§ 27-1405 — Definitions

§ 27-1405. Definitions.\n 1. "Applicant" shall mean a person whose request to participate in the\nbrownfield cleanup program under this title has been accepted by the\ndepartment:\n (a) "Participant" shall mean an applicant who either: (i) was the\nowner of the site at the time of the disposal or discharge of\ncontaminants or (ii) is otherwise a person responsible according to\napplicable principles of statutory or common law liability, unless such\nperson's liability arises solely as a result of such person's ownership\nor operation of or involvement with the site subsequent to the disposal\nor discharge of contaminants.\n (b) "Volunteer" shall mean an applicant other than a participant,\nincluding without limitation a person whose liability arises solely as a\nresult of such person's ownership or operation of or involvement with\nthe site subsequent to the disposal or discharge of contaminants,\nprovided however, such person exercises appropriate care with respect to\ncontamination found at the facility by taking reasonable steps to:\n (i) stop any continuing release;\n (ii) prevent any threatened future release; and\n (iii) prevent or limit human, environmental, or natural resource\nexposure to any previously released contamination.\n 2. "Brownfield site" or "site" shall mean any real property where a\ncontaminant is present at levels exceeding the soil cleanup objectives\nor other health-based or environmental standards, criteria or guidance\nadopted by the department that are applicable based on the reasonably\nanticipated use of the property, in accordance with applicable\nregulations. Such term shall not include real property:\n (a) listed in the registry of inactive hazardous waste disposal sites\nunder section 27-1305 of this article at the time of application to this\nprogram and given a classification as described in subparagraph one or\ntwo of paragraph b of subdivision two of section 27-1305 of this\narticle; provided, however, real property listed in the registry of\ninactive hazardous waste disposal sites under subparagraph two of\nparagraph b of subdivision two of section 27-1305 of this article, where\nsuch real property is owned by a volunteer or under contract to be\ntransferred to a volunteer, shall not be deemed ineligible to\nparticipate, provided that, prior to the site being accepted into the\nbrownfield cleanup program, the department has not identified any\nresponsible party for that property having the ability to pay for the\ninvestigation or cleanup of the property and further provided that the\nstatus of any such site as listed in the registry shall not be altered\nprior to the issuance of a certificate of completion pursuant to section\n27-1419 of this title. The department's assessment of eligibility under\nthis paragraph shall not constitute a finding concerning liability with\nrespect to the property;\n (b) listed on the national priorities list established under authority\nof 42 U.S.C. section 9605;\n (c) subject to an enforcement action under title seven or nine of this\narticle, or permitted or required to be permitted as a treatment,\nstorage or disposal facility; provided, that nothing herein contained\nshall be deemed otherwise to exclude from the scope of the term\n"brownfield site" a hazardous waste treatment, storage or disposal\nfacility having interim status according to regulations promulgated by\nthe commissioner and provided further that real property owned by a\nvolunteer or under contract to be transferred to a volunteer shall not\nbe deemed ineligible to participate provided that, prior to the site\nbeing accepted into the brownfield cleanup program, the department has\nnot identified any responsible party for that property having the\nability to pay for the investigation or cleanup of the property;\n (d) subject to an order for cleanup pursuant to article twelve of the\nnavigation law or pursuant to title ten of article seventeen of this\nchapter except such property shall not be deemed ineligible if it is\nsubject to a stipulation agreement; or\n (e) subject to any other on-going state or federal environmental\nenforcement action related to the contamination which is at or emanating\nfrom the site subject to the present application.\n 3. "Brownfield site contact list" shall mean a list of persons,\ngovernment agencies, groups, or organizations, including, but not\nlimited to the chief executive officer and zoning board of each county,\ncity, town and village in which such site is located, in a city with a\npopulation of one million or more, any community board in which such\nsite is located, the public water supplier which serves the area in\nwhich such site is located, any site residents, any person who has\nrequested to be placed on the site contact list, and the administrator\nof any school or day care facility located on the site for the purposes\nof posting and/or dissemination at the facility. For the purposes of\nthis section "water supplier" means any public water system as such term\nis defined for the purposes of the sanitary code of the state of New\nYork as authorized by section two hundred twenty-five of the public\nhealth law. Provided, however, that where the site or adjacent real\nproperty contains multiple dwelling units, the applicant shall work with\nthe department to develop an alternative method for providing such\nnotice in lieu of mailing to each individual.