Clean Soil Bank
Proposed Rules: Closed to Comments
STATEMENT OF BASIS AND PURPOSE
The Mayor’s Office of Environmental Remediation (“OER” or “the office”) proposes to amend the rules of New York City’s brownfield cleanup program (“VCP” or “voluntary cleanup program”) to allow E Designations to function as a declaration of covenants and restrictions. The office administers the City’s brownfield cleanup program, which provides landowners and developers with government approval and oversight of cleanup plans for light to moderately contaminated sites across the City. Under the program’s rules, owners and developers must record a declaration of covenants and restrictions, also known as a deed restriction, against their property deed when they complete an office-approved site remedy that allows low-level soil contamination to remain at a remediated property. Under the proposed amendments, if such a remediated site had a hazardous material E Designation, OER would not require the owner to record a deed restriction.
An E Designation is assigned to a site during a rezoning when a lead agency, during an environmental review, identifies a property as likely to be redeveloped due to the rezoning and further finds that the property’s redevelopment may disturb soil and cause construction workers or site occupants to be exposed to potential hazardous materials or petroleum buried at the site. To protect against such exposures, the lead agency assigns an E Designation for hazardous materials to the site, which prevents the property owner from obtaining a City building permit authorizing construction until OER determines that the new development will not expose construction workers and future site occupants to contaminated soil. A hazardous material E
Designation remains on a rezoned property as long as residual contamination remains at the site, repeatedly blocking the issuance of building permits for subsequent development until OER determines that the redevelopment will not expose construction workers or site occupants to hazardous materials in site soil.
OER proposes the rule amendment because it will maintain public health protection and encourage participation in the City’s voluntary cleanup program. Because the E Designation is enforced through the City’s Department of Buildings, the E Designation will remain on sites, controlling exposures to soil contamination until a complete cleanup is achieved and the E Designation can be removed. In addition, OER anticipates that by ending the use of deed restrictions on E Designation sites, the proposed amendments will increase participation in the City voluntary cleanup program. Under the existing rules for the City brownfield cleanup program, owners may hesitate to enter the program, because they do not want to record a deed restriction against their property record, which they may view as a stigma on their land, depressing its value and making resale more difficult.
The director of OER is authorized to develop and administer a local brownfield cleanup program by paragraph (4) of subdivision (e) of section 15 of the New York City Charter. The office operates the E Designation program under paragraph (15) of that subdivision. The director is authorized by paragraph 18 of that subdivision to adopt rules to implement both programs.