Governor Andrew Cuomo and the New York State Legislature have reached an agreement to amend and extend the State's Brownfield Cleanup Program (BCP) in advance of December 31, 2015, when tax credit eligibility under the program would have otherwise expired. Legislation reflecting these revisions passed both houses of the Legislature and was signed by the Governor on April 1.

Highlights of the key amendments to the BCP are as follows:

New Objective Definition for Eligible Sites

  • The definition for "Brownfield site" is amended to make eligible any site which has contamination in excess of standards set by the NYS Department of Environmental Conservation (DEC) based on the reasonably anticipated use of the property. This more objective standard should put to rest the uncertainty that prospective BCP applicants had with respect to site eligibility under the BCP.

BCP-EZ Program

  • There will be a new and expedited liability-release-only cleanup program (known as the BCP-EZ program) for sites willing to forego tax credits.

"Grandfathered" Sites

  • As for timing, those sites currently in the BCP, and those which are admitted prior to December 31, 2022, will be eligible for tax credits for certain development costs, if they obtain their Certificates of Completion (COCs) by March 31, 2026, subject to the following limitations:  
    • Sites admitted on or after the later of (a) July 1, 2015 or (b) the date on which the DEC proposes regulations defining "underutilized" (by October 1, 2015) will be subject to newly-enacted limits on tax credits.  
    • Sites admitted prior to June 23, 2008 will be "grandfathered" and will remain within the existing tax credit scheme if the sites obtain their COC by December 31, 2017.  
    • Sites admitted from June 23, 2008 until the later of (a) July 1, 2015 or (b) the date on which the DEC proposes regulations defining "underutilized" (by October 1, 2015) will be "grandfathered" into the existing tax credit scheme if they obtain their COCs by December 31, 2019.

Sites in NYC

  • With respect to sites in New York City that are newly-admitted, or that are currently in the program but fail to obtain a COC before the deadlines (December 31, 2017 or December 31, 2019, as applicable) to be considered "grandfathered" in order to qualify for development tax credits they will need to meet one or more of the following criteria:  
    • be located in an Environmental Zone (high poverty and unemployment rates);  
    • meet the definition of "affordable housing" (currently undefined); or  
    • be "upside down" (i.e., the projected cost of investigation and cleanup exceeds 75% of the value of the property if uncontaminated) or "underutilized" as will be defined by regulations to be promulgated by the DEC by October 1, 2015.

Increased Credits

  • Development tax credits will be increased for qualifying sites that are in Environmental Zones or Brownfield Opportunity Areas, achieve Track 1 (unrestricted use) cleanup standards, provide affordable housing, or are used primarily for manufacturing activities.

Newly Eligible Sites

  • Class 2 (significant threat to public health or the environment) sites will be eligible for entry into the BCP if they are being cleaned up by a Volunteer (a party not responsible for the original contamination) and the DEC has not identified a viable responsible party who can pay for the cleanup.

Fees

  • DEC oversight fees will be waived for Volunteers. The DEC is given authority to negotiate reasonable flat fee arrangements for payment of its oversight costs for all other BCP participants.

  • State hazardous waste disposal taxes and fees are waived for U.S. Environmental Protection Agency or court-ordered cleanups under the federal Superfund law or under written agreements with a municipality having a memorandum of agreement with the DEC (such as NYC).

New Limits on Credits

  • "Site preparation costs" and "groundwater remediation costs" which are eligible for the site development tax credit are both redefined to include those costs "necessary" to the site's remediation and qualification for a COC.

  • The costs of foundations that exceed the cost of cap requirements under applicable regulations will no longer be counted toward the development tax credits.

  • Payments to "related parties" (those with 10% or more common ownership) that count toward the development tax credits have been limited by the amendments.