Brownfield definition

An area or structure where hazardous waste and/or petroleum has come to be located--or the redevelopment or reuse of which may be complicated by the potential presence of contamination--that does not fall into various excluded categories. [Includes petroleum, but definition--which parallels that under federal law--is cumbersome.]

Any real property, redevelopment or reuse of which may be complicated by the presence or potential presence of a hazardous waste, pollutant, or contaminant..  [“Contaminant” includes petroleum.]

Coverage of “hazardous substance” sites

Yes.

Yes.

Eligible sites

BF site is defined as “an area or structure where hazardous waste and/or petroleum has been deposited, disposed of, placed, or otherwise come to be located that is not:

1.         A site on the NPL.

2.      Emergency response sites involving a new release after the bill's effective date.

3.         A site on the State Registry as a Class 1 or 2 site—unless the application is received (within 6 mos.) and the volunteer is not subject to an enforcement action or to a permit that includes closure requirements.

4.     Site subject to a permit under Title 7 or Title 9--other than an interim status permit.

5.     Site subject to an order that includes specific closure requirements or specific remedial measures  (unless a corrective action plan has not been approved by DEC).

See also “grounds for rejecting a VCP application,” below.

Includes all BF sites, including eligible response sites defined in section 101(41) of the federal Act, unless the BF site is:

1.         Listed in the State Registry as a Class 1 site.

2.         Listed on the NPL or subject to a federal order.

3.         A TSDF subject to a permit (other than interim status) describing closure requirements or an order requiring specific remedial measures—unless corrective action has not been approved by DEC.

4.         Listed in the State Registry as a Class 2 site, where such site is subject to an order requiring specific remedial measures (unless a ROD has not been completed and approved by DEC); provided, however, that if the Applicant is a Responsible Party, the application to participate in the VCP must be made within 6 mos. of DEC’s notice.

5.         A site contaminated by hazardous waste as a result of new release events (after the effective date of this section) requiring emergency response and causing a significant threat to human health and the environment..

The VCP application form includes a statement that the BF site does not fall into one of the eligibility exceptions, and identifies the responsible party status of the volunteer.

1. Listed in the State Registry as a Class 1 or 2 site.
    
2. Listed on the NPL.
    
3. Subject to an enforcement action under ECL Art. 27, title 7 or 9.
    
4. Subject to a cleanup order pursuant to Art. 12 of the navigation law or ECL Art. 17, title 10.
    
5.  Subject to any other on-going state or federal "environment enforcement action."

Distinction between cleanup volunteers who caused or contributed to the contami-nation and those that did not.

Yes. “Contributory Responsible Party” volunteers (caused or contributed to the contamination) have a 6-month time window to participate in the VCP after which they are barred.  “CRP” volunteers must investigate and/or remediate both on- and offsite contamination emanating from the site.  “Non-Contributory Responsible Party” (current owner or operator who did not cause or contribute to the contamination) and Non-Responsible Party volunteers must focus on onsite contamination and need only investigate the potential for off-site contamination.  (If offsite contamination is a problem, DEC must address this itself and/or force the responsible party to do so.)

Yes. 

Once a VCP application has been made with respect to a BF site, such site shall not be listed in any spill report or on the inactive hazardous waste site Registry (unless the site was so listed prior to the effective date of this section), as long as the volunteer is complying in good faith.  And DEC may take no action under § 176 of the Navigation Law to clean up or remove a petroleum discharge unless there is a significant threat to human health and the environment.

Defines a “non-contributory responsible party” as any person who currently owns or operates a brownfield site, and is not a contributory responsible party in regard to that site.”  Defines “non-responsible party” to mean “any person who is not a responsible party” as of the date of the party’s submission of a VCP application.  Such a person does not become a “non-contributory responsible party” merely by purchasing or acquiring the property after submitting a VCP application.  A “responsible party” is either a contributory or a non-contributory responsible party.  Work plan for a contributory RP requires the investigation and characterization of the nature and extent of contamination emanating from the BF site.  A non-contributory RP (or a subsequent owner or operator) need only perform an exposure assessment that evaluates the pathways by which a receptor could be exposed to such contamination, in order to determine the risk to public health and the environment from any contamination emanating from the property.  Where remediation is necessary, a contributory RP must also provide for the remediation of contamination emanating from the site.

"Responsible party" is as broad as the CERCLA definition (does not differentiate between the current owner/operator and the owner/operator at the time of disposal).

"Non-responsible party" includes a person who would otherwise be defined as an RP but who can establish an "affirmative defense" or is a "not-for-profit corporation."

Special dispensations to "non-responsible" parties:
    * may offset any required technical assistance grant payments against reimbursable state costs.
    * not subject to recovery of state costs incurred before the effective date of a BF cleanup agreement.
    * not required to provide an enforceable guarantee, including financial assurance, where institutional controls are in place, that an active commercial or industrial use will be in place within 2 years.
   * non-RP is responsible for remediation of on-site contamination but not contamination emanating from the site.
   * Although he must investigate both on- and off-site GW contamiantion, the non-RP may qualify for "Track 1" (unrestricted use) remediation standards where long-term groundwater remediation is proposed after the bulk reduction of GW contamination to asymptotic levels has been achieved--even where long-term employment of institutional or engineering controls is necessary.
   * Subject to only site-specific, short-term GW remediation where there is multi-source GW contamination.
   * Not subject to the liability reopener based on a change in environmental standards--where a "Track 1" (unrestricted use) remedy is carried out.

Within 3 mos. of the execution of the cleanup agreement with a non-RP, DEC "shall bring an enforcement action" against any parties known or suspected to be responsible for soil or groundwater contamination at or emanating from the site.  (If such action cannot be brought, or is not successful, DEC must begin a remedial program within 1 year.)  [While it is appropriate for liability to attach to RPs, this is a curious departure from the tenets of the inactive hazardous waste site program.   Without regard to Registry listing or any significant risk determination, this provision triggers mandatory enforcement action against the responsible owner/operators merely because a third-party, such as a prospective purchaser, wishes to enter the brownfields cleanup program.  It is not difficult to imagine the chilling effect this provision is likely to have on the willingness of a brownfield site owner to sell the property to a third-party.]
 

