Review of A9120 (pdf version)
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Part A
Title 14 – Brownfield Cleanup Program
27-1405 – Definitions
- Applicant is person requesting to participate in the program.
- Participant is an applicant who owned site at time of disposal or is responsible for discharge.
- Volunteer is applicant other than participant, including owners of property subsequent to disposal.
- Brownfields cannot be NPL sites, Class 1 or 2 sites except where owner is a volunteer until 7/1/05, RECRA sites or enforcement action sites except where TSDF with Part B permits.
27-1407 – Request for Participation
- Applicant sends in form to participate with work plan for investigation or final investigation report.
- DEC notifies on completeness in 10 days.
- 30 day comment period with ENB and newspaper notice. Also direct written notice to Brownfield contact list.
- DEC has 45 days to accept or reject the application.
- If a final investigation report submitted, applicant sets up repository and DEC has 60 days to accept or reject.
- Reasons for rejection on page 8 of the legislation.
27-1409 – Brownfield site cleanup agreement.
- includes applicant paying State costs, if significant threat can require TAG grants with reduction in State costs, dispute resolution clause, hold harmless clause for the State, State can terminate at any time for non-compliance.
- No State or local permits necessary if in technical compliance with permit conditions and is under a site cleanup agreement.
- Applicant must conduct investigation/remediation in compliance with approved work plans.
- Develop and submit citizen participation plan.
- Applicant must waive claims against the spill fund at completion of project.
- Other conditions as necessary.
- If applicant is a participant, recovery of past State costs.
27-1411 – Work Plan requirements.
- RI work plan characterizes nature and extent of contamination on-site and if applicant is a participant off-site also.
- Applicant must perform a qualitative exposure assessment for contamination emanating from a site as detailed in 27-1415.
- Final report must include all provisions above and state whether the site requires remediation or meets the requirements of this title without remediation. To demonstrate this, an alternatives analysis must be performed and the site must meet requirements for un-restricted use (track 1).
- Within 20 days of final report, DEC shall make a significant threat determination.
- A remedial work plan must provide for a remedial program within the boundaries of the site for a volunteer and also for off-site contamination if applicant is a participant.
- IRM work plans shall be developed for actions that are not emergency in nature. Final reports of IRM actions shall be submitted to the DEC after action.
- DEC shall make every effort to review and approve or reject work plans within 45 days of submittal or 15 days after end of comment periods, which ever is longest.
- If applicant is a volunteer, and the site poses a significant threat, the DEC will take enforcement action against responsible parties within 6 months of the determination. If not successful, the DEC will begin a remedial program for off-site impacts within one year of completion of enforcement action or the completion of the volunteer’s remedial program, whichever is later. State costs will be recovered from responsible parties.
27-1413 - Alternatives Analysis
- For track 1 sites, evaluate at least one remedial alternative.
- For all other sites develop at least 2 alternatives one of which would achieve a track 1 closure. DEC may require additional alternatives if a significant threat site.
- For significant threat sites, DEC selects the final alternative.
- For non-significant threat sites the applicant picks the alternative from the list developed and approved by the DEC. The DEC may require a track II alternative developed using the following factors: (a) the degree to which the remedy selection criteria would be satisfied using a track II cleanup, (b) the degree of impact a track II cleanup would have on the applicants ability to cleanup and redevelop the property, (c) the benefit to the environment to be realized with a track II cleanup, (d) the economic benefit to the State.
27-1415 – Remedial Program Requirements
- Remedies. All remedies shall be protective of human health and the environment including groundwater as per 17-0301, drinking water, surface water, air, indoor air, sensitive populations, ecological resources including fish and wildlife.
- Target risk is 1x10-6 for cancer risk and hazard index of 1 for non-cancer risk.
- Remedial Investigations. Remedial investigations fully characterize nature and extent of contamination at and emanating from the site.
- Emphasize data collection, monitoring and sampling for site geology, hydrogeology, groundwater flow, contaminant movement, response of groundwater to extraction, assessment of impacts on water supply wells, surface water quality, air and indoor air quality.
- Qualitative Exposure Assessments. Qualitative exposure assessments to determine route, intensity, frequency and duration of actual or potential exposure of humans, fish and wildlife to contaminants.
- Assessments must analyze nature and size of population exposed, and include reasonably anticipated future land use of the site and affected off-site areas and anticipated future groundwater use. Assessment will characterize exposure setting, identify current and future pathways, evaluate contaminant fate and transport. May require some off-site sampling.
- Selection of Remedy. Selection of remedial program will be based on SCGs, ARARs, overall protectiveness of public health and the environment, short term effectiveness, long term effectiveness and permanence, reduction in toxicity, mobility and volume. Hierarchy of remedial technologies is destruction, separation/treatment, solidification/chemical fixation, control and isolation. Implementability, cost effectiveness, community acceptance and land use are also considered.
- Land use. The current, intended, and reasonably anticipated future land use of the site and its surroundings shall be considered in the selection of the remedy for soil remediation, provided the department determines that there is reasonable certainty associated with such use. The anticipated future use of the site and its surroundings shall be documented by the applicant and determined by the department, taking into consideration factors including: current and historical use, recent development patterns, applicable zoning laws and maps, brownfield opportunity areas, comprehensive community master plans, waterfront revitalization plans, proximity to real property currently used for residential use, commercial, industrial, agricultural and recreational uses, any written and oral comments submitted by members of the public as part of public participation activities, environmental justice concerns, federal or state land use designations, population growth patterns and projections, accessibility to existing infrastructure, proximity of the site to important cultural resources including federal or state historic or heritage sites or Native American religious sites, natural resources including proximity to federal, state or local resources including waterways, wildlife refuges, wetlands, critical habitats of endangered or threatened species, vulnerability of groundwater to contamination that might migrate from the site, well head protection areas, recharge areas, floodplains, geography and geology, and current institutional controls applicable to the site.
