§ 43-1407 Remedial Program.
a. The remedial program shall be fully protective of public health and the environment including, but not limited to, soil, groundwater according to its classification pursuant to § 17-0301 of the New York state environmental conservation law, drinking water, surface water, air (including indoor air), sensitive populations (including children), and ecological resources (including fish and wildlife).
1. Remedial actions shall be selected and the remedial action work plan shall be approved based upon consideration of the following:
A. A remedial program that achieves a permanent cleanup of a contaminated site is preferred over a remedial program that does not do so.
B. The selection of remedial actions shall not interfere with, be inconsistent with, or otherwise impair remedial actions that may be developed or implemented by a state or federal agency.
C. Consistent with federal or state statute, rule or regulation or state guidance document DER-10, issued by the division of environmental remediation of the New York state department of environmental conservation, the selection of remedial actions may take into account the current, intended, and reasonably anticipated future land uses of the site and its surroundings.
D. The selection of remedial actions for soil cleanup shall be pursuant to the cleanup tracks defined in 6 NYCRR part 375-3(e) and state guidance document DER-10, issued by the division of environmental remediation of the New York state department of environmental conservation. For cleanups performed pursuant to track four of that part, the enrollee shall demonstrate that the remedial action would be protective of public health and the environment. This demonstration shall be included in the alternatives analysis developed pursuant to subdivision i of this section.
E. All remedial action work plans, shall be approved by the office in consultation with the New York city department of health and mental hygiene.
2. To achieve stated goals, the remedial program may include, but is not limited to, the actions set forth in this paragraph.
A. A site may be divided into operable units.
B. Multiple work plans and reports may be approved for a site, pursuant to 43 RCNY § 43-1406.
C. The remedial program shall address bulk storage tanks or containment vessels, source removal and control, and groundwater protection and control measures, pursuant to subdivisions b through d of this section.
D. Remedial actions selected for a site shall consider the use of remedial actions that the office has determined to have been demonstrated to be feasible and to meet the remediation requirements.
E. Remedial actions selected for a site may consider the use of innovative technologies that are demonstrated to be feasible to meet the remediation requirements.
F. Where the remedial program for a site requires ongoing site management, the enrollee shall develop a site management plan for the site that shall include, as applicable for the remedial program, the following plans:
i. institutional and engineering control plan;
ii. monitoring plan;
iii. operation and maintenance plan; and
iv. reporting plan.
G. The remedial program at a site shall analyze the impact of contamination at a site on the following environmental media:
i. soil;
ii. groundwater;
iii. surface water and sediments;
iv. soil vapor; and
v. ambient air.
H. Where an interim remedial measure is proposed at a site, such measure shall be conducted pursuant to a work plan approved by the office. Such work plan shall require the submission of a final report upon conclusion of the interim remedial measure.
b. Bulk storage tanks and containment vessels.
1. If any storage tank(s) subject to regulation pursuant to 6 NYCRR parts 596, 597, 598, 599, 610, 612, 613, or 614 is discovered and found not to be registered or not to be operated in accordance with the applicable regulatory requirements, such tank(s) shall be registered and either closed in accordance with regulatory requirements or brought into compliance with the applicable regulatory requirements.
2. Where petroleum storage tanks or chemical storage tanks are discovered on site during the course of the remedial program, such tanks shall be addressed pursuant to state and federal law and in programs designed for that purpose.
3. Where any contaminant is found to be stored on the site in containment vessels, such as storage tanks, drums, or transformers, such contaminants shall be addressed pursuant to state and federal law and in programs designed for that purpose.
c. Source removal and control measures. The following is the hierarchy of source removal and control measures that are to be used to remediate a site, ranked from most preferable to least preferable:
1. Removal and/or treatment. All sources, concentrated solid or semi-solid hazardous substances, dense non-aqueous phase liquid, light non-aqueous phase liquid and/or grossly contaminated media shall be removed and/or treated; provided however, that if the removal and/or treatment of all such contamination is not feasible, such contamination shall be removed or treated to the greatest extent feasible.
