1.1 Applicant Eligibility

     An eligible applicant is a municipality, defined as a local public authority or local public benefit corporation, a County, City, Town, Village, school district, supervisory district, district corporation, improvement district within a County, City, Town, or Village, or an 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 of these.

      A municipality is eligible for financial assistance for an Environmental Restoration (Brownfield) Project if it meets the following general eligibility criteria:

1. The municipality will own the property subject to a Brownfield Project (the project) prior to approval of the State Assistance Contract (grant). If the municipality currently owns the property, proof of ownership must be submitted with the application;

   NOTE: The municipality does not have to own the property at the time of application nor by the time that DEC approves the application. However, the municipality must have ownership before execution of the State Assistance Contract.

2. The project's purpose is to investigate or remediate hazardous substances (as defined by Environmental Conservation Law [ECL] 56-0101.11) located on the property [NOTE: Hazardous substances include those defined in 6 NYCRR 597.1(a)(3)];

3. The municipality has not generated, transported or disposed of, nor arranged for or caused the generation, transportation or disposal of, hazardous substances on the property; and has not undertaken, and will not undertake, any indemnification obligation respecting a party responsible under law for the remediation of the property. (NOTE: For eligibility purposes, a municipality is not considered to be an arranger if the municipality has leased the 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 that property, and the municipality either 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. In addition, 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);

4. The property is not a Class 1 or 2 site listed on the New York State Registry of Inactive Hazardous Waste Disposal Sites at the time of application;

5. The project satisfies the criteria of ECL 56-0505. At a minimum, the applicant 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 of the property.

     The municipality must enter into a State Assistance Contract with the State in which, among other things, the municipality agrees to initiate field work within 12 months of the DEC's written approval of its application (or such other time period as the DEC may approve on a case-specific basis) and that it will complete the project in accordance with department-approved plans and schedule.

1.2 Application Processing and Prioritization

      Before applying for State assistance for a brownfield project, a municipality should review the five general eligibility requirements in Section 1.1 to determine if its project is eligible for this program. The municipality should only apply for those eligible projects for which it has the financial resources to initiate field work within 12 months of the DEC's written approval of its application. A municipality must reapply for any project for which it has not initiated field work in that time frame unless the Department approves otherwise. Any applications received by the Department which are for ineligible projects will be denied.

      Municipalities must submit three complete copies of the application. Two copies of the complete application, one with original signatures, must be sent to the DEC's Division of Environmental Remediation, 50 Wolf Road, Room 260A, Albany, N. Y. 12233-7010 and one copy of the complete application must be sent to the DEC regional office covering the county in which the property is located (see the Regional Office map in the application package for mailing information). In order for the Department to make an eligibility determination, the application must be complete (see section 2.0 for a description of a complete application). Applications for eligible projects will be processed as follows:

Step 1:  Applications will be processed based on when they are received in the DEC's Albany office. If applications are received by 4:30 P.M., they are date-stamped in for that day.

Step 2:  Applications are reviewed for completeness as they are received. If the Department determines the application is complete, Step 3a (investigation) or Step 3b (remediation) is followed. If it determines the application is incomplete, the municipality is notified in writing of the deficiency and may reapply by submitting the additional information. Once the additional information is submitted and the application is determined complete, Step 3a or 3b is followed.

Step 3a:  Applications for Investigation

Complete applications for investigations must satisfy the criteria listed in section 1.1 above. Projects satisfying those criteria will be reviewed on a first-come, first-served basis. If available funds for investigations are sufficient, then all complete applications that satisfy the criteria in section 1.1 will be approved and Steps 4 and 5 are followed. If available funds are insufficient, the investigation projects will be placed on the list of complete applications in chronological order, based on the date the Department determined them complete, and they will be held until funding is again available. The municipality will be notified by the Department in writing if this occurs.

Step 3b:  Applications for Remediation

Complete applications for remediation will be placed into groups periodically based on when they are received in the Department's Albany office as described in Step 1. The Department will score each application according to the Environmental Restoration Project prioritization criteria. These criteria are (a) the benefit to the environment, (b) the economic benefit to the State, (c) the potential opportunity of the property to be used for public or recreational purposes, and (d) the availability of other funding sources to remediate the property. To be eligible, a project must meet a minimum priority ranking score (Refer to the priority ranking system score sheet in Appendix 3). If available funds are sufficient, all eligible project applications will be approved. If available funds are insufficient, eligible projects will be ranked according to their priority ranking score. The Department will approve applications in accordance with their rank. In the case of identical scores, approvals will be made in the order that the complete applications were received. Application approval will stop when funds are no longer available. Applications which were not approved due to insufficient funding will be reconsidered for funding during the next time period that funds again become available.

Step 4:  The Department will provide written notification of application approval/disapproval and any reasons for disapproval. NOTE: APPROVAL OF AN APPLICATION FOR INVESTIGATION DOES NOT PROVIDE ANY ASSURANCE OF APPROVAL OR AVAILABILITY OF FUNDS FOR REMEDIATION.

Step 5:  If the field work for a project is not initiated within 12 months of the Department's written approval of that project's 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 municipality must reapply for that project beginning with Step 1. The Department will reallocate those monies for other complete applications.

     It should be noted that a complete application is one that contains enough information for the Department to determine the project's eligibility. An approved application is one that is both complete and may be funded based on the funds available.

      Eligibility of project costs and the liability protection afforded in accordance with ECL 56-0509 (see section 9.0 for a summary of the liability limitation) begin as of the date the Department approves a municipality's application. The final scope of work and grant amount will be approved once a project workplan and budget have been negotiated and may differ from the specific items of work and grant amount requested in the application.

2.1 A Complete Application

     The following documents, which are further defined below, are required to be submitted as part of a complete application:

1. The Application Form;

2. An approved Municipal Authorization with certification, if appropriate; and

3. A description of the project, which must include:
   1. The purpose and scope of the project;

   2. A summary of the property's environmental history;

   3. A description of the property's intended future use (if known);

   4. An estimate of the project's cost;

   5. A list of other funding sources or potential funding sources for this work;

   6. A brief discussion of how the proposed project would satisfy the criteria of ECL 56-0505; and

   7. A site location map and a tax map for the site.

4. For remediation projects only, compliance with the State Environmental Quality Review Act (SEQRA) must be demonstrated.

        If applying for an investigation grant a municipality is not subject to the provisions of the SEQRA. Investigations of properties are considered Type II actions and, as such, do not require any review under the SEQRA.

     IT IS IMPORTANT THAT THE MUNICIPALITY SUBMIT A COMPLETE APPLICATION SINCE APPLICATIONS CANNOT BE CONSIDERED FOR FUNDING UNTIL SUCH TIME THAT THEY ARE DETERMINED COMPLETE BY THE DEC. DEC MUST HAVE SUFFICIENT INFORMATION WITH THE APPLICATION TO DETERMINE ELIGIBILITY AND WHETHER THERE ARE SUFFICIENT FUNDS AVAILABLE FOR THE PROJECT.

2.2 Contents of Application

1. The application form requires general information about the municipal applicant, allows for detailed information to be attached, and contains a CERTIFICATION which must be endorsed by the individual authorized to do so by the municipality.

2. The application must include a certified copy of the municipal authorization which designates by title (Mayor, Town Supervisor, etc.) the representative authorized to act on behalf of that municipality in all matters related to financial assistance. The authorization must empower the representative to make application, execute the State Assistance Contract, and otherwise act for the municipality in all State assistance-related matters. A sample form of the authorization is provided in the application package. If the authorization is in the form of a resolution, it must be accompanied by a certification with an original signature. Except as provided in section 2.2 paragraph 3, costs associated with the preparation and submission of the application and its attachments are not eligible for State assistance purposes.

3. The application's description of the project must include the following components:
   1. The purpose and scope of the project. This section identifies the investigative or remediation activities proposed at the property.

   2. To the extent that existing studies/reports are readily available to the applicant, a description of the environmental history of the property. This section briefly describes, to the extent that this information is readily available to the applicant, previous uses of the property, types of operation, the chemicals used on the property, by-products or wastes produced by previous activities on-site, and a list of any orders, decrees, or other legal documents regarding violations of the Environmental Conservation Law or equivalent federal environmental statutes.

   3. To the extent known, a description of the contemplated future use of the property. This information will be used to assist in the determination of the project's economic benefit to the State and any potential for public or recreational use of the property. The definition of the property's Contemplated Use must also be included in the State Assistance Contract to trigger the notification requirements if that use is changed. NOTE: Approval of an application does not in any way indicate the Department's approval or endorsement of that use nor will it influence any determination regarding final decisions for permits or approvals required for that use. Approval of the application does not obviate the need for any approvals or permits that might be required for that use.

   4. The estimated project cost or budget must be included with the application. The estimated project cost will be used to determine if sufficient funds are available for the project.

   5. If the municipality is aware of other funding sources or potential funding sources for the project (e.g., federal grants, private developers, the previous owner or operator) it must include such information with its application.

