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Subpart 375-3: Brownfield Cleanup Program

(Environmental Conservation Law (ECL) article 1, section 0101; ECL article 27, titles 13 and 14; ECL article 52, title 3; ECL article 56, title 5; ECL article 71, title 36; ECL article 3, section 0301; chapter 1, laws of 2003; chapter 577, laws of 2004 and State Finance Law article 6, section 97-b)

[Effective December 14, 2006]

[page 1 of 1]

Contents:

Sec.

§375-3.1 Purpose; Applicability.

This subpart applies to the development and implementation of remedial programs for brownfield sites pursuant to ECL 27-1401, et seq. This subpart addresses requirements in addition to those requirements identified in subpart 375-1.

§375-3.2 Definitions.

As used in this subpart, the following terms have the following meanings:

(a) "Alternatives analysis" means a study undertaken to develop and evaluate options for remedial action in accordance with this subpart.

(b) "Applicant" means a person whose request to participate in the brownfield cleanup program has been accepted by the Department:

(1) "Participant" means 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.

(2) "Volunteer" means 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.

(c) "Brownfield site cleanup agreement" means an agreement executed in accordance with ECL 27-1409 by an applicant and the Department for the purpose of completing a brownfield site remedial program.

(d) "Change of use" means the transfer of title to all or part of such brownfield site, the erection of any structure on such site, the creation of a park or other public or private recreational facility on such site, or any activity that is likely to disrupt or expose contamination or to increase direct human exposure; or any other conduct that will or may tend to significantly interfere with an ongoing or completed remedial program at such site and the continued ability to implement the engineering and institutional controls associated with such site.

(e) "Indirect ownership" means an ownership interest in an entity that has an ownership interest in an entity.

(f) "Newspaper notice" means 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.

(g) "Ownership" means the possession of equity in the capital, the stock or the profits of an entity.

(h) "Permanent cleanup" or "permanent remedy" means 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.

(i) "Requestor" means a person who has submitted an application to participate in the brownfield cleanup program whose eligibility has not yet been determined by the Department.

(j) "Substantial Interest" means ownership or indirect ownership of ten per centum or more.

§375-3.3 Eligibility.

(a) Eligible sites. Any real property that meets the requirements of a brownfield site as defined in ECL article 27, title 14.

(1) A brownfield site has two elements:

(i) there must be confirmed contamination on the property or a reasonable basis to believe that contamination is likely to be present on the property; and

(ii) there must be a reasonable basis to believe that the contamination or potential presence of contamination may be complicating the development, use or re-use of the property.

(2) In determining eligibility, the Department shall consider only contamination from on-site sources.

(3) In determining eligibility, the Department shall not consider:

(i) contamination of structures located at the site, due to stored materials, electrical appurtenances, lead paint or asbestos, etc.; or

(ii) material not constituting a "contaminant"as defined in subdivision 375-1.2(g) (e.g. construction and demolition debris, abandoned consumer goods or other solid waste present on the site).

(4) In determining eligibility, the Department may:

(i) determine that contiguous properties or parcels, or only a portion of any proposed site, meets the statutory definition of "brownfield site," and may approve contiguous properties or parcels or only a portion of a site for participation in the brownfield cleanup program;

(ii) request performance of a subsurface investigation (commonly referred to as a Phase II) in accordance with current applicable industry standards and guidance if the Department is unable to determine whether the site is a "brownfield site" based upon the information contained in the application.

(b) Ineligible sites. Any real property, which is:

(1) On the Registry as class 1 or class 2;

(2) Listed on the national priorities list established under the authority of 42 USC. section 9605;

(3) The subject of an ongoing enforcement action pursuant to ECL article 27, title 7 or title 9 involving solid or hazardous waste;

(4) Subject to an order for cleanup under article 12 of the navigation law ("oil spill prevention, control, and compensation") or ECL article 17, title 10 ("control of the bulk storage of petroleum"), except such property shall not be deemed ineligible if it is subject to a stipulation agreement; or

(5) Subject to any other on-going State or federal environmental enforcement action related to contamination at or emanating from the site.

(c) Ineligible parties. A person is ineligible for participation in the brownfield cleanup program if subject to:

(1) A pending action or proceeding relating to the proposed brownfield site in any civil or criminal court in any jurisdiction, or before any state or federal administrative agency or body, wherein the state or federal government seeks the investigation, removal, or remediation of contamination or penalties;

(2) An order providing for the investigation, removal, or remediation of contamination relating to the proposed brownfield site; or

(3) An outstanding claim by the New York environmental protection and spill compensation fund for cleanup and removal costs under article 12 of the navigation law; related to the site for which participation is sought.

