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Subpart 375-4: Environmental Restoration Program

(Environmental Conservation Law (ECL) article 1, section 0101; ECL article 27, titles 13 and 14; ECL article 52, title 3; ECL article 56, title 5; ECL article 71, title 36; ECL article 3, section 0301; chapter 1, laws of 2003; chapter 577, laws of 2004 and State Finance Law article 6, section 97-b)

[Effective December 14, 2006]

[page 1 of 1]

Contents:

Sec.

§375-4.1 Purpose; Applicability.

This subpart applies to the development and implementation of remedial programs for environmental restoration projects pursuant to ECL 56-0501 et seq. This subpart addresses requirements in addition to those requirements identified in subpart 375-1.

§375-4.2 Definitions.

As used in this subpart, the following terms have the following meanings:

(a) "Alternatives analysis" means a study undertaken to develop and evaluate options for remedial action, emphasizing data analysis.

(b) "Change of use" means the transfer of title to all or part of property subject to an environmental restoration project, the erection of any structure on such property, the creation of a park or other public or private recreational facility on such property, any activity that is likely to disrupt or expose hazardous substances or to increase direct human exposure, or any other conduct that will or may tend to significantly interfere with an ongoing or completed environmental restoration project.

(c) "Community based organization" means a not-for-profit corporation, exempt from taxation under section 501(c)(3) of the internal revenue code whose stated mission is promoting reuse of brownfield sites within a specified geographic area in which the community based organization is located, which has twenty-five percent or more of its board of directors residing in the community in such area; and represents a community with a demonstrated financial need. "Community based organization" shall not include any not-for-profit corporation that has caused or contributed to the release or threatened release of contamination from or onto the brownfield site, or any not-for-profit corporation that generated, transported, or disposed of, or that arranged for, or caused, the generation, transportation, or disposal of contamination from or onto the brownfield site. This definition shall not apply if more than twenty-five percent of the members, officers or directors of the not-for-profit corporation are or were employed by or receiving compensation from any person responsible for a site under ECL article 27, title 13 or NL article 12 or under applicable principles of statutory or common law liability.

(d) "Cost" 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 such project, less any assistance from a responsible party or otherwise.

(e) "Disposition of the restoration site" means the leasing or the transfer of title interest in the site through sale or other means.

(f) "Municipality" means 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 the state or the United States with a reservation wholly or partly within the boundaries of New York State, or any combination thereof. Except that such term shall not refer to a municipality that generated, transported, or disposed of, arranged for, or that caused the generation, transportation, or disposal of hazardous substance located at real property proposed to be investigated or to be remediated under an environmental restoration project. For purposes of this subpart, the term municipality includes a municipality acting in partnership with a community based organization.

(g) "Public recreational use" means a use for public purposes or for public recreational purposes.

(h) "Restoration investigation project" means a project, undertaken in accordance with the requirements of this subpart, to investigate contamination located in, on, or emanating from real property held in title by a municipality, or under a temporary incidents of ownership set forth in ECL 56-0508.

(i) "Restoration remediation project" means a project, undertaken in accordance with the requirements of this subpart, to remediate contamination located in, on, or emanating from real property held in title by a municipality.

(j) "State assistance" means in the case of a State assistance contract authorized by ECL 56-0503(1) and section 375-4.5, payments made to a municipality to reimburse the municipality for the State share of the costs incurred by the municipality to undertake an environmental restoration project.

§375-4.3 Eligibility.

(a) Eligible site. A site is eligible if all of the following apply:

(1) It is not listed in the Registry as a class "1" or "2" site at the time of application.

(2) It is owned by the municipality. A municipality is considered to own the site for purposes of applying for State assistance under this subpart if:

(i) the municipality owns the site;

(ii) the municipality jointly owns a site with a not-for-profit corporation as defined at NPCL 102.a(5) or an authorized foreign not-for-profit corporation as defined at NPCL 102(a)(7); or

(iii) for an investigation application, the municipality has been obtained, prior to the Department=s execution of the State assistance contract, an order granting temporary incidents of ownership to the municipality.

(3) The site contamination is attributable to an on-site source.

