PART 375 HAZARDOUS WASTE REGULATIONS

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Subpart 375-1 General Provisions
Subpart 375-2 Responsible Party Funding
Subpart 375-3 State Funding
Subpart 375-4 Environmental Restoration Projects

Sec.
375-1.1  Purpose, scope, authority, severability, references.
375-1.2  Prohibitions
375-1.3  Definitions
375-1.4  Significant threat to the environment
375-1.5  Public participation
375-1.6  New use of sites
375-1.7  Permitting remedial activities
375-1.8  Site classification
375-1.9  Registry petitions
375-1.10 Remedy selection
375-1.11 Interim remedial measures

§375-1.1 Purpose, scope, authority, severability, and references.

(a) The purpose of this Part is to promote the orderly and efficient administration of ECL Article 27, Title 13 and Article 52, Title 3 and State Finance Law section 97-b.

(b) This Part applies to the development and implementation of programs under authority of, inter alia, ECL Article 27, Title 13. Subpart 375-3 applies specifically to the expenditure of State moneys:

(1) to pay, in whole or in part, for the development and implementation of programs under authority of ECL Article 27, Title 13;

(2) to pay for

(i) cleanup or restoration to its original state any area where hazardous waste was disposed of or possessed unlawfully contrary to ECL 27-0914,

(ii) inactive hazardous waste disposal site identification, classification, and investigation activities, including without limitation testing, analyses, record searches, and other activities to develop and regularly update the plan required by ECL 27-1305.5 and .6, and

(iii) emergency response actions to clean up spills of hazardous waste or to abate other public health or environmental hazards caused by hazardous waste, except to the extent provided for under section 186 of the Navigation Law; and

(3) to provide financial assistance to municipalities to pay, in part, for the development and implementation of programs under authority of ECL Article 52, Title 3.

(c) Where this Part is applicable, it supersedes any inconsistent provision of this Title. Subparts 375-2 and 375-3 of this Part shall be construed consistently with each other.

(d) As used in this Part, the singular includes the plural.

(e) If any provision of this Part, or its application to any particular person or circumstances, is held invalid, the remainder of this Part, and the application thereof to other persons or circumstances, shall not be affected thereby.

(f) The following documents have been incorporated by reference and filed with the Department of State. The documents are available from the Superintendent of Documents, U.S. Government Printing Office, Washington, D.C. 20402 and for inspection and copying at Room 207 of the Department's offices at 50 Wolf Road, Albany, New York 12233:

(l) Code of Federal Regulations: 40 CFR Part 300 as of March 8, 1990 (National Oil and Hazardous Substances Pollution Contingency Plan)

(2) Federal Register: 55 F. Reg. 8665 to 8813 (Response to Comments on the National Oil and Hazardous Substances Pollution Contingency Plan of March 8, 1990)

§375-1.2 Prohibitions.

(a) No person to whom a request has been made pursuant to ECL 27-1307.1 shall fail to comply therewith.

(b) No person to whom a request has been made pursuant to ECL 27-1309.1 shall fail to comply therewith.

(c) No person shall obstruct or attempt to obstruct any duly designated officer or employee of the Department or of any other state agency, or any agent, consultant, contractor or other person so authorized in writing by the Commissioner, acting pursuant to ECL 27-1305, 27-1309, or 27-1313, or any combination of same.

(d) No person to whom an order has been issued pursuant to ECL 27-1313.3 shall fail to comply therewith.

(e) Except in the event of an emergency, in which event any action taken shall be expeditiously reported to the Department in writing not later than fifteen days thereafter,

(1) no person shall undertake at a site listed in the Registry as a class "1" or "2" any physical alteration that constitutes storage, treatment, or disposal of the hazardous waste the presence of which served as the basis for such listing, unless

(i) such conduct is exempted under subdivision 373-1.1(d) of this Title; or

(ii) such conduct is done with the express written approval of the Department granted either by a consent order or in such other manner as the Commissioner shall direct.