2. Containment. Any source remaining following removal and or treatment pursuant to this subdivision shall be contained; provided however, that if full containment is not feasible, such source shall be contained to the greatest extent feasible.
3. Elimination of exposure. Exposure to any source remaining following removal, treatment and/or containment pursuant to this subdivision shall be eliminated through additional measures, including but not limited to, as applicable, the timely and sustained provision of alternative water supplies and the elimination of volatilization into buildings; provided however, that if such elimination is not feasible such exposure shall be eliminated to the greatest extent feasible.
4. Treatment of source at the point of exposure. Treatment of the exposure resulting from a source of environmental contamination at the point of exposure, including but not limited to, as applicable, wellhead treatment or the management of volatile contamination within buildings, shall be considered as a measure of last resort.
d. Groundwater protection and control measures. The remedial program shall satisfy the requirements for groundwater contamination of 6 NYCRR part 375 and shall be consistent with any agreement between the office and a state and/or federal agency.
e. Scope of the investigation.
1. The goals of a remedial investigation include, but are not limited to, the following:
A. delineation of the areal and vertical extent of the contamination at, and emanating from, all media at the site and the nature of that contamination;
B. characterization of the surface and subsurface characteristics of the site, including topography, surface drainage, stratigraphy, depth to groundwater, any aquifers that have been impacted or have the potential to be impacted, and proximity to tidal surface waterbodies;
C. identification of the sources of contamination, the migration pathways and actual or potential receptors of contaminants;
D. evaluation of actual and potential threats to public health and the environment; and
E. production of data of sufficient quantity and quality to support the necessity for, and the proposed extent of, remediation and to support the evaluation of proposed remedial alternatives.
2. Such investigation shall emphasize data collection, sampling and monitoring, as necessary, and shall include but not be limited to:
A. characterization of site geologic and hydrogeologic conditions, including groundwater flow, contaminant movement, and the characteristics of the groundwater system;
B. assessment of the existing and potential impact of groundwater contamination on water supply wells in New York city, including those for drinking water supply, surface water quality, air quality, and indoor air quality;
C. sampling and analysis necessary to gather sufficient information to evaluate human and environmental exposure pathways, as well as any actual or potential adverse effects due to site contamination; and
D. delineation of the nature and extent of contamination sufficient to determine the necessity for and the proposed extent of remediation, in order to support the development and evaluation of proposed alternatives in the remedy selection process.
3. Historical data may be submitted in lieu of collecting new data or to supplement new data, provided that the appropriate quality assurance requirements are met and that the data were collected in a manner consistent with appropriate sampling protocols. All information relevant to the ongoing work must be referenced in the investigation reports, including sampling protocols employed.
4. On-site contamination. Enrollees must fully investigate and characterize the nature and extent of contamination on the qualified local brownfield site.
5. Off-site contamination. Responsibility for off-site contamination is determined by the enrollee's status as follows:
A. A volunteer shall perform a qualitative exposure assessment of the contamination that has migrated from the site consistent with § 27-1415(2)(b) of the New York state environmental conservation law and state guidance document DER-10, issued by the division of environmental remediation of the New York state department of environmental conservation. For sites being addressed by a volunteer, the volunteer has no obligation to implement a remedy to address an off-site exposure identified by this assessment.
B. A participant shall fully investigate and characterize the nature and extent of contamination that has migrated or emanated from the site to off-site locations.
6. The remedial investigation report must demonstrate whether conditions at the site without remediation meet the applicable unrestricted use soil cleanup objectives set forth in the table in 6 NYCRR § 375-6.8(a).
7. Where the applicable unrestricted use soil cleanup objectives set forth in the table in 6 NYCRR § 375-6.8(a) will not be achieved, any determination that the requirements of the brownfield cleanup program have been met without the need for remediation shall be supported by a remedial alternatives analysis.
f. Remedial action selection.
