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Compromise Bill--S. 5702 |
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STATE OF NEW YORK ________________________________________________________________________
5702 2003-2004 Regular Sessions IN SENATE June 19, 2003 ___________ Introduced by Sen. MARCELLINO -- (at request of the Governor) -- read twice and ordered printed, and when printed to be committed to the Committee on Rules
AN ACT to amend the environmental conservation law, in relation to enacting the "brownfield cleanup program" and in relation to environ- mental easements (Part A); to amend the environmental conservation law, in relation to enacting the groundwater protection and remedi- ation program (Part B); to amend the environmental conservation law, in relation to geographic information system (Part C); to amend the environmental conservation law and the real property tax law, in relation to environmental restoration projects (Part D); to amend the environmental conservation law, in relation to inactive hazardous waste disposal sites; and repealing certain provisions of such law relating thereto; to amend the public health law and the public authorities law, in relation to hazardous substances; and to repeal section 1389-e of the public health law relating thereto (Part E); to amend the general municipal law, in relation to state assistance for brownfield opportunity areas (Part F); to amend the navigation law, in relation to defenses which may be raised for certain discharges of petroleum and to repeal subdivision 4 of section 181 of such law relating thereto (Part G); to amend the tax law, in relation to brown- field redevelopment tax credits, remediated brownfield credit for real property taxes for qualified sites, environmental remediation insur- ance credits; and to amend the insurance law, in relation to quali- fication of environmental remediation insurance for tax credit (Part H); and to amend the environmental conservation law, the state finance law, chapter 55 of the laws of 2003, enacting the transportation, economic development and environmental conservation budget, the public authorities law and a chapter of the laws of 2003, amending the gener- al business law and other laws relating to implementing the state fiscal plan for the 2003-2004 state fiscal year, as enacted by legis- lative bill numbers S. 1406-B and A. 2106-B, in relation to financing of hazardous waste site remediation projects (Part I)
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[ LBD15237-02-3
The People of the State of New York, represented in Senate and Assem- bly, do enact as follows:
1 Section 1. This act enacts into law major components of legislation 2 relating to issues deemed necessary for the state. Each component is 3 wholly contained within a Part identified as Parts A through I. The 4 effective date for each particular provision contained within such Part 5 is set forth in the last section of such Part. Any provision in any 6 section contained within a Part, including the effective date of the 7 Part, which makes reference to a section "of this act", when used in 8 connection with that particular component, shall be deemed to mean and 9 refer to the corresponding section of the Part in which it is found. 10 Section three of this act sets forth the general effective date of this 11 act. 12 PART A 13 Section 1. Article 27 of the environmental conservation law is amended 14 by adding a new title 14 to read as follows: 15 TITLE 14 16 BROWNFIELD CLEANUP PROGRAM 17 Section 27-1401. Short title. 18 27-1403. Declaration of policy and findings of fact. 19 27-1405. Definitions. 20 27-1407. Request for participation. 21 27-1409. Brownfield site cleanup agreement. 22 27-1411. Work plan requirements. 23 27-1413. Alternatives analysis. 24 27-1415. Remedial program requirements. 25 27-1417. Citizen participation. 26 27-1419. Certification of completion 27 27-1421. Liability limitation. 28 27-1423. Payment of state costs. 29 27-1425. Change of use. 30 27-1427. Reserved. 31 27-1429. Permit waivers. 32 27-1431. Access to sites. 33 § 27-1401. Short title. 34 This act shall be known and may be cited as the "Brownfield Cleanup 35 Program". 36 § 27-1403. Declaration of policy and findings of fact. 37 The legislature hereby finds that there are thousands of abandoned and 38 likely contaminated properties that threaten the health and vitality of 39 the communities they burden, and that these sites, known as brownfields, 40 are also contributing to sprawl development and loss of open space. It 41 is therefore declared that, to advance the policy of the state of New 42 York to conserve, improve, and protect its natural resources and envi- 43 ronment and control water, land, and air pollution in order to enhance 44 the health, safety, and welfare of the people of the state and their 45 overall economic and social well being, it is appropriate to adopt this 46 act to encourage persons to voluntarily remediate brownfield sites for 47 reuse and redevelopment by establishing within the department a statuto- 48 ry program to encourage cleanup and redevelopment of brownfield sites. 49 All remedies shall be fully protective of public health and the environ- 50 ment including, but not limited to, groundwater according to its classi- 51 fication pursuant to section 17-0301 of this chapter. A remedial program
