N.Y. Comp. Codes R. & Regs. Tit. 6 §§ 375-1.2

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

Section 375-1.2 - Definitions

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

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

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

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

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

(b) "Brownfield site" means any real property where a contaminant is present at levels exceeding the soil cleanup objectives or other health-based or environmental standards, criteria or guidance adopted by the Department that are applicable based on the reasonably anticipated use of the property, in accordance with applicable regulations. Such term shall not include real property identified in subdivision 375-3.3(b).

(c) Brownfield site remedial program means a remedial program, as defined in subdivision (ap) of this section, at a brownfield site.

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

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

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

(g) Contaminant means hazardous waste and/or petroleum as such terms are defined in subdivisions (w) and (ah) of this section.

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

(i) Days means calendar days.

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

(k) Disposal means the abandonment, discharge, deposit, injection, dumping, spilling, leaking or placing of any contaminant so that such contaminant or any related constituent thereof may enter the environment. Disposal also means the thermal destruction of a contaminant and the burning of a contaminant as fuel for the purpose of recovering usable energy.

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

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

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

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

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

(q) Environmental easement means an interest in real property, created under and subject to the provisions of ECL article 71, title 36 which contains a use restriction and/or a prohibition on the use of land in a manner inconsistent with engineering controls; provided that no such easement shall be acquired or held by the state which is subject to the provisions of article 14 of the Constitution of the State of New York.

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

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

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

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

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

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

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

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

(3) source, byproduct, or special nuclear material from a nuclear incident, as those terms are defined in the Atomic Energy Act of 1954, if such release is subject to requirements with respect to financial protection established under section 170 of such act (42 USC 2210) or, for the purpose of section 104 of CERCLA, or any other response action, any source, byproduct, or special nuclear material from any processing site designated under section 102(a)(1) or 302(a) of the Uranium Mill Tailings Radiation Control Act of 1978 (42 USC 7912 [a][1] or 7942[a]); nor

(4) petroleum as defined in subdivision (ah) of this section, even if appearing on the list promulgated pursuant to ECL 37-0103.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(1) site characterization and remedial investigation activities needed to develop and evaluate remedial alternatives;

(2) interim remedial measures;

(3) design activities;

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

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

(6) restoration of the environment;

(7) appropriate involvement by local governments and by the public; and

(8) oversight by the department.

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

(1) an inactive hazardous waste disposal site;

(2) a brownfield site; or

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

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

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

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

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

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

(2) non-aqueous phase liquids; or

(3) grossly contaminated media.

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

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

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

N.Y. Comp. Codes R. & Regs. Tit. 6 §§ 375-1.2

Amended New York State Register August 3, 2016/Volume XXXVIII, Issue 31, eff. 8/12/2016