Subpart 375-2: Inactive Hazardous Waste Disposal Site Remedial 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]
- 375-2.1 Purpose; applicability
- 375-2.2 Definitions
- 375-2.3 Municipal eligibility for State assistance
- 375-2.4 Applications for municipal assistance
- 375-2.5 Orders and State assistance contracts
- 375-2.6 Reserved
- 375-2.7 Significant threat and Registry determinations
- 375-2.8 Remedial program
- 375-2.9 Certificate of completion
- 375-2.10 Citizen participation
- 375-2.11 Miscellaneous
- 375-2.12 Reserved
§375-2.1 Purpose; applicability
(a) This subpart applies to the development and implementation of remedial programs at inactive hazardous waste disposal sites pursuant to ECL 27-1301, et seq. This subpart addresses requirements in addition to those requirements identified in subpart 375-1.
As used in this subpart, the following terms have the following meanings:
(a) "Change of use" means the erection of any structure on a site, the paving of a site for use as a roadway or parking lot, the creation of a park or other recreational facility on a site, any activity that is likely to disrupt or expose contamination or increase direct human or environmental exposure, or any other conduct that will or may tend to prevent or significantly interfere with a proposed, ongoing, or completed remedial program.
(b) "Contaminant" means hazardous waste as defined in subdivision 375-1.2(w), excluding petroleum as defined in subdivision 375-1.2(ah).
(c) "Contaminated" or "contamination" means the presence of a contaminant, as defined in (b) above, in any environmental media, including soil, surface water, sediment, groundwater, soil vapor, ambient air or indoor air.
(d) "Disposal" means the abandonment, discharge, deposit, injection, dumping, spilling, leaking or placing of contaminants so that such contaminant, or any related constituent thereof, may enter the environment. Disposal also means the thermal destruction of a contaminant and the burning of a contaminant as fuel for the purpose of recovering usable energy.
(e) "Environmental damage" means any injury to the environment, any impairment of its use by flora or fauna and any adverse public health impact.
(f) "Feasibility study" means a study undertaken to develop and evaluate alternatives for remediation, emphasizing data analysis. The remedial investigation data are used to define the objectives of the site remedial program, to develop remedial action alternatives, and to undertake an initial screening and detailed analysis of the alternatives. The term also refers to a report that describes the results of the study.
(g) "Municipality" means a city, county, town, village, public benefit corporation or school district or an improvement district within a city, county, town, or village, or Indian tribe residing within the State, or any combination thereof.
(h) "Release" means any pumping, pouring, emitting, emptying, or leaching, directly or indirectly, of a substance so that the substance or any related constituent thereof, or any degradation product of such a substance or of a related constituent thereof, may enter the environment, or the disposal of any substance.
(i) "Responsible party" means any of the following, subject to the defenses, exemptions, and/or limitations set forth at ECL 27-1323:
(1) Any person who currently owns or operates a site or any portion thereof;
(2) Any person who owned or operated a site or any portion thereof at the time of disposal of the contaminant;
(3) Any person who generated any contaminants disposed at a site;
(4) Any person who transported any contaminants to a site selected by such person;
(5) Any person who disposed of any contaminants at a site;
(6) Any person who arranged for:
(i) the transportation of any contaminants to a site; or,
(ii) the disposal of any contaminants at a site; and
(7) Any other person who is responsible according to the applicable principles of statutory or common-law liability pursuant to ECL 27-1313(4) and/or CERCLA.
(j) For the purposes of this subpart, the terms "Non-aqueous phase liquid" or "NAPL", "Disposal", "Emergency", "Engineering control", "Grossly contaminated media", "Off-site contamination", "On-site contamination", "Operable unit", "Presumptive remedy", "Remedial investigation", "Remedial program", and "Source area" found in section 375-1.2 shall have substituted in their definition the terms "contaminant", "contamination" and "contaminated" as defined above in subdivisions 375-2.2(b) and (c).
§375-2.3 Municipal eligibility for State assistance
(a) The Commissioner may provide State assistance to a municipality under ECL 27-1313(5)(g), up to 75 percent of eligible costs as determined by subdivisions (e) and (f) below, subject to the conditions and limitations of subdivisions (b), (c) and (d) below.
(b) Eligible sites. A site must be a class 1 or class 2 site on the Registry due to disposal of a contaminant.
(c) Eligible municipality. A municipality must meet the following criteria to be eligible:
(1) It must be a responsible party only by reason of being or having been the owner or operator of the site; and
(2) It must enter into an order described in subdivision 375-2.5(a); or another order acceptable to the Department, whereby the municipality is obligated to develop and implement a site remedial program subject to the approval and supervision of the Department; and such order must be entered into before submitting an application for State assistance.
