This fall New York City will open a local voluntary cleanup program for light to moderately contaminated sites that state programs generally exclude. The city has also created the nation's first local brownfield office, vesting broad authority to develop brownfields in a single unit of local government.

The Office of Environmental Remediation will function as a regulatory agency, managing two significant cleanup programs. It will administer a system of grants to advance brownfield projects. It will facilitate the revitalization of neighborhoods with clusters of brownfields. It will train developers, community groups and citizens through workshops in brownfield development. And it will advise City Hall and fellow agencies on strategy for contaminated sites.

These recent developments in New York City represent a bold experiment in municipal management of brownfields, a field that states have regulated since Minnesota created the first brownfield program in 1988. Mayor Michael R. Bloomberg has promoted local management of brownfields since April 2007 when he unveiled PlaNYC, a comprehensive sustainability plan for the city.

Return to the High Line — © 2009 Ed Yourdon

The city believes that local management offers certain benefits: faster oversight of contaminated sites, which can accelerate economic development in a flat economy. It allows for effective management of an interdisciplinary field, melding the interests of developers, neighborhoods and city agencies into effective local policy. And it promotes the protection of public health through effective management of residual site contamination.

In its first year, OER has focused on development of the local cleanup program: establishing its legal foundation with passage of a local law—the New York City Brownfields and Community Revitalization Act—that Mayor Bloomberg signed into law in May; the design of the program's technical elements; and building support for the state's first local cleanup program among state officials, environmental and environmental justice groups, developers, and the local brownfield industry.

Lessons learned
The director of the city brownfield office is Daniel C. Walsh, who has managed the state's brownfield and superfund programs in New York City for the past five years. The design of the local program reflects lessons Walsh learned while managing the state program. Under the local law, OER will manage light to moderately contaminated sites, while sites with complex contamination, such as chlorinated solvent sites with offsite impacts and manufactured gas plant sites, will remain under state management.

Eligible sites for the city program include sites with historic fill, consisting of ash and construction wastes, which New Yorkers dumped in low-lying areas to create building sites for three centuries. Historic fill now covers approximately one-fifth of the city's land surface, yet it is excluded from state brownfield programs. OER also seeks to manage petroleum spill sites, and DEC and OER are working on an agreement for oversight of petroleum spills at sites admitted to the city program.

Beyond eligible sites, the city program borrows heavily from the state brownfield program for several reasons. The state program produces high-quality remedies, which the city seeks to duplicate to build support for a permanent local cleanup program and demonstrate to critics that a city can safely manage cleanups. Moreover, by adopting a program that adheres to the state's model, Walsh hopes that DEC will embrace the city program by agreeing not to litigate against parties who remediate sites in the city program.

The city program has the same structure, documents and review process as the state program and uses identical standards and criteria. Parties familiar with the state program will quickly recognize the core elements of the city program. Remedies must protect public health and the environment and be consistent with a site's current and anticipated use. The city program is open to the same parties: volunteers and participants who are liable for site contamination. Applicants execute a local cleanup agreement that sets forth their program obligations. Parties must thoroughly investigate sites and select remedies based on the state's cleanup tracks, soil standards and site management plans. Parties certify remedies are complete and once verified, earn a certificate of completion and city liability release.

But there are new elements, departures from the state model intended to shorten the time required for a developer to navigate the city program. At pre-application meetings, OER will provide developers and consultants with templates that specify what site information OER requires in each program document. In another change, developers will delay entry into the city program until their consultant has completed a thorough study of site contamination and proposed a remedy. OER staff will review both simultaneously with a 30-45 day public comment period. If consultants adhere to the templates, OER will hand developers a remedy decision three to four months after they enter the city program, which will allow construction to begin.

Another innovation is the role of the city health department. Like the state health department which must approve proposed remedies in the state program in addition to the DEC, the city's Department of Health and Mental Hygiene will review and approve proposed remedies in the city program to ensure they are protective of public health.

Walsh has introduced sustainability into the city program. First, sustainability is a remedy selection factor in the local program, which will allow enrolled parties to select a remedy with sustainable features over one that is not. Second, OER will ask developers to identify, in a summary statement in a proposed remedial plan, all remedial elements that increase the sustainability of a cleanup.

The city and state programs take sharply different to financial incentives. The city will offer developers and site owners grants of $30,000 or $50,000. Developers will use the funds to pay for pre-development, investigation or cleanup services performed by a pre-qualified vendor that best advance a project. In contrast, project owners who complete the state brownfield program are entitled in major state tax credits once remedies are complete and buildings are ready for occupancy.

In another new feature, OER will issue city Clean Property Certificates to all sites that complete cleanups in the city and state brownfield programs. The certificates are a tangible symbol of the city's recognition of a successful remediation. All sites that successfully navigate either program are eligible for the certificates, under a program which OER will initiate by year's end.