(b) Eligible municipality. A municipality is eligible if it:

(1) Did not generate, transport or dispose of, nor arranged for nor caused the generation, transportation or disposal of, any contaminant on the site. For these purposes, a municipality is not considered a generator, transporter, or arranger:

(i) for having rendered care, assistance, or advice in the course of an incident creating a danger to public health or welfare or to the environment as a result of any release of a contaminant or the threat of same; or

(ii) for having leased a site to another party that generated, transported or disposed of, or that arranged for or caused the generation, transportation or disposal of, any contaminant on such site unless such municipality knew that such other party generated, transported or disposed of, or arranged for or caused the generation, transportation or disposal of, such contaminant and failed to take any action to remediate, or cause the remediation of such contaminant.

(2) Did not take title to a site from a municipality not eligible to apply for State assistance under ECL article 56, title 5 by reason of its having generated, transported or disposed of, or having arranged for or caused the generation, transportation or disposal of, any contaminant on the site, and either municipality is a local public authority or public benefit corporation, or improvement district and title was acquired on or after June 6, 1996.

(c) Eligible project. The Department will determine the eligibility of an investigation project based upon the following criteria set forth in ECL 56-0505(1):

(1) Benefit to the environment realized by the expeditious remediation of the property proposed to be subject to such project;

(2) Economic benefit to the State by the expeditious remediation of the property proposed to be subject to such project;

(3) Potential opportunity of the property proposed to be subject to such project to be used for public recreational purposes;

(4) Real property is located in a designated brownfield opportunity area set forth in section GML 970-r; and

(5) Opportunity for other funding sources to be available for the remediation of such property, including, but not limited to, enforcement actions against responsible parties (other than the municipality to which State assistance was provided under this title; or a successor in title, lender, or lessee who was not otherwise a responsible party prior to such municipality taking title to the property), state assistance payments set forth in ECL article 27, title 13, and the existence of private parties willing to remediate such property using private funding sources. Highest priority shall be granted to projects for which other such funding sources are not available.

(d) Eligible costs. The costs set forth in paragraphs (1) through (7) below, within the limits of the SFL, are eligible for being considered in the calculation of State assistance under ECL article 56, title 5. The reimbursement rates for these eligible costs are set forth below.

(1) Costs eligible at a reimbursement rate of up to 90 percent are those:

(i) authorized by the municipality and the Department that are directly related to the project's implementation;

(ii) to implement Department-approved investigation work plans;

(iii) to implement Department-approved on-site remediation work plans, including those remediation costs incurred with the Department=s prior approval after the record of decision is issued;

(iv) incurred pursuant to implement activities identified by the record of decision with the Department's approval that would, in a cost-effective manner, address an off-site source of contamination to the site in order to prevent further contamination of the site, rather than mitigate the effect of that off-site contamination on the use of the site;

(v) to implement the measures necessary to satisfy the requirements of this subpart; or

(vi) incurred for the implementation of an active treatment remedy for up to five years after commencement of the remedy.

(2) The eligible costs identified in paragraphs(1) or (7) of this subdivision incurred to investigate or remediate off-site contamination attributable to the environmental restoration project may be reimbursed at a rate of up to 100 percent.

(3) The costs to demolish structures and dispose of the resulting demolition debris are eligible, at a reimbursement rate of up to 50 percent. In no event, however, will the Department reimburse the cost of a project consisting exclusively, or almost exclusively, of demolition of a structure.

(4) Costs associated with the disposal of any demolition debris from paragraph (3) above that must be disposed in a disposal facility subject to Part 373 of this title may be reimbursed at rate of up to 90 percent.

(5) The cost for asbestos abatement projects that consist of any measure designed to reduce exposure to, remove, or eliminate asbestos or asbestos-containing material from inside a structure are eligible, at a reimbursement rate of up to 50 percent. In no event, however, will the Department reimburse:

(i) the cost of a project consisting exclusively, or almost exclusively, of asbestos abatement inside a structure; or

(ii) greater than 50 percent of the cost of the asbestos abatement activities inside a structure.

