A1006-2011 Actions

• Jun 5, 2012: held for consideration in environmental conservation
• Jan 4, 2012: referred to environmental conservation
• Jan 5, 2011: referred to environmental conservation

A1006-2011 Text

 S T A T E   O F   N E W   Y O R K
 
 
                                         1006
 2011-2012 Regular Sessions
 I N  ASSEMBLY
 (PREFILED)
 January 5, 2011
 
 Introduced  by  M. of A. SAYWARD, DUPREY, CASTELLI -- Multi-Sponsored by
 -- M. of A. AMEDORE, BARCLAY, CALHOUN, CROUCH, FINCH,  GIGLIO,  HAYES,
 KOLB,  McDONOUGH,  MOLINARO,  OAKS,  RAIA,  SALADINO, TEDISCO, THIELE,
 TOBACCO -- read once and referred to the  Committee  on  Environmental
 Conservation
 AN  ACT  to  amend  the  environmental  conservation law and the general
 municipal law, in relation to brownfields and historic fills and mixed
 historic fill programs
 THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM
 BLY, DO ENACT AS FOLLOWS:

 

Section  1.  Paragraph  (a) of subdivision 1 of section 27-1405 of the
 environmental conservation law, as amended by section 2  of  part  A  of
 chapter 577 of the laws of 2004, is amended to read as follows:

 (a)  "Participant"  shall  mean  an  applicant who either: (i) was the
 owner of the site at the time of the disposal or  discharge  of  contam
 inants,  UNLESS  SUCH  PERSON  ACTING  IN  A  LANDLORD CAPACITY AND SUCH
 PERSON'S TENANTS  CAUSED  THE  DISPOSAL  OR  DISCHARGE  OF  CONTAMINANTS
 PROVIDED  SUCH  LANDLORD  CAN  DEMONSTRATE  THROUGH LEASE PROVISIONS THE
 TENANTS WERE RESPONSIBLE FOR DISPOSAL OF THEIR OWN HAZARDOUS  WASTE  AND
 ASSOCIATED  CONTAMINATION, IN WHICH CASE A LANDLORD IS A VOLUNTEER.  FOR
 THE PURPOSES OF THIS PARAGRAPH, THE LANDLORD IS ONLY ACTING IN  A  LAND
 LORD  CAPACITY  IF  SUCH  LANDLORD  HAS NO PRESENT OWNERSHIP INTEREST OR
 WITHIN ONE YEAR PRIOR OWNERSHIP INTEREST IN A TENANT  CONNECTED  TO  THE
 SITE  AT  THE  TIME OF THE DISPOSAL OR DISCHARGE; or (ii) is otherwise a
 person responsible according to applicable principles  of  statutory  or
 common  law liability, unless such person's liability arises solely as a
 result of such person's ownership or operation of  or  involvement  with
 the site subsequent to the disposal or discharge of contaminants.
 

S 2. The first undesignated paragraph and paragraph (a) of subdivision
 2  of  section 27-1405 of the environmental conservation law, as amended
 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
 [ ] is old law to be omitted.
 LBD01358-01-1
 
       A. 1006                             2
 by section 2 of part A of chapter 577 of the laws of 2004,  are  amended
 and a new paragraph (f) is added to read as follows:

 "Brownfield site" or "site" shall mean any real property, the redevel
 opment or reuse of which may be complicated by the presence or potential
 presence of a contaminant, INCLUDING, BUT NOT LIMITED TO, ANY REAL PROP
 ERTY,  THE  REDEVELOPMENT  OR  REUSE  OF WHICH MAY BE COMPLICATED BY THE
 PRESENCE OF CONTAMINATED HISTORIC FILL. Such term shall not include real
 property:

 (a) listed in the registry of inactive hazardous waste disposal  sites
 under section 27-1305 of this article at the time of application to this
 program  and  given a classification as described in subparagraph one or
 two of paragraph b of subdivision two of section 27-1305 of  this  arti
 cle; [provided, however except until July first, two thousand five, real
 property  listed  in  the  registry of inactive hazardous waste disposal
 sites under subparagraph two  of  paragraph  b  of  subdivision  two  of
 section  27-1305  of  this  article  prior to the effective date of this
 article, where such real property is owned by a volunteer shall  not  be
 deemed ineligible to participate and further provided that the status of
 any  such  site  as listed in the registry shall not be altered prior to
 the issuance of a certificate of completion pursuant to section  27-1419
 of this title;]
 (F)  PROVIDED  HOWEVER, FOR ALL FIVE CATEGORIES OF INELIGIBLE SITES IN
 PARAGRAPHS (A) THROUGH (E) OF THIS SUBDIVISION, A VOLUNTEER SHALL NOT BE
 DEEMED INELIGIBLE TO PARTICIPATE IN REGARDS TO ANY SUCH REAL PROPERTY IF
 SUCH VOLUNTEER INTENDS TO ACQUIRE SUCH REAL PROPERTY AND ASSUME  RESPON
 SIBILITY,  NOT FOR PAST COSTS INCURRED PRIOR TO APPLICATION, BUT FOR ALL
 FUTURE COSTS TO COMPLETE THE REMEDIATION OF THE SITE SUBJECT TO A  REUSE
 PLAN  AS  NEGOTIATED  WITH  THE DEPARTMENT, AND ENTERS INTO A BROWNFIELD
 CLEANUP AGREEMENT IN ACCORDANCE WITH SECTION 27-1409 OF THIS  TITLE.  IN
 THE  CASE  OF  SITES SUBJECT TO FEDERAL JURISDICTION, THE VOLUNTEER MUST
 SEEK APPROVAL FROM THE APPROPRIATE FEDERAL AGENCIES TO ENTER THE  BROWN
 FIELD  CLEANUP  PROGRAM  PURSUANT  TO  THIS  TITLE. THE ONGOING STATE OR
 FEDERAL ENVIRONMENTAL ENFORCEMENT ACTIONS  AND/OR  ORDERS  WILL  NOT  BE
 SUPERSEDED  BY  THE  VOLUNTEER'S  BROWNFIELD CLEANUP AGREEMENT, BUT WILL
 REMAIN IN FULL FORCE  AND  EFFECT  UNTIL  SUCH  TIME  AS  THE  VOLUNTEER
 RECEIVES A CERTIFICATE OF COMPLETION PURSUANT TO SECTION 27-1419 OF THIS
 TITLE.  IN  THE  EVENT THE VOLUNTEER DOES NOT RECEIVE THE CERTIFICATE OF
 COMPLETION OR SUCH CERTIFICATE OF COMPLETION IS REVOKED FOR ANY  REASON,
 THE  STATE OR FEDERAL ENFORCEMENT ACTION WILL RESUME AFTER TIMELY NOTICE
 TO ALL PARTIES.
 

S 3.

Section 27-1405 of the environmental conservation law is  amended
 by adding three new subdivisions 17-a, 17-b and 17-c to read as follows:

 17-A.  "CONTAMINATED HISTORIC FILL" MEANS NON-INDIGENOUS OR NON-NATIVE
 MATERIAL, HISTORICALLY DEPOSITED OR DISPOSED IN THE GENERAL AREA OF,  OR
 ON,  A  SITE  INTENDED  TO  CREATE USEABLE LAND BY FILLING WATER BODIES,
 WETLANDS OR TOPOGRAPHIC DEPRESSIONS, WHICH IS IN NO WAY  CONNECTED  WITH
 THE  SUBSEQUENT OPERATIONS AT THE LOCATION OF THE EMPLACEMENT, AND WHICH
 WAS CONTAMINATED PRIOR TO EMPLACEMENT, AND CONTAINS  CONTAMINANTS  ABOVE
 THE  UNRESTRICTED  SOIL  CLEANUP  OBJECTIVES PURSUANT TO 6 NYCRR SECTION
 375-6.8(A). "CONTAMINATED HISTORIC FILL" GENERALLY INCLUDES  INCINERATOR
 RESIDUE,  COAL,  COAL  ASH OR CINDERS, MUNICIPAL SOLID WASTE INCINERATOR
 ASH, FLY ASH AND OTHER FORMS OF  ASH  AND  CINDERS,  INCLUDING  BUT  NOT
 LIMITED TO WOOD ASH, RAILROAD BALLAST, ASBESTOS, CONSTRUCTION DEBRIS AND
 DEMOLITION DEBRIS CONTAMINATED WITH SIGNIFICANT PETROLEUM COMPOUNDS, AND
 MUNICIPAL  SOLID  WASTE  PLACED IN LANDFILLS THAT HAVE NOT BEEN PROPERLY
 CLOSED PURSUANT TO 6 NYCRR PART 360, WHICH IS DETERMINED TO BE  LEACHING
 
