Relates to brownfields and historic fills and mixed historic fill programs

Summary of specific provisions

Section 1 amends the Environmental Conservation Law (ECL) § 27-1405(1)(a), defining "participant", to clar- ify that a landlord would be considered a volunteer, rather than a participant, if such landlord can demonstrate, through lease provisions, that the landlord's tenants were responsible for the disposal of their own hazardous waste and associated contamination.

Section 2 amends ECL § 27-1405(2) defining "Brownfield site" to include those sites that might have historic fill complicating use or develop- ment. Allows volunteer to take control of the real property they are cleaning, provided, if the site is under federal jurisdiction, they receive authorization from the federal government and that all order/enforcement actions remain in place until the Certificate of Completion is ordered.

Section 3 amends ECL § 27-1405 to provide definitions for contaminated, uncontaminated and mixed historic fills.

Section 4 amends ECL § 27-1407 to provide an alternative time frame for notification to the applicant following the request for participation if the current 45-day time frame is not met The alternative would be 45 days or within fifteen days after the initial public comment period, whichever is later. Also requires the DEC to make its "best efforts" (newly defined) to evaluate the application and issue notice of such efforts within this time frame. In the event notice is not issued during this time frame, the application is deemed approved no later than 30 days after the time frame has expired.

Section 5 amends ECL § 27-1415 to allow sites where vapor mitigation systems have been installed to qualify for Track 1 status.

Section 6 provides the DEC 30 days to review the final engineering report before issuing a Certificate of Completion. If the DEC or Depart- ment of Health finds that additional work needs to be completed that was not in the approved remedial work plan, the Certificate of Completion will still be issued, and a supplemental remedial action work plan must be submitted including a schedule for performance. The DEC may re-open the Certificate of Completion if the additional work required is not satisfactorily completed.

Section 7 creates a new ECL § 27-1437 establishing a program for histor- ic fill and mixed historic fill. This program allows municipalities to participate in the program with standards established by the DEC.

Section 8 adds a new ECL § 27-1439 to create a new program outside of the Brownfield Cleanup Program (but with the same state liability limi- tation) for the expedited remediation of minimally contaminated sites. A site is considered minimally contaminated when the suspect contamination is not known, but the historic source is not considered to have signif- icant levels or the contamination is known and minimal and the antic- ipated cost of remediation is considered to be a cost of construction rather than a remedial cost.

Section 9 amends ECL § 71-3607(2) to direct the DEC to coordinate with the local government when property pertaining to an environmental ease- ment is the subject of an application to develop an expedited process for distinguishing between permits that do and do not affect an environ- mental easement. The DEC would not need to approve permits that are unrelated to environmental easement institutional or engineering controls.

Section 10 clarifies that a nomination study for a designation as a BOA shall not substitute, is not equivalent to, and does not supersede a master plan or other land use study, but it may be developed as an implementation strategy and attached to a final BOA plan.

Justification

This bill makes programmatic reforms to the Brownfield Cleanup Program that will expand and streamline the current Program. The inclusion of sites with historic fills and mixed historic fills will allow municipalities, in particular, to participate more successfully in the Program, while maintaining the high level clean-up standards that are the hallmark of the Program. The bill also provides a number of sensible improvements that have been developed in response to concerns and impediments within the Program that became evident as its provisions were put into practice.

Prior legislative history

2007-2008; held for consideration in EnCon 2009; held for consideration in EnCon

Fiscal implications

Undetermined. The bill would expand the number of projects that could be included in the Brownfield Cleanup Program.

Effective date

This Act shall take effect immediately.