- If the use proposed does not conform to the applicable zoning laws or maps or the reasonably anticipated future use as determined by the department, the department shall disapprove such use.
- Tracks. DEC and DOH have 12 months to promulgate regulations creating a multi-track approach to remediation. Groundwater use in Tracks 1,3 or 4 can be either restricted or unrestricted.
- Track 1. Unrestricted use without engineering or institutional controls. Shall meet contaminant specific RAOs for soil in table for unrestricted use. Volunteers may use engineering or institutional controls for long term after bulk of contaminants reach asymptotic levels and otherwise meet requirements of track 1.
- Track 2. May use site use restrictions and engineering and/or institutional controls in long run but must achieve contaminant specific RAOs as per the generic tables.
- Track 3. Shall achieve contaminant specific RAOs for soil which conform with the criteria used to develop generic tables for such objectives, but may use site specific data to determine such objectives.
- Track 4. Achieve clean up level protective for the sites present, intended or reasonably anticipated future residential, commercial or industrial use with restrictions relying on long term engineering or institutional controls. Regs will include provisions for risks in excess of 1x10-6 for cancer or hazard index of 1 for specific contaminants at a specific site without engineering or institutional controls only upon specific findings by the Commissioners of DEC and health that they will be protective of public health and the environment.
- Source removal and control measures. The following is the hierarchy of source removal and control measures ranked from the most preferable to the least. Remedial programs selected shall address sources in the following manner: (1) Removal and treatment. All free product, concentrated solid or semi-solid hazardous substances, DNAPL, LNAPL or grossly contaminated soil shall be removed and/or treated. IF removal and treatment is not feasible, it shall be removed or treated to the greatest extent feasible. (2) Containment. Any sources remaining after treatment and removal shall be contained to the greatest extent feasible. (3) Elimination of exposure. Exposure to any source remaining after 1 and 2 shall be eliminated through additional measures including but not limited to providing alternative water supplies, elimination of volatilization into buildings, etc. to the greatest extent possible. (4) Treatment of source at the point of exposure. Treatment of source at the point of exposure such as wellhead treatment or management of volatile contamination within buildings will be considered measures of last resort.
- Plume management. Plume stabilization will be evaluated for all remedies and further migration from the site shall be prevented to the extent feasible. If a participant is remediating the site, further migration will be prevented to the extent feasible.
- Soil Cleanup Objectives. The regulations shall contain three generic tables of contaminant-specific remedial action objectives (RAOs) for soil based on based on a site’s current, intended or future use, including (1) unrestricted, (2) commercial and (3) industrial. These objectives shall be protective of public health and the environment and the level of risk for specific contaminants listed in the table or developed by the applicant pursuant to Track 3 shall not exceed 1x10-6 for carcinogenic end points and a hazard index of 1 for non-carcinogenic end points. However, if background levels in rural soils exceed these levels, background levels may be used. In developing these tables the department shall consider: SCGs, the behaviors of children, protection of adjacent residential uses, contaminants which act through similar toxicological mechanisms or have the potential for additive and/or synergistic effects, exposure to the same contaminant from other routes, and the feasibility of achieving more stringent remedial action objectives based on existing State remedial programs particularly where data is limited for a specific contaminant. The department shall update the tables every 5 years. The initial draft tables shall be subject to public comment for 120 days and will have at least 3 public hearings.
- For track 4, exposed surface soils shall be remediated to contaminate specific RAOs which conform to the sites current, intended or reasonably anticipated future use for 2 feet for residential, and one foot for commercial or industrial use.
- Institutional and/or Engineering Controls. The department may approve the use of institutional and engineering controls if the work plan includes a complete description of any controls and/or use restrictions and the mechanisms to be used to implement, maintain, monitor and enforce such controls by the applicant and by any state or local government. The work plan must contain an evaluation of the reliability and viability of the long-term controls and analyze the long-term cost including state or local cost of implementation. The Department may require financial assurances to ensure the long-term implementation of the system.
- The owner of a brownfield site with institutional controls or engineering controls must submit an annual statement prepared by a PE or other expert acceptable to the department that the controls are unchanged from the previous certification and that nothing has occurred that would impair the ability of the controls to perform as designed.
- At non-significant threat sites where contaminants contravene drinking water standards at the site boundary, owner must also certify that no new information exists to indicate that the assumptions made in the qualitative exposure assessment are no longer valid. The Commissioner in consultation with the Commissioner of Health may terminate this requirement after public review.
- The department shall create a database to monitor and track all brownfield sites subject to this title. Data shall include at a minimum: site summary, owners name, location, status of site activities, contact number, and a copy of any environmental easement for the site. Sites will be added to the database upon execution of a brownfield site cleanup agreement. The database shall be searchable by the affected local governments and the public and must be available electronically and incorporated into the department’s GIS system.
- Presumptive Remedial Strategies. The Commissioner shall have the power to develop a list of presumptive remedial strategies that applicants may use to meet the requirements of Tracks 1-4. Remedies may be developed for specific site types and/or contaminants based on historical patterns of remedy selection and the department’s scientific and engineering evaluation of performance data on technology implementation.
- Use of Technologies. The department shall encourage the use of innovative technologies that will meet the RAOs. EFC shall encourage the development of these technologies.
27-1417 - Citizen Participation
- Citizen Participation Handbook. The department shall prepare a handbook to provide guidance to applicants in designing meaningful citizen participation plans by outlining opportunities and recommending methods for effective citizen involvement.
