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S T A T E O F N E W Y O R K ____________________________________________________________________ CHAPTER 1 OF THE LAWS OF 2003 as corrected and amended by CHAPTER 577 OF THE LAWS OF 2004 ___________ Section 1. This act enacts into law major components of legislation relating to issues deemed necessary for the state. Each component is wholly contained within a Part identified as Parts A through I. The effective date for each particular provision contained within such Part is set forth in the last section of such Part. Any provision in any section contained within a Part, including the effective date of the Part, which makes reference to a section "of this act", when used in connection with that particular component, shall be deemed to mean and refer to the corresponding section of the Part in which it is found. Section three of this act sets forth the general effective date of this act. PART A Section 1. Article 27 of the environmental conservation law is amended by adding a new title 14 to read as follows: TITLE 14 BROWNFIELD CLEANUP PROGRAM SECTION 27-1401. Short Title. 27-1403. Declaration of Policy and Findings of Fact. 27-1405. Definitions. 27-1407. Request For Participation. 27-1409. Brownfield Site Cleanup Agreement. 27-1411. Work Plan Requirements. 27-1413. Alternatives Analysis. 27-1415. Remedial Program Requirements. 27-1417. Citizen Participation. 27-1419. Certification of Completion. 27-1421. Liability Limitation. 27-1423. Payment of State Costs. 27-1425. Change of Use. 27-1427. Reserved. 27-1429. Permit Waivers. 27-1431. Access to Sites. S 27-1401. Short Title. This title shall be known and may be cited as the “Brownfield Cleanup Program". S 27-1403. Declaration of Policy and Findings of Fact. The legislature hereby finds that there are thousands of abandoned and likely contaminated properties that threaten the health and vitality of the communities they burden, and that these sites, known as brownfields, are also contributing to sprawl development and loss of open space. It is therefore declared that, to advance the policy of the State of New York to conserve, improve, and protect its natural resources and environment and control water, land, and air pollution in order to enhance the health, safety, and welfare of the people of the state and their overall economic and social well being, it is appropriate to adopt this act to encourage persons to voluntarily remediate brownfield sites for reuse and redevelopment by establishing within the department a statutory program to encourage cleanup and redevelopment of brownfield sites. All remedies shall be fully protective of public health and the environment including, but not limited to, groundwater according to its classification pursuant to Section 17-0301 of this chapter. A remedial program that achieves a permanent cleanup of a contaminated site, including the restoration of groundwater to its classified use, is to be preferred over a remedial program that does not do so. It is the intent of the legislature that the provisions of this Brownfield Cleanup Program shall not be construed as limiting or otherwise affecting any authority conferred upon the department by any other provision of law. S 27-1405. Definitions. 1. "Applicant" shall mean a person whose request to participate in the Brownfield Cleanup Program under this title has been accepted by the department: (a) "Participant" shall mean an applicant who either: (I) was the owner of the site at the time of the disposal or discharge of contaminants or (II) is otherwise a person responsible according to applicable principles of statutory or common law liability, unless such person’s liability arises solely as a result of such person’s ownership or operation of or involvement with the site subsequent to the disposal or discharge of contaminants. (b) "Volunteer" shall mean an applicant other than a participant, including without limitation a person whose liability arises solely as a result of such person’s ownership or operation of or involvement with the site subsequent to the disposal or discharge of contaminants, provided however, such person exercises appropriate care with respect to contamination found at the facility by taking reasonable steps to: (i) stop any continuing release; (ii) prevent any threatened future release; and (iii) prevent or limit human, environmental, or natural resource exposure to any previously released contamination. 2. "Brownfield Site" or “Site” shall mean 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: (a) listed in the registry of inactive hazardous waste disposal sites under section 27-1305 of this article at the time of application to this program and given a classification as described in subparagraph one or two of paragraph b of subdivision two of section 27-1305 of this article; provided, however except until July first, two thousand five, real property listed in the registry of inactive hazardous waste disposal sites under subparagraph two of paragraph b of subdivision two of section 27-1305 of this article prior to the effective date of this article, where such real property is owned by a volunteer shall not be deemed ineligible to participate and further provided that the status of any such site as listed in the registry shall not be altered prior to the issuance of a certificate of completion pursuant to section 27-1419 of this title; (b) listed on the national priorities list established under authority of 42 U.S.C. section 9605; (c) subject to an enforcement action under title seven or nine of this article, except a treatment, storage or disposal facility subject to a permit; provided, that nothing herein contained shall be deemed otherwise to exclude from the scope of the term “Brownfield Site” a hazardous waste treatment, storage or disposal facility having interim status according to regulations promulgated by the commissioner; (d) subject to an order for cleanup pursuant to article twelve of the navigation law or pursuant to title ten of article seventeen of this chapter except such property shall not be deemed ineligible if it is subject to a stipulation agreement; or (e) subject to any other on-going state or federal environmental enforcement action related to the contamination which is at or emanating from the site subject to the present application. 3. "Brownfield Site Contact List"
shall mean 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, 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. For
the purposes of this section "Water Supplier" means any public
water system as such term is defined for the purposes of the sanitary code of
the state of 4. "Brownfield Site Cleanup Agreement" shall mean an agreement executed in accordance with section 27-1409 of this title by an applicant and the department for the purpose of completing a brownfield site remedial program. 5. "Brownfield Site Remedial Program" or "Remedial Program" shall mean all remedial activities or actions undertaken to eliminate, remove, treat, abate, control, manage, or monitor contamination at or emanating from a brownfield site, including, but not limited to, the following: (a) remedial investigation and remedy selection activities needed to develop such a program; (b) design activities; (c) construction activities including without limitation grading, contouring, trenching, grouting, capping, excavating, transporting, incinerating, thermally treating, chemically treating, biologically treating, constructing leachate collection and treatment systems or application of innovative technologies approved by the department; (d) interim remedial measures; (e) post-construction operation, maintenance, and monitoring; (f) restoration of the environment; (g) involvement by local governments of jurisdiction and by the general public; or (h) oversight by the department. 6. "Citizen Participation Plan" shall mean the description of citizen participation activities prepared and carried out pursuant to Section 27-1417 of this title. 7. "Concentrated Solid or Semi-Solid Hazardous Wastes" shall mean solid or semi-solid hazardous wastes present in surface or subsurface soil, surface water or groundwater in a concentrated form, such as precipitated metallic salts, metal oxides, or chemical sludges. 7-a. “Contaminant” shall mean hazardous waste and/or petroleum as such terms are defined in this section. 8. "Contamination" or "Contaminated" shall mean the presence of a contaminant in any environmental media, including soil, surface water, groundwater, air, or indoor air. 9. "Dense Non-Aqueous Phase Liquid" or "DNAPL" shall mean a hazardous waste that is a liquid that is denser than water and does not dissolve or mix easily in water. 10. "Document Repository" shall mean a repository of brownfield site remedial program documents approved by the department or released for public notice established in a publicly accessible building near the location of the site. 11. "Engineering Control" shall mean 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. 12. "Feasible" shall mean suitable to site conditions, capable of being successfully carried out with available technology, implementable and cost effective. 13. "Financial Assurance" shall include but not be limited to surety bonds, trust funds, letters of credit, insurance or a multiple of financial mechanisms as determined to be adequate by the department. 14. "Free Product" shall mean an immiscible non-aqueous phase liquid other than a dense non-aqueous phase liquid present as a liquid, in surface or sub-surface soil, surface water or groundwater in a potentially mobile state. 15. "Grossly Contaminated Soil" shall mean soil which contains free product or residual contamination which is identifiable visually, through the perception of odor, by elevated contaminant vapor levels, by field instrumentation, or is otherwise readily detectable. 16. "Groundwater" shall mean 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. 17. "Hazardous Waste" shall mean a hazardous waste as defined in section 27-1301 of this article. 18. "Institutional Control" shall mean 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 brownfield site. 19. "Interim Remedial Measures" shall mean 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, free product recovery systems, or leachate collection systems; construction of fences or other barriers; installation of water filters; provision of alternative water systems; the removal of free product; or plume control. 20. "Light Non-Aqueous Phase Liquid" or "LNAPL" shall mean a contaminant that is a liquid that is lighter than water and does not dissolve or mix easily in water. 21. "Municipality" shall mean a local public authority or public benefit corporation, a county, city, town, village, school district, supervisory district, district corporation, improvement district within a county, city, town or village or Indian nation or tribe recognized by the United States with a reservation wholly or partly within the boundaries of the state, or any combination thereof. 22. "Newspaper Notice" shall mean the placement of a prominently located, paid newspaper advertisement in the community bulletin section or similar local section of a newspaper of general circulation in the vicinity of the brownfield site which is the subject of the notice. Such notice shall be in English and in any other language spoken by significant numbers of people within the community. 