S5228-2011 Actions

• Jun 22, 2012: referred to environmental conservation
• Jun 21, 2012: DELIVERED TO ASSEMBLY
• Jun 21, 2012: PASSED SENATE
• Jun 21, 2012: ORDERED TO THIRD READING CAL.1512
• Jun 21, 2012: COMMITTEE DISCHARGED AND COMMITTED TO RULES
• Jun 5, 2012: REPORTED AND COMMITTED TO FINANCE
• Jan 9, 2012: PRINT NUMBER 5228A
• Jan 9, 2012: AMEND (T) AND RECOMMIT TO ENVIRONMENTAL CONSERVATION
• Jan 4, 2012: REFERRED TO ENVIRONMENTAL CONSERVATION
• May 17, 2011: REPORTED AND COMMITTED TO FINANCE
• May 3, 2011: REFERRED TO ENVIRONMENTAL CONSERVATION

S5228-2011 Meetings

S5228-2011 Votes

S5228-2011 Memo

BILL NUMBER:S5228

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; to
repeal subparagraph (D) of paragraph 3-a of subdivision (a) of section
21 of the tax law relating thereto; 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,
the State would adopt the environmental covenant standards that have
become the national norm for ongoing monitoring and restoration of
sites, and the Department of Environmental Conservation (DEC) would be
granted greater information on and access to contaminated 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 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 of the bill would amend section 119-b of the Public Service
Law to require a one-call system on excavation work to provide the
DEC with the information received and maintained by the system.

Section 9 of the bill would amend section 761 of the General Business
Law to require that notices of excavation also be relayed
electronically to the DEC.

Section 10 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 11 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 for these globally coveted projects.

Section 12 would repeal the two-percent credit increase for projects
conforming to a Brownfield opportunity Area (BOA) agreement certified
by the Department of State, to keep such agreements from overriding
municipal home-rule wishes and interfering with market driven
highest and best use standards. BOA's were never contemplated to
override local zoning standards and planning desires.

Section 13 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 14 would make conforming EZ changes to section 22 of the Tax
Law.

Section 15 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 16 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 17 provides for a severability clause for the sections of the
bill.

Section 18 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, 2011.

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:
This is a new bill.

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 to 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 $365,118,000 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 for 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, 2011.

S5228-2011 Text

                      S T A T E   O F   N E W   Y O R K
  ________________________________________________________________________

                                    5228

                         2011-2012 Regular Sessions

                              I N  SENATE

                                 May 3, 2011
                                 ___________

  Introduced  by Sen. GRISANTI -- 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; to repeal subparagraph (D)  of  paragraph  3-a  of
    subdivision  (a) of section 21 of the tax law relating thereto; 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

    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 this

   EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                        [ ] is old law to be omitted.
                                                             LBD11103-03-1

 S. 5228                             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 SHALL

 S. 5228                             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 THIS

 S. 5228                             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. 5228                             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 OR

 S. 5228                             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. 5228                             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 OR BECAUSE  IT  WAS  IDENTIFIED  AS  AN  EASEMENT,  SERVITUDE,  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 COVENANT

 S. 5228                             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. 5228                             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 SHALL

 S. 5228                            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.  Subdivision  5  of  section 119-b of the public service law, as
  amended by chapter 445 of the laws  of  1995,  is  amended  to  read  as
  follows:

    5.  Any  person  operating  a  one-call  system in the state shall (A)
  register with and obtain certification from the commission. The  commis-
  sion shall have the power to grant, amend, or revoke certificates of any
  such  system.  Any  one-call system engaged in business on or before the
  effective date of this subdivision, after registration with the  commis-
  sion,  shall  be  registered,  certified  and authorized to continue its
  business operations; AND (B) PROVIDE THE COMMISSIONER OF THE  DEPARTMENT
  OF  ENVIRONMENTAL CONSERVATION, AT NO COST, THE INFORMATION RECEIVED AND
  MAINTAINED BY SUCH ONE-CALL SYSTEM  IN  AN  ELECTRONIC  FORMAT  NO  LESS
  FREQUENTLY THAN ONE TIME PER WEEK.

 S. 5228                            11

    S  9. Paragraph a of subdivision 2 of section 761 of the general busi-
  ness law, as amended by chapter 445 of the laws of 1995, is  amended  to
  read as follows:

    a.  Receive notices from excavators of proposed excavation and demoli-
  tion activities and transmit the information contained in  such  notices
  to every member that operates an underground facility in the area of the
  proposed  activities AS WELL AS ELECTRONICALLY TRANSMITTING THE INFORMA-
  TION CONTAINED IN SUCH NOTICES TO THE COMMISSIONER OF THE DEPARTMENT  OF
  ENVIRONMENTAL CONSERVATION;
    S  10. 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 that
  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  11. 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. 5228                            12

    S 12. Subparagraph (D) of paragraph 3-a of subdivision (a) of  section
  21 of the tax law is REPEALED.
    S  13. 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-
  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] ELEVEN.
    S 14. 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  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;
    (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-

 S. 5228                            13

  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] ELEVEN.
    S  15.  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 16. 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 17. 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 have
  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  18.  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,
  2011 that its request for participation has been accepted under subdivi-
  sion six of section 27-1407 of the environmental conservation law.