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a. To facilitate the remedial process and enable citizens to participate more fully in decisions that affect their health, the office shall require applicants and enrollees to provide opportunities for citizen involvement in the development and implementation of a remedial program and shall encourage applicants and enrollees to consult with the public prior to the office adopting final determinations. The primary goal of the citizen participation program is to facilitate communication between the office and enrollees and the individuals, groups, and organizations that have expressed interest in or are affected by a site, its remedial program, or the decision-making process associated with the remediation of a site.
b. All remedial programs shall include a citizen participation program that, at a minimum, shall include, the preparation of a citizen participation plan, establishment of a document repository and a site contact list, and public notice with a prescribed public comment period at select milestones.
c. The design of any citizen participation plan, including the level of citizen involvement and the tools utilized, shall take into account the scope and scale of the proposed remedial program, local interest and history, and other relevant factors. Citizen participation plans shall embody the following principles of meaningful citizen participation:
1. Opportunities for citizen involvement shall be provided as early as possible in the decision-making process prior to the selection of a preferred course of action by the office and/or the enrollee;
2. Activities proposed in such plan shall be as reflective as possible of the diversity of interests and perspectives found within the community and shall allow members of the public the opportunity to have their views heard and considered, including, where possible, opportunities for dialogue; and
3. The office and the enrollee shall provide full, timely, and accessible disclosure and sharing of reports, including technical data and the assumptions upon which any analyses are based.
d. Upon application to the City voluntary cleanup program, an applicant shall submit a citizen participation plan to the office that shall include at a minimum the following elements:
1. A site contact list;
2. The name and address of a document repository and evidence that the repository has agreed to serve as a repository for the remedial project;
3. Overview of the site's history and contamination issues;
4. Identification of major issues of potential concern to the public related to the site and a description of any mitigation planned to address the issues, if appropriate;
5. A description and schedule of the major elements of the site's remedial program;
6. A description and schedule of citizen participation activities conducted or planned relating to the site; and
7. A description of any additional citizen participation activities needed to address public concerns.
e. All citizen participation plans shall be subject to office review and approval. The citizen participation plan shall be updated, as required by the office, during the implementation of the remedial program.
f. Document repository. The enrollee shall establish a document repository at a location accessible to citizens where they can review the remedial program documents.
1. Documents shall be placed in the repository that are:
B. otherwise designated by the office for inclusion.
2. An enrollee shall ensure that the repository contains all appropriate documents and shall inspect the repository at each citizen participation milestone listed in subdivision g of this section to ensure that the repository contains complete and current project information.
3. The office may allow for a digital document repository to serve as the primary document repository subject to feedback from the community.
g. Public notice and public comment.
1. In addition to distributing a notice of application as required by 43 RCNY § 43-1404(f), public notice, in the form of a fact sheet, and public comment activities are required for each site in the City voluntary cleanup program at the following milestones:
A. Upon the availability of a remedial investigation work plan, if such plan is submitted as part of the application. The applicant shall distribute to the site contact list public notice, in the form of a fact sheet summarizing the contents of the work plan, noting the initiation of a thirty-day public comment period, and identifying the location of the repository where the document can be reviewed. The office shall not approve the remedial investigation work plan until the public comment period has ended.
B. Upon the availability of a remedial investigation report and remedial action work plan. The enrollee shall distribute to the site contact list public notice, in the form of a fact sheet, summarizing the contents of the remedial investigation report and remedial action work plan, noting the initiation of a thirty-day public comment period for the remedial action work plan, and identifying the location of the repository where the documents can be reviewed. The office shall extend the public comment period to forty-five days upon public request and conduct a public meeting upon public request. The office shall not approve the remedial action work plan until the public comment period has ended.
C. At the start of remediation. The enrollee shall distribute to the site contact list a public notice announcing the start of remediation.
D. Upon the issuance of a notice of completion. The enrollee shall distribute to the site contact list a fact sheet announcing the completion of remediation and identifying all institutional and/or engineering controls.
2. Public notices and fact sheets.
A. Unless otherwise determined by the office, all notices and fact sheets for the required milestones and any additional notices and fact sheets required by the office shall be prepared by the enrollee and approved by the office prior to issuance.
B. Office-approved notices and fact sheets shall be distributed by the enrollee to all parties on the site contact list. No other information may be distributed with the notices and fact sheets.