23. "Non-Aqueous Phase Liquid" shall mean a liquid that does not dissolve or mix easily in water. 24. "Off-Site Contamination" shall mean any contamination which has emanated from a brownfield site beyond the real property boundaries of such site, via movement through air, indoor air, soil, surface water or groundwater. 25. "On-Site Contamination" shall mean any contamination located within the real property boundaries of a brownfield site. 26. "Permanent Cleanup" or "Permanent Remedy" shall mean a cleanup or remedy that would allow a site to be used for any purpose without restriction and without reliance on the long-term employment of institutional or engineering control. 27. "Petroleum" shall have the meaning set forth in section one hundred seventy-two of the navigation law. 28. "Residual Contamination" shall mean contamination remaining as a solid, semi-solid or immiscible liquid in surface or subsurface soil, geologic matrix pore spaces or fractures and held in place by capillary forces or other physical or chemical forces that will not drain from the formation. S 27-1407. Request For Participation. 1. A person who seeks to participate in this program shall submit a request to the department on a form provided by the department. Such form shall include information to be determined by the department sufficient to allow the department to determine eligibility and the current, intended and reasonably anticipated future land use of the site pursuant to section 27-1415 of this title. 2. If the person chooses, such person may also submit a work plan for a site investigation or final report describing the results of an investigation that meets the requirements of this article. 3. The department shall notify the person requesting participation in this program within ten days after receiving such request that such request is either complete or incomplete. In the event the application is determined to be incomplete the department shall specify in writing the missing necessary information required pursuant to this article to complete the application and shall have ten days after receipt of the missing information to issue a written determination if the application is complete. 4. Upon the receipt of an application, the department shall notify the administrator of the New York environmental protection and spill compensation fund to determine whether such person has been identified as responsible for cleanup and removal costs for the discharge of petroleum at or emanating from the brownfield site for which the person is seeking participation and whether there is an outstanding claim against such person pursuant to article twelve of the navigation law. The administrator shall notify the department and the person within thirty days of such notice of any outstanding claim by the fund against such person at the brownfield site for which the person is seeking participation. 5. Upon the determination that the application is
complete, the department shall commence a thirty day comment period and place
a notification of receipt of request to participate in this program in the
environmental notice bulletin and provide newspaper notice. The department
shall also provide notice thereof in writing to the chief executive officer
and zoning board of each county, city, town and village in which such
brownfield site is located, residents on and/or adjacent to the site, the
public water supplier which services the area in which such brownfield site
is located, any person who has requested to be placed on the brownfield site
contact list and the administrator of any school or day care facility located
on and/or adjacent to the site for the purposes of posting and/or
dissemination at the facility. For purposes of this section “Water Supplier”
means any public water system as such term is defined for the purposes of the
sanitary code of the state of 6. The department shall use all best efforts to expeditiously notify the applicant within forty-five days after receiving their request for participation that such request is either accepted or rejected. 7. In the event a final investigation report describing the results of an investigation that meets the requirements of this article was submitted with the application, the person shall establish a document repository, notify individuals on the brownfield site contact list, and provide for a thirty day comment period. Within sixty days after receiving a person’s application the commissioner shall inform the person in writing that the investigation is complete or that the investigation is incomplete and specify the missing necessary information required pursuant to this article to complete the investigation and/or the final investigation report. 8. The department shall reject such request if: (a) the department determines that the request is for real property which does not meet the requirements of a brownfield site as defined in this article; or (b) there is an action or proceeding relating to the brownfield site against the person who is requesting participation that is pending in any civil or criminal court in any jurisdiction, or before any state or federal administrative agency or body, wherein the state or federal government seeks the investigation, removal, or remediation of contamination or penalties; (c) there is an order providing for the investigation, removal, or remediation of contamination relating to the brownfield site against the person who is requesting participation; or (d) the person requesting participation is subject to an outstanding claim as provided in subdivision four of this section. 9. The department may reject such request for participation if the department determines that the public interest would not be served by granting such request. The department shall consider factors, including but not limited to, the following: (a) The person has been determined in an administrative, civil or criminal proceeding to have violated any provision of this article, any related order or determination of the commissioner, any regulation promulgated pursuant to this article, or any similar statute, regulation, order of the federal or other state government. (b) The person has been denied entry into this program based upon one or more of the provisions of this subdivision, or a similar provision of federal or other state law. (c) The person has been found in a civil proceeding to have committed a negligent or intentionally tortious act, or has been convicted in a criminal proceeding of a criminal act involving the handling, storing, treating, disposing or transporting of contaminants. (d) The person has been
convicted of a criminal offense under the laws of any state or of the (e) The person has in any matter within the jurisdiction of the department knowingly falsified or concealed a material fact or knowingly submitted a false statement or made use of or made a false statement on or in connection with any document or application submitted to the department. (f) The person is either: (1) an individual who had a substantial interest in or acted as a high managerial agent or director for any corporation, partnership, association or organization which committed an act or failed to act, and such act or failure to act could be the basis for the denial of a request for participation pursuant to this section or regulations promulgated thereunder if such corporation, partnership, association or organization submitted a request under this title; (2) a corporation, partnership, association, organization, or any principal thereof, or any person holding a substantial interest therein, which committed an act or failed to act, and such act or failure to act could be the basis for the denial of a request for participation pursuant to this section or regulations promulgated thereunder if such corporation, partnership, association or organization submitted a request under this title; or (3) a corporation, partnership, association or organization or any high managerial agent or director thereof, or any person holding a substantial interest therein, acting as high managerial agent or director for or holding a substantial interest in another corporation, partnership, association or organization which committed an act or failed to act, and such act or failure to act could be the basis for the denial of a request for participation pursuant to this section or regulations promulgated thereunder had such other corporation, partnership, association or organization submitted a request under this title. For the purposes of this subdivision, “High Managerial Agent” has the same meaning as is given that term in section 20.20 of the penal law, and “Substantial Interest” shall be defined in regulations promulgated by the commissioner. S 27-1409. Brownfield Site Cleanup Agreement. The agreement shall include, but not be limited to, the following provisions: 1. One describing the boundaries of the real property that is subject to the brownfield site cleanup agreement; 2. One requiring the applicant to pay for state costs; provided, however, that with respect to a brownfield site after which the department has determined constitutes a significant threat to the public health or environment the department may include a provision requiring the applicant to provide a technical assistance grant, as described in subdivision four of section 27-1417 of this title and under the conditions described therein, to an eligible party in accordance with procedures established under such program, with the cost of such a grant incurred by a volunteer serving as an offset against such state costs. Where the applicant is a participant, the department shall include provisions relating to recovery of state costs incurred before the effective date of such agreement; 3. One setting forth a process for resolving disputes arising from the evaluation, analysis, and oversight of the implementation of the work plan as described; 4. One requiring an indemnification provision which holds the state harmless from any claim, suit, action, and cost of every name and description arising out of or resulting from the fulfillment or attempted fulfillment of the agreement, except for those claims, suits, actions, and costs arising from the state’s gross negligence or wilful or intentional misconduct; 5. One authorizing the department to terminate a brownfield site cleanup agreement at any time during the implementation of such agreement if the applicant implementing such agreement fails to substantially comply with such agreement’s terms and conditions; 6. One stating that the department may exempt the applicant from the requirement to obtain any state or local permit or other authorization contamination from such brownfield site, (b) the activity satisfies all substantive technical requirements applicable to like activity conducted pursuant to a permit as determined by the department, and (c) the activity is conducted under such brownfield site cleanup agreement pursuant to section 27-1429 of this title; 7. One stating that the department shall not consider the applicant an operator of such brownfield site based solely upon execution or implementation of such brownfield site cleanup agreement for purposes of remediation liability; 8. One requiring that the applicant conduct investigation and/or remediation activities pursuant to one or more work plans which are approved by the department; 9. One requiring the preparation and implementation of a citizen participation plan consistent with the requirements of this title as soon as possible following execution of the agreement but no later than prior to the preparation of a draft remedial investigation plan by the applicant which shall include a description of citizen participation activities already performed by the applicant and/or the department; 10. One requiring a waiver by the applicant, effective upon the execution of the brownfield site cleanup agreement, any right such applicant has or may have to make a claim against the state of New York pursuant to article twelve of the navigation law with respect to the brownfield site, and a release of the New York environmental protection and spill compensation fund from any and all legal or equitable claims or causes of action that such applicant may have as a result of entering into a brownfield site cleanup agreement or fulfilling a brownfield site remedial program at such site; 11. The inclusion of other conditions considered necessary by the department concerning the effective and efficient implementation of this title; and 12. Nothing in this section shall prohibit or limit the department from terminating a brownfield site cleanup agreement at any time during its implementation if the applicant fails to comply substantially with such agreement’s terms and conditions. S 27-1411. Work Plan Requirements. 