Public Comment Period for DER-41–Financial Assurance Is Open!

The New York State Department of Environmental Conservation, Division of Environmental Remediation (DER) is issuing a proposed policy, DER-41–Financial Assurance (FA). This proposed guidance will assist with the State Superfund (SSF) Program and the Brownfield Cleanup Program (BCP) by creating financial assurances between the State and remedial parties.

DER-41–Financial Assurance helps remedial parties and project managers ensure that there is funding available through the entire lifecycle of a remediation project. This includes both the initial remediation efforts and any continued operations, maintenance, or monitoring (OM&M) a site might require. In some cases, funding may extend to institutional or engineering controls as well.

Unfortunately, in the past, companies have experienced bankruptcy or other financial problems while working on a project. That often results in the project being abandoned. When a Brownfield or Superfund remediation site becomes abandoned, it falls to the State. This creates a financial burden on the State and the public. This is why the guidance in DER-41 is being proposed.

At a minimum, FA will be required as part of the remedial scope if:

• The present worth of the OM&M costs is greater than $3 million
• It is anticipated that the selected remedy for the site will require OM&M for longer than 10 years

The public comment period for DER-41 ends September 12, 2023. Written comments can be submitted by email to derweb@dec.ny.gov with the subject line “Comments on Proposed DER-41” or mailed to the NYSDEC–Division of Environmental Remediation, 625 Broadway, Albany, NY 12233-7012, attention: Jenn Dawson.

Walden will track any updates to this publication. To read more about Walden’s Brownfield and site remediation work, visit our website. Contact our experienced environmental remediation team at 516-744-5863 if you need help managing your Brownfield or Superfund site.