N.Y. Environmental Conservation Law § 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.