STATE OF NEW YORK ________________________________________________________________________
5868--B
2023-2024 Regular Sessions
IN SENATE
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:
1 Section 1. The closing paragraph of subdivision 1-a of section 27-1407 2 of the environmental conservation law, as added by section 3 of part BB 3 of chapter 56 of the laws of 2015, is amended to read as follows: 4 Sites are not eligible for tangible property tax credits if: (a) the 5 contamination from ground water or soil vapor is solely emanating from 6 property other than the site subject to the present application; or (b) 7 the department has determined that the property has previously been 8 remediated pursuant to titles nine, thirteen and fourteen of this arti- 9 cle, title five of article fifty-six of this chapter and article twelve 10 of the navigation law such that it may be developed for its then 11 intended use; or (c) not in compliance with section two hundred twenty- 12 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
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1 § 2. Paragraphs (c) and (d) of subdivision 8 of section 27-1407 of the 2 environmental conservation law, as amended by section 3 of part A of 3 chapter 577 of the laws of 2004, are amended and a new paragraph (e) is 4 added to read as follows: 5 (c) there is an order providing for the investigation, removal, or 6 remediation of contamination relating to the brownfield site against the 7 person who is requesting participation; [or] 8 (d) [The] the person requesting participation is subject to an 9 outstanding claim as provided in subdivision four of this section[.]; or 10 (e) the person requesting participation does not demonstrate compli- 11 ance with section two hundred twenty-four-g of the labor law. 12 § 3. Subdivision 5 of section 27-1409 of the environmental conserva- 13 tion law, as amended by section 4 of part A of chapter 577 of the laws 14 of 2004, is amended to read as follows: 15 5. One authorizing the department to terminate a brownfield site 16 cleanup agreement at any time during the implementation of such agree- 17 ment if the applicant implementing such agreement fails to substantially 18 comply with such agreement's terms and conditions, including the 19 prevailing wage requirements of section two hundred twenty-four-g of the 20 labor law; 21 § 4. The labor law is amended by adding a new section 224-g to read as 22 follows: 23 § 224-g. Prevailing wage requirements applicable to brownfield remedi- 24 ation work performed under private contract. 1. Subject to the 25 provisions of this section, covered brownfield remediation work shall be 26 subject to prevailing wage requirements in accordance with sections two 27 hundred twenty and two hundred twenty-b of this article as it relates to 28 the following remediation activities: (a) all construction activities 29 including without limitation grading, contouring, trenching, grouting, 30 capping, excavating, incinerating, thermally treating, chemically treat- 31 ing, biologically treating, constructing leachate collection and treat- 32 ment systems or application of innovative technologies approved by the 33 department; (b) interim remedial measures; and (c) restoration of the 34 environment. Remediation activities which are as defined in paragraph 35 (a), (b), (e), (g), or (h) of subdivision five of section 27-1405 of the 36 environmental conservation law shall not be subject to prevailing wage 37 requirements in accordance with this section. 38 2. A project shall be deemed a "covered brownfield remediation work" 39 where: (a) the site is seeking or has received a determination that the 40 site is eligible for the tangible property credit component of the 41 brownfield redevelopment tax credit pursuant to paragraph three of 42 subdivision (a) of section twenty-one of the tax law; and (b) where the 43 work is paid for in whole or in part by public funds, where the amount 44 of all such public funds, when aggregated, is at least thirty percent of 45 the total construction project costs and where such project costs are 46 over five million dollars. 47 3. (a) For purposes of this section, "paid for in whole or in part out 48 of public funds" shall mean any of the following: 49 (i) The payment of money, by a public entity, or a third party acting 50 on behalf of and for the benefit of a public entity, directly to or on 51 behalf of the contractor, subcontractor, developer or owner that is not 52 subject to repayment; 53 (ii) The savings achieved from fees, rents, interest rates, or other 54 loan costs, or insurance costs that are lower than market rate costs; 55 savings from reduced taxes as a result of tax credits, tax abatements, 56 tax exemptions or tax increment financing; savings from payments in lieu
