The enacted 2025-2026 New York State Budget included changes to the New York State Inactive Hazardous Waste Remedial Program (State Superfund) law. One of those changes, found in Environmental Conservation Law 27-1305(5), requires the New York State Department of Environmental Conservation (DEC) to create superfund site cleanup prioritization criteria that DEC will use to prioritize work at sites. DEC will prioritize remedial programs at superfund sites placed in classification 1 or 2 on the Registry of Inactive Hazardous Waste Disposal Sites, as described below, consistent with the protection of public health and the environment:
(i) Classification 1: Causing or presenting an imminent danger of causing irreversible or irreparable damage to public health or environment—immediate action required;
(ii) Classification 2: Significant threat to public health or environment—action required;
DEC shall review and update these criteria as necessary.
Site cleanup prioritization criteria:
Classification 1
Classification 1 sites will be given the highest priority. Classification 1 sites which are also located in a disadvantaged community will be given the highest priority within this tier. DEC has no current classification 1 sites and has never had a class 1 site since the enactment of the State Superfund program.
Classification 2
Classification 2 sites will be prioritized after Classification 1 sites. Prioritization involves various factors, such as the severity or scope of the human health and/or environmental threat, the proximity to sensitive receptors (e.g., residential areas, day cares, schools, water bodies), proximity to sole source aquifers, characteristics of the contaminants, and potential pathways of exposure. Note that the nature and extent of contamination and cleanup scope can vary widely among significant threat sites. Environmental Media – i.e. soils, groundwater, soil vapor, sediments, biota, ambient air, or surface water – can have one or more categories impacted.
Classification 2 sites will be prioritized on a scoring system of 100 POSSIBLE POINTS, using the following criteria:
- Effects on disadvantaged communities (DAC) when a classification 2 site located in or within a half mile of a DAC [PLUS 15 POINTS]:
- Prioritize remedial programs that would serve to address any disproportionate burden in that community based on associated attributes that result in the area being characterized as a DAC (i.e., potential pollution exposures, land use associated with historical discrimination or disinvestment, health sensitivities).
- Environment:
- HIGH: Sites with contaminants disposed at the site or coming from the site that are resulting in significant adverse impacts to the environment (e.g., documented fish and wildlife impacts) will get the highest consideration for this criterion [PLUS 35 POINTS];
- MODERATE: Sites with contaminants disposed of at the site or coming from the site that are reasonably foreseeable to result in significant adverse impacts to the environment (e.g., no documented fish and wildlife impacts at this time) will get a lower consideration for this criterion [PLUS 15 POINTS]; or
- LOW: Mitigated (e.g., interim remedial measure completed) sites or sites with a low risk of resulting in significant adverse impacts to the environment (e.g., contamination at depth that is confined to the site) will get the lowest consideration for this criterion [PLUS 0 POINTS].
- Human health:
- HIGH: Complete exposure pathway on or off site (e.g., vapor intrusion, public or private water supply(ies) impacted) will get the highest consideration for this criterion [PLUS 40 POINTS];
- MODERATE: Threat or potential for a complete exposure pathway, but no complete human health exposure pathway at this time will get a lower consideration for this criterion [PLUS 20 POINTS]; or
- LOW: Mitigated (e.g., vapor sub-slab depressurization system installed) or low risk of a complete exposure pathway (e.g., contaminated groundwater at the site is not used for drinking water) will get the lowest consideration for this criterion [PLUS 0 POINTS].
- Economy of the state:
- HIGH: Sites which have significant municipal and/or developer interest with reuse planning underway will get the highest consideration for this criterion [PLUS 10 POINTS];
- MODERATE: Site with modest potential for reuse when cleaned up for its intended use, but no third-party interest at this time will get a lower consideration for this criterion [PLUS 5 POINTS]; or
- LOW: Site cleanup activities that will create short term jobs or other economic benefits, but if there are significant barriers to reuse or redevelopment (e.g., low occupancy toxic substances control act (TSCA) cleanup, concerns about lender financing, or restrictive covenants), these sites will get the lowest consideration for this criterion [PLUS 0 POINTS].
DEC’s rationale for its prioritization criteria is consistent with its mandate to identify, investigate, and cleanup classification 2 sites with a goal to eliminate or reduce threats to public health and the environment by prioritizing sites by the relative threat posed to a community, proximity to a DAC, and the economic interests of the State of New York. To prioritize the order in which sites require action, the scoring system weights human health threats highest, followed by environmental threats, DAC proximity, and economic redevelopment potential, in that order.
While the above scoring system will help DEC prioritize where to spend its fiscal and personnel resources, each class 2 significant threat site will be subject to investigation, evaluation of cleanup alternatives, cleanup implementation, and any required site monitoring and maintenance. Operational challenges beyond priority score could also influence timing of one or more of the phases of a cleanup program, including contracting issues, funding, site access, responsible party participation, and other factors outside the scope of the prioritization criteria. Similarly, there are many phases of a cleanup project for a site, including remedial investigation, interim remedial measures to address human health exposures, remedial design, remedial action, and site management. Priorities often change after interim work is completed, new information comes to light, or if remedial work is completed and optimization of the remedy is required.
DEC will continue to pursue cleanup of every site that presents a significant threat and may implement cleanup at sites with lower priorities when a higher priority site is at an impasse because one or more of the above operational challenges is present.
