N.Y. Comp. Codes R. & Regs. Tit. 6 §§ 375-3.8

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

Section 375-3.8 - Remedial program

(a) The remedy shall be fully protective of public health and the environment including, but not limited to, groundwater according to its classification pursuant to ECL 17-0301, drinking water, surface water and air (including indoor air), sensitive populations, including children and ecological resources, including fish and wildlife. In addition, a remedy will be selected upon consideration of the following:

(1) a remedial program that achieves a permanent cleanup of a contaminated site, including the restoration of groundwater to its classified use, is preferred over a remedial program that does not do so;

(2) the selection of a remedy will take into account the current, intended, and reasonably anticipated future land uses of the site and its surroundings; and

(3) the risk presented by residual contamination as defined at ECL 27- 1405.28 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, except:

(i) for remedies developed in accordance with paragraph (e)(4) of this section, with a cleanup level which exceeds the parameters in this paragraph, the remedial party must demonstrate that such level would be protective of public health and the environment. This demonstration must be included in the alternatives analysis developed in accordance with subdivision (f) of this section; and

(ii) a cleanup level which exceeds the parameters in this paragraph, may be approved by the department under paragraph (e)(4) of this section, 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 State Commissioner of Health, that such level shall be protective of public health and the environment.

(b) Scope of investigation. Remedial investigations and final investigation reports must be completed in accordance with ECL 27-1411(1); ECL 27- 1415(2) and this Part.

(1) On-site contamination. Applicants must fully investigate and characterize the nature and extent of contamination on the brownfield site.

(2) Off-site contamination. Responsibility for off-site contamination is determined by the applicant's status:

(i) a volunteer shall perform a qualitative exposure assessment of the contamination that has migrated from the site in accordance with ECL 27- 1415(2)(b) and department guidance. For sites being addressed by a volunteer, the volunteer has no obligation to implement a remedy to address an off-site exposure identified by this assessment. The department will:

(a) 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 within six months of the determination that a site poses a significant threat; or

(b) 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, 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; or

(ii) a participant shall fully investigate and characterize the nature and extent of contamination that has migrated or emanated from the site to off-site locations.

(3) The final remedial investigation report must demonstrate whether conditions at the site meet the applicable unrestricted use soil cleanup objectives set forth in Table 375-6.8(a) of this Part without remediation.

(4) Where the applicable unrestricted use soil cleanup objectives set forth in Table 375-6.8(a) of this Part will not be achieved, any determination that the requirements of the Brownfield Cleanup Program have been met without the need for remediation must be supported by an alternatives analysis.

(c) Remedy selection.

(1) Applicants must, based upon the characterization of the nature and extent of contamination on-site and qualitative exposure assessment, select or propose a remedy for the contamination present on the site and address further contaminant migration from the site.

(2) Participants must also, based upon the characterization of the nature and extent of contamination that has migrated from the site, propose or select a remedy which addresses the off-site contamination.

(3) The department will select, or approve, a remedy for a site after consideration of an alternatives analysis, including an evaluation consistent with section 375-1.8(f) of this Part, presented in, or made part of, a site specific remedial work plan in accordance with ECL section 27-1413(2).

(4) Selection of a remedy. For sites that the department has determined:

(i) constitute a significant threat, the department shall select the remedy from the department-approved alternatives analysis; or

(ii) do not constitute a significant threat, the applicant may select the remedy from a department-approved alternatives analysis.

(d) Application of the soil cleanup objectives.

(1) General. The department may approve a remedial program that utilizes different tracks and soil cleanup objectives for different uses between different areas of a site, provided such areas can be defined and described in the environmental easement and the necessary institutional and engineering controls can be effectively imposed, implemented, operated, monitored and maintained in accordance with the department-approved site management plan.

(2) Cleanup objectives for other media. The exposure to public health and the environment resulting from contamination in all other environmental media shall be evaluated and cleanup objectives to eliminate or mitigate the exposure shall be proposed by the remedial party and any cleanup objectives approved by the department for other media will be included in the alternatives analysis to ensure that the remedial program meets the requirements of this subdivision and section 375-1.8 of this Part.