       A. 1006                             3
 CONTAMINANTS  INTO  THE  ENVIRONMENT ABOVE THE UNRESTRICTED SOIL CLEANUP
 OBJECTIVE PURSUANT TO 6 NYCRR SECTION 375-6.8(A). "CONTAMINATED HISTORIC
 FILL" DOES NOT INCLUDE ANY MATERIAL WHICH IS CHEMICAL  PRODUCTION  WASTE
 OR  WASTE PRODUCED ON THE SITE FROM PROCESSING OF METAL OR MINERAL ORES,
 RESIDUES, SLAG OR TAILINGS, WHICH OTHERWISE FALL UNDER THE DEFINITION OF
 CONTAMINANTS.
 17-B. "UNCONTAMINATED HISTORIC FILL"  MEANS  CONSTRUCTION  DEBRIS  AND
 DEMOLITION DEBRIS NOT CONTAMINATED WITH SIGNIFICANT PETROLEUM COMPOUNDS,
 DREDGE  SPOILS NOT CONTAMINATED WITH CONTAMINANTS ABOVE THE UNRESTRICTED
 SOIL CLEANUP OBJECTIVES PURSUANT TO  6  NYCRR  SECTION  375-6.8(A),  AND
 MUNICIPAL  SOLID  WASTE  USED  TO  FILL  LAND WHICH IS NOT A LANDFILL AS
 DEFINED UNDER 6 NYCRR PART 360, OR PLACED IN A LANDFILL PROPERLY  CLOSED
 AND BEING MAINTAINED PURSUANT TO 6 NYCRR PART 360.
 17-C.  "MIXED  HISTORIC  FILL" SHALL MEAN UNCONTAMINATED HISTORIC FILL
 THAT IS MIXED WITH CONTAMINATED  HISTORIC  FILL  AND  SUCH  CONTAMINATED
 HISTORIC  FILL CANNOT BE SEPARATED OUT FROM THE TOTAL HISTORIC FILL; THE
 ORIGINAL HISTORIC FILL SHALL BE DEEMED CONTAMINATED HISTORIC FILL.
 

S 4. Subdivision 6 of section 27-1407 of the  environmental  conserva
 tion  law,  as  added by section 1 of part A of chapter 1 of the laws of
 2003, is amended to read as follows:

 6. The department shall use all best efforts to  expeditiously  notify
 the  applicant  within forty-five days after receiving their request for
 participation, OR WITHIN FIFTEEN DAYS OF THE CLOSE OF THE INITIAL PUBLIC
 COMMENT PERIOD, WHICHEVER IS LATER, that such request is either accepted
 or rejected.  "BEST EFFORTS" MEANS THAT THE DEPARTMENT  PROJECT  COUNSEL
 AND  PROJECT MANAGER ASSIGNED TO THE APPLICATION ARE DILIGENTLY EVALUAT
 ING THE APPLICATION AND HAVE ISSUED A NOTICE  TO  THE  APPLICANT  WITHIN
 THIS  TIME  FRAME.  IN THE EVENT A NOTICE IS NOT ISSUED DURING THIS TIME
 FRAME, THE APPLICATION IS DEEMED APPROVED  NO  LATER  THAN  THIRTY  DAYS
 AFTER THE TERMINATION OF THIS TIME FRAME FOR REVIEW.
 

