S T A T E O F N E W Y O R K
________________________________________________________________________
5868--B
2023-2024 Regular Sessions
I N S E N A T E
March 20, 2023
___________
Introduced by Sens. HARCKHAM, BAILEY, BROUK, CHU, COMRIE, COONEY,
FERNANDEZ, GONZALEZ, GOUNARDES, HINCHEY, HOYLMAN-SIGAL, JACKSON, LIU,
MATTERA, MAY, MAYER, PALUMBO, RAMOS, RIVERA, RYAN, SANDERS, SCARCEL-
LA-SPANTON, SEPULVEDA, SKOUFIS, STAVISKY, WEBB, WEBER -- read twice
and ordered printed, and when printed to be committed to the Committee
on Environmental Conservation -- reported favorably from said commit-
tee and committed to the Committee on Finance -- committee discharged,
bill amended, ordered reprinted as amended and recommitted to said
committee -- recommitted to the Committee on Environmental Conserva-
tion in accordance with Senate Rule 6, sec. 8 -- reported favorably
from said committee and committed to the Committee on Finance --
committee discharged, bill amended, ordered reprinted as amended and
recommitted to said committee
AN ACT to amend the environmental conservation law and the labor law, in
relation to prevailing wage requirements applicable to brownfield
remediation work performed under private contract
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. The closing paragraph of subdivision 1-a of section 27-1407
of the environmental conservation law, as added by section 3 of part BB
of chapter 56 of the laws of 2015, is amended to read as follows:
Sites are not eligible for tangible property tax credits if: (a) the
contamination from ground water or soil vapor is solely emanating from
property other than the site subject to the present application; or (b)
the department has determined that the property has previously been
remediated pursuant to titles nine, thirteen and fourteen of this arti-
cle, title five of article fifty-six of this chapter and article twelve
of the navigation law such that it may be developed for its then
intended use; OR (C) NOT IN COMPLIANCE WITH SECTION TWO HUNDRED TWENTY-
FOUR-G OF THE LABOR LAW.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD10107-10-4
S. 5868--B 2
§ 2. Paragraphs (c) and (d) of subdivision 8 of section 27-1407 of the
environmental conservation law, as amended by section 3 of part A of
chapter 577 of the laws of 2004, are amended and a new paragraph (e) is
added to read as follows:
(c) there is an order providing for the investigation, removal, or
remediation of contamination relating to the brownfield site against the
person who is requesting participation; [or]
(d) [The] THE person requesting participation is subject to an
outstanding claim as provided in subdivision four of this section[.]; OR
(E) THE PERSON REQUESTING PARTICIPATION DOES NOT DEMONSTRATE COMPLI-
ANCE WITH SECTION TWO HUNDRED TWENTY-FOUR-G OF THE LABOR LAW.
§ 3. Subdivision 5 of section 27-1409 of the environmental conserva-
tion law, as amended by section 4 of part A of chapter 577 of the laws
of 2004, is amended to read as follows:
5. One authorizing the department to terminate a brownfield site
cleanup agreement at any time during the implementation of such agree-
ment if the applicant implementing such agreement fails to substantially
comply with such agreement's terms and conditions, INCLUDING THE
PREVAILING WAGE REQUIREMENTS OF SECTION TWO HUNDRED TWENTY-FOUR-G OF THE
LABOR LAW;
§ 4. The labor law is amended by adding a new section 224-g to read as
follows:
§ 224-G. PREVAILING WAGE REQUIREMENTS APPLICABLE TO BROWNFIELD REMEDI-
ATION WORK PERFORMED UNDER PRIVATE CONTRACT. 1. SUBJECT TO THE
PROVISIONS OF THIS SECTION, COVERED BROWNFIELD REMEDIATION WORK SHALL BE
SUBJECT TO PREVAILING WAGE REQUIREMENTS IN ACCORDANCE WITH SECTIONS TWO
HUNDRED TWENTY AND TWO HUNDRED TWENTY-B OF THIS ARTICLE AS IT RELATES TO
THE FOLLOWING REMEDIATION ACTIVITIES: (A) ALL CONSTRUCTION ACTIVITIES
INCLUDING WITHOUT LIMITATION GRADING, CONTOURING, TRENCHING, GROUTING,
CAPPING, EXCAVATING, INCINERATING, THERMALLY TREATING, CHEMICALLY TREAT-
ING, BIOLOGICALLY TREATING, CONSTRUCTING LEACHATE COLLECTION AND TREAT-
MENT SYSTEMS OR APPLICATION OF INNOVATIVE TECHNOLOGIES APPROVED BY THE
DEPARTMENT; (B) INTERIM REMEDIAL MEASURES; AND (C) RESTORATION OF THE
ENVIRONMENT. REMEDIATION ACTIVITIES WHICH ARE AS DEFINED IN PARAGRAPH
(A), (B), (E), (G), OR (H) OF SUBDIVISION FIVE OF SECTION 27-1405 OF THE
ENVIRONMENTAL CONSERVATION LAW SHALL NOT BE SUBJECT TO PREVAILING WAGE
REQUIREMENTS IN ACCORDANCE WITH THIS SECTION.
