NY Env Conserv L § 27-1415 (2021)
2021 New York Laws ENV - Environmental Conservation Article 27 - Collection, Treatment and Disposal of Refuse and Other Solid Waste Title 14 - Brownfield Cleanup Program 27-1415 - Remedial Program Requirements.

§ 27-1415. Remedial program requirements.   1.  Remedial  programs.  All  remedial programs shall be protective of public  health  and  the  environment  including  but  not  limited   to groundwater  according to its classification pursuant to section 17-0301 of this chapter; drinking water, surface water and air (including indoor air);  sensitive  populations,  including   children;   and   ecological resources, including fish and wildlife. In all cases, the target risk of residual  contamination at a site shall not exceed an excess cancer risk of one in one million for carcinogenic end points and a hazard index  of one for non-cancer end points.   2. Investigation. (a) Remedial investigation. A remedial investigation shall  fully  characterize  the  nature  and  extent of contamination at and/or emanating  from  a  brownfield  site.  Such  investigation  shall emphasize data collection and sampling and monitoring, as necessary, and includes  but  is  not limited to: characterization of site geologic and hydrogeologic  conditions,  including  groundwater   flow,   contaminant movement,  and the response of the groundwater system to extraction; and assessment  of  the  existing  and  potential  impact   of   groundwater contamination  on private or community water supply wells, surface water quality, air quality, and indoor air quality.  (b) Qualitative exposure assessment. A qualitative exposure assessment shall qualitatively  determine  the  route,  intensity,  frequency,  and duration  of  actual or potential exposures of humans, fish and wildlife to contaminants. Such assessment must analyze the nature and size of the population currently exposed or which may reasonably be expected  to  be exposed  to  the  contaminants  that  are present at or emanating from a site, and shall include a determination of  the  reasonably  anticipated future  land  use  of  the  site  and  affected  off-site  areas and the reasonably anticipated future groundwater use.  A  qualitative  exposure assessment  consists of characterizing the exposure setting, identifying current and reasonably foreseeable  exposure  pathways,  and  evaluating contaminant  fate  and  transport.  Some off-site field investigation to identify and sample any potential areas of contamination may be required to support the exposure assessment.   3. Selection. The remedial program for a site shall be  selected  upon due consideration of the following factors:  (a)   Conformance   to  standards  and  criteria  that  are  generally applicable, consistently applied, and officially promulgated,  that  are either  directly applicable, or that are not directly applicable but are relevant and appropriate, unless good cause exists why conformity should be dispensed with,  and  with  consideration  being  given  to  guidance determined,   after   the   exercise  of  engineering  judgment,  to  be applicable. Such good cause exists if any of the following is present:  (i) the proposed action is only part of a complete program  that  will conform to such standard or criterion upon completion; or  (ii)  conformity  to such standard or criterion will result in greater risk to the public health or to the environment than alternatives; or  (iii)  conformity  to  such  standard  or  criterion  is   technically impracticable from an engineering perspective; or  (iv) the program will attain a level of performance that is equivalent to that required by the standard or criterion through the use of another method or approach.  (b) Overall protectiveness of the public health and the environment.  (c) Short-term effectiveness.  (d)  Long-term  effectiveness  and permanence. A remedial program that achieves a complete and permanent cleanup of the site is to be preferred over a remedial program that does not do so.  (e) Reduction in toxicity, mobility  and/or  volume  of  contamination with  treatment.  A  remedial program that permanently and significantly reduces the toxicity, mobility and/or volume of contamination is  to  be preferred  over a remedial program that does not do so. The following is the  hierarchy  of  the  remedial  technologies  ranked  from  the  most preferable to the least preferable: destruction,  on-site  or  off-site; separation/treatment,   on-site   or  off-site;  solidification/chemical fixation,  on-site  or  off-site;  control  and  isolation,  on-site  or off-site.  (f) Implementability.  (g) Cost effectiveness.  (h) Community acceptance.  (i) Land use. The current, intended, and reasonably anticipated future land  uses  of  the site and its surroundings shall be considered in the selection of the remedy for soil remediation,  provided  the  department determines  that there is reasonable certainty associated with such use. If the use proposed for the site does not conform with applicable zoning laws or maps or the  reasonably  anticipated  future  use  of  the  site determined  by  the  department pursuant to this section, the department shall disapprove such use. The reasonably anticipated future use of  the site  and  its  surroundings  shall  be  documented by the applicant and determined  by  the  department,  taking  into   consideration   factors including, but not limited to, those listed below:  (i) Current use and historical and/or recent development patterns.  (ii) Applicable zoning laws and maps.  (iii)  Brownfield  opportunity areas as designated pursuant to section nine hundred seventy-r of the general municipal law.  (iv) Applicable comprehensive community master plans, local waterfront revitalization plans  as  provided  for  in  article  forty-two  of  the executive law, or any other applicable land use plan formally adopted by a municipality.   * (v)  Proximity  to real property currently used for residential use, and to urban, commercial,  industrial,  agricultural,  and  recreational areas.   * NB Effective until March 1, 2022   * (v)  Proximity  to real property currently used for residential use, and to urban, commercial, industrial, agricultural, school or  day  care facilities and recreational areas.   * NB Effective March 1, 2022  (vi)  Any written and oral comments submitted by members of the public on the  applicant's  proposed  use  as  part  of  citizen  participation activities performed by the applicant pursuant to this title.  (vii)  Environmental  justice  concerns,  which  for  purposes of this title, include the extent to which the proposed use  may  reasonably  be expected to cause or increase a disproportionate burden on the community in which the site is located, including low-income minority communities, or  to  result  in  a  disproportionate  concentration  of commercial or industrial uses in what has historically been a mixed use or residential community.  (viii) Federal or state land use designations.  (ix) Population growth patterns and projections.  (x) Accessibility to existing infrastructure.  (xi) Proximity of the site to important cultural resources,  including federal or state historic or heritage sites or Native American religious sites.  (xii)  Natural resources, including proximity of the site to important federal, state or local natural resources, including waterways, wildlife  refuges, wetlands, or critical  habitats  of  endangered  or  threatened species.  (xiii)  Potential  vulnerability  of groundwater to contamination that might emanate from the site, including proximity to wellhead  protection and  groundwater  recharge  areas  and  other  areas  identified  by the department and the state's  comprehensive  groundwater  remediation  and protection  program  established pursuant to title thirty-one of article fifteen of this chapter.  (xiv) Proximity to floodplains.  (xv) Geography and geology.  (xvi) Current institutional controls applicable to the site.   4. Tracks. The commissioner, in consultation with the commissioner  of health,  shall  propose  within  twelve  months  and  thereafter  timely promulgate regulations which  create  a  multi-track  approach  for  the remediation  of  contamination, and, commencing on the effective date of such regulations, utilize such multi-track  approach.  Such  regulations shall  provide  that  groundwater  use in Tracks 2, 3 or 4 can be either restricted or unrestricted. The tracks shall be as follows:   Track 1: The remedial program shall achieve a cleanup level that  will allow  the  site  to  be  used  for  any purpose without restriction and without  reliance  on  the  long-term  employment  of  institutional  or engineering  controls,  and  shall achieve contaminant-specific remedial action objectives for soil which conform with  those  contained  in  the generic  table  of  contaminant-specific  remedial action objectives for unrestricted use developed pursuant to subdivision six of this  section. Provided,  however,  that volunteers whose proposed remedial program for the remediation of groundwater may require the long-term  employment  of institutional  or  engineering  controls  after  the  bulk  reduction of groundwater contamination to asymptotic levels  has  been  achieved  but whose program would otherwise conform with the requirements necessary to qualify for Track 1, shall qualify for Track 1.   Track  2:  The remedial program may include restrictions on the use of the site or reliance on the long-term employment of  engineering  and/or institutional  controls, but shall achieve contaminant-specific remedial action objectives for soil which conform with those contained in one  of the generic tables developed pursuant to subdivision six of this section without  the  use of institutional or engineering controls to reach such objectives.   Track 3:  The  remedial  program  shall  achieve  contaminant-specific remedial action objectives for soil which conform with the criteria used to  develop the generic tables for such objectives developed pursuant to subdivision six of this section  but  may  use  site  specific  data  to determine such objectives.   Track  4: The remedial program shall achieve a cleanup level that will be protective for the site's current, intended or reasonably anticipated residential, commercial, or industrial use with  restrictions  and  with reliance  on  the  long-term  employment of institutional or engineering controls  to  achieve  such  level.  The  regulations  shall  include  a provision  requiring  that  a  cleanup  level  which  poses  a  risk  in exceedance  of  an  excess  cancer  risk  of  one  in  one  million  for carcinogenic  end  points  and  a hazard index of one for non-cancer end points for a specific contaminant at a specific site may be approved  by the department without requiring the use of institutional or engineering controls  to eliminate exposure only upon a site specific finding by the commissioner, in consultation with the commissioner of health, that such level shall be protective of public health and environment. Such finding shall be included in the draft remedial work plan for the site and fully described in the notice and fact sheet provided for such work plan.    5. Source removal and control measures. The following is the hierarchy of source removal and control measures ranked from  most  preferable  to least  preferable.  