Grounds for rejecting a VCP application

Only if: (a) application is incomplete; (b) there is a pending action or proceeding against the applicant and the applicant is “recalcitrant and not cooperating”; and/or (c) DEC determines that the site doesn’t meet the definition of a “brownfield” site (i.e., one of the exclusions applies).

Not explicitly stated.

How clean is clean?

1.         All volunteers must carry out “source removal” (to the practical limit of physical removal) to avoid cross-media contamination and offsite migration—unless source removal cannot be “economically and feasibly performed” because of pervasive area wide soil contamination.

2.         If residual contamination meets applicable cleanup levels, no further action is required and a liability release/CNTS is issued.

3.         If residual contamination exceeds applicable cleanup levels, additional cleanup must be done to satisfy Category 1, 2, or 3 cleanup levels--except that, if no further investigation or remediation can be implemented or is justified since the residual contamination levels are too low yet slightly above the applicable cleanup levels, the volunteer shall receive a liability release/CNTS with an additional requirement that the site must be monitored every 5 years (with results submitted to DEC) and appropriate institutional controls must be developed and implemented.

4.      If completion of source removal does not satisfy any of the applicable cleanup levels, additional cleanup is required to protect public health and the environment..  If the volunteer intends to develop the site into an industrial or commercial use, the volunteer must select the additional remedy by comparing the economic and technical feasibility of a Category 1 and a Category 2 cleanup based on the intended use.  If the volunteer then selects and implements a Category 1 cleanup, the volunteer will receive priority for economic development incentives provided for in the bill.

5.         Category 1 = cleanup to allow unrestricted use of the site without reliance on institutional or engineering controls; Category 2 = cleanup to protect health and the environment for the site’s current, intended, or reasonably anticipated residential, commercial, or industrial use and would consider the use of institutional or engineering controls; and Category 3 = cleanup using site-specific data (in accordance with pre-set formulas and models) based on the site’s contemplated use and considering institutional or engineering controls.

6.         A Technical Advisory Panel, in addition to recommending multi-category cleanup levels, will also recommend special “presumptive remedies” for pervasive (but low level) contamination which does not meet applicable numerical standards.  (The Commissioner  is authorized to develop a list of “presumptive remedial strategies” that are appropriate for a particular site and/or contaminant types.)

7.         The Panel has 18 mos. to complete its work.  Until DEC promulgates rules and regulations to implement the Panel’s recommendations, it must determine cleanup levels for soil contaminants using site-specific data.

8.         For Class 1 and 2 Registry sites, there is a presumption for surface soil remediation of the top 6 inches of soil to “Soil Category 1” for residential uses—where the remediation is carried out by an RP at a site that is not in active industrial or commercial use, and is adjacent to residential uses that are threatened by the contamination.  (This presumption may be overcome by written findings by the Commissioner, after opportunity for public participation, that a lesser remedy will be adequately protective.)

1.         Defines “pervasively contaminated soil” as that which has contaminants that are widespread such as soil contaminated as a result of historic fill or airborne contaminants—unless such contaminants are associated with specific on site activities that generated or resulted in the disposal of the contamination.

2.         A remediation work plan must provide for remediation of onsite (and offsite—for contributory RPs) contamination.

3.         It must demonstrate compliance with applicable standards and how the selected remedies will address 6 “balancing criteria” (short-term impacts and effectiveness; long-term effectiveness and permanence’ reduction in toxicity, mobility and/or volume; implementability; cost effectiveness; and community acceptance).

4.         For off-site contamination, a non-contributory RP volunteer must include in the work plan “the identity of any known contributory” RP and “the known circumstances of such contributory” RPs “relationship with the contamination.”

5.         A contributory RP volunteer may seek to resolve responsibility for remediating off-site groundwater [contamination], where contamination emanating from the site is combining with significant contamination from other sources, by contributing to “an ongoing or planned effort to remediate the contamination.”

6.         Work plans shall ensure the protection of public health and the environment, including the protection of all current and future uses of the site and adjacent properties.

7.         An 8-member Technical Advisory Panel is created within DEC with the duty to develop (with 12 mos.) recommendations to DEC regarding pre-approved cleanup strategies to be employed in BF program Track 2.  Where there are at least 2 sites with similar characteristics, the Panel is to develop pre-approved cleanup strategies for sites with such similar characteristics that reflect the remedies undertaken pursuant to Title 13 and remedial technologies identified by the EPA REACH IT program.  Within 12 mos., the Panel is to develop pre-approved cleanup strategies applicable to sites with pervasively contaminated soil where such contamination is low level but not meeting the numerical standards applicable to remediation of soils on residential property (shall include conservative approaches to creating protective exposure buffers).

8.         All pre-approved cleanup strategies must describe, at a minimum: how contamination sources will be remediated; short-term and long-term groundwater remediation strategies; and the point at which each pre-approved cleanup strategy will be deemed complete for purposes of issuing a certification of completion.

9.         Within 12 mos., the Panel must develop a definition of “source of contamination” and develop groundwater remedial strategies that meet the requirements of this title.

10.      Within 6 mos. of the Panel’s recommendations, and with due consideration to the proposed pre-approved cleanup strategies, the DEC Commissioner shall promulgate regulations that set forth clean up standards and remedial strategies.  These standards and remedies shall be protective and will be developed in accordance with 4 remedial tracks.

