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Subpart 375-1: General Remedial Program Requirements

(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.

§375-1.1 Purpose; applicability; construction; abbreviations; and severability

(a) The purpose of this Part is to provide for the orderly and efficient administration of 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 and SFL article 6, section 97-b. The requirements set forth in this Part apply to any order, agreement, stipulation or State assistance contract entered into by the Department after the effective date of this Part and all work plans, reports, certificates, and other remedial program documents approved, accepted, or issued by the Department on or after the effective date of this Part.

(b) This Part applies to the following:

(1) The development and implementation of remedial programs for inactive hazardous waste disposal sites, specifically under subpart 375-2, including, but not limited to, sites listed in the Registry which are either on the national priorities list (NPL) or are being addressed by the department of defense or the department of energy.

(2) The development and implementation of remedial programs for brownfield sites, specifically under subpart 375-3.

(3) The development and implementation of remedial programs for environmental restoration sites, specifically under subpart 375-4.

(4) The soil cleanup objectives for remedial programs, specifically under subpart 375-6.

(c) This Part is intended to promote the public good consistent with the policy of this State set out at ECL 1-0101 and accordingly this Part shall be construed so as to achieve that objective. As used herein, the singular includes the plural. Any reference herein to a particular provision of any State statute or regulation shall be deemed a reference to such provision as it may hereafter be amended or redesignated.

(d) This subpart sets forth the general requirements that are common to the implementation of remedial programs under subparts 375-2, 375-3 and 375-4. Specific requirements which apply in addition to these general requirements are set forth in subparts 375-2, 375-3 and 375-4. If there is a conflict, this subpart is superceded by any inconsistent provision of subparts 375-2, 375-3 and 375-4.

(e) Abbreviations:

(1) Statutes:

(i) "CERCLA" means the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 USC section 9601, et seq.;

(ii) "CPLR" means the Civil Practice Law and Rules;

(iii) "ECL" means the Environmental Conservation Law;

(iv) "EL" means the Executive Law;

(v) "GML" means the General Municipal Law;

(vi) "GOL" means the General Obligations Law;

(vii) "NL" means the Navigation Law;

(viii) "NPCL" means the Not-for-Profit Corporation Law;

(ix) "PHL" means the Public Health Law;

(x) "RPL" means the Real Property Law;

(xi) "SFL" means the State Finance Law;

(xii) "SARA" means the Superfund Amendments and Reauthorization Act of 1986, PL 99-499 Stat 1613, et seq.;

(xiii) "USC" or "USCA" means United States Code.

(2) Regulations:

(i) "6 NYCRR" means title 6 of the Official Compilation of New York Codes, Rules and Regulations;

(ii) "10 NYCRR" means title 10 of the Official Compilation of New York Codes, Rules and Regulations;

(iii) "19 NYCRR" means title 19 of the Official Compilation of New York Codes, Rules and Regulations.

(f) If any provision of this Part or its application to any particular person or circumstance is held invalid, the remainder of this Part and its application to other persons and circumstances shall not be affected thereby.

(g) The following documents have been incorporated by reference and filed with the Department of State. The documents are also available for inspection and copying at the Department of Environmental Conservation office at 625 Broadway, Albany, New York, 12233-7010:

(1) Standards E1527-05 (2005) and E1527-97 (1997), published by ASTM International, Post Office Box C700, West Conshohocken, Pennsylvania, 19428-2959; and

(2) The National Contingency Plan (NCP), Title 40 of the Code of Federal Regulations (CFR) Part 300, which is available from the United States Environmental Protection Agency (EPA) on its website at http://www.epa.gov.

§375-1.2 Definitions

The definitions set forth in ECL 27-1301; ECL 27-1405; and ECL 56-0502, some of which are clarified in this section, and the additional definitions set forth in this section, shall apply to these regulations. Certain definitions which apply only to the individual programs are set forth in subparts 375-2, 375-3, 375-4 and 375-6 of this Part respectively.

(a) "All appropriate inquiry" means, for purposes of ECL 27-1323.4(c):

(1) Compliance with the procedures of ASTM Standard 1527-05 for acquisitions completed on or after the effective date of this rule;

(2) Compliance with the procedures of ASTM Standard 1527-97 for acquisitions after May 31, 1997 and before the effective date of this rule; or

(3) Compliance with the industry standards and guidance on or before May 31, 1997.

(b) "Brownfield site" means any real property, the redevelopment or reuse of which may be complicated by the presence or potential presence of a contaminant. Such term shall not include real property identified in subdivision 375-3.3(b).

(c) "Brownfield site remedial program" means a remedial program, as defined in subdivision 375-1.2(ap), at a brownfield site.

(d) "Certificate holder" means the remedial party set forth in the certificate of completion issued by the Department, as well as such party's successors and assigns who have received a transfer of such certificate in accordance with subdivision 375-1.9(f).

(e) "Commissioner" means the Commissioner of the New York State Department of Environmental Conservation or such individual's designee.

(f) "Concentrated solid or semi-solid hazardous wastes" means solid or semi-solid hazardous wastes present in surface or subsurface soil, surface water, sediment or groundwater in a concentrated form, such as precipitated metallic salts, metal oxides, or chemical sludges.

(g) "Contaminant" means hazardous waste and/or petroleum as such terms are defined in subdivisions (w) and (ah) respectively below.

(h) "Contaminated" or "contamination" means the presence of a contaminant in any environmental media, including soil, surface water, sediment, groundwater, soil vapor, ambient air or indoor air.

(i) "Days" means calendar days.

(j) "Department" means the New York State Department of Environmental Conservation.

(k) "Disposal" means the abandonment, discharge, deposit, injection, dumping, spilling, leaking or placing of any contaminant 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.

(l) "Document repository" means a repository of site remedial program documents approved by the Department or released for public comment established in a publicly accessible building near the location of such site.

(m) "Ecological resources" means all flora and fauna and the habitats that support them, excluding such biota as pets, livestock, agricultural and horticultural crops.

(n) "Emergency" means a spill, or other event or condition, whether natural or human-made, as a result of which a release or threatened release of contamination presents an immediate threat to life, health, property, or natural resources.

(o) "Engineering control" means any physical barrier or method employed to actively or passively contain, stabilize, or monitor contamination, restrict the movement of contamination to ensure the long-term effectiveness of a remedial program, or eliminate potential exposure pathways to contamination. Engineering controls include, but are not limited to, pavement, caps, covers, subsurface barriers, vapor barriers, slurry walls, building ventilation systems, fences, access controls, provision of alternative water supplies via connection to an existing public water supply, adding treatment technologies to such water supplies, and installing filtration devices on private water supplies.

(p) "Environment" means any water including surface or groundwater, sediment, water vapor, any land including land surface or subsurface, air including soil vapor, fish, wildlife, other biota, all other natural resources and humans.

(q) "Environmental easement" means an interest in real property, created under and subject to the provisions of ECL article 71, title 36 which contains a use restriction and/or a prohibition on the use of land in a manner inconsistent with engineering controls; provided that no such easement shall be acquired or held by the state which is subject to the provisions of article fourteen of the constitution of the State of New York.

(r) "Environmental restoration project" means a project to investigate or to remediate contamination pursuant to ECL article 56, title 5.

(s) "Feasible" means suitable to site conditions, capable of being successfully carried out with available technology, implementable and cost effective.

(t) "Financial assurance" means financial mechanisms, which include but are not limited to surety bonds, trust funds, letters of credit, insurance or a multiple of financial mechanisms, as determined to be adequate by the Department, to ensure the long term implementation, maintenance, monitoring and enforcement of the engineering and institutional controls at a remedial site.

(u) "Grossly contaminated media" means soil, sediment, surface water or groundwater which contains sources or substantial quantities of mobile contamination in the form of NAPL, as defined in subdivision 375-1.2 (ac), that is identifiable either visually, through strong odor, by elevated contaminant vapor levels or is otherwise readily detectable without laboratory analysis.

(v) "Groundwater" means water below the land surface in a saturated zone of soil or rock. This includes perched water separated from the main body of groundwater by an unsaturated zone.