- Citizen Participation Plans. Plans should be designed to reflect the scope and scale of the proposed remedial program, local interest and history and other relevant factors. Plans should provide for opportunities for citizen involvement as early in the process as possible; activities should reflect the diversity of interests and perspectives in the community allowing for views to be heard and two-way dialog; full, timely, and accessible disclosure and sharing of information by the department including technical data and assumptions upon which the analyses are based.
- All citizen participation plans shall include at least the following elements: identification of the interested public and the development of a brownfield site contact list, identification of major issues of public concern, description and schedule of public participation activities, description and schedule of additional activities needed to address public concerns.
- Citizen Participation Requirements. The public may provide comments at any time during the remedial program. The applicant, in cooperation with the department, shall provide the following notices: a newspaper notice and notice to the brownfield site contact list that they are requesting to participate in the program (30 day comment period), notice to the brownfield site contact list that the investigation work plan is ready for public review and include a fact sheet describing the plan (30 day comment period), notice to the brownfield site contact list that the remedial investigation report is ready for public review and include a fact sheet describing the report, notice to the brownfield site contact list that the proposed remedial work plan is ready for review or before the department makes a determination that no remediation is required and include a fact sheet describing the plan or reason for the determination (45 day comment period). The department shall hold a public meeting if the site is found to constitute a significant threat or not if requested by the affected community. If the site does not pose a significant threat and a volunteer is addressing the site, the notice shall state that no off-site remediation will be required and their determination of no significant threat is open for public comment for 30 days. If the remedial work plan includes a Track II, III or IV remedy, the comment period shall apply to the approval of the alternatives analysis and the proposed remedy selected by the applicant. Information notices will be sent to the brownfield site contact list before remedial construction begins and before the department approves the final engineering report. The applicant will prepare a fact sheet on the report. Within 10 days of issuance of a certificate of completion at a site with institutional or engineering controls the applicant shall provide notice to the brownfield site contact list with a fact sheet describing the controls.
- Technical Assistance Grants. Within the limits of appropriations, the department is authorized to provide grants to not-for-profit 501(c)(3) corporations at significant threat sites if the community group demonstrates that its membership represents the interests of the community affected by the site. The
- Commissioner may direct any applicant who is a responsible party to provide such grants. Grants are to be used to obtain technical assistance in interpreting information on the hazards posed by hazardous substances at or emanating from the site and the development and implementation of a remedial program at the site. Grants may also be used to hire health and safety experts to advise affected residents on any health assessments and for the education of interested affected community members to enable them to more effectively participate in the remedy selection process. Grants may not be used for collection of field sampling data, political activity or lobbying legislative bodies.
- Grants may not exceed $50,000 and no matching contribution from the recipient is required.
27-1419 – Certification of Completion.
- The applicant shall submit a final engineering report prepared by a PE along with a certification that the remedial requirements of this title have been achieved. The final engineering report shall include at a minimum: a description of the remediation activities completed at the site; a certification that the data submitted to the department meets the remediation requirements set forth in the remedial work plan and have been or will be achieved in accordance with the timeframes established in the work plan; the boundaries of the real property subject to the brownfield site cleanup agreement; a description of the institutional controls employed at the site including mechanisms used to continually implement, maintain, monitor and enforce such controls by the applicant, their successors and assigns, and by the state or local government; certification that any use restrictions, institutional controls, engineering controls and/or operation and maintenance requirements applicable to the site are contained in a recorded environmental easement; certification that an operation and maintenance plan has been approved by the department for any engineering controls at the site; certification that any financial assurance mechanisms required by the department have been executed.
- Upon review of the final engineering report and satisfaction of the Commissioner that the remediation requirements have been met, the Commissioner shall issue a written certificate of completion which shall include information as determined by the department of taxation and finance, including but not limited to the brownfield site boundaries and the date of the brownfield site agreement. No certificate of completion shall be issued to an applicant identified by the administrator of the New York environmental protection and spill compensation fund as a person responsible for the cleanup and removal costs for the discharge of petroleum at or emanating from the brownfield site unless the applicant has resolved outstanding claims at the site pursuant to article 12 of the navigation law.
- Certificate can be modified or revoked if the applicant is not in compliance with the cleanup agreement, misrepresentation of material fact, or for good cause as determined by the department. The applicant may appeal the Commissioner’s determination by requesting a hearing within 30 days by certified mail.
27-1421 – Liability Limitation.
- Once a certificate of completion has been issued, the applicant shall not be liable to the state under any statutory or common law cause of action arising from the presence of any hazardous waste in, on or emanating from the site that precedes the effective date of the brownfield site cleanup agreement. Participants, however, will not receive a release for natural resource damages under federal law.
- The state shall reserve its rights on any further investigation or remediation deemed necessary due to: environmental contamination on, under or emanating from the site if the site is no longer protective of public health or the environment; non-compliance with the terms of the agreement; fraud; findings that a change in an environmental factor, standard or criteria now renders the site no longer protective of public health or the environment; a change in the use of the site without the necessary additional remediation renders the site no longer protective of public health or the environment (does not apply to a volunteer under track I); failure to make progress in the redevelopment of the site within three years of the issuance of the certificate of completion or unreasonable delays in site development by the applicant.
- The covenant not to sue extends to the applicant’s successors or assigns through acquisition of title to the site, or to the person who develops or occupies the site provided that the person adheres to the requirements of the cleanup agreement and certificate of completion. These covenants cannot be extended to a participant unless that person was party to the cleanup agreement. These covenants shall be recorded at the county where the site resides within 30 days of the issuance of the certificate of completion or within 30 days of acquiring title to the property.
- The provisions of this title do not affect any action or claim that the applicant has against a third party including claims for contribution or indemnification.
- Nothing in this section affects the liability of any person with respect to activities not included in the agreement or the work plans for the site. The department’s authority to maintain an action or proceeding against any person not subject to the agreement or remedial work plan.
