NY Env Conserv L § 27-1405 (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 27-1405 - Definitions.

§ 27-1405. Definitions.   1. "Applicant" shall mean a person whose request to participate in the brownfield  cleanup  program  under  this title has been accepted by the department:  (a) "Participant" shall mean an applicant  who  either:  (i)  was  the owner  of  the  site  at  the  time  of  the  disposal  or  discharge of contaminants or (ii) is otherwise  a  person  responsible  according  to applicable  principles of statutory or common law liability, unless such person's liability arises solely as a result of such person's  ownership or  operation of or involvement with the site subsequent to the disposal or discharge of contaminants.  (b) "Volunteer" shall mean an  applicant  other  than  a  participant, including without limitation a person whose liability arises solely as a result  of  such  person's ownership or operation of or involvement with the site subsequent  to  the  disposal  or  discharge  of  contaminants, provided however, such person exercises appropriate care with respect to contamination found at the facility by taking reasonable steps to:  (i) stop any continuing release;  (ii) prevent any threatened future release; and  (iii)  prevent  or  limit  human,  environmental,  or natural resource exposure to any previously released contamination.   2. "Brownfield site" or "site" shall mean any real  property  where  a contaminant  is  present at levels exceeding the soil cleanup objectives or other health-based or environmental standards, criteria  or  guidance adopted  by  the  department that are applicable based on the reasonably anticipated  use  of  the  property,  in  accordance   with   applicable regulations. Such term shall not include real property:  (a)  listed in the registry of inactive hazardous waste disposal sites under section 27-1305 of this article at the time of application to this program and given a classification as described in subparagraph  one  or two  of  paragraph  b  of  subdivision  two  of  section 27-1305 of this article; provided, however, real property  listed  in  the  registry  of inactive  hazardous  waste  disposal  sites  under  subparagraph  two of paragraph b of subdivision two of section 27-1305 of this article, where such real property is owned by a  volunteer  or  under  contract  to  be transferred   to   a  volunteer,  shall  not  be  deemed  ineligible  to participate, provided that, prior to the site being  accepted  into  the brownfield  cleanup  program,  the  department  has  not  identified any responsible party for that property having the ability to  pay  for  the investigation  or  cleanup of the property and further provided that the status of any such site as listed in the registry shall not  be  altered prior to the issuance of a certificate of completion pursuant to section 27-1419  of this title. The department's assessment of eligibility under this paragraph shall not constitute a finding concerning liability  with respect to the property;  (b) listed on the national priorities list established under authority of 42 U.S.C. section 9605;  (c) subject to an enforcement action under title seven or nine of this article,  or  permitted  or  required  to  be  permitted as a treatment, storage or disposal facility; provided, that  nothing  herein  contained shall  be  deemed  otherwise  to  exclude  from  the  scope  of the term "brownfield site" a  hazardous  waste  treatment,  storage  or  disposal facility  having  interim status according to regulations promulgated by the commissioner and provided further that  real  property  owned  by  a volunteer  or  under contract to be transferred to a volunteer shall not be deemed ineligible to participate provided that,  prior  to  the  site being  accepted  into the brownfield cleanup program, the department has  not identified any  responsible  party  for  that  property  having  the ability to pay for the investigation or cleanup of the property;  (d)  subject to an order for cleanup pursuant to article twelve of the navigation law or pursuant to title ten of  article  seventeen  of  this chapter  except  such  property  shall not be deemed ineligible if it is subject to a stipulation agreement; or  (e) subject to any  other  on-going  state  or  federal  environmental enforcement action related to the contamination which is at or emanating from the site subject to the present application.   3.  "Brownfield  site  contact  list"  shall  mean  a list of persons, government  agencies,  groups,  or  organizations,  including,  but  not limited  to the chief executive officer and zoning board of each county, city, town and village in which such site is located, in a city  with  a population  of  one  million  or more, any community board in which such site is located, the public water supplier  which  serves  the  area  in which  such  site  is  located,  any  site residents, any person who has requested to be placed on the site contact list, and  the  administrator of  any school or day care facility located on the site for the purposes of posting and/or dissemination at the facility.  