   6. The municipality must also provide a brief discussion of how the proposed project would satisfy the four criteria described in ECL 56-0505.

   7. The site location map must be a U.S. Geologic Service quadrangle map or equivalent. The property's tax map must indicate section, lot, and block numbers.

4. For remediation projects only, to demonstrate compliance with the SEQRA, a negative declaration, or in the event an environmental impact statement was prepared, a Findings Statement, must be submitted with the application. Since the issues involving brownfield cleanup and redevelopment are primarily local in nature, it is strongly recommended that the municipality assume lead agency status on an action and coordinate review of the action with all involved agencies (including DEC). An environmental assessment must be conducted of the "whole action", by the lead agency, i.e., the remediation and redevelopment. If the environmental assessment results in a negative declaration, SEQRA responsibilities end notwithstanding appropriate publication requirements. If a positive declaration is issued by the lead agency, then a Final Environmental Impact Statement and Findings Statement must be prepared before the action can go forward and before DEC can issue the grant. SEQRA determinations must be submitted as part of a complete application.

5. The municipality must register all known petroleum and chemical storage tanks on the property and, if out-of-service, properly close such tanks either before applying for State assistance under this program, or within the approved investigation project schedule. Municipalities must also agree to remove and properly dispose of hazardous substances within all containment vessels (such as drums, transformers, sumps, and pits) on the property, within the approved investigation project schedule. Costs associated with these registration, closure, and disposal activities are eligible for State assistance purposes if those costs are incurred on or after June 6, 1996.

3.1 Selection of Professional Consultant

      Municipalities must follow the provisions of General Municipal Law in procuring their consultant. Note: the procurement of a professional consultant does not have to be completed by the time the application is submitted. There should be a municipal/consultant contract in place by the time the State Assistant Contract is negotiated since the SAC should include as reliable an estimate of costs as possible.

      The applicant's authorized representative must submit:

1. a description of the process it used in procuring a consultant (how advertised, how many firms responded, how the firm was selected). If the procurement was not for the brownfield project, the description should provide the rationale for using the prior procurement for this project.

2. a statement that this procurement was done in compliance with General Municipal Law, section 104(b).

3. a description of the consultant's expertise in investigating environmental contamination. Note: if the consultant is on DEC's Qualified Remedial Consultants (QRC) List, no such description is necessary. That description must document that the firm employs a sufficient number of staff with experience of sufficient duration, diversity, and expertise to complete the proposed project. In general, minimal qualifications must consist of completion of three projects of similar type and scope by either the consulting firm or by the project manager for the brownfield project. For these three projects, the consultant must include a client contact and phone number.

Note: While the site investigation does not require a professional engineering firm to perform the work, the remedial alternatives report, remedial design, and construction oversight/final engineering certification report all require a New York State licensed professional engineer's stamp before the Department will approve them.

3.2 Consultant Contract

      Contract negotiation is a critical step in the use of consultants. Once a consultant has been selected, negotiations are initiated in an attempt to reach agreement on the following:

1. The scope of services to be performed
   1. tasks to be performed
   2. the level of effort per task
   3. deliverables
   4. review procedures

2. the method of contracting
   1. cost plus fixed fee (preferred method)
   2. fixed price (lump sum) is only an option for those contracts under $25,000

3. the contract price

4. the contract terms and conditions
   1. change in scope
   2. termination rights
   3. method of payment
   4. amendment provisions

      Appendix 2 identifies the Department's mandatory contract clauses which are based on Appendices A and B of the State Assistance Contract and must be incorporated in any contracts for which the municipality seeks reimbursement in this program.

3.3 Costs of a Consultant Contract

      DEC strongly recommends a cost-plus fixed fee method of reimbursement for investigation projects in the Brownfields program. The rationale is the scope and level of effort required are not precisely known prior to undertaking the project. Thus, a lump sum contract is not appropriate for an investigation project unless the project is relatively small. All costs, including the overhead rate, should be negotiated by the municipality. To assist municipalities, DEC has information available on costs which they have negotiated with consultants working on hazardous waste sites.

      Generally, DEC will not participate in overhead and profit which are more than 180% of direct costs.

4.1 State Assistance Contract Process

      Upon approval of the application, the municipality and DEC will negotiate a detailed workplan and associated budget for the project. If the negotiated budget exceeds the original application amount, the municipality must request the increase in writing and the DEC will either approve the increased budget if funds are available, or inform the municipality that its request for additional funding will be approved once funding is again available. The municipality may either proceed with the project without full funding (in which case it would receive additional funding once it becomes available), or may decide to withdraw the project application and reapply for the full amount at a later date. If the municipality decides to withdraw the application, the funds for the project will be reallocated by the State to other approved projects.

      For remediation applications only, the best available estimate of the cost to construct the Department's selected remedy will provide the basis of the remediation project budget. If an engineer's estimate is proposed to be used for this purpose, the Department must determine that the engineer's estimate provides a reasonable estimate and breakdown of the eligible and ineligible costs of the construction before a State Assistance Contract may be issued.

      Once the workplan and budget are approved, the Department will provide instructions for executing the State Assistance Contract. A sample State Assistance Contract is included in the Environmental Restoration (Brownfield) Project Application Package. This sample contract should be reviewed by the municipality as soon as possible to ensure that the contract language is acceptable, however, significant deviation from the standard language may delay execution of the contract. State payment procedures are described in Section 8.4 and specified in Schedule B of the contract.

      Since this is a reimbursement program, the State Assistance Contract amount is only an estimate of the eligible costs. Actual reimbursement will depend on the proper procurement and documentation of costs incurred. Therefore, the total contract amount should be viewed as a not-to-exceed number and not a guaranteed reimbursement amount.

      The State Assistance Contract will require the municipality to assist the Department and/or the State in compelling responsible parties to contribute to the cost of the project at the property. This would normally consist of providing the State with all of the information which the municipality is aware of or gathers during the project related to responsible parties' contributions to the hazardous substances on the property.

4.2 State Assistance Contract Amendments

      When a municipality identifies changes in project scope which would require that additional costs be incurred to complete a project which is being funded, it may apply for an amendment to its State Assistance Contract. The municipality must request the increase in project scope and cost in writing and provide justification for the increase. Application for amendments to increase the project's scope will be approved based on the justification provided and the availability of funds as described in Section 1.2.

      A revised Application Form, municipal authorization (if necessary), revised scope of work or amendment to the scope of work, and a revised budget must be submitted with a request for an amendment. The municipality must submit written justification to the DEC explaining the reasons for the amendment. If the change in scope includes a request for an extension of time, then a revised project schedule must be included with appropriate justification.

      All requests for an increase in the contract amount must include 1) a revised cost per task estimate; 2) proposed municipal/consultant contract revisions; and 3) any proposed rebudgeting of other tasks.

4.3 Affirmative Action Program

      In accordance with New York State Executive Law, Article 15-A State assistance recipients are to implement a comprehensive affirmative action program. The potential recipient of State assistance is to submit an Affirmative Action (AA) Work Plan. The AA Work Plan is to be submitted once the Site Investigation/Remedial Alternatives Report (SI/RAR) Work Plan is finalized. The AA Work Plan will establish two (2) contracting goals, one (1) for the participation of minority business enterprises, and one (1) for the participation of women business enterprises; and two (2) equal employment opportunity goals, one (1) for minorities, and one (1) for women in the workforce of contractors or consultants participating on the project. The applicant for State assistance is to designate an AA Representative who will be responsible for the administration of the approved affirmative action program and for documenting the recipient's and contractor's/consultant's efforts to comply with the approved AA Work Plan.

      The AA Work Plan also contains a brief project description that outlines the proposed contracts and the associated costs of each contract making up a project. The Affirmative Action Policy Statement is a brief statement which commits the applicant to carry out the intent of New York State Executive Law, Article 15-A. AA Work Plan forms and sample forms are available from the Department.

      DEC's Bureau of Procurement Services - Minority/Women's Business Enterprise (M/WBE) Office is responsible for the review and the approval of the AA Work Plan and will monitor compliance with the approved Work Plan throughout the life of the project. In approving the AA Work Plan, the M/WBE Office will take into consideration such factors as: the dollar value of the contracts associated with the project; the size, scope and duration of the contracts; the geographical location of the project; the type(s) of work to be performed; the experience with similar projects in the same geographical area; the availability of New York State certified M/WBE's and the availability of minorities and women for the workforce.

      The Bureau of Procurement Services-M/WBE Office will establish both M/WBE and Equal Employment Opportunity (EEO) program goals and the recipient of the State assistance will be responsible for the implementation of the approved affirmative action program. The recipient of State assistance will be responsible for the monitoring of compliance with the approved affirmative action program on individual contracts throughout the life of the project to ensure that the project goals specified in the approved AA Work Plan are met.

      The M/WBE Office will monitor the State assistance recipient's progress in meeting the established goals throughout the project duration and will provide the necessary technical assistance to ensure the success of the program. The State assistance recipient's failure to obtain the stipulated goal percentages, or to demonstrate documented good faith efforts to do so, may lead to the withholding of progress payments until effective remedial steps have been implemented or other sanctions as provided for by New York State Executive Law, Article 15-A.

