N.Y. Comp. Codes R. & Regs. Tit. 6 §§ 375-1.11

Current through Register Vol. 46, No. 43, October 23, 2024

Section 375-1.11 - Miscellaneous

(a) Submissions to the department. All work plans; reports, including all attachments and appendices, and certifications, submitted by a remedial party shall be submitted in print, as well as in an electronic format acceptable to the department.

(b) Prohibitions.

(1) It is a violation to obstruct or attempt to obstruct any duly designated officer or employee of the department or of any other State agency, or any agent, consultant, contractor or other person, including an employee, agent, consultant or contractor of a remedial party acting at the direction of the department, or so authorized in writing by the department, acting as set forth in ECL article 27 or ECL article 56, title 5 or any combination of same.

(2) It is a violation to engage in any activity that will, or that is reasonably:

(i) anticipated to, prevent or interfere significantly with any proposed, ongoing, or completed remedial program at any site; or

(ii) foreseeable to, expose the public health or the environment to a significantly increased threat of harm or damage at any site.

(c) Financial assurance.

(1) Applicability. The department may require, as a condition of accepting an institutional or engineering controls, that the remedial party post financial assurance to ensure the long term implementation, maintenance, monitoring, and enforcement of any such controls. In considering whether to require financial assurances, the department will consider factors including, but not limited to:

(i) whether one or more innovative technologies have been employed at the site;

(ii) the length of time to implement the remedial program;

(iii) the cost of the remedial program;

(iv) the complexity of the remedial program; and

(v) the financial viability of the remedial party.

(2) Financial assurance required under this Part shall be in effect and on file with the department before any certificate of completion is issued. Allowable financial assurance mechanisms include:

(i) trust funds;

(ii) surety bond guaranteeing payments;

(iii) letters of credit;

(iv) insurance; or

(v) documentation of a financial capability test, as set forth in section 373- 2.8(d)(5) of this Title.

(3) Preparation of estimated amount of financial assurance. If the department requires posting of financial assurance as a condition of accepting institutional or engineering controls, the remedial party shall provide an estimated amount of financial assurance for the department's consideration. Such party is responsible for having a professional engineer or other qualified individual prepare the estimate, and in the event the financial assurance is being provided through environmental insurance, an independent insurance professional shall provide a certification that such policy will meet the requirements of this section. The estimate must include an itemized listing of each cost and how the cost was calculated, including the cost of contracting with a third party.

(4) Department review of estimated amount of financial assurance. Upon receipt of the financial assurance estimate, the department shall review the estimate and shall assess the basis for the type and extent of impacts used in calculations, and whether the estimated amount is sufficient. The department may accept, modify, or reject the financial assurance estimate.

(5) Submittal of financial assurance. After approval of the financial assurance amount and prior to the department's issuance of a certificate of completion, the remedial party must submit an originally signed financial assurance mechanism to the department. The mechanism must be in effect when submitted. A remedial party may satisfy this requirement by establishing one or more financial assurance mechanisms. If multiple financial assurances are used, the remedial party shall specify at least one such assurance as primary coverage and shall specify the other assurance as excess. Additionally, a remedial party with obligations for providing financial assurances for multiple sites can combine the required financial assurances for all sites into one or more financial assurance mechanisms.

(6) Adjustment of amount of financial assurance. The dollar amount of financial assurance shall be reviewed at least once every five years. During the review, the department may adjust the amount for inflation based on the United States consumer price index. In addition, the remedial party may request that the amount of financial assurance be adjusted based on factors occurring since the posting of the existing financial assurance. The remedial party shall describe in writing the basis for the adjustment request.

(7) Release of financial assurance. The department may release the requirement for financial assurance or a portion of the requirement for financial assurance, and in doing so shall;

(i) notify the remedial party in writing of any release or modification;

(ii) modify the financial assurance requirement to reflect the release or modification of the financial assurance required; and

(iii) return to the remedial party such released financial assurance, if applicable, with the notice.

(8) Substitution of financial assurance. If the remedial party requests substitution of one type of financial assurance for another, such party shall submit to the department a proposal for alternate financial assurance. The alternate financial assurance must be as secure or more secure than the existing financial assurance as determined by the department. Upon approval and receipt of the alternate financial assurance by the department, the department shall release the existing financial assurance and the department shall notify the remedial party in writing.

(d) Change of use.

(1) At least 60 days before a change of use at a site, as defined in sections 375-2.11, 375-3.11 and 375-4.11 of this Part, the person proposing to make such change of use shall provide written notification to the department.

(2) The notice shall advise the department of the contemplated change, including, but not limited to, explaining how such change may affect the site's proposed, ongoing, or completed remedial program.

(3) Where such change results in a change in ownership or responsibility for the proposed, ongoing, or completed remedial program:

(i) such notice shall certify that the prospective purchaser has been provided a copy of any order, agreement or State assistance contract as well as a copy of all approved remedial work plans and reports; and

(ii) within 15 days of the transfer of all or part of the site, an additional notice shall be submitted to the department which includes but is not limited to the name of the new owner and the new owner's contact information, including a contact representative and the contact information for such representative.

(e) Effective date of submissions and notices.

(1) Unless otherwise provided, the effective date of submissions and notices required under this Part shall be the date of receipt as defined herein.

(2) The date of receipt of any writing or notice by the department to the remedial party shall be:

(i) if served in hand, the date delivered to the remedial party or its designated representative;

(ii) if mailed, five days after the mailing.

(3) The date of receipt of any submission to the department by the remedial party shall be:

(i) if served in hand, the date delivered to the department's office at 625 Broadway, Albany, New York or to the appropriate regional office of the department;

(ii) if mailed, five days after the mailing.

(f) Remedial activities which were approved by the department prior to the effective date of this rule shall be completed in a manner consistent with such approval.

N.Y. Comp. Codes R. & Regs. Tit. 6 §§ 375-1.11