(e) Cleanup tracks. For sites or portions of sites where the department has determined that remediation is needed to meet the remedial program requirements, each remedial alternative that is developed and evaluated shall, in addition to all other requirements in this section and section 375-1.8(c) of this Part, conform to the requirements of one of the following cleanup tracks.

(1) Track 1: Unrestricted use. The following provisions apply to a site, or portion thereof, being addressed pursuant to Track 1:

(i) the remedial program shall achieve a cleanup level that will allow the site to be used for any purpose without any restrictions on the use of the site as described in section 375-1.8(g)(1)(i) of this Part;

(ii) the soil component of the remedial program shall achieve the unrestricted soil cleanup objectives as set forth in Table 375-6.8(a) of this Part for all soils above bedrock;

(iii) the remedial program shall not include the use of long-term institutional or engineering controls; provided, however, that a restriction on groundwater use may be included as a component of the remedial program if the applicant:

(a) is a volunteer; and

(b) has demonstrated to the department's satisfaction that there has been a bulk reduction in groundwater contamination to asymptotic levels;

(iv) the remedial program may include the use of short-term employment of institutional or engineering controls provided:

(a) the remedial program includes an active treatment system, either ex-situ or in-situ, which will operate for, or require, no more than five years to meet the applicable contaminant-specific soil cleanup objectives or remedial goals established for other contaminated media;

(b) the remedial program requires the institutional control to assure the operation and integrity of the remedy, as well as to address potential human health exposures during this period; and

(c) the remedial program includes a provision for the applicant to implement an alternative remedy to meet the soil cleanup objectives in the event that the short-term institutional period is exceeded; and

(v) the department may require the applicant, or the applicant may request, to develop a soil cleanup objective for a contaminant not included in Table 375- 6.8(a) as set forth in section 375-6.9 of this Part.

(2) Track 2: Restricted use with generic soil cleanup objectives. The following provisions apply to a site, or portion thereof, being addressed pursuant to Track 2:

(i) the remedial program may provide for the restriction of the use of the site as described in section 375-1.8(g)(2)(i) of this Part;

(ii) the soil component of the remedial program shall achieve the lowest of the three applicable contaminant-specific soil cleanup objectives for all soils above bedrock, as set forth in sections 375-6.4, 375-6.5 and 375-6.6 of this Part, except as provided in subparagraph (iii) of this paragraph;

(iii) the requirement to achieve contaminant-specific soil cleanup objectives as set forth in Table 375-6.8(2) of this Part for all soils above bedrock shall not apply to soils at a depth greater than 15 feet below ground surface, provided that:

(a) the soils below 15 feet do not represent a source of contamination;

(b) the environmental easement for the site requires that any contaminated soils remaining at depth will be managed along with other site soils, pursuant to a site management plan;

(c) off-site groundwater does not exceed standards; and

(d) on-site groundwater use is restricted; and

(iv) the remedial program shall not use long-term institutional or engineering controls to achieve the restricted soil cleanup objectives. The use of short-term institutional or engineering controls is allowed, provided:

(b) the remedial program requires the institutional control to assure the operation and integrity of the remedy, as well as to address potential human health exposures during this period; and

(v) the remedial program may include the use of long-term institutional or engineering controls to address contamination related to other media including, but not limited to groundwater and soil vapor; and

(vi) the department may require the remedial party, or the remedial party may request, to develop a soil cleanup objective for a contaminant not included in Table 375-6.8(b) as set forth in section 375-6.9 of this Part.

(3) Track 3: Restricted use with modified soil cleanup objectives. The remedial program for a site being addressed pursuant to Track 3 shall satisfy the provisions for a Track 2 remedial program; provided, however, the department may approve the modification of one or more of the contaminant-specific soil cleanup objectives set forth in Table 375-6.8(b) of this Part based upon site-specific data. Any such modification shall be performed in accordance with section 375-6.9 of this Part.