- A person who has settled their liability under this subdivision has contribution protection regarding matters addressed in the order except for acts or omissions that have caused wrongful death or personal injury. This does not discharge any other participants from liability for the site but it does reduce their potential liability by the amount of the settlement.
- Nothing in this section shall affect the liability of any person with respect to civil actions brought by a party other than the state.
- The department shall have the authority to periodically inspect the site to be sure it complies with the agreement.
27-1423 – Payment of State Costs.
- The volunteer shall pay all state costs in negotiating and overseeing the implementation of the agreement. Participants shall also pay past costs incurred by the state at the site. Payments shall be made to the hazardous waste remedial fund.
27-1425 – Change of Use.
- Notification shall be made to the department 60 days before a change of use or alterations that constitute a change of use at the site.
- No activities shall occur at the site that are not consistent with the restrictions placed on the use of the property, will prevent or significantly interfere with a proposed, on-going or completed remedial program or expose public health or environment to a significantly increased threat of harm or damage. If the Commissioner determines that the proposed change is prohibited, he shall notify the applicant within 45 days of receiving the required notice and provide reasons for such determination.
- For purposes of this title, “ Change of use” shall include transfer of title of all or part of the site, erection of any structure, creation of a park or other public or private recreational facility, any activity that is likely to expose or disrupt hazardous waste or petroleum, activities that increase direct human exposure or actions that may significantly interfere with on-going or completed remedial programs at the site.
- A “ complete notice” means a notice that adequately describes the proposed physical alterations and how they may affect the remedial program, engineering or institutional controls at the site.
27-1429 – Permit waivers.
- The applicant shall be exempt from state and local permits at the site provided the activities are conducted in a manner that satisfies all substantive technical requirements applicable to like activities pursuant to a permit.
27-1431 – Access to Sites.
- The Commissioner is authorized to require any person permit a duly designated officer, employee, agent, consultant or contractor of the department, a municipal corporation or responsible party acting at the direction of the department (so authorized in writing by the Commissioner) to enter upon any property that has or may have been the site of disposal of hazardous waste and/or petroleum and/or areas near such site. Site access shall be for taking samples using methods, as may be necessary including soil borings and monitoring wells, or implementation of an investigation or remediation. Any method involving substantial disturbance of the ground surface shall require 10 days notice to the owner, operator and occupant of the site. If the Commissioner determines through written notice that such notice will not provide for the protection of public health or the environment, 2 days notice will be sufficient.
- The Commissioner may require any person furnish to the department information concerning current and past hazardous waste and/or petroleum generation, treatment, storage, disposal, and/or transportation activities of such person or other persons now or formerly under their control. If the person cannot comply in whole or in part, they shall describe all efforts made to comply. Any information shall be considered a “written instrument” as defined by the penal code.
- The Commissioner may require that a duly designated officer or employee of the department at all reasonable times have access to and copy all books, papers, documents and records relating to the current and past activities described above.
- The Commissioner may require by subpoena the production of all books, papers, documents and other records, and the rendition of testimony by deposition under oath of any person relating to the current and past hazardous waste and/or petroleum generation, treatment, storage, disposal and/or transportation activities of the person or other persons under the control of that person.
Title 36
Environmental Easements
71-3601 – Declaration of Policy and Statement of Purpose
- When a remediation project leaves residual contamination that is safe for the intended purpose but not all uses, or includes engineered structures that must be maintained or protected to be effective, an enforceable means of ensuring the performance of maintenance, monitoring, operational or future use is necessary. The environmental easement provides that vehicle for the state. It shall run with the land until extinguished and provide a description of all restrictions and engineering controls on the property. The easement shall be entered in the database created under 27-1415. It provides representatives of the state to enter the property at all reasonable times to assure compliance with the restrictions. It shall be filed with the county.
71-3607 – Coordination with Local Governments
- When the department is granted an environmental easement, it shall copy each affected local government. If a local government receives an application for a permit on the property for building or other changes, it shall forward the application to the department for review of compliance with the easement restrictions. No permit shall be issued without the concurrence of the department.
Part B
Title 31
Groundwater Protection and Remediation Program
15-3105 – Purpose
- The department shall develop a strategy to address contaminated groundwater and implement a program to remediate and manage groundwater resources to insure long-term sustainability.
15-3107 – Groundwater Information Management
- Information of groundwater shall be included in a GIS system maintained by the department to track remedial programs.
15-3109 – Groundwater Remediation Strategy.
- Within 3 years the department shall publish a strategy to address long-term remediation of groundwater contamination including future degradation from contaminated sites. It will recognize that short and long-term strategies may be necessary, include long-term activities at title 14 sites that pose a significant threat or other state activities pursuant to other provisions of this chapter.
- Prioritization criteria shall include: current or future use of groundwater as drinking water; aquifers that may be impacted by contamination; non-potable purposes including recreational use, institutional use and irrigation; community needs; feasibility of remediation; and protection of natural resources.
- While the current use of groundwater as drinking water may be considered, the absence of such use shall not exclude the need for remediation.
- The initial draft will have 120-day public review period. Subsequent updates will have 60-day review periods.
15-3111 – Rules and Regulations.
- The department shall promulgate rules and regulations to carry out the purposes of this title.
Part C
Geographic Information System
3-0315 – The department shall create or modify a geographic information system to incorporate information from remediation programs and shall include groundwater data from the DOH water assessment program, annual water supply statements and any other source of groundwater and soil contamination information available to the department including USGS data.
Part D
Environmental Restoration Program Changes
57-0105 – Gives priority for funding to projects in Brownfield Opportunity Areas (BOA).
57-0502 – Definitions.