(2)

(i) no person shall engage in any activity:

(a) that will, or that reasonably is anticipated to, prevent or interfere significantly with any proposed, ongoing, or completed program at any site listed in the Registry; or

(b) that will, or is reasonably foreseeable to, expose the public health or the environment to a significantly increased threat of harm or damage at any site listed in the Registry.

(ii) The proponent of the activity may demonstrate to the Department that such activity will not have such effect by such demonstration as the Department may find acceptable.

(f) No person shall make a substantial change of use at a site listed in the Registry without having given 60 days advance notice thereof as described in section 375-1.6 of this Part.

(g) No person shall make a substantial change of use at a site for which a declaration has been issued by the Commissioner of Health pursuant to subdivision 2 of section 1389-b of the Public Health Law without having given 60 days advance notice thereof as described in section 375-1.6 of this Part; and received the Commissioner's written approval thereof.

§375-1.3 Definitions.
The following terms have the following meanings when used in this Part:

(a) "ALJ" means the hearing officer duly designated by the Commissioner as the Commissioner's representative for the purpose of conducting the session described in subdivision 375-2.1(b) of this Part and making a report upon the record.

(b) "Commissioner" means the State Commissioner of Environmental Conservation or such individual's designee.

(c) "Cost" means moneys expended or to be expended by the Department, the Department of Health, or any other State agency associated with the development, implementation, and completion of a program for a site, and associated with the investigation of that site.

(d) "Department" means the State Department of Environmental Conservation.

(e) "Disposal" means the abandonment, discharge, deposit, injection, dumping, spilling, leaking, or placing of any substance so that such substance or any related constituent thereof may enter the environment. Disposal also means the thermal destruction of waste or hazardous waste and the burning of such wastes as fuel for the purpose of recovering usable energy.

(f) "Emergency" means a spill, or other event or condition, whether natural or human-made, as the result of which a release or threat of release of hazardous waste presents an immediate threat to life, health, property, or natural resources.

(g) "Environment" means any water including surface or subsurface, water vapor, any land including land surface or subsurface, air, fish, wildlife, biota including humans, and all other natural resources.

(h) "Environmental damage" means any impairment of use by flora or fauna of, or any injury to, the environment; and any adverse health impact.

(i) "Expenses" means all those costs, obligations, commitments, contracts, or undertakings allocated to the administration, enforcement, or oversight responsibilities of the Department, the Department of Health, or any other State agency attributable to a particular site, including but not limited to, administrative expenses such as staff wages and salaries, fringe benefits, overhead, supplies and materials, equipment, travel, and utilities; expenses associated with contractor procurement and payment; and any other reasonable expenditures.

(j) "Feasibility study" means a study undertaken to develop and evaluate options for remedial action. The feasibility study emphasizes data analysis and is generally performed concurrently and in an interactive fashion with the remedial investigation, using data gathered during the remedial investigation. The remedial investigation data are used to define the objectives of the program, to develop remedial action alternatives, and to undertake an initial screening and detailed analysis of the alternatives. The term also refers to a report that describes the results of the study.

(k) "Hazardous waste" means a hazardous waste as defined in Part 371 of this Title.

(l) "Inactive hazardous waste disposal site" or "site" means any area or structure used for the long-term storage or final placement of hazardous waste including, but not limited to, dumps, landfills, lagoons, and artificial treatment ponds, as to which area or structure no permit or authorization issued by the Department or a federal agency for the disposal of hazardous waste was in effect after August 25, 1979.

(m) "Inactive hazardous waste disposal site remedial program", or "program" means all activities undertaken to eliminate, remove, abate, control, or monitor existing health hazards, existing environmental hazards, potential health hazards, and/or potential environmental hazards in connection with a site, and all activities undertaken to manage wastes and contaminated materials from a site, including but not limited to, the following:

(1) activities (such as investigative activities needed to evaluate remedial alternatives) to develop such a program;

(2) design activities;

(3) construction activities including without limitation grading, contouring, trenching, grouting, capping, excavation, transporting, incineration and other thermal treatment, chemical treatment, biological treatment, or construction of groundwater and/or leachate collection and treatment facilities;

(4) post-construction operation, maintenance, and monitoring;

(5) restoration of the environment;

(6) appropriate involvement by local governments of jurisdiction and by the general public;

(7) oversight by the Department.

