§ 43-1402 Definitions.
RCNY § 43-1402
For the purposes of this subchapter, the following terms shall have the following meanings: a. "Affordable housing development" means a development that will be built by a developer on a qualified local brownfield site where at least twenty percent of the housing units are affordable to families that earn no more than eighty percent of the average median income of an area, as determined by the United States department of housing and urban development, and that has been issued a letter of interest from a federal, state or local housing subsidy program. b. "Alternatives analysis" means a study undertaken to develop and evaluate options for remedial action in accordance with 43 RCNY § 43-1407(i). c. "Applicant" means a person who has submitted a request to participate in the City voluntary cleanup program but is not yet an enrollee. d. "Change of use" means the transfer of title to all or part of a qualified local brownfield site that results in a change in the party or parties implementing a site management plan; the erection of any structure on the site; the creation of a park or other public or private recreational facility on the site, or any activity that is likely to disrupt or expose contamination or to increase direct human exposure to contamination; or any other conduct that will or may tend to significantly interfere with an ongoing or completed remedial program at such site and the continued ability to implement the engineering and institutional controls associated with such site, including such condition as may be included in a property's site management plan. e. "Citizen participation plan" is a site-specific plan for citizen involvement in a remedial program, as provided in § 24-905 of the Administrative Code of the City of New York, § 27-1417(2) of the New York state environmental conservation law, and 6 New York codes, rules, and regulations ("NYCRR") part 375-1.10(c). f. "Community facility development" means a development that will be built by a developer on a qualified local brownfield site where the development provides specific benefits to the local community, including but not limited to, a community facility use pursuant to the zoning resolution. g. "Community protection statement" means a statement contained in the remedial action work plan that provides a summary description of specific efforts to be taken during the remedial action to provide for protection of the health and safety of residents and others in the vicinity of the site. The community protection statement is intended to be written in concise, non-technical language to assist community members in understanding the full range of protective actions to be taken during the remedial program. h. "Concentrated solid or semi-solid hazardous wastes" means solid or semi-solid hazardous wastes present in surface or subsurface soil, surface water, sediment or groundwater in a concentrated form, such as precipitated metallic salts, metal oxides, or chemical sludges. i. "Contaminant" means hazardous waste or, as provided for in an agreement between the office and a state agency, petroleum. j. "Contamination" or "contaminated" means the presence of hazardous waste or, as provided for in an agreement between the office and a state agency, petroleum in any environmental media, including soil, historic fill, surface water, groundwater, soil vapor, air, or indoor air. k. "Coordinated brownfield site" means any real property, for which an agreement between the office and a state agency authorizes participation in the program according to a mutually agreed-upon form of oversight or for which federal law requires a portion of an investigation or remediation to be supervised and/or approved by a federal agency, where such federal agency has expressly authorized in writing that such real property may be investigated and/or remediated according to a mutually agreed-upon form of oversight. Pursuant to such mutually agreed-upon form of oversight, the state and/or federal agency shall supervise and/or approve a portion of such investigation and/or remediation, and the city shall supervise and/or approve the remainder of such investigation and/or remediation. The city shall coordinate investigation and remediation of a coordinated brownfield site through communications with such state and/or federal agency. Such mutually agreed-upon form of oversight shall be subject to any and all appropriate restrictions as may be required by law, rule, or regulation or agreed to by the parties. The office shall not prevent or interfere significantly with any proposed, ongoing, or completed remedial program of such state or federal agency at a coordinated brownfield site. l. "Day" means a calendar day. m. "Declaration of covenants and restrictions" means controls on the use of a site that are listed on the deed or that are established under a hazardous materials e-designation and that seek to prevent potential exposure to any residual contamination remaining at the site. n. "Director" means the director of the office of environmental remediation or such individual's designee. o. "Disposal" means the abandonment, discharge, deposit, injection, dumping, spilling, leaking or placing of any contaminant so that such contaminant or any related constituent thereof may enter the environment. Disposal also means the thermal destruction of a contaminant and the burning of a contaminant as fuel for the purpose of recovering usable energy. p. "Document repository" means a repository of documents from a site's remedial program that is established in a publicly accessible building near the location of such site or on a publicly accessible website administered by the office. q. "Ecological resources" means all flora and fauna and the habitats that support them, excluding such biota as pets, livestock, and agricultural and horticultural crops. r. "Emergency" means a spill, or other event or condition, whether natural or human-made, as a result of which a release or threatened release of contamination presents an immediate threat to life, health, property, or natural resources. s. "Engineering control" means any physical barrier or method employed to actively or passively contain, stabilize, or monitor contamination, restrict the movement of contamination to ensure the long-term effectiveness of a remedial program, or eliminate potential exposure pathways to contamination. Engineering controls