(d) Municipal responsibilities. The municipality must:
(1) Take all reasonable steps to obtain indemnification or a commitment to indemnify from any insurance carriers; for purposes hereof, the phrase, "all reasonable steps to obtain indemnification" means:
(i) the diligent conduct of a search to identify all insurers that provided liability coverage for the municipality at any relevant time by reviews of its own records;
(ii) the diligent conduct of negotiations with all identified insurers. Negotiations have been conducted diligently with a particular insurer when the municipality extend an invitation to negotiate concerning indemnification under its policy, and the insurer:
(a) does not respond to the municipality's invitation;
(b) responds to it by refusing to negotiate;
(c) starts negotiations and thereafter discontinues same;
(d) starts negotiations and refuses to indemnify under the policy within nine months after the start of negotiations; and
(iii) when reasonable, the commencement and diligent prosecution of a civil judicial action to obtain appropriate relief from any identified insurer;
(2) Make all reasonable efforts to secure voluntary agreement by other responsible parties to perform or pay for the performance of the remedial program for the site. For purposes of this section, the phrase "all reasonable efforts to secure voluntary agreement" means:
(i) the diligent conduct of a search to identify responsible parties by a method or methods appropriate to the circumstances of the particular site including, but not limited to, reviews of real property records, regulatory files of appropriate government agencies, publicly available financial information, and private business records obtained under ECL 27-0915; ECL 27-1307; and/or ECL 27-1309; and
(ii) the selection of a person responsible for the site that the municipality determines (and in which determination the Department concurs) to be an appropriate party with which to negotiate; and
(iii) diligent conduct of negotiations with that potentially responsible party.
(3) Conduct diligent negotiations with responsible parties. Negotiations have been conducted diligently with that particular responsible party when:
(i) the municipality extends an offer to negotiate an agreement to perform the municipality's obligation under an order, and that party
(a) does not respond to the municipality's offer, or
(b) responds to it by refusing to negotiate, or
(c) starts negotiations and thereafter discontinues same, or
(d) starts negotiations and does not agree to undertake the objective of the negotiations within six months after the commencement of negotiations (or such longer period as the Department determines will be promotive of attaining the objective of the negotiations); or
(e) demonstrates to the municipality's satisfaction that it is unable to pay for the objective of the negotiation; and
(ii) the Department concurs in the reasonableness of the municipality's actions.
(4) Assist the Department and other State agencies in compelling responsible parties to contribute to the cost of the remedial program, such assistance encompassing, at a minimum, the provision of all information which the municipality has or acquires during the course of project implementation, and thereafter, related to the identification of the responsible parties for the contaminants disposed at, or released from, the site.
(5) Cooperate with the State in its cost recovery efforts, including:
(i) the development of evidence or legal argument with respect to:
(a) the equitable allocation of costs to the municipality;
(b) the liability for, and equitable allocation of costs to, other potentially responsible parties;
(c) the implementation of the remedial program and the recoverability of particular costs incurred at the site; and
(d) any other issues likely to substantially affect the State's recovery of costs; and
(ii) negotiation of the settlement (if applicable).
(e) Eligible costs. These costs are eligible for State assistance:
(1) The non-federal share of the approved site remedial program cost less amounts collected from responsible parties or otherwise as contemplated by ECL article 27, title 13 including reasonable costs for engineering and architectural services, plans and specifications, and consultant and legal services.
(2) The cost of other activities directly incidental to the conduct of an approved site remedial program.
(f) Ineligible costs. The following costs are not eligible for State assistance. Costs incurred:
(1) Before the start date identified in the State assistance contract, including those to prepare and submit the State assistance application and those to procure and retain legal, engineering, and other services to undertake the project;
(2) To implement site management at the site after construction of the Department-approved remedy;
(3) To redevelop the site that are not necessary to remediate the site;
(4) That are reimbursed by, or recovered from, any other responsible party or insurance carrier or the federal government;
(5) Outside the scope of, or in violation of, the order and/or State assistance contract;
(6) In violation of applicable statutes or regulations; and
(7) For which appropriations are not available.
§375-2.4 Applications for municipal assistance
(a) An application by a municipality to implement a remedial program with State assistance shall be submitted to the Department in such form and manner, and containing such information as the Department may require. One copy of the application form and any attachments shall be submitted in an electronic format acceptable to the Department.
(b) The scope of the application must be for the full remedial program for the site.
(c) The application shall be signed by the individual authorized to sign the application on behalf of the municipality and include the following certifications:
(1) The applicant has not generated, transported or disposed of, arranged for, or caused the generation, transportation or disposal of any contaminants on that site;
(2) Has not undertaken, and will not undertake, any indemnification obligation respecting a party responsible under law for the remediation of the site; and
(3) All statements made for the purpose of obtaining State assistance for the proposed project either are set out in full on this application, or are set out in full in exhibits attached to this application and incorporated by this reference.
§375-2.5 Orders and State assistance contracts
(1) The Commissioner may order a responsible party to develop and implement a remedial program for a site after providing notice and an opportunity for hearing to the alleged responsible party and determining such person is a responsible party. A hearing required by ECL 27-1313(4) shall be conducted pursuant to the procedures of Part 622 of this title; provided that anything in said Part 622 of this title to the contrary notwithstanding, there shall be no third-party, counterclaim, or cross-claim practice.
(2) The Commissioner may order a responsible party to develop and implement a remedial program for a site upon the consent of such responsible party without providing notice and an opportunity for hearing.
(3) The order for a remedial program developed as set forth in this subdivision shall include all provisions set forth in subdivision 375-1.5(b) and also include the following provision:
(i) 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 remedial program 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) State assistance contracts for municipalities.