For  the  purposes  of this section "water supplier" means any public water system as such term is  defined  for  the  purposes of the sanitary code of the state of New York as authorized by section two  hundred  twenty-five  of  the  public health  law.  Provided,  however,  that  where the site or adjacent real property contains multiple dwelling units, the applicant shall work with the department to develop  an  alternative  method  for  providing  such notice in lieu of mailing to each individual.   4.  "Brownfield  site  cleanup  agreement"  shall  mean  an  agreement executed in  accordance  with  section  27-1409  of  this  title  by  an applicant  and the department for the purpose of completing a brownfield site remedial program.   5. "Brownfield site remedial program" or "remedial program" shall mean all remedial activities or  actions  undertaken  to  eliminate,  remove, treat,  abate, control, manage, or monitor contamination at or emanating from a brownfield site, including, but not limited to, the following:  (a) remedial investigation and remedy selection activities  needed  to develop such a program;  (b) design activities;  (c)  construction  activities  including  without  limitation grading, contouring,  trenching,  grouting,  capping,  excavating,  transporting, incinerating,  thermally  treating,  chemically  treating,  biologically treating, constructing leachate  collection  and  treatment  systems  or application of innovative technologies approved by the department;  (d) interim remedial measures;  (e) post-construction operation, maintenance, and monitoring;  (f) restoration of the environment;  (g)  involvement  by  local  governments  of  jurisdiction  and by the general public; or  (h) oversight by the department.   6. "Citizen participation plan" shall mean the description of  citizen participation  activities  prepared  and carried out pursuant to section 27-1417 of this title.   7. "Concentrated solid or  semi-solid  hazardous  wastes"  shall  mean solid  or  semi-solid  hazardous wastes present in surface or subsurface soil, surface water or groundwater  in  a  concentrated  form,  such  as precipitated metallic salts, metal oxides, or chemical sludges.   7-a. "Contaminant" shall mean hazardous waste and/or petroleum as such terms are defined in this section.    8.  "Contamination"  or  "contaminated"  shall  mean the presence of a contaminant in any environmental media, including soil,  surface  water, groundwater, air, or indoor air.   9.  "Dense non-aqueous phase liquid" or "DNAPL" shall mean a hazardous waste that is a liquid that is denser than water and does  not  dissolve or mix easily in water.   10.  "Document  repository" shall mean a repository of brownfield site remedial program documents approved by the department  or  released  for public  notice  established  in  a publicly accessible building near the location of such site.   11. "Engineering control" shall mean any physical  barrier  or  method employed  to  actively  or  passively  contain,  stabilize,  or  monitor contamination, restrict the movement  of  contamination  to  ensure  the long-term  effectiveness  of  a remedial program, or eliminate potential exposure pathways to contamination. Engineering  controls  include,  but are  not  limited to, pavement, caps, covers, subsurface barriers, vapor barriers, slurry walls, building  ventilation  systems,  fences,  access controls,  provision  of alternative water supplies via connection to an existing public water supply,  adding  treatment  technologies  to  such water  supplies,  and  installing  filtration  devices  on private water supplies.   12. "Feasible" shall mean suitable  to  site  conditions,  capable  of being  successfully carried out with available technology, implementable and cost effective.   13. "Financial assurance" shall include but not be limited  to  surety bonds,  trust  funds,  letters  of  credit,  insurance  or a multiple of financial mechanisms as determined to be adequate by the department.   14. "Free product" shall mean an immiscible non-aqueous phase  liquid, other  than  a  dense  non-aqueous  phase  liquid present as a liquid in surface  or  sub-surface  soil,  surface  water  or  groundwater  in   a potentially mobile state.   15.  "Grossly  contaminated  soil" shall mean soil which contains free product or residual contamination which is identifiable either visually, through the perception of odor, by elevated contaminant vapor levels, by field instrumentation, or is otherwise readily detectable.   