(w) "Hazardous waste" means a waste which appears on the list or satisfies the characteristics promulgated by the Commissioner pursuant to ECL 27-0903 and any substance which appears on the list promulgated pursuant to ECL 37-0103; provided, however, that the term "hazardous waste" does not include:

(1) Natural gas, natural gas liquids, liquefied natural gas, synthetic gas usable for fuel, or mixtures of natural gas and such synthetic gas; nor

(2) The residue of emissions from the engine exhaust of a motor vehicle, rolling stock, aircraft, vessel, or pipeline pumping station engine; nor

(3) Source, byproduct, or special nuclear material from a nuclear incident, as those terms are defined in the atomic energy act of 1954, if such release is subject to requirements with respect to financial protection established under section 170 of such act (42 USC 2210) or, for the purpose of section 104 of CERCLA, or any other response action, any source, byproduct, or special nuclear material from any processing site designated under section 102(a)(1) or 302(a) of the uranium mill tailings radiation control act of 1978 (42 USC 7912(a)(1) or 7942(a)); nor

(4) Petroleum as defined in subdivision (ah) below, even if appearing on the list promulgated pursuant to ECL 37-0103.

(x) "Historic fill material" means non-indigenous or non-native material, historically deposited or disposed in the general area of, or on, a site to create useable land by filling water bodies, wetlands or topographic depressions, which is in no way connected with the subsequent operations at the location of the emplacement, and which was contaminated prior to emplacement. Historic fill may be solid waste including, but not limited to, coal ash, wood ash, municipal solid waste incinerator ash, construction and demolition debris, dredged sediments, railroad ballast, refuse and land clearing debris, which was used prior to October 10, 1962. Any soil or soil-like wastes from any area which was operated by a municipality or other person as a landfill is not considered historic fill. For purposes of a remedial program, historic fill does not include any material which is chemical production waste or waste produced on the site from processing of metal or mineral ores, residues, slag or tailings.

(y) "Inactive hazardous waste disposal site" means any area or structure used for the long term storage or final placement of hazardous waste including, but not limited to, dumps, landfills, lagoons and artificial treatment ponds, as to which area or structure no permit or authorization issued by the department or a federal agency for the disposal of hazardous waste was in effect after the effective date of this title and any inactive area or structure on the NPL established under the authority of 42 USCA section 9605, et seq.

(z) "Inactive hazardous waste disposal site remedial program" means a remedial program, as defined in subdivision (ap) of this section, at an inactive hazardous waste disposal site.

(aa) "Institutional control" means any non-physical means of enforcing a restriction on the use of real property that limits human or environmental exposure, restricts the use of groundwater, provides notice to potential owners, operators, or members of the public, or prevents actions that would interfere with the effectiveness of a remedial program or with the effectiveness and/or integrity of operation, maintenance, or monitoring activities at or pertaining to a remedial site.

(ab) "Interim remedial measure" means activities to address both emergency and non-emergency site conditions, which can be undertaken without extensive investigation and evaluation, to prevent, mitigate or remedy environmental damage or the consequences of environmental damage attributable to a site, including, but not limited to, the following activities: construction of diversion ditches; collection systems; drum removal; leachate collection systems; construction of fences or other barriers; installation of water filters; provision of alternative water systems; the removal of source areas; or plume control.

(ac) "Non-aqueous phase liquid" or "NAPL" means a contaminant that is a liquid which may be denser or lighter than water and does not mix easily or dissolve in water, but remains as a separate phase.

(ad) "Off-site contamination" means any contamination which has emanated from a remedial site beyond the real property boundaries of such site, via movement through air, indoor air, soil, surface water or groundwater.

(ae) "On-site contamination" means any contamination located within the real property boundaries of a remedial site.

(af) "Operable unit" means a portion of the remedial program for a site that for technical or administrative reasons can be addressed separately to investigate, eliminate or mitigate a release, threat of release or exposure pathway resulting from the site contamination. Operable units may address geographical portions of a site, media specific action, specific site problems, or an initial phase of an action, or may consist of any set of actions performed over time or any actions that are concurrent but located in different parts of a site. An operable unit may be proposed by the Department or a remedial party; however, only the Department can approve the use of operable units.

(ag) "Person" means an individual, trust, firm, joint stock company, limited liability company, corporation, joint venture, partnership, association, state, municipality, commission, political subdivision of a state, public benefit corporation or any interstate body. Provided however, a person shall not include a person as defined in ECL 27-1323.

(ah) "Petroleum" means oil or petroleum of any kind and in any form including, but not limited to, oil, petroleum, fuel oil, oil sludge, oil refuse, oil mixed with other wastes and crude oils, gasoline and kerosene.

(ai) "Presumptive remedy" means technologies or approaches appropriate for the remediation of specific types of contamination which, based on historical patterns of remedy selection and the Department's scientific and engineering evaluation of performance data, can be used to accelerate the remedy selection process.

(aj) "Professional engineer" means an individual or firm licensed or otherwise authorized under article 145 of the education law of the State of New York to practice engineering.

(ak) "Qualified environmental professional" means a person who possesses sufficient specific education, training, and experience necessary to exercise professional judgment to develop opinions and conclusions regarding the presence of releases or threatened releases to the surface or subsurface of a property or off-site areas, sufficient to meet the objectives and performance factors for the areas of practice identified by this Part. Such a person must:

(1) hold a current professional engineer's or a professional geologist's license or registration issued by the State or another state, and have the equivalent of three years of full-time relevant experience in site investigation and remediation of the type detailed in this Part; or

(2) be a site remediation professional licensed or certified by the federal government, a state or a recognized accrediting agency, to perform investigation or remediation tasks consistent with Department guidance, and have the equivalent of three years of full-time relevant experience.

(al) "Registry" means the registry of inactive hazardous waste disposal sites maintained by the Department pursuant to ECL 27-1305.

(am) "Release" means any pumping, pouring, emitting, emptying, or leaching, directly or indirectly, of a contaminant so that the contaminant or any related constituent thereof, or any degradation product of such a contaminant or of a related constituent thereof, may enter the environment, or the disposal of any contaminant.

(an) "Remedial investigation" means a process undertaken to determine the nature and extent of contamination at a site or operable unit of a site. The remedial investigation emphasizes data collection and site characterization, and generally is performed in support of the selection of a remedy. The scope of a remedial investigation is more fully described in subdivision 375-1.8(e).

(ao) "Remedial party" means a person implementing a remedial program at a remedial site pursuant to an order, agreement or State assistance contract with the Department.

(ap) "Remedial program" means all activities undertaken to investigate, design, eliminate, remove, abate, control, or monitor existing health hazards, existing environmental hazards, potential health hazards, potential environmental hazards in connection with a site, and all activities including, but not limited to, the following undertaken to manage waste and contamination from a site.

(1) Site characterization and remedial investigation activities needed to develop and evaluate remedial alternatives.

(2) Interim remedial measures.

(3) Design activities.

(4) Remedial actions, including, but not limited to, construction related activities and the implementation of remedial treatment technologies, including without limitation grading, contouring, trenching, grouting, capping, excavation, transporting, incineration and other thermal treatment, chemical treatment, biological treatment, or construction of groundwater and/or leachate collection and treatment facilities.

(5) Post-remedial site management including, but not limited to, the operation, maintenance, monitoring of remedial treatment technologies, and the certification of institutional and engineering controls;

(6) Restoration of the environment.

(7) Appropriate involvement by local governments and by the public.

(8) Oversight by the Department.

(aq) "Remedial site" or "site" means any real property consisting of a parcel, adjacent properties or parcels, or portions of properties or parcels, identified as:

(1) An inactive hazardous waste disposal site;

(2) A brownfield site; or

(3) An environmental restoration project, as defined by the State assistance contract.

(ar) "Sediment" means unconsolidated particulate material found at the bottom of lakes, rivers, streams and other water bodies at bed elevations equal to or lower than the mean high water level as defined in subdivision 608.1(i) of this title.

(as) "Site contact list" or "brownfield site contact list" means a list of persons, government agencies, groups, or organizations, including, but not limited to, the chief executive officer and zoning board of each county, city, town and village in which such site is located, the public water supplier which serves the area in which such site is located, any site residents, adjacent property owners, any person who has requested to be placed on the site contact list, and the administrator of any school or day care facility located on the site for the purposes of posting and/or dissemination at the facility. Provided, however, that where the site or adjacent real property contains multiple dwelling units, the remedial party may propose an alternative method, consistent with the citizen participation goals set forth in section 375-1.10, for providing such notice in lieu of mailing to each individual.

(at) "Site management" means the activities undertaken as the last phase of the remedial program at a site which continue after a certificate of completion is issued. Site management is conducted in accordance with a site management plan, which identifies and implements the institutional and engineering controls required for a site, as well as any necessary monitoring and/or operation and maintenance of the remedy.