      The Bureau of Procurement Services-M/WBE Office should be contacted at 518-457-5490 for more information on the M/WBE-EEO program requirements.

4.4 Utilization of Minority and Women's Business

      Contract documents (as well as engineering documents) must require the contractor to make good faith efforts to subcontract certain percentages of the total contract value to New York State certified MBE and WBE firms unless a waiver is granted. DEC's Bureau of Procurement Services-M/WBE Office will determine appropriate percentages at the time a municipality applies for State assistance under the Brownfields Program. The contractor's failure to obtain the stipulated percentages, or to demonstrate documented good faith efforts to do so, may lead to the withholding of payments or the imposition of other sanctions as provided for by New York State Executive Law, Article 15-A.

      The following procedures should assist in the implementation of a successful affirmative action program:

1. Contract Provisions

   The recipient of the State assistance must develop affirmative action provisions to be included in all contract bid announcements and contract documents associated with the referenced project.

2. M/WBE Program Goals

   AA Program goals are placed on the amount of the State assistance provided. Goal amounts are calculated as a percentage of the State assistance and not as a percentage of the total project amount.

   The State places affirmative action program goals on the State Assistance Contract and the community which is the recipient of the State Assistance Contract should place affirmative action program goals on contracts which they award.

3. Solicitations

   The recipient of State assistance must include New York State certified M/WBE's in all solicitation activities for supplies, materials, services and contracts associated with the referenced project.

   The recipient of State assistance must undertake other actions which assure the meaningful participation of New York State certified minority business enterprises (MBEs) and women's business enterprises (WBEs) on all contracts associated with the Brownfields State Assistance Program, as well as to assure the meaningful participation of minorities and women in the labor force associated with that State Assistance Program. The recipient should:

   1. Divide total requirements, when economically feasible, into small task or quantities to permit maximum participation by minority and women's business enterprise M/WBEs;

   2. Establish delivery schedules, when the requirements of the work permits, which will encourage participation of M/WBEs;

   3. Attempt to ensure that plans, specification requests for proposals and other documentation used to secure proposals for the performance of work or supply of materials will be made available in sufficient time for review by prospective M/WBEs;

   4. Encourage, where economically and technically feasible, the formation of joint ventures, partnerships or other arrangements among contractor to enhance participation by M/WBEs;

   5. Make efforts to ensure that progress payments to M/WBEs are made on a timely basis and with such frequency that undue financial hardship is avoided or appropriate alternatives developed to encourage M/WBE participation;

   6. Place timely advertisement in appropriate general circulation, trade and minority and women oriented publications;

   7. Make written solicitation in a timely fashion of M/WBEs listed in the directory of Minority and Women-owned business enterprise available from:

      Empire State Development Corp.
      Minority & Women's Business Develop. Div.
      One Commerce Plaza
      Albany, New York 12245
      Telephone: (518) 473-0582
      Fax: (518)473-0665

                      and

      Empire State Development Corp.
      633 Third Avenue
      New York, NY 10017
      Telephone: (212) 803-2414
      Fax: (212) 803-3223
      Internet: www.empire.state.ny.us.\est.htm

   8. Utilize to the fullest extent possible the resources of the New York State Department of Environmental Conservation's Bureau of Procurement Services - M/WBE Office, (518) 457-5490.

4. Participation of M/WBE's on Contracts -$10,000 or Less

   In order to facilitate M/WBE participation on State assisted contracts, the procurement of services of $10,000 or less may be made on the basis of a single solicited proposal if the price is reasonable. As a general rule, reasonableness of price is determined in the following ways:

   1. By comparing the solicited price with the price for the same or similar services within the last six months;

   2. By comparing the price with those of other prospective contractors; or

   3. By comparing the solicited price to prices listed in publications such as the "Means Build Construction Cost Data" catalog.

   Finally, the recipient of State assistance may establish reasonableness by reviewing the type of work that was previously accepted by the Department at a similar cost, or, if the supplier can justify the price of the product by the current market value of the same product.

5. Qualifying Paperwork

   To verify actual M/WBE participation, the following documentation is to be collected from the various contractors and consultants utilized on the project. This documentation should include, at a minimum, the following:

   1. Copies of legally signed and executed M/WBE contracts or subcontracts representative of the M/WBE goal amounts.

   2. If purchase orders are utilized, copies of legally signed and executed purchase orders accompanied by copies of both sides of legally signed and canceled checks.

   3. Copies of documents which reflect the actions of the State assistance recipient in support of the affirmative action program.

6. Reports

   The State assistance recipient is to provide the Bureau of Procurement Services-M/WBE Office with accomplishment reports on a quarterly basis. Quarterly reports should include a summary of M/WBE activities and a review of progress being made towards achieving the established M/WBE-EEO objectives. Quarterly reports are to be submitted to the M/WBE Office within ten (10) business days of the close of each State fiscal year quarter (January 15, April 15, July 15 and October 15).

7. Work Completed Prior to Program Application

   The recipient of State assistance should summarize the following information for work which had been completed prior to program application and which is not presently available for M/WBE-EEO program activities. The prorated dollar amount(s) of this type of work will be excluded from the amount of the State Assistance Contract upon which affirmative action program goals are calculated. The required information is as follows:

   1. Prime contracts - name of prime contractor/consultant, contract description, contract amount and dates.

   2. Subcontracts - name of subcontractor(s)/ subconsultant(s), subcontract description, subcontract amount and dates.

   3. M/WBE identification - make note of any New York State certified M/WBE's utilized as contractors or subcontractors. If this information is not known, the Bureau of Procurement Services-M/WBE Unit will review the State Directory and provide appropriate credit to the Affirmative Action Program of the recipient of the State assistance.

8. Force Account Work

   For those State assistance recipients utilizing force account services (services or activities associated with the assisted project which have been completed by the recipient's own workforces), the qualified value of the force account work will reduce the State assistance amount used to calculate affirmative action program goals. In effect, the dollar value of the affirmative action goals will be reduced due to a reduction in the amount of the State assistance used in the calculation.

      The Site Investigation/Remedial Alternatives Report (SI/RAR) may utilize a phased approach. This phased approach may allow the alternatives under consideration in the RA report to focus the data needs of the SI.

5.1 Site Investigation/Remedial Alternatives Report Work Plan

      The SI/RAR Work Plan will be a detailed description of the approach for completion of the SI/RAR. The work plan must be consistent with all applicable law, specifically the requirements of New York State Environmental Conservation Law. DEC must approve the SI/RAR Work Plan prior to the start of any work in order for the costs to be eligible for reimbursement. The work plan shall include, but not be limited to:

1. A scoping of the Site Investigation and Remedial Alternatives Report. The applicant will assemble and evaluate, as appropriate, existing data pertaining to the property;

2. A plan of work which describes in detail the steps which will be taken to characterize the property and off-site impacts of the property. The goal of the SI Work Plan is to generate sufficient information to:
   1. Identify and characterize the sources of contamination,

   2. Describe the amount, concentration, persistence, mobility, state (e.g., solid, liquid), and other significant characteristics of the contamination present, both on-site and off-site,

   3. Evaluate the extent to which natural or manmade barriers currently contain the contamination,

   4. Define the extent to which the contaminants have migrated or are expected to migrate and whether future migration may pose a threat to human health or the environment,

   5. Identify all potential routes of exposure,

   6. Identify populations and environmental receptors at risk,

   7. Define hydrogeological factors (e.g., soil permeability, depth to saturated zone, hydrologic gradients, proximity to a drinking water aquifer, flood plain, or wetland),

   8. Describe groundwater characteristics and current and potential groundwater use,

   9. Identify private wells in the area and include an appropriate sampling plan for them,

   10. Identify surface water classifications and existing use designations,

   11. Qualitatively describe the property's contribution to an air, land, water, biota, or food chain contamination problem,

   12. Determine the extent to which contamination levels pose an unacceptable risk to public health and/or the environment,

   13. Discuss other appropriate factors;

3. A section describing the site-specific field sampling plan and a section describing the Quality Assurance/Quality Control (QA/QC) procedures to be used during the SI/RAR. The QA/QC procedures must detail how the data acquired during the project will be determined usable with respect to QA/QC and Data Quality Objectives requirements;

4. A Health and Safety Plan, which must be submitted prior to any field activity;

5. A Citizen Participation (CP) plan that outlines how the applicant will comply with the Division of Environmental Remediation's CP Program. See Section 6.0, Citizen Participation, for more details.

5.2 Site Investigation

     The Site Investigation will provide sufficient information to:

1. Fulfill the work plan objectives;

2. Make a preliminary identification of potential remedial alternatives;

3. Further define the study area of the SI/RAR;

4. Identify probable Standards, Criteria, and Guidance (SCG) and determine the extent to which they have been exceeded or contravened;

5. Perform a Health and Environmental Risk Assessment as necessary.

5.2.1 Site Investigation Reporting

     Draft Site Investigation Report

     The Draft Site Investigation Report may be an independent document, or be combined with the Draft Remedial Alternatives Report. A suggested format for the SI Report is provided in Appendix 1.