§375-3.4 Applications.

(a) Application contents.

(1) Applications to participate in the brownfield cleanup program shall be submitted to the Department in such form and manner, and containing such information as the Department may require.

(2) Applications, including attachments, must be submitted both in hard copy and electronically.

(b) Complete applications.

(1) An application will be deemed complete when the Department determines that it contains sufficient information to allow the Department to determine eligibility and the current, intended and reasonably anticipated future land use of the site.

(2) The Department shall notify the requestor in writing within 10 days after the receipt of an application whether such application is complete. Such notification shall advise that the application is either:

(i) complete; or

(ii) incomplete, specifying the information that must be submitted or supplemented to make the application complete.

(3) If the Department determines that an application is incomplete, the Department may return the application.

(4) Upon the receipt of an application:

(i) the Department will notify the administrator of the New York environmental protection and spill compensation fund of the complete application; and

(ii) the administrator, as set forth in ECL 27-1407(4), shall notify the Department and requestor within 30 days of such notice of any outstanding claim by the New York environmental protection and spill compensation fund against the requestor.

(5) Upon the determination that an application is complete, the requestor must provide a:

(i) newspaper notice of the application and any associated work plans or reports submitted with the application, as set forth in subdivision 375-3.2(f); and

(ii) written notice of the application and any associated work plans or reports submitted with the application to the site contact list.

(6) Upon the determination that an application is complete, the Department will:

(i) commence a public comment period of 30 days, unless a remedial work plan is submitted with such application, in which event the public comment period shall be 45 days; and

(ii) place a notice in the environmental notice bulletin of the complete application

(c) Application approval. The Department shall use all best efforts to expeditiously notify the requestor if the application is accepted or rejected.

(1) For an application, or an application which includes a remedial investigation work plan. The Department will use all best efforts to reply within 45 days after receipt of an application, or 5 days after the close of the public comment period, whichever is later.

(2) For an application which includes a final investigation report or a draft remedial work plan. The Department will use all best efforts to reply within 60 days after receipt of an application, or 5 days after the close of the public comment period, whichever is later.

(d) Public interest consideration. The Department may reject a request to participate in the brownfield cleanup program, even if the real property meets the definition of "brownfield site," upon a determination that the public interest would not be served by granting such request. In making this determination, the Department shall consider, but is not limited to, the criteria set forth in ECL 27-1407(9).

§375-3.5 Brownfield Site Cleanup Agreements.

(a) In addition to such further terms and conditions as the Department may require in the brownfield site cleanup agreement, the brownfield site cleanup agreement shall include the description of the site boundaries and be deemed to include, and the applicant shall comply with, all of the provisions set forth in subdivision 375-1.5(b) and the following:

(1) Indemnification. Unless otherwise approved by the Department, a remedial party shall indemnify and hold the State, the trustee of the State's natural resources, and their representatives and employees harmless from any claim, suit, action, and cost of every name and description arising out of or resulting from the fulfillment or attempted fulfillment of the brownfield site cleanup agreement except for those claims, suits, actions, and costs arising from the gross negligence or willful or intentional misconduct by the State of New York, and/or its representatives and employees during the course of any activities conducted pursuant to the remedial program. The Department shall provide written notice no less than 30 days prior to commencing a lawsuit seeking indemnification.

(b) Termination of the agreement by the applicant. The applicant may terminate a brownfield site cleanup agreement at any time and for any reason, provided that:

(1) The applicant provides written notice to the Department at least 15 days in advance of the termination;

(2) The termination does not pose an immediate threat to public health or the environment; and

(3) At the time of termination, the site is in no worse condition, from an environmental and public health perspective, than before the applicant entered into the brownfield site cleanup agreement.

(c) Termination of the agreement by the Department. The Department may terminate the brownfield site cleanup agreement for cause, including, but not limited to, if the applicant fails to substantially comply with the agreement's terms and conditions, including, without limitation, the failure to initiate, proceed with, or complete the remedial program in accordance with its schedule.

(1) Prior to termination of an agreement by the Department, the Department shall:

(i) notify the applicant in writing of its intention to terminate the agreement and the reasons for the intended termination;

(ii) provide the applicant with a reasonable opportunity of not less than 30 days to correct deficiencies; and

(2) The brownfield site cleanup agreement shall be terminated 31 days after the effective date, as set forth in subdivision 375-1.11(e), of the Department's notice, unless the remedial party:

(i) seeks dispute resolution within 15 days of the effective date of the notice; or

(ii) cures the deficiency within the 30 day period after the effective date of the notice.

