STATE OF NEW YORK ________________________________________________________________________ 8636 IN SENATE May 10, 2018 ___________ Introduced by Sen. MARCELLINO -- read twice and ordered printed, and when printed to be committed to the Committee on Environmental Conser- vation AN ACT to amend the environmental conservation law and the tax law, in relation to the calculation of the brownfield site preparation credit for certain taxpayers The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Subdivision 3 of section 27-1419 of the environmental 2 conservation law, as amended by section 10 of part BB of chapter 56 of 3 the laws of 2015, is amended to read as follows: 4 3. Upon receipt of the final engineering report, the department shall 5 review such report and the data submitted pursuant to the brownfield 6 site cleanup agreement as well as any other relevant information regard- 7 ing the brownfield site. Upon satisfaction of the commissioner that the 8 remediation requirements set forth in this title have been or will be 9 achieved in accordance with the timeframes, if any, established in the 10 remedial work plan, the commissioner shall issue a written approval of 11 the final engineering report and a certificate of completion. The costs 12 of activities set forth in the final engineering report, and the costs 13 of activities set forth in all work plans approved under this title, 14 shall be used by the department of taxation and finance for purposes of 15 calculating the site preparation credit component under section twenty- 16 one of the tax law. The certificate shall include such information as 17 determined by the department of taxation and finance, including but not 18 limited to the brownfield site boundaries included in the final engi- 19 neering report, the date of the brownfield site cleanup agreement, and 20 the applicable percentages available as of the date of the certificate 21 of completion for that site for purposes of section twenty-one of the 22 tax law. For those sites for which the department has issued a notice to 23 the applicant on or after July first, two thousand fifteen or the date 24 of publication in the state register of proposed regulations defining 25 "underutilized" as provided in subdivision thirty of section 27-1405 of 26 this title, whichever shall be later, that its request for participation EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD15844-02-8S. 8636 2 1 has been accepted under subdivision six of section 27-1407 of this 2 title, the tangible property credit component of the brownfield redevel- 3 opment tax credit pursuant to paragraph three of subdivision (a) of 4 section twenty-one of the tax law shall only be available to the taxpay- 5 er if the criteria for receiving such tax component have been met. For 6 those sites for which the department has issued a notice to the taxpayer 7 after June twenty-third, two thousand eight that its request for partic- 8 ipation has been accepted under subdivision six of section 27-1407 of 9 this title, the applicable percentage for the site preparation credit 10 component pursuant to paragraph two of subdivision (a) of section twen- 11 ty-one of the tax law, and the on-site groundwater remediation credit 12 component pursuant to paragraph four of subdivision (a) of section twen- 13 ty-one of the tax law shall be based on the level of cleanup achieved 14 pursuant to subdivision four of section 27-1415 of this title and the 15 level of cleanup of soils to contaminant-specific soil cleanup objec- 16 tives promulgated pursuant to subdivision six of section 27-1415 of this 17 title, up to a maximum of fifty percent, as follows: 18 (a) soil cleanup for unrestricted use, the protection of groundwater 19 or the protection of ecological resources, the applicable percentage 20 shall be fifty percent; 21 (b) soil cleanup for residential use, the applicable percentage shall 22 be forty percent, except for Track 4 which shall be twenty-eight 23 percent; 24 (c) soil cleanup for commercial use, the applicable percentage shall 25 be thirty-three percent, except for Track 4 which shall be twenty-five 26 percent; 27 (d) soil cleanup for industrial use, the applicable percentage shall 28 be twenty-seven percent, except for Track 4 which shall be twenty-two 29 percent. 30 § 2. Paragraph 2 of subdivision (b) of section 21 of the tax law, as 31 amended by section 23 of part BB of chapter 56 of the laws of 2015, is 32 amended to read as follows: 33 (2) (A) Site preparation costs. The term "site preparation costs" 34 shall mean all amounts properly chargeable to a capital account, which 35 are paid or incurred which are necessary to implement a site's investi- 36 gation, remediation, or qualification for a certificate of completion, 37 and shall include costs of: excavation; demolition; activities undertak- 38 en under the oversight of the department of labor or in accordance with 39 standards established by the department of health to remediate and 40 dispose of regulated materials including asbestos, lead or polychlori- 41 nated biphenyls; environmental consulting; engineering; legal costs; 42 transportation, disposal, treatment or containment of contaminated soil; 43 remediation measures taken to address contaminated soil vapor; cover 44 systems consistent with applicable regulations; physical support of 45 excavation; dewatering and other work to facilitate or enable remedi- 46 ation activities; sheeting, shoring, and other engineering controls 47 required to prevent off-site migration of contamination from the quali- 48 fied site or migrating onto the qualified site; and the costs of fenc- 49 ing, temporary electric wiring, scaffolding, and security facilities 50 until such time as the certificate of completion has been issued. Site 51 preparation shall include all costs paid or incurred within sixty months 52 after the last day of the tax year in which the certificate of 53 completion is issued that are necessary for compliance with the certif- 54 icate of completion or subsequent modifications thereof, or the remedial 55 program defined in such certificate of completion including but not 56 limited to institutional controls, engineering controls, an approvedS. 8636 3 1 site management plan, and an environmental easement with respect to the 2 qualified site. Site preparation cost shall not include the costs of 3 foundation systems that exceed the cover system requirements in the 4 regulations applicable to the qualified site. 5 (B) With respect to a taxpayer to whom a certificate of completion was 6 issued as provided under subdivision five of section 27-1419 of the 7 environmental conservation law after July twenty-first, two thousand 8 eight but prior to the effective date of section twenty-three of part BB 9 of chapter fifty-six of the laws of two thousand fifteen, but who has 10 yet to be granted the site preparation credit from the department for 11 such site as provided in this section, site preparation cost shall not 12 include the costs of foundation systems that exceed the cover system 13 requirements in the final engineering report and work plans for the 14 qualified site. 15 § 3. This act shall take effect immediately. Effective immediately, 16 the addition, amendment and/or repeal of any rule or regulation neces- 17 sary for the implementation of this act on its effective date are 18 authorized and directed to be made and completed on or before such 19 effective date.