5.3 Development of Alternatives

     This phase may begin concurrently with or shortly after commencement of the Site Investigation. Alternatives may be considered in an iterative fashion; SI data will be used to develop and screen alternatives, and alternatives under consideration will guide additional work to characterize the property as necessary.

     The applicant will develop potential remedial action alternatives that may be used to clean up the property and to mitigate any off-site impacts from the property by:

1. Identifying potential general response actions;

2. Evaluating general response actions for effectiveness, reliability, implementability and cost;

3. Assembling suitable general response actions into alternative remedial actions.

      General response actions including treatment, containment, excavation, extraction, disposal and institutional actions must be initially defined during the development of alternatives. An initial determination of areas or volumes of each medium of interest is also made to which the general response actions might be applied.

      If existing property and/or treatment data is insufficient to adequately evaluate alternatives, further investigation may be required at this stage.

5.4 Detailed Analysis of Alternatives

      A detailed evaluation will be conducted on the alternatives. That evaluation will take due consideration of the factors identified in 6NYCRR375-1.10(c)(1-7, inclusive). The following evaluation criteria have been developed to address the technical and policy considerations that are important for selecting among remedial alternatives:

1. Overall protection of human health and the environment
   1. Exposure to human health and the environment after the remediation.

   2. Residual public health risks after the remediation.

   3. Residual environmental risks after the remediation.

2. Compliance with Standards, Criteria, and Guidance (SCG)

3. Short-term effectiveness
   1. Protection of community during remedial actions.

   2. Environmental impacts.

   3. Time to implement the remedy.

4. Long-term effectiveness and permanence.
   1. Lifetime of remedial actions.

   2. Residual risks.

   3. Adequacy and reliability of controls.

5. Reduction of toxicity, mobility and volume.
   1. Volume of hazardous substances reduced.

   2. Reduction in mobility of hazardous substances.

   3. Irreversibility of the destruction or treatment.

6. Feasibility
   1. Suitable to site conditions.

   2. Consideration of implementability.

   3. Availability of Services and Materials.

   4. Consideration of cost-effectiveness.

7. Community acceptance.

      The alternatives are analyzed against the first six criteria and then compared against one another to determine the most cost effective, protective remedy. The seventh criterion is evaluated by the Department once the public comment period has concluded.

5.4.1 Remedial Alternatives Report and Proposed Remedial Action Plan

       At the completion of this phase, the municipality will prepare the RA Report (or combined SI/RA Report) for DEC review. A suggested format for the RA Report is provided in Appendix 1. The Department will prepare a Proposed Remedial Action Plan (PRAP) which summarizes the proposed remedy for the property based on the findings of the SI/RA Report. A summary of Remedial Goals and whether they will be attained by a specific alternative will be presented in the SI/RA Report and PRAP. Once the SI/RAR and PRAP are ready for public release the municipality must notify the public and allow a 45-day comment period to receive written comments on the proposed plan as described in Section 6.1.1.1.h.ii.

5.4.2 Record of Decision

      After the 45 day comment period, public comments must be addressed through a Responsiveness Summary (RS). The municipality will assist the Department in the preparation of the RS. The Department will determine the need to modify the Proposed Remedial Action Plan or the need for a public hearing if substantive issues about the remedy have been raised by the affected community. All issues raised and responded to in the Responsiveness Summary will be considered by the Department in formulating its Record of Decision (ROD).

6.1 Purpose of Citizen Participation

      A major goal of citizen participation is to foster communication and trust between the public and government agencies in the effort to restore and maintain the environment and protect public health. Citizen participation also provides opportunities to gather the public's knowledge and information. This input is needed to make informed decisions about the property's investigation, the SI/RA Report and the property's proposed remedial action plan.

      Effective public input will help the municipality and the Department develop and implement a plan for site investigation which is environmentally sound, enjoys wide public acceptance and has high probability of timely implementation.

6.1.1 Citizen Participation Plan

      A Citizen Participation (CP) plan, or public participation plan as stated in ECL 56-0505.2, is a component of the SI/RAR work plan. Therefore, the municipality must submit, and DEC must approve, a CP plan for the brownfield project before the municipality initiates the SI fieldwork.

      The CP plan serves as an important tool to manage the project's CP program. The document identifies, at a minimum, the CP activities required to be conducted and their timeframes within the brownfield program. The CP plan also provides a context in which the CP activities will be performed, based on the important aspects of the project and the community in which it is proposed.

1. The CP plan will include, at a minimum, the following elements:
   1. Property information and background summary;

   2. Project description, including a brief description of the objectives of the investigation program;

   3. Schedule of the investigation program, including a listing of the key (major) decision points;

   4. Identification of a local document repository. The repository will help to ensure that pertinent documents and other project information are readily available to the public. Documents must be available to the public after normal working hours, and the public must be made aware of their availability. The appropriate DEC regional office also will serve as a document repository for the project;

   5. Identification and contact list of affected and interested parties, including:
      1. owners of properties which are adjacent to the property, at a minimum,

      2. Representatives of all organizations and groups with potential interest in activities at the property,

      3. local news media from which the community typically obtains information,

      4. people who may have information about the property who can assist in the development of the investigation program, and

      5. local government officials;

   6. Identification of municipal and DEC contacts,including the project managers and citizen participation contacts at the municipality, and in the DEC central and regional offices;

   7. Identification of significant issues of interest to the public about the property and the investigation program, and the information needs of the community, the municipality and DEC. This information will help the municipality and the Department to effectively implement CP requirements and to identify additional CP activities, if any, that should be conducted; and

   8. Description of specific citizen participation activities for each major element of the investigation program. The CP activities shall create opportunities for early, inclusive participation before the selection of a preferred course of remedial action. The CP activities shall include communication with the public at critical decision points in the investigation program. The following are required CP activities for all projects:
      1. announce through a mailing to the project's contact list and through local news media the availability of the SI/RAR work plan which provides a brief analysis of the proposed investigation field work;

      2. announce through a mailing to the project's contact list and through local news media the availability of the PRAP, a brief summary of the proposed cleanup, and a 45 day period for submission of written comments;

      3. administer 45 day public comment period before the remedial alternative is selected to obtain the public's views of the PRAP;

      4. prepare a Responsiveness Summary which addresses public comments about the PRAP;

      5. notify the public of the availability of the Record of Decision (ROD) when it is finalized.

2. Flexibility is needed to develop and implement an appropriate citizen participation program. Some projects may be complex, or create particularly important issues and information needs for the public, municipality and DEC. For these projects, additional, optional citizen participation activities may need to be considered at the following stages of the brownfield program:
   1. During the development of the SI/RAR Work Plan, before the start of field work;

   2. When the PRAP is released;

   3. When the ROD is signed.

   4. When final design is complete just prior to the start of construction;

   5. Upon completion of construction.

         Additional CP activities may include fact sheets, public notices, public availability sessions, and public meetings. Any reports, documents or other data that may be discussed at an availability session or public meeting should be placed in the project's document repositories at least 15 days before the meeting. In addition, public meetings should be announced through a mailing to the project's contact list and through local news media at least 15 days in advance.

3. The CP plan should establish provisions for technical assistance if so requested by members of the affected community. Such assistance may include additional time spent by the municipality's consultant with the affected community, as well as assistance provided by DEC project staff who shall be readily available to the public.

4. Applicants will provide the DEC Project Manager with all citizen participation related documents in draft form prior to their finalization and utilization. Moreover, the CP plan should be reviewed and, if appropriate, revised and updated during the project to reflect a better understanding of public interest or changes in the technical aspects of the project or the project schedule.

5. Some municipalities may subject brownfield projects to local land use review procedures. These review procedures may include equivalent provisions for citizen participation. The municipality may wish to demonstrate in its draft CP plan submission the extent to which the CP provisions of its land use review procedures satisfy or exceed the Department's CP requirements.

6. Additional written guidance is available from the Department to assist the municipality to prepare and implement its CP plan for brownfield projects.

7.1 Design Report

      The Remedial Design Report shall be in accordance with the proper application of scientific and engineering principles to eliminate or mitigate the threat a contaminated property presents to public health and the environment in accordance with the ROD and shall include, but not be limited to, the following:

1. a description of the means of implementing the remedy selected in the ROD and the quality control and quality assurance procedures and protocols to be applied to construction, to include but not be limited to:
   1. the management/treatment/disposal of hazardous wastes, hazardous constituents or toxic degradation products, and any soil or other materials contaminated thereby,

   2. the collection, treatment, and management of contaminated groundwater, leachate and air,

   3. the physical security and posting of the property,

   4. the health and safety of persons living and/or working at or in the vicinity of the areas being remediated,

   5. quality control and quality assurance procedures and protocols to be applied to the remedy's construction operations,

   6. integrated air monitoring on site during implementation of the remedy;

2. unless a combined design/construction contract is approved by the Department, bidding and contract documents for the construction of the elements of the remedy, including plans and specifications prepared and stamped by a licensed professional engineer registered in the State of New York, which shall satisfy all applicable state and federal laws, rules and regulations;

3. a time schedule consistent with requirements of the work plan for construction of the elements of the remedy;

4. the parameters, conditions, procedures and protocols to determine the effectiveness of the remedy, including (if necessary) a schedule for periodic sampling of existing and planned groundwater monitoring wells on site and off site;

5. a description of any necessary maintenance and monitoring activities, procedures and protocols to be undertaken during the period commencing upon completion of the construction of the elements of the remedy, including a provision for submission to the Department of periodic monitoring reports if required;

6. an identification of all necessary easements and/or permits.

