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Proposed Rules: Closed to Comments

Agency:
Comment By: 
Monday, April 24, 2017
Proposed Rules Content: 

 

 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)(5) authorizes its Director to administer financial incentives offered through various programs to promote the identification, investigation, remediation, and redevelopment of brownfields. Charter § 15(e)(15) authorizes the Director to administer the hazardous materials (E) designation program (described below) and § 15(e)(18) authorizes the Director to promulgate rules to implement the Office’s programs.

 

OER is proposing to amend the City’s environmental remediation rules in the following ways: 

 

First, Subchapter 6 of Chapter 14 of Title 43 would be amended to revise its title and to establish, through a new section, both a process for applicants to request modification of noise attenuation requirements in a special mixed use district, and also a fee for the administrative costs of reviewing these requests (§ 43-1461).

 

Second, the rules relating to the Brownfield Incentive Grant rule (“BIG rule”) would be amended to provide additional grants to City-supported affordable or supportive housing developments, as well as to manufacturing and industrial projects supported by the New York City Economic Development Corporation (“EDC”), by:

 

  • Reimbursing a supported project for the cost of the site investigation if the project is denied entry into the State brownfield program and is enrolled instead in the City Voluntary Cleanup Program (§ 43-1422(c)(11));
  • Authorizing the Office to exceed the City pre-enrollment grant award cap of $125,000 when an eligible project incurs costs to enroll in the State brownfield program that exceed $125,000 (§ 43-1422(c)(11)); and
  • Reimbursing projects eligible for a City pre-enrollment grant for 100% of their eligible costs, rather than requiring such projects to pay for 25% of the eligible services (§ 43-1416(h)).

In addition, the BIG rule would be amended in the following other ways:

● To allow qualified vendors under contract with EDC to provide eligible services and activities under (a) pre-enrollment and enrollment grants; (b) brownfield opportunity area local match grants; and (c) technical assistance and local match grants used by community based organizations to conduct place-based community brownfield planning (§ 43-1422(c)(1), (3) and (4)).

● To increase the reimbursement to development projects for the costs of hiring a consultant to advise on whether to enroll a project with the State brownfield program. Under the proposed rule, the City brownfield grant program would reimburse development projects $1,000 (a new award) and preferred community development projects $1,333 (currently $500) for these services.  The list of eligible services that can be reimbursed by brownfield green job training grants would also be expanded (§ 43-1419(a)(5) and Schedule B).

Third, the City Voluntary Cleanup Program rule would be amended by striking §43-1410 (f) to make it consistent with recently adopted State law establishing a statutory exemption for projects enrolled in the City’s Voluntary Cleanup Program from the State hazardous waste program fee and the special assessment on hazardous waste. Unless exempted, parties that remove hazardous waste from a property in New York State are required to pay the State a hazardous waste program fee and a special assessment for each ton of hazardous waste generated.

 

Finally, the proposed amendments include several technical drafting changes in the Program Rule to ensure consistency throughout this regulatory scheme (§§ 43-1406(a) and 43-1410).


“Shall” and “must” denote mandatory requirements and may be used interchangeably in the rules of this Office, unless otherwise specified or unless the context clearly indicates otherwise.

Subject: 

Omnibus Amendments to City’s Brownfield Program Rules

Location: 
Central Park Room
100 Gold Street (2nd Floor)
New York, NY 10038
Download Copy of Proposed Rule (.pdf): 

Adopted Rules: Closed to Comments

Adopted Rules Content: 

 

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)). As a result of comments received after publication of the rule, text has been added to § 43-1422(c)(12) indicating that the City will also be making $50,000 cleanup grants available to City-supported affordable housing or industrial projects that enroll in the City Voluntary Cleanup Program.

 

 

● 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. As the result of comments received after publication of the rule, a new eligible service – “peer advisory services” has been added to the Technical Assistance Grant portion of Schedule B.  “Peer advisory services” consist of professional advice provided to a community based organization on how it can best engage private landowners to advance local economic development. Also with respect to Schedule B, footnote d has been revised to include “community based organizations” in the description of the non-profit status of entities involved with preferred community development projects.

 

Effective Date: 
Thu, 01/28/2016

Adopted Rules: Closed to Comments

Adopted Rules Content: 

 

STATEMENT OF BASIS AND PURPOSE

The Office of Environmental Remediation (“Office” or “OER”) oversees the New York City Brownfield Incentive Grant ("BIG") Program. Through the BIG program, OER awards grants to support and advance brownfield projects across the city by making grants available to projects from the earliest stages of project development through project remediation.

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. Section 15(e)(6) authorizes the Director to promote community participation in these activities. Section 15(e)(18) authorizes the Director to promulgate rules in connection with such programs.

 

Since 2011, OER has provided over one hundred Brownfield Incentive Grants to for-profit and non-profit developers undertaking cleanup and redevelopment of sites in the City voluntary cleanup program and to community based organizations seeking to apply for or advance their State-funded Brownfield Opportunity Area ("BOA") planning in neighborhoods across the city. Because of the rapid growth in the participation of developers in the City voluntary cleanup program, the entire original fund established to fund the BIG program has been earmarked. OER has sought and obtained new funding from the City for the BIG program to partially replenish the original fund.

