N.Y. Comp. Codes R. & Regs. tit. 6 § 375-2.9

Current through Register Vol. 46, No. 19, May 8, 2024

Section 375-2.9 - Certificate of completion

(a) Upon receipt of the certificate of completion and subject to subdivision (b) of this section, the parties named on such certificate shall not be liable to the department upon any statutory or common law cause of action, except for one for natural resource damages, arising out of the presence of any contaminants in, on or emanating from the site that was the subject of such certificate.

(b) The certificate of completion does not extend to, nor limit, the State's rights concerning any further investigation and/or remediation the department deems necessary due to:

(1) environmental contamination at, on, under, or emanating from the site if, in light of such conditions, the site is no longer protective of public health or the environment, and the remedial party is not in good faith negotiating, and/or following its approval by the department, implementing a work plan to achieve conditions at the site which are protective of public health and the environment;

(2) non-compliance with the terms of the order or state assistance contract, the remedial work plan, site management plan or the certificate of completion after notice of the failure and reasonable opportunity to cure has been afforded to the remedial party by the department as provided for at section 375-1.9(e)(2) of this Part;

(3) fraud related to the remedial program for the site committed by the certificate holder;

(4) a finding by the department that a change in an environmental standard, factor, or criteria upon which the remedial work plan was based renders the remedial program implemented at the site no longer protective of public health or the environment, and the remedial party is not in good faith negotiating, and/or following its approval by the department, implementing a work plan to achieve conditions at the site which are protective of public health and the environment; or

(5) a change in the site's use subsequent to the department's issuance of the certificate of completion, unless additional remediation is undertaken which shall meet the standard for protection of the public health and environment that applies to this Subpart.

(c) The liability protections set forth in this section shall extend to successors or assigns through acquisition of title to the site to which the certificate applies and to a person who develops or otherwise occupies the site; provided that such persons act with due care and in good faith to adhere to the requirements of the site work plans, site management plan and certificate of completion. However, such liability protections do not extend to, and cannot be transferred, to a responsible party as of the effective date of the certification of completion, unless that person was party to the order for the site on which such certificate was issued.

(d) Liability limitation reopener provisions.

(1) The certificate of completion may be modified or revoked upon a finding by the department that either:

(i) one or more of the circumstances set forth at section 375-1.9(e)(1) of this Part have been met; or

(ii) one or more of the circumstances set forth at subdivision (b) of this section have been met.

(2) Upon such a finding, notice shall be provided to the certificate holder as set forth in section 375-1.9 of this Part.

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

(e) Nothing in this section shall be construed to affect either the liability of any person with respect to any costs, damages, or investigative or remedial activities that are not included in the order or remedial investigation work plan and/or remedial work plan for the site or the department's authority to maintain an action or proceeding against any person who is not subject to the order.

(f) Nothing in this section shall be construed to affect the authority of the department to reach settlement with other persons consistent with its authority under applicable law.

(g) Upon issuance of the certificate of completion, the department will initiate Registry reclassification or delisting proceedings.

N.Y. Comp. Codes R. & Regs. Tit. 6 § 375-2.9