N.Y. Environmental Conservation Law § 27-1409: Brownfield site cleanup agreement

§ 27-1409. Brownfield site cleanup agreement.

The agreement shall include, but not be limited to, the following

provisions:

1. One describing the boundaries of the real property that is subject

to the brownfield site cleanup agreement;

2. One requiring: (a) the participant to pay for state costs,

including the recovery of state costs incurred before the effective date

of such agreement; provided, however, that such costs may be based on a

reasonable flat-fee for oversight, which shall reflect the projected

future state costs incurred in negotiating and overseeing implementation

of such agreement; and

(b) with respect to a brownfield site which the department has

determined constitutes a significant threat to the public health or

environment the department may include a provision requiring the

applicant to provide a technical assistance grant, as described in

subdivision four of section 27-1417 of this title and under the

conditions described therein, to an eligible party in accordance with

procedures established under such program, with the cost of such a grant

incurred by a volunteer serving as an offset against such state costs;

3. One setting forth a process for resolving disputes arising from the

evaluation, analysis, and oversight of the implementation of the work

plan as described;

4. One requiring an indemnification provision which holds the state

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 agreement, except for those claims, suits,

actions, and costs arising from the state's gross negligence or willful

or intentional misconduct;

5. One authorizing the department to terminate a brownfield site

cleanup agreement at any time during the implementation of such

agreement if the applicant implementing such agreement fails to

substantially comply with such agreement's terms and conditions;

6. One stating that the department may exempt the applicant from the

requirement to obtain any state or local permit or other authorization

pursuant to section 27-1429 of this title;

7. One stating that 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;

8. One requiring that the applicant conduct investigation and/or

remediation activities pursuant to one or more work plans which are

approved by the department;

9. One requiring the preparation and implementation of a citizen

participation plan consistent with the requirements of this title as

soon as possible following execution of the agreement but no later than

prior to the preparation of a draft remedial investigation plan by the

applicant which shall include a description of citizen participation

activities already performed by the applicant and/or the department;

10. One requiring a waiver by the applicant, effective upon the

execution of the brownfield site cleanup agreement, any right such

applicant has or may have to make a claim against the state of New York

pursuant to article twelve 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; and

11. The inclusion of other conditions considered necessary by the

department concerning the effective and efficient implementation of this

title;

12. Nothing in this section shall prohibit or limit the department

from terminating a brownfield site cleanup agreement at any time during

its implementation if the applicant fails to comply substantially with

such agreement's terms and conditions.

13. After acceptance by the department, an executed brownfield cleanup

agreement shall be submitted and returned to the department with payment

of a nonrefundable program fee in the amount of fifty thousand dollars,

which shall be deposited to the credit of the oversight and assistance

account of the hazardous waste remedial fund pursuant to section

ninety-seven-b of the state finance law. The department shall waive such

fee upon a demonstration of financial hardship by the applicant. To

demonstrate financial hardship the applicant must show but for the

program fee, remediation of the brownfield site would not be

economically viable. When evaluating financial hardship, the department

will consider whether the applicant has waived their rights to tax

credits, whether the location of the proposed brownfield site is in a

disadvantaged community or the proposed brownfield site is being

developed as an affordable housing project, the assets and income of the

applicant, and any other factors deemed relevant. The department shall

establish regulations governing the demonstration of financial hardship.

Program fees shall not qualify for any of the tax credits available for

brownfield sites under sections twenty-one, twenty-two, and twenty-three

of the tax law.