of chapter 330 of the laws of

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  1  1991, as amended, shall additionally  make  payments  for  reimbursement

  2  according to the following schedule:

  3                 State Fiscal Year             Amount

  4                 2001-02                       $217,900,000

  5                 2002-03                       $217,900,000

  6                 2003-04                       $217,900,000

  7                 2004-05                       $217,900,000

  8    § 4. This act shall take effect April 1, 2000.

  9    § 2. Severability clause. If any clause, sentence, paragraph, subdivi-

 10  sion,  section  or  part  contained  in  any  part  of this act shall be

 11  adjudged by any court of competent  jurisdiction  to  be  invalid,  such

 12  judgment  shall not affect, impair, or invalidate the remainder thereof,

 13  but shall be confined in its operation to the  clause,  sentence,  para-

 14  graph,  subdivision,  section  or  part  contained  in  any part thereof

 15  directly involved in the controversy in which such judgment  shall  have

 16  been rendered. It is hereby declared to be the intent of the legislature

 17  that  this  act  would have been enacted even if such invalid provisions

 18  had not been included herein.

 19    § 3. This act shall take effect immediately  provided,  however,  that

 20  the applicable effective date for Parts A through L of this act shall be

 21  as specifically set forth in the last section of such Part.