Brownfield Cleanup Program Summary
Following is a summary of the key elements of the Brownfield Cleanup Program (BCP), including tax credits, definitions, eligible sites and parties, the application process, the brownfield cleanup agreement, investigation and remediation requirements, institutional controls, citizen participation, and liability limitation.
A taxpayer who has entered into a Brownfield Cleanup Agreement (BCA) with DEC may be eligible for tax credits relating to the cleanup and redevelopment of a brownfield site. The New York State Department of Taxation and Finance has released a new publication, "New York State Tax Credits Available for Remediated Brownfields", which describes these credits. A link to this document can be found on the right hand side of this page.
Brownfield: A Brownfield is any real property where redevelopment or re-use may be complicated by the presence or potential presence of a hazardous waste, petroleum, pollutant, or contaminant.
Applicant: An Applicant is a person whose request to participate in the Brownfield Cleanup Program has been accepted by the Department.
Volunteer: A Volunteer is an applicant who is not liable for disposal of hazardous waste or discharge of petroleum at the site, or whose liability arises solely from site ownership acquired after the disposal/discharge of hazardous waste or petroleum provided that the Party has taken reasonable steps to:
- stop any continuing release,
- prevent any threatened future release; and
- prevent or limit human, environmental, or natural resource exposures to any previously released hazardous substance.
Participant: A Participant is an applicant who was the owner or operator of the site at the time of disposal of hazardous waste or discharge of petroleum, or who is otherwise responsible for the contamination.
Contamination: Contamination is the presence of a hazardous waste or petroleum in any environmental media, including soil, surface water, groundwater, air, soil vapor or indoor air.
Permanent Remedy: A Permanent Remedy is a cleanup or remedy that would allow a site to be used for any purpose without restriction and without reliance on the long-term employment of institutional or engineering controls.
An eligible site is 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 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 ECL 27-0901 ("interim status" facilities are eligible);
- Sites subject to a cleanup order or Stipulation 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.
Please see additional information on site eligibility on our main BCP web page.
All parties are eligible EXCEPT:
- those subject to a state/federal enforcement action regarding the site; or
- those subject to an outstanding claim by the Spill Fund.
- The Department can deny eligibility if it determines that a party has:
- been determined to have violated ECL Article 27 (collection, treatment and disposal of refuse and other solid waste);
- previously been denied entry into the BCP;
- committed a negligent or intentionally tortuous act regarding hazardous waste or petroleum;
- been convicted of a violent felony, fraud, bribery, perjury, theft, or an offense against public administration;
- knowingly falsified statements or concealed material facts in a matter before the Department; or
- committed an act or failed to act in a way that could be the basis for denial of a BCP application.
Applications can be obtained from the DEC either in hardcopy or downloaded (see how to apply on our main BCP page). Complete directions for submittal are included with the application.
Before submitting an application, the DEC urges potential applicants to participate in a preapplication meeting to discuss the overall program and ways to streamline the process.
The Department must notify the applicant within 10 days if the application is complete. Once the application and all attachments have been submitted and it is determined to be complete, a 30-day public comment period will commence on the request for participation. The Department must use its best efforts to approve or deny the application within 45 days.
The Department strongly encourages all applicants to schedule a preapplication meeting with Department staff to review the benefits, requirements, and procedures for completing a project in the BCP. Holding preapplication meetings helps projects to be completed more quickly and efficiently. Recommended participants include the Applicant, Applicant's consultant and counsel, the Department's Project Manager, Project Supervisor, Project Attorney, and a representative of the NYS Department of Health (DOH).
- Overview of BCP - general description and typical time frames
- Application/Agreement Process
- Investigation Work Plan, Field Work, and Reporting
- Remedy Selection
- Citizen Participation
Scheduling a Preapplication Meeting
To schedule a BCP preapplication meeting, contact the Regional Program Contact.
A Brownfield Cleanup Agreement (BCA) is required for all parties who wish to participate in the Brownfield Cleanup Program. By executing a BCA, an Applicant makes a commitment to undertake certain remedial activities under the Department'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 the Department; the Department may terminate a BCA if the Applicant fails to substantially comply with the terms and conditions of the BCA.
The main elements of a Brownfields Cleanup Agreement are:
- Description of the Site;
- Description of the Applicant, Including Status as a Participant or a Volunteer;
- Submission and Implementation of a Citizen Participation Plan;
- Development and Implementation of Work Plans;
- Submission and Review of Final Reports;
- Submission of Annual Reports;
- Enforcement as a Contractual Agreement;
- Payment of State Costs;
- Liability Limitation;
- Reservation of Rights;
- Waiver of Claims Against the Spill Fund;
- Change of Use;
- Environmental Easement;
- Progress Reports;
- Dispute Resolution; and
- Miscellaneous Provisions Including a Permit Exemption.