11.      Track 1 = unrestricted use (cleanup level that will allow the site to be used for any purpose without restriction—and without ICs or ECs; will include a table of cleanup standards for contamination in soil, and a description of pre-approved remedial technologies that may be used to achieve the standards based on site specific conditions ).  Track 2 = pre-approved remedies (alternatives by which an applicant may remediate a site using a pre-approved remedy based on a set of site-specific considerations, including inter alia impact on groundwater and depth of contamination.  Track 3 = site specific remediation (a remedy other than a pre-approved remedy, where the applicant demonstrates that the proposed remedy is protective over the short- and long-term.  To the extent IC/ECs are required, the applicant must demonstrate that a permanent remedy is not feasible).  Track 4 = for Class 2 Registry sites (site remediation must conform  to requirements of Title 13 and implementing regulations).

12.      For all tracks, exposed surface soils must be remediated to the numerical standards developed for Track 1, and sources of contamination must be removed unless DEC determines that this is infeasible.  In all cases, unless additional protection is feasible, the level of risk associated with soil cleanup levels for individual contaminants shall be an excess cancer risk of one in a million for carcinogenic end points and a hazard index of one for non-cancer end points for each category.

1. Remedial goal: to achieve a complete and permanent cleanup of the site that would allow the site to be used for any purpose without restriction and without reliance on the long-term employment of institutional and engineering controls.  All remedies "shall" be protective of groundwater.
    
2. The remedial program for a BF site must be selected after due consideration of 8 factors (ARARs [applicable or relevant and appropriate standards]; overall protectiveness; short-term effectiveness; long-term effectiveness; reduction of toxicity, mobility, and volume; feasibility; community acceptance; and land use).
    
3. DEC may not approve a remedial program which would require restrictions on site use if, inter alia, the site is adjacent to real property used for residential use, it is adjacent to important cultural or natural resources, etc.
    
4. The draft remedial investigation work plan must provide for a full characterization of the nature and extent of contamination at a BF site and contamination emanating from such site, including on-site and off-site groundwater contamination.
    
5. Remediation must meet remedy selection requirements for one of three remedial tracks:
   Track 1 = cleanup to allow unrestricted use of the site without reliance on institutional or engineering controls (DEC must also consider the feasibility of achieving more stringent objectives based on field data and experience--especially where there are gaps in scientific data);
   Track 2 = presumptive remedies (if there are multiple media and groups of contaminants and the applicant chooses a  presumptive remedy that is ranked lower than other presumptive remedies, a rationale must be provided);
   Track 3 = site specific restricted use (if the remedial program will not achieve a complete and permanent cleanup, therefore requiring restrictions on site use and/or long-term institutional or engineering controls, the remedy selection process must not be inconsistent with the NCP--provided that NCP consistency is not required IF DEC has found that the BF site does not constitute a "significant threat" AND the applicant documents the development and evaluation of at least 2 remedial alternatives, including an unrestricted use alternative).
   
   Innovative technologies may not be used without the provision of adequate evidence of the effectiveness of the proposed technology.
    
6. For all tracks, surface soils (down to 3 feet) must be remediated to the generic contaminant-specific remedial action objectives developed for Track 1.
    
7. Contaminant-specific remedial action objectives for soil must, at a minimum be protective of health and the environment and conform to ARAR stds.  They must also be protective of GW, drinking water, surface water and air, sensitive and susceptible populations, and ecological resources.
    
8. The cumulative risk of residual contamination at a site may not exceed an excess cancer risk of 1 in a million for carcinogenic end points.
    
9. For all applicants, the remedial program selected must include source removal (including plume stabilization, the removal or permanent treatment of DNAPLs and/or LNAPLs, elimination of all potential human exposure, and prevention of the discharge of contaminated ground water to surface water).
    
10. An RP must perform a remedial investigation of both on-site and off-site groundwater contamination and both the short- and long-term remediation of all GW contamination at and from a BF site, including off-site contamination.  (A non-RP must investigate both on- and offsite GW contamination, but only the short-term remediation of on-site GW contamination at and from a BF site.)
     
11. Short-term remediation of GW contamination must include: source removal; the bulk reduction of contami-nation to the extent feasible; and cooperation with DEC's GW assessment and monitoring activities.
     
12. Long-term GW remediation must include: active GW remedial measures if feasible (a technically sound justifi-cation must be provided for a determination of infeasibility); where infeasible, a re-evaluation and written report must be prepared once every 5 years; cooperation with DEC's assessment and monitoring activities; and off-site plume stabilization to the extent feasible until GW standards are achieved.
     
13. In multi-source contaminated groundwater areas: non-RPs must perform an RI of onsite GW contamination; must do on-site source removal in coordination with a DEC multi-source contaminated GW remedial work plan; and, in lieu of performing source removal, DEC may direct the party to pay an allocated site specific portion of the projected costs of implementing an area-wide remedial work plan developed by DEC.
    RPs: must perform an RI of both on-site and off-site GW contamination; do source removal: do the bulk reduction of contamination to the extent feasible; implement its portion of a DEC multi-source contaminated GW area remedial plan; and pay its site-specific portion of the projected costs of DEC's preparation and implemen-tation of a multi-source contaminated GW area remedial plan.  Must meet the short-term goal of protecting public health and the environment and the long-term goal of restoring fresh GW to drinking water quality.
     
14. Where GW is used as a drinking water source and is contaminated at levels above drinking water stds., DEC must perform, or require an applicant to perform, an emergency response action or an interim remedial measure to provide an alternative water supply or, as an alternative, must ensure that enhanced treatment is installed at such public water supply.
    
    Legislative intent: that fresh GW be restored to and/or maintained in its natural condition, free from any degradation caused by human activities.  Where GW restoration and prevention of degradation is feasible, it should be achieved.  Where it is not currently feasible, the development of methods and technology that will make GW restoration and prevention feasible should be encouraged.

