§ 27-1419 — Certification of completion

§ 27-1419. Certification of completion.\n 1. Upon certification by the applicant that the remediation\nrequirements of this title have been or will be achieved in accordance\nwith the schedules provided in reports submitted to the department on\nthe remedial work plan for the brownfield site, such applicant shall\nsubmit to the department a final engineering report prepared by an\nindividual licensed or otherwise authorized in accordance with article\none hundred forty-five of the education law to practice the profession\nof engineering.\n 2. A final engineering report shall include, at a minimum:\n (a) a description of the remediation activities completed pursuant to\nthe remedial work plan and any interim remedial measures for the\nbrownfield site;\n (b) a certification that the data submitted to the department\ndemonstrates that the remediation requirements set forth in the remedial\nwork plan and any other relevant provisions of this title have been or\nwill be achieved in accordance with the timeframes, if any, established\nin such work plan;\n (c) the boundaries of the real property that is subject to a\nbrownfield site cleanup agreement;\n (d) a complete description of any institutional and/or engineering\ncontrols employed at the site, including the mechanisms that will be\nused to continually implement, maintain, monitor, and enforce such\ncontrols both by the applicant, the applicant's successors and assigns,\nand by state or local government;\n (e) a certification that any use restrictions, institutional controls,\nengineering controls and/or any operation and maintenance requirements\napplicable to the site are contained in an environmental easement\ncreated and recorded pursuant to title thirty-six of article seventy-one\nof this chapter and that any affected local governments, as defined in\ntitle thirty-six of article seventy-one of this chapter have been\nnotified that such easement has been recorded;\n (f) a certification that an operation and maintenance plan has been\nsubmitted by the applicant for the continual and proper operation,\nmaintenance, and monitoring of any engineering controls employed at the\nsite including the proper maintenance of any remaining monitoring wells,\nand that such plan has been approved by the department; and\n (g) a certification that any financial assurance mechanisms required\nby the department pursuant to this title have been executed.\n 3. Upon receipt of the final engineering report, the department shall\nreview such report and the data submitted pursuant to the brownfield\nsite cleanup agreement as well as any other relevant information\nregarding the brownfield site. Upon satisfaction of the commissioner\nthat the remediation requirements set forth in this title have been or\nwill be achieved in accordance with the timeframes, if any, established\nin the remedial work plan, the commissioner shall issue a written\ncertificate of completion. The certificate shall include such\ninformation as determined by the department of taxation and finance,\nincluding but not limited to the brownfield site boundaries included in\nthe final engineering report, the date of the brownfield site cleanup\nagreement, and the applicable percentages available as of the date of\nthe certificate of completion for that site for purposes of section\ntwenty-one of the tax law. For those sites for which the department has\nissued a notice to the applicant on or after July first, two thousand\nfifteen or the date of publication in the state register of proposed\nregulations defining "underutilized" as provided in subdivision thirty\nof section 27-1405 of this title, whichever shall be later, that its\nrequest for participation has been accepted under subdivision six of\nsection 27-1407 of this title, the tangible property credit component of\nthe brownfield redevelopment tax credit pursuant to paragraph three of\nsubdivision (a) of section twenty-one of the tax law shall only be\navailable to the taxpayer if the criteria for receiving such tax\ncomponent have been met. For those sites for which the department has\nissued a notice to the taxpayer after June twenty-third, two thousand\neight that its request for participation has been accepted under\nsubdivision six of section 27-1407 of this title, the applicable\npercentage for the site preparation credit component pursuant to\nparagraph two of subdivision (a) of section twenty-one of the tax law,\nand the on-site groundwater remediation credit component pursuant to\nparagraph four of subdivision (a) of section twenty-one of the tax law\nshall be based on the level of cleanup achieved pursuant to subdivision\nfour of section 27-1415 of this title and the level of cleanup of soils\nto contaminant-specific soil cleanup objectives promulgated pursuant to\nsubdivision six of section 27-1415 of this title, up to a maximum of\nfifty percent, as follows:\n (a) soil cleanup for unrestricted use, the protection of groundwater\nor the protection of ecological resources, the applicable percentage\nshall be fifty percent;\n (b) soil cleanup for residential use, the applicable percentage shall\nbe forty percent, except for Track 4 which shall be twenty-eight\npercent;\n (c) soil cleanup for commercial use, the applicable percentage shall\nbe thirty-three percent, except for Track 4 which shall be twenty-five\npercent;\n (d) soil cleanup for industrial use, the applicable percentage shall\nbe twenty-seven percent, except for Track 4 which shall be twenty-two\npercent.\n 4. The commissioner shall not issue a certificate of completion to any\napplicant who has been identified by the administrator of the New York\nenvironmental protection and spill compensation fund pursuant to\nsubdivision four of section 27-1407 of this title as a person\nresponsible for the cleanup and removal costs for the discharge of\npetroleum at or emanating from the brownfield site for which the\napplicant is seeking a certificate of completion where the applicant has\nnot resolved any outstanding claim at such site pursuant to article\ntwelve of the navigation law.\n 5. A certificate of completion issued pursuant to this section may be\ntransferred by the applicant or subsequent holder of the certificate of\ncompletion to a successor to a real property interest, including legal\ntitle, equitable title or leasehold, in all or a part of the brownfield\nsite for which the certificate of completion was issued. Notwithstanding\nany provision of this chapter to the contrary, a certificate of\ncompletion shall not be transferred to a responsible party. Further, a\ncertificate of completion may be modified or revoked by the commissioner\nupon a finding that:\n (a) Either the applicant, or the applicant's successors or assigns,\nhas failed to comply with the terms and conditions of the brownfield\nsite cleanup agreement;\n (b) The applicant made a misrepresentation of a material fact tending\nto demonstrate that: (i) it was qualified as a volunteer; or (ii) met\nthe criteria set forth in subdivision one-a of section 27-1407 of this\ntitle for the purpose of receiving the tangible property credit\ncomponent of the brownfield redevelopment tax credit pursuant to\nparagraph three of subdivision (a) of section twenty-one of the tax law;\n (c) Either the applicant, or the applicant's successors or assigns,\nmade a misrepresentation of a material fact tending to demonstrate that\nthe cleanup levels identified in the brownfield site cleanup agreement\nwere reached; or\n (d) There is good cause for such modification or revocation.\n 6. Upon the commissioner's determination pursuant to subdivision three\nor five of this section, the commissioner shall provide the applicant\nwith notice of such determination and notice of the right to appeal such\ndetermination. The commissioner's determination shall be final unless a\nhearing is requested by certified mail sent to the commissioner within\nthirty days after receiving notice of such determination. After such\nhearing, the commissioner shall give notice of final determination to\nsuch applicant. The commissioner may promulgate regulations to\neffectuate the purposes of this section.\n 7. Nothing herein shall be construed as abrogating any powers or\nduties of the administrator of the New York environmental protection and\nspill compensation fund as provided in article twelve of the navigation\nlaw.\n 8. A notice of such certification of completion shall be recorded and\nindexed in the office of the recording officer for the county or\ncounties where such brownfield site is located in the manner prescribed\nby article nine of the real property law within thirty days of the\nissuance of the certificate of completion if the applicant is an owner\nor within thirty days of acquiring title to the brownfield site if the\nperson is a prospective purchaser.\n