(au) "Source area" or "source" means a portion of a site or area of concern at a site where the investigation has identified a discrete area of soil, sediment, surface water or groundwater containing contaminants in sufficient concentrations to migrate in that medium, or to release significant levels of contaminants to another environmental medium, which could result in a threat to public health or the environment. A source area typically includes, but is not limited to, a portion of a site where a substantial quantity of any of the following are present:

(1) Concentrated solid or semi-solid hazardous substances;

(2) Non-aqueous phase liquids; or

(3) Grossly contaminated media.

(av) "Technical assistance grant" means a grant provided in accordance with ECL 27-1316 and ECL 27-1417(4).

(aw) "Waste" means any garbage, refuse, sludge from a waste water treatment plant, water supply treatment plant, or air pollution control facility, and other discarded material, whether or not such material may eventually be used for some other purpose, including solid, liquid, semi-solid, or contained gaseous material resulting from industrial, commercial, mining, and agricultural operations or from community activities, and source, special nuclear or by-product material as defined in the atomic energy act of 1954, as amended, except as may be provided by existing agreements between the State of New York and the government of the United States, but does not include solid or dissolved material in domestic sewage, or solid or dissolved materials in irrigation return flows or industrial discharges which are point sources subject to permits under ECL article 17.

(ax) "Water supplier" or "public water supplier" means any public water system which provides water to the public for human consumption through pipes or other constructed conveyances, if such system has at least five service connections or regularly serves an average of at least 25 individuals daily at least 60 days out of the year.

§375-1.3 Reserved

§375-1.4 Reserved

§375-1.5 Orders, agreements, and State assistance contracts

(a) Notice of order, agreement or State assistance contract.

(1) Where the remedial party owns the remedial site, such party shall:

(i) within 30 days of execution by the Commissioner of the order, agreement or State assistance contract, record a notice of such instrument in the office of the recording officer for the county or counties where the remedial site is situated in the manner prescribed by RPL article 9; and

(ii) provide written notice of the order, agreement or State assistance contract, and the status of the remedial program, to any prospective purchaser or lessee of any interest in any portion of the remedial site.

(2) Where the remedial party does not own the remedial site:

(i) the remedial party shall, within 30 days of execution by the Commissioner of the order, agreement or State assistance contract, provide written notice of such instrument to the owner of the remedial site;

(ii) the owner of the remedial site shall, within 30 days of receipt of such notice from the remedial party, record a notice of such instrument in the office of the recording officer for the county or counties where the remedial site is situated in the manner prescribed by RPL article 9; and

(iii) the owner of the remedial site shall provide written notice of the order, agreement or State assistance contract, and the status of the remedial program, to any prospective purchaser or lessee of any interest in any portion of the remedial site.

(b) In addition to such further terms and conditions as the Department may require in the order, agreement or State assistance contract, the following provisions apply when a remedial party is implementing a remedial program under an order, agreement or State assistance contract with the Department. The order, agreement or State assistance contract shall be binding on each party, its successors and assignees while in effect. No change in the ownership or corporate or business status of any party, or of the site shall alter any signatory's responsibilities under this order, agreement or State assistance contract.

(1) Emergencies. The remedial party shall notify the Department's project manager by noon of the next business day, upon knowledge of any condition posing an emergency as set forth at subdivision 375-1.2(n). In the event that any action or occurrence under the order, agreement or State assistance contract causes or threatens an emergency situation, the remedial party shall promptly take all appropriate action to prevent, abate, or minimize such emergency in accordance with applicable law. Nothing in this paragraph shall be deemed to limit the authority of the Department to take, direct, or order all appropriate action to protect public health and the environment or to prevent, abate, respond to, or minimize an actual or threatened release from the site.

(2) Dispute Resolution.

(i) The remedial party shall submit any dispute relating to the order, agreement or State assistance contract to the designated individual in writing no more than 15 days after it knew or should have known of the facts which are the basis of the dispute. The designated individual shall render a written decision and furnish a copy thereof to the remedial party, which shall be the final agency determination, unless the remedial party files a written appeal of that decision with the designated appeal individual within 20 days of receipt of that decision.

(ii) Upon receipt of the written appeal pursuant to subparagraph (2)(i) above, the designated appeal individual, will review the record and decision. The designated appeal individual will take one of the following actions, with written notice to the remedial party:

(a) remand the matter to the program staff for further negotiation or information if it is determined that the matter is not ripe for review;

(b) determine that there is no need for further action, and that the determination of the designated individual is confirmed; or

(c) make a determination on the record as it exists.

(iii) The decision of the designated appeal individual shall be the final agency decision. Such final agency decision may be reviewed pursuant to CPLR article 78.

(iv) The designated individual to:

(a) hear disputes is a bureau director in the division of environmental remediation; and

(b) to review dispute decisions is the assistant director of the division of environmental remediation

(v) The invocation of dispute resolution shall not extend, postpone, or modify obligations with respect to any item not in dispute unless or until either:

(a) the Department agrees in writing to an extension, postponement or modification; or

(b) a court determines otherwise.

(vi) The Department shall keep an administrative record of dispute resolution proceedings.

(3) Payment of State Costs.

(i) Within 45 days after receipt of an itemized invoice from the Department, the remedial party shall pay to the Department a sum of money which shall represent reimbursement for State costs, which shall include costs associated with negotiating the order or agreement, and all costs associated with the order or agreement up to and including the date upon which the certificate of completion is issued, the Department approves the final site management report, or the order or agreement is terminated, whichever is later. If the remedial party is also responsible for reimbursement of past State costs, associated with remedial activities conducted at the site such reimbursement must also be made within 45 days after the receipt of an itemized invoice from the Department.

(ii) The invoice shall be calculated and documented as follows:

(a) personal service costs shall be documented by reports of direct personal service;

(b) approved agency fringe benefit and indirect cost rates shall be applied;

(c) non-personal service costs shall be summarized by category of expense (e.g., supplies, materials, travel, contractual) and shall be documented by expenditure reports; and

(d) except as otherwise provided by statute or regulation, the Department is not obligated to provide any other documentation of costs.

(iii) Each such payment shall be made payable to the Department and shall be sent to:

Bureau of Program Management
Division of Environmental Remediation
NYSDEC
625 Broadway, Albany, NY 12233-7012

(iv) The remedial party shall provide written notification within 90 days of any change in its address.

(v) A remedial party may contest, in writing, invoiced costs if it believes

(a) the cost documentation contains clerical, mathematical, or accounting errors; or

(b) the costs are not related to the State's activities at the site.

(vi) If a remedial party objects to an invoiced cost, such party shall pay all costs not objected to within the 45-day time frame and shall, within 30 days of receipt of an invoice, identify in writing all costs objected to and identify the basis of the objection. This objection shall be filed with the division of environmental remediation director who shall have the authority to waive the obligation to pay disputed costs. Within 45 days of the Department's determination of the objection, which determination shall constitute a final agency decision, the remedial party shall pay to the Department the amount which the division of environmental remediation director determines is owed; provided, however, that such payment shall be stayed until 45 days after the final determination of any challenge which is brought pursuant to article seventy-eight of the civil practice law and rules.

(4) Force majeure.

(i) No remedial party shall suffer any penalty or be subject to any proceeding or action if it cannot comply with any requirement of an order, agreement or State assistance contract to implement all or part of a remedial program if the failure to comply is the result of a force majeure event. A force majeure event shall include acts of God, work stoppages due to labor disputes or strikes, fires, explosions, epidemics, riots, war rebellion, sabotage any other fact or circumstance beyond the reasonable control of the remedial party. If a failure of or delay in performance by the remedial party results from the occurrence of a force majeure event, the delay shall be excused and the time for performance extended by a period equivalent to the time lost because of the force majeure event, if and to the extent that the:

(a) delay or failure was beyond the control of the remedial party affected and not due to its fault or negligence;

(b) delay or failure was not extended because of the remedial party's failure to use all reasonable diligence to overcome the obstacle or to resume performance immediately after such obstacle was overcome;

(c) remedial party provides notice to the Department within 5 days of the onset of the event, that it is invoking the protection of this provision; and

(d) notice shall include the measures taken and to be taken to prevent or minimize any delays and may request an appropriate extension or modification as appropriate.