7.2 Project Specifications

      Unless a combined design/construction contract is approved by the Department, the end product of the detailed Remedial Design is a set of plans, specifications, and detailed construction cost estimates which are suitable for bidding and construction. The plans, specifications and estimates must be as complete and accurate as possible. They must be approved by DEC prior to advertisement for bid.

      The provisions of applicable state laws must be satisfied when advertising for construction public works projects. To assist municipalities in satisfying most of these requirements, DEC will furnish Department requirements which must be included in every construction contract. Key elements of these requirements to be included in the contract documents are highlighted below. Note that the responsibility for complying with all applicable federal and state laws and regulations remains with the municipality.

7.2.1 Construction Contract Documents

      The bidding and contract documents shall contain at a minimum the following five items:

1. a statement of work, including drawings and specifications, and a required time-for-completion schedule;

2. the terms and conditions of the construction contracts;

3. an explanation of method of bidding, method of evaluating bid prices, the basis upon which award of the contract will be made and the procedures for payment for completed components of the awarded contract;

4. a statement indicating that the project is partially funded with State money but that the State is not a party to the awarded contract; and

5. Applicable clauses from Appendices A and B of the State Assistance Contract (See Appendix 2).

7.2.2 Prevailing Wage Rates

     All public works Construction Contracts are subject to the provisions of the State Labor Law. This law requires that construction contractors pay employees prevailing wage rates as established by the State Department of Labor. Rates are specified in wage decisions issued by the State Department of Labor for specific projects. They reflect prevailing wages paid to workers in various crafts in a given locality. Wage decisions and any modifications must be included in the contract documents issued for bidding.

7.2.3 Bonding/Insurance

      Construction contracts must include the following minimum bonding and insurance requirements as a part of the specifications:

1. bid, performance, and payment bonds as required by applicable law; and

2. worker's compensation, comprehensive general liability, owners's protective liability, contractual liability,comprehensive automobile liability, fire/vandalism extended coverage, and pollution liability insurance. In addition, flood insurance and "all risk" insurance may be required(case by case). The minimum amount of liability insurance required is $1,000,000 each occurrence and $2,000,000 aggregate.

7.2.4 Technical Provision of Specifications

      Among other things, the following items must be addressed in the plans and specifications for the project.

      Construction Schedules: Project schedules are required for all projects. The scheduling technique should fit the project and must be used to insure that construction proceeds in an orderly manner without costly delays. The schedule is a tool for effective construction management if it is maintained and updated on a regular basis. Many construction claims rise due to scheduling failures. Failure to adhere to the schedule could cause the municipality to jeopardize payment under the terms of the State Assistance Contract.

      Safety Precautions: Occupational Safety and Health Act (OSHA) and applicable state and local requirements must be followed. A health and safety plan describing the minimum acceptable goals for protection must be included in the bid specifications. The successful bidder is required to provide a detailed plan that is certified by a Certified Industrial Hygienist or equivalent.

      Mitigative Measures: Mitigative measures required by the environmental assessment must be implemented. Examples include: soil erosion control, hours of operation,backfilling and seeding, structural design for buildings in a floodplain, etc.

      Reliability and Flexibility: The proposed facilities are to be reliable and provide for flexibility in operation. This may involve standby power, ample pumping capacity to assure continuous operation, etc.

      Component Identification: Equipment, piping, switches, instruments, etc., must be clearly marked for ease of identification.

      Water Supply: Public and private water supplies must be protected.

      Chemical Storage: Chemicals must be properly stored in a curbed area large enough to hold the entire volume if an accidental spill occurs. Also, adequate safety protection gear must be provided for on-site personnel.

      Ventilation: Adequate ventilation must be provided in all areas where necessary.

      Laboratory Facilities: Laboratory facilities must be available to provide sufficient information to control the operational efficiency of treatment facilities. Additionally, facilities must be adequate to conduct sampling and testing as required.

      Emergency Alarms: Adequate alarms must be provided to warn personnel and nearby citizens of failures or dangers.

      Operation and Maintenance: In selecting equipment and components, the consultant should give careful consideration to those which can be operated and maintained with the least effort and greatest reliability.

7.3 Operation, Monitoring and Maintenance Plan

      An Operation, Monitoring and Maintenance (OM&M) Plan may be required. The draft OM&M Plan should list the actions needed to ready the property and personnel for monitoring and maintenance when construction is complete. It should include staffing and training requirements, monitoring and maintenance procedures, reports, laboratory testing, etc. In short, the OM&M Plan must detail the "who, when, and where" of facility monitoring, operation and maintenance. It is finalized during construction as additional details are determined.

      The final OM&M Manual (prepared with the final OM&M Plan) is especially important since it provides personnel with detailed instructions for assuring efficient operation and proper maintenance of all facility components. This manual should discuss how to maintain the property to meet State requirements. A draft OM&M Plan and Manual are suggested as part of the project design. Discoveries and modifications made during construction may change the OM&M Plan and Manual. The final Operation, Monitoring and Maintenance Plan and Manual is required just prior to the completion of construction. a name="8-0">

8.1 Advertising for Bids

      The municipality must comply with all applicable laws governing municipal contracting. DEC will authorize advertisement for bids only after the municipality has obtained all necessary easements and permits (the municipality is not be exempt from all permits, only those for the remediation project itself). Municipalities must not advertise for bids or start force account work until DEC issues written authorization. Upon authorization, municipalities must publish notice of the proposed project in the local and regional newspaper or newspapers, and in publications with statewide circulation to get the best possible response. The advertisement must indicate where to obtain copies of the bidding documents, including the plans and specifications. A pre-bid meeting must be held by the municipality and its engineer to allow the bidders to inspect the property and ask questions about the property and the bidding procedures. At least 30 days must be allowed for receipt of bids. All addenda issued after DEC approval of the plans and specifications must be submitted promptly to DEC for approval.

8.2 Receipt and Review of Bids

      Bids must be received sealed and opened publicly. In reviewing them, the municipality must insure that all legal requirements are met before preparing a recommendation for award. Bid documents shall be forwarded to DEC in time for approval. DO NOT award Construction Contracts until DEC issues approval to do so. To obtain DEC approval, the following documents must be submitted to DEC promptly after bids are opened:

1. a bid tabulation of all bids received including the engineer's pre-bid estimate, certified by a registered New York State Professional Engineer.

2. a copy of the apparent low bid

3. evidence of intent of surety to issue necessary performance and labor and material bonds and evidence of intent to obtain the required insurance for the apparent low bidder.

4. a statement from the authorized municipal official indicating the names of the bidders to whom contracts are to be awarded, the amount of the contracts and discussion of bid and recommendation for award.

5. proof of advertising indicating the circulation of the publication and time allowed for preparation and receipt of bids;

6. a copy of each addendum issued during the bidding period and acknowledgment of receipt by all the bidders;

7. signed copies of the certification by the apparent low bidder regarding compliance with non-collusive bidding requirements;

8. an explanation and evaluation of any substantial variance from the pre-bid estimate; and

9. other documents required to conform with applicable state and local laws and ordinances.

      In reviewing the bids, municipalities must comply with law applicable to municipal contracting and recommend award of Construction Contracts to the lowest responsive, responsible bidder. If award to other than the lowest bidder is recommended, the municipality must provide DEC with a full explanation, including a legal opinion, for review. DO NOT award Construction Contracts until DEC issues written authorization to do so.

      Rejection of all bids and re-advertisement of the project may be done only for good cause.

8.3 Protests

      The bidding and award process may result in protests from unsuccessful bidders, equipment suppliers or others. It is the municipality's responsibility to resolve protests. Municipalities must immediately advise DEC of each protest and how it is resolved.

8.4 Award of Construction Contracts

      After DEC reviews and approves the bid information, it will authorize the award of the Construction Contracts. Municipalities must inform DEC of the date of the Construction Contract award and the notice to proceed.

8.5 Pre-Construction Conference

      At the time of the award, the municipality must hold a pre-construction conference with the engineer in charge of on-site engineering and inspection, the construction contractor and DEC. The primary objective of this conference is to discuss the responsibilities of each party in the project and to clarify any questions. Discussion may include: posting and payment of prevailing wages, record keeping, remaining citizen concerns, requirements and facilities for on-site inspections by DEC, processing of invoices and payment requests, required approvals of change orders, etc. At this pre-construction conference, "critical construction activities" must be defined and agreed upon by the on-site engineering and inspection engineer and the DEC representative. The critical construction activities must be documented to the DEC by the municipality 10 days prior to the start of construction field work.