For  all  applicants,  the remedial program selected pursuant to this title shall address sources in the following manner:  (a)  Removal and/or treatment. All free product, concentrated solid or semi-solid  contaminants,  dense   non-aqueous   phase   liquid,   light non-aqueous  phase  liquid  and/or  grossly  contaminated  soil shall be removed and/or treated; provided however if the removal and/or treatment of all such contamination is not feasible, such contamination  shall  be removed or treated to the greatest extent feasible.  (b)   Containment.  Any  source  remaining  following  removal  and/or treatment pursuant to this  subdivision  shall  be  contained;  provided however  if  full  containment  is  not  feasible,  such source shall be contained to the greatest extent feasible.  (c)  Elimination  of  exposure.  Exposure  to  any  source   remaining following   removal,  treatment  and/or  containment  pursuant  to  this subdivision shall be eliminated through additional  measures,  including but not limited to, as applicable, the timely and sustained provision of alternative  water  supplies  and the elimination of volatilization into buildings; provided however if such elimination  is  not  feasible  such exposure shall be eliminated to the greatest extent feasible.  (d)  Treatment of source at the point of exposure. Treatment of source at the point of exposure, including but not limited to,  as  applicable, wellhead  treatment  or  the management of volatile contamination within buildings, shall be considered as a measure of last resort.   5-a. Plume stabilization shall be evaluated for all remedies  and  the further  migration  of contamination from the site shall be prevented to the extent feasible, including any actions that would  be  necessary  to maintain  and  monitor  such  stabilization.  In addition, a participant shall prevent the further migration of plumes to the extent feasible.   6. Soil cleanup objectives. (a) The regulations  shall  include  three generic  tables  of  contaminant-specific remedial action objectives for soil based on current, intended or reasonably  anticipated  future  use, including: (i) unrestricted, (ii) commercial and (iii) industrial.  (b)  Such  objectives  shall  be  protective  of public health and the environment pursuant to subdivision one of this section, and  the  level of  risk  associated  with  remedial  action  objectives  for individual contaminants listed in the table or developed by the applicant  pursuant to  Track 3 shall not exceed an excess cancer risk of one in one million for carcinogenic end points and a hazard index of one for non-cancer end points; provided, however, that if the background soil concentration for a contaminant in rural soils in New York state exceeds such risk  level, the  contaminant-specific  action  objective for such contaminant may be established equal to such background concentration. In  developing  such tables, the department shall consider:  (i) standards, criteria and guidance which are found by the department to  be  applicable or relevant and appropriate pursuant to paragraph (a) of subdivision three of this section;  (ii) the behaviors of children;  (iii) the protection of adjacent residential uses;  (iv) contaminants which act through similar  toxicological  mechanisms or  have  the  potential  for  additive  and/or synergistic effects, and exposure to the same contaminant or group  of  contaminants  from  other sources and routes; and  (v)  the  feasibility  of  achieving  more  stringent  remedial action objectives, based  on  experience  under  the  existing  state  remedial programs, particularly where toxicological, exposure, or other pertinent data are inadequate or nonexistent for a specific contaminant.  (c)  The  department  shall update such tables of contaminant-specific remedial action objectives every five years. The initial tables shall be published in draft form for public comment with a public comment  period of  one hundred twenty days, and be the subject of at least three public hearings throughout the state. Subsequent tables shall be the subject of at  least  one  public  hearing  and a public comment period of at least ninety days.  (d) For Track 4, exposed surface soils shall not  exceed  the  generic contaminant-specific  remedial  action objectives for soil developed for unrestricted, commercial, or industrial use pursuant to this subdivision which  conforms  with  the  site's  current  intended,   or   reasonably anticipated  future  use.  For purposes of this section "exposed surface soils" shall mean two feet for sites used for residential  use  and  one foot for sites used for commercial or industrial use.   7. Institutional and engineering controls.  (a)  The  department  may  approve  a proposed remedial work plan that includes  institutional  controls   and/or   engineering   controls   as components  of  a  proposed  remedial program provided the remedial work plan includes:  (i) a complete description of any  proposed  use  restrictions  and/or institutional   controls  and  the  mechanisms  that  will  be  used  to implement,  maintain,  monitor,  and  enforce  such   restrictions   and controls, both by the applicant and by state and local government;  (ii)  a  complete description of any proposed engineering controls and any operation, maintenance, and monitoring requirements,  including  the mechanisms  that  will  be  used  to  continually  implement,  maintain, monitor, and  enforce  such  controls  and  requirements,  both  by  the applicant and by state and local government;  (iii)  an evaluation of the reliability and viability of the long-term implementation, maintenance, monitoring, and enforcement of any proposed institutional or engineering controls and an analysis of  the  long-term costs  of  implementing,  maintaining,  monitoring  and  enforcing  such controls,  including  costs  that  may  be  borne  by  state  or   local governments;  (iv)  sufficient  analysis  to  support  a  conclusion  that effective implementation, maintenance, monitoring and enforcement of institutional and/or engineering controls can be reasonably expected;  (v) where required by the department, financial  assurance  to  ensure the  long-term  implementation, maintenance, monitoring, and enforcement of any such controls; and  (vi) a requirement that  any  engineering  control  must  be  used  in conjunction   with   institutional  controls  to  ensure  the  continued integrity of such engineering control.  (b) Within one hundred eighty days of  commencement  of  the  remedial design  or  at  least  three months prior to the date of the anticipated issuance of the certificate of completion, the  owner  of  a  brownfield site,  and/or any person responsible for implementing a remedial program at such site, where institutional or engineering controls  are  employed pursuant to this title, shall execute an environmental easement pursuant to title thirty-six of article seventy-one of this chapter.  (c)  The  owner  of  a  brownfield  site  at  which  institutional  or engineering controls are employed pursuant to this title  shall,  unless otherwise  provided in writing by the department, annually submit to the department a written statement by an individual  licensed  or  otherwise authorized  in  accordance  with  article  one hundred forty-five of the education law to practice the profession  of  engineering,  or  by  such other  expert  as  the  department  may find acceptable certifying under penalty of perjury that the institutional  controls  and/or  engineering  controls   employed  at  such  site  are  unchanged  from  the  previous certification and that  nothing  has  occurred  that  would  impair  the ability of such control to protect the public health and environment, or constitute  a  violation  or  failure  to  comply with any operation and maintenance plan for such controls and giving access to  the  department to  such  real  property  to  evaluate  continued  maintenance  of  such controls.  (d) At non-significant threat sites where contaminants in  groundwater at   the   site  boundary  contravene  drinking  water  standards,  such certification shall also certify that no new information has come to the owner's attention, including  groundwater  monitoring  data  from  wells located  at  the site boundary, if any, to indicate that the assumptions made in the qualitative exposure assessment of offsite contamination are no longer valid. Every five years the owner at such sites shall  certify that  the assumptions made in the qualitative exposure assessment remain valid. The requirement to provide such certifications may be  terminated by  a written determination by the commissioner in consultation with the commissioner of health, after notice to the parties  on  the  brownfield site contact list and a public comment period of thirty days.  (e)  The  commissioner  shall  create, update, and maintain a database system for public information purposes and  to  monitor  and  track  all brownfield  sites  subject  to  this  title. Data incorporated into such system for each site for which information has been  collected  pursuant to  this  title  shall  include,  but  shall  not  be limited to, a site summary, name of site owner, location, status of site remedial activity, and, if one has been created pursuant to  title  thirty-six  of  article seventy-one of this chapter, a copy of the environmental easement, and a contact number to obtain additional information. Sites shall be added to such  system  upon  the execution of a brownfield site cleanup agreement pursuant to section 27-1409 of this title. If and when an  environmental easement  is  modified  or  extinguished,  the copy of the environmental easement contained in the database shall be  updated  accordingly.  Such database  shall  be  in such a format that it can be readily searched by affected local governments and the public for purposes including but not limited to  determining  whether  an  environmental  easement  has  been recorded  for a site pursuant to title thirty-six of article seventy-one of  this  chapter.  The  database  shall  be  available  electronically. Information from this database shall be incorporated into the geographic information  system created and maintained by the department pursuant to section 3-0315 of this chapter.   8. Presumptive remedial strategies. Nothing herein contained shall  be deemed  to  require site-specific remedy selection, and the commissioner shall  have  the  power  to  develop  a  list  of  presumptive  remedial strategies  that  applicants may use to meet the requirements associated with Tracks 1 through 4 of this section. Such remedies may be  developed for  specific  site  types  and/or  contaminants  based  upon historical patterns  of  remedy  selection  and  the  department's  scientific  and engineering evaluation of performance data on technology implementation.   9.  Use  of innovative technologies. The commissioner, in consultation with the commissioner of health, shall consider and encourage the use of innovative technologies which will meet the remedial objectives of  this title.   Consistent  with  the  provisions  of  section  twelve  hundred eighty-five-f of  the  public  authorities  law,  the  commissioner,  in consultation   with   the  president  of  the  environmental  facilities corporation, shall encourage the development of such technologies.