1 that achieves a permanent cleanup of a contaminated site, including the 2 restoration of groundwater to its classified use, is to be preferred 3 over a remedial program that does not do so. It is the intent of the 4 legislature that the provisions of this brownfield cleanup program shall 5 not be construed as limiting or otherwise affecting any authority 6 conferred upon the department by any other provision of law. 7 § 27-1405. Definitions. 8 1. "Applicant" shall mean a person whose request to participate in the 9 brownfield cleanup program under this title has been accepted by the 10 department: 11 (a) "Participant" shall mean an applicant who either: (i) was the 12 owner of the site at the time of the disposal of hazardous waste or 13 discharge of petroleum or (ii) is otherwise a person responsible accord- 14 ing to applicable principles of statutory or common law liability, 15 unless such person's liability arises solely as a result of such 16 person's ownership or operation of or involvement with the site subse- 17 quent to the disposal of hazardous waste or discharge of petroleum. 18 (b) "Volunteer" shall mean an applicant other than a participant, 19 including without limitation a person whose liability arises solely as a 20 result of such person's ownership or operation of or involvement with 21 the site subsequent to the disposal of hazardous waste or discharge of 22 petroleum, provided however, such person exercises appropriate care with 23 respect to hazardous waste found at the facility by taking reasonable 24 steps to: 25 (i) stop any continuing release; 26 (ii) prevent any threatened future release; and 27 (iii) prevent or limit human, environmental, or natural resource expo- 28 sure to any previously released hazardous substance. 29 2. "Brownfield" or "brownfield site" shall mean any real property, the 30 redevelopment or reuse of which may be complicated by the presence or 31 potential presence of a hazardous waste, petroleum, pollutant, or 32 contaminant. Such term shall not include real property: 33 (a) listed in the registry of inactive hazardous waste disposal sites 34 under section 27-1305 of this article at the time of application to this 35 program and given a classification as described in subparagraph one or 36 two of paragraph b of subdivision four of section 27-1305 provided, 37 however except until July first, two thousand five, real property listed 38 in the registry of inactive hazardous waste disposal sites under para- 39 graph b of subdivision two of section 27-1305 of this article prior to 40 the effective date of this article, where such real property is owned by 41 a volunteer; such property shall not be deemed ineligible to partic- 42 ipate; 43 (b) listed on the national priorities list established under authority 44 of 42 U.S.C. section 9605; 45 (c) subject to an enforcement action under title seven or nine of this 46 article, except a treatment, storage or disposal facility subject to a 47 permit, other than an interim status permit; 48 (d) subject to an order for cleanup pursuant to article twelve of the 49 navigation law or pursuant to title ten of article seventeen of this 50 chapter; or 51 (e) subject to any other on-going state or federal environment 52 enforcement action related to the hazardous waste or petroleum which is 53 the site subject to this agreement. 54 3. "Brownfield site contact list" shall mean a list of persons, 55 government agencies, groups, or organizations, including, but not limit- 56 ed to the chief executive officer and zoning board of each county, city,
1 town and village in which such site is located, the public water suppli- 2 er which serves the area in which such site is located, any site resi- 3 dents, any person who has requested to be placed on the site contact 4 list, and the administrator of any school or day care facility located 5 on the site for the purposes of posting and/or dissemination at the 6 facility. For the purposes of this section "water supplier" means any 7 public water system as such term is defined for the purposes of the 8 sanitary code of the state of New York as authorized by section two 9 hundred twenty-five of the public health law. Provided, however, that 10 where the site or adjacent real property contains multiple dwelling 11 units, the applicant shall work with the department to develop an alter- 12 native method for providing such notice in lieu of mailing to each indi- 13 vidual. 