§ 27-1415 — Remedial program requirements

§ 27-1415. Remedial program requirements.\n 1. Remedial programs. All remedial programs shall be protective of\npublic health and the environment including but not limited to\ngroundwater according to its classification pursuant to section 17-0301\nof this chapter; drinking water, surface water and air (including indoor\nair); sensitive populations, including children; and ecological\nresources, including fish and wildlife. In all cases, the target risk of\nresidual contamination at a site shall not exceed an excess cancer risk\nof one in one million for carcinogenic end points and a hazard index of\none for non-cancer end points.\n 2. Investigation. (a) Remedial investigation. A remedial investigation\nshall fully characterize the nature and extent of contamination at\nand/or emanating from a brownfield site. Such investigation shall\nemphasize data collection and sampling and monitoring, as necessary, and\nincludes but is not limited to: characterization of site geologic and\nhydrogeologic conditions, including groundwater flow, contaminant\nmovement, and the response of the groundwater system to extraction; and\nassessment of the existing and potential impact of groundwater\ncontamination on private or community water supply wells, surface water\nquality, air quality, and indoor air quality.\n (b) Qualitative exposure assessment. A qualitative exposure assessment\nshall qualitatively determine the route, intensity, frequency, and\nduration of actual or potential exposures of humans, fish and wildlife\nto contaminants. Such assessment must analyze the nature and size of the\npopulation currently exposed or which may reasonably be expected to be\nexposed to the contaminants that are present at or emanating from a\nsite, and shall include a determination of the reasonably anticipated\nfuture land use of the site and affected off-site areas and the\nreasonably anticipated future groundwater use. A qualitative exposure\nassessment consists of characterizing the exposure setting, identifying\ncurrent and reasonably foreseeable exposure pathways, and evaluating\ncontaminant fate and transport. Some off-site field investigation to\nidentify and sample any potential areas of contamination may be required\nto support the exposure assessment.\n 3. Selection. The remedial program for a site shall be selected upon\ndue consideration of the following factors:\n (a) Conformance to standards and criteria that are generally\napplicable, consistently applied, and officially promulgated, that are\neither directly applicable, or that are not directly applicable but are\nrelevant and appropriate, unless good cause exists why conformity should\nbe dispensed with, and with consideration being given to guidance\ndetermined, after the exercise of engineering judgment, to be\napplicable. Such good cause exists if any of the following is present:\n (i) the proposed action is only part of a complete program that will\nconform to such standard or criterion upon completion; or\n (ii) conformity to such standard or criterion will result in greater\nrisk to the public health or to the environment than alternatives; or\n (iii) conformity to such standard or criterion is technically\nimpracticable from an engineering perspective; or\n (iv) the program will attain a level of performance that is equivalent\nto that required by the standard or criterion through the use of another\nmethod or approach.\n (b) Overall protectiveness of the public health and the environment.\n (c) Short-term effectiveness.\n (d) Long-term effectiveness and permanence. A remedial program that\nachieves a complete and permanent cleanup of the site is to be preferred\nover a remedial program that does not do so.\n (e) Reduction in toxicity, mobility and/or volume of contamination\nwith treatment. A remedial program that permanently and significantly\nreduces the toxicity, mobility and/or volume of contamination is to be\npreferred over a remedial program that does not do so. The following is\nthe hierarchy of the remedial technologies ranked from the most\npreferable to the least preferable: destruction, on-site or off-site;\nseparation/treatment, on-site or off-site; solidification/chemical\nfixation, on-site or off-site; control and isolation, on-site or\noff-site.\n (f) Implementability.\n (g) Cost effectiveness.\n (h) Community acceptance.\n (i) Land use. The current, intended, and reasonably anticipated future\nland uses of the site and its surroundings shall be considered in the\nselection of the remedy for soil remediation, provided the department\ndetermines that there is reasonable certainty associated with such use.\nIf the use proposed for the site does not conform with applicable zoning\nlaws or maps or the reasonably anticipated future use of the site\ndetermined by the department pursuant to this section, the department\nshall disapprove such use. The reasonably anticipated future use of the\nsite and its surroundings shall be documented by the applicant and\ndetermined by the department, taking into consideration factors\nincluding, but not limited to, those listed below:\n (i) Current use and historical and/or recent development patterns.\n (ii) Applicable zoning laws and maps.\n (iii) Brownfield opportunity areas as designated pursuant to section\nnine hundred seventy-r of the general municipal law.