Relates to brownfield site cleanup; establishes environmental covenants; repeals provisions of law relating to brownfield redevelopment tax credits.
TITLE OF BILL: An act to amend the environmental conservation law, the public service law, the general business law and the tax law, in relation to brownfield site cleanup; and to repeal section 31 of part H of chapter 1 of the laws of 2003 amending the tax law relating to brownfield redevelopment tax credits, relating thereto
PURPOSE OF THE BILL: This bill would further strengthen the State's Brownfield Cleanup Program (BCP), which is already one of the nation's premier environmental cleanup and redevelopment programs. Eligibility standards would be tightened by adding non-discretionary economic conditions and greater predeterminations of probable significant contamination. Many of the State's most contaminated and hard-to-redevelop properties-including Class 2, Class 3, and Resource Conservation and Recovery Act (RCRA) sites-would again be eligible for entrance in the BCP if owned and controlled by true volunteers that pledge to remediate and redevelop these sites to their highest and best market-based use. Program oversight fees would be capped and the State would adopt the environmental covenant standards that have become the national norm for ongoing monitoring and restoration of sites. The tax credits would be refocused on actual cleanups and market-driven developments, with greater targeting toward proposed manufacturing projects. The credit sunsets would be eliminated, making the tax credits congruent to the programmatic aspects of the program, and the county criteria-based Environmental Zones (EZs) would be reinstated with updates for all EZs to reestablish areas according to the new census. Adoption of these changes will provide greater predictability to the Department of Environmental Conservation (DEC) about what properties should get into the BCP, while alleviating the administrative burdens connected therein, and easing the process for applicants to enter and complete the program. This would greatly encourage the equally important overriding public purposes of protecting the public health by restoring contaminated real estate, and by creating quality employment for New Yorkers through redeveloping these sites to the nation's highest standards.
SUMMARY OF PROVISIONS:
Section 1 would amend section 27-1405 of the Environmental Conservation Law (ECL) to provide potential applicants, the DEC, and other public and private institutions with guidance on site eligibility. An eligible brownfield would be characterized as a site that reasonably demonstrates a strong suspicion of a significant level of contamination, which is a determination that would typically, though not exclusively, be determined through the completion of a phase I environmental report. A determination of eligibility would require a prima facie showing that redevelopment of the site would be greatly inhibited by actual or suspected contamination factors at or below the surface level. Evidence of non-discretionary market-based economic distress must also be demonstrated, to determine if a site merits entrance into the BCP and the as-of-light State financial support. An eligible site must be primarily abandoned currently or at any time prior to application, or characterized by any prior and current severe economic or functional underutilization of a site, which is evident where the property is used as a parking, storage, or
hazardous or solid waste facility. If the site's primary use has been and is intended to be a manufacturing or other industrial facility, a credible market study must show that the building and equipment presently at the location must be functionally obsolescent on an internationally comparative basis for the site to be eligible. The section also would allow current active State Superfund and RCRA sites in the program if owned and controlled by hue volunteers who pledge to complete any necessary investigations and remediation. Volunteers would also assume all future costs related to such sites, and they or their successors would have to maintain all institutional and engineer controls as required by DEC.
Section 2 of this bill would amend section 27-1409 of the ECL to limit the fees that DEC can impose on participants in smaller scale projects for administering the BCP. DEC and other concerned State entities can currently impose oversight and administrative fees related to costs connected to the BCP. There are no current limits on the extent of these fees related to the size of a potential project. This bill would cap these fees at no more than five percent of the site preparation costs related to ground, vapor, and groundwater cleanups as defined in section twenty-one of the tax law. In addition, such fees would be payable only upon the receipt of the certificate of completion for the project, or upon voluntary or other termination in the program. This section would also make clear that failure to pay due fees will result in revocation of such certificate and prohibit future participation in the program.
Section 3 would enact a new Title 45 to Article 71 the ECL, which would supersede the existing Title 36 environmental easement -program unique to New York and provide for the use of environmental covenants as adopted by over twenty other states where brownfields are also a significant public concern. These covenants present a uniform method for assuring that title holders and their predecessors and successors maintain responsibility for ongoing maintenance and controls at a site that has gone through the BCP. Adoption of the covenant model will provide assurance and confidence to out-of state lenders and other interested parties on the status and future disposition of sites, based on common experiences with the conditions in other states that have adopted the environmental covenant model legislation.
Section 4 would amend section 27-1318 of the ECL to allow an owner or other responsible party to execute an environmental covenant in lieu of an environmental easement.
Section 5 would amend section 27-1415 of the ECL to require the DEC to record in its database on brownfield sites a copy of any environmental covenant created under Title 45 of Article 71 of the ECL.
Section 6 would amend section 27-1419 of the ECL to require that any site owner of a covered party must certify that an environmental covenant has been duly created and recorded and any affected municipality has been duly notified of the existence of the covenant.
Section 7 would amend section 56-0503 of ECL to add to the requirement under current law that municipalities, to participate in the environmental restoration program, must place and be bound by environmental easements as deemed necessary by the DEC.
Section 8 would amend section 21 of the Tax Law to treat taxpayers filing under Article 22 of the Tax Law (businesses treating income under the Personal Income Tax such as partnerships and Limited. Liability Companies) the same as other business filers.
Section 9 of the bill would further amend section 21 of the Tax Law to make a technical correction to the statute regarding caps. When the caps were placed on development credits in 2008, they guaranteed the taxpayer a positive basis for the calculation of the credit limitation, based on a product of the site preparation credit component and the groundwater remediation credit component, the outcome of which was independent of the taxpayer's choice to take an expense deduction of cleanup costs under section 198 of the Internal Revenue Code. Current law is dependent on this choice as it requires the taxpayer to choose between the federal expense deduction or the state cleanup credits. Each taxpayer's circumstance may vary on which is the most advantageous course to elect. Under the product cap limiting development credits, which is based on a multiple of depreciable cleanup costs, if the taxpayer chooses to expense the costs for a federal deduction, there is no cleanup cost basis to apply towards the development credit cap. With no basis for the product, the amount of development credits under this current scenario is zero. This bill would allow the taxpayer to compute the maximum allowable development credit regardless of the treatment of the expenses for federal purposes. In addition, this section increases the cap for sites redeveloped primarily as a qualified manufacturing site by .333 percent to provide a maximum inducement and State support fox these globally coveted projects.
Section 10 would amend subdivision (b) of section 21 of the Tax Law to reinstate county criteria-based EZs and have all EZs updated to reflect the recently completed 2010 Census.
Section 11 would make conforming EZ changes to section 22 of the Tax Law.
Section 12 would triple the existing Environmental Remediation Insurance credit granted under section 23 of the Tax Law from a maximum of $30,000 per BCP site to $90,000.
Section 13 would make the tax credits under the BCP permanent and would allow taxpayers who have not received a certificate of completion for a qualified site by March 31, 2015, to be eligible for tax credits under the program. This sunset date is especially pernicious since qualified sites take at least three and half years to get through the program, and many applicants asking for a site to be admitted to the BCP would likely be already ineligible for any State support through the program.
Section 14 provides for a severability clause for the sections of the bill.
Section 15 provides for an immediate effective date for the bill and would apply the new statutes only to all qualified sites accepted into the BCP on or after July 1, 2013.
EXISTING LAW: The Brownfield Cleanup Program was enacted in 2003 to encourage and guide the redevelopment of the State's largest and/or most economically inhibiting contaminated properties not on the federal priority list. Title 14 of Article 27 of the ECL was adopted to define project eligibility and give statutory grounding for administration of the program. Three new sections of the tax law were adopted to provide significant incentives through the nation's first fully refundable large-scale business tax credits. These credits provide state support for a portion of cleanups and redevelopment with much greater support for projects in distressed neighborhoods, provide a full or partial State rebate for property taxes paid on redeveloped properties based on the location of the site and the number of jobs created, and give an incentive for the carrying of environmental remediation insurance. In 2008, the redevelopment credits were capped to provide a sense of budgetary predictability.