14 4. "Brownfield site cleanup agreement" shall mean an agreement 15 executed in accordance with section 27-1409 of this title by an appli- 16 cant and the department for the purpose of completing a brownfield site 17 remedial program. 18 5. "Brownfield site remedial program" or "remedial program" shall mean 19 all remedial activities or actions undertaken to eliminate, remove, 20 treat, abate, control, manage, or monitor hazardous waste or petroleum 21 at or emanating from a brownfield site, including, but not limited to, 22 the following: 23 (a) remedial investigation and remedy selection activities needed to 24 develop such a program; 25 (b) design activities; 26 (c) construction activities including without limitation grading, 27 contouring, trenching, grouting, capping, excavating, transporting, 28 incinerating, thermally treating, chemically treating, biologically 29 treating, or constructing leachate collection and treatment systems; 30 (d) interim remedial measures; 31 (e) post-construction operation, maintenance, and monitoring; 32 (f) restoration of the environment; 33 (g) involvement by local governments of jurisdiction and by the gener- 34 al public; or 35 (h) oversight by the department. 36 6. "Citizen participation plan" shall mean the description of citizen 37 participation activities prepared and carried out by municipalities, 38 community based organizations and/or applicants pursuant to section 39 27-1417 of this title. 40 7. "Concentrated solid or semi-solid hazardous substances" shall mean 41 solid or semi-solid hazardous substances present in surface or subsur- 42 face soil, surface water or groundwater in a concentrated form, such as 43 precipitated metallic salts, metal oxides, or chemical sludges. 44 8. "Contamination" or "contaminated" shall mean the presence of a 45 hazardous waste or petroleum in any environmental media, including soil, 46 surface water, groundwater, air, or indoor air. 47 9. "Dense non-aqueous phase liquid" or "DNAPL" shall mean a hazardous 48 substance that is a liquid that is denser than water and does not 49 dissolve or mix easily in water. 50 10. "Document repository" shall mean a repository of brownfield site 51 remedial program documents approved by the department or released for 52 public notice established in a publicly accessible building near the 53 location of such site. 54 11. "Engineering control" shall mean any physical barrier or method 55 employed to actively or passively contain, stabilize, or monitor hazard- 56 ous waste or petroleum, restrict the movement of hazardous waste or
1 petroleum to ensure the long-term effectiveness of a remedial program, 2 or eliminate potential exposure pathways to hazardous waste or petrole- 3 um. Engineering controls include, but are not limited to, pavement, 4 caps, covers, subsurface barriers, vapor barriers, slurry walls, build- 5 ing ventilation systems, fences, access controls, provision of alterna- 6 tive water supplies via connection to an existing public water supply, 7 adding treatment technologies to such water supplies, and installing 8 filtration devices on private water supplies. 9 12. "Feasible" shall mean suitable to site conditions, capable of 10 being successfully carried out with available technology, implementable 11 and cost effective. 12 13. "Financial assurance" shall include but not be limited to surety 13 bonds, trust funds, letters of credit, insurance or a multiple of finan- 14 cial mechanisms as determined to be adequate by the department. 15 14. "Free product" shall mean an immiscible non-aqueous phase liquid 16 other than a dense non-aqueous phase liquid present as a liquid, in 17 surface or sub-surface soil, surface water or groundwater in a poten- 18 tially mobile state. 19 15. "Grossly contaminated soil" shall mean soil which contains free 20 product or residual contamination which is identifiable visually, 21 through the perception of odor, by elevated contaminant vapor levels, by 22 field instrumentation, or is otherwise readily detectable. 23 16. "Groundwater" shall mean water below the land surface in a satu- 24 rated zone of soil or rock. This includes perched water separated from 25 the main body of groundwater by an unsaturated zone. 26 17. "Hazardous waste" or "contaminant" shall mean a hazardous waste as 27 defined in section 27-1301 of this article, and petroleum as defined in 28 this section. 