§ 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 where a
contaminant is present at levels exceeding the soil cleanup objectives
or other health-based or environmental standards, criteria or guidance
adopted by the department that are applicable based on the reasonably
anticipated use of the property, in accordance with applicable
regulations. 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, 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, where
such real property is owned by a volunteer or under contract to be
transferred to a volunteer, shall not be deemed ineligible to
participate, provided that, prior to the site being accepted into the
brownfield cleanup program, the department has not identified any
responsible party for that property having the ability to pay for the
investigation or cleanup of the property 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. The department's assessment of eligibility under
this paragraph shall not constitute a finding concerning liability with
respect to the property;

(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, or permitted or required to be permitted as a treatment,
storage or disposal facility; 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 and provided further that real property owned by a
volunteer or under contract to be transferred to a volunteer shall not
be deemed ineligible to participate provided that, prior to the site
being accepted into the brownfield cleanup program, the department has
not identified any responsible party for that property having the
ability to pay for the investigation or cleanup of the property;

(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, in a city with a
population of one million or more, any community board 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.

29. "Affordable housing project" shall mean (a) a project as shall be
defined in regulation by the department, after consultation with the
division of housing and community renewal, which shall at a minimum,
establish the percentage of units in the project that must be below a
defined percentage of the area median income; or (b) a project situated
on a brownfield site that demonstrates the project is the subject of a
determination by a federal, state or local government housing agency
that all or a portion of the project or site will qualify for benefits,
including but not limited to real property taxation exemptions, is or
will be eligible under an affordable housing program which requires that
a percentage of residential rental or home ownership dwelling units be
dedicated to tenants or homeowners at a defined maximum percentage or
percentages of area median income based on the occupants' households
annual gross income. Such federal, state or local affordable housing
program shall confer a benefit to the project. For the purposes of this
subdivision, the term "benefit" shall be broadly construed, and shall
include, but not be limited to, tax benefits, including real estate tax
benefits, tax credits, bond financing, subsidy financing, and zoning
variances or waivers. Further, the department may by regulation, after
consulting with the division of housing and community renewal, exclude
specific benefits from qualifying pursuant to this subdivision. To
demonstrate eligibility under this subdivision, the project must present
a certification of compliance or other evidence of eligibility by a
federal, state, or local government affordable housing agency that such
project is an affordable housing project. For purposes of this
subdivision, "area median income" shall mean the area median income for
the primary metropolitan statistical area or for the county if located
outside a metropolitan statistical area, as determined by the United
States department of housing and urban development or its successor for
a family of four, as adjusted for family size.

30. "Underutilized" shall be defined in regulation by the department,
after consultation with the business community and the city of New York.
Such regulations shall be adopted no later than October first, two
thousand fifteen and take into consideration the existing use of a
property relative to allowable development under zoning, the need for
substantial government assistance to redevelop and other relevant
factors.

31. "Upside down" shall mean a property where the projected and
incurred cost of the investigation and remediation which is protective
for the anticipated use of the property equals or exceeds seventy-five
percent of its independent appraised value, as of the date of submission
of the application for participation in the brownfield cleanup program,
developed under the hypothetical condition that the property is not
contaminated.

32. "Disadvantaged community" shall mean a community that is
identified pursuant to section 75-0111 of this chapter.

33. "Renewable energy facility site" shall mean real property: (a)
that is used for a renewable energy system, as defined in section
sixty-six-p of the public service law; or (b) any co-located system
storing energy generated from such a renewable energy system prior to
delivering it to the bulk transmission, sub-transmission, or
distribution system.