(n) "Interim remedial measure" or "IRM" means a discrete set of activities to address both emergency and nonemergency site conditions, which can be undertaken without extensive investigation and evaluation, to prevent, mitigate, or remedy environmental damage or the consequences of environmental damage attributable to a site, including but not limited to the following activities: removals of wastes and contaminated materials including environmental media; construction of diversion ditches, collection systems, or leachate collection systems; construction of fences or other barriers; installation of water filters or provision otherwise of alternative water supplies.

(o) "Municipality" means a city, county, town, village, public benefit corporation, or school district or an improvement district within a city, county, town, or village, or Indian tribe residing within the State, or any combination thereof.

(p) "Original state" of an area means:

(1) if the condition of the area immediately before the unlawful disposal or possession can practicably be ascertained, it means such condition; or

(2) if the condition of the area immediately before the unlawful disposal or possession cannot practicably be ascertained, it means a reasonably environmentally sound condition.

(q) "Person" means an individual, trust, firm, joint stock company, corporation, partnership, association, state, municipality, commission, political subdivision of a state, public benefit corporation, or interstate body.

(r) "Registry" means the Registry of Inactive Hazardous Waste Disposal Sites as identified in ECL 27-1305.

(s) "Release" means any pumping, pouring, emitting, emptying, or leaching, directly or indirectly, of a substance so that the substance or any related constituent thereof, or any degradation product of such a substance or of a related constituent thereof, may enter the environment, or the disposal of any substance.

(t) "Remedial investigation" means a process undertaken to determine the nature and extent of contamination. The remedial investigation emphasizes data collection and site characterization, and generally is performed concurrently with the feasibility study. It includes sampling and monitoring, as necessary, and includes the gathering of sufficient information to determine the necessity for, and the proposed extent of, the program and to support the evaluation of proposed alternatives.

(u) "Responsible party" means any or all of the following:

(1) the current owner and the current operator of the site or any portion thereof;

(2) the owner, and the operator, of the site or any portion thereof at the time any hazardous waste disposal occurred;

(3) any person who generated any hazardous waste that was disposed of at the site;

(4) any person who transported any hazardous waste to the site, provided that such site was selected by that person;

(5) any person who disposed of any hazardous waste at the site;

(6) any person who, by contract, agreement, or otherwise arranged for the transportation of any hazardous waste to the site or the disposal of any hazardous waste at the site;

(7) any other person determined to be responsible according to applicable principles of statutory or common law liability.

(v) "Substantial change of use" means the erection of any structure on a site, the paving of a site for use as a roadway or parking lot, the creation of a park or other recreational facility on a site; or any activity that is likely to disrupt or expose hazardous waste or to increase direct human exposure; or any other conduct that will or may tend to prevent or significantly interfere with a proposed, ongoing, or completed program.

(w) "Waste" means any garbage, refuse, sludge from a waste water treatment plant, water supply treatment plant, or air pollution control facility, and other discarded material, whether or not such material may eventually be used for some other purpose, including solid, liquid, semi-solid, or contained gaseous material resulting from industrial, commercial, mining, and agricultural operations or from community activities, and source, special nuclear or by-product material as defined in the Atomic Energy Act of 1954, as amended, except as may be provided by existing agreements between the State of New York and the government of the United States, but does not include solid or dissolved material in domestic sewage, or solid or dissolved materials in irrigation return flows or industrial discharges which are point sources subject to permits under ECL Article 17.

§375-1.4 Significant threat to the environment.

