2023 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,  school  or day care
facilities and recreational areas.
(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.