N.Y. Comp. Codes R. & Regs. Tit. 6 §§ 375-2.7

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

Section 375-2.7 - Significant threat and registry determinations

(a) Significant threat.

(1) The commissioner may find that contaminants disposed at a site constitute a significant threat to public health or the environment if, after reviewing the available evidence and considering the factors the commissioner deems relevant set forth in this section, the commissioner determines that the contaminants disposed at the site or coming from the site result in, or are reasonably foreseeable to result in, any of the following:

(i) a significant adverse impact upon endangered species, threatened species, or species of concern, as defined in section 182.2 of this Title; or

(ii) a significant adverse impact upon protected streams and navigable waters as defined in section 608.1 of this Title, or tidal wetlands as defined in section 661.4(hh) of this Title, or freshwater wetlands as defined in section 663.2(p) of this Title or significant fish and wildlife habitat areas as defined in section 602.5(a) of 19 NYCRR; or

(iii) a bioaccumulation of contaminants in flora or fauna to a level that causes, or that materially contributes to, significant adverse ecotoxicological effects in flora or fauna or leads, or materially contributes, to the need to recommend that human consumption be limited; or

(iv) contaminant levels that cause significant adverse acute or chronic effects to fish, shellfish, crustacea, and wildlife; or

(v) a significant adverse impact to the environment due to a fire, spill, explosion, or similar incident or a reaction that generates toxic gases, vapors, fumes, mists, or dusts; or

(vi) a significant adverse impact to public health, where the site is near residences, recreational facilities, public buildings or property, school facilities, places of work or worship, or other areas where individuals or water supplies may be present, and the New York State Department of Health has determined that the presence of contaminants on such site pose a significantly increased risk to the public health.

(2) The commissioner may also find that contaminants disposed at a site constitute a significant threat to the environment if, after reviewing the available evidence and considering the factors the commissioner deems relevant set forth in this subdivision, the commissioner determines that the contaminants disposed at the site or coming from the site result in, or are reasonably foreseeable to result in, significant environmental damage.

(3) In making a finding under this subdivision as to whether a significant threat to the environment exists, the commissioner may take into account any or all of the following factors, as may be appropriate under the circumstances of the particular situation:

(i) all data and information related to the factors, individually or in combination, set forth in paragraph (1) of this subdivision;

(ii) the duration, areal extent, or magnitude of severity of the environmental damage that may result from a release of contaminants;

(iii) type, mobility, toxicity, quantity, bioaccumulation, and persistence of contaminants present at the site;

(iv) manner of disposal of the contaminants;

(v) nature of soils and bedrock at and near the site;

(vi) groundwater hydrology at and near the site;

(vii) location, nature, and size of surface waters at and near the site;

(viii) levels of contaminants in groundwater, surface water, sediments, air, soil vapor and soils at and near the site and areas known to be directly affected or contaminated by waste from the site, including, but not limited to, contravention of: surface water and groundwater quality standards set forth in Part 703 of this Title and drinking water standards set forth in Subpart 5-1 and Part 170 of 10 NYCRR;

(ix) proximity of the site to residences, recreational facilities, public buildings or property, school facilities, places of work or worship, and other areas where individuals may be present;

(x) the extent to which contaminants and/or contaminant constituents have migrated or are reasonably anticipated to migrate from the site;

(xi) the proximity of the site to areas of critical environmental concern (such as, wetlands or aquifers);

(xii) the potential for wildlife or aquatic life exposure that could cause an increase in morbidity or mortality of same;

(xiii) the integrity of the mechanism, if any, that may be containing the contaminants to assess the probability of a release of the contaminants into the environment; and

(xiv) the climatic and weather conditions at and in the vicinity of the site.

(4) The mere presence of contaminants at a site or in the environment is not a sufficient basis for a finding that contaminants disposed at a site constitute a significant threat to the environment.

(5) In making a finding under ECL 27-1313(3)(b)(ii) that a significant threat to the environment presents an imminent danger of causing irreversible or irreparable environmental damage, the commissioner must first find that:

(i) the contaminants disposed at the site constitute a significant threat to the environment;

(ii) there is insufficient time within which to start and complete all administrative procedures to establish an identified responsible party's liability to devise and implement a program for the site, and to start and complete all measures necessary to contain, alleviate, or end the threat to life or health or to the environment sought to be averted, including (if the department, in its discretion, believes it to be cost-effective) the development and implementation of a remedial program; and

(iii) the nature of the significant environmental damage reasonably foreseeable to occur if no action were to be taken to avert a release or further release of contaminants into the environment is such, with respect to the component of the environment reasonably foreseeable to be adversely affected, either as to be of long duration; or that the component of the environment reasonably foreseeable to be affected cannot be fully restored to pre-release conditions.