1. A remedial investigation work plan shall provide for the investigation and characterization of the nature and extent of the contamination within the boundaries of the brownfield site, provided, however, a participant shall also be required to fully investigate and characterize the nature and extent of contamination emanating from such site; and a volunteer must perform a qualitative exposure assessment pursuant to subdivision two of section 27-1415 of this title regarding contamination emanating from such site. Such work plan shall require that the applicant cause a final report to be prepared and submitted to the department that identifies the investigation activities completed pursuant to such work plan. Such final report, at a minimum, shall: (a) fully characterize the nature and extent of contamination at the brownfield site; a participant shall also fully characterize the nature and extent of contamination that has emanated from the brownfield site; and a volunteer shall describe the findings of the off-site exposure assessments; (b) state whether the completed investigation has demonstrated that conditions at the brownfield site (1) require remediation in order to meet the remedial requirements of this title; or (2) meet the requirements of this title without necessity for remediation; (c) within twenty days of the completion of the final report the department shall make a final determination regarding whether the site poses a significant threat based on criteria promulgated pursuant to title thirteen of this article; and (d) for it to be determined that the requirements of this title have been met without the necessity for remediation, an alternatives analysis pursuant to section 27-1413 of this title must support such determination for all sites which do not meet the requirements in Track 1 for unrestricted use and the department must have made a final determination that the site does not pose a significant threat. 2. A remedial work plan shall provide for the development and implementation of a remedial program for such contamination within the boundaries of such brownfield site; provided, however, that a participant shall also be required to provide in such work plan for the development and implementation of a remedial program for contamination that has emanated from such site. 3. Interim remedial measures. (a) Interim remedial measure work plan. For interim remedial measures that are not emergency response actions an interim remedial measure work plan shall be prepared by the applicant containing such provisions as the department deems appropriate. (b) Interim remedial measure report. For interim remedial measures that are not emergency response actions, an interim remedial measure report must be prepared and submitted to the department which shall include a description of all interim remedial measures completed pursuant to the interim remedial measure work plan. 4. The commissioner shall use all best efforts to expeditiously approve, modify, or reject a proposed work plan within forty-five days from its receipt or within fifteen days of the close of the comment period, whichever is later. (a) If the commissioner rejects a proposed work plan, the commissioner shall notify the applicant and specify the reasons for rejecting same. (b) If the commissioner approves or modifies such proposed work plan, the commissioner shall notify the applicant, in writing, that the proposed work plan has been approved or modified. If the commissioner requires a modification, the applicant may agree to modify such proposed work plan or withdraw it from consideration. 5. Within six months of the determination that a site poses a significant threat, in the event that the applicant is a volunteer, the department shall bring an enforcement action against any parties known or suspected to be responsible for contamination (other than such volunteer) at or emanating from the site according to applicable principles of statutory or common law liability. If such action cannot be brought, or does not result in the initiation of a remedial program by such party or parties at such site, the department shall use best efforts to begin a remedial program to perform the remediation of off-site contamination at such site within one year of the completion of such enforcement action or the completion of the volunteer’s on-site remedial program, whichever is later. The state shall use moneys from the hazardous waste remedial fund established pursuant to section ninety-seven-b of the state finance law, and/or from the New York environmental protection and spill compensation fund established pursuant to section one hundred seventy-nine of the navigation law, as appropriate, to undertake the investigation and/or remediation of such contamination. The state’s costs incurred relative to such off-site contamination shall be recoverable by the state from the person or persons responsible. S 27-1413. Alternatives Analysis. 1. For sites proposed to be remediated under Track 1 pursuant to section 27-1415 of this title, the applicant shall develop and evaluate at least one remedial alternative. 2. For all other sites, the applicant shall develop and evaluate at least two remedial alternatives, one of which would achieve a Track 1 cleanup. The department shall have the discretion to require the evaluation of additional alternatives at a site that has been determined to pose a significant threat. The applicant shall submit the alternatives analysis as a part of the remedial work plan to the department for review, approval, modification or rejection. 3. Unless the applicant has elected to remediate the site to Track 1, the department may require the applicant, as a condition of continuing under this program, to develop and evaluate a Track 2 cleanup pursuant to section 27-1415 of this title for such non-significant threat site upon due consideration of the following factors: (a) the degree to which the remedy selection criteria would be better satisfied by a Track 2 cleanup; (b) the degree of impact a Track 2 cleanup would have on the applicant’s ability to successfully cleanup and/or redevelop the property; (c) the benefit to the environment to be realized by the expeditious remediation of the property; and (d) the economic benefit to the state to be realized by the expeditious remediation of the property. 4. For sites that the department has determined constitute a significant threat, the department shall select the remedy from a department-approved alternatives analysis prepared by the applicant. 5. For sites that the department has determined do not constitute a significant threat, the applicant may select the remedy from a department-approved alternatives analysis, which analysis shall contain at least two remedial alternatives as set forth in subdivision two of this section. Provided, however, that where the department has required the applicant to develop and evaluate a Track 2 cleanup, the department shall have the discretion to, as a condition of continuing under this program, require the applicant to implement such remedy. S 27-1415. Remedial Program Requirements. 1. Remedial programs. All remedial programs shall be protective of public health and the environment including but not limited to groundwater according to its classification pursuant to section 17-0301 of this chapter; drinking water, surface water and air (including indoor air); sensitive populations, including children; and ecological resources, including fish and wildlife. In all cases, the target risk of residual contamination at a site shall not exceed an excess cancer risk of one in one million for carcinogenic end points and a hazard index of one for non-cancer end points. 2. Investigation. (a) Remedial investigation. A remedial investigation shall fully characterize the nature and extent of contamination at and/or emanating from a brownfield site. Such investigation shall emphasize data collection and sampling and monitoring, as necessary, and includes but is not limited to: characterization of site geologic and hydrogeologic conditions, including groundwater flow, contaminant movement, and the response of the groundwater system to extraction; and 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. (b) Qualitative exposure assessment. A qualitative exposure assessment shall qualitatively determine the route, intensity, frequency, and duration of actual or potential exposures of humans, fish and wildlife to contaminants. Such assessment must analyze the nature and size of the population currently exposed or which may reasonably be expected to be exposed to the contaminants that are present at or emanating from a site, and shall include a determination of the reasonably anticipated future land use of the site and affected off-site areas and the reasonably anticipated future groundwater use. A qualitative exposure assessment consists of characterizing the exposure setting, identifying current and reasonably foreseeable exposure pathways, and evaluating contaminant fate and transport. Some off-site field investigation to identify and sample any potential areas of contamination may be required to support the exposure assessment. 