(3) Nothing herein shall preclude the Department from terminating an agreement in less than 30 days notice if the Department determines that information provided or certifications made by the applicant are materially inaccurate or incomplete. Prior to terminating an agreement pursuant to this paragraph, the Department shall give the applicant written notice, indicating the reason for the termination, and an opportunity to demonstrate that such information or certifications were materially accurate and complete.

(d) Termination by either the applicant or the Department does not affect the applicant's obligations to pay State costs and provide indemnification pursuant to subdivision 375-3.5(a)(1) until and including the date of termination.

(e) The Department shall not consider the applicant an operator of such brownfield site based solely upon execution or implementation of such brownfield site cleanup agreement for purposes of remediation liability.

(f) The applicant, effective upon the execution of the brownfield site cleanup agreement, shall be deemed to have waived any right such applicant has or may have to make a claim against the State of New York pursuant to article 12 of the navigation law with respect to the brownfield site, and a release of the New York environmental protection and spill compensation fund from any and all legal or equitable claims or causes of action that such applicant may have as a result of entering into a brownfield site cleanup agreement or fulfilling a brownfield site remedial program at such site.

§375-3.6 Work Plans and Reports.

(a) The provisions set forth in subpart 375-1.6 shall apply to remedial programs implemented under this subpart.

(b) The Department shall use all best efforts to expeditiously approve, modify, or reject a proposed work plan within 45 days from its receipt or within 15 days of the close of the comment period, whichever is later.

(c) The first work plan shall be submitted no later than 30 days after the effective date of the brownfield site cleanup agreement.

§375-3.7 Significant Threat and Registry Determinations.

(a) Significant threat.

(1) No later than 20 days after approval of the remedial investigation report, the Department shall determine if the site constitutes a significant threat to public health or the environment.

(2) In evaluating whether the presence of contamination at a site constitutes a significant threat, the Department shall consider the criteria outlined in subdivision 375-2.7(a). In considering the criteria, the Department shall evaluate the threat posed by both hazardous waste and petroleum at the site.

(3) Notice of the Department's determination shall be published by the applicant, as a fact sheet issued to the site contact list in accordance with section 375-3.10. Sites that have been determined by the Department to constitute a significant threat:

(i) may be the subject of a technical assistance grant in accordance with subdivision 375-3.10(c); and

(ii) must be remediated pursuant to a remedy selected by the Department from a Department-approved alternatives analysis prepared by the applicant.

(b) Registry determinations.

(1) The Department will, upon approval of an application as set forth in subdivision 375-3.4(c), defer its assessment or reassessment of a brownfield site's classification in the Registry in accordance with subdivision 375-2.7(c).

(2) Upon termination of the brownfield site cleanup agreement, the Department shall:

(i) if a significant threat determination has not been made, assess such site for a significant threat due to hazardous waste disposal and classify the site accordingly; or

(ii) if it has been determined that hazardous waste disposal constitutes a significant threat, the site will be classified on the Registry as set forth in subdivision 375-2.7(b).

§375-3.8 Remedial Program.

(a) The remedy shall be fully protective of public health and the environment including, but not limited to, groundwater according to its classification pursuant to ECL 17-0301, drinking water, surface water and air (including indoor air), sensitive populations, including children and ecological resources, including fish and wildlife. In addition, a remedy will be selected upon consideration of the following:

(1) A remedial program that achieves a permanent cleanup of a contaminated site, including the restoration of groundwater to its classified use, is preferred over a remedial program that does not do so;

(2) The selection of a remedy will take into account the current, intended, and reasonably anticipated future land uses of the site and its surroundings; and

(3) The risk presented by residual contamination as defined at ECL 27-1405.28 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, except:

(i) for remedies developed in accordance with paragraph(e)(4) below, with a cleanup level which exceeds the parameters in paragraph (3) above, the remedial party must demonstrate that such level would be protective of public health and the environment. This demonstration must be included in the alternatives analysis developed in accordance with subdivision (f) below; and

(ii) a cleanup level which exceeds the parameters in paragraph (3) above, may be approved by the Department under paragraph(e)(4) below, 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 State commissioner of health, that such level shall be protective of public health and the environment.

(b) Scope of investigation. Remedial investigations and final investigation reports must be completed in accordance with ECL 27-1411(1); ECL 27-1415(2) and this part.

(1) On-site contamination. Applicants must fully investigate and characterize the nature and extent of contamination on the brownfield site.

(2) Off-site contamination. Responsibility for off-site contamination is determined by the applicant's status:

(i) a volunteer shall perform a qualitative exposure assessment of the contamination that has migrated from the site in accordance with ECL 27-1415(2)(b) and Department guidance. For sites being addressed by a volunteer, the volunteer has no obligation to implement a remedy to address an off-site exposure identified by this assessment. The Department will:

(a) bring an enforcement action against any parties known or suspected to be responsible for contamination (other than such volunteer) at or emanating from the site according to applicable principles of statutory or common law liability within six months of the determination that a site poses a significant threat; or

(b) if such action cannot be brought, or does not result in the initiation of a remedial program by such party or parties at such site, use best efforts to begin a remedial program to perform the remediation of off-site contamination at such site within one year of the completion of such enforcement action or the completion of the volunteer's on-site remedial program, whichever is later; or

(ii) a participant shall fully investigate and characterize the nature and extent of contamination that has migrated or emanated from the site to off-site locations.

(3) The final remedial investigation report must demonstrate whether conditions at the site meet the applicable unrestricted use soil cleanup objectives set forth in Table 375-6.8(a) without remediation.

(4) Where the applicable unrestricted use soil cleanup objectives set forth in Table 375-6.8(a) will not be achieved, any determination that the requirements of the brownfield cleanup program have been met without the need for remediation must be supported by an alternatives analysis.

(c) Remedy selection.

(1) Applicants must, based upon the characterization of the nature and extent of contamination on-site and qualitative exposure assessment, select or propose a remedy for the contamination present on the site and address further contaminant migration from the site.

(2) Participants must also, based upon the characterization of the nature and extent of contamination that has migrated from the site, propose or select a remedy which addresses the off-site contamination.

(3) The Department will select, or approve, a remedy for a site after consideration of an alternatives analysis, including an evaluation consistent with subdivision 375-1.8(f), presented in, or made part of, a site specific remedial work plan in accordance with ECL section 27-1413(2).

(4) Selection of a remedy. For sites that the Department has determined:

(i) constitute a significant threat, the Department shall select the remedy from the Department-approved alternatives analysis; or

(ii) do not constitute a significant threat, the applicant may select the remedy from a Department-approved alternatives analysis.

(d) Application of the soil cleanup objectives.

(1) General. The Department may approve a remedial program that utilizes different tracks and soil cleanup objectives for different uses between different areas of a site, provided such areas can be defined and described in the environmental easement and the necessary institutional and engineering controls can be effectively imposed, implemented, operated, monitored and maintained in accordance with the Department approved site management plan.

(2) Cleanup objectives for other media. The exposure to public health and the environment resulting from contamination in all other environmental media shall be evaluated and cleanup objectives to eliminate or mitigate the exposure shall be proposed by the remedial party and any cleanup objectives approved by the Department for other media will be included in the alternatives analysis to ensure that the remedial program meets the requirements of this subdivision and subdivision 375-1.8.

(e) Cleanup tracks. For sites or portions of sites where the Department has determined that remediation is needed to meet the remedial program requirements, each remedial alternative that is developed and evaluated shall, in addition to all other requirements in this section and section 375-1.8(c), conform to the requirements of one of the following cleanup tracks.

(1) Track 1: Unrestricted use. The following provisions apply to a site, or portion thereof, being addressed pursuant to Track 1:

(i) the remedial program shall achieve a cleanup level that will allow the site to be used for any purpose without any restrictions on the use of the site as described in subparagraph 375-1.8(g)(1)(i);

(ii) the soil component of the remedial program shall achieve the unrestricted soil cleanup objectives as set forth in Table 375-6.8(a) for all soils above bedrock.

(iii) the remedial program shall not include the use of long-term institutional or engineering controls; provided, however, that a restriction on groundwater use may be included as a component of the remedial program if the applicant:

(a) is a volunteer; and

(b) has demonstrated to the Department's satisfaction that there has been a bulk reduction in groundwater contamination to asymptotic levels;

(iv) the remedial program may include the use of short-term employment of institutional or engineering controls provided:

(a) the remedial program includes an active treatment system, either ex-situ or in-situ, which will operate for, or require, no more than 5 years to meet the applicable contaminant-specific soil cleanup objectives or remedial goals established for other contaminated media;

(b) the remedial program requires the institutional control to assure the operation and integrity of the remedy, as well as to address potential human health exposures during this period; and

(c) the remedial program includes a provision for the applicant to implement an alternative remedy to meet the soil cleanup objectives in the event that the short-term institutional period is exceeded; and

(v) the Department may require the Applicant, or the Applicant may request, to develop a soil cleanup objective for a contaminant not included in Table 375-6.8(a) as set forth in section 375-6.9.

