§ 27-1409. Brownfield site cleanup agreement.

The agreement shall include, but not be limited to, the following
provisions:

1. One describing the boundaries of the real property that is subject
to the brownfield site cleanup agreement;

2. One requiring: (a) the participant to pay for state costs,
including the recovery of state costs incurred before the effective date
of such agreement; provided, however, that such costs may be based on a
reasonable flat-fee for oversight, which shall reflect the projected
future state costs incurred in negotiating and overseeing implementation
of such agreement; and

(b) with respect to a brownfield site which the department has
determined constitutes a significant threat to the public health or
environment the department may include a provision requiring the
applicant to provide a technical assistance grant, as described in
subdivision four of section 27-1417 of this title and under the
conditions described therein, to an eligible party in accordance with
procedures established under such program, with the cost of such a grant
incurred by a volunteer serving as an offset against such state costs;

3. One setting forth a process for resolving disputes arising from the
evaluation, analysis, and oversight of the implementation of the work
plan as described;

4. One requiring an indemnification provision which holds the state
harmless from any claim, suit, action, and cost of every name and
description arising out of or resulting from the fulfillment or
attempted fulfillment of the agreement, except for those claims, suits,
actions, and costs arising from the state's gross negligence or willful
or intentional misconduct;

5. One authorizing the department to terminate a brownfield site
cleanup agreement at any time during the implementation of such
agreement if the applicant implementing such agreement fails to
substantially comply with such agreement's terms and conditions;

6. One stating that the department may exempt the applicant from the
requirement to obtain any state or local permit or other authorization
pursuant to section 27-1429 of this title;

7. One stating that the department shall not consider the applicant an
operator of such brownfield site based solely upon execution or
implementation of such brownfield site cleanup agreement for purposes of
remediation liability;

8. One requiring that the applicant conduct investigation and/or
remediation activities pursuant to one or more work plans which are
approved by the department;

9. One requiring the preparation and implementation of a citizen
participation plan consistent with the requirements of this title as
soon as possible following execution of the agreement but no later than
prior to the preparation of a draft remedial investigation plan by the
applicant which shall include a description of citizen participation
activities already performed by the applicant and/or the department;

10. One requiring a waiver by the applicant, effective upon the
execution of the brownfield site cleanup agreement, any right such
applicant has or may have to make a claim against the state of New York
pursuant to article twelve of the navigation law with respect to the
brownfield site, and a release of the New York environmental protection
and spill compensation fund from any and all legal or equitable claims
or causes of action that such applicant may have as a result of entering
into a brownfield site cleanup agreement or fulfilling a brownfield site
remedial program at such site; and

11. The inclusion of other conditions considered necessary by the
department concerning the effective and efficient implementation of this
title;

12. Nothing in this section shall prohibit or limit the department
from terminating a brownfield site cleanup agreement at any time during
its implementation if the applicant fails to comply substantially with
such agreement's terms and conditions.

13. After acceptance by the department, an executed brownfield cleanup
agreement shall be submitted and returned to the department with payment
of a nonrefundable program fee in the amount of fifty thousand dollars,
which shall be deposited to the credit of the oversight and assistance
account of the hazardous waste remedial fund pursuant to section
ninety-seven-b of the state finance law. The department shall waive such
fee upon a demonstration of financial hardship by the applicant. To
demonstrate financial hardship the applicant must show but for the
program fee, remediation of the brownfield site would not be
economically viable. When evaluating financial hardship, the department
will consider whether the applicant has waived their rights to tax
credits, whether the location of the proposed brownfield site is in a
disadvantaged community or the proposed brownfield site is being
developed as an affordable housing project, the assets and income of the
applicant, and any other factors deemed relevant. The department shall
establish regulations governing the demonstration of financial hardship.
Program fees shall not qualify for any of the tax credits available for
brownfield sites under sections twenty-one, twenty-two, and twenty-three
of the tax law.