Liability relief

Once applicable cleanup standards are achieved, cleanup volunteers will receive: a liability release/CNTS binding on the state; protection against contribution claims by third parties; and immunity from NRD claims.  The release is transferable to subsequent purchasers and redevelopers—except that it cannot be transferred to a Responsible Party that did not participate in the remediation agreement.  A liability release/CNTS is also available upon DEC’s approval of a final investigation report that demonstrates that no remediation is required, or where source removal results in reducing residual contamination to levels below applicable cleanup standards. 

Criteria are also provided for demonstrating that no remediation is required to meet cleanup standards.

Upon issuance of a certificate of completion, the liability release becomes immediately effective—and resolves the volunteer’s present and future liability to the state and to any other responsible party who make seek contribution or indemnification relating to the existence of contamination disclosed in the final report (or the final investigation report).  Upon issuance of a certificate of completion, DEC shall also provide non-contributory RP volunteers a liability release for any NRD claims.  A liability release shall remain in full force and effect and run with the land—provided that the volunteer or the volunteer’s successors and assigns, and any subsequent owner, developer, lessee, or sublessee continues to implement in good faith the VCP program for the site—including completion of the work described in the remediation work plan, and any OM&M work described in the OM&M work plan.

The liability release shall extend to a person who provides financing for the remediation or redevelopment.  But it shall not extend to a Responsible Party unless that person was party to the application, remediation program, and VCA.

A subsequent owner or operator of a remediated BF site, who is not an RP, shall be exempt from any liability for groundwater contamination that occurred prior to the acquisition of the site (regardless of whether the previous owner remains responsible)—provided that all obligations regarding short term groundwater remediation strategies have been met..

DEC shall take responsibility for the remediation of off-site groundwater contamination from brownfield sites except for off-site contamination for which the volunteer is a contributory responsible party.

Execution of a brownfield site cleanup agreement does not affect the authority of DEC to take any remedial action with respect to the presence of hazardous substances.

Liability reopeners / reservations

1.         Failure to comply with any remaining requirements of the cleanup agreement;

2.         Fraudulent demonstration that cleanup levels were reached;

3.         New release of contaminants after the cleanup agreement was executed; and

4.         Demonstration by DEC that the implemented cleanup standards are no longer protective (i.e., based on evolving scientific understanding of risk potential).

Reopener #4 does not apply to an unrestricted use cleanup under “Category 1” cleanup levels.

1.         Environmental conditions at, on, under or migrating from the BF site that were unknown to DEC at the time of its issuance of the certificate of completion if, in light of such conditions, the remedy selected for the site is not sufficiently protective for the current site use.

2.         Failure to implement the selected remedy in good faith.

3.         Affirmative demonstration by DEC that an environmental standard or other risk factor on which a remedy was based renders the remedy no longer protective.

4.         Fraud by the volunteer in demonstrating attainment [of] the remediation requirements established for the site.

Reopeners ##2 and 3(?) do not apply to a site that has been remediated in accordance with the “unrestricted use Track 1.”  Such liability release will be unaffected by the discovery in the future of previously unknown environmental conditions migrating onto the site from offsite.  If the events described in #3 occur, DEC will be responsible for taking necessary measures to remediate the property to an acceptable condition using monies from the industrial transfer account of the hazardous waste remedial fund.

If a BF site was remediated in accordance with the pre-approved remedial strategy Track 2 and which has been the subject of a No Action Site Determination or a Certificate of Completion, and if a change is proposed which would result in  a different remedy from that initially anticipated, and the new final remedy would result in an increased exposure risk, then the state shall order the person responsible for such change to undertake necessary further investigation or remediation to assure sufficient protection.

2.  Non-compliance with the work plan and the certificate of completion.

3.  Fraud by the applicant in demonstrating that eligibility, work plan, or other requirements had been met.

4.  A change in an environmental standard, factor, or criteria [sic] upon which the work plan or NFA determination was based, which renders the remedial program no longer consistent with remedial program requirements.  [Does not require showing of lack of protectiveness.]

5. Information received (in whole or in part) after issuance of the certificate of completion or the NFA determination which indicates that the activities performed (or to be performed) are not (or will not be) protective.

Reopener #4 does not apply if "track 1-unrestricted use" is achieved.

If the liability release was provided based on site use restrictions, DEC must be notified in an advance of any proposed changes in use (and/or title transfers) and the commissioner may determine that such change is not authorized because it is not consistent with the use restrictions placed on the property.

No action site determination

If DEC, based on a preliminary environmental assessment and final engineering report describing an investigation, determines that a site currently meets established remediation requirements and has no groundwater, surface water, soil or other contamination which requires further investigation or remediation, it shall provide the site owner (within 30 days of a request) a written determination stating that the state will take no enforcement or remediation action against the site owner or its successors and assigns.  (But DEC shall reserve the right to require further investigation or remediation--deemed necessary to support the current or reasonably anticipated site uses--based on an unacceptable risk to public health or the environment attributed to factors that were unknown to DEC at the time of its review.)

Accelerated cleanups

1.         VCAs must be accepted, rejected, or returned within 20 days;

2.          A proposed work plan must be approved, modified, or rejected within 30 days (after the end of the public comment period or a public meeting); and

3.         A final report on a remediation work plan must be approved, modified, or rejected within 60 days.

If DEC fails to comply with the specified timeframes, the volunteer’s responsibility to reimburse DEC for its oversight costs is eliminated.

1.         Within 20 days of receipt of a VCP application, DEC must inform the volunteer in writing if the application is complete or incomplete.

2.         If incomplete applicant must revise within 60 days, and DEC must respond to the revision within 20 days.

3.         DEC and DOH must concurrently review the work plan and either approve it, or based on specific grounds reject it as incomplete, within 60 days of receipt.

4.         If adjudged incomplete, the volunteer will have 30 days to respond and DEC will have 30 days to approve or reject the revision.

