Section 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, 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)  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.
    (c) 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.
    (d) 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.