8.6 Change Orders

      A change order is required to modify the Construction Contract after work has begun. It may result in a cost and/or time increase or decrease.

      Change orders are used to correct errors in the plans and specifications, provide for unforeseen property conditions, or for construction emergencies. A construction emergency is damage to or a malfunction in buildings or property of the municipality caused by an unanticipated and sudden occurrence which involves a pressing necessity for immediate repair, reconstruction or maintenance in order to protect the property of the municipality, or the life, health or safety of any person. The municipality's on-site representative must approve all changes before their incorporation in the work. All change orders must be submitted to DEC within 30 days of such occurrence.

      The resolution of cost changes should be diligently pursued. Unresolved changes are a primary source of expensive claims. Expenses associated with resolution of claims are not eligible for State Assistance.

      Prior DEC approval of minor emergency change orders is not required. Project changes which will substantially alter the design or scope of the project, or the location, size, capacity or quantity of any major component, or which will require funds in addition to those provided by contingency State funds, are not minor. These must receive formal approval from DEC before being executed. Approved change orders resulting in construction cost increases are ordinarily paid out of the contingency allowance of the project.

      Change orders must be justified and not used to circumvent bidding requirements. The increased cost resulting from a change order must be reasonable and not caused by the owner, consultant, or the contractor. When appropriate, the municipality must negotiate with the construction contractor to insure that the price is reasonable. For construction emergency change orders, the municipality shall prepare and maintain a written record of each transaction entered into setting forth; a) the nature of such emergency, b) the effect thereof on public property or on life, health or safety of any person, c) a detailed description of the work to be performed and the cost of such work, d) engineering evaluation showing the need for immediate action, and e) the notice of construction emergency from the municipality to the DEC requesting such work. To receive financial assistance, the municipality must present documentation substantiating that the change order is appropriate and its cost is reasonable.

8.7 On-Site Inspection

      The municipality must provide adequate on-site engineering and full-time inspection under the direction of a professional engineer licensed to practice in New York State. The municipality must submit a certification by an engineer licensed to practice by the State of New York that the remedy was completed in accordance with the approved Remedial Design and the contract documents.

      In addition to the on-site engineering and inspection by the municipality's engineer, DEC may have on-site representation at any time to determine that the project is being managed properly, is on schedule, and is being constructed in accordance with the terms of the State Assistance Contract, the Record of Decision, and the Remedial Design. The municipality is responsible for providing a project schedule to the DEC. Failure to provide such a schedule may be cause for construction costs to be disallowed for financial assistance.

      DEC will make formal on-site project inspections during construction (interim) and at the completion of construction (final). The frequency and duration of interim inspections will depend upon the size and complexity of the project.

8.7.1 Interim Inspections

      At each interim inspection, the state inspector will check for the following and other items as appropriate:

1. that the municipality's engineer is providing competent and adequate on-site engineering and inspection, and maintaining an appropriate inspector's log;

2. that approved plans, specifications and change orders are available at the project property;

3. that construction conforms to approved plans, specifications and change orders, and is on schedule;

4. agreement between the engineer's estimate of work-in-place and actual observed construction;

5. that reasonable tests of materials and equipment are being conducted and noted in logs or reports;

6. proper protection and storage of equipment delivered to the property;

7. prominent display of a wage rate decision that agrees with contract documents;

8. that project accounting records are up-to-date, in conformance with record keeping requirements, and are supported by appropriate documentation;

9. that safety provisions to protect the community are being followed in accordance with the Health and Safety Plan;

10. any special construction techniques or practices are being followed properly;

11. provision is made for waste disposal during construction;

12. that a procedure is in effect to notify the authorized representative of any deficiencies in design or construction; and

13. signs indicating that portions of the project were assisted by the State under the Clean Water / Clean Air Bond Act of 1996.

8.7.2 Final Inspections

      In addition to the items noted above, the following must be certified by the municipality's engineer and DEC reserves the right to inspect that:

1. the project is complete, operating and, in projects with a treatment plant, are meeting the required effluent limitations;

2. the construction conforms to approved plans,specifications and change orders;

3. all equipment is operational and performing satisfactorily;

4. the operation and maintenance staff has been hired, trained in the start-up and operational procedures, and are capable of properly operating the facility;

5. the OM&M Manual is accessible at the property andits procedures are being followed; and

6. the accounting records are up-to-date and available for audit in conformance with record keeping requirements and supported by appropriate documentation.

     Deficiencies noted during the inspections must be corrected. Delay in correcting deficiencies may delay state payments.

8.8 Claims

9.1 Liability Limitation

      While a municipality shall have the benefits identified in ECL 56-0509 regarding the liability limitation beginning the date of the department's approval of the State assistance application, the property cannot be used for any new purpose until the remediation of the property is completed to the department's satisfaction. The municipality must refer to ECL 56-0509 to determine the extent of the liability limitation.

     If the municipality, or a municipal successor in title to the property, wishes to subdivide the property into separate parcels before the property's remediation is complete, it may do so after submitting a complete application for State assistance to remediate the property. However, a contaminated parcel of the subdivided property cannot be used until the department-determined remedial objectives for that parcel are 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 the remediation State assistance contract.

10.1 Eligible and Ineligible Costs

      A municipality may seek reimbursement for up to seventy-five percent (75%) of the approved project cost less amounts collected from responsible parties, the federal government, proceeds from the disposition of the property subject to the project, and any other payments received with respect to the property or project by any other source. Specific questions concerning eligibility items may be answered in the "Common Question and Answer Booklet" for this program, which is available upon request.

10.1.1 Demonstration of Eligible Costs

      To be reimbursed for a cost the municipality must demonstrate to the State's satisfaction that:

1. It is a reasonable cost incurred under contract or force account (see Section 10.3) preapproved by the DEC, for investigation, remediation, engineering, or legal services. The municipality may contract with a third party (accounting firm or other similar service company) to act as project administrator and manage the record keeping, cost accounting, and cost control reports. The reasonable costs as determined by the DEC, associated with such third party contracts will be an eligible cost. Legal services are eligible only to the extent that they are necessary for project implementation however, reimbursement will be limited to a maximum of 5% of the brownfield grant amount. Detailed documentation must support costs claimed for legal services.

2. It is necessary and not an expense of municipal administration. Costs incurred when applying for State assistance, including costs associated with the preparation of the application and selection of consultants/contractors, are not eligible for State assistance purposes.

3. The costs are authorized and consistent with applicable State and local laws and regulations.

4. The costs may not be included in the costs which may be allocated to any other federally or State financed program.

5. The costs are for work required under terms of the State Assistance Contract executed by the municipality. Only costs incurred after State approval of an investigation application for State assistance are eligible for financial assistance (except as provided in section 2.2, paragraph 3).

6. It is a cost incurred because of reasonable additional time provided by the municipality's consultant to provide technical assistance to members of the affected community. Any costs to provide technical assistance must be incurred under contract with the municipality and be approved in advance by the Department to be considered eligible.

10.1.2 Reduced Maximum Reimbursement Rate

      The following costs are eligible for a maximum reimbursement rate of 50 percent under the Brownfields Program:

1. Costs for demolition of structures (however, if contamination of the demolition debris requires that it be disposed of in a RCRA "C" landfill, the reimbursement rate would be up to 75 percent). NOTE: if the scope of the Brownfield project is almost exclusively demolition of structures, none of the cost is eligible.

2. Costs for asbestos abatement projects that consist of any measure designed to reduce exposure to, remove, or eliminate asbestos or asbestos-containing material inside a structure (however, if that material must be disposed in a RCRA "C" landfill or is outside a structure, the reimbursement rate would be up to 75 percent). NOTE: if the scope of the Brownfield project is almost exclusively indoor asbestos abatement, none of the cost is eligible.

10.1.3 Ineligible Costs

      Costs associated with the following are not eligible:

1. Costs 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 are not eligible (NOTE: costs associated with remediation of lead in or on environmental media [soil, water, air] are eligible).

2. If the scope of the Brownfield project is almost exclusively indoor asbestos abatement and/or demolition of structures, none of the cost is eligible.

3. Costs for the redevelopment of the property which are not necessary to remediate the property are not eligible.

4. Costs incurred prior to State approval of the investigation application are not eligible except as provided in section 2.2 paragraph 3.

      Any financial contributions received by the municipality from responsible parties, the federal government, the disposition of the property or any other payments received with respect to the property or project shall be used to reduce the eligible cost as described in the State Assistance Contract.

10.2 Subcontracted Work

      Portions of investigative work may be subcontracted based on unit price bids/quotes or, for professional services, to subconsultants.

      All subcontracts valued at over five thousand dollars ($5,000) must be submitted to the DEC. For services which are not biddable, or for which the low bid is not selected, a justification must be provided to the DEC prior to the start of the subcontracted work. A copy of all subcontracts must be submitted to DEC when they are executed. A statement from the prime consultant must be submitted which states that the procedures below were followed or which provides justification for any exceptions. No reimbursements for subcontracted work will be made without submission of this information.

