Request That New York State Senate Environmental Conservation Committee Chair Harckham Impose a Moratorium on New State Brownfield Approvals Until All Applicable Regulatory Cleanup Requirements are Strictly Enforced

Honorable Pete Harckham
Chair, New York State Senate Committee on Environmental Conservation
188 State Street
Legislative Office Building Room 315
Albany, NY 12247

Greetings:

We, the undersigned, write respectfully to request that you take immediate action to halt environmental health hazards caused by inadequate Brownfield toxic site cleanups that fail to fulfill all applicable remediation requirements pursuant to Article 27, Title 14 of the Environmental Conservation Law and other State standards. We specifically ask you to require strict enforcement of the State mandate to restore toxic sites to "pre-disposal conditions, to the extent feasible" pursuant to 6 NYCRR (New York Codes, Rules and Regulations) PART 375-2.8 (a).

As documented below, Governor Hochul's statewide Brownfield program has approved hundreds of egregiously inadequate "restricted residential" site cleanup plans that imperil public health. This irrefutable problem is coming to light in the Gowanus Canal Area of Brooklyn, NY and warrants your attention and action.

Over the last year, the State Department of Environmental Conservation (DEC) documented that Soil Vapor Intrusion (SVI) indoor air contamination hazards caused by Trichloroethylene and other volatile toxic chemicals threatens tens of thousands of residents in the Gowanus Canal Area. This densely developed community covers more than 100 City blocks and has inherited a vast toxics legacy of industrial, manufacturing, utility and other pollution problems that have never been cleaned up.

This area also has more Brownfield developments than any other community in New York State. Given the unprecedented scale of the SVI hazards revealed by State authorities, we respectfully request that you impose a moratorium on all State Brownfield approvals until New York's Brownfield Cleanup Law is strictly enforced. We request that earlier Brownfield approvals also be required to fulfill all remediation mandates.

It is imperative that New York's legacy of toxic hazards be alleviated and eliminated, not multiplied through improper Brownfield redevelopment projects that fail to achieve all legally mandated cleanup requirements.

We trust that you will find our summary of our concerns to be self-explanatory. We look forward to discussing this matter with you and would be pleased to meet at your earliest convenience

The Gowanus Canal Area's Legacy of Toxic Sites That Have Never Been Comprehensively Remediated

We present for your review extensive DEC and State Department of Health data that document New York's inadequate public health environmental protection efforts.

On 11/17/22, we released an analysis that documents DEC failed for decades to require comprehensive investigations and cleanups at more than three dozen Brownfields and other toxic sites in the Gowanus Canal Area even though multiple potential responsible parties are strictly liable for remediation costs. The U. S. Environmental Protection Agency has voiced concern that these "upland" toxic sites could recontaminate its $1.5 billion dredging of more than 600,000 cubic yards of infamous "black mayonaise" contamination in the Gowanus Canal.

See: Public Health and Environmental Toxic Threats Along the Gowanus Canal That Reportedly Do Not Meet All Applicable Cleanup Standards

We believe it is beyond dispute that in the more than 20 years since New York adopted a Brownfield Cleanup Law to promote toxic remediations through tax incentives, the statutory requirements have never been strictly enforced. The text of the law is presented below for your review.

For example, DEC proposed that redevelopment of the infamous Public Place Brownfield site along the Gowanus Canal only remove a mere eight feet of surficial cancer-causing coal tar soil contamination WHILE ALLOWING 140 FEET OF COAL TAR THAT HAS SPREAD MORE THAN 800 FEET TO REMAIN UNDER AS WELL AS AROUND THE SITE WHERE A LOW-INCOME HOUSING PROJECT AND SCHOOL WOULD BE BUILT. Only a thin synthetic soil vapor barrier layer would separate those structures from extraordinarily high-level contamination underlying the site. Trichloroethylene (TCE) documented at the site circa 2004 has yet to be investigated or remediated.

This proposal is simply irresponsible and unacceptable as documented by extensive available data: Draft Carroll Gardens-Public Place Maps

514 Union Street SVI Concerns Come to Light

TCE SVI hazards came to light on 3/14/23 when we documented that DEC and DOH failed for two years to publicize TCE in indoor air at a popular club located on a Brownfield Site at 514 Union Street at more than 20-fold the DOH's indoor air quality protection guideline of 2.0 micrograms/meter³. We revealed that this public health hazard was never brought to public attention even though New York's "immediate action level" of 20 micrograms/meter³ was exceeded by more than two-fold circa 3/21.