include, but are not limited to, pavement, caps, covers, subsurface barriers, soil vapor barriers, soil vapor extraction systems, slurry walls, building ventilation systems, monitoring devices, fences, access controls, provision of alternative water supplies via connection to an existing public water supply, adding treatment technologies to such water supplies, and installing filtration devices on private water supplies. t. "Enrollee" means an applicant who has been accepted into the City voluntary cleanup program and has signed a local brownfield cleanup agreement. u. "Environment" means any water including surface or groundwater, sediment, water vapor, any land including land surface or subsurface, air including soil vapor, fish, wildlife, other biota, all other natural resources and humans. v. "Feasible" means suitable to site conditions, capable of being successfully carried out with available technology, implementable and cost effective. w. "Financial assurance" means a financial mechanism or multiple financial mechanisms, including, but not limited to, surety bonds, trust funds, letters of credit, and insurance, as determined to be adequate by the office, to ensure the long term implementation, maintenance, monitoring and enforcement of the engineering and institutional controls at a qualified local brownfield site. x "Grossly contaminated media" means soil, sediment, surface water or groundwater that contains sources or substantial quantities of mobile contamination in the form of non-aqueous phase liquid that is identifiable either visually, through strong odor, by elevated contaminant vapor levels or is otherwise readily detectable without laboratory analysis. y. "Groundwater" means water below the land surface in a saturated zone of soil or rock. This includes perched water separated from the main body of groundwater by an unsaturated zone. z. "Hazardous materials e-designation" means the designation of an (E) pursuant to § 11-15 of the zoning resolution of the city of New York, because of potential soil contamination at a rezoned property. aa. "Hazardous waste" means a hazardous waste as defined in § 27-1301 of the New York state environmental conservation law. bb. "Historic fill material" means non-indigenous material, deposited or disposed of to raise the topographic elevation of real property, which material may have been contaminated prior to emplacement, and is in no way connected with the subsequent operations at the location of the emplacement and which includes, without limitation, construction and demolition debris including uncontaminated solid waste resulting from the construction, remodeling, repair and demolition of utilities, structures, land clearing and roads. It may also include solid waste resulting from dredge spoils, incinerator residue, demolition debris, coal ash, fly ash, and non-hazardous waste. "Historic fill material" does not include any material which is chemical production waste or waste from processing of metal or mineral ores, residues, slag or tailings. In addition, historic fill material does not include a municipal solid waste site built after nineteen hundred sixty two. cc. "Institutional control" means any non-physical means of enforcing a restriction on the use of real property, including a declaration of covenants and restrictions, that limits human or environmental exposure, restricts the use of groundwater, provides notice to potential owners, operators, or members of the public, or prevents actions that would interfere with the effectiveness of a remedial program or with the effectiveness and/or integrity of operation, maintenance, or monitoring activities at or pertaining to a qualified local brownfield site. dd. "Interim remedial measure" means activities to address both emergency and non-emergency site conditions, which can be undertaken without extensive investigation and evaluation, to prevent, mitigate or remedy environmental damage or the consequences of environmental damage attributable to a site, including, but not limited to, the following activities: construction of diversion ditches; collection systems; tank removal; leachate collection systems; construction of fences or other barriers; installation of water filters; provision of alternative water systems; removal of source areas; or plume control. ee. "Local brownfield cleanup agreement" or "agreement" means an agreement executed by an applicant and the office that sets forth the parties' responsibilities in the remediation of a site in the City voluntary cleanup program. ff. "Non-aqueous phase liquid" means a contaminant that is a liquid which may be denser or lighter than water and does not mix easily or dissolve in water, but remains as a separate phase. gg. "Notice holder" means the enrollee named in the notice of completion issued by the office, as well as such enrollee's successors and assigns who have received a transfer of such notice in accordance with 43 RCNY § 43-1408(g). hh. "Notice of completion" means a written notice that is issued by the office to an enrollee who has successfully investigated and remediated a qualified local brownfield site to the satisfaction of the office. Notice of completion shall have the same meaning as certificate of completion, as defined in § 24-902 of the Administrative Code of the City of New York. ii. "Office" means the office of environmental remediation. jj. "Off-site contamination" means any contamination that has emanated from a remedial site beyond the real property boundaries of such site, via movement through air, indoor air, soil, surface water or groundwater. kk. "On-site contamination" means any contamination that is within the real property boundaries of a qualified local brownfield site, the source of which is located within or beyond the boundaries of such site. ll. "Operable unit" means a portion of the remedial program for a site that for technical or administrative reasons can be addressed separately to investigate, eliminate or mitigate a release, threat of release or exposure pathway resulting from the site contamination. Operable units may address geographical portions of a site, media specific action, specific site problems, or an initial phase of a remedial action, or may consist of any set of remedial actions performed over time or any actions that are concurrent but located in different parts of a site. An operable unit may be proposed by the office or an enrollee; however, only the