Brownfield Cleanup Program
A brownfield site is any real property where a contaminant is present at levels exceeding the soil cleanup objectives or other health-based or environmental standards, criteria or guidance adopted by DEC that are applicable based on the reasonably anticipated use of the property, in accordance with applicable regulations.
The goal of the Brownfield Cleanup Program (BCP) is to encourage private-sector cleanups of brownfields and to promote their redevelopment as a means to revitalize economically blighted communities. The BCP is an alternative to greenfield development and is intended to remove some of the barriers to, and provides tax incentives for, the redevelopment of urban brownfields.
2015 BCP Program Reform
Reforms to the BCP program effective July 1, 2015 will hasten the redevelopment of brownfield sites while improving the environment by cleaning up contamination. As part of these reforms, a new BCP-EZ program has been established in law. The BCP-EZ will provide applicants with lightly contaminated sites a path to a liability release in exchange for site cleanup, while waiving eligibility for tax credits.
- BCP-EZ Status: The law requires DEC to promulgate regulations before the program can be implemented. DEC currently has a 6 NYCRR Part 375 regulations proposal out for comment with promulgation required by October 1, 2015 for definitions related to the BCP. DEC plans to start the process for adding the BCP-EZ and other required updates to Part 375 within the next few months and does not expect to have proposed regulations until early 2016. It is not likely the BCP-EZ program will be available until the summer of 2016.
- Volunteer Oversight Costs: The recent changes to the BCP include a change to subdivision 2 of section 27-1409 of the ECL which removed the obligation for Volunteers accepted into the BCP to pay state oversight costs, as of July 1, 2015. This change does not remove the obligation to pay state costs incurred up to that date. DEC will be preparing and sending final bills for state cost incurred up to July 1, 2015 for all BCP sites with approved brownfield cleanup agreements based on our regular schedule for such billings. All Volunteers will receive a final bill through this date over the next twelve months, which is our regular billing cycle.
The following revised eligibility guidance will apply to real property seeking entrance to the BCP. Eligible sites are any real property where a contaminant is present at levels exceeding the soil cleanup objectives or other health-based or environmental standards, criteria or guidance adopted by DEC that are applicable based on the reasonably anticipated use of the property, except:
- Sites listed as Class 1 or 2 (See Hazardous Waste Site Classification) in the Registry of Inactive Hazardous Waste Disposal Sites where a viable responsible party has been identified;
- Sites on the USEPA National Priorities List (NPL);
- Hazardous waste treatment, storage, or disposal facilities (TSDF's) permitted under the Resource Conservation and Recovery Act (RCRA) that are owned by a viable responsible party ("interim status" facilities are eligible);
- Sites subject to a cleanup order under Article 12 of the Navigation Law (oil spill prevention, control, and compensation) or under Title 10 of ECL Article 17 (control of the bulk storage of petroleum); or
- Sites subject to any on-going state or federal enforcement actions regarding solid/hazardous waste or petroleum.
A new application form for the Brownfield Cleanup Program has been developed. Any BCP applications submitted using the old form will be returned to the requestor.
Point of Contact: Prior to applying, applicants should contact the Point of Contact for the DEC region in which the project is located to schedule a pre-application meeting. (See Division of Environmental Remediation Contact Persons and Phone Numbers.)
- Pre-Application Meeting: Complete and submit a pre-application worksheet (PDF) (100 kB) before a pre-application meeting, so that any issues that may potentially delay DEC's approval of the application can be identified and resolved.
- BCP Application Form and Guidance (PDF) (384 kB):Applicants should review BCP application instructions, complete the form and submit the application to DEC.
- BCP Application to Amend Brownfield Cleanup Agreement and Amendment (PDF) (169 kB): To amend an existing Brownfield Cleanup Agreement, applications should review application instructions, complete the form and submit the application to DEC.
Application Completeness Review
Within 30 days of receiving an application, DEC will use best efforts to determine whether the application is complete or incomplete, and notify the applicant accordingly. During this time frame, DEC will use best efforts to determine whether the application contains sufficient information to determine site eligibility in accordance with 6NYCRR Part 375-3.3, although additional information may be requested during the eligibility review. Some key technical info that must be included in a complete application include:
- Figures showing sample locations and contaminants detected in relation to their soil cleanup objectives and groundwater quality standards,
- The Site Description and Environmental Assessment in the format provided by DEC, and
- The tax map identifiers, site latitude and longitude, a site location map, and a site plan drawing required by the application (note that these items were required in the application).
If the application is determined to be complete, DEC will send a Letter of Complete Application that will include:
- The public notice to be sent to all parties on the brownfield site contact list,
- Instructions for publishing the public notice in the newspaper and for mailing the notice to the brownfield site contact list,
- The deadline for publication of the newspaper notice, which must coincide with, or occur before, the date of publication in the Environmental News Bulletin (ENB), which is published on Wednesdays, and
- A certification of mailing form to be returned to DEC along with proof of publication documentation
Application Approval / Disapproval
Following the determination of a complete application, DEC will use best efforts to perform an eligibility review and notify the requestor whether the application has been accepted or rejected within 45 days of the completeness determination (60 days if a final investigation report or draft remedial action work plan is included with the application) or 5 days after the close of the public comment period, whichever is later. See BCP Approval and Disapproval.
All parties must sign a Brownfield Cleanup Agreement (BCA), whereby the Applicant makes a commitment to undertake remedial activities under DEC's oversight. The obligations of an Applicant under a BCA depend upon whether the Applicant is accepted into the BCP as either a Volunteer or a Participant (See 6 NYCRR Part 375-3.2) (link leaves DEC). A Volunteer is an applicant who is not liable for disposal of hazardous waste or discharge of petroleum at the site. A Participant is an applicant who was an owner or operator of the site at the time of disposal of hazardous waste or discharge of petroleum at the site, or who otherwise failed to take reasonable care to stop continuing releases or prevent further releases. See Brownfield Cleanup Agreements.
