For all media inquiries,
please contact:
Michelle Birckhead
Director of Marketing & Business Development
973.530.2119
mbirckhead@csglaw.com

New York City Enacts Brownfields Program

July 2009

On May 11, 2009, New York City Mayor Michael Bloomberg signed into law the "New York City Brownfield and Community Revitalization Act" (the "Act"), as part of the brownfield-related initiatives of PlaNYC 2030. The Act develops a comprehensive program for the reuse and remediation of brownfields in New York City (the "City") and creates a City-administered brownfield program that addresses the cleanup of brownfields within the City that are ineligible for inclusion in New York State's Brownfield Cleanup Program (the "NYS BCP").

The Act formally establishes the Office of Environmental Remediation (the "OER") within the Mayor's Office, creates a director of the OER who is charged with the administration of the Act (the "Director"), and amends the New York City Administrative Code to include the New York City Local Brownfield Cleanup Law (the "LBCL"), which describes the eligibility criteria for entrance into the New York City Local Brownfield Cleanup Program (the "LBCP").

The Office of Environmental Remediation

The LBCL provides authority for the OER to promulgate rules, using New York State standards, for the redevelopment of City brownfields. The Director's duties include: (1) the establishment of a City policy regarding the identification, investigation, remediation and development of brownfields; (2) the development of programs for sustainable growth; and (3) the identification and cataloguing of brownfields, with a focus on communities that contain a disproportionate number of such sites, show indicators of economic distress such as low resident incomes and depressed property values, or areas that contain brownfields that present opportunities to stimulate economic development or community revitalization.

The OER is authorized to: coordinate, partner and enter into agreements with federal and state agencies concerning investigation and remediation of brownfields; administer the E-Designation program (as successor to the New York City Department of Environmental Protection); and use City funds and apply for state and federal grants to support City brownfields projects. Additionally, the Act directs the OER to promote community involvement and assistance in the redevelopment of brownfields through educating and training community groups and developers about brownfields.

Local Brownfield Site Defined

A "local brownfield site" is defined as any real property within the City, the redevelopment or reuse of which may be complicated by the presence or potential presence of light to moderate levels of contamination, or any real property that meets the definition of a "delegated brownfield site." This includes, but is not limited to, real property containing historic fill material and real property rejected from state programs on the grounds that the environmental contamination is not sufficient to warrant state involvement. A "local brownfield site" does not include: (1) sites containing discharges of petroleum, unless authorized by the New York State Department of Environmental Conservation (the "DEC"); (2) sites registered as inactive hazardous waste disposal sites that present immediate risks to public health; (3) Superfund sites pursuant to 42 U.S.C. § 9605; (4) sites subject to enforcement under the New York State Environmental Conservation Law; (5) sites subject to an order for cleanup pursuant to the New York Oil Spill Law or the Petroleum Bulk Storage Law unless the site is subject to a stipulation agreement; or (6) sites subject to on-going City, state or federal enforcement action related to the contamination.

The New York City Local Brownfield Cleanup Program

To qualify for inclusion in the LBCP, a site must meet certain eligibility requirements. First, the site must qualify as a local brownfield site. A local brownfield site may include sites where state or federal law requires investigation or remediation to be supervised by a state or federal agency, but the applicable agency has expressly authorized the site to be supervised by the City. Significantly, sites eligible for the program include those sites rejected from the NYS BCP for failing to demonstrate sufficient environmental contamination. The Act provides for citizen participation in the LBCP by requiring that the OER notify the Borough President, local Council Member, local community board, residents living on or adjacent to the site, community based organizations and other appropriate groups when: (1) it receives an application to participate in the LBCP; (2) before it finalizes a remedial action work plan or approves a report on remedial action; and (3) before construction commences at the local brownfield site. Further, the Act directs the OER to provide opportunities for public comment and to prescribe a procedure for enrollees to make documents available to the public.

Certificate of Completion

Upon successful completion of the LBCP, the OER will issue a Certificate of Completion (the "Certificate") to the enrollee that runs with the land and to subsequent developers and occupants. The Certificate will include: (1) a finding that the enrollee has successfully completed the LBCP; (2) a statement that the City will not require any further investigatory or remedial action regarding the contamination except as provided in any remedial action work plan, site management plan or declaration of covenants and restrictions; and (3) a recommendation that no other government entity take or require additional action with respect to the site. Nevertheless, the City reserves the right to take action with respect to a site when, among other things, there is non-compliance with the cleanup agreement, fraud, a change in use at the site or a change in environmental standards that require further action at the site. The Act directs the OER to seek to enter into agreements with state and federal agencies that formally recognize the Certificate so that the Certificate may stipulate that the agencies will not take any further actions if the site has been appropriately addressed under the LBCP.

Additionally, the Act permits the OER to develop a Clean Property Certification Program (the "Certification Program"), which will award a clean property designation to all properties that enroll and successfully complete the LBCP or NYS BCP. The Certification Program is intended to provide a recognizable symbol for commitment to brownfield cleanup.

Penalties for Violations of the Act

An applicant, enrollee or recipient of a Certificate who misrepresents any material fact related to the investigation, remediation or management of a site will be liable for a civil penalty of not more than $25,000. In addition, the Act permits the Department of Buildings to withhold the issuance of permits for a site that the OER determines has failed to continue to effect all required institutional or engineering controls on the site.

For more information concerning the Act and the opportunities it presents for brownfield development in New York City, please contact Robert H. Crespi at (973) 530-2060 or via email at: rcrespi@wolffsamson.com.

____________________________


This Client Alert should not be construed as legal advice or a legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own lawyer concerning your specific situation or any legal questions you may have.