(ii) the remedial party has the burden of proving by a preponderance of the evidence that an event qualifies as a force majeure event under this paragraph.

(5) Resolution of liability.

(i) To the extent authorized under 42 USC section 9601, et seq.; GOL section 15-108, and any other applicable law, the remedial party shall be deemed to have entered into an administrative settlement of liability and to have resolved its liability to the State for purposes of contribution protection provided by 42 USC section 9613(f)(2) for "matters addressed" pursuant to and in accordance with such order, agreement or State assistance contract.

(ii) "Matters addressed" in the order, agreement or State assistance contract shall mean all response actions taken by the remedial party to implement the order, agreement or State assistance contract for the site and all response costs incurred and to be incurred by any person or party in connection with the work performed under such order, agreement or State assistance contract, which costs have been paid by the remedial party, including reimbursement of State costs pursuant to the order, agreement or State assistance contract.

(iii) Furthermore, to the extent authorized under 42 USC section 9613(f)(3)(B), by entering into such administrative settlement of liability, if any, for some or all of the response action and/or for some or all of the costs of such action, the remedial party is entitled to seek contribution from any person except those who are entitled to contribution protection under 42 USC section 9613(f)(2) or, if applicable, ECL 27-1421.

§375-1.6 Work plans and reports

(a) Work plans. All work undertaken as part of a remedial program for a site shall be detailed in a work plan, unless determined otherwise by the Department.

(1) All work plans shall:

(i) be prepared and implemented in accordance with the requirements of all applicable laws, rules and regulations; and

(ii) consider applicable Department guidance.

(2) A proposed work plan shall be submitted for Department review and approval, as set forth in subdivision (d) below, and shall include, at a minimum, a schedule for performance of anticipated activities with sufficient detail to allow the Department to evaluate that work plan.

(3) During all field activities conducted under a Department approved work plan, the remedial party shall have a qualified environmental professional, meeting the requirements set forth in 375-1.2(ak), on site to supervise the activities undertaken. Such representative may be an employee or a consultant retained by the remedial party to perform such supervision.

(4) The Department shall be notified at least 7 days in advance of, and be allowed to attend, any field activities to be conducted under a Department approved work plan, as well as any pre-bid meetings, job progress meetings, substantial completion meeting and inspection, and final inspection and meeting; provided, however that the Department may be excluded from portions of meetings where privileged matters are discussed.

(b) Reports.

(1) All reports including, but not limited to, all reports, design documents, plans or site management plans, with the exception of the final engineering report which is addressed in subdivision (c) below; which are submitted to the Department in draft or final form pursuant to an order, agreement or State assistance contract for any phase of the remedial program are to be submitted in accordance with the schedule contained in an approved work plan, report or design document or any subsequent schedule agreed to and approved by the Department.

(2) Reports shall include, but not be limited to, all:

(i) environmental or health data generated relative to the site;

(ii) information, other than in subparagraph (i) above, obtained as part of the implementation of the work plan; and

(iii) assessments and evaluations required by the work plan.

(3) Each final report, shall contain a certification by the person with primary responsibility for the day to day performance of the activities under the work plan. The certification shall:

(i) be on such form as provided by the Department and shall be included in the final report provided for approval;

(ii) be completed by a professional engineer, or such other qualified environmental professional as the Department may find acceptable; and

(iii) certify that all activities were performed in full accordance with the Department approved work plan and any Department approved modifications.

(c) Final engineering report.

(1) In accordance with the schedule contained in an approved remedial work plan or remedial design, a final engineering report shall be submitted that includes but is not limited to:

(i) a description of activities completed pursuant to the approved remedial work plan or remedial design;

(ii) site boundaries;

(iii) a description of any institutional controls that will be used, including mechanisms to implement, maintain, monitor, and enforce such controls; and

(iv) a site management plan, as set forth in subdivision 375-1.2(at).

(2) The final engineering report shall be prepared in accordance with all relevant statutes and regulations and upon consideration of applicable guidance.

(3) The final engineering report shall be prepared by a professional engineer with primary responsibility for the day to day performance of the remedial program activities.

(4) The final engineering report shall include a certification by the professional engineer, that:

(i) such party is, and at all pertinent times hereinafter mentioned was, a currently registered professional engineer;

(ii) such party is the individual who had primary direct responsibility for the implementation of the subject remedial program;

(iii) all requirements of the remedial program have been complied with;

(iv) the data demonstrates that remediation requirements have been or will be achieved in accordance with time frames contained in the approved remedial program;

(v) all activities described in this report have been performed in accordance with the remedial program and any subsequent changes as agreed to and approved by the Department,

(vi) any use restrictions, institutional and/or engineering controls, and/or any site management plan requirements are contained in a duly recorded environmental easement and that every municipality in which the site is located has been notified of the environmental easement; and

(vii) any required financial assurance mechanisms required in accordance with subdivision 375-1.11(c) have been executed.

(5) The Department shall review the final engineering report, the submittals made in the course of the remedial program, and any other relevant information regarding the site and make a determination as to whether the goals of the remedial program have been or will be achieved in accordance with established time frames.

(6) The Department will issue a written certificate of completion, upon the Department's approval of the final engineering report.

(d) Review of work plans and reports.

(1) The Department shall approve, modify, or reject a proposed work plan or report submitted pursuant to an order, agreement or State assistance contract.

(2) Approval. Upon the Department's written approval of a work plan or report, such work plan or report shall:

(i) be incorporated into and become an enforceable part of any order, agreement or State assistance contract pertaining to the site's remedial program;

(ii) in the case of a:

(a) work plan, be implemented in accordance with the schedule contained therein; or

(b) report, the approval will initiate the next phase of the remedial program in accordance with the order, agreement or State assistance contract; and

(iii) such work plan or report shall be placed by the remedial party in the site document repository.

(3) Modification. If the Department requests modification of a work plan or report by the remedial party, or provides a Department modified work plan or report, the reasons for such modification shall be provided in writing. Within 15 days of the notice, the remedial party shall elect in writing to:

(i) modify the work plan or report as requested by the Department, or accept a Department modified work plan or report, within 30 days of receipt of the written notice;

(ii) invoke dispute resolution, as set forth in paragraph 375-1.5 (b)(2); or

(iii) in the case of a brownfield site remedial program, terminate the agreement in accordance with subdivision 375-3.5.

(4) Disapproval. If the Department disapproves a work plan or report, the reasons for such disapproval shall be provided in writing. Within 15 days of that written notice, the remedial party shall elect in writing to:

(i) modify the disapproved work plan or report, within 30 days of receipt of the written notice;

(ii) invoke dispute resolution, as set forth in paragraph 375-1.5 (b)(2); or

(iii) in the case of a brownfield site remedial program, the remedial party can also terminate the agreement in accordance with section 375-3.5.

§375-1.7 Reserved

§375-1.8 Remedial program

(a) The goals of each remedial program are set forth respectively in sections 375-2.8, 375-3.8 and 375-4.8. To achieve the applicable goals the remedial program may include, but not be limited to, the actions set forth in this section.

(1) A site may be divided into operable units, as defined in subdivision 375-1.2(af).

(2) Multiple work plans and reports may be approved for a site, as set forth in section 375-1.6.

(3) All remedial programs shall address bulk storage tanks or containment vessels, source removal and control and groundwater protection and control measures, as set forth in subdivisions (b) through (d) below.

(4) Remedy selection at a site may consider the use of innovative technologies which are demonstrated to be feasible to meet the remediation requirements.

(5) Where the remedial program for a site requires ongoing site management, a site management plan will be developed for the site which will include, as applicable for the remedial program, the following plans:

(i) institutional and engineering control plan;

(ii) monitoring plan; and/or

(iii) operation and maintenance plan.

(6) The remedial program at a site shall analyze the impact of contamination at a site on the following environmental media:

(i) soil;

(ii) groundwater;

(iii) surface water and sediments;

(iv) soil vapor;

(v) ambient air; and

(vi) biota.

(7) Where an interim remedial measure is proposed at a site, such measure will be conducted pursuant to a Department-approved work plan. Such work plan shall require the submission of a final report upon conclusion of the measure.

(b) Bulk storage tanks and containment vessels.

