§ 27-1407 — Request for participation

§ 27-1407. Request for participation.\n 1. A person who seeks to participate in this program shall submit a\nrequest to the department on a form provided by the department. Such\nform shall include information to be determined by the department\nsufficient to allow the department to determine eligibility and the\ncurrent, intended and reasonably anticipated future land use of the site\npursuant to section 27-1415 of this title. Any such person shall submit\nan investigation report sufficient to demonstrate that the site requires\nremediation in order to meet the remedial requirements of this title.\n 1-a. If the person is also seeking a determination that the site is\neligible for the tangible property credit component of the brownfield\nredevelopment tax credit pursuant to paragraph three of subdivision (a)\nof section twenty-one of the tax law for a site located in a city having\na population of one million or more, such person shall submit\ninformation sufficient to demonstrate that: (a) at least half of the\nsite area is located in an environmental zone as defined in section\ntwenty-one of the tax law; (b) the property is upside down or\nunderutilized; (c) the project is an affordable housing project; (d) the\nproject is within a disadvantaged community, within a designated\nbrownfield opportunity area, and meets the conformance determinations\npursuant to subdivision ten of section nine hundred seventy-r of the\ngeneral municipal law; or (e) the project is being developed as a\nrenewable energy facility site. An applicant may request an eligibility\ndetermination for tangible property credits at any time from application\nuntil the site receives a certificate of completion pursuant to section\n27-1419 of this title except for sites seeking eligibility under the\nunderutilized category.\n Sites are not eligible for tangible property tax credits if: (a) the\ncontamination from ground water or soil vapor is solely emanating from\nproperty other than the site subject to the present application; or (b)\nthe department has determined that the property has previously been\nremediated pursuant to titles nine, thirteen and fourteen of this\narticle, title five of article fifty-six of this chapter and article\ntwelve of the navigation law such that it may be developed for its then\nintended use.\n 2. If the person chooses, such person may also submit a work plan for\na site investigation or a final report describing the results of an\ninvestigation that meets the requirements of this article.\n 3. The department shall notify the person requesting participation in\nthis program within thirty days after receiving such request that such\nrequest is either complete or incomplete. In the event the application\nis determined to be incomplete the department shall specify in writing\nthe missing necessary information required pursuant to this article to\ncomplete the application and shall have ten days after receipt of the\nmissing information to issue a written determination if the application\nis complete.\n 4. Upon the receipt of an application, the department shall notify the\nadministrator of the New York environmental protection and spill\ncompensation fund to determine whether such person has been identified\nas responsible for cleanup and removal costs for the discharge of\npetroleum at or emanating from the brownfield site for which the person\nis seeking participation and whether there is an outstanding claim\nagainst such person pursuant to article twelve of the navigation law.\nThe administrator shall notify the department and the person within\nthirty days of such notice of any outstanding claim by the fund against\nsuch person at the brownfield site for which the person is seeking\nparticipation.\n 5. Upon the determination that the application is complete, the\ndepartment shall commence a thirty day comment period and place a\nnotification of receipt of request to participate in this program in the\nenvironmental notice bulletin and provide newspaper notice. The\ndepartment shall also provide notice thereof in writing to the chief\nexecutive officer and zoning board of each county, city, town and\nvillage in which such brownfield site is located, residents on and/or\nadjacent to the site, the public water supplier which services the area\nin which such brownfield site is located, any person who has requested\nto be placed on the brownfield site contact list and the administrator\nof any school or day care facility located on and/or adjacent to the\nsite for the purposes of posting and/or dissemination at the facility.\nFor purposes of this section "water supplier" means any public water\nsystem as such term is defined for the purposes of the sanitary code of\nthe state of New York as authorized by section two hundred twenty-five\nof the public health law. Provided, however, that where the site or\nadjacent real property contains multiple dwelling units, the person\nshall work with the department to develop an alternative method for\nproviding such notice in lieu of mailing to each individual.\n 6. The department shall use all best efforts to expeditiously notify\nthe applicant within forty-five days after receiving a complete\napplication for participation that such request is either accepted or\nrejected, and, for any applicant seeking to receive the tangible\nproperty credit component of the brownfield redevelopment tax credit\npursuant to paragraph three of subdivision (a) of section twenty-one of\nthe tax law, shall concurrently notify the applicant whether the\ncriteria for receiving such component as set forth in subdivision one of\nthis section have been met.