5.         DEC has 45 days to review the final work plan report (certified by a licensed professional engineer) and reject or approve it..  (DEC may reject the report if it demonstratives in a written notice specific grounds for rejection.  The volunteer will then have 30 days—or more, if approved by DEC—to address the deficiencies, or complete the work and submit a revised report, or elect to invoke the new dispute resolution procedure

2. The commissioner must use "best efforts" to approve, modify, or reject a proposed remedial work plan within 60 days.

3. Within 3 months of the execution of a cleanup agreement with a non-RP, DEC must bring an enforcement action against any known or suspected RP for the site.  If this is not effective, DEC must begin a remedial program within 1 year of agreement execution.

4. The applicant must prepare a community participation plan for site remediation.  DEC must prepare fact sheets at key stages of the process and mail them to a BF contact list at 5 program milestones and 6 remedial milestones.  Public notice, newspaper notice, and mailings of fact sheets must occur periodically.  Technical assistance grants--of up to $50K for any single recipient at any site, but not to exceed 1% of the cost of developing and implementing a BF site remedial program-- must be provided (by the applicant and/or DEC) to any affected organization or group of individuals.

   DEC must notify affected local governments of its determination with respect to building permit and other applications for land subject to an environmental easement "in a timely fashion, considering the time  frame for the local government's review of the application.

Liability exemptions

1.         The definition of liable “persons” is expanded to include LLCs and joint ventures.

2.         The definition of liable “persons” is narrowed (as, generally, under Federal law) to exclude: lenders, the State of New York, public corporations, fiduciaries, industrial development agencies, not-for-profits, and offsite sources of contamination—as long as they were not involved in the generation or disposal of contaminants and their interest in the land is not long-term ownership.

3.         Adds third-party defense language from federal law, where the threat to health or the environment was caused solely by an act or omission of a contractually unrelated third-party.  No contractual relationship is deemed to be created if the facility is acquired by a government entity through involuntary transfer or acquisition (or through exercise of eminent domain), or by inheritance or bequest.

1.         The definition of liable “person” is expanded to include, inter alia,, estates, joint ventures, LLCs, community-based organizations, and LLPs..

2.         “Person” doesn’t include lenders who hold indicia of ownership primarily to protect a security interest, without participating in site management prior to foreclosure.

3.         Person does not include the state or a public corporation which acquired ownership or control involuntarily without participation in management.

4.         Holder of a security interest includes a fiduciary owning or operating an inactive hazardous waste disposal site (but fiduciary’s liability is limited to the assets held in the fiduciary capacity).

5.         Holder of a security interest includes an industrial development agency created under the GML.

6.         Person doesn’t include any entity who arranged for recycling of recyclable material.

7.         Contractual relationship is not deemed present for: a government entity that acquired the site by involuntary transfer; a person who acquired by inheritance or bequest.

1. The definition of liable “person” is expanded to include, inter alia,,  LLCs, and not-for-profit corporations.
    
2. Secured creditor exemption (includes a person that insures or guarantees against a default in the payment of an extension of credit, or acts as a surety to a nonaffiliated person)..
    
3. Muncipal exemption (if site was acquired "involuntarily" and the site was retained without participating in development of the site).
    
4. Fiduciary liability cap (liability is limited to the assets held in the fiduciary capacity).
    
5. Three affirmative defenses to liability (as under federal law): act of God; act of war; and act or omission of an unrelated third party, if the person exercised "due care" and took precautions against the foreseeable acts or omissions of the third party.  

Institutional and engineering controls

1.         May be approved by DEC as part of a work plan implementing use-based cleanup standards (Category 2 or 3 ).

2.         But work plan must impose the following prerequisites: annual certification (from a qualified engineering or legal professional) that the controls are being properly maintained; reasonable access by DEC and its contractors for verification; DEC must establish and maintain a publicly accessible database of approved institutional and engineering controls; any liability release/CNTS is voidable if the site owner fails at any point to comply with any ongoing requirements of the Cleanup agreement; and the release will also require advance DEC notification of any changes of use or title of the site.

1.         DEC must establish an enforceable permit system authorizing the future use of sites requiring ongoing engineering controls or maintenance or monitoring requirements upon the condition that such controls or requirements are implemented or fulfilled.

2.         DEC must establish an enforceable certification program whereby the owner of a remediated site that has ongoing restrictions or limitations shall be required to certify to DEC annually that such restrictions or limitations have been and continue to be complied with.

2.  Whenever an affected local government receives an application for a building permit or any other application affecting land use or development of land subject to an environmental easement (and that may relate to or impact on such easement), the affected local government "shall" refer such application to DEC.  The affected local government shall not approve the application until it receives approval from DEC.

Change of use or title

1.         Owner or user must give DEC at least 60 days written notice before the start of a physical alteration or construction constituting a “change of use.”  The notification must adequately apprise DEC of the contemplated change and how it may affect the property’s proposed, ongoing, or completed remediation.

2.         If there is a transfer of title before the liability release is issued, DEC must be notified at least 60 days before the transfer of title.

3.         If there is a transfer of title after the liability release is issued, DEC must be notified within 60 days after the transfer of title.

1.         The person or entity proposing to make a physical alteration or construction constituting a change of use at a property investigated or remediated under an environmental restoration project, must provide written notification to DEC at least 60 days in advance.

2.         “Change of use” includes the transfer of title to all or part of the property and any conduct that will or may tend to significantly interfere with an ongoing or completed environ-mental restoration project.  Does not include a transfer where no physical alteration is contemplated, but owners must notify DEC of the transfer within a reasonable time in advance of the transfer.

2.  "Change of use" means any activity which is likely to disrupt or expose hazardous waste or to increase direct human exposure to it, any conduct that may tend to interfere with a brownfield site remedial program, or any activity which is not consistent with site use restrictions placed on the use of a brownfield site.

3. Where there is a transfer of title with no planned physical alterations, DEC must be notified "within 30 days in advance" of the transfer.

