DEC BROWNFIELDS (ENVIRONMENTAL RESTORATION) REGULATIONS

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PART 375
INACTIVE HAZARDOUS WASTE DISPOSAL SITES

(Statutory Authority: Environmental Conservation Law §§ 1-0101, 3-0301, 27-0903, 27-1315, 27-1317 and 52-0107.5, Environmental Conservation Law Article 56, Titles 1 and 5; and State Administrative Procedure Act, §§ 301, 305)

SUBPART 375-4
ENVIRONMENTAL RESTORATION PROJECTS

Sec.
375-4.1 Purpose
375-4.2 Definitions
375-4.3 Eligible municipalities
375-4.4 State assistance application contents and submission
375-4.5 State assistance application review
375-4.6 State assistance contract contents
375-4.7 Costs
375-4.8 Investigation and remedial decision making
375-4.9 Remediation
 

§375-4.1         Purpose.

This subpart sets forth the regulations governing the environmental restoration project state assistance program under ECL article 56, title 5.

§375-4.2         Definitions.

Terms used in this subpart have the same meaning as defined in section 375-1.3 and in ECL 56-0101 and 56-0502. In the event of conflict, those contained in ECL 56-0101 and 56-0502 shall prevail. Additionally, for purposes of this subpart, the following terms have the following meanings:

(a) "Complete application" means an application for state assistance under ECL article 56, title 5 submitted by an eligible municipality that contains all the materials identified in section 375-4.4(b).

(b) "Disposition of the property" means the leasing of the property as identified in the state assistance contract or the transfer of that property's title through sale or other means.

(c) "Eligible municipality" means a municipality applying for state assistance under ECL article 56, title 5 respecting property and meeting the criteria set forth in section 375-4.3.

(d) "Environmental media" means water vapor, land (including land surface and subsurface), sediments, surface water, groundwater, and air.

(e) "Project" means an environmental restoration project.

(f) "Property" means real property that is the subject of a project.

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

(h) "Remedial alternatives report" or "RAR" is a report that contains an evaluation of options for the remediation of any contamination in, on, or under, or emanating from, a property that includes an analysis of data and other information concerning the nature and extent of that property's contamination and is generally performed concurrently, and in an interactive fashion, with the site investigation.

(i) "Site investigation" or "SI" means a process undertaken to determine the nature and extent of contamination in, on, and under, and emanating from, a property. The SI includes the gathering of sufficient information to determine the necessity for, and the selection of the appropriate method of, remediation of contamination in, on, or under, or emanating from a property.

§375-4.3         Eligible municipalities.

(a) A municipality may apply for state assistance under ECL article 56, title 5 to investigate property or to remediate property if the following criteria are met respecting that property:

(1) The municipality must own the property before the department approves the state assistance contract. A municipality co-owning property with another person that is not either a municipality or a not-for-profit corporation is not considered to own the property for purposes of applying for state assistance under ECL article 56, title 5;

(2) The municipality must not have generated, transported or disposed of, nor arranged for nor caused the generation, transportation or disposal of, hazardous substances on the property. For these purposes, a municipality is not considered a generator, transporter, or arranger merely 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 hazardous substance or the threat of same;

(3) The property must not be listed in the Registry as a class "1" or "2" site at the time of application; and

(4) In the case of a remediation project, the source of the property's contamination must be located on the property unless the remedial action identified in the record of decision for the property selects a remedy that can eliminate recontamination of the property from the off-property source in a cost-effective manner.

(b) A municipality that took title to property 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, hazardous substances on the property, is not eligible to receive state assistance under ECL article 56, title 5 if 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) A municipality that leased property to another party that generated, transported or disposed of, or that arranged for or caused the generation, transportation or disposal of, hazardous substances on such property is eligible to apply for state assistance under ECL article 56, title 5 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 hazardous substances and failed to take any action to remediate, or cause the remediation of such hazardous substances.

§375-4.4         State assistance application contents and submission.

(a) An eligible municipality may apply for state assistance under ECL article 56, title 5 to investigate property or to remediate property.

