Section 24-901
§ 24-901 Short Title. This chapter shall be known and may be cited as
the "New York city local brownfield cleanup law".
Section 24-902
§ 24-902 Definitions. For the purposes of this chapter the following
terms shall mean:
"Applicant" shall mean a person who has submitted a request to
participate in the local brownfield cleanup program but is not yet an
enrollee.
"Certificate of completion" shall mean a written certificate that is
issued by the office to an enrollee who has successfully investigated
and remediated a local brownfield site to the satisfaction of the
office.
"Change of use" shall mean the transfer of title to all or part of a
local brownfield site, change in management of a local brownfield site,
the erection of any structure on the site, the creation of a park or
other public or private recreational facility on the site, or any
activity that is likely to disrupt or expose contamination or to
increase direct human exposure to contamination; or any other conduct
that will or may tend to significantly interfere with an ongoing or
completed remedial program at such site and the continued ability to
implement the engineering and institutional controls associated with
such site.
"Community based organization" shall mean a community based
organization as defined in section 970-r of the general municipal law.
"Contaminant" shall mean hazardous waste and/or petroleum.
"Contamination" or "contaminated" shall mean the presence of a
contaminant in any environmental media, including soil, surface water,
groundwater, air, or indoor air.
"Declaration of covenants and restrictions" shall mean controls on the
use of a site that are listed on the deed and that seek to prevent
potential exposure to any residual contamination remaining at the site.
"Delegated brownfield site" shall mean any real property for which
state or federal law requires the investigation or remediation, or a
portion of an investigation or remediation, to be supervised and/or
approved by a state and/or federal agency, but where such state and/or
federal agency has expressly authorized in writing that such real
property may be investigated and remediated under the city's supervision
or according to a mutually agreed-upon form of supervised oversight,
subject to any and all appropriate restrictions as may be required by
law or agreed to by the parties.
"Director" shall mean the director of the office of environmental
remediation.
"Enrollee" shall mean an applicant who has been accepted into the
local brownfield cleanup program and has signed a local brownfield
cleanup agreement.
"Hazardous waste" shall mean a hazardous waste as defined in section
27-1301 of the environmental conservation law.
"Historic fill material" shall mean non-indigenous material, deposited
or disposed of to raise the topographic elevation of real property,
which material may have been contaminated prior to emplacement, and is
in no way connected with the subsequent operations at the location of
the emplacement and which includes, without limitation, construction
debris, dredge spoils, incinerator residue, demolition debris, coal ash,
fly ash, and non-hazardous waste. "Historic fill material" does not
include any material which is chemical production waste or waste from
processing of metal or mineral ores, residues, slag or tailings. In
addition, historic fill material does not include a municipal solid
waste site built after nineteen hundred sixty two.
"Light to moderate levels of contamination" shall mean detectable
levels of contamination, the presence of which does not require an
applicant or enrollee to conduct any mandatory, governmental-supervised
investigation or remediation of the contamination under any state or
federal law.
"Local brownfield site" or "site" shall mean any real property within
the city, the redevelopment or reuse of which may be complicated by the
presence or potential presence of light to moderate levels of
contamination, or any real property that meets the definition of a
delegated brownfield site, including, but not limited to, real property
containing historic fill material and real property rejected from state
programs on grounds that the environmental contamination is not
sufficient to warrant state involvement. "Local brownfield site" or
"site" shall not include real property: (1) containing discharges of
petroleum, except as authorized by the state department of environmental
conservation upon agreement with the office or by state law, (2) at the
time of application to this program and pursuant to section 27-1305 of
the environmental conservation law, listed in the state registry of
inactive hazardous waste disposal sites and classified as either (i)
causing or presenting an imminent danger of causing irreversible or
irreparable damage to the public health or environment--immediate action
required, or (ii) significant threat to the public health or
environment--action required; (3) listed on the national priorities list
pursuant to 42 U.S.C. section 9605; (4) subject to an enforcement action
under title seven or nine of article twenty-seven of the environmental
conservation law, except a treatment, storage or disposal facility
subject to a permit; provided, that nothing herein contained shall be
deemed to exclude from the scope of the term "local brownfield site" a
hazardous waste treatment, storage or disposal facility having interim
status according to regulations promulgated by the state department of
environmental conservation; (5) subject to an order for cleanup pursuant
to article twelve of the navigation law or pursuant to title ten of
article seventeen of the environmental conservation law except such
property shall not be deemed ineligible if it is subject to a
stipulation agreement; or (6) subject to any other on-going city, state
or federal environmental enforcement action related to the contamination
which is at or emanating from the real property.
"Office" shall mean the office of environmental remediation.
"Participant" shall mean an enrollee who either: (1) was the owner of
the local brownfield site at the time of disposal or discharge of
contaminants, or (2) is otherwise a person responsible according to
applicable principles of statutory or common law liability, unless such
person's liability arises solely as a result of such person's ownership
or operation of or involvement with the site subsequent to the disposal
or discharge of contaminants.
"Petroleum" shall mean oil or petroleum of any kind and in any form
including, but not limited to, oil, petroleum, fuel oil, oil sludge, oil
refuse, oil mixed with other wastes and crude oils, gasoline and
kerosene.
