I. Definitions for purposes of the voluntary cleanup program:

"PRP:" a party responsible under law to remediate contamination disposed on or released from a property.



"non-PRP:" someone who is not a PRP. Also includes the present owner if that owner purchased the property in an already contaminated condition and is not otherwise a PRP with respect to the contamination's remediation.



A. Covered contamination:



The program covers any contaminated property located in the State the remediation of which the federal government does not have lead responsibility.



B. Eligible participants



Anyone other than a PRP for property that is:



A Class 1 or 2 Registry site



A TSDF subject to corrective action or closure under permit or order issued under the Department's hazardous waste management regulatory ("RCRA") program



a TSDF operating under interim status under the RCRA program that is subject to enforcement action leading to the issuance of an order containing a corrective action schedule (note: interim status facilities which have closed, or which have desire to close, the regulated unit, before receiving a Part 373 permit are eligible to participate in the Department's Voluntary Remedial Program)



subject to any other "enforcement action" requiring the PRP to remove or remediate a hazardous substance. For this purpose, an "enforcement action" commences against a PRP:



under state law, upon issuance of a notification of violation or upon commencement of enforcement under Article 71 of the Environmental Conservation Law or upon issuance of any notification under Article 27, Title 13 of the Environmental Conservation Law that the PRP is a PRP for the property in question or upon issuance of an accusatory instrument under the Criminal Procedure Law.



under federal law the purpose of which includes requiring the subject of the action to remove or remediate hazardous substance, upon issuance of any notification that requires the removal or remediation of hazardous substances that is issued pursuant to federal law.



C. The Commitment Document



1. Form of the Commitment Document: the volunteer's choice--either a consent order or an agreement.



2. The Commitment Document's Contents:



a. the commitment: investigation only; remediation only; combination--volunteer's choice



b. cost reimbursement: non-PRP volunteer--oversight only; PRP: past and oversight



3. Cleanup Objective:



a. On site: safe for the contemplated use, from a human health and environmental protection perspective [RE TAGM 4046: until VCP-specific soil cleanup guidance is issued, TAGM 4046 will guide soil cleanup level determinations. However, as contrasted with TAGM 4046's use in the State Superfund program context--where it is used to develop cleanup objectives to allow the site, and the groundwater underlying it, to be used without restriction--the voluntary remedial program uses TAGM 4046's evaluation method with an exposure scenario tailored to the circumstances of the site's contemplated use. Also, we continue to evaluate how to apply the risk-based assessment methodology to contaminated groundwater situations; at this point it does not appear clear how we would apply risk-based determinations any differently than what presently is done for non-volunteer sites, viz., groundwater standards are considered, as are the potential for use, discharge to surface water, and the practicability of cleaning up to standards.]



b. If there is off-site migration: non-PRP--remove on-site source only; PRP--remove on-site source and address off-site impacts that are not inconsequential



c. Developing concept: remove readily apparent contamination



4. Institutional Controls: must be imposed, if needed. Volunteer cannot challenge them or their enforcement.



D. Public Participation



1. Non-Class 2 sites: the Department and the volunteer will execute the agreement, which will include the workplan for the site's cleanup. The Department will then notify the public (through the Environmental Notice Bulletin) and local governmental entities of the existence of the agreement and afford the public and those governments a 30 day opportunity to comment on the workplan. Any significant new information received during this process may be used to reopen the agreement to revise the workplan appropriately.



2. Class 2 Registry Sites: citizen participation will be conducted pursuant to the requirements of the Inactive Hazardous Waste Disposal Site Remedial Program,⁽¹⁾ the New York State Inactive Hazardous Waste Site Citizen Participation Plan, and the Citizen Participation Plan Interim Guidance, to the extent practicable.



3. If a spill, or other event or condition occurs, whether natural or human-made, as the result of which a release or threat of release of contaminants presents an immediate threat to life, health, property, or natural resources, the public participation provisions may be waived.



E. Qualified Release



1. Once the cleanup level is met, the Department will issue a letter declaring that the Department agrees that the volunteer has cleaned the site to the previously agreed-upon cleanup level and that, barring an event triggering a reopener, the Department does not contemplate further action needing to be taken at the site. It also will release the volunteer from further past contamination remediation liability, subject to the reopeners.