16. "Groundwater" shall  mean  water  below  the  land  surface  in  a saturated  zone  of  soil or rock. This includes perched water separated from the main body of groundwater by an unsaturated zone.   17. "Hazardous waste" shall mean  a  hazardous  waste  as  defined  in section 27-1301 of this article.   18.  "Institutional  control"  shall  mean  any  non-physical means of enforcing a restriction on the use of real property that limits human or environmental exposure,  restricts  the  use  of  groundwater,  provides notice  to  potential  owners,  operators,  or members of the public, or prevents actions that  would  interfere  with  the  effectiveness  of  a remedial   program   or  with  the  effectiveness  and/or  integrity  of operation, maintenance, or monitoring activities at or pertaining  to  a brownfield site.   19.  "Interim remedial measures" shall mean activities to address both emergency and non-emergency site conditions,  which  can  be  undertaken without extensive investigation and evaluation, to prevent, mitigate, or remedy  environmental damage or the consequences of environmental damage attributable to a site, including but  not  limited  to,  the  following activities:  construction of diversion ditches, collection systems, free product recovery systems, or leachate collection  systems;  construction of fences or other barriers; installation of water filters; provision of alternative  water  systems;  the  removal  of  free  product;  or plume control.    20.  "Light  Non  Aqueous  Phase  Liquid"  or  "LNAPL"  shall  mean  a contaminant  that  is  a  liquid that is lighter than water and does not dissolve or mix easily in water.   21.  "Municipality"  shall  mean  a  local  public authority or public benefit corporation, a county, city,  town,  village,  school  district, supervisory  district, district corporation, improvement district within a county, city, town or village or Indian nation or tribe recognized  by the  United  States  with  a  reservation  wholly  or  partly within the boundaries of the state, or any combination thereof.   22. "Newspaper notice" shall  mean  the  placement  of  a  prominently located,  paid newspaper advertisement in the community bulletin section or similar local section of a newspaper of general  circulation  in  the vicinity of the brownfield site which is the subject of the notice. Such notice  shall  be  in  English  and  in  any  other  language  spoken by significant numbers of people within the community.   23. "Non-aqueous phase liquid" shall  mean  a  liquid  that  does  not dissolve or mix easily in water.   24.  "Off-site  contamination"  shall mean any contamination which has emanated from a brownfield site beyond the real property  boundaries  of such  site, via movement through air, indoor air, soil, surface water or groundwater.   25. "On-site  contamination"  shall  mean  any  contamination  located within the real property boundaries of a brownfield site.   26.  "Permanent cleanup" or "permanent remedy" shall mean a cleanup or remedy that would allow a site  to  be  used  for  any  purpose  without restriction   and  without  reliance  on  the  long-term  employment  of institutional or engineering controls.   27. "Petroleum" shall have  the  meaning  set  forth  in  section  one hundred seventy-two of the navigation law.   28.  "Residual  contamination" shall mean contamination remaining as a solid, semi-solid or immiscible liquid in surface  or  subsurface  soil, geologic  matrix pore spaces or fractures and held in place by capillary forces or other physical or chemical forces that will not drain from the formation.   29. "Affordable housing project" shall be defined in regulation by the department,  after  consultation  with  the  division  of  housing   and community renewal, which shall at a minimum, establish the percentage of units in the project that must be below a defined percentage of the area median income.   30.  "Underutilized" shall be defined in regulation by the department, after consultation with the business community and the city of New York. Such regulations shall be adopted  no  later  than  October  first,  two thousand  fifteen  and  take  into  consideration  the existing use of a property relative to allowable development under zoning,  the  need  for substantial  government  assistance  to  redevelop  and  other  relevant factors.   31. "Upside down" shall  mean  a  property  where  the  projected  and incurred  cost  of the investigation and remediation which is protective for the anticipated use of the property equals or  exceeds  seventy-five percent of its independent appraised value, as of the date of submission of  the application for participation in the brownfield cleanup program, developed under the hypothetical condition  that  the  property  is  not contaminated.