The 2015 amendments to New York’s Brownfield Cleanup Program (BCP) made a number of substantive changes to the program, including changes to the refundable tax credits, their amount and how they are calculated. The 2015 amendments create “Generation 3” of the BCP. As it relates to sites that entered the BCP before June 23, 2008 (Generation 1 sites), the 2015 amendments required issuance of the site’s Certificate of Completion (COC) by the New York State Department of Environmental Conservation (NYSDEC) on or before December 31, 2017; failure to obtain a COC by that date would allow NYSDEC to amend the Brownfield Cleanup Agreement (BCA) and migrate the site to the Generation 3 program. Among the differences between Generation 1 and Generation 3 programs are significantly different (and in many instances lower) Tangible Property tax credits.
NYSDEC has started to move aggressively to migrate sites to the Generation 3 program. We are receiving correspondence from NYSDEC directing clients to execute BCA amendments (which will place projects into the Generation 3 program), or face the potential of the site being removed from the BCP. It will be interesting to see if there are challenges to NYSDEC’s actions, and how many brownfield sites are impacted.