New York City Council
Passes Local Brownfields Bill

By Jeffrey T. Yick, Esq.

On April 22, 2009, the New York City Council unanimously approved a local law relating to the remediation and reuse of brownfields known as the New York City Brownfield and Community Revitalization Act (NYCBCRA).¹ The NYCBCRA creates an Office of Environmental Remediation (OER) in order to advance the redevelopment of the City’s brownfield sites in support of the City’s economic development. The NYCBCRA also amends the Administrative Code for the City of New York to add the New York City Local Brownfield Cleanup Law (NYCLBCL) which provides the OER with the authority to promulgate rules for the redevelopment of City brownfields and gives the OER regulatory oversight of such redevelopment.

In furthering the redevelopment of local brownfield sites, the OER is charged with developing and administering financial and other incentive programs for public and private entities redeveloping local brownfields. The OER is authorized to use City funds and also apply for state and federal grants to support City brownfield projects. The OER will promote community participation and assistance in the redevelopment of brownfields by educating and training community groups, developers, and property owners about brownfields and acting as an intermediary between City agencies, developers, and environmental experts.

Under the NYCLBCL, the OER has the authority to promulgate rules for the Local Brownfield Cleanup Program. Initially, the OER will establish a form application for those that wish to participate in the Local Brownfield Cleanup Program and a review process to determine whether a site is eligible. In order to be eligible under the NYCBCRA, the site must meet the definition of a “local brownfield site,” which is defined as any real property in the City, with certain exceptions, where redevelopment may be complicated by the presence of “light to moderate levels” of contamination. The term “light to moderate” lowers the threshold for being classified as a brownfield in the City where such a site would not otherwise be subject to brownfield regulations under state or federal law. A local brownfield site also includes real property where state or federal law requires investigation or remediation to be supervised by a state or federal agency, but where the state or federal agency has expressly authorized that the property may be investigated and remediated under the City’s supervision or in accordance with a mutually agreed-upon form of supervision. The OER, however, must reject an application if there is a pending action or proceeding relating to the contamination of the site or if there is an order against the applicant relating to the contamination of the local brownfield site. Finally, the OER may reject an application if it determines that the public interest would not be served by accepting the application.

An applicant that is found eligible will enter into a local brownfield cleanup agreement wherein the enrollee or accepted applicant will agree to hold the City harmless from any claims arising out of the agreement. The OER will then have general oversight of the redevelopment by prescribing requirements for investigation reports, remedial action work plans, mechanisms for submitting such reports and plans, and procedures to ensure that the remedial actions are protective of public health and the environment and consistent with the intended use of the local brownfield site. The standards for review of these reports and plans will be based on the state brownfield cleanup program.

Once a local brownfield site has been successfully redeveloped through the Local Brownfield Cleanup Program or another equivalent program, the OER will issue a Clean Property Certification. Through this certification, the OER is attempting to achieve the same kind of recognizable symbol for brownfields that LEED has done for green buildings. The OER will issue a Certificate of Completion certifying that the enrollee has successfully completed the Local Brownfield Cleanup Program and that the City shall not take or require any further investigatory or remedial action against the site, the enrollee, or his/her successors. The OER will also recommend that no other governmental entity take or require any investigatory or remedial action in connection with the site, the enrollee, or his/her successors. While not legally required to do so, the OER will seek to enter into agreements with federal and state agencies that formally recognize cleanups for which the Certificate of Completion has been issued in an effort to obtain stipulations from such agencies that they will not take any action requiring investigation or remediation against the site.

In sum, the NYCBCRA through the OER has created a one-stop shop for brownfield cleanup, enabling landowners and developers to achieve cleanup that is both thorough and timely.



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MAY 2009