DEC recently released its proposed DER-32: Brownfield Cleanup Program Applications and Agreements, which sets forth DEC guidance on the New York State Brownfield Cleanup Program (“BCP”) application process and sets forth the terms and conditions to be included in all Brownfield Cleanup Agreements (“BCAs”). Notable aspects of the draft policy include the following:
- The draft policy clarifies that applications should not be submitted until the Applicant is “ready, willing and able” to advance the remedial project, which DEC defines as being prepared to enter into a BCA within 100 days of submitting the application. BCAs must be signed within 60 days of receipt from DEC, or the application is considered withdrawn without prejudice and the acceptance into the program rescinded.
- The BCP requires Volunteers (i.e., parties not responsible for the contamination at a proposed BCP site) to conduct a limited off-site investigation, but does not require off-site remediation if such contamination is identified. Participants (i.e., parties responsible for the contamination), however, are required to conduct off-site remediation. DEC’s draft policy document requires that, for sites at which there are multiple Applicants and one is a Participant, all Applicants (even those who are Volunteers) will be treated as Participants – DEC will not structure the BCA to clarify that only the Participants have a responsibility for off-site remediation.
- The draft policy explains that DEC has specified that the terms and conditions of the BCA include the schedules set forth in work plans; accordingly, “the failure to initiate, proceed with, or complete the remedial program in accordance with its schedule is cause to terminate the BCA.”
A copy of the proposed policy is available here. DEC is accepting comments on the draft until April 30, 2010.
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