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Environmental Remediation - Brownfield Cleanup Program - Revised Proposed Regulations

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6 NYCRR Part 375 - Amendments to Brownfield Cleanup Program

On June 10, 2015, DEC formally proposed revisions to 6 NYCRR Part 375 to meet the statutory mandates in Part BB of Chapter 56 of the Laws of 2015, which amended and added new language to Environmental Conservation Law (ECL) Article 27, Title 14 - Brownfield Cleanup Program (BCP), and certain other laws. The proposal of these regulations resulted in amendments to the BCP law becoming effective on July 1, 2015.

This rule making would amend Part 375 to add two new definitions, one for "affordable housing project" and a second for "underutilized." The new BCP law directed DEC to define the terms in regulation and publish the "affordable housing project" definition in the State Register. These definitions, along with the other criteria for eligibility for tangible property tax credits (the site's location in an EnZone or the site meeting the statutory definition of "upside down"), would be used to determine whether a site in New York City will be eligible for those credits. The "affordable housing project" definition would also be used statewide to determine a site's eligibility for the five percent affordable housing tax credit bonus.

This rule making would also amend the "brownfield site" definition at 6 NYCRR 375-1.2(b) to meet the definition in the new BCP law as well as deleting 6 NYCRR 375-3.3(a)(1) to conform to this definition.

The 2015 amendments to the BCP law address the large differences in the potential state tax liability between New York City BCP sites and those in the rest of the State. The primary driver for the regional imbalance within the BCP is high development costs for some downstate projects, which were reflected in excessive tangible property tax credits. Limiting the eligibility of New York City sites to specific affordable housing projects and underutilized properties through criteria established by regulation should help target funds and projects in New York City areas with the most need. The amended definition of "brownfield site" implements a statutory amendment that clarified DEC's use of an environmental standards-based approach to site eligibility determinations to ensure that tangible property tax credits are only afforded to sites with actual contamination rather than potential contamination.

Public Hearing Held and Comments Addressed

One public hearing on the proposed revisions was held in New York City on July 29, 2015 during the public comment period which ended on August 5, 2015. Based on comments received during the public comment period and public hearing, DEC made substantive revisions to the "underutilized" definition; one minor technical change to the "affordable housing project" definition; and no changes to the "brownfield site" definition. DEC also prepared an Assessment of Public Comment. The Express Terms and supporting rule making documents have been revised and a Notice of Revised Rule Making was published in the State Register on March 9, 2016.

Regulatory Documents

Document Repository

The proposed regulation and supporting rule making documents may also be inspected at NYS DEC, Central Office, 625 Broadway, Albany, NY 12233. Please call Angela Chieco for an appointment at (518) 402-9764.

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