The New York State Department of Environmental Conservation (NYSDEC) recently announced that some reforms to the Brownfield Cleanup Program (BCP) became effective on July 1, 2015 (see Legal Update, New York State Extends Brownfield Cleanup Program). Other changes from the April legislative reauthorization and reform of the program have not yet been implemented as they require additional regulatory changes that are still forthcoming.

On July 1, 2015, the NYSDEC transitioned to a new BCP application form, which adopts the amended eligibility standards identified in the April legislation. The new form can be found on the NYSDEC website. Eligibility for the BCP is now based on a property's level of contamination above soil cleanup objectives, or other health-based or environmental standards, criteria or guidance adopted by NYSDEC based on the reasonably anticipated use of the property.

While the application amendments have already gone into effect, several other BCP reforms cannot be implemented until NYSDEC promulgates new regulations. Some of these regulations are contingent on new regulatory definitions being finalized.

The NYSDEC has already proposed new regulatory definitions for the terms "affordable housing project" and "underutilized." A public hearing was held on July 29, 2015 regarding the proposed definition of "underutilized." The definition was criticized by those in attendance for being inconsistent with the Legislature's intent in enacting the BCP reforms.

The definitions of "affordable housing" and "underutilized" are critical elements of the eligibility criteria for the new New York City tangible property tax credits included in the BCP reforms. The final definition of "affordable housing project" will also determine state affordable housing tax credit bonus eligibility.

The public comment period ended on August 5, 2015. The proposed definitions and all reforms that rely on these definitions cannot be implemented until the regulations are officially promulgated. NYSDEC expects to adopt a regulation defining “underutilized” by October 1, 2015, but has not announced a date for the definition of "affordable housing project."

The BCP-EZ program, created by the BCP reforms, creates a new expedited environmental liability release only cleanup program for those lightly contaminated sites that are not seeking tax credits. NYSDEC does not expect to propose regulations for the BCP-EZ program until early 2016, which means it likely will not be implemented until the summer of 2016.

The release of the new application forms allows potential applicants to the BCP to: