New revisions to the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) have been enacted as part of the Brownfields Utilization, Investment, and Local Development Act of 2018 (“BUILD Act”). Key changes include extension of the Bona Fide Prospective Purchaser (“BFPP”) defense to tenants, increased funding for remediation grants and new authorizations for federal and state funding through 2023.
Continue Reading CERCLA Changes Bring More Funding for Cleanups and Comfort for Tenants

As proffered by Governor Andrew Cuomo in his proposed 2019 budget, payment of certain business tax credits, including those under the New York State Brownfield Cleanup Program (“BCP”), would be deferred for three years for those claiming more than a combined $2 million in such credits. For taxpayers with more than $2 million in credits in the 2019 and 2020 tax years, deferred credits would be allowed in tax years starting in 2021 and would only provide 50 percent of the deferred credits in 2021, 75 percent of the remaining credits in 2022 and the remainder in 2023. No interest would be paid on these deferred tax credits.
Continue Reading Controversial Tax Credit Deferral Not Included in NYS Budget

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.
Continue Reading Old Brownfields Become “New” BCP Sites

ExcavatingmachineA preview of at least some of the proposed revisions to the New York State Department of Environmental Conservation’s (“NYSDEC”) regulations for the Brownfield Cleanup Program (“BCP”) (6 N.Y.C.R.R. Part 375) was revealed in May 2017, with official release anticipated later this year. Key changes are expected to include new program and tax credit eligibility requirements as well as clarifications to aspects of program implementation, all in an effort to provide more consistency across remedial programs and to generally update the BCP, now over a decade old.
Continue Reading NYSDEC Set to Propose Revisions to the Brownfield Cleanup Program: A Preview of Changes

In a veto message dated December 29, 2014, New York Governor Andrew Cuomo vetoed legislation passed by both houses of New York’s legislature earlier this summer that would have extended New York’s very successful Brownfield Cleanup Program (BCP) through March 31, 2017. By vetoing this legislation, the December 31, 2015, sunset for the Program remains in place, jeopardizing brownfield projects already underway and assuring very few, if any, new BCP projects will be entered into the Program.
Continue Reading New York Brownfield Cleanup Program Extender Unexpectedly Vetoed, Leaving the Program Adrift

New York’s Brownfield Cleanup Program (BCP) is among the most successful brownfield programs in the nation, driving millions of dollars of investment across the state, and in particular, upstate cities that have benefited greatly from this important economic development tool.

The BCP is due to sunset at the end of 2015.  Given the lead time that most significant brownfield projects have, both houses of the New York State Legislature recognized the chilling effect this sunset date has had, and will continue to have, on critical development projects.  Accordingly, they passed bills early this summer to extend the BCP through March 31, 2017.
Continue Reading New York’s Brownfield Cleanup Program In Limbo

The City of New York has its own Voluntary Cleanup Program (“NYC VCP”). The unique program is working well, particularly for parcels that may not be the right “fit” for New York State’s Brownfield Cleanup Program. The program delivers real benefits for brownfield redevelopment in New York City, including liability releases and financial assistance. The NYC VCP is managed by the New York City Mayor’s Office of Environmental Remediation (“OER”), which is directed by Daniel C. Walsh.
Continue Reading Opportunity for NYC Brownfield Professional Certification

The Brownfield Cleanup Program has encouraged many private-sector cleanups of contaminated real property throughout upstate New York.  By providing tax credits and other methods of funding, New York State has spurred the redevelopment and reuse of land that would otherwise be unused, abandoned and ultimately left to the State for cleanup, slowly, under its strained State Superfund initiative.  Along the way, the Brownfield Cleanup Program has transformed communities and provided economic vitality, jobs and community pride to residents of New York State.  Indeed, since the Brownfield Program began in 2003, over 400 sites have been remediated and redeveloped.
Continue Reading Brownfield Cleanup Program, a Boon to Upstate Development, Under Siege