§ 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.