(6) Costs associated with the disposal of any asbestos as set forth in paragraph (5) above may be reimbursed at a rate of up to 90 percent provided that the asbestos:

(i) must be disposed in a disposal facility subject to Part 373 of this title, or

(ii) is present in an environmental media outside of a structure.

(7) The eligibility and reimbursement rate of any cost a municipality may incur that is not identified in this subdivision, may be considered on a case-specific basis. In making such determinations, the Department will consider whether:

(i) incurring the cost is necessary for implementation of the approved project;

(ii) it is a reasonable cost that was incurred under contract or municipal force account pre-approved by the Department, provided, however, that costs incurred for legal services are eligible only to the extent that they are necessary for actual project implementation; and

(iii) it is properly documented.

(e) Ineligible costs. The following costs, which are ineligible for being considered in the calculation of State assistance under ECL article 56, title 5, are those incurred:

(1) Before the start date identified in the State assistance contract, including those to prepare and submit the State assistance application and those to procure and retain legal, engineering, and other services to undertake the project;

(2) To undertake site management at the site after construction of the Department-approved remedy, except those costs identified in subparagraph (d)(1)(v) above;

(3) To redevelop the site that are not necessary to remediate the site;

(4) That are reimbursed by, or recovered from, any other responsible party or insurance carrier or the federal government;

(5) Outside the scope of, or in violation of, the State assistance contract;

(6) In violation of applicable statutes or regulations;

(7) For which appropriations are not available; or

(8) For lead abatement projects consisting of measures designed to reduce exposure to lead-contaminated dust or paint, including any treatment, disposal, or testing associated with such measures, provided that costs associated with lead abatement projects consisting of measures designed to reduce lead in or on environmental media are eligible.

(f) If the site is already subject to an existing enforceable federal, State, or local requirement reflected in an order, agreement or State assistance contract directing a remedial party other than the municipality to investigate or remediate the site, the Department will consider eligible for State assistance only that portion of the investigative or remedial tasks which such order, agreement or State assistance contract does not cover.

§375-4.4 Applications.

(a) Application submittal.

(1) Applications shall be submitted to the Department in such form and manner, and containing such information as the Department may require. An application:

(i) may be submitted for either an investigation or a remediation project; and

(ii) the form, including all attachments, must be submitted both in hard copy and in an electronic format acceptable to the Department.

(2) A complete application shall contain information relative to the site necessary to determine site eligibility in accordance with section 375-4.3.

(3) The application must demonstrate that the project is intended to result in a benefit to the environment and in either, an economic benefit to the State, or a public recreational use.

(4) The application shall be signed by the individual authorized to sign on behalf of the municipality, and include the following certifications:

(i) the municipality has not generated, transported or disposed of, arranged for, or caused the generation, transportation or disposal of any contaminant on that site;

(ii) the municipality will not undertake any indemnification obligation respecting a party responsible under law for the remediation of the site, and, if the municipality leased such site to another party that generated, transported or disposed of, or that arranged for or caused the generation, transportation or disposal of, any contaminant on such site, the municipality did not know that such other party generated, transported or disposed of, or arranged for or caused the generation, transportation or disposal of, such contaminant or so knew and took action to remediate, or cause the remediation of such contaminant;

(iii) no other funding sources currently exist to undertake the project except the municipality=s and those other sources identified in this application; and

(iv) all statements made for the purpose of obtaining State assistance for the proposed project either are set out in full on the application, or are set out in full in exhibits attached to the application and incorporated by reference.

(5) If at the time of application for a remediation project, the Department has not issued a record of decision, the municipality must:

(i) provide sufficient information for the Department to develop a proposed remedial action plan and assist the Department with any necessary citizen participation activities; or

(ii) if a complete remedial investigation and alternatives analysis has not been completed, complete the investigation and alternatives analysis prior to its application being processed by the Department.

(b) Complete applications.

(1) The Department will review applications to determine whether the application is a complete application, as follows:

(i) an application shall be complete when the Department determines that it contains information addressing each application requirement of the statute and this subpart and contains all information necessary to initiate formal processing of the application; or

(ii) if the Department determines that the application is not a complete application, it will so notify the municipality and identify the deficiencies.