(b) A complete application for such state assistance consists of the following:

(1) a duly completed department-provided application form. This form must include the following certification:

The undersigned on behalf of the applicant municipality does hereby certify that:
The applicant has not generated, transported or disposed of, arranged for, or caused the generation, transportation or disposal of hazardous substance on that property, and has not undertaken, and will not undertake, any indemnification obligation respecting a party responsible under law for the remediation of the property, and, if the applicant leased such property to another party that generated, transported or disposed of, or that arranged for or caused the generation, transportation or disposal of, hazardous substances on such property, the applicant did not know that such other party generated, transported or disposed of, or arranged for or caused the generation, transportation or disposal of, such hazardous substances or so knew and took action to remediate, or cause the remediation of such hazardous substances.
No other funding sources currently exist to undertake the project except the applicant's and those other sources identified in this application;
All statements made for the purpose of obtaining State assistance for the proposed project either are set out in full on this application, or are set out in full in exhibits attached to this application and incorporated by this reference;
The individual whose signature appears hereon is authorized to sign this application for the applicant.
A FALSE STATEMENT MADE HEREIN IS PUNISHABLE AS A CLASS "A" MISDEMEANOR PURSUANT TO SECTION 210.45 OF THE PENAL LAW

_______________________________________         _______
Signature of individual authorized to sign application         Date

(2) a certified copy of the authorization for submission of the application that contains the title of the individual authorized to sign the application (this person must be a responsible official of the municipality rather than a consulting engineer or attorney) and a certification by a recording officer;

(3) a statement that the property is not listed in the Registry as a class "1" or "2" site at the time of application;

(4) a declaration by the municipality to the effect that it owns at the time of application, or will own at the time the department approves the state assistance contract, the property. If the municipality owns the property, the municipality must accompany the declaration with a copy of the deed certified by the county's recording officer to be a true copy of the deed recorded in the recording officer's office. That recording officer also must provide the appropriate references pertaining to where the deed may be found in the recording officer's office;

(5) a declaration by the municipality to the effect that it did not generate, transport, or dispose of, and did not arrange for nor cause the generation, transportation, or disposal of, hazardous substances on the property;

(6) a declaration by the municipality that it has complied with the following, or will comply with them within the approved SI/RAR workplan schedule:

(i) the registration of all known petroleum storage tanks on the property pursuant to section 612.2 of this title and of all known chemical storage tanks on the property pursuant to section 596.2 of this title, and

(ii) the proper closure of all such known tanks that are out-of-service pursuant to section 613.9 of this title (in the case of petroleum storage tanks) or section 598.10 of this title (in the case of chemical storage tanks);

(7) where hazardous substance is found to be stored on the property in containment vessels other than storage tanks(such as drums, transformers, sumps, and pits), or where petroleum storage tanks or chemical storage tanks are discovered on the property during the course of the property's SI/RAR and such tanks contain hazardous substance, a declaration that the municipality will remove and dispose of such hazardous substance in accordance with all applicable state and federal requirements within the approved SI/RAR workplan schedule;

(8) a demonstration 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;

(9) a description of the project, which must include:

(i) the project's purpose and scope, which identifies the investigation or remediation activities proposed to be undertaken for the property, provides a schedule, and takes into account the environmental history of the property;

(ii) a summary of the property's environmental history. This summary must contain all readily available information that identifies all previous uses of the property, types of operation conducted and chemicals used on the property, by-products or wastes produced by previous activities on the property, environmental permits or approvals obtained by previous operators, and a list of any orders, decrees, or other legal documents regarding violations of the ECL and of equivalent federal or local environmental statutes, local laws, or ordinances. It must also include copies of any previous environmental studies, property assessments, and geological studies on the property or adjacent properties that are readily available;

(iii) a description of the property's intended future use;

(iv) an estimate of the project's cost, which must include the basis of those costs in the description of the project;

(10) a written commitment by the municipality that it will initiate field work within 12 months of the department's approval of its application (or such other time period as the department may approve on a case-specific basis) and that it will complete the project in accordance with department-approved plans and schedule;

(11) a list of other funding sources or potential funding sources for this work, if known; and

(12) in the case of an application for state assistance for a remediation project only, compliance with the State Environmental Quality Review Act (SEQR), part 617 of this title, must be completed.