Investigation Requirements - Work Plans and Reports
Goals of a BCP Remedial Investigation
- Define the nature and extent of site contamination in all media both laterally and vertically (Participants must also define any off-site contamination that has migrated from the site);
- Identify contaminant source areas;
- Assess contaminant fate and transport including but not limited to the existing and potential impacts of groundwater contamination on public/private water supplies, surface water, air, soil vapor, and indoor air quality; and
- Produce data of sufficient quantity and quality to support the development of an acceptable Remedial Work Plan or a determination that remediation is not necessary.
Typical Remedial Investigation Work Plan Contents
- Introduction and Purpose
- Site History and Description
- Objectives, Scope, and Rationale
- Field Activities Plan
- Quality Assurance / Quality Control (QA/QC) Plan
- Health and Safety Plans
- Reporting and Schedule
- Citizen Participation Activities (investigation work plans are subject to 30-day public comment prior to Department approval)
Typical Remedial Investigation Report Contents
- Site History and Description
- Description of Work Completed
- Nature and Extent of Contamination
- Comparison with Standards, Criteria, and Guidance
- Data Usability
- Contaminant Fate and Transport
- Qualitative Human and Fish/Wildlife Exposure Assessments
- Summary and Conclusions (including the need for remediation)
In some cases, Applicants have completed partial or full site remedial investigations prior to entry into the BCP. For partial investigations, the Department will determine if the data are useable. For full investigation reports, the Department will determine if the investigation goals and requirements of the BCP have been met or if additional work is needed before a remedy can be selected.
After completion of a remedial investigation showing the need for site remediation, a remedial work plan can be developed. The remedial work plan must include an Alternatives Analysis. For large/complex projects, remedial work plans can be given conceptual approval by the Department before detailed plans and specifications are developed.
Typical Remedial Work Plan Contents
- Introduction and Purpose
- Summary of Site Contamination
- Remedial Action Objectives
- Alternatives Analysis
- Plans and Specifications (can be submitted separately for large/complex projects.)
- Institutional/Engineering Controls (IC/ECs) and Annual Certifications
- Health and Safety Plans
- Quality Assurance/Control Plan
- Project Organization
Features of Alternatives Analysis
- An unrestricted remedy is always evaluated (see also Cleanup Tracks and Tables below).
- If a remedy is proposed that relies upon IC/ECs, the Department can require the evaluation of additional alternatives in some cases. The viability and reliability of any IC/ECs must be evaluated (see also Institutional Controls below).
- An alternatives analysis contains fewer steps than a feasibility study. The main features of an alternatives analysis include:
- Description of Alternative(s) and Identification of Proposed Remedy
- Detailed Analysis: under each of nine remedy selection factors (overall protectiveness, conformance to standards, criteria, and guidance, short-term effectiveness/impacts, etc.), each alternative is evaluated against the factor and compared to any other alternative(s) under consideration. The removal/control of source areas and the stabilization of groundwater plumes must be evaluated.
- Summary of Proposed Remedy: the alternatives analysis concludes with a summary of the main factors that led to the selection of the proposed remedy and a listing of the elements of the remedy.
Remedial work plans are subject to 45-day public comment periods and in some cases, public meetings.
Cleanup Tracks and Tables
The Brownfield Cleanup Program law provides for a multi-track approach to the remediation of soil contamination. Tables containing soil cleanup objectives can be found in 6 NYCRR Part 375 (part 6), the Environmental Remediation Programs Regulations which became effective December 14, 2006.
Track 1 - Unrestricted Use: Generic Soil Cleanup Table
- Site can be used for any purpose
- Land/groundwater use restrictions or institutional/engineering controls (IC/ECs) cannot be employed to obtain the remedial action objectives for the site. (Volunteers who have acted to reduce groundwater contamination to asymptotic levels and who otherwise conform with Track 1 may employ groundwater use restrictions.)