2. While the qualified release covers onsite and offsite remedial responsibilities arising out of past contamination, with respect to a non-PRP volunteer, cleaning up the onsite contamination triggers the release; and with respect to PRP volunteer, cleaning up on-site contamination and addressing offsite impacts trigger the release.



3. A non-PRP volunteer also will receive a release that will cover natural resource damages.



4. Reopeners:



the response action we require the volunteer to undertake is not sufficiently protective to allow the contemplated use of the site to proceed safely, from a human health and environmental protection perspective



the volunteer, or its successor, changes the site's use to a use requiring a lower level of residual contamination before that use can be implemented safely



the volunteer fraudulently obtains the release



environmental conditions present at the affected site at the time the voluntary agreement was executed by the Department that were unknown to the Department at such time



5. Key considerations:



the Department's release binds only itself and does not bind private parties harmed by contamination emanating from property covered by a voluntary remedial agreement; does not prevent the Attorney General from commencing litigation to abate a common law nuisance that the contamination may cause; does not bind the United States Environmental Protection Agency.



The Department's agreeing to a specified cleanup level again only binds the Department. Under present law, to bind others to a Department-determined cleanup program requires either agreements with those other parties.



The Department's policy statements do not affect the Oil Spill Fund's authority to require cleanup activities nor its authority to seek reimbursement for cleanup activities. Volunteers seeking liability protection when confronted with petroleum-contaminated property ultimately must get it from the Oil Spill Fund Administrator.



All of the volunteer's successors and assigns (except the site's PRPs) benefit from the release given to the volunteer. Also, the reopener affects only the volunteer, successor, or assign which owns or operates the property at the time of the reopening, and thereafter.



The extent of the investigation and remediation determines the breadth, and hence, value, of the release. The lesson to draw from this is that the more comprehensive the remedial response, the more comprehensive the release.



II. The Department's Voluntary Cleanup Program and SEQRA



A. Investigation only: exempt from SEQRA. 6 NYCRR 617.5(c)(18).



B. Remediation associated with a project subject to SEQRA: agreement is considered in the course of the evaluation of that project.



C. Remediation not associated with a project subject to SEQRA and volunteer is a PRP/discharger: exempt from SEQRA. 6 NYCRR 617.5(c)(29).



D. Remediation not associated with a project subject to SEQRA and volunteer is a non-PRP/discharger: subject to SEQRA.



III. The Department's Voluntary Cleanup Program's Relationship to the Registry of Inactive Hazardous Waste Disposal Sites



A. The Department will continue its practice of listing only inactive sites having "consequential" amounts of hazardous waste disposed at them.⁽²⁾



B. But it will create a new administrative category⁽³⁾ in the Registry: one for sites that were not previously listed in the Registry that are covered under the Department's Voluntary Remedial Program and have a consequential amount of hazardous waste disposed at them.



C. The Department will postpone the classification determination of inactive sites within this "V" category of Registry sites until the satisfactory completion of the property's cleanup under the Department's Voluntary Remedial Program.



EXCEPTION: if the Department becomes aware of known significant threats to the public health or to the environment and the volunteer does not satisfactorily address them under its agreement (for example, where the volunteer is a non-PRP and therefore is not required to remediate offsite adverse impacts to groundwater supplies), the Department will list the property as "Class 2."



IV. Municipal Liability Protection



The Department typically will not commence or maintain administrative proceedings pursuant to ECL 27-1313.3 and .4, 71-2705.1, 71-2727.1 or .3, or refer to the Department of Law for the commencement and prosecution of judicial civil litigation pursuant to any statutory or common-law cause of action, against the following persons under the following circumstances:



1. A public corporation that took action in response to an emergency created by the release or threatened release of hazardous waste by another person, provided that the public corporation's action did not constitute reckless, willful, wanton, or intentional misconduct.



2. A public corporation that merely owns the location of a release or threatened release of hazardous waste by another person, provided that such ownership by the public corporation was acquired and thereafter retained without participation in management, either involuntarily, or voluntarily by virtue of its sovereign functions (as, through tax foreclosure).