\n 4. "Brownfield site cleanup agreement" shall mean an agreement\nexecuted in accordance with section 27-1409 of this title by an\napplicant and the department for the purpose of completing a brownfield\nsite remedial program.\n 5. "Brownfield site remedial program" or "remedial program" shall mean\nall remedial activities or actions undertaken to eliminate, remove,\ntreat, abate, control, manage, or monitor contamination at or emanating\nfrom a brownfield site, including, but not limited to, the following:\n (a) remedial investigation and remedy selection activities needed to\ndevelop such a program;\n (b) design activities;\n (c) construction activities including without limitation grading,\ncontouring, trenching, grouting, capping, excavating, transporting,\nincinerating, thermally treating, chemically treating, biologically\ntreating, constructing leachate collection and treatment systems or\napplication of innovative technologies approved by the department;\n (d) interim remedial measures;\n (e) post-construction operation, maintenance, and monitoring;\n (f) restoration of the environment;\n (g) involvement by local governments of jurisdiction and by the\ngeneral public; or\n (h) oversight by the department.\n 6. "Citizen participation plan" shall mean the description of citizen\nparticipation activities prepared and carried out pursuant to section\n27-1417 of this title.\n 7. "Concentrated solid or semi-solid hazardous wastes" shall mean\nsolid or semi-solid hazardous wastes present in surface or subsurface\nsoil, surface water or groundwater in a concentrated form, such as\nprecipitated metallic salts, metal oxides, or chemical sludges.\n 7-a. "Contaminant" shall mean hazardous waste and/or petroleum as such\nterms are defined in this section.\n 8. "Contamination" or "contaminated" shall mean the presence of a\ncontaminant in any environmental media, including soil, surface water,\ngroundwater, air, or indoor air.\n 9. "Dense non-aqueous phase liquid" or "DNAPL" shall mean a hazardous\nwaste that is a liquid that is denser than water and does not dissolve\nor mix easily in water.\n 10. "Document repository" shall mean a repository of brownfield site\nremedial program documents approved by the department or released for\npublic notice established in a publicly accessible building near the\nlocation of such site.\n 11. "Engineering control" shall mean any physical barrier or method\nemployed to actively or passively contain, stabilize, or monitor\ncontamination, restrict the movement of contamination to ensure the\nlong-term effectiveness of a remedial program, or eliminate potential\nexposure pathways to contamination. Engineering controls include, but\nare not limited to, pavement, caps, covers, subsurface barriers, vapor\nbarriers, slurry walls, building ventilation systems, fences, access\ncontrols, provision of alternative water supplies via connection to an\nexisting public water supply, adding treatment technologies to such\nwater supplies, and installing filtration devices on private water\nsupplies.\n 12. "Feasible" shall mean suitable to site conditions, capable of\nbeing successfully carried out with available technology, implementable\nand cost effective.\n 13. "Financial assurance" shall include but not be limited to surety\nbonds, trust funds, letters of credit, insurance or a multiple of\nfinancial mechanisms as determined to be adequate by the department.\n 14. "Free product" shall mean an immiscible non-aqueous phase liquid,\nother than a dense non-aqueous phase liquid present as a liquid in\nsurface or sub-surface soil, surface water or groundwater in a\npotentially mobile state.\n 15. "Grossly contaminated soil" shall mean soil which contains free\nproduct or residual contamination which is identifiable either visually,\nthrough the perception of odor, by elevated contaminant vapor levels, by\nfield instrumentation, or is otherwise readily detectable.\n 16. "Groundwater" shall mean water below the land surface in a\nsaturated zone of soil or rock. This includes perched water separated\nfrom the main body of groundwater by an unsaturated zone.\n 17. "Hazardous waste" shall mean a hazardous waste as defined in\nsection 27-1301 of this article.\n 18. "Institutional control" shall mean any non-physical means of\nenforcing a restriction on the use of real property that limits human or\nenvironmental exposure, restricts the use of groundwater, provides\nnotice to potential owners, operators, or members of the public, or\nprevents actions that would interfere with the effectiveness of a\nremedial program or with the effectiveness and/or integrity of\noperation, maintenance, or monitoring activities at or pertaining to a\nbrownfield site.\n 19. "Interim remedial measures" shall mean activities to address both\nemergency and non-emergency site conditions, which can be undertaken\nwithout extensive investigation and evaluation, to prevent, mitigate, or\nremedy environmental damage or the consequences of environmental damage\nattributable to a site, including but not limited to, the following\nactivities: construction of diversion ditches, collection systems, free\nproduct recovery systems, or leachate collection systems; construction\nof fences or other barriers; installation of water filters; provision of\nalternative water systems; the removal of free product; or plume\ncontrol.