2. A PROJECT SHALL BE DEEMED A "COVERED BROWNFIELD REMEDIATION WORK"
WHERE: (A) THE SITE IS SEEKING OR HAS RECEIVED A DETERMINATION THAT THE
SITE IS ELIGIBLE FOR THE TANGIBLE PROPERTY CREDIT COMPONENT OF THE
BROWNFIELD REDEVELOPMENT TAX CREDIT PURSUANT TO PARAGRAPH THREE OF
SUBDIVISION (A) OF SECTION TWENTY-ONE OF THE TAX LAW; AND (B) WHERE THE
WORK IS PAID FOR IN WHOLE OR IN PART BY PUBLIC FUNDS, WHERE THE AMOUNT
OF ALL SUCH PUBLIC FUNDS, WHEN AGGREGATED, IS AT LEAST THIRTY PERCENT OF
THE TOTAL CONSTRUCTION PROJECT COSTS AND WHERE SUCH PROJECT COSTS ARE
OVER FIVE MILLION DOLLARS.
3. (A) FOR PURPOSES OF THIS SECTION, "PAID FOR IN WHOLE OR IN PART OUT
OF PUBLIC FUNDS" SHALL MEAN ANY OF THE FOLLOWING:
(I) THE PAYMENT OF MONEY, BY A PUBLIC ENTITY, OR A THIRD PARTY ACTING
ON BEHALF OF AND FOR THE BENEFIT OF A PUBLIC ENTITY, DIRECTLY TO OR ON
BEHALF OF THE CONTRACTOR, SUBCONTRACTOR, DEVELOPER OR OWNER THAT IS NOT
SUBJECT TO REPAYMENT;
(II) THE SAVINGS ACHIEVED FROM FEES, RENTS, INTEREST RATES, OR OTHER
LOAN COSTS, OR INSURANCE COSTS THAT ARE LOWER THAN MARKET RATE COSTS;
SAVINGS FROM REDUCED TAXES AS A RESULT OF TAX CREDITS, TAX ABATEMENTS,
TAX EXEMPTIONS OR TAX INCREMENT FINANCING; SAVINGS FROM PAYMENTS IN LIEU
S. 5868--B 3
OF TAXES; AND ANY OTHER SAVINGS FROM REDUCED, WAIVED, OR FORGIVEN COSTS
THAT WOULD HAVE OTHERWISE BEEN AT A HIGHER OR MARKET RATE EXCEPT FOR THE
INVOLVEMENT OF THE PUBLIC ENTITY;
(III) MONEY LOANED BY THE PUBLIC ENTITY THAT IS TO BE REPAID ON A
CONTINGENT BASIS;
(IV) CREDITS THAT ARE APPLIED BY THE PUBLIC ENTITY AGAINST REPAYMENT
OF OBLIGATIONS TO THE PUBLIC ENTITY; OR
(V) BENEFITS UNDER SECTION FOUR HUNDRED SIXTY-SEVEN-M OF THE REAL
PROPERTY TAX LAW.
