Law Expands Options on Brownfields

The Act amends the NYC Administrative Code to include the New York City Local Brownfield Cleanup Law, which sets forth the eligibility criteria for entrance into the New York City Local Brownfield Cleanup Program. The LBCL provides authority to the OER to promulgate rules, using New York State standards, for the redevelopment of brownfields, to partner and enter into agreements with state and federal agencies concerning investigation and remediation of brownfields, to obtain formal delegation to oversee the remediation of brownfields, and to obtain formal recognition by those agencies of cleanups that successfully complete the LBCP. Further, the Act authorizes the OER to administer the E-Designation program, as successor to the New York City Department of Environmental Protection.

Upon successful completion of the LBCP, the OER will issue a Certificate of Completion to the enrollee that runs with the land and to subsequent developers or occupants. The Certificate will include (1) a finding that the enrollee has successfully completed the LBCP; (2) a statement that the City will not require any further investigatory or remedial action regarding the contamination except in certain circumstances; and (3) a recommendation that no other governmental entity take or require further action. Additionally, the Act directs the OER to implement a Clean Property Certification Program ("Certification Program"), which will be awarded to all properties that enroll and successfully complete the LBCP or NYS BCP. The Certification Program is intended provide a recognizable symbol for commitment to proper brownfields cleanup.

The Act also provides authorization for the City to reopen the investigation of a site due to continuing contamination, non-compliance with the local brownfield clean-up agreement, fraud, changes in environmental criterion or change in use of the site. The change in use criterion does not apply to a volunteer if the site is remediated for unrestricted use. Finally, the Certificate does not extend and cannot be transferred to a person responsible for the discharge of contaminants.

Robert Crespi is a partner in the environmental group of the law firm Wolff & Samson PC in West Orange, NJ and New York City, where he represents clients in transactions and redevelopment of contaminated properties. To contact the author, click here.

The views expressed in this article are those of the author and not Real Estate New York.