We publicized this problem after we learned DEC did not propose to remediate the site in strict compliance with all applicable regulatory requirements.

See: Please Do Not Adopt the Fatally Flawed Proposed "expedited cleanup of contamination at 514 Union Street," Brownfield Site # C224318

Our efforts received regional, national and international media attention: Gowanus Canal Area Cleanup Campaign

473 President Street Off-Site SVI Investigation

We discovered that DEC and DOH similarly failed for eight years to publicize high-level TCE SVI contamination reported circa 2015 at 473 President Street, a property that adjoins 514 Union Street and is part of the same Brownfield site. TCE indoor air contamination exceeded the "immediate action level" in a warehouse at this location circa 3/28/2018. Like 514 Union Street, this SVI hazard was never publicized.

We learned that a 473 President off-site area investigation was begun during the fall of 2022 in the vicinity of President, Union and Nevins Streets. This investigation identified TCE in Soil Vapor along Union Street up to 86,000 micrograms/meter³.

After the 514 Union Street concerns were publicly disclosed, DEC and DOH tried to monitor a total of 33 properties in the area for SVI, but only 14 property owners initially granted access.

The highest level of reported TCE indoor air contamination was 900 micrograms/meter³. This extraordinarily high level of TCE was very likely detected at 543 Union Street. This concentration is more than 450-fold the TCE indoor air guideline and 45-fold the TCE "immediate action level."

This limited SVI investigation documented that at least six out of the 14 properties monitored reportedly require indoor air contamination mitigation.

These properties were likely polluted with TCE for years, if not decades, due to New York's long-standing failure to enforce toxic cleanup requirements.

This is especially true of 543 Union Street where extensive indoor air testing results document extraordinarily high TCE indoor air contamination throughout the building. These analytical results were withheld from public release pursuant to Freedom of Information Law requests for more than a year to date. According to government statements made in early 2/24, a permanent solution reportedly has not been established to reduce TCE in indoor air below the two microgram/meter³ indoor air guideline at that location.

543 Union St, Brooklyn, NY/NYS DOH Trichloroethylene Indoor Air Monitoring Results (3/23-7/23)

Due to shockingly high TCE indoor air contamination findings and intense criticism of Governor Hochul's on-going failure to safeguard public health from TCE contamination, in 9/23 DEC and DOH announced an unprecedented SVI Investigation of the entire Gowanus Canal Area.

Phase I of the SVI Investigation proposed to conduct indoor air testing at 632 properties located at the northern end of the Gowanus Canal. After nearly six months, however, only 96 property owners reportedly granted access for testing. A total of only 49 properties have been investigated. That total might have increased as SVI testing during the 2024 "heating season" ended.

This SVI Investigation is clearly inadequate and unacceptable. The SVI investigation must require mandatory indoor air monitoring for TCE, other chlorinated solvents and per- and polyfluoroalkyl substances and 1,4-Dioxane "emerging contaminants" in all homes, schools, businesses and other structures within a minimum of 1,000 feet of each and every Brownfield and Inactive Hazardous Waste Disposal Site in the Gowanus Canal Area. The SVI Investigation must be completed within two years and all costs must be borne by legally liable responsible parties instead of New York State taxpayers.

New York State routinely takes permissible legal action to require mandatory environmental testing to safeguard public health when Potential Responsible Parties are uncooperative.

Even though the State's SVI investigation was incomplete, on 2/9/24 Governor Hochul inconceivably proposed 18 large housing projects within the SVI Phase I Investigation area. At least eight of the proposed projects involve Brownfields. It would be irresponsible to allow these projects to proceed until the expanded SVI Investigation is completed and all appropriate action is taken to safeguard public health.

See: Video, Audio, Photos & Rush Transcript: Governor Hochul Advances 18 Proposals to Build More Than 5,300 Units of Housing, Including Affordable

Given that approximately 50 Brownfields and Inactive Hazardous Waste Disposal Sites in the Gowanus Canal Area are inadequately remediated based on the same "restricted residential" protocol that DEC permitted all over New York State for decades, we request that you require the current SVI Investigation to be expanded statewide as proposed above to include all Brownfields and Inactive Hazardous Waste Sites. This SVI Investigation must be completed within two years with all costs borne by legally liable responsible parties instead of New York State taxpayers.