(1) All known petroleum storage tanks on the site, which are under the ownership or control of the remedial party, shall be registered as set forth in section 612.2 of this title;

(2) All known chemical storage tanks on the site, which are under the ownership or control of the remedial party, shall be registered as set forth in section 596.2 of this title;

(3) All such known tanks that are out-of-service, which are under the ownership or control of the remedial party, shall be closed as set forth in section 613.9 of this title (in the case of petroleum storage tanks) or section 598.10 of this title (in the case of chemical storage tanks); and

(4) Where any contaminant is found to be stored on the site in containment vessels other than storage tanks (such as drums, transformers, sumps, and pits), or where petroleum storage tanks or chemical storage tanks are discovered on site during the course of the remedial program and such tanks contain any contaminant, such contaminants shall be removed and disposed of in accordance with all applicable State and federal requirements within a schedule approved by the Department.

(c) Source removal and control measures. The following is the hierarchy of source removal and control measures which are to be used, ranked from most preferable to least preferable:

(1) Removal and/or treatment. All sources, concentrated solid or semi-solid hazardous substances, dense non-aqueous phase liquid, light non-aqueous phase liquid and/or grossly contaminated media shall be removed and/or treated; provided however, if the removal and/or treatment of all such contamination is not feasible, such contamination shall be removed or treated to the greatest extent feasible.

(2) Containment. Any source remaining following removal and/or treatment set forth in this subdivision shall be contained; provided however, if full containment is not feasible, such source shall be contained to the greatest extent feasible.

(3) Elimination of exposure. Exposure to any source remaining following removal, treatment and/or containment set forth in this subdivision shall be eliminated through additional measures, including but not limited to, as applicable, the timely and sustained provision of alternative water supplies and the elimination of volatilization into buildings; provided however, if such elimination is not feasible such exposure shall be eliminated to the greatest extent feasible.

(4) Treatment of source at the point of exposure. Treatment of the exposure resulting from a source of environmental contamination at the point of exposure, as applicable, including but not limited to, wellhead treatment or the management of volatile contamination within buildings, shall be considered as a measure of last resort.

(d) Groundwater protection and control measures.

(1) On-site groundwater contamination. All remedial programs shall consider the protection of groundwater and will consider Department guidance including, but not limited to, any groundwater remediation strategy issued as set forth in ECL 15-3109. The following are the measures to be considered:

(i) source removal or control as set forth in subdivision (c) above.

(ii) groundwater quality restoration. Restoration of groundwater shall be evaluated to determine the feasibility of measures to restore groundwater quality to meet applicable standards and guidance.

(iii) plume containment/stabilization. All remedies shall, to the extent feasible, prevent the further migration of groundwater plumes, whether on-site or off-site; provided, however that a volunteer in the Brownfield Cleanup Program shall only be obligated to evaluate the feasibility of containing the plume on-site. The development of alternatives will include an evaluation of feasible remedial alternatives that can achieve groundwater plume containment/stabilization.

(2) Off-site source of groundwater contamination with no on-site source (or contribution).

(i) on-site groundwater contamination may be attributed to an off-site source if the Department determines that:

(a) no act of the remedial party has contributed to the upgradient contamination, or caused such contamination to become worse.

(b) there is an off-site source of contamination, located on one or more upgradient locations, that has impacted on-site groundwater as a result of the migration of the contaminant in, or on, the groundwater; and

(c) there is not an on-site source(s) that may be causing or contributing more than inconsequential amounts to the groundwater contamination.

(ii) where the Department has determined that the criteria in this paragraph have been satisfied, the remedial party shall:

(a) have no remedial responsibilities with respect to such groundwater contamination migrating under the site;

(b) continue to satisfy the conditions in subparagraph (2)(i) above;

(c) identify a remedy for the site which eliminates or mitigates, to the extent feasible, the impact of any off-site contamination entering the site.

(3) Off-site source of groundwater contamination with an on-site source (or contribution):

(i) on-site groundwater contamination may be attributed to both an on-site and an off-site source, if the Department determines that:

(a) there is an off-site source of contamination, located at one or more upgradient locations, that has impacted on-site groundwater as a result of the migration of the contaminant in, or on, the groundwater; and

(b) there is an on-site source(s) that may be contributing to the groundwater contamination; and

(ii) where the Department has determined that the criteria in subparagraph (3)(i) above exist, the remedial party shall:

(a) identify a remedy for the site which includes removal, containment or treatment of the on-site sources contributing to the groundwater contamination; and

(b) include in the remedy actions which eliminate or mitigate on-site environmental or public health exposures, to the extent feasible, resulting from any off-site contamination entering the site.

(4) Groundwater protection decision-making shall consider the following factors set forth at ECL 15-3109 and any groundwater strategy issued pursuant thereto:

(i) recognition that both short- and long-term remediation strategies may be necessary to address groundwater contamination;

(ii) identification of the long-term groundwater remedial activities that are required to be taken by the State pursuant to this Part for sites which the Department has determined pose a significant threat as set forth in section 375-2.7; and

(iii) establishment of criteria for the prioritization of long-term groundwater remediation activities to be performed by the Department. Such criteria shall include, but not be limited to:

(a) the current or reasonably anticipated future use of contaminated groundwater as drinking water,

(b) the current or reasonably anticipated future use of a groundwater aquifer into which contaminated groundwater is flowing as drinking water;

(c) the current or reasonably anticipated future use of contaminated groundwater for non-potable purposes including, but not limited to, recreational uses, institutional uses and agricultural or non-agricultural irrigation;

(d) community needs;

(e) feasibility of remediation; and

(f) protection of natural resources and minimizing the impairment of the resource; and

(iv) notwithstanding clauses (iii)(a) through (f) above, while the current use of groundwater as drinking water may be considered, the absence of such use shall not exclude the need for remediation.

(e) Scope of the investigation.

(1) The goals of a remedial investigation include, but are not limited, to the:

(i) delineation of the areal and vertical extent of the contamination at, and emanating from all media at the site and the nature of that contamination;

(ii) characterization of the surface and subsurface characteristics of the site, including topography, surface drainage, stratigraphy, depth to groundwater, and any aquifers that have been impacted or have the potential to be impacted;

(iii) identification of the sources of contamination, the migration pathways and actual or potential receptors of contaminants;

(iv) evaluation of actual and potential threats to public health and the environment;

(v) production of data of sufficient quantity and quality to support the necessity for, and the proposed extent of, remediation and to support the evaluation of proposed alternatives.

(2) Such investigation shall emphasize data collection, sampling and monitoring, as necessary, and includes but is not limited to:

(i) characterization of site geologic and hydrogeologic conditions, including groundwater flow, contaminant movement, and the response of the groundwater system to extraction;

(ii) assessment of the existing and potential impact of groundwater contamination on private or community water supply wells, surface water quality, air quality, and indoor air quality;

(iii) sampling and analysis necessary to gather sufficient information to evaluate human and environmental exposure pathways, as well as, any actual or potential adverse effects due to site contamination; and

(iv) delineation of the nature and extent of contamination sufficient to determine the necessity for, and the proposed extent of remediation, in order to support the development and evaluation of proposed alternatives in the remedy selection process.

(3) Historical data may be submitted in lieu of collecting new data or to supplement new data provided the appropriate quality assurance requirements are met and the data was collected in a manner consistent with appropriate sampling protocols. All information relevant to the ongoing work must be referenced in the reports including sampling protocols.

(f) Remedy selection. A remedy shall be selected upon consideration of these nine factors:

(1) Overall protectiveness of the public health and the environment.

(2) Standards, criteria and guidance. The remedy will:

(i) conform to standards and criteria that are generally applicable, consistently applied, and officially promulgated, that are either directly applicable, or that are not directly applicable but are relevant and appropriate, unless good cause exists why conformity should be dispensed with. Good cause exists if any of the following is present:

(a) the proposed action is only part of a complete program or project that will conform to such standard or criterion upon completion;

(b) conformity to such standard or criterion will result in greater risk to the public health or to the environment than alternatives;

(c) conformity to such standard or criterion is technically impracticable from an engineering perspective;

(d) the program or project will attain a level of performance that is equivalent to that required by the standard or criterion through the use of another method or approach; and

(ii) consider applicable Department guidance.

(3) Long-term effectiveness and permanence: a program or project that achieves a complete and permanent cleanup of the site is preferred over a program or project that does not do so.

(4) Reduction in toxicity, mobility or volume of contamination through treatment: a program or project that permanently and significantly reduces the toxicity, mobility or volume of contamination is to be preferred over a program or project that does not do so. The following is the hierarchy of technologies ranked from the most preferable to the least preferable:

(i) destruction, on-site or off-site;

(ii) separation or treatment, on-site or off-site;

(iii) solidification or chemical fixation, on-site or off-site; and

(iv) control and isolation, on-site or off-site.

