Legislative Bill Drafting Commission
12334-02-0
S. --------
SENATE
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IN SENATE--Introduced by Sen
--read twice and ordered printed,
and when printed to be committed
to the Committee on
-------- A.
ASSEMBLY
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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
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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;
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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;
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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.
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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