1. Remedial actions shall be selected upon consideration of the following ten factors:
A. Overall protectiveness of the public health and the environment.
B. Standards and criteria. The remedial actions shall:
i. conform to standards and criteria that are generally applicable, consistently applied, and officially promulgated; that are directly applicable; or that are not directly applicable but are relevant and appropriate, unless good cause exists to dispense with conformity. Good cause exists if any of the following is present: (a) the proposed action is only part of a complete program or project that will conform to such standard or criterion upon completion; (b) conformity to such standard or criterion will result in greater risk to the public health or to the environment than alternatives; (c) conformity to such standard or criterion is technically impracticable from an engineering or scientific perspective; or (d) the program or project 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.
C. Long-term effectiveness and permanence: a program or project that achieves a complete and permanent cleanup of the site is preferred over a program or project that does not do so.
D. Reduction in toxicity, mobility or volume of contamination through treatment: a program or project that permanently and significantly reduces the toxicity, mobility or volume of contamination is to be preferred over a program or project that does not do so. The following is the hierarchy of technologies and factors to be considered in selecting a remedial action, ranked from the most preferable to the least preferable:
i. destruction of contamination, on-site or off-site;
ii. separation or treatment of contamination, on-site or off-site;
iii. solidification or chemical fixation of contamination, on-site or off-site; and
iv. control and isolation of contamination, on-site or off-site.
E. Short-term impacts and effectiveness.
F. Ability to be implemented.
G. Cost-effectiveness, including capital costs and annual site maintenance plan costs.
H. Community acceptance.
I. Land uses, provided that the office determines that there is reasonable certainty associated with such uses. In assessing reasonable certainty, the office shall consider:
i. the current, intended, and reasonably anticipated future land uses of the site and its surroundings in the selection of the remedy for soil remediation;
ii. the office's determination on the use of the site shall be in accordance with subdivision k of this section; and
iii. the reasonably anticipated future use of the site and its surroundings, which shall be documented in the analysis of alternatives, taking into consideration factors including, but not limited to, the following:
(a) current use and historical and/or recent development patterns;
(b) applicable zoning laws and maps;
(c) brownfield opportunity areas pursuant to § 970-r of the New York state general municipal law;
(d) applicable comprehensive community master plans, local waterfront revitalization plans as provided for in article forty-two of the New York state executive law, or any other applicable land use plan formally adopted by the city of New York;
(e) proximity to real property currently used for residential use, schools and childcare facilities, and to commercial, industrial, agricultural, and/or recreational areas;
(f) any written or oral comments on the proposed use that are submitted by members of the public through activities performed under the citizen participation plan pursuant to 43 RCNY § 43-1409(c);
(g) environmental justice impacts, which for purposes of this section include the extent to which the proposed use may reasonably be expected to cause or increase a disproportionate burden on the community in which the site is located, including low-income minority communities, or to result in a disproportionate concentration of commercial or industrial uses in what has historically been a mixed use or residential community;
(h) federal or state land use designations;
(i) population growth patterns and projections;
(j) accessibility to existing infrastructure;
(k) proximity of the site to important cultural resources, including federal or state historic or heritage sites or Native American religious sites;
(l) natural resources, including proximity of the site to important federal, state, or city natural resources, including waterways, wildlife refuges, wetlands, or critical habitats of endangered or threatened species;
(m) potential vulnerability of groundwater to contamination that might emanate from the site, including proximity to wellhead protection and groundwater recharge areas and other areas identified by the state's comprehensive groundwater remediation and protection program established in title thirty-one of article fifteen of the New York state environmental conservation law;
(n) proximity to flood plains;
(o) geography and geology; and
(p) current institutional controls applicable to the site.
J. Sustainability of the remedy.
2. Enrollees shall, based upon the characterization of the nature and extent of contamination on-site and qualitative exposure assessment, propose a remedy for the contamination present on the site and address further contaminant migration from the site.
3. Participants shall also, based upon the characterization of the nature and extent of contamination that has migrated from the site, propose a remedy which addresses the off-site contamination.