(5) Short-term impacts and effectiveness.

(6) Implementability.

(7) Cost-effectiveness, including capital costs and annual site maintenance plan costs.

(8) Community acceptance.

(9) Land use, provided the Department determines that there is reasonable certainty associated with such use. In assessing reasonable certainty, the Department shall consider:

(i) the current, intended, and reasonably anticipated future land uses of the site and its surroundings in the selection of the remedy for soil remediation under the brownfield cleanup and environmental restoration programs, and may consider land use in the State superfund program, where cleanup to pre-disposal conditions is determined not feasible;

(ii) the Department's determination on the use of the site will be in accordance with subdivision 375-1.8(g);

(iii) the reasonably anticipated future use of the site and its surroundings, which shall be documented in the analysis of alternatives, taking into consideration factors including, but not limited to, the following:

(a) current use and historical and/or recent development patterns;

(b) applicable zoning laws and maps;

(c) brownfield opportunity areas as designated set forth in GML 970-r;

(d) applicable comprehensive community master plans, local waterfront revitalization plans as provided for in EL article 42, or any other applicable land use plan formally adopted by a municipality;

(e) proximity to real property currently used for residential use, and to urban, commercial, industrial, agricultural, and recreational areas;

(f) any written and oral comments submitted by members of the public on the proposed use as part of the activities performed pursuant to the citizen participation plan;

(g) environmental justice concerns, which for purposes of this subpart, include the extent to which the proposed use may reasonably be expected to cause or increase a disproportionate burden on the community in which the site is located, including low-income minority communities, or to result in a disproportionate concentration of commercial or industrial uses in what has historically been a mixed use or residential community;

(h) federal or State land use designations;

(i) population growth patterns and projections;

(j) accessibility to existing infrastructure;

(k) proximity of the site to important cultural resources, including federal or State historic or heritage sites or native american religious sites;

(l) natural resources, including proximity of the site to important federal, State or local natural resources, including waterways, wildlife refuges, wetlands, or critical habitats of endangered or threatened species;

(m) potential vulnerability of groundwater to contamination that might emanate from the site, including proximity to wellhead protection and groundwater recharge areas and other areas identified by the Department and the State's comprehensive groundwater remediation and protection program established in ECL article 15, title 31;

(n) proximity to flood plains;

(o) geography and geology; and

(p) current institutional controls applicable to the site.

(g) Use of a site. The use of a site, or portion of a site, shall be for either unrestricted or restricted use.

(1) Such uses fall into one of the following categories:

(i) "Unrestricted use" which is a use without imposed restrictions, such as environmental easements or other land use controls; or

(ii) "Restricted use" which is a use with imposed restrictions, such as environmental easements, which as part of the remedy selected for the site require a site management plan which relies on institutional controls or engineering controls to manage exposure to contamination remaining at a site.

(2) Restricted uses include:

(i) "Residential use" which is the land use category which allows a site to be used for any use other than raising live stock or producing animal products for human consumption. Restrictions on the use of groundwater are allowed, but no other institutional or engineering controls are allowed relative to the residential use soil cleanup objectives. This is the land use category which will be considered for single family housing;

(ii) "Restricted-residential use" which is the land use category which shall only be considered when there is common ownership or a single owner/managing entity of the site. Restricted-residential use:

(a) shall, at a minimum, include restrictions which prohibit:

(1) any vegetable gardens on a site, although community vegetable gardens may be considered with Department approval; and

(2) single family housing; and

(b) includes active recreational uses, which are public uses with a reasonable potential for soil contact;

(iii) "Commercial use" which is the land use category which shall only be considered for the primary purpose of buying, selling or trading of merchandise or services. Commercial use includes passive recreational uses, which are public uses with limited potential for soil contact; and

(iv) "Industrial use" which is the land use category which shall only be considered for the primary purpose of manufacturing, production, fabrication or assembly processes and ancillary services. Industrial use does not include any recreational component.

(3) The Department may approve a remedial program which relies upon no restrictions on use (unrestricted use) or on a range of restrictions on use (restricted uses). The following hierarchy represents the range from a less restrictive to a more restrictive land use:

(i) residential;

(ii) restricted-residential;

(iii) commercial; and

(iv) industrial.

(4) The Department's determination of the allowable use of a site as part of a remedial program:

(i) is not a determination by the Department relative to a specific future use;

(ii) is the least restrictive use of the site, as set forth in paragraph 3 above, allowed by such remedial program and would allow all more restrictive uses to occur on the site (e.g. a site cleanup to a commercial use would also be protective of industrial use); and

(iii) may disregard the remedial party's proposed use and approve a remedy upon a use which is consistent with existing zoning laws or maps.

(5) Where the use of the site proposed for a remedial program does not conform with applicable zoning laws or maps or the reasonably anticipated future use of the site as determined by the Department, the Department shall not approve a remedy based on such non-conforming use (e.g., the Department cannot approve a cleanup to commercial uses for a property with residential zoning), unless it:

(i) is based on a cleanup level that would require a less restrictive use of the site than would be allowed based upon current zoning laws or maps (e.g., the Department may approve a cleanup to residential levels for a property which is zoned for commercial use); or

(ii) can be shown to the Department's satisfaction that zoning changes are or will be sought, in which event the Department will conditionally approve the remedy but will not issue a certificate of completion until such use is consistent with existing zoning laws or maps.

(6) For purposes of determining the appropriate land use category, the remedial party will consider the nature of the uses and the activities which are occurring, or may occur, at the site:

(i) on the ground level of any structure;

(ii) on the surrounding land; or

(iii) in the subsurface to a depth of 15 feet below the surface of the site.

(h) Institutional controls, engineering controls and environmental easements.

(1) Institutional and engineering controls. A remedy that includes institutional controls and/or engineering controls must include the following:

(i) a complete description of any use restrictions and/or institutional controls, their role in achieving the remedial objectives of the remedy and the mechanisms that will be used to implement, maintain, monitor, and enforce such restrictions and controls;

(ii) a complete description of any engineering controls and any site management plan requirements, including the mechanisms that will be used to continually implement, maintain, monitor, and enforce such controls and requirements;

(iii) an evaluation of the reliability and viability of the long-term implementation, maintenance, monitoring, and enforcement of any proposed institutional or engineering controls and analysis of the costs of implementing, maintaining, monitoring and enforcing such controls, including costs that may be borne by state or local governments. To accomplish this:

(a) the remedial party must submit to the Department a detailed written estimate of the long-term cost, in current dollars, for implementing the institutional or engineering controls. The cost estimate must be based on the cost of implementing the institutional or engineering controls as set forth in the remedial work plan; and

(b) the cost estimate for implementing the institutional/engineering controls must reflect consideration of the size, type, and location of the area subject to the institutional or engineering controls; the remedy and the nature and extent of contamination subject to the institutional/engineering controls;

(iv) an analysis sufficient to support a conclusion that effective implementation, maintenance, monitoring and enforcement of institutional and/or engineering controls can be reasonably expected;

(v) where required by the Department, financial assurance, in accordance with subdivision 375-1.11(c), to ensure the long term implementation, maintenance, monitoring, and enforcement of any such controls; and

(vi) any engineering control must be used in conjunction with institutional controls to ensure the continued integrity of such engineering control.

(2) Environmental easements.

(i) Any institutional controls, engineering controls, use restrictions and/or any site management requirements applicable to the remedial site will be contained in an environmental easement, which shall be:

(a) created and recorded pursuant to ECL article 71, title 36;

(b) in a form and manner as prescribed by the Commissioner;

(c) in compliance with GOL 5-703(1) and ECL 71-3605(2); and

(d) recordable pursuant to RPL 291.

(ii) Agents, employees or other representatives of the State may enter and inspect the property burdened by an environmental easement with reasonable prior notice to the property owner, to assure compliance with the restrictions identified by the environmental easement.

(3) Institutional control/engineering control certification.

(i) The owner or the remedial party at a site at which institutional or engineering controls are employed as part of a remedy, must annually submit, unless an alternate certification period is provided in writing by the Department, a written certification:

(a) by a professional engineer, or by such other qualified environmental professional as the Department may find acceptable as set forth in ECL 27-1415(b); or

(b) where the only control is an institutional control on the use of the property, the certification may be made by the property owner.

