2023 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; (c) the project is an affordable housing project; (d) the
project  is  within  a  disadvantaged  community,  within  a  designated
brownfield opportunity area, and meets  the  conformance  determinations
pursuant  to  subdivision  ten  of section nine hundred seventy-r of the
general municipal law; or (e)  the  project  is  being  developed  as  a
renewable  energy facility site. 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.