C. Within five days of distributing such notices and fact sheets, the enrollee shall provide proof of compliance with the notice requirements on a form approved by the office.
D. All notices, fact sheets, and project documents shall be included in the document repository.
3. Where the site or adjacent real property contains multiple dwelling units, the enrollee may propose an alternative method, consistent with the citizen participation goals set forth in subdivision a of this section, for providing notice in lieu of mailing to each individual.
h. Public comment period extensions.
1. The office shall consider a request to extend a public comment period provided such request is received at least five days prior to the end of the public comment period.
2. Extensions shall not be greater than thirty days. One automatic extension of fifteen days shall be provided for remedial action work plans upon request.
3. Additional notice is not required upon granting an extension.
i. Interim remedial measures. For interim remedial measures, the office shall not require citizen participation activities unless the scope of the interim remedial measure is likely to represent the remedy or a significant portion of the remedy, in which case the office shall require a thirty-day public comment period.
(Amended City Record 12/28/2015, eff. 1/27/2016)
a. Submissions to the office. Applicants and enrollees shall submit all work plans and reports, including all attachments, appendices, and certifications, in an electronic format acceptable to the office. The office may request a printed copy. The office reserves the right to require submission of large figures and drawings on paper.
b. Financial assurance.
1. Applicability. The office may require, as a condition of accepting any institutional or engineering controls, that the enrollee post financial assurance to ensure the long term implementation, maintenance, monitoring, reporting, and enforcement of any such controls. In considering whether to require financial assurance, the office shall consider factors including, but not limited to:
A. whether one or more innovative technologies have been employed at the site;
B. the length of time to implement the remedial program;
C. the cost of the remedial program;
D. the complexity of the remedial program; and
E. the financial resources available to the enrollee.
2. Financial assurance required under this subdivision shall be in effect and on file with the office before any notice of completion is issued. Allowable financial assurance mechanisms include:
A. trust funds;
B. surety bond guaranteeing payments;
C. letters of credit;
D. insurance; or
E. documentation of a financial capability test, as set forth in of 6 NYCRR § 373-2.8(d)(5).
3. Preparation of estimated amount of financial assurance. If the office requires posting of financial assurance as a condition of accepting institutional or engineering controls, the enrollee shall provide an estimated amount of financial assurance for the office's consideration. The enrollee shall be responsible for having a professional engineer or other qualified environmental professional prepare the estimate, and, in the event the financial assurance is being provided through environmental insurance, for having an independent insurance professional provide a certification that such policy meets the requirements of this subdivision. The estimate shall include an itemized listing of each cost and how the cost was calculated, including the cost of contracting with a third party.
4. Office review of estimated amount of financial assurance. Upon receipt of the financial assurance estimate, the office shall review the estimate and shall assess the basis for the type and extent of impacts used in calculations, and whether the estimated amount is sufficient. The office may accept, modify, or reject the financial assurance estimate.
5. Submittal of financial assurance. After approval of the financial assurance amount and prior to the office's issuance of a notice of completion, the enrollee shall submit an originally-signed financial assurance mechanism to the office. The mechanism shall be in effect when submitted. An enrollee may satisfy this requirement by establishing one or more financial assurance mechanisms. If multiple financial assurance mechanisms are used, the enrollee shall specify at least one such mechanism as "primary" coverage and shall specify the other mechanisms as "excess." An enrollee with obligations for providing financial assurance for multiple sites may combine the required financial assurances for all sites into one or more financial assurance mechanisms.
6. Adjustment of amount of financial assurance. The office shall review the dollar amount of financial assurance at least once every five years. During the review, the office may adjust the amount for inflation based on the United States consumer price index. In addition, the enrollee may request at any time that the amount of financial assurance be adjusted based on factors occurring since the posting of the existing financial assurance. The enrollee shall describe in writing the basis for the adjustment request.
7. Release of financial assurance. The office may release the financial assurance or a portion of the financial assurance, and in doing so shall:
A. notify the enrollee in writing of any release or modification;
B. modify the financial assurance requirement to reflect the release or modification of the financial assurance required; and
C. return to the enrollee such released financial assurance, if applicable, with the notice.
8. Substitution of financial assurance. If the enrollee requests substitution of one type of financial assurance for another, the enrollee shall submit to the office a proposal for alternate financial assurance. The alternate financial assurance must be as secure or more secure than the existing financial assurance as determined by the office. Upon approval and receipt of the alternate financial assurance by the office, the office shall release the existing financial assurance and the office shall notify the enrollee in writing.
c. Change of use.