office can approve the use of operable units. mm. "Ownership" means the possession of equity in the capital, the stock or the profits of an entity or, in the case of real property, fee title to such property. nn. "Participant" means an enrollee who either: 1. was the owner of the qualified local brownfield site at the time of disposal or discharge of contaminants, or 2. is otherwise a person responsible according to applicable principles of statutory or common law liability, unless such person's liability arises solely as a result of such person's ownership or operation of or involvement with the site subsequent to the disposal or discharge of contaminants. oo. "Permanent cleanup" means a cleanup or remedy that would allow a site to be used for any purpose without restriction and without reliance on the long-term employment of institutional or engineering controls. pp. "Person" means an individual, trust, firm, joint stock company, limited liability company, corporation, joint venture, partnership, association, state, municipality, commission, political subdivision of a state, public benefit corporation or any interstate body. qq. "Petroleum" means petroleum as defined in section 172 of the New York state navigation law and § 17-1003 of the New York state environmental conservation law. rr. "Professional engineer" means an individual or firm licensed or otherwise authorized under article one hundred forty-five of the New York state education law to practice engineering. ss. "Program" means the City voluntary cleanup program pursuant to Chapter 9 of Title 24 of the Administrative Code of the City of New York. tt. "Qualified environmental professional" means a person who possesses sufficient specific education, training, and experience necessary to exercise professional judgment to develop opinions and conclusions regarding the presence of releases or threatened releases to the surface or subsurface of a property or off-site areas, sufficient to meet the objectives and performance factors for the areas of practice identified by this chapter. Such a person must: 1. hold a current professional engineer's or a professional geologist's license or registration issued by the state or another state, or hold a baccalaureate degree or higher in engineering or geology and have the equivalent of three years of full-time relevant experience in site investigation and remediation of the type detailed in this subchapter; or 2. be a site remediation professional licensed or certified by the federal government, a state, or a recognized accrediting agency, to perform investigation or remediation tasks and have the equivalent of three years of full-time relevant experience. uu. "Qualified local brownfield site" or "site." 1. Except as provided in paragraph 3 of this subdivision, "qualified local brownfield site" or "site" means: A. any real property within the city, the redevelopment or reuse of which may be complicated by the presence or potential presence of detectable levels of contamination, as defined in § 24-902 of the Administrative Code of the City of New York as light to moderate levels of contamination, including real property containing historic fill material and real property rejected from or ineligible for the state brownfield cleanup program pursuant to title 14 of article 27 of the New York state environmental conservation law and excluding any real property that meets the definition of a coordinated brownfield site; or B. any real property that meets the definition of a coordinated brownfield site.
2."Qualified local brownfield site" or "site" may include a site designated as an E-designation hazardous material site that otherwise meets the requirements of this subdivision.
3."Qualified local brownfield site" or "site" does not include real property: A. containing discharges of petroleum, except coordinated brownfield sites; B. listed or proposed for listing in the state registry of inactive hazardous waste disposal sites pursuant to § 27-1305 of the New York state environmental conservation law and classified as either (i) causing or presenting an imminent danger of causing irreversible or irreparable damage to the public health or environment – immediate action required, (ii) significant threat to the public health or environment – action required, (iii) does not present a significant threat to the public health or environment – action may be deferred, or (iv) site properly closed – requires continued management; C. a site which the office determines is a suspected inactive hazardous waste site pursuant to § 27-1303 of the New York state environmental conservation law; D. listed or proposed to be listed on the national priorities list pursuant to 42 U.S.C. § 9605; E. subject to an order, agreement, stipulation, or permit providing for cleanup pursuant to the New York state navigation law or the New York state environmental conservation law, except as authorized by the New York state department of environmental conservation upon agreement with the office; or F. subject to any on-going city, state, or federal environmental enforcement action, including ongoing investigations, related to the contamination which is at or emanating from the real property. vv. "Release" means any pumping, pouring, emitting, emptying, or leaching, directly or indirectly, of a contaminant so that the contaminant or any related constituent thereof, or any degradation product of such a contaminant or of a related constituent thereof, may enter the environment, or the disposal of any contaminant. ww. "Remedial action work plan" means a written document providing for the development and implementation of a remedial program for contamination within the boundaries of the qualified local brownfield site; provided, however, that a participant shall also be required to provide in the remedial action work plan for the development and implementation of a remedial program for contamination that has emanated from the qualified local brownfield site. xx. "Remedial investigation" means a process undertaken to determine the nature and extent of contamination at a site or operable unit of a site. The remedial investigation emphasizes data collection and site characterization, and generally is performed in support of the selection of a remedy. yy. "Remedial investigation work plan" means a written document establishing a schedule of field activities to determine the nature and extent of contamination at and/or