On October 15, 2025, the New York State Department of Environmental Conservation (DEC) Division of Environmental Remediation (DER) proposed revisions to DER-31, a policy guidance document that outlines the requirements and procedures for Green and Sustainable Remediation under all DER remedial programs. The purpose of Green and Sustainable Remediation (GSR) is to “consider all environmental effects at all stages of the remedial process,” and to incorporate options into remedial practices “that minimize the environmental footprint and increase the resiliency of cleanup actions.”[1]

These are DER’s first revisions to DER-31 in over a decade. The policy was originally issued in 2010 and last revised in January 2011, although DER has increased its emphasis on GSR since the beginning of 2024. DER is proposing these revisions pursuant to the Climate Leadership and Community Protection Act of 2019 (CLCPA), which set ambitious targets for reducing greenhouse gas (GHG) emissions across New York State, mandating a 40% decrease from 1990 levels by 2030 and an 85% decrease by 2050.

The proposed revisions to DER-31 significantly expand the scope of GSR obligations applicable to DEC-regulated remediation sites, which the guidance defines ambiguously. A guiding principle under the proposed DER-31 revisions is that “[a]t all phases of site cleanup, GSR should be implemented to the extent practicable to reduce the overall environmental footprint of site cleanup.”[2]

New and potentially burdensome obligations under the proposed revisions include analysis of upstream GHG emissions for the entire 30-year site management lifecycle of a DEC-regulated remediation site; reporting of GHG metrics in all submissions to DEC for such sites; a requirement that GHG emissions be considered in the selection of remedial alternatives; and a requirement to implement additional mitigation on a site to reduce GHG emissions to the same level as the lowest-emitting remedial alternative (aside from the no-action alternative), as applicable.

DER’s proposed revisions would also impose substantial new administrative requirements on entities developing renewable energy projects on DEC-regulated remediation sites. This proposed program appears likely to disincentivize such development, notwithstanding DER’s intention to further New York’s climate and sustainability goals.

Interested stakeholders should consider submitting public comments on these proposed revisions. DEC will accept public comments on DER-31 until December 2, 2025.

Expanded GSR Procedural Requirements on DEC-Regulated Remediation Sites

The proposed revisions to DER-31 apply to “all remedial decisions in the Spill Response Program, Inactive Hazardous Waste Disposal Site Remedial Program (State Superfund Program), Environmental Restoration Program, Brownfield Cleanup Program, Resource Conservation and Recovery Act (RCRA) Corrective Action Program, and any other DER environmental cleanup program.”[3] Accordingly, all work plans, reports, and/or other submissions for “all phases of remediation” at DEC-regulated remediation sites must incorporate DER-31’s GSR requirements. However, certain low-impact and limited-scope cleanups which DER considers unlikely to “interfere with the attainment of statewide GHG limits” may be exempted from the procedures outlined below and would be required only to conduct a GSR and less-detailed sustainability best practice analysis.[4]

Although DER-31 is technically a guidance document, it imposes substantive obligations that must be addressed in order to receive DEC approvals under Part 375 remedial programs. Nonetheless, DEC reserves its right to “act at variance” with the procedures in DER-31 “to address site-specific circumstances and to change them at any time.”[5] Under the proposed revisions to DER-31, GSR considerations alone cannot justify the selection and implementation of a no-action or lesser remedy where a more comprehensive remedy is appropriate and feasible.

1. Environmental Footprint Analysis

Except for environmental cleanups that fall under certain exempted categories, all submissions to DEC must include an Environmental Footprint Analysis, which evaluates the overall environmental footprint of the site remedy. The Footprint Analysis consists of an “environmental footprint calculation” and “reporting of all required qualitative and quantitative analyses of GSR techniques and technologies.”[6] The footprint may extend beyond the site’s property lines and include adjacent properties or even the larger environment (e.g., to include the environmental effects of upstream emissions from the off-site generation of power used at the site).

More specifically, the proposed revisions require that the Environmental Footprint Analysis include:

• Qualitative and Quantitative Assessments:
  • A qualitative assessment of total impacts, which should be used as a screening tool to eliminate potential remedial alternatives that are not aligned with the goals of DER-31 and the CLCPA from further consideration.
  • A quantitative analysis is then required to support decision making for each cleanup activity. This should be conducted using a DEC-approved program such as SiteWise™, EPA’s Spreadsheets for Environmental Footprint Analysis (SEFA), or an approved equivalent tool.[7] While limited quantitative analyses are currently required under the extant DER-31 policy, the proposed revisions would expand this requirement to include direct and indirect impacts of the remedy, including data on the “projected future footprints and GHG and CO₂ emissions for the remedy’s 30-year site management phase.”[8] This quantitative assessment should also include the impacts of electricity generated off-site and used on-site, plus any other fuel used for the site.
  • An analysis of GSR best management practices (BMPs) should then be conducted “to identify greener cleanup activities that may help minimize the environmental footprint on a site-specific basis.”[9]
• Climate Resiliency Analysis:
  • Remedial parties should conduct a Climate Screening to assess the site’s exposure to climate hazards. If this threshold Climate Screening identifies that a site may be potentially exposed to climate hazards, then a “full-scale Climate Vulnerability Assessment must be conducted.”[10] The Climate Vulnerability Assessment requires evaluating the site remedy against a DEC-approved climate projection model to assess the vulnerability of the remedy, followed by identifying adaptation measures to incorporate into the remedy to increase its resilience.