"Remedial action work plan" shall mean a written document providing
for the development and implementation of a remedial program for
contamination within the boundaries of the local brownfield site;
provided, however, that a participant shall also be required to provide
in the remedial action work plan for the development and implementation
of a remedial program for contamination that has emanated from the local
brownfield site.
"Remedial investigation report" shall mean a report that fully
characterizes the nature and extent of contamination at and/or emanating
from a brownfield site.
"Site management" shall mean the management of physical barriers and
methods and non-physical means to limit human and environmental exposure
to contamination at and/or emanating from a site, as well as the
implementation of any necessary monitoring, reporting, certification
and/or operation and maintenance of a remedy, after the issuance of a
certificate of completion.
"Site management plan" shall mean a written document providing for
site management.
"Volunteer" shall mean an enrollee other than a participant, including
without limitation a person whose liability arises solely as a result of
such person's ownership or operation of or involvement with the local
brownfield site subsequent to the disposal or discharge of contaminants,
provided, however, that such person exercises appropriate care with
respect to contamination found at the site by taking reasonable steps
to: (1) stop any continuing release; (2) prevent any threatened future
release; and (3) prevent or limit human, environmental, or natural
resource exposure to any previously released contamination.
Section 24-903
§ 24-903 Rules for the Local Brownfield Cleanup Program. The director
shall develop and administer a local brownfield cleanup program and
shall promulgate rules to effectuate the provisions of this chapter
including, but not limited to, rules:
(a) Prescribing the form for an application to participate in the
local brownfield cleanup program and establishing an application review
process to ensure that only eligible local brownfield sites, as provided
in section 24-904 of this chapter, are accepted into the local
brownfield cleanup program.
(b) Prescribing a local brownfield cleanup agreement, including a
requirement that the enrollee pay for costs incurred by the city and an
indemnification provision holding the city harmless from any claim,
suit, action, and cost arising out of or resulting from the fulfillment
or attempted fulfillment of the agreement.
(c) Prescribing requirements for remedial investigation reports,
remedial action work plans, and such other reports and work plans as the
office shall require, and providing mechanisms for the preparation,
submission, review, approval, modification, and rejection of such
reports and work plans.
(d) Providing adequate procedures to ensure that remedial action work
plans and remedial actions are protective of public health and the
environment, and consistent with the current, intended or reasonably
anticipated residential, commercial, industrial or other end use of the
local brownfield site. Cleanup standards and remedial selection criteria
shall be consistent with standards and criteria applicable to the state
brownfield cleanup program, including all applicable guidance documents.
(e) Prescribing procedures for citizen participation.
(f) Providing for access by the office or any person so authorized by
the office (1) to any real property that has either submitted a request
to participate in the local brownfield cleanup program, is enrolled in
the local brownfield cleanup program, or has been issued a certificate
of completion, for the purpose of ensuring that any applicant, enrollee,
or recipient of a certificate of completion complies with the provisions
of this chapter or rules promulgated pursuant thereto, including, but
not limited to, providing access for the purpose of inspecting and
taking samples of contaminants and/or environmental media, and for the
purpose of inspecting the adequacy of site management activities; (2) to
information relating to any applicant's or enrollee's current and past
activities concerning contaminants; and (3) to documents relating to the
current and past contamination of a local brownfield site.
(g) Prescribing mechanisms for the office to determine whether the
remedial actions are complete and to issue documentation indicating that
the remedial actions are complete, including through the issuance of a
certificate of completion.
(h) Providing for the issuance of a clean property certification to
those properties that have successfully completed the local brownfield
cleanup program or other programs equivalent to the local brownfield
cleanup program.
(i) Establishing procedures and enforcement mechanisms, including
recording of the declaration of covenants and restrictions and
notification of the department of buildings and other appropriate
agencies of such declaration, to ensure that the owner of the local
brownfield site or its successors or assigns continues in full force and
effect all institutional and engineering controls required at the site
in accordance with the local brownfield cleanup agreement, remedial
action work plan, declaration of covenant and restrictions, site
management plan, and any other applicable document or plan. The
procedures shall include the process for notifying the public regarding
compliance with institutional and engineering controls.
(j) Requiring notice to the office of any change of use at a local
brownfield site and an opportunity for the office to prohibit such
change of use for cause.
Section 24-904
§ 24-904 Eligibility. The office shall determine whether to accept or
reject an application to participate in the local brownfield cleanup
program.
(a) The office shall reject the application if:
(1) the real property does not meet the definition of a local
brownfield site as provided in section 24-902 of this chapter;
(2) there is an action or proceeding relating to the local brownfield
site against the applicant that is pending in any civil or criminal
court in any jurisdiction, or before any city, state or federal
administrative agency or body, wherein the city, state or federal
government seeks penalties or the investigation, removal, or remediation
of contamination; or
(3) there is an order against the applicant providing for the
investigation, removal, or remediation of contamination relating to the
local brownfield site.
(b) The office may reject the application if the office determines
that the public interest would not be served by accepting the
application.
Section 24-905
§ 24-905 Citizen Participation.
