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New Application Process Takes Effect for New York Brownfield Cleanup Program, Additional Regulations Pending

The New York State Department of Environmental Conservation (NYSDEC) has announced that as of July 1, 2015, the reformed New York State Brownfield Cleanup Program (BCP) became effective.  NYSDEC transitioned to a new application form and application guidance as of July 1, incorporating new eligibility criteria under the BCP reforms.  A property’s eligibility for the BCP is now based on the presence of contaminants above New York’s Soil Cleanup Objectives (SCOs) or other applicable standards, criteria, or guidance.  This replaces the BCP’s former eligibility determination based on the potential complication of reuse or redevelopment by the actual or reasonably suspected presence of contaminants. 

NYSDEC also announced that as of July 1 “volunteers” in the BCP (who were not responsible for the release or disposal of contaminants at the property) are no longer responsible to pay the State’s oversight costs at the property, consistent with the BCP’s statutory reforms.

Though NYSDEC has announced the effectiveness of these aspects of the BCP, several other components of the BCP cannot be implemented until NYSDEC promulgates new regulations, as required by the enactment of the BCP reforms.  NYSDEC has proposed new regulatory definitions for the terms “affordable housing project” and “underutilized.”  These definitions are prerequisites to the effectiveness of the BCP reforms affecting eligibility for tangible property tax credits for properties in New York City, and the final definition of “affordable housing project” will determine statewide eligibility for the BCP’s affordable housing tax credit bonus.  The proposed regulations also include a new definition of “brownfield site,” based on the demonstrated presence of contaminants above SCOs or other applicable standards, criteria, or guidance.

The proposed regulatory definitions cannot be promulgated until after the end of their public comment period, on August 5, 2015.  During the comment period, NYSDEC will hold a public hearing on its proposed regulations on July 29, 2105.  As a result of this schedule, the BCP reforms relying on these definitions cannot be implemented until the new regulations are formally promulgated, in August 2015 at the earliest. 

The BCP reforms also allow NYSDEC to promulgate regulations instituting the new BCP-EZ program.  The BCP-EZ will allow parties in the program to address lightly contaminated sites under a streamlined program to obtain liability releases, while waiving potential eligibility for tax credits.  For many sites, the BCP-EZ program will effectively revive the State’s former Voluntary Cleanup Program.  NYSDEC has announced, however, that it does not expect to propose regulations for the BCP-EZ program until early 2016, so the BCP-EZ program is unlikely to be available until the summer of 2016.

With NYSDEC’s introduction of the new BCP application form and guidance, as well as the text of the proposed regulations, prospective BCP applicants can begin to prepare application materials for the program, and can also preliminarily assess whether a property may qualify for entry into the BCP, and eligibility for tax credits.  The new information on NYSDEC’s timing in instituting the BCP-EZ program also provides applicants with a potential timeframe for entry into that program, though the specifics of the program remain to be seen since they will rely in large part on NYSDEC’s regulations.

© 2020 Beveridge & Diamond PC National Law Review, Volume V, Number 183

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About this Author

Stephen L. Gordon Environment & Land Use Attorney Beveridge & Diamond New York, NY
Principal

Steve’s practice includes providing legal services to local government, energy, real estate development, natural resource, manufacturing and waste management companies in all aspects of environment and land use law.

Representative matters during the past several years include numerous administrative and judicial proceedings relating to hazardous waste and sanitary landfill issues, environmental impact statements and public hearings for the siting of major electric generating facilities, large commercial and industrial real estate developments, major industrial waste disposal...

212-702-5410
John H. Paul Environmental & Energy Attorney Beveridge & Diamond New York, NY
Principal

John's practice focuses on environmental and energy law, project development, and environmental quality review of project proposals.

He assists clients in permitting, regulatory compliance, and enforcement matters involving waste management and disposal, hazardous wastes, bulk storage, wastewater, and air emissions. He advises clients with regard to remediation of contaminated properties and brownfield development, particularly on properties involving multiple ownership interests and complicated histories. He also advises and represents property owners and developers with regard to laws governing the development and use of waterfront and wetland properties.

John works with project development teams in planning, permitting, contracting, and transactions in support of large-scale development. This work has included energy and transmission projects on brownfields and municipally-owned properties, as well as submarine and wetland installations. Environmental impact review is a fundamental part of this work, and John helps clients manage the process to streamline review in support of reliable and defensible agency approvals.

John’s litigation practice includes federal and state class action defense, cost recovery, enforcement defense, and defense of citizen suits on behalf of site owners and operators, municipalities, and past owners of contaminated properties.

While at Pace University School of Law, John was awarded the White Plains Bar Association's Environmental Law Scholar Award. He served as Managing Editor of the Pace Environmental Law Review for 2002-2003. Before entering law school, John served in the U.S. Peace Corps in the Republic of Moldova, where he was an Associate Professor of English at the Moldovan state university.

212-702-5456
Michael G. Murphy Energy & Land Use Attorney Beveridge & Diamond New York, NY
Principal

Michael provides concrete, pragmatic advice that helps clients solve problems and achieve their goals in matters involving energy, land use, permitting, compliance, contracts, and litigation.

He worked for several years in construction before earning his undergraduate degree in Environmental Science and making a decision to enter the practice of environmental law. Today, he follows a similar non-traditional path in advising his clients—eschewing cookie-cutter approaches. He dives into the factual and legal issues, learning what is unique about his client, and tailors his advice to...

212-702-5436