3. Selection. The remedial program for a site shall be selected upon due consideration of the following factors: (a) Conformance 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, and with consideration being given to guidance determined, after the exercise of engineering judgment, to be applicable. Such good cause exists if any of the following is present: (i) the proposed action is only part of a complete program that will conform to such standard or criterion upon completion; or (ii) conformity to such standard or criterion will result in greater risk to the public health or to the environment than alternatives; or (iii) conformity to such standard or criterion is technically impracticable from an engineering perspective; or (iv) the program 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. (b) Overall protectiveness of the public health and the environment. (c) Short-term effectiveness. (d) Long-term effectiveness and performance. A remedial program that achieves a complete and permanent cleanup of the site is to be preferred over a remedial program that does not do so. (e) Reduction in toxicity, mobility and/or volume of contamination with treatment. A remedial program that permanently and significantly reduces the toxicity, mobility and/or volume of contamination is to be preferred over a remedial program that does not do so. The following is the hierarchy of the remedial technologies ranked from the most preferable to the least preferable: destruction, on-site or off-site; separation/treatment, on-site or off-site; solidification/chemical fixation, on-site or off-site; control and isolation, on-site or off-site. (f) Implementability. (g) Cost effectiveness. (h) Community acceptance. (i) Land use. The current, intended, and reasonably anticipated future land uses of the site and its surroundings shall be considered in the selection of the remedy for soil remediation, provided the department determines that there is reasonable certainty associated with such use. If the use proposed for the site does not conform with applicable zoning laws or maps or the reasonably anticipated future use of the site determined by the department pursuant to this section, the department shall disapprove such use. The reasonably anticipated future use of the site and its surroundings shall be documented by the applicant and determined by the department, taking into consideration factors including, but not limited to, those listed below: (i) Current use and historical and/or recent development patterns. (ii) Applicable zoning laws and maps. (iii) Brownfield opportunity areas as designated pursuant to section nine hundred seventy-r of the general municipal law. (iv) Applicable comprehensive community master plans, local waterfront revitalization plans as provided for in article forty-two of the executive law, or any other applicable land use plan formally adopted by a municipality. (v) Proximity to real property currently used for residential use, and to urban, commercial, industrial, agricultural, and recreational areas. (vi) Any written and oral comments submitted by members of the public on the applicant’s proposed use as part of citizen participation activities performed by the applicant pursuant to this title. (vii) Environmental justice concerns, which for purposes of this title, 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. (viii) Federal or state land use designations. (ix) Population growth patterns and projections. (x) Accessibility to existing infrastructure. (xi) Proximity of the site to important cultural resources, including federal or state historic or heritage sites or Native American religious sites. (xii) 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. (xiii) 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 pursuant to title thirty-one of article fifteen of this chapter. (xiv) Proximity to floodplains. (xv) Geography and geology. (xvi) Current institutional controls applicable to the site. 4. Tracks. The commissioner, in consultation with the commissioner of health, shall propose within twelve months and thereafter timely promulgate regulations which create a multi-track approach for the remediation of contamination, and, commencing on the effective date of such regulations, utilize such multi-track approach. Such regulations shall provide that groundwater use in Tracks 2, 3 or 4 can be either restricted or unrestricted. The tracks shall be as follows: Track 1: The remedial program shall achieve a cleanup level that will allow the site to be used for any purpose without restriction and without reliance on the long-term employment of institutional or engineering controls, and shall achieve contaminant-specific remedial action objectives for soil which conform with those contained in the generic table of contaminant-specific remedial action objectives for unrestricted use developed pursuant to subdivision six of this section. Provided, however, that volunteers whose proposed remedial program for the remediation of groundwater may require the long-term employment of institutional or engineering controls after the bulk reduction of groundwater contamination to asymptotic levels has been achieved but whose program would otherwise conform with the requirements necessary to qualify for Track 1, shall qualify for Track 1. Track 2: The remedial program may include restrictions on the use of the site or reliance on the long-term employment of engineering and/or institutional controls, but shall achieve contaminant-specific remedial action objectives for soil which conform with those contained in one of the generic tables developed pursuant to subdivision six of this section without the use of institutional or engineering controls to reach such objectives. Track 3: The remedial program shall achieve contaminant-specific remedial action objectives for soil which conform with the criteria used to develop the generic tables for such objectives developed pursuant to subdivision six of this section but may use site specific data to determine such objectives. Track 4: The remedial program shall achieve a cleanup level that will be protective for the site’s current, intended or reasonably anticipated residential, commercial, or industrial use with restrictions and with reliance on the long-term employment of institutional or engineering controls to achieve such level. The regulations shall include a provision requiring that a cleanup level which poses a risk in exceedance of an excess cancer risk of one in one million for carcinogenic end points and a hazard index of one for non-cancer end points for a specific contaminant at a specific site may be approved by the department without requiring the use of institutional or engineering controls to eliminate exposure only upon a site specific finding by the commissioner, in consultation with the commissioner of health, that such level shall be protective of public health and environment. Such finding shall be included in the draft remedial work plan for the site and fully described in the notice and fact sheet provided for such work plan. 5. Source removal and control measures. The following is the hierarchy of source removal and control measures ranked from most preferable to least preferable. For all applicants, the remedial program selected pursuant to this title shall address sources in the following manner: (a) Removal and/or treatment. All free product, concentrated solid or semi-solid contaminants, dense non-aqueous phase liquid, light non-aqueous phase liquid and/or grossly contaminated soil 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. (b) Containment. Any source remaining following removal and/or treatment pursuant to this subdivision shall be contained; provided however if full containment is not feasible, such source shall be contained to the greatest extent feasible. (c) Elimination of exposure. Exposure to any source remaining following removal, treatment and/or containment pursuant to 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. (d) Treatment of source at the point of exposure. Treatment of source at the point of exposure, including but not limited to, as applicable, wellhead treatment or the management of volatile contamination within buildings, shall be considered as a measure of last resort. (5-a) Plume stabilization shall be evaluated for all remedies and the further migration of contamination from the site shall be prevented to the extent feasible, including any actions that would be necessary to maintain and monitor such stabilization. In addition, a participant shall prevent the further migration of plumes to the extent feasible. 6. Soil cleanup objectives. (a) The regulations shall include three generic tables of contaminant-specific remedial action objectives for soil based on current, intended or reasonably anticipated future use, including: (i) unrestricted, (ii) commercial and (iii) industrial. (b) Such objectives shall be protective of public health and the environment pursuant to subdivision one of this section, and the level of risk associated with remedial action objectives for individual contaminants listed in the table or developed by the applicant pursuant to Track 3 shall not exceed an excess cancer risk of one in one million for carcinogenic end points and a hazard index of one for non-cancer end points; provided, however, that if the background soil concentration for a contaminant in rural soils in New York State exceeds such risk level, the contaminant-specific action objective for such contaminant may be established equal to such background concentration. In developing such tables, the department shall consider: (i) Standards, criteria and guidance which are found by the department to be applicable or relevant and appropriate pursuant to paragraph (a) of subdivision three of this section; (ii) the behaviors of children; (iii) the protection of adjacent residential uses; (iv) contaminants which act through similar toxicological mechanisms or have the potential for additive and/or synergistic effects, and exposure to the same contaminant or group of contaminants from other sources and routes; and (v) the feasibility of achieving more stringent remedial action objectives, based on experience under the existing state remedial programs, particularly where toxicological, exposure, or other pertinent data are inadequate or nonexistent for a specific contaminant. (c) The department shall update such tables of contaminant-specific remedial action objectives every five years. The initial tables shall be published in draft form for public comment with a public comment period of one hundred twenty days, and be the subject of at least three public hearings throughout the state. Subsequent tables shall be the subject of at least one public hearing and a public comment period of at least ninety days. (d) For Track 4, exposed surface soils shall not exceed the generic contaminant-specific remedial action objectives for soil developed for unrestricted, commercial, or industrial use pursuant to this subdivision which conforms with the site’s current intended, or reasonably anticipated future use. For purposes of this section “Exposed Surface Soils” shall mean two feet for sites used for residential use and one foot for sites used for commercial or industrial use. 7. Institutional and engineering controls. (a) The department may approve a proposed remedial work plan that includes institutional controls and/or engineering controls as components of a proposed remedial program provided the remedial work plan includes: (i) A complete description of any proposed use restrictions and/or institutional controls and the mechanisms that will be used to implement, maintain, monitor, and enforce such restrictions and controls, both by the applicant and by state and local government; (ii) a complete description of any proposed engineering controls and any operation, maintenance, and monitoring requirements, including the mechanisms that will be used to continually implement, maintain, monitor, and enforce such controls and requirements, both by the applicant and by state and local government; (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 an analysis of the long-term costs of implementing, maintaining, monitoring and enforcing such controls, including costs that may be borne by state or local governments; (iv) sufficient analysis 