BCP Application Process Flowchart - An illustration of the Brownfield Cleanup Program application process, from pre-application to an executed Brownfield Cleanup Agreement.
All environmental investigation and cleanup activity must be performed in accordance with Work Plan or design documents approved by DEC. Reports documenting the completion of all work must be submitted to DEC for approval in order to receive a Certificate of Completion. The documents are typically prepared by the Applicant's engineering consultant, and require a certification by either a Qualified Environmental Professional (QEP) or a Professional Engineer (PE) registered in New York State. For more information about the investigation and cleanup guidance, work plan and reporting requirements and certifications, please refer to DER-10/Technical Guidance for Site Investigation and Remediation (PDF) (1.1 mB). Commonly required report and work plan submittals are described on the BCP Work Plan and Report Documents page.
To facilitate the remedial process and enable citizens to participate more fully in decisions that affect their health, the DEC will require opportunities for citizen involvement and will encourage consultation with the public early in the process.
A Citizen Participation Plan which provides details on the citizen participation activities that will occur at several milestones during a BCP project must be submitted within 20 days of the executed Brownfield Cleanup Agreement and must be approved by DEC before any other work plans/reports can be approved. See DER-23 / Citizen Participation Handbook for Remedial Programs (PDF) (1.5 mB). The handbook provides details of the requirements of the citizen participation program for the BCP. Section 3 of DER-23 addresses the minimum requirements for public notice and comment at the various stages of a BCP project.
The selection of remedy is based on the characterization of nature and extent of contamination on the site and qualitative exposure assessment. A Participant in the Brownfield Cleanup Program must evaluate and implement an effective remedy that addresses not only contamination on-site but any contamination that has migrated off-site. A Volunteer in the Brownfield Cleanup Program must evaluate and implement an effective remedy to address the contamination on-site as well as prevent further migration of contamination to off-site properties.
The Remedial Alternatives Analysis Report identifies one or more remedial alternatives and evaluates the effectiveness of each alternative with respect to the remedy selection evaluation criteria as presented in 6 NYCRR Part 375 and DER-10. Remedies in the BCP are selected from four cleanup tracks (See 6 NYCRR Part 375-3.8)(link leaves DEC):
- Track 1 - no restrictions on the use of the property;
- Track 2 - restricted use with generic soil cleanup objectives (SCOs) based on the intended use of the property-residential, restricted residential (single family houses not allowed), commercial, or industrial;
- Track 3 - restricted use with modified SCOs based on the same uses described in track 2 above;
- Track 4 - restricted use with site-specific soil cleanup objectives, where the shallow exposed soils must meet the generic SCOs used for track 2 above.
Once a remedy has been proposed, a fact sheet will be issued noticing the availability of the Remedial Work Plan (Remedial Alternatives Analysis or Remedial Action Work Plan) and presenting the proposed remedy for a 45-day public comment period.
DEC will consider the public comments for final remedy selection, have the applicant revise the plan as necessary, and issue a final Decision Document which describes the selected remedy. The applicant(s) may then design and perform the cleanup action to address the site contamination, with oversight by DEC and the NYS Department of Health.
DEC issues a Certificate of Completion at the completion of a BCP project and upon a determination that the remedial action objectives for the BCP site as defined in the Decision Document have been achieved.
A Certificate of Completion allows the Applicant to receive a limitation of liability to the State of New York which applies to contamination identified by the remedial program.
In addition, a Certificate of Completion makes the Applicant eligible to apply for BCP tax credits. The tax credits for individual sites may vary depending on when the site was accepted into the BCP.
- Finalizing Remedial Projects: Easements, Certificates of Completion, and Templates
- Environmental Easements
- Survey Requirements
- BCP Tax Credits
- Subpart 375-3: Brownfield Cleanup Program Regulation (link leaves DEC)
More about Brownfield Cleanup Program:
- 2015 Enacted Budget Brownfield Cleanup Program Reforms - Sensible reforms to catalyze redevelopment while providing the means to improve the environment and clean up contaminated sites.
- Brownfield Cleanup Program - Work Plan and Report Documents - All environmental investigation and cleanup activity must be performed in accordance with work plan or design documents approved by DEC.
- BCP Application Process - Flowchart - An illustrated view of the DEC Brownfield Cleanup Program approval process.
- BCP Approval and Disapproval - Approval and Disapproval process for the NYS Brownfield Cleanup Program.
- BCP Document Certification - Most Work Plans and Reports submitted under the BCP must be certified by either a Professional Engineer or a Qualified Environmental Professional.
- BCP Citizen Participation Milestones - Citizen Participation activities occur at several milestones during a Brownfield Cleanup Program project.
- Public Comment on Brownfield Cleanup Program Applications - Procedures for submitting comments to NYSDEC on Brownfield Cleanup Program Applications
- Brownfield Site Certificates of Completion - The DEC issues Certificates of Completion for Brownfield Cleanup Program sites in accordance with Chapter 1 of the Laws of 2003 established the Brownfield Cleanup Program.
- Brownfield Cleanup Agreements - A Brownfield Cleanup Agreement is required for all parties who wish to participate in the Brownfield Cleanup Program.
- Common Deficiencies in Brownfield Cleanup Applications - This page identifies six items commonly left out of or incorrectly presented on applications for the Brownfield Cleanup Program