New York State Bar Association Environmental Law Section Releases Comments on Brownfield Program Reform Proposals

The Environmental Law Section of the New York State Bar Association has released its Report and Recommendations regarding the proposed extension and reform of the New York State Brownfield Cleanup Program (“BCP” or “Program”).

The Report and Recommendations were prepared by the Section’s Brownfield Task Force, co-chaired by David J. Freeman and Lawrence P. Schnapf. The Task Force spent several months reviewing the proposals for reforming the Program made in Governor Andrew Cuomo’s budget bill and draft bill circulated by the staffs of the Senate and Assembly Environmental Conservation Committees.

The Task Force made detailed recommendations on many of the issues addressed by these proposals. Among the recommendations are the following:

• that the Legislature accept the Governor’s and Assembly’s proposed new definition of a “brownfield site” as a site “where a contaminant is present at levels exceeding soil cleanup objectives or other health-based environmental standards.” This definition would replace the current definition, modeled on federal law, which defines brownfields as sites “which may be complicated by the presence or potential presence” of a contaminant;
•  that the dates for obtaining Certificates of Completion (“COCs”) necessary for eligibility for the Program’s tax credit be extended through December 31, 2025 (or, alternatively, for 10 years from the site’s acceptance into the Program);
•  that there be a separate set of criteria for sites to qualify for tangible property tax (i.e., development) credits, but that the Governor’s and Assembly’s proposed criteria be modified so that more sites can qualify for such credits;
•  that the Legislature authorize a streamlined program for sites not needing tax credits but seeking to have cleanup performed under the supervision of the New York State Department of Environmental Conservation (“NYSDEC”) and to obtain a COC, and a release and covenant not to sue, at the conclusion of successful cleanups;
•  that there be no change in the definition of costs eligible for tax credits under the Program;
•  that the BCP be opened to Class 2 State Superfund and other enforcement sites, as long as those sites are being remediated by volunteers (i.e. , persons not responsible for the original contamination);
•  that the sites cleaned up under approved local government programs be exempted from hazardous waste program fees and taxes; and
•  that liability releases granted under such local programs have the same force and effect as those granted by NYSDEC.

The Governor and leaders of the Senate and Assembly have stated that reform of the BCP is one of their top priorities this year. If so, they will have to reach consensus on these issues quickly in light of the expected adjournment of the Legislature in mid-June.