(B) FOR PURPOSES OF THIS SECTION, "PUBLIC ENTITY" SHALL INCLUDE, BUT
SHALL NOT BE LIMITED TO, THE STATE, A LOCAL DEVELOPMENT CORPORATION AS
DEFINED IN SUBDIVISION EIGHT OF SECTION EIGHTEEN HUNDRED ONE OF THE
PUBLIC AUTHORITIES LAW OR SECTION FOURTEEN HUNDRED ELEVEN OF THE NOT-
FOR-PROFIT CORPORATION LAW, A MUNICIPAL CORPORATION AS DEFINED IN
SECTION ONE HUNDRED NINETEEN-N OF THE GENERAL MUNICIPAL LAW, AN INDUS-
TRIAL DEVELOPMENT AGENCY FORMED PURSUANT TO ARTICLE EIGHTEEN-A OF THE
GENERAL MUNICIPAL LAW OR INDUSTRIAL DEVELOPMENT AUTHORITIES FORMED
PURSUANT TO ARTICLE EIGHT OF THE PUBLIC AUTHORITIES LAW, AND ANY STATE,
LOCAL OR INTERSTATE OR INTERNATIONAL AUTHORITIES AS DEFINED IN SECTION
TWO OF THE PUBLIC AUTHORITIES LAW; AND SHALL INCLUDE ANY TRUST CREATED
BY ANY SUCH ENTITIES.
4. FOR PURPOSES OF THIS SECTION "COVERED BROWNFIELD REMEDIATION WORK"
SHALL NOT INCLUDE THE FOLLOWING: (A) CONSTRUCTION WORK PERFORMED UNDER A
PRE-HIRE COLLECTIVE BARGAINING AGREEMENT BETWEEN AN OWNER OR CONTRACTOR
AND A BONA FIDE BUILDING AND CONSTRUCTION TRADE LABOR ORGANIZATION WHICH
HAS ESTABLISHED ITSELF AS THE COLLECTIVE BARGAINING REPRESENTATIVE FOR
ALL PERSONS WHO WILL PERFORM WORK ON SUCH A PROJECT, AND WHICH PROVIDES
THAT ONLY CONTRACTORS AND SUBCONTRACTORS WHO SIGN A PRE-NEGOTIATED
AGREEMENT WITH THE LABOR ORGANIZATION CAN PERFORM WORK ON SUCH A
PROJECT, OR CONSTRUCTION WORK PERFORMED UNDER A LABOR PEACE AGREEMENT,
PROJECT LABOR AGREEMENT, OR ANY OTHER CONSTRUCTION WORK PERFORMED UNDER
AN ENFORCEABLE AGREEMENT BETWEEN AN OWNER OR CONTRACTOR AND A BONA FIDE
BUILDING AND CONSTRUCTION TRADE LABOR ORGANIZATION; OR
(B) AN AFFORDABLE HOUSING PROJECT AS DEFINED IN SUBDIVISION TWENTY-
NINE OF SECTION 27-1405 OF THE ENVIRONMENTAL CONSERVATION LAW.
5. UPON REQUEST OF THE COMMISSIONER, THE DEPARTMENT OF ENVIRONMENTAL
CONSERVATION SHALL PROVIDE SITE INFORMATION, INCLUDING TOTAL
CONSTRUCTION PROJECT COSTS AND PROJECT COSTS, TO THE COMMISSIONER.
6. FOR PURPOSES OF THIS SECTION, THE "FISCAL OFFICER" SHALL BE DEEMED
TO BE THE COMMISSIONER. THE ENFORCEMENT OF ANY COVERED BROWNFIELD REME-
DIATION WORK PURSUANT TO THIS SECTION SHALL BE SUBJECT TO THE REQUIRE-
MENTS OF SECTIONS TWO HUNDRED TWENTY, TWO HUNDRED TWENTY-A, TWO HUNDRED
TWENTY-B, TWO HUNDRED TWENTY-I, TWO HUNDRED TWENTY-THREE, TWO HUNDRED
TWENTY-FOUR-B, AND TWO HUNDRED TWENTY-SEVEN OF THIS CHAPTER AND WITHIN
THE JURISDICTION OF THE FISCAL OFFICER; PROVIDED, HOWEVER, NOTHING
CONTAINED IN THIS SECTION SHALL BE DEEMED TO CONSTRUE ANY COVERED BROWN-
FIELD REMEDIATION WORK AS OTHERWISE BEING CONSIDERED PUBLIC WORK PURSU-
ANT TO THIS ARTICLE.
7. THE FISCAL OFFICER MAY ISSUE RULES AND REGULATIONS GOVERNING THE
PROVISIONS OF THIS SECTION. VIOLATIONS OF THIS SECTION SHALL BE GROUNDS
FOR DETERMINATIONS AND ORDERS PURSUANT TO SECTION TWO HUNDRED TWENTY-B
OF THIS ARTICLE.