(a)

(1) The Commissioner may find that hazardous waste disposed at a site constitutes a significant threat to the environment if, after reviewing the available evidence and considering the factors the Commissioner deems relevant set forth in subdivision 375-1.4(b) of this Part, the Commissioner determines that the hazardous waste disposed at the site or coming from the site results in, or is reasonably foreseeable to result in, any of the following:

(i) a significant adverse impact upon endangered species, threatened species, or species of concern, as defined in section 182.2 of this Title; or

(ii) a significant adverse impact upon protected streams as defined in section 608.1 of this Title, or tidal wetlands as defined in subdivision 661.4(ff) of this Title, or freshwater wetlands as defined in subdivision 663.2(p) of this Title or significant fish and wildlife habitat areas as defined in subdivision 602.5(a) of Title 19 of the Official Compilation of Codes, Rules and Regulations of the State of New York; or

(iii) a bioaccumulation of contaminants in flora or fauna to a level that causes, or that materially contributes to, significant adverse ecotoxicological effects in flora or fauna or leads, or materially contributes, to the need to recommend that human consumption be limited; or

(iv) contaminant levels that cause significant adverse acute or chronic effects to fish, shellfish, crustacea, and wildlife; or

(v) a significant adverse impact to the environment due to a fire, spill, explosion, or similar incident or a reaction that generates toxic gases, vapors, fumes, mists, or dusts; or

(vi) where the site is near private residences, recreational facilities, public buildings or property, school facilities, places of work or worship, or other areas where individuals or water supplies may be present, the New York State Department of Health or the Agency for Toxic Substances and Disease Registry has determined that the presence of hazardous waste on a site poses a significantly increased risk to the public health.

(2) The Commissioner also may find that hazardous waste disposed at a site constitutes a significant threat to the environment if, after reviewing the available evidence and considering the factors the Commissioner deems relevant set forth in subdivision 375-1.4(b) of this Part, the Commissioner determines that the hazardous waste disposed at the site or coming from the site results in, or is reasonably foreseeable to result in, significant environmental damage.

(b) In making a finding under subdivision 375-1.4(a) of this Part as to whether a significant threat to the environment exists, the Commissioner may take into account any or all of the following matters, as may be appropriate under the circumstances of the particular situation:

(1) the duration, areal extent, or magnitude of severity of the environmental damage that may result from a release of hazardous waste;

(2) type, mobility, toxicity, quantity, bioaccumulation, and persistence of hazardous waste present at the site;

(3) manner of disposal of the hazardous waste;

(4) nature of soils and bedrock at and near the site;

(5) groundwater hydrology at and near the site;

(6) location, nature, and size of surface waters at and near the site;

(7) levels of contaminants in groundwater, surface water, air, and soils at and near the site and areas known to be directly affected or contaminated by waste from the site, including, but not limited to, contravention of: ambient surface water standards set forth in Part 701 or 702 of this Title; ambient groundwater standards set forth in Part 703 of this Title; drinking water standards set forth in Subpart 5-1 and Part 170 of Title 10 of the Official Compilation of Codes, Rules and Regulations of the State of New York;

(8) proximity of the site to private residences, recreational facilities, public buildings or property, school facilities, places of work or worship, and other areas where individuals may be present;

(9) the extent to which hazardous waste and/or hazardous waste constituents have migrated or are reasonably anticipated to migrate from the site;

(10) the proximity of the site to areas of critical environmental concern (as, wetlands or aquifers);

(11) the potential for wildlife or aquatic life exposure that could cause an increase in morbidity or mortality of same;

(12) the integrity of the mechanism, if any, that may be containing the hazardous waste to assess the probability of a release of the hazardous waste into the environment; and

(13) the climatic and weather conditions at and in the vicinity of the site.

(c) The mere presence of hazardous waste at a site or in the environment is not a sufficient basis for a finding that hazardous waste disposed at a site constitutes a significant threat to the environment.

(d) In making a finding under ECL 27-1313.3.b(ii) that a significant threat to the environment presents an imminent danger of causing irreversible or irreparable environmental damage, the Commissioner must first find that:

(1) the hazardous waste disposed at the site constitutes a significant threat to the environment;

(2) there is insufficient time within which to start and complete all administrative procedures to establish an identified responsible party's liability to devise and implement a program for the site, and to start and complete all measures necessary to contain, alleviate, or end the threat to life or health or to the environment sought to be averted, including (if the Department, in its discretion, believes it to be cost-effective) the development and implementation of a program; and

(3) the nature of the significant environmental damage reasonably foreseeable to occur if no action were to be taken to avert a release or further release of hazardous waste into the environment is such, with respect to the component of the environment reasonably foreseeable to be adversely affected, either as to be of long duration; or that the component of the environment reasonably foreseeable to be affected cannot be fully restored to pre-release conditions.