(1) Upon approval by the Department of an application for assistance under section 375-2.3, the municipality must enter into a State assistance contract with the Department. The State assistance contract will be subject to approval by the State comptroller and, as to form, by the attorney general, and:
(i) in addition to such further terms and conditions as the Department may require in the State assistance contract, the State assistance contract shall be deemed to include, and the municipality shall comply with, all of the provisions set forth in paragraphs 375-1.5(b) (1) and (4) and 375-4.5(b)(9);
(ii) include the terms and conditions set forth in paragraphs (2) through 6) below; and
(iii) shall be binding upon the municipality.
(2) The municipality must not enter into, or renew, a lease concerning, nor transfer title to, the site, or any portion of it, until the municipality binds itself and its lessees and its successors in title, to the following:
(i) the site is remediated under Department oversight in accordance with the Department's record of decision and that the site, or any subdivided parcel within the site, is not used for any purpose until it is so remediated, except that the site may continue to be used for the purpose for which it is being used as of the effective date of the State assistance contract, if the Department determines that the existing state of contamination does not pose a risk sufficient to prohibit such use from continuing, giving due regard for public health and environmental protection;
(ii) if, before the Department issues the certificate of completion, the municipality, or a successor in title, wishes to transfer title to or subdivide the site into separate parcels, it may do so after it commits in a document, approved by the Department in form and substance, to remediate all of the site in accordance with the Department's record of decision, within such time period as the Department may require;
(iii) the site will not be used for any purpose requiring a level of contamination lower than that serving as the basis for the remediation identified in the record of decision; and
(iv) any engineering and/or institutional controls, that the Department may deem necessary to allow the contemplated use of the site to proceed will be imposed, implemented, operated, monitored and maintained in accordance with the Department approved site management plan. The municipality:
(a) will develop and submit to the Department for its review and approval, a site management plan to ensure that such controls are continually maintained in the manner the Department may require; and
(b) are prohibited, as are its lessees and successors in title, from challenging the imposition or continuance of such controls. The failure to implement the approved remedial work plan and site management plan or to maintain such controls shall constitute a violation of the State assistance contract;
(3) If any responsible party payments and/or other responsible party consideration become available to the municipality which were not included when the State share was calculated for the State assistance contract, the municipality shall immediately notify the Department of such availability and the Department shall recalculate the amount of the State share. The Department has the option of either reducing the contract amount if the project is ongoing or requesting reimbursement of the amount owed to the State, for deposit in an appropriate account. The State will calculate the amount owed by the municipality based on the recalculated State assistance amount and the amount the State has reimbursed the municipality as of the date the recalculation is made. If the municipality fails to make such repayment within 60 days of notification, the Department may take measures provided by statute relating to the recovery of State assistance. The municipality will immediately notify the Department in writing of its receipt of reimbursement from other sources for any expenditure for which State assistance may be provided under the State assistance contract.
(4) The Department will suspend payments under the State assistance contract until the municipality has cured the failure, if the Commissioner determines that the municipality:
(i) has failed to comply with any of the requirements of applicable State or federal laws and regulations;
(ii) has failed to comply with any of the requirements of the State assistance contract;
(iii) without good cause, as determined by the Department, the municipality has failed to initiate, proceed with, or complete the Department-approved project in accordance with its schedule; or
(iv) has changed the Department approved project or any portion thereof without the Department's prior written approval.
(5) The Department may terminate the State assistance contract if the failure, as set forth in paragraph (4) above, is not cured in a reasonable time.
(6) While the municipality may make efforts to recover response costs from potentially responsible parties, it must provide the Department with timely advance written notice of any negotiations, proposed agreements, proposed settlements or legal action by which recovery is sought and must not commence such legal action nor enter into any such proposed agreement or settlement without prior written Department approval.
(7) For purposes of a State assistance contract, the cost of an approved project shall include appraisal, surveying, engineering and architectural services, plans and specifications, consultant and legal services, construction and other direct expenses incident to such project less any federal or State funds, other than those provided pursuant to this article, for such project received or to be received.
(c) State assistance contract for technical assistance grants.
(1) The State assistance contract for technical assistance grants shall contain such terms and conditions as the Commissioner may deem to be appropriate.
(2) The terms and conditions set forth in subdivision 375-1.5(b) and subdivision (b) above will not apply to a State assistance contract for technical assistance grants.
§375-2.7 Significant threat and Registry determinations
(a) Significant threat.