(6) In making a finding under ECL 27-1313(3)(b)(ii) that a significant threat to the environment is causing irreversible or irreparable environmental damage, the commissioner must first find that:

(i) significant environmental damage has occurred; and

(ii) the nature of that environmental damage is such, with respect to the component of the environment adversely affected, either as to be of long duration; or that the component of the environment affected cannot be fully restored to pre-release conditions.

(7) In making a finding under ECL 27-1313(3)(b)(iii) that the significant threat to the environment posed by contaminants disposed at a site makes it prejudicial to the public interest to delay action until a proceeding can be held as set forth in ECL article 27, title 13, the commissioner must determine either that further environmental damage is reasonably anticipated to result during such a hearing; or that, if environmental damage has not yet occurred, such is reasonably anticipated to occur during the pendency of the proceeding.

(b) Site classification.

(1) The department shall maintain and make available for public inspection a Registry of inactive hazardous waste disposal sites, in accordance with ECL 27-1305. The department will include information on such Registry, including but not limited to, the site description, land use, acreage, and contaminants disposed.

(2) The Registry maintained by the department must include all sites, except as provided in subdivision (c) of this section, known to the department at which contaminants, as defined in section 375-2.2(b) of this Subpart have been confirmed to have been disposed in an amount that:

(i) presently constitutes a significant threat to public health or the environment, as described in subdivision (a) of this section; or

(ii) is reasonably foreseeable to constitute a significant threat to public health or the environment.

(3) The department will, based upon the information available, classify sites according to the following criteria:

(i) a class "1" site is one at which:

(a) contamination constitutes a significant threat to public health or the environment; and

(b) the significant threat to public health or environment is causing, or presents an imminent danger of causing, either irreversible or irreparable damage to the environment

(ii) a class "2" site is one at which contamination constitutes a significant threat to public health or the environment, as described in subdivision (a) of this section;

(iii) a class "3" site is one at which contamination does not presently, constitute a significant threat to public health or the environment, as described in subdivision (a) of this section;

(iv) a class "4" site is one that has been properly closed but that requires continued site management, consisting of operation, maintenance, and monitoring;

(v) a class "5" site is one that has been properly closed and requires no further action.

(4) The department will investigate such areas or structures which it has reason to believe may need to be included in the Registry and may establish an administrative category for such areas or structures.

(5) The Registry is informational in nature, and a site is not required to be on the Registry to confer jurisdiction for action by the department according to statute or its implementing regulations.

(6) When final decisions concerning an initial site listing or classification are made, the department shall provide notice:

(i) to the owner of the site or an area of the site by certified mail, 15 days prior to public noticing such listing decision; and

(ii) to the site contact list, in a timely manner, after the listing decision is complete or, if a site contact list has not been developed, by publication in a local newspaper, as well as notice to the adjacent property owners, the chief executive officer of the city, town or village and the public water supplier, if any, in which the site is located.

(7) Any person may provide to the department, and the department shall consider, information relevant to a site listed in the Registry or to an area or structure which may need to be included in the registry.

(8) In classifying the site, the department may:

(i) disregard any amelioration of conditions at such site accomplished by the interim remedial measure unless the interim remedial measure achieves the goal of the remedial program for such site as described in subdivisions (a) and (b) of this section; and

(ii) base its determination upon facts and circumstances known to the department to have existed at any time since the date upon which such site was first listed in the registry that demonstrate the highest relative priority of the need for action at such site; and

(9) The Registry may be updated by adding, deleting or reclassifying sites at any time, in accordance with this section.

(c) Site classification deferral.

(1) The department will defer the assessment or reassessment of sites for inclusion on the registry which are the subject of an application for, negotiations for, or implementation of:

(i) a brownfield site cleanup agreement as set forth in ECL article 27, title 14; or

(ii) a State assistance contract for an environmental restoration project.

(2) The deferral will continue for so long as the remedial party is in compliance with the terms of such agreement or State assistance contract.

(3) The department shall assess or reassess such site upon termination of the agreement or State assistance contract.

(d) Site reclassification or modification.