(c)

(1) The applicant must submit the original and one copy of the complete application to the department at the following address:

New York State Department of Environmental Conservation
Division of Environmental Remediation
50 Wolf Road
Albany, New York 12233-7010

(2) The applicant also must submit one copy of the complete application to the regional office of the department that covers the county in which the property is located.

§375-4.5         State assistance application review.

(a) The department will review applications for state assistance under ECL article 56, title 5 to determine whether the application is a complete application.

(b) If the department determines that the application is not a complete application, it will so notify the municipality in writing, identifying all the deficiencies.

(c) The department will determine the eligibility of an investigation project based upon the criteria set forth in ECL 56-0505.1, and the department may enter into state assistance contracts to the extent monies are available in order of when the department receives the original complete application.

(d) The department will prioritize complete applications for remediation according to a priority ranking score, and the department may enter into state assistance contracts to the extent monies are available. The department will assign a priority ranking score to each complete application based upon the total points assigned pursuant to section 375-4.5(e).

(e) The department will assign the following priority ranking score points to the following criteria applicable to a particular complete application's remediation project, with the final priority ranking score being determined by adding the totals described in sections 375-4.5(e)(1) through (3) and then subtracting from that total the total from section 375-4.5(e)(4):

(1) Benefit to the environment: the department will assess a maximum of 50 points based on the nature and extent of hazardous substance contamination found in, on, or under, or emanating from, the property and the environmental and/or public health benefits associated with the property's expeditious remediation.

(2) Economic benefit to the state: the department will assess a maximum of 50 points based on the property'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.

(3) 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 property.

(4) Opportunity for other sources to fund the project, where available: the department will assess a maximum of 15 points under this criterion.

(f) If at time of application, the department did not issue a record of decision respecting the property's remediation, the municipality must propose the property's remedial action. The department will review the site investigation and public participation afforded in remedial decisionmaking that the municipality undertook to develop its proposed remedial action to determine the adequacy of the measures undertaken to comply with the site investigation and public participation requirements of this subpart. If the department concludes that the municipality's site investigation:

(1) was inadequate, the department will reject the application after notifying the municipality of the deficiencies in the municipality's site investigation.

(2) was adequate but that the public participation afforded was inadequate, the department will so notify the municipality, and the municipality will cooperate with the department in implementing this subpart's public participation and remedy selection requirements.

(3) was adequate but that the municipality's proposed remedial action is inadequate, the department will so notify the municipality, and if the municipality elects to proceed with the department's proposed remedial action, it will cooperate with the department in implementing this subpart's public participation and remedy selection requirements.

(g) 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 on a case-specific basis), 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.

(h) If an application for state assistance under ECL article 56, title 5 is received that pertains to property already subject to an existing legally enforceable federal, state, or local requirement reflected in an agreement or order directing a person other than the municipality to investigate or remediate the property, the department will consider eligible for state assistance only that portion of the investigative or remedial tasks which such legally enforceable federal, state, or local requirement does not cover.

§375-4.6         State assistance contract contents.

(a) In addition to those matters that ECL 56-0503.2 and other provisions of state and federal law require the state assistance contract to contain and to such other terms and conditions that the department may deem to be appropriate, that contract also must contain the following:

(1) The municipality must bind itself, and must not enter into, or renew, a lease concerning, nor transfer title to, the property, 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 property is remediated under department oversight in accordance with the department's record of decision and that the property is not used for any purpose until it is so remediated (except that the property 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 human health and environmental protection);

(ii) if, before the property's remediation is completed to the department's satisfaction,