Track 2 - Restricted Use: Generic Soil Cleanup Tables
- Land use and groundwater use restrictions are allowed
- Cannot rely upon IC/ECs to prevent exposures to soil contamination at levels exceeding those specified in the corresponding soil cleanup table Uses generic soil cleanup table for the applicable land use scenario; does not use site-specific soil data
Track 3 - Restricted Use: Modified Soil Cleanup Objectives
- Land use and groundwater use restrictions are allowed
- Cannot rely upon IC/ECs to prevent exposures to soil contamination at levels exceeding those specified in the corresponding soil cleanup table
- Uses site-specific data to generate soil cleanup objectives
Track 4 - Restricted Use: Site-Specific Objectives
- Land use and groundwater use restrictions are allowed
- Can rely upon IC/ECs to prevent exposures to soil contamination
- If soil contamination presents exposure risks above specified levels, the NYSDEC and NYSDOH must find that the cleanup would be protective
- Contaminated soil must be covered by material that meets the requirements of the generic soil cleanup table for the applicable site use:
- one foot for commercial/industrial uses
- two feet for residential uses
The remedial program selected must address sources; which are defined as free product, concentrated solid or semi-solid hazardous substances, dense non-aqueous phase liquid, light non-aqueous phase liquid and/or grossly contaminated soil; based upon a hierarchy of 1) removal and/or containment 2) containment 3) elimination of exposure, or 4) mitigation of exposure.
Must be evaluated for all remedies and the further migration of contamination from the site must be prevented to the extent feasible, including any actions necessary to maintain and monitor the stabilization. At a site being remediated by a participant, the further migration of plumes must be prevented to the extent feasible.
Institutional Control means any non-physical means of enforcing a restriction on the use of real property that limits human or environmental exposure, restricts the use of groundwater, provides notice to potential owners, operators, or members of the public, or prevents actions that would interfere with the effectiveness of a remedial program or with the effectiveness and/or integrity of operation, maintenance, or monitoring activities at or pertaining to a brownfield site.
Engineering Control means any physical barrier or method employed to actively or passively contain, stabilize, or monitor hazardous waste or petroleum, restrict the movement of hazardous waste or petroleum to ensure the long-term effectiveness of a remedial program, or eliminate potential exposure pathways to hazardous waste or petroleum. Engineering controls include, but are not limited to, pavement, caps, covers, subsurface barriers, vapor barriers, slurry walls, building ventilation systems, fences, access controls, provision of alternative water supplies via connection to an existing public water supply, adding treatment technologies to such water supplies, and installing filtration devices on private water supplies.
Features and Requirements of Institutional Controls
- If an IC/EC is used as a component of a site cleanup plan, the Remedial Work Plan must include:
- a complete description of the IC/ECs and the mechanisms that will be used to implement, maintain, monitor, and enforce such restrictions and controls, both by the applicant and by any state and local government
- an evaluation of the reliability, viability, and costs of the long-term implementation, maintenance, monitoring, and enforcement of any IC/EC.
- Financial assurance for the long-term maintenance, monitoring, and enforcement of IC/ECs may be required by the Department.
- Any EC must be used in conjunction with an IC.
- The final remediation report must include a certification that any IC/ECs are included in an environmental easement that has been duly recorded.
- An annual certification, unless agreed otherwise in writing by the Department, must be submitted to the Department that the IC/ECs are in place and protective of public health and the environment.
- The Department must create, update, and maintain a data base available to the public of sites using IC/ECs.
- Any proposal for a change in site use must include an evaluation of the impacts of the change on the viability, reliability, and effectiveness of any IC/ECs.
An Environmental Easement is an enforcement mechanism used for property where the remedial program leaves residual contamination that makes the property suitable for some, but not all uses, or includes engineering controls that must be maintained to be effective. The purpose of the Environmental Easement is to ensure that such use restrictions or engineering controls remain in place. An Environmental Easement:
- can only be created by the property owner (the grantor) through a written instrument recorded in the appropriate county recording office. It can only be granted to the State (the grantee) and can only be extinguished or amended by a written instrument executed by the Commissioner of the Department of Environmental Conservation and duly recorded;
- is binding upon all subsequent owners and occupants of the property. The deed or deeds for the property (as well as any other written instruments conveying any interest in the property) must contain a prominent notice that it is subject to an Environmental Easement;
- may be enforced in perpetuity against the grantor, subsequent owners of the property, lessees, and any person using the property by its grantor, by the State, or by the municipality in which the property is located.
- The Department may revoke the Certificate of Completion issued to any person who intentionally violates an Environmental Easement.
- The State is authorized to enter and inspect any property subject to an Environmental Easement to ensure compliance with the restrictions. The Department may promulgate regulations establishing forms, standards, and procedures for environmental easements.
- A copy of each Environmental Easement must be included in the database established for all brownfield sites.
- The Department must provide a copy of each Environmental Easement, as well as any documents that modify or terminate such easement, to the municipalities in which the property is located.
- The municipalities must notify the Department upon receipt of an application for a building permit or any another application that affects land use or development so that the Department may determine whether the application is consistent with the terms of the Environmental Easement. The municipality may not approve the application unless the Department determines that the approval would be consistent with purpose of the environmental easement.