\n (iv) Applicable comprehensive community master plans, local waterfront\nrevitalization plans as provided for in article forty-two of the\nexecutive law, or any other applicable land use plan formally adopted by\na municipality.\n (v) Proximity to real property currently used for residential use, and\nto urban, commercial, industrial, agricultural, school or day care\nfacilities and recreational areas.\n (vi) Any written and oral comments submitted by members of the public\non the applicant's proposed use as part of citizen participation\nactivities performed by the applicant pursuant to this title.\n (vii) Environmental justice concerns, which for purposes of this\ntitle, include the extent to which the proposed use may reasonably be\nexpected to cause or increase a disproportionate burden on the community\nin which the site is located, including low-income minority communities,\nor to result in a disproportionate concentration of commercial or\nindustrial uses in what has historically been a mixed use or residential\ncommunity.\n (viii) Federal or state land use designations.\n (ix) Population growth patterns and projections.\n (x) Accessibility to existing infrastructure.\n (xi) Proximity of the site to important cultural resources, including\nfederal or state historic or heritage sites or Native American religious\nsites.\n (xii) Natural resources, including proximity of the site to important\nfederal, state or local natural resources, including waterways, wildlife\nrefuges, wetlands, or critical habitats of endangered or threatened\nspecies.\n (xiii) Potential vulnerability of groundwater to contamination that\nmight emanate from the site, including proximity to wellhead protection\nand groundwater recharge areas and other areas identified by the\ndepartment and the state's comprehensive groundwater remediation and\nprotection program established pursuant to title thirty-one of article\nfifteen of this chapter.\n (xiv) Proximity to floodplains.\n (xv) Geography and geology.\n (xvi) Current institutional controls applicable to the site.\n 4. Tracks. The commissioner, in consultation with the commissioner of\nhealth, shall propose within twelve months and thereafter timely\npromulgate regulations which create a multi-track approach for the\nremediation of contamination, and, commencing on the effective date of\nsuch regulations, utilize such multi-track approach. Such regulations\nshall provide that groundwater use in Tracks 2, 3 or 4 can be either\nrestricted or unrestricted. The tracks shall be as follows:\n Track 1: The remedial program shall achieve a cleanup level that will\nallow the site to be used for any purpose without restriction and\nwithout reliance on the long-term employment of institutional or\nengineering controls, and shall achieve contaminant-specific remedial\naction objectives for soil which conform with those contained in the\ngeneric table of contaminant-specific remedial action objectives for\nunrestricted use developed pursuant to subdivision six of this section.\nProvided, however, that volunteers whose proposed remedial program for\nthe remediation of groundwater may require the long-term employment of\ninstitutional or engineering controls after the bulk reduction of\ngroundwater contamination to asymptotic levels has been achieved but\nwhose program would otherwise conform with the requirements necessary to\nqualify for Track 1, shall qualify for Track 1.\n Track 2: The remedial program may include restrictions on the use of\nthe site or reliance on the long-term employment of engineering and/or\ninstitutional controls, but shall achieve contaminant-specific remedial\naction objectives for soil which conform with those contained in one of\nthe generic tables developed pursuant to subdivision six of this section\nwithout the use of institutional or engineering controls to reach such\nobjectives.\n Track 3: The remedial program shall achieve contaminant-specific\nremedial action objectives for soil which conform with the criteria used\nto develop the generic tables for such objectives developed pursuant to\nsubdivision six of this section but may use site specific data to\ndetermine such objectives.\n Track 4: The remedial program shall achieve a cleanup level that will\nbe protective for the site's current, intended or reasonably anticipated\nresidential, commercial, or industrial use with restrictions and with\nreliance on the long-term employment of institutional or engineering\ncontrols to achieve such level. The regulations shall include a\nprovision requiring that a cleanup level which poses a risk in\nexceedance of an excess cancer risk of one in one million for\ncarcinogenic end points and a hazard index of one for non-cancer end\npoints for a specific contaminant at a specific site may be approved by\nthe department without requiring the use of institutional or engineering\ncontrols to eliminate exposure only upon a site specific finding by the\ncommissioner, in consultation with the commissioner of health, that such\nlevel shall be protective of public health and environment. Such finding\nshall be included in the draft remedial work plan for the site and fully\ndescribed in the notice and fact sheet provided for such work plan.