(2) For investigation projects, the Department may enter into State assistance contracts to the extent monies are available. Such contracts will be entered into based upon the order of receipt of a complete application.

(3) For remediation projects, the Department may enter into State assistance contracts to the extent monies are available. The Department will prioritize complete applications according to a priority ranking score. The Department will assign a priority ranking score to each complete application based upon the total points assigned as set forth in paragraph (4) below.

(4) The Department will assign priority ranking score points to the criteria applicable to scoring a remediation project, with the final priority ranking score being determined by adding the totals described in subparagraphs (i) through (iv) below and then subtracting from that total the total from subparagraph (v) below. The criteria and their associated scoring points are as follows:

(i) benefit to the environment; the Department will assess a maximum of 50 points based on the nature and extent of contamination found in, on, or under, or emanating from, the site and the environmental and public health benefits associated with the site's expeditious remediation;

(ii) economic benefit to the State; the Department will assess a maximum of 50 points based on the site's expeditious remediation to enhance its marketability, on its location in an economically distressed area, and on its potential for State and local tax revenue generating activities;

(iii) potential opportunity for public recreational use; the Department will assess a maximum of 50 points where the municipality has legally committed itself to implement a specific public recreational use of the site;

(iv) location in a brownfield opportunity area designated as set forth in GML 970-r; the Department will assess a maximum of 25 points if the site is located in a designated brownfield opportunity area; and

(v) opportunity for other sources to fund the project, where available; the Department will assess a maximum of 15 points under this criterion.

(c) Application approval.

(1) Approval of an application for State assistance to undertake an investigation project does not bind the Department to approve State assistance to undertake a remediation project nor to provide any assurance of approval or availability of funds for remediation.

(2) If the field work for a project for which State assistance is provided is not initiated within 12 months of the Department's approval of its application, or such other time period as the Department may approve, the municipality will be notified in writing of its failure to implement the project, the project will be removed from the approved list, and the Department will reallocate monies allocated to the removed project for other complete applications.

(3) Approval of the application entitles the municipality to the liability protections and benefits as set forth in ECL 56-0509; subject to the conditions set forth at subdivision 375-4.9(a).

§375-4.5 State Assistance Contracts.

(a) In addition to such further terms and conditions as the Department may require in the State assistance contract, the State assistance contract shall be deemed to include, and the municipality shall comply with, all of the provisions set forth in paragraphs 375-1.5(b)(1) and (4).

(b) The State assistance contract will also be deemed to include, and the municipality shall also comply with, the following provisions:

(1) The municipality must not enter into, or renew, a lease concerning, nor transfer title to, the site, or any portion of it, until the municipality binds itself and its lessees and its successors in title, to the following conditions that:

(i) the site is remediated under Department oversight in accordance with the Department's record of decision and that the site, or any subdivided parcel within the site, is not used for any purpose until it is so remediated, except that the site may continue to be used for the purpose for which it is being used as of the effective date of the state assistance contract, if the Department determines that the existing state of contamination does not pose a risk sufficient to prohibit such use from continuing, giving due regard for public health and environmental protection;

(ii) if, before the Department issues a certificate of completion, an environmental restoration project has not met the remediation objectives in accordance with the Department's record of decision for the site, due to the municipality's disposition of all or a portion of such property, such municipality shall be liable to ensure that such objectives are attained within such time period as the Department may require;

(iii) the site will not be used for any purpose requiring a level of contamination lower than that serving as the basis for the remediation identified in the record of decision;

(iv) any engineering or institutional controls, or both such controls, that the Department may deem necessary to allow the contemplated use of the site to proceed will be imposed and maintained. The municipality will cause the development of a plan, and submit such plan to the Department for its review and approval, to ensure that such controls are continually maintained in the manner the Department may require. The municipality and its lessees and successors in title are prohibited from challenging the imposition or continuance of such controls, and failure to implement the Department-approved plan or to maintain such controls constitute a violation of the State assistance contract and for the duration of such failure, the liability protections and benefits set forth in ECL 56-0509 will have no force and effect;

