NY Env Conserv L § 27-1407 (2021)
2021 New York Laws ENV - Environmental Conservation Article 27 - Collection, Treatment and Disposal of Refuse and Other Solid Waste Title 14 - Brownfield Cleanup Program 27-1407 - Request for Participation.

§ 27-1407. Request for participation.   1.  A  person  who seeks to participate in this program shall submit a request to the department on a form provided  by  the  department.  Such form  shall  include  information  to  be  determined  by the department sufficient to allow the department  to  determine  eligibility  and  the current, intended and reasonably anticipated future land use of the site pursuant  to section 27-1415 of this title. Any such person shall submit an investigation report sufficient to demonstrate that the site requires remediation in order to meet the remedial requirements of this title.   1-a. If the person is also seeking 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 for a site located in a city having a   population  of  one  million  or  more,  such  person  shall  submit information sufficient to demonstrate that: (a) at  least  half  of  the site  area  is  located  in  an environmental zone as defined in section twenty-one  of  the  tax  law;  (b)  the  property  is  upside  down  or underutilized;  or  (c) the project is an affordable housing project. An applicant may request an eligibility determination for tangible property credits  at  any  time  from  application  until  the  site  receives  a certificate  of  completion  pursuant  to  section 27-1419 of this title except for sites seeking eligibility under the underutilized category.   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 article,  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.   2.  If the person chooses, such person may also submit a work plan for a site investigation or a final report  describing  the  results  of  an investigation that meets the requirements of this article.   3.  The department shall notify the person requesting participation in this program within thirty days after receiving such request  that  such request  is  either complete or incomplete. In the event the application is determined to be incomplete the department shall specify  in  writing the  missing  necessary information required pursuant to this article to complete the application and shall have ten days after  receipt  of  the missing  information to issue a written determination if the application is complete.   4. Upon the receipt of an application, the department shall notify the administrator  of  the  New  York  environmental  protection  and  spill compensation  fund  to determine whether such person has been identified as responsible for cleanup  and  removal  costs  for  the  discharge  of petroleum  at or emanating from the brownfield site for which the person is seeking participation and  whether  there  is  an  outstanding  claim against  such  person  pursuant to article twelve of the navigation law. The administrator shall notify the  department  and  the  person  within thirty  days of such notice of any outstanding claim by the fund against such person at the brownfield site  for  which  the  person  is  seeking participation.   5.  Upon  the  determination  that  the  application  is complete, the department shall commence a  thirty  day  comment  period  and  place  a notification of receipt of request to participate in this program in the environmental   notice   bulletin  and  provide  newspaper  notice.  The department shall also provide notice thereof in  writing  to  the  chief executive  officer  and  zoning  board  of  each  county, city, town and  village in which such brownfield site is located,  residents  on  and/or adjacent  to the site, the public water supplier which services the area in which such brownfield site is located, any person who  has  requested to  be  placed on the brownfield site contact list and the administrator of any school or day care facility located on  and/or  adjacent  to  the site  for  the purposes of posting and/or dissemination at the facility. For purposes of this section "water supplier"  means  any  public  water system  as such term is defined for the purposes of the sanitary code of the state of New York as authorized by section two  hundred  twenty-five of  the  public  health  law.  Provided, however, that where the site or adjacent real property contains  multiple  dwelling  units,  the  person shall  work  with  the  department  to develop an alternative method for providing such notice in lieu of mailing to each individual.   6. The department shall use all best efforts to  expeditiously  notify the   applicant  within  forty-five  days  after  receiving  a  complete application for participation that such request is  either  accepted  or rejected,  and,  for  any  applicant  seeking  to  receive  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,  shall  concurrently  notify  the  applicant  whether  the criteria for receiving such component as set forth in subdivision one of this section have been met.   7. In the event a final investigation report describing the results of an  investigation  that  meets  the  requirements  of  this  article was submitted with the application, the person shall  establish  a  document repository,  notify individuals on the brownfield site contact list, and provide for a  thirty  day  comment  period.  Within  sixty  days  after receiving  a  person's  application  the  commissioner  shall inform the person in writing  that  the  investigation  is  complete  or  that  the investigation   is   incomplete   and   specify  the  missing  necessary information  required  pursuant  to  this  article   to   complete   the investigation and/or the final investigation report.   8. The department shall reject such request if:  (a)  the  department  determines that the request is for real property which does not meet the requirements of a brownfield site as defined  in this title; or  (b)  there  is an action or proceeding relating to the brownfield site against the person who is requesting participation that  is  pending  in any  civil or criminal court in any jurisdiction, or before any state or federal administrative agency or body,  wherein  the  state  or  federal government   seeks   the   investigation,  removal,  or  remediation  of contamination or penalties;  (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  person requesting participation is subject to an outstanding claim as provided in subdivision four of this section.   9. The department may reject such request  for  participation  if  the department  determines  that  the public interest would not be served by granting such request. The department shall consider factors,  including but not limited to, the following:  (a)  The  person  has  been  determined in an administrative, civil or criminal proceeding to have violated any provision of this article,  any related  order  or  determination  of  the  commissioner, any regulation promulgated  pursuant  to  this  article,  or   any   similar   statute, regulation, order of the federal or other state government.  (b)  The person has been denied entry into this program based upon one or more of the provisions of this subdivision, or a similar provision of federal or other state law.  (c)  The person has been found in a civil proceeding to have committed a negligent or intentionally tortious act, or has been  convicted  in  a criminal  proceeding  of a criminal act involving the handling, storing, treating, disposing or transporting of contaminants.  (d) The person has been convicted of a criminal offense under the laws of any state or of the United States which  involves  a  violent  felony offense,  fraud,  bribery,  perjury, theft, or an offense against public administration as that term is used in article one  hundred  ninety-five of the penal law.  (e)  The  person  has  in  any  matter  within the jurisdiction of the department knowingly falsified or concealed a material fact or knowingly submitted a false statement or made use of or made a false statement  on or  in  connection  with  any  document  or application submitted to the department.  (f) The person is either:  (1) an individual who had a substantial interest in or acted as a high managerial  agent  or  director  for   any   corporation,   partnership, association or organization which committed an act or failed to act, and such  act  or  failure  to  act  could  be the basis for the denial of a request for  participation  pursuant  to  this  section  or  regulations promulgated  thereunder if such corporation, partnership, association or organization submitted a request under this title;  (2) a corporation,  partnership,  association,  organization,  or  any principal thereof, or any person holding a substantial interest therein, which  committed an act or failed to act, and such act or failure to act could be the basis  for  the  denial  of  a  request  for  participation pursuant  to  this section or regulations promulgated thereunder if such corporation,  partnership,  association  or  organization  submitted   a request under this title; or  (3)  a  corporation,  partnership,  association or organization or any high managerial agent or director  thereof,  or  any  person  holding  a substantial  interest  therein,  acting  as  high  managerial  agent  or director for or holding a substantial interest in  another  corporation, partnership,  association  or  organization  which  committed  an act or failed to act, and such act or failure to act could be the basis for the denial of a request for a participation  pursuant  to  this  section  or regulations   promulgated   thereunder   had   such  other  corporation, partnership, association or organization submitted a request under  this title.  (g)  The  person's  participation  in  any  remedial program under the department's oversight was terminated by the department or  by  a  court for failure to substantially comply with an agreement or order.   For  the purposes of this subdivision, "high managerial agent" has the same meaning as is given that term in section 20.20 of  the  penal  law, and  "substantial  interest" shall be defined in regulations promulgated by the commissioner.