§ 27-1409 — Brownfield site cleanup agreement

§ 27-1409. Brownfield site cleanup agreement.\n The agreement shall include, but not be limited to, the following\nprovisions:\n 1. One describing the boundaries of the real property that is subject\nto the brownfield site cleanup agreement;\n 2. One requiring: (a) the participant to pay for state costs,\nincluding the recovery of state costs incurred before the effective date\nof such agreement; provided, however, that such costs may be based on a\nreasonable flat-fee for oversight, which shall reflect the projected\nfuture state costs incurred in negotiating and overseeing implementation\nof such agreement; and\n (b) with respect to a brownfield site which the department has\ndetermined constitutes a significant threat to the public health or\nenvironment the department may include a provision requiring the\napplicant to provide a technical assistance grant, as described in\nsubdivision four of section 27-1417 of this title and under the\nconditions described therein, to an eligible party in accordance with\nprocedures established under such program, with the cost of such a grant\nincurred by a volunteer serving as an offset against such state costs;\n 3. One setting forth a process for resolving disputes arising from the\nevaluation, analysis, and oversight of the implementation of the work\nplan as described;\n 4. One requiring an indemnification provision which holds the state\nharmless from any claim, suit, action, and cost of every name and\ndescription arising out of or resulting from the fulfillment or\nattempted fulfillment of the agreement, except for those claims, suits,\nactions, and costs arising from the state's gross negligence or willful\nor intentional misconduct;\n 5. One authorizing the department to terminate a brownfield site\ncleanup agreement at any time during the implementation of such\nagreement if the applicant implementing such agreement fails to\nsubstantially comply with such agreement's terms and conditions;\n 6. One stating that the department may exempt the applicant from the\nrequirement to obtain any state or local permit or other authorization\npursuant to section 27-1429 of this title;\n 7. One stating that the department shall not consider the applicant an\noperator of such brownfield site based solely upon execution or\nimplementation of such brownfield site cleanup agreement for purposes of\nremediation liability;\n 8. One requiring that the applicant conduct investigation and/or\nremediation activities pursuant to one or more work plans which are\napproved by the department;\n 9. One requiring the preparation and implementation of a citizen\nparticipation plan consistent with the requirements of this title as\nsoon as possible following execution of the agreement but no later than\nprior to the preparation of a draft remedial investigation plan by the\napplicant which shall include a description of citizen participation\nactivities already performed by the applicant and/or the department;\n 10. One requiring a waiver by the applicant, effective upon the\nexecution of the brownfield site cleanup agreement, any right such\napplicant has or may have to make a claim against the state of New York\npursuant to article twelve of the navigation law with respect to the\nbrownfield site, and a release of the New York environmental protection\nand spill compensation fund from any and all legal or equitable claims\nor causes of action that such applicant may have as a result of entering\ninto a brownfield site cleanup agreement or fulfilling a brownfield site\nremedial program at such site; and\n 11. The inclusion of other conditions considered necessary by the\ndepartment concerning the effective and efficient implementation of this\ntitle;\n 12. Nothing in this section shall prohibit or limit the department\nfrom terminating a brownfield site cleanup agreement at any time during\nits implementation if the applicant fails to comply substantially with\nsuch agreement's terms and conditions.\n 13. After acceptance by the department, an executed brownfield cleanup\nagreement shall be submitted and returned to the department with payment\nof a nonrefundable program fee in the amount of fifty thousand dollars,\nwhich shall be deposited to the credit of the oversight and assistance\naccount of the hazardous waste remedial fund pursuant to section\nninety-seven-b of the state finance law. The department shall waive such\nfee upon a demonstration of financial hardship by the applicant. To\ndemonstrate financial hardship the applicant must show but for the\nprogram fee, remediation of the brownfield site would not be\neconomically viable. When evaluating financial hardship, the department\nwill consider whether the applicant has waived their rights to tax\ncredits, whether the location of the proposed brownfield site is in a\ndisadvantaged community or the proposed brownfield site is being\ndeveloped as an affordable housing project, the assets and income of the\napplicant, and any other factors deemed relevant. The department shall\nestablish regulations governing the demonstration of financial hardship.\nProgram fees shall not qualify for any of the tax credits available for\nbrownfield sites under sections twenty-one, twenty-two, and twenty-three\nof the tax law.\n