PRIOR LEGISLATIVE HISTORY: S.5228A of 2011-2012
STATEMENT IN SUPPORT: The New York State Brownfield Cleanup Program has proved to be the nation's best designed and most successful remediation, smart-growth, sustainability, reclamation, and economic development tool. Budget concerns and programmatic anxieties have led to many proposals to amend the program, especially the redevelopment incentives, proposals that would make credits discretionary, and programs that would fundamentally interfere with the marketplace. These proposals threaten the BCP's success in attaining the nation's highest cleanup standards backed by market-driven and as-of-light incentives. These proposals would also lead us back toward the old status quo of permanently abandoned sites, sprawl, urban decay, poor cleanups and redevelopment, and in doing so would defeat the dream for true sustainability and the promise of creating livable communities. A review of all the relevant facts available to date illustrates the overwhelming triumphs of the current tax credit program, rather than its shortcomings. The State needs to concentrate on fixing the administrative and programmatic problems, instead of focusing on the tax credits that have been the true measure of success for the program so far, would further strengthen the BCP.
A short recap demonstrates just how revolutionary Chapter 1 of the Laws of 2003 truly was and continues to be. While the State in the 1980's and 1990's did offer substantial grants to remediate sites-in many cases offering to pay nearly the entire cost of cleanups-New York was universally viewed as having one of the poorest cleanup and redevelopment records in the nation. By 1999, it had become clear to both houses of the State Legislature, the Executive, and the environmental and business communities, that New York's Superfund and other remediation programs were ineffective, underfunded, and poorly designed. New York State, despite likely having more major brownfields than any other state-and certainly more major urban and suburban areas adversely impacted by contaminated sites-also had the most dysfunctional programs. Despite laudatory goals and objectives, millions in capital funds and supporting statutes that sought protective cleanups and redevelopment, and while policies called for higher standards, shovel ready sites, and various ways to reclaim our urban cores and satisfy pressing demands for environmental justice, nearly every site remained unclaimed and toxic, cleanup agreements
that were signed were inadequate, and capital grants and municipal awards were unproductive at best.
The State should have learned by this point that programs that. only reward cleanup efforts, or that attempt to centrally and rationally plan the type, location, and Scope of future redevelopment do not work. Only making sites "shovel ready" has demonstrated time and time again to result in corrupted or incomplete cleanups that have always left sites de-industrialized, poorly reused, and often still hazardous.
The BCP relies on a market-based approach. This mechanism will not unfairly prejudice one geographic sector of the State in preference of another, and tax incentives would be the most generous offered through any program in the State if not the nation. These properties need to employ the "highest and best use" test as determined by private sector specialists and risk takers.
The program's remediation and redevelopment incentives have proven beyond doubt to be the most paradigm shattering. For the first time anywhere, a completely market-driven, fully refundable tax credit system was adopted that would get sites cleaned-up to the highest standards, get projects done at a level of quality and job creation happening nowhere else, and getting sites done that have sat idle for decades.
The BCP has resulted in more private dollars being spent on cleanups and redevelopment than the rest of the nation combined.
The BCP is not designed, and cannot reasonably be altered, to cover the multitude of very small sites throughout the State. The program was meant to cover the State's largest or most problematical properties that justified private redevelopment. However, the State should anticipate at least forty projects a year through the program, four times more than previously obtained. Also, no projects from Long Island, home .o some of the State's worst environmental sites, have come completely through the program. The reforms in this bill would aid the reclamation and redevelopment of this crucial sector of the State.
What is more, the BCP has proved to be a much better mechanism to getting sites cleaned up and redeveloped than the State Superfund and registry programs at a much lower cost to the taxpayers. These sites originally were allowed into the BCP for a very short window. It is time to open these sites in the BCP on a permanent basis.
Since enactment of the BCP, the State so far has spent 065,118,000 on the superfund program-$220,118,000 on actual cleanup and $145 million on administrative costs. (Included within the $365 million is about $85 million that was rolled into old hazardous waste programs and paid for by current indebtedness.) Despite this large commitment of State resources, Superfund and RCRA sites still take decades to reclaim at merely industrial standards, are still bound up.with years of litigation, and remain undeveloped once the agreed upon cleanup is completed. Comparatively, BCP site reclaims at the nation's highest and best cleanup standards are completed within an average of 3.2 years. It is therefore in the State's interest once more to allow
superfund and other regulated sites that are owned and controlled by hue volunteers back into the BCP.
In contrast, on the 92 sites that have gone through BCP and have been awarded Certificates of Completion through tax year 2010, $403 million in private funds have been spent on cleanups. This has cost state taxpayers under $40 million in "pay go" cleanup credits. Nearly $3 billion in private funds have been spent on redevelopment of these sites. State taxpayers have provided nearly $461 million in support for buildings and equipment on these projects that have resulted in thousands of good jobs throughout the State. These redeveloped sites have more than repaid the State's taxpayers investment with increased income, sales, and property taxes and elevated real estate values.
In addition, the BCP has not favored one geographic area of the State over any other. Although New York City and Westchester projects on average have been larger in scope, actually more projects from Upstate have come through the program-hence, an equilibrium.
The overriding problems in the program have come, not from the tax credits, but from issues of eligibility and the administration of the program. The original definition of a brownfield came from the Federal Environmental Protection Agency description that is extremely broad and was intended to aid states and localities in creating a site inventory, not to actually cleanup and redevelop identified sites. This definition had produced an impossible burden on DEC. These definitional problems have resulted in endless litigation, process delays, and a sense that the state cannot keep its commitments.
This bill would provide DEC with a definition that will focus the program on sites that the market has determined are in great distress rather than eliminating the strengths of the program through giving government officials discretionary powers of the location, number, and types of cleanups and redevelopments. Except for globally hyper-competitive manufacturing projects, the program should remain neutral over the type of developments meriting support. The State cannot forget that the BCP is as much an economic development as an environmental program. The BCP should also not be used as an experiment fox unproven sustainability and low-income housing programs.
Furthermore, the bill would give private lenders more security about the programmatic requirements in the BCP and help assure that the State will keep its promises on incentives. Finally, it is absolutely essential that the sunsets in the current program be eliminated, as it is currently past the timeframe for a taxpayer to receive credits if these sunsets remain.
FISCAL IMPLICATIONS: The bill is designed to be revenue neutral. Tighter eligibility standards would be offset by allowing State Superfund and RCRA sites into the program.
Providing Personal Income Tax filers parity would be counterbalanced by removing incentives not driven by market criteria. Capping oversight fees on small projects would be more than made up by increased penalties for non-payment. The program would continue to
expend approximately an estimated $400 million a year on around forty new projects per year throughout the State.
EFFECTIVE DATE: This bill has an immediate effective date. However, the provisions of the bill would only apply to applications that have been accepted into the BCP on or after July 1, 2013.