29 18. "Institutional control" shall mean any non-physical means of 30 enforcing a restriction on the use of real property that limits human or 31 environmental exposure, restricts the use of groundwater, provides 32 notice to potential owners, operators, or members of the public, or 33 prevents actions that would interfere with the effectiveness of a reme- 34 dial program or with the effectiveness and/or integrity of operation, 35 maintenance, or monitoring activities at or pertaining to a brownfield 36 site. 37 19. "Interim remedial measures" shall mean activities to address both 38 emergency and non-emergency site conditions, which can be undertaken 39 without extensive investigation and evaluation, to prevent, mitigate, or 40 remedy environmental damage or the consequences of environmental damage 41 attributable to a site, including but not limited to, the following 42 activities: construction of diversion ditches, collection systems, free 43 product recovery systems, or leachate collection systems; construction 44 of fences or other barriers; installation of water filters; provision of 45 alternative water systems; the removal of free product; or plume 46 control. 47 20. "Light Non Aqueous Phase Liquid" or "LNAPL" shall mean a hazardous 48 substance that is a liquid that is lighter than water and does not 49 dissolve or mix easily in water. 50 21. "Municipality" shall mean a local public authority or public bene- 51 fit corporation, a county, city, town, village, school district, super- 52 visory district, district corporation, improvement district within a 53 county, city, town or village or Indian nation or tribe recognized by 54 the United States with a reservation wholly or partly within the bounda- 55 ries of the state, or any combination thereof.
1 22. "Newspaper notice" shall mean the placement of a prominently 2 located, paid newspaper advertisement in the community bulletin section 3 or similar local section of a newspaper of general circulation in the 4 vicinity of the brownfield site which is the subject of the notice. Such 5 notice shall be in English and in any other language spoken by signif- 6 icant numbers of people within the community. 7 23. "Non-aqueous phase liquid" shall mean a liquid that does not 8 dissolve or mix easily in water. 9 24. "Not-for-profit corporation" shall mean a not-for-profit corpo- 10 ration exempt from taxation under section 501(c) (3) of the internal 11 revenue code whose stated mission is not inconsistent with promoting 12 reuse of brownfield sites within a specified geographic area, and who 13 has exercised due care with respect to any hazardous waste or petroleum 14 at the brownfield site, taking into consideration the characteristics of 15 such hazardous waste, in light of all relevant facts and circumstances, 16 including but not limited to a not-for-profit corporation whose board of 17 directors shall include residents of the community or communities in 18 such specified geographic area and who has a demonstrated record of 19 community involvement and/or revitalization. A "not-for-profit corpo- 20 ration" shall not include any not-for-profit corporation whose acts or 21 omissions have caused or contributed to the release or threatened 22 release of a hazardous waste from or onto the brownfield site, or any 23 not-for-profit corporation that generated, transported, or disposed of, 24 or that arranged for, or caused the generation, transportation, or 25 disposal of hazardous waste from or onto the brownfield site. This defi- 26 nition shall not apply if any member, officer or director of the not- 27 for-profit corporation is or was employed or receiving compensation from 28 any person responsible for a site under title thirteen of this article, 29 any responsible party under this title or under applicable principles of 30 statutory or common law liability. 31 26. "Off-site contamination" shall mean any hazardous waste or petro- 32 leum which has emanated from a brownfield site beyond the real property 33 boundaries of such site, via movement through air, indoor air, soil, 34 surface water or groundwater. 35 27. "On-site contamination" shall mean any hazardous waste or contam- 36 ination located within the real property boundaries of a brownfield 37 site. 38 28. "Permanent cleanup" or "permanent remedy" shall mean a cleanup or 39 remedy that would allow a site to be used for any purpose without 40 restriction and without reliance on the long-term employment of institu- 41 tional or engineering controls. 42 29. "Petroleum" shall have the meaning set forth in section one 43 hundred seventy-two of the navigation law. 44 30. "Residual contamination" shall mean a hazardous waste remaining as 45 a solid, semi-solid or immiscible liquid in surface or subsurface soil, 46 geologic matrix pore spaces or fractures and held in place by capillary 47 forces or other physical or chemical forces that will not drain from the 48 formation. 49 § 27-1407. Request for participation. 50 1. A person who seeks to participate in this program shall submit a 51 request to the department on a form provided by the department. Such 52 form shall include information to be determined by the department suffi- 53 cient to allow the department to determine eligibility and the reason- 54 ably anticipated land use of the site pursuant to section 27-1415 of 55 this title.