The rules continue the operation of the BIG program with reduced appropriations. In addition, OER has made additional changes to the BIG program to increase the program’s value for developers remediating brownfields across the city.  

 

The amendments:

·         create new Brownfield Incentive Grants;

·         make the first significant revisions to the list of eligible services and activities that are eligible for reimbursement with City brownfield grant funds;

·         reduce the size of several City cleanup grants for future projects to reflect reduced funding;

·         increase the amount of funding for BOA for community-based organizations;

·         for the first time, restrict the city-wide reach of the BIG  program;

·         eliminate the environmental insurance grant and replace it with a new eligible service;

·         consolidate certain technical services; and

·         boost reimbursement for preparation of a site management plan

 

New Brownfield Incentive Grants

 

The proposed amendments create four new Brownfield Incentive Grants to encourage the redevelopment of brownfields:

 

1)    A Climate Change Resilience Bonus Cleanup Grant of up to $5,000 to accelerate cleanup of properties in coastal flood zones;

2)    A Brownfield Green Job Training Bonus Cleanup Grant of up to $6,000 to encourage developers to hire participants in job training programs so they can acquire work experience at sites in the City brownfield cleanup program;

3)    A City Pre-enrollment Grant of up $100,000 for site investigations and remedial planning activities at publicly owned sites and sites with environmental tax liens; and

4)    A Green Property Certification Bonus Cleanup Grant of up to $1,000 to pay for a New York City green property certification plaque for sites that complete cleanups in the City voluntary cleanup program.

 

Addition of New Eligible Services 

The amendments make significant revisions to the list of services and activities that are eligible for reimbursement with City brownfield grant funds. These changes are referenced in § 43-1419 and set forth in Schedule B. The new services include:

·         the installation of soil vapor management systems;

·         the cost of field oversight of remedial activities by qualified environmental professionals;

·         the production of a remedial investigation report and a remedial action report,

·         the reimbursement for an attorney’s due diligence on a property prior to its enrollment in the City voluntary cleanup program, and

·         reimbursement for environmental insurance 

 

Reduction in Size of Cleanup Grants

The  amendments  reduce the size of several City cleanup grants for future projects because of the reduced City appropriations:

·         The reductions decrease the maximum grant awards by more than half for:

o   the standard cleanup grant;

o   the cleanup grant for preferred community development projects; and

o   the track-one bonus cleanup grant.

·         The E-designation and restrictive declaration remediation grants will be cut in half.

Increase in Funding of BOA Grants          

            The amendments  increase from $25,000 to $50,000 the total amount of City funds that community-based organizations with BOA contracts could receive in the form of Local Match grants. These changes are set forth in § 43-1422 as well as Schedule A.


            Restrictions on Size and Location of Eligible Sites

For the first time, the proposed amendments will restrict the city-wide reach of the BIG grant program. Projects larger than 100,000 square feet and projects at or south of 96th Street in Manhattan will be ineligible for City BIG funds if they had not enrolled in the City voluntary cleanup program by April 2013.

           
            Amendments to Insurance Grant  

            The proposed amendments eliminate the environmental insurance grant and replace it with a new eligible service that will reimburse parties for the premiums they paid for environmental insurance policies for projects that are enrolled in the City voluntary cleanup program.

 

            Consolidation of Technical Services        

            Additional rule amendments consolidate certain technical services, including:

·         reimbursement for the preparation of a remedial investigation document, a new service, which will cover all remediation investigation activities and preparation of a remedial action work plan;

·         reimbursement for the preparation of a remedial action report, a new service, which will cover all remedial action oversight activities and preparation of a remedial action report;

·         simplified reimbursement for laboratory analysis of environmental samples collected in the field by the elimination of separate payments for analysis of individual metals, volatile and semi-volatile compounds, and replacing these with reimbursement for analysis of groups of similar compounds known as Target Analyte List metals, Target Compound List SVOCs, and Target Compound List VOCs.

 

Reimbursement for Site Management Plans

The proposed amendments will boost reimbursement for preparation of a site management plan from $2,500 to $7,500.

 

 

 “Shall” and “must” denote mandatory requirements and may be used interchangeably in the rules of this office, unless otherwise specified or unless the context clearly indicates otherwise.

 

New text is underlined; deleted material is in [brackets].

 

 

Effective Date: 
Wed, 03/19/2014

Proposed Rules: Closed to Comments

Agency:
Comment By: 
Thursday, March 6, 2014
Proposed Rules Content: 

STATEMENT OF BASIS AND PURPOSE

The Office of Environmental Remediation (“Office” or “OER”) oversees the New York City Brownfield Incentive Grant ("BIG") Program. Through the BIG program, OER awards grants to support and advance brownfield projects across the city by making grants available to projects from the earliest stages of project development through project remediation.

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. Section 15(e)(6) authorizes the Director to promote community participation in these activities. Section 15(e)(18) authorizes the Director to promulgate rules in connection with such programs.