STATE OF NEW YORK ________________________________________________________________________ 1664 2013-2014 Regular Sessions IN SENATE (PREFILED) January 9, 2013 ___________Introduced by Sens. GRISANTI, MAZIARZ -- read twice and ordered printed, and when printed to be committed to the Committee on Environmental Conservation AN ACT to amend the environmental conservation law, the public service law, the general business law and the tax law, in relation to brown- field site cleanup; and to repeal section 31 of part H of chapter 1 of the laws of 2003 amending the tax law relating to brownfield redevel- opment tax credits, relating thereto THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Subdivision 2 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: 2. (A) "Brownfield site" or "site" shall mean any real property, the redevelopment or reuse of which
[may be]IS complicated by the GROUND SURFACE OR BELOW GROUND SURFACE LEVEL presence or [potential]SUSPECTED presence of a contaminant REGARDLESS OF THE SOURCE OF SUCH CONTAMINANT. A BROWNFIELD SITE IS CHARACTERIZED BY ANY OR ALL OF THE FOLLOWING: (I) A CURRENT AND HISTORICAL LEGACY OF ABANDONMENT FROM PREVIOUS INDUSTRIAL OR COMMERCIAL ACTIVITY. (II) A CURRENT AND HISTORICAL LEGACY OF SEVERE ECONOMIC OR FUNCTIONAL UNDERUTILIZATION INCLUDING USE OF SUCH SITE AS A HAZARDOUS WASTE OR SOLID WASTE FACILITY. (III) IN THE CASE OF A SITE CHARACTERIZED PRIMARILY BY INDUSTRIAL ACTIVITY, FUNCTIONAL OBSOLESCENCE. (B) Such term shall not include real property: [(a)](I) 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 thisEXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD04685-01-3 S. 1664 2
article; 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;
[(b)](II) listed on the national priorities list established under authority of 42 U.S.C. section 9605; [(c)](III) subject to an enforcement action under title seven or nine of this article, [except]OR PERMITTED AS a treatment, storage or disposal facility [subject to a permit]; provided, that nothing herein contained shall be deemed otherwise to exclude from the scope of the term "brownfield site" a hazardous waste treatment, storage or disposal facility having interim status according to regulations promulgated by the commissioner; [(d)](IV) subject to an order for cleanup pursuant to article twelve of the navigation law or pursuant to title ten of article seventeen of this chapter except such property shall not be deemed ineligible if it is subject to a stipulation agreement; or [(e)](V) subject to any other on-going state or federal environmental enforcement action related to the contamination which is at or emanating from the site subject to the present application. (VI) PROVIDED HOWEVER FOR OTHERWISE INELIGIBLE SITES GIVEN A CLASSI- FICATION AS DESCRIBED IN SUBPARAGRAPH TWO OR THREE OF PARAGRAPH B OF SUBDIVISION TWO OF SECTION 27-1305 OF THIS ARTICLE, AND INELIGIBLE SITES DESCRIBED IN SUBPARAGRAPH (III) OF THIS PARAGRAPH, A VOLUNTEER SHALL NOT BE DEEMED INELIGIBLE TO PARTICIPATE IN REGARDS TO ANY SUCH INELIGIBLE SITE IF SUCH VOLUNTEER INTENDS TO ACQUIRE AND REDEVELOP SUCH REAL PROP- ERTY AND ASSUME RESPONSIBILITY, NOT FOR PAST COSTS INCURRED PRIOR TO THE APPLICATION, BUT FOR ALL FUTURE COSTS TO COMPLETE ANY REMAINING INVESTI- GATION AND REMEDIATION UPON ACQUISITION OF SUCH REAL PROPERTY, OR MAIN- TAIN LONG TERM INSTITUTIONAL AND ENGINEERING CONTROLS OF THE SITE, AND IMPLEMENT A REDEVELOPMENT PROJECT ON THE SITE, THE SITE CONFORMS TO THE DEFINITION OF A BROWNFIELD SITE IN PARAGRAPH (A) OF THIS SUBDIVISION, AND ENTERS INTO A BROWNFIELD CLEANUP AGREEMENT IN ACCORDANCE WITH SECTION 27-1409 OF THIS TITLE. ANY ON-GOING STATE 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 VOLUN- TEER RECEIVES A CERTIFICATE OF COMPLETION PURSUANT TO SECTION 27-1419 OF THIS TITLE AND THEREAFTER TO THE EXTENT THE VOLUNTEER OR SUBSEQUENT OWNER OR OPERATOR FAIL TO COMPLY WITH THE TERMS OF AN ENVIRONMENTAL EASEMENT IF ONE HAD BEEN CREATED PURSUANT TO TITLE THIRTY-SIX OF ARTICLE SEVENTY-ONE, OR AN ENVIRONMENTAL COVENANT AS OF THIS CHAPTER PURSUANT TO TITLE FORTY-FIVE OF ARTICLE SEVENTY-ONE OF THIS CHAPTER. IN THE EVENT THE VOLUNTEER DOES NOT RECEIVE THE CERTIFICATE OF COMPLETION OR SUCH CERTIFICATE OF COMPLETION IS REVOKED FOR ANY REASON, ANY AND ALL STATE ENFORCEMENTS ACTION IMMEDIATELY WILL RESUME AFTER TIMELY NOTICE TO ALL PARTIES. S 2. The opening paragraph of subdivision 2 of section 27-1409 of the environmental conservation law is designated paragraph (a) and a new paragraph (b) is added to read as follows: (B) NOTWITHSTANDING ANY PROVISION OF LAW TO THE CONTRARY, ALL APPLI- CANTS ACCEPTING PARTICIPATION IN THE BROWNFIELD CLEANUP PROGRAM SHALLS. 1664 3
PAY ALL REASONABLE STATE COSTS, HOWEVER, SUCH STATE COSTS SHALL NOT EXCEED FIVE PERCENT OF THE TOTAL SITE PREPARATION COSTS, AS DEFINED BY PARAGRAPH TWO OF SUBDIVISION (B) OF SECTION TWENTY-ONE OF THE TAX LAW, PAID OR INCURRED BY THE APPLICANT, AND THE TOTAL STATE COSTS OWED SHALL BE PAYABLE UPON NINETY DAYS OF, (I) THE ISSUANCE OF THE CERTIFICATE OF COMPLETION FOR THE PROJECT, OR, (II) UPON TERMINATION OF A PARTICIPANT'S BROWNFIELD CLEANUP AGREEMENT BY THE DEPARTMENT FOR FAILURE TO SUBSTAN- TIALLY COMPLY WITH SUCH AGREEMENT'S TERMS AND CONDITIONS, OR (III), THE VOLUNTARY WITHDRAWAL OF THE APPLICANT. FAILURE TO REMIT DUE PAYMENTS TO THE STATE SHALL RESULT IN THE REVOCATION OF SUCH CERTIFICATE OF COMPLETION, AND WILL PROHIBIT ANY FUTURE PARTICIPATION OF AN APPLICANT IN THE PROGRAM. PAYMENT OF STATE COSTS SHALL BE MADE TO THE HAZARDOUS WASTE REMEDIAL FUND ESTABLISHED PURSUANT TO SECTION NINETY-SEVEN-B OF THE STATE FINANCE LAW. S 3. Article 71 of the environmental conservation law is amended by adding a new title 45 to read as follows: TITLE 45 ENVIRONMENTAL COVENANTS SECTION 71-4501. SHORT TITLE. 71-4503. DECLARATION OF POLICY AND STATEMENT OF PURPOSE. 71-4505. DEFINITIONS. 71-4507. NATURE OF RIGHTS; SUBORDINATION OF INTERESTS. 71-4509. CONTENTS OF ENVIRONMENTAL COVENANT. 71-4511. VALIDITY; EFFECT ON OTHER INSTRUMENTS. 71-4513. RELATIONSHIP TO OTHER LAND USE LAW. 71-4515. NOTICE. 71-4517. RECORDING. 71-4519. COORDINATION WITH LOCAL GOVERNMENTS. 71-4521. DURATION. 71-4523. AMENDMENT OR TERMINATION BY CONSENT. 71-4525. ENFORCEMENT OF ENVIRONMENTAL COVENANT. 71-4527. UNIFORMITY OF APPLICATION AND CONSTRUCTION. 71-4529. REGULATIONS. 