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 to ensure the long-term implementation, maintenance, monitoring, and enforcement of any such controls; and (vi) a requirement that any engineering control must be used in conjunction with institutional controls to ensure the continued integrity of such engineering control. (b) The owner of a brownfield site at which institutional or engineering controls are employed pursuant to this title shall, unless otherwise provided in writing by the department, annually submit to the department a written statement by an individual licensed or otherwise authorized in accordance with article one hundred forty-five of the education law to practice the profession of engineering, or by such other expert as the department may find acceptable certifying under penalty of perjury that the institutional controls and/or engineering controls employed at such site are unchanged from the previous certification and that nothing has occurred that would impair the ability of such control to protect the public health and environment, or constitute a violation or failure to comply with any operation and maintenance plan for such controls and giving access to the department to such real property to evaluate continued maintenance of such controls. (c) At non-significant threat sites where contaminants in groundwater at the site boundary contravene drinking water standards, such certification shall also certify that no new information has come to the owner’s attention, including groundwater monitoring data from wells located at the site boundary, if any, to indicate that the assumptions made in the qualitative exposure assessment of off-site contamination are no longer valid. Every five years the owner at such sites shall certify that the assumptions made in the qualitative exposure assessment remain valid. The requirement to provide such certifications may be terminated by a written determination by the commissioner in consultation with the commissioner of health, after notice to the parties on the brownfield site contact list and a public comment period of thirty days. (d) The commissioner shall create, update, and maintain a database system for public information purposes and to monitor and track all brownfield sites subject to this title. Data incorporated into such system for each site for which information has been collected pursuant to this title shall include, but shall not be limited to, a site summary, name of site owner, location, status of site remedial activity, and, if one has been created pursuant to title thirty-six of article seventy-one of this chapter, a copy of the environmental easement, and a contact number to obtain additional information. Sites shall be added to such system upon the execution of a brownfield site cleanup agreement pursuant to section 27-1409 of this title. If and when an environmental easement is modified or extinguished, the copy of the environmental easement contained in the database shall be updated accordingly. Such database shall be in such a format that it can be readily searched by affected local governments and the public for purposes including but not limited to determining whether an environmental easement has been recorded for a site pursuant to title thirty-six of article seventy-one of this chapter. The database shall be available electronically. Information from this database shall be incorporated into the geographic information system created and maintained by the department pursuant to section 3-0315 of this chapter. 8. Presumptive remedial strategies. Nothing herein contained shall be deemed to require site-specific remedy selection, and the commissioner shall have the power to develop a list of presumptive remedial strategies that applicants may use to meet the requirements associated with Tracks 1 through 4 of this section. Such remedies may be developed for specific site types and/or contaminants based upon historical patterns of remedy selection and the department’s scientific and engineering evaluation of performance data on technology implementation. 9. Use of innovative technologies. The commissioner, in consultation with the commissioner of health, shall consider and encourage the use of innovative technologies which will meet the remedial objectives of this title. Consistent with the provisions of section twelve hundred eighty-five-f of the public authorities law, the commissioner, in consultation with the president of the environmental facilities corporation, shall encourage the development of such technologies. S 27-1417. Citizen Participation. 1. Citizen participation handbook. The commissioner shall prepare a citizen participation handbook for the purpose of providing guidance to applicants in the design and implementation of meaningful citizen participation plans consistent with the requirements of this section for the remediation of brownfield sites as provided in this title. Such handbook shall encourage citizen involvement by outlining opportunities and recommended methods for effective citizen participation. The commissioner shall make such handbook available to all applicants and other interested members of the public upon request and shall make it available on the department’s sebsite. 2. Citizen participation plans. (a) 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 applicant. (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 two-way dialogue. (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 the analysis are based. (b) All citizen participation plans shall include the following minimum elements: (1) identification of the interested public and preparation of a brownfield site contact list; (2) identification of major issues of public concern related to the brownfield site; (3) a description and schedule of public participation activities required pursuant to this section; and (4) a description and schedule of any additional public participation activities needed to address public concerns. 3. Citizen participation requirements. (a) In addition to the formal milestones listed below, the public may provide comments at any time during the remedial program. (b) The person submitting a request for participation, in cooperation with the department, shall provide a newspaper notice of the person’s request to participate in the program the person, in cooperation with the department, shall also provide notice thereof to the brownfield site contact list. Such notice shall provide for a thirty day public comment period following publication. (c) Before the department finalizes the remedial investigation work plan, the applicant, in cooperation with the department, must notify individuals on the brownfield site contact list. Such notice shall include a fact sheet describing such plan and provide for a thirty day public comment period. (d) Before the department approves a proposed remedial investigation report, the department, in consultation with the applicant, shall notify individuals on the brownfield site contact list. Such notice shall include a fact sheet describing such report. (e) Upon the department’s determination of significant threat pursuant to section 27-1411 of this title, the department must provide notice to individuals on the brownfield site contact list. Such notice shall include a fact sheet describing the basis of the department’s determination. (f) Before the department finalizes a proposed remedial work plan or makes a determination that site conditions meet the requirements of this title without the necessity for remediation pursuant to section 1411 of this title, the department in consultation with the applicant, must notify individuals on the brownfield site contact list. Such notice shall include a fact sheet describing such plan and provide for a forty-five day public comment period. The commissioner shall hold a public meeting if requested by the affected community and the commissioner has found that the site constitutes a significant threat to the public health or the environment. Further, the affected community may request a public meeting at sites that do not constitute a significant threat. (1) To the extent that the department has determined that site conditions do not pose a significant threat and the site is being addressed by a volunteer, the notice shall state that the department has determined that no remediation is required for the off-site areas and that the department’s determination of a significant threat is subject to this forty-five day comment period. (2) If the remedial work plan includes a Track 2, Track 3 or Track 4 remedy at a non-significant threat site, such comment period shall apply both to the approval of the alternatives analysis by the department and the proposed remedy selected by the applicant. (g) Before the applicant commences construction at the brownfield site, the applicant, in cooperation with the department, shall provide notice to the individuals on the brownfield site contact list. (h) Before the department approves a proposed final engineering report, the department, in consultation with the applicant, must notify individuals on such contact list. Such notice shall include a fact sheet describing the brownfield site report, including any proposed institutional or engineering controls. (i) Within ten days of the issuance of a certificate of completion at a site which will utilize institutional or engineering controls, the applicant, in cooperation with the department, shall provide notice to the brownfield site contact list. Such notice shall include a fact sheet describing such controls. 4. Technical assistance grants. (a) Within the limits of appropriations made available pursuant to paragraph j of subdivision three of section ninety-seven-b of the state finance law, the commissioner is authorized to provide grants to any not-for-profit corporation exempt from taxation under section 501(C)(3) of the internal revenue code at any site determined to pose a significant threat by the department and which may be affected by a brownfield site remedial program. To qualify to receive such assistance, a community group must demonstrate that its membership represents the interests of the community affected by such site. Furthermore, the commissioner is authorized to direct any applicant who is a responsible party, as defined in section 27-1313 of this article, to provide such grants. Such grants shall be known as technical assistance grants and may be used to obtain technical assistance in interpreting information with regard to the nature of the hazard posed by contamination located or emanating from a brownfield site or sites and the development and implementation of a brownfield site remedial program or programs. Such grants may also be used to hire health and safety experts to advise affected residents on any health assessments and for the education of interested affected community members to enable them to more effectively participate in the remedy selection process. Grants awarded under this section may not be used for the purposes of collecting field sampling data, political activity or lobbying legislative bodies. (b) The amount of any grant awarded under this section may not exceed fifty thousand dollars at any one site. (c) No matching contribution from the grant recipient shall be required for a technical assistance grant. Following a grant award, a portion of the grant shall be made available to the grant recipient, in advance of the expenditures to be covered by the grant, in five thousand dollar installments. S 27-1419. Certification of Completion. 