\n 20. "Light Non Aqueous Phase Liquid" or "LNAPL" shall mean a\ncontaminant that is a liquid that is lighter than water and does not\ndissolve or mix easily in water.\n 21. "Municipality" shall mean a local public authority or public\nbenefit corporation, a county, city, town, village, school district,\nsupervisory district, district corporation, improvement district within\na county, city, town or village or Indian nation or tribe recognized by\nthe United States with a reservation wholly or partly within the\nboundaries of the state, or any combination thereof.\n 22. "Newspaper notice" shall mean the placement of a prominently\nlocated, paid newspaper advertisement in the community bulletin section\nor similar local section of a newspaper of general circulation in the\nvicinity of the brownfield site which is the subject of the notice. Such\nnotice shall be in English and in any other language spoken by\nsignificant numbers of people within the community.\n 23. "Non-aqueous phase liquid" shall mean a liquid that does not\ndissolve or mix easily in water.\n 24. "Off-site contamination" shall mean any contamination which has\nemanated from a brownfield site beyond the real property boundaries of\nsuch site, via movement through air, indoor air, soil, surface water or\ngroundwater.\n 25. "On-site contamination" shall mean any contamination located\nwithin the real property boundaries of a brownfield site.\n 26. "Permanent cleanup" or "permanent remedy" shall mean a cleanup or\nremedy that would allow a site to be used for any purpose without\nrestriction and without reliance on the long-term employment of\ninstitutional or engineering controls.\n 27. "Petroleum" shall have the meaning set forth in section one\nhundred seventy-two of the navigation law.\n 28. "Residual contamination" shall mean contamination remaining as a\nsolid, semi-solid or immiscible liquid in surface or subsurface soil,\ngeologic matrix pore spaces or fractures and held in place by capillary\nforces or other physical or chemical forces that will not drain from the\nformation.\n 29. "Affordable housing project" shall mean (a) a project as shall be\ndefined in regulation by the department, after consultation with the\ndivision of housing and community renewal, which shall at a minimum,\nestablish the percentage of units in the project that must be below a\ndefined percentage of the area median income; or (b) a project situated\non a brownfield site that demonstrates the project is the subject of a\ndetermination by a federal, state or local government housing agency\nthat all or a portion of the project or site will qualify for benefits,\nincluding but not limited to real property taxation exemptions, is or\nwill be eligible under an affordable housing program which requires that\na percentage of residential rental or home ownership dwelling units be\ndedicated to tenants or homeowners at a defined maximum percentage or\npercentages of area median income based on the occupants' households\nannual gross income. Such federal, state or local affordable housing\nprogram shall confer a benefit to the project. For the purposes of this\nsubdivision, the term "benefit" shall be broadly construed, and shall\ninclude, but not be limited to, tax benefits, including real estate tax\nbenefits, tax credits, bond financing, subsidy financing, and zoning\nvariances or waivers. Further, the department may by regulation, after\nconsulting with the division of housing and community renewal, exclude\nspecific benefits from qualifying pursuant to this subdivision. To\ndemonstrate eligibility under this subdivision, the project must present\na certification of compliance or other evidence of eligibility by a\nfederal, state, or local government affordable housing agency that such\nproject is an affordable housing project. For purposes of this\nsubdivision, "area median income" shall mean the area median income for\nthe primary metropolitan statistical area or for the county if located\noutside a metropolitan statistical area, as determined by the United\nStates department of housing and urban development or its successor for\na family of four, as adjusted for family size.\n 30. "Underutilized" shall be defined in regulation by the department,\nafter consultation with the business community and the city of New York.\nSuch regulations shall be adopted no later than October first, two\nthousand fifteen and take into consideration the existing use of a\nproperty relative to allowable development under zoning, the need for\nsubstantial government assistance to redevelop and other relevant\nfactors.\n 31. "Upside down" shall mean a property where the projected and\nincurred cost of the investigation and remediation which is protective\nfor the anticipated use of the property equals or exceeds seventy-five\npercent of its independent appraised value, as of the date of submission\nof the application for participation in the brownfield cleanup program,\ndeveloped under the hypothetical condition that the property is not\ncontaminated.\n 32. "Disadvantaged community" shall mean a community that is\nidentified pursuant to section 75-0111 of this chapter.\n 33. "Renewable energy facility site" shall mean real property: (a)\nthat is used for a renewable energy system, as defined in section\nsixty-six-p of the public service law; or (b) any co-located system\nstoring energy generated from such a renewable energy system prior to\ndelivering it to the bulk transmission, sub-transmission, or\ndistribution system.\n