(4) Track 4: Restricted use with site-specific soil cleanup objectives. The following provisions apply to a site, or portion thereof, being addressed pursuant to Track 4:

(i) in developing the site-specific soil cleanup objectives, the applicant may, solely or in combination:

(a) use the soil cleanup objectives, as set forth in Subpart 375-6 of this Part;

(b) develop or modify site-specific soil cleanup objectives, as set forth at section 375-6.9 of this Part; or

(c) propose site-specific soil cleanup objectives which are protective of public health and the environment;

(ii) the remedial program may include the use of long-term institutional or engineering controls to address all media; and

(iii) exposed surface soils in a Track 4 remedy will be addressed as follows:

(a) for residential use:

(1) the top two feet of all exposed surface soils which exceed the site background values for contaminants of concern and are not otherwise covered by the components of the development of the site (e.g., buildings, pavement), shall not exceed the applicable contaminant-specific soil cleanup objectives as set forth in subparagraph (2)(ii) of this subdivision; and

(2) where it is necessary to utilize off-site soil to achieve this requirement, the soil brought to the site will satisfy the requirements of section 375- 6.7(d) of this Part;

(b) for commercial use:

(1) the top one foot of all exposed surface soils which exceed the site background values for contaminants of concern and are not otherwise covered by the components of the development of the site (e.g., buildings, pavement), shall not exceed the applicable contaminant-specific soil cleanup objectives as set forth in subparagraph (2)(ii) of this subdivision; and

(2) where it is necessary to utilize off-site soil to achieve this requirement, the soil brought to the site will satisfy the requirements of section 375- 6.7(d) of this Part;

(c) for industrial use:

(2) where it is necessary to utilize off-site soil to achieve this requirement, the soil brought to the site will satisfy the requirements of section 375- 6.7(d) of this Part.

(5) All Tracks. For remedial programs under all Tracks, the threat to public health and the environment resulting from contamination in environmental media other than soil shall be evaluated in the development of remedial alternatives and addressed in the alternatives analysis to ensure that the remedial program meets the requirements of ECL 27-1415(1), subdivisions (a) and (f) of this section, and section 375-6.7 of this Part.

(f) Alternatives analysis. An alternatives analysis evaluates each remedial alternative developed for a brownfield site, using the selection factors set forth in section 375-1.8(f) of this Part.

(1) An alternatives analysis must be prepared for each site, or operable unit of a site, unless:

(i) the department has selected a remedy for the site in a record of decision under Subpart 375-2 or Subpart 375-4 of this Part prior to the approval of the application for participation;

(ii) the remedy proposed meets the requirements of Track 1; or

(iii) the department has approved the use of a presumptive remedy proposed from a department-approved list of presumptive remedies.

(2) Contents of an alternatives analysis. Each alternatives analysis must include, but is not limited to:

(i) a description of each alternative evaluated in the analysis. Alternatives must be developed and evaluated which address:

(a) on-site contamination if the applicant is a volunteer; and

(b) on-site and off-site contamination if the applicant is a participant;

(ii) a discussion of how each alternative would achieve the requirements of the remedial program, including the Track-specific requirements;

(iii) an analysis of each alternative against the remedy selection factors set forth in section 375-1.8(f) of this Part followed by a comparison of this evaluation to any other alternatives under consideration;

(iv) an evaluation of the reliability and viability of the long-term implementation, maintenance, monitoring, and enforcement of any proposed institutional or engineering controls set forth in section 375-1.8(h) of this Part required by ECL 27-1415(7)(a);

(v) if applicable, an evaluation of feasible remedial alternatives that can achieve groundwater plume stabilization in accordance with section 375-1.8(d) of this Part;

(vi) an identification of the alternative preferred by the applicant for selection;

(vii) a summary of the proposed remedy and basis for concluding that the proposed remedy represents the best alternative among those considered; and

(viii) other information required by the department.

