§ 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.