(v) the Department will have access to the site, at times appropriate to the circumstances and subject to the site health and safety plan, for purposes of ensuring that:

(a) the site is investigated or remediated in accordance with the Department-approved plans for the remedial investigation or remediation;

(b) the site management plan, where necessary for the remedy, including the operation, maintenance, and monitoring requirements identified in paragraph 375-4.8(e)(8) is being implemented satisfactorily;

(c) the engineering and/or institutional controls, where necessary for the remedy, identified in paragraph 375-4.8(e)(8) are continually maintained in the manner the Department may require; and

(d) the Department may carry out any measures necessary to return the site to a condition sufficiently protective of public health, in accordance with ECL 56-0509(4);

(vi) neither the municipality nor any of its lessees or successors in title shall interfere with such access; and

(vii) the municipality must make this binding commitment by means of an environmental easement and/or lease provisions, which provide that the Department (in addition to the municipality) may enforce the environmental easement and/or lease provisions, and that the municipality shall record an environmental easement in accordance with the requirements of ECL article 71, title 36 within 45 days of the receipt of notice from the Department that the environmental easement must be recorded.

(2) The municipality must revise any existing leases concerning the site, or any portion of it, to ensure that the site's use will be suspended upon a Department determination that such use cannot continue with sufficient protection of the public health until the conditions giving rise to such determination are addressed to the Department's satisfaction. The municipality must provide in such lease for the Department to have access to the site, at times appropriate to the circumstances and subject to the site's health and safety plan, if any, for purposes of ensuring that:

(i) the site is investigated and remediated in accordance with Department-approved plans;

(ii) the site management plan, including the operation, maintenance, and monitoring requirements identified in paragraph 375-4.8(e)(8) is being implemented satisfactorily;

(iii) the Department may carry out any measures necessary to return the site to a condition sufficiently protective of public health, in accordance with ECL 56-0509(4); and

(iv) such lease shall provide that neither the municipality nor any of its lessees or successors in title shall interfere with such access.

(3) If any responsible party payments and/or other responsible party consideration become available to the municipality which were not included when the State share was calculated for the State assistance contract, the municipality shall immediately notify the Department of such availability and the Department shall recalculate the amount of the State share. The Department has the option of either reducing the contract amount if the project is ongoing or requesting reimbursement of the amount owed to the State, for deposit in an appropriate account. The State will calculate the amount owed by the municipality based on the recalculated State assistance amount and the amount the State has reimbursed the municipality as of the date of the recalculation. If the municipality fails to make such repayment within 60 days of notification, the Department may take measures provided for by statute relating to the recovery of unrepaid State assistance.

(4) In the event that any monies received from the disposition of the site exceed the municipality=s cost of such site, including taxes owed to the municipality upon acquisition, and the municipality=s cost of the environmental restoration project, the amount necessary to reimburse the State for the State assistance provided to the municipality under this Part shall be paid to the State for deposit into the environmental restoration project account of the hazardous waste remedial fund established under SFL 97-b.

(5) The Department will notify the municipality if the Commissioner determines that the municipality:

(i) has failed to comply with any of the requirements of applicable State or federal laws and regulations;

(ii) has failed to comply with any of the requirements of the State assistance contract;

(iii) has failed to initiate, proceed with, or complete the Department-approved project in accordance with its schedule without good cause, as determined by the Department; or

(iv) has changed the Department approved project or any portion thereof without the Department's prior written approval.

(6) Such notice shall set forth in writing the reasons for such determination, and will afford the municipality a reasonable opportunity of not less than 30 days to cure such failure. The Department will suspend payments under the State assistance contract until the municipality has cured the failure. The Department may terminate the State assistance contract if the failure is not cured within the time provided.

(7) While the municipality may make efforts to recover response costs from responsible parties, it must provide the Department with timely advance written notice of any negotiations, proposed agreements, proposed settlements or legal action by which recovery is sought and must not commence such legal action nor enter into any such proposed agreement or settlement without prior written Department approval.

