STATE OF NEW YORK
________________________________________________________________________
8636--A
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 -- committee discharged, bill amended, ordered reprinted as
amended and recommitted to said committee
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
12 certificate shall include such information as determined by the depart-
13 ment of taxation and finance, including but not limited to the brown-
14 field site boundaries included in the final engineering report, the date
15 of the brownfield site cleanup agreement, and the applicable percentages
16 available as of the date of the certificate of completion for that site
17 for purposes of section twenty-one of the tax law. For those sites for
18 which the department has issued a notice to the applicant on or after
19 July first, two thousand fifteen or the date of publication in the state
20 register of proposed regulations defining "underutilized" as provided in
21 subdivision thirty of section 27-1405 of this title, whichever shall be
22 later, that its request for participation has been accepted under subdi-
23 vision six of section 27-1407 of this title, the tangible property cred-
24 it component of the brownfield redevelopment tax credit pursuant to
25 paragraph three of subdivision (a) of section twenty-one of the tax law
26 shall only be available to the taxpayer if the criteria for receiving
27 such tax component have been met. For those sites for which the depart-
28 ment has issued a notice to the taxpayer after June twenty-third, two
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD15844-03-8
S. 8636--A 2
1 thousand eight that its request for participation has been accepted
2 under subdivision six of section 27-1407 of this title, the applicable
3 percentage for the site preparation credit component pursuant to para-
4 graph two of subdivision (a) of section twenty-one of the tax law, and
5 the on-site groundwater remediation credit component pursuant to para-
6 graph four of subdivision (a) of section twenty-one of the tax law shall
7 be based on the level of cleanup achieved pursuant to subdivision four
8 of section 27-1415 of this title and the level of cleanup of soils to
9 contaminant-specific soil cleanup objectives promulgated pursuant to
10 subdivision six of section 27-1415 of this title, up to a maximum of
11 fifty percent, as follows:
12 (a) soil cleanup for unrestricted use, the protection of groundwater
13 or the protection of ecological resources, the applicable percentage
14 shall be fifty percent;
15 (b) soil cleanup for residential use, the applicable percentage shall
16 be forty percent, except for Track 4 which shall be twenty-eight
17 percent;
18 (c) soil cleanup for commercial use, the applicable percentage shall
19 be thirty-three percent, except for Track 4 which shall be twenty-five
20 percent;
21 (d) soil cleanup for industrial use, the applicable percentage shall
22 be twenty-seven percent, except for Track 4 which shall be twenty-two
23 percent.
24 § 2. Paragraph 2 of subdivision (b) of section 21 of the tax law, as
25 amended by section 23 of part BB of chapter 56 of the laws of 2015, is
26 amended to read as follows:
27 (2) (A) Site preparation costs. The term "site preparation costs"
28 shall mean all amounts properly chargeable to a capital account, which
29 are paid or incurred which are necessary to implement a site's investi-
30 gation, remediation, or qualification for a certificate of completion,
31 and shall include costs of: excavation; demolition; activities undertak-
32 en under the oversight of the department of labor or in accordance with
33 standards established by the department of health to remediate and
34 dispose of regulated materials including asbestos, lead or polychlori-
35 nated biphenyls; environmental consulting; engineering; legal costs;
36 transportation, disposal, treatment or containment of contaminated soil;
37 remediation measures taken to address contaminated soil vapor; cover
38 systems consistent with applicable regulations; physical support of
39 excavation; dewatering and other work to facilitate or enable remedi-
40 ation activities; sheeting, shoring, and other engineering controls
41 required to prevent off-site migration of contamination from the quali-
42 fied site or migrating onto the qualified site; [and] the costs of fenc-
43 ing, temporary electric wiring, scaffolding, and security facilities
44 until such time as the certificate of completion has been issued; and
45 the cost of activities set forth in all work plans and in the final
46 engineering report approved under title fourteen of article twenty-seven
47 of the environmental conservation law. Site preparation shall include
48 all costs paid or incurred within sixty months after the last day of the
49 tax year in which the certificate of completion is issued that are
50 necessary for compliance with the certificate of completion or subse-
51 quent modifications thereof, or the remedial program defined in such
52 certificate of completion including but not limited to institutional
53 controls, engineering controls, an approved site management plan, and an
54 environmental easement with respect to the qualified site. Site prepara-
55 tion cost shall [not] include the costs of foundation systems that are
56 part of the site's engineering controls described in approved work plans
S. 8636--A 3
1 or a final engineering report under title fourteen of article twenty-
2 seven of the environmental conservation law, but only to the extent that
3 such foundation system costs do not exceed costs for the cover system
4 requirements which shall be defined in the regulations applicable to the
5 qualified site.
6 (B) With respect to any site for which (1) the department of environ-
7 mental conservation has issued a notice before July first, two thousand
8 fifteen that a request for participation with respect to the qualified
9 site has been accepted under subdivision six of section 27-1407 of the
10 environmental conservation law, and (2) the taxpayer's claim for the
11 site preparation credit component determined with respect to the site's
12 qualification for the certificate of completion has not been finally
13 determined: site preparation cost shall include the costs of foundation
14 systems that are part of the site's engineering controls described in
15 approved work plans or a final engineering report under title fourteen
16 of article twenty-seven of the environmental conservation law, which are
17 minimum cover system costs for at least one foot thickness of low perme-
18 able material such as concrete or asphalt at sites where the remedial
19 cover system is being constructed after end point data has confirmed the
20 selected remedial track pursuant to subdivision four of section 27-1415
21 of the environmental conservation law has been met and the remaining
22 soil is structurally supportive; or costs for two feet thickness of low
23 permeable material such as concrete or asphalt for sites where the reme-
24 dial cover system is being constructed after end point data has
25 confirmed the selected remedial track pursuant to subdivision four of
26 section 27-1415 of the environmental conservation law has been met and
27 the remaining soil is structurally unsound soil, such as historic fill
28 or sand.
29 (C) Site preparation costs as defined in this paragraph, and which
30 under the Internal Revenue Code, as amended, may also be properly
31 included in the cost or other basis for federal income tax purposes of
32 qualified tangible property, as described in paragraph three of this
33 subdivision, shall be allowable for purposes of the calculation of the
34 site preparation credit component under paragraph two of subdivision (a)
35 of this section, but any such costs shall be excluded from such quali-
36 fied tangible property basis for purposes of calculating the tangible
37 property credit component under paragraph three of subdivision (a) of
38 this section.
39 § 3. This act shall take effect immediately and shall apply to all
40 sites for which the taxpayer's claim for the site preparation credit
41 component determined with respect to the site's qualification for the
42 certificate of completion has not been finally determined as of such
43 effective date. Any non-final determinations by the commissioner of the
44 department of taxation and finance shall be subject to redetermination
45 to give effect to this act. The taxpayer may seek redetermination by
46 written notice to the commissioner given on or before the date which is
47 one year from such effective date. Such redetermination shall be made by
48 the department of taxation and finance desk audit bureau or other proc-
49 ess established by the commissioner by regulation, and shall be subject
50 to review pursuant to article 40 of the tax law. Effective immediately,
51 the addition, amendment and/or repeal of any rule or regulation neces-
52 sary for the implementation of this act on its effective date are
53 authorized and directed to be made and completed on or before such
54 effective date.