\n 7. In the event a final investigation report describing the results of\nan investigation that meets the requirements of this article was\nsubmitted with the application, the person shall establish a document\nrepository, notify individuals on the brownfield site contact list, and\nprovide for a thirty day comment period. Within sixty days after\nreceiving a person's application the commissioner shall inform the\nperson in writing that the investigation is complete or that the\ninvestigation is incomplete and specify the missing necessary\ninformation required pursuant to this article to complete the\ninvestigation and/or the final investigation report.\n 8. The department shall reject such request if:\n (a) the department determines that the request is for real property\nwhich does not meet the requirements of a brownfield site as defined in\nthis title; or\n (b) there is an action or proceeding relating to the brownfield site\nagainst the person who is requesting participation that is pending in\nany civil or criminal court in any jurisdiction, or before any state or\nfederal administrative agency or body, wherein the state or federal\ngovernment seeks the investigation, removal, or remediation of\ncontamination or penalties;\n (c) there is an order providing for the investigation, removal, or\nremediation of contamination relating to the brownfield site against the\nperson who is requesting participation; or\n (d) The person requesting participation is subject to an outstanding\nclaim as provided in subdivision four of this section.\n 9. The department may reject such request for participation if the\ndepartment determines that the public interest would not be served by\ngranting such request. The department shall consider factors, including\nbut not limited to, the following:\n (a) The person has been determined in an administrative, civil or\ncriminal proceeding to have violated any provision of this article, any\nrelated order or determination of the commissioner, any regulation\npromulgated pursuant to this article, or any similar statute,\nregulation, order of the federal or other state government.\n (b) The person has been denied entry into this program based upon one\nor more of the provisions of this subdivision, or a similar provision of\nfederal or other state law.\n (c) The person has been found in a civil proceeding to have committed\na negligent or intentionally tortious act, or has been convicted in a\ncriminal proceeding of a criminal act involving the handling, storing,\ntreating, disposing or transporting of contaminants.\n (d) The person has been convicted of a criminal offense under the laws\nof any state or of the United States which involves a violent felony\noffense, fraud, bribery, perjury, theft, or an offense against public\nadministration as that term is used in article one hundred ninety-five\nof the penal law.\n (e) The person has in any matter within the jurisdiction of the\ndepartment knowingly falsified or concealed a material fact or knowingly\nsubmitted a false statement or made use of or made a false statement on\nor in connection with any document or application submitted to the\ndepartment.\n (f) The person is either:\n (1) an individual who had a substantial interest in or acted as a high\nmanagerial agent or director for any corporation, partnership,\nassociation or organization which committed an act or failed to act, and\nsuch act or failure to act could be the basis for the denial of a\nrequest for participation pursuant to this section or regulations\npromulgated thereunder if such corporation, partnership, association or\norganization submitted a request under this title;\n (2) a corporation, partnership, association, organization, or any\nprincipal thereof, or any person holding a substantial interest therein,\nwhich committed an act or failed to act, and such act or failure to act\ncould be the basis for the denial of a request for participation\npursuant to this section or regulations promulgated thereunder if such\ncorporation, partnership, association or organization submitted a\nrequest under this title; or\n (3) a corporation, partnership, association or organization or any\nhigh managerial agent or director thereof, or any person holding a\nsubstantial interest therein, acting as high managerial agent or\ndirector for or holding a substantial interest in another corporation,\npartnership, association or organization which committed an act or\nfailed to act, and such act or failure to act could be the basis for the\ndenial of a request for a participation pursuant to this section or\nregulations promulgated thereunder had such other corporation,\npartnership, association or organization submitted a request under this\ntitle.\n (g) The person's participation in any remedial program under the\ndepartment's oversight was terminated by the department or by a court\nfor failure to substantially comply with an agreement or order.\n For the purposes of this subdivision, "high managerial agent" has the\nsame meaning as is given that term in section 20.20 of the penal law,\nand "substantial interest" shall be defined in regulations promulgated\nby the commissioner.\n