(2) Track 2: Restricted use with generic soil cleanup objectives. The following provisions apply to a site, or portion thereof, being addressed pursuant to Track 2:

(i) the remedial program may provide for the restriction of the use of the site as described in subparagraph 375-1.8(g)(2)(i);

(ii) the soil component of the remedial program shall achieve the lowest of the three applicable contaminant-specific soil cleanup objectives for all soils above bedrock, as set forth in sections 375-6.4, 375-6.5 and 375-6.6, except as provided in subparagraph (iii) below;

(iii) the requirement to achieve contaminant-specific soil cleanup objectives as set forth in Table 375-6.8(2) for all soils above bedrock shall not apply to soils at a depth greater than 15 feet below ground surface, provided that:

(a) the soils below 15 feet do not represent a source of contamination;

(b) the environmental easement for the site requires that any contaminated soils remaining at depth will be managed along with other site soils, pursuant to a site management plan;

(c) off-site groundwater does not exceed standards; and

(d) on-site groundwater use is restricted; and

(iv) the remedial program shall not use long-term institutional or engineering controls to achieve the restricted soil cleanup objectives. The use of short-term institutional or engineering controls is allowed, provided:

(a) the remedial program includes an active treatment system, either ex-situ or in-situ, which will operate for, or require, no more than 5 years to meet the applicable contaminant-specific soil cleanup objectives or remedial goals established;

(b) the remedial program requires the institutional control to assure the operation and integrity of the remedy, as well as to address potential human health exposures during this period; and

(c) the remedial program includes a provision for the applicant to implement an alternative remedy to meet the soil cleanup objectives in the event that the short-term institutional period is exceeded;

(v) the remedial program may include the use of long-term institutional or engineering controls to address contamination related to other media including, but not limited to groundwater and soil vapor; and

(vi) the Department may require the remedial party, or the remedial party may request, to develop a soil cleanup objective for a contaminant not included in Table 375-6.8(b) as set forth in section 375-6.9.

(3) Track 3: Restricted use with modified soil cleanup objectives. The remedial program for a site being addressed pursuant to Track 3 shall satisfy the provisions for a Track 2 remedial program; provided, however, the Department may approve the modification of one or more of the contaminant-specific soil cleanup objectives set forth in Table 375-6.8(b) based upon site-specific data. Any such modification shall be performed in accordance with section 375-6.9.

(4) Track 4: Restricted use with site-specific soil cleanup objectives. The following provisions apply to a site, or portion thereof, being addressed pursuant to Track 4:

(i) in developing the site-specific soil cleanup objectives, the Applicant may, solely or in combination:

(a) use the soil cleanup objectives, as set forth in subpart 375-6;

(b) develop or modify site specific soil cleanup objectives, as set forth at section 375-6.9; or

(c) propose site-specific soil cleanup objectives which are protective of public health and the environment;

(ii) the remedial program may include the use of long-term institutional or engineering controls to address all media; and

(iii) exposed surface soils in a Track 4 remedy will be addressed as follows:

(a) for residential use:

(1) the top two feet of all exposed surface soils which exceed the site background values for contaminants of concern and are not otherwise covered by the components of the development of the site (e.g. buildings, pavement), shall not exceed the applicable contaminant-specific soil cleanup objectives as set forth in subparagraph (2)(ii) above; and

(2) where it is necessary to utilize off-site soil to achieve this requirement, the soil brought to the site will satisfy the requirements of subdivision 375-6.7(d);

(b) for commercial use:

(1) the top one foot of all exposed surface soils which exceed the site background values for contaminants of concern and are not otherwise covered by the components of the development of the site (e.g. buildings, pavement), shall not exceed the applicable contaminant-specific soil cleanup objectives as set forth in subparagraph (2)(ii) above; and

(2) where it is necessary to utilize off-site soil to achieve this requirement, the soil brought to the site will satisfy the requirements of subdivision 375-6.7(d);

(c) for industrial use:

(1) the top one foot of all exposed surface soils which exceed the site background values for contaminants of concern and are not otherwise covered by the components of the development of the site (e.g. buildings, pavement), shall not exceed the applicable contaminant-specific soil cleanup objectives as set forth in subparagraph (2)(ii) above; and

(2) where it is necessary to utilize off-site soil to achieve this requirement, the soil brought to the site will satisfy the requirements of subdivision 375-6.7(d);

(5) All Tracks. For remedial programs under all Tracks, the threat to public health and the environment resulting from contamination in environmental media other than soil shall be evaluated in the development of remedial alternatives and addressed in the alternatives analysis to ensure that the remedial program meets the requirements of ECL 27-1415(1), subdivisions 375-3.8(a) and (f), and section 375-6.7.