4. The office shall approve, a remedy for a site after consideration of an alternatives analysis, including an evaluation consistent with subdivision i of this section presented in a site specific remedial action work plan.
5. Selection of a remedial action. The enrollee may select the remedial action from an office-approved alternatives analysis.
g. Application of soil cleanup objectives.
1. General. The office may approve a remedial program that utilizes different tracks and soil cleanup objectives for different uses between different areas of a site, provided that such areas can be defined and described in the declaration of covenants and restrictions and that the necessary institutional and engineering controls can be effectively imposed, implemented, operated, monitored, and maintained in accordance with the office-approved site management plan.
2. Cleanup objectives for other media. The enrollee shall evaluate exposure to public health and the environment resulting from contamination in all other environmental media and shall propose cleanup objectives to eliminate or mitigate the exposure. The enrollee shall include any cleanup objectives approved by the office for other media in the alternatives analysis to ensure that the remedial program meets the requirements of this subdivision and subdivision i of this section.
h. Cleanup tracks. For sites or portions of sites where the office has determined that remediation is needed to meet the remedial program requirements, each remedial alternative that is developed and evaluated shall, in addition to all other requirements in this subdivision and subdivision i of this section, conform to the requirements of one of the following cleanup tracks defined below:
1. Track one: unrestricted use. The following provisions apply to a site, or portion thereof, being remediated pursuant to track one:
A. The remedial program shall achieve a cleanup level that will allow the site to be used for any purpose without any restrictions on the use of the site as described in paragraph one of subdivision k of this section.
B. The soil component of the remedial program shall achieve the unrestricted soil cleanup objectives pursuant to the table in 6 NYCRR § 375-6.8(a) for all soils above bedrock.
C. The remedial program shall not include the use of long-term institutional or engineering controls; provided, however, that a restriction on groundwater use may be included as a component of the remedial program if the enrollee:
i. is a volunteer; and
ii. has demonstrated to the office's satisfaction that there has been a bulk reduction in groundwater contamination to asymptotic levels.
D. The remedial program may include the short-term employment of institutional or engineering controls provided that:
i. the remedial program includes an active treatment system, either ex-situ or in-situ, that will operate for, or require, no more than five years to meet the applicable contaminant-specific soil cleanup objectives or remedial goals established for contaminated media other than soils;
ii. the remedial program requires the institutional control to assure the operation and integrity of the remedy, as well as to address potential human health exposures during this period; and
iii. the remedial program includes a provision for the enrollee to implement an alternative remedy to meet the soil cleanup objectives in the event that the short-term institutional period is exceeded.
2. Track two: Restricted use with generic soil cleanup objectives. The following provisions apply to a site, or portion thereof, being remediated pursuant to track two:
A. The remedial program may provide for the restriction of the use of the site as described in paragraph two of subdivision k of this section.
B. The soil component of the remedial program shall achieve the lowest of the three applicable contaminant-specific soil cleanup objectives for all soils above bedrock, as set forth in 6 NYCRR §§ 375-6.4, 375-6.5 and 375-6.6, except as provided in subparagraph C below.
C. The requirement to achieve contaminant-specific soil cleanup objectives pursuant to the table in 6 NYCRR § 375-6.8(b) for all soils above bedrock shall not apply to soils at a depth greater than fifteen feet below ground surface, provided that:
i. the soils below fifteen feet do not represent a source of contamination;
ii. the declaration of covenants and restrictions for the site requires that any contaminated soils remaining at depth will be managed along with other site soils, pursuant to a site management plan;
iii. off-site groundwater affected by on-site contamination does not exceed standards; and
iv. on-site groundwater use is restricted. If the office determines that a waterfront site that is proposed for industrial use is susceptible to significant coastal erosion from severe storm events, the soil component of the remedial program must achieve the contaminant-specific soil cleanup objectives set forth in 6 NYCRR § 375-6.4(b)(3).