4. The owner of a BF site at which institutional or engineering controls are employed must annually submit to DEC a written statement that such controls are unchanged from the previous certification.

DEC access to sites

1.         Under the terms of an applicable VCA, DEC may require any person to permit DEC representatives to enter a brownfield site to observe implementation activities.

2.         If a volunteer withdraws from the VCP—or fails to meet its obligations under a VCA—DEC may gain access for inspecting, taking samples, and/or completing the investigation and/or remediation, IF the site is determined to pose a “significant threat” to public health and the environment.  DEC must provide the site owner at least 10 days’ written notice—which can be shortened to 2 days if DEC makes a written determination that a longer period will not be protective of public health and the environment.

3.         If DEC incurs costs in connection with such work, it should pursue cost recovery against RPs in a contribution action.

The VCA shall include such other provisions necessary for the effective and efficient implementation of this title.

DEC is authorized to require any person to permit a duly designated employee or agent of the department to enter upon any brownfield site for which a person has applied to participate in a brownfield site remedial program, for the following purposes:

-To inspect and take samples, but sampling involving "substantial disturbance" requires a minimum of 10 days written notice (2 days if longer notice will not allow protection of health and the environment).

-To implement the investigation or remediation of hazardous waste or environmental media, but only after 10 days (or 2 days) written notice.

In addition, DEC may request any person to provide access to and to copy all books, papers, documents and records relating to current and past generation, treatment, disposal, storage, and/or transportation activities of such person or any persons currently or formerly under that person's control.

DEC may also require by subpoena the production of such documents and the rendition of testimony by discovery relating to the current or past handling of hazardous wastes or petroleum by the person or those under his/her control.

Dispute resolution or withdrawal

1.         If a cleanup volunteer and DEC are unable to agree on the terms of a voluntary agreement or work plan, or on the implementation of the agreement or plan, after good-faith negotiations, the volunteer may elect in writing to withdraw from the program or invoke a new dispute resolution procedure.

2.         The volunteer may request arbitration or mediation with a DEC ALJ to discuss the grounds for the dispute.  Such a proceeding must be held within 30 days of the volunteer’s request and is subject to public notice and meetings open to the public.  The volunteer must send DEC an advance written statement setting forth the relevant facts and any supporting data, analysis, or opinion.  DEC may send a similar statement of its position no more than 15 days before the date of the proceeding.  At the proceeding, the volunteer and DEC may respond.  The ALJ’s decision is final, unless appealed to the commissioner or his/her designee. (The ALJ’s decision is also subject to judicial review.)  The Commissioner’s decision is due within 15 days of the appeal.

1.         If a second determination of incompleteness of  a work plan is issued by DEC (after the volunteer has submitted a revision in response to an initial determination), the volunteer may withdraw from the program (after providing DEC at least 30 days advance written notice) and each party may exercise available remedies or elect to invoke the new dispute resolution procedure.  (If the volunteer withdraws, the parties retain whatever rights they may have had respecting each other as they had before the effective date of the agreement.)

2.         The VCA shall include a termination provision authorizing DEC to terminate the agreement any time a volunteer fails to materially comply, and authorizing the volunteer to withdraw from the BF program if the parties cannot agree and allowing each party to exercise available remedies or elect to invoke the new dispute resolution procedure.

3.         The volunteer may request arbitration with an ALJ to discuss the grounds for rejection of the second notice of incompleteness.  Such arbitration shall be held no later than 15 days after the volunteer’s request, with public notice and meetings open to the public.  Prior to the arbitration, each side may send to the other a written statement containing the relevant facts, and any data, analysis or opinion supporting each side’s position.  At the arbitration, the volunteer will be given the opportunity to present its responses to DEC’s objections and DEC may reaffirm, modify and/or withdraw its objections (and provide a period of time for the volunteer to revise its report or submission).  The decision of the ALJ shall be subject to judicial review.

The agreement must also contain a provision resolving disputes arising from the evaluation, analysis, and oversight of the implementation of any work plan.

The agreement will authorize DEC to terminate the agreement at any time if the applicant fails to substantially comply with the terms and conditions of the agreement.

Prior to entering into such an agreement, DEC must determine whether the proposed site constitutes a significant threat and should be included in the inactive site registry.  If DEC determines that the site is eligible for inclusion in the registry as a Class 1 or 2 site, DEC shall defer including such site in the registry for as long as the applicant is engaged in good faith negotiations to enter into an agreement and, following its execution, is in compliance with the terms of the agreement.  If the applicant subsequently withdraws from an agreement, DEC "shall include" such site in the registry.  [This will be a major deterrent to participation in the brownfields program.]

Changes to environmental restoration (municipal brownfields) program

1.         State share increased from 75% to 90%.  It is 100% for any remediation required by DEC outside the property boundary and for public participation plan.  Provides for monthly reimbursements of local costs.

2.         Moneys recouped from RPs need to be refunded to the state only if they exceed the municipality’s 10% share.

3.         If the proceeds from selling the restored property exceed the state’s outlay, and excess is divided equally between the state and the locality.

4.         Approved project costs need not be reduced by any other federal or state funds received for the project.

5.         Eligible sites expanded to include not only those owned by localities, but also those for which fee title may be acquired.  Also includes petroleum and hazardous substance sites.

6.         Allows the property being restored to continue to be used for its previous purpose as long as the risk posed doesn’t make such use prohibitive, and as long as it doesn’t interfere with environmental restoration.

7.         If the municipality sells a restored site to an RP, the RP must cover the amount of the state assistance plus accrued interest and transaction costs.

8.         Sites in an Empire Zone are given top priority regarding review timeframes and other procedural requirements.

9.         After the completion of restoration, all of the following are exempted from liability to the state or a third party: the municipality, a successor in title, any lessee, and any lender—provided they did not cause or contribute to the contamination.  (Subject to 4 reopeners.)

10.      Municipalities that caused or contributed to the contamination may not receive environmental restoration funding.

