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Brownfield Cleanup Agreements

Brownfield Cleanup Agreements (BCAs)
(see also ECL §27-1409)

A Brownfield Cleanup Agreement (BCA) is required for all parties who wish to participate in the Brownfield Cleanup Program (BCP). By executing a BCA, an Applicant makes a commitment to undertake certain remedial activities under DEC's oversight. The obligations incurred by an Applicant under a BCA depend to some degree upon the Applicant's status as either a Participant or a Volunteer. A BCA may be terminated by an Applicant at any time upon written notification to DEC; DEC may terminate a BCA if the Applicant fails to substantially comply with the terms and conditions of the BCA.

Standard Brownfield Cleanup Agreement (PDF)(117kB)

BCA Overview

The BCA will provide for the investigation and cleanup of the site. To the extent that one or more Applicants under the BCA meet the definition of a Participant (see ECL 27-1405(1)(a)), then the BCA will also provide for the investigation and cleanup of contamination which has emanated from the site to off-site locations.

  • The BCA will provide for the terms and conditions set forth in ECL 27-1409, 6 NYCRR 375-1.5 and 6 NYCRR 375-3.5, and such other terms and conditions as DEC determines appropriate.

  • DEC will issue one Certificate of Completion (COC) for the property identified in the BCA.

  • Where two or more Applicants enter into the BCA, one of which is a Participant, the BCA:

    • will not be drafted to distinguish between the roles and responsibilities of the individual Applicant;
    • will require on-site and off-site remedial work;
    • will provide for a COC to be issued only upon completion of all on-site and off-site remedial work (only one COC per BCA); and
    • will not assign state costs to a specific Applicant.
  • The effective date of the BCA is the date signed by the Director of the Division of Environmental Remediation. Project costs, for which tax credits may be claimed, start to accrue from this day forward.

Executing a BCA

  • Three original copies of the BCA will be sent to the Applicants for signature and return to DEC for execution. No changes are to be made to this BCA by the applicant. If the original BCA sent to the applicant is copied, retyped or in any way changed without prior approval by DEC it will be returned unsigned with a new original for execution. If this second version is not returned as provided, the application will be considered denied. If the Applicant identified the need for any changes to the BCA, the will notify DEC of the necessary change and, if accepted, DEC will issue a new BCA incorporating the change for the Applicants signature.

  • The signed BCA is to be returned by the Applicant to the Director of the Division of Environmental Remediation and must be received no later than 60 days after the date of DEC's approval letter. In the event the BCA is not signed and returned to DEC within this timeframe, DEC will consider the Applicant withdrawn without prejudice and the offer to enter the BCP will be deemed rescinded.

Termination of BCA

  • Applicant or DEC may terminate the BCA consistent with the provisions of 6 NYCRR 375-3.5(b), (c), and (d) by providing written notification to the parties listed in the BCA.

    • If the BCA is terminated by either party, the Applicant remains responsible for payment of the remaining costs due to the State pursuant to the BCA;
    • Once the BCA for a site is terminated, any deferral of Registry listing ends and an appropriate site classification may be assigned by DEC.
  • DEC may terminate the BCA for cause. Failure to substantially comply with the BCA's terms and conditions constitutes cause to terminate. The terms and conditions of the BCA include the schedule(s) in approved work plans. Accordingly, the failure to initiate, proceed with, or complete the remedial program in accordance with its schedule is cause to terminate the BCA.

  • Prior to DEC terminating a BCA, DEC will:

    • Notify the Applicant in writing of its intention to terminate the agreement and the reasons for the intended termination; and
    • Provide the Applicant with a reasonable opportunity of not less than 30 days from the date of the notification letter to correct deficiencies.

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