D. The remedial program shall not use long-term institutional or engineering controls to achieve the restricted soil cleanup objectives. The use of short-term institutional or engineering controls is permitted, provided that:
i. the remedial program includes an active treatment system, either ex-situ or in-situ, that will operate for, or require, no more than five years to meet the applicable contaminant-specific soil cleanup objectives or remedial goals established;
ii. the remedial program requires the institutional control to assure the operation and integrity of the remedy, as well as to address potential human health exposures during this period; and
iii. the remedial program includes a provision for the enrollee to implement an alternative remedy to meet the soil cleanup objectives in the event that the short-term institutional period is exceeded.
E. The remedial program may include the use of long-term institutional or engineering controls to address contamination related to other media including, but not limited to, groundwater and soil vapor.
3. Track three: Restricted use with modified soil cleanup objectives. The remedial program for a site being remediated pursuant to track three shall satisfy the provisions for a track two remedial program; provided, however, that the office may approve the modification of one or more of the contaminant-specific soil cleanup objectives set forth in the table in 6 NYCRR § 375-6.8(b) based upon site-specific data. Any such modification shall be performed in accordance with 6 NYCRR § 375-6.9 and in consultation with the New York state department of environmental conservation and/or the New York state department of health.
4. Track four: Restricted use with site-specific soil cleanup objectives. The following provisions apply to a site, or portion thereof, being remediated pursuant to track four:
A. In developing the site-specific soil cleanup objectives, the enrollee may, solely or in combination:
i. use the soil cleanup objectives, as set forth in 6 NYCRR subpart 375-6, except if the office determines that a waterfront site that is proposed for industrial use is susceptible to significant coastal erosion from severe storm events, the enrollee may, solely or in combination, use the soil cleanup objectives as set forth in 6 NYCRR § 375-6.4(b)(1)-(3);
ii. develop or modify site specific soil cleanup objectives, as set forth at 6 NYCRR § 375-6.9; or
iii. propose site-specific soil cleanup objectives that are protective of public health and the environment.
B. The remedial program may include the use of long-term institutional or engineering controls to remediate all media.
C. Exposed surface soils in a track four remedy shall be remediated as follows:
i. for residential use:
(a) the top two feet of all exposed surface soils that are not otherwise covered by the components of the development of the site (such as buildings or pavement) shall not exceed the applicable contaminant-specific soil cleanup objectives pursuant to subparagraph B of paragraph two of this subdivision; and
(b) where it is necessary to utilize off-site soil to achieve this requirement, the soil brought to the site shall satisfy the requirements of 6 NYCRR § 375-6.7(d).
ii. for commercial use:
(a) the top one foot of all exposed surface soils that are not otherwise covered by the components of the development of the site (such as buildings or pavement) shall not exceed the applicable contaminant-specific soil cleanup objectives pursuant to subparagraph B of paragraph two of this subdivision; and
(b) where it is necessary to utilize off-site soil to achieve this requirement, the soil brought to the site shall satisfy the requirements of 6 NYCRR § 375-6.7(d).
iii. for industrial use:
(a) the top one foot of all exposed surface soils that are not otherwise covered by the components of the development of the site (such as buildings or pavement) shall not exceed the applicable contaminant-specific soil cleanup objectives pursuant to subparagraph B of paragraph two of this subdivision; and
(b) where it is necessary to utilize off-site soil to achieve this requirement, the soil brought to the site shall satisfy the requirements of 6 NYCRR § 375-6.7(d).
5. All tracks. For remedial programs under all tracks, the threat to public health and the environment resulting from contamination in environmental media other than soil shall be evaluated in the development of remedial alternatives and addressed in the alternatives analysis to ensure that the remedial program meets the requirements of this subchapter.
i. Alternatives analysis.
1. An alternatives analysis evaluates each remedial alternative developed for a qualified local brownfield site, using the selection factors set forth in subdivision f of this section.
2. The enrollee shall prepare an alternatives analysis for each site, or operable unit of a site, unless the remedy proposed meets the requirements of track one.
3. Contents of an alternatives analysis. Each alternatives analysis shall include, but is not limited to, the following:
A. A description of each alternative evaluated in the analysis. The enrollee shall develop and evaluate alternatives that address:
i. on-site contamination if the enrollee is a volunteer; or
ii. on-site and off-site contamination if the enrollee is a participant.