\n 5. Source removal and control measures. The following is the hierarchy\nof source removal and control measures ranked from most preferable to\nleast preferable. For all applicants, the remedial program selected\npursuant to this title shall address sources in the following manner:\n (a) Removal and/or treatment. All free product, concentrated solid or\nsemi-solid contaminants, dense non-aqueous phase liquid, light\nnon-aqueous phase liquid and/or grossly contaminated soil shall be\nremoved and/or treated; provided however if the removal and/or treatment\nof all such contamination is not feasible, such contamination shall be\nremoved or treated to the greatest extent feasible.\n (b) Containment. Any source remaining following removal and/or\ntreatment pursuant to this subdivision shall be contained; provided\nhowever if full containment is not feasible, such source shall be\ncontained to the greatest extent feasible.\n (c) Elimination of exposure. Exposure to any source remaining\nfollowing removal, treatment and/or containment pursuant to this\nsubdivision shall be eliminated through additional measures, including\nbut not limited to, as applicable, the timely and sustained provision of\nalternative water supplies and the elimination of volatilization into\nbuildings; provided however if such elimination is not feasible such\nexposure shall be eliminated to the greatest extent feasible.\n (d) Treatment of source at the point of exposure. Treatment of source\nat the point of exposure, including but not limited to, as applicable,\nwellhead treatment or the management of volatile contamination within\nbuildings, shall be considered as a measure of last resort.\n 5-a. Plume stabilization shall be evaluated for all remedies and the\nfurther migration of contamination from the site shall be prevented to\nthe extent feasible, including any actions that would be necessary to\nmaintain and monitor such stabilization. In addition, a participant\nshall prevent the further migration of plumes to the extent feasible.\n 6. Soil cleanup objectives. (a) The regulations shall include three\ngeneric tables of contaminant-specific remedial action objectives for\nsoil based on current, intended or reasonably anticipated future use,\nincluding: (i) unrestricted, (ii) commercial and (iii) industrial.\n (b) Such objectives shall be protective of public health and the\nenvironment pursuant to subdivision one of this section, and the level\nof risk associated with remedial action objectives for individual\ncontaminants listed in the table or developed by the applicant pursuant\nto Track 3 shall not exceed an excess cancer risk of one in one million\nfor carcinogenic end points and a hazard index of one for non-cancer end\npoints; provided, however, that if the background soil concentration for\na contaminant in rural soils in New York state exceeds such risk level,\nthe contaminant-specific action objective for such contaminant may be\nestablished equal to such background concentration. In developing such\ntables, the department shall consider:\n (i) standards, criteria and guidance which are found by the department\nto be applicable or relevant and appropriate pursuant to paragraph (a)\nof subdivision three of this section;\n (ii) the behaviors of children;\n (iii) the protection of adjacent residential uses;\n (iv) contaminants which act through similar toxicological mechanisms\nor have the potential for additive and/or synergistic effects, and\nexposure to the same contaminant or group of contaminants from other\nsources and routes; and\n (v) the feasibility of achieving more stringent remedial action\nobjectives, based on experience under the existing state remedial\nprograms, particularly where toxicological, exposure, or other pertinent\ndata are inadequate or nonexistent for a specific contaminant.\n (c) The department shall update such tables of contaminant-specific\nremedial action objectives every five years. The initial tables shall be\npublished in draft form for public comment with a public comment period\nof one hundred twenty days, and be the subject of at least three public\nhearings throughout the state. Subsequent tables shall be the subject of\nat least one public hearing and a public comment period of at least\nninety days.\n (d) For Track 4, exposed surface soils shall not exceed the generic\ncontaminant-specific remedial action objectives for soil developed for\nunrestricted, commercial, or industrial use pursuant to this subdivision\nwhich conforms with the site's current intended, or reasonably\nanticipated future use. For purposes of this section "exposed surface\nsoils" shall mean two feet for sites used for residential use and one\nfoot for sites used for commercial or industrial use.\n 7. Institutional and engineering controls.\n (a) The department may approve a proposed remedial work plan that\nincludes institutional controls and/or engineering controls as\ncomponents of a proposed remedial program provided the remedial work\nplan includes:\n (i) a complete description of any proposed use restrictions and/or\ninstitutional controls and the mechanisms that will be used to\nimplement, maintain, monitor, and enforce such restrictions and\ncontrols, both by the applicant and by state and local government;\n (ii) a complete description of any proposed engineering controls and\nany operation, maintenance, and monitoring requirements, including the\nmechanisms that will be used to continually implement, maintain,\nmonitor, and enforce such controls and requirements, both by the\napplicant and by state and local government;\n (iii) an evaluation of the reliability and viability of the long-term\nimplementation, maintenance, monitoring, and enforcement of any proposed\ninstitutional or engineering controls and an analysis of the long-term\ncosts of implementing, maintaining, monitoring and enforcing such\ncontrols, including costs that may be borne by state or local\ngovernments;\n (iv) sufficient analysis to support a conclusion that effective\nimplementation, maintenance, monitoring and enforcement of institutional\nand/or engineering controls can be reasonably expected;\n (v) where required by the department, financial assurance to ensure\nthe long-term implementation, maintenance, monitoring, and enforcement\nof any such controls; and\n (vi) a requirement that any engineering control must be used in\nconjunction with institutional controls to ensure the continued\nintegrity of such engineering control.