S 5. Subdivision 1, the second undesignated paragraph of subdivision 4
 and  paragraph  (b)  of subdivision 7 of section 27-1415 of the environ
 mental conservation law, as amended by section 7 of part  A  of  chapter
 577 of the laws of 2004, are amended to read as follows:

 1.  Remedial  programs.  All  remedial programs shall be protective of
 public health and the environment including but not limited to groundwa
 ter according to its classification pursuant to section 17-0301 of  this
 chapter;  drinking  water, surface water and air (including indoor air);
 sensitive populations, including  children;  and  ecological  resources,
 including  fish  and wildlife. In all cases, the target risk of residual
 contamination at a site shall not exceed an excess cancer risk of one in
 one million for carcinogenic end points and a hazard index  of  one  for
 non-cancer  end  points.   WITH RESPECT TO INDOOR AIR, THE DEPARTMENT OF
 HEALTH SHALL ASSESS WHICH CONTAMINANTS ARE MOST HARMFUL TO PUBLIC HEALTH
 COMMONLY PRESENT AT BROWNFIELD SITES AND  PRIORITIZE  SUCH  CONTAMINANTS
 BASED ON TOXICITY AND CONCENTRATION FOR PURPOSES OF THIS PROGRAM.
 Track  1: The remedial program shall achieve a cleanup level that will
 allow the site to be used for any purpose without restriction and  with
 out reliance on the long-term employment of institutional or engineering
 controls,  and shall achieve contaminant-specific remedial action objec
 tives for soil which conform with those contained in the  generic  table
 of  contaminant-specific remedial action objectives for unrestricted use
 developed pursuant to subdivision six of this section.  Provided, howev
 er, that APPLICANTS WHO MUST INSTALL  A  VAPOR  MITIGATION  SYSTEM  EVEN
 AFTER  ACHIEVING  TRACK  1  SOIL CLEANUP OBJECTIVES, OR volunteers whose
 proposed remedial program for the remediation of groundwater may require
 
       A. 1006                             4
 the long-term employment of institutional or engineering controls  after
 the bulk reduction of groundwater contamination to asymptotic levels has
 been  achieved  but  whose  program  would  otherwise  conform  with the
 requirements  necessary  to qualify for Track 1, shall qualify for Track
 1.
 (b) The owner of a brownfield site at which institutional or engineer
 ing controls, OR VAPOR MITIGATION SYSTEMS, are employed pursuant to this
 title shall, unless otherwise provided in  writing  by  the  department,
 annually  submit  to the department a written statement by an individual
 licensed or otherwise authorized in accordance with article one  hundred
 forty-five  of the education law to practice the profession of engineer
 ing, or by such other expert  as  the  department  may  find  acceptable
 certifying  under  penalty  of  perjury  that the institutional controls
 and/or engineering controls, OR VAPOR MITIGATION  SYSTEMS,  employed  at
 such site are unchanged from the previous certification and that nothing
 has  occurred  that  would impair the ability of such control to protect
 the public health and environment, or constitute a violation or  failure
 to  comply with any operation and maintenance plan for such controls, OR
 VAPOR MITIGATION SYSTEMS, and giving access to the  department  to  such
 real property to evaluate continued maintenance of such controls.
 

S  6. Subdivision 3 and the first undesignated paragraph and paragraph
 (d) of subdivision 5 of section 27-1419 of the  environmental  conserva
 tion  law,  subdivision  3 as amended by chapter 390 of the laws of 2008
 and the first undesignated paragraph and paragraph (d) of subdivision  5
 as  amended  by  section 9 of part A of chapter 577 of the laws of 2004,
 are amended to read as follows:

 3. Upon receipt of the final engineering report, the department  shall
 review  such  report  and  the data submitted pursuant to the brownfield
 site cleanup agreement as well as any other relevant information regard
 ing the brownfield site WITHIN THIRTY DAYS OF RECEIPT. Upon satisfaction
 of the commissioner that the remediation requirements set forth in  this
 title  have  been or will be achieved in accordance with the timeframes,
 if any, established in the remedial work plan,  the  commissioner  shall
 issue  a  written  certificate  of  completion,  such  certificate shall
 include such information as determined by the department of taxation and
 finance, including but not limited to  the  brownfield  site  boundaries
 included  in  the  final  engineering report, the date of the brownfield
 site agreement pursuant to section 27-1409 of this title, and the appli
 cable percentages available for that site for purposes of section  twen
 ty-one of the tax law, with such percentages to be determined as follows
 with  respect to such qualified site for which the department has issued
 a notice to the taxpayer after June  twenty-third,  two  thousand  eight
 that  its  request for participation has been accepted under subdivision
 six of section 27-1407 of this title:

