2023 New York Laws › ENV - Environmental Conservation › Article 27 - Collection, Treatment and Disposal of Refuse and Other Solid Waste › Title 14 - Brownfield Cleanup Program › 27-1419 - 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.