1. Disproportionate Burden Analysis

When a proposed remedy that is located within a half mile of a disadvantaged community would result in increased GHG and co-pollutant emissions, the remedial party will be required to conduct a “preliminary screening of the potential impacts” related to air quality and related health effects that would result from the remedial alternatives under consideration.[11] If this preliminary screening indicates that the remedy is likely to affect a disadvantaged community, then the remedial party may be required to conduct a disproportionate burden analysis.

This requirement can be expected to impact nearly every DEC-regulated remediation site in New York City (including Brownfield Cleanup Program (BCP) sites), as almost all such sites are located within a half mile of a disadvantaged community. This disproportionate burden analysis would be akin to the assessment of disproportionate pollution burdens required under the State Environmental Quality Review Act (SEQRA), notwithstanding the fact that the BCP is generally exempt from SEQRA and that solar projects under 25 acres on remediated sites are Type II actions not subject to SEQRA review.[12]

1. Remedy Selection

The remedial party must use the quantitative analyses, GSR BMPs, and Climate Resiliency Analysis to compare remedial alternatives. While these analyses may not be used to justify a “no action” remedial alternative, if a cleanup action “can be undertaken that results in fewer GHG emissions and conforms with GSR principles while providing the same or more public health and environmental protection, DER will select or require such actions by remedial parties.”[13] If multiple remedial alternatives offer equivalent public health and environmental protection benefits, then the alternative with the lower emissions would be favored under the DER-31 revisions.

GSR BMPs should then be implemented as part of the proposed remedy. If the proposed remedy is determined by DEC to be inconsistent with State emissions limits, then additional mitigation measures that “sequester, capture, or otherwise reduce the GHG emissions [of the proposed remedy] to the same level as the emissions from the alternative with the lowest GHG emissions, not including the no further action alternative, may be required.”[14]

1. Documentation and Tracking

The proposed DER-31 revisions require that all GSR efforts and metrics be documented in all work plans, reports, and other submissions to DEC, including Periodic Review Reports throughout the typical 30-year post-remediation site management phase. Required documentation includes GSR metrics, which “shall be tracked throughout the environmental cleanup to assess progress towards GSR goals.”[15] Reports that are submitted to DEC must additionally “summarize all GSR actions, including BMPs, climate resilience, and mitigation methods that were implemented during remedial work,” among other GSR-related requirements.[16]

A New Administrative Program for Renewable Energy Development

At the end of the proposed DER-31 revisions, DER has also added a new set of requirements for renewable energy projects on DEC-regulated remediation sites. These proposed requirements would impose significant and burdensome administrative obligations on entities seeking to install renewable energy on such sites (including sites that have already been remediated and are in site management). DER-31 does not define the scope of “renewable energy projects” that would be subject to these requirements, although the document’s definition of “Renewable Energy” is sweeping in its scope.[17] While this new program is ostensibly designed to protect engineering controls (ECs), such as site cover systems and landfill caps, from damage during development of renewable energy projects, the policy as proposed would apply to sites with and without ECs in place. Further, even the installation of rooftop solar on DEC-regulated remediation sites (i.e., not directly on any site cover system) could conceivably fall within the ambit of this program because of the ambiguous definitions .

Under the proposed guidance, developers of renewable energy projects on such sites would be required to:

• Execute DEC’s Model Consent Order (provided in Attachment 3 to the proposed DER-31);
• Comply with the Technical Guidance for the Development of Renewable Energy Projects on DEC-regulated remediation sites (provided in Attachment 4); and
• Submit a pre-notification readiness form (provided in Attachment 5).

These requirements, discussed in further detail below, would effectively constitute an administrative program governing renewable energy development on DEC-regulated remediation sites.

(1)       Model Consent Order

The Model Consent Order would serve as DEC’s enforcement hook for this new program, as it would allow DEC to impose penalties of up to $37,500 per day per violation on individual parties for failure to comply with any of its terms, including obligations to provide 60-day advance notice to DEC of “any project related activities, including but not limited to: requests for proposals, permit pre-application meetings, or other substantive actions to advance the project.”[18] The Model Consent Order requires developers to maintain existing Site Management Plans (SMPs) and ECs, and grants DEC stop-work authority for violations or interference with the site remedy. The Model Consent Order also requires developers to promptly pay DEC for all State oversight costs related to renewable energy at the site.

