The Dollars and Cents of Health & Safety Programs

NYC OER Notice of Public Hearing and Opportunity to Comment on Proposed Rules

The Office of Environmental Remediation (“Office” or “OER”) operates a local land cleanup program that promotes cleanup and redevelopment of vacant and contaminated land in New York City. With OER’s oversight, property owners and real estate developers implement remedial actions to clean up land prior to the construction of new buildings. Having operated its program for over 10 years, OER has identified an area where owners and developers violate program requirements, which OER seeks to address through this rulemaking.

Enforcement action is appropriate when owners violate an OER Site Management Plan (“SMP”) by failing to submit reports to OER certifying that their long-term site controls continue to function as intended. Depending on a project’s remedy, property owners may be subject to ongoing site management obligations to ensure their sites remain safe for building occupants after cleanup is complete. Such obligations typically include periodic site inspections and reporting to OER and are documented in an SMP. Failure to comply with an SMP could undermine the efficacy of a remedy and present a risk to public health and the environment.

The proposed amendments would enable OER to issue summonses and impose civil penalties against parties that violate SMPs or other OER program requirements. With this new enforcement mechanism, OER’s goal is to bring these parties into compliance and ensure continued protection of public health and the environment.

The proposed amendments would also clarify existing OER SMP requirements for owners of (E) Designation and Environmental Restrictive Declaration sites that implement a remedy with OER’s oversight and are subject to ongoing site management obligations

Proposed Changes

Below is a summary of the proposed rule changes, for the complete update of the proposed changes click here.

Subchapter 7 of Chapter 14 of Title 43 of the Rules of the City of New York

  • Where an OER site management plan requires periodic reporting, the owner of such site must annually submit, unless an alternate period is provided in writing by OER, a written institutional control/engineering control certification:
  • The certification must be included in a report summarizing the site management performance for the certification period, in such form and manner as OER may require, and must state specific information
  • Only one certification must be filed for each site. If a site is comprised of multiple properties or parcels, the owner will arrange to file one consolidated certification.
  • In the event that the certification cannot be provided due to a failure of one or more of the institutional or engineering controls, the owner must provide to OER specific information.
  • In addition to the periodic reporting requirement, the owner must timely notify OER of any failure of one or more of the institutional or engineering controls and must provide a work plan to remedy any failure of the institutional or engineering control.
  • OER will review the work plan referenced in clauses (iv) and (v) of this subparagraph as provided in sections 43-1474 and 43-1476, and the owner must implement the corrective measures in accordance with the approved work plan. The owner must submit a certification, satisfying the requirements of item (b) of clause (iv) of this subparagraph upon completion of the corrective measures.

 

Addition of a new Subchapter

Civil penalties.
OER may impose civil penalties in accordance with the following penalty schedule:

 

Violation
Description

Minimum Penalty

Default Penalty

Failure to submit an institutional control/engineering control certification per an OER site management plan

$10,000

$20,000

Summons

  • Civil penalties may be recovered in an action in a court of competent jurisdiction or in a proceeding before an administrative tribunal within the jurisdiction of the Office of Administrative Trials and Hearings. Such proceedings will be commenced by the service of an administrative summons returnable before such tribunal.
  • Unless the Office has accepted a certification of correction, failure to appear at a hearing before the tribunal will result in a default penalty indicated on the penalty schedule

Correction and certification of correction

  • If the respondent files a certification of correction acceptable to the Office within forty-five days from the date of service of the summons, the Office will withdraw prosecution of the summons before the scheduled hearing date, and the respondent will no longer be subject to monetary penalty.
  • The Office will review all certifications of correction and accompanying documentation to determine their acceptability. The Office will notify the respondent if the certification of correction is accepted or rejected and, if rejected, the reasons for the rejection.
  • Failure to submit an acceptable certification of correction for all violating conditions indicated on the summons within the time period prescribed in subdivision a of this section will require the respondent to appear at a hearing before the tribunal.

How can you provide comments to OER on the proposed rules?

Anyone can comment on the proposed rules by:

  • Website. You can submit comments to OER through the NYC Rules website at http://rules.cityofnewyork.us.
  • Email. You can email comments to brownfields@cityhall.nyc.gov.
  • Mail. You can mail comments to OER, 100 Gold Street, 2nd Floor, New York, NY 10038.
  • Fax. You can fax comments to OER, (212) 788-2941.
  • By speaking at the hearing. Anyone who wants to comment on the proposed rule at the public hearing must sign up to speak. You can sign up before the hearing by calling (212) 341-2015. You can also sign up in the hearing room before the hearing begins on October 28, 2022. You can speak for up to three minutes.

 

Deadline

You must submit written comments by October 28, 2022.

About Equity Environmental Engineering

Equity is an award winning environmental consulting firm with offices in New York City and New Jersey. We offer a variety of services including Environmental Engineering; Site Assessments, Investigations and Remediation; Planning, Land-Use & Zoning; Health & Safety; Wetlands; Noise & Acoustic Services; and Traffic Planning.

Need Help With OER Rules and Enforcement Actions
Reach out to Bob Jackson, PE at 973-527-7451 x 103 or  email.

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