(1) The Commissioner may find that contaminants disposed at a site constitute a significant threat to public health or the environment if, after reviewing the available evidence and considering the factors the Commissioner deems relevant set forth in this section, the Commissioner determines that the contaminants disposed at the site or coming from the site result in, or are reasonably foreseeable to result in, any of the following:
(i) a significant adverse impact upon endangered species, threatened species, or species of concern, as defined in section 182.2 of this title; or
(ii) a significant adverse impact upon protected streams and navigable waters as defined in section 608.1 of this title, or tidal wetlands as defined in subdivision 661.4(hh) of this title, or freshwater wetlands as defined in subdivision 663.2(p) of this title or significant fish and wildlife habitat areas as defined in subdivision 602.5(a) of 19 NYCRR; or
(iii) a bioaccumulation of contaminants in flora or fauna to a level that causes, or that materially contributes to, significant adverse ecotoxicological effects in flora or fauna or leads, or materially contributes, to the need to recommend that human consumption be limited; or
(iv) contaminant levels that cause significant adverse acute or chronic effects to fish, shellfish, crustacea, and wildlife; or
(v) a significant adverse impact to the environment due to a fire, spill, explosion, or similar incident or a reaction that generates toxic gases, vapors, fumes, mists, or dusts; or
(vi) a significant adverse impact to public health, where the site is near residences, recreational facilities, public buildings or property, school facilities, places of work or worship, or other areas where individuals or water supplies may be present, and the New York State Department of Health has determined that the presence of contaminants on such site pose a significantly increased risk to the public health.
(2) The Commissioner may also find that contaminants disposed at a site constitute a significant threat to the environment if, after reviewing the available evidence and considering the factors the Commissioner deems relevant set forth in this subdivision, the Commissioner determines that the contaminants disposed at the site or coming from the site result in, or are reasonably foreseeable to result in, significant environmental damage.
(3) In making a finding under this subdivision as to whether a significant threat to the environment exists, the Commissioner may take into account any or all of the following factors, as may be appropriate under the circumstances of the particular situation:
(i) all data and information related to the factors, individually or in combination, set forth in paragraph (a)(1) above;
(ii) the duration, areal extent, or magnitude of severity of the environmental damage that may result from a release of contaminants;
(iii) type, mobility, toxicity, quantity, bioaccumulation, and persistence of contaminants present at the site;
(iv) manner of disposal of the contaminants;
(v) nature of soils and bedrock at and near the site;
(vi) groundwater hydrology at and near the site;
(vii) location, nature, and size of surface waters at and near the site;
(viii) levels of contaminants in groundwater, surface water, sediments, air, soil vapor and soils at and near the site and areas known to be directly affected or contaminated by waste from the site, including, but not limited to, contravention of: surface water and groundwater quality standards set forth in Part 703 of this title and drinking water standards set forth in subpart 5-1 and Part 170 of 10 NYCRR;
(ix) proximity of the site to residences, recreational facilities, public buildings or property, school facilities, places of work or worship, and other areas where individuals may be present;
(x) the extent to which contaminants and/or contaminant constituents have migrated or are reasonably anticipated to migrate from the site;
(xi) the proximity of the site to areas of critical environmental concern (such as, wetlands or aquifers);
(xii) the potential for wildlife or aquatic life exposure that could cause an increase in morbidity or mortality of same;
(xiii) the integrity of the mechanism, if any, that may be containing the contaminants to assess the probability of a release of the contaminants into the environment; and
(xiv) the climatic and weather conditions at and in the vicinity of the site.
(4) The mere presence of contaminants at a site or in the environment is not a sufficient basis for a finding that contaminants disposed at a site constitute a significant threat to the environment.
(5) In making a finding under ECL 27-1313(3)(b)(ii) that a significant threat to the environment presents an imminent danger of causing irreversible or irreparable environmental damage, the Commissioner must first find that:
(i) the contaminants disposed at the site constitute a significant threat to the environment;
(ii) there is insufficient time within which to start and complete all administrative procedures to establish an identified responsible party's liability to devise and implement a program for the site, and to start and complete all measures necessary to contain, alleviate, or end the threat to life or health or to the environment sought to be averted, including (if the Department, in its discretion, believes it to be cost-effective) the development and implementation of a remedial program; and
(iii) the nature of the significant environmental damage reasonably foreseeable to occur if no action were to be taken to avert a release or further release of contaminants into the environment is such, with respect to the component of the environment reasonably foreseeable to be adversely affected, either as to be of long duration; or that the component of the environment reasonably foreseeable to be affected cannot be fully restored to pre-release conditions.
(6) In making a finding under ECL 27-1313(3)(b)(ii) that a significant threat to the environment is causing irreversible or irreparable environmental damage, the Commissioner must first find that:
(i) significant environmental damage has occurred; and
(ii) the nature of that environmental damage is such, with respect to the component of the environment adversely affected, either as to be of long duration; or that the component of the environment affected cannot be fully restored to pre-release conditions.
(7) In making a finding under ECL 27-1313(3)(b)(iii) that the significant threat to the environment posed by contaminants disposed at a site makes it prejudicial to the public interest to delay action until a proceeding can be held as set forth in ECL article 27, title 13, the Commissioner must determine either that further environmental damage is reasonably anticipated to result during such a hearing; or that, if environmental damage has not yet occurred, such is reasonably anticipated to occur during the pendency of the proceeding.
(b) Site classification.
(1) The Department shall maintain and make available for public inspection a registry of inactive hazardous waste disposal sites, in accordance with ECL 27-1305. The Department will include information on such Registry, including but not limited to, the site description, land use, acreage, and contaminants disposed.
(2) The Registry maintained by the Department must include all sites, except as provided in subdivision (c) below, known to the Department at which contaminants, as defined in subdivision 375-2.2(b) have been confirmed to have been disposed in an amount that:
(i) presently constitutes a significant threat to public health or the environment, as described in subdivision (a) above; or
(ii) is reasonably foreseeable to constitute a significant threat to public health or the environment.