 For the purposes of calculating the site preparation credit  component
 pursuant  to  paragraph  two of subdivision (a) of section twenty-one of
 the tax law, and the on-site groundwater  remediation  credit  component
 pursuant  to  paragraph four of subdivision (a) of section twenty-one of
 the tax law, the applicable percentage shall be based on  the  level  of
 cleanup achieved pursuant to subdivision four of section 27-1415 of this
 title  and  the  level  of cleanup of soils to contaminant-specific soil
 cleanup objectives promulgated pursuant to subdivision  six  of  section
 27-1415 of this title, up to a maximum of fifty percent, as follows:

 (a)  soil  cleanup for unrestricted use, the protection of groundwater
 or the protection of ecological  resources,  the  applicable  percentage
 shall be fifty percent;
 
       A. 1006                             5
 (b)  soil cleanup for residential use, the applicable percentage shall
 be forty percent,  except  for  Track  4  which  shall  be  twenty-eight
 percent;
 (c)  soil  cleanup for commercial use, the applicable percentage shall
 be thirty-three percent, except for Track 4 which shall  be  twenty-five
 percent;
 (d)  soil  cleanup for industrial use, the applicable percentage shall
 be twenty-seven percent, except for Track 4 which  shall  be  twenty-two
 percent.
 IN THE EVENT THE DEPARTMENT OR THE DEPARTMENT OF HEALTH CONCLUDES THAT
 IT  IS  NECESSARY  FOR THE APPLICANT TO PERFORM ADDITIONAL REMEDIAL WORK
 NOT INCLUDED IN THE APPROVED REMEDIAL WORK PLAN, BUT WHICH  THE  DEPART
 MENT HAS CONCLUDED IS NECESSARY TO SATISFY THE TECHNICAL REQUIREMENTS OF
 THE  PROGRAM  PURSUANT TO SECTION 27-1415 OF THIS TITLE, THE CERTIFICATE
 OF COMPLETION WILL STILL BE ISSUED WITHIN THIRTY DAYS OF RECEIPT OF  THE
 FINAL ENGINEERING REPORT FOR THE WORK PERFORMED UNDER THE APPROVED REME
 DIAL  ACTION WORK PLAN AND A SUPPLEMENTAL REMEDIAL ACTION WORK PLAN MUST
 BE SUBMITTED INCLUDING A SCHEDULE FOR  PERFORMANCE  FOR  ANY  ADDITIONAL
 ACTIONS  THE  DEPARTMENT  OR THE DEPARTMENT OF HEALTH DEEM NECESSARY. IN
 THE EVENT THE SUPPLEMENTAL WORK REQUIRED IN  THE  REMEDIAL  ACTION  WORK
 PLAN  IS  NOT  COMPLETED  PURSUANT  TO  ANY  SUPPLEMENTAL WORK PLAN, THE
 DEPARTMENT MAY REOPEN THE CERTIFICATE  OF  COMPLETION  PURSUANT  TO  THE
 REOPENER  IN  SUBPARAGRAPH  (I)  OF  PARAGRAPH (A) OF SUBDIVISION TWO OF
 SECTION 27-1421 OF THIS TITLE AFTER ALL ADMINISTRATIVE JUDICIAL  REVIEWS
 HAVE BEEN EXHAUSTED.
 A  certificate  of  completion  issued pursuant to this section may be
 transferred to the applicant's successors or assigns  upon  transfer  or
 sale  of  the  brownfield site, AT WHICH TIME THE SUCCESSORS AND ASSIGNS
 ASSUME ALL REMAINING RESPONSIBILITY FOR THE BROWNFIELD SITE.  Further, a
 certificate of completion may be modified or revoked by the commissioner
 upon a finding that:

 (d) There is good cause for such modification or revocation  BASED  ON
 THE  APPLICANT  OR  THEIR  SUCCESSOR AND ASSIGNS FAILURE TO MAINTAIN THE
 CONTROLS IN THE ENVIRONMENTAL EASEMENT OR ANY FUTURE CONTAMINATION ON OR
 EMANATING FROM THE SITE.
 