- Defines Community Based Organization (CBO) as a 501(c)(3) corporation promoting reuse of brownfield sites within a specified geographic area where the CBO is located. Twenty five percent of the Board of Directors must live in the area. The CBO must represent a community with a demonstrated financial need.
- The definition of “cost” does not include the requirement to reduce the cost of an approved project by any federal or state funds received from other sources for the project.
56-0503 – State Assistance.
- The amounts of state assistance payments are increased from 75% to 90%. For areas outside the real property of the project, the funding can be 100%.
- If responsible party payments are received during the project, the state assistance is recalculated to reflect the payments and the municipality will reimburse the difference into the environmental restoration project account of the hazardous waste remedial fund.
- If payments from a responsible party or from the disposition of the property exceed the total cost born by the municipality, including back taxes and the municipal share of the restoration project, the remainder will be reimbursed to the state account.
- The municipality will implement a public participation plan during the project. If remediation is not necessary based on the investigation report, the public will be given notice and an opportunity to review the information.
56-0505 – Criteria for eligibility for state assistance.
- Benefit to the environment; economic benefit to the state; opportunity for public recreational purposes; property in a BOA; other funding source availability. Higher priority will be given to projects with no other funding opportunities from the state or responsible parties.
- Site cannot be a class 1 or 2 site.
- Site can be sold to a responsible party after remediation, but all costs must be reimbursed to the state and municipality.
- If the site is sold before completion of the restoration project, the municipality is responsible for seeing that the restoration is completed.
56-0508 – Foreclosure of a tax lien.
- A taxing district may initiate foreclosure on a tax lien on a site for the sole purpose of taking temporary ownership of the property to conduct an environmental restoration investigation project. If more than one taxing district apply for foreclosure for this purpose, priority is given to the most local district first. The court order will stay any foreclosure action on the parcel until the investigation project is completed and the final report is filed with the court. Temporary ownership under this provision will qualify the taxing district to apply for state assistance for the investigation project, but not as a responsible party. All costs associated with the investigation project shall be added to the taxes owed to the taxing district and to its tax lien.
56-0509 – Liability.
- All existing liability relief provisions remain in law on environmental restoration projects. Reopeners include failing to implement the project to the departments satisfaction or complying with the terms and conditions of the contract; fraud in meeting the cleanup levels; causing a release or threat of release of any hazardous substance at the property after the effective date of the contract; change of use of the property requiring a lower level of residual contamination unless remedial activities are taken to meet the same standard for protection of public health and the environment pursuant to 27-1313.
56-0511 – Change of Use.
- Change of use includes the transfer of title of a property subject to an environmental restoration project, the erection of any structure, creation of a park or other public or private recreational facilities, or any other activity that is likely to disrupt or expose hazardous substances or increase direct human exposure, or any other conduct that may tend to significantly interfere with an on-going or completed restoration project.
56-0513 and 56-0515 – Permit waivers and access to sites.
- Two new sections are added to be consistent with the permit wavier and access to sites and information provisions of Title 13 and the new Title 14 of Article 27 of the Environmental Conservation Law.
316-b – Real Property Law.
- The real property law is amended to provide for the recording of the information required at the municipal and county level of government under Titles 13 and 14 of Article 27 of the Environmental Conservation Law as modified by this legislation.
Part E
Modifications to Article 27, Title 13
27-1305 – Reports by the department; Registry of sites.
- Changes “Report to the legislature” to the updated registry of sites.
- Allows for the deferral of listing a site as a class 1 or 2 site if the department is actively engaged in negotiating a brownfields agreement for the site or the site is already under an agreement.
27-1309 – Access to sites.
- Includes site access provisions provided in Title 14.
27-1316 – Citizen Technical Assistance Grants.
- The Commissioner is authorized to provide or order a person under an order to provide Technical Assistance Grants (TAG) of up to $50,000 to CBOs who may be impacted by the site. TAGs can be used to obtain technical assistance in interpreting the information with regard to the hazards at the site or emanating from the site; review of the site remedial program; advise affected residents on any health assessment; or training for community members to enable them to more effectively participate in the remedy selection process. Grants may not be used for sampling, political activities or lobbying legislative bodies. No matching contribution is required from the recipient.
27-1318 – Institutional and engineering controls.
- This is a new section that inserts institutional and engineering controls and environmental easements consistent with Title 14.
27-1323 – Liability exemptions and defenses.
- Lender exemption. Lender is exempt from liability as an owner or operator if lender holds ownership to protect their security interest and the lender did not participate in the management of the site. The lender must take actions to sell or dispose of the property at the earliest practical time, taking into account market conditions and regulatory and legal requirements.
- Municipal exemption. No municipal corporation will incur liability for the site as an owner or operator if acquired involuntarily and retained the site without participating in the development of the site. This exemption does not apply if the municipality contributed to the release of hazardous waste at the site. The DEC must be notified of any release of hazardous waste within 10 days of obtaining knowledge of the release unless a shorter notification period is required under any other provision of law. Failure to notify the department will result in the loss of the liability exemption.
- Fiduciary Liability cap. Liability on the part of a fiduciary shall not exceed the assets held in the fiduciary capacity if such person is not liable independently of the person’s ownership as a fiduciary or actions taken in a fiduciary capacity including the fiduciary’s negligently causing or contributing to the release or threatened release of hazardous waste at the site.
- Affirmative defenses. There will be no liability under this title for a person that can establish that a significant threat attributable to hazardous waste at an inactive hazardous waste disposal site was caused solely by an act of God; an act of war; or an act or omission of a third party other than an employee or agent of such person, or than one whose act or omission occurs in connection with a contractual relationship existing directly or indirectly with such person if that person establishes that they exercised due care with the hazardous waste concerned and took precautions against foreseeable acts or omissions of the third party.