1. Upon certification by the applicant that the remediation requirements of this title have been achieved for the brownfield site, such applicant shall submit to the department a final engineering report prepared by an individual licensed or otherwise authorized in accordance with article one hundred forty-five of the education law to practice the profession of engineering. 2. A final engineering report shall include, at a minimum: (a) a description of the remediation activities completed pursuant to the remedial work plan for the brownfield site; (b) a certification that the data submitted to the department demonstrates that the remediation requirements set forth in the remedial work plan and any other relevant provisions of this title have been or will be achieved in accordance with the timeframes, if any, established in such work plan; (c) the boundaries of the real property that is subject to a brownfield site cleanup agreement; (d) a complete description of any institutional and/or engineering controls employed at the site, including the mechanisms that will be used to continually implement, maintain, monitor, and enforce such controls both by the applicant, the applicant’s successors and assigns, and by state or local government; (e) a certification that any use restrictions, institutional controls, engineering controls and/or any operation and maintenance requirements applicable to the site are contained in an environmental easement created and recorded pursuant to title thirty-six of article seventy-one of this chapter and that any affected local governments, as defined in title thirty-six of article seventy-one of this chapter have been notified that such easement has been recorded; (f) a certification that an operation and maintenance plan has been submitted by the applicant for the continual and proper operation, maintenance, and monitoring of any engineering controls employed at the site including the proper maintenance of any remaining monitoring wells, and that such plan has been approved by the department; and (g) a certification that any financial assurance mechanisms required by the department pursuant to this title have been executed. 3. Upon receipt of the final engineering report, the department shall review such report and the data submitted pursuant to the brownfield site cleanup agreement as well as any other relevant information regarding the brownfield site. Upon satisfaction of the commissioner that the remediation requirements set forth in this title have been or will be achieved in accordance with the timeframes, if any, established in the remedial work plan, the commissioner shall issue a written certificate of completion, such certificate shall include such information as determined by the department of taxation and finance, including but not limited to the brownfield site boundaries included in the final engineering report, and the date of the brownfield site agreement pursuant to section 27-1409 of this title. 4. The commissioner shall not issue a certificate of completion to any applicant who has been identified by the administrator of the New York environmental protection and spill compensation fund pursuant to subdivision four of section 27-1407 of this title as a person responsible for the cleanup and removal costs for the discharge of petroleum at or emanating from the brownfield site for which the applicant is seeking a certificate of completion where the applicant has not resolved any outstanding claim at such site pursuant to article twelve of the navigation law. 5. A certificate of completion issued pursuant to this section may be transferred to the applicant’s successors or assigns upon transfer or sale of the brownfield site. Further, a certificate of completion may be modified or revoked by the commissioner upon a finding that: (a) either the applicant, or the applicant’s successors or assigns, has failed to comply with the terms and conditions of the brownfield site cleanup agreement; (b) the applicant made a misrepresentation of a material fact tending to demonstrate that it was qualified as a volunteer; (c) either the applicant, or the applicant’s successors or assigns made a misrepresentation of a material fact tending to demonstrate that the cleanup levels identified in the brownfield site cleanup agreement were reached; or (d) there is good cause for such modification or revocation. 6. Upon the commissioner’s determination pursuant to subdivision three or five of this section, the commissioner shall provide the applicant with notice of such determination and notice of the right to appeal such determination. The commissioner’s determination shall be final unless a hearing is requested by certified mail sent to the commissioner within thirty days after receiving notice of such determination. After such hearing, the commissioner shall give notice of final determination to such applicant. The commissioner may promulgate regulations to effectuate the purposes of this section. 7. Nothing herein shall be construed as abrogating
any powers or duties of the administrator of the 8. A notice of such certification of completion shall be recorded and indexed in the office of the recording officer for the county or counties where such brownfield site is located in the manner prescribed by article nine of the real property law within thirty days of the issuance of the certificate of completion if the applicant is an owner or within thirty days of acquiring title to the brownfield site if the person is a prospective purchaser. S 27-1421. Liability Limitation. 1. Notwithstanding any other provision of law and except as provided in subdivision two of this section, after the department has issued a certificate of completion for a brownfield site, the applicant shall not be liable to the state upon any statutory or common law cause of action, arising out of the presence of any contamination in, on or emanating from the brownfield site that was the subject of such certificate at any time before the effective date of a brownfield site cleanup agreement entered into pursuant to this title, except that a participant shall not receive a release for natural resource damages that may be available under law. 2. (a) The state nonetheless shall reserve all of its rights concerning, and such liability limitation shall not extend to, any further investigation and/or remediation the department deems necessary due to: (i) environmental contamination at, on, under, or emanating from the brownfield site if, in light of such conditions, the site is no longer protective of public health or the environment; or (ii) non-compliance with the terms of the agreement, the remedial work plan and the certificate of completion required by this title; or (iii) fraud committed by the applicant in its application for or participation in this program; or (iv) a written finding by the department that a change in an environmental standard, factor, or criterion upon which the remedial work plan or no further action determination was based, renders the brownfield site remedial program implemented at the site no longer protective of public health or the environment; or (v) a change in the brownfield site’s use subsequent to the department’s issuance of the certificate of completion unless additional remediation is undertaken which shall meet the standard for protection of public health and the environment that applies under this title; or (vi) following the certificate of completion the failure of an applicant to make substantial progress toward completion of its proposed development of the site within five years, or the applicant engages in unreasonable delay and fails to complete its proposed development of the site within a reasonable time, considering the size, scope and nature of the development. Provided however, that this subparagraph shall not apply in the case where a Track 1-unrestricted use as provided in section 27-1415 of this title is achieved. (b) In the case of a volunteer, subparagraph (v) of paragraph (a) of this subdivision shall not apply if Track 1-unrestricted use as provided in section 27-1415 of this title is achieved. 3. The liability limitation provided pursuant to this section shall run with the land, extending to the applicant’s successors or assigns through acquisition of title to the brownfield site and to a person who develops or otherwise occupies the brownfield site; provided that such persons act with due care and in good faith to adhere to the requirements of the brownfield site cleanup agreement and certificate of completion. However, such liability limitation does not extend, and cannot be transferred, to a person who is responsible for the disposal or the discharge of contaminants on such site according to applicable principles of statutory or common law liability as of the effective date of the certification of completion issued pursuant to this title, unless that person was party to the brownfield site cleanup agreement for the brownfield site pursuant to this article. 4. The provisions of this title shall not affect an action or a claim, including a statutory or common law claim for contribution or indemnification, that an applicant has or may have against a third party. 5. Nothing in this section shall be construed to affect either the liability of any person with respect to any costs, damages, or investigative or remedial activities that are not included in the brownfield site cleanup agreement or remedial investigation work plan and/or remedial work plan for the brownfield site or the state’s authority to maintain an action or proceeding against any person who is not subject to the brownfield site cleanup agreement. 6. A person who has received a liability limitation under this subdivision shall not be liable for claims for contribution regarding matters addressed in the brownfield site cleanup agreement except nothing in this section shall effect the liability of the person responsible for such person’s own acts or omissions causing wrongful death or personal injury. Such liability limitation does not discharge any of the persons responsible under law to investigate and remediate the contamination, but it reduces the potential liability of the others by the amount of the value associated with the remediation activities described in the final engineering report. 7. Nothing in this section shall be construed to affect the authority of the department to reach settlement with other persons consistent with its authority under applicable law. 8. Nothing in this section shall affect the liability of any person with respect to any civil action brought by a party other than the state. 9. In addition to any other powers the department may have, the department shall have the authority to periodically inspect each brownfield site to ensure that the use of the property complies with the terms and conditions of the brownfield site cleanup agreement. S 27-1423. Payment of State Costs. 1. Pursuant to timetables contained in the brownfield site cleanup agreement, the volunteer shall pay all state costs incurred in negotiating and overseeing implementation of such agreement, provided, however, as set forth in a brownfield site cleanup agreement pursuant to this title, that such costs may be based upon a reasonable flat-fee for oversight, which shall reflect the projected future state costs to be incurred in negotiating and overseeing implementation of such agreement. In addition, a participant shall pay all costs incurred by the state up to the effective date of such agreement. 