§ 43-1405 City Voluntary Cleanup Agreements.
RCNY § 43-1405
a. The following terms and conditions apply to City voluntary cleanup agreements required for eligibility in the program.
1.Description of site boundaries. The City voluntary cleanup agreement shall contain a description of the site's boundaries.
2.The enrollee shall provide access to the site and all relevant information regarding activities at the site, including all environmental studies and testing, in accordance with § 24-903(f) of the Administrative Code of the City of New York.
3.Enrollment fee. A. The enrollee shall pay an enrollment fee of one thousand dollars. An enrollment fee shall not be required unless an application is accepted and a City voluntary cleanup agreement is executed. B. The enrollment fee is payable upon execution of the City voluntary cleanup agreement by the office. The office shall not execute a City voluntary cleanup agreement without receipt of any applicable fee. C. Each payment shall be in the form of a certified check or money order made payable to the New York city office of management and budget and shall be sent to: New York City Mayor's Office of Environmental Remediation Attn.: Budget Manager 253 Broadway, 14th Fl. New York, NY 10007 The enrollee shall include the project name and project number on its check. D. The enrollee shall provide written notification within 90 days of any change in its address. E. The office may waive all or part of the enrollment fee where: i. a qualified local brownfield site is within a New York state brownfield opportunity area pursuant to § 970-r of the New York state general municipal law and its proposed development and reuse is consistent with the strategic brownfield goals established in a brownfield opportunity area plan and/or as stated in a letter to the office from a brownfield opportunity area grantee who has an executed brownfield opportunity area contract with the state; ii. the proposed development on the qualified local brownfield site is an affordable housing development; iii. the proposed development on the qualified local brownfield site is a community facility development; or iv. a contiguous property is subdivided into two or more qualified City voluntary sites for the purpose of facilitating the administration of the City voluntary cleanup program. In such case, the Office may waive the enrollment fee for any of the second and/or subsequent qualified local brownfield sites; or v. the proposed development is a City capital construction project.
4.Emergencies. The enrollee shall promptly take all appropriate action, in accordance with all applicable laws, rules and regulations, to prevent, abate, minimize and/or report any emergency, including reporting to the New York state department of environmental conservation actual or potential environmental releases. The enrollee shall immediately notify the office's project manager upon becoming aware of any emergency. Nothing in this paragraph shall be deemed to limit the authority of the office or the city to take, direct, or order all appropriate action to protect public health and the environment or to prevent, abate, respond to, or minimize an actual or threatened release from the site in accordance with applicable law. Nothing herein shall limit the enrollee's responsibility to report such conditions and to take such other action as required by city, state or federal law, rule or regulation.
5.Force majeure. No enrollee shall suffer any penalty or be subject to any proceeding or action if it cannot comply with any requirement of a City voluntary cleanup agreement to implement all or part of a remedial program as a result of a force majeure event.
6.Dispute resolution. A. The enrollee shall submit any dispute relating to the local brownfield cleanup agreement to the designated individual under the City voluntary cleanup agreement in writing no more than fifteen days after the enrollee knew or should have known of the facts that are the basis of the dispute. Such dispute shall be decided by the designated individual solely on the basis of papers submitted by the parties. The designated individual shall render a written decision and furnish a copy thereof to the enrollee. The written decision shall be the final determination of the office, unless the enrollee files a written appeal of that decision with the designated appeal individual within twenty days of receipt of that decision. B. Upon receipt of the written appeal pursuant to subparagraph A of this paragraph, the designated appeal individual shall review the record and decision. The designated appeal individual shall take one of the following actions, with written notice to the enrollee: i. remand the matter to the office's project manager for further negotiation or information, if it is determined that the matter is not ripe for review; ii. on the basis of the record as it exists before the designated appeal individual, affirm or reverse the determination of the designated individual. C. The decision of the designated appeal individual shall be the final determination of the office. D. The designated individual shall be the person designated to decide disputes, and shall be a chief of a bureau of the office. E. The designated appeal individual shall be the person designated to review dispute decisions, and shall be the director of the office or such other individual as designated by the director of the office. F. The invocation of dispute resolution shall not extend, postpone, or modify obligations with respect to any item not in dispute unless the office agrees in writing to an extension, postponement or modification. G. The office shall keep an administrative record of dispute resolution proceedings.
7.Indemnification. The enrollee shall indemnify the city, its representatives and employees from any claim, suit, action, and cost arising out of or resulting from the fulfillment or attempted fulfillment of the City voluntary cleanup agreement.
