Governor Cuomo Proposes Major Changes to State Brownfield Cleanup Program

In his budget proposal unveiled on January 21, Governor Andrew Cuomo included recommendations that would significantly change the New York State Brownfield Cleanup Program.

Among the revisions he has recommended to the Legislature are the following:

  • The deadline for sites to obtain their Certificates of Completion (COCs) in order to be eligible for tax credits under the Program would be extended until December 31, 2025. However, sites currently in the Program will need to obtain their COCs by December 31, 2017 to qualify for the existing level of tax credits.
  • For sites admitted to the Program after April 2015, tangible property (development) credits would be available only for sites in environmental zones, sites where the projected cost of cleanup exceeds the value of the property as clean, or sites containing affordable housing. For sites meeting these criteria, tax credits would potentially be increased from current levels. However, sites not meeting these criteria would be ineligible for any type of development-related tax credit.
  • Tax credits available for site preparation (cleanup) costs would be retained, but new limits would be placed on what expenses would qualify for reimbursement.
  • The definition of “Brownfield Site” would be expanded to include any site which has levels of contamination above cleanup standards established by the Department of Environmental Conservation (DEC).
  • There would be a new, streamlined non-tax credit cleanup program for the sites not seeking tax credits.
  • DEC oversight costs would be eliminated for sites being cleaned up by parties not responsible for the original contamination; for other sites, DEC would be authorized to negotiate a reasonable, flat fee cost reimbursement.
  • Sites classified on the State Superfund list as “Class 2” (representing a significant threat to human health or the environment) would be eligible for admission to the BCP if being cleaned up by a party not responsible for the original contamination, and DEC can find no responsible party available to perform a cleanup.
  • Hazardous waste taxes and fees imposed by the State would be waived for sites being remediated pursuant to a Memorandum of Agreement between DEC and a municipality (e.g., under the New York City Voluntary Cleanup Program).

These proposals are similar to those made last year by the Governor. During the 2014 legislative session, the Assembly and Senate were unable to reach agreement with the Governor on amending the Program. Instead, they passed a 15-month extension of the sunset date for tax credits, which the Governor vetoed in late December.

It remains to be seen whether the Governor’s proposals will have any greater traction this year. One thing is for certain: with tax credit eligibility expiring on December 31, 2015, all parties will have a powerful incentive to reach a resolution of these issues during the current session of the Legislature.

We will be following these developments closely and will continue to report on them as they occur. If you have any questions or would like further information on the BCP or these proposed changes, please do not hesitate to contact us.

David J. Freeman is a Director in the Gibbons Real Property & Environmental Department.
Print