Printer-friendlyBrownfield Cleanup Agreements
Brownfield Cleanup Agreements
(see also ECL §27-1409)
A Brownfield Cleanup Agreement ("BCA") is required for all parties who wish to participate in the Brownfield Cleanup Program. By executing a BCA, an Applicant makes a commitment to undertake certain remedial activities under the Department's oversight. The obligations incurred by an Applicant under a BCA depend to some degree upon the Applicant's status as either a Participant or a Volunteer. A BCA may be terminated by an Applicant at any time upon written notification to the Department; the Department may terminate a BCA if the Applicant fails to substantially comply with the terms and conditions of the BCA.
The main elements of a BCA are:
- Description of the Site;
- Description of the Applicant, Including Status as a Participant or a Volunteer;
- Submission and Implementation of a Citizen Participation Plan;
- Development and Implementation of Work Plans;
- Submission and Review of Final Reports;
- Submission of Annual Reports;
- Enforcement as a Contractual Agreement;
- Payment of State Costs
- Liability Limitation;
- Reservation of Rights;
- Waiver of Claims Against the Spill Fund;
- Indemnification;
- Change of Use;
- Environmental Easement;
- Progress Reports;
- Communications;
- Termination;
- Dispute Resolution; and
- Miscellaneous Provisions Including a Permit Exemption.
Model Brownfield Cleanup Agreements
The New York State Department of Environmental Conservation (the "Department") has prepared a Model Brownfield Cleanup Agreement ("BCA") that is used by Department attorneys as a standard document that is required for all parties who have been accepted into the Brownfield Cleanup Program set forth in Article 27, Title 14 of the Environmental Conservation Law ("ECL").
There are two versions of the model BCA.
Model BCA for Participants (31 page PDF, 59 KB) - One version is used for each Applicant who is a Participant, defined by ECL 27-1405(1)(a) as one "...who either (i) was the owner of the site at the time of the disposal of hazardous waste or discharge of petroleum or (ii) is otherwise a person responsible according to applicable principles of statutory or common law liability, unless such person's liability arises solely as a result of such person's ownership or operation of or involvement with the site subsequent to the disposal of hazardous waste or discharge of petroleum."
Model BCA for Volunteers (26 page PDF, 71 KB) - The other version is used for each Applicant who is a Volunteer, defined by ECL 27-1405(1)(b) as "...an applicant other than a participant, including without limitation a person whose liability arises solely as a result of such person's ownership or operation of or involvement with the site subsequent to the disposal of hazardous waste or discharge of petroleum, provided however, such person exercises appropriate care with respect to hazardous waste found at the facility by taking reasonable steps to (i) stop any continuing release; (ii) prevent any threatened future release; and (iii) prevent or limit human, environmental, or natural resource exposure to any previously released hazardous substance."
