N.Y. Comp. Codes R. & Regs. Tit. 6 §§ 375-4.5

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

Section 375-4.5 - State assistance contracts

(a) 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 section 375-1.5(b)(1) and (4) of this Part.

(b) The State assistance contract will also be deemed to include, and the municipality shall also comply with, the following provisions:

(1) 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 conditions that:

(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 a certificate of completion, an environmental restoration project has not met the remediation objectives in accordance with the department's record of decision for the site, due to the municipality's disposition of all or a portion of such property, such municipality shall be liable to ensure that such objectives are attained 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;

(iv) any engineering or institutional controls, or both such controls, that the department may deem necessary to allow the contemplated use of the site to proceed will be imposed and maintained. The municipality will cause the development of a plan, and submit such plan to the department for its review and approval, to ensure that such controls are continually maintained in the manner the department may require. The municipality and its lessees and successors in title are prohibited from challenging the imposition or continuance of such controls, and failure to implement the department-approved plan or to maintain such controls constitute a violation of the State assistance contract and for the duration of such failure, the liability protections and benefits set forth in ECL 56-0509 will have no force and effect;

(v) the department will have access to the site, at times appropriate to the circumstances and subject to the site health and safety plan, for purposes of ensuring that:

(a) the site is investigated or remediated in accordance with the department-approved plans for the remedial investigation or remediation;

(b) the site management plan, where necessary for the remedy, including the operation, maintenance, and monitoring requirements identified in section 375- 4.8(e)(8) of this Subpart is being implemented satisfactorily;

(c) the engineering and/or institutional controls, where necessary for the remedy, identified in section 375-4.8(e)(8) of this Subpart are continually maintained in the manner the department may require; and

(d) the department may carry out any measures necessary to return the site to a condition sufficiently protective of public health, in accordance with ECL 56-0509(4);

(vi) neither the municipality nor any of its lessees or successors in title shall interfere with such access; and

(vii) the municipality must make this binding commitment by means of an environmental easement and/or lease provisions, which provide that the department (in addition to the municipality) may enforce the environmental easement and/or lease provisions, and that the municipality shall record an environmental easement in accordance with the requirements of ECL article 71, title 36 within 45 days of the receipt of notice from the department that the environmental easement must be recorded.

(2) The municipality must revise any existing leases concerning the site, or any portion of it, to ensure that the site's use will be suspended upon a department determination that such use cannot continue with sufficient protection of the public health until the conditions giving rise to such determination are addressed to the department's satisfaction. The municipality must provide in such lease for the department to have access to the site, at times appropriate to the circumstances and subject to the site's health and safety plan, if any, for purposes of ensuring that:

(i) the site is investigated and remediated in accordance with department-approved plans;

(ii) the site management plan, including the operation, maintenance, and monitoring requirements identified in section 375-4.8(e)(8) of this Subpart is being implemented satisfactorily;

(iii) the department may carry out any measures necessary to return the site to a condition sufficiently protective of public health, in accordance with ECL 56-0509(4); and

(iv) such lease shall provide that neither the municipality nor any of its lessees or successors in title shall interfere with such access.

(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 of the recalculation. If the municipality fails to make such repayment within 60 days of notification, the department may take measures provided for by statute relating to the recovery of unrepaid State assistance.

(4) In the event that any monies received from the disposition of the site exceed the municipality's cost of such site, including taxes owed to the municipality upon acquisition, and the municipality's cost of the environmental restoration project, the amount necessary to reimburse the State for the State assistance provided to the municipality under this Part shall be paid to the State for deposit into the environmental restoration project account of the hazardous waste remedial fund established under SFL 97-b.

(5) The department will notify the municipality 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;

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

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

(6) Such notice shall set forth in writing the reasons for such determination, and will afford the municipality a reasonable opportunity of not less than 30 days to cure such failure. The department will suspend payments under the State assistance contract until the municipality has cured the failure. The department may terminate the State assistance contract if the failure is not cured within the time provided.

(7) While the municipality may make efforts to recover response costs from 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.

(8) The municipality must assist the department or other State agencies in compelling responsible parties to contribute to the cost of the project at the site, such assistance encompassing, at a minimum, the provision of all information which the municipality has or acquires during the course of project implementation, and thereafter, related to the identification of the responsible parties for the contaminants disposed at, or released from, the site. Further, the municipality shall not perform any act or omission which compromises the cost recovery efforts of the department or other State agencies.

(9) Indemnification. The remedial party shall indemnify and save harmless the department and the State of New York from and against all losses from claims, demands, payments, suits, actions, recoveries and judgments, of every nature and, description brought or recovered against it by reason of any acts or omissions of the remedial party, its agents, employees, or subcontractors in the performance of this order, agreement or State assistance contract which are shown to have been the result of negligence, gross negligence or reckless, wanton or intentional misconduct.

N.Y. Comp. Codes R. & Regs. Tit. 6 §§ 375-4.5