Amendments to OER Program Rule and Brownfield Incentive Grant Rule
Proposed Rules: Closed to Comments
STATEMENT OF BASIS AND PURPOSE
The Office of Environmental Remediation (“Office” or “OER”) was established by Local Law No. 27 of 2009, and Charter § 15(e)(5) authorizes its Director to administer financial incentive programs to promote the identification, investigation, remediation, and redevelopment of brownfields. Charter § 15(e)(6) also authorizes the Director to promote community participation in these activities.
OER is proposing amendments to its Environmental Remediation Rules in two principal ways.
(1) The rule relating to the New York City Brownfield Cleanup Program (“Program Rule”), set forth in Subchapter 1 of Chapter 14, would be revised to amend the definition of “unrestricted use” for sites that enroll in the City Voluntary Cleanup Program (“VCP”) (§ 14-1407).
OER designs, reviews, and approves cleanup plans for light- to moderately- contaminated sites in New York City and later oversees the initial phase of construction at VCP sites to ensure that proposed cleanup plans are actually carried out in the field. Properties that achieve “unrestricted use” status are desirable because they are protective of any legal use the property can be put to. Another feature of “unrestricted use” sites is that their owners are not required to monitor the continued implementation of any restrictions on use.
The proposed amendments (§ 43-1407(k) and (l)) would revise the definition of “unrestricted use” in New York City to specify that restrictions that would be mandatory for a property in the VCP would not include restrictions that already apply to the property as part of area-wide or city-wide land-use or resource-use restrictions. For example, remedial actions would not be required to specify restrictions for activities that are unlawful in New York City. In some circumstances, under existing regulations, the only restriction that would be placed on a property during a remedial action is for uses that are already prohibited by City statutes (i.e., dairy farming). The proposed amendments would allow remedial actions to exclude the establishment of site-specific restrictions that are already prohibited by the City. In other words, such land uses would be excluded from consideration when determining if an unrestricted use cleanup at a site in New York City that achieves the restricted-residential standard is appropriate. Because sensitive uses of land such as dairy farming are not allowed in New York City, the unrestricted use standard that is fully protective of all possible uses of property in New York City can be slightly higher (i.e., the restricted-residential standard) than across the state.
The amendments would also eliminate the need for site owners to conduct long-term monitoring for activities that are not lawful. In addition, by redefining “unrestricted use,” the amendments would encourage more parties enrolled in the VCP to pursue higher-level soil cleanups across New York City.
(2) The Office also oversees and administers the New York City Brownfield Incentive Grant (“BIG”) Program, set forth in Subchapter 2 of Chapter 14, which provides City funds to promote the cleanup and redevelopment of light- to moderately- contaminated sites across the city. The proposed amendments would:
● Expand the list of entities that can perform work eligible for reimbursement with City brownfield grants to include (1) workforce development organizations that offer short term employment to trainees and (2) vendors under contract with the City or the NYC Economic Development Corporation that perform eligible services under the city brownfield grant program (§ 43-1416(m)).
● Expand an existing City pre-enrollment grant, increase the City pre-enrollment grant award limit to $125,000, and create a new City enrollment grant to reimburse affordable and industrial development projects for cleanup activities undertaken in either the VCP or the State brownfield cleanup program. Affordable and supportive housing projects financed by the City Department of Housing Preservation and Development or the City Housing Development Corporation, as well as industrial development projects supported by the NYC Economic Development Corporation, would be eligible for up to $125,000 to cover investigation costs and up to $250,000 in total to cover investigation and site cleanup costs. Services and activities that can be reimbursed under a City enrollment grant are those performed pursuant to a remedial action work plan issued by the Office or the New York state department of environmental conservation (§43-1417(a)(3); § 43-1417(b)(7); § 43-1418(c)(2); § 43-1418(d); § 43-1419(c)(2); § 43-1422(c)(11); § 43-1422(c)(12)).
● Make place-based community brownfield planning groups recognized by OER eligible for a technical assistance grant to develop a reuse plan for a development site and a BOA local match grant to identify, screen, and select strategic sites. By expanding eligibility for these grants, the Office seeks to increase the number of community organizations performing community brownfield planning in the city. The BOA program provides State planning grants to community based organizations to develop plans for the redevelopment of neighborhoods with idle, vacant sites. Recently, the State has declined to provide new funds for the BOA program, prompting OER to supplement existing City support for community brownfield planning (§ 43-1416 (b), (l), (n)(5) and (q); § 43-1417(c)(1) and (2); § 43-1418(d)(2)(B), (d)(3)(A)(ii) and (B); (d)(4)(B)(ii)); § 43-1422(a), (c) (3) and (4); § 43-1423 (d)).
● Expand eligible services and activities for cleanup grants, track one bonus cleanup grants, brownfield opportunity area strategic property bonus cleanup grants, City enrollment grants, e-designation hazardous material remediation grants, climate change resilience bonus cleanup grants, and E-designation/restrictive declaration hazardous material remediation grants to include additional long-term management plans and additional remedial actions commonly required by Office-approved remedial plans. (§ 43-1419(a)(4)).
● Require that parties seeking City reimbursement for eligible cleanup expenses have six months from the receipt of a notice of completion, a notice of satisfaction or a certificate of completion to file a complete City brownfield grant application (§ 43-1420(h)).
● Increase the maximum cleanup grant award available to not-for-profit developers of preferred community development projects to $50,000 and make available to developers of housing and industrial sites supported by City development agencies a consultation service on the feasibility of entering such a site in the State brownfield cleanup program (§ 43-1422(c)(2)).
● The proposed rule amendments acknowledge the change in nomenclature regarding the program that was formerly known as the “Local Brownfield Cleanup Program”, which is now known as the “City Voluntary Cleanup Program” (§§ 43-1401 to 43-1405, 43-1408 to 43-1410, et al).
● The proposal includes numerous technical drafting changes to Subchapters 1 and 2 to ensure consistency and conformity throughout this regulatory scheme.
Finally, Schedule A (“Grant Awards and Award Limits”) and Schedule B (“Eligible Services and Activities/Reimbursable Allowance”) are repealed and re-promulgated both to reflect the numerous substantive revisions set forth in the proposed rule, and to incorporate improved formatting changes.