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Four standard
reopeners:
* Not sufficiently
protective of public health or the environment
* Changed use
* Fraud
* Unknown
environmental conditions.
-3 other reopeners
sometimes show up:
*Change in scientific
methods so that remedial action taken is no longer sufficiently
protective;
* migration of
petroleum contamination offsite (under Art. 12 of Navigation Law)
*failure to implement
the VCA to DEC’s satisfaction.
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*Where necessary to
prevent or abate an imminent or substantial endangerment to public
health or the environment;
*Fraud or
misrepresentation;
* Previously
undiscovered contamination;
* Future activities
result in hazardous substance contamination requiring additional
cleanup.
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* Violation of an
activity or use limitation (AUL)
* Response Action
Out-come State-ments must be submitted within a 2-year time window.
* A cleanup can be
reopened based on any technical or substantive issue.
* Sites can always be
audited “for cause.” Statute requires 20% routine audits by DEP.
*Eligible parties can
be asked to reopen for failing to comply with the standard of care in
the industry at the time the cleanup was carried out. (PRPs can be
asked to comply with current stds.) |
* DEQ reserves the
authority to take additional response activities “if necessary.”
(§20b(7)).
* The new owner,
operator, or lessee has a statutory obligation to comply with the “due
care provision” (NREPA sec. 20107a). If the lack of due care results in
response costs or NRD, liability for these costs may result. |
* For PRPs only, if a
cleanup std. has decreased (become more stringent) by >10X.
* Where IC or EC is
no longer protective of human health and the environment
* Newly discovered
contamination--but only by RPs. Non-RPs are NOT responsible for
newly dis-covered contamination.
*Fraud
* Failure to achieve
agreed-upon cleanup stds.
* Failure to complete
required post-cleanup OM&M. |
* Fraud
* Newly discovered
contamination at above remediation levels.
*Remedy failed to
meet prescribed cleanup stds.
* Risk level
increases due to changed land use or updated exposure assumptions.
*Treatment, removal,
or destruction has now become economically feasible (where original
remedy relied upon ICs or ECs) [has never been used to date]. |