(3) Alternatives to be evaluated. The alternatives analysis proposing a remediation:

(i) pursuant to Track 1, shall develop and evaluate at least one remedial alternative capable of achieving the requirements of paragraph (e)(1) of this section; or

(ii) pursuant to a Track other than Track 1, shall develop and evaluate two or more remedial alternatives, as follows:

(a) at least one unrestricted alternative that meets the requirements of Track 1 as set forth in paragraph (e)(1) of this section, unless a presumptive remedy is selected from a department-approved list;

(b) such other alternatives which may be developed by the applicant for the proposed use of the site;

(c) for sites determined by the department to constitute a significant threat, such additional alternatives as the department may require; and

(d) for sites determined by the department not to constitute a significant threat, the department may require a Track 2 evaluation if one has not already been considered pursuant to subparagraph (i) of this paragraph or subclauses (2)-(4) of this clause after considering the following factors:

(1) the degree to which the remedy selection criteria would be better satisfied by a Track 2 cleanup;

(2) the degree of impact a Track 2 cleanup would have on the applicant's ability to successfully cleanup and/or redevelop the property;

(3) the benefit to the environment to be realized by the expeditious remediation of the property; and

(4) the economic benefit to the State to be realized by the expeditious remediation of the property.

(4) Plume stabilization. In developing remedies for a site where plume stabilization in accordance with section 375-1.8(d) of this Part is a necessary component of the remedy where such plume is emanating from an on-site source.

(i) A participant shall address, to the extent feasible, the on-site and off-site plume. This requirement includes such actions to maintain and monitor any stabilization of the plume.

(ii) A volunteer shall address, to the extent feasible, the on-site plume and prevent the further migration of any plume off-site at the site boundary. This requirement includes such actions to maintain and monitor any stabilization of the plume.

(g) Remedial work plan.

(1) The department will issue a decision document describing the remedy for a site, unless it has previously issued a record of decision under Subpart 375-2 or Subpart 375-4 of this Part prior to the approval of an application to this program. The remedial work plan shall implement the decision document or record of decision.

(2) A remedial work plan must be prepared in accordance with ECL 27-1411 and 27-1415 and must provide for the development and implementation of the remedy, selected as set forth in paragraph (c)(4) of this section, for:

(i) on-site contamination if the applicant is a volunteer; and

(ii) on-site and off-site contamination if the applicant is a participant.

(3) A remedial work plan must include at a minimum:

(i) a summary of the site history and the nature and extent of contamination;

(ii) remedial action objectives;

(iii) a summary of the current, intended, and reasonably anticipated future use of the site;

(iv) identification of the cleanup track to be used for remediation of the site as described in subdivision (e) of this section;

(v) identification and evaluation of any and all institutional or engineering controls to be employed as part of the site remedy as required pursuant to section 375-1.8(h) of this Part, if applicable, and subparagraph (f)(2)(iv) of this section;

(vi) an alternatives analysis as set forth in subdivision (f) of this section; and

(vii) other information as required by the department.

(4) Where a remedial work plan will also serve as the remedial design document for a site it shall:

(i) be certified by a professional engineer;

(ii) include, but not be limited to, the following:

(a) plans and specifications sufficient to construct the remedy;

(b) a site health and safety plan;

(c) a community health and safety plan; and

(d) a quality assurance and quality controls plans for sampling, analysis, and construction; and

(iii) a site management plan, if the remedy includes any institutional or engineering controls.

(h) Institutional and engineering controls.

(1) Institutional and engineering controls can be included as part of a remedial work plan provided there is compliance with section 375-1.8(h) of this Part and they are evaluated in the alternatives analysis.

(2) At nonsignificant threat sites where contaminants in groundwater at the site boundary contravene drinking water standards, the institutional and engineering control certification shall:

(i) 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;

(ii) every five years the remedial party or owner shall certify that the assumptions made in the qualitative exposure assessment remain valid; and

(iii) the requirement to provide such certifications may be terminated as set forth in ECL 27-1415(7)(c).

N.Y. Comp. Codes R. & Regs. Tit. 6 §§ 375-3.8