(ii) The certification shall be included in a report summarizing the site management effort for the certification period, in such form and manner as the Department may require, and shall certify that:

(a) the inspection of the site to confirm the effectiveness of the institutional and engineering controls required by the remedial program was performed under the direction of the individual identified in subparagraph (3)(i) above.

(b) the institutional controls and/or engineering controls employed at such site:

(1) are in-place;

(2) are in the Department-approved format; and

(3) that nothing has occurred that would impair the ability of such control to protect the public health and environment;

(c) the owner will continue to allow access to such real property to evaluate the continued maintenance of such controls;

(d) nothing has occurred that would constitute a violation or failure to comply with any site management plan for such controls;

(e) the report and all attachments were prepared under the direction of, and reviewed by, the party making the certification;

(f) to the best of his/her knowledge and belief, the work and conclusions described in this certification are in accordance with the requirements of the site remedial program, and generally accepted engineering practices; and

(g) the information presented is accurate and complete.

(iii) Only one such certification shall be filed per site. If a site is comprised of multiple properties or parcels, the remedial party shall arrange to file one consolidated certification.

(iv) In the event that the certification cannot be provided due to a failure of one or more of the institutional or engineering controls, the Department will be provided:

(a) timely notification explaining the cause for such failure;

(b) a work plan to implement the corrective measures necessary in order to be able to provide the certification; and

(c) a schedule for those corrective measures.

(v) In addition to the periodic reporting requirement, the remedial party shall timely notify the Department of failures of one or more of the institutional or engineering controls and shall provide a work plan to remedy the failure of the institutional or engineering control. (vi) The work plan referenced in subparagraphs (iv) and (v) above will be reviewed by the Department as set forth in subdivision 375-1.6(d) and the corrective measures shall be implemented in accordance with the approved work plan. A certification, meeting the requirements of subparagraph (ii) above, shall be submitted upon completion of the corrective measures.

§375-1.9 Certificate of completion

(a) A certificate shall be issued for the real property constituting the site, upon a determination that the final engineering report is approved. The date of the approval of the final engineering report by the Department, as set forth in paragraph 375-1.6(c)(6), shall be the issuance date for the certificate of completion.

(b) The Department shall issue the certificate of completion to the remedial party which has signed the order, agreement or State assistance contract.

(c) A certificate of completion shall include all of the following:

(1) An acknowledgment that the requirements of the remedial program were satisfied or are expected to be satisfied in accordance with the time-frames contained in the approved remedial program;

(2) A description of the site by adequate legal description or by reference to a plat showing the boundaries, or by other means sufficient to identify site location with particularity;

(3) A prohibition against the use of the site in a manner inconsistent with any land use limitation imposed as a result of such remediation efforts without additional appropriate remedial activities;

(4) A statement that the Department's issuance of the certificate of completion entitles the remedial party to certain liability benefits as set forth in sections 375-2.9, 375-3.9 and 375-4.9; and

(5) A description of any engineering and institutional controls or site management activities required by the approved work plan and notification that failure to manage the controls or complete site management activities in compliance with the terms of the remedial program and the environmental easement for the site, may result in revocation of the certificate of completion.

(d) Recording of the certificate of completion.

(1) A notice of the certificate of completion must be recorded in the recording office for the county (or counties) where any portion of the site is located within 30 days of its issuance.

(2) Pursuant to RPL 317, the notice of the certificate of completion is deemed recorded when its delivered to the recording officer.

(3) Proof of such recording shall be submitted to the Department within 30 days after recording, or 30 days after the remedial party's receipt of such proof of filing from the county clerk, whichever is later.

(e) Modification or revocation of a certificate of completion.

(1) A certificate of completion may be modified or revoked by the Department upon a finding that:

(i) the remedial party has failed to manage the controls or monitoring in full compliance with the terms of the remedial program, as set forth in paragraph 375-1.9(c)(5);

(ii) there has been a failure to comply with the terms and conditions of any order, agreement or State assistance contract executed by the Department;

(iii) there was a misrepresentation of a material fact tending to demonstrate that the cleanup levels were reached;

(iv) the terms and conditions of the environmental easement have been intentionally violated; or

(v) for good cause.

(2) If the Department seeks to modify or vacate a certificate of completion, it shall:

(i) provide notice to the certificate holder which shall specify the basis for the Department's proposed action and facts in support of that action; and

(ii) mail notices by certified mail.

(3) The certificate holder may seek relief from the notice as set forth in sections 375-2.9, 375-3.9 and 375-4.9.

(f) Transfer of a certificate of completion. A certificate of completion may be transferred to successors and assigns of the remedial party or parties named in the certificate.

(1) The Department shall be provided:

(i) Advance notice as set forth in subdivision 375-1.11(d); and

(ii) Within 30 days of the transfer, a notice of transfer, on a Department-approved form, shall be filed in accordance with the filing requirements of the original certificate set forth in subdivision (d) of this section.

(2) Upon filing of the notice, the certificate of completion shall be deemed issued to the successor or assign.

(g) Any party to whom a certificate of completion is transferred shall be responsible for the operation and maintenance of any required engineering controls and compliance with all required institutional controls, in accordance with the approved site management plan and environmental easement.

§375-1.10 Citizen participation

(a) To facilitate the remedial process and enable citizens to participate more fully in decisions that affect their health, the Department will require the provision of opportunities for citizen involvement and will encourage consultation with the public early in that process before the Department forms or adopts final positions. The primary goals of the citizen participation program at sites are to facilitate two-way communication between the Department and individuals, groups, and organizations that have expressed interest in or are affected by the site or the site's program, in the decision-making process associated with the remediation of sites. The Department will require that opportunities for public involvement be included in the development and implementation of a remedy.

(b) All remedial programs shall include citizen participation activities which, at a minimum, shall include, but are not limited to, the preparation of a citizen participation plan, establishment of a document repository and public notice with a prescribed comment period at select milestones. Program specific requirements for these and other citizen participation activities are set forth under each of the subparts of this rule.

(c) The design of any citizen participation plan, including the level of citizen involvement and the tools utilized, shall take into account the scope and scale of the proposed remedial program, local interest and history, and other relevant factors. While retaining flexibility, citizen participation plans shall embody the following principles of meaningful citizen participation:

(1) Opportunities for citizen involvement should be provided as early as possible in the decision-making process prior to the selection of a preferred course of action by the Department and/or the remedial party;

(2) Activities proposed in such plan should be as reflective of the diversity of interests and perspective found within the community as possible, allowing the public the opportunity to have their views heard and considered, which may include opportunities for dialogue; and

(3) Full, timely, and accessible disclosure and sharing of information by the Department shall be provided, including the provision of technical data and the assumptions upon which any analyses are based.

(d) Within 20 days of the effective date of the order, agreement or State assistance contract, the remedial party shall submit a citizen participation plan which shall include the following minimum elements:

(1) A site contact list;

(2) The name and address of a document repository and proof of acceptance of this designation by the repository;

(3) Overview of the site's history and contamination issues;

(4) Identification of major issues of public concern related to the site and a description of any mitigation planned to address the issues, if appropriate;

(5) A description and schedule of the major elements of the site's remedial program;

(6) A description and schedule of citizen participation activities conducted or planned relative to the site; and

(7) A description and schedule of any additional citizen participation activities needed to address public concerns.

(e) All citizen participation plans and fact sheets required by the Department will be subject to Department review and approval. The citizen participation plan will be updated during the implementation of the remedial program.

(f) Document repository. A document repository shall be established at a location accessible to citizens where they can review the remedial program documents.

(1) Documents shall be placed in the repository, which are:

(i) approved by the Department as set forth in subdivision 375-1.6(d); or

(ii) otherwise designated by the Department for inclusion.

(2) The remedial party shall ensure that all appropriate documents are in the repository.

(3) The Department may allow an internet repository to be used to satisfy this requirement.

(g) Comment period extensions.

(1) The Department shall consider a request to extend a comment period provided such request is received within 5 days prior to the identified end of the comment period.

(2) The time allotted for extensions shall not be greater than 30 days.

(3) Additional notice is not required upon granting an extension.

(h) Interim remedial measures. 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.

§375-1.11 Miscellaneous

(a) Submissions to the Department. All work plans; reports, including all attachments and appendices, and certifications, submitted by a remedial party shall be submitted in print, as well as in an electronic format acceptable to the Department.