(8) The municipality must assist the Department or other State agencies in compelling responsible parties to contribute to the cost of the project at the site, such assistance encompassing, at a minimum, the provision of all information which the municipality has or acquires during the course of project implementation, and thereafter, related to the identification of the responsible parties for the contaminants disposed at, or released from, the site. Further, the municipality shall not perform any act or omission which compromises the cost recovery efforts of the Department or other State agencies.

(9) Indemnification. The remedial party shall indemnify and save harmless the Department and the State of New York from and against all losses from claims, demands, payments, suits, actions, recoveries and judgments, of every nature and, description brought or recovered against it by reason of any acts or omissions of the remedial party, its agents, employees, or subcontractors in the performance of this order, agreement or State assistance contract which are shown to have been the result of negligence, gross negligence or reckless, wanton or intentional misconduct.

§375-4.6 Reserved.

§375-4.7 Significant Threat and Registry Determinations.

(a) Registry determinations.

(1) In accordance with subdivision 375-2.7(c), the Department may defer its assessment or reassessment of a site=s classification or reclassification in the Registry if good faith negotiations are ongoing to enter into a State assistance contract and, following its execution, the municipality is in compliance with the terms of such contract.

(2) The Department shall assess or reassess such site upon termination of the State assistance contract.

§375-4.8 Remedial Program.

(a) A restoration investigation project includes the remedial investigation, the alternatives analysis report and the Department record of decision. The municipality must implement the Department-approved remedial investigation work plan, and any revisions thereto.

(b) The goal of the program for a specific site is to select a remedy that is protective of public health and the environment, including, but not limited to, groundwater according to its classification pursuant to ECL 17-0301, drinking water, surface water and air (including indoor air), sensitive populations, including children and ecological resources, including fish and wildlife. At a minimum, the remedy selected shall eliminate or mitigate all significant threats to the public health and to the environment presented by contaminants disposed at the site through the proper application of scientific and engineering principles.

(c) Application of the soil cleanup objectives.

(1) The remedial program for soils at a site must utilize soil cleanup objectives that are protective of public health and the environment. The remedial party, subject to Department approval, may:

(i) utilize the soil cleanup objectives, as set forth in section 375-6.8;

(ii) develop or modification of site specific soil cleanup objectives, as set forth in subsection 375-6.9; or

(iii) propose site-specific soil cleanup objectives which are protective of public health and the environment.

(2) The soil component of the remedial program will consider the soil cleanup objectives for unrestricted use, as set forth in Table 375-6.8(a), as representative of pre-disposal conditions for remedial programs proceeding as set forth in subparagraphs (1)(i) or (ii) above, unless an impact to ecological resources has been identified.

(3) Cleanup objectives for other media. The threat to public health and the environment resulting from contamination in all other environmental media shall be:

(i) evaluated in the development of remedial alternatives in the alternatives analysis to ensure that the remedial program meets the requirements of this section and section 375-1.8.

(d) Alternatives analysis.

(1) An alternatives analysis shall be conducted by the municipality that develops and evaluates, using the factors set forth in subdivision 375-1.8(f), alternatives for all contaminated media identified by the remedial investigation of the site.

(2) Where soil contamination above the unrestricted soil cleanup objectives is identified by the remedial investigation, the alternatives analysis:

(i) shall develop and evaluate one or more alternatives that achieve the unrestricted soil cleanup objectives; and

(ii) may evaluate one or more alternatives that achieve a restricted use of the site which may be proposed by the municipality. Where a restricted use is proposed in the alternatives analysis, the municipality shall:

(1) develop and evaluate alternatives, to achieve the restricted use proposed by the municipality; and

(2) develop and evaluate other alternatives, if directed by the Department, which will achieve the same use or a less restricted use of the site than that proposed by the municipality.

(3) The Department may approve a remedial program for soil that:

(i) utilizes different soil cleanup objectives between different areas of a site, provided such areas can be defined and described in the environmental easement and the necessary institutional and engineering controls can be effectively imposed, implemented, operated, monitored and maintained in accordance with the Department approved site management plan;

(ii) considers site specific background concentrations or the location of a site in areas of historic fill in the development of the remedy; or

(iii) achieves a cleanup which is more stringent than the current, intended and reasonably anticipated future land uses of the site and its surroundings.