(3) The Department will, based upon the information available, classify sites according to the following criteria:
(i) a class "1" site is one at which:
(a) contamination constitutes a significant threat to public health or the environment; and
(b) the significant threat to public health or environment is causing, or presents an imminent danger of causing, either irreversible or irreparable damage to the environment;
(ii) a class "2" site is one at which contamination constitutes a significant threat to public health or the environment, as described in subdivision (a) above;
(iii) a class "3" site is one at which contamination does not presently, constitute a significant threat to public health or the environment, as described in subdivision (a) above;
(iv) a class "4" site is one that has been properly closed but that requires continued site management, consisting of operation, maintenance, and monitoring;
(v) a class "5" site is one that has been properly closed and requires no further action.
(4) The Department will investigate such areas or structures which it has reason to believe may need to be included in the Registry and may establish an administrative category for such areas or structures.
(5) The Registry is informational in nature, and a site is not required to be on the Registry to confer jurisdiction for action by the Department according to statute or its implementing regulations.
(6) When final decisions concerning an initial site listing or classification are made, the Department shall provide notice:
(i) to the owner of the site or an area of the site by certified mail, 15 days prior to public noticing such listing decision; and
(ii) to the site contact list, in a timely manner, after the listing decision is complete or, if a site contact list has not been developed, by publication in a local newspaper, as well as notice to the adjacent property owners, the chief executive officer of the city, town or village and the public water supplier, if any, in which the site is located.
(7) Any person may provide to the Department, and the Department shall consider, information relevant to a site listed in the Registry or to an area or structure which may need to be included in the Registry.
(8) In classifying the site, the Department may:
(i) disregard any amelioration of conditions at such site accomplished by the interim remedial measure unless the interim remedial measure achieves the goal of the remedial program for such site as described in subdivisions 375-2.8(a) and (b); and
(ii) base its determination upon facts and circumstances known to the Department to have existed at any time since the date upon which such site was first listed in the Registry that demonstrate the highest relative priority of the need for action at such site; and
(9) The Registry may be updated by adding, deleting or reclassifying sites at any time, in accordance with this section.
(c) Site classification deferral.
(1) The Department will defer the assessment or reassessment of sites for inclusion on the Registry which are the subject of an application for, negotiations for, or implementation of:
(i) a brownfield site cleanup agreement as set forth in ECL article 27, title 14; or
(ii) a State assistance contract for an environmental restoration project.
(2) The deferral will continue for so long as the remedial party is in compliance with the terms of such agreement or State assistance contract.
(3) The Department shall assess or reassess such site upon termination of the agreement or State assistance contract.
(d) Site reclassification or modification.
(1) Site reclassification. The Department may review the classification of any site on the Registry at any time, but must review the classification of each site on the Registry at least annually not later than March 31 of each year. Notification of the reclassification of a site will be provided in accordance with paragraph 375-2.7(b)(6).
(2) Site modification. The site boundary description in the Registry will be revised by the Department as appropriate based upon:
(i) new information regarding the nature and extent of contamination present at the site; or
(ii) a portion of the site being remediated to allow the unrestricted use of that portion of the site.
(e) Site delisting.
(1) The Department will not delete any site from the Registry without providing, at least 60 days prior to the proposed delisting, written notice to:
(i) the owner or operator of the site;
(ii) the public by publication of a notice in the Environmental Notice Bulletin and newspaper of general circulation in the county in which the site is located; and
(iii) the site contact list. If a site contact list has not been developed, the Department will provide notice in accordance with subparagraph 375-2.7(b)(6)(ii).
(2) The Department shall provide an opportunity for submittal of written comments on the proposed delisting, of at least 30 days, and may provide an opportunity to provide oral comments at a public meeting.
(3) The Department shall make publically available a summary of any comments received.
(4) The Department may delist a site if:
(i) the site characterization or remedial investigation does not confirm that the requirements of paragraph 375-2.7(b)(2) above are satisfied;
(ii) a certificate of completion has been issued and:
(a) no environmental easement is required; or
(b) an environmental easement and site management plan are required; and such documents only require institutional controls, with periodic certification, in the form of land use or groundwater use restrictions.
(5) Sites which are delisted with institutional controls, as set forth in subparagraph (4)(ii) above, remain subject to the change of use provisions as set forth in subdivision 375-1.11(d).
(1) The only person who has standing to make a petition is:
(i) a current owner; or
(ii) a responsible party by virtue of being the current operator, or former owner or operator of a site.
(2) Only the following relief may be sought by a petition:
(i) the deletion of a site from the Registry;
(ii) the reclassification of a site to a different class on the Registry; or
(iii) the modification of any information concerning a site on the Registry.
(3) The Department will act only upon a complete petition.
(i) To be complete, a petition must be submitted by a person identified in paragraph (f)(1) above and must seek only relief identified in paragraph (f)(2) above upon the basis of material factual allegations supported by proof that tends to establish the right to the relief sought.
(ii) If the relief being sought is identified in subparagraphs (f)(2)(i) or (ii) above, the proof must be in the form of an affidavit made by a person having direct knowledge of, or who is an expert with regard to, the subject of the matters covered by the petition.
