OER Adopts Rule Easing Path For Removing E-Designations From Properties

February 18th, 2018

The New York City Office of Environmental Remediation (OER) recently adopted revisions to its regulations governing the E-Designation program that will make it easier for property owners to remove the hazardous materials E-Designation (Haz Mat E). We previously discussed the E-designation program in a Post covering the tools available for developing contaminated sites.

Pursuant to Section 11-15 of the New York City Zoning Resolution (“ZR”), E- Designations are  assigned to tax lots during proposed zoning actions to satisfy the City Environmental Quality Review (CEQR). A copy of ZR 11-15 is available Here.

E-Designations may be assigned for noise, air quality or hazardous materials. The E-Designation provides notice to developers that certain environmental requirements must be satisfied before the property can be redeveloped. OER has promulgated regulations that establish the procedures for complying with and removing E-Designations. The types of actions triggering E-Designation are discussed in a DOB Memo

The Department of Buildings (DOB) will not approve permit applications or issue a building permit for certain types of work for tax lots subject to an E-Designation until OER issues either a Notice of No Objection or a Notice to Proceed (NTP). OER will issue an NTP after it approves remedial action plan for the tax lot(s) subject to the Haz Mat E. When the cleanup is completed, OER will issue a Notice of Satisfaction (NOS). DOB will not issue a Certificate of Occupancy for sites subject to a Haz Mat E until OER issues the NOS.

ZR 11-15 provides that where the OER NOS indicates that a tax lot that has an (E) designation requires ongoing site management, OER may require that a declaration of covenants and restrictions governing the ongoing site management requirements be recorded against the tax lot(s). The E-Designation will remain on the tax lot so that future work may be subject to the E-Designation

There may be situations where a property owner or developer can permanently remove a Haz Mat E as opposed to simply complying or satisfying the Haz Mat E requirements. A Haz Mat E can be removed from the tax lot(s) by the Department of City Planning when OER has issued what is known a final NOS. In the past, OER  would issue a final NOS when the remediation achieved a Track 1 cleanup. The recent amendments to 15 RCNY §24-08 now authorize OER to issue a final NOS when the remediation allows the tax lot to be put to any use allowed on the site that does not require engineering and institutional controls. OER will send the final NOS to DOB and DCP within ten (10) days.

The amendment also applies to noise and air quality “E” designations. The rule clarifies that where a development project with an E-Designation for noise and/or air quality has been built out to its full development potential according to zoning, and installation reports demonstrate that the noise or air quality requirements have been fully completed, the E- Designations for air quality and noise can be removed from a tax lot consistent with Section 11-15 (d)(1) of the Zoning Resolution of the City of New York.

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