For these purposes, the term "public corporation" includes: a municipal corporation (i.e., a county, a city, a town, a village or a school district); a district corporation (i.e. any other territorial division of the State possessing the power to contract indebtedness and to levy or require the levy of taxes or assessments upon realty); and a public benefit corporation (i.e. any corporation organized to construct or operate a public improvement wholly or partly within the State the profits of which inure to the benefit of the State or the people thereof), provided, however, with respect to a public corporation that is an industrial development agency, such agency must own mere title to the location and have no authority to manage or control activities at such location.



None of the above affects the obligations of a public corporation according to any existing order or judgment or comparable instrument finally disposing of any prospective or final administrative proceeding or judicial litigation.



V. Limitations on the Department's Voluntary Cleanup Program



A. The Department's forbearance would bind only itself. Specifically,



it would not bind private parties harmed by contamination emanating from the site.



it would not prevent the Attorney General from commencing litigation to abate a common law nuisance that the contamination may cause. The Department and the Attorney General's office are working closely together in the remediation arena, and I expect that as a result and barring something unusual, the Attorney General would not commence such litigation without first consulting the Department.



it would not bind the United States Environmental Protection Agency. To address this, the Department presently is negotiating a Memorandum of Understanding with USEPA that would result in USEPA's not taking any action at a non-NPL, non-"NPL caliber" site being addressed under the Department's voluntary remedial program.



B. The Department's forbearance is a matter of policy, not statute. If a more secure basis for liability exemption is desired, legislation must be enacted.



C. The Department's policy statements do not affect the Oil Spill Fund's authority to require cleanup activities nor its authority to seek reimbursement for cleanup activities. Those seeking liability protection when confronted with petroleum-contaminated property ultimately must get it from the Oil Spill Fund Administrator.



VI. Comparing the Department's Program with USEPA's



A. USEPA's prospective purchaser policy: In 1995, the United States Environmental Protection Agency issued its prospective purchaser policy, a copy of which is in the materials. While the policy statement provides qualified releases from past contamination remedial liability to prospective purchasers of realty, it differs from the Department's program in three major respects: (a) the policy is primarily intended for use at sites where USEPA has taken, is taking, or plans to take action under CERCLA and where it is used, (b) the release provided is not readily transferable and (c) PRPs are not eligible.



B. Respecting non-NPL sites where no USEPA removal action has occurred, the Department and USEPA Region II presently are negotiating a Memorandum of Agreement the objective of which is that, barring an emergency situation, USEPA will refrain from taking any action against a volunteer at property subject to a Department voluntary remedial commitment that is not on the NPL and not an "NPL-caliber site," viz., a site the HRS of which is more than 28.5. The difficulty is that USEPA's current policy in this area is not to commit to such forbearance, which renders useless such an MOA. We are awaiting Headquarters, USEPA clarification of its policy in this area.



VII. The Voluntary Remedial Program's Development as an Iterative Process



It is important to keep in mind that this program remains in the development stage: it will change over time in the intended direction of enhancing its value to the people of the State. To demonstrate our commitment to this objective's attainment,



we continue our explorations with the Department of Economic Development the idea of coordinating our program with any programs that agency may administer, to further encourage the return of contaminated lands to productive economic use. And in this regard, the Department recently established a Voluntary Remedial Program Working Group among representatives of USEPA Region II, this Department, and the Departments of Taxation and Finance and of Economic Development and headed up by the Deputy Commissioner David Sterman, to discuss issues arising out of the program's implementation.



in determining whether to change existing, or introduce new, aspects of the program, we are considering "lessons learned" and recommendations from interested parties.



THE CLEAN WATER/CLEAN AIR BOND ACT OF 1996's

ENVIRONMENTAL RESTORATION PROJECT STATE ASSISTANCE PROGRAM:



I. Introduction



On August 8, 1996, Governor Pataki signed into law Chapter [413] of the Laws of 1996, entitled, "Implementation of the Clean Water/Clean Air Bond Act of 1996." This law, which among other things adds a new Article 56 to the Environmental Conservation Law and which the electorate approved in November 1996, authorizes the State to issue $1.75 billion in general obligation bonds, $200 million of which being made available for municipal environmental restoration projects.

Title 5 of ECL Article 56 details the State assistance program the $200 million will finance.