1 2. If the applicant chooses, a work plan for a site investigation or a 2 final report describing the results of an investigation that meets the 3 requirements of this article. 4 3. The department shall notify the applicant requesting participation 5 in this program within ten days after receiving such request that such 6 request is either complete or incomplete. In the event the application 7 is determined to be incomplete the department shall specify in writing 8 the missing necessary information required pursuant to this article to 9 complete the application. 10 4. Upon the receipt of an application, the department shall notify the 11 administrator of the New York environmental protection and spill compen- 12 sation fund to determine whether such person has been identified as 13 responsible for cleanup and removal costs for the discharge of petroleum 14 at or emanating from the brownfield site for which the person is seeking 15 participation and that there is an outstanding claim against such person 16 pursuant to article twelve of the navigation law. The administrator 17 shall notify the department and the applicant within thirty days of such 18 notice of any outstanding claim by the fund against such person at the 19 brownfield site for which the person is seeking participation. 20 5. Upon the determination that the application is complete, the 21 department shall commence a thirty day comment period and place a 22 notification of receipt of request to participate in this program in the 23 environmental notice bulletin and provide newspaper notice. The depart- 24 ment shall also provide notice thereof in writing to the chief executive 25 officer and zoning board of each county, city, town and village in which 26 such brownfield site is located, residents of the site, the public water 27 supplier which services the area in which such brownfield site is 28 located, any person who has requested to be placed on the site contact 29 list and the administrator of any school or day care facility located on 30 the site for the purposes of posting and/or dissemination at the facili- 31 ty. For purposes of this section "water supplier" means any public 32 water system as such term is defined for the purposes of the sanitary 33 code of the state of New York as authorized by section two hundred twen- 34 ty-five of the public health law. Provided, however, that where the 35 site or adjacent real property contains multiple dwelling units, the 36 applicant shall work with the department to develop an alternative meth- 37 od for providing such notice in lieu of mailing to each individual. 38 6. The department shall use all best efforts to expeditiously notify 39 the applicant within forty-five days after receiving their request for 40 participation that such request is either accepted or rejected. 41 7. In the event a final investigation report describing the results 42 of an investigation that meets the requirements of this article was 43 submitted with the application, the applicant shall establish a document 44 repository, notify individuals on the site contact list, and provide for 45 a thirty day comment period. Within sixty days after receiving appli- 46 cant's application the commissioner shall inform the applicant in writ- 47 ing that the investigation is complete or that the investigation is 48 incomplete and specify the missing necessary information required pursu- 49 ant to this article to complete the investigation and/or the final 50 investigation report. 51 8. The department shall reject such request if: 52 (a) the department, based on the preliminary environmental assessment 53 and/or other information the department possesses, determines that the 54 request is for real property which does not meet the requirements of a 55 brownfield site as defined in this title; or
1 (b) there is an action or proceeding relating to the brownfield site 2 against the person who is requesting participation that is pending in 3 any civil or criminal court in any jurisdiction, or before any state or 4 federal administrative agency or body, wherein the state or federal 5 government seeks the investigation, removal, or remediation of hazardous 6 wastes or petroleum or penalties. 7 (c) The person requesting participation is subject to an outstanding 8 claim as provided in subdivision four of this section. 9 9. The department may reject such request for participation if the 10 department determines that the public interest would not be served by 11 granting such request. The department shall consider factors, including 12 but not limited to, the following: 13 (a) The applicant has been determined in an administrative, civil or 14 criminal proceeding to have violated any provision of this article, any 15 related order or determination of the commissioner, any regulation 16 promulgated pursuant to this article, or any similar statute, regu- 17 lation, order of the federal or other state government. 