(b) Prohibitions.

(1) It is a violation to obstruct or attempt to obstruct any duly designated officer or employee of the Department or of any other State agency, or any agent, consultant, contractor or other person, including an employee, agent, consultant or contractor of a remedial party acting at the direction of the Department, or so authorized in writing by the Department, acting as set forth in ECL article 27 or ECL article 56, title 5 or any combination of same.

(2) It is a violation to engage in any activity that will, or that is reasonably:

(i) anticipated to, prevent or interfere significantly with any proposed, ongoing, or completed remedial program at any site; or

(ii) foreseeable to, expose the public health or the environment to a significantly increased threat of harm or damage at any site.

(c) Financial assurance.

(1) Applicability. The Department may require, as a condition of accepting an institutional or engineering controls, that the remedial party post financial assurance to ensure the long term implementation, maintenance, monitoring, and enforcement of any such controls. In considering whether to require financial assurances, the Department will consider factors including, but not limited to:

(i) whether one or more innovative technologies have been employed at the site;

(ii) the length of time to implement the remedial program;

(iii) the cost of the remedial program;

(iv) the complexity of the remedial program; and

(v) the financial viability of the remedial party.

(2) Financial assurance required under this Part shall be in effect and on file with the Department before any certificate of completion is issued. Allowable financial assurance mechanisms include:

(i) trust funds;

(ii) surety bond guaranteeing payments;

(iii) letters of credit;

(iv) insurance; or

(v) documentation of a financial capability test, as set forth in paragraph 373-2.8(d)(5) of this title.

(3) Preparation of estimated amount of financial assurance. If the Department requires posting of financial assurance as a condition of accepting institutional or engineering controls, the remedial party shall provide an estimated amount of financial assurance for the Department's consideration. Such party is responsible for having a professional engineer or other qualified individual prepare the estimate, and in the event the financial assurance is being provided through environmental insurance, an independent insurance professional shall provide a certification that such policy will meet the requirements of this section. The estimate must include an itemized listing of each cost and how the cost was calculated, including the cost of contracting with a third party.

(4) Department review of estimated amount of financial assurance. Upon receipt of the financial assurance estimate, the Department shall review the estimate and shall assess the basis for the type and extent of impacts used in calculations, and whether the estimated amount is sufficient. The Department may accept, modify, or reject the financial assurance estimate.

(5) Submittal of financial assurance. After approval of the financial assurance amount and prior to the Department's issuance of a certificate of completion, the remedial party must submit an originally signed financial assurance mechanism to the Department. The mechanism must be in effect when submitted. A remedial party may satisfy this requirement by establishing one or more financial assurance mechanisms. If multiple financial assurances are used, the remedial party shall specify at least one such assurance as "primary" coverage and shall specify the other assurance as "excess." Additionally, a remedial party with obligations for providing financial assurances for multiple sites can combine the required financial assurances for all sites into one or more financial assurance mechanisms.

(6) Adjustment of amount of financial assurance. The dollar amount of financial assurance shall be reviewed at least once every five years. During the review, the Department may adjust the amount for inflation based on the United States consumer price index. In addition, the remedial party may request that the amount of financial assurance be adjusted based on factors occurring since the posting of the existing financial assurance. The remedial party shall describe in writing the basis for the adjustment request.

(7) Release of financial assurance. The Department may release the requirement for financial assurance or a portion of the requirement for financial assurance, and in doing so shall;

(i) notify the remedial party in writing of any release or modification;

(ii) modify the financial assurance requirement to reflect the release or modification of the financial assurance required; and

(iii) return to the remedial party such released financial assurance, if applicable, with the notice.

(8) Substitution of financial assurance. If the remedial party requests substitution of one type of financial assurance for another, such party shall submit to the Department a proposal for alternate financial assurance. The alternate financial assurance must be as secure or more secure than the existing financial assurance as determined by the Department. Upon approval and receipt of the alternate financial assurance by the Department, the Department shall release the existing financial assurance and the Department shall notify the remedial party in writing.

(d) Change of use.

(1) At least 60 days before a change of use at a site, as defined in sections 375-2.11, 375-3.11 and 375-4.11, the person proposing to make such change of use shall provide written notification to the Department.

(2) The notice shall advise the Department of the contemplated change, including, but not limited to, explaining how such change may affect the site`s proposed, ongoing, or completed remedial program.

(3) Where such change results in a change in ownership or responsibility for the proposed, ongoing, or completed remedial program:

(i) such notice shall certify that the prospective purchaser has been provided a copy of any order, agreement or State assistance contract as well as a copy of all approved remedial work plans and reports; and

(ii) within 15 days of the transfer of all or part of the site, an additional notice shall be submitted to the Department which includes but is not limited to the name of the new owner and the new owner's contact information, including a contact representative and the contact information for such representative.

(e) Effective date of submissions and notices.

(1) Unless otherwise provided, the effective date of submissions and notices required under this Part shall be the date of receipt as defined herein.

(2) The date of receipt of any writing or notice by the Department to the remedial party shall be:

(i) if served in hand, the date delivered to the remedial party or its designated representative;

(ii) if mailed, 5 days after the mailing.

(3) The date of receipt of any submission to the Department by the remedial party shall be

(i) if served in hand, the date delivered to the Department's Office at 625 Broadway, Albany, New York or to the appropriate regional office of the Department;

(ii) if mailed, 5 days after the mailing.

(f) Remedial activities which were approved by the Department prior to the effective date of this rule shall be completed in a manner consistent with such approval.

§375-1.12 Permits

(a) When the Department develops and implements a remedial program set forth in ECL 27-1313(1); ECL 27-1313(5); ECL 27-1411(5); or ECL 56-0509(4), the Department shall be exempt from the requirement to obtain any Department issued permits for sites if:

(1) The activity is conducted on the site or on premises that are under common control or are contiguous to or physically connected with the site and the activity manages exclusively contamination which the Department is handling as part of the site remedial program;

(2) All substantive technical requirements applicable to like activity conducted, as set forth in a permit, are complied with, as determined by the Department; and

(3) The activity is a component of a program selected by a process complying with the citizen participation requirements of section 375-1.10, to the extent applicable.

(b) The Department may exempt a remedial party from the requirement to obtain any Department issued permits for sites if:

(1) The activity is conducted on the site or on premises that are under common control or are contiguous to or physically connected with the site and the activity manages exclusively contamination which the remedial party is handling as part of the site remedial program;

(2) All substantive technical requirements applicable to like activity conducted pursuant to a permit are complied with, as determined by the Department; and

(3) The activity is a component of a program selected by a process complying with the citizen participation requirements of section 375-1.10, to the extent applicable.

(c) The Department will require a remedial party obtain applicable State and local permits which are not issued by the Department unless there is a demonstration that obtaining such State or local permit will substantially delay the project or present a hardship, then the Department may exempt the party from the need to obtain such State or local permits provided:

(1) The remedial program or activity is conducted on the site or on premises that are under common control or are contiguous to or physically connected with the site and the activity manages exclusively contamination which the Department or remedial party is handling as part of the site remedial program;

(2) All substantive technical requirements applicable to like activity conducted pursuant to a permit are complied with, as determined by the Department; and

(3) The activity is a component of a program selected by a process complying with the citizen participation requirements of section 375-1.10, to the extent applicable.

(d) Where a permit exemption is applicable or granted, as set forth in this section, the Department may require a remedial party follow the Department application process even if no formal permit would be issued.

(e) If, in the course of implementing a remedial program, any storage tank(s) subject to regulation under Parts 596 through 599 or 612 through 614 of this title, are discovered and found not to be registered or not being operated in accordance with the applicable regulatory requirements, such tank(s) shall be registered and either closed in accordance with regulatory requirements or brought into compliance with the applicable regulatory requirements. These requirements:

(1) Apply in full to the remedial program at a site when a responsible party or a participant as defined in paragraph 375-3.2(b)(1), implements a remedial program pursuant to ECL 27-1313(1); ECL 27-1313(5); or ECL 27-1411(5); or

(2) Apply in full except that payment of a registration fee shall not be required where the Department funds all or part of a remedial program pursuant to ECL 27-1313(1); ECL 27-1313(5); or ECL 56-0503, or a volunteer as defined in paragraph 375-3.2(b)(2) undertakes the remedial program, provided the tank(s) is to be closed as part of the remedial program for the site.

(f) All required federal permits must be obtained.