N.Y. Comp. Codes R. & Regs. Tit. 6 §§ 375-2.5

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

Section 375-2.5 - Orders and state assistance contracts

(a) Orders.

(1) The commissioner may order a responsible party to develop and implement a remedial program for a site after providing notice and an opportunity for hearing to the alleged responsible party and determining such person is a responsible party. A hearing required by ECL 27-1313(4) shall be conducted pursuant to the procedures of Part 622 of this Title; provided that anything in said Part 622 of this Title to the contrary notwithstanding, there shall be no third-party, counterclaim, or cross-claim practice.

(2) The commissioner may order a responsible party to develop and implement a remedial program for a site upon the consent of such responsible party without providing notice and an opportunity for hearing.

(3) The order for a remedial program developed as set forth in this subdivision shall include all provisions set forth in section 375-1.5(b) of this Part and also include the following provision:

(i) Indemnification. Unless otherwise approved by the department, a remedial party shall indemnify and hold the State, the trustee of the State's natural resources, and their representatives and employees harmless from any claim, suit, action, and cost of every name and description arising out of or resulting from the fulfillment or attempted fulfillment of the remedial program except for those claims, suits, actions, and costs arising from the gross negligence or willful or intentional misconduct by the State of New York, and/or its representatives and employees during the course of any activities conducted pursuant to the remedial program. The department shall provide written notice no less than 30 days prior to commencing a lawsuit seeking indemnification.

(b) State assistance contracts for municipalities.

(1) Upon approval by the department of an application for assistance under section 375-2.3 of this Subpart, the municipality must enter into a State assistance contract with the department. The State assistance contract will be subject to approval by the State Comptroller and, as to form, by the Attorney General, and:

(i) in addition to such further terms and conditions as the department may require in the State assistance contract, the State assistance contract shall be deemed to include, and the municipality shall comply with, all of the provisions set forth in sections 375-1.5(b)(1) and (4) and 375-4.5(b)(9) of this Part;

(ii) include the terms and conditions set forth in paragraphs (2) through (6) of this subdivision; and

(iii) shall be binding upon the municipality.

(2) The municipality must not enter into, or renew, a lease concerning, nor transfer title to, the site, or any portion of it, until the municipality binds itself and its lessees and its successors in title, to the following:

(i) the site is remediated under department oversight in accordance with the department's record of decision and that the site, or any subdivided parcel within the site, is not used for any purpose until it is so remediated, except that the site may continue to be used for the purpose for which it is being used as of the effective date of the State assistance contract, if the department determines that the existing state of contamination does not pose a risk sufficient to prohibit such use from continuing, giving due regard for public health and environmental protection;

(ii) if, before the department issues the certificate of completion, the municipality, or a successor in title, wishes to transfer title to or subdivide the site into separate parcels, it may do so after it commits in a document, approved by the department in form and substance, to remediate all of the site in accordance with the department's record of decision, within such time period as the department may require;

(iii) the site will not be used for any purpose requiring a level of contamination lower than that serving as the basis for the remediation identified in the record of decision; and

(iv) any engineering and/or institutional controls, that the department may deem necessary to allow the contemplated use of the site to proceed will be imposed, implemented, operated, monitored and maintained in accordance with the department approved site management plan. The municipality:

(a) will develop and submit to the department for its review and approval, a site management plan to ensure that such controls are continually maintained in the manner the department may require; and

(b) are prohibited, as are its lessees and successors in title, from challenging the imposition or continuance of such controls. The failure to implement the approved remedial work plan and site management plan or to maintain such controls shall constitute a violation of the State assistance contract.

(3) If any responsible party payments and/or other responsible party consideration become available to the municipality which were not included when the State share was calculated for the State assistance contract, the municipality shall immediately notify the department of such availability and the department shall recalculate the amount of the State share. The department has the option of either reducing the contract amount if the project is ongoing or requesting reimbursement of the amount owed to the State, for deposit in an appropriate account. The State will calculate the amount owed by the municipality based on the recalculated State assistance amount and the amount the State has reimbursed the municipality as of the date the recalculation is made. If the municipality fails to make such repayment within 60 days of notification, the department may take measures provided by statute relating to the recovery of State assistance. The municipality will immediately notify the department in writing of its receipt of reimbursement from other sources for any expenditure for which State assistance may be provided under the State assistance contract.

(4) The department will suspend payments under the State assistance contract until the municipality has cured the failure, if the commissioner determines that the municipality:

(i) has failed to comply with any of the requirements of applicable State or Federal laws and regulations;

(ii) has failed to comply with any of the requirements of the State assistance contract;

(iiii) without good cause, as determined by the department, the municipality has failed to initiate, proceed with, or complete the department-approved project in accordance with its schedule; or

(iv) has changed the department approved project or any portion thereof without the department's prior written approval.

(5) The department may terminate the State assistance contract if the failure, as set forth in paragraph (4) of this subdivision, is not cured in a reasonable time.

(6) While the municipality may make efforts to recover response costs from potentially responsible parties, it must provide the department with timely advance written notice of any negotiations, proposed agreements, proposed settlements or legal action by which recovery is sought and must not commence such legal action nor enter into any such proposed agreement or settlement without prior written department approval.

(7) For purposes of a State assistance contract, the cost of an approved project shall include appraisal, surveying, engineering and architectural services, plans and specifications, consultant and legal services, construction and other direct expenses incident to such project less any Federal or State funds, other than those provided pursuant to this article, for such project received or to be received.

(c) State assistance contract for technical assistance grants.

(1) The State assistance contract for technical assistance grants shall contain such terms and conditions as the commissioner may deem to be appropriate.

(2) The terms and conditions set forth in section 375-1.5(b) of this Part and subdivision (b) of this section will not apply to a State assistance contract for technical assistance grants.

N.Y. Comp. Codes R. & Regs. Tit. 6 §§ 375-2.5