18 (b) The applicant has been denied entry into this program based upon 19 one or more of the provisions of this subdivision, or a similar 20 provision of federal or other state law. 21 (c) The applicant has been found in a civil proceeding to have commit- 22 ted a negligent or intentionally tortuous act, or has been convicted in 23 a criminal proceeding of a criminal act involving the handling, storing, 24 treating, disposing or transporting hazardous waste or petroleum. 25 (d) The applicant has been convicted of a criminal offense under the 26 laws of any state or of the United States which involves a violent felo- 27 ny offense, fraud, bribery, perjury, theft, or an offense against public 28 administration as that term is used in article one hundred ninety-five 29 of the penal law. 30 (e) The applicant has in any matter within the jurisdiction of the 31 department knowingly falsified or concealed a material fact or knowingly 32 submitted a false statement or made use of or made a false statement on 33 or in connection with any document or application submitted to the 34 department. 35 (f) The applicant is either: 36 (1) an individual who had a substantial interest in or acted as a high 37 managerial agent or director for any corporation, partnership, associ- 38 ation or organization which committed an act or failed to act, and such 39 act or failure to act could be the basis for the denial of a permit 40 pursuant to this section or regulations promulgated thereunder if such 41 corporation, partnership, association or organization applied for a 42 permit under this title; 43 (2) a corporation, partnership, association, organization, or any 44 principal thereof, or any person holding a substantial interest therein, 45 which committed an act or failed to act, and such act or failure to act 46 could be the basis for the denial of a permit pursuant to this section 47 or regulations promulgated thereunder if such corporation, partnership, 48 association or organization applied for a permit under this title; or 49 (3) a corporation, partnership, association or organization or any 50 high managerial agent or director thereof, or any person holding a 51 substantial interest therein, acting as high managerial agent or direc- 52 tor for or holding a substantial interest in another corporation, part- 53 nership, association or organization which committed an act or failed to 54 act, and such act or failure to act could be the basis for the denial of 55 a permit pursuant to this section or regulations promulgated thereunder
1 had such other corporation, partnership, association or organization 2 applied for a permit under this title. 3 For the purposes of this subdivision, "high managerial agent" has the 4 same meaning as is given that term in section 20.20 of the penal law, 5 and "substantial interest" shall be defined in regulations promulgated 6 by the commissioner. 7 § 27-1409. Brownfield site cleanup agreement. 8 The agreement shall include, but not be limited to, the following 9 provisions: 10 1. One requiring the applicant to pay for state costs; provided, 11 however, that with respect to a brownfield site after which the depart- 12 ment has determined constitutes a significant threat to the public 13 health or environment the department may include a provision requiring 14 the applicant to provide a technical assistance grant, as described in 15 subdivision three of section 27-1417 of this article and under the 16 conditions described therein, to an eligible party in accordance with 17 procedures established under such program, with the cost of such a grant 18 serving as an offset against such state costs; 19 2. One setting forth a process for resolving disputes arising from the 20 evaluation, analysis, and oversight of the implementation of the work 21 plan as described; 22 3. One requiring an indemnification provision which holds the state 23 harmless from any claim, suit, action, and cost of every name and 24 description arising out of or resulting from the fulfillment or 25 attempted fulfillment of the agreement, except for those claims, suits, 26 actions, and costs arising from the state's gross negligence or willful 27 or intentional misconduct; 28 4. One authorizing the department to terminate a brownfield site 29 cleanup agreement at any time during the implementation of such agree- 30 ment if the applicant implementing such agreement fails to substantially 31 comply with such agreement's terms and conditions; 32 5. One exempting the applicant from the requirement to obtain any 33 state or local permit or other authorization for any activity