71-4531. SEVERABILITY. S 71-4501. SHORT TITLE. THIS TITLE SHALL BE KNOWN AND MAY BE CITED AS THE "UNIFORM ENVIRON- MENTAL COVENANTS ACT". S 71-4503. DECLARATION OF POLICY AND STATEMENT OF PURPOSE. THE LEGISLATURE HEREBY FINDS AND DECLARES THAT CONTAMINATED SITE REME- DIAL PROGRAMS ARE AN IMPORTANT AND NECESSARY COMPONENT OF THE STATE'S POLICY OF RESTORING AND REVITALIZING REAL PROPERTY LOCATED THROUGHOUT NEW YORK STATE. THE LEGISLATURE FURTHER FINDS THAT WHEN AN ENVIRONMENTAL REMEDIATION PROJECT LEAVES RESIDUAL CONTAMINATION AT LEVELS THAT HAVE BEEN DETERMINED TO BE SAFE FOR A SPECIFIC USE, BUT NOT ALL USES, OR INCLUDES ENGINEERED STRUCTURES THAT MUST BE MAINTAINED OR PROTECTED AGAINST DAMAGE TO BE EFFECTIVE, IT IS NECESSARY TO PROVIDE AN EFFECTIVE AND ENFORCEABLE MEANS OF ENSURING THE PERFORMANCE OF MAINTENANCE, MONI- TORING OR OPERATION REQUIREMENTS, AND OF ENSURING THE POTENTIAL RESTRICTION OF FUTURE USES OF THE LAND, INCLUDING RESTRICTIONS ON DRILL- ING FOR OR PUMPING GROUNDWATER, FOR AS LONG AS ANY RESIDUAL CONTAM- INATION REMAINS HAZARDOUS. THE LEGISLATURE DECLARES, THEREFORE, THAT IT IS IN THE PUBLIC INTEREST TO CREATE LAND USE CONTROLS IN THE FORM OF ENVIRONMENTAL COVENANTS BECAUSE SUCH ENVIRONMENTAL COVENANTS ARE NECES- SARY FOR THE PROTECTION OF HUMAN HEALTH AND THE ENVIRONMENT AND TO ACHIEVE THE REQUIREMENTS FOR REMEDIATION ESTABLISHED AT CONTAMINATED SITES. IT IS THE INTENT OF THE LEGISLATURE THAT THE PROVISIONS OF THISS. 1664 4
SECTION SHALL NOT BE CONSTRUED AS LIMITING OR OTHERWISE AFFECTING ANY AUTHORITY CONFERRED UPON THE DEPARTMENT BY ANY OTHER PROVISION OF LAW. S 71-4505. DEFINITIONS. WHEN USED IN THIS TITLE: 1. "ACTIVITY AND USE LIMITATIONS" MEANS RESTRICTIONS OR OBLIGATIONS CREATED UNDER THIS TITLE WITH RESPECT TO REAL PROPERTY. 2. "AFFECTED LOCAL GOVERNMENT" MEANS EVERY MUNICIPALITY IN WHICH LAND SUBJECT TO AN ENVIRONMENTAL COVENANT IS LOCATED. 3. "COMMON INTEREST COMMUNITY" MEANS A CONDOMINIUM, COOPERATIVE, OR OTHER REAL PROPERTY ASSOCIATION OR ORGANIZATION WITH RESPECT TO WHICH A PERSON, BY VIRTUE OF THE PERSON'S COMMON INTEREST, AS THAT TERM IS DEFINED IN SECTION THREE HUNDRED THIRTY-NINE-E OF THE REAL PROPERTY LAW, OR OWNERSHIP OF A UNIT, SHARE OR PARCEL OF REAL PROPERTY, IS OBLIGATED TO PAY PROPERTY TAXES OR INSURANCE PREMIUMS, OR FOR MAINTENANCE, OR IMPROVEMENT OF OTHER REAL PROPERTY DESCRIBED IN A RECORDED DECLARATION OR COVENANT THAT CREATES THE COMMON INTEREST COMMUNITY. 4. "ENVIRONMENTAL COVENANT" MEANS A SERVITUDE RUNNING WITH THE LAND ARISING UNDER AN ENVIRONMENTAL REMEDIAL PROGRAM THAT IMPOSES ACTIVITY AND USE LIMITATIONS AS WELL AS MAINTENANCE, MONITORING OR OPERATION REQUIREMENTS ASSOCIATED WITH THE ENVIRONMENTAL REMEDIAL PROGRAM. 5. "ENVIRONMENTAL REMEDIAL PROGRAM" MEANS A REMEDIAL PROGRAM CONDUCTED AT REAL PROPERTY: (A) UNDER A FEDERAL OR STATE PROGRAM GOVERNING ENVIRONMENTAL REMEDI- ATION OF REAL PROPERTY, INCLUDING REMEDIAL PROGRAMS PURSUANT TO TITLES THIRTEEN AND FOURTEEN OF ARTICLE TWENTY-SEVEN OF THIS CHAPTER, TITLE FIVE OF ARTICLE FIFTY-SIX OF THIS CHAPTER AND ARTICLE TWELVE OF THE NAVIGATION LAW; (B) INCIDENT TO A DEPARTMENT-APPROVED CLOSURE OF A SOLID OR HAZARDOUS WASTE MANAGEMENT UNIT; (C) UNDER A CORRECTIVE ACTION PLAN PURSUANT TO TITLE NINE OF ARTICLE TWENTY-SEVEN OF THIS CHAPTER; OR (D) UNDER OTHER DEPARTMENT REMEDIAL PROGRAMS. 6. "HOLDER" MEANS THE GRANTEE OF AN ENVIRONMENTAL COVENANT AS SPECI- FIED IN SUBDIVISION ONE OF SECTION 71-4507 OF THIS TITLE. 7. "PERSON" MEANS AN INDIVIDUAL, CORPORATION, BUSINESS TRUST, ESTATE, TRUST, PARTNERSHIP, LIMITED LIABILITY COMPANY, ASSOCIATION, JOINT VENTURE, PUBLIC CORPORATION, GOVERNMENT, GOVERNMENTAL SUBDIVISION, AGEN- CY, OR INSTRUMENTALITY, OR ANY OTHER LEGAL OR COMMERCIAL ENTITY. 8. "RECORD", USED AS A NOUN, MEANS INFORMATION THAT IS INSCRIBED ON A TANGIBLE MEDIUM OR THAT IS STORED IN AN ELECTRONIC OR OTHER MEDIUM AND IS RETRIEVABLE IN PERCEIVABLE FORM. S 71-4507. NATURE OF RIGHTS; SUBORDINATION OF INTERESTS. 1. THE DEPARTMENT SHALL BE A HOLDER AND MAY IDENTIFY ONE OR MORE ADDI- TIONAL HOLDERS OR BENEFICIARIES. THE INTEREST OF A HOLDER IS AN INTEREST IN REAL PROPERTY. 2. A RIGHT OF THE DEPARTMENT OR OTHER INTENDED BENEFICIARY UNDER THIS TITLE OR UNDER AN ENVIRONMENTAL COVENANT, OTHER THAN A RIGHT AS A HOLD- ER, IS NOT AN INTEREST IN REAL PROPERTY. 3. THE DEPARTMENT IS BOUND BY ANY OBLIGATION IT ASSUMES IN AN ENVIRON- MENTAL COVENANT, BUT THE DEPARTMENT DOES NOT ASSUME OBLIGATIONS MERELY BY SIGNING AN ENVIRONMENTAL COVENANT. ANY OTHER PERSON THAT SIGNS AN ENVIRONMENTAL COVENANT IS BOUND BY THE OBLIGATIONS THE PERSON ASSUMES IN THE COVENANT, BUT SIGNING THE COVENANT DOES NOT CHANGE OBLIGATIONS, RIGHTS, OR PROTECTIONS GRANTED OR IMPOSED UNDER LAW OTHER THAN THIS TITLE EXCEPT AS PROVIDED IN THE COVENANT.S. 1664 5
4. THE FOLLOWING RULES APPLY TO INTERESTS IN REAL PROPERTY IN EXIST- ENCE AT THE TIME AN ENVIRONMENTAL COVENANT IS CREATED OR AMENDED: (A) AN INTEREST THAT HAS PRIORITY UNDER OTHER LAW IS NOT AFFECTED BY AN ENVIRONMENTAL COVENANT UNLESS THE PERSON THAT OWNS THE INTEREST SUBORDINATES THAT INTEREST TO THE COVENANT. (B) THIS TITLE DOES NOT REQUIRE A PERSON THAT OWNS A PRIOR INTEREST TO SUBORDINATE THAT INTEREST TO AN ENVIRONMENTAL COVENANT OR TO AGREE TO BE BOUND BY THE COVENANT. (C) A SUBORDINATION AGREEMENT MAY BE CONTAINED IN AN ENVIRONMENTAL COVENANT COVERING REAL PROPERTY OR IN A SEPARATE RECORD. IF THE ENVIRON- MENTAL COVENANT COVERS COMMONLY OWNED PROPERTY IN A COMMON INTEREST COMMUNITY, THE SUBORDINATE AGREEMENT OR RECORD MAY BE SIGNED BY ANY PERSON AUTHORIZED BY LAW, A RECORDED INSTRUMENT, OR THE GOVERNING BOARD OF THE OWNERS' ASSOCIATION TO BIND THE COMMON INTEREST COMMUNITY. (D) AN AGREEMENT BY A PERSON TO SUBORDINATE A PRIOR INTEREST TO AN ENVIRONMENTAL COVENANT AFFECTS THE PRIORITY OF THAT PERSON'S INTEREST BUT DOES NOT BY ITSELF IMPOSE ANY AFFIRMATIVE OBLIGATION ON THE PERSON WITH RESPECT TO THE ENVIRONMENTAL COVENANT. 5. THE DEPARTMENT MAY REQUIRE THAT A SUBORDINATION AGREEMENT BE OBTAINED AS A CONDITION OF ACCEPTING AN ENVIRONMENTAL COVENANT TO PROTECT PUBLIC HEALTH AND THE ENVIRONMENT. S 71-4509. CONTENTS OF ENVIRONMENTAL COVENANT. 