('a') the municipality wishes to subdivide the property into separate parcels, it may do so after it submits a complete application for state assistance to remediate the property under ECL article 56, title 5. However, a contaminated parcel of the subdivided property cannot be used until the department-determined remedial objectives for that parcel are first met to the department's satisfaction within such time period as the department may require and the municipality must undertake that remediation if state assistance to do so is provided under ECL article 56, title 5,

('b') the municipality's successor in title that itself is not a municipality wishes to subdivide the property into separate parcels, that successor in title must first agree to remediate all such parcels in accordance with the department's record of decision and under department oversight and any such parcel cannot be used until such successor in title meets the department-determined remedial objectives for that parcel to the department's satisfaction within such time period as the department may require;

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

(iv) any engineering or institutional controls (including deed restrictions), or both such controls, that the department may deem necessary to allow the contemplated use of the property to proceed will be imposed and maintained. The municipality will cause the development of a plan, and submit such plans 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, ECL 56-0509.1 will have no force and effect;

(v) the department will have access to the property, at times appropriate to the circumstances and subject to the property's health and safety plan, for purposes of ensuring that

('a') the property is investigated or remediated in accordance with the department-approved plans for the site investigation or remediation, and

('b') the operation, maintenance, and monitoring plan identified in section 375-4.9(c) is being implemented satisfactorily, and

('c') the engineering and/or institutional controls described in 375-4.6(a)(1)(iv) are continually maintained in the manner the department may require, and

('d') the department may carry out any measures necessary to return the property to a condition sufficiently protective of human health, in accordance with ECL 56-0509.4; and

('e') neither the municipality nor any of its lessees or successors in title shall interfere with such access.

The municipality must make this binding commitment by means of a restrictive covenant, a declaration of restrictions, or lease provisions, which provide that the department (in addition to the municipality) may enforce the restrictive covenant, declaration of restrictions, or lease provisions, and that the municipality shall record with the recording officer of the county or counties in which the property is located within forty five days of the receipt of notice from the department that the state Comptroller approved the state assistance contract. Such restrictive covenant, declaration of restrictions, or lease provisions shall contain: the name of the owner of the property; a description of the property and the tax map parcel number of the property; reference to the state assistance contract; a statement that the terms contained in the state assistance contract and in the restrictive covenant, declaration of restrictions, or lease provisions affect the property and shall run with the land and bind all successive grantees, lessees, sublessees, occupants, and lienors; a statement requiring that any future disposition of the property or any interest therein, including a security interest, shall make reference to the state assistance contract and the restrictive covenant or declaration of restrictions or lease and that such subsequent disposition or security interest is subject to the terms contained in the state assistance contract, restrictive covenant, declaration of restrictions, or lease;

(2) The municipality must revise any existing leases concerning the property, or any portion of it, to ensure that the property'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; and the municipality must provide the department with access to the property, at times appropriate to the circumstances and subject to the property's health and safety plan, if any, for purposes of ensuring that

(i) the property is investigated and remediated in accordance with department-approved plans,

(ii) the operation, maintenance, and monitoring plan identified in section 375-4.9(c) is being implemented satisfactorily,

(iii) the department may carry out any measures necessary to return the property to a condition sufficiently protective of human health, in accordance with ECL 56-0509.4, and

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

(3)

(i) Except as provided in section 375-4.6(a)(3)(ii), in the event that any (or any combination of):

('a') federal payments that pertain to the project;

('b') responsible party payments or other consideration; or

('c') any other payments or other consideration received with respect to the project,

become available that were not included in the calculation of state assistance under the state assistance contract, the department will recalculate the amount of state assistance, and the municipality must pay to the department the amount by which the state payment actually made exceeds the recalculated state assistance. The municipality must immediately notify the department in writing of its receipt of reimbursement from other sources for any expenditure for which state assistance may be provided under the state assistance contract.

