NYSDEC Hears Comments on Proposed Definition of “Underutilized”

On July 29, 2015, the New York State Department of Environmental Conservation (NYSDEC) conducted a public hearing on its proposed definition of an “underutilized” site for purposes of the 2015 Brownfield Cleanup Act Amendments. As indicated in a prior blog, this definition is critical because being “underutilized” is one of the few ways that a New York City brownfield site can qualify for tangible property credits under the 2015 Amendments.

Approximately 50 people attended the hearing, and NYSDEC heard from five witnesses: Larry Schnapf and me, as Co-Chairs of the Brownfields Task Force of the New York State Bar Association’s Environmental Law Section; Mimi Raygorodetsky, President of the New York City Brownfield Partnership; Michael Brady, Director of Special Projects and Governmental Relations for the South Bronx Overall Economic Development Association (SoBRO); and Linda Shaw, a lawyer in private practice. All but Shaw submitted written statements, and copies of those statements are available through the following links: Raygorodetsky – New York City Brownfield Partnership Statement, Brownfields Task Force of the New York State Bar Association’s Environmental Law Section Memorandum and proposed definition of “underutilized”; Testimony of New York State Bar Association Environmental Law Section; Brady – South Bronx Overall Economic Development Corporation Statement.

Testimony at the hearing was uniformly critical of NYSDEC’s proposed definition. Witnesses noted that it was unrelated to normal concepts of “underutilization,” including being far more restrictive than definitions of the same term in other New York City and State regulations. SoBRO observed that by arbitrarily favoring certain types of projects over others, it would lead to unbalanced development in economically disadvantaged areas. Because NYSDEC’s criteria made it almost impossible for a site to qualify as “underutilized,” the definition was characterized as being inconsistent with the Legislature’s intent.

The official deadline for comments on the proposed definition is August 5, but it is conceivable that NYSDEC will consider comments submitted after that date. Such comments should be submitted as follows:

  1. By email to derweb@dec.ny.gov and please include “Comments on Proposed Part 375” in the subject line of the email; or
  2. By mail to Michael Ryan, New York State Department of Environmental Conservation, Division of Environmental Remediation, 625 Broadway, Albany, New York 12233-7011.

NYSDEC expects to adopt a regulation defining “underutilized” by October 1, 2015.

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