II. Summary of Provisions



The State Assistance Program's salient provisions, set out in a "question and answer" format, are as follows:



A. What is eligible for State Assistance?: an "environmental restoration project," which ECL 56-0101.6 defines as a project to investigate or to remediate hazardous substances located on real property held in title by a municipality, pursuant to ECL Article 56, Title 5, but that property cannot constitute a Class 1 or 2 inactive hazardous waste disposal site. ECL 56-0505.2.



1. ECL 56-0101.11 effectively defines "hazardous substances" as substances found on the list of hazardous substances found in Part 597 of the Department's regulations, and petroleum, as Navigation Law section 172(15): "oil or petroleum of any kind and in any form".



2. ECL 56-0101.15 defines a "municipality" as a local public authority or public benefit corporation, a county, city, town, village, school district, supervisory district, district corporation, improvement district within a county, city, town, or village, or Indian nation or tribe recognized by New York or by the United States with a reservation wholly or partly within New York's boundaries, or any combination of the foregoing.



B. Who may apply for State Assistance under this program?: a municipality as above defined that did not generate, transport, or dispose of, or arrange for, or that did not cause the generation, transportation, or disposal of hazardous substances located at real property proposed to be investigated or to be remediated under an environmental restoration project. ECL 56-0502.



C. What are the application requirements for this State Assistance program?: they have yet to be worked out.



D. What will the State Assistance Contract provide?: the State Assistance Contract will provide [ECL 56-0503]--



1. A Department-determined estimate of the project's cost.



2. An agreement to periodically reimburse the municipality for eligible costs incurred during the project's progress, subject to a final computation and determination of total State Assistance share of the project's eligible costs.



A) "Costs" means the cost of an approved project, which shall include appraisal, surveying, engineering and architectural services, plans and specifications, consultant and legal services, construction and other direct expenses incident to the project, less any federal or State funds, other than those provided pursuant to ECL Article 56, for the project received or to be received. ECL 56-0101.4. "Eligible costs" are those costs the Department determines are eligible to be considered for determining State Assistance.



B) The State share of an approved environmental restoration project is up to 75 percent of the project's eligible costs, which is subject to recalculation upon federal payments, responsible party payments, and/or payments received from the disposition of the real property subject to the project becoming available that were not included in the original State share calculation. (A "responsible party" is a party responsible under applicable principles of statutory or common law liability to remediate the hazardous substances located at, or emanating from, the real property subject to the project. ECL 56-0101.21.) The municipality must deposit into the Hazardous Waste Remedial Fund, the so-called "State Superfund" [State Finance Law 97-b], the difference between the original State assistance share and the recalculated share, and recalculation must occur each time the municipality receives one of these payments.



3. If any money is received from any federal payments, payments from a responsible party, and/or payments received from the disposition of the real property exceed the municipality's cost of the property (including back taxes owed to that municipality upon acquisition), and the cost of the environmental restoration project, the excess will be divided equally between the municipality and the State, with the State's share being deposited into the Environmental Restoration Project Account of the Hazardous Waste Remedial Fund.

4. The municipality's agreement to proceed expeditiously with and to complete the project in accordance with the Department-approved plans.



5. The municipality's agreement that it will prepare and implement the public participation plan before remedial activities are undertaken under the contract. The plan will provide opportunities for early, inclusive participation before the selection of a preferred course of action, facilitate communication (including dialogue among the municipality, the Department, and the interested public), and provide timely and accessible disclosure of information. At a minimum, the plan's design will account for the scope and scale of the proposed environmental restoration project, local interest, and other relevant factors. It also will provide for adequate public notice of the availability of a draft remedial plan; a 45 day period for submission of written comment; a public hearing on the plan if substantive issues are raised by members of the affected community; and technical assistance if so requested by members of the affected community. However, these requirements do not apply to interim remedial measures undertaken as part of an environmental restoration project to address emergency site conditions. In that instance, the Department or such persons implementing the interim remedial measures or making the request shall conduct public participation activities as the Department may deem necessary and appropriate under the circumstances.



6. The municipality's agreement that it will put into place any engineering and/or institutional controls (including deed restrictions) that the Department may deem necessary to allow the contemplated use to proceed; that such engineering and/or institutional controls shall be binding on the municipality, any successor in title, and any lessees; and that any successors in title and any lessees cannot challenge State enforcement of such controls.

