In September 2022, the NYC Mayor’s Office of Environmental Remediation (OER) published draft rules proposing to establish OER’s authority to commence enforcement actions against parties who fail to comply with OER-approved Site Management Plans (SMPs). The proposed rules would enable OER to issue summonses returnable before the Office of Administrative Trials and Hearings, and seek civil penalties against parties that violate OER SMPs or other OER program requirements.  Anyone who owns an NYC site subject to an E-Designation or Environmental Restrictive Declaration should take note of these proposed rules, as OER proposes a minimum non-compliance penalty of $10,000 and a proposed default penalty of $20,000. In order to avoid these new penalties, prudent owners of OER sites should ensure that they have engaged a Qualified Environmental Professional to complete any necessary OER reporting and confirm that any required institutional and/or engineering controls are in place to protect human health and the environment.

In addition to granting new enforcement authority to OER, the proposed rules clarify existing OER SMP requirements for owners of E-Designation and Environmental Restrictive Declaration sites that are subject to ongoing site management obligations, including the following:

• Where an OER SMP requires periodic reporting, the property owner must submit a written certification each year, unless an alternate schedule is agreed to by OER in writing. This certification must be completed by a Qualified Environmental Professional for all active or passive remedial systems, but the property owner may submit the annual certification for a site where the only institutional controls are related to use restrictions or site cover requirements.
• Specific information to be included in certifications, including but not limited to the following statements:
  • A site inspection was conducted;
  • Institutional controls and/or engineering controls are in place;
  • Nothing has occurred that would impair the ability of the controls to protect public health and the environment or result in a violation or failure to comply with the SMP; and
  • The owner will continue to allow OER to access the site to evaluate maintenance of such controls.
• To the extent an institutional or engineering control fails such that the above certification is not possible, the property owner is now required to timely notify OER of the cause of such failure and submit a workplan and schedule for addressing the failure.

The proposed rules would grant OER enforcement authority to assess a minimum penalty of $10,000 for failure to submit an institutional control/engineering control certification in a form acceptable to OER, with a proposed default penalty of $20,000.  However, if a property owner receives a summons for non-compliance, the property owner may file a certification of correction in response.  If the certification of correction is received in a form acceptable to OER within 45 days of the date of service of the summons, OER would withdraw prosecution of the summons and the respondent would not be subject to any penalty assessment.

Public comments are being accepted by OER through October 28^th, and an online public hearing is scheduled for October 28^th at 11 am.  For more information about these proposed rules, and OER E-Designations and Environmental Restrictive Declarations generally, contact Maggie Macdonald, David Yudelson, or Kevin Rogers.