N.Y. Comp. Codes R. & Regs. Tit. 6 §§ 375-6.6

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

Section 375-6.6 - Soil cleanup objectives for the protection of ecological resources

(a) Applicability. The soil cleanup objectives for protection of ecological resources must be considered and applied as set forth in this section for the upland soils at sites where terrestrial flora and fauna and the habitats that support them are identified.

(1) Protection of ecological resources soil cleanup objectives apply to sites or portions of sites where the department determines:

(i) ecological resources at or adjacent to a site, as set forth in subdivision (b) of this section:

(a) are present, or will be present under the reasonably anticipated future use of the site; and

(b) constitute an important component of the environment at, or in the vicinity of, the site;

(ii) an impact or threat to the ecological resource has been identified as set forth in subdivision (c) of this section; and

(iii) soil contaminant concentrations exceed the protection of ecological resources soil cleanup objectives, as set forth in subdivision (d) of this section.

(2) Protection of ecological resources soil cleanup objectives do not and/or will not apply to:

(i) sites or portions of sites where the condition of the land (e.g., paved, covered by impervious surfaces, buildings and other structures) precludes the existence of an ecological resource which constitutes an important component of the environment;

(ii) protection of the aquatic environment; or

(iii) such non-wild biota as:

(a) pets or livestock;

(b) agricultural or horticultural crops; and

(c) landscaping in developed areas.

(b) Identification of ecological resources. The presence of ecological resources shall be determined during the investigation of a site.

(1) The remedial party for a remedial program undertaken pursuant to either Subpart 375-2 or 375-4 of this Part shall conduct an ecological resource characterization as part of a fish and wildlife impact analysis according to department guidance to document the presence of fish, wildlife, plants and habitats both on and adjacent to the site.

(2) The remedial party for a remedial program undertaken pursuant to Subpart 375-3 of this Part shall conduct a resource characterization as part of the qualitative exposure assessment required by ECL 27-1415(2)(b) and in accordance with department guidance to document the presence of fish, wildlife, plants and habitats both on and adjacent to the site.

(3) The department shall determine whether the characterization conducted as set forth in paragraphs (1) and (2) of this subdivision:

(i) has identified ecological resources to be present at or adjacent to a site, or a portion thereof; and

(ii) if such ecological resources constitute an important component of the environment at, or in the vicinity of, the site.

(c) Consideration of impact or threat of impact. If ecological resources that constitute an important component of the environment at, or adjacent to, the site are determined to be present the protection of ecological resources soil cleanup objectives must be considered in the remedial program for the site.

(1) An impact or threat of impact exists when:

(i) a threat to the environment exists, as set forth in section 375- 2.7(a)(1)(i) to (iv) of this Part, as a result of contaminants in the soil of the site, unless the department determines that a more stringent cleanup is necessary to met the requirements of section 375-2.8(a) and (b)(1) of this Part; or

(ii) an ecological resource is, or is potentially, impacted by contaminants in the soil of the site.

(d) Soil cleanup objectives. The protection of ecological resources soil cleanup objectives are the same for both unrestricted and restricted use and are incorporated in the soil cleanup objective tables.

(1) For an unrestricted use site, Table 375-6.8(a) of this Subpart presents the lower of the protection of groundwater, ecological resources and unrestricted public health soil cleanup objectives, as calculated and presented in the technical support document.

(2) For a restricted use site, Table 375-6.8(b) of this Subpart includes a protection of ecological resources column, which is applicable to a site regardless of the identified use, as set forth in subdivision (a) of this section.

(3) Protection of ecological resources soil cleanup objectives were not developed for contaminants identified in Table 375-6.8(b) of this Subpart as "NS". For such contaminants, the applicant may be required to calculate a protection of ecological resources soil cleanup objective for any site, as set forth in section 375-6.9 of this Subpart.

N.Y. Comp. Codes R. & Regs. Tit. 6 §§ 375-6.6