2. Payment of such state costs identified in subdivision one of this section shall be made to the hazardous waste remedial fund established pursuant to section ninety-seven-b of the state finance law. S 27-1425. Change of Use. 1. At least sixty days before the start of physical alteration or construction constituting a change of use at a brownfield site or at least sixty days before a change of use at such site not involving any physical alteration or construction, as the case may be, the person or entity proposing to make a change of use shall provide written notification to the department. 2. No person shall engage in any activity at a brownfield site that is not consistent with restrictions placed upon the use of the property, or that will, or that reasonably is anticipated to: prevent or interfere significantly with a proposed, ongoing, or completed remedial program; or expose the public health or the environment to a significantly increased threat of harm or damage from such site. If the commissioner determines that a proposed change of use is prohibited pursuant to this section, he or she shall, within forty-five days after receipt of the complete notice required by this section, provide the person giving such notice with a written determination that such change of use will not be authorized, together with the reasons for such determination. 3. For the purposes of this section: (a) "Change of Use" means the transfer of title to all or part of such brownfield site, the erection of any structure on such site, the creation of a park or other public or private recreational facility on such site, or any activity that is likely to disrupt or expose contamination or to increase direct human exposure; or any other conduct that will or may tend to significantly interfere with an ongoing or completed remedial program at such site and the continued ability to implement the engineering and institutional controls associated with such site. (b) "Complete Notice" means a notice that adequately apprises the department of the contemplated change of use of such site and how such change of use may affect the site’s proposed, ongoing, or completed remedial program. S 27-1429. Permit Waivers. The department, by and through the commissioner, shall be authorized to exempt a person from the requirement to obtain any state or local permit or other authorization for any activity needed to implement a program for the investigation and/or remediation of contamination; provided that the activity is conducted in a manner which satisfies all substantive technical requirements applicable to like activity conducted pursuant to a permit. S 27-1431. Access to Sites. The department, by and through the commissioner, shall be authorized to: 1. Require that any person permit a duly designated officer or employee of the department or of a municipal corporation, or any agent, consultant, or contractor of the department or of a municipal corporation, or any other person, including an employee, agent, consultant, or contractor of an applicant acting at the direction of the department, so authorized in writing by the commissioner, to enter upon any property which has or may have been the site of the disposal or discharge of contaminants, and/or areas near such site, for the following purposes: a. to inspect and take samples of such contaminants and/or environmental media, utilizing such sampling methods as may be necessary or appropriate, including without limitation soil borings and monitoring wells; provided, that no sampling methods involving the substantial disturbance of the ground surface of such property may be utilized until after a minimum of ten days’ written notice thereof shall have been provided to the owner and operator and occupant of such property, if identifiable by reasonable efforts, unless the commissioner makes a written determination that such notice will not allow the protection of the public health or the environment, in which case two days’ written notice shall be sufficient; b. to implement the investigation and/or remediation of contamination and/or environmental media; provided that no such work may be undertaken until after a minimum of ten days’ written notice thereof shall have been provided to the owner and operator and occupant of such property, if identifiable by reasonable efforts, unless the commissioner makes a written determination that such notice will not allow the protection of the public health or the environment, in which case two days’ written notice shall be sufficient. (i) If any designated officer or employee of the department or of a municipal corporation, or any agent, consultant, or contractor of the department or of a municipal corporation, or any other person, including any employee, agent, consultant or contractor of a responsible person acting at the direction of the department obtains any samples prior to leaving the premises they shall give to the owner a receipt describing the sample obtained and, if requested, a portion of such sample equal in volume or weight to the portion retained. If any analysis is made of such samples, a copy of the results of such analysis shall be furnished promptly to the owner. Upon the completion of all sampling or subsequent remediation activities, the department shall remove, or cause to be removed, all equipment and well machinery and return the ground surface of the property to its condition prior to such sampling unless the department and the owner of the property shall agree otherwise. (ii) The expense of any such sampling and analysis shall be paid by the department, but may be recovered from any responsible person in any action or proceeding brought pursuant to this title or common law. 2. a. Require that any person furnish to the department, in a form and manner as prescribed by the department, information relating to the current and past contaminant generation, treatment, storage, disposal, and/or transportation activities of such person or any other person now or formerly under the control of such person; in the event such person cannot comply therewith, in whole or in part, such person shall furnish to the department information describing all efforts made by such person to comply therewith; any information so furnished to the department shall be considered a “Written Instrument” as defined in subdivision three of section 175.00 of the penal law; b. require that any person permit a duly designated officer or employee of the department at all reasonable times to have access to and to copy all books, papers, documents, and records relating to the current and past contaminant generation, treatment, storage, disposal, and/or transportation activities of such person or any person now or formerly under the control of such person; c. require, by subpoena issued in the name of the department, the production of books, papers, documents, and other records, and the rendition of testimony by deposition under oath of any person relating to the current and past contaminant generation, treatment, storage, disposal, and/or transportation activities of such person or any person now or formerly under the control of such person; such subpoenas and depositions shall be regulated by the civil practice law and rules; the commissioner may invoke the powers of the supreme court of the state of New York or any other court of competent jurisdiction to compel compliance therewith. S 2. Article 71 of the environmental conservation law is amended by adding a new title 36 to read as follows: TITLE 36 ENVIRONMENTAL EASEMENTS SECTION 71-3601. Declaration Of Policy And Statement Of Purpose. 71-3603. Definitions. 71-3605. Environmental Easements; Certain Common Law Rules Not Applicable. 71-3607. Coordination With Local Governments. 71-3609. Scope Of This Title. 71-3611. Severability. S 71-3601. Declaration of Policy and Statement of Purpose. The legislature hereby finds and declares that
contaminated site remedial programs are an important and necessary component
of the state’s policy of restoring and revitalizing real property located
throughout S 71-3603. Definitions. When used in this title: 1. “Affected Local Government” shall mean every municipality in which land subject to an environmental easement is located. 2. “Environmental Easement” shall mean an interest in real property, created under and subject to the provisions of this title 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. S 71-3605. Environmental Easements; Certain Common Law Rules Not Applicable. 1. An environmental easement shall be granted by the title owners of the relevant real estate only by an instrument, that complies with the requirements of section 5-703 of the general obligations law. 2. The title owners shall furnish to the department abstracts of title and other documents sufficient to enable the department to determine that the easements shall be enforceable. An environmental easement shall be in a form prescribed by the department. An environmental easement shall describe the property encumbered by the easement by adequate legal description or by reference to a recorded map showing its boundaries and bearing the seal and signature of a licensed land surveyor or, if the easement encumbers the entire property described in a deed of record, the easement may incorporate by reference the description in such deed, otherwise it shall refer to the liber and page of the deed or deeds of the record owner or owners of the real property burdened by the environmental easement. An environmental easement shall: (a) name the state, acting through the department, as grantee; (b) contain a complete description of any use restrictions and/or engineering control to which the real property is subject; (c) run with the land, binding the owner of the land and the owner’s successors and assigns; (d) include an acknowledgment by the commissioner of acceptance of the easement by the department; and (e) include an agreement to incorporate, either in full or by reference, the environmental easement in any leases, licenses, or other instruments granting a right to use the property that may be affected by such easement. 3. Until such time as the environmental easement is extinguished, the property deed and all subsequent instruments of conveyance relating to the subject property shall state in at least fifteen-point bold-faced type: “This property is subject to an environmental easement held by the New York State Department of Environmental Conservation pursuant to title 36 of article 71 of the environmental conservation law.” 4. An environmental easement granted pursuant to this title shall be enforceable in perpetuity. After the recording of the easement, each instrument transferring an interest in the area affected by the easement shall include a specific reference to the recorded easement. 5. An environmental easement granted pursuant to this section may be extinguished or amended only by a release or amendment of the easement executed by the commissioner and filed with the office of the recording officer for the county or counties where the land is situated in the manner prescribed by article nine of the real property law. 6. For any person who intentionally violates an environmental easement the department may revoke the certificate of completion provided by section 27-1419 of this chapter as to the relevant real estate. 