N.Y. Comp. Codes R. & Regs. Tit. 6 §§ 375-3.5

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

Section 375-3.5 - Brownsfield site cleanup agreements

(a) In addition to such further terms and conditions as the department may require in the brownfield site cleanup agreement, the brownfield site cleanup agreement shall include the description of the site boundaries and be deemed to include, and the applicant shall comply with, all of the provisions set forth in section 375-1.5(b) of this Part and the following:

(1) 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 brownfield site cleanup agreement 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) Termination of the agreement by the applicant. The applicant may terminate a brownfield site cleanup agreement at any time and for any reason, provided that:

(1) the applicant provides written notice to the department at least 15 days in advance of the termination;

(2) the termination does not pose an immediate threat to public health or the environment; and

(3) at the time of termination, the site is in no worse condition, from an environmental and public health perspective, than before the applicant entered into the brownfield site cleanup agreement.

(c) Termination of the agreement by the department. The department may terminate the brownfield site cleanup agreement for cause, including, but not limited to, if the applicant fails to substantially comply with the agreement's terms and conditions, including, without limitation, the failure to initiate, proceed with, or complete the remedial program in accordance with its schedule.

(1) Prior to termination of an agreement by the department, the department shall:

(i) notify the applicant in writing of its intention to terminate the agreement and the reasons for the intended termination;

(ii) provide the applicant with a reasonable opportunity of not less than 30 days to correct deficiencies.

(2) The brownfield site cleanup agreement shall be terminated 31 days after the effective date, as set forth in section 375-1.11(e) of this Part, of the department's notice, unless the remedial party:

(i) seeks dispute resolution within 15 days of the effective date of the notice; or

(ii) cures the deficiency within the 30-day period after the effective date of the notice.

(3) Nothing herein shall preclude the department from terminating an agreement in less than 30 days' notice if the department determines that information provided or certifications made by the applicant are materially inaccurate or incomplete. Prior to terminating an agreement pursuant to this paragraph, the department shall give the applicant written notice, indicating the reason for the termination, and an opportunity to demonstrate that such information or certifications were materially accurate and complete.

(d) Termination by either the applicant or the department does not affect the applicant's obligations to pay State costs and provide indemnification pursuant to section 375-3.5(a)(1) of this Subpart until and including the date of termination.

(e) The department shall not consider the applicant an operator of such brownfield site based solely upon execution or implementation of such brownfield site cleanup agreement for purposes of remediation liability.

(f) The applicant, effective upon the execution of the brownfield site cleanup agreement, shall be deemed to have waived any right such applicant has or may have to make a claim against the State of New York pursuant to article 12 of the Navigation Law with respect to the brownfield site, and a release of the New York Environmental Protection and Spill Compensation Fund from any and all legal or equitable claims or causes of action that such applicant may have as a result of entering into a brownfield site cleanup agreement or fulfilling a brownfield site remedial program at such site.

N.Y. Comp. Codes R. & Regs. Tit. 6 §§ 375-3.5