N.Y. Comp. Codes R. & Regs. Tit. 6 §§ 375-1.5

Current through Register Vol. 46, No. 45, November 2, 2024

Section 375-1.5 - Orders, agreements and state assistance contracts

(a) Notice of order, agreement or State assistance contract.

(1) Where the remedial party owns the remedial site, such party shall:

(i) within 30 days of execution by the commissioner of the order, agreement or State assistance contract, record a notice of such instrument in the office of the recording officer for the county or counties where the remedial site is situated in the manner prescribed by RPL article 9; and

(ii) provide written notice of the order, agreement or State assistance contract, and the status of the remedial program, to any prospective purchaser or lessee of any interest in any portion of the remedial site.

(2) Where the remedial party does not own the remedial site:

(i) the remedial party shall, within 30 days of execution by the commissioner of the order, agreement or State assistance contract, provide written notice of such instrument to the owner of the remedial site;

(ii) the owner of the remedial site shall, within 30 days of receipt of such notice from the remedial party, record a notice of such instrument in the office of the recording officer for the county or counties where the remedial site is situated in the manner prescribed by RPL article 9; and

(iii) the owner of the remedial site shall provide written notice of the order, agreement or State assistance contract, and the status of the remedial program, to any prospective purchaser or lessee of any interest in any portion of the remedial site.

(b) In addition to such further terms and conditions as the department may require in the order, agreement or State assistance contract, the following provisions apply when a remedial party is implementing a remedial program under an order, agreement or State assistance contract with the department. The order, agreement or State assistance contract shall be binding on each party, its successors and assignees while in effect. No change in the ownership or corporate or business status of any party, or of the site shall alter any signatory's responsibilities under this order, agreement or State assistance contract.

(1) Emergencies. The remedial party shall notify the department's project manager by noon of the next business day, upon knowledge of any condition posing an emergency as set forth at section 375-1.2(n) of this Subpart. In the event that any action or occurrence under the order, agreement or State assistance contract causes or threatens an emergency situation, the remedial party shall promptly take all appropriate action to prevent, abate, or minimize such emergency in accordance with applicable law. Nothing in this paragraph shall be deemed to limit the authority of the department to take, direct, or order all appropriate action to protect public health and the environment or to prevent, abate, respond to, or minimize an actual or threatened release from the site.

(2) Dispute resolution.

(i) The remedial party shall submit any dispute relating to the order, agreement or State assistance contract to the designated individual in writing no more than 15 days after it knew or should have known of the facts which are the basis of the dispute. The designated individual shall render a written decision and furnish a copy thereof to the remedial party, which shall be the final agency determination, unless the remedial party files a written appeal of that decision with the designated appeal individual within 20 days of receipt of that decision.

(ii) Upon receipt of the written appeal pursuant to subparagraph (i) of this paragraph, the designated appeal individual, will review the record and decision. The designated appeal individual will take one of the following actions, with written notice to the remedial party:

(a) remand the matter to the program staff for further negotiation or information if it is determined that the matter is not ripe for review;

(b) determine that there is no need for further action, and that the determination of the designated individual is confirmed; or

(c) make a determination on the record as it exists.

(iii) The decision of the designated appeal individual shall be the final agency decision. Such final agency decision may be reviewed pursuant to CPLR, article 78.

(iv) The designated individual to:

(a) hear disputes is a bureau director in the division of environmental remediation; and

(b) to review dispute decisions is the assistant director of the division of environmental remediation.

(v) The invocation of dispute resolution shall not extend, postpone, or modify obligations with respect to any item not in dispute unless or until either:

(a) the department agrees in writing to an extension, postponement or modification; or

(b) a court determines otherwise.

(vi) The department shall keep an administrative record of dispute resolution proceedings.

(3) Payment of State costs.

(i) Within 45 days after receipt of an itemized invoice from the department, the remedial party shall pay to the department a sum of money which shall represent reimbursement for State costs, which shall include costs associated with negotiating the order or agreement, and all costs associated with the order or agreement up to and including the date upon which the certificate of completion is issued, the department approves the final site management report, or the order or agreement is terminated, whichever is later. If the remedial party is also responsible for reimbursement of past State costs, associated with remedial activities conducted at the site such reimbursement must also be made within 45 days after the receipt of an itemized invoice from the department.

