As an update to a previous legal alert posted on May 16, 2017 and titled “New York State DEC Revises Brownfield Program Policy DER-32,” as of July 28, 2017 the New York State Department of Environmental Conservation (DEC) issued a final amended program policy document known as DER-32 (the “Final Amended DER-32”), which relates to the Brownfield Cleanup Program (“BCP”). Specifically, DER-32 relates to the BCP application and agreement process. The purpose of the revised DER-32 is to define the BCP application process and the terms of participation in order to provide greater program predictability in light of the BCP reforms included in the 2015 New York State budget.
As issued, the Final Amended DER-32 differs slightly from the draft version. For example, the DEC added further clarification to Section V(F)(8), which sets forth the standard for amendments to a Brownfield Cleanup Agreement (“BCA”) based on when a site enters into the BCP and whether it has received a Certificate of Completion (“COC”). Section F(8)(a) states as follows:
Any site that entered into the BCP in Generation 1, which has not received a COC by December 31, 2017 or any site that entered into Generation 2, which has not received a COC by December 31, 2019, will remain eligible for the BCP, but will become subject to the Generation 3 requirements of the BCP through an amendment to the BCA.
DEC clarified in a footnote that currently there are no Generation 1 sites that meet the above criteria, but there are 38 Generation 2 sites that appear to meet the above criteria. DEC also clarified throughout the Final Amended DER-32 that the En-Zone status of a site is considered locked-in as of the date of the original application acceptance. Section V(G)(1)(a) relating to termination of a BCA has also been revised in the Final Amended DER-32 to provide the following:
If the BCA is terminated by either party, a Volunteer remains responsible for payment of the remaining costs due to the State pursuant to the BCA until July 1, 2015; while a Participant remains responsible for payment of the remaining costs due to the State pursuant to the BCA until the date of termination.
A Volunteer’s liability arises solely as a result of ownership, operation of or involvement with the site subsequent to the disposal of hazardous waste or discharge of petroleum. N.Y. Environmental Conserv. Law § 27-1405(1)(b). In contrast, a Participant is a person or entity who owned the site when the disposal or discharge occurred or is responsible for the contamination. Id. at § 27-1405(1)(a). Considering the deadline for a Volunteer’s responsibility to pay any remaining costs to the State if the BCA is terminated has already come and gone, BCP Participants should be aware of their obligation to pay any remaining costs to the State through the date of termination.
Although Final Amended DER-32 was issued on July 28, 2017, the policy becomes effective on September 8, 2017.