1. AN ENVIRONMENTAL COVENANT MUST BE ON A FORM PRESCRIBED BY THE DEPARTMENT AND: (A) BE GRANTED BY THE TITLE OWNERS OF THE RELEVANT REAL ESTATE ONLY BY AN INSTRUMENT THAT COMPLIES WITH THE REQUIREMENTS OF SECTION 5-703 OF THE GENERAL OBLIGATIONS LAW AND IS SIGNED AND ACKNOWLEDGED IN THE MANNER OF A DEED TO BE RECORDED; (B) STATE THAT THE INSTRUMENT IS AN ENVIRONMENTAL COVENANT EXECUTED PURSUANT TO THIS TITLE; (C) DESCRIBE THE PROPERTY ENCUMBERED BY THE ENVIRONMENTAL COVENANT BY ADEQUATE LEGAL DESCRIPTION OR BY REFERENCE TO A RECORDED MAP SHOWING ITS BOUNDARIES AND BEARING THE SEAL AND SIGNATURE OF A LICENSED LAND SURVEYOR OR, IF THE COVENANT ENCUMBERS THE ENTIRE PROPERTY DESCRIBED IN A DEED OF RECORD, THE COVENANT MAY INCORPORATE BY REFERENCE THE DESCRIPTION IN SUCH DEED, OTHERWISE IT SHALL REFER TO THE LIBER AND PAGE OF THE DEED OR DEEDS OF THE RECORD OWNER OR OWNERS OF THE REAL PROPERTY BURDENED BY THE ENVIRONMENTAL COVENANT; (D) DESCRIBE THE ACTIVITY AND USE LIMITATIONS ON THE REAL PROPERTY; (E) INCLUDE ANY ENGINEERING CONTROLS AND/OR MAINTENANCE REQUIRED FOR THE ENVIRONMENTAL COVENANT OR PROVIDE A REFERENCE TO PUBLICLY AVAILABLE DOCUMENTS CONTAINING SUCH INFORMATION; (F) DESCRIBE THE REQUIREMENTS FOR NOTICE FOLLOWING TRANSFER OF A SPEC- IFIED INTEREST IN, OR CONCERNING PROPOSED CHANGES IN USE OF, APPLICA- TIONS FOR BUILDING PERMITS FOR, OR PROPOSALS FOR ANY SITE WORK AFFECTING THE CONTAMINATION ON THE PROPERTY SUBJECT TO THE COVENANT; (G) DESCRIBE THE REQUIREMENTS FOR PERIODIC REPORTING DESCRIBING COMPLIANCE WITH THE COVENANT; (H) DESCRIBE THE RIGHTS OF ACCESS TO THE PROPERTY GRANTED IN CONNECTION WITH IMPLEMENTATION OR ENFORCEMENT OF THE COVENANT, INCLUDING BUT NOT LIMITED TO THE RIGHT OF AGENTS, EMPLOYEES, OR OTHER REPRESEN- TATIVES OF THE STATE TO ENTER AND INSPECT THE PROPERTY BURDENED BY AN ENVIRONMENTAL COVENANT IN A REASONABLE MANNER AND AT REASONABLE TIMES TO ASSURE COMPLIANCE WITH THE RESTRICTION; (I) IDENTIFY THE DEPARTMENT AS THE HOLDER AND, IF APPROPRIATE, THE FEDERAL GOVERNMENT OR OTHER APPROPRIATE PARTY AS AN ADDITIONAL HOLDER ORS. 1664 6
INTENDED THIRD PARTY BENEFICIARY. IF THERE IS A HOLDER IN ADDITION TO THE DEPARTMENT, THE DEPARTMENT MUST APPROVE THE HOLDER, AND THE HOLDER MUST AGREE TO THE TERMS OF THE COVENANT; (J) INCLUDE AN ACKNOWLEDGMENT BY THE DEPARTMENT OF ITS ACCEPTANCE OF THE ENVIRONMENTAL COVENANT; (K) BE SIGNED BY EVERY HOLDER AND, UNLESS WAIVED BY THE DEPARTMENT, EVERY OWNER OF THE FEE SIMPLE OF THE REAL PROPERTY SUBJECT TO THE COVEN- ANT; (L) IDENTIFY THE NAME AND LOCATION OF ANY ADMINISTRATIVE RECORD FOR THE ENVIRONMENTAL REMEDIAL PROGRAM REFLECTED IN THE ENVIRONMENTAL COVEN- ANT; (M) INCLUDE AN AGREEMENT TO INCORPORATE, EITHER IN FULL OR BY REFER- ENCE, THE ENVIRONMENTAL COVENANT IN ANY LEASES, LICENSES, OR OTHER INSTRUMENTS GRANTING A RIGHT TO USE THE PROPERTY THAT MAY BE AFFECTED BY SUCH COVENANT; AND (N) THE DEPARTMENT MAY REQUIRE THAT INFORMATION DELINEATED IN PARA- GRAPHS (D), (E), (F), (G) AND (H) OF THIS SUBDIVISION BE ENUMERATED IN A SITE MANAGEMENT PLAN IN LIEU OF BEING SET FORTH IN THE ENVIRONMENTAL COVENANT. 2. IN ADDITION TO THE INFORMATION REQUIRED BY SUBDIVISION ONE OF THIS SECTION, AN ENVIRONMENTAL COVENANT MAY CONTAIN OTHER INFORMATION, RESTRICTIONS, AND REQUIREMENTS AGREED TO BY THE PERSONS WHO SIGNED IT, INCLUDING ANY: (A) LIMITATION ON AMENDMENT OR TERMINATION OF THE COVENANT IN ADDITION TO THOSE CONTAINED IN SECTIONS 71-4521 AND 71-4523 OF THIS TITLE; AND (B) RIGHTS OF THE HOLDER IN ADDITION TO ITS RIGHT TO ENFORCE THE COVENANT PURSUANT TO SECTION 71-4525 OF THIS TITLE. 3. IN ADDITION TO OTHER CONDITIONS FOR ITS APPROVAL OF AN ENVIRON- MENTAL COVENANT, THE DEPARTMENT MAY REQUIRE THOSE PERSONS SPECIFIED BY THE DEPARTMENT WHO HAVE INTERESTS IN THE REAL PROPERTY TO SIGN THE COVENANT. 4. THE TITLE OWNERS SHALL FURNISH TO THE DEPARTMENT ABSTRACTS OF TITLE AND OTHER DOCUMENTS SUFFICIENT TO ENABLE THE DEPARTMENT TO DETERMINE THAT THE ENVIRONMENTAL COVENANTS SHALL BE AN EFFECTIVE AND ENFORCEABLE MEANS OF ENSURING: (A) THE PERFORMANCE OF MAINTENANCE, MONITORING AND OPERATING REQUIRE- MENTS; AND (B) ACTIVITIES AND USE LIMITATIONS. 5. UNTIL SUCH TIME AS THE ENVIRONMENTAL COVENANT IS EXTINGUISHED, THE PROPERTY DEED AND ALL SUBSEQUENT INSTRUMENTS OF CONVEYANCE RELATING TO THE SUBJECT PROPERTY SHALL STATE IN AT LEAST FIFTEEN-POINT BOLD-FACED TYPE: "THIS PROPERTY IS SUBJECT TO AN ENVIRONMENTAL COVENANT HELD BY THE NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION PURSUANT TO TITLE 45 OF ARTICLE 71 OF THE ENVIRONMENTAL CONSERVATION LAW." THE PROP- ERTY DEED AND ALL SUBSEQUENT INSTRUMENTS OF CONVEYANCE RELATING TO THE PROPERTY ENCUMBERED BY THE COVENANT SHALL REFERENCE, BY BOOK AND PAGE NUMBER, THE ENVIRONMENTAL COVENANT. SUCH DEED AND INSTRUMENT SHALL ALSO SPECIFY THAT THE ELIGIBLE PROPERTY IS SUBJECT TO THE RESTRICTIONS CONTAINED IN SUCH COVENANT. AN INSTRUMENT FOR THE PURPOSE OF CREATING, CONVEYING, MODIFYING, OR TERMINATING AN ENVIRONMENTAL COVENANT SHALL NOT BE EFFECTIVE UNLESS RECORDED. S 71-4511. VALIDITY; EFFECT ON OTHER INSTRUMENTS. 1. AN ENVIRONMENTAL COVENANT THAT COMPLIES WITH THIS TITLE RUNS WITH THE LAND. 2. AN ENVIRONMENTAL COVENANT THAT IS OTHERWISE EFFECTIVE IS VALID AND ENFORCEABLE EVEN IF:S. 1664 7
(A) IT IS NOT APPURTENANT TO AN INTEREST IN REAL PROPERTY; (B) IT IS NOT OF A CHARACTER THAT HAS BEEN RECOGNIZED TRADITIONALLY AT COMMON LAW; (C) IT IMPOSES A NEGATIVE BURDEN; (D) IT IMPOSES AN AFFIRMATIVE OBLIGATION ON A PERSON HAVING AN INTER- EST IN THE REAL PROPERTY OR ON THE HOLDER; (E) THE BENEFIT OR BURDEN DOES NOT TOUCH OR CONCERN REAL PROPERTY; OR (F) THERE IS NO PRIVITY OF ESTATE OR CONTRACT. 3. AN INSTRUMENT THAT CREATES RESTRICTIONS OR OBLIGATIONS WITH RESPECT TO REAL PROPERTY THAT WOULD QUALIFY AS ACTIVITY AND USE LIMITATIONS EXCEPT FOR THE FACT THAT THE INSTRUMENT WAS RECORDED BEFORE THE EFFEC- TIVE DATE OF THIS TITLE IS NOT INVALID OR UNENFORCEABLE BECAUSE OF ANY OF THE LIMITATIONS ON ENFORCEMENT OF INTERESTS DESCRIBED IN SUBDIVISION TWO OF THIS SECTION OR BECAUSE IT WAS IDENTIFIED AS AN EASEMENT, SERVI- TUDE, DEED RESTRICTION, OR OTHER INTEREST. THIS TITLE DOES NOT APPLY IN ANY OTHER RESPECT TO SUCH AN INSTRUMENT. 4. THIS TITLE DOES NOT INVALIDATE OR RENDER UNENFORCEABLE ANY INTER- EST, WHETHER DESIGNATED AS AN ENVIRONMENTAL COVENANT OR OTHER INTEREST, THAT IS OTHERWISE ENFORCEABLE UNDER THE LAWS OF THIS STATE. 5. THIS TITLE SHALL NOT AFFECT ANY INTERESTS OR RIGHTS IN REAL PROPER- TY WHICH ARE NOT ENVIRONMENTAL COVENANTS, AND SHALL NOT AFFECT THE RIGHTS OF OWNERS TO CONVEY ANY INTERESTS IN REAL PROPERTY WHICH THEY COULD NOW CREATE UNDER EXISTING LAW WITHOUT REFERENCE TO THE TERMS OF THIS TITLE. NOTHING IN THIS TITLE SHALL DIMINISH THE POWERS GRANTED BY ANY OTHER LAW TO ACQUIRE INTERESTS OR RIGHTS IN REAL PROPERTY BY PURCHASE, GIFT, EMINENT DOMAIN, OR OTHERWISE AND TO USE THE SAME FOR PUBLIC PURPOSES. S 71-4513. RELATIONSHIP TO OTHER LAND USE LAW. THIS TITLE DOES NOT AUTHORIZE A USE OF REAL PROPERTY THAT IS OTHERWISE PROHIBITED BY ZONING, BY LAW OTHER THAN THIS TITLE REGULATING USE OF REAL PROPERTY, OR BY A RECORDED INSTRUMENT THAT HAS PRIORITY OVER THE ENVIRONMENTAL COVENANT. AN ENVIRONMENTAL COVENANT MAY PROHIBIT OR RESTRICT USES OF REAL PROPERTY WHICH ARE AUTHORIZED BY ZONING OR BY LAW OTHER THAN THIS TITLE. S 71-4515. NOTICE. 