8. EACH OWNER AND DEVELOPER SUBJECT TO THE REQUIREMENTS OF THIS
SECTION SHALL COMPLY WITH THE OBJECTIVES AND GOALS OF CERTIFIED MINORITY
AND WOMEN-OWNED BUSINESS ENTERPRISES PURSUANT TO ARTICLE FIFTEEN-A OF
THE EXECUTIVE LAW AND CERTIFIED SERVICE-DISABLED VETERAN-OWNED BUSI-
S. 5868--B 4
NESSES PURSUANT TO ARTICLE THREE OF THE VETERANS' SERVICES LAW. THE
DEPARTMENT IN CONSULTATION WITH THE COMMISSIONER OF THE DIVISION OF
MINORITY AND WOMEN'S BUSINESS DEVELOPMENT AND THE DIRECTOR OF THE DIVI-
SION OF SERVICE-DISABLED VETERANS' BUSINESS DEVELOPMENT SHALL MAKE
TRAINING AND RESOURCES AVAILABLE TO ASSIST MINORITY AND WOMEN-OWNED
BUSINESS ENTERPRISES AND SERVICE-DISABLED VETERAN-OWNED BUSINESS ENTER-
PRISES ON COVERED BROWNFIELD REMEDIATION WORK TO ACHIEVE AND MAINTAIN
COMPLIANCE WITH PREVAILING WAGE REQUIREMENTS. THE DEPARTMENT SHALL MAKE
SUCH TRAINING AND RESOURCES AVAILABLE ONLINE AND SHALL AFFORD MINORITY
AND WOMEN-OWNED BUSINESS ENTERPRISES AND SERVICE-DISABLED VETERAN-OWNED
BUSINESS ENTERPRISES AN OPPORTUNITY TO SUBMIT COMMENTS ON SUCH TRAINING.
9. (A) THE FISCAL OFFICER SHALL REPORT TO THE GOVERNOR, THE TEMPORARY
PRESIDENT OF THE SENATE, AND THE SPEAKER OF THE ASSEMBLY BY JULY FIRST,
TWO THOUSAND TWENTY-FIVE, AND ANNUALLY THEREAFTER, ON THE PARTICIPATION
OF MINORITY AND WOMEN-OWNED BUSINESS ENTERPRISES IN RELATION TO COVERED
BROWNFIELD REMEDIATION WORK SUBJECT TO THE PROVISIONS OF THIS SECTION AS
WELL AS THE DIVERSITY PRACTICES OF CONTRACTORS AND SUBCONTRACTORS
EMPLOYING LABORERS, WORKERS, AND MECHANICS ON SUCH PROJECTS.
(B) SUCH REPORTS SHALL INCLUDE AGGREGATED DATA ON THE UTILIZATION AND
PARTICIPATION OF MINORITY AND WOMEN-OWNED BUSINESS ENTERPRISES, THE
EMPLOYMENT OF MINORITIES AND WOMEN IN CONSTRUCTION-RELATED JOBS ON SUCH
PROJECTS, AND THE COMMITMENT OF CONTRACTORS AND SUBCONTRACTORS ON SUCH
PROJECTS TO ADOPTING PRACTICES AND POLICIES THAT PROMOTE DIVERSITY WITH-
IN THE WORKFORCE. THE REPORTS SHALL ALSO EXAMINE THE COMPLIANCE OF
CONTRACTORS AND SUBCONTRACTORS WITH OTHER EQUAL EMPLOYMENT OPPORTUNITY
REQUIREMENTS AND ANTI-DISCRIMINATION LAWS, IN ADDITION TO ANY OTHER
EMPLOYMENT PRACTICES DEEMED PERTINENT BY THE COMMISSIONER.
(C) THE FISCAL OFFICER MAY REQUIRE ANY OWNER OR DEVELOPER TO DISCLOSE
INFORMATION ON THE PARTICIPATION OF MINORITY AND WOMEN-OWNED BUSINESS
ENTERPRISES AND THE DIVERSITY PRACTICES OF CONTRACTORS AND SUBCONTRAC-
TORS INVOLVED IN THE PERFORMANCE OF ANY COVERED BROWNFIELD REMEDIATION
WORK. IT SHALL BE THE DUTY OF THE FISCAL OFFICER TO CONSULT AND TO
SHARE SUCH INFORMATION IN ORDER TO EFFECTUATE THE REQUIREMENTS OF THIS
SECTION.
§ 5. This act shall take effect on the first of January next succeed-
ing the date on which it shall have become a law and shall apply to all
requests for participation received pursuant to section 27-1407 of the
environmental conservation law received on or after such date.
