2023 New York Laws › ENV - Environmental Conservation › Article 27 - Collection, Treatment and Disposal of Refuse and Other Solid Waste › Title 14 - Brownfield Cleanup Program › 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.