Governor Cuomo's 2015-2016 enacted State Budget contains amendments exempting hazardous wastes from cleanups conducted under the New York City Brownfield Program from being subject to fees and assessments under the Hazardous Waste Regulatory Fee Program and the Hazardous Waste Special Assessment Tax. Because these fees and assessments can be quite substantial, this amendment could result in significant savings for those remediating property under the City's Brownfield Program and can provide incentive for owners seeking to remediate their property to enter into the City program.

As we have previously reported, anyone who conducts activities on their property involving the management and disposal of hazardous soils and wastewater could be subject to hazardous waste generator fees levied by the New York State Department of Environmental Conservation (the "NYSDEC") in connection with the Hazardous Waste Regulatory Fee Program, which was established in 1983 under Article 72 of the Environmental Conservation Law ("ECL"), and the Hazardous Waste Special Assessment Tax, which requires generators of hazardous waste to file quarterly tax returns with the New York State Department of Taxation and Finance under Article 27 of the ECL, accompanied by payment of a hazardous waste special assessment. This fee and tax are not well-known and could impact property owners who remove contaminated soil or wastewater from their property during normal construction activities, or who remediate historical petroleum spills on their property.

While both programs have included exemptions for certain hazardous wastes, the exemptions have been somewhat limited. For example, both programs have excluded wastes from cleanups conducted under a NYSDEC Brownfield site cleanup agreement, but neither program extended this benefit to cleanups conducted under the City's local program. Thus, property owners denied application into the State Brownfield Program were at an additional disadvantage and, until now, had little financial incentive for applying to the City's Brownfield Program. However, now that the 2015-2016 enacted State Budget exempts hazardous waste from cleanups, or for which disposal is required under New York City's local Brownfield cleanup program, from such fees and assessments, there is a real incentive for those denied admittance into the State Brownfield Program to seek entrance into the City's program.

Fees under both programs can be substantial. Fees under the Hazardous Waste Regulatory Fee Program are assessed based on the tonnage of hazardous waste generated per year and apply to persons generating at least 15 tons per year. For the period beginning January 1, 2010, the fee is $130 per ton of hazardous waste and, depending on the amount of hazardous waste generated, can go as high as $800,000 with additional fees ranging from $3,000 to $6,000 assessed against generators of hazardous wastewater. A separate set of fees apply to treatment, storage and disposal facilities. NYSDEC will typically rely on hazardous waste manifests and annual reports required to be filed by generators under the ECL to determine fees. Taxes under the Hazardous Waste Special Assessment Tax can also be significant, as the amount of the assessment is based upon the tonnage of hazardous waste generated and the method of disposal, and can range from $27.00 per ton for disposal in a landfill to $2.00 per ton for on-site incineration, as specified by the statute. Separate fees are assessed against treatment, storage and disposal facilities.

Thus, fees and assessments under the Hazardous Waste Regulatory Fee Program and the Hazardous Waste Special Assessment Tax can be quite significant depending on the size and scope of the remediation, and the changes introduced under the enacted State Budget make entrance into the City's Brownfield Program more valuable for those denied admittance into the State's Brownfield Program.