(ii) In the event that there is a disposition of the property, or any portion of such property, in addition to any recalculation of state assistance under section 375-4.6(a)(3)(i), the department will recalculate the amount of state assistance using the value of the disposition of the property, and the municipality must pay to the state, in addition to any money that may be required to be paid under section 375-4.6(a)(3)(i), an amount of money by which the state payment actually made exceeds the recalculated state assistance. For purposes of this section, the "value of the disposition of the property", or that portion of the property that is disposed, consists, if the property is disposed by transfer of title, of the higher of the property's sale price or the property's fair market value at time of sale; or, if the property is disposed by lease, the higher of the present worth of the stream of rent over a 30 year period beginning the effective date of the state assistance contract or the present worth of the fair market value of the stream of rent over the same period. However, if the property is located in an economic development zone or in a zone equivalent area, as those terms are defined in sections 957 and 959(bb), respectively, of the general municipal law; or if the property is located in a project area that is the subject of a redevelopment plan approved by the municipality's legislative body under article 18-B of the general municipal law; or if the property will be used to maintain or expand the supply of housing for persons of low income and families of low income, as section 2 of the private housing finance law defines them, then if the property is disposed by sale, the "value of the disposition of the property", or that portion of the property that is disposed, consists of the property's sale price; or, if the property is disposed by lease, the present worth of the stream of rent over a 30 year period beginning the effective date of the state assistance contract.

(4) In the event that the moneys received from any federal payments and any moneys or other consideration received from responsible parties, from disposition of the property, or any other source or any combination of these monies or consideration, exceed the municipality's cost of the property (which, for purposes of ECL 56-0503.2.d, consists of the municipality's basis of the property, which is determined using generally accepted accounting principles, including those approved for municipal entities, and includes taxes owed to the municipality upon acquisition of title, and the municipality's costs to maintain the property, to prepare the property for disposition, and to dispose of the property) and the cost of the project, such excess must be divided equally between the municipality and the state of New York. The municipality must make immediate payment of such excess moneys to the department upon receipt by the municipality of such excess moneys;

(5) If the commissioner determines that the municipality has failed to comply with any of the requirements of applicable state or federal laws and regulations, or with any of the requirements of the state assistance contract; or if without good cause, as determined by the department, the municipality:

(i) failed to initiate, proceed with, or complete the department-approved project in accordance with its schedule; or

(ii) changed the department approved project or any portion thereof without the department's prior written approval,

the department will notify the municipality of such failure, setting forth in writing the reasons for such determination, and will afford the municipality a reasonable time within which to cure such failure. The department will suspend payments under the state assistance contract until the municipality has cured the failure;

(6) 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; and

(7) The municipality must assist the department or other state agencies in compelling responsible parties to contribute to the cost of the project at the property, 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 hazardous substances disposed at, or released from, the property.

(b) Upon the state's execution of the state assistance contract, the municipality and those identified in ECL 56-0509.1(a) will have the benefits identified in ECL 56-0509 commencing the date of the department's approval of the state assistance application provided the project is completed to the department's satisfaction.

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

(d) Remediation project costs for purposes of state assistance calculation will be limited to no more than 105 percent of the eligible portion of the municipality's selected contractor's bid/proposal price. Requests to exceed such amount will only be considered if funds are available, the municipality provides sufficient justification, and the department approves the exceedance amount.

§375-4.7         Costs.

(a) The following costs are not eligible for being considered in the calculation of state assistance under ECL article 56, title 5: 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) In violation of law;

(3) To operate and maintain the property after construction of the department-approved remedy;

(4) 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, however, that costs associated with lead abatement projects consisting of measures designed to reduce lead in or on environmental media are eligible, within the limits of the state finance law, for being considered in the calculation of state assistance under ECL article 56, title 5);

(5) To redevelop the property that are not necessary to remediate the property.

(b) The following costs are eligible, within the limits of the state finance law, for being considered in the calculation of state assistance under ECL article 56, title 5:

(1) Those authorized by the municipality and the department that are directly related to the project's implementation;

(2) Those to implement the department-approved SI/RAR workplan;

(3) Those to implement the measures necessary to satisfy the requirements of sections 375-4.4(b)(6) and (7) of this title, where such costs were incurred on or after June 6, 1996 or the start date identified in the state assistance contract, whichever is later;

(4) Those to implement the department-approved remediation workplan, including those remediation costs incurred with the department's prior approval after the ROD's issuance.