1. A person or entity proposing to make a change of use, except for a transfer of title to a qualified local brownfield site that results in a change in the party implementing a site management plan, shall provide written notification to the office at least sixty days before the proposed change of use.
2. The notice shall advise the office of the proposed change, including, but not limited to, explaining how such change may affect the site's proposed, ongoing, or completed remedial program.
3. Where a change in use arises from a transfer of title to a qualified local brownfield site that results in a new party implementing a site management plan, such notice shall be included in the next annual certification and site management report to the office, pursuant to 43 RCNY § 43-1407(l)(3). The notice shall include:
A. The name of the new owner and the new owner's contact information, including a contact representative and the contact information for such representative; and
B. A certification that the new owner has been provided a copy of the City voluntary cleanup agreement and a copy of all approved remedial work plans and reports.
4. The office reserves the right to prohibit a change in use for cause.
d. Effective date of submissions and notices.
1. Unless otherwise provided, the effective date of submissions and notices required under this subchapter shall be the date of receipt.
2. The date of receipt of any writing or notice by the office to the enrollee shall be:
A. If served by hand, the date delivered to the enrollee or its designated representative.
B. If mailed, five days after the mailing.
3. The date of receipt of any submission to the office by the enrollee shall be:
A. If served by hand, the date delivered to the office at the address provided on the Office's website.
B. If mailed, five days after the mailing.
e. Participation in the City voluntary cleanup program shall not relieve an enrollee of the obligation to obtain any permit required by state or federal law, rule or regulation for any action undertaken by such enrollee in the course of implementing a remedial program.
f. In accordance with § 27-1303 of the New York state environmental conservation law, the Office shall report suspected inactive hazardous waste sites within the city of New York to the New York state department of environmental conservation.
(Amended City Record 12/28/2015, eff. 1/27/2016; amended City Record 5/4/2017, eff. 6/3/2017)
Subchapter 2: New York City Brownfield Incentive Grant Program
a. Purpose. The New York city brownfield incentive grant (BIG) program is intended to promote the cleanup and redevelopment of brownfield properties in the city of New York.
b. Applicability. Brownfield incentive grants are available to provide financial assistance for
(1) qualified brownfield properties,
(2) preferred community development projects,
(3) e-designation/restrictive declaration hazardous materials sites,
(4) properties in designated coastal flood zones,
(5) applicants pursuing a brownfield opportunity area grant,
(6) a green property certification plaque,
(7) green job training for participants in a job training program, and
(8) recipients of brownfield opportunity area grants for the performance of pre-development services, assessments and investigations, environmental investigations, property remediation, environmental insurance purchase, and technical assistance services and for the development of work plans and applications.
(Amended City Record 5/4/2017, eff. 6/3/2017)
a. "Affordable housing development" means a development that will be built by a developer on a qualifying brownfield property where at least twenty percent of the housing units are affordable to families that earn no more than eighty percent of the average median income of an area, as determined by the United States department of housing and urban development, and that has been issued a letter of interest from a federal, state, or local housing subsidy program.
b. "Brownfield opportunity area" means an area in the city of New York with a concentration of brownfields for which the New York state department of state has awarded a brownfield opportunity area grant to a recipient pursuant to general municipal law § 970-r or that has otherwise been identified by the Office as a place-based community brownfield planning area.
c. "Community based organization" means a community based organization as defined in § 970-r(1)(c) of the general municipal law.
d. "Community facility development" means a development that will be built by a developer on a qualifying brownfield property where the development provides specific benefits to the local community, including, but not limited to, a community facility use pursuant to the zoning resolution.
e. "Designated Coastal Flood Zone" means coastal flood zones designated by the Federal Emergency Management Agency (FEMA) or other coastal flood zones designated or recognized by the City.
f. "E-designation hazardous material site" means a property that has been designated with an (E) on a zoning map, pursuant to § 11-15 of the zoning resolution, because of potential hazardous material contamination.
g. "Grant administration contractor" means an entity under contract with the New York city economic development corporation, the department of environmental protection or the Office for administration of the New York city brownfield incentive grant program. The grant administration contractor shall provide oversight of the grant process, including, but not limited to, review of grant applications including evaluation of eligibility for grants; review of statements of work; establishment and maintenance of a list of qualified vendors; communication with grantees and qualified vendors; and performance of quality control of work products.