 

Since 2011, OER has provided over one hundred Brownfield Incentive Grants to for-profit and non-profit developers undertaking cleanup and redevelopment of sites in the City voluntary cleanup program and to community based organizations seeking to apply for or advance their State-funded Brownfield Opportunity Area ("BOA") planning in neighborhoods across the city. Because of the rapid growth in the participation of developers in the City voluntary cleanup program, the entire original fund established to fund the BIG program has been earmarked. OER has sought and obtained new funding from the City for the BIG program to partially replenish the original fund.

The proposed rules would enable operation of the BIG program with reduced appropriations. In addition, OER is proposing additional changes to the BIG program to increase the program’s value for developers remediating brownfields across the city.  

 

The proposed amendments:

·         create new Brownfield Incentive Grants;

·         make the first significant revisions to the list of eligible services and activities that are eligible for reimbursement with City brownfield grant funds;

·         reduce the size of several City cleanup grants for future projects to reflect reduced funding;

·         increase the amount of funding for BOA for community-based organizations;

·         for the first time, restrict the city-wide reach of the BIG  program;

·         eliminate the environmental insurance grant and replace it with a new eligible service;

·         consolidate certain technical services; and

·         boost reimbursement for preparation of a site management plan

 

New Brownfield Incentive Grants

 

The proposed amendments would create four new Brownfield Incentive Grants to encourage the redevelopment of brownfields:

 

1)    A Climate Change Resilience Bonus Cleanup Grant of up to $5,000 to accelerate cleanup of properties in coastal flood zones;

2)    A Brownfield Green Job Training Bonus Cleanup Grant of up to $6,000 to encourage developers to hire participants in job training programs so they can acquire work experience at sites in the City brownfield cleanup program;

3)    A City Pre-enrollment Grant of up $100,000 for site investigations and remedial planning activities at publicly owned sites and sites with environmental tax liens; and

4)    A Green Property Certification Bonus Cleanup Grant of up to $1,000 to pay for a New York City green property certification plaque for sites that complete cleanups in the City voluntary cleanup program.

 

Addition of New Eligible Services 

The proposed amendments would make significant revisions to the list of services and activities that are eligible for reimbursement with City brownfield grant funds. These changes are referenced in § 43-1419 and set forth in Schedule B. The new services include:

·         the installation of soil vapor management systems;

·         the cost of field oversight of remedial activities by qualified environmental professionals;

·         the production of a remedial investigation report and a remedial action report,

·         the reimbursement for an attorney’s due diligence on a property prior to its enrollment in the City voluntary cleanup program, and

·         reimbursement for environmental insurance 

Reduction in Size of Cleanup Grants

The proposed amendments would reduce the size of several City cleanup grants for future projects because of the reduced City appropriations:

·         The proposed reductions would decrease the maximum grant awards by more than half for:

o   the standard cleanup grant;

o   the cleanup grant for preferred community development projects; and

o   the track-one bonus cleanup grant.

·         The E-designation and restrictive declaration remediation grants would be cut in half.

Increase in Funding of BOA Grants          

            The proposed amendments would increase from $25,000 to $50,000 the total amount of City funds that community-based organizations with BOA contracts could receive in the form of Local Match grants. These changes are set forth in § 43-1422 as well as Schedule A.


            Restrictions on Size and Location of Eligible Sites

For the first time, the proposed amendments would restrict the city-wide reach of the BIG grant program. Projects larger than 100,000 square feet and projects at or south of 96th Street in Manhattan would be ineligible for City BIG funds if they had not enrolled in the City voluntary cleanup program by April 2013.

           
            Amendments to Insurance Grant  

            The proposed amendments would eliminate the environmental insurance grant and replace it with a new eligible service that would reimburse parties for the premiums they paid for environmental insurance policies for projects that are enrolled in the City voluntary cleanup program.

 

            Consolidation of Technical Services        

            Additional rule amendments would consolidate certain technical services, including:

·         reimbursement for the preparation of a remedial investigation document, a new service, which would cover all remediation investigation activities and preparation of a remedial action work plan;

·         reimbursement for the preparation of a remedial action report, a new service, which would cover all remedial action oversight activities and preparation of a remedial action report;

·         simplified reimbursement for laboratory analysis of environmental samples collected in the field by the elimination of separate payments for analysis of individual metals, volatile and semi-volatile compounds, and replacing these with reimbursement for analysis of groups of similar compounds known as Target Analyte List metals, Target Compound List SVOCs, and Target Compound List VOCs.

 

Reimbursement for Site Management Plans

The proposed amendments would boost reimbursement for preparation of a site management plan from $2,500 to $7,500.

 

Subject: 

Opportunity to comment on the Office of Environmental Remediation’s proposed amendments to the New York City Brownfield Incentive Grant Program rules

Location: 
Central Park Room
100 Gold Street, 2nd floor
New York, NY 10038
Contact: 

Dr. Daniel C. Walsh
Director of Environmental Remediation
253 Broadway, 14th floor
New York, NY 10007