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1 of taxes; and any other savings from reduced, waived, or forgiven costs 2 that would have otherwise been at a higher or market rate except for the 3 involvement of the public entity; 4 (iii) Money loaned by the public entity that is to be repaid on a 5 contingent basis; 6 (iv) Credits that are applied by the public entity against repayment 7 of obligations to the public entity; or 8 (v) Benefits under section four hundred sixty-seven-m of the real 9 property tax law. 10 (b) For purposes of this section, "public entity" shall include, but 11 shall not be limited to, the state, a local development corporation as 12 defined in subdivision eight of section eighteen hundred one of the 13 public authorities law or section fourteen hundred eleven of the not- 14 for-profit corporation law, a municipal corporation as defined in 15 section one hundred nineteen-n of the general municipal law, an indus- 16 trial development agency formed pursuant to article eighteen-A of the 17 general municipal law or industrial development authorities formed 18 pursuant to article eight of the public authorities law, and any state, 19 local or interstate or international authorities as defined in section 20 two of the public authorities law; and shall include any trust created 21 by any such entities. 22 4. For purposes of this section "covered brownfield remediation work" 23 shall not include the following: (a) Construction work performed under a 24 pre-hire collective bargaining agreement between an owner or contractor 25 and a bona fide building and construction trade labor organization which 26 has established itself as the collective bargaining representative for 27 all persons who will perform work on such a project, and which provides 28 that only contractors and subcontractors who sign a pre-negotiated 29 agreement with the labor organization can perform work on such a 30 project, or construction work performed under a labor peace agreement, 31 project labor agreement, or any other construction work performed under 32 an enforceable agreement between an owner or contractor and a bona fide 33 building and construction trade labor organization; or 34 (b) an affordable housing project as defined in subdivision twenty- 35 nine of section 27-1405 of the environmental conservation law. 36 5. Upon request of the commissioner, the department of environmental 37 conservation shall provide site information, including total 38 construction project costs and project costs, to the commissioner. 39 6. For purposes of this section, the "fiscal officer" shall be deemed 40 to be the commissioner. The enforcement of any covered brownfield reme- 41 diation work pursuant to this section shall be subject to the require- 42 ments of sections two hundred twenty, two hundred twenty-a, two hundred 43 twenty-b, two hundred twenty-i, two hundred twenty-three, two hundred 44 twenty-four-b, and two hundred twenty-seven of this chapter and within 45 the jurisdiction of the fiscal officer; provided, however, nothing 46 contained in this section shall be deemed to construe any covered brown- 47 field remediation work as otherwise being considered public work pursu- 48 ant to this article. 49 7. The fiscal officer may issue rules and regulations governing the 50 provisions of this section. Violations of this section shall be grounds 51 for determinations and orders pursuant to section two hundred twenty-b 52 of this article. 53 8. Each owner and developer subject to the requirements of this 54 section shall comply with the objectives and goals of certified minority 55 and women-owned business enterprises pursuant to article fifteen-A of 56 the executive law and certified service-disabled veteran-owned busi-
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1 nesses pursuant to article three of the veterans' services law. The 2 department in consultation with the commissioner of the division of 3 minority and women's business development and the director of the divi- 4 sion of service-disabled veterans' business development shall make 5 training and resources available to assist minority and women-owned 6 business enterprises and service-disabled veteran-owned business enter- 7 prises on covered brownfield remediation work to achieve and maintain 8 compliance with prevailing wage requirements. The department shall make 9 such training and resources available online and shall afford minority 10 and women-owned business enterprises and service-disabled veteran-owned 11 business enterprises an opportunity to submit comments on such training. 12 9. (a) The fiscal officer shall report to the governor, the temporary 13 president of the senate, and the speaker of the assembly by July first, 14 two thousand twenty-five, and annually thereafter, on the participation 15 of minority and women-owned business enterprises in relation to covered 16 brownfield remediation work subject to the provisions of this section as 17 well as the diversity practices of contractors and subcontractors 18 employing laborers, workers, and mechanics on such projects. 19 (b) Such reports shall include aggregated data on the utilization and 20 participation of minority and women-owned business enterprises, the 21 employment of minorities and women in construction-related jobs on such 22 projects, and the commitment of contractors and subcontractors on such 23 projects to adopting practices and policies that promote diversity with- 24 in the workforce. The reports shall also examine the compliance of 25 contractors and subcontractors with other equal employment opportunity 26 requirements and anti-discrimination laws, in addition to any other 27 employment practices deemed pertinent by the commissioner. 28 (c) The fiscal officer may require any owner or developer to disclose 29 information on the participation of minority and women-owned business 30 enterprises and the diversity practices of contractors and subcontrac- 31 tors involved in the performance of any covered brownfield remediation 32 work. It shall be the duty of the fiscal officer to consult and to 33 share such information in order to effectuate the requirements of this 34 section. 35 § 5. This act shall take effect on the first of January next succeed- 36 ing the date on which it shall have become a law and shall apply to all 37 requests for participation received pursuant to section 27-1407 of the 38 environmental conservation law received on or after such date.