(ii) The invoice shall be calculated and documented as follows:

(a) personal service costs shall be documented by reports of direct personal service;

(b) approved agency fringe benefit and indirect cost rates shall be applied;

(c) non-personal service costs shall be summarized by category of expense (e.g., supplies, materials, travel, contractual) and shall be documented by expenditure reports; and

(d) except as otherwise provided by statute or regulation, the department is not obligated to provide any other documentation of costs.

(iii) Each such payment shall be made payable to the department and shall be sent to: Bureau of Program Management, Division of Environmental Remediation, NYSDEC, 625 Broadway, Albany, NY 12233-7012.

(iv) The remedial party shall provide written notification within 90 days of any change in its address.

(v) A remedial party may contest, in writing, invoiced costs if it believes:

(a) the cost documentation contains clerical, mathematical, or accounting errors; or

(b) the costs are not related to the State's activities at the site.

(vi) If a remedial party objects to an invoiced cost, such party shall pay all costs not objected to within the 45-day time frame and shall, within 30 days of receipt of an invoice, identify in writing all costs objected to and identify the basis of the objection. This objection shall be filed with the division of environmental remediation director who shall have the authority to waive the obligation to pay disputed costs. Within 45 days of the department's determination of the objection, which determination shall constitute a final agency decision, the remedial party shall pay to the department the amount which the division of environmental remediation director determines is owed; provided, however, that such payment shall be stayed until 45 days after the final determination of any challenge which is brought pursuant to article 78 of the Civil Practice Law and Rules.

(4) Force majeure.

(i) No remedial party shall suffer any penalty or be subject to any proceeding or action if it cannot comply with any requirement of an order, agreement or State assistance contract to implement all or part of a remedial program if the failure to comply is the result of a force majeure event. A force majeure event shall include acts of God, work stoppages due to labor disputes or strikes, fires, explosions, epidemics, riots, war rebellion, sabotage or any other fact or circumstance beyond the reasonable control of the remedial party. If a failure of or delay in performance by the remedial party results from the occurrence of a force majeure event, the delay shall be excused and the time for performance extended by a period equivalent to the time lost because of the force majeure event, if and to the extent that the:

(a) delay or failure was beyond the control of the remedial party affected and not due to its fault or negligence;

(b) delay or failure was not extended because of the remedial party's failure to use all reasonable diligence to overcome the obstacle or to resume performance immediately after such obstacle was overcome;

(c) remedial party provides notice to the department within five days of the onset of the event, that it is invoking the protection of this provision; and

(d) notice shall include the measures taken and to be taken to prevent or minimize any delays and may request an appropriate extension or modification as appropriate.

(ii) The remedial party has the burden of proving by a preponderance of the evidence that an event qualifies as a force majeure event under this paragraph.

(5) Resolution of liability.

(i) To the extent authorized under 42 USC section 9601, et seq.; GOL section 15-108, and any other applicable law, the remedial party shall be deemed to have entered into an administrative settlement of liability and to have resolved its liability to the State for purposes of contribution protection provided by 42 USC section 9613(f)(2) for "matters addressed" pursuant to and in accordance with such order, agreement or State assistance contract.

(ii) "Matters addressed" in the order, agreement or State assistance contract shall mean all response actions taken by the remedial party to implement the order, agreement or State assistance contract for the site and all response costs incurred and to be incurred by any person or party in connection with the work performed under such order, agreement or State assistance contract, which costs have been paid by the remedial party, including reimbursement of State costs pursuant to the order, agreement or State assistance contract.

(iii) Furthermore, to the extent authorized under 42 USC section 9613(f)(3)(B), by entering into such administrative settlement of liability, if any, for some or all of the response action and/or for some or all of the costs of such action, the remedial party is entitled to seek contribution from any person except those who are entitled to contribution protection under 42 USC section 9613(f)(2) or, if applicable, ECL 27-1421.

N.Y. Comp. Codes R. & Regs. Tit. 6 §§ 375-1.5