\n (b) Within one hundred eighty days of commencement of the remedial\ndesign or at least three months prior to the date of the anticipated\nissuance of the certificate of completion, the owner of a brownfield\nsite, and/or any person responsible for implementing a remedial program\nat such site, where institutional or engineering controls are employed\npursuant to this title, shall execute an environmental easement pursuant\nto title thirty-six of article seventy-one of this chapter.\n (c) The owner of a brownfield site at which institutional or\nengineering controls are employed pursuant to this title shall, unless\notherwise provided in writing by the department, annually submit to the\ndepartment a written statement by an individual licensed or otherwise\nauthorized in accordance with article one hundred forty-five of the\neducation law to practice the profession of engineering, or by such\nother expert as the department may find acceptable certifying under\npenalty of perjury that the institutional controls and/or engineering\ncontrols employed at such site are unchanged from the previous\ncertification and that nothing has occurred that would impair the\nability of such control to protect the public health and environment, or\nconstitute a violation or failure to comply with any operation and\nmaintenance plan for such controls and giving access to the department\nto such real property to evaluate continued maintenance of such\ncontrols.\n (d) At non-significant threat sites where contaminants in groundwater\nat the site boundary contravene drinking water standards, such\ncertification shall also certify that no new information has come to the\nowner's attention, including groundwater monitoring data from wells\nlocated at the site boundary, if any, to indicate that the assumptions\nmade in the qualitative exposure assessment of offsite contamination are\nno longer valid. Every five years the owner at such sites shall certify\nthat the assumptions made in the qualitative exposure assessment remain\nvalid. The requirement to provide such certifications may be terminated\nby a written determination by the commissioner in consultation with the\ncommissioner of health, after notice to the parties on the brownfield\nsite contact list and a public comment period of thirty days.\n (e) The commissioner shall create, update, and maintain a database\nsystem for public information purposes and to monitor and track all\nbrownfield sites subject to this title. Data incorporated into such\nsystem for each site for which information has been collected pursuant\nto this title shall include, but shall not be limited to, a site\nsummary, name of site owner, location, status of site remedial activity,\nand, if one has been created pursuant to title thirty-six of article\nseventy-one of this chapter, a copy of the environmental easement, and a\ncontact number to obtain additional information. Sites shall be added to\nsuch system upon the execution of a brownfield site cleanup agreement\npursuant to section 27-1409 of this title. If and when an environmental\neasement is modified or extinguished, the copy of the environmental\neasement contained in the database shall be updated accordingly. Such\ndatabase shall be in such a format that it can be readily searched by\naffected local governments and the public for purposes including but not\nlimited to determining whether an environmental easement has been\nrecorded for a site pursuant to title thirty-six of article seventy-one\nof this chapter. The database shall be available electronically.\nInformation from this database shall be incorporated into the geographic\ninformation system created and maintained by the department pursuant to\nsection 3-0315 of this chapter.\n 8. Presumptive remedial strategies. Nothing herein contained shall be\ndeemed to require site-specific remedy selection, and the commissioner\nshall have the power to develop a list of presumptive remedial\nstrategies that applicants may use to meet the requirements associated\nwith Tracks 1 through 4 of this section. Such remedies may be developed\nfor specific site types and/or contaminants based upon historical\npatterns of remedy selection and the department's scientific and\nengineering evaluation of performance data on technology implementation.\n 9. Use of innovative technologies. The commissioner, in consultation\nwith the commissioner of health, shall consider and encourage the use of\ninnovative technologies which will meet the remedial objectives of this\ntitle. Consistent with the provisions of section twelve hundred\neighty-five-f of the public authorities law, the commissioner, in\nconsultation with the president of the environmental facilities\ncorporation, shall encourage the development of such technologies.\n