h. "Grant payment percentage limit" means the seventy-five percent maximum payment by the Office for eligible costs for approved services and activities performed under a pre-development grant or an environmental investigation grant. The grant payment percentage limit is intended to ensure that the grantee bears some of the costs for pre-development and environmental investigation services and activities. The grant payment percentage limit shall not apply to City pre-enrollment grants awarded to City-funded affordable and/or supportive housing sites or to industrial and manufacturing sites supported by the New York City economic development corporation.
i. "Grantee" means an owner or developer of a qualifying brownfield property, including all parties with an ownership interest in the property, or a recipient of, or an applicant for, a brownfield opportunity area grant in New York city who has been accepted into the New York city brownfield incentive grant program.
j. "Office" means the office of environmental remediation.
k. "Person" means an individual, trust, firm, joint stock company, limited liability company, corporation, joint venture, partnership, association, a local development corporation, or a community development corporation.
l. "Preferred community development project" means a development proposed for a qualifying brownfield property that is:
(1) an affordable housing development;
(2) consistent with the strategic brownfield goals established in a brownfield opportunity area plan pursuant to § 970-r of the general municipal law, as evidenced by a letter from the recipient of a brownfield opportunity area grant pursuant to 43 RCNY § 43-1418(d)(4)(B)(i);
(3) consistent with the strategic brownfield goals established by a place-based community brownfield planning organization recognized by the Office and as evidenced by a letter from the place-based community brownfield planning organization pursuant to 43 RCNY § 43-1418(d)(4)(B)(ii); or
(4) a community facility development.
m. "Qualified vendor" or "vendor" means:
(1) an environmental professional or consultant or firm thereof;
(2) an architect, engineer, attorney, or other professional or firm thereof;
(3) a community based organization preparing an application for a brownfield opportunity grant from the New York state department of state;
(4) a community development corporation, local development corporation, community development financial institution, or another similar entity, that is qualified by the grant administration contractor to perform, subcontract, and/or supervise work eligible for reimbursement under the New York city brownfield incentive grant program;
(5) a workforce development organization; or
(6) a vendor under contract with the New York city economic development corporation, the department of environmental protection or the Office for eligible activities and services pursuant to 43 RCNY § 43-1419.
n. "Qualifying brownfield property" means:
(1) for a pre-enrollment grant, a property that contains a recognized environmental condition;
(2) for an enrollment grant, a track one bonus cleanup grant, a green property certification grant, and a property admitted to the City voluntary cleanup program;
(3) for a climate change resilience bonus cleanup grant, a property admitted to the City voluntary cleanup program that is located in a designated coastal flood zone;
(4) for an e-designation hazardous material remediation grant or a restrictive declaration hazardous material remediation grant, an e-designation hazardous material site or a restrictive declaration hazardous material site respectively;
(5) for a technical assistance grant, a preferred community development project where the developer is a not-for-profit corporation, or a community based organization that seeks to apply for a brownfield opportunity grant from the New York state department of state or perform brownfield planning analyses for place-based community brownfield planning;
(6) for a brownfield opportunity area strategic property bonus cleanup grant, a property that has been designated a strategic brownfield property within the New York state brownfield opportunity area program;
(7) for a brownfield green job training grant, a property admitted to the City voluntary cleanup program or an environmental project recognized by the Office;
(8) for a City pre-enrollment grant, a property to be used for affordable housing and/or supportive housing funded by the New York city department of housing preservation and development, an industrial or manufacturing development supported by the New York city economic development corporation or other project receiving substantial support from the City, or an environmental tax lien site designated by the New York city office of management and budget; and
(9) for a City enrollment grant, a property that is enrolled in the City voluntary cleanup program or the New York State brownfield cleanup program.
o. "Restrictive declaration hazardous material site" means a property with an institutional control, arising from a City environmental quality review and recorded by the property owner, which requires a potential hazardous material condition to be addressed to the office's satisfaction before the property can be developed or an action involving soil disturbance can be undertaken.
p. "Recognized environmental condition" means the presence or likely presence of any hazardous substances on a property under conditions that indicate an existing release, a past release, or a material threat of a release of any hazardous substances into structures on the property or into the ground, ground water, or surface water of the property. The term includes hazardous substances even under conditions in compliance with laws. The term does not include de minimis conditions that generally do not present material risk of harm to public health or the environment.
q. "Strategic brownfield property" means a property within a brownfield opportunity area or place-based brownfield community planning area that has been determined by the community brownfield planning organization to be a strategic site within the brownfield opportunity area program or the place-based brownfield community planning area.