- To establish that a person had no reason to know of prior hazardous waste disposal before acquiring the site they must demonstrate to the court that on or before the date of acquisition they carried out all appropriate inquiries into the previous ownership and use of the site and the person took reasonable steps to stop any continuing release; prevent any threatened future release; and prevent or limit any human, environmental, or natural resource exposure to any previously released hazardous waste.
- Within one year the Commissioner shall promulgate regulations to establish standards and practices for determining actual or potential hazardous waste contamination at sites.
- For property purchased before May 31, 1997, in making a determination with respect to a person’s knowledge of prior contamination at the property a court shall take into account: any specialized knowledge or experience on the part of the purchaser; the relationship of the purchase price to the value of the property if the property were not contaminated; commonly known information about the property; and the ability of the person to detect contamination by appropriate inspection. For property purchased after May 31, 1997, and until regulations are promulgated, ASTM “Standard E1527-97” entitled ‘Standard Practice for Environmental Site Assessment: Phase I Environmental Site Assessment Process’ shall be used to determine if contamination exists at the site. In the case of property to be used for residential purposes when purchased by a nongovernmental or noncommercial entity, a site inspection and title search that reveals no basis for further investigation shall satisfy this section.
- Section 1389-e of the public health law is repealed and section 27-1323 of the environmental conservation law is substituted for consistency between the programs.
Subdivisions 24, 25 and 26 of section 1281 of the public authorities law and section 1389-a of the public health law are amended to be consistent with section 27-1301 of the environmental conservation law definitions of hazardous waste, inactive hazardous waste disposal site, and inactive hazardous waste disposal site remedial program.
Part F
Modifications to general municipal law to designate Brownfield Opportunity Areas and apply for State assistance
970-r – State assistance for pre-nomination study Brownfield Opportunity Areas (BOA)
- Funding up to 90% available to municipalities, CBOs or combination of the two to prepare a pre-nomination study for a BOA. Activities eligible include the assembly and development of basic information about: the borders of the proposed BOA; number and size of brownfield sites; current and future uses of properties; current and future uses of groundwater; known data of environmental conditions; ownership of property in the BOA; preliminary descriptions of remediation strategies, reuse opportunities, necessary infrastructure improvements and other measures needed to stimulate investment and promote revitalization.
- Funding preferences will be given to applications that demonstrate one or more of the following: include a municipality and a CBO; areas with concentration of brownfields; areas which show support from a CBO or municipality; show areas with indicators of economic stress including low resident incomes, high unemployment, high commercial vacancy rates and distressed property values; sites presenting strategic opportunities to stimulate economic development, community revitalization or the siting of public amenities.
- The Commissioner receiving applications from CBOs without the municipalities as partners will ask the municipalities to review the application and indicate support or lack of support. This statement will be considered part of the application.
- Each application will be submitted on a form prescribed by the department and will include at a minimum: a statement of the rationale or relationship between the proposed assistance and the criteria for the evaluation and ranking of applications; processes to include local participation in the application preparation; the processes to be carried out with the state assistance including the goals and budget for the effort, work plan and timeline, and the community participation process; manner and extent of inclusion of public or governmental agencies in the process; other planning and development initiatives proposed or in progress in the proposed BOA; where a CBO is the applicant or a partner in the application, a description of the relationship of the CBO to the area subject to the application, its financial and institutional accountability, its experience in conducting and completing planning initiatives and in working with local government associated with the BOA.
- Prior to making an award, the Commissioner shall notify the temporary president of the senate and speaker of the assembly.
- Following notification of award to the applicant and prior to disbursement of funds, a contract shall be executed between the department and the applicant(s). Terms and conditions will established by the Commissioner.
970-r – State assistance for nominations to designate BOAs.
- Financial assistance for nomination of a BOA shall not exceed 90%.
- Application shall include: an indication of support from owners of brownfield sites in the proposed BOA; all residents and owners in the BOA shall receive notice of the proposed action in a format prescribed by the Commissioner; a demonstration that the views of the residents of the BOA, the local officials and the state, and the local organizations representing the residents of the area have been solicited and considered in the design of the proposed plans for the BOA.
- Activities eligible for assistance include the identification, preparation, creation, development and assembly of information and elements to be included in the nomination including at a minimum: borders of the proposed BOA; location of each known or suspected brownfield site; identification of strategic sites; potential developments anticipated at sites by either the current or prospective owners of sites; local regulatory or legislative action required to implement the redevelopment plan; priorities for public or private investment for infrastructure, open space, economic development, housing, or community facilities; mapping of current and anticipated uses of the properties and groundwater in the area; existing assessments of individual brownfield sites, and where the consent of the site owner has been obtained, the need for conducting on-site assessments; ownership of properties in the area; description of possible remediation strategies, brownfield redevelopment, needed infrastructure improvements and other public and private measures needed to stimulate investment, promote revitalization and enhance community health and environmental conditions; the goals nd objectives, both short and long term, for the economic revitalization; the publicly controlled and other developable lands that could be made available for development.
- Funding preference will be based on the same criteria as the pre-nomination criteria.
- Information to be included in an application for state assistance shall include, at a minimum, the following: a statement of the rationale or relationship between the proposed assistance and the criteria for evaluation and ranking of applications; the processes for local participation in the development of the application; work to be carried out with assistance, goals, budget, and community participation process; manner and extent of involvement of public or governmental agencies in the process; other planning and development initiatives proposed or in progress in the proposed BOA; a description of the relationship between the CBO and the BOA area, its financial and institutional accountability, experience in conducting and completing planning initiatives and in working with local government.
- Prior to making an award, the Commissioner shall notify the temporary president of the senate and speaker of the assembly.
