Notice of Adoption of Rules Relating to New York City's Environmental Remediation Programs

Adopted Rules: Closed to Comments

Agency:
Effective Date: 
Thursday, May 3, 2018

STATEMENT OF BASIS AND PURPOSE

The Office of Environmental Remediation (“Office” or “OER”) was established by Local Law No. 27 of 2009. Charter § 15(e)(6) authorizes its Director to promote community participation in the remediation and redevelopment of brownfields and § 15(e)(8) authorizes the Director to facilitate interactions among City agencies, community based organizations, developers, and environmental experts.  Charter § 15(e)(14) authorizes the Director to take such other actions as may be necessary to facilitate the remediation of brownfields, while § 15(e)(18) authorizes the Director to promulgate rules to implement the Office’s programs.  

Beginning in 2013, OER created the Clean Soil Bank to recover a valuable material --   clean soil -- from deep excavations at private construction sites. Rather than having it shipped to New Jersey for disposal, such soil is re-directed to other New York City construction sites that need clean backfill. Under this Clean Soil Bank program, the soil is moved from generator to receiving site at no cost, except for the cost of trucking, thus creating significant savings for generators of such soil and receiving sites alike. By way of further background, in a typical Clean Soil Bank transfer the generating site picks up the cost of transporting clean soil to an in-City receiving site. As a result, the generator saves most of the cost of trucking and out-of-state disposal of the clean soil, and the receiving site gets clean soil at no cost.

 In the past several years, the Clean Soil Bank has grown substantially:  more than 90 transfers involving more than 430,000 tons of clean soil have been made, keeping the soil in New York City and delivering it to private and public construction projects. 

OER will now expand the Clean Soil Bank in two ways. First, the Office will promote the exchange of other materials, including compost, asphalt millings, mulch, wood chips, concrete aggregate and topsoil, much of which is generated by City agencies, which otherwise would pay to dispose of the materials. Second, the Office will open the Clean Soil Bank to larger private construction projects that are not in an OER remedial program.  

 OER therefore is amending the City’s environmental remediation rules as follows: 

1.  Subchapter 3 of Chapter 14 of Title 43 of the Rules of the City of New York is amended to reflect the current name of the City Voluntary Cleanup Program (§43-1428).    

2.  Subchapter 4 of Chapter 14 of Title 43 of the Rules of the City of New York is amended to revise its title, and to expand the New York City Clean Soil Bank program to promote the exchange of an expanded list of materials including compost, asphalt millings, mulch, wood chips, concrete aggregate, and topsoil (§43-1440, §43-1441). Adding more materials to the Clean Soil Bank will bring the benefits of an expanded materials exchange to a greater number of private and public parties.

3.  Several definitions are amended by the rule:  

●  The definition of “eligible material” in §43-1441 is revised to reflect the expanded list of materials eligible for exchange through the Clean Soil Bank and Other Materials Exchanges program. The amendments would also allow properties that receive materials to use them for beneficial uses beyond backfill, such as using the soil to create shoreline berms to protect against flooding.    

●  The definition of “eligible properties” for the Clean Soil Bank and Other Materials Exchanges program is revised to distinguish between City-owned, financed, subsidized, or supported properties and properties not owned, financed, subsidized, or supported by the City (§43-1442).  By making this distinction, OER hopes to make it easier for property owners working with the City to be a part of the materials exchange program.  

● The definition of “generating properties” is expanded to include City-operated or City-financed materials storage or processing facilities (§43-1442). This change is intended to allow City facilities and stockpiles such as the woodchip stockpile operated by the Parks Department in Queens, to generate materials that can be used at other public or private construction sites.   

4.  The rules governing the operation of the exchanges are amended to exempt City-operated facilities from the requirement to submit a soil or other materials availability form to the Office (§43-1443). This section is also amended to expand OER’s ability to negotiate the terms of exchange for materials on behalf of City agencies if the agencies so desire (§43-1443 (d)).  These changes have been made to encourage City agencies to consider participation in the Clean Soil Bank and other materials exchanges. 

This § 1443(d) text was revised after the hearing to clarify that OER would participate in negotiation of a material exchange on an agency’s behalf only if the agency requested OER’s assistance. 

5. Projects seeking New York City Green Property Certification are no longer be required to make an application to OER to be considered for Green Property Certification. This change will make it easier for sites outside of the City Voluntary Cleanup Program and the State Brownfield Program to seek Green Property Certification (§43-1431).

6.  The Office is waiving the $1,000 enrollment fee that parties must pay to enroll sites in the Voluntary Cleanup Program for City capital construction projects (§43-1405(3)(E)).

7. Finally, the Office is amending the City’s Brownfield Incentive Grant rules to allow developers of residential buildings where 100% of the units will be affordable units to be eligible for a $50,000 cleanup grant. Currently such projects are eligible for a $35,000 grant (§43-1422(c)(2)).