NY Env Conserv L § 27-1419 (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 27-1419 - Certification of Completion.

§ 27-1419. Certification of completion.   1.   Upon   certification   by  the  applicant  that  the  remediation requirements of this title have been or will be achieved  in  accordance with  the  schedules  provided in reports submitted to the department on the remedial work plan for the brownfield  site,  such  applicant  shall submit  to  the  department  a  final  engineering report prepared by an individual licensed or otherwise authorized in accordance  with  article one  hundred  forty-five of the education law to practice the profession of engineering.   2. A final engineering report shall include, at a minimum:  (a) a description of the remediation activities completed pursuant  to the  remedial  work  plan  and  any  interim  remedial  measures for the brownfield site;  (b)  a  certification  that  the  data  submitted  to  the  department demonstrates that the remediation requirements set forth in the remedial work  plan  and any other relevant provisions of this title have been or will be achieved in accordance with the timeframes, if any,  established in such work plan;  (c)  the  boundaries  of  the  real  property  that  is  subject  to a brownfield site cleanup agreement;  (d) a complete description of  any  institutional  and/or  engineering controls  employed  at  the  site, including the mechanisms that will be used to continually  implement,  maintain,  monitor,  and  enforce  such controls  both by the applicant, the applicant's successors and assigns, and by state or local government;  (e) a certification that any use restrictions, institutional controls, engineering controls and/or any operation and  maintenance  requirements applicable  to  the  site  are  contained  in  an environmental easement created and recorded pursuant to title thirty-six of article seventy-one of this chapter and that any affected local governments, as  defined  in title  thirty-six  of  article  seventy-one  of  this  chapter have been notified that such easement has been recorded;  (f) a certification that an operation and maintenance  plan  has  been submitted  by  the  applicant  for  the  continual and proper operation, maintenance, and monitoring of any engineering controls employed at  the site including the proper maintenance of any remaining monitoring wells, and that such plan has been approved by the department; and  (g)  a  certification that any financial assurance mechanisms required by the department pursuant to this title have been executed.   3. Upon receipt of the final engineering report, the department  shall review  such  report  and  the data submitted pursuant to the brownfield site cleanup  agreement  as  well  as  any  other  relevant  information regarding  the  brownfield  site.  Upon satisfaction of the commissioner that the remediation requirements set forth in this title have  been  or will  be achieved in accordance with the timeframes, if any, established in the remedial work  plan,  the  commissioner  shall  issue  a  written certificate   of   completion.   The   certificate  shall  include  such information as determined by the department  of  taxation  and  finance, including  but not limited to the brownfield site boundaries included in the final engineering report, the date of the  brownfield  site  cleanup agreement,  and  the  applicable percentages available as of the date of the certificate of completion for that  site  for  purposes  of  section twenty-one  of the tax law. For those sites for which the department has issued a notice to the applicant on or after July  first,  two  thousand fifteen  or  the  date  of publication in the state register of proposed regulations defining "underutilized" as provided in  subdivision  thirty of  section  27-1405  of  this title, whichever shall be later, that its request for participation has been accepted  under  subdivision  six  of  section 27-1407 of this title, 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  only  be available  to  the  taxpayer  if  the  criteria  for  receiving such tax component have been met. For those sites for which  the  department  has issued  a  notice  to the taxpayer after June twenty-third, two thousand eight that  its  request  for  participation  has  been  accepted  under subdivision  six  of  section  27-1407  of  this  title,  the applicable percentage  for  the  site  preparation  credit  component  pursuant  to paragraph  two  of subdivision (a) of section twenty-one of the tax law, and the on-site groundwater remediation  credit  component  pursuant  to paragraph  four  of subdivision (a) of section twenty-one of the tax law shall be based on the level of cleanup achieved pursuant to  subdivision four  of section 27-1415 of this title and the level of cleanup of soils to contaminant-specific soil cleanup objectives promulgated pursuant  to subdivision  six  of  section  27-1415 of this title, up to a maximum of fifty percent, as follows:  (a) soil cleanup for unrestricted use, the protection  of  groundwater or  the  protection  of  ecological resources, the applicable percentage shall be fifty percent;  (b) soil cleanup for residential use, the applicable percentage  shall be  forty  percent,  except  for  Track  4  which  shall be twenty-eight percent;  (c) soil cleanup for commercial use, the applicable  percentage  shall be  thirty-three  percent, except for Track 4 which shall be twenty-five percent;  (d) soil cleanup for industrial use, the applicable  percentage  shall be  twenty-seven  percent,  except for Track 4 which shall be twenty-two percent.   4. The commissioner shall not issue a certificate of completion to any applicant who has been identified by the administrator of the  New  York environmental   protection  and  spill  compensation  fund  pursuant  to subdivision  four  of  section  27-1407  of  this  title  as  a   person responsible  for  the  cleanup  and  removal  costs for the discharge of petroleum at or  emanating  from  the  brownfield  site  for  which  the applicant is seeking a certificate of completion where the applicant has not  resolved  any  outstanding  claim  at such site pursuant to article twelve of the navigation law.   5. A certificate of completion issued pursuant to this section may  be transferred  by the applicant or subsequent holder of the certificate of completion to a successor to a real property interest,  including  legal title,  equitable title or leasehold, in all or a part of the brownfield site for which the certificate of completion was issued. Notwithstanding any provision  of  this  chapter  to  the  contrary,  a  certificate  of completion  shall  not be transferred to a responsible party. Further, a certificate of completion may be modified or revoked by the commissioner upon a finding that:  (a) Either the applicant, or the applicant's  successors  or  assigns, has  failed  to  comply  with the terms and conditions of the brownfield site cleanup agreement;  (b) The applicant made a misrepresentation of a material fact  tending to  demonstrate  that:  (i) it was qualified as a volunteer; or (ii) met the criteria set forth in subdivision one-a of section 27-1407  of  this title  for  the  purpose  of  receiving  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;  (c)  Either  the  applicant, or the applicant's successors or assigns, made a misrepresentation of a material fact tending to demonstrate  that  the  cleanup  levels identified in the brownfield site cleanup agreement were reached; or  (d) There is good cause for such modification or revocation.   6. Upon the commissioner's determination pursuant to subdivision three or  five  of  this section, the commissioner shall provide the applicant with notice of such determination and notice of the right to appeal such determination. The commissioner's determination shall be final unless  a hearing  is  requested by certified mail sent to the commissioner within thirty days after receiving notice of  such  determination.  After  such hearing,  the  commissioner  shall give notice of final determination to such  applicant.  The  commissioner  may   promulgate   regulations   to effectuate the purposes of this section.   7.  Nothing  herein  shall  be  construed  as abrogating any powers or duties of the administrator of the New York environmental protection and spill compensation fund as provided in article twelve of the  navigation law.   8.  A notice of such certification of completion shall be recorded and indexed in the office  of  the  recording  officer  for  the  county  or counties  where such brownfield site is located in the manner prescribed by article nine of the real property  law  within  thirty  days  of  the issuance  of  the certificate of completion if the applicant is an owner or within thirty days of acquiring title to the brownfield site  if  the person is a prospective purchaser.