TCE Hazards Warrant Urgent Public Health Protection Due to Increased Parkinson's Risk

Widespread TCE hazards in the Gowanus Canal Area, all over New York City and across our state as a whole warrant urgent public health protection action because TCE is well-documented to be a highly toxic, cancer-causing and neurodegenerative chemical that was used for decades as a degreasing agent, chemical solvent and component of a wide array of commercial products. TCE is extraordinarily persistent when released into the environment and can penetrate into homes, buildings and structures through SVI.

See: Trichloroethylene

Available epidemiological studies document that TCE is causally associated with up to a 500% increase in Parkinson's disease risk according to statistically significant findings.

See: Selected Epidemiological and Scientific Articles Regarding Trichloroethylene and Increased Risk of Parkinson's disease

Parkinson's is incurable and the fastest growing neurodegenerative ailment in America. In the last 20 years, more than 21,000 New Yorkers died of this malady. Given that there is no effective cure for Parkinson's, it is imperative to reduce TCE exposures in order to help prevent this heartbreaking ailment.

The Hochul Administration's Lax Enforcement of State Brownfields Cleanup Legal Mandates

The Hochul administration fails to halt TCE environmental exposures because it does not require Brownfields to be cleaned up on a "permanent" basis as prioritized by law. Instead, DEC and DOH permit "interim remedial measures," site management plans, soil vapor barriers as well as institutional and engineering controls that are deemed to achieve limited "restricted residential" soil cleanup requirements. As a result, high-level soil, groundwater and soil gas vapor toxic contamination spreads into adjoining structures and areas from Brownfields in the Gowanus Canal Area as well as other areas across New York.

There is no question that the Hochul administration systematically fails to enforce the strict requirements passed by the State Legislature to make sure all Brownfield sites are investigated and remediated on a comprehensive basis in order to safeguard public health and the environment:

"It is therefore declared that, to advance the policy of the state of New York to conserve, improve, and protect its natural resources and environment and control water, land, and air pollution in order to enhance the health, safety, and welfare of the people of the state (bold is emphasis added) and their overall economic and social well being, it is appropriate to adopt this act to encourage persons to voluntarily remediate brownfield sites for reuse and redevelopment..."

"All remedies shall be fully protective of public health and the environment including, but not limited to, groundwater according to its classification pursuant to section 17-0301 of this chapter. A remedial program that achieves a permanent cleanup of a contaminated site, including the restoration of groundwater to its classified use, is to be preferred over a remedial program that does not do so. It is the intent of the legislature that the provisions of this brownfield cleanup program shall not be construed as limiting or otherwise affecting any authority conferred upon the department by any other provision of law (underscore is emphasis added)."

Despite these clear-cut mandates, DEC and DOH authorities allow toxic polluters and real estate developers to avoid fulfilling comprehensive cleanup requirements, notably restoring toxic sites to "pre-disposal conditions, to the extent feasible."

Landmark 514 Union Street Cleanup Decision Just Announced

On 5/30/24, DEC declared that 514 Union Street "poses a significant threat to public health or the environment." In a Landmark Decision, a "completed cleanup" of "contamination" is required to "make the site fully protective of public health and the environment."

This landmark decision fulfills our request to reject Interim Remedial Measures at 514 Union Street and to require a comprehensive site remediation. This proposed plan of action sets a critical precedent that must be replicated at TCE toxic sites all over New York.

How DEC's Shockingly Inadequate 12/22 Interim Remedial Action Proposal for 514 Union Street Was Rejected in Order to Require a Comprehensive Toxic Site Cleanup to Halt a "Significant Threat to Public Health or the Environment." (5/30/24)

Request for a Statewide Moratorium on All Brownfield Approvals

The Gowanus Canal Area exemplifies the inadequacy of New York's Brownfields remediation program. Now that sweeping regulatory failures have been brought to widespread public attention, we respectfully request that you take swift action to impose a moratorium on all State Brownfield approvals until the full scope of New York's TCE contamination crisis has been comprehensively investigated and resolved.