(f) Alternatives analysis. An alternatives analysis evaluates each remedial alternative developed for a brownfield site, using the selection factors set forth in subdivision 375-1.8(f).

(1) An alternatives analysis must be prepared for each site, or operable unit of a site, unless:

(i) the Department has selected a remedy for the site in a record of decision under subpart 375-2 or subpart 375-4 prior to the approval of the application for participation;

(ii) the remedy proposed meets the requirements of Track 1; or,

(iii) the Department has approved the use of a presumptive remedy proposed from a Department approved list of presumptive remedies.

(2) Contents of an alternatives analysis. Each alternatives analysis must include, but is not limited to:

(i) a description of each alternative evaluated in the analysis. Alternatives must be developed and evaluated which address:

(a) on-site contamination if the applicant is a volunteer; and

(b) on-site and off-site contamination if the applicant is a participant;

(ii) a discussion of how each alternative would achieve the requirements of the remedial program, including the Track-specific requirements;

(iii) an analysis of each alternative against the remedy selection factors set forth in subdivision 375-1.8(f) followed by a comparison of this evaluation to any other alternatives under consideration;

(iv) an evaluation of the reliability and viability of the long-term implementation, maintenance, monitoring, and enforcement of any proposed institutional or engineering controls set forth in subdivision 375-1.8(h) required by ECL 27-1415(7)(a);

(v) if applicable, an evaluation of feasible remedial alternatives that can achieve groundwater plume stabilization in accordance with subdivision 375-1.8(d);

(vi) an identification of the alternative preferred by the applicant for selection;

(vii) a summary of the proposed remedy and basis for concluding that the proposed remedy represents the best alternative among those considered; and

(viii) other information required by the Department.

(3) Alternatives to be evaluated. The alternatives analysis proposing a remediation:

(i) pursuant to Track 1, shall develop and evaluate at least one remedial alternative capable of achieving the requirements of paragraph (e)(1) above; or

(ii) pursuant to a Track other than Track 1, shall develop and evaluate two or more remedial alternatives, as follows:

(a) at least one unrestricted alternative that meets the requirements of Track 1 as set forth in paragraph (e)(1) above, unless a presumptive remedy is selected from a Department approved list;

(b) such other alternatives which may be developed by the applicant for the proposed use of the site;

(c) for sites determined by the Department to constitute a significant threat, such additional alternatives as the Department may require; and

(d) for sites determined by the Department not to constitute a significant threat, the Department may require a Track 2 evaluation if one has not already been considered pursuant to subparagraph (i) or clauses (ii)(2)-(4) after considering the following factors:

(1) the degree to which the remedy selection criteria would be better satisfied by a Track 2 cleanup;

(2) the degree of impact a Track 2 cleanup would have on the applicant's ability to successfully cleanup and/or redevelop the property;

(3) the benefit to the environment to be realized by the expeditious remediation of the property; and

(4) the economic benefit to the State to be realized by the expeditious remediation of the property.

(4) Plume stabilization. In developing remedies for a site where plume stabilization in accordance with subdivision 375-1.8(d) is a necessary component of the remedy where such plume is emanating from an on-site source.

(i) A participant shall address, to the extent feasible, the on-site and off-site plume. This requirement includes such actions to maintain and monitor any stabilization of the plume.

(ii) A volunteer shall address, to the extent feasible, the on-site plume and prevent the further migration of any plume off-site at the site boundary. This requirement includes such actions to maintain and monitor any stabilization of the plume

(g) Remedial work plan.

(1) The Department will issue a decision document describing the remedy for a site, unless it has previously issued a record of decision under subpart 375-2 or subpart 375-4 prior to the approval of an application to this program. The remedial work plan shall implement the decision document or record of decision.

(2) A remedial work plan must be prepared in accordance with ECL 27-1411 and 27-1415 and must provide for the development and implementation of the remedy, selected as set forth in paragraph 375- 3.8(c)(4), for:

(i) on-site contamination if the applicant is a volunteer; and

(ii) on-site and off-site contamination if the applicant is a participant.

(3) A remedial work plan must include at a minimum:

(i) a summary of the site history and the nature and extent of contamination;

(ii) remedial action objectives;

(iii) a summary of the current, intended, and reasonably anticipated future use of the site;

(iv) identification of the cleanup track to be used for remediation of the site as described in subdivision (e) above;

(v) identification and evaluation of any and all institutional or engineering controls to be employed as part of the site remedy as required pursuant to subdivision 375-1.8(h), if applicable, and subparagraph (f)(2)(iv) above;

(vi) an alternatives analysis as set forth in subdivision (f) above; and

(vii) other information as required by the Department.