1. A COPY OF AN ENVIRONMENTAL COVENANT, AND ANY AMENDMENT OR TERMI- NATION THEREOF, SHALL BE PROVIDED IN THE MANNER REQUIRED BY THE DEPART- MENT TO: (A) EACH PERSON THAT SIGNED THE COVENANT; (B) EACH PERSON HOLDING A RECORDED INTEREST IN THE REAL PROPERTY SUBJECT TO THE COVENANT; (C) EACH PERSON IN POSSESSION OF THE REAL PROPERTY SUBJECT TO THE COVENANT; (D) EACH AFFECTED LOCAL GOVERNMENT; AND (E) ANY OTHER PERSON THE DEPARTMENT REQUIRES. 2. THE VALIDITY OF A COVENANT IS NOT AFFECTED BY FAILURE TO PROVIDE A COPY OF THE COVENANT AS REQUIRED UNDER THIS SECTION. 3. THE DEPARTMENT SHALL INCLUDE A COPY OF EACH ENVIRONMENTAL COVENANT IN THE DATABASE CREATED PURSUANT TO SECTION 27-1415 OF THIS CHAPTER AND MAKE SUCH DATABASE READILY SEARCHABLE. S 71-4517. RECORDING. 1. AN ENVIRONMENTAL COVENANT AND ANY AMENDMENT OR TERMINATION OF THE COVENANT MUST BE RECORDED IN THE OFFICE OF THE RECORDING OFFICER IN THE MANNER PRESCRIBED BY ARTICLE NINE OF THE REAL PROPERTY LAW IN EVERY COUNTY IN WHICH ANY PORTION OF THE REAL PROPERTY SUBJECT TO THE COVENANTS. 1664 8
IS LOCATED. FOR PURPOSES OF INDEXING, A HOLDER SHALL BE TREATED AS A GRANTEE. 2. EXCEPT AS OTHERWISE PROVIDED IN SUBDIVISION TWO OF SECTION 71-4521 OF THIS TITLE, AN ENVIRONMENTAL COVENANT IS SUBJECT TO THE LAWS OF THIS STATE GOVERNING RECORDING AND PRIORITY OF INTERESTS IN REAL PROPERTY. S 71-4519. COORDINATION WITH LOCAL GOVERNMENTS. WHENEVER AN AFFECTED LOCAL GOVERNMENT RECEIVES AN APPLICATION FOR A BUILDING PERMIT OR ANY OTHER APPLICATION AFFECTING LAND USE OR DEVELOP- MENT OF LAND THAT IS SUBJECT TO AN ENVIRONMENTAL COVENANT AND THAT MAY RELATE TO OR IMPACT SUCH COVENANT, THE AFFECTED LOCAL GOVERNMENT SHALL NOTIFY THE DEPARTMENT AND REFER SUCH APPLICATION TO THE DEPARTMENT. THE DEPARTMENT SHALL EVALUATE WHETHER THE APPLICATION IS CONSISTENT WITH THE ENVIRONMENTAL COVENANT AND SHALL NOTIFY THE AFFECTED LOCAL GOVERNMENT OF ITS DETERMINATION IN A TIMELY FASHION, CONSIDERING THE TIME FRAME FOR THE LOCAL GOVERNMENT'S REVIEW OF THE APPLICATION. THE AFFECTED LOCAL GOVERNMENT SHALL NOT APPROVE THE APPLICATION UNTIL IT RECEIVES APPROVAL FROM THE DEPARTMENT. S 71-4521. DURATION. 1. AN ENVIRONMENTAL COVENANT IS PERPETUAL UNLESS IT IS: (A) BY ITS TERMS LIMITED TO A SPECIFIC DURATION OR TERMINATED BY THE OCCURRENCE OF A SPECIFIC EVENT; OR (B) EXTINGUISHED OR AMENDED BY A RELEASE OR AMENDMENT OF THE ENVIRON- MENTAL COVENANT EXECUTED BY THE DEPARTMENT AND FILED WITH THE OFFICE OF THE RECORDING OFFICER FOR THE COUNTY OR COUNTIES WHERE THE LAND IS SITU- ATED IN THE MANNER PRESCRIBED BY ARTICLE NINE OF THE REAL PROPERTY LAW. 2. EXCEPT AS OTHERWISE PROVIDED IN SUBDIVISION ONE OF THIS SECTION, AN ENVIRONMENTAL COVENANT MAY NOT BE EXTINGUISHED, LIMITED, OR IMPAIRED THROUGH FORECLOSURE OF A LIEN, ISSUANCE OF A TAX DEED, FORECLOSURE OF A TAX LIEN, OR APPLICATION OF THE DOCTRINE OF ADVERSE POSSESSION, PRESCRIPTION, EMINENT DOMAIN, ABANDONMENT, WAIVER, LACK OF ENFORCEMENT, OR ACQUIESCENCE, OR A SIMILAR DOCTRINE. S 71-4523. AMENDMENT OR TERMINATION BY CONSENT. 1. AN ENVIRONMENTAL COVENANT MAY BE AMENDED OR TERMINATED BY CONSENT ONLY IF THE AMENDMENT OR TERMINATION IS SIGNED IN THE MANNER PRESCRIBED BY SECTION 71-4509 OF THIS TITLE BY: (A) THE DEPARTMENT; AND (B) UNLESS WAIVED BY THE DEPARTMENT, THE CURRENT OWNER OF THE FEE SIMPLE OF THE REAL PROPERTY SUBJECT TO THE COVENANT. 2. IF AN INTEREST IN REAL PROPERTY IS SUBJECT TO AN ENVIRONMENTAL COVENANT, THE INTEREST IS NOT AFFECTED BY AN AMENDMENT OF THE COVENANT UNLESS THE CURRENT OWNER OF THE INTEREST CONSENTS TO THE AMENDMENT OR HAS WAIVED IN A WRITING, SIGNED IN THE MANNER PRESCRIBED BY SECTION 71-4509 OF THIS TITLE, THE RIGHT TO CONSENT TO AMENDMENTS. S 71-4525. ENFORCEMENT OF ENVIRONMENTAL COVENANT. 1. A CIVIL ACTION FOR INJUNCTIVE OR OTHER EQUITABLE RELIEF FOR VIOLATION OF AN ENVIRONMENTAL COVENANT MAY BE MAINTAINED BY: (A) A PARTY TO THE COVENANT; (B) THE DEPARTMENT; (C) ANY AFFECTED LOCAL GOVERNMENT; (D) ANY PERSON TO WHOM THE COVENANT EXPRESSLY GRANTS POWER TO ENFORCE, OR IS IDENTIFIED IN THE COVENANT AS AN INTENDED BENEFICIARY; OR (E) A PERSON WHOSE INTEREST IN THE REAL PROPERTY OR WHOSE COLLATERAL OR LIABILITY MAY BE AFFECTED BY THE ALLEGED VIOLATION OF THE COVENANT. 2. THE ENVIRONMENTAL COVENANT IS ENFORCEABLE AGAINST THE OWNER OF THE BURDENED PROPERTY, ANY LESSEES, AND ANY PERSON USING THE LAND.S. 1664 9
3. A PERSON IS NOT RESPONSIBLE FOR OR SUBJECT TO LIABILITY FOR ENVI- RONMENTAL REMEDIATION SOLELY BECAUSE IT HAS THE RIGHT TO ENFORCE AN ENVIRONMENTAL COVENANT. 4. ENFORCEMENT SHALL NOT BE DEFEATED BECAUSE OF ANY SUBSEQUENT ADVERSE POSSESSION, LACHES, ESTOPPEL, OR WAIVER. NO GENERAL LAW OF THE STATE WHICH OPERATES TO DEFEAT THE ENFORCEMENT OF ANY INTEREST IN REAL PROPER- TY SHALL OPERATE TO DEFEAT THE ENFORCEMENT OF ANY ENVIRONMENTAL COVENANT UNLESS SUCH GENERAL LAW EXPRESSLY STATES THE INTENT TO DEFEAT THE ENFORCEMENT OF SUCH COVENANT OR PROVIDES FOR THE EXERCISE OF THE POWER OF EMINENT DOMAIN. 5. FOR ANY PERSON WHO INTENTIONALLY VIOLATES AN ENVIRONMENTAL COVENANT THE DEPARTMENT MAY REVOKE THE CERTIFICATE OF COMPLETION PROVIDED BY SECTION 27-1419 OF THIS CHAPTER AS TO THE RELEVANT REAL ESTATE. S 71-4527. UNIFORMITY OF APPLICATION AND CONSTRUCTION. IN APPLYING AND CONSTRUING THIS TITLE, CONSIDERATION MUST BE GIVEN TO THE NEED TO PROMOTE UNIFORMITY OF THE LAW WITH RESPECT TO ITS SUBJECT MATTER AMONG STATES THAT ENACT IT. S 71-4529. REGULATIONS. THE DEPARTMENT IS AUTHORIZED TO PROMULGATE RULES AND REGULATIONS NECESSARY AND APPROPRIATE TO CARRY OUT THE PURPOSES OF THIS TITLE. S 71-4531. SEVERABILITY. THE PROVISIONS OF THIS TITLE SHALL BE SEVERABLE, AND IF ANY CLAUSE, SENTENCE, PARAGRAPH, SUBDIVISION, OR PART OF THIS TITLE SHALL BE ADJUDGED BY ANY COURT OF COMPETENT JURISDICTION TO BE INVALID, SUCH JUDGMENT SHALL NOT AFFECT, IMPAIR OR INVALIDATE THE REMAINDER THEREOF, BUT SHALL BE CONFINED IN ITS OPERATION TO THE CLAUSE, SENTENCE, PARA- GRAPH, SUBDIVISION, OR PART THEREOF DIRECTLY INVOLVED IN THE CONTROVERSY IN WHICH SUCH JUDGMENT SHALL HAVE BEEN RENDERED; PROVIDED THAT IF AN ENVIRONMENTAL COVENANT CREATED PURSUANT TO THIS TITLE IS DETERMINED BY ANY COURT OF COMPETENT JURISDICTION TO BE LAND OR WATER OR AN INTEREST IN LAND OR WATER SUBJECT TO THE PROVISIONS OF ARTICLE FOURTEEN OF THE CONSTITUTION, THEN THE AUTHORITY OF THE STATE TO HOLD OR ACQUIRE SUCH COVENANT AND THE CONVEYANCE TO THE STATE OF SUCH COVENANT