(4) A petition is a written instrument that is filed with the Department.
(5) After receipt of a complete petition, the Department shall not later than:
(i) fifteen calendar days after receipt, publish notice thereof in the environmental notice bulletin, including a deadline not less than 15 nor more than 21 calendar days after the date of publication for submission of written comments on the petition including any request for an administrative hearing; and
(ii) forty-five calendar days after receipt of a complete petition, the Department shall either:
(a) determine to decide the petition summarily; in such case, the Department will proceed to decide the petition, and provide its decision to the petitioner not later than 30 calendar days after such determination; or
(b) if a significant degree of public interest exists, determine that the petition should not be decided summarily and that an administrative hearing should be convened on a date not more than 90 calendar days after receipt of a complete petition; in such case, not sooner than 30 calendar days before such hearing, the Department shall notify the petitioner and all other persons known by the Department to be proper petitioners of the Department's intent to convene such hearing, publish notice thereof in the environmental notice bulletin, and require the petitioner to publish notice thereof at the petitioner's expense in a newspaper of general circulation in the county in which the site is located. Such hearing shall be conducted on the petition and the response thereto by program staff, if any. The burden of proof in such hearing shall be on the petitioner. Upon the conclusion of such hearing, the designated appeal individual will decide the petition, and provide the decision to the petitioner not later than 30 calendar days after the conclusion. The decision of the designated appeal individual shall be the final agency action. The designated appeal individual to conduct such hearing is the assistant director of the division of environmental remediation, or such other individual as may be designated, with complete discretion to regulate the course of such hearing in any fair and impartial manner, including without limitation the discretion to determine the admissibility of evidence and to preclude or restrict oral argument.
(6) The Department shall comply with the provisions under subdivisions (b) or (c) above prior to changing the site classification or listing.
§375-2.8 Remedial program
(a) The goal of the remedial program for a specific site is to restore that site to pre-disposal conditions, to the extent feasible. At a minimum, the remedy selected shall eliminate or mitigate all significant threats to the public health and to the environment presented by contaminants disposed at the site through the proper application of scientific and engineering principles and in a manner not inconsistent with the national oil and hazardous substances pollution contingency plan as set forth in section 105 of CERCLA, as amended as by SARA.
(b) Application of the soil cleanup objectives.
(1) The remedial party must utilize soil cleanup objectives that eliminate or mitigate the significant threat and are protective of public health and the environment. The remedial party, subject to Department approval, may:
(i) utilize the soil cleanup objectives, as set forth in section 375-6.8;
(ii) develop or modify site specific soil cleanup objectives, as set forth at section 375-6.9; or
(iii) propose site-specific soil cleanup objectives which are protective of public health and the environment based upon other information.
(2) The soil component of the remedial program will consider the soil cleanup objectives for unrestricted use, as set forth in Table 375-6.8(a), as representative of pre-disposal conditions for remedial programs proceeding as set forth in subparagraphs (1)(i) or (1)(ii) above, unless an impact to ecological resources has been identified.
(3) Cleanup objectives for other media. The threat to public health and the environment resulting from contamination in all other environmental media shall be evaluated in the development of remedial alternatives in the feasibility study to ensure that the remedial program meets the requirements of this subdivision and section 375-1.8.
(c) Feasibility Study.
(1) A feasibility study shall be conducted by the remedial party that develops and evaluates, using the factors in subdivision 375-1.8(f), alternatives for all contaminated media identified by the remedial investigation of the site.
(2) Where soil contamination above the unrestricted use soil cleanup objectives is identified by the remedial investigation, the feasibility study:
(i) shall develop and evaluate one or more alternatives that achieve the unrestricted use soil cleanup objectives for soil; and
(ii) may evaluate one or more alternatives that achieve a restricted use of the site which may be proposed by the remedial party. Where a restricted use is proposed, the feasibility study shall:
(1) develop and evaluate alternatives to achieve the restricted use proposed by the remedial party; and
(2) develop and evaluate other alternatives, if directed by the Department, which will achieve the same use or a less restricted use of the site than that proposed by the remedial party.
(3) The Department may approve a remedial program for soil that:
(i) utilizes different soil cleanup objectives 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 implemented, maintained, monitored and enforced through the site management plan;
(ii) considers site specific background concentrations, including the location of a site in areas of historic fill, in the development of the remedy; and/or
(iii) achieves a cleanup which is more stringent than the current, intended and reasonably anticipated future land uses of the site and its surroundings.
(4) The Department shall select the remedy for the site from among the feasible alternatives:
(i) developed and evaluated by the feasibility study; or
(ii) developed by the Department in addition to those presented by the feasibility study.
(d) Interim remedial measures. In the case of a site at which an interim remedial measure has been implemented, the Department may determine, based on site-specific circumstances including post-implementation investigation and/or monitoring, that the interim remedial measure satisfies the goal of the remedial program for the site, where only continued implementation of the site management plan associated with the interim remedial measure or other engineering or institutional controls is required. In which event the Department will propose the no further action alternative. Provided no other operable units remain for the site requiring action, the Department may reclassify or delist the site according to subdivisions 375-2.7(d) or (e). (e) Remedy selection. The process of selecting a remedy shall be documented in a record of decision, which includes the information identified below.
