The New York City Office of Environmental Remediation (OER) is a team of scientists and engineers who came together to design, build and operate municipal programs for the cleanup and redevelopment of brownfield sites. The OER programs are designed to streamline environmental remediation of contaminated properties so redevelopment can occur in a timely manner. One of these programs is the E-designation and Restrictive Environmental Review Program (E-designation).
During the past few years, New York City has rezoned historically industrial use only parcels of land to allow for residential development. Since the rezoning was approved after the development of Environmental Impact Statements (EIS) developers and property owners assumed that they could apply for building permits and proceed with their developments without additional environmental review.
What Is an E-Designation?
The E-designation program provides notice that a property may have potential hazardous materials contamination, high ambient noise levels, or air emission concerns. An E-designation is not a notice of a building violation.
Any property potentially being re-zoned is subject to an environmental review according to state and local laws. If it is determined that the development of the property or the use of the parcel changes in such a way that it would be adversely effected by noise, emissions, or hazardous material contamination, then the OER would place an a E-designation on the property so that any issues are addressed prior to any changes being made on the property.
Some examples of these potentially adverse conditions may include construction contaminants being disturbed and spread to adjacent sites or vapors being released from contaminated solvents embedded in soil or groundwater. Noise or air emission concerns can be factored when changing a commercial property located in an industrial area to residential housing. If nearby properties are still operating in a commercial capacity, constant trafficking and truck emissions will be concerns for future residents.
You can find out if your property has an E-designation or Restrictive Declarations by going to the OER website and reviewing Appendix C Table 1 - Environmental Requirements and Table 2 – Restrictive Declarations to determine if your property is listed by Block and Lot.
How Does This Affect My Property and What Do I Need To Do?
This designation prevents any new construction or change in land use to occur until the environmental requirements of the E-designation can be satisfied. If you are planning on changing your property (i.e. adding new buildings, enlarging an existing building, changing the way the property is used, etc.), you will not be able to obtain your building permit until the restrictions under the E-designation are satisfied.
Your first step should be to have a Phase I Environmental Site Assessment (Phase I ESA) conducted in accordance with the requirements of the E-1527 “Standard Practice for Environmental Site Assessments: Phase I Site Assessment process” developed by the American Society for the Testing of Materials (ASTM). A Phase I ESA will investigate all aspects of your property that could be potentially be a concern under your E designation. The assessment will entail a variety of tasks including onsite visual inspections, evaluation of property/ownership records, examination of historical photographs and maps, and file and title searches.
If the Department of Environmental Protection (DEP) determines that the results of your Phase I ESA show a strong likelihood of site contamination, you will have to conduct further, more intrusive, investigations and remedial activities. A Phase II Environmental Site Assessment’s primary function is to characterize the type and potential extent of the hazardous materials believed to be onsite. After submitting your Work Plan and Health & Safety Plan (HASP) to the DEP, testing of soil and groundwater, borings, and sampling activities will be gathered and detailed in a comprehensive report. A no further action notice will be given if the site is found to be clean and complaint but if contamination/adverse conditions are found at your, it will need to be remedied immediately.
It is important to note that in order to receive permits to begin construction on an E designation property, a Notice to Proceed must be received by the OER. All requirements must be satisfied for the property prior to receiving this.
Failure Doesn’t Mean the End – You Can Fix It!
You’ve conducted your investigations and you’ve determined that you need to come up with a solution to remediate before you can proceed with any development on your site.
If your site is contaminated, you have 3 basic remediation options-eliminating the contamination completely; reducing the levels to a safe and acceptable level; or controlling the source of contamination so that it has no adverse effects of the public or environment. Some common remediation tasks include removing leaking underground storage tanks; removing contaminated soil (then replacing top 2 feet with clean fill); capping of an area with asphalt pavement; installation of a vapor barrier wall; or a vapor collection or exhaust system.
Noise and air quality issues are much simpler to fix. For noise concerns, the main objective is to ensure that building occupants are not adversely effected by the noise from external sources (traffic, businesses, construction on adjacent sites) and those generated within the building itself (other residents, retail or industrial tenants, etc.). Window design, caulking standards, and following general wall and ceiling assembly standards should be used in order to meet noise transmission and impact standards.
Air quality refers to the amount of pollutants in the air that could adversely affect human health. If your property contains a source of pollution, steps will need to be taken to contain and clean the air before it is released into the environment. For residential properties, some restrictions could include relocating utility equipment, changing the type of fuel used, and installing adequate ventilation systems if natural ventilation (i.e. opening the windows) is not a viable option.
What Are The Next Steps?
Once the Phase I and Phase II ESAs are complete, it is recommended that they be submitted, along with the OER’s Project Submittal Cover Sheet, to the OER for review. The OER will assign a Case Number and Project Manager for the property. A pre-application meeting will be held at the OER’s lower Manhattan office where project development plans, timelines, and OER project requirements will be discussed. The OER will require the collection of additional data and indicate exactly where and what they expect.
There is a phased approach that typically follows the below outline:
- submit a remedial investigation Work Plan with proposed soil boring, groundwater sampling points, and soil gas sampling locations as required during the OER pre-application meeting;
- pending completion of the remedial investigation, submit a Remedial Investigation Report to the OER for review including all soil, groundwater, and/or gas soil data;
- either have a conference call or in person meeting with the OER to discuss the RIR and proposed remedial actions;
- submit individual Remedial Action Work Plans for Indoor Air/Noise Quality and Hazardous Materials, if applicable for OER review and approval; and
- once the OER apprives the Remedial Action Work Plan(s), a Notice to Proceed can be received for submittal to the Department of Buildings for construction permits.
No matter the reason for the placement of an e-designation on your property, it’s critical that you understand exactly what applies to your property and the implications that it can have when contemplating any renovations or making changes in property use. Finding the most cost effective route to compliance can be difficult and you may benefit from engaging a professional consultant who can provide expert advice.