N.Y. Environmental Conservation Law § 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.