Finally Walsh has designed an effective enforcement program for management of residual contamination which is left behind at many remediated city sites, whether in the state or new city program. In the local program, OER will not issue a certificate of completion until all physical and legal controls that that prevent human exposure to residual contamination are recorded in a site's real property deed. If the owner later fails to periodically certify that controls remain in effect, OER may rescind the certificate of completion and city liability release. In addition, OER will alert the city Department of Buildings, which will deny future requests for site permits that may compromise the site remedy.

Office of Environmental Remediation
At OER Walsh has assembled a staff of 15, including a dozen engineers and geoscientists, many with prior experience managing contaminated sites for state or city agencies. They are tasked with a myriad of duties.

Community Revitalization
In New York City, brownfields are often found in low and moderate income communities in formerly industrial areas. To foster community-based planning of such areas, the state legislature passed the Brownfield Opportunity Area program in 2003 to fund neighborhood revitalization plans and the investigation of strategic brownfield sites.

Today, community-based organizations with state funds are developing plans for 16 BOA areas across the city. Many groups have made limited progress in part because of delays in receipt of state funds as well as the challenge of developing citizen-led plans for city neighborhoods. To assist BOA groups, OER will serve as an intermediary between BOA groups, city agencies and policymakers. Ideally by facilitating discussion between these groups and city development agencies, city support for new neighborhood plans is hoped to emerge.

To jump start BOA planning and site redevelopment, OER will offer a series of financial incentives to non-profit developers of projects consistent with a BOA plan. First, non-profit developers of BOA-consistent projects that enter the city brownfield program will be eligible for $50,000 grants. Even if such developers never enter the city program, they will be eligible for $20,000 grants from OER for pre-development and investigation services. In addition, these developers will be eligible for an additional $5,000 technical assistance grant that will provide guidance on planning and management of a remediation project. Finally, non-profit developers enter BOA-consistent projects in the city program, OER will waive the program's $1,000 enrollment fee.

TRAINING
Working with industry, OER offers free Brownfield for Beginners workshops every six months to a broad audience of private developers, community development organizations, planners, city agencies, students and the public. The first workshop, held in December, 2008, featured short presentations by industry experts on site investigations and the brownfield cleanup process. Topics included soil vapor, management of historic fill, the cost of remediation stages and reducing legal liability. It drew more than 200 people. The second session, entitled "Where is the Money?", focused on educating developers and community organizations on available grants, loans and other financial incentive programs that promote the proper cleanup of contaminated land. It also attracted more than 200 people. OER is developing a third session on sustainable brownfield development scheduled for December.

The E-Designation Program
In addition to the local cleanup program, OER currently manages the E-designation program, an existing city cleanup program that oversees the investigation and remediation of rezoned land. Through rezoning, property with potential hazardous material contamination can receive an E-designation, which prevents an owner from obtaining Building Department permits until contamination issues are addressed. Currently, more than 3,000 parcels, .003 per cent of all city tax lots, have E designations for hazardous materials.

Under Mayor Bloomberg, the city has witnessed a record number of major rezonings. Since 2002, the City has completed 84 (check) city-initiated, major rezonings, covering 30,319 (update) acres. This has created hundreds of new E sites.

Pursuant to PlaNYC, OER hired key staff and assumed management of the E-designation program from the city Department of Environmental Protection in March. Despite the difficult economic climate that has halted financing of new projects, OER currently oversees investigation and cleanup of approximately 200 E sites.

Vacant Property Environmental Database
Another PlaNYC initiative is a current OER study of historical contamination of the city's vacant commercial and industrial land, which consists of 5,100 parcels. A consultant is reviewing fire insurance maps and other sources to document the environmental history of each parcel including the presence of historic fill. Through a search of government databases, the consultant will also determine if a petroleum spill or an E-designation is present at each parcel. Once a vacant property environmental database of these parcels is built, it will be integrated into a web-based application that will be publicly available on OER's website. The application, which will allow developers, local community boards and the public to search parcels of interest for development opportunities, should be available this winter.

Partnership of Brownfield Practitioners
OER has persuaded brownfield stakeholders in the city to establish a voluntary association to provide community benefits associated with the sustainable redevelopment of city brownfields.

In its first year, 36 member organizations, consisting of environmental consulting firms, law firms, remediation contractors and community-based organizations, have joined the Partnership of Brownfield Practitioners. The Partnership has awarded $18,000 in scholarships for the current academic year to local college students interested in pursuing careers in environmental management.

Partnership members will provide green job training to young people in federal job programs who seek work in the brownfield industry. Partnership firms will offer three-month office internships as well as field placements for entry-level workers at brownfield sites.

When the city program opens this fall, the Partnership will offer pro-bono counseling to community members who need assistance understanding a remedy proposed for a site in the local program. An environmental consulting firm from the Partnership with no ties to the project will provide its professional opinion and answer questions about the remedy for the community.

Finally, the Partnership hosted the first annual Big Apple Brownfield Award ceremony that recognized outstanding brownfield projects in eight categories representing various facets of brownfield development.

Mark P. McIntyre is General Counsel, Office of Environmental Remediation , Mayor's Office of Operations, New York City