7. If the engineering controls and/or institutional controls are necessary, the municipality and its successors in title will agree to develop a plan ensuring that those controls be continually maintained in the manner required by the Department, with the plan itself being subject to Departmental approval. Failure to implement the Department-approved plan or maintain such controls shall constitute a violation of the contract and will terminate for the duration of the failure the protections afforded under ECL 56-0509.1, discussed later.



8. If deed restrictions are required, the municipality must agree to cause them to be recorded and indexed as declarations of restrictions in the office of the recording officer of the county or counties where the real property subject to the project is located, in the manner prescribed by Article 9 of the Real Property Law. The Declaration of Restriction shall contain the name of the owner of record of the property, along with the tax map parcel number or the section, block, and lot number of the property.



9. An exemption to the municipality and any successor in title from the requirement to obtain any State or local permit or other authorization for any activity needed to implement the environmental restoration project that is conducted on the real property subject to the project so long as the activities conducted in a manner satisfying all substantive technical requirements applicable to like activity conducted pursuant to a permit.



10. Such other terms and conditions as the Commissioner of Environmental Conservation may deem to be appropriate.



E. What criteria will the Department use in determining the eligibility of an environmental restoration project for State assistance under ECL Article 56, Title 5?: The Department will determine such ability based upon the following criteria [ECL 56-0505]:



1. the benefit to the environment realized by the expeditious remediation of the property proposed to be subject to the project;



2. the economic benefit to the State by the expeditious remediation of the property;



3. the potential opportunity of such property to be used for public recreational purposes; and



4. the opportunity for other funding sources to be available for the property's remediation, including, but not limited to, enforcement actions against responsible parties (other than the municipality to which State assistance was provided under ECL Article 56, Title 5; or a successor in title, lender, or lessee who is not otherwise a responsible party before such municipality's taking title to the property), State assistance payments pursuant to ECL 27, Title 13, and the existence of private parties willing to remediate the property using private funding sources. Highest priority will be granted to projects for which other such funding sources are not available.



F. To what cleanup level must the municipality remediate? An environmental restoration project's remediation objective must be the same standard for the protection of public health and the environment that applies to remedial actions undertaken pursuant to the State Superfund Program. ECL 56-0505.3.



G. What may the municipality do with the remediated property? After completion of the project, the municipality may use the property for public purposes or may dispose of it. However, if the municipality sells the property to a responsible party, that party must pay to the municipality, in addition to such other considerations, an amount of money constituting the amount of State assistance provided to the municipality under ECL Article 56, Title 5 plus accrued interest and transaction costs; and the municipality must deposit that money into the Environmental Restoration Account of the Hazardous Waste Remedial Fund. ECL 56-0505.4. Note: if the project's remediation objective shall not have been attained to the Department's satisfaction at the time of the municipality's disposition of the property, the municipality shall be liable to ensure that such objective is attained within the time called for in the State Assistance Contract. ECL 56-0505.5.



H. Is the State under any obligation to attempt recovery of the State Assistance?: yes. The State must make all reasonable efforts to recover the full amount of any State assistance provided under ECL Article 56, Title 5 through litigation brought under ECL 56-0507 or other statute or under the common law, or through cooperative agreements, with responsible parties (other than the municipality to which State assistance was provided; or a successor in title, lender, or lessee who was not otherwise a responsible party before the municipality's taking title to the property). Any and all monies recovered or reimbursed shall be deposited into the Environmental Restoration Project account of the Hazardous Waste Remedial Fund.



I. What liability protections does the State provide under this program?:



1. Notwithstanding any other provision of law and except as provided in II.I.2, immediately below, the following are not liable to the State upon any statutory or common law course of action, or to any person upon any statutory cause of action, arising out of the presence of any hazardous substance in or on property at any time before the effective date of the State Assistance Contract:



A) A municipality receiving State assistance under ECL Article 56, Title 5 to undertake an Environmental Restoration Project and complying with the terms and conditions of the contract providing that assistance; and



B) A successor in title to the real property subject to that project; any lessee of that property; and any person that provides financing to such party relative to the remediation, restoration, or redevelopment of that property, provided that the successor in title, lessee, or lender did not generate, arrange for, transport, or dispose, and did not cause the generation, arrangement for, transportation, or disposal of any hazardous substance located at the property, and did not own the property.