1.         State share increased from 75% to 90%.  It is 100% for any remediation directed by DEC to be undertaken outside the property boundaries.

2.         Moneys recouped from RPs need to be refunded to the state only if they exceed the municipality’s 10% share.

3.         If the proceeds from selling the restored property exceed the state’s outlay, and excess is divided equally between the state and the locality.

4.         Criteria for award of environmental restoration funds expanded to include property in state empire zones, federal empowerment zones or brownfields redevelopment areas.

5.         Requirement that the remediation objective of an environmental restoration project must meet the same standard for protectiveness that applies to State Superfund sites is modified to (a) apply only to remediation projects, and (b) to also allow compliance with pre-approved remedies under Title 13.

6.         Allows the property being restored to continue to be used for its previous purpose as long as the risk posed doesn’t make such use prohibitive, and as long as it doesn’t interfere with environmental restoration.

7.         If the municipality sells a restored site to an RP, the RP must cover the amount of the state assistance plus accrued interest and transaction costs.

8.         Municipalities that caused or contributed to the contamination may not receive environmental restoration funding.

1.      State share increased from 75% to 90%. 

2.      Limited to property "held in title" by a municipality or (new) or subject to a "priority brownfield site cleanup project by a community based organization."

3.     $75M of the $200M fund shall be available for priority BF cleanup projects.

4. "Municipality" is expanded to include a community based organization.

5. A priority BF cleanup project is not subject to repayment requirements.

6. A priority BF cleanup project shall receive 100% of eligible costs of remediating off-site GW contamination related to the project.

7. The amount of state assistance payment for a priority BF cleanup project will be 90% of the eligible costs.

8. Criteria for eligibility for state assistance are expanded to include environmental justice factors, and community approval (and consistency with local zoning and any BF redevelopment plan under the urban development corporation act). 

9. The remediation objective is expanded to include as an alternative: BF site remedial programs under track 1--unrestricted use.

10. DEC must make every effort to expedite its review of an environmental restoration project and "shall" finalize its review of the proposed remedial action workplan for an approved project within 90 days of its submission.

When a foreclosure is commenced on a tax lien, the taxing district (or any other taxing district having an interest in the property) may move (on 20 days notice to all parties) at a special term in the court in which the foreclosure proceeding was brought for an order granting such district the temporary incidents of ownership for the sole purpose of entering the parcel and conducting an environmental investigation.  Unless the property is redeemed, the court shall grant such order, which will operate as a stay on the foreclosure action until the investigation is completed.  (The incidents of ownership will be sufficient to allow the taxing district to qualify for funding under the environmental restoration program or from any other source.)  Based upon the results of the investigation, the taxing district is free to withdraw the parcel from foreclosure.  All costs associated with such an investigation shall be added to the taxes owed to the taxing district that undertook the investigation.  [This will add to the cost of the parcel and make it less likely that it will be acquired by a private purchaser or developer.]

Economic development incentives

1.         Brownfield site redevelopment exemption (real property tax exemption by municipalities).  Also authority to cancel or reduce delinquent back taxes.

2.         Urban Development Corporation “brownfield site assessment, acquisition, and remediation assistance program.”

3.         Investment Tax Credit (would be doubled for brownfield sites in Empire Zones).

4.         Sales tax exemption.

5.         Land Re-Use Opportunity Area Incentives.

1.         Commissioner of Economic Development to provide Brownfield redevelopment application assistance to municipal governments (or municipal governments and community based organizations acting in cooperation) for the designation of a brownfield redevelopment area. 

2.         Municipal site remediation revolving funds.

3.         Brownfield site redevelopment exemption.

4.         Brownfield redevelopment tax credit.

5.         Tax credits for remediated brownfields.

6.         Remediated brownfield credit for qualified high technology training expenses /Brownfield recovery high-technology training

3. Brownfield pre-planning assistance grants.

4. Designation of land re-use opportunity areas.  DEC must prioritize and provide funding to proposals for areas have 6 enumerated characteristics.

5. Municipal government and community based organization brownfield site acquisition grants.

6. Browfield site investigation, remediation and redevelopment project grants.

7. Under the public authorities law, eligible projects include acquisition, remediation and redevelopment of a BF site (but not for projects primarily used for retail sales).

8. Under the private housing finance law, preference is to be given to economically feasible projects located on a BF site that has received a certificate of completion.

9. Under the public housing law, the commissioner shall  give preference (where legally authorized) to feasible projects located on a BF site that has received a certificate of completion.

10. Adds a new section to the General Municipal Law providing tax benefits for brownfield business enterprises (where BF sites that have received a certificate of completion are located with a state empire zone).  The environmental facilities corporation is to designate up to 1,000 such applicants.

Additional tax preferences are specified.

Organizational changes

Establishes within DEC a new Office of Smart Development and Brownfields Revitalization.  The head of this office is the Coordinator, who will be appointed by the Governor with the advice and consent of the Senate.  The Coordinator will serve as the ombudsman for the state and interested parties on all of the brownfield programs of the state and available economic development incentives for brownfield sites.

12 duties are enumerated for the new office, including: proposing measures that must be taken to ensure that the incentives which are available to assist the state's various brownfields programs are, to the maximum extent permitted by law, directed for that purpose; assisting applicants under state BF programs in obtaining timely and efficient responses from state agencies; and reviewing application procedures formulated by state agencies and recommending improvements to increase efficiency and enhance the probability of success.

Establishes a 14-member State Brownfields Advisory Board within DEC.  Among its functions is to monitor and review the implementation of the brownfields program and the policies, program objectives, methods, and strategies outlined in the program.  It shall also request and receive from DEC periodic work products from the Technical Advisory Panel.  The Board is to generate an annual report to the Governor and Legislature on implementation of the BF program.