B. A discussion of how each alternative would achieve the requirements of the remedial program, including the track-specific requirements.
C. An analysis of each alternative against the remedy selection factors set forth in subdivision f of this section, followed by a comparison of this analysis to any other alternatives under consideration.
D. An evaluation of the reliability and viability of the long-term implementation, maintenance, monitoring, and enforcement of any proposed institutional or engineering controls set forth in subdivision l of this section.
E. If applicable, an evaluation of feasible remedial alternatives that can achieve groundwater plume stabilization in accordance with subdivision d of this section.
F. An identification of the alternative preferred by the enrollee.
G. A summary of the proposed remedy and basis for concluding that the proposed remedy represents the best alternative among those considered.
H. Any other information as required by the office.
4. Alternatives to be evaluated. The enrollee shall develop the alternatives analysis in consultation with the office. The alternatives analysis shall consider at least one unrestricted alternative that meets the requirements of track one. The office may request that the alternatives analysis also shall consider at least one alternative that meets the requirements of track two.
5. Plume stabilization. In developing remedies for a site where plume stabilization is a necessary component of the remedy, in accordance with subparagraph C of paragraph one of subdivision d of this section, and where such plume is emanating from an on-site source:
A. A participant shall address, to the extent feasible, the on-site and off-site plume. This requirement includes such actions to maintain and monitor any stabilization of the plume.
B. A volunteer shall address, to the extent feasible, the on-site plume and prevent or mitigate the further migration of any plume off-site at the site boundary. This requirement includes actions to maintain and monitor any stabilization of the plume.
j. Remedial action work plan.
1. The office shall issue a decision document establishing the remedy for a site. The remedial action work plan shall implement the decision document.
2. The remedial action work plan shall provide for the development and implementation of the remedial program for:
A. on-site contamination if the enrollee is a volunteer; or
B. on-site and off-site contamination if the enrollee is a participant.
3. A remedial action work plan shall include at a minimum:
A. a summary of the site history and the nature and extent of contamination;
B. remedial action objectives;
C. a summary of the current, intended, and reasonably anticipated future uses of the site;
D. identification of the cleanup track to be used for remediation of the site as provided in subdivision h of this section;
E. identification and evaluation of any and all institutional or engineering controls to be employed as part of the site remedy as required pursuant to subdivision l of this section, if applicable, and subparagraph D of paragraph three of subdivision i of this section;
F. an alternatives analysis as set forth in subdivision i of this section; and
G. any other information as required by the office.
4. A remedial action work plan shall serve as the remedial design document for a site and shall:
A. be certified by a professional engineer for all engineering design and construction components;
B. include, but not be limited to, the following:
i. plans and specifications sufficient to construct the remedy;
ii. a site health and safety plan;
iii. a community air monitoring plan and community protection statement;
iv. quality assurance and quality control plans for sampling, analysis, and construction; and
v. where required by the office, a sustainability statement.
C. include a program design for site management, if the remedy includes any institutional or engineering controls.
k. Use of a site. A site or a portion of a site may be used for either unrestricted or restricted use.
1. "Unrestricted use" means a lawful use without imposed restrictions, such as a declaration of covenants and restrictions or other land use controls. In reviewing applications for unrestricted use, the Office may consider area-wide or city-wide use restrictions.
2. "Restricted use" means a use with imposed restrictions, such as a declaration of covenants and restrictions. The imposed restrictions are part of the remedy selected for the site and are stipulated in a site management plan. The imposed restrictions rely on institutional controls or engineering controls to manage remaining exposure to contamination at a site. Restricted uses include:
A. "Residential use" is the land use category that allows a site to be used for any use other than raising livestock or producing animal products for human consumption. Restrictions on the use of groundwater are allowed, but no other institutional or engineering controls are allowed with respect to the residential use soil cleanup objectives. When considering the applicability of this land use category, the office shall consider the ability to implement the proposed site management plan and its implementation program, including the need for common ownership of the site in order to implement the site management plan.