However, any person seeking the benefit of the above has the burden of proving that a cause of action, or any part of it, is attributable solely to hazardous substances present in or on such property before the effective date of the State Assistance Contract.



2. II.I.1, above, does not apply to relieve any municipality, successor in title, lessee, or lender from liability arising from:



A) Failing to implement the project to the Department's satisfaction or failing to comply with the terms and conditions of the contract;



B) Fraudulently demonstrating that the cleanup levels identified in, or to be identified in accordance with, the project were reached;



C) Causing the release or threat of release at the property subject to such project of any hazardous substance after the effective date of such contract; or



D) Changing the property's use from the intended use as identified in the State Assistance Contract to a use requiring a lower level of residual combination unless the additional remedial activities are undertaken which shall meet the same standard for protection of public health and the environment that applies to remedial actions under the State Superfund Program so that such use can be implemented with sufficient protection of public health and the environment.



3. The State also shall indemnify and save harmless any municipality, successor in title, lessee, or lender identified in II.I.1, above, in the amount of any judgment, or settlement, obtained against that municipality, successor in title, lessee, or lender in any court for any common law cause of action arising out of the presence of any hazardous substance in or on property at any time before the effective date of the State Assistance Contract. That municipality, successor in title, lessee, or lender will be entitled to representation by the Attorney General unless the Attorney General determines, or a court of competent jurisdiction determines, that such representation would constitute a conflict of interest, in which case, the Attorney General will certify to the State Comptroller that such party is entitled to private counsel of its choice, and reasonable attorneys fees and expenses shall be reimbursed by the State. Any settlement of such an action shall be subject to the approval of the Attorney General as to form and amount, and before going shall not apply to any settlement of any such action which has not received that approval.



4. A municipality receiving State assistance and any successor in title must implement a Department-approved environmental sampling program and, if conditions on the property are not sufficiently protective of human health for its current use due to environmental conditions related to the property subject to that project which were unknown to the Department as of the effective date of the contract or due to information received in whole or in part after the Department's approval of such project's final engineering report and certification, take such emergency measures that are necessary to maintain sufficient protection of human health for that property's current use until such conditions are addressed; and the Department will take such measures as it may determine are necessary to return the property to a condition sufficiently protective of human health using monies from the Environmental Restoration Project account of the Hazardous Waste Remedial Fund.



5. In addition to any other policy the Department may have, the Department shall have the authority to periodically inspect each project site to ensure that the use of the property complies with the terms and conditions of the State Assistance Contract.



NOTE: The above described protections do not relieve the municipality and its successors in title from the obligation to continually maintain in the manner required by the Department such engineering controls and/or institutional controls as are necessary to implement the environmental restoration project; and failure to implement the plan that ensures the continuous maintenance of those controls or to actually maintain those controls constitutes a violation of the State Assistance Contract and terminates for the duration of the failure the above-described protections. ECL 56-0503.2(h); 56-0509.1(a).



J. What happens if the site's use changes?:



1. A "change of use" for these purposes means the transfer of title to all or part of the property subject to an environmental restoration project, the erection of any structure on that property, the paving of the property for use as a roadway or parking lot, and the creation of a park or other public or private recreational facility on the property, or any activity that is likely to disrupt or expose hazardous substances or to increase direct human exposures; or any other conduct that will or may tend to significantly interfere with an ongoing or completed environmental restoration project.



2. At least 60 days before the start of physical alteration or construction constituting a change of use at a property remediated under an environmental restoration project or at least 60 days before a change of use at such a property not involving any physical alteration or construction, as the case may be, the person proposing to make a change of use must provide written notification to the Department and to the clerks of the County and other municipalities in which the property is located.



3. No person shall engage in any activity at such property that is not consistent with restrictions placed upon the use of the property or that will, or that reasonably is anticipated to: prevent or interfere significantly with the proposed, ongoing, or completed environmental restoration project; or expose the public health or the environment to a significantly increased threat of harm or damage at such property. If the Commissioner of Environmental Conservation determines that a proposed change of use is prohibited to ECL 56-0511, he must, within 45 days after receipt of the notification, provide the person giving such notification with a written determination that such change of use will not be authorized, together with the reasons for such determination.