- Following the notification to the applicant that assistance has been awarded and prior to disbursement of funds, a contract shall be executed between the department and the applicant(s) in a form prescribed by the Commissioner.
970-r – Community participation activities in application for BOA designation.
- Any application for pre-nomination or nomination for designation as a BOA shall demonstrate the following community participation activities: identification of interested public and preparation of a contact list; identification of major issues of public concern; provisions to access the draft and final applications; public notice and newspaper notice of intent to undertake a pre-nomination process or prepare a BOA plan and the availability of the application.
- Applications shall provide the following minimum activities: a comment period of at least 30 days on a draft application; a public meeting on a BOA draft application.
970-r – Designation of a Brownfield Opportunity Area.
- If in the opinion of the Commissioner, in consultation with the Secretary of State, the nomination is consistent with the provisions of this section it will be designated as a BOA. If not consistent, the Commissioner will notify the applicant making recommendations on modifications to the application to make it consistent.
- Priority and preference. The designation as a BOA is intended to be a planning tool and shall not impose any new obligation on any property or property owner. Projects in BOAs shall receive priority and preference when considered for financial assistance under the environmental bond acts (articles 54 and 56 of the ECL). To the extent authorized by law, these project may receive preference for assistance under other state, federal or local law.
- Amendments to a BOA shall be applied for in the same manner and using the same criteria as the nomination process for a BOA.
970-r – State assistance for brownfield site assessments.
- The Commissioner, in consultation with the Secretary of State, is authorized to provide financial assistance to municipalities, CBOs, or combination thereof for brownfield site assessments in BOAs. Funding shall not exceed 90% of the costs for the assessments.
- A municipality or a volunteer must own Brownfield sites eligible for assistance.
- Activities eligible for funding include: test of properties to determine the nature and extent of contamination in soil and groundwater, environmental assessments, development of proposed remedial strategies, and other activities deemed appropriate by the Commissioner.
- Funding preferences will be given to applications using the same criteria as those for pre-nomination of BOAs.
- Prior to making an award, the Commissioner shall notify the temporary president of the senate and the speaker of the assembly.
- Following notification of award to the applicant and prior to disbursement of funds, a contract shall be executed between the department and the applicant(s). Should the applicant receive payments from the responsible party at a site, payments attributable to expenses paid by the award shall be paid to the department after the applicants expenses for project costs have been paid.
- Financial assistance pursuant to an executed contract may include an advance payment of up to 25% of the contract amount.
Part H
Amendments to the tax law
New Section 21
Brownfield Redevelopment tax credit
Amendments to tax law for investment credit and environmental liability insurance
- Amended sections are article 9 (Utility tax), article 9-A (Corporate Franchise Tax), article 22 (Personal Income Tax), article 32 (Bank Tax), article 33 (Insurance Tax).
- Definitions. “Site preparation costs” are costs properly chargeable to a capital account which are paid or incurred in connection with a site’s qualification for a remediation certificate and all other preparation costs incurred for preparing a site for the erection of a building or to establish a site as usable for its industrial, commercial (including the commercial development of residential housing), recreational or conservation purpose. It includes, but is not limited to, excavation, temporary power, scaffolding, demolition, fencing and security facilities. “Qualified tangible property” is property that is depreciable, has a useful life of 4 years or more, has been acquired by purchase as defined in section 179(d) of the internal revenue code, is located on a qualified site, is principally used by the taxpayer for industrial, commercial, recreational or environmental conservation purposes and is placed in service within 3 years following the issuance of the remediation certificate. “On-site groundwater remediation costs” are capital costs paid for the remediation of on-site groundwater contamination and incurred to implement a requirement of the remediation work plan. “ Environmental Zones” (EN-Zones) are areas designated by the commissioner of economic development which are census tracts and block numbering areas which, as of the two thousand census, have a poverty rate of at least 20% for the year to which the data relate and have an unemployment rate of at least 1.25 times the statewide unemployment rate for the year to which the data relate.
- Tax credit is applicable in the year a certificate of completion is received from the department and five years after for site preparation costs and on-site groundwater remediation costs. Allowable tangible property cost credit is applicable in the year a certificate of completion is received and up to ten years thereafter.
- If the tangible property is leased, no credit is available if leased to a responsible party or former “innocent owner” unless the former owner is certified by the Commissioner to be an innocent owner.
- Applicable percentages for tax credit. Applicable percentages for site preparation, tangible property and groundwater remediation is 12% of the costs incurred under utility, corporate franchise, bank and insurance taxes and 10% on personal income taxes. If half the site or greater is within an Environmental Zone (EN zone), percentages are increased by 8%. If the site has been remediated to a Track I level, an additional 2% may be credited.
- Only costs incurred after the date of the execution of the brownfield site agreement are eligible to be included in tax credit. Tax credits are exclusive of any federal, state or local grants received by the taxpayer used for these activities. If the tax credit taken makes the payment less than the minimum corporate tax for the year, the remainder of the credit may be taken as a tax refund.
- Real property tax credit. A developer of a qualified site is allowed a credit on state taxes of 25% of the product of the employment number factor times the real property taxes paid. The employment number factor is calculated according to the following chart and includes full time employees of lessees:
25 < 50 ………. 0.25
50 < 75 ………. 0.50
75 < 100 ……... 0.75
100+ …………. 1.00
The number of employees is the average for the year less general executive officers of the developer and lessees. “Eligible property taxes” includes payment in lieu of taxes. If the amount of credit reduces taxes owed to below the minimum tax level, the difference can be taken as credit or as a refund.