SHALL BE VOID AB INITIO. S 4. Subdivision (b) of section 27-1318 of the environmental conserva- tion law, as amended by section 2 of part E of chapter 577 of the laws of 2004, is amended to read as follows: (b) Within sixty days of commencement of the remedial design, the owner of an inactive hazardous waste disposal site, and/or any person responsible for implementing a remedial program at such site, where institutional or engineering controls are employed pursuant to this title, shall execute an environmental easement pursuant to title thir- ty-six of article seventy-one of this chapter OR AN ENVIRONMENTAL COVEN- ANT PURSUANT TO TITLE FORTY-FIVE OF ARTICLE SEVENTY-ONE OF THIS CHAPTER. S 5. Paragraph (d) of subdivision 7 of section 27-1415 of the environ- mental conservation law, as added by section 1 of part A of chapter 1 of the laws of 2003, is amended to read as follows: (d) The commissioner shall create, update, and maintain a database system for public information purposes and to monitor and track all brownfield sites subject to this title. Data incorporated into such system for each site for which information has been collected pursuant to this title shall include, but shall not be limited to, a site summa- ry, name of site owner, location, status of site remedial activity,
[and, if one has been created pursuant to title thirty-six of article seventy-one of this chapter, a copy of the environmental easement,]and a contact number to obtain additional information. THE DATABASE SHALLS. 1664 10
ALSO INCLUDE FOR EACH SITE A COPY OF THE ENVIRONMENTAL EASEMENT, IF ONE HAS BEEN CREATED PURSUANT TO TITLE THIRTY-SIX OF ARTICLE SEVENTY-ONE OF THIS CHAPTER, OR A COPY OF THE ENVIRONMENTAL COVENANT, IF ONE HAS BEEN CREATED PURSUANT TO TITLE FORTY-FIVE OF ARTICLE SEVENTY-ONE OF THIS CHAPTER. Sites shall be added to such system upon the execution of a brownfield site cleanup agreement
[pursuant to section 27-1409 of this title]. If and when an environmental easement OR COVENANT is modified or extinguished, the copy of the environmental easement OR COVENANT contained in the database shall be updated accordingly. Such database shall be in such a format that it can be readily searched by affected local governments and the public for purposes including but not limited to determining whether an environmental easement OR COVENANT has been recorded for a site pursuant to title thirty-six OR FORTY-FIVE of arti- cle seventy-one of this chapter. The database shall be available elec- tronically. Information from this database shall be incorporated into the geographic information system created and maintained by the depart- ment pursuant to section 3-0315 of this chapter. S 6. Paragraph (e) of subdivision 2 of section 27-1419 of the environ- mental conservation law, as added by section 1 of part A of chapter 1 of the laws of 2003, is amended to read as follows: (e) a certification that any use restrictions, institutional controls, engineering controls and/or any operation and maintenance requirements applicable to the site are contained in an environmental easement created and recorded pursuant to title thirty-six of article seventy-one of this chapter OR AN ENVIRONMENTAL COVENANT CREATED AND RECORDED PURSU- ANT TO TITLE FORTY-FIVE OF SUCH ARTICLE and that any affected local governments, as defined in title thirty-six of SUCH article [seventy-one of this chapter]have been notified that such easement OR COVENANT has been recorded; S 7. Paragraph (g) of subdivision 2 of section 56-0503 of the environ- mental conservation law, as amended by section 4 of part D of chapter 1 of the laws of 2003, is amended to read as follows: (g) An agreement by the municipality that it shall put into place any engineering and/or institutional controls (including environmental ease- ments pursuant to title thirty-six of article seventy-one of this chap- ter OR ENVIRONMENTAL COVENANTS PURSUANT TO TITLE FORTY-FIVE OF SUCH ARTICLE) that the department may deem necessary to allow the contem- plated use to proceed, that such engineering and/or institutional controls shall be binding on such municipality, any successor in title, and any lessees and that any successors in title and any lessees cannot challenge state enforcement of such controls; S 8. Paragraph 5 of subdivision (a) of section 21 of the tax law, as amended by section 1 of part H of chapter 577 of the laws of 2004, is amended to read as follows: (5) Applicable percentage. For purposes of paragraphs two, three and four of this subdivision, the applicable percentage shall be twelve percent [in the case of credits claimed under article nine, nine-A, thirty-two or thirty-three of this chapter, and ten percent in the case of credits claimed under article twenty-two of this chapter,]except that where at least fifty percent of the area of the qualified site relating to the credit provided for in this section is located in an environmental zone as defined in paragraph six of subdivision (b) of this section, the applicable percentage shall be increased by an addi- tional eight percent. Provided, however, as afforded in section 27-1419 of the environmental conservation law, if the certificate of completion indicates that the qualified site has been remediated to Track 1 as thatS. 1664 11
term is described in subdivision four of section 27-1415 of the environ- mental conservation law, the applicable percentage set forth in the first sentence of this paragraph shall be increased by an additional two percent. S 9. Subparagraph (A) of paragraph 3-a of subdivision (a) of section 21 of the tax law, as added by chapter 390 of the laws of 2008, is amended to read as follows: (A) Notwithstanding any other provision of law to the contrary, the tangible property credit component available for any qualified site pursuant to paragraph three of this subdivision shall not exceed thir- ty-five million dollars or three times THE SUM OF the costs included in the calculation of the site preparation credit component and the on-site groundwater remediation credit component under paragraphs two and four, respectively, of this subdivision, AND THE COSTS THAT WOULD HAVE BEEN INCLUDED IN THE CALCULATION OF SUCH COMPONENTS IF NOT TREATED AS AN EXPENSE AND DEDUCTED PURSUANT TO SECTION 198 OF THE INTERNAL REVENUE CODE, whichever is less; provided, however, that: (1) in the case of a qualified site to be used primarily for manufacturing activities, the tangible property credit component available for any qualified site pursuant to paragraph three of this subdivision shall not exceed
