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Revised Regulatory Flexibility Analysis for Small Businesses and Local Governments - 6 NYCRR Part 375

Amendments to 6 NYCRR Part 375

Environmental Remediation Programs - Revisions to BCP Regulations

1. Effect of rule

The revised proposed rule would add or update definitions of the following terms: "brownfield site," "underutilized," and "affordable housing project." These definitions would only affect eligible parties that voluntarily elect to participate in the Brownfield Cleanup Program (BCP). The rule does not impose any mandate to participate. It is unknown how many small businesses or local governments would want to participate in the BCP and thus be affected by the rule.

2. Compliance Requirements

Since the BCP is a voluntary program and the revised proposed rule would only be adding or amending definitions, it would not impose any additional compliance requirements. Thus, no small business or local government would be required to undertake reporting, recordkeeping, or other affirmative acts in order to comply with the revised proposed rule. New York City has volunteered to issue certifications that a property requires "substantial government assistance" described in the definition of "underutilized." Additionally, New York City already enters into regulatory agreements with developers of affordable housing projects. .

3. Professional Services

Since the BCP is a voluntary program and the revised proposed rule would only add or amend definitions, it would not impose any requirements for professional services. Thus, no small business or local government would require professional services in order to comply with the revised proposed rule. The New York State Department of Environmental Conservation (DEC) will continue to post information on its website to explain recent changes in the law and to provide information about the revised proposed rule.

4. Compliance Costs

Since all costs incurred at a site prior to its acceptance to the BCP are ineligible for tax credits, applicants would incur credit-ineligible costs for performing site investigation work prior to the acceptance of a site in order to meet the amended definition of "brownfield site." Nearly all applicants currently conduct this work, or are required to do so by DEC in the context of the review of their application as set forth at 6 NYCRR 375-3.3(a)(4)(ii), under the original definition. Following the implementation of the amended statute, every applicant would be required to provide investigatory information sufficient to satisfy DEC's environmental quality standards prior to acceptance into the BCP.

New York City applicants may incur costs to establish the required criteria for TPCs or costs involved with obtaining a certification that a site would not be developed without substantial government assistance as described in the definition of "underutilized." Should New York City applicants meet the required criteria for TPCs, the costs that are incurred in the application process would be fully or partially offset through tax credits. There may be similar costs to applicants across the rest of the State attempting to increase tax credits through a certification of an affordable housing project.

5. Economic and Technological Feasibility

It is economically and technologically feasible for a small business or local government to comply with the revised proposed rule. There are financial incentives and liability protections for applicants, including small businesses and local governments, to participate in the BCP.

6. Minimizing Adverse Impact

The revised proposed rule would have no adverse economic impact on small businesses and local governments.

7. Small Business and Local Government Participation

DEC continues to post relevant information on its website to assist applicants, some of which may be small businesses or local governments, in understanding the requirements of the BCP. A public hearing on the proposed rule was held during the public comment period (June 10 - August 5, 2015) in New York City on July 29, 2015. Based on comments received, 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. The revised proposed rule making (March 9 - April 8, 2016) also included a 30 calendar day public comment period, and the revised Express Terms and supporting rule making documents were posted on DEC's website. DEC also maintains a listserv to which persons/entities, including small businesses and local governments, may subscribe so that they can receive information about new developments regarding the BCP.

8. Cure Period or Other Opportunity for Ameliorative Action

The rule would only add two new definitions and revise an existing definition to the BCP. Thus, no cure period is needed.


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