(4) The Department shall select the remedy for the site from:

(i) the alternatives developed and evaluated by the alternatives analysis; or

(ii) an alternative or alternatives developed by the Department in addition to those presented by the alternatives analysis.

(e) Remedy selection. The process of selecting a remedy shall be consistent with the requirements of subdivision 375-1.8(f) and shall be documented in a record of decision, which includes the information identified below:

(1) The location and description of the site.

(2) A history of the operation of the site.

(3) The current environmental and public health status of the site.

(4) An enforcement history of the site.

(5) The specific goals and objectives of the remedy selected for the site.

(6) A description and evaluation of the alternatives considered, except in the case of no further action remedies.

(7) A summary of the basis for the Department=s decision.

(8) A description of the selected remedy, including the site management requirements and an identification of any necessary institutional and engineering controls.

(9) A list of the documents the Department used in its decision-making.

(10) A responsiveness summary.

(f) Remediation. An environmental restoration remediation project includes the design and implementation of the remedial action for the site that the Department selected in the record of decision.

§375-4.9 Certificate of Completion.

(a) Liability protections and benefits. The municipality shall be entitled to the liability protections and benefits set forth at ECL 56-0509 upon approval of the municipality's application by the Department, subject to:

(1) The terms and conditions stated therein;

(2) The timely receipt of a certificate of completion; and

(3) Compliance with all other statutory and regulatory requirements of the program.

(b) Modification or revocation of a certificate of completion.

(1) If the Department seeks to exercise its rights reserved set forth in ECL 56-0509(2), it shall modify or revoke the certificate of completion as set forth in subdivision 375-1.9(e).

(2) The certificate holder shall have 30 days from the effective date of the notice within which to cure the deficiency or seek dispute resolution. If the certificate holder or current title owner does not cure the deficiency or seek dispute resolution within such 30-day period, the certificate of completion shall be deemed modified or vacated 31 days after the effective date of the Department=s notice.

§375-4.10 Citizen Participation.

(a) The Department will require that opportunities for public involvement be included in the development and implementation of an environmental restoration project.

(b) The Department will communicate with and solicit the views of all interested parties. To accomplish this, at the appropriate time, the Department will require a municipality to, at a minimum:

(1) Mail to the site contact list a notice and brief analysis of the remedy that the Department proposes to be undertaken at such site, which includes sufficient information to provide a reasonable explanation of that proposed remedy, including but not limited to, a summary of the Department=s reasons for preferring it over other alternatives considered and of the construction and site management requirements of that proposal; and

(2) Provide a 45-day period for submission of written comments and, if significant substantive issues on the proposed remedial action plan are raised, an opportunity for submission of oral comments at a public meeting near the site. The Department shall summarize the comments received and make the summary available to the public.

(c) The Department may require a municipality to mail additional notices and/or fact sheets to those on the site contact list.

(d) All key documents developed will be made available in the document repository.

§375-4.11 Miscellaneous.

(a) Prohibitions. No person to whom a request has been made set forth in ECL 56-0515 shall fail to comply therewith.

(b) State environmental quality review act applicability

(1) Remedy selection and implementation of remedial actions under Department approved work plans set forth in ECL article 56, title 5 are not subject to review set forth in ECL article 8 and its implementing regulation (6 NYCRR Part 617), provided that design and implementation of the remedy do not:

(i) commit the Department or any other agency to specific future uses or actions; and

(ii) prevent evaluation of a reasonable range of alternative future uses of or actions on the remediation site.

(2) In the event that the use of the site, as set forth in the record of decision for the site, changes during the implementation of the remedial program, the Department may make a new determination whether such remedial action remains protective of public health and the environment and, if the Department makes such a finding, it will require that the remedial action be modified to be protective of public health and the environment.

(3) The exemption set forth in this subdivision is in addition to, and not in place of, other exemptions that apply as set forth in Parts 617 or 618 of this title.(e.g. the enforcement exemption).

§375-4.12 Reserved.