[forty-five]ONE HUNDRED FIFTY million dollars or [six]TWENTY times THE SUM OF the costs included in the calculation of the site preparation credit component and the on-site groundwater remediation credit compo- nent under paragraphs two and four, respectively, of this subdivision, AND THE COSTS THAT WOULD HAVE BEEN INCLUDED IN THE CALCULATION OF SUCH COMPONENTS IF NOT TREATED AS AN EXPENSE AND DEDUCTED PURSUANT TO SECTION 198 OF THE INTERNAL REVENUE CODE, whichever is less; and (2) the provisions of this paragraph shall not apply to any qualified site for which the department of environmental conservation has issued a notice to the taxpayer before June twenty-third, two thousand eight that its request for participation has been accepted under subdivision six of section 27-1407 of the environmental conservation law. S 10. Paragraph 6 of subdivision (b) of section 21 of the tax law, as amended by section 1 of part H of chapter 577 of the laws of 2004, subparagraph (B) and the closing paragraph as amended by section 1 of part G of chapter 62 of the laws of 2006, is amended to read as follows: (6) Environmental zones (EN-Zones). An "environmental zone" shall mean an area designated as such by the commissioner of economic development. Such areas so designated are areas which are census tracts and block numbering areas which, as of the [two thousand]MOST RECENT census, satisfy either of the following criteria: (A) areas that have both: (i) a poverty rate of at least twenty percent for the year to which the data relate; and (ii) an unemployment rate of at least one and one-quarter times the statewide unemployment rate for the year to which the data relate, or; (B) areas that have a poverty rate of at least two times the poverty rate for the county in which the areas are located for the year to which the data relate [provided, however, that a qualified site shall only be deemed to be located in an environmental zone under this subparagraph (B) if such site was the subject of a brownfield site cleanup agreement pursuant to section 27-1409 of the environmental conservation law that was entered into prior to September first, two thousand ten]. Such designation shall be made and a list of all such environmental zones shall be established by the commissioner of economic development no later than December thirty-first, two thousand [four provided, howev-TWELVE. S 11. Paragraph 5 of subdivision (a) of section 22 of the tax law, as amended by section 4 of part H of chapter 577 of the laws of 2004, subparagraph (B) and the closing paragraph as amended by section 2 of part G of chapter 62 of the laws of 2006, is amended to read as follows: (5) Environmental zones (EN-Zones). An "environmental zone" shall mean an area designated as such by the commissioner of economic development. Such areas so designated are areas which are census tracts and block numbering areas which, as of theS. 1664 12
er, that a qualified site shall only be deemed to be located in an envi- ronmental zone under subparagraph (B) of this paragraph if such site was the subject of a brownfield site cleanup agreement pursuant to section 27-1409 of the environmental conservation law that was entered into prior to September first, two thousand ten]
[two thousand]MOST RECENT census, satisfy either of the following criteria: (A) areas that have both: (i) a poverty rate of at least twenty percent for the year to which the data relate; (ii) an unemployment rate of at least one and one-quarter times the statewide unemployment rate for the year to which the data relate, or; (B) areas that have a poverty rate of at least two times the poverty rate for the county in which the areas are located for the year to which the data relate [, provided, however, that a qualified site shall only be deemed to be located in an environmental zone under this subparagraph (B) if such site was the subject of a brownfield site cleanup agreement pursuant to section 27-1409 of the environmental conservation law that was entered into prior to September first, two thousand ten]. Such designation shall be made and a list of all such environmental zones shall be established by the commissioner of economic development no later than December thirty-first, two thousand [four provided, howev- er, that a qualified site shall only be deemed to be located in an envi- ronmental zone under subparagraph (B) of this paragraph if such site was the subject of a brownfield site cleanup agreement pursuant to section 27-1409 of the environmental conservation law that was entered into prior to September first, two thousand ten]TWELVE. S 12. Subdivision (a) of section 23 of the tax law, as amended by section 10 of part H of chapter 577 of the laws of 2004, is amended to read as follows: (a) Allowance of credit. General. A taxpayer subject to tax under article nine, nine-A, twenty-two, thirty-two or thirty-three of this chapter shall be allowed a credit against such tax, pursuant to the provisions referenced in subdivision (e) of this section. The amount of such credit shall be equal to the lesser of [thirty]NINETY thousand dollars or fifty percent of the premiums paid on or after the date of the brownfield site cleanup agreement executed by the taxpayer and the department of environmental conservation pursuant to section 27-1409 of the environmental conservation law by the taxpayer for environmental remediation insurance issued with respect to a qualified site. S 13. Section 31 of part H of chapter 1 of the laws of 2003 amending the tax law relating to brownfield redevelopment tax credits, is REPEALED. S 14. Severability. If any clause, sentence, paragraph, subdivision, section or part of this act shall be adjudged by any court of competent jurisdiction to be invalid, such judgment shall not affect, impair or invalidate the remainder thereof, but shall be confined in its operation to the clause, sentence, paragraph, subdivision, section or part thereof directly involved in the controversy in which such judgment shall haveS. 1664 13
been rendered. It is hereby declared to be the intent of the legislature that this act would have been enacted even if such invalid provisions had not been included herein. S 15. This act shall take effect immediately and shall apply to a qualified site for which the commissioner of environmental conservation has issued a notice to the taxpayer or other applicant after July 1, 2013 that its request for participation has been accepted under subdivi- sion 6 of section 27-1407 of the environmental conservation law.