2023 New York Laws › ENV - Environmental Conservation › Article 27 - Collection, Treatment and Disposal of Refuse and Other Solid Waste › Title 14 - Brownfield Cleanup Program › 27-1405 - 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 mean (a) a project as 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; or (b) a project  situated
on  a  brownfield site that demonstrates the project is the subject of a
determination by a federal, state or  local  government  housing  agency
that  all or a portion of the project or site will qualify for benefits,
including but not limited to real property taxation  exemptions,  is  or
will be eligible under an affordable housing program which requires that
a  percentage  of residential rental or home ownership dwelling units be
dedicated to tenants or homeowners at a defined  maximum  percentage  or
percentages  of  area  median  income based on the occupants' households
annual gross income. Such federal, state  or  local  affordable  housing
program  shall confer a benefit to the project. For the purposes of this
subdivision, the term "benefit" shall be broadly  construed,  and  shall
include,  but not be limited to, tax benefits, including real estate tax
benefits, tax credits, bond financing,  subsidy  financing,  and  zoning
variances  or  waivers. Further, the department may by regulation, after
consulting with the division of housing and community  renewal,  exclude
specific  benefits  from  qualifying  pursuant  to  this subdivision. To
demonstrate eligibility under this subdivision, the project must present
a certification of compliance or other  evidence  of  eligibility  by  a
federal,  state, or local government affordable housing agency that such

project  is  an  affordable  housing  project.  For  purposes  of   this
subdivision,  "area median income" shall mean the area median income for
the primary metropolitan statistical area or for the county  if  located
outside  a  metropolitan  statistical  area, as determined by the United
States department of housing and urban development or its successor  for
a family of four, as adjusted for family size.
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.
32.   "Disadvantaged   community"  shall  mean  a  community  that  is
identified pursuant to section 75-0111 of this chapter.
33. "Renewable energy facility site" shall  mean  real  property:  (a)
that  is  used  for  a  renewable  energy  system, as defined in section
sixty-six-p of the public service law;  or  (b)  any  co-located  system
storing  energy  generated  from such a renewable energy system prior to
delivering  it  to   the   bulk   transmission,   sub-transmission,   or
distribution system.