(1) Site reclassification. The department may review the classification of any site on the Registry at any time, but must review the classification of each site on the Registry at least annually not later than March 31st of each year. Notification of the reclassification of a site will be provided in accordance with paragraph (b)(6) of this section.

Site modification. The site boundary description in the Registry will be revised by the department as appropriate based upon:

(i) new information regarding the nature and extent of contamination present at the site; or

(ii) a portion of the site being remediated to allow the unrestricted use of that portion of the site.

(e) Site delisting.

(1) The department will not delete any site from the Registry without providing, at least 60 days prior to the proposed delisting, written notice to:

(i) the owner or operator of the site;

(ii) the public by publication of a notice in the Environmental Notice Bulletin and newspaper of general circulation in the county in which the site is located; and

(iii) the site contact list. If a site contact list has not been developed, the department will provide notice in accordance with section 375-2.7(b)(6)(ii) of this Subpart.

(2) The department shall provide an opportunity for submittal of written comments on the proposed delisting, of at least 30 days, and may provide an opportunity to provide oral comments at a public meeting.

(3) The department shall make publicly available a summary of any comments received.

(4) The department may delist a site if:

(i) the site characterization or remedial investigation does not confirm that the requirements of paragraph (b)(2) of this section are satisfied;

(ii) a certificate of completion has been issued and:

(a) no environmental easement is required; or

(b) an environmental easement and site management plan are required; and such documents only require institutional controls, with periodic certification, in the form of land use or groundwater use restrictions.

(5) Sites which are delisted with institutional controls, as set forth in subparagraph (4)(ii) of this subdivision, remain subject to the change of use provisions as set forth in section 375-1.11(d).

(f) Petitions.

(1) The only person who has standing to make a petition is:

(i) a current owner; or

(ii) a responsible party by virtue of being the current operator, or former owner or operator of a site.

(2) Only the following relief may be sought by a petition:

(i) the deletion of a site from the Registry;

(ii) the reclassification of a site to a different class on the Registry; or

(iii) the modification of any information concerning a site on the Registry.

(3) The department will act only upon a complete petition.

(i) To be complete, a petition must be submitted by a person identified in paragraph (1) of this subdivision and must seek only relief identified in paragraph (2) of this subdivision upon the basis of material factual allegations supported by proof that tends to establish the right to the relief sought.

(ii) If the relief being sought is identified in subparagraph (2)(i) or (ii) of this subdivision, the proof must be in the form of an affidavit made by a person having direct knowledge of, or who is an expert with regard to, the subject of the matters covered by the petition.

(4) A petition is a written instrument that is filed with the department.

(5) After receipt of a complete petition, the department shall not later than:

(i) 15 calendar days after receipt, publish notice thereof in the environmental notice bulletin, including a deadline not less than 15 nor more than 21 calendar days after the date of publication for submission of written comments on the petition including any request for an administrative hearing; and

(ii) 45 calendar days after receipt of a complete petition, the department shall either:

(a) determine to decide the petition summarily; in such case, the department will proceed to decide the petition, and provide its decision to the petitioner not later than 30 calendar days after such determination; or

(b) if a significant degree of public interest exists, determine that the petition should not be decided summarily and that an administrative hearing should be convened on a date not more than 90 calendar days after receipt of a complete petition; in such case, not sooner than 30 calendar days before such hearing, the department shall notify the petitioner and all other persons known by the department to be proper petitioners of the department's intent to convene such hearing, publish notice thereof in the environmental notice bulletin, and require the petitioner to publish notice thereof at the petitioner's expense in a newspaper of general circulation in the county in which the site is located. Such hearing shall be conducted on the petition and the response thereto by program staff, if any. The burden of proof in such hearing shall be on the petitioner. Upon the conclusion of such hearing, the designated appeal individual will decide the petition, and provide the decision to the petitioner not later than 30 calendar days after the conclusion. The decision of the designated appeal individual shall be the final agency action. The designated appeal individual to conduct such hearing is the assistant director of the division of environmental remediation, or such other individual as may be designated, with complete discretion to regulate the course of such hearing in any fair and impartial manner, including without limitation the discretion to determine the admissibility of evidence and to preclude or restrict oral argument.

(6) The department shall comply with the provisions under subdivision (b) or (c) of this section prior to changing the site classification or listing.

N.Y. Comp. Codes R. & Regs. Tit. 6 §§ 375-2.7