N.Y. Comp. Codes R. & Regs. Tit. 6 §§ 375-4.3

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

Section 375-4.3 - Eligibility

(a) Eligible site. A site is eligible if all of the following apply:

(1) It is not listed in the Registry as a class "1" or "2" site at the time of application.

(2) It is owned by the municipality. A municipality is considered to own the site for purposes of applying for State assistance under this Subpart if:

(i) the municipality owns the site;

(ii) the municipality jointly owns a site with a not-for-profit corporation as defined at N PCL 102.a(5) or an authorized foreign not-for-profit corporation as defined at N PCL 102 (a)(7); or

(iii) for an investigation application, the municipality has been obtained, prior to the department's execution of the State assistance contract, an order granting temporary incidents of ownership to the municipality.

(3) The site contamination is attributable to an on-site source.

(b) Eligible municipality. A municipality is eligible if it:

(1) did not generate, transport or dispose of, nor arranged for nor caused the generation, transportation or disposal of, any contaminant on the site. For these purposes, a municipality is not considered a generator, transporter, or arranger:

(i) for having rendered care, assistance, or advice in the course of an incident creating a danger to public health or welfare or to the environment as a result of any release of a contaminant or the threat of same; or

(ii) for having leased a site to another party that generated, transported or disposed of, or that arranged for or caused the generation, transportation or disposal of, any contaminant on such site unless such municipality knew that such other party generated, transported or disposed of, or arranged for or caused the generation, transportation or disposal of, such contaminant and failed to take any action to remediate, or cause the remediation of such contaminant;

(2) did not take title to a site from a municipality not eligible to apply for State assistance under ECL article 56, title 5 by reason of its having generated, transported or disposed of, or having arranged for or caused the generation, transportation or disposal of, any contaminant on the site, and either municipality is a local public authority or public benefit corporation, or improvement district and title was acquired on or after June 6, 1996.

(c) Eligible project. The department will determine the eligibility of an investigation project based upon the following criteria set forth in ECL 56- 0505(1):

(1) benefit to the environment realized by the expeditious remediation of the property proposed to be subject to such project;

(2) economic benefit to the State by the expeditious remediation of the property proposed to be subject to such project;

(3) potential opportunity of the property proposed to be subject to such project to be used for public recreational purposes;

(4) real property is located in a designated brownfield opportunity area set forth in section GML 970-r; and

(5) opportunity for other funding sources to be available for the remediation of such property, including, but not limited to, enforcement actions against responsible parties (other than the municipality to which State assistance was provided under this title; or a successor in title, lender, or lessee who was not otherwise a responsible party prior to such municipality taking title to the property), State assistance payments set forth in ECL article 27, title 13, and the existence of private parties willing to remediate such property using private funding sources. Highest priority shall be granted to projects for which other such funding sources are not available.

(d) Eligible costs. The costs set forth in paragraphs (1) through (7) of this subdivision, within the limits of the SFL, are eligible for being considered in the calculation of State assistance under ECL article 56, title 5. The reimbursement rates for these eligible costs are set forth below.

(1) Costs eligible at a reimbursement rate of up to 90 percent are those:

(i) authorized by the municipality and the department that are directly related to the project's implementation;

(ii) to implement department-approved investigation work plans;

(iii) to implement department-approved on-site remediation work plans, including those remediation costs incurred with the department's prior approval after the record of decision is issued;

(iv) incurred pursuant to implement activities identified by the record of decision with the department's approval that would, in a cost-effective manner, address an off-site source of contamination to the site in order to prevent further contamination of the site, rather than mitigate the effect of that off-site contamination on the use of the site;

(v) to implement the measures necessary to satisfy the requirements of this Subpart; or

(vi) incurred for the implementation of an active treatment remedy for up to five years after commencement of the remedy.

(2) The eligible costs identified in paragraph (1) or (7) of this subdivision incurred to investigate or remediate off-site contamination attributable to the environmental restoration project may be reimbursed at a rate of up to 100 percent.

(3) The costs to demolish structures and dispose of the resulting demolition debris are eligible, at a reimbursement rate of up to 50 percent. In no event, however, will the department reimburse the cost of a project consisting exclusively, or almost exclusively, of demolition of a structure.

(4) Costs associated with the disposal of any demolition debris from paragraph (3) of this subdivision that must be disposed in a disposal facility subject to Part 373 of this Title may be reimbursed at rate of up to 90 percent.

(5) The cost for asbestos abatement projects that consist of any measure designed to reduce exposure to, remove, or eliminate asbestos or asbestos-containing material from inside a structure are eligible, at a reimbursement rate of up to 50 percent. In no event, however, will the department reimburse:

(i) the cost of a project consisting exclusively, or almost exclusively, of asbestos abatement inside a structure; or

(ii) greater than 50 percent of the cost of the asbestos abatement activities inside a structure.

(6) Costs associated with the disposal of any asbestos as set forth in paragraph (5) of this subdivision above may be reimbursed at a rate of up to 90 percent provided that the asbestos:

(i) must be disposed in a disposal facility subject to Part 373 of this Title; or

(ii) is present in an environmental media outside of a structure.

(7) The eligibility and reimbursement rate of any cost a municipality may incur that is not identified in this subdivision, may be considered on a case-specific basis. In making such determinations, the department will consider whether:

(i) incurring the cost is necessary for implementation of the approved project;

(ii) it is a reasonable cost that was incurred under contract or municipal force account pre-approved by the department, provided, however, that costs incurred for legal services are eligible only to the extent that they are necessary for actual project implementation; and

(iii) it is properly documented.

(e) Ineligible costs. The following costs, which are ineligible for being considered in the calculation of State assistance under ECL article 56, title 5, are those incurred:

(1) before the start date identified in the State assistance contract, including those to prepare and submit the State assistance application and those to procure and retain legal, engineering, and other services to undertake the project;

(2) to undertake site management at the site after construction of the department-approved remedy, except those costs identified in subparagraph (d)(1)(v) of this section;

(3) to redevelop the site that are not necessary to remediate the site;

(4) that are reimbursed by, or recovered from, any other responsible party or insurance carrier or the Federal government;

(5) outside the scope of, or in violation of, the State assistance contract;

(6) in violation of applicable statutes or regulations;

(7) for which appropriations are not available; or

(8) for lead abatement projects consisting of measures designed to reduce exposure to lead-contaminated dust or paint, including any treatment, disposal, or testing associated with such measures, provided that costs associated with lead abatement projects consisting of measures designed to reduce lead in or on environmental media are eligible.

(f) If the site is already subject to an existing enforceable Federal, State, or local requirement reflected in an order, agreement or State assistance contract directing a remedial party other than the municipality to investigate or remediate the site, the department will consider eligible for State assistance only that portion of the investigative or remedial tasks which such order, agreement or State assistance contract does not cover.

N.Y. Comp. Codes R. & Regs. Tit. 6 §§ 375-4.3