The New York City Brownfield Cleanup Program (the “Brownfield Cleanup Program”) was launched in August 2010 under the jurisdiction of the Mayor’s Office of Environmental Remediation (“OER”). Historically, brownfield remediation throughout New York State, including cleanup of dirty sites in the City, has been handled at the state level by the New York State Department of Environmental Conservation (“DEC”). The innovative Brownfield Cleanup Program brings oversight of cleanup to the local level and provides a promising vehicle for wide-reaching remediation of brownfield sites in NYC. In addition, the Brownfield Cleanup Program offers liability protection for sites that are remediated, and OER’s new Brownfield Incentive Grant program has allocated $10 Million to reduce the financial burden of cleaning up NYC’s brownfields.

Background

Brownfields are properties that contain a hazardous substance, pollutant, or contaminant that complicates the redevelopment or reuse of the property. The remediation, or clean up, of brownfields reduces pressure to develop undeveloped land, protects the environment, and often serves to revitalize the surrounding community. Rehabilitation of a brownfield site receives one point under the current LEED standards for New Construction and Major Renovations rating system (Credit 3 under the Sustainable Sites category).

An entire chapter of PlaNYC—Mayor Bloomberg’s sustainability plan for NYC—is devoted to brownfield remediation. As a result, the Mayor’s Office of Environmental Remediation (“OER”) was founded in 2008 to streamline the brownfield cleanup process with an eye toward facilitating economic development. To this end, OER has made a commitment to speeding the delivery of projects to completion, simplifying the certification process, and increasing predictability and flexibility throughout the process.

The City Council passed Local Law 27 in 2009 (known as the “New York City Brownfield and Community Revitalization Act”), which amended the New York City Charter and the Administrative Code of New York to develop a comprehensive program under OER for the remediation and reuse of brownfields in NYC. The Act gives OER the authority to oversee the remediation of certain brownfield sites in the City and to issue notices of completion and certification, which serve as a liability release to the satisfaction of lenders, as described further below.

The Brownfield Cleanup Program was launched on August 5, 2010, after the City and DEC signed a Memorandum of Agreement clarifying the respective roles of OER and DEC.

Eligibility and Enrollment in the NYC Brownfield Cleanup Brogram (NYC BCP)

The New York City Brownfield and Community Revitalization Act gives OER the authority to oversee the remediation of brownfield sites with light to moderate levels of contamination that do not pose a significant threat to the community. Such sites include those that have been named “e-designation sites” in connection with rezonings, historic fill sites and sites with petroleum spills. OER has launched a new Searchable Property Environmental E-Database (SPEED) showing all of these contaminated sites in the City, which can be launched at www.nyc.gov/speed. DEC will continue to have jurisdiction over sites that are highly contaminated and require more complicated cleanups.

A significant innovation of the Brownfield Cleanup Program is delayed entry into the program until the owner has had the opportunity to investigate the site and identify the necessary remediation for the proposed use for the site. The State DEC program does not offer a comparable early commitment of government resources prior to execution of a formal agreement to enroll in the program. OER has also made a commitment to use its best efforts to review submissions within 30 days. By working with parties prior to enrollment in the program and by expediting review of the program’s submissions, OER anticipates that approval of remedial action work programs under the Brownfield Cleanup Program will take approximately 2-3 months to complete.

Program Benefits: Liability Protection and Incentive Grants

The Brownfield Cleanup Program is, at heart, a liability protection program. Upon satisfaction of the program requirements, OER provides the property owner with a Notice of Completion and a Green Property Certification, which signify that the property has been investigated and, if necessary, has received remedial actions under OER supervision. The City’s certification, which acknowledges that the cleanup of the property for its intended use is fully protective of public health and the environment, provides liability protection from City and State cleanup laws. The certification is geared toward satisfying the concerns of lenders, which will often restrict the issuance of loans in the absence of such a certification.

In addition, the Brownfield Incentive Grant (“BIG”) Program, launched in June 2010, offers grants ranging from $60,000 for certified projects up to $100,000 for Preferred Community Development Projects. Such community development projects are those that provide specific benefits or amenities to local communities, such as affordable housing developments, brownfield redevelopment projects within Brownfield Opportunity Area (BOA) boundaries that are consistent with BOA plans; and community facility development projects that will provide amenities such as open space or community health care facilities to local communities.

The BIG Program has $10 Million available to disburse over the next two years, on a first come first serve basis. The grant money can be used to reimburse the purchase of certain eligible services and materials, including the following: preparation of an environmental assessment statement, zoning analysis or title search; purchase of title insurance or environmental insurance; investigation and sampling of a site; and preparation of remedial action work plans. In addition, a $5,000 grant is available for the clean up of an e-designation site containing hazardous materials and a $10,000 pre-development grant and $5,000 consulting grant are available for not-for-profit developers or economic development agencies.

Several Preferred Community Development Projects have already been awarded money through the BIG program. On November 5, 2010, OER issued a total of $76,865 in grants through the BIG Program to the following four community brownfield planning groups to assist in furthering the identification and revitalization of local brownfields: the Bronx Council for Environmental Quality, for the Harlem River Brownfield Opportunity Area (BOA) in the Bronx; Harlem Congregations for Community Improvement, Inc., for the Under the Viaduct BOA in Manhattan; Northfield Community Local Development Corporation, for the Port Richmond BOA in Staten Island; and South Bronx Overall Economic Development Corporation, for the Port Morris BOA and the Eastchester BOA in the Bronx. (The BOA Program is a grant program operated by the NYS Department of State; the BIG Program grants were provided to these community planning groups to satisfy the local match required by the BOA Program.)

This post is based on a presentation made to the Land Use, Planning and Zoning Committee of the Association of the New York City Bar on October 27, 2010 by OER General Counsel Mark McIntyre, and on additional information available at OER’s website, accessible at: http://www.nyc.gov/html/oer/html/home/home.shtml.