emanating from a qualified local brownfield site. zz. "Remedial investigation report" means a report that fully characterizes the nature and extent of contamination at and/or emanating from a qualified local brownfield site. aaa. "Remedial program" means all activities undertaken to investigate, design, eliminate, remove, abate, control, or monitor existing health hazards, existing environmental hazards, potential health hazards, and potential environmental hazards in connection with a site, and all activities undertaken to manage waste and contamination from a site including, but not limited to, the following: 1. Site characterization and remedial investigation activities needed to develop and evaluate remedial alternatives; 2. Interim remedial measures; 3. Design activities; 4. Remedial actions, including, but not limited to, construction related activities and the implementation of remedial treatment technologies, including without limitation grading, contouring, trenching, grouting, capping, excavation, transporting, incineration and other thermal treatment, chemical treatment, biological treatment, or construction of groundwater and/or leachate collection and treatment facilities; 5. Post-remedial site management including, but not limited to, the operation, maintenance, and monitoring of remedial treatment technologies, reporting, and the certification of institutional and engineering controls; 6. Restoration of the environment; 7. Appropriate involvement by government and by the public; and 8. Oversight by the office. bbb. "Sediment" means unconsolidated particulate material found at the bottom of lakes, rivers, streams and other water bodies at bed elevations equal to or lower than the mean high water level. ccc. "Significant threat" shall have the meaning set forth at 6 NYCRR part 375-2.7(a). ddd. "Site contact list" shall mean a list of persons, government agencies, groups, or organizations, including, but not limited to the borough president and council member representing the area in which the qualified local brownfield site is located; the community board for the district in which the qualified local brownfield site is located; any residents living on the site, including tenants and renters; adjacent property owners and residents; the administrator or operator of any school or day care facility located on or near the site; brownfield opportunity area community based organizations and other community based organizations or representatives, including local media, that request to be placed on the list or that are identified by the office based on the office's best efforts, including through consultation with community boards; the New York state department of environmental conservation, and any person who has requested to be placed on the list. If the site is within two blocks of another community board district(s) or brownfield opportunity area, the additional community board(s) or brownfield opportunity area community based organizations shall be added to the site contact list. eee. "Site management" means the management of physical barriers and methods and non-physical means to limit human and environmental exposure to contamination at and/or emanating from a site, as well as the implementation of any necessary monitoring, reporting, certification and/or operation and maintenance of a remedy, after the issuance of a notice of completion. fff. "Source area" or "source" means a portion of a site or area of concern at a site where the investigation has identified a discrete area of soil, soil vapor, sediment, surface water or groundwater containing contaminants in sufficient concentrations to migrate in that medium, or to release significant levels of contaminants to another environmental medium, which could result in a threat to public health or the environment. A source area typically includes, but is not limited to, a portion of a site where a substantial quantity of any of the following are present: 1. Concentrated solid or semi-solid hazardous substances; 2. Non-aqueous phase liquids; or 3. Grossly contaminated media. ggg. "Sustainability statement" means a written summary to be included in the executive summary of a remedial action work plan that describes proposed actions to be taken by an enrollee, including the enrollee in conjunction with the office, during the course of a remedial program to increase sustainability of a remediation. Examples of sustainable actions include those designed to reduce carbon emissions, reduce storm water discharges, reduce use of virgin resources and attain specific sustainability goals reported by the city in PlaNYC 2030, the report issued by the office of long-term planning and sustainability in April 2007 that provides a blueprint for sustainable long-term growth for the city. hhh. "Volunteer" means an enrollee other than a participant, including without limitation a person whose liability arises solely as a result of such person's ownership or operation of or involvement with the qualified local brownfield site subsequent to the disposal or discharge of contaminants, provided, however, that such person exercises appropriate care with respect to contamination found at the site by taking reasonable steps to: 1. stop any continuing release; 2. prevent any threatened future release; and 3. prevent or limit human, environmental, or natural resource exposure to any previously released contamination. iii. "Waste" means (1) any garbage, refuse, or sludge from a waste water treatment plant, water supply treatment plant, or air pollution control facility, (2) any other discarded material, whether or not such material may eventually be used for some other purpose, including solid, liquid, semi-solid, or contained gaseous material resulting from industrial, commercial, mining, and agricultural operations or from community activities, and (3) source, special nuclear or by-product material as defined in the atomic energy act of 1954, as amended, except as may be provided by existing agreements between the state of New York and the government of the United States. Waste does not include solid or dissolved material in domestic sewage, or solid or dissolved materials in irrigation return flows or industrial discharges which are point sources subject to permits under New York state environmental conservation law article 17 of the New York state environmental conservation law. (Amended City Record 12/28/2015, eff. 1/27/2016)