The Model Consent Order additionally imposes new and significant regulatory requirements on renewable energy developers. These requirements include submission of design plans, which must include techniques and strategies for protecting the remedy, including the site cover system. For solar projects, developers must also submit information required under the DMM-4 Guidance for Photovoltaic Solar Projects at Closed Solid Waste Landfills for DER’s review and approval 30 days before the start of any site work, and solar arrays must maintain a 10-foot radial buffer from any monitoring wells, vents, and ports.[19]

Further, renewable energy developers would be required to submit to DEC final as-built plans; a site-specific Health and Safety Plan; and a Monitoring and Maintenance Plan (or update to an existing Operation and Maintenance Plan) for the renewable energy system at least 30 days in advance of system completion. The developer’s professional engineer must oversee construction to ensure conformance with the construction plans and no interference with the site remedy. And should the developer convey any part of its ownership interest in the site, a transfer-of-ownership notice must be submitted to DEC within 45 days of the conveyance.

(2)       Technical Guidance

Renewable energy developers would also be required to submit substantial technical documentation to DEC for review and approval prior to construction. These would include:

• If applicable, a modified Post-Closure Monitoring and Maintenance Manual and/or SMP for the site to address any changes to these that will result from construction of the renewable energy project;
• If no Post-Closure Monitoring and Maintenance Manual or SMP exist for the site, a report demonstrating that “cover integrity, vegetation, drainage and drainage structures, gas venting structure, and any other related system will be maintained”;[20] and
• A comprehensive “engineering report” with “construction level drawings and plans” that allow DEC to evaluate how components of the project design will relate to the site’s cover system.[21] The “engineering report” should also include elements such as settlement, slope failure and slippage analyses; stream and wetland delineation results where applicable; and details on stormwater management plans. DEC would review and approve such engineering reports.

The Technical Guidance also imposes numerous notification requirements on renewable energy developers including, inter alia, a 30-day advance notification of construction, a pre-construction meeting with DEC, a Construction Work Plan submittal at least 10 days before start of work, monthly progress reports, and notices of Substantial Completion and of Final Completion. Failure to comply with these Technical Guidance requirements would result in violation of the Model Consent Order and potential imposition of civil penalties.

(3)       Pre-Notification Readiness Form

Developers would additionally be required to submit a Pre-Notification Readiness Form to DER Site Control to kick off the Model Consent Order process for renewable energy redevelopment on remediation sites. This form is designed to facilitate DEC’s preliminary review of the project “to determine what permits or authorizations may be needed.”[22] Developers must also submit a financial plan to demonstrate their ability to fund monitoring, maintenance, and decommissioning through the lifecycle of the renewable energy project; DEC may require financial assurances if the lifecycle costs are expected to exceed $5 million.

These extensive compliance obligations for renewable energy projects on DEC-regulated remediation sites can be expected to significantly increase the time, labor, and cost required to install any renewable energy on such sites—including previously-remediated sites subject to an SMP. In 2015, the New York State Legislature enacted a new “renewable energy facility site” gateway for BCP tangible property tax credits, seeking to incentivize renewable energy development on BCP sites.[23] Notwithstanding these 2015 BCP amendments, DER’s proposed revisions to DER-31 are likely to instead disincentivize renewable energy development on such sites, should these requirements remain in the final Revised DER-31.

 

[1] NYSDEC, DER-31 (proposed Oct. 15, 2025), at 1.

[2] Id. at 5.

[3] Id. at 1.

[4] Id. at 4-5 (Cleanups that may be exempt include, e.g., emergency spill responses, cleanups limited in scope, cleanups limited to vapor mitigation, changes to a cleanup that would have no anticipated change on GHG emissions, and reuse or redevelopment of a DEC regulated site for renewable energy if no further remediation is required).

[5] Id. at 2.

[6] Id. at 5.

[7] Id. at 8.

[8] Id.

[9] Id. at 9.

[10] Id.

[11] Id. at 11.

[12] See 6 NYCRR § 375.3-11(b); 6 NYCRR § 617.5(c)(14).

[13] Id. at 3, 9.

[14] Id. at 9.

[15] Id. at 12.

[16] Id.

[17] “Renewable energy is energy produced from unlimited, naturally replenished resources, such as the sun, tides, and wind. Renewable energy can be used for electricity generation, space and water heating and cooling, and transportation.” Id. at 18.

[18] Id. at 14.

[19] Id. Attachment 3 at 4.

[20] Id. Attachment 4 at 2.

[21] Id.

[22] Id. Attachment 5 at 1.

[23] See NY ECL § 27-1407 (1-a).