Urgent Request to Prevent TCE Exposures That Increase Parkinson's Risks

Uncontrolled TCE exposures warrant emergency action to avoid increased Parkinson's risk. We respectfully request that you take statewide action to help prevent Parkinson's and other environmental health threats by requiring strict enforcement of all applicable state regulatory requirements. This requirement must be achieved by making sure New York State authorities hold all Potential Responsible Parties strictly liable for comprehensively investigating and remediating Brownfields and other toxic sites.

We trust that you will find our requests self-explanatory. We will follow up in an effort to meet with you at your earliest convenience to discuss our well-documented concerns. Thank you for your consideration.

Very truly yours,

Walter Hang

cc: Honorable Kathy Hochul
Hon. Eric Adams
Hon. Charles Schumer
Hon. Kirsten Gillibrand
Hon. Members of the Assembly Environmental Conservation Committee
Hon. Deborah Glick
Hon. Members of the State Senate Environmental Conservation Committee
Hon. Nydia Velázquez
Hon. Antonio Reynoso
Hon. Jo Anne Simon
Hon. Jabari Brisport
Hon. Shahana Hanif
Hon. Lisa Garcia
Hon. Members of the New York City Council
Hon. James V. McDonald M.D.
Hon. Sean Mahar
Hon. Members of the Ithaca Common Council
Hon. Members of the Rochester City Council

Brownfield Cleanup Program Goal

The goal of the Brownfield Cleanup Program (BCP) is to encourage private-sector cleanups of brownfields and to promote their redevelopment as a means to revitalize economically blighted communities. The BCP is an alternative to greenfield development and is intended to remove some of the barriers to, and provide tax incentives for, the redevelopment of urban brownfields.

The selection of remedy is based on the characterization of nature and extent of contamination on the site and qualitative exposure assessment. A Participant in the Brownfield Cleanup Program must evaluate and implement an effective remedy that addresses not only contamination on-site but any contamination that has migrated off-site. A Volunteer in the Brownfield Cleanup Program must evaluate and implement an effective remedy to address the contamination on-site as well as prevent further migration of contamination to off-site properties.

