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New York City Local Brownfield Cleanup Program

Client Advisory

May 24, 2010

New York City’s Office of Environmental Remediation has finalized its regulations[1] creating a “Local Brownfield Cleanup Program” (“Program”). The Program offers owners of moderately contaminated sites the opportunity to voluntarily remediate properties that generally would not be covered by New York State’s existing regulatory schemes, including the State’s Brownfield Cleanup Program and Inactive Hazardous Waste Disposal Sites Act (“State Superfund”). The Program is likely to provide an efficient means of cleaning up eligible sites when formal government oversight is desirable or necessary.

Qualified local brownfield sites include those that (a) are impacted with contaminants other than just petroleum; (b) are not listed in the state registry of Inactive Hazardous Waste Disposal Sites (“State Superfund sites”); (c) are not listed on the federal National Priorities List (“Federal Superfund sites”); and (d) are not otherwise subject to federal, state and local enforcement related to site contamination. The Office of Environmental Remediation can also reject sites if it determines that “the public interest would not be served” by participation. 

Formal procedures will include (a) submission of an application with an explanation of qualifications for the Program; (b) preparation of a remedial investigation report, remedial action work plan, citizen participation plan and post-remediation report; (c) agreement to abide by any necessary institutional or engineering controls;[2] (d) exploration of alternative remedies that (presumably) involve more extensive clean up than the proposed remedy. Similar to the State’s Brownfield Cleanup Program, the City’s Program differentiates between responsible and voluntary parties. Parties that bear some direct responsibility for contamination (“participants”) may be required to investigate and remediate off-site migration of contamination, whereas truly voluntary parties (“volunteers”) will not.

Owners of seriously contaminated and undeveloped sites may still want to take advantage of the State’s Brownfield Cleanup Program because of its extensive state tax credits. The State’s Brownfield Cleanup Program also offers stronger liability protection than the City’s Program because such liability releases are specifically authorized by state statute.   But the City and State are reportedly working on an agreement to provide some recognition of the Program by the New York State Department of Environmental Conservation, which should honor the City’s liability releases.

The Program is also likely to fill the gap created by the disappearance of the State’s Voluntary Cleanup Program, which provided a formal remediation path for moderately contaminated sites such as those contaminated by historic fill. There may also be little risk to investigating the Program. The City’s Office of Environmental Remediation encourages pre-application meetings to vet eligibility. And the regulations, with few exceptions, allow parties to terminate participation at any time. 


Questions regarding this advisory should be addressed to Christopher Rizzo (212-238-8677, rizzo@clm.com ) or Christine Fazio (212-238-8754, fazio@clm.com).
Endnote

[1] The regulations create a new Chapter 14 to Title 43 of the Rules of the City of New York.

[2] Institutional controls include deed restrictions; engineering controls include pavement caps to prevent public exposure to contaminants that are not removed.



Carter Ledyard & Milburn LLP uses Client Advisories to inform clients and other interested parties of noteworthy issues, decisions and legislation which may affect them or their businesses. A Client Advisory does not constitute legal advice or an opinion. This document was not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein. © 2017 Carter Ledyard & Milburn LLP.
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