B. "Restricted-residential use" is the land use category that shall only be considered when there is common ownership or a single owner/managing entity of the site. When considering the applicability of this land use category, the Office shall consider the ability to implement the proposed site management plan and its implementation program. Restricted-residential use:
i. shall, at a minimum, include restrictions that prohibit: (a) any vegetable gardens on a site, where such gardens in the restricted-residential soil are feasible and reasonably anticipated; and (b) single family housing.
ii. includes active recreational uses, which are public uses with a reasonable potential for soil contact.
C. "Commercial use" is the land use category that shall only be considered for the primary purpose of buying, selling or trading of merchandise or services at street grade or below street grade. Commercial use includes passive recreational uses, which are public uses with limited potential for soil contact.
D. "Industrial use," also known as manufacturing use, is the land use category that shall only be considered for the primary purpose of manufacturing, production, fabrication or assembly processes and ancillary services. Industrial use does not include any recreational component.
3. The Office may approve a remedial program that relies upon no restrictions on use (unrestricted use) or on a range of restrictions on use (restricted uses). The Office may also consider area-wide or city-wide restrictions on use in approval of a remedial program. The following hierarchy represents the range from a less restrictive to a more restrictive land use:
A. residential;
B. restricted-residential;
C. commercial; and
D. industrial.
4. The office's determination of the allowable use of a site as part of a remedial program:
A. is not a determination by the office relative to a specific future use;
B. shall be the least restrictive use of the site, as set forth in paragraph three of this subdivision, allowed by such remedial program and permits more restrictive uses to occur on the site (for example, a site cleanup to a commercial use would also be protective of industrial use); and
C. may disregard the enrollee's proposed use and approve a remedy upon a use that is consistent with existing zoning laws or maps.
5. The office shall not approve a proposed remedial program when the proposed use of the site does not conform with applicable zoning laws or maps or the reasonably anticipated future use of the site as determined by the office, unless:
A. the proposed use is based on a cleanup level that would allow a less restrictive use of the site than would be allowed based upon current zoning laws or maps (for example, the office may approve a cleanup to residential levels for a property which is zoned for commercial use); or
B. it can be shown to the office's satisfaction that zoning changes are or will be sought, in which event the office shall conditionally approve the remedy but shall not issue a notice of completion for such use until such use is consistent with existing zoning laws or maps. In this instance, a notice of completion may be issued for a more restrictive use consistent with the zoning, and reissued by the office for the less restrictive use once it is consistent with the zoning.
6. For purposes of determining the appropriate land use category, the office shall consider the nature of the uses and the activities that are occurring, or may occur, at the site: A. on the ground level and below ground level of any structure. The office may also consider uses above ground level; or
B. on the surrounding land.
l. Institutional controls, engineering controls, and restrictive declarations.
1. Institutional and engineering controls. Institutional and/or engineering controls may be included in a remedial action work plan provided that they are evaluated in the alternatives analysis. A remedy that includes institutional controls and/or engineering controls shall include the following:
A. a complete description of any use restrictions and/or any other institutional controls, their role in achieving the remedial objectives of the remedy, and the mechanisms that will be used to implement, maintain, monitor, report, and enforce such restrictions and controls;
B. a complete description of any engineering controls and any site management plan requirements, including the mechanisms that will be used to continually implement, maintain, monitor, report, and enforce such controls and requirements;
C. an evaluation of the reliability and viability of the long-term implementation, maintenance, monitoring, reporting, and enforcement of any proposed institutional or engineering controls and an analysis of the costs of implementing, maintaining, monitoring, reporting, and enforcing such controls, including costs that may be borne by the state or city;
D. an analysis sufficient to support a conclusion that effective implementation, maintenance, monitoring, reporting, funding and enforcement of institutional and/or engineering controls can be reasonably expected;
E. where required by the office, financial assurance, in accordance with 43 RCNY § 43-1410(b), to ensure the long term implementation, maintenance, monitoring, reporting, and enforcement of any such controls; and
F. any engineering control must be used in conjunction with institutional controls to ensure the continued integrity of such engineering control.