(e) In making a finding under ECL 27-1313.3.b(ii) that a significant threat to the environment is causing irreversible or irreparable environmental damage, the Commissioner must first find that:

(1) significant environmental damage has occurred; and

(2) the nature of that environmental damage is such, with respect to the component of the environment adversely affected, either as to be of long duration; or that the component of the environment affected cannot be fully restored to pre-release conditions.

(f) In making a finding ECL 27-1313.3.b(iii) that the significant threat to the environment posed by hazardous waste disposed at a site makes it prejudicial to the public interest to delay action until a proceeding can be held pursuant to ECL Article 27, Title 13, the Commissioner must determine either that further environmental damage reasonably is anticipated to result during such a hearing; or that, if environmental damage has not yet occurred, such reasonably is anticipated to occur during the pendency of the proceeding.

§375-1.5 Public participation.

(a) To facilitate the remedial process and enable citizens to participate more fully in decisions that affect their health, the Department will require the provision of opportunities for citizen involvement and will encourage consultation with the public early in that process before the Department forms or adopts final positions. The primary goals of the citizen participation program at sites are to facilitate two-way communication between the Department and individuals, groups, and organizations that have expressed interest in or are affected by the site or the site's program, in the decision making process associated with the remediation of sites. The Department will require that opportunities for public involvement be included in the development and implementation of a remedy.

(b) Before the start of the remedial investigation/feasibility study for a particular site, the Department will require the development of a citizen participation program that will include, at a minimum,

(1) a plan that details the citizen participation activities that will be implemented for the particular site. The plan will be subject to Departmental review and approval;

(2) a list of government representatives, civic organizations, environmental groups, residents, media representatives, business interests, and other individuals and groups that have expressed an interest in, or are affected by, the site or the site's program;

(3) site-specific document repositories in the regional office of the Department region in which the site is located and in a publicly accessible building located near the site; and

(4) a mailing to those on the list described in paragraph 375-1.5(b) (2) of this Part of an announcement of availability of the final draft remedial investigation/feasibility study workplan and a notice and brief analysis of the proposed investigation.

(c) The Department will communicate with and solicit the views of all interested parties. To accomplish this, at the appropriate time, the Department will, at a minimum:

(1) mail to those on the list described in paragraph 375-1.5(b)(2) of this Part a notice and brief analysis of the remedy that the Department proposes to be undertaken at the site, which includes sufficient information to provide a reasonable explanation of that proposed remedy, including but not limited to, a summary of the Department's reasons for selecting it over other alternatives it considered and of the construction and operational requirements of that proposed remedy;

(2) provide a 30-day period for submission of written comments and an opportunity for submission of oral comments at a public meeting at or near the site. The Department shall summarize the comments received at the public meeting and make the summary available to the public; and

(3) mail to those on the list described in paragraph 375-1.5(b)(2) of this Part and make available to the public a notice and brief analysis of the remedy selected for implementation that includes a discussion of any significant changes from the proposed remedy as made available under paragraph 375-1.5(c)(1) of this Part, and a response to each of the significant comments, criticisms, and new data submitted to the Department.

(d) All items developed under this section, including comments received from the public and a summary of the public meeting, will be made available for public inspection and copying in the repositories described in paragraph 375-1.5(b)(3) of this Part.

(e) This section applies to all programs, whether to be implemented by the Department or by a person acting under order issued under authority of ECL Article 27, Title 13, whether after hearing or on consent.

(f) An IRM, whether implemented by the Department or by a person acting under order pursuant to section 375-2.1 of this Part either after hearing or on consent, is exempt from the comprehensive public participation requirements of subdivisions 375-1.5(b) and 375-1.5(c) of this Part. However, the Department or such person implementing the IRM or making the request will conduct such public participation activities as the Department deems necessary and appropriate under the circumstances.

§375-1.6 New use of sites.

