N.Y. Comp. Codes R. & Regs. Tit. 6 §§ 375-3.3

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

Section 375-3.3 - Eligibility

(a) Eligible sites. Any real property that meets the requirements of a brownfield site as defined in ECL article 27, title 14.

(1) In determining eligibility, the department shall consider only contamination from on-site sources.

(2) In determining eligibility, the department shall not consider:

(i) contamination of structures located at the site, due to stored materials, electrical appurtenances, lead paint or asbestos, etc.; or

(ii) material not constituting a contaminant as defined in section 375-1.2(g) of this Part (e.g., construction and demolition debris, abandoned consumer goods or other solid waste present on the site).

(3) In determining eligibility, the department may:

(i) determine that contiguous properties or parcels, or only a portion of any proposed site, meets the statutory definition of brownfield site, and may approve contiguous properties or parcels or only a portion of a site for participation in the Brownfield Cleanup Program;

(ii) request performance of a subsurface investigation (commonly referred to as a Phase II) in accordance with current applicable industry standards and guidance if the department is unable to determine whether the site is a brownfield site based upon the information contained in the application.

(b) Ineligible sites. Any real property, which is:

(1) on the Registry as class 1 or class 2;

(2) listed on the national priorities list established under the authority of 42 USC, section 9605;

(3) the subject of an ongoing enforcement action pursuant to ECL article 27, title 7 or title 9 involving solid or hazardous waste;

(4) subject to an order for cleanup under article 12 of the Navigation Law ("oil spill prevention, control, and compensation") or ECL article 17, title 10 ("control of the bulk storage of petroleum"), except such property shall not be deemed ineligible if it is subject to a stipulation agreement; or

(5) subject to any other ongoing State or Federal environmental enforcement action related to contamination at or emanating from the site.

(c) Ineligible parties. A person is ineligible for participation in the Brownfield Cleanup Program if subject to:

(1) a pending action or proceeding relating to the proposed brownfield site 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;

(2) an order providing for the investigation, removal, or remediation of contamination relating to the proposed brownfield site; or

(3) an outstanding claim by the New York Environmental Protection and Spill Compensation Fund for cleanup and removal costs under article 12 of the Navigation Law; related to the site for which participation is sought.

N.Y. Comp. Codes R. & Regs. Tit. 6 §§ 375-3.3

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