4. The written notification, called a "complete notice," means a notice that adequately apprises the Department of the contemplated physical alteration of the property and how such alteration may affect the property's proposed, ongoing, or completed remediation, or of the proposed new owner's ability to implement the engineering and institutional controls associated with the property's remediation.



C. Rulemaking/Guidance



The Department expects to enter into two State Assistance Contracts covering two separate kinds of environmental restoration projects: investigation projects and remediation projects. It does not anticipate entering into a single State Assistance Contract covering a property's investigation and remediation.



In February 1997, the Department issued draft guidance relating to the implementation of the environmental restoration project State assistance program and solicited comment thereon. The comment period ended 20 March 1997, and staff are reviewing comments received. Since the Department is committed not to enter into State Assistance Contracts for remediation projects until regulations are finalized, the expectation is that the final guidance will cover investigative projects only, supplemented by remedial project guidance once the regulations are finalized.



The guidance covers the following matters:



what are "eligible costs" for State Assistance calculation purposes

what kinds of municipalities are eligible to participate in the State Assistance program

what provisions the State Assistance Contracts should contain (noteworthy is the deed restriction to ensure that the property is remediated before it is used where the project for which State Assistance is provided is for investigation only)

the conduct of an investigation and remedial decisionmaking



The proposed agency action for the regulations is tentatively scheduled to be noticed within the next two months, and at a minimum, the topics addressed in the guidance will be addressed in the regulations.



COMPARING THE SALIENT COMPONENTS OF THE DEPARTMENT'S

VOLUNTARY REMEDIATION PROGRAM AND THE ENVIRONMENTAL

RESTORATION PROJECT STATE ASSISTANCE PROGRAM





See the attached chart.



PRACTICE TIPS



When considering which program would be more suitable to pursue for a particular development project, the practitioner should account for the following:



1. The Department's voluntary remedial program uses private monies to get contaminated sites remediated to levels allowing for the sites' productive use. The Environmental Restoration Project State Assistance Program uses public monies to get contaminated sites remediated to the same extent that they would get remediated if they were remediated under the State Superfund program. Hence, pre-State Assistance costs associated with an environmental restoration project may be greater than costs associated with a voluntary remedial program clean. If cost is the only consideration, then, the practitioner should compare the cost difference between the voluntary redial program and the 25 percent municipal share of eligible costs, plus all ineligible costs that the municipality would bear in implementing the remediation.



2. The Department's voluntary remedial program provides a qualified release that binds only the Department. The Environmental Restoration Project State Assistance Program provides a release having fewer reopeners than those pertaining to the voluntary remedial program and that binds the State. Additionally, the latter program obligates the State to defend and indemnify the municipality those the release covers: loosely speaking, the municipality, its non-PRP successors in title, their respective non-PRP lessees, and any of their non-PRP lenders. If third party liability exposure is a concern, the Environmental Restoration Project State Assistance Program certainly is the more attractive.



3. The Department's voluntary remedial program covers virtually any kind of site and contamination. The Environmental Restoration Project State Assistance Program covers only municipally-owned properties. The lesson here is to focus on municipally-owned properties or those properties that the municipality can acquire fairly readily--as tax delinquent property.



4. If your client is a municipality, consider investigating the property under the Environmental Restoration Project State Assistance Program: at completion of the investigation, the nature and extent of the contamination will be known, the remedy will be known, and the municipality will have a transferable State release and associated State defense/indemnity obligation. Hence, development costs associated with remediation will be predictable, and the State itself will provide a liability protection shield, even to private parties. Such benefits, coordinated with other incentives municipalities may provide to lure investment, could tip the scales in favor of redeveloping a well situated contaminated parcel over developing a "greenfield" parcel lacking necessary infrastructure.



vcp:clnup037.cst

¹ECL Article 27, Title 13; 6 NYCRR Part 375.

² 6 NYCRR 375-1.8(a)(1) defines what an "inconsequential" amount of hazardous waste is: an amount that, under any foreseeable exposure scenario, could never constitute a significant threat to the environment.

³ 6 NYCRR 375-1.8(a)(3) expressly authorizes the Department to develop administrative categories for Registry purposes. One such category presently used is the Class "2a" site--an actual inactive site having hazardous waste disposed at it the significance of the environmental effect of which was not determined as of March 31st of the year to which the Annual Report pertains. ECL 27-1305.1.