Certificate of Completion
A Certificate of Completion is issued by the Commissioner once it is determined that remediation requirements have been achieved or will be achieved under an approved Work Plan. Upon issuance of a Certificate of Completion, the Applicant:
- has no liability to the State for hazardous waste or petroleum at or emanating from the Site (excluding liability for Natural Resource Damages for Participants and subject to certain reopeners for all applicants); and
- is eligible for tax credits (a Certificate of Completion is referred to as a Remediation Certificate in the Tax Law).
Issuance of a Certificate of Completion is based upon a review of a Final Engineering Report which contains:
- a description of the remedial activities completed;
- a certification that remediation requirements have been or will be achieved in accordance with approved timeframes;
- site boundaries;
- a description of any institutional/engineering controls (IC/ECs) to be used, including mechanisms to implement, maintain, monitor, and enforce them;
- a certification that any land use restrictions, IC/ECs, and/or any requirements for remedy operation, maintenance, and monitoring (OM&M) are contained in a duly recorded Environmental Easement and that local governments are notified;
- a certification that an OM&M Plan for any engineering controls employed at the Site has been approved by the Department; and
- a certification that any required financial assurance mechanisms have been executed.
A Certificate of Completion may be modified or revoked, following notice to the Applicant and an opportunity for a hearing, if:
- the Applicant has not complied with the terms and conditions of the BCA;
- the Applicant misrepresented a material fact in the Application as to its eligibility or in a certification that the cleanup levels required under the BCA were reached; or
- there is good cause for modification or revocation.
A Certificate of Completion may not be issued to any Participant who has not resolved any liability to the Spill Fund under the Navigation Law for the site. Following issuance of a Certificate of Completion, a Volunteer waives any right it may have to make a claim against the Spill Fund with respect to the site.
Citizen Participation Milestones in BCP Projects
Citizen participation activities occur at several milestones during a BCP project:
When BCP Application Deemed Complete
- Develop public contact list and establish a document repository;
- Publish a notice of Applicant's request to participate in the BCP in a local newspaper, the Environmental Notice Bulletin (ENB), and to those on the public contact list;
- 30-day public comment period; and
- Develop CP Plan before beginning investigation.
Before DER Finalizes Remedial Investigation Work Plan
- Notice and fact sheet to contact list describing plan, and
- 30-day public comment period.
Before DER Approves Proposed Remedial Investigation Report
- Notice and fact sheet to contact list describing the RI Report.
Before DER Finalizes Proposed Remedial Work Plan
- Notice and fact sheet to contact list describing plan;
- 45-day public comment period; and
- Public meeting, if requested.
Before Applicant Starts Construction
- Notice to contact list announcing the start of construction.
Before DER Approves Final Engineering Report
- Notice and fact sheet to contact list describing the engineering report (the report describes any institutional or engineering controls included in the remedy).
Certificate of Completion (when institutional/engineering controls are used)
- Notice and fact sheet to contact list describing such controls within 10 days of issuance of certificate.
Subsequent to issuance of a Certificate of Completion, an Applicant has no liability to the State for hazardous waste or petroleum at and/or emanating from the Site, subject to certain exceptions and re-openers. Volunteers receive a release for Natural Resource Damages but Participants do not.
This liability limitation applies to the Applicant's successors and assigns who take title to, develop, or otherwise occupy the Site, provided;
- such successors and assigns are not responsible for the disposal or discharge of hazardous waste or petroleum, unless they were parties to the BCA; and
- such successors and assigns act with due care and in good faith to adhere to the requirements of the BCA.
The State reserves all of its rights concerning any further investigation and/or remediation the Department deems necessary due to:
- contamination at, on, under, or migrating from the Site that creates conditions that are no longer protective of public health or the environment;
- noncompliance with the terms of the BCA, the Remedial Work Plan, and/or the Certificate of Completion;
- fraud committed by the Applicant in connection with its application or its participation in the BCP;
- a finding by the Department that the Remedial Program implemented at the Site is no longer protective of public health or the environment due to a change in an environmental standard, factor, or criteria upon which the Remedial Work Plan or no further action determination was based;
- a change in the Site's use that would create conditions not protective of public health or the environment (a Volunteer who remediates a site to unrestricted conditions is not subject to this reopener); or
- failure of the Applicant to make substantial progress toward redevelopment of the Site within three years or if the Applicant unreasonably delays redevelopment considering the size, scope and nature of the proposed development.
A notice must be filed as a Declaration of Covenant with the recording officer of the county in which the Site is located within 30 days of:
- the effective date of the Certificate of Completion; or
- the date Applicant acquires title to the Site, whichever is later.
Brownfield Cleanup Program Contact
For additional information regarding the Brownfield Cleanup Program contact your Regional Program Contact.