2. Declaration of covenants and restrictions.
A. Any site-specific use restrictions, any other institutional controls, any engineering controls and/or any site management requirements applicable to the qualified local brownfield site shall be contained in a declaration of covenants and restrictions, which shall be:
i. created and recorded, prior to the issuance of the notice of completion, in the recording office for the borough(s) where any portion of the site is located, or in the case of a hazardous materials e-designation, in the official records of the New York city department of buildings; and
ii. in a form and manner as prescribed by the director.
B. The office shall notify the department of buildings and other relevant agencies of the declaration of covenants and restrictions.
C. Agents, employees, or other representatives of the city may enter and inspect the property restricted by a declaration of covenants and restrictions with reasonable prior notice to the property owner, to assure compliance with the restrictions identified by the declaration of covenants and restrictions.
3. Institutional control/engineering control certification.
A. The enrollee or owner at a site at which institutional or engineering controls are employed as part of a remedy, shall annually submit, unless an alternate certification period is provided in writing by the office, a written certification:
i. by a professional engineer for all active remedial systems;
ii. by a professional engineer or a qualified environmental professional for all mitigation or passive remedial systems; or
iii. where the only control is an institutional control on the use of the property or a physical barrier or cover, the written certification may be made by the property owner.
B. The certification shall be included in a report summarizing the site management effort for the certification period, in such form and manner as the office may require, and shall certify that:
i. the inspection of the site to confirm the effectiveness of the institutional and engineering controls required by the remedial program was performed under the direction of the party making the certification;
ii. the institutional controls and/or engineering controls employed at such site: (a) are in-place; and (b) are in the office-approved format.
iii. nothing has occurred that would impair the ability of such controls to protect the public health and environment;
iv. the enrollee or owner will continue to allow access to such real property to representatives of the office to evaluate the continued maintenance of such controls;
v. nothing has occurred that would constitute a violation or failure to comply with any site management plan for such controls;
vi. the report and all attachments were prepared under the direction of, and reviewed by, the party making the certification;
vii. to the best of his/her knowledge and belief, the work and conclusions described in the certification are in accordance with the requirements of the site remedial program and generally accepted science and engineering practices; and
viii. the information presented is accurate and complete.
C. Where contaminants in groundwater at the site boundary contravene drinking water standards, the institutional and engineering control certification shall:
i. certify that no new information has come to the enrollee's or owner's attention, including groundwater monitoring data from wells located at the site boundary, if any, to indicate that the assumptions made in the qualitative exposure assessment of off-site contamination are no longer valid; and
ii. certify every five years that the assumptions made in the qualitative exposure assessment remain valid.
D. Only one institutional control/engineering control certification shall be filed per site. If a site is comprised of multiple properties or parcels, the enrollee or owner shall arrange to file one consolidated certification.
E. In the event that the certification cannot be provided due to a failure of one or more of the institutional or engineering controls, the enrollee or owner shall provide the office:
i. timely notification explaining the cause for such failure;
ii. a work plan to implement the corrective measures necessary in order to be able to provide the certification; and
iii. a schedule for those corrective measures.
F. In addition to the periodic reporting requirement, the enrollee or owner shall timely notify the office of any failure of one or more of the institutional or engineering controls and shall provide a work plan to remedy any failure of the institutional or engineering control.
G. The office shall review the work plan referenced in subparagraphs E and F of this paragraph as provided in 43 RCNY § 43-1406(c)(5) and the enrollee or owner shall implement the corrective measures in accordance with the approved work plan. The enrollee or owner shall submit a certification, meeting the requirements of clause ii of subparagraph E of this paragraph upon completion of the corrective measures.
H. The report provided in subparagraph B of this paragraph shall be placed by the enrollee in the site document repository.
(Amended City Record 12/28/2015, eff. 1/27/2016)