New Section 23 of tax law
Environmental remediation insurance credit
- 50% of the premiums paid up to a maximum of $30,000 for environmental remediation insurance at a qualified site may be taken in the year of issuance of the certificate of completion for the site. Costs eligible for credit must be incurred after the execution of the brownfields site agreement. The type of insurance eligible is described in section 3447 of the insurance law. Coverage includes cost of on-site cleanup of pre-existing pollution conditions from the insured property which are outside the scope of the remedial work plan, coverage for third party claims for on-site bodily injury and property damage from pre-existing pollution conditions outside the scope of the remedial work plan, coverage which caps cleanup costs relating to the remedial work plan and coverage for the cost of state re-openers pursuant to 27-1419 or modifications to the to the remedial work plan to fill any gap in any state issued covenant not to sue. These credits are applicable for remediation certificates issued before March 31, 2015.
Part I
Amendments to the ECL for Fee adjustments
ECL 17-1009 – Fees on petroleum bulk storage facilities
- Fees shall not exceed $500 for a 5-year registration. Fee for combined storage capacity between 1,000 and 2,000 gallons is $100 per facility; 2,000 to 5,000 gallons is $300 per facility; 5,000 to 400,000 gallons is $500 per facility.
72-0201 – Fee disposition.
- All fees collected shall be deposited in the industry fee transfer account of the hazardous waste remedial fund. If a penalty or interest is collected, one half of the penalty or interest will be deposited in this account.
72-0403 – Hazardous waste program surcharges.
- Beginning April 1, 2003, generators of hazardous waste shall annually a fee as follows:
o $4,000 for generation => 15 tons per year (TPY) and =<25 TPY;
o $9,000 for generation > 25 TPY and =<50 TPY;
o $14,000 for generation > 50 TPY and =<75 TPY;
o $19,000 for generation > 75 TPY and =< 100 TPY;
o $24,000 for generation > 100 TPY and =< 500 TPY;
o $80,000 for generation >500 TPY and =< 1,000 TPY;
o $85,000 for generation > 1,000 TPY and =< 2,000 TPY;
o $110,000 for generation > 2,000 TPY and =< 3,000 TPY;
o $135,000 for generation > 3,000 TPY and =< 5,000 TPY;
o $160,000 for generation > 5,000 TPY and =< 10,000 TPY;
o $360,000 for generation > 10,000 TPY;
o $6,000 for generation of => 15 TPY of hazardous wastewater in addition to fees for generation of hazardous waste.
- If a generator recycles more than 90% of the amount of hazardous waste or hazardous wastewater it produces in a calendar year, fees under this section will be based on the net amount of non-recycled waste and not the gross amount produced.
Section 97-b of the state finance law, chapter 413 of the laws of 1996, chapter 512 of the laws of 1986 and chapter 9 of the laws of 1994 are amended to establish a non-lapsing revolving fund known as the “ hazardous waste remedial fund”.
- The fund shall consist of a site investigation and construction account, an industrial fee transfer account, environmental restoration project account, hazardous waste cleanup account and a hazardous waste remediation oversight and assistance account.
- Moneys in the fund, except for the industry fee transfer account, shall be available to the departments of environmental conservation, health and law for the following purposes:
o Inactive hazardous waste disposal site remedial programs pursuant to 27-1313 of the ECL and 89-b of the public health law;
o Cleaning up or restoring to its “original state” any area where hazardous wastes were disposed of or possessed unlawfully. “Original state” shall mean the reasonably ascertainable condition of the property immediately prior to the unlawful disposal or, if it is impractical to determine such condition, then the reasonable environmentally sound condition of the area;
o Inactive hazardous waste site identification, classification, and investigation actions necessary to develop the state inactive hazardous waste disposal site remedial plan;
o Financing the non-federal share of the cost of cleanup and site remediation activities, post-closure operation and maintenance costs pursuant to CERCLA.
o Emergency response actions involving hazardous wastes, except those covered under the New York State emergency protection and spill compensation fund;
o Undertake remedial measures as deemed necessary at sites receiving final approval by the department under ECL 56-5 where the conditions at the site are not sufficiently protective of human health for its reasonably anticipated use or due to information received after final certification of the site by the department. Use of these funds are limited to those moneys in excess of $10 million in that account;
o Moneys in the hazardous waste remediation oversight and assistance account can be used to pay costs incurred by the state in negotiating and overseeing the implementation of brownfield site cleanup agreements and conducting remediation under title 14 of article 27 of the ECL, to provide state assistance under 970-r of the general municipal law, provide non-bondable costs associated with hazardous waste remediation projects and provide technical assistance grants;
- The industrial fee account provides for a 50/50 sharing between the state and industry of the cost of debt service for bonds and notes issued to finance hazardous waste remedial work not attributable to a responsible party, a municipality or the federal government. Fifty percent comes from the general fund and fifty percent from fees and surcharges from industry.
Appropriations for solid and hazardous waste management
$135million is authorized annually for the program. For hazardous waste purposes distributed as follows:
- $120,000,000 for hazardous waste purposes under title 13 of article 27 of the ECL, 97-b of the state finance law and section 27-1411 of the ECL.
o Personal service……………………..$15,700,000
o Non-personal service ………………... 966,325
o Fringe benefits ……………………..... 5,689,680
o Department of health ……………........ 5,880,163
o Department of law ………………....... 763,832
o Remediation projects ……………........91,000,000
Total ……………………………… $120,000,000
- $15,000,000 for distribution for non-bondable services and expenses associated with brownfield cleanup and hazardous waste remediation projects, grants under 970-r of the general municipal law, technical assistance grants under title 13 and 14 of article 27 of the ECL and negotiating and overseeing brownfield cleanup agreements under title 14 of article 27 of the ECL. Use of these funds is pursuant to a memorandum of understanding to be executed by the Governor, the temporary president of the senate and the speaker of the assembly.
- Bonding for the program will be authorized through the Environmental facilities Corporation.
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