Some New Yorkers may forget, amidst the taxis, skyscrapers and concrete, but city-living is eco-living. Cities use land and resources very efficiently. New Yorkers crowd onto the subway and engage in carpooling en masse. Many buildings taking up merely an acre of land and house hundreds of people, thereby preventing urban sprawl and the destruction of green space.
The problem is that the City’s rich industrial history has contaminated a great deal of land and any developer that touches it may incur CERCLA (Comprehensive Environmental Response, Compensation, and Liability Act) liability. 42 U.S.C. § 9601. CERCLA, more commonly known as Superfund, imposes strict liability for clean up to, among others, current site owners. Liability became so great in some instances that owners abandoned their property altogether, leaving open, and many times seeping, sores throughout the City.
These sores, better known as brownfields, are defined under New York’s Environmental Conservation law as: “any real property, the development or reuse of which may be complicated by the presence or potential presence of a contaminant.” N.Y. Envtl. Conserv. Law § 27-1405-2. To encourage the development of brownfields, the New York State Legislature enacted the Brownfield Cleanup Program Act in 2003, and authorized the Department of Environmental Conservation (DEC) to administer the program. The Program limits liability for participants in addition to providing tax credits. The Program, however, can be cumbersome, the tax credits accumulate faster than the State budget can handle and the prerequisites for entering the program are very stringent.
By 2030, New York City expects to add nearly one million people and according to Mayor Blumberg’s sustainability plan, PlaNYC, the City may currently have 7600 acres of brownfields. Most of New York City’s brownfields, however, do not qualify for the State Program. The City’s brownfields generally have historic fill, petroleum spills, e-designations (notice of the presence of an environmental requirement pertaining to potentially hazardous materials, contamination, or noise or air quality impacts on a particular tax lot) and other forms of moderate contamination that do not rise to the level necessary to enroll in the State Program.
Land values are so high in New York City, however, that tax incentives may not be necessary to induce developers. Release from liability under the State Superfund Program may suffice. To that end, the City Council passed the New York City Brownfield and Community Revitalization Act (NYC BCP), which created the Mayor’s Office of Environmental Remediation (OER) in 2009. In October 2009, the OER adopted the Local Brownfield Cleanup Program Requirements. NEW YORK, N.Y., R.C.N.Y., tit. 43, ch. 14 § 43.
NYC BCP is open to all real property in the City except for those already enrolled in the State Program, those on the DEC’s Registry of Inactive Hazardous Waste Disposal Sites and those subject to various other state and federal lists and enforcement. OER may also reject an application upon a determination that the public interest would not be served. Applicants must schedule a pre-application meeting with OER and bring with them a pre-application worksheet summarizing development plans and any known environmental information for the site. After discussing the suitability of the site for the NYC BCP, the OER may issue a pre-enrollment letter of intent to work with the developer. The applicant must then prepare a Local Brownfield Clean Up Agreement, Remedial Investigation Report, Remedial Action Plan, a Citizen Participation Plan, a proposed document repository, a draft fact sheet and an application. The Clean Up Agreement describes the site boundaries and provides the City with access to the site along with any environmental reports or tests and includes a one thousand dollar enrollment fee. The fee may be waived in certain circumstances, such as when the site is used for affordable housing or community buildings. A Remedial Investigation Report defines the extent and type of contamination and is used to select an appropriate remedy. The Report must identify all sources of potential contamination based on a review of past use, define the contamination vertically and laterally, contain a human health exposure assessment, define the contaminants effect on surrounding media and contain sufficient data to support the Reports conclusions. The Remedial Action Work Plan (RAWP) describes all actions necessary to render the site safe for the environment, public health and its intended use. The Plan is subject to a 30-day public comment period and must be approved by OER. The Plan may also include a Sustainability Statement, however, it is not required. The Citizen Participant Plan includes providing a public document repository with all site documents as well as the creation of a Site Contact List, which includes all owners and occupants of property adjacent to the site, administrators of nearby schools, hospitals, day care centers, local community boards and elected officials. Individuals can also request to be place on the List. A fact sheet is provided to everyone on the list before the RAWP 30 day comment period, at the beginning of remedial action and at the completion of remedial action.
If OER approves the application the enrollee remains responsible for obtaining all necessary permits. An NYC Green Team, however, has been created within OER to assist enrollees in obtaining all necessary permits. When remedial action is complete the enrollee must submit a Remedial Action Report. This Report will include any engineering controls and institutional controls used to protect the area surrounding the site from residual contamination along with the mechanisms that will be implemented to monitor, maintain and report on these controls. The Report will also include a Site Management Plan, which will provide for periodic inspections to protect the public and environment. The enrollee must also file an OER-approved Declaration of Covenants and Restrictions with the local recording office, which will run with the property and allow OER access to the site for inspection purposes. At this time, the OER will issue a Notice of Completion that acknowledges that the enrollee has no further environmental liability with the City and is assignable to the enrollee’s successors and assigns which take title to the site.
The issue then, is whether there will be any State liability. OER is working closely with the DEC to ensure that compliance with NYC BCP will eliminate all brownfield liability for developers. A Memorandum of Agreement between DEC and OER dated August 5, 2010, states that the DEC “[g]enerally…agrees that a site is of no further interest and it does not plan or anticipate taking administrative or judicial enforcement action seeking to require a removal or remedial action under CERCLA… or the ECL” while a site is in compliance with NYC BCP. The DEC, however, goes on to state that they are not granting liability releases under BCP and they can take action where they deem appropriate. The City is the first in the nation to partner with the State on a regulatory framework to cleanup brownfields and the first site is already enrolled; the MJM Construction is slated to open the Pelham Parkway Towers, an affordable housing complex, in the Bronx in June 2011.