(4) Where a remedial work plan will also serve as the remedial design document for a site it shall:

(i) be certified by a professional engineer;

(ii) include, but not be limited to, the following:

(a) plans and specifications sufficient to construct the remedy;

(b) a site health and safety plan;

(c) a community health and safety plan; and

(d) a quality assurance and quality controls plans for sampling, analysis, and construction; and

(iii) a site management plan, if the remedy includes any institutional or engineering controls.

(h) Institutional and engineering controls.

(1) Institutional and engineering controls can be included as part of a remedial work plan provided there is compliance with subdivision 375-1.8(h) and they are evaluated in the alternatives analysis.

(2) At nonsignificant threat sites where contaminants in groundwater at the site boundary contravene drinking water standards, the institutional and engineering control certification shall:

(i) 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;

(ii) every five years the remedial party or owner shall certify that the assumptions made in the qualitative exposure assessment remain valid; and

(iii) the requirement to provide such certifications may be terminated as set forth in ECL 27-1415(7)(c).

§375-3.9 Certificate of Completion.

(a) Notwithstanding the provisions for issuance of a certificate of completion set forth in section 375-1.9, the Department shall not issue a certificate if the applicant is identified as subject to an outstanding claim by the New York environmental protection and spill compensation fund under article 12 of the navigation law for the brownfield site, as set forth at subparagraph 375-3.4(b)(4)(ii).

(b) Liability limitation. Subsequent to the issuance of a certificate of completion, the applicant shall be entitled to the liability limitation protections set forth at ECL 27-1421, subject to the terms and conditions stated therein.

(c) Liability limitation reopener provisions.

(1) If the Department seeks to exercise its rights reserved pursuant to ECL 27-1421(2), it shall provide notice to the certificate holder, as set forth in subdivision 375-1.9(e).

(2) The certificate holder shall have 30 days after the effective date of the notice within which to cure the deficiency or seek dispute resolution. If the certificate holder or current title owner does not cure the deficiency or seek dispute resolution within such 30-day period, the liability protections shall be deemed modified or vacated 31 days after effective date of the Department=s notice.

(d) Modification or revocation of the certificate of completion.

(1) If the Department seeks to modify or revoke the certificate of completion, it shall provide notice to the certificate holder as set forth in subdivision 375-1.9(e).

(2) The certificate holder shall have 30 days after the effective date of the notice within which to cure the deficiency or seek a hearing. If the certificate holder or current title owner does not cure the deficiency or seek a hearing within such 30 day period, the liability protections shall be modified or vacated 31 days after the effective date of the Department's notice.

(e) Tax credits. The certificate of completion entitles the applicant to file for brownfield tax credits under articles 21, 22 and 23 of the tax law. Only those costs incurred on or after the effective date of the brownfield site cleanup agreement are eligible for consideration for credits.

§375-3.10 Citizen Participation.

(a) Upon the Department's determination that an application is complete:

(1) A notification of the commencement of a 30-day comment period on the request to participate must be placed in the environmental notice bulletin by the Department; and

(2) Newspaper notices, as defined in ECL 27-1405(22), must be prepared by the requestor and, subject to Department review and approval, published in a local newspaper and mailed to the brownfield site contact list.

(b) Citizen participation plans.

(1) Applicants shall prepare a site-specific citizen participation plan in accordance with ECL 27-1417(2) and section 375-1.10. This plan shall include provision for all notices, fact sheets and comment periods for remedial program milestones required by ECL 27-1417(3) and section 375-1.10. The citizen participation plan must be submitted to the Department for approval. The remedial investigation work plan will not be approved until such time as the citizen participation plan has been approved.

(2) Unless otherwise determined by the Department, all notices and fact sheets for the required milestones shall be prepared by the applicant and approved by the Department prior to issuance.

(i) Department approved notices and fact sheets shall be distributed by the applicant to all parties on the brownfield site contact list.

(ii) Within 5 days of mailing such notices and fact sheets the applicant shall provide proof of compliance with the notice requirements on a form approved by the Department.

(iii) All notices and facts sheets must be included in the document repository. Notices and facts sheets can be combined with the approval of the Department.

(c) Technical assistance grants may be made to qualifying community groups for a brownfield site where the Department has determined such site constitutes a significant threat.