(a) At least 60 days before the start of physical alteration or construction constituting a substantial change of use of a site listed in the Registry, or at least 60 days before a substantial change of use of a site listed in the Registry not involving any physical alteration or construction, as the case may be, the person proposing to make a substantial change of use shall give notice thereof.

(b) Such notice must be given in writing addressed to the Commissioner at 50 Wolf Road, Albany, New York 12233 and to the clerks of the county; the town or city (as the case may be); and (where located in one) the village, within which the site is located and must include an identification of the site by means of its Registry number, an identification of the person giving notice, a brief description of the proposed substantial change of use, and such other information as the Commissioner shall deem necessary. Notice shall be provided by the person proposing to make a substantial change of use to the site's contact list identified in paragraph 375-1.5(b)(2) of this Part (if any) and adjacent property owners.

(Note: This section provides for compliance with ECL 27-1317 only. Nothing in this section relieves any person of the duty to comply also with Public Health Law Section 1389-d, which addresses the obligation to notify the Department of Health of new uses of sites. Nothing in this section relieves any person from any requirement to obtain a permit or other authorization from State, federal, or local governments in order to engage in the new use of site.)

§375-1.7 Permitting remedial activities.

(a) Except as provided in section 375-1.11 of this Part and unless a permit is applied for and issued, when a responsible party for a site develops and implements a program or an IRM in compliance with an order to which section 375-2.1 of this Part is applicable, the Department may exempt a person from the requirement to obtain any permit issuable by the Department for an activity satisfying the criteria set out in subdivision 375-1.7(b) of this Part. When the Department develops and implements a program under authority of ECL 27-1313.5, no permit issuable by the Department shall be required for activities satisfying all the criteria set out in subdivision 375-1.7(b) of this Part.

(b) The following criteria must be met:

(1) The activity is onsite. For purposes hereof, an activity is onsite:

(i) if it is conducted on the same premises as the site, or

(ii) if it is conducted on different premises that are under common control or are contiguous to or physically connected with the site and the activity manages exclusively waste for which the responsible party is liable; and

(2) The activity satisfies all substantive technical requirements applicable to like activity conducted pursuant to a permit as determined by the Department; and

(3) The activity is a component of a program selected by a process complying with the public participation requirements of section 375-1.5 of this Part, to the extent applicable.

(c) When a responsible party for a site develops and implements a program in compliance with an order to which section 375-2.1 of this Part is applicable, and when the Department develops and implements a program under authority of ECL 27-1313.5, no permit, consent, approval or other authorization under any local government zoning, land-use, or other regulatory program shall be required.

§375-1.8 Site classification.

(a)

(l) The Registry maintained by the Department according to statute must include all sites known to the Department at which a consequential amount of hazardous waste has been confirmed to have been disposed. For purposes of this section, an inconsequential amount of hazardous waste is an amount of hazardous waste disposed at a site that does not presently constitute a significant threat to the environment, as described in section 375-1.4 of this Part, and is not reasonably foreseeable to ever constitute a significant threat to the environment, as described in section 375-1.4 of this Part.

(2) In so maintaining the Registry, to the extent possible with available information, the Department will classify sites according to the following criteria:

(i) A class "1" site is a site at which:

(a) hazardous waste constitutes a significant threat to the environment, as described in section 375-1.4 of this Part; and

(b) the significant threat to the environment is causing, or presents an imminent danger of causing, either irreversible or irreparable damage to the environment.

(ii) A class "2" site is a site at which hazardous waste constitutes a significant threat to the environment, as described in section 375-1.4 of this Part.

(iii) A class "3" site is a site at which hazardous waste does not presently constitute a significant threat to the environment, as described in section 375-1.4 of this Part.

(iv) A class "4" site is a site that has been properly closed but that requires continued operation, maintenance, and/or monitoring.

(v) A class "5" site is a site that has been properly closed and that does not require continued operation, maintenance, and/or monitoring.

(3) The Department will investigate pursuant to the ECL such areas or structures which it has reason to believe may need to be included in the Registry and may establish an administrative category for such areas or structures.