      The prime consultant or contractor must solicit bids/quotes for subcontracted work. DEC will require the following:

1. Unit price subcontracts over $10,000 require five responsive bids/quotes for justification with at least three (3) in writing for each subcontract.

2. Subcontracts estimated to be between $5,000 and $10,000 require three (3) written responsive quotes for each subcontract.

3. For subcontracts less than $5,000, written quotes are not required but the cost must be evaluated for reasonableness, i.e., comparison to a previous engineering estimate, lowest of three (3) phone quotes, or comparison to similar recent subcontracted work.

4. Subconsultant contracts under $25,000 may be unit price or fixed price (lump sum) provided the scope of work can be well defined and three (3) written, responsive quotes are obtained. Subconsultant contracts which are over $25,000 must or under $25,000 may be cost plus fixed fee type contracts.

5. Subcontracts should include the following:
   1. By reference or by attachment and incorporation, all applicable requirements of the prime contract should be made a part of the subcontract. The subcontract should state that all applicable federal and State laws apply.

   2. If the subcontract is for unit price work (well driller, laboratory analysis), a unit price list should be included as an attachment to the subcontract.

6. Each subcontract must include:
   1. signatories to the agreement (both the prime and sub must sign);

   2. a specified dollar amount;

   3. a detailed scope of work with the property and project identified; and

   4. a time frame for performance.

7. The subcontract cannot be a cost-plus-percentage-of-cost or a percentage-of-construction-cost type of agreement.

10.3 Force Account Work

      Municipal employees sometimes perform activities related to planning, design or construction of a project. As stated previously, general municipal administrative costs are not eligible and, therefore, must not be included in a force account proposal. In cases where the municipality desires to use municipal forces, it must obtain prior written approval from DEC. Municipalities must submit a force account proposal in writing to DEC which demonstrates that:

1. municipal employees have the necessary skills and experience, including all OSHA required health and safety training, to safely and effectively accomplish the work; and

2. using municipal employees is at least as economical as using contractors; or

3. emergency conditions require the use of municipal employees.

      DEC will review and approve or disapprove the force account proposal in writing. If approved, the municipality will be notified in writing of the eligible force account costs and record keeping requirements. Comprehensive personal service accounting records are required to verify force account costs. Failure to keep complete records may result in those costs being disallowed for payment.

      Force account work performed without prior DEC approval will not be eligible for State financial assistance.

10.4 Payments

      Requests for payment must be submitted in accordance with the payment schedule (Schedule B) contained in the State Assistance Contract. The normal frequency of payment requests will be on a quarterly basis (every three months). If the municipality can, in the DEC's opinion, demonstrate specific financial need, more frequent payments may be scheduled.

      Payment requests should be submitted based on eligible project costs incurred. All claims for state payment must be on a State of New York Standard Voucher signed by the municipality's authorized representative. They must be accompanied by documentation substantiating the eligibility of costs claimed.

      DEC will furnish payment procedures and forms to the municipality with its copy of the executed State Assistance Contract. Instructions for project close-out will be furnished when the project approaches completion.

      Five percent of each payment will be withheld until final review is made. Any overpayment revealed by audit or otherwise, must be refunded to the State. These retainages will be released upon completion of each the Investigation and the Remediation.

10.5 Audits

      The municipality shall maintain all books, documents, papers, and other evidence directly pertinent to the performance of work under the State Assistance Contract in accordance with generally acceptable accounting principles and practices consistently applied. The Department, the State Comptroller, the State Attorney General and the State Department of Labor or any of their authorized representatives shall have access to all such books, records, documents and other evidence for the purpose of inspection, audit and copying for a period of six years after final payment for the project.

Executive Summary

1. Introduction

1.1 Purpose of Report

1.2 Site Background

1.2.1 Site Description

1.2.2 Site History

1.2.3 Previous Investigations

1.3 Report Organization

2.1 Includes field activities associated with site characterization. These may include physical and chemical monitoring of some, but not necessarily all, of the following:

2.1.1 Surface Features (topographic mapping, etc.), natural and manmade features

2.1.2 Contaminant Source Investigations

2.1.3 Meteorological Investigations

2.1.4 Surface-Water and Sediment Investigations

2.1.5 Geological Investigations

2.1.6 Soil and Vadose Zone Investigations

2.1.7 Groundwater Investigations

2.1.8 Human Population Surveys

2.1.9 Ecological Investigations

2.2 If technical correspondence documenting field activities were prepared, they may be included in an appendix and summarized in this report chapter.

3.1 Includes results of field activities to determine physical characteristics. These may include some, but not necessarily all, of the following:

3.1.1 Surface Features

3.1.2 Meteorology

3.1.3 Surface Water Hydrology

3.1.4 Geology

3.1.5 Soils

3.1.6 Hydrogeology

3.1.7 Demography and Land Use

3.1.8 Ecology

4. Nature and Extent of Contamination

4.1 Presents the results of site characterization, both natural chemical components and contaminants in some, but not necessarily all, of the following media:

4.1.1 Sources (lagoons, sludges, tanks, etc.)

4.1.2 Soils and Vadose Zone

4.1.3 Groundwater

4.1.4 Surface Water and Sediments

4.1.5 Air

5.1 Potential Routes of Migration (i.e., air, groundwater, etc.)

5.2 Contaminant Persistence

5.2.1 If they are applicable (i.e., for organic contaminants), describe estimated persistence in the study area environment and physical, chemical, and/or biological factors of importance for the media of interest.

5.3 Contaminant Migration

5.3.1 Discuss factors affecting contaminant migration for the media of importance (e.g., sorption onto soils, solubility in water, movement of groundwater, etc.)

5.3.2 Discuss modeling methods and results, if applicable.

6.1 Public Health Evaluation

6.1.1 Exposure Assessment

6.1.2 Toxicity Assessment

6.1.3 Risk Characterization

6.2 Environmental Assessment

7. Summary and Conclusions

7.1      Summary

7.1.1 Nature and Extent of Contamination

7.1.2 Fate and Transport

7.1.3 Risk Assessment (if appropriate)

7.2       Conclusions

7.2.1 Data Limitations and Recommendations for Future Work

7.2.2 Recommended Remedial Action Objectives

Appendices

A. Technical Correspondence on Field Activities (if applicable)

B. Analytical Data and QA/QC Evaluation Results

C. Risk Assessment Methods (if appropriate)

Executive Summary

1. Introduction

1.1 Purpose and Organization of Report

1.1 Background Information (Summarized from SI Report)

1.2.1 Site Description

1.2.2 Site History

1.2.3 Nature and Extent of Contamination

1.2.4 Contaminant Fate and Transport

1.2.5 Baseline Risk Assessment (if appropriate)

2.1 Introduction

2.2 Remedial Action Objectives - Presents the development of remedial action objectives for each medium of interest (i.e., groundwater, soil, surface water, air, etc.) For each medium, the following should be discussed:

- Contaminants of interest

- Development of remediation goals

2.3 General Response Actions - For each medium of interest, describes the estimation of areas or volumes to which treatment, containment, or exposure reduction technologies may be applied.

2.4 Development of Alternatives - Describes rationale for combination of general response actions into alternatives. Note: This discussion may be by medium or for the property as a whole.

3.1 Introduction

3.2 Individual Analysis of Alternatives

3.2.1 Alternative 1

3.2.1.1 Description

3.2.1.2 Assessment

3.2.2 Alternative 2

3.2.2.1 Description

3.2.2.2 Assessment

3.2.3 Alternative 3

3.3 Comparative Analysis

      The following are mandatory contract provisions to be included in all Municipal/Consultant-Construction-Service contracts for work performed as part of an eligible Environmental Restoration Project (Brownfield). Any changes to these provisions by the municipality should be approved by the New York State Department of Environmental Conservation (NYSDEC) prior to execution of the contract. Failure to comply with these requirements may jeopardize the eligibility of your Brownfield project.

Mandatory Provisions

NON-DISCRIMINATION REQUIREMENTS

   1.    In accordance with Article 15 of the Executive Law (also known as the Human Rights Law) and all other State and Federal statutory and constitutional non-discrimination provisions, the Contractor will not discriminate against any employee or applicant for employment because of race, creed, color, sex, national origin, age, disability or marital status.

To the extent that such work is to be provided pursuant to the contract, the following paragraph is required:

Furthermore, in accordance with Section 220-e of the Labor Law, if this is a contract for the construction, alteration or repair of any public building or public work or for the manufacture, sale or distribution of materials, equipment or supplies, and to the extent that this contract shall be performed within the State of New York, the Contractor agrees that neither it nor its subcontractors shall, by reason of race, creed, color, disability, sex or national origin: a) discriminate in hiring or promotion of any individual who is qualified and available to perform the work; or b) discriminate against or intimidate any employee hired for the performance of work under this contract.

