Section 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,  the
  redevelopment  or  reuse  of which may be complicated by the presence or
  potential presence of a contaminant. 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 except until July first, two  thousand  five,
  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 prior to the effective date of this
  article, where such real property is owned by a volunteer shall  not  be
  deemed ineligible to participate 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;
    (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,  except  a treatment, storage or disposal facility subject to a
  permit;  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;
    (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, 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.