375-3.8 Remedial program.
(a) The remedy shall be fully protective of public health and the environment including, but not limited to, groundwater according to its classification pursuant to ECL 17-0301, drinking water, surface water and air (including indoor air), sensitive populations, including children and ecological resources, including fish and wildlife. In addition, a remedy will be selected upon consideration of the following:
(1) a remedial program that achieves a permanent cleanup of a contaminated site, including the restoration of groundwater to its classified use, is preferred over a remedial program that does not do so;
(2) the selection of a remedy will take into account the current, intended, and reasonably anticipated future land uses of the site and its surroundings; and
(3) the risk presented by residual contamination as defined at ECL 27-1405.28 at a site shall not exceed an excess cancer risk of one in one million for carcinogenic end points and a hazard index of one for non-cancer end points, except:
(i) for remedies developed in accordance with paragraph (e)(4) of this section, with a cleanup level which exceeds the parameters in this paragraph, the remedial party must demonstrate that such level would be protective of public health and the environment. This demonstration must be included in the alternatives analysis developed in accordance with subdivision (f) of this section; and
(ii) a cleanup level which exceeds the parameters in this paragraph, may be approved by the department under paragraph (e)(4) of this section, without requiring the use of institutional or engineering controls to eliminate exposure only upon a site-specific finding by the commissioner, in consultation with the State Commissioner of Health, that such level shall be protective of public health and the environment.
(b) Scope of investigation.
Remedial investigations and final investigation reports must be completed in accordance with ECL 27-1411(1); ECL 27-1415(2) and this Part.
(1) On-site contamination. Applicants must fully investigate and characterize the nature and extent of contamination on the brownfield site.
(2) Off-site contamination. Responsibility for off-site contamination is determined by the applicant's status:
(i) a volunteer shall perform a qualitative exposure assessment of the contamination that has migrated from the site in accordance with ECL 27-1415(2)(b) and department guidance. 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. The department will:
(a) bring an enforcement action against any parties known or suspected to be responsible for contamination (other than such volunteer) at or emanating from the site according to applicable principles of statutory or common law liability within six months of the determination that a site poses a significant threat; or
(b) if such action cannot be brought, or does not result in the initiation of a remedial program by such party or parties at such site, use best efforts to begin a remedial program to perform the remediation of off-site contamination at such site within one year of the completion of such enforcement action or the completion of the volunteer's on-site remedial program, whichever is later; or
(ii) 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.
(3) The final remedial investigation report must demonstrate whether conditions at the site meet the applicable unrestricted use soil cleanup objectives set forth in Table 375-6.8(a) of this Part without remediation.
(4) Where the applicable unrestricted use soil cleanup objectives set forth in Table 375-6.8(a) of this Part will not be achieved, any determination that the requirements of the Brownfield Cleanup Program have been met without the need for remediation must be supported by an alternatives analysis.
(c) Remedy selection.
(1) Applicants must, based upon the characterization of the nature and extent of contamination on-site and qualitative exposure assessment, select or propose a remedy for the contamination present on the site and address further contaminant migration from the site.
(2) Participants must also, based upon the characterization of the nature and extent of contamination that has migrated from the site, propose or select a remedy which addresses the off-site contamination.
(3) The department will select, or approve, a remedy for a site after consideration of an alternatives analysis, including an evaluation consistent with section 375-1.8(f) of this Part, presented in, or made part of, a site specific remedial work plan in accordance with ECL section 27-1413(2).
(4) Selection of a remedy. For sites that the department has determined:
(i) constitute a significant threat, the department shall select the remedy from the department-approved alternatives analysis; or
(ii) do not constitute a significant threat, the applicant may select the remedy from a department-approved alternatives analysis.
(d) Application of the soil cleanup objectives.
(1) General. The department may approve a remedial program that utilizes different tracks and soil cleanup objectives for different uses between different areas of a site, provided such areas can be defined and described in the environmental easement and the necessary institutional and engineering controls can be effectively imposed, implemented, operated, monitored and maintained in accordance with the department-approved site management plan.
(2) Cleanup objectives for other media. The exposure to public health and the environment resulting from contamination in all other environmental media shall be evaluated and cleanup objectives to eliminate or mitigate the exposure shall be proposed by the remedial party and any cleanup objectives approved by the department for other media will be included in the alternatives analysis to ensure that the remedial program meets the requirements of this subdivision and section 375-1.8 of this Part.
(e) Cleanup tracks.
For sites or portions of sites where the department 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 section and section 375-1.8(c) of this Part, conform to the requirements of one of the following cleanup tracks.
(1) Track 1: Unrestricted use. The following provisions apply to a site, or portion thereof, being addressed pursuant to Track 1:
(i) 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 section 375-1.8(g)(1)(i) of this Part;