(a) The borough president and council member representing the area in
which the local brownfield site is located, community board for the
district in which the local brownfield site is located, residents living
on or immediately adjacent to the local brownfield site, community based
organizations, and other appropriate community groups shall be notified
upon receipt by the office of the application to participate in the
local brownfield cleanup program; before the office finalizes a remedial
action work plan or approves a report on remedial action; and before the
enrollee commences construction at the local brownfield site.
(b) The office shall provide opportunities for public comment and
shall prescribe a procedure for enrollees to make documents available to
the public.
Section 24-906
§ 24-906 Certificate of Completion.
(a) A certificate of completion shall include (1) a finding that the
enrollee has successfully completed the local brownfield cleanup
program, (2) a statement that, subject to the provisions of this section
and except as provided in the remedial action work plan, site management
plan, declaration of covenants and restrictions, or certificate of
completion, the city shall not take or require any further investigatory
or remedial action against the site and the enrollee, his or her
successors, and his or her assigns, regarding the contamination
addressed at the site, and (3) a recommendation that no other
governmental entity take or require any investigatory or remedial action
against the site and the enrollee, his or her successors, and his or her
assigns, regarding the contamination addressed at the site. The director
shall seek to enter into agreements with federal and/or state agencies
and other entities that formally recognize cleanups for which a city
certificate of completion has been issued, and that stipulate that the
federal and/or state agency or other entity does not intend or
anticipate taking further actions requiring additional cleanup and
investigation for contamination that an enrollee has appropriately
addressed under the local brownfield cleanup program, subject to such
terms and conditions as may be required by the federal and/or state
agency or other entity. Nothing in this section shall in any way be
interpreted as a binding legal commitment or obligation on behalf of the
director to enter into such an agreement with the federal and/or state
agency or other entity for any site enrolled in the local brownfield
cleanup program, nor in any way restrict the director's discretion in
negotiating the terms and conditions of such an agreement with the
federal and/or state agency or other entity.
(b)(1) The city nonetheless shall reserve all of its rights concerning
any further investigation and/or remediation the office deems necessary
due to:
(i) environmental contamination at, on, under, or emanating from the
local brownfield site if, in light of such conditions, the site is no
longer protective of public health or the environment; or
(ii) non-compliance with the terms of the local brownfield cleanup
agreement, the remedial action work plan, the site management plan,
declaration of covenants and restrictions, or the certificate of
completion; or
(iii) fraud committed by the applicant in the application for or by
the enrollee during participation in the local brownfield cleanup
program; or
(iv) a written finding by the office that a change in an environmental
standard, factor, or criterion upon which the remedial action work plan
was based, renders the local brownfield site remedial program
implemented at the site no longer protective of public health or the
environment; or
(v) a change in the local brownfield site's use subsequent to the
office's issuance of the certificate of completion unless additional
remediation is undertaken as determined by the office, which shall meet
the standard for protection of public health and the environment that
applies under this chapter.
(2) In the case of a volunteer, subparagraph v of paragraph one of
this subdivision shall not apply if the property has been remediated for
unrestricted use as provided in section 27-1415 of the environmental
conservation law.
(c) The certificate of completion provided pursuant to this section
shall run with the land, extending to the enrollee's successors or
assigns through acquisition of title to the local brownfield site and to
a person who develops or otherwise occupies the local brownfield site;
provided, however, that such persons act with due care and in good faith
to adhere to the requirements of the local brownfield cleanup agreement,
remedial action work plan, site management plan, declaration of
covenants and restrictions, and certificate of completion. The
certificate of completion does not extend, and cannot be transferred, to
a person who is responsible for the disposal or the discharge of
contaminants on the local brownfield site according to applicable
principles of statutory or common law liability as of the effective date
of the certification of completion issued pursuant to this chapter,
unless that person was party to the local brownfield cleanup agreement
for the local brownfield site.
(d) The provisions of this section shall not affect an action or a
claim, including a statutory or common law claim for contribution or
indemnification, that an enrollee has or may have against a third party.
(e) Nothing in this section shall be construed to affect the liability
of any person with respect to any costs, damages, or investigative or
remedial activities that are not included in the local brownfield
cleanup agreement, or remedial action work plan for the local brownfield
site.
Section 24-907
§ 24-907 Civil Penalties.
Any applicant, enrollee, or recipient of a certificate of completion
who misrepresents any material fact related to the investigation,
remediation or site management of a local brownfield site shall be
liable for a civil penalty of not more than twenty-five thousand
dollars. Such civil penalty may be recovered in a proceeding before the
environmental control board. Such proceeding shall be commenced by the
service of a notice of violation returnable before the environmental
control board.
Section 24-908
§ 24-908 Withholding of permits.
Where the office has determined that the owner of a local brownfield
site or its successors or assigns has failed to continue in full force
and effect all institutional and engineering controls required at such
site in accordance with any applicable document or plan, it shall notify
the department of buildings of such failure and the department of
buildings shall withhold the issuance of permits from such site.
To the extent possible under law, Friends of Devin Balkind for Public Advocate has waived all copyright and related or neighboring rights to New York City Administrative Code. This work is published from: United States.
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