(1) Grants may be used:

(i) to obtain technical assistance in interpreting information with regard to the nature of the hazard posed by contaminants located at or emanating from a qualifying site;

(ii) to hire health and safety experts to advise affected residents on any health assessments; and

(iii) for the training and education of interested affected community members to enable them to more effectively participate in the remedy selection process.

(2) Grants may not be used for:

(i) collecting field sampling data;

(ii) political activity; or

(iii) lobbying legislative bodies.

(3) Qualifying community groups. A community group must meet the following criteria to be eligible:

(i) be either a domestic not-for-profit corporation as defined at NPCL 102(a)(5) or an authorized foreign not-for-profit corporation as defined at NPCL 102(a)(7);

(ii) be exempt from taxation under section 501(c)(3) of the internal revenue code. In determining this criterion, the Department may consider any evidence which could be considered by a court pursuant to CPLR 3211(a)(11);

(iii) be affected by a remedial program for such site;

(iv) not be sustained by or controlled by or affiliated with any person that is responsible for such site according to applicable principles of statutory or common law liability; and

(v) demonstrate that its membership resides in the community and represents the interests of the community affected by such site. In determining this criterion, the Department may consider any evidence that its members= health, economic well-being or enjoyment of the environment are potentially affected by such site.

(4) Grant amounts. The total amount of all technical assistance grants awarded for a particular brownfield site is limited to $50,000. The amount of each technical assistance grant:

(i) will be determined by the Department based upon the scope of work in the application; and

(ii) the grant recipient may request increases to its grant, up to the maximum $50,000 per site. The request should be in writing and include appropriate justification and a budget.

(5) Grant applications. A community group desiring to obtain a grant shall submit an application to the Department in such form and manner, and containing such information, as the Department may require. A complete application consists of a:

(i) completed application form containing such information as the Department may prescribe; and

(ii) a certification by a responsible officer of the corporation, in a form provided by the Department, which certifies at a minimum that:

(a) the corporation is not sustained by or controlled by or affiliated with any person that is responsible for the site according to applicable principles of statutory or common law liability;

(b) all statements made for the purpose of obtaining a grant either are set out in full on this application or are set out in full in exhibits attached to this application and incorporated by reference in the application;

(c) all information included in this application, including attachments, is accurate to the best of the responsible officer's knowledge;

(d) that the undersigned is authorized to execute this application for the corporation; and

(e) acknowledges that a false statement made in the certification is punishable as a class "A" misdemeanor pursuant to section 210.45 of the penal law.

(6) A technical assistance grant shall be made by the Department pursuant to a State assistance contract between the Department and the grant recipient as set forth in subdivision 375-2.5(c). The State assistance contract shall contain such terms and conditions as the Commissioner may deem to be appropriate. All such grants are recoverable State costs subject to recovery from responsible parties.

(7) The Department may require a responsible party, as defined in subdivision 375-2.2(i), to provide a technical assistance grant directly to a qualifying community group. Such responsible party shall provide for a grant consistent with the requirements of this section within a time frame directed by the Department.

§375-3.11 Miscellaneous.

(a) Prohibitions. No person to whom a request has been made pursuant to ECL 27-1431 shall fail to comply therewith.

(b) State environmental quality review act applicability.

(1) Remedy selection and implementation of remedial actions under Department-approved work plans pursuant to ECL article 27, title 14 are not subject to review pursuant to ECL article 8 and its implementing regulation (6 NYCRR Part 617), provided that design and implementation of the remedy do not:

(i) commit the Department or any other agency to specific future uses or actions; and

(ii) prevent evaluation of a reasonable range of alternative future uses of or actions on the remedial site.

(2) In the event that the use of the site, as set forth in the remedy selection document for the site, changes during the implementation of the remedial program, the Department may make a new determination whether such remedial action remains protective of public health and the environment and, if the Department makes such a determination, it will require that the remedial action be modified to be protective of public health and the environment.

(3) The exemption set forth in this subdivision is in addition to, and not in place of, other exemptions to that apply pursuant to Parts 617 or 618 of this title (e.g. the enforcement exemption).

(c) State funding.

(1) The Department may, in accordance with ECL 27-1411(5), expend moneys from the hazardous waste remedial fund established pursuant to SFL 97-b and/or from the New York environmental protection and spill compensation fund established pursuant to NL 179, as appropriate, to pay, in whole or in part, the State costs incurred in the development and implementation of a remedial program for off-site contamination at a brownfield site where:

(i) the applicant is a volunteer; and

(ii) the site presents a significant threat.

(2) All State costs incurred pursuant to paragraph (c)(1) above may be recovered from any person responsible according to applicable principles of statutory or common law liability other than the volunteer.

§375-3.12 Reserved.