(c)

(1) Costs to demolish structures and dispose of the resulting demolition debris are eligible, within the limits of the state finance law, for being considered in the calculation of state assistance under ECL article 56, title 5 but at a reimbursement rate of up to 50 percent. Costs associated with the disposal of any such resulting demolition debris that must be disposed in a disposal facility subject to part 373 of this title are eligible, within the limits of the state finance law, for being considered in the calculation of state assistance under ECL article 56, title 5, at a rate of up to 75 percent. In no event, however, will the department reimburse costs of a project consisting exclusively, or almost exclusively, of demolition of a structure.

(2) Costs 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, within the limits of the state finance law, for being considered in the calculation of state assistance under ECL article 56, title 5 but at a reimbursement rate of up to 50 percent. However, costs associated with the disposal of any such asbestos that must be disposed in a disposal facility subject to part 373 of this title, or any asbestos outside a structure, may be reimbursed at a rate of up to 75 percent. In no event, however, will the department reimburse costs of a project consisting exclusively, or almost exclusively, of asbestos abatement inside a structure.

(d) The department will determine on a case-specific basis the eligibility, and reimbursement rate, of any cost a municipality may incur that is not identified in sections 375-4.7(a) and 375-4.7(b). In making such determinations, the department will consider the following factors: whether

(1) Incurring the cost is necessary for conduct of the approved project;

(2) It is a reasonable cost that was incurred under contract or municipal force account preapproved 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

(3) It is properly documented.

§375-4.8         Investigation and remedial decision making.

(a) A project consisting of a property's investigation consists of the property's site investigation, the remedial alternatives report, and the department's record of decision. See section 375-1.10(d) for a description of the record of decision's contents. The municipality must implement the department-approved SI/RAR workplan, as may be revised.

(b) The SI/RAR workplan must include, but is not limited to:

(1) A scoping of the project, including measures necessary to satisfy the requirements of sections 375-4.4(b)(6) and (7) of this Title, to understand the nature and extent of the property's contamination and to evaluate appropriate remedial alternatives, sufficient to allow evaluations of levels of effort, cost, and implementation schedule to determine the project's eligible costs; and

(2) A public participation plan that outlines how the municipality will comply with section 375-1.5, as modified for purposes of this subpart by section 375-4.8(c).

(c) The department will select the remedial action to be undertaken for the property after providing the public a 45-day period within which to submit written comments on the proposed remedial action plan for the property. If those who submit comments are members of the affected community and raise significant substantive issues on the proposed remedial action plan, the department will hold a public hearing on the proposed remedial action. The department will select the property's remedial action in a record of decision upon due consideration of the factors set forth in sections 375-1.10(c)(1) to 375-1.10(c)(7), inclusive, with the goal of the remedial action being that described in section 375-1.10(b). The department may select a remedial action different from the one originally proposed, based upon reconsideration of the original proposal after evaluation of comments received, if any, and after further reflection.

§375-4.9         Remediation.

(a) If the project that is the subject of a state assistance contract consists of remediation of the property, the project will consist of two components: design of the remedy and implementation of the design. Nothing in this section, however, precludes a municipality from bidding a combined design/construction contract within the limitations provided in law governing that municipality's procurement.

(b) Under the state assistance contract for the remediation project, the municipality must design the remedial action for the property that the department selected in the record of decision and must implement the design that the department approves.

(c) The remedial design must include an environmental sampling program as part of the draft operation, monitoring, and maintenance plan, if that plan is needed. The municipality must submit to the department the final operation, monitoring, and maintenance plan just before the completion of construction of the remedial design. Discoveries and modifications made during construction may change the final operation, monitoring, and maintenance plan. A remediation project will be considered complete once the department approves the final operation, monitoring, and maintenance plan, if that plan is needed.

[ End of SubPart 375-4 ]

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