WAGE AND HOUR PROVISIONS

   2.   If this is a public work contract covered by Article 8 of the Labor Law or a building service contract covered by Article 9 thereof, neither the Contractor's employees nor the employees of its subcontractors may be required or permitted to work more than the number of hours or days stated in said statutes, except as otherwise provided in the Labor Law as set forth in prevailing wage and supplement schedules issued by the State Labor Department. Furthermore, the Contractor and its subcontractors must pay at least the prevailing wage rate and pay or provide the prevailing supplements, including the premium rates for overtime pay, as determined by the State Labor Department in accordance with the Labor Law.

RECORD-KEEPING REQUIREMENT

  3.    The Contractor shall maintain all books, documents, papers, and other evidence directly pertinent to the performance of work under this Contract in accordance with generally acceptable accounting principles and practices consistently applied, and 40 CFR Part 30 in effect during the term of this Contract. The Municipality, the Department of Environmental Conservation, the State Comptroller, the State Attorney General, the State Department of Labor, and, in the event of federal funding, the USEPA, the Comptroller General of the United States, the United States Department of Labor or any of their authorized representatives shall have access to all such books, records, documents and other evidence for the purpose of inspection, audit and copying for a period of six years following final payment or the termination of this Contract whichever is later, and any extensions thereto. These books, records, documents and other evidence shall be accessible within the State of New York to the agencies identified above for the time period stated above. "Termination of this contract," as used in this clause, shall mean the later of completion of the work of the contract or the end date of the term stated in the contract.

CONFLICT OF INTEREST

   4.     To the best of the Contractor's knowledge and belief, the Contractor warrants that there are no relevant facts or circumstances which could give rise to an organizational conflict of interest, as herein defined, or that the Contractor has disclosed all such relevant information to the Municipality.

An organizational conflict of interest exists when the nature of the work to be performed under this Contract may, without some restriction on future activities, either result in an unfair competitive advantage to the Contractor or impair the Contractor's objectivity in performing the work for the Municipality.

The Contractor agrees that if an actual, apparent or potential organizational conflict of interest is discovered at any time after award, whether before or during performance, the Contractor will immediately make a full disclosure in writing to the Municipality and the State Department of Environmental Conservation. This disclosure shall include a description of actions which the Contractor has taken or proposes to take, after consultation with the Municipality, to avoid, mitigate, or minimize the actual or potential conflict.

Remedies - The Municipality may terminate this contract in whole or in part, if it deems such termination necessary to avoid an organizational or personal conflict of interest, or an unauthorized disclosure of information. If the Contractor was aware of a potential conflict of interest prior to award, or discovered an actual or potential conflict after award and did not disclose or misrepresent relevant information to the Municipality, the Municipality may terminate the contract, or pursue such other remedies as may be permitted by law or this contract. The terms of other applicable contract provisions regarding termination shall apply to termination by the Municipality pursuant to this clause.

The Contractor further agrees to insert in any subcontract hereunder, provisions which shall conform to the language of this clause.

1. In addition to the requirements of the above clauses with respect to "Organizational Conflicts of Interest," the following provision with regard to employee personnel performing under this contract shall apply until the earlier of the termination date of the affected employee(s) or the duration of the contract.

   The Contractor agrees to notify the Department and the Municipality immediately of any actual, apparent or potential personal conflict of interest with regard to any employee, subcontractor employee, or consultant working on or having access to information regarding this contract, as soon as the Contractor becomes aware of such conflict. A personal conflict of interest is defined as a relationship of an employee, subcontractor employee, or consultant with an entity that may impair or appear to impair the objectivity of the employee, subcontractor employee, or consultant in performing the contract work. The Municipality will notify the Contractor of the appropriate action to be taken.

2. To the extent that the work under this contract requires access to proprietary or confidential business or financial data of other companies, and as long as such data remains proprietary or confidential, the Contractor shall protect such data from unauthorized use and disclosure and agrees not to use it to compete with such companies.

3. The Contractor shall certify annually that, to the best of the Contractor's knowledge and belief, all actual, apparent or potential conflicts of interest, both personal and organizational, have been reported to the Department and the Municipality. Such certification must be signed by a senior executive of the Contractor and submitted in accordance with instructions provided by the Municipality. Along with the annual certification, the Contractor shall also submit an update of any changes in the conflict of interest plan submitted with its proposal for this contract. The initial certification shall cover the one-year period from the date of contract award, and all subsequent certifications shall cover successive annual periods thereafter. The certification is to be submitted no later than 45 days after the close of the previous certification period covered.

4. The Contractor recognizes that employees in performing this contract may have access to data, either provided by the Department or the Municipality or first generated during contract performance, of a sensitive nature which should not be released without Department/Municipality approval. Therefore, the Contractor agrees to obtain confidentiality agreements from all such employees working on requirements under this contract including subcontractors and consultants. Such agreements shall contain provisions which stipulate that each employee agrees that the employee will not disclose, either in whole or in part, to any entity external to the Department, Department of Health or the New York State Department of Law, any information or data provided by the Department or first generated by the Contractor under this contract, any site-specific cost information, or any enforcement strategy without first obtaining the written permission of the Municipality. If a Contractor, through an employee or otherwise, is subpoenaed to testify or produce documents, which could result in such disclosure, the contractor must provide immediate advance notification to the Municipality/Department so that the Department can authorize such disclosure or have the opportunity to take action to prevent such disclosure. Such agreements shall be effective for the life of the contract and for a period of five (5) years after completion of the contract.

5. The Contractor agrees to insert in each subcontract or consultant agreement placed hereunder (except for subcontracts or consultant agreements for well drilling, fence erecting, plumbing, utility hookups, security guard services, or electrical services) provisions which shall conform substantially to the language of this clause, including this paragraph (e), unless otherwise authorized by the Municipality.

   If this is a contract for work related to action at an inactive hazardous waste site, the following paragraph shall apply:

6. Due to the scope and nature of this contract, the Contractor shall observe the following restrictions on future hazardous waste site contracting for the duration of the contract.

(1) The Contractor will be ineligible to enter into a contract for remedial action projects for which the Contractor has developed the statement of work or the solicitation package.

(2) The Contractor, during the life of the work assignment and for a period of five (5) years after the completion of the work assignment, agrees not to enter into a contract with or to represent any party with respect to any work relating to remedial activities or work pertaining to a site where the Contractor previously performed work for the Department and/or Municipality under this contract without the prior written approval of the Department.

(3) The Contractor agrees in advance that if any bids/proposals are submitted for any work for a third party that would require written approval of the Municipality/Department prior to entering into a contract because of the restrictions of this clause, then the bids/proposals are submitted at the Contractor's own risk, and no claim shall be made against the Municipality/Department to recover bid/proposal costs as a direct cost whether the request for authorization to enter into the contract is denied or approved.

AFFIRMATIVE ACTION

  5.      (a)    The Contractor agrees to be bound by the provisions of New York State Executive Law Article 15-A, Sections 312, 313 and 316 and the regulations promulgated thereunder.

As provided thereunder, the Contractor is required to make good faith efforts to solicit the meaningful participation of minority and women owned business enterprises identified in the Directory of Certified Businesses provided by the New York State Department of Economic Development's Division of Minority and Women's Business Development.

        (b)    The Contractor agrees to include the requirements set forth in paragraph (a) above and paragraphs (c), (d), and (e) and (f) below in every subcontract in such a manner that the provisions will be binding upon each subcontractor as to work in connection with such contract. For the purpose of this paragraph, a "subcontract" shall mean an agreement providing for a total expenditure in excess of $25,000 for the construction, demolition, replacement, major repair, renovation, planning or design of real property and improvements thereon in which a portion of Contractor's obligation under a State contract is undertaken or assumed.

        (c)   The Contractor will not discriminate against employees or applicants for employment because of race, creed, color, national origin, sex, age, disability or marital status, and will undertake or continue existing programs of affirmative action to ensure that minority group members and women are afforded equal employment opportunities without discrimination. For purposes of this article, affirmative action shall mean recruitment, employment, job assignment, promotion, upgradings, demotion, transfer, layoff, or termination and rates of pay or other forms of compensation.

        (d)   At the request of the contracting agency, the contractor shall request each employment agency, labor union, or authorized representative of workers with which it has a collective bargaining or other agreement or understanding, to furnish a written statement that such employment agency, labor union or representative will not discriminate on the basis of race, creed, color, national origin, sex, age, disability or marital status and that such union or representative will affirmatively cooperate in the implementation of the contractor's obligations herein.

        (e)   The Contractor shall state, in all solicitations or advertisements for employees, that, in the performance of the contract, all qualified applicants will be afforded equal employment opportunities without discrimination because of race, creed, color, national origin, sex, age, disability or marital status.

        (f)   The Contractor also agrees to incorporate into any contract with subcontractors, contractual provisions applicable to record keeping, reporting, notice requirements and actions determined to be necessary by the Department to implement the requirements of the Minority/Women Business Enterprise - Equal Employment (M/WBE-EEO) utilization plan, and of Executive Law Article 15-A, regulations promulgated thereunder, and other applicable law and regulations.