8.Notice of agreement. The enrollee shall provide written notice of a City voluntary cleanup agreement to any prospective purchaser, lessee, tenant or occupant of any interest in a qualified local brownfield site.
9.Reporting to state and federal agencies. A. If a condition that requires reporting and/or notice to a state and/or federal agency, including a release of petroleum, is found to exist on a site during the course of the remedial program, then the enrollee shall immediately notify the appropriate state and/or federal agency in accordance with applicable law and regulation and provide copies of such notification to the office. In such event the office reserves the right to modify the City voluntary cleanup agreement or terminate it in accordance with paragraph ten of this subdivision. B. If such condition renders the site a property for which state or federal law requires the investigation or remediation, or a portion of an investigation or remediation, to be supervised and/or approved by a state and/or federal agency, then the office shall review the site pursuant to 43 RCNY § 43-1404(e). If the office determines that the site is no longer eligible for the City voluntary cleanup program, then the office shall terminate the agreement, in accordance with paragraph ten of this subdivision.
10.Termination of the City voluntary cleanup agreement. A. Termination of the agreement by the enrollee. The enrollee may terminate a City voluntary cleanup agreement at any time and for any reason, provided that: i. The enrollee provides written notice to the office and site contact list at least fifteen days in advance of the termination; and ii. At the time of termination, as determined by the office, the site is in no worse condition, from an environmental and public health perspective, than before the applicant entered into the City voluntary cleanup agreement. The enrollee may seek dispute resolution within fifteen days of the effective date of the notice of determination by the office, as provided in 43 RCNY § 43-1410(d). B. Termination of the agreement by the office. The Office may terminate the City voluntary cleanup agreement for cause, including, but not limited to, if the enrollee or the site is no longer eligible for the City voluntary cleanup program, the enrollee provided information or made statements that are materially inaccurate or incomplete, or the enrollee failed to substantially comply with the agreement's terms and conditions, including, without limitation, the failure to initiate, proceed with, or complete the remedial program in accordance with its schedule. i. Prior to termination of a City voluntary cleanup agreement by the office, the office shall: (a) notify the enrollee in writing of its intention to terminate the City voluntary cleanup agreement and the reasons for the intended termination; and (b) provide the enrollee with a reasonable opportunity of thirty days to correct deficiencies. ii. The City voluntary cleanup agreement shall be terminated thirty-one days after the effective date of the office's notice, as provided in 43 RCNY § 43-1410(d), unless the enrollee: (a) seeks dispute resolution within fifteen days of the effective date of the notice; or (b) cures the deficiency within the thirty day period after the effective date of the notice. iii. If the office determines that the deficiency has been cured, the proposed termination of the City voluntary cleanup agreement shall be withdrawn. iv. If the office determines that the recipient has not proven that the deficiency has been cured, the office shall provide notice to the recipient. The recipient shall have fifteen days after the effective date of the notice, as provided in 43 RCNY § 43-1410(d), to seek dispute resolution. If the recipient does not seek dispute resolution within such fifteen day period, the City voluntary cleanup agreement shall be terminated on the sixteenth day. v. Nothing herein shall preclude the office from terminating a City voluntary cleanup agreement with less than thirty days notice if the New York state department of environmental conservation determines that the site constitutes a significant threat. Prior to terminating a City voluntary cleanup agreement pursuant to this clause, the office shall provide the enrollee with written notice, indicating the reason for the termination, and shall provide the enrollee with an opportunity to challenge in writing the finding of the office that the New York state department of environmental conservation had determined that the site constitutes a significant threat. The enrollee shall submit papers supporting such challenge to the office no later than fifteen days from the effective date of the written notice of termination, as provided in 43 RCNY § 43-1410(d). Such challenge shall be decided by the director solely on the basis of papers submitted by the enrollee. The director shall render a written decision and furnish a copy thereof to the enrollee. The director's written decision shall be the final determination of the office. C. Termination by either the enrollee or the office does not affect the enrollee's obligations to pay fees pursuant to paragraph three of this subdivision and to indemnify the city pursuant to paragraph seven of this subdivision, until and including the date of termination.
11.Additional terms and conditions. The office may require that a City voluntary cleanup agreement include additional terms and/or conditions. b. The City voluntary cleanup agreement shall be binding while in effect on each party, its successors and assignees. No change in the ownership or corporate or business status of any party or of the site shall alter any signatory's responsibilities under the City voluntary cleanup agreement. (Amended City Record 12/28/2015, eff. 1/27/2016; amended City Record 4/3/2018, eff. 5/3/2018)