(1) The location and a description of the site.
(2) A history of the operation of the site.
(3) The current environmental and public health status of the site.
(4) An enforcement history and current status of the site.
(5) The specific goals and objectives of the remedy selected for the site.
(6) A description and evaluation of the remedial alternatives considered, except in the case of no further action remedies.
(7) A summary of the basis for the Department's decision.
(8) A list of the documents the Department used in its decision making.
(9) A responsiveness summary.
§375-2.9 Certificate of completion
(a) Upon receipt of the certificate of completion and subject to subdivision (b) below, the parties named on such certificate shall not be liable to the Department upon any statutory or common law cause of action, except for one for natural resource damages, arising out of the presence of any contaminants in, on or emanating from the site that was the subject of such certificate.
(b) The certificate of completion does not extend to, nor limit, the State=s rights concerning any further investigation and/or remediation the Department deems necessary due to:
(1) Environmental contamination at, on, under, or emanating from the site if, in light of such conditions, the site is no longer protective of public health or the environment, and the remedial party is not in good faith negotiating, and/or following its approval by the Department, implementing a work plan to achieve conditions at the site which are protective of public health and the environment;
(2) Non-compliance with the terms of the order or state assistance contract, the remedial work plan, site management plan or the certificate of completion after notice of the failure and reasonable opportunity to cure has been afforded to the remedial party by the Department as provided for at paragraph 375-1.9(e)(2);
(3) Fraud related to the remedial program for the site committed by the certificate holder; (4) A finding by the Department that a change in an environmental standard, factor, or criteria upon which the remedial work plan was based renders the remedial program implemented at the site no longer protective of public health or the environment, and the remedial party is not in good faith negotiating, and/or following its approval by the Department, implementing a work plan to achieve conditions at the site which are protective of public health and the environment; or
(5) A change in the site's use subsequent to the Department's issuance of the certificate of completion, unless additional remediation is undertaken which shall meet the standard for protection of the public health and environment that applies to this subpart.
(c) The liability protections set forth in this section shall extend to successors or assigns through acquisition of title to the site to which the certificate applies and to a person who develops or otherwise occupies the site; provided that such persons act with due care and in good faith to adhere to the requirements of the site work plans, site management plan and certificate of completion. However, such liability protections do not extend to, and cannot be transferred, to a responsible party as of the effective date of the certification of completion, unless that person was party to the order for the site on which such certificate was issued.
(d) Liability limitation reopener provisions.
(1) The certificate of completion may be modified or revoked upon a finding by the Department that either:
(i) one or more of the circumstances set forth at paragraph 375-1.9(e)(1) have been met; or
(ii) one or more of the circumstances set forth at paragraph (b) above have been met.
(2) Upon such a finding, notice shall be provided to the certificate holder as set forth in section 375-1.9.
(3) The certificate holder shall have 30 days, from 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 certificate of completion shall be deemed modified or vacated 31 days after the effective date of the Department's notice.
(e) Nothing in this section shall be construed to affect either the liability of any person with respect to any costs, damages, or investigative or remedial activities that are not included in the order or remedial investigation work plan and/or remedial work plan for the site or the Department`s authority to maintain an action or proceeding against any person who is not subject to the order.
(f) Nothing in this section shall be construed to affect the authority of the Department to reach settlement with other persons consistent with its authority under applicable law. (g) Upon issuance of the certificate of completion, the Department will initiate Registry reclassification or delisting proceedings.
§375-2.10 Citizen participation
(a) The Department will require that opportunities for public involvement be included in the development and implementation of an inactive hazardous waste disposal site remedial program, as set forth in this subdivision and section 375-1.10.
(b) This section applies to all inactive hazardous waste disposal site remedial programs, whether implemented by the Department or by a remedial party.
(c) The Department will communicate with, and solicit the views of, all interested parties. To accomplish this, at the appropriate time, the Department will take the actions identified in paragraphs (1) through (3) below.
(1) Mail to those on the site contact list a notice and brief analysis of the proposed remedy, which includes sufficient information to provide a reasonable explanation of that proposed remedy, including but not limited to, a summary of the Department's reasons for preferring it over other remedial alternatives considered and the construction and site management requirements of the proposed remedy.
(2) Provide a 30-day period for submission of written and oral comments, including an opportunity for submission of oral comments at a public meeting on the proposed remedy near the site.
(3) Summarize the written and oral comments received during the comment period and make the summary available to the public upon issuance of the record of decision.
(d) The Department may require the mailing of additional notices and/or fact sheets to those on the site contact list.
(e) All final documents, notices and fact sheets developed for the remedial program will be made available in the document repository.
(f) For interim remedial measures, the Department will not require citizen participation activities unless the scope of the IRM is likely to represent the remedy or a significant portion of the remedy, in which event the Department will require a 30-day comment period.
(g) Technical assistance grants may be made to qualifying community groups for inactive hazardous waste disposal sites classified as class 1 or class 2 on the Registry.