(b) The Registry is informational in nature, and a site is not required to be on the Registry to confer jurisdiction for action by the Department according to statute.

(c) The Department must review the classification of each site on the Registry annually not later than March 31 of each year, and the Department may review the classification of any site on the Registry at any time. Sites on the Registry may be deleted or reclassified at any time, and sites not on the Registry may be added to it at any time.

(d) When final decisions concerning a site's classification are made, the Department shall announce by mail or telephone the decision to the clerks of the county; the town or city (as the case may be); and (where located in one) the village, within which the site is located, the site owner and adjacent property owners.

(e) Any person may provide to the Department, and the Department shall consider, information claimed to be relevant to a site listed in the Registry or to an area or structure which may need to be included in the Registry. After considering such information, the Department shall respond to such person stating whether the site or area or structure has been listed and the appropriate classification thereof.

§375-1.9 Registry petitions.

(a) Only a person who is a responsible party by reason of being the current or former owner or operator of a site has standing to make a petition.

(b) Only the following relief may be sought by a petition:

(1) The deletion of a site from the Registry;

(2) The reclassification of a site to a different class on the Registry; or

(3) The modification of any information concerning the site on the Registry.

(c) The Department will act only upon a complete petition, and will deny an incomplete petition without prejudice to it being resubmitted once it is complete. To be complete, a petition must be submitted by a person identified in subdivision 375-1.9(a) of this Part and must seek only relief identified in subdivision 375-1.9(b) of this Part upon the basis of material factual allegations supported by proof that tends to establish the right to the relief sought. If the relief being sought is identified in paragraph 375-1.9(b)(1) or 375-1.9(b)(2) of this Part, the proof must be in the form of an affidavit made by a person having direct knowledge of, or who is an expert with regard to, the subject of the affiant's statements and/or of competent documentation. A petition is a written instrument that will be filed with and become a part of the Department's records.

(d) Not later than 45 days after receipt of a complete petition, the Department shall either:

(1) Summarily determine whether or not to grant the relief asked for in the petition and inform the petitioner of its determination, with a statement of reasons therefor.

(i) A petition will be summarily denied if the factual allegations made therein, even if accepted as true by the Department, would be insufficient to support the grant of the relief sought or any other proper relief.

(ii) A petition will be summarily granted if the factual allegations made therein, if accepted as true by the Department, would be sufficient to support the grant of the relief sought or any other proper relief, and the Department accepts such allegations as true; or

(2) Decide that the petition cannot be summarily determined, and notify the petitioner, and all other persons who would be proper petitioners, of its intent to convene an adjudicatory hearing. A petition cannot be summarily determined if the factual allegations made therein, if accepted as true by the Department, would be sufficient to support the grant of the relief sought or any other proper relief, but the Department does not accept such allegations as true.

(i) A hearing must be scheduled to commence not less than 30 days after the date of notification, and not more than 90 days after receipt of a complete petition.

(ii) The procedures of Part 624 of this Title may be used for adjudicatory hearings other than permit matters, and such procedures shall be utilized in any hearing held pursuant to this section except to the extent that any provision of such Part is contrary to the statute implemented by this section, in which event the statutory provision controls.

(iii) The petitioner bears the burden of proof in any such hearing, and any reference in Part 624 of this Title to an "applicant" shall be construed to be a reference to a petitioner for purposes of the applicability of such Part.

§375-1.10 Remedy selection.

(a) This section establishes the general rules for the selection of a remedy for an entire site, or for an operable unit of a site. For purposes of this Part, the term "operable unit" means a discrete portion of a program that may address geographical portions of a site, specific site problems, or initial phases of a program; and that manages migration or that eliminates or mitigates a release, threat of release, or pathway of exposure.

(b) The goal of the program for a specific site is to restore that site to pre-disposal conditions, to the extent feasible and authorized by law. At a minimum, the remedy selected shall eliminate or mitigate all significant threats to the public health and to the environment presented by hazardous waste disposed at the site through the proper application of scientific and engineering principles.

