N.Y. Comp. Codes R. & Regs. Tit. 6 §§ 375-2.11

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

Section 375-2.11 - Miscellaneous

(a) Prohibitions.

(1) Except in the event of an emergency, in which event the remedial party shall comply with section 375-1.5(b)(1) of this Part, no person shall undertake at a site listed in the Registry any physical alteration that constitutes storage, treatment, or disposal of any contaminant which served as the basis for such listing, unless such conduct:

(i) is exempted under section 373-1.1(d) of this Title or permitted under Part 373 of this Title, including corrective action under section 373-2.19 of this Title;

(ii) to provide for corrective actions at a treatment, storage or disposal facility pursuant to section 373-2.19 of this Title; or

(iii) is done with the express written approval of the department granted either by order or in such other manner as the commissioner shall direct.

(2) No person to whom a request has been made pursuant to ECL 27-1307(1) shall fail to comply therewith.

(3) No person to whom a request has been made pursuant to ECL 27-1309(1) shall fail to comply therewith.

(4) No person to whom an order has been issued pursuant to ECL 27-1313(3) shall fail to comply therewith.

(b) State environmental quality review act applicability. Remedy selection and implementation of remedial actions under department approved work plans pursuant to ECL article 27, title 13 are not subject to review pursuant to ECL article 8 and its implementing regulation (6 NYCRR Part 617), as an exempt action pursuant to the enforcement exemption provision.

(c) State funding: hazardous waste remedial fund.

(1) The department may expend moneys of the hazardous waste remedial fund provided for at SFL section 97-b for the following purposes:

(i) to pay, in whole or in part, the department's costs and expenses incurred in the development and implementation of a remedial program under the following circumstances:

(a) when a person responsible for a site, having been ordered to do so under section 375-2.1 of this Subpart, has failed to comply with such order;

(b) when a person responsible for a site cannot be identified or located;

(c) when circumstances exist that substantiate the making either the findings of the commissioner set forth at ECL 37-1313(b)(3)(b), or the findings of the Commissioner of Health set forth in section 1389-b.3.b of the Public Health Law but only to the extent necessary to address those circumstances unless the department, in the exercise of discretion, determines that it would be cost-effective to develop and implement the complete program;

(d) when the department, after making all reasonable efforts to secure voluntary agreement, as documented by the findings of the commissioner set forth at SFL section 97-b(4), has not secured a voluntary agreement by the owner, operator or other responsible person for a site. For purposes of this section, the phrase all reasonable efforts to secure voluntary agreement means the diligent conduct of a search to identify responsible parties by a method or methods appropriate to the circumstances of the particular site including, but not limited to, reviews of real property records, regulatory files of appropriate government agencies, publicly available financial information, and private business records obtained under ECL 27-0915; ECL 27-1307; and/or ECL 27-1309; and the selection of the owner and/or operator or other person responsible for a site that the department determines to be an appropriate party with which to negotiate; and diligent conduct of negotiations with that responsible party. Negotiations have been conducted diligently with a particular responsible party when the department informs that party of the department's intention to negotiate an order on consent with that party the objective of which is to commit that party to the development and/or implementation of a remedial program, and that party:

(1) does not respond to the department's notification;

(2) responds to the department's notification by refusing to negotiate;

(3) starts negotiations and thereafter discontinues same;

(4) starts negotiations and does not enter into a consent order authorized by section 375-2.5(a) of this Subpart to undertake the objective of the negotiations within the time frame established by the department's notification, which shall not be later than six months after the commencement of negotiations; or

(5) demonstrates to the department's satisfaction that it is unable to pay for the objective of the negotiation;

(ii) to pay for the cleanup or restoration to its original state of any area where contaminants were disposed of or possessed unlawfully contrary to ECL 27-0914;

(iii) to pay for site identification, classification, and investigation activities including, but not limited to, testing, analyses, and record searches, and the department's related administrative activities;

(iv) to pay for all other activities to develop and regularly update the plan required by ECL 27-1305(5) and ECL 27-1305(6); and

(v) to pay for response actions to clean up spills of contaminants or to abate other public health or environmental hazards caused by contaminants, except those provided for under the New York State Environmental Protection and Spill Compensation Fund, when an emergency exists as documented by the findings of the commissioner in such form as the commissioner may prescribe.

(2) The department must attempt to recover all costs and expenses incurred by the State associated with a site that are attributable to the identification thereof as a site and to the remedial program pertaining to such site.

N.Y. Comp. Codes R. & Regs. Tit. 6 §§ 375-2.11