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Brownfield Cleanup Program

Disclaimer: These pages will be updated on or about July 1, 2015 to reflect the recent legislative changes to the Brownfield Cleanup Program.

A brownfield site is real property, the redevelopment or reuse of which may be complicated by the presence or potential presence of contamination. Specific examples include abandoned gas stations, former drycleaners, old factory and mill complexes, and foundries. The potential liability and financial uncertainty surrounding the remediation of these properties makes them less attractive to developers. They often remain underutilized or abandoned, contributing to urban blight and increasing development pressure on "greenfields".

Brownfield Cleanup Program Goal

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.

Eligible Sites

Any real property, the redevelopment or reuse of which may be complicated by the presence or potential presence of a hazardous waste, petroleum, pollutant, or contaminant, except:

  • Sites listed as Class 1 or 2 (See Hazardous Waste Site Classification) in the Registry of Inactive Hazardous Waste Disposal Sites; 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) ("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.

How to Apply

Brownfield Cleanup Agreement

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). 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.

BCP Application Process Flowchart - An illustration of the Brownfield Cleanup Program application process, from pre-application to an executed Brownfield Cleanup Agreement.

BCP Reporting Requirement

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 requiremnts and ceritfications, 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.

Citizen Participation

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.

Remedy Selection

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):

  • 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 NYSDOH.

Certificate of Completion

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. Tax credits will be for site preparation, on-site remediation, and the tangible property (also known as the redevelopment credit). The tax credits for individual sites may vary depending on when the site was accepted into the BCP.

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