S 7. The environmental conservation law is amended  by  adding  a  new
 section 27-1437 to read as follows:

 

S 27-1437. UNCONTAMINATED   HISTORIC   FILL   AND  MIXED  HISTORIC  FILL
 PROGRAMS.
 THE DEPARTMENT OR ANY DELEGATED MUNICIPALITY IS AUTHORIZED TO CREATE A
 BENEFICIAL USE DETERMINATION PROGRAM FOR  THE  REUSE  AND  RECYCLING  OF
 UNCONTAMINATED  HISTORIC FILL AND THE MANAGEMENT OF MIXED HISTORIC FILL.
 IN THE EVENT A MUNICIPALITY REQUESTS DELEGATION  TO  ADMINISTER  SUCH  A
 BENEFICIAL  USE  DETERMINATION  PROGRAM FOR UNCONTAMINATED HISTORIC FILL
 AND MIXED HISTORIC FILL, THE MUNICIPALITY MUST PROPOSE  A  PROGRAM  THAT
 WILL BE SUBJECT TO APPROVAL BY THE DEPARTMENT. AT A MINIMUM, THE PROGRAM
 MUST  INCLUDE  SAMPLING  REQUIREMENTS DESIGNED TO FULLY CHARACTERIZE THE
 NATURE OF THE MATERIAL, A PROCEDURE TO APPLY FOR  AND  RECEIVE  APPROVAL
 FOR  EXCAVATION AND TRANSPORTATION OF SUCH MATERIAL FOR REUSE AS FILL ON
 ANOTHER SITE PROVIDED SUCH  MATERIAL  IS  REUSED  IN  A  MANNER  AND  IN
 LOCATIONS  APPROPRIATE  FOR SUCH REUSE. IN ADDITION THE DEPARTMENT SHALL
 ISSUE A NO FURTHER ACTION LETTER TO THE PARTY  ATTEMPTING  TO  USE  SUCH
 MATERIAL  AND  THE  PROPOSED  END USE DEPOSITION SITE OWNER PROVIDED THE
 MATERIAL HAS BEEN PROPERLY REUSED.  THE PROCESS FOR DETERMINING  ACCEPT
 ANCE  OF  THIS  MATERIAL AT THE END USE SITE GIVEN THE INTENDED USE WILL
 CONSIDER A COMPARISON OF ANALYTICAL DATA FROM THE SIDEWALLS OF  THE  END
 
       A. 1006                             6
 USE  SITE  OF FINAL DEPOSITION AND THE SOURCE SITE UNCONTAMINATED AND/OR
 MIXED HISTORIC FILL MATERIAL. IF THE COMPARISON INDICATES THAT:

 1.  THE  GROUP AND CATEGORY OF COMPOUNDS IDENTIFIED IN ANALYTICAL DATA
 FROM BOTH SITES ARE SIMILAR ON BOTH SITES; AND
 2. CONCENTRATIONS ARE SIMILAR IN THE SOURCE MATERIAL TO THE DEPOSITION
 SITE AND WILL NOT CREATE A NEGATIVE IMPACT TO THE FINAL  DISPOSAL  SITE,
 THEN, AND ONLY THEN, THE FILL CAN BE ACCEPTED FOR REUSE.  THE NO FURTHER
 ACTION  LETTER  BY  THE  DEPARTMENT  SHALL CONFIRM THE MATERIAL HAS BEEN
 PROPERLY REUSED AND NO FURTHER ACTION BY THE DEPARTMENT IS REQUIRED.
 

S 8. The environmental conservation law is amended  by  adding  a  new
 section 27-1439 to read as follows:

 