satisfying 34 the following criteria: 35 (a) the activity is conducted on the brownfield site or on different 36 premises that are under common control or are contiguous to or phys- 37 ically connected with the brownfield site and the activity manages 38 exclusively hazardous waste and/or petroleum from such brownfield site, 39 (b) the activity satisfies all substantive technical requirements 40 applicable to like activity conducted pursuant to a permit as determined 41 by the department, and 42 (c) the activity is conducted under such brownfield site cleanup 43 agreement; 44 6. One stating that the department shall not consider the applicant an 45 operator of such brownfield site based solely upon execution or imple- 46 mentation of such brownfield site cleanup agreement for purposes of 47 remediation liability; 48 7. A requirement that the applicant conduct investigation and/or reme- 49 diation activities pursuant to one or more work plans which are approved 50 by the department; 51 8. One requiring the preparation and implementation of a citizen 52 participation plan consistent with the requirements of this title as 53 soon as possible following execution of the agreement but no later than 54 prior to the preparation of a draft remedial investigation plan by the 55 applicant which shall include a description of citizen participation 56 activities already performed by the department;
1 9. One requiring a waiver by the applicant, effective upon the issu- 2 ance of a certificate of completion pursuant to section 27-1419 of this 3 title, of any right of such volunteer has or may have to make a claim 4 pursuant to article twelve of the navigation law with respect to the 5 brownfield site, and a release of the New York environmental protection 6 and spill compensation fund from any and all legal or equitable claims 7 or causes of action that such volunteer may have as a result of entering 8 into a brownfield site agreement or fulfilling a brownfield site remedi- 9 al program at such site; and 10 10. The inclusion of other conditions considered necessary by the 11 department concerning the effective and efficient implementation of this 12 title, and, where the applicant is a participant, the department shall 13 include provisions relating to recovery of state costs incurred before 14 the effective date of such agreement. 15 § 27-1411. Work plan requirements. 16 1. A remedial investigation work plan shall provide for the investi- 17 gation and characterization of the nature and extent of the contam- 18 ination within the boundaries of the brownfield site; provided, however, 19 a participant shall also be required to fully investigate and character- 20 ize the nature and extent of contamination emanating from such site. An 21 applicant must perform a qualitative exposure assessment pursuant to 22 subdivision two of section 27-1415 regarding contamination emanating 23 from such site. Such work plan shall require that the applicant cause a 24 final report to be prepared and submitted to the department that identi- 25 fies the investigation activities completed pursuant to such work plan. 26 Such final report, at a minimum, shall: 27 (a) Fully characterize the nature and extent of contamination at the 28 brownfield site; a participant shall also fully characterize the nature 29 and extent of contamination that has migrated from the brownfield site; 30 and an applicant shall describe the findings of the off-site exposure 31 assessments; 32 (b) State whether the completed investigation has demonstrated that 33 conditions at the brownfield site (1) require remediation in order to 34 meet the remedial requirements of this title or (2) meet the require- 35 ments of this title without necessity for remediation; 36 (c) For it to be determined that the requirements of this title have 37 been met without the necessity for remediation, an alternatives analysis 38 pursuant to section 27-1413 of this title must support such determi- 39 nation for all sites which do not meet the requirements in track 1 for 40 unrestricted use; and 41 (d) Within twenty days of the completion of the final report the 42 department shall determine if the site poses a significant threat based 43 on criteria developed pursuant to title thirteen of this article. 44 2. A remedial work plan shall provide for the development and imple- 45 mentation of a remedial program for such contamination within the bound- 46 aries of such brownfield site; provided, however, that a participant 47 shall also be required to provide in such work plan for the development 48 and implementation of a remedial program for contamination that has 49 migrated from such site. 50 3. Interim remedial measures. (a) Interim remedial measure work plan. 51 For interim remedial measures that are not emergency response actions an 52 interim remedial measure work plan shall be prepared by the applicant 53 containing such provisions as the department deems appropriate. 54 (b) Interim remedial measure report. For interim remedial measures 55 that are not emergency response actions, an interim remedial measure 56 report must be prepared and submitted to the department which shall