7. An environmental easement shall be held only by the state, except that the state shall not be authorized or empowered to acquire or hold any environmental easement which is subject to the provisions of article fourteen of the constitution. 8. An environmental easement shall be duly recorded and indexed as such in the office of the recording officer for the county or counties where the land is situate in the manner prescribed by article nine of the real property law. The property deed and all subsequent instruments of conveyance relating to the property encumbered by the easement shall reference, by book and page number, the environmental easement. Such deed and instrument shall also specify that the eligible property is subject to the restrictions contained in such easement. An instrument for the purpose of creating, conveying, modifying, or terminating an environmental easement shall not be effective unless recorded. 9. The department shall include a copy of each environmental easement in the database created pursuant to section 27-1415 of this chapter and make such database readily searchable. 10. An environmental easement may be enforced in law or equity by its grantor, by the state, or any affected local government as defined in section 71-3603 of this title. Such easement is enforceable against the owner of the burdened property, any lessees, and any person using the land. Enforcement shall not be defeated because of any subsequent adverse possession, laches, estoppel, or waiver. No general law of the state which operates to defeat the enforcement of any interest in real property shall operate to defeat the enforcement of any environmental easement unless such general law expressly states the intent to defeat the enforcement of such easement or provides for the exercise of the power of eminent domain. It is not a defense in any action to enforce an environmental easement that: (a) it is not appurtenant to an interest in real property; (b) it is not of a character that has been recognized traditionally at common law; (c) it imposes a negative burden; (d) it imposes affirmative obligations upon the owner of any interest in the burdened property; (e) the benefit does not touch or concern real property; (f) there is no privity of estate or of contract; or (g) it imposes an unreasonable restraint on alienation. 11. Agents, employees, or other representatives of the state may enter and inspect the property burdened by an environmental easement in a reasonable manner and at reasonable times to assure compliance with the restriction. 12. The department may promulgate regulations establishing standards and procedures for environmental easements. S 71-3607. Coordination With Local Governments. 1. Whenever the department is granted an environmental easement, it shall provide each affected local government with a copy of such easement and shall also provide a copy of any documents modifying or terminating such environmental easement. 2. Whenever an affected local government receives an application for a building permit or any other application affecting land use or development of land that is subject to an environmental easement and that may relate to or impact such easement, the affected local government shall notify the department and refer such application to the department. The department shall evaluate whether the application is consistent with the environmental easement and shall notify the affected local government of its determination in a timely fashion, considering the time frame for the local government’s review of the application. The affected local government shall not approve the application until it receives approval from the department. S. 71-3609. Scope of this Title. This title shall not affect any interests or rights in real property which are not environmental easements, and shall not affect the rights of owners to convey any interests in real property which they could now create under existing law without reference to the terms of this title. Nothing in this title shall diminish the powers granted by any other law to acquire interests or rights in real property by purchase, gift, eminent domain, or otherwise and to use the same for public purposes. S. 71-3611. Severability. The provisions of this title shall be severable, and if any clause, sentence, paragraph, subdivision, or part of this title shall be adjudged by any court of competent jurisdiction to be invalid, such judgment shall not affect, impair or invalidate the remainder thereof, but shall be confined in its operation to the clause, sentence, paragraph, subdivision, or part thereof directly involved in the controversy in which such judgment shall have been rendered; provided that if an environmental easement created pursuant to this title is determined by any court of competent jurisdiction to be land or water or an interest in land or water subject to the provisions of article fourteen of the constitution, then the authority of the state to hold or acquire such easement and the conveyance to the state of such easement shall be void ab initio. S 3. This act shall take effect immediately. PART B Section 1. Article 15 of the environmental conservation law is amended by adding a new title 31 to read as follows: TITLE 31 GROUNDWATER PROTECTION AND REMEDIATION PROGRAM Section 15-3101. Short Title. 15-3103. Legislative Findings And Intent. 15-3105. Purpose. 15-3107. Groundwater Information Management. 15-3109. Groundwater Remediation Strategy. 15-3111. Rules And Regulations. S. 15-3101. Short Title. This title shall be known and may be cited as the “Groundwater Protection Act”. S. 15-3103. Legislative Findings And Intent. The legislature hereby finds and declares that: 1. The waters of the state are one of its most essential natural resources. 2. Adequate supplies of good quality groundwater
are critical to the health and welfare of the residents of the state and to
their economic well-being. Groundwater contamination exists at levels which
exceed applicable standards, criteria and guidance values at many sites
around the state, including inactive hazardous waste disposal sites,
brownfield sites, and sites contaminated by the discharge of petroleum. The
levels and types of contaminants, the extent of contamination, and the
present and potential impacts on public health and the environment vary
widely from site to site, but cumulatively could endanger the integrity of
the water resources of 3. Due to the complexity of groundwater contamination problems, the restoration of groundwater to its classified use may not currently be feasible at some sites. 4. It is the intent of the legislature that groundwater be protected for its classified use, the highest of which is drinking water. S 15-3105. Purpose. It is the intent of the legislature that the department develop a strategy to address contaminated groundwater and implement a program to remediate and manage groundwater resources in a manner that will ensure long-term sustainability. S 15-3107. Groundwater Information Management. Information collected pursuant to this section shall be incorporated into the geographic information system maintained by the department to track remedial programs, pursuant to section 3-0315 of this chapter. S 15-3109. Groundwater Remediation Strategy. No later than three years after the effective date of this title, the department, in consultation with the department of health, shall develop and publish a strategy to address the long-term remediation of groundwater contamination, including strategies to protect groundwater from future degradation from contaminated sites. 1. Such strategy shall govern all programs within the department responsible for groundwater protection and remediation. Such strategy shall include, but not be limited to: (a) Recognition that both short- and long-term remediation strategies may be necessary to address groundwater contamination. (b) Identification of the long-term groundwater remedial activities that are required to be taken by the state pursuant to title fourteen of article twenty-seven of this chapter for sites which the department has determined pose a significant threat, or which can be initiated by the state pursuant to other provisions of this chapter to address groundwater contamination. (c) 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: (i) the current or reasonably anticipated future use of contaminated groundwater as drinking water; (ii) the current or reasonably anticipated future use of a groundwater aquifer into which contaminated groundwater is flowing as drinking water; (iii) 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; (iv) community needs; (v) feasibility of remediation; and (vi) protection of natural resources and minimizing the impairment of the resource. Notwithstanding subparagraphs (i) through (vi) 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. 2. A public comment period of at least one hundred twenty days shall be held on the initial draft strategy. Such strategy shall be updated regularly based on progress made and the availability of new remedial technologies, scientific information, and field data. Each updated draft strategy shall be released to the public, and will require a public comment period of at least sixty days. 3. The department is responsible pursuant to title fourteen of article twenty-seven of this chapter for the remediation of off-site groundwater contamination emanating from sites being remediated by a volunteer, which sites have been determined to be a significant threat. Within six months of the determination of significant threat at a site being remediated by the volunteer the department shall bring an enforcement action against any parties known or suspected to be responsible for contamination at or emanating from the site which is the subject of such agreement. If such action cannot be brought, or does not result in the initiation of a remedial program by such party or parties at such site, the department shall use best efforts to begin a remedial program to perform the remediation of off-site contamination at such site within one year of the completion of such enforcement action or the completion of the volunteer’s remedial program, whichever is later. S 15-3111. Rules And Regulations. The commissioner shall promulgate rules and regulations necessary and appropriate to carry out the purposes of this title. S 2. This act shall take effect immediately. PART C Section 1. The environmental conservation law is amended by adding a new section 3-0315 to read as follows: S 3-0315. Geographic Information System. 1. The department shall create or modify an existing geographic information system, and maintain such system for purposes including, but not limited to, incorporating information from remedial programs under its jurisdiction, and shall also incorporate information from the source water assessment program collected by the department of health, data from annual water supply statements prepared pursuant to section eleven hundred fifty-one of the public health law, information from the database pursuant to title fourteen of article twenty-seven of this chapter, and any other existing data regarding soil and groundwater contamination currently gathered by the department, as well as data on contamination that is readily available from the United States geological survey and other sources determined |