Establishes a 7-member State brownfield redevelopment council (including the Commissioners of Economic Development and DEC, the Governor, the majority leader of the Senate, and the Speaker of the Assembly (or their designees) to advise and make recommendations to the commissioners regarding BF redevelopment goals and priorities to ensure a balance of statewide and regional interests.

Comments of the NYS Business Council (Ken Pokalsky)

1.         Suggests dropping Title 13 and Navigation Law changes and focusing on the Voluntary Cleanup Program.

2.         Agrees that VCP participants should be able to avoid Inactive Hazardous Waste Site listing (under Title 13), but this can be done without changing Title 13.

3.         The offer of a 6-month window to move from Title 13 to the VCP program is fine, but if the window is not taken advantage of, the threat that DEC will send out an enforcement order on the 181^st day is not very credible.

4.         The offsite source provision incorporated from federal law protects downstream property owners from liability for groundwater contamination originating offsite only if the site owner takes “reasonable steps” to prevent threatened future releases, limit exposures, etc.  These terms are pretty broad and vague—and, therefore, difficult to satisfy.

5.         The Business Council strongly opposes a cleanup goal of restoration to predisposal conditions when feasible and authorized by law.

6.         What is the benefit of incorporating the Part 375 balancing factors in this statute?

7.         If the Part 375 alternative selection criteria are retained, the “land use” factor added by the Governor’s proposal should be retained.

8.         Disagrees with the residential presumption standard for the upper 6-inches of soil.

9.         DEC should be able to recover only all “reasonable” costs of oversight—not all costs.

10.      State law can’t tell the federal courts what factors to consider in CERCLA contribution claims.  This issue should be left to CERCLA.

11.      In the re-opener provisions, the trigger for requiring additional remediation should be the existence of a “significant threat”—not “no longer protective.

12.      The definition of a “Responsible Party” owner should exclude an owner that is exempted from liability under new Title 13 language.

13.      Eligibility criteria would disqualify Class 2 sites from the VCP after the expiration of the 6-month window of opportunity—even when the agreement is entered into by a true volunteer.

14.      Regarding annual certifications for IC/ECs, provisions are needed to allow for state-approved changes and the participant’s ability to respond to and rectify “upset” conditions.

15.      In the definition of “source removal,” is the comparison between TOTAL consumption of resources over time versus TOTAL removal of the source over time—or MARGINAL resource consumption versus MARGINAL source removal.

16.      Under what circumstances would further remediation be deemed “unjustified” after source removal was accomplished?  Why not achievement of use-based cleanup standards?

17.      Language is needed to allow DEC to issue a liability release/CNTS where the remediation agreement requires long-term groundwater cleanup or monitoring—so the release can be issued prior to completion of the remedy.

18.      The “Type B” volunteer should not be held liable for the “change of standard” re-opener.

19.      If the state is immune from liability, why does the VCP participant have to indemnify the state?

20.      DEC authority to access sites in order to remediate hazardous wastes should be limited to instances where such action is authorized under Title 13.

21.      It is inappropriate to give sites in Empire Zones and LROAs priority treatment.  The location of the project has little bearing on its relative merit.

22.      Municipalities should reimburse the state for some of its site cleanup expenditures—especially if the value of the property increases significantly.   This is especially true since the state will seek to recover costs from “persons responsible” which could include innocent landowners and “responsible parties” at non-significant threat sites.

23.      The Business Council strongly opposes surcharges on certain industrial facilities.

24.      Why not leave the Navigation Law alone?  This program works pretty well as it is.

25.      If the volunteer can meet the applicable cleanup levels, why subject the remedy selection to an extensive further assessment process?

26.      Why do all properties within LROAs get additional economic development benefits, even if specific parcels are not brownfields?

27.      The Business Council strongly disagrees with the proposal that LROA sites receive “priority” in all state assistance programs.

28.      Do we really need 10 new categorical grants programs for brownfield sites?

The Business Council opposes this bill because it:

1.         Imposes significant new business fees (($18 million in new hazardous waste program fees that will largely impact the state’s manufacturing sector).  This is not a “polluter pays” approach because there is no relationship between most of the businesses that will be paying these fees and most of the sites on which DEC will spend these funds.

2.         Expands the scope of the Superfund program (i.e., to include hazardous substance sites) with no countervailing reforms to make the program more fair or more efficient (e.g., use-based cleanup standards)..

3.         Imposes an excessively stringent cleanup requirement on brownfield cleanups.  (a) The bill fails to authorize adoption of cleanup standards based on the intended use of brownfield sites.  Instead, the bill directs DEC to adopt presumptive remedies based on the past use of contaminated sites (e.g., gas stations, dry cleaners, chemical storage facilities, etc.).  Furthermore, the bill states that such cleanup standards need to be between 10 and 30 times more stringent than required under federal CERCLA—or even more stringent if “additional protection” is considered “feasible.”  (b) While the bill authorizes post-remediation liability releases for brownfield program participants, it also authorizes DEC to revoke that protection—and the participant’s eligibility for tax incentives—based on environmental factors beyond the control of the volunteer (e.g., DEC modifying an environmental standard on which the cleanup is based).  Under this bill, DEC reserves the right to require a cleanup volunteer—or a successor—to do additional investigation and cleanups in order to address previously unknown or undiscovered environmental conditions.

4.         Imposes a new, but largely undefined, permitting program on businesses that have already signed consent orders with the state to cleanup sites for which they are responsible, and where ongoing institutional or engineering controls are part of the site remedy.  Since DEC oversight and enforcement of these future obligations are already addressed through consent orders and DEC’s existing enforcement authority, this new permitting program is an unnecessary additional mandate.

5.         The Business Council has a number of other concerns regarding the liability , remedy selection, oversight costs and other provisions of this bill.

On the positive side, S. 2935:

Focuses on the creation of a statutory brownfield program, and includes few changes to the state Superfund program and avoids significant changes to the state’s oil spill program.