(ii) the soil component of the remedial program shall achieve the unrestricted soil cleanup objectives as set forth in Table 375-6.8(a) of this Part for all soils above bedrock;
(iii) 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 applicant:
(a) is a volunteer; and
(b) has demonstrated to the department's satisfaction that there has been a bulk reduction in groundwater contamination to asymptotic levels;
(iv) the remedial program may include the use of short-term employment of institutional or engineering controls provided:
(a) the remedial program includes an active treatment system, either ex-situ or in-situ, which will operate for, or require, no more than five years to meet the applicable contaminant-specific soil cleanup objectives or remedial goals established for other contaminated media;
(b) 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
(c) the remedial program includes a provision for the applicant to implement an alternative remedy to meet the soil cleanup objectives in the event that the short-term institutional period is exceeded; and
(v) the department may require the applicant, or the applicant may request, to develop a soil cleanup objective for a contaminant not included in Table 375-6.8(a) as set forth in section 375-6.9 of this Part.
(2) Track 2: Restricted use with generic soil cleanup objectives. The following provisions apply to a site, or portion thereof, being addressed pursuant to Track 2:
(i) the remedial program may provide for the restriction of the use of the site as described in section 375-1.8(g)(2)(i) of this Part;
(ii) 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 sections 375-6.4, 375-6.5 and 375-6.6 of this Part, except as provided in subparagraph (iii) of this paragraph;
(iii) the requirement to achieve contaminant-specific soil cleanup objectives as set forth in Table 375-6.8(2) of this Part for all soils above bedrock shall not apply to soils at a depth greater than 15 feet below ground surface, provided that:
(a) the soils below 15 feet do not represent a source of contamination;
(b) the environmental easement 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;
(c) off-site groundwater does not exceed standards; and
(d) on-site groundwater use is restricted; and
(iv) 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 allowed, provided:
(a) the remedial program includes an active treatment system, either ex-situ or in-situ, which will operate for, or require, no more than five years to meet the applicable contaminant-specific soil cleanup objectives or remedial goals established;
(b) 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
(c) the remedial program includes a provision for the applicant to implement an alternative remedy to meet the soil cleanup objectives in the event that the short-term institutional period is exceeded;
(v) 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; and
(vi) the department may require the remedial party, or the remedial party may request, to develop a soil cleanup objective for a contaminant not included in Table 375-6.8(b) as set forth in section 375-6.9 of this Part.
(3) Track 3: Restricted use with modified soil cleanup objectives. The remedial program for a site being addressed pursuant to Track 3 shall satisfy the provisions for a Track 2 remedial program; provided, however, the department may approve the modification of one or more of the contaminant-specific soil cleanup objectives set forth in Table 375-6.8(b) of this Part based upon site-specific data. Any such modification shall be performed in accordance with section 375-6.9 of this Part.
(4) Track 4: Restricted use with site-specific soil cleanup objectives. The following provisions apply to a site, or portion thereof, being addressed pursuant to Track 4:
(i) in developing the site-specific soil cleanup objectives, the applicant may, solely or in combination:
(a) use the soil cleanup objectives, as set forth in Subpart 375-6 of this Part;
(b) develop or modify site-specific soil cleanup objectives, as set forth at section 375-6.9 of this Part; or
(c) propose site-specific soil cleanup objectives which are protective of public health and the environment;
(ii) the remedial program may include the use of long-term institutional or engineering controls to address all media; and
(iii) exposed surface soils in a Track 4 remedy will be addressed as follows:
(a) for residential use:
(1) the top two feet of all exposed surface soils which exceed the site background values for contaminants of concern and are not otherwise covered by the components of the development of the site (e.g., buildings, pavement), shall not exceed the applicable contaminant-specific soil cleanup objectives as set forth in subparagraph (2)(ii) of this subdivision; and
(2) where it is necessary to utilize off-site soil to achieve this requirement, the soil brought to the site will satisfy the requirements of section 375-6.7(d) of this Part;
(b) for commercial use:
(1) the top one foot of all exposed surface soils which exceed the site background values for contaminants of concern and are not otherwise covered by the components of the development of the site (e.g., buildings, pavement), shall not exceed the applicable contaminant-specific soil cleanup objectives as set forth in subparagraph (2)(ii) of this subdivision; and
(2) where it is necessary to utilize off-site soil to achieve this requirement, the soil brought to the site will satisfy the requirements of section 375-6.7(d) of this Part;
(c) for industrial use:
(1) the top one foot of all exposed surface soils which exceed the site background values for contaminants of concern and are not otherwise covered by the components of the development of the site (e.g., buildings, pavement), shall not exceed the applicable contaminant-specific soil cleanup objectives as set forth in subparagraph (2)(ii) of this subdivision; and
(2) where it is necessary to utilize off-site soil to achieve this requirement, the soil brought to the site will satisfy the requirements of section 375-6.7(d) of this Part.
(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 ECL 27-1415(1), subdivisions (a) and (f) of this section, and section 375-6.7 of this Part.
(f) Alternatives analysis.
An alternatives analysis evaluates each remedial alternative developed for a brownfield site, using the selection factors set forth in section 375-1.8(f) of this Part.
(1) An alternatives analysis must be prepared for each site, or operable unit of a site, unless:
(i) the department has selected a remedy for the site in a record of decision under Subpart 375-2 or Subpart 375-4 of this Part prior to the approval of the application for participation;
(ii) the remedy proposed meets the requirements of Track 1; or
(iii) the department has approved the use of a presumptive remedy proposed from a department-approved list of presumptive remedies.
(2) Contents of an alternatives analysis. Each alternatives analysis must include, but is not limited to:
(i) a description of each alternative evaluated in the analysis. Alternatives must be developed and evaluated which address:
(a) on-site contamination if the applicant is a volunteer; and
(b) on-site and off-site contamination if the applicant is a participant;
(ii) a discussion of how each alternative would achieve the requirements of the remedial program, including the Track-specific requirements;
(iii) an analysis of each alternative against the remedy selection factors set forth in section 375-1.8(f) of this Part followed by a comparison of this evaluation to any other alternatives under consideration;
(iv) 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 section 375-1.8(h) of this Part required by ECL 27-1415(7)(a);
(v) if applicable, an evaluation of feasible remedial alternatives that can achieve groundwater plume stabilization in accordance with section 375-1.8(d) of this Part;
(vi) an identification of the alternative preferred by the applicant for selection;
(vii) a summary of the proposed remedy and basis for concluding that the proposed remedy represents the best alternative among those considered; and
(viii) other information required by the department.
(3) Alternatives to be evaluated. The alternatives analysis proposing a remediation:
(i) pursuant to Track 1, shall develop and evaluate at least one remedial alternative capable of achieving the requirements of paragraph (e)(1) of this section; or
(ii) pursuant to a Track other than Track 1, shall develop and evaluate two or more remedial alternatives, as follows:
(a) at least one unrestricted alternative that meets the requirements of Track 1 as set forth in paragraph (e)(1) of this section, unless a presumptive remedy is selected from a department-approved list;
(b) such other alternatives which may be developed by the applicant for the proposed use of the site;
(c) for sites determined by the department to constitute a significant threat, such additional alternatives as the department may require; and
(d) for sites determined by the department not to constitute a significant threat, the department may require a Track 2 evaluation if one has not already been considered pursuant to subparagraph (i) of this paragraph or subclauses (2)-(4) of this clause after considering the following factors:
(1) the degree to which the remedy selection criteria would be better satisfied by a Track 2 cleanup;
(2) the degree of impact a Track 2 cleanup would have on the applicant's ability to successfully cleanup and/or redevelop the property;
(3) the benefit to the environment to be realized by the expeditious remediation of the property; and
(4) the economic benefit to the State to be realized by the expeditious remediation of the property.
(4) Plume stabilization. In developing remedies for a site where plume stabilization in accordance with section 375-1.8(d) of this Part is a necessary component of the remedy where such plume is emanating from an on-site source.
(i) 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.
(ii) A volunteer shall address, to the extent feasible, the on-site plume and prevent the further migration of any plume off-site at the site boundary. This requirement includes such actions to maintain and monitor any stabilization of the plume.
(g) Remedial work plan.
(1) The department will issue a decision document describing the remedy for a site, unless it has previously issued a record of decision under Subpart 375-2 or Subpart 375-4 of this Part prior to the approval of an application to this program. The remedial work plan shall implement the decision document or record of decision.
(2) A remedial work plan must be prepared in accordance with ECL 27-1411 and 27-1415 and must provide for the development and implementation of the remedy, selected as set forth in paragraph (c)(4) of this section, for:
(i) on-site contamination if the applicant is a volunteer; and
(ii) on-site and off-site contamination if the applicant is a participant.
(3) A remedial work plan must include at a minimum:
(i) a summary of the site history and the nature and extent of contamination;
(ii) remedial action objectives;
(iii) a summary of the current, intended, and reasonably anticipated future use of the site;
(iv) identification of the cleanup track to be used for remediation of the site as described in subdivision (e) of this section;
(v) identification and evaluation of any and all institutional or engineering controls to be employed as part of the site remedy as required pursuant to section 375-1.8(h) of this Part, if applicable, and subparagraph (f)(2)(iv) of this section;
(vi) an alternatives analysis as set forth in subdivision (f) of this section; and
(vii) other information as required by the department.
(4) Where a remedial work plan will also serve as the remedial design document for a site it shall:
(i) be certified by a professional engineer;
(ii) include, but not be limited to, the following:
(a) plans and specifications sufficient to construct the remedy;
(b) a site health and safety plan;
(c) a community health and safety plan; and
(d) a quality assurance and quality controls plans for sampling, analysis, and construction; and
(iii) a site management plan, if the remedy includes any institutional or engineering controls.
(h) Institutional and engineering controls.
(1) Institutional and engineering controls can be included as part of a remedial work plan provided there is compliance with section 375-1.8(h) of this Part and they are evaluated in the alternatives analysis.
(2) At nonsignificant threat sites 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 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;
(ii) every five years the remedial party or owner shall certify that the assumptions made in the qualitative exposure assessment remain valid; and
(iii) the requirement to provide such certifications may be terminated as set forth in ECL 27-1415(7)(c).
6 CRR-NY 375-3.8
Current through July 15, 2021