S 27-1439. EXPEDITED  REMEDIATION  PROGRAM  FOR  MINIMALLY  CONTAMINATED
 SITES.
 TO THE EXTENT THAT A PARTY DOES  NOT  DESIRE  TO  PARTICIPATE  IN  THE
 BROWNFIELD  CLEANUP  PROGRAM,  BUT  DOES DESIRE THE LIABILITY LIMITATION
 GRANTED UNDER SECTION 27-1421 OF THIS TITLE, SUCH  PARTY  MAY  ELECT  TO
 PARTICIPATE  IN  AN EXPEDITED REMEDIATION PROGRAM RESERVED FOR MINIMALLY
 CONTAMINATED SITES SUBJECT TO A STIPULATION AGREEMENT AND REMEDIAL  WORK
 PLAN  SUBSEQUENT TO COMPLETION OF A SITE INVESTIGATION REPORT. THE SITES
 ELIGIBLE TO THIS PROGRAM ARE DEFINED AS  SITES  WHERE:  1.  THE  SUSPECT
 CONTAMINATION  IS  NOT KNOWN BUT THE HISTORIC SOURCE OF CONTAMINATION IS
 NOT LIKELY TO HAVE GENERATED SIGNIFICANT LEVELS OF CONTAMINATION, OR  2.
 THE CONTAMINATION LEVELS ARE KNOWN BUT ARE MINIMAL. CONTAMINATION LEVELS
 ARE  CONSIDERED  MINIMAL  IF  THE ANTICIPATED COST OF REMEDIATION OF THE
 CONTAMINANT OR CONTAMINATED HISTORIC FILL IS MERELY  CONSIDERED  BY  THE
 PARTY  TO  BE  A  COST  OF CONSTRUCTION RATHER THAN A REMEDIAL COST. THE
 DEPARTMENT SHALL DEVELOP REGULATIONS TO ESTABLISH THE EXPEDITED PROGRAM,
 WHICH WILL INCLUDE PROCEDURES THAT ARE LESS FORMAL THAN  THE  BROWNFIELD
 CLEANUP PROGRAM BUT PROTECTIVE OF THE PUBLIC HEALTH AND THE ENVIRONMENT.
 THE INTENT OF THIS PROGRAM IS TO ENABLE PROJECTS TO PROCEED ON MINIMALLY
 CONTAMINATED SITES IN AN EXPEDITED FASHION WITH ALL NECESSARY DEPARTMENT
 OVERSIGHT  IN  EXCHANGE  FOR A STATE LIABILITY LIMITATION GRANTED AT THE
 COMPLETION OF THE REQUIRED REMEDIATION.
 

S 9. Subdivision 2 of section 71-3607 of the  environmental  conserva
 tion  law,  as  added by section 2 of part A of chapter 1 of the laws of
 2003, is amended to read as follows:

 2. Whenever an affected local government receives an application for a
 building permit or any other application affecting [land use or develop-
 ment of land] ANY OF THE INSTITUTIONAL AND/OR ENVIRONMENTAL CONTROLS  IN
 THE EASEMENT INCLUDING CHANGE OF USE, CHANGE OR IMPACT ON ANY SUBSURFACE
 CONDITIONS OR CHANGE OR IMPACT ON ANY INDOOR AIR RELATED SYSTEMS INCLUD
 ING  VAPOR  MITIGATION  SYSTEMS  OR HEATING AND COOLING SYSTEMS, that is
 subject to an environmental easement and that may relate  to  or  impact
 such easement, the affected local government shall notify the department
 and refer such application to the department. The department shall eval
 uate  whether the application is consistent with the environmental ease
 ment and shall notify the affected local government of its determination
 in a timely fashion, considering the time frame for  the  local  govern
 ment's  review  of  the application. The affected local government shall
 not approve the application until it receives approval from the  depart
 ment.    THE  DEPARTMENT AND THE LOCAL GOVERNMENT SHALL DEVELOP AN EXPE
 DITED PROCESS FOR IDENTIFYING THOSE PERMITS THAT  COULD  IN  ANY  MANNER
 AFFECT  AN  ENVIRONMENTAL  EASEMENT  FROM  THOSE  PERMITS THAT COULD NOT
 POSSIBLY HAVE ANY IMPACT. THE DEPARTMENT WILL NOT NEED  TO  APPROVE  ANY
 PERMITS  THAT  ARE  UNRELATED TO ENVIRONMENTAL EASEMENT INSTITUTIONAL OR
 ENGINEERING CONTROLS.
 
       A. 1006                             7
 

S 10. Paragraph a of subdivision 3 and subdivisions 4 and 5 of section
 970-r of the general municipal law, paragraph a  of  subdivision  3  and
 subdivision 4 as amended by chapter 390 of the laws of 2008 and subdivi
 sion 5 as added by section 1 of part F of chapter 1 of the laws of 2003,
 are amended to read as follows:

 a.  Within  the  limits  of  appropriations therefor, the secretary is
 authorized to provide, on a competitive basis, financial  assistance  to
 municipalities,  to  community based organizations, to community boards,
 or to municipalities and community based organizations acting in cooper
 ation to prepare a nomination for designation of a  brownfield  opportu
 nity  area.    A NOMINATION STUDY MUST INCLUDE SUFFICIENT INFORMATION TO
 DESIGNATE THE BROWNFIELD OPPORTUNITY AREA DISTRICT. THE CONTENTS OF  THE
 NOMINATION  STUDY  SHALL BE DEVELOPED BASED ON AN AREA-WIDE ASTM PHASE I
 SITE INVESTIGATION STUDY DOCUMENTING THE HISTORIC USES IN THE  DISTRICT.
 A  NOMINATION  STUDY  IS NOT EQUIVALENT TO AND MAY NOT SERVE AS A MASTER
 PLAN OR OTHER EQUIVALENT LAND USE STUDY. SUCH POSSIBLE  MASTER  PLAN  OR
 EQUIVALENT LAND USE STUDY MAY BE SEPARATELY DEVELOPED UNDER THIS PROGRAM
 AS AN IMPLEMENTATION STRATEGY THAT MAY BE ATTACHED TO A FINAL BROWNFIELD
 OPPORTUNITY  AREA  PLAN.  NO  SUCH  NOMINATION  STUDY SHALL SUPERSEDE AN
 EXISTING MASTER PLAN  OR  EQUIVALENT  LAND  USE  STUDY.  Such  financial
 assistance  shall  not  exceed ninety percent of the costs of such nomi
 nation for any such area.
 4. Designation of brownfield opportunity area. Upon  completion  of  a
 nomination for designation of a brownfield opportunity area, it shall be
 forwarded by the applicant to the secretary, who shall determine whether
 it  is  consistent with the provisions of this section. If the secretary
 determines that the nomination is consistent with the provisions of this
 section, the brownfield opportunity area shall be designated.   A  NOMI
 NATION STUDY DOES NOT REQUIRE REVIEW UNDER THE STATE ENVIRONMENTAL QUAL
 ITY  REVIEW ACT PURSUANT TO ARTICLE EIGHT OF THE ENVIRONMENTAL CONSERVA
 TION  LAW.  IN  THE  EVENT  THE  MUNICIPALITY  AND/OR  COMMUNITY   BASED
 ORGANIZATION  ELECT  TO DEVELOP IMPLEMENTATION STRATEGIES, INCLUDING BUT
 NOT LIMITED TO A MASTER PLAN OR URBAN RENEWAL  PLAN,  REVIEW  UNDER  THE
 STATE  ENVIRONMENTAL QUALITY REVIEW ACT PURSUANT TO ARTICLE EIGHT OF THE
 ENVIRONMENTAL CONSERVATION LAW IS REQUIRED. If the secretary  determines
 that  the  nomination  is  not  consistent  with  the provisions of this
 section, the secretary shall make  recommendations  in  writing  to  the
 applicant  of  the  manner  and nature in which the nomination should be
 amended.
 5. Priority and preference. The designation of a  brownfield  opportu
 nity  area  pursuant  to this section is intended to serve as a planning
 tool.  It alone shall not impose any new obligations on any property  or
 property  owner. To the extent authorized by law, projects in brownfield
 opportunity areas designated pursuant to this section  shall  receive  a
 priority  and preference when considered for financial assistance pursu
 ant to articles fifty-four and fifty-six of the environmental  conserva
 tion law. To the extent authorized by law, projects in brownfield oppor
 tunity  areas designated pursuant to this section may receive a priority
 and preference when considered for financial assistance pursuant to  any
 other  state, federal or local law.  ANY STATE AGENCY WITH PROGRAMS THAT
 COULD ASSIST DESIGNATED BROWNFIELD OPPORTUNITY AREAS SHALL CONTACT  SUCH
 MUNICIPALITIES  AND/OR  COMMUNITY  BASED  ORGANIZATIONS  SUBSEQUENT TO A
 DESIGNATION AND SHALL OFFER ASSISTANCE TO ACCESS ANY POSSIBLE SUPPORTING
 PROGRAMS OR FUNDING SOURCES.
 

S 11. This act shall take effect immediately; provided that the amend
 ments to paragraph a of subdivision 3 and subdivision 4 of section 970-r
 
       A. 1006                             8
 of the general municipal law made by section ten of this act shall  take
 effect  on  the  same  date and in the same manner as chapter 390 of the
 laws of 2008, takes effect.

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