(1) Grants may be used:
(i) to obtain technical assistance in interpreting information with regard to the nature and extent of contamination at, or emanating from, the site and the hazard to public health and the environment posed by contaminants located at or emanating from the site;
(ii) to hire health and safety experts to advise affected residents on any health assessments or the hazard, or potential hazard, to life or health resulting from the contaminants at the site; or
(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 the purposes of:
(i) collecting field sampling data;
(ii) political activity;
(iii) lobbying legislative bodies; or
(iv) litigation purposes.
(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 a responsible party 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 class 1 or 2 inactive hazardous waste disposal 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:
(i) a 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 a responsible party 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 herein by reference;
(c) all information included in this application, including attachments, is accurate and complete 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). All such grants are recoverable State costs subject to recovery from responsible parties.
(7) The Department may require a responsible party to provide a technical assistance grant up to an aggregate maximum of $50,000 per site directly to a qualifying community group. Such responsible party shall provide for a grant consistent with the requirements of this subdivision within a time frame directed by the Department.
(1) Except in the event of an emergency, in which event the remedial party shall comply with paragraph 375-1.5(b)(1), no person shall undertake at a site listed in the Registry any physical alteration that constitutes storage, treatment, or disposal of any contaminant which served as the basis for such listing, unless such conduct:
(i) is exempted under subdivision 373-1.1(d) of this title or permitted under Part 373 of this title, including corrective action under section 373-2.19 of this title;
(ii) to provide for corrective actions at a treatment, storage or disposal facility pursuant to section 373-2.19 of this title; or
(iii) is done with the express written approval of the Department granted either by order or in such other manner as the Commissioner shall direct.
(2) No person to whom a request has been made pursuant to ECL 27-1307(1) shall fail to comply therewith.
(3) No person to whom a request has been made pursuant to ECL 27-1309(1) shall fail to comply therewith.
(4) No person to whom an order has been issued pursuant to ECL 27-1313(3) shall fail to comply therewith.
(b) State environmental quality review act applicability. Remedy selection and implementation of remedial actions under Department approved work plans pursuant to ECL article 27, title 13 are not subject to review pursuant to ECL article 8 and its implementing regulation (6 NYCRR Part 617), as an exempt action pursuant to the enforcement exemption provision.
(c) State funding: hazardous waste remedial fund.
(1) The Department may expend moneys of the hazardous waste remedial fund provided for at SFL section 97-b for the following purposes:
(i) to pay, in whole or in part, the Department's costs and expenses incurred in the development and implementation of a remedial program under the following circumstances;
(a) when a person responsible for a site, having been ordered to do so under section 375-2.1, has failed to comply with such order;
(b) when a person responsible for a site cannot be identified or located;
(c) when circumstances exist that substantiate the making either the findings of the Commissioner set forth at ECL 37-1313(b)(3)(b), or the findings of the commissioner of health set forth in section 1389-b.3.b of the public health law but only to the extent necessary to address those circumstances unless the Department, in the exercise of discretion, determines that it would be cost-effective to develop and implement the complete program;
(d) when the Department, after making all reasonable efforts to secure voluntary agreement, as documented by the findings of the Commissioner set forth at SFL section 97-b(4), has not secured a voluntary agreement by the owner, operator or other responsible person for a site. For purposes of this section, the phrase "all reasonable efforts to secure voluntary agreement" means the diligent conduct of a search to identify responsible parties by a method or methods appropriate to the circumstances of the particular site including, but not limited to, reviews of real property records, regulatory files of appropriate government agencies, publicly available financial information, and private business records obtained under ECL 27-0915; ECL 27-1307; and/or ECL 27-1309; and the selection of the owner and/or operator or other person responsible for a site that the Department determines to be an appropriate party with which to negotiate; and diligent conduct of negotiations with that responsible party. Negotiations have been conducted diligently with a particular responsible party when the Department informs that party of the Department's intention to negotiate an order on consent with that party the objective of which is to commit that party to the development and/or implementation of a remedial program, and that party:
(1) does not respond to the Department's notification;
(2) responds to the Department's notification by refusing to negotiate;
(3) starts negotiations and thereafter discontinues same;
(4) starts negotiations and does not enter into a consent order authorized by subdivision 375-2.5 (a) to undertake the objective of the negotiations within the time frame established by the Department's notification, which shall not be later than 6 months after the commencement of negotiations; or
(5) demonstrates to the Department's satisfaction that it is unable to pay for the objective of the negotiation;
(ii) to pay for the cleanup or restoration to its original state of any area where contaminants were disposed of or possessed unlawfully contrary to ECL 27-0914;
(iii) to pay for site identification, classification, and investigation activities including, but not limited to, testing, analyses, and record searches, and the Department's related administrative activities;
(iv) to pay for all other activities to develop and regularly update the plan required by ECL 27-1305(5) and ECL 27-1305(6); and
(v) to pay for response actions to clean up spills of contaminants or to abate other public health or environmental hazards caused by contaminants, except those provided for under the New York State environmental protection and spill compensation fund, when an emergency exists as documented by the findings of the Commissioner in such form as the Commissioner may prescribe.
(2) The Department must attempt to recover all costs and expenses incurred by the State associated with a site that are attributable to the identification thereof as a site and to the remedial program pertaining to such site.