N.Y. Comp. Codes R. & Regs. Tit. 6 §§ 375-1.8

Current through Register Vol. 46, No. 45, November 2, 2024

Section 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 of this Part. 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 section 375- 1.2(af) of this Subpart.

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

(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) of this section.

(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) of this section;

(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 of this section;

(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) of this subdivision;

(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 (i) of this paragraph 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 decisionmaking 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) of this paragraph, 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 aerial 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 (g) of this section;

(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 three of this subdivision, 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 section 375-1.11(c) of this Subpart, 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 R PL 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 (i) of this paragraph.

(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) of this paragraph will be reviewed by the department as set forth in section 375-1.6(d) of this Subpart and the corrective measures shall be implemented in accordance with the approved work plan. A certification, meeting the requirements of subparagraph (ii) of this paragraph, shall be submitted upon completion of the corrective measures.

N.Y. Comp. Codes R. & Regs. Tit. 6 §§ 375-1.8