1 include a description of all interim remedial measures complete pursuant 2 to the interim remedial measure work plan. 3 4. The commissioner shall use all best efforts to expeditiously 4 approve, modify, or reject a proposed work plan within forty-five days 5 from its receipt or within fifteen days of the close of the comment 6 period, whichever is later. 7 (a) If the commissioner rejects a proposed work plan, the commissioner 8 shall notify the applicant and specify the reasons for rejecting same. 9 (b) If the commissioner approves or modifies such proposed work plan, 10 the commissioner shall notify the applicant, in writing, that the 11 proposed work plan has been approved or modified. If the commissioner 12 requires a modification, the applicant may agree to modify such proposed 13 work plan or withdraw it from consideration. 14 5. Nothing in this section shall prohibit or limit the department from 15 terminating a brownfield site cleanup agreement at any time during its 16 implementation if the applicant subject to such brownfield site cleanup 17 agreement fails to comply substantially with such agreement's terms and 18 conditions. 19 6. Within six months of the determination that a site poses a signif- 20 icant threat, in the event that the applicant is a volunteer, the 21 department shall bring an enforcement action against any parties known 22 or suspected to be responsible for contamination (other than such volun- 23 teer) at or emanating from the site according to applicable principles 24 of statutory or common law liability. If such action cannot be brought, 25 or does not result in the initiation of a remedial program by such party 26 or parties at such site, the department shall use best efforts to begin 27 a remedial program to perform the remediation of off-site contamination 28 at such site within one year of the completion of such enforcement 29 action or the completion of the volunteer's remedial program, whichever 30 is later. The state shall use moneys from the hazardous waste remedial 31 fund established pursuant to section ninety-seven-b of the state finance 32 law to undertake the investigation and/or remediation of such contam- 33 ination. The state's costs incurred relative to such off-site contam- 34 ination shall be recoverable from the person or persons responsible. 35 § 27-1413. Alternatives analysis. 36 1. For sites proposed to be remediated under track I pursuant to 37 section 27-1415, the applicant shall develop and evaluate at least one 38 remedial alternative. 39 2. For all other sites, the applicant shall develop and evaluate at 40 least two remedial alternatives, one of which would achieve a track I 41 cleanup. The department shall have the discretion to require the evalu- 42 ation of additional alternatives at a site that has been determined to 43 pose a significant threat. The applicant shall submit the alternatives 44 analysis to the department for review, approval, modification or 45 rejection. 46 3. For sites that the department has determined constitute a signif- 47 icant threat, the department shall select the remedy from a department- 48 approved alternatives analysis. 49 4. For sites that the department has determined do not constitute a 50 significant threat, the applicant may select the remedy from a depart- 51 ment-approved alternatives analysis, which analysis shall contain at 52 least two remedial alternatives as set forth in subdivision two of this 53 section. Provided, however, that the department may require the appli- 54 cant, as a condition of continuing under this program, to develop and 55 evaluate a Track II cleanup pursuant to section 27-1415 for such non- 56 significant threat site upon due consideration of the following factors:
1 (a) the degree to which the remedy selection criteria would be better 2 satisfied by a Track II cleanup; (b) the degree of impact a Track II 3 cleanup would have on the applicant's ability to successfully cleanup 4 and/or redevelop the property; (c) the benefit to the environment to be 5 realized by the expeditious remediation of the property; and (d) the 6 economic benefit to the state to be realized by the expeditious remedi- 7 ation of the property. In those instances where the department has 8 required the applicant to develop and evaluate a Track II cleanup, the 9 department shall have the discretion to, as a condition of continuing |