(Amended City Record 12/28/2015, eff. 1/27/2016; amended City Record 5/4/2017, eff. 6/3/2017)
a. Pre-enrollment grants are awarded for services and activities performed at qualifying brownfield properties that are not yet enrolled in the City voluntary cleanup program.
1. Pre-development grants finance the services and activities that usually precede environmental field investigation and advance brownfield projects at an early stage of the project. Pre-development grants may be used for eligible services and/or activities, as provided in 43 RCNY § 43-1419.
2. Environmental investigation grants finance the characterization of a property's subsurface contamination. Environmental investigation services and activities are typically performed after pre-development work and prior to environmental remediation on a brownfield property. Environmental investigation grants may be used for eligible services and/or activities, as provided in 43 RCNY § 43-1419.
3. City pre-enrollment grants finance eligible pre-enrollment activities and services at publicly-owned sites, at affordable and/or supportive housing sites funded by the New York city department of housing preservation and development, at industrial or manufacturing development sites supported by the New York city economic development corporation or other project receiving substantial support from the City, and at environmental tax lien sites designated by the New York city office of management and budget.
b. Enrollment cleanup grants are grants awarded for activities performed at qualifying brownfield properties that are enrolled in the City voluntary cleanup program.
1. Cleanup grants pay for costs incurred in a property's remediation. They may be used for eligible services and/or activities, as provided in 43 RCNY § 43-1419, that are included in, and performed according to the terms of, a remedial action work plan approved by the Office.
2. Brownfield opportunity area strategic property bonus cleanup grants are a type of cleanup grant that is awarded to pay for eligible cleanup services and/or activities at strategic brownfield properties.
3. Track one bonus cleanup grants are a type of cleanup grant that provides funding for track one cleanups, as set forth in 43 RCNY § 43-1407(h)(1) of this chapter.
4. Climate change resilience bonus cleanup grants provide funding to accelerate designated coastal flood zone cleanup and are intended to enhance public and environmental protection.
5. Brownfield green job training grants provide funding for job training program participants to acquire work experience at sites enrolled in the City voluntary cleanup program or on environmental projects recognized by the Office.
6. Green property certification grants pay for a New York city green property certification plaque. To be eligible for a green property certification grant, parties must receive a notice of completion from the Office or a certificate of completion of the New York state department of environmental conservation.
7. City enrollment grants fund eligible cleanup activities at publicly-owned sites, at affordable and/or supportive housing sites funded by the New York city department of housing preservation and development, at industrial or manufacturing development sites supported by the New York city economic development corporation or other projects receiving substantial support from the City, and at environmental tax lien sites designated by the New York city office of management and budget. They may be used for eligible services and/or activities, as provided in 43 RCNY § 43-1419, that are included in, and performed according to the terms of, a remedial action work plan approved by the office or by the New York state department of environmental conservation.
c. Other Grants.
1. Technical assistance grants are awarded to a developer of a preferred community development project where such developer is a not-for-profit corporation, to a community based organization that seeks to apply for a department of state brownfield opportunity area grant, or to a community brownfield planning organization facilitating community brownfield planning activities and services in a place-based community brownfield planning area. The grant covers a range of technical services performed by a qualified vendor for project pre-development, management and technical assistance, as provided in 43 RCNY § 43-1419.
2. Brownfield opportunity area local match grants are awarded to a recipient of a New York state department of state brownfield opportunity area grant or to a community brownfield planning organization identified by the Office that is facilitating brownfield planning activities and services for a place-based community brownfield planning area. For recipients of a New York state brownfield opportunity area grant, this grant assists grantees that meet the local match requirement for a state brownfield opportunity area grant pursuant to general municipal law § 970-r.
3. E-designation hazardous material remediation grants and restrictive declaration hazardous material remediation grants provide funding for hazardous material cleanup at e-designation hazardous material sites and restrictive declaration hazardous material sites that are not enrolled in the City voluntary cleanup program, that have an approved remedial action plan, and that have received a notice of satisfaction from the office for remediation of hazardous material.
(Amended City Record 12/28/2015, eff. 1/27/2016)
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