(c) The program for a site must not be inconsistent with the National Oil and Hazardous Substances Pollution Contingency Plan of March 8, 1990 and must be selected upon due consideration of the following factors:

(1) Standards, criteria, and guidance.

(i) A site's program must be designed so as to conform to standards and criteria that are generally applicable, consistently applied, and officially promulgated, that are either directly applicable, or that are not directly applicable but are relevant and appropriate, unless good cause exists why conformity should be dispensed with. Such good cause exists if any of the following is present:

(a) The proposed action is only part of a complete program that will conform to such standard or criterion [of guidance] upon completion; or

(b) Conformity to such standard or criterion will result in greater risk to the public health or to the environment than alternatives; or

(c) Conformity to such standard or criterion is technically impracticable from an engineering perspective; or

(d) The program will attain a level of performance that is equivalent to that required by the standard or criterion through the use of another method or approach.

(ii) A site's program should be designed with consideration being given to guidance determined, after the exercise of engineering judgment, to be applicable on a case-specific basis. (Note: copies of such guidance are available from the Department at its offices located at 50 Wolf Road, Albany, New York 12233-7010.)

(iii) For purposes of this Part, the terms "standards and criteria" and "guidance" include both those of this State and those of the United States to the extent that they are more stringent than those of this State. (For informational purposes, those of the United States are set forth in a listing in the Response to Comments to the National Oil and Hazardous Substances Pollution Contingency Plan of March 8, 1990.)

(2) Overall protectiveness of public health and the environment.

(3) Short-term effectiveness.

(4) Long-term effectiveness.

(5) Reduction of toxicity, mobility, and volume with treatment. A site-specific remedy that permanently and significantly reduces the volume, toxicity, and/or mobility of the hazardous wastes and/or constituents thereof is to be preferred over a remedy that does not do so. The following is the hierarchy of remedial technologies ranked from most preferable to least preferable:

(i) Destruction, onsite or offsite.

(ii) Separation/treatment, onsite or offsite.

(iii) Solidification/chemical fixation, onsite or offsite.

(iv) Control and isolation offsite or onsite.

(6) Feasibility. A feasible remedy is one that is suitable to site conditions, capable of being successfully carried out with available technology, and that considers, at a minimum, implementability and cost-effectiveness.

(7) Community acceptance.

(d) The remedy selection process will be documented in a Record of Decision (ROD), which will be signed by the Commissioner, and which will consist of the following:

(1) The location and a description of the site;

(2) A history of the operation of the site;

(3) The current environmental and public health status of the site;

(4) An enforcement history and current status of the site;

(5) The specific goals and objectives of the remedial action selected for the site in question;

(6) A description and evaluation of alternatives considered;

(7) A summary of the basis for the Department's decision; and

(8) A listing of the documents the Department used in its decisionmaking.

§375-1.11 Interim remedial measures

(a) Depending on site specific circumstances and post-IRM investigation and/or monitoring, the Department may determine that steps taken as an IRM constitute complete remediation of a site if the IRM achieves the goal of a complete program as described in subdivision 375-1.10(b) of this Part, in which event the Department will propose that no further remedy is required, will solicit public comment on that proposal, and will issue a Record of Decision.

(b) If a responsible party of a site completes to the Department's satisfaction a Department-approved IRM, the Department and the Commissioner, in making, respectively, a later determination under section 375-1.8 of this Part whether the hazardous waste at the site constitutes a significant threat to the environment and the Commissioner's determination under section 375-2.1 of this Part of whether hazardous waste at a site constitutes a significant threat to the environment, may base their respective determinations upon facts and circumstances known to the Department to have existed at any time since the date upon which the site was first listed in the Registry that demonstrate the highest relative priority of the need for action at the site and may disregard any amelioration of conditions at the site accomplished by the IRM unless the IRM achieves the goal of a complete program as described in subdivision 375-1.10(b) of this Part.

(c) When a responsible party for a site develops and implements an IRM in compliance with an order, the Department may exempt such person from the requirement to obtain any permit issuable by the Department pursuant to section 375-1.7 of this Part. This permit exemption does not apply to an IRM performed without such supervision and approval by the Department.

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